How To Sue General Automakers For The Death Of A Car With A Defective Ignition Switch

Transcription

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE: No. 14-MD-2543 (JMF) GENERAL MOTORS LLC IGNITION SWITCH LITIGATION This Document Relates to: TRACY and DENISE TUCKER, husband and wife, Case No. v. GENERAL MOTORS, LLC, Plaintiffs Defendant. COMPLAINT (Child Wrongful Death Act IND. CODE ANN ) JURY TRIAL DEMANDED - i -

2 TABLE OF CONTENTS Page I. INTRODUCTION...1 II. JURISDICTION AND VENUE...4 III. PARTIES...5 A. Plaintiffs Tracy and Denise Tucker...5 B. Defendant General Motors, LLC...5 IV. FACTUAL ALLEGATIONS...6 A. The Ignition Switch Defect...6 B. GM Has Known About The Ignition Switch Defect In The Tucker Vehicle, And Millions Of Other Vehicles, Since C. The Tucker Vehicle Is Finally Recalled For The Ignition Switch Defect On July 3, 2014, More Than 10 Years After Old GM Learned Of This Defect, And More Than Five Years After New GM Learned Of It...18 D. The July 2 And July 3 Recalls Are Likely Related To New GM s Litany Of Other Defective Ignition Switch-Related Recalls In E. The Tucker Family, Their Defective Grand Am, And Tanner s Fatal Crash...22 V. TOLLING UNDER IND. CODE ANN VI. CAUSES OF ACTION...27 FIRST CAUSE OF ACTION (WRONGFUL DEATH OF CHILD IND. CODE ANN )...27 A. Strict Liability (IND. CODE ANN , et seq.)...27 B. Failure to Warn (IND. CODE ANN , et seq.)...29 C. Defective Design (IND. CODE ANN , et seq.)...30 D. Fraud by Non-Disclosure...32 VII. PRAYER FOR RELIEF...34 VIII. JURY TRIAL DEMANDED i -

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4 Plaintiffs Tracy and Denise Tucker bring this action against Defendant General Motors LLC ( New GM or Defendant ) for the wrongful death of their seventeen-year-old son, Tanner L. Tucker. Plaintiffs allege as follows: I. INTRODUCTION 1. An auto manufacturer should never put profits ahead of safety. It should alert consumers and the public about any safety defects that exist in its vehicles and it should recall and fix these vehicles. New GM s Vehicle Safety Chief, Jeff Boyer recently proclaimed that: Nothing is more important than the safety of our customers in the vehicles they drive. 1 Yet New GM utterly failed to live up to this commitment, letting cars, including Tanner Tucker s, operate for years with an ignition component just like the one GM s lead engineer called the switch from hell A car manufacturer must also ensure that its vehicles are safe, and have operable ignition systems, airbags, power-steering, power brakes, and other safety features that can prevent or minimize the threat of death or serious bodily harm in a collision. A car manufacturer must take all reasonable steps to ensure that, once a vehicle is running, it operates safely, and its critical safety systems (such as engine control, braking, and airbag systems) work properly while it is being operated. A manufacturer that is aware its vehicles shut down during operation or its airbags fail to deploy must promptly disclose and remedy such defects. 3. To date, General Motors Corporation ( Old GM ) and New GM have collectively sold approximately 13 million automobiles installed with defective ignition switches which can 1 GM Announces New Vehicle Safety Chief, GM News (Mar. 18, 2014), gm.com/media/us/en/gm/news.detail.html/content/pages/news/us/en/2014/mar/0318-boyer.html. 2 Anton R. Valukas, Report to the Board of Directors of General Motors Company Regarding the Ignition Switch Recalls, 5 (2014)

5 slip into the accessory or off position, turning off the engine and the car s vital engine systems without warning, while the car is in motion. This ignition-switch defect disables the power steering and power brakes, and once the car is in this unsafe condition, GM magnifies the risk of injury and death because the defect also prevents deployment of the vehicle s airbags. 4. To stave off Congress and the wrath of the public, GM created a compensation fund. But New GM is only addressing the victims of some of the vehicles with defective switches. The GM Ignition Compensation Fund administered by Kenneth Feinberg covers claims by those injured in vehicles under the February/March and April ignition switch recalls. It excludes claims arising out of the vehicles affected by five other 2014 ignition-switch recalls, which means, on top of the cars eligible for the Fund, another ten (10) million vehicles with defective switches including cars like Tanner Tucker s are on the road and capable of causing fatalities or serious injuries. GM acknowledges 97 deaths (and numerous other life-altering injuries) that are tied to the ignition-switch defect. This death toll accounts for just a subset of the cars containing defective switches eligible for the Feinberg Fund, and therefore understates the truth about the deaths caused by GM s defective switches. 5. Seventeen-year-old Tanner Tucker was tragically killed in August 2010 when his airbags failed to deploy after his vehicle slipped into accessory or off mode and then crashed into a tree. Unbeknownst to Tanner and his family, his 2002 Pontiac Grand Am had a defective ignition switch, a defect that had been concealed from Plaintiffs, other consumers, and the public for more than ten years by Old GM and later by New GM. Tanner s parents, Plaintiffs Tracy and Denise Tucker, and his three siblings were devastated by the mysterious accident and no investigating entity could point to what caused Tanner s vehicle to suddenly lose control and careen off the road. More than four years later that answer came, when the Tuckers received - 2 -

6 an ignition switch recall notice in the mail, alerting them to the deadly defect. A picture of his vehicle shows the key in the accessory position: Tanner Tucker s 2002 Grand Am. Source: Ripley County Sheriff s Department; 8/7/ This suit seeks wrongful death damages on behalf of Plaintiffs Tracy and Denise Tucker arising from New GM s egregious concealment of the defective ignition switch that ultimately caused Tanner s death. 7. Plaintiffs causes of action are brought solely against New GM. 8. All references to General Motors Corporation, Old GM, or pre-sale order conduct in this Complaint are relevant because Plaintiffs claims arise from an accident occurring after the Sale Order in an Old GM vehicle. Under the June 26, 2009 Amended and Restated Master - 3 -

7 Sale and Purchase Agreement, wherein New GM acquired certain Old GM assets, New GM expressly assumed liability for post-sale accidents involving Old GM vehicles causing personal injury, loss of life, or property damage. New GM also acquired knowledge of Old GM s activities and the defective ignition switch via the mind of the employees, officers, managers, books, and records obtained and/or acquired as a result of the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement and subsequent Sale Order. Thus, the duties of Old GM are part of the foundation for the liability assumed by New GM. II. JURISDICTION AND VENUE 9. Pursuant to the Court s instructions, Plaintiffs may file directly in the MDL court and reserve the right to have filed in another district. Plaintiffs filed in this District in order to advance the efficient and orderly resolution of claims arising from Defendant s conduct and its attendant nationwide devastating effects. Filing in this District does not alter the choice-of-law analysis and does not waive Plaintiffs rights to transfer to another district at the conclusion of pretrial proceedings in this case. Therefore, this Complaint is filed by Plaintiffs as if they had filed in the district in which they reside and in which the accident occurred, the Southern District of Indiana. 10. This Court has diversity jurisdiction over this action under 28 U.S.C. 1332(a) because the amount in controversy exceeds $75,000 and Plaintiffs are citizens of a different state than Defendant. 11. This Court has personal jurisdiction over Plaintiffs because Plaintiffs submit to the Court s jurisdiction. This Court has personal jurisdiction over New GM because New GM conducts substantial business in this District

8 12. Venue is proper in this District under 28 U.S.C because New GM, as a corporation, is deemed to reside in any judicial district in which it is subject to personal jurisdiction. III. PARTIES A. Plaintiffs Tracy and Denise Tucker 13. Plaintiffs Tracy and Denise Tucker, husband and wife, are residents of Versailles, Indiana, in Ripley County. They are the parents of decedent, Tanner L. Tucker, a minor at the time of his death on August 7, The Tuckers have three other children: Trent (25-years-old), Ty (17-years-old), and Toria (15-years-old). B. Defendant General Motors, LLC 14. Defendant General Motors, LLC ( New GM ) is a Delaware limited liability company with its principal place of business located at 300 Renaissance Center, Detroit, Michigan, and is a citizen of the States of Delaware and Michigan. The sole member and owner of General Motors LLC is General Motors Holding LLC. General Motors Holdings LLC is a Delaware limited liability company with its principal place of business in the State of Michigan. The sole member and owner of General Motors Holdings LLC is General Motors Company, which is a Delaware Corporation with its principal place of business in the State of Michigan, and is a citizen of the States of Delaware and Michigan. 15. New GM was incorporated in 2009 and, effective on July 10, 2009, acquired substantially all assets and assumed certain liabilities of Old GM through a Section 363 sale under Chapter 11 of the U.S. Bankruptcy Code. New GM assumed specific liabilities of Old GM and acquired substantially all of Old GM s employees, officers, and management personnel. New GM also acquired Old GM s designs, tools, inventory, books, records, and its key contracts, - 5 -

9 among other essential assets. Plaintiffs causes of action are brought against New GM, and Plaintiffs do not assert any causes of action against Old GM. 16. Under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement, New GM expressly assumed liability for post-sale accidents involving Old GM vehicles causing personal injury, loss of life, or property damages. Plaintiffs claims arise from their son s post-sale accident in an Old GM-manufactured vehicle that resulted in his death. New GM is therefore expressly liable to Plaintiffs. 17. New GM also expressly assumed certain responsibilities of Old GM, including the obligation to comply with certain statutory requirements: From and after the Closing, Purchaser [New GM] shall comply with the certification, reporting and recall requirements of the National Traffic and Motor Vehicle Safety Act, the Transportation Recall Enhancement, Accountability and Documentation Act, the Clean Air Act, the California Health and Safety Code and similar Laws, in each case, to the extent applicable in respect of vehicles and vehicle parts manufactured or distributed by Seller. 18. At all times relevant to this lawsuit, Old GM and New GM were in the business of developing, manufacturing, and marketing cars throughout the United States generally, and specifically in Plaintiffs state of citizenship, Indiana. New GM has a network of authorized retailers that sell its vehicles and parts throughout the United States, including Indiana. IV. FACTUAL ALLEGATIONS A. The Ignition Switch Defect 19. In 2014, 2002 Pontiac Grand Ams were recalled because they had a defective ignition switch. 20. The ignition switches in these Pontiac Grand Ams, including Tanner s vehicle, can inadvertently move from the run to the accessory or off position at any time during - 6 -

10 normal and proper operation of the defective vehicles. The ignition switch can move to the off or accessory position for a host of reasons, but typically it would occur when the vehicle is jarred or travels across a bumpy road; the key chain is heavy; or the driver inadvertently touches the ignition key with his knee. When the ignition switch fails, the vehicle suddenly and unexpectedly loses engine power, power steering, and power brakes, and certain safety features are disabled, including the vehicle s airbags. This leaves occupants vulnerable to crashes, serious injuries, and death. 21. The ignition-switch systems at issue are defective in at least three major respects. First, the switches are simply weak. Because of a faulty detent plunger, the switch can inadvertently move from the run to the accessory position. Second, because of the placement of the ignition switch, the driver s knee can easily bump the key (or the hanging fob below the key) and inadvertently cause the switch to move from the run to the accessory or off position. Third, when the ignition switch moves from the run to the accessory or off position, the vehicle s power is disabled, and, in turn, immediately disables the airbags. Thus, when power is lost during ordinary operation of the vehicle, a driver is left without the protection of the airbag system, even if he or she is traveling at high speeds. 22. Vehicles with defective ignition switches are therefore unreasonably prone to involvement in accidents, and those accidents are unreasonably likely to result in serious bodily harm or death to the drivers and passengers of the vehicles. 23. New GM itself has acknowledged that the defective ignition switches pose an increas[ed] risk of injury or fatality and has linked the ignition defect affecting the Tucker vehicle and others in the recall group to at least seven (7) crashes, eight (8) injuries, and three (3) - 7 -

11 deaths. 3 Alarmingly, Old GM knew of the deadly ignition switch defects, including the defect in the Tucker vehicle, and their dangerous consequences since at least 2003, but concealed its knowledge from consumers and regulators. It has linked similarly defective switches existing in other models (but not all that contain the defective switch) to 97 deaths, to date. 4 B. GM Has Known About The Ignition Switch Defect In The Tucker Vehicle, And Millions Of Other Vehicles, Since In January 2003, Old GM opened an internal investigation after it received complaints from a Michigan GM dealership that a customer had experienced a power failure while operating his model year 2003 Pontiac Grand Am. 25. During the investigation, Old GM s Brand Quality Manager for the Grand Am visited the dealership and requested that the affected customer demonstrate the problem. The customer was able to recreate the shutdown event by driving over a speed bump at approximately mph. 26. That customer s key ring was allegedly quite heavy. It contained approximately 50 keys and a set of brass knuckles. 27. In May 2003, Old GM issued a voic to dealerships describing the defective ignition condition experienced by the customer in the Grand Am. Old GM identified the relevant population of affected vehicles as the Chevrolet Malibu, Oldsmobile Alero, and Pontiac Grand Am. 3 GM Announces Six Safety Recalls, GM News (June 30, 2014), /media/us/en/gm/news.detail.html/content/pages/news/us/en/2014/jun/0630-recall.html. 4 David Muller, Approved Death Claims Related to GM Ignition Switch Recall Rise to 97, MLive (May 4, 2015), related_19.html

12 28. But Old GM did not recall these vehicles. Nor did it provide owners and/or lessees with notice of the defective condition. Instead, its voic directed dealerships to pay attention to the key size and mass of the customer s key ring. 29. On July 24, 2003, Old GM issued an engineering work order to increase the detent plunger force on the ignition switch for the Chevrolet Malibu, Oldsmobile Alero, and Pontiac Grand Am vehicles. Old GM engineers allegedly increased the detent plunger force and changed the part number of the ignition switch. The new parts were installed beginning in the model year 2004 Malibu, Alero, and Grand Am vehicles. 30. From 2002 to the present, Old GM and New GM received numerous reports from consumers regarding complaints, crashes, injuries, and deaths linked to the ignition switch defect in the cars, including Tanner s, that were covered under the July recall. The following are just a handful of examples of some of the reports known to Old GM and New GM: 31. On September 16, 2002, Old GM became aware of a complaint filed with NHTSA regarding a 2002 Oldsmobile Intrigue involving an incident that occurred on March 16, 2002, in which the following was reported: WHILE DRIVING AT 30 MPH CONSUMER RAN HEAD ON INTO A STEEL GATE, AND THEN HIT THREE TREES. UPON IMPACT, NONE OF THE AIR BAGS DEPLOYED. CONTACTED DEALER. PLEASE PROVIDE FURTHER INFORMATION. *AK NHTSA ID Number: On June 30, 2003, Old GM became aware of a complaint to NHTSA regarding a 2001 Oldsmobile Intrigue, reporting: CONSUMER NOTICED THAT WHILE TRAVELING DOWN HILL AT MPH BRAKES FAILED, CAUSING CONSUMER TO RUN INTO TREES AND A POLE. UPON IMPACT, AIR BAGS DID NOT DEPLOY. *AK NHTSA ID Number:

13 33. On March 11, 2004, Old GM became aware of a complaint to NHTSA regarding a 2003 Oldsmobile Alero incident that occurred on July 26, 2003, stating: THE VEHICLE DIES. WHILE CRUISING AT ANY SPEED, THE HYDRAULIC BRAKES & STEERING FAILED DUE TO THE ENGINE DYING. THERE IS NO SET PATTERN, IT MIGHT STALL 6 TIMES IN ONE DAY, THEN TWICE THE NEXT DAY. THEN GO 4 DAYS WITH NO OCURRENCE, THEN IT WILL STALL ONCE A DAY FOR 3 DAYS. THEN GO A WEEK WITH NO OCURRENCE, THEN STALL 4 TIMES A DAY FOR 5 DAYS, ETC., ETC. IN EVERY OCURRENCE, IT TAKES APPROXIMATELY 10 MINUTES BEFORE IT WILL START BACK UP. AT HIGH SPEEDS, IT IS EXTREMELY TOO DANGEROUS TO DRIVE. WE VE TAKEN IT TO THE DEALER, UNDER EXTENDED WARRANTY, THE REQUIRED 4 TIMES UNDER THE LEMON LAW PROCESS. THE DEALER CANNOT ASCERTAIN, NOR FIX THE PROBLEM. IT HAPPENED TO THE DEALER AT LEAST ONCE WHEN WE TOOK IT IN. I DOUBT THEY WILL ADMIT IT, HOWEVER, MY WIFE WAS WITNESS. THE CAR IS A EVEN THOUGH I BOUGHT IT IN JULY 2003, IT WAS CONSIDERED A USED CAR. GM HAS DENIED OUR CLAIM SINCE THE LEMON LAW DOES NOT APPLY TO USED CARS. THE CAR HAS BEEN PERMANENTLY PARKED SINCE NOVEMBER WE WERE FORCED TO BUY ANOTHER CAR. THE DEALER WOULD NOT TRADE. THIS HAS RESULTED IN A BADLUCK SITUATION FOR US. WE CANNOT AFFORD 2 CAR PAYMENTS / 2 INSURANCE PREMIUMS, NOR CAN WE AFFORD $ PER HOUR TO SUE GM. I STOPPED MAKING PAYMENTS IN DECEMBER I HAVE KEPT THE FINANCE COMPANY ABREAST OF THE SITUATION. THEY HAVE NOT REPOSSESSED AS OF YET. THEY WANT ME TO TRY TO SELL IT. CAN YOU HELP?*AK NHTSA ID Number: In August 2004, Old GM became aware of a complaint filed with NHTSA regarding a 2004 Chevrolet Malibu incident that occurred on June 30, 2004, reporting: WHILE TRAVELING AT ANY SPEED VEHICLE STALLED. WITHOUT CONSUMER HAD SEVERAL CLOSE CALLS OF BEING REAR ENDED. VEHICLE WAS SERVICED SEVERAL

14 TIMES, BUT PROBLEM RECURRED. *AK. NHTSA ID Number: Another report Old GM became aware of in August 2004 involved a 2004 Chevrolet Malibu incident that occurred on August 3, 2004, stating: WHEN DRIVING, THE VEHICLE CUT OFF. THE DEALER COULD NOT FIND ANY DEFECTS. *JB. NHTSA ID Number: On October 23, 2004, Old GM became aware of a complaint to NHTSA regarding a 2003 Chevrolet Monte Carlo, reporting: VEHICLE CONTINUOUSLY EXPERIENCED AN ELECTRICAL SYSTEM FAILURE. AS A RESULT, THERE WAS AN ELECTRICAL SHUT DOWN WHICH RESULTED IN THE ENGINE DYING/ STEERING WHEEL LOCKING UP, AND LOSS OF BRAKE POWER.*AK NHTSA ID Number: On April 26, 2005, Old GM became aware of a complaint filed with NHTSA involving a 2005 Pontiac Grand Prix and pertaining to an incident on December 29, 2004, reporting: 2005 PONTIAC GRAND PRIX GT SEDAN VIN #[XXX] PURCHASED 12/16/2004. INTERMITTENTLY VEHICLE STALLS/ LOSS OF POWER IN THE ENGINE. WHILE DRIVING THE VEHICLE IT WILL SUDDENLY JUST LOSES POWER. YOU CONTINUE TO PRESS THE ACCELERATOR PEDAL AND THEN THE ENGINE WILL SUDDENLY TAKE BACK OFF AT A GREAT SPEED. THIS HAS HAPPENED WHILE DRIVING NORMALLY WITHOUT TRYING TO ACCELERATE AND ALSO WHILE TRYING TO ACCELERATE. THE CAR HAS LOST POWER WHILE TRYING TO MERGE IN TRAFFIC. THE CAR HAS LOST POWER WHILE TRYING TO CROSS HIGHWAYS. THE CAR HAS LOST POWER WHILE JUST DRIVING DOWN THE ROAD. GMC HAS PERFORMED THE FOLLOWING REPAIRS WITHOUT FIXING THE PROBLEM. 12/30/2004 [XXX]- MODULE, POWERTRAIN CONTROL-ENGINE REPROGRAMMING. 01/24/2005 [XXX]-SOLENOID,

15 PRESSURE CONTROL-REPLACED. 02/04/2005 [XXX]- MODULE, PCM/VCM-REPLACED. 02/14/2005 [XXX]-PEDAL, ACCELERATOR-REPLACED. DEALERSHIP PURCHASED FROM CAPITAL BUICK-PONTIAC-GMC DEALERSHIP HAS ADVISED THAT THEY DO NOT KNOW WHAT IS WRONG WITH THE CAR. WE HAVE BEEN TOLD THAT WE HAVE TO GO DIRECT TO PONTIAC WITH THE PROBLEM. HAVE BEEN IN CONTACT WITH PONTIAC SINCE 02/15/05. PONTIAC ADVISED THAT THEY WERE GOING TO RESEARCH THE PROBLEM AND SEE IF ANY OTHER GRAND PRI WAS REPORTING LIKE PROBLEMS. SO FAR THE ONLY ADVICE FROM PONTIAC IS THEY WANT US TO COME IN AND TAKE ANOTHER GRAND PRIX OFF THE LOT AND SEE IF WE CAN GET THIS CAR TO DUPLICATE THE SAME PROBLEM. THIS DID NOT IMPRESS ME AT ALL. SO AFTER WAITING FOR 2-1/2 MONTHS FOR PONTIAC TO DO SOMETHING TO FIX THE PROBLEM, I HAVE DECIDED TO REPORT THIS TO NHTSA. *AK *JS INFORMATION REDACTED PURSUANT TO THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. 552(B)(6) NHTSA ID Number: In May 2005, Old GM became aware of a complaint filed with NHTSA regarding a 2004 Chevrolet Malibu incident that occurred on July 18, 2004, stating: THE CAR CUT OFF WHILE I WAS DRIVING AND IN HEAVY TRAFFIC MORE THAN ONCE. THERE WAS NO WARNING THAT THIS WOULD HAPPEN. THE CAR WAS SERVICED BEFORE FOR THIS PROBLEM BUT IT CONTINUED TO HAPPEN. I HAVE HAD 3 RECALLS, THE HORN FUSE HAS BEEN REPLACED TWICE, AND THE BLINKER IS CURRENTLY OUT. THE STEERING COLLAR HAS ALSO BEEN REPLACED. THIS CAR WAS SUPPOSED TO BE A NEW CAR. NHTSA ID Number: On June 2, 2005, Old GM became aware of a complaint to NHTSA regarding a 2004 Pontiac Grand Prix incident that occurred on February 18, 2005, reporting: 2004 PONTIAC GRAND PRIX SHUTS DOWN WHILE DRIVING AND THE POWER STEERING AND BRAKING ABILITY ARE LOST.*MR *NM. NHTSA ID Number:

16 40. On August 26, 2005, Old GM became aware of a complaint to NHTSA regarding a 2004 Pontiac Grand Am incident on August 26, 2005, stating: WHILE DRIVING MY 2004 PONTIAC GRAND AM THE CAR FAILED AT 30 MPH. IT COMPLETELY SHUT OFF LEAVING ME WITH NO POWER STEERING AND NO WAY TO REGAIN CONTROL OF THE CAR UNTIL COMING TO A COMPLETE STOP TO RESTART IT. ONCE I HAD STOPPED IT DID RESTART WITHOUT INCIDENT. ONE WEEK LATER THE CAR FAILED TO START AT ALL NOT EVEN TURNING OVER. WHEN THE PROBLEM WAS DIAGNOSED AT THE GARAGE IT WAS FOUND TO BE A FAULTY IGNITION CONTROL MODULE IN THE CAR. AT THIS TIME THE PART WAS REPLACED ONLY TO FAIL AGAIN WITHIN 2 MONTHS TIME AGAIN WHILE I WAS DRIVING THIS TIME IN A MUCH MORE HAZARDOUS CONDITION BEING THAT I WAS ON THE HIGHWAY AND WAS TRAVELING AT 50 MPH AND HAD TO TRAVEL ACROSS TWO LANES OF TRAFFIC TO EVEN PULL OVER TO TRY TO RESTART IT. THE CAR CONTINUED TO START AND SHUT OFF ALL THE WAY TO THE SERVICE GARAGE WHERE IT WAS AGAIN FOUND TO BE A FAULTY IGNITION CONTROL MODULE. IN ANOTHER TWO WEEKS TIME THE CAR FAILED TO START AND WHEN DIAGNOSED THIS TIME IT WAS SAID TO HAVE ELECTRICAL PROBLEMS POSSIBLE THE POWER CONTROL MODULE. AT THIS TIME THE CAR IS STILL UNDRIVEABLE AND UNSAFE FOR TRAVEL. *JB NHTSA ID Number: On November 13, 2008, Old GM became aware of a complaint to NHTSA regarding a 2001 Oldsmobile Intrigue, reporting: L*THE CONTACT OWNS A 2001 OLDSMOBILE INTRIGUE. WHILE DRIVING 35 MPH, THE VEHICLE CONTINUOUSLY STALLS AND HESITATES. IN ADDITION, THE INSTRUMENT PANEL INDICATORS WOULD ILLUMINATE AT RANDOM. THE VEHICLE FAILED INSPECTION AND THE CRANKSHAFT SENSOR WAS REPLACED, WHICH HELPED WITH THE STALLING AND HESITATION; HOWEVER, THE CHECK ENGINE INDICATOR WAS STILL ILLUMINATED. DAYS AFTER THE CRANKSHAFT SENSOR WAS REPLACED, THE VEHICLE FAILED TO START. HOWEVER, ALL OF THE INSTRUMENT PANEL

17 INDICATORS FLASHED ON AND OFF. AFTER NUMEROUS ATTEMPTS TO START THE VEHICLE, HE HAD IT JUMPSTARTED. THE VEHICLE WAS THEN ABLE TO START. WHILE DRIVING HOME, ALL OF THE LIGHTING FLASHED AND THE VEHICLE SUDDENLY SHUT OFF. THE VEHICLE LOST ALL ELECTRICAL POWER AND POWER STEERING ABILITY. THE CONTACT MANAGED TO PARK THE VEHICLE IN A PARKING LOT AND HAD IT TOWED THE FOLLOWING DAY TO A REPAIR SHOP. THE VEHICLE IS CURRENTLY STILL IN THE SHOP. THE VEHICLE HAS BEEN RECALLED IN CANADA AND HE BELIEVES THAT IT SHOULD ALSO BE RECALLED IN THE UNITED STATES. THE FAILURE MILEAGE WAS UNKNOWN AND THE CURRENT MILEAGE WAS 106,000. NHTSA ID Number: On December 10, 2008, Old GM became aware of a complaint filed with NHTSA involving a 2004 Oldsmobile Alero incident on December 10, 2008, stating: I WAS DRIVING DOWN THE ROAD IN RUSH HOUR GOING APPROX. 55 MPH AND MY CAR COMPLETELY SHUT OFF, THE GAUGES SHUT DOWN, LOST POWER STEERING. HAD TO PULL OFF THE ROAD AS SAFELY AS POSSIBLE, PLACE VEHICLE IN PARK AND RESTART CAR. MY CAR HAS SHUT DOWN PREVIOUSLY TO THIS INCIDENT AND FEEL AS THOUGH IT NEEDS SERIOUS INVESTIGATION. I COULD HAVE BEEN ON THE HIGHWAY AND BEEN KILLED. THIS ALSO HAS HAPPENED WHEN IN A SPIN OUT AS WELL THOUGH THIS PARTICULAR INCIDENT WAS RANDOM. *TR NHTSA ID Number: On March 31, 2009, Old GM became aware of a complaint filed with NHTSA regarding a 2005 Chevrolet Malibu incident on May 30, 2008, reporting: TL*THE CONTACT OWNS A 2005 CHEVROLET MALIBU. THE CONTACT STATED THAT THE POWER WINDOWS, LOCKS, LINKAGES, AND IGNITION SWITCH SPORADICALLY BECOME INOPERATIVE. SHE TOOK THE VEHICLE TO THE DEALER AND THEY REPLACED THE IGNITION SWITCH AT THE COST OF $495. THE MANUFACTURER STATED THAT THEY WOULD NOT ASSUME RESPONSIBILITY FOR ANY REPAIRS BECAUSE THE VEHICLE EXCEEDED ITS MILEAGE. ALL REMEDIES

18 AS OF MARCH 31, 2009 HAVE BEEN INSUFFICIENT IN CORRECTING THE FAILURES. THE FAILURE MILEAGE WAS 45,000 AND CURRENT MILEAGE WAS 51,000. NHTSA ID Number: The defects did not get any safer and the reports did not stop when Old GM ceased to exist. To the contrary, New GM continued receiving the same reports involving the same defects. For example, on March 20, 2013, New GM became aware of a complaint filed with NHTSA regarding a 2003 Chevrolet Impala incident on March 1, 2013, stating: CAR WILL SHUT DOWN WHILE DRIVING AND SECURITY LIGHT WILL FLASH. HAS DONE IT NUMEROUS TIMES, WORRIED IT WILL CAUSE AN ACCIDENT. THERE ARE MULTIPLE CASES OF THIS PROBLEM ON INTERNET. *TR NHTSA ID Number: On May 12, 2013, New GM became aware of a complaint filed with NHTSA regarding a 2005 Chevrolet Malibu incident on May 11, 2012, stating: I WAS AT A STOP SIGN WENT TO PRESS GAS PEDAL TO TURN ONTO ROAD AND THE CAR JUST SHUT OFF NO WARNING LIGHTS CAME ON NOR DID IT SHOW ANY CODES. GOT OUT OF CAR POPPED TRUNK PULLED RELAY FUSE OUT PUT IT BACK IN AND IT CRANKED UP,THEN ON MY WAY HOME FROM WORK,GOING ABOUT 25 MPH AND IT JUST SHUT DOWN AGAIN,I REPEATED PULLING OUT RELAY FUSE AND PUT IT BACK IN THEN WAITED A MINUTE THEN IT CRANKED AND I DROVE STRAIGHT HOME. *TR NHTSA ID Number: On February 26, 2014, New GM became aware of a complaint filed with NHTSA involving a 2004 Pontiac Grand Prix incident on May 10, 2005, reporting: TL THE CONTACT OWNS A 2004 PONTIAC GRAND PRIX. THE CONTACT STATED THAT WHILE DRIVING AT VARIOUS SPEEDS AND GOING OVER A BUMP, THE VEHICLE WOULD STALL WITHOUT WARNING. THE VEHICLE WAS TAKEN TO THE DEALER. THE TECHNICIAN WAS UNABLE TO DIAGNOSE THE FAILURE

19 THE MANUFACTURER WAS MADE AWARE OF THE FAILURE. THE VEHICLE WAS NOT REPAIRED. THE VIN WAS NOT AVAILABLE. THE FAILURE MILEAGE WAS 12,000 AND THE CURRENT MILEAGE WAS 82,000. KMJ NHTSA ID Number: On March 13, 2014, New GM became aware of a complaint filed with NHTSA involving a 2006 Pontiac Grand Prix incident on February 27, 2014, stating: I WAS DRIVING HOME FROM WORK AND WHEN I TURNED A CORNER, THE ENGINE CUT OUT. I BELIEVE IT WAS FROM THE KEY FLIPPING TO ACCESSORY. I VE HEARD THAT THIS HAS CAUSED CRASHES THAT HAVE KILLED PEOPLE AND WOULD LIKE THIS FIXED. THIS IS THE FIRST TIME IT HAPPENED, BUT NOW I M WORRIED EVERY TIME I DRIVE IT THAT THIS IS GOING TO HAPPEN AND I DON T FEEL SAFE LETTING MY WIFE DRIVE THE CAR NOW. WHY ARE THE 2006 PONTIAC GRAND PRIX VEHICLES NOT PART OF THE RECALL FROM GM? *TR NHTSA ID Number: On April 1, 2014, New GM became aware of a complaint to NHTSA regarding a 2003 Chevrolet Monte Carlo incident on September 16, 2013, reporting: WHILE DRIVING AT ANY SPEED THE IGNITION SYSTEM WOULD RESET LIGHTING UP THE DISPLAY CLUSTER JUST AS IF THE KEY WAS TURNED OFF AND BACK ON. THIS WOULD CAUSE A MOMENTARY SHUTDOWN OF THE ENGINE. THE PROBLEM SEEMED TO BE MORE PREVAILANT WHILE TURNING THE WHEEL FOR A CURVE OR TURN OFF THE ROAD. THE TURN SIGNAL UNIT WAS FIRST SUSPECT SINCE IT SEEMED TO CORRELATE WITH APPLYING THE TURN SIGNAL AND TURNING THE WHEEL. THE CONDITION WORSENED TO THE IGNITION SHUTDOWN FOR LONGER PERIODS SHUTTING DOWN THE ENGINE CAUSING STEERING AND BRAKING TO BE SHUT DOWN AND FINALLY DIFFICULTY STARTING THE CAR. AFTER 2 VISITS TO A GM SERVICE CENTER THE PROBLEM WAS FOUND TO BE A FAULTY IGNITION THAT WAS REPLACED AND THE PROBLEM HAS NOT RECURRED. NHTSA ID Number:

20 49. On April 8, 2014, New GM became aware of a complaint to NHTSA regarding a 2003 Chevrolet Impala incident on August 14, 2011, stating: I HAVE HAD INCIDENTS SEVERAL TIMES OVER THE YEARS WHERE I WOULD HIT A BUMP IN THE ROAD AND MY CAR WOULD COMPLETLY SHUT OFF. I HAVE ALSO HAD SEVERAL INCIDENTS WHERE I WAS TRAVELING DOWN THE EXPRESSWAY AND MY CAR TURNED OFF ON ME. I HAD TO SHIFT MY CAR INTO NEUTRAL AND RESTART IT TO CONTINUE GOING. I WAS FORTUNATE NOT TO HAVE AN ACCIDENT. NHTSA ID Number: On May 14, 2014, New GM became aware of a complaint filed with NHTSA regarding a 2004 Chevrolet Impala incident on April 5, 2013, reporting: CHEVY IMPALA 2004 LS- THE VEHICLE IS STOPPING COMPLETELY WHILE DRIVING OR SITTING AT INTERSECTION. THERE IS NO WARNING, NO MESSAGE, IT JUST DIES. THE STEERING GOES WHEN THIS HAPPENS SO I CANNOT EVEN GET OFF THE ROAD. THEN THERE ARE TIMES THAT THE CAR WILL NOT START AT ALL AND I HAVE BEEN STRANDED. EVENTUALLY AFTER ABOUT 20 MINUTES THE CAR WILL START- I HAVE ALREADY REPLACED THE STARTER BUT THE PROBLEM STILL EXISTS. I HAVE HAD THE CAR CHECKED OUT AT 2 DIFFERENT SHOPS (FIRESTONE) AND THEY CANNOT FIND THE PROBLEM. THERE ARE NO CODES COMING UP. THEY ARE COMPLETELY PERPLEXED. CHEVY STATES THEIR MECHANICS ARE BETTER. ALSO THE CLUSTER PANEL IS GONE AND CHEVY IS AWARE OF THE PROBLEM BUT THEY ONLY RECALLED CERTAIN MODELS AND DID NOT INCLUDE THE IMPALAS. I HAVE 2 ESTIMATES REGARDING FIXING THIS PROBLEM BUT THE QUOTES ARE $ I DO NOT FEEL THAT I SHOULD HAVE TO PAY FOR THIS WHEN CHEVY KNEW THEY HAD THIS PROBLEM WITH CLUSTER PANELS AND OMITTED THE IMPALAS IN THEIR RECALL. SO, TO RECAP: THE CAR DIES IN TRAFFIC (ALMOST HIT TWICE), I DO NOT KNOW HOW MUCH GAS I HAVE, HOW FAST I AM GOING, OR IF THE CAR IS OVERHEATING. IN DEALING WITH CHEVY I WAS TOLD TO TAKE THE CAR TO A CHEVY DEALERSHIP. THEY GAVE ME A PLACE

21 THAT IS 2 1/2 HOURS HOUSE AWAY FROM MY HOME. I WAS ALSO TOLD THAT I WOULD HAVE THE HONOR OF PAYING FOR THE DIAGNOSTICS. IN RESEARCHING THIS PROBLEM, I HAVE PULLED UP SEVERAL COMPLAINTS FROM OTHER CHEVY IMPALA 2004 OWNERS THAT ARE EXPERIENCING THE SAME MULTIPLE PROBLEMS. I ALSO NOTICED THAT MOST OF THE COMPLAINTS ARE STATING THAT THE SAME ISSUES OCCURRED AT APPROX. THE SAME MILEAGE AS MINE. I HAVE DISCUSSED THIS WITH CHEVY CUSTOMER SERVICE AND BASICALLY THAT WAS IGNORED. THIS CAR IS HAZARDOUS TO DRIVE AND POTENTIALLY WILL CAUSE BODILY HARM. DEALING WITH CHEVY IS POINTLESS. ALL THEY CAN THINK OF IS HOW MUCH MONEY THEIR DEFECTS WILL BRING IN. *TR NHTSA ID Number: New GM has publicly admitted that it knew of at least seven (7) crashes, eight (8) injuries, and three (3) deaths linked to this serious safety defect before deciding to finally implement a recall in July But New GM was not aware of Tanner s accident in August 2010, so the number of fatalities and injuries is surely much higher than reported. 52. Notwithstanding years of notice and knowledge of the defect, on top of numerous complaints and reports from consumers, including reports of crashes, injuries, and deaths, New GM delayed and implemented no recall involving this defect until July C. The Tucker Vehicle Is Finally Recalled For The Ignition Switch Defect On July 3, 2014, More Than 10 Years After Old GM Learned Of This Defect, And More Than Five Years After New GM Learned Of It 53. On July 2, 2014, and July 3, 2014, New GM recalled 554,328 vehicles and 6,729,742 5 vehicles, respectively, in the United States for unintended ignition key rotation. (NHTSA Recall Nos. 14V-394 and 14V-400). 5 This number was later reduced to 5,877,

22 54. The affected vehicles recalled on July 3, 2014, including the Tanner s 2002 Pontiac Grand Am, were the Chevrolet Impala, Chevrolet Malibu, Chevrolet Monte Carlo, Pontiac Grand Am, Pontiac Grand Prix, Oldsmobile Alero, Oldsmobile Intrigue. The affected vehicles recalled on July 2, 2014, were the Cadillac CTS and Cadillac SRX. 55. The recall notice states that the weight on the key and/or road conditions or some other jarring event may cause the ignition switch to move out of the run position, turning off the engine. If the key is not in the run position, the airbags may not deploy if the vehicle is involved in a collision, increasing the risk of injury. 56. In both recalls, New GM notified NHTSA and the public that the recall addressed a defect involving unintended or inadvertent key rotation within the ignition switch of the vehicles. D. The July 2 And July 3 Recalls Are Likely Related To New GM s Litany Of Other Defective Ignition Switch-Related Recalls In Before issuing the July 2 and July 3, 2014 recalls affecting Tanner s vehicle, New GM issued several similar ignition switch recalls for approximately eight million other vehicles. The July recalls directly relate to the ignition switch defect in these other recalls and involve the same safety risks and dangers. 58. On February 7, 2014, New GM informed NHTSA it was recalling certain Chevrolet Cobalts and 2007 Pontiac G5s for a defect in the vehicles ignition switch torque performance (NHTSA Recall No. 14V-047)

23 59. On February 24, 2014, New GM expanded the recall to include these vehicles: Chevrolet HHR, Pontiac Solstice, Saturn Ion, and 2007 Saturn Sky. 60. On March 28, 2014, New GM again expanded the first ignition switch recall to cover all model years of the Chevrolet Cobalt and HHR, the Pontiac G5 and Solstice, and the Saturn Ion and Sky in the United States. According to reports, this second expansion of the ignition switch recall covers an additional 823,788 vehicles in the U.S., bringing the total number of recalled vehicles to 2,190, New GM described the defect affecting this group of recalled cars as faulty ignition switches can cause key to switch from run position to off position, resulting in loss of electrical power and preventing air bags from deploying if a crash occurs. 62. On April 9, 2014, New GM issued a new recall of all the vehicles in the February/March ignition switch recall, which covered the Chevrolet Cobalt, Chevrolet HHR, Pontiac G5, Pontiac Solstice, Saturn Ion, and Saturn Sky vehicles (NHTSA Recall No. 14V-171). 63. New GM s stated purpose for the new recall was to replace the lock cylinder into which the key is inserted, because the current lock cylinders allow the key to be pulled out while the car is still running. According to New GM, the defective lock cylinder could lead to a possible roll-away, crash and occupant or pedestrian injuries. 64. On June 20, 2014, New GM announced it was recalling 3,141,731 vehicles in the United States for ignition switch, or so-called ignition key slot defects (NHTSA Recall No. 14V-355). These vehicles were included in the recall: Buick Lacrosse,

24 Buick Lucerne, Cadillac Deville, Cadillac DTS, Chevrolet Impala, and Chevrolet Monte Carlo. 65. The recall notice states, [i]n the affected vehicles, the weight on the key ring and/or road conditions or some other jarring event may cause the ignition switch to move out of the run position, turning off the engine. Further, [i]f the key is not in the run position, the air bags may not deploy if the vehicle is involved in a crash, increasing the risk of injury. Additionally, a key knocked out of the run position could cause loss of engine power, power steering, and power braking, increasing the risk of a vehicle crash. 66. The vehicles in this recall were built on the same platform and their defective ignition switches are likely due to weak detent plungers, just like the other defective vehicles recalled in February/March The unintended ignition key rotation defect in the July recalls and affecting the Tucker vehicle is substantially similar to and relates directly to the other ignition switch defects, including the defects that gave rise to the initial recall of 2.1 million vehicles in February/March Like the other ignition switch defects, the unintended ignition key rotation defect poses a serious and dangerous safety risk because it can cause a vehicle to stall while in motion by causing the key in the ignition to inadvertently move from the on or run position to off or accessory position. Like the other ignition switch defects, the unintended ignition key rotation defect can cause a loss of power steering, power braking, and increase the risk of a crash. And as with the other ignition switch defects, if a crash occurs, the airbags will not deploy because of the unintended ignition key rotation defect. 68. The unintended ignition key rotation defect involves several problems, and they are identical to the problems in the other defective vehicles: a weak detent plunger, the

25 placement of the ignition switch, and the algorithm that renders the airbags inoperable when the vehicle leaves the run position. 69. GM has tried to characterize the July recall of these 6.4 million vehicles as differing from the other ignition switch defects, even though these recalls are aimed at addressing the same defects and safety risks as those that gave rise to the other ignition switch defect recalls. New GM has attempted to portray the unintended ignition key rotation defect as differing from the others to deflect attention from the severity and pervasiveness of the ignition switch defect, to provide a plausible explanation for why it did not recall these 6.4 million vehicles earlier, and to avoid providing new, stronger ignition switches as a remedy. E. The Tucker Family, Their Defective Grand Am, And Tanner s Fatal Crash 70. Plaintiffs Tracy and Denise Tucker purchased a 2002 Pontiac Grand Am in February The car was for the primary use of their seventeen-year-old son, Tanner. 71. In August 2010, Tanner was just days from starting his senior year at South Ripley High School, where he would have served as class president for the fifth consecutive year. Intelligent and popular with his classmates, Tanner was a varsity basketball and baseball player, and an honors student. He was active in his community and local church, and spent time tutoring, coaching, and volunteering with the Special Olympics. Tanner planned to enroll in the engineering program at Purdue the next fall

26 Tanner Tucker in Source: The Tucker Family. 72. On Saturday, August 7, 2010, shortly before midnight on a clear, dry evening, Tanner was driving home after attending his girlfriend s family reunion. Tanner was traveling south in his 2002 Pontiac Grand Am on State Route 101 at approximately 55 miles per hour, when he evidently lost control of the vehicle, careening off the roadway to the right and colliding with a large oak tree on the driver s side. Tanner was killed by the impact, suffering severe head injury and cardiopulmonary arrest. 73. A blood test confirmed no presence of alcohol or drugs in Tanner s system, and his phone was in his pocket during the accident, indicating phone distraction was not a factor

27 74. Photos of the vehicle at the scene show the ignition switch in the accessory or off position: Source: Ripley County Sheriff s Department; 8/7/

28 75. They also confirm the key ring held multiple keys and a lanyard. Source: Ripley County Sheriff s Department; 8/7/ Despite the force of the impact, and consistent with the keys being in the accessory or off position, the Grand Am s airbags never deployed. 77. Investigating officers with the Ripley County Sheriff s Department could not pinpoint the cause of Tanner s accident. Devastated by losing their son, Plaintiffs hired a private investigator to look further into the accident, hoping it could provide the answers they sought. 78. The private investigator was unsuccessful in his attempts to retrieve the Grand Am s sensing diagnostic module from the salvage yard. He also conducted recall research to

29 determine whether a manufacturing defect could have caused the accident. But because New GM was still concealing the ignition switch defect from the public, including Plaintiffs and their investigator, the search uncovered nothing of use. 79. Plaintiffs abandoned their private investigation in November 2010, no closer to the answers they sought over the untimely death of their teenage son. 80. Four years and two months after Tanner s death, in October 2014, Plaintiffs received a recall notice from New GM alerting them to the ignition switch defect in Tanner s 2002 Grand Am. It was the first time Plaintiffs heard of this defect or that it plagued the car in which their son had tragically died. 81. The Tucker family has suffered immensely in the aftermath of Tanner s death. The Tuckers are a close and loving family, and Tanner was a beloved member known for his kind and selfless disposition. Tanner was especially close with his older brother, Trent, with whom he shared the same birth date. Trent lost not only his brother, but his best friend, the day Tanner died. Tanner s younger siblings, Ty and Toria, are now in high school but were only twelve and ten at the time of Tanner s death. Both struggle with navigating the emotions that come with their grief and its collective effects on the family. For Plaintiffs Tracy and Denise, the grief of losing a child, especially one on the cusp of his adult life, is never-ending and permeates their everyday life in innumerable ways. V. TOLLING UNDER IND. CODE ANN Plaintiffs incorporate by reference all allegations in the foregoing paragraphs. 83. Under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement wherein New GM acquired certain Old GM assets, New GM expressly assumed liability for post-sale accidents involving Old GM vehicles causing personal injury, loss of life,

30 or property damages. New GM also acquired knowledge of Old GM s activities and the defective ignition switch via the mind of the employees, officers, managers, books, and records obtained and/or acquired as a result of the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement and subsequent Sale Order. Thus, the duties of Old GM are part of the foundation for the liability assumed by New GM. Plaintiffs claims arise from Tanner s post-sale accident in an Old GM vehicle resulting in his death. New GM is therefore expressly liable to Plaintiffs. 84. As described herein, Old GM and New GM concealed the ignition switch defect from Plaintiffs, other consumers, and the public. 85. Plaintiffs claims are tolled because they did not discover the ignition switch defect until October 2014 when New GM mailed them a recall notice, or, at the very earliest, until July 2014 when New GM issued the recall on Plaintiffs vehicle. Therefore, Plaintiffs claims, as alleged below, are timely. VI. CAUSES OF ACTION FIRST CAUSE OF ACTION (Wrongful Death of Child Ind. Code Ann ) 86. Plaintiffs incorporate by reference all allegations in the foregoing paragraphs. 87. Decedent Tanner L. Tucker was 17 years old, unmarried, and without dependents at his death on August 7, New GM s conduct, as described herein, constitutes wrongful acts and omissions: A. Strict Liability (IND. CODE ANN , et seq.) 89. Old GM and New GM, at all times relevant to this action, were engaged in the design, testing, manufacture, distribution, and sale of automobiles, including the Tucker vehicle

31 90. As owners and drivers of the 2002 Pontiac Grand Am, the Tuckers, and particularly Tanner, were in the class of persons that Old GM and New GM would reasonably foresee as being subject to the harm caused by the Tucker vehicle s defective condition. 91. The ignition switch in the Tucker vehicle was defective, as described herein, because its condition was not contemplated by reasonable persons among those considered expected users or consumers of the product, including Tanner, and was unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways. The ignition switch defect in the Tucker vehicle rendered it unreasonably dangerous because use of the vehicle exposed the Tuckers, and particularly its primary driver, Tanner, to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases the product with the ordinary knowledge about the product s characteristics common to the community of consumers. 92. The Tucker vehicle contained the defective ignition switch at the time it left Old GM s control, and as expected by Old GM, reached the Tucker family without substantial alteration to the condition in which it was sold by Old GM. 93. The defective ignition switch in the Tucker vehicle was the direct and proximate cause of Tanner s death. 94. Under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement wherein New GM acquired certain Old GM assets, New GM expressly assumed liability for post-sale accidents involving Old GM vehicles causing personal injury, loss of life, or property damage. Tanner was killed in a post-sale accident in an Old GM vehicle, and New GM is therefore expressly and strictly liable for his death

32 B. Failure to Warn (IND. CODE ANN , et seq.) 95. Old GM and New GM, at all times relevant to this action, were engaged in the design, testing, manufacture, distribution, and sale of automobiles, including the Tucker vehicle. 96. As owners and drivers of the 2002 Pontiac Grand Am, the Tuckers, and particularly Tanner, were in the class of persons that Old GM and New GM would reasonably foresee as being subject to the harm caused by the Tucker vehicle s defective condition. 97. The Tucker vehicle was expected to, and did, reach the Tucker family without substantial alteration to the condition in which it was sold by Old GM. 98. Old GM and New GM had a duty to provide reasonable notice and warnings of dangers related to its vehicles, including the Tucker vehicle. 99. Old GM and New GM negligently failed to exercise reasonable care under the circumstances in warning the Tuckers, and particularly its primary driver, Tanner, about the defective ignition switch in their vehicle, and the dangers posed thereby, as described herein. Old GM and New GM s failure to warn of the defective ignition switch rendered the Tucker vehicle unreasonably dangerous because use of the vehicle exposed the Tuckers, and particularly its primary driver, Tanner, to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases the product with the ordinary knowledge about the product s characteristics common to the community of consumers. If a warning were provided, it would have prevented the senseless death of Tanner Tucker Old GM and New GM s failure to provide reasonable notice and warning of the defective ignition switch in the Tucker vehicle, as described herein, was the direct and proximate cause of Tanner s death

33 101. Under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement wherein New GM acquired certain Old GM assets, New GM expressly assumed liability for post-sale accidents involving Old GM vehicles causing personal injury, loss of life, or property damage. Tanner was killed in a post-sale accident in an Old GM vehicle, and New GM is therefore expressly liable for his death Through New GM s assumption of liability under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement for post-sale accidents involving Old GM vehicles causing personal injury, loss of life, or property damage, the failures of Old GM described herein that contributed to or were causally connected to Tanner s death were among the liabilities of Old GM assumed by New GM. Independent of any failures by Old GM as described herein, between July 10, 2009, and the present, New GM breached its duties owed to Tanner, as described herein. C. Defective Design (IND. CODE ANN , et seq.) 103. Old GM and New GM, at all times relevant to this action, were engaged in the design, testing, manufacture, distribution, and sale of automobiles, including the Tucker vehicle As owners and drivers of the 2002 Pontiac Grand Am, the Tuckers, and particularly its primary driver, Tanner, were in the class of persons that Old GM and New GM should reasonably foresee as being subject to the harm caused by the Tucker vehicle s defective condition The ignition switch in the Tucker vehicle was defective, as described herein, because its condition was not contemplated by reasonable persons among those considered expected users or consumers of the product, including Tanner, and was unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways. The ignition switch