CHARLES SILVAS and GRACE SILVAS, Plaintiffs, vs. GENERAL MOTORS, LLC, G. RICHARD WAGONER, JR.,...

8/12/2019 CHARLES SILVAS and GRACE SILVAS, Plaintiffs, vs. GENERAL MOTORS, LLC, G. RICHARD WAGONER, JR., FREDERIC

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EXHIBIT

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Case 2:14-cv-00089 Document 7-2 Filed in TXSD on 03/24/14 Page 1 of 22


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Plaintiffs Second Amended Petition

1.

CAUSE NO. 2014CCV-60443-4

CHARLES SILVAS and GRACESILVAS,Plaintiffs,

IN THE COUNTY COURT

vs. AT LAW NO. 4

GENERAL MOTORS, LLC, G.RICHARD WAGONER, JR.,FREDERICK A. HENDERSON,EDWARD WHITACRE, JR., DANAKERSON, AND MARY BARRADefendant. NUECES COUNTY, TEXAS

PLAINTIFFS SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Charles Silvas and Grace Silvas (together, Plaintiffs) before the

Honorable Judge of this Court and file this the second amended petition against General Motors,

LLC, G. Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and

Mary Barra and in support would show the Court as follows:

I.DISCOVERY CONTROL PLAN

1. Pursuant to the provisions of Texas Rule of Civil Procedure 190.3, Plaintiffspropose to conduct discovery according to Discovery Control Plan Level 3.

II.PARTIES

2. Plaintiff Charles Silvas is an individual who resides in Nueces County, Texas.3. Plaintiff Grace Silvas is an individual who resides in Nueces County, Texas.



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4. Defendant General Motors, LLC (hereinafter referred to as GM) is a Delawarelimited liability company with its principal place of business in Michigan. The sole member of

GM is General Motors Holdings, LLC, a Delaware limited liability company with its principal

place of business in Michigan. General Motors Holdings, LLCs sole member is General Motors

Company, a Delaware corporation with its principal place of business in Michigan. General

Motors, LLC may be served with process through its registered agent for service of process in

the State of Texas, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service

Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-4234.

5.

Defendant G. Richard Wagoner, Jr., was the Chief Executive Officer of General

Motors, LLC from June 1, 2009 through March 30, 2009. The court has jurisdiction over

Defendant Wagoner, a nonresident, because Defendant Wagoner purposefully availed himself of

the privileges and benefits of conducting business in Texas by committing the torts detailed

below, which are the subject of this suit, in whole or in part in Texas. Defendant Wagoner may

be served with process at his address, 1155 Quarton, Rd., Birmingham, Michigan 48009.

6. Defendant Richard Frederick A. Henderson was the Chief Executive Officer ofGeneral Motors, LLC from March 30, 2009 through December 1, 2009. The court has

jurisdiction over Defendant Henderson, a nonresident, because Defendant Henderson

purposefully availed himself of the privileges and benefits of conducting business in Texas by

committing the torts detailed below, which are the subject of this suit, in whole or in part in

Texas. Defendant Henderson may be served with process at his address, 646 E. 6th Street,

Hinsdale, Illinois 60521-4713.



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7. Defendant Edward Whitacre, Jr. was the Chief Executive Officer of GeneralMotors, LLC from December 1, 2009 through September 1, 2010. The court has jurisdiction

over Defendant Whitacre, a nonresident, because Defendant Whitacre purposefully availed

himself of the privileges and benefits of conducting business in Texas by committing the torts

detailed below, which are the subject of this suit, in whole or in part in Texas. Defendant

Whitacre may be served with process at his address, 325 Terrell Road, San Antonio, Texas

78209.

8. Defendant Dan Akerson was the Chief Executive Officer of General Motors, LLCfrom September 1, 2010 through January 15, 2014. The court has jurisdiction over Defendant

Akerson, a nonresident, because Defendant Akerson purposefully availed himself of the

privileges and benefits of conducting business in Texas by committing the torts detailed below,

which are the subject of this suit, in whole or in part in Texas. Defendant Akerson may be

served with process at his address, 1326 Ballantrae, Lane, McLean, Virginia 22101.

9. Defendant Mary Barra is the current Chief Executive Officer of General Motors,LLC. The court has jurisdiction over Defendant Barra, a nonresident, because Defendant Barra

purposefully availed herself of the privileges and benefits of conducting business in Texas by

committing the torts detailed below, which are the subject of this suit, in whole or in part in

Texas. Defendant. Barra may be served with process at her address, 18938 Bella Vista, Ct.,

Northville, Michigan, 48168.

III.JURISDICTION AND VENUE



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10. Plaintiffs seek monetary relief under $75,000.00. The Court has jurisdiction overthe lawsuit because the amount in controversy meets the Courts minimum jurisdictional

requirements.

11. The Court has personal jurisdiction over GM given that its contacts with the Stateof Texas are sufficiently continuous and systematic so as to justify the exercise of jurisdiction

over it for all purposes.

12. Venue is proper in Nueces County, Texas, pursuant to Tex. Civ. Prac. & Rem.Code section 15.003, in that Plaintiffs resided in Nueces County at the time the causes of action

accrued.

13. Additionally, venue is proper in Nueces County, Texas, pursuant to Tex. Civ.Prac. & Rem. Code section 15.002(a)(1), in that all or a substantial part of the events giving rise

to Plaintiffs claims occurred in Nueces County.

IV.PRELIMINARY STATEMENT

14. This lawsuit arises out of the warranty and recall obligations of GM, both arisingfrom its predecessor and GM imposed by court order. While extolling the safety and reliability

of its vehicles, GM was concealing a defect that caused its vehicles to have a sudden engine

power loss. Try as it might to conceal this defect, it came to light in a recent recall. As a result,

the value of these vehicles has been significantly diminished. The Plaintiffs seek recovery for

this diminution in value of their GM vehicles.

V.BACKGROUND FACTS

A. Plaintiffs Vehicles



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5.

1. Recall notices raise issues concerning GM vehicles

15. On February 7, 2014, General Motors filed a Defect Notice to recall 2005-2007Model Year Chevrolet Cobalt and 2007 Pontiac G5 vehicles. The Defect Notice stated the

ignition switch torque performance in these vehicles might not meet GMs specifications

resulting in the non-deployment of airbags in crash events. The notice called for the recall of

approximately six hundred thousand vehicles.

16. Seventeen days later, on February 24, 2014, GM issued a notice to the NationalHighway Traffic Safety Administration (NHTSA) which expanded the recall to include 2003-

2007 Saturn Ions, 2006-2007 Chevrolet HHRs, 2006-2007 Pontiac Solstices and 2007 Saturn

Skys, bringing the number of vehicles affected by the recall to 1,367,146. This NHTSA notice

furnished information on hand with GM dating back 10 years, and dealt directly with GMs

recall obligations and product warranties which have been known to GM for many years.

17. The notice dated February 24, 2014 provided a chronology that purportedlydetailed GMs knowledge and actions related to the ignition switch.

2. Remarkably, GM knew of the condition since 2001

18. As early as 2001, during pre-production development of the Ion, GM becameaware of issues relating to ignition switch passlock system. The 2001 report stated the problem

included a low detent plunger force in the ignition switch

19. In 2003, before the launch of the 2005 Cobalt, GM became aware of incidentswherein the vehicle engine would suddenly lose power in the event the key moved out of the

run position when the driver inadvertently contacted the key or steering column. An

investigation was opened and, after consideration of lead-time required and the cost and



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effectiveness of potential solutions, the investigation was closed with no action taken.

20. Notably, the recalls did not provide immediate relief for vehicle owners. Rather,GM disclosed that dangerous defects existed and stated that GM would implement a repair plan,

without specification.

21. Throughout 2005, GM received similar field reports of vehicles losing enginepower when the key moved out of the run position. A proposal was approved to redesign the

key head, but later cancelled. Instead of recalling the vehicles to replace the defective ignition

switches, GM issued a Safety Bulletin (the Bulletin). The Bulletin recognized that there was a

potential for the driver to inadvertently turn off the ignition due to low ignition key cylinder

torque/effort.

22. Although GM developed an insert for the key ring that changed it from a slotdesign to a hole design, to prevent the key from easily jogging the ignition switch out of the run

position, the redesigned ignition switch was not installed in vehicles until the 2007 model year.

23. The defective ignition switch has been linked to numerous crashes and fatalities.24. Given the vast number of instances of sudden engine power loss and non-

deployment of airbags related to the defective ignition switch and GMs knowledge of many or

all of the instances, GM should have aggressively taken remedial measures to address these

defects. GM failed to do so. In fact, this first recall was not implemented until 2014 nearly ten

years after instances of engine power loss.

25. The ignition switch defect in GM vehicles has adversely affected the companysreputation as a manufacturer of safe, reliable vehicles with high resale value, as compared to

vehicles made by its competitors. In the wake of the news reports about this serious problem,



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GM customers and consumers generally are as they should be skeptical about the quality and

safety of GM vehicles. Indeed, it is likely that the entire fleet of GM vehicles has been

stigmatized by this defect, but most specifically the vehicles directly affected by this recall and

certainly no consumer has confidence that after a 10-year fraudulent concealment scheme was

brought to light GM has now told any more than they must. Every GM product is now tainted

by this fraud.

26. GMs intentional and deliberate mishandling of the ignition switch defect,including but not limited to its denial of any problem, even after receiving a substantial number

of reports of sudden engine power loss, including ones that resulted in serious physical injury or

death, and all other allegations set forth herein, has adversely affected the companys reputation

as a manufacturer of safe, reliable vehicles with high resale value, as compared to vehicles made

by its competitors. GM customers and the general public have reason to be skeptical about

whether GM is coming forth with truthful information about the sudden loss of power defect.

Likewise, GM customers and the general public are left to wonder whether safety concerns about

GM vehicles are limited to this particular problem.

27. Moreover, some vehicle owners, including Plaintiffs, have driven their cars lessthan they otherwise would due to fear of being in an accident.

3. G. Richard Wagoner, Jr. and GM

28. Wagoner served as GMs Chief Executive Officer from June 1, 2009 throughMarch 30, 2009, during the critical manufacturing period for many of the recalled vehicles.

29. As the CEO of GM, Wagoner had a duty to protect the public from dangerous anddefective vehicles. In a complete disregard of his duties, Wagoner drove the production of the



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recalled vehicles, ignored the alarming number of vehicles losing power due the faulty ignition

switch, refused to implement a repair to the ignition switch, actively mislead the general public

regarding the safety of the recalled vehicles and refused to recall the subject vehicles.

30. As a proximate result of Wagoners actions and omissions the Plaintiffs havesuffered the damages described herein.

4. Frederick A. Henderson and GM

31. Henderson served as GMs Chief Executive Officer from March 30, 2009,through December 1, 2009.

32.

As the CEO of GM, Henderson had a duty to protect the public from dangerous

and defective vehicles. In a complete disregard of his duties, Henderson ignored the alarming

number of vehicles losing power due the faulty ignition switch, refused to implement a repair to

the ignition switch, actively mislead the general public regarding the safety of the recalled

vehicles and refused to recall the subject vehicles.

33. As a proximate result of Hendersons actions and omissions the Plaintiffs havesuffered the damages described herein.

5. Edward Whitacre, Jr. and GM

34. Whitacre served as GMs Chief Executive Officer from December 1, 2009,through September 1, 2010.

35. As the CEO of GM, Whitacre had a duty to protect the public from dangerous anddefective vehicles. In a complete disregard of his duties, Whitacre ignored the alarming number

of vehicles losing power due the faulty ignition switch, refused to implement a repair to the

ignition switch, actively mislead the general public regarding the safety of the recalled vehicles



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and refused to recall the subject vehicles.

36. As a proximate result of Whiteacres actions and omissions the Plaintiffs havesuffered the damages described herein.

6. Dan Akerson and GM

37. Akerson served as GMs Chief Executive Officer from September 1, 2010,through January 15, 2014.

38. As the CEO of GM, Akerson had a duty to protect the public from dangerous anddefective vehicles. In a complete disregard of his duties, Akerson ignored the alarming number

of vehicles losing power due the faulty ignition switch, refused to implement a repair to the

ignition switch, actively mislead the general public regarding the safety of the recalled vehicles

and refused to recall the subject vehicles.

39. As a proximate result of Akersons actions and omissions the Plaintiffs havesuffered the damages described herein.

7. Mary Barra and GM

40. Mary Barra, as a powerful automotive executive and officer at GM, was in aposition where she could have helped countless GM vehicle owners by initiating a recall of the

subject vehicles. As early as December 2013, Ms. Barra knew that there was an issue being

analyzed. Instead of taking immediate action, she looked past the dangerous and defective

nature of the subject recalled vehicles and used her position of power to continue selling these

vehicles to the public.

41. Mary Barra earned her Master of Business Administration degree from StanfordGraduate School of Business in 1988. She began working for GM at the age of 18 and held a



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variety of engineering and administrative positions. In February 2008 she became Vice

President of Global Manufacturing Engineering. In July 2009 she advanced to the position of

Vice President of Global Human Resources, which she held until February 2011, when she was

named Executive Vice President of Global Product Development. On January 15, 2014 Barra

was named Chief Executive Office or General Motors, LLC.

42. As the CEO of GM, Mary Barra had a duty to protect the public from dangerousand defective vehicles. In a complete disregard of her duties, Barra refused to recall the subject

vehicles, and by doing so endangered the lives of thousands of individuals.

43.

As a proximate result of Barras active participation and leadership in the sale of

the recalled vehicles the Plaintiffs have suffered the damages described herein.

8. The damage done

44. Plaintiffs seek damages suffered by the Plaintiffs as a result of GMs conduct,including but not limited to: (i) loss of use of the vehicles; (ii) reimbursement of out of pocket

costs for, among other things, alternative transportation, prior repairs to address accelerator

problems, floor mats that had to be discarded, etc.; (iii) diminution in resale value of the

vehicles; and (iv) an increased risk of physical harm.

45. Plaintiffs also seeks injunctive relief including: (i) repairs to remove thedangerous condition; (ii) an extension of warranty coverage covering components of the ignition

switch system; and (iii) individual notice to each owner affected by the ignition switch recall

disclosing the dangerous condition.

B. Plaintiffs Experiences

46. Plaintiffs own a 2006 Chevrolet Cobalt, a model that is subject to the ignition



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switch recall.

47. Plaintiffs Silvas experienced incidents of sudden engine power loss beginning in2010. The vehicle was inspected and upon information and belief, the ignition switch was

replaced. Despite the repair, the Plaintiffs continue to experience incidents of sudden engine

power loss.

48. Plaintiffs Silvas chose the 2006 Chevrolet Cobalt over competing brandsvehicles, at least in part, because of GMs reputation for selling cars with higher resale, as

compared to vehicles manufactured by its competitors.

49.

Plaintiffs Silvas have lost trust in the GM and Chevrolet brand names, and the

Cobalt in particular. They are skeptical that their Cobalt will ever be completely safe.

50. Plaintiffs Silvas also believe that the resale value of their Chevrolet Cobalt willdecrease and diminish due to general consumer skepticism about GM and Chevrolet vehicles.

51. Plaintiffs Silvas are concerned for their safety and the safety of others. Theybelieve Defendants actions and omissions have caused economic harm to them, namely damage

to their property and devaluation of their Chevrolet Cobalt.

52. Plaintiffs Silvas resided in Nueces County at the time their breach of warrantycauses of action accrued.

VI.Causes Of Action Against GM

A. Claims Arising Out Of Warranty And Recall Obligations

53. Plaintiffs re-allege all preceding allegations as if fully set forth herein.54. Plaintiffs purchased their vehicle, a 2006 Chevrolet Cobalt, from GM. Plaintiffs

chose the 2006 Chevrolet Cobalt over competing brands vehicles because of GMs reputation



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58. Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre,Jr., Dan Akerson and Mary Barra are liable in their individual capacities and as agents and

employees of General Motors, LLC.

59. In the alternative and without waiving any their claims against the aforementionedDefendants in their individual capacities, Plaintiffs contend that Defendants G. Richard

Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary Barra were

agents of GM. Specifically, GM: (1) intentionally conferred authority on Defendants G. Richard

Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary Barra; (2)

intentionally allowed Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward

Whitacre, Jr., Dan Akerson and Mary Barra to believe that they had authority to act on behalf of

GM; or (3) through lack of due care, allowed Defendants G. Richard Wagoner, Jr., Frederick A.

Henderson, Edward Whitacre, Jr., Dan Akerson and Mary Barra to believe they had authority to

act on behalf of GM. Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward

Whitacre, Jr., Dan Akerson and Mary Barra were acting within the scope of their agency when

they committed the torts listed herein against Plaintiffs.

60. In the alternative and without waiving any their claims against the aforementionedDefendants in their individual capacities, Plaintiffs contend that GM is liable under the theory of

apparent authority. Specifically, GM: (1) affirmatively held Defendants G. Richard Wagoner,

Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary Barra out as having

authority to act on their behalf; (2) knowingly permitted Defendants G. Richard Wagoner, Jr.,

Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary Barra to hold themselves

out as having authority; or (3) acted with such lack of ordinary care as to clothe Defendants G.



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Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary

Barra with the indicia of authority. GMs conduct caused Plaintiffs to reasonably believe that

Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan

Akerson and Mary Barra had the authority to act on GMs behalf, and the Plaintiffs justifiable

relied upon the agents authority.

61. In the alternative and without waiving any their claims against the aforementionedDefendants in their individual capacities, Plaintiffs contend that GM is liable under the theory of

respondeat superior. Specifically, (1) as set forth above, Plaintiffs were injured as a result of

Defendants tort; (2) Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward

Whitacre, Jr., Dan Akerson and Mary Barra were tortfeasors and employees of GM; (3) the torts

were committed while Defendants G. Richard Wagoner, Jr., Frederick A. Henderson, Edward

Whitacre, Jr., Dan Akerson and Mary Barra were acting within the scope of their employment

that is, the acts were: (a) within the employees general authority; (b) in furtherance of GMs

business; and (c) were undertaken for the accomplishment of the object for which Defendants G.

Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary

Barra were hired.

VIII.Damages And Injunctive Relief

62. Plaintiffs seek damages suffered as a result of GMs conduct, including but notlimited to:

(i) loss of use of the vehicles;(ii) reimbursement of out of pocket costs for, among other things, alternative

transportation, prior repairs to defective ignition switches; and



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(iii) diminution in value of their vehicle.63. Plaintiffs also seek injunctive relief, including:(i) repairs to remove the dangerous condition;(ii) an extension of warranty coverage covering components of the ignition system;

and

(iii) individual notice to each owner affected by the dangerous condition, whichincludes instructions to the owner or lessor to park the vehicle and order that GM

pay for a rental car while the necessary repairs are conducted.

IIX.PRE- AND POST-JUDGMENT INTEREST

64. Plaintiffs seek pre- and post-judgment interest as allowed by law.IX.

JURY DEMAND

65. Plaintiffs request a trial by jury for all issues of fact. A jury fee has been paid.XIII.

REQUEST FOR DISCLOSURE

66. Except as modified by Court order, under Texas Rule of Civil Procedure 194,Plaintiffs request that the Defendants disclose within 50 days of service of this request, the

information or material described in Rule 194.2

X.PRAYER

For these reasons, Plaintiffs pray for judgment against Defendants General Motors, LLC,

G. Richard Wagoner, Jr., Frederick A. Henderson, Edward Whitacre, Jr., Dan Akerson and Mary

Barra for the all legal claims asserted herein, that this case proceed to trial before a jury, and that



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Plaintiffs recover a judgment of and from Defendants for damages in such an amount as the

evidence may show and the jury may determine to be proper, together with pre-judgment and

post-judgment interest, court costs, and such other and further relief Plaintiff may show

themselves to be entitled, whether at law or in equity.

Respectfully Submitted,

HILLIARD MUOZ GONZALES LLP

By: _____________________________Robert C. HilliardState Bar No. 09677700

[email protected] Gonzales, Jr.State Bar No. [email protected] D. TobinState Bar No. [email protected] B. MartinezState Bar No. [email protected]. Christopher PinedoState Bar No. [email protected] WilsonState Bar No. [email protected] ReillyState Bar No. [email protected] BalkoState Bar No. [email protected] A. Hunter, Jr.State Bar No. [email protected]

719 S. Shoreline Boulevard,



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Suite 500Corpus Christi, TX 78401Telephone No.: (361) 882-1612Facsimile No.: (361) 882-3015

THOMASJ.HENRYINJURYATTORNEYS

By:s/ Thomas J. HenryThomas J. HenryState Bar No. 09484210Greggory A. TeeterState Bar No. 24033264Travis VenableState Bar No. 24068577

521 Starr St.Corpus Christi, Texas 78401Telephone No.: (361) 985-0600Facsimile No.: (361) 985-0601

ATTORNEYS FOR PLAINTIFFS



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CHARLES SILVAS and GRACE SILVAS, Plaintiffs, vs. GENERAL MOTORS, LLC, G. RICHARD WAGONER, JR.,...

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