GM Class Action Lawsuit Dismissed Over Flex Fuel Vehicles

Sep 05, 2023

Posted in News

February 2, 2023 — A GM class action lawsuit has been dismissed after a Chevy Impala owner claimed his car was damaged by the use of E85 fuel.

Known as flex fuel vehicles, General Motors allegedly didn't warn owners that E85 fuel could not be used all the time in the vehicles.

According to the Illinois GM class action lawsuit:

"The class consists of (a) all persons with Illinois addresses, (b) who purchased a GM Flex Fuel vehicle, new or used, (c) on or after a date 3 years prior to the filing of this action."

In October 2019, plaintiff Michael Fleury bought a used 2016 Chevrolet Impala flex fuel car from a General Motors dealership. The plaintiff says the incentive to purchase the car came from the ability to operate the car using E85 (85% ethanol) fuel in addition to gasoline.

Following an increase in gasoline prices, Fleury "began using E85 regularly" in 2022 because it's cheaper than gasoline and he had used E85 before without any problems. However, the plaintiff says he "consulted the owners manual to see if there were any warnings or prohibitions about his intended use of E85."

The plaintiff had been using E85 on a regular basis when the check engine light and a warning light displayed while he was driving his Impala in temperatures above 0 ºF. The plaintiff says the car "lost power, such that it could not be safely driven on public roads."

A dealership found the car had "low fuel pressure from [the] high pressure fuel pump," and the "high pressure fuel pump need[ed] to be replaced per bulletin 18-NA-072." Technicians allegedly told the plaintiff the problems stemmed from Fleury's use of E85 fuel.

According to the class action lawsuit, the plaintiff was told "that he should have been alternating fillups between E85 and gasoline, and that failing to do so caused the problems" with his Impala.

GM's technical service bulletin 18-NA-072 describes a fuel pump problem attributed to excessive use of E85 fuel, causing an internal plunger in the fuel pump to stick.

According to the March 2020 TSB, "the fuel tank should be filled with gasoline one-third or one-half of the time."

Then on January 9, 2022, Fleury's 2016 Impala "failed the Illinois emissions test." The GM lawsuit alleges Fleury's car "would need a new mass air flow sensor" due to "the ongoing failure of the high pressure fuel pump." The plaintiff claims he had to pay for the diagnosis and repairs of his car.

The GM class action says GM later offered to fix the fuel pump after the plaintiff complained to the Better Business Bureau. But the lawsuit alleges fixing the fuel pump would not allow Fleury to operate his car using only E85 without risking damage.

The plaintiff points to several allegedly "false and misleading" statements in the GM owner's manual, and these statements allegedly encourage the use of E85 to an extent that "causes Flex Fuel vehicles to come to grief."

However, Judge Virginia M. Kendall found the plaintiff failed to identify a false or deceptive statement, and he does not contend that his flex fuel car cannot use E85.

"Stating that Flex Fuel vehicles can run on E85—and even encouraging such use—does not contradict the truth that using E85 exclusively may cause damage. Moreover, Fleury does not allege that he read the owner's manual before buying his 2016 Impala." — Judge Kendall

According to the judge, the only representations Fleury allegedly relied on before purchasing his car were the E85 window sticker and an online advertisement stating that the Impala had "E85 FlexFuel capability." The judge ruled neither of these representations were false or deceptive.

Judge Kendall also found the plaintiff failed to adequately allege the inability of flex fuel cars to use only E85 is a defect.

"Fleury does not point to any statement by GM that Flex Fuel vehicles can run exclusively on E85. Contrary to Fleury's assertion, the fact that exclusive use of E85 can damage Flex Fuel vehicles appears knowable, and the risk of harm, avoidable." — Judge Kendall

The GM class action lawsuit references GM's technical service bulletin, and the judge ruled the TSB "provides a mechanism for authorized dealers to warn Flex Fuel drivers against excessive E85 use—as occurred here when Fleury experienced car trouble."

The judge also ruled the plaintiff failed to sufficiently allege GM violated any Illinois public policy and the plaintiff also failed to allege an immoral, unethical, oppressive, unscrupulous practice or a substantial injury.

According to the GM class action, GM offered to fix the plaintiff's Impala and he could have asked the dealer about running only on E85 fuel. The judge ruled GM's conduct was not "oppressive," and the plaintiff didn't sufficiently allege any deceptive or unfair conduct.

And although the GM class action lawsuit alleges the automaker committed fraud by making false and misleading statements and omissions about the use of E85 fuel, the judge ruled the fraud claim failed.

"As explained above, Fleury has not alleged with particularity that GM made any false representations on which Fleury relied in buying his 2016 Impala. The 'E85' window sticker and the statement that the 2016 Impala has Flex Fuel capability are not false or deceptive representations." — Judge Kendall

The judge also went on to dismiss a breach of warranty claim as time-barred based on a four-year statute of limitations.

The GM class action lawsuit was filed in the U.S. District Court for the Northern District of Illinois (Eastern Division): Michael Fleury vs. General Motors LLC.

The plaintiff is represented by Edelman Combs Latturner & Goodwin, LLC.

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