A federal judge sided with General Motors after an Illinois man blamed the car maker for his Chevy breaking down following regular use of E85 gasoline.
In October 2019, plaintiff Michael Fleury bought a used 2016 Chevrolet Impala Flex Fuel — a car which he said GM claimed could run on E85 fuel, which is a blend of 85% ethanol and gasoline. When Fleury began using E85 exclusively, he claims his car broke down.
He filed the lawsuit July 26, and an amended complaint Sept. 20. Fleury brought a putative class action, alleging a violation of the Illinois Consumer Fraud Act, and claims of fraud and breach of express warranty under Illinois law. GM moved to dismiss Fleury’s amended complaint for failure to state a claim.
Fleury, an Illinois resident, brought claims on behalf of over 100 proposed class members, seeking more than $5 million in collective damages from GM.
Fleury bought the car from Advantage Chevrolet, an authorized GM dealer in suburban Hodgkins. Fleury claimed the Flex Fuel feature, which allowed the car to operate on E85 fuel in addition to gasoline, incentivized him to buy the Impala. Before he bought the car, he saw a prominent ‘E85’ sticker in the window above the fuel filler, and he allegedly relied on the sticker in purchasing the vehicle. Fleury also saw an Advantage Chevrolet online ad that claimed the Impala’s engine included E85 FlexFuel capability — specifications that came from GM. Also, the car’s fuel filler cap was maize yellow, which GM used to denote a Flex Fuel vehicle.
Following an increase in gasoline prices in 2022, Fleury said he began using E85 regularly and had used the alternative high-ethanol fuel several times before without issue. Before using E85 regularly, Fleury said he consulted the owners manual to see if there were warnings or prohibitions about his intended use of E85. However, Fleury did not allege he read the owner’s manual before buying his car. The owner’s manual alerts users to the potential problem. GM’s service bulletin also provides a mechanism for authorized dealers to warn Flex Fuel drivers against excessive E85 use, according to court documents.
In early April 2022, following Fleury’s regular use of E85, Fleury said the check-engine light and a warning light displayed and the car allegedly lost power. He brought the car to Advantage Chevrolet, where the service department found the car had low fuel pressure from the high pressure fuel pump and the pump would need to be replaced. He allegedly was told the problems stemmed from his use of E85 fuel. A service advisor at Advantage Chevrolet also allegedly informed Fleury he should have been alternating fillups between E85 and gasoline, and that failing to do so caused the problems with his Impala.
In January, Fleury’s Impala allegedly failed an Illinois emissions test. To pass the test, Fleury’s car would need a new mass air flow sensor due to the ongoing failure of the high pressure fuel pump. Advantage Chevrolet allegedly required Fleury to pay for the diagnosis and repairs. GM later allegedly offered to fix the fuel pump after Fleury complained to the Better Business Bureau. Fixing the fuel pump wouldn't allow Fleury to operate his car using only E85 without risking damage, he alleged.
The court found Fleury’s injury avoidable. The judge said he could have asked the dealer about the meaning of Flex Fuel capability before running his car exclusively on E85. The court also found Fleury failed to identify a false or deceptive statement from GM.
The judge said he did not contend his Flex Fuel vehicle cannot use E85. Stating that Flex Fuel vehicles can run on E85—and even encouraging such use—didn't contradict the truth that using E85 exclusively may cause damage, the judge said.
According to the court, the only representations Fleury allegedly relied on before purchasing his car were the “E85” window sticker and the car dealership's advertisement. Neither of these representations were false or deceptive, according to the court. Rather, Fleury admits he used E85 several times without issue. Fleury didn't allege he relied on any statements suggesting the car could run solely on E85.
The breach of express warranty claim against GM also was thrown out. The court said the warranty accrued on the date of the Impala’s delivery to its first owner in June 2016 — more than four years before Fleury filed this lawsuit in July 2022.
Fleury was represented by Tara L. Goodwin, Carly Roman and Daniel Edelman, of Edelman, Combs, Latturner & Goodwin, of Chicago.
GM was represented by Justin B. Weiner, Stephanie A. Douglas and Jeffrey Turner, of Bush Seyferth, of Troy, Michigan; and Anthony M. Sam, of Cunningham, Meyer & Vedrine, of suburban Warrenville.