Should You Sue an Automaker for Bad Fuel Economy?

Heather Peters? victory in small claims court could loom large over the automotive industry.

Peters is the Honda Civic Hybrid driver who sued the car company in November 2011, arguing that her Civic not only failed to live up to the advertised EPA fuel-efficiency estimates, but also that her mileage decreased after she volunteered to have her Civic?s software reprogrammed, at Honda?s request, to extend the hybrid?s battery life. In Peters? claim, she stated that Honda "[f]raudulently represented gas mileage and hybrid performance. Also fraudulently induced me to do software update that made things worse."

Honda countered with a stack of testimonials by customers whose Civics are meeting or besting the EPA efficiency numbers, and by arguing that EPA?s numbers are estimates (your mileage may vary). But in February the small claims court commissioner in Los Angeles recently ruled in favor of Peters and awarded her $9867, though Honda is appealing the case.

The Peters case is another public-relations hit for Honda, which is still struggling to recover from the tsunami disaster a year ago and from the flop of its new Civic redesign for 2012. But this ruling, if it stands up, could resound across the car world. Could automakers really be held legally liable for fuel-economy estimates?

Inexact Science

Carmakers make no guarantee of fuel consumption. How could they? Not only are real-world driving conditions far different from the conditions under which new cars are tested, but driving styles vary wildly. So, because mpg is an inexact science, the EPA?s estimates for city, highway, and combined miles per gallon appear both as a single number and also as ranges for both city and highway driving.

In the case of Peters? 2006 Civic Hybrid, the single EPA number was 49 mpg for city and 51 for highway. But the ranges were 41 to 57 mpg city and 43 to 59 mpg highway. Peters and others taking legal action against Honda have claimed that their vehicles didn?t even meet the low end of these ranges much of the time.

However, here?s a further complication: Many auto experts don?t believe that the EPA tests do a good enough job at replicating real-world driving conditions and return overly optimistic mileage estimates (for reasons explained in full here). The EPA responded in 2008 and changed the way it calculates the window-sticker numbers, which is why a 2008 model has a lower EPA rating than an otherwise identical model from previous years?in some cases, the new ratings dropped the fuel economy estimates by 10 percent or more. Consider the Civic Hybrid: It was basically the same car in 2008 as it was in 2006, the year Peters bought hers. But because the EPA changed its methodology, the sticker mpg dropped from 49/51 on an ?06 Civic Hybrid to 40/45 on an ?08, with the combined figure falling from 50 mpg to 42 mpg.

So which set of numbers is more accurate? The EPA had 115 people supply their actual mileage figures from 2006 Civic Hybrids, while 61 people submitted their results from their 2008 Civic Hybrids. In both cases, real-world mileage was actually better than what the revised EPA estimates indicate. We saw the same thing recently when we tested two 40 mpg-rated cars?a new Hyundai Elantra and a Ford Focus?and did better than the latest EPA estimates. While we were suspicious of high-mileage claims, our results show that the new estimates are fairly good predictors of actual fuel efficiency (though your mileage will vary based on where, when, and how your drive). They?re certainly an improvement over the old tests.

But Peters? claim is not simply that her Civic Hybrid didn?t meet EPA numbers; rather, it?s that Honda knew the Civic wouldn?t achieve the original numbers?49 city and 51 highway?but used them anyway in its marketing. She claims that while the EPA certifies the window-sticker numbers, it?s up to automakers to determine which are the most realistic mileage claims to use for advertising. In other words: Carmakers can?t use any numbers that are higher the EPA?s estimates in their ads, but there?s nothing stopping them from using an estimate lower than the EPA?s.

Did Honda really believe or know that its Civic Hybrid wouldn?t live up to its estimates? Peters said yes; Honda denied it. This issue could be the crux of the appeal.

Software Update

The last twist in this tale involves a software update to the Civic Hybrid?s integrated motor-assist software. In 2010, Honda released a technical service bulletin that asked owners to return their cars to their dealerships to reflash their software "to help prevent IMA battery deterioration."

Honda said the issue was that the original factory programming engaged the battery-assist feature and auto idle stop (in which the gas engine shuts off at stops to eliminate engine idling) too often, which would diminish the battery life. In the TSB, Honda wrote that the effects of the reprogramming would include the following: (1) "When at an auto idle stop, the engine restarts sooner"; (2) "Even with up to four bars displayed on the IMA battery level gauge, auto idle stop may not occur"; and (3) "Reserving battery power to ensure that enough power is available to start the engine from a stop and for initial acceleration. This reduces IMA assist as vehicle speed increases."

We asked Chris Martin, a Honda spokesperson, if these changes would reduce fuel efficiency. His answer: "It depends. Some drivers would see an increase in fuel efficiency, but some would see decreases." We had our doubts about that?it would seem that using the battery less would necessarily lead to using the gas engine more, and getting decreased mileage. But Martin responded that it wasn?t that simple?not everyone would be using the battery less, which is why not everyone saw a decrease in fuel efficiency. The update programs the IMA software to work much the way it does Honda?s current hybrids.

To bolster his claim, Martin noted that Honda?s raw data for fuel economy estimates sent to EPA for certifying the Civic Hybrid did not change with the new software reprogramming (while minor variations occurred, the numbers came out the same).

Peters did not respond to PM?s emails about this story.

Legal Logjam?

This case is a strange one for a lot of reasons. For one thing, Peters filed in small claims court, which is informal and expedited, precludes a jury from hearing the case, and has no pretrial evidence discovery process. Perhaps most importantly, neither Honda nor Peters could have lawyers plead their cases on their behalf (Peters, however, is a former practicing lawyer).

However, several several other cases have been brought to trial or are still pending, the biggest of which is another case in California. A San Diego County Superior Court case is pending in a class-action lawsuit on behalf of 45,000 Hybrid Civic owners. Under proposed terms of that settlement, Hybrid Civic owners could receive up to $200 each and $1000 toward a new Honda.

The result of that huge suit, and Honda?s appeal in the Peters case, will go a long way toward sorting out these thorny questions of just who?s responsible for the mpg claims that appear in car ads and on the window stickers of shiny new cars on the dealer?s lot.

Source: http://www.popularmechanics.com/cars/news/fuel-economy/should-you-sue-an-automaker-over-bad-fuel-economy-6693124?src=rss

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