Well, She Won… Now We May All Lose

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Heather Peters (no relation to this writer) just won her lawsuit against Honda over what she argued were misleading claims about the gas mileage she’d get out of her then-new 2006 Civic hybrid. She was awarded $9,867 in compensation, the maximum amount she could have been awarded in small claims court. 

Now comes the deluge.

Because while Peters’ $9k judgment is small potatoes, the fact that she succeeded could encourage a tsunami of similar court cases that might end up costing Honda (and potentially other hybrid car sellers and so, ultimately, consumers ) a lot more than $9k.

As Peters (a lawyer) notes, there are at least 200,000 Honda Civic hybrid owners alone. That’s just one make/model of hybrid. There are at least a dozen different hybrid vehicles on the market  – and theoretically, the same case could be made against them, too.

But is this Honda’s (and the other car companies’) fault? Or does the fault lie with the federal government?

For it is not Honda – or any other automaker – that puts the mileage numbers on the window sticker.

It is the federal government.

The government (EPA) takes a new car, then runs it through its test loop. Mileage figures are posted on the window sticker based on these tests, which are by nature subjective. Hence the caveat, in plain standard English: Your mileage will vary. Note, not may.

Will.

The exact wording is as follows:

“Your actual mileage will vary depending on how you drive and maintain your vehicle  (italics added).”

And just under the big “best case” mileage numbers, in smaller type, one finds a range of “expected mileage.” As an example, this week I am test driving a new Fiat 500C. The “best case” number is 32 MPG highway. But underneath this is a range of “expected mileage” between a low of 26 MPG and an even higher high of 38 MPG.

In other words, your mileage will vary.

Unfortunately for Honda – and potentially every other seller of hybrid cars and perhaps cars, period –  there are a lot of people out there who cannot read and comprehend the meaning of plain English and worse, assume everything the government tells them must be true, since it’s the government that’s telling it to them.Thus, they become angry when reality disabuses them – but unfortunately, they channel their anger toward the wrong party. 

Here is the truth about the Civic hybrid – and all hybrids:

If you drive it very gingerly, if you keep it under 50MPH and accelerate very gradually, it is entirely possible to realize the federal government’s publicized “high” MPG figures – and even to exceed them. The problem, of course, is that it is difficult to drive this way if you ever want to get anywhere – and/or have any concern about not driving your fellow drivers to fury by impeding their progress.

There is also the problem of conditions. They, too, vary.

A Civic hybrid that does not have to ascend 8 percent grades every day, which is not driven at high altitudes (where the air is thinner) or for months on end in 20 degree weather is going to be easier on gas than a hybrid Civic that is subjected to any one of these conditions, or to all of them. And if, say, you run around on under-inflated tires, or need of a tune-up, then once again, your actual mileage will vary. 

So, arguably, Peters’ lawsuit was fundamentally wrongheaded – and the judgment, unjust. The court did not even try to determine how she actually drove her car, even though it is a critical piece of evidence. The only question considered was whether her car delivered the advertised mileage – notwithstanding the bold-faced caveat that the advertised mileage is for “comparison purposes only” and that (wait for it) your actual mileage will vary.

I’d be worried if I were a major (or minor) automaker because the same engineering-ignorant reasoning used by the court to award Peters her $9k could be used to award many others a lot more than $9k. Peters believes the potential payout could exceed $2 billion – and that’s just Honda.  If the other automakers are targeted along similar lines – and remember, legal precedents apply across the board – then the total sum could be many times a mere $2 billion. It could cripple the industry, not just the hybrid vehicle industry. The mileage of every single car on the road will vary, according to all the subjective conditions and use patterns each individual car is subjected to.

I test cars for a living and drive a new one every week. I can assure you that the mileage I see varies considerably from that promised by the window sticker. I have pushed it down by 50 percent (drive a car at 90 or 100 MPH and see how much your mileage varies) and – for a change of pace – done everything conceivable to eke as many MPGs out of it as possible by driving as slowly and a gingerly as possible.

These are extremes, of course – but the essential point remains: Your mileage will vary.

Unfortunately for Honda – and potentially, the entire car industry – it’s a point lost on both Peters and the California courts.

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54 COMMENTS

  1. Remember that old adage, “Honesty is the Best Policy”? If Honda gave that old adage a second thought, we wouldn’t be having this discussion. Unfortunately marketing and honesty are mutually exclusive terms.

    • I wonder whether Honda (or any car company) dares to contradict the EPA, though. It might not be illegal for them to say, “look, the EPA’s numbers are optimistic. You will probably average more like x MPGs”… but I expect they’d feel the regulatory wrath if they did so.

  2. Methyl sez: “What is it about software engineers that makes so many of us libertarian? … I suspect it’s because we spend so much time thinking about systems and breaking them down to component parts, figuring out failure modes.”

    And Boothe responds: “When you work with absolute values in your livelihood, you tend to see all of life in the light of truth.”

    Yes! A is A!

    You two articulate a tremendously important truth … the application of logic and rationality in all things, not just one’s livelihood, while at the same time acknowledging and incorporating our emotion-based aspect. In a logical way, of course. Ha-ha.

    How wonderful it is, isn’t it, to see clearly, or to hold as imperative the endeavor to see clearly? To be granted that gift … I think this is why I spend so much time being variously puzzled, exasperated and sort of fascinated by minds that seem inchaote and wayward, by a mental process that seems to operate from moment to moment without an objective. If the unexamined life can be argued to be not worth living, I’d go further and ask, what is the POINT of it?

    Anyway, your observations explain so much. Without an ability to question anything, then everything that comes over the transom makes equal sense. Iraq has WMDs? Okeydoky. No, wait, it’s that they hate our freedoms? All righty. Doc says, take these pills? Whatever you say, boss, you’re wearing the white coat. Pothole in the street? Whatever; it’s always been there. Turn 50, get fat? Well, yeah, that’s life. Flaccid, incurious, a kind of mental living death.

    The reason the pols get away with so much is because they CAN.

  3. Look for this lawyer to parlay her success in small claims court into a class action that will net her millions. Smart. Unethical as all hell, but smart.
    K-

  4. I am not an attorney, but have some experience in court, always on the defensive side and this case seems to be one that sees what it can get by throwing it against the wall and to see what sticks. In the county I live in, small claims court has a max of $2500 for the plaintiff. This court also allows whoever and whatever to be entered in as evidence, as I would assume this small claims court operates. I have actually noticed judges in small claims court not paying attention to the proceedings, which probably means they have arrived at a decision prior to the start of trial. My assumption is they do this because they know neither party is going to appeal due to attorney costs for another trial. This case may be different due to the precedent being set, and I would look for this to be overturned in appeals court. It would be interesting to see if the attorney for the plaintiff is working on a contingency basis or an hourly fee. If it is the first, I would look for that attorney to bow out of this case if appealed. If the attorney is working for an hourly fee, I would think the plaintiff might have second thoughts about how much she wants to pay out for a trial in a court room where the rules of evidence change quite a bit, and her expenses almost certainly would exceed the judgement of $9867.

  5. “…there are a lot of people out there who cannot read and comprehend the meaning of plain English…”

    Indeed, and the greatest contributors to the growth of the nanny state post-WWII have been those robed in black sitting on the bench, who’s only job is to reliably find the clear meaning of language in order to make proper judgments. The standards have severely declined here.

    This ridiculous suit should have been laughed out of court by a judge holding up the window sticker with the words “your mileage will vary” circled in red pen.

    Saddest thing is if the defendant had been “EPA” instead of “Honda” that very thing would have happened. Wasn’t this in California? No judge, especially in CA, wants to be the one who ruled against the EPA.

  6. The solution to this problem is obvious. The fedgov simply needs to pass a law that says automakers are “exempt” from lawsuits for deviations from the EPA mpg figures. Of course, by the same law, advertising would have rigid standards for the size as well as the wording of the disclaimer re “mileage will vary.”

    There, problem solved. 🙂

    • While that seems reasonable at face value, using a law to try and fix a bad law never works.

      The real problem is that the courts don’t seem to understand the concept of “reasonable care”. The concept of reasonable care was simply that if you did something and ended up with a bad result, you were indemnified if you took reasonable care in your actions.

      The litigation that plagues the drug industry is in most part caused by the fact that the concept of reasonable care has been forgotten. Drug companies spend about $1,000,000,000 to bring a new drug to the market. Much of that money is spent on trials. Despite all of that, if an adverse reaction to the drug is discovered later,the drug company is still on the hook.

      • Yes – that, and more people have become maggots.

        There have always been maggots, of course. But now maggots are common – and reaching a critical mass. People looking for an excuse (and excuse) to “cash in.” Shyster lawyers willing (salivating) to help them do it. A system that encourages it. The near-elimination of cultural shunning for having done it. Etc.

      • In many cases problems are swept under the rug and influence at the FDA is used. So ‘care’ isn’t even there at all. It’s a cartel enforcing a direction of medical care that would have been abandoned by now in a free market.

        • Amen. For anyone interested, read some time of the shift to allopathic medicine–what we practice today–in the early 1900’s. The Rockefellers had a strong influence in coaxing medical schools toward allopathy, and destroying competing schools of thought.

          Today’s brainwashing–called medical school–is little more than a thinly veiled pharmaceutical sales brochure.

  7. Why would the rest of us Pay? First this only affects Honda, and it was Small Claims, Second Honda Clearly lied. Toyota Prius owners don’t complain, because Toyota Hybrids mileage postings are accurate and the owners are getting those numbers.

    • Why would the rest of us pay? Because car companies, like all companies, pass on the cost of litigation to their consumers!

      On the Prius: I call BS on that, from direct personal experience driving a new Prius each year, every year since the first one came out. I have never gotten anywhere near the advertised MPG. Now, granted, that’s because I drive fast – but the point still stands: Your mileage will vary!

      • “Now, granted, that’s because I drive fast – but the point still stands: Your mileage will vary!”

        Top Gear did a great job of demonstrating this a few years ago when they put the Prius up against the BMW M3. The Prius only managed 14mpg compared to 16mpg from the V8 powered German.

        • Yup!

          I typically averaged low 30s – not bad,but much less than the advertised “best case” of nearly 50 MPG. This was driving at 75-80, accelerating briskly, etc.

    • Did you even read the article? EPA MILEAGE STANDARDS. Honda didn’t lie about anything. They don’t have the option to omit this information.

      Anyone who buys a new Honda once these judgments start coming down all over America will pay. Have you ever heard of a business that didn’t pass on costs to consumers?

  8. Since my 2008 Honda Civic (1.8L gas manual trans) gets considerably BETTER milage than the sticker states, does this mean I owe THEM money?

    FYI: My drive to work starts at 5:10 a.m, I generally make all the traffic lights (might have to drop a gear on occasion) and my speed is limited to about 62 mph (12 over posted limit).

    • “Since my 2008 Honda Civic (1.8L gas manual trans) gets considerably BETTER milage than the sticker states, does this mean I owe THEM money?”

      Watch out! F. Lee Bailey may be reading this blog….

  9. Manufactures should post the EPA numbers on top and then post their own numbers on the bottom:
    1 mpg city and 2 mpg highway.

    Government numbers: Gov’t Real
    Unemployment 8.6% 17.3%
    GDP 2.1% .6%
    Inflation 1.7% 5.7%

  10. Only in America!! Now they pay the penalty for allowing spurious lawsuits! that would not climb the court steps in any other country!

  11. It has been a while since I have seen the “Monroney” sticker, but IIRC under the MPG for city/hwy there is a range for each.

    ie city 30 / hwy 40
    Range city 22 to 35
    Range hwy 32 to 48

    I generally use the numbers when I compare different vehicles. Since they are tested under the same test, the numbers should be good enough for a general comparison between different vehicles.
    —————————————————————–
    Perhaps they should use Std Dev.when describing MPG figures.
    The indicated numbers would be the mean.

    ie. city 30 / hwy 40 with a SD city4.0/hwy3.5

    68% of drivers would get city(26-34)/hwy(36.5-43.5) ±1 SD
    95% of drivers would get city(22-38)/hwy(33 -47) ±2 SD
    99.7% of drivers would get city(18-42)/hwy(29.5 – 50.5) ±3 SD

    I am being a little facetious. There are probably some people that do not understand what is a standard deviation.
    I think a standard deviation with the MPG numbers would provide more information for the consumer.

    • “that do not understand what is a standard deviation.”

      I’d say lawyers who pull stunts like Heather Peters’ are using a standard deviation, because they have become standard deviants.

    • IMHO, anytime an AVERAGE is provided without a Standard Diviation, it’s a fool’s number. Averages are a terribly misleading value. But once the StDev value is included, those two values together tell the whole story. Unfortunately, most Americans would rather spend their effort memorizing football ‘stats’ than ever ask a buddy to teach them what a standard deviation is. Becuase of this, we get stuck with ‘average’ gas milage values and end up sueing everybody cause it mislead us.

      • One question regarding SD. If I Understand Correctly, a proper sample is needed to determine the SD. Since the cars have not been sold yet, a mechanism would be needed to obtain a representative sample of the driving public. The method used for sampling should be open to scrutiny and evaluation by the public.

        They probably will need at minimum 30-50 vehicles for the sample size. (Those more knowledgeable in statistics can correct me where I am wrong.)

  12. Does anyone besides me suspect that the mpg numbers for hybrids et al. electrics might be particularly optimized by the feds, for political reasons?

  13. I’ve had two Audi A-6s, 1 Passat wagon TDI, and 2 Subarus over the past 20 years. In every case, driving a highly variable route that includes grades and curves I have consistently gotten within 5% of the stated mileages. Always, and I don’t baby my cars.

    5% seems a reasonable variation for such things. The hybrid folks are seeing 10%, sometimes 15% or more variation. That is not in the same league.

    • Well, it’s a little different in that hybrids are optimized more for low-speed (“city”) driving whereas it’s typically the opposite for a hybrid. People who buy hybrids who drive often drive at highway speeds are going to be disappointed by the mileage they get.

      • Pretty much Eric. Hybrids are best for city driving and stop and go 55 mph driving That is what they are made for. An electric motor that is never used during long highway trips except possibly a hill will not do that much better but it takes little in brains to figure that one out.

          • Oh…My…God…

            This is just priceless! Wish I had a camera just yesterday when I was driving in the left lane, looking to pass a woman driving a Chrysler LHS with a handicapped plate and left turn signal on for about 1/4 mile.

            Never mind why she needed to be in the left lane of the four available with no cars around her. She could have gotten over when I was 500 yards away, 300 yards away, 100 yards away, but no she waited until I was right next to her to come into my lane.

            Maybe she wanted to see how I handled that ’92 Ranger with the brakes applied, on the other side of the yellow line where all the gravel ends up and the sand from the recent snow clearing efforts, going 75 mph.

            Just fine thanks, I only ended up with the front end about 45 degrees to the left of my line of travel and kept just enough air molecules between myself and the Jersey barrier to keep the paint on the fender.

            I’ll see if I can get a little more sideways next time. The bed really really wants to get in front of the front clip in these situations and I could tell it was really disappointed.

            Seriously I could send you guys enough material just from Seattle that you might have to open another site. Every other car is a Prius or Subaru with Obama stickers and the rainbow or equal sign on the back. Prime territory, I tell you.

          • Yeah, we had to do it! The idea was just too perfect not to. Not to mention all the material we can find by just turning on a camera. Petty much any camera will do. Just have to make a mount that sits at eye level in the passenger seat.

      • I disagree. I had a 2005 prius which got 50-60 miles per gallon on the freeway (at appr. 70 mph) whereas it was the stop and go on surface streets which killed the mileage. The opposite of what Toyota said it would be. I had this prius for 5 years.

        • Again – your mileage (and mine) will vary! There’s no “agree” or “disagree.” You got the mileage you got, I got the mileage I got. We’re both right.

  14. I think we need more cases like this. Yes the price of cars will go up if the car manufacturers are forced to pay these fines. And if the price goes up, fewer will be sold. Then, hopefully, the car manufacturers will get the message: we need to get the gov’t out of the car business and deal honestly and directly with the consumer.

    If a sticker says some number and is then qualified by: your mileage WILL vary, then what’s the purpose of the sticker in the first place? It can be virtually anything depending on many, many different driving factors.

    The auto industry doesn’t need the courts to cripple them, they can do a fine job of that all by themselves. And then they can just go to the gov’t for a bailout. You’ll have to excuse those of us who have no love loss for the auto industry.

  15. The Feds make up the imaginary MPG numbers, but the car manufacturers are only too happy to use the numbers in their advertising. This makes them complicit with the government.

    • That’s true – to an extent. They are required to post the EPA’s numbers on the “Monroney” (window sticker) and aren’t allowed to post their own numbers there.

      That said, you’re right that they often take the EPA’s numbers and run them in their own advertising, which makes them at least partially complicit.

      • Let’s say an automaker has their own internal fuel economy test developed over decades and that it’s a very good test. That it produces accurate predictions of fuel economy for most drivers. Let’s also say it shows fuel economy better than the EPA test. The marketing department runs with the results in puts them in the advertisements. The competition who’s cars look best under the EPA tests, because they designed them for EPA numbers, start complaining to the government. Next thing you know there is some three letter agency of the federal government investigating the first automaker and heavy fines are handed out for unfair competition or some other violation of some federal edict.

        The only numbers safe to use are those generated by the government mandated test. Design around real world fuel economy and not only might hurt the CAFE score it can’t be used to sell the cars. It is lose-lose for the automakers.

        Now the court has put Honda and possibly other manufacturers in a catch-22. How do they advertise fuel economy? Rock, meet hard place.

        • Correct, but you and I can’t get the gov’t out of the automobile business. Only the automobile manufacturers have the resources, and political clout to do that. So they played a big part in making their beds so now they can lay in them.

          I’m a software engineer working in the auto industry now for years. I’m not an expert like Eric and others here but I see the back scratching that goes on; the abusive union practices etc… Still no love loss here for the industry.

          • How would an automaker get the government out of the business at this point in time? Ford stands alone as the last of the Big Three that hasn’t been fully taken into the captive grasp of the federal government. The import makes are pushed into a corner where they either play ball or get out of this market. BMW ignores CAFE and passes on the fines, but that’s about as rebellious as it’s going to get.

            The few upstarts of any notice are dependent upon money channeled from productive persons by the government into their hands. These being the ‘green’ car companies.

            So I don’t know how automakers can get off this road of being amtraked. The auto industry is being regulated politicized into bankruptcy and government take over. Yes, it’s significantly their fault for using government way back when, but now, it’s pretty much over unless the people in mass object to it and start turning the wheels backwards.

          • @BrentP:

            it’s significantly their fault for using government way back when, but now, it’s pretty much over

            Exactly what’s happening to medicine, too; they cartelized themselves way back when.

            Medicine–the AMA actually–approached government to make a Faustian bargain; you, gov, protect me from competition with legal licensing. And I medicine will “police myself” internally.

            The deal’s up now, and there’s hell to pay.

            Like every other profession, there should be NO government licensing for medicine.

            Clovers love this one…”Oh but weeaaaaah! Doctors will kill people!”

            I didn’t say NO licensing, Clover. I said no government licensing. Private licensing will open medicine to the refreshing and invigorating winds of competition, drive prices down and quality up, and user in a new era of health.

            So back to cars: same identical situation. The suffocating regulations have deprived us of innovative cars for too long. I WANT to drive around in an 1400-pound car for my daily commute. And when I take my kids on a trip, I WANT to drive in a 3800-pound car with a squintillion airbags. Powered by a 1500bhp jet turbine. With electric motors for off-the-line acceleration. And machine gun pods.

            But I can’t. Government won’t let me.

          • Gil, I think Methyl just wants his grandmother to be able to afford her blood pressure medicine or something along those lines.

            Government intervention did not advance medical science beyond bone saws and leeches. Technical innovation did that.

            With the government’s take over of health care, I would expect a return to some more primitive practice of medicine. I don’t know if it will go as far as bone saws, but there sure will be a lot of leeches.

          • What is it about software engineers that makes so many of us libertarian? I’d estimate nearly half my colleagues are libertarian of some persuasion, and probably a quarter are full-on.

            I suspect it’s because we spend so much time thinking about systems and breaking them down to component parts, figuring out failure modes.

            It makes it easy to see what a clusterfuck government is!

          • Methyl, you’re quite right. When you work with absolute values in your livelihood, you tend to see all of life in the light of truth. Libertarianism is the political philosophy of non-aggression. The only logically conceivable use of violence is self defense against aggression or as corrective action after aggression has occurred. It is elegantly simple, the same as 1 = ON or True and 0 = OFF or False. That is why it comes naturally to some of us.

            Eric did an article on the LCD recently showing it in a dyslogistic light as it applies to the cloverite masses. But when I was growing up my dad taught me to reduce every problem or argument down to its Lowest Common Denominator before evaluating it. That is the crux of software engineering, instrumentation, control systems and all forms of logic. Anything other than the simplest, most basic form of a problem is extraneous fluff.

            When you begin to apply these principles honestly to government, politics and law, you stand a great chance of becoming a libertarian. If one buys into circular logic, legal sophistry and political obfuscation, they will probably become a Demoplican or a Republicrat.

    • Agreed Vince. If the car manufacturer doesn’t have the balls to stand up to the gov’t and do good business then they are responsible, period. And from the consumer’s pov it’s the same old moral hazard of gov’t intervention: the gov’t says it’s been tested, the manufacturer backs that up, so why invest my own time and money in any further research?

    • Yes, now they Honda, can appeal. And in the appeal they allow Attorneys. But she’s an attorney also, although not practicing.

      • By the sound of it she doesn’t need to practice – she’s already word perfect. In a proper court though I doubt she will win again.

        In the words of a celebrated Mr Micawber (I think it was) – “The law Sir, is a h’ass.’

        KLen.

        • I don’t know her – so this is conjecture (and benefit of the doubt conjecture): She may be like a great many hybrid buyers who don’t have any technical knowledge. They just hear “great gas mileage” – and sign right up. They don’t realize, going in, that while a hybrid can deliver relatively high gas mileage if it is driven in such a way as to optimize efficiency, in the real word, actually driving that way can be difficult or awkward – perhaps even not possible. In which case, the actual mileage will be a disappointment.

          • I am surprised what little you know about gas mileage tests. They do not test up to a maximum of 50 mph! If that were the case my sticker on my car would be in the mid 40s highway instead of 35. They actually changed the testing years ago to make it more realistic on what gas mileage you would get on the road. They made it so you can easily beat the numbers if you take it easy.

            Some people are incapable of keeping from exaggerating. I guess if you try to prove a point you have to make it twice as bad as it actually is. Yes if you are going to travel 75 mph you are never going to get what is on the sticker but that is a far distance from 50.

            The case will be appealed. There was a class action case that was created to make some lawyers a lot of money. I guess it is the right and liberty that the lawyers are able to steal from us.

        • In the words of a celebrated Mr Micawber (I think it was) – “The law Sir, is a h’ass.’

          http://www.bartleby.com/73/1002.html

          It was Mr. Bumble, in “Oliver Twist”.

          If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

          Mind you, I didn’t pull this up from memory! 😉

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