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‘Hot fuel’ heads to court
Plaintiffs seek class actions for 'rip-off' at the pumps

By David Tanner
staff writer

The battle against hot fuel is being waged legislatively in states like Texas and Missouri, and through lawsuits in a handful of federal courtrooms. What consumers want is to get what they pay for at the pump – not the hot, expanded fuel that’s being sold in many places.

As of press time, five lawsuits filed in December 2006 in four states were seeking class-action status against dozens of oil companies and fuel retailers. The federal court cases allege those companies – a list is available on landlinemag.com – violate consumer trust by selling less fuel energy than consumers pay for.

It’s all about the effects temperature has on the concentration of energy in a liquid gallon of fuel – be it gasoline or diesel.

“It’s an issue that has been effectively bottled up for 20 years and there was no way it was going to get resolved without a lawsuit and a judge’s order requiring the fuel retailers to install automatic temperature control devices,” George Zelcs, a Chicago attorney with the Korein Tillery, one of the firms filing lawsuits, told Land Line Magazine.

Although the Owner-Operator Independent Drivers Association is not a plaintiff in the lawsuits, the Association has been active in the research and consumer advocacy for its member truckers.

The groups of plaintiffs in the lawsuits are mostly owner-operators, Zelcs said, because of the cumulative effect the alleged rip-off has had on their bottom lines.

“The people that get screwed here are the people that have the least power,” said Zelcs, whose firm won large settlements in consumer cases against big tobacco.

“It’s not the trucking companies because the trucking companies are able to buy wholesale and get automatic temperature-controlled fuel. It’s the people that don’t have the leverage to do that – namely independent truckers and consumers – because there’s no one out there fighting their battles.”

OOIDA helped initiate that battle, thanks to the research of John Siebert of the OOIDA Foundation. With the help of truckers measuring fuel temperatures across the country during the last couple of years, Siebert was able to provide names of prospective plaintiffs and some hard numbers to attorneys.

“Hot fuel is motor fuel sold in the U.S. at a temperature above the century-old national standard of 60 degrees,” Siebert stated in a fact sheet being used by attorneys. “At hotter temperatures, fuel expands, reducing the energy content in a gallon.”

Hot fuel reportedly costs consumers between $1.7 billion and $2.3 billion per year, depending on fuel prices, according to a series on hot fuel published in August 2006 in The Kansas City Star.

That report led to more mainstream coverage of the hot fuel issue and helped the attorneys gain momentum prior to filing the lawsuits.

The five lawsuits filed in U.S. District Courts as of press time were:

  • Dec. 13 in the Northern District of California;
  • Dec. 15 in the District of New Jersey;
  • Dec. 29 in the District of Kansas; and
  • Dec. 22 and Dec. 30 in the Western District of Missouri.

Mark Rushing, an owner-operator and OOIDA member from Spearsville, LA, came forward as a plaintiff in the California lawsuit. He is leased to a company and splits the driving with his wife, Becky.

“We’re here not only representing the American truck driver, but every American consumer and we want to get the energy in our vehicles that we thought we had been paying for,” he said during a press conference held by the attorneys.

Consumers want money back
The plaintiffs allege that major fuel companies and retailers are knowingly selling fuel above 60 degrees without adjusting for volume changes that occur when a liquid gallon expands as it becomes warmer.

“In other words, a ‘gallon’ (measured strictly by volume) at any given temperature does not contain an equivalent amount of motor fuel as a ‘gallon’ of motor fuel at a different temperature,” attorneys stated in the California lawsuit.

In four of the lawsuits, plaintiffs are seeking $5 million in damages and are asking retailers to automate temperature controls at the pumps from now on.

The other lawsuit – filed Dec. 22, 2006, in Missouri – asks for restitution for all consumers who pay state and federal fuel taxes.

Combined, the plaintiffs in the five lawsuits are seeking class-action status for consumers in California, New Jersey, Arizona, Texas, Florida, North Carolina, Kansas, Missouri and Virginia.

The consumer group Public Citizen is also involved in getting the word out.

“Ultimately, Congress needs to protect U.S. consumers against the industry-wide practice of hot-fuel overcharges,” Public Citizen President Joan Claybrook said during the attorneys’ press conference.

Oil companies have claimed that retrofitting fuel pumps would be cost prohibitive and affect the market price of fuel.

Yet, in Canada, where fuel temperatures are generally lower than 60 degrees, the fuel companies have voluntarily retrofitted the pumps in the past decade because they were on the losing end.

Zelcs said the attorneys will be using the temperature controls in Canada to boost their case in the U.S.

Depending on who is doing the estimating, the cost for the retrofit is somewhere between $900 and $4,000 per pump, or as Siebert puts it, about “five days worth of profits” for the oil companies involved.

For a full list of plaintiffs and defendants, click here.

david_tanner@landlinemag.com