Youngstown Daily Legal News

Bill grants immunity to retailers from consumer misfueling

TIFFANY L. PARKS
Special to the Legal News
Published: August 4, 2015

The Ohio Petroleum Marketers & Convenience Store Association, Ohio Farmers Union and the Associated Food and Petroleum Dealers have joined a Findlay lawmaker in pushing for the passage of a bill that would establish qualified immunity for the use of incompatible motor fuel in an engine or motor.

Senate Bill 150, sponsored by Sen. Cliff Hite, a Republican, also would limit the product liability law with respect to motor fuel and motor fuel additives and prohibit an insurer from denying a claim on the basis that an underground storage tank is not compatible with a motor fuel if the state fire marshal has determined otherwise.

“Convenience stores are America’s fueling stations,” said Jennifer Rhoads, OPMCA president and CEO, adding that convenience stores sell the great majority of the gasoline purchased in the U.S. “A total of 4,035 convenience stores sell motor fuels in Ohio, accounting for 5.9 billion gallons sold annually. Overall, 78 percent of all convenience stores in Ohio sell motor fuels. OPMCA is in support of SB 150.”

In general, Rhoads says retailers are agnostic about the fuels they sell.

“They simply want to sell fuels that are legal, available in sufficient quantities and meet the demands of consumers,” she said.

However, the volume of renewable fuels and the diversity of new fuels vying for market share are fueling concerns about fuel compatibility.

“Many emerging fuels are approved for use only with specific vehicles,” Rhoads said. “However, if a consumer uses one of these fuels in a nonapproved vehicle or engine, the retailer could be held liable for voiding the consumer’s vehicle warranty or damaging components of the vehicle. This is a significant risk that limits retailer willingness to offer new fuels.”

Rhoads said retailers in Ohio and across the country have expressed concern over potential liability from consumer misfueling.

The National Association of Convenience Stores recently surveyed consumers and retailers to assess current market conditions and more than 45 percent of retailers cited liability concerns over offering new fuels in the retail marketplace.

“More than half of the retailers surveyed said that reasonable protection from misfueling liability would entice them to sell emerging fuels,” Rhoads said.

“Further complicating matters, the NACS survey revealed that three of five consumers who would consider using an emerging fuel would plan to do so with an incompatible vehicle. In a changing fuels landscape, consumer misfueling is a very real concern.”

Roger Wise, Ohio Farmers Union treasurer, agreed.

“Farmers have been told for some time by filling station operators that they fear installing more fuel choices at their pumps due to the threat that they could be sued if a motorist, for instance, pumps an incompatible fuel into their vehicle because they weren’t paying attention to what they were doing,” he said. “If there is clear labeling or signage and the filling station staff had nothing to do with a mistake such as this at the pump, the retailer should hold no liability.”

Terry Fleming of the Associated Food and Petroleum Dealers said enacting SB 150 would not protect dealers from their own mistakes or conflict with federal or state laws on fuels.

“This bill would provide some incentive for service stations to provide new fuels as they become available to the motoring public without fear that mistakes made by such public could result in costly law suits,” he said.

“The future fuels we may be using or those yet to be discovered will take some getting used to just as when lead was removed and at one point in time you had lead or unleaded to choose from. This bill is a good step forward for protecting service station owners and encouraging alternative fuel development.”

Under the bill, immunity would not be applicable if a fuel pump was not properly maintained or did not correctly identify the type of fuel dispensed from the pump.

Rhoads said retailers identify fuel pumps in accordance with state and federal law.

“While retailers proudly serve time-starved consumers, they remain concerned that consumers unfamiliar with an emerging fuel’s compatibility with their vehicle or engine may inadvertently choose to purchase an incompatible fuel,” she said.

“Moreover, consumers’ sensitivity about the price of fuel could entice them to intentionally purchase a new fuel, which may in fact be offered at lesser price than conventional gasoline, with knowledge that the fuel is not compatible with their vehicle or engine. Consumers making that decision should assume its risk, not have the ability to later blame the retailer.”

SB 150 is before the Senate Civil Justice Committee.

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