Opinion
No. 2:21-CV-19
2022-11-22
Seth HACKLER, individually and on behalf of all others similarly situated, Plaintiff, v. GENERAL MOTORS LLC, Defendant.
ORDER LISA GODBEY WOOD, JUDGE
Before the Court is Defendant General Motors LLC's ("GM") motion for summary judgment. Dkt. No. 56. The motion has been fully briefed and is ripe for review. Dkt. Nos. 56, 57, 58, 63, 64, 65, 70. For the reasons stated below, GM's motion is GRANTED.
BACKGROUND
Plaintiff Seth Hackler ("Plaintiff") initiated this putative class action against GM on February 22, 2021. Dkt. No. 1. In April 2013, Plaintiff bought a new 2013 Chevrolet Silverado from Palm Chevrolet in Ocala, Florida. Dkt. No. 64-33 at 7:5-8:12. Plaintiff's Silverado is equipped with a Generation IV 5.3 Liter V8 Vortec 5300 LC9 Engine ("Gen IV Engine"). Dkt. No. 58 ¶ 6; Dkt. No. 65 ¶ 6. GM designed the Gen IV Engine that is installed in Plaintiff's vehicle, as well as other General Motors Corporation ("GMC") and Chevrolet vehicle models manufactured in 2011 through 2014 ("Class Vehicles"). Dkt. No. 56 at 2 n.1.
Plaintiff alleges that GM sold numerous Class Vehicles, despite knowing that they all suffered from an "inherent defect," described as an "Oil Consumption Defect," resulting in excessive oil loss in certain Gen IV Engines. Dkt. No. 1 ¶ 7. GM first learned of the oil consumption issues with certain Gen IV Engines "sometime late in 2008" or "2009." Dkt. No. 64-2 at 12:6-15; Dkt. No. 57-3 at 5:1-6:13-15. In 2009, GM launched an investigation called the "Red-X" investigation and asked dealerships to return certain 2007 Gen IV Engines to GM for the Red-X team to assess the root cause of excessive oil consumption in those engines. Dkt. No. 58 ¶ 9; Dkt. No. 65 ¶ 9. The Red-X investigation "identified the primary root cause of oil consumption as the location of the [Active Fuel Management ("AFM")] oil pressure relief valve, and the secondary root cause as the higher tension oil pump spring used in the first three months of production for the 2007 model year." Dkt. No. 70 at 2; Dkt. No. 65 ¶ 14 (citing Dkt. 64-4 at 2, which shows the investigation's conclusion regarding the AFM valve). The Red-X investigation and subsequent report were deemed "confidential" and were not publicly available. Dkt. No. 63 at 10; Dkt. No. 64-6 at 20:5-21:15.
After the Red-X investigation, GM made a series of design changes on future Gen IV Engines and issued a Technical Service Bulletin ("TSB") addressing the oil consumption issues for the 2007 and 2008 model year. Dkt. No. 58 ¶ 18; Dkt. No. 65 ¶ 18. GM issued updated TSBs to reflect other service suggestions in the following years. Dkt. No. 58 ¶¶ 15-24; Dkt. No. 65 ¶¶ 15-24. Through the initial TSB, GM instructed its dealership technicians to conduct an oil consumption test, and if an issue was found, to install an AFM shield. Dkt. No. 58 ¶ 18; Dkt. No. 65 ¶ 18. It also instructed dealers "to re-evaluate the vehicle for excess oil consumption and to replace the pistons and piston rings if oil consumption was still greater than 1 quart in 2,000 miles." Dkt. No. 58 ¶ 21; Dkt. No. 65 ¶ 21. An updated TSB further instructed dealers to make AFM valve installations free of charge for customers who reported excessive oil consumption, or any time a Gen IV Engine's oil pan was removed, during the warranty period. Dkt. No. 58 ¶ 20; Dkt. No. 65 ¶ 20 (disputing the assertion only to the extent that the repairs were "free of charge if a customer reported oil consumption" because the "TSB require[d] customers to undergo a cryptic and time-consuming oil consumption test to first qualify for repairs").
Plaintiff's 2013 Silverado, a Class Vehicle, is equipped with all the design changes GM implemented following the Red-X investigation and contains '278 piston rings, as opposed to the '251 piston rings, which were used in pre-2010 model year vehicles. Dkt. No. 58 ¶¶ 15, 21; Dkt. No. 65 ¶¶ 15, 21.
During discovery, Plaintiff testified that, in 2015, his Class Vehicle went into "limp mode" while he was driving it, causing his oil light to turn on and "literally shut[ting his] vehicle down." Dkt. No. 64-33 at 22:12-15. This forced Plaintiff to pull off the road into a gas station to check his oil levels. Id. at 22:14-19. After checking his oil levels, Plaintiff added two and one-half quarts of oil to get home. Id. at 22:23-23:8. Within the next two days, Plaintiff took his vehicle to VanNess Chevrolet, and VanNess told Plaintiff his oil "looked good" and performed an oil change. Id. at 23:23-24:5; Id. at 24:22-25:7. Plaintiff testified he next encountered an oil leak in 2017, when a mechanic named "Brian" in North Carolina, who is not affiliated with GM, was replacing his wheel hubs. Id. at 16:14-18:8. Brian informed Plaintiff he had an oil leak from the "rear main seal," which Brian subsequently repaired. Id. Plaintiff alleges that "during that time frame [he] also took [the Class Vehicle] to VanNess Chevrolet," when it had approximately 80,000 miles on the odometer. Id. at 20:7-21:8. Plaintiff testified that, at that time, VanNess told him "everything was in specs." Id. Plaintiff testified that then, "in late 2017, early 2018," when his Class Vehicle had approximately 100,000 miles on the odometer, he took it back to VanNess because his "oil pressure light . . . came on." Id. at 26:18-24. Plaintiff testified that this time, VanNess told him his Class Vehicle needed an upgraded valve cover "to help with oil consumption." Id. at 29:7-14.
As a result of the oil consumption issues with his Class Vehicle, Plaintiff brought this lawsuit. In his complaint, Plaintiff alleged GM violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count 1), breached an express warranty (Count 2), committed fraudulent concealment/omission (Count 3), received unjust enrichment (Count 4), and violated the Magnuson-Moss Warranty Act (Count 5). Dkt. No. 1 at 64-75. On January 28, 2022, the Court ruled on GM's motion to dismiss, dismissing all of Plaintiff's claims except his FDUTPA claim. Dkt. Nos. 14, 50. Now, pursuant to Federal Rule of Civil Procedure 56, GM moves for summary judgment on Plaintiff's remaining FDUTPA claim. Dkt. No. 56. For the following reasons, GM's motion for summary judgment, id., is GRANTED.
LEGAL STANDARD
Summary judgment "shall" be granted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" where the evidence would allow "a reasonable jury to return a verdict for the nonmoving party." FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" only if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Factual disputes that are "irrelevant or unnecessary" are not sufficient to survive summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must show the court that there is an absence of evidence to support the non-moving party's case. See id. at 325, 106 S.Ct. 2548.
If the moving party discharges this burden, the burden shifts to the non-movant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. See Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The nonmovant may satisfy this burden in one of two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332, 106 S.Ct. 2548 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden with nothing more "than a repetition of his conclusional allegations, summary judgment for the [movant is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION
Plaintiff alleges that GM violated FDUTPA because it knowingly sold vehicles with an "Oil Consumption Defect." Dkt. No. 1 ¶¶ 5-7. GM counters that Plaintiff's FDUTPA claim is barred by the statute of limitations. Dkt. No. 56 at 9-10.
FDUTPA prohibits "unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce." Fla. Stat. § 501.204(1). "The elements comprising a consumer claim for damages under FDUTPA are: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983 (11th Cir. 2016) (citing City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. Dist. Ct. App. 2008)).
The statute of limitations for claims brought under FDUTPA is four years, beginning at the time of purchase. See Speier-Roche v. Volkswagen Grp. of Am. Inc., No. 14-20107-CIV, 2014 WL 1745050, at *6 (S.D. Fla. Apr. 30, 2014). But under Florida law, evidence of fraudulent concealment can toll the statute of limitations for a claim when the plaintiff proves "(1) successful concealment of the cause of action; (2) fraudulent means to achieve that concealment and (3) that the plaintiff exercised reasonable care and diligence in seeking to discover the facts that form the basis of the claim." Razor Capital, LLC v. CMAX Fin., LLC, No. 17-civ-80388, 2017 WL 3481761, at *4 (S.D. Fla. Aug. 14, 2017) (citing Berisford v. Jack Eckerd Corp., 667 So. 2d 809, 811-12 (Fla. Dist. Ct. App. 1995)). In this equitable posture, fraudulent concealment "focuses on subsequent actions to keep the improper conduct shrouded from sight." W. Brook Isles Partner's 1, LLC v. Com. Land Title Ins. Co., 163 So. 3d 635, 639 (Fla. Dist. Ct. App. 2015). Thus, Plaintiff must prove "that [d]efendant deliberately and actively concealed the material facts for the purpose of inducing [him] to delay filing this action." Speier-Roche, 2014 WL 1745050, at *7; see also In re Engle, No. 3:09-cv-10000-J-32JBT, 2012 WL 12904243, at *5 (M.D. Fla. Nov. 26, 2012) (explaining that a plaintiff alleging fraudulent concealment for tolling purposes must prove "an affirmative act that served to dupe, trick or hoodwink the plaintiff such that he or she was falsely enticed into inaction after her cause of action accrued").
"The Eleventh Circuit has explained that '[f]raudulent concealment requires the defendants to engage in the willful concealment of the cause of action using fraudulent means to achieve that concealment.' " Razor Capital, LLC, 2017 WL 3481761, at *4 (quoting Raie v. Cheminova, Inc., 336 F.3d 1278, 1282 n.1 (11th Cir. 2003) (citing Berisford, 667 So. 2d at 811)). It "goes beyond mere non-disclosure[,] and must constitute active and willful concealment." Id. at *5.
Furthermore, "neither diligent nor non-diligent plaintiffs are 'protected from the expiration of claims the factual basis for which they could and should have discovered through the exercise of due diligence.' " Padilla v. Porsche Cars N. Am., Inc., No. 18-24988-CIV-MORENO, 2020 WL 1472301, at *5 (S.D. Fla. Mar. 26, 2020) (quoting Morton's Mkt., Inc. v. Gustafson's Dairy, Inc., 198 F.3d 823, 836 (11th Cir. 1999), amended in part on other grounds, 211 F.3d 1224 (11th Cir. 2000)). "Such plaintiffs cannot demand protection from a time-barred claim on grounds that the factual basis for the claim 'was shrouded by the veil of fraudulent concealment.' " Id. (quoting Morton's Mkt., Inc., 198 F.3d at 836).
Plaintiff argues his FDUTPA claim is not barred by the four-year statute of limitations because GM fraudulently concealed the Oil Consumption Defect. Dkt. No. 63 at 13-15. However, even taking all inferences in favor of Plaintiff, the evidence shows no dispute of an issue of material fact regarding GM's alleged fraudulent concealment.
Plaintiff alleges that GM made misrepresentations and omissions amounting to fraudulent concealment in three ways: (1) GM's confidential report from the Red-X investigation, (2) GM's TSBs, and (3) GM's technicians' diagnoses of Plaintiff's vehicle. Id. at 14.
First, that GM did not disclose the findings from the Red-X investigation to the public or to all its dealers, and that the report was deemed "[c]onfidential—not to be produced for distribution outside of General Motors," dkt. no. 63 at 10; dkt. no. 64-6 at 20:5-21:19, merely amounts to non-disclosure. This is insufficient evidence of fraudulent concealment. See Razor Capital, LLC, 2017 WL 3481761, at *5 (explaining that fraudulent concealment "goes beyond mere non-disclosure"). Further, Plaintiff has not shown that he relied on the Red-X report, or rather, its omission, after his cause of action accrued, nor could he have given the report's confidential nature.
As for the TSBs, they might, under different circumstances, be evidence of fraudulent concealment. However, Plaintiff has offered no evidence that GM, in diagnosing his Class Vehicle, acted as instructed by the TSBs, or in any manner, to prevent Plaintiff from discovering his claim. Instead, Plaintiff testified that he took his Class Vehicle to VanNess with oil-related complaints on three separate occasions, the first in 2015, the next in 2017, and the last in either "late 2017, [or] early 2018." Dkt. No. 64-33 at 22:5-24:5; Id. at 21:9-18; Id. at 26:18-24. On these three visits, Plaintiff contends all that VanNess did was perform an oil change, id. at 24:22-25:7, tell him his oil was "within 'specs,' " dkt. no. 63 at 15; dkt. no. 64-33 at 21:9-18, and in "early 2018, late 2017," tell him he needed an upgraded valve cover, id. at 26:15-27:5. Regarding each of these visits, Plaintiff admitted he does not know if VanNess performed any tests, including an oil consumption test, and does not remember whether VanNess told him anything else regarding his Class Vehicle's oil consumption levels, including what procedures they conducted to diagnose the issue each time. Id. at 25:8-25; Id. at 27:20-28:1. So, Plaintiff has not shown how the TSBs, which Plaintiff alleges instructed dealerships to perform "timely and burdensome oil consumption test[s]," prevented him from discovering his claims, when his Class Vehicle was never the subject of these directives, either in action, or by the TSBs own terms. Dkt. No. 63 at 14; see generally Dkt. No. 64-19.
It is undisputed that GM released at least two more TSBs related to a "redesigned rocker cover," in vehicles manufactured after February 10, 2011. Dkt. No. 58 ¶¶ 23, 24, 27, 28; Dkt. No. 65 ¶¶ 23, 24, 27, 28. The first made the new rocker cover available as a service part for earlier-manufactured Gen IV engines. Dkt. No. 58 ¶¶ 23, 24; Dkt. No. 65 ¶¶ 23, 24. The second addressed issues with the rocker cover installed in some 2012 and 2013 Gen IV engine vehicles stemming from a "short-term quality spill by the supplier of rocker covers" at a manufacturing plant in Sialo, Guanajuato, Mexico, by incorporating the vehicles with the redesigned rocker cover in the TSB addressing customer comments regarding excessive oil consumption, generally, in higher mileage vehicles. Dkt. No. 58 ¶¶ 27, 28; Dkt. No. 65 ¶¶ 27, 28. However, Plaintiff contends that his fraudulent concealment claims stem from the initial TSB's instructions to conduct "timely and burdensome oil consumption test[s]," and the subsequent update to that TSB regarding warranty applicability. Dkt. No. 63 at 14. Regardless, the second TSB incorporating the vehicles with the redesigned rocker cover does not require customers to "return multiple times to have the usage verified" and states two possible causes, including issues with the piston ring grooves, which Plaintiff contends GM concealed. Dkt. No. 64-31 at 1, 2.
Similarly, Plaintiff has not presented evidence to show that GM's technicians' diagnoses were false or misleading or intended to conceal a defect. Nor has he submitted evidence as to how GM's technicians prevented him from discovering his claims. Instead, Plaintiff's visits to VanNess, described supra, prove only that VanNess checked Plaintiff's oil levels when asked, conducted an oil change, and, apparently sometime after the limitations period, "in late 2017, early 2018," suggested an upgraded valve cover. Dkt. No. 64-33 at 26:15-27:5. Plaintiff has not shown that any of these diagnoses or suggestions were false or misleading. Rather, he contends that because VanNess did not disclose the Oil Consumption Defect present in other Gen IV Engines, it actively and willfully concealed the defect from Plaintiff to prevent him from discovering his claims. However, like the Red-X investigation report and the TSBs, GM's mere non-disclosure here, with nothing more, is also insufficient to prove active and willful concealment.
Despite Plaintiff's insistence that "there is no evidence Plaintiff was not reasonable and diligent," dkt. no. 63 at 14, Plaintiff's own evidence shows that he discovered the facts necessary for his FDUTPA claim before the limitations period expired. Plaintiff bought his Class Vehicle in April 2013 but did not bring the instant suit until February 2021—seven years, ten months later. See Dkt. No. 1 ¶ 26; id. at 75. Yet he contends he first encountered the Oil Consumption Defect in 2015 when his Class Vehicle entered "limp mode." Dkt. No. 64-33 at 24:8-25:25 (stating that two days after his Class Vehicle went into "limp mode," Plaintiff took it to VanNess, whose technicians performed an oil change, and that he is unaware of any tests performed or diagnoses made). Plaintiff did not ask what VanNess did to diagnose the issue and is not aware of any tests that were performed at that time—he merely argues the dealership did not inform him of the alleged defect. Id. at 25:8-25. Then, again in 2017, Plaintiff testified that a mechanic named "Brian" told Plaintiff he had an oil leak and repaired the Class Vehicle's "rear main seal," id. at 16:14-18:8. Plaintiff never asked Brian the cause of the oil leak, nor did Brian ever explain the cause to Plaintiff. Id. at 20:5-16. Further, Plaintiff testified that after Brian repaired the Class Vehicle's "rear main seal," Plaintiff also took the vehicle to VanNess "during that time frame" and VanNess told him everything was "within 'specs.' " Id. at 21:9-18. Again, Plaintiff testified he did not ask either Brian or VanNess what the cause of the oil leaks was and does not remember if they told him. Id. at 20:5-16; Id. at 30:2-24.
If anything, Plaintiff's evidence hurts his case by showing that in exercising "reasonable [care] and diligen[ce]," dkt. no. 63 at 14, he should have discovered the factual basis for his claims based on the "numerous complaints" to which he cites on publicly available online car forums or on the National Highway Traffic Safety Administration, all predating the statute of limitations' expiration. Dkt. No. 1 ¶¶ 124-47 (complaints dated during the limitations period or before, including but not limited to: July 1, 2008, January 2, 2020, September 14, 2014, March 31, 2015, January 12, 2016, February 4, 2016); see also Padilla, 2020 WL 1472301, at *6 (finding that complaints in an online car forum that plaintiffs' provided as proof of a defect showed a lack of diligence on their part because the complaints predated the statute of limitations' expiration). Thus, through these allegations, Plaintiff essentially agrees that acting "reasonable and diligent" in researching oil consumption issues in Gen IV Engines could have shown that the Oil Consumption Defect persisted beyond the 2007 model year engines. Dkt. No. 63 at 14; Dkt. No. 1 ¶¶ 124-47.
Because these facts were "known by or available" to Plaintiff, he could have brought his claim against GM within the limitations period, but instead, chose not to. Padilla, 2020 WL 1472301, at *6. Because fraudulent-concealment tolling requires proof of "fraudulent means" to achieve that concealment, Razor Capital, LLC, 2017 WL 3481761, at *4, even taking all the evidence in the light most favorable to Plaintiff, the evidence, at most, amounts to inaction or "non-disclosure" by GM. Id. This, too, is insufficient to prove fraudulent concealment for tolling purposes.
In any event, even if Plaintiff's claims were not time barred, he still fails to show an actionable design defect because he has no expert. See Breakstone v. Caterpillar, Inc., No. 09-23324, 2010 WL 2164440, at *5 (S.D. Fla. May 26, 2010) ("[T]he requirement that [plaintiff] show an actionable defect also exists under FDUTPA." (citing Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1140 (Fla. Dist. Ct. App. 2008))). Florida law requires alleged automotive defects be proven with expert evidence. See Cramer v. Ford Motor Co., Inc., No. 2007-CA-2135-NC, 2011 WL 2477232, at *1 (Fla. Cir. Ct. June 9, 2011) (granting summary judgment on FDUTPA claim where plaintiff failed to offer expert evidence of alleged automobile defect); see also Humphreys v. General Motors Corp., 839 F. Supp. 822, 826-27 (N.D. Fla. 1993) (granting summary judgment in favor of defendant where plaintiff had no expert to testify on the existence of a design defect). Plaintiff's only expert report in this case was excluded as untimely. See generally Dkt. No. 76. Because Plaintiff has no expert to support his allegation of a design defect, he has failed to present sufficient evidence to support his FDUTPA claim. Thus, Defendant GM's motion for summary judgment, dkt. no. 56, is GRANTED as to Plaintiff's FDUTPA claim.
CONCLUSION
For the foregoing reasons, GM's motion for summary judgment, dkt. no. 56, is GRANTED. With summary judgment being granted, Plaintiff's pending motion to certify class, dkt. no. 54, is DENIED as moot. There being no claims remaining in this action, the Clerk is DIRECTED to enter judgment and CLOSE this case.
SO ORDERED, this 22nd day of November, 2022.