Clemons v. Nissan North America, Inc., 997 N.E.2d 307

Clemons purchased a used 2007 Nissan Pathfinder from New York Auto Sales with about 12,800 miles for $27,690 and later experienced multiple mechanical issues.
Nissan North America, Inc. issued a written limited warranty on new vehicles, but plaintiff alleges the Pathfinder was still under Nissan’s warranty despite the dealer’s actions.
Nissan moved to dismiss in June 2012 under 2-619 alleging the dealer’s “as is” disclaimer extinguished Nissan’s warranty; the trial court granted it in July 2012.
Plaintiff argued the dealer could not displace Nissan’s warranty, and Nissan’s reliance on a nonaffiliated dealer’s disclaimer was improper.
Discovery revealed two Buyers Guide documents and a signed sales contract indicating the vehicle was sold “as is” with no warranty, though the contract language conflicted with Nissan’s warranty terms.
The appellate court reversed and remanded, holding that a third party can disclaim a manufacturer’s written warranty only under certain conditions and that the trial court failed to properly assess the warranty/agency issues and the Act’s protections.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an “as is” disclaimer by a third party can extinguish Nissan’s written warranty	Clemons argues New York Auto’s as-is clause cannot void Nissan’s written warranty.	Nissan contends the dealer’s as-is language disclaims warranties and extinguishes Nissan’s obligations.	No; third-party as-is disclaimer cannot void a manufacturer’s written warranty.
Whether Nissan’s warranty can be enforced if a third party disclaims it	Clemons asserts Nissan’s warranty remains enforceable despite dealer disclaimer.	Nissan argues the disclaimer by the dealer destroys the basis of the bargain.	Warranties cannot be disclaimed by a third party in this context; the manufacturer’s written warranty remains enforceable.
Whether the trial court properly evaluated the 2-619 motion and rule 191 requirements	Clemons argues the motion was untimely and not properly supported by affidavits.	Nissan contends the motion was proper under 2-619 and the evidence supported dismissal.	The motion was improper and not adequately supported; it should be denied or treated as appropriate.
Whether Nissan’s interpretation of the Act and UCC is correct	Clemons argues the Act prohibits disallowing a written warranty via third-party disclaimers.	Nissan contends the as-is clause can validly disclaim warranties.	The Act and UCC do not permit third-party disclaimers to void a manufacturer’s written warranty.

Basselen v. General Motors Corp., 341 Ill. App. 3d 278 (2003) (dealer disclaimer of implied warranty did not bar manufacturer’s warranty in that context (limited value))
Mitsch v. General Motors Corp., 359 Ill. App. 3d 99 (2005) (Uniform Commercial Code conspicuousness requirement for disclaimer)
Tague v. Autobarn Motors, Ltd., 394 Ill. App. 3d 268 (2009) (dealer disclaimer of implied warranties; issue of timing of warranty in play)
Mitsch v. General Motors Corp., 359 Ill. App. 3d 99 (2005) (see above)
Lytle v. Roto Lincoln Mercury & Subaru, Inc., 167 Ill. App. 3d 508 (1988) (waiver of implied warranty; dealer disclaimers not extending to manufacturer)
Priebe v. Autobarn, Ltd., 240 F.3d 584 (7th Cir. 2001) (dealer disclaimer of implied warranty under Act context)
Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288 (1988) (Act §2308 and manufacturer-implied warranty limitations)
Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313 (1999) (addresses Act vs. UCC warranty interplay)
Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828 (2004) (breach of warranties arising from express warranties)
Villanueva v. Toyota Motor Sales, U.S.A., Inc., 373 Ill. App. 3d 800 (2007) (dealer’s as-is language and warranty enforceability)