*1
FOURTH DISTRICT LATESHA CLEMONS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County NISSAN NORTH AMERICA, INC., ) No. 09L339
Defendant-Appellee. )
) Honorable ) John Schmidt, ) Judge Presiding. ____________________________________________________________________________
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.
OPINION In June 2009, plaintiff, Latesha Clemons, filed a complaint against defendant, Nissan North America, Inc. (Nissan), alleging breach of written warranty pursuant to the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (Act) (15 U.S.C. §§ 2301 to 2312 (2006)) (count I) and breach of implied warranty (count II). Nissan is an automobile manufacturer. In June 2012, Nissan filed a motion to dismiss pursuant to section 2- 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), alleging the dealer which sold the vehicle disclaimed the warranties through an "as is" clause. In July 2012, the trial court granted Nissan's motion to dismiss. Plaintiff appeals, arguing the trial court erred in granting Nissan's motion to
dismiss because the manufacturer's warranty had not been disclaimed. We reverse and remand.
¶ 3 I. BACKGROUND
¶ 4 On July 24, 2008, plaintiff purchased a used 2007 Nissan Pathfinder with 12,800 miles for $27,690 from New York Auto Sales, Inc. (New York Auto), an automobile dealership in Aurora, Illinois. Plaintiff began experiencing mechanical problems with the Pathfinder's fuel and exhaust systems and she took it to two Nissan dealerships in the St. Louis, Missouri, metropolitan area for repairs.
¶ 5 In June 2009, plaintiff filed a complaint pursuant to the Act (see 15 U.S.C. § 2310 (2006)) alleging breach of written warranty and breach of implied warranty, seeking damages for the diminution of the Pathfinder's value and attorney fees. Plaintiff filed her complaint in the Cook County circuit court. According to plaintiff, at the time of purchase defendant "issued and supplied to [plaintiff] its written warranty, which included three (3) year or thirty-six thousand (36,000) mile bumper to bumper coverage, as well as other warranties fully outlined in the Warrantor's New Vehicle Warranty booklet." Plaintiff did not attach a copy of the warranty booklet to her complaint. In August 2009, Nissan filed a motion to transfer venue arguing it maintained an
office in Springfield, Illinois, and venue was proper in Sangamon County. In December 2009, the Cook County circuit court transferred the case to the Sangamon County circuit court. A. Discovery In March 2010, the parties exchanged various discovery responses. Nissan
admitted it issued a "limited written warranty" for the Pathfinder. Plaintiff submitted several sales documents in response to defendant's request to produce. She submitted two "Buyers Guide" window forms from New York Auto. The first guide (see Appendix A) is the required *3 window form (see 16 C.F.R. § 455.2 (2012)) and contains two large headings reading "AS IS- No Warranty" and "Warranty." The box next to "Warranty" is checked. Below the "Warranty" heading, the document is marked "Limited Warranty." It states the warranty covers 50% of the costs to repair the vehicle's transmission and engine and is for one month or 1,000 miles from the date of purchase, whichever comes first. The second attached "Buyers Guide" is in a different format with New York Auto's name at the top and restates the vehicle is covered by a limited warranty as described in the first guide. This guide is signed and dated. Plaintiff attached a document appearing to be the sales contract. It is signed in plaintiff's name and contains information about her trade-in vehicle, the Pathfinder, financing, and the unpaid balance. The document contains six dark, boxed areas where we cannot read the text. Plaintiff attached seven invoices for repairs: (1) The invoice dated August 12,
2008, shows the Pathfinder had 14,389 miles and a defective exhaust shield clamp was replaced.
(2) The invoice dated October 30, 2008, shows the Pathfinder had 18,117 miles and a fuel pump was replaced. (3) The invoice dated December 16, 2008, shows the Pathfinder had 21,280 miles. It stated the mechanic took the vehicle for a test drive and it died and the fuel pressure dropped to zero. The fuel pump was replaced. (4) The invoice dated December 29, 2008, shows the Pathfinder had 21,780 miles and the voltage at the fuel pump was 9.45 volts rather than 12 volts. The battery was charged. (5) The invoice dated February 4, 2009, shows the Pathfinder had 23,289 miles and the crash zone sensor was replaced. (6) The invoice dated February 12, 2009, shows the Pathfinder had 23,761 miles and a failed air fuel sensor was replaced. (7) The invoice dated July 17, 2009, shows the Pathfinder had 30,284 miles and a defective secondary timing chain and tensioner was replaced. The February 2009 invoices were from Suntrup *4 Automotive Group in St. Louis, Missouri, and the other five invoices were from Auffenberg Nissan in O'Fallon, Illinois.
¶ 10 In December 2010, Nissan filed an answer. Nissan admitted it supplies a "written, limited warranty" at the time of distribution of a new Nissan motor vehicle. Nissan denied New York Auto was an authorized Nissan dealer. Nissan asserted three affirmative defenses, namely (1) damages should be reduced by the diminished value of plaintiff's use; (2) the alleged nonconformity, defect, or condition was rectified and repaired; and (3) damages are limited by the written, limited warranty issued by Nissan. On February 22, 2011, plaintiff disclosed her expert witness's identity and
proposed testimony. See Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007). The expert was expected to testify the Pathfinder had diminished in value by $4,085. The expert's 20-page vehicle diagnostic report was attached. The report stated the Pathfinder was experiencing emissions and fuel delivery issues "directly related" to the oxygen and fuel ratio sensors, and because the sensors are not sending correct data the vehicle's computer system "becomes confused as to how much fuel to deliver to the engine system, thus making the vehicle stall at times." B. Nissan's Motion To Dismiss On June 19, 2012, Nissan filed a motion to dismiss pursuant to section 2-619 of
the Code. The motion stated "[a]lthough Plaintiff attached only the retail installment contract to the Complaint, and has not produced the sales contract relative to the subject vehicle, [Nissan] has recently obtained a copy of the sales contract, which is attached hereto as Exhibit 2, and learned that the vehicle was actually sold to Plaintiff 'as is,' with no warranty." Nissan argued plaintiff "was informed, in bold language that New York Auto Sales was selling the vehicle with *5 no express warranty and no implied warranty of merchantability. *** Given that the vehicle was sold 'as is,' with no warranty at all as to mechanical condition, Plaintiff cannot meet her burden to prove the existence of, and her compliance with, the terms and conditions of a warranty given to her by the Defendant at the time of sale."
¶ 14 Nissan did not attach an affidavit in support of its motion. It did attach a document from New York Auto dated July 24, 2008. The document does not contain a title but lists plaintiff's personal information, trade-in vehicle, purchase vehicle, and lists the price and balanced owed. (It appears to be the same sales document plaintiff provided in March 2010 but without the darkened areas.) The document states, in bold print, "[T]his vehicle is SOLD AS IS with no warranty as to mechanical condition." The document is unsigned. C. The Hearing and the Trial Court's Order On June 29, 2012, the trial court held a hearing on Nissan's motion to dismiss.
Nissan asserted it had been provided the document from New York Auto on June 13, 2012, and accused plaintiff of failing to disclose this document during discovery although dealer documents were requested. Plaintiff responded she had disclosed the document and presented a signed version of the document to the court. The trial court asked if plaintiff could offer proof she had disclosed the document. She could not. The court asked if plaintiff signed the sales contract, and she admitted she had. Nissan argued the Pathfinder was sold "as is" by New York Auto, and the
manufacturer's warranty could not be part of the basis of the bargain. Nissan contended New York Auto had the right to extinguish any preexisting warranty rights and it did so. By selling the vehicle "as is" New York Auto "effectively eviscerated any subsequent legal obligation or *6 responsibility" Nissan had.
¶ 18 Plaintiff responded Nissan's motion was "dilatory" and tantamount to filing a motion to continue as it had been filed mere days before trial. On the merits, plaintiff distinguished Nissan's provided authority on the basis New York Auto was not affiliated with Nissan, was not its agent, and had no authority to disclaim the warranty. Plaintiff informed the trial court Nissan's expert testified at his deposition repairs were carried out on the Pathfinder under Nissan's warranty. On July 2, 2012, the trial court issued a written order. The court cited Mitsch v.
General Motors Corp.
,
"In the instant case, the defendant properly disclaimed both the express and implied warranties. The Plaintiff signed a sales contract disclaiming the vehicle was sold, 'as is with no warranty as to mechanical condition.' [Footnote: There is no dispute Plaintiff signed the sales contract.] The disclaimer language is in a larger type than the previous and subsequent type. The term 'sold as is' is in all capital letters. The Court finds that this disclaimer is in compliance with the law."
The court dismissed plaintiff's complaint. D. Plaintiff's Motion To Reconsider and the Warranty In July 2012, plaintiff filed a motion to reconsider arguing the trial court's reliance
on Mitsch was error because the Pathfinder was still covered by Nissan's warranty and it is the manufacturer, not the dealership, which is attempting to avoid its warranties. Plaintiff argued Nissan's motion did not meet the requirements of section 2-619(a)(9) of the Code (735 ILCS 5/2- 619(a)(9) (West 2012)) because it was not filed within the time for pleading and not supported by an affidavit.
¶ 22 Plaintiff attached a signed copy of the sales contract. (See Appendix B) This copy contains several dark-shaded boxes, but it is possible to read the text. The "as is" language is contained in one of these shaded boxes. Plaintiff attached the warranty documentation booklet. (See Appendix C) The
warranty states as follows: (1) "The basic coverage period is 36 months to 36,000 miles, whichever comes first"; (2) "This warranty is provided to the original and subsequent owner(s) of a Nissan vehicle originally distributed by Nissan which is originally sold by a Nissan authorized Nissan dealership in the United States and which is registered in the U.S. and normally operated in the United States"; and (3) "This warranty is generally transferable from the original 'owner other than a Nissan dealer' (OWNER) to subsequent owners of the vehicle at any time ownership of the vehicle is transferred, without any action on your part" except when the vehicle is registered outside of the United States within six months of purchase. The warranty states it is void if the vehicle is issued a salvage title, including flood title, or is a total loss, such as the cost of repairs exceeded the actual cash value of the vehicle. The warranty does not include language about how the vehicle warranty can be disclaimed. In September 2012, after a hearing, the trial court denied the motion to reconsider. This appeal followed.
¶ 26 II. ANALYSIS Plaintiff appeals, arguing the trial court erred in granting defendant's motion to
dismiss. Plaintiff contends defendant did not disclaim its manufacturer's warranty, New York Auto could not disclaim the warranty, and the disclaimer in the sales contract relates only to New York Auto's obligations. A. Standard of Review Section 2-619 of the Code provides a defendant may file a motion for dismissal on
nine different enumerated grounds, including "[t]hat the claim asserted against defendant is
barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS
5/2-619(a)(9) (West 2012). "Section 2-619(a)'s purpose is to provide litigants with a method of
disposing of issues of law and easily proved issues of fact—
relating to the affirmative
matter
—early in the litigation." (Emphasis in original.)
Reynolds v. Jimmy John's Enterprises,
LLC
,
Heidelberger
,
¶ 30 B. Nissan's Section 2-619 Motion As a threshold matter, we note Nissan's section 2-619 motion presents two
important procedural problems, namely, its untimeliness and defendant's failure to comply with Illinois Supreme Court Rule 191 (eff. July 1, 2002). Plaintiff made these arguments before the trial court at the motion hearing and in her motion to reconsider, but here proceeds directly to the merits. In its brief, Nissan suggests, by way of a footnote, plaintiff did not disclose the sales contract because of the "as is" clause and it was plaintiff's "own inexcusable failure to produce the sales contract in the face of an explicit request that caused resolution of this issue to be delayed until shortly before trial." In order to assist the bench and the bar and encourage better motion practice, we briefly address these procedural problems. 1. The Motion's Timeliness Because a section 2-619 motion admits the legal sufficiency of the complaint,
filing such a motion after filing an answer, without requesting leave to withdraw the answer, is
procedurally improper.
Gulley v. Noy
,
filed an answer in December 2010. The parties engaged in discovery for approximately a year
and a half, including procuring an expert witness. Then, in June 2012, approximately 20 days
before trial, Nissan filed its section 2-619 motion without moving to withdraw its answer. The
motion was untimely and procedurally improper. The trial court never considered whether the
motion conflicted with Nissan's admissions and answer, nor whether it should have been treated
as a summary judgment motion pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005
(West 2010)). See
Reynolds
,
the burden of proof on the motion, and the concomitant burden of going forward.' "
Reynolds
,
Strict compliance with Rule 191(a) is required to insure the trial court is presented with valid
evidentiary facts on which to base a decision.
Id.
at 336,
affirmative matter. Nissan asserts the "as is" clause affixed by New York Auto, an unaffiliated car lot, affirmatively bars plaintiff's warranty claim because the disclaimer "eviscerated" its obligations to plaintiff. As the "as is" clause was not apparent from the complaint, Nissan was required to support its motion by affidavit. Nissan submitted the purported sales contract—an unsigned version nonetheless—without an affidavit authenticating the document or providing a foundation. (In her reply brief, plaintiff argues Nissan has not provided any foundation to rely on the sales contract.) Rather than complying with Rule 191(a), Nissan relied on its bare representations the document was what Nissan purported it to be. Then, at the motion hearing, Nissan accused plaintiff of not producing the document during discovery. The trial court inquired whether this was correct and plaintiff stated it had been disclosed but she did not provide any documentary proof. Plaintiff then retrieved a signed copy of the sales contract and *12 presented it to the court. The court then inquired whether this had been produced; again plaintiff did not provide proof. The court asked whether plaintiff had indeed signed the sales contract and she admitted she had. The court's questioning shifted the burden of proof from Nissan to plaintiff. Before the questioning, Nissan had not authenticated the document or shown plaintiff even signed it. Absent plaintiff's admission she signed the sales contract, defendant would not be able to carry its burden on the motion and it should have been denied. We note if Nissan sought to accuse plaintiff of failing to comply with discovery it
should have done so pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002). This would have given the parties and the trial court an opportunity to properly determine whether the document was disclosed, rather than conducting an impromptu hearing within the motion to dismiss hearing. Our review of the record indicates plaintiff supplied a copy of the sales contract in March 2010 as part of her response to Nissan's production request. This copy in the record (photocopied an unknown number of times) contains dark areas which we cannot read, whereas the copy plaintiff attached to her motion to reconsider contains the dark areas, but it is possible to read the text (the "as is" language being in such a darker area). If Nissan was not able to read the March 2010 copy, it should have requested a clearer copy. C. The Warranty Claim While plaintiff's underlying warranty claim is pursuant to the Act (15 U.S.C. §§
2301 to 2312 (2006)), we must keep in mind the Uniform Commercial Code (UCC) (810 ILCS
5/1-101 to 13-103 (West 2010)) governs sales of goods, including warranties. Written warranties
provided with consumer goods must be examined under the requirements of both the Act and the
UCC.
Sorce v. Naperville Jeep Eagle, Inc.
,
warrantor failing to comply with the Act or the terms of a written warranty. 15 U.S.C. § 2310(d) (2006). An automobile is a "consumer product" covered by the Act. 16 C.F.R. § 700.1(a) (2012). A "warrantor" is "any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty." 15 U.S.C. § 2301(5) (2006).
Under the Act, a "written warranty" is:
"(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking." 15 U.S.C. § 2301(6)(A), (B) (2006).
See 16 C.F.R. § 700.3 (2012) (interpreting definition). Under the Act, a written warranty must include a conspicuous designation as a full warranty or a limited warranty. 15 U.S.C. § 2303(a) (2006); 16 C.F.R. § 700.6 (2012) ("Warrantors may include a statement of duration in a limited *14 warranty designation."). Where the warrantor makes a written warranty to the consumer, an implied warranty may not be disclaimed or modified but may be limited in duration to the duration of the written warranty. 15 U.S.C. § 2308(a), (b) (2006). A disclaimer of an implied warranty in violation of the Act is ineffective for state law purposes. 15 U.S.C. § 2308(c) (2006).
See generally 15 U.S.C. § 2310(c)(2) (West 2006) (defining "deceptive warranty"). 2. The Uniform Commercial Code Under section 2-313(1)(a) of the UCC "[a]ny affirmation of fact or promise made
by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation or promise." 810
ILCS 5/2-313(1)(a) (West 2010); see also
Mydlach v. DaimlerChrysler Corp.
,
"In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller's obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming 'all warranties, express or implied' cannot reduce the seller's obligation with respect to such description and therefore *15 cannot be given literal effect under Section 2-316.
This is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish.
But in determining what they have agreed upon good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation." 810 ILCS Ann. 5/2-313, Uniform Commercial Code Comment 4 (Smith-Hurd 2009). Section 2-316 of the UCC restricts the exclusion or modification of warranties.
810 ILCS 5/2-316 (West 2010). Under section 2-316(1) of the UCC, a warranty disclaimer inconsistent with an express warranty is inoperative. 810 ILCS 5/2-316(1) (West 2010). Section 2-316(3) permits disclaimers of implied warranties by expressions like "as is" or other language which "makes plain that there is no implied warranty." (Emphasis added.) 810 ILCS 5/2-316(3)(a) (West 2010). Written disclaimers to "exclude or modify the implied warranty of merchantability" must mention merchantability and "be conspicuous." 810 ILCS 5/2-316(2) (West 2010); see 810 ILCS 5/1-201(b)(10) (West 2010) (defining "conspicuous"). Comment 1 to section 2-316 explains:
"This section is designed principally to deal with those frequent clauses in sales contracts which seek to exclude 'all warranties, express or implied.' It seeks to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty and *16 permitting the exclusion of implied warranties only by conspicuous language or other circumstances which protect the buyer from surprise." 810 ILCS Ann. 5/2-316, Uniform Commercial Code Comment 1 (Smith-Hurd 2009).
¶ 46 3. The Parties' Arguments Nissan asserts it is "well-settled Illinois law that when a vehicle is sold 'as is,' all
applicable warranties are effectively disclaimed and the purchaser is precluded from maintaining a subsequent claim for breach of warranty" and plaintiff's "argument that this ['as is'] language was somehow limited to warranties offered only by New York Auto Sales is not well-founded." In other words, Nissan's position is a third party can disclaim a manufacturer's written warranty through an "as is" clause in a sales contract. Nissan cites six cases in support but has not provided a single case where a third
party disclaimed a manufacturer's written warranty.
In
Basselen v. General Motors Corp.
,
(2003), the plaintiffs purchased a new Chevrolet van with a 3-year or 36,000-mile warranty
provided by General Motors.
Id.
at 281,
Before trial, the trial court granted summary judgment against the dealer on an express warranty
claim and the case proceeded to trial where a jury returned a verdict against General Motors on
the breach of express and implied warranty claims.
Id.
at 280,
Basselen
,
712 (2009), the plaintiff purchased a used 2001 Ford Mustang where the sales contract contained
a disclaimer of warranties and indicated the vehicle was sold "as is." At the time of purchase, the
Mustang was still covered by Ford's limited warranty, which provided "bumper-to-bumper
coverage" for 3 years or 36,000 miles, whichever occurred earlier.
Id.
at 271,
GMC Yukon from an authorized GMC dealership.
Mitsch,
merchantability."
Id.
at 105,
cited by defendant. See
Lytle v. Roto Lincoln Mercury & Subaru, Inc.
,
Autobarn, Ltd.
,
Simmons
,
it, or a third party, disclaimed its written warranty. See Rothe v. Maloney Cadillac, Inc ., 119 Ill.
2d 288, 290-94,
13, 1999) (denying the manufacturer's motion for summary judgment with respect to its written warranty because an issue of material fact existed whether the manufacturer had remedied the defects within a reasonable period of time and number of attempts). Plaintiff points out the manufacturer in Basselen was held liable on its written warranty despite the dealer disclaiming its implied warranties. Basselen is of limited value as it did not address the verdict against the manufacturer. 4. The Warranties Here Nissan admitted it provided a written warranty for 3 years or 36,000 miles,
whichever came first. The warranty states it covers "any repairs needed to correct defects in materials or workmanship." Nissan has not asserted the written warranty has expired by its own terms, as in Tague or Mitsch , the warranty was voided pursuant to its terms, such as a salvaged or flood title, or does not cover the repairs made. The evidence in the light most favorable to plaintiff reflects Nissan is the warrantor, it supplied the written warranty for the Pathfinder, and the warranty was effective under its own terms. There are several problems with Nissan's position a third party can disclaim the
written warranty through an "as is" clause contained in a sales contract. We must be careful to
distinguish between the two potential warrantors—New York Auto and Nissan—and the two
types of potential warranties—express and implied. We need not resolve whether an agency
relationship existed between Nissan and New York Auto, and if New York Auto had authority to
disclaim Nissan's warranty. These are normally factual questions.
Ioerger v. Halverson
*20
Construction Co.,
Taken in the light most favorable to plaintiff, there can be little dispute Nissan's warranty is a
written warranty under the Act. See 15 U.S.C. § 2301(6)(A), (B) ( 2006). Nissan asserts an
owner may terminate Nissan's warranty obligations if the owner so chooses. However, according
to the terms of the warranty, it is provided "to the original and subsequent owner(s)" and is
"generally transferable" to "subsequent owners of the vehicle at any time ownership of the
vehicle is transferred." Federal regulation requires a written warranty to "clearly and
conspicuously disclose in a single document in simple and readily understood language *** [t]he
identity of the party or parties to whom the written warranty is extended, if the enforceability of
the written warranty is limited to the original consumer purchaser or is otherwise limited to
persons other than every consumer owner during the term of the warranty." 16 C.F.R. § 701.3(a)
(2012). Nissan's warranty contains no provision restricting enforcement of the warranty to less
than "every consumer owner during the term of the warranty" or stating an owner can disclaim
the warranty for subsequent owners. We decline to read such provisions into Nissan's warranty
and read the warranty according to its terms as being extended to and enforceable by all
subsequent owners. Regardless of whether Nissan's repair warranty is an "express warranty" as
defined by the UCC or a promise to repair (
Mydlach
,
single case supporting its position a third party can disclaim a manufacturer's written warranty
through "as is" language contained in a sales contract. The provided cases address waiver of an
implied
warranty, not an
express
warranty or promise, and do not address a third-party
disclaimer. Nissan is correct Illinois law supports waiver of an
implied
warranty through an "as
is" clause. We find no support for Nissan's position a third party's "as is" clause voids a
manufacturer's written warranty. Nissan's position would be in invitation for automobile
manufacturers to engage in misleading warranty claims and do an end run around the Act. See
Mydlach
,
manufacturer's warranty does not answer whether the third party did disclaim the warranty. At the time of purchase, New York Auto provided plaintiff with a one-month written warranty on the Pathfinder's engine and transmission. The sales contract's language "This vehicle SOLD AS IS with no warranty as to mechanical condition" is inconsistent with New York Auto's warranty.
The "as is" clause would be "inoperative" because it is inconsistent and negates the express warranty. See 810 ILCS 5/2-316(1) (West 2010). In sum, Nissan's argument not only requires us to twist the Act and UCC to permit a third party to do what a manufacturer could not, it also requires a finding the disclaimer is ineffective against New York Auto but is nevertheless effective for Nissan. The trial court only analyzed whether the "as is" clause was conspicuous and did
not consider whether it was effective under the Act and UCC, it applied to express warranties or
promises to repair, or it conflicted with other representations made by New York Auto. The
plain language of section 2-316(2) states the conspicuousness requirement applies to disclaimers
of
implied
warranties and says nothing of express warranties or promises. 810 ILCS 5/2-316(2)
(West 2010). It is unclear if the court failed to draw this distinction or assumed defendant had
not made a repair warranty—which would require construing the pleadings in the light most
favorable to Nissan. Moreover, the trial court found
Nissan
effectively disclaimed its warranty,
whereas the undisputed facts reflect a third party attempted to disclaim the warranty. The trial
court dismissed both of plaintiff's counts. This was error and plaintiff's two counts must be
reinstated. See
Sorce
,
proceedings. *24 Reversed and remanded.
Appendix C (Case No. 4-12-0943) 4 2007 NEW VEHICLE LIMITED WARRANTY
“WHAT IS NOT COVERED.” by Nissan, except for those listed elsewhere under the caption [1] WHO IS THE WARRANTOR warrants all parts of your 2007 Nissan vehicle supplied This warranty is provided to the original and subsequent ! This warranty is generally transferable from the original Nissan indicates Nissan North America, Inc., P.O. Box 685003, Franklin, TN 37068-5003 which distributes Nissan vehicles in the United States. Your Nissan vehicle is manufactured to meet U.S. APPLICABILITY Nissan ! [1] [2] ! See the Owner’s Manual for information relevant to proper operation of the vehicle, including the recommended fuels and fl uids. U.S. territories or Canada for a period not exceeding sixty (60) the vehicle is transferred, without any action on your part; (specifi cally Guam, Saipan, American Samoa, Puerto Rico ‘owner other than a Nissan dealer’ (OWNER) to subsequent owners of the vehicle at any time ownership of and the U.S. Virgin Islands), and Canada. which is originally sold by a Nissan authorized Nissan (including Alaska and Hawaii), the United States territories in the U.S. and normally operated in the United States owner(s) of a Nissan vehicle originally distributed by Nissan dealership in the United States, and which is registered the original OWNER, and (2) the vehicle is registered exception of privately owned vehicles belonging to members of the U.S. military or employees and offi cers outside of the United States. OWNER: (1) ownership of the vehicle is transferred from void if during the fi rst six months after delivery to the original warranty does not apply if an otherwise covered vehicle is operated in, or relocated to, a country other than those regulations and environmental requirements. With the listed above under this caption, except that it continues its proper use as described in the applicable OWNER’S to apply if the vehicle is operated in full compliance with MANUAL while touring outside of the United States, the [2] of the United States Government stationed abroad, this except that this warranty is not transferable but is instead Subject to the transferability restriction described above, this consecutive days or sixty (60) days in any one 12 month period. a 703 compliant or similar process before fi ling suit. Please refer AUTO LINE if you seek remedies created by state law, including your state's lemon law, if applicable state law provides for using for additional information. Warranty Information Booklet & 2007 Nissan Owner's Manual" by Title I of that Federal law, but are required to fi rst use BBB Moss Warranty Act, 15 U.S.C. §2301, et. seq. You are not required to fi rst use BBB AUTO LINE if you seek remedies not created to pp. 2-3 of this booklet and the "Supplement to 2007 Nissan Nissan makes available to you, and you are specifi cally required exercising rights or seeking remedies under the Federal Magnuson- by Federal Law to use BBB AUTO LINE [(800) 955-5100] before NESS FOR A PARTICULAR PURPOSE SHALL BE LIMITED RANTY TERMS AND STATE LAW RIGHTS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FIT- EXTRA EXPENSES - LIMITATIONS OF DAMAGES LIMITATION OF WARRANTIES AND OTHER WAR- venience or commercial loss. damages such as loss of the use of the vehicle, incon- warranty, obligation or liability in connection with this vehicle. Nissan does not authorize any person to create for it any other warranty lasts, so the above limitations or exclusions may not you may also have other rights which vary from state to state. TO THE DURATION OF THIS WRITTEN WARRANTY. This warranty does not cover incidental or consequential Some states do not allow the exclusion or limitation of incidental or consequential damages or limitations on how long an implied apply to you. This warranty gives you specifi c legal rights, and warranty applies to a relocated vehicle which is returned to, vehicle’s foreign operation, e.g., use of inappropriate fuels or other fl uids. the U.S. territories or Canada, except for conditions due to the and is registered and normally operated in the United States, The warranty period begins on the date the vehicle is delivered THE WARRANTY BEGINS FOR HOW LONG AND WHAT IS to the fi rst retail buyer or put into use, whichever is earlier. COVERED ! BASIC COVERAGE ! POWERTRAIN COVERAGE • The basic coverage period is 36 months or 36,000 • This warranty covers any repairs needed to correct • Bedliners will be repaired to commercially acceptable • This warranty covers any repairs needed to correct • Powertrain coverage applies to components listed below, • The Powertrain coverage period is 60 months or 60,000 fl ywheel, seals, and gaskets. TRANSMISSION AND TRANSAXLE injectors, intake and exhaust manifolds and supercharger, ENGINE and tensioner, oil pump, water pump and fuel pump, fuel Cylinder heads and block and all internal parts, rocker covers and oil pan, valve train and front cover, timing chain housing, automatic transmission control module, transfer Case and all internal parts, torque converter and converter in "WHAT IS NOT COVERED." standards subject to the conditions and limitations listed components of each new Nissan vehicle supplied by Nissan except for the exclusions or items listed under the caption “WHAT IS NOT COVERED” or, if the part is covered by one of the separate coverages described defects in materials or workmanship of all parts and miles, whichever comes fi rst. in the following sections of this warranty, that specifi c coverage applies instead of the basic coverage. supplied by Nissan except for those items listed under the caption “WHAT IS NOT COVERED”. defects in materials or workmanship. miles, whichever comes fi rst. 57052 Booklet text pages.indd 4 57052 Booklet text pages.indd 4 8/30/06 3:34:10 PM 8/30/06 3:34:10 PM 5 2007 NEW VEHICLE LIMITED WARRANTY ! ADJUSTMENT COVERAGE case and all internal parts, seals and gaskets, clutch cover fuel and fl uids), or the vehicle’s lack of compliance with local
d Service adjustments not usually associated with the and housing, and electronic transmission controls. regulations or environmental requirements of any country replacement of parts, such as wheel alignment, are (other than the U.S., the listed U.S. territories or Canada) DRIVETRAIN covered only during the fi rst 12 months or 12,000 are not covered by this warranty. Drive shafts, fi nal drive housing and all internal parts, miles, whichever comes fi rst. propeller shafts, universal joints, bearings, seals and ! REFRIGERANT RECHARGE ONLY COVERAGE gaskets. MAINTENANCE AND RECORDS Refrigerant recharge not associated with the repair or As a condition of this warranty, you are responsible for properly RESTRAINT SYSTEM replacement of a warranted part is covered only during using, maintaining and caring for your vehicle as outlined Air bags and related electronic control systems. the fi rst 12 months, regardless of the mileage. in your OWNER’S MANUAL and your NISSAN SERVICE ! CORROSION COVERAGE (PERFORATION FROM NO CHARGE & MAINTENANCE GUIDE, and maintaining copies of all CORROSION) maintenance records & receipts for review by Nissan. Failure Warranty repairs will be made at no charge for parts and/or Any body sheet metal panel supplied by Nissan found to to do so is likely to result in the denial of warranty coverage. labor (except for batteries and tires, in which case you may pay have developed perforation (rust-through) due to corro- certain charges as noted above or as described in the applicable Evidence of the performance of the required maintenance sion in normal use is covered for 60 months, regardless tire warranty found later in this booklet). Any needed parts should be kept and presented as proof of such maintenance of mileage, except for those items listed under “WHAT IS replacement will be made using genuine Nissan or in connection with related warranty repairs. To assist you in NOT COVERED”. No additional rust proofi ng applications Nissan approved new or remanufactured parts. maintaining appropriate records, the maintenance log located are required. Perforation is a condition in which any body in your NISSAN SERVICE & MAINTENANCE GUIDE can be sheet metal panel has corroded from one surface through used along with supporting repair invoices, receipts and other OBTAINING WARRANTY SERVICE such records. to another. ! You must take the vehicle to an authorized Nissan dealer ! ORIGINAL EQUIPMENT BATTERY COVERAGE in the United States or Canada during regular business (Continued on page 6) The coverage period is 36 months or 36,000 miles, hours at your expense in order to obtain warranty service. whichever comes fi rst. A defective original equipment battery The names and addresses of authorized Nissan dealers (See following page for which is unserviceable within the fi rst 12 months and 36,000 are listed in telephone directories. miles will be replaced free of charge. After 12 months but ! If you require warranty service outside of the United States "WHAT IS NOT COVERED." ) within 24 months and 36,000 miles, you will pay 50% of (see terms under caption “APPLICABILITY”), contact the replacement battery’s suggested retail price plus any an authorized Nissan dealer in that country. Note that applicable taxes. After 24 months but within 36 months complaints related to failure to comply with proper use and 36,000 miles, you will pay 75% of the replacement of the vehicle as described in the applicable OWNER’S battery’s suggested retail price plus any applicable taxes. MANUAL (including the lack of availability or use of proper Nissan will pay the rest, including all labor to remove and replace the defective battery. ! TOWING COVERAGE If your vehicle is inoperative due to the failure of a warranted part, towing service to the nearest authorized Nissan dealer is covered for 36 months or 36,000 miles, whichever comes fi rst. 57052 Booklet text pages.indd 5 57052 Booklet text pages.indd 5 8/30/06 3:34:11 PM 8/30/06 3:34:11 PM *28 6 2007 NEW VEHICLE LIMITED WARRANTY ! The items listed below are not covered under corrosion (See following pages for separate warranties which may apply
WHAT IS NOT COVERED E to your Nissan, such as those covering vehicle emissions, seat belts, and tires.) coverage (perforation from corrosion). DAMAGE, FAILURES OR CORROSION DUE TO • Exhaust system components. ACCIDENTS, MISUSE OR ALTERATIONS • Corrosion of outer trim parts, such as moldings. This warranty does not cover damage, failures or corrosion a However, corrosion of outer trim parts is warranted for resulting from: 12 months or 12,500 miles, whichever comes fi rst. ! Accident, theft, fi re, driving through water (including engine T • Corrosion other than perforation, such as cosmetic water ingestion) or misuse, which includes racing of any d or surface corrosion due to defects in materials sort whatsoever (Proper use is outlined in your OWNER’S or workmanship. This is covered under the Basic c MANUAL). Coverage of the New Vehicle Limited Warranty. ! Alteration, tampering or improper repair. • Special bodies or equipment not manufactured or ! Installation of non-Nissan approved accessories or supplied by Nissan. components. DAMAGE, FAILURES OR CORROSION DUE TO LACK C ! Improper installation of any Nissan approved or aftermarket OF OR IMPROPER MAINTENANCE accessory or component. This warranty does not cover damage, failures or corrosion ! Glass breakage, unless resulting from defects in material resulting from: or workmanship. ! Lack of performance of proper maintenance services as W ! Normal wear and tear, including dings, dents, chips or outlined in your NISSAN SERVICE & MAINTENANCE scratches. H GUIDE. ALTERED OR UNCERTAIN ODOMETER MILEAGE ! Use of improper or dirty fuel, fl uids or lubricants. ! Use of parts not equivalent in quality or design to parts T This warranty does not cover repair of any vehicle or any part o of a vehicle of which the odometer mileage has been altered, supplied by Nissan. d or the odometer repaired or replaced and the actual vehicle MAINTENANCE SERVICE EXPENSE mileage cannot be correctly and readily determined. This warranty does not cover normal maintenance services d SALVAGE TITLE as specifi ed in your NISSAN SERVICE & MAINTENANCE a This limited warranty does not apply to any vehicle, and is GUIDE such as engine tune-up; cleaning and polishing; wheel rendered void if the vehicle is (or ever has been) issued a alignment; headlight aiming; replacement of fi lters, replacement w “salvage” or similar title under any state’s law; or has ever been of windshield wiper inserts, replacement of key fob batteries, determined to be a “total loss” or equivalent by any insurance lubricants, coolant; worn brake shoes, pads, drums and rotors E company, such as by payment of a cash payment of claim in lieu and worn clutch discs. of repairs because of a determination that the cost of repairs SEAT BELTS, TIRES, DROP-IN BEDLINERS AND exceeded the actual cash value of the vehicle. T EMISSION CONTROL SYSTEM Seat belts, tires, drop-in bedliners and the emission control DAMAGE, FAILURES OR CORROSION FROM system are not covered by this warranty, but are covered by ENVIRONMENTAL CONDITIONS separate warranties. This warranty does not cover damage, failures or corrosion NISSAN SPRAY-IN BEDLINERS resulting from: Nissan Spray-in Bedliners will be repaired to commercially ! Stone chipping, chemical fallout (acid rain), tree sap, salt, acceptable standards which may include minor appearance hail, wind-storm, lightning, fl ood or other environmental differences from the original bedliner. conditions. 57052 Booklet text pages.indd 6 57052 Booklet text pages.indd 6 8/30/06 3:34:11 PM 8/30/06 3:34:11 PM