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Rothe v. Maloney Cadillac





Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.


Rehearing denied May 13, 1986.

Plaintiff appeals the dismissal with prejudice of counts III, IV and V of his six-count complaint against Maloney Cadillac, Inc. (Maloney), a Cadillac dealer, and Cadillac Motor Car Division, and General Motors Corporation (sometimes collectively General Motors), the manufacturer, based on alleged breaches of implied warranties. The issues presented include whether: (1) the doctrine of privity bars plaintiff's action against General Motors; (2) Maloney can disclaim liability under a breach of implied warranty theory; and (3) plaintiff should have been allowed to replead the implied warranty counts against Maloney and General Motors.

In May of 1982 plaintiff purchased a 1982 Cadillac Sedan DeVille from Maloney. The automobile was alleged to have been equipped with an "improper crankshaft causing excessive vibrations and improper operation on the road; * * * [and] the engine * * * was defective in materials and workmanship causing improper acceleration * * *." Plaintiff brought the automobile to Maloney for repair but the defects were never corrected. In January of 1984, plaintiff sent a letter to Maloney purporting to revoke acceptance of the automobile.

Counts I and II of the complaint, based upon breach of an express warranty given by General Motors, were allowed to stand. Count VI premised on the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 261 et seq.), was stricken with leave to file an amended pleading. These counts are not subject to this appeal. At issue here are counts III, IV and V which the circuit court dismissed with prejudice. *fn1 Counts III and V, against General Motors and Maloney respectively, allege breaches of an implied warranty of fitness for ordinary purposes under the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (Magnuson-Moss) (15 U.S.C. § 2310(d)(1) (1982).) Count IV alleges that General Motors and Maloney breached implied warranties of both merchantability and fitness for a particular purpose under the Uniform Commercial Code (UCC). (Ill. Rev. Stat. 1983, ch. 26, pars. 2-314, 2-315.) Claimed damages were confined to economic loss and costs of the action.

• 1 In reviewing the dismissal, we must accept as true all well-pleaded facts and reasonable inferences flowing therefrom, and must also consider whether, as a matter of law, the dismissed counts stated causes of action. Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 54, 391 N.E.2d 479.


We raise, of our own motion, a problem which appears to be recurring with undesirable frequency. Both defendants in this case, General Motors and Maloney, have filed what purport to be combined sections 2-615 and 2-619 motions. (Ill. Rev. Stat. 1983, ch. 110, pars. 2-615, 2-619.) No effort is made in either to apply the specific motion to specific portions of the complaint, nor to otherwise delineate their intended application. This approach to motion practice creates a hybrid motion which disregards the differences in theory and application each motion possesses and the potential prejudice which may result from the continued utilization of such a combined motion procedure (MBL (USA) Corp. v. Diekman (1985), 137 Ill. App.3d 238, 484 N.E.2d 371) and constitutes a practice which our supreme court has expressly disapproved (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605). Moreover, this court has recently held that "where prejudice results from such an improper motion practice, we will reverse without addressing the merits of the motion as argued on appeal." (Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App.3d 190, 200, 478 N.E.2d 888.) It is the responsibility of court and counsel to discourage and refrain from such practice. In this instance, we elect to consider the merits of the case in the absence of patent prejudice.


• 2 The susceptibility of General Motors, the manufacturer of plaintiff's automobile with which plaintiff did not deal directly, to liability for breach of implied warranties under either Magnuson-Moss *fn2 or the UCC depends upon the viability of the doctrine of privity of contract in this State. General Motors maintains that lack of contractual privity bars plaintiff's actions against it.

The concept of privity is one which has undergone considerable change in recent years since Rotche v. Buick Motor Co. (1934), 358 Ill. 507, 193 N.E. 529, recognized the right of a "remote" purchaser to sue the manufacturer of an automobile purchased through a dealer for personal injuries sustained. It has been abolished by our supreme court more recently in a variety of other contexts (see Tiffin v. Great Atlantic & Pacific Tea Co. (1959), 18 Ill.2d 48, 162 N.E.2d 406 (action for personal injury resulting from tainted food against manufacturer not barred by lack of privity); Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 618-19, 210 N.E.2d 182 (Suvada) (privity not required in actions for personal injuries and property damage resulting from defective truck brake system); Rozny v. Marnul (1969), 43 Ill.2d 54, 62, 250 N.E.2d 656 (Rozny) (in tort action by purchaser of house against remote surveyor for inaccurate plat of survey lack of privity is not a defense); Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 558, 309 N.E.2d 550 (in action against manufacturer for breach of implied warranty involving birth control device privity is not required); Redarowicz v. Ohlendorf (1982), 92 Ill.2d 171, 183, 441 N.E.2d 324 (Redarowicz) (lack of privity does not bar action by subsequent purchaser against home builder for breach of implied warranty of habitability)). This erosion of the doctrine of privity has been based n considerations of public policies such as protecting consumers from imminently dangerous, unsafe goods or latently defective products or dwellings and assigning the resultant losses to the parties placing them in commerce. The erosion is also attributable to our supreme court's analytical approach in establishing the scope of tort liability to third persons, exemplified by its statement in Rozny v. Marnul (1969), 43 Ill.2d 54, 62, 250 N.E.2d 656:

"[W]e emphasize that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity."

Although the supreme court in Suvada approved as part of plaintiffs' damages the costs they incurred in repairing their tractor-trailer unit, and the appellate court has sometimes recognized property damage claims due to defectively manufactured products by remote users who purchased the products through third parties (e.g., Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc. (1965), 68 Ill. App.2d 297, 216 N.E.2d 282 (defectively manufactured air conditioners); Rhodes Pharmacal Co. v. Continental Can Co. (1966), 72 Ill. App.2d 362, 219 N.E.2d 726 (defectively manufactured aerosol cans), in other cases of economic loss based upon breach of implied warranty, however, our appellate courts have maintained the privity requirement (Bagel v. American Honda Motor Co. (1985), 132 Ill. App.3d 82, 88, 477 N.E.2d 54; Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App.3d 897, 899-900, 466 N.E.2d 1040). General Motors relies heavily on this court's recent decision in Szajna v. General Motors Corp. (1985), 130 Ill. App.3d 173, 176-77, 474 N.E.2d 397, appeal allowed (1985), 106 Ill.2d 560, which echoes this requirement. These cases, however, did not consider public policy ramifications in retaining the privity requirement. We do so here, and follow the rationale of our supreme court in Redarowicz and that of decisions from sister jurisdictions which reject the privity requirement in cases such as this.

In Redarowicz, our supreme court extended an implied warranty of habitability from builder-realtor to subsequent purchasers, noting that the original and subsequent purchasers of homes have little opportunity to inspect the construction methods used in building a home; are not knowledgeable in construction practices; and must substantially rely upon the expertise of the builder. (Redarowicz v. Ohlendorf (1982), 92 Ill.2d 171, 183, 441 N.E.2d 324.) The warranty recognized in that case was developed to protect purchasers upon discovery of latent defects which manifest themselves within a reasonable time in new homes and was extended to subsequent purchasers for the foregoing reasons. Here, the purchaser of a new automobile has as little or, perhaps, less knowledge of the object purchased than one who purchases a home. Certainly, a purchaser's knowledge of the use or capacity of the crankshaft installed in ...

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