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03/14/88 Dorothy Lytle, v. Roto Lincoln Mercury &

March 14, 1988

DOROTHY LYTLE, PLAINTIFF-APPELLANT

v.

ROTO LINCOLN MERCURY & SUBARU, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 201, 167 Ill. App. 3d 508, 118 Ill. Dec. 133 1988.IL.354

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Dorothy Lytle, filed a multicount complaint in the circuit court of Du Page County seeking revocation of a sales contract and monetary damages. Plaintiff's complaint named as defendants Roto Lincoln Mercury & Subaru, Inc., Subaru of America, Inc. , Fuji Heavy Industries, Ltd., and Subaru Mid-America, Inc. Fuji Heavy Industries, Ltd., and Subaru of America, Inc., were voluntarily nonsuited and are not parties to this appeal. On October 17, 1986, the circuit court granted summary judgment in favor of Subaru of Mid-America, Inc., which plaintiff has not appealed. On April 20, 1987, the circuit court granted summary judgment in favor of the only remaining defendant, Roto Lincoln-Mercury/Subaru, Inc. (hereinafter defendant), which plaintiff now appeals.

The issues raised by this appeal are: (1) whether defendant adopted the written warranty of the manufacturer; (2) whether defendant provided a written warranty under section 2301(6)of the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C. § 2301(6)(1982)); (3) whether defendant's written disclaimer of the implied warranties of merchantability and fitness for a particular purpose is conspicuous within the meaning of section 2-316(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 2-316(2)); (4) whether plaintiff should have received an evidentiary hearing on the question of the unconscionability of defendant's disclaimer; and (5) whether plaintiff stated a separate and cognizable claim for revocation under section 2-608 of the UCC.

Plaintiff purchased a new Subaru automobile from defendant, a new car dealer, in May 1984 for $11,156.18. Prior to delivery of the automobile to plaintiff, defendant completed a "New Car Get Ready" form which states that it prepared the automobile for delivery. The form does not indicate what specific procedures, if any, were performed in preparing the automobile for delivery, other than that a "Rusty Jones" treatment was provided.

Additionally, defendant presented plaintiff with a booklet which had on the cover the words "Subaru" and "1984 Warranty and Service Booklet." The inside of the front cover of the booklet contained in bold print at the top "THIS IS YOUR SUBARU WARRANTY AND SERVICE BOOKLET." Immediately below that language are the words "issued to" followed by plaintiff's name, address, and signature. Directly below that are the words "issued by" followed by defendant's business name, address and authorized signature. At the bottom of the same page in larger, bold print is the following:

"PLEASE KEEP THIS BOOKLET IN YOUR CAR AT ALL TIMES AND MAKE IT AVAILABLE TO YOUR SUBARU DEALER IF WARRANTY SERVICE IS NEEDED. BE CERTAIN TO HAVE THE RECORD OF INSPECTION AND MAINTENANCE SERVICES CONTAINED IN THIS BOOKLET VALIDATED BY YOUR SUBARU DEALER OR OTHER SERVICE FACILITY WHO PERFORMS THOSE SERVICES."

Finally, on page four of the booklet, under a section entitled "WHO MAKES THIS WARRANTY," are the words "This warranty is made by Subaru of America, Inc. " followed by the address of SOA.

Plaintiff also signed a purchase order which contained language purporting to disclaim any implied warranties of merchantability and fitness for a particular purpose. (See Appendix A.) The disclaimer was located in the lower right hand corner of the front side of the purchase order, directly above the buyer's signature line.

Approximately four to five months after the purchase of her new automobile, plaintiff apparently noticed a "clicking noise" in the dash and took her automobile to defendant for an inspection and any needed repairs. It was eventually determined, after several service trips in which the automobile was kept for periods up to nine weeks, that the problem was a faulty transmission. Defendant eventually replaced the transmission, but plaintiff refused to accept the automobile. After writing letters to defendant, and the other parties below, seeking replacement of her automobile, plaintiff filed suit.

In the two counts of the complaint against defendant plaintiff alleged in count I that defendant was liable under both Illinois law and Magnuson-Moss pursuant to a written warranty offered by it to plaintiff when she purchased her new automobile. In count II, plaintiff alleged an implied warranty of merchantability under UCC section 2 -- 314 and further that under section 2308 of Magnuson-Moss a supplier may not disclaim any implied warranty in the face of a written warranty. In both counts of the complaint plaintiff also sought revocation of the sale of the automobile.

In its answer, defendant raised as an affirmative defense to the implied warranty count that the implied warranty was affirmatively and conspicuously disclaimed. Plaintiff did not file a reply to this affirmative defense. Subsequently, defendant filed its motion for summary judgment. No response was filed by plaintiff. Following oral argument on the motion, ...


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