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09/29/95 KAREN CONNICK v. SUZUKI MOTOR CO.

September 29, 1995

KAREN CONNICK, TOBY GLICKMAN, JEFFREY EPSTEIN, WILLIAM DIXON, HAROLD KAY, ROSE STOREY, JOHN SACCO, PHILLIP COLLICCHIO, DANIEL REDELHEIM, RICHARD H. ALBRIGHT, JR., MICHAEL V. COOPERSTEIN, AND GARY LONG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
SUZUKI MOTOR CO., LTD., A JAPANESE CORPORATION, AND AMERICAN SUZUKI MOTOR CORPORATION, A CALIFORNIA CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable John N. Hourihane, Judge Presiding.

Rehearing Denied August 1, 1995. Released for Publication November 3, 1995. Petition for Leave to Appeal Allowed December 6, 1995.

The Honorable Justice Hartman delivered the opinion of the court: Scariano, P.j., and McCORMICK *fn5, J., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs brought this class action on behalf of all owners and lessees of the Suzuki Samurai, to recover for alleged breaches of warranty, fraud, violation of consumer protection statutes, misrepresentation, and negligent failure to recall. The circuit court dismissed plaintiffs' amended complaint, second amended complaint, and third amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure, Ill. Rev. Stat. 1987, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1994)).

In order to comply with recently adopted page limitations set forth in Supreme Court Administrative Rule MR No. 10343, which accompanied amended Supreme Court Rule 23 (134 Ill. 2d R.23 (amended eff. July 1, 1994)), the written disposition in this appeal will be bifurcated into this opinion, to be published, and an unpublished Rule 23 order disposing of the remaining, nonprecedential issues, filed contemporaneously with this opinion.

The following issues are presented for review in this appeal; theirdispositions, whether by this opinion or by Rule 23 order (Rule 23), are designated in parenthesis. We are asked to decide whether: (1) counts V, VI and VII are subject to review in this appeal (Rule 23), (2) New Jersey law is applicable to this case (Rule 23), (3) the circuit court erred in dismissing plaintiffs' claim for: (a) breach of express warranty (opinion), (b) breach of implied warranty (opinion), (c) violation of the consumer fraud statutes (opinion), and (d) common law fraud (Rule 23). We affirm in part, and reverse in part, for reasons which follow.

The third amended complaint (complaint) alleged that plaintiffs, who are citizens of Illinois, Pennsylvania, or New Jersey, purchased Suzuki Samurai vehicles (the "Samurai") from authorized Suzuki dealers at a per vehicle cost in excess of $8,000. The Samurai was alleged to be defective in design or production in that it was prone to roll over under normal driving conditions; its weak body integrity made such rollovers dangerous to the vehicle's occupants; and defendants Suzuki Motor Co., Ltd. and American Suzuki Motor Corporation (collectively "Suzuki") sold the Samurais knowing of their propensity to roll over. The complaint did not allege that plaintiffs suffered rollovers; it sought economic damages for the diminished value of their vehicles.

On September 9, 1992, pursuant to section 2-615, the circuit court dismissed all seven counts of plaintiffs' amended complaint, which alleged breach of express and implied warranties, violation of consumer fraud statutes, common law fraud (counts I through IV), misrepresentation and nondisclosure, negligent misrepresentation, and negligent failure to recall (counts V through VII). The court granted plaintiffs 28 days to amend their pleadings.

The second amended complaint, which realleged counts I through IV, was dismissed on July 7, 1993. Once again, the court allowed plaintiffs leave to file an amended complaint. The third amended complaint also realleged counts I through IV and was dismissed with prejudice on March 16, 1994.

Plaintiffs filed a timely notice of appeal, appealing from all three orders discussed above.

I

Plaintiffs contend that the circuit court erred in dismissing their claim for breach of express warranty since Suzuki expressly warranted that all "parts" of the Samurai were free of defects. This warranty assured purchasers, plaintiffs claim, that the steering mechanism and suspension, comprised of "parts," were appropriate for normal driving; that other "parts," the doors, roof system and framewould protect occupants in case of a rollover. Authorized Suzuki dealers allegedly made express warranties that the Samurai was safe for highway and off-road use, was a good all-around truck, had a narrower wheelbase that kept it from tipping over, and had certain safety features. Finally, plaintiffs claim that the 1988 Suzuki Samurai owner's manual contained express warranties.

Suzuki responds that this claim is deficient for the following reasons: the written warranty applies solely to automobile parts, does not relate to the issue of rollover or resale value, and is limited to 12 months; the complaint failed to allege that the express warranties became part of the basis of the bargain; the complaint did not satisfy the privity requirement in Illinois; the complaint did not allege that Suzuki was notified of the breach; and the injury plaintiffs claim to have suffered, diminution of the resale value of the vehicles, bears no relationship to the breach of any express warranty and is speculative.

A motion to dismiss pursuant to section 2-615 attacks the sufficiency of a complaint and will be decided solely on the allegations set forth in the complaint. ( People ex rel. Peters v. Murphy-Knight (1993), 248 Ill. App. 3d 382, 386, 618 N.E.2d 459, 187 Ill. Dec. 868.) *fn1 The motion admits all well-pleaded facts, but no conclusional allegations of law or fact. ( Murphy-Knight, 248 Ill. App. 3d at 386.) On review, the question is whether, when viewed in the light most favorable to plaintiffs, the facts alleged in the complaint adequately state a cause of action. Murphy-Knight, 248 Ill. App. 3d at 386.

Section 2-313 of the Uniform Commercial Code (UCC) provides:

"Any 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." Ill. Rev. Stat. 1987, ch. 26, par. 2-313(1)(a) (now 810 ILCS 5/2-313(1)(a) (West 1994)); 13 Pa. Cons. Stat. § 2313(a)(1) (1994).

A

Suzuki's first contention is that the 1987 new vehicle warrantyrelates solely to automobile parts, not to the issue of rollover, and is limited in duration.

The Suzuki warranty states:

"Suzuki warrants all parts of your 1987 SUZUKI vehicle supplied by SUZUKI, except for those items listed under "WHAT IS NOT COVERED."

This warranty covers repairs or replacements needed to correct defects in materials or workmanship. Warranty repairs will be made at no charge for parts and/or labor. Any needed parts replacement will be made using new or remanufactured genuine SUZUKI parts."

Although the complaint does not allege a breach of some individual part warranty, the warranty clearly relates to the safe utilization of the "parts" that make up the vehicle. Surely, a consumer cannot be said to have intended only to purchase a pile of defective-free parts; rather, the purchaser invested in a vehicle constructed of those parts which, when used as intended, will not rollover and, if it does, will protect the occupants of the vehicle.

With regard to the argument that the "parts" warranty is limited in duration, the limited warranty provides: "This warranty is for 12 months or 12,000 miles, whichever comes first. The warranty begins with the date the vehicle is first delivered at retail or first put into use, whichever is earlier."

The UCC clearly allows for the limitation of warranties as long as it is consistent with the creation of the warranty itself. (Ill. Rev. Stat. 1987, ch. 26, par. 2-316(1) (now 810 ILCS 5/2-316(1) (West 1994)); 13 Pa. Cons. Stat. § 2316(a); Tokar v. Crestwood Imports, Inc. (1988), 177 Ill. App. 3d 422, 430-33, 532 N.E.2d 382, 126 Ill. Dec. 697.) Here, the warranty claims of plaintiffs Sacco, Kay, and Cooperstein are deficient on their face since they allege discovery of the alleged defect after the expiration of the warranty period. Sacco, Kay, and Cooperstein allege that they purchased their Samurais prior to April 1987. Because all plaintiffs allege that they "came to learn of the Samurai's dangerous propensities" in June 1988, they could not have discovered any alleged defects until after the warranty period had expired. See Tokar, 177 Ill. App. 3d at 433.

Accordingly, plaintiffs Sacco, Kay, Cooperstein, and all other plaintiffs who purchased their vehicles prior to June 1987, may not avail themselves of the promises made in Suzuki's New Vehicle Limited Warranty.

B

Suzuki submits that alleging the express warranties to havebecome a part of the basis of the bargain is conclusional and insufficient. Plaintiffs counter that Suzuki's representations are presumed to be a part of the bargain.

Documents, brochures, and advertisements may constitute express warranties. ( Wheeler v. Sunbelt Tool Co., Inc. (1989), 181 Ill. App. 3d 1088, 1100, 537 N.E.2d 1332, 130 Ill. Dec. 863.) Such affirmations made during the bargain are presumed to be a part of it unless clear, affirmative proof shows otherwise. Wheeler, 181 Ill. App. 3d at 1100.

In this case, the allegations state that Suzuki issued an express written warranty with each Samurai sold and that authorized Suzuki dealers made oral representations of vehicle safety prior to the purchase of the vehicles. The complaint alleges that the "express warranties became part of the basis of the bargain between plaintiffs and defendants." Because these affirmations were made during the bargain they are presumed to be a part of it unless and until Suzuki presents clear, affirmative proof indicating otherwise. Wheeler, 181 Ill. App. 3d at 1100.

At this stage of the proceedings, it was error to dismiss the complaint on the ground that the express warranties did not become a part of the basis of the bargain.

C

Suzuki maintains that the allegations in the express warranty claim fail to satisfy the ...


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