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11/14/96 ELMER AND JOSEPHINE COSMAN v. FORD MOTOR

November 14, 1996

ELMER AND JOSEPHINE COSMAN, PLAINTIFFS-APPELLANTS,
v.
FORD MOTOR COMPANY, A FOREIGN CORPORATION, GEORGIE BOY MANUFACTURING COMPANY, INC., A FOREIGN CORPORATION, AND MOTORHOMES UNLIMITED, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. 94 L 4225. Honorable Joseph Casciato, Judge Presiding.

As Corrected November 14, 1996. Rehearing Denied November 23, 1996. Released for Publication January 15, 1997.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and S.m. O'brien, J., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

We here enter the complex world of warranties to repair motor vehicles and the impact upon them under the federal Magnuson-Moss Act (15 U.S.C. §§ 2301-12 (1994)).

When in 1994 Elmer and Josephine Cosman sued the manufacturers of a motor home they purchased in 1989, they included two counts in the complaint under the Magnuson-Moss Act. Although the two repair warranties the Cosmans received when they purchased their motor home ran for five and six years, the trial court believed, not without reason, that he was compelled to apply a four year statute of limitations under the Illinois Uniform Commercial Code (810 ILCS 5/2-725 (West 1994)). The court made two critical findings: 1) the repair warranties the Cosmans received were not promises of future performance under Illinois law, and 2) the four year statute of limitations for actions on the sale of goods began to run when the goods were delivered, absent a promise of future performance. The problem with this analysis and disposition is immediately apparent: the Cosmans are holding warranties that have not expired, but are unable to legally enforce them. There appears to be no Illinois decision that offers precise guidance. We believe the proper analysis compels a finding that the word "warranty" in the Magnuson-Moss Act is broader in meaning than the word "warranty" in the Illinois Uniform Commercial Code. A warranty under the Magnuson-Moss Act includes promises to repair products in the future whose inherent reliability is not warranted. Under the Uniform Commercial Code a warranty to make repairs in the future is not addressed.

The Cosman's five count complaint against Motorhomes Unlimited, Inc., Georgie Boy Manufacturing Company, and Ford Motor Company, filed on April 7, 1994, alleges that the Cosmans bought a "1990 Georgie Boy Cruise Air III Motor home" from Motorhomes Unlimited on September 12, 1989. The motor home was built by Georgie Boy and incorporated an engine and chassis made by Ford.

Plaintiffs allege in their complaint that problems first arose with the vehicle in June 1990 when the brakes were replaced and the gear box adjusted. Then, in September 1990, the catalytic converter and exhaust systems were replaced. Plaintiffs took the vehicle to Georgie Boy for more repairs in August 1991. The steering gear box was replaced a second time in October 1991. Despite these repairs, plaintiffs allege the vehicle remains "defective, unsafe, and dangerous."

Counts I, II and V are not a subject of this appeal. Counts III and IV allege Ford and Georgie Boy breached express and implied warranties under the federal Consumer Product Warranty Act, popularly known as the Magnuson-Moss Act (15 U.S.C. §§ 2301-12 (1994)).

Ford and Georgie Boy filed motions to dismiss counts III and IV under section 2-615 of the Illinois Code of Civil procedure. 735 ILCS 5/2-615 (West 1994). They argued that the counts were barred by the four year statute of limitations under section 2-725 of the Uniform Commercial Code. 810 ILCS 5/2-725 (West 1994). The trial court agreed and found that the four year statute under section 2-725 of the Code began to run on September 12, 1989, when plaintiffs took delivery and that the action was not filed within that limitations period. The court dismissed the Magnuson-Moss counts with prejudice. Plaintiffs then filed motions to reconsider and amend the complaint to include allegations of fraudulent concealment. The court denied both motions and found no just reason to delay enforcement or appeal of the dismissal. 134 Ill. 2d R. 304(a). Plaintiffs appeal.

We note that defendants' motions under section 2-615 of the Code of Civil procedure should have been brought under section 2-619. Defendants rely on "affirmative matter"--the statute of limitations--to defeat plaintiffs' claims. A section 2-619 motion to dismiss admits the legal sufficiency of the complaint, but asserts an affirmative defense or other matter which avoids or defeats the claim. Joseph v. Collins, 272 Ill. App. 3d 200, 206, 649 N.E.2d 964, 208 Ill. Dec. 604 (1995). Subsection (a)(9) permits dismissal where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1994). Designating a motion under a different paragraph of the Code is not fatal. See Illinois Housing Development Authority v. Sjostrom & Sons, Inc., et al., 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350, 61 Ill. Dec. 22 (1982). Plaintiffs have not been prejudiced by this error, so we will treat defendants' motions as if they had been filed under section 2-619 of the Code. We review the dismissal of the counts de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993).

The Magnuson-Moss Act creates civil actions for consumers in state or federal court when suppliers, warrantors, or service contractors violate the provisions of the Act. 15 U.S.C. § 2310(d)(1) (1994). A consumer who prevails may elect repair, replacement, or refund of defective parts. 15 U.S.C. § 2301(10) (1994). If the product cannot be repaired after a reasonable number of attempts, the consumer may elect either a replacement or a refund. 15 U.S.C. § 2304(a)(4) (1994).

The Act imposes on manufacturers and express warrantors the same implied warranties imposed under state law only on the buyer's immediate seller. Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 518 N.E.2d 1028, 116 Ill. Dec. 207 (1988). The Act has no statute of limitations. When a federal statute creates a cause of action, but does not include a statute of limitations, federal common law directs courts to apply the state statute of limitations for the state action most analogous to the federal claim. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983).

Ford and Georgie Boy contend that the state law action most analogous to plaintiffs' Magnuson-Moss warranty claims is an action for breach of warranty in a contract for sale. We agree. That statute is found under section 2-725 of the Uniform Commercial Code. It reads:

"(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of ...


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