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09/30/97 SAMUEL J. CAHNMAN v. AGENCY RENT-A-CAR

September 30, 1997

SAMUEL J. CAHNMAN, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
AGENCY RENT-A-CAR SYSTEM, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Stephen A. Schiller, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court. McNULTY, P.j., and Frossard, J., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Plaintiff, Samuel J. Cahnman, filed suit against defendant, Agency Rent-A-Car, on behalf of himself and all others similarly situated under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 1996)), alleging defendant unlawfully charged an "additional driver fee" when plaintiff rented an automobile from defendant and sought to permit another individual to drive the car. Plaintiff alleged that charging the fee was prohibited by the Illinois Vehicle Code (625 ILCS 5/6-305 (West 1996)), and, thus, defendant committed fraudulent and deceptive acts in charging it, thereby causing damage to plaintiff. The trial court granted defendant's section 2-615 motion to dismiss under the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), and plaintiff appeals this denial. For the following reasons, we affirm.

FACTS

On March 16, 1996, plaintiff rented a car from defendant for use in his political campaign. Plaintiff wanted one of his volunteers, Wilma Miller, to drive the car. Defendant's rental contract required each additional driver to be listed on the contract. In addition, it charged a $5 fee per day for each additional driver. Plaintiff listed Miller on the contract and, upon returning the vehicle, paid the additional driver fee.

Plaintiff filed suit contending that defendant was prohibited from charging the additional driver fee since under section 6-305, his employee, Miller, was already authorized to drive the car and, therefore, could not be charged a fee for being given the privilege to drive it. In other words, plaintiff argues that he is being charged for something to which he already had a right.

The trial court dismissed plaintiff's complaint, finding that it failed to state a cause of action upon which relief could be granted.

ANALYSIS

Plaintiff contends that section 6-305 gives those drivers therein specified the right to drive a rental car and, therefore, defendant cannot charge a fee for that right since it already exists. He argues that this section was enacted to eradicate the long history of deceptive charges in the rental car industry, which includes the additional driver fee and, thus, defendant's act is proscribed.

The statute relied upon by plaintiff states:

"(d) No person who rents a private passenger motor vehicle to another shall, in rental agreements of 30 continuous days or less, hold any authorized driver liable for any damage or loss to the rented vehicle exceeding $200 including loss of use and any costs and expenses incident to the damage, loss or loss of use ***.

(e) For the purposes of section (d) of this Section, 'authorized driver' shall mean the person to whom the vehicle is rented; the renter's spouse if a licensed driver who satisfies the rental company's minimum age requirement; the renter's employer or coworker if they are engaged in business activity with the person to whom the vehicle is rented, are licensed drivers, and satisfy the rental company's minimum age requirement; any person who operates the vehicle during an emergency situation or while parking the vehicle at a commercial establishment; ...


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