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Kelly v. Sears Roebuck and Company

November 05, 1999

TIM KELLY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
V.
SEARS ROEBUCK AND COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County

Honorable Aaron Jaffe, Judge Presiding.

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Tim Kelly, appeals from the circuit court's order dismissing the claims in his amended complaint with prejudice. Plaintiff brought the instant class action on behalf of himself and other purchasers of Sears Roebuck and Co.'s (Sears) DieHard(TM) automobile batteries. The circuit court stayed all proceedings on class certification pending the resolution of Sears' motion to dismiss plaintiff's individual action. Because the circuit court dismissed plaintiff's individual action, no class determinations were made, and the present appeal presents issues only as to the individual plaintiff.

In counts I and II of plaintiff's amended complaint, which is the subject of the present appeal, plaintiff alleged that Sears violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)) (the Illinois Consumer Fraud Act), and committed common law fraudulent concealment, by selling batteries to customers as if they were new without disclosing its practice of intermingling new and used batteries.

Plaintiff bought two DieHard(TM) batteries in Florida. Plaintiff claims that he has been injured by Sears' deceptive practice of selling used batteries as if they were new. Plaintiff sought as damages the difference between the amount paid for the batteries and the true market value that reasonable customers would have been willing to pay had they known the concealed information regarding Sears' practice.

Plaintiff did not allege that the DieHard(TM) batteries he bought were actually used or were defective in any manner, but he alleged that he believed one of the batteries, which had failed, was previously used. Plaintiff alleged that all Sears batteries carry a risk of poorer performance due to Sears' practice of intermingling used and new batteries. Plaintiff also argued that Sears' practices deprived its customers of the choice between buying a new battery and a used battery.

Counts III and IV of plaintiff's complaint were claims for intentional and negligent spoliation of evidence, respectively. Plaintiff argued in the alternative that, if purchasers of the batteries were required to prove that the batteries they bought were indeed used, Sears should be liable for failing to preserve the evidence identifying which of the batteries it sold were new and which were used. Both parties agree that once a battery is sold and installed in a vehicle, it is impossible to subsequently determine with certainty whether it was new or used at the time of sale.

The circuit court dismissed plaintiff's claims with prejudice for failure to allege injury sufficient to sustain a cause of action.

For the following reasons, we affirm.

Sears is a New York corporation headquartered in Cook County, Illinois, and is one of the largest general merchandise retailers and operators of automobile repair centers in the United States.

The following factual allegations are taken from plaintiff's amended complaint.

Plaintiff purchased two DieHard(TM) batteries from Sears. The first battery was purchased on or about September 12, 1995, from Sears' Ocala, Florida, store. The second battery was purchased on or about November 6, 1995, also from Sears' Ocala, Florida, store. The two batteries were installed by Sears employees in two different vehicles owned by plaintiff.

Prior to purchasing the batteries, plaintiff had seen and heard Sears' television advertisements for its DieHard(TM) batteries, and none of the advertisements indicated that Sears sold anything but new batteries. Plaintiff recalled seeing one of Sears' commercials where a DieHard(TM) battery jump-started a number of other cars in cold weather.

On September 12, 1995, plaintiff entered the automotive department at Sears' Ocala, Florida, store and approached the counter area. Plaintiff saw only what appeared to be new tires, car stereos, shocks, and other automobile parts. Plaintiff saw only floor models of Sears batteries on display, and all of the models he saw appeared to be new. The batteries were either in new boxes or were shrink-wrapped. It was plaintiff's experience that when Sears sold used merchandise that merchandise was confined to an "as-is" area of the sales floor, distinctly marked "used," and often not in its original packaging. Such merchandise also usually had a drastically reduced sales price. Plaintiff did not receive any indication that used batteries were being offered for sale or that Sears mixed new and used batteries together for retail sale.

Plaintiff informed a salesperson that he needed a new battery for his van. The salesperson tested plaintiff's old battery, told plaintiff he needed a new battery, and recommended a new DieHard(TM) battery. Sears employees then installed a battery in plaintiff's van. The price plaintiff paid for the battery was $79.48, including tax. The receipt stated, "All parts new unless otherwise specified."

Plaintiff's first battery came with a warranty, providing for 72 months of warranty coverage. If found defective within the first 18 months, the battery would be replaced for no charge. After that period, up to 72 months from the date of purchase, the refund value of the battery would be pro-rated based on the number of months it was used.

On or about November 6, 1995, plaintiff again went to Sears' automotive department at the same location and purchased a battery for his car. Again, a Sears salesperson tested plaintiff's old battery, informed him that he needed a new battery, and recommended a new DieHard(TM) battery. Plaintiff paid $70.38, including tax, for this second battery, and the battery was installed by a Sears employee. Plaintiff saw the same display of batteries he had seen when he bought the first battery. The receipt for plaintiff's second battery also stated, "All parts new unless otherwise specified."

Plaintiff's second battery came with a 60-month warranty. During the first 12 months a defective battery would be replaced for free. After that period, up to 60 months from the date of purchase, the refund value of the battery would be prorated based on the number of months it was used. Both of plaintiff's receipts were attached to his amended complaint as exhibits.

On November 7, 1997, plaintiff filed his initial complaint against Sears as a class action in the circuit court of Cook County, alleging that all Sears battery purchasers, including himself, were injured by Sears' deceptive practice of selling used, old, or "out-of-warranty" batteries as if they were new batteries because there was a risk that the batteries they purchased would not perform as well as entirely new batteries and because "possibly new batteries are not as valuable as certainly new batteries."

Plaintiff alleged that Sears took various steps to "clean-up" or otherwise blend in used batteries with new batteries so that the new and used DieHard(TM) batteries would be outwardly indistinguishable to unwitting customers. Plaintiff's initial complaint listed four causes of action, which included a violation of the Illinois Consumer Fraud Act, common law fraudulent concealment, negligent spoliation of evidence, and a request for a preliminary and permanent injunction and other equitable relief.

On or about November 26, 1997, the battery plaintiff purchased on September 12, 1995, failed while he was in the Florida Keys. Plaintiff took his van to a Sears store 60 miles away, where a Sears employee determined that the battery failed a "load test" and recommended a "new" battery. In the "remarks" section of the "quality service check" form that was filled out upon testing plaintiff's failed battery, a Sears technician wrote "BAD BATTERY." Sears employees were unable to jump- start plaintiff's van, and so they installed a "new" battery in the parking lot, pursuant to the warranty ...


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