Appeal from the Circuit Court of Du Page County. No. 95-L-2115 Honorable Edward R. Duncan, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
Plaintiffs, Dr. Angelo Sorce and his wife, Jo-Ann, appeal from partial summary judgment entered in favor of defendants, Naperville Jeep Eagle, Inc. (Jeep Eagle), and AM General Corporation (AM General), on the issues of revocation of acceptance, breach of warranty, and products liability. We affirm in part and reverse in part.
In January 1993, Dr. Sorce purchased a new Hummer sports utility vehicle from Jeep Eagle. Dr. Sorce intended to use the Hummer as his primary source of transportation. The truck was equipped with an electronic tire pressure regulator that allowed the driver to inflate or deflate the tires from inside the vehicle to accommodate the terrain. The purchase price was $66,404.
The truck was manufactured by AM General. AM General provides a written 3-year or 36,000-mile, "bumper-to-bumper" manufacturer's limited warranty with every new vehicle purchased. The terms of the limited warranty are spelled out in a manual consisting of 19 half-pages. Page nine of the manual sets out what is entitled "LEGAL TERMS," which includes the following language in all capital letters:
"AM GENERAL DOES NOT GRANT TO ANY PERSON PERMISSION TO CREATE FOR IT ANY LIABILITY OR OBLIGATION ASSOCIATED WITH THIS VEHICLE THAT IS NOT WRITTEN IN THE 'NEW VEHICLE LIMITED WARRANTY.' THE LIMITED WARRANTIES IDENTIFIED IN THIS MANUAL ARE THE ONLY WRITTEN WARRANTIES PROVIDED BY AM GENERAL CONCERNING THIS VEHICLE. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLICABLE TO THIS VEHICLE IS LIMITED IN DURATION TO THE DURATION OF THIS WRITTEN WARRANTY. PERFORMANCE OF REPAIRS AND NEEDED ADJUSTMENTS IS THE EXCLUSIVE REMEDY UNDER THIS WRITTEN WARRANTY OR ANY IMPLIED WARRANTY.
AM GENERAL WILL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY FALSIFICATION, MISREPRESENTATION, OR BREACH OF THIS WRITTEN WARRANTY OR ANY IMPLIED WARRANTY."
Jeep Eagle provided Dr. Sorce with a copy of the warranty manual at the time he purchased the truck.
In August 1993, Dr. Sorce and Jo-Ann were in the truck returning home to Illinois from their cottage in Wisconsin. At some point during the trip, the truck began to vibrate severely. According to Jo-Ann, the vibration was so bad that she suffered a back injury that caused her considerable pain. Acting as Jo-Ann's treating physician, Dr. Sorce opined that Jo-Ann's injuries were caused by the vibrations. Dr. Sorce never opined that the vibrations were caused by a defect that existed at the time the truck left the factory. Dr. Sorce requested and received a total tire replacement after the incident.
In his deposition, Dr. Sorce testified that the truck experienced problems from day one--"there was always something wrong with it." The problems included brake pedal vibration, severe tire and vehicle vibration, loss of air pressure in the tires, water leaks around the windows, mold from standing water under the carpeting, hood vibration, which required adjustment, and a persistent lack of heat on the driver's side. The heat problem required three visits to fix, culminating in the replacement of the "heat box." Dr. Sorce alleged that after the heat box replacement noxious fumes began emanating from the heat ducts due to the failure by the dealership to clean grease off the truck's manifold after the repair. The fumes apparently caused numbness and tingling in Dr. Sorce's extremities and burning in his eyes. Dr. Sorce brought the truck in for repair of the tire and vehicle vibration 18 times between March 1993 and September 1995. Allegedly, the problems never were adequately fixed.
From late in 1993 to the middle of 1994, Dr. Sorce claimed to have told the salesman at Jeep Eagle that he no longer wanted the "lemon" and wished to trade it in on another new Hummer. According to Dr. Sorce, each time he told the salesman this, he received assurances that any problems would be fixed. Jeep Eagle eventually offered Dr. Sorce a $20,000 trade-in allowance on the truck. At the time, the truck had been driven approximately 23,000 miles. Dr. Sorce did not think the trade-in offer was a fair deal; he wanted $54,000 for the truck. Nonetheless, he continued to drive the truck because "[he] liked the vehicle to go where it could go, so [he] put up with it for awhile." In May 1994, Dr. Sorce attended a Hummer rally in Dayton, Tennessee. At the rally he drove his truck over extremely rough terrain and through as much as 30 inches of water. He did this despite the fact that the truck had 22 warranty service visits since its purchase.
In September 1995, Dr. Sorce brought the Hummer to Jeep Eagle in an attempt to effectuate another warranty repair. By this time the truck had been in for service over 30 times. Jeep Eagle refused to make the repairs under the warranty because the vehicle had nearly 44,000 miles on it. Through their attorney, plaintiffs sent written notice of revocation of acceptance to Jeep Eagle in October 1995. Jeep Eagle refused the revocation of acceptance.
Plaintiffs brought suit against Jeep Eagle and AM General. Their amended complaint contained four counts. Counts I and II alleged, respectively, breach of express and implied warranties under the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (Magnuson-Moss Act, Magnuson-Moss, or Act) (15 U.S.C. §2301 et seq. (1994)) against both defendants and sought regular, incidental, and consequential damages. Count III alleged revocation of acceptance under Illinois' version of the Uniform Commercial Code (UCC) (810 ILCS 5/1--101 et seq. (West 1994)) against Jeep Eagle; and count IV alleged products liability against both defendants.
Michael Truesdale was retained by plaintiffs as an automobile expert. Truesdale was a high school shop teacher with a master's degree in educational administration and certifications as a master engine machinist and master automotive technician. He did not have an engineering degree. In college, Truesdale took industrial courses, including welding and materials science. In his deposition, Truesdale testified that he had built or reconditioned several race cars in the past. Truesdale "examined" the Hummer in November 1995. His examination entailed riding in the passenger seat while Dr. Sorce drove around the neighborhood. During the ride Truesdale placed a thermometer near the heating ducts and asked Dr. Sorce numerous questions.
Truesdale later submitted a "report" that consisted of "[his] notes from the vehicle inspection [he] performed on [the] Hummer." The "report" summarized Truesdale's understanding of Dr. Sorce's "primary concern" which was "the permanent presence of mildew in the Hummer." The "report" went on to note that the temperature of the heat coming from the ducts was about 30 degrees lower than normal. The "report" offered no opinions to any degree of certainty as to the condition of the truck when it left AM General's factory. Nor were such opinions offered by Truesdale during his deposition.
Defendants moved for summary judgment on all counts. On count I (breach of express warranty), the trial court denied summary judgment to both defendants but prohibited recovery for incidental and consequential damages against AM General. On count II (breach of implied warranty of merchantability), the trial court denied summary judgment to Jeep Eagle and granted it to AM General. On counts III and IV (revocation of acceptance and products liability), the trial court granted summary judgment to both defendants.
Plaintiffs timely appealed. On appeal, plaintiffs contend that summary judgment was improper (1) because the issues of attempted revocation of acceptance and products liability involve disputes over material facts; (2) because, as a matter of law, AM General's limited warranty improperly excluded incidental and consequential damages for breach of warranty; and (3) because, contrary to the trial court's conclusion, an action for breach of implied warranty of merchantability may be maintained under the Magnuson-Moss Act concurrent with an action for breach of express warranty.
A. Standard and Scope of Review
Because this case comes to us from an order granting summary judgment, we apply a de novo standard of review. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). While drastic, summary judgment is at the same time an efficient mechanism for disposing of issues or entire cases raising purely legal questions. Espinoza, 165 Ill. 2d at 113. In adjudicating a summary judgment motion, evidence is construed liberally in favor of the non-movant. Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 30 (1995). A party's right to summary judgment must be clear and free from doubt. Espinoza, 165 Ill. 2d at 113. We will affirm an order of summary judgment when our independent review of the record reveals two elements. First, the pleadings, depositions, and admissions together with affidavits, if any, demonstrate no genuine ...