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Nowalski v. Ford Motor Company

November 27, 2002

MARK AND ALICE NOWALSKI, PLAINTIFFS-APPELLANTS,
v.
FORD MOTOR COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable John B. Grogan, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

Mark and Alice Nowalski purchased a new automobile from Ford Motor Company in October 1995. The vehicle came with a limited 3-year/36,000 mile warranty. They discovered problems with the car's rear axle and brought the car to the dealer for repairs on at least five occasions. Finally, they filed a complaint against Ford in January 2001. Ford contended their action was filed too late, and the trial court entered summary judgment for Ford.

The Nowalskis chose to file their cause of action for breach of warranty under the federal Magnuson-Moss Act (the Act) (15 U.S.C. §2301 et seq. (1994)). The issue in this case is created by the failure of the Act to provide a statute of limitations. As directed, we look to the most analogous state statute of limitations. The parties and the Illinois courts seem to agree that the four-year statute in UCC section 2-725 controls. 810 ILCS 5/2-725 (West 2000).

The question is, when did the plaintiffs' cause of action accrue--when Ford failed to successfully repair the vehicle, or when the vehicle was delivered? If the latter, then the Nowalskis filed too late. Our decision rests on our analysis of this court's decision in Cosman v. Ford Motor Co., 285 Ill. App. 3d 250, 674 N.E.2d 61 (1996). We decline to apply Cosman to the facts of this case and affirm the trial court. FACTS

The UCC statute of limitations section at issue states:

"Sec. 2-725. Statute of Limitations in Contracts for Sale.

(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." 810 ILCS 5/2-725 (West 2000).

On October 7, 1995, plaintiffs purchased and took possession of a new 1995 Ford Mustang manufactured by defendant. The car was sold with a "New Vehicle Limited Warranty" that provided:

"Authorized Ford Motor Company dealers will repair, replace or adjust all parts on your vehicle (except tires) that are defective in factory-supplied materials or workmanship for 3 years or 36,000 miles (whichever occurs first)."

Plaintiffs' complaint alleged the rear axle assembly of the vehicle was defective. They took the car to various Ford service dealers to have repairs performed on the rear axle. On appeal, plaintiffs contend there were five unsuccessful repair attempts-- on August 30, 1996; October 5, 1998; October 14, 1998; December 15, 1998; and February 23, 1999. *fn1 The car was delivered on October 7, 1995. The final three repair attempts took place after the expiration of the warranty period. Plaintiffs filed their complaint on January 29, 2001.

The complaint alleged causes of action under the Magnuson-Moss Act for breach of implied warranty, breach of the express "repair or replace" warranty, and revocation of acceptance. Defendant moved to dismiss on grounds other than the statute of limitations. That motion was denied. Discovery was conducted and completed. At the mandatory arbitration that followed an award was entered for plaintiffs in the amount of $5,000, plus attorney fees and costs of $4,309.65. Plaintiffs rejected the arbitrators' award, and the case was assigned to the circuit court's trial calendar.

Ford then moved for summary judgment, arguing plaintiffs' claims for breach of implied warranty and breach of written warranty were barred by the statute of limitations, which began to run on October 7, 1995, the date of delivery of the vehicle. Plaintiffs voluntarily dismissed their claim for breach of implied warranty, under the decision in Cosman, 285 Ill. App. 3d at 257. *fn2 However, plaintiffs contended their claim for express warranty was filed within the appropriate time period ...


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