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Bartow v. Ford Motor Co.

July 31, 2003

VICKI BARTOW, PLAINTIFF-APPELLEE,
v.
FORD MOTOR COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 01 M 108786 Honorable John G. Laurie, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

This cause was brought by plaintiff Vicki Bartow against defendant Ford Motor Company, pursuant to the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (the Act) (15 U.S.C. §2301 et seq. (2000)), to recover damages for the alleged breaches of written and implied warranties that covered plaintiff's purchase of a 1999 Ford Ranger. Defendant moved to dismiss plaintiff's amended complaint pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/ 2-619 (West 2000)) on the basis that plaintiff lacked standing. The trial court denied the defendant's motion, and this appeal followed. For the reasons that follow, we affirm.

On or about December 12, 1998, plaintiff purchased a new 1999 Ford Ranger for $18,718. At the time that plaintiff purchased the Ranger, the car dealership issued her Ford's written warranty for the vehicle, which included 3-year or 36,000-mile "bumper to bumper" coverage. However, from the time plaintiff took delivery of the vehicle, she allegedly encountered repeated problems that constantly required her to bring the vehicle to the shop for repairs. For example, she claimed that "the vehicle persistently vibrated ***. The engine was defective, and the automobile would ride rough and constantly emit ticking noises due to the engine's flaws. The air conditioning system proved defective. The electrical system of the vehicle was malfunctioning, as evidenced by the windshield wipers coming on by themselves." As a result of those problems, plaintiff claims that defendant attempted to repair her vehicle "on at least ten occasions" and was unsuccessful each time. In other words, plaintiff claims, the defendant was unable to comply with its express and implied warranties because of its inability to fix the defects.

On or about December 18, 2001, plaintiff exchanged the Ranger for a $9,500 trade-in allowance and, thereafter, purchased a 2001 Ford Explorer. Plaintiff filed her initial complaint as to the Ranger on January 16, 2002, and her amended complaint on February 27, 2002. There, she asserted that the Ranger began experiencing defects shortly after she purchased it and that the authorized Ford dealers to whom she had brought the vehicle for repairs were unable to remedy them. In that regard, the complaint set out three causes of action: breach of a written warranty pursuant to the Act (count I); breach of implied warranty pursuant to the Act (count II); and revocation of acceptance pursuant to section 2310(d) of the Act (15 U.S.C. §2310(d) (2000)) (count III).

On April 5, 2002, defendant filed its section 2-619 motion to dismiss, claiming that the plaintiff no longer had standing to bring her cause under the Act where she did not own the vehicle or the related warranty at the time she filed suit. On May 29, 2002, after argument, the trial court denied defendant's motion. However, the trial court found that the unique nature of the issue justified a grant of defendant's request for an immediate appeal of the May 29, 2002, order. On July 24, 2002, the defendant timely filed its application for a permissive interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308), which we granted on September 13, 2002.

The issue is whether the plaintiff had standing to bring her cause of action where she had sold both the car at issue and its attendant warranty prior to filing her complaint. If the plaintiff needed to be in actual, physical possession of the car at the time she brought this action, then she has no legally recognizable interest in the subject matter of the litigation. Our decision to affirm the trial court rests on our analysis of the Illinois Uniform Commercial Code (the UCC) (810 ILCS 5/1-101 et seq. (West 2000)) as well as Illinois case law.

Recently, we recited the standard of review for a section 2-619 motion:

"A section 2-619 motion to dismiss raises certain defects or defenses and questions whether a defendant is entitled to judgment as a matter of law. 735 ILCS 5/2-619 (West 2000). When reviewing a motion to dismiss, this court must accept all well-pleaded facts as true (In re Parentage of M.J., 325 Ill. App. 3d 826, 829 (2001)) and view them in the light most favorable to the plaintiff (Summers v. Village of Durand, 267 Ill. App. 3d 767, 769 (1994)). The court may consider all facts presented in the pleadings, affidavits, and depositions contained in the record. Arriola v. Time Insurance Co., 296 Ill. App. 3d 303, 306 (1998). On appeal, the standard of review for a motion to dismiss is de novo, because the resolution hinges on a question of law. Prime Leasing, Inc. v. Kendig, 332 Ill. App. 3d 300, 307 (2002)." Gonnella Baking Co. v. Clara's Pasta Di Casa, Ltd., 337 Ill. App. 3d 385, 388 (2003).

We also recently provided a general description of actions brought under the Act:

"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). Although the Act does not require any consumer product to be warranted (15 U.S.C. § 2302(b)(2) (1994)), if a manufacturer or supplier chooses to warrant a product, the Act imposes specific minimum federal standards for warranties (15 U.S.C. § 2304(a) (1994)). A consumer who prevails against the warrantor 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)." Nowalski v. Ford Motor Co., 335 Ill. App. 3d 625, 628 (2002).

In addition, we note that the law derived from the Act is governed by a three-tiered structure. The first tier, obviously, is the Act itself, by means of the supremacy clause of the United States Constitution. The supremacy clause provides that "the Laws of the United States *** shall be the supreme Law of the Land *** any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. As such, "[f]ederal preemption of state law can occur in three circumstances: (1) express preemption, where Congress explicitly preempts state law; (2) implied preemption, where Congress has occupied the entire field (field preemption); and (3) implied preemption, where there has been an actual conflict between federal and state law (conflict preemption). [Citation.]" Mejia v. White GMC Trucks, Inc., 336 Ill. App. 3d 702, 705 (2002). In all three such situations, the Act controls.

However, where the Act does not conflict with state law governing the sales of consumer products, state law -the second tier- then governs. See Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 323 (1999) ("[o]nly to the extent that Magnuson-Moss is applicable to the sale of consumer goods does it supercede inconsistent provisions of the UCC"). As section 2311(b)(1) of the Act states, "[n]othing in this chapter shall invalidate or restrict any right or remedy under State law." 15 U.S.C. §2311(b)(1) (2000). Moreover, the Act specifically notes that a consumer may bring a suit "for damages or any other legal and equitable relief" under the Act. 15 U.S.C. § 2310(d)(1) (2000). The Sorce court recognized as much when it stated, "[i]n analyzing Magnuson-Moss issues, it must be kept in mind that in the first instance the UCC governs sales of goods, including accompanying warranties." Sorce, 309 Ill. App. 3d at 322-23.

Lastly, beneath the UCC, lies the third tier: the common law of sales. The Illinois UCC expressly provides:

"Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, unjust enrichment, bankruptcy, or other validating or invalidating cause shall supplement its provisions." 810 ILCS 5/1-103 (West 1998).

In the present case, defendant notes that to avail herself of the protections afforded by the Act, the plaintiff must be a "consumer" as defined by the Act. A "consumer" is limited to:

"[a] buyer (other than for the purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service ...


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