The opinion of the court was delivered by: Justice Kilbride
Docket No. 95854-Agenda 12-November 2003.
For the second time, we are asked to review the decision of the appellate court in this case, involving several homeowners' consumer fraud claims against Boise Cascade, a manufacturer of composite wood siding. The trial court entered summary judgment in favor of Boise Cascade, the appellate court reversed, and we vacated the appellate court's judgment, directing the court to reconsider its judgment in light of Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002). See Shannon v. Boise Cascade, 328 Ill. App. 3d 621 (2002), vacated, 201 Ill. 2d 615 (2002). Following vacatur, the appellate court attempted to distinguish Oliveira and reissued its previous opinion in full. 336 Ill. App. 3d 533.
We allowed Boise Cascade's petition for leave to appeal. 177 Ill. 2d R. 315. We further granted leave to the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiffs and also granted leave to the National Association of Independent Insurers and the Product Liability Advisory Council to file amicus curiae briefs in support of defendant. 155 Ill. 2d R. 318. We now reverse the judgment of the appellate court.
Plaintiffs, Lisa M. Shannon, Timothy J. Shannon, Brian K. Connelly, Susan West, Shapour Arami, Bruce Fischer, and James Torongo, own homes covered with a Boise Cascade exterior composite wood siding product. The siding was installed on the homes when they were built between 1983 and 1984. While five of the plaintiffs are subsequent purchasers, Fischer and Torongo are the original owners of their homes. Boise Cascade began manufacturing its composite siding about 1960 but has not manufactured, sold, or marketed the siding since 1984.
Plaintiffs filed a putative class action suit, asserting, inter alia, a claim under the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 1998)), alleging that Boise Cascade's composite siding was defective in that it was subject to rotting, buckling, warping, wick moisture, and general failure. Plaintiffs' complaint further alleged that Boise Cascade deceptively advertised the composite siding, falsely representing that the siding was "of inherent good quality," "durable," "low maintenance," and "looked and performed comparably to natural wood siding." The complaint also avers that Boise Cascade fraudulently and deceptively failed to disclose that its siding "performed poorly in the field," with a "high rate of failure," was sensitive to moisture, and required "highly particularized maintenance."
Admissions in all of the plaintiffs' depositions established that none had received any representations regarding the siding from Boise Cascade. An illustrative example is plaintiff Connelly, who testified that he purchased his 13-year-old home in 1997. At the time of the purchase, he did not know who manufactured the siding and he was not aware of any advertising, literature, or other representations about the siding. Lisa and Thomas Shannon, West, and Arami did not know the siding was a Boise Cascade product. Before purchasing their homes, they were aware that siding damage was present. Fischer and Torongo, the two plaintiffs who purchased new homes, reviewed brochures prepared by the builder containing representations about the siding. Those representations were from the builder and were not consistent with Boise Cascade's product literature. The complaint did not allege that any named builder, architect, or engineer had received Boise Cascade product literature, or that any plaintiff, in making a decision to purchase a home, communicated in any way with any builder, architect, or engineer who had received Boise Cascade product literature. No evidence was proffered at the summary judgment hearing relating to the distribution of product literature to anyone. Moreover, prior to the summary judgment hearing plaintiffs did not request leave to amend their complaint to allege that they relied on builders, architects, or engineers who had been deceived by Boise Cascade's product literature.
The circuit court granted Boise Cascade summary judgment, stating that "seven of the eight plaintiffs neither saw, heard, or otherwise were aware of the defendant's advertising," and finding that the claimed damages were not proximately caused by the alleged deceptive advertising. The circuit court refused to enter summary judgment against an eighth plaintiff, Jack B. Babel, who bought his home new in 1984, knew the siding was manufactured by Boise Cascade, and had read some of Boise Cascade's publications prior to making his purchase. Babel's claim is not at issue in this appeal.
Following a Supreme Court Rule 304(a) finding by the circuit court that there was no just reason to delay enforcement or appeal (155 Ill. 2d R. 304(a)), plaintiffs appealed, arguing that the circuit court improperly analyzed the elements of a cause of action under the Act, in particular the concepts of "materiality" and "proximate causation." The appellate court reversed, holding that the circuit court construed the Act too narrowly by requiring privity, "some sort of direct contact between the plaintiffs and the representations made by Boise Cascade." Boise Cascade, 328 Ill. App. 3d at 625. According to the appellate court, the Act created a new cause of action, affording consumers broad protection by prohibiting any deception or false promise. Boise Cascade, 328 Ill. App. 3d at 625-26. The appellate court further held that the circuit court erred in its conclusion that there was no proximate causation. Boise Cascade, 328 Ill. App. 3d at 628. According to the appellate court, "[w]here reasonable minds could differ whether the defendant's conduct was a substantial factor in bringing about the injury, the matter is for the jury to decide." Boise Cascade, 328 Ill. App. 3d at 628.
Justice Turner dissented. He believed that the majority failed to address the actual proximate cause theory advanced by plaintiffs in this case. Boise Cascade, 328 Ill. App. 3d at 631 (Turner, J., dissenting). The plaintiffs' theory, as alleged in the complaint, posited that "in [the absence of the] promotion and marketing activities [of Boise Cascade] a market would not have been developed for composite wood siding and thus the siding would not have been sold in the State of Illinois and therefore it would not have been installed on the residences of plaintiffs and the other members of the class."
Boise Cascade sought leave to appeal to this court (177 Ill. 2d R. 315) and, while the petition was pending, we filed our opinion in Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002). Oliveira involved a putative class action against a gasoline company under the Act, where plaintiff alleged that Amoco engaged in a deceptive advertising campaign for its premium gasolines, resulting in consumer fraud. In Oliveira, this court rejected the plaintiff's "market theory" of proximate causation that was almost identical to the theory pleaded by plaintiffs here. Oliveira, 201 Ill. 2d at 149-55. We then vacated the appellate court judgment and directed that court to reconsider its judgment in the light of Oliveira. Shannon v. Boise Cascade, 201 Ill. 2d 615 (2002) (supervisory order).
Plaintiffs then sought leave from the appellate court to amend their complaint (155 Ill. 2d Rs. 362, 366) to allege that certain unspecified "architects, code promulgating bodies, materials suppliers, builders and homeowners" relied on Boise Cascade's representations. The proposed amendment did not allege, however, that any of the builders, material suppliers, architects, or other third parties actually involved in the plaintiffs' homes were aware of the alleged misrepresentations. It reiterated the "market theory" of proximate cause as set out in their original complaint. Leave to amend was denied.
The appellate court distinguished Oliveira, stating that the Oliveira plaintiff was solely concerned with price and did not complain that the product involved was defective. 336 Ill. App. 3d at 537. Further, according to the appellate court, "[i]t is sometimes possible to rely on misrepresentations without reading the documents in which such misrepresentations are made. *** Purchasers of homes employ builders, architects, and engineers to examine the product literature ...