Appeal from the Circuit Court of Cook County. Honorable Donald J. Suriano and Raymond Funderburk, Judges Presiding.
The opinion of the court was delivered by: Justice Hartman
In docket number 1-02-3402, plaintiff, Anthony Zenari, appeals from a judgment entered in favor of defendant, DaimlerChrysler Corporation, arguing that the circuit court erred in refusing to give his tendered jury instruction regarding the elements of a breach of express limited warranty claim under the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (the Act) (15 U.S.C. §2301 et seq. (1996)). In docket number 1-02-3051, plaintiff, Shannon Pearson, appeals from the circuit court's grant of summary judgment in favor of defendant, DaimlerChrysler Corporation. Pearson had sued for breach of implied and express warranties under the Act.
Zenari purchased a 2000 Plymouth Neon on August 26, 2000. On December 29, 2000, Zenari filed his complaint alleging that the Neon's engine was defective and that defendant had failed to repair the engine despite at least four attempts to do so. Zenari set forth claims for both breach of express written warranty and breach of the implied warranty of merchantability under the Act. The express warranty was defendant's "Basic Limited Warranty," a standard automobile repair and replace warranty, which promised to pay for "all parts and labor needed to repair any defective item on your vehicle that was supplied by [defendant] - that is defective in material, workmanship, or factory preparation."
Zenari offered the following jury instruction on the elements of proof for breach of express warranty:
"In order for the Plaintiff to prove that the Defendant, ***, breached its written warranty, you must find:
1) the existence of a defect in the operation of the vehicle;
2) that the defect resulted from factory-supplied material or workmanship;
3) that the Plaintiff presented the vehicle to Defendant's authorized dealers with the request that the defect be repaired;
4) that the Defendant was unable to repair the vehicle after a reasonable number of attempts."
Defendant offered the following instruction on the elements of proof:
"The Plaintiff, ***, has the burden of proving each of the following propositions:
1) the terms of the warranty given with the purchase of the vehicle;
2) the failure or failures of the warranted parts;
3) a demand upon the Defendant to perform under the terms of the warranty;
4) a failure of the Defendant to do so;
5) compliance of the terms of the warranty by the Plaintiff; and
6) damages resulting therefrom.
If you find from your consideration of all the evidence that each of these propositions have been proved, then you must decide whether the Defendant has breached its written limited warranty. But if, on the other hand, you find from your consideration of all the evidence, that any of these propositions has not been proved, then your verdict should be for the Defendant."
Defendant cited Hasek v. DaimlerChrysler Corp., 319 Ill. App. 3d 780, 745 N.E.2d 627 (2001) (Hasek), as support for this instruction. Over Zenari's objection, the circuit court gave defendant's instruction.
Following a jury trial, judgment was entered in favor of defendant on the express warranty claim. Zenari's motion for a new trial, raising only the instruction issue, was denied.
On November 17, 1999, Pearson leased a new 2000 Plymouth Voyager manufactured and distributed by defendant. Defendant supplied Pearson with a standard materials and workmanship written warranty that provided defendant would repair or ...