Appeal from the Circuit Court of Cook County. No. 01 CR 2848 The Honorable Dennis J. Porter, Judge Presiding.
The opinion of the court was delivered by: Justice Tully
This appeal arises from the dismissal of plaintiffs' complaint. The plaintiffs, Sharon and Mitchell Weiss, filed a complaint against the defendant, MI Home Products, under various theories of breach of warranty and for a declaratory judgment. The plaintiffs are the original owners of their townhome and they allege that numerous windows manufactured by the defendant and installed in their home failed and fogged. The plaintiffs allege that some of the windows were replaced by the defendant under a warranty but that defendant failed to pay the costs for shipping and installation of the replacement windows. Plaintiffs further allege that the defendant refuses to replace other failed window units in the residence, claiming the warranty on those units has expired.
Plaintiffs have attached two warranties to their pleadings. The first is a copy of the warranty the plaintiffs received from another townhome owner and indicates "Rev 1/98". The other is a warranty produced by the defendant during the course of this litigation and represented to be the warranty applicable to the windows at issue.
The first warranty obtained by plaintiffs from another homeowner states as follows with regard to insulated windows:
"LIMITED MANUFACTURERS' WARRANTY
INSULATED GLASS UNIT. 10 years from date of installation, the insulating glass units will be free of obstruction of vision as a result of dust or film formation on the internal surfaces caused by failure of the hermetic seal due to faulty manufacture under conditions of normal use and service. THE MANUFACTURER will assume 100% of the cost of the replacement glass within the first ten years. *** Replacement material may be picked up at THE MANUFACTURER'S factory, or at any designated distribution point. *** This warranty covers material only and THE MANUFACTURER does not assume any expense involved with the removal or reinstallation of any replacement parts."
The second warranty produced by the defendant states that the "Limited Lifetime Warranty" does not extend to insulated glass and specifically states that insulated glass is covered under separate warranty. The section which applies to insulated glass states as follows:
"INSULATED GLASS (Limited 10 Year Warranty)
Capitol Windows and Doors, a Division of Metal Industries, Inc. of California warrants that for a period of ten (10) years from the date of manufacture (as marked on the insulated glass separator channels to which this limited warranty applies) that the lite (s) will be free from material obstruction of vision as a result of dust or film formation on the internal glass surfaces caused by failure of the hermetic seal due to faulty manufacture of the lite (s) by the manufacturer.
In the event that the insulated glass lite(s) fail to conform to the Manufacturer's limited warranty previously described, the Manufacturer will, at its option, furnish the Purchaser with another insulated glass lite(s), FOB nearest the Manufacturer's shipping point, or refund the purchase price of the insulated glass lite(s).
The Manufacturer will bear no other expense (i.e. labor costs of any kind) and the Purchaser's exclusive remedy, in lieu of all incidental, special, or consequential damages, including damages, is limited to a refund or the furnishing of another product as heretofore described."
The plaintiffs are the original owners and purchased their townhome in 1994. They allege they replaced windows with failed seals in 2000, 2001 and the spring and summer of 2004. These windows were replaced free of charge; however, the plaintiffs allege defendants failed to pay for labor and shipping costs. The plaintiffs further allege that the windows are "consumer products" as defined in the Magnuson-Moss Warranty Federal Trade Improvement Act, (15 U.S.C. §2301 et seq. (2000)) and "goods" as defined in the Uniform Commercial Code (810 ILCS 5/2-105 (1) (West 2006)). Plaintiffs seek to enforce the terms of the applicable written warranty under the statutory standards set forth in the Magnuson-Moss Warranty Federal Trade Improvement Act (MMWA) and Uniform Commercial Code (UCC). Plaintiffs argue these standards require defendant to pay for shipping and labor costs. Plaintiffs further argue that these standards require defendant to provide a lifetime warranty. The plaintiffs claim defendant breached the warranty under the UCC and under the MMWA. The plaintiffs further claim the defendant breached the express warranty.
The plaintiffs argue that the windows at issue are a "consumer product" so that the warranty given by the defendant is covered by the MMWA. The plaintiffs do not cite authority for this position. We find no authority and conclude this is an issue of first impression. The issue is whether the windows installed in the new construction of a home are a "consumer product" as defined by the MMWA so that an action based upon a written contract for the windows of a home may ...