Kim v. Mercedes-Benz, USA, Inc.

• Citation: 818 N.E.2d 713,288 Ill.Dec. 778,353 Ill. App.3d 444
• Decision Date: 17 June 2004
• Docket Number: No. 1-03-1270.,1-03-1270.
• Parties: Jung KIM, Plaintiff-Appellant, v. MERCEDES-BENZ, U.S.A., INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

818 N.E.2d 713

353 Ill. App.3d 444

288 Ill.Dec. 778

Jung KIM, Plaintiff-Appellant, v. MERCEDES-BENZ, U.S.A., INC., Defendant-Appellee.

No. 1-03-1270.

Appellate Court of Illinois, First District, Fourth Division.

June 17, 2004.

As Modified Upon of Rehearing October 21, 2004.

Krohn & Moss, Ltd., Chicago (Scott M. Cohen, of counsel), for Appellant.

Barnes & Thornburg, Chicago (Bradley B. Falkof and Charla L. Hausler, of counsel), for Appellee.

MODIFIED UPON REHEARING

Justice QUINN delivered the opinion of the court:

Plaintiff, Jung Kim, brought this breach of warranty action against defendant, Mercedes-Benz, USA, Inc. (Mercedes-Benz), to revoke acceptance of a 1999 model-year Mercedes-Benz ML 320 (ML 320) sport-utility vehicle that he purchased from a dealership on October 29, 1998. The circuit court granted defendant's directed verdict motion, from which judgment plaintiff appeals.

BACKGROUND

Plaintiff purchased the subject ML 320 from Mark Motors, Inc., a Mercedes-Benz dealership, for an amount totaling $45,327. Defendant's written "Basic Warranty" for the ML 320 provided coverage for either a 4-year period or 50,000 miles of service, in which the dealer would "repair any defective parts in accordance with the terms of such warranties within the stated limits." Defendant's limited warranty states:

"Mercedes-Benz of North America, Inc. (MBNA) warrants to the original and each subsequent owner of a new Mercedes-Benz truck that any authorized Mercedes-Benz truck dealer will make any repairs or replacements necessary, to correct defects in material or workmanship. This warranty includes any accessory or equipment thereon manufactured or supplied by Daimler-Benz A.G., Mercedes-Benz U.S. International, Inc. (MBUSI), Mercedes-Benz Services International, Inc. (MBSI), or MBNA."

Defendant's warranty documents also provide that "[t]he implied warranties of merchantability and fitness for a particular purpose are limited to 48 months or 50,000 miles from the date of initial operation, whichever event shall first occur."

On October 11, 2000, plaintiff filed a three-count complaint in which he alleged that, as a result of the ineffective repair attempts made by defendant and Mark Motors, the ML 320 could not be utilized for personal, family and household use as intended by plaintiff at the time of acquisition. Plaintiff alleged that, after he took possession of the vehicle on December 18, 1998, he began to experience various defects that substantially impaired the use, value and/or safety of the ML 320. Specifically, plaintiff averred that Mark Motors and/or an authorized Mercedes-Benz service dealer failed on five attempts to repair a fuel gauge that did not register the correct amount of gas in the vehicle's fuel tank. According to plaintiff, these defects and others violated the implied warranty of merchantability and the express written warranties issued by defendant for the ML 320, as alleged in counts I and II of the complaint. Plaintiff alleged revocation of the acceptance of the ML 320 in count III.

On December 22, 2000, plaintiff responded to defendant's opinion witness interrogatories, in which he stated, "[p]laintiff has not yet retained the services of an opinion witness, but reserves the right to do so in the future." On January 16, 2001, plaintiff answered defendant's first set of interrogatories, wherein he did not list himself as a fact or opinion witness.¹ A July 10, 2001, letter addressed to defense counsel from plaintiff's attorney stated that "Plaintiff will testify at arbitration and/or trial about the matters alleged in Plaintiff's complaint and all documents produced to Defendant by Plaintiff during the course of discovery."

At the commencement of trial on April 28, 2003, defendant moved in limine to bar plaintiff from calling any fact or opinion witness not properly disclosed pursuant to Supreme Court Rule 213 (177 Ill.2d R. 213). Defendant argued that it would be prejudiced severely if plaintiff were allowed to present undisclosed fact or opinion witness testimony because defendant did not have an opportunity to respond to the testimony of any witnesses other than those properly disclosed by plaintiff. The circuit court granted defendant's motion in limine without objection.

Plaintiff testified on direct examination at trial that, prior to purchasing the vehicle, he test-drove it and noticed no problems. Plaintiff bought the ML 320 because, at that time, it was being advertised heavily as an excellent vehicle and Mercedes-Benz had the best reputation as an automobile manufacturer.

Plaintiff testified that Mrs. Kim was the primary driver of the ML 320 and that she utilized the vehicle to commute to work, driving 100 miles per day. Although plaintiff did not remember the exact date problems began to occur, he stated that four to five months after he purchased the ML 320, Mrs. Kim informed him that when she filled up the vehicle's fuel tank, the fuel gauge would not register the correct amount of fuel. Plaintiff noticed that the fuel gauge did not move after it reached the one-quarter gauge mark, even though the vehicle was filled completely with fuel. Plaintiff took the ML 320 to Mark Motors to fix the problem, but it reoccurred several months later. Plaintiff testified that he experienced the problem five or six times.

Plaintiff also described additional problems regarding different parts of the vehicle that required repair. He stated that, during the winter, the window would not roll up and that there was excess noise from the shifter. The window was out of order three times, the seat belt malfunctioned and the electric charger was not working. Plaintiff stated that either he or his wife brought the vehicle to Mark Motors for routine maintenance, such as oil changes, and that he bought the highest grade-level fuel.

Previously, plaintiff purchased three new cars and two used cars from dealerships. Before buying the cars, plaintiff researched prices to determine a fair price. Plaintiff's counsel then inquired, "[B]ased upon the problems you've experienced with the ML-320, what would you have agreed to pay for this vehicle had you known the problems?" Defense counsel objected to this line of questioning, upon which a sidebar was held outside the presence of the jury.

Defense counsel argued that plaintiff "at no time during the course of discovery disclosed that [he] would be providing valuation testimony to this court or to this jury" and that the valuation testimony amounted to an opinion. Defense counsel reminded the circuit court that it granted a motion in limine to exclude evidence of damages not disclosed. Defense counsel also asserted that plaintiff failed to lay a proper foundation that would allow him to testify "that this vehicle at the time he bought it back in 1998 had a value of X dollars." Defense counsel noted there was no evidence to show that, based upon the fact plaintiff tried to obtain a discount when he purchased the vehicle, he could testify that the vehicle was worth less than what he paid for it.

Plaintiff's attorney responded that Illinois authority supports that an owner of a product is competent to testify about the diminished value of a vehicle pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 U.S.C. § 2301 et seq. 2000). Plaintiff's attorney further argued that "the new Rule 213 was much more lenient" and that "[w]e have disclosed that [plaintiff] will be testifying about all of the problems and the defects and, et cetera, with the vehicle." Plaintiff's attorney also stated that plaintiff was not tendered as an expert, but that he was disclosed as testifying regarding any matters as alleged in his complaint.

The circuit court sustained defendant's objection, finding that no foundation was laid demonstrating plaintiff was a competent witness to testify as to the diminished value of the vehicle and that plaintiff's testimony had not been disclosed. The court stated that plaintiff could testify as to "what his state of mind was or what his feelings were in terms of what it is that he would pay for the vehicle," which was separate from testifying as to the value of the vehicle. The court also questioned plaintiff's attorney regarding the relevancy of plaintiff's testimony with respect to what plaintiff would have paid for the vehicle. Plaintiff's attorney responded that "we have to show that [plaintiff], because of the defects and because of the problems he had, he would have paid less for the vehicle. If he's going to testify he would have paid less for the vehicle, that's right on point." The court again sustained defendant's objection.

Plaintiff also testified regarding his claim for aggravation and inconvenience. He explained that, after buying the best-rated car in the world and paying so much money, he kept experiencing numerous problems. He stated that his family could no longer depend on the vehicle and that he could not drive the vehicle to Florida or New York with his family, as he had planned.

On cross-examination, plaintiff testified that each time he tendered the vehicle for repairs, Mark Motors provided him with a loaner vehicle free of charge. Plaintiff clarified that the fuel gauge reflected fuel filled to three quarters of a tank rather than one quarter. After plaintiff filed his complaint, he never brought the vehicle to the dealership for repairs to the fuel gauge. Plaintiff testified that, at the time of trial, the ML 320 had been driven 90,000 miles and that he and his wife continued to drive the vehicle.

Following plaintiff's testimony, plaintiff moved for mistrial, based on the circuit court's refusal to allow him to testify "as to the value of the vehicle or the diminished value of the vehicle" pursuant to Illinois authority establishing that an expert is not required to prove diminished value and that the owner of a product is competent to testify on that subject. The court denied plaintiff's...