Pearson v. DaimlerChrysler Corp.

• Decision Date: 31 March 2004
• Docket Number: No. 1-02-3402., No. 1-02-3051
• Citation: 286 Ill.Dec. 173,349 Ill. App.3d 688,813 N.E.2d 230
• Parties: Shannon PEARSON, Plaintiff-Appellant, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee, Anthony Zenari, Plaintiff-Appellant, v. DaimlerChrysler Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

813 N.E.2d 230

349 Ill. App.3d 688

286 Ill.Dec. 173

Shannon PEARSON, Plaintiff-Appellant, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee, Anthony Zenari, Plaintiff-Appellant, v. DaimlerChrysler Corporation, Defendant-Appellee.

Nos. 1-02-3051, 1-02-3402.

Appellate Court of Illinois, First District, Fourth Division.

March 31, 2004.

Rehearing Denied July 12, 2004.

As Modified Upon Denial of Rehearing July 22, 2004.

Krohn & Moss, Ltd., Chicago (Adam J. Krohn, Gregory H. Moss and Scott M. Cohen, of counsel), for Appellants.

Sanchez & Daniels, Chicago (Timothy V. Hoffman and Andrew P. Rice, of counsel), for Appellee.

Justice HARTMAN delivered the modified opinion of the court upon denial of rehearing:

In docket number X-XX-XXXX, 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 X-XX-XXXX, 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.

Docket No. 1-02-3402

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, 253 Ill.Dec. 504, 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.

Docket No. 1-02-3051

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 replace any defective part within three years or 36,000 miles.

Pearson filed a complaint alleging breach of express written warranty, breach of implied warranty, and revocation of acceptance under the Act. Pearson alleged that she brought the Voyager to defendant's authorized service dealer on several occasions for various defects, "including but not limited to: a. Defective air conditioning system * * *; b. Defective fuel system as evidenced by poor fuel mileage * * *; c. Defective steering system as evidenced by noise and vibration emanating from the steering column * * *; and d. Defective electrical system as evidenced by the radio malfunctioning, inoperable windows and the childproof locks malfunctioning." Pearson further alleged that "[a]fter a reasonable number of attempts to cure the defects and nonconformities * * * [defendant] was unable and/or has failed to repair the defects, as provided in [defendant's] warranty."

The repair records, depositions of Pearson and her fiance Jeffrey Parenti, and the reports of Pearson's and defendant's experts reveal the following facts:

Pearson first sought repairs to the steering system on July 17, 2000, when she complained of a noise emanating from the steering column-dash area. On July 25, 2000, Pearson again sought repairs because the steering column began to "pull and jerk to one side." The Voyager was again brought in on November 9, 2000, because the steering was pulling left. Pearson testified via deposition that at the time of her deposition on February 28, 2001, she had just noticed the steering pulling again. She testified at the September 27, 2001, arbitration, however, that the only problem she was still having with the Voyager was the poor gas mileage. Parenti testified via deposition that as of December 2000 or January 2001 there were no problems with the steering.

Pearson's expert, Phillip J. Grismer, stated in his report that while road testing the Voyager on November 4, 2000, he noticed a condition "consistent with a defective steering rack and pinion assembly, defective suspension geometry, defective ball joints, defective tie rod ends, defective strut assemblies." Defendant's expert, Dan Baker, inspected the Voyager on April 23, 2001 and found no problems with the steering.

Pearson described the poor gas mileage as an ongoing problem with the Voyager. She sought repairs for that problem on May 3, 2000, July 17, 2000, July 25, 2000, October 10, 2000, November 9, 2000, and January 29, 2001. Parenti stated that the poor gas mileage was the only remaining problem with the Voyager as of January 2001. Grismer concluded that "the fuel consumption of this vehicle can be proven to a very poor 12 miles per gallon. This condition is consistent with defective engine, defective transmission, defective engine management system, defective fuel system, defective ignition system." Baker stated in his report that "the mileage obtained during the road test was within 10% of the EPA highway rating. This vehicle is capable of obtaining the EPA ratings published by the EPA." He testified at the arbitration hearing that the EPA estimated mileage for this vehicle was 18 miles city and 25 miles per gallon highway. He further stated that based upon his tests the Voyager complied with the EPA estimated mileage.

Pearson sought repair of the Voyager's air conditioning system on May 3, 2000, July 17, 2000, July 25, 2000, and October 10, 2000. Grismer stated in his report that "the air conditioner system performed without criticism during the inspection." Baker stated in his report that "the a/c system functioned normally."

Pearson also sought repairs at various times for problems with the child locks not disengaging, the driver's side window not rolling up, the radio, and the passenger window sticking. Pearson testified that after the July 25, 2000 repair visit there were no further problems with the radio. She further stated that as of the date of her deposition there were no problems with the radio, the windows, or the child locks. Parenti testified that as of January 2001, the only remaining problem with the Voyager was the poor gas mileage.

Pearson sought repair of the brakes on October 10, 2000, November 9, 2000, and January 29, 2001. At the time of her deposition, Pearson stated that the brakes were still a problem, but a few months later at the arbitration hearing she stated that the only remaining problem with the Voyager was the poor gas mileage. According to Parenti, as of January 2001, there was no problem with the brakes. Baker found no problem with the brakes. Grismer found that "the brake system pulsates while stopping and exhibits a loud grind noise from the front wheels, that is present during most brake applications. The brakes exhibit a constant pulsation in the brake pedal and a vibration throughout the vehicle as a result of the pulsation, when braking."

Pearson stated that all repairs were paid for by the warranty. Parenti stated that he and Pearson use the Voyager on a regular basis. Pearson drives the car 150 miles round-trip to work two or three times per week.

Defendant successfully moved for summary judgment. On September 4, 2002, the circuit court entered an order stating:

"IT IS HEREBY ORDERED:

1) That this matter is entered and continued;

2) That the court finds that [Pearson's] vehicle has no existing defects that are stated in complaint or of which have been brought in for service except for complaint regarding fuel mileage which this court has determined is not a defect;

3) That the court reserves ruling regarding whether six (6) repair visits or attempts to repair is considered or deemed to be reasonable or if that is an issue that shall be determined by a jury; and

4) This matter is set for hearing on item # 3 (above) on

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