White v. Daimlerchrysler Corp.

• Decision Date: 26 September 2006
• Docket Number: No. 1-04-2945.,1-04-2945.
• Citation: White v. Daimlerchrysler Corp., 368 Ill. App. 3d 278, 856 N.E.2d 542, 305 Ill.Dec. 737 (Ill. App. 2006)
• Parties: William L. WHITE and Samuel J. Riolo, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. DAIMLERCHRYSLER CORPORATION, a Delaware corporation, Defendant-Appellee.
• Court: Appellate Court of Illinois

856 N.E.2d 542

368 Ill. App.3d 278

305 Ill.Dec. 737

William L. WHITE and Samuel J. Riolo, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. DAIMLERCHRYSLER CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 1-04-2945.

Appellate Court of Illinois, First District, Second Division.

September 26, 2006.

Marvin A. Miller, Nyran Rose Pearson and Dom J. Rizzi, Miller Faucher and Cafferty LLP, Chicago; William R. Kane, Miller Faucher and Cafferty LLP, Philadelphia, PA; and Clyde C. Greco, Jr., Philip M. McKenney and Bay Baniadam, Greco Traficante & Edwards, San Diego, CA, for Appellants.

Kathy A. Wisniewski and John W. Rogers, Bryan Cave LLP, St. Louis, MO; and Todd A. Rowden, Law Offices of Todd A. Rowden LLC, Schaumburg, for Appellee.

Presiding Justice WOLFSON delivered the opinion of the court:

Plaintiff William L. White filed suit under the Illinois Consumer Fraud Act ("the Act"), 815 ILCS 505/1 et seq. (West 2000), contending defendant DaimlerChrysler Corporation knowingly concealed a material defect in his Jeep vehicle and in the vehicles of similarly situated class members.¹ He alleged exhaust manifolds installed in the vehicles failed at "unacceptably high rates."

Defendant filed a motion to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 2000). Defendant contended: (1) plaintiff failed to allege facts establishing a duty on the part of defendant; (2) plaintiff lacked standing to bring his consumer fraud claim, to represent the class, and to request declaratory relief; (3) plaintiff's claims were barred by the statute of limitations; and (4) plaintiff's consumer fraud claim lacked the requisite specificity for a claim under the Act.

The trial court granted defendant's motion to dismiss. Plaintiff appeals dismissal of the Consumer Fraud Act claims, but not the claims for violation of the Magnuson-Moss Act and for declaratory relief. We affirm the trial court.

FACTS

In his amended complaint, plaintiff alleges, "on information and belief," he purchased his Jeep vehicle from Tyson Motor Corporation in July 1996. He contends the exhaust manifold in his Jeep was substandard and defective and remains so to this day. In paragraph 4 of the complaint, under the heading, "Parties to the Action," he says the "value of WILLIAM L. WHITE's Jeep is diminished by the defective exhaust manifold under its hood, and WILLIAM L. WHITE has been injured by that diminution in value." He says he was unaware of the substandard and defective nature of the exhaust manifold until shortly before his action was filed on November 17, 2003.

Plaintiff contends the "standard in the industry" for vehicles such as Jeeps is to use cast iron exhaust manifolds. From 1991 until early 1999, defendant began using less expensive tubular steel exhaust manifolds instead of the cast iron exhaust manifolds. Plaintiff specifically contends:

"9. * * *[e]xhaust manifolds in vehicles such as Jeeps generally do and are expected to last the lifetime of the vehicle, and consumers thus generally do not need to pay for repair or replacement of exhaust manifolds at any time during the life of their vehicles.

* * *

11. As early as 1991, Defendant knew that its cheaper, sub-standard tubular steel exhaust manifolds were prone to cracking and failure. However, rather than disclosing this information to consumers or changing its design, Defendant continued to install the crackprone tubular steel exhaust manifolds and concealed these facts from the public, thereby reaping excessive profits to the detriment of Plaintiff and the Class both by reducing the cost of goods sold (and thus increasing profits, gaining market share, and earning a higher profit margin on each VEHICLE sold) and by profiting from the sale of replacement exhaust manifolds.

12. The cracks in the VEHICLES' tubular steel exhaust manifolds result from thermal cyclic metal fatigue, whereby the pipes, which are made of tubular steel, are stressed beyond their elasticity as the manifold expands and contracts due to exhaust gas temperature changes during normal vehicle operation. A properly designed and engineered cast iron exhaust manifold would not fail as aforesaid.

13. * * * it usually costs between $800 and $1,600 to replace the cracked tubular steel exhaust manifolds in these VEHICLES, of which approximately $500 is the cost of the replacement part paid to Defendants.

14. Defendant knew as early as 1991 that the tubular steel exhaust manifolds:

(a) would not last as long as the conventional cast iron exhaust manifolds; and

(b) would fail at unacceptably high rates. Defendant has intentionally concealed these facts from Plaintiff and the Class and continues to do so to this day in order to sell replacement parts and increase profits. Because defendant has omitted and concealed material facts about the exhaust manifolds, members of the public were likely to have been deceived about the quality, performance, and durability of those manifolds.

* * *

34. As a result of Defendant's unlawful act or practice, Plaintiff has been injured in an amount to be proven at trial, and Defendant must be ordered to reimburse this amount to Plaintiff and be further enjoined from continuing to refuse to pay for the cost of repair or replacement of cracked exhaust manifolds."

Nowhere in the complaint does plaintiff contend the exhaust manifold in his Jeep has failed, nor has he had to pay to repair or replace the exhaust manifold.

The trial court granted defendant's motion to dismiss plaintiff's amended complaint. The record does not contain a transcript of the hearing on the motion to dismiss.

DECISION

Initially, defendant contends plaintiff has waived review of the trial court's dismissal because the court granted its motion to dismiss "in all respects," and plaintiff's brief fails to address each of defendant's bases for dismissal. See 188 Ill.2d R. 341(e)(7) ("Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.") We disagree. Plaintiff addresses the issues of duty, damages, and the statute of limitations and discusses the general pleading requirements under the Act. Plaintiff's discussion of damages addresses the gist of defendant's standing arguments.

Given the absence of a hearing transcript, we cannot be certain which factors the trial court considered when it dismissed plaintiff's complaint. The court apparently agreed with all of the defendant's contentions since it granted the motion to dismiss "in all respects." We do not find plaintiff waived review of any of the issues addressed by the defendant in its motion. That said, we may affirm the trial court's order on any basis appearing in the record. Cronin v. McCarthy, 264 Ill.App.3d 514, 529, 202 Ill.Dec. 129, 637 N.E.2d 668 (1994).

A section 2-615 motion to dismiss admits all well-pleaded facts and attacks the legal sufficiency of the complaint; a motion to dismiss under section 2-619 admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative matter that act to defeat the plaintiff's claim. Neppl v. Murphy, 316 Ill.App.3d 581, 584, 249 Ill.Dec. 736, 736 N.E.2d 1174 (2000). In reviewing a section 2-615 motion, we take as true all well-pleaded facts in the complaint and any reasonable inferences that may be drawn from it. Ziemba v. Mierzwa, 142 Ill.2d 42, 46-47, 153 Ill.Dec. 259, 566 N.E.2d 1365 (1991). However, we will disregard mere conclusions of law or fact not supported by specific factual allegations. Doe v. Calumet City, 161 Ill.2d 374, 385, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994). Our review of the trial court's dismissal under either section 2-615 or 2-619 is de novo. Neppl, 316 Ill.App.3d at 583, 249 Ill.Dec. 736, 736 N.E.2d 1174.

I. Consumer Fraud Act Requirements

The Act declares unlawful:

"[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in section 2 of the `Uniform Deceptive Trade Practices Act,' approved August 5, 1965, in the conduct of any trade or commerce * * * whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act." 815 ILCS 505/2 (West 2000).

To state a claim under the Act, a complaint must set forth specific facts showing: (1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the deception occurred in the course of trade or commerce; and (4) the consumer fraud proximately caused the plaintiff's injury. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 501, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). To bring a civil suit for damages, the Act requires that the plaintiff suffer "actual damages." 815 ILCS 505/10a(a) (West 2000). Plaintiff's reliance is not an element of statutory consumer fraud. Connick, 174 Ill.2d at 501, 221 Ill.Dec. 389, 675 N.E.2d 584.

An omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Pappas v. Pella Corp., 363 Ill.App.3d 795, 799, 300 Ill.Dec. 552, 844 N.E.2d 995 (2006), citing Connick, 174 Ill.2d at 504, 221 Ill.Dec. 389, 675 N.E.2d 584. A complaint alleging a consumer fraud violation must be pled with the same particularity and specificity as that required under common law fraud. Connick, 174 Ill.2d at 501, 221 Ill.Dec. 389, 675 N.E.2d 584.

Neither party disputes that the...