No. 2--05--1198 filed: 10/26/06

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ JOANN M. COGLEY, ) Appeal from the Circuit Court ) of Du Pa ge Co un ty. Plaintiff -Appella nt, )

) v. ) No. 05--AR--1374 ) DAIML ERCHRYSLER CORPORATION ) and ELMHURST DODGE, I NC., ) Honorab le

) Terence M. Sheen, Defend ants-App ellees. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ JUSTICE McLA REN delive

red the o pinion of t

he court : OnApril 20, 2005, plaintiff, J oann M . Cogl ey , filed a three- count com

plaint in th e circu

it court of Du Page Cou

nty agains tdefendants, DaimlerChry sler Corporation (DaimlerChry sler) and Elmhurst Dodg e, I

nc. (Elmh urst Dodge), see

king re lief unde

r the Mag nuson-Mos s Warran

ty -Federa l Trade Commission I

mproveme

nt Act (th e Magn

uson-Moss

Act) (15 U.S.C. §2301 et seq. (2000) for breach of express and implied warranties on a motor vehicle manufacture d by DaimlerChry sler and sold to plaintiff by

Elmhurst Dodge. Defendants moved to dismiss pursuant to section 2--619(a)( 5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--61 9(a) (5) ( We st 2004)) on the basis that plaintiff had not fi led her c omplaint w ithin the a

pplicabl e four- ye ar limitat i ons period . The trial court granted the motion, and plaintiff brought this appea l. We affirm in part, reverse in part, and remand.No. 2--05--1198

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According

to her complaint, plaintiff purchased a Dodge Carava n from Elmh

urst Dodge on
or about Mar

ch 31, 200 0. The ve

hicle wa s sold with a

writte n limited wa rranty fr om the manufacturer. The war

ranty provided, inter ali a , a 3-y ear/36, 000-mile

"Basic Warranty " described, in pertine nt part, a s follows: "The Basic Wa

rranty covers t he cost of

all part s and labor needed to repair any defective item on your vehicle that wa s supplied by DaimlerChry sler Motors Corporation-- that is, defe ctive in ma

terial, workmansh

ip, or fa ctory prepar ation. The

re is n o list of covered parts since the on ly except ion i s tir es. Yo u pay noth ing for these repai rs. These
warran ty repairs or adjustments--includingall parts and labor connected with them--will be made by y

our dealer at no charge , using new or remanufactured pa rts." Plaintiff alleged that she began to experienc e various problems w iththe vehicle shortly a

fter the purchas e and tha

t, betwee n April 200 2 and Mar

ch 2005, she took the

vehic le to the "Manuf acture r's authorized agent/dealer, seller" for service on at least nine occ asions. Ei ght of those visits related to problems with the vehicle's serpentine drive. CountIof plaintiff's complaint alleged that defe ndants breached the written warranty . Count II allege d that def

endantsbreached an impl ied warr anty of merchantabil ity

under section 2--314 of the Uniform Commercial Code (UCC) (8 10 ILC S 5/2--314 (West 2004)). Count II I alleged tha t plaintiff had revoked acceptance of the vehicle. Pla intiff argues on appeal that the trial court e rred in dismissing counts I and I II of he r complain t. She does not

challenge the dismissal of the claim for breach of an implied warra nty of mercha ntability (count II ). W e begin o

ur analy sis by noting that an ord

er gra nting a m otion to dismiss under section 2--619 of the Code is reviewed de novo
. Zahl v. Krupa , 365 Ill. App. 3d 653,No. 2--05--1198

-3-

658 (2006). Turning to the merits, we o bserve t hat t he Mag nuson-Mos s Act "w as desig ned to protect consumers from decep tive warranty practices by

establishing standards for the form and content of written warrant ies." Ly sek v. Elmhurst Dodge, Inc
. , 325 Ill. App. 3d 536, 539 (2001). The Magnuson-Moss Act also provides that a cons umer w ho is damaged by a warrant or's failure to comply with an obligation under the Act or under a written or implied warranty may bring

a suit for damag es and other

legal and equitable relief. 15 U.S.C. §2310(d)(1) ( 2000). The action may

be brought in state court or, if the amount in controve rsy reaches a certain level, in fe deral court. 15 U.S.C. §2 31 0( d) (1 ), (d )( 3) (2 00 0) . F or pu rp os es of th e M ag nu so n- Mo ss Ac t, "w ri tt en wa rr an ty"
means: "(A) any written af firmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buye

r which relates to the nature of the material or workmanship and affirms or promises that such mate rial or
wor kmanship is defect free or will meet a specif ied level of performance over a specified period of time, or (B) any underta

king in writing in connection with the sale by a supplier of a
consumer p roduct to

refund, repair , replac e, or tak e other r emedial a ction with respect to such product in the event that such product fails to meet

the specifications set forth in the undertaking, whichwrittenaffirmation, promise, or undertaking becomes pa rt of the basis of the barg ain betwee n a supplie

r and a bu ye r for pur poses othe

r than re sale of s

uch prod uct." 15 U.S.C. §2301(6) (2000).No. 2--05--1198

-4-

There is a split of authority among the divisions of the First District on the question of when the statute of

limitations

begins t o run on a Magnus on-Moss A ct claim based on the sort of written
warran ty at issue in this case--one in which a manufacturer or seller promises to repair goods rather than (or i n addition to) promising that they ar e free from defects or will perf orm in a certain wa

y . In Cosman v. Ford Motor Co. , 285 I ll. App. 3d 250 (1996), the fourth division considered the timelines s of a Magnuson-Mos s Act claim by the purc hasers of a motor home covered by two
warran ties. One of the warranties was a 6-y ear/60,000-mile written

limited wa

rranty that provided,

" 'Ford warran ts that y our sellin g deale r will rep air, re

place, or adjust a

ll parts ( expect [ sic ] tires) that
are found to be d efective in fact ory-supplied mater ials or work manship.' " C osm an , 285 Ill. App. 3d at 257. The plaintiffs purchased the motor home in S ept ember 1989 and first experienced proble ms wi th it in June 1990. After repeated unsuccessful attempts by the dealer to repair the problems , the plaintiffs filed suit in April 1994. The trial court conclude d that a Ma

gnuson- Moss Act claim is su

bject to the four- ye ar statut e of limita

tions set f orth in se ction 2-- 725 of the UCC, which pr ovides: "(1) An action

for breach of any

contract for sale must be commenced within 4 years after the cause of action

has accrued. By

the original agreement the pa rties may reduce the period of limitation t

o not less than one y

ear but may

not extend i

t. (2) A cause of action accrues whe n the breach occurs, re ga rdless of the aggrieved party's lack of knowledge of the brea ch. A breach of warr

anty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods a

nd discove

ry of the br each mus t await th e time of such performance the cause ofNo. 2--05--1198

-5-

a ctionacc rue s wh en t he b rea ch i s or sho ul d ha ve b een di sco ver ed. " 81 0 ILC S 5/2--72 5 (West 2004). The trial cour

t in Cosman reasoned that the cause of action ac crued upon delivery of the motor home to the plaintiffs in September 1989 an d t ha t t he ir su it fi le d i n A pr il 19 94 wa s u nt im el y. The appellate court

observe d that "[t]h e proble m with this analy

sis and dis

position is i

mmediate ly appare nt: the [plaint

i ffs] are holding warrant ies that ha

ve not expir

ed, but ar e unable to lega lly enforce them." Cosman , 285 Ill. App. 3d at 253. The Cosman court agreed with the trial court that section2--725 w as the ap

plicable statute of limitations. However, the court disagreed with the trial court's conclusion as to when the cause of a ction accrued. The Cosman court obs erved that, because the Magnuson-Moss Act does not include a statute of limitations, federal common law dictated that courts apply the state statute of

limitations for the state law cause of action most analogous to the Mag nuson-Moss Act claim. Cosman , 285 Ill. App. 3d at 255 , citi ng DelCostello v. International Brother hood of Teamsters , 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). The Cosman court conclud ed that a claim for the brea ch of a sa le contract was most analogous to the plai ntiffs' Magnuson-Moss Act claim. Nonetheless, the court reasoned that the plaintiffs' claim was not for a breach of warr anty within the

meaning of the UCC and therefore the rule gover

ning the accrual of breach of warr anty claims (a s di stinguished from other br each of contract claims)did not app ly. Under the UCC: "(a) Any aff

irmation of fact or promise made by the seller to the buyer

which relates to the goods and

becomes part of the basis of the barga in creates an

express warranty

that the goods shall conform to the affirmation or promise.No. 2--05--1198

-6- (b) Any descr

iption of the goods which is made part of the basis of the bargain creates an express warranty

that the goods shall conform to the description. (c) Any samp le or mode l which is made par t of the ba sis of the b argai n creat es a n express warranty

that the whole of the goods shall conform to the sample or model." 810 IL CS 5/2--313(1) (West 1994). Thus, th e d ef

in it io n o f " ex pr es s w ar ra nt y" under the UCC is narrower than the definition of "written
wa rr an ty" under

the Magnuson-Moss Act. The former rela tes to the quality or perf

ormance of

goods, whereas the latter also extends to promises to repair the goods. The Cosman court not ed that a mere promise to repair goods did not f it within the UCC definition of a warranty. A lthough such a promise "relates to the goods," the g oods cannot "conform" to the promise. Cosman , 285 Ill. App. 3d at 259 ; accord 1 F. Miller, Hawkland Uniform Commercial Code Series §2--313:4 (2002) ("expre ss warranties relate exclusively to quality, description, and title of the goods and have nothing to do with the other terms of the c ontra

ct") . (We will sometimes refer to a UCC-type warranty as a "quality warranty " and a written promiseto repair as a "repair wa rranty." ) Cosman held that the four-y ear limitations

period f or an action on a r

epair wa rranty begins t o run whe n that promise t o repair is breac hed, not o n the date

of delive ry of the g oods. In Nowalski v. Ford Motor Co. , 335 I ll. App. 3d 625 (2002), the third division of the Firs t District rejected the Cosman court's analy sis. The Nowalski court agreed that the UCC statute of limitations was applicable to a promise to repair a vehicle, but he ld that the statut e of limitations began to runupon delivery of the vehicle. Unlike the 6-y

ear/60,000 mile warranty

in Cosman , the
warran ty in Nowalski was for 3 ye ars o r 36,000 miles. The Nowalski court obs erved that this warranty--unlike the one in Cosman --did not extend past the four-year limitations period. NowalskiNo. 2--05--1198

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reasoned that Cosman read paragraph (2) of section 2--725 of the UCC, which stated that "[a] breach of warran ty occurs when tender of delivery is made," out of existence. 810 I LCS 5/2 --725 (2 ) (West 2004). The Nowalski court accused the Cosman court of engaging in "creative editing, unsupported by statute or decisi on." Nowalski , 335 Ill. App. 3d at 632. Most recently, the

fifth division of the First District confronted the issue, in Mydlach v. DaimlerChrysler

Corp. , 364 Ill . App. 3d 135 (2005), leave to appeal granted , No. 102588 (September 27, 2006). The Mydlach

co urt agreed with the reasoning in Cosman and rejected Nowalski . The Mydlach court reasoned: "[C]ontrary

to the Nowalski court's assertion, C osman does not read section 2 --725(2) of the UCC out of existence. Rather, Cosman recog nizes that s ection 2- -725(2) , which is based up on a defin ition of 'warranty ' that does not include promises to repair, is not applicable i n light of th e provisio ns of the Act ." Mydlach , 364 Ill. App. 3d at 148. We agree with the reasoning in Cosman and Mydlach . Repair war ranties (which are warranties under the Magnuson-Moss Act but not the UCC) are differ ent from quality war

r antie s (which are wa rrantie s under bo thstatutes) . The abo ve passa ge from Mydlach

cogently identifies the flaw in Nowalski 's reaso ning. Inthis case, the trial court did not reach its dec is io n b y c hoosing among the First District decision s. Rather, it concluded that it was bound by this cour t's dec ision in Nelligan v. Tom Chaney Motors, Inc. , 133 Ill. App. 3d 798 (1985). I n Nelligan , the plaintiff alleg e d, in pertinent part, that in January

1977 she p

urchase d a Volksw agen Ra bbit: "[I ]nreliance on

advertisements, promises and warranties published by

defendants; that on
or about August 1978, plaintiff discovered theve hicle wa s defec tive, unso und and wh

ollyNo. 2--05--1198

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unfit for the use for

which it was purchased in the following manners: (a) faulty and defective emission control system; (b) fa ulty and defec

tive engine; (c) faulty

and defective carburetor; and (d) faulty a

nd defective repair; that

plaintiff retained the motor vehicle on the assumption that defendants would repair or cure the de fects; and that in coope rating

with defe

ndants, pla intiff returned the motor vehicle on numerous occasions at plaintiff' s expense an d defenda nts failed to rep air, fix an d cure the defect ive product ." Nelligan , 133 Ill. App. 3d at 800. No written warranty

was attached

to the com

plaint. The defen

dants suc cessful ly moved to dism iss
on th e b as is th at th e l aw su it , f il ed in No ve mb er 19 83 , w as un ti me ly. Onappeal, the plaintiff in Nelligan argue d that the

statute of limitations did not bar her breach of warranty

claims, "because the breach of warranty was discovered within the fou r-yea r period be fore plaintiff filed suit and did not occur when tender of delivery was made in 1977, as there was never a confo rming tender o f delivery." Nelligan , 13 3 Il l. App. 3d at 801. This court rejected the argument, noting

that the language of the UCC "c learly prosc ribes the application of the discovery rule in breach of warrant y cases" ( Nelligan , 133 Ill. App. 3d at 802), and that holding that only a "conforming delivery " triggers the statute of limitations "would lead to the absurd result that the period of limitations never begins to run in cases such as this where a plaintiff ta kes delivery a

nd retains possession of

goods for a considerable period of time before notify

ing the s eller of

possible defect s" ( Nelligan , 133 I ll. App. 3d at 802). Thi s court a

lso rejected the plaintiff's arg ument that the warranties guara

nteed fu ture per formanc e of the v ehicle

so that, under section 2--725(2), the caus e of action d id not accrue until the breach was discovere d. This court noted that the statutory discovery provision applies only when there has been an explicit

guarantee of future pe

rformance.No. 2--05--1198

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Becau se the plaint if

f had not a

ttached a copy of a writ ten warr anty , she cou

ld not pre vail on this basis. This cour

t further held that a warra ntor's a ttempts to r

epair a defective product

do not extend the warr anty to future performance. However, this court had no occasion to consider the question raised in the present appeal: when does a cause of action on a repair

warran ty accrue? The plaintiff in Nelligan

did not claim t

hat her l awsuit wa s based on a repai r warra nty , and ther

e is nothing in our recitation of th e f ac ts of th e c as e t o s ug ge st th at a r ep ai r w ar ra nt y wa s a t i ss ue . A cc or di ng ly, Nelligan does not govern

the disposition of

the issue before this court, and the trial court's re liance
on Nelligan

was misplaced. Defend ants' reliance ontwo other decisions-- Jones v. Ford Motor Co. , 347 Ill. App. 3d 176 (2004), and Ridle v. Spray rite Manufacturing Co. , 198 Ill. App. 3d 597 (1990)--as support for the trial court's ruling

is similarly misguided. The issue in Jones --whether the plaintiff had established
a basis f or equitabl e tolling of the statute of limitations during the pendency of an arbitration proceeding--hasno bearing on the question raised in this case. Ridle is also inapposite. The two issues in thatcase were (1) whether te nder of delivery

of a crop spray

er occu rred wh en it was i

nitially delivered to the buyer or w

hen it was redelivered to the buy er after having

its engine rebuilt; and (2) whether the seller had

made any e

xplicit warranty conce

rning future performance

of the eq uipment. Like Nelligan , Ridle does no t addres s the ques tion of whe n a cause of actio n on a rep air war ranty
accrue s. Defendants argue that the Mydlach court erred in concluding that the statut e of limitations does not begin to run until a manufacturer has a re asonable opportunity to cure a defect in the product. We need not decide the issue, however. Even assuming the statute of

limitations begins to run when

a product is first bro

ught in f or repa ir, plaint iff's r epair wa rranty claim wou

ld be ti me ly.No. 2--05--1198

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Here, plaintiff alleged that she first took the vehicle in for r epair in Apr il 2002. Accordingly , her lawsuit filed in April 2005 was within the four-y ear limitations period. Defend ants also contend that

the warr anty in questio n was only

a "limite d warra

nty " within the m eanin g of the Magnuson-Moss Act and was the refore not subject to the statute's minimum requirements for "full warranties." See generally 15 U.S.C. §2303(a), 2304 (2000). Accord ing to defenda nts, in cases arising under limited warranties, the Mag nuson-Mos s Act ser ves only as a "condu it" for claims arising under state law. Even if this statement is true, we fail to see how it has any bea ring on the question of when the statute of limitations begins to run. As seen, all of the relevant Illinois decisions are in agreement that the Mag nuson-Moss Actborrows

the UCC' s statute of limitations. This would appear to be true whether state law or federal law governs the substanc e of the claim . In other words, for statute of limitations purposes, it should make no difference whether the Magnuson-Moss Act provides the substantive law or merely serves as a conduit for a state law claim. Defend ants also comp lain that Cosman and Mydlach incorrectly

held that the portion of section2--725(2) of the UCC providing that "[a] breach of wa rranty oc curs when tender of delivery is made" i s inapplic able to a limi te d warra

nty . 810 ILCS 5/2 --725(2 ) (West 200 4). Neither case stands for that p

roposition . As previously discusse d, both ca ses held t hat a re pair war ranty is not a "w ar ra nt y" within the meaning of the quoted languag e. In other word s, the ope rative d istinction in Cosman and Mydlach

is not betwee n full war

ranties a nd limited warrant

ies, but be

tween re pair
warran ties and q uality warran ties. Defend ants also make the astonishing claim that Mydlach erred in holding that a private right of action exists under t

he Mag nuson-Mos s Act. De fendant s contend that the holding isNo. 2--05--1198

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"unprecedented

and *** nonsensica

l" and is not s

upported by " a scintill a

of authority." The assertion is nothing short of a

bsurd. Se ction 2310 (d)(1) of the Ma gnuso n-Moss Ac t plainly states that "[s]ubjectto subsections (a)(3) and (e) of this section, a

consumer who is damaged by the failure of
a supplier, warrantor, or service contra ctor to comply with any

obligation under this chapter, or under
a written warranty , implied warranty, or service contract, may

bring suit for damages and other lega l and equitable relief." 15 U.S.C. §2310(d)(1) (2000). Subsection (a)(3) requires resort to informal dispute settl ement proced ures p rior t o fili ng a lawsuit in some circ umstance s. 15 U.S.C. §2310(a)(3) (2000). Subsection (e) re quires a plaintiff to give a warran tor a re aso na ble opportunity to cure a breach of a warranty befor e filing

a lawsuit other tha n a class action su it or a law suit subjec

t to subsection(a)(3). 15 U.S.C. §2310(e) (2000). The Mag nuson-Moss Act clearly

perm it s an aggr ieved consumer to

file a la wsuit unde

r its auspi ces. Inview of the foregoing, the tria l court erred in dismissing plaintiff 's writt en warr anty claim (count I) as untimely . Count III of her c omp laint seeks the remedy of revocation of acceptance based, at leas t in par t, on the breach of the written warranty . Because counts I and II I involve the
same underlying

breach, the same

st at ut e o f l im it at io ns an al ysi s a pp li es to bo th co un ts . A cc or di ng ly, th e tr ial cou rt e rre d i n di sm is si ng c oun t III. For the foregoing reasons, we affirm the dismissal of

count I I of p laintiff

's compl aint, re

verse the dismiss al of cou

nts I a nd II I, a nd reman d the cau se for f

urther proceed

ings. Affirmed in part and reversed in part; ca use remanded. BOWMAN and BYRNE, JJ., concur.