FIFTH DIVISION June 30, 2006
No. 1-04-3830
KEN MATTUCK, ) Appeal from the ) Circuit Court of Plaintiff-Appellee and Cross-Appellant, ) Cook County ) v. ) ) DAIMLERCHRYSLER CORPORATION, ) Honorable ) Gregory Wojkowski, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff Ken Mattuck sued defendant auto manufacturer DaimlerChrysler Corporation,
alleging breach of written warranty, breach of the implied warranty of merchantability, and
revocation of acceptance after he leased a 1999 Jeep Grand Cherokee and experienced braking
problems that were not resolved after several attempts at repair. Finding that defendant breached
the written and implied warranties, a jury awarded plaintiff $8,500 in damages. The trial court
later entered judgment for defendant on the remaining count of revocation of acceptance.
Defendant now appeals the jury=s verdict, contending that plaintiff leased the vehicle and
that no sale took place that would qualify plaintiff as a Aconsumer@ under section 2301(3) of the
Magnuson-Moss WarrantyBFederal Trade Commission Improvement Act (the Magnuson-Moss
Act or the Act) (15 U.S.C. '2301(3) (2000)). Defendant raises additional reasons that plaintiff
was not entitled to recovery for his claims of breach of the written or implied warranties. 1-04-3830
Plaintiff has cross-appealed, arguing that a portion of defendant=s appeal should be stricken for
lack of jurisdiction. For the reasons set forth below, we affirm.
BACKGROUND
On August 31, 1999, plaintiff leased a 1999 Jeep Grand Cherokee, manufactured by
defendant, from Automotive Leasing Corporation in Schaumburg. The lease was effective for 5
years and 6 months and allowed plaintiff to drive the vehicle 82,000 miles during that period.
Plaintiff received a written 3-year/36,000-mile, bumper-to-bumper warranty. Plaintiff testified
that he drove an average of 3,000 miles a month across Illinois, Wisconsin and Indiana for his
job as a manufacturing representative and that he logged most of his miles on the highway.
On March 6, 2000, plaintiff brought the vehicle, which had been driven 11,187 miles, to
a Jeep dealer for repair because the steering wheel would shake violently when he applied the
brakes. Although the front brake rotors were replaced under the warranty, the steering wheel
continued to shake. Plaintiff had the vehicle serviced again in May 2000, September 2000,
August 2001, September 2001 and May 2002, at which point he had driven it 84,707 miles. The
front brake pads and rotors were replaced twice, and the rear brake rotors were replaced on the
last service visit. Plaintiff continued to drive the vehicle for six months and another 13,000
miles.
Plaintiff paid for one repair himself (resurfacing the brake rotors); all other repairs were
covered under warranty. Plaintiff testified that at the time of trial, he still had possession of the
Jeep Cherokee and continued to make the monthly payments under the lease agreement.
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However, plaintiff said he no longer used the vehicle and that it was Asitting in [his] garage.@
After dismissing plaintiff=s initial complaint, the trial court granted plaintiff=s motion to
reconsider. Plaintiff filed a second amended complaint, alleging in count I that defendant
breached its written warranty under section 2310(d) of the Act (15 U.S.C. '2310(d) (2000)).
Count II of the complaint alleged that defendant breached the implied warranty of
merchantability as defined in section 2301(7) of the Act (15 U.S.C. '2301(7) (2000)). In count
III, plaintiff alleged that the Grand Cherokee=s substantial impairments entitled him to revoke his
acceptance of the vehicle under section 2310(d) of the Act (15 U.S.C. '2310(d) (2000)).
At trial, plaintiff presented the expert testimony of Thomas Walters, an ASE-certified
master technician with more than 20 years of automotive repair experience and training. In
November 2000, Walters inspected the Jeep Cherokee, which had been driven almost 35,000
miles. Walters reviewed the vehicle=s repair history and stated that the problem was caused by
the brake rotors and the way they were Amachined.@ Walters testified the vehicle=s value was
reduced by 40%, and on cross-examination, he stated that his opinion was based in part on the
Kelley Blue Book, which, according to Walters, is a guide to retail purchase value.
DaimlerChrysler presented the testimony of two automotive experts. Allan Loew, 1 an
ASE-certified mechanic for about 35 years who performed technical inspections for Chrysler for
1 Mr. Loew=s name is spelled differently in the report of proceedings and in defendant=s
brief. Because the witness did not spell his name for the record, we adopt the spelling used in
defendant=s brief.
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eight years, testified that plaintiff=s constant driving of the vehicle contributed to the brake
problems. Loew testified that he inspected and drove the vehicle at 45,000 miles and again at
about 70,000 miles and did not experience shaking in the steering wheel or brake pulsation.
Loew testified that the brake rotors on the Jeep were designed to last two years.
Dan Baker, a technical advisor for Chrysler for 30 years, testified that he inspected and
drove the Jeep Cherokee at about 87,000 miles and did not experience any brake pulsation or
steering wheel movement. Baker said the vehicle handled as he expected and that brake rotor
replacement is expected on high-mileage vehicles.
On June 2, 2004, the jury awarded plaintiff $8,500 in damages under counts I and II,
which was allocated as $6,000 for breach of warranty and $2,500 for aggravation/inconvenience.
The jury awarded no damages to plaintiff for loss of use of the vehicle. As will be explained in
more detail later in this opinion, the trial court entered a separate judgment for defendant on
count III (revocation of acceptance) more than three months after the jury=s verdict.
ANALYSIS
I. Jurisdiction
It is first necessary to consider plaintiff=s cross-appeal and his motion to strike portions of
defendant=s appeal because they challenge this court=s jurisdiction and, therefore, the court=s
ability to decide the underlying merits of the case. The crux of plaintiff=s cross-appeal is whether
defendant=s posttrial motion needed to be filed within 30 days of the jury verdict on counts I and
II, which was entered June 2, 2004, or within 30 days of when the court entered judgment on
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count III (revocation of acceptance) on September 8, 2004.
The trial court entered judgment on the jury=s verdict for plaintiff on counts I and II on
June 2, 2004. On August 12, the court awarded plaintiff $23,571.80 in attorney fees and costs.
On August 24, defendant requested an extension of time to file its posttrial motion, citing the
need to prepare a report of proceedings. On September 8, the trial court entered judgment for
defendant on count III (plaintiff=s revocation of acceptance claim). The court ordered defendant
to file its Apost-trial motion on all issues, including attorney fees, [within] 30 days, or by October
8, 2004, over plaintiff=s objection.@ Neither the record on appeal nor the report of proceedings
indicates why the jury did not reach a verdict on count III of plaintiff=s complaint, why the trial
court entered judgment for defendant on that count or why that judgment was entered more than
three months after the jury verdict on counts I and II. In any event, on October 7, 2004, within
the time frame set out in the trial court=s September 8 order, defendant filed a posttrial motion
challenging the verdict pursuant to section 2-1202 of the Illinois Code of Civil Procedure (the
Code) (735 ILCS 5/2-1202 (West 2000)).
Plaintiff now argues that defendant was required to file its posttrial motion, or seek an
extension of time to file such a motion, by July 2, 2004, i.e., within 30 days of June 2, 2004,
when the trial court entered judgment for plaintiff on counts I and II. Plaintiff cites section 2-
1202(c) of the Code, which states, in pertinent part:
APost-trial motions must be filed within 30 days after the entry of
judgment *** or within any further time the court may allow within the 30 days
or any extensions thereof.@ 735 ILCS 5/2-1202(c) (West 2000).
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Plaintiff concedes that the June 2 order was not appealable under Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)); however, he asserts that the June 2 order constituted a final
judgment as to counts I and II, despite the pendency of count III and plaintiff=s petition for
attorney fees. Defendant responds that section 2-1202(b) of the Code requires all relief to be
sought Ain a single post-trial motion@ and argues that its motion was timely because the final
judgment resolving all of plaintiff=s claims was not entered until September 8, 2004.
A final judgment is one that disposes of the rights of the parties either with regard to the
entire controversy or a definite or separate part thereof. Djikas v. Grafft, 344 Ill. App. 3d 1, 8,
799 N.E.2d 887, 893 (2003). However, a judgment is not final where the trial court reserves an
issue for further consideration or otherwise manifests an intention to retain jurisdiction for the
entry of a further order. Djikas, 344 Ill. App. 3d at 8, 799 N.E.2d at 893. The 30-day period for
filing of a posttrial motion as described in section 2-1202(c) begins after the court enters a final
judgment disposing of all of the issues in a case, even when a previous final judgment was
entered as to some counts. Kral v. Fredhill Press Co., 304 Ill. App. 3d 988, 994, 709 N.E.2d
1268, 1271-72 (1999).
Here, although the trial court=s order entering judgment on counts I and II of the
complaint was final on June 2, 2004, the trial court retained jurisdiction to decide the remaining
count and also to consider plaintiff=s petition for attorney fees and costs. Moreover, when
entering judgment on count III on September 8, 2004, the trial court allowed defendant 30 days
from that date to file its posttrial motion Aon all issues.@ Defendant filed its motion within that
time period. Therefore, defendant=s posttrial motion was timely, and this court has jurisdiction
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over defendant=s appeal.
II. Plaintiff=s Ability to Recover Under the Act as a Lessee
Defendant=s first contention on appeal is that plaintiff cannot recover under either
warranty theory set forth in his complaint because he leased the vehicle and therefore is not a
Aconsumer@ under the Magnuson-Moss Act.
The pertinent section of the Act lists these three descriptions of a consumer:
A[1] a buyer (other than for purposes of resale) of any consumer product,
[2] any person to whom such product is transferred during the duration of an
implied or written warranty (or service contract) applicable to the product; and [3]
any other person who is entitled by the terms of such warranty (or service
contract) or under applicable State law to enforce against the warrantor (or service
contractor) the obligations of the warranty (or service contract).@
15 U.S.C. '2301(3) (2000).
Although more than one definition may apply in a particular case, a person must only
meet one of those three criteria to qualify as a Aconsumer@ under that section. Mangold v. Nissan
North America, Inc., 347 Ill. App. 3d 1008, 1010, 809 N.E.2d 251, 253 (2004); Dekelaita v.
Nissan Motor Corp. in USA, 343 Ill. App. 3d 801, 807, 799 N.E.2d 367, 370 (2003).
Defendant argues that all three options require that a Asale@ occur, and no Asale@ took
place here because plaintiff leased the vehicle from Automotive Leasing Corporation. Plaintiff
does not challenge defendant=s assertion that the first definition of Aconsumer@ expressly requires
a Abuyer@ and therefore does not apply to him as a lessee; rather, the parties= arguments center on
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the second and third definitions of Aconsumer.@
This court has rejected defendant=s position and held that a lessee of a vehicle meets the
definition of a Aconsumer@ under the second or third description in section 2301(3). In
Dekelaita, 343 Ill. App. 3d at 807, 799 N.E.2d at 370, the court described the three definitions, in
order, as describing a Abuyer,@ a Atransferee@ and someone Aotherwise entitled to enforce a
warranty.@ Dekelaita held that a lessee could meet the second definition of a Aconsumer@
because the vehicle was transferred to the lessee during the duration of the implied or written
warranty, although Dekelaita noted that some courts have excluded lessees from that category
because in a lease agreement, no transfer of title occurs. Dekelaita, 343 Ill. App. 3d at 808, 799
N.E.2d at 371, citing, inter alia, DiCintio v. DaimlerChrysler Corp., 97 N.Y.2d 463, 768 N.E.2d
1121, 742 N.Y.S.2d 182 (2002). Dekelaita held that even if the second definition did not apply,
a lessee would qualify as a Aconsumer@ under the third alternative, which the court described as a
Acatch-all provision@ that only requires the existence of a warranty enforceable under state law.
Dekelaita, 343 Ill. App. 3d at 809, 799 N.E.2d at 372.
Additional Illinois cases have followed Dekelaita in holding that a lessee of a vehicle
meets the definition of a Aconsumer.@ Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688,
699-700, 813 N.E.2d 230, 239-40 (2004); Mangold, 347 Ill. App. 3d at 1010-11, 809 N.E.2d at
253-54. While Pearson did not indicate which definition of Aconsumer@ it found applicable, the
court in Mangold stated that both the second and third alternatives applied. Mangold, 347 Ill.
App. 3d at 1010-11, 809 N.E.2d at 253-54. In Mangold, the plaintiffs leased an Infiniti from a
financial services company that bought the car from a Nissan dealer and alleged a breach of
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Nissan=s written and implied warranties after attempts to repair the car were unsuccessful.
Mangold, 347 Ill. App. 3d at 1009, 809 N.E.2d at 252. The court held that under the Magnuson-
Moss Act, the plaintiffs were entitled to enforce the warranty because the financial services
company transferred its warranty rights to the plaintiffs, thus satisfying the second definition of
Aconsumer.@ Mangold, 347 Ill. App. 3d at 1010-11, 809 N.E.2d at 253. For the same reason,
Mangold held that the plaintiffs also qualified as Aconsumers@ under the third, broader definition
in section 2301(3). Mangold, 347 Ill. App. 3d at 1011, 809 N.E.2d at 253-54.
While defendant acknowledges Dekelaita and similar precedent, it maintains that the
second and third definitions of Aconsumer@ in section 2301(3) mention a written warranty. 2
2 The Act describes Awritten warranty@ as follows:
A(A) any affirmation of fact or written promise made in
connection with the sale of a consumer product by a supplier to a
buyer which relates to the nature of the material or workmanship
and affirms or promises that such material or workmanship is
defect free or will meet a specified level of performance over a
specified period of time; or
(B) any undertaking in writing in connection with the sale
by a supplier of a consumer product to refund, repair, replace, or
take other remedial action with respect to such product in the event
that such product fails to meet the specifications set forth in the
undertaking,
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Defendant argues that for a written warranty to exist, a sale must take place. The defendant
corporation in Dekelaita made the same argument, which the court rejected, stating that under
the third definition of Aconsumer@ in section 2301(3), a lessee meets the description of one who
is entitled to enforce the warranty under the Act or Aunder applicable State law.@ 15 U.S.C.
'2301(3) (2000); Dekelaita, 343 Ill. App. 3d at 812-14, 799 N.E.2d at 374-76 (discussing the
public policy served by extending the rights of car buyers to consumers who enter into long-term
leases). Furthermore, we find this case indistinguishable from Mangold. Therefore, the second
and third definitions of Aconsumer@ under section 2301(3) apply to plaintiff here.
III. Breach of Express Warranty (Count I)
Defendant next argues that plaintiff cannot recover for breach of express warranty under
Count I of his complaint, raising three theories under which judgment for plaintiff on that count
should be reversed. In considering a challenge to the jury=s verdict, the standard of review is that
which written affirmation, promise, or undertaking becomes part of the basis of
the bargain between a supplier and a buyer for purposes other than resale of such product.@
(Emphasis added.) 15 U.S.C. '2301(6) (2000).
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the verdict is not disturbed unless contrary to the manifest weight of the evidence. Snelson v.
Kamm, 204 Ill. 2d 1, 35, 787 N.E.2d 796, 815 (2003). A verdict is against the manifest weight of
the evidence where the opposite conclusion is clearly evident or where the findings of the jury
are unreasonable, arbitrary and not based upon the evidence. Redmond v. Socha, 216 Ill. 2d 622,
651, 837 N.E.2d 883, 900 (2005).
A. Proper Measure of Plaintiff=s Damages
Defendant raises several arguments in support of his point that the express warranty was
not breached. Defendant first contends that plaintiff presented no evidence as to his damages,
pointing to his testimony that, despite the repairs, he drove the vehicle almost 100,000 miles
between 1999 and 2002. The jury awarded plaintiff $6,000 in damages for breach of the express
and implied warranties.
The jury was given the following instruction regarding damages:
AIf you decide for the Plaintiff on his claim for breach of warranty, you
must fix the amount of money which will reasonably compensate the plaintiff for
all actual damages proximately caused. In calculating Plaintiff=s damages, you
should determine that sum of money that will put the Plaintiff in as good a
position as he would have been in if both Plaintiff and Defendant had performed
all their promises under Defendant=s written limited warranty and as required by
law under the implied warranty of merchantability.
The elements of damage claimed by plaintiff in this case are the difference
between the value of the vehicle as it was warranted and the value of the vehicle
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delivered in its defective state and/or incidental/consequential damages.
Whether these elements of damages have been proved by the evidence is
for you to determine.@ (Emphasis added.)
See Illinois Pattern Jury Instructions, Civil, No. 30.01 (2005).
Plaintiff argues that damages in a breach of warranty case are governed by section 2-
714(2) of the Illinois Uniform Commercial Code (the UCC), which states that such damages are
measured as:
Athe difference at the time and place of acceptance between the value of
the goods accepted and the value they would have had if they had been as
warranted, unless special circumstances show proximate damages of a different
amount.@ 810 ILCS 5/2-714(2) (West 2000).
The Illinois Supreme Court recently applied this standard in Razor v. Hyundai Motor
America, No. 98813 (2006) (modified on denial of rehearing), which plaintiff cites as
supplemental authority. Plaintiff also points out that defendant raised no objection to the
instruction that was given to the jury and, in fact, expressly agreed to it, which the record on
appeal establishes. A party waives any objection to a jury instruction by failing to object to it at
the instruction conference. Burmac Metal Finishing Co. v. West Bend Mutual Insurance Co.,
356 Ill. App. 3d 471, 484, 825 N.E.2d 1246, 1258 (2005). Plaintiff further notes that defendant
did not offer an alternative instruction reflecting the theory of damages it now argues should
have been used.
Defendant responds that it raised that argument to the trial court in its motion for a
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directed verdict and at other points during trial. Defendant argues that despite its apparent
acquiescence to the instruction that was given, this case did not involve a purchase but rather a
lease, which is governed by article 2A of the UCC, and defendant maintains that plaintiff=s
damages should be assessed by the diminution in the value of the lease, citing section 2A-519
(810 ILCS 5/2A-519 (West 2000)). However, the instruction provided to the jury in this case
included the correct test to measure damages for breach of a limited warranty. See Razor, slip
op. at 24.
Defendant nevertheless maintains that even if the instruction was proper, plaintiff failed
to prove that he sustained damages. Defendant argues that plaintiff=s expert witness presented
conclusory testimony as to the diminished value of plaintiff=s lease of the vehicle, and defendant
asserts that the repairs made to the vehicle do not definitively establish damages. This argument
is discussed in section C below, which analyzes whether defendant breached the express
warranty.
B. AReasonable Number of Repair Attempts@ Instruction
Defendant next contends that the jury was erroneously instructed on the standard to
assess a breach of the written warranty on plaintiff=s vehicle. Plaintiff alleged in her complaint
that the purported defects in the Jeep Cherokee were not resolved after Aa reasonable number of
attempts,@ and the jury was instructed that to establish a breach of the written warranty, plaintiff
was required to prove, inter alia, that a defect existed in the vehicle and that defendant Awas
unable to repair the vehicle after a reasonable number of attempts.@ The test for determining
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whether the jury was properly instructed is whether, taken as a whole, the jury instructions were
clear enough so as not to mislead and whether they fairly and accurately stated the applicable
law. Burmac Metal Finishing Co., 356 Ill. App. 3d at 483, 825 N.E.2d at 1257-58.
Defendant argues that the Areasonable number of repair attempts@ standard does not apply
here because this case involved a limited warranty, as opposed to a full warranty. The
Magnuson-Moss Act creates minimum federal standards for product warranties and provides a
cause of action for a consumer against a manufacturer, supplier, warrantor or service contractor
for a breach of warranty. 15 U.S.C. '' 2310(d)(1), 2304(a) (West 2000); see Bartow v. Ford
Motor Co., 342 Ill. App. 3d 480, 483-84, 794 N.E.2d 1027, 1030 (2003). Defendant argues that
under the Magnuson-Moss Act, the Areasonable number of repair attempts@ standard only applies
to full warranties, not to limited warranties. 3
This court recently addressed this argument in Mydlach v. DaimlerChrysler Corp., 364
Ill. App. 3d 135, 150-51 (2005) (as modified on denial of rehearing), rejecting the position of
3 Plaintiff does not dispute that a limited warranty was in effect here. We again note the Illinois Supreme Court=s recent opinion in Razor, which plaintiff cited as supplemental authority on the issue of damages. In Razor, the supreme court noted that the warranty at issue in that case was a limited warranty and stated that Athe Act does not set out requirements for limited warranties.@ Razor, slip op. at 7. We acknowledge that observation by the court but do not sua sponte read that isolated statement to indicate that portions of the Act, such as section 2310(d) in particular, do not apply to limited warranties.
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this same corporate defendant that the UCC, and not the Act, applied to the plaintiff=s claims for
a breach of an express limited warranty. Mydlach held that a plaintiff=s action accrues under the
Act for breach of an express limited warranty to repair a vehicle when the defendant fails to
repair the vehicle in a reasonable number of attempts. Mydlach, 364 Ill. App. 3d at 146.
In support of the contention that the Areasonable number of repair attempts@ standard
applies only to full warranties, defendant calls our attention to several cases including Pearson,
Bartow and Lara v. Hyundai Motor America, 331 Ill. App. 3d 53, 770 N.E.2d 721 (2002). We
discussed each of those cases in Mydlach and found that they did not support the defendant=s
overall proposition that the Act does not apply to limited warranties. Mydlach, 364 Ill. App. 3d
at 149-50. In particular, Mydlach noted the observation in Lara that a plaintiff=s claim for breach
of an express limited warranty can be brought under section 2310(d)(1). Mydlach, 364 Ill. App.
3d at 149. Accordingly, as to defendant=s assertion that the jury was wrongly instructed, we
conclude that the Areasonable number of attempts@ standard accurately stated the applicable law.
C. Evidence of Breach of Express Warranty
Defendant next contends that plaintiff did not meet the test for breach of a limited
warranty set out in Hasek v. DaimlerChrysler Corp., 319 Ill. App. 3d 780, 793, 745 N.E.2d 627,
638 (2001), which requires a plaintiff to prove: (1) the terms of the warranty; (2) the failure or
failures of warranted parts; (3) a demand upon the defendant to perform under the warranty; (4)
the failure of the defendant to do so; (5) the plaintiff=s compliance with the terms of the
warranty; and (6) damages resulting therefrom. Defendant argues that the warranty was not
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breached because plaintiff drove the vehicle almost 100,000 miles and that the vehicle was
serviced each time plaintiff requested a repair.
The testimony established that plaintiff had the vehicle serviced no less than six times
and that the steering wheel shook violently when he applied the brakes. The brake rotors were
repaired or replaced at least four times between March 2000 and May 2002. Whether a breach
of express warranty has occurred and whether the repairs were made in a reasonable number of
attempts are questions of fact for the jury to resolve where the evidence is conflicting or
reasonably susceptible of more than one inference. 77A C.J.S. Sales ' 305 (1994); see also
Neppl v. Murphy, 316 Ill. App. 3d 581, 591, 736 N.E.2d 1174, 1183 (2000).
Defendant contends that plaintiff must prove an Aactual loss@ or Ameasurable damages
resulting from the breach,@ and defendant argues that the fact that plaintiff=s vehicle was repaired
does not mean that plaintiff sustained any damages, pointing out that the majority of the repairs
were covered under plaintiff=s warranty. Plaintiff again responds that defendant forfeited any
argument about the proper measure of damages by failing to object to the trial court=s instruction
(discussed in section A).
Damages are an essential element of a breach of warranty claim. Kim v. Mercedes-Benz
U.S.A., Inc., 353 Ill. App. 3d 444, 460, 818 N.E.2d 713, 726 (2004). AThe ascertainment and
assessment of damages is a question of fact for the jury; although the amount may not be
speculative, it need not be proved with mathematical certainty.@ F.L. Walz, Inc., v. Hobart
Corp., 224 Ill. App. 3d 727, 733, 586 N.E.2d 1314, 1319 (1992). This court recently affirmed
that the diminished value of a product is a compensable injury in a breach of warranty claim.
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Dewan, 363 Ill. App. 3d at 369, 842 N.E.2d at 760-61. Here, plaintiff=s expert, Thomas Walters,
testified that he relied on the Kelley Blue Book, which measures the retail value in terms of a car
or truck=s purchase price, in opining that the brake defects reduced the vehicle=s value by 40%.
The monetary value of the jury=s award for breach of the express and implied warranties B
$6,000 B was in line with that assessment. Having concluded that the jury was properly
instructed on how to weigh plaintiff=s damages, we decline to disturb the damage award.
IV. Breach of Implied
Warranty of Merchantability (Count II)
Defendant=s final assertions on appeal involve the implied warranty of merchantability.
Defendant argues that contrary to the judgment for plaintiff on that count, the vehicle was clearly
merchantable, again citing the number of miles plaintiff was able to drive the vehicle despite the
undisputed brake problems.
A product breaches the implied warranty of merchantability if it is not fit for the ordinary
purpose for which such goods are used. Pearson, 349 Ill. App. 3d at 698, 813 N.E.2d at 239. In
the case of automobiles, this standard means that the vehicle Ashould be in a safe condition and
substantially free of defects.@ Pearson, 349 Ill. App. 3d at 698, 813 N.E.2d at 239; see also
Check v. Clifford Chrysler-Plymouth of Buffalo Grove, Inc., 342 Ill. App. 3d 150, 159, 794
N.E.2d 829, 836 (2003). An implied warranty of merchantability applies to the condition of the
goods at the time of sale and is breached only if the defect in the goods existed when the goods
left the seller=s control. Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1150,
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759 N.E.2d 66, 75 (2001).
Defendant asserts that plaintiff was able to drive the Jeep Cherokee for almost 100,000
miles and that the vehicle therefore was fit for its ordinary purpose. In response, plaintiff points
out the Jeep Cherokee=s numerous malfunctions and notes the standard set out in Tweedy v.
Wright Ford Sales, Inc., 64 Ill. 2d 570, 357 N.E.2d 449 (1976), that a defect can be proved
inferentially by direct or circumstantial evidence. A breach of an implied warranty of
merchantability may occur where the warrantor has unsuccessfully attempted to repair or replace
the defective parts. Check, 342 Ill. App. 3d at 159, 794 N.E.2d at 836. Plaintiff presented
evidence that he had the brake rotors repaired or replaced numerous times but that the problem
was never completely resolved. Whether an implied warranty has been breached is to be decided
by the trier of fact. 77A C.J.S. Sales ' 305 (1994); Check, 342 Ill. App. 3d at 159, 794 N.E.2d at
836. The fact that the jury chose to lend greater weight to the testimony presented by plaintiff
than that of defendant=s experts does not mandate reversal by this court. See Jackson v. H. Frank
Olds, Inc., 65 Ill. App. 3d 571, 578, 382 N.E.2d 550, 555 (1978).
Defendant next contends that even if the evidence established that the implied warranty
of merchantability was breached, plaintiff was not entitled to recovery under that theory because,
as a consumer lessee of the vehicle from Automotive Leasing Corporation, plaintiff was not in
contractual privity with DaimlerChrysler, which manufactured the vehicle.
This defendant recently raised that argument unsuccessfully in Mydlach. In that case,
this court noted that although the UCC extends a buyer=s potential cause of action for breach of
the implied warranty of merchantability only to an immediate seller, this privity requirement has
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been Arelaxed@ where (1) a manufacturer has extended a written warranty with a product; and (2)
a consumer brought an action against the manufacturer under the Magnuson-Moss Act.
Mydlach, 364 Ill. App. 3d at 153. See also Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347
Ill. App. 3d 828, 831, 807 N.E.2d 1165 (2004), citing Rothe v. Maloney Cadillac, Inc., 119 Ill.
2d 288, 294-95, 518 N.E.2d 1028 (1988), and Szajna v. General Motors Corp., 115 Ill. 2d 294,
315-16, 503 N.E.2d 760 (1986). Defendant does not dispute that a written warranty was
provided to plaintiff when he leased the vehicle, and plaintiff=s action against defendant has been
brought pursuant to the Magnuson-Moss Act. Therefore, defendant was in vertical privity with
plaintiff for the purpose of plaintiff=s implied warranty of merchantability claim.
CONCLUSION
In summary, we hold that as a lessee of the Jeep Cherokee manufactured by defendant,
plaintiff met the definition of a Aconsumer@ under section 2301(3) of the Magnuson-Moss Act,
that the Areasonable number of repair attempts@ instruction reflected the correct standard, and
that sufficient evidence of plaintiff=s damages was presented to support the jury=s verdict. The
judgment for plaintiff on counts I and II of his complaint is affirmed.
Affirmed.
O'MARA FROSSARD and NEVILLE, JJ., concur.