Zwicky v. Freightliner Custom Chassis Corp.

867 N.E.2d 527, 373 Ill. App. 3d 135
Appellate Court of Illinois·Decided April 25, 2007·No. 2-05-1177·Published·Cited by 10 cases

Opinion

JUSTICE GILLERAN JOHNSON

delivered the opinion of the court:

The plaintiffs, Michael and Rita Zwicky, brought claims against the defendants for breach of express and implied warranties and for revocation of acceptance. On October 26, 2005, the trial court granted summary judgment in favor of the defendants on all counts of the plaintiffs’ complaint, finding that pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216), the plaintiffs were deemed to have made certain admissions as a result of their failure to answer requests for admissions, and that these admissions prevented them from recovering on their claims as a matter of law. On appeal, the plaintiffs argue: (1) that their failure to answer the requests for admissions should not be treated as admissions; and (2) that even if the requests for admissions are all deemed admitted, summary judgment was improper because the admissions do not preclude them from recovering on their causes of action. For the following reasons, we affirm in part and reverse in part and remand for further proceedings.

I. Background

On August 31, 1999, the plaintiffs Michael and Rita Zwicky purchased from the defendant Rand Thompson, Inc., d/b/a Crystal Valley RV (CVRV), a 1999 Fleetwood Discovery motor home and an extended warranty. In addition to the extended warranty, the motor home came with a limited warranty, as defined by the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (the Act) (15 U.S.C. §2301 et seq. (2000)), issued by the defendants Freightliner Custom Chassis Corporation (Freightliner) and Fleetwood Motor Homes of Indiana, Inc. (Fleetwood). Between the date they bought the motor home and September 13, 2001, the Zwickys had the motor home repaired on at least 16 separate occasions. On September 27, 2002, the Zwickys notified CVRV that they wished to revoke their acceptance of the motor home.

In October 2002, the Zwickys filed a complaint against the defendants for breach of express and implied warranties and for revocation of acceptance. On January 3, 2003, Fleetwood mailed to the plaintiffs written discovery, including interrogatories, requests to produce, and requests for admissions. Among the requests for admissions served by Fleetwood were the following statements, which Fleet-wood requested that the plaintiffs either admit or deny pursuant to Supreme Court Rule 216:

“1. Plaintiffs remain in possession of the subject vehicle.
2. Plaintiffs continue to enjoy the benefits of the use of the vehicle on a regular basis.
3. Plaintiffs continue to use the subject vehicle on a regular basis.
* * *
7. That the terms and conditions of the Fleetwood Motor Homes Limited Warranty, issued by Fleetwood Motor Homes, specifically excludes and limits damages for incidental and consequential damages.
8. That at the time plaintiffs sent written notification of plaintiffs [sic] revocation of acceptance, the condition of the subject vehicle had substantially changed from the time of its initial purchase or lease in that the vehicle had several thousand miles on its odometer.
9. There are presently no known defects or nonconformities with the subject vehicle.
10. That the subject vehicle has not sustained any diminution in value as a result of any repair procedure, servicing procedure, or replacement procedure performed by any vehicle dealership or repair facility.
11. That no independent Fleetwood dealership or service facility ever refused to perform repair procedures or replacement procedures on the subject vehicle.”

Fleetwood did not file the proof of service for the requests for admissions, but the plaintiffs do not dispute that they received the requests for admissions in January 2003. The plaintiffs never responded to the requests for admissions.

The parties engaged in settlement discussions beginning in June 2003 but were unable to reach agreement. On October 23, 2003, the plaintiffs filed a motion for extension of time to respond to Fleet-wood’s requests for admissions. The trial court denied the motion on January 15, 2004. On March 1, 2004, the plaintiffs voluntarily dismissed the original complaint.

On May 21, 2004, utilizing section 13 — 217 of the Code of Civil Procedure (735 ILCS 5/13 — 217 (West 2004)), which permits voluntarily dismissed actions to be refiled within one year, the plaintiffs filed a new complaint against the defendants. They filed an amended six-count complaint on December 3, 2004. Counts I (against Freightliner) and II (against Fleetwood) alleged breaches of express warranty pursuant to the Act (15 U.S.C. §2301 et seq. (2000)). Counts III (against Freightliner), IV (against Fleetwood), and V (against CVRV) alleged breaches of the implied warranty of merchantability pursuant to the Uniform Commercial Code (UCC) (810 ILCS 5/2 — 314 (West 2004)) and the Act. Count VI (against CVRV) alleged a breach of contract and sought revocation of acceptance pursuant to the UCC (810 ILCS 5/2— 608 (West 2004)). On May 4, 2005, the trial court granted CVRV’s motion to dismiss count V which is not at issue on appeal.

On July 15, 2005, Fleetwood and CVRV filed a motion for summary judgment, arguing that the requests for admissions to which the plaintiffs failed to respond in the original action should be deemed admissions applicable in the current action and that those admissions precluded the plaintiffs from maintaining the claims enumerated in the amended complaint. On August 15, 2005, Freightliner filed a motion to join in the other defendants’ motion for summary judgment, essentially adopting their arguments. The summary judgment motion was fully briefed. On October 26, 2005, after a hearing at which all parties presented oral arguments, the trial court granted the motion and entered summary judgment in favor of the defendants on all counts. The plaintiffs filed a timely notice of appeal.

II. Discussion

Rule 216 Admissions

On appeal, the plaintiffs first contend that their failure to respond to the requests for admission served in the original action should not be construed pursuant to Supreme Court Rule 216(c) (134 Ill. 2d R. 216(c)) as admissions of the statements contained therein (Rule 216 admissions). Rule 216 states, in pertinent part:

“(a) Request for Admission of Fact. A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.
(c) Admission in the Absence of Denial.

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Zwicky v. Freightliner Custom Chassis Corp., 867 N.E.2d 527, 373 Ill. App. 3d 135 (Ill. Ct. App. 2007).

867 N.E.2d 527 (Zwicky v. Freightliner Custom Chassis Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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