                        Docket No. 98813.

                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS



SHANTE RAZOR, Appellee, v. HYUNDAI MOTOR AMERICA,
                     Appellant.

    Opinion filed February 2, 2006. BModified upon denial of
                    rehearing June 29, 2006.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Fitzgerald, Kilbride, and
Garman concurred in the judgment and opinion.
   Justice McMorrow dissented from the denial of rehearing, with
opinion.
   Justice Karmeier dissented from the denial of rehearing, without
opinion.

                            OPINION

    This appeal involves the federal Magnuson-Moss
WarrantyBFederal Trade Commission Improvement Act (Act) (15
U.S.C. '2301 et seq. (2000)) and the Illinois Uniform Commercial
Code (UCC) (810 ILCS 5/1B101 et seq. (West 2000)). The only
issues raised concern the propriety of the damages awarded to the
plaintiff. The primary question is whether the circuit court acted
properly in refusing to enforce a contractual clause prohibiting the
award of consequential damages. There is also a sufficiency of the
evidence challenge to the court=s award of warranty damages. We
affirm in part, reverse in part, and remand.

                          BACKGROUND
    Plaintiff Shante Razor purchased a new Hyundai Sonata from
Gartner Buick, Inc. (Gartner), on August 4, 2001. At the time she
purchased the car, plaintiff also bought an optional remote starter and
alarm system from an Aoptions@ booklet shown to her by the Gartner
salesman. Gartner subcontracted the installation of this starter to
Professional Sound Installers (ProSound). ProSound did not install it
on the date plaintiff purchased her vehicle, but a few weeks later, on
August 30, 2001.
     The Sonata was the first new car plaintiff had ever purchased. It
came with a five-year, 60,000-mile warranty, a copy of which was
introduced into evidence. In pertinent part, the warranty provided as
follows:
            AWHAT IS COVERED
            Repair or replacement of any component originally
        manufactured or installed by Hyundai Motor Company or
        Hyundai Motor America (HMA) that is found to be defective
        in material or workmanship under normal use and
        maintenance, except any item specifically referred to in the
        section >What is Not Covered.=
                                  ***
            WHAT IS NOT COVERED
            * Damage or failure resulting from:
            BNegligence of proper maintenance as required in the
        Owner=s Manual.
            BMisuse, abuse, accident, theft, water/flooding or fire.
                                  ***
            BAny device and/or accessories not supplied by Hyundai.
                                  ***
            * INCIDENTAL OR CONSEQUENTIAL DAMAGES,
        INCLUDING WITHOUT LIMITATION, LOSS OF TIME,
        INCONVENIENCE, LOSS OF USE OF THE VEHICLE, OR
        COMMERCIAL LOSS.
            * The duration of any implied warranties, including those

                                 -2-
         for MERCHANTABILITY and FITNESS FOR A
         PARTICULAR PURPOSE, are limited to the duration of this
         limited warranty.
             Some states do not allow limitations on how long an
         implied warranty lasts, or the exclusion or limitation of
         incidental and consequential damages, so the limitations or
         exclusions set forth regarding this limited warranty may not
         apply to you. You may also have other rights which vary
         from state to state.@
    In late September 2001, plaintiff began experiencing difficulties
with the vehicle. On September 26, plaintiff had the vehicle towed to
Gartner for service because it failed to start when she turned the key.
She experienced the same problem and again had the vehicle towed
to Gartner for service on October 6, October 16, and October 25. On
the latter occasion, Gartner kept the vehicle for more than two weeks,
providing plaintiff with a rental car to use during the time the vehicle
was out of her possession. Nevertheless, the problem happened again
on November 21, the day before Thanksgiving, when plaintiff had
taken the day off from work to go shopping for the holiday. After a
technician came to her home and was himself unable to start the car,
the vehicle was yet again towed to Gartner for attempted repairs.
    Sometimes after being towed to Gartner the vehicle started
normally, other times it did not. Gartner technicians attempted
various different repairs on the different occasions that the car
appeared before them, including replacing the starter, replacing the
AECU power relay,@ replacing the remote starter with an updated
system, and replacing the Atrans range switch@ and Astarter relay.@
Additionally, after the October 25 no-start, when the vehicle was kept
for more than two weeks, ProSound removed the remote starter it had
originally installed on plaintiff=s vehicle and replaced it with an
updated model. Plaintiff was not charged for any of the attempted
repairs.
    In December 2001, plaintiff filed suit against defendant, Hyundai
Motor America (Hyundai). Plaintiff made claims against Hyundai
pursuant to the Magnuson-Moss Warranty Act (15 U.S.C. '2301 et
seq. (2000)) for breach of written warranty and breach of implied
warranty of merchantability. Plaintiff also alleged that Hyundai had
violated the Illinois New Vehicle Buyer Protection Act (815 ILCS

                                  -3-
380/1 et seq. (West 2000)).
    The case initially went to arbitration. The arbitration panel found
in plaintiff=s favor, and entered an award of $6,500, plus attorney fees
and costs. Hyundai rejected this award and demanded trial.
    The case went to trial in February 2003. Plaintiff was the sole
witness for her case, and most of the above undisputed facts are
drawn from her testimony. In addition, plaintiff testified that she
never saw the actual warranty until after she had purchased the car,
because the warranty was contained in the owner=s manual, which she
saw for the first time in the glove box of her vehicle when she drove
it off the lot. Plaintiff=s purchase contract, a copy of which was
introduced into evidence, does not appear to contain or refer to the
vehicle warranty. When asked on cross-examination if she had seen
the warranty on a placard at Gartner , plaintiff testified that she had
not. Plaintiff testified that she had performed all required
maintenance on her car, had never been in an accident or been the
victim of vandalism, and that no one other than Gartner had ever
performed any repairs on the vehicle.
    During plaintiff=s direct examination, defense counsel objected
when plaintiff=s counsel inquired regarding her purchase of prior
automobiles. During a lengthy sidebar, counsel explained that he was
attempting to lay a foundation in order to ask her how much the car=s
value to her had decreased because of the problems she had with it.
The court ruled that plaintiff could not answer such a question. The
court indicated that plaintiff could testify Aas to what her feelings
were, what her frame of mind was and the impact of the slow [sic]
start situation on her personal feelings. *** But as to >the value of the
vehicle would have been such and such because of the no start
conditions,= I don=t see how you=re going to go that far with it.@
Plaintiff was permitted to testify that the purchase price of her Sonata
was $16,522, and that she would eventually have paid a total of
$21,249 for the car, including finance charges.
    Plaintiff testified that the vehicle did not provide her the type of
transportation she expected. She testified, A[I]t=s a brand new car. I
expected it to be perfect, flawless or minimal problems, certainly not
the ones that I encountered here.@ She testified that she would not
purchase the same vehicle today, because it was Aproven unreliable,@
and she would not today pay the price she had originally paid for the

                                  -4-
vehicle, because Agiven the problems that this vehicleBthat I have had
with this vehicle or the problems the vehicle has had, that=s like a
used car. I would not pay that for a new car with used problems as it
were.@ Plaintiff also testified that the problems she had with the car
had caused her considerable inconvenience, including missing days
of work. However, on cross-examination, plaintiff admitted she was
still driving the car at the time of trialBMay 2003Band had not
experienced any difficulties with it since December 2001.
     Plaintiff offered her exhibits into evidence and rested. Hyundai
moved for a directed verdict, which the court denied in its entirety.
During argument on the motion, the court initially ruled that
Hyundai=s disclaimer of incidental and consequential damages was
not unconscionable, but shortly thereafter the court reversed itself and
ruled that the disclaimer was unconscionable and would not be
enforced. When defense counsel inquired of the court as to the basis
for its ruling that the disclaimer was unconscionable, the court
responded:
             ATHE COURT: The number of attempts that the plaintiff
         attempted for repairs. The fact that the plaintiff needed, used
         or intended to use the vehicle for transportation to and from
         work. The fact that the plaintiff was unable to use the vehicle
         for the time period in question for it=s [sic] intended use.@
     After the court denied Hyundai=s motion for a directed verdict,
the defense called its sole witness, Randy Wood. Wood is treasurer
and part owner of ProSound, the company which installed plaintiff=s
alarm and remote starter system. He testified that ProSound had
inspected the system installed on plaintiff=s vehicle on more than one
occasion, and no problem was ever found. Although ProSound did
replace plaintiff=s system with the newest model, this was for
customer satisfaction purposes only, because ProSound never found
anything wrong with plaintiff=s system. He did admit on redirect
examination that plaintiff=s vehicle Amay have@ had a weak signal
coming through its Atack [sic] wire,@ and if that condition existed it
could cause problems for the ProSound system. Wood also testified
that the system could itself prevent the car from starting, if one
attempted to start it with the key after locking the car with the remote
control.
     After the defense rested, Hyundai renewed its motion for a
directed verdict, including specifically arguing that the court should


                                  -5-
not have reversed its initial conclusion regarding the enforceability of
the consequential damages disclaimer. The court denied Hyundai=s
motions and submitted the case to the jury.
    The jury returned a verdict for plaintiff on the breach of warranty
claims, awarding her $5,000 in warranty damages for the diminished
value of the Sonata due to the defects, and $3,500 in consequential
damages for aggravation and inconvenience and loss of use. The jury
also answered Ayes@ to a special interrogatory which asked, ADid
plaintiff prove the aftermarket remote starter-alarm system was not
the cause of the no-start condition?@ The jury found in defendant=s
favor, however, on plaintiff=s claim under the New Vehicle Buyer
Protection Act. The court awarded plaintiff $12,277 in attorney fees
and costs.
    The appellate court affirmed in all respects. 349 Ill. App. 3d 651.
    Hyundai petitioned for leave to appeal to this court (see 155 Ill.
2d R. 315(a)), which we granted.

                             ANALYSIS
    Before this court the issues have been pared down. Hyundai
neither challenges the jury=s conclusions regarding causation nor
contends that plaintiff failed to prove that the warranty failed of its
essential purpose. Plaintiff does not cross-appeal the jury verdict in
Hyundai=s favor on her New Vehicle Buyer Protection Act claim.
Neither party raises any issues regarding the circuit court=s conduct of
the trial.
     Rather, the arguments now focus exclusively on damages.
Hyundai first argues that the circuit court erred in refusing to enforce
the contractual exclusion of incidental and consequential damages.
Hyundai argues that the mere fact that its warranty failed of its
essential purpose does not invalidate the consequential damages
disclaimer, and contends that plaintiff introduced no evidence to
support the circuit court=s ruling that the disclaimer should not be
enforced. Second, Hyundai contends that there was insufficient
evidence to support the jury=s warranty damage award. Finally,
Hyundai argues that if this court reverses both damage awards, we
must also reverse the circuit court=s award of fees and costs. Plaintiff
raises no additional arguments. Thus, these are the only issues before
us.


                                  -6-
              I. Enforceability of Hyundai=s Disclaimer of
                    Incidental/Consequential Damages
    The main issue before this court is the enforceability of Hyundai=s
disclaimer of incidental and consequential damages. Hyundai argues
that the disclaimer is independent of the limited remedy, and the
disclaimer may stand even if its limited remedy failed of its essential
purpose. Hyundai contends that the disclaimer may be overridden
only if it is itself unconscionable, a standard which Hyundai argues
has not been met in the instant case. Plaintiff responds that the
disclaimer should fall with the limited warranty, and contends that
even if this court finds them to be severable, the disclaimer in this
case was unconscionable.

A. AIndependent@ vs. ADependent@ Approach to Provisions Limiting
           Remedy and Excluding Consequential Damages
     As previously noted, plaintiff=s claim was brought under the
Magnuson-Moss Warranty Act (15 U.S.C. '2301 et seq. (1994)).
Under the Act, consumers who have been damaged by any
warrantor=s failure to comply with its obligations under a written
warranty may bring suit Ain any court of competent jurisdiction in any
State or the District of Columbia.@ 15 U.S.C. '2310(d)(1)(A) (1994).
     The Act itself does not determine the enforceability of the
consequential damages disclaimer, however. The Act does supersede
state law, but only to the extent that state law is inconsistent with the
Act. 15 U.S.C. '2311 (1994); see Sorce v. Naperville Jeep Eagle, 309
Ill. App. 3d 313, 323 (1999). The warranty at issue in this case was a
limited warranty, and the Act does not set out requirements for
limited warranties. 1 Rather, the Act merely prescribes certain
requirements with which warranties must comply in order to be
called Afull@ warranties. See 15 U.S.C. '2303(a) (1994) (a warranty
which meets the standards set forth in section 4 of the Act (15 U.S.C.

   1
    The Act does permit the Federal Trade Commission to establish general
disclosure requirements for the terms and conditions of all warranties, e.g.,
that they must clearly identify the warrantors, the warrantees, the products
or parts covered, etc. See 15 U.S.C. '2302 (1994). However, the Act itself
does not directly establish any such disclosure requirements, nor do the
parties raise any arguments regarding any requirements the FTC may have
established.


                                    -7-
'2304 (1994)) Ashall be conspicuously designated a >full (statement of
duration) warranty,= @ and a warranty which does not meet the
standards set out in section 4 of the Act Ashall be conspicuously
designated a >limited warranty= @).
    Accordingly, to determine the enforceability of a consequential
damages disclaimer in a limited warranty, we look to state law. See
Lara v. Hyundai Motor America, 331 Ill. App. 3d 53, 62 (2002);
Sorce, 309 Ill. App. 3d at 325. In Illinois, the sale of goods is
governed by article 2 of the Uniform Commercial Code (UCC). 810
ILCS 5/1B101 et seq. (2000). Central to this case is section 2B719 of
the UCC, which governs AContractual modification or limitation of
remedy@:
            A(1) Subject to the provisions of subsections (2) and (3) of
        this Section and of the preceding section on liquidation and
        limitation of damages,
                (a) the agreement may provide for remedies in
            addition to or in substitution for those provided in this
            Article and may limit or alter the measure of damages
            recoverable under this Article, as by limiting the buyer=s
            remedies to return of the goods and repayment of the
            price or to repair and replacement of non-conforming
            goods or parts; and
                (b) resort to a remedy as provided is optional unless
            the remedy is expressly agreed to be exclusive, in which
            case it is the sole remedy.
            (2) Where circumstances cause an exclusive or limited
        remedy to fail of its essential purpose, remedy may be had as
        provided in this Act.
            (3) Consequential damages may be limited or excluded
        unless the limitation or exclusion is unconscionable.
        Limitation of consequential damages for injury to the person
        in the case of consumer goods is prima facie unconscionable
        but limitation of damages where the loss is commercial is
        not.@ 810 ILCS 5/2B719 (West 2000).
    In this case, Hyundai=s limited warranty contained both a
limitation of remedy and an exclusion of consequential damages. The
warranty expressly limited the buyer=s remedies to repair and
replacement of nonconforming parts, as permitted under section
2B719(1)(a). However, the warranty additionally provided that

                                  -8-
incidental or consequential damages were Anot covered,@ as permitted
under section 2B719(3).
    Plaintiff claimedBand the jury foundBthat the Hyundai limited
remedy had failed of its essential purpose because of the persistence
of the no-start problem with plaintiff=s car. Hyundai does not question
this factual determination in this appeal. Thus, according to section
2B719(2) of the UCC, plaintiff was entitled to remedy Aas provided in
this Act.@ 810 ILCS 5/2B719(2) (West 2000). See also 810 ILCS Ann.
5/2B719, Uniform Commercial Code Comment 1, at 488 (Smith-Hurd
1993) (Aunder subsection (2), where an apparently fair and reasonable
clause because of circumstances fails in its purpose or operates to
deprive either party of the substantial value of the bargain, it must
give way to the general remedy provisions of this Article@).
    This does not end the inquiry insofar as consequential damages
are concerned, however. Subsection (3) of section 2B719 is part of
Athis Act@Bi.e., the UCCBand subsection (3) permits a seller to limit
or exclude consequential damages unless to do so would be
unconscionable. It still must be determined, therefore, whether a
limited remedy failing of its essential purpose defeats a disclaimer of
consequential damages.
     There are two main schools of thought on the issue. Some courts
and commentators conclude that a limited remedy failing of its
essential purpose operates to destroy any limitation or exclusion of
consequential damages in the same contract. This approach is known
as the Adependent@ approach, because the enforceability of the
consequential damages exclusion depends on the survival of the
limitation of remedy.
    Our appellate court issued one of the seminal cases for the
dependent approach, Adams v. J.I. Case Co., 125 Ill. App. 2d 388
(1970). There, the plaintiff purchased a tractor, pursuant to a
purchase agreement which limited his remedy to repair and
replacement and also disclaimed consequential damages. The tractor
had severe mechanical problems and was in a repair shop for over a
year. Plaintiff filed suit, seeking consequential damages for the
business he claimed to have lost because defendants were Awilfully
dilatory or careless and negligent in making good their warranty.@
The court concluded:
        AThe limitations of remedy and of liability are not separable
        from the obligations of the warranty. Repudiation of the

                                 -9-
        obligations of the warranty destroys its benefits. The
        complaint alleges facts that would constitute a repudiation by
        the defendants of their obligations under the warranty, that
        repudiation consisting of their wilful failure or their careless
        and negligent compliance. It should be obvious that they
        cannot at once repudiate their obligation under their warranty
        and assert its provisions beneficial to them.@ Adams, 125 Ill.
        App. 2d at 402-03.
In defense of the dependent approach, the United States District
Court for the Northern District of Illinois has reasoned:
        A[P]laintiff also was entitled to assume that defendants would
        not be unreasonable or wilfully dilatory in making good their
        warranty in the event of defects in the machinery and
        equipment. It is the specific breach of the warranty to repair
        that plaintiff alleges caused the bulk of its damages. This
        Court would be in an untenable position if it allowed the
        defendant to shelter itself behind one segment of the warranty
        when it has allegedly repudiated and ignored its very limited
        obligations under another segment of the same warranty,
        which alleged repudiation has caused the very need for relief
        which the defendant is attempting to avoid.@ Jones &
        McKnight Corp. v. Birdsboro Corp., 320 F. Supp. 39, 43-44
        (N.D. Ill. 1970) (applying Illinois law).
See also, e.g., Givan v. Mack Truck, Inc., 569 S.W.2d 243, 247 n.7
(Mo. App. 1978) (and cases cited therein); Pierce v. Catalina Yachts,
2 P.3d 618, 622 n.14 (Alaska 2000) (collecting cases).
    Plaintiff suggests that the dependent approach is followed by a
majority of jurisdictions to consider the issue. While this may have
been true 15 to 20 years ago 2 (see D. Goetz, Special Project: Article
Two Warranties in Commercial Transactions: An Update, 72 Cornell
L. Rev. 1159, 1307 (1987) (AA majority of cases have answered
correctly that the failure of an exclusive remedy voids the

   2
     We note that all of the law review articles and all but one of the non-
Illinois court decisions plaintiff cites were decided in 1990 or before. The
sole post-1990 foreign authority plaintiff cites, Bishop Logging Co. v. John
Deere Industrial Equipment Co., 317 S.C. 520, 455 S.E.2d 183 (1995), did
not follow the dependent approach, but rather the Acase-by-case@ approach.
Bishop Logging, 317 S.C. at 533-37, 455 S.E.2d at 191-93.


                                   -10-
consequential damages exclusion clause@)), it is no longer the case.
Rather, the majority of jurisdictions now follow the other of the two
main approaches, the Aindependent@ approach. 1 E. Farnsworth,
Farnsworth on Contracts '4.28(a), at 605-06 (3d ed. 2004) (Asome
courts have gone so far as to hold that if UCC 2B719(2) applies,
related limitations on remedies should all fall like a house of cards, so
that a provision barring recovery of consequential damages would
also be invalidated. However, most courts have rejected this view@);
Pierce, 2 P.3d at 622 (Athe majority of jurisdictions view these
subsections to be independent@) (collecting cases). This school of
thought holds that a limitation of consequential damages must be
judged on its own merits and enforced unless unconscionable,
regardless of whether the contract also contains a limitation of
remedy which has failed of its essential purpose.
    A representative case adopting the independent approach is
Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081 (3d
Cir. 1980) (applying New Jersey law). There, the court rejected the
dependent approach, holding:
            A[T]he better reasoned approach is to treat the
        consequential damage disclaimer as an independent
        provision, valid unless unconscionable. This poses no logical
        difficulties. A contract may well contain no limitation on
        breach of warranty damages but specifically exclude
        consequential damages. Conversely, it is quite conceivable
        that some limitation might be placed on a breach of warranty
        award, but consequential damages would expressly be
        permitted.
            The limited remedy of repair and a consequential
        damages exclusion are two discrete ways of attempting to
        limit recovery for breach of warranty. [Citations.] The [UCC],
        moreover, tests each by a different standard. The former
        survives unless it fails of its essential purpose, while the latter
        is valid unless it is unconscionable. We therefore see no
        reason to hold, as a general proposition, that the failure of the
        limited remedy provided in the contract, without more,
        invalidates a wholly distinct term in the agreement excluding
        consequential damages. The two are not mutually exclusive.@
        Chatlos Systems, 635 F.2d at 1086.
See also Pierce, 2 P.3d at 622-23 (adopting independent approach),


                                  -11-
622 n.16 (collecting cases).
    A third approach, Aapplied relatively infrequently,@ is the Acase by
case@ approach. D. Hagen, Note, Sections 2B719(2) & 2B719(3) of the
Uniform Commercial Code: The Limited Warranty Package &
Consequential Damages, 31 Val. U.L. Rev. 111, 131 (1996). Under
this approach, A[a]n analysis to determine whether consequential
damages are warranted must carefully examine the individual factual
situation including the type of goods involved, the parties and the
precise nature and purpose of the contract.@ AES Technology Systems,
Inc. v. Coherent Radiation, 583 F.2d 933, 941 (7th Cir. 1978).
    Neither of the parties to this appeal argues in favor of the case-by-
case approach, which has been criticized as Anot supported by the
[UCC] or its official comments.@ 31 Val. U.L. Rev. at 132. The
authorities espousing it have sometimes confused it with the
Aindependent@ approach (see, e.g., Smith v. Navistar International
Transportation Corp., 957 F.2d 1439, 1443-44 (7th Cir. 1992)
(erroneously stating that Chatlos Systems had adopted the case-by-
case approach). Moreover, although one of the factors cited in favor
of the case-by-case approach is that it Aallows some measure of
certainty@ (Smith, 957 F.2d at 1444), it has been observed that it in
fact Aprovides less predictability than the dependent or independent
approaches.@ (Emphasis added.) 31 Val. U. L. Rev. at 131.
    Additionally, notwithstanding that the case-by-case approach
might appear to tread a middle ground between the dependent
approach (which is generally more favorable for buyers) and the
independent approach (which is generally more favorable for sellers),
this is not necessarily so. In AES Technology, where the case-by-case
approach originated, the contract at issue contained no disclaimer or
limitation of consequential damages, only a limitation of remedy. The
court affirmed the trial court=s conclusion that the limited remedy had
failed of its essential purpose. AES Technology, 583 F.2d at 940.
However, the court inferred a consequential damage disclaimer from
the limitation of remedy (AES Technology, 583 F.2d at 941 n.9) and
proceeded to enforce that inferred disclaimer against the buyer even
though the limited remedy had failed of its essential purpose, because
Athe express provisions of the contract and the factual background@
indicated that the parties intended for the buyer to Abear the risk of
the project@ (AES Technology, 583 F.2d at 941). The court inferred a
consequential damages disclaimer where none existed, struck the


                                 -12-
language from which the disclaimer was inferred, then enforced the
disclaimer against the buyer anyway, based on the court=s
understanding of Athe factual background.@ This result could not have
been reached under either the dependent or independent approach,
and we find the analysis difficult to reconcile with the UCC itself.
     We find the case-by-case approach injects uncertainty into the
UCC, an area of the law in which uniformity and certainty are highly
valued. See 810 ILCS 5/1B102(2)(c) (West 2000); Connick v. Suzuki
Motor Co., 174 Ill. 2d 482, 491 (1996). It leads to results which are
difficult to reconcile with the provisions of the UCC, and has been
criticized as having no basis in the UCC or its comments. 31 Val.
U.L. Rev. at 132. We decline to adopt it.
     Rather, we agree with the reasoning in Chatlos Systems, and
adopt the independent approach. The independent approach is more
in line with the UCC and with contract law in general. Nothing in the
text or the official comments to section 2B719 indicates that where a
contract contains both a limitation of remedy and an exclusion of
consequential damages, the latter shares the fate of the former. See J.
Eddy, On the AEssential@ Purposes of Limited Remedies: The
Metaphysics of UCC 2B719(2), 65 Cal. L. Rev. 28, 92 (1977) (failure
of essential purpose is separate and independent from validity of
consequential damage disclaimer); E. Eissenstat, Note, Commercial
Transactions: UCC '2B719: Remedy Limitations and Consequential
Damage Exclusions, 36 Okla L. Rev. 669, 677 (1983) (Aa
consequential damages disclaimer should be governed by its own
[UCC] standard of unconscionability, independent of whether a
limited remedy has failed@). To the contrary, as noted in Chatlos
Systems, the different standards for evaluating the two
provisionsBAfailure        of        essential        purpose@      versus
Aunconscionability@Bstrongly suggest their independence. See also 1
White and Summers= Uniform Commercial Code '12B10(c), at 668
(4th ed. 1995) (endorsing the independent approach as most in accord
with considerations of freedom of contract).
     When a contract contains a limitation of remedy but that remedy
fails of its essential purpose, it is as if that limitation of remedy does
not exist for purposes of the damages to which a plaintiff is entitled
for breach of warranty. See 810 ILCS 5/2B719(2) (West 2000)
(Aremedy may be had as provided in this Act@). When a contract
contains a consequential damages exclusion but no limitation of


                                  -13-
remedy, it is incontrovertible that the exclusion is to be enforced
unless unconscionable. 810 ILCS 5/2B719(3) (West 2000). Why,
then, would a limitation of remedy failing of its essential purpose
destroy a consequential damages exclusion in the same contract? We
see no valid reason to so hold.
    Indeed, the dependent approach operates to nullify all
consequential damage exclusions in contracts which also contain
limitations of remedy. For if the limited remedy fails of its essential
purpose, the consequential damages exclusion would also
automatically fallBregardless of whether it is unconscionableBand if
the limitation of remedy does not fail of its essential purpose, the
buyer would not be entitled to consequential damages in any event,
he would be entitled only to the specified limited remedy.
    The two provisionsBlimitation of remedy and exclusion of
consequential damagesBcan be visualized as two concentric layers of
protection for a seller. What a seller would most prefer, if something
goes wrong with a product, is simply to repair or replace it, nothing
more. This Arepair or replacement@ remedy is an outer wall, a first
defense. If that wall is breached, because the limited remedy has
failed of its essential purpose, the seller still would prefer at least not
to be liable for potentially unlimited consequential damages, and so
he builds a second inner rampart as a fallback position. That inner
wall is higher, and more difficult to scaleBit falls only if
unconscionable.
    The independent approach has not been immune to criticism, of
course. The Eighth Circuit has rejected the independent approach
under Minnesota law, based on the concern that Aa buyer when
entering into a contract does not anticipate that the sole remedy
available will be rendered a nullity, thus causing additional damages.@
Soo Line R.R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1373 (8th Cir.
1977) (applying Minnesota law). Additionally, one commentator has
chastised the independent approach for Arel[ying] on imprecise
assumptions about the parties= intent and an unpersuasive
interpretation of section 2B719.@ K. Murtagh, Note, UCC Section
2B719: Limited Remedies and Consequential Damage Exclusions, 74
Cornell L. Rev. 359, 362 (1989) (concluding that independent
approach is Ainherently weak@). This article suggests that by engaging
in Aliteral construction of the parties= contract,@ the independent
approach Aencourages overly formalistic drafting,@ which Aunfairly


                                  -14-
favors the party who can afford sophisticated bargaining techniques
to ensure the use of his contract terms.@ 74 Cornell L. Rev. at 363.
The article also contends that it is erroneous to conclude that the
parties intend to shift the risk of consequential loss to the buyer,
because A[t]he language structure itself does not indicate that the
parties even considered the possibility of the ineffective limited
remedy.@ 74 Cornell L. Rev. at 364. Adams and Jones & McKnight,
two of the earliest cases adopting the dependent approach, implicitly
concluded that the independent approach was simply unfair to the
buyer. See Adams, 125 Ill. App. 2d at 402-03; Jones & McKnight,
320 F. Supp. at 43-44.
    We recognize these objections to the independent approach, but
do not find them compelling. The reasoning in Adams and Jones &
McKnight, for example, is based on the seller=s failure to perform
being willful. This incorporates considerations of bad faith on the
part of the seller. As we discuss below, the seller=s bad faith is a
possible basis for finding enforcement of a limitation of
consequential damages to be unconscionable. However, the
dependent approach strips away limitations of consequential damages
whenever a limited remedy fails of its essential purpose, without
regard to the good or bad faith of the seller, which we believe goes
too far.
    The objections to the independent approach in Soo Line and the
law review article noted above are similarly unpersuasive. Both argue
that the independent approach is unfair because the buyer may not
intend to renounce consequential damages when the limited remedy
has failed of its essential purpose. Soo Line, 547 F.2d at 1373; 74
Cornell L. Rev. at 364. But this seems to ignore the plain language of
the contract in a fundamental wayBfor if the buyer does not intend to
renounce consequential damages when the limited remedy has failed,
in what context could the disclaimer of consequential damages
operate? As noted above, we believe this is a fundamental defect in
the dependent approach, that it renders the disclaimer of
consequential damages an utter nullity. If a limited remedy has not
failed of its essential purpose, that is of course the buyer=s only
remedy, by definitionBthis is what it means to have a limited remedy.
So in this circumstance a disclaimer of limited damages would be of
no effect because it would be redundant. If, as the above critics argue,
the disclaimer of limited damages ought not to be enforced when the
limited remedy has failed of its essential purpose, the language would

                                 -15-
never have any effect. Moreover, to the extent that the independent
approach encourages parties to pay attention in the drafting process
(see 74 Cornell L. Rev. at 363), we see this as a point in favor of the
independent approach, rather than the contrary.
     Plaintiff objects that Illinois has always followed the dependent
approach, and for this court now to endorse the independent approach
would unnecessarily reverse Athirty-five (35) years of commercial law
in the State of Illinois law that has repeatedly embraced the
>dependent= approach.@ We disagree with the premise of this
argument. It is true that Adams endorsed the dependent approach over
35 years ago. See Adams, 125 Ill. App. 2d at 402-03. But intervening
case law from our appellate court has not consistently followed the
dependent approach. More recently, for instance, our appellate court
stated:
             AIn remedy limitation cases, the court must make three
         inquiries:
                 >(1) whether the contract limited the remedy to repair
             or replacement; (2) whether, if the remedy were so
             limited, it failed of its essential purpose; and (3) whether,
             if the limited remedy failed of its essential purpose,
             consequential damages may be recovered because their
             exclusion is unconscionable.= @ (Emphases added.)
             Intrastate Piping & Controls, Inc. v. Robert-James Sales,
             Inc., 315 Ill. App. 3d 248, 256 (2000), quoting Myrtle
             Beach Pipeline Corp. v. Emerson Electric Co., 843 F.
             Supp. 1027, 1041 (D.S.C. 1993).
Regardless of whether this language is dictum, as plaintiff argues, it
is a clear endorsement of the independent approach. Other case law
has evinced a confusion as to whether the independent or dependent
approach is to be followed. Compare Lara v. Hyundai Motor
America, 331 Ill. App. 3d 53, 61 (2002) (quoting the above Athree
inquiries@ language from Intrastate Piping), with Lara, 331 Ill. App.
3d at 63 (holding that A[i]f *** the limited remedy of replacement or
repair of defective parts failed of its essential purpose, the express
warranty=s exclusion of consequential and incidental damages will
have no effect and those damages will be available to plaintiff
pursuant to the UCC@). We note also that in that portion of its opinion
which endorsed the dependent approach, the Lara courtBlike
AdamsBcited section 2B719(2) of the UCC but failed to acknowledge


                                  -16-
section 2B719(3). See Lara, 331 Ill. App. 3d at 63; Adams, 125 Ill.
App. 2d at 403. Illinois decisions dealing with the
independent/dependent issue under the UCC have not been
consistent. We believe that it is appropriate and necessary that we
decide this question.
    Moreover, we disagree with the reasoning, although not
necessarily the result, in Adams. There, in refusing to enforce the
consequential damages limitation, our appellate court focused on the
allegedly tortious nature of defendants= conduct which caused the
limited remedy to fail of its essential purpose. The court concluded
that defendants were entitled to none of the protections included in
the contract because they had Arepudiat[ed] *** their obligations
under the warranty.@ This implies that the sellers= alleged bad faith in
repudiating their obligations under the warranty played a part in the
analysisBbut the dependent approach does not take the seller=s good
or bad faith into account. Under the dependent approach, the seller is
stripped of the protection of a consequential damages disclaimer once
a limited remedy has failed of its essential purpose, regardless of the
seller=s good or bad faith.
    A seller=s deliberate or negligent failure to supply a limited
remedy can be taken into consideration in determining whether
enforcement of a consequential damages waiver is unconscionable.
The unconscionability determination is not restricted to the facts and
circumstances in existence at the time the contract was entered into.
Pierce, 2 P.3d at 623, quoting Chatlos Systems, 635 F.2d at 1087 (Ain
addition to inquiring into the circumstances at the time of the sale,
courts examine the case >from the perspective of later events= @).
Indeed, section 2B719(3) itself expressly provides that matters which
become known only subsequent to the drafting of the contractBi.e.,
the type of injuries suffered as a result of breachBare relevant to the
unconscionability calculus. 810 ILCS 5/2B719(3) (West 2000)
(ALimitation of consequential damages for injury to the person in the
case of consumer goods is prima facie unconscionable but limitation
of damages where the loss is commercial is not@); see also 810 ILCS
5/2B719, Uniform Commercial Code Comment 3, at 488 (Smith-Hurd
1993) (Aclauses limiting or excluding consequential damages ***
may not operate in an unconscionable manner@ (emphasis added)).
As many of the authorities favoring the dependent approach have
noted, there is rarely any basis for concluding that when the parties
entered into their contract, the buyer intended to assume the risk of

                                 -17-
the seller=s willful or negligent default on his only obligation for
breach of warranty. 3 It may well be that in a case such as Adams,
where the defendant is alleged to have acted in bad faith, the correct
result would be to declare a consequential damages exclusion
unenforceable. See McNally Wellman Co. v. New York State Electric
& Gas Corp., 63 F.3d 1188, 1198 n.9 (2d Cir. 1995) (noting that
Asection 1B203 of the UCC, which states that >[e]very contract or duty
within this Act imposes an obligation of good faith in its performance
or enforcement,= @ supports the conclusion that bad faith could vitiate
a section 2B719(3) consequential damages exclusion). Accordingly,
we believe that a plaintiff must be allowed to point to a defendant=s
conduct, or any other circumstance which he believes would make
enforcement of a consequential damages exclusion unconscionable.
But the plain language of the UCC indicates that this step, of
evaluating whether the exclusion is unconscionable, must be taken
before a contractual consequential damages exclusion may be done
away with. See 810 ILCS 5/2B719(3) (West 2000).
    We conclude that the independent approach is the better-reasoned
and more in accordance with the plain language of the UCC. This
conclusion is buttressed by the fact that a majority of jurisdictions to
consider the issue have adopted the independent approach. Illinois
generally follows the majority interpretation of UCC provisions, in
order to serve the underlying UCC policy of A >mak[ing] uniform the
law among the various jurisdictions.= @ Connick v. Suzuki Motor Co.,
174 Ill. 2d 482, 491 (1996), quoting 810 ILCS 5/1B102(2)(c) (West
1994). Contractual limitations or exclusions of consequential
damages will be upheld unless to do so would be unconscionable,
regardless of whether the contract also contains a limited remedy
which fails of its essential purpose.

                         B. Unconscionability
       Accordingly, the mere fact that the jury found the limited remedy

   3
   However, as we previously observed, we do not find this to be a
compelling argument for the dependent approach itself, which strikes
consequential damage limitations regardless of the seller=s good faith.




                                   -18-
to have failed of its essential purpose does not destroy the provision
in the warranty excluding consequential damages. However, this does
not mean that the exclusion of consequential damages will
necessarily be upheld. Rather, that provision must be judged on its
own merits to determine whether its enforcement would be
unconscionable. 810 ILCS 5/2B719(3) (West 2000).
     A determination of whether a contractual clause is
unconscionable is a matter of law, to be decided by the court. 810
ILCS 5/2B302(1) (West 2000); Frank=s Maintenance & Engineering,
Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 989 (1980).
Unconscionability can be either Aprocedural@ or Asubstantive@ or a
combination of both. Frank=s Maintenance, 86 Ill. App. 3d at 989.
But see Rosen v. SCIL, LLC., 343 Ill. App. 3d 1075, 1081 (2003) (for
a term to be found unconscionable, it must be both procedurally and
substantively unconscionable); 1 Farnsworth, Farnsworth on
Contracts '4.28, at 585 (3d ed. 2004) (AMost cases of
unconscionability involve a combination of procedural and
substantive unconscionability,@ although contracts may be voidable
without substantive unconscionability if the procedural
unconscionability        is    sufficiently     severe).      Procedural
unconscionability refers to a situation where a term is so difficult to
find, read, or understand that the plaintiff cannot fairly be said to
have been aware he was agreeing to it, and also takes into account a
lack of bargaining power. Frank=s Maintenance, 86 Ill. App. 3d at
989. Substantive unconscionability refers to those terms which are
inordinately one-sided in one party=s favor. Rosen, 343 Ill. App. 3d at
1081.
     Hyundai argues that plaintiff introduced no evidence to support
the trial court=s determination that the consequential damages
exclusion was unconscionable. We disagree. The record reveals a
number of facts which tend to support a finding of unconscionability.
 The warranty was entirely preprinted. PlaintiffBa consumerBhad no
hand in its drafting, and no bargaining power at all with respect to its
terms. Moreover, the clause in question is intended to limit the
drafter=s liability. Each of these facts leads this court to disfavor the
clause. See Pierce, 2 P.3d at 623 (ACourts are more likely to find
unconscionability when a consumer is involved, when there is a
disparity in bargaining power, and when the consequential damages
clause is on a pre-printed form@); Frank=s Maintenance, 86 Ill. App.
3d at 992 (although UCC permits clauses limiting remedies, such

                                 -19-
clauses are disfavored and must be strictly construed). However, we
need notBand we do notBhold that these general circumstances alone
or in combination render the clause unconscionable.
     An additional fact particular to this case tips the balance in
plaintiff=s favor. That is the lack of evidence that the warranty, which
contained the disclaimer of consequential damages, had been made
available to the plaintiff at or before the time she signed the sale
contract. The warranty and its consequential damages exclusion were
contained in the owner=s manual, which was placed in the glove
compartment of the car, where it was unavailable to the consumer
until after she took delivery. No portion of the sale contract
contained in the record before us even mentions the warranty.
Moreover, plaintiff testified without contradiction that she never saw
any part of the written warranty, much less the disclaimer of
consequential damages, until she looked in her owner=s manual after
she had signed the contract and driven the car off the lot. Thus, on
this record, we must conclude that the warranty information,
including the disclaimer of consequential damages, was not made
available to the plaintiff at or before the time she signed the purchase
contract.
     In its petition for rehearing, Hyundai argues that the disclaimer is
not procedurally unconscionable because it was written in capital
letters in Aplain, simple, understandable language, not legalese,@ that
was Aeasy to see and easy to read.@ These aspects of the disclaimer
are irrelevant, however, in the case of a limitation of liability
withheld from the buyer until after the purchase contract has been
signed. It simply does not matter how large the type was or how
clearly the disclaimer was expressed if the consumer did not have the
opportunity to see the language before entering into the contract to
purchase the car. See Frank=s Maintenance, 86 Ill. App. 3d at 991
n.2. As previously noted, procedural unconscionability refers to a
situation where a term is so difficult to find, read, or understand that
the plaintiff cannot fairly be said to have been aware he was agreeing
to it. Surely, whatever other context there might be in which a
contractual provision would be found to be procedurally
unconscionable, that label must apply to a situation such as the case
at bar where plaintiff has testified that she never saw the clause nor
is there any basis for concluding that plaintiff could have seen the
clause, before entering into the sale contract. A[A] limitation of
liability given to the buyer after he makes the contract is ineffective.@

                                 -20-
Frank=s Maintenance, 86 Ill. App. 3d at 991 n.2.
     In seeking a rehearing, Hyundai protests that our conclusion that
in this case the disclaimer was unconscionable and thus
unenforceable will have catastrophic effects on commerce. The basis
of Hyundai=s complaint is that the warranty, which runs between
Hyundai and plaintiff, is not a term of the sale contract, which was
formed between Gartner and plaintiff and to which Hyundai is not a
party. Hyundai argues that it is wholly unfair to condition
enforceability of the terms of the warranty on anything having to do
with the sale contract, because there is no evidence that Hyundai has
any control over the terms of the sale contract. Hyundai protests that
we have erred in holding that the disclaimer in its warranty is
unenforceable simply because that warranty was not included in the
sale contract. Some clarification is in order.
     First, Hyundai offers no support for its argument that it is unfair
to bind a manufacturer by the actions of a seller. Our own research
has not unearthed a great deal of sympathy for such an argument.
See, e.g., Wilbur v. Toyota Motor Sales, U.S.A., 86 F. 3d 23 (2d Cir.
1996) (refusing to enforce disclaimer in manufacturer=s warranty
because of date which dealer entered in sale contract). More
importantly, Hyundai=s arguments proceed from a misunderstanding
of our holding. We did not intend to condition enforceability of the
provisions of manufacturer=s warranties on their inclusion in sale
contracts per se. Rather, our concern was that in this case, there was
no evidence that plaintiff had been by any means provided with the
terms of the warrantyBspecifically the disclaimer of consequential
damagesBat or before the time she signed the sale contract. One of the
ways in which plaintiff could potentially have received the warranty
is if it had been contained in the sale contract which she signed, but
this is not the only possibility. Our point was simply that notice of the
contents of the warranty must be provided to the purchaser at or
before the time that the purchase occurs, and the evidence in this case
is wholly and completely to the contrary.
     Perhaps inadvertently, Hyundai has validated our legal analysis in
its petition for rehearing. As Hyundai there admits, the Magnuson-
Moss Act requires the Federal Trade Commission (FTC) to enact a
regulation Arequiring that the terms of any written warranty on a
consumer product be made available to the consumer (or prospective
consumer) prior to the sale of the product to him.@ 15 U.S.C.


                                 -21-
    '2302(b)(1)(A) (1994). Pursuant to this authority, as Hyundai notes,
    the FTC has enacted a regulation that provides:
             AA written warranty must be >part of the basis of the bargain.=
             This means that it must be conveyed at the time of sale of the
             consumer product and the consumer must not give any
             consideration beyond the purchase price of the consumer
             product in order to benefit from the agreement.@ (Emphasis
             added.) 16 C.F.R. '700.11(b) (2000).
    We appreciate Hyundai directing our attention to this regulation
    because it reveals that although our focus was correctBa buyer must
    at least be given the opportunity to learn the terms of a warranty at
    the time the sale contract is signedBwe actually gave plaintiff too
    little protection in our initial disposition of the case. We would have
    been content if the warranty was merely referred to in the sale
    contract, whereas the FTC regulation clearly and unambiguously
    requires that the written warranty itself must be conveyed at the time
    of sale. 16 C.F.R. '700.11(b) (2000). So far as the record in this case
    is concerned, no such conveyance took place.
         Again, the result in this case rests wholly on the evidence
    adduced and the arguments raised in this case. Hyundai contends on
    rehearing that it did Aprovid[e] the limited warranty at the time
    [plaintiff] bought the Sonata,@ but the record in this case does not
    bear that assertion outBthere is no evidence, documentary or
    testimonial, to support Hyundai=s bald assertion that plaintiff was
    provided a copy of the warranty at the time the sale contract was
    signed. This is not a matter of shifting the burden of proof to Hyundai
    (as Hyundai additionally complains on rehearing), 4 because the fact

4
       4
         Hyundai also objects on rehearing that it is unfair to uphold the circuit
    court=s ruling on unconscionability because plaintiff never argued
    unconscionability in her complaint. Hyundai protests that, because of this,
    Hyundai did not receive a fair chance to present evidence on the validity of
    its exclusion, and argues that we ought to treat the unconscionability
    argument as waived. However, we note that the court=s initial ruling
    regarding unconscionability occurred at the time of Hyundai=s motion for a
    directed verdict at the close of plaintiff=s case, before Hyundai began its
    caseBHyundai therefore did indeed have a chance to put on evidence during
    its case in chief, if it had desired to do so. More importantly, Hyundai never
    argued at the circuit court level that plaintiff had waived unconscionability,

                                        -22-
is that plaintiff did produce affirmative evidence that she had never
seen the warranty until after she had purchased the vehicle. Plaintiff
directly and unequivocally so testified during her case in chief.
Hyundai simply failed to rebut this evidence when it had the chance.
The only possible conclusion based on the evidence adduced by both
parties at trial is that, in direct violation of section 700.11(b) (16
C.F.R. '700.11(b) (2000)), the warranty was not conveyed to plaintiff
at the time of sale. We note that other portions of the C.F.R. appear to
differentiate between the duties of a warrantorBsuch as HyundaiBand
the duties of a sellerBsuch as Gartner. See, e.g., 16 C.F.R. '702.3
(2000). However, Hyundai has chosen not to rely on this distinction.
To the contrary, Hyundai contends that Aby providing the limited
warranty at the time [plaintiff] bought the Sonata, Hyundai complied
with both the FTC Rules and the [Magnuson-Moss] Act.@ An
argument could be made that Hyundai has implicitly accepted
responsibility for transmitting the warranty to plaintiff. At the very
least, however, it is clear that Hyundai has utterly failed to raise any
argument based on section 702.3 or any differentiation of
responsibility between itself and Gartner. We decline to accept the
dissent=s invitation to consider section 702.3 sua sponte and decide

and never suggested that the court=s ruling thereon was procedurally unfair,
neither at the time of the court=s ruling nor in its postjudgment motion. If
Hyundai had made this argument in a timely fashion, the trial court could
have dealt with it, either reversing its ruling or possibly amending the
pleadings to conform to the proofs. Hyundai complains that by failing to
argue unconscionability in her pleadings plaintiff waived that theory, but
Hyundai, by failing to argue waiver before the trial court, has itself waived
this waiver argument. See 155 Ill. 2d R. 366(b)(2)(iii); Bullard v. Barnes,
102 Ill. 2d 505, 519 (1984); Fitzpatrick v. ACF Properties Group, Inc., 231
Ill. App. 3d 690, 697 (1992).




                                   -23-
this issue on the basis of an argument the parties have never made,
not in the circuit court, the appellate court, initial briefing before this
court, nor even on rehearing. We intimate no suggestion as to what
the outcome of this or any future case might be if this or any other
argument were properly raised before this court or the circuit court
(see supra footnote 4, discussing Hyundai=s failure to raise waiver
before circuit court).
    To enforce the clause in these circumstances, we conclude, would
indeed be unconscionable. See Frank=s Maintenance, 86 Ill. App. 3d
at 991 n.2 (Aa limitation of liability given to the buyer after he makes
the contract is ineffective@). Accordingly, we affirm the circuit court=s
order to that effect, as well as the $3,500 which represents that
portion of the jury verdict intended to recompense plaintiff for the
consequential damages she incurred.

                          II. Warranty Damages
    The next issue concerns the jury=s $5,000 warranty damage award
for the decreased value of the car due to the no-start condition.
Hyundai does not object to the jury=s conclusion that the vehicle was
defective or that the limited remedy failed of its essential purpose.
Rather, Hyundai contends merely that there was no evidence to
support the jury=s damages award, and argues that because the award
can only have represented a guess by the jury, the court should have
entered judgment notwithstanding the verdict (n.o.v.) in Hyundai=s
favor. Plaintiff responds that she is not required to prove damages
with mathematical precision, and argues that there was sufficient
evidence on damages for the case to go to the jury.
    As the appellate court noted, the standard for entry of judgment
n.o.v. is a high one:
         AA court may enter a judgment n.o.v. only when, viewing the
         evidence in a light most favorable to the nonmoving party, it
         so overwhelmingly favors the movant that a contrary verdict
         could not stand. [Citation.] A defendant=s motion for
         judgment n.o.v. presents > Aa question of law as to whether,
         when all of the evidence is considered, together with all
         reasonable inferences from it in its aspect most favorable to
         the plaintiffs, there is a total failure or lack of evidence to
         prove any necessary element of the plaintiff[=s] case.@ =
         [Citation.]@ 349 Ill. App. 3d at 658.

                                  -24-
     Because the limited remedy failed of its essential purpose,
plaintiff was entitled to pursue the other remedies afforded by the
UCC. 810 ILCS 5/2B719(2) (West 2000). Under the UCC, AThe
measure of damages for breach of warranty is the 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 5/2B714(2) (West 2000). AWhile it is not
necessary that damages for breach of warranty be calculated with
mathematical precision [citation], basic contract theory requires that
damages be proved with reasonable certainty and precludes damages
based on conjecture or speculation [citation].@ Ouwenga v. Nu-Way
Ag, Inc., 239 Ill. App. 3d 518, 523 (1992). Accord Mitsch v. General
Motors Corp., 359 Ill. App. 3d 99, 104 (2005); Valenti v. Mitsubishi
Motor Sales of America, Inc., 332 Ill. App. 3d 969, 973 (2002). See
also Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d
306, 315-16 (1987) (AIn order to recover lost profits, it is not
necessary that the amount of loss be proven with absolute certainty.
*** However, recovery of lost profits cannot be based upon
conjecture or sheer speculation. [Citation.] It is necessary that the
evidence afford a reasonable basis for the computation of damages@).
     In this case there was no sufficient basis for the jury=s $5,000
award. There was no documentary evidence submitted on the
damages question, nor expert testimony. The only possible evidence
of how much the vehicle=s value decreased is plaintiff=s testimony,
and plaintiff=s only testimony which touches on the subject was that
she would not today pay the price she had originally paid for the
vehicle, because Agiven the problems that this vehicleBthat I have had
with this vehicle or the problems the vehicle has had, that=s like a
used car. I would not pay that for a new car with used problems as it
were.@ There is simply no way for the jury to get from this testimony
to a $5,000 award without engaging in speculation and conjecture.
A >[I]n proving damages, the burden is on the plaintiff to establish a
reasonable basis for computing damages.= @ Snelson v. Kamm, 204 Ill.
2d 1, 33 (2003), quoting Gill v. Foster, 157 Ill. 2d 304, 313 (1993). In
this case, plaintiff failed to do so.
     Plaintiff notes that the price of the car was also entered into
evidence and suggests that jurors have sufficient familiarity with cars
and breakdowns that they ought to be permitted to determine for
themselves how much a car=s value would be diminished by events of

                                 -25-
the type which occurred in this case. Plaintiff cites a number of cases
which suggest that damages may be proven in any manner which is
Areasonable,@ and also notes that our appellate court has held that
A[w]here the right of recovery exists the defendant cannot escape
liability because the damages are difficult to prove.@ Burrus v. Itek
Corp., 46 Ill. App. 3d 350, 357 (1977).
     We agree that damages may be proven in any reasonable manner,
as a general proposition of law (see, e.g., Snelson, 204 Ill. 2d at 33)
but this begs the question whether damages were proven in a
reasonable manner in this case. The answer is clearly no. Although
jurors are not required to check their common sense at the courtroom
door (see People v. Steidl, 142 Ill. 2d 204, 238 (1991)), we are not
prepared to endorse the proposition that jurors are as a class
sufficiently familiar with automobiles as to be able to determine the
degree of diminution of a particular vehicle=s value based on a
particular defect without the need for any evidence at all. This is
more than a matter of simple common sense. Plaintiff testified, in
essence, that AIt wasn=t worth what I paid for it.@ There was no
number presented, nothing for the jury to work from.
     Plaintiff argues that the Magnuson-Moss Act and the UCC are to
be construed liberally, and argues that when a plaintiff proves he has
suffered damages, the defendant ought not to escape liability simply
because the precise measure of the damages is difficult to ascertain.
See Burrus v. Itek Corp., 46 Ill. App. 3d 350, 357 (1977). We again
agree with these propositions as a general matter. But regardless,
even assuming that plaintiff suffered some damage, there must be
some basis for a jury=s damage award, and we can see no process
other than speculation by which the jury could have translated the
evidence presented by plaintiff to an award of $5,000. We note that
even in Burrus, itself a UCC case in which a dissatisfied buyer was
attempting to recover for the value of defective goods, the record
included Atestimony@ as to Athe actual value of the defective [goods]
at time of acceptance.@ Burrus, 46 Ill. App. 3d at 357. In this case, by
contrast, there is nothing, truly not a scintilla of evidence to support
any particular verdict at which the jury might have arrivedBmuch less
the suspiciously round number of $5,000.
     However, we feel compelled to note that plaintiff attempted to
introduce such evidence. During plaintiff=s case in chief, the circuit
court precluded plaintiff=s counsel=s from asking plaintiff how much


                                 -26-
she would have paid for the car if she had known of the defects. This
was error, and it was only because of this error that plaintiff failed to
prove damages. Although the decision whether a witness is
competent to testify is a matter within the trial court=s discretion, lay
witnesses are permitted to give their opinion as to the value of
property if they have sufficient personal knowledge of the property
and its value. State Farm General Insurance Co. v. Best in the West
Foods, Inc., 282 Ill. App. 3d 470, 483 (1996). It is true that there
must be an adequate showing of the basis for such testimony before it
will be allowed (Best in the West Foods, 282 Ill. App. 3d at 483), but
in this case, the circuit court preemptively ruled that plaintiff would
not be permitted to testify as to value before plaintiff=s counsel could
attempt to establish the foundation of plaintiff=s knowledge as to the
value of the vehicle. As previously noted, the court ruled that plaintiff
could testify
         Aas to what her feelings were, what her frame of mind was
         and the impact of the slow [sic] start situation on her personal
         feelings. *** But as to >the value of the vehicle would have
         been such and such because of the no start conditions,= I don=t
         see how you=re going to go that far with it.@
This was clearly erroneous.
    Accordingly, although plaintiff=s case failed for proof of damages,
it would be entirely unjust to reverse the verdict outright. As
previously noted, A[w]here the right of recovery exists the defendant
cannot escape liability because the damages are difficult to prove.@
Burrus, 46 Ill. App. 3d at 357 (1977). Accord McGrady v. Chrysler
Motors Corp., 46 Ill. App. 3d 136, 140 (1977). Therefore, pursuant to
our authority under Supreme Court Rule 366(a)(5) (155 Ill. 2d R.
366(a)(5)), we reverse and remand for a new trial solely on the
question of the warranty damages to which plaintiff is entitled. See
Ford Motor Co. v. Cooper, 125 S.W.3d 794, 804 (Tex. Civ. App.
2004) (noting that Aappellate courts have reversed for a new trial
where, among other circumstances, the plaintiff failed to show
damages with reasonable certainty, but the interests of justice
required the plaintiff be given an opportunity to show the proper
measure of his or her damages,@ and remanding for new trial, where
jury awarded plaintiff $5,000 for breach of automobile warranty
without sufficient evidence of value as delivered).
    At this new trial, plaintiff=s counsel must not be precluded from


                                 -27-
attempting to lay a foundation for plaintiff=s knowledge of the value
of the car. However, of course, the evaluation of the sufficiency of
whatever foundation may be laid to establish plaintiff=s personal
knowledge of the value of the car will be within the circuit court=s
discretion (Best in the West Foods, 282 Ill. App. 3d at 483); we are
not prejudging this question in favor of either party.

                          III. Attorney fees
    Hyundai admits that the Magnuson-Moss Act permits the court to
award attorney fees to a victorious plaintiff. See 15 U.S.C.
'2310(d)(2) (2000). Hyundai=s only argument here is that once we
have reversed the entire verdict in plaintiff=s favor, plaintiff cannot be
considered Avictorious,@ and accordingly we must also reverse the fee
award. Hyundai does not argue nor even suggest that a partial
reversal requires that we remand the cause to the circuit court to
recalculate the fees to which plaintiff=s counsel would be entitled.
However, we have not reversed the entire verdict in plaintiff=s favor.
Accordingly, this argument fails.

                            CONCLUSION
    For the reasons given above, the judgment of the appellate court
is affirmed in part and reversed in part, and the judgment of the
circuit court is also affirmed in part and reversed in part. We remand
for a new trial on the issue of warranty damages.

                            Appellate court judgment affirmed in part
                                                and reversed in part;
                              circuit court judgment affirmed in part
                                                and reversed in part;
                                                    cause remanded.



                 Dissent Upon Denial of Rehearing

   JUSTICE McMORROW, dissenting:
   I initially joined the majority opinion in this case. I remain in
agreement with the majority in its adoption of the independent

                                  -28-
approach in analyzing limitations of remedy and disclaimers of
consequential damages. However, in light of arguments regarding
unconscionability that were raised in Hyundai=s petition for
rehearing, as well as subsequent changes made by the court to its
opinion, I believe that rehearing should be allowed.
     As Hyundai notes in its petition for rehearing, A[t]he effect of this
Court=s decision could be tremendous, and [could] impact all
manufacturers of goods sold in Illinois.@ The majority=s
unconscionability determination imposes an impossible burden on
manufacturers and in the process provides a powerful disincentive for
manufacturers to offer written warranties. In addition, the majority=s
decision on this issue runs counter to federal regulations dealing with
the allocation of responsibility between manufacturers and sellers.
This novel decision represents a dramatic change in state contract law
governing warranty exclusions and undoubtedly will have a far-
reaching impact.
     In part (I)(B) of its opinion, the majority holds, as a matter of
state contract law, that Hyundai=s exclusion of consequential damages
in its manufacturer=s limited warranty is procedurally unconscionable
and therefore may not be enforced. Two factual points form the basis
of the majority=s unconscionability determination: (1) the lack of
evidence that the warranty was present or even referred to in
Gartner=s sales contract, and (2) plaintiff=s testimony that she never
saw any part of Hyundai=s written warranty, including the disclaimer
of consequential damages, until she looked in her owner=s manual
after she had signed the sales contract and driven the car off the lot.
The majority notes that procedural unconscionability refers, inter
alia, to a situation where a term is so difficult to find, read, or
understand that a plaintiff cannot fairly be said to have been aware
that she was agreeing to it. With this definition in mind, the majority
states: A[W]hatever other context there might be in which a
contractual provision would be found to be procedurally
unconscionable, that label must apply to a situation such as the case
at bar where plaintiff has testified that she never saw the clause nor is
there any basis for concluding that plaintiff could have seen the
clause before entering into the sale contract.@ (Emphasis in original.)
Slip op. at 20. In other words, the consequential damages clause was
difficult to find or read (and therefore procedurally unconscionable),
not because it was in small print or because it was relegated to the
back of the contract, but rather because, based on the record

                                  -29-
evidence, it was not Amade available to the plaintiff at or before the
time she signed the sale contract.@ Slip op. at 20.
    In support of its ruling that Hyundai=s consequential damages
clause is unconscionable, the majority points to 16 C.F.R. '700.11(b),
a Federal Trade Commission (FTC) regulation dealing with written
warranties. Section 700.11(b) states, in pertinent part:
        AA written warranty must be >part of the basis of the bargain.=
        This means that it must be conveyed at the time of sale of the
        consumer product ***.@ 16 C.F.R. '700.11(b) (2000).
This requirement that the warranty Amust be conveyed at the time of
sale@ raises two questions. First, what is meant by Aconveyed at the
time of sale@? The majority takes the position that, in order for the
warranty to be conveyed at the time of sale, it must be made available
to the purchaser at or before the time the purchaser signs the sales
contract. In the case at bar, as noted, the warranty was included in the
owner=s manual, which was in the glove compartment of the car, and
plaintiff apparently did not see the warranty until after she signed the
purchase contract and drove the car off the lot. In the majority=s view,
the inclusion of the warranty in the glove compartment of the car did
not constitute the conveying of the warranty at the time of sale.
However, Hyundai appears to argue in its petition for rehearing that
such inclusion of the warranty in the glove compartment did
constitute providing the warranty Aat the time of sale.@ The majority
disagrees, but cites to no authority for its contrary interpretation of
this phrase.
    A more important question with regard to this requirement is
whether it is the warrantor or the retail seller who bears the burden of
conveying the warranty at the time of sale. Section 700.11(b) does
not say. However, this question is answered by section 702.3 (16
C.F.R. '702.3 (2000)). Section 702.3(a), which describes the duties
of a seller, provides, in pertinent part:
             A[T]he seller of a consumer product with a written
        warranty shall make a text of the warranty readily available
        for examination by the prospective buyer by:
                 (1) Displaying it in close proximity to the warranted
             product, or
                 (2) Furnishing it upon request prior to sale and
             placing signs reasonably calculated to elicit the
             prospective buyer=s attention in prominent locations in the

                                 -30-
             store or department advising such prospective buyers of
             the availability of warranties upon request.@ 16 C.F.R.
             '702.3(a) (2000).
Section 702.3(b), which describes the duties of a warrantor, provides,
in pertinent part, that a warrantor shall:
             AProvide sellers with warranty materials necessary for
        such sellers to comply with the requirements set forth in
        paragraph (a) of this section, by the use of one or more by the
        following means:
                  (A) Providing a copy of the written warranty with
             every warranted consumer product[.]@ 16 C.F.R.
             '702.3(b)(1)(i) (2000).
Under section 702.3, it is the retail seller=s obligation to make the
written warranty available to the prospective buyer at the point of
sale. The manufacturer, on the other hand, is required only to provide
the retail seller with the warranty materials that the seller will need to
meet this obligation. 16 C.F.R. ''702.3(a), (b)(1)(i) (2000). Thus, in
the case at bar, it was Gartner=s obligation to make the written
warranty available to plaintiff. Hyundai=s obligation, on the other
hand, was merely to provide Gartner with the necessary warranty
materials. It is undisputed that Hyundai satisfied this requirement.
    The majority acknowledges section 702.3 and its allocation of
responsibility between the warrantor and the seller. However, the
majority asserts that Hyundai has waived any argument based on
section 702.3. The majority states:
        A[I]t is clear that Hyundai has utterly failed to raise any
        argument based on section 702.3 or any differentiation of
        responsibility between itself and Gartner. We decline to
        accept the dissent=s invitation to consider section 702.3 sua
        sponte and decide this issue on the basis of an argument the
        parties have never made, not in the circuit court, the appellate
        court, initial briefing before this court, nor even on
        rehearing.@ Slip op. at 23.
The majority emphasizes that an argument based on section 702.3
was not raised by the parties in the circuit court, the appellate court,
or in initial briefing before this court. The reason Hyundai did not
raise this argument in the lower courts or on initial briefing before
this court is that it was unnecessary. No argument that Hyundai=s
consequential damages exclusion was procedurally unconscionable

                                  -31-
    was raised in the courts below or in plaintiff=s brief to this court. 5
    With regard to Hyundai=s petition for rehearing, the majority is
    incorrect in asserting that Hyundai Autterly failed@ to raise an
    argument based on differentiation of responsibility. Hyundai pointed
    in its petition to Athe very different roles@ of the warrantor and the
    seller regarding the sales transaction in the case at bar. It is true that,
    in making this argument, Hyundai failed to cite specifically to section
    702.3 of the FTC regulations. However, the majority=s invocation of
    waiver in this instance, solely because Hyundai failed to cite to the
    appropriate section of the regulations, constitutes, in my view, an
    overly technical application of the waiver doctrine. See In re D.F.,
    208 Ill. 2d 223, 238-39 (2003) (the rule of waiver is a limitation on
    the parties and not on the court).
        The majority=s application of the waiver doctrine is objectionable
    for a more fundamental reason as well. In explaining its waiver
    decision, the majority asserts that it will not address sua sponte an
    argument on behalf of Hyundai that was not raised below. However,
    the majority fails to note that its own procedural unconscionability
    rationale for declining to enforce Hyundai=s exclusion was itself
    raised sua sponte. As previously indicated, no argument was raised in
    the courts below or in plaintiff=s brief to this court that Hyundai=s
    consequential damages exclusion was procedurally unconscionable
    because Hyundai failed to make its warranty available to plaintiff at

5
       5
        In her brief to this court, plaintiff did contend that the disclaimer at
    issue was unconscionable. However, in making this argument, which
    consisted of a single paragraph that contained a block quote, plaintiff
    contended that Hyundai=s warranty exclusion was substantively
    unconscionable in that it was Aan invalid contract of adhesion.@
    Plaintiff did not argue that the warranty exclusion was procedurally
    unconscionable.




                                       -32-
the time she signed the purchase contract. This argument is raised for
the first time by this court in its opinion in the case at bar. The
unavoidable implication of the majority=s refusal to consider the
section 702.3 contention is that it is perfectly acceptable for this court
to raise, sua sponte, an argument on behalf of one party, while
nevertheless declining to consider, sua sponte, an argument on behalf
of the opposing party. While I do not believe that the majority intends
this implication, it necessarily follows, and it undoubtedly will be a
message taken from the majority=s decision in this case.
     The majority attempts to limit the impact of its procedural
unconscionability holding by asserting that the outcome might be
different if section 702.3 were properly raised. The majority states:
AWe intimate no suggestion as to what the outcome of this or any
future case might be if this or any other argument were properly
raised before this court or the circuit court.@ Slip op. at 23. I disagree
with this assertion. The majority today concludes, as a matter of state
contract law, that an exclusion in a limited warranty is unenforceable
where a manufacturer fails to make the warranty available to the
consumer at or before the time the purchase contract is signed. While
the relevant FTC regulations contradict this holding, these regulations
are not necessarily controlling. The majority cites to section
700.11(b) merely as support for its holding that Hyundai=s warranty
exclusion is unconscionable. The majority=s decision regarding the
unconscionability of warranty exclusions will stand regardless of
whether section 702.3 is properly raised in a future case.
     I note, in addition, that there are difficulties with the majority=s
unconscionability holding even when considered solely as a matter of
state contract law, without reference to the federal regulations. In
finding Hyundai=s consequential damages disclaimer unconscionable,
the majority concludes that this exclusion is void and unenforceable
as a matter of public policy. The clear implication of such a holding
is that Hyundai did something wrong, such as hiding the exclusion
Ain a maze of fine print.@ Frank=s Maintenance & Engineering, Inc. v.
C.A. Roberts Co., 86 Ill. App. 3d 980, 990 (1980). However, in the
case at bar Hyundai committed no such infraction. Instead, Hyundai=s
transgression was that it failed to make the warranty Aavailable to the
plaintiff at or before the time she signed the sale contract.@ Slip op. at
20. This raises the question of how Hyundai could have avoided this
transgression and ensured that the warranty was conveyed to plaintiff.
The majority insists that the inclusion of the warranty in the purchase

                                  -33-
contract is not the only way in which Aplaintiff could *** have
received the warranty.@ There are other possibilities, the majority
asserts, but these possibilities are not identified. Slip op. at 21.
    If the warranty must be made available to the consumer at or
before the time the purchase contract is signed, and if, as the majority
concludes, the warrantor may not rely on the seller to meet this
responsibility, then there is, in my view, only one possible way in
which the warrantor could satisfy this obligation. The warrantor must
have a representative physically present on the seller=s premises to
make sure that the warranty is conveyed to the consumer, thereby
ensuring the warranty=s enforceability. A moment=s reflection reveals
the unreasonableness of such a requirement. Under the majority=s
holding, which is not limited to automobile manufacturers, any
manufacturer who warrants a product sold at a retail outlet would
need to hire representatives for each of the many such outlets that
sold the manufacturer=s products. This is an impossible burden to
place on the manufacturer. It is unreasonable for the majority to hold
Hyundai responsible for failing to do something that cannot
realistically be achieved.
    There is another way in which the majority=s decision here is
objectionable. The majority reasons that, because Hyundai=s
consequential damages disclaimer was not provided to plaintiff at or
before the time she signed the purchase contract, this exclusion was
not part of the agreement and is void and unenforceable. However,
according to the record evidence cited by the majority, it was the
entire warranty, and not just the consequential damages exclusion,
that was unavailable to plaintiff at the time she signed the contract.
As the majority asserts:
         A[P]laintiff testified without contradiction that she never saw
         any part of the written warranty, much less the disclaimer of
         consequential damages, until she looked in her owner=s
         manual after she had signed the contract and driven the car
         off the lot. Thus, on this record, we must conclude that the
         warranty information, including the disclaimer of
         consequential damages, was not made available to the
         plaintiff at or before the time she signed the purchase
         contract.@ (Emphasis in original.) Slip op. at 20.
Under the majority=s reasoning, if the consequential damages
exclusion is void because it was not made available to plaintiff and


                                 -34-
was not part of the agreement entered into by plaintiff, the same is
also true of the warranty as a whole. It follows that, if the warranty
itself is void, i.e., not part of the agreement, plaintiff should not be
able to bring suit against Hyundai under the warranty. Nevertheless,
in the case at bar, the majority holds, sua sponte, that Hyundai=s
exclusion is void because it was not conveyed to plaintiff. The
majority does not, however, reach the same conclusion regarding the
warranty as a whole. This is inconsistent.
    The majority=s holding regarding Hyundai=s consequential
damages disclaimer is objectionable for yet another reason. In my
view, the majority=s decision on this issue is detrimental to
consumers. By holding that Hyundai=s consequential damages
exclusion is unenforceable because Hyundai failed to do something
that it could not realistically accomplish, the majority is discouraging
manufacturers from offering written warranties at all. While a
manufacturer=s decision to provide such warranties undoubtedly is
influenced by competitive pressures, the benefits of offering a
warranty will be considerably diminished if the manufacturer has no
control over the scope of the warranty offered. Under the majority=s
holding, the ability of a manufacturer to control this scope through
exclusions such as a disclaimer of consequential damages is severely
constrained, if not eliminated. Faced with such a prospect, a
manufacturer might very well conclude that it is no longer cost
effective to offer a written warranty. Such a result would indeed be
anticonsumer
    In its petition for rehearing, Hyundai argues that the majority
erred in basing its unconscionability determination on the lack of
evidence that the warranty was included in the purchase contract.
Hyundai contends that, as a warrantor, it has no control over the
terms of the sales contract, which is between Gartner (not Hyundai)
and plaintiff, and is a document entirely separate from the warranty
between Hyundai and plaintiff. In responding to this argument, the
majority asserts that it is not Aunfair to bind a manufacturer by the
actions of a seller@ (slip op. at 21). In support of this proposition, the
majority points to Wilbur v. Toyota Motor Sales, U.S.A., 86 F.3d 23
(2d Cir. 1996). Wilbur is clearly distinguishable from the case at bar.
    The plaintiff in Wilbur sued Toyota Motor Sales (Toyota) for
refusing to honor its new car warranty on her Toyota Camry. The
plaintiff bought the car in May 1992 from Tri-Nordic Toyota (Tri-


                                  -35-
Nordic), which had used it as a demonstrator for several months prior
to the sale. Before the plaintiff bought the car, Tri-Nordic told her
that, during the time the car was being used as a demonstrator, it had
been in an accident that required nearly $4,000 in repairs. However,
Tri-Nordic told the plaintiff that the car had been fully repaired and
had sustained no structural damage. At the time of the plaintiff=s
purchase of the car, the plaintiff received a copy of Toyota=s
warranty, which stated that the warranty went into effect A >on the
date the vehicle is first delivered or put into use (in-service date).= @
Wilbur, 86 F.3d at 24-25. Tri-Nordic filled in the in-service date as
A5/18/92,@ the date the plaintiff bought the car. The warranty also
stated that A >repairs and adjustments required as a result of ...
accident ... are not covered.= @ Wilbur, 86 F.3d at 25. In June 1992 the
plaintiff began experiencing problems with the car, but when she took
it in for repairs, she was told that the repairs were excluded from
coverage because the vehicle had sustained structural damage in an
accident. Following the filing of the plaintiff=s suit for breach of
warranty, Toyota moved for summary judgment, and the motion was
granted. A main issue on appeal was whether Toyota=s warranty, with
its accident exclusion, went into effect on the date that the plaintiff
bought the car or on the date several months previously when it was
delivered to Tri-Nordic. If it went into effect when the car was
delivered to Tri-Nordic, this would mean that the warranty=s
exclusion for accidental damage applied from that date, and there was
thus no warranty coverage for any repairs resulting from the accident.
If, however, the warranty did not go into effect until the plaintiff
bought the car, the accidental damages exclusion would not have
taken effect until after the accident took place, and the repairs
resulting from the accident would be covered. The Court of Appeals
held that the warranty went into effect on the date the plaintiff bought
the car. The court therefore reversed the grant of summary judgment
in favor of Toyota. In reaching this conclusion, the court conceded
that Ait was the actions of Tri-Nordic, not Toyota, which resulted in
the damage to the car that in turn led to this lawsuit.@ Wilbur, 86 F.3d
at 27. However, the court added that Toyota Agave its dealer the
authority to fill in the in-service date.@ Wilbur, 86 F.3d at 27. In other
words, Toyota would not have been vulnerable to the suit arising
from the accident if Tri-Nordic had not filled in the A5/18/92@ in-
service date on the warranty, which was an action that Toyota had
authorized Tri-Nordic to take. The court concluded that the plaintiff=s

                                  -36-
breach-of-warranty claim Acannot be defeated on Toyota=s motion for
summary judgment and must be allowed to proceed to trial.@ Wilbur,
86 F.3d at 27.
     While it was Tri-Nordic=s actions that led to the accident in
Wilbur, this accident was problematic for Toyota only because of the
in-service date that Tri-Nordic filled in on the warranty. As noted,
Toyota had authorized Tri-Nordic to fill in this date. In the case at
bar, on the contrary, any error on the part of Gartner in failing to
include the warranty in the sales contract was not authorized by
Hyundai.
     With regard to whether a manufacturer may be bound by the
actions of a seller, the most that can be concluded from Wilbur is that,
where the warrantor authorized the actions of the seller, the
warrantor=s disclaimer may be held unenforceable. However, Wilbur
has no application to the case at bar, where any error on the part of
the seller in failing to include the warranty in the purchase contract
clearly was not authorized by Hyundai. The majority=s reliance on
Wilbur is misplaced.
     In sum, I disagree with the majority=s unconscionability
determination for several reasons. Under the majority=s novel holding,
which represents a dramatic change in state contract law,
manufacturers now face an impossible hurdle in attempting to ensure
that their warranty exclusions are enforceable. A possible result is that
manufacturers will conclude it is no longer cost-effective to offer
written warranties. This result, as noted, would be decidedly
anticonsumer. Moreover, in holding Hyundai responsible for failing to
make its warranty available to plaintiff at the time she signed the
purchase contract, the majority directly contradicts the relevant FTC
regulations, particularly section 702.3, which provides that it is the
seller=s responsibility to make the warranty available to the purchaser
at the point of sale. In addition, by raising an argument, sua sponte, on
behalf of plaintiff but declining, at the same time, to consider, sua
sponte, an argument on behalf of Hyundai, the majority sends an
unfortunate message regarding the fairness of this court=s approach to
arguments raised on behalf of parties who appear before us.
     Because of my disagreement with the majority on these points, I
respectfully dissent from the modification of the opinion upon denial
of rehearing. It is my belief that this court could benefit from briefing
on these matters. I note, too, that this court allows successive petitions


                                 -37-
for rehearing where a majority opinion has been modified upon denial
of rehearing. In light of the extensive modifications made by the
majority here, I suggest the filing of such a petition. For the foregoing
reasons, I vote to grant Hyundai=s petition for rehearing.




                                 -38-
