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

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JOANN M. COGLEY,                        ) Appeal from the Circuit Court
                                        ) of Du Page County.
      Plaintiff-Appellant,              )
                                        )
v.                                      ) No. 05--AR--1374
                                        )
DAIMLERCHRYSLER CORPORATION             )
and ELMHURST DODGE, INC.,               ) Honorable
                                        ) Terence M. Sheen,
      Defendants-Appellees.             ) Judge, Presiding.
_________________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       On April 20, 2005, plaintiff, Joann M. Cogley, filed a three-count complaint in the circuit

court of Du Page County against defendants, DaimlerChrysler Corporation (DaimlerChrysler) and

Elmhurst Dodge, Inc. (Elmhurst Dodge), seeking relief under the Magnuson-Moss Warranty-Federal

Trade Commission Improvement Act (the Magnuson-Moss Act) (15 U.S.C. §2301 et seq. (2000) for

breach of express and implied warranties on a motor vehicle manufactured by DaimlerChrysler and

sold to plaintiff by Elmhurst Dodge. Defendants moved to dismiss pursuant to section 2--619(a)(5)

of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 2004)) on the basis that

plaintiff had not filed her complaint within the applicable four-year limitations period. The trial

court granted the motion, and plaintiff brought this appeal. We affirm in part, reverse in part, and

remand.
No. 2--05--1198


       According to her complaint, plaintiff purchased a Dodge Caravan from Elmhurst Dodge on

or about March 31, 2000. The vehicle was sold with a written limited warranty from the

manufacturer. The warranty provided, inter alia, a 3-year/36,000-mile "Basic Warranty" described,

in pertinent part, as follows:

               "The Basic Warranty covers the cost of all parts and labor needed to repair any

       defective item on your vehicle that was supplied by DaimlerChrysler Motors Corporation--

       that is, defective in material, workmanship, or factory preparation. There is no list of

       covered parts since the only exception is tires. You pay nothing for these repairs. These

       warranty repairs or adjustments--including all parts and labor connected with them--will be

       made by your dealer at no charge, using new or remanufactured parts."

       Plaintiff alleged that she began to experience various problems with the vehicle shortly after

the purchase and that, between April 2002 and March 2005, she took the vehicle to the

"Manufacturer's authorized agent/dealer, seller" for service on at least nine occasions. Eight of those

visits related to problems with the vehicle's serpentine drive.

       Count I of plaintiff's complaint alleged that defendants breached the written warranty. Count

II alleged that defendants breached an implied warranty of merchantability under section 2--314 of

the Uniform Commercial Code (UCC) (810 ILCS 5/2--314 (West 2004)). Count III alleged that

plaintiff had revoked acceptance of the vehicle.

       Plaintiff argues on appeal that the trial court erred in dismissing counts I and III of her

complaint. She does not challenge the dismissal of the claim for breach of an implied warranty of

merchantability (count II). We begin our analysis by noting that an order granting a motion to

dismiss under section 2--619 of the Code is reviewed de novo. Zahl v. Krupa, 365 Ill. App. 3d 653,



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658 (2006). Turning to the merits, we observe that the Magnuson-Moss Act "was designed to

protect consumers from deceptive warranty practices by establishing standards for the form and

content of written warranties." Lysek v. Elmhurst Dodge, Inc., 325 Ill. App. 3d 536, 539 (2001).

The Magnuson-Moss Act also provides that a consumer who is damaged by a warrantor's failure to

comply with an obligation under the Act or under a written or implied warranty may bring a suit for

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

brought in state court or, if the amount in controversy reaches a certain level, in federal court. 15

U.S.C. §2310(d)(1), (d)(3) (2000). For purposes of the Magnuson-Moss Act, "written warranty"

means:

                        "(A) any written affirmation of fact or written promise made in connection

                with the sale of a consumer product by a supplier to a buyer which relates to the

                nature of the material or workmanship and affirms or promises that such material or

                workmanship is defect free or will meet a specified level of performance over a

                specified period of time, or

                        (B) any undertaking in writing in connection with the sale by a supplier of a

                consumer product to refund, repair, replace, or take other remedial action with

                respect to such product in the event that such product fails to meet the specifications

                set forth in the undertaking,

         which written affirmation, promise, or undertaking becomes part of the basis of the bargain

         between a supplier and a buyer for purposes other than resale of such product." 15 U.S.C.

         §2301(6) (2000).




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

the statute of limitations begins to run on a Magnuson-Moss Act claim based on the sort of written

warranty at issue in this case--one in which a manufacturer or seller promises to repair goods rather

than (or in addition to) promising that they are free from defects or will perform in a certain way.

In Cosman v. Ford Motor Co., 285 Ill. App. 3d 250 (1996), the fourth division considered the

timeliness of a Magnuson-Moss Act claim by the purchasers of a motor home covered by two

warranties. One of the warranties was a 6-year/60,000-mile written limited warranty that provided,

" 'Ford warrants that your selling dealer will repair, replace, or adjust all parts (expect [sic] tires) that

are found to be defective in factory-supplied materials or workmanship.' " Cosman, 285 Ill. App.

3d at 257. The plaintiffs purchased the motor home in September 1989 and first experienced

problems with it in June 1990. After repeated unsuccessful attempts by the dealer to repair the

problems, the plaintiffs filed suit in April 1994. The trial court concluded that a Magnuson-Moss

Act claim is subject to the four-year statute of limitations set forth in section 2--725 of the UCC,

which provides:

                "(1) An action for breach of any contract for sale must be commenced within 4 years

        after the cause of action has accrued. By the original agreement the parties may reduce the

        period of limitation to not less than one year but may not extend it.

                (2) A cause of action accrues when the breach occurs, regardless of the aggrieved

        party's lack of knowledge of the breach. A breach of warranty occurs when tender of

        delivery is made, except that where a warranty explicitly extends to future performance of

        the goods and discovery of the breach must await the time of such performance the cause of




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No. 2--05--1198


       action accrues when the breach is or should have been discovered." 810 ILCS 5/2--725

       (West 2004).

       The trial court in Cosman reasoned that the cause of action accrued upon delivery of the

motor home to the plaintiffs in September 1989 and that their suit filed in April 1994 was untimely.

The appellate court observed that "[t]he problem with this analysis and disposition is immediately

apparent: the [plaintiffs] are holding warranties that have not expired, but are unable to legally

enforce them." Cosman, 285 Ill. App. 3d at 253. The Cosman court agreed with the trial court that

section 2--725 was the applicable statute of limitations. However, the court disagreed with the trial

court's conclusion as to when the cause of action accrued.

       The Cosman court observed that, because the Magnuson-Moss Act does not include a statute

of limitations, federal common law dictated that courts apply the state statute of limitations for the

state law cause of action most analogous to the Magnuson-Moss Act claim. Cosman, 285 Ill. App.

3d at 255, citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d

476, 103 S. Ct. 2281 (1983). The Cosman court concluded that a claim for the breach of a sale

contract was most analogous to the plaintiffs' Magnuson-Moss Act claim. Nonetheless, the court

reasoned that the plaintiffs' claim was not for a breach of warranty within the meaning of the UCC

and therefore the rule governing the accrual of breach of warranty claims (as distinguished from

other breach of contract claims) did not apply. Under the UCC:

               "(a) Any affirmation of fact or promise made by the seller to the buyer which relates

       to the goods and becomes part of the basis of the bargain creates an express warranty that the

       goods shall conform to the affirmation or promise.




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No. 2--05--1198


               (b) Any description of the goods which is made part of the basis of the bargain creates

       an express warranty that the goods shall conform to the description.

               (c) Any sample or model which is made part of the basis of the bargain creates an

       express warranty that the whole of the goods shall conform to the sample or model." 810

       ILCS 5/2--313(1) (West 1994).

Thus, the definition of "express warranty" under the UCC is narrower than the definition of "written

warranty" under the Magnuson-Moss Act. The former relates to the quality or performance of goods,

whereas the latter also extends to promises to repair the goods. The Cosman court noted that a mere

promise to repair goods did not fit within the UCC definition of a warranty. Although such a

promise "relates to the goods," the goods cannot "conform" to the promise. Cosman, 285 Ill. App.

3d at 259; accord 1 F. Miller, Hawkland Uniform Commercial Code Series §2--313:4 (2002)

("express warranties relate exclusively to quality, description, and title of the goods and have nothing

to do with the other terms of the contract"). (We will sometimes refer to a UCC-type warranty as

a "quality warranty" and a written promise to repair as a "repair warranty.") Cosman held that the

four-year limitations period for an action on a repair warranty begins to run when that promise to

repair is breached, not on the date of delivery of the goods.

       In Nowalski v. Ford Motor Co., 335 Ill. App. 3d 625 (2002), the third division of the First

District rejected the Cosman court's analysis. The Nowalski court agreed that the UCC statute of

limitations was applicable to a promise to repair a vehicle, but held that the statute of limitations

began to run upon delivery of the vehicle. Unlike the 6-year/60,000 mile warranty in Cosman, the

warranty in Nowalski was for 3 years or 36,000 miles. The Nowalski court observed that this

warranty--unlike the one in Cosman--did not extend past the four-year limitations period. Nowalski



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No. 2--05--1198


reasoned that Cosman read paragraph (2) of section 2--725 of the UCC, which stated that "[a] breach

of warranty occurs when tender of delivery is made," out of existence. 810 ILCS 5/2--725 (2) (West

2004). The Nowalski court accused the Cosman court of engaging in "creative editing, unsupported

by statute or decision." Nowalski, 335 Ill. App. 3d at 632.

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

DaimlerChrysler Corp., 364 Ill. App. 3d 135 (2005), leave to appeal granted, No. 102588 (September

27, 2006). The Mydlach court agreed with the reasoning in Cosman and rejected Nowalski. The

Mydlach court reasoned:

               "[C]ontrary to the Nowalski court's assertion, Cosman does not read section 2--725(2)

       of the UCC out of existence. Rather, Cosman recognizes that section 2--725(2), which is

       based upon a definition of 'warranty' that does not include promises to repair, is not

       applicable in light of the provisions of the Act." Mydlach, 364 Ill. App. 3d at 148.

       We agree with the reasoning in Cosman and Mydlach. Repair warranties (which are

warranties under the Magnuson-Moss Act but not the UCC) are different from quality warranties

(which are warranties under both statutes). The above passage from Mydlach cogently identifies the

flaw in Nowalski's reasoning.

       In this case, the trial court did not reach its decision by choosing among the First District

decisions. Rather, it concluded that it was bound by this court's decision in Nelligan v. Tom Chaney

Motors, Inc., 133 Ill. App. 3d 798 (1985). In Nelligan, the plaintiff alleged, in pertinent part, that

in January 1977 she purchased a Volkswagen Rabbit:

       "[I]n reliance on advertisements, promises and warranties published by defendants; that on

       or about August 1978, plaintiff discovered the vehicle was defective, unsound and wholly



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No. 2--05--1198


        unfit for the use for which it was purchased in the following manners: (a) faulty and defective

        emission control system; (b) faulty and defective engine; (c) faulty and defective carburetor;

        and (d) faulty and defective repair; that plaintiff retained the motor vehicle on the assumption

        that defendants would repair or cure the defects; and that in cooperating with defendants,

        plaintiff returned the motor vehicle on numerous occasions at plaintiff's expense and

        defendants failed to repair, fix and cure the defective product." Nelligan, 133 Ill. App. 3d

        at 800.

No written warranty was attached to the complaint. The defendants successfully moved to dismiss

on the basis that the lawsuit, filed in November 1983, was untimely.

        On appeal, the plaintiff in Nelligan argued that the statute of limitations did not bar her

breach of warranty claims, "because the breach of warranty was discovered within the four-year

period before plaintiff filed suit and did not occur when tender of delivery was made in 1977, as

there was never a conforming tender of delivery." Nelligan, 133 Ill. App. 3d at 801. This court

rejected the argument, noting that the language of the UCC "clearly proscribes the application of the

discovery rule in breach of warranty cases" (Nelligan, 133 Ill. App. 3d at 802), and that holding that

only a "conforming delivery" triggers the statute of limitations "would lead to the absurd result that

the period of limitations never begins to run in cases such as this where a plaintiff takes delivery and

retains possession of goods for a considerable period of time before notifying the seller of possible

defects" (Nelligan, 133 Ill. App. 3d at 802). This court also rejected the plaintiff's argument that the

warranties guaranteed future performance of the vehicle so that, under section 2--725(2), the cause

of action did not accrue until the breach was discovered. This court noted that the statutory

discovery provision applies only when there has been an explicit guarantee of future performance.



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Because the plaintiff had not attached a copy of a written warranty, she could not prevail on this

basis. This court further held that a warrantor's attempts to repair a defective product do not extend

the warranty to future performance. However, this court had no occasion to consider the question

raised in the present appeal: when does a cause of action on a repair warranty accrue? The plaintiff

in Nelligan did not claim that her lawsuit was based on a repair warranty, and there is nothing in our

recitation of the facts of the case to suggest that a repair warranty was at issue. Accordingly,

Nelligan does not govern the disposition of the issue before this court, and the trial court's reliance

on Nelligan was misplaced.

        Defendants' reliance on two other decisions--Jones v. Ford Motor Co., 347 Ill. App. 3d 176

(2004), and Ridle v. Sprayrite Manufacturing Co., 198 Ill. App. 3d 597 (1990)--as support for the

trial court's ruling is similarly misguided. The issue in Jones--whether the plaintiff had established

a basis for equitable tolling of the statute of limitations during the pendency of an arbitration

proceeding--has no bearing on the question raised in this case. Ridle is also inapposite. The two

issues in that case were (1) whether tender of delivery of a crop sprayer occurred when it was initially

delivered to the buyer or when it was redelivered to the buyer after having its engine rebuilt; and (2)

whether the seller had made any explicit warranty concerning future performance of the equipment.

Like Nelligan, Ridle does not address the question of when a cause of action on a repair warranty

accrues.

        Defendants argue that the Mydlach court erred in concluding that the statute of limitations

does not begin to run until a manufacturer has a reasonable opportunity to cure a defect in the

product. We need not decide the issue, however. Even assuming the statute of limitations begins

to run when a product is first brought in for repair, plaintiff's repair warranty claim would be timely.



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No. 2--05--1198


Here, plaintiff alleged that she first took the vehicle in for repair in April 2002. Accordingly, her

lawsuit filed in April 2005 was within the four-year limitations period.

       Defendants also contend that the warranty in question was only a "limited warranty" within

the meaning of the Magnuson-Moss Act and was therefore not subject to the statute's minimum

requirements for "full warranties." See generally 15 U.S.C. §2303(a), 2304 (2000). According to

defendants, in cases arising under limited warranties, the Magnuson-Moss Act serves only as a

"conduit" for claims arising under state law. Even if this statement is true, we fail to see how it has

any bearing on the question of when the statute of limitations begins to run. As seen, all of the

relevant Illinois decisions are in agreement that the Magnuson-Moss Act borrows the UCC's statute

of limitations. This would appear to be true whether state law or federal law governs the substance

of the claim. In other words, for statute of limitations purposes, it should make no difference

whether the Magnuson-Moss Act provides the substantive law or merely serves as a conduit for a

state law claim.

       Defendants also complain that Cosman and Mydlach incorrectly held that the portion of

section 2--725(2) of the UCC providing that "[a] breach of warranty occurs when tender of delivery

is made" is inapplicable to a limited warranty. 810 ILCS 5/2--725(2) (West 2004). Neither case

stands for that proposition. As previously discussed, both cases held that a repair warranty is not a

"warranty" within the meaning of the quoted language. In other words, the operative distinction in

Cosman and Mydlach is not between full warranties and limited warranties, but between repair

warranties and quality warranties.

       Defendants also make the astonishing claim that Mydlach erred in holding that a private right

of action exists under the Magnuson-Moss Act.             Defendants contend that the holding is



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"unprecedented and *** nonsensical" and is not supported by "a scintilla of authority." The assertion

is nothing short of absurd. Section 2310(d)(1) of the Magnuson-Moss Act plainly states that

"[s]ubject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of

a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under

a written warranty, implied warranty, or service contract, may bring suit for damages and other legal

and equitable relief." 15 U.S.C. §2310(d)(1) (2000). Subsection (a)(3) requires resort to informal

dispute settlement procedures prior to filing a lawsuit in some circumstances. 15 U.S.C. §2310(a)(3)

(2000). Subsection (e) requires a plaintiff to give a warrantor a reasonable opportunity to cure a

breach of a warranty before filing a lawsuit other than a class action suit or a lawsuit subject to

subsection (a)(3). 15 U.S.C. §2310(e) (2000). The Magnuson-Moss Act clearly permits an

aggrieved consumer to file a lawsuit under its auspices.

        In view of the foregoing, the trial court erred in dismissing plaintiff's written warranty claim

(count I) as untimely. Count III of her complaint seeks the remedy of revocation of acceptance

based, at least in part, on the breach of the written warranty. Because counts I and III involve the

same underlying breach, the same statute of limitations analysis applies to both counts. Accordingly,

the trial court erred in dismissing count III.

        For the foregoing reasons, we affirm the dismissal of count II of plaintiff's complaint, reverse

the dismissal of counts I and III, and remand the cause for further proceedings.

        Affirmed in part and reversed in part; cause remanded.

        BOWMAN and BYRNE, JJ., concur.




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