                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




              Clemons v. Nissan North America, Inc., 2013 IL App (4th) 120943




Appellate Court            LATESHA CLEMONS, Plaintiff-Appellant, v. NISSAN NORTH
Caption                    AMERICA, INC., Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-12-0943


Filed                      October 11, 2013


Held                       In an action based on the mechanical problems with a used vehicle
(Note: This syllabus       plaintiff purchased from an automobile dealership, plaintiff’s complaint
constitutes no part of     against the manufacturer of the vehicle was improperly dismissed,
the opinion of the court   notwithstanding the manufacturer’s contention that the dealership sold
but has been prepared      the vehicle to plaintiff “as is” and thereby extinguished the written
by the Reporter of         warranty defendant provided at the time it was sold as a new vehicle,
Decisions for the          since defendant failed to present any support for its claim that a third
convenience of the         party can disclaim a manufacturer’s written warranty through “as is”
reader.)
                           language in a sales contract.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 09-L-339; the
Review                     Hon. John Schmidt, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Larry P. Smith (argued) and David Marco, both of SmithMarco, P.C., of
Appeal                     Chicago, for appellant.

                           Bruce S. Terlep (argued) and Amy R. Miller, both of Swanson, Martin &
                           Bell, LLP, of Lisle, for appellee.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Turner concurred in the
                           judgment and opinion.



                                             OPINION

¶1           In June 2009, plaintiff, Latesha Clemons, filed a complaint against defendant, Nissan
        North America, Inc. (Nissan), alleging breach of written warranty pursuant to the Magnuson-
        Moss Warranty–Federal Trade Commission Improvement Act (Act) (15 U.S.C. §§ 2301 to
        2312 (2006)) (count I) and breach of implied warranty (count II). Nissan is an automobile
        manufacturer. In June 2012, Nissan filed a motion to dismiss pursuant to section 2-619 of
        the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), alleging the dealer
        which sold the vehicle disclaimed the warranties through an “as is” clause. In July 2012, the
        trial court granted Nissan’s motion to dismiss.
¶2           Plaintiff appeals, arguing the trial court erred in granting Nissan’s motion to dismiss
        because the manufacturer’s warranty had not been disclaimed. We reverse and remand.

¶3                                        I. BACKGROUND
¶4          On July 24, 2008, plaintiff purchased a used 2007 Nissan Pathfinder with 12,800 miles
        for $27,690 from New York Auto Sales, Inc. (New York Auto), an automobile dealership
        in Aurora, Illinois. Plaintiff began experiencing mechanical problems with the Pathfinder’s
        fuel and exhaust systems and she took it to two Nissan dealerships in the St. Louis, Missouri,
        metropolitan area for repairs.
¶5          In June 2009, plaintiff filed a complaint pursuant to the Act (see 15 U.S.C. § 2310
        (2006)) alleging breach of written warranty and breach of implied warranty, seeking damages
        for the diminution of the Pathfinder’s value and attorney fees. Plaintiff filed her complaint
        in the Cook County circuit court. According to plaintiff, at the time of purchase defendant
        “issued and supplied to [plaintiff] its written warranty, which included three (3) year or
        thirty-six thousand (36,000) mile bumper to bumper coverage, as well as other warranties
        fully outlined in the Warrantor’s New Vehicle Warranty booklet.” Plaintiff did not attach a
        copy of the warranty booklet to her complaint.
¶6          In August 2009, Nissan filed a motion to transfer venue arguing it maintained an office

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       in Springfield, Illinois, and venue was proper in Sangamon County. In December 2009, the
       Cook County circuit court transferred the case to the Sangamon County circuit court.

¶7                                           A. Discovery
¶8         In March 2010, the parties exchanged various discovery responses. Nissan admitted it
       issued a “limited written warranty” for the Pathfinder. Plaintiff submitted several sales
       documents in response to defendant’s request to produce. She submitted two “Buyers Guide”
       window forms from New York Auto. The first guide (see Appendix A) is the required
       window form (see 16 C.F.R. § 455.2 (2012)) and contains two large headings reading “AS
       IS–No Warranty” and “Warranty.” The box next to “Warranty” is checked. Below the
       “Warranty” heading, the document is marked “Limited Warranty.” It states the warranty
       covers 50% of the costs to repair the vehicle’s transmission and engine and is for one month
       or 1,000 miles from the date of purchase, whichever comes first. The second attached
       “Buyers Guide” is in a different format with New York Auto’s name at the top and restates
       the vehicle is covered by a limited warranty as described in the first guide. This guide is
       signed and dated. Plaintiff attached a document appearing to be the sales contract. It is signed
       in plaintiff’s name and contains information about her trade-in vehicle, the Pathfinder,
       financing, and the unpaid balance. The document contains six dark, boxed areas where we
       cannot read the text.
¶9         Plaintiff attached seven invoices for repairs: (1) The invoice dated August 12, 2008,
       shows the Pathfinder had 14,389 miles and a defective exhaust shield clamp was replaced.
       (2) The invoice dated October 30, 2008, shows the Pathfinder had 18,117 miles and a fuel
       pump was replaced. (3) The invoice dated December 16, 2008, shows the Pathfinder had
       21,280 miles. It stated the mechanic took the vehicle for a test drive and it died and the fuel
       pressure dropped to zero. The fuel pump was replaced. (4) The invoice dated December 29,
       2008, shows the Pathfinder had 21,780 miles and the voltage at the fuel pump was 9.45 volts
       rather than 12 volts. The battery was charged. (5) The invoice dated February 4, 2009, shows
       the Pathfinder had 23,289 miles and the crash zone sensor was replaced. (6) The invoice
       dated February 12, 2009, shows the Pathfinder had 23,761 miles and a failed air fuel sensor
       was replaced. (7) The invoice dated July 17, 2009, shows the Pathfinder had 30,284 miles
       and a defective secondary timing chain and tensioner was replaced. The February 2009
       invoices were from Suntrup Automotive Group in St. Louis, Missouri, and the other five
       invoices were from Auffenberg Nissan in O’Fallon, Illinois.
¶ 10       In December 2010, Nissan filed an answer. Nissan admitted it supplies a “written, limited
       warranty” at the time of distribution of a new Nissan motor vehicle. Nissan denied New York
       Auto was an authorized Nissan dealer. Nissan asserted three affirmative defenses, namely
       (1) damages should be reduced by the diminished value of plaintiff’s use; (2) the alleged
       nonconformity, defect, or condition was rectified and repaired; and (3) damages are limited
       by the written, limited warranty issued by Nissan.
¶ 11       On February 22, 2011, plaintiff disclosed her expert witness’s identity and proposed
       testimony. See Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007). The expert was expected to testify the
       Pathfinder had diminished in value by $4,085. The expert’s 20-page vehicle diagnostic report


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       was attached. The report stated the Pathfinder was experiencing emissions and fuel delivery
       issues “directly related” to the oxygen and fuel ratio sensors, and because the sensors are not
       sending correct data the vehicle’s computer system “becomes confused as to how much fuel
       to deliver to the engine system, thus making the vehicle stall at times.”

¶ 12                             B. Nissan’s Motion To Dismiss
¶ 13       On June 19, 2012, Nissan filed a motion to dismiss pursuant to section 2-619 of the
       Code. The motion stated “[a]lthough Plaintiff attached only the retail installment contract to
       the Complaint, and has not produced the sales contract relative to the subject vehicle,
       [Nissan] has recently obtained a copy of the sales contract, which is attached hereto as
       Exhibit 2, and learned that the vehicle was actually sold to Plaintiff ‘as is,’ with no
       warranty.” Nissan argued plaintiff “was informed, in bold language that New York Auto
       Sales was selling the vehicle with no express warranty and no implied warranty of
       merchantability. *** Given that the vehicle was sold ‘as is,’ with no warranty at all as to
       mechanical condition, Plaintiff cannot meet her burden to prove the existence of, and her
       compliance with, the terms and conditions of a warranty given to her by the Defendant at the
       time of sale.”
¶ 14       Nissan did not attach an affidavit in support of its motion. It did attach a document from
       New York Auto dated July 24, 2008. The document does not contain a title but lists
       plaintiff’s personal information, trade-in vehicle, purchase vehicle, and lists the price and
       balanced owed. (It appears to be the same sales document plaintiff provided in March 2010
       but without the darkened areas.) The document states, in bold print, “[T]his vehicle is SOLD
       AS IS with no warranty as to mechanical condition.” The document is unsigned.

¶ 15                        C. The Hearing and the Trial Court’s Order
¶ 16       On June 29, 2012, the trial court held a hearing on Nissan’s motion to dismiss. Nissan
       asserted it had been provided the document from New York Auto on June 13, 2012, and
       accused plaintiff of failing to disclose this document during discovery although dealer
       documents were requested. Plaintiff responded she had disclosed the document and presented
       a signed version of the document to the court. The trial court asked if plaintiff could offer
       proof she had disclosed the document. She could not. The court asked if plaintiff signed the
       sales contract, and she admitted she had.
¶ 17       Nissan argued the Pathfinder was sold “as is” by New York Auto, and the manufacturer’s
       warranty could not be part of the basis of the bargain. Nissan contended New York Auto had
       the right to extinguish any preexisting warranty rights and it did so. By selling the vehicle “as
       is” New York Auto “effectively eviscerated any subsequent legal obligation or
       responsibility” Nissan had.
¶ 18       Plaintiff responded Nissan’s motion was “dilatory” and tantamount to filing a motion to
       continue as it had been filed mere days before trial. On the merits, plaintiff distinguished
       Nissan’s provided authority on the basis New York Auto was not affiliated with Nissan, was
       not its agent, and had no authority to disclaim the warranty. Plaintiff informed the trial court
       Nissan’s expert testified at his deposition repairs were carried out on the Pathfinder under

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       Nissan’s warranty.
¶ 19      On July 2, 2012, the trial court issued a written order. The court cited Mitsch v. General
       Motors Corp., 359 Ill. App. 3d 99, 105, 833 N.E.2d 936, 940 (2005), for the proposition the
       Uniform Commercial Code requires a “conspicuous” disclaimer for such to be effective. The
       order, in relevant part, stated:
               “In the instant case, the defendant properly disclaimed both the express and implied
          warranties. The Plaintiff signed a sales contract disclaiming the vehicle was sold, ‘as is
          with no warranty as to mechanical condition.’ [Footnote: There is no dispute Plaintiff
          signed the sales contract.] The disclaimer language is in a larger type than the previous
          and subsequent type. The term ‘sold as is’ is in all capital letters. The Court finds that
          this disclaimer is in compliance with the law.”
       The court dismissed plaintiff’s complaint.

¶ 20                    D. Plaintiff’s Motion To Reconsider and the Warranty
¶ 21        In July 2012, plaintiff filed a motion to reconsider arguing the trial court’s reliance on
       Mitsch was error because the Pathfinder was still covered by Nissan’s warranty and it is the
       manufacturer, not the dealership, which is attempting to avoid its warranties. Plaintiff argued
       Nissan’s motion did not meet the requirements of section 2-619(a)(9) of the Code (735 ILCS
       5/2-619(a)(9) (West 2012)) because it was not filed within the time for pleading and not
       supported by an affidavit.
¶ 22        Plaintiff attached a signed copy of the sales contract. (See Appendix B) This copy
       contains several dark-shaded boxes, but it is possible to read the text. The “as is” language
       is contained in one of these shaded boxes.
¶ 23        Plaintiff attached the warranty documentation booklet. (See Appendix C) The warranty
       states as follows: (1) “The basic coverage period is 36 months to 36,000 miles, whichever
       comes first”; (2) “This warranty is provided to the original and subsequent owner(s) of a
       Nissan vehicle originally distributed by Nissan which is originally sold by a Nissan
       authorized Nissan dealership in the United States and which is registered in the U.S. and
       normally operated in the United States”; and (3) “This warranty is generally transferable from
       the original ‘owner other than a Nissan dealer’ (OWNER) to subsequent owners of the
       vehicle at any time ownership of the vehicle is transferred, without any action on your part”
       except when the vehicle is registered outside of the United States within six months of
       purchase. The warranty states it is void if the vehicle is issued a salvage title, including flood
       title, or is a total loss, such as the cost of repairs exceeded the actual cash value of the
       vehicle. The warranty does not include language about how the vehicle warranty can be
       disclaimed.
¶ 24        In September 2012, after a hearing, the trial court denied the motion to reconsider.
¶ 25        This appeal followed.

¶ 26                                       II. ANALYSIS
¶ 27       Plaintiff appeals, arguing the trial court erred in granting defendant’s motion to dismiss.

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       Plaintiff contends defendant did not disclaim its manufacturer’s warranty, New York Auto
       could not disclaim the warranty, and the disclaimer in the sales contract relates only to New
       York Auto’s obligations.

¶ 28                                    A. Standard of Review
¶ 29        Section 2-619 of the Code provides a defendant may file a motion for dismissal on nine
       different enumerated grounds, including “[t]hat the claim asserted against defendant is barred
       by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-
       619(a)(9) (West 2012). “Section 2-619(a)’s purpose is to provide litigants with a method of
       disposing of issues of law and easily proved issues of fact–relating to the affirmative
       matter–early in the litigation.” (Emphasis in original.) Reynolds v. Jimmy John’s Enterprises,
       LLC, 2013 IL App (4th) 120139, ¶ 30, 988 N.E.2d 984. The section 2-619 movant, for
       purposes of the motion, “admits all well-pleaded facts and reasonable inferences therefrom.”
       Snyder v. Heidelberger, 2011 IL 111052, ¶ 8, 953 N.E.2d 415. In reviewing the motion,
       “[t]he court must accept as true all well-pleaded facts in plaintiff’s complaint and all
       inferences that may reasonably be drawn in plaintiff’s favor” (Sandholm v. Kuecker, 2012
       IL 111443, ¶ 55, 962 N.E.2d 418) and should only grant the motion “if the plaintiff can prove
       no set of facts that would support a cause of action” (Snyder, 2011 IL 111052, ¶ 8, 953
       N.E.2d 415). “In a section 2-619(a) motion, the movant is essentially saying ‘ “Yes, the
       complaint was legally sufficient, but an affirmative matter exists that defeats the claim.” ’ ”
       Reynolds, 2013 IL App (4th) 120139, ¶ 31, 988 N.E.2d 984 (quoting Winters v. Wangler, 386
       Ill. App. 3d 788, 792, 898 N.E.2d 776, 779 (2008)). A section 2-619 dismissal is reviewed
       de novo. Id.

¶ 30                              B. Nissan’s Section 2-619 Motion
¶ 31       As a threshold matter, we note Nissan’s section 2-619 motion presents two important
       procedural problems, namely, its untimeliness and defendant’s failure to comply with Illinois
       Supreme Court Rule 191 (eff. July 1, 2002). Plaintiff made these arguments before the trial
       court at the motion hearing and in her motion to reconsider, but here proceeds directly to the
       merits. In its brief, Nissan suggests, by way of a footnote, plaintiff did not disclose the sales
       contract because of the “as is” clause and it was plaintiff’s “own inexcusable failure to
       produce the sales contract in the face of an explicit request that caused resolution of this issue
       to be delayed until shortly before trial.” In order to assist the bench and the bar and encourage
       better motion practice, we briefly address these procedural problems.

¶ 32                                  1. The Motion’s Timeliness
¶ 33       Because a section 2-619 motion admits the legal sufficiency of the complaint, filing such
       a motion after filing an answer, without requesting leave to withdraw the answer, is
       procedurally improper. Gulley v. Noy, 316 Ill. App. 3d 861, 866, 737 N.E.2d 1115, 1119
       (2000); see also Ill. S. Ct. R. 191(a) (eff. July 1, 2002) (section 2-619 motions “must be filed
       before the last date, if any, set by the trial court for the filing of dispositive motions”). A
       section 2-619 motion “is intended to be heard and decided before the expense and

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       inconvenience of litigation has been borne by either party or the trial court.” Gulley, 316 Ill.
       App. 3d at 866, 737 N.E.2d at 1119. However, filing an answer does not preclude a section
       2-619 motion, even if it is procedurally improper, and a trial court has discretion to consider
       a section 2-619 motion filed outside the pleadings phase. Id.; Thompson v. Heydemann, 231
       Ill. App. 3d 578, 581, 596 N.E.2d 664, 667 (1992).
¶ 34        Here, Nissan admitted it issued a limited, written warranty for the Pathfinder and filed
       an answer in December 2010. The parties engaged in discovery for approximately a year and
       a half, including procuring an expert witness. Then, in June 2012, approximately 20 days
       before trial, Nissan filed its section 2-619 motion without moving to withdraw its answer.
       The motion was untimely and procedurally improper. The trial court never considered
       whether the motion conflicted with Nissan’s admissions and answer, nor whether it should
       have been treated as a summary judgment motion pursuant to section 2-1005 of the Code
       (735 ILCS 5/2-1005 (West 2010)). See Reynolds, 2013 IL App (4th) 120139, ¶ 53, 988
       N.E.2d 984 (improper section 2-619 motions may be treated as a summary judgment
       motion). Plaintiff argued the motion was “dilatory” and tantamount to a motion to continue
       trial, but she did not argue she was prejudiced by the motion. See Thompson, 231 Ill. App.
       3d at 581, 596 N.E.2d at 667 (plaintiff must show he or she was prejudiced by defendant’s
       section 2-619 motion filed after answer).

¶ 35                          2. Nissan’s Failure To Submit an Affidavit
¶ 36       The movant of a motion for involuntary dismissal pursuant to section 2-619 “ ‘has the
       burden of proof on the motion, and the concomitant burden of going forward.’ ” Reynolds,
       2013 IL App (4th) 120139, ¶ 37, 988 N.E.2d 984 (quoting 4 Richard A. Michael, Illinois
       Practice § 41:8, at 481 (2d ed. 2011)). “It is well settled that the ‘affirmative matter’ asserted
       by the defendant must be apparent on the face of the complaint; otherwise, the motion must
       be supported by affidavits or certain other evidentiary materials.” Van Meter v. Darien Park
       District, 207 Ill. 2d 359, 377, 799 N.E.2d 273, 284 (2003). See Reynolds, 2013 IL App (4th)
       120139, ¶ 34, 988 N.E.2d 984 (an affirmative matter is something, other than the defendant’s
       version of the facts, which negates the cause of action completely). Illinois Supreme Court
       Rule 191 (eff. July 1, 2002) requires affidavits in support of section 2-619 motions to set
       forth with “particularity” the facts upon which the defense is based and attach “sworn or
       certified copies” of the documents relied upon. See Robidoux v. Oliphant, 201 Ill. 2d 324,
       339, 775 N.E.2d 987, 996 (2002) (attached-papers requirement must be strictly followed and
       failure to comply is fatal). Strict compliance with Rule 191(a) is required to insure the trial
       court is presented with valid evidentiary facts on which to base a decision. Id. at 336, 775
       N.E.2d at 994. Basic rules of evidence require a party to lay the proper foundation for the
       introduction of documentary evidence, including its authenticity. Gardner v. Navistar
       International Transportation Corp., 213 Ill. App. 3d 242, 247, 571 N.E.2d 1107, 1110
       (1991); Ill. R. Evid. 901 (eff. Jan. 1, 2011).
¶ 37       Here, Nissan, as the movant, has the burden of proving the existence of an affirmative
       matter. Nissan asserts the “as is” clause affixed by New York Auto, an unaffiliated car lot,
       affirmatively bars plaintiff’s warranty claim because the disclaimer “eviscerated” its


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       obligations to plaintiff. As the “as is” clause was not apparent from the complaint, Nissan
       was required to support its motion by affidavit. Nissan submitted the purported sales
       contract–an unsigned version nonetheless–without an affidavit authenticating the document
       or providing a foundation. (In her reply brief, plaintiff argues Nissan has not provided any
       foundation to rely on the sales contract.) Rather than complying with Rule 191(a), Nissan
       relied on its bare representations the document was what Nissan purported it to be. Then, at
       the motion hearing, Nissan accused plaintiff of not producing the document during discovery.
       The trial court inquired whether this was correct and plaintiff stated it had been disclosed but
       she did not provide any documentary proof. Plaintiff then retrieved a signed copy of the sales
       contract and presented it to the court. The court then inquired whether this had been
       produced; again plaintiff did not provide proof. The court asked whether plaintiff had indeed
       signed the sales contract and she admitted she had. The court’s questioning shifted the
       burden of proof from Nissan to plaintiff. Before the questioning, Nissan had not
       authenticated the document or shown plaintiff even signed it. Absent plaintiff’s admission
       she signed the sales contract, defendant would not be able to carry its burden on the motion
       and it should have been denied.
¶ 38       We note if Nissan sought to accuse plaintiff of failing to comply with discovery it should
       have done so pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002). This would
       have given the parties and the trial court an opportunity to properly determine whether the
       document was disclosed, rather than conducting an impromptu hearing within the motion to
       dismiss hearing. Our review of the record indicates plaintiff supplied a copy of the sales
       contract in March 2010 as part of her response to Nissan’s production request. This copy in
       the record (photocopied an unknown number of times) contains dark areas which we cannot
       read, whereas the copy plaintiff attached to her motion to reconsider contains the dark areas,
       but it is possible to read the text (the “as is” language being in such a darker area). If Nissan
       was not able to read the March 2010 copy, it should have requested a clearer copy.

¶ 39                                 C. The Warranty Claim
¶ 40       While plaintiff’s underlying warranty claim is pursuant to the Act (15 U.S.C. §§ 2301 to
       2312 (2006)), we must keep in mind the Uniform Commercial Code (UCC) (810 ILCS 5/1-
       101 to 13-103 (West 2010)) governs sales of goods, including warranties. Written warranties
       provided with consumer goods must be examined under the requirements of both the Act and
       the UCC. Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 322-23, 722 N.E.2d 227,
       234 (1999). We turn to the legal framework governing warranties.

¶ 41                          1. The Magnuson-Moss Warranty Act
¶ 42        The Act provides a private right of action by a consumer against a supplier or warrantor
       failing to comply with the Act or the terms of a written warranty. 15 U.S.C. § 2310(d)
       (2006). An automobile is a “consumer product” covered by the Act. 16 C.F.R. § 700.1(a)
       (2012). A “warrantor” is “any supplier or other person who gives or offers to give a written
       warranty or who is or may be obligated under an implied warranty.” 15 U.S.C. § 2301(5)
       (2006). Under the Act, a “written warranty” is:

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                “(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.” 15 U.S.C. § 2301(6)(A), (B) (2006).
       See 16 C.F.R. § 700.3 (2012) (interpreting definition). Under the Act, a written warranty
       must include a conspicuous designation as a full warranty or a limited warranty. 15 U.S.C.
       § 2303(a) (2006); 16 C.F.R. § 700.6 (2012) (“Warrantors may include a statement of
       duration in a limited warranty designation.”). Where the warrantor makes a written warranty
       to the consumer, an implied warranty may not be disclaimed or modified but may be limited
       in duration to the duration of the written warranty. 15 U.S.C. § 2308(a), (b) (2006). A
       disclaimer of an implied warranty in violation of the Act is ineffective for state law purposes.
       15 U.S.C. § 2308(c) (2006). See generally 15 U.S.C. § 2310(c)(2) (West 2006) (defining
       “deceptive warranty”).

¶ 43                               2. The Uniform Commercial Code
¶ 44       Under section 2-313(1)(a) of the UCC “[a]ny 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.” 810
       ILCS 5/2-313(1)(a) (West 2010); see also Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d
       307, 322-23, 875 N.E.2d 1047, 1059 (2007) (treating a repair warranty as a promise to repair
       rather than an “express warranty” for purposes of the tender-of-delivery rule). An express
       warranty may be written or oral, and may be created by description, sample, or model. 810
       ILCS 5/2-313 (West 2010). Comment 4 to section 2-313 provides:
           “In view of the principle that the whole purpose of the law of warranty is to determine
           what it is that the seller has in essence agreed to sell, the policy is adopted of those cases
           which refuse except in unusual circumstances to recognize a material deletion of the
           seller’s obligation. Thus, a contract is normally a contract for a sale of something
           describable and described. A clause generally disclaiming ‘all warranties, express or
           implied’ cannot reduce the seller’s obligation with respect to such description and
           therefore cannot be given literal effect under Section 2-316.
                This is not intended to mean that the parties, if they consciously desire, cannot make
           their own bargain as they wish. But in determining what they have agreed upon good
           faith is a factor and consideration should be given to the fact that the probability is small
           that a real price is intended to be exchanged for a pseudo-obligation.” 810 ILCS Ann.
           5/2-313, Uniform Commercial Code Comment 4 (Smith-Hurd 2009).
¶ 45       Section 2-316 of the UCC restricts the exclusion or modification of warranties. 810 ILCS
       5/2-316 (West 2010). Under section 2-316(1) of the UCC, a warranty disclaimer inconsistent

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       with an express warranty is inoperative. 810 ILCS 5/2-316(1) (West 2010). Section 2-
       316(3)(a) permits disclaimers of implied warranties by expressions like “as is” or other
       language which “makes plain that there is no implied warranty.” (Emphasis added.) 810
       ILCS 5/2-316(3)(a) (West 2010). Written disclaimers to “exclude or modify the implied
       warranty of merchantability” must mention merchantability and “be conspicuous.” 810 ILCS
       5/2-316(2) (West 2010); see 810 ILCS 5/1-201(b)(10) (West 2010) (defining “conspicuous”).
       Comment 1 to section 2-316 explains:
           “This section is designed principally to deal with those frequent clauses in sales contracts
           which seek to exclude ‘all warranties, express or implied.’ It seeks to protect a buyer
           from unexpected and unbargained language of disclaimer by denying effect to such
           language when inconsistent with language of express warranty and permitting the
           exclusion of implied warranties only by conspicuous language or other circumstances
           which protect the buyer from surprise.” 810 ILCS Ann. 5/2-316, Uniform Commercial
           Code Comment 1 (Smith-Hurd 2009).

¶ 46                                 3. The Parties’ Arguments
¶ 47       Nissan asserts it is “well-settled Illinois law that when a vehicle is sold ‘as is,’ all
       applicable warranties are effectively disclaimed and the purchaser is precluded from
       maintaining a subsequent claim for breach of warranty” and plaintiff’s “argument that this
       [‘as is’] language was somehow limited to warranties offered only by New York Auto Sales
       is not well-founded.” In other words, Nissan’s position is a third party can disclaim a
       manufacturer’s written warranty through an “as is” clause in a sales contract.
¶ 48       Nissan cites six cases in support but has not provided a single case where a third party
       disclaimed a manufacturer’s written warranty.
¶ 49       In Basselen v. General Motors Corp., 341 Ill. App. 3d 278, 792 N.E.2d 498 (2003), the
       plaintiffs purchased a new Chevrolet van with a 3-year or 36,000-mile warranty provided by
       General Motors. Id. at 281, 792 N.E.2d at 501. After experiencing difficulty with the van,
       the plaintiffs sued the manufacturer, General Motors, and the dealer. A “ ‘new buyer’s order’
       form” stated “ ‘New Car Factory Limited Warranty–As Is.’ ” Id. at 289, 792 N.E.2d at 508.
       Before trial, the trial court granted summary judgment against the dealer on an express
       warranty claim and the case proceeded to trial where a jury returned a verdict against General
       Motors on the breach of express and implied warranty claims. Id. at 280, 792 N.E.2d at 501.
       The trial court granted a directed verdict in favor of the dealer on the implied-warranty-of-
       merchantability count. Id. The First District upheld the directed verdict because the “as is”
       disclaimer language in the order form complied with section 1-201 of the UCC (810 ILCS
       5/1-201(10) (West 1996)). Basselen, 341 Ill. App. 3d at 289, 792 N.E.2d at 508. The appeal
       in Basselen concerned a dealer’s implied warranty, not an express warranty, and not the
       manufacturer’s warranty. Further Basselen was overruled on other grounds in Kinkel v.
       Cingular Wireless, LLC, 223 Ill. 2d 1, 31, 857 N.E.2d 250, 268-69 (2006), and is of limited
       precedential value.
¶ 50       In Tague v. Autobarn Motors, Ltd., 394 Ill. App. 3d 268, 271, 914 N.E.2d 710, 712
       (2009), the plaintiff purchased a used 2001 Ford Mustang where the sales contract contained

                                                -10-
       a disclaimer of warranties and indicated the vehicle was sold “as is.” At the time of purchase,
       the Mustang was still covered by Ford’s limited warranty, which provided “bumper-to-
       bumper coverage” for 3 years or 36,000 miles, whichever occurred earlier. Id., 914 N.E.2d
       at 712-13. Ford moved to dismiss on the basis its limited warranty had expired by the time
       the Mustang started experiencing problems. Id. at 273, 914 N.E.2d at 714. The appellate
       court upheld the dismissal as Ford’s limited warranty expired approximately four months
       before the Mustang began having problems. Id. at 278, 914 N.E.2d at 717-18. The appellate
       court also held the dealer, Autobarn, properly disclaimed all implied warranties because the
       disclaimer contained conspicuous language. Id. at 279, 914 N.E.2d at 718. Again, Tague
       concerned the dealer’s disclaimer of its implied warranty and not a manufacturer’s warranty,
       which had expired by its own terms.
¶ 51       This is the same situation in Mitsch, where the plaintiffs purchased a used 2002 GMC
       Yukon from an authorized GMC dealership. Mitsch, 359 Ill. App. 3d at 101, 833 N.E.2d at
       937. The purchase contract contained a disclaimer stating the vehicle was sold “as is” and
       the plaintiffs purchased an extended warranty. Id. The vehicle had more than 36,000 miles
       when sold and General Motors asserted the original warranty had already expired. Id. at 102,
       833 N.E.2d at 938. The trial court granted the dealer’s motion for summary judgment and
       the plaintiffs appealed whether the purchase agreement disclaimed the dealer’s implied
       warranty of merchantability. Id. at 102-03, 833 N.E.2d at 938. The appellate court concluded
       the “as is” language in the sales contract “was sufficient to disclaim the implied warranty of
       merchantability.” Id. at 105, 833 N.E.2d at 940.
¶ 52       Disclaimer of a manufacturer’s warranty was not at issue in any of the other cases cited
       by defendant. See Lytle v. Roto Lincoln Mercury & Subaru, Inc., 167 Ill. App. 3d 508, 517,
       521 N.E.2d 201, 206 (1988) (rejecting the argument the dealer adopted the manufacturer’s
       written warranty and could not disclaim its implied warranty of merchantability); Priebe v.
       Autobarn, Ltd., 240 F.3d 584, 586-88 (7th Cir. 2001) (rejecting the argument the Act
       prevented the dealer from making a disclaimer of its implied warranty of merchantability
       because the plaintiff purchased a third-party service contract, to which the dealer was not a
       party); Pelc v. Simmons, 249 Ill. App. 3d 852, 856-57, 620 N.E.2d 12, 15 (1993) (holding the
       seller’s statement he had rebuilt the engine of a 1978 Pontiac Sunbird did not create an
       express warranty and there was no implied warranty based on a sign in the vehicle’s window
       stating it was “ ‘sold as is’ ”).
¶ 53       Like Nissan, plaintiff provided no case where a manufacturer successfully argued it, or
       a third party, disclaimed its written warranty. See Rothe v. Maloney Cadillac, Inc., 119 Ill.
       2d 288, 290-94, 518 N.E.2d 1028, 1029-30 (1988) (addressing manufacturer’s implied
       warranties and noting section 2308(a) of the Act “prohibits a ‘supplier’ (defined *** as
       including parties with whom a consumer does not necessarily deal directly) who makes an
       express warranty from disclaiming any implied warranty to a consumer”); Larry J. Soldinger
       Associates, Ltd. v. Aston Martin Lagonda of North America, Inc., No. 97 C 7792, 1999 WL
       756174, at *3-6 (N.D. Ill. Sept. 13, 1999) (denying the manufacturer’s motion for summary
       judgment with respect to its written warranty because an issue of material fact existed
       whether the manufacturer had remedied the defects within a reasonable period of time and
       number of attempts). Plaintiff points out the manufacturer in Basselen was held liable on its

                                                -11-
       written warranty despite the dealer disclaiming its implied warranties. Basselen is of limited
       value as it did not address the verdict against the manufacturer.

¶ 54                                    4. The Warranties Here
¶ 55       Nissan admitted it provided a written warranty for 3 years or 36,000 miles, whichever
       came first. The warranty states it covers “any repairs needed to correct defects in materials
       or workmanship.” Nissan has not asserted the written warranty has expired by its own terms,
       as in Tague or Mitsch, the warranty was voided pursuant to its terms, such as a salvaged or
       flood title, or does not cover the repairs made. The evidence in the light most favorable to
       plaintiff reflects Nissan is the warrantor, it supplied the written warranty for the Pathfinder,
       and the warranty was effective under its own terms.
¶ 56       There are several problems with Nissan’s position a third party can disclaim the written
       warranty through an “as is” clause contained in a sales contract. We must be careful to
       distinguish between the two potential warrantors–New York Auto and Nissan–and the two
       types of potential warranties–express and implied. We need not resolve whether an agency
       relationship existed between Nissan and New York Auto, and if New York Auto had
       authority to disclaim Nissan’s warranty. These are normally factual questions. Ioerger v.
       Halverson Construction Co., 232 Ill. 2d 196, 202, 902 N.E.2d 645, 648 (2008) (existence of
       agency relationship); Amigo’s Inn, Inc. v. License Appeal Comm’n, 354 Ill. App. 3d 959, 965,
       822 N.E.2d 107, 113 (2004) (scope of agent’s authority). It is undisputed New York Auto
       is the alleged disclaiming party and Nissan’s manufacturer’s warranty is the allegedly
       disclaimed warranty. Taken in the light most favorable to plaintiff, there can be little dispute
       Nissan’s warranty is a written warranty under the Act. See 15 U.S.C. § 2301(6)(A), (B)
       (2006). Nissan asserts an owner may terminate Nissan’s warranty obligations if the owner
       so chooses. However, according to the terms of the warranty, it is provided “to the original
       and subsequent owner(s)” and is “generally transferable” to “subsequent owners of the
       vehicle at any time ownership of the vehicle is transferred.” Federal regulation requires a
       written warranty to “clearly and conspicuously disclose in a single document in simple and
       readily understood language *** [t]he identity of the party or parties to whom the written
       warranty is extended, if the enforceability of the written warranty is limited to the original
       consumer purchaser or is otherwise limited to persons other than every consumer owner
       during the term of the warranty.” 16 C.F.R. § 701.3(a) (2012). Nissan’s warranty contains
       no provision restricting enforcement of the warranty to less than “every consumer owner
       during the term of the warranty” or stating an owner can disclaim the warranty for
       subsequent owners. We decline to read such provisions into Nissan’s warranty and read the
       warranty according to its terms as being extended to and enforceable by all subsequent
       owners. Regardless of whether Nissan’s repair warranty is an “express warranty” as defined
       by the UCC or a promise to repair (Mydlach, 226 Ill. 2d at 323, 875 N.E.2d at 1059), it is
       obvious Nissan would be unable to unilaterally renege on its promise to repair without
       subjecting itself to a breach of contract claim. See Hasek v. DaimlerChrysler Corp., 319 Ill.
       App. 3d 780, 788, 745 N.E.2d 627, 634 (2001) (express warranties are contractual in nature).
       The Act clearly provides Nissan cannot disclaim an implied warranty where there is a written
       warranty. 15 U.S.C. § 2308(c) (2006); see also Sorce, 309 Ill. App. 3d at 324-25, 722 N.E.2d

                                                -12-
       at 235 (summarizing the Act’s requirements on disclaimers). Further, the UCC provides a
       disclaimer inconsistent with an express warranty is ineffective and courts can deny the effect
       of an “as is” clause where it is inconsistent with a contract’s language. 810 ILCS 5/2-316
       (West 2010); Snelten v. Schmidt Implement Co., 269 Ill. App. 3d 988, 994, 647 N.E.2d 1071,
       1075 (1995) (“when a written contract contains a specific, written, affirmative representation,
       the inclusion of general ‘as is,’ ‘with all faults’ or like language does not, in and of itself,
       relieve the party making the statement of a duty arising from the statement”). Together, this
       means if Nissan was the disclaiming party, the “as is” clause would be ineffective because
       it is inconsistent with its written warranty and promise to repair.
¶ 57        Although Nissan asserts it is “well-settled Illinois law,” it has not provided a single case
       supporting its position a third party can disclaim a manufacturer’s written warranty through
       “as is” language contained in a sales contract. The provided cases address waiver of an
       implied warranty, not an express warranty or promise, and do not address a third-party
       disclaimer. Nissan is correct Illinois law supports waiver of an implied warranty through an
       “as is” clause. We find no support for Nissan’s position a third party’s “as is” clause voids
       a manufacturer’s written warranty. Nissan’s position would be an invitation for automobile
       manufacturers to engage in misleading warranty claims and do an end run around the Act.
       See Mydlach, 226 Ill. 2d at 325, 875 N.E.2d at 1060 (noting a purpose of the Act is to restrict
       misleading marketing). The manufacturer could simply escape any obligation to repair,
       despite its representations or promises, based on the automobile seller’s disclaimer contained
       in the sales contract. Moreover, to reach the conclusion a third party can disclaim a
       manufacturer’s warranty, we would have to interpret the Act and UCC inconsistent with their
       restrictions on warranty practices and disclaimers. See McFatridge v. Madigan, 2013 IL
       113676, ¶ 18, 989 N.E.2d 165 (“A court should not depart from the plain language of a
       statute by reading into it exceptions, limitations, or conditions that the legislature did not
       intend.”). Considering the consumer protections afforded by the Act and UCC in restricting
       deceptive warranty practices, a third-party disclaimer cannot possibly void a manufacturer’s
       written warranty when the manufacturer’s disclaimer would not be given effect. Nissan has
       not provided a single case where a manufacturer even asserted an “as is” clause in a sales
       contract vitiated its written warranty and our research has not revealed one. As plaintiff
       points out, one would suspect General Motors in Basselen would have made this argument
       and not been liable on its express-written warranty if Illinois law supported such a position.
       See also Villanueva v. Toyota Motor Sales, U.S.A., Inc., 373 Ill. App. 3d 800, 801, 869
       N.E.2d 866, 867 (2007) (appeal from dealer’s section 2-619 motion to dismiss where the
       sales contract for a new Toyota minivan contained “as is” language and Toyota did not assert
       this vitiated the manufacturer’s warranty). As Nissan’s motion to dismiss is without a basis
       in law, it must fail.
¶ 58        As an aside, we note Nissan’s argument a third party can disclaim a manufacturer’s
       warranty does not answer whether the third party did disclaim the warranty. At the time of
       purchase, New York Auto provided plaintiff with a one-month written warranty on the
       Pathfinder’s engine and transmission. The sales contract’s language “This vehicle SOLD AS
       IS with no warranty as to mechanical condition” is inconsistent with New York Auto’s
       warranty. The “as is” clause would be “inoperative” because it is inconsistent and negates

                                                 -13-
       the express warranty. See 810 ILCS 5/2-316(1) (West 2010). In sum, Nissan’s argument not
       only requires us to twist the Act and UCC to permit a third party to do what a manufacturer
       could not, it also requires a finding the disclaimer is ineffective against New York Auto but
       is nevertheless effective for Nissan.
¶ 59       The trial court only analyzed whether the “as is” clause was conspicuous and did not
       consider whether it was effective under the Act and UCC, it applied to express warranties
       or promises to repair, or it conflicted with other representations made by New York Auto.
       The plain language of section 2-316(2) states the conspicuousness requirement applies to
       disclaimers of implied warranties and says nothing of express warranties or promises. 810
       ILCS 5/2-316(2) (West 2010). It is unclear if the court failed to draw this distinction or
       assumed defendant had not made a repair warranty–which would require construing the
       pleadings in the light most favorable to Nissan. Moreover, the trial court found Nissan
       effectively disclaimed its warranty, whereas the undisputed facts reflect a third party
       attempted to disclaim the warranty. The trial court dismissed both of plaintiff’s counts. This
       was error and plaintiff’s two counts must be reinstated. See Sorce, 309 Ill. App. 3d at 326,
       722 N.E.2d at 236 (“A cause of action asserted for breach of an express warranty does not
       extinguish a concurrent cause of action for breach of implied warranties arising from the
       express warranty.”); Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828,
       836, 807 N.E.2d 1165, 1171 (2004).

¶ 60                                   III. CONCLUSION
¶ 61      We reverse the trial court’s judgment and remand the cause for further proceedings.

¶ 62      Reversed and remanded.




                                               -14-
Appendix A (Case No. 4-12-0943)
Appendix B (Case No. 4-12-0943)
                                                                                       Appendix C (Case No. 4-12-0943)



                  4           2007 NEW VEHICLE LIMITED WARRANTY
             WHO IS THE WARRANTOR                                                            warranty applies to a relocated vehicle which is returned to,         THE WARRANTY BEGINS
             Nissan1 warrants all parts of your 2007 Nissan vehicle supplied                 and is registered and normally operated in the United States,         The warranty period begins on the date the vehicle is delivered
             by Nissan, except for those listed elsewhere under the caption                  the U.S. territories or Canada, except for conditions due to the      to the first retail buyer or put into use, whichever is earlier.
             “WHAT IS NOT COVERED.”                                                          vehicle’s foreign operation, e.g., use of inappropriate fuels or
                                                                                             other fluids.                                                         FOR HOW LONG AND WHAT IS
             APPLICABILITY                                                                                                                                         COVERED
             ■ This warranty is provided to the original and subsequent
                                                                                           LIMITATION OF WARRANTIES AND OTHER WAR-                                 ■ BASIC COVERAGE
               owner(s) of a Nissan vehicle originally distributed by Nissan
               which is originally sold by a Nissan authorized Nissan                      RANTY TERMS AND STATE LAW RIGHTS                                          • The basic coverage period is 36 months or 36,000
               dealership in the United States, and which is registered                    EXTRA EXPENSES - LIMITATIONS OF DAMAGES                                     miles, whichever comes first.
               in the U.S. and normally operated in the United States                      This warranty does not cover incidental or consequential                  • This warranty covers any repairs needed to correct
               (including Alaska and Hawaii), the United States territories                damages such as loss of the use of the vehicle, incon-                      defects in materials or workmanship of all parts and
                                                                                           venience or commercial loss.                                                components of each new Nissan vehicle supplied by
               (specifically Guam, Saipan, American Samoa, Puerto Rico
               and the U.S. Virgin Islands), and Canada.                                   ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FIT-                            Nissan except for the exclusions or items listed under
                                                                                           NESS FOR A PARTICULAR PURPOSE SHALL BE LIMITED                              the caption “WHAT IS NOT COVERED” or, if the part
             ■ This warranty is generally transferable from the original                                                                                               is covered by one of the separate coverages described
                                                                                           TO THE DURATION OF THIS WRITTEN WARRANTY.
               ‘owner other than a Nissan dealer’ (OWNER) to                                                                                                           in the following sections of this warranty, that specific
                                                                                           Some states do not allow the exclusion or limitation of incidental
               subsequent owners of the vehicle at any time ownership of                   or consequential damages or limitations on how long an implied              coverage applies instead of the basic coverage.
               the vehicle is transferred, without any action on your part;                warranty lasts, so the above limitations or exclusions may not            • Bedliners will be repaired to commercially acceptable
               except that this warranty is not transferable but is instead                apply to you. This warranty gives you specific legal rights, and            standards subject to the conditions and limitations listed
               void if during the first six months after delivery to the original          you may also have other rights which vary from state to state.              in "WHAT IS NOT COVERED."
               OWNER: (1) ownership of the vehicle is transferred from
               the original OWNER, and (2) the vehicle is registered                       Nissan does not authorize any person to create for it any other         ■ POWERTRAIN COVERAGE
               outside of the United States.                                               warranty, obligation or liability in connection with this vehicle.        • The Powertrain coverage period is 60 months or 60,000
                                                                                                                                                                       miles, whichever comes first.
             ■ Your Nissan vehicle is manufactured to meet U.S.
                                                                                                                                                                     • This warranty covers any repairs needed to correct
               regulations and environmental requirements. With the                        Nissan makes available to you, and you are specifically required            defects in materials or workmanship.
               exception of privately owned vehicles belonging to                          by Federal Law to use BBB AUTO LINE [(800) 955-5100] before               • Powertrain coverage applies to components listed below,
               members of the U.S. military or employees and officers                      exercising rights or seeking remedies under the Federal Magnuson-           supplied by Nissan except for those items listed under
               of the United States Government stationed abroad, this                      Moss Warranty Act, 15 U.S.C. §2301, et. seq. You are not required           the caption “WHAT IS NOT COVERED”.
               warranty does not apply if an otherwise covered vehicle                     to first use BBB AUTO LINE if you seek remedies not created
               is operated in, or relocated to, a country other than those                 by Title I of that Federal law, but are required to first use BBB            ENGINE
               listed above under this caption, except that it continues                   AUTO LINE if you seek remedies created by state law, including               Cylinder heads and block and all internal parts, rocker
               to apply if the vehicle is operated in full compliance with                 your state's lemon law, if applicable state law provides for using           covers and oil pan, valve train and front cover, timing chain
               its proper use as described in the applicable OWNER’S                       a 703 compliant or similar process before filing suit. Please refer          and tensioner, oil pump, water pump and fuel pump, fuel
               MANUAL2 while touring outside of the United States, the                     to pp. 2-3 of this booklet and the "Supplement to 2007 Nissan                injectors, intake and exhaust manifolds and supercharger,
               U.S. territories or Canada for a period not exceeding sixty (60)            Warranty Information Booklet & 2007 Nissan Owner's Manual"                   flywheel, seals, and gaskets.
                 consecutive days or sixty (60) days in any one 12 month period.           for additional information.
                 Subject to the transferability restriction described above, this                                                                                       TRANSMISSION AND TRANSAXLE
                                                                                                                                                                        Case and all internal parts, torque converter and converter
             1
               Nissan indicates Nissan North America, Inc., P.O. Box 685003, Franklin, TN 37068-5003 which distributes Nissan vehicles in the United States.            housing, automatic transmission control module, transfer
             2
               See the Owner’s Manual for information relevant to proper operation of the vehicle, including the recommended fuels and fluids.

                                                                                                                                                                                                                                                 	  
    	  
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                                                                                                                           2007 NEW VEHICLE LIMITED WARRANTY                                                                5
                 case and all internal parts, seals and gaskets, clutch cover          ■ ADJUSTMENT COVERAGE                                                         fuel and fluids), or the vehicle’s lack of compliance with local
d                and housing, and electronic transmission controls.                      Service adjustments not usually associated with the                         regulations or environmental requirements of any country
                                                                                         replacement of parts, such as wheel alignment, are                          (other than the U.S., the listed U.S. territories or Canada)
                 DRIVETRAIN
                                                                                         covered only during the first 12 months or 12,000                           are not covered by this warranty.
                 Drive shafts, final drive housing and all internal parts,               miles, whichever comes first.
                 propeller shafts, universal joints, bearings, seals and
                 gaskets.                                                              ■ REFRIGERANT RECHARGE ONLY COVERAGE
                                                                                         Refrigerant recharge not associated with the repair or                  MAINTENANCE AND RECORDS
               RESTRAINT SYSTEM                                                          replacement of a warranted part is covered only during                  As a condition of this warranty, you are responsible for properly
               Air bags and related electronic control systems.                          the first 12 months, regardless of the mileage.                         using, maintaining and caring for your vehicle as outlined
             ■ CORROSION COVERAGE (PERFORATION FROM                                                                                                              in your OWNER’S MANUAL and your NISSAN SERVICE
               CORROSION)                                                              NO CHARGE                                                                 & MAINTENANCE GUIDE, and maintaining copies of all
                                                                                       Warranty repairs will be made at no charge for parts and/or               maintenance records & receipts for review by Nissan. Failure
               Any body sheet metal panel supplied by Nissan found to
                                                                                       labor (except for batteries and tires, in which case you may pay          to do so is likely to result in the denial of warranty coverage.
               have developed perforation (rust-through) due to corro-                 certain charges as noted above or as described in the applicable
               sion in normal use is covered for 60 months, regardless                                                                                           Evidence of the performance of the required maintenance
                                                                                       tire warranty found later in this booklet). Any needed parts              should be kept and presented as proof of such maintenance
               of mileage, except for those items listed under “WHAT IS                replacement will be made using genuine Nissan or                          in connection with related warranty repairs. To assist you in
               NOT COVERED”. No additional rust proofing applications                  Nissan approved new or remanufactured parts.                              maintaining appropriate records, the maintenance log located
               are required. Perforation is a condition in which any body                                                                                        in your NISSAN SERVICE & MAINTENANCE GUIDE can be
               sheet metal panel has corroded from one surface through                                                                                           used along with supporting repair invoices, receipts and other
               to another.
                                                                                       OBTAINING WARRANTY SERVICE                                                such records.
                                                                                       ■ You must take the vehicle to an authorized Nissan dealer
             ■ ORIGINAL EQUIPMENT BATTERY COVERAGE                                       in the United States or Canada during regular business
               The coverage period is 36 months or 36,000 miles,                                                                                                 (Continued on page 6)
                                                                                         hours at your expense in order to obtain warranty service.
               whichever comes first. A defective original equipment battery             The names and addresses of authorized Nissan dealers
               which is unserviceable within the first 12 months and 36,000              are listed in telephone directories.                                              (See following page for
               miles will be replaced free of charge. After 12 months but
               within 24 months and 36,000 miles, you will pay 50% of                  ■ If you require warranty service outside of the United States                    "WHAT IS NOT COVERED." )
               the replacement battery’s suggested retail price plus any                 (see terms under caption “APPLICABILITY”), contact
               applicable taxes. After 24 months but within 36 months                    an authorized Nissan dealer in that country. Note that
               and 36,000 miles, you will pay 75% of the replacement                     complaints related to failure to comply with proper use
               battery’s suggested retail price plus any applicable taxes.               of the vehicle as described in the applicable OWNER’S
                                                                                         MANUAL (including the lack of availability or use of proper
               Nissan will pay the rest, including all labor to remove and
               replace the defective battery.
             ■ TOWING COVERAGE
               If your vehicle is inoperative due to the failure of a
               warranted part, towing service to the nearest authorized
               Nissan dealer is covered for 36 months or 36,000 miles,
               whichever comes first.




                                                                                                                                                                                                                                          	  
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       6          2007 NEW VEHICLE LIMITED WARRANTY
   WHAT IS NOT COVERED                                                  ■ The items listed below are not covered under corrosion           (See following pages for separate warranties which may apply
                                                                            coverage (perforation from corrosion).                         to your Nissan, such as those covering vehicle emissions,                E
   DAMAGE, FAILURES OR CORROSION DUE TO
                                                                            • Exhaust system components.                                   seat belts, and tires.)
   ACCIDENTS, MISUSE OR ALTERATIONS
   This warranty does not cover damage, failures or corrosion               • Corrosion of outer trim parts, such as moldings.
   resulting from:                                                               However, corrosion of outer trim parts is warranted for                                                                            a
                                                                                 12 months or 12,500 miles, whichever comes first.
   ■ Accident, theft, fire, driving through water (including engine         • Corrosion other than perforation, such as cosmetic                                                                                    T
     water ingestion) or misuse, which includes racing of any                    or surface corrosion due to defects in materials                                                                                   d
     sort whatsoever (Proper use is outlined in your OWNER’S                     or workmanship. This is covered under the Basic                                                                                    c
     MANUAL).                                                                    Coverage of the New Vehicle Limited Warranty.
   ■ Alteration, tampering or improper repair.                              • Special bodies or equipment not manufactured or
   ■ Installation of non-Nissan approved accessories or                          supplied by Nissan.
     components.                                                        DAMAGE, FAILURES OR CORROSION DUE TO LACK
   ■ Improper installation of any Nissan approved or aftermarket
                                                                                                                                                                                                                    C
                                                                        OF OR IMPROPER MAINTENANCE
     accessory or component.                                            This warranty does not cover damage, failures or corrosion
   ■ Glass breakage, unless resulting from defects in material          resulting from:
     or workmanship.
   ■ Normal wear and tear, including dings, dents, chips or             ■ Lack of performance of proper maintenance services as                                                                                     W
     scratches.                                                           outlined in your NISSAN SERVICE & MAINTENANCE
                                                                          GUIDE.                                                                                                                                    H
   ALTERED OR UNCERTAIN ODOMETER MILEAGE                                ■ Use of improper or dirty fuel, fluids or lubricants.
   This warranty does not cover repair of any vehicle or any part
                                                                                                                                                                                                                    T
                                                                        ■ Use of parts not equivalent in quality or design to parts                                                                                 o
   of a vehicle of which the odometer mileage has been altered,           supplied by Nissan.
   or the odometer repaired or replaced and the actual vehicle                                                                                                                                                      d
   mileage cannot be correctly and readily determined.                  MAINTENANCE SERVICE EXPENSE
                                                                        This warranty does not cover normal maintenance services                                                                                    d
   SALVAGE TITLE                                                        as specified in your NISSAN SERVICE & MAINTENANCE
   This limited warranty does not apply to any vehicle, and is                                                                                                                                                      a
                                                                        GUIDE such as engine tune-up; cleaning and polishing; wheel
   rendered void if the vehicle is (or ever has been) issued a          alignment; headlight aiming; replacement of filters, replacement
   “salvage” or similar title under any state’s law; or has ever been   of windshield wiper inserts, replacement of key fob batteries,                                                                              w
   determined to be a “total loss” or equivalent by any insurance       lubricants, coolant; worn brake shoes, pads, drums and rotors
   company, such as by payment of a cash payment of claim in lieu       and worn clutch discs.                                                                                                                      E
   of repairs because of a determination that the cost of repairs
                                                                        SEAT BELTS, TIRES, DROP-IN BEDLINERS AND
   exceeded the actual cash value of the vehicle.                       EMISSION CONTROL SYSTEM                                                                                                                     T
                                                                        Seat belts, tires, drop-in bedliners and the emission control
   DAMAGE, FAILURES OR CORROSION FROM                                   system are not covered by this warranty, but are covered by
   ENVIRONMENTAL CONDITIONS                                             separate warranties.
   This warranty does not cover damage, failures or corrosion
   resulting from:                                                      NISSAN SPRAY-IN BEDLINERS
   ■ Stone chipping, chemical fallout (acid rain), tree sap, salt,      Nissan Spray-in Bedliners will be repaired to commercially
       hail, wind-storm, lightning, flood or other environmental        acceptable standards which may include minor appearance
       conditions.                                                      differences from the original bedliner.



                                                                                                                                                                                                             	  
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