{ "id": 5434597, "name": "SHANTE RAZOR, Plaintiff-Appellee, v. HYUNDAI MOTOR AMERICA, Defendant-Appellant", "name_abbreviation": "Razor v. Hyundai Motor America", "decision_date": "2004-06-16", "docket_number": "No. 1-03-1359", "first_page": "651", "last_page": "667", "citations": [ { "type": "official", "cite": "349 Ill. App. 3d 651" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "794 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "852" } ], "opinion_index": 0 }, { "cite": "341 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5573137 ], "year": 2003, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0674-01" ] }, { "cite": "409 N.E.2d 299", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 827", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179321 ], "year": 1980, "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0827-01" ] }, { "cite": "618 N.E.2d 909", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "915-16" } ], "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 370", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410660 ], "year": 1993, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0370-01" ] }, { "cite": "357 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429275 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0570-01" ] }, { "cite": "292 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "172-73" } ], "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 348", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2845379 ], "year": 1972, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0348-01" ] }, { "cite": "759 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "74" }, { "page": "75" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570734 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "1149" }, { "page": "1151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1139-01" ] }, { "cite": "674 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "64" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295574 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "255" }, { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0250-01" ] }, { "cite": "614 N.E.2d 1342", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1347" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387646 ], "year": 1993, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0057-01" ] }, { "cite": "261 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "failure of exclusive remedy provided in warranty to repair and replace defective parts \"readily found in the allegation that defendants were wilfully dilatory or careless and negligent in complying with their obligations under the warranty\"" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 2d 388", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1577236 ], "year": 1970, "pin_cites": [ { "page": "403", "parenthetical": "failure of exclusive remedy provided in warranty to repair and replace defective parts \"readily found in the allegation that defendants were wilfully dilatory or careless and negligent in complying with their obligations under the warranty\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/125/0388-01" ] }, { "cite": "781 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "follows Lara; where a limited warranty is at issue, court must rely on UCC cases \"holding the seller must correct the defects 'within a reasonable time' \"" } ], "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637061 ], "year": 2002, "pin_cites": [ { "parenthetical": "follows Lara; where a limited warranty is at issue, court must rely on UCC cases \"holding the seller must correct the defects 'within a reasonable time' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0625-01" ] }, { "cite": "733 N.E.2d 718", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980727 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "257-58" }, { "page": "257-58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0248-01" ] }, { "cite": "722 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349537 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0313-01" ] }, { "cite": "794 N.E.2d 1027", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474359 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0480-01" ] }, { "cite": "349 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5436878 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "693-94" }, { "page": "693-94" }, { "page": "694" }, { "page": "694" }, { "page": "695" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0688-01" ] }, { "cite": "15 U.S.C. \u00a7 2304", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7 2303", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "518 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "1029-30" }, { "page": "1029" }, { "page": "1030" }, { "page": "1030-31" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193494 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "292" }, { "page": "292" }, { "page": "294-95" }, { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0288-01" ] }, { "cite": "503 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "767" }, { "page": "769" }, { "page": "769" } ], "opinion_index": 0 }, { "cite": "115 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180014 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "311" }, { "page": "315-16" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0294-01" ] }, { "cite": "347 Ill. 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App. 3d", "case_ids": [ 2970129 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "139-40" }, { "page": "139-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0136-01" ] }, { "cite": "569 N.E.2d 570", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534577 ], "year": 1991, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0602-01" ] }, { "cite": "770 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "727" }, { "page": "728-29", "parenthetical": "\"A remedy limitation fails of its essential purpose when a seller unreasonably delays the replacement of the product, refuses to replace it at all, or is unsuccessful in correcting the defects 'within a reasonable time' \"" }, { "page": "729" }, { "page": "728-29" } ], "opinion_index": 0 }, { "cite": "331 Ill. App. 3d 53", "category": "reporters:state", "reporter": "Ill. 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App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132331 ], "weight": 10, "year": 2001, "pin_cites": [ { "page": "702" }, { "page": "702" }, { "page": "702" }, { "page": "702" }, { "page": "702-03" }, { "page": "703" }, { "page": "703" }, { "page": "703" }, { "page": "704" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0696-01" ] }, { "cite": "15 U.S.C. \u00a7 2301", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1994, "pin_cites": [ { "page": "et seq." }, { "page": "(7)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1304, "char_count": 37976, "ocr_confidence": 0.703, "pagerank": { "raw": 8.475723631939708e-08, "percentile": 0.4855682705825706 }, "sha256": "8a7ea499d6670e41394e5a489230bbc08bb05320fe7de880f4cd1b5f61b705ab", "simhash": "1:33b15191a741b465", "word_count": 6254 }, "last_updated": "2023-07-14T17:18:36.100393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HOFFMAN, EJ., and HALL, J., concur." ], "parties": [ "SHANTE RAZOR, Plaintiff-Appellee, v. HYUNDAI MOTOR AMERICA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court.\nPlaintiff Shante Razor brought an action pursuant to the Magnuson-Moss Warranty \u2014 Federal Trade Commission Improvement Act (15 U.S.C. \u00a7 2301 et seq. (1994)) (Magnuson-Moss Act) and the Illinois New Vehicle Buyer Protection Act (815 ILCS 380/1 et seq. (West 2002)) seeking damages from defendant Hyundai Motor America for defendant\u2019s breach of its written warranty and implied warranty of merchantability on the new car it sold to plaintiff. The trial court entered judgment on a jury verdict in favor of plaintiff, awarding her actual and consequential damages.\nDefendant argues on appeal that the court erred in failing to grant defendant\u2019s motion for judgment notwithstanding the verdict (judgment n.o.v.), failing to reverse the jury\u2019s award of consequential damages, and awarding plaintiff attorney fees and costs. Defendant asserts that (1) plaintiff failed to prove damages, an essential element of her prima facie case; (2) plaintiff did not have a claim for breach of implied warranty under the Magnuson-Moss Act because there was no privity between plaintiff and defendant; (3) plaintiff had no claim for breach of limited warranty or implied warranty of merchantability because she failed to prove that an alarm/remote starter system not covered under defendant\u2019s limited warranty was not the cause of the car\u2019s problems; and (4) consequential damages should not have been awarded because defendant\u2019s limited warranty disclaimed liability for incidental and consequential damages. Defendant also asserts that, in the event this court reverses the trial court\u2019s judgment, the judgment awarding fees and costs must be reversed. We affirm.\nBackground\nOn August 4, 2001, plaintiff purchased and took delivery of a new 2001 Hyundai Sonata GLS. She purchased the car from Gartner Buick, Inc. (Gartner), in Aurora, Illinois. It was manufactured and distributed by defendant. Defendant\u2019s new vehicle limited warranty covered the car for 60 months or 60,000 miles, whichever came sooner. The warranty provided the following coverage for the duration of the warranty:\n\u201cRepair or replacement of any component originally manufactured or installed by Hyundai Motor Company or Hyundai Motor America (HMA) that is found to be defective in material or workmanship under normal use and maintenance, except any item specifically referred to in the section \u2018What is Not Covered.\u2019 \u201d\nThe warranty stated that, \u201c[i]n certain unique circumstances, Hyundai may decide, as a matter of goodwill, to pay for service or an item not normally covered by warranty.\u201d The owner\u2019s manual for the car warned that the car \u201cshould not be modified in any way\u201d because \u201c[s]uch modifications may *** violate conditions of the limited warranties covering the vehicle.\u201d\nThe \u201cWhat is Not Covered\u201d section of the warranty excluded coverage for damage or failure resulting from, among other things:\n\u201c\u2014 Negligence of proper maintenance as required in the Owner\u2019s Manual.\n\u2014 Misuse, abuse, accident, theft, water/flooding or fire.\n\u2014 Use of improper or insufficient fuel, fluids or lubricants.\n\u2014 Use of parts other than Hyundai genuine parts, or parts of non-equivalent quality and design.\n\u2014 Any device or accessories not supplied by Hyundai.\n\u2014 Modifications, alterations, tampering or improper repair.\n\u2014 Parts or accessories used in applications for which they were not designed or not approved by HMA.\u201d\nThe \u201cWhat is not Covered\u201d section also stated \u201cincidental or consequential damages, including without limitation, loss of time, inconvenience, loss of use of the vehicle or commercial loss.\u201d\nApproximately one month after purchasing the car, plaintiff experienced problems starting it. She took it to Gartner for repair five times for the same problem. \u25a0\nOn January 7, 2002, plaintiff filed a four-count complaint against defendant alleging that, \u201cas a result of ineffective repair attempts by [defendant], through its authorized dealership network, the Sonata cannot be utilized for personal, family and household use as intended by Plaintiff at the time of acquisition.\u201d She stated that the car had been taken for repair of the same defect at least five times but that the defect remained uncorrected. Plaintiff asserted claims for (I) breach of written warranty under the Magnuson-Moss Act; (H) breach of implied warranty under the Magnuson-Moss Act; (III) revocation of acceptance under the Magnuson-Moss Act; and (IV) violation of the Illinois New Vehicle Buyer Protection Act. Following an arbitration finding and award in favor of plaintiff, defendant rejected the award and the case proceeded to trial.\nPlaintiff testified at trial that the Sonata was her first new car and that she bought it because she had heard good things about the car, she needed dependable transportation to get to and from work and \u201cevery place else\u201d and the price was reasonable. \"When plaintiff bought the car, the salesman showed her a binder of options and features that could be installed in the car. Plaintiff elected to have a Professional Sound Installers, Inc. (ProSound), alarm/remote starter system installed in the car. The price of the system was included in the purchase price of the car.\nPlaintiff took her new car home on August 4, 2001, but returned it to Gartner on August 30, 2001, to have the remote starter system installed. The odometer on the car read 1,944 miles. Gartner subcontracted the installation to ProSound and plaintiff got the car back the same day. Plaintiff did not know until she saw the work order for the installation that the system was made and installed by ProSound rather than Hyundai.\nOn September 26, 2001, when plaintiff attempted to start the car with her key, the car did not crank. She checked multiple things to make sure that she was not the cause of the failure to start, such as whether the gear shift was engaged, but could find no reason for the problem. She called roadside assistance and had the car towed to Gartner. The odometer on the car read 3,518 miles. Gartner\u2019s work order shows that when Gartner service technicians checked the car it started every time and they found no problems with the battery, cables and connections. Plaintiff received the car back that afternoon but missed a day of work as a result of having to take the car for repair.\nOn October 6, 2001, plaintiff brought the car into Gartner again, complaining that the car would not start when cold. The odometer on the car read 3,931 miles. Gartner checked the car and it started. Technicians found the starter was intermittently open and replaced it. They also performed an oil change free of charge. Gartner provided plaintiff with a loaner car during the two days her car was being serviced.\nOn October 16, 2001, plaintiff had the car towed to Gartner again, complaining that the car would \u201cnot crank sometimes.\u201d The repair order shows that technicians replaced a shorted \u201cECU power relay\u201d but does not state that it was the cause of the problem. Gartner had the car for three days.\nOn October 25, 2001, plaintiff again brought the car in complaining that it would not start. The repair order states that technicians let the car \u201csit overnight several times\u201d and that it started in the morning. Gartner had ProSound remove the alarm/remote starter system and then again let the car sit overnight several times. The car started each time. ProSound then installed an updated remote system. The car continued to start when tested. Gartner had the car until November 12, 2001, and provided plaintiff with a rental car during the repair period.\nOn November 21, 2001, plaintiff again was unable to start the car. She testified that Gartner sent a technician to her home and that he was also unable to start the car. The technician had the car towed to Gartner and gave plaintiff his loaner car to use. At Gartner, technicians were unable to verify the no-start condition because the car started each time they tested it. They checked the car\u2019s wiring, connectors and ignition switch and replaced the starter relay and trans range switch. The car was returned to plaintiff on December 7, 2001.\nSince December 7, 2001, plaintiff experienced no further problems with the car and, at the time of trial, continued to own and operate the car. She testified that her confidence in the car had been significantly restored, she used it to make a 60-mile round trip to work five days a week and a 44-mile round trip to church on weekends and had driven it over 20,000 miles.\nPlaintiff stated that she had never been in an accident with the car; it had never been vandalized, raced or flooded; she performed the required maintenance; and no one other than Gartner and its subcontractor, ProSound, had ever performed repairs on the car. Plaintiff testified that, having previously owned a used car, the Sonata did not provide her with the type of transportation she expected from \u201ca brand new car.\u201d She expected it to be \u201cperfect, flawless or minimal problems, certainly not the ones that I encountered here.\u201d Plaintiff would not purchase the car \u201ctoday\u201d because it had proven unreliable. She would not pay the price she paid because the problems she had with the new Sonata were akin to those she had with her previous car, which had been used and from which she had expected some problems. Plaintiff testified that \u201cI would not pay that for a new car with used problems as it were.\u201d Plaintiff had not been charged for any of the repair work on the car or the cost of the loaner cars.\nWhen plaintiff got the car back in November 2001 after having been without it for two weeks, she thought it was fixed. When she turned the key in the ignition on November 21 and nothing happened again, she \u201cjust broke down\u201d and a Gartner service manager\u2019s statement to her that it must be something plaintiff was doing to cause the no-start problem \u201cjust aggravated the whole situation.\u201d Plaintiff stated that besides the aggravation, she was inconvenienced as a result of the car\u2019s problems because she missed work, was late for work, had to depend on other people when she did not have a loaner car, and had to wait for tows.\nPlaintiff was the sole witness in her case. The court denied defendant\u2019s motion for a directed verdict and defendant called its only witness, Randall Wood, part-owner and treasurer of ProSound.\nWood testified that he had previously installed starter systems but did not personally work on plaintiffs car. He knew ProSound installed an alarm/remote starter system in the car and that plaintiff subsequently had problems starting the car. Wood stated that the original remote system in plaintiffs car included an anti-grind relay which prevented the car from starting if the ignition key was turned when the car had been locked with the remote control. When ProSound reinstalled the remote system in plaintiffs car, Wood instructed his installer to eliminate the anti-grind relay in order to eliminate the possibility that the car\u2019s failure to start was due to ProSound\u2019s installation. On reinstallation, Wood also had the tachometer wire, which monitors the car\u2019s engine and signals the remote to release the starter when the engine starts running, moved to a different location in the car in case it was unreliable and the cause of the failure to start. Wood also testified that the remote system might have a passive arming feature whereby, under certain conditions, the system would automatically rearm itself after 45 seconds and thereby prevent the car from starting.\nAt the close of evidence, the court denied defendant\u2019s motion for a directed verdict. The jury found in favor of plaintiff on the breach of written warranty and breach of implied warranty of merchantability counts, and awarded plaintiff $5,000 as breach of warranty damages, $3,000 for aggravation and inconvenience and $500 for loss of use. The jury found in favor of defendant on plaintiffs claim for breach of the Illinois New Vehicle Buyer Protection Act. Plaintiff abandoned her revocation of acceptance claim. The jury answered \u201cyes\u201d to a special interrogatory asking \u201cDid plaintiff prove the aftermarket remote starter-alarm system was not the cause of the no-start condition?\u201d\nThe court entered judgment for plaintiff on the jury verdict and denied defendant\u2019s postrial motion for judgment n.o.v. or, in the alternative, to vacate the consequential damage award. The court granted plaintiffs petition for fees and costs, awarding her $12,277 in addition to the $8,500 damage award. Defendant timely appeals.\nAnalysis\nStandard of Review\nA court may enter a judgment n.o.v. only when, viewing the evidence in a light most favorable to the nonmoving party, it so overwhelmingly favors the movant that a contrary verdict could not stand. Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 702, 749 N.E.2d 16, 22 (2001), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). A defendant\u2019s motion for judgment n.o.v. presents \u201c \u2018a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any necessary element of the plaintiff[\u2019s] case.\u2019 \u201d Alvarez, 321 Ill. App. 3d at 702, 749 N.E.2d at 22, quoting Merlo v. Public Service Co., 381 Ill. 300, 311, 45 N.E.2d 665, 672 (1942). We review de novo the trial court\u2019s decision denying defendant\u2019s motion for judgment n.o.v. Alvarez, 321 Ill. App. 3d at 702, 749 N.E.2d at 2, citing McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999).\nFailure to Prove Damages\nDefendant first argues that the judgment must be reversed because plaintiff failed to prove damages, an essential element of her prima facie case for breach of warranty. Plaintiff filed her action for breach of warranties pursuant to the Magnuson-Moss Act, which provides that \u201ca 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.\u201d 15 U.S.C. \u00a7 2310(d)(1) (1994). By implication, because the Magnuson-Moss Act does not address damages for breach of limited and implied warranties, the Uniform Commercial Code (UCC) (810 ILCS 5/1 et seq. (West 2002)) is used for such determinations. Lara v. Hyundai Motor America, 331 Ill. App. 3d 53, 61, 770 N.E.2d 721, 727 (2002).\nSection 2 \u2014 714 of the UCC provides that \u201c[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.\u201d 810 ILCS 5/2 \u2014 714(2) (West 2000). The UCC also provides for incidental and consequential damages in proper cases. 810 ILCS 5/2 \u2014 714(3) (West 2000). The special circumstances exception to section 2 \u2014 714(2) must be read in conjunction with section 1 \u2014 106 of the UCC (810 ILCS 5/1 \u2014 106(1) (West 2000)), which provides that remedies found in the UCC \u201cshall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.\u201d Dynamic Recycling Services, Inc. v. Shred Pax Corp., 210 Ill. App. 3d 602, 615, 569 N.E.2d 570, 578 (1991).\nPlaintiff presented evidence of the purchase price of the car, the car\u2019s chronic failure to start, the number of times the car was taken for repair and the amount of time she was without the car. She testified that the value of the car she received (a vehicle that intermittently failed to start) was less than the value of the car she thought she was buying (a new car with no such problems, i.e., a car that was capable of starting and being driven on demand). She testified that, if she had known at the time of purchase what she knew at trial, she would not have bought the car and would certainly not have paid the price she paid for a \u201cnew car with used problems.\u201d She testified that she missed work and that she and her family suffered inconvenience and aggravation as a result of the car\u2019s failure to start. The jury found for plaintiff and awarded her damages for breach of the limited and implied warranties, loss of use and for aggravation and inconvenience damages.\nMathematical precision is not required in proof of loss, especially in the determination of consequential damages. McGrady v. Chrysler Motors Corp., 46 Ill. App. 3d 136, 139-40, 360 N.E.2d 818, 821 (1977). Rather, the amount of damages is determined by the trier of fact in the exercise of sound discretion and in any manner reasonable under the circumstances, as long as the award is not punitive. McGrady, 46 Ill. App. 3d at 139-40, 360 N.E.2d at 821. \u201cWhere the right to recovery existst,] the defendant cannot escape liability because the damages are difficult to prove.\u201d Burrus v. Itek Corp., 46 Ill. App. 3d 350, 357, 360 N.E.2d 1168, 1172 (1977). Here, the court properly instructed the jury that plaintiff had to prove that she sustained damages as a proximate cause of defendant\u2019s breach and that the jury need not be mathematically precise in its damages determination and could use a \u201creasonable basis for damages.\u201d Based on its own experience and plaintiffs testimony, the jury could reasonably determine the difference between the value of the car as promised (a problem-free, reliable car capable of being driven at will) and the value of the car as plaintiff actually received it (an unreliable car, prone to not starting and, on such occasions, incapable of being driven), as well as incidental and consequential damages. We do not find \u201ca total failure or lack of evidence to prove\u201d the damages element necessary to the plaintiffs case such that judgment n.o.v. was warranted.\nLack of Privity\nDefendant argues that plaintiff cannot state a claim for breach of implied warranty under the Magnuson-Moss Act because there is no privity between plaintiff and defendant. We recently considered and rejected this argument in Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828 (2004), and can summarily dispose of this issue.\nThe Magnuson-Moss Act provides that actions for breach of an implied warranty of merchantability may arise only under state law. 15 U.S.C. \u00a7 2301(7) (1994); Mekertichian, 347 Ill. App. 3d at 831. Illinois state law regarding actions for breach of an implied warranty of merchantability is stated in section 2 \u2014 314 of the UCC (810 ILCS 5/2 \u2014 314 (West 2002)). A plaintiff must be in vertical privity of contract with the seller in order to file a claim for economic damages for breach of implied warranty under the UCC. Mekertichian, 347 Ill. App. 3d at 832, citing Szajna v. General Motors Corp., 115 Ill. 2d 294, 311, 503 N.E.2d 760, 767 (1986), and Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 292, 518 N.E.2d 1028, 1029-30 (1988). Pursuant to the UCC, a buyer of goods seeking purely economic damages for a breach of implied warranty has \u201c \u2018a potential cause of action only against his immediate seller. 5 5 5 Mekertichian, 347 Ill. App. 3d at 832, quoting Rothe, 119 Ill. 2d at 292, 518 N.E.2d at 1029. Therefore, pursuant to the UCC, plaintiff would only have a cause of action against Gartner and not against defendant.\nHowever, in actions where (1) a consumer filed against a manufacturer pursuant to the Magnuson-Moss Act and (2) the manufacturer had expressly warranted a product to the consumer, the privity requirement has been relaxed. Mekertichian, 347 Ill. App. 3d at 832, citing Szajna, 115 Ill. 2d at 315-16, 503 N.E.2d at 769, and Rothe, 119 Ill. 2d at 294-95, 518 N.E.2d at 1030. In such cases, \u201cvertical privity will be deemed to exist with respect to that consumer, enabling him to file an action for breach of implied warranty [against the manufacturer] as well.55 Mekertichian, 347 Ill. App. 3d at 832 (manufacturer held in vertical privity with consumer where manufacturer provided limited written warranty with new automobile; pursuant to doctrine of stare decisis, Illinois Supreme Court decisions regarding state privity requirements under the Magnuson-Moss Act are binding on all Illinois courts where United States Supreme Court has not addressed the issue), following Szajna, 115 Ill. 2d at 315, 503 N.E.2d at 769, and Rothe, 119 Ill. 2d at 294-95, 518 N.E.2d at 1030-31. Accordingly, because defendant provided a written limited warranty with the Sonata, it is deemed to be in vertical privity with plaintiff such that plaintiff has a cause of action for breach of implied warranty under the Magnuson-Moss Act.\nBreach of Limited Warranty\nDefendant argues that plaintiff failed to prove that defendant breached its limited warranty to repair and replace defective parts. Although the Magnuson-Moss Act requires a warrantor to specify whether a written warranty is a full or limited warranty (15 U.S.C. \u00a7 2303(a) (1994)), the Act only sets out minimum standards for full warranties (15 U.S.C. \u00a7 2304 (1994)). Pearson v. Daimler-Chrysler Corp., 349 Ill. App. 3d 688, 693-94 (2004), citing Bartow v. Ford Motor Co., 342 Ill. App. 3d 480, 794 N.E.2d 1027 (2003), Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 722 N.E.2d 227 (1999), and Lara, 331 Ill. App. 3d at 62. Limited warranties are, therefore, not governed by the Magnuson-Moss Act but by the UCC. Pearson, 349 Ill. App. 3d at 693-94.\nPursuant to section 2 \u2014 719(2) of the UCC, \u201c \u2018[w]here circumstances cause an exclusive or limited remedy [such as repair or replacement] to fail of its essential purpose, remedy may be had as provided in this Act.\u2019 \u201d Pearson, 349 Ill. App. 3d at 694, quoting 810 ILCS 5/2\u2014 719(2) (West 2000). \u201cThe cases interpreting section 2 \u2014 719(2) contemplate and impose a reasonableness standard\u201d in determining whether a limited remedy failed of its essential purpose. Pearson, 349 Ill. App. 3d at 694. \u201cA manufacturer does not have an unlimited time or an unlimited number of attempts to repair an automobile; rather, the limited warranty is breached and/or fails of its essential purpose if successful repairs are not made within a reasonable time or within a reasonable number of attempts.\u201d Pearson, 349 Ill. App. 3d at 695; see generally Lara, 331 Ill. App. 3d at 62, 770 N.E.2d at 728-29 (\u201cA remedy limitation fails of its essential purpose when a seller unreasonably delays the replacement of the product, refuses to replace it at all, or is unsuccessful in correcting the defects \u2018within a reasonable time\u2019 \u201d), quoting Intrastate Piping & Controls, Inc. v. Robert-James Sales, Inc., 315 Ill. App. 3d 248, 257-58, 733 N.E.2d 718 (2000); Nowalski v. Ford Motor Co., 335 Ill. App. 3d 625, 628 n.3, 781 N.E.2d 578, 581 n.3 (2002) (follows Lara; where a limited warranty is at issue, court must rely on UCC cases \u201cholding the seller must correct the defects \u2018within a reasonable time\u2019 \u201d); Adams v. J.I. Case Co., 125 Ill. App. 2d 388, 403, 261 N.E.2d 1 (1970) (failure of exclusive remedy provided in warranty to repair and replace defective parts \u201creadily found in the allegation that defendants were wilfully dilatory or careless and negligent in complying with their obligations under the warranty\u201d).\nIn order to prove that defendant breached its written limited warranty on the Sonata, plaintiff had to prove:\n\u201c(1) the existence of a defect in the automobile covered by the warranty; (2) compliance with the terms of the warranty by plaintiff; (3) plaintiff afforded defendant a reasonable opportunity to repair the defect; and (4) defendant was unable to repair the defect after a reasonable time or a reasonable number of attempts.\u201d Pearson, slip op. at 12.\nThe jury determined that plaintiff proved her case and we find some evidence to support this determination.\nIt is clear that a defect existed in the car given that the ordinary purpose for which a car would be used, i.e., as a mode of transportation, would necessarily entail being able to start the car so that it can be driven. Although defendant argues that Gartner did not verify that the car would not start, the jury found plaintiffs testimony that the car would not start credible. Credibility of witnesses is for the trier of fact to determine. Omni Partners v. Down, 246 Ill. App. 3d 57, 64, 614 N.E.2d 1342, 1347 (1993). Moreover, given the unlikelihood that plaintiff would inflict on herself, her family and her employer the inconvenience and aggravation caused by having to take the car for repair numerous times without good reason, the jury\u2019s determination was reasonable.\nThe evidence supports the jury\u2019s apparent determination that plaintiff complied with the terms of the warranty. The warranty excludes coverage for damage or failure resulting from plaintiffs negligence of proper maintenance as required in the owner\u2019s manual. The manual prescribes that the first maintenance, an oil change, be performed after 6 months or 7,500 miles. The October 6 work order and plaintiffs testimony show that Gartner performed an oil change on the car two months after purchase and after plaintiff had driven the car almost 4,000 miles, well prior to the required maintenance interval. Although the maintenance interval prescribed for vehicles \u201cnormally used under severe driving conditions\u201d is 3 months/3,000 miles, it was not argued or shown that plaintiff drove the Sonata under such conditions and the shorter maintenance interval is inapplicable here.\nCoverage is also excluded for damage or failure resulting from\n\u201c\u2014 Misuse, abuse, accident, theft, water/flooding or fire.\n\u2014 Use of improper or insufficient fuel, fluids or lubricants.\n\u2014 Use of parts other than Hyundai genuine parts, or parts of non-equivalent quality and design.\n\u2014 Any device or accessories not supplied by Hyundai.\n\u2014 Modifications, alterations, tampering or improper repair.\n\u2014 Parts or accessories used in applications for which they were not designed or not approved by HMA.\u201d\nPlaintiff testified that she used the car to drive to work, church and run errands, which are all normal uses for a car; she had never been in an accident with the car; and that the car had never been vandalized, raced, off-roaded or flooded. This testimony negates \u201c[mjisuse, abuse, accident, theft, water/flooding or fire\u201d as possible causes of the defect. There was no evidence that plaintiff failed to use proper or sufficient fuel, fluids or lubricants or genuine Hyundai parts or used parts and accessories in nonapproved ways or that such were the cause of the car\u2019s defect. The oil change and plaintiffs testimony that she tendered the car for repair only to Gartner, Hyundai\u2019s approved dealer, leads to the inference any repairs were properly performed by Hyundai-approved personnel in Hyundai-approved applications with Hyundai-approved fluids, parts and materials.\nThere was also no evidence that the remote starter system, clearly a \u201cdevice or accessor[y] not supplied by Hyundai\u201d and a \u201cmodification, alteration\u201d to the car, was the cause of the car\u2019s failure to start. The jury specifically found that plaintiff proved that \u201cthe aftermarket remote starter-alarm system was not the cause of the no-start condition.\u201d There is some evidence to support this determination given that (a) the car did not exhibit the problem until plaintiff had driven 1,574 miles and 26 days with the starter system in place; (b) the car failed to start even after the system had been removed and replaced with an updated system; and (c) the problem with the car was not fully resolved until after Gartner replaced the starter relay and trans range switch in December, neither of which is apparently related to the remote starter system. The jury reasonably could conclude that plaintiff complied with the terms of the warranty.\nPlaintiff was not required to prove the specific cause of the failure to start, only that the defect existed in materials or parts covered by the warranty, those originally manufactured or installed by Hyundai, and that there was no secondary cause for the defect. The above evidence that the problem continued after replacement of the remote starter and was not remedied until after replacement of the starter relay and trans range switch also supports the jury\u2019s apparent conclusion that the defect existed in the original parts.\nIt is uncontested that plaintiff tendered the Sonata for repair to Gartner within the period covered by defendant\u2019s limited warranty and gave Gartner ample opportunity to repair the vehicle.\nThe Sonata\u2019s defect, its failure to start, appeared to be repaired at the time of trial. However, the question remained whether it was repaired within a reasonable time or reasonable number of attempts. The jury found that defendant breached its limited warranty, necessarily finding that five repair attempts within four months of purchase, which resulted in plaintiffs being without her car and/or having to use a loaner car for approximately 39 days within that four-month time period, was unreasonable. Reasonableness is for the jury to determine. Pearson, 349 Ill. App. 3d at 696.\nGiven that there is evidence to sustain each necessary element of the plaintiffs action for breach of limited warranty, the trial court was correct in denying defendant\u2019s motion for judgment n.o.v. on this count.\nBreach of Implied Warranty of Merchantability\nDefendant also argues that plaintiff failed to prove breach of the implied warranty of merchantability. As previously stated, where, as here, the manufacturer expressly warrants a product to a consumer, the Magnuson-Moss Act imposes on manufacturers the same implied warranties that state law imposes on the buyer\u2019s immediate seller. Mekertichian, 347 Ill. App. 3d at 831-32; see also Cosman v. Ford Motor Co., 285 Ill. App. 3d 250, 255, 674 N.E.2d 61, 64 (1996), citing Rothe, 119 Ill. 2d 288, 518 N.E.2d 1028. State law, section 2 \u2014 314(2)(c) of the UCC, provides that a product breaches an implied warranty of merchantability if it is not \u201cfit for the ordinary purposes for which such goods are used.\u201d 810 ILCS 5/2 \u2014 314(2)(c) (West 2000); Alvarez, 321 Ill. App. 3d at 702, 749 N.E.2d at 22. \u201cWith regard to automobiles, \u2018[fjitness for the ordinary purpose of driving implies that the vehicle should be in a safe condition and substantially free of defects.\u2019 \u201d Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1149, 759 N.E.2d 66, 74 (2001), quoting Overland Bond & Investment Corp. v. Howard, 9 Ill. App. 3d 348, 354, 292 N.E.2d 168, 172-73 (1972). Pursuant to section 2 \u2014 725(2) of the UCC, an implied warranty of merchantability applies to the condition of the goods at the time of sale, not to their future performance. Cosman, 285 Ill. App. 3d at 257, 674 N.E.2d at 66; 810 ILCS 5/2 \u2014 725(2) (West 2000).\nIn order to prove breach of an implied warranty of merchantability, plaintiff must prove that the Sonata was defective and that the defect(s) existed when the car left defendant\u2019s control. Alvarez, 321 Ill. App. 3d at 702-03, 749 N.E.2d at 22, citing Cosman, 285 Ill. App. 3d at 257, 674 N.E.2d at 66. Whether the defect existed at the time of delivery is for the trier of fact to determine. Lipinski, 325 Ill. App. 3d at 1151, 759 N.E.2d at 75.\nProof of a specific defect is not required. Alvarez, 321 Ill. App. 3d at 703, 749 N.E.2d at 22. Rather, a defect may be proven inferentially by direct or circumstantial evidence. Alvarez, 321 Ill. App. 3d at 703, 749 N.E.2d at 23, citing Tweedy v. Wright Ford Sales, Inc., 64 Ill. 2d 570, 357 N.E.2d 449 (1976), and Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 377, 618 N.E.2d 909, 915-16 (1993). \u201c \u2018Aprima facie case that a product was defective and that the defect existed when it left the manufacturer\u2019s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed \u201cto perform in the manner reasonably to be expected in light of [its] nature and intended function.\u201d \u2019 \u201d Alvarez, 321 Ill. App. 3d at 703, 749 N.E.2d at 23, quoting Tweedy, 64 Ill. 2d at 574, 357 N.E.2d at 452.\nThe jury found that defendant breached its implied warranty of merchantability, impliedly finding the Sonata unmerchantable, and there is evidence to support this determination. The car failed to perform in the manner reasonably to be expected in light of its nature and intended function as a mode of transportation when it periodically failed to start. A car that does not start and cannot be driven at will is clearly unmerchantable.\nThe question thus becomes whether the defect existed when the car left defendant\u2019s possession and control. A malfunction need not occur immediately upon purchase of the vehicle but can be inferred to exist at the time the car left the defendant\u2019s control through evidence of reasonable and proper handling of the car in the interim period between leaving the defendant\u2019s possession and control and manifestation of the malfunction. Alvarez, 321 Ill. App. 3d at 704, 749 N.E.2d at 24. \u201c \u2018[Plroof of a malfunction during normal use which tends to exclude other extrinsic causes is sufficient to make a prima facie case on the issue of the existence of a defective condition.\u2019 \u201d Alvarez, 321 Ill. App. 3d at 704, 749 N.E.2d at 24, quoting Johnson v. Amerco, Inc., 87 Ill. App. 3d 827, 830, 409 N.E.2d 299, 303 (1980).\nPlaintiff demonstrated that the malfunction occurred in the absence of abnormal use or reasonable secondary causes. Her testimony that (a) she used the car only to drive to work, church and run errands, all normal uses; (b) it had never been vandalized, raced, off-roaded or flooded; and (c) she got an oil change two months after purchase demonstrates the absence of abnormal use. Similarly, the October oil change eliminates failure to maintain as a reasonable secondary cause of the car\u2019s failure to start, especially since the problem started only a month after plaintiff purchased the car, well prior to the 6-month/7,500-mile maintenance interval prescribed by defendant for compliance with the terms of its warranties.\nThe most likely secondary cause was the installation of the remote starter system three weeks after Plaintiff bought the car because plaintiff did not experience the no-start problems until after the system was installed. However, as stated previously, there is evidence to support the jury\u2019s determinations that plaintiff proved that \u201cthe aftermarket remote starter-alarm system was not the cause of the no-start condition.\u201d Accordingly, given that a car\u2019s failure to start is unarguably a failure to perform in the manner reasonably to be expected in light of its nature and intended function and plaintiff presented evidence eliminating abnormal use and reasonable secondary causes as the reason for the failure to start, plaintiff made a prima facie case that the Sonata was defective and that the defect existed when it left the manufacturer\u2019s control. The court did not err in denying defendant\u2019s motion for judgment n.o.v. on the breach of implied warranty of merchantability count.\nConsequential Damages\nDefendant lastly argues that the court erred in entering judgment on the jury award of consequential damages because the limited warranty specifically excluded recovery for incidental and consequential damages. However, where a contract limits a remedy to repair and/or replacement of defective parts or goods and the remedy failed in its essential purpose, a provision excluding incidental and consequential damages will have no effect and those damages will be available to the plaintiff pursuant to the UCC. Lara, 331 Ill. App. 3d at 63, 770 N.E.2d at 729. \u201cA remedy limitation fails of its essential purpose when a seller unreasonably delays the replacement of the product, refuses to replace it at all, or is unsuccessful in correcting the defects \u2018within a reasonable time.\u2019 \u201d Lara, 331 Ill. App. 3d at 62, 770 N.E.2d at 728-29, quoting Intrastate, 315 Ill. App. 3d at 257-58. In finding that defendant breached its limited warranty, the jury necessarily found that defendant failed to perform the repairs within a reasonable number of attempts or within a reasonable time. Given that there was evidence to support the jury\u2019s determination, defendant\u2019s limited warranty of repair or replacement of defective parts failed of its essential purpose and defendant\u2019s exclusion of incidental and consequential damages under the same contract will not be enforced. The court did not err in entering judgment on the jury\u2019s award of such damages.\nAttorney Fees and Costs\nThe trial court awarded attorney fees and costs to plaintiff as the prevailing party. Pursuant to Section 2310(d)(2) of the MagnusonMoss Act, such an award is within the trial court\u2019s discretion and will not be disturbed on review absent an abuse of that discretion. Cannon v. William Chevrolet/Geo, Inc., 341 Ill. App. 3d 674, 685, 794 N.E.2d 843, 852 (2003); 15 U.S.C. \u00a7 2310(d)(2) (2000). Given that we affirm the trial court\u2019s judgment in favor of plaintiff on the breach of warranty claims and defendant does not argue that the fees and/or costs are excessive, we affirm the court\u2019s award of attorneys\u2019 fees and costs.\nFor the reasons stated above, we affirm the decision of the trial court.\nAffirmed.\nHOFFMAN, EJ., and HALL, J., concur.\n'\u2018Severe driving conditions\u201d include repeated short distance driving, extensive idling, driving in dusty rough roads, towing a trailer, driving in very cold weather, and more than 50% driving in heavy city traffic during hot weather above 90\u00b0E", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Segal, McCambridge, Singer & Mahoney, Ltd., of Chicago (Paul E. Wojcicki and E. Brooke Harkrader, of counsel), for appellant.", "Krohn & Moss, Ltd., of Chicago (Scott M. Cohen, of counsel), for appellee." ], "corrections": "", "head_matter": "SHANTE RAZOR, Plaintiff-Appellee, v. HYUNDAI MOTOR AMERICA, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201403\u20141359\nOpinion filed June 16, 2004.\nSegal, McCambridge, Singer & Mahoney, Ltd., of Chicago (Paul E. Wojcicki and E. Brooke Harkrader, of counsel), for appellant.\nKrohn & Moss, Ltd., of Chicago (Scott M. Cohen, of counsel), for appellee." }, "file_name": "0651-01", "first_page_order": 669, "last_page_order": 685 }