{ "id": 4262956, "name": "LUCY MYDLACH, Plaintiff-Appellant, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee", "name_abbreviation": "Mydlach v. DaimlerChrysler Corp.", "decision_date": "2005-09-30", "docket_number": "No. 1\u201403\u20141402", "first_page": "135", "last_page": "159", "citations": [ { "type": "official", "cite": "364 Ill. App. 3d 135" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "334 F. Supp. 2d 1065", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9193721 ], "year": 2004, "pin_cites": [ { "page": "1070", "parenthetical": "agreeing with Kutzler that revocation is not available to consumer seeking relief against non-selling manufacturer" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/334/1065-01" ] }, { "cite": "384 F.3d 402", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9182312 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/f3d/384/0402-01" ] }, { "cite": "03 C 1884", "category": "reporters:state", "reporter": "Cow.", "year": 2003, "pin_cites": [ { "parenthetical": "\"It is clear that the Magnuson-Moss Act provides for revocation of acceptance as a remedy against a warrantor-manufacturer\"" } ], "opinion_index": 0 }, { "cite": "98 C 3061", "category": "reporters:state", "reporter": "Cow.", "year": 1999, "pin_cites": [ { "parenthetical": "hereinafter Jones I" } ], "opinion_index": 0 }, { "cite": "127 F. Supp. 2d 958", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11076584 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "962", "parenthetical": "hereinafter Jones II" }, { "page": "967", "parenthetical": "enforcement of the right to a refund under the Act is an equitable remedy which requires consumer to show substantial impairment of the product's value and that no adequate remedy at law exists" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/127/0958-01" ] }, { "cite": "97 C 7792", "category": "reporters:state", "reporter": "Cow.", "year": 1999, "opinion_index": 0 }, { "cite": "03 C 2051", "category": "reporters:state", "reporter": "Cow.", "year": 2003, "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 801", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3720033 ], "year": 2003, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0801-01" ] }, { "cite": "99 C 7980", "category": "reporters:state", "reporter": "Cow.", "year": 2000, "opinion_index": 0 }, { "cite": "03 C 2389", "category": "reporters:state", "reporter": "Cow.", "weight": 2, "year": 2003, "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" }, { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0288-01" ] }, { "cite": "115 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180014 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "311" }, { "page": "315-16" }, { "page": "315" }, { "page": "315-16" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0294-01" ] }, { "cite": "321 Ill. App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132331 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "702-03" }, { "page": "702-03" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0696-01" ] }, { "cite": "325 Ill. App. 3d 1139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570734 ], "weight": 11, "year": 2001, "pin_cites": [ { "page": "1149" }, { "page": "1149" }, { "page": "1150" }, { "page": "1142" }, { "page": "1142-43" }, { "page": "1143, 1149" }, { "page": "1143" }, { "page": "1151" }, { "page": "1151" }, { "page": "1150" }, { "page": "1151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1139-01" ] }, { "cite": "347 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948781 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "831" }, { "page": "832" }, { "page": "832" }, { "page": "832" }, { "page": "832" }, { "page": "834-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0828-01" ] }, { "cite": "15 U.S.C. \u00a7 2303", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "402 F.3d 912", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9180364 ], "year": 2005, "pin_cites": [ { "page": "918-19", "parenthetical": "noting that the Act's definition of \"written warranty\" is not limited to either full or limited warranties and that section 2310(d)(1) \"does not limit its application to either full or limited warranties\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/402/0912-01" ] }, { "cite": "349 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5436878 ], "weight": 7, "year": 2004, "pin_cites": [ { "page": "689" }, { "page": "693" }, { "page": "694" }, { "page": "693" }, { "page": "694" }, { "page": "693-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0688-01" ] }, { "cite": "342 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474359 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "489" }, { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0480-01" ] }, { "cite": "331 Ill. App. 3d 53", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209174 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "60" }, { "page": "59, 61" }, { "page": "61" }, { "page": "62" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0053-01" ] }, { "cite": "158 Ill. 2d 391", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780274 ], "year": 1994, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0391-01" ] }, { "cite": "807 F.2d 1000", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1649665, 4330149 ], "year": 1986, "pin_cites": [ { "page": "1012" } ], "opinion_index": 0, "case_paths": [ "/f2d/807/1000-01", "/us-app-dc/257/0085-01" ] }, { "cite": "114 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591453 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "382-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0376-01" ] }, { "cite": "15 U.S.C. \u00a7 2304", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 1994, "pin_cites": [ { "page": "(a)(4)" }, { "page": "(a)(1)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "462 U.S. 151", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186614 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "158-60" }, { "page": "485-87" }, { "page": "2287-89" } ], "opinion_index": 0, "case_paths": [ "/us/462/0151-01" ] }, { "cite": "285 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295574 ], "weight": 29, "year": 1996, "pin_cites": [ { "page": "255" }, { "page": "255" }, { "page": "255" }, { "page": "253" }, { "page": "257" }, { "page": "257" }, { "page": "254" }, { "page": "254" }, { "page": "261" }, { "page": "260-61" }, { "page": "258-59" }, { "page": "259" }, { "page": "259" }, { "page": "259" }, { "page": "259" }, { "page": "259" }, { "page": "259" }, { "page": "260" }, { "page": "259-60" }, { "page": "259-60" }, { "page": "260-61" }, { "page": "260" }, { "page": "260" }, { "page": "261" }, { "page": "259-60" }, { "page": "259-60" }, { "page": "257", "parenthetical": "dismissing plaintiffs implied warranty of merchantability claim against manufacturer" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0250-01" ] }, { "cite": "209 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461950 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "386" }, { "page": "386" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0376-01" ] }, { "cite": "335 Ill. 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App. 3d", "case_ids": [ 1034035 ], "year": 2002, "pin_cites": [ { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0969-01" ] }, { "cite": "197 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259112 ], "year": 2001, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0028-01" ] }, { "cite": "188 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536033 ], "year": 1999, "pin_cites": [ { "page": "30-31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0017-01" ] }, { "cite": "15 U.S.C. \u00a7 2310", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 11, "year": 2000, "pin_cites": [ { "page": "(d)(1)" }, { "page": "(d)" }, { "page": "(d)(1)" }, { "page": "(d)(1)" }, { "page": "(d)(1)" }, { "page": "(e)" }, { "page": "(d)(1)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(d)" }, { "page": "(d)(1)" } ], "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7 2301", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 9, "year": 2000, "pin_cites": [ { "page": "et seq." }, { "page": "(7)" }, { "page": "(10)" }, { "page": "(6)" }, { "page": "(6)" }, { "page": "(6)" }, { "page": "(6)(B)" }, { "page": "(7)" }, { "page": "(7)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1245, "char_count": 55413, "ocr_confidence": 0.809, "pagerank": { "raw": 1.0413446433105334e-07, "percentile": 0.5508469798818386 }, "sha256": "b88fcda59af0ce21ffbd0755d826f636246296ba65e599813228cbcd5fa957b6", "simhash": "1:29d8dc920e28f475", "word_count": 9256 }, "last_updated": "2023-07-14T18:36:54.493342+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LUCY MYDLACH, Plaintiff-Appellant, v. DaimlerChrysler Corporation, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nPlaintiff Lucy Mydlach brought this action against defendant DaimlerChrysler Corporation under the Magnuson-Moss Warranty\u2014 Federal Trade Commission Improvement Act (Act or Magnuson-Moss Act) (15 U.S.C. \u00a7 2301 et seq. (2000)) after she purchased a used car manufactured by defendant which was allegedly defective. Plaintiff\u2019s three-count complaint alleged breach of written warranty (count I), breach of implied warranty of merchantability (count II), and revocation of acceptance (count III). Defendant filed a motion for summary judgment, contending that plaintiffs claims were barred by the four-year statute of limitations included in section 2 \u2014 725 of the Uniform Commercial Code \u2014 Sales (Code or UCC) (810 ILCS 5/2 \u2014 725 (West 2000)). The trial court granted defendant\u2019s motion, and plaintiff now appeals, contending the trial court erred in finding that her claims were time barred. She further contends that the trial court should have recognized her claim for revocation of acceptance because the Act permits consumers to recover equitable relief.\nIn a previously filed opinion, we affirmed the trial court\u2019s entry of summary judgment on count II and reversed its entry of summary judgment on counts I and III. Mydlach v. DaimlerChrysler Corp., No. 1 \u2014 03\u20141402 (September 30, 2005). In a petition for rehearing, defendant contends that the trial court properly entered summary judgment on counts I and III and argues that the Magnuson-Moss Act does not apply to the limited warranty at issue in the instant case. Upon consideration of defendant\u2019s petition for rehearing, we conclude that our previous decision reversing the trial court\u2019s entry of summary judgment on counts I and III was proper.\nBACKGROUND\nOn June 20, 1998, plaintiff bought a used 1996 Dodge Neon, manufactured by defendant, from McGrath Buick Nissan (McGrath) in Elgin, Illinois. The car was put in service to its original buyer on June 24, 1996. At that time, the car carried a 3-year/36,000-mile warranty. When plaintiff bought the car on June 20, 1998, about one year or 10,000 miles remained on the warranty.\nWithin approximately 17 days of buying the car, plaintiff tendered it to an authorized dealer of defendant for repairs. On July 7, 1998, she brought in the car complaining of a squealing noise in the brakes. On July 15, 1998, she brought in the car for a fluid leak. On July 24, 1998, repairs were performed for a transmission leak, a creaking noise while shifting, failure of the transaxle, and failure of the engine mounts. On July 31, 1998, the car was repaired for a leak and the failure of the drive shaft. On August 6, 1998, repairs were performed for the same problems. Finally, on August 21, 1998, the car was repaired for a rattle in the front end due to a defective tire. At the time of this repair, the car\u2019s mileage was 31,103 miles.\nOn May 16, 2001, plaintiff filed her three-count complaint against defendant. In count I plaintiff alleged breach of written warranty based upon the limited written warranty provided by defendant. The warranty states in relevant part:\n\u201cWHAT\u2019S COVERED\n*** The \u2018Basic Warranty\u2019 covers the cost of all parts and labor needed to repair any item on your vehicle (except as noted below) that\u2019s defective in material, workmanship or factory preparation. You pay nothing for these repairs. The \u2018Basic Warranty\u2019 covers every Chrysler supplied part of your vehicle, EXCEPT its tires and cellular telephone. *** These warranty repairs or adjustments (parts and labor) will be made by your dealer at no charge using new or remanufactured parts.\u201d\nPlaintiff alleged that as a result of ineffective repair attempts by defendant, she could not use the car as she had intended. Specifically, plaintiff alleged that defendant failed to properly diagnose a fluid leak despite seven repair attempts and alleged she was entitled to seek relief under section 2310(d)(1) of the Magnuson-Moss Act (15 U.S.C. \u00a7 2310(d)(1) (2000)).\nIn count II, plaintiff alleged that her car \u201cwas subject to an implied warranty of merchantability as defined in [section 2301(7) of the Act (15 U.S.C. \u00a7 2301(7) (2000))] running from [defendant] to the intended consumer, plaintiff.\u201d Plaintiff alleged that defendant breached this warranty as the defect in her car rendered it \u201cunmerchantable and thereby not fit for the ordinary and essential purpose for which [it] was intended and as represented by [defendant].\u201d\nIn count III, which is styled \u201cRevocation of Acceptance Pursuant to Section 2310(d) of the [Act] Manufacturer,\u201d plaintiff alleged that defendant\u2019s tender of her car \u201cconstitutes a violation of 15 U.S.C. \u00a7 2310(d).\u201d\nDefendant filed a motion for summary judgment, seeking dismissal of all three counts. In the motion, defendant contended that the express and implied warranty claims were subject to the four-year statute of limitations included in section 2 \u2014 725 of the UCC (810 ILCS 5/2 \u2014 725 (West 2000)), that the statute had begun running upon purchase by the original buyer on June 24, 1996, and that counts I and II of plaintiff\u2019s May 2001 complaint were thus time barred. Defendant further contended the claim for revocation in count III should be dismissed because no privity existed between defendant and plaintiff and because plaintiff could not prove a breach of implied warranty of merchantability.\nThe trial court granted defendant\u2019s motion for summary judgment, finding that plaintiff\u2019s complaint was untimely, and denied plaintiffs motion for reconsideration.\nANALYSIS\nSummary judgment is appropriate where the pleadings, depositions, affidavits, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999). Our review of a grant of summary judgment is de novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001). We may affirm on any ground supported by the record, even if that ground was not relied on by the trial court. Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d 969, 971 (2002), citing Leonardi v. Loyola University, 168 Ill. 2d 83, 97 (1995).\nThe Magnuson-Moss Act was designed \u201cto improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products.\u201d 15 U.S.C. \u00a7 2302(a) (2000). \u201cAlthough the Act does not require any consumer product to be warranted [citation], if a manufacturer or supplier chooses to warrant a product, the Act imposes specific minimum federal standards for warranties [citation].\u201d Nowalski v. Ford Motor Co., 335 Ill. App. 3d 625, 628 (2002). The Magnuson-Moss Act \u201cprovides a statutory private right of action to consumers who are \u2018damaged 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.\u2019 \u201d Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 386 (2004), quoting 15 U.S.C. \u00a7 2310(d)(1) (1994). \u201cA consumer who prevails [under the Act] may elect repair, replacement, or refund of defective parts.\u201d Cosman v. Ford Motor Co., 285 Ill. App. 3d 250, 255 (1996), citing 15 U.S.C. \u00a7 2301(10) (1994).\nI. Breach of Written Warranty (Count I)\nPlaintiff contends that the trial court improperly dismissed her breach of express warranty claim based on its conclusion that it was barred by the statute of limitations. Count I of plaintiffs complaint seeks relief pursuant to section 2310(d)(1) of the Act (15 U.S.C. \u00a7 2310(d)(1) (2000)) and alleges that defendant issued a written warranty promising to repair defects in plaintiffs car and that it breached that warranty by failing to repair defects in plaintiffs car despite various attempts to do so.\nWe note as a preliminary matter that plaintiff filed all three of the counts in her complaint under the Act, a federal statute that does not provide a statute of limitations. See Nowalski, 335 Ill. App. 3d at 626, 628. \u201cWhere a federal statute creates a cause of action but does not establish a limitations period for that action, state courts will apply the statute of limitations governing the state cause of action most closely analogous to the federal action.\u201d Nowalski, 335 Ill. App. 3d at 628, citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158-60, 76 L. Ed. 2d 476, 485-87, 103 S. Ct. 2281, 2287-89 (1983). The Illinois action most analogous to plaintiffs warranty claims is an action for breach of warranty in a contract for sale. Cosman, 285 Ill. App. 3d at 255. This state law action is subject to the four-year statute of limitations included in section 2 \u2014 725 of the UCC (810 ILCS 5/2 \u2014 725 (West 2000)), and accordingly we conclude, and the parties agree, that this statute of limitations is applicable in the instant case. Cosman, 285 Ill. App. 3d at 255; Nowalski, 335 Ill. App. 3d at 626, 628.\nSection 2 \u2014 725 of the UCC states in relevant part:\n\u201cStatute of Limitations in Contracts for Sale. (1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.\n(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party\u2019s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.\u201d (Emphasis added.) 810 ILCS 5/2\u2014 725 (West 2000).\nWhile the parties agree that plaintiff was required under section 2 \u2014 725 of the UCC to file her claim for breach of express warranty within four years after her cause of action accrued, they disagree about when that cause of action accrued. Plaintiff contends the four-year statute of limitations in section 2 \u2014 725(1) of the UCC began running on June 20, 1998, when the used 1996 Dodge Neon was delivered to her, and that the trial court thus erred in finding that her complaint, filed in 2001, was untimely. Defendant responds that the statute of limitations began running on June 24, 1996, when the car was delivered to its first buyer, and that plaintiff\u2019s complaint was thus time barred.\nWe note that the written warranty at issue in the instant case is essentially a promise to repair defects in plaintiff\u2019s car. The question in the instant case is when did plaintiff\u2019s cause of action for breach of express warranty to repair accrue (i.e., when did breach of that warranty allegedly occur) and in turn trigger the running of the statute of limitations. This court has previously addressed this question and arrived at two distinct conclusions. See Cosman, 285 Ill. App. 3d 250; Nowalski, 335 Ill. App. 3d 625.\nIn Cosman, the plaintiffs purchased a motor home in 1989 and in 1994 filed a complaint under the Act for breach of express and implied warranties against the manufactures of that vehicle. Cosman, 285 Ill. App. 3d at 253. The vehicle came with a limited express warranty provided by manufacturer Ford which covered defects in its power train for 6 years or 60,000 miles after the delivery date. Cosman, 285 Ill. App. 3d at 257. The warranty stated as follows:\n\u201c \u2018Under the Limited Warranty *** Ford warrants that your selling dealer will repair, replace, or adjust all parts (expect [sic] tires) that are found to be defective in factory-supplied materials or workmanship. The defects must occur under normal use of the vehicle during the warranty coverage period.\u2019 \u201d Cosman, 285 Ill. App. 3d at 257.\nThe trial court dismissed the counts for breach of express and implied warranties, ruling that they were barred by the four-year statute of limitations included in section 2 \u2014 725 of the UCC (810 ILCS 5/2 \u2014 725 (West 1994)). Cosman, 285 Ill. App. 3d at 254. The trial court found that the statute of limitations began to run on September 12, 1989, when the plaintiffs took delivery of the vehicle, and that plaintiffs\u2019 1994 complaint was thus not timely filed. Cosman, 285 Ill. App. 3d at 254.\nOn appeal, this court reversed the trial court\u2019s dismissal of the plaintiffs\u2019 express warranty claim against manufacturer Ford. Cosman, 285 Ill. App. 3d at 261. The court found that the four-year statute of limitations included in subsection (1) of section 2 \u2014 725 of the UCC began to run on the express warranty claim, not on the date the plaintiffs took delivery of the vehicle, but when Ford allegedly refused or failed to properly repair the vehicle. Cosman, 285 Ill. App. 3d at 260-61.\nThe court recognized that subsection (2) of section 2 \u2014 725 of the UCC \u201cprovides the statute of limitations for a breach of warranty accrues upon delivery.\u201d Cosman, 285 Ill. App. 3d at 258-59. The court, however, declined to apply that subsection, finding that the promise to repair which plaintiffs alleged in their complaint did not fall within the UCC\u2019s definition of \u201cwarranty.\u201d Cosman, 285 Ill. App. 3d at 259. The court specifically noted that the UCC defines \u201cexpress warranty\u201d to mean:\n\u201c \u2018(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.\n(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.\n(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.\u2019 \u201d (Emphasis added.) Cosman, 285 Ill. App. 3d at 259, quoting 810 ILCS 5/2 \u2014 313 (West 1994).\nThe court found that the promise to repair in the warranty before it did not fit within the above definition. Cosman, 285 Ill. App. 3d at 259. The court recognized that the promise to repair was made as part of the sale of the goods and related to the goods. Cosman, 285 Ill. App. 3d at 259. It emphasized, however, that the promise did not \u201cwarrant\u201d the quality or performance of the vehicle and that \u201cgoods cannot \u2018conform to the *** promise\u2019 to repair.\u201d Cosman, 285 Ill. App. 3d at 259. Accordingly, because the UCC did not include promises to repair within its definition of \u201cexpress warranty,\u201d the court declined to apply section 2 \u2014 725(2) of the UCC, which states that a cause of action for breach of warranty accrues upon delivery. Cosman, 285 Ill. App. 3d at 259. The court further reasoned that interpreting a repair warranty as though it were a performance warranty would \u201clead[ ] to a judicial broadening of the carefully drafted [UCC].\u201d Cosman, 285 Ill. App. 3d at 260.\nIn contrast to the UCC, the court recognized, the MagnusonMoss Act does include promises to repair within its definition of \u201cwritten warranty.\u201d Cosman, 285 Ill. App. 3d at 259-60. The court noted that the Act defines \u201cwritten warranty\u201d as:\n\u201c \u2018(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\n(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.\u2019 \u201d (Emphasis added.) Cosman, 285 Ill. App. 3d at 259-60, quoting 15 U.S.C. \u00a7 2301(6) (1994).\nAfter observing that Ford\u2019s promise to repair fell within the Act\u2019s definition of \u201cwritten warranty,\u201d the court looked to the Act for guidance in determining when a cause of action for breach of a written warranty to repair accrues. The court concluded that a breach of the repair warranty under the Act could not occur until Ford refused or failed to repair. Cosman, 285 Ill. App. 3d at 260-61. In support of this conclusion, the court relied upon section 2304(a) of the Act, which requires consumers to allow warrantors a \u201c \u2018reasonable number of attempts *** to remedy defects\u2019 before the consumer may elect a refund or replacement of a defective product.\u201d Cosman, 285 Ill. App. 3d at 260, quoting 15 U.S.C. \u00a7 2304(a)(4) (1994). In addition, the court cited Sadat v. American Motors Corp., 114 Ill. App. 3d 376 (1983). Cosman, 285 Ill. App. 3d at 260. In Sadat, the reviewing court acknowledged that under the Act, \u201c[t]he warrantor\u2019s failure to allow the consumer to elect replacement or refund gives rise to an action at law for breach of warranty in which the consumer must prove only that a defect in the product exists which the warrantor was unable to repair after a reasonable number of attempts.\u201d Sadat, 114 Ill. App. 3d at 382-83.\nThe court in Cosman ultimately concluded:\n\u201cThe result we reach here does the least violence to two legislative acts \u2014 the [UCC] and the [Act] \u2014 drafted without an eye on the other. It preserves a four-year statute of limitations for promises that are part of a contract for the sale of goods, while recognizing that the Magnuson-Moss remedy for breach of a promise to repair cannot ripen until the promise is broken and has nothing to do with the inherent quality of the goods or their future performance.\nUnder Ford\u2019s 6-year or 60,000-mile warranty, plaintiffs may not claim that the vehicle was not of the quality bargained for, but Ford is still obligated by a term of the contract to make repairs. The refusal or failure to repair is actionable as a breach and the cause of action accrues when the promise of repair is breached and extends four years from that time.\u201d Cosman, 285 Ill. App. 3d at 261.\nHere, as in Cosman, the manufacturer provided a written limited warranty which included a promise to repair. Specifically, that warranty provides that it \u201ccovers the cost of all parts and labor needed to repair any item on your vehicle (except as noted below) that\u2019s defective in material, workmanship or factory preparation.\u201d Like the consumer in Cosman, plaintiff filed a count under the Act alleging breach of that warranty. Like the consumer in Cosman, plaintiff took her car to an agent of defendant several times, while the car was still under warranty, seeking repair for the same problems. Despite several attempts, defendant allegedly failed to successfully repair plaintiff\u2019s car. Following Cosman, we conclude plaintiff\u2019s right to bring a breach of written warranty action based on the promise to repair accrued when defendant allegedly failed to successfully repair her car after a reasonable number of attempts and that the four-year statute of limitations did not begin to run until that time.\nIn Nowalski, the appellate court revisited the issue addressed by the court in Cosman \u2014 whether a consumer\u2019s action for breach of a written repair warranty accrues when the manufacturer allegedly fails to successfully repair the vehicle or when the vehicle is delivered to the consumer. See Nowalski, 335 Ill. App. 3d 625. The court in Nowalski found that an action for breach of a repair warranty accrues on the day the vehicle is delivered and thus triggers the statute of limitations on that date. Nowalski, 335 Ill. App. 3d at 631-32. In reaching this conclusion, the court relied upon the language of section 2 \u2014 725 of the UCC. Nowalski, 335 Ill. App. 3d at 631-32. That section, as noted above, states in relevant part:\n\u201c(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. ***\n(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party\u2019s lack of knowledge of the breach. A breach of warranty occurs when *** delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.\u201d (Emphasis added.) 810 ILCS 5/2 \u2014 725 (West 2000).\nThe court noted that \u201c[t]here is nothing in subsection (1) [of section 2 \u2014 725 of the UCC] that gives courts, consumers, or manufacturers any guidance or direction concerning when the breach of warranty occurs.\u201d Nowalski, 335 Ill. App. 3d at 632. The court additionally noted that the parties agreed that the \u201cfuture performance\u201d phrase in subsection (2) did not apply to the case before it, and that the remaining words of that subsection, \u201c \u2018[a] breach of warranty occurs when tender of delivery is made,\u2019 \u201d were \u201cclear and unambiguous.\u201d Nowalski, 335 Ill. App. 3d at 632. Based upon that language in subsection (2), the court found the plaintiffs\u2019 cause of action accrued at the time of delivery. Nowalski, 335 Ill. App. 3d at 632.\nAlthough the Nowalski court extensively discussed the Cosman decision, it declined to follow that decision, reasoning that Cosman \u201cread subsection (2) out of existence.\u201d Nowalski, 335 Ill. App. 3d at 629. The court in Nowalski acknowledged that Cosman relied on section 2304(a) of the Act, which provides that the consumer must allow the warrantor a \u201creasonable number of attempts\u201d to remedy defects before the consumer may elect a refund or replacement of a defective product. Nowalski, 335 Ill. App. 3d at 631. However, the Nowalski court characterized section 2304(a) of the Act as a remedies provision and not a limitations provision. Nowalski, 335 Ill. App. 3d at 631.\nWe decline to follow the Nowalski court\u2019s conclusion that section 2 \u2014 725(2) of the UCC is applicable to repair warranties. As noted earlier, section 2310(d)(1) of the Act authorizes consumers to bring a private right of action for breach of written warranty (see Borowiec, 209 Ill. 2d at 386, quoting 15 U.S.C. \u00a7 2310(d)(1) (1994)) and generally calls for the application of state written and implied warranty law. See Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1986). However, as noted in Cosman, while the UCC does not include promises to repair in its definition of \u201cexpress warranty,\u201d section 2301(6) of the Magnuson-Moss Act does include promises to repair within its definition of \u201cwritten warranty.\u201d See Cosman, 285 Ill. App. 3d at 259-60; 15 U.S.C. \u00a7 2301(6) (2000).\nAccordingly, we, like the Cosman court, believe it appropriate to look to the Magnuson-Moss Act to assist us in determining when plaintiffs action under section 2310(d)(1) for breach of her written repair warranty accrued. The plain language of section 2310(e) of the Act supports our conclusion that a breach of a repair warranty under section 2310(d)(1) occurs when the warrantor fails to successfully repair the product after a reasonable number of attempts during the period of the written warranty. Section 2310(e) of the Act is entitled \u201cClass actions; conditions-, procedures applicable\u201d (emphasis added) and states as follows:\n\u201cNo action *** may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract *** unless the person obligated under the warranty or service contract is afforded a reasonable op portunity to cure such failure to comply.\u201d (Emphasis added.) 15 U.S.C. \u00a7 2310(e) (2000).\nThe plain language of section 2310(e) stating that no action may be brought under section 2310(d) unless the person obligated under the warranty is afforded a \u201creasonable opportunity to cure\u201d reflects that the right to bring a section 2310(d) breach of written repair warranty action cannot accrue before the warrantor has had a reasonable opportunity to repair the defect in question.\nWe note that contrary to the Nowalski court\u2019s assertion, Cosman does not read section 2 \u2014 725(2) of the UCC out of existence. Rather, Cosman recognizes that section 2 \u2014 725(2), which is based upon a definition of \u201cwarranty\u201d that does not include promises to repair, is not applicable in light of the provisions of the Act. Cosman, 285 Ill. App. 3d at 259-60. In addressing plaintiff\u2019s claim under section 2310(d)(1), we are mindful that the Act should be evaluated as a whole and that \u201ceach provision should be construed in connection with every other section.\u201d Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). Accordingly, for the reasons previously discussed and consistent with both Cosman and the provisions of the Act (15 U.S.C. \u00a7\u00a7 2301(6), 2310(d)(1), (e) (2000)), we hold that the purchaser of secondhand goods has four years to file an action for breach of a limited written warranty to repair following the failure to successfully repair after a reasonable number of attempts during the period of the written warranty.\nIn the factual context of this case it is significant that plaintiff, within the first 60 days of owning the car and with approximately 1 year or 8,000 miles remaining on the written repair warranty, allegedly presented it for repair of the same defect on several occasions. The failure to repair a car within the period of a written warranty which includes a promise to repair is actionable as a breach of that express warranty. Here, plaintiff sought repair of the alleged defect in her car within the period of the written warranty and filed her action within four years of defendant\u2019s alleged failure to repair. Thus, we conclude that the four-year statute of limitations in section 2 \u2014 725(1) of the UCC did not bar plaintiff\u2019s express warranty claim, and we reverse the portion of the trial court\u2019s order granting summary judgment in defendant\u2019s favor on count I of plaintiffs complaint.\nIn its petition for rehearing, defendant asserts that we erroneously reversed the trial court\u2019s entry of summary judgment in its favor on plaintiffs express warranty claim. Defendant contends that we improperly applied the Magnuson-Moss Act rather than the UCC to plaintiffs claim for breach of express warranty. In support of this contention, defendant notes the express warranty at issue in this case was a \u201climited\u201d warranty and argues \u201cMagnuson-Moss does not apply to limited warranties.\u201d\nWe reject defendant\u2019s argument. Plaintiff brought her breach of written warranty claim pursuant to section 2310(d)(1) of the Act. As previously noted in this opinion, section 2310(d)(1) of the Act \u201cprovides a statutory private right of action to consumers who are \u2018damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation *** under a written warranty, implied warranty, or service contract.\u2019 \u201d (Emphasis added.) Borowiec, 209 Ill. 2d at 386, quoting 15 U.S.C. \u00a7 2310(d)(1) (1994). The Act defines \u201cwritten warranty\u201d in relevant part as \u201cany 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.\u201d 15 U.S.C. \u00a7 2301(6)(B) (2000). Here, defendant promised in writing to repair any part (except for tires) on the car purchased by plaintiff which was defective in material, workmanship, or factory preparation. Thus, plaintiff was entitled to bring an action under the Act based on the alleged breach of the limited written warranty provided by defendant.\nTo support its argument that the Magnuson-Moss Act does not apply to limited warranties, defendant cites Lara v. Hyundai Motor America, 331 Ill. App. 3d 53 (2002), Bartow v. Ford Motor Co., 342 Ill. App. 3d 480 (2003), and Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688 (2004). We find defendant\u2019s reliance on these cases misplaced.\nIn Lara, the court stated that \u201c [i]t is clear that all of section 2304, including subsection 2304(b)(2), is intended to apply to full warranties only.\u201d Lara, 331 Ill. App. 3d at 60. The court, however, did not state that the Magnuson-Moss Act as a whole does not apply to limited warranties. Indeed, the court recognized that a plaintiff may bring a claim under section 2310(d)(1) of the Act for breach of an express limited warranty. See Lara, 331 Ill. App. 3d at 59, 61. Specifically the court stated: \u201cWe conclude that section 2304(b)(2) [which allows a warrantor to condition refund or replacement of a product upon the consumer\u2019s return of that product free of encumbrances] does not bar plaintiff\u2019s claim under section 2310(d)(1) for a breach of the express limited warranty.\u201d Lara, 331 Ill. App. 3d at 61.\nIn Bartow, the reviewing court addressed whether a consumer had standing to bring, inter alia, a breach of limited written warranty action under the Act even though she no longer owned the subject vehicle or the related warranty at the time she filed her suit. Bartow, 342 Ill. App. 3d at 489. In reviewing this issue, the court in Bartow asserted that Lara found that \u201cthe Act only governs \u2018full\u2019 warranties.\u201d Bartow, 342 Ill. App. 3d at 487, citing Lara, 331 Ill. App. 3d at 62. This assertion that the Act generally only governs full warranties indicates an expansion of Lara\u2019s more limited statement that section 2304 of the Act is intended to apply only to full warranties. Moreover, this assertion contradicts Lara\u2019s statement that a consumer may bring an action for breach of express limited warranty under section 2310(d)(1) of the Act.\nIn Pearson, the plaintiffs filed claims for breach of express limited warranty under the Act. Pearson, 349 Ill. App. 3d at 689. On review the court addressed whether a warrantor is required under a standard automobile repair and replace warranty to fix the automobile within a reasonable number of attempts. Pearson, 349 Ill. App. 3d at 693. In resolving this issue, the court found it was necessary to look not to the provisions of the Act but to the UCC. Pearson, 349 Ill. App. 3d at 694. To support this finding, the court cited Bartow for the proposition that limited warranties are not governed by the Act (Pearson, 349 Ill. App. 3d at 693) and quoted Lara\u2019s assertion that \u201c \u2018all of section 2304 applies to \u201cfull warranties\u201d only.\u2019 \u201d Pearson, 349 Ill. App. 3d at 694, quoting Lara, 331 Ill. App. 3d at 62. The Pearson court concluded that the reasonableness standard included in section 2304 of the Act (15 U.S.C. \u00a7\u00a7 2304(a)(1), (a)(4) (1994)) does not apply to limited warranties. Pearson, 349 Ill. App. 3d at 693-94.\nWe do not disagree with Pearson\u2019s conclusion that section 2304 of the Act applies only to full written warranties. We note, however, that plaintiff in the instant case brought her breach of written warranty claim under section 2310(d) of the Act, and that we are called upon to apply that section rather than section 2304. As previously noted, section 2310(e) of the Act states that no action may be brought under section 2310(d) of the Act for failure to comply with any obligation under any written warranty \u201cunless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply.\u201d 15 U.S.C. \u00a7 2310(e) (2000). Accordingly, we reject defendant\u2019s argument that Lara, Bartow, and Pearson, which address the applicability of section 2304 of the Act to written limited warranties, provide a basis for concluding that the Act as a whole, and section 2310(d)(1) in particular, do not apply to limited written warranties.\nFinally, we note that jurisdictions outside of Illinois have also recognized that the Act applies to both full and limited warranties. See, e.g., Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918-19 (9th Cir. 2005) (noting that the Act\u2019s definition of \u201cwritten warranty\u201d is not limited to either full or limited warranties and that section 2310(d)(1) \u201cdoes not limit its application to either full or limited warranties\u201d).\nDefendant correctly observes that the Act clearly distinguishes between \u201cfull\u201d and \u201climited\u201d warranties. Specifically, section 2303(a)(1) of the Act provides that a warranty which meets the minimum standards set forth in section 2304 of the Act shall be conspicuously designated as a \u201cfull (statement of duration) warranty,\u201d and a warranty which does not meet these standards shall be designated as a \u201climited warranty.\u201d 15 U.S.C. \u00a7 2303(a)(1) (2000). The standards included in section 2304(a) of the Act provide:\n\u201c(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty;\n(2) *** such warrantor may not impose any limitation on the duration of any implied warranty on the product;\n(3) such warrantor may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and\n(4) if the product *** contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product[.]\u201d 15 U.S.C. \u00a7 2304(a) (2000).\nDefendant asserts that the plain language of the Act makes it clear that the minimum standards included in section 2304(a) only apply to \u201cfull\u201d warranties and that \u201climited\u201d warranties are not required to meet these standards. Defendant further asserts that \u201cit is clear that all of section 2304, including subsection 2304(a)(1), is intended to apply to full warranties only.\u201d Defendant contends that in concluding that the statute of limitations began running when it allegedly failed to repair plaintiffs vehicle after a reasonable number of attempts, both this court and the court in Cosman improperly applied the \u201creasonable number of repair attempts\u201d language included in section 2304(a) to a limited warranty.\nWe recognize that the standards included in section 2304(a) of the Act must be complied with in a warranty which is designated as a \u201cfull warranty,\u201d and that a consumer would be entitled to bring an action under the Act based on the failure to comply with such a standard in a warranty designated as a \u201cfull warranty.\u201d We also recognize that a consumer would not be entitled to bring an action for violation of the standards included in section 2304(a) if he received a warranty designated as a \u201climited warranty.\u201d We note, however, that in the instant case plaintiffs complaint did not allege defendant violated section 2304(a) by giving a \u201cfull\u201d warranty which failed to comply with one of the standards listed in that section. Rather, plaintiff brought the subject claim under section 2310(d)(1) of the Act based on defendant\u2019s alleged failure to comply with an obligation to repair under a limited written warranty. Specifically, plaintiffs complaint alleged breach of the promise to repair included in the limited written warranty provided by defendant. In applying section 2310(d)(1), we were called upon to determine when the alleged breach of this repair warranty occurred. In making this determination, we did not apply section 2304(a)(4) to the limited warranty at issue to conclude that the warranty violated that section as a violation of that section was not alleged. Rather, in discussing the Cosman analysis, we noted that Cosman looked to section 2304(a)(4) to inform its decision as to when a breach of a repair warranty occurred. We followed Cosman, agreeing with its conclusion that the UCC does not include promises to repair within its definition of warranty, and that therefore the provisions of the Act governed.\nFinally, as previously noted in this modified opinion and as pointed out by plaintiff in her response to defendant\u2019s petition for rehearing, the plain language of section 2310(e) of the Act supports our conclusion that a breach of a repair warranty under section 2310(d)(1) occurs when the warrantor fails to successfully repair the product after a reasonable number of attempts during the period of the written warranty. This language provides that no action may be brought under section 2310(d) unless the person obligated under warranty is afforded a \u201creasonable opportunity to cure\u201d (15 U.S.C. \u00a7 2310(e) (2000)) and thus reflects that the right to bring a breach of a written repair warranty action under section 2310(d) cannot accrue before the warrantor has had a reasonable opportunity to repair or cure the defect in question. Accordingly, based upon the foregoing discussion, we deny the petition for rehearing\u2019s request that we affirm the trial court\u2019s entry of summary judgment.\nII. Breach of Implied Warranty of Merchantability (Count II)\nPlaintiff also contends the trial court improperly dismissed her claim for breach of implied warranty of merchantability based on its conclusion that the claim was barred by the statute of limitations. Count II of plaintiff\u2019s complaint asserts breach of the implied warranty of merchantability under the Act as defined under section 2301(7) of the Act (15 U.S.C. \u00a7 2301(7) (2000)) and alleges the fuel leak which defendant failed to adequately repair rendered plaintiffs car \u201cunmerchantable and thereby not fit for the ordinary and essential purpose for which the [car] was intended and as represented by [defendant].\u201d\nThe Act provides that actions predicated on a breach of an implied warranty of merchantability may arise only under state law. Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 831 (2004), citing 15 U.S.C. \u00a7 2301(7) (1994). Illinois state law for breach of implied warranty of merchantability actions is provided in section 2 \u2014 314 of the UCC. 810 ILCS 5/2 \u2014 314 (West 2002). Under section 2 \u2014 314, \u201c[a]n implied warranty of merchantability is created in a contract for the sale of goods, unless modified or excluded, \u2018if the seller is a merchant with respect to goods of that kind.\u2019 \u201d Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1149 (2001), quoting 810 ILCS 5/2 \u2014 314(1) (West 1992). \u201cTo be merchantable, goods \u2018must be at least such as *** are fit for the ordinary purposes for which such goods are used.\u2019 \u201d Lipinski, 325 Ill. App. 3d at 1149, quoting 810 ILCS 5/2 \u2014 314(2)(c) (West 1992). \u201cAn implied warranty of merchantability applies to the condition of the goods at the time of sale and is breached only if the defect in the goods existed when the goods left the seller\u2019s control.\u201d Lipinski, 325 Ill. App. 3d at 1150. \u201cIn order to prove a breach of an implied warranty of merchantability, plaintiff must prove that [the car] was defective and that the defect(s) existed when the car left defendant\u2019s control.\u201d Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 702-03 (2001).\n\u201cIn order for a plaintiff to file a claim for economic damages under the UCC for the breach of an implied warranty, he or she must be in vertical privity of contract with the seller.\u201d Mekertichian, 347 Ill. App. 3d at 832, citing Szajna v. General Motors Corp., 115 Ill. 2d 294, 311 (1986), and Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (1988). \u201cThis means that \u2018the UCC article II implied warranties give a buyer of goods a potential cause of action only against his immediate seller.\u2019 \u201d Mekertichian, 347 Ill. App. 3d at 832, quoting Rothe, 119 Ill. 2d at 292. Thus, under the UCC, plaintiff would only have a cause of action for breach of implied warranty of merchantability against McGrath Buick Nissan, the entity from which she purchased the car, and not against defendant.\nHowever, the supreme court has relaxed the privity requirement in cases where (1) the manufacturer extended a written warranty with the product and (2) a consumer subsequently brought an action against a manufacturer pursuant to the Act. Mekertichian, 347 Ill. App. 3d at 832, citing Szajna, 115 Ill. 2d at 315-16, and Rothe, 119 Ill. 2d at 294-95. In these 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.\u201d Mekertichian, 347 Ill. App. 3d at 832, following Szajna, 115 Ill. 2d at 315, and Rothe, 119 Ill. 2d at 294-95.\nWe recognize that federal courts have criticized and declined to follow this ruling articulated by the supreme court in Szajna and subsequently followed in Rothe. See, e.g., Kutzler v. Thor Industries, Inc., No. 03 C 2389 (N.D. Ill. July 14, 2003); Kowalke v. Bernard Chevrolet, Inc., No. 99 C 7980 (N.D. Ill. March 23, 2000). However, as noted in Mekertichian, pursuant to the doctrine of stare decisis, Illinois Supreme Court decisions regarding state privity requirements under the Magnuson-Moss Act are binding on all Illinois courts where the United States Supreme Court has not addressed the issue. Mekertichian, 347 Ill. App. 3d at 834-36. We do not undertake an independent review of the rulings in Szajna and Rothe, as the principle of stare decisis requires us to follow decisions rendered by the Illinois Supreme Court. Dekelaita v. Nissan Motor Corp. in U.S.A., 343 Ill. App. 3d 801, 815 (2003). We follow the ruling articulated in Szajna and followed in Rothe that, under the Act, the extension of a written warranty to the consumer by a warrantor establishes privity between the consumer and the warrantor which, although limited in nature, is sufficient to support an implied warranty under the UCC. Szajna, 115 Ill. 2d at 315-16; Rothe, 119 Ill. 2d at 294-95. Accordingly, because defendant provided a written warranty with the Dodge Neon, we deem it to be in vertical privity with plaintiff and thus reject defendant\u2019s argument that its status as the Neon\u2019s manufacturer rather than as plaintiffs seller precluded plaintiffs implied warranty claim.\nWe next address the issue of whether the statute of limitations barred plaintiff\u2019s claim for breach of implied warranty of merchantability against defendant. As previously noted, section 2 \u2014 725 of the UCC provides the statute of limitations governing breach of warranty claims under the Act and states in relevant part:\n\u201c(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. ***\n(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party\u2019s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made ***.\u201d (Emphasis added.) 810 ILCS 5/2 \u2014 725 (West 2000).\nPlaintiff and defendant agree that the statute of limitations on her implied warranty of merchantability claim began to run upon \u201ctender of delivery.\u201d They disagree, however, regarding which tender of delivery started the running of the statute of limitations on plaintiffs claim.\nPlaintiff contends that the four-year statute of limitations for breach of the implied warranty of merchantability on secondhand goods begins to run on the date the goods are delivered to the secondhand buyer. Thus, plaintiff argues, the statute began running when she received delivery of the Neon on June 20, 1998, and accordingly her May 2001 complaint was timely filed.\nDefendant contends that to the extent a purchaser of a secondhand car may assert an implied warranty of merchantability claim against the car\u2019s manufacturer, the statute of limitations begins to run, not upon the delivery of the car to the secondhand buyer, but upon the date the car is delivered to the consumer who originally bought it as new. Thus, defendant argues, the four-year statute of limitations on plaintiffs implied warranty of merchantability claim began running when the Neon was tendered to and put into service by its original buyer on June 24, 1996, and accordingly her May 2001 complaint was not timely filed.\nTo support her contention that the statute of limitations on her implied warranty claim began running on the date the car was delivered to her, plaintiff relies upon Lipinski. Plaintiffs reliance on Lipinski is misplaced.\nIn Lipinski, the plaintiff bought a used car and a service contract from a dealership. Lipinski, 325 Ill. App. 3d at 1142. Two years later, when the car was five years old, the plaintiff filed an action pursuant to the Act alleging breach of the implied warranty of merchantability against the dealership which sold him the car. Lipinski, 325 Ill. App. 3d at 1142-43. The dealership filed a motion to dismiss the implied warranty claim, contending that the statute of limitations for breach of implied warranty on secondhand goods starts to run from the date the goods are delivered as new, and that the plaintiffs claim, which was filed more than four years after the goods were delivered as new, was thus untimely. Lipinski, 325 Ill. App. 3d at 1143, 1149. The trial court granted the motion, and the plaintiff appealed. Lipinski, 325 Ill. App. 3d at 1143.\nThe appellate court reversed the trial court, holding that the plaintiffs right to bring an implied warranty of merchantability claim against the dealership accrued, pursuant to section 2 \u2014 725 of the UCC, when the dealership delivered the car to him. Lipinski, 325 Ill. App. 3d at 1151. In support of its holding, the court reasoned:\n\u201c[T]he purchaser of used goods should have the same protection as the purchaser of goods when new and be able to bring his case to the trier of fact for resolution within four years from the time of delivery. To deny a subsequent purchaser of a car the same four-year period of limitations accorded to the purchaser of the car when new would defeat the consumer protection purposes of both the Magnuson-Moss Act and the Uniform Commercial Code.\u201d Lipinski, 325 Ill. App. 3d at 1151.\nLipinski makes clear that the fact that a consumer buys a used good rather than a new one does not negate that consumer\u2019s right to bring an implied warranty of merchantability claim against his seller within four years. Indeed, in accordance with Lipinski, we recognize that plaintiffs right to bring an implied warranty of merchantability claim against her seller, McGrath Buick Nissan, accrued on the date McGrath delivered the Neon to her and that the statute of limitations on her claim thus began running on that date. In the instant case, however, plaintiff is seeking relief under an implied warranty of merchantability theory, not from her seller, but from the manufacturer of the Neon. The Lipinski court did not address when the statute of limitations begins running on such a claim.\nIn Cosman, this court did address when a breach of implied warranty of merchantability claim against a manufacturer accrued and found that the statute of limitations began running when the vehicle was delivered as new. Cosman, 285 Ill. App. 3d at 257 (dismissing plaintiffs implied warranty of merchantability claim against manufacturer). We recognize that the plaintiff in Cosman bought the vehicle new, rather than secondhand. We do not, however, believe that the court\u2019s decision in Cosman would have been any different had the vehicle been sold secondhand to the plaintiff in that case.\nIndeed, a review of what an implied warranty of merchantability actually promises and what a claimant must prove to establish a breach of such a warranty reflects that when the buyer of secondhand goods brings an implied warranty of merchantability claim against a manufacturer, \u201ctender of delivery\u201d refers to the delivery made to the consumer who originally bought those goods as new. \u201cUnder section 2 \u2014 725(2) of the [Code], an implied warranty of merchantability only applies to the condition of the goods at the time of sale \u2014 not to their future performance.\u201d Cosman, 285 Ill. App. 3d at 257; Lipinski, 325 Ill. App. 3d at 1150. A manufacturer breaches the implied warranty of merchantability only if a defect exists in the manufacturer\u2019s goods when they leave its control. See Alvarez, 321 Ill. App. 3d at 702-03. Thus, plaintiffs claim for breach of implied warranty of merchantability against defendant manufacturer implicates the condition of the car when it left defendant manufacturer\u2019s control, not the condition of the car when it left the seller\u2019s control.\nAlthough plaintiff did not enter into a contract with defendant to buy the Neon and did not actually accept delivery of it from defendant, she is deemed under Szajna to be in privity with defendant. Szajna, 115 Ill. 2d at 315. This \u201cprivity\u201d is based upon the written warranty that was provided by defendant and delivered to the first consumer who bought the car as new on June 24, 1996. Consistent with Szajna, we conclude that plaintiffs right to bring a breach of implied warranty action against defendant derives from and cannot exceed the original consumer\u2019s right to bring such an action.\nHere, the Neon was delivered to the first consumer who bought the car as new on June 24, 1996, and thus we conclude that the four-year statute of limitations on plaintiffs claim for breach of implied warranty of merchantability began to run on that date. Because plaintiff filed her action in May 2001, more than four years after that date, we find that count II of plaintiffs complaint was barred by the statute of limitations.\nPlaintiff argues that construing section 2 \u2014 725(2) of the UCC to mean that a cause of action for breach of implied warranty of merchantability against a manufacturer accrues on the date the secondhand goods are originally delivered as new \u201cwould lead to an absurd situation where the statute of limitations on plaintiffs claim would have accrued before plaintiff had any right to take judicial action.\u201d Plaintiffs argument is not persuasive. As noted above, plaintiff could have brought an implied warranty of merchantability claim under the Act against her seller (McGrath Buick Nissan), based upon the condition of the Neon when it left the seller\u2019s control, during the four years following its delivery to her. See Lipinski, 325 Ill. App. 3d at 1151. To prevail under such a claim, plaintiff would have been required to establish that a defect which rendered the Neon unfit existed at the time it left her seller\u2019s control. In contrast, plaintiffs right to bring an implied warranty of merchantability claim against defendant, a manufacturer, derives from the original consumer\u2019s right to bring such an action. To prevail under this claim, plaintiff, like the original consumer who bought the Neon as new, would be required to establish that the Neon was not fit for its ordinary purpose when it left the manufacturer\u2019s control and would have four years from the date the car was delivered to the original consumer to bring her action.\nIII. Revocation (Count III)\nCount III of plaintiffs complaint alleges the Neon was substantially impaired and seeks revocation of acceptance pursuant to section 2310(d) of the Magnuson-Moss Act (15 U.S.C. \u00a7 2310(d) (2000)). Plaintiff contends on appeal that the trial court should have recognized her claim for revocation because the Magnuson-Moss Act confers upon consumers the ability to recover equitable relief. In response, defendant asserts that revocation is not available against manufacturers. Our research has revealed no Illinois cases on this issue. However, the United States District Court for the Northern District of Illinois has addressed this topic several times.\nSection 2310(d)(1) of the Magnuson-Moss Act, upon which plaintiff\u2019s claim for revocation is based, 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).\nThe United States District Court for the Northern District of Illinois has found repeatedly that a plaintiff\u2019s request for revocation of acceptance under section 2310(d)(1) may be based on a manufacturer\u2019s failure to comply with either a written warranty or an implied warranty. See Hamdan v. Land Rover North America, Inc., No. 03 C 2051 (N.D. Ill. August 8, 2003); Larry J. Soldinger Associates, Ltd. v. Aston Martin Lagonda of North America, Inc., No. 97 C 7792 (N.D. Ill. September 13, 1999); Jones v. Fleetwood Motor Homes, 127 F. Supp. 2d 958, 962 (N.D. Ill. 2000) (hereinafter Jones II), citing Jones v. Fleetwood Motor Homes, No. 98 C 3061 (N.D. Ill. October 29, 1999) (hereinafter Jones I); See also Schimmer v. Jaguar Cars, Inc., No. 03 C 1884 (N.D. Ill. July 2, 2003) (\u201cIt is clear that the Magnuson-Moss Act provides for revocation of acceptance as a remedy against a warrantor-manufacturer\u201d), vacated on other grounds, 384 F.3d 402 (7th Cir. 2004).\nDefendant emphasizes that in Kutzler v. Thor Industries Inc., No. 03 C 2389 (N.D. Ill. July 14, 2003), the United States District Court for the Northern District of Illinois held that revocation of acceptance under section 2310(d) of the Magnuson-Moss Act is not an available remedy against nonselling manufacturers. See also Smith v. Monaco Coach Corp., 334 F. Supp. 2d 1065, 1070 (N.D. Ill. 2004) (agreeing with Kutzler that revocation is not available to consumer seeking relief against non-selling manufacturer). We are mindful of Kutzler and Smith, but elect to adopt the reasoning and holdings of Hamdan, Soldinger, Jones I, and Jones II instead.\nIn the context of this case, plaintiffs claim for revocation may be based on her claim of breach of written warranty. Revocation, i.e., return of the vehicle and a refund of the amounts paid, is a possible form of equitable relief should plaintiff succeed at trial on count I for breach of written warranty. Jones I, slip op. at_. While we conclude that the Magnuson-Moss Act permits plaintiff to seek revocation, we take no position as to whether revocation should actually be granted in the instant case since the appropriateness of such a remedy may not be determined prior to the presentation of evidence at trial. See Jones II, 127 F. Supp. 2d at 967 (enforcement of the right to a refund under the Act is an equitable remedy which requires consumer to show substantial impairment of the product\u2019s value and that no adequate remedy at law exists). Accordingly, summary judgment should not have been granted to defendant on count III.\nCONCLUSION\nFor the reasons previously discussed, we reverse the trial court\u2019s entry of summary judgment on counts I and III, we affirm its entry of summary judgment on count II, and we remand this case for further proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nGALLAGHER, P.J., and TULLY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Krohn & Moss, Ltd., of Chicago (Scott M. Cohen, of counsel), for appellant.", "Sanchez, Daniels & Hoffman, LLP of Chicago (Timothy V. Hoffman, Neal B. McQueeney, and Heather D. Erickson, of counsel), for appellee." ], "corrections": "", "head_matter": "LUCY MYDLACH, Plaintiff-Appellant, v. DaimlerChrysler Corporation, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201403\u20141402\nOpinion filed September 30, 2005.\nModified on denial of rehearing March 31, 2006.\nKrohn & Moss, Ltd., of Chicago (Scott M. Cohen, of counsel), for appellant.\nSanchez, Daniels & Hoffman, LLP of Chicago (Timothy V. Hoffman, Neal B. McQueeney, and Heather D. Erickson, of counsel), for appellee." }, "file_name": "0135-01", "first_page_order": 151, "last_page_order": 175 }