{ "id": 4266297, "name": "WILLIAM L. WHITE et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee", "name_abbreviation": "White v. Daimlerchrysler Corp.", "decision_date": "2006-09-26", "docket_number": "No. 1\u201404\u20142945", "first_page": "278", "last_page": "288", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 278" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "15 U.S.C. \u00a72301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "720 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "plaintiff alleged defendant had a practice of selling used batteries, but did not allege he actually received one of the used batteries" } ], "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 633", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261377 ], "year": 1999, "pin_cites": [ { "page": "644", "parenthetical": "plaintiff alleged defendant had a practice of selling used batteries, but did not allege he actually received one of the used batteries" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0633-01" ] }, { "cite": "773 N.E.2d 1199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "plaintiff failed to meet burden of showing present injury for breach of warranty claim where evidence showed she sold the car for fair market value" } ], "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034035 ], "year": 2002, "pin_cites": [ { "page": "973", "parenthetical": "plaintiff failed to meet burden of showing present injury for breach of warranty claim where evidence showed she sold the car for fair market value" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0969-01" ] }, { "cite": "697 N.E.2d 868", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 1099", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910265 ], "year": 1998, "pin_cites": [ { "page": "1108-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/1099-01" ] }, { "cite": "842 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "363 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765044 ], "year": 2005, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0365-01" ] }, { "cite": "536 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498389 ], "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0293-01" ] }, { "cite": "578 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "the absence of an allegation of how one would have acted differently may suggest a lack of materiality" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 12", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498143 ], "year": 1991, "pin_cites": [ { "page": "19", "parenthetical": "the absence of an allegation of how one would have acted differently may suggest a lack of materiality" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0012-01" ] }, { "cite": "602 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783144 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "902" }, { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0891-01" ] }, { "cite": "762 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281414 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "658" }, { "page": "658" }, { "page": "658" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0642-01" ] }, { "cite": "835 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "plaintiffs alleged defendant failed to disclose categorical inferiority of \"non-OEM\" parts; plaintiffs did not allege parts were defective, an omission that led to the defeat of their claim" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828029 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "192-95", "parenthetical": "plaintiffs alleged defendant failed to disclose categorical inferiority of \"non-OEM\" parts; plaintiffs did not allege parts were defective, an omission that led to the defeat of their claim" }, { "page": "196-97", "parenthetical": "no showing of actual damage in a consumer fraud claim where plaintiffs testimony established he sold the car for its fair market value despite the presence of \"non-OEM\" parts" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0100-01" ] }, { "cite": "293 N.E.2d 375", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "in warranty case, manufacturer is under no obligation to furnish a machine that does not wear out" } ], "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2847286 ], "year": 1973, "pin_cites": [ { "page": "918", "parenthetical": "in warranty case, manufacturer is under no obligation to furnish a machine that does not wear out" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0906-01" ] }, { "cite": "759 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570734 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "1143" }, { "page": "1143" }, { "page": "1143" }, { "page": "1145" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1139-01" ] }, { "cite": "684 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725130 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "62-63" }, { "page": "68" }, { "page": "68" }, { "page": "69" }, { "page": "69" }, { "page": "69" }, { "page": "62-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0059-01" ] }, { "cite": "844 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "363 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766037 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "799" }, { "page": "801", "parenthetical": "plaintiffs contended a specific defect in the windows caused them to leak and deteriorate" }, { "page": "802" }, { "page": "802" }, { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0795-01" ] }, { "cite": "675 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 11, "year": 1996, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "504" }, { "page": "501" }, { "page": "504" }, { "page": "489" }, { "page": "494" }, { "page": "505" }, { "page": "505" }, { "page": "505" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "641 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "161 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783173 ], "year": 1994, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0374-01" ] }, { "cite": "566 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236685 ], "year": 1991, "pin_cites": [ { "page": "46-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0042-01" ] }, { "cite": "736 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096600 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "584" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0581-01" ] }, { "cite": "637 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680608 ], "year": 1994, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0514-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 23443, "ocr_confidence": 0.763, "pagerank": { "raw": 1.741546594710514e-07, "percentile": 0.7071060899689519 }, "sha256": "16e6c5c85ce62b708e77294a3126b3dd9c98b41959a1dab116cf92729a72d477", "simhash": "1:eb3f46d53b699e2d", "word_count": 3828 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM L. WHITE et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nPlaintiff William L. White filed suit under the Illinois Consumer Fraud and Deceptive Business Practices Act (the Act) (815 ILCS 505/1 et seq. (West 2000)), contending defendant DaimlerChrysler Corporation knowingly concealed a material defect in his Jeep vehicle and in the vehicles of similarly situated class members. He alleged exhaust manifolds installed in the vehicles failed at \u201cunacceptably high rates.\u201d\nDefendant filed a motion to dismiss the complaint pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 2000). Defendant contended: (1) plaintiff failed to allege facts establishing a duty on the part of defendant; (2) plaintiff lacked standing to bring his consumer fraud claim, to represent the class, and to request declaratory relief; (3) plaintiffs claims were barred by the statute of limitations; and (4) plaintiffs consumer fraud claim lacked the requisite specificity for a claim under the Act.\nThe trial court granted defendant\u2019s motion to dismiss. Plaintiff appeals dismissal of the Consumer Fraud Act claims, but not the claims for violation of the Magnuson-Moss Act and for declaratory relief. We affirm the trial court.\nFACTS\nIn his amended complaint, plaintiff alleges, \u201con information and belief,\u201d he purchased his Jeep vehicle from Tyson Motor Corporation in July 1996. He contends the exhaust manifold in his Jeep was substandard and defective and remains so to this day. In paragraph 4 of the complaint, under the heading, \u201cParties to the Action,\u201d he says the \u201cvalue of WILLIAM L. WHITE\u2019S Jeep is diminished by the defective exhaust manifold under its hood, and WILLIAM L. WHITE has been injured by that diminution in value.\u201d He says he was unaware of the substandard and defective nature of the exhaust manifold until shortly before his action was filed on November 17, 2003.\nPlaintiff contends the \u201cstandard in the industry\u201d for vehicles such as Jeeps is to use cast-iron exhaust manifolds. From 1991 until early 1999, defendant began using less expensive tubular steel exhaust manifolds instead of the cast-iron exhaust manifolds. Plaintiff specifically contends:\n\u201c9. *** Exhaust manifolds in vehicles such as Jeeps generally do and are expected to last the lifetime of the vehicle, and consumers thus generally do not need to pay for repair or replacement of exhaust manifolds at any time during the life of their vehicles.\n11. As early as 1991, Defendant knew that its cheaper, substandard tubular steel exhaust manifolds were prone to cracking and failure. However, rather than disclosing this information to consumers or changing its design, Defendant continued to install the crack-prone tubular steel exhaust manifolds and concealed these facts from the public, thereby reaping excessive profits to the detriment of Plaintiff and the Class both by reducing the cost of goods sold (and thus increasing profits, gaining market share, and earning a higher profit margin on each VEHICLE sold) and by profiting from the sale of replacement exhaust manifolds.\n12. The cracks in the VEHICLES\u2019 tubular steel exhaust manifolds result from thermal cyclic metal fatigue, whereby the pipes, which are made of tubular steel, are stressed beyond their elasticity as the manifold expands and contracts due to exhaust gas temperature changes during normal vehicle operation. A properly designed and engineered cast iron exhaust manifold would not fail as aforesaid.\n13. *** [I]t usually costs between $800 and $1,600 to replace the cracked tubular steel exhaust manifolds in these VEHICLES, of which approximately $500 is the cost of the replacement part paid to Defendants.\n14. Defendant knew as early as 1991 that the tubular steel exhaust manifolds: (a) would not last as long as the conventional cast iron exhaust manifolds; and (b) would fail at unacceptably high rates. Defendant has intentionally concealed these facts from Plaintiff and the Class and continues to do so to this day in order to sell replacement parts and increase profits. Because defendant has omitted and concealed material facts about the exhaust manifolds, members of the public were likely to have been deceived about the quality, performance, and durability of those manifolds.\n34. As a result of Defendant\u2019s unlawful act or practice, Plaintiff has been injured in an amount to be proven at trial, and Defendant must be ordered to reimburse this amount to Plaintiff and be further enjoined from continuing to refuse to pay for the cost of repair or replacement of cracked exhaust manifolds.\u201d\nNowhere in the complaint does plaintiff contend the exhaust manifold in his Jeep has failed, nor has he had to pay to repair or replace the exhaust manifold.\nThe trial court granted defendant\u2019s motion to dismiss plaintiffs amended complaint. The record does not contain a transcript of the hearing on the motion to dismiss.\nDECISION\nInitially, defendant contends plaintiff has waived review of the trial court\u2019s dismissal because the court granted its motion to dismiss \u201cin all respects,\u201d and plaintiff\u2019s brief fails to address each of defendant\u2019s bases for dismissal. See 188 Ill. 2d R 341(e)(7) (\u201cPoints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing\u201d). We disagree. Plaintiff addresses the issues of duty, damages, and the statute of limitations and discusses the general pleading requirements under the Act. Plaintiff\u2019s discussion of damages addresses the gist of defendant\u2019s standing arguments.\nGiven the absence of a hearing transcript, we cannot be certain which factors the trial court considered when it dismissed plaintiffs complaint. The court apparently agreed with all of the defendant\u2019s contentions since it granted the motion to dismiss \u201cin all respects.\u201d We do not find plaintiff waived review of any of the issues addressed by the defendant in its motion. That said, we may affirm the trial court\u2019s order on any basis appearing in the record. Cronin v. McCarthy, 264 Ill. App. 3d 514, 529, 637 N.E.2d 668 (1994).\nA section 2 \u2014 615 motion to dismiss admits all well-pleaded facts and attacks the legal sufficiency of the complaint; a motion to dismiss under section 2 \u2014 619 admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative matter that acts to defeat the plaintiffs claim. Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d 1174 (2000). In reviewing a section 2\u2014615 motion, we take as true all well-pleaded facts in the complaint and any reasonable inferences that may be drawn from them. Ziemba v. Mierzwa, 142 Ill. 2d 42, 46-47, 566 N.E.2d 1365 (1991). However, we will disregard mere conclusions of law or fact not supported by specific factual allegations. Doe v. Calumet City, 161 Ill. 2d 374, 385, 641 N.E.2d 498 (1994). Our review of the trial court\u2019s dismissal under either section 2\u2014615 or 2\u2014619 is de novo. Neppl, 316 Ill. App. 3d at 583.\nCONSUMER FRAUD ACT REQUIREMENTS\nThe Act declares unlawful:\n\u201c[ujnfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the \u2018Uniform Deceptive Trade Practices Act,\u2019 approved August 5, 1965, in the conduct of any trade or commerce *** whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.\u201d 815 ILCS 505/2 (West 2000).\nTo state a claim under the Act, a complaint must set forth specific facts showing: (1) a deceptive act or practice by the defendant; (2) the defendant\u2019s intent that the plaintiff rely on the deception; (3) the deception occurred in the course of trade or commerce; and (4) the consumer fraud proximately caused the plaintiffs injury. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501, 675 N.E.2d 584 (1996). To bring a civil suit for damages, the Act requires that the plaintiff suffer \u201cactual damages.\u201d 815 ILCS 505/10a(a) (West 2000). Plaintiffs reliance is not an element of statutory consumer fraud. Connick, 174 Ill. 2d at 501.\nAn omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Pappas v. Pella Corp., 363 Ill. App. 3d 795, 799, 844 N.E.2d 995 (2006), citing Connick, 174 Ill. 2d at 504. A complaint alleging a consumer fraud violation must be pled with the same particularity and specificity as that required under common law fraud. Connick, 174 Ill. 2d at 501.\nNeither party disputes that the sale of plaintiffs Jeep took place in the conduct of trade or commerce. In determining whether plaintiffs complaint states a claim for an omission of a material fact, it is helpful to review similar cases where the courts held the complaints adequately pled a consumer fraud violation.\nIn Connick, the plaintiffs alleged the Suzuki Samurai vehicles they purchased were unsafe due to their excessive rollover risk. Connick, 174 Ill. App. 3d at 487-88. Plaintiffs contended Suzuki fraudulently concealed material facts by failing to inform consumers of the Samurai\u2019s rollover tendency, then selling the Samurai without disclosing the safety risks. Connick, 174 Ill. 2d at 504. Plaintiffs did not allege they had ever suffered a rollover accident in a Samurai. Rather, they sought compensation for the diminution in the vehicles\u2019 resale value due to the perceived safety risk. Connick, 174 Ill. 2d at 489. Plaintiffs\u2019 complaint alleged Suzuki received notice of the Samurai\u2019s safety problems through information received from newspapers, magazines, and various third parties. Connick, 174 Ill. 2d at 494.\nThe court held plaintiffs adequately pled a consumer fraud violation based on a material omission by Suzuki:\n\u201cPlaintiffs alleged that Suzuki was aware of the Samurai\u2019s safety problems, including its tendency to roll over and its inadequate protection for passengers. Plaintiffs further alleged that Suzuki failed to disclose these defects. Finally, plaintiffs alleged that the safety problems of the Samurai were a material fact in that they would not have purchased the vehicles if Suzuki had disclosed the Samurai\u2019s safety risk.\u201d Connick, 174 Ill. 2d at 505.\nIn Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 684 N.E.2d 859 (1997), the plaintiffs alleged defendants knowingly concealed defects in their Audi vehicles that caused \u201cunintended acceleration.\u201d As a result of the defects, plaintiffs claimed their vehicles had lost their resale value. Plaintiffs claimed damages in the amount of the full cost of their vehicles or, should defendants remedy the problem, in the amount of the diminution of the resale value. Perona, 292 Ill. App. 3d at 62-63.\nThe court held plaintiffs adequately alleged a consumer fraud violation based on a material omission by Audi. Perona, 292 Ill. App. 3d at 68. First, plaintiffs alleged Audi was aware of the Audi 5000\u2019s safety problems. Attached to the complaint were two press releases by Audi acknowledging the existence of excessive unintended accelerations of the Audi 5000. Perona, 292 Ill. App. 3d at 68. Second, plaintiffs alleged Audi failed to disclose these defects. Perona, 292 Ill. App. 3d at 69. Finally, plaintiffs alleged the unintended acceleration was a material fact in that they would not have purchased their vehicles if Audi had previously disclosed the safety risk. Perona, 292 Ill. App. 3d at 69.\nIn Lipinski v. Martin J. Kelley Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1143, 759 N.E.2d 66 (2001), the plaintiff alleged his car was defective because it had an excess risk of oil migration into the PVC system, resulting in excessive oil consumption and severe damage to the engine from insufficient oil. Plaintiff alleged the engine in his car failed as a result of the defect. Plaintiff alleged defendants knew of the car\u2019s \u201ctendency for excessive oil consumption\u201d no later than January 30, 1997, when GM issued a technical bulletin to its dealers, yet they failed to disclose the defect. Lipinski, 325 Ill. App. 3d at 1143. The defendants knew of the defect when they sold the car to the plaintiff in April 1997. Plaintiff said he would not have purchased the car had he known of the tendency. He alleged he suffered damages for the cost of replacing the engine and for the diminution in the value of the car. Lipinski, 325 Ill. App. 3d at 1143. The court held the allegations were sufficient to state a claim under the Act. Lipinski, 325 Ill. App. 3d at 1145.\nIn light of the above cases, we now examine the allegations in plaintiffs complaint to determine whether they meet the Act\u2019s requirements for a concealment or omission claim.\nA. KNOWLEDGE/DUTY\nDefendant contends plaintiffs claim fails because the facts pleaded were legally insufficient to support the existence of any duty on the part of defendant. Defendant says plaintiffs complaint would impose a duty on manufacturers to use only \u201cindestructible\u201d parts, or to identify to consumers any part that might fail, even if the failure would not occur for many years. See Weiss v. Rockwell Manufacturing Co., 9 Ill. App. 3d 906, 918, 293 N.E.2d 375 (1973) (in warranty case, manufacturer is under no obligation to furnish a machine that does not wear out); Abraham v. Volkswagen of America, Inc., 795 E2d 238, 250 (2d Cir. 1986) (a rule making failure of a part actionable based on manufacturer\u2019s knowledge of the effective life of the part would render meaningless time/mileage limitations in warranty coverage).\nDefendant misapprehends the allegations in plaintiffs complaint and reads into the Act a duty requirement that does not exist. Plaintiff does not contend defendant was obligated to manufacture a machine that does not wear out or to disclose the effective life of every part in the vehicle. Rather, he contends defendant installed defective exhaust manifolds in Jeep vehicles from 1991 until 1999, knew the parts were defective, and failed to disclose the existence of the defective parts. See Pappas, 363 Ill. App. 3d at 801 (plaintiffs contended a specific defect in the windows caused them to leak and deteriorate); cf. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 192-95, 835 N.E.2d 801 (2005) (plaintiffs alleged defendant failed to disclose categorical inferiority of \u201cnon-OEM\u201d parts; plaintiffs did not allege parts were defective, an omission that led to the defeat of their claim).\nMoreover, the Act does not require a plaintiff to plead the existence of a common law duty. \u201c[I]t is unnecessary to plead a common law duty to disclose in' order to state a valid claim of consumer fraud based on an omission or concealment.\u201d Connick, 174 Ill. 2d at 505. The Act indicates, however, that sellers have a duty not to conceal or suppress known material facts regarding products from potential buyers. Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d 642, 658, 762 N.E.2d 1 (2001); Totz v. Continental Du Page Acura, 236 Ill. App. 3d 891, 902, 602 N.E.2d 1374 (1992).\n\u201cUnder this interpretation, plaintiffs must establish that the fact concealed was known to the seller at the time of concealment. Unlike an action for misrepresentation under the Act, where even innocent misrepresentations can support liability, an action for fraudulent concealment logically demands that defendants have prior knowledge of the information that they are alleged to have suppressed.\u201d Miller, 326 Ill. App. 3d at 658.\nPlaintiff pleads that, \u201cas early as 1991,\u201d defendant knew the tubular steel exhaust manifolds would not last as long as the conventional cast-iron manifolds, and would fail at \u201cunacceptably high rates.\u201d Unlike the plaintiffs in Connick, Perona, and Lipinski, plaintiff does not specify how defendant knew this information. For purposes of the Act, it is important that the defendant be aware of the existence of the material fact before the time of the sale to the plaintiff. Otherwise, an omission of a material fact cannot be the proximate cause of the plaintiffs damages. See Perona, 292 Ill. App. 3d at 69.\nNor does plaintiff specifically allege the defendant intended for the plaintiff to rely on its concealment or omission, a requirement for a consumer fraud claim. See Miller, 326 Ill. App. 3d- at 658. However, circumstantial evidence may be used to establish the seller\u2019s intent. Totz, 236 Ill. App. 3d at 903. We may infer from plaintiffs allegation that the defendant \u201cintentionally concealed these facts from Plaintiff and the Class and continues to do so to this day in order to sell replacement parts and increase profits\u201d that defendant intended for plaintiff to rely on its concealment.\nB. MATERIAL FACT\nNeither \u201cdefect\u201d nor \u201cunreasonably dangerous\u201d is a necessary element of a Consumer Fraud Act claim. Pappas, 363 Ill. App. 3d at 802. For a claim based on an omission, plaintiffs are required only to allege an omission of a \u201cmaterial fact\u201d in the course of trade or commerce. Pappas, 363 Ill. App. 3d at 802.\n\u201cA material fact exists where a buyer would have acted differently knowing the information, or if it concerned the type of information upon which a buyer would be expected to rely in making a decision whether to purchase.\u201d Connick, 174 Ill. 2d at 505.\nIn his briefs, plaintiff contends the material fact that defendant failed to disclose is the fact that the exhaust manifolds had an \u201cexceptionally high failure rate.\u201d He says, \u201cit is the failure rate, rather than either the component material of the exhaust manifold or the design change, that is material to the transaction.\u201d According to the complaint, this fact is material to consumers because the \u201ccracking and failure of the tubular steel exhaust manifolds would cost consumers hundreds and sometimes thousands of dollars apiece.\u201d\nNowhere in the complaint does plaintiff say he would have acted differently if he had possessed the information before the sale, nor does he say how or why consumers would be expected to rely on that information before making a purchase. See Butitta v. First Mortgage Corp., 218 Ill. App. 3d 12, 19, 578 N.E.2d 116 (1991) (the absence of an allegation of how one would have acted differently may suggest a lack of materiality).\nMore importantly, we believe the allegations in the complaint describing the alleged defect fall short of the specificity required by the Act. Plaintiff alleges defendant knew the tubular steel exhaust manifolds were \u201cprone to cracking and failure,\u201d \u201cwould fail at unacceptably high rates,\u201d and that defendant was aware of a \u201chigh frequency of failures.\u201d Plaintiff does not define these general phrases or provide more detail about the number of failures that occurred, how the defendant knew about the failures, or what defendant knew at the time of the sale to plaintiff. The complaint is laden with conclusion and conjecture.\nAlthough, at least in a common law fraud case, the materiality of a misrepresentation is a question of fact to be determined by the trier of fact (Thompson v. IFA, Inc., 181 Ill. App. 3d 293, 299, 536 N.E.2d 969 (1989)), plaintiff still must allege with sufficient particularity the facts that make the defendant\u2019s omission or concealment material. He has not done that.\nC. DAMAGES\nIn paragraph 4 of his complaint, plaintiff pleads the value of his Jeep is diminished by the defective exhaust manifold under its hood, and he has been injured by the diminution in value. The Act provides remedies for omissions resulting in purely economic injury. Pappas, 363 Ill. App. 3d at 802. But plaintiff fails to specify how the value of his vehicle has been diminished. Plaintiff never says the alleged defect has had any impact on his Jeep\u2019s \u201cresale value.\u201d He never says he would have done anything differently, like bargain for a lower price or refuse to buy the vehicle, if he had known about exhaust manifold failures. Plaintiff has never paid for a repair to the exhaust manifold in his vehicle and has not sold the vehicle at some diminished value. We note that in Connick, Perona, and Lipinski the courts observed plaintiffs had alleged they would not have bought the vehicle had they known of the defect. Because of his failure to be specific about the diminution of value, we do not believe he has adequately pled actual damages.\nTrue, diminution in resale value has been held to be a legally cognizable injury under the Act, even where the plaintiffs product has not yet failed. See Miller, 326 Ill. App. 3d at 653; Connick, 174 Ill. 2d at 489; Perona, 292 Ill. App. 3d at 62-63; Dewan v. Ford Motor Co., 363 Ill. App. 3d 365, 369, 842 N.E.2d 756 (2005); Schiffner v. Motorola, Inc., 297 Ill. App. 3d 1099, 1108-09, 697 N.E.2d 868 (1998).\nFailure to allege actual damages proximately caused by the alleged defect has proved fatal for plaintiffs\u2019 complaints in other cases. See Avery, 216 Ill. 2d at 196-97 (no showing of actual damage in a consumer fraud claim where plaintiffs testimony established he sold the car for its fair market value despite the presence of \u201cnon-OEM\u201d parts); Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d 969, 973, 773 N.E.2d 1199 (2002) (plaintiff failed to meet burden of showing present injury for breach of warranty claim where evidence showed she sold the car for fair market value); Kelly v. Sears Roebuck & Co., 308 Ill. App. 3d 633, 644, 720 N.E.2d 683 (1999) (plaintiff alleged defendant had a practice of selling used batteries, but did not allege he actually received one of the used batteries).\nThis complaint falls short of alleging actual damages.\nCONCLUSION\nFor the reasons we have set out, we find the trial court\u2019s dismissal of plaintiffs complaint was appropriate. Our agreement with the trial court obviates any reason to discuss other issues that might have been raised in this appeal, such as standing to represent the class, the right to declaratory relief, and applicability of the statute of limitations. We affirm the trial court\u2019s dismissal of plaintiffs complaint.\nAffirmed.\nHOFFMAN and SOUTH, JJ., concur.\nPlaintiff alleged an additional claim under the Magnuson-Moss Warranty \u2014 Federal Trade Commission Improvement Act (15 U.S.C. \u00a72301 et seq. (1976)). Plaintiff does not appeal the trial court\u2019s ruling with respect to his Magnuson-Moss claim. Plaintiff Samuel J. Riolo is not a party to this appeal.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" } ], "attorneys": [ "Marvin A. Miller, Nyran Rose Pearson, and Dom J. Rizzi, all of Miller Faucher & Cafferty, LLP, of Chicago, William R. Kane, of Miller Faucher & Cafferty, LLI) of Philadelphia, Pennsylvania, and Clyde C. Greco, Jr., Philip M. McKenney, and Bay Baniadam, all of Greco Traficante & Edwards, of San Diego, California, for appellants.", "Kathy A. Wisniewski and John W. Rogers, both of Bryan Cave, LLR of St. Louis, Missouri, and Todd A. Rowden, of Law Offices of Todd A. Rowden, LLC, of Schaumburg, for appellee." ], "corrections": "", "head_matter": "WILLIAM L. WHITE et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201404\u20142945\nOpinion filed September 26, 2006.\nMarvin A. Miller, Nyran Rose Pearson, and Dom J. Rizzi, all of Miller Faucher & Cafferty, LLP, of Chicago, William R. Kane, of Miller Faucher & Cafferty, LLI) of Philadelphia, Pennsylvania, and Clyde C. Greco, Jr., Philip M. McKenney, and Bay Baniadam, all of Greco Traficante & Edwards, of San Diego, California, for appellants.\nKathy A. Wisniewski and John W. Rogers, both of Bryan Cave, LLR of St. Louis, Missouri, and Todd A. Rowden, of Law Offices of Todd A. Rowden, LLC, of Schaumburg, for appellee." }, "file_name": "0278-01", "first_page_order": 296, "last_page_order": 306 }