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Mitsch v. General Motors Corp.

Case Date: 07/20/2005
Court: 1st District Appellate
Docket No: 1-04-3228 Rel

THIRD DIVISION
July 20, 2005



No. 1-04-3228

AMY and JOSEPH MITSCH,

                          Plaintiffs-Appellants,

               v.

GENERAL MOTORS CORPORATION
and ROCKENBACH CHEVROLET,

                          Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
Cook County.




Honorable
Gregory J. Wojkowski,
Judge Presiding.

 

JUSTICE SOUTH delivered the opinion of the court:

Plaintiffs, Amy and Joseph Mitsch, appeal from an order of the circuit court of Cook County granting defendants', General Motors Corporation (GMC) and Rockenbach Chevrolet (Rockenbach), motion for summary judgment. Plaintiffs contest the trial court's order as to Rockenbach only and not as to GMC.

The relevant facts are as follows: On October 7, 2002, plaintiffs purchased a used 2002 GMC Yukon (Yukon) which was manufactured by GMC and sold by Rockenbach, an authorized GMC dealership. At the time of the purchase, the Yukon had been driven over 36,000 miles. Prior to taking possession of the vehicle, plaintiffs also purchased GMC's extended service plan. Rockenbach accepted payment from plaintiffs for this extended service plan.

The purchase contract for the Yukon contained the following disclaimer:

" 'AS IS'

THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY EITHER EXPRESSED OR IMPLIED. THE PURCHASER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE." (Emphasis in original.)

Plaintiff Joseph Mitsch signed his name directly below this provision and at the bottom of the purchase agreement.

During a period of approximately 18 months after plaintiffs took possession of the Yukon, they experienced various problems with the vehicle. They took the Yukon to Rockenbach once for repairs and to another authorized GMC dealership on several other occasions for service. These dealerships were allegedly unable to repair the vehicle's defects, which included problems with the suspension, climate control, engine and transmission. All of the repairs performed by the dealerships on the Yukon were covered under the terms of the GMC service contract. Due to the frequency of the repairs, plaintiffs lost confidence in the safety and reliability of the Yukon which impaired its value to them. Consequently, they sought to revoke acceptance of the vehicle in writing under the Magnusson-Moss Warranty-Federal Trade Commission Improvement Act (Warranty Act) (15 U.S.C.