Rose v. Mercede-Benz U.S.A., LLC

FIFTH DIVISION
December 28, 2007
Nos. 1-06-0262, 1-06-1266 (consolidated)
FELICE BRESSLER ROSE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
MERCEDES-BENZ U.S.A., LLC, ) Honorable
) Susan McDunn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff Felice Bressler Rose brought an action under the Magnuson-Moss Warranty-
Federal Trade Commission Improvement Act (the Magnuson-Moss Act) (15 U.S.C. §2301 et seq.
(2000)) for breach of express and implied warranties against defendant Mercedes-Benz after
several unsuccessful attempts to repair her 2002 Mercedes ML 500. Following a bench trial, the
trial court entered judgment for plaintiff and awarded her $8,000 in damages.
Defendant now appeals the damage award and the award of attorney fees and costs to
plaintiff. Defendant raises three main contentions pertaining to the damage award: (1) plaintiff
suffered no damages for breach of warranty because her vehicle was repaired at no cost to her and
plaintiff received full market value for the vehicle at trade-in; (2) plaintiff failed to lay an adequate
foundation for her valuation testimony of the ML 500 in its defective state; and (3) no basis exists
Nos. 1-06-0262 and 1-06-1266 (consolidated)
for the $8,000 damage award. Because we agree with defendant on the second point, we reverse
the judgment of the trial court.
BACKGROUND
In January 2002, plaintiff bought a 2002 Mercedes ML 500 sport utility vehicle from the
Autohaus on Edens, a Mercedes-Benz dealership, for $47,000. The vehicle was covered by a 4-
year/50,000-mile written limited warranty.
The following testimony is relevant to the issues presented in this appeal. Between
January 2002 and July 2005, plaintiff experienced numerous problems with the ML 500 and
brought the vehicle to defendant’s dealerships for repair approximately 19 times, including 9 visits
to inspect and repair the braking system. Plaintiff offered detailed testimony about the problems
she experienced with the vehicle. Some repairs took more than one day to complete, and, by
plaintiff’s estimation, the dealerships provided her with a replacement vehicle about 80 % of the
time.
Defendant does not dispute that the various defects were not repaired in a reasonable time
or a reasonable number of attempts. On February 2, 2004, plaintiff filed a two-count complaint
against defendant seeking to revoke her acceptance of the vehicle under the Magnuson-Moss Act
and seeking damages for breach of express written warranty and the implied warranty of
merchantability. In July 2005, plaintiff traded in the ML 500, which she had driven 25,254 miles,
toward the purchase of a 2005 Lexus RX 330 sport utility vehicle at McGrath Lexus. Plaintiff
received a trade-in allowance of $24,400 for the ML 500.
2
Nos. 1-06-0262 and 1-06-1266 (consolidated)
The sole evidence of the vehicle’s diminished value was plaintiff’s lay opinion testimony,
over the defense’s objection, as to how much the ML 500 was worth when she bought it:
“If I would have known I had to go what I’ve gone through for this Court, I have
explained it, I would not have paid anything for this car. But I recognize that I
have had the ability to drive the car for very basic purposes, and I think that that
adds some value to the car.”
Plaintiff was asked her opinion of the value of the ML 500 “when she bought it, on the
date that [she] bought it, knowing what you know now.” The following colloquy occurred:
“A. I would not pay more than half price. I would not pay more than what
I traded my other Mercedes for.
Q. Now, you say you would not pay more than half. Does that give you
an opinion as to what you believe it was worth? What is your opinion as to what it
was worth?
A. Probably about $25,000. I’m just pulling you a number out of my head.
About 50 percent of what I paid.”
The defense objected that plaintiff’s testimony was speculative and lacking in foundation.
Plaintiff then stated:
“That’s not how I meant it. I meant it what 50 percent was [sic] of what I paid. I
don’t remember the exact number that I paid for that.”
The trial court heard the parties’ arguments as to the defense objection, and the court
allowed plaintiff’s counsel to ask “clarifying questions” about plaintiff’s testimony:
3
Nos. 1-06-0262 and 1-06-1266 (consolidated)
“Q. Mrs. Rose, when you said $25,000 what is it that you meant by that?”
A. 50 percent of what I paid.
Q. Okay. You paid $47,000; is that correct?
A. Correct.
Q. Doing the math, then, is your opinion that the vehicle was worth
$23,500?
A. If that’s 50 percent, yes.”
When asked the basis for that opinion, plaintiff described her trade-in of a Mercedes for
$29,000 when she bought the ML 500. Plaintiff stated that she drove the first Mercedes for 3½
years and it had more miles on it than the ML 500 did at trade-in. Plaintiff testified that her
opinions were based on “the research I’ve done, the salespeople I talked to, and everything I did
to become an educated consumer.” Over continued defense objections, the court stated that it
accepted plaintiff’s testimony as a lay opinion, ruling that the defense arguments would “go
towards [the] weight” to be given that testimony.
The defense presented, among other evidence, the testimony of Frank Tabachka, formerly
a salesperson and manager at McGrath Lexus. Tabachka’s duties included appraising the value of
automobiles, and he appraised plaintiff’s ML 500 at trade-in. The wholesale value of the ML 500
was $25,000, and the dealership gave a $24,400 trade-in allowance toward the Lexus. Tabachka
testified that $24,400 was the fair market value of the ML 500. Over plaintiff’s objection,
Tabachka testified that the $25,000 appraisal for the ML 500 was not based on the vehicle’s
service history or mechanical condition.
4
Nos. 1-06-0262 and 1-06-1266 (consolidated)
At the close of evidence, the trial court concluded that defendant breached its express and
implied warranties to plaintiff. The court awarded plaintiff “diminished value damages” of
$8,000. The court accepted plaintiff’s lay opinion testimony, finding that it met the foundational
factors set out in Kim v. Mercedes-Benz U.S.A., Inc., 353 Ill. App. 3d 444, 818 N.E.2d 713
(2004). The court noted plaintiff’s testimony that she researched the vehicle and applied that
research to her valuation of the car on the date it was purchased, compared to the value of the car
had it been as warranted. The court stated that it did not award damages to plaintiff for loss of
use, aggravation or inconvenience, but rather, in arriving at the damage award, the court
considered the mileage accumulated on the car and the benefit of the repairs that were performed.
On December 21, 2005, the trial court entered judgment for plaintiff for breach of express
and implied warranties, and the court awarded plaintiff $8,000 in damages. On March 29, 2006,
the court granted plaintiff’s claim for attorney fees and costs in the amount of $31,565.65.
ANALYSIS
On appeal, defendant contends that plaintiff sustained no damages because she did not pay
for any repairs and she received the full market value for the vehicle when she traded it in.
Defendant also argues that plaintiff failed to establish an adequate foundation for her opinion
testimony as to the value of the ML 500 when she purchased it in its allegedly defective state. We
consider each of those arguments in turn.
5
Nos. 1-06-0262 and 1-06-1266 (consolidated)
I. Existence of Recoverable Damages
Defendant asserts that plaintiff is only entitled to recover damages that she sustained, and
because the ML 500 was repaired at no cost to plaintiff and she received what was testified to as
the “full fair market value” when she traded in the vehicle, she suffered no damages. We address
this issue at the outset because if plaintiff has not incurred damages, she cannot state a claim for
breach of warranty. See Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d
969, 973, 773 N.E.2d 1199, 1203 (2002).
The Magnuson-Moss Act supports an action against a manufacturer for the failure to
comply with the terms of a written or implied warranty. 15 U.S.C. §2301(d)(1) (2000). Absent a
conflict between the Magnuson-Moss Act and a state’s law governing the sale of consumer
products, state law applies. Zwicky v. Freightliner Custom Chassis Corp., 373 Ill. App. 3d 135,
143, 867 N.E.2d 527, 534 (2007). Thus, we consider the applicable Illinois enactment of the
Uniform Commercial Code (the Code) (820 ILCS 5/1-101 et seq. (West 2004)).
Under section 2-714(2) of the Code, damages for breach of warranty are measured by “the
difference at the time and place of acceptance between the value of the goods accepted and the
value they would have had if they had been as warranted.” 810 ILCS 5/2-714(2) (West 2004).
Here, plaintiff argues that the value that she received “upon disposition,” i.e., at trade-in, does not
preclude her recovery under section 2-714. Plaintiff claims that, without the car’s mechanical
defects, she would have received more than $24,400 at trade-in.
Defendant contends that plaintiff did not establish that the difference between the $47,000
purchase price and the $24,400 that she received 3½ years later when she traded in the ML 500
6
Nos. 1-06-0262 and 1-06-1266 (consolidated)
could be attributed to a defect in the vehicle or to anything besides normal depreciation.
Defendant urges this court to follow Valenti, in which the plaintiff traded in a Mitsubishi Galant
for a credit of $11,000 after driving the Galant for 2½ years and more than 17,000 miles. Valenti,
332 Ill. App. 3d at 973, 773 N.E.2d at 1203. According to the manager of preowned vehicles
where the plaintiff traded in the Galant, $11,000 was the Galant’s “fair market value” at the time
of the trade-in. Valenti, 332 Ill. App. 3d at 972, 773 N.E.2d at 1202. The appellate court
affirmed summary judgment in favor of the carmaker, concluding that the plaintiff did not
establish damages because the plaintiff sold the car at its fair market value. Valenti, 332 Ill. App.
3d at 973, 773 N.E.2d at 1203.
In distinguishing Valenti, plaintiff cites, as supplemental authority, Shoop v.
DaimlerChrysler Corp., 371 Ill. App. 3d 1058, 1060-61, 864 N.E.2d 785, 787 (2007), which was
decided during the pendency of this appeal. In Shoop, the plaintiff purchased a 2002 Dodge
Dakota truck for $28,000, traded it in about three years later, and received a $16,500 credit
toward a new vehicle. Shoop, 371 Ill. App. 3d at 1059-60, 864 N.E.2d at 787-88. In response to
the defendant automaker’s motion for summary judgment asserting that the plaintiff did not suffer
damages due to the value received at trade-in, the plaintiff presented affidavits of two witnesses
that the truck’s value was diminished by manufacturing defects when the plaintiff bought it.
Shoop, 371 Ill. App. 3d at 1060, 864 N.E.2d at 787. The trial court granted the carmaker’s
motion for summary judgment. Shoop, 371 Ill. App. 3d at 1060, 864 N.E.2d at 787.
On appeal, this court reversed the grant of summary judgment, concluding that a genuine
issue of material fact existed as to the plaintiff’s damages, given the evidence of diminished value.
7
Nos. 1-06-0262 and 1-06-1266 (consolidated)
Shoop, 371 Ill. App. 3d at 1063, 864 N.E.2d at 790. The automaker in Shoop asserted that the
plaintiff did not suffer a “present injury” because he received more than the fair market value for
his car upon trade-in. Shoop, 371 Ill. App. 3d at 1059, 864 N.E.2d at 786. However, the court
concluded that the attestations of the plaintiff’s witnesses created an issue of fact as to whether
the vehicle’s value was diminished at the time it was sold to the plaintiff. Shoop, 371 Ill. App. 3d
at 1063, 864 N.E.2d at 790. The court noted that the affidavits averring the reduced value of the
truck distinguished the facts before it from those in Valenti, in which the plaintiff relied only on
the allegations of her complaint and the record to establish diminished value. Shoop, 371 Ill. App.
3d at 1062, 864 N.E.2d at 789, citing Valenti, 332 Ill. App. 3d at 973, 773 N.E.2d at 1203.
Pointing to Shoop, plaintiff asserts that she established damages even though she traded in
the vehicle. We find this case to be procedurally distinguishable from both Shoop and Valenti,
which were appeals from summary judgment motions. In Shoop, two witnesses attested to the
vehicle’s value at the time of purchase, and the appellate court determined that evidence was
sufficient to establish a genuine issue of material fact as to the plaintiff’s damages. Shoop, 371 Ill.
App. 3d at 1062, 864 N.E.2d at 789. The testimony in Shoop did not establish that the plaintiff
suffered damages; rather, a question of fact existed that precluded summary judgment.
Shoop demonstrates that, given the proper proof, a plaintiff can recover damages even if
he or she has traded in a vehicle for fair market value. Shoop, 371 Ill. App. 3d at 1063, 864
N.E.2d at 790. Indeed, this court has endorsed the theory of such a damage award, interpreting
the Uniform Commercial Code and the common law of sales. See Bartow v. Ford Motor Co.,
342 Ill. App. 3d 480, 490-91, 794 N.E.2d 1027, 1035-36 (2003), quoting 67A Am. Jur. 2d Sales
8
Nos. 1-06-0262 and 1-06-1266 (consolidated)
§1242 (2000). We restate a portion of that treatise quoted in Bartow:
“[T]he application of the ordinary rule of damages for breach of warranty, namely
the difference between the value of the goods as warranted and the value of the
goods as they actually were upon acceptance was not changed or modified by the
fact that the purchaser had resold the article at a profit, either by reason of an
advance in the market or by reason of an existing contract; the seller could not
assert this as a defense, or in mitigation of damages.” (Emphasis added.) 67A
Am. Jur. 2d Sales §1242 (2000).
Bartow addressed a plaintiff’s standing under the Magnuson-Moss Act after she sold the
allegedly defective vehicle, and the court concluded that the resale of the vehicle did not preclude
the recovery of damages. Bartow, 342 Ill. App. 3d at 490, 794 N.E.2d at 1035. Shoop discussed
that holding in Bartow in the context of the proof required to overcome the defendant’s motion
for summary judgment. Shoop, 371 Ill. App. 3d at 1063, 864 N.E.2d at 789.
Thus, having determined that a plaintiff can recover damages even when the vehicle has
been traded in for fair market value, this court proceeds to consider whether plaintiff produced
sufficient evidence to support her damages award.
II. Plaintiff’s Valuation Testimony
The trial court awarded plaintiff damages based on the diminished value of the vehicle at
the time she bought it. On appeal, defendant renews its contention that plaintiff did not establish
personal knowledge of the ML 500 in its allegedly defective state to support her lay opinion
9
Nos. 1-06-0262 and 1-06-1266 (consolidated)
testimony that the vehicle was worth $23,500 when she bought it. Defendant asserts that the trial
court erred in allowing plaintiff to base her opinion testimony on automobile publications and her
experience of prior auto purchases.
Since this case concluded in late 2005, the Illinois Supreme Court has reiterated that a lay
witness can offer an opinion as to the value of personal property if the witness has sufficient
personal knowledge of the property and its value. Razor v. Hyundai Motor America, 222 Ill. 2d
75, 109, 854 N.E.2d 607, 627 (2006); see also Wausau Insurance Co. v. All Chicagoland
Moving & Storage Co., 333 Ill. App. 3d 1116, 1128, 777 N.E.2d 1062, 1073 (2002).
In Razor, the supreme court found speculative a jury’s $5,000 damage award, calling it a
“suspiciously round number.” Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627. The court concluded
that the plaintiff’s attempt to establish damages was stopped short by what it deemed the trial
judge’s “preemptive[]” ruling that the plaintiff could not testify as to the value of the vehicle in its
defective state. Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627-28. The supreme court held that the
plaintiff should have been allowed to testify as to what she would have paid for the car in question
had she known of the defects, but cautioned that “there must be an adequate showing of the basis
for such testimony before it will be allowed.” Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627-28.
The court remanded for a new trial on damages at which the plaintiff’s counsel must not be
“precluded from attempting to lay a foundation” for her knowledge of the value of the car in its
defective state; the court noted, however, that the ultimate sufficiency of the foundation presented
would be left to the discretion of the trial court. Razor, 222 Ill. 2d at 110, 854 N.E.2d at 628.
Additionally, this court recently concluded in Kim that the plaintiff’s testimony in that case
10
Nos. 1-06-0262 and 1-06-1266 (consolidated)
was not sufficient to lay a foundation for the diminished value of the vehicle in question, although
the court first concluded that the plaintiff’s proposed testimony was not disclosed under Supreme
Court Rule 213(f). See Kim, 353 Ill. App. 3d at 454-55, 818 N.E.2d at 722, citing 210 Ill. 2d R.
213(f). The court held that even had the testimony been properly disclosed, the plaintiff provided
no evidence or testimony of personal knowledge of the subject vehicle “in its allegedly defective
state” and therefore did not lay an adequate foundation for the diminished value of the vehicle.
Kim, 353 Ill. App. 3d at 457, 818 N.E.2d at 724.
Here, in contrast to the result in Kim, the trial court found adequate disclosure and
allowed plaintiff’s lay opinion testimony as to what she would have paid for the car had she
known of the mechanical problems. In response to defendant’s interrogatories, plaintiff disclosed,
inter alia, that she would “offer lay person testimony regarding [her] subjective belief as to the
diminished value of the subject vehicle at the time the vehicle was purchased and/or leased” and,
further, that plaintiff would testify that the value of the ML 500 “was diminished by as much as
50% (or less) of the purchase/lease price.” In plaintiff’s discovery deposition, she stated that
before she bought the ML 500, she knew the “general price range” of the car from advertising.
She also researched the vehicle at the Mercedes-Benz website and read magazines and the
Chicago Tribune.
At trial, during plaintiff’s testimony, the court overruled numerous defense objections
pending its ultimate ruling on the admissibility of plaintiff’s lay opinion of the value of the ML
500. In overruling one objection, the court stated:
“You don’t have to be an expert to give an opinion as to value. So I have to hear
11
Nos. 1-06-0262 and 1-06-1266 (consolidated)
what her experience has been and what her knowledge has been in order to decide
whether she is qualified to given an opinion as to value.”
Plaintiff was asked her opinion of the value of the ML 500 on the date she purchased it, in
its allegedly defective condition, based on her research and knowing what she knew at the time of
trial regarding the mechanical problems. Plaintiff testified that, considering the problems she
experienced with the ML 500, the vehicle was worth $23,500, or half of its $47,000 purchase
price, at the time she bought it.
Consistent with her discovery deposition, plaintiff testified at trial that she researched her
purchase in various publications and using the Internet. The publications and Internet sites listed
vehicles for sale along with their description, mileage and asking price. One site calculated a
vehicle’s price from information provided by the user, including whether a transaction was
between private parties or with a dealership.
The trade publications indicated the impact of an automobile’s condition on its value,
categorizing vehicles as normal, fair or poor. Plaintiff noted a 10 % difference in value between
vehicles in the different categories. She testified that she “didn’t have the same expectation” of a
used vehicle as she did of a new vehicle and would pay more for a new car.
To establish an appropriate foundation as to the value of personal property, a lay witness
should be able to testify, at a minimum, as to his or her: (1) familiarity with the property in
question; (2) actual knowledge of the value of the subject property; and (3) the basis of the
knowledge of that value, “i.e., how, when and where the witness obtained the knowledge.” Kim,
353 Ill. App. 3d at 456-57, 818 N.E.2d at 723. The trial court’s exclusion or admission of
12
Nos. 1-06-0262 and 1-06-1266 (consolidated)
evidence will not be reversed absent an abuse of discretion, meaning that no reasonable person
would adopt the court’s view. Razor, 222 Ill. 2d at 110, 854 N.E.2d at 628; Kim, 353 Ill. App.
3d at 452, 818 N.E.2d at 720.
The rationale of admitting lay opinion testimony is that certain topics can be discussed
without special knowledge, provided that the facts upon which those opinions are based are set
out and made understandable to the jury and/or the court. See Kolstad v. Rankin, 179 Ill. App.
3d 1022, 1030, 534 N.E.2d 1373, 1378 (1989) (allowing lay opinion testimony as to noise levels
in nuisance suit against neighboring firing range). The court in Kim noted, and our research leads
us to agree, that Illinois courts have not established more specific factors necessary to establish a
proper foundation for the valuation opinion of a lay witness. See Kim, 353 Ill. App. 3d at 456,
818 N.E.2d at 723.
Here, in concluding that plaintiff presented an adequate foundation for her testimony of
the value of the ML 500 in its defective state, the court noted that plaintiff “was familiar with the
[vehicle], she owned it, she used it, she drove it, she brought it in for the repairs and she had
actual knowledge of the value of the subject property and she had knowledge of this vehicle.”
The court also noted plaintiff’s testimony of trading in her first Mercedes and her research in
automobile publications before buying the ML 500 established her knowledge of the vehicle’s
value in its allegedly defective state.
Here, plaintiff did what any prudent consumer does before making a large purchase; she
researched a product and the market’s established price for that product in 2002 to determine the
13
Nos. 1-06-0262 and 1-06-1266 (consolidated)
amount she reasonably should pay for a new Mercedes ML 500.1 Plaintiff’s opinion testimony
was rooted in knowledge gleaned as a buyer of a new vehicle, and she possessed sufficient
personal knowledge of the value of the ML 500 as new. However, it is necessary to distinguish
that testimony from her lay opinion testimony of the value of the vehicle in its defective state.
We cannot help but note, as a practical matter, that plaintiff received a larger monetary
credit when she traded the ML 500 in ($24,400) than she opined the car was worth when she
bought it. Plaintiff’s testimony that, in hindsight, she would have paid $23,500 for the vehicle as
new, given the mechanical defects, is comparable to the testimony that was excluded in Razor. In
Razor, the supreme court held that the plaintiff could testify as to what she would have paid for
the vehicle knowing of its defects, but the court cautioned that an adequate basis must be
established for the personal knowledge of the value of the car in its defective condition. Razor,
222 Ill. 2d at 109, 854 N.E.2d at 627-28.
Here, plaintiff confronts the same obstacle that arose in Razor and in Kim: the necessity of
establishing a foundation for her knowledge of the vehicle in its defective state. Although plaintiff
presented her knowledge of the value of the vehicle as new and set out the factors on which she
based her opinion, she did not provide the basis of her testimony that the ML 500 was worth
$23,500 in its defective state at the time of purchase.
Plaintiff drove the ML 500 and drove it for 3½ years and more than 25,000 miles before
1
In Behrens v. W.S. Bills & Sons, Inc., 5 Ill. App. 3d 567, 577, 283 N.E.2d 1, 7 (1972),
the court admitted the plaintiffs’ use of a catalog to support an opinion as to the value of damaged
fixtures, noting that such opinion testimony could be based on “a knowledge of prevailing prices
of such items based on shopping with friends, window shopping, noticing newspaper
advertisements and hearing radio advertisements.”
14
Nos. 1-06-0262 and 1-06-1266 (consolidated)
trading it in and receiving the fair market trade-in value of $24,400 toward the purchase of
another vehicle. Due to numerous repairs, plaintiff contended that the value of the ML 500 was
diminished at the time she bought it. However, in stating her opinion of the diminished value,
plaintiff, by her own admission, “pulled a number out of her head,” to paraphrase her testimony.
In making that estimation, plaintiff arrived at a conspicuously round figure for the value of the
vehicle in its defective state: 50 % of its $47,000 purchase price, or $23,500.
In discussing opinion testimony by lay witnesses, it has been observed:
“If the basis of the opinion includes so many varying or uncertain factors that the
lay witness is required to guess or surmise in order to reach an opinion, the opinion
is objectionable as speculation or conjecture.” M. Graham, Cleary & Graham’s
Handbook of Illinois Evidence, §701.1, at 597 (7th ed. 1999).
Plaintiff’s specific assertions on appeal illustrate the uncertainty of her valuation. First,
she points to her trial testimony that she traded in her first Mercedes for $29,000 when she bought
the ML 500. That testimony was apparently intended to illustrate that because plaintiff drove the
first Mercedes for 3½ years and it had more miles on it than the ML 500 did at trade-in, she
should have received more for the ML 500 at trade-in than the $29,000 she received for the first
Mercedes. However, that testimony did not establish the value of the ML 500 at trade-in or that
the ML 500 was worth $23,500 at the time of purchase, as opposed to the $47,000 that plaintiff
paid. In addition, plaintiff’s testimony was countered by Tabachka’s statement that plaintiff
received the fair market value of the ML 500 at trade-in, which was $24,400.
Additionally, plaintiff’s description of her research in automobile value guides and the
15
Nos. 1-06-0262 and 1-06-1266 (consolidated)
10 % difference in value between a vehicle in good condition, fair condition or poor condition
also does not support her $23,500 valuation. Although plaintiff repeatedly points to her
testimony on that point, and although Tabachka testified that those guides are used in the car
industry to determine value, plaintiff did not attempt to perform the necessary calculations. In any
event, a 20 % or even a 30 % difference between a vehicle in good condition and one in poor
condition would not result in the reduction in value of a $47,000 vehicle to $23,500 at the time of
purchase, a reduction of 50 %.
Plaintiff further contends that the cost of repairs to the ML 500, which plaintiff asserts was
more than $8,000, is additional evidence of the existence of damages. However, although plaintiff
refers to receipts for those repairs, she directs this court to a supplemental record containing recall
notices concerning the vehicle. Even if such receipts were provided, plaintiff concedes that the
cost of repair is not the measure of damages to be used here (see Kim, 353 Ill. App. 3d at 460-61,
818 N.E.2d at 726-27), and she acknowledges that she did not incur those costs, since the vehicle
was repaired pursuant to the warranty.
Plaintiff also asserts that a strict approach to lay opinion testimony contradicts the
rationale allowing such evidence. Plaintiff contends that if she is not allowed to base her lay
opinion on outside sources such as newspapers, automotive publications and websites, she is
effectively required to render an expert opinion based on scientific or technical knowledge, thus
eroding the purpose of a lay opinion. We do not hold that such sources cannot ever provide the
foundation of a witness’s lay opinion; rather, we have concluded that plaintiff failed to establish
that the outside sources in this case educated her as to the value of the ML 500 in its diminished
16
Nos. 1-06-0262 and 1-06-1266 (consolidated)
state such that her lay opinion testimony was supported. The trial court’s acceptance of plaintiff’s
testimony as establishing the diminished value of the vehicle constituted an abuse of discretion.
CONCLUSION
Because plaintiff failed to establish an adequate basis for her lay opinion testimony of the
value of the ML 500 in its defective state, the trial court’s acceptance of that testimony
constituted an abuse of discretion. Thus, the court’s rulings on the breach of warranty claims are
reversed because plaintiff has failed to establish damages.
Accordingly, the December 21, 2005, order granting judgment to plaintiff on her warranty
claims and awarding $8,000 in damages is reversed, as is the March 29, 2006, order awarding
plaintiff attorney fees and costs in the amount of $31,565.65. Given that disposition, we reject
plaintiff’s request to file, pursuant to section 2310(d)(2) of the Magnuson-Moss Act (15 U.S.C.
§2310(d)(2) (2000)), a supplemental fee petition for attorney fees and costs incurred in this
appeal.
Reversed.
FITZGERALD SMITH, P.J., and O’MARA FROSSARD, J., concur.
17