dissenting:
Plaintiff is the typical consumer the Magnuson-Moss Act was designed to protect. She paid over $6,700 for an American Motors’ car that came with the manufacturer’s full 12-month/12,000-mile new-car written warranty, and she got a “lemon.” Although she returned the car to the dealer’s service shop seven times during the 17 months following its purchase, its defects were so numerous and serious that the car could not be satisfactorily repaired. American Motors does not dispute this. Its position is simply that the plaintiff went about asserting her rights under the Magnuson-Moss Act in the wrong way.
The Act gives the purchaser the right to elect to receive either a refund or a replacement. It also gives the purchaser the right to sue the manufacturer for damages and other legal and equitable relief when a recalcitrant manufacturer refuses to recognize the purchaser’s election.
The statute is designed to protect consumers. Its purpose is to make consumers whole. I believe that we should carry out that purpose. The remedy of replacement provided for by the Magnuson-Moss Act should be easily obtainable so that purchasers are not “runaround” by automobile manufacturers or dealers or subjected to lengthy legal proceedings.
Although the Act expressly grants automobile purchasers the remedy of replacement, the requirements that the majority imposes on a suit under the MagnusonMoss Act effectively prevent automobile purchasers from pursuing that remedy. Under the majority’s holding, the purchaser of a defective car must allege and prove that he will suffer irreparable harm if the automobile is not replaced. Such a showing is difficult, if not impossible, however, when the automobile is one of thousands of mass-produced vehicles with nothing unique about it and when a replacement is readily available for purchase in dealers’ showrooms.
Thus, consumers are deprived by the majority of a remedy the Act gives them. This result is contrary to standard principles of statutory construction. A statute should be read as a whole in order to give effect to its purpose. (Morris v. Broadview, Inc. (1944), 385 Ill. 228, 231-32.) It should also be construed so as to give effect to every provision, so that no part will be superfluous. (Morris v. Broadview; 2A A. Sutherland, Statutory Construction sec. 46.06 (4th ed. 1973).) In keeping with these commonly accepted adages, the Magnuson-Moss Act should be construed in a way that will not effectively read the remedy of replacement out of the Act.
The Act also gives the purchaser the option of seeking money damages. But this is no different than the remedy available to an automobile purchaser with a full warranty prior to passage of the Act (UCC sec. 2—714(2), Ill. Rev. Stat. 1979, ch. 26, par. 2—714(2)), except that the Magnuson-Moss Act gives the trial judge discretion to award attorney fees to automobile purchasers who prevail under the Act. Clearly it was the intent of Congress in adopting the Magnuson-Moss Act to give consumers recourse in addition to what they already had.
Moreover, an action for damages may not in many instances be as practicable and effective a remedy as an injunction requiring replacement for a person who finds himself stuck with a “lemon.” A defendant in a suit for such damages is likely to be able to prolong it for a greater period than a suit for an injunction requiring replacement. In addition, the consumer must be able to bear the burden of the added expense of alternative transportation or obtaining a replacement car, as well as storing the “lemon,” and he cannot be certain that the damage award will fully compensate him for such expenses. In a damage suit, there is also the problem of establishing the value of the defective car, which must be deducted from the cost of a new vehicle. This could impose on the purchaser the burden of hiring an appraiser to cope with experts who are readily available to automobile manufacturers. The most expeditious remedy is replacement, which is the remedy Congress intended to give consumers, but which the majority opinion takes away.
The purchaser might be able to allege and prove that he will suffer irreparable harm without injunctive relief on the theory that he requires the use of an automobile to safeguard his health or maintain his livelihood or for some other valid reason, and that he cannot afford to purchase a replacement vehicle. (See Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101; Euclid Corp. v. Tully (1976), 42 Ill. App. 3d 105.) However, this complicates what would otherwise be a simple resolution by introducing a factual question extraneous to the condition of the automobile. The defendant might seize upon the question of whether the purchaser has assets sufficient to replace the “lemon” to prolong the disposition of his claim for equitable relief.
I would not apply Mullarky v. Trautvetter (1916), 276 Ill. 409, 411-12, Middleton-Keirn v. Stone (5th Cir. 1981), 655 F.2d 609, Smallwood v. National Can Co. (9th Cir. 1978), 583 F.2d 419, and United States v. Hayes International Corp. (5th Cir. 1969), 415 F.2d 1038, as narrowly as the majority does. I read the quotation from Mullarky set forth in the majority opinion to authorize the granting of equitable relief in this case because the plaintiff has stated in her complaint all that the Act requires. Then I rely on Middleton-Keirn, Smallwood and Hayes for the proposition that irreparable harm is presumed from the violation of the Act. That the Magnuson-Moss Act speaks in terms of equitable relief rather than the issuance of an injunction I view as a quibble with words.
The purpose of the Magnuson-Moss Act was to give protection to automobile purchasers in addition to that provided by the Uniform Commercial Code; I think we should give consumers the break that Congress clearly intended. The proper rule to follow in this case is simple — a complaint is adequate when it seeks a statutorily granted remedy and alleges the facts required by the statute.
Finally, the majority’s assertion that the general rule regarding statutory remedies only applies to cases involving governmental agencies or parties acting in the public interest is not supported by either MiddletonKeirn or Smallwood. In both of those cases the plaintiff and defendant were private parties. Rondeau v. Mosinee Paper Corp. (1975), 422 U.S. 49, 45 L. Ed. 2d 12, 95 S. Ct. 2069, on which the majority relies for this assertion, is unlike this case because it involved a cause of action for a remedy not created by statute, in contrast to the statutorily created remedy of replacement in an equitable action provided by the Magnuson-Moss Act.
I dissent because I view the complaint as one stating a valid cause of action under the Magnuson-Moss Act.