No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net
No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net
No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
safety concerns” involving unidentified non-OEM parts. But failure to disclose a possibility<br />
of concern is not a sufficient basis for ICFA liability. The law requires disclosure of actual<br />
known safety problems, not speculative “concerns” that “possibly” may be valid. Cf.<br />
Collins v. Hyster Co., 174 Ill.App.3d 972, 979 (3d Dist. 1988) (defendant has duty to<br />
disclose safety defect in product only when it “knows or should know that injury may<br />
occur”). Otherwise, any non-disclosure could be deemed deceptive: all products, from<br />
airplanes to toasters, raise “concerns” about safety for any prudent manufacturer or user, but<br />
few concerns are sufficiently concrete to create a duty to disclose, the breach of which is<br />
punishable as consumer fraud.<br />
The record in this case would not support a finding by a preponderance of the<br />
evidence, much less clear and convincing evidence, that State Farm had actual concerns<br />
about the safety of parts that it was actually specifying. Despite the fact that there were<br />
literally millions of non-OEM parts on the road, plaintiffs failed to adduce evidence that any<br />
person suffered any injury caused by any non-OEM part, much less one specified by State<br />
Farm. 59/<br />
Furthermore, although plaintiffs speculated about safety concerns raised by non-<br />
OEM hoods, doors and bumpers, such concerns could not possibly support a judgment in<br />
favor of the large portion of the class who received non-OEM parts — such as plastic<br />
moldings — that have no safety implications at all. See Kelly, 308 Ill.App.3d at 644. Given<br />
59/<br />
This ground for liability also ignores the undisputed fact that the federal government<br />
has recalled millions of OEM parts — but no non-OEM parts — due to safety problems. R.<br />
5431-62, 10800; DX 2002. The circuit court never explained why State Farm may specify<br />
OEM parts without disclosing possible safety concerns (and why OEM manufactures need<br />
not disclose these concerns when selling new cars), while the failure to disclose when<br />
specifying non-OEM parts constitutes fraud.<br />
-128-