Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants, BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

JURY VERDICT FORM

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 2 of 14

We the jury in the above-entitled case, being first duly empanelled and sworn and having heard the evidence at trial and being instructed in the applicable law, present our Answers to the Questions submitted by the Court, to which we have agreed as follows:

I. ... II. A.

Big-D' Claims Against UMM s

UMM' Claims Against Big-D s Breach by Misrepresentation

1. Do you find that Big-D breached the subcontract with UMM by misrepresenting the true nature of the status of the project, including the status of the construction schedule and/or the status of designs and plans for work to be performed by others? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section B. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section B. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section B. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ 2

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 3 of 14

Go to Section B. B. Breach by Failure to Act in Good Faith and Deal Fairly with UMM

1. Do you find that Big-D breached the subcontract with UMM by its failure to act in good faith and deal fairly with UMM? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section C. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No 2 is "No", skip the remainder of this section and go to Section C. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section C. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section C. C. Breach by Failure to Pay for Completed Work

1. Do you find that Big-D breached the subcontract with UMM by its failure to pay for completed work ? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question 3

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 4 of 14

Question No. 1 is "No", skip the remainder of this section and go to Section D. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section D. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section D. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section D. D. Breach by Failure to Pay Extended and Increased General Conditions Costs

1. Do you find that Big-D breached the subcontract with UMM by failure to pay extended and field general conditions costs? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section E. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section E. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? 4

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 5 of 14

Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section E. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section E. E. Breach by the Issuance of Numerous Change Orders

1. Do you find that Big-D breached the subcontract with UMM by the issuance of numerous change orders that materially affected UMM' ability to perform the work and that resulted in a s different or altered project than the one UMM bid on? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section F. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section F. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section F. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ 5

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 6 of 14

Go to Section F. F. Breach by Issuance of Material Change Orders

1. Do you find that Big-D breached the subcontract with UMM by the issuance of significant and material change orders that resulted in a different or altered project than the one UMM bid on?

Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section G. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. . If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section G. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section G. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section G. G. Breach by Interference With Work

1. Do you find that Big-D breached the subcontract with UMM by interfering, hindering and/or preventing UMM' performance of its work? s Answer: ______ (Yes/No)

6

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 7 of 14

If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section H. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. . If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section H. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section H. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section H. H. Breach by Failure to Grant Reasonable Requests for Additional Time to Complete UMM' Work s 1. Do you find that Big-D breached the subcontract with UMM by its failure to grant reasonable requests for additional time to complete UMM' work? s Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section I. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section I.

7

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 8 of 14

3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section I. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section I. I. Breach by Failure to Provide Complete and Accurate Information Given to it by Leprino 1. Do you find that Big-D breached the subcontract with UMM by its failure to provide complete and accurate information given to it by Leprino? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section J. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section J. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section J. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. 8

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 9 of 14

Answer: $ _________ Go to Section J. J. Breach by Untimely Issuance of Change Orders

1. Do you find that Big-D breached the subcontract with UMM by its failure to timely issue, or cause to be issued, AFEs and Owner Change Orders in response to UMM' bids? s Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section K. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section K. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section K. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section K. K. Breach by Improperly Withholding Payments as Backcharges

1. Do you find that Big-D breached the subcontract with UMM by its improperly withholding payments, or parts thereof, due to UMM as backcharges? Answer: ______ (Yes/No) 9

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 10 of 14

If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section L. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section L. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section L. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section L. L. Breach by Failure to Advise of Potential Errors in UMM' Bid s

1. Do you find that Big-D breached the subcontract with UMM by its failure to advise of potential errors in UMM' bid? s Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section M. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section M.

10

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 11 of 14

3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section M. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section M. M. Breach by Failure to Comply With Subcontract Terms

1. Do you find that Big-D breached the subcontract with UMM by its failure to with any of the Subcontract' terms? s Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section N. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section N. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section N. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract.

11

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 12 of 14

Answer: $ _________ Go to Section N . N. Breach by Failure to Make Timely and Complete Progress Payments

1. Do you find that Big-D breached the subcontract with UMM by its failure to make timely and complete progress payments? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and go to Section O. 2. Do you find that Big-D' breach caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section O. 3. Do you find any of Big-D' applicable affirmative defenses have been proved and prohibit s UMM from recovering damages for this breach? Answer: ______ (Yes/No) If your answer to Question No. 3 is "No" go to Question No. 4. If your answer to Question No. 3 is "Yes", skip the remainder of this section and go to Section O. 4. Enter the amount of damages which UMM is entitled to recover from Big-D as a result of this breach of the Subcontract. Answer: $ _________ Go to Section O. O. 1. Abandonment of Contract Do you find that Big-D abandoned the Subcontract? Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question 12

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 13 of 14

Question No. 1 is "No", skip the remainder of this section and go to Section IIIA. 2. Do you find that Big-D' abandonment of the Subcontract caused damages to UMM? s Answer: ______ (Yes/No) If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and go to Section IIIA. 3. What is the reasonable value of the labor, equipment and materials provided by UMM to the Project? Answer: $_______________ Go to the next question. 4. What is the amount UMM has been paid for the labor, equipment and materials provided by UMM to the Project? Answer $ _______________ Go to Section IIIA. III. A. 1. UMM' Claim Against Federal Insurance Company s Mechanic' Lien Release Bond s Do you find that UMM timely and properly filed a mechanic' lien against the project? s Answer: ______ (Yes/No) If your answer to Question No. 1 is "Yes" go to Question No. 2. If your answer to Question No. 1 is "No", skip the remainder of this section and sign and return this form. 2. Do you find that UMM has proved that it was entitled to recover the reasonable value of its labor, equipment and materials pursuant to its Mechanic' Lien? s If your answer to Question No. 2 is "Yes" go to Question No. 3. If your answer to Question No. 2 is "No", skip the remainder of this section and sign and return this form. 3. Do you find that Federal Insurance Company issued a Mechanic' Lien Release Bond that s when recorded released the mechanic' lien? s

13

Case 1:03-cv-02669-MSK-PAC

Document 331-18

Filed 03/31/2006

Page 14 of 14

Answer: ______ (Yes/No) If your answer to Question No. 3 is "Yes" go to Question No. 4. If your answer to Question No. 3 is "No", skip the remainder of this section and sign and return this form. 4. What is the reasonable value of the labor, equipment and materials provided by UMM to the Project? Answer: $______ Go to the next question. 5. What is the amount UMM has been paid for the labor, equipment and materials provided by UMM to the Project? Answer $ _______ Please sign the form.

[jurors'signature block]

14