Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 Negatu Molla (Bar No. 006254)

2 BOWMAN AND BROOKE LLP Suite 1600, Phoenix Plaza
3 2901 North Central Avenue

David W. Willams (Bar No. 022764)

4 (602) 643-2300
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Phoenix, Arizona 85012-2761

Attorneys for Defendant Workhorse Custom Chassis

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

LANE SENNETT,
Plaintiff,
v.

No. CV04 0161 PHX ROS
THE PARTIES' PROPOSED JURY INSTRUCTIONS
(Assigned to Honorable Roslyn O. Silver)

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FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC. and WORKHORSE CUSTOM CHASSIS; INC.,

Defendants.

17 Workhorse Custom Chassis, LLC ("Workhorse") and Plaintiff Lane Sennett
18 ("Plaintiff') hereby submit their proposed jury instructions.
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THE PARTIES' STIPULATED NINTH CIRCUIT MODEL JURY INSTRUCTIONS

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1.4 WHAT IS NOT EVIDENCE
The following things are not evidence, and you must not consider them as
evidence in deciding the facts of this case:
(1) statements and arguments of the attorneys;
(2) questions and objections of the attorneys;
(3) testimony that I instruct you to disregard; and

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(4) anything you may see or hear when the court is not in session even if
what you see or hear is done or said by one of the parties or by one of the witnesses.

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Accepted

Rejected
Modified

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1.6

DIRECT AND CIRCUMSTANTIAL EVIDENCE

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Evidence may be direct or circumstantiaL. Direct evidence is direct proof of a
fact, such as testimony by a witness about what that witness personally saw or heard

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or did. Circumstantial evidence is proof of one or more facts from which you could

find another fact. You should consider both kinds of evidence. The law makes no
distinction between the weight to be given to either direct or circumstantial evidence.
It is for you to decide how much weight to give to any evidence.

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Accepted
Rejected
Modified

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1.8

CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to
believe and which testimony not to believe. You may believe everything a witness
says, or part of it, or none of it.

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In considering the testimony of any witness, you may take into account:
(1) the opportunity and ability of the witness to see or hear or know the

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things testified to;
(2)
(3)

the witness' memory;

the witness' manner while testifying;

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(4)

the witness' interest in the outcome of the case and any bias or

prejudice;
(5)
(6)

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whether other evidence contradicted the witness' testimony;
the reasonableness of the witness' testimony in light of all the evidence;

and

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(7) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the
number of witnesses who testify.

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Accepted

Rejected
Modified

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1.13 BURDEN OF PROOF-PREPONDERANCE OF THE EVIDENCE
When a party has the burden of proof on any claim (or affrmative defense) by
a preponderance of the evidence, it means you must be persuaded by the evidence

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that the claim (or affrmative defense) is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party
presented it.

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Accepted

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Rejected
Modified

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2.6

DEPOSITION AS SUBSTANTIVE EVIDENCE

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When a person is unavailable to testify at trial, the deposition of that person

may be used at the triaL. A deposition is the sworn testimony of a witness taken
before triaL. The witness is placed under oath to tell the truth and lawyers for each
party may ask questions. The questions and answers are recorded. Deposition

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testimony is entitled to the same consideration and is to be judged, insofar as

possible, in the same way as if the witness had been present to testify.

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Accepted
Rejected
Modified

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3.7

OPINION EVIDENCE, EXPERT WITNESSES

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You have heard testimony from (Insert Witness Name) who, because of
education or experience, (is) permitted to state opinions and the reasons for those
opinnons.

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Opinion testimony should be judged just like any other testimony. You may

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accept it or reject it, and give it as much weight as you think it deserves, considering
the witness' education and experience, the reasons given for the opinion, and all the
other evidence in the case.

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Accepted

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Rejected
Modified

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DEFENANDANT'S PROPOSED NINTH CIRCUIT MODEL INSTRUCTIONS

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1.3 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
(1) the sworn testimony of any witness;
(2) the exhibits which are received into evidence; and
(3) any facts to which the lawyers stipulate.

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Accepted
Rejected
Modified

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Plaintiff objects to this Proposed Jury Instruction because it duplicates the substance covered by 1.6, 1.6 and 3.7 and excludes the concept of circumstantial evidence thus possibly creating undue confusion. Jury instruction 1.6 adequately and simply covers the fundamental concepts here.
Stipulations can be read and instructed upon as needed during triaL.

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1.7

RULING ON OBJECTIONS

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There are rules of evidence that control what can be received into evidence.

When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the

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other side thinks that it is not permitted by the rules of evidence, that lawyer may

object. If I overrule the objection, the question may be answered or the exhibit
received. If I sustain the objection, the question cannot be answered, and the exhibit

cannot be received. Whenever I sustain an objection to a question, you must ignore
the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you

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disregard or ignore the evidence. That means that when you are deciding the case,
you must not consider the evidence that I told you to disregard.

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Accepted
Rejected
Modified

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Plaintiff objects to this Jury Instruction as redundant and cumulative.
Upon information and belief, the court normally advises the jury directly on this

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issue.

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3.1

DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW

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Members of the jury, now that you have heard all the evidence it is my duty to
instruct you on the law which applies to this case. A copy of these instructions wil be
available in the jury room for you to consult if you find it necessary.

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It is your duty to find the facts from all the evidence in the case. To those facts

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you will apply the law as i give it to you. You must follow the law as i give it to you
whether you agree with it or not. You must not be influenced by any personal

likes or

dislikes, opinions, prejudices, or sympathy. That means that you must decide the

case solely on the evidence before you. You wil recall that you took an oath
promising to do so at the beginning of the case.

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In following my instructions, you must follow all of them and not single out
some and ignore others; they are all equally important. You must not read into these

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instructions or into anything the court may have said or done any suggestion as to

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what verdict you should return-that is a matter entirely up to you.

Accepted
Rejected
Modified

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Plaintiff objects to this Jury Instruction as redundant and cumulative.
Upon information and belief, the court normally advises the jury directly on this

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issue.

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PLAINTIFF'S PROPOSED NON-MODEL INSTRUCTIONS

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Plaintiff's Proposed Jurv Instruction No.1
Defendant, Workhorse Custom Chassis, Inc. is a corporation and can act only

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through its offcers, employees, business partners and agents. Any act or omission
of an offcer, business partner, employee or agent within the scope of

employment/contract is the action or omission of the corporation. For purposes of this

litigation, Defendant's authorized repair facility(ies) involved in repairs to Plaintiffs
Motor Home, and the employees of these dealerships, are Defendant's authorized

repair agents. This means that Defendant has authorized those entities to perform

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warranty repairs for the subject Motor Home on Defendant's behalf. As such,
Defendant may not blame its authorized dealers and/or authorized repair agents for
any failure to adequately repair the subject Motor Home under warranty.

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Authority: 15 U.S.C. 2307 ("Nothing in this chapter shall be construed to

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prevent any warrantor from designating representatives to perform duties under the

written or implied warranty: Provided, That such warrantor shall make reasonable

arrangements for compensation of such designated representatives, but no such
designation shall relieve the warrantor of his direct responsibilties to the consumer or
make the representative a cowarrantor"); Defendant's Response to Request to Admit

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No.2; Defendant's Response to Request to Admit NO.3.

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- Accepted
Rejected
Modified

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Defendant objects to Plaintiff's proposed instruction no. 1 because 15
U.S.C. § 2307 does not imply or state that a warrantor is responsible for all

actions of its authorized repair facilties and that such actions always fall

within the scope of the warrantor's warranty. There are no facts to support
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this instruction. This instruction could be misleading as some of the repairs
might have no relationship to Workhorse's warranty.

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Plaintiff's Proposed Jurv Instruction No.2
The Magnuson-Moss Warranty - Federal Trade Commission Improvement Act

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("Act") applies to all warranted consumer products manufactured after July 4, 1975

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that cost more than $15.00. The purpose of the Act is to improve the adequacy of
information available to consumers, prevent deception and improve competition in
the marketing of consumer products. A warrantor is defined as "any supplier or other

person who gives or offers to give a written warranty or who is or may be obligated
under an implied warranty." The Act provides consumers remedies for a warrantor's
failure to meet any obligation under a written warranty and/or the Act.
Authority: 15 U.S.C. Section 2301 (5) (6); Section 2302 and Section

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231 0(d)(1); Section 2301 (5).

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- Accepted
Rejected
Modified

Defendant objects to this instruction because it is redundant and

cumulative and likely to confuse the jury. The instruction fails to set forth any

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actual standard for the jury to apply. There is no dispute as to the applicabilty of the Magnuson-Moss Warranty Act. Highlighting this portion of the Act is of no assistance to the jury. As an alternative instruction, please see Defendant's Proposed Instruction No.3, which sets forth the elements of a breach of
written warranty claim.

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Plaintiff's Proposed JUry Instruction No.3

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In connection with Plaintiffs purchase of the Motor Home, Defendant
voluntarily provided to Plaintiff a written warranty called "The Workhorse Custom
Chassis Limited Warranty." The term "written warranty" means:

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(A) any written affrmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the
material or workmanship and affirms or promises that such
material or workmanship is defect free or wil meet a

specified level of performance over a specified period of
time, or

(B) any undertaking in writing in connection with the sale

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by a supplier of a consumer product to refund, repair,
specifications set forth in the undertaking.

replace, or take other remedial action with respect to such

product in the event that such product fails to meet the

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which written affrmation, promise, or undertaking becomes

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part of the basis of the bargain between a supplier and a
buyer for purposes other than resale of such product.

Defendant did not provide to Plaintiff a "service contract" which means "a
contract in writing to perform, over a fixed period of time or for a specified duration,
services relating to the maintenance or repair (or both) of a consumer product."

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Authority: 15 U.S.C. § 2301 (6).

- Accepted
- Rejected
Modified

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Defendant objects to this instruction because it is unnecessary and
cumulative. Defendant does not dispute that it provided a limited written warranty to Plaintiff. Neither Plaintiff nor Defendant claim this is a "service
contract." Therefore, the jury does not need to be instructed on the

Magnuson-Moss definition of a service contract and warranty as that wil not
be an issue for the jury to resolve.
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Plaintiff's Proposed JUry Instruction No.4
Defendant's written warranty covers those items listed in its warranty and
promises to correct any defect related to materials or workmanship in a covered part

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or component. The warranty does not cover repairs caused by tire damage or wear,
damage due to accident, misuse or alteration, damage due to insuffcient or improper

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maintenance, nor does it cover alignments. To obtain repairs, Plaintiff was obligated
to take the Motor Home to one of Defendant's authorized repair facilities and request

the needed repairs. Plaintiff was obligated to allow Defendant a reasonable time to

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perform repairs.
Authority: Defendant's written warranty; N.R.S. 597.630 (2) (b); Milicevic v.
Mercedes-Benz USA, LLC. 256 F.Supp.2d 1168 (2003); 15 U.S.C. §

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2302(b)(3)("...any period of time in excess of a reasonable period (not less than 10
days) during which the consumer is deprived of the use of such consumer product by
reason of failure of the product to conform with the written warranty... ");

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- Accepted
- Rejected
Modified

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Defendant objects to this instruction because the warranty is clear on its
face and the jury is to interpret the terms of Defendant's limited warranty and not to be instructed on what its terms are to mean. Further, Plaintiff is relying

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upon the Nevada Lemon Law as the basis for her instruction, which is not a
cause of action against Defendant and reasonable number of attempts is not
an issue.

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Plaintiff's Proposed JUry Instruction No.5

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Under the Magnuson-Moss Warranty Act, "reasonable number of repairs
attempts" is interpreted to mean that warrantor is entitled to at least two (2) attempts

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to correct the defect. Reasonable number of repair attempts refers to the chassis as
a whole and not individual defects within the chassis itself.

Authority: Ruffin v. Fleetwood Motor Homes of Pennsylvania, Inc., No. 96-

4922, 1997 WL 752000, at *7(E.D.Pa. Dec. 4, 1997); Soldinger v. Aston Martin

Lagonda, 1999 WL 756174; Marchionna v. Ford Motor Co., No. Civ. 94 C275, 1995
WL 476591; see Order on Winnebago Motion to Dismiss dated May 19, 2004.

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Rejected
Modified

Defendant objects to this instruction because it is an incorrect statement
of the law and seeks to apply a "reasonable number of attempts" standard to a

limited written warranty. The reasonable number of attempts standard set
forth in Section 2304 of the MMWA only applies when the manufacturer offers a
"full warranty." In this case, Defendant offered a limited warranty, therefore,

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the "reasonable number of attempts standard is inapplicable. See Chaurasia v. General Motors Corp., 212 Ariz. 18, 126 P.3d 165, 169 (2006); Hines v.
Mercedes-Benz USA, 358 F. Supp. 2d 1222, 1229 (D. Ga. 2005). As an alternate

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instruction, see Defendant's Proposed Instruction No.3.

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Plaintiff's Proposed JUry Instruction No.6

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Defendant Workhorse Custom Chassis's limited warranty is to be interpreted
under ordinary principles of warranty construction. In deciding what a warranty
provision means, you should review the plain language of the warranty and then

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attempt to determine what the parties intended at the time the warranty was issued.
You may consider the surrounding facts and circumstances as you find them to have

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been at the time the warranty was issued. It is for you to determine what those
surrounding facts and circumstances were.

To determine what the parties intended the terms of a warranty to mean, you
may consider the language of the written agreement; the acts and statements of the

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parties themselves before any dispute arose; the parties' negotiations; any prior

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dealings between the parties; any reasonable expectations the parties may have had
as the result of the promises or conduct of the other party; and any other evidence
that sheds light on the parties' intent.

Authority: RAJI (CIVIL) 4th CONTRACT 26 Determining Intent of the Parties.

- Accepted
- Rejected
Modified

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Defendant objects to this instruction because it seeks to have the jury

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consider the intent of the parties. However, the intent of the parties is
irrelevant. Workhorse drafted the limited written warranty. It did so without

input from Plaintiff. Plaintiff and Workhorse did not negotiate the terms of the
limited warranty with Workhorse or any of Workhorse's agents. Any

negotiations between Plaintiff and the sellng dealership cannot be imputed to

Workhorse because the sellng dealership is not an authorized Workhorse

dealer.
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1 With respect to interpreting the warranty, the jury is to look to the plain
2 language of the warranty and apply the terms as written. Chaurasia v. General
3 Motors Corp., 212 Ariz. 18, 126 P.3d 165, 169 (App. 2006); Hasek v.

4 DaimlerChrysler Corp., 745 N.E.2d 627 (II. 2001); Dieter v. Chrysler Corp., 234

5 Wis. 2d 670, 678, 610 N.W.2d 832, 836 (2000). As an alternate instruction, see 6 Defendant's Proposed Instruction No.2.
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Plaintiffs Proposed JUry Instruction No.7 You may find that, even after you have determined and considered the
surrounding facts and circumstances, what the parties intended a particular written

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provision to mean is still not clear to you. If, and only if, you have determined and
considered the facts and circumstances surrounding the formation of the warranty

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and stil cannot determine which is possible, reasonable meanings was intended by
the parties, you should apply the following rules of law:

In choosing between the possible meanings of language in a written
agreement, the meaning that operates against the interests of the party who supplied

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the words is generally the preferred meaning.
All unclear terms are interpreted against the drafter of the warranty.

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Where general words in the warranty are followed by specific terms involving

the same subject matter, the general term is presumed to be limited to the specific
term unless a clear manifestation of contrary intent is apparent.

Authority: RAJI (CIVIL) 4th CONTRACT 27 Construction Against the Party

Choosing the Words; Caldwell v. Consolidated Realty and Management Co., 668
P.2d 284, Nev.,1983 (Any ambiguity in a written contract is to be construed against part who prepared the agreement or selected the language used); Ringlet v. Bruton, 86 P.3d 1032 (Nev. Sup. Ct. 2004); De Shazer v. National RV Holdings, Inc. ---

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F.Supp.2d. ---, 2005 WL 1745444 (Dist. Ariz. 2005) (Under the warranty, certain
portions of the motor home are warranted by National RV, some items are 'covered under separate warranties' and some are 'not covered.' While National RV certainly sold the Tradewinds motor home as one complete unit, the warranty does specifically exclude some items from coverage. We agree with Plaintiff that there is an ambiguity as to whether those items labeled as 'covered under separate warranties,' are also
covered by National RV. Thus, as a matter of law, we construe this ambiguous

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language against the drafter and find that the items listed in the 'covered under separate warranties' section are not specifically excluded from National RV's warranty).

- Accepted
- Rejected
Modified

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Defendant objects to this instruction because it seeks to have the jury

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consider the intent of the parties. However, the intent of the parties is irrelevant. Workhorse drafted the limited written warranty. It did so without input from Plaintiff. Plaintiff and Workhorse did not negotiate the terms of the limited warranty with Workhorse or any of Workhorse's agents. In fact,
Plaintiff bought the subject motor home from Michael Hohl RV, which is not an

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authorized Workhorse repair facilty and is not authorized to sell Workhorse

products. Therefore, any negotiations between Plaintiff and the sellng
dealership cannot be imputed to Workhorse.

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With respect to interpreting the warranty, the jury is to look to the plain

language of the warranty and apply the terms as written. Chaurasia v. General
Motors Corp., 212 Ariz. 18, 126 P.3d 165, 169 (App. 2006); Hasek v.

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DaimlerChrysler Corp., 745 N.E.2d 627 (III. 2001); Dieter v. Chrysler Corp., 234

Wis. 2d 670, 678, 610 N.W.2d 832, 836 (2000). As an alternate instruction, see

Defendant's Proposed Instruction No.2.

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