Free Notice of Filing Proposed Pretrial Order - District Court of Arizona - Arizona

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Jennifer Basola (#231538) KROHN & MOSS, LTD. 111 West Monroe, Suite 711 Phoenix, AZ 85003 (602) 275-5588; (866) 385-5215 (facsimile) Attorneys for Plaintiff Negatu Molla (Bar No. 006254) David W. Williams (Bar No. 022764) BOWMAN AND BROOKE LLP Suite 1600, Phoenix Plaza 2901 North Central Avenue Phoenix, Arizona 85012-2761 (602) 643-2300 Attorneys for Defendant Workhorse Custom Chassis

UNITED STATES DISTRICT COURT DISTRICT OF PHOENIX LANE SENNETT, ) ) Plaintiff, ) v. ) ) FLEETWOOD MOTOR HOMES OF ) CALIFORNIA, INC. and WORKHORSE ) ) CUSTOM CHASSIS; INC., ) Defendants. ) ) ) ) No. CV04 0161 PHX ROS JOINT PRETRIAL ORDER (Assigned to Honorable Roslyn O. Silver)

The following is the Joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for October 27, 2006 at 1:30 pm A. TRIAL COUNSEL FOR THE PARTIES Plaintiff: Jennifer Basola of Krohn & Moss, Ltd., 5055 Wilshire Blvd., Suite 300, Los Angles, California 90036. Phone: (323) 980 ­ 2400, ext. 227. Facsimile: (866) 431-5575, Email: [email protected]; and Ryan Lee 1 of Krohn

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Mr. Lee has passed the Arizona Bar exam and the committee on moral character and fitness has recommended he be admitted to practice in the State of Arizona. It is anticipated he will be licensed by the start of trial and will participate.
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& Moss, Ltd., 711 W. Monroe, Suite 711, Phoenix, AZ 85003. Phone: (602) 2755588, ext 5826. Facsimile: (866) 385-5215, Email: [email protected]. Defendant: Negatu Molla of Bowman and Brooke LLP, 2901 N. Central Ave., Suite 1600, Phoenix, AZ 85012, Phone: (602) 643-2346, Facsimile: (602) 248-0947, Email: [email protected]; and David W. Williams of Bowman and Brooke LLP, 2901 N. Central Ave., Suite 1600, Phoenix, AZ 85012, Phone: (602) 643-2438, Facsimile: (602) 248-0947, Email:

[email protected]. B. STATEMENT OF JURISDICTION 1. 2. Jurisdiction in this case is based on 15 U.S.C. §2310(d) (1). Workhorse contests subject matter jurisdiction on the grounds that the

amount in controversy with respect to Plaintiff's claim against Workhorse does not rise to $50,000 pursuant to 15 U.S.C. § 2310(d)(3)(B) and that Plaintiff failed to exhaust her administrative remedies as required by 15 U.S.C. § 2304(a)(3). Workhorse has separately filed a motion to dismiss for lack of subject matter jurisdiction. C. NATURE OF THE ACTION 1. Plaintiff

This is a breach of warranty case wherein after purchase, Plaintiff experienced problems with the motor home and had it serviced under certain warranties. Plaintiff claims that the number of problems she has experienced with the unit have been excessive and that Defendant has had ample opportunity to cure them. Plaintiff claims that many defects with the motor home exist to this day and cannot be repaired to Plaintiff's satisfaction. The defects include: defective steering

/suspension; defective electrical system; persistent dying in flight condition; persistent stalling condition; defective air conditioning system compressor; defective fuel tank; defective fuel pump; defective generator hose; defective serpentine belt;

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and defective belt tensioner. Plaintiff seeks diminution of value damages and/or revocation of acceptance of the motor home under the Federal Magnuson-Moss Warranty Act. 2. Defendant

Workhorse contends it has complied with all of its obligations under the terms of the limited written warranty by making repairs to the chassis of the motor home each time the chassis was brought to an authorized repair facility and therefore there is no breach of the express warranty and implied warranty of merchantability. There were no Workhorse related "steering /suspension" or "electrical system" defects reported to an authorized Workhorse repair facility and are not repaired. The alleged "dying in flight condition" was found to be a result of dirt in the fuel system which is not related to any defect in material or workmanship as warranted by Workhorse and this problems were cured when the fuel pump and fuel filter were replaced at no cost to the plaintiff. The alleged "defective air conditioning system compressor" relates to plaintiff complaint regarding a Freon leak which was cured when the technicians replaced the AC compressor and recharged system at no cost to Plaintiff as per the Workhorse warranty. The allegation of a "defective generator hose" is not a defect at all and deals only with a one time situation where the generator hose was found to be twisted and kinked probably as a result of prior work by a mechanic in and around the area of the generator and was manually cured by straightening out the hose. The alleged defective serpentine belt and defective belt tensioner was one

complaint which was fixed by a replacement at no cost to Plaintiff pursuant to Workhorse's warranty. Plaintiff is not entitled to diminution of value damages and/or revocation of acceptance of the motor home under the Federal Magnuson-Moss Warranty Act. The proper measure of damages is the cost of repairs of any defects that were covered by Workhorse warranty and are not repaired after being presented to an

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authorized Workhorse repair facility. D. JURY/NON-JURY Both parties have requested a jury trial. E. CONTENTIONS OF THE PARTIES 1. Plaintiff Plaintiff alleges the following causes of action and will present evidence that: Written Warranty Breach and Implied Warranty of Merchantability Breach a) A written warranty was issued in connection with the sale of the

consumer product, which Defendant was prohibited by federal law from disclaiming and which arose from the transaction as a matter of Nevada Law; b) There exists direct or circumstantial evidence that the chassis

was not fit for the ordinary purposes for which a chassis is used and/or that the chassis exhibited symptoms of defect during the warranted period; c) Plaintiff presented the consumer product to either Defendant and/or Defendant's authorized repair facilities with a request that the consumer product be repaired; d) That the chassis was defective at the time of sale and/or that

Defendant violated an express or implied warranty term, for example, that Defendant (a) refused to perform a repair under warranty; (b) did not successfully repair a defect within a reasonable period of time; (c) attempted a repair but failed to successfully repair; or, (d) that Defendant's repair attempts resulted in a deprivation to Plaintiff of the reasonably expected basis of the bargain with Defendant; and e) Plaintiff was proximately damaged by Defendant's breach. If

Defendant has breached the duty of good faith and fair dealing, Plaintiff is entitled to recover damages provided by the evidence to have resulted naturally and directly form the breach and to recover consequential damages.
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Authority: Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 858 P.2d 380 (1993); Mitchell v. Bailey & Selover, Inc., 96 Nev. 147, 605 P. 2d. 1138 (1980); Milicevic v. Mercedes-Benz USA, LLC, 256 F.Supp.2d 1168 (2003) Relief: Plaintiff seeks return of all monies paid toward the Motor Home, an award of diminution in value damages, any equitable relief to which Consumer may be entitled, all attorney fees, expert fees and court costs incurred during the commencement and prosecution of this matter, incidental and consequential damages, and all other relief deemed just and appropriate by this Court. 2. Defendant On Plaintiff claims that Workhorse Custom Chassis breached its limited written warranty, plaintiff must prove by preponderance of the evidence the following: (a) the Chassis of motor home was covered by a limited written warranty issued by Workhorse Custom Chassis; (b) the chassis of the motor home has components defective in material, workmanship or factory preparation; (c) Plaintiff reported the alleged defect(s) to Workhorse Custom Chassis and/or its authorized

dealerships/repairing facilities; (d) Workhorse Custom Chassis failed or refused to make repairs or replacements of parts at no cost to the Plaintiff in accordance with the terms of the limited written warranty; and (e) Plaintiff sustained damages as a proximate cause of the alleged breach of the limited written warranty. See Court's Order Granting Fleetwood's Motion for Summary Judgment, p. 23:27; Nevada Contract Services, Inc. v. Squirrel Companies, Inc., 119 Nev. 157, 161, 68 P.3d 896, 899 (Nev. 2003); Chaurasia v. General Motors Corporation, 126 P.3d 165, 169 (Ariz.App. 2006); Cippolone v. Liggett Group, Inc., 505 U.S. 504, 525 (1992); Hines v. Mercedes-Benz USA, 358 F. Supp. 2d 1222, 1229 (D. Ga. 2005); Hasek v. DaimlerChrysler, 745 NE.2d 627, 630 (Ill. App. 2001). In addition, on the claim of breach of the implied warranty of merchantability, plaintiff must show the chassis of the motor home was not fit for the ordinary purpose for which it was used and that Workhorse failed to

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make repairs to defects in the chassis of the motor home. Defendant performed all needed repairs covered by the warranty at no cost to the plaintiff in accordance to the terms of the warranty, plaintiff has not suffered any damages as a result of any alleged breach of warranty and therefore judgment should be entered for the defendant and Plaintiff's breach of express and implied warranty claims should be dismissed. See Court's Order Granting Fleetwood's Motion for Summary Judgment, p. 14:20-26; Nevada Contract Services, Inc. v. Squirrel Companies, Inc., 119 Nev. 157, 161, 68 P.3d 896, 899 (Nev. 2003). Furthermore the chassis of the motor home does not need to be superior or perfect, but only fit for the ordinary purposes for which it is used. Sessa v. Riegle, 427 F. Supp. 760, 770 (E.D. Pa. 1977). That the motor home was driven across the entire continental United States is ample proof that it was indeed fit for the ordinary purpose for which such vehicles are sold. Furthermore, Workhorse manufactured only the chassis of the motor home. It neither built nor sold the motor home. Therefore, Workhorse as a provider of a

component part of the completed motor home cannot be charged with providing an implied warranty of merchantability to Plaintiff. That claim having been dismissed

against Fleetwood cannot survive against the component parts supplier and should likewise be dismissed. On Plaintiff's claim of violation of 16 C.F.R. § 702.3, Plaintiff must show that Defendant did not comply with its regulatory obligations set forth in 16 C.F.R. § 702.3(b)(1)(A) (referred to as "Duties of the Warrantor"). See 16 C.F.R. §

702.3(b)(1)(A). Specifically, Plaintiff must show that she did not receive a copy of the limited written warranty and that any disputed disclaimers are not clear and conspicuous in the limited written warranty. Plagens v. National RV, 328 F. Supp. 2d 1068, 1076 (D. Ariz. 2004); Hill, et al. v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997); Murphy v. Mallard Coach Co., 582 N.Y.S.2d 528,531, 179 A.D.2d 187, 193 (N.Y. 1992). Further, it is Workhorse's contention that Plaintiff does not have standing to

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assert violations of the 16 C.F.R regulations. In the event it is held that Plaintiff has standing, it is Workhorse's contention that it has complied with all of its regulatory obligations enumerated in 16 C.F.R. § 700. et al and therefore Plaintiff's claims based on violations of 16 C.F.R regulations should be dismissed. F. STIPULATIONS AND UNDISPUTED FACTS There are no stipulations or undisputed facts G. PLAINTIFF'S CONTENTION OF CONTESTED FACTS (i) Workhorse Custom Chassis is the manufacturer and warrantor of the subject motorhome's chassis. (ii. (iii) This matter involves a consumer and a manufacturer/warrantor. Workhorse Custom Chassis provided a written warranty designated on

its face as "Workhorse Custom Chassis Limited Warranty" and applies to the subject motor home's chassis. (iv) One of the terms of Workhorse's written warranty is to "cover[] repairs to

correct any chassis defect related to materials or workmanship occurring during the warranty period." (v) The subject motor home was presented to Workhorse Custom Chassis

authorized service facility(s) at least six (6) times with a request for warranty repairs. 1 (vi) Workhorse Custom Chassis received correspondence alleging various

problems with the motor home's chassis, seeking to revoke acceptance and demanding a refund for the same. 2 (vii) At least the following warranty repairs were performed pursuant to the

Workhorse Limited Warranty: Repair Order No. 23288 in May of 2003 at 9,541
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See Defendant's Initial Disclosure Statement, Bates 0001-0004.

The parties may seek to redact portions of this letter and Workhorse may contest the legal validity of the letter.
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miles; Repair Order No. 1731618 in May of 2003 at 9,541 miles; Repair Order No. 21877 in June of 2003 at 11,684 miles; Repair Order No. 36531 in June of 2003 at 14,733 miles; Repair Order No. 185700 in June of 2003 at 10,448 miles; Repair Order No. 17809 in July of 2003 at 12,089 miles; and Repair Order No. 165567 in August 2003 at 20,990 miles. All these repairs were performed to cure the defects complained of by Plaintiff and were done so by Workhorse's authorized service facilities and paid for by Workhorse Custom Chassis pursuant to its written warranty. 1 (viii) Workhorse Custom Chassis provides its authorized repair facilities with information regarding how to document warranty repairs and/or write repair orders. 2 (ix) Workhorse Custom Chassis did not authorize or pay for any goodwill

repairs on the Motor Home. 3 (x) Workhorse's Limited Warranty requires Plaintiff allow a reasonable

period of time for repairs to be completed and defines a reasonable period of time as not to exceed thirty days. (xi) The Motor Home underwent at least six (6) repairs for the chassis,

including but not limited to those identified on repair order no. 23288, repair order no. 1731618, repair order no. 21877, repair order no. 36531, repair order no. 185700, repair order no. 17809, and repair order no. 165567. (xii) Defects existed within the Motor Home.

Plaintiff contends that substantial defects existed and continued to exist as evidenced by the Motor Home's symptoms of defect presented to Workhorse for repair, Workhorse attempting to repair the defects under warranty, documents

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Defendant's Initial Disclosure Statement, Bates 0001-0004. See Defendant's Response to Plaintiff's Request to Admit No. 10. See Defendant's Response to Plaintiff's Request to Admit No. 15
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authored by Workhorse authorized repair agents evidencing the warranty repair attempts, Workhorse's statements and/or Workhorse's repair facilities' statements indicating defects in the Motor Home; Workhorse paying warranty claims for the repair attempts; and multiple witnesses' (both factual and expert) testimony as to the existence of the multiple defects in the Motor Home. (xiii) Plaintiff afforded Workhorse through its statutorily or contractually designated representative(s) a reasonable opportunity to cure as required by the Act as a prerequisite to suit and as required by the plain language of Workhorse's written warranty. Plaintiff contends the Motor Home was presented for repair to Workhorse or its designated representatives for at least six (6) separate opportunities to cure and for at least forty-five (45) days in Workhorse's designated representatives' custody and control. (xiv) Workhorse through its authorized repair facilities refused to cure, or were afforded a reasonable opportunity to properly cure the nonconforming goods and failed to successfully do so, within a reasonable opportunity. Plaintiff contends that on no less than six (6) separate occasions, Plaintiff afforded Workhorse's designated representatives opportunities to cure a defective chassis condition pursuant to Workhorse's offered optional remedy promising to repair or replace parts defective in materials or workmanship. After each opportunity to cure the defective chassis condition persisted. (xv) The chassis defects are the responsibility of Workhorse Custom Chassis, Inc.

Plaintiff contends that the chassis defects are the responsibility of Workhorse Custom Chassis, Inc. as this Honorable Court found as a matter of law the defects were not the responsibility of Fleetwood Motor Homes of California. (xvi) Plaintiff paid for the Motor Home as warranted but received less value than he bargained for.

Plaintiff Contends that with its safety related defects, the value of the Motor

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Home as received was not that of a new warranted Motor Home but rather was valued at approximately seventy-five (75) percent of the wholesale value of the Motor Home. (xvii) A breach occurs where the defects were never cured per the terms of the warranty. Plaintiff contends that even if the terms of the warranty were to control, 1 Defendant's failure to cure the defects constitutes a breach of warranty as the Workhorse Limited Warranty obligates Plaintiff to allow a reasonable period of time to cure which is a mutual obligation. Further, the Workhorse warranty specifically defines a reasonable period of time and under the doctrine ejusdem generis, Workhorse's specific definition of this phrase later in its warranty is controlling as to what this term means in unspecified places. H. DEFENDANT'S CONTENTION OF CONTESTED FACTS 1. Fuel Filter and Fuel Pump: Plaintiff, during a cross-country trip,

between California and South Carolina brought vehicle in for repairs on May 23, 2003, June 16, 2003 and June 18, 2003 with complaints of the chassis stalling. Workhorse facilities diagnosed the concerns as related to the fuel filter and fuel pump. Workhorse has properly made all repairs to address the complaint with the fuel filter and fuel pump of the chassis in accordance with the terms of the limited written warranty. The last repair to the fuel pump was on June 16, 2003 when the motor home had about 13,000 miles on it. There have been no other repairs to the fuel system, Plaintiff testified at her deposition that the condition did not reoccur following her last repair on June 16, 2003, and as of January 5, 2005 (the inspection by Workhorse's expert), the motor home had over 21,000 on its odometer.

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Plaintiff contends there is a reasonableness requirement to limited repair remedies pursuant to the Act, Code and/or common law, but frames this issue per the Court's Order on summary judgment which is the law of the case.
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2.

Air-conditioner: Workhorse has properly made all repairs to address

the complaint with the air-conditioner that is part of the chassis in accordance with the terms of the limited written warranty. One repair was made to the air conditioner on June 3, 2003. No repairs have been made since that date, and Plaintiff has not presented the chassis at an authorized service facility with any additional complaints about the air-conditioner. 3. Fuel-Line to the Generator: Workhorse has properly made all repairs

to address the complaint with the fuel-line that runs to the Onan generator in accordance with the terms of the limited written warranty. Workhorse's limited

warranty does not cover the generator, and only extends to the fuel line that runs from the fuel tank to the generator. One repair was made to the generator fuel-line on June 23, 2003 to "unkink" the fuel-line. 4. Serpantine Belt and Belt Tensioner: Workhorse has properly made

all repairs to address the complaint with the serpentine belt and belt tensioner. One repair was made to address this complaint on August 29, 2003. repairs have been made to address any of these complaints. 5. Damages: Plaintiff did not sustain any damages that are properly No additional

recoverable under the term of the limited written warranty. 6. Excluded Damages: Plaintiff is not entitled to recover any damages

that have been excluded under Workhorse's limited warranty. Workhorse's Limited Warranty specifically provides: Economic loss or extra expense is not covered. Examples include: loss of vehicle use, inconvenience, storage, payment for loss of time or pay, vehicle rental expense, lodging meals, or other travel costs, state or local taxes required on warranty repairs. 7. Workhorse has not issued any statements of customer satisfaction that

fall within the bounds of 16 C.F.R. § 700.5, and Plaintiff has not relied upon any statements from Workhorse in deciding to purchase the chassis of the motor home.

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8.

Workhorse is only responsible for repairs made by its authorized repair

facilities. Authorized repair facilities are only agents of Workhorse for that purpose only. They are not agents of Workhorse for the purpose of selling the motor home and Workhorse is not responsible for any information communicated by the selling dealership when the subject motor home was purchased. Further, the selling dealer, Michael Hohl RV is not an authorized Workhorse repair facility or dealer. 9. Workhorse is responsible for the chassis of the motor home only, and

has no control over the motor home once it leaves its custody and control. Workhorse has no control on what materials are added to the chassis or any alterations to the chassis by another manufacturer. 10. I. Plaintiff received a copy of the Workhorse limited warranty.

ISSUES OF LAW IN CONTROVERSY A. (i) Plaintiff Implicit in the Workhorse Limited Warranty and applicable to both Plaintiff and Workhorse is the duty of good faith and fair dealing so that neither party is deprived of the reasonably expected basis of its bargain with the other.

Plaintiff contends that Defendant Workhorse wishes to make this a contract action based on this Court's Order granting Fleetwood summary judgment. If so, contracts are not controlled wholly by their express terms but rather also by terms ordinarily implied into all contracts, for example, the duty of good faith and fair dealing. This duty requires that neither party do anything that prevents the other party from receiving the benefits of their agreement. It is Plaintiff's position she did not receive the benefit of Defendant's repair of replacement warranty remedy because repairs undertaken did not meet Plaintiff's reasonable expectation of timeliness and/or success. Further, it is Plaintiff's position Defendant can breach the implied duty of good faith and fair dealing in its warranty by acting in ways not expressly excluded by the warranty's terms but which are nonetheless contrary to

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Plaintiff's reasonably expected benefit of the bargain and that Defendant can breach the implied duty of good faith and fair dealing in its warranty without actually breaching an express term in the warranty. Plaintiff does not assert this as an independent claim but instead asserts it as part of his breach of written warranty claim, and this duty is part of every warranty contract and requires no proof in addition to that which Plaintiff would need to prevail at trial here under the law of the case: that Defendant failed to honor the terms of its written warranty. (ii) Plaintiff is entitled to recover diminution in value, incidental, consequential and cover damages if she proves a breach of warranty.

Plaintiff contends that inherent in every warranty is a remedy for a breach. If Plaintiff can prove Defendant breached its express warranty and that Plaintiff was harmed by such a breach, Plaintiff would necessarily be entitled to damages. Milicevic v. Mercedes-Benz USA, LLC, 256 F.Supp.2d. 1168 (2003). Further, because an implied promise is as much a part of a warranty as written one, a breach of an implied promise in a warranty is subject to the same penalties as a breach of an express promise in a warranty. That Defendant's warranty purports to limit its remedy to repair is not controlling as the Magnuson-Moss Warranty Act allows a consumer to seek damages. Plaintiff is entitled to recover diminution in value, incidental, consequential and cover damages. Id. Plaintiff and Plaintiff's expert will offer testimony and evidence as to these damages as previously disclosed in accordance with the rules of civil procedure. (iii) Defendant's statutorily optional remedy of repair or replacement of non-conforming goods or parts failed of its essential purpose as Plaintiff is without the reasonably expected basis of his bargain, a Motor Home usable to her.

Plaintiff contends that Workhorse's warranty, a non-exclusive remedy
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involving repair or replacement of non conforming parts, failed of its essential purpose because Plaintiff never received conforming goods satisfying the basis of his bargain despite affording Workhorse through its designated representatives a reasonable opportunity to cure all defects. NRS 597.610; NRS 597.630; Waddell v. Wheeler's Las Vegas RV, 125 P.3d 1160, 2006 Nev. LEXIS 3 (2006); Milicevic v. Mercedes-Benz USA, LLC, 256 F.Supp.2d. 1168 (2003). B. 1. Defendant Plaintiff does not have standing to assert a cause of action for

violations of 16 C.F.R. §§ 700.5 and 702.3. The Court has already ruled that Plaintiff has no standing to assert these claims, and therefore Plaintiff is barred from arguing them at trial due to the law of the case theory. See Court's Order Granting

Fleetwood's Motion for Summary Judgment, p. 15:19-16:15; See also Workhorse's Motion To Preclude Reference to Violations of 16 C.F.R. §§ 700.5 and 702.3. 2. Plaintiff does not have any evidence that warranted defects in the

chassis still exist after Workhorse's repairs. Evidence that the defects continue to exist is an essential element in establishing a breach of limited warranty. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 3. Damages are an essential element of a breach of warranty claim and

Plaintiff has not suffered any damages as a result of Workhorse's alleged breach of warranty. See Workhorse's Motion to Preclude Valuation Testimony by Plaintiff; Kim v. Mercedes-Benz USA, 818 N.E.2d 713, 724 (Ill. App. 2004), Monroe v. Hyundai Motor America, 606 S.E.2d 894, 897 (Ga.App. 2004), Fed. R. Evid. 701, 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 4. The measure of damages should be limited to cost of repairs resulting

from the alleged breach of warranty. Plaintiff will claim diminution in value is the proper measure of damages and that it can be determined by looking at the loss in "market value" of the entire motor home. Workhorse believes diminution of value

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damages is not appropriate against a component manufacture. 5. Incidental and consequential damages have been properly excluded by Plaintiff's allegation that the

the limited warranty and not available to plaintiff.

contract failed in its essential purpose has no merit. Plaintiff must show that the disclaimer of incidental damages is unconscionable, which is a question of law for the Court, and not a question of fact for the jury. See Workhorse's Motion To

Preclude Reference To Damages Excluded By Workhorse's Limited Warranty. 6. Plaintiff attempts to assert a claim for revocation of acceptance for the

first time in the joint pretrial statement should be rejected. Plaintiff now asserts for the first time these causes of action in the joint pretrial order. First, this cause of action was never disclosed or pled in Plaintiff's amended complaint. Second,

revocation of acceptance may be available against a selling dealer but is not available against a component manufacturer who neither sold the product to the selling dealer nor to the plaintiff. 7. Likewise, Plaintiff attempts to assert a claim for breach of the duty of

good faith and fair dealing for the first time in the joint pretrial statement should also be rejected. This claim has never been properly disclosed and Plaintiff has never amended her complaint to add the claim. Further, there is no Nevada law that recognizes this cause of action in a breach of warranty lawsuit involving a remote component manufacturer. J. SEPARATE TRIAL OF ISSUES No separate trial of any of the issues is advisable or feasible. K. WITNESSES Each party understands that it is responsible for ensuring that the witnesses it wishes to call to testify are subpoenaed. Each party further understands that any witness a party wishes to call shall be listed on that party's list of witnesses; the party cannot rely on witnesses having been listed or subpoenaed by another party.

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Plaintiff: 1. Plaintiff. Plaintiff will testify that on or about March 27, 2003, she

acquired a 2003 Fleetwood Pace Arrow 37A ("37A"). The 37A was warranted by Workhorse Custom Chassis, LLC ("Defendant"). Plaintiff will testify that she acquired the 37A during the duration of Defendant's written and implied warranties, which included various promises and coverage as well as standard warranties outlined in various writings by Defendant (print and electric). Plaintiff will testify that on or about the aforementioned delivery date, she took possession of the 37A. Thereafter, the 37A developed defective steering /suspension; defective electrical system; persistent dying in flight condition; persistent stalling condition; defective air conditioning system compressor; defective fuel tank; defective fuel pump; defective generator hose; defective serpentine belt; and defective belt tensioner. Plaintiff will testify that as a result of the above

mentioned defects, non-conformities, and/or conditions, she returned the 37A to Defendant's authorized repair facility(ies) for repair pursuant to Defendant's promise to repair. These repairs were necessitated by manufacturing defects in materials or workmanship and performed by Defendant. Despite these repeated repair attempts and despite Defendant's being provided a reasonable opportunity to cure, Plaintiff's 37A remains in a defective and non-conforming condition. This defective and nonconforming condition substantially impairs(ed) the use, value and/or safety of the 37A to Plaintiff, severely diminishes(ed) the value of the 37A, prevents(ed) Plaintiff from utilizing the 37A for its ordinary purposes as intended by Plaintiff at the time of acquisition, and causes Plaintiff direct harm and damage. 1 Plaintiff will also be called to offer lay person testimony regarding Plaintiff's subjective belief as to the diminished value of the subject vehicle at the time the

See fn. 1 as to the validity of Defendant's disclaimers as to certain damages and Defendant's other remedy limitations.
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vehicle was purchased. Plaintiff will testify that the value of the subject vehicle was diminished by as much as 50% (or less) of the purchase price. Plaintiff will testify that she would not have paid the contract price for the subject vehicle had she been aware of the numerous mechanical defects and non-conformities that would arise in the vehicle. Plaintiff will base this testimony on the repair history as documented in the repair records, and current problems with the vehicle at the time of arbitration and/or trial; Plaintiff's experience purchasing, trading-in and/or selling vehicles; Plaintiff's knowledge of comparable vehicles; and/or Plaintiff's knowledge of the current price of the vehicle based on recognized valuation guides that are available through the Internet. Plaintiff may and reserves the right to also testify regarding any affirmative defenses raised by Defendants and as to any other matters timely disclosed. 2. Bill Trimmell (expert). Mr. Trimmel will testify to the vehicle's

diminished value based on its repair history. Plaintiff's expert(s) will also testify as to other issues including, but not limited to, the basis for his opinion which may include testimony about defects, Technical Service Bulletins, devaluation, substantial impairment, warranty coverage, cost of repair, reasonableness of the repair attempts, any and all technical documents, all technical matters, technician and expert opinions, industry customs, industry standards, diagnostic and/or repair criteria, diagnostic and/or repair standards, matters related to Defendant's foundation for testimony of non-occurrence of events and/or lack thereof, repair orders, repair order documentation, repair order interpretation, technical manuals, technical manual interpretation, repair attempt related documentation, defendant's repair agent's methods and customs. 3. B. 1. Mr. Rob Zullian as adverse and potentially hostile Defendant Witnesses to be called at trial by Defendant Workhorse Custom
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Chassis a. Mr. Robert Zulian will be called as an expert and company representative witness by Workhorse. He is the Regional Service Manager for the Great Plains Region, and in that capacity, he is responsible for approval for warranty claims submissions by authorized repair facilities and consults with authorized repair facilities about technical issues related to Workhorse products. Further, Mr. Zulian has received training from Workhorse on all technical aspects of Workhorse products. Prior to employment with Workhorse, Mr. Zulian was employed by

General Motors Corporation and assigned to its Technical Assistance Program Mr. Zulian also has a Bachelor of Arts in Automotive Parts and Service Management. He will testify about the warranty repair history of the chassis of Plaintiff's motor home. He will base his testimony on his review of the repair records as it pertains to the chassis portion of Plaintiff's motor home, the warranty history for the chassis portion of the motor home, Plaintiff's expert's report, and conversations with service advisor's from WCC's authorized service dealerships, and his inspection of Plaintiff's motor home on October 20, 2004. He is expected to testify consistent with his written report, identified by Bates Nos. Sennett 0074-75. Mr. Zulian may also offer testimony about Workhorse's warranty claim's procedure, including but not limited to the limited warranty provisions, parts availability, and other customer service procedures. Mr. Zulian may also testify about other portions of the motor home that Workhorse does not manufacture to show what Workhorse's limited warranty does and does not cover. No stipulations have been reached between the parties on

expert testimony at trial. 3. Unlikely To Be Called At Trial a. Bryan Gaughan

Mr. Gaughan is a warranty claims administrator and was disclosed as an expert by Defendant Fleetwood. Mr. Gaughan is an out of state witness, and

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Workhorse has no means to compel him to appear by subpoena and has been unable to secure his voluntary appearance. Mr. Gaughan was deposed on January 12, 2005. Workhorse will likely read portions of Mr. Gaughan's deposition that have been designated and are relevant to any complaints related to the chassis. Workhorse's deposition designations are attached as Exhibit D. b. Albert Carranza

Mr. Carranza is an employee with Fleetwood and was disclosed as an individual knowledgeable about the motor home construction process. Mr. Carranza is an out of state witness, and Workhorse has no means to compel him to appear by subpoena and has been unable to secure his voluntary appearance. Mr. Carranza was deposed on August 31, 2005. Workhorse reserves the right to read those portions of Mr. Carranza's testimony relevant to Workhorse products or any alterations made to a chassis after it leaves Workhorse's custody and control. Workhorse's deposition designations are attached as Exhibit D. L. EXPERTS 1. 2. above) M. 1. EXHIBITS Plaintiff's Exhibits. See Exhibit A. 2. Defendant's Exhibits. See Exhibit B. 3. As to the following exhibits, the party against whom the exhibit is to be offered Plaintiff's Expert: Bill Trimmell (see summary under Section K above) Defendant's Expert: Robert Zulian (see summary under Section K

objects to the admission of the exhibit and offers the objection stated below: a. Defendant's Objections to Plaintiff's Exhibits: See Exhibit A.

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b.

Plaintiff's Objections to Defendant's Exhibits: See Exhibit B.

N.

MOTIONS IN LIMINE AND REQUESTED EVIDENTIARY RULINGS Plaintiff has filed the following motions in limine: 1. 2. Plaintiff's Motion to Bar Criminal Convictions. Plaintiff's Motion to Preclude Workhorse from claiming chassis related defects repairs performed by its authorized dealer were not covered under warranty. 3. Plaintiff's Motion to Bar Workhorse from claiming at trial that dealer installed accessories is not covered under the Workhorse warranty. 4. Plaintiff's Motion to Bar Civil Convictions

Workhorse has filed the following motions in limine: 1. Workhorse's Motion to Preclude Reference to Violations of 16 C.F.R. §§

700.5 and 702.3 2. 3. Workhorse's Motion to Preclude Valuation Testimony by Plaintiff Workhorse's Motion to Preclude Reference to Damages Excluded by

Workhorse's Limited Warranty 4. Workhorse's Motion to Preclude Valuation Opinions of William Trimmell

Workhorse set forth additional evidentiary objections to specific exhibits on Plaintiff's exhibit list. O. PROBABLE LENGTH OF TRIAL (18 hrs) 9 hours for Plaintiff's case. 9 hours for Defendant's case. P. STIPULATED PROPOSED STATEMENT OF THE CASE, JURY INSTRUCTIONS, VOIR DIRE QUESTIONS, AND PROPOSED FORMS OF VERDICT FOR JURY TRIALS The joint Proposed Jury Instructions, joint Proposed Voir Dire Questions, and

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Proposed Forms of Verdict shall be filed in accordance with the instructions contained in the Order Setting Final Pretrial Conference. Q. MISCELLANEOUS Workhorse has no other issues to bring to the Court's attention. R. MODIFICATION OF ORDER The Court may, in order to prevent manifest injustice or for good cause shown, at the trial of the action or prior thereto upon application of counsel for either party, made in good faith, or upon the motion of the Court, modify the Final Pretrial Order upon such conditions as the Court may deem just and proper.

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APPROVED AS TO FORM AND CONTENT: _s/Jennifer Basola______________ Attorney for Plaintiff __s/David Williams________________ Attorney for Defendant

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS ______ DAY OF ________________________, 2006.

_______________________________________ Roslyn O. Silver

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