Free Proposed Jury Instructions - District Court of Arizona - Arizona

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DEFENDANT'S PROPOSED INSTRUCTION NO.6
INSTRUCTION OF DAMAGES

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The Court's instructions as to damages are not to be interpreted by you as an

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expression of opinion on my part as to ultimate liability in the case. The Court's
instructions are given solely to guide you in arriving at the amount of damages, if any,

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and then only if you find from a preponderance of the evidence and under the
instructions of the Court that a part is entitled to recovery any damages proximately

caused by the other part. If in your deliberations and consideration of the evidence
and instructions of the Court, you find that a part is not entitled to recover any

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damages, then you are to disregard entirely the Court's instructions given you
concerning that part's damages.

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Source: 2 E. Devitt & C. Blackmar, Federal Jurv Practice and Instructions, S
71.16, 74.02 (3d Ed. 1977) (Modified); Jerrold Elecs. Corp. v Westcoast

Broadcastina co., 341 F.2d 653 (9th Cir.); Delaware Supplv Co. v American
Tobacco Co., 184 F. Supp. 440 (E.D. Pa. 1960); Atlas Blda. Prods.. Co. v Diamond
Block & Gravel Co., 269 F2d 950 (10th Cir. 1959.

19 - Accepted
20 - Rejected

21 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

issue.

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DEFENDANT'S PROPOSED INSTRUCTION NO.7
MEASURE OF DAMAGES

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If you find that Workhorse Custom Chassis is liable to Plaintiff for breach of the

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limited written warranty, you must then decide the amount of money that wil
reasonably and fairly compensate Plaintiff for the damages proved by the evidence to

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have resulted naturally and directly from the breach of the warranty contract. Plaintiff
may recover as damages her reasonable expenditure for repairs to the chassis of the

motor home which are required to be performed as a result of Workhorse Custom
Chassis' breach of warranty.

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Source: Manual of Model Jury Instructions for the Ninth Circuit, 7.1 (1993)

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(modified); Hvundai Motor America. Inc. v. Goodin, 822 N.E. 2d 947, 951 (Ind.
2005); Jones v. Abriani, 350 N.E. 2d 635, 646, (Ind. 1976); Vallev Transportation
System v. Reinart, 67 Ariz. 380, 197 P.2d 269 (1948); Downs v. Shouse, 18 Ariz.

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App. 225, 501 P.2d 401 (App. 1972); Melvin v. Stevens, 10 Ariz. App. 357, 458
P.2d 977 (1969).

18 - Accepted
19 - Rejected

20 Modified
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Plaintiff objects to Defendant's Proposed Jury Instruction. The standard

measure of damages is the difference at the time and place of acceptance
between the value of the Motor Home warranted and the value the Motor Home

would have had if it had been as warranted. Brown v. Lindsay, 228 P .2d 262
(Nev. 1951); (see Plaintiff's Proposed Jury Instructions nos. 15-19).

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DEFENDANT'S PROPOSED INSTRUCTION NO.8

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DAMAGES - REASONABLE - NOT SPECULATWE
Damages must be reasonable. If you should find that the plaintiff is entitled to a

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verdict, you may award only such damages as wil reasonably compensate plaintiff
that she has sustained as a proximate result of the breach of warranty.
You are not permitted to award speculative damages.

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E. Devitt, C. Blackmar, M. Wolff, Federal Jury Practice & Instructions, Civil §
85.14 (4th ed. 1987); Hiaains v. Guerin, 74 Ariz. 187, 245 P.2d 956 (1952);

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Hatchimonii v. Homes, 38 Ariz. 535, 3 P.2d 271 (1931); Walter v. Simmons, 169
Ariz. 229, 221, 818 P.2d 214, 236 (App. 1991); Nelson v. Cail, 120 Ariz. 64, 67,
583 P.2d 1384, 1387; (App. 1978).

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14 - Accepted
15 - Rejected

16 Modified
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Plaintiff objects to Defendant's Proposed Jury Instruction. Defendant
has not accurately stated the law. Brown v. Lindsay, 228 P.2d 262 (Nev.,1951)

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(Generally, rule against recovery of uncertain damages is directed against uncertainty as to existence or cause of damage rather than as to measure or

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extent); (see Plaintiff's Proposed Jury Instructions nos. 15-19). The standard

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measure of damages is the difference at the time and place of acceptance
between the value of the Motor Home warranted and the value the Motor Home

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25 would have had if it had been as warranted. ¡d.
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DEFENDANT'S PROPOSED INSTRUCTION NO.9
DISCLAIMED DAMAGES

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Under the Magnuson-Moss Warranty Act, a warrantor is allowed to expressly
disclaim or limit damages by the terms of the warranty. If you find in that Workhorse

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Custom Chassis has breached the limited written warranty, you must determine the
damages sustained by Plaintiff as a result of Workhorse Custom Chassis' breach of

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its written limited warranty. In determining Plaintiffs damages, you may not award
any incidental or consequential damages, damages for aggravation and

inconvenience or loss of use damages if they have been expressly disclaimed in the
limited written warranty.

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Source: KruCler v. Subaru of America. Inc., 996 F. Supp. 451, 458 (E.D. Pa.
1998); SeekinCls v. Jimmv GMC of Tucson. Inc., 130 Ariz. 593, 602, 638 P.2d 210,
216 (1981); Nairan Co. for General ContractinCl and TradinCl V. Fleetwood
Enterprises, 659 F. Supp. 1081, 1100 (S.D. Ga. 1986)

17 - Accepted
18 - Rejected

19 Modified
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Plaintiff objects to Defendant's Proposed Jury Instruction. A disclaimer

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of incidental and/or consequential damages is invalid if Defendant's limited
repair or replace remedy failed of its essential purpose. Line R. Co. V. Fruehauf

Corp., 547 F.2d 1365 (8th Cir. 1977); 15 U.S.C. 2310 (d); 15 U.S.C. 2311. (see
Plaintiffs Proposed Jury Instruction no. 19).

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RESPECTFULLY SUBMITTED this 28th day of August, 2006.
BOWMAN AND BROOKE LLP

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By: Isl David W. Willams
Negatu Molla

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2901 North Central Avenue

David W. Wiliams Suite 1600, Phoenix Plaza

Attorneys for Defendant Workhorse Custom Chassis

Phoenix, Arizona 85012-2761

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CERTIFICATE OF SERVICE

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I hereby certify that on the 28th day of August, 2006 I caused the attached
document to be electronically transmitted to the Clerk's Office using the CM/ECF

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System for filing and transmittal of a Notice of Electronic Filing to the following
CMIECF registrants:

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7 KROHN & MOSS, L TD
8 111 W Monroe,85003 711 Phoenix, AZ Suite

Jennifer Basola

9 Attorney for Plaintiff
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Isl Judv Kaelin

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