Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Plaintiff's Proposed Jurv Instruction No.8
In order for Plaintiff to prove that Defendants breached an implied warranty of

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merchantability under the Magnuson-Moss Warranty Act, Plaintiff must show, by a
preponderance of the evidence, that the subject chassis was not fit for the ordinary
purpose for which chassis are used.

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Authority: 15 U.S.C. § 2308; N.R.S. § 104.2314.

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10 - Accepted
11 - Rejected

12 Modified
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Defendant objects to Plaintiff's instruction because it is confusing. The

instruction does not define terms such as "ordinary purposes." Further, the 16 instruction is an incorrect statement of the law and does clearly set forth the
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17 elements of the cause of action. Defendant proposes that the Court adopt its

18 proposed instruction no. 5 that sets out and clearly defines these confusing
19 terms for the jury. See also See Court's Order Granting Fleetwood's Motion for

20 Summary Judgment, p. 14:20-26; Nevada Contract Services, Inc. v. Sauirrel
21 Companies, Inc., 119 Nev. 157, 161,68 P.3d 896, 899 (Nev. 2003); Sessa v. Rieale,

22 427 F. Supp. 760, 770 (E.D. Pa. 1977); Monticello v. Winnebaao Industries and

23 Workhorse Custom Chassis, 369 F .Supp.2d 1350, 1360-61 (N.D. Ga. 2005);
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Lawrence, Larry; Lawrence's Anderson on the Uniform Commercial Code § 2314:144 (Updated June 2006).

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Plaintiff's Proposed Jurv Instruction No.9
Implied terms are as much a part of a warranty as express terms. One such
implied term is the duty of good faith and fair dealing. This duty is implied by law and

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need not be in writing. This duty requires that neither party do anything that prevents

the other party from receiving the benefis of their agreement. Here, if you find that

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Plaintiff 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, then Defendant breached its implied duty of good faith
and fair dealing and/or its written warranty to Plaintiff.

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Authority: RAJI (CIVIL) 4th CONTRACT 16 Good Faith and Fair Dealing; Pemberton v. Farmers Ins. Exchange, 858 P.2d 380 (Nev. 1993) (There is implied covenant of good faith and fair dealing in every contract.); Hilon Hotels Corp. v.

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Butch Lewis Productions, Inc., 862 P.2d 1207 (Nev. 1993) (Every contract imposes
upon the contracting parties the duty of good faith and fair dealing); Consolidated Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 971 P.2d 1251 (An implied

covenant of good faith and fair dealing is recognized in every contract under Nevada
law) (Covenant of good faith and fair dealing was implied in repair work performed for portable generator buyer by engine manufacturer, both under warranty and for which buyer paid); Morris v. Bank of America Nevada, 886P. 2d 454 (Nev. 1994)( Whether

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breach of the letter of contract exists or not, implied covenant of good faith is
obligation independent of consensual contractual covenants); Mohr Park Manor, Inc.

v. Mohr, 424 P.2d 101 (Nev. 1967)(ln construing contract, court must supply those
things which it is bound under law to imply in order to carry out intent of parties so as

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to make agreement lawful, effective and reasonable); Braucher, Contract Versus
contractarianism: The Regulatory Role of Contract Law, 47 Wash. & Lee L.Rev. 697, 699 (1990) ("Mediating between private ordering and social concerns, contract is a

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socioeconomic institution that requires an array of normative choices. . . The

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questions addressed by contract law concern what social norms to use in the
enforcement of contracts, not whether social norms will be used at all").

- Accepted
- Rejected
Modified

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Defendant objects to this instruction on the grounds that it is an untimely

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attempt by Plaintiff to amend her complaint by adding an additional claim for a

breach of the implied warranty of good faith and fair dealing. See Defendant's
Motion To Preclude New Legal Theories Raised After The Close Of Discovery.
Additionally, there is no case law cited in the instruction or that Defendant's

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counsel has been able to locate that applies the convent of good faith and fair
dealing to a limited warranty provided by a remote component manufacturer.

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Plaintiff's Proposed JUry Instruction No.1 0
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

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are nonetheless contrary to Plaintiff's reasonably expected benefit of the bargain,

namely that repairs be completed successfully in a timely manner so that Plaintiff
may use the Motor Home. Therefore, if you find that the repairs made by Defendant

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were untimely or were unsuccessful after a reasonable opportunity, then Defendant
breached its warranty. Further, Defendant can breach the implied duty of good faith

and fair dealing in its warranty without actually breaching an express term in the
warranty.
Authority: Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 808 P.2d 919 (Nev. 1991) (Where terms of contract are literally complied with but one party to contract deliberately contravenes intention and spirit of contract, that party can incur

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liabilty for breach of implied covenant of good faith and fair dealing); Perry v. Jordan, 900 P.2d 335 (Nev. 1995) (Under theory of implied covenant of good faith and fair
dealing, when one party performs contract in manner that is unfaithful to purpose of contract and justified expectations of other party are thus denied, damages may be awarded against party who does not act in good faith, with reasonable expectations

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being determined by various factors and special circumstances that shape these
expectations); Braucher, Contract Versus contractarianism: The Regulatory Role of Contract Law, 47 Wash. & Lee L.Rev. 697, 699 (1990)

- Accepted
- Rejected
Modified

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Defendant objects to this instruction on the grounds that it is an untimely

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attempt by Plaintiff to amend her complaint by adding an additional claim for a

breach of the implied warranty of good faith and fair dealing. See Defendant's
Motion To Preclude New Legal Theories Raised After The Close Of Discovery.
Additionally, there is no case law cited in the instruction or that Defendant's

counsel has been able to locate that applies the convent of good faith and fair
dealing to a limited warranty provided by

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a remote component manufacturer.
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Plaintiff's Proposed JUry Instruction No. 11
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

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breach, Plaintiff would necessarily be entitled to damages. 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

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express promise in a warranty. If you find that Defendant breached its express or
implied promise, you should award Plaintiff damages. That Defendant's warranty

purports to limit its remedy to repair is not controllng as the Magnuson-Moss
Warranty Act allows a consumer to seek damages.

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Authority: 15 U.S.C. §2131 0(d)(1); Rosell v. Silver Crest Enterprises, 436 P.2d
915 (App. 1968); cippollone, 505 U.S. at 525 ("a common-law remedy for a

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contractual commitment voluntarily undertaken should not be regarded as a
'requirement... imposed under State law' (rather) common understanding dictates

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that a contractual requirement, although only enforceable under state law, is not 'imposed' by the State, but rather is 'imposed' by the contracting party upon itself');

Hilon Hotels Corp. v. Butch Lewis Productions, Inc., 862 P.2d 1207 (Nev. 1993)
(Determination by jury that implied covenant of good faith and fair dealing was

breached will give rise to an award of contract damages); Cladianos v. Friedhoff, 240

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P.2d 208 (Nev. 1952) (Where it is other part to contract who is guilty of breach or

prevention of performance, complaining party is not limited to quantum meruit, and while he may elect to recover in quantum meruit he may also elect to stand upon contract); Braucher, Contract Versus contractarianism: The Regulatory Role of
Contract Law, 47 Wash. & Lee L.Rev. 697, 699 (1990).

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- Accepted
- Rejected
Modified

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Defendant objects to this instruction on the grounds that it is an untimely

attempt by Plaintiff to amend her complaint by adding an additional claim for a

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breach of the implied warranty of good faith and fair dealing. See Defendant's
Motion To Preclude New Legal Theories Raised After The Close Of Discovery.

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Additionally, there is no case law cited in the instruction or that Defendant's

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counsel has been able to locate that applies the convent of good faith and fair
dealing to a limited warranty provided by a remote component manufacturer.

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Plaintiff's Proposed JUry Instruction No. 12
In order for Plaintiff to prove damages here, Plaintiff must present evidence
that:
1) A written warranty was issued in connection with the

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sale of the consumer product (this element is admitted);
2) Direct or circumstantial evidence that the product

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exhibited symptoms of defect during the warranted period (this element is uncontested);
3) Plaintiff presented the consumer product to either

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Defendant and/or Defendant's authorized repair facilities with a request that the consumer product be repaired (this element is uncontested);
4) That Defendant violated an express or implied

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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

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Defendant;
5) Plaintiff was damaged. If you find 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.
Authority: According to the Ninth Circuit Court of Appeals Milicevic, supra; 15 U.S.C. §2131 0(d)(1) ("a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief. . .").

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- Accepted
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- Rejected
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Modified

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Defendant objects to the proposed instruction for a number of reasons.
First, it includes reference to a breach of an "implied warranty" or "implied
covenant of good faith and fair dealing." The implied warranty of

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merchantabilty has a separate instruction, and Plaintiff has failed to timely
amend her complaint to assert a claim for the implied warranty of good faith

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and fair dealing. Further, there is no case law that shows that the covenant of
good faith and fair dealing has been applied to a limited written warranty.

Plaintiff attempts to include a standard for the reasonable number, which
is contrary to the standards set forth in the Court's Order Dismissing

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Fleetwood, p. 6:14-21. Further, 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,

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

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Plaintiffs Proposed JUry Instruction No. 13
By attempting to repair under warranty, the warrantor admits the defective

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nature of the condisiont(s) of the product. If the warrantor fails to correct that defect(s), or fails to dos so within a reasonable opportunity, the warrantor breaches
its written warranty.

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Authority: Milicivic v. Fletcher Jones Imports, Ltd., 402, F.3d 912 (9th cir.
2005)(holding "(b)y attempting to repair the (parts) under warranty, (the warrantor)

admitted the defective nature of these conditions. Thus, when it failed to correct the
defects in the (parts), (the warrantor) breached the terms of its limited warranty in
violation of Section 231 0(d)(1 ).")

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12 - Accepted
13 - Rejected

14 Modified
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16 Defendant objects to this instruction because it attempts to shift the 17 burden of proof from Plaintiff to Defendant as to presenting evidence of a 18 defect in materials or workmanship. Plaintiff is required to present evidence
19 that her complaint is a defect in materials or workmanship covered under

20 Defendant's limited warranty. This instruction creates a presumption of defect

21 just because Plaintiff brings the motor home to a repair facilty with
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23 Further, this instruction also attempts to graft a reasonable number of
24 attempts standard into the elements necessary to show a breach of limited

25 written warranty. This is contrary to the standards set forth in the Court's
26 Order Dismissing Fleetwood, p. 6:14-21. Further, the reasonable number of
27 attempts standard set forth in Section 2304 of the MMWA only applies when

28 the manufacturer offers a "full warranty." In this case, Defendant offered a
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limited warranty, therefore, 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.

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Ga. 2005). As an alternate instruction, see Defendant's Proposed Instructions
Nos. 3 and 4.

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