Free Trial Brief - District Court of Arizona - Arizona

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Jennifer Basola (#23158) KROHN & MOSS, LTD. 5055 Wilshire Blvd. Suite 300 Los Angeles, CA 90036 (323) 988-2400 (866) 431-5575 (facsimile) Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT, Plaintiff, v. WORKHORSE CUSTOM CHASSIS, INC. Defendant. ) No. CV04 0161 PHX ROS ) ) PLAINTIFF'S TRIAL ) MEMORANDUM ) ) )

I.

PLAINTIFF WAS REQUIRED TO AFFORD WORKHORSE A REASONABLE OPPORTUNITY TO CURE AS A PREREQUISITE TO SUIT UNDER THE ACT, AND WORKHORSE MUST PROVE AS AN AFFIRMATIVE DEFENSE PLAINTIFF FAILED TO GIVE SUCH AN OPPORTUNITY. This Honorable Court held the Act imposes no reasonableness duty on limited

warrantors, and Plaintiff does not challenge that ruling herein as that is now the law of the case. The issue Plaintiff raises herein is different, i.e., whether Plaintiff was required to afford Workhorse a reasonable opportunity to cure as a prerequisite to the bringing suit under the Act. 15 U.S.C. §2310(e) ("[n]o action . . . may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract . . . unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply"). Plaintiff alleges he provided a reasonable opportunity to cure, ¶¶8,15 Complaint, and Workhorse

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bears the burden of proving the contrary as an affirmative defense. F.R.C.P. 8(c). In this regard, it should be noted the Workhorse written warranty expressly mandates Plaintiff provide a reasonable time to cure any defects and as such, again Workhorse would bear the burden of proving Plaintiff did not meet this warranty condition. II. 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. FURTHER, IF WORKHORSE DESIRES THIS ACTION BE DECIDED BY REFERNCE TO ITS "WARRANTY CONTRACT," THEN ALL RULES OF CONTRACT CONSTRUCTION APPLY. Workhorse wishes to make this a contract action based on this Court's Order granting Fleetwood summary judgment and the recent Chaurasia opinion, but only wants

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to reap the benefits of making this action a contract claim, not any of the repercussions. Specifically, Workhorse desires to take this matter out of the statutory realm and have it decided solely on its written warranty's express terms which the Act does allow 1 ("Subject to subsections (a)(3) and (e) of this section, 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--"), but refuses to acknowledge the immutable legal principle a contract's implied terms are as much a part

Plaintiff files no separate claims for breach of contract and seeks no separate relief for breach of contract but instead suggests that if what Defendant's warranty requires is the operative inquiry, then the warranty requires more than that expressly stated and implicitly requires good faith and fair dealing so the parties reasonable expectations are met. In other words, if the duty of

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of the contract as are the written terms, that each and every contract implies a duty of good faith and fair dealing so that neither party is deprived the reasonably expected basis of the bargain, that 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 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) 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. Further, if this matter is to be decided under contract principles, several other immutable rules of law would also inure to this claim, including that the parties intent defines the plain language of the warranty; that if there are questions as to the parties intent the surrounding facts and circumstances help define that intent; that to determine what the parties intended the terms of a warranty to mean, factors to consider include the language of the written agreement, the acts and statements of the parties themselves before any dispute arose, the parties' negotiations, any prior dealings between the parties,

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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. Likewise, where the parties intent as to a particular written provision is unclear, the

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following rules of law apply: (a) in choosing between the possible meanings of language in a written agreement, the meaning that operates against the interests of the party who

good faith and fair dealing is implied into Defendant's written warranty, the failure to honor the

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supplied the words is generally the preferred meaning; (b )

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unclear terms are

interpreted against the drafter of the warranty; and (c) 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. Finally, although Defendant disclaims all damages and limits all remedies, inherent in every contract is a remedy for breach. 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. III. PLAINTIFF IS ENTITLED TO RECOVER DIMINUTION IN VALUE, INCIDENTAL, CONSEQUENTIAL AND COVER DAMAGES IF HE PROVES A BREACH OF WARRANTY. Inherent in every warranty is a remedy for a breach. If Plaintiff can prove Defendant breached its written warranty, and Plaintiff was harmed by such a breach,

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Plaintiff would necessarily be entitled to damages. 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. Further, because Workhorse's warranty is actually only a remedy for repair or replacement of non conforming parts, that limitation of damages is invalid if the remedy fails of its essential purpose. N.R.S. 104.2719; Muller v. Winnebago, 318 F. Supp. 2d 844 (D. Ariz. 2004); Goelz v Winnebago and Freightliner, CV-03-1290-PHX-SRB.

same would be actionable under §2310(d)(1).
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RESPECTFULLY SUBMITTED on this 28th day of August, 2006. By: _s/Jennifer Basola_________ Jennifer Basola KROHN & MOSS, LTD. 5055 Wilshire Blvd., Suite 300 Los Angeles, CA 90036 Attorney for Plaintiff(s) Filed electronically on this 28th day of August, 2006, with: United States District Court CM/ECF system Copy mailed on this 28th day of August, 2006, to: Hon. Roslyn O. Silver United States District Court, District of Arizona Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix AZ 85003 Notification sent electronically via the Court's ECF system this 28th day of August, 2006 to: Mr. Negatu Molla Mr. David Williams Attorney Bowman and Brooke, L.L.P. 2901 North Central Avenue, Suite 1600 Phoenix AZ 85012-2761 s/Cathy Bopp Cathy Bopp

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