Free Order on Motion in Limine - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

RONALD WEBER, Plaintiff, vs. FLEETWOOD MOTOR HOMES OF INDIANA, INC., Defendant.

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CIV 03-2606 PHX JWS ORDER AND OPINION [Re: Motions at dockets 93, 94, 95, and 98]

I. MOTIONS PRESENTED At dockets 93, 94, and 95, plaintiff Ronald Weber has filed three motions in limine concerning "reference to goodwill/customer accommodation," "post-sale representations that are contradictory to pre-sale representations," and "reference to mileage accrued after [he] initiated this lawsuit," respectively. At docket 104, defendant Fleetwood Motor Homes of Indiana, Inc., opposes each of those motions. In addition, at docket 98, Fleetwood has filed a motion in limine that covers seven matters that will be discussed in more detail below. Weber opposes that motion at docket 101. Fleetwood has requested oral argument on the motions at dockets 93, 94, 95, and 98, but it would not assist the court and, therefore, Fleetwood's request is denied.

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II. DISCUSSION A. Motion at Docket 93 Relying on Fleetwood's limited warranty and the Ninth Circuit's decision in Milicevic v. Fletcher Jones Imports, Ltd.,1 Weber moves to prevent Fleetwood from making arguments or offering evidence that some of the repairs it made for free were made for customer goodwill or accommodation. Fleetwood's limited warranty requires it to repair defects covered by the warranty for free but does not obligate it to repair other defects or damage for free. Weber argues that it follows from the warranty that any repairs Fleetwood made for free would be due to defects covered by the warranty and not as goodwill gestures or for customer accommodation. That also follows, according to Weber, from the Milicevic court's conclusion that "[b]y attempting to repair the rear window seal and the brakes under warranty, [the manufacturer] admitted the defective nature of these conditions."2 Weber's motion is not supported by either the warranty or Milicevic. Although the warranty requires Fleetwood to repair defects covered by the warranty for free, it does not prevent Fleetwood from repairing other defects or damage for free as goodwill gestures or for Weber's accommodation. The Milicevic court's conclusion does not help Weber because it rests on the finding that repairs were made under warranty and not out of goodwill or for customer accommodation and that finding has not been made in this case.

1

402 F.3d 912 (9th Cir. 2005). Id. at 919.

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Fleetwood's opposition to Weber's motion raises another issue, which is related to the fact that Fleetwood extended the warranty on Weber's motor home twice, for a total of two years.3 Fleetwood argues that it "had absolutely no obligation" to extend the warranty and so "all repairs performed subsequent to the expiration of the initial oneyear warranty period should be classified as `goodwill' repairs."4 The court will not express an opinion on that argument now because Weber's motion did not call for it, and he did not file a reply brief addressing it. B. Motion at Docket 94 The order at docket 124 has mooted this motion. C. Motion at Docket 95 Weber moves to exclude "questions [about] or references to the mileage" he has put on his motor home since he filed this lawsuit.5 His motion will be denied because the mileage is relevant to his claim that he suffered loss of use of the motor home.6 D. Motion at Docket 98 Fleetwood moves the court to: "1) prevent lay opinions; 2) require production of the ... motor home at trial; 3) prevent [Weber] from claiming [the] limited warranty should not apply as written; 4) prevent [Weber] and William Trimmell from offering opinions regarding [the] value of [Weber's motor home] or alleged structural damage thereto; 5)

3

Doc. 104, p. 7. Id. Doc. 95, p. 3. Third Amended Complaint, Doc. 77, pp. 1-2, ¶ 1.

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prevent evidence of damages for aggravation, inconvenience, and loss of use; 6) prevent reference to `lemon law'; and 7) prevent misleading evidence re: `cost of purchase.'"7 1. Lay Opinions Fleetwood moves to exclude testimony by Weber and his attorney on defects in Weber's motor home, the quality of a report by someone Fleetwood hired to inspect Weber's motor home, and the content of Fleetwood's repair orders. a. Weber's Attorney Weber has not suggested that he will call his attorney as a witness at trial, and there is no reason to expect he will. Consequently, Fleetwood's motion will be denied as moot to the extent it addresses testimony by Weber's attorney. b. Defects in the Motor Home The order at docket 124 has mooted this part of Fleetwood's motion. c. Criticisms of Fleetwood's Inspection Fleetwood seeks to prevent Weber from offering at trial the opinions he expressed in an affidavit dated November 8, 2004, and attached as exhibit A to Fleetwood's motion at docket 98. Those opinions criticize the way someone hired by Fleetwood to inspect Weber's motor home conducted the inspection. Fleetwood argues that Weber "lack[s] the required training and expertise to present these criticisms at trial,"8 but neither explains what type of training and expertise his criticisms require nor

7

Doc. 98, p. 1. Id., p. 4.

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shows that he lacks them. Without that explanation and showing, there is no basis for excluding Weber's opinions. Moreover, the court's own assessment of Weber's opinions is that they do not require any particular training or expertise. For example, one of his criticisms is that the inspector's water test was flawed because he parked the motor home on a slope during the test.9 According to Weber, that caused the water to quickly drain away from the area he asserts was leaking.10 That criticism is hardly the kind of opinion that one needs special training or expertise to form. d. Repair Orders This part of Fleetwood's motion will be denied because there is nothing to exclude. Fleetwood is concerned that Weber will speculate about "the meaning of [the repair orders'] content,"11 but Weber represents that he "will allow [them] to speak for themselves."12 Because Weber does not intend to speculate about the repair orders' meaning, at this point it is not necessary to order such speculation excluded. 2. Production of the Motor Home Fleetwood moves for production of the motor home at trial for the jury's inspection. Fleetwood argues that because only its expert, and not Weber's, has inspected the motor home, it "would be unfairly prejudiced by the admission of ...

9

Id., ex. A, ¶ 6. Id. Id., p. 4. Doc. 101, p. 5.

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[Weber's] expert's `opinions' without an actual inspection" of the motor home by the jury.13 There is no need for the jury to inspect the motor home. Fleetwood's expert has inspected it and, presumably, will educate the jury about the results of his inspection. The fact that Weber's expert has not inspected the motor home will not prejudice Fleetwood at all. If anything, it will benefit Fleetwood by calling the testimony of Weber's expert into question. 3. Limited Warranty Applied as Written The order at docket 124 has mooted this part of Fleetwood's motion. 4. Weber and Trimmel's Opinions on Value of and Damage to the Motor Home Although the caption of Fleetwood's motion in limine indicates that the motion seeks to exclude the opinions of both Weber and Trimmel, Trimmel's are the only opinions mentioned in the body of the motion. Accordingly, the court will assume his opinions are the only topic of this part of Fleetwood's motion. Fleetwood moves to exclude Trimmel's opinions on the value of and alleged damage to Weber's motor home.14 However, it has failed to attach or refer to any document containing Trimmel's opinions. Therefore, its motion will be denied. 5. Evidence of Damages for Aggravation, Inconvenience, and Loss of Use Fleetwood advances two arguments in support of its motion to exclude evidence of damages for aggravation, inconvenience and loss of use. The first is that Weber "has

13

Doc. 98, p. 5. Id., p. 8.

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[so far] failed to provide any meaningful evidence in support of these categories of damages."15 The second is that those types of damages are not allowed under Fleetwood's limited warranty.16 Neither argument is persuasive. The first argument is not persuasive because a failure to offer evidence before trial is not a reason to exclude it at trial. Such a failure may be a reason for summary judgment on a claim based on lack of evidence, but that is not what Fleetwood requests. The second argument is not persuasive because, as discussed in the order at docket 124, there is a question about whether the warranty failed of its essential purpose and, thus, whether its limitation on damages is void. 6. Lemon Law Fleetwood moves to prevent Weber from referring to this action as a "lemon law case." Fleetwood is under the impression that the object of such a reference would be Arizona Revised Statute § 44-1261. Fleetwood argues that Weber should not be allowed to refer to that law because his action is not under that law, but instead is under the Magnuson-Moss Warranty Act ("MMWA"). Fleetwood's motion will be granted in part and denied in part. It is granted to the extent that Weber intends to refer to A.R.S. § 44-1261 because his claims are not based on that statute. It is denied to the extent that Weber intends to refer to the MMWA because the MMWA is a "lemon law." The dictionary defines "lemon law" as "[a]

15

Id., p. 10. Id.

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statute designed to protect a consumer who buys a substandard automobile"17 and the MMWA meets that definition. 7. Evidence of Cost of Purchase Fleetwood moves to exclude evidence of the total cost to Weber, including finance charges, of purchasing his motor home. Fleetwood argues that the total cost is not an accurate measure of Weber's damages because he has not yet paid off the loan on his motor home. Weber does not directly respond to that argument, but he contends that finance charges are damages he has incurred due to Fleetwood's refusal to accept his revocation of acceptance of his motor home and therefore should be considered. Fleetwood has not replied to that contention. There may be some merit to Weber's contention that his damages include finance charges. If he is correct, they should be considered, as should the total cost, if this litigation extends until he has paid off his loan. Because Fleetwood has not cast any doubt on Weber's contention, its motion will be denied. III. CONCLUSION The motion at docket 93 is DENIED; the motion at docket 94 is DENIED as moot; the motion at docket 95 is DENIED, and the motion at 98 is GRANTED in part and DENIED in part as set out above. DATED at Anchorage, Alaska, this 18th day of January, 2006. /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

17

BLACK'S LAW DICTIONARY 920 (8th ed. 2004).

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