Free Objection - District Court of Arizona - Arizona

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Marshall Meyers (020584) Shalev Amar (022332) KROHN & MOSS, LTD. 111 West Monroe, Suite 711 Phoenix, AZ 85003 (602) 275-5588 (866) 385-5215 (facsimile)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CHARLES DESHAZER, Plaintiff, CV-03-869 PHX FJM v. NATIONAL RV HOLDINGS, INC. and FREIGHTLINER CUSTOM CHASSIS CORPORATION Defendants. I. OBJECTIONS TO NATIONAL RV PROPOSED JURY INSTRUCTIONS. To preface, Plaintiff has no objection to National's Preliminary Jury Instructions, Instructions at End of Case, Concluding Instructions or Burdens of Proof from the Ninth Circuit Manual of Model Jury Instructions (Civil) (2001), except to state they are duplicative and voluminous and such overly burdensome. INSTRUCTION NO. 1: No Objection. PLAINTIFF'S OBJECTIONS TO NATIONAL RV AND FREIGHTLINER'S REQUESTED JURY INSTRUCTIONS

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INSTRUCTION NO. 2: Plaintiff objects to element 4 stating "but that defendant refused or was unable to accomplish a repair or replace (sic) of the defective part" as an incomplete statement of law. What is also required is that repair or replacement be

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effectuated in a reasonable opportunity. Muller v. Winnebago Indus., 318 F. Supp. 2d 844

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(D. Ariz. 2004); De Shazer v. National RV Holdings, Inc., 391 F.Supp.2d 791 (D. Ariz. 2005). 1 INSTRUCTION NO. 3: Plaintiff objects that it is an incorrect interpretation of the law to state "[i]n order for a defendant to have had a reasonable opportunity to repair a defect or replace a defective part, the plaintiff must have provided the defendant with at least three (3) opportunities to perform the repair or replacement." The better reasoned general trend in authority holds two (2) to three (3) repairs is reasonable with the product viewed as a whole as when part of the product is subject to repair, the entire product cannot be

Roberts v Morgensen Motors, 135 Ariz. 162; 659 P.2d 1307 (Ariz. App. Div 1 1982); Kalil Bottling Co. v Burroughs Corp., 127 Ariz. 278; 619 P.2d 1055 (Ariz. App. Div. 2 (1980); Ford Motor Credit v Harper, 671 F,2d 1117 (8th Cir. 1981); Jones v Fleetwood Motor Homes, 127 F.Supp.2d 958 (N.D. Ill. 2000); Marchionna v. Ford Motor Company, 1995 WL 476591 at*11 (N.D.Ill. 1995); Larry J. Soldinger Assoc., Ltd. v. Aston Martin Lagonda of North Am., Inc., 1999 WL 756174 (N.D. Ill. 1999); Webco Industries, Inc. v. Thermatool Corp., 278 F.3d 1120, 1131 (10th Cir. 2002); Arabian Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 486 (8th Cir. 2002); Bushendorf v Freightliner Corp., 13 F.3rd 1024, 1027 (7th Cir. 1993); Terrell v. R & A Mfg. Partners, Ltd., 835 So.2d 216, 226 (Ala. App. 2002); Poli v. DaimlerChrysler Corp., 349 N.J. Super. 169, 171-172, 793 A.2d 104 (2002); Trinity v. McKinnon Bridge, 77 S.W.3d 159, 170 (Tenn.App. 2001); TRGO v. Chrysler Corp., 34 F. Supp.2d 581, 590 (N.D. Ohio 1998; Bishop Logging Co. v. John Deere Indus. Equipment Co., 317 S.C. 520, 455 S.E.2d 183, 191 (S.C. App. 1995); AG-Chem Equipment Co. v. Limestone Farmers Co-op, 567 So.2d 250, 252 (Ala. 1990); Traynor v. Winnebago, 2004 WL 1146077, 2004 U.S. Dist. LEXIS 12056 (D. Ariz. 2004); Gilbert v Monaco Coach Corporation, 352 F.Supp.2d 1336 (N.D. Ga. 2004); Goddard v. General Motors Corp., 396 N.E.2d 761, 765 (1979); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513, (Wis. 1978); Pearson v. DaimlerChrysler Corporation, 2004 Ill. App. LEXIS 331 (1st Dist. Ill. Mar. 31, 2004) ("... the limited warranty is breached and/or fails of its essential purpose if successful repairs are not made within a reasonable time or within a reasonable number of attempts"); Lara v. Hyundai Motor America, 331 Ill.App.3d 53, 770 N.E.2d 721, 729 (2nd Dist. 2002) (a limited "repair or replace" warranty "fails of its essential purpose when a seller . . . is unsuccessful in correcting the defects within a reasonable time"); Custom Automated Machinery v. Penda Corp., 537 F. Supp. 77, 83 (N.D.Ill. 1982) (remedy failed of its essential purpose when the seller did not correct the defects within its product "within a reasonable time"); Samuels v. American Motors Sales Corp., 1989 WL 95787, at *5 (N.D.Ill. 1989) (failure to repair the defects "in a reasonable period of time and with a reasonable number of trips to the shop caused the limited remedy to fail of its essential purpose").

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used. Traynor v. Winnebago, 2004 WL 1146077, 2004 U.S. Dist. LEXIS 12056 (D. Ariz. 2004) ("The critical issue for purposes of Winnebago's motion is whether Plaintiff must prove that Winnebago made a reasonable number of attempts to remedy each individual defect, or that Winnebago made a reasonable number of attempts to remedy the Journey as a whole. Winnebago contends that the reasonable number of attempts must be with respect to each defect and that Plaintiff cannot show that it afforded Winnebago two or more attempts to remedy each defect. The Court has reviewed relevant case law and the text of the statute and declines to adopt Winnebago's interpretation"); Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1027 (7th Cir. 1993) (particular component may not be defective, question is do unidentified defects render the product incapable of being used when all components are combined); Rose v. Chrysler Motors Corp., 212 Cal.App.2d 755 (Cal.App. 1963) (doesn't mater if "two-cent" component is defective, question is what is impact of defective part on ability to use the product); Gilbert v Monaco Coach Corporation, 352 F.Supp.2d 1336 (N.D. Ga. 2004) ("The Court also notes that while defendant focuses its argument on the fact that Safari did not manufacture the parts

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believed to be the sources of many of the problems alleged, the Limited Warranty also explicitly covers `portion[s] of the vehicle and any of its parts supplied or manufactured by Safari Motor Coaches.' Because Safari supplied plaintiffs with parts of the vehicle,

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such as headlights, the inverter, the air conditioning and satellite television systems, the Court finds defendant's argument that these parts were not manufactured by Safari and are therefore excluded from warranty coverage unpersuasive"); Marchionna v. Ford Motor Company, 1995 WL 476591 at*11 (N.D.Ill. 1995); Larry J. Soldinger Assoc., Ltd.

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v. Aston Martin Lagonda of North Am., Inc., 1999 WL 756174 (N.D. Ill. 1999); H.R. REP. NO. 93-1606, at 5 (1974) ("if the product . . . contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions"). INSTRUCTION NO. 4: Plaintiff objects that the instruction "[a] written warranty must be interpreted and enforced consistent with its clear language" is an incorrect statement of law. Any vague or ambiguous terms must be construed against the drafter of the warranty (be it National or Freightliner) pursuant to the doctrine of contra proferentum. De Shazer v. National Holdings RV, 391 F.Supp.2d 791 (D. Ariz. 2005), and multiple additional rules of construction apply here including that which the parties intended, RAJI (CIVIL) 4th CONTRACT 26 Determining Intent of the Parties, that when choosing between the possible meanings of language in a written agreement, the meaning that operates against the interests of the party who supplied the words is generally the preferred meaning; that a duty of good faith and fair dealing is implied into every contract; and that inherent in every contract is a remedy for breach. See Plaintiff's Proposed Jury Instructions 7-11.

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INSTRUCTION NO. 5: No Objection. INSTRUCTION NO. 6: No Objection. INSTRUCTION NO. 7: Plaintiff objects to several portions of this compound

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instruction. First, diminished value is the standard measure of damages for a warranty breach, Muller; DeShazer, Faulkingham v Seacoast Subaru, Inc., 577 A.2d 772 (Me. 1990) (measure of damages is difference between value of vehicle as warranted and as accepted

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and not purchase price less cost of repair), with cost of repair being the measure if it exceeds diminished value, Isenberg v Lemon, 84 Ariz. 340; 327 P.2d 1016 (Ariz. 1958), or as a special circumstances which Defendants must prove, Gem Jewelers, Inc. v Dykam, 160 A.D.2d 1069 (N.Y. 1990) (uniqueness of custom designed cabinets justified departure from ordinary 2-714(2) standard and measure of damages was cost of replacement); Downs v Shouse, 501 P.2d 401, 406 (Ariz. App. 1972) (airplane oil leak was fixed in one try at actual cost of approximately fifteen hundred dollars making this the measure of damages). Further, even if cost of repair were a measure, it isn't the measure. Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365. (8th Cir. 1977) (The buyer is not limited to repair costs when repair does not completely restore the goods to the value which they would have had if built in conformity with the contract; remaining diminution in value may also be recovered . . . In formulating the diminution in fair market value of the cars, [Plaintiff's expert] properly placed reliance on the necessity for present and future repairs and the fact that even a rebuilt patched railcar would be worth less than a correctly constructed one) (citations omitted); Hartzell v. Justus Co., Inc., 693 F.2d 770,

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773, (8th Cir. 1982) (proper measure of damages is cost of repairs plus decrease in market value still existing after all repairs have been completed). Regarding loss of use, first National states "[loss of use] [d]amages are

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recoverable only for those days that the motorhome would actually have been in use." See Instruction No. 7 at lines 16-17. Although it is impossible to determine the exact number of days that the subject Motor Home would have been "actually in use" when it was out of service for repairs, it is irrefutable that every day the Motor Home was out of

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service it could not have been used to any extent and that Plaintiff did not have the benefit of any potential use of said Motor Home despite making payments on it. Finally, National incorrectly states "[y]ou may not award consequential damages or loss of use damages if you find that these damages are excluded under the terms of the warranty." Id. at lines 22-23. This ignores National's own Instruction No. 5 regarding failure of essential purpose. If the instruction does not add "unless the limited remedy fails of its essential purpose," it is incorrect. INSTRUCTION NO. 8: No Objection. II. OBJECTIONS TO FREIGHTLINER'S JURY INSTRUCTIONS. Plaintiff has no objections to any of the Revised Arizona Jury Instructions (Civil) Fourth Edition) proposed by Freightliner to the extent that they are in conformity with Ninth Circuit Jury Instructions, except to state they are duplicative and voluminous and as such overly burdensome. INSTRUCTION NO. 1: The first, second and fifth elements described for breach of warranty are incorrect. Element 1 states "[t]here was a sale of goods; the defendant was

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the seller, and plaintiff a buyer." The Magnuson-Moss Warranty Act ("MMWA") does not require that a defendant be a seller but instead merely a "supplier," 15 U.S.C. §2301(4) or "warrantor," 15 U.S.C. §2301(5) as 15 U.S.C. § 2310(d), provides:

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[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 any other legal and equitable relief...[Emphasis added.]

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As such, element 1 incorrectly states the law. Likewise, element 2 states "National RV or Freightliner expressly warranted the goods sold[.]" To the extent Freightliner is attempting to draw a distinction between express and written warranties Plaintiff objects as §2310(d) makes actionable the failure to comply under a "written warranty" and as such, the appropriate terms of art should be used. Freightliner fabricates the requirement in element No. 5 that "Mr. De Shazer gave defendant timely notice of the breach of warranty." Tellingly, Freightliner cites no part of the MMWA as authority for this element because that requirement exists nowhere in the Act. All Plaintiff was obligated to do was to afford Freightliner "a reasonable opportunity to cure such failure to comply [with the warranty]." It is abundantly clear based on the documented repair history herein that such an opportunity was afforded. INSTRUCTION NO. 2: Freightliner improperly attempts to put its affirmative defense burden to prove abuse or misuse on Plaintiff with Instruction No. 2. Freightliner also has the burden to prove that any alleged modifications, alterations, and misuses were not reasonably foreseeable to Freightliner. 2

15 U.S.C. § 2304(a)(4), Fed R. Civ. P. 8., Affirmative Defenses in Answers to Amended Complaint; Jones v Taber, 648, F,2d 1201 at 1203 (9th Cir. 1981) ("[b]urden is always on the party advancing an affirmative defense to establish its validity."); Fed R. Civ. P. 8, and cmt. Burden of Proof; ("[t]he Party raising an affirmative Defense has the burden of proving it."); See e.g., Continental Airlines, Inc. v. Intra Brokers, Inc. 24 F.3rd 1099, 1103 (9th Cir. 1994) (Stating, "[e]stoppel is an affirmative defense, for which the defendant bears the burden of proof."); See also, State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 651 P.2d 862 (App.Div.1 1982); Burr v. Renewal Guaranty Corp., 105 Ariz. 549, 468 P.2d 576 (1970); Strahan v. Haynes, 33 Ariz. 128, 262 P.995 (1928); A.R.S. §47-2314Universal Motors Inc., v. Waldock, 719 P.2d 254 (Alaska 1986); Prutch v. Ford Motor Co., 618 P.2d 657, 660 (Colo. 1980).

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INSTRUCTION NO. 3: In this instruction ("[t]here is a breach of warranty when the goods sold do not reasonably conform to the expressly warranted quality, characteristic, or performance") Freightliner incompletely states the law. It is true Freightliner's warranty, like National's, promises a defect-free product, but there is nothing "reasonable" about this express promise and the product either conforms to the promise of being defect free or doesn't. INSTRUCTION NO. 4: See Objection to No. 1 (element 5) incorporated herein by reference. This notice instruction would only come into play if revocation is allowed by the Court as there is no notice requirement under the Act for a warranty breach. The proposed instruction also seeks to import a requirement of a buyer/seller relationship when none exists. INSTRUCTION NO. 5: Plaintiff objects that this instruction (that defendant may limit its damages to only repair or replacement in event of a breach) is incorrect. The standard measure of damages for breach of warranty is diminution in value irrespective of damages disclaimers. Isenberg v Lemon, 84 Ariz. 340; 327 P.2d 1016 (Ariz. 1958)

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("Generally, the measure of damages for breach of warranty in absence of special circumstances showing proximate damages of a greater amount is the difference between value of goods at time of delivery and value they would have had if they had been as

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warranted"). See also Muller v. Winnebago, 318 F. Supp. 2d 844 (D. Ariz. 2004); DeShazer v. National RV, 391 F.Supp.2d 791 (D.Ariz. 2005). Further, additional damages are available where a limited remedy fails of its essential purpose. Id.

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INSTRUCTION NO. 6: The standard for failure of essential purpose namely "[a] limitation on a remedy does not cause the warranty to fail of its essential purpose unless it operates to deprive either party of the substantial value of their bargain" given by Freightliner is incorrect. See National Jury Instruction No. 5; see also Plaintiff's

Proposed Jury Instruction Nos. 15-16. RESPECTFULLY SUBMITTED this 1st day of February 2006.

By: s/Marshall Meyers___________ Marshall Meyers Shalev Amar KROHN & MOSS, LTD. 111 W. Monroe, Ste. 711 Phoenix, AZ 85003 Attorney for Plaintiff Filed electronically on this 1st day of February 2006, with: United States District Court CM/ECF system Courtesy Copy mailed this 1st day of February, to:

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Hon Frederick J. Martone United States District Court, District of Arizona 401 West Washington Phoenix AZ 85003 s/Shalev Amar Shalev Amar

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