185.04. Magnuson-Moss Act-Burden of Proof-Breach of Written Warranty-Affirmative Defenses to Warranty Enforcement

185.04 Magnuson-Moss Act--Burden of Proof--Breach of Written Warranty-- Affirmative Defenses to Warranty Enforcement In order for Plaintiff to recover for a breach of written warranty claim against Defendant, Plaintiff has the burden of proving each of the following propositions: First, the existence of a defect in the [vehicle] [product] covered by the warranty; Second, compliance with the terms of the warranty by Plaintiff; Third, that the Plaintiff afforded defendant a reasonable opportunity to repair the defect; and Fourth, that Defendant, through its authorized dealer [did not repair] [was unable to repair] the [vehicle] [product] after being given a reasonable number of attempts or a reasonable amount of time; or did not offer to refund or replace within a reasonable amount of time. Fifth, that Plaintiff sustained damages as a result of Defendant's failure to take action required by the warranty to correct the defect or malfunction or otherwise to correct the problem. [In this case Defendant has asserted the affirmative defense that: [Summarize in simple form and without undue emphasis or repetition affirmative defense(s) to warranty enforcement which has not been withdrawn or ruled out by the court and is supported by the evidence.] The Defendant has the burden of proving this affirmative defense.] If you find from your consideration of all the evidence that the propositions required of the Plaintiff have been proven and that [the Defendant's affirmative defense has not] [none of the Defendant's affirmative defenses has] been proven, then your verdict should be for the Plaintiff. If, on the other hand, you find from your consideration of all the evidence, that the propositions the Plaintiff is required to prove have not been proven, or that [any one of] the Defendant's affirmative defense[s] has been proven, then your verdict should be for the Defendant. Instruction approved January 2007.