N.C.P.I.—Civil 745.09

NOTE WELL: Appendices contain worksheets that the Court may

want to provide to the jury, but it is not mandatory to do so.

The (state number) issue reads:

“What amount of damages is the plaintiff entitled to recover from the

defendant?”1

You will answer this issue only if you have answered the (state number)

issue “Yes” in favor of the plaintiff2 and the (state number) issue “Yes” in favor

of the plaintiff3 [and the (state number) issue “No” in favor of the plaintiff4].

On this issue the burden of proof is on the plaintiff. This means that the

plaintiff must prove, by the greater weight of the evidence, the amount of

damages which the law permits the plaintiff to recover.5 The following items

may be recovered by the plaintiff: 6 (1) all sums previously paid by the

plaintiff under the terms of the lease; (2) all sums previously paid by the

plaintiff in connection with entering into the lease agreement including, but not

limited to, any capitalized cost reduction, sales tax, license and registration

fees, and similar government charges; and (3) any incidental and monetary

consequential damages. 7 Incidental damages include any reasonable

expenses incurred by the plaintiff incident to the defendant’s [failure]

[inability] to conform the (name vehicle) to the express warranty covering that

vehicle. 8 Monetary consequential damages include monetary losses

proximately resulting from the breach of warranty, but do not include

non-monetary damages to the plaintiff for such things as embarrassment,

emotional distress or pain and suffering. 9 A monetary loss proximately

results from a breach of warranty if it would not have occurred without the

breach of warranty and if such loss was reasonably foreseeable to a person in

the same or similar position as the defendant.

Any award to the plaintiff must be reduced by a reasonable allowance for

the plaintiff’s use of the (name vehicle). A reasonable allowance for use is

calculated from the number of miles used by the plaintiff up to the date of the

third attempt to repair the same nonconformity which is the subject of the

claim, or the twentieth cumulative business day when the vehicle is out of

service by reason of repair of one or more nonconformities, whichever occurs

first. The number of miles used by the plaintiff is multiplied by the lessor’s

actual lease price and divided by 120,000.10 The “lessor’s actual lease price” is

the actual purchase cost of the vehicle to (name lessor).

Finally, as to this issue on which the plaintiff has the burden of proof, if

you find by the greater weight of the evidence the amount of damages the

plaintiff is entitled to recover from the defendant, then it would be your duty to

write that amount in the blank space provided.

Formula for Calculating “Reasonable Allowance” for the Plaintiff’s Use of the Vehicle

When the Plaintiff is a Lessee

A “Reasonable Allowance” is determined by:

1. Calculating the number of miles used by the plaintiff-lessee up to: (a)

the date of the third attempt to repair the same nonconformity which is

the subject of the claim, or (b) the twentieth cumulative business day

when the vehicle is out of service by reason of repair of one or more

nonconformities; whichever occurs first;

2. Multiplying the number of miles by the lessor’s actual lease price

(which means the actual purchase cost of the vehicle to the lessor);

3. Dividing such amount by 120,000.

Number of Miles

as of:

(a) the date of the 3rd repair

attempt of the same

nonconformity which is

the subject of the claim;

or

(b) the twentieth cumulative ___________________________

business day when the

vehicle is out of service

for repair of one or more

nonconformities;

Whichever occurs first.

Multiplied by Lessor’s Actual Lease Price

X

(Which is the Actual Purchase Cost of the

__________________________

Vehicle to the Lessor)

=

= Subtotal

_________________________

Divided by 120,000: ÷ 120,000

= Reasonable Allowance

=

[Deduct this amount from the plaintiff’s

_________________________

damages award]

Formula for Calculating the Plaintiff’s Damages

When the Plaintiff is a Lessee

(N.C. Gen. Stat. § 20-351.3(b)(1))

(1) All Sums Previously Paid by the

Plaintiff-Lessee Under the Terms of

the Lease

Plus +

(2) All sums previously paid by the

Plaintiff-Lessee in Connection with

Entering into the Lease

(including, but not limited to, any

capitalized cost reduction, sales tax,

license and registration fees, and

similar government charges)

Plus +

(3) Any Incidental and Monetary

Consequential Damages

= Subtotal of 1 + 2 + 3:

Minus -

Reasonable Allowance for the Plaintiff’s Use

(insert number from Appendix A)

Equals =

= Total Damages Awarded to the

Plaintiff-Lessee