In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2520
RONALD BURZLAFF,
Plaintiff-Appellee,
v.
THOROUGHBRED MOTORSPORTS, INC.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-CV-92 — Aaron E. Goodstein, Magistrate Judge.
____________________
ARGUED FEBRUARY 10, 2014 — DECIDED JULY 10, 2014
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
KENDALL, District Judge.*
HAMILTON, Circuit Judge. The trial judge in this case pro-
vided textbook examples of how to construe a statute and
how to modify pattern jury instructions that do not quite fit
*The Honorable Virginia M. Kendall, United States District Judge for the
Northern District of Illinois, sitting by designation.
2 No. 13-2520
the facts of the specific trial. Plaintiff Ronald Burzlaff bought
a defective “Stallion” motorized tricycle from defendant
Thoroughbred Motorsports, Inc. When Burzlaff reported the
first of multiple problems to Thoroughbred, the company
instructed him to take his vehicle to a nearby Ford dealer for
warranty repairs. Burzlaff wound up doing so repeatedly.
After the vehicle had been out of service for repairs for 71
days during the first year, Burzlaff finally demanded under
the Wisconsin Lemon Law that Thoroughbred replace the
vehicle or refund his purchase price. Thoroughbred refused.
A further effort to repair the vehicle at the Thoroughbred
factory in Texas also failed to correct the defects.
Burzlaff then sued Thoroughbred under the federal
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., and
the Wisconsin Lemon Law, Wis. Stat. § 218.0171. 1 A jury
found for Burzlaff on both claims. The district court awarded
double damages plus costs and attorney fees for a total
judgment of nearly $95,000 under the more generous provi-
sions of the state Lemon Law. On appeal, Thoroughbred
challenges the jury instructions on the Lemon Law claim, the
sufficiency of the evidence on that claim, and the submission
of the Magnuson-Moss claim to the jury. We affirm in all re-
spects.
I. Factual and Procedural Background
We present the facts as shown by trial evidence when
viewed in the light most favorable to the jury’s verdict. Har-
vey v. Office of Banks and Real Estate, 377 F.3d 698, 701 (7th Cir.
1 Numerous amendments to the Lemon Law took effect on March 1,
2014. All citations to and quotations from the Lemon Law in this opinion
use the version in effect in 2009 and 2010.
No. 13-2520 3
2004). On October 19, 2009, plaintiff Ronald Burzlaff pur-
chased a Thoroughbred Motorsports “Stallion” Motor Trike
at a total cost of over $35,000. The Stallion is an unusual ve-
hicle with a steering wheel, heat and air conditioning, and
other features uncommon in motorcycles. Defendant Thor-
oughbred Motorsports, Inc. is a small company based in
Texas with only about 20 authorized dealers nationwide.
Burzlaff bought his Stallion from the only Thoroughbred
dealer in Wisconsin, which is located 300 miles from
Burzlaff’s home in Greenfield.
During the first year after purchase, Burzlaff experienced
numerous problems with his vehicle. It was delivered with-
out a gas cap and would not start. The heating and air condi-
tioning failed. The transmission leaked. The cooling system
leaked. Other plugs and seals leaked. The steering wheel
was loose and the front wheel came out of alignment, mak-
ing the vehicle unstable. One tire would not hold air. The ra-
dio did not work. The headlight and taillight sockets were
loose.
In November 2009, Burzlaff telephoned Thoroughbred
about the first issues with his vehicle. He explained that the
only Wisconsin dealer would be inconvenient for repairs be-
cause it was too far away. Burzlaff had seen a 2009 brochure
for the Stallion advertising its Ford-made drivetrain and
boasting that the Stallion could be serviced at Ford dealers.
He asked about the possibility of going to a Ford dealer. The
Thoroughbred representative told Burzlaff he could take it
to a nearby Ford dealer for warranty repairs. (Burzlaff was
also told to go to specialized shops for other problems, such
as radio and tire repairs.)
4 No. 13-2520
During the first year, the vehicle was in various shops for
repairs for a total of 71 days. That number is significant be-
cause a vehicle is not deemed a “lemon” under the Wiscon-
sin law unless either there have been four unsuccessful at-
tempts to repair the same defect or the vehicle is out of ser-
vice for 30 or more days during the first year. See Wis. Stat.
§ 218.0171(1)(h) (defining “reasonable attempt to repair”).
Thoroughbred did not specify a particular Ford dealer.
Burzlaff chose to go to Amato Ford, a nearby Ford dealer.
Although Amato Ford was not an authorized Thoroughbred
dealer, Burzlaff knew it had previously serviced other Stal-
lions. Over that first year, Thoroughbred provided Amato
Ford with parts and excerpts from the Stallion manual to
help it repair Burzlaff’s vehicle. Amato Ford billed the re-
pairs directly to Thoroughbred, which paid for all of them.
Thoroughbred never instructed Amato Ford to stop repair-
ing Burzlaff’s vehicle.
Before the end of the first year after the purchase,
Burzlaff met the president and founder of Thoroughbred,
Jeffrey Vey, at a motorcycle rally in Wisconsin. Burzlaff com-
plained about the ongoing repairs and asked Vey to have
Thoroughbred replace the vehicle or refund his purchase
price. Vey refused to replace or refund, but he offered to
transport Burzlaff’s Stallion back to the factory in Texas for
repairs. Burzlaff followed up with a letter to Vey later that
month, but the vehicle was not actually picked up for
transport to the factory until some weeks later, more than
one year after the purchase.
Six more months passed before the vehicle was returned
to Burzlaff. Burzlaff then filed suit against Thoroughbred in
a Wisconsin state court alleging violations of the Lemon
No. 13-2520 5
Law, Wis. Stat. § 218.0171, and the federal Magnuson-Moss
Warranty Act, 15 U.S.C. § 2301 et seq. Thoroughbred re-
moved the case to the Eastern District of Wisconsin. The par-
ties consented to have Magistrate Judge Goodstein preside
over the case under 28 U.S.C. § 636(c). The parties stipulated
the amount of pecuniary damages to be $35,633.23, which
was the total purchase price.
The jury found for Burzlaff on both claims. The court
awarded double damages, then available under the Wiscon-
sin Lemon Law, Wis. Stat. § 218.0171(7), plus costs and attor-
ney fees, for a total judgment of $94,907.96. No damages
were awarded on the Magnuson-Moss claim. On appeal,
Thoroughbred challenges the Lemon Law jury instructions,
the sufficiency of the evidence, and the submission of the
Magnuson-Moss Act claim to the jury. After a brief detour
into subject matter jurisdiction, we address those contentions
in turn.
II. Analysis
A. Federal Jurisdiction
This case turns the usual pattern of supplemental juris-
diction on its head. Here the district court had original juris-
diction over the state law claim but only supplemental juris-
diction over the federal law claim. To explain this oddity:
Thoroughbred’s notice of removal asserted two grounds
for federal jurisdiction: federal question jurisdiction based
on the Magnuson-Moss Act claim and diversity because the
parties were citizens of different states and over $75,000 was
in controversy. But federal question jurisdiction under 28
U.S.C. § 1331 is not available here. A warranty claim under
the Magnuson-Moss Act may be brought in either state or
6 No. 13-2520
federal court, but for the federal court to have jurisdiction
under the Act, the amount in controversy must equal or ex-
ceed “the sum or value of $50,000 (exclusive of interest and
costs) computed on the basis of all claims to be determined
in this suit.” 15 U.S.C. § 2310(d)(3)(B); Schimmer v. Jaguar
Cars, Inc., 384 F.3d 402, 403–04 (7th Cir. 2004).
The Magnuson-Moss Act provides for damages, includ-
ing attorney fees, but Burzlaff’s compensatory damages un-
der the Act could not have been more than the purchase
price of $35,633.23. Cf. Schimmer, 384 F.3d at 405 (holding
that amount in controversy was less than purchase price
where full refund was not permissible under state law);
Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 957–59
(7th Cir. 1998) (setting forth detailed calculations for deter-
mining amount in controversy under the Magnuson-Moss
Act). Burzlaff’s attorney fees at the time of removal could not
reasonably have reached the nearly $15,000 needed to make
up the difference. See Gardynski-Leschuck, 142 F.3d at 958 (in
determining amount in controversy under Magnuson-Moss
Act, attorney fees are limited to those incurred at time of fil-
ing in federal court).
Oddly enough, though, the claim under the Wisconsin
Lemon Law satisfies the higher $75,000 amount-in-
controversy requirement for federal diversity jurisdiction
under 28 U.S.C. § 1332. In 2009 and 2010 when Burzlaff’s ve-
hicle was new, the Wisconsin law allowed damages of twice
the amount of any pecuniary loss. Wis. Stat. § 218.0171(7).
(The provision was amended effective March 1, 2014 to limit
such awards to actual pecuniary loss.) The parties stipulated
here that the pecuniary loss was $35,633.23, and Burzlaff had
used the vehicle very little, which avoided complications
No. 13-2520 7
that could otherwise have arisen as in Gardynski-Leschuck
and Schimmer.
Twice the pecuniary loss was $71,266.46. That was still
short of $75,000, but the Wisconsin law also provides for re-
covery of disbursements and attorney fees. Wis. Stat.
§ 218.0171(7). For purposes of determining the amount in
controversy under diversity jurisdiction, attorney fees can be
included if they are part of damages, but the amount is lim-
ited to the amount accrued at the time of removal. See
Gardynski-Leschuck, 142 F.3d at 958–59. It was not unreason-
able to think that Burzlaff and his attorney had invested at
least $3,733.55 in fees at that time. Thoroughbred certainly
thought that was true when it represented that the amount
in controversy exceeded $75,000 in the notice of removal. We
could not say it was a legal certainty at the time of removal
that Burzlaff could not recover damages of more than
$75,000. See Carroll v. Stryker Corp., 658 F.3d 675, 680–81 (7th
Cir. 2011). The district court therefore had original diversity
jurisdiction over the state law claim. It could then properly
exercise supplemental jurisdiction over the Magnuson-Moss
Act claim. 28 U.S.C. § 1367(a); Voelker v. Porsche Cars North
America, Inc., 353 F.3d 516, 522 (7th Cir. 2003). We move on to
the merits. 2
2 If we had to order remand for lack of jurisdiction because Thorough-
bred itself miscalculated the amount in controversy, this lawsuit would
probably become even more expensive for Thoroughbred. Burzlaff could
seek an award of the “just costs and any actual expenses, including at-
torney fees, incurred as a result of the removal,” 28 U.S.C. § 1447(c),
which could be substantial where the case has been taken to trial in fed-
eral court. See generally Martin v. Franklin Capital Corp., 546 U.S. 132
(2005) (establishing standard for fee awards under § 1447(c)); Internation-
al Union of Operating Engineers v. County of Plumas, 559 F.3d 1041, 1045–46
8 No. 13-2520
B. Modification of Pattern Jury Instructions
Thoroughbred’s principal argument on the merits is that
the district court erred by modifying the Wisconsin Pattern
Jury Instructions for Lemon Law claims. “We review jury
instructions de novo to determine whether they provide fair
and accurate summaries of the law.” Savino v. C.P. Hall Co.,
199 F.3d 925, 934 (7th Cir. 1999). In crafting jury instructions,
however, the district court is afforded substantial discretion,
and we will reverse only if it failed to state the law complete-
ly and correctly and the error caused prejudice. Id. The dis-
trict court’s modifications were entirely appropriate to adapt
the pattern instructions to the facts of this case.
To explain, we must examine the substantive provisions
of the Wisconsin Lemon Law, which provides a remedy for a
purchaser of a defective motor vehicle beyond the contractu-
al warranty. Wis. Stat. § 218.0171. The applicable version of
the Lemon Law (in effect prior to March 1, 2014) required
the consumer to provide notice of the defect (or “noncon-
formity”) and an opportunity to repair:
If a new motor vehicle does not conform to an appli-
cable express warranty and the consumer reports the
nonconformity to the manufacturer, the motor vehicle
lessor or any of the manufacturer’s authorized motor
vehicle dealers and makes the motor vehicle available
for repair before the expiration of the warranty or one
year after first delivery of the motor vehicle to a con-
(9th Cir. 2009) (directing district court to decide removal fees where ap-
peal resulted in remand to state court after judgment for plaintiff in dis-
trict court). The case would also have to be retried in state court, requir-
ing further attorney fees on both sides.
No. 13-2520 9
sumer, whichever is sooner, the nonconformity shall
be repaired.
Wis. Stat. § 218.0171(2)(a). A “nonconformity” is defined as
“a condition or defect which substantially impairs the use,
value or safety of a motor vehicle” and is covered by an ex-
press warranty, but the definition excludes the results of
abuse, neglect, or unauthorized modification of the vehicle
by the consumer. § 218.0171(1)(f).
If the nonconformity persists after a “reasonable attempt
to repair,” the manufacturer must provide either a full re-
fund or a replacement vehicle. Wis. Stat. § 218.0171(2)(b).
The “reasonable attempt to repair” has failed if four at-
tempts to repair the same nonconformity are unsuccessful or
if the vehicle is out of service for repairs for 30 days or more
in the first year. § 218.0171(1)(h).
Thoroughbred challenges nine similar modifications of
the jury instructions. We focus on one, the instruction titled
“Lemon Law Claim: Out of Service Warranty Nonconformi-
ty,” to illustrate the issue. Here is the relevant excerpt of the
pattern instruction:
… you must find that (plaintiff) notified the manufac-
turer or any authorized dealer of a (the) nonconformi-
ty(ies) and gave the manufacturer or dealer an oppor-
tunity to repair the condition or defect.
Wis. Pattern Jury Instruction – Civil 3303. Based on the
evidence in this case that the manufacturer told the con-
sumer to have the vehicle repaired at Amato Ford, which
was not an authorized dealer for the manufacturer, the
court modified the pattern instruction as shown by italics
in this passage:
10 No. 13-2520
… you must find that Ronald Burzlaff notified the
manufacturer or any authorized dealer of the noncon-
formities and gave the manufacturer, an authorized
dealer, or any other repair facility acting on the manufac-
turer’s behalf, an opportunity to repair the noncon-
formities.
The parties agree that notice of a nonconformity must be
given to “the manufacturer, the motor vehicle lessor or any
of the manufacturer’s authorized motor vehicle dealers.”
Wis. Stat. § 218.0171(2)(a). Burzlaff did so. The statute also
requires a consumer to make the vehicle “available for re-
pair.” Id. Thoroughbred contends that if the vehicle is not
taken to one of the listed entities for the actual repairs, the
Lemon Law does not apply. Burzlaff counters that the statute
limits only those entities to which notice must be given. He
argues that the vehicle has been made “available for repair”
once it is taken to any authorized shop, whether the shop is
also an authorized dealer or not. Burzlaff’s approach fits bet-
ter both the text and purpose of the Lemon Law.
The text of the Lemon Law has fairly strict requirements
for who must receive notice but flexible options for who can
perform repairs. The consumer must report the nonconform-
ity to the manufacturer or to one of its authorized dealers
(or, in case of a vehicle lease, to the lessor). That notice
makes sure that the manufacturer learns of the problem. To
take advantage of the law, the consumer must then make the
vehicle “available for repair,” which obliges the manufactur-
er to repair the nonconformity. Wis. Stat. § 218.0171(2)(a).
The text of the statute simply does not say, as Thorough-
bred argues, that the vehicle is “available for repair” only if
it is actually taken to the manufacturer or an authorized
No. 13-2520 11
dealer (or, if applicable, the lessor). The more flexible lan-
guage reflects an obviously sensible approach. It preserves
Lemon Law protection when the manufacturer directs the
consumer to a repair shop other than the manufacturer’s
own authorized dealers, who may be few and far between. 3
Flexibility for repairs is also consistent with the law’s
broader legislative purpose. The Wisconsin Lemon Law was
passed to provide consumers with an alternative to the “in-
adequate, uncertain and expensive remedies of the Uniform
Commercial Code or the Magnuson-Moss Warranty Act.”
Hughes v. Chrysler Motors Corp., 542 N.W.2d 148, 150 (Wis.
1996). The Lemon Law is “‘obviously remedial in nature,’”
and courts should “‘construe the statute with a view towards
the social problem which the legislature was addressing
when enacting the law.’” Id. at 151, quoting Hartlaub v.
Coachmen Industries, Inc., 422 N.W.2d 869, 873 (Wis. App.
1987). Following this approach, Hughes held that “pecuniary
loss” as used in the damages provision of the Lemon Law
included the purchase price, not merely the costs flowing
from the defect. Id. (“Certainly the law is intended to do
3 Thoroughbred fails to recognize that the more flexible reading benefits
manufacturers as well as consumers. The law would make the products
of small manufacturers like Thoroughbred much less attractive to con-
sumers if they could preserve their rights under the Lemon Law only by
repairing a nonconforming vehicle at one of a small number of dealers or
the factory itself. Instead, a small manufacturer may pay for work at a
more convenient location, as Thoroughbred did in this case, while still
protecting consumers’ rights under the Lemon Law.
12 No. 13-2520
more than simply parrot the remedies previously available
to the consumer.”). 4
The Lemon Law would not be an effective safeguard un-
der Thoroughbred’s narrow interpretation. A consumer
could lose the law’s protections by taking the vehicle to a dif-
ferent repair facility when directed to do so by the manufacturer.
That result would be unjust to the point of absurdity. The
Wisconsin Supreme Court has quoted with approval the un-
derstanding that it “‘should go without saying that the legis-
lature contemplated that all the parties covered by the Lem-
on Law should act in good faith.’” Marquez v. Mercedes-Benz
USA, LLC, 2012 WI 57, ¶ 17, 815 N.W.2d 314, 319 (Wis. 2012),
quoting Herzberg v. Ford Motor Co., 2001 WI App. 65, ¶ 18,
626 N.W.2d 67, 72 (Wis. App. 2001). The interpretation pro-
posed by Thoroughbred in this case would be an invitation
to bad faith conduct by manufacturers.
In essence, Thoroughbred wants this court to find that
Burzlaff lost his rights by following its own instructions for
repairing the vehicle. The text of the statute does not support
that result, which also raises obvious issues of estoppel. The
Supreme Court explained the general principle long ago:
“The vital principle is that he who by his language or con-
duct leads another to do what he would not otherwise have
done, shall not subject such person to loss or injury by dis-
4While we have sometimes expressed doubts about the value of the can-
on that remedial statutes are to be construed liberally, see Bushendorf v.
Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1993), Wisconsin courts ap-
ply the canon to the Wisconsin Lemon Law. E.g., Garcia v. Mazda Motor of
America, Inc., 2004 WI 93, ¶ 8, 682 N.W.2d 365, 368 (Wis. 2004). Our role
here is to decide questions of state law as we predict the state’s highest
court would decide them.
No. 13-2520 13
appointing the expectations upon which he acted.” Dicker-
son v. Colgrove, 100 U.S. 578, 580 (1879); see also Union Mutu-
al Ins. Co. v. Wilkinson, 80 U.S. 222, 233 (1871) (insurer could
not use its own agent’s actions as defense against payment of
benefits); Texas Co. v. Chicago & A.R. Co., 126 F.2d 83, 90–91
(7th Cir. 1942). We made a similar point in Dormeyer v. Co-
merica Bank—Illinois, 223 F.3d 579, 582 (7th Cir. 2000), where
we explained how an employer could be estopped from rely-
ing on a statutory defense under the Family and Medical
Leave Act if it had misled an employee about her eligibility
for leave.
More to the point in this case applying state law, the Wis-
consin courts apply equitable estoppel to avoid similarly un-
just results. E.g., Milas v. Labor Ass’n of Wisconsin, Inc.,
571 N.W.2d 656, 660–61 (Wis. 1997) (county employer’s par-
ticipation in arbitration estopped it from denying validity of
agreement requiring arbitration); Dunn v. Pertzsch Constr.
Co., 157 N.W.2d 652, 654 (Wis. 1968) (owner of land estopped
from asserting trespass claim against business to whom her
husband sold fill from land); Baierl v. Riesenecker, 230 N.W.
605, 606 (Wis. 1930) (applying equitable estoppel to bar pur-
chaser of property from denying validity of mortgage after
having deducted mortgage principal from purchase price).
Thoroughbred first advertised that Stallions could be re-
paired at Ford dealers. Then, when Burzlaff had problems
with his vehicle and asked Thoroughbred for help, it told
him to take his vehicle to a Ford dealer for warranty repairs.
Burzlaff reasonably relied on that advice by going to Amato
Ford. We cannot imagine that the Wisconsin courts would
hold that Burzlaff lost his rights under the Lemon Law by
relying on the manufacturer’s instruction.
14 No. 13-2520
To counter the manifest injustice of stripping a consumer
of his statutory rights because he followed the manufactur-
er’s instructions, Thoroughbred points out that its theory
would still leave a consumer with the protection of contrac-
tual warranties. Yet the Lemon Law was enacted precisely
because manufacturers could delay or avoid remedies
through costly litigation over the precise language of a con-
tractual warranty. See Hughes, 542 N.W.2d at 150. To give ef-
fect to the Lemon Law, Wisconsin courts have rejected crab-
bed readings that narrow its reach. See, e.g., Garcia v. Mazda
Motor of America, Inc., 2004 WI 93, ¶¶ 11–12, 682 N.W.2d 365,
369 (Wis. 2004) (collecting Wisconsin Supreme Court cases to
show that Lemon Law should be interpreted broadly).
The Lemon Law thus protects consumers who go to a re-
pair facility authorized by the manufacturer. That is true
whether the facility is a “manufacturer’s authorized motor
vehicle dealer” or not. With this understanding of the stat-
ute, the district court’s instructions were right on target.
In light of the evidence and the parties’ arguments, the
district court needed to instruct the jury how the law would
apply when the manufacturer told the consumer to have re-
pairs done by someone other than a “manufacturer’s author-
ized motor vehicle dealer.” The instructions correctly distin-
guished the narrower requirements for notice (restricted to
“the manufacturer or any authorized dealer”) from the more
flexible provision for repair at various facilities so long as the
repairs are made on the manufacturer’s behalf. They also fo-
cused the jury on the central issue of the case: whether Ama-
to Ford was acting on Thoroughbred’s behalf when repairing
Burzlaff’s vehicle, or whether he went there at his own risk
and without Thoroughbred’s authorization. The district
No. 13-2520 15
court’s instruction explained accurately and clearly the is-
sues relevant to the Wisconsin Lemon Law claim.
C. Sufficiency of the Evidence
In light of the foregoing discussion, Thoroughbred’s chal-
lenge to the sufficiency of the evidence is easily resolved. We
reverse a jury verdict for insufficient evidence only if, taking
all evidence and reasonable inferences in favor of the pre-
vailing party, no rational jury could have come to the verdict
rendered. See Woodward v. Correctional Medical Servs. of Illi-
nois, Inc., 368 F.3d 917, 926 (7th Cir. 2004).
The Wisconsin Lemon Law permitted Burzlaff to seek
repairs at any repair shop acting on behalf of Thoroughbred,
not merely at authorized Stallion dealers. See Wis. Stat.
§ 218.0171(2)(a). Testimony at trial indicated that Burzlaff
received permission to go to a Ford dealer and that Amato
Ford repeatedly received instructions, parts, and full pay-
ment from Thoroughbred for repairs on Burzlaff’s vehicle.
There was sufficient evidence to support the jury’s verdict in
favor of Burzlaff on his Lemon Law claim.
D. Submitting the Magnuson-Moss Claim to the Jury
Finally, Thoroughbred argues that the district court erred
by submitting the federal Magnuson-Moss claim to the jury.
It is undisputed that Burzlaff abandoned any request for
monetary damages under that statute before the case was
submitted to the jury. Thoroughbred contends that submit-
ting the claim to the jury amounted to “an invitation to jury
lawlessness.” See Eastern Trading Co. v. Refco, Inc., 229 F.3d
617, 621–22 (7th Cir. 2000) (unsupported defense should not
be submitted to jury, but error cannot be presumed to have
been prejudicial). To show that a trial court has committed a
16 No. 13-2520
reversible error by submitting a question to the jury, Thor-
oughbred must show (1) that the issue or claim was so weak
that submission to the jury was error and (2) prejudice to the
appellant through “‘a showing that the jury probably was
confused.’” Tammi v. Porsche Cars North America, Inc., 536
F.3d 702, 708 (7th Cir. 2008), quoting Eastern Trading, 229 F.3d
at 622.
The requirement of prejudice is critical. As a matter of
sound case management, a trial court will often find it pru-
dent to ask a jury to decide an issue even though one party
may have a strong or even an ultimately successful argu-
ment why it should prevail on the issue as a matter of law.
Sending such an issue to the jury will often avoid the need
for a new trial if the trial court has not correctly predicted
the appellate court’s (or its own) later decision on the same
issue. See Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 405–06 (2006) (endorsing this procedure), quot-
ing 9A Wright & Miller, Federal Practice and Procedure § 2533.
The court did not err in this case by submitting the Mag-
nuson-Moss claim to the jury. The jury was instructed that
the elements of the Magnuson-Moss claim were: (1) a defect,
(2) covered by warranty, (3) a reasonable opportunity for the
manufacturer to repair, and (4) the manufacturer’s failure to
repair within a reasonable time. Those elements overlapped
substantially with the Lemon Law claim. The evidence was
clearly sufficient to support a verdict as to liability, which
was the only issue presented to the jury. The Magnuson-
Moss claim also was not irrelevant because the court might
have awarded equitable relief available only under federal
law. Also, Burzlaff might still have recovered attorney fees
and costs under his federal claim even if the jury had found
No. 13-2520 17
for Thoroughbred on the Lemon Law claim. See 15 U.S.C. §
2310(d)(2). The availability of equitable relief is relevant even
though Burzlaff did not specifically request it beyond the
generic prayer for “all such other relief as the Court deems
just and equitable” in his complaint. The district court
should award the prevailing party any relief to which he is
entitled, whether or not he has asked for it in his complaint.
See Fed. R. Civ. P. 54(c).
Even if it had been an error to submit the Magnuson-
Moss claim to the jury, which it was not, Thoroughbred also
failed to show prejudice in the form of jury confusion or oth-
erwise. The special verdict form kept the questions on the
Wisconsin Lemon Law separate from those on the Mag-
nuson-Moss Act. Our decision in Tammi v. Porsche Cars North
America, Inc., 536 F.3d 702 (7th Cir. 2008), provides a useful
comparison. Porsche challenged an instruction that mixed
three issues together, making it difficult to tell if the two is-
sues unsupported by evidence had influenced a permissible
finding on the third issue. We affirmed, nevertheless, be-
cause jury confusion remained only a possibility and be-
cause Porsche could have mitigated any confusion by re-
questing separate questions on the special verdict but did
not. Id. at 708–09.
In this case, the district court properly presented the two
claims as distinct inquiries. Thoroughbred thus had the ben-
efit of separate questions like those that Porsche should have
requested in Tammi. We see no serious prospect of jury con-
fusion, let alone a probability. See Eastern Trading Co.,
229 F.3d at 622. The submission of the Magnuson-Moss claim
to the jury was neither error nor prejudicial.
18 No. 13-2520
The judgment of the district court is AFFIRMED. Burzlaff
may pursue a supplemental award of appellate attorney fees
before the district court.