01-1091 Dobbratz Trucking & Excavating, Inc. v. PACCAR, Inc. and Kenwirth Truck Co.

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“John Jewell, Dobbratz’s mechanical expert who ran tests on the truck, testified that he had ‘never seen another dump truck not be able to steer when stationary on concrete’ and that the truck’s steering problems were ‘consistent with a malfunction.’ Further, Richard Sedgley, a civil engineer employed by Kenworth, testified that a dump truck with a load of less than 20,000 pounds should be able to stationary steer and that a failure to do so indicates that the truck ‘doesn’t conform to the specification.’ This was sufficient to permit the jury to conclude that the truck’s inability to stationary steer was caused by a defect in materials or workmanship.”

Further, although plaintiff was still able to drive the truck, that does not mean that the truck was not substantially impaired.

“Dobbratz testified, and an expert agreed, that his dump truck was unable to perform a function necessary to complete many jobs adequately. This was sufficient to permit the jury to conclude that the stationary steering defect constituted a nonconformity.”

Finally, it was within the circuit court’s discretion to exclude expert testimony regarding plaintiff’s abuse of the truck by overloading when Kenworth had failed to disclose the expert’s opinions before the deadline set in the scheduling order.

“Kenworth had access to all the information it needed to inform Dobbratz during discovery that it would assert an abuse defense at trial and provide Dobbratz with the expert opinion upon which the defense would be based. The discovery deadline came and went, but Kenworth did not disclose this information and did not even seek to amend the scheduling order, much less show cause as to why an extension was necessary. …

“Kenworth complains that it ‘could hardly be blamed for not realizing the significance of every entry in every document received in discovery.’ But all Kenworth had to do was look at the weight slips Dobbratz provided to see that the truck had been overloaded. Given that Kenworth is a truck manufacturer, we cannot conclude that it was unfair of the circuit court to decide that Kenworth did not act diligently when it failed to discover the evidence earlier. Therefore, it was within the circuit court’s discretion to exclude expert testimony regarding the abuse issue when Kenworth had failed to disclose the expert’s opinions before the deadline set in the scheduling order.”

With regard to plaintiff’s claim to attorney’s fees, we agree with the trial court that attorney’s fees and costs, regardless of why they are awarded, are not part of the “amount recovered,” but rather are a shifting of the costs of litigation, and separate from recovery. The circuit court did not err in excluding attorney’s fees and costs from the amount recovered.

Judgment affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, O’Brien, J., Dykman, J.

Attorneys:

For Appellant: Frank J. Daily, Milwaukee; Mark A. Kircher, Milwaukee; Jeffrey Oxford Davis, Milwaukee; Cory L. Nettles, Milwaukee

For Respondent: Lawrence A. Towers, Brookfield