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How to Find a Reputable Auto Accident Lawyer : Pennsylvania auto accident lawyer

2009-01-03T23:32:00.000-08:00

How to Find a Reputable Auto Accident Lawyer

Pennsylvania auto accident lawyer,
When the inevitable happens and you are in an automobile accident, the first thought that flashes through your head is am I ok, and are the other people involved in the accident ok? If you had an auto accident and you weren't to blame, the anger then begins take its shape and you are faced with injuries and auto repair damages that you can't pay for. Finding a reputable auto accident lawyer who can guide you step by step on what to do next as well as counsel you on going after damages from the other party at fault in the accident or even the insurance agency is key to getting the damages that you deserve.

Accident lawyerInsurance companies tend to take the easy way out with many insurance claims that either pay out in large amounts or tend to have some form of liability involved. If you are a victim you should not be afraid to go up against the insurance companies no matter how big they are. If you pay your insurance premiums and you were not at fault in the accident, then you should go after damages. Here are a few key questions to ask an auto accident lawyer so that you can make a wise decision on which one to choose. How many cases have you won? Asking the lawyer how many cases they have won that are similar to yours is a good first step in the right direction.

Some lawyers have extensive knowledge and experience in litigation and mediation when it comes to auto accident cases. You need an attorney who has the expertise to be able to be aggressive in the court room with both the defending party as well as the insurance company. How much do you charge? Many attorneys that represent injury and accident cases do not charge an initial fee if they feel they can really win the case. An attorney that asks for hundreds of dollars up front may not be the right attorney to go through. If they are willing to go the extra mile with your case and put up a good fight in the courtroom, you want an attorney like that on board.

Do they take the time to answer your questions? Does your attorney take the time out to answer all the questions you have or do you feel rushed when you talk to them? If they are not willing to answer all of your questions and won't return your phone calls, chances are they won't work hard at defending your case. Someone you feel comfortable with as well understands your situation with compassion is the auto accident lawyer that you will want on your side.
By asking a few key questions and feeling comfortable with talking to the auto injury attorney , accident lawyer. Should be solid steps in finding the best attorney for your own individualized case.

Accident lawyer topicThis article, "How to Find a Reputable Auto Accident Lawyer", has been viewed 24 time(s) and submitted 10/14/2008 under the category of Legal.Article Source: http://www.discoveryarticles.com/authors/3958/Art-Gib
Accident lawyer

ALABAMA STATE LEMON LAWS

2008-12-13T04:01:00.000-08:00

ALABAMA STATE LEMON LAWS

Alabama Lemon Law
Alabama Code ง 8-20A-1 through ง 8-20A-6

Section 8-20A-1

Definitions

As used in this chapter, the following terms shall have the respective meanings as indicated:

(1) Consumer.

The purchaser, other than for purposes of resale, of a new or previously untitled motor vehicle used in substantial part for personal, family, or household purposes, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty.

(2) Motor vehicle.

Every vehicle intended primarily for use and operation on the public highways which is self-propelled; provided, however, that the term "motor vehicle" shall not apply to motor homes or to any motor vehicle having a manufacturer's gross vehicle weight rating (GVWR) of 10,000 pounds or more.

(3) Manufacturer.

The person, firm, or corporation engaged in the business of manufacturing, importing and/or distributing motor vehicles to be made available to a motor vehicle dealer for retail sale.

(4) Motor vehicle dealer or Authorized dealer.

The person, firm, or corporation operating under a dealer agreement from a manufacturer, importer, or distributor and who is engaged regularly in the business of buying, selling or exchanging motor vehicles in this state and who has in this state an established place of business.

(5) Express warranty.

A written warranty, so labeled, issued by the manufacturer of a new motor vehicle, including any terms or conditions precedent to the enforcement of obligations under that warranty.

(6) Nonconforming condition.

Any condition of a motor vehicle which shall not be in conformity with the terms of any express warranty issued by the manufacturer to a consumer and which: (i) significantly impairs the use, value or safety of the motor vehicle and (ii) occurs or arises solely in the course of the ordinary use of the motor vehicle, and which does not arise or occur as a result of abuse, neglect, modification, or alteration of the motor vehicle not authorized by the manufacturer, nor from any accident or other damage to the motor vehicle which occurs or arises after such motor vehicle was delivered by an authorized dealer to the consumer.

(7) Notice of a nonconforming condition.

A written statement which shall be delivered to the manufacturer and which shall describe the subject motor vehicle, the nonconforming condition, and shall describe all previous attempts to correct such nonconforming condition by identifying the person, firm or corporation who or which made such attempt, and the time when such attempt was made.

(8) Lemon law rights period.

The period ending one year after the date of the original delivery of a motor vehicle to a consumer or the first 12,000 miles of operation, whichever first occurs.

Section 8-20A-2

Obligations of manufacturer

(a) If a new motor vehicle does not conform to any applicable express warranty, and the consumer delivers the motor vehicle to the manufacturer, its agent, or its authorized dealer, and gives notice of the nonconforming condition during the lemon law rights period, the manufacturer of the motor vehicle shall be obligated to make such repairs to the motor vehicle as shall be necessary to remedy any nonconforming condition thereof. Such repairs shall be required even after the expiration of the lemon law rights period provided that notice of the nonconforming condition was first given during the lemon law rights period and provided further that the manufacturer's obligation to repair the nonconforming condition shall not extend beyond the period of 24 months following delivery of the vehicle or 24,000 miles, whichever occurs first.

(b) If, after reasonable attempts, the manufacturer, its agent, or its authorized dealer is unable to conform the motor vehicle to any express warranty by repairing or correcting a nonconforming condition of the motor vehicle which first occurred during the lemon law rights period, the manufacturer shall, at the option of the consumer, replace the motor vehicle with a comparable new motor vehicle or shall accept return of the vehicle from the consumer and refund to the consumer the following:

(1) The full contract price including, but not limited to, charges for undercoating, dealer preparation and transportation charges, and installed options, plus the nonrefundable portions of extended warranties and service contracts;

(2) All collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges;

(3) All finance charges incurred by the consumer after he first reported the nonconformity to the manufacturer, its agent, or its authorized dealer; and

(4) Any incidental damages which shall include the reasonable cost of alternative transportation during the period that the consumer is without the use of the motor vehicle because of the nonconforming condition. There shall be offset against any monetary recovery of the consumer a reasonable allowance for the consumer's use of the vehicle. Refunds shall be made to the consumer, and any lien holders, as their interests may appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first report of the nonconformity to the manufacturer, agent, or authorized dealer, and must be calculated by multiplying the full purchase price of the motor vehicle by a fraction having as its denominator 100,000 and having as its numerator the number of miles that the vehicle travelled before the first report of nonconformity.

(c) It shall be presumed that reasonable attempts to correct a nonconforming condition have been allowed by the consumer if, during the period of 24 months following delivery of the vehicle or 24,000 miles, whichever first occurs, either of the following events shall have occurred:

(1) The same nonconforming condition has been subject to repair attempts three or more times by the manufacturer, its agents or its authorized dealers, at least one of which occurred during the lemon law rights period, plus a final attempt by the manufacturer, and the same nonconforming condition continues to exist; or

(2) The motor vehicle is out of service and in the custody of the manufacturer, its agent, or an authorized dealer due to repair attempts (including the final repair attempt), one of which occurred during the lemon law rights period, for a cumulative total of 30 calendar days, unless such repair could not be performed because of conditions beyond the control of the manufacturer, its agents or authorized dealers, such as war, invasion, strike, fire, flood, or other natural disaster.

Section 8-20A-3

Cause of action against manufacturer

(a) A consumer sustaining damages as a proximate consequence of the failure by a manufacturer to perform its obligations imposed under this chapter may bring a civil action against the manufacturer to enforce the provisions of this chapter. Prior to the commencement of any such proceeding a consumer must give notice of a nonconforming condition by certified United States mail to the manufacturer and demand correction or repair of the nonconforming condition. If at the time such notice of a nonconforming condition is given to the manufacturer, a presumption has arisen that reasonable attempts to correct a nonconforming condition have been allowed, the manufacturer shall be given a final opportunity to cure the nonconforming condition. The manufacturer shall within seven calendar days of receiving the written notice of nonconforming condition notify the consumer of a reasonably accessible repair facility. After delivery of the new vehicle to the authorized repair facility by the consumer, the manufacturer shall attempt to correct the nonconforming condition and conform the vehicle to the express warranty within a period not to exceed 14 calendar days. If a manufacturer has established an informal dispute settlement procedure which is in compliance with federal rules and regulations, a consumer must first exhaust any remedy afforded to the consumer under the informal dispute procedure of the manufacturer before a cause of action may be instituted under the provisions of this chapter.

(b) It shall be an affirmative defense to any claim against the manufacturer under this chapter that: (i) an alleged nonconforming condition does not significantly impair the use, market value, or safety of the motor vehicle; or (ii) a nonconforming condition is a result of abuse, neglect, or any modification or alteration of a motor vehicle by a consumer that is not authorized by the manufacturer.

(c) If it is determined that the manufacturer has breached its obligations imposed under this chapter, then the consumer shall be entitled to recover, in addition to the remedy provided under Section 8-20A-2 above, an additional award for reasonable attorneys fees.

Section 8-20A-4

Resale of returned motor vehicle

If a motor vehicle has been returned to the manufacturer under the provisions of this chapter or a similar statute of another state, whether as the result of a legal action or as the result of an informal dispute settlement proceeding, it may not be resold in this state unless:

(1) The manufacturer discloses in writing to the subsequent purchaser the fact that the motor vehicle was returned under the provisions of this chapter and the nature of the nonconformity to the vehicle warranty.

(2) The manufacturer returns the title of the motor vehicle to the Alabama Department of Revenue advising of the return of the motor vehicle under provisions of this chapter with an application for title in the name of the manufacturer. The Department of Revenue shall brand the title issued to the manufacturer and all subsequent titles to the motor vehicle with the following statement:

THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY.

Section 8-20A-5

No dealership liability

Nothing in this chapter imposes any liability upon a motor vehicle dealer or authorized dealer or creates a cause of action by a consumer against a motor vehicle dealer or authorized dealer. A motor vehicle dealer or authorized dealer may not be made a party defendant in any action involving or relating to this chapter. The manufacturer shall not charge back or require reimbursement by a motor vehicle dealer or authorized dealer for any costs, including, but not limited to, any refunds or vehicle replacements, incurred by the manufacturer arising out of this chapter.

Section 8-20A-6

Statute of limitations

Any action brought under this chapter against the manufacturer shall be commenced within three years following the date of original delivery of the motor vehicle to the consumer.

ALASKA STATE LEMON LAWS

2008-12-13T04:00:00.001-08:00

ALASKA STATE LEMON LAWS

Alaska Lemon Law
Alaska Statutes, Title 45, Chapter 45, งง 300-360

AS 45.45.300. Repairs Required.

If a new motor vehicle does not conform to an express warranty that is applicable to it and the owner of the vehicle reports the defect or condition to the manufacturer of the vehicle or to the manufacturer’s or distributor’s dealer during the term of the warranty, the manufacturer, distributor, dealer, or a repairing agent shall make the necessary repairs to conform the vehicle to the express warranty.

AS 45.45.305. Replacement or Refund.

If during the term of the express warranty or within one year from the date of delivery of the motor vehicle to the original owner, whichever period terminates first, the manufacturer, distributor, dealer, or repairing agent is unable to conform the motor vehicle to an applicable express warranty after a reasonable number of attempts, the manufacturer or distributor shall accept the return of the nonconforming motor vehicle, and, at the owner's option, shall replace the nonconforming vehicle with a new, comparable vehicle or shall refund the full purchase price to the owner less a reasonable allowance for the use of the motor vehicle from the time it was delivered to the original owner. A refund under this section shall be made to a lienholder of record, if any, and the owner, as their interests may appear.

AS 45.45.310. Notice By Owner.

In order to claim a refund or replacement under AS 45.45.305, the owner shall give written notice by certified mail to the manufacturer and its dealer or repairing agent at any time before 60 days have elapsed after the expiration of the express warranty or the one-year period after the date of delivery of the motor vehicle to the original owner, whichever period terminates first, (1) stating that the vehicle has a nonconformity; (2) providing a reasonable description of the nonconformity; (3) stating that the manufacturer, distributor, dealer, or repairing agent has made a reasonable number of attempts to conform the vehicle; and (4) stating that the owner demands a refund or replacement vehicle to be delivered on the 60th day after the mailing of the written notice. Within 30 days after receiving the notice required by this section the manufacturer may make a final attempt to conform the vehicle before a refund or replacement is made under AS 45.45.305.

AS 45.45.315. Exceptions.

An owner may not receive a refund or replacement under AS 45.45.300 - 45.45.360 if the manufacturer or distributor shows that the nonconformity complained of

(1) does not substantially impair either the use or the market value of the motor vehicle; or

(2) is the result of alteration of the motor vehicle by the owner or a person other than a dealer or repairing agent that is not authorized by the manufacturer or distributor; or abuse or neglect by the owner or a person other than the dealer or repairing agent.

AS 45.45.320. Presumption.

A presumption that a reasonable number of attempts have been made to conform a motor vehicle under an applicable express warranty is established if:

(1) the same nonconformity has been subject to repair three or more times by the manufacturer, distributor, dealer, or repairing agent during the term of the express warranty or the one-year period after delivery of the motor vehicle to the original owner, whichever period terminates first, but the nonconformity continues to exist; or

(2) the vehicle is out of service for repair for a total of 30 or more business days during the express warranty term or the one-year period referred to in (1) of this section, whichever period terminates first; any period of time that repairs are not performed for reasons that are beyond the control of the manufacturer, distributor, dealer, or repairing agent is excluded from the 30-day time period referred to in this paragraph.

AS 45.45.325. Parts Availability.

A manufacturer whose vehicles are sold in the state through an authorized dealer shall provide its dealer or repairing agent with any part necessary to make a repair of a nonconformity covered under an express warranty, as soon as possible, without additional charge for freight or handling, if the part is not in the dealer's or agent's inventory when the nonconforming vehicle is brought to the dealer or repairing agent for repair.

AS 45.45.335. Resale Without Disclosure Prohibited.

A motor vehicle returned under AS 45.45.305 may not be resold by the manufacturer or distributor in the state unless full disclosure of the reason for the return is made to the prospective buyer before the resale is concluded.

AS 45.45.340. Other rights and remedies.

The provisions of AS 45.45.300 - 45.45.360 do not limit other rights and remedies that may be available to the owner of a motor vehicle under other provisions of law. This section does not create a new cause of action against a dealer or repairing agent who sells or attempts to repair a motor vehicle found to be nonconforming under AS 45.45.300 - 45.45.360.

AS 45.45.345. Repair Facilities.

A manufacturer or distributor or motor vehicles who authorizes the sale of the manufacturer's or distributor's motor vehicles in the state shall maintain authorized dealership facilities within the state that are able to perform the service and make the repairs required by the manufacturer's express warranty and by AS 45.45.300 - 45.45.360.

AS 45.45.350. Reimbursement of Shipping Costs.

A manufacturer or distributor who accepts the return of a nonconforming motor vehicle under AS 45.45.305 shall reimburse the owner for any reasonable cost incurred in shipping the vehicle to and from the nearest authorized facility for warranty service and repair of a nonconformity that causes the return of the vehicle.

AS 45.45.355. Arbitration or Mediation.

If a manufacturer or distributor has established an informal dispute settlement procedure that substantially complies with the requirements of 16 C.F.R. 703, as that section may be amended, or if the manufacturer or distributor, after receipt of notice required by AS 45.45.310, offers in writing to participate in an arbitration or mediation process with the owner and the arbitration or mediation decision is binding on the manufacturer or distributor but not on the owner, and if the informal dispute settlement or arbitration or mediation process is approved by the attorney general, the provisions of AS 45.45.305 concerning refund or replacement or AS 45.45.350 concerning shipping costs do not apply to an owner who has not first resorted to the informal dispute settlement procedure or arbitration or mediation process.

AS 45.45.360. Definitions

Definitions in AS 45.45.300 - 45.45.360:

(1) "dealer" means a person who has obtained a franchise from, or is authorized by, a motor vehicle manufacturer to engage in the retail sale and warranty repair of the manufacturer's new motor vehicles in the state;

(2) "distributor" means a person who is authorized by a manufacturer to engage in the wholesale distribution of the manufacturer's new motor vehicles in the state;

(3) "express warranty" or "warranty" means an express written warranty provided by the manufacturer of a new motor vehicle;

(4) "full purchase price" means the total price paid for a motor vehicle by the original owner, including costs added to the retail price, such as original registration fees, transportation fees, dealer preparation, and dealer installed options;

(5) "manufacturer" means a person who by labor transforms raw materials and component parts into motor vehicles for wholesale or retail sale;

(6) "motor vehicle" or "vehicle" means a land vehicle having four or more wheels, that is self-propelled by a motor, is normally used for personal, family, or household purposes, and is required to be registered under AS 28.10; but does not include a tractor, farm vehicle, or a vehicle designed primarily for off-road use;

(7) "nonconformity" means a defect or condition in a motor vehicle caused by a manufacturer, distributor, dealer, or repairing agent that substantially impairs the use or market value of a vehicle;

(8) "owner" means a purchaser, other than for resale, of a new motor vehicle, and a person to whom ownership of the motor vehicle is transferred in conformity with AS 28;

(9) "reasonable allowance" means an amount attributable to an owner's use of a motor vehicle; a "reasonable allowance" may not exceed an amount equal to the depreciation in value of the vehicle for the period during which the vehicle is available for use by the owner, calculated by a straight line depreciation method over seven years, plus an amount equal to the depreciation in value of the vehicle that is caused by any neglect or abuse by the owner; or body damage not caused by a nonconformity;

(10) "repairing agent" means a person who has been specifically authorized by a motor vehicle manufacturer or distributor to perform warranty repairs in the state on one or more of the manufacturer's or distributor's motor vehicles;

(11) "substantially impairs the market value" means a nonconformity that substantially decreases the dollar value of a vehicle to the owner when compared to the dollar value of a similar vehicle that does not have the nonconformity;

(12) "substantially impairs the use" means a nonconformity that prevents a motor vehicle from being operated or makes the vehicle unsafe to operate.

ARIZONA STATE LEMON LAWS

2008-12-13T03:59:00.000-08:00

ARIZONA STATE LEMON LAWS

Arizona Lemon Law
Arizona Revised Statutes งง 44-1261 to 44-1265

44-1261 . Definitions; exemptions

A. In this article, unless the context otherwise requires:

1. "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

2. "Motor vehicle" means a self-propelled vehicle designated primarily for the transportation of persons or property over the public highways.

B. If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but does not include those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space.

C. The provisions of this article do not apply to a motor vehicle with a declared gross weight over ten thousand pounds.

44-1262 . New motor vehicle; repair during express warranty or two years or twenty-four thousand miles

A. If a new motor vehicle does not conform to all applicable express warranties:

1. A consumer shall report the nonconformity to the manufacturer, its agent or its authorized dealer or issuer of a warranty during the shorter of the following:

(a) The term of the express warranty.

(b) The period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier.

2. The manufacturer, its agent or its authorized dealer or the issuer of a warranty shall make those repairs that are necessary to conform the motor vehicle to such express warranties, even if the repairs are made after the expiration of the term or two year period or twenty-four thousand mile limit.

B. This section does not limit in any way the remedies available to a consumer under a new motor vehicle warranty that extends beyond the limits prescribed in this section.

44-1263 . Inability to conform motor vehicle to express warranty; replacement of vehicle or refund of monies; affirmative defenses

A. If the manufacturer, its agents or its authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle. The manufacturer shall make refunds to the consumer and lienholder, if any, as their interests appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first written report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

B. It is an affirmative defense to any claim under this article that either:

1. An alleged nonconformity does not substantially impair the use and market value of the motor vehicle.

2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.

44-1264 . Reasonable number of attempts to conform motor vehicle to express warranty; presumption

A. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if either:

1. The same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the shorter of the express warranty term or the period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, but the nonconformity continues to exist.

2. The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the shorter of the express warranty term or the two year period or twenty-four thousand miles, whichever is earlier.

B. The term of an express warranty, the two year period and the thirty day period are extended by any period of time during which repair services are not available to the consumer because of any war, invasion, strike, fire, flood or other natural disaster.

C. The presumption prescribed in this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer of the alleged defect and has had an opportunity to cure the alleged defect.

44-1265 . Nonlimitation of rights; refund or replacement not required if certain procedures not followed; attorney fees

A. If a manufacturer has established or participates in an informal dispute settlement procedure which complies in all respects with 16 code of federal regulations part 703, section 44-1263 relating to refunds or replacement does not apply to any consumer who has not first resorted to such a procedure.

B. A consumer shall begin an action under this article within six months following the earlier of expiration of the express warranty term or two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. If a consumer prevails in an action under this article, the court shall award the consumer reasonable costs and attorney fees.

44-1266 . Notice to dealers and prospective purchasers

A. A manufacturer who has been ordered by judgment or decree to replace or repurchase a motor vehicle pursuant to this article or the repair or replace laws of another state shall, before offering the motor vehicle for resale, attach to the motor vehicle written notification indicating the motor vehicle has been replaced or repurchased. A consumer has a cause of action against any person who removes the written notification from the motor vehicle, except as provided in subsection B of this section.

B. A motor vehicle dealer, broker, wholesale motor vehicle dealer or wholesale motor vehicle auction dealer as defined in section 28-4301 who offers for sale a motor vehicle that has been replaced or repurchased pursuant to this article or the repair or replace laws of another state shall provide the purchaser with the manufacturer's written notification indicating that the motor vehicle has been replaced or repurchased before completion of the sale.

C. It shall constitute an affirmative defense in an action brought pursuant to subsection A of this section against a motor vehicle dealer or an agent of a motor vehicle dealer that the notification described in subsection A of this section was removed by someone other than the dealer or agent without the knowledge of the dealer or agent.

ARKANSAS STATE LEMON LAWS

2008-12-13T03:58:00.000-08:00

ARKANSAS STATE LEMON LAWS

Arkansas Lemon Law
Arkansas Code, ง4-90-401 to 417

This subchapter shall be known and may be cited as the "Arkansas New Motor Vehicle Quality Assurance Act".

4-90-402. Legislative determinations and intent

The Arkansas General Assembly recognizes that a motor vehicle is a major consumer acquisition and that a defective motor vehicle undoubtedly creates a hardship for the consumer. The Arkansas General Assembly further recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the Arkansas General Assembly that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time. It is further the intent of the Arkansas General Assembly to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this subchapter. However, nothing in this subchapter shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.

4-90-403. Definitions

As used in this subchapter, unless the context otherwise requires:

(1)"Calendar day" means any day of the week other than a legal holiday;

(2)"Collateral charges" means those additional charges to a consumer wholly incurred as a result of the acquisition of the motor vehicle. For the purposes of this subchapter, collateral charges include, but are not limited to, manufacturer-installed or agent-installed items, earned finance charges, sales taxes, title charges, and charges for extended warrantiesprovided by the manufacturer, its subsidiary, or agent;

(3) "Condition" means a general problem that may be attributable to a defect in more than one (1) part;

(4) "Consumer" means the purchaser or lessee, other than for the purposes of lease or resale, of a new or previously untitled motor vehicle, or any other person entitled by the terms of the warranty to enforce the obligations of the warranty during the duration of the motor vehicle quality assurance period, provided the purchaser has titled and registered the motor vehicle as prescribed by law;

(5) "Incidental charges" means those reasonable costs incurred by the consumer, including, but not limited to, towing charges and the costs of obtaining alternative transportation which are directly caused by the nonconformity or nonconformities which are the subject of the claim, but shall not include loss of use, loss of income, or personal injury claims;

(6) "Lease price" means the aggregate of:

(A) The lessor's actual purchase costs;

(B) Collateral charges, if applicable;

(D) Any insurance or other costs expended by the lessor for the benefit of the lease;

(E) An amount equal to state and local sales taxes, not otherwise included as collateral charges, paid by the lessor when the vehicle was initially purchased; and

(F) An amount equal to five percent (5%) of the lessor's actual purchase price;

(7) "Lessee" means any consumer who leases a motor vehicle for one (1) year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to such motor vehicle;

(8) "Lessee cost" means the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle;

(9) "Lessor" means a person who holds title to a motor vehicle leased to a lessee under the written lease agreement or who holds the lessor's rights under such agreement;

(10) "Manufacturer" means:

(A) Any person who is engaged in the business of constructing or assembling new motor vehicles or installing, on previously assembled vehicle chassis, special bodies or equipment which, when installed, form an integral part of the new motor vehicle; or

(B) In the case of motor vehicles not manufactured in the United States, any person who is engaged in the business of importing new motor vehicles into the United States for the purpose of selling or distributing new motor vehicles to new motor vehicle dealers;

(11) "Motor vehicle" or "vehicle" means any self-propelled vehicle licensed, purchased, or leased in this state and primarily designed for the transportation of persons or property over the public streets and highways, but does not include mopeds, motorcycles, the living facilities of a motor home, or vehicles over ten thousand pounds (10,000 lbs.) gross vehicle weight rating. For purposes of this definition, the limit of ten thousand pounds (10,000 lbs.) gross vehicle weight rating does not apply to motor homes;

(12) "Motor vehicle quality assurance period" means a period of time that:

(A) Begins: (i) On the date of original delivery of a motor vehicle; or (ii) In the case of a replacement vehicle provided by a manufacturer to a consumer under this subchapter, on the date of delivery of the replacement vehicle to the consumer; and

(B) Ends twenty-four (24) months after the date of the original delivery of the motor vehicle to a consumer, or the first twenty-four thousand (24,000) miles of operation attributable to the consumer, whichever is later;

(13) "Nonconformity" means any specific or generic defect or condition or any concurrent combination of defects or conditions that:

(A) Substantially impairs the use, market value, or safety of a motor vehicle; or

(B) Renders the motor vehicle nonconforming to the terms of an applicable manufacturer's express warranty or implied warranty of merchantability;

(14) "Person" means any natural person, partnership, firm, corporation, association, joint venture, trust, or other legal entity;

(15) "Purchase price" means the cash price paid for the motor vehicle appearing in the sales agreement or contract, including any net allowance for a trade-in vehicle;

(16) "Replacement motor vehicle" means a motor vehicle which is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle replaced existed at the time of the original acquisition; and

(17) "Warranty" means any written warranty issued by the manufacturer, or any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale or lease of a motor vehicle to a consumer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

ง 4-90-404. Notice by consumer - Disclosure by manufacturer, agent, or dealer

(a) (1) A consumer must notify the manufacturer of a claim under this subchapter if the manufacturer has made the disclosure required by subsection (b) of this section.

(2) However, if the manufacturer has not made the required disclosure, the consumer is not required to notify the manufacturer of a claim under this subchapter.

(b) (1) At the time of the consumer's purchase or lease of the vehicle, the manufacturer, its agent, or an authorized dealer shall provide to the consumer a written statement that explains the consumer's rights and obligations under this subchapter.

(2) The written statement shall be prepared by the Consumer Protection Division of the Office of the Attorney General and shall include the telephone number of the Consumer Protection Division that the consumer can contact to obtain information regarding his or her rights and obligations under this subchapter.

(3) For each failure of the manufacturer, its agent, or an authorized dealer to provide to a consumer the written statement required under this section, the manufacturer shall be liable to the State of Arkansas for a civil penalty of not less than twenty-five dollars($25.00) nor more than one thousand dollars ($1,000).

(c) (1) The manufacturer shall clearly and conspicuously disclose to the consumer, in the warranty or owner's manual, that written notice of the nonconformity is required before the buyer may be eligible for a refund or replacement of the vehicle.

(2) The manufacturer shall provide the consumer with conspicuous notice of the address and phone number for its zone, district, or regional office for this state at the time of vehicle acquisition, to which the buyer must send notification.

ง 4-90-405. Required warranty repairs

If a motor vehicle does not conform to the warranty and the consumer reports the nonconformity to the manufacturer, its agent, or authorized dealer during the motor vehicle quality assurance period, the manufacturer, its agent, or authorized dealer shall make such repairs as are necessary to correct the nonconformity, even if the repairs are made after the expiration of the term of protection.

ง 4-90-406. Failure to make required repairs

(a) (1) After three (3) attempts have been made to repair the same nonconformity that substantially impairs the motor vehicle, or after one (1) attempt to repair a nonconformity that is likely to cause death or serious bodily injury, the consumer shall give written notification, by certified or registered mail, to the manufacturer of the need to repair the nonconformity in order to allow the manufacturer a final attempt to cure the nonconformity.

(2) The manufacturer shall, within ten (10) days after receipt of the notification, notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility, and, after delivery of the vehicle to the designated repair facility by the consumer, the manufacturer shall, within ten (10) days, conform the motor vehicle to the warranty.

(3) If the manufacturer fails to notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility or fails to perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply and a nonrebuttable presumption of a reasonable number of attempts to repair arises.

(b)(1) (A) If the manufacturer, its agent, or authorized dealer has not conformed the motor vehicle to the warranty by repairing or correcting one (1) or more nonconformities that substantially impair the motor vehicle after a reasonable number of attempts, the manufacturer, within forty (40) days, shall:

(i) At the time of its receipt of payment of a reasonable offset for use by the consumer, replace the motor vehicle with a replacement motor vehicle acceptable to the consumer; or

(ii) Repurchase the motor vehicle from the consumer or lessor and refund to the consumer or lessor the full purchase price or lease price, less a reasonable offset for use and less a reasonable offset for physical damage sustained to the vehicle while under the ownership of the consumer.

(B) The replacement or refund shall include payment of all collateral and reasonably incurred incidental charges.

(2) (A) The consumer shall have an unconditional right to choose a refund rather than a replacement.

(B) At the time of such refund or replacement, the consumer, lienholder, or lessor shall furnish to the manufacturer clear title to and possession of the motor vehicle.

(3) The amount of reasonable offset for use by the consumer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the consumer, including any charges for transportation and manufacturer-installed or agent-installed options, by a fraction having as its denominator one hundred twenty thousand (120,000) and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer, its agent, or authorized dealer for correction of the problem that gave rise to the nonconformity.

ง 4-90-407. Refunds

(a)(1) Refunds shall be made to the consumer and lienholder of record, if any, as their interests may appear.

(2) If applicable, refunds shall be made to the lessor and lessee as follows:

(A) The lessee shall receive the lessee cost less a reasonable offset for use; and

(B) The lessor shall receive the lease price less the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle. (b) If the manufacturer makes a refund to the lessor or lessee pursuant to this subchapter, the consumer's lease agreement with the lessor shall be terminated upon payment of the refund and no penalty for early termination shall be assessed.

(C) If a replaced vehicle was financed by the manufacturer, its subsidiary, or agent, the manufacturer, subsidiary, or agent may not require the buyer to enter into any refinancing agreement concerning a replacement vehicle that would create any financial obligations upon the buyer beyond those of the original financing agreement.

ง 4-90-408. Reimbursement of towing and rental costs

Whenever a vehicle is replaced or refunded under this subchapter, the manufacturer shall reimburse the consumer for necessary towing and rental costs actually incurred as a direct result of the nonconformity. ง 4-90-409. Option to retain use of vehicle. A consumer has the option of retaining the use of any vehicle returned under this subchapter until the time that the consumer has been tendered a full refund or a replacement vehicle of comparable value.

ง 4-90-410. Presumption of reasonable attempts to repair - Extension of time to repair in case of war, invasion, strike, fire, flood, or natural disaster

(a) A rebuttable presumption of a reasonable number of attempts to repair is considered to have been undertaken to correct a nonconformity if:

(1) The nonconformity has been subject to repair as provided in ง 4-90-406(a), but the nonconformity continues to exist;

(2) The vehicle is out of service by reason of repair, or attempt to repair, any nonconformity for a cumulative total of thirty (30) calendar days; or

(3) There have been five (5) or more attempts, on separate occasions, to repair any nonconformities that together substantially impair the use and value of the motor vehicle to the consumer.

(b) (1) The thirty (30) calendar days in subdivision (a)(2) of this section shall be extended by any period of time during which repair services are not available as a direct result of war, invasion, strike, fire, flood, or natural disaster.

(2) The manufacturer, its agent, or authorized dealer shall provide or make provisions for the free use of a vehicle to any consumer whose vehicle is out of service beyond thirty (30) days by reason of delayed repair as a direct result of war, invasion, strike, fire, flood, or natural disaster.

(c) The burden is on the manufacturer to show that the reason for an extension under subsection (b) of this section was the direct cause for the failure of the manufacturer, its agent, or authorized dealer to cure any nonconformity during the time of the event.

ง 4-90-411. Diagnosis or repair - Documentation

(a) A manufacturer, its agent, or authorized dealer may not refuse to diagnose or repair any vehicle for the purpose of avoiding liability under this subchapter.

(b) (1) A manufacturer, its agent, or authorized dealer shall provide a consumer with a written repair order each time the consumer's vehicle is brought in for examination or repair.

(2) The repair order must indicate all work performed on the vehicle, including examination of the vehicle, parts, and labor.

ง 4-90-412. Resale of returned nonconforming vehicle

If a motor vehicle has been replaced or repurchased by a manufacturer as the result of a court judgment, an arbitration award, or any voluntary agreement entered into between a manufacturer and a consumer that occurs after a consumer complaint has been investigated and evaluated pursuant to this subchapter or a similar law of another state, the motor vehicle may not be resold in Arkansas unless:

(1) The manufacturer provides the same express warranty the manufacturer provided to the original purchaser, except that the term of the warranty need only last for twelve thousand (12,000) miles or twelve (12) months after the date of resale, whichever occurs first; and

(2) The manufacturer provides a written disclosure, signed by the consumer, indicating that the vehicle was returned to the manufacturer because of a nonconformity not cured within a reasonable time as provided by Arkansas law.

ง 4-90-413. Affirmative defenses

It is an affirmative defense to any claim under this subchapter that:

(1) The nonconformity, defect, or condition does not substantially impair the use, value, or safety of the motor vehicle;

(2) The nonconformity, defect, or condition is the result of an accident, abuse, neglect, or unauthorized modification or alteration of the motor vehicle by persons other than the manufacturer, its agent, or authorized dealer;

(3) The claim by the consumer was not filed in good faith; or

(4) Any other defense allowed by law that may be raised against the claim.

ง 4-90-414. Informal proceeding as precedent

(a) (1) Any manufacturer doing business in this state, entering into franchise agreements for the sale of its motor vehicles in this state, or offering express warranties on its motor vehicles sold or distributed for sale in this state, shall operate, or participate in, an informal dispute settlement proceeding located in the State of Arkansas which complies with the requirements of this section.

(2) The provisions of ง 4-90-406(b)(1) and (2) concerning refunds or replacement do not apply to a consumer who has not first used this informal proceeding before commencing a civil action, unless the manufacturer allows a consumer to commence an action without first using this informal procedure.

(3) (A) The consumer shall receive adequate written notice from the manufacturer of the existence of the procedure. (B) Adequate written notice may include the incorporation of the informal disputesettlement procedure into the terms of the written warranty to which the motorvehicle does not conform.

(b) The informal dispute procedure must be certified by the Consumer Protection Division of the Office of the Attorney General as meeting the following criteria:

(1) The informal dispute procedure must comply with the minimum requirements of the Federal Trade Commission for informal dispute settlement procedures as set forth in 16 C.F.R. ง 703.1 et seq., as in effect on the date of adoption of this subchapter, unless any provision of 16 C.F.R. ง 703.1 et seq. is in conflict with this subchapter, in which casethe provisions of this subchapter shall govern;

(2) The informal dispute procedure must prescribe a reasonable time, not to exceed thirty (30) days after the decision is accepted by the buyer, within which the manufacturer or its agent must fulfill the terms of its decisions;

(3)(A) No documents shall be received by any informal dispute procedure unless those documents have been provided to each of the parties in the dispute at or prior to the proceeding, with an opportunity for the parties to comment on the documents either in writing or orally.

(B) If a consumer is present during the informal dispute proceeding, the consumer may request postponement of the proceeding meeting to allow sufficient time to review any documents presented at the time of the meeting which had not been presented to the consumer prior to the time of the meeting;

(4)(A) The informal dispute procedure shall allow each party to appear and make an oral presentation within the State of Arkansas unless the consumer agrees to submit the dispute for decision on the basis of documents alone or by telephone, or unless the party fails to appear for an oral presentation after reasonable prior written notice.

(B) If the consumer agrees to submit the dispute for decision on the basis of documents alone, then the manufacturer or dealer representatives may not participate in the discussion or decision of the dispute;

(5) Consumers shall be given an adequate opportunity to contest a manufacturer's assertion that a nonconformity falls within intended specifications for the vehicle by having the basis of the manufacturer's claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement hearing;

(6) A consumer may not be charged with a fee to participate in an informal dispute procedure; and

(7) Any party to the dispute has the right to be represented by an attorney in an informal dispute proceeding.

(c) (1)(A) The informal dispute procedure shall annually submit a pool of not less than six(6) members who are appointed with the advice and consent of the Consumer Protection Division of the Office of the Attorney General.

(B) Selected strictly by rotation, one (1) member shall hear disputes scheduled for a particular session unless the consumer requests a panel of three (3) members, in which case three (3) members shall hear disputes scheduled for a particular three-member session.

(C) If the informal dispute procedure deems it appropriate to require the services of an independent investigator, such investigator shall be selected from a pool of not less than four (4) members who are appointed annually with the advice and consent of the Consumer Protection Division of the Office of the Attorney General and from which the particular investigator shall be selected strictly by rotation.

(2) Upon notification to the administrator of any informal dispute procedure that a determination has been made by the Consumer Protection Division of the Office of the Attorney General that a member of any pool is not conforming to standards of fairness and impartiality, that member shall be immediately removed from the pool.

ง 4-90-415. Enforcement - Exclusivity - Costs and expenses

(a) A consumer may bring a civil action to enforce this subchapter in a court of competent jurisdiction.

(b) This subchapter does not limit the rights and remedies that are otherwise available to a consumer under any applicable provisions of law.

(c) A consumer who prevails in any legal proceeding under this subchapter is entitled to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based upon actual time expended by the attorney, determined by the court to have been reasonably incurred by the consumer for or in connection with the commencement and prosecution of the action.

ง 4-90-416. Time limitation for commencement of action

(a) An action brought under this subchapter must be commenced within two (2) years following the date the buyer first reports the nonconformity to the manufacturer, its agent, or authorized dealer.

(b) When the buyer has commenced an informal dispute settlement procedure described in ง 4-90-414, the two-year period specified in subsection (a) of this section begins to run at the time the informal dispute settlement procedure is being commenced.

ง 4-90-417. Deceptive trade practices

A violation of any of the provisions of this subchapter shall be deemed a deceptive trade practice under ง 4-88-101 et seq.

CALIFORNIA STATE LEMON LAWS

2008-12-13T03:57:00.000-08:00

CALIFORNIA STATE LEMON LAWS

California Lemon Law
California Civil Code Section 1793.2, 1793.22, 1794

1793.2. (a) Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall:

(1) (A) Maintain in this state sufficient service and repair facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of those warranties or designate and authorize in this state as service and repair facilities independent repair or service facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties.

(B) As a means of complying with this paragraph, a manufacturer may enter into warranty service contracts with independent service and repair facilities. The warranty service contracts may provide for a fixed schedule of rates to be charged for warranty service or warranty repair work. However, the rates fixed by those contracts shall be in conformity with the requirements of subdivision (c) of Section 1793.3. The rates established pursuant to subdivision (c) of Section 1793.3, between the manufacturer and the independent service and repair facility, shall not preclude a good faith discount which is reasonably related to reduced credit and general overhead cost factors arising from the manufacturer's payment of warranty charges direct to the independent service and repair facility. The warranty service contracts authorized by this paragraph shall not be executed to cover a period of time in excess of one year, and may be renewed only by a separate, new contract or letter of agreement between the manufacturer and the independent service and repair facility.

(2) In the event of a failure to comply with paragraph (1) of this subdivision, be subject to Section 1793.5.

(3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.

(b) Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or his representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

(c) The buyer shall deliver nonconforming goods to the manufacturer's service and repair facility within this state, unless, due to reasons of size and weight, or method of attachment, or method of installation, or nature of the nonconformity, delivery cannot reasonably be accomplished. If the buyer cannot return the nonconforming goods for any of these reasons, he or she shall notify the manufacturer or its nearest service and repair facility within the state. Written notice of nonconformity to the manufacturer or its service and repair facility shall constitute return of the goods for purposes of this section. Upon receipt of that notice of nonconformity, the manufacturer shall, at its option, service or repair the goods at the buyer's residence, or pick up the goods for service and repair, or arrange for transporting the goods to its service and repair facility. All reasonable costs of transporting the goods when a buyer cannot return them for any of the above reasons shall be at the manufacturer's expense. The reasonable costs of transporting nonconforming goods after delivery to the service and repair facility until return of the goods to the buyer shall be at the manufacturer's expense.

(d) (1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

(A) In the case of replacement, the manufacturer shall replace the buyer's vehicle with a new motor vehicle substantially identical to the vehicle replaced. The replacement vehicle shall be accompanied by all express and implied warranties that normally accompany new motor vehicles of that specific kind. The manufacturer also shall pay for, or to, the buyer the amount of any sales or use tax, license fees, registration fees, and other official fees which the buyer is obligated to pay in connection with the replacement, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(B) In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(C) When the manufacturer replaces the new motor vehicle pursuant to subparagraph (A), the buyer shall only be liable to pay the manufacturer an amount directly attributable to use by the buyer of the replaced vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. When restitution is made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount directly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law.

1793.22

(a)This section shall be known and may be cited as the Tanner Consumer Protection Act.

(b) It shall be presumed that a reasonable number of attempts have been made to conform a new motor vehicle to the applicable express warranties if, within 18 months from delivery to the buyer or 18,000 miles on the odometer of the vehicle, whichever occurs first, one or more of the following occurs:

(1) The same nonconformity results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been subject to repair two or more times by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity.

(2) The same nonconformity has been subject to repair four or more times by the manufacturer or its agents and the buyer has at least once directly notified the manufacturer of the need for the repair of the nonconformity.

(3) The vehicle is out of service by reason of repair of nonconformities by the manufacturer or its agents for a cumulative total of more than 30 calendar days since delivery of the vehicle to the buyer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer or its agents. The buyer shall be required to directly notify the manufacturer pursuant to paragraphs (1) and (2) only if the manufacturer has clearly and conspicuously disclosed to the buyer, with the warranty or the owner's manual, the provisions of this section and that of subdivision (d) of Section 1793.2, including the requirement that the buyer must notify the manufacturer directly pursuant to paragraphs (1) and (2). The notification, if required, shall be sent to the address, if any, specified clearly and conspicuously by the manufacturer in the warranty or owner's manual. This presumption shall be a rebuttable presumption affecting the burden of proof, and it may be asserted by the buyer in any civil action, including an action in small claims court, or other formal or informal proceeding.

(c) If a qualified third-party dispute resolution process exists, and the buyer receives timely notification in writing of the availability of that qualified third-party dispute resolution process with a description of its operation and effect, the presumption in subdivision (b) may not be asserted by the buyer until after the buyer has initially resorted to the qualified third-party dispute resolution process as required in subdivision (d). Notification of the availability of the qualified third-party dispute resolution process is not timely if the buyer suffers any prejudice resulting from any delay in giving the notification. If a qualified third-party dispute resolution process does not exist, or if the buyer is dissatisfied with that third-party decision, or if the manufacturer or its agent neglects to promptly fulfill the terms of the qualified third-party dispute resolution process decision after the decision is accepted by the buyer, the buyer may assert the presumption provided in subdivision (b) in an action to enforce the buyer's rights under subdivision (d) of Section 1793.2. The findings and decision of a qualified third-party dispute resolution process shall be admissible in evidence in the action without further foundation. Any period of limitation of actions under any federal or California laws with respect to any person shall be extended for a period equal to the number of days between the date a complaint is filed with a third-party dispute resolution process and the date of its decision or the date before which the manufacturer or its agent is required by the decision to fulfill its terms if the decision is accepted by the buyer, whichever occurs later.

(d)A qualified third-party dispute resolution process shall be one that does all of the following:

(1) Complies with the minimum requirements of the Federal Trade Commission for informal dispute settlement procedures as set forth in Part 703 of Title 16 of the Code of Federal Regulations, as those regulations read on January 1, 1987.

(2) Renders decisions which are binding on the manufacturer if the buyer elects to accept the decision.

(3) Prescribes a reasonable time, not to exceed 30 days after the decision is accepted by the buyer, within which the manufacturer or its agent must fulfill the terms of its decisions.

(4) Provides arbitrators who are assigned to decide disputes with copies of, and instruction in, the provisions of the Federal Trade Commission's regulations in Part 703 of Title 16 of the Code of Federal Regulations as those regulations read on January 1, 1987, Division 2 (commencing with Section 2101) of the Commercial Code, and this chapter.

(5)Requires the manufacturer, when the process orders, under the terms of this chapter, either that the nonconforming motor vehicle be replaced if the buyer consents to this remedy or that restitution be made to the buyer, to replace the motor vehicle or make restitution in accordance with paragraph (2) of subdivision (d) of Section 1793.2.

(6)Provides, at the request of the arbitrator or a majority of the arbitration panel, for an inspection and written report on the condition of a nonconforming motor vehicle, at no cost to the buyer, by an automobile expert who is independent of the manufacturer.

(7)Takes into account, in rendering decisions, all legal and equitable factors, including, but not limited to, the written warranty, the rights and remedies conferred in regulations of the Federal Trade Commission contained in Part 703 of Title 16 of the Code of Federal Regulations as those regulations read on January 1, 1987, Division 2 (commencing with Section 2101) of the Commercial Code, this chapter, and any other equitable considerations appropriate in the circumstances. Nothing in this chapter requires that, to be certified as a qualified third-party dispute resolution process pursuant to this section, decisions of the process must consider or provide remedies in the form of awards of punitive damages or multiple damages, under subdivision (c) of Section 1794, or of attorneys' fees under subdivision (d) of Section 1794, or of consequential damages other than as provided in subdivisions (a) and(b)of Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(8)Requires that no arbitrator deciding a dispute may be a party to the dispute and that no other person, including an employee, agent, or dealer for the manufacturer, may be allowed to participate substantively in the merits of any dispute with the arbitrator unless the buyer is allowed toparticipate also. Nothing in this subdivision prohibits any member of anarbitration board from deciding a dispute.

(9)Obtains and maintains certification by the Department of Consumer Affairs pursuant to Chapter 9 (commencing with Section 472) of Division 1 of the Business and Professions Code. (e)For the purposes of subdivision (d) of Section 1793.2 and this section, the following terms have the following meanings:

(1)"Nonconformity" means a nonconformity which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.

(2)"New motor vehicle" means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. "New motor vehicle" also means a new motor vehicle with a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to which not more than five motor vehicles are registered in this state. "New motor vehicle" includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a "demonstrator" or other motor vehicle sold with a manufacturer's new car warranty but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways. A demonstrator is a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model and type.

(3)"Motor home" means a vehicular unit built on, or permanently attached to, a self-propelled motor vehicle chassis, chassis cab, or van, which becomes an integral part of the completed vehicle, designed for human habitation for recreational or emergency occupancy. (f)

(1) Except as provided in paragraph (2), no person shall sell, either at wholesale or retail, lease, or transfer a motor vehicle transferred by a buyer or lessee to a manufacturer pursuant to paragraph (2) of subdivision (d) of Section 1793.2 or a similar statute of any other state, unless thenature of the nonconformity experienced by the original buyer or lessee is clearly and conspicuously disclosed to the prospective buyer, lessee, or transferee, the nonconformity is corrected, and the manufacturer warrants to the new buyer, lessee, or transferee in writing for a period of one year that the motor vehicle is free of that nonconformity.

(2) Except for the requirement that the nature of the nonconformity be disclosed to the transferee, paragraph (1) does not apply to the transfer of a motor vehicle to an educational institution if the purpose of the transfer is to make the motor vehicle available for use in automotive repair courses. [EFFECTIVE 1/1/2001. Amended September 26, 2000 (Bill Number: SB 1718) (Chapter 679).] [Previously Amended September 21, 1999 (Bill Number: AB 1290) (Chapter 448).] [Previously Amended July 12, 1999 (Bill Number: SB 966) (Chapter 83).]

1794.

(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

(b) The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following:

(1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.

(2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.

(c) If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty.

(d) If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.

(e) (1) Except as otherwise provided in this subdivision, if the buyer establishes a violation of paragraph (2) of subdivision (d) of Section 1793.2, the buyer shall recover damages and reasonable attorney's fees and costs, and may recover a civil penalty of up to two times the amount of damages.

(2) If the manufacturer maintains a qualified third-party dispute resolution process which substantially complies with Section 1793.22, the manufacturer shall not be liable for any civil penalty pursuant to this subdivision.

(3) After the occurrence of the events giving rise to the presumption established in subdivision (b) of Section 1793.22, the buyer may serve upon the manufacturer a written notice requesting that the manufacturer comply with paragraph (2) of subdivision (d) of Section 1793.2. If the buyer fails to serve the notice, the manufacturer shall not be liable for a civil penalty pursuant to this subdivision.

(4) If the buyer serves the notice described in paragraph (3) and the manufacturer complies with paragraph (2) of subdivision (d) of Section 1793.2 within 30 days of the service of that notice, the manufacturer shall not be liable for a civil penalty pursuant to this subdivision.

(5) If the buyer recovers a civil penalty under subdivision (c), the buyer may not also recover a civil penalty under this subdivision for the same violation.

COLORADO STATE LEMON LAWS

2008-12-13T03:56:00.002-08:00

COLORADO STATE LEMON LAWS

Colorado Lemon Law
Colorado Revised Statutes งง42-10-101 to 107

42-10-101 Definitions. As used in this article, unless the context otherwise requires:

(1) "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle normally used for personal, family, or household purposes, any person to whom such motor vehicle is transferred for the same purposes during the duration of a manufacturer's express warranty for such motor vehicle, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty.

(2) "Motor vehicle" means a self-propelled private passenger vehicle, including pickup trucks and vans, designed primarily for travel on the public highways and used to carry not more than ten persons, which is sold to a consumer in this state; except that the term does not include motor homes as defined in section 42-1-102 (57) or vehicles designed to travel on three or fewer wheels in contact with the ground.

(3) "Warranty" means the written warranty, so labeled, of the manufacturer of a new motor vehicle, including any terms or conditions precedent to the enforcement of obligations under that warranty.

42-10-102 Repairs to conform vehicle to warranty

If a motor vehicle does not conform to a warranty and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of such warranty or during a period of one year following the date of the original delivery of the motor vehicle to a consumer, whichever is the earlier date, the manufacturer, its agent, or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such warranty, notwithstanding the fact that such repairs are made after the expiration of such term or such one-year period.

42-10-103 Failure to conform vehicle to warranty - replacement or return of vehicle

(1) If the manufacturer, its agent, or its authorized dealer is unable to conform the motor vehicle to the warranty by repairing or correcting the defect or condition which substantially impairs the use and market value of such motor vehicle after a reasonable number of attempts, the manufacturer shall, at its option, replace the motor vehicle with a comparable motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including the sales tax, license fees, and registration fees and any similar governmental charges, less a reasonable allowance for the consumer's use of the motor vehicle. Refunds shall be made to the consumer and lienholder, if any, as their interests may appear. A reasonable allowance for use shall be that amount directly attributable to use by the consumer and any previous consumer prior to the consumer's first written report of the nonconformity to the manufacturer, agent, or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

(2) (a) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the warranty if:

(I) The same nonconformity has been subject to repair four or more times by the manufacturer, its agent, or its authorized dealer within the warranty term or during a period of one year following the date of the original delivery of the motor vehicle to the consumer, whichever is the earlier date, but such nonconformity continues to exist; or

(II) The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more business days of the repairer during the term specified in subparagraph (I) of this paragraph (a) or during the period specified in said subparagraph (I), whichever is the earlier date.

(b) For the purposes of this subsection (2), the term of a warranty, the one-year period, and the thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, or fire, flood, or other natural disaster.

(c) In no event shall a presumption under paragraph (a) of this subsection (2) apply against a manufacturer unless the manufacturer has received prior written notification by certified mail from or on behalf of the consumer and has been provided an opportunity to cure the defect alleged. Such defect shall count as one nonconformity subject to repair under subparagraph (I) of paragraph (a) of this subsection (2).

(d) Every authorized motor vehicle dealer shall include a form, containing the manufacturer's name and business address, with each motor vehicle owner's manual on which the consumer may give written notification of any defect, as such notification is required by paragraph (c) of this subsection (2), and the form shall clearly and conspicuously disclose that written notification by certified mail of the nonconformity is required, in order for the consumer to obtain remedies under this article.

(3) The court shall award reasonable attorney fees to the prevailing side in any action brought to enforce the provisions of this article.

42-10-104 Affirmative defenses

(1) It shall be an affirmative defense to any claim under this article that:

(a) An alleged nonconformity does not substantially impair the use and market value of a motor vehicle; or

(b) A nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of the motor vehicle by a consumer.

42-10-105 Limitations on other rights and remedies

Nothing in this article shall in any way limit the rights or remedies which are otherwise available to a consumer under any other state law or any federal law. Nothing in this article shall affect the other rights and duties between the consumer and a seller, lessor, or lienholder of a motor vehicle or the rights between any of them. Nothing in this article shall be construed as imposing a liability on any authorized dealer with respect to a manufacturer or creating a cause of action by a manufacturer against its authorized dealer; except that failure by an authorized dealer to properly prepare a motor vehicle for sale, to properly install options on a motor vehicle, or to properly make repairs on a motor vehicle, when such preparation, installation, or repairs would have prevented or cured a nonconformity, shall be actionable by the manufacturer.

42-10-106 Applicability of federal procedures

If a manufacturer has established or participates in an informal dispute settlement procedure which substantially complies with the provisions of part 703 of title 16 of the code of federal regulations, as from time to time amended, the provisions of section 42-10-103 (1) concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.

42-10-107 Statute of limitations

Any action brought to enforce the provisions of this article shall be commenced within six months following the expiration date of any warranty term or within one year following the date of the original delivery of a motor vehicle to a consumer, whichever is the earlier date; except that the statute of limitations shall be tolled during the period the consumer has submitted to arbitration under section 42-10-106.

CONNECTICUT STATE LEMON LAWS

2008-12-13T03:56:00.001-08:00

CONNECTICUT STATE LEMON LAWS

Connecticut Lemon Law
Connecticut General Statutes Annotated ง 42-179 to 180

42-179 New motor vehicle warranties.

Leased vehicles. Resales. Transfers. Manufacturer buybacks.

(a) As used in this chapter:

(1) "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle, a lessee of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle, and any person entitled by the terms of such warranty to enforce the obligations of the warranty; and

(2) "motor vehicle" means a passenger motor vehicle or a passenger and commercial motor vehicle, as defined in section 14-1, which is sold or leased in this state.

(b) If a new motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer during the period of two years following the date of original delivery of the motor vehicle to a consumer or during the period of the first eighteen thousand miles of operation, whichever period ends first, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such express warranties, notwithstanding the fact that such repairs are made after the expiration of the applicable period.

(c) No consumer shall be required to notify the manufacturer of a claim under this section and sections 42-181 to 42-184, inclusive, unless the manufacturer has clearly and conspicuously disclosed to the consumer, in the warranty or owner's manual, that written notification of the nonconformity is required before the consumer may be eligible for a refund or replacement of the vehicle. The manufacturer shall include with the warranty or owner's manual the name and address to which the consumer shall send such written notification.

(d) If the manufacturer, or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle acceptable to the consumer, or accept return of the vehicle from the consumer and refund to the consumer, lessor and lien holder, if any, as their interests may appear, the following:

(1) The full contract price, including but not limited to, charges for undercoating, dealer preparation and transportation and installed options,

(2) all collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges,

(3) all finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is out of service by reason of repair, and

(4) all incidental damages as defined in section 42a-2-715, less a reasonable allowance for the consumer's use of the vehicle. No authorized dealer shall be held liable by the manufacturer for any refunds or vehicle replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturers' instructions. Refunds or replacements shall be made to the consumer, lessor and lien holder if any, as their interests may appear. A reasonable allowance for use shall be that amount obtained by multiplying the total contract price of the vehicle by a fraction having as its denominator one hundred thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer's acceptance of its return. It shall be an affirmative defense to any claim under this section

(1) that an alleged nonconformity does not substantially impair such use, safety or value or

(2) that a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by a consumer.

(e) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if

(1) the same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the period of two years following the date of original delivery of the motor vehicle to a consumer or during the period of the first eighteen thousand miles of operation, whichever period ends first, but such nonconformity continues to exist or

(2) the vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the applicable period, determined pursuant to subdivision (1) of this subsection. Such two-year period and such thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster. No claim shall be made under this section unless at least one attempt to repair a nonconformity has been made by the manufacturer or its agent or an authorized dealer or unless such manufacturer, its agent or an authorized dealer has refused to attempt to repair such nonconformity.

(f) If a motor vehicle has a nonconformity which results in a condition which is likely to cause death or serious bodily injury if the vehicle is driven, it shall be presumed that a reasonable number of attempts have been undertaken to conform such vehicle to the applicable express warranties if the nonconformity has been subject to repair at least twice by the manufacturer or its agents or authorized dealers within the express warranty term or during the period of one year following the date of the original delivery of the motor vehicle to a consumer, whichever period ends first, but such nonconformity continues to exist. The term of an express warranty and such one-year period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike or fire, flood or other natural disaster.

(g)

(1) No motor vehicle which is returned to any person pursuant to any provision of this chapter or in settlement of any dispute related to any complaint made under the provisions of this chapter and which requires replacement or refund shall be resold, transferred or leased in the state without clear and conspicuous written disclosure of the fact that such motor vehicle was so returned prior to resale or lease. Such disclosure shall be affixed to the motor vehicle and shall be included in any contract for sale or lease. The Commissioner of Motor Vehicles shall, by regulations adopted in accordance with the provisions of chapter 54, prescribe the form and content of any such disclosure statement and establish provisions by which the commissioner may remove such written disclosure after such time as the commissioner may determine that such motor vehicle is no longer defective.

(2) If a manufacturer accepts the return of a motor vehicle or compensates any person who accepts the return of a motor vehicle pursuant to subdivision (1) of this subsection such manufacturer shall stamp the words "MANUFACTURER BUYBACK" clearly and conspicuously on the face of the original title in letters at least one-quarter inch high and, within ten days of receipt of the title, shall submit a copy of the stamped title to the Department of Motor Vehicles. The Department of Motor Vehicles shall maintain a listing of such buyback vehicles and in the case of any request for a title for a buyback vehicle, shall cause the words "MANUFACTURER BUYBACK" to appear clearly and conspicuously on the face of the new title in letters which are at least one-quarter inch high. Any person who applies for a title shall disclose to the department the fact that such vehicle was returned as set forth in this subsection.

(3) If a manufacturer accepts the return of a motor vehicle from a consumer due to a nonconformity or defect, in exchange for a refund or a replacement vehicle, whether as a result of an administrative or judicial determination, an arbitration proceeding or a voluntary settlement, the manufacturer shall notify the Department of Motor Vehicles and shall provide the department with all relevant information, including the year, make, model, vehicle identification number and prior title number of the vehicle. The Commissioner of Motor Vehicles shall adopt regulations in accordance with chapter 54 specifying the format and time period in which such information shall be provided and the nature of any additional information which the commissioner may require.

(4) The provisions of this subsection shall apply to motor vehicles originally returned in another state from a consumer due to a nonconformity or defect in exchange for a refund or replacement vehicle and which a lessor or transferor with actual knowledge subsequently sells, transfers or leases in this state.

(h) All express and implied warranties arising from the sale of a new motor vehicle shall be subject to the provisions of part 3 of article 2 of title 42a.

(i) Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.

(j) If a manufacturer has established an informal dispute settlement procedure which is certified by the Attorney General as complying in all respects with the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1, 1982, and with the provisions of subsection (b) of section 42-182, the provisions of subsection (d) of this section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.

42-179a Copies of paperwork or invoices.

A dealer or authorized agent of a manufacturer shall, upon the request of a consumer, provide such consumer with copies of any paperwork or invoices related to repair work performed on such consumer's automobile in accordance with the provisions of subsection (b) of section 42-179. Any person who violates the provisions of this section shall be guilty of an infraction.

42-179b Dealers and lessors to deliver information.

Each motor vehicle dealer, as defined in subsection (11) of section 14-1, and each person engaged in the business of leasing new motor vehicles shall, at the time of sale or execution of the lease of any new motor vehicle, deliver to the consumer, as defined in subdivision (1) of subsection (a) of section 42-179, of such vehicle written information, in a form approved by the Commissioner of Consumer Protection, which explains the new automobile warranty and dispute settlement program established pursuant to this chapter.

42-180 Costs and attorney's fees in breach of warranty actions.

In any action by a consumer against the manufacturer of a motor vehicle, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale or lease of such motor vehicle, the court, in its discretion, may award to the plaintiff his costs and reasonable attorney's fees or, if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorney's fees to the defendant.

DELAWARE STATE LEMON LAWS

2008-12-13T03:55:00.000-08:00

DELAWARE STATE LEMON LAWS

Delaware Lemon Law
Delaware Code Annotated, Title 6, งง 5001-5009

ง 5001. Definitions.

As used in this chapter:
(1) "Consumer" means the purchaser, other than for purposes of resale, of an automobile; a person to whom an automobile is transferred during the duration of an express warranty applicable to the automobile; or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.
(2) "Dealer" means a person actively engaged in the business of buying, selling or exchanging automobiles at retail and who has an established place of business.
(3) "Manufacturer" means a person engaged in the business of manufacturing, assembling or distributing automobiles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least 10 new automobiles.
(4) "Manufacturer's express warranty" or "warranty" means the written warranty of the manufacturer of a new automobile of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.
(5) "Automobile" means any passenger motor vehicle, except motorcycles, which is leased or bought in Delaware or registered by the Division of Motor Vehicles in the Department of Public Safety except the living facilities of motor homes.
(6) "Nonconformity" means a defect or condition which substantially impairs the use, value or safety of an automobile.
(7) "Lien" means a security interest in an automobile.
(8) "Lienholder" means a person with a security interest in an automobile pursuant to a lien.

ง 5002. Duty to repair nonconforming automobiles.

If a new automobile does not conform to the manufacturer's express warranty, and the consumer reports the nonconformity to the manufacturer or its agent or dealer during the term of the warranty or during the period of 1 year following the date of original delivery of an automobile to the consumer, whichever is earlier, the manufacturer shall make, or arrange with its dealer or agent to make, within a reasonable period of time, all repairs necessary to conform the new automobile to the warranty, notwithstanding that the repairs or corrections are made after the expiration of the term of the warranty or the 1-year period.

ง 5003. Remedies upon failure to repair.

(a) If the manufacturer, its agent or its authorized dealer does not conform the automobile to any applicable express warranty by repairing or correcting any nonconformity after a reasonable number of attempts, the manufacturer shall either replace the automobile with a comparable new automobile acceptable to the consumer or repurchase the automobile from the consumer and refund to the consumer the full purchase, including all credits and allowances for any trade-in vehicle; provided, however, that the consumer shall have the unqualified right to decline a replacement automobile and to demand instead a repurchase.
(b) In instances in which an automobile is replaced by a manufacturer under this section, said manufacturer shall accept return of the automobile and reimburse the consumer for any incidental costs, including dealer preparation fees, fees for transfer of registration, sales taxes or other charges or fees incurred by the consumer as a result of such replacement. In instances in which an automobile which was financed by the manufacturer or its subsidiary or agent is replaced under this section, said manufacturer, subsidiary or agent shall not require the consumer to enter into any refinancing agreement for a replacement automobile which would create any financial obligations upon such consumer beyond those created by the original financing agreement.
(c) In instances in which a refund is tendered under this section, the manufacturer shall accept return of the automobile from the consumer and shall reimburse the consumer for related purchase costs, including sales taxes, registration fees and dealer preparation fees, less:

(1) A reasonable allowance for the consumer's use of the automobile, not to exceed the full purchase price of the automobile multiplied by a fraction which consists of the number of miles driven before the consumer first reported the nonconformity to the manufacturer, its agent or dealer divided by 100,000 miles; and
(2) A reasonable allowance for damage not attributable to normal wear and tear, but not to include damage resulting from a nonconformity.

(d) Refunds shall be made to the consumer, and lienholder, if any, as their interests may appear.
(e) No authorized dealer shall be held liable by the manufacturer for any refunds or automobile replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturer's instructions

ง 5004. Presumptions.

(a) It shall be presumed that a reasonable number of attempts have been undertaken to conform a new automobile to the manufacturer's express warranty if, within the warranty term or during the period of 1 year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date:

(1) Substantially the same nonconformity has been subject to repair or correction 4 or more times by the manufacturer, its agents or its dealers and the nonconformity continues to exist; or
(2) The automobile is out of service by reason of repair or correction of a nonconformity by the manufacturer, its agents or its dealers for a cumulative total of more than 30 calendar days since the original delivery of the motor vehicle to the consumer. This 30-day limit shall commence with the first day on which the consumer presents the automobile to the manufacturer, its agent or dealer for service of the nonconformity and a written document describing the nonconformity is prepared by the manufacturer, its agent or dealer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer, its agents or its dealers, including war, invasion, strike, fire, flood or other natural disaster.

(b) The presumption provided in this section shall not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to repair or correct the nonconformity; provided, however, that if the manufacturer does not directly attempt or arrange with its dealer or agent to repair or correct the nonconformity, the manufacturer may not defend a claim by a consumer under this chapter on the ground that the agent or dealer failed to properly repair or correct the nonconformity or that the repairs or corrections made by the agent or dealer caused or contributed to the nonconformity.

ง 5005. Costs and attorney's fees in breach of warranty actions.

In any court action brought under this chapter by a consumer against the manufacturer of an automobile, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express warranty made in connection with the sale of such automobile, the court, in its discretion, may award to the plaintiff his costs and reasonable attorney's fees or, if the court determines that the action is brought in bad faith or is frivolous in nature, may award reasonable attorney's fees to the defendant.

ง 5006. Affirmative defense to claim.

It shall be an affirmative defense to a claim under this chapter that the alleged nonconformity does not substantially impair the use, value or safety of the new automobile or that the nonconformity is the result of abuse or neglect or of unauthorized modifications or alterations of the new automobile by anyone other than the manufacturer, its agent or dealer.

ง 5007. Informal dispute settlement procedure.

(a) If a manufacturer has established an informal settlement procedure that has a certificate of approval by the Division of Consumer Protection, the remedies provided by this chapter shall not be available to any consumer who has not first resorted to such procedure. In the event a manufacturer's informal dispute settlement procedure does not have a certificate of approval from the Division of Consumer Protection, a consumer may immediately and directly seek the remedies provided by this chapter.
(b) The Division of Consumer Protection shall annually evaluate the operation of informal dispute settlement procedures established by manufacturers and shall issue an annual certificate of approval to those manufacturers whose procedures comply with Title 16, Code of Federal Regulations, Part 703 and with subsections (c), (d) and (e) of this section. The Division of Consumer Protection shall suspend the certification of, or decertify, any informal dispute settlement which no longer complies with said provisions.
(c) Any manufacturer who has established an informal settlement procedure shall file with the Division of Consumer Protection a copy of each decision of the informal dispute settlement procedure within 30 days after the decision is rendered. (d) In order to obtain the certification of the Division of Consumer Protection, a manufacturer's informal dispute settlement procedure shall not convene any informal dispute settlement hearing or meeting outside the State and shall refrain from any practices which:

(1) Delay a decision in any dispute beyond 65 days after the date on which the consumer initially resorts to the informal dispute settlement procedure by written notification that a dispute exists; or
(2) Delay performance of remedies awarded in a settlement beyond 30 days after receipt of notice of the consumer's acceptance of the decision; provided, however, that such time limits shall not include periods of time when the consumer or the consumer's car is unavailable for the remedies specified in the settlement; or
(3) Require the consumer to make the automobile available more than once for inspection by a manufacturer's representative or more than once for repair of the same nonconformity; or
(4) Fail to consider in decisions any remedies provided by this chapter, such remedies to include:

a. Repair, replacement and refund;
b. Reimbursement for related purchase costs; or

(5) Require the consumer to take any action or assume any obligation not specifically authorized under the provisions of Title 16, Code of Federal Regulations, Part 703.

(e) A manufacturer desiring annual certification of an informal dispute settlement procedure shall make application to the Division of Consumer Protection on forms developed by, and shall provide such information as required by, the Division of Consumer Protection.

ง 5008. Remedies cumulative.

Nothing in this chapter shall in any way limit the rights or remedies available to a consumer under Subtitle I of this title.

ง 5009. Enforcement.

In addition to any remedies the consumer may have at law or in equity, a violation of this chapter shall be an unlawful practice as defined in ง 2513 of this title. The Division of Consumer Protection shall promulgate rules and regulations in order to implement the purposes of this chapter.

DISTRICT OF COLUMBIA STATE LEMON LAWS

2008-12-13T03:54:00.000-08:00

DISTRICT OF COLUMBIA STATE LEMON LAWS

District of Columbia Lemon Law
D.C. Code, 40-1301 to 40-1310

40-1301 Definitions

For the purposes of this chapter, the term:
(1) "Board" means the Board of Consumer Claims Arbitration for the District of Columbia established by ง 40-1303.
(2) "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle; any person to whom the motor vehicle is leased or otherwise transferred during the duration of a warranty applicable to the motor vehicle; and any other person entitled to enforce the obligations of the warranty. For the purposes of ง 40-1303, the term "consumer" means any natural person who does or would purchase, lease, or receive consumer goods or services. The term "consumer" includes any natural person who purchases insurance coverage in the District of Columbia.
(3) "Council" means the Council of the District of Columbia.
(4) "Court" means the Superior Court of the District of Columbia.
(5) "District" means the District of Columbia.
(6) "Known" means, for the purposes of ง 40-1305, that a dealer or the dealer's agent or employee has obtained facts or information about the condition of a motor vehicle which would lead a reasonable person in similar circumstances to believe that the motor vehicle contained 1 or more material mechanical defects. The term "known" encompasses knowledge obtained through an inspection, from a previous owner, from the salesperson at an auction, or through other means.
(7) "Material mechanical defect" means any defect, failure, or malfunction of the mechanical system of a motor vehicle, including, but not limited to, the engine, transmission and drive shaft, differential, cooling system, electrical system, fuel system, or accessories, which significantly impairs the operation, safety, performance, or value of the motor vehicle.
(8) "Mayor" means the Mayor of the District of Columbia.
(9) "Motor vehicle" means a motor vehicle which is manufactured for sale, offered for sale, sold, or registered in the District and which is designed for the primary purpose of transporting a driver and 1 or more passengers on streets, roads, or highways. The term "motor vehicle" shall not include buses sold for public transportation, motorcycles, motor homes, or motorized recreational vehicles.
(10) "New motor vehicle" means a motor vehicle which is in the period of the first 18,000 miles of operation or the first 2 years after the date of delivery to the original purchaser, whichever is earlier.
(11) "Safety-related defect" means an impairment which reduces the operator's ability to control the motor vehicle in normal operation or which creates a risk of fire, explosion, or other life-threatening malfunction.
(12) "Significantly impair" means to render the motor vehicle unreliable or unsafe for normal operation or to reduce its resale value below the average resale value for comparable motor vehicles.
(13) "Used motor vehicle" means a motor vehicle which is offered for sale in the District and which is not within the period of the first 18,000 miles of operation or the first 2 years after the date of delivery to the original purchaser, whichever is earlier; but it does not mean a motor vehicle sold only for scrap or parts.
(14) "Warranty" means the written or implied warranty of the manufacturer of a motor vehicle.

40-1302 Consumer's remedy for defective vehicles

(a) If a new motor vehicle does not conform to all warranties during the first 18,000 miles of operation or during the period of 2 years following the date of delivery of the motor vehicle to the original purchaser, whichever is the earlier date, the consumer shall during that period report the nonconformity, defect, or condition to the manufacturer, its agent, or its authorized dealer. If the notification is received by the manufacturer's agent or authorized dealer, the agent or dealer shall within 7 days forward written notice thereof to the manufacturer by certified mail, return receipt requested. The manufacturer, its agent, or its authorized dealer shall correct the of the first 18,000-mile period of operation or the 2-year period.
(b) If, after a reasonable number of attempts, the manufacturer, its agent, or authorized dealer is unable to repair or correct any nonconformity, defect, or condition which results in significant impairment of the motor vehicle, the manufacturer, at the option of the consumer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all sales tax, license fees, registration fees, and any similar governmental charges. In calculating a refund, the manufacturer may deduct from the consumer's full purchase price a reasonable allowance not to exceed 10 cents per mile for the consumer's use of the motor vehicle in excess of the first 12,000 miles of operation, and a reasonable allowance for any damage not attributable to normal wear or to the nonconformity, defect, or condition which significantly impaired the motor vehicle. Refunds shall be made to the consumer, and the lienholder, if any, as their interests may appear on the records of ownership kept by the Department of Public Works.
(c) Each of the following circumstances shall be an affirmative defense to any claim under this section:
(1) The nonconformity, defect, or condition does not significantly impair the vehicle.
(2) The nonconformity, defect, or condition is the result of abuse, neglect, or unauthorized modifications or alterations of the motor vehicle.
(d) It shall be presumed that a reasonable number of attempts have been made to conform a motor vehicle to the warranties, if:
(1) The same nonconformity, defect, or condition, if it is not safety- related, has been subject to repair 4 or more times by the manufacturer, its agent, or authorized dealer after notification by the consumer within the first 18,000 miles of operation or during the period of 2 years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, but the nonconformity, defect, or condition continues to exist;
(2) The same nonconformity, defect, or condition, if it is safety-related, has been subject to repair 1 or more times by the manufacturer, its agents, or authorized dealers after notification by the consumer within the first 18,000 miles of operation or during the period of 2 years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, but the nonconformity, defect, or condition continues to exist; or
(3) The motor vehicle is out of service by reason of repair of any nonconformities, defects, or conditions which significantly impair the vehicle, on a cumulative total of 30 days or more during either period, whichever is the earlier date.
(e) The 30-day out-of-service period shall be extended by any time during which repair services are not available to the consumer because of a war, invasion, strike, fire, flood, or other natural disaster.
(f) The consumer, in order to seek the refund or replacement provided by this section, shall first submit a claim to the Board of Consumer Claims Arbitration established pursuant to ง 40-1303. If the Board rejects the case for arbitration, or if the claim is arbitrated and the consumer rejects the arbitration decision, the consumer may then bring an action in court to seek the remedies provided by this section.
(g)(1) If a motor vehicle is returned to a manufacturer, its agent, or authorized dealer pursuant to this section, the manufacturer, its agent, or authorized dealer shall notify the Department of Public Works that the motor vehicle was returned.
(2) The Department of Public Works shall note the fact that the motor vehicle was returned pursuant to this chapter on any certificate of title issued for the motor vehicle.
(3) A motor vehicle dealer shall state the fact that the motor vehicle was returned pursuant to this chapter in any sales contract for the motor vehicle prior to the signing of the contract by a prospective purchaser.

40-1303 Arbitration

(a) There is established in the Department of Consumer and Regulatory Affairs a Board of Consumer Claims Arbitration for the District of Columbia. The Board shall consist of 7 members who shall be appointed by the Mayor.
(b) The members shall be at least 18 years of age and residents of the District.
(c) Two members shall be attorneys admitted to the practice of law in the District, 1 of whom shall be designated by the Mayor as chairperson of the Board. Two members shall have training and experience in arbitration and mediation. One member shall be the Director of the Department of Consumer and Regulatory Affairs or his or her designee. One member shall have experience or training in representing the interests of consumers. One member shall have experience or training in the manufacture or wholesale or retail sales of consumer goods.
(d) The Mayor shall appoint the initial Board members within 60 days of March 14, 1985. Of the members first appointed, the chairperson and 1 other member shall be appointed for terms of 3 years; 2 members shall be appointed for terms of 2 years; 1 member shall be appointed for a term of 2 years; and 1 member shall be appointed for a term of 1 year. Subsequent appointments shall be for terms of 3 years. This subsection shall not apply to the representative of the Department of Consumer and Regulatory Affairs.
(e) Members of the Board shall be compensated pursuant to ง 1-612.8.
(f) The Mayor shall issue, and may amend from time to time, rules and regulations to implement the provisions of this section and may establish reasonable fees for the filing of complaints.
(g) The Board, in accordance with the rules and regulations issued pursuant to subsection (f) of this section, shall provide arbitration for claims filed by consumers against manufacturers, their agents, or dealers pursuant to งง 40-1302 and 40-1305; for claims voluntarily filed by consumers against the provider of any consumer goods or services, who agrees to arbitration, pursuant to rules and regulations issued by the Mayor; and for claims filed pursuant to ง 35-2105 by parties agreeing to arbitration pursuant to rules and regulations issued by the Mayor.
(h) Consumers may submit claims to the Board by completing forms which shall be approved by the Mayor.
(i) Upon receipt of a written claim filed by a consumer, the Board shall within 5 business days determine whether the claim qualifies for arbitration pursuant to this chapter and notify the opposing party.
(j) The Board shall develop and maintain a roster of persons who are residents of the District, at least 18 years of age, and experienced in arbitration techniques who may be employed to serve as arbitrators for specific cases.
(k) The Board shall assign cases for arbitration according to the following provisions:
(1) A case may be assigned to a single arbitrator if the Board first informs all parties to the case of the identity and background of the arbitrator and obtains their consent. When a case is assigned to a single arbitrator, the arbitrator must be an attorney-member of the Board or another attorney admitted to the practice of law in the District and chosen from the roster of arbitrators maintained by the Board.
(2) All cases not assigned to single arbitrators shall be assigned to a panel of 3 arbitrators, 1 of whom must be a member of the Board and 1 of whom must be an attorney admitted to the practice of law in the District. Participation on the panel by an attorney-member of the Board shall satisfy both requirements. The Board shall inform all parties to the case of the identity and background of the arbitrators tentatively selected for the panel and shall obtain the consent of both parties to the choice of arbitrators. The decision of the panel shall be by majority vote.
(l) The Board is authorized to reject for arbitration consumer claims which are determined by a majority of the Board to be frivolous, fraudulent, or beyond the legal authority of the Board.
(m) The Board shall promptly assign all cases accepted for arbitration to an arbitrator or arbitrators who shall appoint a time and place for a hearing and notify the parties personally or by registered mail not less than 5 days prior to the hearing. Hearings shall be public and shall be recorded electronically.
(n) At all arbitration hearings, the parties are entitled to present oral and written testimony, to present witnesses and evidence relevant to the controversy, to cross-examine witnesses, and to be represented by counsel.
(o) The Board may issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence. The Board or arbitrators designated by the Board shall have the power to administer oaths and affirmations and take acknowledgements.
(p) Upon application by any party to an arbitration proceeding, or upon its own motion, an arbitrator or arbitration panel may retain independent technical experts as needed to determine the facts in the case. The arbitrator or arbitration panel may assign the costs of the technical experts to 1 or both parties to the case.
(q)(1) The arbitrator or arbitration panel shall determine whether the defendant is liable to the claimant and, if so, shall award the claimant relief.
(2) The arbitrator or arbitration panel may award the claimant the relief provided by this chapter, any relief available under any other law, and reasonable attorneys' fees. The defendant may be assessed the costs of arbitration as part of any award rendered by the arbitrator or arbitration panel.
(3) Decisions of an arbitrator or arbitration panel shall be in writing and shall be entered by and in the name of the Board.
(4) Decisions shall be entered no later than 60 days from the date the Board accepts a case for arbitration.
(5) The decision shall state the relief granted, if any, and shall specify a time limit for compliance.
(6) The board shall promptly provide a copy of the decision to each party.
(r) The Board or any party to a case may petition the court to issue an order compelling compliance with a decision by the Board.
(s)(1) Any party to a case may, within 20 days after receipt of the Board's decision, petition the court to vacate the decision and grant a trial de novo.
(2) Upon receipt of a petition, the court shall first determine the validity of the arbitration proceeding and shall vacate an arbitration award upon a finding that:
(A) The award was procured by corruption, fraud, or other misconduct in violation of law;
(B) The arbitrator or arbitration panel exceeded its powers;
(C) The arbitrator or arbitration panel failed to conform to the rules and regulations issued pursuant to this chapter, and
the failure to conform prejudiced the rights of a party to the complaint; or
(D) The award is based on a numerical error or other error of fact which the Board has failed to correct.
(3) If the court determines the arbitration process was valid but grants the petition for a trial de novo on other grounds, the decision of the Board shall be admissible as evidence and shall be presumed correct.

40-1304 Disclosure of rights

(a) The manufacturer, its agent, or authorized dealer shall provide written notification to the prospective consumer of any motor vehicle to be sold or registered in the District of the rights provided to the consumer by this chapter.
(b) The Mayor shall issue rules and regulations prescribing the form and content of the notification required by this section.
(c) Any agreement entered into by a consumer for the purchase of a motor vehicle which waives, limits, or disclaims the rights set forth in this chapter shall be void. These rights shall inure to a subsequent transferee of the motor vehicle.

40-1305 Disclosure of damages or defects in used motor vehicles; violations; penalties

(a) No motor vehicle dealer may offer for sale any used motor vehicle without first providing:
(1) Written notice to the prospective consumer of any material mechanical defect in the motor vehicle and any damage sustained by the motor vehicle due to fire, water, collision, or other causes for which the cost of repairs exceeded $1,000, when the defect or damage was known to the dealer; and
(2) Written notice to the prospective consumer whether the dealer has conducted any inspection of the motor vehicle to determine known defects or damage.

(b) A motor vehicle dealer who fails to provide the notices required by this section or who provides false or misleading notices shall, upon conviction, be subject to the following penalties:
(1) A fine of not less than $300 or more than $1,000 for a first offense; and
(2) A fine of not less than $1,000 or more than $5,000, or suspension or revocation of the license issued pursuant to ง 300 of the Vehicles and Traffic Regulations (18 DCMR 300.1 et seq.), or both, for a second or subsequent offense.

(c) The purchaser of a used motor vehicle shall have a right of action against a used motor vehicle dealer for damages or injuries sustained as a result of the dealer's failure to comply with the requirements of this section. The purchaser, in order to seek the remedies provided by this section, shall first submit a claim to the Board. If the Board rejects the case for arbitration, or if the claim is arbitrated and the purchaser rejects the arbitration decision, the purchaser may then bring an action in court to seek the remedies provided by this section.

(d) Violations of this section shall be prosecuted in the name of the District of Columbia by the Corporation Counsel of the District of Columbia.

(e) Civil fines, penalties, and fees may be imposed as alternative sanctions for any infraction of the provisions of this chapter, or the rules or regulations issued under the authority of this chapter, pursuant to subchapters I through III of Chapter 27 of Title 6. Adjudication of any infraction shall be pursuant to subchapters I through III of Chapter 27 of Title 6.

40-1306 Listing of odometer readings

The Department of Public Works shall list the odometer readings at the time of registration or transfer of registration on the title of all motor vehicles registered in the District.

40-1307 Other rights or remedies; limitations on actions

(a) Nothing in this chapter shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.
(b) Any action brought pursuant to this chapter shall be commenced within 4 years of the date of original delivery of the motor vehicle to the consumer.

40-1308 Rules and regulations

The Mayor shall issue, and may amend from time to time, rules and regulations to implement the provisions of this chapter.

40-1309 Provision for alternative arbitration system.

If the arbitration system established pursuant to ง 40-1303 cannot consistently handle complaints during the 60-day period as required by ง 40- 1303(q)(4), and if the administration of the arbitration system results in expenditures beyond the sums budgeted annually for the program, the Mayor may certify an alternative arbitration system that complies with this chapter and rules issued to implement this chapter.

40-1310 Suspension of enforcement.

Notwithstanding any other provision of District law, enforcement of this chapter by the Department of Consumer and Regulatory Affairs is suspended until October 1, 2000.

FLORIDA STATE LEMON LAWS

2008-12-13T03:53:00.000-08:00

FLORIDA STATE LEMON LAWS

Florida Statutes Annotated, Chapter 681
681.10 Short title.

This chapter shall be known and may be cited as the "Motor Vehicle Warranty Enforcement Act."

681.101 Legislative intent.

The Legislature recognizes that a motor vehicle is a major consumer purchase and that a defective motor vehicle undoubtedly creates a hardship for the consumer. The Legislature further recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the Legislature that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time; however, it is not the intent of the Legislature that a consumer establish the presumption of a reasonable number of attempts as to each manufacturer that provides a warranty directly to the consumer. It is further the intent of the Legislature to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this chapter. However, nothing in this chapter shall in any way limit or expand the rights or remedies which are otherwise available to a consumer under any other law.

681.102 Definitions.

As used in this chapter, the term:

(1) "Authorized service agent" means any person, including a franchised motor vehicle dealer, who is authorized by the manufacturer to service motor vehicles. In the case of a recreational vehicle when there are two or more manufacturers, an authorized service agent for any individual manufacturer is any person, including a franchised motor vehicle dealer, who is authorized to service the items warranted by that manufacturer. The term does not include a rental car company authorized to repair rental vehicles.

(2) "Board" means the Florida New Motor Vehicle Arbitration Board.

(3) "Collateral charges" means those additional charges to a consumer wholly incurred as a result of the acquisition of the motor vehicle. For the purposes of this chapter, collateral charges include, but are not limited to, manufacturer-installed or agent-installed items or service charges, earned finance charges, sales taxes, and title charges.

(4) "Consumer" means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle primarily used for personal, family, or household purposes; any person to whom such motor vehicle is transferred for the same purposes during the duration of the Lemon Law rights period; and any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

(5) "Days" means calendar days.

(6) "Department" means the Department of Legal Affairs.

(7) "Division" means the Division of Consumer Services of the Department of Agriculture and Consumer Services.

(8) "Incidental charges" means those reasonable costs to the consumer which are directly caused by the nonconformity of the motor vehicle.

(9) "Lease price" means the aggregate of the capitalized cost, as defined in s. 521.003(2), and each of the following items to the extent not included in the capitalized cost:

(a) Lessor's earned rent charges through the date of repurchase.

(b) Collateral charges, if applicable.

(d) Any insurance or other costs expended by the lessor for the benefit of the lessee.

(e) An amount equal to state and local sales taxes, not otherwise included as collateral charges, paid by the lessor when the vehicle was initially purchased.

(10) "Lemon Law rights period" means the period ending 24 months after the date of the original delivery of a motor vehicle to a consumer.

(11) "Lessee" means any consumer who leases a motor vehicle for 1 year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to such motor vehicle or any consumer who leases a motor vehicle pursuant to a lease-purchase agreement.

(12) "Lessee cost" means the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle but excludes debt from any other transaction.

(13) "Lessor" means a person who holds title to a motor vehicle that is leased to a lessee under a written lease agreement or who holds the lessor's rights under such agreement.

(14) "Manufacturer" means any person, whether a resident or nonresident of this state, who manufactures or assembles motor vehicles, or who manufactures or assembles chassis for recreational vehicles, or who manufactures or installs on previously assembled truck or recreational vehicle chassis special bodies or equipment which, when installed, forms an integral part of the motor vehicle, a distributor as defined in s. 320.60(5), or an importer as defined in s. 320.60(7). A dealer as defined in s. 320.60(11)(a) shall not be deemed to be a manufacturer, distributor, or importer as provided in this section.

(15) "Motor vehicle" means a new vehicle, propelled by power other than muscular power, which is sold in this state to transport persons or property, and includes a recreational vehicle or a vehicle used as a demonstrator or leased vehicle if a manufacturer's warranty was issued as a condition of sale, or the lessee is responsible for repairs, but does not include vehicles run only upon tracks, off-road vehicles, trucks over 10,000 pounds gross vehicle weight, motorcycles, mopeds, or the living facilities of recreational vehicles. "Living facilities of recreational vehicles" are those portions designed, used, or maintained primarily as living quarters and include, but are not limited to, the flooring, plumbing system and fixtures, roof air conditioner, furnace, generator, electrical systems other than automotive circuits, the side entrance door, exterior compartments, and windows other than the windshield and driver and front passenger windows.

(16) "Nonconformity" means a defect or condition that substantially impairs the use, value, or safety of a motor vehicle, but does not include a defect or condition that results from an accident, abuse, neglect, modification, or alteration of the motor vehicle by persons other than the manufacturer or its authorized service agent.

(17) "Procedure" means an informal dispute-settlement procedure established by a manufacturer to mediate and arbitrate motor vehicle warranty disputes.

(18) "Program" means the mediation and arbitration pilot program for recreational vehicles established in this chapter.

(19) "Purchase price" means the cash price as defined in s. 520.31(1), inclusive of any allowance for a trade-in vehicle, but excludes debt from any other transaction. "Any allowance for a trade-in vehicle" means the net trade-in allowance as reflected in the purchase contract or lease agreement if acceptable to the consumer and manufacturer. If such amount is not acceptable to the consumer and manufacturer, then the trade-in allowance shall be an amount equal to 100 percent of the retail price of the trade-in vehicle as reflected in the NADA Official Used Car Guide (Southeastern Edition) or NADA Recreation Vehicle Appraisal Guide, whichever is applicable, in effect at the time of the trade-in. The manufacturer shall be responsible for providing the applicable NADA book.

(20) "Reasonable offset for use" means the number of miles attributable to a consumer up to the date of a settlement agreement or arbitration hearing, whichever occurs first, multiplied by the purchase price of the vehicle and divided by 120,000, except in the case of a recreational vehicle, in which event it shall be divided by 60,000.

(21) "Recreational vehicle" means a motor vehicle primarily designed to provide temporary living quarters for recreational, camping, or travel use, but does not include a van conversion.

(22) "Replacement motor vehicle" means a motor vehicle which is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of acquisition. "Reasonably equivalent to the motor vehicle to be replaced" means the manufacturer's suggested retail price of the replacement vehicle shall not exceed 105 percent of the manufacturer's suggested retail price of the motor vehicle to be replaced. In the case of a recreational vehicle, "reasonably equivalent to the motor vehicle to be replaced" means the retail price of the replacement vehicle shall not exceed 105 percent of the purchase price of the recreational vehicle to be replaced.

(23) "Warranty" means any written warranty issued by the manufacturer, or any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale of a motor vehicle to a consumer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

681.103 Duty of manufacturer to conform a motor vehicle to the warranty.

(1) If a motor vehicle does not conform to the warranty and the consumer first reports the problem to the manufacturer or its authorized service agent during the Lemon Law rights period, the manufacturer or its authorized service agent shall make such repairs as are necessary to conform the vehicle to the warranty, irrespective of whether such repairs are made after the expiration of the Lemon Law rights period. Such repairs shall be at no cost to the consumer if made during the term of the manufacturer's written express warranty. Nothing in this paragraph shall be construed to grant an extension of the Lemon Law rights period or to expand the time within which a consumer must file a claim under this chapter.

(2) Each manufacturer shall provide to its consumers conspicuous notice of the address and phone number for its zone, district, or regional office for this state in the written warranty or owner's manual. By January 1 of each year, each manufacturer shall forward to the Department of Legal Affairs a copy of the owner's manual and any written warranty for each make and model of motor vehicle that it sells in this state.

(3) At the time of acquisition, the manufacturer shall inform the consumer clearly and conspicuously in writing how and where to file a claim with a certified procedure if such procedure has been established by the manufacturer pursuant to s. 681.108. The manufacturer shall provide to the dealer and, at the time of acquisition, the dealer shall provide to the consumer a written statement that explains the consumer's rights under this chapter. The written statement shall be prepared by the Department of Legal Affairs and shall contain a toll-free number for the division that the consumer can contact to obtain information regarding the consumer's rights and obligations under this chapter or to commence arbitration. If the manufacturer obtains a signed receipt for timely delivery of sufficient quantities of this written statement to meet the dealer's vehicle sales requirements, it shall constitute prima facie evidence of compliance with this subsection by the manufacturer. The consumer's signed acknowledgment of receipt of materials required under this subsection shall constitute prima facie evidence of compliance by the manufacturer and dealer. The form of the acknowledgments shall be approved by the Department of Legal Affairs, and the dealer shall maintain the consumer's signed acknowledgment for 3 years.

(4) A manufacturer, through its authorized service agent, shall provide to the consumer, each time the consumer's motor vehicle is returned after being examined or repaired under the warranty, a fully itemized, legible statement or repair order indicating any test drive performed and the approximate length of the test drive, any diagnosis made, and all work performed on the motor vehicle including, but not limited to, a general description of the problem reported by the consumer or an identification of the defect or condition, parts and labor, the date and the odometer reading when the motor vehicle was submitted for examination or repair, and the date when the repair or examination was completed.

681.104 Nonconformity of motor vehicles.

(1)

(a) After three attempts have been made to repair the same nonconformity, the consumer shall give written notification, by registered or express mail to the manufacturer, of the need to repair the nonconformity to allow the manufacturer a final attempt to cure the nonconformity. The manufacturer shall have 10 days, commencing upon receipt of such notification, to respond and give the consumer the opportunity to have the motor vehicle repaired at a reasonably accessible repair facility within a reasonable time after the consumer's receipt of the response. The manufacturer shall have 10 days, except in the case of a recreational vehicle, in which event the manufacturer shall have 45 days, commencing upon the delivery of the motor vehicle to the designated repair facility by the consumer, to conform the motor vehicle to the warranty. If the manufacturer fails to respond to the consumer and give the consumer the opportunity to have the motor vehicle repaired at a reasonably accessible repair facility or perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply.

(b) If the motor vehicle is out of service by reason of repair of one or more nonconformities by the manufacturer or its authorized service agent for a cumulative total of 15 or more days, exclusive of downtime for routine maintenance prescribed by the owner's manual, the consumer shall so notify the manufacturer in writing by registered or express mail to give the manufacturer or its authorized service agent an opportunity to inspect or repair the vehicle.

(2)

(a) If the manufacturer, or its authorized service agent, cannot conform the motor vehicle to the warranty by repairing or correcting any nonconformity after a reasonable number of attempts, the manufacturer, within 40 days, shall repurchase the motor vehicle and refund the full purchase price to the consumer, less a reasonable offset for use, or, in consideration of its receipt of payment from the consumer of a reasonable offset for use, replace the motor vehicle with a replacement motor vehicle acceptable to the consumer. The refund or replacement must include all reasonably incurred collateral and incidental charges. However, the consumer has an unconditional right to choose a refund rather than a replacement motor vehicle. Upon receipt of such refund or replacement, the consumer, lien holder, or lessor shall furnish to the manufacturer clear title to and possession of the motor vehicle.

(b) Refunds shall be made to the consumer and lien holder of record, if any, as their interests may appear. If applicable, refunds shall be made to the lessor and lessee as follows: The lessee shall receive the lessee cost and the lessor shall receive the lease price less the lessee cost. A penalty for early lease termination may not be assessed against a lessee who receives a replacement motor vehicle or refund under this chapter. The Department of Revenue shall refund to the manufacturer any sales tax which the manufacturer refunded to the consumer, lien holder, or lessor under this section, if the manufacturer provides to the department a written request for a refund and evidence that the sales tax was paid when the vehicle was purchased and that the manufacturer refunded the sales tax to the consumer, lien holder, or lessor.

(3) It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the warranty if, during the Lemon Law rights period, either:

(a) The same nonconformity has been subject to repair at least three times by the manufacturer or its authorized service agent, plus a final attempt by the manufacturer to repair the motor vehicle if undertaken as provided for in paragraph (1)(a), and such nonconformity continues to exist; or

(b) The motor vehicle has been out of service by reason of repair of one or more nonconformities by the manufacturer, or its authorized service agent, for a cumulative total of 30 or more days, 60 or more days in the case of a recreational vehicle, exclusive of downtime for routine maintenance prescribed by the owner's manual. The manufacturer or its authorized service agent must have had at least one opportunity to inspect or repair the vehicle following receipt of the notification as provided in paragraph (1)(b). The 30-day period, or 60-day period in the case of a recreational vehicle, may be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, fire, flood, or natural disaster.

(4) It is an affirmative defense to any claim under this chapter that:

(a) The alleged nonconformity does not substantially impair the use, value, or safety of the motor vehicle;

(b) The nonconformity is the result of an accident, abuse, neglect, or unauthorized modifications or alterations of the motor vehicle by persons other than the manufacturer or its authorized service agent; or

Any other affirmative defense allowed by law may be raised against the claim.

681.106 Bad faith claims.

Any claim by a consumer which is found by the court to have been filed in bad faith or solely for the purpose of harassment, or in complete absence of a justiciable issue of either law or fact raised by the consumer, shall result in the consumer being liable for all costs and reasonable attorney's fees incurred by the manufacturer, or its agent, as a direct result of the bad faith claim.

681.108 Dispute-settlement procedures.

(1) If a manufacturer has established a procedure, which the division has certified as substantially complying with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, and with the provisions of this chapter and the rules adopted under this chapter, and has informed the consumer how and where to file a claim with such procedure pursuant to s. 681.103(3), the provisions of s. 681.104(2) apply to the consumer only if the consumer has first resorted to such procedure. The decision makers for a certified procedure shall, in rendering decisions, take into account all legal and equitable factors germane to a fair and just decision, including, but not limited to, the warranty; the rights and remedies conferred under 16 C.F.R. part 703, in effect October 1, 1983; the provisions of this chapter; and any other equitable considerations appropriate under the circumstances. Decision makers and staff of a procedure shall be trained in the provisions of this chapter and in 16 C.F.R. part 703, in effect October 1, 1983. In an action brought by a consumer concerning an alleged nonconformity, the decision that results from a certified procedure is admissible in evidence.

(2) A manufacturer may apply to the division for certification of its procedure. After receipt and evaluation of the application, the division shall certify the procedure or notify the manufacturer of any deficiencies in the application or the procedure.

(3) A certified procedure or a procedure of an applicant seeking certification shall submit to the division a copy of each settlement approved by the procedure or decision made by a decision maker within 30 days after the settlement is reached or the decision is rendered. The decision or settlement must contain at a minimum the:

1. Name and address of the consumer;

2. Name of the manufacturer and address of the dealership from which the motor vehicle was purchased;

3. Date the claim was received and the location of the procedure office that handled the claim;

4. Relief requested by the consumer;

5. Name of each decision maker rendering the decision or person approving the settlement;

6. Statement of the terms of the settlement or decision;

7. Date of the settlement or decision; and

8. Statement of whether the decision was accepted or rejected by the consumer.

(4) Any manufacturer establishing or applying to establish a certified procedure must file with the division a copy of the annual audit required under the provisions of 16 C.F.R. part 703, in effect October 1, 1983, together with any additional information required for purposes of certification, including the number of refunds and replacements made in this state pursuant to the provisions of this chapter by the manufacturer during the period audited.

(5) The division shall review each certified procedure at least annually, prepare an annual report evaluating the operation of certified procedures established by motor vehicle manufacturers and procedures of applicants seeking certification, and, for a period not to exceed 1 year, shall grant certification to, or renew certification for, those manufacturers whose procedures substantially comply with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, and with the provisions of this chapter and rules adopted under this chapter. If certification is revoked or denied, the division shall state the reasons for such action. The reports and records of actions taken with respect to certification shall be public records.

(6) A manufacturer whose certification is denied or revoked is entitled to a hearing pursuant to chapter 120.

(7) If federal preemption of state authority to regulate procedures occurs, the provisions of subsection (1) concerning prior resort do not apply.

(8) The division shall adopt rules to implement this section.

681.109 Florida New Motor Vehicle Arbitration Board.

Dispute eligibility.

(1) If a manufacturer has a certified procedure, a consumer claim arising during the Lemon Law rights period must be filed with the certified procedure no later than 60 days after the expiration of the Lemon Law rights period. If a decision is not rendered by the certified procedure within 40 days of filing, the consumer may apply to the division to have the dispute removed to the board for arbitration.

(2) If a manufacturer has a certified procedure, a consumer claim arising during the Lemon Law rights period must be filed with the certified procedure no later than 60 days after the expiration of the Lemon Law rights period. If a consumer is not satisfied with the decision or the manufacturer's compliance therewith, the consumer may apply to the division to have the dispute submitted to the board for arbitration. A manufacturer may not seek review of a decision made under its procedure.

(3) If a manufacturer has no certified procedure or if a certified procedure does not have jurisdiction to resolve the dispute, a consumer may apply directly to the division to have the dispute submitted to the board for arbitration.

(4) A consumer must request arbitration before the board with respect to a claim arising during the Lemon Law rights period no later than 60 days after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified procedure, whichever date occurs later.

(5) The division shall screen all requests for arbitration before the board to determine eligibility. The consumer's request for arbitration before the board shall be made on a form prescribed by the department. The division shall forward to the board all disputes that the division determines are potentially entitled to relief under this chapter.

(6) The division may reject a dispute that it determines to be fraudulent or outside the scope of the board's authority. Any dispute deemed by the division to be ineligible for arbitration by the board due to insufficient evidence may be reconsidered upon the submission of new information regarding the dispute. Following a second review, the division may reject a dispute if the evidence is clearly insufficient to qualify for relief. Any dispute rejected by the division shall be forwarded to the department and a copy shall be sent by registered mail to the consumer and the manufacturer, containing a brief explanation as to the reason for rejection.

(7) If the division rejects a dispute, the consumer may file a lawsuit to enforce the remedies provided under this chapter. In any civil action arising under this chapter and relating to a matter considered by the division, any determination made to reject a dispute is admissible in evidence.

(8) The department shall have the authority to adopt reasonable rules to carry out the provisions of this section.

681.1095 Florida New Motor Vehicle Arbitration Board.

Creation and function.

(1) There is established within the Department of Legal Affairs, the Florida New Motor Vehicle Arbitration Board, consisting of members appointed by the Attorney General for an initial term of 1 year. Board members may be reappointed for additional terms of 2 years. Each board member is accountable to the Attorney General for the performance of the member's duties and is exempt from civil liability for any act or omission which occurs while acting in the member's official capacity. The Department of Legal Affairs shall defend a member in any action against the member or the board which arises from any such act or omission. The Attorney General may establish as many regions of the board as necessary to carry out the provisions of this chapter.

(2) The boards shall hear cases in various locations throughout the state so any consumer whose dispute is approved for arbitration by the division may attend an arbitration hearing at a reasonably convenient location and present a dispute orally. Hearings shall be conducted by panels of three board members assigned by the department. A majority vote of the three-member board panel shall be required to render a decision. Arbitration proceedings under this section shall be open to the public on reasonable and nondiscriminatory terms.

(3) Each region of the board shall consist of up to eight members. The members of the board shall construe and apply the provisions of this chapter, and rules adopted thereunder, in making their decisions. An administrator and a secretary shall be assigned to each board by the Department of Legal Affairs. At least one member of each board must be a person with expertise in motor vehicle mechanics. A member must not be employed by a manufacturer or a franchised motor vehicle dealer or be a staff member, a decision maker, or a consultant for a procedure. Board members shall be trained in the application of this chapter and any rules adopted under this chapter, shall be reimbursed for travel expenses pursuant to s. 112.061, and shall be compensated at a rate or wage prescribed by the Attorney General.

(4) Before filing a civil action on a matter subject to s. 681.104, the consumer must first submit the dispute to the division, and to the board if such dispute is deemed eligible for arbitration.

(5) Manufacturers shall submit to arbitration conducted by the board if such arbitration is requested by a consumer and the dispute is deemed eligible for arbitration by the division pursuant to s. 681.109.

(6) The board shall hear the dispute within 40 days and render a decision within 60 days after the date the request for arbitration is approved. The board may continue the hearing on its own motion or upon the request of a party for good cause shown. A request for continuance by the consumer constitutes waiver of the time periods set forth in this subsection. The Department of Legal Affairs, at the board's request, may investigate disputes, and may issue subpoenas for the attendance of witnesses and for the production of records, documents, and other evidence before the board. The failure of the board to hear a dispute or render a decision within the prescribed periods does not invalidate the decision.

(7) At all arbitration proceedings, the parties may present oral and written testimony, present witnesses and evidence relevant to the dispute, cross-examine witnesses, and be represented by counsel. The board may administer oaths or affirmations to witnesses and inspect the vehicle if requested by a party or if the board deems such inspection appropriate.

(8) The board shall grant relief, if a reasonable number of attempts have been undertaken to correct a nonconformity or nonconformities.

(9) The decision of the board shall be sent by registered mail to the consumer and the manufacturer, and shall contain written findings of fact and rationale for the decision. If the decision is in favor of the consumer, the manufacturer must, within 40 days after receipt of the decision, comply with the terms of the decision. Compliance occurs on the date the consumer receives delivery of an acceptable replacement motor vehicle or the refund specified in the arbitration award. In any civil action arising under this chapter and relating to a dispute arbitrated before the board, any decision by the board is admissible in evidence.

(10) A decision is final unless appealed by either party. A petition to the circuit court to appeal a decision must be made within 30 days after receipt of the decision. The petition shall be filed in the county where the consumer resides, or where the motor vehicle was acquired, or where the arbitration hearing was conducted. Within 7 days after the petition has been filed, the appealing party must send a copy of the petition to the department. If the department does not receive notice of such petition within 40 days after the manufacturer's receipt of a decision in favor of the consumer, and the manufacturer has neither complied with, nor has petitioned to appeal such decision, the department may apply to the circuit court to seek imposition of a fine up to $1,000 per day against the manufacturer until the amount stands at twice the purchase price of the motor vehicle, unless the manufacturer provides clear and convincing evidence that the delay or failure was beyond its control or was acceptable to the consumer as evidenced by a written statement signed by the consumer. If the manufacturer fails to provide such evidence or fails to pay the fine, the department shall initiate proceedings against the manufacturer for failure to pay such fine. The proceeds from the fine herein imposed shall be placed in the Motor Vehicle Warranty Trust Fund in the department for implementation and enforcement of this chapter. If the manufacturer fails to comply with the provisions of this subsection, the court shall affirm the award upon application by the consumer.

(11) All provisions in this section and s. 681.109 pertaining to compulsory arbitration before the board, the dispute eligibility screening by the division, the proceedings and decisions of the board, and any appeals thereof, are exempt from the provisions of chapter 120.

(12) An appeal of a decision by the board to the circuit court by a consumer or a manufacturer shall be by trial de novo. In a written petition to appeal a decision by the board, the appealing party must state the action requested and the grounds relied upon for appeal. Within 30 days of final disposition of the appeal, the appealing party shall furnish the department with notice of such disposition and, upon request, shall furnish the department with a copy of the order or judgment of the court.

(13) If a decision of the board in favor of the consumer is upheld by the court, recovery by the consumer shall include the pecuniary value of the award, attorney's fees incurred in obtaining confirmation of the award, and all costs and continuing damages in the amount of $25 per day for each day beyond the 40-day period following the manufacturer's receipt of the board's decision. If a court determines that the manufacturer acted in bad faith in bringing the appeal or brought the appeal solely for the purpose of harassment or in complete absence of a justiciable issue of law or fact, the court shall double, and may triple, the amount of the total award.

(14) When a judgment affirms a decision by the board in favor of a consumer, appellate review may be conditioned upon payment by the manufacturer of the consumer's attorney's fees and giving security for costs and expenses resulting from the review period.

(15) The department shall maintain records of each dispute submitted to the board, and the program, including an index of motor vehicles by year, make, and model, and shall compile aggregate annual statistics for all disputes submitted to, and decided by, the board, as well as annual statistics for each manufacturer that include, but are not limited to, the value, if applicable, and the number and percent of:

(a) Replacement motor vehicle requests;

(b) Purchase price refund requests;

(d) Purchase price refunds obtained in prehearing settlements;

(e) Replacement motor vehicles awarded in arbitration;

(f) Purchase price refunds awarded in arbitration;

(g) Board decisions neither complied with in 40 days nor petitioned for appeal within 30 days;

(h) Board decisions appealed;

(i) Appeals affirmed by the court; and

(j) Appeals found by the court to be brought in bad faith or solely for the purpose of harassment.

The statistics compiled under this subsection are public information.

(16) When requested by the department, a manufacturer must verify the settlement terms for disputes that are approved for arbitration but are not decided by the board.

681.1096 Pilot RV Mediation and Arbitration Program.

Creation and qualifications.

(1) This section and s. 681.1097 shall apply to disputes determined eligible under this chapter involving recreational vehicles acquired on or after October 1, 1997, and shall remain in effect until September 30, 2001, at which time recreational vehicle disputes shall be subject to the provisions of ss. 681.109 and 681.1095. The Attorney General shall report annually to the President of the Senate, the Speaker of the House of Representatives, the Minority Leader of each house of the Legislature, and appropriate legislative committees regarding the efficiency and cost-effectiveness of the pilot program.

(2) Each manufacturer of a recreational vehicle involved in a dispute that is determined eligible under this chapter, including chassis and component manufacturers which separately warrant the chassis and components and which otherwise meet the definition of manufacturer set forth in s. 681.102(14), shall participate in a mediation and arbitration program that is deemed qualified by the department.

(3) In order to be deemed qualified by the department, the mediation and arbitration program must, at a minimum, meet the following requirements:

(a) The program must be administered by an administrator and staff that is sufficiently insulated from the manufacturer to ensure impartial mediation and arbitration services.

(b) Program administration fees must be paid by the manufacturer and no such fees shall be charged to a consumer.

(c) The program must be adequately staffed at a level sufficient to ensure the provision of fair and expeditious dispute resolution services.

(d) Program mediators and arbitrators must be sufficiently insulated from a manufacturer to ensure the provision of impartial mediation and arbitration of disputes.

(e) Program mediators and arbitrators shall not be employed by a manufacturer or a motor vehicle dealer.

(f) Program mediators must complete a Florida Supreme Court certified circuit or county mediation training program, or other mediation training program approved by the department, in addition to a minimum of one-half day of training on this chapter conducted by the department.

(g) Program mediators must comply with the Model Standards of Conduct for Mediators issued by the American Arbitration Association, the Dispute Resolution Section of the American Bar Association, and the Society of Professionals in Dispute Resolution.

(h) Program arbitrators must complete a Florida Supreme Court certified circuit or county arbitration program, or other arbitration training program approved by the department, in addition to a minimum of 1 day of training in the application of this chapter and any rules adopted thereunder conducted by the department.

(i) Program arbitrators must comply with the Code of Ethics for Arbitrators in Commercial Disputes published by the American Arbitration Association and the American Bar Association in 1977 and as amended.

(j) Program arbitrators must construe and apply the provisions of this chapter and rules adopted thereunder in making decisions.

(k) The program must complete all mediation and arbitration of an eligible consumer claim within 70 days of the program administrator's receipt of the claim from the department. Failure of the program to complete all proceedings within the prescribed period will not invalidate any settlement agreement or arbitration decision.

(l) Mediation conferences and arbitration proceedings must be held at reasonably convenient locations within the state so as to enable a consumer to attend and present a dispute orally.

(4) The department shall monitor the program for compliance with this chapter. If the program is determined not qualified or if qualification is revoked, then the involved manufacturer shall be required to submit to arbitration conducted by the board if such arbitration is requested by a consumer and the dispute is deemed eligible for arbitration by the division pursuant to s. 681.109.

(5) If a program is determined not qualified or if qualification is revoked, the involved manufacturer shall be notified by the department of any deficiencies in the program and informed that it is entitled to a hearing pursuant to chapter 120.

(6) The program administrator, mediators, and arbitrators are exempt from civil liability arising from any act or omission in connection with any mediation or arbitration conducted under this chapter.

(7) The program administrator shall maintain records of each dispute submitted to the program, including the recordings of arbitration hearings. All records maintained by the program under this chapter shall be public records and shall be available for inspection by the department upon reasonable notice. The records for disputes closed as of September 30 of each year shall be turned over to the department by the program administrator by no later than October 30 of the same year, unless a later date is specified by the department.

(8) The department shall have the authority to adopt reasonable rules to carry out the provisions of this section.

681.1097 RV Pilot Mediation and Arbitration Program.

Dispute eligibility and program function.

(1) Before filing a civil action on a matter subject to s. 681.104, a consumer who acquires a recreational vehicle must first submit the dispute to the department, and to the program if the dispute is deemed eligible. Such consumer is not required to resort to a procedure certified pursuant to s. 681.108, notwithstanding that one of the manufacturers of the recreational vehicle has such a procedure. Such consumer is not required to resort to arbitration conducted by the board, except as provided in s. 681.1096(4) and in this section.

(2) A consumer acquiring a recreational vehicle must apply to participate in this program with respect to a claim arising during the Lemon Law rights period by filing the application in subsection (3) with the department no later than 60 days after the expiration of the Lemon Law rights period.

(3) The consumer's application for participation in the program must be on a form prescribed or approved by the department. The department shall screen all applications to participate in the program to determine eligibility. The department shall forward to the program administrator all applications the department determines are potentially entitled to relief under this chapter.

(a) If the department determines the application lacks sufficient information from which a determination of eligibility can be made, the department shall request additional information from the consumer and, upon review of such additional information, shall determine whether the application is eligible or reject the application as incomplete.

(b) The department shall reject any application it determines to be fraudulent or outside the scope of this chapter.

(c) The consumer and the manufacturer shall be notified in writing by the department if an application is rejected. Such notification of rejection shall include a brief explanation as to the reason for the rejection.

(d) If the department rejects a dispute, the consumer may file a lawsuit to enforce the remedies provided under this chapter. In any civil action arising under this chapter and relating to the matter considered by the department, any determination made to reject a dispute is admissible in evidence.

(4) Mediation shall be mandatory for both the consumer and manufacturer, unless the dispute is settled prior to the scheduled mediation conference. The mediation conference shall be confidential and inadmissible in any subsequent adversarial proceedings. Participation shall be limited to the parties directly involved in the dispute and their attorneys, if any. All manufacturers shall be represented by persons with settlement authority.

(a) Upon receipt of an eligible application from the department, the program administrator shall notify the consumer and all involved manufacturers in writing that an eligible application has been received. Such notification shall include a statement that a mediation conference will be scheduled, shall identify the assigned mediator, and provide information regarding the program's procedures. The program administrator shall provide all involved manufacturers with a copy of the completed application.

(b) The mediator shall be selected and assigned by the program administrator. The parties may factually object to a mediator based upon the mediator's past or present relationship with a party or a party's attorney, direct or indirect, whether financial, professional, social, or of any other kind. The program administrator shall consider any such objection, determine its validity, and notify the parties of any determination. If the objection is determined valid, the program administrator shall assign another mediator to the case.

(c) At the mediation conference, the mediator shall assist the parties' efforts to reach a mutually acceptable settlement of their dispute; however, the mediator shall not impose any settlement upon the parties.

(d) Upon conclusion of the mediation conference, the mediator shall notify the program administrator that the case has settled or remains at an impasse. The program administrator shall notify the department in writing of the outcome of the mediation.

(e) If the mediation conference ends in an impasse, it shall proceed to arbitration pursuant to subsection (5). The program administrator shall immediately notify the parties in writing that the dispute will proceed to arbitration and shall identify the assigned arbitrator.

(f) If the parties enter into a settlement at any time after the dispute has been submitted to the program, such settlement must be reduced to writing, signed by the consumer and all involved manufacturers, and filed with the program administrator. The program administrator shall send a copy to the department. All settlements must contain, at a minimum, the following information:

1. Name and address of the consumer.

2. Name and address of each involved manufacturer.

3. Year, make, model, and vehicle identification number of the subject recreational vehicle.

4. Name and address of the dealership from which the recreational vehicle was acquired.

5. Date the claim was received by the program administrator.

6. Name of the mediator and/or arbitrator, if any.

7. Statement of the terms of the agreement, including, but not limited to: whether the vehicle is to be reacquired by a manufacturer and the identity of the manufacturer that will reacquire the vehicle; the amount of any moneys to be paid by the consumer and/or a manufacturer; the year, make, and model of any replacement motor vehicle or motor vehicle accepted by the consumer as a trade-assist; and a time certain for performance not to exceed 40 days from the date the settlement agreement is signed by the parties.

(g) If a manufacturer fails to perform within the time required in any settlement agreement, the consumer must notify the program administrator of such failure in writing within 10 days of the required performance date. Within 10 days of receipt of such notice, the program administrator shall notify the department of the manufacturer's failure in compliance and shall schedule the matter for an arbitration hearing pursuant to subsection (5).

(5) If the mediation ends in an impasse, or if a manufacturer fails to comply with the settlement entered into between the parties, the program administrator shall schedule the dispute for an arbitration hearing. Arbitration proceedings shall be open to the public on reasonable and nondiscriminatory terms.

(a) The arbitration hearing shall be conducted by a single arbitrator assigned by the program administrator. The arbitrator shall not be the same person as the mediator who conducted the prior mediation conference in the dispute. The parties may factually object to an arbitrator based on the arbitrator's past or present relationship with a party or a party's attorney, direct or indirect, whether financial, professional, social, or of any other kind. The program administrator shall consider any such objection, determine its validity, and notify the parties of any determination. If the objection is determined valid, the program administrator shall assign another arbitrator to the case.

(b) The arbitrator may issue subpoenas for the attendance of witnesses and for the production of records, documents, and other evidence. Subpoenas so issued shall be served and, upon application to the court by a party to the arbitration, enforced in the manner provided by law for the service and enforcement of subpoenas in civil actions. Fees for attendance as a witness shall be the same as for a witness in the circuit court.

(c) At all program arbitration proceedings, the parties may present oral and written testimony, present witnesses and evidence relevant to the dispute, cross-examine witnesses, and be represented by counsel. The arbitrator shall record the arbitration hearing and shall have the power to administer oaths. The arbitrator may inspect the vehicle if requested by a party or if the arbitrator considers such inspection appropriate.

(d) The program arbitrator may continue a hearing on his or her own motion or upon the request of a party for good cause shown. A request for continuance by the consumer constitutes a waiver of the time period set forth in s. 681.1096(3)(k) for completion of all proceedings under the program.

(e) Where the arbitration is the result of a manufacturer's failure to perform in accordance with a mediation agreement, any relief to the consumer granted by the arbitration will be no less than the relief agreed to by the manufacturer in the settlement agreement.

(f) The arbitrator shall grant relief if a reasonable number of attempts have been undertaken to correct a nonconformity or nonconformities.

(g) The program arbitrator shall render a decision within 10 days of the closing of the hearing. The decision shall be in writing on a form prescribed or approved by the department. The program administrator shall send a copy of the decision to the consumer and each involved manufacturer by registered mail. The program administrator shall also send a copy of the decision to the department within 5 days of mailing to the parties.

(h) A manufacturer shall comply with an arbitration decision within 40 days of the date the manufacturer receives the written decision. Compliance occurs on the date the consumer receives delivery of an acceptable replacement motor vehicle or the refund specified in the arbitration award. If a manufacturer fails to comply within the time required, the consumer must notify the program administrator in writing within 10 days. The program administrator shall notify the department of a manufacturer's failure to comply. The department shall have the authority to enforce compliance with arbitration decisions under this section in the same manner as is provided for enforcement of compliance with board decisions under s. 681.1095(10). In any civil action arising under this chapter and relating to a dispute arbitrated pursuant to this section, the decision of the arbitrator is admissible in evidence.

(6) Except as otherwise provided, all provisions in this section pertaining to mandatory mediation and arbitration, eligibility screening, mediation proceedings, arbitration hearings and decisions, and any appeals thereof are exempt from the provisions of chapter 120.

(7) Either party may make application to the circuit court for the county in which one of the parties resides or has a place of business or, if neither party resides or has a place of business in this state, the county where the arbitration hearing was held, for an order confirming, vacating, modifying, or correcting any award, in accordance with the provisions of this section and ss. 682.12, 682.13, 682.14, 682.15, and 682.17. Such application must be filed within 30 days of the moving party's receipt of the written decision or the decision becomes final. Upon filing such application, the moving party shall mail a copy to the department and, upon entry of any judgment or decree, shall mail a copy of such judgment or decree to the department. A review of such application by the circuit court shall be confined to the record of the proceedings before the program arbitrator. The court shall conduct a de novo review of the questions of law raised in the application. In addition to the grounds set forth in ss. 682.13 and 682.14, the court shall consider questions of fact raised in the application. In reviewing questions of fact, the court shall uphold the award unless it determines that the factual findings of the arbitrator are not supported by substantial evidence in the record and that the substantial rights of the moving party have been prejudiced. If the arbitrator fails to state findings or reasons for the stated award, or the findings or reasons are inadequate, the court shall search the record to determine whether a basis exists to uphold the award. The court shall expedite consideration of any application filed under this section on the calendar.

(a) If a decision of a program arbitrator in favor of a consumer is confirmed by the court, recovery by the consumer shall include the pecuniary value of the award, attorney's fees incurred in obtaining confirmation of the award, and all costs and continuing damages in the amount of $25 per day for each day beyond the 40-day period following a manufacturer's receipt of the arbitrator's decision. If a court determines the manufacturer acted in bad faith in bringing the appeal or brought the appeal solely for the purpose of harassment, or in complete absence of a justiciable issue of law or fact, the court shall double, and may triple, the amount of the total award.

(b) An appeal of a judgment or order by the court confirming, denying confirmation, modifying or correcting, or vacating the award may be taken in the manner and to the same extent as from orders or judgments in a civil action.

(8) The department shall have the authority to adopt reasonable rules to carry out the provisions of this section.

681.110 Compliance and disciplinary actions.

The Department of Legal Affairs may enforce and ensure compliance with the provisions of this chapter and rules adopted thereunder, may issue subpoenas requiring the attendance of witnesses and production of evidence, and may seek relief in the circuit court to compel compliance with such subpoenas. The Department of Legal Affairs may impose a civil penalty against a manufacturer not to exceed $1,000 for each count or separate offense. The proceeds from the fine imposed herein shall be placed in the Motor Vehicle Warranty Trust Fund in the Department of Legal Affairs for implementation and enforcement of this chapter.

681.111 Unfair or deceptive trade practice.

A violation by a manufacturer of this chapter is an unfair or deceptive trade practice as defined in part II of chapter 501.

681.112 Consumer remedies.

(1) A consumer may file an action to recover damages caused by a violation of this chapter. The court shall award a consumer who prevails in such action the amount of any pecuniary loss, litigation costs, reasonable attorney's fees, and appropriate equitable relief.

(2) An action brought under this chapter must be commenced within 1 year after the expiration of the Lemon Law rights period, or, if a consumer resorts to an informal dispute-settlement procedure or submits a dispute to the division or board, within 1 year after the final action of the procedure, division, or board.

(3) This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law.

681.113 Dealer liability.

Except as provided in ss. 681.103(3) and 681.114(2), nothing in this chapter imposes any liability on a dealer as defined in s. 320.60(11)(a) or creates a cause of action by a consumer against a dealer, except for written express warranties made by the dealer apart from the manufacturer's warranties. A dealer may not be made a party defendant in any action involving or relating to this chapter, except as provided in this section. The manufacturer shall not charge back or require reimbursement by the dealer for any costs, including, but not limited to, any refunds or vehicle replacements, incurred by the manufacturer arising out of this chapter, in the absence of evidence that the related repairs had been carried out by the dealer in a manner substantially inconsistent with the manufacturer's published instructions.

681.114 Resale of returned vehicles.

(1) A manufacturer who accepts the return of a motor vehicle by reason of a settlement, determination, or decision pursuant to this chapter shall notify the department and report the vehicle identification number of that motor vehicle within 10 days after such acceptance, transfer, or disposal of the vehicle, whichever occurs later.

(2) A person shall not knowingly lease, sell at wholesale or retail, or transfer a title to a motor vehicle returned by reason of a settlement, determination, or decision pursuant to this chapter or similar statute of another state unless the nature of the nonconformity is clearly and conspicuously disclosed to the prospective transferee, lessee, or buyer, and the manufacturer warrants to correct such nonconformity for a term of 1 year or 12,000 miles, whichever occurs first. The Department of Legal Affairs shall prescribe by rule the form, content, and procedure pertaining to such disclosure statement.

(3) As used in this section, the term "settlement" means an agreement entered into between a manufacturer and consumer that occurs after a dispute is submitted to a procedure or program or is approved for arbitration before the board.

681.115 Certain agreements void.

Any agreement entered into by a consumer that waives, limits, or disclaims the rights set forth in this chapter is void as contrary to public policy. The rights set forth in this chapter shall extend to a subsequent transferee of such motor vehicle.

681.116 Preemption.

This chapter preempts any similar county or municipal ordinance regarding consumer warranty rights resulting from the acquisition of a motor vehicle in this state.

681.117 Fee.

(1) A $2 fee shall be collected by a motor vehicle dealer, or by a person engaged in the business of leasing motor vehicles, from the consumer at the consummation of the sale of a motor vehicle or at the time of entry into a lease agreement for a motor vehicle. Such fees shall be remitted to the county tax collector or private tag agency acting as agent for the Department of Revenue. All fees, less the cost of administration, shall be transferred monthly to the Department of Legal Affairs for deposit into the Motor Vehicle Warranty Trust Fund. The Department of Legal Affairs shall distribute monthly an amount not exceeding one-fourth of the fees received to the Division of Consumer Services of the Department of Agriculture and Consumer Services to carry out the provisions of ss. 681.108 and 681.109. The Department of Legal Affairs shall contract with the Division of Consumer Services for payment of services performed by the division pursuant to ss. 681.108 and 681.109.

(2) The Department of Revenue shall administer, collect, and enforce the fee authorized under this section pursuant to the provisions of chapter 212. The fee shall not be included in the computation of estimated taxes pursuant to s. 212.11(1)(a), nor shall the dealer's credit provided under s. 212.12 apply to the fee. The provisions of chapter 212 regarding the authority to audit and make assessments, the keeping of books and records, and interest and penalties on delinquent fees apply to the fee imposed by this section.

681.118 Rulemaking authority.

The Department of Legal Affairs shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter.

GEORGIA STATE LEMON LAWS

2008-12-13T03:52:00.002-08:00

GEORGIA STATE LEMON LAWS

Georgia Lemon Law
Official Code of Georgia Annotated, งง10-1-780 to 792

10-1-780

This article shall be known and may be cited as the "Motor Vehicle Warranty Rights Act."

10-1-781

The General Assembly recognizes that a new motor vehicle is a major consumer purchase and that a defective motor vehicle is likely to create hardship for, or may cause injury to, the consumer. It is the intent of the General Assembly to ensure that the consumer is made aware of his or her rights under this article. In enacting these comprehensive measures, it is the intent of the General Assembly to create the proper blend of private and public remedies necessary to enforce this article.

10-1-782

Unless the context clearly requires otherwise, the definitions in this Code section apply throughout this article. As used in this article, the term:

(1) "Administrator" means the administrator appointed pursuant to Code Section 10-1-395.

(2) "Collateral charges" means those additional charges to a consumer or lessor wholly incurred as a result of the acquisition purchase of the motor vehicle. For the purposes of this article, collateral charges include but are not limited to manufacturer installed or dealer installed items or service charges, earned finance charges incurred by a consumer in the case of a purchase, and by the lessor in the case of a lease, sales tax, and title charges.

(3) "Consumer" means any person who has entered into an agreement or contract for the transfer, lease, or purchase of a new motor vehicle primarily for personal, family, or household purposes, regardless of how the documents characterize the transaction. The term shall also mean and include any sole proprietorship, partnership, or corporation which is a commercial owner or lessee of no more than three new motor vehicles and which has ten or fewer employees and a net income after taxes of $100,000.00 per annum or less for federal income tax purposes. For the limited purpose of enforcing the rights granted under this article, the term "consumer" will also include any person or entity regularly engaged in the business of leasing new motor vehicles to consumers.

(4) "Court" means the superior court in the county where the consumer resides, except if the consumer does not reside in this state, then the superior court in the county where an arbitration hearing or determination was conducted or made pursuant to this article.

(5) "Distributor" means a person or entity holding a distribution agreement with a manufacturer for the distribution of new motor vehicles to new motor vehicle dealers or who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such distribution, who is not responsible to the manufacturer for honoring the manufacturer's express warranty, and who does not issue an express warranty to consumers.

(6) "Express warranty" means a warranty which is given by the manufacturer in writing.

(7) "Incidental costs" means any reasonable expenses incurred by the consumer in connection with the repair of the new motor vehicle, including but not limited to payments to dealers for attempted repairs of nonconformities, towing charges, and the costs of obtaining alternative transportation.

(8) "Informal dispute resolution settlement mechanism" means any procedure established, employed, utilized, or run by a manufacturer for the purpose of resolving disputes with consumers regarding any warranty.

(9) "Lemon law rights period" means the period ending one year after the date of the original delivery of a new motor vehicle to a consumer or the first 12,000 miles of operation after delivery of a new motor vehicle to a consumer, whichever occurs first.

(10) "Manufacturer" means any person engaged in the business of constructing or assembling new motor vehicles or engaged in the business of importing new motor vehicles into the United States for the purpose of selling or distributing new motor vehicles to new motor vehicle dealers.

(11) "New motor vehicle" means any self-propelled vehicle, primarily designed for the transportation of persons or property over the public highways, that was leased or purchased in this state or registered by the original consumer in this state and on which the original motor vehicle title was issued to the lessor or purchaser without having been previously issued to any person other than the selling dealer. If the motor vehicle is a motor home, this article shall apply to the self-propelled vehicle and chassis, but does not include those portions of the vehicle designated, used, or maintained primarily as a mobile dwelling, office, or commercial space. The term "new motor vehicle" does not include motorcycles or trucks with 10,000 pounds or more gross vehicle weight rating. The term "new motor vehicle" shall not include any vehicle on which the title and other transfer documents show a used, rather than new, vehicle. The term "new motor vehicle" includes a demonstrator or lease-purchase, as long as a manufacturer's warranty was issued as a condition of sale, unless specifically excluded under this definition.

(12) "New motor vehicle dealer" means a person who holds a dealer agreement with a manufacturer for the sale of new motor vehicles, who is engaged in the business of purchasing, selling, servicing, exchanging, leasing, distributing, or dealing in new motor vehicles, or who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such sales. For the purposes of subsection (d) of Code Section 10-1-784, concerning private civil actions for violations of this article, the term "new motor vehicle dealer" shall include any person or entity regularly engaged in the business of leasing new motor vehicles to consumers.

(13) "Nonconformity" means a defect, serious safety defect, or condition that substantially impairs the use, value, or safety of a new motor vehicle to the consumer, but does not include a defect or condition that is the result of abuse, neglect, or unauthorized modification or alteration of the new motor vehicle.

(14) "Panel" means a new motor vehicle arbitration panel as designated in Code Sections 10-1-786 and 10-1-794.

(15) "Purchase price" means in the case of a sale of a new motor vehicle to a consumer the cash price of the new motor vehicle appearing in the sales agreement, contract, or leasing agreement, including any reasonable allowance for a trade-in vehicle. In determining whether the trade-in allowance was reasonable, the panel may take into account whether the purchase price of the vehicle was at fair market value or not and make appropriate adjustments to ensure that the consumer is made whole but not unjustly enriched. In the case of a consumer lease of a new motor vehicle, "purchase price" means the cash price paid by the lessor to a dealer or distributor to purchase the new motor vehicle.

(16) "Reasonable offset for use" means an amount directly attributable to use by the consumer before the consumer requests repurchase or replacement by the manufacturer pursuant to Code Section 10-1-784. The reasonable offset for use shall be computed by the number of miles that the vehicle traveled before the consumer's request of repurchase or replacement multiplied by the purchase price and divided by 100,000.

(17) "Reasonable number of attempts" under the lemon law rights period means the definition as provided in Code Section 10-1-784.

(18) "Replacement motor vehicle" means a new motor vehicle that is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of purchase or lease.

(19) "Serious safety defect" means a life-threatening malfunction or nonconformity.

(20) "Substantially impair" means to render the new motor vehicle unreliable, or unsafe for ordinary use, or to diminish the resale value of the new motor vehicle more than a meaningful amount below the average resale value for comparable motor vehicles.

(21) "Warranty" means any express written warranty of the manufacturer but shall not include any extended coverage purchased by the consumer as a separate item.

10-1-783

(a) Each new motor vehicle dealer shall provide an owner's manual which shall be published by the manufacturer and include a list of the addresses and phone numbers at which consumers may, at no cost, contact the manufacturer's customer service personnel who are authorized to direct activities regarding repair of the consumer's vehicle.

(b) At the time of purchase, the new motor vehicle dealer shall provide the consumer with a written statement that explains the consumer's rights under this article. The statement shall be written by the administrator and shall contain information regarding the procedures and remedies under this article.

(c) For the purposes of this article, if a new motor vehicle has a nonconformity and the consumer reports the nonconformity during the lemon law rights period to the manufacturer, its agent, or the new motor vehicle dealer who sold the new motor vehicle, the vehicle shall be repaired at the manufacturer's expense to correct the nonconformity regardless of whether such repairs are made after the expiration of the lemon law rights period. If in any subsequent proceeding under this article it is determined that the consumer's repair did not qualify under this article, and the manufacturer was not otherwise obligated to repair the vehicle, the consumer shall be liable to the manufacturer for the costs of the repair.

(d) Upon request from the consumer, the manufacturer or new motor vehicle dealer shall provide a copy of any report or computer reading compiled by the manufacturer's field or zone representative regarding inspection, diagnosis, or test-drive of the consumer's new motor vehicle.

(e) Each time the consumer's vehicle is returned from being diagnosed or repaired under the lemon law rights period or under a warranty, the new motor vehicle dealer shall provide to the consumer a fully itemized, legible statement or repair order indicating any diagnosis made, and all work performed on the vehicle, including but not limited to a general description of the problem reported by the consumer or an identification of the defect or condition, parts and labor, the date and the odometer reading when the vehicle was submitted for repair, and the date when the vehicle was made available to the consumer.

(f) No manufacturer, its agent, or new motor vehicle dealer may refuse to diagnose or repair any nonconformity for the purpose of avoiding liability under this article.

(g) The lemon law rights period and 30 day out-of-service period shall be extended by any time that repair services are not available to the consumer as a direct result of a strike, war, invasion, fire, flood, or other natural disaster.

10-1-784

(a)

(1) If the manufacturer, its agent, or the new motor vehicle dealer is unable to repair or correct any nonconformity in a new motor vehicle after a reasonable number of attempts, the consumer shall notify the manufacturer by certified mail, return receipt requested, at the address provided by the manufacturer. The manufacturer shall, within seven days after receipt of such notification, notify the consumer of a reasonably accessible repair facility and after delivery of the vehicle to the designated repair facility by the consumer, the manufacturer shall, within 14 days, conform the motor vehicle to the warranty. If the manufacturer is unable to repair or correct any nonconformity of the new motor vehicle, the manufacturer shall, within 30 days of the consumer's written request, by certified mail, return receipt requested, at the option of the consumer, or the lessor in the event of a leased motor vehicle, replace or repurchase the new motor vehicle. If the manufacturer fails to notify the consumer of a reasonably accessible repair facility or perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply.

(2) If a lessor elects replacement, the contractual obligation, except for those terms of the agreement which identify the vehicle, between the lessor and the consumer shall not be altered. If a lessor elects repurchase, it shall return to the consumer a sum equal to the allowance for any trade-in, and down payment or initial balloon payment, made by the consumer, and all future obligations of the consumer to the lessor shall cease. In the event a lessor elects to require the manufacturer to repurchase a leased vehicle, the consumer will remain liable for all lease obligations arising prior to the date that the lessor elects such replacement, but will have no future obligations under the lease, and will be liable for no penalty for early termination. A lessor must elect either a repurchase or replacement within 30 days of receiving written notice from the consumer that such an election is desired; if the lessor fails to make such an election within the 30 days, the consumer may make the election to repurchase or replace and the lessor shall be bound by the consumer's election.

(3) The replacement motor vehicle shall be identical or reasonably equivalent to the motor vehicle to be replaced. Such replacement shall include payment of all collateral charges which the consumer or lessor will incur a second time which would not have been incurred again except for the replacement, and any and all incidental costs incurred by the consumer or lessor. In the case of a replacement motor vehicle, the reasonable offset for use shall be paid by the consumer to the manufacturer. Compensation for a reasonable offset for use shall be paid by the consumer to the manufacturer in the event that a replacement motor vehicle is elected. In the case of a lease where the consumer either has no option to purchase the motor vehicle at the end of the lease term, or the consumer has an option to purchase the motor vehicle at the end of the lease term but does not exercise the option, the lessor shall refund to the consumer the lesser of

(A) the offset for use paid by the consumer to the manufacturer at the time of delivery of the replacement vehicle, or

(B) the gain realized by the lessor by reason of the difference, if any, between the anticipated residual value of the original motor vehicle as determined at the inception of the lease and the realized value of the replacement motor vehicle at the end of the lease. If the lessor does not realize any gain from the disposition of the replacement vehicle, there will be no refund due to the consumer from the lessor.

The foregoing rules apply only to leases where the consumer performs all of the consumer's obligations under the lease agreement and the lease terminates upon the scheduled expiration of the lease term as set forth in the lease agreement or any mutually agreed upon extension of the lease term. The administrator may provide by rule under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for determining the manner of calculating the amount of any further charges or refunds that may apply in the case of leases terminated prematurely either by the voluntary election of the parties, or involuntarily by the lessor in the event of the lessee's default, the loss or destruction of the vehicle, or for any other reason.

(4) When repurchasing the new motor vehicle, the manufacturer shall refund to the consumer all collateral charges and incidental costs. In the event of a repurchase, purchase price refunds shall be made to the consumer and lien holder of record, if any, as his or her interests may appear, less a reasonable offset for use. In the event of a lease, purchase price refunds shall be made to the lessor, less a reasonable offset for use. If it is determined that the lessee is entitled to a refund, the consumer's lease agreement with the lessor shall be terminated upon payment of the refund and no penalty for early termination shall be assessed.

(b) A reasonable number of attempts shall be presumed as a matter of law to have been undertaken by the manufacturer, its agent, or the new motor vehicle dealer to repair or correct any nonconformity of a new motor vehicle, if:

(1) a serious safety defect in the braking or steering system has been subject to repair at least once during the lemon law rights period and has not been corrected;

(2) during any period of 24 months or less, or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, any other serious safety defect has been subject to repair two or more times, at least one of which is during the lemon law rights period, and the nonconformity continues to exist;

(3) during any period of 24 months or less or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, the same nonconformity has been subject to repair, three or more times, at least one of which is during the lemon law rights period, and the nonconformity continues to exist; or

(4) during any period of 24 months or less or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, the vehicle is out of service by reason of repair of one or more nonconformities for a cumulative total of 30 calendar days, at least 15 of them during the lemon law rights period. If less than 15 days remain under the lemon law rights period when the new motor vehicle is first brought in for diagnosis or repair, the lemon law rights period as regards the problem to be diagnosed or repaired shall be extended for a period of 90 days.

(c) For purposes of this article, the lemon law rights period regarding nonconformities on all new motor vehicles sold in this state shall be for 12 months following the purchase of the vehicle or for 12,000 miles following the purchase of the vehicle, whichever occurs first.

(d) This article shall not create and shall not give rise to any cause of action against and shall not impose any liability upon any new motor vehicle dealer or distributor except as provided in this Code section. No new motor vehicle dealer or distributor shall be held liable by the manufacturer or by the consumer for any collateral charges, damages, costs, purchase price refunds, or vehicle replacements, and manufacturers and consumers shall not have a cause of action against a new motor vehicle dealer or distributor under this article. A violation of any duty or responsibility imposed upon a new motor vehicle dealer or distributor under this article shall constitute a per se violation of Code Section 10-1-393; provided, however, that enforcement against such violations shall be by public enforcement by the administrator and shall not be enforceable through private enforcement under the provisions of Code Section 10-1-399, except that a knowing violation of Code Section 10-1-785 shall be enforceable through private enforcement under the provisions of Code Section 10-1-399.The provisions of Code Sections 11-2-602 through 11-2-609 shall not apply to the sale of a new motor vehicle if the consumer seeks to use the remedies provided for in this article. A consumer shall be deemed to have used the remedies provided for in this article when he or she completes, signs, and returns forms prescribed by the administrator for the submission of disputes to an informal dispute resolution settlement mechanism or to a panel, whichever occurs first. Such forms shall contain a conspicuous statement clearly advising the consumer of the rights the consumer is waiving by participating in the procedures under this article. A consumer may not use the remedies provided for in this article if the consumer has already sought to use the remedies provided for in Code Sections 11-2-602 through 11-2-609, unless the nonconformity did not exist or was not known at the time of using the remedies provided for in such Code sections. Manufacturers and consumers may not make new motor vehicle dealers or distributors parties to arbitration panel proceedings or any other proceedings under this article. The provisions of this article shall not impair any obligation under any manufacturer-dealer franchise agreement or manufacturer-distributor agreement; provided, however, that any provision of any manufacturer-dealer franchise agreement or manufacturer-distributor agreement which attempts to shift any duty, obligation, responsibility, or liability imposed upon a manufacturer by this article to a new motor vehicle dealer or distributor, either directly or indirectly, shall be void and unenforceable, except for any liability imposed upon a manufacturer by this article which is directly caused by the gross negligence of the dealer in attempting to repair the motor vehicle after such gross negligence has been determined by the hearing officer, as provided in Article 22 of this chapter, the "Georgia Motor Vehicle Franchise Practices Act."

10-1-785

(a) No manufacturer or other transferor shall knowingly resell, either at wholesale or retail, lease, transfer a title, or otherwise transfer, except to sell for scrap, any motor vehicle which has been determined to have a serious safety defect by reason of a determination, adjudication, or settlement decision pursuant to this article or similar statute of any other state, unless the serious safety defect has been corrected; the manufacturer warrants in writing upon the resale, transfer, or lease that the defect has been corrected; and the transferor provides the manufacturer's written warranty under this Code section to the consumer.

(b) After replacement or repurchase pursuant to this article of a motor vehicle with a nonconformity, other than a serious safety defect, which has not been corrected, the manufacturer shall notify the administrator, by certified mail, upon receipt of the manufacturer's motor vehicle. If such nonconformity is corrected, the manufacturer shall notify the administrator in the same manner of such correction. If the two events described in this subsection occur within 30 days of one another, both notices may be combined into the same notice.

(c) Upon the resale, either at wholesale or retail, lease, transfer of title, or other transfer of a motor vehicle with a nonconformity, other than a serious safety defect, which has not been corrected and which was previously returned after a final determination, adjudication, or settlement under this article or under a similar statute of any other state, the manufacturer shall execute and deliver to the transferee before transfer to a consumer an instrument in writing setting forth information identifying the nonconformity in a manner to be specified by the administrator; the transferor shall deliver the instrument to the consumer before transfer.

(d) Upon the resale, either at wholesale or retail, lease, transfer of title, or other transfer of a motor vehicle found to have a nonconformity under this article which has been corrected, the manufacturer shall warrant in writing on forms prescribed by the administrator upon the transfer that the nonconformity has been corrected, and the manufacturer, its agent, the new motor vehicle dealer, or other transferor shall execute and deliver to the transferee before transfer an instrument in writing setting forth information identifying the nonconformity and indicating in a manner to be specified by the administrator that it has been corrected and providing an express manufacturer's warranty on the vehicle regarding the nonconformity for 12 months or 12,000 miles, whichever occurs first.

(e) For purposes of this Code section, the term "settlement" includes an agreement entered into between the manufacturer and the consumer that occurs after the dispute has been submitted to an informal dispute resolution settlement mechanism or has been deemed eligible by the administrator for arbitration before a panel.

10-1-786

(a) As provided in Code Section 10-1-794, the administrator may establish a new motor vehicle arbitration panel or panels to settle disputes between consumers and manufacturers as provided in this article. The panels shall not be affiliated with any manufacturer or new motor vehicle dealer and shall have available the services of persons with automotive technical expertise to assist in resolving disputes under this article.

(b) The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for the uniform conduct of arbitrations by panels and by informal dispute resolution settlement mechanisms under this article, which rules may include, but not be limited to, the following:

(1) Procedures regarding presentation of oral and written testimony, witnesses and evidence relevant to the dispute, cross-examination of witnesses, and representation by counsel. The administrator shall provide by rule for oral hearings, when appropriate, in panel or informal dispute resolution settlement mechanism proceedings;

(2) Procedures for production of records and documents requested by a party which the panel finds are reasonably related to the dispute;

(3) Procedures for issuance of subpoenas on behalf of the panel by the administrator, which shall be enforced by the superior courts as in Code Section 10-1-398;

(4) Procedures regarding written affidavits from employees and agents of a dealer, a manufacturer, any party, or from other potential witnesses and the consideration of such affidavits by a panel; and

(5) Records of panel proceedings and hearings shall be open to the public.

(c) A consumer shall exhaust any certified informal dispute resolution settlement procedure under Code Section 10-1-793 and the new motor vehicle arbitration panel remedy before filing any superior court action pursuant to Code Section 10-1-788.

(d) The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," to implement this article. Such rules may include uniform standards by which the panel and any informal dispute resolution settlement mechanism under Code Section 10-1-793 shall make determinations under this article, including but not limited to rules which may provide for:

(1) Determining that a nonconformity exists;

(2) Determining that a reasonable number of attempts to repair a nonconformity have been undertaken; or

(3) Determining that a manufacturer has failed to comply with Code Section 10-1-784.

10-1-787

(a) A consumer shall request arbitration under this article by submitting a request in writing to the administrator. Except as otherwise provided in this article, disputes under the lemon law rights period shall be eligible for arbitration. The administrator shall make a reasonable determination of the eligibility of the request for arbitration and may provide necessary information to the consumer regarding the consumer's rights and remedies under this article. The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," regarding the eligibility of requests for arbitration. The administrator shall assign a dispute he deems eligible to a panel.

(b) Manufacturers shall submit to arbitration under this article if the consumer's dispute is deemed eligible for arbitration by the administrator and by the panel.

(c) The new motor vehicle arbitration panel may reject for arbitration any dispute that it determines to be frivolous, fraudulent, filed in bad faith, res judicata, or beyond its authority. Any dispute deemed by the panel to be ineligible for arbitration due to insufficient evidence may be reconsidered by the panel upon the submission of other information or documents regarding the dispute that would allegedly qualify for relief under this article. Following a second review, the panel may reject the dispute for arbitration if evidence is still clearly insufficient to qualify the dispute for relief under this article. The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," governing rejection of disputes by a panel. A decision to reject any dispute for arbitration shall be sent by certified mail, return receipt requested, to the consumer and the manufacturer.

(d) An arbitration panel shall award the remedies under Code Section 10-1-784 if it finds a nonconformity and that a reasonable number of attempts have been undertaken to correct the nonconformity. The panel may in its discretion award attorney's fees and technical or expert witness costs to a consumer.

(e) It is an affirmative defense to any claim under this article that:

(1) the alleged nonconformity does not substantially impair the use, value, or safety of the new motor vehicle to the consumer; or

(2) the alleged nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of the new motor vehicle.

(f) The panel's decision shall be sent by certified mail, return receipt requested, to the consumer. The consumer must reject the decision in writing by certified mail, return receipt requested, addressed to the panel within 30 days of receipt of the panel's decision, or he or she shall be deemed to have accepted the panel's decision. The panel shall immediately notify the manufacturer by certified mail, return receipt requested, whether the consumer has accepted, rejected, or has been deemed to have accepted.

(g) Upon receipt of the panel's notice, the manufacturer shall have 40 calendar days to comply with the arbitration panel decision or to file a petition of appeal in superior court. At the time the petition of appeal is filed, the manufacturer shall send, by certified mail, a conformed copy of such petition to the administrator.

(h) If, at the end of the 40 calendar day period, neither compliance with nor a petition to appeal the panel's decision has occurred, the administrator may impose a fine of up to $1,000.00 per day until compliance occurs or until a maximum penalty of double the value of the vehicle or $100,000.00, whichever is less, accrues. If the manufacturer can provide clear and convincing evidence either that any delay or failure was beyond its control, or that any delay was acceptable to the consumer, the fine shall not be imposed. If the manufacturer fails to provide such evidence or fails to pay the fine, the administrator may initiate proceedings against the manufacturer for failure to pay any accrued fine and may initiate proceedings on behalf of the state to require specific performance of an arbitration decision under this article. The administrator shall deposit any fines in the state treasury.

10-1-788

(a) After the manufacturer has received notice of the consumer's acceptance or rejection, the consumer or the manufacturer shall have 40 days to request a trial de novo of the arbitration decision in superior court.

(b) If the manufacturer appeals, the court may require the manufacturer to post security for the consumer's financial loss due to the passage of time for review.

(c) If the manufacturer appeals and the consumer prevails, recovery may include the monetary value of the award, collateral charges, continuing incidental costs, if any, and attorney's fees and costs.

10-1-789

(a) Effective July 1, 1990, a fee of $3.00 shall be collected by the new motor vehicle dealer from the consumer at completion of a sale or a lease of each new motor vehicle. The fee shall be forwarded quarterly to the Office of Planning and Budget for deposit in the new motor vehicle arbitration account created in the state treasury. The first quarterly payments are due and payable on October 1, 1990, and shall be mailed by the dealer not later than October 10; thereafter, all payments are due and payable the first of the month in each quarter and shall be mailed by the dealer not later than the tenth day of such month. Moneys in the account shall be used for the purposes of this article, subject to appropriation. Funds in the new motor vehicle arbitration account shall be transferred to the general treasury at the end of each fiscal year. One dollar of each fee collected shall be retained by the dealer to cover administrative costs.

(b) At the end of each fiscal year, the administrator shall prepare a report listing the annual revenue generated and the expenses incurred in implementing and operating the arbitration program under this chapter. The Office of Planning and Budget shall provide the administrator with the figures regarding revenue generated.

(c) It is the intent of the General Assembly that any consumer who, on or after July 1, 1990, but prior to January 1, 1991, pays or should have paid the fee designated in this Code section shall be entitled to utilize the remedies provided in Code Sections 10-1-786, 10-1-787, and 10-1-788 in addition to any other remedies which exist in law or in equity regarding defective automobiles, notwithstanding the effective dates of this article or the effective dates of any provisions of this article.

10-1-790

A violation of this article, or any failure of any person, including a manufacturer or its agents, to honor any express warranty, automotive or otherwise, issued by that person, regardless of whether or not such warranty was purchased as a separate item by the consumer and regardless of whether or not any dispute under the warranty is deemed eligible for arbitration under this article, shall constitute an unfair and deceptive act or practice and a consumer transaction under Part 2 of Article 15 of this chapter. In determining whether there is an unfair and deceptive act or practice under this Code section, the principles in this article regarding a reasonable number of attempts may serve as guidelines. All public and private remedies provided under Part 2 of Article 15 of this chapter shall be available to enforce this article, subject to the affirmative defenses provided in Code Section 10-1-787, and except as provided in Code Section 10-1-784.

10-1-791

Any agreement entered into by a consumer for the purchase of a new motor vehicle that waives, limits, or disclaims the rights set forth in this article shall be void as contrary to public policy. Said rights shall extend to a subsequent transferee of a new motor vehicle.

10-1-792

Nothing in this article shall limit anyone from pursuing other rights or remedies under any other law, except as otherwise provided in this article.

HAWAII STATE LEMON LAWS

2008-12-13T03:52:00.001-08:00

HAWAII STATE LEMON LAWS

Hawaii Lemon Law
Hawaii Revised Statutes งง481I-1 to 481I-4

481I-1 Legislative intent.

The legislature recognizes that a motor vehicle is a major consumer purchase and that a defective motor vehicle creates a hardship for the consumer. The legislature further recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the legislature that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time. It is further the intent of the legislature to provide statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which is not brought into conformity with the applicable express warranties, as provided in this chapter. Finally, it is the intent of the legislature to ensure that consumers are made aware of their rights under this chapter and are not refused the information, documents, or service necessary to exercise their rights.

Nothing in this chapter shall in any way limit or expand the rights or remedies which are otherwise available to a consumer under any other law.

481I-2 Definitions.

When used in this section unless the context otherwise requires:

"Business day" means any day during which the service departments of authorized dealers of the manufacturer of the motor vehicle are normally open for business.

"Collateral charges" means those additional charges to a consumer wholly incurred as a result of the acquisition of the motor vehicle. For the purposes of this chapter, collateral charges include, but are not limited to, manufacturer-installed or agent-installed items, general excise tax, license and registration fees, title charges, and similar government charges.

"Consumer" means the purchaser, other than for purposes of resale, or the lessee of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of the express warranty applicable to the motor vehicle, and any other person entitled to enforce the obligations of the express warranty.

"Express warranty" means any written warranty issued by the manufacturer, or any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale or lease of a motor vehicle to a consumer, which relates to the nature of the material or workmanship and affirms or promises that the motor vehicle shall conform to the affirmation, promise, or description or that the material or workmanship is free of defects or will meet a specified level of performance.

"Incidental charges" means those reasonable costs incurred by the consumer, including, but not limited to, towing charges and the costs of obtaining alternative transportation which are directly caused by the nonconformity or nonconformities which are the subject of the claim, but shall not include loss of use, loss of income, or personal injury claims.

"Lemon law rights period" means the term of the manufacturer's express warranty, the period ending two years after the date of the original delivery of a motor vehicle to a consumer, or the first 24,000 miles of operation, whichever occurs first.

"Lessee" means any consumer who leases a motor vehicle for one year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to such motor vehicle, or any consumer who leases a motor vehicle pursuant to a lease-purchase agreement.

"Motor vehicle" means a self-propelled vehicle primarily designed for the transportation of persons or property over public streets and highways which is used primarily for personal, family, or household purposes. For purposes of this definition, a "motor vehicle" also includes a "demonstrator", which means a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model or type, but does not include mopeds, motorcycles, or motor scooters, as those terms are defined in chapter 286, or vehicles over 10,000 pounds, gross vehicle weight rating. For purposes of this definition, a "motor vehicle" also includes (1) an individually registered vehicle used for an individual's business purposes and for personal, family, or household purposes; and (2) a vehicle owned or leased by a sole proprietorship, corporation or partnership which has purchased or leased no more than one vehicle per year, used for household, individual, or personal use in addition to business use.

"Nonconformity" means a defect, malfunction, or condition that fails to conform to the motor vehicle's applicable express warranty and that substantially impairs the use, market value, or safety of a motor vehicle, but does not include a defect, malfunction, or condition that results from an accident, abuse, neglect, modification, or alteration of the motor vehicle by persons other than the manufacturer, its agent, distributor, or authorized dealer.

"Purchase price" means the cash price appearing in the sales agreement or contract and paid for the motor vehicle, including any net allowance for a trade-in vehicle. Where the consumer is a second or subsequent purchaser and the arbitration award is for a refund of the motor vehicle, "purchase price" means the purchase price of the second or subsequent purchase not to exceed the purchase price paid by the original purchaser.

"Reasonable offset" for use means the number of miles attributable to a consumer up to the date of the third repair attempt of the same nonconformity which is the subject of the claim, the date of the first repair attempt of a nonconformity that is likely to cause death or serious bodily injury, or the date of the thirtieth (30th) cumulative business day when the vehicle is out of service by reason of repair of one or more nonconformities, whichever occurs first. The reasonable offset for use shall be equal to one percent of the purchase price for every thousand miles of use.

"Replacement motor vehicle" means a motor vehicle which is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of original acquisition, including any service contract, undercoating, rust proofing, and factory or dealer installed options. A reasonable offset shall be made for the use of the motor vehicle and an additional offset may be made for loss to the fair market value of the vehicle resulting from damage beyond normal wear and tear, unless the damage resulted from the nonconformity.

"Substantially impairs" means to render the motor vehicle unfit, unreliable, or unsafe for warranted or normal use, or to significantly diminish the value of the motor vehicle.

481I-3 Motor vehicle: express warranties, return.

(a) If a motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity in writing to the manufacturer, its agent, distributor, or its authorized dealer during the term of the lemon law rights period, then the manufacturer, or, at its option, its agent, distributor, or its authorized dealer, shall make such repairs as are necessary to conform the vehicle to such express warranties, notwithstanding the fact that such repairs are made after the expiration of such term.

(b) If the manufacturer, its agents, distributors, or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, market value, or safety of the motor vehicle after a reasonable number of documented attempts, then the manufacturer shall provide the consumer with a replacement motor vehicle or accept return of the vehicle from the consumer and refund to the consumer the following: the full purchase price including, but not limited to, charges for undercoating, dealer preparation, transportation and installed options, and all collateral and incidental charges, excluding finance and interest charges, and less a reasonable offset for the consumer's use of the motor vehicle. If either a replacement motor vehicle or a refund is awarded, an "offset" may be made for damage to the vehicle not attributable to normal wear and tear, if unrelated to the nonconformity. Refunds made pursuant to this subsection shall be deemed to be refunds of the sales price and treated as such for purposes of section 237-3. Refunds shall be made to the consumer and lien holder, if any, as their interests may appear on the records of ownership. If applicable, refunds shall be made to the lessor and lessee pursuant to rules adopted by the department of commerce and consumer affairs.

(c) It shall be an affirmative defense to any claim under this section that a nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of a motor vehicle by a consumer.

(d) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if, during the lemon law rights period, any of the following occurs:

(1) The same nonconformity has been subject to examination or repair at least three times by the manufacturer, its agents, distributors, or authorized dealers, but such nonconformity continues to exists; or

(2) The nonconformity has been subject to examination or repair at least once by the manufacturer, its agents, distributors, or authorized dealers, but continues to be a nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven; or

(3) The motor vehicle is out of service by reason of repair by the manufacturer, its agents, distributors, or authorized dealers for one or more nonconformities for a cumulative total of thirty or more business days during the lemon law rights period. The term of the lemon law rights period and such thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, fire, flood or other natural disaster. The presumptions provided in this subsection shall not apply unless the manufacturer has received a written report of the nonconformity from the consumer and has had a reasonable opportunity to repair the nonconformity alleged. Upon a second notice of the nonconformity, or, if the motor vehicle has been out of service by reason of repair in excess of twenty business days, the dealer shall notify the manufacturer of the nonconformity.

(e) During the lemon law rights period, the manufacturer or its agent, distributor, or authorized dealer shall provide to the consumer, each time the consumer's vehicle is returned from being diagnosed or repaired under the warranty, a fully itemized, legible statement or repair order indicating any diagnosis made and all work performed on the vehicle, including, but not limited to, a general description of the problem reported by the consumer or an identification of the defect or condition, parts and labor supplied, the date and the odometer reading when the vehicle was submitted for repair, and the date when the vehicle was made available to the consumer. The consumer shall sign and receive a copy of the statement or repair order.

(f) Upon request from the consumer, the manufacturer, or at its option its agent, distributor, or authorized dealer, shall provide a copy of any report or computer reading regarding inspection, diagnosis, or test-drive of the consumer's motor vehicle, and shall provide a copy of any technical service bulletin related to the nonconformity issued by the manufacturer regarding the year and model of the consumer's motor vehicle as it pertains to any material, feature, component, or the performance thereof. Upon receipt of a consumer's written report of a nonconformity to the manufacturer, the manufacturer or, at its option, its agent, distributor, or authorized dealer, shall inform the consumer of any technical service bulletin or report relating to the nonconformity, and shall advise the consumer of the consumer's right to obtain a copy of such report or technical service bulletin.

(g) The manufacturer, its agent, distributor, or authorized dealer, shall provide the consumer at the time of purchase of the motor vehicle a written notice setting forth the terms of a state certified arbitration program and a statement of the rights of the consumer under this section in plain language, the form of which has been previously reviewed and approved by the department of commerce and consumer affairs for substantial compliance with title 16, Code of Federal Regulations, part 703, as may be modified by the requirements of this chapter. The written notice must specify the requirement that written notification to the manufacturer of the motor vehicle nonconformity is required before the consumer is eligible for a refund or replacement of the motor vehicle. The notice must also include the name and address to which the consumer must send such written notification. The provision of this statement is the direct responsibility of the dealer, as that term is defined in chapter 437.

(h) The consumer shall be required to notify the manufacturer of the nonconformity only if the consumer has received a written notice setting forth the terms of the state certified arbitration program and a statement of the rights of the consumer as set out in subsection (g).

(i) Where the state certified arbitration program is invoked by the consumer of a motor vehicle under express warranties, a decision resolving the dispute shall be rendered within forty-five days after the procedure is invoked. If no decision is rendered within forty-five days as required by this subsection, the dispute shall be submitted to the regulated industries complaints office of the department of commerce and consumer affairs for investigation and hearing. Any decision rendered resolving the dispute shall provide appropriate remedies including, but not limited to, the following:

(1) Provision of a replacement motor vehicle; or

(2) Acceptance of the motor vehicle from the consumer, refund of the full purchase price, and all collateral and incidental charges. The decision shall specify a date for performance and completion of all awarded remedies.

(j) Any action brought under this section must be initiated within one year following expiration of the lemon law rights period.

(k) No vehicle transferred to a dealer or manufacturer by a buyer or a lessee under subsection (b) may be sold or leased by any person unless:

(1) The nature of the defect experienced by the original buyer or lessee is clearly and conspicuously disclosed on a separate document that must be signed by the manufacturer and the purchaser and must be in ten point, capitalized type, in substantially the following form: "IMPORTANT: THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE A DEFECT(S) COVERED BY THE MANUFACTURER'S EXPRESS WARRANTY WAS NOT REPAIRED WITHIN A REASONABLE TIME AS PROVIDED BY HAWAII LAW.";

(2) The defect is corrected; and

(3) The manufacturer warrants to the new buyer or lessee, in writing, that if the defect reappears within one year or 12,000 miles after the date of resale, whichever occurs first, it will be corrected at no expense to the consumer.

(l) A violation of subsection (k) shall constitute prima facie evidence of an unfair or deceptive act or practice under chapter 480.

481I-4 Arbitration mechanism.

(a) The department of commerce and consumer affairs shall establish and monitor a state certified arbitration program which is in substantial compliance with title 16, Code of Federal Regulations, part 703, as may be modified by this section, and shall adopt appropriate rules governing its operation.

(b) The director of commerce and consumer affairs may contract with an independent arbitration organization for annual term appointments to screen, hear, and resolve consumer complaints which have been initiated pursuant to section 481I-3. The following criteria shall be considered in evaluating the suitability of independent arbitration mechanisms: capability, objectivity, experience, non-affiliation with manufacturers of or dealers in new motor vehicles, reliability, financial stability, and fee structure.

(c) If a consumer agrees to participate in and be bound by the operation and decision of the state certified arbitration program, then all parties shall also participate in, and be bound by, the operation and decision of the state certified arbitration program. The prevailing party of an arbitration decision made pursuant to this section may be allowed reasonable attorney's fees.

(d) The submission of any dispute to arbitration in which the consumer elects non-binding arbitration shall not limit the right of any party to a subsequent trial de novo upon written demand made upon the opposing party to the arbitration within thirty calendar days after service of the arbitration award, and the award shall not be admissible as evidence at that trial. If the party demanding a trial de novo does not improve its position as a result of the trial by at least twenty-five per cent, then the court shall order that all of the reasonable costs of trial, consultation, and attorney's fees be paid for by the party making the demand. If neither party to a non-binding arbitration demands a trial de novo within thirty days after service of the arbitration award, the arbitrator's decision shall become binding on both parties upon the expiration of the thirty-day period.

(e) Funding of the state certified arbitration program shall be provided through an initial filing fee of $200 to be paid by the manufacturer and $50 to be paid by the consumer upon initiating a case for arbitration under this section. Every final decision in favor of the consumer issued by the independent arbitration mechanism shall include within its relief the return of the $50 filing fee to the consumer. The director of commerce and consumer affairs may establish a trust fund for the purpose of administering fees and costs associated with the state certified arbitration program.

(f) The failure of a manufacturer to timely comply with a binding decision of a state certified arbitration program shall be prima facie evidence of an unfair or deceptive act or practice under chapter 480 unless the manufacturer can prove that it attempted in "good faith" to comply, or that the failure was beyond the manufacturer's control, the result of a written agreement with the consumer, or based on an appeal filed under chapter 658.

IDAHO STATE LEMON LAWS

2008-12-13T03:51:00.000-08:00

IDAHO STATE LEMON LAWS

Idaho Lemon Law
Idaho Code, 48-901 to 48-913

48-901 Definitions.

For purposes of this chapter, the following terms have the following meanings:

(1) "Consumer" means the purchaser or lessee, other than for purposes of resale or sublease, of a new motor vehicle used for personal business use, personal, family or household purposes, or a person to whom the new motor vehicle is transferred for the same purposes during the duration of an express warranty applicable to the motor vehicle.

(2) "Early termination costs" means expenses and obligations incurred by a motor vehicle lessor as a result of an early termination of a written lease agreement and surrender of a motor vehicle to a manufacturer under section 48-904, Idaho Code, including penalties for prepayment of finance arrangements.

(3) "Informal dispute settlement mechanism" means an arbitration process or procedure by which the manufacturer attempts to resolve disputes with consumers regarding motor vehicle nonconformities and repairs that arise during the vehicle's warranty period.

(4) "Lease" means a contract in the form of a lease or bailment for the use of personal property by a natural person for a period of time exceeding four (4) months, used for personal business use, personal, family, or household purposes, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease.

(5) "Manufacturer" means a person engaged in the business of manufacturing, assembling or distributing motor vehicles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least ten (10) new motor vehicles.

(6) "Manufacturer's express warranty" and "warranty" mean the written warranty of the manufacturer of a new motor vehicle of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.

(7) "Motor vehicle" means a motor vehicle as defined in chapter 1, title 49, Idaho Code, which is sold or licensed in this state but does not include

(a) Motorcycle or farm tractor as defined in sections 49-107 and 49-114, Idaho Code; or

(b) Trailer as defined in section 49-121, Idaho Code; or

(8) "Motor vehicle lessor" means a person who holds title to a motor vehicle leased to a lessee under a written lease agreement or who holds the lessor's rights under such agreement.

48-902 Manufacturer's duty to repair - Service and Repair Facilities.

(1) If a new motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of the applicable express warranties or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer, or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, the manufacturer, its agent, or its authorized dealer shall make the repairs necessary to conform the vehicle to the applicable express warranties, notwithstanding the fact that the repairs are made after the expiration of the warranty term or the two (2) year period.

(2) Every manufacturer of motor vehicles sold and for which the manufacturer has made an express warranty shall maintain sufficient service and repair facilities reasonably close to all areas in which its motor vehicles are sold to carry out the terms of the warranties or designate and authorize as service and repair facilities independent repair or service facilities reasonably close to all areas in which its motor vehicles are sold to carry out the terms of the warranties. As a means of complying with the provisions of this subsection, a manufacturer may, in a town or city where there is not a franchise market representative, enter into warranty service contracts with independent service and repair facilities.

48-903 Manufacturer's duty to refund or replace.

(1) If the manufacturer, its agents, or its authorized dealers are unable to conform the new motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which impairs the use or market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall either replace the new motor vehicle with a comparable motor vehicle or accept return of the vehicle from the consumer and refund to the consumer the amount the consumer paid for the vehicle, inclusive of the value of any trade-in, not to exceed one hundred five percent (105%) of the manufacturer's suggested retail price of the motor vehicle. The manufacturer's suggested retail price shall include all manufacturer installed options. The one hundred five percent (105%) cap shall include the cost of any options or other modifications arranged, installed, or made by the manufacturer's agent, or its authorized dealer within thirty (30) days after the date of original delivery. The manufacturer shall refund to the consumer all other charges including, but not limited to, sales or excise tax, license fees and registration fees, reimbursement for towing and rental vehicle expenses incurred by the consumer as a result of the vehicle being out of service for warranty repair. A reasonable allowance for the consumer's use of the vehicle shall be deducted from the refund to the consumer not to exceed the number of miles attributable to the consumer up to the date of the arbitration hearing multiplied by the purchase price of the vehicle and divided by one hundred twenty thousand (120,000). If the manufacturer offers a replacement vehicle under this section, the consumer has the option of rejecting the replacement vehicle and requiring the manufacturer to provide a refund. Refunds must be made to the consumer, and lien holder, if any, as their interests appear on the records of the division of motor vehicles of the Idaho transportation department. A manufacturer must give to the consumer an itemized statement listing each of the amounts refunded under this section. If the amount of sales or excise tax refunded is not separately stated, or if the manufacturer does not apply for a refund of the tax within one (1) year of the return of the motor vehicle, the state tax commission may refund the tax, as determined under subsection (8) of this section, directly to the consumer and lien holder, if any, as their interests appear on the records of the division of motor vehicles. It is an affirmative defense to any claim under this chapter

(a) that an alleged nonconformity does not impair the use or market value, or

(b) that a nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of a motor vehicle by anyone other than the manufacturer, its agent or its authorized dealer.

(2) It is presumed that a reasonable number of attempts have been undertaken to conform a new motor vehicle to the applicable express warranties, if

(a) the same nonconformity has been subject to repair four (4) or more times by the manufacturer, its agents, or its authorized dealers within the applicable express warranty term or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, but the nonconformity continues to exist. However, the manufacturer shall have at least one (1) opportunity to attempt to repair the vehicle before it is presumed a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranty; or

(b) the vehicle is out of service by reason of repair for a cumulative total of thirty (30) or more business days during the term or during the period, whichever is the earlier date.

(3) If the nonconformity results in a complete failure of the braking or steering system of the new motor vehicle and is likely to cause death or serious bodily injury if the vehicle is driven, it is presumed that a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranties if the nonconformity has been subject to repair at least once by the manufacturer, its agents, or its authorized dealers within the applicable express warranty term or during the period of two (2) years following the date of original delivery of the new motor vehicle to a consumer or during the period ending with the date on which the mileage on the motor vehicle reaches twenty-four thousand (24,000) miles, whichever is the earliest date, and the nonconformity continues to exist. However, the manufacturer shall have at least one (1) opportunity to attempt to repair the vehicle before it is presumed a reasonable number of attempts have been undertaken to conform the vehicle to the applicable express warranty.

(4) The term of an applicable express warranty, the two (2) year period and the thirty (30) day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, or fire, flood, or other natural disaster.

(5) The presumption contained in subsection (2) of this section applies against a manufacturer only if the manufacturer, its agent, or its authorized dealer has received prior written notification from or on behalf of the consumer at least once and an opportunity to cure the defect alleged. If the notification is received by the manufacturer's agent or authorized dealer, the agent or dealer must forward it to the manufacturer by certified mail, return receipt requested. However, if the manufacturer is not notified either by the consumer or the manufacturer's agent or authorized dealer, then the manufacturer shall have at least one (1) opportunity to cure the alleged defect.

(6) The expiration of the time periods set forth in subsection (2) of this section does not bar a consumer from receiving a refund or replacement vehicle under subsection (1) of this section if the reasonable number of attempts to correct the nonconformity causing the substantial impairment occur within three (3) years following the date of original delivery of the new motor vehicle to a consumer, provided the consumer first reported the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of the applicable express warranty.

(7) The manufacturer shall provide to its agent or authorized dealer and, at the time of purchase or lease, the manufacturer's agent or authorized dealer shall provide a written statement to the consumer in the new motor vehicle warranty guide, in 10-point all capital type, in substantially the following form:

"IMPORTANT IF THIS VEHICLE IS DEFECTIVE, YOU MAY BE ENTITLED UNDER THE STATE'S LEMON LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE OR YOUR LEASE PAYMENTS. HOWEVER, TO BE ENTITLED TO REFUND OR REPLACEMENT, YOU MUST FIRST NOTIFY THE MANUFACTURER, ITS AGENT, OR ITS AUTHORIZED DEALER OF THE PROBLEM IN WRITING AND GIVE THEM AN OPPORTUNITY TO REPAIR THE VEHICLE. YOU ALSO HAVE A RIGHT TO SUBMIT YOUR CASE TO THE CONSUMER ARBITRATION PROGRAM WHICH THE MANUFACTURER MUST OFFER IN THIS STATE."

(8) The amount of the sales or excise tax to be paid by the manufacturer to the consumer under subsection (1) of this section shall be the tax paid by the consumer when the vehicle was purchased less an amount equal to the tax paid multiplied by a fraction, the denominator of which is the purchase price of the vehicle and the numerator of which is the allowance deducted from the refund for the consumer's use of the vehicle.

48-904 Manufacturer's duty to consumers with leased vehicles.

A consumer who leases a new motor vehicle has the same rights against the manufacturer under this section as a consumer who purchases a new motor vehicle, except that, if it is determined that the manufacturer must accept return of the consumer's leased vehicle pursuant to section 48-903, Idaho Code, then the consumer lessee is not entitled to a replacement vehicle, but is entitled only to a refund as provided in this section. In such a case, the consumer's leased vehicle shall be returned to the manufacturer and the consumer's written lease with the motor vehicle lessor must be terminated after all charges are settled. The manufacturer shall provide the consumer with a full refund of all costs and charges described below less a reasonable allowance for use. The manufacturer shall provide to the consumer a refund of the pro rata amount of any down payment paid by the consumer on the written lease. The pro rata amount of such a refund shall be the amount of the down payment divided by the number of months of the lease agreement and that amount multiplied by the number of months remaining after the date of the arbitration. The manufacturer shall also refund to the consumer amounts identified as additional charges set forth in section 48-903, Idaho Code, if actually paid by the consumer. The reasonable allowance for use shall be the lease payments made by the consumer until the time of the award of a refund. The manufacturer shall provide the motor vehicle lessor or its assignee with a full refund of the early termination charges plus the residual value of the vehicle, as specified in the lease agreement. The amount of any refund by the manufacturer to the consumer for the pro rata portion of the down payment plus the amount of the refund to the motor vehicle lessor or its assignee by the manufacturer shall not exceed one hundred five percent (105%) of the vehicle's original manufacturer's suggested retail price.

48-905 Resale or re-lease of returned motor vehicle.

(1) If a motor vehicle has been returned under the provisions of section 48-903, Idaho Code, or a similar statute of another state, whether as the result of a legal action or as the result of an informal dispute settlement proceeding, it may not be resold or re-leased in this state unless:

(a) The manufacturer provides the same express warranty it provided to the original purchaser, except that the term of the warranty need only last for twelve thousand (12,000) miles or twelve (12) months after the date of resale, whichever is earlier; and

(b) The manufacturer provides the consumer with a written statement on a separate piece of paper, in 10-point all capital type, in substantially the following form "IMPORTANT THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO THE MANUFACTURER'S EXPRESS WARRANTY AND THE NONCONFORMITY WAS NOT CURED WITHIN A REASONABLE TIME AS PROVIDED BY IDAHO LAW."

The provisions of this chapter apply to the resold or re-leased motor vehicle for full term of the warranty required under this section. If a manufacturer has a program similar to the requirements of this subsection and that program provides, at a minimum, substantially the same protections for subsequent consumers, then the manufacturer shall be considered to be in compliance with this subsection.

(2) Notwithstanding the provisions of subsection (1) of this section, if a new motor vehicle has been returned under the provisions of section 48-903, Idaho Code, or a similar statute of another state because of a nonconformity resulting in a complete failure of the braking or steering system of the motor vehicle likely to cause death or serious bodily injury if the vehicle was driven and the failure has not been repaired by the manufacturer, its agent or its authorized dealer, the motor vehicle may not be resold in this state.

48-906 Alternative dispute settlement mechanism.

(1) Any manufacturer doing business in this state, entering into franchise agreements for the sale of its motor vehicles in this state, or offering express warranties on its motor vehicles sold or distributed for sale in this state shall operate, or participate in, an informal dispute settlement mechanism located in the state of Idaho which complies with the provisions of title 16, code of federal regulations, part 703, and the requirements of this section. The provisions of section 48-903, Idaho Code, concerning refunds or replacement do not apply to a consumer who has not first used this mechanism before commencing a civil action, unless the manufacturer allows a consumer to commence an action without first using this mechanism.

(2) An informal dispute settlement mechanism provided for by this chapter shall, at the time a request for arbitration is made, provide to the consumer and to each person who will arbitrate the consumer's dispute, information about this chapter as approved and directed by the attorney general, in consultation with interested parties. The informal dispute settlement mechanism shall permit the parties to present or submit any arguments based on this chapter and shall not prohibit or discourage the consideration of any such arguments.

(3) If, in an informal dispute settlement mechanism, it is decided that a consumer is entitled to a replacement vehicle or refund under section 48-903, Idaho Code, then any refund or replacement offered by the manufacturer or selected by a consumer shall include and itemize all amounts authorized by section 48-903, Idaho Code. If the amount of excise tax refunded is not separately stated, or if the manufacturer does not apply for a refund of the tax within one (1) year of the return of the motor vehicle, the state tax commission may refund the sales tax, as determined under subsection (8) of section 48-903, Idaho Code, directly to the consumer and lien holder, if any, as their interests appear on the records of the division of motor vehicles of the Idaho transportation department.

(4) No documents shall be received by any informal dispute settlement mechanism unless those documents have been provided to each of the parties in the dispute at or prior to the mechanism's meeting, with an opportunity for the parties to comment on the documents either in writing or orally. If a consumer is present during the informal dispute settlement mechanism's meeting, the consumer may request postponement of the mechanism's meeting to allow sufficient time to review any documents presented at the time of the meeting which had not been presented to the consumer prior to the meeting.

(5) The informal dispute settlement mechanism shall allow each party to appear and make an oral presentation in the state of Idaho unless the consumer agrees to submit the dispute for decision on the basis of documents alone or by telephone, or unless the party fails to appear for an oral presentation after reasonable prior written notice. However, the manufacturer or its representative may participate in the informal dispute settlement mechanism's meeting by telephone if it chooses. If the consumer agrees to submit the dispute for decision on the basis of documents alone, then manufacturer or dealer representatives may not participate in the discussion or decision of the dispute.

(6) Consumers shall be given an adequate opportunity to contest a manufacturer's assertion that a nonconformity falls within intended specifications for the vehicle by having the basis of the manufacturer's claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement hearing.

(7) Where there has been a recent attempt by the manufacturer to repair a consumer's vehicle, but no response has yet been received by the informal dispute mechanism from the consumer as to whether the repairs were successfully completed, the parties must be given the opportunity to present any additional information regarding the manufacturer's recent repair attempt before any final decision is rendered by the informal dispute settlement mechanism. This provision shall not prejudice a consumer's rights under this chapter.

(8) If the manufacturer knows that a technical service bulletin directly applies to the specific mechanical problem being disputed by the consumer, then the manufacturer shall provide the technical service bulletin to the consumer at reasonable cost upon request. The mechanism shall review any such technical service bulletins submitted by either party.

(9) A consumer may be charged a fee to participate in an informal dispute settlement mechanism required by this chapter, but the fee may not exceed the conciliation court filing fee in the county where the arbitration is conducted.

(10) Any party to the dispute has the right to be represented by an attorney in an informal dispute settlement mechanism.

(11) The informal dispute settlement mechanism has all the evidence-gathering powers granted an arbitrator under the uniform arbitration act.

(12) A decision issued in an informal dispute settlement mechanism required by this section may be in writing and signed.

48-907 Effect and admissibility of decision by informal dispute settlement mechanism.

The decision issued in an informal dispute settlement mechanism required by this chapter is non-binding on the parties involved, unless otherwise agreed by the parties. Any party, upon application, may remove the decision to district court for a trial de novo. If the manufacturer is aggrieved by the decision of the informal dispute settlement mechanism, an application to remove the decision must be filed in the district court within thirty (30) days after the date the decision is received by the parties. If the application to remove is not made within thirty (30) days, then the district court shall, upon application of a party, issue an order confirming the decision. A written decision issued by an informal dispute settlement mechanism, and any written findings upon which the decision is based, are admissible as non-binding evidence in any subsequent legal action and are not subject to further foundation requirements.

48-908 Treble damages for bad faith appeal of decision.

If the district court finds that a party has removed a decision of an informal dispute settlement mechanism in bad faith, by asserting a claim or defense that is frivolous and costly to the other party, or by asserting an unfounded position solely to delay recovery by the other party, then the court shall award to the prevailing party three (3) times the actual damages sustained, together with costs and attorney's fees.

48-909 Civil remedy.

Any consumer injured by a violation of this chapter may bring a civil action to enforce this chapter and recover costs and disbursements, including reasonable attorney's fees incurred in the civil action. However, the provisions of this section do not include recovery of attorney's fees previously incurred in the course of informal dispute resolution. In addition to the remedies provided herein, the attorney general may, when in the public interest, bring an action pursuant to the Idaho consumer protection act, chapter 6, title 48, Idaho Code, against any manufacturer for violation of this chapter. For purposes of such action, violations of this chapter shall be deemed to be violations of Idaho's consumer protection act. In any such action, the attorney general and district court shall have the same authority as is granted the attorney general and district court under the Idaho consumer protection act.

48-910 Limitations on actions.

A civil action brought under this chapter must be commenced within three (3) years of the date of original delivery of the new motor vehicle to a consumer, except that if the consumer applies to an informal dispute settlement mechanism within three (3) years of the date of original delivery of the new motor vehicle to a consumer, and if the consumer is aggrieved by the decision of the informal dispute settlement mechanism, then any appeal of that decision brought under this chapter must be commenced within three (3) months after the date of the final decision by the mechanism.

48-911 Remedy nonexclusive.

Nothing in this chapter limits the rights or remedies which are otherwise available to a consumer under any other law.

48-912 Disclosure requirement.

In addition to any investigative powers authorized by law, the attorney general may inspect the records of the informal dispute settlement mechanism upon reasonable notice, during regular business hours, and may make available to the public information about the operation of the mechanism, but data on an individual case may not be disclosed without the prior consent of the affected parties.

48-913 Dealer liability.

Nothing in this chapter imposes liability on a dealer or creates an additional cause of action by a consumer against a dealer, except for written express warranties made by the dealer apart from the manufacturer's warranties. The manufacturer shall not charge back or require reimbursement by the dealer for any costs, including, but not limited to, any refunds or vehicle replacements, incurred by the manufacturer arising out of this chapter, unless there is evidence that the related repairs had not been carried out by the dealer in a timely manner or in a manner substantially consistent with the manufacturer's published instructions.

ILLINOIS STATE LEMON LAWS

2008-12-13T03:50:00.000-08:00

ILLINOIS STATE LEMON LAWS

Illinois Lemon Law
Illinois Compiled Statutes Annotated, Chapter 815 งง 380.1 to 380.8

815.380.1

This Act shall be known and may be cited as the New Vehicle Buyer Protection Act.

815.380.2 Definitions.

For the purposes of this Act, the following words have the meanings ascribed to them in this Section.

(a) "Consumer" means an individual who purchases or leases for a period of at least one year a new vehicle from the seller for the purposes of transporting himself and others, as well as their personal property, for primarily personal, household or family purposes.

(b) "Express warranty" has the same meaning, for the purposes of this Act, as it has for the purposes of the Uniform Commercial Code.

(c) "New vehicle" means a passenger car, as defined in Section 1-157 of The Illinois Vehicle Code, a motor vehicle of the Second Division having a weight of under 8,000 pounds, as defined in Section 1-146 of that Code, and a recreational vehicle, except for a camping trailer or travel trailer that does not qualify under the definition of a used motor vehicle, as set forth in Section 1-216 of that Code.

(d) "Nonconformity" refers to a new vehicle's failure to conform to all express warranties applicable to such vehicle, which failure substantially impairs the use, market value or safety of that vehicle.

(e) "Seller" means the manufacturer of a new vehicle, that manufacturer's agent or distributor or that manufacturer's authorized dealer. "Seller" also means, with respect to a new vehicle which is also a modified vehicle, as defined in Section 1-144.1 of The Illinois Vehicle Code, as now or hereafter amended, the person who modified the vehicle and that person's agent or distributor or that person's authorized dealer. "Seller" also means, with respect to leased new vehicles, the manufacturer, that manufacturer's agent or distributor or that manufacturer's dealer, who transfers the right to possession and use of goods under a lease.

(f) "Statutory warranty period" means the period of one year or 12,000 miles, whichever occurs first after the date of the delivery of a new vehicle to the consumer who purchased or leased it.

(g) "Lease cost" includes deposits, fees, taxes, down payments, periodic payments, and any other amount paid to a seller by a consumer in connection with the lease of a new vehicle.

815.380.3 Failure of vehicle to conform; remedies; presumptions.

(a) If after a reasonable number of attempts the seller is unable to conform the new vehicle to any of its applicable express warranties, the manufacturer shall either provide the consumer with a new vehicle of like model line, if available, or otherwise a comparable motor vehicle as a replacement, or accept the return of the vehicle from the consumer and refund to the consumer the full purchase price or lease cost of the new vehicle, including all collateral charges, less a reasonable allowance for consumer use of the vehicle. For purposes of this Section, "collateral charges" does not include taxes paid by the purchaser on the initial purchase of the new vehicle. The retailer who initially sold the vehicle may file a claim for credit for taxes paid pursuant to the terms of Sections 6, 6a, 6b, and 6c of the Retailers' Occupation Tax Act. Should the vehicle be converted, modified or altered in a way other than the manufacturer's original design, the party which performed the conversion or modification shall be liable under the provisions of this Act, provided the part or parts causing the vehicle not to perform according to its warranty were altered or modified.

(b) A presumption that a reasonable number of attempts have been undertaken to conform a new vehicle to its express warranties shall arise where, within the statutory warranty period,

(1) the same nonconformity has been subject to repair by the seller, its agents or authorized dealers during the statutory warranty period, 4 or more times, and such nonconformity continues to exist; or

(2) the vehicle has been out of service by reason of repair of nonconformities for a total of 30 or more business days during the statutory warranty period.

(c) A reasonable allowance for consumer use of a vehicle is that amount directly attributable to the wear and tear incurred by the new vehicle as a result of its having been used prior to the first report of a nonconformity to the seller, and during any subsequent period in which it is not out of service by reason of repair.

(d) The fact that a new vehicle's failure to conform to an express warranty is the result of abuse, neglect or unauthorized modifications or alterations is an affirmative defense to claims brought under this Act.

(e) The statutory warranty period of a new vehicle shall be suspended for any period of time during which repair services are not available to the consumer because of a war, invasion or strike, or a fire, flood or other natural disaster.

(f) Refunds made pursuant to this Act shall be made to the consumer, and lien holder if any exists, as their respective interests appear.

(g) For the purposes of this Act, a manufacturer sells a new vehicle to a consumer when he provides that consumer with a replacement vehicle pursuant to subsection (a).

(h) In no event shall the presumption herein provided apply against a manufacturer, his agent, distributor or dealer unless the manufacturer has received prior direct written notification from or on behalf of the consumer, and has an opportunity to correct the alleged defect.

815.380.4

(a) The provisions of subsection (a) of Section 3 shall not apply unless the consumer has first resorted to an informal settlement procedure applicable to disputes to which that subsection would apply where

(1) The manufacturer of the new vehicle has established such a procedure;

(2) The procedure conforms:

(i) substantially with the provisions of Title 16, Code of Federal Regulation, Part 703, as from time to time amended, and

(ii) to the requirements of subsection (c); and

(3) The consumer has received from the seller adequate written notice of the existence of the procedure. Adequate written notice includes but is not limited to the incorporation of the informal dispute settlement procedure into the terms of the written warranty to which the vehicle does not conform.

(b) If the consumer is dissatisfied with the decision reached in an informal dispute settlement procedure or the results of such a decision, he may bring a civil action to enforce his rights under subsection (a) of Section 3. The decision reached in the informal dispute settlement procedure is admissible in such a civil action. The period of limitations for a civil action to enforce a consumer's rights or remedies under subsection (a) of Section 3 shall be extended for a period equal to the number of days the subject matter of the civil action was pending in the informal dispute settlement procedure.

(c) A disclosure of the decision in an informal dispute settlement procedure shall include notice to the consumer of the provisions of subsection (b).

815.380.5

Persons electing to proceed and settle under this Act shall be barred from a separate cause of action under the Uniform Commercial Code.

815.380.6

Any action brought under this Act shall be commenced within eighteen months following the date of original delivery of the motor vehicle to the consumer.

815.380.7

The seller who sells a new vehicle to a consumer, shall, upon delivery of that vehicle to the consumer, provide the consumer with a written statement clearly and conspicuously setting forth in full detail the consumer's rights under subsection (a) of Section 3, and the presumptions created by subsection (b) of that Section.

815.380.8

This Act shall apply to motor vehicles beginning with the model year following the effective date of this Act.

INDIANA STATE LEMON LAWS

2008-12-13T03:49:00.000-08:00

INDIANA STATE LEMON LAWS

Indiana Lemon Law
Indiana Code ง 24-5-13-1 to ง 24-5-13.5-14

24-5-13-1

This chapter applies to all motor vehicles that are sold, leased, transferred, or replaced by a dealer or manufacturer in Indiana.

24-5-13-2

As used in this chapter, "business day" means a day other than Sunday or a legal holiday (as defined in IC 1-1-9-1).

24-5-13-3

As used in this chapter, "buyer" means any person who, for purposes other than resale or sublease, enters into an agreement or contract within Indiana for the transfer, lease, or purchase of a motor vehicle covered under this chapter.

24-5-13-3.4

As used in this chapter, "lease" means a contract in the form of a lease or bailment for the use of a motor vehicle by a person for more than four (4) months, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease.

24-5-13-3.7

As used in this chapter, "lessor" means a person who:

(

1) holds title to a motor vehicle leased to a lessee under a written lease agreement; or

(2) holds the lessor's rights under an agreement described in subdivision (1).

24-5-13-4

As used in this chapter, "manufacturer" means any person who is engaged in the business of manufacturing motor vehicles, or, in the case of motor vehicles not manufactured in the United States, any person who is engaged in the business of importing motor vehicles.

24-5-13-5

As used in this chapter, "motor vehicle" or "vehicle" means any self-propelled vehicle that:

(1) has a declared gross vehicle weight of less than ten thousand (10,000) pounds;

(2) is sold to:

(A) a buyer in Indiana and registered in Indiana; or

(B) a buyer in Indiana who is not an Indiana resident (as defined in IC 9-13-2-78);

(3) is intended primarily for use and operation on public highways; and

(4) is required to be registered or licensed before use or operation.

The term does not include conversion vans, motor homes, farm tractors, and other machines used in the actual production, harvesting, and care of farm products, road building equipment, truck tractors, road tractors, motorcycles, mopeds, snowmobiles, or vehicles designed primarily for off road use.

24-5-13-6

As used in this chapter, "nonconformity" means any specific or generic defect or condition or any concurrent combination of defects or conditions that:

(1) substantially impairs the use, market value, or safety of a motor vehicle; or

(2) renders the motor vehicle nonconforming to the terms of an applicable manufacturer's warranty.

24-5-13-7

As used in this chapter, "term of protection" means a period of time that:

(1) begins:

(A) on the date of original delivery of a motor vehicle to a buyer; or

(B) in the case of a replacement vehicle provided by a manufacturer to a buyer under this chapter, on the date of delivery of the replacement vehicle to the buyer; and

(2) ends the earlier of:

(A) eighteen (18) months after the date identified under subdivision (1); or

(B) the time the motor vehicle has been driven eighteen thousand (18,000) miles after the date identified under subdivision (1).

24-5-13-8

If a motor vehicle suffers from a nonconformity and the buyer reports the nonconformity within the term of protection to the manufacturer of the vehicle, its agent, or its authorized dealer then the manufacturer of the motor vehicle or the manufacturer's agent or authorized dealer shall make the repairs that are necessary to correct the nonconformity, even if the repairs are made after expiration of the term of protection.

24-5-13-9

(a) A buyer must first notify the manufacturer of a claim under this chapter if the manufacturer has made the disclosure required by subsection (b). However, if the manufacturer has not made the required disclosure, the buyer is not required to notify the manufacturer of a claim under this chapter.

(b) The manufacturer shall clearly and conspicuously disclose to the buyer, in the warranty or owner's manual, that written notification of the nonconformity is required before the buyer may be eligible for a refund or replacement of the vehicle. The manufacturer shall include with the warranty or owner's manual the name and address to which the buyer must send notification.

24-5-13-10

If, after a reasonable number of attempts, the manufacturer, its agent, or authorized dealer is unable to correct the nonconformity, the manufacturer shall accept the return of the vehicle from the buyer and, at the buyer's option, either, within thirty (30) days, refund the amount paid by the buyer or provide a replacement vehicle of comparable value.

24-5-13-11

(a) If a refund is tendered under this chapter with respect to a vehicle that is not a leased vehicle, the refund must be the full contract price of the vehicle, including all credits and allowances for any trade-in vehicle and less a reasonable allowance for use.

(b) To determine a reasonable allowance for use under this section, multiply:

(1) the total contract price of the vehicle; by

(2) a fraction having as its denominator one hundred thousand (100,000) and having as its numerator the number of miles that the vehicle traveled before the manufacturer's acceptance of its return.

(1) All sales tax.

(2) The unexpended portion of the registration fee and excise tax that has been prepaid for any calendar year.

(3) All finance charges actually expended.

(4) The cost of all options added by the authorized dealer.

(d) Refunds made under this section shall be made to the buyer and lien holder, if any, as their respective interests appear on the records of ownership.

24-5-13-11.5

(a) If a refund is tendered under this chapter with respect to a leased motor vehicle, the refund shall be made as follows:

(1) The lessee shall receive all deposit and lease payments paid by the lessee to the lessor, including all credits and allowances for any trade-in vehicles, less a reasonable allowance for use.

(2) The lessor shall receive:

(A) the lessor's purchase cost, including freight and accessories;

(B) any fee paid to another to obtain the lease;

(D) sales tax paid by the lessor; and

(E) five percent (5%) of the amount described in subdivision (2)(A);

less the total of all deposit and lease payments paid by the lessee to the lessor, including all credits and allowances for any trade-in vehicle.

(b) To determine a reasonable allowance for use under this section, multiply:

(1) the total lease obligation of the lessee at the inception of the lease; by

(2) a fraction having as its denominator one hundred thousand (100,000) and as its numerator the number of miles that the vehicle traveled before the lessor's acceptance of its return.

24-5-13-12

(a) If a vehicle is replaced by a manufacturer under this chapter, the manufacturer shall reimburse the buyer for any fees for the transfer of registration or any sales tax incurred by the buyer as a result of replacement.

(b) If a replaced vehicle was financed by the manufacturer, its subsidiary, or agent, the manufacturer, subsidiary, or agent may not require the buyer to enter into any refinancing agreement concerning a replacement vehicle that would create any financial obligations upon the buyer less favorable than those of the original financing agreement.

24-5-13-13

Whenever a vehicle is replaced or refunded under this chapter, the manufacturer shall reimburse the buyer for necessary towing and rental costs actually incurred as a direct result of the nonconformity.

24-5-13-14

A buyer has the option of retaining the use of any vehicle returned under this chapter until the time that the buyer has been tendered a full refund or replacement vehicle of comparable value. The use of any vehicle retained by a buyer after its return to a manufacturer under this chapter must, in cases in which a refund is tendered, be reflected in the reasonable allowance for use required by section 11 of this chapter.

24-5-13-15

(a) A reasonable number of attempts is considered to have been undertaken to correct a nonconformity if:

(1) the nonconformity has been subject to repair at least four (4) times by the manufacturer or its agents or authorized dealers, but the nonconformity continues to exist; or

(2) the vehicle is out of service by reason of repair of any nonconformity for a cumulative total of at least thirty (30) business days, and the nonconformity continues to exist.

(b) The thirty (30) business day period in subsection (a)(2) shall be extended by any period of time during which repair services are not available as a direct result of a strike. The manufacturer, its agent, or authorized dealer shall provide or make provision for the free use of a vehicle to any buyer whose vehicle is out of service by reason of repair during a strike.

(c) The burden is on the manufacturer to show that the reason for an extension under subsection (b) was the direct cause for the failure of the manufacturer, its agent, or authorized dealer to cure any nonconformity during the time of the event.

24-5-13-16

(a) A manufacturer, its agent, or authorized dealer may not refuse to diagnose or repair any vehicle for the purpose of avoiding liability under this chapter.

(b) A manufacturer, its agent, or authorized dealer shall provide a buyer with a written repair order each time the buyer's vehicle is brought in for examination or repair. The repair order must indicate all work performed on the vehicle including examination of the vehicle, parts, and labor.

24-5-13-18

It is an affirmative defense to any claim under this chapter that:

(1) the nonconformity, defect, or condition does not substantially impair the use, value, or safety of the motor vehicle; or

(2) the nonconformity, defect, or condition is the result of abuse, neglect, or unauthorized modification or alteration of the motor vehicle by the buyer.

24-5-13-19

This chapter does not apply to any buyer who has not first resorted to an informal procedure established by a manufacturer or in which a manufacturer participates if:

(1) the procedure is certified by the attorney general as:

(A) complying in all respects with 16 C.F.R. 703; and

(B) complying with any other rules concerning certification adopted by the attorney general, including but not limited to the requirement of oral hearings, pursuant to IC 4-22-2; and

(2) the buyer has received adequate written notice from the manufacturer of the existence of the procedure.

Adequate written notice includes the incorporation of the informal dispute settlement procedure into the terms of the written warranty to which the motor vehicle does not conform.

24-5-13-20

This chapter does not limit the rights or remedies that are otherwise available to a buyer under any other applicable provision of law.

24-5-13-21

A buyer may bring a civil action to enforce this chapter in any circuit or superior court.

24-5-13-22

A buyer who prevails in any action brought under this chapter is entitled to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses, including attorney's fees based on actual time expended by the attorney, determined by the court to have been reasonably incurred by the buyer for or in connection with the commencement and prosecution of the action.

24-5-13-23

(a) An action brought under this chapter must be commenced within two (2) years following the date the buyer first reports the nonconformity to the manufacturer, its agent, or authorized dealer.

(b) When the buyer has commenced an informal dispute settlement procedure described in section 19 of this chapter, the two (2) year period specified in subsection (a) is tolled during the time the informal dispute settlement procedure is being conducted.

24-5-13-24

Nothing in this chapter imposes any liability on a dealer or creates a cause of action by a consumer against a dealer, and a manufacturer may not, directly or indirectly, expose any franchised dealer to liability under this chapter.

24-5-13.5-1

This chapter applies to all motor vehicles that are sold, leased, transferred, or replaced by a dealer or manufacturer in Indiana

24-5-13.5-2

As used in this chapter, "bureau" refers to the bureau of motor vehicles created by IC 9-14-1-1.

24-5-13.5-3

As used in this chapter, "buyback vehicle" means a motor vehicle that has been replaced or repurchased by a manufacturer or a nonresident manufacturer's agent or an authorized dealer, either under this chapter or IC 24-5-13 by judgment, decree, arbitration award, settlement agreement, or voluntary agreement in Indiana or another state, but does not include a motor vehicle that was repurchased pursuant to a guaranteed repurchase or satisfaction program advertised by the manufacturer and was not alleged or found to have a nonconformity as defined in IC 24-5-13-6.

24-5-13.5-4

As used in this chapter, "buyer" means a person who, for purposes other than resale or sublease, enters into an agreement or a contract within Indiana for the transfer, lease, or purchase of a buyback vehicle.

24-5-13.5-5

As used in this chapter, "dealer" means a person engaged in the business of buying, selling, leasing, or exchanging motor vehicles. A person is a "dealer" under this section if the person sells, leases, or advertises the sale or lease of more than four (4) motor vehicles within a twelve (12) month period.

24-5-13.5-6

As used in this chapter, "manufacturer" has the meaning set forth in IC 24-5-13-4.

24-5-13.5-7

As used in this chapter, "motor vehicle" has the meaning set forth in IC 24-5-13-5.

24-5-13.5-8

As used in this chapter, "nonconformity" has the meaning set forth in IC 24-5-13-6.

24-5-13.5-9

As used in this chapter, "warranty" means:

(1) a written warranty issued by the manufacturer; or

(2) an affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer;

in connection with the sale or lease of a motor vehicle to a consumer that relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

24-5-13.5-10

A buyback motor vehicle may not be resold in Indiana unless the following conditions have been met:

(2) The following disclosure language must be conspicuously contained in a contract for the sale or lease of a buyback vehicle to a consumer or contained in a form affixed to the contract:

IMPORTANT

This vehle was previously sold as new. It was subsequently returned to the manufacturer or authorized dealer in exchange for a replacement vehle or a refund because it did not conform to the manufacturer's express warranty and the nonconformity was not cured within a reasonable time as provided by Indiana law.

(3) The manufacturer provides the dealer a separate document with a written statement identifying the vehicle conditions that formed the basis for the previous owner's or lessee's dissatisfaction and the steps taken to deal with that dissatisfaction in 10-point all capital type.

24-5-13.5-11

Before reselling a buyback motor vehicle in Indiana, a dealer must provide to the buyer the express warranty required by section 10(1) of this chapter and the written statement of disclosure required by section 10(3) of this chapter and obtain the buyer's acknowledgment of this disclosure at the time of sale or lease as evidenced by the buyer's signature on the statement of disclosure.

24-5-13.5-12

A manufacturer who accepts return of a motor vehicle that is considered a buyback vehicle under this chapter shall do the following:

(1) Before transferring ownership of the buyback vehicle, stamp the words "Manufacturer Buyback A Disclosure on File" on the face of the original certificate of title.

(2) Not more than thirty-one (31) days after receipt of the certificate of title, apply to the bureau for a certificate of title in the name of the manufacturer and provide to the bureau a copy of the disclosure document required by section 10(3) of this chapter.

24-5-13.5-13

(a) A person who fails to comply with section 10, 11, or 12 of this chapter is liable for the following:

(1) Actual damages or the value of the consideration, at the election of the buyer.

(2) The costs of an action to recover damages and reasonable attorney's fees.

(3) Not more than three (3) times the value of the actual damages or the consideration as exemplary damages.

(4) Other equitable relief, including restitution, as is considered proper in addition to damages and costs.

(b) Actual damages under this section include the following:

(1) The difference between the actual market value of the vehicle at the time of purchase and the contract price of the vehicle.

(2) Towing, repair, and storage expenses.

(3) Rental of substitute transportation.

(4) Food and lodging expenses.

(5) Lost wages.

(6) Finance charges.

(7) Sales or use tax or other governmental fees.

(8) Lease charges.

(9) Other incidental and consequential damages.

(d) This subsection does not apply to consent orders or stipulated judgments in which there is no admission of liability by the defendant. A permanent injunction, final judgment, or final order of the court obtained by the attorney general under section 14 of this chapter is prima facie evidence in an action brought under this section that the defendant has violated section 10, 11, or 12 of this chapter.

(e) An action to enforce liability under this section may be brought within two (2) years from the date of discovery by the buyer.

24-5-13.5-14

A manufacturer or dealer who fails to comply with section 10, 11, or 12 of this chapter, as applicable to the manufacturer or dealer, commits a deceptive act that is actionable by the attorney general under IC 24-5-0.5-4 and is subject to the remedies and penalties set forth in IC 24-5-0.5.

IOWA STATE LEMON LAWS:

2008-12-13T03:48:00.002-08:00

IOWA STATE LEMON LAWS

Iowa Lemon Law
Iowa Code Annotated ง 322G.1 to ง 322G.15

322G.1 Legislative intent.

The general assembly recognizes that a motor vehicle is a major consumer acquisition and that a defective motor vehicle undoubtedly creates a hardship for the consumer. The general assembly further recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the general assembly that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time. It is further the intent of the general assembly to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this chapter. However, this chapter does not limit the rights or remedies which are otherwise available to a consumer under any other law.

322G.2 Definitions.

As used in this chapter, unless the context otherwise requires:

1. "Collateral charges" means those additional charges to a consumer wholly incurred as a result of the acquisition of the motor vehicle. For the purposes of this chapter, collateral charges include, but are not limited to, charges for manufacturer-installed or agent-installed items, earned finance charges, use taxes, and title charges.

2. "Condition" means a general problem that may be attributable to a defect in more than one part.

3. "Consumer" means the purchaser or lessee, other than for purposes of lease or resale, of a new or previously untitled motor vehicle, or any other person entitled by the terms of the warranty to enforce the obligations of the warranty during the duration of the lemon law rights period.

4. "Days" means calendar days.

5. "Department" means the attorney general.

6. "Incidental charges" means those reasonable costs incurred by the consumer, including, but not limited to, towing charges and the costs of obtaining alternative transportation, which are the direct result of the nonconformity or nonconformities which are the subject of the claim. Incidental charges do not include loss of use, loss of income, or personal injury claims.

7. "Lease price" means the aggregate of the following:

a. Lessor's actual purchase costs.

b. Collateral charges, if applicable.

c. Any fee paid to another to obtain the lease.

d. Any insurance or other costs expended by the lessor for the benefit of the lessee.

e. An amount equal to state and local use taxes, not otherwise included as collateral charges, paid by the lessor when the vehicle was initially purchased.

f. An amount equal to five percent of the lessor's actual purchase cost.

8. "Lemon law rights period" means the term of the manufacturer's written warranty, the period ending two years after the date of the original delivery of a motor vehicle to a consumer, or the first twenty-four thousand miles of operation attributable to a consumer, whichever expires first.

9. "Lessee" means any consumer who leases a motor vehicle for one year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to the motor vehicle.

10. "Lessee cost" means the aggregate of the deposit and rental payments previously paid to the lessor for the leased vehicle.

11. "Lessor" means a person who holds the title to a motor vehicle leased to a lessee under a written lease agreement or who holds the lessor's rights under the agreement.

12. "Manufacturer" means a person engaged in the business of constructing or assembling new motor vehicles or installing on previously assembled vehicle chassis special bodies or equipment which, when installed, form an integral part of the new motor vehicle, or a person engaged in the business of importing new motor vehicles into the United States for the purpose of selling or distributing the new motor vehicles to new motor vehicle dealers.

13. "Motor vehicle" means a self-propelled vehicle purchased or leased in this state, except as provided in section 322G.15, and primarily designed for the transportation of persons or property over public streets and highways, but does not include mopeds, motorcycles, motor homes, or vehicles over ten thousand pounds gross vehicle weight rating.

14. "Nonconformity" means a defect, malfunction, or condition in a motor vehicle such that the vehicle fails to conform to the warranty, but does not include a defect, malfunction, or condition that results from an accident, abuse, neglect, modification, or alteration of the motor vehicle by persons other than the manufacturer or its authorized service agent.

15. "Person" means person as defined in section 714.16.

16. "Program" means an informal dispute settlement procedure established by a manufacturer which mediates and arbitrates motor vehicle warranty disputes arising in this state.

17. "Purchase price" means the cash price paid for the motor vehicle appearing in the sales agreement or contract, including any net allowance given for a trade-in vehicle.

18. "Reasonable offset for use" means the number of miles attributable to a consumer up to the date of the third attempt to repair the same nonconformity which is the subject of the claim, or the first attempt to repair a nonconformity that is likely to cause death or serious bodily injury, or the twentieth cumulative day when the vehicle is out of service by reason of repair of one or more nonconformities, whichever occurs first, multiplied by the purchase price of the vehicle, or in the event of a leased vehicle, the lessor's actual lease price plus an amount equal to two percent of the purchase price, and divided by one hundred twenty thousand.

19. "Replacement motor vehicle" means a motor vehicle which is identical or reasonably equivalent to the motor vehicle to be replaced, and as the motor vehicle to be replaced would have existed without the nonconformity at the time of original acquisition.

20. "Substantially impair" means to render the motor vehicle unfit, unreliable, or unsafe for warranted or ordinary use, or to significantly diminish the value of the motor vehicle.

21. "Warranty" means any written warranty issued by the manufacturer; or any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale or lease of a motor vehicle to a consumer, which relates to the nature of the material or workmanship and affirms or promises that the material or workmanship is free of defects or will meet a specified level of performance.

322G.3 Duties of manufacturer.

1. At the time of the consumer's purchase or lease of the vehicle, the manufacturer shall provide to the consumer a written statement that explains the consumer's rights and obligations under this chapter. The written statement shall be prepared by the attorney general and shall contain a telephone number that the consumer can use to obtain information from the attorney general regarding the rights and obligations provided under this chapter.

2. At the time of the consumer's purchase or lease of the vehicle, the manufacturer shall provide to the consumer the address and phone number for the zone, district, or regional office of the manufacturer for this state where a claim may be filed by the consumer. This information shall be provided to the consumer in a clear and conspicuous manner. Within thirty days of the introduction of a new model year for each make and model of motor vehicle sold in this state, the manufacturer shall notify the attorney general of such introduction. The manufacturer shall also inform the attorney general that a copy of the owner's manual and applicable written warranties shall be provided upon request and provide information as to where the request should be made. The manufacturer shall inform the attorney general where such a request should be directed and shall provide the copy of the owner's manual and applicable written warranties within five business days of a request by the attorney general.

3. A manufacturer or the authorized service agent of the manufacturer shall make repairs as necessary to conform the vehicle to the warranty if a motor vehicle does not conform to the warranty and the consumer reports the nonconformity to the manufacturer or authorized service agent during the lemon law rights period. Such repairs shall be made irrespective of whether they can be made prior to the expiration of the lemon law rights period.

4. A manufacturer or the authorized service agent of the manufacturer, shall provide to the consumer, each time the motor vehicle is returned after being examined or repaired under the warranty, a fully itemized, legible statement or repair order indicating any diagnosis made, and all work performed on the motor vehicle including, but not limited to, a general description of the problem reported by the consumer or an identification of the defect or condition, parts and labor, the date and the odometer reading when the motor vehicle was submitted for examination or repair, and the date when the repair or examination was completed.

5. Upon request from the consumer, the manufacturer, or the authorized service agent of the manufacturer, shall provide a copy of either or both of the following:

a. Any report or printout of any diagnostic computer operation compiled by the manufacturer or authorized service agent regarding an inspection or diagnosis of the motor vehicle.

b. A copy of any technical service bulletin issued by the manufacturer regarding the year and model of the motor vehicle as it pertains to any material, feature, component, or the performance of the motor vehicle.

322G.4 Nonconformity of motor vehicles.

1. After three attempts have been made to repair the same nonconformity that substantially impairs the motor vehicle, or after one attempt to repair a nonconformity that is likely to cause death or serious bodily injury, the consumer may give written notification, which shall be by certified or registered mail or by overnight service, to the manufacturer of the need to repair the nonconformity in order to allow the manufacturer a final attempt to cure the nonconformity. The manufacturer shall, within ten days after receipt of such notification, notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility and after delivery of the vehicle to the designated repair facility by the consumer, the manufacturer shall, within ten days, conform the motor vehicle to the warranty. If the manufacturer fails to notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility or perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply.

After twenty or more cumulative days when the motor vehicle has been out of service by reason of repair of one or more nonconformities, the consumer may give written notification to the manufacturer which shall be by certified or registered mail or by overnight service. Commencing upon the date such notification is received, the manufacturer has ten cumulative days when the vehicle has been out of service by reason of repair of one or more nonconformities to conform the motor vehicle to the warranty.

2. If the manufacturer, or its authorized service agent, has not conformed the motor vehicle to the warranty by repairing or correcting one or more nonconformities that substantially impair the motor vehicle after a reasonable number of attempts, the manufacturer shall, within forty days of receipt of payment by the manufacturer of a reasonable offset for use by the consumer, replace the motor vehicle with a replacement motor vehicle acceptable to the consumer, or repurchase the motor vehicle from the consumer or lessor and refund to the consumer or lessor the full purchase or lease price, less a reasonable offset for use. The replacement or refund shall include payment of all collateral and reasonably incurred incidental charges. The consumer has an unconditional right to choose a refund rather than a replacement. If the consumer elects to receive a refund, and the refund exceeds the amount of the payment for a reasonable offset for use, the requirement that the consumer pay the reasonable offset for use in advance does not apply, and the manufacturer shall deduct that amount from the refund due to the consumer. If the consumer elects a replacement motor vehicle, the manufacturer shall provide the consumer a substitute motor vehicle to use until such time as the replacement vehicle is delivered to the consumer. At the time of the refund or replacement, the consumer, lien holder, or lessor shall furnish to the manufacturer clear title to and possession of the original motor vehicle.

Refunds shall be made to the consumer and lien holder of record, if any, as their interests appear. If applicable, refunds shall be made to the lessor and lessee as follows: the lessee shall receive the lessee's cost less a reasonable offset for use, and the lessor shall receive the lease price less the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle. If it is determined that the lessee is entitled to a refund pursuant to this chapter, the consumer's lease agreement with the lessor is terminated upon payment of the refund and no penalty for early termination shall be assessed. The department of revenue and finance shall refund to the manufacturer any use tax which the manufacturer refunded to the consumer, lessee, or lessor under this section, if the manufacturer provides to the department of revenue and finance a written request for a refund and evidence that the use tax was paid when the vehicle was purchased and that the manufacturer refunded the use tax to the consumer, lessee, or lessor.

3. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the warranty if, during the lemon law rights period, any of the following occur:

a. The same nonconformity that substantially impairs the motor vehicle has been subject to examination or repair at least three times by the manufacturer or its authorized service agent, plus a final attempt by the manufacturer to repair the motor vehicle if undertaken as provided for in subsection 1, and such nonconformity continues to exist.

b. A nonconformity that is likely to cause death or serious bodily injury has been subject to examination or repair at least one time by the manufacturer or its authorized service agent, plus a final attempt by the manufacturer to repair the motor vehicle if undertaken as provided for in subsection 1, and such nonconformity continues to exist.

c. The motor vehicle has been out of service by reason of repair by the manufacturer, or its authorized service agent, of one or more nonconformities that substantially impair the motor vehicle for a cumulative total of thirty or more days, exclusive of down time for routine maintenance prescribed by the owner's manual. The thirty-day period may be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, fire, flood, or natural disaster.

The terms of this subsection shall be extended for a period of up to two years after the date of the original delivery of a motor vehicle to a consumer, or the first twenty-four thousand miles of operation attributable to a consumer, whichever occurs first, if a nonconformity has been reported but has not been cured by the manufacturer, or its authorized service agent, before the expiration of the lemon law rights period.

4. A manufacturer, or its authorized service agent, shall not refuse to examine or repair any nonconformity for the purpose of avoiding liability under this chapter.

322G.5 Affirmative defenses.

Any of the following is an affirmative defense to a claim under this chapter:

1. The alleged nonconformity or nonconformities do not substantially impair the motor vehicle.

2. A nonconformity is the result of an accident, abuse, neglect, or unauthorized modification or alteration of the motor vehicle by a person other than the manufacturer or its authorized service agent.

3. The claim by the consumer was not filed in good faith.

4. Any other defense allowed by law which may be raised against the claim.

322G.6 Informal dispute settlement procedures

Operations and certification.

1. At the time of the consumer's purchase or lease of the vehicle, a manufacturer who has established a program certified pursuant to this section shall, at a minimum, clearly and conspicuously disclose to the consumer in written materials accompanying the vehicle how and where to file a claim with the program.

2. A certified program shall be funded and competently staffed at a level sufficient to ensure fair and expeditious resolution of all disputes, and shall not charge consumers any fee for use of the program. The manufacturer shall take all steps necessary to ensure that a certified program and its staff and decision makers are sufficiently insulated from the manufacturer so that the performance of the staff and the decisions of the decision makers are not influenced by the manufacturer. Such steps, at a minimum, shall ensure that the manufacturer does not make decisions on whether a consumer's dispute proceeds to the decision maker. Staff and decision makers of a certified program shall be trained in the provisions of this chapter and rules adopted under this chapter.

3. A certified program shall allow an oral presentation by a party, or by a party's employee, agent, or representative.

Within five days following the consumer's notification to the certified program of the dispute, the program shall inform each party of their right to make an oral presentation.

Meetings of a certified program to hear and decide disputes shall be open to observers, including either party to the dispute, on reasonable and nondiscriminatory terms.

4. A certified program shall render a decision no later than sixty days from the day of the consumer's notification of the dispute, provided that a significant number of decisions are rendered within forty days. For the purposes of this section, notification is deemed to have occurred when a certified program has received the consumer's name and address; the current date and the date of the original delivery of the motor vehicle to a consumer; the year, make, model, and identification number of the motor vehicle; and a description of the nonconformity. If the consumer has not previously notified the manufacturer of the nonconformity, the sixty-day period is extended for an additional seven days.

5. A certified program shall, in rendering decisions, take into account the provisions of this chapter and all legal and equitable factors germane to a fair and just decision. The decision shall disclose to the consumer and the manufacturer the reasons for the decision, and the manufacturer's required actions, if applicable. If the decision is in favor of the consumer, the consumer shall have up to twenty-five days from the date of receipt of the certified program's decision to indicate acceptance of the decision. The decision shall prescribe a reasonable period of time, not to exceed thirty days from the date the consumer notifies the manufacturer of acceptance of the decision, within which the manufacturer must fulfill the terms of the decision. If the manufacturer has had a reasonable number of attempts to conform a motor vehicle to the warranty as set forth in section 322G.4, subsection 3, including a final attempt by the manufacturer to repair the motor vehicle, if undertaken as provided for in section 322G.4, subsection 1, and the consumer is entitled to a replacement vehicle or a refund under section 322G.4, subsection 2, the decision shall be limited to relief as allowed under section 322G.4, subsection 2. In an action brought by a consumer under this chapter, the decision of a certified program is admissible in evidence.

6. A certified program shall establish written procedures which explain operation of the certified program. Copies of the written procedures shall be made available to any person upon request and shall be sent to the consumer upon notification of the dispute.

7. A certified program shall retain all records for each dispute for at least four years after the final disposition of the dispute. A certified program shall have an independent audit conducted annually to determine whether the manufacturer and its performance and the program and its implementation are in compliance with this chapter. All records for each dispute shall be available for the audit. Such audit, upon completion, shall be forwarded to the attorney general.

8. Any manufacturer licensed to sell motor vehicles in this state may apply to the attorney general for certification of its program. A manufacturer seeking certification of its program in this state shall submit to the attorney general an application for certification on a form prescribed by the attorney general.

9. A program certified in this state or a program established by a manufacturer applying for certification in this state shall submit to the attorney general a copy of each settlement approved by the program or decision made by the decision maker within thirty days after the settlement is reached or the decision is rendered. The decision or settlement shall contain information prescribed by the attorney general.

10. The attorney general shall review the operations of any certified program at least once annually. The attorney general shall prepare annual and periodic reports evaluating the operation of certified programs serving consumers in this state or programs established by motor vehicle manufacturers applying for certification in this state. The reports shall indicate whether certification should be granted, renewed, denied, or revoked.

11. If a manufacturer has established a program which the attorney general has certified as substantially complying with the provisions of and the rules adopted under this chapter, and has informed the consumer how and where to file a claim with the program pursuant to subsection 1, the provisions of section 322G.4, subsection 2, do not apply to any consumer who has not first resorted to the program.

322G.7 Informal dispute settlement procedure

Certification uniformity.

To facilitate uniform application, interpretation, and enforcement of this section and section 322G.6, and in implementing rules adopted pursuant to section 322G.14, the attorney general may cooperate with agencies that perform similar functions in any other states that enact these or similar sections. The cooperation authorized by this subsection may include any of the following:

1. Establishing a central depository for copies of all applications and accompanying materials submitted by manufacturers for certification, and all reports prepared, notices issued, and determinations made by the attorney general under section 322G.6.

2. Sharing and exchanging information, documents, and records pertaining to program operations.

3. Sharing personnel to perform joint reviews, surveys, and investigations of program operations.

4. Preparing joint reports evaluating program operations.

5. Granting joint certifications and certification renewals.

6. Issuing joint denials or revocations of certification.

7. Holding a joint administrative hearing.

8. Formulating, in accordance with chapter 17A, the administrative procedure Act, rules or proposed rules on matters such as guidelines, forms, statements of policy, interpretative opinions, and any other information necessary to implement section 322G.6.

322G.8 Consumer remedies.

1. If a consumer resorts to a manufacturer's certified program and a decision is not rendered within the time periods allowed in this chapter, or a manufacturer has no certified program and the consumer has notified the manufacturer pursuant to section 322G.4, subsection 1, the consumer may file an action in district court under this chapter within one year from the expiration of the lemon law rights period or an extension of the period pursuant to section 322G.4, subsection 3.

2. If a consumer resorts to a manufacturer's certified program and is not satisfied with the performance of the manufacturer as ordered in the decision, or the manufacturer does not perform as directed by the decision within the time period specified in the decision, the consumer may file an action in district court under this chapter within six months after the date prescribed in the decision by which the manufacturer must fulfill the terms of the decision. If the consumer declines to accept the decision of the manufacturer's certified program, the consumer may appeal the decision pursuant to subsection 4. For purposes of this subsection, "not satisfied with the performance of the decision" means, following the consumer's acceptance of the decision, the consumer indicates that the manufacturer failed to comply with the terms of the decision within the time specified in the decision or failed to cure the nonconformity within the time specified in the decision if further repairs were ordered.

3. In an action under either subsection 1 or 2, the court shall award a consumer who prevails the amount of any pecuniary loss, including relief the consumer is entitled to under section 322G.4, subsection 2, reasonable attorney's fees, and costs. In addition, if the court affirms the decision of the certified program, the court may award any additional amounts allowed under subsection 7.

4. A certified program's decision is final unless appealed by either party. A petition to the district court to appeal a decision must be made within fifty days after receipt of the decision or within twenty-five days from the date the consumer indicates acceptance of the decision to the manufacturer, whichever occurs first. Within seven days after the petition has been filed, the appealing party must send, by certified, registered, or express mail, a copy of the petition to the attorney general. If the attorney general receives no notice of the petition within sixty days after the manufacturer's receipt of a decision in favor of the consumer, and the consumer has indicated acceptance of the decision within the twenty-five days of receipt of the decision, but the manufacturer has neither complied with, nor petitioned to appeal the decision, the attorney general may apply to the court to impose a fine up to one thousand dollars per day against the manufacturer until the amount stands at twice the purchase price of the motor vehicle, unless the manufacturer provides clear and convincing evidence that the delay or failure was beyond its control or was acceptable to the consumer as evidenced by a written statement signed by the consumer. If the manufacturer fails to provide such evidence or fails to pay the fine, the attorney general shall initiate proceedings against the manufacturer for failure to pay the fine. The proceeds from the fine imposed shall be placed in the attorney general's motor vehicle fraud and odometer law enforcement fund for implementation and enforcement of this chapter.

5. If the manufacturer fails to comply with a decision which has been timely accepted by the consumer or fails to file a timely petition for appeal, the court shall affirm the board's decision upon application by the consumer.

6. An appeal of a decision by a certified program to the court by a consumer or a manufacturer shall be tried de novo, and may be based upon stipulated facts. In a written petition to appeal a decision by the board, the appealing party must state the action requested and the grounds relied upon for appeal.

7. If a decision of the certified program in favor of the consumer is affirmed or upheld by the court, recovery by the consumer shall include the pecuniary value of the award, including relief the consumer is entitled to under section 322G.4, subsection 2, attorney's fees incurred in obtaining confirmation of the award, and all costs and continuing damages in an amount of twenty-five dollars per day for all days beyond the twenty-five-day period following the manufacturer's receipt of the consumer's acceptance of the certified program's decision. If a court determines that a manufacturer filed a petition for appeal to be tried de novo in bad faith or brought such an appeal solely for the purpose of harassment, the court shall double, and may triple, the amount of the total award, after consideration of all circumstances.

8. Appellate review of a court decision in favor of the consumer may be conditioned upon payment by the manufacturer of the consumer's attorney's fees and giving security for costs and expenses resulting from the review period.

9. This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law.

322G.9 Compliance and disciplinary action.

The attorney general may enforce and ensure compliance with the provisions of this chapter and rules adopted pursuant to section 322G.14, may issue subpoenas requiring the attendance of witnesses and the production of evidence, and may petition any court having jurisdiction to compel compliance with the subpoenas. The attorney general may levy and collect an administrative fine in an amount not to exceed one thousand dollars for each violation against any manufacturer found to be in violation of this chapter or rules adopted pursuant to section 322G.14. A manufacturer may request a hearing pursuant to chapter 17A, the administrative procedure Act, if the manufacturer contests the fine levied against it. The proceeds from any fine levied and collected pursuant to this section shall be placed in the attorney general's motor vehicle fraud and odometer law enforcement fund for implementation and enforcement of this chapter.

322G.10 Unfair or deceptive trade practice.

A violation by a manufacturer of this chapter is an unfair or deceptive trade practice in violation of section 714.16, subsection 2, paragraph "a".

322G.11 Dealer liability.

This chapter, except for the requirements of section 322G.12, does not impose any liability on a franchised motor vehicle dealer or create a cause of action by a consumer against a dealer. A dealer shall not be made a party defendant in any action involving or relating to this chapter, except as provided in this section. The manufacturer shall not charge back or require reimbursement by the dealer for any costs, including but not limited to any refunds or vehicle replacements, incurred by the manufacturer pursuant to this chapter, in the absence of a finding by a court that the related repairs had been carried out by the dealer in a manner substantially inconsistent with the manufacturer's published instructions. A manufacturer who is found by a court to have improperly charged back a dealer because of a violation of this section is liable to the injured dealer for full reimbursement plus reasonable costs and any attorney's fees.

322G.12 Resale of returned vehicles.

Subsequent to December 31, 1991, a manufacturer who accepts the return of a motor vehicle pursuant to a settlement, determination, or decision under this chapter shall notify the state department of transportation and report the vehicle identification number of that motor vehicle within ten days after the acceptance. The state department of transportation shall note the fact that the motor vehicle was returned pursuant to this chapter on the title for the motor vehicle. A person shall not knowingly lease; or sell, either at wholesale or retail; or transfer a title to a motor vehicle returned by reason of a settlement, determination, or decision pursuant to this chapter or a similar statute of any other state unless the nature of the nonconformity is clearly and conspicuously disclosed to the prospective transferee, lessee, or buyer. The attorney general shall prescribe by rule the form, content, and procedure pertaining to such a disclosure statement, recognizing the need of manufacturers to implement a uniform disclosure form. The manufacturer shall make a reasonable effort to ensure that such disclosure is made to the first subsequent retail buyer or lessee. For purposes of this subsection, "settlement" includes an agreement entered into between the manufacturer and the consumer that occurs after the dispute has been submitted to a state-operated dispute resolution program or to a manufacturer-established program certified in this or any other state, but does not include agreements reached in informal proceedings prior to the first written or oral presentation to the state-operated or state-certified dispute resolution program by either party. "Settlement" also includes an agreement entered into between a manufacturer and a consumer that occurs after the dispute has been submitted to a dispute resolution program that is not state-operated or state-certified.

322G.13 Certain agreements void.

Any agreement entered into by a consumer that waives, limits, or disclaims the rights set forth in this chapter is void as contrary to public policy.

322G.14 Rulemaking authority.

1. The attorney general shall adopt rules as necessary to implement this chapter.

2. In prescribing rules and forms under this chapter, the attorney general may cooperate with agencies that perform similar functions in other states with a view to effectuating the policy of this chapter to achieve maximum uniformity in the form and content of certification, regulation, and procedural evaluation of manufacturer-established programs, required record keeping, required reporting wherever practicable, and required notices to consumers.

22G.15 Applicability.

This chapter applies to motor vehicles originally purchased or leased in this state by consumers on or after July 1, 1991. Except for section 322G.3, subsections 1 and 2, and section 322G.6, subsection 1, this chapter applies to motor vehicles originally purchased or leased in other states, if the consumer is a resident of this state at the time the consumer's rights are asserted under this chapter. Section 322G.14, which concerns rulemaking, shall take effect May 9, 1991.

KANSAS STATE LEMON LAWS

2008-12-13T03:48:00.001-08:00

KANSAS STATE LEMON LAWS

Kansas Lemon Law
Kansas Statutes Annotated 50-645

50-645 Motor vehicle warranties.

Definitions; consumer rights and remedies.

(a) As used in this act:

(1) "Consumer" means the original purchaser or lessee, other than for purposes of resale, of a motor vehicle; and

(2) "motor vehicle" means a new motor vehicle which is sold or leased in this state, and which is registered for a gross weight of 12,000 pounds or less, and does not include the customized parts of motor vehicles which have been added or modified by second stage manufacturers, first stage converters or second stage converters as defined in K.S.A. 8-2401, and amendments thereto.

(b) If a motor vehicle does not conform to all applicable warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer during the term of any warranties or during the period of one year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such warranties, notwithstanding the fact that such repairs are made after the expiration of any such term or such one-year period.

(c) If the manufacturer, or its agents or authorized dealers, are unable to conform the motor vehicle to any applicable warranty after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a comparable motor vehicle under warranty or accept return of the vehicle from the consumer and refund to the consumer the full purchase or lease price including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle as calculated from the most recent edition of Your Driving Costs, published by the American automobile association. Refunds shall be made to the consumer, and lien holder if any, as their interests may appear. A reasonable allowance for use shall be that amount directly attributable to use by the consumer and any previous consumer prior to the first report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair. It shall be an affirmative defense to any claim under this act that:

(1) An alleged nonconformity does not substantially impair such use and value; or

(2) a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by a consumer.

(d) If the manufacturer receives actual notice of the nonconformity, it shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable warranties, if:

(1) The same nonconformity which substantially impairs the use and value of the motor vehicle to the consumer has been subject to repair four or more times by the manufacturer or its agents or authorized dealers within the term of any warranty or during the period of one year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, but such nonconformity continues to exist;

(2) the vehicle is out of service by reason of repair for a cumulative total of 30 or more calendar days during such term or period, whichever is the earlier date; or

(3) there have been 10 or more attempts to repair any nonconformities which substantially impair the use and value of the motor vehicle to the consumer and such attempts to repair have been attempts by the manufacturer or its agents or authorized dealers.

The term of any warranty, such one-year period and such thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, fire, flood or other natural disaster.

(e) If a manufacturer has established an informal dispute settlement procedure which complies in all respects with the provisions of title 16, code of federal regulations, part 703, as from time to time amended, the provisions of subsection (c) concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.

(f) The attorney general shall have jurisdiction to enforce this section.

KENTUCKY STATE LEMON LAWS:

2008-12-13T03:47:00.001-08:00

KENTUCKY STATE LEMON LAWS:

Kentucky Lemon Law
Kentucky Revised Statutes, ง 367.840 to 367.846

367.840 Purposes.

KRS 367.841 to 367.844 shall be liberally construed and applied to promote the underlying purposes of KRS 367.841 to 367.844, which purposes are:

(1) To protect consumers who buy or lease new motor vehicles that do not conform to applicable warranties by holding manufacturers accountable for certain nonconformities;

(2) To limit the number of attempts and the amount of times that a manufacturer or its agents shall have to cure such nonconformities; and

(3) To require manufacturers to provide, in as expeditious a manner as possible, a refund, not to exceed the amount in KRS 367.842, or replacement vehicle that is acceptable to the aggrieved consumer when the manufacturer or its agents fail to cure any nonconformity within the specified limits.

367.841 Definitions.

(1) "Buyer" means any resident person who buys, contracts to buy, or leases a new motor vehicle in the Commonwealth of Kentucky. In the case of the lease of a new motor vehicle, "buyer" shall mean the lessor, lessee, or both.

(2) "Manufacturer" means any person or corporation, resident or nonresident, who manufactures or assembles new motor vehicles, including new conversion van manufacturers, which are sold in the Commonwealth of Kentucky.

(3) "Motor vehicle" means every vehicle which is self-propelled, and which is intended primarily for use and operation on the public highways and required to be registered or licensed in the Commonwealth prior to such use or operation; however, "motor vehicle" shall not include:

(a) Any vehicle substantially altered after its initial sale from a dealer to an individual;

(b) Motor homes;

(d) Mopeds;

(e) Farm tractors and other machines used in the production, harvesting, and care of farm products; or

(f) Vehicles which have more than two (2) axles.

(4) "New motor vehicle" means a motor vehicle which has been finally and completely assembled and is in the possession of a manufacturer, factory branch, distributor, wholesaler, or an authorized motor vehicle dealer operating under a valid sales and service agreement, franchise, or contract for the sale of such vehicle granted by the manufacturer, factory branch, distributor, or wholesaler which is, in fact, new and on which the original title has never been issued.

(5) "Express warranty" or "warranty" means the written warranty, so labeled, of the manufacturer of a new automobile, including any terms or conditions precedent to the enforcement of obligations under the warranty.

(6) "Nonconformity" means a failure to conform with an express warranty in a manner which substantially impairs the use, value, or safety of the motor vehicle.

(7) "Reasonable allowance for use" means the amount directly attributable to a consumer's use of the vehicle other than those time periods when the vehicle is out of service due to the nonconformity.

367.842 Options of buyer.

If manufacturer unable to repair nonconformity in new motor vehicle; Rights of lien holder; Resolution of disputes; Dealer not liable.

(1) If, after a reasonable number of attempts, the manufacturer or its agents are unable to repair the nonconformity in the motor vehicle to the express warranty during the first twelve thousand (12,000) miles of operation or during the first twelve (12) months following the date of delivery to the buyer, whichever is the earlier date, that buyer shall report the nonconformity, in writing, to the manufacturer.

(2) If, within the period specified in subsection (1) of this section, the manufacturer or its agents, are unable to repair or correct any nonconformity or defect that substantially impairs the use, value, or safety of the motor vehicle, after a reasonable number of attempts, the manufacturer, at the option of the buyer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the buyer and refund to the buyer the full purchase price. The full purchase price shall include the amount paid for the motor vehicle, finance charge, all sales tax, license fee, registration fee, and any similar governmental charges plus all collateral charges, less a reasonable allowance for the buyer's use of the vehicle. Refunds shall be made to the buyer and lien holder, if any, as their interests may appear on the records of ownership kept by the Department of Vehicle Regulation. The provisions of this section shall not affect the interests of a lien holder, unless the lien holder consents to the replacement of the lien with a corresponding lien on the automobile accepted by the consumer in exchange for the automobile having a nonconformity, the lien holder shall be paid in full the amount due on the lien, including finance charges and other charges, before an exchange of automobiles or a refund to the consumer is made. It shall be an affirmative defense to any claim under this section that:

(a) The nonconformity, defect, or condition does not substantially impair the use, value, or safety of the motor vehicle; or

(b) The nonconformity, defect, or condition is the result of abuse, neglect, or unauthorized modification or alteration of the motor vehicle by the buyer.

(3) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranty if, within the first twelve thousand (12,000) miles of operation or during the period of, twelve (12) months following the date of original delivery of the motor vehicle to the buyer, whichever is the earlier date:

(a) The same nonconformity, defect, or condition has been subject to repair four (4) or more times by the manufacturer, but such nonconformity, defect, or condition continues to exist; or

(b) The vehicle is out of service/use by reason of repair of the same nonconformity, defect, or condition for a cumulative total of at least thirty (30) calendar days.

(4) Disputes arising under subsection (2) of this section concerning refund or replacement shall be resolved through the dispute resolution system established under either KRS 367.860 to 367.870, or 16 C.F.R. part 703. Such remedy shall be pursued prior to seeking any judicial relief under KRS 367.843.

(5) Nothing in this chapter may be construed as imposing any liability on a dealer or creating a cause of action by a consumer against a dealer.

(6) Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a buyer under any other law.

(7) Any agreement entered into by a buyer for the purchase of a new motor vehicle which waives, limits, or disclaims the rights set forth in this section shall be void as contrary to public policy.

(8) Any action brought pursuant to this section shall be commenced within two (2) years after the date of original delivery of the new motor vehicle to the buyer.

(9) A court may award reasonable attorney's fees to a prevailing plaintiff.

367.843 Action for relief by purchaser.

Any person who purchases a motor vehicle and thereby suffers any ascertainable loss of money or property, real or personal, as a result of a violation of KRS 367.842, may bring an action under the provisions of KRS 367.220 for relief.

367.844 Manufacturer prohibited from exposing franchised dealer to liability.

No manufacturer shall, directly or indirectly, by any means or methods, expose or attempt to expose any franchised dealer to liability as forbidden in KRS 367.842(4) and (5). Any violation of this section shall be subject to all applicable provisions of the law, including but not limited to the provisions of KRS 190.062(2).

367.845 Enforcement of provisions of KRS 367.842 to 367.844 by Attorney General.

Noncompliance with the provisions of KRS 367.842 to 367.844 by a manufacturer shall be unlawful. The Attorney General shall have authority to enforce KRS 367.842 to 367.844 in accordance with powers provided by KRS 367.190 and 367.230, pertaining to acts declared unlawful by KRS 367.170. Any expenses accruing to the Attorney General from the provisions of KRS 367.842 to 367.844 shall be assessed by his office upon the motor vehicle manufacturer involved in any action cited in the provisions herein.

367.846 Application of KRS 367.840 to 367.845.

KRS 367.840 to 367.845 shall apply to new motor vehicles purchased after July 15, 1986, and to motor vehicles leased after July 15, 1998.

LOUISIANA STATE LEMON LAWS:

2008-12-13T03:46:00.002-08:00

LOUISIANA STATE LEMON LAWS:

Louisiana Lemon Law
Louisiana Revised Statutes Annotated 51:1941 to 51:1948

ง 1941. Definitions.

The following definitions apply when used in this Chapter:

(1) "Collateral costs" means sales tax, license fees, and registration fees and any similar governmental charges.

(2) "Consumer" means:

(a) The purchaser, other than for purposes of resale, of a new motor vehicle normally used for personal, family, or household purposes and subject to a manufacturer's express warranty;

(b) A person, other than for purposes of resale, to whom a motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle;

(d) Any other person entitled to enforce the warranty.

(3) "Dealer" means a person authorized by the manufacturer and actively engaged in the business of buying, selling, or exchanging new automobiles, new personal watercraft, new all-terrain vehicles, or new motor homes at retail and who has an established place of business.

(4) "Manufacturer" means any person, firm, association, corporation, or trust, resident or nonresident, who manufactures or assembles new and unused motor vehicles.

(5) "Manufacturer's express warranty" and "warranty" mean the written warranty of the manufacturer of a new motor vehicle of its condition and fitness for use, including any terms or conditions precedent to the enforcement of an obligation under that warranty.

(6) "Motor vehicle" means a passenger motor vehicle or a passenger and commercial motor vehicle as defined in R.S. 32:1252(13), sold in this state on or after September 1, 1984. "Motor vehicle" shall include a personal watercraft as defined in R.S. 34:855.2 and an all-terrain vehicle as defined in R.S. 32:771(1), sold in this state or still under warranty on or after August 15, 1999, which is used exclusively for personal and not commercial purposes. "Motor vehicle" shall include the chassis and drive train of a motor home as defined in R.S. 32:1252(12), sold in this state or still under warranty on or after August 15, 1999, which is used exclusively for personal and not commercial purposes. For the purposes of this Chapter, the following motor vehicles are excluded:

(a) Motor vehicles, except for motor homes, 10,000 GVW or above.

(b) Motor vehicles used exclusively for commercial purposes.

(7) "Nonconformity" means any specific or generic defect or malfunction, or any defect or condition which substantially impairs the use and/or market value of a motor vehicle.

ง 1942. Manufacturer's duty to repair; nonconformity

If a new motor vehicle does not conform to an applicable express warranty, and the consumer reports the nonconformity to the manufacturer or any of its authorized motor vehicle dealers and makes the motor vehicle available for repair before the expiration of the warranty or during a period of one year following the date of the original delivery of the motor vehicle to a consumer, whichever is the earlier date, the manufacturer, its agent, or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such warranty, notwithstanding the fact that such repairs are made after the expiration of such terms or such one-year period.

ง 1943. Express warranties; time limit to conform

A. (1) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if the vehicle is out of service by reason of repair for a cumulative total of ninety or more calendar days or the same nonconformity has been subject to repair four or more times by the manufacturer, its agent, or its authorized dealer within the warranty term or during a period of one year following the date of the original delivery of the motor vehicle to the consumer, whichever is the earlier date.

(2) (a) Notwithstanding the provisions of Paragraph (1) of this Subsection, in the case of a motor home, the consumer shall provide written notification to the manufacturer of any of the following:

(i) The need to repair the nonconformity.

(ii) Evidence of a cumulative total of at least ninety days of the motor home being out of service.

(iii) Evidence that the same nonconformity has been subject to repair four or more times by the its agent, or its authorized dealer within the warranty term or during a period of one year following the date of the original delivery of the motor vehicle to the consumer, whichever is the earlier date.

(b) Upon such notification, the manufacturer shall have a final attempt to repair the vehicle. The manufacturer shall have five business days upon receipt of such notification to respond to the consumer as to where the motor home may be delivered for repair. The repair facility shall be one which is authorized by the manufacturer to perform the necessary warranty work.

(c) Once delivered, the repair facility shall have ten business days within which to conform the vehicle to the applicable warranty. The time periods provided for in this Paragraph may only be extended if the consumer authorizes such extension in writing.

(2) If a manufacturer fails to respond to the consumer or to perform the repairs within the time periods described in Paragraphs (1) and (2) of this Subsection, such manufacturer shall be deemed to have waived his rights to a final attempt to cure the nonconformity.

B. The term of an express warranty shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, fire, flood, or natural disaster.

C. The provisions in Subsection A of this Section shall be suspended for any period of time during which repair services cannot be performed by the manufacturer, its agents, or authorized dealer because of war, invasion, strike, fire, flood, or natural disaster.

ง 1944. Motor vehicle replacement or refund

A. If a nonconformity in a motor home has not been repaired within the time periods provided for in R.S. 32:1943(A)(2), or if after four or more attempts within the express warranty term or during a period of one year following the date of the original delivery to the consumer of a motor vehicle which is not a motor home, whichever is the earlier, the nonconformity has not been repaired or if the vehicle is out of service by reason of repair for a cumulative total of ninety or more calendar days during the warranty period, the manufacturer shall:

(1) Replace the motor vehicle with a comparable new motor vehicle, or, at its option,

(2) Accept return of the motor vehicle and refund the full purchase price plus any amounts paid by the consumer at the point of sale, and all collateral costs less a reasonable allowance for use to the consumer, or any holder of a perfected security interest in the motor vehicle, as their interest may appear, if the transaction was a sale.

B. If the transaction is a lease, the provisions of Paragraph (1) of Subsection A of this Section are applicable or the manufacturer may, if the lessor is willing, accept return of the motor vehicle and reimburse the lessee for all reasonable expenditures in connection with the lease, and further satisfy all conditions of the lease in connection with early termination and related charges. The lessee shall be liable for a reasonable allowance for use of the vehicle prior to the return thereof.

C. A reasonable allowance for use shall be that amount directly attributable to use by the consumer prior to his first notice of nonconformity to the manufacturer, agent, or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

D. If a manufacturer has established an informal dispute settlement procedure which substantially complies with the provisions of Title 16, Code of Federal Regulations, Part 703, as from time to time amended, the provisions of Subsections A, B and C of this Section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.

E. The consumer shall have no more than three years from the date he purchased the motor vehicle or until one year from the end of the warranty period, whichever is longer, in which to file suit against the manufacturer to force compliance with the provisions of this Section.

ง 1945. Transfer of title; time limitation

At the time of receiving the comparable new motor vehicle or refund under R.S. 51:1944, the consumer, or lessor, where applicable, shall surrender the motor vehicle subject to the nonconformity to the manufacturer together with the certificate of title with all endorsements necessary to transfer title to the manufacturer. The manufacturer shall provide the consumer, or lessor, where applicable, with a comparable new motor vehicle or refund within thirty days after an offer to transfer title in compliance with this Section by the consumer, or lessor, where applicable, or within thirty days after a decision by the informal dispute settlement procedure established by the manufacturer to award a refund or replacement.

ง 1945.1. Mandatory disclosure of nonconformity to warranty by sellers

A. (1) Upon the sale or transfer of title by a manufacturer, its agent, or any dealer of any second-hand motor vehicle, previously returned to a manufacturer for nonconformity to its warranty pursuant to the requirements of this Chapter, the manufacturer shall execute and deliver to the buyer an instrument in writing in a form prescribed by the commissioner setting forth the following information in ten point, all capital type:

"IMPORTANT: THIS VEHICLE WAS RETURNED TO THE MANUFACTURER OR DEALER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY AND THE DEFECT OR CONDITION WAS NOT FIXED WITHIN THE TIME PROVIDED BY LOUISIANA LAW."

Such notice that a vehicle was returned to the manufacturer because it did not conform to its warranty shall also be conspicuously printed on the motor vehicle's certificate of title.

B. The failure of a dealer to deliver to the buyer the instrument required by this Section shall constitute a violation of this Chapter and shall be punishable by a fine of not less than five hundred dollars nor more than one thousand dollars for each violation.

ง 1946. Other remedies

Nothing in this Chapter shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.

ง 1947. Attorney fees

If the motor vehicle does not conform to applicable express warranties after the consumer has complied with the requirements of this Chapter, the consumer shall be entitled to reasonable attorney fees actually incurred if a judgment is rendered in part or whole in his favor.

ง 1948. Manufacturer's duty to provide reimbursement for temporary replacement vehicle; penalties

A. Whenever a motor vehicle which is covered by a manufacturer's express warranty is tendered by a consumer to the dealer from whom it was purchased or exchanged for the repair of any defect, malfunction, or nonconformity to which the warranty is applicable and at least one of the following conditions exists, the manufacturer shall provide directly to the consumer for the duration of the repair period a rental vehicle reimbursement of up to twenty dollars per day:

(1) The repair period exceeds ten work days, including the day on which the motor vehicle is tendered to the dealer for repair.

(2) The defect, malfunction, or nonconformity is the same for which the motor vehicle has been tendered to the dealer for repair on two previous occasions.

B. The provisions of this Section regarding a manufacturer's duty shall extend only for the period of the length of the manufacturer's express warranty or for two years, whichever period of time occurs first.

C. For violations of the provisions of Subsection A, the consumer shall be entitled to recover from the manufacturer for damages incurred and reasonable attorney fees actually incurred; however, in no event shall the amount of damages awarded be less than two hundred dollars. The provisions of this Section will become effective as to cars sold after January 1, 1987, and will not be in effect in case of war, work stoppages, and natural disasters beyond the control of the manufacturer that would prevent the timely repair or parts delivery to a dealer.

D. This Section shall not apply to personal watercraft or all-terrain vehicles tendered to a manufacturer for repair.

E. This Section shall not apply to motor homes tendered to a manufacturer for repair.

MAINE LEMON LAW LAWYERS:

2008-12-13T03:46:00.001-08:00

MAINE LEMON LAW LAWYERS:

Maine Lemon Law
Maine Revised Statutes Annotated, Tit. 10, งง1161-1169

1161 Definitions.

As used in this chapter, unless the context indicates otherwise, the following terms have the following meanings.

1. Consumer. "Consumer" means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle and any other person entitled by the terms of the warranty to enforce the obligations of the warranty, except that the term "consumer" shall not include any governmental entity, or any business or commercial enterprise which registers three or more motor vehicles.

2. Manufacturer. "Manufacturer" means manufacturer, importer, distributor or anyone who is named as the warrantor on an express written warranty on a motor vehicle.

3. Motor Vehicle. "Motor vehicle" means any motor driven vehicle, designed for the conveyance of passengers or property on the public highways, which is sold or leased in this State, except that the term “motor vehicle” does not include any commercial vehicle with a gross vehicle weight of 8,500 pounds or more.

4. Reasonable allowance for use. "Reasonable allowance for use" means that amount obtained by multiplying the total purchase price of the vehicle by a fraction having as its denominator 100,000 and having as it numerator the number of miles that the vehicle traveled prior to the manufacturer’s acceptance of its return.

5. State-certified arbitration. "State-certified arbitration" means the informal dispute settlement procedure administered by the Department of the Attorney General which arbitrates consumer complaints dealing with new motor vehicles that may be so defective as to qualify for equitable relief under the Maine lemon laws.

1162 Scope; construction.

1. Consumer Rights. Nothing in this chapter in any way limits the rights or remedies which are otherwise available to a consumer under any other law.

2. Manufacturers, distributors, agents and dealers. Nothing in this chapter in any way limits the rights or remedies of franchisees under chapter 204 or other applicable law.

3. Waivers void. Any agreement entered into by a consumer which waives, limits or disclaims the rights set forth in this chapter shall be void as contrary to public policy.

1163 Rights and duties.

1. Repair of nonconformities. If a new motor vehicle does not conform to all express warranties, the manufacturer, its agent or authorized dealer shall make those repairs necessary to conform the vehicle to the express warranties if the consumer reports the nonconformity to the manufacturer, its agent or authorized dealer during the term of the express warranties, within a period of 2 years following the date of original delivery of the motor vehicle to a consumer, or during the first 18,000 miles of operation, whichever is the earlier date. This obligation exists notwithstanding the fact that the repairs are made after the expiration of the appropriate time period.

2. Failure to make effective repair. If the manufacturer or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition, or combination of defects or conditions, which substantially impairs the use, safety or value of the motor vehicle after a reasonable number of attempts, the manufacturer shall either replace the motor vehicle with a comparable new motor vehicle or accept return of the vehicle from the consumer and make a refund to the consumer and lien holder, if any, as their interests may appear. The consumer may reject any offered replacement and receive instead a refund. The refund shall consist of the following items, less a reasonable allowance for use of the vehicle:

A. The full purchase price or, if a leased vehicle, the lease payments made to date, including any paid finance charges on the purchased or leased vehicle;

B. All collateral charges, including, but not limited to, sales tax, license and registration fees and similar government charges; and

C. Costs incurred by the consumer for towing and storage of the vehicle and for procuring alternative transportation while the vehicle was out of service by reason of repair.

The provisions of this section shall not affect the obligations of a consumer under a loan or sales contract or the secured interest of any secured party. The secured party shall consent to the replacement of the security interest with a corresponding security interest on a replacement motor vehicle which is accepted by the consumer in exchange for the motor vehicle, if the replacement motor vehicle is comparable in value to the original motor vehicle. If, for any reason, the security interest in the new motor vehicle having a defect or condition is not able to be replaced with a corresponding security interest on a new motor vehicle accepted by the consumer, the consumer shall accept a refund. Refunds required under this section shall be made to the consumer and the secured party, if any, as their interests exist at the time the refund is to be made. Similarly, refunds to a lessor and lessee shall be made as their interests exist at the time the refund is to be made.

3. Reasonable number of attempts; presumption. There is a presumption that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if:

A. The same nonconformity has been subject to repair 3 or more times by the manufacturer or its agents or authorized dealers within the express warranty term, during the period of 2 years following the date of original delivery of the motor vehicle to a consumer or during the first 18,000 miles of operation, whichever is the earlier date, and at least 2 of those times the same agent or dealer attempted the repair but the nonconformity continues to exist; or

B. The vehicle is out of service by reason of repair by the manufacturer, its agents or authorized dealer, of any defect or condition or combination of defects for a cumulative total of 15 or more business days during that warranty term or the appropriate time period, whichever is the earlier date.

3-A. Final opportunity to repair. If the manufacturer or his agents have been unable to make the repairs necessary to conform the vehicle to the express warranties, the consumer shall notify, in writing, the manufacturer or the authorized dealer of his desire for a refund or replacement. For the seven business days following receipt by the dealer or the manufacturer of this notice, the manufacturer shall have a final opportunity to correct or repair any nonconformities. This final repair shall be at a repair facility that is reasonably accessible to the consumer. This repair effort shall not stay the time period within which the manufacturer must provide an arbitration hearing pursuant to 1165.

4. Time limit; extension. The term of an express warranty, the one-year and two-year periods following delivery of the 15-day period provided in subsection 3, paragraph B, shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster.

5. Dealer liability. Nothing in this chapter may be construed as imposing any liability on a dealer or creating a cause of action by a consumer against a dealer under this section, except regarding any written express warranties made by the dealer apart from the manufacturer’s own warranties.

6. Disclosure of notice requirement. No consumer may be required to notify the manufacturer of a claim under this section, unless the manufacturer has clearly and conspicuously disclosed to the consumer, in the warranty or owner’s manual, that written notification of the nonconformity is required before the consumer may be eligible for a refund or replacement of the vehicle. The manufacturer shall include with the warranty or owner’s manual the name and address to which the consumer shall send the written notification.

6-A. Notification of Dealer. Consumers may also satisfy a manufacturer’s notice requirement by notifying in writing the authorized dealer of a claim under this section. The dealer shall act as the manufacturer’s agent and immediately communicate to the manufacturer the consumer’s claim.

7. Disclosure at time of resale. No motor vehicle which is returned to the manufacturer under subsection 2, may be resold without clear and conspicuous written disclosure to any subsequent purchaser, whether that purchaser is a consumer or a dealer, of the following information:

A. That the motor vehicle was returned to the manufacturer under this chapter;

B. That the motor vehicle did not conform to the manufacturer’s express warranties; and

C. The ways in which the motor vehicle did not conform to the manufacturer’s express warranties.

1164 Affirmative defense.

It is an affirmative defense to any claim under this chapter that:

1. Lack of impairment. An alleged nonconformity does not substantially impair the use, safety or value of the motor vehicle; or

2. Abuse. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by anyone other than the manufacturer, its agents or authorized dealers since delivery to the consumer.

1165 Informal dispute settlement.

If a manufacturer has established an informal dispute settlement procedure which complies in all respects with the provisions of 16 CFR, Part 703, as from time to time amended, the provisions of section 1163, subsection 2, concerning refunds or replacement shall not apply to any consumer who has not first resorted to that procedure or to state-certified arbitration. This requirement shall be satisfied 40 days after notification to the informal dispute settlement procedure of the dispute or when the procedure’s duties under 16 CFR, Part 703.5(d) are completed, whichever occurs sooner.

1166 Unfair or deceptive trade practice.

A violation of any of the provisions of this chapter shall be considered prima facie evidence of an unfair or deceptive trade practice under Title 5, chapter 10.

1167 Attorney’s fees.

In the case of a consumer’s successful action to enforce any liability under this chapter, a court may award reasonable attorney’s fees and costs incurred.

1168 New car leases.

For the purposes of this chapter only, the following apply to leases of new motor vehicles.

1. Warranties. If express warranties are regularly furnished to purchasers of substantially the same kind of motor vehicles:

A. Those warranties shall be deemed to apply to the leased motor vehicles; and

B. The consumer lessee shall be deemed to be the first purchaser of the motor vehicle for the purpose of any warranty provisions limiting warranty benefits to the original purchaser.

2. Lessee’s rights. The lessee of a motor vehicle has the same rights under this chapter against the manufacturer and any person making express warranties that the lessee would have under this chapter if the vehicle had been purchased by the lessee. The manufacturer and any person making express warranties have the same duties and obligations under this chapter with respect to the vehicle that the manufacturer and other person would have under this chapter if the goods had been sold to the lessee.

1169 State-certified, new car arbitration.

1. Neutral new car arbitration. All manufacturers shall submit to state-certified, new car arbitration if arbitration is requested by the consumer within 2 years from the date of original delivery to the consumer of a new motor vehicle or during the first 18,000 miles of operation, whichever comes first. State-certified arbitration shall be performed by one or more neutral arbitrators selected by the Department of the Attorney General operating in accordance with the rules promulgated pursuant to this chapter. The Attorney General may contract with an independent entity to provide arbitration or the Attorney General’s office may appoint neutral arbitrators. Each party to an arbitration is entitled to one rejection of a proposed arbitrator.

2. Written findings. Each arbitration shall result in a written finding of whether the motor vehicle in dispute meets the standards set forth by this chapter for vehicles that are required to be replaced or refunded. This finding shall be issued within 45 days of receipt by the Department of the Attorney General of a properly completed written request by a consumer for state-certified arbitration under this section. All findings of fact issuing from a state-certified arbitration shall be taken as admissible evidence of whether the standards set forth in this chapter for vehicles required to be refunded or replaced have been met in any subsequent action brought by either party ensuing from the matter considered in the arbitration. The finding reporting date may be extended by 5 days if the arbitrator seeks an independent evaluation of the motor vehicle.

3. Administered by Attorney General. The Department of the Attorney General shall promulgate rules governing the proceedings of state-certified arbitration which shall promote fairness and efficiency. These rules shall include, but are not limited to, a requirement of the personal objectivity of each arbitrator in the results of the dispute that that arbitrator will hear, and the protection of the right of each party to present its case and to be in attendance during any presentation made by the other party.

4. Consumer arbitration relief. If a motor vehicle is found by state-certified arbitration to have met the standards set forth in section 1163, subsection 2, for vehicles required to be replaced or refunded, and if the manufacturer of the motor vehicle is found to have failed to provide the refund or replacement as required, the manufacturer shall, within 21 days from the receipt of a finding, deliver the refund or replacement, including the costs and collateral charges set forth in section 1163, subsection 2, or appeal the finding in Superior Court. For good cause, a manufacturer may seek from the Department of the Attorney General an extension of the time within which it must deliver to the consumer a replacement vehicle.

5. Appeal of arbitration decision. No appeal by a manufacturer or consumer of the arbitrator’s findings may be heard unless the petition for appeal is filed with the Superior Court of the county in which the sale occurred, within 21 days of issuance of the finding of the state-certified arbitration.

In the event that any state-certified arbitration resulting in an award of a refund or replacement is upheld by the court, recovery by the consumer may include continuing damages up to the amount of $25 per day for each day subsequent to the day the motor vehicle was returned to the manufacturer, pursuant to section 1163, that the vehicle was out of use as a direct result of any nonconformity, not issuing from owner negligence, accident, vandalism or any attempt to repair or substantially modify the vehicle by a person other than the manufacturer, its agent or authorized dealer, provided that the manufacturer did not make a comparable vehicle available to the consumer free of charge.

In addition to any other recovery, any prevailing consumer shall be awarded reasonable attorney’s fees and costs. If the court finds that the manufacturer did not have any reasonable basis for its appeal or that the appeal was frivolous, the court shall double the amount of the total award to the consumer.

6. Consumer’s rights if arbitrator denies relief. The provisions of this chapter shall not be construed to limit or restrict in any way the rights or remedies provided to consumers under this chapter or any other state law. In addition, if any consumer is dissatisfied with any finding of state-certified arbitration, the consumer shall have the right to apply to the manufacturer’s informal dispute settlement procedure, if the consumer has not already done so, or may appeal that finding to the Superior Court of the county in which the sale occurred within 21 days of the decision.

7. Disclosure of consumer lemon law rights. A clear and conspicuous disclosure of the rights of the consumer under this chapter shall be provided by the manufacturer to the consumer along with ownership manual materials. The form and manner of these notices shall be prescribed by rule of the Department of the Attorney General. The notice disclosures shall not include window stickers.

8. Manufacturer’s failure to abide by arbitrator’s decision. The failure of a manufacturer either to abide by the decision of state-certified arbitration or to file a timely appeal shall entitle any prevailing consumer who has brought an action to enforce this chapter to an award of no less than 2 times the actual award, unless the manufacturer can prove that the failure was beyond the manufacturer’s control or can show it was the result of a written agreement with the consumer.

9. Consumer request for information. Upon request from the consumer, the manufacturer or dealer shall provide a copy of all repair records for the consumer’s motor vehicle and all reports relating to that motor vehicle, including reports by the dealer or manufacturer concerning inspection, diagnosis or test-drives of that vehicle and any technical reports, bulletins or notices issued by the manufacturer regarding the specific make and model of the consumer’s new motor vehicle as it pertains to any material, feature, component or the performance of the motor vehicle.

10. Penalties. It shall be prima facie evidence of an unfair trade practice under Title 5, chapter 10, for a manufacturer, within 21 days of receipt of any finding in favor of the consumer in state-certified arbitration, to fail to appeal the finding and not deliver a refund or replacement vehicle or not receive from the Department of the Attorney General an extension of time for delivery of the replacement vehicle.

11. New car arbitration account. To defray the costs of this program, a $1 arbitration fee shall be collected by the authorized dealer from the purchaser as part of the new motor vehicle sale agreement. Pursuant to rules adopted by the Secretary of State, this fee shall be forwarded annually by the dealer or its successor to the Secretary of State and deposited in the General Fund. At the end of each fiscal year, the Department of the Attorney General shall prepare a report listing the annual money generated and the expenses incurred in administering this arbitration program.

MARYLAND LEMON LAW LAWYERS

2008-12-13T03:40:00.000-08:00

MARYLAND LEMON LAW LAWYERS

Maryland Lemon Law
Maryland Commercial Law Code Annotated, ง 14-501 to ง 14-504

ง 14-1501.

(a) In this subtitle the following words have the meanings indicated.

(b) "Consumer" means:

(1) The purchaser, other than for purposes of resale, of a new motor vehicle;
(2) Any person to whom a new motor vehicle is transferred during the duration of the warranty applicable to such motor vehicle; or
(3) Any other person who is entitled to enforce the obligations of the warranty.

(c)

(1) "Motor vehicle" means a vehicle that is registered in this State as a:

(i) Class A (passenger) vehicle;
(ii) Class D (motorcycle) vehicle;
(iii) Class E (truck) vehicle with a 3/4 ton or less manufacturer's rated capacity; or
(iv) Class M (multipurpose) vehicle.

(2) "Motor vehicle" does not include a motor home. For the purpose of administering this subtitle, the Motor Vehicle Administration shall promulgate a regulation defining a motor home.

(d) "Dealer" has the meaning provided in ง 15-101(b) of the Transportation Article.

(e) "Manufacturer, factory branch, or distributor" means a person, partnership, association, corporation, or entity engaged in the business of manufacturing or assembling motor vehicles or of distributing motor vehicles to motor vehicle dealers as defined in ง 15-201(b), (c), and (e) of the Transportation Article.

(f) "Warranty" means warranties as defined in งง 2-312, 2-313, 2-314, and 2-315 of this article.

(g)

(1) "Manufacturer's warranty period" means the earlier of:

(i) The period of the motor vehicle's first 15,000 miles of operation; or
(ii) 15 months following the date of original delivery of the motor vehicle to the consumer.

(2) This subsection does not extend any manufacturer's express warranty.

ง 14-1502.

(a) If the manufacturer's warranty period is to include those miles of operation when the new motor vehicle is in the possession of any person other than the consumer, the manufacturer shall state that fact in 12 point bold face type in the manufacturer's written warranty.

(b)

(1) If a new motor vehicle does not conform to all applicable warranties during the warranty period, the consumer shall, during such period, report the nonconformity, defect, or condition by giving written notice to the manufacturer or factory branch by certified mail, return receipt requested. Notice of this procedure shall be conspicuously disclosed to the consumer in writing at the time of sale or delivery of the motor vehicle.
(2) The consumer shall provide an opportunity for the manufacturer or factory branch, or its agent to cure the nonconformity, defect, or condition.
(3) The manufacturer or factory branch, its agent, or its authorized dealer shall correct the nonconformity, defect, or condition at no charge to the consumer, even if repairs are made after the expiration of the warranty period. The corrections shall be completed within 30 days of the manufacturer's receipt of the consumer's notification of the nonconformity, defect, or condition.

(c)

(1) If, during the warranty period, the manufacturer or factory branch, its agent, or its authorized dealer is unable to repair or correct any defect or condition that substantially impairs the use and market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer or factory branch, at the option of the consumer, shall:

(i) Replace the motor vehicle with a comparable motor vehicle acceptable to the consumer; or
(ii) Accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price including all license fees, registration fees, and any similar governmental charges, less:

1. A reasonable allowance for the consumer's use of the vehicle not to exceed 15 percent of the purchase price; and
2. A reasonable allowance for damage not attributable to normal wear but not to include damage resulting from a nonconformity, defect, or condition.

(2) The manufacturer or factory branch shall make refunds under this section to the consumer and lienholder, if any, as their interests appear on the records of ownership maintained by the Motor Vehicle Administration.
(3) It is an affirmative defense to any claim under this section that the nonconformity, defect, or condition:

(i) Does not substantially impair the use and market value of the motor vehicle; or
(ii) Is the result of abuse, neglect, or unauthorized modifications or alterations of the motor vehicle.

(d) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable warranties if:

(1) The same nonconformity, defect, or condition has been subject to repair 4 or more times by the manufacturer or factory branch, or its agents or authorized dealers, within the warranty period but such nonconformity, defect, or condition continues to exist;
(2) The vehicle is out of service by reason of repair of 1 or more nonconformities, defects, or conditions for a cumulative total of 30 or more days during the warranty period; or
(3) A nonconformity, defect, or condition resulting in failure of the braking or steering system has been subject to the same repair at least once within the warranty period, and the manufacturer has been notified and given the opportunity to cure the defect, and the repair does not bring the vehicle into compliance with the motor vehicle safety inspection laws of the State.

(e) The term of any warranty, the warranty period, and the 30 day out of service period shall be extended by any time during which repair services are not available to the consumer by reason of war, invasion, strike, or fire, flood, or other natural disaster.

(f)

(1)

(i) It shall be the duty of a dealer to notify the manufacturer of the existence of a nonconformity, defect, or condition within 7 days when the motor vehicle is delivered to the same dealer for a fourth time for repair of the same nonconformity or when the vehicle is out of service by reason of repair of one or more nonconformities, defects, or conditions for a cumulative total of 20 days.
(ii) The notification shall be sent by certified mail and a copy of the notification shall be sent to the Motor Vehicle Administration; however, failure of the dealer to give the required notice required under this subsection shall not affect the consumer's right under this subtitle.

(2) If a motor vehicle is returned to a manufacturer or factory branch either under this subtitle, or by judgment, decree, arbitration award, or by voluntary agreement, the manufacturer or factory branch shall notify the Motor Vehicle Administration in writing within 15 days of the fact that the vehicle was returned.

(g)

(1)

(i) If a motor vehicle that is returned to the manufacturer under either this subtitle or by judgment, decree, arbitration award, settlement agreement, or by voluntary agreement in this or any other state and is then transferred to a dealer in Maryland, the manufacturer shall disclose this information to the dealer.
(ii) The manufacturer's disclosure under this paragraph shall be in writing on a separate piece of paper in 10 point all capital type and shall state in a clear and conspicuous manner:

1. That the motor vehicle was returned to the manufacturer or factory branch;
2. The nature of the defect, if any, that resulted in the return; and
3. The condition of the motor vehicle at the time that it is transferred to the dealer.

(2)

(i) If the returned vehicle is then made available for resale, the seller shall provide a copy of the manufacturer's disclosure form to the consumer prior to sale.
(ii) If the returned vehicle is sold, the seller shall send a copy of the manufacturer's disclosure form, signed by the consumer, to the Administration.

(h) This section does not limit the rights or remedies that are otherwise available to a consumer under any other law, including any implied warranties.

(i)

(1) If a manufacturer or factory branch has established an informal dispute settlement procedure which complies in all respects with the provisions of Title 16, Code of Federal Regulations, Part 703, as amended, a consumer may resort to that procedure before subsection (c) of this section applies.
(2) A consumer who has resorted to an informal dispute settlement procedure may not be precluded from seeking the rights or remedies available by law.

(j)

(1) Any agreement entered into by a consumer for the purchase of a new motor vehicle that waives, limits, or disclaims the rights set forth in this section shall be void.
(2) The rights available to a consumer under this section shall inure to a subsequent transferee of a new motor vehicle for the duration of the applicable warranties.

(k) Any action brought under this section shall be commenced within 3 years of the date of original delivery of the motor vehicle to the consumer.

(l)

(1) A court may award reasonable attorney's fees to a prevailing plaintiff under this section.
(2) If it appears to the satisfaction of the court that an action is brought in bad faith or is of a frivolous nature, the court may order the offending party to pay to the other party reasonable attorney's fees.

(m) This subtitle does not apply to a fleet purchase of five or more motor vehicles.

ง 14-1502.1.

(a) The Motor Vehicle Administration shall:

(1) Develop a notice that describes the rights provided to consumers under this subtitle;
(2) Make the notice available to all dealers that sell new motor vehicles in the State; and
(3) Adopt regulations as necessary to implement the provisions of this section.

(b) The notice shall:

(1) Be written in simple and readable plain language; and
(2) Contain sufficient detail to fully inform consumers about the rights and remedies available under this subtitle and the procedures to follow to enforce those rights and remedies.

(c) Each dealer that sells a new motor vehicle in the State shall provide to the purchaser, at the time of the sale or delivery of the motor vehicle, a copy of the notice developed by the Motor Vehicle Administration under this section.

ง 14-1503.

(a)

(1) If a dealer, manufacturer, factory branch, or distributor is required under a judgment, decree, arbitration award, or settlement agreement to accept, or by voluntary agreement accepts, return of a motor vehicle from a consumer, the consumer shall be entitled to recover from the Motor Vehicle Administration the excise taxes originally paid by the consumer, subject to subsection (b) of this section. (2)

(i) If a dealer, manufacturer, factory branch, or distributor replaces a motor vehicle with a comparable motor vehicle under ง 14-1502(c)(1)(i) of this subtitle, the Motor Vehicle Administration shall allow a credit against the excise tax imposed for the replacement vehicle in the amount of the excise taxes originally paid by the consumer for the returned vehicle, subject to subsection (b) of this section. (ii)

1. If the excise tax on the replacement vehicle exceeds the credit allowed under subparagraph (i) of this paragraph, the dealer shall collect only that portion of excise tax due; or
2. If the excise tax on the vehicle being replaced exceeds the excise tax on the replacement vehicle, the consumer shall be entitled to recover from the Motor Vehicle Administration the excess of the excise tax paid.

(b) The excise taxes that a consumer is entitled to recover under this section shall be calculated based on the amount of the purchase price or any portion of the purchase price of the motor vehicle that the dealer, manufacturer, factory branch, or distributor refunds to the consumer.

(c) A dealer, manufacturer, factory branch, or distributor who is required under a judgment, decree, arbitration award, or settlement agreement to accept, or who accepts, by voluntary agreement, return of a motor vehicle shall notify the consumer in writing that the consumer is entitled to recover the excise taxes from the Motor Vehicle Administration.

ง 14-1504.

(a) A violation of this subtitle shall be an unfair and deceptive trade practice under Title 13 of the Commercial Law Article.

(b) In addition to any other remedies that may be available under this subtitle, if a manufacturer, factory branch, or distributor is found to have acted in bad faith, the court may award the consumer damages of up to $10,000.

MASSACHUSETTS STATE LEMON LAWS

2008-12-13T03:39:00.001-08:00

MASSACHUSETTS STATE LEMON LAWS

Massachusetts Lemon Law
Massachusetts Annotated Laws Ch. 90 ง 7N

90:7N Voiding contracts of sale.

Notwithstanding any disclaimer of warranty, a motor vehicle contract of sale may be voided by the buyer if the motor vehicle fails to pass, within seven days from the date of such sale, the periodic staggered inspection at an inspection station licensed pursuant to section seven W; provided, that the defects which are the reasons for the failure to issue a certificate of inspection were not caused by the abusive or negligent operation of the motor vehicle or by damage resulting from an accident or collision occurring after the date of the sale; and provided, further, that the cost of repairs necessary to permit the issuance of a certificate of inspection exceeds ten per cent of the purchase price of the motor vehicle.

In order to void a motor vehicle sale under this section the buyer shall, within fourteen days from the date of sale, notify the seller of his intention to do so, deliver the motor vehicle to the seller, provide the seller with a written statement signed by an authorized agent of such inspection station stating the reasons why the motor vehicle failed to pass the safety or combined safety and emissions inspection and an estimate of the cost of necessary repairs. The buyer shall be entitled to a refund of his purchase price unless the buyer and seller agree in writing that the seller may make the necessary repairs at his own cost and expense within a reasonable period of time thereafter. This section shall apply only to motor vehicles purchased for the immediate personal or family use of the buyer.

90:7N.25 Express warranty by dealer of used motor vehicle.

Issuance; consumer's rights and remedies.

(1) For the purposes of this section the following words shall have the following meanings:

"Business day", Monday to Friday, inclusive, except for state or federal holidays.

"Consumer", a buyer, other than for purposes of resale, of a motor vehicle, any person to whom such motor vehicle is transferred during the period of any express or statutory warranty under this section applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce its obligations.

"Dealer", any person engaged in the business of selling, offering for sale, or negotiating the retail sale of used motor vehicles or selling motor vehicles as broker or agent for another, including the officers, agents and employees of such person and any combination or association of dealers, but not including a bank or other financial institution, or the commonwealth, its agencies, bureaus, boards, commissions, authorities, nor any of its political subdivisions. A person shall be deemed to be engaged in the business of selling used motor vehicles if such person has sold more than three used motor vehicles in the preceding twelve months.

"Motor vehicle" or "vehicle", any motor vehicle as defined in section one, sold or replaced by a dealer or manufacturer, except that it shall not include auto homes, vehicles built primarily for off-road use or any vehicle used primarily for business purposes.

"Private seller", any person who is not a dealer and who offers to sell or sells a used motor vehicle to a consumer.

"Purchase price", the total of all payments made for the purchase of a vehicle, including but not limited to any finance charges, registration fees, payments made for credit life, accident, health, and damage insurance, and collision and related comprehensive insurance coverage's and service contracts and the value of a trade-in.

"Repurchase price", the purchase price, as defined above, less any cash award that was made by the dealer in an attempt to resolve the dispute and was accepted by the consumer, and less any refunds or rebates to which the consumer is entitled, plus any incidental damages not previously reimbursed, including but not limited to the reasonable costs of towing from point of breakdown up to thirty miles to obtain required repairs or to return the vehicle under this section, and the reasonable costs of obtaining alternative transportation during the applicable warranty period after the second day following each such breakdown not to exceed fifteen dollars vehicle rental charges for each day in which the cost of such alternative transportation is reimbursable.

"Used motor vehicle" or "used vehicle", any vehicle driven more than the limited use necessary in moving or road testing a new vehicle prior to delivery to a consumer, including a demonstrator vehicle, except that it shall not include auto homes, vehicles built primarily for off road use, motorcycles, or any vehicle used primarily for business purposes.

(2)

(A)

(i) No used motor vehicle shall be sold in the commonwealth by a dealer to a consumer unless accompanied by an express written warranty covering the full cost of both parts and labor necessary to repair any defect that impairs the said used motor vehicle's safety or use; provided, however, that the consumer may be required to pay no more than one hundred dollars total toward the repair of any covered defect, series of defects or combination of defects during the warranty period. Defects that affect only appearance shall not be deemed to impair safety or use for the purposes of this section. For the purposes of this section, defect shall include defect, malfunction or any combination or defects or malfunctions.

(ii) Defects or malfunctions which involve parts or components that are covered or are warranted under an express warranty issued by the dealer of the used motor vehicle shall be excluded from this section if the following conditions have been met: the manufacturer's warranty has been duly assigned or transferred to the buyer; is enforceable according to its terms; is not inconsistent with this section; and, the seller has assured that the repair authorized by such manufacturer's express warranty was made.

The terms of the seller's warranty shall be tolled for any period of time the used motor vehicle is out of service by reason of repair under the manufacturer's warranty.

(B) The express warranties required by this section shall be of the following durations:

(i) For a used motor vehicle which, at the time of sale, has been operated less than forty thousand miles, ninety days or three thousand seven hundred and fifty miles, whichever occurs first. Said ninety days or three thousand seven hundred and fifty mile warranty is in addition to any right the consumer may have under section seven N.50.

(ii) For a used motor vehicle which, at the time of sale, has been operated forty thousand miles or more, but less than eighty thousand miles, sixty days or two thousand five hundred miles, whichever first occur.

(iii) For a used motor vehicle which, at the time of sale, has been operated eighty thousand miles or more, but less than one hundred and twenty-five thousand miles, thirty days or one thousand two hundred and fifty miles, whichever first occur.

(iv) If the used motor vehicle's true mileage is not known, such warranty period shall be determined by the age of said used motor vehicle in the following manner: a used motor vehicle three years old or less shall have a warranty as provided in clause (i); a used motor vehicle more than three, but less than six years old, shall have a warranty as provided in clause (ii); and a used motor vehicle six years old or more shall have a warranty as provided in clause (iii). A used motor vehicle's age shall be determined by subtracting its model year from the year in which the warranty holder purchased said used vehicle.

(C) The warranty periods established by this section shall be tolled during any period in which the used motor vehicle is out of service as a result of any repair attempt pursuant to any warranty created by this section. The applicable warranty period shall be extended thirty days from the date of completion of any repair required by this section as to the defect repaired if the warranty would otherwise have expired during such period.

(3)

(A) A dealer may repair, within the meaning of this section, either by performing the repair himself or by arranging and making payment for prompt repair by another.

(i) A consumer shall return a vehicle for repair under this section by presenting it to the dealer no later than five business days after the expiration of the applicable warranty period and informing him of the defect. Said return period shall be tolled during any time period in which the consumer has notified the dealer of the defect but cannot reasonably present the vehicle to the dealer; including, but not limited to, the reason that a used motor vehicle is inoperable and the dealer refuses to pay the charge to tow said vehicle. The dealer shall immediately accept return of a vehicle when it is so presented. Said used motor vehicle shall be deemed out of service commencing the day it is so presented, notwithstanding any dealer's failure to accept its return on said day. During the applicable warranty period and the aforesaid return period, the dealer shall pay the reasonable costs of towing from point of breakdown up to thirty miles to obtain required repairs or to return the vehicle to the dealer.

Upon return of the used motor vehicle to the consumer after repair, the dealer shall provide the consumer with a warranty repair receipt describing (a) the defect complained of, (b) the work performed in an attempt to correct such defect and the identity of the repairer if it is not the dealer, and (c) the parts replaced in performing such work. For the dealer to toll the ten business day period as provided in clause (ii) of this paragraph said dealer shall attach to each such warranty repair receipt copies of such order forms, invoices, receipts or other evidence of a parts order and its receipt to evidence his compliance with this paragraph.

(ii) If the dealer fails to repair the same defect within three attempts, or if the used motor vehicle is out of service for more than a cumulative total of ten business days after the consumer has returned it to the dealer for repair of the same, then the dealer shall accept return of the vehicle from the consumer and refund the full repurchase price, less a reasonable allowance for use. A reasonable allowance for use shall be fifteen cents for each mile the used motor vehicle has been operated between its sale and the dealer's repurchase.

A consumer shall have the option of retaining the use of any vehicle returned under the provisions of this section until such time as said consumer has been tendered a full refund. The use of any vehicle retained by a consumer after its return to a manufacturer under the provisions of this section, shall, in instances in which a refund is tendered, be reflected in the above-mentioned reasonable allowance for use.

A used motor vehicle shall not be considered out of service for purposes of the ten business-day period described hereinabove for any day in which a part necessary to repair a defect complained of is not in the dealer's possession; provided, however, that the dealer has ordered the part by reasonable means on the same day on which he knew or should have known that the part was necessary, except that in no event shall a part's unavailability operate to toll the ten business-day period for more than twenty-one days. The applicable warranty period shall be extended by the number of days a part is unavailable.

(iii) All dealers shall submit to state-certified, used car arbitration, if such arbitration is requested by the consumer, asserting his or her right to a repurchase under this section, within six months from the date of original delivery to such consumer of a used motor vehicle. State-certified, used car arbitration shall be performed by a professional arbitrator or arbitration firm appointed by the secretary of consumer affairs and business regulation and operating in accordance with the regulations promulgated pursuant to this section, and shall result in a written finding of whether the motor vehicle in dispute meets the standards set forth by this section for vehicles that are required to be repurchased. Said finding shall be issued within forty-five days of receipt by said secretary of a request by a consumer for state-certified arbitration under this section. Said secretary shall promulgate rules and regulations governing the proceedings of state-certified, used car arbitration which shall promote their fairness and efficiency. Such rules and regulations shall include, but not be limited to, a requirement of the personal objectivity of each such arbitrator, and the protection of the right of each party to present its case and to be in attendance during any presentation made by the other party.

If a motor vehicle is found by state-certified, used car arbitration to have met the standards set forth by this section for vehicles required to be repurchased, and if the dealer who sold said motor vehicle is found to have failed to provide said refund as required, such dealer shall, within twenty-one days from the issuance of such finding, deliver such refund, including the incidental and other costs set forth in the definition of "repurchase price" or appeal the finding in a district or superior court. No such appeal by a dealer shall be heard unless the petition for such appeal is filed with the clerk of the district or superior court within twenty-one days of issuance of the finding of the state-certified arbitration and is accompanied by a bond in a principal sum equal to the money award made by the state-certified arbitrator plus five hundred dollars for anticipated attorneys' fees, secured by cash or its equivalent, payable to the consumer.

Upon an appeal, the court shall vacate the award only if:

(a) the award was procured by corruption, fraud or other undue means;

(b) there was evident partiality by an arbitrator or corruption in any of the arbitrators, or misconduct prejudicing the rights of any party; or

In addition to any other rights and remedies, any consumer dissatisfied with any finding of state-certified, used car arbitration shall have the right to file a claim pursuant to chapter ninety-three A.

In addition to any other recovery, any prevailing consumer shall be awarded reasonable attorneys' fees and costs.

Whoever, within twenty-one days of any finding in favor of the consumer of the state-certified, used car arbitration, fails to appeal such finding and does not deliver a refund shall be punished by a fine of fifty dollars per day until the delivery of such refund. Said fine shall not exceed five hundred dollars for each such violation. The amount of said fine shall begin to accumulate on the twenty-second day following the arbitration decision. If eighty-one days has elapsed from the issuance of a finding in favor of the consumer of the state-certified, used car arbitration, and no appeal has been taken and no award delivered and no fine paid, the attorney general shall initiate proceedings against dealer for failure to pay said fine. The proceedings initiated pursuant to the provisions of this section shall be commenced in superior court department of the trial court.

In addition to the remedies hereinbefore provided, the attorney general may bring an action on behalf of the commonwealth to restrain further violation of this section, to enforce any provision, and for such other relief as may be appropriate.

(iv) At any time within the applicable warranty period and after a consumer has complained of a defect, notwithstanding any objection from the consumer, the dealer shall have the option of repurchasing a used vehicle and refunding the full repurchase price, less a reasonable allowance for use. A reasonable allowance for use shall be fifteen cents for each mile the used motor vehicle had been operated between its sale and the dealer's repurchase.

(v) If the dealer is required to or elects to repurchase a vehicle under the terms of this section, the consumer and dealer shall cooperate with each other to execute all necessary documents in order to clear the title of any encumbrances on the repurchased vehicle.

(B) It shall be an affirmative defense to any claim under this section that an alleged defect

(i) does not impair the vehicle's use or safety,

(ii) is the result of owner negligence, abuse, damage caused by accident, vandalism, or, an attempt to repair the vehicle by a person other than the dealer, the dealer's designee, or the manufacturer's representative under clause (ii) of paragraph (A) of subsection (2),

(iii) is the result of any attempt by the consumer to modify the vehicle,

(iv) was covered or warranted under an express warranty issued by the manufacturer of such used motor vehicle, that such warranty issued by the manufacturer of such used motor vehicle was in effect during the warranty period established by this section, so long as the conditions in said clause (ii) of said paragraph (A) of said subsection (2) are met.

(4) Clear and conspicuous notice of the warranties created by this section, of the rights pertaining thereto, and of the implied warranty of merchantability shall be given to the consumer in writing at the time the consumer purchases a used motor vehicle from the dealer. Failure to provide such notice shall toll the warranty periods under this section until such notice is given.

(5) The secretary of consumer affairs and business regulation shall promulgate rules and regulations to implement the notice provisions of this section. Said rules and regulations shall include the establishment of wording, format, placement, and distribution of all notices specified in this section. In her discretion, and in order to facilitate ease of understanding by consumers, said secretary may consolidate the notices required by this section and any other notices pertaining to the purchase of motor vehicles; provided, however, that such consolidation does not render the notices inconsistent with any of the provisions of this section or any other law. Each notice required by this section shall describe the procedures available to redress violations of this section and shall contain the telephone number of the attorney general's consumer protection division complaint section and the executive office of consumer affairs and business regulation.

(6) A dealer's failure to comply with any of the provisions of this section shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A.

(7) Notwithstanding any provisions of law to the contrary, this section shall not apply to any used motor vehicle sold by a dealer to a consumer for less than seven hundred dollars.

(8) A private seller shall clearly disclose to any prospective buyer, before the sale is completed, all defects the seller knows of which impair the used motor vehicle's safety or substantially impair its use. Failure to so disclose known defects shall entitle the buyer, within thirty days after the sale, to rescind the sale and be entitled to return of all monies paid to the seller less a reasonable amount for use as defined in clause (iv) of paragraph (A) subsection (3). In any subsequent action by a buyer under this section, if the court finds that the settlement offer was unreasonable in light of the circumstances or that the private seller has otherwise failed to comply with the requirements of this subsection, in addition to damages, it shall award the buyer reasonable attorneys' fees and costs; if the court finds that the buyer's action was frivolous or not in good faith, it shall award the seller reasonable attorneys' fees and costs. It shall be an affirmative defense in any such action that an alleged defect does not impair the vehicle's safety, or substantially impair its use, or that it is the result of the buyer's negligence, abuse, damage caused by accident, vandalism or attempt to modify the vehicle.

(9) Nothing in this section shall be construed in any way to limit the enforceability of any implied warranties created by law, any rights created by section seven N or seven N.50 or chapter ninety-three A or any rules and regulations promulgated pursuant thereto, or express warranties given by a dealer in connection with the sale of a used motor vehicle, or any other rights or remedies available to consumers under applicable law.

(10) If a consumer is eligible for relief under the provisions of section seven N.50 to have repairs effected or other relief provided under the provisions of an express warranty covering such used motor vehicle issued by the manufacturer of such used motor vehicle, said consumer shall make reasonable effort in accordance with the terms and conditions thereof to obtain such relief or repairs before seeking enforcement of rights under this section. If the consumer, notwithstanding his eligibility to do so, is unable to enforce rights under said section seven N.50 or under such express warranty and the dealer provides such relief or, in accordance with the provisions of this section, repurchases such used motor vehicle, the dealer shall be subrogated to the rights of such consumer against such manufacturer under the provisions of said section seven N.50, such express warranty and otherwise in accordance with applicable law, and may enforce the same in his name in the superior court or district court department. Such manufacturer shall hold the dealer harmless from and against all damages, liabilities, losses and reasonable expenses of suit, including reasonable attorneys' fees arising out of or incurred by the dealer by its compliance with the provisions of this section if such manufacturer, having been notified in writing by the dealer that such rights have been asserted by a consumer, fails to resolve the same at its own expense in or within seven business days.

(11) The licensing authorities responsible pursuant to section fifty-nine of chapter one hundred and forty for licensing used motor vehicle dealers shall distribute copies of this section to each dealer licensed at any time a license is granted or renewed.

(12) The provisions of this section shall not apply to the sale of a leased vehicle by a lessor to the lessee of said vehicle, a family member or employee of said lessee or to the sale of a used motor vehicle by an employer to his employee.

(13) Any action brought pursuant to this section shall be commenced within two years of the date of original delivery of the used motor vehicle to the consumer.

90:7N.50 Defective or malfunctioning new motor vehicles.

Sale and repair or replacement.

(1) For purposes of this section the following terms shall have the following meanings:

"Business day", any day during which the service departments of authorized dealers of the manufacturer of the motor vehicle are normally open for business.

"Consumer", a buyer or lessee, other than for purposes of resale, of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of any express or implied warranty applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce its obligations.

"Dealer", any class one seller of motor vehicles as defined in section fifty-eight of chapter one hundred and forty.

"Lessee", any person who acquires the right to possession of and use of a motor vehicle under a lease agreement for a term of not less than one year.

"Manufacturer", any person who is engaged in the business of manufacturing motor vehicles, or, in the case of motor vehicles not manufactured in the United States, any person who is engaged in the business of importing motor vehicles.

"Motor vehicle" or "vehicle", any motor vehicle as defined in section one sold, leased or replaced by a dealer or manufacturer after the effective date of this section, except that it shall not include auto homes, vehicles built primarily for off-road use or any vehicle used primarily for business purposes.

"Nonconformity", any specific or generic defect or malfunction, or any concurrent combination of such defects or malfunctions that substantially impairs the use, market value or safety of a motor vehicle.

"Term of protection", one year or fifteen thousand miles of use from the date of original delivery of a new motor vehicle, whichever comes first; or, in the case of a replacement vehicle provided by a manufacturer to a consumer under this section, one year or fifteen thousand miles from the date of delivery to the consumer of said replacement vehicle, whichever comes first.

(2) If a motor vehicle does not conform to any applicable express or implied warranty, and the consumer reports the nonconformity to the manufacturer of the vehicle, its agent or its authorized dealer during the term of protection, the manufacturer, its agent or its authorized dealer shall effect such repairs as are necessary to conform the vehicle to such warranty.

If the manufacturer, its agent or authorized dealer does not conform the motor vehicle to any such applicable express or implied warranty by curing any nonconformity after a reasonable number of attempts, the manufacturer shall accept return of the vehicle from the consumer. In instances in which a vehicle is sold and subsequently returned, the manufacturer shall refund the full contract price of the vehicle including all credits and allowances for any trade-in vehicle, less any cash award that was made by the manufacturer in an attempt to resolve the dispute and was accepted by the consumer, and a reasonable allowance for use, or shall offer to replace the vehicle. In instances in which a vehicle is leased and subsequently returned, the manufacturer shall refund all payments made by the consumer to the manufacturer under the terms of the lease agreement less any cash award that was made by the manufacturer in an attempt to resolve the dispute and was accepted by the consumer, and a reasonable allowance for use, or shall offer to replace the vehicle. The consumer shall have an unqualified right to reject a manufacturer's offer of replacement and demand a refund. In instances in which a vehicle is replaced by a manufacturer under the provisions of this section, said manufacturer shall reimburse the consumer for any fees for the transfer of registration or any sales tax incurred by the consumer as a result of such replacement. In instances in which a leased vehicle is replaced by a manufacturer under the terms of this section, an identical model vehicle shall be provided to the consumer for the remaining term of the original lease agreement. In instances in which a vehicle which was financed by the manufacturer or its subsidiary or agent is replaced under the provisions of this section, said manufacturer, subsidiary or agent shall not require the consumer to enter into any refinancing agreement which would create any financial obligations upon such consumer beyond those implied by the original financing agreement. In instances in which a vehicle which was leased from a dealer or manufacturer is replaced under the provisions of this section, said dealer or manufacturer shall not require the consumer to enter into any lease agreement which would create any financial obligations upon such consumer beyond those implied by the original lease agreement. In instances in which a refund is tendered under the provisions of this section, the manufacturer shall also reimburse the consumer for incidental costs including sales tax, registration fee, finance charges and any cost of options added by an authorized dealer. Whenever a vehicle is replaced a refund is given under the provisions of this section, in instances in which towing services and rental vehicles were not made available at no cost to the consumer, the manufacturer shall also reimburse the consumer for towing and reasonable rental costs that were a direct result of vehicle nonconformity. Refunds shall be made to the consumer and lien holder, if any, as their interests may appear. A reasonable allowance for use for all motor vehicles other than motorcycles shall be obtained by multiplying the total contract price of the vehicle, or in the case of a leased vehicle the total amount of payments made by the consumer to the manufacturer under the terms of the lease agreement, by a fraction having as its denominator one hundred thousand and having as its numerator the number of miles that vehicle traveled prior to the manufacturer's acceptance of its return. A reasonable allowance for use for motorcycles shall be obtained by multiplying the total contract price of the motorcycle by a fraction having as its denominator twenty-five thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer's acceptance of its return.

It shall be an affirmative defense to any claim under this section:

(i) that an alleged nonconformity does not substantially impair the use, market value or safety of the vehicle;

(ii) that a nonconformity is the result of owner negligence, damage caused by accident, vandalism, or attempt to repair the vehicle by a person other than the manufacturer, its agent or authorized dealer; or

(iii) that a nonconformity is the result of any attempt substantially to modify the vehicle which was not authorized by the manufacturer.

A consumer shall have the option of retaining the use of any vehicle returned under the provisions of this section until such time as said consumer has been tendered a full refund or a replacement that is acceptable to the consumer. The use of any vehicle retained by a consumer after its return to a manufacturer under the provisions of this section, shall, in instances in which a refund is tendered, be reflected in the above mentioned reasonable allowance for use.

(4) A reasonable number of attempts shall be deemed to have been undertaken to conform a motor vehicle to any applicable express or implied warranties if

(a) the same nonconformity has been subject to repair three or more times by the manufacturer or its agents or authorized dealers within the term of protection, but such nonconformity continues to exist or such nonconformity has recurred within the term of protection, or

(b) the vehicle is out of service by reason of repair of any nonconformity for a cumulative total of fifteen or more business days during the term of protection; provided, however, that the manufacturer shall be afforded one additional opportunity, not to exceed seven business days, to cure any nonconformity arising during the term of protection, notwithstanding the fact that such additional opportunity to cure commences after the term of protection. Such additional opportunity to cure shall commence on the day the manufacturer first knows or should have known that the limits specified in clause (a) or (b) have been met or exceeded. The term of protection, said fifteen business day period and said additional opportunity to cure shall be extended by any period of time during which repair services are not available to the consumer as a direct result of a war, invasion, fire, flood or other natural disaster. The term of protection, said fifteen business day period and said additional opportunity to cure shall also be extended by that period of time during which repair services are not available as a direct result of a strike; provided, however, that the manufacturer, its agent, or authorized dealer provides or makes provision for the free use of a vehicle to any consumer whose vehicle is out of service by reason of repair during a strike. The burden shall be on the manufacturer to show that any event claimed as a reason for an extension under the provisions of this paragraph was the direct cause for the failure of the manufacturer, its agent or authorized dealer to cure any nonconformity during the time of said event. Extensions for concurrent events shall not be cumulative.

(5) Nothing in this section shall be construed as imposing any liability on an authorized dealer or creating any cause of action by a consumer against a dealer under the provisions of this section.

Nothing in this section shall be construed to limit the rights or remedies which are otherwise available to a consumer or manufacturer under any other applicable provision of law.

Nothing in this section shall be construed as imposing any liability on a dealer or creating a cause of action by a manufacturer against its authorized dealer under this section except with respect to

(i) failure by an authorized dealer to properly effect preparation, installation of options or repairs when such preparation, installation of options or repairs would have prevented the occurrence of or cured a nonconformity;

(ii) express warranties offered by an authorized dealer which exceed the provisions of the manufacturer's express warranties; and

(iii) that portion of the cost of reimbursing a consumer for dealer-added options which represents the dealer profit from the addition of such options. The manufacturer shall reimburse its authorized dealer for all incidental and consequential damages, including attorney's fees, incurred by such dealer as a direct result of any legal action brought by a consumer under this section.

No consumer shall be required by any manufacturer, its agent or its authorized dealer to give notice directly to a manufacturer of the existence of any nonconformity before resorting to state-certified, new car arbitration.

No motor vehicle that is returned to the manufacturer under the provisions of this section shall be resold in the commonwealth without clear and conspicuous written disclosure of the fact that it was so returned prior to resale of the vehicle. The attorney general shall prescribe the exact form and content of any such disclosure statement.

(6) All manufacturers shall submit to state-certified, new car arbitration, if such arbitration is requested by the consumer within eighteen months from the date of original delivery to such consumer of a new motor vehicle. State-certified, new car arbitration shall be performed by a professional arbitrator or arbitration firm appointed by the secretary of consumer affairs and business regulation and operating in accordance with the regulations promulgated pursuant to this section, and shall result in a written finding of whether the motor vehicle in dispute meets the standards set forth by this section for vehicles that are required to be replaced or refunded. Said finding shall be issued within forty-five days of receipt by said secretary of a request by a consumer for state-certified arbitration under this section. Said secretary shall promulgate rules and regulations governing the proceedings of state-certified, new car arbitration which shall promote their fairness and efficiency. Such rules and regulations shall include, but not be limited to, a requirement of the personal objectivity of each arbitrator in the results of the dispute he will hear, and the protection of the right of each party to present its case and to be in attendance during any presentation made by the other party. All findings of fact issuing from a state-certified, new car arbitration shall be taken as prima facie evidence of whether the standards set forth in this section for vehicles required to be refunded or replaced have been met in any subsequent action brought by either party ensuing from the matter considered in said arbitration.

If a motor vehicle is found by state-certified, new car arbitration to have met the standards set forth by this section for vehicles required to be replaced or refunded, and if the manufacturer of said motor vehicle is found to have failed to provide said refund or replacement as required, such manufacturer shall, within twenty-one days from the issuance of such finding, deliver such refund or replacement, including the incidental and other costs set forth in subsection (3), or appeal the finding in superior court. No appeal by a manufacturer shall be heard unless the petition for such appeal is filed with the clerk of the superior court within twenty-one days of issuance of the finding of the state-certified arbitration and is accompanied by a bond in a principal sum equal to the money award made by the state-certified arbitrator plus two thousand five hundred dollars for anticipated attorneys' fees, secured by cash or its equivalent, payable to the consumer.

The liability of the surety of any bond filed pursuant to this section shall be limited to the indemnification of the consumer in the action. Such bond shall not limit or impair any right of recovery otherwise available pursuant to law, nor shall the amount of the bond be relevant in determining the amount of recovery to which the consumer shall be entitled. In the event that any state-certified arbitration, resulting in an award of a refund or replacement, is upheld by the court, recovery by the consumer shall include continuing damages in the amount of twenty-five dollars per day for each day, subsequent to the day the motor vehicle was returned to the manufacturer pursuant to subsection three, that said vehicle was out of use as a direct result of any nonconformity not issuing from owner negligence, accident, vandalism, or any attempt to repair or substantially modify the vehicle by a person other than the manufacturer, its agent or authorized dealer; provided, however, that the manufacturer did not make a comparable vehicle available to the consumer free of charge. In addition to any other recovery, any prevailing consumer shall be awarded reasonable attorneys' fees and costs. If the court finds that the manufacturer did not have any reasonable basis for its appeal or that the appeal was frivolous, the court shall double the amount of the total award made to the consumer. Any consumer dissatisfied with any finding of state-certified, new car arbitration shall have the right to file a claim pursuant to chapter ninety-three A.

(6A) A clear and conspicuous listing of the rights of the consumer under this section shall be affixed by a sticker to a window of each new motor vehicle offered for sale or lease in the commonwealth. An enumeration of these rights shall also be provided along with ownership manual materials. The form and manner of these notices shall be prescribed by the secretary of consumer affairs and business regulations.

(7) Failure to comply with any of the provisions of this section shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A. The failure of a manufacturer either to abide by the decision of a state-certified arbitration or to file a timely appeal shall entitle any prevailing consumer to an award of no less than two times the actual damages, unless said manufacturer can prove that such failure was beyond his control. For the purposes of said chapter ninety-three A, the timely delivery by a manufacturer of a refund or acceptable replacement, pursuant to a finding by state-certified arbitration, shall constitute the granting of relief upon demand.

The secretary of consumer affairs and business regulation shall inform the office of the attorney general of any method, act or practice of which she is aware that is deemed by her to be a violation of any provision of this section.

(8) Whoever, within twenty-one days of any finding in favor of the consumer of the state-certified, new car arbitration, fails to appeal such finding and does not deliver a refund or replacement vehicle or notify the consumer of the estimated delivery date of the replacement vehicle, shall be punished by a fine of five thousand dollars per day until the delivery of such refund or replacement. The estimated delivery date shall not exceed sixty days from the date the manufacturer notifies the consumer that a delivery will be made. Said fine shall not exceed fifty thousand dollars for each such violation. The amount of said fine shall begin to accumulate on the twenty-second day following the arbitration decision. If eighty-one days has elapsed from the issuance of a finding in favor of the consumer of the state-certified, new car arbitration and no appeal has been taken and no award delivered and no fine paid, the attorney general shall initiate proceedings against said manufacturer for failure to pay said fine. The proceedings initiated pursuant to the provisions of this section shall be commenced in superior court department of the trial court.

MICHIGAN STATE LEMON LAWS:

2008-12-13T03:38:00.002-08:00

MICHIGAN STATE LEMON LAWS:

Michigan Lemon Law
Michigan Compiled Laws Annotated งง 257.1401-1410

257.1401 Definitions.

As used in this act:

(a) "Consumer" means 1 or more of the following:

(i) A person who purchases or leases a new motor vehicle for personal, family, or household use and not for the purpose of selling or leasing the new motor vehicle to another person.

(ii) A person who purchases or leases less than 10 new motor vehicles a year.

(iii) A person who purchases or leases 10 or more new motor vehicles a year only if the vehicles are purchased or leased for personal, family, or household use.

(iv) Any other person entitled to enforce the provisions of an express warranty pursuant to the terms of that warranty.

(b) "Lessee" means a person who, under a lease, acquires the right to possession and use of a new motor vehicle.

(d) "Manufacturer" means any person who manufactures, assembles, or is a distributor of new motor vehicles and includes an agent of a manufacturer but does not include a new motor vehicle dealer.

(e) "Manufacturer's express warranty" means an express warranty as determined under the uniform commercial code, 1962 PA 174, MCL 440.1101 to 440.11102, offered by the manufacturer on a new motor vehicle.

(f) "Motor vehicle" means a motor vehicle as defined in section 33 of the Michigan vehicle code,1949 PA 300, MCL 257.33, that is designed as a passenger vehicle, or sport utility vehicle, but does not include a motor home, bus, truck other than a pickup truck or van, or a vehicle designed to travel on less than 4 wheels.

(g) "New motor vehicle" means a motor vehicle that is purchased or leased in this state or purchased or leased by a resident of this state and is covered by a manufacturer's express warranty at the time of purchase or lease.

(h) "New motor vehicle dealer" means a person or that person's agent who holds a dealer agreement for the sale of new motor vehicles, who is engaged in the business of purchasing, leasing, selling, exchanging, or dealing in new motor vehicles, and who has an established place of business in this state.

(i) "Person" means a natural person, a sole proprietorship, partnership, corporation, association, unit or agency of government, trust, estate, or other legal entity.

(j) "Resident of this state" means as follows:

(i) For an individual, an individual who is a legal resident of this state.

(ii) For a sole proprietorship or partnership, a sole proprietorship or partnership created pursuant to the laws of this state and its main office is located in this state.

(iii) For a corporation, a corporation that is a domestic corporation and was created under the laws of this state.

(iv) For an association, an association created pursuant to the laws of this state and its main office is located in this state.

(v) For a unit or agency of government, a unit or agency of government located in this state.

(vi) For a trust, estate, or other legal entity, a trust, estate, or other legal entity created pursuant to the laws of this state and that is located in this state.

(k) "Lease price" means the actual vehicle sales price paid by the lessor including any cash payment by the consumer and the sum equal to any allowance for any trade-in but excludes debt from any other transaction as well as any manufacturer to consumer discount, rebate, or incentive appearing in the agreement or contract that the consumer received or that was applied to reduce the purchase or lease cost. Additionally, any sales tax, license and registration fees, and similar government charges not included elsewhere paid by the lessor on behalf of the lessee are included as a part of lease price.

(l) "Purchase price" means the actual vehicle sales price listed on the buyer's order including any cash payment by the consumer and the sum equal to any allowance for any trade-in but excludes debt from any other transaction as well as any manufacturer to consumer discount, rebate, or incentive appearing in the agreement or contract that the consumer received or that was applied to reduce the purchase cost. Additionally, any sales tax, license and registration fees, and similar government charges not included elsewhere paid by the consumer are included as a part of purchase price.

257.1402 Repair of defect or condition; report.

If a new motor vehicle has any defect or condition that impairs the use or value of the new motor vehicle to the consumer or which prevents the new motor vehicle from conforming to the manufacturer's express warranty, the manufacturer or a new motor vehicle dealer of that type of motor vehicle shall repair the defect or condition as required under section 3 if the consumer initially reported the defect or condition to the manufacturer or the new motor vehicle dealer within 1 of the following time periods, whichever is earlier:

(a) During the term the manufacturer's express warranty is in effect.

(b) Not later than 1 year from the date of delivery of the new motor vehicle to the original consumer.

257.1403 Replacement of motor vehicle or refund.

Allowance for use; reimbursement for towing costs and costs for rental vehicle; consent to replacement of security interest; presumption; performing repairs after expiration of warranty; extension of time for repair services.

(1) If a defect or condition that was reported to the manufacturer or new motor vehicle dealer pursuant to section 2 continues to exist and the new motor vehicle has been subjected to a reasonable number of repairs as determined under subsection (5), the manufacturer shall within 30 days, do either of the following as applicable:

(a) If the new motor vehicle was purchased, either replace the new motor vehicle with a comparable replacement motor vehicle currently in production and acceptable to the consumer or accept return of the vehicle and refund to the consumer the purchase price. A consumer shall have the right to demand a refund.

(b) If the new motor vehicle was leased, the consumer has the right to a refund of the lease price paid by the consumer. The consumer may agree to accept a comparable replacement vehicle in lieu of a refund for the lease price paid. If the consumer agrees to accept a replacement vehicle, the lease agreement shall not be altered except with respect to the identification of the vehicle.

(2) The purchase price or lease price includes the cost of any options or other modifications installed or made by or for the manufacturer, and the amount of all other charges made by or for the manufacturer, less a reasonable allowance for the consumer's use of the vehicle, and less an amount equal to any appraised damage that is not attributable to normal use or to the defect or condition. A reasonable allowance for use is the purchase or lease price of the new motor vehicle multiplied by a fraction having as the denominator 100,000 miles and having as the numerator the miles directly attributable to use by the consumer and any previous consumer prior to his or her first report of a defect or condition that impairs the use or value of the new motor vehicle plus all mileage directly attributable to use by a consumer beyond 25,000 miles. If a vehicle is replaced or refunded under the provisions of this section, if towing services and rental vehicles were not made available without cost to the consumer, the manufacturer shall also reimburse the consumer for those towing costs and reasonable costs for a comparable rental vehicle that were incurred as a direct result of the defect or condition.

(3) If a court or an alternative dispute settlement procedure described in section 5 determines that a consumer has provided sufficient evidence that the vehicle did not provide reliable transportation for ordinary personal or household use for any period beyond the first 25,000 mileage usage period of the vehicle, the court or the alternative dispute settlement procedure may reduce the vehicle usage deduction for mileage beyond the first 25,000 mileage usage period only for the period beyond the 25,000 mileage usage period that the court or alternative dispute settlement procedure determines that the vehicle did not provide useful transportation for ordinary personal or household use. To determine if the vehicle did or did not provide useful transportation for ordinary personal and household use, the court or the alternative dispute settlement procedure shall consider all of the following:

(a) The number of repairs.

(b) The cost of the repairs.

(d) Whether the vehicle's need for repair significantly affected the consumer's ability to use the vehicle for personal or household functions.

(4) The provisions of this act do not affect the obligations of a consumer under a loan, sales, or lease contract or the secured interest of a secured party. The secured party shall consent to the replacement of the security interest with a corresponding security interest on a replacement motor vehicle that is accepted by the consumer in exchange for the motor vehicle having a defect or condition pursuant to subsection (1), if the replacement motor vehicle is comparable in value to the original motor vehicle. If for any reason the security interest in the new motor vehicle having a defect or condition pursuant to subsection (1) is not able to be replaced with a corresponding security interest on a new motor vehicle accepted by the consumer, the consumer shall accept a refund. A refund required under this subsection or subsection (1) shall be made to the consumer and the secured party, if any, as their interests exist at the time the refund is to be made. The lessor, if any, shall be notified if a refund is made to a lessee under this act. A lessor shall not assess a fee for early termination of a lease under this act.

(5) It shall be presumed that a reasonable number of attempts have been undertaken to repair a defect or condition if 1 of the following occurs:

(a) The same defect or condition that substantially impairs the use or value of the new motor vehicle to the consumer has been subject to repair a total of 4 or more times by the manufacturer or new motor vehicle dealer within 2 years of the date of the first attempt to repair the defect or condition, and the defect or condition continues to exist. Any repair performed on the same defect made pursuant to subsection (6) shall be included in calculating the number of repairs under this section. The consumer or his or her representative, before availing himself or herself of a remedy provided under subsection (1), and any time after the third attempt to repair the same defect or condition, shall give written notification, by return receipt service, to the manufacturer of the need for repair of the defect or condition in order to allow the manufacturer an opportunity to cure the defect or condition. The manufacturer shall notify the consumer as soon as reasonably possible of a reasonably accessible repair facility. After delivery of the vehicle to the designated repair facility, the manufacturer has 5 business days to repair the defect or condition.

(b) The new motor vehicle is out of service because of repairs for a total of 30 or more days or parts of days during the term of the manufacturer's express warranty, or within 1 year from the date of delivery to the original consumer, whichever is earlier. The consumer, or his or her representative, before availing himself or herself of a remedy provided under subsection (1), and after the vehicle has been out of service for at least 25 days in a repair facility, shall give written notification by return receipt service to the manufacturer of the need for repair of the defect or condition in order to allow the manufacturer an opportunity to cure the defect or condition. The manufacturer shall notify the consumer as soon as reasonably possible of a reasonably accessible repair facility. After delivery of the vehicle to the designated repair facility, the manufacturer has 5 business days to repair the defect or condition.

(6) Any repairs required to be made under this act shall be made even if the repairs need to be performed after the expiration of the manufacturer's express warranty. The defect needing repair must be a continuation of the original attempt to repair the defect.

(7) The term of an express warranty, and the 1-year, 30-day, and 5-day periods of time provided for in this section shall be extended because repair services were not available to the consumer because of war, invasion, strike, fire, flood, or other natural disaster.

257.1404 Other legal remedies not limited or prohibited.

Nothing in this act shall be construed to limit or prohibit any other legal remedy of a consumer regarding a breach of a manufacturer's express warranty or an implied warranty for a new motor vehicle.

257.1405 Informal dispute settlement procedure.

If a manufacturer has established or participates in an informal dispute settlement procedure, the provisions of this act shall not apply to any consumer who has not first resorted to such procedure, if such procedure does all of the following:

(a) Complies with the Magnuson-Moss warranty--federal trade commission improvement act, Public Law 93-637, 88 Stat. 2183, and 16 C.F.R. 703 (1975). An informal dispute settlement procedure which the federal trade commission rules does not comply with 16 C.F.R. 703 (1975) shall be considered as not meeting the requirements of this subdivision.

(b) Requires that the manufacturer is bound by any decision reached if the consumer agrees to it.

(c) Provides that the consumer is not obligated to accept the decision and may pursue the remedies provided for under this act.

(d) Requires the manufacturer to initiate the process necessary to implement any final settlement not more than 30 days after the settlement has been reached.

257.1406 Defects or conditions to which act inapplicable.

This act does not apply to a defect or condition that is the result of either of the following:

(a) A modification not installed or made by or for the manufacturer.

(b) Abuse or neglect of the new motor vehicle or damage due to an accident that occurred after the new motor vehicle was purchased or leased by the consumer.

257.1407 Waiver of rights and remedies prohibited; recovery of costs, expenses, and attorneys' fees.

(1) Any rights and remedies provided a consumer under this act may not be waived.

(2) A consumer who prevails in any action brought under this act may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses, including attorneys' fees based on actual time expended by the attorney, determined by the court to have been reasonably incurred by the consumer for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.

257.1408 Written statement to be included with title; type size; form.

(1) Until December 31, 1999 and after as provided in subsection (2), the secretary of state shall include with any title for a new motor vehicle a written statement, in 10-point boldfaced type, in substantially the following form:

"IMPORTANT: IF THIS VEHICLE IS DEFECTIVE YOU MAY BE ENTITLED UNDER STATE LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE. TO OBTAIN REPLACEMENT OR A REFUND, YOU MUST FIRST REPORT THE DEFECT IN WRITING TO THE MANUFACTURER AND YOU MAY BE REQUIRED TO FIRST ARBITRATE THE DISPUTE. IN ORDER TO PROTECT YOUR RIGHTS UNDER THIS LAW, YOU SHOULD:

1. KEEP COPIES OF ALL CORRESPONDENCE TO AND FROM THE MANUFACTURER AND THE DEALER.

2. KEEP COPIES OF ALL WORK ORDERS FOR REPAIRS ON THE VEHICLE INCLUDING THE DATE(S) THE WORK WAS PERFORMED AND THE MILEAGE ON THE VEHICLE AT THE TIME OF REPAIR.

3. FOLLOW ALL REQUIREMENTS OF THE WARRANTY, INCLUDING ANY REQUIREMENT THAT THE REPAIRS MUST BE DONE BY AN AUTHORIZED DEALER SPECIFIED BY THE MANUFACTURER. IF YOU HAVE ANY QUESTIONS REGARDING YOUR RIGHTS UNDER THIS LAW, CONSULT AN ATTORNEY OR OTHER QUALIFIED INDIVIDUAL."

(2) Beginning January 1, 2000, the secretary of state shall include with documentation for a purchased or leased new motor vehicle a written statement, in 10-point boldfaced type, in substantially the following form:

"IMPORTANT: IF THIS VEHICLE IS DEFECTIVE YOU MAY BE ENTITLED UNDER STATE LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE OR LEASE PRICE, AS APPLICABLE. TO OBTAIN REPLACEMENT OR A REFUND, YOU MUST FIRST REPORT THE DEFECT IN WRITING TO THE MANUFACTURER AND YOU MAY BE REQUIRED TO FIRST ARBITRATE THE DISPUTE. IN ORDER TO PROTECT YOUR RIGHTS UNDER THIS LAW, YOU SHOULD:

1. KEEP COPIES OF ALL CORRESPONDENCE TO AND FROM THE MANUFACTURER AND THE DEALER.

2. KEEP COPIES OF ALL WORK ORDERS FOR REPAIRS ON THE VEHICLE INCLUDING THE DATE(S) THE WORK WAS PERFORMED AND THE MILEAGE ON THE VEHICLE AT THE TIME OF REPAIR.

(3) Beginning January 1, 2000, the secretary of state shall include a summary of the provisions of this act on a database that is accessible to the public through the internet. As used in this section, "internet" means a worldwide interconnection of individual computers and computer networks and the facilities and equipment used to access those interconnected networks.

257.1409 Applicability of act.

This act shall apply to all new motor vehicles that are sold to the original consumer on or after the effective date of this act.

257.1410 Effect.

This act shall take effect 60 days after its enactment.