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South
Dakota Lemon Law Statutes
Title 32, Chapter 32-6D-1 - 11
§ 32-6D-1. Definitions.
Terms used in this chapter mean:
- "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;
- "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;
- "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 twelve thousand miles of operation,
whichever first occurs;
- "Manufacturer," the person, firm or corporation
engaged in the business of manufacturing, importing or distributing
motor vehicles to be made available to a motor vehicle dealer
for retail sale;
- "Motor vehicle," every vehicle intended primarily
for use and operation on the public highways which is self-propelled.
The term does not apply to any motor home or to any motor vehicle
having a manufacturer's gross vehicle weight rating of ten thousand
pounds or more;
- "Motor vehicle dealer" or "authorized dealer," any
person operating under a dealer agreement from a manufacturer
and licensed pursuant to chapter 32-6B;
- "Nonconforming condition," any condition of a motor
vehicle which is not in conformity with the terms of any express
warranty issued by the manufacturer to a consumer and which significantly
impairs the use, value or safety of the motor vehicle and 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 the
motor vehicle was delivered by an authorized dealer to the consumer;
- "Notice of a nonconforming condition," a written
statement delivered to the manufacturer and which describes the
motor vehicle, the nonconforming condition, and all previous
attempts to correct such nonconforming condition by identifying
the person who made the attempt and the time the attempt was
made.
§ 32-6D-2. Notice of nonconforming condition - Timeliness
- Obligation to repair.
If a new motor vehicle does not conform to any applicable express
warranty and the consumer delivers the motor vehicle to the manufacturer
or its authorized dealer and gives notice of the nonconforming
condition during the lemon law rights period, the manufacturer
of the motor vehicle shall make the necessary repairs to the
motor vehicle to remedy any such nonconforming condition. The
repairs are required even after the expiration of the lemon law
rights period if notice of the nonconforming condition was first
given during the lemon law rights period. However, the manufacturer's
obligation to repair the nonconforming condition does not extend
beyond the period of twenty-four months following delivery of
the vehicle or twenty-four thousand miles, whichever occurs first.
§ 32-6D-3. Replacement of unreparable vehicle - Refund.
If, after reasonable attempts, the manufacturer 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:
- The full contract price including charges for undercoating,
dealer preparation and transportation charges, and installed
options, plus the nonrefundable portions of extended warranties
and service contracts;
- All collateral charges, including excise tax, license and
registration fees and similar government charges;
- All finance charges incurred by the consumer after he first
reported the nonconformity to the manufacturer or its authorized
dealer; and
- 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.
§ 32-6D-4. Allowance for use of vehicle offset against monetary
recovery.
Refunds shall be made to the consumer and any lien holders, as
their interests may appear. There shall be offset against any
monetary recovery of the consumer a reasonable allowance for
the consumer's use of the vehicle. 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
or authorized dealer and shall be calculated by multiplying the
full purchase price of the motor vehicle by a fraction having
as its denominator one hundred thousand and having as its numerator
the number of miles that the vehicle traveled before the first
report of nonconformity.
§ 32-6D-5. Reasonable attempts to correct nonconforming condition.
It is presumed that reasonable attempts to correct a nonconforming
condition have been allowed by the consumer if, during the period
of twenty-four months following delivery of the vehicle or twenty-four
thousand miles, whichever first occurs, either of the following
events occurred:
- The same nonconforming condition was subject to repair attempts
four or more times by the manufacturer, 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
- The motor vehicle was out of service and in the custody of
the manufacturer 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 thirty
calendar days, unless the repair could not be performed because
of conditions beyond the control of the manufacturer or authorized
dealers, such as war, invasion, strike, fire, flood or other
natural disaster.
§ 32-6D-6. Civil action against manufacturer.
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 shall give notice of a nonconforming
condition by certified mail to the manufacturer and demand correction
or repair of the nonconforming condition. If at the time the
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 fourteen calendar days.
If a manufacturer has established an informal dispute settlement
procedure conducted within the state which is in compliance with
federal rules and regulations, a consumer shall 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.
§ 32-6D-7. Affirmative defenses to claim against manufacturer.
It is an affirmative defense to any claim against the manufacturer
under this chapter that:
- An alleged nonconforming condition does not significantly
impair the use, market value or safety of the motor vehicle;
or
- 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.
§ 32-6D-8. Attorney fees.
If the manufacturer has breached its obligations imposed under
this chapter, the consumer may recover, in addition to the remedy
provided under §§ 32-6D-2 to 32-6D-5, inclusive, an additional
award for reasonable attorney fees.
§ 32-6D-9. Resale of returned 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:
- 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; and
- The manufacturer returns the title of the motor vehicle to
the 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 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."
§ 32-6D-10. Liability of dealer.
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.
No manufacturer may charge back or require reimbursement by a
motor vehicle dealer or authorized dealer for any costs, including
any refunds or vehicle replacements, incurred by the manufacturer
arising out of this chapter.
§ 32-6D-11. Time limit for action.
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.
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The
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act is a Federal Law that protects the buyer of any product which costs more than $25 and comes with an express written warranty.
This law applies to any product that you buy that does not perform as it should.
Your car is a major investment, rationalized by the peace of mind that flows from its expected dependability and safety. Accordingly, you are entitled
to expect an automobile properly constructed and regulated to provide reasonably safe, trouble-free, and dependable transportation – regardless
of the exact make and model you bought. Unfortunately, sometimes these principles do not hold true and defects arise in automobiles. Although one defect
is not actionable, repeated defects are as there exists a generally accepted rule that unsuccessful repair efforts render the warrantor liable. Simply
put, there comes a time when “enough is enough” – when after having to take your car into the shop for repairs an inordinate number
of times and experiencing all of the attendant inconvenience, you are entitled to say, ‘That’s all,’ and revoke, notwithstanding the
seller’s repeated good faith efforts to fix the car. The rationale behind these basic principles is clear: once your faith in the vehicle is shaken,
the vehicle loses its real value to you and becomes an instrument whose integrity is impaired and whose operation is fraught with apprehension. The question
thus becomes when is “enough”?
As you know, enough is never enough from your warrantor’s point of view and you should simply continue to have your defective vehicle repaired – time
and time again. However, you are not required to allow a warrantor to tinker with your vehicle indefinitely in the hope that it may eventually be fixed.
Rather, you are entitled to expect your vehicle to be repaired within a reasonable opportunity. To this end, both the federal Moss Warranty Act, and
the various state “lemon laws,” require repairs to your vehicle be performed within a reasonable opportunity.
Under the Magnuson-Moss Warranty
Act, a warrantor should perform adequate repairs in at least two, and possibly three, attempts to correct a particular defect. Further, the Magnuson-Moss
Warranty Act’s reasonableness requirement applies to your vehicle as a whole rather than to each individual defect
that arises. Although most of the Lemon Laws vary from state to state, each individual law usually require a warrantor to cure a specific defect within
four to five attempts or the automobile as a whole within thirty days. If the warrantor fails to meet this obligation, most of the lemon laws provide
for a full refund or new replacement vehicle. Further, this reasonable number of attempts/reasonable opportunity standard, whether it be that of the
Magnuson-Moss Warranty Act or that of the Lemon Laws, is akin to strict liability – once this threshold has been met, the continued existence of
a defect is irrelevant and you are still entitled to relief.
One of the most important parts of the Magnuson-Moss Warranty Act is its fee shifting
provision. This provision provides that you may recover the attorney fees incurred in the prosecution of your case if you are successful – independent
of how much you actually win. That rational behind this fee shifting provision is to twofold: (1) to ensure you will be able to vindicate your rights
without having to expend large sums on attorney's fees and (2) because automobile manufacturers are able to write off all expenses of defense as a
legitimate business expense, whereas you, the average consumer, obviously does not have that kind of economic staying power. Most of the Lemon Laws contain
similar fee shifting provisions.
You may also derive additional warranty rights from the Uniform Commercial Code; however, the Code does not allow you
in most states to recover your attorney fees and is also not as consumer friendly as the Magnuson-Moss Warranty Act or the various state lemon laws.
The narrative information on Magnuson-Moss, UCC and lemon laws on these pages is provided by Marshall Meyers, attorney.
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Uniform
Commercial Code Summary
The Uniform Commercial Code or UCC has been enacted in all 50 states and some of the territories of the United States. It is the primary source of law
in all contracts dealing with the sale of products. The TARR refers to Tender, Acceptance, Rejection, Revocation and applies to different aspects of
the consumer's "relationship" with the purchased goods.
TENDER -
The tender provisions of the Uniform Commercial Code contained in Section2-601 provide that the buyer is entitled to reject any goods that fail in
any respect to conform to the contract. Unfortunately, new cars are often technically complex and their innermost workings are beyond the understanding
of the average new car buyer. The buyer, therefore, does not know whether the goods are then conforming.
ACCEPTANCE -
The new car buyer accepts the goods believing and expecting that the manufacturer will repair any problem he has with the goods under the warranty.
REJECTION
-
The new car buyer may discover a problem with the vehicle within the first few miles of his purchase. This would allow the new car buyer to reject
the goods. If the new car buyer discovers a defect in the car within a reasonable time to inspect the vehicle, he may reject the vehicle. This period
is not defined. On the one hand, the buyer must be given a reasonable time to inspect and that reasonable time to inspect will be held as an acceptance
of the vehicle. The Courts will decide this reasonable time to inspect based on the knowledge and experience of the buyer, the difficulty in discovering
the defect, and the opportunity to discover the defect.
The following is an example of a case of rejection: Mr. Zabriskie purchase a new 1966 Chevrolet Biscayne. After picking up the car on Friday evening,
while en route to his home 2.5 miles away, and within 7/10ths of a mile from the dealership, the car stalled and stalled again within 15 feet. Thereafter,
the car would only drive in low gear. The buyer rejected the vehicle and stopped payment on his check. The dealer contended that the buyer could not
reject the car because he had driven it around the block and that was his reasonable opportunity to inspect. The New Jersey Court said;
To the layman,
the complicated mechanisms of today's automobile are a complete mystery. To have the automobile inspected by someone with sufficient expertise to disassemble
the vehicle in order the discover latent defects before the contract is signed, is assuredly impossible and highly impractical. Consequently, the first
few miles of driving become even more significant to the excited new car buyer. This is the buyer's first reasonable opportunity to enjoy his new vehicle
to see if it conforms to what it was represented to be and whether he is getting what he bargained for. How long the buyer may drive the new car under
the guise of inspection of new goods is not an issue in the present case because 7/10th of a mile is clearly within the ambit of a reasonable opportunity
to inspect. Zabriskie Chevrolet, Inc. v. Smith, 240 A. 2d 195(1968)
It is suggested that Courts will tend to excuse use by consumers if possible.
REVOCATION -
What happens when the consumer has used the new car for a lengthy period of time? This is the typical lemon car case. The UCC provides that a buyer
may revoke his acceptance of goods whose non-conformity substantially impairs the value of the goods to him when he has accepted the goods without
discovery of a non-conformity because it was difficult to discover or if he was assured that non-conformities would be repaired. Of course, the average
new car buyer does not learn of the nonconformity until hundreds of thousands of miles later. And because quality is job one, and manufacturers are
competing on the basis of their warranties, the consumer always is assured that any noncomformities he does discover will be remedied.
What is a noncomformity substantially impairing the value of the vehicle?
- A noncomformity may include a number of relatively minor defects whose cumulative total adds up to a substantial impairment. This is the "Shake
Faith" Doctrine first stated in the Zabrisikie case. "For a majority of people the purchase of a new car is a major investment, rationalized
by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes,
but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension".
- A substantial noncomformity may include a failure or refusal to repair the goods under the warranty. In Durfee V. Rod Baxter Imports, the Minnesota
Court held that the Saab owner that was plagued by a series of of annoying minor defects and stalling, which were never repaired after a number of attempts,
could revoke, "if repairs are not successfully undertaken within a reasonable time", the consumer may elect to revoke.
- Substantial Non Conformity and Lemon Laws often define what may be considered a substantial impairment. These definitions have been successfully used
to flesh out the substantial impairment in the UCC.
Additional narrative information on Magnusson-Moss, UCC and lemon laws on these pages is provided by T. Michael Flinn, attorney.
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