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West
Virginia Lemon Law Statutes
Chapter 46a, § 6A 1-9
CHAPTER 46A, ARTICLE 6A
CONSUMER PROTECTION--NEW MOTOR VEHICLE WARRANTIES
§46A-6A-1. Legislative declarations
- The Legislature hereby finds and declares as a matter of
public policy that the purpose of this article is to place upon
the manufacturers of motor vehicles the duty to meet their obligations
and responsibilities under the terms of the express warranties
extended to the consumers in this state. The Legislature further
finds as a matter of public policy that the manufacturer shall
bear the total cost of performing any duty or responsibility
imposed by their warranties and the provisions of this article.
- The Legislature further finds that any agreement under the
provisions of article six-a, chapter seventeen-a of this code,
or any agreement hereafter amended or entered into between a
dealer and manufacturer which would transfer to the dealer any
duty, or all or any part of the cost of performing any duty imposed
on the manufacturer by the provisions of this article, or which
would directly or indirectly charge the dealer for or reduce
the payment or reimbursement due the dealer for performing work
or furnishing parts required by this article to be provided by
either the dealer or manufacturer, so as to shift to the dealer
all or any part of the cost of the manufacturer's compliance
with this article, to be against public policy, void and unenforceable.
§46A-6A-2. Definitions.
When used in this article, the following words, terms and phrases
shall have the meaning ascribed to them, except where the context
indicates a different meaning:
- "Consumer" means
the purchaser, other than for purposes of resale, of a new motor
vehicle purchased in this state, used primarily for personal,
family or household purposes, 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 and any
other person entitled by the terms of the warranty to enforce
the obligations of the warranty;
- "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 new motor vehicles;
- "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; and
- "Motor
vehicle" means any passenger automobile sold in this state,
including pickup trucks and vans subject to registration as a
Class A motor vehicle under the provisions of article ten, chapter
seventeen-a of this code, and any self-propelled motor vehicle
chassis of motor homes sold in this state subject to registration
as and Class A or Class B motor vehicle under the provisions
of article ten, chapter seventeen- a of this code.
§46A-6A-3. Manufacturer's duty to repair or replace new motor
vehicles.
- If a new motor vehicle purchased in this state on or after
the first day of January, one thousand nine hundred eighty-four,
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 express warranties
or during the period of one year following the date of original
delivery of the new motor vehicle to a consumer, whichever is
the later date, the manufacturer, its agent or its authorized
dealer shall make the repairs necessary to conform the vehicle
to the express warranties, notwithstanding the fact that the
repairs are made after the expiration of the warranty term.
-
If the manufacturer, its agents or its authorized dealer are
unable to conform the new motor vehicle to any applicable express
warranty by repairing or correcting any defect or condition which
substantially impairs the use or market value of the motor vehicle
to the consumer after a reasonable number of attempts, the manufacturer
shall, replace the new motor vehicle with a comparable new motor
vehicle which does conform to the warranties.
§46A-6A-3a. Dealer's duty to disclose repairs to consumer.
Beginning the first day of July, one thousand nine hundred eighty-nine,
all authorized dealers of new motor vehicles purchased in this
state shall provide to any consumer a written disclosure of any
repairs to a new motor vehicle which repairs have a retail value
of five hundred dollars or more and were performed after shipment
from the manufacturer to the dealer, including damage to the
new motor vehicle while in transit. This disclosure requirement
does not apply to identical replacement of stolen or damaged
accessories or their components, tires or antennae. For purposes
of this section, a motor vehicle is not a new motor vehicle when
it has been previously titled or the motor vehicle has been damaged
in such a manner that, were the damage not repaired, the value
and usability of the motor vehicle would be substantially impaired.
§46A-6A-4. Civil action by consumer.
- If the nonconformity results in substantial impairment
to
the use or market value of the new motor vehicle and the manufacturer
has not replaced the new motor vehicle pursuant to the provisions
of section three of this article, or if the nonconformity exists
after a reasonable number of attempts to conform the new motor
vehicle to the applicable express warranties, the consumer shall
have a cuase of action against the manufacturer, in the circuit
court of any county having venue.
- In any action under this
section, the consumer may be awarded all or any portion of the
following:
- Revocation of acceptance and refund of the purchase
price, including, but not limited to, sales tax, license and
registration fees, and other reasonable expenses incurred for
the purchase of the new motor vehicle, or if there be no such
revocation of acceptance, damages for diminished value of the
motor vehicle;
- Damages for the cost of repairs reasonably
required to conform the motor vehicle to the express warranty;
- Damages for the loss of use, annoyance or inconvenience resulting
from the nonconformity, including, but not limited to, reasonable
expenses incurred for replacement transportation during any period
when the vehicle is not out of service by reason of the nonconformity
or by reason of repair; and
- Reasonable attorney fees.
-
It is an affirmative defense to any claim under this section
- that an alleged nonconformity does not substantially impair
the use or market value or
- 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.
- An action brought under this
section by the consumer must be commenced within one year of
the expiration of the express warranty term.
- The cause of
action provided for in this section shall be available only against
the manufacturer.
§46A-6A-5. Presumption of reasonable number of attempts;
extension of warranty term when repair services unavailable.
- It is presumed that a reasonable number of attempts have
been undertaken to conform a new motor vehicle to the applicable
express warranties, if the same nonconformity has been subject
to repair three or more times by the manufacturer, its agents
or its authorized dealers within the express warranty term or
during the period of one year following the date of original
delivery of the motor vehicle to the consumer, whichever is the
earlier date, and the nonconformity continues to exist, or the
vehicle is out of service by reason of repair for a cumulative
total of thirty or more calendar days during the term or during
the one-year period, whichever is the earlier date.
- If the
nonconformity results in a condition which 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 within the express warranty term 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,
and the nonconformity continues to exist.
- The presumption
that a reasonable number of attempts have been undertaken to
conform a new motor vehicle to the applicable express warranties
applies against a manufacturer only if the manufacturer has received
prior written notification from or on behalf of the consumer
and has had at least one opportunity to cure the defect alleged.
- The term of an express 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 a war, invasion, strike or fire, flood or other natural
disaster.
§46A-6A-6. Written statement to be provided to consumer.
At the time of purchase the manufacturer, either directly or
through its agent or its authorized dealer, must provide the
consumer a written statement on a separate piece of paper, in
ten point all capital type, in substantially the following form:"IMPORTANT:
IF THIS VEHICLE IS DEFECTIVE, YOU MAY BE ENTITLED UNDER STATE
LAW TO REPLACEMENT OR TO COMPENSATION. HOWEVER, TO BE ENTITLED
TO REPLACEMENT OR TO COMPENSATION, YOU MUST FIRST NOTIFY THE
MANUFACTURER OF THE PROBLEM IN WRITING AND PROVIDE THE MANUFACTURER
AN OPPORTUNITY TO REPAIR THE VEHICLE."
§46A-6A-7. Resale of returned motor vehicle.
If a new motor vehicle has been returned under section three
of this article or a similar statute of another state, it may
not be resold in this state unless the manufacturer corrects
the nonconformity and provides the consumer with a written statement
on a separate piece of paper in ten 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 WEST VIRGINIA
LAW.": Provided, That no manufacturer shall require by agreement
or otherwise, either directly or indirectly, that any of its
authorized dealers in this state accept such a motor vehicle
for resale.
§46A-6A-8. Third party dispute resolution process; attorney
general to promulgate rules and regulations.
- The attorney general of the state of West Virginia shall
promulgate rules and regulations for the establishment and qualification
of a third party dispute mechanism or mechanisms for the resolution
of warranty disputes between the consumer and the manufacturer,
its agent or its authorized dealer. Such mechanisms shall be
under the supervision of the division of consumer protection
in the office of the attorney general, and shall meet or exceed
the minimum requirements of the informal dispute settlement mechanism
as provided by the Magnuson-Moss Warranty Federal Trade Commission
Improvement Act (Public Law 93-637) and rules and regulations
lawfully promulgated thereunder effective the first day of January,
one thousand nine hundred eighty-four.
- If a qualified third
party dispute resolution process exists and the consumer receives
timely notification in writing of the availability of the third
party process with a description of its operation and effect,
the cause of action under section four of this article may not
be asserted by the consumer until after the consumer has initially
resorted to the third party process. Notification of the availability
of the third party process must be timely to the consumer. If
a qualified third party dispute resolution process does not exist,
or if the consumer is dissatisfied with the third party decision,
or if the manufacturer, its agent or its authorized dealer fails
to promptly fulfill the terms of the third party decision, the
consumer may assert a cause of action under section four of this
article.
- Any period of limitation of actions under any federal
or West Virginia laws with respect to any consumer shall be tolled
for the period 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, its agent or its authorized
dealer is required by the decision to fulfill its terms, whichever
occurs later.
§46A-6A-9. Other remedies available.
Nothing in this article shall be construed to limit any right
or remedy which is otherwise available to a consumer or authorized
dealer of a manufacturer under any other law.
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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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