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Washington
Lemon Law Statutes
Title 19 Chapter 118 RCW - MOTOR VEHICLE WARRANTIES
RCW 19.118.005
Legislative intent
The legislature 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.
The legislature further recognizes that good cooperation and
communication between a manufacturer and a new motor vehicle
dealer will considerably increase the likelihood that a new motor
vehicle will be repaired within a reasonable number of attempts.
It is the intent of the legislature to ensure that the consumer
is made aware of his or her rights under this chapter and is
not refused information, documents, or service that would otherwise
obstruct the exercise of his or her rights.
In enacting these comprehensive measures, it is the intent of
the legislature to create the proper blend of private and public
remedies necessary to enforce this chapter, such that a manufacturer
will be sufficiently induced to take necessary steps to improve
quality control at the time of production or provide better warranty
service for the new motor vehicles that it sells in this state.
[1987 c 344 § 1.]
RCW 19.118.010
Motor vehicle manufacturers - Express warranties - Service and
repair facilities.
Every manufacturer of motor vehicles sold in this state and for
which the manufacturer has made an express warranty shall maintain
in this state 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 in
this state 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 this section, a manufacturer may
enter into warranty service contracts with independent service
and repair facilities.
[1983 c 240 § 1.]
RCW 19.118.021
Definitions.
Unless the context clearly requires otherwise, the definitions
in this section apply throughout this chapter.
- "Board" means new motor vehicle arbitration board.
- "Collateral charges" means any sales or lease related
charges including but not limited to sales tax, use tax, arbitration
service fees, unused license fees, unused registration fees,
unused title fees, finance charges, prepayment penalties, credit
disability and credit life insurance costs not otherwise refundable,
any other insurance costs prorated for time out of service, transportation
charges, dealer preparation charges, or any other charges for
service contracts, undercoating, rustproofing, or factory or
dealer installed options.
- "Condition" means a general problem that results
from a defect or malfunction of one or more parts, or their improper
installation by the manufacturer, its agents, or the new motor
vehicle dealer.
- "Consumer" means any person who has entered into
an agreement or contract for the transfer, lease, or purchase
of a new motor vehicle, other than for purposes of resale or
sublease, during the duration of the warranty period defined
under this section.
- "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 chapter.
- "Incidental costs" means any reasonable expenses
incurred by the consumer in connection with the repair of the
new motor vehicle, including any towing charges and the costs
of obtaining alternative transportation.
- "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. "Manufacturer" does
not include any person engaged in the business of set-up of motorcycles
as an agent of a new motor vehicle dealer if the person does
not otherwise construct or assemble motorcycles.
- "Motorcycle" means any motorcycle as defined in
RCW 46.04.330 which has an engine displacement of at least seven
hundred fifty cubic centimeters.
- "New motor vehicle" means any new self-propelled
vehicle, including a new motorcycle, primarily designed for the
transportation of persons or property over the public highways
that was originally purchased or leased at retail from a new
motor vehicle dealer or leasing company in this state, and that
was initially registered in this state or for which a temporary
motor vehicle license was issued pursuant to RCW 46.16.460, but
does not include vehicles purchased or leased by a business as
part of a fleet of ten or more vehicles at one time or under
a single purchase or lease agreement. If the motor vehicle is
a motor home, this chapter 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 trucks with nineteen thousand
pounds or more gross vehicle weight rating. The term "new
motor vehicle" includes a demonstrator or lease-purchase
vehicle as long as a manufacturer's warranty was issued as a
condition of sale.
- "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, or dealing in new motor vehicles,
and who is licensed or required to be licensed as a vehicle dealer
by the state of Washington.
- "Nonconformity" means a defect, serious safety
defect, or condition that substantially impairs the use, value,
or safety of a new motor vehicle, 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.
- "Purchase price" means the cash price of the new
motor vehicle appearing in the sales agreement or contract.
- "Purchase price" in the instance of a lease means
the actual written capitalized cost disclosed to the consumer
contained in the lease agreement. If there is no disclosed capitalized
cost in the lease agreement the "purchase price" is
the manufacturer's suggested retail price including manufacturer
installed accessories or items of optional equipment displayed
on the manufacturer label, required by 15 U.S.C. Sec. 1232.
- "Purchase price" in the instance of both a vehicle
purchase or lease agreement includes any allowance for a trade-in
vehicle but does not include any manufacturer-to-consumer rebate
appearing in the agreement or contract that the consumer received
or that was applied to reduce the purchase or lease cost.
Where the consumer is a subsequent transferee and the consumer
selects repurchase of the motor vehicle, "purchase price" means
the consumer's subsequent purchase price. Where the consumer
is a subsequent transferee and the consumer selects replacement
of the motor vehicle, "purchase price" means the original
purchase price.
- "Reasonable offset for use" means the definition
provided in RCW 19.118.041(1)(c) for a new motor vehicle other
than a new motorcycle. The reasonable offset for use for a new
motorcycle shall be computed by the number of miles that the
vehicle traveled before the manufacturer's acceptance of the
vehicle upon repurchase or replacement multiplied by the purchase
price, and divided by twenty-five thousand.
- "Reasonable number of attempts" means the definition
provided in RCW 19.118.041.
- "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 original purchase or lease, including any service
contract, undercoating, rustproofing, and factory or dealer installed
options.
- "Serious safety defect" means a life-threatening
malfunction or nonconformity that impedes the consumer's ability
to control or operate the new motor vehicle for ordinary use
or reasonable intended purposes or creates a risk of fire or
explosion.
- "Subsequent transferee" means a consumer who acquires
a motor vehicle, within the warranty period, as defined in this
section, with an applicable manufacturer's written warranty and
where the vehicle otherwise met the definition of a new motor
vehicle at the time of original retail sale or lease.
- "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 below the average resale
value for comparable motor vehicles.
- "Warranty" means any implied warranty, any written
warranty of the manufacturer, or any affirmation of fact or promise
made by the manufacturer in connection with the sale of a new
motor vehicle that becomes part of the basis of the bargain.
The term "warranty" pertains to the obligations of
the manufacturer in relation to materials, workmanship, and fitness
of a new motor vehicle for ordinary use or reasonably intended
purposes throughout the duration of the warranty period as defined
under this section.
- "Warranty period" means the period ending two
years after the date of the original delivery to the consumer
of a new motor vehicle, or the first twenty-four thousand miles
of operation, whichever occurs first.
[1995 c 254 § 1; 1990 c 239 § 1; 1989 c 347 § 1; 1987 c 344 § 2.]
NOTES:
Effective date--1995 c 254: "This act is necessary for the
immediate preservation of the public peace, health, or safety,
or support of the state government and its existing public institutions,
and shall take effect immediately [May 5, 1995]."
[1995 c 254 § 11.]
Severability--1995 c 254: "If any provision of this act
or its application to any person or circumstance is held invalid,
the remainder of the act or the application of the provision
to other persons or circumstances is not affected."
[1995 c 254 § 12.]
RCW 19.118.031
Manufacturers and new motor vehicle dealers - Responsibilities
to consumers - Extension of warranty period.
- The manufacturer shall publish an owner's manual and provide
it to the new motor vehicle dealer or leasing company. The owner's
manual shall include a list of the addresses and phone numbers
for the manufacturer's customer assistance division, or zone
or regional offices. A manufacturer shall provide to the new
motor vehicle dealer or leasing company all applicable manufacturer's
written warranties. The dealer or leasing company shall transfer
to the consumer, at the time of original retail sale or lease,
the owner's manual and applicable written warranties as provided
by a manufacturer.
- 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 chapter. The written statement shall
be prepared and supplied by the attorney general and shall contain
a toll-free number that the consumer can contact for information
regarding the procedures and remedies under this chapter.
- For the purposes of this chapter, if a new motor vehicle
does not conform to the warranty and the consumer reports the
nonconformity during the term of the warranty period or the period
of coverage of the applicable manufacturer's written warranty,
whichever is less, to the manufacturer, its agent, or the new
motor vehicle dealer who sold the new motor vehicle, the manufacturer,
its agent, or the new motor vehicle dealer shall make repairs
as are necessary to conform the vehicle to the warranty, regardless
of whether such repairs are made after the expiration of the
warranty period. Any corrections or attempted repairs undertaken
by a new motor vehicle dealer under this chapter shall be treated
as warranty work and billed by the dealer to the manufacturer
in the same manner as other work under the manufacturer's written
warranty is billed. For purposes of this subsection, the manufacturer's
written warranty shall be at least one year after the date of
the original delivery to the consumer of the vehicle or the first
twelve thousand miles of operation, whichever occurs first.
- 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, or shall provide a copy of any technical service
bulletin issued by the manufacturer regarding the year and model
of the consumer's new motor vehicle as it pertains to any material,
feature, component, or the performance thereof.
- The new motor vehicle 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, 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.
- No manufacturer, its agent, or the new motor vehicle dealer
may refuse to diagnose or repair any nonconformity covered by
the warranty for the purpose of avoiding liability under this
chapter.
- For purposes of this chapter, consumers shall have the rights
and remedies, including a cause of action, against manufacturers
as provided in this chapter.
- The warranty period and thirty-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.
[1995 c 254 § 2; 1987 c 344 § 3.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.041
Replacement or repurchase of nonconforming new motor vehicle--Reasonable
number of attempts--Liabilities and rights of parties--Application
of consumer protection act.
- If the manufacturer, its agent, or the new motor vehicle
dealer is unable to conform the new motor vehicle to the warranty
by repairing or correcting any nonconformity after a reasonable
number of attempts, the manufacturer, within forty calendar days
of a consumer's written request to the manufacturer's corporate,
dispute resolution, zone, or regional office address shall, at
the option of the consumer, replace or repurchase the new motor
vehicle.
- The replacement motor vehicle shall be identical or reasonably
equivalent to the motor vehicle to be replaced as the motor vehicle
to be replaced existed at the time of original purchase or lease,
including any service contract, undercoating, rustproofing, and
factory or dealer installed options. Where the manufacturer supplies
a replacement motor vehicle, the manufacturer shall be responsible
for sales tax, license, registration fees, and refund of any
incidental costs. Compensation for a reasonable offset for use
shall be paid by the consumer to the manufacturer in the event
that the consumer accepts a replacement motor vehicle.
- When repurchasing the new motor vehicle, the manufacturer
shall refund to the consumer the purchase price, all collateral
charges, and incidental costs, less a reasonable offset for use.
When repurchasing the new motor vehicle, in the instance of a
lease, the manufacturer shall refund to the consumer all payments
made by the consumer under the lease including but not limited
to all lease payments, trade-in value or inception payment, security
deposit, all collateral charges and incidental costs less a reasonable
offset for use. The manufacturer shall make such payment to the
lessor and/or lienholder of record as necessary to obtain clear
title to the motor vehicle and upon the lessor's and/ or lienholder's
receipt of that payment and payment by the consumer of any late
payment charges, the consumer shall be relieved of any future
obligation to the lessor and/or lienholder.
- The reasonable offset for use shall be computed by multiplying
the number of miles that the vehicle traveled directly attributable
to use by the consumer times the purchase price, and dividing
the product by one hundred twenty thousand. Where the consumer
is a second or subsequent purchaser, lessee, or transferee of
the motor vehicle and the consumer selects repurchase of the
motor vehicle, "the number of miles that the vehicle traveled" shall
be calculated from the date of purchase or lease by the consumer.
Where the consumer is a second or subsequent purchaser, lessee,
or transferee of the motor vehicle and the consumer selects replacement
of the motor vehicle, "the number of miles that the vehicle
traveled" shall be calculated from the original purchase,
lease, or in-service date.
- Reasonable number of attempts shall be deemed to have been
undertaken by the manufacturer, its agent, or the new motor vehicle
dealer to conform the new motor vehicle to the warranty within
the warranty period, if:
- The same serious safety defect has been subject to diagnosis
or repair two or more times, at least one of which is during
the period of coverage of the applicable manufacturer's written
warranty, and the serious safety defect continues to exist;
- the same nonconformity has been subject to diagnosis or repair
four or more times, at least one of which is during the period
of coverage of the applicable manufacturer's written warranty,
and the nonconformity continues to exist; or
- the vehicle is out-of-service by reason of diagnosis or repair
of one or more nonconformities for a cumulative total of thirty
calendar days, at least fifteen of them during the period of
the applicable manufacturer's written warranty. For purposes
of this subsection, the manufacturer's written warranty shall
be at least one year after the date of the original delivery
to the consumer of the vehicle or the first twelve thousand miles
of operation, whichever occurs first.
- No new motor vehicle dealer may be held liable by the manufacturer
for any collateral charges, incidental costs, purchase price
refunds, or vehicle replacements. Manufacturers shall not have
a cause of action against dealers under this chapter. Consumers
shall not have a cause of action against dealers under this chapter,
but a violation of any responsibilities imposed upon dealers
under this chapter is a per se violation of chapter 19.86 RCW.
Consumers may pursue rights and remedies against dealers under
any other law, including chapters 46.70 and 46.71 RCW. Manufacturers
and consumers may not make dealers parties to arbitration board
proceedings under this chapter.
[1995 c 254 § 3; 1989 c 347 § 2; 1987 c 344 § 4.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.061
Vehicle with nonconformities or out of service - Notification
of correction - Resale or transfer of title - Issuance of new
title - Disclosure to buyer - Intervening transferor.
- A manufacturer shall be prohibited from reselling any motor
vehicle determined or adjudicated as having a serious safety
defect unless the serious safety defect has been corrected and
the manufacturer warrants upon the first subsequent resale that
the defect has been corrected.
- Before any sale or transfer of a vehicle that has been
replaced or repurchased by the manufacturer that was determined
or adjudicated
as having a nonconformity or to have been out of service for
thirty or more calendar days under this chapter, the manufacturer
shall:
- Notify the attorney general and the department of licensing,
by certified mail or by personal service, upon receipt of the
motor vehicle;
- Attach a resale disclosure notice to the vehicle in a manner
and form to be specified by the attorney general. Only the retail
purchaser may remove the resale disclosure notice after execution
of the disclosure form required under subsection (3) of this
section; and
- Notify the attorney general and the department of licensing
if the nonconformity in the motor vehicle is corrected.
- Upon the first subsequent resale, either at wholesale or
retail, or transfer of title of a motor vehicle and which was
previously returned after a final determination, adjudication,
or settlement under this chapter or under a similar statute of
any other state, the manufacturer, its agent, or the new motor
vehicle dealer who has actual knowledge of said final determination,
adjudication or settlement, shall execute and deliver to the
buyer before sale an instrument in writing setting forth information
identifying the nonconformity in a manner to be specified by
the attorney general, and the department of licensing shall place
on the certificate of title information indicating the vehicle
was returned under this chapter.
- Upon receipt of the manufacturer's notification under subsection
(2) of this section that the nonconformity has been corrected
and upon the manufacturer's request and payment of any fees,
the department of licensing shall issue a new title with information
indicating the vehicle was returned under this chapter and that
the nonconformity has been corrected. Upon the first subsequent
resale, either at wholesale or retail, or transfer of title of
a motor vehicle, as provided under subsection (2)(c) of this
section, the manufacturer shall warrant upon the resale that
the nonconformity has been corrected, and the manufacturer, its
agent, or the new motor vehicle dealer who has actual knowledge
of the corrected nonconformity, shall execute and deliver to
the buyer before sale an instrument in writing setting forth
information identifying the nonconformity and indicating that
it has been corrected in a manner to be specified by the attorney
general.
- After repurchase or replacement and following a manufacturer's
receipt of a vehicle under this section and prior to a vehicle's
first subsequent retail transfer by resale or lease, any intervening
transferor of a vehicle subject to the requirements of this section
who has received the disclosure, correction and warranty documents,
as specified by the attorney general and required under this
chapter, shall deliver the documents with the vehicle to the
next transferor, purchaser or lessee to ensure proper and timely
notice and disclosure. Any intervening transferor who fails to
comply with this subsection shall, at the option of the subsequent
transferor or first subsequent retail purchaser or lessee:
-
Indemnify and [any] subsequent transferor or first subsequent
retail purchaser for all damages caused by such violation; or
- repurchase the vehicle at the full purchase price including
all fees, taxes and costs incurred for goods and services which
were included in the subsequent transaction.
[1995 c 254 § 4; 1989 c 347 § 3; 1987 c 344 § 5.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.070
Remedies.
The remedies provided under this chapter are cumulative and are
in addition to any other remedies provided by law.
[1983 c 240 § 7.]
RCW 19.118.080
New motor vehicle arbitration boards - Board proceedings - Prerequisite
to filing action in superior court.
- Except as provided in RCW 19.118.160, the attorney general
shall contract with one or more private entities to conduct arbitration
proceedings in order to settle disputes between consumers and
manufacturers as provided in this chapter, and each private entity
shall constitute a new motor vehicle arbitration board for purposes
of this chapter. The entities 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 chapter. No private entity
or its officers or employees conducting board proceedings and
no arbitrator presiding at such proceedings shall be directly
involved in the manufacture, distribution, sale, or warranty
service of any motor vehicle. Payment to the entities for the
arbitration services shall be made from the new motor vehicle
arbitration account.
- The attorney general shall adopt rules for the uniform
conduct of the arbitrations by the boards whether conducted by
a private
entity or by the attorney general pursuant to RCW 19.118.160,
which rules shall include but not be limited to the following
procedures:
- At all arbitration proceedings, the parties are entitled
to present oral and written testimony, to present witnesses and
evidence relevant to the dispute, to cross-examine witnesses,
and to be represented by counsel.
- A dealer, manufacturer, or other persons shall produce records
and documents requested by a party which are reasonably related
to the dispute. If a dealer, manufacturer, or other person refuses
to comply with such a request, a party may present a request
to the board for the attorney general to issue a subpoena on
behalf of the board.
The subpoena shall be issued only for the production of records
and documents which the board has determined are reasonably related
to the dispute, including but not limited to documents described
in RCW 19.118.031 (4) or (5).
If a party fails to comply with the subpoena, the arbitrator
may at the outset of the arbitration hearing impose any of the
following sanctions:
- Find that the matters which were the
subject of the subpoena, or any other designated facts, shall
be taken to be established for purposes of the hearing in accordance
with the claim of the party which requested the subpoena;
-
refuse to allow the disobedient party to support or oppose the
designated claims or defenses, or prohibit that party from introducing
designated matters into evidence;
- strike claims or defenses,
or parts thereof; or
- render a decision by default against
the disobedient party.
If a nonparty fails to comply with a subpoena and upon an arbitrator
finding that without such compliance there is insufficient evidence
to render a decision in the dispute, the attorney general shall
enforce such subpoena in superior court and the arbitrator shall
continue the arbitration hearing until such time as the nonparty
complies with the subpoena or the subpoena is quashed.
- A party may obtain written affidavits from employees and
agents of a dealer, a manufacturer or other party, or from other
potential witnesses, and may submit such affidavits for consideration
by the board.
- Records of the board proceedings shall be open to the public.
The hearings shall be open to the public to the extent practicable.
- Where the board proceedings are conducted by one or more
private entities, a single arbitrator may be designated to preside
at such proceedings.
- A consumer shall exhaust the new motor vehicle arbitration
board remedy or informal dispute resolution settlement procedure
under RCW 19.118.150 before filing any superior court action.
- The attorney general shall maintain records of each dispute
submitted to the new motor vehicle arbitration board, including
an index of new motor vehicles by year, make, and model.
- The attorney general shall compile aggregate annual statistics
for all disputes submitted to, and decided by, the new motor
vehicle arbitration board, as well as annual statistics for each
manufacturer that include, but shall not be limited to, the number
and percent of:
- Replacement motor vehicle requests;
- purchase
price refund requests;
- replacement motor vehicles obtained
in prehearing settlements;
- purchase price refunds obtained
in prehearing settlements;
- replacement motor vehicles awarded
in arbitration;
- purchase price refunds awarded in arbitration;
- board decisions neither complied with during the forty calendar
day period nor petitioned for appeal within the thirty calendar
day period;
- board decisions appealed categorized by consumer
or manufacturer;
- the nature of the court decisions and who
the prevailing party was;
- appeals that were held by the court
to be brought without good cause; and
- appeals that were held
by the court to be brought solely for the purpose of harassment.
The statistical compilations shall be public information.
- The attorney general shall submit biennial reports of the
information in this section to the senate and house of representatives
committees on commerce and labor, with the first report due January
1, 1990.
- The attorney general shall adopt rules to implement this
chapter. Such rules shall include uniform standards by which
the boards shall make determinations under this chapter, including
but not limited to rules which provide:
- A board shall find that a nonconformity exists if it determines
that the consumer's new motor vehicle has a defect, serious safety
defect, or condition that substantially impairs the use, value,
or safety of the vehicle.
- A board shall find that a reasonable number of attempts to
repair a nonconformity have been undertaken if:
- The same
serious safety defect has been subject to diagnosis or repair
two or more times, at least one of which is during the period
of coverage of the applicable manufacturer's written warranty,
and the serious safety defect continues to exist;
- the same
nonconformity has been subject to diagnosis or repair four or
more times, at least one of which is during the period of coverage
of the applicable manufacturer's written warranty, and the nonconformity
continues to exist; or
- the vehicle is out-of- service by
reason of diagnosis or repair of one or more nonconformities
for a cumulative total of thirty calendar days, at least fifteen
of them during the period of the applicable manufacturer's written
warranty. For purposes of this subsection, the manufacturer's
written warranty shall be at least one year after the date of
the original delivery to the consumer of the vehicle or the first
twelve thousand miles of operation, whichever occurs first.
- A board shall find that a manufacturer has failed to comply
with RCW 19.118.041 if it finds that the manufacturer, its agent,
or the new motor vehicle dealer has failed to correct a nonconformity
after a reasonable number of attempts and the manufacturer has
failed, within forty days of the consumer's written request,
to repurchase the vehicle or replace the vehicle with a vehicle
identical or reasonably equivalent to the vehicle being replaced.
- The attorney general shall provide consumers with information
regarding the procedures and remedies under this chapter.
[1995 c 254 § 5; 1989 c 347 § 4; 1987 c 344 § 6.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.090
Request for arbitration - Eligibility - Rejection - Manufacturer's
response - Remedies - Defenses - Acceptance or appeal.
- A consumer may request arbitration under this chapter
by submitting the request to the attorney general. Within ten
days
after receipt of an arbitration request, the attorney general
shall make a reasonable determination of the cause of the request
for arbitration and provide necessary information to the consumer
regarding the consumer's rights and remedies under this chapter.
The attorney general shall assign the dispute to a board, except
that if it clearly appears from the materials submitted by the
consumer that the dispute is not eligible for arbitration, the
attorney general may refuse to assign the dispute and shall explain
any required procedures to the consumer.
- Manufacturers shall submit to arbitration if such arbitration
is requested by the consumer within thirty months from the date
of the original delivery of the new motor vehicle to a consumer
at retail and if the consumer's dispute is deemed eligible for
arbitration by the board.
- The new motor vehicle arbitration board 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 board to be ineligible for arbitration due to insufficient
evidence may be reconsidered by the board upon the submission
of other information or documents regarding the dispute that
would allegedly qualify for relief under this chapter. Following
a second review, the board may reject the dispute for arbitration
if evidence is still clearly insufficient to qualify the dispute
for relief under this chapter. A rejection by the board is subject
to review by the attorney general or may be appealed under RCW
19.118.100.
A decision to reject any dispute for arbitration shall be sent
by certified mail to the consumer and the manufacturer, and shall
contain a brief explanation as to the reason therefor.
- The manufacturer shall complete a written manufacturer
response to the consumer's request for arbitration. The manufacturer
shall
provide a response to the consumer and the board within ten calendar
days from the date of the manufacturer's receipt of the board's
notice of acceptance of a dispute for arbitration. The manufacturer
response shall include all issues and affirmative defenses related
to the nonconformities identified in the consumer's request for
arbitration that the manufacturer intends to raise at the arbitration
hearing.
- The arbitration board shall award the remedies under RCW
19.118.041 if it finds a nonconformity and that a reasonable
number of attempts have been undertaken to correct the nonconformity.
The board shall award reasonable costs and attorneys' fees incurred
by the consumer where the manufacturer has been directly represented
by counsel:
- In dealings with the consumer in response to
a request to repurchase or replace under RCW 19.118.041;
-
in settlement negotiations;
- in preparation of the manufacturer's
statement; or
- at an arbitration board hearing or other board
proceeding.
- It is an affirmative defense to any claim under this chapter
that:
- The alleged nonconformity does not substantially impair
the use, value, or safety of the new motor vehicle; or
- the
alleged nonconformity is the result of abuse, neglect, or unauthorized
modifications or alterations of the new motor vehicle.
- The board shall have forty-five calendar days from the
date the board receives the consumer's request for arbitration
to
hear the dispute. If the board determines that additional information
is necessary, the board may continue the arbitration proceeding
on a subsequent date within ten calendar days of the initial
hearing. The board shall decide the dispute within sixty calendar
days from the date the board receives the consumer's request
for arbitration.
The decision of the board shall be delivered by certified mail
or personal service to the consumer and the manufacturer, and
shall contain a written finding of whether the new motor vehicle
meets the standards set forth under this chapter.
- The consumer may accept the arbitration board decision
or appeal to superior court, pursuant to RCW 19.118.100. Upon
acceptance
by the consumer, the arbitration board decision shall become
final. The consumer shall send written notification of acceptance
or rejection to the arbitration board within sixty days of receiving
the decision and the arbitration board shall immediately deliver
a copy of the consumer's acceptance to the manufacturer by certified
mail, return receipt requested, or by personal service. Failure
of the consumer to respond to the arbitration board within sixty
calendar days of receiving the decision shall be considered a
rejection of the decision by the consumer. The consumer shall
have one hundred twenty calendar days from the date of rejection
to file a petition of appeal in superior court. At the time the
petition of appeal is filed, the consumer shall deliver, by certified
mail or personal service, a conformed copy of such petition to
the attorney general.
- Upon receipt of the consumer's acceptance, the manufacturer
shall have forty calendar days to comply with the arbitration
board decision or thirty calendar days to file a petition of
appeal in superior court. At the time the petition of appeal
is filed, the manufacturer shall deliver, by certified mail or
personal service, a conformed copy of such petition to the attorney
general. If the attorney general receives no notice of petition
of appeal after forty calendar days, the attorney general shall
contact the consumer to verify compliance.
[1995 c 254 § 6; 1989 c 347 § 5; 1987 c 344 § 7.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.095
Arbitration decision - Compliance - Accomplishment - Dispute
- Failure - Fine - Costs - Attorneys' fees.
- Compliance with an arbitration board decision under this
chapter must be accomplished at a time, place, and in a manner
to be determined by the mutual agreement of the consumer and
manufacturer.
- The consumer shall make the motor vehicle available to the
manufacturer free of damage other than that related to any nonconformity,
defect, or condition to which a warranty applied, or that can
reasonably be expected in the use of the vehicle for ordinary
or reasonably intended purposes and in consideration of the mileage
attributable to the consumer's use. Any insurance claims or settlement
proceeds for repair of damage to the vehicle due to fire, theft,
vandalism, or collision must be assigned to the manufacturer
or, at the consumer's option, the repair must be completed before
return of the vehicle to the manufacturer.
The consumer may not remove any equipment or option that was
included in the original purchase or lease of the vehicle or
that is otherwise included in the repurchase or replacement award.
In removing any equipment not included in the original purchase
or lease, the consumer shall exercise reasonable care to avoid
further damage to the vehicle but is not required to return the
vehicle to original condition.
- At the time of compliance with an arbitration board decision
that awards repurchase, the manufacturer shall make full payment
to the consumers and either the lessor or lienholder, or both,
or provide verification to the consumer of prior payment to either
the lessor or lienholder, or both.
At the time of compliance with an arbitration board decision
that awards replacement, the manufacturer shall provide the replacement
vehicle together with any refund of incidental costs.
- At any time before compliance a party may request the board
to resolve disputes regarding compliance with the arbitration
board decision including but not limited to time and place for
compliance, condition of the vehicle to be returned, clarification
or recalculation of refund amounts under the award, or a determination
if an offered vehicle is reasonably equivalent to the vehicle
being replaced. In resolving compliance disputes the board may
not review, alter, or otherwise change the findings of a decision
or extend the time for compliance beyond the time necessary for
the board to resolve the dispute.
- Failure of the consumer to make the vehicle available within
sixty calendar days in response to a manufacturer's unconditional
tender of compliance is considered a rejection of the arbitration
decision by the consumer, except as provided in (c) of this subsection
or subsection (2) of this section.
- If, at the end of the forty calendar day period, neither
compliance with nor a petition to appeal the board's decision
has occurred, the attorney general may impose a fine of up to
one thousand dollars per day until compliance occurs or a maximum
penalty of one hundred thousand dollars accrues unless the manufacturer
can provide clear and convincing evidence that any 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 the evidence or fails to pay the fine, the attorney
general may initiate proceedings against the manufacturer for
failure to pay any fine that accrues until compliance with the
board's decision occurs or the maximum penalty of one hundred
thousand dollars results. If the attorney general prevails in
an enforcement action regarding any fine imposed under this subsection,
the attorney general is entitled to reasonable costs and attorneys'
fees. Fines and recovered costs and fees shall be returned to
the new motor vehicle arbitration account.
[1995 c 254 § 8.]
NOTES:
Effective date - Severability - 1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.100
Trial de novo - Posting security - Recovery.
- The consumer or the manufacturer may request a trial de novo
of the arbitration decision, including a rejection, in superior
court.
- 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.
- If the consumer prevails, recovery shall include the monetary
value of the award, attorneys' fees and costs incurred in the
superior court action, and, if the board awarded the consumer
replacement or repurchase of the vehicle and the manufacturer
did not comply, continuing damages in the amount of twenty-five
dollars per day for all days beyond the forty calendar day period
following the manufacturer's receipt of the consumer's acceptance
of the board's decision in which the manufacturer did not provide
the consumer with the free use of a comparable loaner replacement
motor vehicle. If it is determined by the court that the party
that appealed acted without good cause in bringing the appeal
or brought the appeal solely for the purpose of harassment, the
court may triple, but at least shall double, the amount of the
total award.
[1989 c 347 § 6; 1987 c 344 § 8.]
RCW 19.118.110
Arbitration fee - New motor vehicle arbitration account - Report
by attorney general.
A three-dollar arbitration fee shall be collected by either the
new motor vehicle dealer or vehicle lessor from the consumer
upon execution of a retail sale or lease agreement. The fee shall
be forwarded to the department of licensing at the time of title
application for deposit in the new motor vehicle arbitration
account hereby created in the state treasury. Moneys in the account
shall be used for the purposes of this chapter, subject to appropriation.
During the 1995-99 fiscal biennium, the legislature may transfer
moneys from the account to the extent that the moneys are not
necessary for the purposes of this chapter.
At the end of each fiscal year, the attorney general shall prepare
a report listing the annual revenue generated and the expenses
incurred in implementing and operating the arbitration program
under this chapter.
[1995 2nd sp.s. c 18 § 910; 1995 c 254 § 7; 1989 c 347 § 7; 1987
c 344 § 9.]
NOTES:
Severability--1995 2nd sp.s. c 18: "If any provision of
this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of
the provision to other persons or circumstances is not affected." [1995
2nd sp.s. c 18 § 926.]
Effective date--1995 2nd sp.s. c 18: "This act is necessary
for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions. Section 807 of this act shall take effect immediately
[June 16, 1995]. The remainder of the act shall take effect July
1, 1995." [1995 2nd sp.s. c 18 § 927.]
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.120
Application of consumer protection act.
A violation of this chapter shall constitute an unfair or deceptive
trade practice affecting the public interest under chapter 19.86
RCW. All public and private remedies provided under that chapter
shall be available to enforce this chapter.
[1987 c 344 § 10.]
RCW 19.118.130
Waivers, limitations, disclaimers--Void.
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 RCW 19.118.021 through 19.118.140 shall be void
as contrary to public policy. Said rights shall extend to a subsequent
transferee of such new motor vehicle.
[1987 c 344 § 11.]
R CW 19.118.140
Other rights and remedies not precluded.
Nothing in this chapter limits the consumer from pursuing other
rights or remedies under any other law.
[1987 c 344 § 12.]
RCW 19.118.150
Informal dispute resolution settlement procedure.
If a manufacturer has established an informal dispute resolution
settlement procedure which substantially complies with the applicable
provision of Title 16, Code of Federal Regulations Part 703,
as from time to time amended, a consumer may choose to first
submit a dispute under this chapter to the informal dispute resolution
settlement procedure.
[1989 c 347 § 8; 1987 c 344 § 14.]
RCW 19.118.160
New motor vehicle arbitration boards - When established by attorney
general - Membership - Travel expenses and compensation.
If the attorney general is unable at any time to contract with
private entities to conduct arbitrations under the procedures
and standards in this chapter, the attorney general shall establish
one or more new motor vehicle arbitration boards. Each such board
shall consist of three members appointed by the attorney general,
only one of whom may be directly involved in the manufacture,
distribution, sale, or service of any motor vehicle. Board members
shall be reimbursed for travel expenses in accordance with RCW
43.03.050 and 43.03.060 and shall be compensated pursuant to
RCW 43.03.240.
[1989 c 347 § 9; 1987 c 344 § 15.]
RCW 19.118.170
History of vehicle - Availability to owner.
Notwithstanding RCW 46.12.380, the department of licensing shall
make available to the registered owner all title history information
regarding the vehicle upon request of the registered owner and
receipt of a statement that he or she is investigating or pursuing
rights under this chapter.
[1995 c 254 § 9.]
NOTES:
Effective date--Severability--1995 c 254: See notes following
RCW 19.118.021.
RCW 19.118.900
Effective dates--1987 c 344.
- Section 9 of this act is necessary for the immediate preservation
of the public peace, health, and safety, the support of the state
government and its existing public institutions, and shall take
effect June 1, 1987.
- Sections 2 through 8, 10 through 12, and 14 through 16 of
this act shall take effect January 1, 1988, except that the attorney
general may take such actions as are necessary to ensure the
new motor vehicle arbitration boards are established and operational.
[1987 c 344 § 22.]
RCW 19.118.902
Severability--1987 c 344.
If any provision of this act or its application to any person
or circumstance is held invalid, the remainder of the act or
the application of the provision to other persons or circumstances
is not affected.
[1987 c 344 § 23.]
RCW 19.118.903
Severability--1989 c 347.
If any provision of this act or its application to any person
or circumstance is held invalid, the remainder of the act or
the application of the provision to other persons or circumstances
is not affected.
[1989 c 347 § 10.]
RCW 19.118.904
Effective date--1989 c 347.
This act is necessary for the immediate preservation of the public
peace, health, or safety, or support of the state government
and its existing public institutions, and shall take effect June
1, 1989.
[1989 c 347 § 11.]
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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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