0001| HOUSE BILL 951
|
0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0003| INTRODUCED BY
|
0004| MAX COLL
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| AN ACT
|
0011| RELATING TO CONSUMER PROTECTION; ESTABLISHING A ONE-YEAR
|
0012| WARRANTY AND OTHER PROTECTIONS FOR CONSUMERS OF ASSISTIVE
|
0013| DEVICES.
|
0014|
|
0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0016| Section 1. SHORT TITLE.--This act may be cited as the
|
0017| "Assistive Device Lemon Law".
|
0018| Section 2. DEFINITIONS.--As used in the Assistive Device
|
0019| Lemon Law:
|
0020| A. "assistive device" means a device, including a
|
0021| demonstrator, that a consumer purchases or accepts transfer of
|
0022| in New Mexico that is used for a major life activity, including
|
0023| manual wheelchairs, motorized wheelchairs, motorized scooters
|
0024| and other aids that enhance the mobility of a person; hearing
|
0025| aids, telephone communication devices for the deaf, assistive
|
0001| listening devices and other aids that enhance a person's
|
0002| ability to hear; voice-synthesized computer modules, optical
|
0003| scanners, talking software, Braille printers and other devices
|
0004| that enhance a sight-impaired person's ability to communicate;
|
0005| and any other device that enables a person with a disability to
|
0006| communicate, see, hear or maneuver;
|
0007| B. "collateral costs" means expenses incurred by a
|
0008| consumer in connection with the repair of a nonconformity,
|
0009| including the cost of obtaining an alternative assistive
|
0010| device;
|
0011| C. "consumer" means any of the following:
|
0012| (1) the purchaser of an assistive device, if
|
0013| the assistive device was purchased from a dealer or
|
0014| manufacturer for purposes other than resale;
|
0015| (2) a person to whom the assistive device is
|
0016| transferred for purposes other than resale, if the transfer
|
0017| occurs before the expiration of an express warranty applicable
|
0018| to the assistive device;
|
0019| (3) the person who can enforce the warranty;
|
0020| and
|
0021| (4) a person who leases an assistive device
|
0022| from a lessor pursuant to a written lease;
|
0023| D. "demonstrator" means an assistive device used
|
0024| primarily for the purpose of demonstration to the public;
|
0025| E. "early termination cost" means an expense or
|
0001| obligation that an assistive device lessor incurs as a result
|
0002| of both the termination of a written lease before the
|
0003| termination date set forth in that lease and the return of an
|
0004| assistive device to a manufacturer and includes a penalty for
|
0005| prepayment under a finance arrangement;
|
0006| F. "early termination saving" means an expense or
|
0007| obligation that an assistive device lessor avoids as a result
|
0008| of both the termination of a written lease before the
|
0009| termination date set forth in the lease and the return of an
|
0010| assistive device to a manufacturer. Early termination saving
|
0011| includes an interest charge that the assistive device lessor
|
0012| would have paid to finance the assistive device or, if the
|
0013| lessor does not finance the assistive device, the difference
|
0014| between the total amount for which the lease obligates the
|
0015| consumer during the period of the lease term remaining after
|
0016| the early termination and the present value of that amount at
|
0017| the date of the early termination;
|
0018| G. "manufacturer" means a person who manufactures
|
0019| or assembles assistive devices and agents of that person,
|
0020| including an importer, distributor, factory branch, distributor
|
0021| branch and any warrantors of the manufacturer's assistive
|
0022| device, but does not include an assistive device dealer;
|
0023| H. "nonconformity" or "nonconforming" means a
|
0024| condition or defect that substantially impairs the use, value
|
0025| or safety of an assistive device and that is covered by an
|
0001| express warranty applicable to the assistive device or to a
|
0002| component of the assistive device, but does not include a
|
0003| condition or defect that is the result of abuse, neglect or
|
0004| unauthorized modification or alteration of the assistive device
|
0005| by a consumer; and
|
0006| I. "reasonable attempt to repair" means, within the
|
0007| terms of an express warranty applicable to a new assistive
|
0008| device:
|
0009| (1) any nonconformity within the warranty that
|
0010| is subject to repair by the manufacturer, the manufacturer's
|
0011| authorized dealer or a lessor for at least four times and a
|
0012| nonconformity continues; or
|
0013| (2) the assistive device is out of service for
|
0014| an aggregate of at least thirty cumulative days because of
|
0015| warranty nonconformity.
|
0016| Section 3. OBLIGATIONS AND INTERESTS.--
|
0017| A. A manufacturer who sells an assistive device to
|
0018| a consumer, either directly or through a dealer, shall furnish
|
0019| the consumer with an express warranty for the assistive device.
|
0020| The duration of the express warranty shall be not less than one
|
0021| year after first delivery of the assistive device to the
|
0022| consumer. In the absence of a written warranty from the
|
0023| manufacturer, the manufacturer shall be deemed to have
|
0024| expressly warranted to the consumer of an assistive device that
|
0025| for a period of one year from the date of first delivery to the
|
0001| consumer, the assistive device will be free from any
|
0002| nonconformity.
|
0003| B. If a new assistive device does not conform to an
|
0004| applicable express warranty and the consumer reports the
|
0005| nonconformity to the manufacturer, dealer or lessor and makes
|
0006| the assistive device available for repair during the warranty
|
0007| period, the nonconformity shall be repaired at no charge to the
|
0008| consumer.
|
0009| C. If, after a reasonable attempt to repair, the
|
0010| nonconformity is not repaired, the manufacturer, at the
|
0011| direction of the consumer, shall:
|
0012| (1) accept return of the assistive device and
|
0013| replace it with a comparable new assistive device and refund
|
0014| any collateral costs within thirty days;
|
0015| (2) accept return of the assistive device and
|
0016| refund to the consumer and to any holder of a perfected
|
0017| security interest in the consumer's assistive device, as their
|
0018| interest may appear, the full purchase price plus any finance
|
0019| charge amount paid by the consumer at the point of sale and
|
0020| collateral costs, less a reasonable allowance for use; or
|
0021| (3) if the consumer was a lessee, accept
|
0022| return of the assistive device, refund to the lessor and to any
|
0023| holder of a perfected security interest in the assistive
|
0024| device, as their interest may appear, the current value of the
|
0025| written lease and refund to the consumer the amount that the
|
0001| consumer paid pursuant to the written lease plus any collateral
|
0002| costs, less a reasonable allowance for use.
|
0003| D. The current value of the written lease equals
|
0004| the total amount for which that lease obligates the consumer
|
0005| during the period of the lease remaining after its early
|
0006| termination, plus the assistive device dealer's early
|
0007| termination costs and the value of the assistive device at the
|
0008| lease expiration date if the lease sets forth that value, less
|
0009| the assistive device lessor's early termination savings.
|
0010| E. A reasonable allowance for use may be charged to
|
0011| the consumer based on the number of days that the consumer used
|
0012| the assistive device before the consumer first reported the
|
0013| nonconformity to the manufacturer, dealer or lessor.
|
0014| F. To receive a comparable new assistive device or
|
0015| a refund due pursuant to Paragraph (1) or (2) of Subsection C
|
0016| of this section, a consumer shall offer to transfer possession
|
0017| of the nonconforming assistive device to the manufacturer. No
|
0018| later than thirty days after the offer, the manufacturer shall
|
0019| provide the consumer with a comparable new assistive device or
|
0020| a refund. When the manufacturer provides the new assistive
|
0021| device or refund, the consumer shall return the nonconforming
|
0022| assistive device to the manufacturer, along with any
|
0023| endorsements necessary to transfer real possession to the
|
0024| manufacturer.
|
0025| G. To receive a refund due pursuant to Paragraph
|
0001| (3) of Subsection C of this section, a lessor shall offer to
|
0002| transfer possession of the nonconforming assistive device to
|
0003| the manufacturer. No later than thirty days after the offer,
|
0004| the manufacturer shall provide the refund to the lessor. When
|
0005| the manufacturer provides the refund, the lessor shall provide
|
0006| to the manufacturer any endorsements necessary to transfer
|
0007| legal possession to the manufacturer.
|
0008| H. No person shall enforce the lease against the
|
0009| consumer after the consumer receives a refund due pursuant to
|
0010| Paragraph (3) of Subsection C of this section.
|
0011| I. No assistive device returned by a consumer or
|
0012| lessor in this or any other state because of a nonconformity
|
0013| shall be resold or released in this state unless full
|
0014| disclosure of the reasons for return is made to any prospective
|
0015| buyer or lessee.
|
0016| Section 4. ATTORNEY GENERAL REGULATIONS--ARBITRATION.--
|
0017| The attorney general may adopt and promulgate regulations
|
0018| necessary to carry out the provisions of the Assistive Device
|
0019| Lemon Law, including regulations concerning arbitration of
|
0020| disputes arising from nonconforming assistive devices and
|
0021| failures to comply with the Assistive Device Lemon Law.
|
0022| Section 5. CONSUMER RIGHTS--ACTIONS--TREBLE DAMAGES.--
|
0023| A. This section shall not be construed to limit
|
0024| rights and remedies available to a consumer under any other
|
0025| law. B. In addition to pursuing any other remedy, a
|
0001| consumer may bring an action to recover actual damages or the
|
0002| sum of one hundred dollars ($100), whichever is greater. Where
|
0003| the trier of fact finds that the party charged with a violation
|
0004| of the Assistive Device Lemon Law has willfully engaged in the
|
0005| violation, the court may award up to three times actual damages
|
0006| or three hundred dollars ($300), whichever is greater, to the
|
0007| party complaining of the violation.
|
0008| C. The court shall award attorney fees and costs to
|
0009| the party complaining of a violation of the Assistive Device
|
0010| Lemon Law if he prevails. The court shall award attorney fees
|
0011| and costs to the party charged with a violation of the
|
0012| Assistive Device Lemon Law if it finds that the party
|
0013| complaining of the violation brought an action that was
|
0014| groundless.
|
0015| D. In any class action filed under this section,
|
0016| the court may award damages to the named plaintiffs as provided
|
0017| in Subsection B of this section and may award members of the
|
0018| class such actual damages as were suffered by each member of
|
0019| the class as a result of a violation of the Assistive Device
|
0020| Lemon Law.
|
0021| State of New Mexico
|
0022| House of Representatives
|
0023|
|
0024| FORTY-THIRD LEGISLATURE
|
0025| FIRST SESSION, 1997
|
0001|
|
0002|
|
0003| February 27, 1997
|
0004|
|
0005|
|
0006| Mr. Speaker:
|
0007|
|
0008| Your CONSUMER AND PUBLIC AFFAIRS COMMITTEE, to
|
0009| whom has been referred
|
0010|
|
0011| HOUSE BILL 951
|
0012|
|
0013| has had it under consideration and reports same with
|
0014| recommendation that it DO PASS, amended as follows:
|
0015|
|
0016| 1. On page 7, between lines 12 and 13, insert the
|
0017| following new section:
|
0018|
|
0019| "Section 4. EXEMPTION FROM ACT.--The Assistive Device Lemon
|
0020| Law does not apply to an assistive device that has been provided
|
0021| to a person free of charge or to a person when he provides an
|
0022| assistive device to a person free of charge.".
|
0023|
|
0024| 2. Renumber the succeeding sections accordingly.
|
0025|
|
0001|
|
0002| Respectfully submitted,
|
0003|
|
0004|
|
0005|
|
0006|
|
0007|
|
0008| Gary King, Chairman
|
0009|
|
0010|
|
0011| Adopted Not Adopted
|
0012|
|
0013| (Chief Clerk) (Chief Clerk)
|
0014|
|
0015| Date
|
0016|
|
0017| The roll call vote was 7 For 0 Against
|
0018| Yes: 7
|
0019| Excused: Rios, 0Vaughn, Vigil
|
0020| Absent: None
|
0021|
|
0022|
|
0023| 117849.1
|
0024| G:\BILLTEXT\BILLW_97\H0951
|
0025|
|
0001| FORTY-THIRD LEGISLATURE
|
0002| FIRST SESSION, 1997
|
0003|
|
0004|
|
0005| March 21, 1997
|
0006|
|
0007| Mr. President:
|
0008|
|
0009| Your PUBLIC AFFAIRS COMMITTEE, to whom has been
|
0010| referred
|
0011|
|
0012| HOUSE BILL 951, as amended
|
0013|
|
0014| has had it under consideration and reports same with
|
0015| recommendation that it DO PASS.
|
0016|
|
0017| Respectfully submitted,
|
0018|
|
0019|
|
0020|
|
0021|
|
0022| __________________________________
|
0023| Shannon Robinson, Chairman
|
0024|
|
0025|
|
0001|
|
0002| Adopted_______________________ Not
|
0003| Adopted_______________________
|
0004| (Chief Clerk) (Chief Clerk)
|
0005|
|
0006|
|
0007| Date ________________________
|
0008|
|
0009|
|
0010| The roll call vote was 4 For 1 Against
|
0011| Yes: 4
|
0012| No: Adair
|
0013| Excused: Boitano, Ingle, Vernon, Rodarte
|
0014| Absent: None
|
0015|
|
0016|
|
0017|
|
0018|
|
0019| H0951PA1
|