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 |