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(3) "Condition"
means a general problem that may be attributable to a defect in more than
one (1) part;
(4) "Consumer"
means the purchaser or lessee, other than for the purposes of lease or
resale, of a new or previously untitled motor vehicle, or any other person
entitled by the terms of the warranty to enforce the obligations of the
warranty during the duration of the motor vehicle quality assurance
period, provided the purchaser has titled and registered the motor vehicle
as prescribed by law;
(5) "Incidental
charges" means those reasonable costs incurred by the consumer,
including, but not limited to, towing charges and the costs of obtaining
alternative transportation which are directly caused by the nonconformity
or nonconformities which are the subject of the claim, but shall not
include loss of use, loss of income, or personal injury claims;
(6)"Lease price"
means the aggregate of
(A) The lessor's actual purchase costs;
(B) Collateral charges, if applicable;
(C) Any fee paid to another person to obtain
the lease;
(D) Any insurance or other costs expended by
the lessor for the benefit of the lease;
(E) An amount equal to state and local sales
taxes, not otherwise included as collateral charges, paid by the lessor
when the vehicle was initially purchased; and
(F) An amount equal to five percent (5%) of
the lessor's actual purchase price;
(7) "Lessee"
means any consumer who leases a motor vehicle for one (1) year or more
pursuant to a written lease agreement which provides that the lessee is
responsible for repairs to such motor vehicle;
(8) "Lessee cost"
means the aggregate deposit and rental payments previously paid to the
lessor for the leased vehicle;
(9) "Lessor"
means a person who holds title to a motor vehicle leased to a lessee under
the written lease agreement or who holds the lessor's rights under such
agreement;
(10) "Manufacturer"
means:
(A) Any person who is engaged in the business
of constructing or assembling new motor vehicles or installing, on
previously assembled vehicle chassis, special bodies or equipment which,
when installed, form an integral part of the new motor vehicle; or
(B) In the case of motor vehicles not
manufactured in the United States, any person who is 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;
(11) "Motor
vehicle" or "vehicle" means any
self-propelled vehicle licensed, purchased, or leased in this state and
primarily designed for the transportation of persons or property over the
public streets and highways, but does not include mopeds, motorcycles, the
living facilities of a motor home, or vehicles over ten thousand pounds
(10,000 lbs.) gross vehicle weight rating. For purposes of this
definition, the limit of ten thousand pounds (10,000 lbs.) gross vehicle
weight rating does not apply to motor homes;
(12) "Motor vehicle
quality assurance period" means a period of time that:
(A) Begins:
(i) On the date of original delivery of a
motor vehicle; or
(ii) In the case of a replacement vehicle
provided by a manufacturer to a consumer under this subchapter, on the
date of delivery of the replacement vehicle to the consumer; and
(B) Ends twenty-four (24) months after the
date of the original delivery of the motor vehicle to a consumer, or the
first twenty-four thousand (24,000) miles of operation attributable to the
consumer, whichever is later;
(13)
"Nonconformity" means any specific or generic defect or condition
or any concurrent combination of defects or conditions that:
(A) Substantially impairs the use, market
value, or safety of a motor vehicle; or
(B) Renders the motor vehicle nonconforming
to the terms of an applicable manufacturer's express warranty or implied
warranty of merchantability;
(14) "Person"
means any natural person, partnership, firm, corporation, association,
joint venture, trust, or other legal entity;
(15) "Purchase price"
means the cash price paid for the motor vehicle appearing in the sales
agreement or contract, including any net allowance for a trade-in vehicle;
(16) "Replacement motor
vehicle" means a motor vehicle which is identical or reasonably
equivalent to the motor vehicle to be replaced, as the motor vehicle
replaced existed at the time of the original acquisition;
(17) "Warranty"
means any written warranty issued by the manufacturer, or any affirmation
of fact or promise made by the manufacturer, excluding statements made by
the dealer, in connection with the sale or lease of a motor vehicle to a
consumer which relates to the nature of the material or workmanship and
affirms or promises that such material or workmanship is free of defects
or will meet a specified level of performance.
History. Acts 1993, No. 285, § 3; 1993,
No. 297, § 3; 1995, No. 302, § 1.
§ 4-90-404.
Notice by consumer - Disclosure by manufacturer,
agent, or dealer.
(a)
(1) A consumer must notify the manufacturer
of a claim under this subchapter if the manufacturer has made the
disclosure required by subsection (b) of this section.
(2) However, if the manufacturer has not made
the required disclosure, the consumer is not required to notify the
manufacturer of a claim under this subchapter.
(b)
(1) At the time of the consumer's purchase or
lease of the vehicle, the manufacturer, its agent, or an authorized dealer
shall provide to the consumer a written statement that explains the
consumer's rights and obligations under this subchapter.
(2) The written statement shall be prepared
by the Consumer Protection Division of the Office of the Attorney General
and shall include the telephone number of the Consumer Protection Division
that the consumer can contact to obtain information regarding his or her
rights and obligations under this subchapter.
(3) For each failure of the manufacturer, its
agent, or an authorized dealer to provide to a consumer the written
statement required under this section, the manufacturer shall be liable to
the State of Arkansas for a civil penalty of not less than twenty-five
dollars ($25.00) nor more than one thousand dollars ($1,000).
(c)
(1) The manufacturer shall clearly and
conspicuously disclose to the consumer, in the warranty or owner's manual,
that written notice of the nonconformity is required before the buyer may
be eligible for a refund or replacement of the vehicle.
(2) The manufacturer shall provide the
consumer with conspicuous notice of the address and phone number for its
zone, district, or regional office for this state at the time of vehicle
acquisition, to which the buyer must send notification.
History. Acts 1993, No. 285, § 5; 1993,
No. 297, § 5; 1995, No. 302, § 2.
§ 4-90-405. Required warranty repairs.
If a motor vehicle does not conform to the warranty and the
consumer reports the nonconformity to the manufacturer, its agent, or
authorized dealer during the motor vehicle quality assurance period, the
manufacturer, its agent, or authorized dealer shall make such repairs as
are necessary to correct the nonconformity, even if the repairs are made
after the expiration of the term of protection.
History. Acts 1993, No. 285, § 4; 1993, No.
297, § 4.
§ 4-90-406.
Failure to make required repairs.
(a)
(1) After three
(3) attempts have been made to repair the same nonconformity that
substantially impairs the motor vehicle, or after one (1) attempt to
repair a nonconformity that is likely to cause death or serious bodily
injury, the consumer shall give written notification, by certified or
registered mail, to the manufacturer of the need to repair the
nonconformity in order to allow the manufacturer a final attempt to cure
the nonconformity.
(2) The
manufacturer shall, within ten (10) days after receipt of the
notification, notify and provide the consumer with the opportunity to have
the vehicle repaired at a reasonably accessible repair facility, and,
after delivery of the vehicle to the designated repair facility by the
consumer, the manufacturer shall, within ten (10) days, conform the motor
vehicle to the warranty.
(3) If the
manufacturer fails to notify and provide the consumer with the opportunity
to have the vehicle repaired at a reasonably accessible repair facility or
fails to perform the repairs within the time periods prescribed in this
subsection, the requirement that the manufacturer be given a final attempt
to cure the nonconformity does not apply and a nonrebuttable presumption
of a reasonable number of attempts to repair arises.
(b)
(1)
(A) If the manufacturer, its agent, or
authorized dealer has not conformed the motor vehicle to the warranty by
repairing or correcting one (1) or more nonconformities that substantially
impair the motor vehicle after a reasonable number of attempts, the
manufacturer, within forty (40) days, shall:
(i) At the time of its receipt of payment of
a reasonable offset for use by the consumer, replace the motor vehicle
with a replacement motor vehicle acceptable to the consumer; or
(ii) Repurchase the motor vehicle from the
consumer or lessor and refund to the consumer or lessor the full purchase
price or lease price, less a reasonable offset for use and less a
reasonable offset for physical damage sustained to the vehicle while under
the ownership of the consumer.
(B) The replacement or refund shall include
payment of all collateral and reasonably incurred incidental charges
(2)
(A) The consumer shall have an unconditional
right to choose a refund rather than a replacement.
(B) At the time of such refund or
replacement, the consumer, lien holder, or lessor shall furnish to the
manufacturer clear title to and possession of the motor vehicle.
(3) The amount of reasonable offset for use
by the consumer shall be determined by multiplying the actual price of the
new motor vehicle paid or payable by the consumer, including any charges
for transportation and manufacturer-installed or agent-installed options,
by a fraction having as its denominator one hundred twenty thousand
(120,000) and having as its numerator the number of miles traveled by the
new motor vehicle prior to the time the buyer first delivered the vehicle
to the manufacturer, its agent, or authorized dealer for correction of the
problem that gave rise to the nonconformity.
History. Acts 1993, No. 285, § 6; 1993, No.
297, § 6; 1995, No. 302, § 3.
§ 4-90-407. Refunds.
(a)
(1) Refunds shall be made to the consumer and
lienholder of record, if any, as their interests may appear.
(2) If applicable, refunds shall be made to
the lessor and lessee as follows:
(A) The lessee shall receive the lessee cost
less a reasonable offset for use; and
(B) The lessor shall receive the lease price
less the aggregate deposit and rental payments previously paid to the
lessor for the leased vehicle.
(b) If the manufacturer makes a refund to the
lessor or lessee pursuant to this subchapter, the consumer's lease
agreement with the lessor shall be terminated upon payment of the refund
and no penalty for early termination shall be assessed.
(c) If a replaced vehicle was financed by the
manufacturer, its subsidiary, or agent, the manufacturer, subsidiary, or
agent may not require the buyer to enter into any refinancing agreement
concerning a replacement vehicle that would create any financial
obligations upon the buyer beyond those of the original financing
agreement.
History. Acts 1993, No. 285, § 7; 1993, No.
297, § 7.
§ 4-90-408.
Reimbursement of towing and rental costs.
Whenever a vehicle is replaced or refunded under this subchapter, the
manufacturer shall reimburse the consumer for necessary towing and rental
costs actually incurred as a direct result of the nonconformity.
History. Acts 1993, No. 285, § 10; 1993, No.
297, § 10.
§ 4-90-409.
Option to retain use of vehicle.
A consumer has the option of retaining the use of any vehicle returned
under this subchapter until the time that the consumer has been tendered a
full refund or a replacement vehicle of comparable value.
History. Acts 1993, No. 285, § 11; 1993, No.
297, § 11.
§ 4-90-410. Presumption of reasonable attempts to repair -
Extension of time to repair in case of war, invasion, strike, fire, flood,
or natural disaster.
(a) A rebuttable presumption of a reasonable
number of attempts to repair is considered to have been undertaken to
correct a nonconformity if:
(1) The nonconformity has been subject to
repair as provided in § 4-90-406(a), but the nonconformity continues to
exist;
(2) The vehicle is out of service by reason
of repair, or attempt to repair, any nonconformity for a cumulative total
of thirty (30) calendar days; or
(3) There have been five (5) or more
attempts, on separate occasions, to repair any nonconformities that
together substantially impair the use and value of the motor vehicle to
the consumer.
(b)
(1) The thirty (30) calendar days in
subdivision (a)(2) of this section shall be extended by any period of time
during which repair services are not available as a direct result of war,
invasion, strike, fire, flood, or natural disaster.
(2) The manufacturer, its agent, or
authorized dealer shall provide or make provisions for the free use of a
vehicle to any consumer whose vehicle is out of service beyond thirty (30)
days by reason of delayed repair as a direct result of war, invasion,
strike, fire, flood, or natural disaster.
(c) The burden is on the manufacturer to show
that the reason for an extension under subsection (b) of this section was
the direct cause for the failure of the manufacturer, its agent, or
authorized dealer to cure any nonconformity during the time of the event.
History. Acts 1993, No. 285, § 12; 1993, No.
297, § 12.
§ 4-90-411. Diagnosis or repair - Documentation.
(a) A manufacturer, its agent, or authorized
dealer may not refuse to diagnose or repair any vehicle for the purpose of
avoiding liability under this subchapter.
(b)
(1) A manufacturer, its agent, or authorized
dealer shall provide a consumer with a written repair order each time the
consumer's vehicle is brought in for examination or repair.
(2) The repair order must indicate all work
performed on the vehicle, including examination of the vehicle, parts, and
labor.
History. Acts 1993, No. 285, § 13; 1993, No.
297, § 13.
§ 4-90-412. Resale of returned nonconforming vehicle.
If a motor vehicle has been replaced or repurchased by a manufacturer as
the result of a court judgment, an arbitration award, or any voluntary
agreement entered into between a manufacturer and a consumer that occurs
after a consumer complaint has been investigated and evaluated pursuant to
this subchapter or a similar law of another state, the motor vehicle may
not be resold in Arkansas unless:
(1) The manufacturer provides the same
express warranty the manufacturer provided to the original purchaser,
except that the term of the warranty need only last for twelve thousand
(12,000) miles or twelve (12) months after the date of resale, whichever
occurs first; and
(2) The manufacturer provides a written
disclosure, signed by the consumer, indicating that the vehicle was
returned to the manufacturer because of a nonconformity not cured within a
reasonable time as provided by Arkansas law.
History. Acts 1993, No. 285, § 14; 1993, No.
297, § 14.
§ 4-90-413.
Affirmative defenses.
It is an affirmative defense to any claim under this subchapter that:
(1) The nonconformity, defect, or condition
does not substantially impair the use, value, or safety of the motor
vehicle;
(2) The nonconformity, defect, or condition
is the result of an accident, abuse, neglect,or unauthorized modification
or alteration of the motor vehicle by persons other than the manufacturer,
its agent, or authorized dealer;
(3) The claim by the consumer was not filed
in good faith; or
(4) Any other defense allowed by law that may
be raised against the claim.
History. Acts 1993, No. 285, § 15; 1993, No.
297, § 15.
§ 4-90-414. Informal proceeding as precedent.
(a)
(1) Any manufacturer doing business in this
state, entering into franchise agreements for the sale of its motor
vehicles in this state, or offering express warranties on its motor
vehicles sold or distributed for sale in this state, shall operate, or
participate in, an informal dispute settlement proceeding located in the
State of Arkansas which complies with the requirements of this section.
(2) The provisions of § 4-90-406(b)(1) and
(2) concerning refunds or replacement do not apply to a consumer who has
not first used this informal proceeding before commencing a civil action,
unless the manufacturer allows a consumer to commence an action without
first using this informal procedure.
(3)
(A) The consumer shall receive adequate
written notice from the manufacturer of the existence of the procedure.
(B) Adequate written notice may include the
incorporation of the informal dispute settlement procedure into the terms
of the written warranty to which the motor vehicle does not conform.
(b) The informal dispute procedure must be
certified by the Consumer Protection Division of the Office of the
Attorney General as meeting the following criteria:
(1) The informal dispute procedure must
comply with the minimum requirements of the Federal Trade Commission for
informal dispute settlement procedures as set forth in 16 C.F.R. § 703.1
et seq., as in effect on the date of adoption of this subchapter, unless
any provision of 16 C.F.R. § 703.1 et seq. is in conflict with this
subchapter, in which case the provisions of this subchapter shall govern;
(2) The informal dispute procedure must
prescribe a reasonable time, not to exceed thirty (30) days after the
decision is accepted by the buyer, within which the manufacturer or its
agent must fulfill the terms of its decisions;
(3)
(A) No documents shall be received by any
informal dispute procedure unless those documents have been provided to
each of the parties in the dispute at or prior to the proceeding, with an
opportunity for the parties to comment on the documents either in writing
or orally.
(B) If a consumer is present during the
informal dispute proceeding, the consumer may request postponement of the
proceeding meeting to allow sufficient time to review any documents
presented at the time of the meeting which had not been presented to the
consumer prior to the time of the meeting;
(4)
(A) The informal dispute procedure shall
allow each party to appear and make an oral presentation within the State
of Arkansas unless the consumer agrees to submit the dispute for decision
on the basis of documents alone or by telephone, or unless the party fails
to appear for an oral presentation after reasonable prior written notice.
(B) If the consumer agrees to submit the
dispute for decision on the basis of documents alone, then the
manufacturer or dealer representatives may not participate in the
discussion or decision of the dispute;
(5) Consumers shall be given an adequate
opportunity to contest a manufacturer's assertion that a nonconformity
falls within intended specifications for the vehicle by having the basis
of the manufacturer's claim appraised by a technical expert selected and
paid for by the consumer prior to the informal dispute settlement hearing;
(6) A consumer may not be charged with a fee
to participate in an informal dispute procedure; and
(7) Any party to the dispute has the right to
be represented by an attorney in an informal dispute proceeding.
(c)
(1)
(A) The informal dispute procedure shall
annually submit a pool of not less than six (6) members who are appointed
with the advice and consent of the Consumer Protection Division of the
Office of the Attorney General.
(B) Selected strictly by rotation, one (1)
member shall hear disputes scheduled for a particular session unless the
consumer requests a panel of three (3) members, in which case three (3)
members shall hear disputes scheduled for a particular three-member
session.
(C) If the informal dispute procedure deems
it appropriate to require the services of an independent investigator,
such investigator shall be selected from a pool of not less than four (4)
members who are appointed annually with the advice and consent of the
Consumer Protection Division of the Office of the Attorney General and
from which the particular investigator shall be selected strictly by
rotation.
(2) Upon notification to the administrator of
any informal dispute procedure that a determination has been made by the
Consumer Protection Division of the Office of the Attorney General that a
member of any pool is not conforming to standards of fairness and
impartiality, that member shall be immediately removed from the pool.
History. Acts 1993, No. 285, § 16; 1993, No.
297, § 16.
§ 4-90-415. Enforcement - Exclusivity - Costs and expenses.
(a) A consumer may bring a civil action to
enforce this subchapter in a court of competent jurisdiction.
(b) This subchapter does not limit the rights
and remedies that are otherwise available to a consumer under any
applicable provisions of law.
(c) A consumer who prevails in any legal
proceeding under this subchapter is entitled to recover as part of the
judgment a sum equal to the aggregate amount of costs and expenses,
including attorney's fees based upon actual time expended by the attorney,
determined by the court to have been reasonably incurred by the consumer
for or in connection with the commencement and prosecution of the action.
History. Acts 1993, No. 285, §§ 17-19; 1993,
No. 297, §§ 17-19.
§ 4-90-416. Time limitation for commencement of action.
(a) An action brought under this subchapter
must be commenced within two (2) years following the date the buyer first
reports the nonconformity to the manufacturer, its agent, or authorized
dealer.
(b) When the buyer has commenced an informal
dispute settlement procedure described in § 4-90-414, the two-year period
specified in subsection (a) of this section begins to run at the time the
informal dispute settlement procedure is being commenced.
History. Acts 1993, No. 285, § 20; 1993, No.
297, § 20.
§ 4-90-417.
Deceptive trade practices.
A violation of any of the provisions of this subchapter shall be deemed a
deceptive trade practice under § 4-88-101 et seq.
History. Acts 1993, No. 285, § 21; 1993, No.
297, § 21.
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