48-901.
DEFINITIONS
For purposes of this chapter, the following terms have the following
meanings:
(1) "Consumer"
means the purchaser or lessee, other than for purposes of resale or
sublease, of a new motor vehicle used for personal business use, personal,
family or household purposes, or a person to whom the new motor vehicle is
transferred for the same purposes during the duration of an express
warranty applicable to the motor vehicle.
(2) "Early termination
costs" means expenses and obligations incurred by a motor vehicle
lessor as a result of an early termination of a written lease agreement
and surrender of a motor vehicle to a manufacturer under section 48-904,
Idaho Code, including penalties for prepayment of finance arrangements.
(3) "Informal dispute
settlement mechanism" means an arbitration process or procedure by
which the manufacturer attempts to resolve disputes with consumers
regarding motor vehicle nonconformities and repairs that arise during the
vehicle's warranty period.
(4) "Lease"
means a contract in the form of a lease or bailment for the use of
personal property by a natural person for a period of time exceeding four
(4) months, used for personal business use, personal, family, or household
purposes, whether or not the lessee has the option to purchase or
otherwise become the owner of the property at the expiration of the lease.
(5) "Manufacturer"
means a person engaged in the business of manufacturing, assembling or
distributing motor vehicles, who will, under normal business conditions
during the year, manufacture, assemble or distribute to dealers at least
ten (10) new motor vehicles.
(6) "Manufacturer's
express warranty" and "warranty" mean
the written warranty of the manufacturer of a new motor vehicle of its
condition and fitness for use, including any terms or conditions precedent
to the enforcement of obligations under that warranty.
(7) "Motor vehicle"
means a motor vehicle as defined in chapter 1, title 49, Idaho Code, which
is sold or licensed in this state but does not include:
(a) Motorcycle or farm tractor as defined
in sections 49-107 and 49-114, Idaho Code; or
(b) Trailer as defined in section 49-121,
Idaho Code; or
(c) Any motor vehicle with a gross laden
weight over twelve thousand (12,000) pounds.
(8) "Motor vehicle
lessor" means a person who holds title to a motor vehicle leased to
a lessee under a written lease agreement or who holds the lessor's rights
under such agreement.
48-902.
MANUFACTURER'S DUTY TO REPAIR -- SERVICE AND REPAIR FACILITIES.
(1) If a new motor vehicle does not conform
to all applicable express warranties, and the consumer reports the
nonconformity to the manufacturer, its agent, or its authorized dealer
during the term of
the applicable express warranties or during the period
of two (2) years following the date of original delivery of the new motor
vehicle to a consumer, or during the period ending with the date on which
the mileage on the motor vehicle reaches twenty-four thousand
(24,000)
miles, whichever is the earliest date, the manufacturer, its agent, or its
authorized dealer shall make the repairs necessary to conform the vehicle
to the applicable express warranties, notwithstanding the fact that the
repairs are made after the expiration of the warranty term or the two (2)
year period.
(2) Every manufacturer of motor vehicles sold
and for which the manufacturer has made an express warranty shall maintain
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 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 the provisions of this subsection, a manufacturer
may, in a town or city where there is not a franchise market
representative, enter into warranty service contracts with independent
service and repair facilities.
48-903.
MANUFACTURER'S DUTY TO REFUND OR REPLACE
(1) If the manufacturer, its agents, or its
authorized dealers are unable to conform the new motor vehicle to any
applicable express warranty by repairing or correcting any defect or
condition which impairs the use or market value of the motor vehicle to
the consumer after a reasonable number of attempts, the manufacturer shall
either replace the new motor vehicle with a comparable motor vehicle or
accept return of the vehicle from the consumer and refund to the consumer
the amount the consumer paid for the vehicle, inclusive of the value of
any trade-in, not to exceed one hundred five percent (105%) of the
manufacturer's suggested retail price of the motor vehicle. The
manufacturer's suggested retail price shall include all manufacturer
installed options. The one hundred five percent (105%) cap shall include
the cost of any options or other modifications arranged, installed, or
made by the manufacturer's agent, or its authorized dealer within thirty
(30) days after the date of original delivery. The manufacturer shall
refund to the consumer all other charges including, but not limited to,
sales or excise tax, license fees and registration fees, reimbursement for
towing and rental vehicle expenses incurred by the consumer as a result of
the vehicle being out of service for warranty repair. A reasonable
allowance for the consumer's use of the vehicle shall be deducted from the
refund to the consumer not to exceed the number of miles attributable to
the consumer up to the date of the arbitration hearing multiplied by the
purchase price of the vehicle and divided by one hundred twenty thousand
(120,000). If the manufacturer offers a replacement vehicle under this
section, the consumer has the option of rejecting the replacement vehicle
and requiring the manufacturer to provide a refund. Refunds must be made
to the consumer, and lienholder, if any, as their interests appear on the
records of the division of motor vehicles of the Idaho transportation
department. A manufacturer must give to the consumer an itemized statement
listing each of the amounts refunded under this section. If the amount of
sales or excise tax refunded is not separately stated, or if the
manufacturer does not apply for a refund of the tax within one (1) year of
the return of the motor vehicle, the state tax commission may refund the
tax, as determined under subsection (8) of this section, directly to the
consumer and lienholder, if any, as their interests appear on the records
of the division of motor vehicles. It is an affirmative defense to any
claim under this chapter (a) that an alleged nonconformity does not impair
the use or market value, or (b) that a nonconformity is the result of
abuse, neglect, or unauthorized modifications or alterations of a motor
vehicle by anyone other than the manufacturer, its agent or its authorized
dealer.
(2) It is presumed that a reasonable number
of attempts have been undertaken to conform a new motor vehicle to the
applicable express warranties, if (a) the same nonconformity has been
subject to repair four (4) or more times by the manufacturer, its agents,
or its authorized dealers within the applicable express warranty term or
during the period of two (2) years following the date of original delivery
of the new motor vehicle to a consumer or during the period ending with
the date on which the mileage on the motor vehicle reaches twenty-four
thousand (24,000) miles, whichever is the earliest date, but the
nonconformity continues to exist. However, the manufacturer shall have at
least one (1) opportunity to attempt to repair the vehicle before it is
presumed a reasonable number of attempts have been undertaken to conform
the vehicle to the applicable express warranty; or (b) the vehicle is out
of service by reason of repair for a cumulative total of thirty (30) or
more business days during the term or during the period, whichever is the
earlier date.
(3) If the nonconformity results in a
complete failure of the braking or steering system of the new motor
vehicle and is likely to cause death or serious bodily injury if the
vehicle is driven, it is presumed that a reasonable number of attempts
have been undertaken to conform the vehicle to the applicable express
warranties if the nonconformity has been subject to repair at least once
by the manufacturer, its agents, or its authorized dealers within the
applicable express warranty term or during the period of two (2) years
following the date of original delivery of the new motor vehicle to a
consumer or during the period ending with the date on which the mileage on
the motor vehicle reaches twenty-four thousand (24,000) miles, whichever
is the earliest date, and the nonconformity continues to exist. However,
the manufacturer shall have at least one (1) opportunity to attempt to
repair the vehicle before it is presumed a reasonable number of attempts
have been undertaken to conform the vehicle to the applicable express
warranty.
(4) The term of an applicable express
warranty, the two (2) year period and the thirty (30) day period shall be
extended by any period of time during which repair services are not
available to the consumer because of a war, invasion, strike, or fire,
flood, or other natural disaster.
(5) The presumption contained in subsection
(2) of this section applies against a manufacturer only if the
manufacturer, its agent, or its authorized dealer has received prior
written notification from or on behalf of the consumer at least once and
an opportunity to cure the defect alleged. If the notification is received
by the manufacturer's agent or authorized dealer, the agent or dealer must
forward it to the manufacturer by certified mail, return receipt
requested. However, if the manufacturer is not notified either by the
consumer or the manufacturer's agent or authorized dealer, then the
manufacturer shall have at least one (1) opportunity to cure the alleged
defect.
(6) The expiration of the time periods set
forth in subsection (2) of this section does not bar a consumer from
receiving a refund or replacement vehicle under subsection (1) of this
section if the reasonable number of attempts to correct the nonconformity
causing the substantial impairment occur within three (3) years following
the date of original delivery of the new motor vehicle to a consumer,
provided the consumer first reported the nonconformity to the
manufacturer, its agent, or its authorized dealer during the term of the
applicable express warranty.
(7) The manufacturer shall provide to its
agent or authorized dealer and, at the time of purchase or lease, the
manufacturer's agent or authorized dealer shall provide a written
statement to the consumer in the new motor vehicle warranty guide, in
10-point all capital type, in substantially the following form "IMPORTANT IF THIS VEHICLE IS DEFECTIVE, YOU MAY BE
ENTITLED UNDER THE STATE'S LEMON LAW TO REPLACEMENT OF IT OR A REFUND OF
ITS PURCHASE PRICE OR YOUR LEASE PAYMENTS. HOWEVER, TO BE ENTITLED TO
REFUND OR REPLACEMENT, YOU MUST FIRST NOTIFY THE MANUFACTURER, ITS AGENT,
OR ITS AUTHORIZED DEALER OF THE PROBLEM IN WRITING AND GIVE THEM AN
OPPORTUNITY TO REPAIR THE VEHICLE. YOU ALSO HAVE A RIGHT TO SUBMIT YOUR
CASE TO THE CONSUMER ARBITRATION PROGRAM WHICH THE MANUFACTURER MUST OFFER
IN THIS STATE."
(8) The amount of the sales or excise tax to
be paid by the manufacturer to the consumer under subsection (1) of this
section shall be the tax paid by the consumer when the vehicle was
purchased less an amount equal to the tax paid multiplied by a fraction,
the denominator of which is the purchase price of the vehicle and the
numerator of which is the allowance deducted from the refund for the
consumer's use of the vehicle.
48-904.
MANUFACTURER'S DUTY TO CONSUMERS WITH LEASED VEHICLES
A consumer who leases a new motor vehicle has the same rights against the
manufacturer under this section as a consumer who purchases a new motor
vehicle, except that, if it is determined that the manufacturer must
accept return of the consumer's leased vehicle pursuant to section 48-903,
Idaho Code, then the consumer lessee is not entitled to a replacement
vehicle, but is entitled only to a refund as provided in this section. In
such a case, the consumer's leased vehicle shall be returned to the
manufacturer and the consumer's written lease with the motor vehicle lessor must be terminated after all charges are settled. The manufacturer
shall provide the consumer with a full refund of all costs and charges
described below less a reasonable allowance for use. The manufacturer
shall provide to the consumer a refund of the pro rata amount of any down
payment paid by the consumer on the written lease. The pro rata amount of
such a refund shall be the amount of the down payment divided by the
number of months of the lease agreement and that amount multiplied by the
number of months remaining after the date of the arbitration. The
manufacturer shall also refund to the consumer amounts identified as
additional charges set forth in section 48-903, Idaho Code, if actually
paid by the consumer. The reasonable allowance for use shall be the lease
payments made by the consumer until the time of the award of a refund. The
manufacturer shall provide the motor vehicle lessor or its assignee with a
full refund of the early termination charges plus the residual value of
the vehicle, as specified in the lease agreement. The amount of any refund
by the manufacturer to the consumer for the pro rata portion of the down
payment plus the amount of the refund to the motor vehicle lessor or its
assignee by the manufacturer shall not exceed one hundred five percent
(105%) of the vehicle's original manufacturer's suggested retail price.
48-905.
RESALE OR RE-LEASE OF RETURNED MOTOR VEHICLE
(1) If a motor vehicle has been returned
under the provisions of section 48-903, Idaho Code, or a similar statute
of another state, whether as the result of a legal action or as the result
of an informal dispute settlement proceeding, it may not be resold or
re-leased in this state unless:
(a) The manufacturer provides the same
express warranty it 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 is earlier; and
(b) The manufacturer provides the consumer
with a written statement on a separate piece of paper, in 10-point all
capital type, in substantially the following form
"IMPORTANT THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID
NOT CONFORM TO THE MANUFACTURER'S EXPRESS WARRANTY AND THE NONCONFORMITY
WAS NOT CURED WITHIN A REASONABLE TIME AS PROVIDED BY IDAHO LAW."
The provisions of this chapter apply to the resold or re-leased motor
vehicle for full term of the warranty required under this section. If a
manufacturer has a program similar to the requirements of this subsection
and that program provides, at a minimum, substantially the same
protections for subsequent consumers, then the manufacturer shall be
considered to be in compliance with this subsection.
(2) Notwithstanding the provisions of
subsection (1) of this section, if a new motor vehicle has been returned
under the provisions of section 48-903, Idaho Code, or a similar statute
of another state because of a nonconformity resulting in a complete
failure of the braking or steering system of the motor vehicle likely to
cause death or serious bodily injury if the vehicle was driven and the
failure has not been repaired by the manufacturer, its agent or its
authorized dealer, the motor vehicle may not be resold in this state.
48-906.
ALTERNATIVE DISPUTE SETTLEMENT MECHANISM
(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 mechanism located in the
state of Idaho which complies with the provisions of title 16, code of
federal regulations, part 703, and the requirements of this section. The
provisions of section 48-903, Idaho Code, concerning refunds or
replacement do not apply to a consumer who has not first used this
mechanism before commencing a civil action, unless the manufacturer allows
a consumer to commence an action without first using this mechanism.
(2) An informal dispute settlement mechanism
provided for by this chapter shall, at the time a request for arbitration
is made, provide to the consumer and to each person who will arbitrate the
consumer's dispute, information about this chapter as approved and
directed by the attorney general, in consultation with interested parties.
The informal dispute settlement mechanism shall permit the parties to
present or submit any arguments based on this chapter and shall not
prohibit or discourage the consideration of any such arguments.
(3) If, in an informal dispute settlement
mechanism, it is decided that a consumer is entitled to a replacement
vehicle or refund under section 48-903, Idaho Code, then any refund or
replacement offered by the manufacturer or selected by a consumer shall
include and itemize all amounts authorized by section 48-903, Idaho Code.
If the amount of excise tax refunded is not separately stated, or if the
manufacturer does not apply for a refund of the tax within one (1) year of
the return of the motor vehicle, the state tax commission may refund the
sales tax, as determined under subsection (8) of section 48-903, Idaho
Code, directly to the consumer and lienholder, if any, as their interests
appear on the records of the division of motor vehicles of the Idaho
transportation department.
(4) No documents shall be received by any
informal dispute settlement mechanism unless those documents have been
provided to each of the parties in the dispute at or prior to the
mechanism's meeting, with an opportunity for the parties to comment on the
documents either in writing or orally. If a consumer is present during the
informal dispute settlement mechanism's meeting, the consumer may request
postponement of the mechanism's 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 meeting.
(5) The informal dispute settlement mechanism
shall allow each party to appear and make an oral presentation in the
state of Idaho 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. However, the manufacturer or its representative may
participate in the informal dispute settlement mechanism's meeting by
telephone if it chooses. If the consumer agrees to submit the dispute for
decision on the basis of documents alone, then manufacturer or dealer
representatives may not participate in the discussion or decision of the
dispute.
(6) 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.
(7) Where there has been a recent attempt by
the manufacturer to repair a consumer's vehicle, but no response has yet
been received by the informal dispute mechanism from the consumer as to
whether the repairs were successfully completed, the parties must be given
the opportunity to present any additional information regarding the
manufacturer's recent repair attempt before any final decision is rendered
by the informal dispute settlement mechanism. This provision shall not
prejudice a consumer's rights under this chapter.
(8) If the manufacturer knows that a
technical service bulletin directly applies to the specific mechanical
problem being disputed by the consumer, then the manufacturer shall
provide the technical service bulletin to the consumer at reasonable cost
upon request. The mechanism shall review any such technical service
bulletins submitted by either party.
(9) A consumer may be charged a fee to
participate in an informal dispute settlement mechanism required by this
chapter, but the fee may not exceed the conciliation court filing fee in
the county where the arbitration is conducted.
(10) Any party to the dispute has the right
to be represented by an attorney in an informal dispute settlement
mechanism.
(11) The informal dispute settlement
mechanism has all the evidence-gathering powers granted an arbitrator
under the uniform arbitration act.
(12) A decision issued in an informal dispute
settlement mechanism required by this section may be in writing and
signed.
48-907.
EFFECT AND ADMISSIBILITY OF DECISION BY INFORMAL DISPUTE SETTLEMENT
MECHANISM
The decision issued in an informal dispute settlement mechanism required
by this chapter is nonbinding on the parties involved, unless otherwise
agreed by the parties. Any party, upon application, may remove the
decision to district court for a trial de novo. If the manufacturer is
aggrieved by the decision of the informal dispute settlement mechanism, an
application to remove the decision must be filed in the district court
within thirty (30) days after the date the decision is received by the
parties. If the application to remove is not made within thirty (30) days,
then the district court shall, upon application of a party, issue an order
confirming the decision. A written decision issued by an informal dispute
settlement mechanism, and any written findings upon which the decision is
based, are admissible as nonbinding evidence in any subsequent legal
action and are not subject to further foundation requirements.
48-908. TREBLE DAMAGES FOR BAD FAITH APPEAL
OF DECISION
If the district court finds that a party has removed a decision of an
informal dispute settlement mechanism in bad faith, by asserting a claim
or defense that is frivolous and costly to the other party, or by
asserting an unfounded position solely to delay recovery by the other
party, then the court shall award to the prevailing party three (3) times
the actual damages sustained, together with costs and attorney's fees.
48-909.
CIVIL REMEDY
Any consumer injured by a violation of this chapter may bring a civil
action to enforce this chapter and recover costs and disbursements,
including reasonable attorney's fees incurred in the civil action.
However, the provisions of this section do not include recovery of
attorney's fees previously incurred in the course of informal dispute
resolution. In addition to the remedies provided herein, the attorney
general may, when in the public interest, bring an action pursuant to the
Idaho consumer protection act, chapter 6, title 48, Idaho Code, against
any manufacturer for violation of this chapter. For purposes of such
action, violations of this chapter shall be deemed to be violations of
Idaho's consumer protection act. In any such action, the attorney general
and district court shall have the same authority as is granted the
attorney general and district court under the Idaho consumer protection
act.
48-910.
LIMITATION ON ACTIONS
A civil action brought under this chapter must be commenced within three
(3) years of the date of original delivery of the new motor vehicle to a
consumer, except that if the consumer applies to an informal dispute
settlement mechanism within three (3) years of the date of original
delivery of the new motor vehicle to a consumer, and if the consumer is
aggrieved by the decision of the informal dispute settlement mechanism,
then any appeal of that decision brought under this chapter must be
commenced within three (3) months after the date of the final decision by
the mechanism.
48-911. REMEDY NONEXCLUSIVE
Nothing in this chapter limits the rights or remedies which are otherwise
available to a consumer under any other law.
48-912. DISCLOSURE REQUIREMENT
In addition to any investigative powers authorized by law, the attorney
general may inspect the records of the informal dispute settlement
mechanism upon reasonable notice, during regular business hours, and may
make available to the public information about the operation of the
mechanism, but data on an individual case may not be disclosed without the
prior consent of the affected parties.
48-913. DEALER
LIABILITY
Nothing in this chapter imposes liability on a dealer or creates an
additional cause of action by a consumer against a dealer, except for
written express warranties made by the dealer apart from the
manufacturer's warranties. The manufacturer shall not charge back or
require reimbursement by the dealer for any costs, including, but not
limited to, any refunds or vehicle replacements, incurred by the
manufacturer arising out of this chapter, unless there is evidence that
the related repairs had not been carried out by the dealer in a timely
manner or in a manner substantially consistent with the manufacturer's
published instructions.
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