10 § 1161.
Definitions
As used in this chapter, unless the context indicates otherwise, the
following terms have the following meanings. [1983, c. 145 (new).]
1. Consumer. "Consumer"
means the purchaser, other than for purposes of resale, or the lessee, of
a motor vehicle, any person to whom the motor vehicle is transferred
during the duration of an express warranty applicable to the motor vehicle
and any other person entitled by the terms of the warranty to enforce the
obligations of the warranty, except that the term "consumer" shall not
include any governmental entity, or any business or commercial enterprise
which registers 3 or more motor vehicles. [1987, c. 359, § 1 (amd).]
2. Manufacturer.
"Manufacturer" means manufacturer, importer, distributor or anyone
who is named as the warrantor on an express written warranty on a motor
vehicle. [1983, c. 145 (new).]
3. Motor vehicle.
"Motor vehicle" means any motor driven vehicle, designed for the
conveyance of passengers or property on the public highways, which is sold
or leased in this State, except that the term "motor vehicle" does not
include any commercial vehicle with a gross vehicle weight of 8,500 pounds
or more. [1987, c. 359, § 2 (amd).]
4. Reasonable allowance for use. "Reasonable allowance for use" means an
amount that can not exceed the lesser of 1/3 of that amount allowed per
mile by the United States Internal Revenue Service as provided by
regulation, revenue procedure or revenue ruling promulgated under the
United States Internal Revenue Code, Title 26, Section 162 for the use of
a personal vehicle for business purposes or 10% of the purchase price of
the vehicle. [1999, c. 212, §1 (amd).]
5. State-certified arbitration. "State-certified arbitration" means the
informal dispute settlement procedure administered by the Department of
the Attorney General which arbitrates consumer complaints dealing with new
motor vehicles that may be so defective as to qualify for equitable relief
under the Maine lemon laws. [1989, c. 570, §1 (new).]
10 § 1161-A
Short title
This chapter may be known and cited as "the Maine Lemon Law." [2003, c.
337, §4 (new).]
10 § 1162.
Scope; construction
1. Consumer rights.
Nothing in this chapter in any way limits the rights or remedies
which are otherwise available to a consumer under any other law. [1983, c.
145 (new).]
2. Manufacturers, distributors, agents and dealers.
Nothing in this chapter in any way limits the rights or remedies of
franchisees under chapter 204 or other applicable law. [1983, c. 145
(new).]
3. Waivers void. Any
agreement entered into by a consumer which waives, limits or disclaims the
rights set forth in this chapter shall be void as contrary to public
policy. [1985, c. 220, § 2 (new).]
10 § 1163.
Rights and duties
1. Repair of nonconformities. If a new motor
vehicle does not conform to all express warranties, the manufacturer, its
agent or authorized dealer shall make those repairs necessary to conform
the vehicle to the express warranties if the consumer reports the
nonconformity to the manufacturer, its agent or authorized dealer during
the term of the express warranties, within a period of 3 years following
the date of original delivery of the motor vehicle to a consumer, or
during the first 18,000 miles of operation, whichever is the earlier date.
This obligation exists notwithstanding the fact that the repairs are made
after the expiration of the appropriate time period.
A. [1989, c. 570, §2 (rp).]
B. [1989, c. 570, §2 (rp).]
[2003, c. 337, §5 (amd).]
2. Failure to make effective repair.
If the manufacturer or its agents or authorized dealers are unable to
conform the motor vehicle to any applicable express warranty by repairing
or correcting any defect or condition, or combination of defects or
conditions, which substantially impairs the use, safety or value of the
motor vehicle after a reasonable number of attempts, the manufacturer
shall either replace the motor vehicle with a comparable new motor vehicle
or accept return of the vehicle from the consumer and make a refund to the
consumer and lienholder, if any, as their interests may appear. The
consumer may reject any offered replacement and receive instead a refund.
The refund shall consist of the following items, less a reasonable
allowance for use of the vehicle:
A. The full purchase price or, if a leased
vehicle, the lease payments made to date, including any paid finance
charges on the purchased or leased vehicle; [1991, c. 64 (amd).]
B. All collateral charges, including, but not
limited to, sales tax, registration fees and similar government charges;
and [2003, c. 337, §5 (amd).]
C. Reasonable costs incurred by the consumer
for towing and storage of the vehicle and for procuring alternative
transportation while the vehicle could not be driven because it did not
conform to any applicable express warranty. [1999, c. 212, §2 (amd).]
The provisions of this section do not affect the obligations of a consumer
under a loan or sales contract or the secured interest of any secured
party. The secured party shall consent to the replacement of the security
interest with a corresponding security interest on a replacement motor
vehicle that is accepted by the consumer in exchange for the motor
vehicle, if the replacement motor vehicle is comparable in value to the
original motor vehicle. If, for any reason, the security interest in the
motor vehicle having a defect or condition is not able to be replaced with
a corresponding security interest on a motor vehicle accepted by the
consumer, the consumer is entitled to a refund. Refunds required under
this section must be made to the consumer and the secured party, if any,
as their interests exist at the time the refund is to be made. Similarly,
refunds to a lessor and lessee must be made as their interests exist at
the time the refund is to be made. [2003, c. 337, §5 (amd).]
3. Reasonable number of attempts;
presumption. There is a presumption that a reasonable number of
attempts have been undertaken to conform a motor vehicle to the applicable
express warranties if:
A. The same nonconformity has been subject to
a repair attempt 3 or more times by the manufacturer or its agents or
authorized dealers within the express warranty term, during the period of
3 years following the date of original delivery of the motor vehicle to a
consumer or during the first 18,000 miles of operation of that motor
vehicle, whichever occurs earliest, and the nonconformity continues to
exist; [2003, c. 337, §5 (amd).]
A-1. [1989, c. 570, §3 (rp).]
A-2. The same nonconformity has resulted in a
serious failure of either the braking or steering systems in the vehicle
and has been subject to a repair attempt one or more times by the
manufacturer or its agents or authorized dealers during the warranty term
or the appropriate time period, whichever occurs earlier; or [2003, c.
337, §5 (new).]
B. The vehicle is out of service by reason of
a repair attempt by the manufacturer, its agents or authorized dealer, of
any defect or condition or combination of defects for a cumulative total
of 15 or more business days during that warranty term or the appropriate
time period, whichever occurs earlier. [2003, c. 337, §5 (amd).]
[2003, c. 337, §5 (amd).]
3-A. Final opportunity to repair. If
the manufacturer or its agents have been unable to make the repairs
necessary to conform the vehicle to the express warranties, the consumer
shall notify, in writing, the manufacturer or the authorized dealer of the
consumer's desire for a refund or replacement. This notice can be given
after one repair attempt if the nonconformity has resulted in a serious
failure of either the braking or steering systems in the vehicle. For the
7 business days following receipt by the dealer or the manufacturer of
this notice, the manufacturer has a final opportunity to correct or repair
any nonconformities. This final repair effort must be at a repair facility
that is reasonably accessible to the consumer. This repair effort does not
stay the time period within which the manufacturer must provide an
arbitration hearing pursuant to section 1165. [2003, c. 337, §5 (amd).]
4. Time limit; extension. The term of
an express warranty, the 18,000 mileage term, the 3-year period following
delivery and the 15-day period provided in subsection 3, paragraph B, must
be extended by any period of time during which repair services are not
available to the consumer because of a war, invasion or strike or fire,
flood or other natural disaster. [2003, c. 337, §5 (amd).]
5. Dealer liability. Nothing in this
chapter may be construed as imposing any liability on a dealer or creating
a cause of action by a consumer against a dealer under this section,
except regarding any written express warranties made by the dealer apart
from the manufacturer's own warranties. [1983, c. 145 (new).]
6. Disclosure of notice requirement.
No consumer may be required to notify the manufacturer of a claim under
this section, unless the manufacturer has clearly and conspicuously
disclosed to the consumer, in the warranty or owner's manual, that written
notification of the nonconformity is required before the consumer may be
eligible for a refund or replacement of the vehicle. The manufacturer
shall include with the warranty or owner's manual the name and address to
which the consumer shall send the written notification. [1987, c. 395, § 6
(amd).]
6-A. Notification of dealer. Consumers
may also satisfy a manufacturer's notice requirement by notifying in
writing the authorized dealer of a claim under this section. The dealer
shall act as the manufacturer's agent and immediately communicate to the
manufacturer the consumer's claim. [1987, c. 359, § 7 (new).]
7. Disclosure at time of resale for
failure to make effective repair. A motor vehicle that is returned to
the manufacturer under subsection 2 may not be resold without clear and
conspicuous written disclosure to any subsequent purchaser, whether that
purchaser is a consumer or a dealer, of the following information:
A. That the motor vehicle was returned to the
manufacturer under this chapter; [1985, c. 220, § 3 (new).]
B. That the motor vehicle did not conform to
the manufacturer's express warranties; and [1985, c. 220, § 3 (new).]
C. The ways in which the motor vehicle did
not conform to the manufacturer's express warranties. [1985, c. 220, § 3
(new).]
[2003, c. 337, §5 (amd).]
8. Disclosure at time of retail sale under
settlement agreement. A motor vehicle that is surrendered to a
manufacturer as a result of a settlement of a state-certified arbitration
must, at the time that motor vehicle is first offered for retail sale to
the public, be affixed with a clear and conspicuous written disclosure
stating that the vehicle was the subject of a Maine Lemon Law settlement
agreement. [2003, c. 337, §5 (new).]
10 § 1164.
Affirmative defense
It is an affirmative defense to any claim under this chapter that: [1983,
c. 145 (new).]
1. Lack of impairment. An alleged
nonconformity does not substantially impair the use, safety or value of
the motor vehicle; or [1985, c. 220, § 4 (amd).]
2. Abuse. A nonconformity is the
result of abuse, neglect or unauthorized modifications or alterations of a
motor vehicle by anyone other than the manufacturer, its agents or
authorized dealers since delivery to the consumer. [1983, c. 145 (new).]
10 § 1165.
Informal dispute settlement
If a manufacturer has established an informal dispute settlement procedure
which complies in all respects with the provisions of 16 Code of Federal
Regulations, Part 703, as from time to time amended, the provisions of
section 1163, subsection 2, concerning refunds or replacement shall not
apply to any consumer who has not first resorted to that procedure or to
state-certified arbitration. This requirement shall be satisfied 40 days
after notification to the informal dispute settlement procedure of the
dispute or when the procedure's duties under 16 Code of Federal
Regulations, Part 703.5 (d), are completed, whichever occurs sooner.
[1989, c. 570, §4 (amd).]
10 § 1166.
Unfair or deceptive trade practice
A violation of any of the provisions of this chapter shall be considered
prima facie evidence of an unfair or deceptive trade practice under Title
5, chapter 10. [1985, c. 220, § 6 (new).]
10 § 1167.
Attorney's fees
In the case of a consumer's successful action to enforce any liability
under this chapter, a court may award reasonable attorney's fees and costs
incurred in connection with the action. [1985, c. 220, § 7 (new).]
10 § 1168. New
car leases
For the purposes of this chapter only, the following apply to leases of
new motor vehicles. [1987, c. 359, § 8 (new).]
1. Warranties.
If express warranties are regularly furnished to purchasers of
substantially the same kind of motor vehicles:
A. Those warranties are deemed to apply to
the leased motor vehicles; and [2003, c. 337, §6 (amd).]
B. The consumer lessee is deemed to be the
first purchaser of the motor vehicle for the purpose of any warranty
provisions limiting warranty benefits to the original purchaser. [2003, c.
337, §6 (amd).]
[2003, c. 337, §6 (amd).]
2. Lessee's rights.
The lessee of a motor vehicle has the same rights under this chapter
against the manufacturer and any person making express warranties that the
lessee would have under this chapter if the vehicle had been purchased by
the lessee. The manufacturer and any person making express warranties have
the same duties and obligations under this chapter with respect to the
vehicle that the manufacturer and other person would have under this
chapter if the goods had been sold to the lessee. [1987, c. 359, § 8
(new).]
3. Termination of lease
and obligations. The lessee's lease agreement with the motor
vehicle lessor and all contractual obligations terminate upon a decision
that the vehicle does not conform to the vehicle's express warranty and
the return of the vehicle to the lessor. The lessee may not be liable to
the manufacturer or motor vehicle lessor for any further costs or charges
under the lease agreement. The motor vehicle lessor shall release the
motor vehicle title to the manufacturer upon payment by the manufacturer
under this chapter. [1999, c. 212, §3 (new).]
10 § 1169.
State motor vehicle dispute arbitration and mediation
1. Neutral new car
arbitration. All manufacturers shall submit to state-certified
motor vehicle arbitration if arbitration is requested by the consumer
within 3 years from the date of original delivery to the consumer of a
motor vehicle or within the term of the express warranties, whichever
comes first, and the State has accepted the application as making proper
Maine Lemon Law claims. State-certified arbitration must be performed by
one or more neutral arbitrators selected by the Department of the Attorney
General operating in accordance with the rules adopted pursuant to this
chapter. The Attorney General may contract with an independent entity to
provide arbitration or the Attorney General's office may appoint neutral
arbitrators. Each party to an arbitration is entitled to one rejection of
a proposed arbitrator. [2003, c. 337, §7 (amd).]
2. Written findings.
Each arbitration results in a written finding of whether the motor vehicle
in dispute meets the standards set forth by this chapter for vehicles that
are required to be replaced or refunded. This finding must be issued
within 45 days of receipt by the Department of the Attorney General of a
properly completed written request by a consumer for state-certified
arbitration under this section. All findings of fact issuing from a
state-certified arbitration must be taken as admissible evidence of
whether the standards set forth in this chapter for vehicles required to
be refunded or replaced have been met in any subsequent action brought by
either party ensuing from the matter considered in the arbitration. The
finding reporting date may be extended by 5 days if the arbitrator seeks
an independent evaluation of the motor vehicle. In addition to the other
remedies provided by this chapter, the arbitrator may award a consumer
whose motor vehicle is required to be replaced or refunded reasonable
witness fees for a professional motor vehicle mechanic or engineer who
prepared a notarized report on the condition of the vehicle or who
testified at the arbitration hearing on behalf of the consumer. [1999, c.
212, §4 (amd).]
3. Administered by
Attorney General. The Department of the Attorney General shall
promulgate rules governing the proceedings of state-certified arbitration
which shall promote fairness and efficiency. These rules shall include,
but are not limited to, a requirement of the personal objectivity of each
arbitrator in the results of the dispute that that arbitrator will hear,
and the protection of the right of each party to present its case and to
be in attendance during any presentation made by the other party. [1989,
c. 570, §5 (new).]
4. Consumer arbitration
relief. If a motor vehicle is found by state-certified arbitration
to have met the standards set forth in section 1163, subsection 2, for
vehicles required to be replaced or refunded, and if the manufacturer of
the motor vehicle is found to have failed to provide the refund or
replacement as required, the manufacturer shall, within 21 days from the
receipt of a finding, deliver the refund or replacement, including the
costs and collateral charges set forth in section 1163, subsection 2, or
appeal the finding in Superior Court. For good cause, a manufacturer may
seek from the Department of the Attorney General an extension of the time
within which it must deliver to the consumer a replacement vehicle. [1989,
c. 570, §5 (new).]
5. Appeal of
arbitration decision. An appeal by a manufacturer or the consumer
of the arbitrator's findings may not be heard unless the petition for
appeal is filed with the Superior Court of the county in which the sale
occurred, within 21 days of issuance of the finding of the state-certified
arbitration. The appeal must be a trial de novo. The arbitrator and the
Department of the Attorney General may not be parties in any such appeal
and may not be called as witnesses. The Department of the Attorney General
may submit an amicus curiae brief.
In the event that any state-certified arbitration resulting in an award of
a refund or replacement is upheld by the court, recovery by the consumer
may include continuing damages up to the amount of $25 per day for each
day subsequent to the day the motor vehicle was returned to the
manufacturer, pursuant to section 1163, that the vehicle was out of use as
a direct result of any nonconformity not issuing from owner negligence,
accident, vandalism or any attempt to repair or substantially modify the
vehicle by a person other than the manufacturer, its agent or authorized
dealer, provided that the manufacturer did not make a comparable vehicle
available to the consumer free of charge.
In addition to any other recovery, any prevailing consumer must be awarded
reasonable attorney's fees and costs. If the court finds that the
manufacturer did not have any reasonable basis for its appeal or that the
appeal was frivolous, the court shall double the amount of the total award
to the consumer. [1999, c. 212, §4 (amd).]
6. Consumer's rights if
arbitrator denies relief. The provisions of this chapter shall not
be construed to limit or restrict in any way the rights or remedies
provided to consumers under this chapter or any other state law. In
addition, if any consumer is dissatisfied with any finding of
state-certified arbitration, the consumer shall have the right to apply to
the manufacturer's informal dispute settlement procedure, if the consumer
has not already done so, or may appeal that finding to the Superior Court
of the county in which the sale occurred, within 21 days of the decision.
[1989, c. 570, §5 (new).]
7. Disclosure of
consumer lemon law rights. A clear and conspicuous disclosure of
the rights of the consumer under this chapter shall be provided by the
manufacturer to the consumer along with ownership manual materials. The
form and manner of these notices shall be prescribed by rule of the
Department of the Attorney General. The notice disclosures shall not
include window stickers. [1989, c. 570, §5 (new).]
8. Manufacturer's
failure to abide by arbitrator's decision. The failure of a
manufacturer either to abide by the decision of state-certified
arbitration or to file a timely appeal shall entitle any prevailing
consumer who has brought an action to enforce this chapter to an award of
no less than 2 times the actual award, unless the manufacturer can prove
that the failure was beyond the manufacturer's control or can show it was
the result of a written agreement with the consumer. [1989, c. 570, §5
(new).]
9. Consumer request for
information. Upon request from the consumer, the manufacturer or
dealer shall provide a copy of all repair records for the consumer's motor
vehicle and all reports relating to that motor vehicle, including reports
by the dealer or manufacturer concerning inspection, diagnosis or
test-drives of that vehicle and any technical reports, bulletins or
notices issued by the manufacturer regarding the specific make and model
of the consumer's new motor vehicle as it pertains to any material,
feature, component or the performance of the motor vehicle. [1989, c. 570,
§5 (new).]
10. Penalties.
It shall be prima facie evidence of an unfair trade practice under Title
5, chapter 10, for a manufacturer, within 21 days of receipt of any
finding in favor of the consumer in state-certified arbitration, to fail
to appeal the finding and not deliver a refund or replacement vehicle or
not receive from the Department of the Attorney General an extension of
time for delivery of the replacement vehicle. [1989, c. 570, §5 (new).]
11. Arbitration and
mediation account. To defray the costs incurred by the Department
of the Attorney General in resolving consumer new and used motor vehicle
disputes through the lemon law arbitration program and, for vehicles that
do not qualify for arbitration, the consumer mediation service, the
following fees are imposed.
A. A $1 lemon law arbitration program fee
must be collected by the authorized new car dealer from the purchaser as
part of each new motor vehicle sale agreement. [1993, c. 415, Pt. K, §2
(new).]
B. A $1 consumer mediation service fee must
be collected by the used car dealer from the purchaser as part of each
used motor vehicle sale agreement. [1993, c. 415, Pt. K, §2 (new).]
The Secretary of State shall adopt rules to implement this subsection. The
rules must provide that the fees imposed by this subsection must be
forwarded annually by the dealer or its successor to the Secretary of
State and deposited in the General Fund. At the end of each fiscal year,
the Department of the Attorney General shall prepare a report listing the
money generated by these fees during the fiscal year and the expenses
incurred in administering its consumer dispute resolution programs. [1993,
c. 415, Pt. K, §2 (rpr).]
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