Chapter 90: Section 7N
- Voiding contracts of sale.
Section 7N. Notwithstanding any
disclaimer of warranty, a motor vehicle contract of sale may be voided by
the buyer if the motor vehicle fails to pass, within seven days from the
date of such sale, the periodic staggered inspection at an inspection
station licensed pursuant to section seven W; provided, that the defects
which are the reasons for the failure to issue a certificate of inspection
were not caused by the abusive or negligent operation of the motor vehicle
or by damage resulting from an accident or collision occurring after the
date of the sale; and provided, further, that the cost of repairs
necessary to permit the issuance of a certificate of inspection exceeds
ten per cent of the purchase price of the motor vehicle.
In order to void a motor vehicle sale under this section the buyer shall,
within fourteen days from the date of sale, notify the seller of his
intention to do so, deliver the motor vehicle to the seller, provide the
seller with a written statement signed by an authorized agent of such
inspection station stating the reasons why the motor vehicle failed to
pass the safety or combined safety and emissions inspection and an
estimate of the cost of necessary repairs. The buyer shall be entitled to
a refund of his purchase price unless the buyer and seller agree in
writing that the seller may make the necessary repairs at his own cost and
expense within a reasonable period of time thereafter. This section shall
apply only to motor vehicles purchased for the immediate personal or
family use of the buyer.
Chapter 90: Section 7N¼ - Express
warranty by dealer of used motor vehicle; issuance; consumer's rights and
remedies.
Section 7N¼ (1) For the purposes of
this section the following words shall have the following meanings:--
"Business day", Monday to Friday, inclusive,
except for state or federal holidays.
"Consumer", a buyer, other than for purposes of resale, of a motor
vehicle, any person to whom such motor vehicle is transferred during the
period of any express or statutory warranty under this section applicable
to such motor vehicle, and any other person entitled by the terms of such
warranty to enforce its obligations.
"Dealer", any person engaged in the
business of selling, offering for sale, or negotiating the retail sale of
used motor vehicles or selling motor vehicles as broker or agent for
another, including the officers, agents and employees of such person and
any combination or association of dealers, but not including a bank or
other financial institution, or the commonwealth, its agencies, bureaus,
boards, commissions, authorities, nor any of its political subdivisions. A
person shall be deemed to be engaged in the business of selling used motor
vehicles if such person has sold more than three used motor vehicles in
the preceding twelve months.
"Motor vehicle" or
"vehicle", any motor vehicle as defined in section one, sold or
replaced by a dealer or manufacturer, except that it shall not include
auto homes, vehicles built primarily for off-road use or any vehicle used
primarily for business purposes.
"Private seller", any person who is not a
dealer and who offers to sell or sells a used motor vehicle to a consumer.
"Purchase price", the total of all payments
made for the purchase of a vehicle, including but not limited to any
finance charges, registration fees, payments made for credit life,
accident, health, and damage insurance, and collision and related
comprehensive insurance coverages and service contracts and the value of a
trade-in.
"Repurchase price", the purchase price, as
defined above, less any cash award that was made by the dealer in an
attempt to resolve the dispute and was accepted by the consumer, and less
any refunds or rebates to which the consumer is entitled, plus any
incidental damages not previously reimbursed, including but not limited to
the reasonable costs of towing from point of breakdown up to thirty miles
to obtain required repairs or to return the vehicle under this section,
and the reasonable costs of obtaining alternative transportation during
the applicable warranty period after the second day following each such
breakdown not to exceed fifteen dollars vehicle rental charges for each
day in which the cost of such alternative transportation is reimbursable.
"Used motor vehicle" or
"used vehicle", any vehicle driven more than the limited use
necessary in moving or road testing a new vehicle prior to delivery to a
consumer, including a demonstrator vehicle, except that it shall not
include auto homes, vehicles built primarily for off road use,
motorcycles, or any vehicle used primarily for business purposes.
(2)
(A)
(i) No used motor vehicle shall be sold in
the commonwealth by a dealer to a consumer unless accompanied by an
express written warranty covering the full cost of both parts and labor
necessary to repair any defect that impairs the said used motor vehicle's
safety or use; provided, however, that the consumer may be required to pay
no more than one hundred dollars total toward the repair of any covered
defect, series of defects or combination of defects during the warranty
period. Defects that affect only appearance shall not be deemed to impair
safety or use for the purposes of this section. For the purposes of this
section, defect shall include defect, malfunction or any combination or
defects or malfunctions.
(ii) Defects or malfunctions which involve
parts or components that are covered or are warranted under an express
warranty issued by the dealer of the used motor vehicle shall be excluded
from this section if the following conditions have been met: the
manufacturer's warranty has been duly assigned or transferred to the
buyer; is enforceable according to its terms; is not inconsistent with
this section; and, the seller has assured that the repair authorized by
such manufacturer's express warranty was made.
The terms of the seller's warranty shall be tolled for any period of time
the used motor vehicle is out of service by reason of repair under the
manufacturer's warranty.
(B) The express warranties required by this
section shall be of the following durations:
(i) For a used motor vehicle which, at the
time of sale, has been operated less than forty thousand miles, ninety
days or three thousand seven hundred and fifty miles, whichever occurs
first. Said ninety days or three thousand seven hundred and fifty mile
warranty is in addition to any right the consumer may have under section
seven N?.
(ii) For a used motor vehicle which, at the
time of sale, has been operated forty thousand miles or more, but less
than eighty thousand miles, sixty days or two thousand five hundred miles,
whichever first occur.
(iii) For a used motor vehicle which, at the
time of sale, has been operated eighty thousand miles or more, but less
than one hundred and twenty-five thousand miles, thirty days or one
thousand two hundred and fifty miles, whichever first occur.
(iv) If the used motor vehicle's true mileage
is not known, such warranty period shall be determined by the age of said
used motor vehicle in the following manner: a used motor vehicle three
years old or less shall have a warranty as provided in clause (i); a used
motor vehicle more than three, but less than six years old, shall have a
warranty as provided in clause (ii); and a used motor vehicle six years
old or more shall have a warranty as provided in clause (iii). A used
motor vehicle's age shall be determined by subtracting its model year from
the year in which the warranty holder purchased said used vehicle.
(C) The warranty periods established by this
section shall be tolled during any period in which the used motor vehicle
is out of service as a result of any repair attempt pursuant to any
warranty created by this section. The applicable warranty period shall be
extended thirty days from the date of completion of any repair required by
this section as to the defect repaired if the warranty would otherwise
have expired during such period.
(3)
(A) A dealer may repair, within the meaning
of this section, either by performing the repair himself or by arranging
and making payment for prompt repair by another.
(i) A consumer shall return a vehicle for
repair under this section by presenting it to the dealer no later than
five business days after the expiration of the applicable warranty period
and informing him of the defect. Said return period shall be tolled during
any time period in which the consumer has notified the dealer of the
defect but cannot reasonably present the vehicle to the dealer; including,
but not limited to, the reason that a used motor vehicle is inoperable and
the dealer refuses to pay the charge to tow said vehicle. The dealer shall
immediately accept return of a vehicle when it is so presented. Said used
motor vehicle shall be deemed out of service commencing the day it is so
presented, notwithstanding any dealer's failure to accept its return on
said day. During the applicable warranty period and the aforesaid return
period, the dealer shall pay the reasonable costs of towing from point of
breakdown up to thirty miles to obtain required repairs or to return the
vehicle to the dealer.
Upon return of the used motor vehicle to the consumer after repair, the
dealer shall provide the consumer with a warranty repair receipt
describing (a) the defect complained of, (b) the work performed in an
attempt to correct such defect and the identity of the repairer if it is
not the dealer, and (c) the parts replaced in performing such work. For
the dealer to toll the ten business day period as provided in clause (ii)
of this paragraph said dealer shall attach to each such warranty repair
receipt copies of such order forms, invoices, receipts or other evidence
of a parts order and its receipt to evidence his compliance with this
paragraph.
(ii) If the dealer fails to repair the same
defect within three attempts, or if the used motor vehicle is out of
service for more than a cumulative total of ten business days after the
consumer has returned it to the dealer for repair of the same, then the
dealer shall accept return of the vehicle from the consumer and refund the
full repurchase price, less a reasonable allowance for use. A reasonable
allowance for use shall be fifteen cents for each mile the used motor
vehicle has been operated between its sale and the dealer's repurchase.
A consumer shall have the option of retaining the use of any vehicle
returned under the provisions of this section until such time as said
consumer has been tendered a full refund. The use of any vehicle retained
by a consumer after its return to a manufacturer under the provisions of
this section, shall, in instances in which a refund is tendered, be
reflected in the above-mentioned reasonable allowance for use.
A used motor vehicle shall not be considered out of service for purposes
of the ten business-day period described hereinabove for any day in which
a part necessary to repair a defect complained of is not in the dealer's
possession; provided, however, that the dealer has ordered the part by
reasonable means on the same day on which he knew or should have known
that the part was necessary, except that in no event shall a part's
unavailability operate to toll the ten business-day period for more than
twenty-one days. The applicable warranty period shall be extended by the
number of days a part is unavailable.
(iii) All dealers shall submit to
state-certified, used car arbitration, if such arbitration is requested by
the consumer, asserting his or her right to a repurchase under this
section, within six months from the date of original delivery to such
consumer of a used motor vehicle. State-certified, used car arbitration
shall be performed by a professional arbitrator or arbitration firm
appointed by the secretary of consumer affairs and business regulation and
operating in accordance with the regulations promulgated pursuant to this
section, and shall result in a written finding of whether the motor
vehicle in dispute meets the standards set forth by this section for
vehicles that are required to be repurchased. Said finding shall be issued
within forty-five days of receipt by said secretary of a request by a
consumer for state-certified arbitration under this section. Said
secretary shall promulgate rules and regulations governing the proceedings
of state-certified, used car arbitration which shall promote their
fairness and efficiency. Such rules and regulations shall include, but not
be limited to, a requirement of the personal objectivity of each such
arbitrator, 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.
If a motor vehicle is found by state-certified, used car arbitration to
have met the standards set forth by this section for vehicles required to
be repurchased, and if the dealer who sold said motor vehicle is found to
have failed to provide said refund as required, such dealer shall, within
twenty-one days from the issuance of such finding, deliver such refund,
including the incidental and other costs set forth in the definition of
"repurchase price" or appeal the finding in a district or superior court.
No such appeal by a dealer shall be heard unless the petition for such
appeal is filed with the clerk of the district or superior court within
twenty-one days of issuance of the finding of the state-certified
arbitration and is accompanied by a bond in a principal sum equal to the
money award made by the state-certified arbitrator plus five hundred
dollars for anticipated attorneys' fees, secured by cash or its
equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section
shall be limited to the indemnification of the consumer in the action.
Such bond shall not limit or impair any right of recovery otherwise
available pursuant to law, nor shall the amount of the bond be relevant in
determining the amount of recovery to which the consumer shall be
entitled.
Upon an appeal, the court shall vacate the award only if:
(a) the award was procured by corruption,
fraud or other undue means;
(b) there was evident partiality by an
arbitrator or corruption in any of the arbitrators, or misconduct
prejudicing the rights of any party; or
(c) the arbitrators exceeded their powers.
In addition to any other rights and remedies, any consumer dissatisfied
with any finding of state-certified, used car arbitration shall have the
right to file a claim pursuant to chapter ninety-three A.
In addition to any other recovery, any prevailing consumer shall be
awarded reasonable attorneys' fees and costs.
Whoever, within twenty-one days of any finding in favor of the consumer of
the state-certified, used car arbitration, fails to appeal such finding
and does not deliver a refund shall be punished by a fine of fifty dollars
per day until the delivery of such refund. Said fine shall not exceed five
hundred dollars for each such violation. The amount of said fine shall
begin to accumulate on the twenty-second day following the arbitration
decision. If eighty-one days has elapsed from the issuance of a finding in
favor of the consumer of the state-certified, used car arbitration, and no
appeal has been taken and no award delivered and no fine paid, the
attorney general shall initiate proceedings against dealer for failure to
pay said fine. The proceedings initiated pursuant to the provisions of
this section shall be commenced in superior court department of the trial
court.
In addition to the remedies hereinbefore provided, the attorney general
may bring an action on behalf of the commonwealth to restrain further
violation of this section, to enforce any provision, and for such other
relief as may be appropriate.
(iv) At any time within the applicable
warranty period and after a consumer has complained of a defect,
notwithstanding any objection from the consumer, the dealer shall have the
option of repurchasing a used vehicle and refunding the full repurchase
price, less a reasonable allowance for use. A reasonable allowance for use
shall be fifteen cents for each mile the used motor vehicle had been
operated between its sale and the dealer's repurchase.
(v) If the dealer is required to or elects to
repurchase a vehicle under the terms of this section, the consumer and
dealer shall cooperate with each other to execute all necessary documents
in order to clear the title of any encumbrances on the repurchased
vehicle.
(B) It shall be an affirmative defense to any
claim under this section that an alleged defect (i) does not impair the
vehicle's use or safety, (ii) is the result of owner negligence, abuse,
damage caused by accident, vandalism, or, an attempt to repair the vehicle
by a person other than the dealer, the dealer's designee, or the
manufacturer's representative under clause (ii) of paragraph (A) of
subsection (2), (iii) is the result of any attempt by the consumer to
modify the vehicle, (iv) was covered or warranted under an express
warranty issued by the manufacturer of such used motor vehicle, that such
warranty issued by the manufacturer of such used motor vehicle was in
effect during the warranty period established by this section, so long as
the conditions in said clause (ii) of said paragraph (A) of said
subsection (2) are met.
(4) Clear and conspicuous notice of the
warranties created by this section, of the rights pertaining thereto, and
of the implied warranty of merchantability shall be given to the consumer
in writing at the time the consumer purchases a used motor vehicle from
the dealer. Failure to provide such notice shall toll the warranty periods
under this section until such notice is given.
(5) The secretary of consumer affairs and
business regulation shall promulgate rules and regulations to implement
the notice provisions of this section. Said rules and regulations shall
include the establishment of wording, format, placement, and distribution
of all notices specified in this section. In her discretion, and in order
to facilitate ease of understanding by consumers, said secretary may
consolidate the notices required by this section and any other notices
pertaining to the purchase of motor vehicles; provided, however, that such
consolidation does not render the notices inconsistent with any of the
provisions of this section or any other law. Each notice required by this
section shall describe the procedures available to redress violations of
this section and shall contain the telephone number of the attorney
general's consumer protection division complaint section and the executive
office of consumer affairs and business regulation.
(6) A dealer's failure to comply with any of
the provisions of this section shall constitute an unfair or deceptive act
under the provisions of chapter ninety-three A.
(7) Notwithstanding any provisions of law to
the contrary, this section shall not apply to any used motor vehicle sold
by a dealer to a consumer for less than seven hundred dollars.
(8) A private seller shall clearly disclose
to any prospective buyer, before the sale is completed, all defects the
seller knows of which impair the used motor vehicle's safety or
substantially impair its use. Failure to so disclose known defects shall
entitle the buyer, within thirty days after the sale, to rescind the sale
and be entitled to return of all monies paid to the seller less a
reasonable amount for use as defined in clause (iv) of paragraph (A)
subsection (3). In any subsequent action by a buyer under this section, if
the court finds that the settlement offer was unreasonable in light of the
circumstances or that the private seller has otherwise failed to comply
with the requirements of this subsection, in addition to damages, it shall
award the buyer reasonable attorneys' fees and costs; if the court finds
that the buyer's action was frivolous or not in good faith, it shall award
the seller reasonable attorneys' fees and costs. It shall be an
affirmative defense in any such action that an alleged defect does not
impair the vehicle's safety, or substantially impair its use, or that it
is the result of the buyer's negligence, abuse, damage caused by accident,
vandalism or attempt to modify the vehicle.
(9) Nothing in this section shall be
construed in any way to limit the enforceability of any implied warranties
created by law, any rights created by section seven N or seven N?, or
chapter ninety-three A or any rules and regulations promulgated pursuant
thereto, or express warranties given by a dealer in connection with the
sale of a used motor vehicle, or any other rights or remedies available to
consumers under applicable law.
(10) If a consumer is eligible for relief
under the provisions of section seven N?, to have repairs effected or
other relief provided under the provisions of an express warranty covering
such used motor vehicle issued by the manufacturer of such used motor
vehicle, said consumer shall make reasonable effort in accordance with the
terms and conditions thereof to obtain such relief or repairs before
seeking enforcement of rights under this section. If the consumer,
notwithstanding his eligibility to do so, is unable to enforce rights
under said section seven N? or under such express warranty and the dealer
provides such relief or, in accordance with the provisions of this
section, repurchases such used motor vehicle, the dealer shall be
subrogated to the rights of such consumer against such manufacturer under
the provisions of said section seven N?, such express warranty and
otherwise in accordance with applicable law, and may enforce the same in
his name in the superior court or district court department. Such
manufacturer shall hold the dealer harmless from and against all damages,
liabilities, losses and reasonable expenses of suit, including reasonable
attorneys' fees arising out of or incurred by the dealer by its compliance
with the provisions of this section if such manufacturer, having been
notified in writing by the dealer that such rights have been asserted by a
consumer, fails to resolve the same at its own expense in or within seven
business days.
(11) The licensing authorities responsible
pursuant to section fifty-nine of chapter one hundred and forty for
licensing used motor vehicle dealers shall distribute copies of this
section to each dealer licensed at any time a license is granted or
renewed.
(12) The provisions of this section shall not
apply to the sale of a leased vehicle by a lessor to the lessee of said
vehicle, a family member or employee of said lessee or to the sale of a
used motor vehicle by an employer to his employee.
(13) Any action brought pursuant to this
section shall be commenced within two years of the date of original
delivery of the used motor vehicle to the consumer. (Added by 1987, 289,
Sec. 1.)
Chapter 90:
Section 7N½. Defective or malfunctioning new motor vehicles; sale and
repair or replacement.
Section 7N½. (1)
For purposes of this section the following terms shall have the following
meanings:
"Business day", any day during which the
service departments of authorized dealers of the manufacturer of the motor
vehicle are normally open for business.
"Consumer", a buyer or lessee, other than for purposes of resale, of a
motor vehicle, any person to whom such motor vehicle is transferred during
the duration of any express or implied warranty applicable to such motor
vehicle, and any other person entitled by the terms of such warranty to
enforce its obligations.
"Dealer", any class one seller of motor
vehicles as defined in section fifty-eight of chapter one hundred and
forty.
"Lessee", any person who acquires the right
to possession of and use of a motor vehicle under a lease agreement for a
term of not less than one year.
"Manufacturer", any person who is engaged in
the business of manufacturing motor vehicles, or, in the case of motor
vehicles not manufactured in the United States, any person who is engaged
in the business of importing motor vehicles.
"Motor vehicle" or
"vehicle", any motor vehicle as defined in section one sold, leased
or replaced by a dealer or manufacturer after the effective date of this
section, except that it shall not include auto homes, vehicles built
primarily for off-road use or any vehicle used primarily for business
purposes.
"Nonconformity", any specific or generic
defect or malfunction, or any concurrent combination of such defects or
malfunctions that substantially impairs the use, market value or safety of
a motor vehicle.
"Term of protection", one year or fifteen
thousand miles of use from the date of original delivery of a new motor
vehicle, whichever comes first; or, in the case of a replacement vehicle
provided by a manufacturer to a consumer under this section, one year or
fifteen thousand miles from the date of delivery to the consumer of said
replacement vehicle, whichever comes first.
(2) If a motor vehicle does not conform to
any applicable express or implied warranty, and the consumer reports the
nonconformity to the manufacturer of the vehicle, its agent or its
authorized dealer during the term of protection, the manufacturer, its
agent or its authorized dealer shall effect such repairs as are necessary
to conform the vehicle to such warranty.
If the manufacturer, its agent or authorized dealer does not conform the
motor vehicle to any such applicable express or implied warranty by curing
any nonconformity after a reasonable number of attempts, the manufacturer
shall accept return of the vehicle from the consumer. In instances in
which a vehicle is sold and subsequently returned, the manufacturer shall
refund the full contract price of the vehicle including all credits and
allowances for any trade-in vehicle, less any cash award that was made by
the manufacturer in an attempt to resolve the dispute and was accepted by
the consumer, and a reasonable allowance for use, or shall offer to
replace the vehicle. In instances in which a vehicle is leased and
subsequently returned, the manufacturer shall refund all payments made by
the consumer to the manufacturer under the terms of the lease agreement
less any cash award that was made by the manufacturer in an attempt to
resolve the dispute and was accepted by the consumer, and a reasonable
allowance for use, or shall offer to replace the vehicle. The consumer
shall have an unqualified right to reject a manufacturer's offer of
replacement and demand a refund. In instances in which a vehicle is
replaced by a manufacturer under the provisions of this section, said
manufacturer shall reimburse the consumer for any fees for the transfer of
registration or any sales tax incurred by the consumer as a result of such
replacement. In instances in which a leased vehicle is replaced by a
manufacturer under the terms of this section, an identical model vehicle
shall be provided to the consumer for the remaining term of the original
lease agreement. In instances in which a vehicle which was financed by the
manufacturer or its subsidiary or agent is replaced under the provisions
of this section, said manufacturer, subsidiary or agent shall not require
the consumer to enter into any refinancing agreement which would create
any financial obligations upon such consumer beyond those implied by the
original financing agreement. In instances in which a vehicle which was
leased from a dealer or manufacturer is replaced under the provisions of
this section, said dealer or manufacturer shall not require the consumer
to enter into any lease agreement which would create any financial
obligations upon such consumer beyond those implied by the original lease
agreement. In instances in which a refund is tendered under the provisions
of this section, the manufacturer shall also reimburse the consumer for
incidental costs including sales tax, registration fee, finance charges
and any cost of options added by an authorized dealer. Whenever a vehicle
is replaced a refund is given under the provisions of this section, in
instances in which towing services and rental vehicles were not made
available at no cost to the consumer, the manufacturer shall also
reimburse the consumer for towing and reasonable rental costs that were a
direct result of vehicle nonconformity. Refunds shall be made to the
consumer and lienholder, if any, as their interests may appear. A
reasonable allowance for use for all motor vehicles other than motorcycles
shall be obtained by multiplying the total contract price of the vehicle,
or in the case of a leased vehicle the total amount of payments made by
the consumer to the manufacturer under the terms of the lease agreement,
by a fraction having as its denominator one hundred thousand and having as
its numerator the number of miles that vehicle traveled prior to the
manufacturer's acceptance of its return. A reasonable allowance for use
for motorcycles shall be obtained by multiplying the total contract price
of the motorcycle by a fraction having as its denominator twenty-five
thousand and having as its numerator the number of miles that the vehicle
traveled prior to the manufacturer's acceptance of its return.
It shall be an affirmative defense to any claim under this section: (i)
that an alleged nonconformity does not substantially impair the use,
market value or safety of the vehicle; (ii)
that a nonconformity is the result of owner negligence, damage caused by
accident, vandalism, or attempt to repair the vehicle by a person other
than the manufacturer, its agent or authorized dealer; or (iii) that a
nonconformity is the result of any attempt substantially to modify the
vehicle which was not authorized by the manufacturer.
A consumer shall have the option of retaining the use of any vehicle
returned under the provisions of this section until such time as said
consumer has been tendered a full refund or a replacement that is
acceptable to the consumer. The use of any vehicle retained by a consumer
after its return to a manufacturer under the provisions of this section,
shall, in instances in which a refund is tendered, be reflected in the
above mentioned reasonable allowance for use.
(4) A reasonable number of attempts shall be
deemed to have been undertaken to conform a motor vehicle to any
applicable express or implied warranties if (a) the same nonconformity has
been subject to repair three or more times by the manufacturer or its
agents or authorized dealers within the term of protection, but such
nonconformity continues to exist or such nonconformity has recurred within
the term of protection, or (b) the vehicle is out of service by reason of
repair of any nonconformity for a cumulative total of fifteen or more
business days during the term of protection; provided, however, that the
manufacturer shall be afforded one additional opportunity, not to exceed
seven business days, to cure any nonconformity arising during the term of
protection, notwithstanding the fact that such additional opportunity to
cure commences after the term of protection. Such additional opportunity
to cure shall commence on the day the manufacturer first knows or should
have known that the limits specified in clause (a) or (b) have been met or
exceeded. The term of protection, said fifteen business day period and
said additional opportunity to cure shall be extended by any period of
time during which repair services are not available to the consumer as a
direct result of a war, invasion, fire, flood or other natural disaster.
The term of protection, said fifteen business day period and said
additional opportunity to cure shall also be extended by that period of
time during which repair services are not available as a direct result of
a strike; provided, however, that the manufacturer, its agent, or
authorized dealer provides or makes provision for the free use of a
vehicle to any consumer whose vehicle is out of service by reason of
repair during a strike. The burden shall be on the manufacturer to show
that any event claimed as a reason for an extension under the provisions
of this paragraph was the direct cause for the failure of the
manufacturer, its agent or authorized dealer to cure any nonconformity
during the time of said event. Extensions for concurrent events shall not
be cumulative.
(5) Nothing in this section shall be
construed as imposing any liability on an authorized dealer or creating
any cause of action by a consumer against a dealer under the provisions of
this section.
Nothing in this section shall be construed to limit the rights or remedies
which are otherwise available to a consumer or manufacturer under any
other applicable provision of law.
Nothing in this section shall be construed as imposing any liability on a
dealer or creating a cause of action by a manufacturer against its
authorized dealer under this section except with respect to (i) failure by
an authorized dealer to properly effect preparation, installation of
options or repairs when such preparation, installation of options or
repairs would have prevented the occurrence of or cured a nonconformity;
(ii) express warranties offered by an authorized dealer which exceed the
provisions of the manufacturer's express warranties; and (iii) that
portion of the cost of reimbursing a consumer for dealer-added options
which represents the dealer profit from the addition of such options. The
manufacturer shall reimburse its authorized dealer for all incidental and
consequential damages, including attorney's fees, incurred by such dealer
as a direct result of any legal action brought by a consumer under this
section.
No consumer shall be required by any manufacturer, its agent or its
authorized dealer to give notice directly to a manufacturer of the
existence of any nonconformity before resorting to state-certified, new
car arbitration.
No motor vehicle that is returned to the manufacturer under the provisions
of this section shall be resold in the commonwealth without clear and
conspicuous written disclosure of the fact that it was so returned prior
to resale of the vehicle. The attorney general shall prescribe the exact
form and content of any such disclosure statement.
(6) All manufacturers shall submit to
state-certified, new car arbitration, if such arbitration is requested by
the consumer within eighteen months from the date of original delivery to
such consumer of a new motor vehicle. State-certified, new car arbitration
shall be performed by a professional arbitrator or arbitration firm
appointed by the secretary of consumer affairs and business regulation and
operating in accordance with the regulations promulgated pursuant to this
section, and shall result in a written finding of whether the motor
vehicle in dispute meets the standards set forth by this section for
vehicles that are required to be replaced or refunded. Said finding shall
be issued within forty-five days of receipt by said secretary of a request
by a consumer for state-certified arbitration under this section. Said
secretary shall promulgate rules and regulations governing the proceedings
of state-certified, new car arbitration which shall promote their fairness
and efficiency. Such rules and regulations shall include, but not be
limited to, a requirement of the personal objectivity of each arbitrator
in the results of the dispute he 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. All findings of fact issuing from a
state-certified, new car arbitration shall be taken as prima facie
evidence of whether the standards set forth in this section 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 said
arbitration.
If a motor vehicle is found by state-certified, new car arbitration to
have met the standards set forth by this section for vehicles required to
be replaced or refunded, and if the manufacturer of said motor vehicle is
found to have failed to provide said refund or replacement as required,
such manufacturer shall, within twenty-one days from the issuance of such
finding, deliver such refund or replacement, including the incidental and
other costs set forth in subsection (3), or appeal the finding in superior
court. No appeal by a manufacturer shall be heard unless the petition for
such appeal is filed with the clerk of the superior court within
twenty-one days of issuance of the finding of the state-certified
arbitration and is accompanied by a bond in a principal sum equal to the
money award made by the state-certified arbitrator plus two thousand five
hundred dollars for anticipated attorneys' fees, secured by cash or its
equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section
shall be limited to the indemnification of the consumer in the action.
Such bond shall not limit or impair any right of recovery otherwise
available pursuant to law, nor shall the amount of the bond be relevant in
determining the amount of recovery to which the consumer shall be
entitled. 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 shall include continuing damages in the amount of twenty-five
dollars per day for each day, subsequent to the day the motor vehicle was
returned to the manufacturer pursuant to subsection three, that said
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, however, 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 shall
be awarded reasonable attorneys' 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 made to the consumer. Any consumer dissatisfied with any finding of
state-certified, new car arbitration shall have the right to file a claim
pursuant to chapter ninety-three A.
(6A) A clear and conspicuous listing of the
rights of the consumer under this section shall be affixed by a sticker to
a window of each new motor vehicle offered for sale or lease in the
commonwealth. An enumeration of these rights shall also be provided along
with ownership manual materials. The form and manner of these notices
shall be prescribed by the secretary of consumer affairs and business
regulations.
(7) Failure to comply with any of the
provisions of this section shall constitute an unfair or deceptive act
under the provisions of chapter ninety-three A. The failure of a
manufacturer either to abide by the decision of a state-certified
arbitration or to file a timely appeal shall entitle any prevailing
consumer to an award of no less than two times the actual damages, unless
said manufacturer can prove that such failure was beyond his control. For
the purposes of said chapter ninety-three A, the timely delivery by a
manufacturer of a refund or acceptable replacement, pursuant to a finding
by state-certified arbitration, shall constitute the granting of relief
upon demand.
The secretary of consumer affairs and business regulation shall inform the
office of the attorney general of any method, act or practice of which she
is aware that is deemed by her to be a violation of any provision of this
section.
(8) Whoever, within twenty-one days of any
finding in favor of the consumer of the state-certified, new car
arbitration, fails to appeal such finding and does not deliver a refund or
replacement vehicle or notify the consumer of the estimated delivery date
of the replacement vehicle, shall be punished by a fine of five thousand
dollars per day until the delivery of such refund or replacement. The
estimated delivery date shall not exceed sixty days from the date the
manufacturer notifies the consumer that a delivery will be made. Said fine
shall not exceed fifty thousand dollars for each such violation. The
amount of said fine shall begin to accumulate on the twenty-second day
following the arbitration decision. If eighty-one days has elapsed from
the issuance of a finding in favor of the consumer of the state-certified,
new car arbitration and no appeal has been taken and no award delivered
and no fine paid, the attorney general shall initiate proceedings against
said manufacturer for failure to pay said fine. The proceedings initiated
pursuant to the provisions of this section shall be commenced in superior
court department of the trial court.
In addition to the remedies hereinbefore provided, the attorney general
may bring an action on behalf of the commonwealth to restrain further
violation of this section, to enforce any provision, and for such other
relief as may be appropriate.
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