§ 357-D:1
Intent. - The legislature finds and declares that manufacturers,
distributors and importers of new motor vehicles should be obligated to
provide speedy and less costly resolution of automobile warranty problems.
Manufacturers should be required to provide in as expeditious a manner as
possible a refund of the consumer's purchase price, payments to a lessor
and lessee, or a replacement vehicle that is acceptable to the consumer
whenever the manufacturer is unable to make the vehicle conform with its
applicable warranty. New motor vehicle dealers and used motor vehicle
dealers cannot be sued under this chapter.
Source. 1991,
222:1, eff. Jan. 1, 1992.
§ 357-D:2
Definitions. - In this chapter:
I. "Board" means
the New Hampshire new motor vehicle arbitration board.
II. "Business day"
means any day during which the service departments of authorized dealers
of the manufacturer of the motor vehicle are normally open for business.
III. "Consumer"
means the purchaser, other than for purposes of resale of a new motor
vehicle; the lessee of a new motor vehicle, other than for the purpose of
sublease; any person to whom such motor vehicle is transferred during the
duration of an express warranty applicable to the motor vehicle; or any
other person entitled by the terms of the warranty to enforce the
obligations of the warranty. "Consumer" shall not include any governmental
entity.
IV. "Distributor"
means any person who sells or distributes new or used motor vehicles to
motor vehicle dealers or who maintains distributor representatives within
this state.
V. "Early termination
costs" means expenses and obligations incurred by a motor vehicle
lessee as a result of an early termination of a written lease agreement
and surrender of a motor vehicle to a manufacturer, including penalties
for prepayment of finance arrangements.
VI. "Factory branch"
means any branch office maintained by a manufacturer for the purpose of
selling, leasing, or offering for sale or lease, vehicles to a distributor
or new motor vehicle dealer or for directing or supervising, in whole or
in part, factory distributor representatives.
VII. "Lease"
or "leased" means a written agreement with a
lessee which shall be for the use of a motor vehicle for consideration for
a term of 2 or more years.
VIII. "Lessee"
means any consumer who leases a motor vehicle pursuant to a written lease
agreement for a term of 2 or more years.
IX. "Manufacturer"
means any person, resident or nonresident, who manufactures or assembles
new motor vehicles, or imports for distribution through distributors of
motor vehicles or any partnership, firm, association, joint venture,
corporation or trust, resident or nonresident, which is controlled by a
manufacturer. The term "manufacturer" includes distributors and factory
branches.
X. "Motor vehicle"
means:
(a) A motor vehicle, as defined in RSA
259:60, of the private passenger or station wagon type with a gross weight
not exceeding 9,000 pounds that is purchased or leased by a consumer; or
(b) Any other 4-wheel motor vehicle with a
gross weight not exceeding 9,000 pounds, except tractors, and mopeds; or
(c) Motorcycles, or
(d) Any off highway recreational vehicle as
defined in RSA 215-A:1, VI.
XI. "Motor vehicle
dealer" means any person engaged in the business of selling,
offering to sell, leasing, soliciting or advertising the sale of new or
used motor vehicles or possessing motor vehicles for the purpose of resale
either on his own account or on behalf of another, either as his primary
business or incidental thereto. However, "motor vehicle dealer" shall not
include:
(a) Receivers, trustees, administrators,
executors, guardians, or other persons appointed by or acting under
judgment, decree or order of any court; or
(b) Public officers while performing their
duties as such officers.
XII. "Motor vehicle
lessor" means a person who holds title to a motor vehicle leased to
a lessee under written lease agreement for a term of 2 or more years, or
who holds the lessor's rights under such an agreement.
XIII. "New motor
vehicle" means a passenger motor vehicle which is still under the
manufacturer's express warranty.
XIV. "Nonconformity"
means a defect or condition that substantially impairs the use, value or
safety of a motor vehicle, but does not include a defect or condition that
results from an accident, abuse, neglect, modification, or alteration of
the motor vehicle by persons other than the manufacturer or its authorized
service agent.
XV. "Warranty"
includes express warranties as defined in the Uniform Commercial Code, RSA
382-A, plus any written warranty of the manufacturer.
Source. 1991,
222:1. 1994,
220:1,
2, eff. Jan. 1, 1995. 2002,
215:1,
eff. July 1, 2002.
§ 357-D:3
Enforcement of Warranties. - I. Every new motor
vehicle sold in this state shall conform to all applicable warranties.
II. It shall be the manufacturer's obligation
under this chapter to insure that all new motor vehicles sold or leased in
this state conform with the manufacturer's express warranties. The
manufacturer may delegate responsibility to its agents or authorized
dealers provided, however, in the event the manufacturer delegates its
responsibility under this chapter to its agents or authorized dealers, it
shall compensate the dealer for all work performed by the dealer in
satisfaction of the manufacturer's responsibility under this chapter.
III. 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 authorized dealer during
the term of the warranty, the manufacturer shall cause whatever repairs
are necessary to conform the vehicle to the warranties, notwithstanding
the fact that the repairs are made after the expiration of a warranty
term.
IV. A manufacturer, its agent or authorized
dealer shall not refuse to provide a consumer with a written repair order
and shall provide to the consumer, each time the consumer's vehicle is
brought in for examination or repair of a defect, a written summary of the
complaint and a fully itemized statement indicating all work performed on
the vehicle including, but not limited to, examination of the vehicle,
parts, and labor.
V. If, after a reasonable number of attempts,
the manufacturer, its agent or authorized dealer or its delegate is unable
to conform the motor vehicle to any express warranty by repairing or
correcting any defect or condition covered by the warranty which
substantially impairs the use, market value, or safety of the motor
vehicle to the consumer, the manufacturer shall, at the option of the
consumer within 30 days of the effective date of the board's order,
replace the motor vehicle with a new motor vehicle from the same
manufacturer, if available, of comparable worth to the same make and model
with all options and accessories with appropriate adjustments being
allowed for any model year differences or shall accept return of the
vehicle from the consumer and refund to the consumer the full purchase
price or to the lessee, in the case of leased vehicles, as provided in
paragraph IX. In those instances in which a refund is tendered, the
manufacturer shall refund to the consumer the full purchase price as
indicated in the purchase contract and all credits and allowances for any
trade-in or down payment, license fees, finance charges, credit charges,
registration fees, and any similar charges and incidental and
consequential damages or, in the case of leased vehicles, as provided in
paragraph IX. Refunds shall be made to the consumer and lienholder, if
any, as their interests may appear, or to the motor vehicle lessor and
lessee as provided in paragraph IX. A reasonable allowance for use shall
be that amount directly attributable to use by the consumer prior to the
first repair attempt and shall be calculated by multiplying the full
purchase price of the vehicle by a fraction having as its denominator
100,000, or for a motorcycle or OHRV with an engine size of 250 cubic
centimeters or smaller 20,000, or for a motorcycle or OHRV with an engine
size greater than 250 cubic centimeters 40,000, and having as its
numerator the number of miles that the vehicle traveled prior to the first
attempt at repairing the vehicle.
VI. It shall be an affirmative defense to any
claim under this chapter that an alleged nonconformity does not
substantially impair the use, market value, or safety or that the
nonconformity is the result of abuse, neglect, or unauthorized
modifications or alterations of a motor vehicle by a consumer.
VII. It shall be presumed that a reasonable
number of attempts have been undertaken to conform a motor vehicle to the
applicable warranties if:
(a) The same nonconformity as identified in
any written examination or repair order has been subject to repair at
least 3 times by the manufacturer, it agent, or authorized dealer within
the express warranty term and the same nonconformity continues to exist;
or
(b) The vehicle is out of service by reason
of repair of one or more nonconformities, defects, or conditions for a
cumulative total of 30 or more business days during the term of the
express warranty. The term of any warranty and the 30-day period shall be
extended by any period of time during which repair services were not
available to the consumer because of war, invasion, strike, fire, flood,
or other natural disaster. If an extension of time is necessitated due to
these conditions, the manufacturer shall provide for the free use of a
vehicle to the consumer whose vehicle is out of service. A vehicle shall
not be deemed out of service if it is available to the consumer for a
major part of the day.
VIII. In order for an attempt at repair to
qualify for the presumptions of this section, the attempt at repair shall
be evidenced by a written examination or repair order issued by the
manufacturer, its agent, or its authorized dealer. The presumptions of
this section shall only apply to 3 attempts at repair evidenced by written
examination or repair orders undertaken by the same agent or authorized
dealer, unless the consumer shows good cause for taking the vehicle to a
different agent or authorized dealer.
IX. In cases in which a refund is tendered by
a manufacturer for a leased motor vehicle under paragraph V, the refund
and rights of the motor vehicle lessor, lessee, and manufacturer shall be
in accordance with the following:
(a) The manufacturer shall provide to the
lessee the aggregate deposit and rental payments previously paid to the
motor vehicle lessor by the lessee, and incidental and consequential
damages, if applicable, minus a reasonable allowance for use. The
aggregate deposit shall include, but not be limited to, all cash payments
and trade-in allowances tendered by the lessee to the motor vehicle lessor
under the lease agreement. The reasonable allowance for use shall be
calculated by multiplying the aggregate deposit and rental payments made
by the lessee on the motor vehicle by a fraction having as its denominator
100,000 or for a motorcycle or OHRV 20,000, and having as its numerator
the number of miles that the vehicle traveled prior to the first attempt
to repair the vehicle.
(b) The manufacturer shall provide to the
motor vehicle lessor the aggregate of the following:
(1) The lessor's actual purchase cost, less
payments made by the lessee;
(2) The freight cost, if applicable;
(3) The cost for dealer or
manufacturer-installed accessories, if applicable;
(4) Any fee paid to another to obtain the
lease;
(5) An amount equal to 5 percent of the
lessor's actual purchase cost as prescribed in subparagraph IX(b)1). The
amount in this subparagraph shall be instead of any early termination
costs.
(c) The lessee's lease agreement with the
motor vehicle lessor and all contractual obligations shall be terminated
upon a decision of the board in favor of the lessee. The lessee shall not
be liable for any further costs or charges to the manufacturer or motor
vehicle lessor under the lease agreement.
(d) The motor vehicle lessor shall release
the motor vehicle title to the manufacturer upon the payment by the
manufacturer under the provisions of this section.
(e) The board shall give notice to the motor
vehicle lessor of the lessee's filing of a request for arbitration under
this chapter and shall notify the motor vehicle lessor of the date, time
and place scheduled for a hearing before the board. The motor vehicle
lessor shall provide testimony and evidence necessary to the arbitration
proceedings. Any decision of the board shall be binding upon the motor
vehicle lessor.
Source. 1991,
222:1; 1992,
282:15, eff.
Jan. 1, 1993. 2002, 215:2,
3, eff. July 1, 2002.
§ 357-D:4
Procedure to Obtain Refund or Replacement. - I. After the third attempt at repair or
correction of the nonconformity, defect or condition, or after the vehicle
is out of service by reason of repair of one or more nonconformities,
defects or conditions for a cumulative total of 30 or more business days
as provided in this chapter, the consumer shall notify the manufacturer
along with a clear and conspicuous disclosure notice of the rights of the
consumer under this chapter at the time the new motor vehicle is
delivered, of the nonconformity, defect or condition and the consumer's
election to proceed under this chapter. The forms shall be made available
by the manufacturer to the New Hampshire new motor vehicle arbitration
board, and any other public or nonprofit agencies that shall request them.
Forms and notices shall be in a form prescribed by rule of the department
of justice and shall not include window stickers. The consumer shall, in
the notice, elect whether to use the dispute settlement mechanism or the
arbitration provisions established by the manufacturer or to proceed under
the New Hampshire new motor vehicle arbitration board as established under
this chapter. The consumer's election of whether to proceed before the
board or the manufacturer's dispute settlement mechanism shall preclude
his recourse to the method not selected.
II. A consumer shall not pursue a remedy
under this chapter if he has discontinued financing or lease payments, if
the payments have been discontinued due to the manufacturer's breach of
obligation under this chapter or due to a breach of the manufacturer's
warranties.
III. A consumer who elects to proceed before
the board shall pay a filing fee of $ 50 and the manufacturer shall pay a
filing fee of $ 250. Such fees shall be retained by the department of
safety and used to defray costs associated with the work of the board,
including per diem costs of board members and any other administrative
expenses.
IV. Arbitration of the consumer's complaint,
either through the manufacturer's dispute settlement mechanism or the
board, shall be held within 40 days of receipt by the manufacturer or the
board and the manufacturer of the consumer's notice electing the remedy of
arbitration unless the consumer or the manufacturer has good cause for an
extension of time, not to exceed an additional 30-day period. If the
extension of time is requested by the manufacturer, the manufacturer shall
provide free use of a vehicle to the consumer if the consumer's vehicle is
out of service. In the event the consumer elects to proceed in accordance
with the manufacturer's dispute settlement mechanism and the arbitration
of the dispute is not held within 40 days of the manufacturer's receipt of
the consumer's notice and the manufacturer is not able to establish good
cause for the delay, the consumer shall be entitled to receive the relief
requested under this chapter.
V. Within the 40-day period set forth in
paragraph IV, the manufacturer shall have one final opportunity to correct
and repair the defect which the consumer claims entitles him to a refund
or replacement vehicle. If the consumer is satisfied with the corrective
work done by the manufacturer or his delegate, the arbitration proceedings
shall be terminated without prejudice to the consumer's right to request
that arbitration be recommended as provided in RSA 357-D:11, I(b) if the
repair proves unsatisfactory.
VI. The manufacturer shall refund the
reasonable allowance provided for in RSA 357-D:3, V or IX, or make the
replacement required by the board within 30 days of a decision of the
board or within 15 days of final adjudication.
Source. 1991,
222:1. 1994,
220:3, eff. Jan.
1, 1995.
§ 357-D:5 New Motor Vehicle Arbitration Board Established;
Administrative Attachment; Rulemaking; Decisions. - I. There is created a New Hampshire new motor
vehicle arbitration board consisting of 5 members and 3 alternate members
to be appointed by the governor and council. Terms of members shall be for
3 years. Board members may be appointed for no more than 2 terms. One
member and one alternate of the board shall be new car dealers in New
Hampshire, one member and one alternate shall be persons knowledgeable in
automobile mechanics, and 3 members and one alternate shall be persons who
represent consumers and have no direct involvement in the design,
manufacture, distributions, sales or service of motor vehicles or their
parts. Three members of the board shall constitute a quorum. Members shall
be paid $50 per diem plus mileage.
II. The board shall be administratively
attached to the department of safety under RSA 21-G:10.
III. The board shall adopt rules, pursuant to
RSA 541-A, to implement the provisions of this chapter.
IV. The board shall hold a hearing within 40
days of receipt of a complaint, unless an extension of time has been
granted by the board under RSA 357-D:4, IV, and shall render a decision
within 30 days of the conclusion of a hearing. The board shall have the
authority to issue only damages as are provided by this chapter.
Source. 1991,
222:1. 1994,
220:4,
5, eff. Jan. 1, 1995.
§ 357-D:6
Appeal From Board's Decision. - I. The decision of the board shall be final
and shall not be modified or vacated unless, on appeal to the superior
court, a party to the arbitration proceeding proves, by clear and
convincing evidence, that:
(a) The award was procured by corruption,
fraud or other undue means.
(b) There was evident partiality by the board
or corruption or misconduct by the board prejudicing the rights of any
party.
(c) The board exceeded its powers.
(d) The board refused to postpone a hearing
after being shown sufficient cause to do so, refused to hear evidence
material to the controversy, or otherwise conducted the hearing contrary
to the rules adopted by the board so as to prejudice substantially the
rights of a party.
II. A party to the arbitration proceeding
shall not pursue an appeal until a final decision has been rendered by the
board. Any appeal shall be filed with the superior court within 30 days of
the date of the written board decision.
Source. 1991,
222:1. 1994,
220:6, eff. Jan.
1, 1995.
§ 357-D:7
Unfair and Deceptive Acts and Practices. -
Failure of the manufacturer or distributor to comply with a decision of
the board shall constitute an unfair or deceptive act or practice under
RSA 358-A:2.
Source. 1991,
222:1, eff. Jan. 1, 1992.
§ 357-D:8
Dealer's Liability. - Nothing in this chapter imposes any liability
on a franchised motor vehicle dealer or creates a cause of action by a
consumer against a dealer, except for written express warranties made by
the dealer apart from the manufacturer's warranties. A dealer shall not be
made a party defendant in any action involving or relating to this
chapter, except as provided in this section. 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 from this chapter.
Source. 1991,
222:1, eff. Jan. 1, 1992.
§ 357-D:9
Notification to Consumers; Rulemaking by Department
of Justice. - Beginning with the model year following July 1, 1992,
the manufacturer of every motor vehicle sold in this state shall provide a
clear and conspicuous written notice of the consumer's rights under this
chapter as provided under RSA 357-D:4 at the time of the delivery of every
such new motor vehicle in this state. The manufacturer shall provide the
consumer with a self-addressed notice in a form developed in accordance
with rules adopted by the department of justice under RSA 541-A and
sufficient to notify the manufacturer of the consumer's election to
proceed under this chapter. The manufacturer shall not delegate this
responsibility to its authorized dealers. The manufacturer of every new
motor vehicle sold in this state shall also provide a clear and
conspicuous notice that informs consumers of their rights under this
chapter.
Source. 1991,
222:1, eff. Jan. 1, 1992.
§ 357-D:10
Costs and Attorney's Fees. - In any action by a consumer against
the manufacturer or distributor of a motor vehicle based upon the alleged
breach of an express warranty made in connection with the sale or lease of
such motor vehicle, the court, in its discretion, may award to the
plaintiff costs and reasonable attorney's fees. If the court determines
that the action was brought with no substantial justification, it may
award costs and reasonable attorney's fees to the defendant.
Source. 1991,
222:1, eff. Jan. 1, 1992.
§ 357-D:11 Limitations on Actions. - I. Any proceeding initiated under the
provisions of this chapter shall be commenced within one year following
the later of:
(a) The expiration of the express warranty
term; or
(b) The manufacturer's final repair attempt
of the nonconformity, as provided in RSA 357-D:4, V which gave rise to the
consumer's request that the vehicle be replaced or the money refunded.
II. Nothing in this chapter shall in any way
limit the rights or remedies which are otherwise available to a consumer
under any other provision of law.
Source. 1994,
220:7, eff. Jan. 1, 1995.
§ 357-D:12
Sale of Defective Motor Vehicles. - I.
For purposes of this section "a serious safety defect" means a
life-threatening malfunction or nonconformity that impedes the consumer's
ability to control or operate the motor vehicle for ordinary use or
reasonable intended purposes or creates a risk of fire or explosion.
II. Any manufacturer or its agent or
authorized dealer is prohibited from reselling in New Hampshire any
vehicle determined or adjudicated by the board as having a serious safety
defect.
Source. 1994,
395:1, eff. Jan. 1, 1995.
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