AN ACT Relating to new
motor vehicle warranties; amending RCW 19.118.021, 19.118.031, 19.118.041,
19.118.061, 19.118.080, 19.118.090, 19.118.110, and 46.12.380; adding new
sections to chapter 19.118 RCW; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 19.118.021 and 1990
c 239 s 1 are each amended to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Board"
means new motor vehicle arbitration board.
(2) "Collateral
charges" means any sales or lease related charges including but not
limited to sales tax, use tax, arbitration service fees, unused license fees,
unused registration fees, unused title fees, finance charges, prepayment
penalties, credit disability and credit life insurance costs not otherwise
refundable, any other insurance costs prorated for time out of service,
transportation charges, dealer preparation charges, or any other charges for
service contracts, undercoating, rustproofing, or factory or dealer installed options.
(3)
"Condition" means a general problem that results from a defect or
malfunction of one or more parts, or their improper installation by the
manufacturer, its agents, or the new motor vehicle dealer.
(4)
"Consumer" means any person who has entered into an agreement or
contract for the transfer, lease, or purchase of a new motor vehicle, other
than for purposes of resale or sublease, during the duration of the warranty
period defined under this section.
(5) "Court"
means the superior court in the county where the consumer resides, except if
the consumer does not reside in this state, then the superior court in the
county where an arbitration hearing or determination was conducted or made
pursuant to this chapter.
(6) "Incidental
costs" means any reasonable expenses incurred by the consumer in
connection with the repair of the new motor vehicle, including any towing
charges and the costs of obtaining alternative transportation.
(7)
"Manufacturer" means any person engaged in the business of constructing
or assembling new motor vehicles or engaged in the business of importing new
motor vehicles into the United States for the purpose of selling or
distributing new motor vehicles to new motor vehicle dealers.
"Manufacturer" does not include any person engaged in the business of
set-up of motorcycles as an agent of a new motor vehicle dealer if the person
does not otherwise construct or assemble motorcycles.
(8)
"Motorcycle" means any motorcycle as defined in RCW 46.04.330 which
has an engine displacement of at least seven hundred fifty cubic centimeters.
(9) "New motor
vehicle" means any new self-propelled vehicle, including a new motorcycle,
primarily designed for the transportation of persons or property over the
public highways that((, after original retail purchase or lease)) was
originally purchased or leased at retail from a new motor vehicle dealer or
leasing company in this state, and that was initially registered in
this state or for which a temporary motor vehicle license was issued pursuant
to RCW 46.16.460, but does not include vehicles purchased or leased by a
business as part of a fleet of ten or more vehicles at one time or under a
single purchase or lease agreement. If the motor vehicle is a motor home,
this chapter shall apply to the self-propelled vehicle and chassis, but does
not include those portions of the vehicle designated, used, or maintained
primarily as a mobile dwelling, office, or commercial space. The term
"new motor vehicle" does not include trucks with nineteen thousand
pounds or more gross vehicle weight rating. The term "new motor
vehicle" includes a demonstrator or lease-purchase vehicle as long as a
manufacturer's warranty was issued as a condition of sale.
(10) "New motor
vehicle dealer" means a person who holds a dealer agreement with a
manufacturer for the sale of new motor vehicles, who is engaged in the business
of purchasing, selling, servicing, exchanging, or dealing in new motor
vehicles, and who is licensed or required to be licensed as a vehicle
dealer by the state of Washington.
(11)
"Nonconformity" means a defect, serious safety defect, or condition
that substantially impairs the use, value, or safety of a new motor vehicle,
but does not include a defect or condition that is the result of abuse, neglect,
or unauthorized modification or alteration of the new motor vehicle.
(12) "Purchase
price" means the cash price of the new motor vehicle appearing in the
sales agreement or contract((, including any allowance for a trade-in
vehicle;)).
(a) "Purchase
price" in the instance of a lease means the ((purchase price or value
of the vehicle declared to the department of licensing for purposes of tax
collection)) actual written capitalized cost disclosed to the consumer
contained in the lease agreement. If there is no disclosed capitalized cost in
the lease agreement the "purchase price" is the manufacturer's
suggested retail price including manufacturer installed accessories or items of
optional equipment displayed on the manufacturer label, required by 15 U.S.C.
Sec. 1232.
(b) "Purchase
price" in the instance of both a vehicle purchase or lease agreement
includes any allowance for a trade-in vehicle but does not include any
manufacturer-to-consumer rebate appearing in the agreement or contract that the
consumer received or that was applied to reduce the purchase or lease cost.
Where the consumer is a
((second or)) subsequent ((purchaser, lessee, or)) transferee and
the consumer selects repurchase of the motor vehicle, "purchase
price" means the consumer's subsequent purchase price ((of the
second or subsequent purchase or lease)). Where the consumer is a ((second
or)) subsequent ((purchaser, lessee, or)) transferee and the
consumer selects replacement of the motor vehicle, "purchase price"
means the original purchase price.
(13) "Reasonable
offset for use" means the definition provided in RCW 19.118.041(1)(c) for
a new motor vehicle other than a new motorcycle. The reasonable offset for use
for a new motorcycle shall be computed by the number of miles that the vehicle
traveled before the manufacturer's acceptance of the vehicle upon repurchase or
replacement multiplied by the purchase price, and divided by twenty-five
thousand.
(14) "Reasonable
number of attempts" means the definition provided in RCW 19.118.041.
(15) "Replacement
motor vehicle" means a new motor vehicle that is identical or reasonably
equivalent to the motor vehicle to be replaced, as the motor vehicle to be
replaced existed at the time of original purchase or lease, including any
service contract, undercoating, rustproofing, and factory or dealer installed
options.
(16) "Serious
safety defect" means a life-threatening malfunction or nonconformity that
impedes the consumer's ability to control or operate the new motor vehicle for
ordinary use or reasonable intended purposes or creates a risk of fire or
explosion.
(17) "Subsequent
transferee" means a consumer who acquires a motor vehicle, within the
warranty period, as defined in this section, with an applicable manufacturer's
written warranty and where the vehicle otherwise met the definition of a new
motor vehicle at the time of original retail sale or lease.
(18)
"Substantially impair" means to render the new motor vehicle
unreliable, or unsafe for ordinary use, or to diminish the resale value of the
new motor vehicle below the average resale value for comparable motor vehicles.
(((18))) (19)
"Warranty" means any implied warranty, any written warranty of the
manufacturer, or any affirmation of fact or promise made by the manufacturer in
connection with the sale of a new motor vehicle that becomes part of the basis
of the bargain. The term "warranty" pertains to the obligations of
the manufacturer in relation to materials, workmanship, and fitness of a new
motor vehicle for ordinary use or reasonably intended purposes throughout the
duration of the warranty period as defined under this section.
(((19))) (20)
"Warranty period" means the period ending two years after the date of
the original delivery to the consumer of a new motor vehicle, or the first
twenty-four thousand miles of operation, whichever occurs first.
Sec. 2. RCW 19.118.031 and 1987
c 344 s 3 are each amended to read as follows:
(1) ((Each new motor
vehicle dealer shall provide an owner's manual which shall be published by the
manufacturer and include a list of the addresses and phone numbers for its zone
or regional offices for this state.)) The manufacturer shall publish an
owner's manual and provide it to the new motor vehicle dealer or leasing
company. The owner's manual shall include a list of the addresses and phone
numbers for the manufacturer's customer assistance division, or zone or
regional offices. A manufacturer shall provide to the new motor vehicle dealer
or leasing company all applicable manufacturer's written warranties. The
dealer or leasing company shall transfer to the consumer, at the time of original
retail sale or lease, the owner's manual and applicable written warranties as
provided by a manufacturer.
(2) At the time of
purchase, the new motor vehicle dealer shall provide the consumer with a
written statement that explains the consumer's rights under this chapter. The
written statement shall be prepared and supplied by the attorney general and
shall contain a toll-free number that the consumer can contact for information
regarding the procedures and remedies under this chapter.
(3) For the purposes of
this chapter, if a new motor vehicle does not conform to the warranty and the
consumer reports the nonconformity during the term of the warranty period or
the period of coverage of the applicable manufacturer's written warranty,
whichever is less, to the manufacturer, its agent, or the new motor vehicle
dealer who sold the new motor vehicle, the manufacturer, its agent, or the new
motor vehicle dealer shall make repairs as are necessary to conform the vehicle
to the warranty, regardless of whether such repairs are made after the
expiration of the warranty period. Any corrections or attempted repairs
undertaken by a new motor vehicle dealer under this chapter shall be treated as
warranty work and billed by the dealer to the manufacturer in the same manner
as other work under the manufacturer's written warranty is billed. For
purposes of this subsection, the manufacturer's written warranty shall be at
least one year after the date of the original delivery to the consumer of the
vehicle or the first twelve thousand miles of operation, whichever occurs
first.
(4) Upon request from
the consumer, the manufacturer or new motor vehicle dealer shall provide a copy
of any report or computer reading compiled by the manufacturer's field or zone
representative regarding inspection, diagnosis, or test-drive of the consumer's
new motor vehicle, or shall provide a copy of any technical service bulletin
issued by the manufacturer regarding the year and model of the consumer's new
motor vehicle as it pertains to any material, feature, component, or the
performance thereof.
(5) The new motor
vehicle dealer shall provide to the consumer each time the consumer's vehicle
is returned from being diagnosed or repaired under the warranty, a fully
itemized, legible statement or repair order indicating any diagnosis made, and
all work performed on the vehicle including but not limited to, a general
description of the problem reported by the consumer or an identification of the
defect or condition, parts and labor, the date and the odometer reading when
the vehicle was submitted for repair, and the date when the vehicle was made
available to the consumer.
(6) No manufacturer,
its agent, or the new motor vehicle dealer may refuse to diagnose or repair any
nonconformity covered by the warranty for the purpose of avoiding liability
under this chapter.
(7) For purposes of
this chapter, consumers shall have the rights and remedies, including a cause
of action, against manufacturers as provided in this chapter.
(8) The warranty period
and thirty-day out-of-service period shall be extended by any time that repair
services are not available to the consumer as a direct result of a strike, war,
invasion, fire, flood, or other natural disaster.
Sec. 3. RCW 19.118.041 and 1989
c 347 s 2 are each amended to read as follows:
(1) If the
manufacturer, its agent, or the new motor vehicle dealer is unable to conform
the new motor vehicle to the warranty by repairing or correcting any
nonconformity after a reasonable number of attempts, the manufacturer, within
forty calendar days of a consumer's written request to the manufacturer's
corporate, dispute resolution, zone, or regional office address shall, at the
option of the consumer, replace or repurchase the new motor vehicle.
(a) The replacement
motor vehicle shall be identical or reasonably equivalent to the motor vehicle
to be replaced as the motor vehicle to be replaced existed at the time of
original purchase or lease, including any service contract, undercoating, rustproofing,
and factory or dealer installed options. Where the manufacturer supplies a
replacement motor vehicle, the manufacturer shall be responsible for sales tax,
license, ((and)) registration fees, and refund of any incidental
costs. Compensation for a reasonable offset for use shall be paid by the
consumer to the manufacturer in the event that the consumer accepts a
replacement motor vehicle.
(b) When repurchasing
the new motor vehicle, the manufacturer shall refund to the consumer the
purchase price, all collateral charges, and incidental costs, less a reasonable
offset for use. When repurchasing the new motor vehicle, in the instance of a
lease, the manufacturer shall refund to the consumer all payments made by the
consumer under the lease including but not limited to all lease payments,
trade-in value or inception payment, security deposit, all collateral charges
and incidental costs less a reasonable offset for use. The manufacturer shall
make such payment to the lessor and/or lienholder of record as necessary to
obtain clear title to the motor vehicle and upon the lessor's and/or
lienholder's receipt of that payment and payment by the consumer of any late
payment charges, the consumer shall be relieved of any future obligation to the
lessor and/or lienholder.
(c) The reasonable
offset for use shall be computed by multiplying the number of miles that the
vehicle traveled directly attributable to use by the consumer times the
purchase price, and dividing the product by one hundred twenty thousand.
Where the consumer is a second or subsequent purchaser, lessee, or transferee
of the motor vehicle and the consumer selects repurchase of the motor vehicle,
"the number of miles that the vehicle traveled" shall be calculated
from the date of purchase or lease by the consumer. Where the consumer is a
second or subsequent purchaser, lessee, or transferee of the motor vehicle and
the consumer selects replacement of the motor vehicle, "the number of
miles that the vehicle traveled" shall be calculated from the original
purchase, lease, or in-service date.
(2) Reasonable number
of attempts shall be deemed to have been undertaken by the manufacturer, its
agent, or the new motor vehicle dealer to conform the new motor vehicle to the
warranty within the warranty period, if: (a) The same serious safety defect
has been subject to diagnosis or repair two or more times, at least one of
which is during the period of coverage of the applicable manufacturer's written
warranty, and the serious safety defect continues to exist; (b) the same
nonconformity has been subject to diagnosis or repair four or more times, at
least one of which is during the period of coverage of the applicable
manufacturer's written warranty, and the nonconformity continues to exist; or
(c) the vehicle is out-of-service by reason of diagnosis or repair of one or
more nonconformities for a cumulative total of thirty calendar days, at least
fifteen of them during the period of the applicable manufacturer's written
warranty. For purposes of this subsection, the manufacturer's written warranty
shall be at least one year after the date of the original delivery to the
consumer of the vehicle or the first twelve thousand miles of operation,
whichever occurs first.
(3) No new motor
vehicle dealer may be held liable by the manufacturer for any collateral
charges, incidental costs, purchase price refunds, or vehicle replacements.
Manufacturers shall not have a cause of action against dealers under this
chapter. Consumers shall not have a cause of action against dealers under this
chapter, but a violation of any responsibilities imposed upon dealers under
this chapter is a per se violation of chapter 19.86 RCW. Consumers may pursue
rights and remedies against dealers under any other law, including chapters
46.70 and 46.71 RCW. Manufacturers and consumers may not make dealers parties
to arbitration board proceedings under this chapter.
Sec. 4. RCW 19.118.061 and 1989
c 347 s 3 are each amended to read as follows:
(1) A manufacturer
shall be prohibited from reselling any motor vehicle determined or adjudicated
as having a serious safety defect unless the serious safety defect has been
corrected and the manufacturer warrants upon the first subsequent resale
that the defect has been corrected.
(2) ((After the
replacement or repurchase of a motor vehicle determined to have a nonconformity
or to have been out of service for thirty or more calendar days pursuant to
this chapter, the manufacturer shall notify the attorney general and the
department of licensing, by certified mail or by personal service, upon receipt
of the motor vehicle. If the nonconformity in the motor vehicle is corrected,
the manufacturer shall notify the attorney general and the department of
licensing of such correction.)) Before any sale or transfer of a
vehicle that has been replaced or repurchased by the manufacturer that was
determined or adjudicated as having a nonconformity or to have been out of
service for thirty or more calendar days under this chapter, the manufacturer
shall:
(a) Notify the
attorney general and the department of licensing, by certified mail or by
personal service, upon receipt of the motor vehicle;
(b) Attach a resale
disclosure notice to the vehicle in a manner and form to be specified by the
attorney general. Only the retail purchaser may remove the resale disclosure
notice after execution of the disclosure form required under subsection (3) of
this section; and
(c) Notify the
attorney general and the department of licensing if the nonconformity in the
motor vehicle is corrected.
(3) Upon the first
subsequent resale, either at wholesale or retail, or transfer of title of a
motor vehicle and which was previously returned after a final determination, adjudication,
or settlement under this chapter or under a similar statute of any other state,
the manufacturer, its agent, or the new motor vehicle dealer who has actual
knowledge of said final determination, adjudication or settlement, shall
execute and deliver to the buyer before sale an instrument in writing setting
forth information identifying the nonconformity in a manner to be specified by
the attorney general, and the department of licensing shall place on the
certificate of title information indicating the vehicle was returned under this
chapter.
(4) Upon receipt of the
manufacturer's notification under subsection (2) of this section that the
nonconformity has been corrected and upon the manufacturer's request and
payment of any fees, the department of licensing shall issue a new title with
information indicating the vehicle was returned under this chapter and that the
nonconformity has been corrected. Upon the first subsequent resale,
either at wholesale or retail, or transfer of title of a motor vehicle ((for
which a new title has been issued under this subsection)), as provided
under subsection (2)(c) of this section, the manufacturer shall warrant
upon the resale that the nonconformity has been corrected, and the
manufacturer, its agent, or the new motor vehicle dealer who has actual
knowledge of the corrected nonconformity, shall execute and deliver to the
buyer before sale an instrument in writing setting forth information
identifying the nonconformity and indicating that it has been corrected in a
manner to be specified by the attorney general.
(5) After repurchase
or replacement and following a manufacturer's receipt of a vehicle under this
section and prior to a vehicle's first subsequent retail transfer by resale or
lease, any intervening transferor of a vehicle subject to the requirements of
this section who has received the disclosure, correction and warranty
documents, as specified by the attorney general and required under this
chapter, shall deliver the documents with the vehicle to the next transferor,
purchaser or lessee to ensure proper and timely notice and disclosure. Any
intervening transferor who fails to comply with this subsection shall, at the
option of the subsequent transferor or first subsequent retail purchaser or
lessee: (a) Indemnify and subsequent transferor or first subsequent retail
purchaser for all damages caused by such violation; or (b) repurchase the
vehicle at the full purchase price including all fees, taxes and costs incurred
for goods and services which were included in the subsequent transaction.
Sec. 5. RCW 19.118.080 and 1989
c 347 s 4 are each amended to read as follows:
(1) Except as provided
in RCW 19.118.160, the attorney general shall contract with one or more private
entities to conduct arbitration proceedings in order to settle disputes between
consumers and manufacturers as provided in this chapter, and each private
entity shall constitute a new motor vehicle arbitration board for purposes of
this chapter. The entities shall not be affiliated with any manufacturer or
new motor vehicle dealer and shall have available the services of persons with
automotive technical expertise to assist in resolving disputes under this
chapter. No private entity or its officers or employees conducting board
proceedings and no arbitrator presiding at such proceedings shall be directly
involved in the manufacture, distribution, sale, or warranty service of any
motor vehicle. Payment to the entities for the arbitration services shall be made
from the new motor vehicle arbitration account.
(2) The attorney
general shall adopt rules for the uniform conduct of the arbitrations by the
boards whether conducted by a private entity or by the attorney general
pursuant to RCW 19.118.160, which rules shall include but not be limited to the
following procedures:
(a) At all arbitration
proceedings, the parties are entitled to present oral and written testimony, to
present witnesses and evidence relevant to the dispute, to cross-examine
witnesses, and to be represented by counsel.
(b) A dealer,
manufacturer, or other persons shall produce records and documents requested by
a party which are reasonably related to the dispute. If a dealer,
manufacturer, or other person refuses to comply with such a request, a party
may present a request to the board for the attorney general to
issue a subpoena on behalf of the board.
The subpoena shall be
issued only for the production of records and documents which the board has
determined are reasonably related to the dispute, including but not limited to
documents described in RCW 19.118.031 (4) or (5).
If a party fails to
comply with the subpoena, the arbitrator may at the outset of the arbitration
hearing impose any of the following sanctions: (i) Find that the matters which
were the subject of the subpoena, or any other designated facts, shall be taken
to be established for purposes of the hearing in accordance with the claim of
the party which requested the subpoena; (ii) refuse to allow the disobedient
party to support or oppose the designated claims or defenses, or prohibit that
party from introducing designated matters into evidence; (iii) strike claims or
defenses, or parts thereof; or (iv) render a decision by default against the
disobedient party.
If a nonparty fails to
comply with a subpoena and upon an arbitrator finding that without such
compliance there is insufficient evidence to render a decision in the dispute,
the attorney general shall enforce such subpoena in superior court and the
arbitrator shall continue the arbitration hearing until such time as the
nonparty complies with the subpoena or the subpoena is quashed.
(c) A party may obtain
written affidavits from employees and agents of a dealer, a manufacturer or
other party, or from other potential witnesses, and may submit such affidavits
for consideration by the board.
(d) Records of the
board proceedings shall be open to the public. The hearings shall be open to
the public to the extent practicable.
(e) Where the board
proceedings are conducted by one or more private entities, a single arbitrator
may be designated to preside at such proceedings.
(3) A consumer shall
exhaust the new motor vehicle arbitration board remedy or informal dispute
resolution settlement procedure under RCW 19.118.150 before filing any superior
court action.
(4) The attorney
general shall maintain records of each dispute submitted to the new motor
vehicle arbitration board, including an index of new motor vehicles by year,
make, and model.
(5) The attorney
general shall compile aggregate annual statistics for all disputes submitted
to, and decided by, the new motor vehicle arbitration board, as well as annual
statistics for each manufacturer that include, but shall not be limited to, the
number and percent of: (a) Replacement motor vehicle requests; (b) purchase
price refund requests; (c) replacement motor vehicles obtained in prehearing
settlements; (d) purchase price refunds obtained in prehearing settlements; (e)
replacement motor vehicles awarded in arbitration; (f) purchase price refunds
awarded in arbitration; (g) board decisions neither complied with during the
forty calendar day period nor petitioned for appeal within the thirty calendar
day period; (h) board decisions appealed categorized by consumer or
manufacturer; (i) the nature of the court decisions and who the prevailing
party was; (j) appeals that were held by the court to be brought without good
cause; and (k) appeals that were held by the court to be brought solely for the
purpose of harassment. The statistical compilations shall be public
information.
(6) The attorney
general shall submit biennial reports of the information in this section to the
senate and house of representatives committees on commerce and labor, with the
first report due January 1, 1990.
(7) The attorney
general shall adopt rules to implement this chapter. Such rules shall include
uniform standards by which the boards shall make determinations under this
chapter, including but not limited to rules which provide:
(a) A board shall find
that a nonconformity exists if it determines that the consumer's new motor
vehicle has a defect, serious safety defect, or condition that substantially
impairs the use, value, or safety of the vehicle.
(b) A board shall find
that a reasonable number of attempts to repair a nonconformity have been
undertaken if: (i) The same serious safety defect has been subject to
diagnosis or repair two or more times, at least one of which is during the
period of coverage of the applicable manufacturer's written warranty, and the
serious safety defect continues to exist; (ii) the same nonconformity has been
subject to diagnosis or repair four or more times, at least one of which is
during the period of coverage of the applicable manufacturer's written
warranty, and the nonconformity continues to exist; or (iii) the vehicle is
out-of-service by reason of diagnosis or repair of one or more nonconformities
for a cumulative total of thirty calendar days, at least fifteen of them during
the period of the applicable manufacturer's written warranty. For purposes of
this subsection, the manufacturer's written warranty shall be at least one year
after the date of the original delivery to the consumer of the vehicle or the
first twelve thousand miles of operation, whichever occurs first.
(c) A board shall find
that a manufacturer has failed to comply with RCW 19.118.041 if it finds that
the manufacturer, its agent, or the new motor vehicle dealer has failed to
correct a nonconformity after a reasonable number of attempts and the manufacturer
has failed, within forty days of the consumer's written request, to repurchase
the vehicle or replace the vehicle with a vehicle identical or reasonably
equivalent to the vehicle being replaced.
(8) The attorney
general shall provide consumers with information regarding the procedures and
remedies under this chapter.
Sec. 6. RCW 19.118.090 and 1989
c 347 s 5 are each amended to read as follows:
(1) A consumer may
request arbitration under this chapter by submitting the request to the
attorney general. Within ten days after receipt of an arbitration request, the
attorney general shall make a reasonable determination of the cause of the
request for arbitration and provide necessary information to the consumer
regarding the consumer's rights and remedies under this chapter. The attorney
general shall assign the dispute to a board, except that if it clearly appears
from the materials submitted by the consumer that the dispute is not eligible
for arbitration, the attorney general may refuse to assign the dispute and
shall explain any required procedures to the consumer.
(2) Manufacturers shall
submit to arbitration if such arbitration is requested by the consumer within
thirty months from the date of the original delivery of the new motor vehicle
to a consumer at retail and if the consumer's dispute is deemed eligible for
arbitration by the board.
(3) The new motor
vehicle arbitration board may reject for arbitration any dispute that it
determines to be frivolous, fraudulent, filed in bad faith, res judicata or
beyond its authority. Any dispute deemed by the board to be ineligible for
arbitration due to insufficient evidence may be reconsidered by the board upon
the submission of other information or documents regarding the dispute that
would allegedly qualify for relief under this chapter. Following a second
review, the board may reject the dispute for arbitration if evidence is still
clearly insufficient to qualify the dispute for relief under this chapter. A
rejection by the board is subject to review by the attorney general or may be
appealed under RCW 19.118.100.
A decision to reject
any dispute for arbitration shall be sent by certified mail to the consumer and
the manufacturer, and shall contain a brief explanation as to the reason
therefor.
(4) The manufacturer
shall complete a written manufacturer response to the consumer's request for
arbitration. The manufacturer shall provide a response to the consumer and the
board within ten calendar days from the date of the manufacturer's receipt of
the board's notice of acceptance of a dispute for arbitration. The
manufacturer response shall include all issues and affirmative defenses related
to the nonconformities identified in the consumer's request for arbitration
that the manufacturer intends to raise at the arbitration hearing.
(5) The
arbitration board shall award the remedies under RCW 19.118.041 if it finds a
nonconformity and that a reasonable number of attempts have been undertaken to
correct the nonconformity. The board shall award reasonable costs and
attorneys' fees incurred by the consumer ((in connection with board
proceedings)) where the manufacturer ((is)) has been directly
represented by counsel((.)): (a) In dealings with the consumer in
response to a request to repurchase or replace under RCW 19.118.041; (b) in
settlement negotiations; (c) in preparation of the manufacturer's statement; or
(d) at an arbitration board hearing or other board proceeding.
(((5))) (6)
It is an affirmative defense to any claim under this chapter that: (a) The
alleged nonconformity does not substantially impair the use, value, or safety
of the new motor vehicle; or (b) the alleged nonconformity is the result of
abuse, neglect, or unauthorized modifications or alterations of the new motor
vehicle.
(((6))) (7)
The board shall have forty-five calendar days from the date the board receives
the consumer's request for arbitration to hear the dispute. If the board
determines that additional information is necessary, the board may continue the
arbitration proceeding on a subsequent date within ten calendar days of the
initial hearing. The board shall decide the dispute within sixty calendar days
from the date the board receives the consumer's request for arbitration.
The decision of the
board shall be delivered by certified mail or personal service to the consumer
and the manufacturer, and shall contain a written finding of whether the new
motor vehicle meets the standards set forth under this chapter.
(((7))) (8)
The consumer may accept the arbitration board decision or appeal to superior
court, pursuant to RCW 19.118.100. Upon acceptance by the consumer, the
arbitration board decision shall become final. The consumer shall send written
notification of acceptance or rejection to the arbitration board within sixty
days of receiving the decision and the arbitration board shall immediately
deliver a copy of the consumer's acceptance to the manufacturer by certified
mail, return receipt requested, or by personal service. Failure of the consumer
to respond to the arbitration board within sixty calendar days of receiving the
decision shall be considered a rejection of the decision by the consumer. The
consumer shall have one hundred twenty calendar days from the date of rejection
to file a petition of appeal in superior court. At the time the petition of
appeal is filed, the consumer shall deliver, by certified mail or personal
service, a conformed copy of such petition to the attorney general.
(((8))) (9)
Upon receipt of the consumer's acceptance, the manufacturer shall have forty
calendar days to comply with the arbitration board decision or thirty calendar
days to file a petition of appeal in superior court. At the time the petition
of appeal is filed, the manufacturer shall deliver, by certified mail or
personal service, a conformed copy of such petition to the attorney general.
If the attorney general receives no notice of petition of appeal after forty
calendar days, the attorney general shall contact the consumer to verify compliance.
(((9) If, at the end
of the forty calendar day period, neither compliance with, nor a petition to
appeal the board's decision has occurred, the attorney general may impose a
fine of one thousand dollars per day until compliance occurs or a maximum penalty
of one hundred thousand dollars accrues unless the manufacturer can provide
clear and convincing evidence that any delay or failure was beyond its control
or was acceptable to the consumer as evidenced by a written statement signed by
the consumer. If the manufacturer fails to provide such evidence or fails to
pay the fine, the attorney general shall initiate proceedings against the
manufacturer for failure to pay any fine that accrues until compliance with the
board's decision occurs or the maximum penalty of one hundred thousand dollars
results. Where the attorney general prevails in an enforcement action
regarding any fine imposed under this subsection, the attorney general shall be
entitled to reasonable costs and attorneys' fees. Fines and recovered costs
and fees shall be returned to the new motor vehicle arbitration account.))
Sec. 7. RCW 19.118.110 and 1989
c 347 s 7 are each amended to read as follows:
A ((five-dollar))
three-dollar arbitration fee shall be collected by either the new motor
vehicle dealer or vehicle lessor from the consumer upon execution of a retail
sale or lease agreement. The fee shall be forwarded to the department of
licensing at the time of title application for deposit in the new motor vehicle
arbitration account hereby created in the state treasury. Moneys in the
account shall be used for the purposes of this chapter, subject to
appropriation.
At the end of each
fiscal year, the attorney general shall prepare a report listing the annual
revenue generated and the expenses incurred in implementing and operating the
arbitration program under this chapter.
NEW SECTION. Sec.
8. A new section is added
to chapter 19.118 RCW to read as follows:
(1) Compliance with an
arbitration board decision under this chapter must be accomplished at a time,
place, and in a manner to be determined by the mutual agreement of the consumer
and manufacturer.
(a) The consumer shall
make the motor vehicle available to the manufacturer free of damage other than
that related to any nonconformity, defect, or condition to which a warranty
applied, or that can reasonably be expected in the use of the vehicle for
ordinary or reasonably intended purposes and in consideration of the mileage attributable
to the consumer's use. Any insurance claims or settlement proceeds for repair
of damage to the vehicle due to fire, theft, vandalism, or collision must be
assigned to the manufacturer or, at the consumer's option, the repair must be
completed before return of the vehicle to the manufacturer.
The consumer may not
remove any equipment or option that was included in the original purchase or
lease of the vehicle or that is otherwise included in the repurchase or
replacement award. In removing any equipment not included in the original
purchase or lease, the consumer shall exercise reasonable care to avoid further
damage to the vehicle but is not required to return the vehicle to original
condition.
(b) At the time of
compliance with an arbitration board decision that awards repurchase, the
manufacturer shall make full payment to the consumers and either the lessor or
lienholder, or both, or provide verification to the consumer of prior payment
to either the lessor or lienholder, or both.
At the time of
compliance with an arbitration board decision that awards replacement, the
manufacturer shall provide the replacement vehicle together with any refund of
incidental costs.
(c) At any time before
compliance a party may request the board to resolve disputes regarding
compliance with the arbitration board decision including but not limited to
time and place for compliance, condition of the vehicle to be returned,
clarification or recalculation of refund amounts under the award, or a
determination if an offered vehicle is reasonably equivalent to the vehicle
being replaced. In resolving compliance disputes the board may not review,
alter, or otherwise change the findings of a decision or extend the time for
compliance beyond the time necessary for the board to resolve the dispute.
(d) Failure of the
consumer to make the vehicle available within sixty calendar days in response
to a manufacturer's unconditional tender of compliance is considered a
rejection of the arbitration decision by the consumer, except as provided in
(c) of this subsection or subsection (2) of this section.
(2) If, at the end of
the forty calendar day period, neither compliance with nor a petition to appeal
the board's decision has occurred, the attorney general may impose a fine of up
to one thousand dollars per day until compliance occurs or a maximum penalty of
one hundred thousand dollars accrues unless the manufacturer can provide clear
and convincing evidence that any delay or failure was beyond its control or was
acceptable to the consumer as evidenced by a written statement signed by the
consumer. If the manufacturer fails to provide the evidence or fails to pay
the fine, the attorney general may initiate proceedings against the
manufacturer for failure to pay any fine that accrues until compliance with the
board's decision occurs or the maximum penalty of one hundred thousand dollars
results. If the attorney general prevails in an enforcement action regarding
any fine imposed under this subsection, the attorney general is entitled to
reasonable costs and attorneys' fees. Fines and recovered costs and fees shall
be returned to the new motor vehicle arbitration account.
NEW SECTION. Sec.
9. A new section is added
to chapter 19.118 RCW to read as follows:
Notwithstanding RCW
46.12.380, the department of licensing shall make available to the registered
owner all title history information regarding the vehicle upon request of the
registered owner and receipt of a statement that he or she is investigating or
pursuing rights under this chapter.
Sec. 10. RCW 46.12.380 and 1990 c
232 s 2 are each amended to read as follows:
(1) Notwithstanding the
provisions of chapter 42.17 RCW, the name or address of an individual vehicle
owner shall not be released by the department, county auditor, or agency or
firm authorized by the department except under the following circumstances:
(a) The requesting
party is a business entity that requests the information for use in the course
of business;
(b) The request is a
written request that is signed by the person requesting disclosure that
contains the full legal name and address of the requesting party, that
specifies the purpose for which the information will be used; and
(c) The requesting
party enters into a disclosure agreement with the department in which the party
promises that the party will use the information only for the purpose stated in
the request for the information; and that the party does not intend to use, or
facilitate the use of, the information for the purpose of making any
unsolicited business contact with a person named in the disclosed information.
The term "unsolicited business contact" means a contact that is
intended to result in, or promote, the sale of any goods or services to a
person named in the disclosed information. The term does not apply to
situations where the requesting party and such person have been involved in a
business transaction prior to the date of the disclosure request and where the
request is made in connection with the transaction.
(2) The disclosing
entity shall retain the request for disclosure for three years.
(3) Whenever the
disclosing entity grants a request for information under this section by an
attorney or private investigator, the disclosing entity shall provide notice to
the vehicle owner, to whom the information applies, that the request has been
granted. The notice also shall contain the name and address of the requesting
party.
(4) Any person who is
furnished vehicle owner information under this section shall be responsible for
assuring that the information furnished is not used for a purpose contrary to
the agreement between the person and the department.
(5) This section shall
not apply to requests for information by governmental entities or requests that
may be granted under any other provision of this title expressly authorizing
the disclosure of the names or addresses of vehicle owners.
(6) This section
shall not apply to title history information under section 9 of this act.
NEW SECTION. Sec.
11. This act is necessary for
the immediate preservation of the public peace, health, or safety, or support
of the state government and its existing public institutions, and shall take
effect immediately.
NEW
SECTION. Sec. 12. If any provision of this
act or its application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other persons or
circumstances is not affected.
