| 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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