LEMON LAW STATUTES OVERVIEW
Reviewing and understanding a lemon law statute can be hard, and important distinctions can be missed. That is why it makes sense to consult an attorney in your state. Here is a general overview of the similarities and differences between lemon law statutes.
COMMON FEATURES
1. Most lemon laws define nonconformity" as a defect or condition
which substantially impairs the use, value or safety of an automobile. That usually
means:
a) small items such as radio
malfunctions, cosmetic items and the like are not included in the lemon law.
How these terms are construed will vary from state to state, and within a
state, from judge to judge (or arbitrator to arbitrator)
b) frequently, it will not be sufficient for the consumer to say, "this does not work properly." He may need expert testimony from a mechanic to explain what does not work, why it does not work, and its consequences to the safe use and functioning of the automobile.
c) from what I can observe, most cases are decided based upon potential safety questions, then use issues, and then value problems. It is hard to establish a diminution of value claim. The fact that a car was repeatedly repaired does not in itself establish a diminution in value, i.e. a new car has 4 transmission repairs and a replacement, and now works fine, the consumer will usually be unsuccessful in saying that no one would want to buy a car with an extensive repair history so the car's value has been diminished.
2. Most lemon laws provide for an deduction based upon the consumer's use of the car, generally from the date of the first repair. Here is a common formula. A reasonable allowance for the consumer's use of the automobile, consists of the number of miles driven at the time the consumer first reported the nonconformity to the manufacturer, multiplied by the purchase price and divided by 100,000 miles.
FEATURES WHICH VARY
1. Number of qualifying repairs, some states require three, or four within a specified time period. What that time period means under a lemon law can be unclear or undefined. For example, New Jersey where I practice defines a lemon as a car subject to repair for three times within the first 18,000 miles or two years, and requires that the manufacturer be given a last chance to repair the vehicle by certified mail. When does the lemon law claim have to be brought? There are at least three plausible interpretations of the statute:
a) the
problem must occur three times within 18,000 miles or two years, but the claim can be
brought at any time thereafter.
b) the problem must occur, the last
chance repair must be seen, and the lemon law petition filed within 18,000 miles.
c) the repairs and the
last chance letter must be sent within the 18,000 miles, but the petition can be filed
thereafter.
New Jersey has a lemon law unit and they have opted for interpretation C. However, A
and B are plausible and could be adopted by a court. Many consumers read the statute
and assume interpretation A applies. To avoid these pitfalls, you will want to
consult with a lawyer in your state.
LEMON LAW STATE
STATUTES, A-G
ALASKA LEMON LAW
If during the term of the express warranty or within one year from the date of delivery of the motor vehicle to the original owner, whichever period terminates first, the manufacturer, distributor, dealer, or repairing agent is unable to conform the motor vehicle to an applicable express warranty after a reasonable number of attempts, the manufacturer or distributor shall accept the return of the nonconforming motor vehicle, and, at the owner's option, shall replace the nonconforming vehicle with a new, comparable vehicle or shall refund the full purchase price to the owner less a reasonable allowance for the use of the motor vehicle from the time it was delivered to the original owner. A refund under this section shall be made to a lienholder of record, if any, and the owner, as their interests may appear.
In order to claim a refund or replacement under AS 45.45.305, the owner shall give written notice by certified mail to the manufacturer and its dealer or repairing agent at any time before 60 days have elapsed after the expiration of the express warranty or the one-year period after the date of delivery of the motor vehicle to the original owner, whichever period terminates first, (1) stating that the vehicle has a nonconformity; (2) providing a reasonable description of the nonconformity; (3) stating that the manufacturer, distributor, dealer, or repairing agent has made a reasonable number of attempts to conform the vehicle; and (4) stating that the owner demands a refund or replacement vehicle to be delivered on the 60th day after the mailing of the written notice. Within 30 days after receiving the notice required by this section the manufacturer may make a final attempt to conform the vehicle before a refund or replacement is made under AS 45.45.305.
An owner may not receive a refund or replacement under AS 45.45.300 - 45.45.360 if the manufacturer or distributor shows that the nonconformity complained of
A presumption that a reasonable number of attempts have been made to conform a motor vehicle under an applicable express warranty is established if:
A manufacturer whose vehicles are sold in the state through an authorized dealer shall provide its dealer or repairing agent with any part necessary to make a repair of a nonconformity covered under an express warranty, as soon as possible, without additional charge for freight or handling, if the part is not in the dealer's or agent's inventory when the nonconforming vehicle is brought to the dealer or repairing agent for repair.
A motor vehicle returned under AS 45.45.305 may not be resold by the manufacturer or distributor in the state unless full disclosure of the reason for the return is made to the prospective buyer before the resale is concluded.
The provisions of AS 45.45.300 - 45.45.360 do not limit other rights and remedies that may be available to the owner of a motor vehicle under other provisions of law. This section does not create a new cause of action against a dealer or repairing agent who sells or attempts to repair a motor vehicle found to be nonconforming under AS 45.45.300 - 45.45.360.
A manufacturer or distributor or motor vehicles who authorizes the sale of the manufacturer's or distributor's motor vehicles in the state shall maintain authorized dealership facilities within the state that are able to perform the service and make the repairs required by the manufacturer's express warranty and by AS 45.45.300 - 45.45.360.
A manufacturer or distributor who accepts the return of a nonconforming motor vehicle under AS 45.45.305 shall reimburse the owner for any reasonable cost incurred in shipping the vehicle to and from the nearest authorized facility for warranty service and repair of a nonconformity that causes the return of the vehicle.
If a manufacturer or distributor has established an informal dispute settlement procedure that substantially complies with the requirements of 16 C.F.R. 703, as that section may be amended, or if the manufacturer or distributor, after receipt of notice required by AS 45.45.310, offers in writing to participate in an arbitration or mediation process with the owner and the arbitration or mediation decision is binding on the manufacturer or distributor but not on the owner, and if the informal dispute settlement or arbitration or mediation process is approved by the attorney general, the provisions of AS 45.45.305 concerning refund or replacement or AS 45.45.350 concerning shipping costs do not apply to an owner who has not first resorted to the informal dispute settlement procedure or arbitration or mediation process.
Definitions in AS 45.45.300 - 45.45.360:
Section 8-20A-1
Definitions.
As used in this chapter, the following terms shall have the respective meanings as indicated:
- (1) Consumer.
- The purchaser, other than for purposes of resale, of a new or previously untitled motor vehicle used in substantial part for personal, family, or household purposes, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty.
- (2) Motor vehicle.
- Every vehicle intended primarily for use and operation on the public highways which is self-propelled; provided, however, that the term "motor vehicle" shall not apply to motor homes or to any motor vehicle having a manufacturer's gross vehicle weight rating (GVWR) of 10,000 pounds or more.
- (3) Manufacturer.
- The person, firm, or corporation engaged in the business of manufacturing, importing and/or distributing motor vehicles to be made available to a motor vehicle dealer for retail sale.
- (4) Motor vehicle dealer or Authorized dealer.
- The person, firm, or corporation operating under a dealer agreement from a manufacturer, importer, or distributor and who is engaged regularly in the business of buying, selling or exchanging motor vehicles in this state and who has in this state an established place of business.
- (5) Express warranty.
- A written warranty, so labeled, issued by the manufacturer of a new motor vehicle, including any terms or conditions precedent to the enforcement of obligations under that warranty.
- (6) Nonconforming condition.
- Any condition of a motor vehicle which shall not be in conformity with the terms of any express warranty issued by the manufacturer to a consumer and which: (i) significantly impairs the use, value or safety of the motor vehicle and (ii) occurs or arises solely in the course of the ordinary use of the motor vehicle, and which does not arise or occur as a result of abuse, neglect, modification, or alteration of the motor vehicle not authorized by the manufacturer, nor from any accident or other damage to the motor vehicle which occurs or arises after such motor vehicle was delivered by an authorized dealer to the consumer.
- (7) Notice of a nonconforming condition.
- A written statement which shall be delivered to the manufacturer and which shall describe the subject motor vehicle, the nonconforming condition, and shall describe all previous attempts to correct such nonconforming condition by identifying the person, firm or corporation who or which made such attempt, and the time when such attempt was made.
- (8) Lemon law rights period.
- The period ending one year after the date of the original delivery of a motor vehicle to a consumer or the first 12,000 miles of operation, whichever first occurs.
Section 8-20A-2
Obligations of manufacturer.
(a) If a new motor vehicle does not conform to any applicable express warranty, and the consumer delivers the motor vehicle to the manufacturer, its agent, or its authorized dealer, and gives notice of the nonconforming condition during the lemon law rights period, the manufacturer of the motor vehicle shall be obligated to make such repairs to the motor vehicle as shall be necessary to remedy any nonconforming condition thereof. Such repairs shall be required even after the expiration of the lemon law rights period provided that notice of the nonconforming condition was first given during the lemon law rights period and provided further that the manufacturer's obligation to repair the nonconforming condition shall not extend beyond the period of 24 months following delivery of the vehicle or 24,000 miles, whichever occurs first.
(b) If, after reasonable attempts, the manufacturer, its agent, or its authorized dealer is unable to conform the motor vehicle to any express warranty by repairing or correcting a nonconforming condition of the motor vehicle which first occurred during the lemon law rights period, the manufacturer shall, at the option of the consumer, replace the motor vehicle with a comparable new motor vehicle or shall accept return of the vehicle from the consumer and refund to the consumer the following:
- (1) The full contract price including, but not limited to, charges for undercoating, dealer preparation and transportation charges, and installed options, plus the nonrefundable portions of extended warranties and service contracts;
- (2) All collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges;
- (3) All finance charges incurred by the consumer after he first reported the nonconformity to the manufacturer, its agent, or its authorized dealer; and
- (4) Any incidental damages which shall include the reasonable cost of alternative transportation during the period that the consumer is without the use of the motor vehicle because of the nonconforming condition. There shall be offset against any monetary recovery of the consumer a reasonable allowance for the consumer's use of the vehicle. Refunds shall be made to the consumer, and any lien holders, as their interests may appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first report of the nonconformity to the manufacturer, agent, or authorized dealer, and must be calculated by multiplying the full purchase price of the motor vehicle by a fraction having as its denominator 100,000 and having as its numerator the number of miles that the vehicle travelled before the first report of nonconformity.
(c) It shall be presumed that reasonable attempts to correct a nonconforming condition have been allowed by the consumer if, during the period of 24 months following delivery of the vehicle or 24,000 miles, whichever first occurs, either of the following events shall have occurred:
- (1) The same nonconforming condition has been subject to repair attempts three or more times by the manufacturer, its agents or its authorized dealers, at least one of which occurred during the lemon law rights period, plus a final attempt by the manufacturer, and the same nonconforming condition continues to exist; or
- (2) The motor vehicle is out of service and in the custody of the manufacturer, its agent, or an authorized dealer due to repair attempts (including the final repair attempt), one of which occurred during the lemon law rights period, for a cumulative total of 30 calendar days, unless such repair could not be performed because of conditions beyond the control of the manufacturer, its agents or authorized dealers, such as war, invasion, strike, fire, flood, or other natural disaster.
Section 8-20A-3
Cause of action against manufacturer.
(a) A consumer sustaining damages as a proximate consequence of the failure by a manufacturer to perform its obligations imposed under this chapter may bring a civil action against the manufacturer to enforce the provisions of this chapter. Prior to the commencement of any such proceeding a consumer must give notice of a nonconforming condition by certified United States mail to the manufacturer and demand correction or repair of the nonconforming condition. If at the time such notice of a nonconforming condition is given to the manufacturer, a presumption has arisen that reasonable attempts to correct a nonconforming condition have been allowed, the manufacturer shall be given a final opportunity to cure the nonconforming condition. The manufacturer shall within seven calendar days of receiving the written notice of nonconforming condition notify the consumer of a reasonably accessible repair facility. After delivery of the new vehicle to the authorized repair facility by the consumer, the manufacturer shall attempt to correct the nonconforming condition and conform the vehicle to the express warranty within a period not to exceed 14 calendar days. If a manufacturer has established an informal dispute settlement procedure which is in compliance with federal rules and regulations, a consumer must first exhaust any remedy afforded to the consumer under the informal dispute procedure of the manufacturer before a cause of action may be instituted under the provisions of this chapter.
(b) It shall be an affirmative defense to any claim against the manufacturer under this chapter that: (i) an alleged nonconforming condition does not significantly impair the use, market value, or safety of the motor vehicle; or (ii) a nonconforming condition is a result of abuse, neglect, or any modification or alteration of a motor vehicle by a consumer that is not authorized by the manufacturer.
(c) If it is determined that the manufacturer has breached its obligations imposed under this chapter, then the consumer shall be entitled to recover, in addition to the remedy provided under Section 8-20A-2 above, an additional award for reasonable attorneys fees.
Section 8-20A-4
Resale of returned motor vehicle.
If a motor vehicle has been returned to the manufacturer under the provisions of this chapter or a similar statute of another state, whether as the result of a legal action or as the result of an informal dispute settlement proceeding, it may not be resold in this state unless:
- (1) The manufacturer discloses in writing to the subsequent purchaser the fact that the motor vehicle was returned under the provisions of this chapter and the nature of the nonconformity to the vehicle warranty.
- (2) The manufacturer returns the title of the motor vehicle to the Alabama Department of Revenue advising of the return of the motor vehicle under provisions of this chapter with an application for title in the name of the manufacturer. The Department of Revenue shall brand the title issued to the manufacturer and all subsequent titles to the motor vehicle with the following statement:
- THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY.
Section 8-20A-5
No dealership liability.
Nothing in this chapter imposes any liability upon a motor vehicle dealer or authorized dealer or creates a cause of action by a consumer against a motor vehicle dealer or authorized dealer. A motor vehicle dealer or authorized dealer may not be made a party defendant in any action involving or relating to this chapter. The manufacturer shall not charge back or require reimbursement by a motor vehicle dealer or authorized dealer for any costs, including, but not limited to, any refunds or vehicle replacements, incurred by the manufacturer arising out of this chapter.
Section 8-20A-6
Statute of limitations.
Any action brought under this chapter against the manufacturer shall be commenced within three years following the date of original delivery of the motor vehicle to the consumer.
Aizona Revised Statutes §§ 44-1261 to -1265
44-1261 . Definitions; exemptions
A. In this article, unless the context otherwise requires:
- 1. "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.
- 2. "Motor vehicle" means a self-propelled vehicle designated primarily for the transportation of persons or property over the public highways.
B. If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but does not include those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space.
C. The provisions of this article do not apply to a motor vehicle with a declared gross weight over ten thousand pounds.
44-1262 . New motor vehicle; repair during express warranty or two years or twenty-four thousand miles
A. If a new motor vehicle does not conform to all applicable express warranties:
- 1. A consumer shall report the nonconformity to the manufacturer, its agent or its authorized dealer or issuer of a warranty during the shorter of the following:
- (a) The term of the express warranty.
- (b) The period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier.
- 2. The manufacturer, its agent or its authorized dealer or the issuer of a warranty shall make those repairs that are necessary to conform the motor vehicle to such express warranties, even if the repairs are made after the expiration of the term or two year period or twenty-four thousand mile limit.
B. This section does not limit in any way the remedies available to a consumer under a new motor vehicle warranty that extends beyond the limits prescribed in this section.
44-1263 . Inability to conform motor vehicle to express warranty; replacement of vehicle or refund of monies; affirmative defenses
A. If the manufacturer, its agents or its authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle. The manufacturer shall make refunds to the consumer and lienholder, if any, as their interests appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first written report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.
B. It is an affirmative defense to any claim under this article that either:
- 1. An alleged nonconformity does not substantially impair the use and market value of the motor vehicle.
- 2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.
44-1264 . Reasonable number of attempts to conform motor vehicle to express warranty; presumption
A. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if either:
- 1. The same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the shorter of the express warranty term or the period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, but the nonconformity continues to exist.
- 2. The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the shorter of the express warranty term or the two year period or twenty-four thousand miles, whichever is earlier.
B. The term of an express warranty, the two year period and the thirty day period are extended by any period of time during which repair services are not available to the consumer because of any war, invasion, strike, fire, flood or other natural disaster.
C. The presumption prescribed in this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer of the alleged defect and has had an opportunity to cure the alleged defect.
44-1265 . Nonlimitation of rights; refund or replacement not required if certain procedures not followed; attorney fees
A. If a manufacturer has established or participates in an informal dispute settlement procedure which complies in all respects with 16 code of federal regulations part 703, section 44-1263 relating to refunds or replacement does not apply to any consumer who has not first resorted to such a procedure.
B. A consumer shall begin an action under this article within six months following the earlier of expiration of the express warranty term or two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. If a consumer prevails in an action under this article, the court shall award the consumer reasonable costs and attorney fees.
44-1266 . Notice to dealers and prospective purchasers
A. A manufacturer who has been ordered by judgment or decree to replace or repurchase a motor vehicle pursuant to this article or the repair or replace laws of another state shall, before offering the motor vehicle for resale, attach to the motor vehicle written notification indicating the motor vehicle has been replaced or repurchased. A consumer has a cause of action against any person who removes the written notification from the motor vehicle, except as provided in subsection B of this section.
B. A motor vehicle dealer, broker, wholesale motor vehicle dealer or wholesale motor vehicle auction dealer as defined in section 28-4301 who offers for sale a motor vehicle that has been replaced or repurchased pursuant to this article or the repair or replace laws of another state shall provide the purchaser with the manufacturer's written notification indicating that the motor vehicle has been replaced or repurchased before completion of the sale.
C. It shall constitute an affirmative defense in an action brought pursuant to subsection A of this section against a motor vehicle dealer or an agent of a motor vehicle dealer that the notification described in subsection A of this section was removed by someone other than the dealer or agent without the knowledge of the dealer or agent.
Title 6, Subtitle II, Chapter 50, Sections 5001 - 5009
§ 5001. Definitions.
As used in this chapter:
(1) "Consumer" means the purchaser, other than for purposes of resale, of an automobile; a person to whom an automobile is transferred during the duration of an express warranty applicable to the automobile; or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.
(2) "Dealer" means a person actively engaged in the business of buying, selling or exchanging automobiles at retail and who has an established place of business.
(3) "Manufacturer" means a person engaged in the business of manufacturing, assembling or distributing automobiles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least 10 new automobiles.
(4) "Manufacturer's express warranty" or "warranty" means the written warranty of the manufacturer of a new automobile of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.
(5) "Automobile" means any passenger motor vehicle, except motorcycles, which is leased or bought in Delaware or registered by the Division of Motor Vehicles in the Department of Public Safety except the living facilities of motor homes.
(6) "Nonconformity" means a defect or condition which substantially impairs the use, value or safety of an automobile.
(7) "Lien" means a security interest in an automobile.
(8) "Lienholder" means a person with a security interest in an automobile pursuant to a lien.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 1.)
§ 5002. Duty to repair nonconforming automobiles.
If a new automobile does not conform to the manufacturer's express warranty, and the consumer reports the nonconformity to the manufacturer or its agent or dealer during the term of the warranty or during the period of 1 year following the date of original delivery of an automobile to the consumer, whichever is earlier, the manufacturer shall make, or arrange with its dealer or agent to make, within a reasonable period of time, all repairs necessary to conform the new automobile to the warranty, notwithstanding that the repairs or corrections are made after the expiration of the term of the warranty or the 1-year period.
(64 Del. Laws, c. 173, § 1.)
§ 5003. Remedies upon failure to repair.
(a) If the manufacturer, its agent or its authorized dealer does not conform the automobile to any applicable express warranty by repairing or correcting any nonconformity after a reasonable number of attempts, the manufacturer shall either replace the automobile with a comparable new automobile acceptable to the consumer or repurchase the automobile from the consumer and refund to the consumer the full purchase, including all credits and allowances for any trade-in vehicle; provided, however, that the consumer shall have the unqualified right to decline a replacement automobile and to demand instead a repurchase.
(b) In instances in which an automobile is replaced by a manufacturer under this section, said manufacturer shall accept return of the automobile and reimburse the consumer for any incidental costs, including dealer preparation fees, fees for transfer of registration, sales taxes or other charges or fees incurred by the consumer as a result of such replacement. In instances in which an automobile which was financed by the manufacturer or its subsidiary or agent is replaced under this section, said manufacturer, subsidiary or agent shall not require the consumer to enter into any refinancing agreement for a replacement automobile which would create any financial obligations upon such consumer beyond those created by the original financing agreement.
(c) In instances in which a refund is tendered under this section, the manufacturer shall accept return of the automobile from the consumer and shall reimburse the consumer for related purchase costs, including sales taxes, registration fees and dealer preparation fees, less:
(1) A reasonable allowance for the consumer's use of the automobile, not to exceed the full purchase price of the automobile multiplied by a fraction which consists of the number of miles driven before the consumer first reported the nonconformity to the manufacturer, its agent or dealer divided by 100,000 miles; and
(2) A reasonable allowance for damage not attributable to normal wear and tear, but not to include damage resulting from a nonconformity.
(d) Refunds shall be made to the consumer, and lienholder, if any, as their interests may appear.
(e) No authorized dealer shall be held liable by the manufacturer for any refunds or automobile replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturer's instructions.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 3.)
§ 5004. Presumptions.
(a) It shall be presumed that a reasonable number of attempts have been undertaken to conform a new automobile to the manufacturer's express warranty if, within the warranty term or during the period of 1 year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date:
(1) Substantially the same nonconformity has been subject to repair or correction 4 or more times by the manufacturer, its agents or its dealers and the nonconformity continues to exist; or
(2) The automobile is out of service by reason of repair or correction of a nonconformity by the manufacturer, its agents or its dealers for a cumulative total of more than 30 calendar days since the original delivery of the motor vehicle to the consumer. This 30-day limit shall commence with the first day on which the consumer presents the automobile to the manufacturer, its agent or dealer for service of the nonconformity and a written document describing the nonconformity is prepared by the manufacturer, its agent or dealer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer, its agents or its dealers, including war, invasion, strike, fire, flood or other natural disaster.
(b) The presumption provided in this section shall not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to repair or correct the nonconformity; provided, however, that if the manufacturer does not directly attempt or arrange with its dealer or agent to repair or correct the nonconformity, the manufacturer may not defend a claim by a consumer under this chapter on the ground that the agent or dealer failed to properly repair or correct the nonconformity or that the repairs or corrections made by the agent or dealer caused or contributed to the nonconformity.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 4.)
§ 5005. Costs and attorney's fees in breach of warranty actions.
In any court action brought under this chapter by a consumer against the manufacturer of an automobile, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express warranty made in connection with the sale of such automobile, the court, in its discretion, may award to the plaintiff his costs and reasonable attorney's fees or, if the court determines that the action is brought in bad faith or is frivolous in nature, may award reasonable attorney's fees to the defendant.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 5.)
§ 5006. Affirmative defense to claim.
It shall be an affirmative defense to a claim under this chapter that the alleged nonconformity does not substantially impair the use, value or safety of the new automobile or that the nonconformity is the result of abuse or neglect or of unauthorized modifications or alterations of the new automobile by anyone other than the manufacturer, its agent or dealer.
(64 Del. Laws, c. 173, § 1.)
§ 5007. Informal dispute settlement procedure.
(a) If a manufacturer has established an informal settlement procedure that has a certificate of approval by the Division of Consumer Protection, the remedies provided by this chapter shall not be available to any consumer who has not first resorted to such procedure. In the event a manufacturer's informal dispute settlement procedure does not have a certificate of approval from the Division of Consumer Protection, a consumer may immediately and directly seek the remedies provided by this chapter.
(b) The Division of Consumer Protection shall annually evaluate the operation of informal dispute settlement procedures established by manufacturers and shall issue an annual certificate of approval to those manufacturers whose procedures comply with Title 16, Code of Federal Regulations, Part 703 and with subsections (c), (d) and (e) of this section. The Division of Consumer Protection shall suspend the certification of, or decertify, any informal dispute settlement which no longer complies with said provisions.
(c) Any manufacturer who has established an informal settlement procedure shall file with the Division of Consumer Protection a copy of each decision of the informal dispute settlement procedure within 30 days after the decision is rendered.
(d) In order to obtain the certification of the Division of Consumer Protection, a manufacturer's informal dispute settlement procedure shall not convene any informal dispute settlement hearing or meeting outside the State and shall refrain from any practices which:
(1) Delay a decision in any dispute beyond 65 days after the date on which the consumer initially resorts to the informal dispute settlement procedure by written notification that a dispute exists; or
(2) Delay performance of remedies awarded in a settlement beyond 30 days after receipt of notice of the consumer's acceptance of the decision; provided, however, that such time limits shall not include periods of time when the consumer or the consumer's car is unavailable for the remedies specified in the settlement; or
(3) Require the consumer to make the automobile available more than once for inspection by a manufacturer's representative or more than once for repair of the same nonconformity; or
(4) Fail to consider in decisions any remedies provided by this chapter, such remedies to include:
a. Repair, replacement and refund;
b. Reimbursement for related purchase costs; or
(5) Require the consumer to take any action or assume any obligation not specifically authorized under the provisions of Title 16, Code of Federal Regulations, Part 703.
(e) A manufacturer desiring annual certification of an informal dispute settlement procedure shall make application to the Division of Consumer Protection on forms developed by, and shall provide such information as required by, the Division of Consumer Protection.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 6; 69 Del. Laws, c. 291, § 98(c).)
§ 5008. Remedies cumulative.
Nothing in this chapter shall in any way limit the rights or remedies available to a consumer under Subtitle I of this title.
(64 Del. Laws, c. 173, § 1.)
§ 5009. Enforcement.
In addition to any remedies the consumer may have at law or in equity, a violation of this chapter shall be an unlawful practice as defined in § 2513 of this title. The Division of Consumer Protection shall promulgate rules and regulations in order to implement the purposes of this chapter.
(64 Del. Laws, c. 173, § 1; 66 Del. Laws, c. 36, § 7; 69 Del. Laws, c. 291, § 98(c).)
Georgia Lemon Law
GA Code 10-1-780
10-1-780
This article shall be known and may be cited as the "Motor Vehicle Warranty Rights Act."
10-1-781
The General Assembly recognizes that a new motor vehicle is a major consumer purchase and that a defective motor vehicle is likely to create hardship for, or may cause injury to, the consumer.It is the intent of the General Assembly to ensure that the consumer is made aware of his or her rights under this article.In enacting these comprehensive measures, it is the intent of the General Assembly to create the proper blend of private and public remedies necessary to enforce this article.
10-1-782
Unless the context clearly requires otherwise, the definitions in this Code section apply throughout this article. As used in this article, the term:
(1) "Administrator" means the administrator appointed pursuant to Code Section 10-1-395.
(2) "Collateral charges" means those additional charges to a consumer or lessor wholly incurred as a result of the acquisition purchase of the motor vehicle. For the purposes of this article, collateral charges include but are not limited to manufacturer installed or dealer installed items or service charges, earned finance charges incurred by a consumer in the case of a purchase, and by the lessor in the case of a lease, sales tax, and title charges.
(3) "Consumer" means any person who has entered into an agreement or contract for the transfer, lease, or purchase of a new motor vehicle primarily for personal, family, or household purposes, regardless of how the documents characterize the transaction. The term shall also mean and include any sole proprietorship, partnership, or corporation which is a commercial owner or lessee of no more than three new motor vehicles and which has ten or fewer employees and a net income after taxes of $100,000.00 per annum or less for federal income tax purposes. For the limited purpose of enforcing the rights granted under this article, the term "consumer" will also include any person or entity regularly engaged in the business of leasing new motor vehicles to consumers.
(4) "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 article.
(5) "Distributor" means a person or entity holding a distribution agreement with a manufacturer for the distribution of new motor vehicles to new motor vehicle dealers or who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such distribution, who is not responsible to the manufacturer for honoring the manufacturer's express warranty, and who does not issue an express warranty to consumers.
(6) "Express warranty" means a warranty which is given by the manufacturer in writing.
(7) "Incidental costs" means any reasonable expenses incurred by the consumer in connection with the repair of the new motor vehicle, including but not limited to payments to dealers for attempted repairs of nonconformities, towing charges, and the costs of obtaining alternative transportation.
(8) "Informal dispute resolution settlement mechanism" means any procedure established, employed, utilized, or run by a manufacturer for the purpose of resolving disputes with consumers regarding any warranty.
(9) "Lemon law rights period" means the period ending one year after the date of the original delivery of a new motor vehicle to a consumer or the first 12,000 miles of operation after delivery of a new motor vehicle to a consumer, whichever occurs first.
(10) "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.
(11) "New motor vehicle" means any self-propelled vehicle, primarily designed for the transportation of persons or property over the public highways, that was leased or purchased in this state or registered by the original consumer in this state and on which the original motor vehicle title was issued to the lessor or purchaser without having been previously issued to any person other than the selling dealer. If the motor vehicle is a motor home, this article 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 motorcycles or trucks with 10,000 pounds or more gross vehicle weight rating. The term "new motor vehicle" shall not include any vehicle on which the title and other transfer documents show a used, rather than new, vehicle. The term "new motor vehicle" includes a demonstrator or lease-purchase, as long as a manufacturer's warranty was issued as a condition of sale, unless specifically excluded under this definition.
(12) "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, leasing, distributing, or dealing in new motor vehicles, or who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such sales. For the purposes of subsection (d) of Code Section 10-1-784, concerning private civil actions for violations of this article, the term "new motor vehicle dealer" shall include any person or entity regularly engaged in the business of leasing new motor vehicles to consumers.
(13) "Nonconformity" means a defect, serious safety defect, or condition that substantially impairs the use, value, or safety of a new motor vehicle to the consumer, 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.
(14) "Panel" means a new motor vehicle arbitration panel as designated in Code Sections 10-1-786 and 10-1-794.
(15) "Purchase price" means in the case of a sale of a new motor vehicle to a consumer the cash price of the new motor vehicle appearing in the sales agreement, contract, or leasing agreement, including any reasonable allowance for a trade-in vehicle. In determining whether the trade-in allowance was reasonable, the panel may take into account whether the purchase price of the vehicle was at fair market value or not and make appropriate adjustments to ensure that the consumer is made whole but not unjustly enriched. In the case of a consumer lease of a new motor vehicle, "purchase price" means the cash price paid by the lessor to a dealer or distributor to purchase the new motor vehicle.
(16) "Reasonable offset for use" means an amount directly attributable to use by the consumer before the consumer requests repurchase or replacement by the manufacturer pursuant to Code Section 10-1-784. The reasonable offset for use shall be computed by the number of miles that the vehicle traveled before the consumer's request of repurchase or replacement multiplied by the purchase price and divided by 100,000.
(17) "Reasonable number of attempts" under the lemon law rights period means the definition as provided in Code Section 10-1-784.
(18) "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 purchase or lease.
(19) "Serious safety defect" means a life-threatening malfunction or nonconformity.
(20) "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 more than a meaningful amount below the average resale value for comparable motor vehicles.
(21) "Warranty" means any express written warranty of the manufacturer but shall not include any extended coverage purchased by the consumer as a separate item.
10-1-783
(a) 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 at which consumers may, at no cost, contact the manufacturer's customer service personnel who are authorized to direct activities regarding repair of the consumer's vehicle.
(b) 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 article. The statement shall be written by the administrator and shall contain information regarding the procedures and remedies under this article.
(c) For the purposes of this article, if a new motor vehicle has a nonconformity and the consumer reports the nonconformity during the lemon law rights period to the manufacturer, its agent, or the new motor vehicle dealer who sold the new motor vehicle, the vehicle shall be repaired at the manufacturer's expense to correct the nonconformity regardless of whether such repairs are made after the expiration of the lemon law rights period. If in any subsequent proceeding under this article it is determined that the consumer's repair did not qualify under this article, and the manufacturer was not otherwise obligated to repair the vehicle, the consumer shall be liable to the manufacturer for the costs of the repair.
(d) 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.
(e) Each time the consumer's vehicle is returned from being diagnosed or repaired under the lemon law rights period or under a warranty, the new motor vehicle dealer shall provide to the consumer 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.
(f) No manufacturer, its agent, or new motor vehicle dealer may refuse to diagnose or repair any nonconformity for the purpose of avoiding liability under this article.
(g) The lemon law rights period and 30 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.
10-1-784
(a)(1) If the manufacturer, its agent, or the new motor vehicle dealer is unable to repair or correct any nonconformity in a new motor vehicle after a reasonable number of attempts, the consumer shall notify the manufacturer by certified mail, return receipt requested, at the address provided by the manufacturer. The manufacturer shall, within seven days after receipt of such notification, notify the consumer of a reasonably accessible repair facility and after delivery of the vehicle to the designated repair facility by the consumer, the manufacturer shall, within 14 days, conform the motor vehicle to the warranty. If the manufacturer is unable to repair or correct any nonconformity of the new motor vehicle, the manufacturer shall, within 30 days of the consumer's written request, by certified mail, return receipt requested, at the option of the consumer, or the lessor in the event of a leased motor vehicle, replace or repurchase the new motor vehicle. If the manufacturer fails to notify the consumer of a reasonably accessible repair facility or perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply.
(2) If a lessor elects replacement, the contractual obligation, except for those terms of the agreement which identify the vehicle, between the lessor and the consumer shall not be altered. If a lessor elects repurchase, it shall return to the consumer a sum equal to the allowance for any trade-in, and down payment or initial balloon payment, made by the consumer, and all future obligations of the consumer to the lessor shall cease. In the event a lessor elects to require the manufacturer to repurchase a leased vehicle, the consumer will remain liable for all lease obligations arising prior to the date that the lessor elects such replacement, but will have no future obligations under the lease, and will be liable for no penalty for early termination. A lessor must elect either a repurchase or replacement within 30 days of receiving written notice from the consumer that such an election is desired; if the lessor fails to make such an election within the 30 days, the consumer may make the election to repurchase or replace and the lessor shall be bound by the consumer's election.
(3) The replacement motor vehicle shall be identical or reasonably equivalent to the motor vehicle to be replaced. Such replacement shall include payment of all collateral charges which the consumer or lessor will incur a second time which would not have been incurred again except for the replacement, and any and all incidental costs incurred by the consumer or lessor. In the case of a replacement motor vehicle, the reasonable offset for use shall be paid by the consumer to the manufacturer. Compensation for a reasonable offset for use shall be paid by the consumer to the manufacturer in the event that a replacement motor vehicle is elected. In the case of a lease where the consumer either has no option to purchase the motor vehicle at the end of the lease term, or the consumer has an option to purchase the motor vehicle at the end of the lease term but does not exercise the option, the lessor shall refund to the consumer the lesser of (A) the offset for use paid by the consumer to the manufacturer at the time of delivery of the replacement vehicle, or (B) the gain realized by the lessor by reason of the difference, if any, between the anticipated residual value of the original motor vehicle as determined at the inception of the lease and the realized value of the replacement motor vehicle at the end of the lease. If the lessor does not realize any gain from the disposition of the replacement vehicle, there will be no refund due to the consumer from the lessor. The foregoing rules apply only to leases where the consumer performs all of the consumer's obligations under the lease agreement and the lease terminates upon the scheduled expiration of the lease term as set forth in the lease agreement or any mutually agreed upon extension of the lease term. The administrator may provide by rule under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for determining the manner of calculating the amount of any further charges or refunds that may apply in the case of leases terminated prematurely either by the voluntary election of the parties, or involuntarily by the lessor in the event of the lessee's default, the loss or destruction of the vehicle, or for any other reason.
(4) When repurchasing the new motor vehicle, the manufacturer shall refund to the consumer all collateral charges and incidental costs. In the event of a repurchase, purchase price refunds shall be made to the consumer and lienholder of record, if any, as his or her interests may appear, less a reasonable offset for use. In the event of a lease, purchase price refunds shall be made to the lessor, less a reasonable offset for use. If it is determined that the lessee is entitled to a refund, the consumer's lease agreement with the lessor shall be terminated upon payment of the refund and no penalty for early termination shall be assessed.
(b) A reasonable number of attempts shall be presumed as a matter of law to have been undertaken by the manufacturer, its agent, or the new motor vehicle dealer to repair or correct any nonconformity of a new motor vehicle, if: (1) a serious safety defect in the braking or steering system has been subject to repair at least once during the lemon law rights period and has not been corrected; (2) during any period of 24 months or less, or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, any other serious safety defect has been subject to repair two or more times, at least one of which is during the lemon law rights period, and the nonconformity continues to exist; (3) during any period of 24 months or less or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, the same nonconformity has been subject to repair, three or more times, at least one of which is during the lemon law rights period, and the nonconformity continues to exist; or (4) during any period of 24 months or less or during any period in which the vehicle has been driven 24,000 miles or less, whichever occurs first, the vehicle is out of service by reason of repair of one or more nonconformities for a cumulative total of 30 calendar days, at least 15 of them during the lemon law rights period.If less than 15 days remain under the lemon law rights period when the new motor vehicle is first brought in for diagnosis or repair, the lemon law rights period as regards the problem to be diagnosed or repaired shall be extended for a period of 90 days.
(c) For purposes of this article, the lemon law rights period regarding nonconformities on all new motor vehicles sold in this state shall be for 12 months following the purchase of the vehicle or for 12,000 miles following the purchase of the vehicle, whichever occurs first.
(d) This article shall not create and shall not give rise to any cause of action against and shall not impose any liability upon any new motor vehicle dealer or distributor except as provided in this Code section. No new motor vehicle dealer or distributor shall be held liable by the manufacturer or by the consumer for any collateral charges, damages, costs, purchase price refunds, or vehicle replacements, and manufacturers and consumers shall not have a cause of action against a new motor vehicle dealer or distributor under this article.A violation of any duty or responsibility imposed upon a new motor vehicle dealer or distributor under this article shall constitute a per se violation of Code Section 10-1-393; provided, however, that enforcement against such violations shall be by public enforcement by the administrator and shall not be enforceable through private enforcement under the provisions of Code Section 10-1-399, except that a knowing violation of Code Section 10-1-785 shall be enforceable through private enforcement under the provisions of Code Section 10-1-399.The provisions of Code Sections 11-2-602 through 11-2-609 shall not apply to the sale of a new motor vehicle if the consumer seeks to use the remedies provided for in this article.A consumer shall be deemed to have used the remedies provided for in this article when he or she completes, signs, and returns forms prescribed by the administrator for the submission of disputes to an informal dispute resolution settlement mechanism or to a panel, whichever occurs first. Such forms shall contain a conspicuous statement clearly advising the consumer of the rights the consumer is waiving by participating in the procedures under this article. A consumer may not use the remedies provided for in this article if the consumer has already sought to use the remedies provided for in Code Sections 11-2-602 through 11-2-609, unless the nonconformity did not exist or was not known at the time of using the remedies provided for in such Code sections. Manufacturers and consumers may not make new motor vehicle dealers or distributors parties to arbitration panel proceedings or any other proceedings under this article. The provisions of this article shall not impair any obligation under any manufacturer-dealer franchise agreement or manufacturer-distributor agreement; provided, however, that any provision of any manufacturer-dealer franchise agreement or manufacturer-distributor agreement which attempts to shift any duty, obligation, responsibility, or liability imposed upon a manufacturer by this article to a new motor vehicle dealer or distributor, either directly or indirectly, shall be void and unenforceable, except for any liability imposed upon a manufacturer by this article which is directly caused by the gross negligence of the dealer in attempting to repair the motor vehicle after such gross negligence has been determined by the hearing officer, as provided in Article 22 of this chapter, the "Georgia Motor Vehicle Franchise Practices Act."
10-1-785
(a) No manufacturer or other transferor shall knowingly resell, either at wholesale or retail, lease, transfer a title, or otherwise transfer, except to sell for scrap, any motor vehicle which has been determined to have a serious safety defect by reason of a determination, adjudication, or settlement decision pursuant to this article or similar statute of any other state, unless the serious safety defect has been corrected; the manufacturer warrants in writing upon the resale, transfer, or lease that the defect has been corrected; and the transferor provides the manufacturer's written warranty under this Code section to the consumer.
(b) After replacement or repurchase pursuant to this article of a motor vehicle with a nonconformity, other than a serious safety defect, which has not been corrected, the manufacturer shall notify the administrator, by certified mail, upon receipt of the manufacturer's motor vehicle.If such nonconformity is corrected, the manufacturer shall notify the administrator in the same manner of such correction.If the two events described in this subsection occur within 30 days of one another, both notices may be combined into the same notice.
(c) Upon the resale, either at wholesale or retail, lease, transfer of title, or other transfer of a motor vehicle with a nonconformity, other than a serious safety defect, which has not been corrected and which was previously returned after a final determination, adjudication, or settlement under this article or under a similar statute of any other state, the manufacturer shall execute and deliver to the transferee before transfer to a consumer an instrument in writing setting forth information identifying the nonconformity in a manner to be specified by the administrator; the transferor shall deliver the instrument to the consumer before transfer.
(d) Upon the resale, either at wholesale or retail, lease, transfer of title, or other transfer of a motor vehicle found to have a nonconformity under this article which has been corrected, the manufacturer shall warrant in writing on forms prescribed by the administrator upon the transfer that the nonconformity has been corrected, and the manufacturer, its agent, the new motor vehicle dealer, or other transferor shall execute and deliver to the transferee before transfer an instrument in writing setting forth information identifying the nonconformity and indicating in a manner to be specified by the administrator that it has been corrected and providing an express manufacturer's warranty on the vehicle regarding the nonconformity for 12 months or 12,000 miles, whichever occurs first.
(e) For purposes of this Code section, the term "settlement" includes an agreement entered into between the manufacturer and the consumer that occurs after the dispute has been submitted to an informal dispute resolution settlement mechanism or has been deemed eligible by the administrator for arbitration before a panel.
10-1-786
(a) As provided in Code Section 10-1-794, the administrator may establish a new motor vehicle arbitration panel or panels to settle disputes between consumers and manufacturers as provided in this article. The panels 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 article.
(b) The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for the uniform conduct of arbitrations by panels and by informal dispute resolution settlement mechanisms under this article, which rules may include, but not be limited to, the following:
(1) Procedures regarding presentation of oral and written testimony, witnesses and evidence relevant to the dispute, cross-examination of witnesses, and representation by counsel. The administrator shall provide by rule for oral hearings, when appropriate, in panel or informal dispute resolution settlement mechanism proceedings;
(2) Procedures for production of records and documents requested by a party which the panel finds are reasonably related to the dispute;
(3) Procedures for issuance of subpoenas on behalf of the panel by the administrator, which shall be enforced by the superior courts as in Code Section 10-1-398;
(4) Procedures regarding written affidavits from employees and agents of a dealer, a manufacturer, any party, or from other potential witnesses and the consideration of such affidavits by a panel; and
(5) Records of panel proceedings and hearings shall be open to the public.
(c) A consumer shall exhaust any certified informal dispute resolution settlement procedure under Code Section 10-1-793 and the new motor vehicle arbitration panel remedy before filing any superior court action pursuant to Code Section 10-1-788.
(d) The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," to implement this article. Such rules may include uniform standards by which the panel and any informal dispute resolution settlement mechanism under Code Section 10-1-793 shall make determinations under this article, including but not limited to rules which may provide for:
(1) Determining that a nonconformity exists;
(2) Determining that a reasonable number of attempts to repair a nonconformity have been undertaken; or
(3) Determining that a manufacturer has failed to comply with Code Section 10-1-784.
10-1-787
(a) A consumer shall request arbitration under this article by submitting a request in writing to the administrator.Except as otherwise provided in this article, disputes under the lemon law rights period shall be eligible for arbitration.The administrator shall make a reasonable determination of the eligibility of the request for arbitration and may provide necessary information to the consumer regarding the consumer's rights and remedies under this article.The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," regarding the eligibility of requests for arbitration. The administrator shall assign a dispute he deems eligible to a panel.
(b) Manufacturers shall submit to arbitration under this article if the consumer's dispute is deemed eligible for arbitration by the administrator and by the panel.
(c) The new motor vehicle arbitration panel 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 panel to be ineligible for arbitration due to insufficient evidence may be reconsidered by the panel upon the submission of other information or documents regarding the dispute that would allegedly qualify for relief under this article.Following a second review, the panel may reject the dispute for arbitration if evidence is still clearly insufficient to qualify the dispute for relief under this article.The administrator may adopt rules under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," governing rejection of disputes by a panel.A decision to reject any dispute for arbitration shall be sent by certified mail, return receipt requested, to the consumer and the manufacturer.
(d) An arbitration panel shall award the remedies under Code Section 10-1-784 if it finds a nonconformity and that a reasonable number of attempts have been undertaken to correct the nonconformity.The panel may in its discretion award attorney's fees and technical or expert witness costs to a consumer.
(e) It is an affirmative defense to any claim under this article that: (1) the alleged nonconformity does not substantially impair the use, value, or safety of the new motor vehicle to the consumer; or (2) the alleged nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of the new motor vehicle.
(f) The panel's decision shall be sent by certified mail, return receipt requested, to the consumer.The consumer must reject the decision in writing by certified mail, return receipt requested, addressed to the panel within 30 days of receipt of the panel's decision, or he or she shall be deemed to have accepted the panel's decision.The panel shall immediately notify the manufacturer by certified mail, return receipt requested, whether the consumer has accepted, rejected, or has been deemed to have accepted.
(g) Upon receipt of the panel's notice, the manufacturer shall have 40 calendar days to comply with the arbitration panel decision or to file a petition of appeal in superior court.At the time the petition of appeal is filed, the manufacturer shall send, by certified mail, a conformed copy of such petition to the administrator.
(h) If, at the end of the 40 calendar day period, neither compliance with nor a petition to appeal the panel's decision has occurred, the administrator may impose a fine of up to $1,000.00 per day until compliance occurs or until a maximum penalty of double the value of the vehicle or $100,000.00, whichever is less, accrues.If the manufacturer can provide clear and convincing evidence either that any delay or failure was beyond its control, or that any delay was acceptable to the consumer, the fine shall not be imposed.If the manufacturer fails to provide such evidence or fails to pay the fine, the administrator may initiate proceedings against the manufacturer for failure to pay any accrued fine and may initiate proceedings on behalf of the state to require specific performance of an arbitration decision under this article.The administrator shall deposit any fines in the state treasury.
10-1-788
(a) After the manufacturer has received notice of the consumer's acceptance or rejection, the consumer or the manufacturer shall have 40 days to request a trial de novo of the arbitration decision in superior court.
(b) If the manufacturer appeals, the court may require the manufacturer to post security for the consumer's financial loss due to the passage of time for review.
(c) If the manufacturer appeals and the consumer prevails, recovery may include the monetary value of the award, collateral charges, continuing incidental costs, if any, and attorney's fees and costs.
10-1-789
(a) Effective July 1, 1990, a fee of $3.00 shall be collected by the new motor vehicle dealer from the consumer at completion of a sale or a lease of each new motor vehicle.The fee shall be forwarded quarterly to the Office of Planning and Budget for deposit in the new motor vehicle arbitration account created in the state treasury. The first quarterly payments are due and payable on October 1, 1990, and shall be mailed by the dealer not later than October 10; thereafter, all payments are due and payable the first of the month in each quarter and shall be mailed by the dealer not later than the tenth day of such month.Moneys in the account shall be used for the purposes of this article, subject to appropriation. Funds in the new motor vehicle arbitration account shall be transferred to the general treasury at the end of each fiscal year. One dollar of each fee collected shall be retained by the dealer to cover administrative costs.
(b) At the end of each fiscal year, the administrator shall prepare a report listing the annual revenue generated and the expenses incurred in implementing and operating the arbitration program under this chapter.The Office of Planning and Budget shall provide the administrator with the figures regarding revenue generated.
(c) It is the intent of the General Assembly that any consumer who, on or after July 1, 1990, but prior to January 1, 1991, pays or should have paid the fee designated in this Code section shall be entitled to utilize the remedies provided in Code Sections 10-1-786, 10-1-787, and 10-1-788 in addition to any other remedies which exist in law or in equity regarding defective automobiles, notwithstanding the effective dates of this article or the effective dates of any provisions of this article.
10-1-790
A violation of this article, or any failure of any person, including a manufacturer or its agents, to honor any express warranty, automotive or otherwise, issued by that person, regardless of whether or not such warranty was purchased as a separate item by the consumer and regardless of whether or not any dispute under the warranty is deemed eligible for arbitration under this article, shall constitute an unfair and deceptive act or practice and a consumer transaction under Part 2 of Article 15 of this chapter.In determining whether there is an unfair and deceptive act or practice under this Code section, the principles in this article regarding a reasonable number of attempts may serve as guidelines. All public and private remedies provided under Part 2 of Article 15 of this chapter shall be available to enforce this article, subject to the affirmative defenses provided in Code Section 10-1-787, and except as provided in Code Section 10-1-784.
10-1-791
Any agreement entered into by a consumer for the purchase of a new motor vehicle that waives, limits, or disclaims the rights set forth in this article shall be void as contrary to public policy. Said rights shall extend to a subsequent transferee of a new motor vehicle.
10-1-792
Nothing in this article shall limit anyone from pursuing other rights or remedies under any other law, except as otherwise provided in this article.
10-1-793
(a) If a manufacturer has established an informal dispute resolution settlement mechanism in this state and is operating in accordance with rules promulgated by the administrator under this article, and the administrator has certified that the informal dispute resolution settlement procedure complies with and is operating in accordance with such rules, a consumer must submit a dispute under this article to the informal dispute resolution settlement procedure before submitting it to the new motor vehicle arbitration panel.The administrator may adopt rules consistent with this article under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," regarding the informal dispute resolution settlement mechanisms, including but not limited to the composition, function, training, procedures, and conduct of informal dispute resolution settlement mechanisms and including eligibility requirements and procedures for appeals to a panel.Such rules must be complied with prior to certification.
(b) Informal dispute resolution settlement mechanisms shall take into account the principles contained in this article and in any rules promulgated thereunder and shall take into account all legal and equitable factors germane to a fair and just decision.A decision shall include any remedies appropriate under the circumstances, including repair, replacement, refund, reimbursement for collateral and incidental charges, and compensation for loss of value.For purposes of this Code section, the phrase: "Take into account the principles contained in this article" means to be aware of the provisions of this article, to understand how they might apply to the circumstances of the particular dispute, and to apply them if it is appropriate and fair to both parties to do so.
(c) At any time the administrator has reason to believe that a certified informal dispute resolution settlement mechanism is not acting in conformity with this article or with rules promulgated thereunder, he may initiate proceedings under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," to revoke the certification of the informal dispute resolution settlement mechanism.An informal dispute resolution settlement mechanism shall keep such records as prescribed by the administrator in rules under this article and shall submit without notice to inspection and copying of these records by the administrator's employees.Expenses of any copying shall be borne by the informal dispute resolution settlement mechanism.
10-1-794
The new motor vehicle arbitration panel or panels shall begin operating on January 2, 1991.The administrator in his discretion may establish and operate the panel or panels under any of the following procedures, provided that disputes filed during the same time period shall not be handled under different procedures: (1) contracting with private or public entities to conduct arbitrations under the procedures and standards in this article, (2) appointing private citizens to serve on a panel or panels, or (3) hiring temporary or permanent employees to serve on the panel or panels. Each new motor vehicle arbitration panel shall consist of three members, none of whom may be directly or indirectly involved in the manufacture, distribution, sale, or service of any motor vehicle or employed by or related to the consumer.All panel members shall have a degree from an American Bar Association Accredited School of Law or shall have at least two years' experience in professional arbitration.Any private citizens appointed by the administrator to serve as panel members shall be reimbursed for expenses as are members of the General Assembly and shall be compensated at an hourly rate as determined by the administrator. Temporary or permanent employees hired to serve on the panels shall be in the unclassified service and may serve on a full or part-time basis at a salary determined by the administrator.All administrative staff hired by the administrator to aid in the administration of this article shall be in the unclassified service and compensated at a salary determined by the administrator.
Lemon laws may change and interpretation of these laws may likely require the services of an attorney in the state. We strongly recommend that you consult an attorney in the state where the vehicle was purchased.
Compiled by the Law Offices of Howard A. Gutman
230 Route 206, Building 3
Mount Olive, New Jersey 0783607054
(973)257-9400
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