WHEELCHAIR LEMON LAW
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The New Jersey wheelchair lemon law follows the automobile lemon law and provides for a refund if the wheelchair has a material defect unrepaired in three repairs or 20 days out of service.
56:12-75 Definitions relative to motorized wheelchairs
1. As used in this act:
"Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative wheelchair or other assistive device for mobility.
"Consumer" means any of the following:
(1) The purchaser of a motorized wheelchair , if the motorized wheelchair was purchased from a motorized wheelchair dealer or manufacturer for purposes other than resale.
(2) A person to whom the motorized wheelchair is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motorized wheelchair .
(3) A person who may enforce the warranty.
(4) A person who leases a motorized wheelchair from a motorized wheelchair lessor under a written lease.
"Demonstrator" means a motorized wheelchair used primarily for the purpose of demonstration to the public.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Early termination cost" means any expense or obligation that a motorized wheelchair lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer pursuant to section 4 of this act. "Early termination cost" includes a penalty for prepayment under a finance arrangement.
"Early termination savings" means any expense or obligation that a motorized wheelchair lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer pursuant to section 4 of this act. "Early termination savings" includes an interest charge that the motorized wheelchair lessor would have paid to finance the purchase of the motorized wheelchair or, if the motorized wheelchair lessor does not finance the purchase of the motorized wheelchair , the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
"Manufacturer" means a person who manufactures or assembles motorized wheelchairs and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's motorized wheelchairs, but does not include a motorized wheelchair dealer.
"Motorized wheelchair " means any motor-driven wheelchair , including a demonstrator, and all accompanying power accessories utilized to operate the wheelchair , that a consumer purchases or accepts transfer of in this State for the purpose of increasing independent mobility, in the activities of daily living, of an individual who has limited or no ambulation abilities, and includes motorized power scooters designed primarily for indoor use and retrofit power units designed to motorize power wheelchairs.
"Motorized wheelchair dealer" or "dealer" means a person who is in the business of selling motorized wheelchairs.
"Motorized wheelchair lessor" or "lessor" means a person who leases a motorized wheelchair to a consumer, or who holds the lessor's rights, under a written lease.
"Nonconformity" means a condition or defect that substantially impairs the use, value or safety of a motorized wheelchair , and that is covered by an express warranty applicable to the motorized wheelchair or to a component of the motorized wheelchair , but does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the motorized wheelchair by a consumer.
"Reasonable attempt to repair" means, within the term of an express warranty applicable to a new motorized wheelchair , or within one year after first delivery of the motorized wheelchair to a consumer, whichever is sooner, that:
(1) A nonconformity within the warranty has been subject to repair by the manufacturer, lessor or any of the manufacturer's authorized dealers at least three times and the nonconformity continues; or
(2) The motorized wheelchair is out of service for an aggregate of at least 20 days due to a nonconformity, after having been returned to the manufacturer, motorized wheelchair lessor or any of the manufacturer's authorized dealers for repair..
56:12-76.Manufacturer warranty
A manufacturer who sells a motorized wheelchair to a consumer, either directly or through a motorized wheelchair dealer, shall furnish the consumer with an express warranty for the motorized wheelchair The duration of the express warranty shall be not less than one year after first delivery of the motorized wheelchair to the consumer. In the absence of an express warranty from the manufacturer, the manufacturer shall be deemed to have expressly warranted to the consumer of a motorized wheelchair that, for a period of one year from the date of the first delivery to the consumer, the motorized wheelchair will be free from any condition or defect which substantially impairs the value of the wheelchair to the consumer.
56:12-77.Repair of nonconformity
If a new motorized wheelchair does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motorized wheelchair lessor or any of the manufacturer's authorized motorized wheelchair dealers and makes the motorized wheelchair available for repair before one year after first delivery of the motorized wheelchair to a consumer, the nonconformity shall be repaired at no charge to the consumer by the manufacturer.
56:12-78 Manufacturer's responsibility if nonconformity is irreparable
If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall:
a. At the direction of a consumer , other than a consumer who leases a motorized wheelchair from a motorized wheelchair dealer, do either of the following:
(1) Accept return of the motorized wheelchair and replace the motorized wheelchair with a comparable new motorized wheelchair and refund any collateral costs; or
(2) Accept return of the motorized wheelchair and refund to the consumer and to any holder of a perfected security interest in the consumer's motorized wheelchair , as their interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.
b. With respect only to a consumer who has leased a motorized wheelchair from a wheelchair lessor, accept return of the motorized wheelchair , refund to the motorized wheelchair lessor and to any holder of a perfected security interest in the motorized wheelchair , as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use.
c. As used in this section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motorized wheelchair dealer's early termination costs and the value of the motorized wheelchair at the lease expiration date, if the lease sets forth that value, less the motorized wheelchair lessor's early termination savings.
d. Pursuant to this section, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer drove the motorized wheelchair before first reporting the nonconformity to the manufacturer, motorized wheelchair lessor or motorized wheelchair dealer.
56:12-79.Transfer of possession of motorized wheelchair
In order to receive a comparable new motorized wheelchair or a refund pursuant to subsection a. of section 4 of this act, a consumer shall offer to transfer possession of the motorized wheelchair having the nonconformity to the manufacturer of that wheelchair . No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motorized wheelchair or refund. When the manufacturer provides the new motorized wheelchair or refund, the consumer shall return the motorized wheelchair having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer.
56:12-80.Obtaining a refund
In order to receive a refund pursuant to subsection b. of section 4 of this act, a consumer shall:
a.Offer to return the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer . When the manufacturer provides the refund, the consumer shall return to the manufacturer the motorized wheelchair having the nonconformity; and
b. Offer to transfer possession of the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motorized wheelchair lessor. When the manufacturer provides the refund, the motorized wheelchair lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
56:12-81.Lease not enforced after refund
The lease of a motorized wheelchair shall not be enforced against a consumer after the consumer receives a refund for the leased motorized wheelchair pursuant to subsection b. of section 4 of this act.
56:12-82.Disclosure of reasons for return
No motorized wheelchair returned by a consumer or motorized wheelchair lessor in this State pursuant to section 4 of this act, or by a consumer or motorized wheelchair lessor in another state under a similar law of that state, shall be sold or leased again in this State unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
56:12-83. Dispute resolution; application, hearing, procedure
a. After a reasonable attempt to repair, a consumer shall have the option of submitting any dispute arising under section 4 of this act to the director for resolution. The director may establish a filing fee, to be paid by the consumer , fixed at a level not to exceed the cost for the proper administration and enforcement of this act. Upon application by the consumer and payment of any filing fee, the manufacturer shall submit to the hearing procedure established in this section.
b. The director shall review a consumer's application for dispute resolution and accept eligible disputes for referral to the Office of Administrative Law for a summary hearing to be conducted in accordance with special rules adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), by the Office of Administrative Law in consultation with the director. Immediately upon acceptance of a consumer's application for dispute resolution, the director shall contact the parties and arrange for a hearing date with the Office of Administrative Law. The hearing date shall, to the greatest extent possible, be convenient to all parties, but shall be no later than 20 days from the date the consumer's application is accepted, unless a later date is agreed upon by the consumer . The Office of Administrative Law shall render a decision, in writing, to the director within 20 days of the conclusion of the summary hearing. The decision shall provide a brief summary of the findings of fact, appropriate remedies pursuant to this act, and a specific date for completion of all awarded remedies. The director, upon a review of the proposed decision submitted by the administrative law judge, shall adopt, reject, or modify the decision no later than 15 days after receipt of the decision. Unless the director modifies or rejects the decision within the 15-day period, the decision of the administrative law judge shall be deemed adopted as the final decision of the director. If a final decision from the Office of Administrative Law results in a refund to the consumer , recovery by the consumer shall include attorney's fees, fees for expert witnesses and costs of suit, and reimbursement for actual expenses incurred by the consumer for the rental of a motorized wheelchair equivalent to the consumer's motorized wheelchair and limited to the period of time after which the consumer's motorized wheelchair was offered to the manufacturer for return under P.L.1995, c.233 (C.56:12-75 et seq.) except in those cases in which the manufacturer made a comparable motorized wheelchair available to the consumer free of charge during that period. If the manufacturer unreasonably fails to comply with the decision within the specified time period, the manufacturer shall be liable for penalties in the amount of $5,000 for each day the manufacturer unreasonably fails to comply, commencing on the day after the specified date for completion of all awarded remedies.
c. The Office of Administrative Law is authorized to issue subpoenas to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute.
d. A manufacturer or consumer may appeal a final decision to the Appellate Division of the Superior Court. An appeal by a manufacturer shall not be heard unless the petition for the appeal is accompanied by a bond in a principal sum equal to the money award made by the administrative law judge plus $2,500 for anticipated attorney's fees and other costs, 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. The 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. If a final decision resulting in a refund to the consumer is upheld by the court, recovery by the consumer shall include attorney's fees, fees for expert witnesses and costs of suit, and reimbursement for actual expenses incurred by the consumer for the rental of a motorized wheelchair equivalent to the consumer's motorized wheelchair and limited to the period of time after which the consumer's motorized wheelchair was offered to the manufacturer for return under this act, except in those cases in which the manufacturer made a comparable motorized wheelchair available to the consumer free of charge during that period. If the court finds that the manufacturer had no reasonable basis for its appeal or that the appeal was frivolous, the court shall award treble damages to the consumer . Failure of the Office of Administrative Law to render a written decision within 20 days of the conclusion of the summary hearing as required by subsection b. of this section shall not be a basis for appeal.
e. The Attorney General shall monitor the implementation and effectiveness of this act and report to the Legislature after three years of operation, at which time a recommendation shall be made either to continue under the procedures set forth in this act or to make such modifications as may be necessary to effectuate the purposes of this act.
56:12-84.Consumer's rights not limited; waivers, void, unenforceable
a. This act shall not limit rights or remedies available to a consumer under any other law.
b. Any waiver by a consumer of rights under this act shall be void and unenforceable.
56:12-85.Consumer's recovery for damages
In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this act. The court shall award to a consumer who prevails in an action brought pursuant to this section twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief that the court determines is appropriate.
56:12-86.Rules, regulations
The director of the Division of Consumer Affairs shall promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as may be needed to effectuate the purposes of this act.
QUALIFICATIONS AND EXPERIENCE OF THIS LAW OFFICE
Howard A. Gutman has successfully handled over 200 lemon law and automobile breach of warranty cases. He is the author of the leading article on the lemon law published in the New Jersey Law Journal. He also wrote the Year 2000 Legal Handbook, a book dealing with computer warranties, and is considered a leading authority on all types of warranties.
Prior to establishing his practice, Mr. Gutman was employed by one of the leading law firms in New Jersey and a prominent international law firm located in the Wall Street area. He has appeared on Good Day New Jersey been interviewed by NBC Nightly News and Newsday, and his cases have been profiled in the Star Ledger, Bureau of National Affairs Magazine, and New York Times.
HOW DO I CONTACT YOU
Law Offices of Howard A. Gutman,
1259 Route 46, Parsippany, New Jersey 07054
(973) 598-1980, E-mail Howian@aol.com
Fax (973)257-9128
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CONSULTATION
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