Senate Bill 0938c2

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    Florida Senate - 2000                     CS for CS for SB 938

    By the Committees on Judiciary, Transportation and Senator
    Bronson




    308-2082A-00

  1                      A bill to be entitled

  2         An act relating to motor vehicle damage

  3         disclosure; creating pt. VI of ch. 501, F.S.;

  4         consisting of s. 501.98, F.S.; providing

  5         definitions; prescribing the duty of motor

  6         vehicle manufacturers and dealers to disclose

  7         and repair certain damage to motor vehicles;

  8         apportioning liability for certain damage and

  9         repairs; prescribing duties of dealers with

10         respect to cooperation with manufacturers;

11         providing remedies for purchasers of damaged

12         motor vehicles, including injunctive relief and

13         attorney's fees; amending s. 320.27, F.S.;

14         revising provisions relating to denial,

15         suspension, or revocation of a motor vehicle

16         dealer's license; providing penalties;

17         providing an effective date.

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19  Be It Enacted by the Legislature of the State of Florida:

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21         Section 1.  Part VI of chapter 501, Florida Statutes,

22  consisting of section 501.98, is created to read:

23                             PART VI

24               NEW MOTOR VEHICLE DAMAGE DISCLOSURE

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26         501.98  New motor vehicle damage; disclosure;

27  repairs.--

28         (1)  DEFINITIONS.--As used in this section, the term:

29         (a)  "Dealer" means a motor vehicle dealer as defined

30  in s. 320.27, but does not include a motor vehicle auction as

31  defined in s. 320.27(1)(c)4.

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    Florida Senate - 2000                     CS for CS for SB 938
    308-2082A-00




  1         (b)  "Manufacturer" means a manufacturer as defined in

  2  s. 320.60.

  3         (c)  "Manufacturer's suggested retail price" means the

  4  retail price of a new motor vehicle suggested by the

  5  manufacturer set forth in 15 U.S.C. s. 1232, including the

  6  retail delivery price suggested by the manufacturer for each

  7  accessory or item of optional equipment physically attached to

  8  the new motor vehicle at the time it is delivered to the motor

  9  vehicle dealer.

10         (d)  "Motor vehicle" means any new automobile or truck

11  the equitable or legal title to which has never been

12  transferred by a manufacturer, distributor, importer, or

13  dealer to an ultimate purchaser. The term does not include

14  motor vehicles with a gross vehicle weight of 14,001 pounds or

15  more.

16         (e)  "Threshold amount" means 3 percent of the

17  manufacturer's suggested retail price of a motor vehicle or

18  $650, whichever is less.

19         (2)  RESPONSIBILITIES OF MANUFACTURER.--

20         (a)  A manufacturer shall disclose, in writing, to a

21  dealer at the time of delivery of a motor vehicle, damage and

22  repair to the motor vehicle which is actually known to the

23  manufacturer and which occurred at any time after the

24  manufacturing process was completed, but before delivery of

25  the vehicle to the dealer, if the cost of repairing the

26  damage, including diminution in value, exceeds the threshold

27  amount.

28         (b)1.  Notwithstanding the terms of any franchise

29  agreement, the manufacturer is liable for any and all damage

30  to a motor vehicle which is actually known to the manufacturer

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    Florida Senate - 2000                     CS for CS for SB 938
    308-2082A-00




  1  and which occurred at any time after the manufacturing process

  2  was complete, but before or during delivery to the dealer.

  3         2.  Whenever a new motor vehicle is damaged in transit

  4  or otherwise damaged before delivery to the dealer, the dealer

  5  shall:

  6         a.  Notify the manufacturer, or the manufacturer's

  7  transportation agent, in writing, of the damage within 3

  8  business days after the date the vehicle is delivered to the

  9  dealer; and

10         b.  Request from the manufacturer, or the

11  manufacturer's transportation agent, in writing, authorization

12  to replace the components, parts, and accessories damaged or

13  to otherwise repair the damage.

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15  Nothing in this section relieves the dealer's obligation to

16  cooperate with the manufacturer as necessary on filing any

17  transportation damage claim with the manufacturer's

18  transportation agent.

19         (c)  It is unlawful for any manufacturer to fail to

20  compensate, or provide compensation by the manufacturer's

21  transportation agent to, any dealer for repairs effected by

22  the dealer to a damaged motor vehicle or to a motor vehicle

23  damaged in transit or otherwise damaged before delivery to the

24  dealer, provided that written authorization is given to the

25  dealer by the manufacturer. Compensation shall include:

26         1.  The sum of any sublet for repairs or, if the dealer

27  repairs the vehicle, the dealer's warrant rate for parts and

28  labor; and

29         2.  Diminution in value of the vehicle if the dealer is

30  to retain and sell the vehicle by agreement between the dealer

31  and the manufacturer.

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    Florida Senate - 2000                     CS for CS for SB 938
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  1         (d)  If the manufacturer, or the manufacturer's

  2  transportation agent, refuses or fails to authorize repair of

  3  any damage within 10 business days after receiving

  4  notification given under this section, ownership of the motor

  5  vehicle shall revert to the manufacturer, and the dealer shall

  6  have no obligation, financial or otherwise, with respect to

  7  the motor vehicle. If the damage exceeds the threshold amount

  8  in (1)(f), the manufacturer may elect to repurchase the motor

  9  vehicle from the dealer or provide reasonable and adequate

10  compensation to the dealer to assist in selling the vehicle.

11  If the manufacturer repurchases the motor vehicle, the dealer

12  shall have no obligation, financial or otherwise, with respect

13  to the motor vehicle.

14         (3)  RESPONSIBILITIES OF DEALER.--A dealer shall

15  disclose, in writing, to the motor vehicle purchaser,

16  including a purchaser for resale, damage and repair to the

17  motor vehicle which is actually known to the dealer, before

18  entering into a sales contract, if the cost of repairing the

19  damage exceeds the threshold amount. For purposes of this

20  subsection, the threshold amount shall be calculated at the

21  rate of the dealer's authorized warranty rate for labor and

22  parts.  The disclosure must be acknowledged by the purchaser

23  in writing on a form presented by the dealer.  The dealer

24  shall retain a copy of the acknowledgement for his or her

25  records.

26         (4)  CONSUMER REMEDIES.--

27         (a)  If disclosure is required under this section and

28  the motor vehicle dealer fails to make the required

29  disclosure, a purchaser may either seek recovery of damages

30  under subparagraph l. or, if within 30 days from the date of

31  purchase, may rescind the sales contract under subparagraph 2.

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    Florida Senate - 2000                     CS for CS for SB 938
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  1         1.  In an action to recover damages under this

  2  paragraph, the court shall award a purchaser who prevails in

  3  such action only the amount of any pecuniary loss, litigation

  4  costs, and reasonable attorney's fees. The court shall not

  5  award damages for loss of use, lost profit, incidental damage,

  6  or any other claim. The action must be commenced within 1 year

  7  after the discovery of the damage or within 1 year after the

  8  time discovery reasonably should have been made by the

  9  purchaser, but in no event shall the action be brought more

10  than 2 years or 30,000 miles after delivery of the vehicle to

11  the purchaser.  A motor vehicle purchaser seeking recovery of

12  damages under this section is not precluded from pursuing

13  remedies available under any other law, including remedies

14  available under chapter 681; or

15         2.  To rescind the sales contract, the buyer must

16  return the motor vehicle to the dealer within 30 days from the

17  date of purchase with an accompanying written notice of the

18  grounds for rescission.  The dealer shall accept the motor

19  vehicle and refund any payments made to the dealer or

20  financial institution in connection with the transaction, less

21  a reasonable allowance for the purchaser's use of the motor

22  vehicle based upon the mileage attributable to the consumer as

23  of the date of return of the motor vehicle to the dealer,

24  multiplied by the purchase price of the vehicle and divided by

25  120,000. The dealer shall also pay off the balance of any loan

26  due to the lienholder as of the date the vehicle is returned

27  and any costs for early lease termination.

28         (b)  If disclosure is not required under this section,

29  the purchaser may not bring a civil action against the dealer

30  or manufacturer for damages or rescind a sales contract as

31  provided in subsection (4) based solely upon the fact that the

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    Florida Senate - 2000                     CS for CS for SB 938
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  1  new motor vehicle was damaged and repaired before completion

  2  of the sale.

  3         Section 2.  Paragraph (n) of subsection (9) of section

  4  320.27, Florida Statutes, is amended to read:

  5         320.27  Motor vehicle dealers.--

  6         (9)  DENIAL, SUSPENSION, OR REVOCATION.--The department

  7  may deny, suspend, or revoke any license issued hereunder or

  8  under the provisions of s. 320.77 or s. 320.771, upon proof

  9  that a licensee has failed to comply with any of the following

10  provisions with sufficient frequency so as to establish a

11  pattern of wrongdoing on the part of the licensee:

12         (n)  Failure to disclose damage to a new motor vehicle

13  as defined in s. 320.60(10) as required under s. 501.98 of

14  which the dealer had actual knowledge if the dealer's actual

15  cost of repair, excluding tires, bumpers, and glass, exceeds 3

16  percent of the manufacturer's suggested retail price;

17  provided, however, if only the application of exterior paint

18  is involved, disclosure shall be made if such touch-up paint

19  application exceeds $100.

20         Section 3.  This act shall take effect July 1, 2000.

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    Florida Senate - 2000                     CS for CS for SB 938
    308-2082A-00




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                            CS/SB 938

  3

  4  The bill addresses circumstances where a new motor vehicle is
    damaged after it has been manufactured but before the vehicle
  5  is delivered to a dealer for sale.

  6  The CS for CS removes from the bill the definition of
    "replacement parts" which were parts of the vehicle not
  7  included in determining the dollar amount of damage to the
    vehicle for purposes of determining when damage had to be
  8  disclosed by the manufacturer to the dealer and by the dealer
    to the purchaser.
  9
    The period for which the manufacturer must disclose damage to
10  the dealer is amended to include damage during delivery as
    well as prior to delivery. The definition of damage for
11  purposes of the threshold that requires disclosure is amended
    to include diminution in value of the vehicle in addition to
12  the cost of repairs.

13  The amount the court may award a buyer who prevails in an
    action to recover damages is limited to only the amount of any
14  pecuniary loss, litigation costs and reasonable attorney's
    fees. The court is prohibited from awarding damages for loss
15  of use, lost profit, incidental damages, or other claims.

16  The CS for CS provides that an action under the bill may not
    be brought more than 2 years or 30,000 miles after purchase of
17  the vehicle.

18  When a vehicle is returned to a dealer for failure to
    disclose, a definition is provided to determine the reasonable
19  allowance for the purchaser's use of the motor vehicle during
    the period prior to the time the vehicle is returned to the
20  dealer.

21  The bill further limits the right of a purchaser to bring an
    action under the bill if the dealer is not required to
22  disclose the damage because it is less than the threshold
    amount.
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