HB 13

1	A bill to be entitled
2	An act relating to the Motor Vehicle Warranty Enforcement
3	Act; amending s. 681.102, F.S.; revising definitions;
4	amending s. 681.104, F.S.; revising the calculation of
5	offset use for purposes of consumer refunds; revising
6	affirmative defenses to claims to limit them to certain
7	modifications or alterations; providing that absence of
8	privity of contract between a manufacturer and consumer
9	may not be raised as a breach of warranty defense against
10	the owner of the motor vehicle; amending s. 681.106, F.S.;
11	providing that bad faith or other unwarranted claims are
12	the only cause for an award of attorney's fees to a
13	manufacturer; amending s. 681.109, F.S.; providing that
14	the filing of a consumer claim arising during the Lemon
15	Law rights period with the manufacturer's certified
16	procedure is discretionary rather than mandatory;
17	authorizing the consumer to file a civil action to have
18	the dispute resolved by the courts if not satisfied with
19	the decision under the certified procedure or the
20	manufacturer's compliance therewith; authorizing the
21	consumer to apply directly to the Division of Consumer
22	Services of the Department of Agriculture and Consumer
23	Services to have a dispute submitted to the Florida New
24	Motor Vehicle Arbitration Board for arbitration; amending
25	s. 681.1095, F.S.; providing an alternative to a
26	requirement that a consumer must submit a claim to the
27	division before filing a civil action; revising the time
28	limit for appeal of certain arbitration decisions;
29	authorizing the award of reasonable attorney's fees to a
30	consumer who prevails in arbitration; amending s.
31	681.1096, F.S.; deleting a cross-reference to conform to
32	changes made by the act; amending s. 681.1097, F.S.;
33	making participation in the RV Mediation and Arbitration
34	Program discretionary rather than mandatory; providing
35	that arbitration hearings shall be conducted by three
36	arbitrators subject to certain qualifications; repealing
37	s. 681.113, F.S., relating to limitations on dealer
38	liability; providing an effective date.
39
40	Be It Enacted by the Legislature of the State of Florida:
41
42	Section 1.  Subsections (3), (10), (14), (15), (16), (19),
43	and (20) of section 681.102, Florida Statutes, are amended to
44	read:
45	681.102  Definitions.--As used in this chapter, the term:
46	(3)  "Collateral charges" means those additional charges to
47	a consumer wholly incurred as a result of the acquisition of the
48	motor vehicle. For the purposes of this chapter, collateral
49	charges include, but are not limited to, manufacturer-installed
50	or agent-installed items or service charges, earned finance
51	charges, sales taxes, and title charges, and insurance costs.
52	(10)  "Lemon Law rights period" means the period ending 34
53	24 months after the date of the original delivery of a motor
54	vehicle to a consumer.
55	(14)  "Manufacturer" means any person, whether a resident
56	or nonresident of this state, who manufactures or assembles
57	motor vehicles or recreational vehicles, or who manufactures or
58	assembles chassis for recreational vehicles, or who manufactures
59	or installs on previously assembled truck or recreational
60	vehicle chassis special bodies or equipment which, when
61	installed, forms an integral part of the motor vehicle, a
62	distributor as defined in s. 320.60(5), or an importer as
63	defined in s. 320.60(7). A dealer as defined in s. 320.60(11)(a)
64	shall not be deemed to be a manufacturer, distributor, or
65	importer as provided in this section.
66	(15)  "Motor vehicle" means a new vehicle, propelled by
67	power other than muscular power, which is sold in this state to
68	transport persons or property, and includes a recreational
69	vehicle or a vehicle used as a demonstrator or leased vehicle if
70	a manufacturer's warranty was issued as a condition of sale, or
71	the lessee is responsible for repairs, but does not include
72	vehicles run only upon tracks, off-road vehicles, trucks over
73	15,000 10,000 pounds gross vehicle weight, motorcycles, or
74	mopeds. The term "motor vehicle" also includes a used vehicle
75	within the applicable mileage and time limits of the
76	manufacturer's warranty, or the living facilities of
77	recreational vehicles. "Living facilities of recreational
78	vehicles" are those portions designed, used, or maintained
79	primarily as living quarters and include, but are not limited
80	to, the flooring, plumbing system and fixtures, roof air
81	conditioner, furnace, generator, electrical systems other than
82	automotive circuits, the side entrance door, exterior
83	compartments, and windows other than the windshield and driver
84	and front passenger windows.
85	(16)  "Nonconformity" means a defect or condition that
86	substantially impairs the use, value, or safety of a motor
87	vehicle, but does not include a defect or condition that results
88	from an accident, abuse, neglect, modification causing the
89	defect or condition, or alteration causing the defect or
90	condition of the motor vehicle by persons other than the
91	manufacturer or its authorized service agent.
92	(19)  "Purchase price" means the cash price as defined in
93	s. 520.31(2), inclusive of any allowance for a trade-in vehicle,
94	but excludes debt from any other transaction. "Any allowance for
95	a trade-in vehicle" means the net trade-in allowance as
96	reflected in the purchase contract or lease agreement if
97	acceptable to the consumer and manufacturer. If such amount is
98	not acceptable to the consumer and manufacturer, then the trade-
99	in allowance shall be an amount equal to 100 percent of the
100	retail price of the trade-in vehicle as reflected in the NADA
101	Official Used Car Guide (Southeastern Edition) or NADA
102	Recreation Vehicle Appraisal Guide, whichever is applicable, in
103	effect at the time of the trade-in. The manufacturer shall be
104	responsible for providing the applicable NADA book.
105	(20)  "Reasonable offset for use" means the number of miles
106	attributable to a consumer up to the date of a settlement
107	agreement or arbitration hearing, whichever occurs first,
108	multiplied by the purchase price of the motor vehicle and
109	divided by 120,000, except in the case of a recreational
110	vehicle, in which event it shall be divided by 60,000.
111	Section 2.  Paragraph (a) of subsection (2) and subsection
112	(4) of section 681.104, Florida Statutes, are amended to read:
113	681.104  Nonconformity of motor vehicles.--
114	(2)(a)  If the manufacturer, or its authorized service
115	agent, cannot conform the motor vehicle to the warranty by
116	repairing or correcting any nonconformity after a reasonable
117	number of attempts, the manufacturer, within 40 days, shall
118	repurchase the motor vehicle and refund the full purchase price
119	to the consumer, less a reasonable offset for use, or, in
120	consideration of its receipt of payment from the consumer of a
121	reasonable offset for use calculated using the offset mileage as
122	of the date of the final attempt to repair, replace the motor
123	vehicle with a replacement motor vehicle acceptable to the
124	consumer. The refund or replacement must include all reasonably
125	incurred collateral and incidental charges. However, the
126	consumer has an unconditional right to choose a refund rather
127	than a replacement motor vehicle. Upon receipt of such refund or
128	replacement, the consumer, lienholder, or lessor shall furnish
129	to the manufacturer clear title to and possession of the motor
130	vehicle.
131	(4)  It is an affirmative defense to any claim under this
132	chapter that:
133	(a)  The alleged nonconformity does not substantially
134	impair the use, value, or safety of the motor vehicle;
135	(b)  The nonconformity is the result of an accident, abuse,
136	neglect, or unauthorized modification causing the defect or
137	condition, modifications or unauthorized alteration causing the
138	defect or condition alterations of the motor vehicle by a person
139	persons other than the manufacturer or its authorized service
140	agent; or
141	(c)  The claim by the consumer was not filed in good faith.
142
143	Any other affirmative defense allowed by law may be raised
144	against the claim. However, absence of privity of contract
145	between a manufacturer and consumer may not be raised as a
146	breach of warranty defense against the owner of the motor
147	vehicle.
148	Section 3.  Section 681.106, Florida Statutes, is amended
149	to read:
150	681.106  Bad faith claims.--Any claim by a consumer which
151	is found by the court to have been filed in bad faith or solely
152	for the purpose of harassment, or in complete absence of a
153	justiciable issue of either law or fact raised by the consumer,
154	shall result in the consumer being liable for all costs and
155	reasonable attorney's fees incurred by the manufacturer, or its
156	agent, as a direct result of the bad faith claim. Such claims
157	shall be the only cause for an award of reasonable attorney's
158	fees to a manufacturer.
159	Section 4.  Subsections (1), (2), and (3) of section
160	681.109, Florida Statutes, are amended to read:
161	681.109  Florida New Motor Vehicle Arbitration Board;
162	dispute eligibility.--
163	(1)  If a manufacturer has a certified procedure, a
164	consumer claim arising during the Lemon Law rights period may
165	must be filed with the certified procedure no later than 60 days
166	after the expiration of the Lemon Law rights period. If a
167	decision is not rendered by the certified procedure within 40
168	days of filing, the consumer may apply to the division to have
169	the dispute removed to the board for arbitration.
170	(2)  If a manufacturer has a certified procedure, a
171	consumer claim arising during the Lemon Law rights period may
172	must be filed with the certified procedure no later than 60 days
173	after the expiration of the Lemon Law rights period. If a
174	consumer is not satisfied with the decision or the
175	manufacturer's compliance therewith, the consumer may file a
176	civil action to have the dispute resolved by the courts apply to
177	the division to have the dispute submitted to the board for
178	arbitration. A manufacturer may not seek review of a decision
179	made under its procedure.
180	(3)  If a manufacturer has no certified procedure or if a
181	certified procedure does not have jurisdiction to resolve the
182	dispute, A consumer may apply directly to the division to have
183	the dispute submitted to the board for arbitration.
184	Section 5.  Subsections (4), (10), and (11) of section
185	681.1095, Florida Statutes, are amended, and subsection (17) is
186	added to that section, to read:
187	681.1095  Florida New Motor Vehicle Arbitration Board;
188	creation and function.--
189	(4)  Before filing a civil action on a matter subject to s.
190	681.104, the consumer must first submit the dispute to either
191	the manufacturer's certified dispute settlement procedure or the
192	division, and to the board if such dispute is deemed eligible
193	for arbitration.
194	(10)  A decision is final unless appealed by either party.
195	A petition to the circuit court to appeal a decision must be
196	made within 40 30 days after receipt of the decision. The
197	petition shall be filed in the county where the consumer
198	resides, or where the motor vehicle was acquired, or where the
199	arbitration hearing was conducted. Within 7 days after the
200	petition has been filed, the appealing party must send a copy of
201	the petition to the department. If the department does not
202	receive notice of such petition within 40 days after the
203	manufacturer's receipt of a decision in favor of the consumer,
204	and the manufacturer has neither complied with, nor has
205	petitioned to appeal such decision, the department may apply to
206	the circuit court to seek imposition of a fine up to $1,000 per
207	day against the manufacturer until the amount stands at twice
208	the purchase price of the motor vehicle, unless the manufacturer
209	provides clear and convincing evidence that the delay or failure
210	was beyond its control or was acceptable to the consumer as
211	evidenced by a written statement signed by the consumer. If the
212	manufacturer fails to provide such evidence or fails to pay the
213	fine, the department shall initiate proceedings against the
214	manufacturer for failure to pay such fine. The proceeds from the
215	fine herein imposed shall be placed in the Motor Vehicle
216	Warranty Trust Fund in the department for implementation and
217	enforcement of this chapter. If the manufacturer fails to comply
218	with the provisions of this subsection, the court shall affirm
219	the award upon application by the consumer.
220	(11)  All provisions in this section and s. 681.109
221	pertaining to compulsory arbitration before the board, the
222	dispute eligibility screening by the division, the proceedings
223	and decisions of the board, and any appeals thereof, are exempt
224	from the provisions of chapter 120.
225	(17)  The arbitrator may award a consumer who prevails in
226	the arbitration reasonable attorney's fees.
227	Section 6.  Subsection (2) of section 681.1096, Florida
228	Statutes, is amended to read:
229	681.1096  RV Mediation and Arbitration Program; creation
230	and qualifications.--
231	(2)  Each manufacturer of a recreational vehicle involved
232	in a dispute that is determined eligible under this chapter,
233	including chassis and component manufacturers which separately
234	warrant the chassis and components and which otherwise meet the
235	definition of manufacturer set forth in s. 681.102(14), shall
236	participate in a mediation and arbitration program that is
237	deemed qualified by the department.
238	Section 7.  Subsections (1), (2), (4), (5), (6), (7), and
239	(8) of section 681.1097, Florida Statutes, are amended to read:
240	681.1097  RV Mediation and Arbitration Program; dispute
241	eligibility and program function.--
242	(1)  Before filing a civil action on a matter subject to s.
243	681.104, a consumer who acquires a recreational vehicle may must
244	first submit the dispute to the program if the dispute is deemed
245	eligible. Such consumer is not required to resort to a procedure
246	certified pursuant to s. 681.108, notwithstanding that one of
247	the manufacturers of the recreational vehicle has such a
248	procedure. Such consumer is not required to resort to
249	arbitration conducted by the board, except as provided in s.
250	681.1096(4) and in this section.
251	(2)  A consumer acquiring a recreational vehicle may must
252	apply to participate in this program with respect to a claim
253	arising during the Lemon Law rights period by filing the
254	application in subsection (3) with the program no later than 60
255	days after the expiration of the Lemon Law rights period. The
256	claim is considered filed when the application is date-stamped
257	as received by the program.
258	(4)  Mediation shall be optional mandatory for both the
259	consumer and manufacturer, unless the dispute is settled prior
260	to the scheduled mediation conference. The mediation conference
261	shall be confidential and inadmissible in any subsequent
262	adversarial proceedings. Participation shall be limited to the
263	parties directly involved in the dispute and their attorneys, if
264	any. All manufacturers shall be represented by persons with
265	settlement authority. The parties may, by agreement, consent to
266	expand the scope of a mediation conference to attempt to resolve
267	warranty claims by the consumer which may not be covered under
268	this chapter, if such claims were reported by the consumer to
269	the manufacturer or its authorized service agent during the term
270	of the manufacturer's express warranty.
271	(a)  Upon determination that an application is eligible,
272	the program administrator shall notify the consumer and all
273	involved manufacturers in writing that an eligible application
274	has been received. Such notification shall include a statement
275	that a mediation conference will be scheduled, shall identify
276	the assigned mediator, and provide information regarding the
277	program's procedures. The program administrator shall provide
278	all involved manufacturers with a copy of the completed
279	application and obtain from each manufacturer a written response
280	to the allegations contained in the application along with
281	copies of any documents in support of such response. The written
282	response shall be on a form and submitted in the manner
283	prescribed by the program.
284	(b)  The mediator shall be selected and assigned by the
285	program administrator. The parties may factually object to a
286	mediator based upon the mediator's past or present relationship
287	with a party or a party's attorney, direct or indirect, whether
288	financial, professional, social, or of any other kind. The
289	program administrator shall consider any such objection,
290	determine its validity, and notify the parties of any
291	determination. If the objection is determined valid, the program
292	administrator shall assign another mediator to the case.
293	(c)  At the mediation conference, the mediator shall assist
294	the parties' efforts to reach a mutually acceptable settlement
295	of their dispute; however, the mediator shall not impose any
296	settlement upon the parties.
297	(d)  Upon conclusion of the mediation conference, the
298	mediator shall notify the program administrator that the case
299	has settled or remains at an impasse.
300	(e)  If the mediation conference ends in an impasse, it
301	shall proceed to arbitration pursuant to subsection (5). The
302	program administrator shall immediately notify the parties in
303	writing that the dispute will proceed to arbitration and shall
304	identify the assigned arbitrators arbitrator.
305	(f)  If the parties enter into a settlement at any time
306	after the dispute has been submitted to the program, such
307	settlement must be reduced to legible writing, signed by the
308	consumer and all involved manufacturers, and filed with the
309	program administrator. All settlements must contain, at a
310	minimum, the following information:
311	1.  Name and address of the consumer.
312	2.  Name and address of each involved manufacturer.
313	3.  Year, make, model, and vehicle identification number of
314	the subject recreational vehicle.
315	4.  Name and address of the dealership from which the
316	recreational vehicle was acquired.
317	5.  Date the claim was received by the program
318	administrator.
319	6.  Name of the mediator or arbitrators arbitrator, if any.
320	7.  A complete statement of the terms of the agreement,
321	including, but not limited to: whether the vehicle is to be
322	reacquired by a manufacturer and the identity of the
323	manufacturer that will reacquire the vehicle; the amount of any
324	moneys to be paid by the consumer or a manufacturer; the year,
325	make, and model of any replacement motor vehicle or motor
326	vehicle accepted by the consumer as a trade-assist; the date,
327	time, location, and nature of any agreed-upon repair or
328	replacement of a component part or accessory and an estimate as
329	to the anticipated length of time for such repair or
330	replacement; and a time certain for performance not to exceed 40
331	days from the date the settlement agreement is signed by the
332	parties.
333	(g)  If a manufacturer fails to perform within the time
334	required in any settlement agreement, the consumer must notify
335	the program administrator of such failure in writing within 30
336	days of the required performance date. Within 10 days of receipt
337	of such notice, the program administrator shall determine
338	whether the dispute is eligible to proceed to arbitration and
339	shall schedule the matter for an arbitration hearing pursuant to
340	subsection (5). If the program administrator determines the
341	dispute is not eligible for arbitration, the dispute shall be
342	rejected pursuant to subsection (3).
343	(5)  Arbitration proceedings shall be open to the public on
344	reasonable and nondiscriminatory terms.
345	(a)  The arbitration hearing shall be conducted by three
346	arbitrators a single arbitrator assigned by the program
347	administrator. The arbitrators are subject to the same
348	qualifications as three-member board panels provided by s.
349	681.1095 and may arbitrator shall not include be the same person
350	as the mediator who conducted the prior mediation conference in
351	the dispute. The parties may factually object to an arbitrator
352	based on the arbitrator's past or present relationship with a
353	party or a party's attorney, direct or indirect, whether
354	financial, professional, social, or of any other kind. The
355	program administrator shall consider any such objection,
356	determine its validity, and notify the parties of any
357	determination. If the objection is determined valid, the program
358	administrator shall assign another arbitrator to the case.
359	(b)  The arbitrators arbitrator may issue subpoenas for the
360	attendance of witnesses and for the production of records,
361	documents, and other evidence. Subpoenas so issued shall be
362	served and, upon application to the court by a party to the
363	arbitration, enforced in the manner provided by law for the
364	service and enforcement of subpoenas in civil actions. Fees for
365	attendance as a witness shall be the same as for a witness in
366	the circuit court.
367	(c)  At all program arbitration proceedings, the parties
368	may present oral and written testimony, present witnesses and
369	evidence relevant to the dispute, cross-examine witnesses, and
370	be represented by counsel. The technical rules of evidence as
371	are applicable to civil court proceedings do not apply to
372	arbitrations conducted by the program. The arbitrators
373	arbitrator shall record the arbitration hearing and shall have
374	the power to administer oaths. The arbitrators arbitrator may
375	inspect the vehicle if requested by a party or if the
376	arbitrators consider arbitrator considers such inspection
377	appropriate. The parties may, by mutual written agreement,
378	consent to expand the scope of the arbitration hearing to permit
379	consideration by the arbitrators arbitrator of warranty claims
380	by the consumer that may not be covered under this chapter,
381	provided such claims were first reported by the consumer to the
382	manufacturer or its authorized service agent during the term of
383	the manufacturer's express warranty.
384	(d)  The arbitrators program arbitrator may continue a
385	hearing on their his or her own motion or upon the request of a
386	party for good cause shown. A request for continuance by the
387	consumer constitutes a waiver of the time period set forth in s.
388	681.1096(3)(k) for completion of all proceedings under the
389	program.
390	(e)  The arbitrators arbitrator shall, in rendering
391	decisions, take into account all legal and equitable factors
392	germane to a fair and just decision, including, but not limited
393	to, the warranty and the provisions of this chapter.
394	(f)  The arbitrators program arbitrator shall render a
395	decision within 10 days of the closing of the hearing. The
396	decision shall be in legible writing on a form prescribed by the
397	program. The program administrator shall send a copy of the
398	decision to the consumer and each involved manufacturer by
399	registered mail.
400	(g)  A manufacturer shall comply with an arbitration
401	decision within 40 days of the date the manufacturer receives
402	the written decision. Compliance occurs on the date the consumer
403	receives the relief specified in the arbitration award.
404	(h)  If a manufacturer fails to comply within the time
405	required, and no appeal has been filed, the consumer shall
406	notify the program administrator of such failure in writing
407	within 30 days. The program administrator shall notify the
408	department of a manufacturer's failure to comply. A consumer may
409	apply to a court of competent jurisdiction in this state for
410	entry of an order confirming the award. Such application shall
411	be by motion filed within 40 days after the manufacturer's
412	failure to comply and shall be heard in the manner and upon
413	notice provided by law or rule of court for the making and
414	hearing of motions. Such application shall be served in the
415	manner provided by law for the service of a civil summons. The
416	consumer shall send a copy of the application for confirmation
417	of the award and any order entered by the court confirming the
418	award to the program administrator.
419	(i)  Either party may request that the arbitrators program
420	arbitrator make a technical correction to the decision by filing
421	a written request with the program administrator within 10 days
422	after receipt of the written decision. Technical corrections
423	shall be limited to computational errors, correction of a
424	party's name or information regarding the recreational vehicle,
425	and typographical or spelling errors. Technical correction of a
426	decision shall not toll the time for filing an appeal or for
427	manufacturer compliance.
428	(6)  Except as otherwise provided, all provisions in this
429	section pertaining to mandatory mediation and arbitration,
430	eligibility screening, mediation proceedings, arbitration
431	hearings and decisions, and any appeals thereof are exempt from
432	the provisions of chapter 120.
433	(7)  A decision of the arbitrators arbitrator is binding
434	unless appealed by either party by filing a petition with the
435	circuit court within the time and in the manner prescribed by s.
436	681.1095(10) and (12). Section 681.1095(13) and (14) apply to
437	appeals filed under this section. If a decision of the
438	arbitrators a program arbitrator in favor of a consumer is
439	confirmed by the court, recovery by the consumer shall include
440	the pecuniary value of the award, attorney's fees incurred in
441	obtaining confirmation of the award, and all costs and
442	continuing damages in the amount of $25 per day for each day
443	beyond the 40-day period following a manufacturer's receipt of
444	the arbitrators' arbitrator's decision. If a court determines
445	the manufacturer acted in bad faith in bringing the appeal or
446	brought the appeal solely for the purpose of harassment, or in
447	complete absence of a justiciable issue of law or fact, the
448	court shall double, and may triple, the amount of the total
449	award.
450	(8)  In any civil action arising under this chapter
451	relating to a dispute arbitrated pursuant to this section, the
452	decision of the arbitrators arbitrator is admissible in
453	evidence.
454	Section 8.  Section 681.113, Florida Statutes, is repealed.
455	Section 9.  This act shall take effect July 1, 2007.

CODING: Words stricken are deletions; words underlined are additions.