Lemon Law - Massachusetts
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law:
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state. They are not and
should not be considered legal opinions or advice as to whether you
have rights under lemon law or whether you should pursue "a
lemon law case". If after reading this information,
you believe you qualify, you should seek the advice and counsel of
an attorney specializing in lemon law in your state. Remember
that each state's lemon laws vary.
90:7N Voiding contracts of sale.
Notwithstanding any disclaimer of
warranty, a motor vehicle contract of sale may be voided by the
buyer if the motor vehicle fails to pass, within seven days from the
date of such sale, the periodic staggered inspection at an
inspection station licensed pursuant to section seven W; provided,
that the defects which are the reasons for the failure to issue a
certificate of inspection were not caused by the abusive or
negligent operation of the motor vehicle or by damage resulting from
an accident or collision occurring after the date of the sale; and
provided, further, that the cost of repairs necessary to permit the
issuance of a certificate of inspection exceeds ten per cent of the
purchase price of the motor vehicle.
In order to void a motor vehicle
sale under this section the buyer shall, within fourteen days from
the date of sale, notify the seller of his intention to do so,
deliver the motor vehicle to the seller, provide the seller with a
written statement signed by an authorized agent of such inspection
station stating the reasons why the motor vehicle failed to pass the
safety or combined safety and emissions inspection and an estimate
of the cost of necessary repairs. The buyer shall be entitled to a
refund of his purchase price unless the buyer and seller agree in
writing that the seller may make the necessary repairs at his own
cost and expense within a reasonable period of time thereafter. This
section shall apply only to motor vehicles purchased for the
immediate personal or family use of the buyer.
90:7N.25 Express warranty by
dealer of used motor vehicle.
Issuance; consumer's rights and
remedies.
(1) For the purposes of this
section the following words shall have the following meanings:
"Business day", Monday to
Friday, inclusive, except for state or federal holidays.
"Consumer", a buyer,
other than for purposes of resale, of a motor vehicle, any person to
whom such motor vehicle is transferred during the period of any
express or statutory warranty under this section applicable to such
motor vehicle, and any other person entitled by the terms of such
warranty to enforce its obligations.
"Dealer", any person
engaged in the business of selling, offering for sale, or
negotiating the retail sale of used motor vehicles or selling motor
vehicles as broker or agent for another, including the officers,
agents and employees of such person and any combination or
association of dealers, but not including a bank or other financial
institution, or the commonwealth, its agencies, bureaus, boards,
commissions, authorities, nor any of its political subdivisions. A
person shall be deemed to be engaged in the business of selling used
motor vehicles if such person has sold more than three used motor
vehicles in the preceding twelve months.
"Motor vehicle" or
"vehicle", any motor vehicle as defined in section one,
sold or replaced by a dealer or manufacturer, except that it shall
not include auto homes, vehicles built primarily for off-road use or
any vehicle used primarily for business purposes.
"Private seller", any
person who is not a dealer and who offers to sell or sells a used
motor vehicle to a consumer.
"Purchase price", the
total of all payments made for the purchase of a vehicle, including
but not limited to any finance charges, registration fees, payments
made for credit life, accident, health, and damage insurance, and
collision and related comprehensive insurance coverage's and service
contracts and the value of a trade-in.
"Repurchase price", the
purchase price, as defined above, less any cash award that was made
by the dealer in an attempt to resolve the dispute and was accepted
by the consumer, and less any refunds or rebates to which the
consumer is entitled, plus any incidental damages not previously
reimbursed, including but not limited to the reasonable costs of
towing from point of breakdown up to thirty miles to obtain required
repairs or to return the vehicle under this section, and the
reasonable costs of obtaining alternative transportation during the
applicable warranty period after the second day following each such
breakdown not to exceed fifteen dollars vehicle rental charges for
each day in which the cost of such alternative transportation is
reimbursable.
"Used motor vehicle" or
"used vehicle", any vehicle driven more than the limited
use necessary in moving or road testing a new vehicle prior to
delivery to a consumer, including a demonstrator vehicle, except
that it shall not include auto homes, vehicles built primarily for
off road use, motorcycles, or any vehicle used primarily for
business purposes.
(2)
(A)
(i) No used motor vehicle
shall be sold in the commonwealth by a dealer to a consumer unless
accompanied by an express written warranty covering the full cost of
both parts and labor necessary to repair any defect that impairs the
said used motor vehicle's safety or use; provided, however, that the
consumer may be required to pay no more than one hundred dollars
total toward the repair of any covered defect, series of defects or
combination of defects during the warranty period. Defects that
affect only appearance shall not be deemed to impair safety or use
for the purposes of this section. For the purposes of this section,
defect shall include defect, malfunction or any combination or
defects or malfunctions.
(ii) Defects or malfunctions
which involve parts or components that are covered or are warranted
under an express warranty issued by the dealer of the used motor
vehicle shall be excluded from this section if the following
conditions have been met: the manufacturer's warranty has been duly
assigned or transferred to the buyer; is enforceable according to
its terms; is not inconsistent with this section; and, the seller
has assured that the repair authorized by such manufacturer's
express warranty was made.
The terms of the seller's warranty
shall be tolled for any period of time the used motor vehicle is out
of service by reason of repair under the manufacturer's warranty.
(B) The express warranties
required by this section shall be of the following durations:
(i) For a used motor vehicle
which, at the time of sale, has been operated less than forty
thousand miles, ninety days or three thousand seven hundred and
fifty miles, whichever occurs first. Said ninety days or three
thousand seven hundred and fifty mile warranty is in addition to any
right the consumer may have under section seven N.50.
(ii) For a used motor
vehicle which, at the time of sale, has been operated forty thousand
miles or more, but less than eighty thousand miles, sixty days or
two thousand five hundred miles, whichever first occur.
(iii) For a used motor
vehicle which, at the time of sale, has been operated eighty
thousand miles or more, but less than one hundred and twenty-five
thousand miles, thirty days or one thousand two hundred and fifty
miles, whichever first occur.
(iv) If the used motor
vehicle's true mileage is not known, such warranty period shall be
determined by the age of said used motor vehicle in the following
manner: a used motor vehicle three years old or less shall have a
warranty as provided in clause (i); a used motor vehicle more than
three, but less than six years old, shall have a warranty as
provided in clause (ii); and a used motor vehicle six years old or
more shall have a warranty as provided in clause (iii). A used motor
vehicle's age shall be determined by subtracting its model year from
the year in which the warranty holder purchased said used vehicle.
(C) The warranty periods
established by this section shall be tolled during any period in
which the used motor vehicle is out of service as a result of any
repair attempt pursuant to any warranty created by this section. The
applicable warranty period shall be extended thirty days from the
date of completion of any repair required by this section as to the
defect repaired if the warranty would otherwise have expired during
such period.
(3)
(A) A dealer may repair,
within the meaning of this section, either by performing the repair
himself or by arranging and making payment for prompt repair by
another.
(i) A consumer shall return
a vehicle for repair under this section by presenting it to the
dealer no later than five business days after the expiration of the
applicable warranty period and informing him of the defect. Said
return period shall be tolled during any time period in which the
consumer has notified the dealer of the defect but cannot reasonably
present the vehicle to the dealer; including, but not limited to,
the reason that a used motor vehicle is inoperable and the dealer
refuses to pay the charge to tow said vehicle. The dealer shall
immediately accept return of a vehicle when it is so presented. Said
used motor vehicle shall be deemed out of service commencing the day
it is so presented, notwithstanding any dealer's failure to accept
its return on said day. During the applicable warranty period and
the aforesaid return period, the dealer shall pay the reasonable
costs of towing from point of breakdown up to thirty miles to obtain
required repairs or to return the vehicle to the dealer.
Upon return of the used motor
vehicle to the consumer after repair, the dealer shall provide the
consumer with a warranty repair receipt describing (a) the defect
complained of, (b) the work performed in an attempt to correct such
defect and the identity of the repairer if it is not the dealer, and
(c) the parts replaced in performing such work. For the dealer to
toll the ten business day period as provided in clause (ii) of this
paragraph said dealer shall attach to each such warranty repair
receipt copies of such order forms, invoices, receipts or other
evidence of a parts order and its receipt to evidence his compliance
with this paragraph.
(ii) If the dealer fails to
repair the same defect within three attempts, or if the used motor
vehicle is out of service for more than a cumulative total of ten
business days after the consumer has returned it to the dealer for
repair of the same, then the dealer shall accept return of the
vehicle from the consumer and refund the full repurchase price, less
a reasonable allowance for use. A reasonable allowance for use shall
be fifteen cents for each mile the used motor vehicle has been
operated between its sale and the dealer's repurchase.
A consumer shall have the option of
retaining the use of any vehicle returned under the provisions of
this section until such time as said consumer has been tendered a
full refund. The use of any vehicle retained by a consumer after its
return to a manufacturer under the provisions of this section,
shall, in instances in which a refund is tendered, be reflected in
the above-mentioned reasonable allowance for use.
A used motor vehicle shall not be
considered out of service for purposes of the ten business-day
period described hereinabove for any day in which a part necessary
to repair a defect complained of is not in the dealer's possession;
provided, however, that the dealer has ordered the part by
reasonable means on the same day on which he knew or should have
known that the part was necessary, except that in no event shall a
part's unavailability operate to toll the ten business-day period
for more than twenty-one days. The applicable warranty period shall
be extended by the number of days a part is unavailable.
(iii) All dealers shall
submit to state-certified, used car arbitration, if such arbitration
is requested by the consumer, asserting his or her right to a
repurchase under this section, within six months from the date of
original delivery to such consumer of a used motor vehicle.
State-certified, used car arbitration shall be performed by a
professional arbitrator or arbitration firm appointed by the
secretary of consumer affairs and business regulation and operating
in accordance with the regulations promulgated pursuant to this
section, and shall result in a written finding of whether the motor
vehicle in dispute meets the standards set forth by this section for
vehicles that are required to be repurchased. Said finding shall be
issued within forty-five days of receipt by said secretary of a
request by a consumer for state-certified arbitration under this
section. Said secretary shall promulgate rules and regulations
governing the proceedings of state-certified, used car arbitration
which shall promote their fairness and efficiency. Such rules and
regulations shall include, but not be limited to, a requirement of
the personal objectivity of each such arbitrator, and the protection
of the right of each party to present its case and to be in
attendance during any presentation made by the other party.
If a motor vehicle is found by
state-certified, used car arbitration to have met the standards set
forth by this section for vehicles required to be repurchased, and
if the dealer who sold said motor vehicle is found to have failed to
provide said refund as required, such dealer shall, within
twenty-one days from the issuance of such finding, deliver such
refund, including the incidental and other costs set forth in the
definition of "repurchase price" or appeal the finding in
a district or superior court. No such appeal by a dealer shall be
heard unless the petition for such appeal is filed with the clerk of
the district or superior court within twenty-one days of issuance of
the finding of the state-certified arbitration and is accompanied by
a bond in a principal sum equal to the money award made by the
state-certified arbitrator plus five hundred dollars for anticipated
attorneys' fees, secured by cash or its equivalent, payable to the
consumer.
The liability of the surety of any
bond filed pursuant to this section shall be limited to the
indemnification of the consumer in the action. Such bond shall not
limit or impair any right of recovery otherwise available pursuant
to law, nor shall the amount of the bond be relevant in determining
the amount of recovery to which the consumer shall be entitled.
Upon an appeal, the court shall
vacate the award only if:
(a) the award was procured
by corruption, fraud or other undue means;
(b) there was evident
partiality by an arbitrator or corruption in any of the arbitrators,
or misconduct prejudicing the rights of any party; or
(c) the arbitrators exceeded
their powers.
In addition to any other rights and
remedies, any consumer dissatisfied with any finding of
state-certified, used car arbitration shall have the right to file a
claim pursuant to chapter ninety-three A.
In addition to any other recovery,
any prevailing consumer shall be awarded reasonable attorneys' fees
and costs.
Whoever, within twenty-one days of
any finding in favor of the consumer of the state-certified, used
car arbitration, fails to appeal such finding and does not deliver a
refund shall be punished by a fine of fifty dollars per day until
the delivery of such refund. Said fine shall not exceed five hundred
dollars for each such violation. The amount of said fine shall begin
to accumulate on the twenty-second day following the arbitration
decision. If eighty-one days has elapsed from the issuance of a
finding in favor of the consumer of the state-certified, used car
arbitration, and no appeal has been taken and no award delivered and
no fine paid, the attorney general shall initiate proceedings
against dealer for failure to pay said fine. The proceedings
initiated pursuant to the provisions of this section shall be
commenced in superior court department of the trial court.
In addition to the remedies
hereinbefore provided, the attorney general may bring an action on
behalf of the commonwealth to restrain further violation of this
section, to enforce any provision, and for such other relief as may
be appropriate.
(iv) At any time within the
applicable warranty period and after a consumer has complained of a
defect, notwithstanding any objection from the consumer, the dealer
shall have the option of repurchasing a used vehicle and refunding
the full repurchase price, less a reasonable allowance for use. A
reasonable allowance for use shall be fifteen cents for each mile
the used motor vehicle had been operated between its sale and the
dealer's repurchase.
(v) If the dealer is
required to or elects to repurchase a vehicle under the terms of
this section, the consumer and dealer shall cooperate with each
other to execute all necessary documents in order to clear the title
of any encumbrances on the repurchased vehicle.
(B) It shall be an
affirmative defense to any claim under this section that an alleged
defect
(i) does not impair the
vehicle's use or safety,
(ii) is the result of owner
negligence, abuse, damage caused by accident, vandalism, or, an
attempt to repair the vehicle by a person other than the dealer, the
dealer's designee, or the manufacturer's representative under clause
(ii) of paragraph (A) of subsection (2),
(iii) is the result of any
attempt by the consumer to modify the vehicle,
(iv) was covered or
warranted under an express warranty issued by the manufacturer of
such used motor vehicle, that such warranty issued by the
manufacturer of such used motor vehicle was in effect during the
warranty period established by this section, so long as the
conditions in said clause (ii) of said paragraph (A) of said
subsection (2) are met.
(4) Clear and conspicuous
notice of the warranties created by this section, of the rights
pertaining thereto, and of the implied warranty of merchantability
shall be given to the consumer in writing at the time the consumer
purchases a used motor vehicle from the dealer. Failure to provide
such notice shall toll the warranty periods under this section until
such notice is given.
(5) The secretary of
consumer affairs and business regulation shall promulgate rules and
regulations to implement the notice provisions of this section. Said
rules and regulations shall include the establishment of wording,
format, placement, and distribution of all notices specified in this
section. In her discretion, and in order to facilitate ease of
understanding by consumers, said secretary may consolidate the
notices required by this section and any other notices pertaining to
the purchase of motor vehicles; provided, however, that such
consolidation does not render the notices inconsistent with any of
the provisions of this section or any other law. Each notice
required by this section shall describe the procedures available to
redress violations of this section and shall contain the telephone
number of the attorney general's consumer protection division
complaint section and the executive office of consumer affairs and
business regulation.
(6) A dealer's failure to
comply with any of the provisions of this section shall constitute
an unfair or deceptive act under the provisions of chapter
ninety-three A.
(7) Notwithstanding any
provisions of law to the contrary, this section shall not apply to
any used motor vehicle sold by a dealer to a consumer for less than
seven hundred dollars.
(8) A private seller shall
clearly disclose to any prospective buyer, before the sale is
completed, all defects the seller knows of which impair the used
motor vehicle's safety or substantially impair its use. Failure to
so disclose known defects shall entitle the buyer, within thirty
days after the sale, to rescind the sale and be entitled to return
of all monies paid to the seller less a reasonable amount for use as
defined in clause (iv) of paragraph (A) subsection (3). In any
subsequent action by a buyer under this section, if the court finds
that the settlement offer was unreasonable in light of the
circumstances or that the private seller has otherwise failed to
comply with the requirements of this subsection, in addition to
damages, it shall award the buyer reasonable attorneys' fees and
costs; if the court finds that the buyer's action was frivolous or
not in good faith, it shall award the seller reasonable attorneys'
fees and costs. It shall be an affirmative defense in any such
action that an alleged defect does not impair the vehicle's safety,
or substantially impair its use, or that it is the result of the
buyer's negligence, abuse, damage caused by accident, vandalism or
attempt to modify the vehicle.
(9) Nothing in this section
shall be construed in any way to limit the enforceability of any
implied warranties created by law, any rights created by section
seven N or seven N.50 or chapter ninety-three A or any rules and
regulations promulgated pursuant thereto, or express warranties
given by a dealer in connection with the sale of a used motor
vehicle, or any other rights or remedies available to consumers
under applicable law.
(10) If a consumer is
eligible for relief under the provisions of section seven N.50 to
have repairs effected or other relief provided under the provisions
of an express warranty covering such used motor vehicle issued by
the manufacturer of such used motor vehicle, said consumer shall
make reasonable effort in accordance with the terms and conditions
thereof to obtain such relief or repairs before seeking enforcement
of rights under this section. If the consumer, notwithstanding his
eligibility to do so, is unable to enforce rights under said section
seven N.50 or under such express warranty and the dealer provides
such relief or, in accordance with the provisions of this section,
repurchases such used motor vehicle, the dealer shall be subrogated
to the rights of such consumer against such manufacturer under the
provisions of said section seven N.50, such express warranty and
otherwise in accordance with applicable law, and may enforce the
same in his name in the superior court or district court department.
Such manufacturer shall hold the dealer harmless from and against
all damages, liabilities, losses and reasonable expenses of suit,
including reasonable attorneys' fees arising out of or incurred by
the dealer by its compliance with the provisions of this section if
such manufacturer, having been notified in writing by the dealer
that such rights have been asserted by a consumer, fails to resolve
the same at its own expense in or within seven business days.
(11) The licensing
authorities responsible pursuant to section fifty-nine of chapter
one hundred and forty for licensing used motor vehicle dealers shall
distribute copies of this section to each dealer licensed at any
time a license is granted or renewed.
(12) The provisions of this
section shall not apply to the sale of a leased vehicle by a lessor
to the lessee of said vehicle, a family member or employee of said
lessee or to the sale of a used motor vehicle by an employer to his
employee.
(13) Any action brought
pursuant to this section shall be commenced within two years of the
date of original delivery of the used motor vehicle to the consumer.
90:7N.50 Defective or
malfunctioning new motor vehicles.
Sale and repair or replacement.
(1) For purposes of this
section the following terms shall have the following meanings:
"Business day", any day
during which the service departments of authorized dealers of the
manufacturer of the motor vehicle are normally open for business.
"Consumer", a buyer or
lessee, other than for purposes of resale, of a motor vehicle, any
person to whom such motor vehicle is transferred during the duration
of any express or implied warranty applicable to such motor vehicle,
and any other person entitled by the terms of such warranty to
enforce its obligations.
"Dealer", any class one
seller of motor vehicles as defined in section fifty-eight of
chapter one hundred and forty.
"Lessee", any person who
acquires the right to possession of and use of a motor vehicle under
a lease agreement for a term of not less than one year.
"Manufacturer", any person who is engaged in the business
of manufacturing motor vehicles, or, in the case of motor vehicles
not manufactured in the United States, any person who is engaged in
the business of importing motor vehicles.
"Motor vehicle" or
"vehicle", any motor vehicle as defined in section one
sold, leased or replaced by a dealer or manufacturer after the
effective date of this section, except that it shall not include
auto homes, vehicles built primarily for off-road use or any vehicle
used primarily for business purposes.
"Nonconformity", any
specific or generic defect or malfunction, or any concurrent
combination of such defects or malfunctions that substantially
impairs the use, market value or safety of a motor vehicle.
"Term of protection", one
year or fifteen thousand miles of use from the date of original
delivery of a new motor vehicle, whichever comes first; or, in the
case of a replacement vehicle provided by a manufacturer to a
consumer under this section, one year or fifteen thousand miles from
the date of delivery to the consumer of said replacement vehicle,
whichever comes first.
(2) If a motor vehicle does
not conform to any applicable express or implied warranty, and the
consumer reports the nonconformity to the manufacturer of the
vehicle, its agent or its authorized dealer during the term of
protection, the manufacturer, its agent or its authorized dealer
shall effect such repairs as are necessary to conform the vehicle to
such warranty.
If the manufacturer, its agent or
authorized dealer does not conform the motor vehicle to any such
applicable express or implied warranty by curing any nonconformity
after a reasonable number of attempts, the manufacturer shall accept
return of the vehicle from the consumer. In instances in which a
vehicle is sold and subsequently returned, the manufacturer shall
refund the full contract price of the vehicle including all credits
and allowances for any trade-in vehicle, less any cash award that
was made by the manufacturer in an attempt to resolve the dispute
and was accepted by the consumer, and a reasonable allowance for
use, or shall offer to replace the vehicle. In instances in which a
vehicle is leased and subsequently returned, the manufacturer shall
refund all payments made by the consumer to the manufacturer under
the terms of the lease agreement less any cash award that was made
by the manufacturer in an attempt to resolve the dispute and was
accepted by the consumer, and a reasonable allowance for use, or
shall offer to replace the vehicle. The consumer shall have an
unqualified right to reject a manufacturer's offer of replacement
and demand a refund. In instances in which a vehicle is replaced by
a manufacturer under the provisions of this section, said
manufacturer shall reimburse the consumer for any fees for the
transfer of registration or any sales tax incurred by the consumer
as a result of such replacement. In instances in which a leased
vehicle is replaced by a manufacturer under the terms of this
section, an identical model vehicle shall be provided to the
consumer for the remaining term of the original lease agreement. In
instances in which a vehicle which was financed by the manufacturer
or its subsidiary or agent is replaced under the provisions of this
section, said manufacturer, subsidiary or agent shall not require
the consumer to enter into any refinancing agreement which would
create any financial obligations upon such consumer beyond those
implied by the original financing agreement. In instances in which a
vehicle which was leased from a dealer or manufacturer is replaced
under the provisions of this section, said dealer or manufacturer
shall not require the consumer to enter into any lease agreement
which would create any financial obligations upon such consumer
beyond those implied by the original lease agreement. In instances
in which a refund is tendered under the provisions of this section,
the manufacturer shall also reimburse the consumer for incidental
costs including sales tax, registration fee, finance charges and any
cost of options added by an authorized dealer. Whenever a vehicle is
replaced a refund is given under the provisions of this section, in
instances in which towing services and rental vehicles were not made
available at no cost to the consumer, the manufacturer shall also
reimburse the consumer for towing and reasonable rental costs that
were a direct result of vehicle nonconformity. Refunds shall be made
to the consumer and lien holder, if any, as their interests may
appear. A reasonable allowance for use for all motor vehicles other
than motorcycles shall be obtained by multiplying the total contract
price of the vehicle, or in the case of a leased vehicle the total
amount of payments made by the consumer to the manufacturer under
the terms of the lease agreement, by a fraction having as its
denominator one hundred thousand and having as its numerator the
number of miles that vehicle traveled prior to the manufacturer's
acceptance of its return. A reasonable allowance for use for
motorcycles shall be obtained by multiplying the total contract
price of the motorcycle by a fraction having as its denominator
twenty-five thousand and having as its numerator the number of miles
that the vehicle traveled prior to the manufacturer's acceptance of
its return.
It shall be an affirmative defense
to any claim under this section:
(i) that an alleged
nonconformity does not substantially impair the use, market value or
safety of the vehicle;
(ii) that a nonconformity is
the result of owner negligence, damage caused by accident,
vandalism, or attempt to repair the vehicle by a person other than
the manufacturer, its agent or authorized dealer; or
(iii) that a nonconformity
is the result of any attempt substantially to modify the vehicle
which was not authorized by the manufacturer.
A consumer shall have the option of
retaining the use of any vehicle returned under the provisions of
this section until such time as said consumer has been tendered a
full refund or a replacement that is acceptable to the consumer. The
use of any vehicle retained by a consumer after its return to a
manufacturer under the provisions of this section, shall, in
instances in which a refund is tendered, be reflected in the above
mentioned reasonable allowance for use.
(4) A reasonable number of
attempts shall be deemed to have been undertaken to conform a motor
vehicle to any applicable express or implied warranties if
(a) the same nonconformity
has been subject to repair three or more times by the manufacturer
or its agents or authorized dealers within the term of protection,
but such nonconformity continues to exist or such nonconformity has
recurred within the term of protection, or
(b) the vehicle is out of
service by reason of repair of any nonconformity for a cumulative
total of fifteen or more business days during the term of
protection; provided, however, that the manufacturer shall be
afforded one additional opportunity, not to exceed seven business
days, to cure any nonconformity arising during the term of
protection, notwithstanding the fact that such additional
opportunity to cure commences after the term of protection. Such
additional opportunity to cure shall commence on the day the
manufacturer first knows or should have known that the limits
specified in clause (a) or (b) have been met or exceeded. The term
of protection, said fifteen business day period and said additional
opportunity to cure shall be extended by any period of time during
which repair services are not available to the consumer as a direct
result of a war, invasion, fire, flood or other natural disaster.
The term of protection, said fifteen business day period and said
additional opportunity to cure shall also be extended by that period
of time during which repair services are not available as a direct
result of a strike; provided, however, that the manufacturer, its
agent, or authorized dealer provides or makes provision for the free
use of a vehicle to any consumer whose vehicle is out of service by
reason of repair during a strike. The burden shall be on the
manufacturer to show that any event claimed as a reason for an
extension under the provisions of this paragraph was the direct
cause for the failure of the manufacturer, its agent or authorized
dealer to cure any nonconformity during the time of said event.
Extensions for concurrent events shall not be cumulative.
(5) Nothing in this section
shall be construed as imposing any liability on an authorized dealer
or creating any cause of action by a consumer against a dealer under
the provisions of this section.
Nothing in this section shall be
construed to limit the rights or remedies which are otherwise
available to a consumer or manufacturer under any other applicable
provision of law.
Nothing in this section shall be
construed as imposing any liability on a dealer or creating a cause
of action by a manufacturer against its authorized dealer under this
section except with respect to
(i) failure by an authorized
dealer to properly effect preparation, installation of options or
repairs when such preparation, installation of options or repairs
would have prevented the occurrence of or cured a nonconformity;
(ii) express warranties
offered by an authorized dealer which exceed the provisions of the
manufacturer's express warranties; and
(iii) that portion of the
cost of reimbursing a consumer for dealer-added options which
represents the dealer profit from the addition of such options. The
manufacturer shall reimburse its authorized dealer for all
incidental and consequential damages, including attorney's fees,
incurred by such dealer as a direct result of any legal action
brought by a consumer under this section.
No consumer shall be required by
any manufacturer, its agent or its authorized dealer to give notice
directly to a manufacturer of the existence of any nonconformity
before resorting to state-certified, new car arbitration.
No motor vehicle that is returned
to the manufacturer under the provisions of this section shall be
resold in the commonwealth without clear and conspicuous written
disclosure of the fact that it was so returned prior to resale of
the vehicle. The attorney general shall prescribe the exact form and
content of any such disclosure statement.
(6) All manufacturers shall
submit to state-certified, new car arbitration, if such arbitration
is requested by the consumer within eighteen months from the date of
original delivery to such consumer of a new motor vehicle.
State-certified, new car arbitration shall be performed by a
professional arbitrator or arbitration firm appointed by the
secretary of consumer affairs and business regulation and operating
in accordance with the regulations promulgated pursuant to this
section, and shall result in a written finding of whether the motor
vehicle in dispute meets the standards set forth by this section for
vehicles that are required to be replaced or refunded. Said finding
shall be issued within forty-five days of receipt by said secretary
of a request by a consumer for state-certified arbitration under
this section. Said secretary shall promulgate rules and regulations
governing the proceedings of state-certified, new car arbitration
which shall promote their fairness and efficiency. Such rules and
regulations shall include, but not be limited to, a requirement of
the personal objectivity of each arbitrator in the results of the
dispute he will hear, and the protection of the right of each party
to present its case and to be in attendance during any presentation
made by the other party. All findings of fact issuing from a
state-certified, new car arbitration shall be taken as prima facie
evidence of whether the standards set forth in this section for
vehicles required to be refunded or replaced have been met in any
subsequent action brought by either party ensuing from the matter
considered in said arbitration.
If a motor vehicle is found by
state-certified, new car arbitration to have met the standards set
forth by this section for vehicles required to be replaced or
refunded, and if the manufacturer of said motor vehicle is found to
have failed to provide said refund or replacement as required, such
manufacturer shall, within twenty-one days from the issuance of such
finding, deliver such refund or replacement, including the
incidental and other costs set forth in subsection (3), or appeal
the finding in superior court. No appeal by a manufacturer shall be
heard unless the petition for such appeal is filed with the clerk of
the superior court within twenty-one days of issuance of the finding
of the state-certified arbitration and is accompanied by a bond in a
principal sum equal to the money award made by the state-certified
arbitrator plus two thousand five hundred dollars for anticipated
attorneys' fees, secured by cash or its equivalent, payable to the
consumer.
The liability of the surety of any
bond filed pursuant to this section shall be limited to the
indemnification of the consumer in the action. Such bond shall not
limit or impair any right of recovery otherwise available pursuant
to law, nor shall the amount of the bond be relevant in determining
the amount of recovery to which the consumer shall be entitled. In
the event that any state-certified arbitration, resulting in an
award of a refund or replacement, is upheld by the court, recovery
by the consumer shall include continuing damages in the amount of
twenty-five dollars per day for each day, subsequent to the day the
motor vehicle was returned to the manufacturer pursuant to
subsection three, that said vehicle was out of use as a direct
result of any nonconformity not issuing from owner negligence,
accident, vandalism, or any attempt to repair or substantially
modify the vehicle by a person other than the manufacturer, its
agent or authorized dealer; provided, however, that the manufacturer
did not make a comparable vehicle available to the consumer free of
charge. In addition to any other recovery, any prevailing consumer
shall be awarded reasonable attorneys' fees and costs. If the court
finds that the manufacturer did not have any reasonable basis for
its appeal or that the appeal was frivolous, the court shall double
the amount of the total award made to the consumer. Any consumer
dissatisfied with any finding of state-certified, new car
arbitration shall have the right to file a claim pursuant to chapter
ninety-three A.
(6A) A clear and conspicuous
listing of the rights of the consumer under this section shall be
affixed by a sticker to a window of each new motor vehicle offered
for sale or lease in the commonwealth. An enumeration of these
rights shall also be provided along with ownership manual materials.
The form and manner of these notices shall be prescribed by the
secretary of consumer affairs and business regulations.
(7) Failure to comply with
any of the provisions of this section shall constitute an unfair or
deceptive act under the provisions of chapter ninety-three A. The
failure of a manufacturer either to abide by the decision of a
state-certified arbitration or to file a timely appeal shall entitle
any prevailing consumer to an award of no less than two times the
actual damages, unless said manufacturer can prove that such failure
was beyond his control. For the purposes of said chapter
ninety-three A, the timely delivery by a manufacturer of a refund or
acceptable replacement, pursuant to a finding by state-certified
arbitration, shall constitute the granting of relief upon demand.
The secretary of consumer affairs
and business regulation shall inform the office of the attorney
general of any method, act or practice of which she is aware that is
deemed by her to be a violation of any provision of this section.
(8) Whoever, within
twenty-one days of any finding in favor of the consumer of the
state-certified, new car arbitration, fails to appeal such finding
and does not deliver a refund or replacement vehicle or notify the
consumer of the estimated delivery date of the replacement vehicle,
shall be punished by a fine of five thousand dollars per day until
the delivery of such refund or replacement. The estimated delivery
date shall not exceed sixty days from the date the manufacturer
notifies the consumer that a delivery will be made. Said fine shall
not exceed fifty thousand dollars for each such violation. The
amount of said fine shall begin to accumulate on the twenty-second
day following the arbitration decision. If eighty-one days has
elapsed from the issuance of a finding in favor of the consumer of
the state-certified, new car arbitration and no appeal has been
taken and no award delivered and no fine paid, the attorney general
shall initiate proceedings against said manufacturer for failure to
pay said fine. The proceedings initiated pursuant to the provisions
of this section shall be commenced in superior court department of
the trial court.
In addition to the remedies
hereinbefore provided, the attorney general may bring an action on
behalf of the commonwealth to restrain further violation of this
section, to enforce any provision, and for such other relief as may
be appropriate.
