Lemon Law - Montana
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.
For purposes of this part, the
following definitions apply:
(1) "Collateral
charge" means all governmental charges, including but not
limited to sales tax, property tax, license and registration fees,
and fees in lieu of tax.
(2) "Consumer"
means the purchaser, other than for purposes of resale, of a motor
vehicle that has not been brought into nonconformity as the result
of abuse, neglect, or unauthorized modifications or alterations by
the purchaser, any person to whom the motor vehicle is transferred
during the duration of an express warranty applicable to the motor
vehicle, or any other person entitled by the terms of the warranty
to the benefits of its provisions.
(3) "Incidental
damage" means incidental and consequential damage as defined in
30-2-715.
(4) "Manufacturer"
has the meaning applied to that word in 61-4-201.
(5) "Motor
vehicle" means a vehicle, including the nonresidential portion
of a motor home as defined in 61-1-130, propelled by its own power,
designed primarily to transport persons or property upon the public
highways, and sold in this state. The term does not include a truck
with 10,000 pounds or more gross vehicle weight rating or a
motorcycle as defined in 61-1-105. Motor vehicle does not include
components, systems, fixtures, appliances, furnishings, accessories,
and features that are designed, used, and maintained primarily for
residential purposes.
(6) "Reasonable
allowance for use" is an amount directly attributable to use of
the motor vehicle by the consumer and any previous consumers prior
to the first written notice of the nonconformity to the manufacturer
or its agent and during any subsequent period when the vehicle is
not out of service because of nonconformity. The reasonable
allowance for use shall be computed by multiplying the total
contract price of the vehicle by a fraction having as its
denominator 100,000 and having as its numerator the number of miles
that the vehicle traveled prior to the manufacturer's acceptance of
its return.
(7) "Warranty
period" means the period ending 2 years after the date of the
original delivery to the consumer of a new motor vehicle or during
the first 18,000 miles of operation, whichever is earlier.
61-4-502. Notice -- warranty
enforceable after warranty period
(1) If a consumer notifies
in writing the manufacturer or its agent during the warranty period
that a new motor vehicle does not conform to all applicable express
warranties, the repairs necessary to conform the new motor vehicle
to the express warranties shall be made by or at the expense of the
warrantor, regardless of the expiration of the warranty period after
notification of nonconformity is given by the consumer.
(2) The warranty period of
an express warranty is extended to equal the time that repair
services are not available because of war or invasion or because of
strike or fire, flood, or other natural disaster. The presumption
provided herein may not apply against a manufacturer who has not
received prior written notification from or on behalf of the
consumer and has not had an opportunity to cure the alleged defect.
(3) The manufacturer must
clearly and conspicuously disclose to the consumer in the warranty
or owner's manual that written notification of a nonconformity is
required before a consumer may be eligible for a refund or
replacement of the vehicle. The manufacturer must include with the
warranty or owner's manual the name and address where the written
notification must be sent.
61-4-503. Replacement for
nonconformity to warranty.
(1) If after a reasonable
number of attempts the manufacturer or its agent or authorized
dealer is unable, during the warranty period, to conform the new
motor vehicle to any applicable express warranty by repairing or
correcting any defect or condition that substantially impairs the
use and market value or safety of the motor vehicle to the consumer,
the manufacturer shall replace it with a new motor vehicle of the
same model and style and of equal value, unless for reasons of lack
of availability such replacement is impossible, in which case the
manufacturer shall replace it with a vehicle of comparable market
value.
(2) As an alternative to
replacement, the manufacturer may accept return of the new motor
vehicle from the consumer upon refund to him of the full purchase
price, plus reasonable collateral charges and incidental damages,
less a reasonable allowance for the consumer's use of the motor
vehicle. The refund shall be paid to the consumer and to a lien
holder, if any, in proportion to their interests.
61-4-504. Reasonable number of
attempts -- presumption.
A reasonable number of attempts to
conform a new motor vehicle to the applicable express warranties is
presumed to have been made for purposes of 61-4-503(1) if:
(1) the same nonconformity
has been subject to repair four or more times by the manufacturer or
its agent or authorized dealer during the warranty period but the
nonconformity continues to exist; or
(2) the vehicle is out of
service because of nonconformity for a cumulative total of 30 or
more business days during the warranty period after notification of
the manufacturer, agent, or dealer.
61-4-505. Dealer exemption --
liability to manufacturer.
(1) Nothing in this part
imposes any liability on a dealer or creates a cause of action by a
consumer against a dealer under 61-4-503.
(2) A dealer is not liable
to a manufacturer for any refunds or vehicle replacements in the
absence of evidence indicating that repairs made by the dealer were
carried out in a manner inconsistent with the manufacturer's
instructions.
61-4-506. Provisions
nonexclusive.
(1) The provisions of this
part do not limit the rights or remedies available to a consumer
under any other law.
(2) All express warranties
arising from the sale of a new motor vehicle are subject to the
provisions of Title 30, chapter 2, part 3.
(3) It is an affirmative
defense to a claim brought under this part that an alleged
nonconformity does not substantially impair the use, market value,
or safety of the vehicle or that the nonconformity is the result of
abuse, neglect, or unauthorized modification or alteration of a
motor vehicle by the consumer.
61-4-507. Exhaustion of remedies
under federal law.
The provisions of 61-4-503 are not
applicable against a manufacturer who has established an informal
dispute settlement procedure certified by the department of commerce
to be in substantial compliance with the provisions of Title 16,
Code of Federal Regulations, part 703, as those provisions read on
October 1, 1983, unless the consumer has first resorted to that
procedure without satisfaction.
61-4-511. Manufacturer's dispute
settlement procedure.
(1) A manufacturer who has
established an informal dispute settlement procedure under the
provisions of Title 16, Code of Federal Regulations, part 703 (16
CFR, part 703), as those provisions read on October 1, 1983, shall
submit a copy of the procedure to the department of commerce. The
department of commerce shall issue a certificate of approval to a
manufacturer whose procedure complies in all respects with such
federal regulations and subsection (2). The department of commerce
shall report to the department of justice all manufacturer's
procedures certified. The department of commerce may issue subpoenas
requiring the attendance of witnesses and the production of records,
documents, or other evidence necessary to it in an investigation
related to the certification of a manufacturer's informal dispute
settlement procedure.
(2) A manufacturer's
informal dispute settlement procedure must afford the consumer or
his representative an opportunity to appear and present evidence in
Montana at a location reasonably convenient to the consumer and,
further, may not include any practices that:
(a) delay a decision in any
dispute beyond 60 days after the date on which the consumer
initially resorts to the dispute settlement procedure;
(b) delay performance of
remedies awarded in a settlement beyond 10 days after a decision,
except that a manufacturer may have 30 days following the date of
decision to replace a motor vehicle or make refund to the consumer
as provided in 61-4-503;
(c) require the consumer to
make the vehicle available for inspection by a manufacturer's
representative more than once;
(d) fail to consider in
decisions any remedies provided by this part; or
(e) require the consumer to
take any action or assume any obligation not specifically authorized
under the federal regulations referred to in subsection (1).
61-4-512. Annual audit
(1) A manufacturer
establishing an informal dispute resolution procedure shall file
with the department of commerce a copy of the annual audit required
under Title 16, Code of Federal Regulations, part 703 (16 CFR, part
703), as those provisions read on October 1, 1983, along with any
additional information the department of commerce may require,
including the number of refunds and replacements made by the
manufacturer during the period audited.
(2) The department of
commerce may, after notice and hearing as provided in Title 2,
chapter 4, suspend or revoke the certification of a manufacturer's
informal dispute resolution procedure upon a finding that the
procedure is being used to create hardship to consumers. The
department of commerce shall notify the department of justice of any
revocation or suspension of a certification. The department of
justice may consider the revocation or suspension in licensing
manufacturers under Title 61, chapter 4, part 2.
61-4-515. Arbitration procedure.
(1) The department of
commerce shall provide an independent forum and arbitration
procedure for the settlement of disputes between consumers and
manufacturers of motor vehicles that do not conform to all
applicable warranties under the provisions of this part. The
procedure must conform to Title 27, chapter 5. All arbitration shall
take place in Montana at a place reasonably convenient to the
consumer.
(2) Except as provided in
61-4-520, a consumer owning a motor vehicle that fails to conform to
all applicable warranties may bring a grievance before an
arbitration panel only if the manufacturer of the motor vehicle has
not established an informal dispute settlement procedure which has
been certified by the department of commerce under 61-4-511.
61-4-516. Composition of
arbitration panel.
An arbitration panel hearing a
grievance under this part must consist of three members. One member
must be chosen by the consumer, one member must be chosen by the
manufacturer, and one member must be chosen by mutual agreement of
the parties. The department of commerce may maintain a list of
persons willing to serve on panels from which the third member may
be chosen.
61-4-517. Implementation of
arbitration.
(1) A consumer may initiate
a request for arbitration by filing a notice with the department of
commerce. The consumer shall file, on a form prescribed by the
department of commerce, any information considered relevant to the
resolution of the dispute and shall return the form, along with a
$50 filing fee, within 5 days after receiving it. The complaint form
must offer the consumer the choice of presenting any subsequent
testimony orally or in writing, but not both.
(2) The department of
commerce shall determine whether the complaint alleges the violation
of any applicable warranty under this part. If the department of
commerce determines that a complaint does not allege a warranty
violation, it must refund the filing fee.
(3) Upon acceptance of a
complaint, the department of commerce shall notify the manufacturer
of the filing of a request for arbitration and shall obtain from the
manufacturer, on a form prescribed by the department of commerce,
any information considered relevant to the resolution of the
dispute. The manufacturer must return the form within 15 days of
receipt, with a filing fee of $250.
(4) Fees collected under
this section shall be deposited in a special revenue fund for the
use of the department of commerce in administering this part.
(5) The manufacturer's fee
provided in subsection (3) is due only if the department of commerce
arbitration procedures are utilized.
61-4-518. Arbitration
(1) The department of
commerce shall investigate, gather, and organize all information
necessary for a fair and timely decision in each dispute. The
department of commerce may, on behalf of the arbitration panel,
issue subpoenas to compel the attendance of witnesses and the
production of documents, papers, and records relevant to the
dispute.
(2) If requested by the
panel, the department of commerce may forward a copy of all written
testimony and documentary evidence to an independent technical
expert certified by the national institute of automotive excellence.
The expert may review the material and be available to advise and
consult with the panel. The expert may sit as a nonvoting member of
the panel whenever oral testimony is presented. The department of
justice may suggest an expert at the request of the department of
commerce.
61-4-519. Action by arbitration
panel
(1) The arbitration panel
shall, as expeditiously as possible, but not later than 60 days
after the department of commerce has accepted a complaint, render a
fair decision based on the information gathered and disclose its
findings and its reasoning to the parties.
(2) The decision shall
provide appropriate remedies, including but not limited to:
(a) repair of the vehicle;
(b) replacement of the
vehicle with an identical vehicle or a comparable vehicle acceptable
to the consumer;
(c) refund as provided in
61-4-503(2);
(d) any other remedies
available under the applicable warranties or 15 U.S.C. 2301 through
2312, as in effect on October 1, 1983; or
(e) reimbursement of
expenses and costs to the prevailing party.
(3) The decision shall
specify a date for performance and completion of all awarded
remedies. The department of commerce shall contact the prevailing
party within 10 working days after the date for performance to
determine whether performance has occurred. The parties shall act in
good faith in abiding by any decision. In addition, if the decision
is not accepted, the parties shall follow the provisions of Title
27, chapter 5. If it is determined by the court that the appellant
has acted without good cause in bringing an appeal of an award, the
court, in its discretion, may grant to the respondent his costs and
reasonable attorney fees.
61-4-520. Nonconforming
procedure.
A consumer injured by the operation
of any procedure that does not conform with procedures established
by a manufacturer pursuant to 61-4-511 and the provisions of Title
16, Code of Federal Regulations, part 703, as in effect on October
1, 1983, may appeal any decision rendered as the result of such a
procedure by requesting arbitration de novo of the dispute by a
department of commerce panel. Filing procedures and fees for appeals
must be the same as those required in 61-4-515 through 61-4-517. The
findings of the manufacturer's informal dispute settlement procedure
are admissible in evidence at the department of commerce arbitration
panel hearing and in any civil action arising out of any warranty
obligation or matter related to the dispute.
61-4-525. Notice on resale of
replaced vehicle.
A motor vehicle which is returned
to the manufacturer and which requires replacement or refund may not
be sold in the state without a clear and conspicuous written
disclosure of the fact that the vehicle was returned. The department
of justice may prescribe by rule the form and content of the
disclosure statement and a procedure by which the disclosure may be
removed upon a determination that the vehicle is no longer
defective.
61-4-526. Records of disputes.
The department of commerce shall
maintain records of each dispute as it determines, including an
index of disputes by brand name and model. The department of
commerce shall, at intervals of no more than 6 months, compile and
maintain statistics indicating the record of compliance with
arbitration decisions and the number of refunds or replacements
awarded. A copy of the statistical summary must be filed with the
department of justice and must be considered by it in determining
the issuance of any manufacturer license required under Title 61,
chapter 4, part 2.
