Lemon Law - South Dakota
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.
Terms used in this chapter mean:
(1) "Consumer,"
the purchaser, other than for purposes of resale, of a new or
previously untitled motor vehicle used in substantial part for
personal, family, or household purposes, and any other person
entitled by the terms of such warranty to enforce the obligations of
the warranty;
(2) "Express
warranty," a written warranty, so labeled, issued by the
manufacturer of a new motor vehicle, including any terms or
conditions precedent to the enforcement of obligations under that
warranty;
(3) "Lemon law rights
period," the period ending one year after the date of the
original delivery of a motor vehicle to a consumer or the first
twelve thousand miles of operation, whichever first occurs;
(4)
"Manufacturer," the person, firm, or corporation engaged
in the business of manufacturing, importing, or distributing motor
vehicles to be made available to a motor vehicle dealer for retail
sale;
(5) "Motor
vehicle," every vehicle intended primarily for use and
operation on the public highways which is self-propelled. The term
does not apply to any motor home or to any motor vehicle having a
manufacturer's gross vehicle weight rating of ten thousand pounds or
more;
(6) "Motor vehicle
dealer" or "authorized dealer," any person operating
under a dealer agreement from a manufacturer and licensed pursuant
to chapter 32-6B;
(7) "Nonconforming
condition," any condition of a motor vehicle which is not in
conformity with the terms of any express warranty issued by the
manufacturer to a consumer and which significantly impairs the use,
value, or safety of the motor vehicle and occurs or arises solely in
the course of the ordinary use of the motor vehicle, and which does
not arise or occur as a result of abuse, neglect, modification, or
alteration of the motor vehicle not authorized by the manufacturer,
nor from any accident or other damage to the motor vehicle which
occurs or arises after the motor vehicle was delivered by an
authorized dealer to the consumer;
(8) "Notice of a
nonconforming condition," a written statement delivered to the
manufacturer and which describes the motor vehicle, the
nonconforming condition, and all previous attempts to correct such
nonconforming condition by identifying the person who made the
attempt and the time the attempt was made.
32-6D-2 Notice of nonconforming
condition.
Timeliness -- Obligation to repair.
If a new motor vehicle does not
conform to any applicable express warranty and the consumer delivers
the motor vehicle to the manufacturer or its authorized dealer and
gives notice of the nonconforming condition during the lemon law
rights period, the manufacturer of the motor vehicle shall make the
necessary repairs to the motor vehicle to remedy any such
nonconforming condition. The repairs are required even after the
expiration of the lemon law rights period if notice of the
nonconforming condition was first given during the lemon law rights
period. However, the manufacturer's obligation to repair the
nonconforming condition does not extend beyond the period of
twenty-four months following delivery of the vehicle or twenty-four
thousand miles, whichever occurs first.
32-6D-3 Replacement of
un-repairable vehicle -- Refund.
If, after reasonable attempts, the
manufacturer or its authorized dealer is unable to conform the motor
vehicle to any express warranty by repairing or correcting a
nonconforming condition of the motor vehicle which first occurred
during the lemon law rights period, the manufacturer shall, at the
option of the consumer, replace the motor vehicle with a comparable
new motor vehicle or shall accept return of the vehicle from the
consumer and refund to the consumer the following:
(1) The full contract price
including charges for undercoating, dealer preparation, and
transportation charges, and installed options, plus the
nonrefundable portions of extended warranties and service contracts;
(2) All collateral charges,
including excise tax, license, and registration fees and similar
government charges;
(3) All finance charges
incurred by the consumer after he first reported the nonconformity
to the manufacturer or its authorized dealer; and
(4) Any incidental damages
which shall include the reasonable cost of alternative
transportation during the period that the consumer is without the
use of the motor vehicle because of the nonconforming condition.
32-6D-4 Allowance for use of
vehicle offset against monetary recovery.
Refunds shall be made to the
consumer and any lien holders, as their interests may appear. There
shall be offset against any monetary recovery of the consumer a
reasonable allowance for the consumer's use of the vehicle. A
reasonable allowance for use is that amount directly attributable to
use by the consumer before his first report of the nonconformity to
the manufacturer or authorized dealer and shall be calculated by
multiplying the full purchase price of the motor vehicle by a
fraction having as its denominator one hundred thousand and having
as its numerator the number of miles that the vehicle traveled
before the first report of nonconformity.
32-6D-5 Reasonable attempts to
correct nonconforming condition.
It is presumed that reasonable
attempts to correct a nonconforming condition have been allowed by
the consumer if, during the period of twenty-four months following
delivery of the vehicle or twenty-four thousand miles, whichever
first occurs, either of the following events occurred:
(1) The same nonconforming
condition was subject to repair attempts four or more times by the
manufacturer, or its authorized dealers, at least one of which
occurred during the lemon law rights period, plus a final attempt by
the manufacturer, and the same nonconforming condition continues to
exist; or
(2) The motor vehicle was
out of service and in the custody of the manufacturer or an
authorized dealer due to repair attempts including the final repair
attempt, one of which occurred during the lemon law rights period,
for a cumulative total of thirty calendar days, unless the repair
could not be performed because of conditions beyond the control of
the manufacturer or authorized dealers, such as war, invasion,
strike, fire, flood, or other natural disaster.
32-6D-6 Civil action against
manufacturer.
A consumer sustaining damages as a
proximate consequence of the failure by a manufacturer to perform
its obligations imposed under this chapter may bring a civil action
against the manufacturer to enforce the provisions of this chapter.
Prior to the commencement of any such proceeding a consumer shall
give notice of a nonconforming condition by certified mail to the
manufacturer and demand correction or repair of the nonconforming
condition. If at the time the notice of a nonconforming condition is
given to the manufacturer, a presumption has arisen that reasonable
attempts to correct a nonconforming condition have been allowed, the
manufacturer shall be given a final opportunity to cure the
nonconforming condition. The manufacturer shall within seven
calendar days of receiving the written notice of nonconforming
condition notify the consumer of a reasonably accessible repair
facility. After delivery of the new vehicle to the authorized repair
facility by the consumer, the manufacturer shall attempt to correct
the nonconforming condition and conform the vehicle to the express
warranty within a period not to exceed fourteen calendar days. If a
manufacturer has established an informal dispute settlement
procedure conducted within the state which is in compliance with
federal rules and regulations, a consumer shall first exhaust any
remedy afforded to the consumer under the informal dispute procedure
of the manufacturer before a cause of action may be instituted under
the provisions of this chapter.
32-6D-7 Affirmative defenses to
claim against manufacturer.
It is an affirmative defense to any
claim against the manufacturer under this chapter that:
(1) An alleged nonconforming
condition does not significantly impair the use, market value, or
safety of the motor vehicle; or
(2) A nonconforming
condition is a result of abuse, neglect, or any modification or
alteration of a motor vehicle by a consumer that is not authorized
by the manufacturer.
32-6D-8 Attorney fees.
If the manufacturer has breached
its obligations imposed under this chapter, the consumer may
recover, in addition to the remedy provided under 32-6D-2 to
32-6D-5, inclusive, an additional award for reasonable attorney
fees.
32-6D-9 Resale of returned
vehicle.
If a motor vehicle has been
returned to the manufacturer under the provisions of this chapter or
a similar statute of another state, whether as the result of a legal
action or as the result of an informal dispute settlement
proceeding, it may not be resold in this state unless:
(1) The manufacturer
discloses in writing to the subsequent purchaser the fact that the
motor vehicle was returned under the provisions of this chapter and
the nature of the nonconformity to the vehicle warranty; and
(2) The manufacturer returns
the title of the motor vehicle to the Department of Revenue advising
of the return of the motor vehicle under provisions of this chapter
with an application for title in the name of the manufacturer. The
department shall brand the title issued to the manufacturer and all
subsequent titles to the motor vehicle with the following statement:
"This vehicle was returned to the manufacturer because it
did not conform to its warranty."
32-6D-10 Liability of dealer.
Nothing in this chapter imposes any
liability upon a motor vehicle dealer or authorized dealer or
creates a cause of action by a consumer against a motor vehicle
dealer or authorized dealer. No manufacturer may charge back or
require reimbursement by a motor vehicle dealer or authorized dealer
for any costs, including any refunds or vehicle replacements,
incurred by the manufacturer arising out of this chapter.
32-6D-11 Time limit for action.
Any action brought under this
chapter against the manufacturer shall be commenced within three
years following the date of original delivery of the motor vehicle
to the consumer.
