Lemon Law - Washington
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.
The legislature recognizes that a
new motor vehicle is a major consumer purchase and that a defective
motor vehicle is likely to create hardship for, or may cause injury
to, the consumer. The legislature further recognizes that good
cooperation and communication between a manufacturer and a new motor
vehicle dealer will considerably increase the likelihood that a new
motor vehicle will be repaired within a reasonable number of
attempts. It is the intent of the legislature to ensure that the
consumer is made aware of his or her rights under this chapter and
is not refused information, documents, or service that would
otherwise obstruct the exercise of his or her rights.
In enacting these comprehensive
measures, it is the intent of the legislature to create the proper
blend of private and public remedies necessary to enforce this
chapter, such that a manufacturer will be sufficiently induced to
take necessary steps to improve quality control at the time of
production or provide better warranty service for the new motor
vehicles that it sells in this state.
19.118.010
Motor vehicle manufacturers.
Express warranties; Service and
repair facilities.
Every manufacturer of motor
vehicles sold in this state and for which the manufacturer has made
an express warranty shall maintain in this state sufficient service
and repair facilities reasonably close to all areas in which its
motor vehicles are sold to carry out the terms of the warranties or
designate and authorize in this state as service and repair
facilities independent repair or service facilities reasonably close
to all areas in which its motor vehicles are sold to carry out the
terms of the warranties. As a means of complying with this section,
a manufacturer may enter into warranty service contracts with
independent service and repair facilities.
19.118.021
Definitions.
Unless the context clearly requires
otherwise, the definitions in this section apply throughout this
chapter.
(1) "Board" means
new motor vehicle arbitration board.
(2) "Collateral
charges" means any sales or lease related charges including but
not limited to sales tax, use tax, arbitration service fees, unused
license fees, unused registration fees, unused title fees, finance
charges, prepayment penalties, credit disability and credit life
insurance costs not otherwise refundable, any other insurance costs
prorated for time out of service, transportation charges, dealer
preparation charges, or any other charges for service contracts,
undercoating, rust proofing, or factory or dealer installed options.
(3) "Condition"
means a general problem that results from a defect or malfunction of
one or more parts, or their improper installation by the
manufacturer, its agents, or the new motor vehicle dealer.
(4) "Consumer"
means any person who has entered into an agreement or contract for
the transfer, lease, or purchase of a new motor vehicle, other than
for purposes of resale or sublease, during the duration of the
warranty period defined under this section.
(5) "Court" means
the superior court in the county where the consumer resides, except
if the consumer does not reside in this state, then the superior
court in the county where an arbitration hearing or determination
was conducted or made pursuant to this chapter.
(6) "Incidental
costs" means any reasonable expenses incurred by the consumer
in connection with the repair of the new motor vehicle, including
any towing charges and the costs of obtaining alternative
transportation.
(7) "Manufacturer"
means any person engaged in the business of constructing or
assembling new motor vehicles or engaged in the business of
importing new motor vehicles into the United States for the purpose
of selling or distributing new motor vehicles to new motor vehicle
dealers. "Manufacturer" does not include any person
engaged in the business of set-up of motorcycles as an agent of a
new motor vehicle dealer if the person does not otherwise construct
or assemble motorcycles.
(8) "Motorcycle"
means any motorcycle as defined in RCW 46.04.330 which has an engine
displacement of at least seven hundred fifty cubic centimeters.
(9) "Motor home"
means a vehicular unit designed to provide temporary living quarters
for recreational, camping, or travel use, built on or permanently
attached to a self-propelled motor vehicle chassis or on a chassis
cab or van that is an integral part of the completed vehicle.
(10) "Motor home
manufacturer" means the first stage manufacturer, the component
manufacturer, and the final stage manufacturer.
(a) "First stage
manufacturer" means a person who manufactures incomplete new
motor vehicles such as chassis, chassis cabs, or vans, that are
directly warranted by the first stage manufacturer to the consumer,
and are completed by a final stage manufacturer into a motor home.
(b) "Component
manufacturer" means a person who manufactures components used
in the manufacture or assembly of a chassis, chassis cab, or van
that is completed into a motor home and whose components are
directly warranted by the component manufacturer to the consumer.
(c) "Final stage
manufacturer" means a person who assembles, installs, or
permanently affixes a body, cab, or equipment to an incomplete new
motor vehicle such as a chassis, chassis cab, or van provided by a
first stage manufacturer, to complete the vehicle into a motor home.
(11) "New motor
vehicle" means any new self-propelled vehicle, including a new
motorcycle, primarily designed for the transportation of persons or
property over the public highways that was originally purchased or
leased at retail from a new motor vehicle dealer or leasing company
in this state, and that was initially registered in this state or
for which a temporary motor vehicle license was issued pursuant to
RCW 46.16.460, but does not include vehicles purchased or leased by
a business as part of a fleet of ten or more vehicles at one time or
under a single purchase or lease agreement. If the motor vehicle is
a motor home, this chapter shall apply to the self-propelled vehicle
and chassis, but does not include those portions of the vehicle
designated, used, or maintained primarily as a mobile dwelling,
office, or commercial space. The term "new motor vehicle"
does not include trucks with nineteen thousand pounds or more gross
vehicle weight rating. The term "new motor vehicle"
includes a demonstrator or lease-purchase vehicle as long as a
manufacturer's warranty was issued as a condition of sale.
(12) "New motor vehicle
dealer" means a person who holds a dealer agreement with a
manufacturer for the sale of new motor vehicles, who is engaged in
the business of purchasing, selling, servicing, exchanging, or
dealing in new motor vehicles, and who is licensed or required to be
licensed as a vehicle dealer by the state of Washington.
(13)
"Nonconformity" means a defect, serious safety defect, or
condition that substantially impairs the use, value, or safety of a
new motor vehicle, but does not include a defect or condition that
is the result of abuse, neglect, or unauthorized modification or
alteration of the new motor vehicle.
(14) "Purchase
price" means the cash price of the new motor vehicle appearing
in the sales agreement or contract.
(a) "Purchase
price" in the instance of a lease means the actual written
capitalized cost disclosed to the consumer contained in the lease
agreement. If there is no disclosed capitalized cost in the lease
agreement the "purchase price" is the manufacturer's
suggested retail price including manufacturer installed accessories
or items of optional equipment displayed on the manufacturer label,
required by 15 U.S.C. Sec. 1232.
(b) "Purchase
price" in the instance of both a vehicle purchase or lease
agreement includes any allowance for a trade-in vehicle but does not
include any manufacturer-to-consumer rebate appearing in the
agreement or contract that the consumer received or that was applied
to reduce the purchase or lease cost. Where the consumer is a
subsequent transferee and the consumer selects repurchase of the
motor vehicle, "purchase price" means the consumer's
subsequent purchase price. Where the consumer is a subsequent
transferee and the consumer selects replacement of the motor
vehicle, "purchase price" means the original purchase
price.
(15) "Reasonable offset
for use" means the definition provided in RCW 19.118.041(1)(c)
for a new motor vehicle other than a new motorcycle. The reasonable
offset for use for a new motorcycle shall be computed by the number
of miles that the vehicle traveled before the manufacturer's
acceptance of the vehicle upon repurchase or replacement multiplied
by the purchase price, and divided by twenty-five thousand.
(16) "Reasonable number
of attempts" means the definition provided in RCW 19.118.041.
(17) "Replacement motor
vehicle" means a new motor vehicle that is identical or
reasonably equivalent to the motor vehicle to be replaced, as the
motor vehicle to be replaced existed at the time of original
purchase or lease, including any service contract, undercoating,
rustproofing, and factory or dealer installed options.
(18) "Serious safety
defect" means a life-threatening malfunction or nonconformity
that impedes the consumer's ability to control or operate the new
motor vehicle for ordinary use or reasonable intended purposes or
creates a risk of fire or explosion.
(19) "Subsequent
transferee" means a consumer who acquires a motor vehicle,
within the warranty period, as defined in this section, with an
applicable manufacturer's written warranty and where the vehicle
otherwise met the definition of a new motor vehicle at the time of
original retail sale or lease.
(20) "Substantially
impair" means to render the new motor vehicle unreliable, or
unsafe for ordinary use, or to diminish the resale value of the new
motor vehicle below the average resale value for comparable motor
vehicles.
(21) "Warranty"
means any implied warranty, any written warranty of the
manufacturer, or any affirmation of fact or promise made by the
manufacturer in connection with the sale of a new motor vehicle that
becomes part of the basis of the bargain. The term
"warranty" pertains to the obligations of the manufacturer
in relation to materials, workmanship, and fitness of a new motor
vehicle for ordinary use or reasonably intended purposes throughout
the duration of the warranty period as defined under this section.
(22) "Warranty
period" means the period ending two years after the date of the
original delivery to the consumer of a new motor vehicle, or the
first twenty-four thousand miles of operation, whichever occurs
first.
19.118.031
Manufacturers and new motor vehicle dealers.
Responsibilities to consumers;
Extension of warranty period.
(1) The manufacturer shall
publish an owner's manual and provide it to the new motor vehicle
dealer or leasing company. The owner's manual shall include a list
of the addresses and phone numbers for the manufacturer's customer
assistance division, or zone or regional offices. A manufacturer
shall provide to the new motor vehicle dealer or leasing company all
applicable manufacturer's written warranties. The dealer or leasing
company shall transfer to the consumer, at the time of original
retail sale or lease, the owner's manual and applicable written
warranties as provided by a manufacturer.
(2) At the time of purchase,
the new motor vehicle dealer shall provide the consumer with a
written statement that explains the consumer's rights under this
chapter. The written statement shall be prepared and supplied by the
attorney general and shall contain a toll-free number that the
consumer can contact for information regarding the procedures and
remedies under this chapter.
(3) For the purposes of this
chapter, if a new motor vehicle does not conform to the warranty and
the consumer reports the nonconformity during the term of the
warranty period or the period of coverage of the applicable
manufacturer's written warranty, whichever is less, to the
manufacturer, its agent, or the new motor vehicle dealer who sold
the new motor vehicle, the manufacturer, its agent, or the new motor
vehicle dealer shall make repairs as are necessary to conform the
vehicle to the warranty, regardless of whether such repairs are made
after the expiration of the warranty period. Any corrections or
attempted repairs undertaken by a new motor vehicle dealer under
this chapter shall be treated as warranty work and billed by the
dealer to the manufacturer in the same manner as other work under
the manufacturer's written warranty is billed. For purposes of this
subsection, the manufacturer's written warranty shall be at least
one year after the date of the original delivery to the consumer of
the vehicle or the first twelve thousand miles of operation,
whichever occurs first.
(4) Upon request from the
consumer, the manufacturer or new motor vehicle dealer shall provide
a copy of any report or computer reading compiled by the
manufacturer's field or zone representative regarding inspection,
diagnosis, or test-drive of the consumer's new motor vehicle, or
shall provide a copy of any technical service bulletin issued by the
manufacturer regarding the year and model of the consumer's new
motor vehicle as it pertains to any material, feature, component, or
the performance thereof.
(5) The new motor vehicle
dealer shall provide to the consumer each time the consumer's
vehicle is returned from being diagnosed or repaired under the
warranty, a fully itemized, legible statement or repair order
indicating any diagnosis made, and all work performed on the vehicle
including but not limited to, a general description of the problem
reported by the consumer or an identification of the defect or
condition, parts and labor, the date and the odometer reading when
the vehicle was submitted for repair, and the date when the vehicle
was made available to the consumer.
(6) No manufacturer, its
agent, or the new motor vehicle dealer may refuse to diagnose or
repair any nonconformity covered by the warranty for the purpose of
avoiding liability under this chapter.
(7) For purposes of this
chapter, consumers shall have the rights and remedies, including a
cause of action, against manufacturers as provided in this chapter.
(8) The warranty period and
thirty-day out-of-service period, and sixty-day out-of-service
period in the case of a motor home, shall be extended by any time
that repair services are not available to the consumer as a direct
result of a strike, war, invasion, fire, flood, or other natural
disaster.
19.118.041
Replacement or repurchase of nonconforming new motor vehicle.
Reasonable number of attempts;
Notice by consumer regarding motor home nonconformity; Liabilities
and rights of parties; Application of consumer protection act.
(1) If the manufacturer, its
agent, or the new motor vehicle dealer is unable to conform the new
motor vehicle to the warranty by repairing or correcting any
nonconformity after a reasonable number of attempts, the
manufacturer, within forty calendar days of a consumer's written
request to the manufacturer's corporate, dispute resolution, zone,
or regional office address shall, at the option of the consumer,
replace or repurchase the new motor vehicle.
(a) The replacement motor
vehicle shall be identical or reasonably equivalent to the motor
vehicle to be replaced as the motor vehicle to be replaced existed
at the time of original purchase or lease, including any service
contract, undercoating, rust proofing, and factory or dealer
installed options. Where the manufacturer supplies a replacement
motor vehicle, the manufacturer shall be responsible for sales tax,
license, registration fees, and refund of any incidental costs.
Compensation for a reasonable offset for use shall be paid by the
consumer to the manufacturer in the event that the consumer accepts
a replacement motor vehicle.
(b) When repurchasing the
new motor vehicle, the manufacturer shall refund to the consumer the
purchase price, all collateral charges, and incidental costs, less a
reasonable offset for use. When repurchasing the new motor vehicle,
in the instance of a lease, the manufacturer shall refund to the
consumer all payments made by the consumer under the lease including
but not limited to all lease payments, trade-in value or inception
payment, security deposit, all collateral charges and incidental
costs less a reasonable offset for use. The manufacturer shall make
such payment to the lessor and/or lien holder of record as necessary
to obtain clear title to the motor vehicle and upon the lessor's
and/or lien holder's receipt of that payment and payment by the
consumer of any late payment charges, the consumer shall be relieved
of any future obligation to the lessor and/or lien holder.
(c) The reasonable offset
for use shall be computed by multiplying the number of miles that
the vehicle traveled directly attributable to use by the consumer
times the purchase price, and dividing the product by one hundred
twenty thousand, except in the case of a motor home, in which event
it shall be divided by ninety thousand. However, the reasonable
offset for use calculation total for a motor home is subject to
modification by the board by decreasing or increasing the offset
total up to a maximum of one- third of the offset total. The board
may modify the offset total in those circumstances where the board
determines that the wear and tear on those portions of the motor
home designated, used, or maintained primarily as a mobile dwelling,
office, or commercial space are significantly greater or
significantly less than that which could be reasonably expected
based on the mileage attributable to the consumer's use of the motor
home. Where the consumer is a second or subsequent purchaser,
lessee, or transferee of the motor vehicle and the consumer selects
repurchase of the motor vehicle, "the number of miles that the
vehicle traveled" shall be calculated from the date of purchase
or lease by the consumer. Where the consumer is a second or
subsequent purchaser, lessee, or transferee of the motor vehicle and
the consumer selects replacement of the motor vehicle, "the
number of miles that the vehicle traveled" shall be calculated
from the original purchase, lease, or in-service date.
(2) Reasonable number of
attempts, except in the case of a new motor vehicle that is a motor
home acquired after June 30, 1998, shall be deemed to have been
undertaken by the manufacturer, its agent, or the new motor vehicle
dealer to conform the new motor vehicle to the warranty within the
warranty period, if:
(a) The same serious safety
defect has been subject to diagnosis or repair two or more times, at
least one of which is during the period of coverage of the
applicable manufacturer's written warranty, and the serious safety
defect continues to exist;
(b) the same nonconformity
has been subject to diagnosis or repair four or more times, at least
one of which is during the period of coverage of the applicable
manufacturer's written warranty, and the nonconformity continues to
exist; or
(c) the vehicle is out of
service by reason of diagnosis or repair of one or more
nonconformities for a cumulative total of thirty calendar days, at
least fifteen of them during the period of the applicable
manufacturer's written warranty. For purposes of this subsection,
the manufacturer's written warranty shall be at least one year after
the date of the original delivery to the consumer of the vehicle or
the first twelve thousand miles of operation, whichever occurs
first.
(3)
(a) In the case of a new
motor vehicle that is a motor home acquired after June 30, 1998, a
reasonable number of attempts shall be deemed to have been
undertaken by the motor home manufacturers, their respective agents,
or their respective new motor vehicle dealers to conform the new
motor vehicle to the warranty within the warranty period, if:
(i) The same serious safety
defect has been subject to diagnosis or repair one or more times
during the period of coverage of the applicable motor home
manufacturer's written warranty, plus a final attempt to repair the
vehicle as provided for in (b) of this subsection, and the serious
safety defect continues to exist;
(ii) the same nonconformity
has been subject to repair three or more times, at least one of
which is during the period of coverage of the applicable motor home
manufacturer's written warranty, plus a final attempt to repair the
vehicle as provided for in (b) of this subsection, and the
nonconformity continues to exist; or
(iii) the vehicle is out of
service by reason of diagnosis or repair of one or more
nonconformities for a cumulative total of sixty calendar days
aggregating all motor home manufacturer days out of service, and the
motor home manufacturers have had at least one opportunity to
coordinate and complete an inspection and any repairs of the
vehicle's nonconformities after receipt of notification from the
consumer as provided for in (c) of this subsection. For purposes of
this subsection, each motor home manufacturer's written warranty
must be at least one year after the date of the original delivery to
the consumer of the vehicle or the first twelve thousand miles of
operation, whichever occurs first.
(b) In the case of a new
motor vehicle that is a motor home, after one attempt has been made
to repair a serious safety defect, or after three attempts have been
made to repair the same nonconformity, the consumer shall give
written notification of the need to repair the nonconformity to each
of the motor home manufacturers at their respective corporate, zone,
or regional office addresses to allow the motor home manufacturers
to coordinate and complete a final attempt to cure the
nonconformity. The motor home manufacturers each have fifteen days,
commencing upon receipt of the notification, to respond and inform
the consumer of the location of the facility where the vehicle will
be repaired. If the vehicle is unsafe to drive due to a serious
safety defect, or to the extent the repair facility is more than one
hundred miles from the motor home location, the motor home
manufacturers are responsible for the cost of transporting the
vehicle to and from the repair facility. The motor home
manufacturers have a cumulative total of thirty days, commencing
upon delivery of the vehicle to the designated repair facility by
the consumer, to conform the vehicle to the applicable motor home
manufacturer's written warranty. This time period may be extended if
the consumer agrees in writing. If a motor home manufacturer fails
to respond to the consumer or perform the repairs within the time
period prescribed, that motor home manufacturer is not entitled to a
final attempt to cure the nonconformity.
(c) In the case of a new
motor vehicle that is a motor home, if the vehicle is out of service
by reason of diagnosis or repair of one or more nonconformities by
the motor home manufacturers, their respective agents, or their
respective new motor vehicle dealers for a cumulative total of
thirty or more days aggregating all motor home manufacturer days out
of service, the consumer shall so notify each motor home
manufacturer in writing at their respective corporate, zone, or
regional office addresses to allow the motor home manufacturers,
their respective agents, or their respective new motor vehicle
dealers an opportunity to coordinate and complete an inspection and
any repairs of the vehicle's nonconformities. The motor home
manufacturers have fifteen days, commencing upon receipt of the
notification, to respond and inform the consumer of the location of
the facility where the vehicle will be repaired. If the vehicle is
unsafe to drive due to a serious safety defect, or to the extent the
repair facility is more than one hundred miles from the motor home
location, the motor home manufacturers are responsible for the cost
of transporting the vehicle to and from the repair facility. Once
the buyer delivers the vehicle to the designated repair facility,
the inspection and repairs must be completed by the motor home
manufacturers either
(i) within ten days or
(ii) before the vehicle is
out of service by reason of diagnosis or repair of one or more
nonconformities for sixty days, whichever time period is longer.
This time period may be extended if
the consumer agrees in writing. If a motor home manufacturer fails
to respond to the consumer or perform the repairs within the time
period prescribed, that motor home manufacturer is not entitled to
at least one opportunity to inspect and repair the vehicle's
nonconformities after receipt of notification from the buyer as
provided for in this subsection (3)(c).
(4) No new motor vehicle
dealer may be held liable by the manufacturer for any collateral
charges, incidental costs, purchase price refunds, or vehicle
replacements. Manufacturers shall not have a cause of action against
dealers under this chapter. Consumers shall not have a cause of
action against dealers under this chapter, but a violation of any
responsibilities imposed upon dealers under this chapter is a per se
violation of chapter 19.86 RCW. Consumers may pursue rights and
remedies against dealers under any other law, including chapters
46.70 and 46.71 RCW. Manufacturers and consumers may not make
dealers parties to arbitration board proceedings under this chapter.
19.118.061
Vehicle with nonconformities or out of service.
Notification of correction; Resale
or transfer of title; Issuance of new title; Disclosure to buyer;
Intervening transferor.
(1) A manufacturer shall be
prohibited from reselling any motor vehicle determined or
adjudicated as having a serious safety defect unless the serious
safety defect has been corrected and the manufacturer warrants upon
the first subsequent resale that the defect has been corrected.
(2) Before any sale or
transfer of a vehicle that has been replaced or repurchased by the
manufacturer that was determined or adjudicated as having a
nonconformity or to have been out of service for thirty or more
calendar days, or sixty or more calendar days in the case of a motor
home, under this chapter, the manufacturer shall:
(a) Notify the attorney
general and the department of licensing, by certified mail or by
personal service, upon receipt of the motor vehicle;
(b) Attach a resale
disclosure notice to the vehicle in a manner and form to be
specified by the attorney general. Only the retail purchaser may
remove the resale disclosure notice after execution of the
disclosure form required under subsection (3) of this section; and
(c) Notify the attorney
general and the department of licensing if the nonconformity in the
motor vehicle is corrected.
(3) Upon the first
subsequent resale, either at wholesale or retail, or transfer of
title of a motor vehicle and which was previously returned after a
final determination, adjudication, or settlement under this chapter
or under a similar statute of any other state, the manufacturer, its
agent, or the new motor vehicle dealer who has actual knowledge of
said final determination, adjudication or settlement, shall execute
and deliver to the buyer before sale an instrument in writing
setting forth information identifying the nonconformity in a manner
to be specified by the attorney general, and the department of
licensing shall place on the certificate of title information
indicating the vehicle was returned under this chapter.
(4) Upon receipt of the
manufacturer's notification under subsection (2) of this section
that the nonconformity has been corrected and upon the
manufacturer's request and payment of any fees, the department of
licensing shall issue a new title with information indicating the
vehicle was returned under this chapter and that the nonconformity
has been corrected. Upon the first subsequent resale, either at
wholesale or retail, or transfer of title of a motor vehicle, as
provided under subsection (2)(c) of this section, the manufacturer
shall warrant upon the resale that the nonconformity has been
corrected, and the manufacturer, its agent, or the new motor vehicle
dealer who has actual knowledge of the corrected nonconformity,
shall execute and deliver to the buyer before sale an instrument in
writing setting forth information identifying the nonconformity and
indicating that it has been corrected in a manner to be specified by
the attorney general.
(5) After repurchase or
replacement and following a manufacturer's receipt of a vehicle
under this section and prior to a vehicle's first subsequent retail
transfer by resale or lease, any intervening transferor of a vehicle
subject to the requirements of this section who has received the
disclosure, correction and warranty documents, as specified by the
attorney general and required under this chapter, shall deliver the
documents with the vehicle to the next transferor, purchaser or
lessee to ensure proper and timely notice and disclosure. Any
intervening transferor who fails to comply with this subsection
shall, at the option of the subsequent transferor or first
subsequent retail purchaser or lessee:
(a) Indemnify any subsequent
transferor or first subsequent retail purchaser for all damages
caused by such violation; or
(b) repurchase the vehicle
at the full purchase price including all fees, taxes and costs
incurred for goods and services which were included in the
subsequent transaction.
19.118.070
Remedies.
The remedies provided under this
chapter are cumulative and are in addition to any other remedies
provided by law.
19.118.080
New motor vehicle arbitration boards.
Board proceedings; Prerequisite to
filing action in superior court.
(1) Except as provided in
RCW 19.118.160, the attorney general shall contract with one or more
private entities to conduct arbitration proceedings in order to
settle disputes between consumers and manufacturers as provided in
this chapter, and each private entity shall constitute a new motor
vehicle arbitration board for purposes of this chapter. The entities
shall not be affiliated with any manufacturer or new motor vehicle
dealer and shall have available the services of persons with
automotive technical expertise to assist in resolving disputes under
this chapter. No private entity or its officers or employees
conducting board proceedings and no arbitrator presiding at such
proceedings shall be directly involved in the manufacture,
distribution, sale, or warranty service of any motor vehicle.
Payment to the entities for the arbitration services shall be made
from the new motor vehicle arbitration account.
(2) The attorney general
shall adopt rules for the uniform conduct of the arbitrations by the
boards whether conducted by a private entity or by the attorney
general pursuant to RCW 19.118.160, which rules shall include but
not be limited to the following procedures:
(a) At all arbitration
proceedings, the parties are entitled to present oral and written
testimony, to present witnesses and evidence relevant to the
dispute, to cross-examine witnesses, and to be represented by
counsel.
(b) A dealer, manufacturer,
or other persons shall produce records and documents requested by a
party which are reasonably related to the dispute. If a dealer,
manufacturer, or other person refuses to comply with such a request,
a party may present a request to the board for the attorney general
to issue a subpoena on behalf of the board.
The subpoena shall be issued only
for the production of records and documents which the board has
determined are reasonably related to the dispute, including but not
limited to documents described in RCW 19.118.031 (4) or (5).
If a party fails to comply with the
subpoena, the arbitrator may at the outset of the arbitration
hearing impose any of the following sanctions:
(i) Find that the matters
which were the subject of the subpoena, or any other designated
facts, shall be taken to be established for purposes of the hearing
in accordance with the claim of the party which requested the
subpoena;
(ii) refuse to allow the
disobedient party to support or oppose the designated claims or
defenses, or prohibit that party from introducing designated matters
into evidence;
(iii) strike claims or
defenses, or parts thereof; or
(iv) render a decision by
default against the disobedient party.
If a nonparty fails to comply with
a subpoena and upon an arbitrator finding that without such
compliance there is insufficient evidence to render a decision in
the dispute, the attorney general shall enforce such subpoena in
superior court and the arbitrator shall continue the arbitration
hearing until such time as the nonparty complies with the subpoena
or the subpoena is quashed.
(c) A party may obtain
written affidavits from employees and agents of a dealer, a
manufacturer or other party, or from other potential witnesses, and
may submit such affidavits for consideration by the board.
(d) Records of the board
proceedings shall be open to the public. The hearings shall be open
to the public to the extent practicable.
(e) Where the board
proceedings are conducted by one or more private entities, a single
arbitrator may be designated to preside at such proceedings.
(3) A consumer shall exhaust
the new motor vehicle arbitration board remedy or informal dispute
resolution settlement procedure under RCW 19.118.150 before filing
any superior court action.
(4) The attorney general
shall maintain records of each dispute submitted to the new motor
vehicle arbitration board, including an index of new motor vehicles
by year, make, and model.
(5) The attorney general
shall compile aggregate annual statistics for all disputes submitted
to, and decided by, the new motor vehicle arbitration board, as well
as annual statistics for each manufacturer that include, but shall
not be limited to, the number and percent of:
(a) Replacement motor
vehicle requests;
(b) purchase price refund
requests;
(c) replacement motor
vehicles obtained in prehearing settlements;
(d) purchase price refunds
obtained in prehearing settlements;
(e) replacement motor
vehicles awarded in arbitration;
(f) purchase price refunds
awarded in arbitration;
(g) board decisions neither
complied with during the forty calendar day period nor petitioned
for appeal within the thirty calendar day period;
(h) board decisions appealed
categorized by consumer or manufacturer;
(i) the nature of the court
decisions and who the prevailing party was;
(j) appeals that were held
by the court to be brought without good cause; and
(k) appeals that were held
by the court to be brought solely for the purpose of harassment. The
statistical compilations shall be public information.
(6) The attorney general
shall adopt rules to implement this chapter. Such rules shall
include uniform standards by which the boards shall make
determinations under this chapter, including but not limited to
rules which provide:
(a) A board shall find that
a nonconformity exists if it determines that the consumer's new
motor vehicle has a defect, serious safety defect, or condition that
substantially impairs the use, value, or safety of the vehicle.
(b) A board shall find that
a reasonable number of attempts to repair a nonconformity have been
undertaken if:
(i) The same serious safety
defect has been subject to diagnosis or repair two or more times, at
least one of which is during the period of coverage of the
applicable manufacturer's written warranty, and the serious safety
defect continues to exist;
(ii) the same nonconformity
has been subject to diagnosis or repair four or more times, at least
one of which is during the period of coverage of the applicable
manufacturer's written warranty, and the nonconformity continues to
exist; or
(iii) the vehicle is out of
service by reason of diagnosis or repair of one or more
nonconformities for a cumulative total of thirty calendar days, at
least fifteen of them during the period of the applicable
manufacturer's written warranty. For purposes of this subsection,
the manufacturer's written warranty shall be at least one year after
the date of the original delivery to the consumer of the vehicle or
the first twelve thousand miles of operation, whichever occurs
first.
(c) A board shall find that
a manufacturer has failed to comply with RCW 19.118.041 if it finds
that the manufacturer, its agent, or the new motor vehicle dealer
has failed to correct a nonconformity after a reasonable number of
attempts and the manufacturer has failed, within forty days of the
consumer's written request, to repurchase the vehicle or replace the
vehicle with a vehicle identical or reasonably equivalent to the
vehicle being replaced.
(7) The attorney general
shall provide consumers with information regarding the procedures
and remedies under this chapter.
19.118.090
Request for arbitration.
Eligibility; Rejection;
Manufacturer's response; Remedies; Defenses; Acceptance or appeal.
(1) A consumer may request
arbitration under this chapter by submitting the request to the
attorney general. Within ten days after receipt of an arbitration
request, the attorney general shall make a reasonable determination
of the cause of the request for arbitration and provide necessary
information to the consumer regarding the consumer's rights and
remedies under this chapter. The attorney general shall assign the
dispute to a board, except that if it clearly appears from the
materials submitted by the consumer that the dispute is not eligible
for arbitration, the attorney general may refuse to assign the
dispute and shall explain any required procedures to the consumer.
(2) Manufacturers shall
submit to arbitration if such arbitration is requested by the
consumer within thirty months from the date of the original delivery
of the new motor vehicle to a consumer at retail and if the
consumer's dispute is deemed eligible for arbitration by the board.
In the case of a motor home, the thirty-month period will be
extended by the amount of time it takes the motor home manufacturers
to complete the final repair attempt at the designated repair
facility as provided for in RCW 19.118.041(3)(b).
(3) The new motor vehicle
arbitration board may reject for arbitration any dispute that it
determines to be frivolous, fraudulent, filed in bad faith, res
judicata or beyond its authority. Any dispute deemed by the board to
be ineligible for arbitration due to insufficient evidence may be
reconsidered by the board upon the submission of other information
or documents regarding the dispute that would allegedly qualify for
relief under this chapter. Following a second review, the board may
reject the dispute for arbitration if evidence is still clearly
insufficient to qualify the dispute for relief under this chapter. A
rejection by the board is subject to review by the attorney general
or may be appealed under RCW 19.118.100.
A decision to reject any dispute
for arbitration shall be sent by certified mail to the consumer and
the manufacturer, and shall contain a brief explanation as to the
reason therefore.
(4) The manufacturer shall
complete a written manufacturer response to the consumer's request
for arbitration. The manufacturer shall provide a response to the
consumer and the board within ten calendar days from the date of the
manufacturer's receipt of the board's notice of acceptance of a
dispute for arbitration. The manufacturer response shall include all
issues and affirmative defenses related to the nonconformities
identified in the consumer's request for arbitration that the
manufacturer intends to raise at the arbitration hearing.
(5) The arbitration board
shall award the remedies under RCW 19.118.041 if it finds a
nonconformity and that a reasonable number of attempts have been
undertaken to correct the nonconformity. The board shall award
reasonable costs and attorneys' fees incurred by the consumer where
the manufacturer has been directly represented by counsel:
(a) In dealings with the
consumer in response to a request to repurchase or replace under RCW
19.118.041;
(b) in settlement
negotiations;
(c) in preparation of the
manufacturer's statement; or
(d) at an arbitration board
hearing or other board proceeding.
In the case of an arbitration
involving a motor home, the board may allocate liability among the
motor home manufacturers.
(6) It is an affirmative
defense to any claim under this chapter that:
(a) The alleged
nonconformity does not substantially impair the use, value, or
safety of the new motor vehicle; or
(b) the alleged
nonconformity is the result of abuse, neglect, or unauthorized
modifications or alterations of the new motor vehicle.
(7) The board shall have
forty-five calendar days from the date the board receives the
consumer's request for arbitration to hear the dispute. If the board
determines that additional information is necessary, the board may
continue the arbitration proceeding on a subsequent date within ten
calendar days of the initial hearing. The board shall decide the
dispute within sixty calendar days from the date the board receives
the consumer's request for arbitration.
The decision of the board shall be
delivered by certified mail or personal service to the consumer and
the manufacturer, and shall contain a written finding of whether the
new motor vehicle meets the standards set forth under this chapter.
(8) The consumer may accept
the arbitration board decision or appeal to superior court, pursuant
to RCW 19.118.100. Upon acceptance by the consumer, the arbitration
board decision shall become final. The consumer shall send written
notification of acceptance or rejection to the arbitration board
within sixty days of receiving the decision and the arbitration
board shall immediately deliver a copy of the consumer's acceptance
to the manufacturer by certified mail, return receipt requested, or
by personal service. Failure of the consumer to respond to the
arbitration board within sixty calendar days of receiving the
decision shall be considered a rejection of the decision by the
consumer. The consumer shall have one hundred twenty calendar days
from the date of rejection to file a petition of appeal in superior
court. At the time the petition of appeal is filed, the consumer
shall deliver, by certified mail or personal service, a conformed
copy of such petition to the attorney general.
(9) Upon receipt of the
consumer's acceptance, the manufacturer shall have forty calendar
days to comply with the arbitration board decision or thirty
calendar days to file a petition of appeal in superior court. At the
time the petition of appeal is filed, the manufacturer shall
deliver, by certified mail or personal service, a conformed copy of
such petition to the attorney general. If the attorney general
receives no notice of petition of appeal after forty calendar days,
the attorney general shall contact the consumer to verify
compliance.
19.118.095
Arbitration decision.
Compliance; Accomplishment;
Dispute; Failure; Fine; Costs; Attorneys' fees.
(1) Compliance with an
arbitration board decision under this chapter must be accomplished
at a time, place, and in a manner to be determined by the mutual
agreement of the consumer and manufacturer.
(a) The consumer shall make
the motor vehicle available to the manufacturer free of damage other
than that related to any nonconformity, defect, or condition to
which a warranty applied, or that can reasonably be expected in the
use of the vehicle for ordinary or reasonably intended purposes and
in consideration of the mileage attributable to the consumer's use.
Any insurance claims or settlement proceeds for repair of damage to
the vehicle due to fire, theft, vandalism, or collision must be
assigned to the manufacturer or, at the consumer's option, the
repair must be completed before return of the vehicle to the
manufacturer. The consumer may not remove any equipment or option
that was included in the original purchase or lease of the vehicle
or that is otherwise included in the repurchase or replacement
award. In removing any equipment not included in the original
purchase or lease, the consumer shall exercise reasonable care to
avoid further damage to the vehicle but is not required to return
the vehicle to original condition.
(b) At the time of
compliance with an arbitration board decision that awards
repurchase, the manufacturer shall make full payment to the
consumers and either the lessor or lien holder, or both, or provide
verification to the consumer of prior payment to either the lessor
or lien holder, or both. At the time of compliance with an
arbitration board decision that awards replacement, the manufacturer
shall provide the replacement vehicle together with any refund of
incidental costs.
(c) At any time before
compliance a party may request the board to resolve disputes
regarding compliance with the arbitration board decision including
but not limited to time and place for compliance, condition of the
vehicle to be returned, clarification or recalculation of refund
amounts under the award, or a determination if an offered vehicle is
reasonably equivalent to the vehicle being replaced. In resolving
compliance disputes the board may not review, alter, or otherwise
change the findings of a decision or extend the time for compliance
beyond the time necessary for the board to resolve the dispute.
(d) Failure of the consumer
to make the vehicle available within sixty calendar days in response
to a manufacturer's unconditional tender of compliance is considered
a rejection of the arbitration decision by the consumer, except as
provided in (c) of this subsection or subsection (2) of this
section.
(2) If, at the end of the
forty calendar day period, neither compliance with nor a petition to
appeal the board's decision has occurred, the attorney general may
impose a fine of up to one thousand dollars per day until compliance
occurs or a maximum penalty of one hundred thousand dollars accrues
unless the manufacturer can provide clear and convincing evidence
that any delay or failure was beyond its control or was acceptable
to the consumer as evidenced by a written statement signed by the
consumer. If the manufacturer fails to provide the evidence or fails
to pay the fine, the attorney general may initiate proceedings
against the manufacturer for failure to pay any fine that accrues
until compliance with the board's decision occurs or the maximum
penalty of one hundred thousand dollars results. If the attorney
general prevails in an enforcement action regarding any fine imposed
under this subsection, the attorney general is entitled to
reasonable costs and attorneys' fees. Fines and recovered costs and
fees shall be returned to the new motor vehicle arbitration account.
19.118.100
Trial de novo.
Posting security; Recovery.
(1) The consumer or the
manufacturer may request a trial de novo of the arbitration
decision, including a rejection, in superior court.
(2) If the manufacturer
appeals, the court may require the manufacturer to post security for
the consumer's financial loss due to the passage of time for review.
(3) If the consumer
prevails, recovery shall include the monetary value of the award,
attorneys' fees and costs incurred in the superior court action,
and, if the board awarded the consumer replacement or repurchase of
the vehicle and the manufacturer did not comply, continuing damages
in the amount of twenty-five dollars per day for all days beyond the
forty calendar day period following the manufacturer's receipt of
the consumer's acceptance of the board's decision in which the
manufacturer did not provide the consumer with the free use of a
comparable loaner replacement motor vehicle. If it is determined by
the court that the party that appealed acted without good cause in
bringing the appeal or brought the appeal solely for the purpose of
harassment, the court may triple, but at least shall double, the
amount of the total award.
19.118.110
Arbitration fee
New motor vehicle arbitration
account; Report by attorney general.
A three-dollar arbitration fee
shall be collected by either the new motor vehicle dealer or vehicle
lessor from the consumer upon execution of a retail sale or lease
agreement. The fee shall be forwarded to the department of licensing
at the time of title application for deposit in the new motor
vehicle arbitration account hereby created in the state treasury.
Moneys in the account shall be used for the purposes of this
chapter, subject to appropriation. During the 1995-97 fiscal
biennium, the legislature may transfer moneys from the account to
the extent that the moneys are not necessary for the purposes of
this chapter.
At the end of each fiscal year, the
attorney general shall prepare a report listing the annual revenue
generated and the expenses incurred in implementing and operating
the arbitration program under this chapter.
19.118.120
Application of consumer protection act.
A violation of this chapter shall
constitute an unfair or deceptive trade practice affecting the
public interest under chapter 19.86 RCW. All public and private
remedies provided under that chapter shall be available to enforce
this chapter.
19.118.130
Waivers, limitations, disclaimers; Void.
Any agreement entered into by a
consumer for the purchase of a new motor vehicle that waives,
limits, or disclaims the rights set forth in RCW 19.118.021 through
19.118.140 shall be void as contrary to public policy. Said rights
shall extend to a subsequent transferee of such new motor vehicle.
19.118.140
Other rights and remedies not precluded.
Nothing in this chapter limits the
consumer from pursuing other rights or remedies under any other law.
19.118.150
Informal dispute resolution settlement procedure.
If a manufacturer has established
an informal dispute resolution settlement procedure which
substantially complies with the applicable provision of Title 16,
Code of Federal Regulations Part 703, as from time to time amended,
a consumer may choose to first submit a dispute under this chapter
to the informal dispute resolution settlement procedure.
19.118.170
History of vehicle.
Availability to owner.
Notwithstanding RCW 46.12.380, the
department of licensing shall make available to the registered owner
all title history information regarding the vehicle upon request of
the registered owner and receipt of a statement that he or she is
investigating or pursuing rights under this chapter.
