Lemon Law - West Virginia
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".
(1) The Legislature hereby
finds and declares as a matter of public policy that the purpose of
this article is to place upon the manufacturers of motor vehicles
the duty to meet their obligations and responsibilities under the
terms of the express warranties extended to the consumers in this
state. The Legislature further finds as a matter of public policy
that the manufacturer shall bear the total cost of performing any
duty or responsibility imposed by their warranties and the
provisions of this article.
(2) The Legislature further
finds that any agreement under the provisions of article six-a,
chapter seventeen-a of this code, or any agreement hereafter amended
or entered into between a dealer and manufacturer which would
transfer to the dealer any duty, or all or any part of the cost of
performing any duty imposed on the manufacturer by the provisions of
this article, or which would directly or indirectly charge the
dealer for or reduce the payment or reimbursement due the dealer for
performing work or furnishing parts required by this article to be
provided by either the dealer or manufacturer, so as to shift to the
dealer all or any part of the cost of the manufacturer's compliance
with this article, to be against public policy, void and
unenforceable.
46A-6A-2 Definitions.
When used in this article, the
following words, terms and phrases shall have the meaning ascribed
to them, except where the context indicates a different meaning:
(1) "Consumer"
means the purchaser, other than for purposes of resale, of a new
motor vehicle purchased in this state, used primarily for personal,
family or household purposes, a person to whom the new motor vehicle
is transferred for the same purposes during the duration of an
express warranty applicable to the motor vehicle and any other
person entitled by the terms of the warranty to enforce the
obligations of the warranty;
(2) "Manufacturer"
means a person engaged in the business of manufacturing, assembling
or distributing motor vehicles, who will, under normal business
conditions during the year, manufacture, assemble or distribute to
dealers at least ten new motor vehicles;
(3) "Manufacturer's
express warranty" and "warranty" mean the written
warranty of the manufacturer of a new motor vehicle of its condition
and fitness for use, including any terms or conditions precedent to
the enforcement of obligations under that warranty; and
(4) "Motor
vehicle" means any passenger automobile sold in this state,
including pickup trucks and vans subject to registration as a Class
A motor vehicle under the provisions of article ten, chapter
seventeen-a of this code, and any self-propelled motor vehicle
chassis of motor homes sold in this state subject to registration as
and Class A or Class B motor vehicle under the provisions of article
ten, chapter seventeen- a of this code.
46A-6A-3 Manufacturer's duty to
repair or replace new motor vehicles.
(a) If a new motor vehicle
purchased in this state on or after the first day of January, one
thousand nine hundred eighty-four, does not conform to all
applicable express warranties and the consumer reports the
nonconformity to the manufacturer, its agent or its authorized
dealer during the term of the express warranties or during the
period of one year following the date of original delivery of the
new motor vehicle to a consumer, whichever is the later date, the
manufacturer, its agent or its authorized dealer shall make the
repairs necessary to conform the vehicle to the express warranties,
notwithstanding the fact that the repairs are made after the
expiration of the warranty term.
(b) If the manufacturer, its
agents or its authorized dealer are unable to conform the new motor
vehicle to any applicable express warranty by repairing or
correcting any defect or condition which substantially impairs the
use or market value of the motor vehicle to the consumer after a
reasonable number of attempts, the manufacturer shall, replace the
new motor vehicle with a comparable new motor vehicle which does
conform to the warranties.
46A-6A-3a Dealer's duty to
disclose repairs to consumer.
Beginning the first day of July,
one thousand nine hundred eighty-nine, all authorized dealers of new
motor vehicles purchased in this state shall provide to any consumer
a written disclosure of any repairs to a new motor vehicle which
repairs have a retail value of five hundred dollars or more and were
performed after shipment from the manufacturer to the dealer,
including damage to the new motor vehicle while in transit.
This disclosure requirement does
not apply to identical replacement of stolen or damaged accessories
or their components, tires or antennae.
For purposes of this section, a
motor vehicle is not a new motor vehicle when it has been previously
titled or the motor vehicle has been damaged in such a manner that,
were the damage not repaired, the value and usability of the motor
vehicle would be substantially impaired.
46A-6A-4 Civil action by
consumer.
(a) If the nonconformity
results in substantial impairment to the use or market value of the
new motor vehicle and the manufacturer has not replaced the new
motor vehicle pursuant to the provisions of section three of this
article, or if the nonconformity exists after a reasonable number of
attempts to conform the new motor vehicle to the applicable express
warranties, the consumer shall have a cause of action against the
manufacturer, in the circuit court of any county having venue.
(b) In any action under this
section, the consumer may be awarded all or any portion of the
following:
(1) Revocation of acceptance
and refund of the purchase price, including, but not limited to,
sales tax, license and registration fees, and other reasonable
expenses incurred for the purchase of the new motor vehicle, or if
there be no such revocation of acceptance, damages for diminished
value of the motor vehicle;
(2) Damages for the cost of
repairs reasonably required to conform the motor vehicle to the
express warranty;
(3) Damages for the loss of
use, annoyance or inconvenience resulting from the nonconformity,
including, but not limited to, reasonable expenses incurred for
replacement transportation during any period when the vehicle is not
out of service by reason of the nonconformity or by reason of
repair; and
(4) Reasonable attorney
fees.
(c) It is an affirmative
defense to any claim under this section
(i) that an alleged
nonconformity does not substantially impair the use or market value
or
(ii) that a nonconformity is
the result of abuse, neglect or unauthorized modifications or
alterations of a motor vehicle by anyone other than the
manufacturer, its agent or its authorized dealer.
(d) An action brought under
this section by the consumer must be commenced within one year of
the expiration of the express warranty term.
(e) The cause of action
provided for in this section shall be available only against the
manufacturer.
46A-6A-5 Presumption of
reasonable number of attempts.
Extension of warranty term when
repair services unavailable.
(a) It is presumed that a
reasonable number of attempts have been undertaken to conform a new
motor vehicle to the applicable express warranties, if the same
nonconformity has been subject to repair three or more times by the
manufacturer, its agents or its authorized dealers within the
express warranty term or during the period of one year following the
date of original delivery of the motor vehicle to the consumer,
whichever is the earlier date, and the nonconformity continues to
exist, or the vehicle is out of service by reason of repair for a
cumulative total of thirty or more calendar days during the term or
during the one-year period, whichever is the earlier date.
(b) If the nonconformity
results in a condition which is likely to cause death or serious
bodily injury if the vehicle is driven, it is presumed that a
reasonable number of attempts have been undertaken to conform the
vehicle to the applicable express warranties if the nonconformity
has been subject to repair at least once by the manufacturer within
the express warranty term or during the period of one year following
the date of original delivery of the motor vehicle to a consumer,
whichever is the earlier date, and the nonconformity continues to
exist.
(c) The presumption that a
reasonable number of attempts have been undertaken to conform a new
motor vehicle to the applicable express warranties applies against a
manufacturer only if the manufacturer has received prior written
notification from or on behalf of the consumer and has had at least
one opportunity to cure the defect alleged.
(d) The term of an express
warranty, the one-year period and the thirty-day period shall be
extended by any period of time during which repair services are not
available to the consumer because of a war, invasion, strike or
fire, flood or other natural disaster.
46A-6A-6 Written statement to be
provided to consumer.
At the time of purchase the
manufacturer, either directly or through its agent or its authorized
dealer, must provide the consumer a written statement on a separate
piece of paper, in ten point all capital type, in substantially the
following form:
"IMPORTANT: IF THIS VEHICLE IS
DEFECTIVE, YOU MAY BE ENTITLED UNDER STATE LAW TO REPLACEMENT OR TO
COMPENSATION. HOWEVER, TO BE ENTITLED TO REPLACEMENT OR TO
COMPENSATION, YOU MUST FIRST NOTIFY THE MANUFACTURER OF THE PROBLEM
IN WRITING AND PROVIDE THE MANUFACTURER AN OPPORTUNITY TO REPAIR THE
VEHICLE."
46A-6A-7 Resale of returned
motor vehicle.
If a new motor vehicle has been
returned under section three of this article or a similar statute of
another state, it may not be resold in this state unless the
manufacturer corrects the nonconformity and provides the consumer
with a written statement on a separate piece of paper in ten point
all capital type, in substantially the following form:
"IMPORTANT: THIS VEHICLE WAS
RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO THE
MANUFACTURER'S EXPRESS WARRANTY AND THE NONCONFORMITY WAS NOT CURED
WITHIN A REASONABLE TIME AS PROVIDED BY WEST VIRGINIA LAW."
Provided, That no manufacturer
shall require by agreement or otherwise, either directly or
indirectly, that any of its authorized dealers in this state accept
such a motor vehicle for resale.
46A-6A-8 Third party dispute
resolution process.
Attorney general to promulgate
rules and regulations.
(a) The attorney general of
the state of West Virginia shall promulgate rules and regulations
for the establishment and qualification of a third party dispute
mechanism or mechanisms for the resolution of warranty disputes
between the consumer and the manufacturer, its agent or its
authorized dealer. Such mechanisms shall be under the supervision of
the division of consumer protection in the office of the attorney
general, and shall meet or exceed the minimum requirements of the
informal dispute settlement mechanism as provided by the
Magnuson-Moss Warranty Federal Trade Commission Improvement Act
(Public Law 93-637) and rules and regulations lawfully promulgated
there under effective the first day of January, one thousand nine
hundred eighty-four.
(b) If a qualified third
party dispute resolution process exists and the consumer receives
timely notification in writing of the availability of the third
party process with a description of its operation and effect, the
cause of action under section four of this article may not be
asserted by the consumer until after the consumer has initially
resorted to the third party process. Notification of the
availability of the third party process must be timely to the
consumer. If a qualified third party dispute resolution process does
not exist, or if the consumer is dissatisfied with the third party
decision, or if the manufacturer, its agent or its authorized dealer
fails to promptly fulfill the terms of the third party decision, the
consumer may assert a cause of action under section four of this
article.
(c) Any period of limitation
of actions under any federal or West Virginia laws with respect to
any consumer shall be tolled for the period between the date a
complaint is filed with a third party dispute resolution process and
the date of its decision or the date before which the manufacturer,
its agent or its authorized dealer is required by the decision to
fulfill its terms, whichever occurs later.
46A-6A-9 Other remedies
available.
Nothing in this article shall be
construed to limit any right or remedy which is otherwise available
to a consumer or authorized dealer of a manufacturer under any other
law.
