Connecticut 2012 Regular Session

Connecticut Senate Bill SB00388 Compare Versions

Only one version of the bill is available at this time.
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11 General Assembly Raised Bill No. 388
22 February Session, 2012 LCO No. 1812
33 *01812_______TRA*
44 Referred to Committee on Transportation
55 Introduced by:
66 (TRA)
77
88 General Assembly
99
1010 Raised Bill No. 388
1111
1212 February Session, 2012
1313
1414 LCO No. 1812
1515
1616 *01812_______TRA*
1717
1818 Referred to Committee on Transportation
1919
2020 Introduced by:
2121
2222 (TRA)
2323
2424 AN ACT CONCERNING WARRANTIES APPLICABLE TO VESSELS AND MARINE ENGINES.
2525
2626 Be it enacted by the Senate and House of Representatives in General Assembly convened:
2727
2828 Section 1. (NEW) (Effective October 1, 2012) (a) As used in this section and sections 2 to 10, inclusive, of this act: (1) "Consumer" means the purchaser, other than for purposes of resale, of a boat, a lessee of a boat, any person to whom such boat is transferred during the duration of an express warranty applicable to such boat and any person entitled by the terms of such warranty to enforce the obligations of the warranty; and (2) "boat" means a passenger boat or motor or a passenger and commercial boat or motor that is sold or leased in this state.
2929
3030 (b) If a new boat does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its dealer during the period of two years following the date of original delivery of the boat to a consumer the manufacturer, its agent or dealer shall make such repairs as are necessary to conform the boat to such express warranties, notwithstanding the fact that such repairs are made after the expiration of the applicable period.
3131
3232 (c) No consumer shall be required to notify the manufacturer of a claim under this section and sections 5 to 8, inclusive, of this act, unless the manufacturer has clearly and conspicuously disclosed to the consumer, in the warranty or owner's manual, that written notification of the nonconformity is required before the consumer may be eligible for a refund or replacement of the boat. The manufacturer shall include with the warranty or owner's manual the name and address to which the consumer shall send such written notification.
3333
3434 (d) If the manufacturer or its agents or dealers are unable to conform the boat to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the boat to the consumer after a reasonable number of attempts, the manufacturer shall replace the boat with a new boat acceptable to the consumer, or accept return of the boat from the consumer and refund to the consumer, lessor and lienholder, if any, as their interests may appear, the following: (1) The full contract price, including, but not limited to, dealer preparation and transportation and installed options, (2) all collateral charges, including, but not limited to, sales tax, license and registration fees and similar government charges, (3) all finance charges incurred by the consumer after the consumer first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the boat is out of service by reason of repair, and (4) all incidental damages, as defined in section 42a-2-715 of the general statutes, less a reasonable allowance for the consumer's use of the boat. No dealer shall be held liable by the manufacturer for any refunds or boat replacements in the absence of evidence indicating that dealer repairs have been carried out in a manner inconsistent with the manufacturers' instructions. Refunds or replacements shall be made to the consumer, lessor and lienholder, if any, as their interests may appear. It shall be an affirmative defense to any claim under this section that (A) an alleged nonconformity does not substantially impair such use, safety or value, or (B) a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a boat by a consumer.
3535
3636 (e) It shall be presumed that a reasonable number of attempts have been undertaken to conform a boat to the applicable express warranties, if (1) the same nonconformity has been subject to repair four or more times by the manufacturer or its agents or dealers during the period of two years following the date of original delivery of the boat to a consumer but such nonconformity continues to exist, or (2) the boat is out of service by reason of repair for a cumulative total of thirty or more calendar days during the applicable period, determined pursuant to subdivision (1) of this subsection. Such two-year period and such 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. No claim shall be made under this section unless at least one attempt to repair a nonconformity has been made by the manufacturer or its agent or a dealer or unless such manufacturer, its agent or a dealer has refused to attempt to repair such nonconformity.
3737
3838 (f) If a boat has a nonconformity which results in a condition which is likely to cause death or serious bodily injury if the boat is used, it shall be presumed that a reasonable number of attempts have been undertaken to conform such boat to the applicable express warranties if the nonconformity has been subject to repair at least twice by the manufacturer or its agents or dealers within the express warranty term or during the period of one year following the date of the original delivery of the boat to a consumer, whichever period ends first, but such nonconformity continues to exist. The term of an express warranty and such one-year period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike or fire, flood or other natural disaster.
3939
4040 (g) (1) No boat which is returned to any person pursuant to any provision of this section and sections 2 to 10, inclusive, of this act or in settlement of any dispute related to any complaint made under the provisions of this section and sections 2 to 10, inclusive, of this act and which requires replacement or refund shall be resold, transferred or leased in the state without clear and conspicuous written disclosure of the fact that such boat was so returned prior to resale or lease. Such disclosure shall be affixed to the boat and shall be included in any contract for sale or lease. The Commissioner of Consumer Protection shall, by regulations adopted in accordance with the provisions of chapter 54 of the general statutes, prescribe the form and content of any such disclosure statement and establish provisions by which the commissioner may remove such written disclosure after such time as the commissioner may determine that such boat is no longer defective. (2) If a manufacturer accepts the return of a boat from a consumer due to a nonconformity or defect, in exchange for a refund or a replacement boat, whether as a result of an administrative or judicial determination, an arbitration proceeding or a voluntary settlement, the manufacturer shall notify the department and shall provide the department with all relevant information, including the year, make, model, and identification number of the boat. The commissioner shall adopt regulations, in accordance with chapter 54 of the general statutes, specifying the format and time period in which such information shall be provided and the nature of any additional information which the commissioner may require.
4141
4242 (h) All express and implied warranties arising from the sale of a new boat shall be subject to the provisions of part 3 of article 2 of title 42a of the general statutes.
4343
4444 (i) Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.
4545
4646 (j) If a manufacturer has established an informal dispute settlement procedure which is certified by the Attorney General as complying in all respects with the provisions of subsection (b) of section 6 of this act, the provisions of subsection (d) of this section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.
4747
4848 Sec. 2. (NEW) (Effective October 1, 2012) A dealer or agent of a manufacturer shall, upon the request of a consumer, provide such consumer with copies of any paperwork or invoices related to repair work performed on such consumer's boat in accordance with the provisions of subsection (b) of section 1 of this act. Any person who violates any provision of this section shall be guilty of an infraction.
4949
5050 Sec. 3. (NEW) (Effective October 1, 2012) Each boat dealer and each person engaged in the business of leasing new boats shall, at the time of sale or execution of the lease of any new boat, deliver to the consumer, as defined in subdivision (1) of subsection (a) of section 1 of this act, written information, on a form approved by the Commissioner of Consumer Protection, that explains the new boat warranty and dispute settlement program established pursuant to sections 1 to 10, inclusive, of this act.
5151
5252 Sec. 4. (NEW) (Effective October 1, 2012) In any action by a consumer, as defined in subdivision (1) of subsection (a) of section 1 of this act, against the manufacturer of a boat, or the manufacturer's agent or dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale or lease of such boat, the court, in its discretion, may award to the plaintiff consumer his costs and reasonable attorney's fees or, if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorney's fees to the defendant.
5353
5454 Sec. 5. (NEW) (Effective October 1, 2012) (a) The Department of Consumer Protection shall provide an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of boats that do not conform to all applicable warranties under the terms of section 1 of this act. The Commissioner of Consumer Protection shall establish one or more boat dispute arbitration panels that shall consist of three members appointed by the commissioner, only one of whom may be directly involved in the manufacture, distribution, sale or service of any product. Members shall be persons interested in consumer disputes and shall serve without compensation for terms of two years at the discretion of the commissioner. In lieu of referring an arbitration dispute to a panel established under the provisions of this section, the department may refer an arbitration dispute to the American Arbitration Association in accordance with regulations adopted in accordance with the provisions of chapter 54 of the general statutes.
5555
5656 (b) If any boat purchased or leased at any time on or after October 1, 2012, fails to conform to such applicable warranties, pursuant to section 1 of this act, a consumer may bring a grievance to an arbitration panel if the manufacturer of the boat has not established an informal dispute settlement procedure which the Attorney General has certified as complying in all respects with the requirements of section 1 of this act. The consumer may initiate a request for arbitration by calling a toll-free telephone number designated by the commissioner or by requesting an arbitration hearing in writing. The consumer shall file, on forms prescribed by the commissioner, any information deemed relevant to the resolution of the dispute and shall return the form accompanied by a filing fee of fifty dollars. Such complaint form shall offer the consumer a choice of presenting any subsequent testimony orally or in writing. Prior to submitting the complaint to an arbitration panel, the department shall conduct an initial review of the complaint. The department shall determine whether the complaint should be accepted or rejected for arbitration based on whether it alleges that the manufacturer has failed to comply with section 1 of this act. The filing fee shall be refunded if the department determines that a complaint does not allege a violation of any applicable warranty under the requirements of section 1 of this act. Upon acceptance of the complaint, the commissioner shall notify the manufacturer of the filing of a request for arbitration and shall obtain from the manufacturer, in writing, on a form prescribed by the commissioner, any information deemed relevant to the resolution of the dispute. The manufacturer shall return the form not later than fifteen days after receipt, together with a filing fee of two hundred fifty dollars. A lessee who brings a grievance to an arbitration panel under this section shall, upon filing the complaint form provided for in this section, provide the lessor with notice by registered or certified mail, return receipt requested, and the lessor may petition the arbitration panel to be made a party to the arbitration proceedings. Initial determinations to reject a complaint for arbitration shall be submitted to an arbitration panel for a final decision upon receipt of a written request from the consumer for a review of the initial eligibility determination and a filing fee of fifty dollars. If a complaint is accepted for arbitration, an arbitration panel may determine that a complaint does not allege that the manufacturer has failed to comply with the provisions of section 1 of this act at any time before such panel renders its decision on the merits of the dispute. The fee accompanying the consumer's complaint form shall be refunded to the consumer and the fee accompanying the form filed by the manufacturer shall be refunded to the manufacturer if the arbitration panel determines that a complaint does not allege a violation of the provisions of section 1 of this act.
5757
5858 (c) The department shall investigate, gather and organize all information necessary for a fair and timely decision in each dispute. The commissioner may issue subpoenas on behalf of any arbitration panel to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute. The department shall forward a copy of all written testimony, including all documentary evidence, to an independent technical expert having a degree or other credentials from a nationally recognized organization or institution attesting to boat building and repair expertise, who shall review such material and be available to advise and consult with the arbitration panel. An expert shall sit as a nonvoting member of an arbitration panel whenever oral testimony is presented. An arbitration panel shall, as expeditiously as possible, but not later than sixty days after the time the consumer files the complaint form together with the filing fee, render a fair decision based on the information gathered and disclose its findings and the reasons therefor to the parties involved. The failure of the arbitrators to render a decision within sixty days shall not void any subsequent decision or otherwise limit the powers of the arbitrators. The arbitration panel shall base its determination of liability solely on whether the manufacturer has failed to comply with the provisions of section 1 of this act. The arbitration decision shall be final and binding as to the rights of the parties pursuant to section 1 of this act, subject only to judicial review as set forth in this subsection. The decision shall provide appropriate remedies, including, but not limited to, one or more of the following:
5959
6060 (1) Replacement of the boat with an identical or comparable new boat acceptable to the consumer;
6161
6262 (2) Refund of the full contract price, plus collateral charges as specified in subsection (d) of section 1 of this act;
6363
6464 (3) Reimbursement for expenses and compensation for incidental damages as specified in subsection (d) of section 1 of this act; or
6565
6666 (4) Any other remedies available under the applicable warranties, section 1 of this act, this section and sections 6 to 8, inclusive, of this act other than repair of the boat. The decision shall specify a date for performance and completion of all awarded remedies. Notwithstanding any provision of the general statutes or any regulation, the department shall not amend, reverse, rescind or revoke any decision or action of an arbitration panel. The department shall contact the consumer, not later than ten business days after the date for performance, to determine whether performance has occurred. The manufacturer shall act in good faith in abiding by any arbitration decision. In addition, either party to the arbitration may make application to the Superior Court for the judicial district in which one of the parties resides or, when the court is not in session, any judge thereof for an order confirming, vacating, modifying or correcting any award, in accordance with the provisions of this section and sections 52-417, 52-418, 52-419 and 52-420 of the general statutes. Upon filing such application the moving party shall mail a copy of the application to the Attorney General and, upon entry of any judgment or decree, shall mail a copy of such judgment or decree to the Attorney General. A review of such application shall be confined to the record of the proceedings before the arbitration panel. The court shall conduct a de novo review of the questions of law raised in the application. In addition to the grounds set forth in sections 52-418 and 52-419 of the general statutes, the court shall consider questions of fact raised in the application. In reviewing questions of fact, the court shall uphold the award unless it determines that the factual findings of the arbitrators are not supported by substantial evidence in the record and that the substantial rights of the moving party have been prejudiced. If the arbitrators fail to state findings or reasons for the award, or the stated findings or reasons are inadequate, the court shall search the record to determine whether a basis exists to uphold the award. If it is determined by the court that the manufacturer has acted without good cause in bringing an appeal of an award, the court, in its discretion, may grant to the consumer costs and reasonable attorney's fees. If the manufacturer fails to perform all awarded remedies by the date for performance specified by the arbitrators, and the enforcement of the award has not been stayed pursuant to subsection (c) of section 52-420 of the general statutes, then each additional day the manufacturer wilfully fails to comply shall be deemed a separate violation for purposes of section 8 of this act.
6767
6868 (d) The department shall maintain such records of each dispute as the commissioner may require, including an index of disputes by brand name and model. The department shall annually compile and maintain statistics indicating the record of manufacturer compliance with arbitration decisions and the number of refunds or replacements awarded. A copy of the statistical summary shall be filed with the commissioner. The summary shall be a public record.
6969
7070 (e) If a manufacturer has not established an informal dispute settlement procedure certified by the Attorney General as complying with the provisions of section 1 of this act, public notice of the availability of the department's boat dispute settlement procedure shall be prominently posted in the place of business of each new boat dealer. The Commissioner of Consumer Protection shall determine the size, type face, form and wording of the sign required by this section, which shall include the toll-free telephone number and the address to which requests for the department's arbitration services may be sent.
7171
7272 (f) Any consumer injured by the operation of any procedure which does not conform with procedures established by a manufacturer pursuant to subsection (b) of section 6 of this act may appeal any decision rendered as the result of such a procedure by requesting arbitration de novo of the dispute by an arbitration panel. Filing procedures and fees for appeals shall be the same as those required in subsection (b) of this section. The findings of the manufacturer's informal dispute settlement procedure may be admissible in evidence at such arbitration panel hearing and in any civil action subsequently arising out of any warranty obligation or matter related to the dispute. Any consumer so injured may, in addition, request the Attorney General to investigate the manufacturer's procedure to determine whether its certification shall be suspended or revoked after proper notice and hearing. The Attorney General shall establish procedures for processing such consumer complaints and maintain a record of the disposition of such complaints, which record shall be included in the annual report prepared in accordance with the provisions of subsection (a) of section 6 of this act.
7373
7474 (g) The Commissioner of Consumer Protection shall adopt regulations, in accordance with the provisions of chapter 54 of the general statutes, to carry out the purposes of this section. Written copies of the regulations and appropriate arbitration hearing procedures shall be provided to any person upon request.
7575
7676 Sec. 6. (NEW) (Effective October 1, 2012) (a) The Attorney General shall prepare an annual report evaluating the operation of informal dispute settlement procedures established by manufacturers of new boats and shall issue a certificate of approval to those manufacturers whose settlement procedures comply with the provisions of subsection (b) of this section. The report and certification shall be public records. The Attorney General or an agent authorized by the Attorney General may conduct any inquiry or investigation in connection with the certification or evaluation of a manufacturer's informal dispute settlement procedure and may hold hearings, issue subpoenas requiring the attendance of witnesses and the production of records, documents or other evidence in connection therewith, administer oaths, examine witnesses, receive oral and documentary evidence and issue written interrogatories prescribing a return date which would allow a reasonable time to respond, which responses shall be under oath. Service of subpoenas compelling testimony or the production of documents and written interrogatories as provided in this section, may be made by (1) personal service or service at the usual place of abode; or (2) registered or certified mail, return receipt requested, a duly executed copy of which shall be addressed to the person to be served at such person's principal place of business in this state, or, if such person has no principal place of business in this state, to such person's principal office or to such person's residence. In the event that any person fails to comply with a subpoena or with interrogatories issued pursuant to this section, the Attorney General or an agent authorized by the Attorney General may apply to the superior court for the judicial district of Hartford for compliance, which court may, upon notice to such person, issue an order requiring such compliance, which shall be served upon such person. Hearings under this subsection shall be held in the manner provided for contested cases under sections 4-176e to 4-181a, inclusive, of the general statutes, except that no informal disposition may be made by stipulation, agreed settlement, consent order or default, in any proceeding concerning the certification of a boat manufacturer's informal dispute settlement procedure unless such proceeding is open to the public in accordance with the provisions of section 1-225 of the general statutes. The Attorney General, after notice and hearing, may suspend or revoke the certification of a boat manufacturer's informal dispute settlement procedure which violates the provisions of subsection (b) of this section. Any person aggrieved by a decision of the Attorney General or the Attorney General's authorized agent, may appeal in accordance with the provisions of sections 4-183 and 4-184 of the general statutes. Section 4-184a of the general statutes shall be applicable to such appeals. Hearings, meetings and conferences, except telephone conversations, relating to evaluation and certification shall be open to the public in accordance with the provisions of section 1-225 of the general statutes. If the Attorney General certifies a manufacturer's informal dispute settlement procedure, the provisions of subsection (d) of section 1 of this act concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure. A copy of the Attorney General's report and certification shall be forwarded by the Attorney General to the Commissioner of Consumer Protection
7777
7878 (b) A manufacturer's informal dispute procedure shall not include any practices that: (1) Delay a decision in any dispute beyond sixty days after the date on which the consumer initially resorts to the informal dispute settlement procedure either by telephone or by written notification that a dispute exists; (2) delay performance of remedies awarded in a settlement beyond ten days after receipt of notice of the consumer's acceptance of the decision, except that a manufacturer may have thirty days following the date of such receipt to deliver a replacement of a boat acceptable to the consumer or to refund the full contract price of the boat together with all collateral charges, and all consequential and incidental damages, as provided in section 1 of this act; (3) require the consumer to make the boat available more than once for inspection by a manufacturer's representative, and more than once for repair of the same defect by a dealer, in which cases, the manufacturer of the defective boat shall provide for the loan of a reliable boat, not more than two years old, for use during the periods required for inspection or repair; (4) fail to consider in decisions any remedies provided by sections 1, 5, 7 and 8 of this act, such remedies to include (A) repair, replacement and refund, (B) reimbursement for expenses and collateral charges, (C) compensation for consequential and incidental damages, as provided in section 1 of this act, and (D) any other remedies available under applicable express or implied warranties; or (5) fail to conform to all applicable standards and requirements of sections 1 to 10, inclusive, of this act in the processing of consumer complaints.
7979
8080 (c) Any manufacturer operating or participating in an informal dispute settlement procedure for resolving disputes with consumers in this state shall be required to maintain records that indicate the number of: (1) Boats sold in this state during the reporting period; (2) telephone and written requests from consumers to enter the dispute resolution program; (3) requests rejected as ineligible for the program; (4) requests accepted for resolution by the program; (5) cases in which a decision was reached and the manufacturer has complied with the decision within the time period for compliance established by the decision; (6) cases in which a decision was reached and the manufacturer's compliance occurred after the expiration of the time period for compliance established by the decision; (7) cases in which a decision was reached, the time period for compliance has expired and the manufacturer has not complied with such decision; (8) cases in which a decision was reached and the time period for compliance has not yet expired; (9) cases in which a decision awarded no relief to the consumer; (10) cases in which a decision awarded the consumer further repair or extended warranty; (11) cases in which a decision required the manufacturer to accept the return of the boat and a refund was issued to the consumer; (12) cases in which a decision required the manufacturer to accept the return of the boat and a replacement boat was provided to the consumer; (13) cases in which a decision is pending; (14) cases in which the consumer accepted the decision; (15) cases in which the consumer rejected the decision; and (16) cases resolved by predecision settlement.
8181
8282 Sec. 7. (NEW) (Effective October 1, 2012) The Commissioner of Consumer Protection may request institution of proceedings against any manufacturer found to have failed to comply with the provisions of sections 1, 5, 6 and 8 of this act.
8383
8484 Sec. 8. (NEW) (Effective October 1, 2012) A violation of any of the provisions of section 1 of this act and sections 5 to 7, inclusive, of this act, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b of the general statutes.
8585
8686 Sec. 9. (NEW) (Effective October 1, 2012) Notwithstanding the provisions of any general statute, regulation or grant of authority, no filing fee or statement required under the provisions of section 5 of this act shall be waived, refunded, reduced or withheld from use, by the state pursuant to any contract, stipulated settlement, consent order, administrative directive or by any other means except as provided in sections 1 to 10, inclusive, of this act or by order of a court of competent jurisdiction made upon proof of economic hardship and a finding that such settlement, consent order, directive or other action is in the public interest.
8787
8888 Sec. 10. (NEW) (Effective October 1, 2012) In any action by a consumer who is a lessee against the manufacturer of a boat, or the manufacturer's agent or dealer, based upon the alleged breach of an express or implied warranty made in connection with the lease of such boat pursuant to section 1 of this act, the lessee shall, at the time of the service of process upon such manufacturer, manufacturer's agent or dealer, notify the lessor of such boat of such action by registered or certified mail, return receipt requested, and such lessor may petition the court to be made a party to the proceedings.
8989
9090
9191
9292
9393 This act shall take effect as follows and shall amend the following sections:
9494 Section 1 October 1, 2012 New section
9595 Sec. 2 October 1, 2012 New section
9696 Sec. 3 October 1, 2012 New section
9797 Sec. 4 October 1, 2012 New section
9898 Sec. 5 October 1, 2012 New section
9999 Sec. 6 October 1, 2012 New section
100100 Sec. 7 October 1, 2012 New section
101101 Sec. 8 October 1, 2012 New section
102102 Sec. 9 October 1, 2012 New section
103103 Sec. 10 October 1, 2012 New section
104104
105105 This act shall take effect as follows and shall amend the following sections:
106106
107107 Section 1
108108
109109 October 1, 2012
110110
111111 New section
112112
113113 Sec. 2
114114
115115 October 1, 2012
116116
117117 New section
118118
119119 Sec. 3
120120
121121 October 1, 2012
122122
123123 New section
124124
125125 Sec. 4
126126
127127 October 1, 2012
128128
129129 New section
130130
131131 Sec. 5
132132
133133 October 1, 2012
134134
135135 New section
136136
137137 Sec. 6
138138
139139 October 1, 2012
140140
141141 New section
142142
143143 Sec. 7
144144
145145 October 1, 2012
146146
147147 New section
148148
149149 Sec. 8
150150
151151 October 1, 2012
152152
153153 New section
154154
155155 Sec. 9
156156
157157 October 1, 2012
158158
159159 New section
160160
161161 Sec. 10
162162
163163 October 1, 2012
164164
165165 New section
166166
167167 Statement of Purpose:
168168
169169 To expand the state Lemon Law to include boats in order to give boat owners the opportunity to have their money refunded if the purchased boat does not meet performance standards.
170170
171171 [Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]