§ 357-D:1 Intent. -
The legislature finds and declares that manufacturers, distributors
and importers of new motor vehicles should be obligated to provide
speedy and less costly resolution of automobile warranty problems.
Manufacturers should be required to provide in as expeditious a
manner as possible a refund of the consumer's purchase price, payments
to a lessor and lessee, or a replacement vehicle that is acceptable
to the consumer whenever the manufacturer is unable to make the
vehicle conform with its applicable warranty. New motor vehicle
dealers and used motor vehicle dealers cannot be sued under this
chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:2 Definitions. -
In this chapter:
I. "Board" means the New Hampshire new motor
vehicle arbitration board.
II. "Business day" means any day during which
the service departments of authorized dealers of the manufacturer
of the motor vehicle are normally open for business.
III. "Consumer" means the purchaser, other than
for purposes of resale of a new motor vehicle; the lessee of a new
motor vehicle, other than for the purpose of sublease; any person
to whom such motor vehicle is transferred during the duration of
an express warranty applicable to the motor vehicle; or any other
person entitled by the terms of the warranty to enforce the obligations
of the warranty. "Consumer" shall not include any governmental entity.
IV. "Distributor" means any person who sells
or distributes new or used motor vehicles to motor vehicle dealers
or who maintains distributor representatives within this state.
V. "Early termination costs" means expenses
and obligations incurred by a motor vehicle lessee as a result of
an early termination of a written lease agreement and surrender
of a motor vehicle to a manufacturer, including penalties for prepayment
of finance arrangements.
VI. "Factory branch" means any branch office
maintained by a manufacturer for the purpose of selling, leasing,
or offering for sale or lease, vehicles to a distributor or new
motor vehicle dealer or for directing or supervising, in whole or
in part, factory distributor representatives.
VII. "Lease" or "leased" means a written agreement
with a lessee which shall be for the use of a motor vehicle for
consideration for a term of 2 or more years.
VIII. "Lessee" means any consumer who leases
a motor vehicle pursuant to a written lease agreement for a term
of 2 or more years.
IX. "Manufacturer" means any person, resident
or nonresident, who manufactures or assembles new motor vehicles,
or imports for distribution through distributors of motor vehicles
or any partnership, firm, association, joint venture, corporation
or trust, resident or nonresident, which is controlled by a manufacturer.
The term "manufacturer" includes distributors and factory branches.
X. "Motor vehicle" means:
(a) A motor vehicle, as defined in RSA 259:60,
of the private passenger or station wagon type with a gross weight
not exceeding 9,000 pounds that is purchased or leased by a consumer;
or
(b) Any other 4-wheel motor vehicle with a gross
weight not exceeding 9,000 pounds, except tractors, off highway
recreational vehicles, and mopeds; or
(c) Motorcycles.
XI. "Motor vehicle dealer" means any person
engaged in the business of selling, offering to sell, leasing, soliciting
or advertising the sale of new or used motor vehicles or possessing
motor vehicles for the purpose of resale either on his own account
or on behalf of another, either as his primary business or incidental
thereto. However, "motor vehicle dealer" shall not include:
(a) Receivers, trustees, administrators, executors,
guardians, or other persons appointed by or acting under judgment,
decree or order of any court; or
(b) Public officers while performing their duties
as such officers.
XII. "Motor vehicle lessor" means a person who
holds title to a motor vehicle leased to a lessee under written
lease agreement for a term of 2 or more years, or who holds the
lessor's rights under such an agreement.
XIII. "New motor vehicle" means a passenger
motor vehicle which is still under the manufacturer's express warranty.
XIV. "Nonconformity" means a defect or condition
that substantially impairs the use, value or safety of a motor vehicle,
but does not include a defect or condition that results from an
accident, abuse, neglect, modification, or alteration of the motor
vehicle by persons other than the manufacturer or its authorized
service agent.
XV. "Warranty" includes express warranties as
defined in the Uniform Commercial Code, RSA 382-A, plus any written
warranty of the manufacturer.
§ 357-D:3 Enforcement of
Warranties. - I. Every new motor vehicle sold in this state
shall conform to all applicable warranties.
II. It shall be the manufacturer's obligation
under this chapter to insure that all new motor vehicles sold or
leased in this state conform with the manufacturer's express warranties.
The manufacturer may delegate responsibility to its agents or authorized
dealers provided, however, in the event the manufacturer delegates
its responsibility under this chapter to its agents or authorized
dealers, it shall compensate the dealer for all work performed by
the dealer in satisfaction of the manufacturer's responsibility
under this chapter.
III. If a new motor vehicle does not conform
to all applicable express warranties and the consumer reports the
nonconformity to the manufacturer, its agent or authorized dealer
during the term of the warranty, the manufacturer shall cause whatever
repairs are necessary to conform the vehicle to the warranties,
notwithstanding the fact that the repairs are made after the expiration
of a warranty term.
IV. A manufacturer, its agent or authorized
dealer shall not refuse to provide a consumer with a written repair
order and shall provide to the consumer, each time the consumer's
vehicle is brought in for examination or repair of a defect, a written
summary of the complaint and a fully itemized statement indicating
all work performed on the vehicle including, but not limited to,
examination of the vehicle, parts, and labor.
V. If, after a reasonable number of attempts,
the manufacturer, its agent or authorized dealer or its delegate
is unable to conform the motor vehicle to any express warranty by
repairing or correcting any defect or condition covered by the warranty
which substantially impairs the use, market value, or safety of
the motor vehicle to the consumer, the manufacturer shall, at the
option of the consumer within 30 days of the effective date of the
board's order, replace the motor vehicle with a new motor vehicle
from the same manufacturer, if available, of comparable worth to
the same make and model with all options and accessories with appropriate
adjustments being allowed for any model year differences or shall
accept return of the vehicle from the consumer and refund to the
consumer the full purchase price or to the lessee, in the case of
leased vehicles, as provided in paragraph IX. In those instances
in which a refund is tendered, the manufacturer shall refund to
the consumer the full purchase price as indicated in the purchase
contract and all credits and allowances for any trade-in or down
payment, license fees, finance charges, credit charges, registration
fees, and any similar charges and incidental and consequential damages
or, in the case of leased vehicles, as provided in paragraph IX.
Refunds shall be made to the consumer and lienholder, if any, as
their interests may appear, or to the motor vehicle lessor and lessee
as provided in paragraph IX. A reasonable allowance for use shall
be that amount directly attributable to use by the consumer prior
to the first repair attempt and shall be calculated by multiplying
the full purchase price of the vehicle by a fraction having as its
denominator 100,000, or for a motorcycle with an engine size of
250 cubic centimeters or smaller 20,000, or for a motorcycle with
an engine size greater than 250 cubic centimeters 40,000, and having
as its numerator the number of miles that the vehicle traveled prior
to the first attempt at repairing the vehicle.
VI. It shall be an affirmative defense to any
claim under this chapter that an alleged nonconformity does not
substantially impair the use, market value, or safety or that the
nonconformity is the result of abuse, neglect, or unauthorized modifications
or alterations of a motor vehicle by a consumer.
VII. It shall be presumed that a reasonable
number of attempts have been undertaken to conform a motor vehicle
to the applicable warranties if:
(a) The same nonconformity as identified in
any written examination or repair order has been subject to repair
at least 3 times by the manufacturer, its agent, or authorized dealer
within the express warranty term and the same nonconformity continues
to exist; or
(b) The vehicle is out of service by reason
of repair of one or more nonconformities, defects, or conditions
for a cumulative total of 30 or more business days during the term
of the express warranty. The term of any warranty and the 30-day
period shall be extended by any period of time during which repair
services were not available to the consumer because of war, invasion,
strike, fire, flood, or other natural disaster. If an extension
of time is necessitated due to these conditions, the manufacturer
shall provide for the free use of a vehicle to the consumer whose
vehicle is out of service. A vehicle shall not be deemed out of
service if it is available to the consumer for a major part of the
day.
VIII. In order for an attempt at repair to qualify
for the presumptions of this section, the attempt at repair shall
be evidenced by a written examination or repair order issued by
the manufacturer, its agent, or its authorized dealer. The presumptions
of this section shall only apply to 3 attempts at repair evidenced
by written examination or repair orders undertaken by the same agent
or authorized dealer, unless the consumer shows good cause for taking
the vehicle to a different agent or authorized dealer.
IX. In cases in which a refund is tendered by
a manufacturer for a leased motor vehicle under paragraph V, the
refund and rights of the motor vehicle lessor, lessee, and manufacturer
shall be in accordance with the following:
(a) The manufacturer shall provide to the lessee
the aggregate deposit and rental payments previously paid to the
motor vehicle lessor by the lessee, and incidental and consequential
damages, if applicable, minus a reasonable allowance for use. The
aggregate deposit shall include, but not be limited to, all cash
payments and trade-in allowances tendered by the lessee to the motor
vehicle lessor under the lease agreement. The reasonable allowance
for use shall be calculated by multiplying the aggregate deposit
and rental payments made by the lessee on the motor vehicle by a
fraction having as its denominator 100,000 or for a motorcycle 20,000,
and having as its numerator the number of miles that the vehicle
traveled prior to the first attempt to repair the vehicle.
(b) The manufacturer shall provide to the motor
vehicle lessor the aggregate of the following:
(1) The lessor's actual purchase cost, less
payments made by the lessee;
(2) The freight cost, if applicable;
(3) The cost for dealer or manufacturer-installed
accessories, if applicable;
(4) Any fee paid to another to obtain the lease;
(5) An amount equal to 5 percent of the lessor's
actual purchase cost as prescribed in subparagraph IX(b)(1). The
amount in this subparagraph shall be instead of any early termination
costs.
(c) The lessee's lease agreement with the motor
vehicle lessor and all contractual obligations shall be terminated
upon a decision of the board in favor of the lessee. The lessee
shall not be liable for any further costs or charges to the manufacturer
or motor vehicle lessor under the lease agreement.
(d) The motor vehicle lessor shall release the
motor vehicle title to the manufacturer upon the payment by the
manufacturer under the provisions of this section.
(e) The board shall give notice to the motor
vehicle lessor of the lessee's filing of a request for arbitration
under this chapter and shall notify the motor vehicle lessor of
the date, time and place scheduled for a hearing before the board.
The motor vehicle lessor shall provide testimony and evidence necessary
to the arbitration proceedings. Any decision of the board shall
be binding upon the motor vehicle lessor.
§ 357-D:4 Procedure to Obtain
Refund or Replacement. - I. After the third attempt at repair
or correction of the nonconformity, defect or condition, or after
the vehicle is out of service by reason of repair of one or more
nonconformities, defects or conditions for a cumulative total of
30 or more business days as provided in this chapter, the consumer
shall notify the manufacturer along with a clear and conspicuous
disclosure notice of the rights of the consumer under this chapter
at the time the new motor vehicle is delivered, of the nonconformity,
defect or condition and the consumer's election to proceed under
this chapter. The forms shall be made available by the manufacturer
to the New Hampshire new motor vehicle arbitration board, and any
other public or nonprofit agencies that shall request them. Forms
and notices shall be in a form prescribed by rule of the department
of justice and shall not include window stickers. The consumer shall,
in the notice, elect whether to use the dispute settlement mechanism
or the arbitration provisions established by the manufacturer or
to proceed under the New Hampshire new motor vehicle arbitration
board as established under this chapter. The consumer's election
of whether to proceed before the board or the manufacturer's dispute
settlement mechanism shall preclude his recourse to the method not
selected.
II. A consumer shall not pursue a remedy under
this chapter if he has discontinued financing or lease payments,
if the payments have been discontinued due to the manufacturer's
breach of obligation under this chapter or due to a breach of the
manufacturer's warranties.
III. A consumer who elects to proceed before
the board shall pay a filing fee of $ 50 and the manufacturer shall
pay a filing fee of $ 250. Such fees shall be retained by the department
of safety and used to defray costs associated with the work of the
board, including per diem costs of board members and any other administrative
expenses.
IV. Arbitration of the consumer's complaint,
either through the manufacturer's dispute settlement mechanism or
the board, shall be held within 40 days of receipt by the manufacturer
or the board and the manufacturer of the consumer's notice electing
the remedy of arbitration unless the consumer or the manufacturer
has good cause for an extension of time, not to exceed an additional
30-day period. If the extension of time is requested by the manufacturer,
the manufacturer shall provide free use of a vehicle to the consumer
if the consumer's vehicle is out of service. In the event the consumer
elects to proceed in accordance with the manufacturer's dispute
settlement mechanism and the arbitration of the dispute is not held
within 40 days of the manufacturer's receipt of the consumer's notice
and the manufacturer is not able to establish good cause for the
delay, the consumer shall be entitled to receive the relief requested
under this chapter.
V. Within the 40-day period set forth in paragraph
IV, the manufacturer shall have one final opportunity to correct
and repair the defect which the consumer claims entitles him to
a refund or replacement vehicle. If the consumer is satisfied with
the corrective work done by the manufacturer or his delegate, the
arbitration proceedings shall be terminated without prejudice to
the consumer's right to request that arbitration be recommended
as provided in RSA 357-D:11, I(b) if the repair proves unsatisfactory.
VI. The manufacturer shall refund the reasonable
allowance provided for in RSA 357-D:3, V or IX, or make the replacement
required by the board within 30 days of a decision of the board
or within 15 days of final adjudication.
§ 357-D:5 New Motor Vehicle
Arbitration Board Established; Administrative Attachment; Rulemaking;
Decisions. - I. There is created a New Hampshire new motor
vehicle arbitration board consisting of 5 members and 3 alternate
members to be appointed by the governor and council. Terms of members
shall be for 3 years. Board members may be appointed for no more
than 2 terms. One member and one alternate of the board shall be
new car dealers in New Hampshire, one member and one alternate shall
be persons knowledgeable in automobile mechanics, and 3 members
and one alternate shall be persons who represent consumers and have
no direct involvement in the design, manufacture, distributions,
sales or service of motor vehicles or their parts. Three members
of the board shall constitute a quorum. Members shall be paid $50
per diem plus mileage.
II. The board shall be administratively attached
to the department of safety under RSA 21-G:10.
III. The board shall adopt rules, pursuant to
RSA 541-A, to implement the provisions of this chapter.
IV. The board shall hold a hearing within 40
days of receipt of a complaint, unless an extension of time has
been granted by the board under RSA 357-D:4, IV, and shall render
a decision within 30 days of the conclusion of a hearing. The board
shall have the authority to issue only damages as are provided by
this chapter.
§ 357-D:6 Appeal From Board's
Decision. - I. The decision of the board shall be final and
shall not be modified or vacated unless, on appeal to the superior
court, a party to the arbitration proceeding proves, by clear and
convincing evidence, that:
(a) The award was procured by corruption, fraud
or other undue means.
(b) There was evident partiality by the board
or corruption or misconduct by the board prejudicing the rights
of any party.
(c) The board exceeded its powers.
(d) The board refused to postpone a hearing
after being shown sufficient cause to do so, refused to hear evidence
material to the controversy, or otherwise conducted the hearing
contrary to the rules adopted by the board so as to prejudice substantially
the rights of a party.
II. A party to the arbitration proceeding shall
not pursue an appeal until a final decision has been rendered by
the board. Any appeal shall be filed with the superior court within
30 days of the date of the written board decision.
§ 357-D:7 Unfair and Deceptive
Acts and Practices. - Failure of the manufacturer or distributor
to comply with a decision of the board shall constitute an unfair
or deceptive act or practice under RSA 358-A:2.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:8 Dealer's Liability.
- Nothing in this chapter imposes any liability on a franchised
motor vehicle dealer or creates a cause of action by a consumer
against a dealer, except for written express warranties made by
the dealer apart from the manufacturer's warranties. A dealer shall
not be made a party defendant in any action involving or relating
to this chapter, except as provided in this section. The manufacturer
shall not charge back or require reimbursement by the dealer for
any costs, including, but not limited to, any refunds or vehicle
replacements, incurred by the manufacturer arising from this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:9 Notification to
Consumers; Rulemaking by Department of Justice. - Beginning
with the model year following July 1, 1992, the manufacturer of
every motor vehicle sold in this state shall provide a clear and
conspicuous written notice of the consumer's rights under this chapter
as provided under RSA 357-D:4 at the time of the delivery of every
such new motor vehicle in this state. The manufacturer shall provide
the consumer with a self-addressed notice in a form developed in
accordance with rules adopted by the department of justice under
RSA 541-A and sufficient to notify the manufacturer of the consumer's
election to proceed under this chapter. The manufacturer shall not
delegate this responsibility to its authorized dealers. The manufacturer
of every new motor vehicle sold in this state shall also provide
a clear and conspicuous notice that informs consumers of their rights
under this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:10 Costs and Attorney's
Fees. - In any action by a consumer against the manufacturer
or distributor of a motor vehicle based upon the alleged breach
of an express warranty made in connection with the sale or lease
of such motor vehicle, the court, in its discretion, may award to
the plaintiff costs and reasonable attorney's fees. If the court
determines that the action was brought with no substantial justification,
it may award costs and reasonable attorney's fees to the defendant.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:11 Limitations on
Actions. - I. Any proceeding initiated under the provisions
of this chapter shall be commenced within one year following the
later of:
(a) The expiration of the express warranty term;
or
(b) The manufacturer's final repair attempt
of the nonconformity, as provided in RSA 357-D:4, V which gave rise
to the consumer's request that the vehicle be replaced or the money
refunded.
II. Nothing in this chapter shall in any way
limit the rights or remedies which are otherwise available to a
consumer under any other provision of law.
Source. 1994, 220:7, eff. Jan. 1, 1995.
§ 357-D:12 Sale of Defective
Motor Vehicles. - I. For purposes of this section "a serious
safety defect" means a life-threatening malfunction or nonconformity
that impedes the consumer's ability to control or operate the motor
vehicle for ordinary use or reasonable intended purposes or creates
a risk of fire or explosion.
II. Any manufacturer or its agent or authorized
dealer is prohibited from reselling in New Hampshire any vehicle
determined or adjudicated by the board as having a serious safety
defect.
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