MASSACHUSETTS LEMON LAW:
Massachusetts Lemon Law
Chapter 90: Section 7N - Voiding contracts of sale.
Section 7N. Notwithstanding any disclaimer of warranty, a motor vehicle contract
of sale may be voided by the buyer if the motor vehicle fails to pass, within
seven days from the date of such sale, the periodic staggered inspection at an
inspection station licensed pursuant to section seven W; provided, that the
defects which are the reasons for the failure to issue a certificate of
inspection were not caused by the abusive or negligent operation of the motor
vehicle or by damage resulting from an accident or collision occurring after the
date of the sale; and provided, further, that the cost of repairs necessary to
permit the issuance of a certificate of inspection exceeds ten per cent of the
purchase price of the motor vehicle.
In order to void a motor vehicle sale under this section the buyer shall, within
fourteen days from the date of sale, notify the seller of his intention to do
so, deliver the motor vehicle to the seller, provide the seller with a written
statement signed by an authorized agent of such inspection station stating the
reasons why the motor vehicle failed to pass the safety or combined safety and
emissions inspection and an estimate of the cost of necessary repairs. The buyer
shall be entitled to a refund of his purchase price unless the buyer and seller
agree in writing that the seller may make the necessary repairs at his own cost
and expense within a reasonable period of time thereafter. This section shall
apply only to motor vehicles purchased for the immediate personal or family use
of the buyer.
Chapter 90: Section 7N¼ - Express warranty by dealer of used motor vehicle;
issuance; consumer's rights and remedies.
Section 7N¼ (1) For the purposes of this section the following words shall have
the following meanings:--
"Business day", Monday to Friday, inclusive, except for state or federal
holidays.
"Consumer", a buyer, other than for purposes of resale, of a motor vehicle, any
person to whom such motor vehicle is transferred during the period of any
express or statutory warranty under this section applicable to such motor
vehicle, and any other person entitled by the terms of such warranty to enforce
its obligations.
"Dealer", any person engaged in the business of selling, offering for sale, or
negotiating the retail sale of used motor vehicles or selling motor vehicles as
broker or agent for another, including the officers, agents and employees of
such person and any combination or association of dealers, but not including a
bank or other financial institution, or the commonwealth, its agencies, bureaus,
boards, commissions, authorities, nor any of its political subdivisions. A
person shall be deemed to be engaged in the business of selling used motor
vehicles if such person has sold more than three used motor vehicles in the
preceding twelve months.
"Motor vehicle" or "vehicle", any motor vehicle as defined in section one, sold
or replaced by a dealer or manufacturer, except that it shall not include auto
homes, vehicles built primarily for off-road use or any vehicle used primarily
for business purposes.
"Private seller", any person who is not a dealer and who offers to sell or sells
a used motor vehicle to a consumer.
"Purchase price", the total of all payments made for the purchase of a vehicle,
including but not limited to any finance charges, registration fees, payments
made for credit life, accident, health, and damage insurance, and collision and
related comprehensive insurance coverages and service contracts and the value of
a trade-in.
"Repurchase price", the purchase price, as defined above, less any cash award
that was made by the dealer in an attempt to resolve the dispute and was
accepted by the consumer, and less any refunds or rebates to which the consumer
is entitled, plus any incidental damages not previously reimbursed, including
but not limited to the reasonable costs of towing from point of breakdown up to
thirty miles to obtain required repairs or to return the vehicle under this
section, and the reasonable costs of obtaining alternative transportation during
the applicable warranty period after the second day following each such
breakdown not to exceed fifteen dollars vehicle rental charges for each day in
which the cost of such alternative transportation is reimbursable.
"Used motor vehicle" or "used vehicle", any vehicle driven more than the limited
use necessary in moving or road testing a new vehicle prior to delivery to a
consumer, including a demonstrator vehicle, except that it shall not include
auto homes, vehicles built primarily for off road use, motorcycles, or any
vehicle used primarily for business purposes.
(2)
(A)
(i) No used motor vehicle shall be sold in the commonwealth by a dealer to a
consumer unless accompanied by an express written warranty covering the full
cost of both parts and labor necessary to repair any defect that impairs the
said used motor vehicle's safety or use; provided, however, that the consumer
may be required to pay no more than one hundred dollars total toward the repair
of any covered defect, series of defects or combination of defects during the
warranty period. Defects that affect only appearance shall not be deemed to
impair safety or use for the purposes of this section. For the purposes of this
section, defect shall include defect, malfunction or any combination or defects
or malfunctions.
(ii) Defects or malfunctions which involve parts or components that are covered
or are warranted under an express warranty issued by the dealer of the used
motor vehicle shall be excluded from this section if the following conditions
have been met: the manufacturer's warranty has been duly assigned or transferred
to the buyer; is enforceable according to its terms; is not inconsistent with
this section; and, the seller has assured that the repair authorized by such
manufacturer's express warranty was made.
The terms of the seller's warranty shall be tolled for any period of time the
used motor vehicle is out of service by reason of repair under the
manufacturer's warranty.
(B) The express warranties required by this section shall be of the following
durations:
(i) For a used motor vehicle which, at the time of sale, has been operated less
than forty thousand miles, ninety days or three thousand seven hundred and fifty
miles, whichever occurs first. Said ninety days or three thousand seven hundred
and fifty mile warranty is in addition to any right the consumer may have under
section seven N?.
(ii) For a used motor vehicle which, at the time of sale, has been operated
forty thousand miles or more, but less than eighty thousand miles, sixty days or
two thousand five hundred miles, whichever first occur.
(iii) For a used motor vehicle which, at the time of sale, has been operated
eighty thousand miles or more, but less than one hundred and twenty-five
thousand miles, thirty days or one thousand two hundred and fifty miles,
whichever first occur.
(iv) If the used motor vehicle's true mileage is not known, such warranty period
shall be determined by the age of said used motor vehicle in the following
manner: a used motor vehicle three years old or less shall have a warranty as
provided in clause (i); a used motor vehicle more than three, but less than six
years old, shall have a warranty as provided in clause (ii); and a used motor
vehicle six years old or more shall have a warranty as provided in clause (iii).
A used motor vehicle's age shall be determined by subtracting its model year
from the year in which the warranty holder purchased said used vehicle.
(C) The warranty periods established by this section shall be tolled during any
period in which the used motor vehicle is out of service as a result of any
repair attempt pursuant to any warranty created by this section. The applicable
warranty period shall be extended thirty days from the date of completion of any
repair required by this section as to the defect repaired if the warranty would
otherwise have expired during such period.
(3)
(A) A dealer may repair, within the meaning of this section, either by
performing the repair himself or by arranging and making payment for prompt
repair by another.
(i) A consumer shall return a vehicle for repair under this section by
presenting it to the dealer no later than five business days after the
expiration of the applicable warranty period and informing him of the defect.
Said return period shall be tolled during any time period in which the consumer
has notified the dealer of the defect but cannot reasonably present the vehicle
to the dealer; including, but not limited to, the reason that a used motor
vehicle is inoperable and the dealer refuses to pay the charge to tow said
vehicle. The dealer shall immediately accept return of a vehicle when it is so
presented. Said used motor vehicle shall be deemed out of service commencing the
day it is so presented, notwithstanding any dealer's failure to accept its
return on said day. During the applicable warranty period and the aforesaid
return period, the dealer shall pay the reasonable costs of towing from point of
breakdown up to thirty miles to obtain required repairs or to return the vehicle
to the dealer.
Upon return of the used motor vehicle to the consumer after repair, the dealer
shall provide the consumer with a warranty repair receipt describing (a) the
defect complained of, (b) the work performed in an attempt to correct such
defect and the identity of the repairer if it is not the dealer, and (c) the
parts replaced in performing such work. For the dealer to toll the ten business
day period as provided in clause (ii) of this paragraph said dealer shall attach
to each such warranty repair receipt copies of such order forms, invoices,
receipts or other evidence of a parts order and its receipt to evidence his
compliance with this paragraph.
(ii) If the dealer fails to repair the same defect within three attempts, or if
the used motor vehicle is out of service for more than a cumulative total of ten
business days after the consumer has returned it to the dealer for repair of the
same, then the dealer shall accept return of the vehicle from the consumer and
refund the full repurchase price, less a reasonable allowance for use. A
reasonable allowance for use shall be fifteen cents for each mile the used motor
vehicle has been operated between its sale and the dealer's repurchase.
A consumer shall have the option of retaining the use of any vehicle returned
under the provisions of this section until such time as said consumer has been
tendered a full refund. The use of any vehicle retained by a consumer after its
return to a manufacturer under the provisions of this section, shall, in
instances in which a refund is tendered, be reflected in the above-mentioned
reasonable allowance for use.
A used motor vehicle shall not be considered out of service for purposes of the
ten business-day period described hereinabove for any day in which a part
necessary to repair a defect complained of is not in the dealer's possession;
provided, however, that the dealer has ordered the part by reasonable means on
the same day on which he knew or should have known that the part was necessary,
except that in no event shall a part's unavailability operate to toll the ten
business-day period for more than twenty-one days. The applicable warranty
period shall be extended by the number of days a part is unavailable.
(iii) All dealers shall submit to state-certified, used car arbitration, if such
arbitration is requested by the consumer, asserting his or her right to a
repurchase under this section, within six months from the date of original
delivery to such consumer of a used motor vehicle. State-certified, used car
arbitration shall be performed by a professional arbitrator or arbitration firm
appointed by the secretary of consumer affairs and business regulation and
operating in accordance with the regulations promulgated pursuant to this
section, and shall result in a written finding of whether the motor vehicle in
dispute meets the standards set forth by this section for vehicles that are
required to be repurchased. Said finding shall be issued within forty-five days
of receipt by said secretary of a request by a consumer for state-certified
arbitration under this section. Said secretary shall promulgate rules and
regulations governing the proceedings of state-certified, used car arbitration
which shall promote their fairness and efficiency. Such rules and regulations
shall include, but not be limited to, a requirement of the personal objectivity
of each such arbitrator, and the protection of the right of each party to
present its case and to be in attendance during any presentation made by the
other party.
If a motor vehicle is found by state-certified, used car arbitration to have met
the standards set forth by this section for vehicles required to be repurchased,
and if the dealer who sold said motor vehicle is found to have failed to provide
said refund as required, such dealer shall, within twenty-one days from the
issuance of such finding, deliver such refund, including the incidental and
other costs set forth in the definition of "repurchase price" or appeal the
finding in a district or superior court. No such appeal by a dealer shall be
heard unless the petition for such appeal is filed with the clerk of the
district or superior court within twenty-one days of issuance of the finding of
the state-certified arbitration and is accompanied by a bond in a principal sum
equal to the money award made by the state-certified arbitrator plus five
hundred dollars for anticipated attorneys' fees, secured by cash or its
equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall
not limit or impair any right of recovery otherwise available pursuant to law,
nor shall the amount of the bond be relevant in determining the amount of
recovery to which the consumer shall be entitled.
Upon an appeal, the court shall vacate the award only if:
(a) the award was procured by corruption, fraud or other undue means;
(b) there was evident partiality by an arbitrator or corruption in any of the
arbitrators, or misconduct prejudicing the rights of any party; or
(c) the arbitrators exceeded their powers.
In addition to any other rights and remedies, any consumer dissatisfied with any
finding of state-certified, used car arbitration shall have the right to file a
claim pursuant to chapter ninety-three A.
In addition to any other recovery, any prevailing consumer shall be awarded
reasonable attorneys' fees and costs.
Whoever, within twenty-one days of any finding in favor of the consumer of the
state-certified, used car arbitration, fails to appeal such finding and does not
deliver a refund shall be punished by a fine of fifty dollars per day until the
delivery of such refund. Said fine shall not exceed five hundred dollars for
each such violation. The amount of said fine shall begin to accumulate on the
twenty-second day following the arbitration decision. If eighty-one days has
elapsed from the issuance of a finding in favor of the consumer of the
state-certified, used car arbitration, and no appeal has been taken and no award
delivered and no fine paid, the attorney general shall initiate proceedings
against dealer for failure to pay said fine. The proceedings initiated pursuant
to the provisions of this section shall be commenced in superior court
department of the trial court.
In addition to the remedies hereinbefore provided, the attorney general may
bring an action on behalf of the commonwealth to restrain further violation of
this section, to enforce any provision, and for such other relief as may be
appropriate.
(iv) At any time within the applicable warranty period and after a consumer has
complained of a defect, notwithstanding any objection from the consumer, the
dealer shall have the option of repurchasing a used vehicle and refunding the
full repurchase price, less a reasonable allowance for use. A reasonable
allowance for use shall be fifteen cents for each mile the used motor vehicle
had been operated between its sale and the dealer's repurchase.
(v) If the dealer is required to or elects to repurchase a vehicle under the
terms of this section, the consumer and dealer shall cooperate with each other
to execute all necessary documents in order to clear the title of any
encumbrances on the repurchased vehicle.
(B) It shall be an affirmative defense to any claim under this section that an
alleged defect (i) does not impair the vehicle's use or safety, (ii) is the
result of owner negligence, abuse, damage caused by accident, vandalism, or, an
attempt to repair the vehicle by a person other than the dealer, the dealer's
designee, or the manufacturer's representative under clause (ii) of paragraph
(A) of subsection (2), (iii) is the result of any attempt by the consumer to
modify the vehicle, (iv) was covered or warranted under an express warranty
issued by the manufacturer of such used motor vehicle, that such warranty issued
by the manufacturer of such used motor vehicle was in effect during the warranty
period established by this section, so long as the conditions in said clause
(ii) of said paragraph (A) of said subsection (2) are met.
(4) Clear and conspicuous notice of the warranties created by this section, of
the rights pertaining thereto, and of the implied warranty of merchantability
shall be given to the consumer in writing at the time the consumer purchases a
used motor vehicle from the dealer. Failure to provide such notice shall toll
the warranty periods under this section until such notice is given.
(5) The secretary of consumer affairs and business regulation shall promulgate
rules and regulations to implement the notice provisions of this section. Said
rules and regulations shall include the establishment of wording, format,
placement, and distribution of all notices specified in this section. In her
discretion, and in order to facilitate ease of understanding by consumers, said
secretary may consolidate the notices required by this section and any other
notices pertaining to the purchase of motor vehicles; provided, however, that
such consolidation does not render the notices inconsistent with any of the
provisions of this section or any other law. Each notice required by this
section shall describe the procedures available to redress violations of this
section and shall contain the telephone number of the attorney general's
consumer protection division complaint section and the executive office of
consumer affairs and business regulation.
(6) A dealer's failure to comply with any of the provisions of this section
shall constitute an unfair or deceptive act under the provisions of chapter
ninety-three A.
(7) Notwithstanding any provisions of law to the contrary, this section shall
not apply to any used motor vehicle sold by a dealer to a consumer for less than
seven hundred dollars.
(8) A private seller shall clearly disclose to any prospective buyer, before the
sale is completed, all defects the seller knows of which impair the used motor
vehicle's safety or substantially impair its use. Failure to so disclose known
defects shall entitle the buyer, within thirty days after the sale, to rescind
the sale and be entitled to return of all monies paid to the seller less a
reasonable amount for use as defined in clause (iv) of paragraph (A) subsection
(3). In any subsequent action by a buyer under this section, if the court finds
that the settlement offer was unreasonable in light of the circumstances or that
the private seller has otherwise failed to comply with the requirements of this
subsection, in addition to damages, it shall award the buyer reasonable
attorneys' fees and costs; if the court finds that the buyer's action was
frivolous or not in good faith, it shall award the seller reasonable attorneys'
fees and costs. It shall be an affirmative defense in any such action that an
alleged defect does not impair the vehicle's safety, or substantially impair its
use, or that it is the result of the buyer's negligence, abuse, damage caused by
accident, vandalism or attempt to modify the vehicle.
(9) Nothing in this section shall be construed in any way to limit the
enforceability of any implied warranties created by law, any rights created by
section seven N or seven N?, or chapter ninety-three A or any rules and
regulations promulgated pursuant thereto, or express warranties given by a
dealer in connection with the sale of a used motor vehicle, or any other rights
or remedies available to consumers under applicable law.
(10) If a consumer is eligible for relief under the provisions of section seven
N?, to have repairs effected or other relief provided under the provisions of an
express warranty covering such used motor vehicle issued by the manufacturer of
such used motor vehicle, said consumer shall make reasonable effort in
accordance with the terms and conditions thereof to obtain such relief or
repairs before seeking enforcement of rights under this section. If the
consumer, notwithstanding his eligibility to do so, is unable to enforce rights
under said section seven N? or under such express warranty and the dealer
provides such relief or, in accordance with the provisions of this section,
repurchases such used motor vehicle, the dealer shall be subrogated to the
rights of such consumer against such manufacturer under the provisions of said
section seven N?, such express warranty and otherwise in accordance with
applicable law, and may enforce the same in his name in the superior court or
district court department. Such manufacturer shall hold the dealer harmless from
and against all damages, liabilities, losses and reasonable expenses of suit,
including reasonable attorneys' fees arising out of or incurred by the dealer by
its compliance with the provisions of this section if such manufacturer, having
been notified in writing by the dealer that such rights have been asserted by a
consumer, fails to resolve the same at its own expense in or within seven
business days.
(11) The licensing authorities responsible pursuant to section fifty-nine of
chapter one hundred and forty for licensing used motor vehicle dealers shall
distribute copies of this section to each dealer licensed at any time a license
is granted or renewed.
(12) The provisions of this section shall not apply to the sale of a leased
vehicle by a lessor to the lessee of said vehicle, a family member or employee
of said lessee or to the sale of a used motor vehicle by an employer to his
employee.
(13) Any action brought pursuant to this section shall be commenced within two
years of the date of original delivery of the used motor vehicle to the
consumer. (Added by 1987, 289, Sec. 1.)
Chapter 90: Section 7N½ Defective or malfunctioning new motor vehicles; sale and
repair or replacement.
Section 7N½. (1) For purposes of this section the following terms shall have the
following meanings:
"Business day", any day during which the service departments of authorized
dealers of the manufacturer of the motor vehicle are normally open for business.
"Consumer", a buyer or lessee, other than for purposes of resale, of a motor
vehicle, any person to whom such motor vehicle is transferred during the
duration of any express or implied warranty applicable to such motor vehicle,
and any other person entitled by the terms of such warranty to enforce its
obligations.
"Dealer", any class one seller of motor vehicles as defined in section
fifty-eight of chapter one hundred and forty.
"Lessee", any person who acquires the right to possession of and use of a motor
vehicle under a lease agreement for a term of not less than one year.
"Manufacturer", any person who is engaged in the business of manufacturing motor
vehicles, or, in the case of motor vehicles not manufactured in the United
States, any person who is engaged in the business of importing motor vehicles.
"Motor vehicle" or "vehicle", any motor vehicle as defined in section one sold,
leased or replaced by a dealer or manufacturer after the effective date of this
section, except that it shall not include auto homes, vehicles built primarily
for off-road use or any vehicle used primarily for business purposes.
"Nonconformity", any specific or generic defect or malfunction, or any
concurrent combination of such defects or malfunctions that substantially
impairs the use, market value or safety of a motor vehicle.
"Term of protection", one year or fifteen thousand miles of use from the date of
original delivery of a new motor vehicle, whichever comes first; or, in the case
of a replacement vehicle provided by a manufacturer to a consumer under this
section, one year or fifteen thousand miles from the date of delivery to the
consumer of said replacement vehicle, whichever comes first.
(2) If a motor vehicle does not conform to any applicable express or implied
warranty, and the consumer reports the nonconformity to the manufacturer of the
vehicle, its agent or its authorized dealer during the term of protection, the
manufacturer, its agent or its authorized dealer shall effect such repairs as
are necessary to conform the vehicle to such warranty.
If the manufacturer, its agent or authorized dealer does not conform the motor
vehicle to any such applicable express or implied warranty by curing any
nonconformity after a reasonable number of attempts, the manufacturer shall
accept return of the vehicle from the consumer. In instances in which a vehicle
is sold and subsequently returned, the manufacturer shall refund the full
contract price of the vehicle including all credits and allowances for any
trade-in vehicle, less any cash award that was made by the manufacturer in an
attempt to resolve the dispute and was accepted by the consumer, and a
reasonable allowance for use, or shall offer to replace the vehicle. In
instances in which a vehicle is leased and subsequently returned, the
manufacturer shall refund all payments made by the consumer to the manufacturer
under the terms of the lease agreement less any cash award that was made by the
manufacturer in an attempt to resolve the dispute and was accepted by the
consumer, and a reasonable allowance for use, or shall offer to replace the
vehicle. The consumer shall have an unqualified right to reject a manufacturer's
offer of replacement and demand a refund. In instances in which a vehicle is
replaced by a manufacturer under the provisions of this section, said
manufacturer shall reimburse the consumer for any fees for the transfer of
registration or any sales tax incurred by the consumer as a result of such
replacement. In instances in which a leased vehicle is replaced by a
manufacturer under the terms of this section, an identical model vehicle shall
be provided to the consumer for the remaining term of the original lease
agreement. In instances in which a vehicle which was financed by the
manufacturer or its subsidiary or agent is replaced under the provisions of this
section, said manufacturer, subsidiary or agent shall not require the consumer
to enter into any refinancing agreement which would create any financial
obligations upon such consumer beyond those implied by the original financing
agreement. In instances in which a vehicle which was leased from a dealer or
manufacturer is replaced under the provisions of this section, said dealer or
manufacturer shall not require the consumer to enter into any lease agreement
which would create any financial obligations upon such consumer beyond those
implied by the original lease agreement. In instances in which a refund is
tendered under the provisions of this section, the manufacturer shall also
reimburse the consumer for incidental costs including sales tax, registration
fee, finance charges and any cost of options added by an authorized dealer.
Whenever a vehicle is replaced a refund is given under the provisions of this
section, in instances in which towing services and rental vehicles were not made
available at no cost to the consumer, the manufacturer shall also reimburse the
consumer for towing and reasonable rental costs that were a direct result of
vehicle nonconformity. Refunds shall be made to the consumer and lienholder, if
any, as their interests may appear. A reasonable allowance for use for all motor
vehicles other than motorcycles shall be obtained by multiplying the total
contract price of the vehicle, or in the case of a leased vehicle the total
amount of payments made by the consumer to the manufacturer under the terms of
the lease agreement, by a fraction having as its denominator one hundred
thousand and having as its numerator the number of miles that vehicle traveled
prior to the manufacturer's acceptance of its return. A reasonable allowance for
use for motorcycles shall be obtained by multiplying the total contract price of
the motorcycle by a fraction having as its denominator twenty-five thousand and
having as its numerator the number of miles that the vehicle traveled prior to
the manufacturer's acceptance of its return.
It shall be an affirmative defense to any claim under this section: (i) that an
alleged nonconformity does not substantially impair the use, market value or
safety of the vehicle; (ii) that a nonconformity is the result of owner
negligence, damage caused by accident, vandalism, or attempt to repair the
vehicle by a person other than the manufacturer, its agent or authorized dealer;
or (iii) that a nonconformity is the result of any attempt substantially to
modify the vehicle which was not authorized by the manufacturer.
A consumer shall have the option of retaining the use of any vehicle returned
under the provisions of this section until such time as said consumer has been
tendered a full refund or a replacement that is acceptable to the consumer. The
use of any vehicle retained by a consumer after its return to a manufacturer
under the provisions of this section, shall, in instances in which a refund is
tendered, be reflected in the above mentioned reasonable allowance for use.
(4) A reasonable number of attempts shall be deemed to have been undertaken to
conform a motor vehicle to any applicable express or implied warranties if (a)
the same nonconformity has been subject to repair three or more times by the
manufacturer or its agents or authorized dealers within the term of protection,
but such nonconformity continues to exist or such nonconformity has recurred
within the term of protection, or (b) the vehicle is out of service by reason of
repair of any nonconformity for a cumulative total of fifteen or more business
days during the term of protection; provided, however, that the manufacturer
shall be afforded one additional opportunity, not to exceed seven business days,
to cure any nonconformity arising during the term of protection, notwithstanding
the fact that such additional opportunity to cure commences after the term of
protection. Such additional opportunity to cure shall commence on the day the
manufacturer first knows or should have known that the limits specified in
clause (a) or (b) have been met or exceeded. The term of protection, said
fifteen business day period and said additional opportunity to cure shall be
extended by any period of time during which repair services are not available to
the consumer as a direct result of a war, invasion, fire, flood or other natural
disaster. The term of protection, said fifteen business day period and said
additional opportunity to cure shall also be extended by that period of time
during which repair services are not available as a direct result of a strike;
provided, however, that the manufacturer, its agent, or authorized dealer
provides or makes provision for the free use of a vehicle to any consumer whose
vehicle is out of service by reason of repair during a strike. The burden shall
be on the manufacturer to show that any event claimed as a reason for an
extension under the provisions of this paragraph was the direct cause for the
failure of the manufacturer, its agent or authorized dealer to cure any
nonconformity during the time of said event. Extensions for concurrent events
shall not be cumulative.
(5) Nothing in this section shall be construed as imposing any liability on an
authorized dealer or creating any cause of action by a consumer against a dealer
under the provisions of this section.
Nothing in this section shall be construed to limit the rights or remedies which
are otherwise available to a consumer or manufacturer under any other applicable
provision of law.
Nothing in this section shall be construed as imposing any liability on a dealer
or creating a cause of action by a manufacturer against its authorized dealer
under this section except with respect to (i) failure by an authorized dealer to
properly effect preparation, installation of options or repairs when such
preparation, installation of options or repairs would have prevented the
occurrence of or cured a nonconformity; (ii) express warranties offered by an
authorized dealer which exceed the provisions of the manufacturer's express
warranties; and (iii) that portion of the cost of reimbursing a consumer for
dealer-added options which represents the dealer profit from the addition of
such options. The manufacturer shall reimburse its authorized dealer for all
incidental and consequential damages, including attorney's fees, incurred by
such dealer as a direct result of any legal action brought by a consumer under
this section.
No consumer shall be required by any manufacturer, its agent or its authorized
dealer to give notice directly to a manufacturer of the existence of any
nonconformity before resorting to state-certified, new car arbitration.
No motor vehicle that is returned to the manufacturer under the provisions of
this section shall be resold in the commonwealth without clear and conspicuous
written disclosure of the fact that it was so returned prior to resale of the
vehicle. The attorney general shall prescribe the exact form and content of any
such disclosure statement.
(6) All manufacturers shall submit to state-certified, new car arbitration, if
such arbitration is requested by the consumer within eighteen months from the
date of original delivery to such consumer of a new motor vehicle.
State-certified, new car arbitration shall be performed by a professional
arbitrator or arbitration firm appointed by the secretary of consumer affairs
and business regulation and operating in accordance with the regulations
promulgated pursuant to this section, and shall result in a written finding of
whether the motor vehicle in dispute meets the standards set forth by this
section for vehicles that are required to be replaced or refunded. Said finding
shall be issued within forty-five days of receipt by said secretary of a request
by a consumer for state-certified arbitration under this section. Said secretary
shall promulgate rules and regulations governing the proceedings of
state-certified, new car arbitration which shall promote their fairness and
efficiency. Such rules and regulations shall include, but not be limited to, a
requirement of the personal objectivity of each arbitrator in the results of the
dispute he will hear, and the protection of the right of each party to present
its case and to be in attendance during any presentation made by the other
party. All findings of fact issuing from a state-certified, new car arbitration
shall be taken as prima facie evidence of whether the standards set forth in
this section for vehicles required to be refunded or replaced have been met in
any subsequent action brought by either party ensuing from the matter considered
in said arbitration.
If a motor vehicle is found by state-certified, new car arbitration to have met
the standards set forth by this section for vehicles required to be replaced or
refunded, and if the manufacturer of said motor vehicle is found to have failed
to provide said refund or replacement as required, such manufacturer shall,
within twenty-one days from the issuance of such finding, deliver such refund or
replacement, including the incidental and other costs set forth in subsection
(3), or appeal the finding in superior court. No appeal by a manufacturer shall
be heard unless the petition for such appeal is filed with the clerk of the
superior court within twenty-one days of issuance of the finding of the
state-certified arbitration and is accompanied by a bond in a principal sum
equal to the money award made by the state-certified arbitrator plus two
thousand five hundred dollars for anticipated attorneys' fees, secured by cash
or its equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall
not limit or impair any right of recovery otherwise available pursuant to law,
nor shall the amount of the bond be relevant in determining the amount of
recovery to which the consumer shall be entitled. In the event that any
state-certified arbitration, resulting in an award of a refund or replacement,
is upheld by the court, recovery by the consumer shall include continuing
damages in the amount of twenty-five dollars per day for each day, subsequent to
the day the motor vehicle was returned to the manufacturer pursuant to
subsection three, that said vehicle was out of use as a direct result of any
nonconformity not issuing from owner negligence, accident, vandalism, or any
attempt to repair or substantially modify the vehicle by a person other than the
manufacturer, its agent or authorized dealer; provided, however, that the
manufacturer did not make a comparable vehicle available to the consumer free of
charge. In addition to any other recovery, any prevailing consumer shall be
awarded reasonable attorneys' fees and costs. If the court finds that the
manufacturer did not have any reasonable basis for its appeal or that the appeal
was frivolous, the court shall double the amount of the total award made to the
consumer. Any consumer dissatisfied with any finding of state-certified, new car
arbitration shall have the right to file a claim pursuant to chapter
ninety-three A.
(6A) A clear and conspicuous listing of the rights of the consumer under this
section shall be affixed by a sticker to a window of each new motor vehicle
offered for sale or lease in the commonwealth. An enumeration of these rights
shall also be provided along with ownership manual materials. The form and
manner of these notices shall be prescribed by the secretary of consumer affairs
and business regulations.
(7) Failure to comply with any of the provisions of this section shall
constitute an unfair or deceptive act under the provisions of chapter
ninety-three A. The failure of a manufacturer either to abide by the decision of
a state-certified arbitration or to file a timely appeal shall entitle any
prevailing consumer to an award of no less than two times the actual damages,
unless said manufacturer can prove that such failure was beyond his control. For
the purposes of said chapter ninety-three A, the timely delivery by a
manufacturer of a refund or acceptable replacement, pursuant to a finding by
state-certified arbitration, shall constitute the granting of relief upon
demand.
The secretary of consumer affairs and business regulation shall inform the
office of the attorney general of any method, act or practice of which she is
aware that is deemed by her to be a violation of any provision of this section.
(8) Whoever, within twenty-one days of any finding in favor of the consumer of
the state-certified, new car arbitration, fails to appeal such finding and does
not deliver a refund or replacement vehicle or notify the consumer of the
estimated delivery date of the replacement vehicle, shall be punished by a fine
of five thousand dollars per day until the delivery of such refund or
replacement. The estimated delivery date shall not exceed sixty days from the
date the manufacturer notifies the consumer that a delivery will be made. Said
fine shall not exceed fifty thousand dollars for each such violation. The amount
of said fine shall begin to accumulate on the twenty-second day following the
arbitration decision. If eighty-one days has elapsed from the issuance of a
finding in favor of the consumer of the state-certified, new car arbitration and
no appeal has been taken and no award delivered and no fine paid, the attorney
general shall initiate proceedings against said manufacturer for failure to pay
said fine. The proceedings initiated pursuant to the provisions of this section
shall be commenced in superior court department of the trial court.
In addition to the remedies hereinbefore provided, the attorney general may
bring an action on behalf of the commonwealth to restrain further violation of
this section, to enforce any provision, and for such other relief as may be
appropriate.
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