H. B. 2954
(By Delegates Manchin, Proudfoot,
Swartzmiller, Yost and Walters)
[Introduced February 8, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6-106 of the Code of West
Virginia, 1931, as amended, relating to actions by consumers;
and updating the scope to add "manufacturer" and "contractor"
to the parties affected.
Be it enacted by the Legislature of West Virginia:
That §46A-6-106 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-106. Actions by consumers.
(a) Any person who purchases or leases goods or services and
thereby suffers any ascertainable loss of money or property, real
or personal, as a result of the use or employment by another person
of a method, act or practice prohibited or declared to be unlawful
by the provisions of this article may bring an action in the
Circuit Court of the county in which the
manufacturer, contractor, seller or lessor resides or has his principal place of business or
is doing business, or as provided for in sections one and two,
article one, chapter fifty-six of this code, to recover actual
damages or two hundred dollars, whichever is greater. The court
may, in its discretion, provide
such any equitable relief as it
deems considers necessary or proper.
(b) Notwithstanding the provisions of subsection (a) of this
section, no action may be brought pursuant to the provisions of
this section until the consumer has informed the
manufacturer,
contractor, seller or lessor in writing and by certified mail of
the alleged violation and provided the
manufacturer, contractor,
seller or lessor twenty days from receipt of the notice of
violation to make a cure offer:
Provided, That the consumer shall
have ten days from receipt of the cure offer to accept the cure
offer or it is deemed refused and withdrawn.
(c) If a cure offer is accepted, the
manufacturer, contractor,
seller or lessor shall have ten days to begin effectuating the
agreed upon cure and such must be completed within a reasonable
time.
(d) Any applicable statute of limitations shall be tolled for
the twenty-day period set forth in subsection (b) of this section
or for the period of time the effectuation of the cure offer is
being performed, whichever is longer.
(e) Nothing in this section shall be construed to prevent a consumer that has accepted a cure offer from bringing a civil
action against a
manufacturer, contractor, seller or lessor for
failing to timely effect
such the cure offer.
(f) Any permanent injunction, judgment or order of the court
under section one hundred eight, article seven of this chapter for
a violation of section one hundred four of this article
shall be is
prima facie evidence in an action brought pursuant to the
provisions of this section that the respondent used or employed a
method, act or practice declared unlawful by section one hundred
four of this article.
(g) Where an action is brought pursuant to the provisions of
this section, it
shall be is a complete defense that a cure offer
was made, accepted and the agreed upon cure was performed. If the
finder of fact determines that the cure offer was accepted and the
agreed upon cure performed, the
manufacturer, contractor, seller or
lessor
shall be is entitled to reasonable attorney's fees and costs
attendant to defending the action.
(h) No cure offer
shall be is admissible in any proceeding
initiated pursuant to the provisions of this article unless the
cure offer is delivered by a
manufacturer, contractor, seller or
lessor to the person claiming loss or to any attorney representing
such person prior to the filing of the
manufacturer, contractor,
seller or lessee's initial responsive pleading in such proceeding.
If the cure offer is timely delivered by the
manufacturer, contractor, seller or lessor, then the
manufacturer, contractor,
seller or lessee may introduce the cure offer into evidence at
trial. The
manufacturer, contractor, seller or lessor
shall may
not be liable for
such the person's attorney's fees and court costs
incurred following delivery of the cure offer unless the actual
damages found to have been sustained and awarded, without
consideration of attorney's fees and court costs, exceed the value
of the cure offer.
NOTE: The purpose of this bill is to
update the scope of
actions by consumers to include a "manufacturer" and "contractor"
to the parties affected.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
