H. B. 4502
(By Delegates Duke, Blair, Overington, J. Miller,
Evans, Rowan, Tabb and Wysong)
[Introduced February 12, 2008; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend and reenact §46A-6-107 of the Code of West
Virginia, 1931, as amended, relating to disclaimers of
warranties with respect to goods which are the subject of or
are intended to become the subject of a consumer transaction;
prohibition against exclusion, modification or limitation of
any warranty or remedy; waiver of warranty on used motor
vehicle as to a particular defect or malfunction which dealer
has disclosed; conditions permitting "as is" sale of used
motor vehicle; conspicuous disclosure of "as is" sale; "as is"
sale does not waive express warranties made by dealer; dealer
to conform to federal regulations.
Be it enacted by the Legislature of West Virginia:
That §46A-6-107 of the Code of West Virginia, 1931, be amended
and reenacted to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-107. Disclaimer of warranties and remedies prohibited, as to consumer goods.
(a) Notwithstanding any other provision of law to the contrary
Except in the case of certain used motor vehicles as otherwise
provided in this section, with respect to goods which are the
subject of or are intended to become the subject of a consumer
transaction, no merchant shall:
(1) Exclude, modify or otherwise attempt to limit any
warranty, express or implied, including the warranties of
merchantability and fitness for a particular purpose; or
(2) Exclude, modify or attempt to limit any remedy provided by
law, including the measure of damages available, for a breach of
warranty, express or implied.
Any such exclusion, modification or attempted limitation
shall
be is void.
(b) Except as otherwise provided in this section, an agreement
entered into by a consumer for the purchase of a used motor vehicle
that excludes, modifies or attempts to limit any warranty, express
or implied, including, the warranties of merchantability and
fitness for a particular purpose, is void as contrary to public
policy, and the dealer nevertheless shall be considered, as a
matter of law, to have given the warranty.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, a consumer who purchases a used motor vehicle may
waive a warranty as to a particular defect or malfunction which the dealer has disclosed in writing to the consumer. No such
waiver is effective unless the waiver:
(1) Is in writing;
(2) Is conspicuous and is in plain language;
(3) Identifies the particular disclosed defect or malfunction
in the used motor vehicle for which the warranty is to be waived;
(4) Describes any additional defects or malfunctions, if any;
(A) Disclosed to the dealer by a previous owner of the used
motor vehicle; (B) discoverable by the dealer through an inspection
of the used motor vehicle; and (C) that need to be repaired before
the used motor vehicle can comply with the motor vehicle inspection
and test laws set forth in article sixteen, chapter seventeen-c of
this code.
(5) States what warranty, if any, applies to any disclosed
defect or malfunction, and
(6) Is signed by both the consumer and the dealer before the
sales contract is executed.
(d) A motor vehicle may be sold "as is" and the prohibition
against exclusion, modification or limitation of any warranty or
remedy, as set forth in this section, does not apply to:
(1) A used motor vehicle sold for less than two thousand five
hundred dollars;
(2) A used motor vehicle that has been driven more than eighty
thousand actual miles at the time of sold;
(3) A used motor vehicle that is seven years of age or older,
calculated from the first day in January of the designated motel
year of the vehicle;
(4) A vehicle that has been custom built or modified for show
purposes or racing; or
(5) A vehicle that is inoperable and a total loss.
For the purpose of this subsection, a vehicle is a "total
loss" only if there is material damage to the vehicle's frame,
unitized structure or suspension system, and the projected cost of
repairing the damage exceeds the market value of the vehicle at the
time of the incident causing it to be declared a total loss.
(e) A used motor vehicle may be sold "as is" by a dealer only
if it falls within one or more of the exemptions set out in
subsection (d) of this section. No "as is" disclaimer by a dealer
is enforceable unless all of the following conditions are met:
(1) A disclaimer must appear on the front page of the contract
of sale, and must read as follows:
"AS IS"
THIS VEHICLE IS SOLD "AS IS". YOU WILL HAVE TO PAY FOR ANY REPAIRS
NEEDED AFTER THE SALE. IF WE HAVE MADE ANY PROMISES TO YOU, THE
LAW SAYS WE MUST KEEP OUR PROMISES, EVEN IF WE SELL, "AS IS". TO
PROTECT YOURSELF, ASK US TO PUT ALL PROMISES IN WRITING.
(2) The text of the disclaimer must be printed in twelve point
boldfaced type, except the heading, which must be in sixteen point extra boldfaced type. The entire notice must be boxed.
(3) The consumer shall sign the consumer's name and the date
within the box containing the disclaimer prior to the sale.
(4) An "as is" sale of a used motor vehicle waives implied
warranties, but does not waive any express warranties, either oral
or written, upon which the consumer relied in entering into the
transaction.
(5) In selling or offering to sell any used motor vehicle, and
in providing an express warranty, a dealer shall comply in all
respects with the Federal Trade Commission's "Used Motor Vehicle
Trade Regulation Rule," §16 CFR, 455.
NOTE: The purpose of this bill is to clearly explain all
warranties for the sale of used cars including the requirements for
"as is" sales.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.