WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article designated §46A-6N-1,
§46A-6N-2, §46A-6N-3, §46A-6N-4, §46A-6N-5, §46A-6N-6, §46A-6N-7, §46A-6N-8, §46A-6N-9
and §46A-6N-10, all relating to placing upon the manufacturers of manufactured
homes the duty to meet their obligations and responsibilities under the terms
of the express warranties extended to the consumers in this state; and
providing consumers additional remedies to enforce the warranties.
Be it enacted by the
Legislature of West Virginia:
That the Code of West Virginia,
1931, as amended, be amended by adding thereto a new article, designated §46A-6N-1,
§46A-6N-2, §46A-6N-3, §46A-6N-4, §46A-6N-5, §46A-6N-6, §46A-6N-7, §46A-6N-8, §46A-6N-9
and §46A-6N-10, all to read as follows:
ARTICLE 6N. CONSUMER
PROTECTION--NEW MANUFACTURED HOME WARRANTIES.
§46A-6N-1.
Legislative declarations.
(1) The Legislature
hereby finds and declares as a matter of public policy that the purpose of this
article is to place upon the manufacturers of manufactured homes the duty to
meet their obligations and responsibilities under the terms of the express
warranties extended to the consumers in this state. The Legislature further
finds as a matter of public policy that the manufacturer shall bear the total
cost of performing any duty or responsibility imposed by their warranties and
the provisions of this article.
(2) The Legislature
further finds that any agreement amended or entered into between a dealer and
manufacturer which would transfer to the dealer any duty, or all or any part of
the cost of performing any duty imposed on the manufacturer by the provisions
of this article, or which would directly or indirectly charge the dealer for or
reduce the payment or reimbursement due the dealer for performing work or
furnishing parts required by this article to be provided by either the dealer
or manufacturer, so as to shift to the dealer all or any part of the cost of
the manufacturer's compliance with this article, to be against public policy,
void and unenforceable.
§46A-6N-2.
Definitions.
As used in this article:
"Consumer"
means the purchaser, other than for purposes of resale, of a new manufactured
home used primarily for personal, family or household purposes, a person to
whom the new manufactured home is transferred for the same purposes during the
duration of an express warranty applicable to the manufactured home and any
other person entitled by the terms of the warranty to enforce the obligations
of the warranty;
"Dealer"
means any person engaged in this state in the sale, leasing or distributing of
new or used manufactured homes, primarily to persons who in good faith purchase
or lease a manufactured home for purposes other than resale.
"Defect"
includes any defect in the performance, construction, components or material of
a manufactured home that renders the home or any part of the home not fit for
the ordinary use for which it was intended.
"Distributor"
means any person engaged in this state in the sale and distribution of
manufactured homes for resale.
"Manufacturer"
means any person engaged in manufacturing or assembling manufactured homes,
including any person engaged in importing manufactured homes for resale.
"Manufactured
home"
means a structure, transportable in one or more sections, which in the traveling
mode is eight body feet or more in width or forty or more feet in length or,
when erected on site, is three hundred twenty or more square feet, and which is
built on a permanent chassis and designed to be used as a dwelling with or
without a permanent foundation when connected to the required utilities, and
includes the plumbing, heating, air-conditioning and electrical systems
contained therein; except that such term shall include any structure which
meets all the requirements of this definition except the size requirements and
with respect to which the manufacturer voluntarily files a certificate which
complies with the applicable federal standards. Calculations used to determine
the number of square feet in a structure will be based on the structure's
exterior dimensions measured at the largest horizontal projections when erected
on site.
"Manufacturer's
express warranty" and "warranty" mean the written warranty of
the manufacturer of a new manufactured home of its condition and fitness for
use, including any terms or conditions precedent to the enforcement of obligations
under that warranty.
§46A-6N-3.
Manufacturer's duty to repair or replace new manufactured homes.
(a) If a new manufactured
home does not conform to all applicable express warranties and the consumer
reports the nonconformity to the manufacturer, its agent or its authorized
dealer during the term of the express warranties or within a period of one year
following the date of original delivery of the new manufactured home to a
consumer, whichever is the longer period, the manufacturer, its agent or its
authorized dealer shall make the repairs necessary to conform the manufactured
home to the express warranties, notwithstanding the fact that the repairs are
made after the expiration of the warranty term.
(b) If the manufacturer,
its agents or its authorized dealer are unable to conform the new manufactured
home to any applicable express warranty by repairing or correcting any defect
or condition which substantially impairs the use or market value of the manufactured
home to the consumer after a reasonable number of attempts, the manufacturer
shall replace the new manufactured home with a comparable new manufactured home
which does conform to the warranties.
(c) No authorized dealer
may be held liable by the manufacturer for any refunds or manufactured home replacements
in the absence of evidence indicating that the dealership repairs have been
carried out in a manner substantially inconsistent with the manufacturer's
instruction. This section does not create any cause of action by a consumer
against an authorized dealer.
§46A-6N-4. Dealer's
duty to disclose repairs to consumer.
All authorized dealers
of new manufactured homes shall provide to a consumer a written disclosure of
any repairs to a new manufactured home that have a retail value of five percent
of the manufacturer's
suggested retail price and were performed after shipment from the manufacturer
to the dealer, including damage to the new manufactured home while in transit.
This disclosure
requirement does not apply to identical replacement of stolen or damaged
accessories or their components.
For purposes of this
section, a manufactured home is not a new manufactured home when it has been
previously titled or the manufactured home has been damaged in such a manner
that, were the damage not repaired, the value and usability of the manufactured
home would be substantially impaired.
§46A-6N-5. Civil action
by consumer.
(a) If the nonconformity
results in substantial impairment to the use or market value of the new manufactured
home and the manufacturer has not replaced the new manufactured home pursuant
to the provisions of section three of this article, or if the nonconformity
exists after a reasonable number of attempts to conform the new manufactured
home to the applicable express warranties, the consumer has a cause of action
against the manufacturer, in the circuit court of any county having venue.
(b) In any action under
this section, the consumer may be awarded all or any portion of the following:
(1) Revocation of
acceptance and refund of the purchase price, including, but not limited to,
sales tax, fees, and other reasonable expenses incurred for the purchase of the
new manufactured home, or if there is no revocation of acceptance, damages for
diminished value of the manufactured home;
(2) Damages for the cost
of repairs reasonably required to conform the manufactured home to the express
warranty;
(3) Damages for the loss
of use, annoyance or inconvenience resulting from the nonconformity, including,
but not limited to, reasonable expenses incurred for replacement housing during
any period when the manufactured home is not habitable by reason of the
nonconformity or by reason of repair; and
(4) Reasonable attorney
fees.
(c) It is an affirmative
defense to any claim under this section: (i) That an alleged nonconformity does
not substantially impair the use or market value or (ii) that a nonconformity
is the result of abuse, neglect or unauthorized modifications or alterations of
a manufactured home by anyone other than the manufacturer, its agent or its
authorized dealer.
(d) An action brought
under this section by the consumer must be commenced within one year of the
expiration of the express warranty term.
(e) The cause of action
provided in this section is available only against the manufacturer.
(f) The remedy provided to
the consumer in this section is in addition to remedies available under article
nine, chapter twenty-one of this code. Therefore, the period of exclusive
remedy provided in section eleven-a of that article does not apply to actions
filed under this section.
§46A-6N-6.
Presumption of reasonable number of attempts; extension of warranty term when
repair services unavailable.
(a) It is presumed that
a reasonable number of attempts have been undertaken to conform a new manufactured
home to the applicable express warranties, if the same nonconformity has been
subject to repair three or more times by the manufacturer, its agents or its
authorized dealers within the express warranty term or during the period of one
year following the date of original delivery of the manufactured home to the
consumer, whichever is the earlier date, and the nonconformity continues to
exist, or the manufactured home is not habitable by reason of repair for a
cumulative total of thirty or more calendar days during the term or during the
one-year period, whichever is the earlier date.
(b) If the nonconformity
results in a condition which is likely to cause death or serious bodily injury
if the manufactured home is lived in, it is presumed that a reasonable number
of attempts have been undertaken to conform the manufactured home to the
applicable express warranties if the nonconformity has been subject to repair
at least once by the manufacturer within the express warranty term or during
the period of one year following the date of original delivery of the manufactured
home to a consumer, whichever is the earlier date, and the nonconformity
continues to exist.
(c) The presumption that
a reasonable number of attempts have been undertaken to conform a new manufactured
home to the applicable express warranties applies against a manufacturer only
if the manufacturer has received prior written notification from or on behalf
of the consumer and has had at least one opportunity to cure the defect
alleged.
(d) The term of an
express warranty, the one-year period and the 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.
§46A-6N-7. Written
statement to be provided to consumer.
At the time of purchase
the manufacturer, either directly or through its agent or its authorized
dealer, must provide the consumer a written statement on a separate piece of
paper, in twelve point all capital type, in substantially the following form: "IMPORTANT:
IF THIS MANUFACTURED HOME IS DEFECTIVE, YOU MAY BE ENTITLED UNDER STATE LAW TO
REPLACEMENT OR TO COMPENSATION. HOWEVER, TO BE ENTITLED TO REPLACEMENT OR TO
COMPENSATION, YOU MUST FIRST NOTIFY THE MANUFACTURER OF THE PROBLEM IN WRITING
AND PROVIDE THE MANUFACTURER AN OPPORTUNITY TO REPAIR THE MANUFACTURED HOME."
§46A-6N-8. Resale of
returned manufactured home.
If a new manufactured
home has been returned under section three of this article or a similar statute
of another state, it may not be resold in this state unless the manufacturer
corrects the nonconformity and provides the consumer with a written statement
on a separate piece of paper in ten point all capital type, in substantially
the following form: "IMPORTANT: THIS MANUFACTURED HOME WAS RETURNED TO THE
MANUFACTURER BECAUSE IT DID NOT CONFORM TO THE MANUFACTURER'S EXPRESS WARRANTY
AND THE NONCONFORMITY WAS NOT CURED WITHIN A REASONABLE TIME AS PROVIDED BY
WEST VIRGINIA LAW.": Provided, That a manufacturer may not require
by agreement or otherwise, either directly or indirectly, that any of its
authorized dealers in this state accept such a manufactured home for resale.
§46A-6N-9. Third
party dispute resolution process; Attorney General to promulgate rules.
(a) The Attorney General
of the State of West Virginia shall promulgate rules for the establishment and
qualification of a third party dispute mechanism or mechanisms for the
resolution of warranty disputes between the consumer and the manufacturer, its
agent or its authorized dealer. The mechanisms shall be under the supervision
of the Division of Consumer Protection in the office of the Attorney General,
and shall meet or exceed the minimum requirements of the informal dispute
settlement mechanism as provided by the Magnuson-Moss Warranty Federal Trade
Commission Improvement Act (Public Law 93-637) and rules and regulations
lawfully promulgated thereunder effective January 1, 1984.
(b) If a qualified third
party dispute resolution process exists and the consumer receives timely
notification in writing of the availability of the third party process with a
description of its operation and effect, the cause of action under section five
of this article may not be asserted by the consumer until after the consumer
has initially resorted to the third party process. Notification of the
availability of the third party process must be timely to the consumer. If a
qualified third party dispute resolution process does not exist, or if the
consumer is dissatisfied with the third party decision, or if the manufacturer,
its agent or its authorized dealer fails to promptly fulfill the terms of the
third party decision, the consumer may assert a cause of action under section five
of this article.
(c) Any period of
limitation of actions under any federal or West Virginia laws with respect to
any consumer is tolled for the period between the date a complaint is filed
with a third party dispute resolution process and the date of its decision or
the date before which the manufacturer, its agent or its authorized dealer is
required by the decision to fulfill its terms, whichever occurs later.
§46A-6N-10. Other
remedies available.
This article does not limit
any right or remedy which is otherwise available to a consumer or authorized
dealer of a manufacturer under any other law.
NOTE: The purpose of this bill is
to place upon the manufacturers of manufactured homes the duty to meet their
obligations and responsibilities under the terms of the express warranties
extended to the consumers in this state. The bill provides consumers additional
remedies to enforce the warranties.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.