Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 1512
       
       
       
       
       
       
                                Barcode 344094                          
       
                              LEGISLATIVE ACTION                        
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       The Committee on Commerce and Tourism (Ring) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 501.975, Florida Statutes, is amended to
    6  read:
    7         501.975 Definitions.—As used in this part s. 501.976, the
    8  term following terms shall have the following meanings:
    9         (1) “Customer” includes a customer’s designated agent.
   10         (2) “Dealer” means a motor vehicle dealer as defined in s.
   11  320.27, but does not include a motor vehicle auction as defined
   12  in s. 320.27(1)(c)4.
   13         (3) “Replacement item” means a tire, bumper, bumper fascia,
   14  glass, in-dashboard equipment, seat or upholstery cover or trim,
   15  exterior illumination unit, grill, sunroof, external mirror and
   16  external body cladding. The replacement of up to three of these
   17  items does not constitute repair of damage if each item is
   18  replaced because of a product defect or damaged due to vandalism
   19  while the new motor vehicle is under the control of the dealer
   20  and the items are replaced with original manufacturer equipment,
   21  unless an item is replaced due to a crash, collision, or
   22  accident.
   23         (4) “Threshold amount” means 3 percent of the
   24  manufacturer’s suggested retail price of a motor vehicle or
   25  $650, whichever is less.
   26         (5) “Vehicle” means any automobile, truck, bus,
   27  recreational vehicle, or motorcycle required to be licensed
   28  under chapter 320 for operation over the roads of Florida, but
   29  does not include trailers, mobile homes, travel trailers, or
   30  trailer coaches without independent motive power.
   31         Section 2. Section 501.98, Florida Statutes, is created to
   32  read:
   33         501.98 Notice of claim.—
   34         (1)As a condition precedent to initiating any civil
   35  litigation or arbitration arising under this part against a
   36  motor vehicle dealer, a claimant must give the dealer written
   37  notice of the claimant’s intent to initiate litigation against
   38  the dealer not less than 15 days before initiating the
   39  litigation.
   40         (2)The notice of claim, which must be completed in good
   41  faith, must:
   42         (a)State the name, address, and telephone number of the
   43  claimant;
   44         (b)Provide the date and a description of the transaction,
   45  event, or circumstance that is the basis of the claim;
   46         (c)Describe the underlying facts of the claim, including a
   47  comprehensive and detailed statement describing each item of
   48  actual damage or other relief or remedy demanded; and
   49         (d)To the extent available, be accompanied by all
   50  documents upon which the claim is based or upon which the
   51  claimant is relying to assert the claim.
   52         (3)The notice of claim must be delivered to the dealer by
   53  United States mail or other nationally recognized carrier,
   54  return receipt requested. The cost of delivery shall be
   55  reimbursed to the claimant by the dealer if the dealer pays the
   56  claim and if the claimant requests reimbursement of the costs in
   57  the notice of claim.
   58         (4)Notwithstanding any other provision of this part, a
   59  claimant may not initiate civil litigation against a dealer for
   60  a claim arising under this part which is related to, or in
   61  connection with, the transaction or event described in the
   62  notice of claim if the dealer pays the claimant, within 15 days
   63  after receiving the notice of claim, the amount requested as
   64  specified in paragraph (2)(c) and the cost of delivering the
   65  notice if requested pursuant to subsection (3) and provides any
   66  other remedy or relief sought by the claimant.
   67         (5)For purposes of this section, payment by a dealer is
   68  deemed paid on the date a draft or other valid instrument that
   69  is equivalent to payment is placed in the United States mail, or
   70  another nationally recognized carrier, in a properly addressed,
   71  postpaid envelope, or, if not so posted, on the date of
   72  delivery.
   73         (6)Notwithstanding any other provision of this part, a
   74  dealer is not required to pay the claim of the claimant in any
   75  action brought under this part if:
   76         (a)The dealer, within 15 days after receiving the
   77  claimant’s notice of claim, notifies the claimant in writing,
   78  and a court or arbitrator agrees, that the amount claimed is not
   79  supported by the facts of the transaction or event described in
   80  the notice of claim or by generally accepted accounting
   81  principles or includes items not properly recoverable under this
   82  part; or
   83         (b)The claimant fails to substantially comply with this
   84  section.
   85         (7)Payment of the actual damages as set forth in this
   86  section:
   87         (a)Does not constitute an admission of any wrongdoing or
   88  liability by the dealer; and
   89         (b)Serves to release the dealer from any claim, suit, or
   90  other action that could be brought arising out of or in
   91  connection with the specific transaction, event, or occurrence
   92  described in the notice of claim.
   93         (8)Mailing of the notice of claim required by this section
   94  tolls the applicable statute of limitations for an action under
   95  this part for 15 days following the date the notice is received
   96  by the dealer or any extended period agreed to by the parties.
   97  Upon denial of claim, the claimant has the remainder of the
   98  statute of limitations or 60 days, whichever is greater, in
   99  which to file an action under this part.
  100         (9)A dealer waives the requirement of this section that a
  101  claimant serve a notice of claim prior to initiating civil
  102  litigation if the dealer fails to provide the following
  103  statement in writing to the claimant at the time of sale:
  104  
  105         Section 501.98, Florida Statutes, requires that at
  106         least 15 days before you initiate civil litigation,
  107         including an arbitration action, against a motor
  108         vehicle dealer for violation of the Florida Deceptive
  109         and Unfair Trade Practices Act (Chapter 501, Florida
  110         Statutes), you must provide written notice to the
  111         dealer. This notice must include the following:
  112         (a)Your name, address, and telephone number;
  113         (b)A description and date of the transaction
  114         that resulted in the claim;
  115         (c)A description of the underlying facts of the
  116         claim, including a comprehensive and detailed
  117         statement describing each item of actual damage
  118         demanded; and
  119         (d)To the extent available, all documents upon
  120         which the claim is based or upon which you rely to
  121         assert the claim.
  122  
  123         Notice may be provided to this dealership by United
  124         States mail or other nationally recognized carrier,
  125         return receipt requested (cost of delivery shall be
  126         reimbursed to the claimant by the dealer if the dealer
  127         pays the claim and if the claimant requests
  128         reimbursement of the costs in the notice of claim) to
  129         the following:
  130  
  131         ...(Dealership Name)...
  132         Attention: ..(Dealership Representative)...
  133         ...(Dealership Address)...
  134  
  135         (10)This section does not apply to:
  136         (a)Any claim brought as a class action; or
  137         (b)Any action brought by the enforcing authority.
  138         (11)If a claimant initiates civil litigation under this
  139  part without first complying with the requirements of this
  140  section or files a claim as a class action, but is ultimately
  141  not certified as a class, the court, upon motion, may abate the
  142  litigation, without prejudice, to permit the claimant to comply
  143  with the provisions of this section and allow the dealer the
  144  opportunity to accept or reject the demand as if it had been
  145  sent in accordance with subsection (1), and no attorney fees
  146  shall be recoverable by the claimant under this chapter for
  147  legal services rendered prior to the claimant’s compliance with
  148  the notice requirement in this section. Notice by a single
  149  claimant made for the claimant on behalf of herself or himself
  150  and others similarly situated constitutes notice for the entire
  151  putative class.
  152         (12)This section applies to all civil litigation whether
  153  maintained in court or by arbitration.
  154         (13)A claimant is not entitled to recover attorney fees in
  155  an action under this part against a motor vehicle dealer’s
  156  employees, agents, principals, sureties, or insurers for actions
  157  for which that motor vehicle dealer could also be held liable
  158  unless the motor vehicle dealer is joined in that action and the
  159  claimant has complied with this section as to such claim.
  160         Section 3. Subsection (1) of section 501.213, Florida
  161  Statutes, is amended to read:
  162         501.213 Effect on other remedies.—
  163         (1) The remedies of this part are in addition to remedies
  164  otherwise available for the same conduct under state or local
  165  law. Proof of reliance on a representation, omission, act, or
  166  practice alleged to be in violation of this part is not required
  167  in any action brought under this part, and causation of loss or
  168  of being aggrieved shall be presumed upon an objective showing
  169  of an act, practice, representation, or omission in violation of
  170  this part.
  171         Section 4. This act shall take effect July 1, 2012.
  172  
  173  ================= T I T L E  A M E N D M E N T ================
  174         And the title is amended as follows:
  175         Delete everything before the enacting clause
  176  and insert:
  177                        A bill to be entitled                      
  178         An act relating to unfair or deceptive acts or
  179         practices involving motor vehicles; amending s.
  180         501.975, F.S.; conforming provisions; creating s.
  181         501.98, F.S.; providing for the disposition of certain
  182         claims against motor vehicle dealers before civil
  183         litigation; requiring that a claimant provide written
  184         notice of such claim to the motor vehicle dealer
  185         before initiating litigation; specifying the required
  186         contents and procedures for providing the written
  187         notice; requiring that a motor vehicle dealer provide
  188         a copy of the notice-of-claim form to each customer;
  189         authorizing a claimant to initiate litigation without
  190         prior notice to a motor vehicle dealer that does not
  191         provide a copy of the notice-of-claim form;
  192         prohibiting a claimant from initiating litigation
  193         against a motor vehicle dealer that pays the actual
  194         damages claimed within a specified period; limiting a
  195         motor vehicle dealer’s further liability upon payment
  196         of a claim; limiting a motor vehicle dealer’s
  197         liability for payment of attorney fees under certain
  198         circumstances; tolling time limitations for initiating
  199         litigation against a motor vehicle dealer under
  200         certain circumstances; limiting admissibility of a
  201         motor vehicle dealer’s payment or offer to pay a
  202         claimant’s actual damages; providing for
  203         applicability; amending s. 501.213, F.S.; clarifying
  204         the availability of remedies under part II of ch. 501,
  205         F.S., upon an objective showing of certain acts,
  206         practices, representations, or omissions; providing an
  207         effective date.