Florida Senate - 2013                       CS for CS for SB 292
       By the Committees on Judiciary; and Commerce and Tourism; and
       Senators Richter, Flores, Bean, Brandes, and Grimsley
       590-03892-13                                           2013292c2
    1                        A bill to be entitled                      
    2         An act relating to deceptive and unfair trade
    3         practices; amending s. 501.975, F.S.; conforming
    4         provisions; creating s. 501.98, F.S.; requiring a
    5         claimant to provide a demand letter to the motor
    6         vehicle dealer as a condition precedent to initiating
    7         civil litigation, including arbitration, against such
    8         dealer under the Florida Deceptive and Unfair Trade
    9         Practices Act; providing for expiration of the demand
   10         letter after a specified period; providing for the
   11         tolling of applicable time limitations for initiating
   12         actions; requiring a stay of civil litigation,
   13         including arbitration, brought without compliance with
   14         the demand letter requirements; providing an
   15         additional opportunity for claimants to comply with
   16         specified provisions; providing a condition that
   17         constitutes waiver of notice; providing for
   18         applicability; requiring that a specified notice be
   19         provided to consumers and acknowledged before
   20         provisions may apply; providing an effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Section 501.975, Florida Statutes, is amended to
   25  read:
   26         501.975 Definitions.—As used in this part s. 501.976, the
   27  term following terms shall have the following meanings:
   28         (1) “Customer” includes a customer’s designated agent.
   29         (2) “Dealer” means a motor vehicle dealer as defined in s.
   30  320.27, but does not include a motor vehicle auction as defined
   31  in s. 320.27(1)(c)4.
   32         (3) “Replacement item” means a tire, bumper, bumper fascia,
   33  glass, in-dashboard equipment, seat or upholstery cover or trim,
   34  exterior illumination unit, grill, sunroof, external mirror and
   35  external body cladding. The replacement of up to three of these
   36  items does not constitute repair of damage if each item is
   37  replaced because of a product defect or damaged due to vandalism
   38  while the new motor vehicle is under the control of the dealer
   39  and the items are replaced with original manufacturer equipment,
   40  unless an item is replaced due to a crash, collision, or
   41  accident.
   42         (4) “Threshold amount” means 3 percent of the
   43  manufacturer’s suggested retail price of a motor vehicle or
   44  $650, whichever is less.
   45         (5) “Vehicle” means any automobile, truck, bus,
   46  recreational vehicle, or motorcycle required to be licensed
   47  under chapter 320 for operation over the roads of Florida, but
   48  does not include trailers, mobile homes, travel trailers, or
   49  trailer coaches without independent motive power.
   50         Section 2. Section 501.98, Florida Statutes, is created to
   51  read:
   52         501.98 Demand letter.—
   53         (1) As a condition precedent to initiating any civil
   54  litigation, including arbitration, arising under this chapter
   55  against a motor vehicle dealer, which may also include its
   56  employees, agents, principals, sureties, and insurers, a
   57  claimant must give the dealer a written demand letter at least
   58  30 days before initiating the litigation.
   59         (2) The demand letter, which must be completed in good
   60  faith, must:
   61         (a) State the name, address, and telephone number of the
   62  claimant.
   63         (b) State the name and address of the dealer.
   64         (c) Describe the underlying facts of the claim, including a
   65  statement describing each item for which actual damages are
   66  claimed.
   67         (d) State the amount of damages, or, if not available, the
   68  claimant’s best estimate of the amount of damages.
   69         (e) To the extent available to the claimant, be accompanied
   70  by all transaction or other documents upon which the claim is
   71  based.
   73  In any challenge to the claimant’s compliance with this
   74  subsection, the demand letter shall be deemed satisfactory if it
   75  contains sufficient information to reasonably put the dealer on
   76  notice of the nature of the claim and the relief sought.
   77         (3) The demand letter must be delivered by the United
   78  States Postal Service or by a nationally recognized carrier,
   79  return receipt requested, to the address at which the subject
   80  vehicle was purchased or leased or at which the subject
   81  transaction occurred, or an address at which the dealer
   82  regularly conducts business.
   83         (4) Notwithstanding any provision of this chapter:
   84         (a) A claimant may not initiate civil litigation, including
   85  arbitration, against a dealer or its employees, agents,
   86  principals, sureties, or insurers for a claim arising under this
   87  chapter related to, or in connection with, the transaction or
   88  event described in the demand letter if, within 30 days after
   89  receipt of the demand letter, the dealer pays the claimant the
   90  amount sought in the demand letter, plus a surcharge of the
   91  lesser of $500 or 10 percent of the damages claimed.
   92         (b) A dealer and its employees, agents, principals,
   93  sureties, and insurers may not be required to pay the attorney
   94  fees of the claimant in any action brought under this chapter
   95  if:
   96         1. The dealer, within 30 days after receipt of the demand
   97  letter, notifies the claimant in writing, and a court or
   98  arbitrator subsequently agrees that the amount sought in the
   99  demand letter is not reasonable in light of the facts of the
  100  transaction or event described in the demand letter or if the
  101  demand letter includes items and amounts not properly
  102  recoverable under this chapter; or
  103         2. The claimant fails to sufficiently comply with this
  104  section; however, to the extent that there is a challenge to the
  105  sufficiency of the demand letter, the demand letter shall be
  106  deemed satisfactory if it contains sufficient information to
  107  reasonably put the dealer on notice of the nature of the claim
  108  and the amount and relief sought such that the dealer could
  109  appropriately respond.
  110         (5) The demand letter required by this section expires 30
  111  days after receipt by the dealer, unless renewed by the
  112  claimant, and does not place a limitation on the damages that
  113  the claimant may claim in any subsequently maintained civil
  114  litigation, including arbitration. Payment of the damages
  115  claimed in the demand letter and the required surcharge as set
  116  forth in this section within 30 days after receipt of the demand
  117  letter:
  118         (a) Does not constitute an admission of any wrongdoing or
  119  liability by the dealer.
  120         (b) Is protected under s. 90.408 from introduction as
  121  evidence during any civil litigation, including arbitration.
  122         (c) Releases the dealer and its employees, agents,
  123  principals, sureties, and insurers from any claim, suit, or
  124  other action that could be brought arising out of, or in
  125  connection with, the specific transaction, event, or occurrence
  126  described in the demand letter; but does not serve as a release
  127  as to items of damages that are not recoverable under this
  128  chapter.
  129         (6) The applicable time limitations for initiating an
  130  action under this chapter are tolled for 30 days after the date
  131  of delivery of the demand letter to the dealer pursuant to
  132  subsection (3), or such other period agreed to in writing and
  133  signed by the parties after the demand letter is received by the
  134  dealer.
  135         (7) This section does not apply to any action brought as a
  136  class action that is ultimately certified as a class action or
  137  to any action brought by the enforcing authority.
  138         (8) If a claimant initiates civil litigation, including
  139  arbitration, without first complying with this section, the
  140  court or arbitrator shall stay the action upon timely motion
  141  until the claimant complies with this section. Attorney fees and
  142  court or arbitration costs incurred by the claimant before
  143  compliance with this section are not recoverable under this
  144  chapter.
  145         (9) This section applies only to civil litigation,
  146  including arbitration, arising out of a transaction for which
  147  the dealer has provided the following written notice to the
  148  consumer, which must be acknowledged by the consumer, and which
  149  must be in a font size no smaller than that of the predominant
  150  text on the page in which the notice is disclosed, or if it is
  151  disclosed by itself, in a font size of at least 12 point:
  153         “Section 501.98, Florida Statutes, requires that, at
  154         least 30 days before bringing any claim against a
  155         motor vehicle dealer for an unfair or deceptive trade
  156         practice, a consumer must provide the dealer with a
  157         written demand letter stating the name, address, and
  158         telephone number of the consumer; the name and address
  159         of the dealer; a description of the facts that serve
  160         as the basis for the claim; the amount of damages; and
  161         copies of any documents in the possession of the
  162         consumer which relate to the claim. Such notice must
  163         be delivered by the United States Postal Service or by
  164         a nationally recognized carrier, return receipt
  165         requested, to the address where the subject vehicle
  166         was purchased or leased or where the subject
  167         transaction occurred, or an address at which the
  168         dealer regularly conducts business.
  169         Section 3. This act shall take effect July 1, 2013.