Senate Bill 1104c1

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    Florida Senate - 1998                           CS for SB 1104

    By the Committee on Transportation and Senator Campbell





    306-1862-98

  1                      A bill to be entitled

  2         An act relating to motor vehicle damage

  3         disclosure; creating s. 501.98, F.S.;

  4         prescribing the duty of motor vehicle

  5         manufacturers and dealers to disclose and to

  6         repair certain damage to motor vehicles;

  7         prescribing duty of dealers with respect to

  8         cooperation with manufacturers; providing

  9         remedies for purchasers of damaged motor

10         vehicles, including injunctive relief and

11         attorney's fees; apportioning liability for

12         certain damage and repairs; providing an

13         effective date.

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15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Section 501.98, Florida Statutes, is

18  created to read:

19         501.98  New motor vehicle damage; disclosure;

20  repairs.--

21         (1)  DEFINITIONS.--As used in this section, the term:

22         (a)  "Dealer" means a motor vehicle dealer as defined

23  in s. 320.60.

24         (b)  "Manufacturer" means a manufacturer as defined in

25  s. 320.60.

26         (c)  "Manufacturer's suggested retail price" means the

27  retail price of a new motor vehicle suggested by the

28  manufacturer, including the retail delivered price suggested

29  by the manufacturer for each accessory or item of optional

30  equipment physically attached to the new motor vehicle at the

31  time it is delivered to the motor vehicle dealer.

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1         (d)  "Motor vehicle" means any new automobile or truck

  2  the equitable or legal title to which has never been

  3  transferred by a manufacturer, distributor, importer, or

  4  dealer to an ultimate purchaser.

  5         (e)  "Replacement item" means a tire, a bumper, bumper

  6  fascia, glass, in-dashboard equipment, or any readily

  7  detachable component that is not structural in nature,

  8  including, but not limited to, exterior illumination units,

  9  grilles, sunroofs, external mirrors, and external body

10  cladding.

11         (f)  "Threshold amount" means 3 percent of the

12  manufacturer's suggested retail price of a motor vehicle or

13  $500, whichever is greater, based upon the actual cost of

14  repair to the vehicle.

15         (2)  RESPONSIBILITIES OF MANUFACTURER.--

16         (a)  A manufacturer shall disclose, in writing, to a

17  dealer at the time of delivery of a motor vehicle, damage and

18  repair to the motor vehicle which is known to the manufacturer

19  and which occurred at any time after the manufacturing process

20  is complete, but before delivery of the vehicle to the dealer,

21  if the cost of repairing the damage, excluding the cost of

22  replacing replacement items if identical manufacturer's

23  original equipment was used, exceeds the threshold amount.

24         (b)1.  Notwithstanding the terms of any franchise

25  agreement and except as provided in paragraph (d)1., the

26  manufacturer is liable for any and all damage to a motor

27  vehicle which is known to the manufacturer and which occurred

28  at any time after the manufacturing process is complete, but

29  before delivery to the dealer.

30         2.  Whenever a new motor vehicle is damaged in transit

31  and the carrier or the means of transportation is designated

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1  by the manufacturer or whenever a motor vehicle is otherwise

  2  damaged before delivery to the dealer, the dealer shall:

  3         a.  Notify the manufacturer of the damage within 7

  4  business days after the date the vehicle is delivered to the

  5  dealer or within any additional time specified in the

  6  franchise agreement; and

  7         b.  Request from the manufacturer authorization to

  8  replace the components, parts, and accessories damaged or to

  9  otherwise repair the damage.

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11  Nothing in this section relieves a dealer's obligation to

12  cooperate with the manufacturer as necessary on filing any

13  transportation damage claim with the carrier.

14         (c)  It is unlawful for any manufacturer to:

15         1.  Fail to assume all responsibility for any liability

16  resulting from structural or production defects.

17         2.  Fail to compensate any dealer for repairs effected

18  by the dealer to a damaged motor vehicle for which notice must

19  be given under paragraph (a) or to a motor vehicle damaged in

20  transit to the dealer when the carrier is designated by the

21  manufacturer.

22         (d)1.  If the dealer determines the method of

23  transportation, the risk of loss passes to the dealer upon

24  delivery of a motor vehicle to the carrier.

25         2.  In every other instance, the risk of loss remains

26  with the manufacturer until the dealer or his designee accepts

27  the motor vehicle from the carrier.

28         (e)  If the manufacturer refuses or fails to authorize

29  repair of any damage within 10 business days after receiving

30  notification given under this section or within any additional

31  time as specified in the franchise agreement, ownership of the

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1  motor vehicle shall revert to the manufacturer, and the dealer

  2  shall have no obligation, financial or otherwise, with respect

  3  to the motor vehicle, except that the manufacturer may elect

  4  to repurchase the motor vehicle from the dealer or provide

  5  reasonable and adequate compensation to the dealer to assist

  6  in selling or disposing of the vehicle, as long as the dealer

  7  has complied with all other contractual agreements with regard

  8  to damaged vehicles. If the manufacturer repurchases the motor

  9  vehicle, the dealer shall have no obligation, financial or

10  otherwise, with respect to the motor vehicle.

11         (3)  RESPONSIBILITIES OF DEALER.--A dealer shall

12  disclose, in writing, to the purchaser, including a purchaser

13  for resale, of a motor vehicle, damage and repair to the motor

14  vehicle which is known to the dealer, before entering into a

15  sales contract, if the cost of repairing the damage, excluding

16  the cost of replacing replacement items if identical

17  manufacturer's original equipment was used, exceeds the

18  threshold amount. The purchaser must provide written

19  acknowledgement that he or she has received the disclosure.

20         (4)  CONSUMER REMEDIES.--

21         (a)1.  A motor vehicle purchaser may file an action to

22  recover damages caused by a violation of the disclosure

23  requirements of this section. The court shall award a

24  purchaser who prevails in such action the amount of any

25  pecuniary loss, litigation costs, reasonable attorney's fees,

26  and appropriate equitable relief.

27         2.  An action brought under this section must be

28  commenced within 1 year after the discovery of the damage or

29  within 1 year after the time discovery reasonably should have

30  been made by the purchaser.

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1         3.  This section does not preclude a motor vehicle

  2  purchaser from pursuing other rights or remedies under any

  3  law, including an action under chapter 681.

  4         (b)  Failure to disclose any repaired damage that must

  5  be disclosed and that is within the knowledge of the selling

  6  dealer constitutes grounds for recission of the sales

  7  contract, provided that, within 30 days after the purchase,

  8  the motor vehicle is returned to the dealer with an

  9  accompanying written notice of the grounds for recission. In

10  case of recission under this paragraph, the dealer shall

11  accept the motor vehicle and refund any payments made to the

12  dealer in connection with the transaction, less a reasonable

13  allowance for the purchaser's use of the motor vehicle as

14  defined in s. 681.102(20). If the purchaser elects to proceed

15  under this paragraph, it shall be the purchaser's exclusive

16  remedy.

17         (c)  If disclosure is not required under this section,

18  a purchaser may not rescind a sales contract or bring a civil

19  action against the dealer or manufacturer based solely upon

20  the fact that the new motor vehicle was damaged and repaired

21  before completion of the sale.

22         Section 2.  Paragraph (n) of subsection (9) of section

23  320.27, Florida Statutes, is amended to read:

24         320.27  Motor vehicle dealers.--

25         (9)  DENIAL, SUSPENSION, OR REVOCATION.--The department

26  may deny, suspend, or revoke any license issued hereunder or

27  under the provisions of s. 320.77 or s. 320.771, upon proof

28  that a licensee has failed to comply with any of the following

29  provisions with sufficient frequency so as to establish a

30  pattern of wrongdoing on the part of the licensee:

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1         (n)  Failure to disclose damage to a new motor vehicle

  2  as defined in s. 320.60(10) as required in s. 501.98 of which

  3  the dealer had actual knowledge if the dealer's actual cost of

  4  repair, excluding tires, bumpers, and glass, exceeds 3 percent

  5  of the manufacturer's suggested retail price; provided,

  6  however, if only the application of exterior paint is

  7  involved, disclosure shall be made if such touch-up paint

  8  application exceeds $100.

  9         Section 3.  The Division of Statutory Revision is

10  requested to designate section 501.98, Florida Statutes, as

11  created by section 1 of this act, part VI of chapter 501,

12  Florida Statutes.

13         Section 4.  This act shall take effect July 1, 1998.

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    Florida Senate - 1998                           CS for SB 1104
    306-1862-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1104

  3

  4  The committee substitute assigns the previously unnumbered
    sections to a newly created section within Ch. 501, F.S.  The
  5  committee substitute revises the threshold amount for damage
    disclosure from 3 percent of the manufacturer's suggested
  6  retail price, to 3 percent of  the manufacturer's suggested
    retail price or $500, whichever is greater, excluding
  7  replacement items.

  8  The committee substitute expands the number of items that are
    considered replacement items (exempt from disclosure
  9  requirement, provided that they are replaced with identical
    manufacturer's original equipment) to include
10  readily-detachable components that are not structural in
    nature. Examples include exterior illumination units, grilles,
11  sunroofs, external mirrors, and external body cladding.

12  The committee substitute specifies that replacement items must
    be replaced by identical manufacturer's original equipment.
13  The committee substitute also provides that dealers must
    notify the manufacturer of damage within 7 business days.
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    The committee substitute provides that this section does not
15  preclude a consumer from other rights or remedies, and
    specifically cites the New Motor Vehicle Warranty Act (Lemon
16  Law).

17  The committee substitute provides that failure to make the
    disclosures required under this section constitutes the basis
18  for denial, suspension, or revocation of a motor vehicle
    dealer license.
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    The committee substitute provides that an action under this
20  section must be brought within 1 year of the discovery of the
    damage.
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