HB 0293

CS

CHAMBER ACTION

1	The Civil Justice Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to the RV Mediation and Arbitration
7	Program; amending s. 681.1096, F.S.; eliminating future
8	termination of the program; revising requirements for
9	program certification to ensure neutrality of dispute
10	resolution; providing guidelines for the training of
11	arbitrators and mediators; providing that the program must
12	complete all mediation and arbitration within 70 days of
13	receipt of the consumer's claim; requiring the program to
14	gather and make available all documents relevant to a
15	dispute; providing consumer exemption from mediation when
16	at least one manufacturer does not qualify for the
17	program; authorizing the Department of Legal Affairs to
18	revoke the qualification of a noncompliant program;
19	providing for notice to programs and manufacturers not in
20	compliance, for opportunity to correct deficiencies, and
21	for administrative hearings; requiring the program to
22	maintain dispute records; creating an annual reporting
23	requirement; providing the program with rulemaking
24	authority to implement provisions of this section;
25	amending s. 681.1097, F.S.; providing and revising dispute
26	resolution guidelines for consumers of recreational
27	vehicles; requiring consumers to submit their dispute to
28	the program; providing that the claim is considered filed
29	when it is date-stamped as received by the program;
30	requiring the consumer's application form to be prescribed
31	by the program; requiring the program administrator to
32	screen all applications to determine eligibility;
33	requiring the program administrator to provide notice of
34	rejected applications; providing for mandatory mediation
35	and the expansion of the scope of mediation at the consent
36	of the parties; providing guidelines for mediation
37	proceedings; requiring written response of manufacturers
38	to consumer allegations; removing requirement that the
39	program administrator notify the department of the
40	mediation outcome; extending the deadline for consumer
41	notification to the program administrator of a
42	manufacturer's failure to comply with a mediation
43	decision; revising guidelines for arbitration proceedings;
44	providing that technical rules of evidence shall not apply
45	to arbitration proceedings; providing for the expansion of
46	the scope of arbitration at the consent of the parties;
47	requiring the arbitrator's decision to consider all legal
48	and equitable factors; providing consumers with means for
49	civil enforcement of an award; extending the deadline for
50	consumer notification to the program administrator of a
51	manufacturer's failure to comply with an arbitration
52	decision; providing that the arbitrator's decision is
53	admissible as evidence in certain civil actions; providing
54	an effective date.
55
56	Be It Enacted by the Legislature of the State of Florida:
57
58	Section 1.  Section 681.1096, Florida Statutes, is amended
59	to read:
60	681.1096  Pilot RV Mediation and Arbitration Program;
61	creation and qualifications.--
62	(1)  This section and s. 681.1097 shall apply to disputes
63	determined eligible under this chapter involving recreational
64	vehicles acquired on or after October 1, 1997, and shall remain
65	in effect until September 30, 2006, at which time recreational
66	vehicle disputes shall be subject to the provisions of ss.
67	681.109 and 681.1095. The Attorney General shall report to the
68	President of the Senate, the Speaker of the House of
69	Representatives, the Minority Leader of each house of the
70	Legislature, and appropriate legislative committees regarding
71	the effectiveness of the pilot program.
72	(2)  Each manufacturer of a recreational vehicle involved
73	in a dispute that is determined eligible under this chapter,
74	including chassis and component manufacturers which separately
75	warrant the chassis and components and which otherwise meet the
76	definition of manufacturer set forth in s. 681.102(14), shall
77	participate in a mediation and arbitration program that is
78	deemed qualified by the department.
79	(3)  In order to be deemed qualified by the department, the
80	mediation and arbitration program must, at a minimum, meet the
81	following requirements:
82	(a)  The program must be administered by an administrator
83	and staff that are is sufficiently insulated from the
84	manufacturer to ensure impartial mediation and arbitration
85	services and to ensure that a manufacturer does not make
86	decisions as to whether a consumer's dispute proceeds to
87	mediation or arbitration.
88	(b)  Program administration fees must be timely paid by the
89	manufacturer, and no such fees shall be charged to a consumer.
90	(c)  The program must be competently and adequately funded
91	and staffed at a level sufficient to ensure the provision of
92	fair and expeditious dispute resolution services.
93	(d)  Program mediators and arbitrators must be sufficiently
94	insulated from a manufacturer to ensure the provision of
95	impartial mediation and arbitration of disputes.
96	(e)  Program mediators and arbitrators shall not be
97	employed by a manufacturer or a motor vehicle dealer.
98	(f)  Program mediators must complete a Florida Supreme
99	Court certified circuit or county mediation training program, or
100	other mediation training program approved by the department, in
101	addition to a minimum of one-half day of training on this
102	chapter conducted by the department.
103	(g)  Program mediators must comply with the Model Standards
104	of Conduct for Mediators issued by the American Arbitration
105	Association, the Dispute Resolution Section of the American Bar
106	Association, and the Society of Professionals in Dispute
107	Resolution.
108	(h)  Program arbitrators must complete a Florida Supreme
109	Court certified circuit or county arbitration program, or other
110	arbitration training program approved by the department, in
111	addition to a minimum of 1 day of training in the application of
112	this chapter and any rules adopted thereunder conducted by the
113	department.
114	(i)  Program arbitrators must comply with the Code of
115	Ethics for Arbitrators in Commercial Disputes published by the
116	American Arbitration Association and the American Bar
117	Association in 1977 and as amended.
118	(j)  The program must ensure that the mediators and
119	arbitrators are sufficiently trained in the program rules and
120	procedures and in the provisions of this chapter at least every
121	other year and as a precondition to serving in the program. The
122	program shall monitor the performance of the mediators and
123	arbitrators to ensure that they are performing competently and
124	impartially and are complying with all program rules and
125	procedures and the provisions of this chapter. Program
126	arbitrators must construe and apply the provisions of this
127	chapter and rules adopted thereunder in making decisions.
128	(k)  The program must complete all mediation and
129	arbitration of an eligible consumer claim within 70 days of the
130	program administrator's receipt of the claim from a consumer the
131	department. Failure of the program to complete all proceedings
132	within the prescribed period will not invalidate any settlement
133	agreement or arbitration decision. The program shall gather all
134	documents from the parties to a dispute that are necessary to a
135	full consideration of the dispute, including, but not limited
136	to, a statement of the respective complaints, positions, and
137	desired resolution by the consumer and each manufacturer. Copies
138	of documents submitted to the program shall be provided to all
139	parties involved in the dispute, the assigned mediator, and the
140	assigned arbitrator.
141	(l)  Mediation conferences and arbitration proceedings must
142	be held at reasonably convenient locations within the state so
143	as to enable a consumer to attend and present a dispute orally.
144	(4)  The department shall monitor the program for
145	compliance with this chapter. If the program is determined not
146	qualified or if qualification is revoked, then disputes shall be
147	subject to the provisions of ss. 681.109 and 681.1095. If the
148	program is determined not qualified or if qualification is
149	revoked as to a manufacturer, all those manufacturers
150	potentially involved in the eligible consumer dispute the
151	involved manufacturer shall be required to submit to arbitration
152	conducted by the board if such arbitration is requested by a
153	consumer and the dispute is deemed eligible for arbitration by
154	the division pursuant to s. 681.109. A consumer having a dispute
155	involving one or more manufacturers for which the program has
156	been determined not qualified, or for which qualification has
157	been revoked, shall not be required to submit the dispute to the
158	program irrespective of whether the program may be qualified as
159	to some of the manufacturers potentially involved in the
160	dispute.
161	(5)  A program failing to meet the requirements of this
162	section, s. 681.1097, and the rules adopted thereunder by the
163	department shall not be qualified by the department. The
164	department may revoke the qualification of a program for failure
165	to maintain compliance with the requirements of this section, s.
166	681.1097, and the rules adopted thereunder by the department.
167	The department may revoke the qualification of a program as to
168	one or more participating manufacturers for conduct to be
169	specified by the department by rule pursuant to ss. 120.536(1)
170	and 120.54.
171	(6)(5)  If a program is determined not qualified or if
172	qualification is revoked, or if program qualification is revoked
173	as to a particular manufacturer, the program administrator and
174	the involved manufacturer, if any, shall be notified by the
175	department of any deficiencies in the program or, in the case of
176	a manufacturer, notified of the manufacturer's conduct in
177	violation of this chapter or the rules adopted thereunder by the
178	department, shall be given an opportunity to correct such
179	deficiencies, except as set forth by the department by rule, and
180	shall be informed that it is entitled to a hearing pursuant to
181	chapter 120.
182	(7)(6)  The program administrator, mediators, and
183	arbitrators are exempt from civil liability arising from any act
184	or omission in connection with any mediation or arbitration
185	conducted under this chapter.
186	(8)(7)  The program administrator shall maintain records of
187	each dispute submitted to the program, including the recordings
188	of arbitration hearings. Such records shall be maintained in a
189	manner separate from other unrelated records of the program. All
190	records maintained by the program under this chapter shall be
191	public records and shall be available for inspection by the
192	department upon reasonable notice. The program shall retain all
193	records for each dispute for at least 5 years after the final
194	disposition of the dispute. The program shall furnish the
195	department with copies of all settlement agreements and
196	decisions within 30 days of the date of such settlements and
197	decisions. The records for disputes closed as of September 30 of
198	each year shall be turned over to the department by the program
199	administrator by no later than October 30 of the same year,
200	unless a later date is specified by the department.
201	(9)  The program shall provide the department with
202	quarterly and annual reports containing such information as the
203	department shall by rule prescribe.
204	(10)(8)  The department shall have the authority to adopt
205	reasonable rules pursuant to ss. 120.536(1) and 120.54 to
206	implement carry out the provisions of this section.
207	Section 2.  Section 681.1097, Florida Statutes, is amended
208	to read:
209	681.1097  Pilot RV Mediation and Arbitration Program;
210	dispute eligibility and program function.--
211	(1)  Before filing a civil action on a matter subject to s.
212	681.104, a consumer who acquires a recreational vehicle must
213	first submit the dispute to the department, and to the program
214	if the dispute is deemed eligible. Such consumer is not required
215	to resort to a procedure certified pursuant to s. 681.108,
216	notwithstanding that one of the manufacturers of the
217	recreational vehicle has such a procedure. Such consumer is not
218	required to resort to arbitration conducted by the board, except
219	as provided in s. 681.1096(4) and in this section.
220	(2)  A consumer acquiring a recreational vehicle must apply
221	to participate in this program with respect to a claim arising
222	during the Lemon Law rights period by filing the application in
223	subsection (3) with the program department no later than 60 days
224	after the expiration of the Lemon Law rights period. The claim
225	is considered filed when the application is date-stamped as
226	received by the program.
227	(3)  The consumer's application for participation in the
228	program must be on a form prescribed or approved by the program
229	department. The program administrator department shall screen
230	all applications to participate in the program to determine
231	eligibility. The department shall forward to the program
232	administrator all applications the department determines are
233	potentially entitled to relief under this chapter.
234	(a)  If the department determines the application lacks
235	sufficient information from which a determination of eligibility
236	can be made, the department shall request additional information
237	from the consumer and, upon review of such additional
238	information, shall determine whether the application is eligible
239	or reject the application as incomplete.
240	(b)  The department shall reject any application it
241	determines to be fraudulent or outside the scope of this
242	chapter.
243	(a)(c)  The consumer and the manufacturer shall be notified
244	in writing by the program administrator department if an
245	application is rejected. Such notification of rejection shall
246	include a brief explanation as to the reason for the rejection.
247	(b)(d)  If the program administrator department rejects a
248	dispute, the consumer may file a lawsuit to enforce the remedies
249	provided under this chapter. In any civil action arising under
250	this chapter and relating to the matter considered by the
251	program department, any determination made to reject a dispute
252	is admissible in evidence.
253	(e)  The department may delegate responsibility for the
254	screening of claims to the program, in which event claims filed
255	with the department shall be forwarded to the program
256	administrator and the provisions of this section shall apply to
257	claims screened by the program.
258	(4)  Mediation shall be mandatory for both the consumer and
259	manufacturer, unless the dispute is settled prior to the
260	scheduled mediation conference. The mediation conference shall
261	be confidential and inadmissible in any subsequent adversarial
262	proceedings. Participation shall be limited to the parties
263	directly involved in the dispute and their attorneys, if any.
264	All manufacturers shall be represented by persons with
265	settlement authority. The parties may, by agreement, consent to
266	expand the scope of a mediation conference to attempt to resolve
267	warranty claims by the consumer that may not be covered under
268	this chapter, provided such claims were reported by the consumer
269	to the manufacturer or its authorized service agent during the
270	term of the manufacturer's express warranty.
271	(a)  Upon determination that an application is eligible
272	receipt of an eligible application, the program administrator
273	shall notify the consumer and all involved manufacturers in
274	writing that an eligible application has been received. Such
275	notification shall include a statement that a mediation
276	conference will be scheduled, shall identify the assigned
277	mediator, and provide information regarding the program's
278	procedures. The program administrator shall provide all involved
279	manufacturers with a copy of the completed application and
280	obtain from each manufacturer a written response to the
281	allegations contained in the application along with copies of
282	any documents in support of such response. The written response
283	shall be on a form and submitted in the manner prescribed by the
284	program.
285	(b)  The mediator shall be selected and assigned by the
286	program administrator. The parties may factually object to a
287	mediator based upon the mediator's past or present relationship
288	with a party or a party's attorney, direct or indirect, whether
289	financial, professional, social, or of any other kind. The
290	program administrator shall consider any such objection,
291	determine its validity, and notify the parties of any
292	determination. If the objection is determined valid, the program
293	administrator shall assign another mediator to the case.
294	(c)  At the mediation conference, the mediator shall assist
295	the parties' efforts to reach a mutually acceptable settlement
296	of their dispute; however, the mediator shall not impose any
297	settlement upon the parties.
298	(d)  Upon conclusion of the mediation conference, the
299	mediator shall notify the program administrator that the case
300	has settled or remains at an impasse. The program administrator
301	shall notify the department in writing of the outcome of the
302	mediation.
303	(e)  If the mediation conference ends in an impasse, it
304	shall proceed to arbitration pursuant to subsection (5). The
305	program administrator shall immediately notify the parties in
306	writing that the dispute will proceed to arbitration and shall
307	identify the assigned arbitrator.
308	(f)  If the parties enter into a settlement at any time
309	after the dispute has been submitted to the program, such
310	settlement must be reduced to legible writing, signed by the
311	consumer and all involved manufacturers, and filed with the
312	program administrator. The program administrator shall send a
313	copy to the department. All settlements must contain, at a
314	minimum, the following information:
315	1.  Name and address of the consumer.
316	2.  Name and address of each involved manufacturer.
317	3.  Year, make, model, and vehicle identification number of
318	the subject recreational vehicle.
319	4.  Name and address of the dealership from which the
320	recreational vehicle was acquired.
321	5.  Date the claim was received by the program
322	administrator.
323	6.  Name of the mediator and/or arbitrator, if any.
324	7.  A complete statement of the terms of the agreement,
325	including, but not limited to: whether the vehicle is to be
326	reacquired by a manufacturer and the identity of the
327	manufacturer that will reacquire the vehicle; the amount of any
328	moneys to be paid by the consumer and/or a manufacturer; the
329	year, make, and model of any replacement motor vehicle or motor
330	vehicle accepted by the consumer as a trade-assist; the date,
331	time, location, and nature of any agreed upon repair or
332	replacement of a component part or accessory and an estimate as
333	to the anticipated length of time for such repair or
334	replacement; and a time certain for performance not to exceed 40
335	days from the date the settlement agreement is signed by the
336	parties.
337	(g)  If a manufacturer fails to perform within the time
338	required in any settlement agreement, the consumer must notify
339	the program administrator of such failure in writing within 30
340	10 days of the required performance date. Within 10 days of
341	receipt of such notice, the program administrator shall
342	determine whether the dispute is eligible to proceed to
343	arbitration notify the department of the manufacturer's failure
344	in compliance and shall schedule the matter for an arbitration
345	hearing pursuant to subsection (5). If the program administrator
346	determines the dispute is not eligible for arbitration, the
347	dispute shall be rejected pursuant to subsection (3).
348	(5)  If the mediation ends in an impasse, or if a
349	manufacturer fails to comply with the settlement entered into
350	between the parties, the program administrator shall schedule
351	the dispute for an arbitration hearing. Arbitration proceedings
352	shall be open to the public on reasonable and nondiscriminatory
353	terms.
354	(a)  The arbitration hearing shall be conducted by a single
355	arbitrator assigned by the program administrator. The arbitrator
356	shall not be the same person as the mediator who conducted the
357	prior mediation conference in the dispute. The parties may
358	factually object to an arbitrator based on the arbitrator's past
359	or present relationship with a party or a party's attorney,
360	direct or indirect, whether financial, professional, social, or
361	of any other kind. The program administrator shall consider any
362	such objection, determine its validity, and notify the parties
363	of any determination. If the objection is determined valid, the
364	program administrator shall assign another arbitrator to the
365	case.
366	(b)  The arbitrator may issue subpoenas for the attendance
367	of witnesses and for the production of records, documents, and
368	other evidence. Subpoenas so issued shall be served and, upon
369	application to the court by a party to the arbitration, enforced
370	in the manner provided by law for the service and enforcement of
371	subpoenas in civil actions. Fees for attendance as a witness
372	shall be the same as for a witness in the circuit court.
373	(c)  At all program arbitration proceedings, the parties
374	may present oral and written testimony, present witnesses and
375	evidence relevant to the dispute, cross-examine witnesses, and
376	be represented by counsel. The technical rules of evidence as
377	are applicable to civil court proceedings shall not apply to
378	arbitrations conducted by the program. The arbitrator shall
379	record the arbitration hearing and shall have the power to
380	administer oaths. The arbitrator may inspect the vehicle if
381	requested by a party or if the arbitrator considers such
382	inspection appropriate. The parties may, by mutual written
383	agreement, consent to expand the scope of the arbitration
384	hearing to permit consideration by the arbitrator of warranty
385	claims by the consumer that may not be covered under this
386	chapter, provided such claims were first reported by the
387	consumer to the manufacturer or its authorized service agent
388	during the term of the manufacturer's express warranty.
389	(d)  The program arbitrator may continue a hearing on his
390	or her own motion or upon the request of a party for good cause
391	shown. A request for continuance by the consumer constitutes a
392	waiver of the time period set forth in s. 681.1096(3)(k) for
393	completion of all proceedings under the program.
394	(e)  Where the arbitration is the result of a
395	manufacturer's failure to perform in accordance with a
396	settlement agreement, any relief to the consumer granted by the
397	arbitration will be no less than the relief agreed to by the
398	manufacturer in the settlement agreement.
399	(e)(f)  The arbitrator shall, in rendering decisions, take
400	into account all legal and equitable factors germane to a fair
401	and just decision, including, but not limited to, the warranty
402	and the provisions of this chapter grant relief if a reasonable
403	number of attempts have been undertaken to correct a
404	nonconformity or nonconformities.
405	(f)(g)  The program arbitrator shall render a decision
406	within 10 days of the closing of the hearing. The decision shall
407	be in legible writing on a form prescribed or approved by the
408	program department. The program administrator shall send a copy
409	of the decision to the consumer and each involved manufacturer
410	by registered mail. The program administrator shall also send a
411	copy of the decision to the department within 5 days of mailing
412	to the parties.
413	(g)(h)  A manufacturer shall comply with an arbitration
414	decision within 40 days of the date the manufacturer receives
415	the written decision. Compliance occurs on the date the consumer
416	receives delivery of an acceptable replacement motor vehicle or
417	the relief refund specified in the arbitration award.
418	(h)  If a manufacturer fails to comply within the time
419	required, and no appeal has been filed, the consumer shall must
420	notify the program administrator of such failure in writing
421	within 30 10 days. The program administrator shall notify the
422	department of a manufacturer's failure to comply. A consumer may
423	apply to a court of competent jurisdiction in this state for
424	entry of an order confirming the award. Such application shall
425	be by motion filed within 40 days of the manufacturer's failure
426	to comply and shall be heard in the manner and upon notice
427	provided by law or rule of court for the making and hearing of
428	motions. Such application shall be served in the manner provided
429	by law for the service of a civil summons. The consumer shall
430	send a copy of the application for confirmation of the award and
431	any order entered by the court confirming the award to the
432	program administrator. The department shall have the authority
433	to enforce compliance with arbitration decisions under this
434	section in the same manner as is provided for enforcement of
435	compliance with board decisions under s. 681.1095(10). In any
436	civil action arising under this chapter and relating to a
437	dispute arbitrated pursuant to this section, the decision of the
438	arbitrator is admissible in evidence.
439	(i)  Either party may request that the program arbitrator
440	make a technical correction to the decision by filing a written
441	request with the program administrator within 10 days after
442	receipt of the written decision. Technical corrections shall be
443	limited to computational errors, correction of a party's name or
444	information regarding the recreational vehicle, and
445	typographical or spelling errors. Technical correction of a
446	decision shall not toll the time for filing an appeal or for
447	manufacturer compliance.
448	(6)  Except as otherwise provided, all provisions in this
449	section pertaining to mandatory mediation and arbitration,
450	eligibility screening, mediation proceedings, arbitration
451	hearings and decisions, and any appeals thereof are exempt from
452	the provisions of chapter 120.
453	(7)  A decision of the arbitrator is binding unless
454	appealed by either party by filing a petition with the circuit
455	court within the time and in the manner prescribed by s.
456	681.1095(10) and (12). Section 681.1095(13) and (14) apply to
457	appeals filed under this section. If a decision of a program
458	arbitrator in favor of a consumer is confirmed by the court,
459	recovery by the consumer shall include the pecuniary value of
460	the award, attorney's fees incurred in obtaining confirmation of
461	the award, and all costs and continuing damages in the amount of
462	$25 per day for each day beyond the 40-day period following a
463	manufacturer's receipt of the arbitrator's decision. If a court
464	determines the manufacturer acted in bad faith in bringing the
465	appeal or brought the appeal solely for the purpose of
466	harassment, or in complete absence of a justiciable issue of law
467	or fact, the court shall double, and may triple, the amount of
468	the total award.
469	(8)  In any civil action arising under this chapter
470	relating to a dispute arbitrated pursuant to this section, the
471	decision of the arbitrator is admissible in evidence.
472	(9)(8)  The department shall have the authority to adopt
473	reasonable rules pursuant to ss. 120.536(1) and 120.54 to
474	implement carry out the provisions of this section.
475	Section 3.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.