Florida Senate - 2012                                    SB 1512
       
       
       
       By Senator Evers
       
       
       
       
       2-01457-12                                            20121512__
    1                        A bill to be entitled                      
    2         An act relating to unfair or deceptive acts or
    3         practices involving motor vehicles; amending s.
    4         501.975, F.S.; defining the term “business day” and
    5         conforming provisions; creating s. 501.977, F.S.;
    6         providing for the disposition of certain claims
    7         against motor vehicle dealers before civil litigation;
    8         requiring claimants to provide written notice of such
    9         claims to motor vehicle dealers before initiating
   10         litigation; specifying the required contents and
   11         procedures for providing the written notices;
   12         directing the Department of Legal Affairs to adopt a
   13         notice-of-claim form; authorizing the department to
   14         adopt rules; requiring motor vehicle dealers to
   15         provide a copy of the notice-of-claim form to each
   16         customer; authorizing claimants to initiate litigation
   17         without prior notice to motor vehicle dealers that do
   18         not provide copies of the notice-of-claim form;
   19         prohibiting a claimant from initiating litigation
   20         against a motor vehicle dealer that pays the actual
   21         damages claimed plus a surcharge within a specified
   22         period; limiting a motor vehicle dealer’s further
   23         liability upon payment of a claim; limiting a motor
   24         vehicle dealer’s liability for payment of attorney
   25         fees under certain circumstances; tolling time
   26         limitations for initiating litigation against motor
   27         vehicle dealers under certain circumstances; limiting
   28         admissibility of a motor vehicle dealer’s payment or
   29         offer to pay a claimant’s actual damages; providing
   30         applicability; providing an effective date.
   31  
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 501.975, Florida Statutes, is amended to
   35  read:
   36         501.975 Definitions.—As used in this part s. 501.976, the
   37  term following terms shall have the following meanings:
   38         (1) “Business day” means any day other than a Saturday,
   39  Sunday, or legal holiday.
   40         (2)(1) “Customer” includes a customer’s designated agent.
   41         (3)(2) “Dealer” means a motor vehicle dealer as defined in
   42  s. 320.27, but does not include a motor vehicle auction as
   43  defined in s. 320.27(1)(c)4.
   44         (4)(3) “Replacement item” means a tire, bumper, bumper
   45  fascia, glass, in-dashboard equipment, seat or upholstery cover
   46  or trim, exterior illumination unit, grill, sunroof, external
   47  mirror and external body cladding. The replacement of up to
   48  three of these items does not constitute repair of damage if
   49  each item is replaced because of a product defect or damaged due
   50  to vandalism while the new motor vehicle is under the control of
   51  the dealer and the items are replaced with original manufacturer
   52  equipment, unless an item is replaced due to a crash, collision,
   53  or accident.
   54         (5)(4) “Threshold amount” means 3 percent of the
   55  manufacturer’s suggested retail price of a motor vehicle or
   56  $650, whichever is less.
   57         (6)(5) “Vehicle” means any automobile, truck, bus,
   58  recreational vehicle, or motorcycle required to be licensed
   59  under chapter 320 for operation over the roads of Florida, but
   60  does not include trailers, mobile homes, travel trailers, or
   61  trailer coaches without independent motive power.
   62         Section 2. Section 501.977, Florida Statutes, is created to
   63  read:
   64         501.977 Disposal of claims before civil litigation; notice
   65  of claim.—
   66         (1) At least 15 days before a claimant may initiate civil
   67  litigation against a dealer under part II or this part, the
   68  claimant must provide the dealer with written notice of the
   69  claim and the claimant’s good-faith intent to initiate
   70  litigation. The written notice of claim must include:
   71         (a) A statement that the notice of claim is provided under
   72  this section.
   73         (b) The name, address, and telephone number of the
   74  claimant.
   75         (c) The name and address of the dealer.
   76         (d) The date and description of the transaction, event, or
   77  circumstances upon which the claim is based.
   78         (e) The provisions of part II or this part which the dealer
   79  is claimed to have violated and a specific description of the
   80  underlying facts that show the violation.
   81         (f) A comprehensive, detailed statement describing each
   82  item for which actual damages are claimed and recoverable under
   83  part II or this part and the amount claimed for each item,
   84  including, to the extent applicable, the formula or basis by
   85  which the damages are calculated.
   86         (2)(a) The Department of Legal Affairs shall adopt a
   87  notice-of-claim form that provides blank spaces for the
   88  information required under subsection (1) and includes an
   89  explanation of part II and this part. The department shall
   90  publish a copy of its notice-of-claim form on the department’s
   91  Internet website. The department may adopt rules to administer
   92  this paragraph.
   93         (b) A dealer shall provide a copy of the department’s
   94  notice-of-claim form to each customer at the time of each
   95  transaction, and the dealer must include on the form the name or
   96  position title and address of the person to whom the notice of
   97  claim must be provided under subsection (4) or the name and
   98  address of the dealer’s business division assigned by the dealer
   99  with responsibility for processing claims.
  100         (c) A dealer’s failure to provide a copy of the
  101  department’s notice-of-claim form to a claimant constitutes
  102  waiver of the dealer’s right to notice under this section, and,
  103  notwithstanding subsection (1), the claimant may initiate civil
  104  litigation without providing the dealer with prior notice of the
  105  claim.
  106         (3) Each notice of claim, to the extent applicable, must be
  107  accompanied by a copy of each transaction or other document upon
  108  which the claim is based or upon which the claimant relied in
  109  asserting the claim.
  110         (4)(a) A notice of claim must be provided to the dealer by
  111  certified or registered United States mail, return receipt
  112  requested, to the dealer’s registered agent, any person listed
  113  in s. 48.081(1) if the dealer does not have a registered agent,
  114  or, if included on the notice-of-claim form provided to
  115  customers by the dealer, the dealer’s business division assigned
  116  by the dealer with responsibility for processing claims.
  117         (b) If the dealer pays the claim under paragraph (5)(a) and
  118  if requested by the claimant, the dealer shall reimburse the
  119  claimant for the postal costs of providing the notice.
  120         (5) Notwithstanding any provision of part II or this part:
  121         (a) A claimant may not initiate civil litigation against a
  122  dealer under part II or this part if the dealer, within 15
  123  business days after receipt of the notice of claim, pays to the
  124  claimant:
  125         1. The amount of actual damages claimed in the notice under
  126  paragraph (1)(f).
  127         2. A surcharge equal to 10 percent of the amount of actual
  128  damages claimed in the notice, not to exceed a surcharge of
  129  $500. A claimant is not entitled to a surcharge if the dealer
  130  rejects or does not respond to the claimant’s notice of claim.
  131         (b) A dealer that pays the claimant for actual damages and
  132  the surcharge is not further liable to the claimant for the
  133  transaction, event, or circumstances described in the notice of
  134  claim.
  135         (c) A dealer is not required to pay the claimant’s attorney
  136  fees in any civil litigation initiated under part II or this
  137  part if the dealer, within 15 business days after receipt of the
  138  notice of claim, notifies the claimant in writing, and a court
  139  or arbitrator agrees, that:
  140         1. The amount claimed is not supported by the underlying
  141  facts described in the notice of claim or by generally accepted
  142  accounting principles or the amount claimed includes items that
  143  are not recoverable under part II or this part; or
  144         2. The claimant has not substantially complied with this
  145  section.
  146         (d) Any time limitation on initiating civil litigation
  147  under part II or this part is tolled for 15 business days, or
  148  for such other period as agreed to in writing by the parties,
  149  after the date that the notice of claim provided to the dealer
  150  under paragraph (4)(a) is postmarked by the United States Postal
  151  Service.
  152         (6) A dealer’s payment of the claimant’s actual damages or
  153  offer to pay such damages is:
  154         (a) Not an admission of any wrongdoing by the dealer.
  155         (b) Inadmissible as evidence under s. 90.408.
  156         (7) For purposes of this section, payment by a dealer is
  157  deemed paid on the date that a draft or other valid payment
  158  instrument is postmarked by the United States Postal Service,
  159  date-stamped with a verifiable tracking number by a common
  160  carrier, or delivered, if a postmark or verifiable tracking
  161  number is not available.
  162         (8) This section does not apply to:
  163         (a) A claim for actual damages brought and certified as a
  164  maintainable class action.
  165         (b) An action brought by the enforcing authority as defined
  166  in s. 501.203.
  167         (c) An act or practice required or specifically authorized
  168  by federal law or any provision of state law except chapter 501.
  169         (d) A claim for personal injury or death or a claim for
  170  damage to tangible personal property other than the property
  171  that is the subject of the customer transaction.
  172         Section 3. This act shall take effect upon becoming a law.