Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. SB 292
                                Barcode 666404                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/19/2013           .                                

       The Committee on Commerce and Tourism (Richter) recommended the
    1         Senate Amendment (with title amendment)
    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 Demand letter.—
   34         (1) As a condition precedent to initiating any civil
   35  litigation, including arbitration, arising under this chapter
   36  against a motor vehicle dealer, which may also include its
   37  employees, agents, principals, sureties, and insurers, a
   38  claimant must give the dealer a written demand letter at least
   39  30 days before initiating the litigation.
   40         (2) The demand letter, which must be completed in good
   41  faith, must:
   42         (a)State the name, address, and telephone number of the
   43  claimant.
   44         (b)State the name and address of the dealer.
   45         (c)Describe the underlying facts of the claim, including a
   46  statement describing each item for which actual damages are
   47  claimed.
   48         (d)State the amount of damages claimed.
   49         (e)To the extent available to the claimant, be accompanied
   50  by all transaction or other documents upon which the claim is
   51  based.
   53  In any challenge to the claimant’s compliance with this
   54  subsection, the demand letter shall be deemed satisfactory if it
   55  contains sufficient information to reasonably put the dealer on
   56  notice of the nature of the claim and the relief sought.
   57         (3)The demand letter must be delivered by the United
   58  States Postal Service or by a nationally recognized carrier,
   59  return receipt requested, to the address where the subject
   60  vehicle was purchased or leased or where the subject transaction
   61  occurred, or any address at which the dealer regularly conducts
   62  business.
   63         (4)Notwithstanding any provision of this chapter:
   64         (a)A claimant may not initiate civil litigation, including
   65  arbitration, against a dealer or its employees, agents,
   66  principals, sureties, or insurers for a claim arising under this
   67  chapter related to, or in connection with, the transaction or
   68  event described in the demand letter if, within 30 days after
   69  receipt of the demand letter, the dealer pays the claimant the
   70  amount sought in the demand letter, plus a surcharge of $500, if
   71  the claimant is represented by an attorney.
   72         (b)A dealer and its employees, agents, principals,
   73  sureties, and insurers may not be required to pay the attorney
   74  fees of the claimant in any action brought under this chapter
   75  if:
   76         1.The dealer, within 30 days after receipt of the demand
   77  letter, notifies the claimant in writing, and a court or
   78  arbitrator agrees, that the amount sought in the demand letter
   79  is not reasonable in light of the facts of the transaction or
   80  event described in the demand letter or if the demand letter
   81  includes items and amounts not properly recoverable under this
   82  chapter; or
   83         2.The claimant fails to sufficiently comply with this
   84  section; however, to the extent that there is a challenge to the
   85  sufficiency of the demand letter, the demand letter shall be
   86  deemed satisfactory if it contains sufficient information to
   87  reasonably put the dealer on notice of the nature of the claim
   88  and the amount and relief sought such that the dealer could
   89  appropriately respond.
   90         (5)The demand letter required by this section expires 30
   91  days after receipt by the dealer, unless renewed by the
   92  claimant, and does not place a limitation on the damages that
   93  the claimant may claim in subsequently maintained civil
   94  litigation, including arbitration. Payment of the damages
   95  claimed in the demand letter and the required surcharge as set
   96  forth in this section within 30 days of receipt of the demand
   97  letter:
   98         (a) Does not constitute an admission of any wrongdoing or
   99  liability by the dealer.
  100         (b) Is protected under s. 90.408 from introduction as
  101  evidence during any civil litigation, including arbitration.
  102         (c) Releases the dealer and its employees, agents,
  103  principals, sureties, and insurers from any claim, suit, or
  104  other action that could be brought arising out of, or in
  105  connection with, the specific transaction, event, or occurrence
  106  described in the demand letter; but does not serve as a release
  107  as to items of damages that are not included in the demand
  108  letter and not recoverable under this chapter.
  109         (6)The applicable time limitations for initiating an
  110  action under this chapter are tolled for 30 days after the date
  111  of delivery of the demand letter to the dealer pursuant to
  112  subsection (3), or such other period agreed to in writing and
  113  signed by the parties after the demand letter is received by the
  114  dealer.
  115         (7) This section does not apply to any action brought as a
  116  class action that is ultimately certified as a class action or
  117  any action brought by the enforcing authority.
  118         (8)If a claimant initiates civil litigation, including
  119  arbitration, without first complying with the provisions of this
  120  section, the court or arbitrator shall stay the action upon
  121  timely motion until the claimant complies with this section.
  122  Attorney fees and court or arbitration costs incurred by the
  123  claimant before compliance with this section are not recoverable
  124  under this chapter.
  125         (9)This section applies only to civil litigation,
  126  including arbitration, arising out of a transaction for which
  127  the dealer has provided the following written notice to the
  128  consumer, which must be in a font size no smaller than that of
  129  the predominant text on the page in which the claim is
  130  disclosed, or if it is disclosed by itself, in a font size of at
  131  least 12 points:
  133         “Section 501.98, Florida Statutes, requires that, at
  134         least 30 days before bringing any claim against a
  135         motor vehicle dealer for an unfair or deceptive trade
  136         practice, a consumer must provide the dealer with a
  137         written demand letter stating the name, address, and
  138         telephone number of the consumer; the name and address
  139         of the dealer; a description of the facts that serve
  140         as the basis for the claim; the amount of damages
  141         claimed; and copies of any documents in the possession
  142         of the consumer which relate to the claim. Such notice
  143         must be delivered by the United States Postal Service
  144         or by a nationally recognized carrier, return receipt
  145         requested to the address where the subject vehicle was
  146         purchased or leased or where the subject transaction
  147         occurred, or any address at which the dealer regularly
  148         conducts business.”
  150         Section 2. This act shall take effect July 1, 2013.
  151  ================= T I T L E  A M E N D M E N T ================
  152         And the title is amended as follows:
  153         Delete everything before the enacting clause
  154  and insert:
  155                        A bill to be entitled                      
  156         An act relating to deceptive and unfair trade
  157         practices; amending s. 501.975, F.S.; making technical
  158         changes; creating s. 501.98, F.S.; requiring a
  159         claimant to provide a demand letter to the motor
  160         vehicle dealer as a condition precedent to initiating
  161         civil litigation against such dealer under the Florida
  162         Deceptive and Unfair Trade Practices Act; providing
  163         for requirements and expiration of the demand letter;
  164         providing exceptions for liability for payment of
  165         attorney fees; providing for the tolling of applicable
  166         time limitations for initiating actions; providing an
  167         additional opportunity for claimants to comply with
  168         specified provisions; providing that attorney fees and
  169         other costs incurred by a claimant before compliance
  170         with certain provisions are not recoverable; providing
  171         for applicability; requiring that a specified notice
  172         be provided to consumers before provisions may apply;
  173         providing an effective date.