Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. CS for SB 292
                                Barcode 719480                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/09/2013           .                                

       The Committee on Judiciary (Richter) recommended the following:
    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, or, if not available, the
   49  claimant’s best estimate of the amount of damages.
   50         (e) To the extent available to the claimant, be accompanied
   51  by all transaction or other documents upon which the claim is
   52  based.
   54  In any challenge to the claimant’s compliance with this
   55  subsection, the demand letter shall be deemed satisfactory if it
   56  contains sufficient information to reasonably put the dealer on
   57  notice of the nature of the claim and the relief sought.
   58         (3) The demand letter must be delivered by the United
   59  States Postal Service or by a nationally recognized carrier,
   60  return receipt requested, to the address at which the subject
   61  vehicle was purchased or leased or at which the subject
   62  transaction occurred, or an address at which the dealer
   63  regularly conducts business.
   64         (4) Notwithstanding any provision of this chapter:
   65         (a) A claimant may not initiate civil litigation, including
   66  arbitration, against a dealer or its employees, agents,
   67  principals, sureties, or insurers for a claim arising under this
   68  chapter related to, or in connection with, the transaction or
   69  event described in the demand letter if, within 30 days after
   70  receipt of the demand letter, the dealer pays the claimant the
   71  amount sought in the demand letter, plus a surcharge of the
   72  lesser of $500 or 10 percent of the damages claimed.
   73         (b) A dealer and its employees, agents, principals,
   74  sureties, and insurers may not be required to pay the attorney
   75  fees of the claimant in any action brought under this chapter
   76  if:
   77         1. The dealer, within 30 days after receipt of the demand
   78  letter, notifies the claimant in writing, and a court or
   79  arbitrator subsequently agrees that the amount sought in the
   80  demand letter is not reasonable in light of the facts of the
   81  transaction or event described in the demand letter or if the
   82  demand letter includes items and amounts not properly
   83  recoverable under this chapter; or
   84         2. The claimant fails to sufficiently comply with this
   85  section; however, to the extent that there is a challenge to the
   86  sufficiency of the demand letter, the demand letter shall be
   87  deemed satisfactory if it contains sufficient information to
   88  reasonably put the dealer on notice of the nature of the claim
   89  and the amount and relief sought such that the dealer could
   90  appropriately respond.
   91         (5) The demand letter required by this section expires 30
   92  days after receipt by the dealer, unless renewed by the
   93  claimant, and does not place a limitation on the damages that
   94  the claimant may claim in any subsequently maintained civil
   95  litigation, including arbitration. Payment of the damages
   96  claimed in the demand letter and the required surcharge as set
   97  forth in this section within 30 days after receipt of the demand
   98  letter:
   99         (a) Does not constitute an admission of any wrongdoing or
  100  liability by the dealer.
  101         (b) Is protected under s. 90.408 from introduction as
  102  evidence during any civil litigation, including arbitration.
  103         (c) Releases the dealer and its employees, agents,
  104  principals, sureties, and insurers from any claim, suit, or
  105  other action that could be brought arising out of, or in
  106  connection with, the specific transaction, event, or occurrence
  107  described in the demand letter; but does not serve as a release
  108  as to items of damages that are not recoverable under this
  109  chapter.
  110         (6) The applicable time limitations for initiating an
  111  action under this chapter are tolled for 30 days after the date
  112  of delivery of the demand letter to the dealer pursuant to
  113  subsection (3), or such other period agreed to in writing and
  114  signed by the parties after the demand letter is received by the
  115  dealer.
  116         (7) This section does not apply to any action brought as a
  117  class action that is ultimately certified as a class action or
  118  to any action brought by the enforcing authority.
  119         (8) If a claimant initiates civil litigation, including
  120  arbitration, without first complying with this section, the
  121  court or arbitrator shall stay the action upon timely motion
  122  until the claimant complies with this section. Attorney fees and
  123  court or arbitration costs incurred by the claimant before
  124  compliance with this section are not recoverable under this
  125  chapter.
  126         (9) This section applies only to civil litigation,
  127  including arbitration, arising out of a transaction for which
  128  the dealer has provided the following written notice to the
  129  consumer, which must be acknowledged by the consumer, and which
  130  must be in a font size no smaller than that of the predominant
  131  text on the page in which the notice is disclosed, or if it is
  132  disclosed by itself, in a font size of at least 12 point:
  134         Section 501.98, Florida Statutes, requires that, at
  135         least 30 days before bringing any claim against a
  136         motor vehicle dealer for an unfair or deceptive trade
  137         practice, a consumer must provide the dealer with a
  138         written demand letter stating the name, address, and
  139         telephone number of the consumer; the name and address
  140         of the dealer; a description of the facts that serve
  141         as the basis for the claim; the amount of damages; and
  142         copies of any documents in the possession of the
  143         consumer which relate to the claim. Such notice must
  144         be delivered by the United States Postal Service or by
  145         a nationally recognized carrier, return receipt
  146         requested, to the address where the subject vehicle
  147         was purchased or leased or where the subject
  148         transaction occurred, or an address at which the
  149         dealer regularly conducts business.
  150         Section 3. This act shall take effect July 1, 2013.
  152  ================= T I T L E  A M E N D M E N T ================
  153         And the title is amended as follows:
  154         Delete everything before the enacting clause
  155  and insert:
  156                        A bill to be entitled                      
  157         An act relating to deceptive and unfair trade
  158         practices; amending s. 501.975, F.S.; conforming
  159         provisions; creating s. 501.98, F.S.; requiring a
  160         claimant to provide a demand letter to the motor
  161         vehicle dealer as a condition precedent to initiating
  162         civil litigation, including arbitration, against such
  163         dealer under the Florida Deceptive and Unfair Trade
  164         Practices Act; providing for expiration of the demand
  165         letter after a specified period; providing for the
  166         tolling of applicable time limitations for initiating
  167         actions; requiring a stay of civil litigation,
  168         including arbitration, brought without compliance with
  169         the demand letter requirements; providing an
  170         additional opportunity for claimants to comply with
  171         specified provisions; providing a condition that
  172         constitutes waiver of notice; providing for
  173         applicability; requiring that a specified notice be
  174         provided to consumers and acknowledged before
  175         provisions may apply; providing an effective date.