Florida Senate - 2013                                     SB 292
       By Senator Richter
       23-00194-13                                            2013292__
    1                        A bill to be entitled                      
    2         An act relating to deceptive and unfair trade
    3         practices; amending s. 501.975, F.S.; conforming
    4         provisions; creating s. 501.98, F.S.; requiring a
    5         claimant to provide a demand letter to the motor
    6         vehicle dealer as a condition precedent to initiating
    7         civil litigation against such dealer under the Florida
    8         Deceptive and Unfair Trade Practices Act; providing
    9         for the tolling of applicable time limitations for
   10         initiating actions; providing requirements for the
   11         demand letter; providing that a dealer and its
   12         employees, agents, principals, sureties, and insurers
   13         are not required to pay attorney fees in certain
   14         circumstances; providing that payment or offer of
   15         payment of the damages does not constitute an
   16         admission of wrongdoing or liability, is protected
   17         from introduction as evidence in a civil litigation,
   18         and releases the dealer from any claim, suit, and
   19         action; providing for applicability; requiring that a
   20         specified notice be provided to consumers before
   21         provisions may apply; providing an effective date.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. Section 501.975, Florida Statutes, is amended to
   26  read:
   27         501.975 Definitions.—As used in this part s. 501.976, the
   28  term following terms shall have the following meanings:
   29         (1) “Customer” includes a customer’s designated agent.
   30         (2) “Dealer” means a motor vehicle dealer as defined in s.
   31  320.27, but does not include a motor vehicle auction as defined
   32  in s. 320.27(1)(c)4.
   33         (3) “Replacement item” means a tire, bumper, bumper fascia,
   34  glass, in-dashboard equipment, seat or upholstery cover or trim,
   35  exterior illumination unit, grill, sunroof, external mirror, and
   36  external body cladding. The replacement of up to three of these
   37  items does not constitute repair of damage if each item is
   38  replaced because of a product defect or damaged due to vandalism
   39  while the new motor vehicle is under the control of the dealer
   40  and the items are replaced with original manufacturer equipment,
   41  unless an item is replaced due to a crash, collision, or
   42  accident.
   43         (4) “Threshold amount” means 3 percent of the
   44  manufacturer’s suggested retail price of a motor vehicle or
   45  $650, whichever is less.
   46         (5) “Vehicle” means any automobile, truck, bus,
   47  recreational vehicle, or motorcycle required to be licensed
   48  under chapter 320 for operation over the roads of Florida, but
   49  does not include trailers, mobile homes, travel trailers, or
   50  trailer coaches without independent motive power.
   51         Section 2. Section 501.98, Florida Statutes, is created to
   52  read:
   53         501.98 Demand letter.—
   54         (1) As a condition precedent to initiating any civil
   55  litigation arising under this chapter against a motor vehicle
   56  dealer, which may also include its employees, agents,
   57  principals, sureties, and insurers, a claimant must give the
   58  dealer written notice of the claimant’s intent to initiate such
   59  litigation at least 30 days before initiating the litigation.
   60         (2) The demand letter, which must be completed in good
   61  faith, must:
   62         (a) State the name, address, and telephone number of the
   63  claimant.
   64         (b) State the name, address, and telephone number of the
   65  dealer.
   66         (c) Describe the underlying facts of the claim, including a
   67  comprehensive and detailed statement describing each item for
   68  which actual damages are claimed.
   69         (d) To the extent available, be accompanied by all
   70  transaction or other documents upon which the claim is based.
   72  In any challenge to the claimant’s compliance with this
   73  subsection, the demand letter shall be deemed satisfactory if it
   74  contains sufficient information to adequately put the dealer on
   75  notice of the nature of the claim and the relief sought.
   76         (3) The demand letter must be delivered to the dealer by
   77  the United States Postal Service or by a nationally recognized
   78  carrier, return receipt requested. If the dealer is a corporate
   79  entity, the demand letter must be sent to any officer, director,
   80  or manager of the dealer as reported in the dealer’s most recent
   81  annual report to the Secretary of State.
   82         (4) Notwithstanding any provision of this chapter:
   83         (a) A claimant may not initiate civil litigation against a
   84  dealer or its employees, agents, principals, sureties, or
   85  insurers for a claim arising under this chapter related to, or
   86  in connection with, the transaction or event described in the
   87  demand letter if, within 30 business days after receipt of the
   88  demand letter, the dealer pays the claimant the amount sought in
   89  the demand letter, plus a surcharge equal to the lesser of $500
   90  or 10 percent of the amount contained in the demand letter.
   91         (b) A dealer and its employees, agents, principals,
   92  sureties, and insurers are not required to pay the attorney fees
   93  of the claimant in any action brought under this chapter if:
   94         1. The dealer, within 30 business days after receipt of the
   95  demand letter, notifies the claimant in writing, and a court
   96  agrees, that the amount sought in the demand letter is not
   97  supported by the facts of the transaction or event described in
   98  the demand letter or if the demand letter includes items not
   99  properly recoverable under this chapter; or
  100         2. The claimant fails to materially comply with this
  101  section; however, to the extent that there is a challenge to the
  102  sufficiency of the demand letter, the demand letter shall be
  103  deemed satisfactory if it contains sufficient information to
  104  adequately put the dealer on notice of the nature of the claim
  105  and the relief sought such that it could appropriately respond.
  106         (5) Payment or offer of payment of the damages claimed in
  107  the demand letter as set forth in this section:
  108         (a) Does not constitute an admission of any wrongdoing or
  109  liability by the dealer.
  110         (b) Is protected under s. 90.408 from introduction as
  111  evidence during any civil litigation.
  112         (c) Releases the dealer and its employees, agents,
  113  principals, sureties, and insurers from any claim, suit, action,
  114  or other action that could be brought arising out of, or in
  115  connection with, the specific transaction, event, or occurrence
  116  described in the demand letter.
  117         (6) The applicable time limitations for initiating an
  118  action under this chapter are tolled for 30 days after the date
  119  of delivery to the dealer pursuant to subsection (3), or such
  120  other period agreed to by the parties in writing.
  121         (7) This section does not apply to any action brought as a
  122  class action that is ultimately certified as a class action or
  123  any action brought by the enforcing authority.
  124         (8) This section applies only to civil litigation arising
  125  out of a transaction for which the dealer has provided the
  126  following notice to the consumer:
  128  “Section 501.98, Florida Statutes, requires that, at least 30
  129  days before bringing any claim against a motor vehicle dealer
  130  for an unfair or deceptive trade practice, a consumer must
  131  provide the dealer with written notice stating the name,
  132  address, and telephone number of the consumer; the name,
  133  address, and telephone number of the dealer; a description of
  134  the facts that serve as the basis for the claim; the amount of
  135  damages claimed; and copies of any documents in the possession
  136  of the consumer which relate to the claim. Such notice must be
  137  delivered by the United States Postal Service or any nationally
  138  recognized carrier, return receipt requested. Such notice must
  139  be provided to the dealer, or, if the dealer is a corporate
  140  entity, to an officer, director, or manager of the dealer as
  141  reported by the Division of Corporations at: (...insert current
  142  Internet website address of the Division of Corporations of the
  143  Department of State...).”
  144         Section 3. This act shall take effect July 1, 2013.