Florida Senate - 2013                              CS for SB 292
       By the Committee on Commerce and Tourism; and Senators Richter,
       Flores, Bean, and Brandes
       577-01690-13                                           2013292c1
    1                        A bill to be entitled                      
    2         An act relating to deceptive and unfair trade
    3         practices; amending s. 501.975, F.S.; making technical
    4         changes; 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 requirements and expiration of the demand letter;
   10         providing exceptions for liability for payment of
   11         attorney fees; providing for the tolling of applicable
   12         time limitations for initiating actions; providing an
   13         additional opportunity for claimants to comply with
   14         specified provisions; providing that attorney fees and
   15         other costs incurred by a claimant before compliance
   16         with certain provisions are not recoverable; providing
   17         for applicability; requiring that a specified notice
   18         be provided to consumers before provisions may apply;
   19         providing an effective date.
   21  Be It Enacted by the Legislature of the State of Florida:
   23         Section 1. Section 501.975, Florida Statutes, is amended to
   24  read:
   25         501.975 Definitions.—As used in this part s. 501.976, the
   26  term following terms shall have the following meanings:
   27         (1) “Customer” includes a customer’s designated agent.
   28         (2) “Dealer” means a motor vehicle dealer as defined in s.
   29  320.27, but does not include a motor vehicle auction as defined
   30  in s. 320.27(1)(c)4.
   31         (3) “Replacement item” means a tire, bumper, bumper fascia,
   32  glass, in-dashboard equipment, seat or upholstery cover or trim,
   33  exterior illumination unit, grill, sunroof, external mirror and
   34  external body cladding. The replacement of up to three of these
   35  items does not constitute repair of damage if each item is
   36  replaced because of a product defect or damaged due to vandalism
   37  while the new motor vehicle is under the control of the dealer
   38  and the items are replaced with original manufacturer equipment,
   39  unless an item is replaced due to a crash, collision, or
   40  accident.
   41         (4) “Threshold amount” means 3 percent of the
   42  manufacturer’s suggested retail price of a motor vehicle or
   43  $650, whichever is less.
   44         (5) “Vehicle” means any automobile, truck, bus,
   45  recreational vehicle, or motorcycle required to be licensed
   46  under chapter 320 for operation over the roads of Florida, but
   47  does not include trailers, mobile homes, travel trailers, or
   48  trailer coaches without independent motive power.
   49         Section 2. Section 501.98, Florida Statutes, is created to
   50  read:
   51         501.98 Demand letter.—
   52         (1) As a condition precedent to initiating any civil
   53  litigation, including arbitration, arising under this chapter
   54  against a motor vehicle dealer, which may also include its
   55  employees, agents, principals, sureties, and insurers, a
   56  claimant must give the dealer a written demand letter at least
   57  30 days before initiating the litigation.
   58         (2) The demand letter, which must be completed in good
   59  faith, must:
   60         (a)State the name, address, and telephone number of the
   61  claimant.
   62         (b)State the name and address of the dealer.
   63         (c)Describe the underlying facts of the claim, including a
   64  statement describing each item for which actual damages are
   65  claimed.
   66         (d)State the amount of damages claimed.
   67         (e)To the extent available to the claimant, be accompanied
   68  by all transaction or other documents upon which the claim is
   69  based.
   71  In any challenge to the claimant’s compliance with this
   72  subsection, the demand letter shall be deemed satisfactory if it
   73  contains sufficient information to reasonably put the dealer on
   74  notice of the nature of the claim and the relief sought.
   75         (3)The demand letter must be delivered by the United
   76  States Postal Service or by a nationally recognized carrier,
   77  return receipt requested, to the address where the subject
   78  vehicle was purchased or leased or where the subject transaction
   79  occurred, or any address at which the dealer regularly conducts
   80  business.
   81         (4)Notwithstanding any provision of this chapter:
   82         (a)A claimant may not initiate civil litigation, including
   83  arbitration, against a dealer or its employees, agents,
   84  principals, sureties, or insurers for a claim arising under this
   85  chapter related to, or in connection with, the transaction or
   86  event described in the demand letter if, within 30 days after
   87  receipt of the demand letter, the dealer pays the claimant the
   88  amount sought in the demand letter, plus a surcharge of $500, if
   89  the claimant is represented by an attorney.
   90         (b)A dealer and its employees, agents, principals,
   91  sureties, and insurers may not be required to pay the attorney
   92  fees of the claimant in any action brought under this chapter
   93  if:
   94         1.The dealer, within 30 days after receipt of the demand
   95  letter, notifies the claimant in writing, and a court or
   96  arbitrator agrees, that the amount sought in the demand letter
   97  is not reasonable in light of the facts of the transaction or
   98  event described in the demand letter or if the demand letter
   99  includes items and amounts not properly recoverable under this
  100  chapter; or
  101         2.The claimant fails to sufficiently comply with this
  102  section; however, to the extent that there is a challenge to the
  103  sufficiency of the demand letter, the demand letter shall be
  104  deemed satisfactory if it contains sufficient information to
  105  reasonably put the dealer on notice of the nature of the claim
  106  and the amount and relief sought such that the dealer could
  107  appropriately respond.
  108         (5)The demand letter required by this section expires 30
  109  days after receipt by the dealer, unless renewed by the
  110  claimant, and does not place a limitation on the damages that
  111  the claimant may claim in subsequently maintained civil
  112  litigation, including arbitration. Payment of the damages
  113  claimed in the demand letter and the required surcharge as set
  114  forth in this section within 30 days of receipt of the demand
  115  letter:
  116         (a) Does not constitute an admission of any wrongdoing or
  117  liability by the dealer.
  118         (b) Is protected under s. 90.408 from introduction as
  119  evidence during any civil litigation, including arbitration.
  120         (c) Releases the dealer and its employees, agents,
  121  principals, sureties, and insurers from any claim, suit, or
  122  other action that could be brought arising out of, or in
  123  connection with, the specific transaction, event, or occurrence
  124  described in the demand letter; but does not serve as a release
  125  as to items of damages that are not included in the demand
  126  letter and not recoverable under this chapter.
  127         (6)The applicable time limitations for initiating an
  128  action under this chapter are tolled for 30 days after the date
  129  of delivery of the demand letter to the dealer pursuant to
  130  subsection (3), or such other period agreed to in writing and
  131  signed by the parties after the demand letter is received by the
  132  dealer.
  133         (7) This section does not apply to any action brought as a
  134  class action that is ultimately certified as a class action or
  135  any action brought by the enforcing authority.
  136         (8)If a claimant initiates civil litigation, including
  137  arbitration, without first complying with the provisions of this
  138  section, the court or arbitrator shall stay the action upon
  139  timely motion until the claimant complies with this section.
  140  Attorney fees and court or arbitration costs incurred by the
  141  claimant before compliance with this section are not recoverable
  142  under this chapter.
  143         (9)This section applies only to civil litigation,
  144  including arbitration, arising out of a transaction for which
  145  the dealer has provided the following written notice to the
  146  consumer, which must be in a font size no smaller than that of
  147  the predominant text on the page in which the claim is
  148  disclosed, or if it is disclosed by itself, in a font size of at
  149  least 12 points:
  151         “Section 501.98, Florida Statutes, requires that, at
  152         least 30 days before bringing any claim against a
  153         motor vehicle dealer for an unfair or deceptive trade
  154         practice, a consumer must provide the dealer with a
  155         written demand letter stating the name, address, and
  156         telephone number of the consumer; the name and address
  157         of the dealer; a description of the facts that serve
  158         as the basis for the claim; the amount of damages
  159         claimed; and copies of any documents in the possession
  160         of the consumer which relate to the claim. Such notice
  161         must be delivered by the United States Postal Service
  162         or by a nationally recognized carrier, return receipt
  163         requested to the address where the subject vehicle was
  164         purchased or leased or where the subject transaction
  165         occurred, or any address at which the dealer regularly
  166         conducts business.”
  167         Section 3. This act shall take effect July 1, 2013.