§ 357-D:1 Intent. -
The legislature finds and declares that manufacturers, distributors and
importers of new motor vehicles should be obligated to provide speedy and less
costly resolution of automobile warranty problems. Manufacturers should be
required to provide in as expeditious a manner as possible a refund of the
consumer's purchase price, payments to a lessor and lessee, or a replacement
vehicle that is acceptable to the consumer whenever the manufacturer is unable
to make the vehicle conform with its applicable warranty. New motor vehicle
dealers and used motor vehicle dealers cannot be sued under this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:2 Definitions. -
In this chapter:
I. "Board" means the New Hampshire new motor vehicle
arbitration board.
II. "Business day" means any day during which the service
departments of authorized dealers of the manufacturer of the motor vehicle are
normally open for business.
III. "Consumer" means the purchaser, other than for purposes
of resale of a new motor vehicle; the lessee of a new motor vehicle, other than
for the purpose of sublease; any person to whom such motor vehicle is
transferred during the duration of an express warranty applicable to the motor
vehicle; or any other person entitled by the terms of the warranty to enforce
the obligations of the warranty. "Consumer" shall not include any governmental
entity.
IV. "Distributor" means any person who sells or distributes
new or used motor vehicles to motor vehicle dealers or who maintains
distributor representatives within this state.
V. "Early termination costs" means expenses and obligations
incurred by a motor vehicle lessee as a result of an early termination of a
written lease agreement and surrender of a motor vehicle to a manufacturer,
including penalties for prepayment of finance arrangements.
VI. "Factory branch" means any branch office maintained by a
manufacturer for the purpose of selling, leasing, or offering for sale or
lease, vehicles to a distributor or new motor vehicle dealer or for directing
or supervising, in whole or in part, factory distributor representatives.
VII. "Lease" or "leased" means a written agreement with a
lessee which shall be for the use of a motor vehicle for consideration for a
term of 2 or more years.
VIII. "Lessee" means any consumer who leases a motor vehicle
pursuant to a written lease agreement for a term of 2 or more years.
IX. "Manufacturer" means any person, resident or nonresident,
who manufactures or assembles new motor vehicles, or imports for distribution
through distributors of motor vehicles or any partnership, firm, association,
joint venture, corporation or trust, resident or nonresident, which is
controlled by a manufacturer. The term "manufacturer" includes distributors and
factory branches.
X. "Motor vehicle" means:
(a) A motor vehicle, as defined in RSA 259:60, of the private
passenger or station wagon type with a gross weight not exceeding 9,000 pounds
that is purchased or leased by a consumer; or
(b) Any other 4-wheel motor vehicle with a gross weight not
exceeding 9,000 pounds, except tractors, off highway recreational vehicles, and
mopeds; or
(c) Motorcycles.
XI. "Motor vehicle dealer" means any person engaged in the
business of selling, offering to sell, leasing, soliciting or advertising the
sale of new or used motor vehicles or possessing motor vehicles for the purpose
of resale either on his own account or on behalf of another, either as his
primary business or incidental thereto. However, "motor vehicle dealer" shall
not include:
(a) Receivers, trustees, administrators, executors,
guardians, or other persons appointed by or acting under judgment, decree or
order of any court; or
(b) Public officers while performing their duties as such
officers.
XII. "Motor vehicle lessor" means a person who holds title to
a motor vehicle leased to a lessee under written lease agreement for a term of
2 or more years, or who holds the lessor's rights under such an agreement.
XIII. "New motor vehicle" means a passenger motor vehicle
which is still under the manufacturer's express warranty.
XIV. "Nonconformity" means a defect or condition that
substantially impairs the use, value or safety of a motor vehicle, but does not
include a defect or condition that results from an accident, abuse, neglect,
modification, or alteration of the motor vehicle by persons other than the
manufacturer or its authorized service agent.
XV. "Warranty" includes express warranties as defined in the
Uniform Commercial Code, RSA 382-A, plus any written warranty of the
manufacturer.
Source. 1991, 222:1. 1994, 220:1, 2, eff. Jan. 1, 1995.
§ 357-D:3 Enforcement of Warranties.
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I. Every new motor vehicle sold in this state shall conform to all applicable
warranties.
II. It shall be the manufacturer's obligation under this
chapter to insure that all new motor vehicles sold or leased in this state
conform with the manufacturer's express warranties. The manufacturer may
delegate responsibility to its agents or authorized dealers provided, however,
in the event the manufacturer delegates its responsibility under this chapter
to its agents or authorized dealers, it shall compensate the dealer for all
work performed by the dealer in satisfaction of the manufacturer's
responsibility under this chapter.
III. If a new motor vehicle does not conform to all
applicable express warranties and the consumer reports the nonconformity to the
manufacturer, its agent or authorized dealer during the term of the warranty,
the manufacturer shall cause whatever repairs are necessary to conform the
vehicle to the warranties, notwithstanding the fact that the repairs are made
after the expiration of a warranty term.
IV. A manufacturer, its agent or authorized dealer shall not
refuse to provide a consumer with a written repair order and shall provide to
the consumer, each time the consumer's vehicle is brought in for examination or
repair of a defect, a written summary of the complaint and a fully itemized
statement indicating all work performed on the vehicle including, but not
limited to, examination of the vehicle, parts, and labor.
V. If, after a reasonable number of attempts, the
manufacturer, its agent or authorized dealer or its delegate is unable to
conform the motor vehicle to any express warranty by repairing or correcting
any defect or condition covered by the warranty which substantially impairs the
use, market value, or safety of the motor vehicle to the consumer, the
manufacturer shall, at the option of the consumer within 30 days of the
effective date of the board's order, replace the motor vehicle with a new motor
vehicle from the same manufacturer, if available, of comparable worth to the
same make and model with all options and accessories with appropriate
adjustments being allowed for any model year differences or shall accept return
of the vehicle from the consumer and refund to the consumer the full purchase
price or to the lessee, in the case of leased vehicles, as provided in
paragraph IX. In those instances in which a refund is tendered, the
manufacturer shall refund to the consumer the full purchase price as indicated
in the purchase contract and all credits and allowances for any trade-in or
down payment, license fees, finance charges, credit charges, registration fees,
and any similar charges and incidental and consequential damages or, in the
case of leased vehicles, as provided in paragraph IX. Refunds shall be made to
the consumer and lienholder, if any, as their interests may appear, or to the
motor vehicle lessor and lessee as provided in paragraph IX. A reasonable
allowance for use shall be that amount directly attributable to use by the
consumer prior to the first repair attempt and shall be calculated by
multiplying the full purchase price of the vehicle by a fraction having as its
denominator 100,000, or for a motorcycle with an engine size of 250 cubic
centimeters or smaller 20,000, or for a motorcycle with an engine size greater
than 250 cubic centimeters 40,000, and having as its numerator the number of
miles that the vehicle traveled prior to the first attempt at repairing the
vehicle.
VI. It shall be an affirmative defense to any claim under
this chapter that an alleged nonconformity does not substantially impair the
use, market value, or safety or that the nonconformity is the result of abuse,
neglect, or unauthorized modifications or alterations of a motor vehicle by a
consumer.
VII. It shall be presumed that a reasonable number of
attempts have been undertaken to conform a motor vehicle to the applicable
warranties if:
(a) The same nonconformity as identified in any written
examination or repair order has been subject to repair at least 3 times by the
manufacturer, its agent, or authorized dealer within the express warranty term
and the same nonconformity continues to exist; or
(b) The vehicle is out of service by reason of repair of one
or more nonconformities, defects, or conditions for a cumulative total of 30 or
more business days during the term of the express warranty. The term of any
warranty and the 30-day period shall be extended by any period of time during
which repair services were not available to the consumer because of war,
invasion, strike, fire, flood, or other natural disaster. If an extension of
time is necessitated due to these conditions, the manufacturer shall provide
for the free use of a vehicle to the consumer whose vehicle is out of service.
A vehicle shall not be deemed out of service if it is available to the consumer
for a major part of the day.
VIII. In order for an attempt at repair to qualify for the
presumptions of this section, the attempt at repair shall be evidenced by a
written examination or repair order issued by the manufacturer, its agent, or
its authorized dealer. The presumptions of this section shall only apply to 3
attempts at repair evidenced by written examination or repair orders undertaken
by the same agent or authorized dealer, unless the consumer shows good cause
for taking the vehicle to a different agent or authorized dealer.
IX. In cases in which a refund is tendered by a manufacturer
for a leased motor vehicle under paragraph V, the refund and rights of the
motor vehicle lessor, lessee, and manufacturer shall be in accordance with the
following:
(a) The manufacturer shall provide to the lessee the
aggregate deposit and rental payments previously paid to the motor vehicle
lessor by the lessee, and incidental and consequential damages, if applicable,
minus a reasonable allowance for use. The aggregate deposit shall include, but
not be limited to, all cash payments and trade-in allowances tendered by the
lessee to the motor vehicle lessor under the lease agreement. The reasonable
allowance for use shall be calculated by multiplying the aggregate deposit and
rental payments made by the lessee on the motor vehicle by a fraction having as
its denominator 100,000 or for a motorcycle 20,000, and having as its numerator
the number of miles that the vehicle traveled prior to the first attempt to
repair the vehicle.
(b) The manufacturer shall provide to the motor vehicle
lessor the aggregate of the following:
(1) The lessor's actual purchase cost, less payments made by
the lessee;
(2) The freight cost, if applicable;
(3) The cost for dealer or manufacturer-installed
accessories, if applicable;
(4) Any fee paid to another to obtain the lease;
(5) An amount equal to 5 percent of the lessor's actual
purchase cost as prescribed in subparagraph IX(b)(1). The amount in this
subparagraph shall be instead of any early termination costs.
(c) The lessee's lease agreement with the motor vehicle
lessor and all contractual obligations shall be terminated upon a decision of
the board in favor of the lessee. The lessee shall not be liable for any
further costs or charges to the manufacturer or motor vehicle lessor under the
lease agreement.
(d) The motor vehicle lessor shall release the motor vehicle
title to the manufacturer upon the payment by the manufacturer under the
provisions of this section.
(e) The board shall give notice to the motor vehicle lessor
of the lessee's filing of a request for arbitration under this chapter and
shall notify the motor vehicle lessor of the date, time and place scheduled for
a hearing before the board. The motor vehicle lessor shall provide testimony
and evidence necessary to the arbitration proceedings. Any decision of the
board shall be binding upon the motor vehicle lessor.
Source. 1991, 222:1. 1992, 282:15, eff. Jan. 1, 1993.
§ 357-D:4 Procedure to Obtain Refund or
Replacement. -
I. After the third attempt at repair or correction of the nonconformity, defect
or condition, or after the vehicle is out of service by reason of repair of one
or more nonconformities, defects or conditions for a cumulative total of 30 or
more business days as provided in this chapter, the consumer shall notify the
manufacturer along with a clear and conspicuous disclosure notice of the rights
of the consumer under this chapter at the time the new motor vehicle is
delivered, of the nonconformity, defect or condition and the consumer's
election to proceed under this chapter. The forms shall be made available by
the manufacturer to the New Hampshire new motor vehicle arbitration board, and
any other public or nonprofit agencies that shall request them. Forms and
notices shall be in a form prescribed by rule of the department of justice and
shall not include window stickers. The consumer shall, in the notice, elect
whether to use the dispute settlement mechanism or the arbitration provisions
established by the manufacturer or to proceed under the New Hampshire new motor
vehicle arbitration board as established under this chapter. The consumer's
election of whether to proceed before the board or the manufacturer's dispute
settlement mechanism shall preclude his recourse to the method not selected.
II. A consumer shall not pursue a remedy under this chapter
if he has discontinued financing or lease payments, if the payments have been
discontinued due to the manufacturer's breach of obligation under this chapter
or due to a breach of the manufacturer's warranties.
III. A consumer who elects to proceed before the board shall
pay a filing fee of $ 50 and the manufacturer shall pay a filing fee of $ 250.
Such fees shall be retained by the department of safety and used to defray
costs associated with the work of the board, including per diem costs of board
members and any other administrative expenses.
IV. Arbitration of the consumer's complaint, either through
the manufacturer's dispute settlement mechanism or the board, shall be held
within 40 days of receipt by the manufacturer or the board and the manufacturer
of the consumer's notice electing the remedy of arbitration unless the consumer
or the manufacturer has good cause for an extension of time, not to exceed an
additional 30-day period. If the extension of time is requested by the
manufacturer, the manufacturer shall provide free use of a vehicle to the
consumer if the consumer's vehicle is out of service. In the event the consumer
elects to proceed in accordance with the manufacturer's dispute settlement
mechanism and the arbitration of the dispute is not held within 40 days of the
manufacturer's receipt of the consumer's notice and the manufacturer is not
able to establish good cause for the delay, the consumer shall be entitled to
receive the relief requested under this chapter.
V. Within the 40-day period set forth in paragraph IV, the
manufacturer shall have one final opportunity to correct and repair the defect
which the consumer claims entitles him to a refund or replacement vehicle. If
the consumer is satisfied with the corrective work done by the manufacturer or
his delegate, the arbitration proceedings shall be terminated without prejudice
to the consumer's right to request that arbitration be recommended as provided
in RSA 357-D:11, I(b) if the repair proves unsatisfactory.
VI. The manufacturer shall refund the reasonable allowance
provided for in RSA 357-D:3, V or IX, or make the replacement required by the
board within 30 days of a decision of the board or within 15 days of final
adjudication.
Source. 1991, 222:1. 1994, 220:3, eff. Jan. 1, 1995.
§ 357-D:5 New Motor Vehicle Arbitration
Board Established; Administrative Attachment; Rulemaking; Decisions. -
I. There is created a New Hampshire new motor vehicle arbitration board
consisting of 5 members and 3 alternate members to be appointed by the governor
and council. Terms of members shall be for 3 years. Board members may be
appointed for no more than 2 terms. One member and one alternate of the board
shall be new car dealers in New Hampshire, one member and one alternate shall
be persons knowledgeable in automobile mechanics, and 3 members and one
alternate shall be persons who represent consumers and have no direct
involvement in the design, manufacture, distributions, sales or service of
motor vehicles or their parts. Three members of the board shall constitute a
quorum. Members shall be paid $50 per diem plus mileage.
II. The board shall be administratively attached to the
department of safety under RSA 21-G:10.
III. The board shall adopt rules, pursuant to RSA 541-A, to
implement the provisions of this chapter.
IV. The board shall hold a hearing within 40 days of receipt
of a complaint, unless an extension of time has been granted by the board under
RSA 357-D:4, IV, and shall render a decision within 30 days of the conclusion
of a hearing. The board shall have the authority to issue only damages as are
provided by this chapter.
Source. 1991, 222:1. 1994, 220:4, 5, eff. Jan. 1, 1995.
§ 357-D:6 Appeal From Board's Decision.
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I. The decision of the board shall be final and shall not be modified or
vacated unless, on appeal to the superior court, a party to the arbitration
proceeding proves, by clear and convincing evidence, that:
(a) The award was procured by corruption, fraud or other
undue means.
(b) There was evident partiality by the board or corruption
or misconduct by the board prejudicing the rights of any party.
(c) The board exceeded its powers.
(d) The board refused to postpone a hearing after being shown
sufficient cause to do so, refused to hear evidence material to the
controversy, or otherwise conducted the hearing contrary to the rules adopted
by the board so as to prejudice substantially the rights of a party.
II. A party to the arbitration proceeding shall not pursue an
appeal until a final decision has been rendered by the board. Any appeal shall
be filed with the superior court within 30 days of the date of the written
board decision.
Source. 1991, 222:1. 1994, 220:6, eff. Jan. 1, 1995.
§ 357-D:7 Unfair and Deceptive Acts and
Practices. -
Failure of the manufacturer or distributor to comply with a decision of the
board shall constitute an unfair or deceptive act or practice under RSA 358-A:2.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:8 Dealer's Liability. -
Nothing in this chapter imposes any liability on a franchised motor vehicle
dealer or creates a cause of action by a consumer against a dealer, except for
written express warranties made by the dealer apart from the manufacturer's
warranties. A dealer shall not be made a party defendant in any action
involving or relating to this chapter, except as provided in this section. The
manufacturer shall not charge back or require reimbursement by the dealer for
any costs, including, but not limited to, any refunds or vehicle replacements,
incurred by the manufacturer arising from this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:9 Notification to Consumers;
Rulemaking by Department of Justice. -
Beginning with the model year following July 1, 1992, the manufacturer of every
motor vehicle sold in this state shall provide a clear and conspicuous written
notice of the consumer's rights under this chapter as provided under RSA
357-D:4 at the time of the delivery of every such new motor vehicle in this
state. The manufacturer shall provide the consumer with a self-addressed notice
in a form developed in accordance with rules adopted by the department of
justice under RSA 541-A and sufficient to notify the manufacturer of the
consumer's election to proceed under this chapter. The manufacturer shall not
delegate this responsibility to its authorized dealers. The manufacturer of
every new motor vehicle sold in this state shall also provide a clear and
conspicuous notice that informs consumers of their rights under this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:10 Costs and Attorney's Fees.
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In any action by a consumer against the manufacturer or distributor of a motor
vehicle based upon the alleged breach of an express warranty made in connection
with the sale or lease of such motor vehicle, the court, in its discretion, may
award to the plaintiff costs and reasonable attorney's fees. If the court
determines that the action was brought with no substantial justification, it
may award costs and reasonable attorney's fees to the defendant.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:11 Limitations on Actions. -
I. Any proceeding initiated under the provisions of this chapter shall be
commenced within one year following the later of:
(a) The expiration of the express warranty term; or
(b) The manufacturer's final repair attempt of the
nonconformity, as provided in RSA 357-D:4, V which gave rise to the consumer's
request that the vehicle be replaced or the money refunded.
II. Nothing in this chapter shall in any way limit the rights
or remedies which are otherwise available to a consumer under any other
provision of law.
Source. 1994, 220:7, eff. Jan. 1, 1995.
§ 357-D:12 Sale of Defective Motor
Vehicles. -
I. For purposes of this section "a serious safety defect" means a
life-threatening malfunction or nonconformity that impedes the consumer's
ability to control or operate the motor vehicle for ordinary use or reasonable
intended purposes or creates a risk of fire or explosion.
II. Any manufacturer or its agent or authorized dealer is
prohibited from reselling in New Hampshire any vehicle determined or
adjudicated by the board as having a serious safety defect.
Source. 1994, 395:1, eff. Jan. 1, 1995.
