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1 1 Section 1. NEW SECTION. 216E.1 DEFINITIONS.
1 2 As used in this chapter, unless the context otherwise
1 3 provides:
1 4 1. "Assistive device" means any item, piece of equipment,
1 5 or product system which is purchased, or whose transfer is
1 6 accepted in this state, and which is used to increase,
1 7 maintain, or improve the functional capabilities of
1 8 individuals with disabilities concerning a major life activity
1 9 as defined in section 225C.46.
1 10 2. "Assistive device dealer" means a person who is in the
1 11 business of selling assistive devices.
1 12 3. "Assistive device lessor" means a person who leases
1 13 assistive devices to consumers, or who holds the lessor's
1 14 rights, under a written lease.
1 15 4. "Collateral costs" means expenses incurred by a con-
1 16 sumer in connection with the repair of a nonconformity,
1 17 including the cost of shipping, sales tax, and of obtaining an
1 18 alternative assistive device.
1 19 5. "Consumer" means any one of the following:
1 20 a. The purchaser of an assistive device, if the assistive
1 21 device was purchased from an assistive device dealer or manu-
1 22 facturer for purposes other than resale.
1 23 b. A person to whom the assistive device is transferred
1 24 for purposes other than resale, if the transfer occurs before
1 25 the expiration of an express warranty applicable to the
1 26 assistive device.
1 27 c. A person who may enforce the warranty.
1 28 d. A person who leases an assistive device from an
1 29 assistive device lessor under a written lease.
1 30 6. "Demonstrator" means an assistive device used primarily
1 31 for the purpose of demonstration to the public.
1 32 7. "Early termination cost" means any expense or obliga-
1 33 tion that an assistive device lessor incurs as a result of
1 34 both the termination of a written lease before the termination
1 35 date set forth in the lease and the return of an assistive
2 1 device to the manufacturer. "Early termination cost" includes
2 2 a penalty for prepayment under a finance arrangement.
2 3 8. "Early termination savings" means any expense or
2 4 obligation that an assistive device lessor avoids as a result
2 5 of both the termination of a written lease before the termina-
2 6 tion date set forth in the lease and the return of an
2 7 assistive device to a manufacturer which shall include an
2 8 interest charge that the assistive device lessor would have
2 9 paid to finance the assistive device or, if the assistive
2 10 device lessor does not finance the assistive device, the
2 11 difference between the total period of the lease term
2 12 remaining after the early termination and the present value of
2 13 that amount at the date of the early termination.
2 14 9. "Manufacturer" means a person who manufactures or
2 15 assembles assistive devices and agents of that person, in-
2 16 cluding an importer, a distributor, a factory branch, dis-
2 17 tributor branch, and any warrantors of the manufacturer's
2 18 assistive device, but does not include an assistive device
2 19 dealer or assistive device lessor.
2 20 10. "Nonconformity" means any defect, malfunction, or
2 21 condition which substantially impairs the use, value, or
2 22 safety of an assistive device or any of its component parts,
2 23 but does not include a condition, defect, or malfunction that
2 24 is the result of abuse, neglect, or unauthorized modification
2 25 or alteration of the assistive device by the consumer.
2 26 11. "Reasonable attempt to repair" means any of the
2 27 following occurring within the term of an express warranty
2 28 applicable to a new assistive device or within one year after
2 29 first delivery of the assistive device to a consumer,
2 30 whichever is sooner:
2 31 a. The manufacturer, assistive device lessor, or any of
2 32 the manufacturer's authorized assistive device dealers accept
2 33 return of the new assistive device for repair at least two
2 34 times.
2 35 b. The assistive device is out of service for an aggregate
3 1 of at least thirty cumulative days because of warranty non-
3 2 conformities.
3 3 Sec. 2. NEW SECTION. 216E.2 EXPRESS WARRANTIES.
3 4 1. A manufacturer or assistive device lessor who sells or
3 5 leases an assistive device to a consumer, either directly or
3 6 through an assistive device dealer, shall furnish the consumer
3 7 with an express warranty for the assistive device. The
3 8 duration of the express warranty shall be not less than one
3 9 year after first delivery of the assistive device to the
3 10 consumer. If a manufacturer fails to furnish an express
3 11 warranty as required by this section, the assistive device
3 12 shall be covered by an express warranty as if the manufacturer
3 13 had furnished an express warranty to the consumer as required
3 14 by this section.
3 15 2. An express warranty does not take effect until the
3 16 consumer takes possession of the new assistive device.
3 17 Sec. 3. NEW SECTION. 216E.3 ASSISTIVE DEVICE REPLACEMENT
3 18 OR REFUND.
3 19 1. If an assistive device does not conform to an
3 20 applicable express warranty and the consumer reports the
3 21 nonconformity to the manufacturer, the assistive device
3 22 lessor, or any of the manufacturer's authorized assistive
3 23 device dealers, and makes the assistive device available for
3 24 repair before one year after first delivery of the device to
3 25 the consumer, a reasonable attempt to repair the nonconformity
3 26 shall be made.
3 27 2. If, after a reasonable attempt to repair, the
3 28 nonconformity is not repaired, the manufacturer shall carry
3 29 out the requirements of either paragraph "a" or "b" upon the
3 30 request of a consumer.
3 31 a. The manufacturer shall provide for a refund by doing
3 32 any one of the following:
3 33 (1) Accept return of the assistive device and refund to
3 34 the consumer and to any holder of perfected security interest
3 35 in the consumer's assistive device, as the holder's interest
4 1 may appear, the full purchase price plus any finance charge or
4 2 sales tax paid by the consumer at the point of sale and
4 3 collateral costs, including but not limited to shipping costs,
4 4 less a reasonable allowance for use.
4 5 (2) Accept return of the assistive device, refund to the
4 6 assistive device lessor and to any holder of a perfected
4 7 security interest in the assistive device, as the holder's
4 8 interest may appear, the current value of the written lease
4 9 and refund to the consumer the amount that the consumer paid
4 10 under the written lease plus any collateral costs, less a
4 11 reasonable allowance for use. The manufacturer shall have a
4 12 cause of action against the dealer or lessor for reimbursement
4 13 of any amount that the manufacturer pays to a consumer which
4 14 exceeds the net price received by the manufacturer for the
4 15 assistive device.
4 16 b. The manufacturer shall provide a comparable new
4 17 assistive device or offer a refund to the consumer if the
4 18 consumer does any one of the following:
4 19 (1) Offers to transfer possession of the assistive device
4 20 to the manufacturer. No later than thirty days after that
4 21 offer, the manufacturer shall provide the consumer with the
4 22 comparable new assistive device or a refund. When the
4 23 manufacturer provides the new assistive device or refund, the
4 24 consumer shall return the assistive device having the
4 25 nonconformity to the manufacturer, along with any endorsements
4 26 necessary to transfer legal possession to the manufacturer.
4 27 (2) Offers to return the assistive device having the
4 28 nonconformity to the manufacturer. No later than thirty days
4 29 after the offer, the manufacturer shall provide the refund to
4 30 the consumer. When the manufacturer provides the refund, the
4 31 consumer shall return to the manufacturer the assistive device
4 32 having the nonconformity.
4 33 (3) Offers to transfer possession of the assistive device
4 34 having the nonconformity to the manufacturer. No later than
4 35 thirty days after the offer, the manufacturer shall provide
5 1 the refund to the assistive device lessor. When the
5 2 manufacturer provides the refund, the assistive device lessor
5 3 shall provide to the manufacturer any endorsements necessary
5 4 to transfer legal possession to the manufacturer.
5 5 3. Under the provisions of this section, the current value
5 6 of the written lease equals the total amount for which that
5 7 lease obligates the consumer during the period of the lease
5 8 remaining after its early termination, plus the assistive
5 9 device dealer's early termination costs and the value of the
5 10 assistive device at the lease expiration date if the lease
5 11 sets forth that value, less the assistive device lessor's
5 12 early termination savings.
5 13 4. Under the provisions of this section, a reasonable
5 14 allowance for use shall not exceed the amount obtained by
5 15 multiplying the total amount for which the written lease
5 16 obligates the consumer by a fraction, the denominator of which
5 17 is one thousand eight hundred twenty-five and the numerator of
5 18 which is the number of days that the consumer used the
5 19 assistive device before first reporting the nonconformity to
5 20 the manufacturer, assistive device lessor, or assistive device
5 21 dealer.
5 22 5. A person shall not enforce the lease against the
5 23 consumer after the consumer receives a refund.
5 24 Sec. 4. NEW SECTION. 216E.4 MANUFACTURER'S DUTY TO
5 25 PROVIDE REIMBURSEMENT FOR TEMPORARY REPLACEMENT OF ASSISTIVE
5 26 DEVICES &endash; PENALTIES.
5 27 1. Whenever an assistive device covered by a
5 28 manufacturer's express warranty is tendered by a consumer to
5 29 the dealer from whom the assistive device was purchased or
5 30 exchanged for the repair of any defect, malfunction, or
5 31 nonconformity to which the warranty is applicable, the
5 32 manufacturer shall provide the consumer for the duration of
5 33 the repair period, a rental assistive device reimbursement of
5 34 up to twenty dollars per day if any of the following applies:
5 35 a. The repair period exceeds ten working days, including
6 1 the day on which the device is tendered to the manufacturer or
6 2 a dealer designated by the manufacturer for repairs. If the
6 3 dealer does not tender the assistive device to the
6 4 manufacturer in a timely enough manner for the manufacturer to
6 5 make the repairs within ten days, the manufacturer shall have
6 6 a cause of action against the dealer for reimbursement of any
6 7 penalties that the manufacturer must pay.
6 8 b. The nonconformity is the same for which the assistive
6 9 device has been tendered to the dealer for repair on at least
6 10 two previous occasions.
6 11 2. The provisions of this section regarding a
6 12 manufacturer's duty shall apply for the period of the
6 13 manufacturer's express warranty or for two years from delivery
6 14 of the assistive device to the customer, whichever period of
6 15 time ends sooner.
6 16 Sec. 5. NEW SECTION. 216E.5 NONCONFORMITY DISCLOSURE
6 17 REQUIREMENT.
6 18 An assistive device returned by a consumer or assistive
6 19 device lessor in this state or any other state for
6 20 nonconformity shall not be sold or leased again in this state
6 21 unless full disclosure of the reason for return is made to any
6 22 prospective buyer or lessee.
6 23 Sec. 6. NEW SECTION. 216E.6 REMEDIES.
6 24 1. This chapter shall not limit rights or remedies
6 25 available to a consumer under any other law.
6 26 2. Any waiver of rights by a consumer under the provisions
6 27 of this chapter shall be void.
6 28 3. In addition to pursuing any other remedy, a consumer
6 29 may bring an action to recover any damages caused by a
6 30 violation of this chapter. The court shall award a consumer
6 31 who prevails in such an action, no more than three times the
6 32 amount of any pecuniary loss, together with costs and
6 33 reasonable attorney fees, and any equitable relief that the
6 34 court determines is appropriate.
6 35 EXPLANATION
7 1 This bill creates a new chapter regarding warranties for
7 2 assistive devices. The bill defines, for the purposes of this
7 3 chapter, "assistive devices", "consumer", "manufacturer", and
7 4 other terms used in the chapter concerning repair and cost.
7 5 The bill provides for a warranty on assistive devices of at
7 6 least one year. The bill further provides for the repair of a
7 7 nonconforming assistive device and provides a consumer with
7 8 the ability to obtain a refund or a replacement device if the
7 9 nonconformity is not repaired. The bill also provides that a
7 10 manufacturer must provide at least partial reimbursement for
7 11 inability to use an assistive device to a consumer if the
7 12 device is being repaired if certain conditions are met.
7 13 The bill also provides that a resale of a device returned
7 14 for a nonconformity must disclose the reason for the return to
7 15 a new consumer of the device.
7 16 The bill does not limit a consumer's right to pursue other
7 17 remedies concerning an assistive device and provides for a
7 18 civil action to obtain damages for a violation of this new
7 19 chapter.
7 20 LSB 3197SS 76
7 21 ec/jw/5
Text: SF02074 Text: SF02076 Text: SF02000 - SF02099 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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