Text: H08026 Text: H08028 Text: H08000 - H08099 Text: H Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Amend House File 530 as follows: 1 2 #1. By striking everything after the enacting 1 3 clause and inserting the following: 1 4 "Section 1. NEW SECTION. 216E.1 DEFINITIONS. 1 5 As used in this chapter, unless the context 1 6 otherwise provides: 1 7 1. "Assistive device" means any item, piece of 1 8 equipment, or product system which is purchased, or 1 9 whose transfer is accepted in this state, and which is 1 10 used to increase, maintain, or improve the functional 1 11 capabilities of individuals with disabilities 1 12 concerning a major life activity as defined in section 1 13 225C.46. "Assistive device" does not mean any medical 1 14 device, surgical device, or organ implanted or 1 15 transplanted into or attached directly to an 1 16 individual. "Assistive device" does not mean any 1 17 device for which a certificate of title is issued by 1 18 the state department of transportation but does mean 1 19 any item, piece of equipment, or product system 1 20 otherwise meeting the definition of "assistive device" 1 21 that is incorporated, attached, or included as a 1 22 modification in or to such a certificated device. 1 23 2. "Assistive device dealer" means a person who is 1 24 in the business of selling assistive devices. 1 25 3. "Assistive device lessor" means a person who 1 26 leases assistive devices to consumers, or who holds 1 27 the lessor's rights, under a written lease. 1 28 4. "Collateral costs" means expenses incurred by a 1 29 consumer in connection with the repair of a 1 30 nonconformity, including the cost of shipping, sales 1 31 tax, and of obtaining an alternative assistive device. 1 32 5. "Consumer" means any one of the following: 1 33 a. The purchaser of an assistive device, if the 1 34 assistive device was purchased from an assistive 1 35 device dealer or manufacturer for purposes other than 1 36 resale. 1 37 b. A person to whom the assistive device is 1 38 transferred for purposes other than resale, if the 1 39 transfer occurs before the expiration of an express 1 40 warranty applicable to the assistive device. 1 41 c. A person who may enforce the warranty. 1 42 d. A person who leases an assistive device from an 1 43 assistive device lessor under a written lease. 1 44 6. "Demonstrator" means an assistive device used 1 45 primarily for the purpose of demonstration to the 1 46 public. 1 47 7. "Early termination costs" means any expense or 1 48 obligation that an assistive device lessor incurs as a 1 49 result of both the termination of a written lease 1 50 before the termination date set forth in the lease and 2 1 the return of an assistive device to the manufacturer. 2 2 "Early termination cost" includes a penalty for 2 3 prepayment under a finance arrangement. 2 4 8. "Early termination savings" means any expense 2 5 or obligation that an assistive device lessor avoids 2 6 as a result of both the termination of a written lease 2 7 before the termination date set forth in the lease and 2 8 the return of an assistive device to a manufacturer 2 9 which shall include an interest charge that the 2 10 assistive device lessor would have paid to finance the 2 11 assistive device or, if the assistive device lessor 2 12 does not finance the assistive device, the difference 2 13 between the total payments remaining for the period of 2 14 the lease term remaining after the early termination 2 15 and the present value of those remaining payments at 2 16 the date of the early termination. 2 17 9. "Loaner" means an assistive device, provided 2 18 free of charge to the consumer, for use by the 2 19 consumer, that need not be new or be identical to, or 2 20 have functional capabilities equal to or greater than, 2 21 those of the original assistive device, but that meets 2 22 all of the following conditions: 2 23 a. The loaner is in good working order. 2 24 b. The loaner performs, at a minimum, the most 2 25 essential functions of the original assistive device, 2 26 in light of the disabilities of the consumer. 2 27 c. Any differences between the loaner and the 2 28 original assistive device do not create a threat to 2 29 the consumer's health or safety. 2 30 10. "Manufacturer" means a person who manufactures 2 31 or assembles assistive devices and agents of that 2 32 person, including an importer, a distributor, a 2 33 factory branch, distributor branch, and any warrantors 2 34 of the assistive device, but does not include an 2 35 assistive device dealer or assistive device lessor. 2 36 11. "Nonconformity" means any defect, malfunction, 2 37 or condition which substantially impairs the use, 2 38 value, or safety of an assistive device or any of its 2 39 component parts, but does not include a condition, 2 40 defect, or malfunction that is the result of abuse, 2 41 neglect, or unauthorized modification or alteration of 2 42 the assistive device by the consumer. 2 43 12. "Reasonable attempt to repair" means any of 2 44 the following occurring within the terms of an express 2 45 warranty applicable to a new assistive device or 2 46 within one year after first delivery of the assistive 2 47 device to a consumer, whichever is sooner: 2 48 a. The manufacturer, assistive device lessor, or 2 49 any of the manufacturer's authorized assistive device 2 50 dealers accept return of the new assistive device for 3 1 repair at least two times. 3 2 b. The manufacturer, assistive device lessor, or 3 3 any of the manufacturer's authorized assistive device 3 4 dealers place the assistive device out of service for 3 5 an aggregate of at least thirty cumulative days 3 6 because of warranty nonconformities. 3 7 Sec. 2. NEW SECTION. 216E.2 EXPRESS WARRANTIES. 3 8 1. A manufacturer or assistive device lessor who 3 9 sells or leases an assistive device to a consumer, 3 10 either directly or through an assistive device dealer, 3 11 shall furnish the consumer with an express warranty 3 12 for the assistive device, warranting the assistive 3 13 device to be free of any nonconformity. The duration 3 14 of the express warranty shall be not less than one 3 15 year after first delivery of the assistive device to 3 16 the consumer. If a manufacturer fails to furnish an 3 17 express warranty as required by this section, the 3 18 assistive device shall be covered by an express 3 19 warranty as if the manufacturer had furnished an 3 20 express warranty to the consumer as required by this 3 21 section. 3 22 2. An express warranty does not take effect until 3 23 the consumer takes possession of the new assistive 3 24 device. 3 25 Sec. 3. NEW SECTION. 216E.3 ASSISTIVE DEVICE 3 26 REPLACEMENT OR REFUND. 3 27 1. If an assistive device does not conform to an 3 28 applicable express warranty and the consumer reports 3 29 the nonconformity to the manufacturer, the assistive 3 30 device lessor, or any of the manufacturer's authorized 3 31 assistive device dealers, and makes the assistive 3 32 device available for repair before one year after 3 33 first delivery of the device to the consumer or within 3 34 the period of the express warranty if the warranty is 3 35 longer than one year, a reasonable attempt to repair 3 36 the nonconformity shall be made. 3 37 2. If, after a reasonable attempt to repair, the 3 38 nonconformity is not repaired, the manufacturer shall 3 39 carry out the requirements of either paragraph "a" or 3 40 "b" upon the request of a consumer. 3 41 a. The manufacturer shall provide for a refund by 3 42 doing one of the following: 3 43 (1) If the assistive device was purchased by the 3 44 consumer, accept return of the assistive device and 3 45 refund to the consumer and to any holder of perfected 3 46 security interest in the consumer's assistive device, 3 47 as the holder's interest may appear, the full purchase 3 48 price plus any finance charge paid by the consumer at 3 49 the point of sale and collateral costs, less a 3 50 reasonable allowance for use. 4 1 (2) If the assistive device was leased by the 4 2 consumer, accept return of the assistive device, 4 3 refund to the assistive device lessor and to any 4 4 holder of a perfected security interest in the 4 5 assistive device, as the holder's interest may appear, 4 6 the current value of the written lease and refund to 4 7 the consumer the amount that the consumer paid under 4 8 the written lease plus any collateral costs, less a 4 9 reasonable allowance for use. The manufacturer shall 4 10 have a cause of action against the dealer or lessor 4 11 for reimbursement of any amount that the manufacturer 4 12 pays to a consumer which exceeds the net price 4 13 received by the manufacturer for the assistive device. 4 14 b. The manufacturer shall provide a comparable new 4 15 assistive device or offer a refund to the consumer if 4 16 the consumer does any one of the following: 4 17 (1) Offers to transfer possession of the assistive 4 18 device to the manufacturer. No later than thirty days 4 19 after that offer, the manufacturer shall provide the 4 20 consumer with the comparable new assistive device or a 4 21 refund. When the manufacturer provides the new 4 22 assistive device or refund, the consumer shall return 4 23 the assistive device having the nonconformity to the 4 24 manufacturer, along with any endorsements necessary to 4 25 transfer legal possession to the manufacturer. 4 26 (2) Offers to return the assistive device to the 4 27 manufacturer. No later than thirty days after the 4 28 offer, the manufacturer shall provide a refund to the 4 29 consumer. When the manufacturer provides a refund, 4 30 the consumer shall return the assistive device having 4 31 the nonconformity to the manufacturer. 4 32 (3) Offers to transfer possession of a leased 4 33 assistive device to the manufacturer. No later than 4 34 thirty days after the offer, the manufacturer shall 4 35 provide a refund to the assistive device lessor. When 4 36 the manufacturer provides the refund, the assistive 4 37 device lessor shall provide to the manufacturer any 4 38 endorsements necessary to transfer legal possession to 4 39 the manufacturer. 4 40 3. Under the provisions of this section, the 4 41 current value of the written lease equals the total 4 42 amount for which that lease obligates the consumer 4 43 during the period of the lease remaining after its 4 44 early termination, plus the assistive device lessor's 4 45 early termination costs and the value of the assistive 4 46 device at the lease expiration date if the lease sets 4 47 forth that value, less the assistive device lessor's 4 48 early termination savings. 4 49 4. Under the provisions of this section, a 4 50 reasonable allowance for use shall not exceed the 5 1 amount obtained by multiplying the total amount for 5 2 which the written lease obligates the consumer by a 5 3 fraction, the denominator of which is one thousand 5 4 eight hundred twenty-five and the numerator of which 5 5 is the number of days that the consumer used the 5 6 assistive device before first reporting the 5 7 nonconformity to the manufacturer, assistive device 5 8 lessor, or assistive device dealer. 5 9 5. A person shall not enforce a lease against a 5 10 consumer after the consumer receives a refund. 5 11 Sec. 4. NEW SECTION. 216E.4 MANUFACTURER'S DUTY 5 12 TO PROVIDE REIMBURSEMENT OR A LOANER FOR TEMPORARY 5 13 REPLACEMENT OF ASSISTIVE DEVICES PENALTIES. 5 14 1. Whenever an assistive device covered by a 5 15 manufacturer's express warranty is tendered by a 5 16 consumer to the dealer from whom the assistive device 5 17 was purchased or exchanged for the repair of any 5 18 defect, malfunction, or nonconformity to which the 5 19 warranty is applicable, the manufacturer shall provide 5 20 the consumer, at the consumer's choice, for the 5 21 duration of the repair period, either a rental 5 22 assistive device reimbursement of up to twenty dollars 5 23 per day, or a loaner, without cost to the consumer, if 5 24 a loaner is reasonably available or obtainable by the 5 25 manufacturer, assistive device lessor, or assistive 5 26 device dealer, if any of the following applies: 5 27 a. The repair period exceeds ten working days, 5 28 including the day on which the device is tendered to 5 29 the manufacturer or an assistive device dealer 5 30 designated by the manufacturer for repairs. If the 5 31 assistive device dealer does not tender the assistive 5 32 device to the manufacturer in a timely enough manner 5 33 for the manufacturer to make the repairs within ten 5 34 days, the manufacturer shall have a cause of action 5 35 against the assistive device dealer for reimbursement 5 36 of any penalties that the manufacturer must pay. 5 37 b. The nonconformity is the same for which the 5 38 assistive device has been tendered to the assistive 5 39 device dealer for repair on at least two previous 5 40 occasions. 5 41 2. The provisions of this section regarding a 5 42 manufacturer's duty shall apply for the period of the 5 43 applicable express warranty, or until the date any 5 44 repair required by the warranty is completed and the 5 45 assistive device is returned to the consumer with the 5 46 nonconformity eliminated, whichever is later, even if 5 47 the assistive device is returned after the end of the 5 48 warranty period. 5 49 Sec. 5. NEW SECTION. 216E.5 NONCONFORMITY 5 50 DISCLOSURE REQUIREMENT. 6 1 An assistive device returned by a consumer or 6 2 assistive device lessor in this state or any other 6 3 state for nonconformity shall not be sold or leased 6 4 again in this state unless full written disclosure of 6 5 the reason for return is made to any prospective buyer 6 6 or lessee by the manufacturer, assistive device 6 7 dealer, or assistive device lessor. 6 8 Sec. 6. NEW SECTION. 216E.6 REMEDIES. 6 9 1. This chapter shall not limit rights or remedies 6 10 available to a consumer under any other law. 6 11 2. Any waiver of rights by a consumer under this 6 12 chapter is void. 6 13 3. In addition to pursuing any other remedy, a 6 14 consumer may bring an action to recover any damages 6 15 caused by a violation of this chapter. The court 6 16 shall award a consumer who prevails in such an action 6 17 no more than three times the amount of any pecuniary 6 18 loss, together with costs and reasonable attorney 6 19 fees, and any equitable relief that the court 6 20 determines is appropriate. 6 21 Sec. 7. NEW SECTION. 216E.7 EXEMPTIONS. 6 22 This chapter does not apply to a hearing aid sold, 6 23 leased, or transferred to a consumer by an audiologist 6 24 licensed under chapter 147, or a hearing aid dealer 6 25 licensed under chapter 154A, if the audiologist or 6 26 dealer provides either an express warranty for the 6 27 hearing aid or provides for service and replacement of 6 28 the hearing aid." 6 29 6 30 6 31 6 32 WITT of Black Hawk 6 33 6 34 6 35 6 36 BODDICKER of Cedar 6 37 HF 530.503 77 6 38 ec/jw/28
Text: H08026 Text: H08028 Text: H08000 - H08099 Text: H Index Bills and Amendments: General Index Bill History: General Index
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