Text: HSB00133 Text: HSB00135 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 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 payments remaining for the period 2 12 of the lease term remaining after the early termination and 2 13 the present value of those remaining payments at the date of 2 14 the early termination. 2 15 9. "Loaner" means an assistive device, provided free of 2 16 charge to the consumer, for use by the consumer, that need not 2 17 be new or be identical to, or have functional capabilities 2 18 equal to or greater than, those of the original assistive 2 19 device, but that meets all of the following conditions: 2 20 a. The loaner is in good working order. 2 21 b. The loaner performs, at a minimum, the most essential 2 22 functions of the original assistive device, in light of the 2 23 disabilities of the consumer. 2 24 c. Any differences between the loaner and the original 2 25 assistive device do not create a threat to the consumer's 2 26 health or safety. 2 27 10. "Manufacturer" means a person who manufactures or 2 28 assembles assistive devices and agents of that person, 2 29 including an importer, a distributor, a factory branch, 2 30 distributor branch, and any warrantors of the assistive 2 31 device, but does not include an assistive device dealer or 2 32 assistive device lessor. 2 33 11. "Nonconformity" means any defect, malfunction, or 2 34 condition which substantially impairs the use, value, or 2 35 safety of an assistive device or any of its component parts, 3 1 but does not include a condition, defect, or malfunction that 3 2 is the result of abuse, neglect, or unauthorized modification 3 3 or alteration of the assistive device by the consumer. 3 4 12. "Reasonable attempt to repair" means any of the 3 5 following occurring within the term of an express warranty 3 6 applicable to a new assistive device or within one year after 3 7 first delivery of the assistive device to a consumer, 3 8 whichever is sooner: 3 9 a. The manufacturer, assistive device lessor, or any of 3 10 the manufacturer's authorized assistive device dealers accept 3 11 return of the new assistive device for repair at least two 3 12 times. 3 13 b. The manufacturer, assistive device lessor, or any of 3 14 the manufacturer's authorized assistive device dealers place 3 15 the assistive device out of service for an aggregate of at 3 16 least thirty cumulative days because of warranty non- 3 17 conformities. 3 18 Sec. 2. NEW SECTION. 216E.2 EXPRESS WARRANTIES. 3 19 1. A manufacturer or assistive device lessor who sells or 3 20 leases an assistive device to a consumer, either directly or 3 21 through an assistive device dealer, shall furnish the consumer 3 22 with an express warranty for the assistive device, warranting 3 23 the assistive device to be free of any nonconformity. The 3 24 duration of the express warranty shall be not less than one 3 25 year after first delivery of the assistive device to the 3 26 consumer. If a manufacturer fails to furnish an express 3 27 warranty as required by this section, the assistive device 3 28 shall be covered by an express warranty as if the manufacturer 3 29 had furnished an express warranty to the consumer as required 3 30 by this section. 3 31 2. An express warranty does not take effect until the 3 32 consumer takes possession of the new assistive device. 3 33 Sec. 3. NEW SECTION. 216E.3 ASSISTIVE DEVICE REPLACEMENT 3 34 OR REFUND. 3 35 1. If an assistive device does not conform to an 4 1 applicable express warranty and the consumer reports the 4 2 nonconformity to the manufacturer, the assistive device 4 3 lessor, or any of the manufacturer's authorized assistive 4 4 device dealers, and makes the assistive device available for 4 5 repair before one year after first delivery of the device to 4 6 the consumer or within the period of the express warranty if 4 7 the warranty is longer than one year, a reasonable attempt to 4 8 repair the nonconformity shall be made. 4 9 2. If, after a reasonable attempt to repair, the 4 10 nonconformity is not repaired, the manufacturer shall carry 4 11 out the requirements of either paragraph "a" or "b" upon the 4 12 request of a consumer. 4 13 a. The manufacturer shall provide for a refund by doing 4 14 one of the following: 4 15 (1) If the assistive device was purchased by the consumer, 4 16 accept return of the assistive device and refund to the 4 17 consumer and to any holder of perfected security interest in 4 18 the consumer's assistive device, as the holder's interest may 4 19 appear, the full purchase price plus any finance charge paid 4 20 by the consumer at the point of sale and collateral costs, 4 21 less a reasonable allowance for use. 4 22 (2) If the assistive device was leased by the consumer, 4 23 accept return of the assistive device, refund to the assistive 4 24 device lessor and to any holder of a perfected security 4 25 interest in the assistive device, as the holder's interest may 4 26 appear, the current value of the written lease and refund to 4 27 the consumer the amount that the consumer paid under the 4 28 written lease plus any collateral costs, less a reasonable 4 29 allowance for use. The manufacturer shall have a cause of 4 30 action against the dealer or lessor for reimbursement of any 4 31 amount that the manufacturer pays to a consumer which exceeds 4 32 the net price received by the manufacturer for the assistive 4 33 device. 4 34 b. The manufacturer shall provide a comparable new 4 35 assistive device or offer a refund to the consumer if the 5 1 consumer does any one of the following: 5 2 (1) Offers to transfer possession of the assistive device 5 3 to the manufacturer. No later than thirty days after that 5 4 offer, the manufacturer shall provide the consumer with the 5 5 comparable new assistive device or a refund. When the 5 6 manufacturer provides the new assistive device or refund, the 5 7 consumer shall return the assistive device having the 5 8 nonconformity to the manufacturer, along with any endorsements 5 9 necessary to transfer legal possession to the manufacturer. 5 10 (2) Offers to return the assistive device to the 5 11 manufacturer. No later than thirty days after the offer, the 5 12 manufacturer shall provide a refund to the consumer. When the 5 13 manufacturer provides a refund, the consumer shall return the 5 14 assistive device having the nonconformity to the manufacturer. 5 15 (3) Offers to transfer possession of a leased assistive 5 16 device to the manufacturer. No later than thirty days after 5 17 the offer, the manufacturer shall provide a refund to the 5 18 assistive device lessor. When the manufacturer provides the 5 19 refund, the assistive device lessor shall provide to the 5 20 manufacturer any endorsements necessary to transfer legal 5 21 possession to the manufacturer. 5 22 3. Under the provisions of this section, the current value 5 23 of the written lease equals the total amount for which that 5 24 lease obligates the consumer during the period of the lease 5 25 remaining after its early termination, plus the assistive 5 26 device lessor's early termination costs and the value of the 5 27 assistive device at the lease expiration date if the lease 5 28 sets forth that value, less the assistive device lessor's 5 29 early termination savings. 5 30 4. Under the provisions of this section, a reasonable 5 31 allowance for use shall not exceed the amount obtained by 5 32 multiplying the total amount for which the written lease 5 33 obligates the consumer by a fraction, the denominator of which 5 34 is one thousand eight hundred twenty-five and the numerator of 5 35 which is the number of days that the consumer used the 6 1 assistive device before first reporting the nonconformity to 6 2 the manufacturer, assistive device lessor, or assistive device 6 3 dealer. 6 4 5. A person shall not enforce a lease against a consumer 6 5 after the consumer receives a refund. 6 6 Sec. 4. NEW SECTION. 216E.4 MANUFACTURER'S DUTY TO 6 7 PROVIDE REIMBURSEMENT FOR TEMPORARY REPLACEMENT OF ASSISTIVE 6 8 DEVICES – PENALTIES. 6 9 1. Whenever an assistive device covered by a 6 10 manufacturer's express warranty is tendered by a consumer to 6 11 the dealer from whom the assistive device was purchased or 6 12 exchanged for the repair of any defect, malfunction, or 6 13 nonconformity to which the warranty is applicable, the 6 14 manufacturer shall provide the consumer, at the consumer's 6 15 choice, for the duration of the repair period, either a rental 6 16 assistive device reimbursement of up to twenty dollars per 6 17 day, or a loaner, if any of the following applies: 6 18 a. The repair period exceeds ten working days, including 6 19 the day on which the device is tendered to the manufacturer or 6 20 an assistive device dealer designated by the manufacturer for 6 21 repairs. If the assistive device dealer does not tender the 6 22 assistive device to the manufacturer in a timely enough manner 6 23 for the manufacturer to make the repairs within ten days, the 6 24 manufacturer shall have a cause of action against the 6 25 assistive device dealer for reimbursement of any penalties 6 26 that the manufacturer must pay. 6 27 b. The nonconformity is the same for which the assistive 6 28 device has been tendered to the assistive device dealer for 6 29 repair on at least two previous occasions. 6 30 2. The provisions of this section regarding a 6 31 manufacturer's duty shall apply for the period of the 6 32 manufacturer's express warranty or for two years from delivery 6 33 of the assistive device to the customer, whichever period of 6 34 time ends sooner. 6 35 Sec. 5. NEW SECTION. 216E.5 NONCONFORMITY DISCLOSURE 7 1 REQUIREMENT. 7 2 An assistive device returned by a consumer or assistive 7 3 device lessor in this state or any other state for 7 4 nonconformity shall not be sold or leased again in this state 7 5 unless full written disclosure of the reason for return is 7 6 made to any prospective buyer or lessee by the manufacturer, 7 7 assistive device dealer, or assistive device lessor. 7 8 Sec. 6. NEW SECTION. 216E.6 REMEDIES. 7 9 1. This chapter shall not limit rights or remedies 7 10 available to a consumer under any other law. 7 11 2. Any waiver of rights by a consumer under this chapter 7 12 is void. 7 13 3. In addition to pursuing any other remedy, a consumer 7 14 may bring an action to recover any damages caused by a 7 15 violation of this chapter. The court shall award a consumer 7 16 who prevails in such an action no more than three times the 7 17 amount of any pecuniary loss, together with costs and 7 18 reasonable attorney fees, and any equitable relief that the 7 19 court determines is appropriate. 7 20 Sec. 7. NEW SECTION. 216E.7 EXEMPTIONS. 7 21 This chapter does not apply to a hearing aid sold, leased, 7 22 or transferred to a consumer by an audiologist licensed under 7 23 chapter 147, or a hearing aid dealer licensed under chapter 7 24 154A, if the audiologist or dealer provides either an express 7 25 warranty for the hearing aid or provides for service and 7 26 replacement of the hearing aid. 7 27 EXPLANATION 7 28 This bill creates a new chapter regarding warranties for 7 29 assistive devices. The bill defines, for the purposes of this 7 30 chapter, "assistive devices", "consumer", "loaner", 7 31 "manufacturer", and other terms used in the chapter concerning 7 32 repair and cost. 7 33 The bill provides for a warranty on assistive devices of at 7 34 least one year. The bill further provides for the repair of a 7 35 nonconforming assistive device and provides a consumer with 8 1 the ability to obtain a refund or a replacement device if the 8 2 nonconformity is not repaired. The bill also provides that, 8 3 if certain conditions are met, a manufacturer must provide to 8 4 a consumer either at least partial reimbursement for inability 8 5 to use an assistive device or a free loaner assistive device 8 6 if the device is being repaired. 8 7 The bill also provides that a resale of a device returned 8 8 for a nonconformity must disclose the reason for the return to 8 9 a new consumer of the device. 8 10 The bill does not limit a consumer's right to pursue other 8 11 remedies concerning an assistive device and provides for a 8 12 civil action to obtain damages for a violation of this new 8 13 chapter. 8 14 The bill provides that hearing aids sold, leased, or 8 15 transferred to a consumer from an audiologist or hearing aid 8 16 dealer are exempt from this new chapter if the audiologist or 8 17 dealer provides an express warranty or provides for service 8 18 and replacement of the hearing aid. 8 19 LSB 2104HC 77 8 20 ec/jw/5
Text: HSB00133 Text: HSB00135 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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