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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 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, without cost to the consumer, if a loaner is
6 18 reasonably available or obtainable by the manufacturer,
6 19 assistive device lessor, or assistive device dealer, if any of
6 20 the following applies:
6 21 a. The repair period exceeds ten working days, including
6 22 the day on which the device is tendered to the manufacturer or
6 23 an assistive device dealer designated by the manufacturer for
6 24 repairs. If the assistive device dealer does not tender the
6 25 assistive device to the manufacturer in a timely enough manner
6 26 for the manufacturer to make the repairs within ten days, the
6 27 manufacturer shall have a cause of action against the
6 28 assistive device dealer for reimbursement of any penalties
6 29 that the manufacturer must pay.
6 30 b. The nonconformity is the same for which the assistive
6 31 device has been tendered to the assistive device dealer for
6 32 repair on at least two previous occasions.
6 33 2. The provisions of this section regarding a
6 34 manufacturer's duty shall apply for the period of the
6 35 manufacturer's express warranty or for two years from delivery
7 1 of the assistive device to the customer, whichever period of
7 2 time ends sooner.
7 3 Sec. 5. NEW SECTION. 216E.5 NONCONFORMITY DISCLOSURE
7 4 REQUIREMENT.
7 5 An assistive device returned by a consumer or assistive
7 6 device lessor in this state or any other state for
7 7 nonconformity shall not be sold or leased again in this state
7 8 unless full written disclosure of the reason for return is
7 9 made to any prospective buyer or lessee by the manufacturer,
7 10 assistive device dealer, or assistive device lessor.
7 11 Sec. 6. NEW SECTION. 216E.6 REMEDIES.
7 12 1. This chapter shall not limit rights or remedies
7 13 available to a consumer under any other law.
7 14 2. Any waiver of rights by a consumer under this chapter
7 15 is void.
7 16 3. In addition to pursuing any other remedy, a consumer
7 17 may bring an action to recover any damages caused by a
7 18 violation of this chapter. The court shall award a consumer
7 19 who prevails in such an action no more than three times the
7 20 amount of any pecuniary loss, together with costs and
7 21 reasonable attorney fees, and any equitable relief that the
7 22 court determines is appropriate.
7 23 Sec. 7. NEW SECTION. 216E.7 EXEMPTIONS.
7 24 This chapter does not apply to a hearing aid sold, leased,
7 25 or transferred to a consumer by an audiologist licensed under
7 26 chapter 147, or a hearing aid dealer licensed under chapter
7 27 154A, if the audiologist or dealer provides either an express
7 28 warranty for the hearing aid or provides for service and
7 29 replacement of the hearing aid.
7 30 EXPLANATION
7 31 This bill creates a new chapter regarding warranties for
7 32 assistive devices. The bill defines, for the purposes of this
7 33 chapter, "assistive devices", "consumer", "loaner",
7 34 "manufacturer", and other terms used in the chapter concerning
7 35 repair and cost.
8 1 The bill provides for a warranty on assistive devices of at
8 2 least one year. The bill further provides for the repair of a
8 3 nonconforming assistive device and provides a consumer with
8 4 the ability to obtain a refund or a replacement device if the
8 5 nonconformity is not repaired. The bill also provides that,
8 6 if certain conditions are met, a manufacturer must provide to
8 7 a consumer either at least partial reimbursement for inability
8 8 to use an assistive device or a free loaner assistive device
8 9 if the device is being repaired.
8 10 The bill also provides that a resale of a device returned
8 11 for a nonconformity must disclose the reason for the return to
8 12 a new consumer of the device.
8 13 The bill does not limit a consumer's right to pursue other
8 14 remedies concerning an assistive device and provides for a
8 15 civil action to obtain damages for a violation of this new
8 16 chapter.
8 17 The bill provides that hearing aids sold, leased, or
8 18 transferred to a consumer from an audiologist or hearing aid
8 19 dealer are exempt from this new chapter if the audiologist or
8 20 dealer provides an express warranty or provides for service
8 21 and replacement of the hearing aid.
8 22 LSB 1738SV 77
8 23 ec/jw/5
Text: SF00224 Text: SF00226 Text: SF00200 - SF00299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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