08 LC 34
1846S
The
Senate Special Judiciary Committee offered the following substitute to HB
470:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
repeal Article 28 of Chapter 1 of Title 10 of the Official Code of Georgia
Annotated, relating to motor vehicle warranty rights; to enact a new Article 28
of Chapter 1 of Title 10 to be known as the "Georgia Lemon Law"; to provide for
a short title; to provide for legislative intent; to provide for definitions; to
provide for documents and information to be provided to consumers; to provide
for a duty of the manufacturer to repair and correct nonconformities; to provide
for replacement or repurchase of nonconforming vehicles; to provide for an
informal dispute settlement mechanism; to provide for arbitration; to provide
for an appeal of the arbitration decision; to require exhaustion of remedies by
the consumer; to provide for a new motor vehicle arbitration panel; to provide
for resale of a nonconforming vehicle; to provide for collection of a consumer
fee; to provide for new motor vehicle dealer liability; to provide for other
rights and remedies; to provide for staffing; to provide for rulemaking
authority; to provide for severability; to provide for waiver of rights under
provisions as contrary to public policy; to provide for related matters; to
provide effective dates; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
28 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating
to motor vehicle warranty rights, is amended by striking it in its entirety and
inserting in its place a new article to read as follows:
"ARTICLE
28
10-1-780.
This
article shall be known and may be cited as the 'Georgia Lemon Law.'
10-1-781.
The
General Assembly recognizes that a new motor vehicle is a major consumer
purchase and that a defectively manufactured new motor vehicle is likely to
create hardship for, or may cause injury to, the consumer. It is the intent of
the General Assembly to create a procedure for expeditious resolution of
complaints and disputes concerning nonconforming new motor vehicles, to provide
a method for notifying consumers of their rights under this article, and to
ensure that consumers receive information, documents, and service necessary to
enable them to exercise their rights under this article. In enacting these
comprehensive measures, the General Assembly intends to encourage manufacturers
to take all steps necessary to correct nonconformities in new motor vehicles and
to create the proper blend of private and public remedies necessary to enforce
this article.
10-1-782.
Unless
the context clearly requires otherwise, as used in this article, the
term:
(1)
'Adjusted capitalized cost' means the amount shown as the adjusted capitalized
cost in the lease agreement.
(2)
'Administrator' means the administrator appointed pursuant to Code Section
10-1-395 or his or her designee.
(3)
'Authorized agent' means any person, including a franchised motor vehicle
dealer, who is authorized by the manufacturer to service motor
vehicles.
(4)
'Collateral charges' means charges incurred by a consumer as a result of the
purchase of a new motor vehicle including, but not limited to, charges
attributable to factory or dealer installed options, sales tax and title
charges, and earned finance charges.
(5)
'Consumer' means each of the following:
(A)
A person who purchases or leases a new motor vehicle for personal, family, or
household use and not for the purpose of selling or leasing the new motor
vehicle to another person; and
(B)
A person who purchases or leases ten or fewer new motor vehicles a year for
business purposes other than limousine rental services.
(6)
'Days' means calendar days.
(7)
'Express warranty' means a warranty which is given by the manufacturer in
writing.
(8)
'Incidental costs' means any reasonable expenses incurred by a consumer in
connection with the repair of a new motor vehicle, including, but not limited
to, payments to new motor vehicle dealers for the attempted repair of
nonconformities, towing charges, and the costs of obtaining alternative
transportation.
(9)
'Informal dispute settlement mechanism' means any procedure established,
employed, utilized, or sponsored by a manufacturer for the purpose of resolving
disputes with consumers under this article.
(10)
'Lemon law rights period' means the period ending two years after the date of
the original delivery of a new motor vehicle to a consumer or the first 24,000
miles of operation after delivery of a new motor vehicle to the original
consumer, whichever occurs first. The lemon law rights period shall be extended
by one day for each day that repair services are not available to the consumer
as a direct result of a strike, war, invasion, terrorist act, blackout, fire,
flood, other disaster, or declared state of emergency.
(11)
'Lessee' means any consumer who enters into a written lease agreement or
contract to lease a new motor vehicle for a period of at least one year and is
responsible for repairs to such vehicle.
(12)
'Lessee cost' means the aggregate payment made by the lessee at the inception of
the lease agreement or contract, inclusive of any allowance for a trade-in
vehicle, and all other lease payments made by or on behalf of the lessee to the
lessor.
(13)
'Lessor' means a person who holds title to a new motor vehicle that is leased to
a consumer under a written lease agreement or contract or who holds the
lessor´s rights under such agreement.
(14)
'Manufacturer' means any person engaged in the business of constructing or
assembling new motor vehicles or engaged in the business of importing or
receiving imports of new motor vehicles into the United States for the purpose
of selling or distributing them to new motor vehicle dealers.
(15)
'New motor vehicle' means any self-propelled vehicle primarily designed for the
transportation of persons or property over the public highways that was leased,
purchased, or registered in this state by the consumer or lessor to whom the
original motor vehicle title was issued without previously having been issued to
any person other than a new motor vehicle dealer. The term 'new motor vehicle'
does not include any vehicle on which the title and other transfer documents
show a used, rather than new, vehicle. The term 'new motor vehicle' also does
not include trucks with more than 12,000 pounds gross vehicle weight rating,
motorcycles, or golf carts. If a new motor vehicle is a motor home, this
article shall apply to the self-propelled vehicle and chassis, but does not
include those portions of the vehicle designated, used, or maintained primarily
as living quarters, office, or commercial space.
(16)
'New motor vehicle dealer' means a person who holds a dealer agreement with a
manufacturer for the sale of new motor vehicles, who is engaged in the business
of purchasing, selling, servicing, exchanging, leasing, or dealing in new motor
vehicles, or who is licensed or otherwise authorized to utilize trademarks or
service marks associated with one or more makes of motor vehicles in connection
with such sales.
(17)
'Nonconformity' means a defect, a serious safety defect, or a condition, any of
which substantially impairs the use, value, or safety of a new motor vehicle to
the consumer or renders the new motor vehicle nonconforming to a warranty. A
nonconformity does not include a defect, a serious safety defect, or a condition
that is the result of abuse, neglect, or unauthorized modification or alteration
of the new motor vehicle.
(18)
'Panel' means the new motor vehicle arbitration panel as designated in this
article.
(19)
'Person' shall have the same meaning as provided in Code Section
10-1-392.
(20)
'Purchase price' means, in the case of a sale of a new motor vehicle to a
consumer, the cash price of the new motor vehicle appearing in the sales
agreement or contract, inclusive of any reasonable allowance for a trade-in
vehicle. In the case of a lease executed by a consumer, 'purchase price' refers
to the agreed upon value of the vehicle as shown in the lease agreement or
contract.
(21)
'Reacquired vehicle' means a new motor vehicle with an alleged nonconformity
that has been replaced or repurchased by the manufacturer as the result of any
court order or judgment, arbitration decision, voluntary settlement entered into
between a manufacturer and the consumer, or voluntary settlement between a new
motor vehicle dealer and a consumer in which the manufacturer directly or
indirectly participated.
(22)
'Reasonable number of attempts' under the lemon law rights period shall be as
set forth in subsection (a) of Code Section 10-1-784.
(23)
'Reasonable offset for use' means an amount calculated by multiplying the
purchase price of a vehicle by the number of miles directly attributable to
consumer use as of the date on which the consumer first delivered the vehicle to
the manufacturer, its authorized agent, or the new motor vehicle dealer for
repair of a nonconformity and dividing the product by 120,000, or in the case of
a motor home 90,000.
(24)
'Replacement motor vehicle' means a new motor vehicle that is identical or at
least equivalent to the motor vehicle to be replaced as the motor vehicle to be
replaced existed at the time of purchase or execution of the lease.
(25)
'Serious safety defect' means a life-threatening defect or a malfunction 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.
(26)
'Superior court' means the superior court in the county where the consumer
resides, except if the consumer does not reside in this state, then the superior
court in the county where an arbitration hearing was conducted pursuant to this
article.
(27)
'Warranty' means any manufacturer´s express warranty or any affirmation of
fact or promise made by the manufacturer in connection with the sale of a new
motor vehicle to a consumer concerning the vehicle´s materials,
workmanship, operation, or performance which becomes part of the basis of the
bargain. The term shall not include any extended coverage purchased by the
consumer as a separate item or any statements made by the dealer in connection
with the sale of a motor vehicle to a consumer which relate to the nature of the
material or workmanship and affirm or promise that such material or workmanship
is free of defects or will meet a specified level of performance.
10-1-783.
(a)
The manufacturer shall publish an owner´s manual and provide it to the new
motor vehicle dealer. The owner´s manual shall include a clear and
conspicuous listing of addresses, e-mail addresses, facsimile numbers, and
toll-free telephone numbers for the manufacturer´s customer service
personnel who are authorized to direct activities regarding repair of the
consumer´s vehicle. A manufacturer shall also provide all applicable
manufacturer´s written warranties to the new motor vehicle dealer, who
shall transfer the owner´s manual and all applicable manufacturer´s
written warranties to the consumer at the time of purchase or vehicle
acquisition.
(b)
At the time of purchase or vehicle acquisition, the new motor vehicle dealer
shall provide the consumer with a written statement that explains the
consumer´s rights under this article. The statement shall be written by
the administrator and shall contain information regarding the procedures and
remedies under this article.
(c)
By October 1 of each year, the manufacturer shall forward to the administrator
one copy of the owner´s manual and the express warranty for each make and
model of current year new motor vehicles it sells in this state. To the extent
the instructions, terms, and conditions in the owner´s manuals and express
warranties for other models of the same make are substantially the same,
submission of the owner´s manual and express warranty for one model and a
list of all other models for that make will satisfy the requirements of this
subsection.
(d)
Each time the consumer´s new motor vehicle is returned from being diagnosed
or repaired, the manufacturer, its authorized agent, or the new motor vehicle
dealer shall provide to the consumer a fully itemized and legible statement or
repair order containing a general description of the problem reported by the
consumer; the date and the odometer reading when the vehicle was submitted for
repair; the date and odometer reading when the vehicle was made available to the
consumer; the results of any diagnostic test, inspection, or test drive; a
description of any diagnosis or problem identified by the manufacturer, its
authorized agent, or the new motor vehicle dealer; and an itemization of all
work performed on the vehicle, including, but not limited to, parts and
labor.
(e)
Upon request of the consumer, the manufacturer, its authorized agent, or the new
motor vehicle dealer shall provide a copy of any report or computer reading
compiled by the manufacturer´s representative regarding inspection,
diagnosis, or test drive of the consumer´s new motor vehicle.
10-1-784.
(a)(1)
If a consumer reports a nonconformity during the lemon law rights period, the
manufacturer, its authorized agent, or the new motor vehicle dealer shall be
allowed a reasonable number of attempts to repair and correct the nonconformity.
A reasonable number of attempts shall be deemed to have been undertaken by the
manufacturer, its authorized agent, or the new motor vehicle dealer if, during
the lemon law rights period:
(A)
A serious safety defect has been subject to repair one time and the serious
safety defect has not been corrected;
(B)
The same nonconformity has been subject to repair three times, and the
nonconformity has not been corrected; or
(C)
The vehicle is out of service by reason of repair of one or more nonconformities
for a cumulative total of 30 days.
If
the vehicle is being repaired by the manufacturer through an authorized agent or
a new motor vehicle dealer on the date that the lemon law rights period expires,
the lemon law rights period shall be extended until that repair attempt has been
completed.
(2)(A)
If the manufacturer through an authorized agent or a new motor vehicle dealer is
unable to repair and correct a nonconformity after a reasonable number of
attempts, the consumer shall notify the manufacturer by statutory overnight
delivery or certified mail, return receipt requested, of the need to repair and
correct the nonconformity. The notice shall be sent to the address provided by
the manufacturer in the owner´s manual. The manufacturer shall have 28
days from its receipt of the notice to make a final attempt to repair and
correct the nonconformity.
(B)
By not later than the close of business on the seventh day following receipt of
notice from the consumer, the manufacturer shall notify the consumer of the
location of a repair facility that is reasonably accessible to the consumer. By
not later than the close of business on the fourteenth day following the
manufacturer´s receipt of notice, the consumer shall deliver the
nonconforming new motor vehicle to the designated repair facility.
(C)
If the manufacturer fails to notify the consumer of the location of a reasonably
accessible repair facility within seven days of its receipt of notice, or fails
to complete the final attempt to repair and correct the nonconformity with the
28 day time period, the requirement that it be given a final attempt to repair
and correct the nonconformity shall not apply. However, if the consumer
delivers the nonconforming new motor vehicle to the designated repair facility
more than 14 days from the date the manufacturer receives notice from the
consumer, the 28 day time period shall be extended and the manufacturer shall
have 14 days from the date the nonconforming new motor vehicle is delivered to
the repair facility to complete the final attempt to repair and correct the
nonconformity.
(3)
No manufacturer, its authorized agent, or new motor vehicle dealer may refuse to
diagnose or repair any alleged nonconformity for the purpose of avoiding
liability under this article.
(b)(1)
If the manufacturer, through an authorized agent or new motor vehicle dealer to
whom the manufacturer directs the consumer to deliver the vehicle, is unable to
correct a nonconformity after the final attempt, or if a vehicle has been out of
service by reason of repair of one or more nonconformities for 30 days during
the lemon law rights period, the manufacturer shall, at the option of the
consumer, repurchase or replace the vehicle. The consumer shall notify the
manufacturer, in writing by statutory overnight delivery or certified mail,
return receipt requested, of which option the consumer elects. The manufacturer
shall have 20 days from receipt of the notice to repurchase or replace the
vehicle.
(2)(A)
If a consumer who is a lessee elects to receive a replacement motor vehicle, in
addition to providing the replacement motor vehicle, the manufacturer shall pay
to the lessor an amount equal to all charges that the lessor will incur as a
result of the replacement transaction and shall pay the lessee an amount equal
to all incidental costs that have been incurred by the lessee plus all charges
that the lessee will incur as a result of the replacement transaction. If a
lessee elects to receive a replacement motor vehicle, all terms of the existing
lease agreement or contract shall remain in force and effect, except that the
vehicle identification information contained in the lease agreement or contract
shall be changed to conform to the vehicle identification information of the
replacement vehicle.
(B)
If a consumer who is not a lessee elects to receive a replacement motor vehicle,
in addition to providing the replacement motor vehicle, the manufacturer shall
pay to the consumer an amount equal to all incidental costs incurred by the
consumer plus all charges that the consumer will incur as a result of the
replacement transaction.
(3)(A)
If a consumer who is a lessee elects a repurchase, the manufacturer shall pay to
the lessee an amount equal to all payments made by the lessee under the lease
agreement or contract, including, but not limited to, the lessee cost, plus all
incidental costs, less a reasonable offset for use of the nonconforming new
motor vehicle. The manufacturer shall pay to the lessor an amount equal to 110
percent of the adjusted capitalized cost of the nonconforming new motor vehicle.
After the lessor has received payment from the manufacturer as specified in this
subparagraph and payment from the consumer of all past due charges, if any, the
consumer shall have no further obligation to the lessor.
(B)
If a consumer who is not a lessee elects a repurchase, the manufacturer shall
pay to the consumer an amount equal to the purchase price of the nonconforming
new motor vehicle plus all collateral charges and incidental costs, less a
reasonable offset for use of the nonconforming new motor vehicle. Payment shall
be made to the consumer and lienholder of record, if any, as their interests may
appear on the records of ownership.
10-1-785.
(a)(1)
If a manufacturer does not replace or repurchase a nonconforming new motor
vehicle after being requested to do so under subsection (b) of Code Section
10-1-784, the consumer may move to compel replacement or repurchase by applying
for arbitration pursuant to Code Section 10-1-786. However, if a manufacturer
has established an informal dispute settlement mechanism which the administrator
has certified as complying with the provisions and rules of this article, the
consumer shall be eligible to apply for arbitration only after submitting a
dispute under this article to the informal dispute settlement
mechanism.
(2)
A consumer must file a claim with the manufacturer´s certified informal
dispute settlement mechanism no later than one year after expiration of the
lemon law rights period.
(3)
After a decision has been rendered by the certified informal dispute settlement
mechanism, the consumer is eligible to apply for arbitration pursuant to Code
Section 10-1-786.
(4)
If a decision is not rendered by the certified informal dispute settlement
mechanism within 40 days of filing, the requirement that the consumer submit his
or her dispute to the certified informal dispute settlement mechanism shall not
apply and the consumer is eligible to apply for arbitration under Code Section
10-1-786.
(b)
Certified informal dispute settlement mechanisms shall be required to take into
account the principles contained in and any rules promulgated under this article
and shall take into account all legal and equitable factors germane to a fair
and just decision. A decision shall include any remedies appropriate under the
circumstances, including repair, replacement, refund, and reimbursement for
collateral charges and incidental costs. For purposes of this Code section, the
phrase 'take into account the principles contained in and any rules promulgated
under this article' means to be aware of the provisions of this article, to
understand how they might apply to the circumstances of the particular dispute,
and to apply them if it is appropriate and fair to both parties to do
so.
(c)
A certified informal dispute settlement mechanism shall keep such records as
prescribed by the administrator in rules promulgated under this article and
shall allow the administrator, without notice, to inspect and obtain copies of
the records. Copies of any records requested by the administrator shall be
provided promptly to the administrator at no cost.
(d)
A manufacturer may apply to the administrator for certification of its informal
dispute settlement mechanism. The administrator may, in his or her discretion,
impose requirements on an informal dispute settlement mechanism in order for it
to be certified. Within a reasonable time following receipt of the application,
the administrator shall certify the informal dispute settlement mechanism or
notify the manufacturer of the reason or reasons for denial of the requested
certification.
(e)
At any time the administrator has reason to believe that a certified informal
dispute settlement mechanism is no longer in compliance with this article, he or
she may notify the manufacturer of intent to revoke the informal dispute
settlement mechanism´s certification. The notice shall contain a statement
of the reason or reasons for the revocation.
(f)
The manufacturer shall have ten days from its receipt of notice of denial of
requested certification or notice of intent to revoke certification to submit a
written request for a hearing to contest the denial or intended revocation. If
a hearing is requested, it shall be held within 30 days of the
administrator´s receipt of the hearing request. The hearing shall be
conducted by the Office of State Administrative Hearings following the
procedures set forth in Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.'
(g)
No representation shall be made to a consumer that his or her dispute must be
submitted to an informal dispute settlement mechanism that is not certified by
the administrator pursuant to this Code section.
10-1-786.
(a)
A consumer shall request arbitration by filing a written application for
arbitration with the administrator. The application must be filed no later than
one year from the date of expiration of the lemon law rights period or 60 days
from the conclusion of the certified informal dispute settlement
mechanism´s proceeding, whichever occurs later.
(b)(1)
After receiving an application for arbitration, the administrator shall
determine whether the dispute is eligible for arbitration. Manufacturers shall
be required to submit to arbitration under this article if the consumer´s
dispute is deemed eligible for arbitration by the administrator. Disputes
deemed eligible for arbitration shall be assigned to an arbitrator or
arbitrators appointed pursuant to Code Section 10-1-789.
(2)(A)
A consumer whose dispute is determined to be ineligible for arbitration by the
administrator may appeal the determination of ineligibility to an arbitrator or
arbitrators appointed pursuant to Code Section 10-1-789.
(B)
If the arbitrator or arbitrators determine that the consumer´s dispute is
eligible for arbitration, the arbitrator or arbitrators shall retain
jurisdiction and the consumer´s dispute shall proceed in accordance with
this Code section.
(C)
If the arbitrator or arbitrators determine that the consumer´s dispute is
not eligible for arbitration, a written decision shall be prepared and sent to
the consumer and manufacturer by certified mail, return receipt
requested.
(D)
The decision of ineligibility may be appealed by the consumer under the
provisions set forth in subsection (a) of Code Section 10-1-787. On appeal, the
court shall consider only the issue of eligibility for arbitration.
(3)
If the court finds that a consumer´s appeal from a determination of
ineligibility is frivolous or has been filed in bad faith or for the purpose of
harassment, the court may require the consumer to pay to the administrator all
costs incurred as a direct result of the appeals from the administrator´s
determination of ineligibility.
(c)
A lessee shall notify the lessor of the pending arbitration, in writing, within
ten days of the lessee´s receipt of notice that a dispute has been deemed
eligible for arbitration and shall provide to the arbitrator or arbitrators
proof that notice was given to the lessor. Within ten days of its receipt of
notice from the lessee, a lessor may petition the arbitrator or arbitrators to
be a party to the arbitration proceeding.
(d)
The arbitrator or arbitrators shall make every effort to conduct the arbitration
hearing within 40 days from the date the dispute is deemed eligible for
arbitration. The hearing shall be held at a location that is reasonably
convenient to the Georgia consumer. Failure to hear the case within 40 days
shall not divest authority of the arbitrator or arbitrators to hear the dispute
or void any decision ultimately rendered.
(e)
If the arbitrator or arbitrators determine:
(1)
That a reasonable number of attempts has been undertaken to repair and correct
the nonconformity and that the manufacturer was given the opportunity to make a
final attempt to repair and correct the nonconformity and was unable to correct
it; or
(2)
That a new motor vehicle was out of service by reason of repair of one or more
nonconformities for a cumulative total of 30 days within the lemon law rights
period,
the
consumer shall be awarded replacement or repurchase of the new motor vehicle as
provided under Code Section 10-1-784. The arbitrator or arbitrators also may
award attorney´s fees and technical or expert witness fees to a consumer
who prevails.
(f)
The decision of the arbitrator or arbitrators shall be in writing, be signed,
and contain findings of fact and conclusions of law. The original signed
decision shall be filed with the administrator and copies shall be sent to all
parties. The filing of the decision with the administrator constitutes entry of
the decision.
(g)
A decision of the arbitrator or arbitrators that has become final under the
provisions of subsection (a) of Code Section 10-1-787 may be filed with the
clerk of the superior court, shall have all the force and effect of a judgment
or decree of the court, and may be enforced in the same manner as any other
judgment or decree.
(h)
No arbitrator may be required to testify concerning any arbitration and the
arbitrator´s notes or other records are not subject to discovery. This
provision does not extend to testimony or documents sought in connection with
legal claims brought against an arbitrator arising out of an arbitration
proceeding.
10-1-787.
(a)
The decision of the arbitrator or arbitrators is final unless a party to the
arbitration, within 30 days of entry of the decision, appeals the decision to
the superior court. A party who appeals a decision shall follow the procedures
set forth in Article 2 of Chapter 3 of Title 5, and any appeal shall be de novo;
however, the decision of the arbitrator or arbitrators shall be admissible in
evidence.
(b)
If the manufacturer appeals, the court may require the manufacturer to post
security for the consumer´s financial loss due to the passage of time for
review.
(c)
If the manufacturer appeals and the consumer prevails, recovery, in addition to
the arbitrator´s award, shall include all charges incurred by the consumer
during the pendency of, or as a result of, the appeal, including, but not
limited to, continuing collateral and incidental costs, technical or expert
witness fees, attorney´s fees, and court costs.
(d)
A manufacturer which does not appeal a decision in favor of a consumer must
fully comply with the decision within 40 days of entry thereof. If a
manufacturer does not fully comply within the 40 day time period, the
administrator may issue an order imposing a civil penalty of up to $1,000.00 per
day for each day that the manufacturer remains out of compliance. The
provisions of Code Sections 10-1-398 and 10-1-398.1 shall apply in connection
with the imposition of a civil penalty under this subsection. It shall be an
affirmative defense to the imposition of a civil penalty under this subsection
that a delay or failure to comply was beyond the manufacturer´s control or
that a delay was acceptable to the consumer.
10-1-788.
The
provisions of this article are not available to a consumer in a civil action
unless the consumer has first exhausted all remedies provided for in this
article.
10-1-789.
(a)
The administrator shall establish a new motor vehicle arbitration panel to
resolve disputes between consumers and manufacturers arising under this article.
The administrator, in his or her discretion, may operate the panel by
contracting with public or private entities to conduct arbitrations under this
article or by appointing individuals to serve as panel member arbitrators. An
arbitrator shall be licensed to practice law in the State of Georgia and a
member in good standing of the State Bar of Georgia or shall have at least two
years´ experience in professional arbitration or dispute resolution. No
arbitrator shall be affiliated with or involved in the manufacture,
distribution, sale, lease, or servicing of motor vehicles.
(b)
Panel member arbitrators and entities that contract with the administrator to
provide arbitration services shall be compensated for time and expenses at a
rate to be determined by the administrator.
(c)
Each arbitration proceeding shall be conducted by either one or three
arbitrators, each of whom is to be assigned by the administrator or contracted
entity.
(d)
Neither the administrator, an entity with which the administrator has
contracted, nor any arbitrator shall be civilly liable for any decision, action,
statement, or omission made in connection with any proceeding under this
article, except in circumstances where the decision, action, statement, or
omission was made with malice or gross negligence.
10-1-790.
(a)
No manufacturer, its authorized agent, new motor vehicle dealer, or other
transferor shall knowingly resell, either at wholesale or retail, lease,
transfer a title, or otherwise transfer a reacquired vehicle, including a
vehicle reacquired under a similar statute of any other state, unless the
vehicle is being sold for scrap and the manufacturer has notified the
administrator of the proposed sale or:
(1)
The fact of the reacquisition and nature of any alleged nonconformity are
clearly and conspicuously disclosed in writing to the prospective transferee,
lessee, or buyer; and
(2)
The manufacturer warrants to correct such nonconformity for a term of one year
or 12,000 miles, whichever occurs first.
A
knowing violation of this subsection shall constitute an unfair or deceptive act
or practice in the conduct of consumer transactions under Part 2 of Article 15
of Chapter 1 of Title 10 and will subject the violator to an action by a
consumer under Code Section 10-1-399.
(b)
The manufacturer shall have 30 days to notify the administrator that a vehicle
has been reacquired in this state under the provisions of this article. The
notice shall be legible and include, at a minimum, the vehicle year, make,
model, and identification number; the date and mileage at the time the vehicle
was reacquired; the nature of the alleged nonconformity; the reason for
reacquisition; and the name and address of the original consumer. When the
manufacturer resells, leases, transfers, or otherwise disposes of a reacquired
vehicle, the manufacturer shall, within 30 days of the resale, lease, transfer,
or disposition, notify the administrator of the vehicle year, make, model, and
identification number; the date of the sale, lease, transfer, or disposition of
the vehicle; and the name and address of the buyer, lessee, or
transferee.
(c)
If a manufacturer resells, leases, transfers, or otherwise disposes of a motor
vehicle in this state that it reacquired under a similar statute of any other
state, the manufacturer shall, within 30 days of the resale, lease, transfer, or
disposition, notify the administrator of the transaction. The contents of the
notice shall comply with the requirements of subsection (b) of this Code
section.
(d)
Manufacturers shall use forms approved by the administrator. The forms shall
contain the information required under this Code section and any other
information the administrator deems necessary for implementation of this Code
section.
10-1-791.
(a)
A fee of $3.00 shall be collected by the new motor vehicle dealer from the
consumer at completion of a sale or execution of a lease of each new motor
vehicle. The fee shall be forwarded quarterly to the Office of Planning and
Budget for deposit in the new motor vehicle arbitration account created in the
state treasury. The payments are due and payable the first day of the month in
each quarter for the previous quarter´s collection and shall be mailed by
the new motor vehicle dealer not later than the twentieth day of such month.
The first day of the month in each quarter is July 1, October 1, January 1, and
April 1 for each year. Consumer fees in the account shall be used for the
purposes of this article. Funds in excess of the appropriated amount remaining
in the new motor vehicle arbitration account at the end of each fiscal year
shall be transferred to the general treasury. The new motor vehicle dealer
shall retain $1.00 of each fee collected to cover administrative
costs.
(b)
The administrator appointed pursuant to subsection (g) of Code Section 10-1-395
shall have the power to enforce the provisions of this Code section. The
administrator´s enforcement power shall include:
(1)
The authority to investigate alleged violations through use of all investigative
powers available under Part 2 of Article 15 of this chapter, the 'Fair Business
Practices Act'; and
(2)
The authority to initiate proceedings, pursuant to Code Section 10-1-397, in the
event of a violation of this Code section. Such proceedings include, without
limitation, issuance of a cease and desist order, a civil penalty order imposing
a civil penalty up to a maximum of $2,000.00 for each violation, and proceedings
to seek additional relief in any superior court of competent jurisdiction. The
provisions of Code Sections 10-1-398, 10-1-398.1, 10-1-402, and 10-1-405 shall
apply to proceedings initiated by the administrator under this Code
section.
10-1-792.
(a)
Except as provided in subsection (a) of Code Section 10-1-790, this article
shall not create or give rise to any cause of action by manufacturers or
consumers against new motor vehicle dealers. No new motor vehicle dealer shall
be held liable by a manufacturer or a consumer for any collateral charges,
incidental charges, costs, purchase price refunds, or vehicle replacements.
Manufacturers and consumers shall not make new motor vehicle dealers party to an
arbitration proceeding or any other proceeding under this article. A new motor
vehicle dealer that is named as a party in any proceeding brought by a consumer
or a manufacturer under this article, except as provided in subsection (a) of
Code Section 10-1-790, shall be entitled to an award of reasonable
attorney´s fees and expenses of litigation incurred in connection with such
proceeding.
(b)
The provisions of this article shall not impair any obligation under any
manufacturer-dealer franchise agreement; provided, however, that any provision
of any manufacturer-dealer franchise agreement which attempts to shift any duty,
obligation, responsibility, or liability imposed upon a manufacturer by this
article to a new motor vehicle dealer, either directly or indirectly, shall be
void and unenforceable, except for any liability imposed upon a manufacturer by
this article which is directly caused by the gross negligence of the dealer in
attempting to repair the motor vehicle after such gross negligence has been
determined by the hearing officer, as provided in Article 22 of this chapter,
the 'Georgia Motor Vehicle Franchise Practices Act.'
10-1-793.
(a)
A violation of this article shall constitute an unfair and deceptive act or
practice in the conduct of consumer transactions under Part 2 of Article 15 of
this chapter, the 'Fair Business Practice Act'; provided, however, that
enforcement against such violations shall be by public enforcement by the
administrator and, except as provided in subsection (a) of Code Section
10-1-790, shall not be enforceable through private action under Code Section
10-1-399.
(b)
Except as otherwise provided, this article is cumulative with other laws and is
not exclusive. The rights and remedies provided for in this article shall be in
addition to any other rights and remedies that are otherwise available to a
consumer under any other law.
10-1-794.
All
administrative staff hired by the administrator to aid in the administration of
this article shall be in the unclassified service and compensated at a salary
determined by the administrator.
10-1-795.
The
administrator shall promulgate rules and regulations and establish procedures
necessary to carry into effect, implement, and enforce the provisions of this
article. The authority granted to the administrator pursuant to this Code
section shall be exercised at all times in conformity with Chapter 13 of Title
50, the 'Georgia Administrative Procedure Act.'
10-1-796.
If
any provision of this article or its application to any person or circumstance
is held invalid, the invalidity does not affect other provisions or applications
of this article which can be given effect without the invalid provision or
application, and to this end the provisions of this article are
severable.
10-1-797.
Any
agreement entered into by a consumer that waives, limits, or disclaims the
rights set forth in this article shall be unenforceable as contrary to public
policy."
SECTION
2.
Code
Section 10-1-795 as enacted by this Act shall become effective on this
Act´s approval by the Governor or upon its becoming law without such
approval; the remaining provisions of this Act shall become effective January 1,
2009.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.