Notwithstanding any disclaimer of warranty, a motor vehicle contract of sale may be
voided by the buyer if the motor vehicle fails to pass, within seven days from the date of
such sale, the periodic staggered inspection at an inspection station licensed pursuant to
section seven W; provided, that the defects which are the reasons for the failure to issue
a certificate of inspection were not caused by the abusive or negligent operation of the
motor vehicle or by damage resulting from an accident or collision occurring after the
date of the sale; and provided, further, that the cost of repairs necessary to permit the
issuance of a certificate of inspection exceeds ten per cent of the purchase price of the
motor vehicle.
In order to void a motor vehicle sale under this section the buyer shall, within
fourteen days from the date of sale, notify the seller of his intention to do so, deliver
the motor vehicle to the seller, provide the seller with a written statement signed by an
authorized agent of such inspection station stating the reasons why the motor vehicle
failed to pass the safety or combined safety and emissions inspection and an estimate of
the cost of necessary repairs. The buyer shall be entitled to a refund of his purchase
price unless the buyer and seller agree in writing that the seller may make the necessary
repairs at his own cost and expense within a reasonable period of time thereafter. This
section shall apply only to motor vehicles purchased for the immediate personal or family
use of the buyer.
Issuance; consumer's rights and remedies.
(1) For the purposes of this section the following words shall have the
following meanings:
"Business day", Monday to Friday, inclusive, except for state or federal
holidays.
"Consumer", a buyer, other than for purposes of resale, of a motor
vehicle, any person to whom such motor vehicle is transferred during the period of any
express or statutory warranty under this section applicable to such motor vehicle, and
any other person entitled by the terms of such warranty to enforce its obligations.
"Dealer", any person engaged in the business of selling, offering for
sale, or negotiating the retail sale of used motor vehicles or selling motor vehicles
as broker or agent for another, including the officers, agents and employees of such
person and any combination or association of dealers, but not including a bank or
other financial institution, or the commonwealth, its agencies, bureaus, boards,
commissions, authorities, nor any of its political subdivisions. A person shall be
deemed to be engaged in the business of selling used motor vehicles if such person has
sold more than three used motor vehicles in the preceding twelve months.
"Motor vehicle" or "vehicle", any motor vehicle as defined in
section one, sold or replaced by a dealer or manufacturer, except that it shall not
include auto homes, vehicles built primarily for off-road use or any vehicle used
primarily for business purposes.
"Private seller", any person who is not a dealer and who offers to sell
or sells a used motor vehicle to a consumer.
"Purchase price", the total of all payments made for the purchase of a
vehicle, including but not limited to any finance charges, registration fees, payments
made for credit life, accident, health, and damage insurance, and collision and
related comprehensive insurance coverage's and service contracts and the value of a
trade-in.
"Repurchase price", the purchase price, as defined above, less any cash
award that was made by the dealer in an attempt to resolve the dispute and was
accepted by the consumer, and less any refunds or rebates to which the consumer is
entitled, plus any incidental damages not previously reimbursed, including but not
limited to the reasonable costs of towing from point of breakdown up to thirty miles
to obtain required repairs or to return the vehicle under this section, and the
reasonable costs of obtaining alternative transportation during the applicable
warranty period after the second day following each such breakdown not to exceed
fifteen dollars vehicle rental charges for each day in which the cost of such
alternative transportation is reimbursable.
"Used motor vehicle" or "used vehicle", any vehicle driven more
than the limited use necessary in moving or road testing a new vehicle prior to
delivery to a consumer, including a demonstrator vehicle, except that it shall not
include auto homes, vehicles built primarily for off road use, motorcycles, or any
vehicle used primarily for business purposes.
(2)
(A)
(i) No used motor vehicle shall be sold in the commonwealth by a dealer to
a consumer unless accompanied by an express written warranty covering the full cost
of both parts and labor necessary to repair any defect that impairs the said used
motor vehicle's safety or use; provided, however, that the consumer may be required
to pay no more than one hundred dollars total toward the repair of any covered
defect, series of defects or combination of defects during the warranty period.
Defects that affect only appearance shall not be deemed to impair safety or use for
the purposes of this section. For the purposes of this section, defect shall include
defect, malfunction or any combination or defects or malfunctions.
(ii) Defects or malfunctions which involve parts or components that are
covered or are warranted under an express warranty issued by the dealer of the used
motor vehicle shall be excluded from this section if the following conditions have
been met: the manufacturer's warranty has been duly assigned or transferred to the
buyer; is enforceable according to its terms; is not inconsistent with this section;
and, the seller has assured that the repair authorized by such manufacturer's
express warranty was made.
The terms of the seller's warranty shall be tolled for any period of time the
used motor vehicle is out of service by reason of repair under the manufacturer's
warranty.
(B) The express warranties required by this section shall be of the
following durations:
(i) For a used motor vehicle which, at the time of sale, has been operated
less than forty thousand miles, ninety days or three thousand seven hundred and
fifty miles, whichever occurs first. Said ninety days or three thousand seven
hundred and fifty mile warranty is in addition to any right the consumer may have
under section seven N.50.
(ii) For a used motor vehicle which, at the time of sale, has been
operated forty thousand miles or more, but less than eighty thousand miles, sixty
days or two thousand five hundred miles, whichever first occur.
(iii) For a used motor vehicle which, at the time of sale, has been
operated eighty thousand miles or more, but less than one hundred and twenty-five
thousand miles, thirty days or one thousand two hundred and fifty miles, whichever
first occur.
(iv) If the used motor vehicle's true mileage is not known, such warranty
period shall be determined by the age of said used motor vehicle in the following
manner: a used motor vehicle three years old or less shall have a warranty as
provided in clause (i); a used motor vehicle more than three, but less than six
years old, shall have a warranty as provided in clause (ii); and a used motor
vehicle six years old or more shall have a warranty as provided in clause (iii). A
used motor vehicle's age shall be determined by subtracting its model year from the
year in which the warranty holder purchased said used vehicle.
(C) The warranty periods established by this section shall be tolled during
any period in which the used motor vehicle is out of service as a result of any repair
attempt pursuant to any warranty created by this section. The applicable warranty
period shall be extended thirty days from the date of completion of any repair
required by this section as to the defect repaired if the warranty would otherwise
have expired during such period.
(3)
(A) A dealer may repair, within the meaning of this section, either by
performing the repair himself or by arranging and making payment for prompt repair by
another.
(i) A consumer shall return a vehicle for repair under this section by
presenting it to the dealer no later than five business days after the expiration of
the applicable warranty period and informing him of the defect. Said return period
shall be tolled during any time period in which the consumer has notified the dealer
of the defect but cannot reasonably present the vehicle to the dealer; including,
but not limited to, the reason that a used motor vehicle is inoperable and the
dealer refuses to pay the charge to tow said vehicle. The dealer shall immediately
accept return of a vehicle when it is so presented. Said used motor vehicle shall be
deemed out of service commencing the day it is so presented, notwithstanding any
dealer's failure to accept its return on said day. During the applicable warranty
period and the aforesaid return period, the dealer shall pay the reasonable costs of
towing from point of breakdown up to thirty miles to obtain required repairs or to
return the vehicle to the dealer.
Upon return of the used motor vehicle to the consumer after repair, the dealer
shall provide the consumer with a warranty repair receipt describing (a) the defect
complained of, (b) the work performed in an attempt to correct such defect and the
identity of the repairer if it is not the dealer, and (c) the parts replaced in
performing such work. For the dealer to toll the ten business day period as provided
in clause (ii) of this paragraph said dealer shall attach to each such warranty
repair receipt copies of such order forms, invoices, receipts or other evidence of a
parts order and its receipt to evidence his compliance with this paragraph.
(ii) If the dealer fails to repair the same defect within three attempts,
or if the used motor vehicle is out of service for more than a cumulative total of
ten business days after the consumer has returned it to the dealer for repair of the
same, then the dealer shall accept return of the vehicle from the consumer and
refund the full repurchase price, less a reasonable allowance for use. A reasonable
allowance for use shall be fifteen cents for each mile the used motor vehicle has
been operated between its sale and the dealer's repurchase.
A consumer shall have the option of retaining the use of any vehicle returned
under the provisions of this section until such time as said consumer has been
tendered a full refund. The use of any vehicle retained by a consumer after its
return to a manufacturer under the provisions of this section, shall, in instances
in which a refund is tendered, be reflected in the above-mentioned reasonable
allowance for use.
A used motor vehicle shall not be considered out of service for purposes of the
ten business-day period described hereinabove for any day in which a part necessary
to repair a defect complained of is not in the dealer's possession; provided,
however, that the dealer has ordered the part by reasonable means on the same day on
which he knew or should have known that the part was necessary, except that in no
event shall a part's unavailability operate to toll the ten business-day period for
more than twenty-one days. The applicable warranty period shall be extended by the
number of days a part is unavailable.
(iii) All dealers shall submit to state-certified, used car arbitration,
if such arbitration is requested by the consumer, asserting his or her right to a
repurchase under this section, within six months from the date of original delivery
to such consumer of a used motor vehicle. State-certified, used car arbitration
shall be performed by a professional arbitrator or arbitration firm appointed by the
secretary of consumer affairs and business regulation and operating in accordance
with the regulations promulgated pursuant to this section, and shall result in a
written finding of whether the motor vehicle in dispute meets the standards set
forth by this section for vehicles that are required to be repurchased. Said finding
shall be issued within forty-five days of receipt by said secretary of a request by
a consumer for state-certified arbitration under this section. Said secretary shall
promulgate rules and regulations governing the proceedings of state-certified, used
car arbitration which shall promote their fairness and efficiency. Such rules and
regulations shall include, but not be limited to, a requirement of the personal
objectivity of each such arbitrator, and the protection of the right of each party
to present its case and to be in attendance during any presentation made by the
other party.
If a motor vehicle is found by state-certified, used car arbitration to have met
the standards set forth by this section for vehicles required to be repurchased, and
if the dealer who sold said motor vehicle is found to have failed to provide said
refund as required, such dealer shall, within twenty-one days from the issuance of
such finding, deliver such refund, including the incidental and other costs set
forth in the definition of "repurchase price" or appeal the finding in a
district or superior court. No such appeal by a dealer shall be heard unless the
petition for such appeal is filed with the clerk of the district or superior court
within twenty-one days of issuance of the finding of the state-certified arbitration
and is accompanied by a bond in a principal sum equal to the money award made by the
state-certified arbitrator plus five hundred dollars for anticipated attorneys'
fees, secured by cash or its equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall not
limit or impair any right of recovery otherwise available pursuant to law, nor shall
the amount of the bond be relevant in determining the amount of recovery to which
the consumer shall be entitled.
Upon an appeal, the court shall vacate the award only if:
(a) the award was procured by corruption, fraud or other undue means;
(b) there was evident partiality by an arbitrator or corruption in any
of the arbitrators, or misconduct prejudicing the rights of any party; or
(c) the arbitrators exceeded their powers.
In addition to any other rights and remedies, any consumer dissatisfied with any
finding of state-certified, used car arbitration shall have the right to file a
claim pursuant to chapter ninety-three A.
In addition to any other recovery, any prevailing consumer shall be awarded
reasonable attorneys' fees and costs.
Whoever, within twenty-one days of any finding in favor of the consumer of the
state-certified, used car arbitration, fails to appeal such finding and does not
deliver a refund shall be punished by a fine of fifty dollars per day until the
delivery of such refund. Said fine shall not exceed five hundred dollars for each
such violation. The amount of said fine shall begin to accumulate on the
twenty-second day following the arbitration decision. If eighty-one days has elapsed
from the issuance of a finding in favor of the consumer of the state-certified, used
car arbitration, and no appeal has been taken and no award delivered and no fine
paid, the attorney general shall initiate proceedings against dealer for failure to
pay said fine. The proceedings initiated pursuant to the provisions of this section
shall be commenced in superior court department of the trial court.
In addition to the remedies hereinbefore provided, the attorney general may bring
an action on behalf of the commonwealth to restrain further violation of this
section, to enforce any provision, and for such other relief as may be appropriate.
(iv) At any time within the applicable warranty period and after a
consumer has complained of a defect, notwithstanding any objection from the
consumer, the dealer shall have the option of repurchasing a used vehicle and
refunding the full repurchase price, less a reasonable allowance for use. A
reasonable allowance for use shall be fifteen cents for each mile the used motor
vehicle had been operated between its sale and the dealer's repurchase.
(v) If the dealer is required to or elects to repurchase a vehicle under
the terms of this section, the consumer and dealer shall cooperate with each other
to execute all necessary documents in order to clear the title of any encumbrances
on the repurchased vehicle.
(B) It shall be an affirmative defense to any claim under this section that
an alleged defect
(i) does not impair the vehicle's use or safety,
(ii) is the result of owner negligence, abuse, damage caused by accident,
vandalism, or, an attempt to repair the vehicle by a person other than the dealer,
the dealer's designee, or the manufacturer's representative under clause (ii) of
paragraph (A) of subsection (2),
(iii) is the result of any attempt by the consumer to modify the vehicle,
(iv) was covered or warranted under an express warranty issued by the
manufacturer of such used motor vehicle, that such warranty issued by the
manufacturer of such used motor vehicle was in effect during the warranty period
established by this section, so long as the conditions in said clause (ii) of said
paragraph (A) of said subsection (2) are met.
(4) Clear and conspicuous notice of the warranties created by this section, of
the rights pertaining thereto, and of the implied warranty of merchantability shall be
given to the consumer in writing at the time the consumer purchases a used motor vehicle
from the dealer. Failure to provide such notice shall toll the warranty periods under
this section until such notice is given.
(5) The secretary of consumer affairs and business regulation shall promulgate
rules and regulations to implement the notice provisions of this section. Said rules and
regulations shall include the establishment of wording, format, placement, and
distribution of all notices specified in this section. In her discretion, and in order
to facilitate ease of understanding by consumers, said secretary may consolidate the
notices required by this section and any other notices pertaining to the purchase of
motor vehicles; provided, however, that such consolidation does not render the notices
inconsistent with any of the provisions of this section or any other law. Each notice
required by this section shall describe the procedures available to redress violations
of this section and shall contain the telephone number of the attorney general's
consumer protection division complaint section and the executive office of consumer
affairs and business regulation.
(6) A dealer's failure to comply with any of the provisions of this section
shall constitute an unfair or deceptive act under the provisions of chapter ninety-three
A.
(7) Notwithstanding any provisions of law to the contrary, this section shall
not apply to any used motor vehicle sold by a dealer to a consumer for less than seven
hundred dollars.
(8) A private seller shall clearly disclose to any prospective buyer, before
the sale is completed, all defects the seller knows of which impair the used motor
vehicle's safety or substantially impair its use. Failure to so disclose known defects
shall entitle the buyer, within thirty days after the sale, to rescind the sale and be
entitled to return of all monies paid to the seller less a reasonable amount for use as
defined in clause (iv) of paragraph (A) subsection (3). In any subsequent action by a
buyer under this section, if the court finds that the settlement offer was unreasonable
in light of the circumstances or that the private seller has otherwise failed to comply
with the requirements of this subsection, in addition to damages, it shall award the
buyer reasonable attorneys' fees and costs; if the court finds that the buyer's action
was frivolous or not in good faith, it shall award the seller reasonable attorneys' fees
and costs. It shall be an affirmative defense in any such action that an alleged defect
does not impair the vehicle's safety, or substantially impair its use, or that it is the
result of the buyer's negligence, abuse, damage caused by accident, vandalism or attempt
to modify the vehicle.
(9) Nothing in this section shall be construed in any way to limit the
enforceability of any implied warranties created by law, any rights created by section
seven N or seven N.50 or chapter ninety-three A or any rules and regulations promulgated
pursuant thereto, or express warranties given by a dealer in connection with the sale of
a used motor vehicle, or any other rights or remedies available to consumers under
applicable law.
(10) If a consumer is eligible for relief under the provisions of section
seven N.50 to have repairs effected or other relief provided under the provisions of an
express warranty covering such used motor vehicle issued by the manufacturer of such
used motor vehicle, said consumer shall make reasonable effort in accordance with the
terms and conditions thereof to obtain such relief or repairs before seeking enforcement
of rights under this section. If the consumer, notwithstanding his eligibility to do so,
is unable to enforce rights under said section seven N.50 or under such express warranty
and the dealer provides such relief or, in accordance with the provisions of this
section, repurchases such used motor vehicle, the dealer shall be subrogated to the
rights of such consumer against such manufacturer under the provisions of said section
seven N.50, such express warranty and otherwise in accordance with applicable law, and
may enforce the same in his name in the superior court or district court department.
Such manufacturer shall hold the dealer harmless from and against all damages,
liabilities, losses and reasonable expenses of suit, including reasonable attorneys'
fees arising out of or incurred by the dealer by its compliance with the provisions of
this section if such manufacturer, having been notified in writing by the dealer that
such rights have been asserted by a consumer, fails to resolve the same at its own
expense in or within seven business days.
(11) The licensing authorities responsible pursuant to section fifty-nine of
chapter one hundred and forty for licensing used motor vehicle dealers shall distribute
copies of this section to each dealer licensed at any time a license is granted or
renewed.
(12) The provisions of this section shall not apply to the sale of a leased
vehicle by a lessor to the lessee of said vehicle, a family member or employee of said
lessee or to the sale of a used motor vehicle by an employer to his employee.
(13) Any action brought pursuant to this section shall be commenced within two
years of the date of original delivery of the used motor vehicle to the consumer.
Sale and repair or replacement.
(1) For purposes of this section the following terms shall have the following
meanings:
"Business day", any day during which the service departments of
authorized dealers of the manufacturer of the motor vehicle are normally open for
business.
"Consumer", a buyer or lessee, other than for purposes of resale, of a
motor vehicle, any person to whom such motor vehicle is transferred during the
duration of any express or implied warranty applicable to such motor vehicle, and any
other person entitled by the terms of such warranty to enforce its obligations.
"Dealer", any class one seller of motor vehicles as defined in section
fifty-eight of chapter one hundred and forty.
"Lessee", any person who acquires the right to possession of and use of a
motor vehicle under a lease agreement for a term of not less than one year.
"Manufacturer", any person who is engaged in the business of manufacturing
motor vehicles, or, in the case of motor vehicles not manufactured in the United
States, any person who is engaged in the business of importing motor vehicles.
"Motor vehicle" or "vehicle", any motor vehicle as defined in
section one sold, leased or replaced by a dealer or manufacturer after the effective
date of this section, except that it shall not include auto homes, vehicles built
primarily for off-road use or any vehicle used primarily for business purposes.
"Nonconformity", any specific or generic defect or malfunction, or any
concurrent combination of such defects or malfunctions that substantially impairs the
use, market value or safety of a motor vehicle.
"Term of protection", one year or fifteen thousand miles of use from the
date of original delivery of a new motor vehicle, whichever comes first; or, in the
case of a replacement vehicle provided by a manufacturer to a consumer under this
section, one year or fifteen thousand miles from the date of delivery to the consumer
of said replacement vehicle, whichever comes first.
(2) If a motor vehicle does not conform to any applicable express or implied
warranty, and the consumer reports the nonconformity to the manufacturer of the vehicle,
its agent or its authorized dealer during the term of protection, the manufacturer, its
agent or its authorized dealer shall effect such repairs as are necessary to conform the
vehicle to such warranty.
If the manufacturer, its agent or authorized dealer does not conform the motor
vehicle to any such applicable express or implied warranty by curing any nonconformity
after a reasonable number of attempts, the manufacturer shall accept return of the
vehicle from the consumer. In instances in which a vehicle is sold and subsequently
returned, the manufacturer shall refund the full contract price of the vehicle including
all credits and allowances for any trade-in vehicle, less any cash award that was made
by the manufacturer in an attempt to resolve the dispute and was accepted by the
consumer, and a reasonable allowance for use, or shall offer to replace the vehicle. In
instances in which a vehicle is leased and subsequently returned, the manufacturer shall
refund all payments made by the consumer to the manufacturer under the terms of the
lease agreement less any cash award that was made by the manufacturer in an attempt to
resolve the dispute and was accepted by the consumer, and a reasonable allowance for
use, or shall offer to replace the vehicle. The consumer shall have an unqualified right
to reject a manufacturer's offer of replacement and demand a refund. In instances in
which a vehicle is replaced by a manufacturer under the provisions of this section, said
manufacturer shall reimburse the consumer for any fees for the transfer of registration
or any sales tax incurred by the consumer as a result of such replacement. In instances
in which a leased vehicle is replaced by a manufacturer under the terms of this section,
an identical model vehicle shall be provided to the consumer for the remaining term of
the original lease agreement. In instances in which a vehicle which was financed by the
manufacturer or its subsidiary or agent is replaced under the provisions of this
section, said manufacturer, subsidiary or agent shall not require the consumer to enter
into any refinancing agreement which would create any financial obligations upon such
consumer beyond those implied by the original financing agreement. In instances in which
a vehicle which was leased from a dealer or manufacturer is replaced under the
provisions of this section, said dealer or manufacturer shall not require the consumer
to enter into any lease agreement which would create any financial obligations upon such
consumer beyond those implied by the original lease agreement. In instances in which a
refund is tendered under the provisions of this section, the manufacturer shall also
reimburse the consumer for incidental costs including sales tax, registration fee,
finance charges and any cost of options added by an authorized dealer. Whenever a
vehicle is replaced a refund is given under the provisions of this section, in instances
in which towing services and rental vehicles were not made available at no cost to the
consumer, the manufacturer shall also reimburse the consumer for towing and reasonable
rental costs that were a direct result of vehicle nonconformity. Refunds shall be made
to the consumer and lien holder, if any, as their interests may appear. A reasonable
allowance for use for all motor vehicles other than motorcycles shall be obtained by
multiplying the total contract price of the vehicle, or in the case of a leased vehicle
the total amount of payments made by the consumer to the manufacturer under the terms of
the lease agreement, by a fraction having as its denominator one hundred thousand and
having as its numerator the number of miles that vehicle traveled prior to the
manufacturer's acceptance of its return. A reasonable allowance for use for motorcycles
shall be obtained by multiplying the total contract price of the motorcycle by a
fraction having as its denominator twenty-five thousand and having as its numerator the
number of miles that the vehicle traveled prior to the manufacturer's acceptance of its
return.
It shall be an affirmative defense to any claim under this section:
(i) that an alleged nonconformity does not substantially impair the use,
market value or safety of the vehicle;
(ii) that a nonconformity is the result of owner negligence, damage caused
by accident, vandalism, or attempt to repair the vehicle by a person other than the
manufacturer, its agent or authorized dealer; or
(iii) that a nonconformity is the result of any attempt substantially to
modify the vehicle which was not authorized by the manufacturer.
A consumer shall have the option of retaining the use of any vehicle returned under
the provisions of this section until such time as said consumer has been tendered a full
refund or a replacement that is acceptable to the consumer. The use of any vehicle
retained by a consumer after its return to a manufacturer under the provisions of this
section, shall, in instances in which a refund is tendered, be reflected in the above
mentioned reasonable allowance for use.
(4) A reasonable number of attempts shall be deemed to have been undertaken to
conform a motor vehicle to any applicable express or implied warranties if
(a) the same nonconformity has been subject to repair three or more times by
the manufacturer or its agents or authorized dealers within the term of protection,
but such nonconformity continues to exist or such nonconformity has recurred within
the term of protection, or
(b) the vehicle is out of service by reason of repair of any nonconformity
for a cumulative total of fifteen or more business days during the term of protection;
provided, however, that the manufacturer shall be afforded one additional opportunity,
not to exceed seven business days, to cure any nonconformity arising during the term
of protection, notwithstanding the fact that such additional opportunity to cure
commences after the term of protection. Such additional opportunity to cure shall
commence on the day the manufacturer first knows or should have known that the limits
specified in clause (a) or (b) have been met or exceeded. The term of protection, said
fifteen business day period and said additional opportunity to cure shall be extended
by any period of time during which repair services are not available to the consumer
as a direct result of a war, invasion, fire, flood or other natural disaster. The term
of protection, said fifteen business day period and said additional opportunity to
cure shall also be extended by that period of time during which repair services are
not available as a direct result of a strike; provided, however, that the
manufacturer, its agent, or authorized dealer provides or makes provision for the free
use of a vehicle to any consumer whose vehicle is out of service by reason of repair
during a strike. The burden shall be on the manufacturer to show that any event
claimed as a reason for an extension under the provisions of this paragraph was the
direct cause for the failure of the manufacturer, its agent or authorized dealer to
cure any nonconformity during the time of said event. Extensions for concurrent events
shall not be cumulative.
(5) Nothing in this section shall be construed as imposing any liability on an
authorized dealer or creating any cause of action by a consumer against a dealer under
the provisions of this section.
Nothing in this section shall be construed to limit the rights or remedies which are
otherwise available to a consumer or manufacturer under any other applicable provision
of law.
Nothing in this section shall be construed as imposing any liability on a dealer or
creating a cause of action by a manufacturer against its authorized dealer under this
section except with respect to
(i) failure by an authorized dealer to properly effect preparation,
installation of options or repairs when such preparation, installation of options or
repairs would have prevented the occurrence of or cured a nonconformity;
(ii) express warranties offered by an authorized dealer which exceed the
provisions of the manufacturer's express warranties; and
(iii) that portion of the cost of reimbursing a consumer for dealer-added
options which represents the dealer profit from the addition of such options. The
manufacturer shall reimburse its authorized dealer for all incidental and
consequential damages, including attorney's fees, incurred by such dealer as a direct
result of any legal action brought by a consumer under this section.
No consumer shall be required by any manufacturer, its agent or its authorized dealer
to give notice directly to a manufacturer of the existence of any nonconformity before
resorting to state-certified, new car arbitration.
No motor vehicle that is returned to the manufacturer under the provisions of this
section shall be resold in the commonwealth without clear and conspicuous written
disclosure of the fact that it was so returned prior to resale of the vehicle. The
attorney general shall prescribe the exact form and content of any such disclosure
statement.
(6) All manufacturers shall submit to state-certified, new car arbitration, if
such arbitration is requested by the consumer within eighteen months from the date of
original delivery to such consumer of a new motor vehicle. State-certified, new car
arbitration shall be performed by a professional arbitrator or arbitration firm
appointed by the secretary of consumer affairs and business regulation and operating in
accordance with the regulations promulgated pursuant to this section, and shall result
in a written finding of whether the motor vehicle in dispute meets the standards set
forth by this section for vehicles that are required to be replaced or refunded. Said
finding shall be issued within forty-five days of receipt by said secretary of a request
by a consumer for state-certified arbitration under this section. Said secretary shall
promulgate rules and regulations governing the proceedings of state-certified, new car
arbitration which shall promote their fairness and efficiency. Such rules and
regulations shall include, but not be limited to, a requirement of the personal
objectivity of each arbitrator in the results of the dispute he will hear, and the
protection of the right of each party to present its case and to be in attendance during
any presentation made by the other party. All findings of fact issuing from a
state-certified, new car arbitration shall be taken as prima facie evidence of whether
the standards set forth in this section for vehicles required to be refunded or replaced
have been met in any subsequent action brought by either party ensuing from the matter
considered in said arbitration.
If a motor vehicle is found by state-certified, new car arbitration to have met the
standards set forth by this section for vehicles required to be replaced or refunded,
and if the manufacturer of said motor vehicle is found to have failed to provide said
refund or replacement as required, such manufacturer shall, within twenty-one days from
the issuance of such finding, deliver such refund or replacement, including the
incidental and other costs set forth in subsection (3), or appeal the finding in
superior court. No appeal by a manufacturer shall be heard unless the petition for such
appeal is filed with the clerk of the superior court within twenty-one days of issuance
of the finding of the state-certified arbitration and is accompanied by a bond in a
principal sum equal to the money award made by the state-certified arbitrator plus two
thousand five hundred dollars for anticipated attorneys' fees, secured by cash or its
equivalent, payable to the consumer.
The liability of the surety of any bond filed pursuant to this section shall be
limited to the indemnification of the consumer in the action. Such bond shall not limit
or impair any right of recovery otherwise available pursuant to law, nor shall the
amount of the bond be relevant in determining the amount of recovery to which the
consumer shall be entitled. In the event that any state-certified arbitration, resulting
in an award of a refund or replacement, is upheld by the court, recovery by the consumer
shall include continuing damages in the amount of twenty-five dollars per day for each
day, subsequent to the day the motor vehicle was returned to the manufacturer pursuant
to subsection three, that said vehicle was out of use as a direct result of any
nonconformity not issuing from owner negligence, accident, vandalism, or any attempt to
repair or substantially modify the vehicle by a person other than the manufacturer, its
agent or authorized dealer; provided, however, that the manufacturer did not make a
comparable vehicle available to the consumer free of charge. In addition to any other
recovery, any prevailing consumer shall be awarded reasonable attorneys' fees and costs.
If the court finds that the manufacturer did not have any reasonable basis for its
appeal or that the appeal was frivolous, the court shall double the amount of the total
award made to the consumer. Any consumer dissatisfied with any finding of
state-certified, new car arbitration shall have the right to file a claim pursuant to
chapter ninety-three A.
(6A) A clear and conspicuous listing of the rights of the consumer under this
section shall be affixed by a sticker to a window of each new motor vehicle offered for
sale or lease in the commonwealth. An enumeration of these rights shall also be provided
along with ownership manual materials. The form and manner of these notices shall be
prescribed by the secretary of consumer affairs and business regulations.
(7) Failure to comply with any of the provisions of this section shall
constitute an unfair or deceptive act under the provisions of chapter ninety-three A.
The failure of a manufacturer either to abide by the decision of a state-certified
arbitration or to file a timely appeal shall entitle any prevailing consumer to an award
of no less than two times the actual damages, unless said manufacturer can prove that
such failure was beyond his control. For the purposes of said chapter ninety-three A,
the timely delivery by a manufacturer of a refund or acceptable replacement, pursuant to
a finding by state-certified arbitration, shall constitute the granting of relief upon
demand.
The secretary of consumer affairs and business regulation shall inform the office of
the attorney general of any method, act or practice of which she is aware that is deemed
by her to be a violation of any provision of this section.
(8) Whoever, within twenty-one days of any finding in favor of the consumer of
the state-certified, new car arbitration, fails to appeal such finding and does not
deliver a refund or replacement vehicle or notify the consumer of the estimated delivery
date of the replacement vehicle, shall be punished by a fine of five thousand dollars
per day until the delivery of such refund or replacement. The estimated delivery date
shall not exceed sixty days from the date the manufacturer notifies the consumer that a
delivery will be made. Said fine shall not exceed fifty thousand dollars for each such
violation. The amount of said fine shall begin to accumulate on the twenty-second day
following the arbitration decision. If eighty-one days has elapsed from the issuance of
a finding in favor of the consumer of the state-certified, new car arbitration and no
appeal has been taken and no award delivered and no fine paid, the attorney general
shall initiate proceedings against said manufacturer for failure to pay said fine. The
proceedings initiated pursuant to the provisions of this section shall be commenced in
superior court department of the trial court.
In addition to the remedies hereinbefore provided, the attorney general may bring an
action on behalf of the commonwealth to restrain further violation of this section, to
enforce any provision, and for such other relief as may be appropriate.