0001|                            HOUSE BILL 53
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                          SANDRA L. TOWNSEND
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO CONSUMER PROTECTION; ENACTING THE ASSISTIVE DEVICE
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0012|     LEMON LAW; ESTABLISHING A ONE-YEAR WARRANTY AND OTHER
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0013|     PROTECTIONS FOR CONSUMERS OF ASSISTIVE DEVICES. 
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  SHORT TITLE.--This act may be cited as the
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0017|     "Assistive Device Lemon Law".
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0018|          Section 2.  DEFINITIONS.--As used in the Assistive Device
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0019|     Lemon Law:
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0020|               A.  "assistive device" means a device, including a
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0021|     demonstrator, that a consumer purchases or accepts transfer of
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0022|     in New Mexico that is used for a major life activity,
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0023|     including manual wheelchairs, motorized wheelchairs, motorized
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0024|     scooters and motorized wheelchair lifts that allow access to
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0025|     motor vehicles; hearing aids, telephone communication devices
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<center>- 1 -</center>

0001|     for the deaf, assistive listening devices and other aids that
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0002|     enhance a person's ability to hear; and voice-synthesized or
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0003|     voice-activated computer software, optical scanners,
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0004|     augmentative communication devices and Braille printers;
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0005|               B.  "collateral costs" means expenses incurred by a
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0006|     consumer in connection with the repair of a nonconformity,
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0007|     including the cost of obtaining an alternative assistive
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0008|     device;
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0009|               C.  "consumer" means any of the following:
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0010|                    (1)  the purchaser of an assistive device, if
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0011|     the assistive device was purchased from a dealer or
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0012|     manufacturer for purposes other than resale;
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0013|                    (2)  a person to whom the assistive device is
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0014|     transferred for purposes other than resale, if the transfer
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0015|     occurs before the expiration of an express warranty applicable
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0016|     to the assistive device;
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0017|                    (3)  the person who can enforce the warranty;
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0018|     and
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0019|                    (4)  a person who leases an assistive device
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0020|     from a lessor pursuant to a written lease;
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0021|               D.  "demonstrator" means an assistive device used
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0022|     primarily for the purpose of demonstration to the public;
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0023|               E.  "early termination cost" means an expense or
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0024|     obligation that an assistive device lessor incurs as a result
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0025|     of both the termination of a written lease before the
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0001|     termination date set forth in that lease and the return of an
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0002|     assistive device to a manufacturer and includes a penalty for
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0003|     prepayment under a finance arrangement;
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0004|               F.  "early termination saving" means an expense or
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0005|     obligation that an assistive device lessor avoids as a result
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0006|     of both the termination of a written lease before the
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0007|     termination date set forth in the lease and the return of an
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0008|     assistive device to a manufacturer.  Early termination saving
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0009|     includes an interest charge that the assistive device lessor
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0010|     would have paid to finance the assistive device or, if the
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0011|     lessor does not finance the assistive device, the difference
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0012|     between the total amount for which the lease obligates the
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0013|     consumer during the period of the lease term remaining after
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0014|     the early termination and the present value of that amount at
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0015|     the date of the early termination;
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0016|               G.  "manufacturer" means a person who manufactures
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0017|     or assembles assistive devices and agents of that person,
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0018|     including an importer, distributor, factory branch,
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0019|     distributor branch and any warrantors of the manufacturer's
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0020|     assistive device, but does not include an assistive device
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0021|     dealer;
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0022|               H.  "nonconformity" or "nonconforming" means a
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0023|     condition or defect that substantially impairs the use, value
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0024|     or safety of an assistive device that was purchased or whose
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0025|     acceptance of transfer occurred in New Mexico and that is
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<center>- 3 -</center>

0001|     covered by an express warranty applicable to the assistive
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0002|     device or to a component of the assistive device, but does not
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0003|     include a condition or defect that is the result of abuse,
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0004|     neglect or unauthorized modification or alteration of the
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0005|     assistive device by a consumer; and
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0006|               I.  "reasonable attempt to repair" means, within
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0007|     the terms of an express warranty applicable to a new assistive
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0008|     device, that:
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0009|                    (1)  a nonconformity within the warranty is
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0010|     subject to repair by the manufacturer, the manufacturer's
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0011|     authorized dealer or a lessor at least four times and a
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0012|     nonconformity continues; or
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0013|                    (2)  the assistive device is out of service
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0014|     for an aggregate of at least thirty cumulative days because of
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0015|     warranty nonconformity.
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0016|          Section 3.  OBLIGATIONS AND INTERESTS.--
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0017|               A.  A manufacturer who sells an assistive device to
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0018|     a consumer, either directly or through a dealer, shall furnish
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0019|     the consumer with an express warranty for the assistive
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0020|     device.  The duration of the express warranty shall be not
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0021|     less than one year after first delivery of the assistive
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0022|     device to the consumer.  In the absence of a written warranty
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0023|     from the manufacturer, the manufacturer shall be deemed to
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0024|     have expressly warranted to the consumer of an assistive
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0025|     device that for a period of one year from the date of first
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0001|     delivery to the consumer, the assistive device will be free
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0002|     from any nonconformity.
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0003|               B.  If a new assistive device does not conform to
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0004|     an applicable express warranty and the consumer reports the
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0005|     nonconformity to the manufacturer, dealer or lessor and makes
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0006|     the assistive device available for repair during the warranty
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0007|     period, the nonconformity shall be repaired at no charge to
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0008|     the consumer.
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0009|               C.  If, after a reasonable attempt to repair, the
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0010|     nonconformity is not repaired, the manufacturer, at the
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0011|     direction of the consumer, shall:
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0012|                    (1)  accept return of the assistive device and
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0013|     replace it with a comparable new assistive device and refund
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0014|     any collateral costs within thirty days;
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0015|                    (2)  accept return of the assistive device and
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0016|     refund to the consumer and to any holder of a perfected
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0017|     security interest in the consumer's assistive device, as their
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0018|     interest may appear, the full purchase price plus any finance
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0019|     charge amount paid by the consumer at the point of sale and
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0020|     collateral costs; or
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0021|                    (3)  if the consumer was a lessee, accept
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0022|     return of the assistive device, refund to the lessor and to
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0023|     any holder of a perfected security interest in the assistive
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0024|     device, as their interest may appear, the current value of the
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0025|     written lease and refund to the consumer the amount that the
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<center>- 5 -</center>

0001|     consumer paid pursuant to the written lease plus any
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0002|     collateral costs.
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0003|               D.  The current value of the written lease equals
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0004|     the total amount for which that lease obligates the consumer
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0005|     during the period of the lease remaining after its early
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0006|     termination, plus the assistive device dealer's early
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0007|     termination costs and the value of the assistive device at the
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0008|     lease expiration date if the lease sets forth that value, less
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0009|     the assistive device lessor's early termination savings.
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0010|               E.  A reasonable allowance for use may be charged
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0011|     to the consumer based on the number of days that the consumer
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0012|     used the assistive device before the consumer first reported
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0013|     the nonconformity to the manufacturer, dealer or lessor.
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0014|               F.  To receive a comparable new assistive device or
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0015|     a refund due pursuant to Paragraph (1) or (2) of Subsection C
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0016|     of this section, a consumer shall offer to transfer possession
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0017|     of the nonconforming assistive device to the manufacturer.  No
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0018|     later than thirty days after the offer, the manufacturer shall
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0019|     provide the consumer with a comparable new assistive device or
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0020|     a refund.  When the manufacturer provides the new assistive
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0021|     device or refund, the consumer shall return the nonconforming
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0022|     assistive device to the manufacturer, along with any
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0023|     endorsements necessary to transfer legal possession to the
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0024|     manufacturer.
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0025|               G.  To receive a refund due pursuant to Paragraph
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0001|     (3) of Subsection C of this section, a lessor shall offer to
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0002|     transfer possession of the nonconforming assistive device to
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0003|     the manufacturer.  No later than thirty days after the offer,
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0004|     the manufacturer shall provide the refund to the lessor.  When
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0005|     the manufacturer provides the refund, the lessor shall provide
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0006|     to the manufacturer any endorsements necessary to transfer
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0007|     legal possession to the manufacturer.
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0008|               H.  No person shall enforce the lease against the
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0009|     consumer after the consumer receives a refund due pursuant to
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0010|     Paragraph (3) of Subsection C of this section.  
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0011|               I.  No assistive device returned by a consumer or
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0012|     lessor in this or any other state because of a nonconformity
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0013|     shall be resold or re-leased in this state unless full
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0014|     disclosure of the reasons for return is made to any
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0015|     prospective buyer or lessee.
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0016|          Section 4.  EXEMPTION FROM ACT.--The Assistive Device
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0017|     Lemon Law does not apply to an assistive device that has been
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0018|     provided to a person free of charge or to a person when he
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0019|     provides an assistive device to a person free of charge.
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0020|          Section 5.  ATTORNEY GENERAL RULES--ARBITRATION.--The
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0021|     attorney general may adopt and promulgate rules necessary to
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0022|     carry out the provisions of the Assistive Device Lemon Law,
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0023|     including rules concerning arbitration of disputes arising
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0024|     from nonconforming assistive devices and failures to comply
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0025|     with the Assistive Device Lemon Law.
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0001|          Section 6.  CONSUMER RIGHTS--ACTIONS--TREBLE DAMAGES.--
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0002|               A.  This section shall not be construed to limit
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0003|     rights and remedies available to a consumer under any other
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0004|     law.
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0005|               B.  In addition to pursuing any other remedy, a
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0006|     consumer may bring an action to recover actual damages or the
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0007|     sum of one hundred dollars ($100), whichever is greater. 
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0008|     Where the trier of fact finds that the party charged with a
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0009|     violation of the Assistive Device Lemon Law has willfully
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0010|     engaged in the violation, the court may award up to three
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0011|     times actual damages or three hundred dollars ($300),
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0012|     whichever is greater, to the party complaining of the
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0013|     violation.
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0014|               C.  The court shall award attorney fees and costs
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0015|     to the party complaining of a violation of the Assistive
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0016|     Device Lemon Law if he prevails.  The court shall award
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0017|     attorney fees and costs to the party charged with a violation
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0018|     of the Assistive Device Lemon Law if it finds that the party
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0019|     complaining of the violation brought an action that was
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0020|     groundless.
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0021|               D.  In any class action filed under this section,
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0022|     the court may award damages to the named plaintiffs as
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0023|     provided in Subsection B of this section and may award members
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0024|     of the class such actual damages as were suffered by each
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0025|     member of the class as a result of a violation of the
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0001|     Assistive Device Lemon Law.
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0002|                              
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