10-1-780.
Short Title
This article shall be known and may be cited as the "Motor Vehicle
Warranty Rights Act."
(Code 1981, § 10-1-780, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-781.
Legislative intent.
The General Assembly recognizes that a new motor vehicle is a major
consumer purchase and that a defective motor vehicle is likely to create
hardship for, or may cause injury to, the consumer. It is the intent of
the General Assembly to ensure that the consumer is made aware of his or
her rights under this article. In enacting these comprehensive measures,
it is the intent of the General Assembly to create the proper blend of
private and public remedies necessary to enforce this article.
(Code 1981, § 10-1-781, enacted by Ga. L. 1990, p. 1013, § 1.)
10-1-782.
Definitions.
Unless the context clearly requires otherwise, the definitions in this
Code section apply throughout this article. As used in this article, the
term:
(1) "Administrator"
means the administrator appointed pursuant to Code Section 10-1-395.
(2) "Collateral
charges" means those additional charges to a consumer or lessor
wholly incurred as a result of the acquisition purchase of the motor
vehicle. For the purposes of this article, collateral charges include but
are not limited to manufacturer installed or dealer installed items or
service charges, earned finance charges incurred by a consumer in the case
of a purchase, and by the lessor in the case of a lease, sales tax, and
title charges.
(3) "Consumer"
means any person who has entered into an agreement or contract for the
transfer, lease, or purchase of a new motor vehicle primarily for
personal, family, or household purposes, regardless of how the documents
characterize the transaction. The term shall also mean and include any
sole proprietorship, partnership, or corporation which is a commercial owner
or lessee of no more than three new motor vehicles and which has ten or
fewer employees and a net income after taxes of $100,000.00 per annum or
less for federal income tax purposes. For the limited purpose of enforcing
the rights granted under this article, the term "consumer" will also
include any person or entity regularly engaged in the business of leasing
new motor vehicles to consumers.
(4) "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 or determination was conducted or
made pursuant to this article.
(5) "Distributor"
means a person or entity holding a distribution agreement with a
manufacturer for the distribution of new motor vehicles to new motor
vehicle dealers 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 distribution, who is not responsible to
the manufacturer for honoring the manufacturer's express warranty, and who
does not issue an express warranty to consumers.
(6) "Express warranty"
means a warranty which is given by the manufacturer in writing.
(7) "Incidental costs"
means any reasonable expenses incurred by the consumer in connection with
the repair of the new motor vehicle, including but not limited to payments
to dealers for attempted repairs of nonconformities, towing charges, and
the costs of obtaining alternative transportation.
(8) "Informal dispute
resolution settlement mechanism" means any procedure established,
employed, utilized, or run by a manufacturer for the purpose of resolving
disputes with consumers regarding any warranty.
(9) "Lemon law rights
period" means the period ending one year after the date of the
original delivery of a new motor vehicle to a consumer or the first 12,000
miles of operation after delivery of a new motor vehicle to a consumer,
whichever occurs first.
(10) "Manufacturer"
means any person engaged in the business of constructing or assembling new
motor vehicles or engaged in the business of importing new motor vehicles
into the United States for the purpose of selling or distributing new
motor vehicles to new motor vehicle dealers.
(11) "New motor
vehicle" means any self-propelled vehicle, primarily designed for
the transportation of persons or property over the public highways, that
was leased or purchased in this state or registered by the original
consumer in this state and on which the original motor vehicle title was
issued to the lessor or purchaser without having been previously issued to
any person other than the selling dealer. If the 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 a mobile dwelling, office, or commercial space.
The term "new motor vehicle" does not include motorcycles or trucks with
10,000 pounds or more gross vehicle weight rating. The term "new motor
vehicle" shall not include any vehicle on which the title and other
transfer documents show a used, rather than new, vehicle. The term "new
motor vehicle" includes a demonstrator or lease-purchase, as long as a
manufacturer's warranty was issued as a condition of sale, unless
specifically excluded under this definition.
(12) "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,
distributing, 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.
For the purposes of subsection (d) of Code Section 10-1-784, concerning
private civil actions for violations of this article, the term "new motor
vehicle dealer" shall include any person or entity regularly engaged in
the business of leasing new motor vehicles to consumers.
(13) "Nonconformity"
means a defect, serious safety defect, or condition that substantially
impairs the use, value, or safety of a new motor vehicle to the consumer,
but does not include a defect or condition that is the result of abuse,
neglect, or unauthorized modification or alteration of the new motor
vehicle.
(14) "Panel"
means a new motor vehicle arbitration panel as designated in Code Sections
10-1-786 and 10-1-794.
(15) "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, contract,
or leasing agreement, including any reasonable allowance for a trade-in
vehicle. In determining whether the trade-in allowance was reasonable, the
panel may take into account whether the purchase price of the vehicle was
at fair market value or not and make appropriate adjustments to ensure
that the consumer is made whole but not unjustly enriched. In the case of
a consumer lease of a new motor vehicle, "purchase price" means the cash
price paid by the lessor to a dealer or distributor to purchase the new
motor vehicle.
(16) "Reasonable offset
for use" means an amount directly attributable to use by the
consumer before the consumer requests repurchase or replacement by the
manufacturer pursuant to Code Section 10-1-784. The reasonable offset for
use shall be computed by the number of miles that the vehicle traveled
before the consumer's request of repurchase or replacement multiplied by
the purchase price and divided by 100,000.
(17) "Reasonable number
of attempts" under the lemon law rights period means the definition
as provided in Code Section 10-1-784.
(18) "Replacement motor
vehicle" means a new motor vehicle that is identical or reasonably
equivalent to the motor vehicle to be replaced, as the motor vehicle to be
replaced existed at the time of purchase or lease.
(19) "Serious safety
defect" means a life-threatening malfunction or nonconformity.
(20) "Substantially
impair" means to render the new motor vehicle unreliable, or unsafe
for ordinary use, or to diminish the resale value of the new motor vehicle
more than a meaningful amount below the average resale value for
comparable motor vehicles.
(21) "Warranty"
means any express written warranty of the manufacturer but shall not
include any extended coverage purchased by the consumer as a separate
item.
(Code 1981, § 10-1-782, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 94, § 10.)
10-1-783.
Dealers to provide owner's manual with customer service information;
written statement of consumer's rights; reporting nonconformity; copies of
reports; refusal to diagnose or repair; extension of lemon law rights and
30 day out-of-service periods.
(a) Each new motor vehicle dealer shall
provide an owner's manual which shall be published by the manufacturer and
include a list of the addresses and phone numbers at which consumers may,
at no cost, contact the manufacturer's customer service personnel who are
authorized to direct activities regarding repair of the consumer's
vehicle.
(b) At the time of purchase, 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) For the purposes of this article, if a
new motor vehicle has a nonconformity and the consumer reports the
nonconformity during the lemon law rights period to the manufacturer, its
agent, or the new motor vehicle dealer who sold the new motor vehicle, the
vehicle shall be repaired at the manufacturer's expense to correct the
nonconformity regardless of whether such repairs are made after the
expiration of the lemon law rights period. If in any subsequent proceeding
under this article it is determined that the consumer's repair did not
qualify under this article, and the manufacturer was not otherwise
obligated to repair the vehicle, the consumer shall be liable to the
manufacturer for the costs of the repair.
(d) Upon request from the consumer, the
manufacturer or new motor vehicle dealer shall provide a copy of any
report or computer reading compiled by the manufacturer's field or zone
representative regarding inspection, diagnosis, or test-drive of the
consumer's new motor vehicle.
(e) Each time the consumer's vehicle is
returned from being diagnosed or repaired under the lemon law rights
period or under a warranty, the new motor vehicle dealer shall provide to
the consumer a fully itemized, legible statement or repair order
indicating any diagnosis made, and all work performed on the vehicle,
including but not limited to a general description of the problem reported
by the consumer or an identification of the defect or condition, parts and
labor, the date and the odometer reading when the vehicle was submitted
for repair, and the date when the vehicle was made available to the
consumer.
(f) No manufacturer, its agent, or new motor
vehicle dealer may refuse to diagnose or repair any nonconformity for the
purpose of avoiding liability under this article.
(g) The lemon law rights period and 30 day
out-of-service period shall be extended by any time that repair services
are not available to the consumer as a direct result of a strike, war,
invasion, fire, flood, or other natural disaster.
(Code 1981, § 10-1-783, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-784.
Non-repair of vehicle; contractual obligations between lessor and
consumer; replacement of vehicle; attempts to correct nonconformity;
duration of lemon law rights period; liability of dealer or distributor;
enforcement of violations; election of remedies; effect of article on
dealer franchise or distributor agreement.
(a)
(1) If the manufacturer, its agent, or the
new motor vehicle dealer is unable to repair or correct any nonconformity
in a new motor vehicle after a reasonable number of attempts, the consumer
shall notify the manufacturer by certified mail, return receipt requested,
at the address provided by the manufacturer. The manufacturer shall,
within seven days after receipt of such notification, notify the consumer
of a reasonably accessible repair facility and after delivery of the
vehicle to the designated repair facility by the consumer, the
manufacturer shall, within 14 days, conform the motor vehicle to the
warranty. If the manufacturer is unable to repair or correct any
nonconformity of the new motor vehicle, the manufacturer shall, within 30
days of the consumer's written request, by certified mail, return receipt
requested, at the option of the consumer, or the lessor in the event of a
leased motor vehicle, replace or repurchase the new motor vehicle. If the
manufacturer fails to notify the consumer of a reasonably accessible
repair facility or perform the repairs within the time periods prescribed
in this subsection, the requirement that the manufacturer be given a final
attempt to cure the nonconformity does not apply.
(2) If a lessor elects replacement, the
contractual obligation, except for those terms of the agreement which
identify the vehicle, between the lessor and the consumer shall not be
altered. If a lessor elects repurchase, it shall return to the consumer a
sum equal to the allowance for any trade-in, and down payment or initial
balloon payment, made by the consumer, and all future obligations of the
consumer to the lessor shall cease. In the event a lessor elects to
require the manufacturer to repurchase a leased vehicle, the consumer will
remain liable for all lease obligations arising prior to the date that the
lessor elects such replacement, but will have no future obligations under
the lease, and will be liable for no penalty for early termination. A
lessor must elect either a repurchase or replacement within 30 days of
receiving written notice from the consumer that such an election is
desired; if the lessor fails to make such an election within the 30 days,
the consumer may make the election to repurchase or replace and the lessor
shall be bound by the consumer's election.
(3) The replacement motor vehicle shall be
identical or reasonably equivalent to the motor vehicle to be replaced.
Such replacement shall include payment of all collateral charges which the
consumer or lessor will incur a second time which would not have been
incurred again except for the replacement, and any and all incidental
costs incurred by the consumer or lessor. In the case of a replacement
motor vehicle, the reasonable offset for use shall be paid by the consumer
to the manufacturer. Compensation for a reasonable offset for use shall be
paid by the consumer to the manufacturer in the event that a replacement
motor vehicle is elected. In the case of a lease where the consumer either
has no option to purchase the motor vehicle at the end of the lease term,
or the consumer has an option to purchase the motor vehicle at the end of
the lease term but does not exercise the option, the lessor shall refund
to the consumer the lesser of (A) the offset for use paid by the consumer
to the manufacturer at the time of delivery of the replacement vehicle, or
(B) the gain realized by the lessor by reason of the difference, if any,
between the anticipated residual value of the original motor vehicle as
determined at the inception of the lease and the realized value of the
replacement motor vehicle at the end of the lease. If the lessor does not
realize any gain from the disposition of the replacement vehicle, there
will be no refund due to the consumer from the lessor. The foregoing rules
apply only to leases where the consumer performs all of the consumer's
obligations under the lease agreement and the lease terminates upon the
scheduled expiration of the lease term as set forth in the lease agreement
or any mutually agreed upon extension of the lease term. The administrator
may provide by rule under Chapter 13 of Title 50, the "Georgia
Administrative Procedure Act," for determining the manner of calculating
the amount of any further charges or refunds that may apply in the case of
leases terminated prematurely either by the voluntary election of the
parties, or involuntarily by the lessor in the event of the lessee's
default, the loss or destruction of the vehicle, or for any other reason.
(4) When repurchasing the new motor vehicle,
the manufacturer shall refund to the consumer all collateral charges and
incidental costs. In the event of a repurchase, purchase price refunds
shall be made to the consumer and lienholder of record, if any, as his or
her interests may appear, less a reasonable offset for use. In the event
of a lease, purchase price refunds shall be made to the lessor, less a
reasonable offset for use. If it is determined that the lessee is entitled
to a refund, the consumer's lease agreement with the lessor shall be
terminated upon payment of the refund and no penalty for early termination
shall be assessed.
(b) A reasonable number of attempts shall be
presumed as a matter of law to have been undertaken by the manufacturer,
its agent, or the new motor vehicle dealer to repair or correct any
nonconformity of a new motor vehicle, if: (1) a serious safety defect in
the braking or steering system has been subject to repair at least once
during the lemon law rights period and has not been corrected; (2) during
any period of 24 months or less, or during any period in which the vehicle
has been driven 24,000 miles or less, whichever occurs first, any other
serious safety defect has been subject to repair two or more times, at
least one of which is during the lemon law rights period, and the
nonconformity continues to exist; (3) during any period of 24 months or
less or during any period in which the vehicle has been driven 24,000
miles or less, whichever occurs first, the same nonconformity has been
subject to repair, three or more times, at least one of which is during
the lemon law rights period, and the nonconformity continues to exist; or
(4) during any period of 24 months or less or during any period in which
the vehicle has been driven 24,000 miles or less, whichever occurs first,
the vehicle is out of service by reason of repair of one or more
nonconformities for a cumulative total of 30 calendar days, at least 15 of
them during the lemon law rights period. If less than 15 days remain under
the lemon law rights period when the new motor vehicle is first brought in
for diagnosis or repair, the lemon law rights period as regards the
problem to be diagnosed or repaired shall be extended for a period of 90
days.
(c) For purposes of this article, the lemon
law rights period regarding nonconformities on all new motor vehicles sold
in this state shall be for 12 months following the purchase of the vehicle
or for 12,000 miles following the purchase of the vehicle, whichever
occurs first.
(d) This article shall not create and shall
not give rise to any cause of action against and shall not impose any
liability upon any new motor vehicle dealer or distributor except as
provided in this Code section. No new motor vehicle dealer or distributor
shall be held liable by the manufacturer or by the consumer for any
collateral charges, damages, costs, purchase price refunds, or vehicle
replacements, and manufacturers and consumers shall not have a cause of
action against a new motor vehicle dealer or distributor under this
article. A violation of any duty or responsibility imposed upon a new
motor vehicle dealer or distributor under this article shall constitute a
per se violation of Code Section 10-1-393; provided, however, that
enforcement against such violations shall be by public enforcement by the
administrator and shall not be enforceable through private enforcement
under the provisions of Code Section 10-1-399, except that a knowing
violation of Code Section 10-1-785 shall be enforceable through private
enforcement under the provisions of Code Section 10-1-399.The provisions
of Code Sections 11-2-602 through 11-2-609 shall not apply to the sale of
a new motor vehicle if the consumer seeks to use the remedies provided for
in this article. A consumer shall be deemed to have used the remedies
provided for in this article when he or she completes, signs, and returns
forms prescribed by the administrator for the submission of disputes to an
informal dispute resolution settlement mechanism or to a panel, whichever
occurs first. Such forms shall contain a conspicuous statement clearly
advising the consumer of the rights the consumer is waiving by
participating in the procedures under this article. A consumer may not use
the remedies provided for in this article if the consumer has already
sought to use the remedies provided for in Code Sections 11-2-602 through
11-2-609, unless the nonconformity did not exist or was not known at the
time of using the remedies provided for in such Code sections.
Manufacturers and consumers may not make new motor vehicle dealers or
distributors parties to arbitration panel proceedings or any other
proceedings under this article. The provisions of this article shall not
impair any obligation under any manufacturer-dealer franchise agreement or
manufacturer-distributor agreement; provided, however, that any provision
of any manufacturer-dealer franchise agreement or manufacturer-distributor
agreement which attempts to shift any duty, obligation, responsibility, or
liability imposed upon a manufacturer by this article to a new motor
vehicle dealer or distributor, 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."
(Code 1981, § 10-1-784, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 94, § 10.)
10-1-785.
Resale of nonconforming vehicle.
(a) No manufacturer or other transferor shall
knowingly resell, either at wholesale or retail, lease, transfer a title,
or otherwise transfer, except to sell for scrap, any motor vehicle which
has been determined to have a serious safety defect by reason of a
determination, adjudication, or settlement decision pursuant to this
article or similar statute of any other state, unless the serious safety
defect has been corrected; the manufacturer warrants in writing upon the
resale, transfer, or lease that the defect has been corrected; and the
transferor provides the manufacturer's written warranty under this Code
section to the consumer.
(b) After replacement or repurchase pursuant
to this article of a motor vehicle with a nonconformity, other than a
serious safety defect, which has not been corrected, the manufacturer
shall notify the administrator, by certified mail, upon receipt of the
manufacturer's motor vehicle. If such nonconformity is corrected, the
manufacturer shall notify the administrator in the same manner of such
correction. if the two events described in this subsection occur within 30
days of one another, both notices may be combined into the same notice.
(c) Upon the resale, either at wholesale or
retail, lease, transfer of title, or other transfer of a motor vehicle
with a nonconformity, other than a serious safety defect, which has not
been corrected and which was previously returned after a final
determination, adjudication, or settlement under this article or under a
similar statute of any other state, the manufacturer shall execute and
deliver to the transferee before transfer to a consumer an instrument in
writing setting forth information identifying the nonconformity in a
manner to be specified by the administrator; the transferor shall deliver
the instrument to the consumer before transfer.
(d) Upon the resale, either at wholesale or
retail, lease, transfer of title, or other transfer of a motor vehicle
found to have a nonconformity under this article which has been corrected,
the manufacturer shall warrant in writing on forms prescribed by the
administrator upon the transfer that the nonconformity has been corrected,
and the manufacturer, its agent, the new motor vehicle dealer, or other
transferor shall execute and deliver to the transferee before transfer an
instrument in writing setting forth information identifying the
nonconformity and indicating in a manner to be specified by the
administrator that it has been corrected and providing an express
manufacturer's warranty on the vehicle regarding the nonconformity for 12
months or 12,000 miles, whichever occurs first.
(e) For purposes of this Code section, the
term "settlement" includes an agreement entered into between the
manufacturer and the consumer that occurs after the dispute has been
submitted to an informal dispute resolution settlement mechanism or has
been deemed eligible by the administrator for arbitration before a panel.
(Code 1981, § 10-1-785, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-786. New motor vehicle arbitration panel.
(a) As provided in Code Section 10-1-794, the
administrator may establish a new motor vehicle arbitration panel or
panels to settle disputes between consumers and manufacturers as provided
in this article. The panels shall not be affiliated with any manufacturer
or new motor vehicle dealer and shall have available the services of
persons with automotive technical expertise to assist in resolving
disputes under this article.
(b) The administrator may adopt rules under
Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for
the
uniform conduct of arbitrations by panels and by informal dispute
resolution settlement mechanisms under this article, which rules may
include, but not be limited to, the following:
(1) Procedures regarding presentation of oral
and written testimony, witnesses and evidence relevant to the dispute,
cross-examination of witnesses, and representation by counsel. The
administrator shall provide by rule for oral hearings, when appropriate,
in panel or informal dispute resolution settlement mechanism proceedings;
(2) Procedures for production of records and
documents requested by a party which the panel finds are reasonably
related to the dispute;
(3) Procedures for issuance of subpoenas on
behalf of the panel by the administrator, which shall be enforced by the
superior courts as in Code Section 10-1-398;
(4) Procedures regarding written affidavits
from employees and agents of a dealer, a manufacturer, any party, or from
other potential witnesses and the consideration of such affidavits by a
panel; and
(5) Records of panel proceedings and hearings
shall be open to the public.
(c) A consumer shall exhaust any certified
informal dispute resolution settlement procedure under Code Section
10-1-793 and the new motor vehicle arbitration panel remedy before filing
any superior court action pursuant to Code Section 10-1-788.
(d) The administrator may adopt rules under
Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," to
implement this article. Such rules may include uniform standards by which
the panel and any informal dispute resolution settlement mechanism under
Code Section 10-1-793 shall make determinations under this article,
including but not limited to rules which may provide for:
(1) Determining that a nonconformity exists;
(2) Determining that a reasonable number of
attempts to repair a nonconformity have been undertaken; or
(3) Determining that a manufacturer has
failed to comply with Code Section 10-1-784.
(Code 1981, § 10-1-786, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 94, § 10; Ga. L. 1996, p.
6, § 10.)
10-1-787. Arbitration procedure.
(a) A consumer shall request arbitration
under this article by submitting a request in writing to the
administrator. Except as otherwise provided in this article, disputes
under the lemon law rights period shall be eligible for arbitration. The
administrator shall make a reasonable determination of the eligibility of
the request for arbitration and may provide necessary information to the
consumer regarding the consumer's rights and remedies under this article.
The administrator may adopt rules under Chapter 13 of Title 50, the
"Georgia Administrative Procedure Act," regarding the eligibility of
requests for arbitration. The administrator shall assign a dispute he
deems eligible to a panel.
(b) Manufacturers shall submit to arbitration
under this article if the consumer's dispute is deemed eligible for
arbitration by the administrator and by the panel.
(c) The new motor vehicle arbitration panel
may reject for arbitration any dispute that it determines to be frivolous,
fraudulent, filed in bad faith, res judicata, or beyond its authority. Any
dispute deemed by the panel to be ineligible for arbitration due to
insufficient evidence may be reconsidered by the panel upon the submission
of other information or documents regarding the dispute that would
allegedly qualify for relief under this article. Following a second
review, the panel may reject the dispute for arbitration if evidence is
still clearly insufficient to qualify the dispute for relief under this
article. The administrator may adopt rules under Chapter 13 of Title 50,
the "Georgia Administrative Procedure Act," governing rejection of
disputes by a panel. A decision to reject any dispute for arbitration
shall be sent by certified mail, return receipt requested, to the consumer
and the manufacturer.
(d) An arbitration panel shall award the
remedies under Code Section 10-1-784 if it finds a nonconformity and that
a reasonable number of attempts have been undertaken to correct the
nonconformity. The panel may in its discretion award attorney's fees and
technical or expert witness costs to a consumer.
(e) It is an affirmative defense to any claim
under this article that: (1) the alleged nonconformity does not
substantially impair the use, value, or safety of the new motor vehicle to
the consumer; or (2) the alleged nonconformity is the result of abuse,
neglect, or unauthorized modifications or alterations of the new motor
vehicle.
(f) The panel's decision shall be sent by
certified mail, return receipt requested, to the consumer. The consumer
must reject the decision in writing by certified mail, return receipt
requested, addressed to the panel within 30 days of receipt of the panel's
decision, or he or she shall be deemed to have accepted the panel's
decision. The panel shall immediately notify the manufacturer by certified
mail, return receipt requested, whether the consumer has accepted,
rejected, or has been deemed to have accepted.
(g) Upon receipt of the panel's notice, the
manufacturer shall have 40 calendar days to comply with the arbitration
panel decision or to file a petition of appeal in superior court. At the
time the petition of appeal is filed, the manufacturer shall send, by
certified mail, a conformed copy of such petition to the administrator.
(h) If, at the end of the 40 calendar day
period, neither compliance with nor a petition to appeal the panel's
decision has occurred, the administrator may impose a fine of up to
$1,000.00 per day until compliance occurs or until a maximum penalty of
double the value of the vehicle or $100,000.00, whichever is less,
accrues. If the manufacturer can provide clear and convincing evidence
either that any delay or failure was beyond its control, or that any delay
was acceptable to the consumer, the fine shall not be imposed. If the
manufacturer fails to provide such evidence or fails to pay the fine, the
administrator may initiate proceedings against the manufacturer for
failure to pay any accrued fine and may initiate proceedings on behalf of
the state to require specific performance of an arbitration decision under
this article. The administrator shall deposit any fines in the state
treasury.
(Code 1981, § 10-1-787, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-788.
Appeal of arbitration decision.
(a) After the manufacturer has received
notice of the consumer's acceptance or rejection, the consumer or the
manufacturer shall have 40 days to request a trial de novo of the
arbitration decision in superior court.
(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 may include the monetary value of the award,
collateral charges, continuing incidental costs, if any, and attorney's
fees and costs.
(Code 1981, § 10-1-788, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-789.
Collection of consumer fee for operating arbitration program.
(a) Effective July 1, 1990, a fee of $3.00
shall be collected by the new motor vehicle dealer from the consumer at
completion of a sale or 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 first quarterly payments are due and payable on October 1, 1990, and
shall be mailed by the dealer not later than October 10; thereafter, all
payments are due and payable the first of the month in each quarter and
shall be mailed by the dealer not later than the tenth day of such month.
Moneys in the account shall be used for the purposes of this article,
subject to appropriation. Funds in the new motor vehicle arbitration
account shall be transferred to the general treasury at the end of each
fiscal year. One dollar of each fee collected shall be retained by the
dealer to cover administrative costs.
(b) At the end of each fiscal year, the
administrator shall prepare a report listing the annual revenue generated
and the expenses incurred in implementing and operating the arbitration
program under this chapter. The Office of Planning and Budget shall
provide the administrator with the figures regarding revenue generated.
(c) It is the intent of the General Assembly
that any consumer who, on or after July 1, 1990, but prior to January 1,
1991, pays or should have paid the fee designated in this Code section
shall be entitled to utilize the remedies provided in Code Sections
10-1-786, 10-1-787, and 10-1-788 in addition to any other remedies which
exist in law or in equity regarding defective automobiles, notwithstanding
the effective dates of this article or the effective dates of any
provisions of this article.
(Code 1981, § 10-1-789, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 604, § 1.)
10-1-790.
Violation of article.
A violation of this article, or any failure of any person, including a
manufacturer or its agents, to honor any express warranty, automotive or
otherwise, issued by that person, regardless of whether or not such
warranty was purchased as a separate item by the consumer and regardless
of whether or not any dispute under the warranty is deemed eligible for
arbitration under this article, shall constitute an unfair and deceptive
act or practice and a consumer transaction under Part 2 of Article 15 of
this chapter. In determining whether there is an unfair and deceptive act
or practice under this Code section, the principles in this article
regarding a reasonable number of attempts may serve as guidelines. All
public and private remedies provided under Part 2 of Article 15 of this
chapter shall be available to enforce this article, subject to the
affirmative defenses provided in Code Section 10-1-787, and except as
provided in Code Section 10-1-784.
(Code 1981, § 10-1-790, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 94, § 10.)
10-1-791. Waiver of rights under article as contrary to public
policy.
Any agreement entered into by a consumer for the purchase of a new motor
vehicle that waives, limits, or disclaims the rights set forth in this
article shall be void as contrary to public policy. Said rights shall
extend to a subsequent transferee of a new motor vehicle.
(Code 1981, § 10-1-791, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-792.
Other rights and remedies.
Nothing in this article shall limit anyone from pursuing other rights or
remedies under any other law, except as otherwise provided in this
article.
(Code 1981, § 10-1-792, enacted by
Ga. L. 1990, p. 1013, § 1.)
10-1-793.
Informal dispute resolution settlement mechanism.
(a) If a manufacturer has established an
informal dispute resolution settlement mechanism in this state and is
operating in accordance with rules promulgated by the administrator under
this article, and the administrator has certified that the informal
dispute resolution settlement procedure complies with and is operating in
accordance with such rules, a consumer must submit a dispute under this
article to the informal dispute resolution settlement procedure before
submitting it to the new motor vehicle arbitration panel. The
administrator may adopt rules consistent with this article under Chapter
13 of Title 50, the "Georgia Administrative Procedure Act," regarding the
informal dispute resolution settlement mechanisms, including but not
limited to the composition, function, training, procedures, and conduct of
informal dispute resolution settlement mechanisms and including
eligibility requirements and procedures for appeals to a panel. Such rules
must be complied with prior to certification.
(b) Informal dispute resolution settlement
mechanisms shall take into account the principles contained in this
article and in any rules promulgated thereunder 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, reimbursement for
collateral and incidental charges, and compensation for loss of value. For
purposes of this Code section, the phrase: "Take into account the
principles contained in 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) At any time the administrator has reason
to believe that a certified informal dispute resolution settlement
mechanism is not acting in conformity with this article or with rules
promulgated thereunder, he may initiate proceedings under Chapter 13 of
Title 50, the "Georgia Administrative Procedure Act," to revoke the
certification of the informal dispute resolution settlement mechanism. An
informal dispute resolution settlement mechanism shall keep such records
as prescribed by the administrator in rules under this article and shall
submit without notice to inspection and copying of these records by the
administrator's employees. Expenses of any copying shall be borne by the
informal dispute resolution settlement mechanism.
(Code 1981, § 10-1-793, enacted by
Ga. L. 1990, p. 1013, § 1; Ga. L.
1991, p. 94, § 10.)
10-1-794. Establishment and operation of arbitration panels;
panel membership; staff.
The new motor vehicle arbitration panel or panels shall begin operating on
January 2, 1991.The administrator in his discretion may establish and
operate the panel or panels under any of the following procedures,
provided that disputes filed during the same time period shall not be
handled under different procedures: (1) contracting with private or public
entities to conduct arbitrations under the
procedures and standards in
this article, (2) appointing private citizens to serve on a panel or
panels, or (3) hiring temporary or permanent employees to serve on the
panel or panels. Each new motor vehicle arbitration panel shall consist of
three members, none of whom may be directly or indirectly involved in the
manufacture, distribution, sale, or service of any motor vehicle or
employed by or related to the consumer. All panel members shall have a
degree from an American Bar Association Accredited School of Law or shall
have at least two years' experience in professional arbitration. Any
private citizens appointed by the administrator to serve as panel members
shall be reimbursed for expenses as are members of the General Assembly
and shall be compensated at an hourly rate as determined by the
administrator. Temporary or permanent employees hired to serve on the
panels shall be in the unclassified service and may serve on a full or
part-time basis at a salary determined by the administrator. 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.
(Code 1981, § 10-1-794, enacted by
Ga. L. 1990, p. 1013, § 1.)
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