Section 5001 - Definitions.
As used in this chapter:
(1). "Consumer" means the purchaser, other than
for purposes of resale, of an
automobile; a person to whom an automobile is transferred
during the
duration of an express warranty applicable to the
automobile; or any other
person entitled by the terms of the warranty to enforce
the obligations of
the warranty.
(2). "Dealer" means a person actively engaged in
the business of buying, selling
or exchanging automobiles at retail and who has an
established place of
business.
(3). "Manufacturer" means a person engaged in
the business of manufacturing,
assembling or distributing automobiles, who will, under
normal business
conditions during the year, manufacture, assemble or
distribute to dealers at
least 10 new automobiles.
(4). "Manufacturer's express warranty" or
"warranty" means the written
warranty of the manufacturer of a new automobile of its
condition and
fitness for use, including any terms or conditions
precedent to the
enforcement of obligations under that warranty.
(5) "Automobile" means any passenger motor
vehicle, except motorcycles,
which is leased or bought in Delaware or registered by the
Division of
Motor Vehicles in the Department of Public Safety except
the living
facilities of motor homes.
(6). "Nonconformity" means a defect or condition
which substantially impairs
the use, value or safety of an automobile.
(7). "Lien" means a security interest in an
automobile.
(8). "Lienholder" means a person with a security
interest in an automobile
pursuant to a lien.
Section 5002 - Duty to repair nonconforming
automobiles.
If a new automobile does not conform to the manufacturer's
express warranty, and
the consumer reports the nonconformity to the manufacturer
or its agent or dealer during
the term of the warranty or during the period of 1 year
following the date of original
delivery of an automobile to the consumer, whichever is
earlier, the manufacturer shall
make, or arrange with its dealer or agent to make, within
a reasonable period of time, all
repairs necessary to conform the new automobile to the
warranty, notwithstanding that
the repairs or corrections are made after the expiration
of the term of the warranty or the
1-year period.
Section 5003 - Remedies upon failure to repair.
(a). If the manufacturer, its agent or its authorized
dealer does not conform the
automobile to any applicable express warranty by repairing
or correcting
any nonconformity after a reasonable number of attempts,
the manufacturer
shall either replace the automobile with a comparable new
automobile
acceptable to the consumer or repurchase the automobile
from the
consumer and refund to the consumer the full purchase,
including all
credits and allowances for any trade-in vehicle; provided,
however, that the
consumer shall have the unqualified right to decline a
replacement
automobile and to demand instead a repurchase.
(b). In instances in which an automobile is replaced by a
manufacturer under
this section, said manufacturer shall accept return of the
automobile and
reimburse the consumer for any incidental costs, including
dealer
preparation fees, fees for transfer of registration, sales
taxes or other
charges or fees incurred by the consumer as a result of
such replacement. In
instances in which an automobile which was financed by the
manufacturer
or its subsidiary or agent is replaced under this section,
said manufacturer,
subsidiary or agent shall not require the consumer to
enter into any
refinancing agreement for a replacement automobile which
would create
any financial obligations upon such consumer beyond those
created by the
original financing agreement.
(c). In instances in which a refund is tendered under this
section, the
manufacturer shall accept return of the automobile from
the consumer and
shall reimburse the consumer for related purchase costs,
including sales
taxes, registration fees and dealer preparation fees,
less:
(1). A reasonable allowance for the consumer's use of the
automobile,
not to exceed the full purchase price of the automobile
multiplied by
a fraction which consists of the number of miles driven
before the
consumer first reported the nonconformity to the
manufacturer, its
agent or dealer divided by 100,000 miles; and
(2). A reasonable allowance for damage not attributable to
normal wear
and tear, but not to include damage resulting from a
nonconformity.
(d). Refunds shall be made to the consumer, and lienholder,
if any, as their
interests may appear.
(e). No authorized dealer shall be held liable by the
manufacturer for any
refunds or automobile replacements in the absence of
evidence indicating
that dealership repairs have been carried out in a manner
inconsistent with
the manufacturer's instructions.
Section 5004 - Presumptions.
(a). It shall be presumed that a reasonable number of
attempts have been
undertaken to conform a new automobile to the
manufacturer's express
warranty if, within the warranty term or during the period
of 1 year
following the date of original delivery of the motor
vehicle to a consumer,
whichever is the earlier date:
(1). Substantially the same nonconformity has been subject
to repair or
correction 4 or more times by the manufacturer, its agents
or its
dealers and the nonconformity continues to exist; or
(2). The automobile is out of service by reason of repair
or correction of
a nonconformity by the manufacturer, its agents or its
dealers for a
cumulative total of more than 30 calendar days since the
original
delivery of the motor vehicle to the consumer. This 30-day
limit
shall commence with the first day on which the consumer
presents
the automobile to the manufacturer, its agent or dealer
for service of
the nonconformity and a written document describing the
nonconformity is prepared by the manufacturer, its agent
or dealer.
The 30-day limit shall be extended only if repairs cannot
be
performed due to conditions beyond the control of the
manufacturer,
its agents or its dealers, including war, invasion,
strike, fire, flood or
other natural disaster.
(b). The presumption provided in this section shall not
apply against a
manufacturer unless the manufacturer has received prior
direct written
notification from or on behalf of the consumer and has had
an opportunity
to repair or correct the nonconformity; provided, however,
that if the
manufacturer does not directly attempt or arrange with its
dealer or agent to
repair or correct the nonconformity, the manufacturer may
not defend a
claim by a consumer under this chapter on the ground that
the agent or
dealer failed to properly repair or correct the
nonconformity or that the
repairs or corrections made by the agent or dealer caused
or contributed to
the nonconformity.
Section 5005 - Costs and attorney's fees in breach of
warranty actions.
In any court action brought under this chapter by a
consumer against the
manufacturer of an automobile, or the manufacturer's agent
or authorized dealer, based
upon the alleged breach of an express warranty made in
connection with the sale of such
automobile, the court, in its discretion, may award the
plaintiff's costs and reasonable
attorney's fees or, if the court determines that the
action is brought in bad faith or is
frivolous in nature, may award reasonable attorney's fees
to the defendant.
Section 5006 - Affirmative defense to claim.
It shall be an affirmative defense to a claim under this
chapter that the alleged
nonconformity does not substantially impair the use, value
or safety of the new
automobile or that the nonconformity is the result of
abuse or neglect or of unauthorized
modifications or alterations of the new automobile by
anyone other than the
manufacturer, its agent or dealer.
Section 5007 - Informal dispute settlement procedure.
(a). If a manufacturer has established an informal
settlement procedure that has
a certificate of approval by the Division of Consumer
Protection, the
remedies provided by this chapter shall not be available
to any consumer
who has not first resorted to such procedure. In the event
a manufacturer's
informal dispute settlement procedure does not have a
certificate of
approval from the Division of Consumer Protection, a
consumer may
immediately and directly seek the remedies provided by
this chapter.
(b). The Division of Consumer Protection shall annually
evaluate the operation
of informal dispute settlement procedures established by
manufacturers and
shall issue an annual certificate of approval to those
manufacturers whose
procedures comply with Title 16, Code of Federal
Regulations, Part 703
and with subsections (c), (d) and (e) of this section. The
Division of
Consumer Protection shall suspend the certification of, or
decertify, any
informal dispute settlement which no longer complies with
said provisions.
(c). Any manufacturer who has established an informal
settlement procedure
shall file with the Division of Consumer Protection a copy
of each decision
of the informal dispute settlement procedure within 30
days after the
decision is rendered.
(d). In order to obtain the certification of the Division
of Consumer Protection,
a manufacturer's informal dispute settlement procedure
shall not convene
any informal dispute settlement hearing or meeting outside
the State and
shall refrain from any practices which:
(1). Delay a decision in any dispute beyond 65 days after
the date on
which the consumer initially resorts to the informal
dispute
settlement procedure by written notification that a
dispute exists; or
(2). Delay performance of remedies awarded in a settlement
beyond 30
days after receipt of notice of the consumer's acceptance
of the
decision; provided, however, that such time limits shall
not include
periods of time when the consumer or the consumer's car is
unavailable for the remedies specified in the settlement;
or
(3). Require the consumer to make the automobile available
more than
once for inspection by a manufacturer's representative or
more than
once for repair of the same nonconformity; or
(4). Fail to consider in decisions any remedies provided
by this chapter,
such remedies to include:
(1) Repair, replacement and refund;
(2) Reimbursement for related purchase costs; or
(5). Require the consumer to take any action or assume any
obligation
not specifically authorized under the provisions of Title
16, Code of
Federal Regulations, Part 703.
(e). A manufacturer desiring annual certification of an
informal dispute
settlement procedure shall make application to the
Division of Consumer
Protection on forms developed by, and shall provide such
information as
required by, the Division of Consumer Protection.
Section 5008 - Remedies cumulative.
Nothing in this chapter shall in any way limit the rights
or remedies available to a
consumer under Subtitle I of this title.
Section 5009 - Enforcement.
In addition to any remedies the consumer may have at law
or in equity, a violation
of this chapter shall be an unlawful practice as defined
in Section 2513 of this title. The
Division of Consumer Protection shall promulgate rules and
regulations in order to
implement the purposes of this chapter. unauthorized work.
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These pamphlets are for general information purposes only.
In order to receive a free copy or if you have a consumer
concern, call the Attorney General's Consumer Protection
Unit.
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