75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1395
A-Engrossed
Senate Bill 515
Ordered by the Senate May 5
Including Senate Amendments dated May 5
Sponsored by Senator BONAMICI; Senators DINGFELDER, HASS, MORSE,
PROZANSKI, ROSENBAUM, Representatives GILLIAM, HOLVEY, TOMEI
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Changes period in which remedy is available to consumer for
motor vehicle that does not conform to manufacturer's warranty.
{ + Allows remedy in specified circumstances if nonconformity
is likely to cause death or serious bodily injury. + }
{ - Removes requirement that consumer must offer manufacturer
opportunity to cure after notifying manufacturer of
nonconformity. - } Specifies charges that are refundable if
consumer returns motor vehicle to manufacturer for refund or
replacement. Specifies calculation for determining consumer's
reasonable use of motor vehicle in period before consumer returns
motor vehicle to manufacturer. { + Requires manufacturer or
authorized dealer of manufacturer to provide consumer with
statement setting forth specified information for purpose of
determining reasonable use. + } Requires disclosure of reason
consumer returned motor vehicle to manufacturer in subsequent
sale, lease or transfer of motor vehicle. Provides that failure
to make disclosure is subject to enforcement as unlawful trade
practice.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to warranties on motor vehicles; creating new
provisions; amending ORS 646.608, 646A.400, 646A.402, 646A.404,
646A.406, 646A.408, 646A.412, 646A.414 and 646A.416; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646A.400 is amended to read:
646A.400. As used in ORS 646A.400 to 646A.418:
{ + (1) 'Collateral charge' means a charge, fee or cost to
the consumer related to the sale or lease of a motor vehicle,
such as:
(a) A sales, property or use tax;
(b) A license, registration or title fee;
(c) A finance charge;
(d) A prepayment penalty;
(e) A charge for undercoating, rustproofing or factory or
dealer installed options; and
(f) The cost of an aftermarket item purchased within 20 days
after delivery of the motor vehicle. + }
{ - (1) - } { + (2) + } 'Consumer' means:
(a) The purchaser or lessee, other than for purposes of resale,
of a new motor vehicle normally used for personal, family or
household purposes;
(b) Any person to whom a new motor vehicle used for personal,
family or household purposes is transferred for the same purposes
during the duration of an express warranty applicable to such
motor vehicle; and
(c) Any other person entitled by the terms of such warranty to
enforce the obligations of the warranty.
{ + (3)(a) 'Motor home' means a motor vehicle that is a new
or demonstrator vehicular unit built on, or permanently attached
to, a self-propelled motor vehicle chassis, chassis cab or van
that becomes an integral part of the completed vehicle, and that
is designed to provide temporary living quarters for
recreational, camping or travel use.
(b) 'Motor home' does not include a trailer, camper, van or
vehicle manufactured by an entity that primarily manufactures
motor vehicles other than motor homes as defined in this
subsection. + }
{ - (2) - } { + (4) + } 'Motor vehicle' means a passenger
motor vehicle as defined in ORS 801.360 { + that is purchased in
this state or is purchased outside this state but registered in
this state + }.
SECTION 2. ORS 646A.402 is amended to read:
646A.402. The remedy under the provisions of ORS 646A.400 to
646A.418 is available to a consumer if:
(1) A new motor vehicle does not conform to applicable
manufacturer's express warranties;
(2) The consumer reports each nonconformity to the
manufacturer, { - its - } { + the manufacturer's + } agent or
{ - its - } { + the manufacturer's + } authorized dealer, for
the purpose of repair or correction, during the { + two-year + }
period { - of one year - } following the date of original
delivery of the motor vehicle to the consumer or during the
period ending on the date on which the mileage on the motor
vehicle reaches { - 12,000 - } { + 24,000 + } miles,
whichever period ends
{ - earlier - } { + first + }; and
(3) The manufacturer has received direct written notification
from or on behalf of the consumer and has had an opportunity to
correct the alleged defect. 'Notification' under this subsection
includes, but is not limited to, a request by the consumer for an
informal dispute settlement procedure under ORS 646A.408.
SECTION 3. ORS 646A.404 is amended to read:
646A.404. (1) If the manufacturer or { - its - } agents or
authorized dealers { + of the manufacturer + } are unable to
conform the motor vehicle to { - any - } { + an + }
applicable manufacturer's express warranty by repairing or
correcting { - any - } { + a + } defect or condition that
substantially impairs the use, market value or safety of the
motor vehicle to the consumer after a reasonable number of
attempts, the manufacturer shall:
(a) Replace the motor vehicle with a new motor vehicle; or
(b) Accept return of the vehicle from the consumer and refund
to the consumer the full purchase or lease price { + and
collateral charges + } paid, { - including taxes, license and
registration fees and any similar collateral charges excluding
interest, - } less a reasonable allowance for the consumer's use
of the { + motor + } vehicle. { + In lieu of refunding, as
part of the collateral charges paid, the cost of an aftermarket
item purchased within 20 days after delivery of the motor
vehicle, the manufacturer may remove the aftermarket item from
the motor vehicle, if the aftermarket item can be removed from
the motor vehicle without damage, and return the aftermarket item
to the consumer. + }
(2) Refunds { - shall - } { + must + } be made to the
consumer and lienholder, if any, as { - their - } { + the + }
interests { + of the consumer and lienholder + } may appear.
{ - A reasonable allowance for use is that amount directly
attributable to use by the consumer prior to the first report of
the nonconformity to the manufacturer, agent or dealer and during
any subsequent period when the vehicle is not out of service by
reason of repair. - }
{ + (3)(a) As used in this section, 'reasonable allowance for
the consumer's use of the motor vehicle' means:
(A) For a motor vehicle that is not a motorcycle or a motor
home, an amount of money equivalent to the motor vehicle mileage
as described in paragraph (b) of this subsection multiplied by
the cash price or lease price of the motor vehicle and divided by
120,000.
(B) For a motorcycle, an amount of money equivalent to the
motor vehicle mileage as described in paragraph (b) of this
subsection, multiplied by the cash price or lease price of the
motorcycle and divided by 25,000.
(C) For a motor home, an amount of money equivalent to the
motor vehicle mileage as described in paragraph (b) of this
subsection, multiplied by the cash price or lease price of the
motor home and divided by 90,000.
(b) Except as provided in subsection (5) of this section, the
motor vehicle mileage for the purposes of the calculation
described in paragraph (a) of this subsection is the motor
vehicle's mileage at the time the manufacturer takes an action
described in subsection (1) of this section, less mileage that
the motor vehicle traveled during any period in which the
consumer did not have use of the motor vehicle because the
manufacturer or an agent or authorized dealer of the manufacturer
was repairing the motor vehicle.
(4) For purposes of determining the mileage that a motor
vehicle traveled during the period described in subsection (3)(b)
of this section, the manufacturer or an agent or authorized
dealer of the manufacturer shall provide the consumer with an
itemized, legible statement that sets forth:
(a) The odometer reading on the date on which the consumer
presented the motor vehicle to the manufacturer or an agent or
authorized dealer of the manufacturer for repair;
(b) The date and odometer reading on the date the manufacturer
or an agent or authorized dealer of the manufacturer completed
the repair; and
(c) The approximate length of any test drives the manufacturer
or an agent or authorized dealer of the manufacturer conducted
during the repair period.
(5) If a manufacturer or an agent or authorized dealer of the
manufacturer fails to provide a consumer with the statement
described in subsection (4) of this section, the motor vehicle
mileage for the purpose of the calculation described in
subsection (3)(a) of this section is the motor vehicle's mileage
at the time the consumer first presents the motor vehicle to the
manufacturer or an agent or authorized dealer of the manufacturer
for correction of a nonconformity. + }
{ - (3) - } { + (6) + } It { - shall be - } { + is + }
an affirmative defense to { - any - } { + a + } claim under
ORS 646A.400 to 646A.418 { + that + }:
(a) { - That - } An alleged nonconformity does not
substantially impair such use, market value or safety; or
(b) { - That - } A nonconformity is the result of abuse,
neglect or unauthorized modifications or alterations of the motor
vehicle by the consumer.
SECTION 4. ORS 646A.406 is amended to read:
646A.406. (1) It { - shall be - } { + is + } presumed that
a reasonable number of attempts have been undertaken to conform a
motor vehicle to the applicable manufacturer's express warranties
if, during the { + two-year + } period { - of one year - }
following the date of original delivery of the motor vehicle to a
consumer or during the period ending on the date on which the
mileage on the motor vehicle reaches { - 12,000 - } { +
24,000 + } miles, whichever period ends { - earlier - } { +
first + }:
{ - (a) The same nonconformity has been subject to repair or
correction four or more times by the manufacturer or its agent or
authorized dealer, but such nonconformity continues to exist;
or - }
{ - (b) The vehicle is out of service by reason of repair or
correction for a cumulative total of 30 or more business
days. - }
{ + (a) The manufacturer or an agent or authorized dealer of
the manufacturer has subjected the nonconformity to repair or
correction three or more times and has made a final attempt to
repair or correct the nonconformity, but the nonconformity
continues to exist;
(b) The motor vehicle is out of service by reason of repair or
correction for a cumulative total of 30 or more calendar days or
60 or more calendar days if the vehicle is a motor home; or
(c) The manufacturer or an agent or authorized dealer of the
manufacturer has subjected a nonconformity that is likely to
cause death or serious bodily injury to repair or correction at
least one time and has made a final attempt to repair or correct
the nonconformity, but the nonconformity continues to exist. + }
(2) A repair or correction for purposes of subsection (1) of
this section includes a repair that must take place after the
expiration of the earlier of either period.
(3) The period ending on the date on which the mileage on the
motor vehicle reaches { - 12,000 - } { + 24,000 + } miles,
the { - one-year - } { + two-year + } period and the 30-day
period shall be extended by any period of time during which
repair services are not available to the consumer because of a
war, invasion, strike, fire, flood or other natural disaster.
(4) { - In no event shall - } The presumption described in
subsection (1) of this section { + does 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 cure the defect alleged.
SECTION 5. ORS 646A.408 is amended to read:
646A.408. { - If the manufacturer has established or
participates in an informal dispute settlement procedure that
substantially complies with the provisions of 16 C.F.R. part 703,
as from time to time amended, and causes the consumer to be
notified of the procedure, ORS 646A.404 concerning refunds or
replacement shall not apply to any consumer who has not first
resorted to the procedure. A decision resulting from arbitration
pursuant to the informal dispute settlement procedure shall be
binding on the manufacturer. - } { + If a manufacturer, for the
purpose of settling disputes that arise under ORS 646A.400 to
646A.418, establishes or participates in an informal dispute
settlement procedure that substantially complies with the
provisions of 16 C.F.R. part 703, as in effect on the effective
date of this 2009 Act, and causes a consumer to be notified of
the procedure, ORS 646A.404 does not apply to a consumer who has
not first resorted to the procedure. A decision resulting from
arbitration pursuant to the informal dispute settlement procedure
is binding on the manufacturer but is not binding on the
consumer. + }
SECTION 6. ORS 646A.412 is amended to read:
646A.412. (1) If a consumer brings an action in court under ORS
646A.400 to 646A.418 against a manufacturer and the consumer is
granted one of the remedies specified in ORS 646A.404 (1) by the
court, the consumer shall also be awarded up to three times the
amount of any damages, not to exceed $50,000 over and above the
amount due the consumer under ORS 646A.404 (1), if the court
finds that the manufacturer did not act in good faith.
(2) The court may award reasonable attorney fees { - to the
prevailing party - } { + , fees for expert witnesses and costs
to a consumer who prevails + }in an appeal or action under
{ - this section. - } { + ORS 646A.400 to 646A.418. If a court
finds that a consumer brought an action under ORS 646A.400 to
646A.418 in bad faith or solely for the purposes of harassment,
the court may award a prevailing manufacturer reasonable attorney
fees. + }
SECTION 7. ORS 646A.414 is amended to read:
646A.414. (1) { + Except as provided in section 10 of this
2009 Act, + }nothing in ORS 646A.400 to 646A.418 creates a cause
of action by a consumer against a vehicle dealer.
(2) A manufacturer may not join a dealer as a party in
{ - any - } { + a + } proceeding brought under ORS 646A.400 to
646A.418, nor may the manufacturer try to collect from a dealer
{ - any - } damages assessed against the manufacturer in a
proceeding brought under ORS 646A.400 to 646A.418.
SECTION 8. ORS 646A.416 is amended to read:
646A.416. { - Any action brought under ORS 646A.400 to
646A.418 shall be commenced within one year following whichever
period ends earlier: - } { + An action brought under ORS
646A.400 to 646A.418 must be commenced within one year after
whichever of the following periods ends earlier: + }
(1) The period ending on the date on which the mileage on the
motor vehicle reaches { - 12,000 - } { + 24,000 + } miles;
{ - or - }
(2) The { + two-year + } period { - of one year - }
following the date of the original delivery of the motor vehicle
to the consumer { - . - } { + ; or
(3) The period that ends after an extension of time provided
under ORS 646A.406 (3). + }
SECTION 9. { + Section 10 of this 2009 Act is added to and
made a part of ORS 646A.400 to 646A.418. + }
SECTION 10. { + (1) A manufacturer that takes an action with
respect to a motor vehicle under ORS 646A.404 (1)(a) or (b) shall
request the Department of Transportation to:
(a) Title the motor vehicle in the manufacturer's name; and
(b) Inscribe on the certificate of title for the motor vehicle
and in the department's records concerning the motor vehicle the
notation 'Lemon Law Buyback. '
(2) A person that acquires a motor vehicle in order to sell,
lease or otherwise transfer the motor vehicle and that knows or
should have known that the manufacturer took an action with
respect to the motor vehicle under ORS 646A.404 (1)(a) or (b) or
that the certificate of title for the motor vehicle is inscribed
with the notation specified in subsection (1) of this section,
before selling, leasing or otherwise transferring the motor
vehicle shall:
(a) Provide the buyer, lessee or transferee with a notice that
states: + }
________________________________________________________________
{ + This vehicle was repurchased by its manufacturer in
accordance with Oregon's consumer warranty law because of a
defect in the vehicle. The title to this vehicle has been
permanently inscribed with the notation 'Lemon Law Buyback.' + }
________________________________________________________________
{ + (b) Obtain the signature of the buyer, lessee or
transferee on the notice in a space provided for that purpose
under a statement in which the buyer, lessee or transferee
acknowledges receiving and understanding the notice.
(3) Failure to comply with the requirements of subsection (1)
or (2) of this section is an unlawful practice under ORS 646.608
and a person that fails to comply with the requirements is
subject to the causes of action and remedies provided in ORS
646.632 and 646.638.
(4) The Director of Transportation may adopt rules to prescribe
the form and content of the notice required under this section
and to require the disclosure of other information the director
deems necessary to inform a buyer, lessee or transferee of the
condition of a motor vehicle that is subject to the provisions of
this section or information that is otherwise material to a sale,
lease or transfer of the motor vehicle. + }
SECTION 11. ORS 646.608, as amended by section 8, chapter 19,
Oregon Laws 2008, and section 5, chapter 31, Oregon Laws 2008, is
amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646A.020.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646A.142.
(ii) Violates ORS 646A.360.
(jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
(mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646A.210 or 646A.214.
(oo) Violates any provision of ORS 646A.124 to 646A.134.
(pp) Violates ORS 646A.254.
(qq) Violates ORS 646A.095.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646A.090 (2) to (4).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646A.362.
(yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(zz) Violates ORS 180.440 (1).
(aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(bbb) Violates ORS 87.007 (2) or (3).
(ccc) Violates ORS 92.405 (1), (2) or (3).
(ddd) Engages in an unlawful practice under ORS 646.648.
(eee) Violates ORS 646A.365.
(fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(ggg) Sells a gift card in violation of ORS 646A.276.
(hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
(iii) Violates ORS 646A.430 to 646A.450.
(jjj) Violates a provision of sections 2 to 6, chapter 19,
Oregon Laws 2008.
(kkk) Violates section 2, chapter 31, Oregon Laws 2008, 30 or
more days after a recall notice, warning or declaration described
in section 2, chapter 31, Oregon Laws 2008, is issued for the
children's product, as defined in section 1, chapter 31, Oregon
Laws 2008, that is the subject of the violation.
{ + (LLL) Violates a provision of section 10 of this 2009
Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
SECTION 12. { + (1) Section 10 of this 2009 Act and the
amendments to ORS 646.608, 646A.400, 646A.402, 646A.404,
646A.406, 646A.408, 646A.412, 646A.414 and 646A.416 by sections 1
to 8 and 11 of this 2009 Act become operative 90 days following
the effective date of this 2009 Act.
(2) The Director of Transportation may take any action before
the operative date specified in subsection (1) of this section
that is necessary to enable the director to exercise, on and
after the operative date specified in subsection (1) of this
section, all the duties, functions and powers conferred on the
director by section 10 of this 2009 Act and the amendments to ORS
646.608, 646A.400, 646A.402, 646A.404, 646A.406, 646A.408,
646A.412, 646A.414 and 646A.416 by sections 1 to 8 and 11 of this
2009 Act.
(3) Section 10 of this 2009 Act and the amendments to ORS
646.608, 646A.400, 646A.402, 646A.404, 646A.406, 646A.408,
646A.412, 646A.414 and 646A.416 by sections 1 to 8 and 11 of this
2009 Act apply to express warranties on new motor vehicles that
are sold, leased or otherwise transferred on or after the
operative date specified in subsection (1) of this section. + }
SECTION 13. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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