HB 139

Section 1

This act shall be known and may be cited as the New Assistive Devices Warranty Act.

Section 2

For purposes of this act, the following terms shall have the following meanings: (1) ASSISTIVE DEVICE. a. Any device, costing five hundred dollars ($500) five thousand dollars ($5,000) or more, including a demonstrator, that a consumer purchases or accepts transfer of in this state which is used for a major life activity. The term includes, but is not limited to, all of the following: which is used for a major life activity. The term is limited to the following: a. 1. Manual wheelchairs, motorized wheelchairs, motorized scooters, and other aids that enhance the mobility of an individual. b. Hearing aids, telephone communication devices for the deaf, assistive listening devices, and other aids that enhance the ability to hear of an individual. c. 2. Voice synthesized computer modules, optical scanners, talking software, Braille printers, and other devices that enhance the ability of a sight impaired individual to communicate. b. The term does not include hearing aids, telephone communication devices for the deaf, assistive listening devices, or other aids that enhance the ability of an individual to hear. (2) ASSISTIVE DEVICE DEALER. A person who is in the business of selling assistive devices. (3) ASSISTIVE DEVICE LESSOR. A person who leases assistive devices to consumers, or who holds the rights of a lessor, under a written lease. Any assistive device lessor who is also an assistive device dealer shall fulfill all obligations owed to the consumer pursuant to this act as both an assistive device dealer and lessor. (4) COLLATERAL COSTS. Expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of sales tax and of obtaining an alternative assistive device. (5) CONSUMER or THE AGENCY. Any of the following: a. The purchaser of an assistive device, including government entities purchasing a device for the benefit of an individual and the individual for whose benefit the device is purchased, if the assistive device was purchased from an assistive device dealer or manufacturer for purposes other than resale. b. A person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive device. c. A person who may enforce the warranty. d. A person who leases an assistive device from an assistive device lessor under a written lease. e. Any person, with authority, acting on behalf of the consumer or the agency. (6) DEMONSTRATOR. An assistive device used primarily for the purpose of demonstration to the public.

Section 3

(a) If an assistive device covered by an applicable express warranty exhibits a nonconformity, the consumer or the agency shall do both of the following: (1) Report the nonconformity to the manufacturer, the assistive device lessor, or any of the authorized assistive device dealers of the manufacturer. (2) Make the assistive device available for repair within an applicable express warranty period. (b) Once a nonconformity is reported and the assistive device is made available for repair, the manufacturer, the assistive device lessor, or any of the authorized assistive device dealers of the manufacturer shall make an attempt to repair the nonconformity.

Section 4

(a) If the manufacturer, dealer, or lessor either refuses to accept a device which a consumer makes available for repairs or makes a reasonable attempt to repair, but the nonconformity is not actually repaired, the manufacturer shall be required to provide a refund or replacement of the device, whichever is requested by the consumer or the agency, as follows: (1) If the consumer or the agency requests a refund for a device which was purchased, the manufacturer shall refund to the consumer and to any holder of a perfected security interest in the assistive device of the consumer, as their interest may appear, the full purchase price plus any finance charge or sales tax paid by the consumer at the point of sale and any collateral costs incurred by the consumer, less a reasonable allowance for use. When the manufacturer provides the refund, the consumer or the agency shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer. (2) If the consumer or the agency requests a refund for a device which was leased, the manufacturer shall refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use. The manufacturer shall have a cause of action against the dealer or lessor for reimbursement of any amount that it pays to a consumer which exceeds the net price received by the manufacturer for the assistive device. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer. (3) If the consumer elects to receive a comparable new assistive device, the manufacturer shall provide the consumer or the agency with the comparable new assistive device no later than 30 days after the consumer or lessor offers to transfer possession of the assistive device having the nonconformity to the manufacturer. (b) This section regarding the duty of a manufacturer shall apply for the period of the express warranty of the manufacturer.

Section 5

This act does not apply to either any of the following: (1) Disposable assistive devices with a useful life of one year or less. (2) Batteries or nonfunctional accessories. (3) Assistive devices dispensed, sold, injected, or implanted by a licensed physician, licensed physician assistant, or any individual working with or for the practice of a licensed physician, employer, or other business entity that is primarily engaged in the practice of medicine, whether or not the individual is working in a collaborative practice agreement as an agent, employee, or independent contractor. The exemption provided by this subdivision shall not apply to an assistive device simply because it was prescribed or ordered by a licensed physician or other health care practitioner.

Section 6

(a) This act shall not limit rights or remedies available to a consumer under any other law. (b) Any waiver of rights by a consumer under this act shall be void. (c) In addition to pursuing any other remedy, a consumer may bring an action to recover any damages caused by a violation of this act within one year of the violation. The court shall award a consumer who prevails in such an action no more than twice the amount of any pecuniary loss, together a violation of this act within four years after the cause of action has accrued. By the original agreement, the parties may reduce the period of limitation to not less than one year but may not extend the period of limitation. The court may award a consumer who prevails up to treble damages, together with costs, disbursements, and reasonable attorney fees, and any equitable relief that the court determines is appropriate.

Section 7

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law. House of Representatives Read for the first time and re- ferred to the House of Representa- tives committee on Commerce and Small Business..................... ....... 09-JAN-18Read for the second time and placed on the calendar 3 amendments ..... ....... 25-JAN-18 Read for the third time and passed as amended......................... ....... 01-MAR-18 Yeas 97, Nays 0, Abstains Jeff Woodard Clerk