|
Delaware
Lemon Law
Delaware
Code Annotated, Title 6, §§ 5001-5009
§
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.
§
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.
§
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.
§
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.
§
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 to
the plaintiff his 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.
§
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.
§
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:
a.
Repair, replacement and refund;
b. 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.
§
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.
§
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 § 2513 of this title. The
Division of Consumer Protection shall
promulgate rules and regulations in order to
implement the purposes of this chapter.
|
