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Montana Lemon Law
Montana
Code Annotated, 61-4-501 to 61-4-526
61-4-501.
Definitions.
For
purposes of this part, the following
definitions apply:
(1)
"Collateral charge" means all
governmental charges, including but not
limited to sales tax, property tax, license
and registration fees, and fees in lieu of
tax.
(2)
"Consumer" means the purchaser,
other than for purposes of resale, of a motor
vehicle that has not been brought into
nonconformity as the result of abuse,
neglect, or unauthorized modifications or
alterations by the purchaser, any person to
whom the motor vehicle is transferred during
the duration of an express warranty
applicable to the motor vehicle, or any other
person entitled by the terms of the warranty
to the benefits of its provisions.
(3)
"Incidental damage" means
incidental and consequential damage as
defined in 30-2-715.
(4)
"Manufacturer" has the meaning
applied to that word in 61-4-201.
(5)
"Motor vehicle" means a vehicle,
including the nonresidential portion of a
motor home as defined in 61-1-130, propelled
by its own power, designed primarily to
transport persons or property upon the public
highways, and sold in this state. The term
does not include a truck with 10,000 pounds
or more gross vehicle weight rating or a
motorcycle as defined in 61-1-105. Motor
vehicle does not include components, systems,
fixtures, appliances, furnishings,
accessories, and features that are designed,
used, and maintained primarily for
residential purposes.
(6)
"Reasonable allowance for use" is
an amount directly attributable to use of the
motor vehicle by the consumer and any
previous consumers prior to the first written
notice of the nonconformity to the
manufacturer or its agent and during any
subsequent period when the vehicle is not out
of service because of nonconformity. The
reasonable allowance for use shall be
computed by multiplying the total contract
price of the vehicle by a fraction having as
its denominator 100,000 and having as its
numerator the number of miles that the
vehicle traveled prior to the manufacturer's
acceptance of its return.
(7)
"Warranty period" means the period
ending 2 years after the date of the original
delivery to the consumer of a new motor
vehicle or during the first 18,000 miles of
operation, whichever is earlier.
61-4-502.
Notice -- warranty enforceable after warranty
period
(1)
If a consumer notifies in writing the
manufacturer or its agent during the warranty
period that a new motor vehicle does not
conform to all applicable express warranties,
the repairs necessary to conform the new
motor vehicle to the express warranties shall
be made by or at the expense of the
warrantor, regardless of the expiration of
the warranty period after notification of
nonconformity is given by the consumer.
(2)
The warranty period of an express warranty is
extended to equal the time that repair
services are not available because of war or
invasion or because of strike or fire, flood,
or other natural disaster. The presumption
provided herein may not apply against a
manufacturer who has not received prior
written notification from or on behalf of the
consumer and has not had an opportunity to
cure the alleged defect.
(3)
The manufacturer must clearly and
conspicuously disclose to the consumer in the
warranty or owner's manual that written
notification of a nonconformity is required
before a consumer may be eligible for a
refund or replacement of the vehicle. The
manufacturer must include with the warranty
or owner's manual the name and address where
the written notification must be sent.
61-4-503.
Replacement for nonconformity to warranty.
(1)
If after a reasonable number of attempts the
manufacturer or its agent or authorized
dealer is unable, during the warranty period,
to conform the new motor vehicle to any
applicable express warranty by repairing or
correcting any defect or condition that
substantially impairs the use and market
value or safety of the motor vehicle to the
consumer, the manufacturer shall replace it
with a new motor vehicle of the same model
and style and of equal value, unless for
reasons of lack of availability such
replacement is impossible, in which case the
manufacturer shall replace it with a vehicle
of comparable market value.
(2)
As an alternative to replacement, the
manufacturer may accept return of the new
motor vehicle from the consumer upon refund
to him of the full purchase price, plus
reasonable collateral charges and incidental
damages, less a reasonable allowance for the
consumer's use of the motor vehicle. The
refund shall be paid to the consumer and to a
lien holder, if any, in proportion to their
interests.
61-4-504.
Reasonable number of attempts -- presumption.
A
reasonable number of attempts to conform a
new motor vehicle to the applicable express
warranties is presumed to have been made for
purposes of 61-4-503(1) if:
(1)
the same nonconformity has been subject to
repair four or more times by the manufacturer
or its agent or authorized dealer during the
warranty period but the nonconformity
continues to exist; or
(2)
the vehicle is out of service because of
nonconformity for a cumulative total of 30 or
more business days during the warranty period
after notification of the manufacturer,
agent, or dealer.
61-4-505.
Dealer exemption -- liability to
manufacturer.
(1)
Nothing in this part imposes any liability on
a dealer or creates a cause of action by a
consumer against a dealer under 61-4-503.
(2)
A dealer is not liable to a manufacturer for
any refunds or vehicle replacements in the
absence of evidence indicating that repairs
made by the dealer were carried out in a
manner inconsistent with the manufacturer's
instructions.
61-4-506.
Provisions nonexclusive.
(1)
The provisions of this part do not limit the
rights or remedies available to a consumer
under any other law.
(2)
All express warranties arising from the sale
of a new motor vehicle are subject to the
provisions of Title 30, chapter 2, part 3.
(3)
It is an affirmative defense to a claim
brought under this part that an alleged
nonconformity does not substantially impair
the use, market value, or safety of the
vehicle or that the nonconformity is the
result of abuse, neglect, or unauthorized
modification or alteration of a motor vehicle
by the consumer.
61-4-507.
Exhaustion of remedies under federal law.
The
provisions of 61-4-503 are not applicable
against a manufacturer who has established an
informal dispute settlement procedure
certified by the department of commerce to be
in substantial compliance with the provisions
of Title 16, Code of Federal Regulations,
part 703, as those provisions read on October
1, 1983, unless the consumer has first
resorted to that procedure without
satisfaction.
61-4-511.
Manufacturer's dispute settlement procedure.
(1)
A manufacturer who has established an
informal dispute settlement procedure under
the provisions of Title 16, Code of Federal
Regulations, part 703 (16 CFR, part 703), as
those provisions read on October 1, 1983,
shall submit a copy of the procedure to the
department of commerce. The department of
commerce shall issue a certificate of
approval to a manufacturer whose procedure
complies in all respects with such federal
regulations and subsection (2). The
department of commerce shall report to the
department of justice all manufacturer's
procedures certified. The department of
commerce may issue subpoenas requiring the
attendance of witnesses and the production of
records, documents, or other evidence
necessary to it in an investigation related
to the certification of a manufacturer's
informal dispute settlement procedure.
(2)
A manufacturer's informal dispute settlement
procedure must afford the consumer or his
representative an opportunity to appear and
present evidence in Montana at a location
reasonably convenient to the consumer and,
further, may not include any practices that:
(a)
delay a decision in any dispute beyond 60
days after the date on which the consumer
initially resorts to the dispute settlement
procedure;
(b)
delay performance of remedies awarded in a
settlement beyond 10 days after a decision,
except that a manufacturer may have 30 days
following the date of decision to replace a
motor vehicle or make refund to the consumer
as provided in 61-4-503;
(c)
require the consumer to make the vehicle
available for inspection by a manufacturer's
representative more than once;
(d)
fail to consider in decisions any remedies
provided by this part; or
(e)
require the consumer to take any action or
assume any obligation not specifically
authorized under the federal regulations
referred to in subsection (1).
61-4-512.
Annual audit
(1)
A manufacturer establishing an informal
dispute resolution procedure shall file with
the department of commerce a copy of the
annual audit required under Title 16, Code of
Federal Regulations, part 703 (16 CFR, part
703), as those provisions read on October 1,
1983, along with any additional information
the department of commerce may require,
including the number of refunds and
replacements made by the manufacturer during
the period audited.
(2)
The department of commerce may, after notice
and hearing as provided in Title 2, chapter
4, suspend or revoke the certification of a
manufacturer's informal dispute resolution
procedure upon a finding that the procedure
is being used to create hardship to
consumers. The department of commerce shall
notify the department of justice of any
revocation or suspension of a certification.
The department of justice may consider the
revocation or suspension in licensing
manufacturers under Title 61, chapter 4, part
2.
61-4-515.
Arbitration procedure.
(1)
The department of commerce shall provide an
independent forum and arbitration procedure
for the settlement of disputes between
consumers and manufacturers of motor vehicles
that do not conform to all applicable
warranties under the provisions of this part.
The procedure must conform to Title 27,
chapter 5. All arbitration shall take place
in Montana at a place reasonably convenient
to the consumer.
(2)
Except as provided in 61-4-520, a consumer
owning a motor vehicle that fails to conform
to all applicable warranties may bring a
grievance before an arbitration panel only if
the manufacturer of the motor vehicle has not
established an informal dispute settlement
procedure which has been certified by the
department of commerce under 61-4-511.
61-4-516.
Composition of arbitration panel.
An
arbitration panel hearing a grievance under
this part must consist of three members. One
member must be chosen by the consumer, one
member must be chosen by the manufacturer,
and one member must be chosen by mutual
agreement of the parties. The department of
commerce may maintain a list of persons
willing to serve on panels from which the
third member may be chosen.
61-4-517.
Implementation of arbitration.
(1)
A consumer may initiate a request for
arbitration by filing a notice with the
department of commerce. The consumer shall
file, on a form prescribed by the department
of commerce, any information considered
relevant to the resolution of the dispute and
shall return the form, along with a $50
filing fee, within 5 days after receiving it.
The complaint form must offer the consumer
the choice of presenting any subsequent
testimony orally or in writing, but not both.
(2)
The department of commerce shall determine
whether the complaint alleges the violation
of any applicable warranty under this part.
If the department of commerce determines that
a complaint does not allege a warranty
violation, it must refund the filing fee.
(3)
Upon acceptance of a complaint, the
department of commerce shall notify the
manufacturer of the filing of a request for
arbitration and shall obtain from the
manufacturer, on a form prescribed by the
department of commerce, any information
considered relevant to the resolution of the
dispute. The manufacturer must return the
form within 15 days of receipt, with a filing
fee of $250.
(4)
Fees collected under this section shall be
deposited in a special revenue fund for the
use of the department of commerce in
administering this part.
(5)
The manufacturer's fee provided in subsection
(3) is due only if the department of commerce
arbitration procedures are utilized.
61-4-518.
Arbitration
(1)
The department of commerce shall investigate,
gather, and organize all information
necessary for a fair and timely decision in
each dispute. The department of commerce may,
on behalf of the arbitration panel, issue
subpoenas to compel the attendance of
witnesses and the production of documents,
papers, and records relevant to the dispute.
(2)
If requested by the panel, the department of
commerce may forward a copy of all written
testimony and documentary evidence to an
independent technical expert certified by the
national institute of automotive excellence.
The expert may review the material and be
available to advise and consult with the
panel. The expert may sit as a nonvoting
member of the panel whenever oral testimony
is presented. The department of justice may
suggest an expert at the request of the
department of commerce.
61-4-519.
Action by arbitration panel
(1)
The arbitration panel shall, as expeditiously
as possible, but not later than 60 days after
the department of commerce has accepted a
complaint, render a fair decision based on
the information gathered and disclose its
findings and its reasoning to the parties.
(2)
The decision shall provide appropriate
remedies, including but not limited to:
(a)
repair of the vehicle;
(b)
replacement of the vehicle with an identical
vehicle or a comparable vehicle acceptable to
the consumer;
(c)
refund as provided in 61-4-503(2);
(d)
any other remedies available under the
applicable warranties or 15 U.S.C. 2301
through 2312, as in effect on October 1,
1983; or
(e)
reimbursement of expenses and costs to the
prevailing party.
(3)
The decision shall specify a date for
performance and completion of all awarded
remedies. The department of commerce shall
contact the prevailing party within 10
working days after the date for performance
to determine whether performance has
occurred. The parties shall act in good faith
in abiding by any decision. In addition, if
the decision is not accepted, the parties
shall follow the provisions of Title 27,
chapter 5. If it is determined by the court
that the appellant has acted without good
cause in bringing an appeal of an award, the
court, in its discretion, may grant to the
respondent his costs and reasonable attorney
fees.
61-4-520.
Nonconforming procedure.
A
consumer injured by the operation of any
procedure that does not conform with
procedures established by a manufacturer
pursuant to 61-4-511 and the provisions of
Title 16, Code of Federal Regulations, part
703, as in effect on October 1, 1983, may
appeal any decision rendered as the result of
such a procedure by requesting arbitration de
novo of the dispute by a department of
commerce panel. Filing procedures and fees
for appeals must be the same as those
required in 61-4-515 through 61-4-517. The
findings of the manufacturer's informal
dispute settlement procedure are admissible
in evidence at the department of commerce
arbitration panel hearing and in any civil
action arising out of any warranty obligation
or matter related to the dispute.
61-4-525.
Notice on resale of replaced vehicle.
A
motor vehicle which is returned to the
manufacturer and which requires replacement
or refund may not be sold in the state
without a clear and conspicuous written
disclosure of the fact that the vehicle was
returned. The department of justice may
prescribe by rule the form and content of the
disclosure statement and a procedure by which
the disclosure may be removed upon a
determination that the vehicle is no longer
defective.
61-4-526.
Records of disputes.
The
department of commerce shall maintain records
of each dispute as it determines, including
an index of disputes by brand name and model.
The department of commerce shall, at
intervals of no more than 6 months, compile
and maintain statistics indicating the record
of compliance with arbitration decisions and
the number of refunds or replacements
awarded. A copy of the statistical summary
must be filed with the department of justice
and must be considered by it in determining
the issuance of any manufacturer license
required under Title 61, chapter 4, part 2.
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