§ 6-1-404 — Remedies

(1) If a new wheelchair does not conform to the
applicable express warranty and the consumer reports the nonconformity to the
manufacturer, the lessor, the selling dealer, or the alternative warranty service
provider, and makes the wheelchair available for repair within the warranty period,
the nonconformity shall be repaired at no charge to the consumer. Any repairs
performed pursuant to the provisions of this section shall be warranted for a period
not less than the original warranty period. When the wheelchair is not safely
moveable and there is no reasonable way for the consumer to deliver the
wheelchair to the manufacturer or dealer, the manufacturer or dealer shall be
responsible for the return of the wheelchair, or the wheelchair may be repaired on
site at the option of the dealer.

(2) If the manufacturer authorizes the dealer or lessor to make the repair, the
dealer or lessor shall make the repair and then be reimbursed by the manufacturer
for the dealer's or lessor's cost for parts, labor, and repair if the nonconformity is a
manufacturer's defect. A manufacturer shall respond to the dealer's or lessor's
request for authorization to make a repair by the end of the business day that
immediately follows the day such a request is made.

(3) When a wheelchair covered by an express warranty is tendered by a
consumer to the manufacturer, selling dealer, alternative warranty service provider,
or lessor for the repair of a defect, malfunction, or nonconformity to which the
warranty is applicable, the consumer shall receive a loaner if the out-of-service
period exceeds one day and shall keep the loaner until the requirements of section
6-1-405 or 6-1-406 are fulfilled. If the required loaner is not a standard wheelchair,
the manufacturer or dealer shall make a good faith effort to make available
alternative equipment that is usable by the consumer. The cost of the loaner shall
be borne by the entity responsible for the defect requiring the repair or
replacement of the wheelchair as provided in this section. The consumer shall have
the duty to care for the loaner properly and to protect against any damage to the
chair.

(4) If a nonconformity is not repaired after a reasonable attempt to repair,
the manufacturer or dealer who originally supplied or modified the wheelchair, as
required by this section, shall:

(a) If the wheelchair was purchased, take the following action at the
direction of the consumer:

(I) Accept a return of the wheelchair, provide a replacement wheelchair of
equal or greater value, and refund any collateral costs to the consumer, a holder of
a perfected security interest in the wheelchair, or a third-party purchaser; or

(II) Accept a return of the wheelchair and refund to the consumer, holder of a
perfected security interest in the wheelchair, or third-party purchaser not more
than the full purchase price plus any finance charge, sales tax, shipping costs, and
collateral costs paid;

(b) If the wheelchair was leased, take all of the following actions at the
direction of the consumer:

(I) Accept a return of the wheelchair;

(II) (A) Refund to the lessor and any holder of a perfected security interest in
the wheelchair the current value of the written lease.

(B) For purposes of this subparagraph (II), current value of the written
lease means the sum of the total amount for which the consumer is obligated
during the term of the lease remaining after the early termination date, the dealer's
early termination costs, and the value of the wheelchair on the lease expiration
date, if the lease sets forth that value, less the lessor's early termination savings.

(III) Refund to the consumer or third-party purchaser the amount paid under
the lease plus any collateral costs.

(5) (a) In the event that a dispute arises as to liability under this part 4
between or among a manufacturer, dealer, lessor, or consumer, and the consumer is
covered by any third-party insurer, such third-party insurer shall not be relieved of
any obligation to provide benefits covered under its plan or applicable law.

(b) In the event that a wheelchair is found to be defective, the third-party
payor described in paragraph (a) of this subsection (5) shall have all rights of
recovery, including the right to costs, that the consumer would have had under this
part 4.

Legislative History

Source: L. 97: Entire part added, p. 608, � 1, effective July 1.