§ 107 — Customized wheelchairs; nonconformity with warrant; rights and remedies

Section 107. (A) As used in this section the following words shall have the following meanings unless the context clearly indicates otherwise:—''Collateral costs'', expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative wheelchair or other assistive device for mobility.''Consumer'', (1) the purchaser of a customized wheelchair if such wheelchair was purchased from a customized wheelchair dealer or manufacturer for purposes other than resale; (2) a person to whom the customized wheelchair is transferred for purposes other than resale, if such transfer occurs before the expiration of an express warranty applicable to such wheelchair; (3) a person who may enforce the warranty; or (4) a person who leases a customized wheelchair from a customized wheelchair lessor under a written lease.''Customized wheelchair'', a manual or motorized wheeled device which is adapted to meet the specific needs of a particular individual's disability, excluding an automobile, van or truck which a consumer purchases or accepts for transfer in the commonwealth.''Customized wheelchair dealer'', a person in the business of selling customized wheelchairs.''Customized wheelchair lessor'', a person who leases a customized wheelchair to a consumer or who holds the lessor's rights under a written lease.''Early termination cost'', an expense or obligation incurred by a customized wheelchair lessor as a result of both the termination of a written lease before the termination date set forth in such lease and the return of a customized wheelchair to a manufacturer pursuant to paragraph (c) of subsection (2) of subdivision (C). Early termination cost shall include a penalty for prepayment under a finance arrangement.''Early termination savings'', an expense or obligation avoided by a customized wheelchair lessor as a result of both the termination of a written lease before the termination date set forth in such lease and the return of a customized wheelchair to a manufacturer pursuant to said paragraph (c) of said subsection (2) of said subdivision (C). Early termination saving shall include interest charges that a customized wheelchair lessor would have paid to finance the customized wheelchair or, if the customized wheelchair was not financed, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of such amount at the date of the early termination.''Manufacturer'', a person or his agent who manufactures or assembles customized wheelchairs, including an importer, distributor, factory branch, distributor branch and warrantors of the manufacturer's customized wheelchair; provided, however, that ''manufacturer'' shall not include a customized wheelchair dealer.''Nonconformity'', a condition or defect that substantially impairs the use, value or safety of a customized wheelchair and which is covered by an express warranty applicable to the customized wheelchair or to a component of the customized wheelchair; ''nonconformity'' shall include a condition or defect which results from abuse, neglect or the unauthorized modification or alteration of the customized wheelchair by a consumer.''Reasonable attempt to repair'', any of the following occurring within the term of an express warranty period applicable to a new customized wheelchair within one year after delivery of the customized wheelchair to a consumer, whichever occurs first:(1) a nonconformity within the warranty is subject to repair at least four times by the manufacturer, customized wheelchair lessor, or any of the manufacturer's authorized dealers and the nonconformity continues, or(2) the customized wheelchair is out of service for an aggregate of at least thirty days because of a warranty nonconformity.(B) A manufacturer who sells a customized wheelchair to a consumer, either directly or through a customized wheelchair dealer, shall furnish the consumer with an express warranty for the customized wheelchair. The duration of the express warranty shall be not less than one year after first delivery of the customized wheelchair to the consumer. In the absence of an express warranty from the manufacturer, the manufacturer shall be deemed to have expressly warranted to the consumer that, for a period of one year from the date of first delivery to such consumer, the customized wheelchair shall be free from any condition or defect which substantially impairs the use value or safety of the customized wheelchair.(C)(1) If a new customized wheelchair does not conform to an applicable express warranty and the consumer reports such nonconformity to the manufacturer, to a customized wheelchair lessor or to an authorized customized wheelchair dealer and such consumer makes the customized wheelchair available for repair prior to the expiration of one year from the date of first delivery, the nonconformity shall be repaired at no charge to the consumer.(2)(a) If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out the requirements set forth in paragraph (b) or (c), whichever is appropriate.(b) At the direction of a consumer other than one who leases a customized wheelchair, the manufacturer shall:(i) accept return of the customized wheelchair and replace it with a comparable new customized wheelchair and refund any collateral costs; or(ii) accept return of the customized wheelchair and refund to the consumer and to any holder of a perfected security interest, as their interest may appear, the full purchase price and any finance charge amount paid by the consumer at the point of sale and any collateral costs, less a reasonable allowance for use. A reasonable allowance for use shall not exceed the amount obtained by multiplying the full purchase price of the customized wheelchair by a fraction, the denominator of which shall be one thousand eight hundred and twenty-five and the numerator of which shall be the number of days that the customized wheelchair was in the consumer's possession before the consumer first reported the nonconformity to the customized wheelchair dealer.(c) At the direction of a consumer who leases a customized wheelchair, the manufacturer shall accept return of the customized wheelchair, refund to the customized wheelchair lessor and to any holder of a perfected security interest, as their interest may appear, the current value of the written lease and refund to the consumer the amount such consumer paid under the written lease and any collateral costs, less a reasonable allowance for use. A reasonable allowance for use shall not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which shall be one thousand eight hundred and twenty-five and the numerator of which shall be the number of days that the consumer possessed the customized wheelchair before first reporting the nonconformity to the manufacturer, customized wheelchair lessor or customized wheelchair dealer.The current value of the written lease shall be the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the customized wheelchair dealer's early termination costs and the value of the customized wheelchair at the lease expiration date if the lease sets forth that value, less the customized wheelchair lessor's early termination savings.(3) In order to receive a comparable new customized wheelchair or a refund due under paragraph (b) of subsection (2), a consumer described thereunder shall offer to the manufacturer of the customized wheelchair having the nonconformity to transfer possession of that customized wheelchair to that manufacturer. No later than thirty days after such offer, the manufacturer shall provide the consumer with the comparable new customized wheelchair or refund. When the manufacturer provides the new customized wheelchair or refund, the consumer shall return the customized wheelchair having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer.(4)(1) In order to receive a refund due under paragraph (c) of subsection (2), a consumer described thereunder shall offer to return the customized wheelchair having the nonconformity to its manufacturer. Not later than thirty days after such offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the customized wheelchair having the nonconformity.(2) To receive a refund due under paragraph (c) of subsection (2), a customized wheelchair lessor shall offer to transfer possession of the customized wheelchair having the nonconformity to its manufacturer. No later than thirty days after such offer, the manufacturer shall provide the refund to the customized wheelchair lessor. When the manufacturer provides the refund, the customized wheelchair lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.(3) No person may enforce the lease against the consumer after he receives a refund due under paragraph (c) of subsection (2).[There is no subparagraph (4).](5) No customized wheelchair returned by a consumer or customized wheelchair lessor in the commonwealth or by a consumer or customized wheelchair lessor in another state under a similar law of that state, may be resold or leased in the commonwealth unless full disclosure of the reasons for such return has been made to a prospective buyer or lessee.(D) Each consumer shall have the option of submitting any dispute arising under this section, upon the payment of a prescribed filing fee, to an alternate arbitration mechanism established pursuant to regulations promulgated hereunder by the secretary of the executive office of consumer affairs and business regulation. Upon application of the consumer and payment of the appropriate filing fee, all manufacturers shall submit to such alternative arbitration. Such alternate arbitration shall be conducted by a professional arbitrator or arbitration firm appointed by and under regulations established by the attorney general. Such mechanism shall ensure the personal objectivity of its arbitrators and the right of each party to present its case, to be in attendance during any presentation made by the other party and to rebut or refute such presentation.(E) Nothing contained in this section shall be deemed to limit any rights or remedies available to a consumer under any other law. Any waiver by a consumer of rights under this section shall be void.(F) In addition to pursuing any other remedy, a consumer may bring an action to recover for damages caused by a violation of this section. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief that the court deems is appropriate.