H. B. 2886
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced March 4, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6-102 and §46A-6-106 of the Code
of West Virginia, 1931, as amended, all relating to cure
offers; providing definitions; requiring notice of violation
prior to initiation of law suits; tolling of statute of
limitation during sixty-day period for consideration of cure
offer proposal; and limiting recovery to attorney's fees.
Be it enacted by the Legislature of West Virginia:
That §46A-6-102 and §46A-6-106
of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-102. Definitions.
When used in this article the following words, terms and
phrases, and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where the
context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or circulation of any matter, oral or written, including labeling,
which tends to induce, directly or indirectly, any person to enter
into any obligation, sign any contract, or acquire any title or
interest in any goods or services and includes every word device to
disguise any form of business solicitation by using such terms as
"renewal", "invoice", "bill", "statement" or "reminder", to create
an impression of existing obligation when there is none, or other
language to mislead any person in relation to any sought-after
commercial transaction.
(b) "Consumer" means a natural person to whom a sale or lease
is made in a consumer transaction, and a "consumer transaction"
means a sale or lease to a natural person or persons for a
personal, family, household or agricultural purpose.
(c) "Cure offer" means a written offer of one or more things
of value, including but not limited to the payment of money, that
is made by a merchant or seller and that is delivered by certified
mail to a consumer claiming to have suffered a loss as a result of
a consumer transaction or to the attorney for such person. A cure
offer shall be reasonably calculated to remedy a loss claimed by
the consumer.
(c) (d) "Merchantable" means, in addition to the qualities
prescribed in section three hundred fourteen, article two, chapter
forty-six of this code, that the goods conform in all material
respects to applicable state and federal statutes and regulations
establishing standards of quality and safety of goods and, in the
case of goods with mechanical, electrical or thermal components, that the goods are in good working order and will operate properly
in normal usage for a reasonable period of time.
(d) (e) "Sale" includes any sale, offer for sale or attempt to
sell any goods for cash or credit or any services or offer for
services for cash or credit.
(e) (f) "Trade" or "commerce" means the advertising, offering
for sale, sale or distribution of any goods or services and shall
include any trade or commerce, directly or indirectly, affecting
the people of this state.
(f) (g) "Unfair methods of competition and unfair or deceptive
acts or practices" means and includes, but is not limited to, any
one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or
services;
(3) Causing likelihood of confusion or of misunderstanding as
to affiliation, connection or association with, or certification by
another;
(4) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities that they do not have, or that a person has a
sponsorship, approval, status, affiliation or connection that he
does not have;
(6) Representing that goods are original or new if they are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand;
(7) Representing that goods or services are of a particular
standard, quality or grade, or that goods are of a particular style
or model, if they are of another;
(8) Disparaging the goods, services or business of another by
false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them
as advertised;
(10) Advertising goods or services with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning
the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any
deception, fraud, false pretense, false promise or
misrepresentation, or the concealment, suppression or omission of
any material fact with intent that others rely upon such
concealment, suppression or omission, in connection with the sale
or advertisement of any goods or services, whether or not any
person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing,
distributing or broadcasting, or causing to be advertised, printed, displayed, published, distributed or broadcast in any manner, any
statement or representation with regard to the sale of goods or the
extension of consumer credit including the rates, terms or
conditions for the sale of such goods or the extension of such
credit, which is false, misleading, or deceptive, or which omits to
state material information which is necessary to make the
statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a
group of prizes or any other thing of value, if receipt of the
prize or thing of value is contingent upon any payment of a service
charge, mailing charge, handling charge or any other similar charge
by the person or upon mandatory attendance by the person at a
promotion or sales presentation at the seller's place of business
or any other location: Provided, That a person may be offered one
item or the choice of several items conditioned on the person
listening to a sales promotion or entering a consumer transaction
if the true retail value and an accurate description of the item or
items are clearly and conspicuously disclosed along with the
person's obligations upon accepting the item or items; such
description and disclosure shall be typewritten or printed in at
least eight point regular type, in upper or lower case, where
appropriate; or
(16) Violating any provision or requirement of article six-b
of this chapter.
(g)(h) "Warranty" means express and implied warranties
described and defined in sections three hundred thirteen, three hundred fourteen and three hundred fifteen, article two, chapter
forty-six of this code and expressions or actions of a merchant
which assure the consumer that the goods have described qualities
or will perform in a described manner.
§46A-6-106. Actions by consumers.
(1)(a) Any person who purchases or leases goods or services
and thereby suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment by another
person of a method, act or practice prohibited or declared to be
unlawful by the provisions of this article, may bring an action in
the circuit court of the county in which the seller or lessor
resides or has his principal place of business or is doing
business, or as provided for in sections one and two, article one,
chapter fifty-six of this code, to recover actual damages or two
hundred dollars, whichever is greater. The court may, in its
discretion, provide such equitable relief as it deems necessary or
proper.
(b) Notwithstanding the provisions of subsection (a) of this
section, no action may be brought pursuant to the provisions of
this section until the consumer has informed the seller or lessor
in writing and by certified mail of the alleged violation and
provided the seller or lessor twenty days from receipt of the
notice of violation to make a cure offer: Provided further, That
the consumer shall have ten days from receipt of the cure offer to
accept the cure offer or it is deemed refused and withdrawn.
(c) If a cure offer is accepted, the seller or lessor shall have ten days to begin effectuating the agreed upon cure and such
must be completed within a reasonable time.
(d) Any applicable statute of limitations shall be tolled for
the twenty-day period set forth in subsection (b) of this section
or for the period of time the effectuation of the cure offer is
being performed, whichever is longer.
(e) Nothing in this section shall be construed to prevent a
consumer that has accepted a cure offer from bringing a civil
action against a seller or lessor for failing to timely effect such
cure offer.
(2)(f) Any permanent injunction, judgment or order of the
court under section one hundred eight, article seven of this
chapter for a violation of section one hundred four of this article
shall be prima facie evidence in an action brought under this
section one hundred six pursuant to the provisions of this section
that the respondent used or employed a method, act or practice
declared unlawful by said section one hundred four of this article.
(g) Where an action is brought pursuant to the provisions of
this section, it shall be an affirmative defense that a cure offer
was made, accepted and the agreed upon cure was performed. If the
finder of fact determines that the cure offer was accepted and the
agreed upon cure performed, the seller or lessor shall be entitled
to reasonable attorney's fees and costs attendant to defending the
action.
NOTE: The purpose of this bill is to create a requirement that consumers provide notice of alleged violations of article six
of chapter forty-six-a to a seller or lessor before bringing an
action under the provisions of this section. It also creates a
right to cure for the lessor or seller, tolls the statute of
limitations until any such cure has been performed, and allows for
the recovery of attorney's fees by lessors and sellers in certain
instances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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