H. B. 4664
(By Delegate Shook)
[Introduced
February 22, 2010
; 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 required
mediation in consumer protection matters; defining terms;
tolling of the statute of limitations during mediation and
providing time frames for commencement of mediation.
Be it enacted by the Legislature of West Virginia:
That §46A-6-102 and §46-6-106 of the Code of West Virginia,
1931, as amended, 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:
(1) "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.
(2) "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.
(3) "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.
(4) "Mediation" means a method of alternative dispute
resolution in which a neutral third person helps resolve a dispute.
Mediation is an informal, nonadversarial process whereby the
neutral third person, the mediator, assists parties to a dispute to
resolve, by agreement, some or all of the difference between them.
The mediator has not authority to render a judgment on any issue of
the dispute.
(4) (5) "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.
(5) (6) "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.
(6) (7) "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.
(7) (8) "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:
(A) Passing off goods or services as those of another;
(B) Causing likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or
services;
(C) Causing likelihood of confusion or of misunderstanding as
to affiliation, connection or association with or certification by
another;
(D) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(E) 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 or
she does not have;
(F) Representing that goods are original or new if they are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand;
(G) 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;
(H) Disparaging the goods, services or business of another by
false or misleading representation of fact;
(I) Advertising goods or services with intent not to sell them
as advertised;
(J) Advertising goods or services with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(K) Making false or misleading statements of fact concerning
the reasons for, existence of or amounts of price reductions;
(L) Engaging in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding;
(M) 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;
(N) 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;
(O) 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
(P) Violating any provision or requirement of article six-b of
this chapter.
(8) (9) "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.
(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 or her 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 $200,
whichever is greater. The court may, in its discretion, provide
such equitable relief as it deems necessary or proper.
(b) Prior to the commencement of any civil action provided in
subsection (a), the court shall order the parties to participate in
mediation. Mediation shall commence within sixty days of the
demand. All parties are required during the mediation to disclose
all relevant documents. Any applicable statute of limitations is
tolled from the date that a mediation demand is made and shall
recommence within fourteen days after the conclusion of the
mediation.
(b) (c) 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, 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) (d) 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) (e) Any applicable statute of limitations shall be tolled
for the twenty-day period set forth in subsection
(b) (c) of this
section or for the period of time the effectuation of the cure offer
is being performed, whichever is longer.
(e) (f) 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.
(f) (g) 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 pursuant to the
provisions of this section that the respondent used or employed a
method, act or practice declared unlawful by section one hundred
four of this article.
(g) (h) Where an action is brought pursuant to the provisions
of this section, it shall be a complete 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.
(h) (i) No cure offer shall be admissible in any proceeding
initiated pursuant to the provisions of this article unless the cure
offer is delivered by a seller or lessor to the person claiming loss
or to any attorney representing such person prior to the filing of
the seller or lessee's initial responsive pleading in such
proceeding. If the cure offer is timely delivered by the seller or
lessor, then the seller or lessee may introduce the cure offer into
evidence at trial. The seller or lessor shall not be liable for
such person's attorney's fees and court costs incurred following delivery of the cure offer unless the actual damages found to have
been sustained and awarded, without consideration of attorney's fees
and court costs, exceed the value of the cure offer.
NOTE: The purpose of this bill is to require mediation in
consumer protection matters. It further provides the tolling of the
statute of limitations during mediation and providing time frames
for commencement of mediation.
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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