Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version - Originating in Committee Senate Bill 735 History

OTHER VERSIONS  -  Enrolled Version - Final Version  |  Engrossed Version  |  DOWNLOAD  wpd  |  Email


sb735 org
Senate Bill No. 735

(By Senators Oliverio, White, Edgell, Foster, Harrison, Hunter, Lanham, Love and Prezioso)

____________

[Originating in the Committee on Labor;


reported March 23, 2005.]

_____________


A BILL to amend and reenact §17A-6A-7 of the Code of West Virginia, 1931, as amended, all relating to cancellation of a motor vehicle agreement; notice of cancellation of motor vehicle agreement; right of motor vehicle dealer to contest cancellation; grounds for contest of cancellation; effect of agreement pending judicial contest; stay of termination proceedings; conditions permitting cancellation; and effect on motor vehicle agreement of transfer of ownership.

Be it enacted by the Legislature of West Virginia:
That §17A-6A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
§17A-6A-7. Notice provisions.
Notwithstanding any agreement, prior to the termination, cancellation, nonrenewal or discontinuance of any dealer agreement, the manufacturer or distributor shall furnish notice of the termination, cancellation, nonrenewal or discontinuance to the new motor vehicle dealer as follows:
(a) Except as otherwise provided in subdivision (c) or (d) this subsection section, notice shall be made not less than one hundred twenty days prior to the effective date of the termination, cancellation, nonrenewal or discontinuance.
(b) Notice shall be by certified mail with restrictive delivery to the new motor vehicle dealer principal and shall contain the following:
(i) (1) A statement of intention to terminate, cancel, not renew or discontinue the dealer agreement;
(ii) (2) A detailed written statement of all reasons for the termination, cancellation, nonrenewal or discontinuance. The statement shall include, at a minimum, a complete explanation of each reason upon which the manufacturer or distributor relies to support its proposed action, along with all supporting documentation which is material to the proposed action and available to the manufacturer or distributor at the time of termination, cancellation, nonrenewal or discontinuance; and
(iii) (3) The date on which the termination, cancellation, nonrenewal or discontinuance takes effect.
(c) Notwithstanding subdivision (a) of this subsection, notice shall be made not less than thirty days prior to the effective date of the termination, cancellation, nonrenewal or discontinuance for any of the following reasons:
(i) (1) Insolvency of the new motor vehicle dealer or the filing of any petition by or against the new motor vehicle dealer under any bankruptcy or receivership law;
(ii) (2) Failure of the new motor vehicle dealer to conduct his or her customary sales and service operations during his or her customary business hours for seven consecutive business days;
(iii) (3) Conviction of the new motor vehicle dealer or its principal owners of a crime, but only if the crime is punishable by imprisonment in excess of one year under the law under which the dealer was convicted or the crime involved theft, dishonesty or false statement regardless of the punishment;
(iv) (4) Revocation of a motor vehicle dealership license in accordance with section eighteen, article six of this chapter; or
(v) (5) A fraudulent misrepresentation by the new motor vehicle dealer to the manufacturer or distributor, which is material to the dealer agreement.
(d) Notwithstanding subdivision (a) of this subsection, notice shall be made not less than twelve months prior to the effective date of a termination, cancellation, nonrenewal or discontinuance if a manufacturer or distributor discontinues production of the new motor vehicle dealer's product line or discontinues distribution of the product line in this state.
(e) Any motor vehicle dealer who receives a notice of intent to discontinue, cancel or not renew a dealer agreement may, within a 120-day notice period, file a petition or complaint for a determination of whether such action is an unfair or prohibited discontinuation, cancellation or nonrenewal. Dealer agreements and certificates of appointment shall continue in effect until a final determination of the issues raised in such petition or complaint by the motor vehicle dealer. A discontinuance, cancellation or nonrenewal is unfair if it is:
(1) Not clearly permitted by the dealer agreement;
(2) Not undertaken in good faith;
(3) Not undertaken for good cause;
(4) Is based on an alleged breach of the franchise agreement which is not in fact a material and substantial breach; or
(5) If the grounds relied upon for the discontinuation, cancellation or nonrenewal have not been applied in a uniform and consistent manner by the manufacturer or distributor.
(f) No replacement dealer shall be named for this point or location to engage in business and the dealer's agreement shall remain in effect until a final judgement is entered after all appeals are exhausted: Provided, That when a motor vehicle dealer appeals a decision upholding a discontinuation, cancellation or nonrenewal under subdivisions (f) and (g) of this section, the dealer agreement shall remain in effect pending exhaustion of all appeals only if the motor vehicle dealer establishes a likelihood of success on appeal and that the public interest will not be harmed by keeping the dealer agreement in effect pending entry of final judgement after such appeal.
(g) If a transfer of ownership is proposed after a notice to discontinue, cancel or not renew a dealer agreement is received but, prior to the final determination, including exhaustion of all appellate remedies of a motor vehicle dealer's complaint or petition contesting such action, the termination proceedings shall be stayed, without bond, during the period the transfer is being reviewed by the manufacturer or distributor. During the period that the transfer is being reviewed by the manufacturer or distributor, the dealer agreement shall remain in full force and effect, and the motor vehicle dealer shall retain all rights and remedies pursuant to the terms and conditions of the dealer agreement and applicable law. This shall include, but is not limited to, all rights of transfer under subdivision (2), section ten, article six-a, chapter seventeen of this code until such time as the manufacturer or distributor has accepted or rejected the proposed transfer. If the proposed transfer is rejected, the motor vehicle dealer shall retain all of its rights pursuant to section sixteen of said article to a judicial determination as to whether the manufacturer or distributor's rejection is in compliance with the provisions of subdivision (2), section ten of said article and during the pendency of such judicial proceeding, and any related appellate proceedings, the termination proceedings shall remain stayed without bond, the dealer agreement shall remain in full force and effect and the motor vehicle dealer shall retain all rights and remedies pursuant to the terms and conditions of the dealer agreement and applicable law including all rights of transfer. If a transfer is approved by the manufacturer or distributor or mandated by law, the termination proceedings shall be dismissed with prejudice as moot.

_________


(NOTE: The purpose of this bill is to provide a procedure for motor vehicle dealer to petition for determination of whether cancellation or nonrenewal of a franchise agreement is unfair or prohibited.)
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****