H. B. 4429
(By Delegates Miller, Compton, Underwood,
Leach, Douglas, Capito and Thompson)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT to amend chapter forty-six-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article six-e, relating to
providing consumer protection regarding assistive devices;
definitions; warranty requirements and remedies; lease
enforcement; required disclosures; arbitration; and actions
Be it enacted by the Legislature of West Virginia:
That chapter forty-six-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article six-e, to read as
ARTICLE 6E. CONSUMER PROTECTION--ASSISTIVE DEVICES.
(a) "Assistive device" means any device enabling a person with a disability to communicate, see, hear or maneuver, which a
consumer purchases or accepts transfer of in this state. This
definition includes a demonstrator. Examples of assistive devices
include, but are not limited to, manual and motorized wheelchairs,
motorized scooters, hearing aids, telephone communication devices
for the deaf (TTY), assistive listening devices, voice synthesized
computer modules, optical scanners, talking software and braille
(b) "Assistive device dealer" means a person who is in the
business of selling assistive devices.
(c) "Assistive device lessor" means a person who leases an
assistive device to a consumer, or who holds the lessor's rights,
under a written lease.
(d) "Collateral costs" means expenses incurred by a consumer
in connection with the repair of a nonconformity, including the
costs of obtaining an alternative assistive device.
(e) "Consumer" means any of the following:
(1) The purchaser of an assistive device, if the assistive
device was purchased from an assistive device dealer or
manufacturer for purposes other than resale;
(2) A person to whom the assistive device is transferred for
purposes other than resale, if the transfer occurs before the
expiration of an express warranty applicable to the assistive
(3) A person who may enforce the warranty; and
(4) A person who leases an assistive device from an assistive
device lessor under a written lease.
(f) "Current value of the written lease" means the total
amount for which that lease obligates the consumer during the
period of the lease remaining after its early termination, plus the
assistive device dealer's early termination costs and the value of
the assistive device at the lease expiration date if the lease sets
forth that value, less the assistive device lessor's early
(g) "Demonstrator" means an assistive device used primarily
for the purpose of demonstration to the public.
(h) "Early termination cost" means any expense or obligation
that an assistive device lessor incurs as a result of both the
termination of a written lease before the termination date set
forth in that lease and the return of an assistive device to a
manufacturer pursuant to this section. Early termination cost
includes a penalty for prepayment under finance arrangement.
(i) "Early termination saving" means any expense or obligation
that an assistive device lessor avoids as a result of both the
termination of a written lease before that termination date set
forth in that lease and the return of an assistive device to a
manufacturer pursuant to this section. Early termination saving
includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive
device lessor does not finance the assistive device, 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 that amount at the date of the
(j) "Manufacturer" means a person who manufactures or
assembles assistive devices and agents of that person, including an
importer, a distributor, factory branch, distributor branch and any
warrantor of the manufacturer's assistive device, but does not
include an assistive device dealer.
(k) "Nonconformity" means a condition or defect that
substantially impairs the use, value or safety of an assistive
device and is covered by a warranty applicable to the assistive
device or to a component of the assistive device.
(l) "Reasonable allowance for use" means an amount obtained by
multiplying the total amount for which the lease obligates the
consumer by a fraction, the denominator of which is one thousand
eight hundred twenty-five and the numerator of which is the number
of days that the consumer used the assistive device before first
reporting the nonconformity to the manufacturer, assistive device
lessor or assistive device dealer.
(m) "Reasonable attempt to repair" means within the terms of
a warranty applicable to a new assistive device:
(1) A nonconformity within the manufacturer's warranty
continues after three attempts at repair by the manufacturer,
assistive device lessor, or any of the manufacturer's authorized
assistive device dealers; or
(2) The assistive device is out of service for thirty
cumulative days because of warranty nonconformity.
§46A-6E-2. Express warranty requirement; express warranty
duration; implied warranty.
(a) A manufacturer who sells an assistive device to a
consumer, either directly or through an assistive device dealer,
shall furnish the consumer with an express warranty for the
assistive device. The duration of the express warranty shall be
not less than one year after first delivery of the assistive device
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 of an assistive device that, for a period
of one year from the date of first delivery to the consumer, the
assistive device will be free from any condition or defect which
substantially impairs the value of the assistive device to the
(b) Notwithstanding any other provision of law to the
contrary with respect to assistive devices subject to the
provisions of this article, no manufacturer, assistive device
dealer or assistive device lessor shall:
(1) Exclude, modify or otherwise attempt to limit any
warranty, express or implied, including the warranties of
merchantability and fitness for a particular purpose; or
(2) Exclude, modify or attempt to limit any remedy provided by
law, including the measure of damages available, for a breach of
warranty, express or implied.
Any such exclusion, modification or attempted limitation shall
§46A-6E-3. Warranty remedies; procedures for obtaining remedies.
(a) Repair. -- If a new assistive device does not conform to
an express or implied warranty and the consumer reports the
nonconformity to the manufacturer, the assistive device lessor, or
a manufacturer's authorized assistive device dealer and makes the
assistive device available for repair on or before one year after
return delivery of the assistive device to a consumer, the
nonconformity shall be repaired at no charge to the consumer.
(b) Return, refund, reimbursement, replacement. -- After a
reasonable attempt to repair, if the nonconformity in an assistive
device is not repaired, the consumer may request remedies within
this section by offering to transfer possession of the assistive
device to the manufacturer. No later than thirty days after the
consumer's offer, the manufacturer shall provide to the consumer as
many of the following remedies as are applicable and elected by the
consumer, whereupon the consumer shall return to the manufacturer the assistive device and any endorsements necessary to transfer its
possession to the manufacturer:
(1) Accept return of the assistive device;
(2) Replace the assistive device with a comparable new
(3) Refund collateral costs to the consumer;
(4) Refund to the consumer and to any holder of a perfected
security interest in the assistive device the full purchase price,
plus any finance charge paid by the consumer, plus collateral
costs, less a reasonable allowance for use; or
(5) Refund to the lessor and to any holder of a perfected
security interest in the assistive device the current value of the
written lease, and refund to the consumer the amount paid by the
consumer pursuant to the written lease, plus collateral costs, less
a reasonable allowance for use.
§46A-6E-4. Lease enforcement.
No person may enforce the lease of an assistive device against
the consumer after the consumer receives a refund pursuant to
section three of this article.
§46A-6E-5. Disclosure upon further sale or lease.
No assistive device returned by a consumer or assistive device
lessor in this state, or by a consumer or assistive device lessor
in another state under a similar law of that state, may be sold or
leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
(a) 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 by the
attorney general. Upon application of the consumer and payment of
the filing fee, all manufacturers shall submit to such alternate
(b) Such alternate arbitration shall be conducted by a
professional arbitrator or arbitration firm appointed by the
attorney general. The arbitration process shall ensure that
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.
(c) The attorney general shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code to establish the arbitration mechanism
provided for in this section.
§46A-6E-7. Limitations; waiver of rights; action for damages;
(a) This section does not limit rights or remedies available
to a consumer under any other law.
(b) Any waiver by a consumer of rights under this article is
(c) In addition to pursuing any other remedy, a consumer may
bring an action to recover for any 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 determines appropriate.