H. B. 4429
(By Delegates Miller, Compton, Underwood,
Leach, Douglas, Capito and Thompson)
[Introduced February 13, 1998; referred to the
Committee on the Judiciary.]
A BILL 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
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 printers.
(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 device;
(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 termination savings.
(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 early termination.
(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 warranty continues after four
attempts at repair by the manufacturer, assistive device lessor,
or any of the manufacturer's authorized assistive device dealers;
(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 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 consumer.
§46A-6E-3. Warranty remedies; procedures for obtaining remedies.
(a) Repair. -- If a new assistive device does not conform to
its 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
(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 pursuant to rules proposed for legislative review and
approval by the attorney general. Upon application of the
consumer and payment of the filing fee, all manufacturers shall
submit to such alternate arbitration.
(b) Such alternate arbitration shall be conducted by a
professional arbitrator or arbitration firm appointed by and
under rules established by the attorney general. The mechanism
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.
§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 section 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.
NOTE: The purpose of this bill is to establish consumer
protection for consumers of assistive devices for disabled
Section six of this bill refers to regulations which have
not been promulgated.
This article is new; therefore, strike-throughs and
underscoring have been omitted.