Senate Bill No. 550

(By Senators Ball, Wooton, Anderson, Ross, Hunter, Kessler, McKenzie, Love, Schoonover, Helmick, Bowman, Fanning, Sharpe and White)

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[Introduced February 16, 1998; referred to the Committee on the Judiciary.]
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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 automobile repair fraud prevention; legislative purpose; definitions; unlawful practices; estimate requirements; invoice requirements; return of replaced parts; unauthorized repairs; required notice to customers; enforcement, remedies and penalties; and proposal of rules.

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 follows:
ARTICLE 6E. AUTO REPAIR FRAUD PREVENTION.
§46A-6E-1. Purpose.
The purpose of this article is to safeguard the public against fraudulent auto repair practices thereby enhancing public confidence in legitimate auto repair facilities and mechanics.
§46A-6E-2. Definitions.
For the purposes of this article, the following definitions apply:
(1) "Automotive repair facility" means any person who performs auto repair work on a motor vehicle for financial profit.
(2) "Motor vehicle" is as defined in section one, article one, chapter seventeen-a of this code.
(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest or any other legal or commercial entity.
(4) "Auto repair work" means performing or attempting to perform repairs or maintenance on a motor vehicle for financial profit.
(5) "Pattern of violations" means three or more violations within a one-year period.
§46A-6E-3. Unlawful practices.
(a) Deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact with the intent that others rely upon such concealment, suppression or omission of any material fact in connection with auto repair work by any automotive repair facility, whether or not any person has in fact been misled, deceived or damaged thereby, or the act, use or employment by any auto repair facility of a deceptive trade practice in connection with auto repair work constitutes an unlawful practice.
(b) Acts or practices by an automotive repair facility prohibited by subsection (a) of this section include, but are not limited to:
(1) Refusing to return a customer's motor vehicle because the customer refused to pay for unauthorized auto repair work in violation of section seven of this article;
(2) Misrepresenting that auto repair work has been made to a motor vehicle;
(3) Misrepresenting that auto repair work is necessary to a motor vehicle repair;
(4) Misrepresenting that the motor vehicle is in a dangerous condition or that the customer's continued use of the vehicle may be harmful or cause significant damage to the vehicle;
(5) Misrepresenting that the motor vehicle will or will not pass state inspection requirements or is not otherwise in compliance with state or federal requirements in connection with soliciting auto repair work;
(6) Performing unauthorized auto repair work in connection with a misrepresentation;
(7) Fraudulently altering any customer contract, estimate, invoice or other document;
(8) Fraudulently misusing a customer's credit card; or
(9) Engaging in a pattern of violations of section four, five, six or seven of this article or violating section four, five, six or seven of this article with the intent to hinder the discovery of practices or acts prohibited by this section.
§ 46A-6E-4. Estimate requirements for auto repair work.
(a) Written estimate and authorization requirements. -- Unless waived pursuant to subsection (b) of this section by the customer or by a person the auto repair facility reasonably believes is acting on the customer's behalf, the automotive repair facility shall, before beginning any auto repair work or transmission repair diagnosis on a motor vehicle, give the customer a written statement which contains:
(1) The estimated completion date;
(2) The estimated price for the auto repair work including parts and labor; and
(3) The estimated surcharge, if any.
(b) Oral estimates and authorization. -- If a customer or a person the auto repair facility reasonably believes is acting on the customer's behalf, waives his or her right to a written estimate, the automotive repair facility shall orally provide to the customer or a person the automotive repair facility reasonably believes to be acting on a customer's behalf, the estimated price and completion date before beginning any auto repair work: Provided, That the person giving the oral estimate shall make a written record of the requirements set forth in subsection (a) subdivisions (1) through (3) of this section, sign or initial the written document and retain the document for a period of no less than two years.
(c) Prohibited charges. -- An automotive repair facility may not charge a customer without the consent of the customer or a person the automotive repair facility reasonably believes is acting on behalf of the customer any amount which exceeds the estimate by twenty percent or fifty dollars, whichever is less. Any charges which exceed twenty percent or fifty dollars, whichever is less, must comply with the requirements of subsections (a) and (b) of this section.
§46A-6E-5. Invoice requirements.
(a) Work description. -- An automotive repair facility shall prepare an invoice which describes in all material respects;
(1) Auto repair work done by it, including all warranty work;
(2) All parts supplied by it;
(3) All labor performed by it. To the extent a charge for labor is not based on actual hours worked, the invoice shall specify that labor charge is based on a flat rate. Notwithstanding the above, if the labor charge is part of a packaged price product, such as an oil change, the invoice need not specify the labor component of that charge; and
(4) All auto repair work that is performed by persons other than the auto repair facility. The auto repair facility shall retain the name, address and telephone number of any other persons performing auto repair work and disclose such information upon request of the customer or a person it reasonably believes to be acting on the customer's behalf.
(b) Used, rebuilt or reconditioned parts. -- The invoice shall state clearly if any used, rebuilt or reconditioned parts were used in the auto repair work or if a part of a component system supplied is composed of use, rebuilt or reconditioned parts. Nothing in this subsection limits the provisions of article six-b of this chapter.
(c) Copies of invoices. -- The automotive repair facility may give the customer a copy of the invoice and retain a copy for no less than two years.
§46A-6E-6. Replaced parts -- Requirement for return to the customer.
An automotive repair facility shall offer to return all replaced parts to the customer or a person acting on his or her behalf, except parts which are returned to a manufacturer or distributer, hazardous materials or other items which the automotive repair facility is otherwise required to properly dispose of or recycle. Nothing herein requires the auto repair facility to retain replaced parts after final invoice.
§46A-6E-7. Unauthorized repairs.
An automotive repair facility may not charge a customer for repairs not originally authorized or requested by the customer, or a person the auto repair facility reasonably believes is acting on the customer's behalf, unless the automotive repair facility receives written or oral permission from the customer in conformance with this chapter. To the extent a charge does not exceed an estimate by twenty percent or fifty dollars, whichever is less, no cause of action pursuant to section nine, subsection (c) of this article accrues. Nothing in this section precludes enforcement pursuant to section three, subsection (b)subdivisions(6) and (9) of this article.
§46A-6E-8. Required notice to customers.
(a) All auto repair shops not otherwise complying with subsection (b) of this section shall post a sign, in a manner conspicuous to the public, which states as follows:
(1) The customer is entitled to receive a written or oral estimate;
(2) No auto repair work charge may exceed the estimate without the customer's consent;
(3) The facility shall offer to return to the consumer all replaced parts except those under warranty or trade-in parts returned to a manufacturer or distributor; and
(4) Complaints can be made to the attorney general's office of consumer protection.
(b) To the extent an auto repair facility does not post a sign pursuant to subsection (a) of this section, an automotive repair facility shall, prior to performing auto repair work, disclose to the customer on a separate document or the written estimate itself the following language:
"PLEASE READ CAREFULLY

CHECK ONE OF THE STATEMENTS BELOW AND SIGN

I UNDERSTAND THAT, UNDER STATE LAW, I AM ENTITLED TO A WRITTEN ESTIMATE.
_______ I REQUEST A WRITTEN ESTIMATE.
_______ I REQUEST AN ORAL ESTIMATE.
_______ I DO NOT REQUEST A WRITTEN ESTIMATE AS LONG AS THE REPAIR COSTS DO NOT EXCEED $_______. THE SHOP MAY NOT EXCEED THIS AMOUNT WITHOUT MY WRITTEN OR ORAL APPROVAL.
_______ I WAIVE MY RIGHT TO AN ESTIMATE.
SIGNED______________________ DATE__________________"
The above language shall be in bold typeset at least as large as the size of the print in the main body of the document. The requirements of this section shall be effective as of the first day of July, one thousand nine hundred ninety-eight.
§46A-6E-9. Enforcement and remedies; penalties; rules.
(a) The attorney general shall administer this article and may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement these provisions.
(b) A person violating the provisions of section three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than two thousand dollars, or confined in the county or regional jail not more than six months, or both fined and imprisoned.

(c) Transactions where an automotive repair facility has violated the requirements of section three, four, five, six or seven of this article shall be voidable by the consumer in actions brought in a court of competent jurisdiction. In successful actions brought by consumers under this subsection, the automotive repair facility shall be liable to the customer for twice the amount of any consideration obtained in violation of this article and the costs of the actions: Provided, That the customer must first allow the auto repair facility the opportunity to resolve the dispute prior to filing an action under this subsection; and the court may further award a customer reasonable attorney's fees.
Nothing in this subsection prohibits a person from otherwise seeking a recovery in an action for damages against an automotive repair facility.
(d) The remedies and penalties provided in this section are not exclusive and shall be in addition to any other procedures, rights or remedies which exist with respect to any other provisions of law, including, but not limited to, state or federal criminal prosecutions or common law or statutory actions brought by private parties.


NOTE: The purpose of this bill is to provide consumer protection standards to prevent automobile repair fraud.
This article is new; therefore, underscoring and strike- throughs have been omitted.