Senate Bill No. 557
(By Senators Ball and Wooton)
[Introduced February 16, 1998; referred to the
Committee on the Judiciary; and then to the Committee on Finance
A BILL to amend article six-a, chapter forty-six-a of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eight-a, relating to creating the new motor vehicle
arbitration board; membership of board; eligibility of
dispute for arbitration by board; authority and duties of
board; hearings before board; appeals; authority and duties
of attorney general and consumer protection division;
remedies and penalties; and proposal of rules.
Be it enacted by the Legislature of West Virginia:
That article six-a, 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 section, designated section eight-a, to read as follows:
ARTICLE 6A. CONSUMER PROTECTION--NEW MOTOR VEHICLE WARRANTIES.
§46A-6A-8a. New motor vehicle arbitration board; creation and function; dispute eligibility.
(a) There is established within the attorney general's
office a new motor vehicle arbitration board, to be empowered and
implemented as follows:
(1) The new motor vehicle arbitration board, hereinafter
"board," shall consist of members appointed by the attorney
general for an initial term of one year. Board members may be
reappointed for additional terms of two years. Each board member
is accountable to the attorney general for the performance of the
member's duties and is exempt from civil liability for any act
or omission which occurs while acting in the member's official
capacity. The attorney general's office shall defend a member in
any action against the member or the board which arises from any
such act or omission.
(2) The board shall hear cases in various locations
throughout the state so any consumer whose dispute is approved
for arbitration by the consumer protection division of the
attorney general's office may attend an arbitration hearing at a
reasonably convenient location and present a dispute orally.
Hearings shall be conducted by panels of three board members assigned by the attorney general. A majority vote of the
three-member board panel shall be required to render a decision.
Arbitration proceedings under this section shall be open to the
public on reasonable and nondiscriminatory terms.
(3) The board shall consist of up to eight members. The
members of the board shall construe and apply the provisions of
this article, and rules adopted thereunder, in making their
decisions. An administrator and a secretary shall be assigned to
the board by the attorney general. At least one member of the
board shall be a person with expertise in motor vehicle
mechanics. A member may not be employed by a manufacturer or a
franchised motor vehicle dealer or be a staff member of the
attorney general's office. Board members shall be trained in the
application of this article and any rules adopted under this
article, shall be reimbursed for travel expenses, and shall be
compensated at a rate or wage prescribed by the attorney general.
(4) Before filing a civil action on a matter subject to this
article, the consumer shall first submit the dispute to the
consumer protection division of the attorney general's office,
and to the board if such dispute is deemed eligible for
(5) Manufacturers shall submit to arbitration conducted by
the board if such arbitration is requested by a consumer and the dispute is deemed eligible for arbitration by the consumer
protection division pursuant to this article.
(6) The board shall hear the dispute within forty days and
render a decision within sixty days after the date the request
for arbitration is approved. The board may continue the hearing
on its own motion or upon the request of a party for good cause
shown. A request for continuance by the consumer constitutes
waiver of the time periods set forth in this subsection. The
consumer protection division, at the board's request, may
investigate disputes, and may issue subpoenas for the attendance
of witnesses and for the production of records, documents and
other evidence before the board. The failure of the board to
hear a dispute or render a decision within the prescribed periods
does not invalidate the decision.
(7) At all arbitration proceedings, the parties may present
oral and written testimony, present witnesses and evidence
relevant to the dispute, cross-examine witnesses and be
represented by counsel. The board may administer oaths or
affirmations to witnesses and inspect the vehicle if requested by
a party or if the board deems such inspection appropriate.
(8) The board shall grant relief, if a reasonable number of
attempts have been undertaken to correct a nonconformity or
(9) The decision of the board shall be sent by registered
mail to the consumer and the manufacturer, and shall contain
written findings of fact and rationale for the decision. If the
decision is in favor of the consumer, the manufacturer shall,
within forty days after receipt of the decision, comply with the
terms of the decision. Compliance occurs on the date the
consumer receives delivery of an acceptable replacement motor
vehicle or the refund specified in the arbitration award. In any
civil action arising under this article and relating to a dispute
arbitrated before the board, any decision by the board is
admissible in evidence.
(10) A decision is final unless appealed by either party.
A petition to the circuit court to appeal a decision shall be
made within thirty days after receipt of the decision. The
petition shall be filed in the county where the consumer resides,
or where the motor vehicle was acquired, or where the arbitration
hearing was conducted. Within seven days after the petition has
been filed, the appealing party shall send a copy of the petition
to the consumer protection division. If the consumer protection
division does not receive notice of such petition within forty
days after the manufacturer's receipt of a decision in favor of
the consumer, and the manufacturer has neither complied with, nor
has petitioned to appeal such decision, the consumer protection division may apply to the circuit court to seek imposition of a
fine up to one thousand dollars per day against the manufacturer
until the amount stands at twice the purchase price of the motor
vehicle, unless the manufacturer provides clear and convincing
evidence that the delay or failure was beyond its control or was
acceptable to the consumer as evidenced by a written statement
signed by the consumer. If the manufacturer fails to provide
such evidence or fails to pay the fine, the consumer protection
division shall initiate proceedings against the manufacturer for
failure to pay such fine. The proceeds from the fine herein
imposed shall be deposited in a fund to be created in the
treasurer's office, which shall be designated the "motor vehicle
warranty trust fund," and moneys from this fund shall be expended
for implementation and enforcement of this article. If the
manufacturer fails to comply with the provisions of this
subsection, the court shall affirm the award upon application by
(11) An appeal of a decision by the board to the circuit
court by a consumer or a manufacturer shall be by trial de novo.
In a written petition to appeal a decision by the board, the
appealing party shall state the action requested and the grounds
relied upon for appeal. Within thirty days of final disposition
of the appeal, the appealing party shall furnish the consumer protection division with notice of such disposition and, upon
request, shall furnish the consumer protection division with a
copy of the order or judgment of the court.
(12) If a decision of the board in favor of the consumer is
upheld by the court, recovery by the consumer shall include the
pecuniary value of the award, attorney's fees incurred in
obtaining confirmation of the award, and all costs and continuing
damages in the amount of twenty-five dollars per day for each day
beyond the forty day period following the manufacturer's receipt
of the board's decision. If a court determines that the
manufacturer acted in bad faith in bringing the appeal or brought
the appeal solely for the purpose of harassment or in complete
absence of a justiciable issue of law or fact, the court shall
double, and may triple, the amount of the total award.
(13) When a judgment affirms a decision by the board in
favor of a consumer, appellate review may be conditioned upon
payment by the manufacturer of the consumer's attorney's fees and
giving security for costs and expenses resulting from the review
(14) The consumer protection division shall maintain records
of each dispute submitted to the board, including an index of
motor vehicles by year, make, and model, and shall compile
aggregate annual statistics for all disputes submitted to, and decided by, the board, as well as annual statistics for each
manufacturer that include, but are not limited to, the value, if
applicable, and the number and percent of:
(A) Replacement motor vehicle requests;
(B) Purchase price refund requests;
(C) Replacement motor vehicles obtained in prehearing
(D) Purchase price refunds obtained in prehearing
(E) Replacement motor vehicles awarded in arbitration;
(F) Purchase price refunds awarded in arbitration;
(G) Board decisions neither complied with in forty days nor
petitioned for appeal within thirty days;
(H) Board decisions appealed;
(I) Appeals affirmed by the court; and
(J) Appeals found by the court to be brought in bad faith or
solely for the purpose of harassment.
The statistics compiled under this subsection are public
(15) When requested by the consumer protection division, a
manufacturer shall verify the settlement terms for disputes that
are approved for arbitration but are not decided by the board.
(b) Eligibility of a dispute for arbitration by the board shall be determined as follows:
(1) If a manufacturer has a certified procedure, a consumer
claim arising under this article shall be filed with the
certified procedure. If a decision is not rendered by the
certified procedure within forty days of filing, the consumer may
apply to the consumer protection division to have the dispute
removed to the board for arbitration.
(2) When a manufacturer has a certified procedure and a
consumer claim arising under this article has been filed with the
certified procedure, if a consumer is not satisfied with the
decision or the manufacturer's compliance therewith, the consumer
may apply to the division to have the dispute submitted to the
board for arbitration. A manufacturer may not seek review of a
decision made under its procedure.
(3) If a manufacturer has no certified procedure or if a
certified procedure does not have jurisdiction to resolve the
dispute, a consumer may apply directly to the consumer protection
division to have the dispute submitted to the board for
(4) A consumer must request arbitration before the board
with respect to a claim arising under this article within one
year after the expiration of the express warranty term, or within
thirty days after the final action of a certified procedure, whichever date occurs later.
(5) The consumer protection division shall screen all
requests for arbitration before the board to determine
eligibility. The consumer protection division shall forward to
the board all disputes that it determines are potentially
entitled to relief under this article.
(6) The consumer protection division may reject a dispute
that it determines to be fraudulent or outside the scope of the
board's authority. Any dispute deemed by the consumer protection
division to be ineligible for arbitration by the board due to
insufficient evidence may be reconsidered upon the submission of
new information regarding the dispute. Following a second
review, the consumer protection division may reject a dispute if
the evidence is clearly insufficient to qualify for relief. When
a dispute is rejected by the division notice shall be sent by
registered mail to the consumer and the manufacturer, containing
a brief explanation as to the reason for rejection.
(7) If the consumer protection division rejects a dispute,
the consumer may file a lawsuit to enforce the remedies provided
under this article. In any civil action arising under this
article and relating to a matter considered by the consumer
protection division, any determination made to reject a dispute
is admissible in evidence.
(c) The attorney general shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code to implement the provisions of
NOTE: The purpose of this bill is to create the New Motor
Vehicle Arbitration Board to resolve disputes under this State's
automobile "lemon law."
This section is new; therefore, strike-throughs and
underscoring have been omitted.