Senate Bill No. 459
(By Senators Carmichael and D. Hall)
[Introduced March 6, 2013; referred to the Committee on the
A BILL to amend and reenact §46A-6-107 of the Code of West
Virginia, 1931, as amended, relating to disclaimers of
warranties with respect to goods which are the subject of or
are intended to become the subject of a consumer transaction;
prohibition against exclusion, modification or limitation of
any warranty or remedy; waiver of warranty on used motor
vehicle as to a particular defect or malfunction which dealer
has disclosed; conditions permitting as-is sale of used motor
vehicle; conspicuous disclosure of as-is sale; as-is sale does
not waive express warranties made by dealer; and dealer to
conform to federal regulations.
Be it enacted by the Legislature of West Virginia:
That §46A-6-107 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-107. Disclaimer of warranties and remedies prohibited.
Notwithstanding any other provision of law to the contrary
Except in the case of certain used motor vehicles as otherwise
provided in this section, with respect to goods which are the
subject of or are intended to become the subject of a consumer
transaction, no merchant shall may:
(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
be is void.
____(b) Except as otherwise provided in this section, an agreement
entered into by a consumer for the purchase of a used motor vehicle
that excludes, modifies or attempts to limit any warranty, express
or implied, including the warranties of merchantability and fitness
for a particular purpose is void as contrary to public policy, and
the dealer nevertheless shall be considered, as a matter of law, to
have given the warranty.
____(c) Notwithstanding the provisions of subsections (a) and (b) of this section, a consumer who purchases a used motor vehicle may
waive a warranty as to a particular defect or malfunction which the
dealer has disclosed in writing to the consumer. No such waiver is
effective unless the waiver:
____(1) Is in writing;
____(2) Is conspicuous and is in plain language;
____(3) Identifies the particular disclosed defect or malfunction
in the used motor vehicle for which the warranty is to be waived;
____(4) Describes any additional defects or malfunctions, if any;
____(A) Disclosed to the dealer by a previous owner of the used
motor vehicle; (B) discoverable by the dealer through an inspection
of the used motor vehicle; and (C) that must be repaired before the
used motor vehicle can comply with the motor vehicle inspection and
test laws set forth in article sixteen, chapter seventeen-c of this
____(5) States what warranty, if any, applies to any disclosed
defect or malfunction; and
____(6) Is signed by both the consumer and the dealer before the
sales contract is executed.
____(d) A motor vehicle may be sold "as is" and the prohibition
against exclusion, modification or limitation of any warranty or
remedy, as set forth in this section, does not apply to:
____(1) A used motor vehicle sold for less than $2,500;
____(2) A used motor vehicle that has been driven more than eighty
thousand actual miles at the time sold;
____(3) A used motor vehicle that is seven years of age or older,
calculated from January 1, of the designated model year of the
____(4) A vehicle that has been custom built or modified for show
purposes or racing; or
____(5) A vehicle that is inoperable and a total loss.
____For the purpose of this subsection, a vehicle is a "total
loss" only if there is material damage to the vehicle's frame,
unitized structure or suspension system, and the projected cost of
repairing the damage exceeds the market value of the vehicle at the
time of the incident causing it to be declared a total loss.
____(e) A used motor vehicle may be sold "as is" by a dealer only
if it falls within one or more of the exemptions set out in
subsection (d) of this section. No "as is" disclaimer by a dealer
is enforceable unless all of the following conditions are met:
____(1) A disclaimer must appear on the front page of the contract
of sale, and must read as follows:
THIS VEHICLE IS SOLD "AS IS". YOU WILL HAVE TO PAY FOR ANY REPAIRS
NEEDED AFTER THE SALE. IF WE HAVE MADE ANY PROMISES TO YOU, THE
LAW SAYS WE MUST KEEP OUR PROMISES EVEN IF WE SELL "AS IS". TO PROTECT YOURSELF, ASK US TO PUT ALL PROMISES IN WRITING.
____(2) The text of the disclaimer must be printed in twelve-point
boldfaced type, except the heading, which must be in sixteen-point
extra boldfaced type. The entire notice must be boxed.
____(3) The consumer shall sign the consumer's name and the date
within the box containing the disclaimer prior to the sale.
____(4) An "as is" sale of a used motor vehicle waives implied
warranties, but does not waive any express warranties, either oral
or written, upon which the consumer relied in entering into the
____(5) In selling or offering to sell any used motor vehicle, and
in providing an express warranty, a dealer shall comply in all
respects with the Federal Trade Commission's "Used Motor Vehicle
Trade Regulation Rule," 16 C.F.R. § 455.
NOTE: The purpose of this bill is to prohibit the exclusion,
modification or limitation of any warranty or remedy in the sale of
used motor vehicles; to allow a consumer to waive a warranty on
used motor vehicle as to a particular defect or malfunction only if
the dealer has disclosed the particular defect; to identify
conditions permitting "as is" sales of used motor vehicles; to
require conspicuous disclosure of "as is" sales; to clarify that
"as is" sales do not waive express warranties made by a dealer; and
to require dealers to conform to federal regulations concerning
used motor vehicle sales.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would