(1) Notwithstanding any agreement, a manufacturer or distributor shall not cancel, terminate, fail to renew or refuse to continue any dealer agreement with a new motor vehicle dealer unless the manufacturer or distributor has complied with all of the following:
(a) Satisfied the notice requirement of section seven of this article;
(b) Acted in good faith;
(c) Engaged in full and open communication with franchised dealer; and
(d) Has good cause for the cancellation, termination, nonrenewal or discontinuance.
(2) Notwithstanding any agreement, good cause exists when a manufacturer or distributor can demonstrate termination is necessary due to a material breach of a reasonable term or terms of the agreement by a dealer when weighed against the interests of the dealer and the public. The burden of proof is on the manufacturer to prove good cause by a preponderance of the evidence. The interests of the dealer and the public shall include consideration of:
(a) The relationship of the dealer's sales to the sales in the relevant market;
(b) The investment and financial obligations of the dealer under the terms of the franchise agreement;
(c) The effect on the public cancellation of the franchise agreement would cause;
(d) The adequacy of the dealer's sales and service facilities, equipment, parts and personnel in relation to other dealers in the relevant market;
(e) Whether the dealer is honoring existing warranties;
(f) Whether the dealer is complying, or can comply within a reasonable time, with reasonable capitalization requirements; and
(g) The dealer's overall performance under the reasonable terms of the franchise agreement. This shall include the overall fairness of the agreement terms, the enforceability of the agreement and the relative bargaining power of the parties.
(h) Whether the manufacturer made available the appropriate volumes and type of motor vehicles to the dealer and a reasonable opportunity for sales and service training to the dealer.
(3) In addition to the requirements of subsection (2) of this section, if the failure by the new motor vehicle dealer to comply with a provision of the dealer agreement relates to the performance of the new motor vehicle dealer in sales or service, good cause exists for the purposes of a termination, cancellation, nonrenewal or discontinuance under subsection (1) of this section when the new motor vehicle dealer failed to effectively carry out the performance provisions of the dealer agreement if all of the following have occurred:
(a) The new motor vehicle dealer was given written notice by the manufacturer or distributor of the failure;
(b) The notification stated that the notice of failure of performance was provided pursuant to this article;
(c) The new motor vehicle dealer was afforded a reasonable opportunity to exert good faith efforts to carry out the dealer agreement; and
(d) The failure continued for more than three hundred sixty days after the date notification was given pursuant to subdivision (a) of this subsection.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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