CHAPTER 173

FORMERLY

SENATE BILL NO. 276

AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO CERTAIN AUTOMOBILE WARRANTIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 6 of the Delaware Code by adding thereto a new Chapter to read as follows:

"CHAPTER 49. AUTOMOBILE WARRANTIES

§4901. Definitions

As used in this Chapter:

(a) 'Consumer' means the purchaser, other than for purposes of resale, of an automobile; a person to whom an automobile is transferred during the duration of an express warranty applicable to the automobile; or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

(b) 'Dealer' means a person actively engaged in the business of buying, selling or exchanging automobiles at retail and who has an established place of business.

(c) 'Manufacturer' means a person engaged in the business of manufacturing, assembling or distributing automobiles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least 10 new automobiles.

(d) 'Manufacturer's express warranty' or 'warranty' means the written warranty of the manufacturer of a new automobile of its condition and fitness for use, Including any terms or conditions precedent to the enforcement of obligations under that warranty.

(e) 'Automobile' means any passenger motor vehicle, except motorcycles, which is registered by the Division of Motor Vehicles in the Department of Public Safety except the living facilities of motor homes.

(f) 'Nonconformity' means a defect or condition which substantially impairs the use, value, or safety of an automobile.

(g) 'Lien' means a security interest in an automobile.

(h) 'Llenholder' means a person with a security interest in an automobile pursuant to a lien.

§4902. Duty to repair automobiles

If a new automobile does not conform to the manufacturer's express warranty, and the consumer reports the nonconformity to the manufacturer or Its agent or dealer during the term of the warranty or during the period of one year following the date of original delivery of an automobile to the consumer, whichever is earlier, the manufacturer shall make, or arrange with its dealer or agent to make, within a reasonable period of time, all repairs necessary to conform the new automobile to the warranty, notwithstanding that the repairs or corrections are made after the expiration of the term of the warranty or the one-year period.

§4903. Remedies upon failure to repair

(a) If the manufacturer is unable to conform the new automobile to the warranty by repairing or correcting a defect or condition which substantially impairs the use, value or safety of the new automobile to the consumer after a reasonable number of attempts, the manufacturer shall accept return of the automobile from the consumer and either:

(1) Replace the automobile with a comparable new automobile and the consumer shall pay the manufacturer a reasonable allowance for his use of the automobile being returned and shall not pay, on the new replacement automobile, the taxes, preparation fees or any other charges or fees usually paid by a consumer; or

(2) Refund to the consumer the full purchase price of the original automobile, including all taxes, preparation fees and any other charges or fees paid by the consumer, less a reasonable allowance for the consumer's use of the original automobile.

(b) The provisions of this section shall not affect the interests of a lienholder, unless the lienholder consents to the replacement of the lien with a corresponding Hen on the automobile accepted by the consumer in exchange for the automobile having a nonconformity, the lienholder shall be paid in full the amount due on the lien, including interest and other charges, before an exchange of automobiles or a refund to the consumer Is made.

§4904. Presumptions

(a) It shall be presumed that a reasonable number of attempts have been undertaken to conform a new automobile to the manufacturer's express warranty if, within the warranty term or during the period of one year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date:

(1) The same nonconformity has been subject to repair or correction four or more times by the manufacturer, its agents or its dealers and the nonconformity continues to exist; or

(2) The automobile is out of service by reason of waiting for the dealer to begin or complete repair or correction of a nonconformity by the manufacturer, its agents or its dealers for a cumulative total of more than 30 business days since the original delivery of the motor vehicle to the consumer. This 30-day limit shall commence with the first day on which the consumer presents the automobile to the manufacturer, its agent or dealer for service of the nonconformity and a written document describing the nonconformity is prepared by the manufacturer, its agent, or dealer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer, its agents or its dealers, including war, invasion, strike, fire, flood or other natural disaster.

(b) The presumption provided in this section shall not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to repair or correct the nonconformity; provided, however, that if the manufacturer does not directly attempt or arrange with its dealer or agent to repair or correct the nonconformity, the manufacturer may not defend a claim by a consumer under this act on the ground that the agent or dealer failed to properly repair or correct the nonconformity or that the repairs or corrections made by the agent or dealer caused or contributed to the nonconformity.

§4905. Allowance for use

A reasonable allowance for use shall be the total amount directly attributable to the use of the new automobile by the consumer and any previous consumer, prior to the first report of the nonconformity to the manufacturer by the consumer or any previous consumer of the new automobile and during any sutxequent period when the vehicle is not out of service by reason of repair or correction of the nonconformity so reported.

§4906. Affirmative defense to claim

It shall be an affirmative defense to a claim under this act that the alleged nonconformity does not substantially impair the use, value, or safety of the new automobile or that the nonconformity is the result of abuse or neglect or of unauthorized modifications or alterations of the new automobile by anyone other than the manufacturer, its agent or dealer.

§4907. Informal dispute settlement procedure

(a) If a manufacturer has established a qualified informal dispute settlement procedure pursuant to section 110 of Pub. L. 93-637 (15 U.S.C. §2310) and the rules promulgated thereunder, the remedies provided by this act shall not be available to a consumer who has not first resorted to that procedure.

(b) The Division of Consumer Affairs of the Department of Community Affairs and Economic Development shall periodically make known to the public whether or not the dispute settlement procedure of each manufacturer doing business in this State complies with procedures pursuant to section 110 of Pub. L. 93-631 (15 U.S.C. 52310) and the rules promulgated thereunder.

§4908. Remedies cumulative

Nothing in this chapter shall in any way limit the rights or remedies available to a consumer under Chapter 1 of this title.

§4909. Enforcement

In addition to any remedies the consumer may have at law or in equity, §8612 of Title 29 shall apply to violations of this chapter."

Section 2. If any provisions of this Act or the application thereof to any person or circumstance Is held invalid, such invalid ty shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 3. This chapter shall apply to new motor vehicles beginning with the model year following the effective date of this Act.

Approved July 13, 1983.