HOUSE BILL NO. 433
AS AMENDED BY
HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO CONSUMER PROTECTION AND ASSISTIVE TECHNOLOGY DEVICES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :
WHEREAS, the General Assembly recognizes that when assistive technology breaks down, something vital is at risk: a job may be lost, a school day may be missed, and health may be compromised; and
WHEREAS, assistive technology devices often carry no warranty, or only covered by a very limited warranty; and
WHEREAS, at least 38 states, including sister states Maryland, New Jersey and Pennsylvania, have extended “lemon law” protections to consumers of assistive technology; and
WHEREAS, the General Assembly finds and declares that there is a need to have consumer protection laws in place to guard against assistive technology “lemons” being sold to Delaware’s consumers;
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Subtitle II, Title 6 of the Delaware Code, by inserting therein a new Chapter as follows:
“Chapter 50B. Assistive Technology Device Warranties and Consumer Protection.
§ 5001B. Definitions.
For purposes of this Chapter, the following words, terms and phrases shall have the meanings herein ascribed to them, except when the context clearly indicates a different meaning:
(1) “Assistive technology device” means any item, piece of equipment, or product system that is designed and used to increase, maintain, or improve functional capabilities of individuals with disabilities; whether acquired commercially or “off-the-shelf,” modified, customized, or currently or previously used as a demonstrator. An assistive technology device system that, as a whole, is within the definition of this term is itself an assistive technology device, and in this case this term also applies to each component product of the assistive technology device system that is itself ordinarily an assistive technology device. This term includes, but is not limited to:
a. Motorized and manually operated wheelchairs, personal mobility equipment, and other devices or aids of any kind that enhance the mobility or positioning of an individual with a disability, such as motorization, motorized positioning features, and the switches and controls for any motorized features;
b. Hearing aids, telephone communication devices for persons who are deaf or hard of hearing, assistive listening devices, and other hearing and communication assistive technology;
c. Computer equipment and reading devices with voice output, optical scanners, talking software, Braille printers, and other aids and devices that provide access to text;
d. Computer equipment and communication devices with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices;
e. Voice recognition computer equipment, software and hardware accommodations, switches, and other alternative access to computers;
f. Environmental control units designed for or used by individuals with disabilities; and
g. Mechanical aids that increase, maintain or improve the functional capabilities or health and safety of an individual with disabilities.
(2) “Assistive technology device dealer” means a person or entity in the business of selling new assistive technology devices.
(3) “Assistive technology device lessor” means a person or entity who leases new assistive technology devices to consumers, or who holds the lessor’s rights, under a written lease.
(4) “Assistive Technology Device System” means the final product resulting from a manufacturer customizing, adapting, reconfiguring, refitting, refurbishing or composing into a system one or more component products, whether or not new, that may be assistive technology devices or standard products of the same or other manufacturer.
(5) “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of sales tax and of obtaining an alternative assistive technology device.
(6) “Consumer” includes any of the following:
a. the purchaser of an assistive technology device, including any insurer or governmental agency or instrumentality, if the assistive technology device was purchased from an assistive technology device dealer or manufacturer for purposes other than resale;
b. a person to whom the assistive technology device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive technology device;
c. a person who may enforce the warranty; or
d. a person who leases an assistive technology device from an assistive technology device lessor under a written lease.
(7) “Demonstrator” means an assistive technology device used primarily for the purpose of demonstration to the public.
(8) “Early termination cost” means an expense or obligation that an assistive technology device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to the manufacturer. The term includes a penalty for prepayment under a finance arrangement.
(9) “Early termination savings” means an expense or obligation that an assistive technology device lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to a manufacturer. The term includes an interest charge that the assistive technology device lessor would have paid to finance the assistive technology device or, if the assistive technology device lessor does not finance the assistive technology device, the difference between the total period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
(10) “An individual with disabilities” means a person who has one or more physical or mental impairments that restrict or limit his or her ability to perform activities of daily living or limit his or her capacity to live independently.
(11) “Manufacturer” means a person who manufactures or assembles assistive technology devices and agents of that person, including any importer, distributor, factory branch, distributor branch, or a warrantor of the manufacturer’s assistive technology device. The term does not include an assistive technology device dealer or lessor, unless the manufacturer acts directly as an assistive technology dealer or lessor.
(12) “Nonconformity” means a specific or generic condition, defect, or malfunction that substantially impairs the use, value, or safety of an assistive technology device.
(13) “Reasonable attempt to repair” means any of the following occurring within the term of an express warranty applicable to a new assistive technology device:
a. the consumer tenders the assistive technology device to the manufacturer, assistive technology device lessor, or any of the manufacturer’s authorized assistive technology device dealers for repair at least two times; or
b. the assistive technology device is out of service for an aggregate of at least 30 cumulative days because of a warranty nonconformity.
§ 5002B. Express warranties.
(a) A manufacturer who sells or leases a new assistive technology device to a consumer, either directly or through an assistive technology device dealer or lessor, shall furnish the consumer with an express warranty that the assistive technology device will be free from any defect or condition that substantially impairs the use, value or safety of the assistive technology device. The duration of the express warranty must not be less than one year after first possession of the assistive technology device by the consumer. The duration of the express warranty shall be reasonably extended by any period of time during which repair services or replacement parts are not available to the consumer because of a war, invasion, or strike, fire, flood, or other natural disaster.
(b) If a new assistive technology device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive technology device lessor, or any of the manufacturer’s authorized assistive technology device dealers and makes the assistive technology device available for repair before one year after first possession of the device by the consumer, the nonconformity must be repaired or replaced at no cost to the consumer.
(c) If a manufacturer fails to furnish an express warranty as required by this section, the assistive technology device shall be covered by an express warranty as if the manufacturer had furnished an express warranty to the consumer as required by this section.
(d) A manufacturer may provide any express warranty in addition to the express warranty required by this section; provided, however, that no term of any additional express warranty is inconsistent with, or in any way limits the applicability of, the warranty required by this section.
§ 5003B. Notice to consumer.
At the time of purchase the manufacturer must provide directly to the consumer a statement, written in 10-point all capital type on a separate piece of paper or in such other form as the consumer can understand, in substantially the following form: “IMPORTANT: IF THIS DEVICE IS DEFECTIVE, YOU MAY BE ENTITLED UNDER STATE LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE. HOWEVER, TO BE ENTITLED TO REFUND OR REPLACEMENT, YOU MUST FIRST NOTIFY THE MANUFACTURER, ITS AGENT OR ITS AUTHORIZED DEALER OF THE PROBLEM AND GIVE THEM AN OPPORTUNITY TO REPAIR THE DEVICE IN ACCORDANCE WITH TITLE 6, CHAPTER 50B.”
§ 5004B. Replacement or refund.
(a) If, after a reasonable attempt to repair, a nonconformity is not repaired, the manufacturer shall, at the direction of the consumer, do one of the following:
(1) accept return of the assistive technology device and within 30 days refund to the consumer and to a holder of a perfected security interest in the consumer’s assistive technology device, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale and collateral costs; or
(2) accept return of the assistive technology device, refund to the assistive technology device lessor and to a holder of a perfected security interest in the assistive technology device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus collateral costs; or
(3) accept return of the assistive technology device upon delivery to the consumer of a comparable new assistive technology device.
(b) To receive a comparable new assistive technology device, a consumer shall offer to transfer possession of the nonconforming assistive technology device to the manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new assistive technology device. When the manufacturer provides the new assistive technology device, the consumer shall return the assistive technology device having the nonconformity to the manufacturer, at the manufacturer’s expense, along with any endorsements necessary to transfer real possession to the manufacturer.
(c) For the purposes of this section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive technology device dealer’s early termination costs and the value of the assistive technology device at the lease expiration date if the lease sets forth that value, less the assistive technology device lessor’s early termination savings.
(d) No person may enforce the lease against the consumer after the consumer receives a refund.
§ 5005B. Nonconformity disclosure requirement.
No assistive technology device returned by a consumer or assistive technology device lessor in this state or another state may be sold or leased in this state unless full disclosure of the reason for return is made to a prospective buyer or lessee.
§ 5006B. Availability of other remedies; waivers void; additional relief.
(e) This Chapter does not limit rights or remedies which are otherwise available under any uniform commercial code, consumer protection statute, or any other applicable law or regulation.
(f) A waiver of rights by a consumer under this Chapter is void.
(g) In addition to pursuing other remedies, a consumer may bring an action to recover damages for any damages caused by a violation of this Chapter. The court shall award a consumer who prevails in the action twice the amount of any pecuniary loss, together with costs, disbursements, reasonable attorneys fees, and any equitable relief that the court may determine is appropriate.
§ 5007B. Replacement during repair; reimbursement of rental costs incurred by consumer; penalties.
(a) Whenever an assistive technology device covered by a manufacturer’s express warranty is tendered by a consumer to the manufacturer, assistive technology lessor, or authorized assistive technology dealer from whom it was purchased or exchanged for the repair of a defect, malfunction, or nonconformity to which the warranty is applicable and at least one of the following conditions exists, the manufacturer shall provide directly to the consumer for the duration of the repair period, a replacement assistive technology device or reimbursement for the cost incurred by the consumer for renting a replacement assistive technology device. The applicable conditions are as follows:
(1) the repair period exceeds ten working days, including the day on which the device is tendered to the dealer for repair; or
(2) the defect, malfunction, or nonconformity is the same for which the assistive technology device has been tendered to the dealer for repair on at least two previous occasions.
(b) This section applies for the duration of the manufacturer’s express warranty and any extension thereof.”
Approved June 29, 2004