H 4460 Session 112 (1997-1998)
H 4460 General Bill, By Cato
Similar(S 893)
A BILL TO AMEND TITLE 39, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
TRADE AND COMMERCE, BY ADDING CHAPTER 54, SO AS TO ENACT THE "ASSISTIVE
TECHNOLOGY WARRANTY ACT" WHICH PROVIDES FOR THE MANNER IN WHICH ASSISTIVE
TECHNOLOGY DEVICES SHALL BE MARKETED, REPAIRED, MAINTAINED, AND REPLACED IF
REQUIRED, AND WHICH GRANTS TO CONSUMERS CERTAIN CAUSES OF ACTION TO RECOVER
DAMAGES CAUSED BY A VIOLATION OF THIS ACT.
01/21/98 House Introduced and read first time HJ-4
01/21/98 House Referred to Committee on Labor, Commerce and
Industry HJ-5
A BILL
TO AMEND TITLE 39, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO TRADE AND COMMERCE,
BY ADDING CHAPTER 54, SO AS TO ENACT THE "ASSISTIVE
TECHNOLOGY WARRANTY ACT" WHICH PROVIDES FOR
THE MANNER IN WHICH ASSISTIVE TECHNOLOGY
DEVICES SHALL BE MARKETED, REPAIRED, MAINTAINED,
AND REPLACED IF REQUIRED, AND WHICH GRANTS TO
CONSUMERS CERTAIN CAUSES OF ACTION TO RECOVER
DAMAGES CAUSED BY A VIOLATION OF THIS ACT.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 39 of the 1976 Code is amended by adding:
"CHAPTER 54
Assistive Technology Warranty Act
Section 39-54-10. This chapter may be cited as the 'Assistive
Technology Warranty Act'.
Section 39-54-20. As used in this chapter:
(1) 'Assistive technology device' or 'device' means an item or
piece of equipment or product system with a retail cost to a consumer
of three hundred dollars or more that a consumer purchases or accepts
transfer of in this State which is used to increase, maintain, or
improve the functional capacities of an individual with a disability.
'Assistive technology device' or 'device' includes, but is not limited
to, manual wheelchairs, motorized wheelchairs, motorized scooters,
and other mobility aids for moving, walking, standing, sitting, and
positioning; telephone communication devices for the hearing
impaired; augmentative communication devices; assistive listening
devices and other aids that enhance an individual's ability to hear;
voice synthesized computer modules, optical scanners, talking
software, Braille printers, and other devices that enhance a
sight-impaired individual's ability to communicate; home and
workplace modifications, prosthetics, and orthotics; and any other
assistive device that enables a person with a disability to
communicate, see, hear, or maneuver;
(2) 'Assistive technology device dealer' means a person who is in
the business of selling assistive technology devices.
(3) 'Assistive technology device lessor' means a person who leases
an assistive technology device to a consumer or who holds the
lessor's rights under a written lease.
(4) 'Collateral costs' means expenses incurred by a consumer in
connection with the repair of a nonconformity, including the costs of
obtaining an alternative assistive technology device if not already
provided for in the warranty.
(5) 'Consumer' means an individual or a public or private agency
including, but not limited to, a school district:
(a) who purchases an assistive technology device from an
assistive technology device dealer or manufacturer for purposes other
than resale;
(b) 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) who may enforce the warranty; or
(d) who leases an assistive technology device from an assistive
technology device lessor under a written lease.
'Consumer' also means the parent or guardian of a person who is a
consumer under subitems (a) through (d).
(6) 'Demonstrator' means an assistive technology device used
primarily for the purpose of demonstration to the public.
(7) '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 a
manufacturer under Section 39-54-40(B(2). 'Early termination cost'
includes a penalty for prepayment under a finance arrangement.
(8) '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 under Section 39-54-40(B)(2). 'Early termination
savings' 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
amount for which the lease obligates the consumer during the period
of the lease term remaining after the early termination and the present
value of that amount at the date of the early termination.
(9) 'Loaner' means an assistive device, provided free of charge to
the consumer, for use by the consumer, while the original assistive
technology device is being repaired, that need not be new, identical
to, or have functional capabilities equal to or greater than those of the
original assistive device, but that meets all of the following
conditions:
(a) The loaner is in good working order.
(b) The loaner performs, at a minimum, the most essential
functions of the original assistive device, in light of the disabilities of
the consumer.
(c) Any differences between the loaner and the original assistive
device do not create a threat to the consumer's health or safety.
(10) 'Manufacturer' means a person and any agent of that person
who manufactures or assembles assistive technology devices.
'Manufacturer' includes an importer, a distributor, factory branch,
distributor branch, and warrantor of the manufacturer's assistive
technology devices, but does not include an assistive technology
device dealer or assistive technology device lessor.
(11) 'Nonconformity' means a condition or defect that substantially
impairs the use, value, or safety of an assistive technology device and
that is covered by an express warranty applicable to the assistive
technology device or to a component of the assistive technology
device. 'Nonconformity' does not include a condition or defect that
is the result of a consumer's abuse, neglect, or unauthorized
modification or alteration of the assistive technology device.
(12) 'Reasonable attempt to repair' means if within the term of an
express warranty applicable to a new assistive technology device or
within one year after first delivery of the assistive technology device
to a consumer, whichever is sooner:
(a) any nonconformity within the warranty is subject to repair
at least two times for any reason by the manufacturer, assistive
technology device lessor, or any of the manufacturer's authorized
assistive technology device dealers for continuous nonconformity of
the product; or
(b) the assistive technology device is out of service for an
aggregate of at least thirty days because of warranty nonconformities.
Section 39-54-30. A manufacturer who sells an assistive
technology device to a consumer, either directly or through an
assistive technology device dealer, shall furnish the consumer with
an express written warranty for the assistive technology device. At
a minimum, the warranty shall guarantee that there are no defects in
parts or performance. The duration of the express written warranty
must be not less than one year after the first delivery of the assistive
technology device to the consumer. In the absence of an express
written warranty from the manufacturer, the assistive technology
device shall be considered to have been expressly warranted by the
manufacturer as if the manufacturer had explicitly furnished the
warranty to the consumer as required by this section. All other
requirements in this section shall govern the product that is statutorily
considered expressly warranted.
Section 39-54-40. (A) If an assistive technology device does not
conform to an applicable express warranty, and the consumer:
(1) reports the nonconformity to the manufacturer, the assistive
technology device lessor, or any of the manufacturer's authorized
assistive technology device dealers and
(2) makes the assistive technology device available for repair
before one year after first delivery of the assistive technology device
to the consumer, the nonconformity must be repaired at the
manufacturer's expense to correct the nonconformity regardless of
whether the repairs are made after expiration of the warranty rights
period. If in any subsequent proceeding it is determined that the
repair did not qualify under this chapter, and the manufacturer was
not otherwise obligated to repair the assistive technology device, the
consumer is liable to the manufacturer for costs of repair actually
made by the manufacturer.
(B) If after a reasonable attempt to repair, the nonconformity is not
repaired, the manufacturer shall accept return of the assistive
technology device and:
(1) at the direction of a consumer, as defined in Section
39-54-20(5)(a), (b), or (c), the manufacturer shall do one of the
following:
(a) replace the assistive technology device with a comparable
assistive technology device and refund collateral costs; or
(b) refund to the consumer and to any holder of a perfected
security interest in the consumer's assistive technology device, as
their interest may appear, the full purchase price paid plus any
finance charges, the amount paid by the consumer at the point of sale,
and collateral costs; or
(2) at the direction of a consumer, as defined in Section
39-54-20(5)(d), the manufacturer shall do the following:
(a) refund to the assistive technology device lessor and to any
holder of a perfected security interest in the assistive technology
device, as their interest may appear, the current value of the written
lease. For purposes of this subitem, 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; and
(b) return to the consumer the amount the consumer paid
under the written lease plus collateral costs.
(C) To receive a comparable new assistive technology device or a
refund due under subsection (B)(1), a consumer, as defined in Section
39-54-20(5)(a), (b), or (c), shall offer to transfer possession of the
assistive technology device having the nonconformity to the
manufacturer of that assistive technology device. No later than thirty
days after that offer, the manufacturer shall provide the consumer
with a comparable new assistive technology device or a refund.
When the manufacturer provides the new assistive technology device
or refund, the consumer shall return the assistive technology device
having the nonconformity to the manufacturer, along with any
endorsements necessary to transfer legal possession to the
manufacturer. A consumer transferring possession of an assistive
technology device under this subsection shall transfer possession in
the same manner and method that the consumer obtained the device,
and if the nonconformity occurs within the warranty period the
manufacturer shall bear the cost of transferring possession of the
device.
(D) To receive a refund due under subsection (B)(2):
(1) a consumer, as defined in Section 39-54-20(5)(d), shall offer
to return the assistive technology device having the nonconformity
to the manufacturer of that assistive technology device. No later than
thirty days after that offer, the manufacturer shall provide the refund
to the consumer. When the manufacturer provides the refund, the
consumer shall return the assistive technology device having the
nonconformity to the manufacturer; or
(2) an assistive technology device lessor, as defined in Section
39-54-20(3) shall offer to transfer possession of the assistive
technology device having the nonconformity to the manufacturer of
that assistive technology device. No later than thirty days after that
offer, the manufacturer shall provide the refund to the assistive
technology device lessor. When the manufacturer provides the
refund, the assistive technology device lessor shall provide any
endorsements necessary to transfer legal possession to the
manufacturer and all costs due to the consumer as defined in Section
39-54-20(5)(d).
No person may enforce the lease against the consumer after the
consumer receives the refund due under subsection (B)(2).
(E) No assistive technology device returned by a consumer or
assistive technology device lessor in this State under subsection (B)
or by a consumer or assistive technology device lessor in another
state under a similar law of that state may be sold or leased again in
this State unless full disclosure of the reasons for return is made to a
prospective buyer or lessee.
Section 39-54-50. (A) This chapter must not be considered to
limit rights or remedies available to a consumer under any other law
or contract.
(B) A waiver by a consumer of rights under this chapter is void.
(C) In addition to pursuing another remedy, a consumer may bring
an action to recover for damages caused by a violation of this
chapter. The court shall award a consumer who prevails in the action
twice the amount of pecuniary loss together with costs,
disbursements, and reasonable attorney fees and any equitable relief
that the court determines is appropriate."
SECTION 2. This act takes effect upon approval by the Governor
and applies only to assistive technology devices sold or leased after
its effective date.
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