S*893 Session 112 (1997-1998)
S*0893(Rat #0415, Act #0403 of 1998) General Bill, By Lander and Reese
Similar(H 4460)
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 CREATE THE ASSISTIVE
TECHNOLOGY WARRANTY ACT, AND TO DEFINE THE TYPE OF SOLD OR LEASED DEVICE
SUBJECT TO THE EXPRESS WARRANTY, A "MANUFACTURER" FOR PURPOSES OF WARRANTING
THE DEVICES, AND A "NONCONFORMITY" THAT TRIGGERS THE PROTECTIONS AND REMEDIES
PURSUANT TO THE ACT.-AMENDED TITLE
12/15/97 Senate Prefiled
12/15/97 Senate Referred to Committee on Labor, Commerce and Industry
01/14/98 Senate Introduced and read first time SJ-27
01/14/98 Senate Referred to Committee on Labor, Commerce and
Industry SJ-27
03/12/98 Senate Committee report: Favorable with amendment Labor,
Commerce and Industry SJ-10
03/17/98 Senate Amended SJ-20
03/17/98 Senate Read second time SJ-20
03/17/98 Senate Ordered to third reading with notice of
amendments SJ-20
03/18/98 Senate Read third time and sent to House SJ-17
03/19/98 House Introduced and read first time HJ-3
03/19/98 House Referred to Committee on Labor, Commerce and
Industry HJ-3
04/22/98 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-5
04/28/98 House Debate adjourned until Wednesday, April 29, 1998 HJ-23
04/29/98 House Debate adjourned until Thursday, April 30, 1998 HJ-36
04/30/98 House Debate adjourned until Tuesday, May 5, 1998 HJ-12
05/05/98 House Debate adjourned until Wednesday, May 6, 1998 HJ-17
05/06/98 House Debate adjourned until Thursday, May 7, 1998 HJ-10
05/07/98 House Debate adjourned until Tuesday, May 12, 1998 HJ-9
05/12/98 House Debate adjourned until Wednesday, May 13, 1998 HJ-15
05/13/98 House Amended HJ-15
05/13/98 House Read second time HJ-16
05/14/98 House Read third time and returned to Senate with
amendments HJ-17
05/26/98 Senate Concurred in House amendment and enrolled SJ-8
06/04/98 Ratified R 415
06/08/98 Signed By Governor
06/08/98 Effective date This act takes effect upon
approval by the Governor and applies only to
assistive technology devices sold or leased
after 01/01/99
06/25/98 Copies available
06/30/98 Act No. 403
(A403, R415, S893)
AN ACT TO AMEND TITLE 39, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO TRADE AND COMMERCE, BY
ADDING CHAPTER 54, SO AS TO CREATE THE ASSISTIVE
TECHNOLOGY WARRANTY ACT, AND TO DEFINE THE TYPE OF
SOLD OR LEASED DEVICE SUBJECT TO THE EXPRESS
WARRANTY, A MANUFACTURER FOR PURPOSES OF
WARRANTING THE DEVICES, AND A "NONCONFORMITY"
THAT TRIGGERS THE PROTECTIONS AND REMEDIES
PURSUANT TO THE ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Assistive technology warranties
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, systems, 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, vehicle, and
workplace modifications, prosthetics, and orthotics; and any other
assistive device that enables a person with a disability to communicate,
see, hear, or maneuver. As used in this chapter, assistive technology
device or devices do not include contact lenses, glasses, or dental
prostheses.
(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. As used in this chapter, manufacturer does not include a
person licensed to provide healthcare services pursuant to Title 40, nor is
any warranty made, either express or implied, as a seller, or otherwise, of
products used in the delivery of healthcare services by persons licensed
to provide healthcare services pursuant to Title 40.
(11) 'Nonconformity' means a condition or defect that substantially
impairs the intended purpose 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, misuse, negligence, or unauthorized modification or
alteration of the assistive technology device. Nonconformity also does
not include a condition that can be resolved through routine fittings or a
condition wherein the consumer undergoes physical change which renders
the assistive technology device unsuitable for use by the consumer.
(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 that 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 will govern the product that is
statutorily considered expressly warranted. Assistive technology dealers
and lessors shall have the right to reimbursement or compensation from
the manufacturer or other prior parties in the sales or distribution chain.
It is expressly understood that assistive technology devices that are sold
in an 'as is' condition, and is so stated on the bill of sale, carry no warranty
unless one is specifically stated on the bill of sale.
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 39-54-60. This chapter does not apply to:
(1) Hearing aid specialists licensed to fit and sell hearing aids pursuant
to Chapter 25 of Title 40. Nothing in this chapter is in lieu of or shall
conflict with or supersede Chapter 25 of Title 40 and the rights of those
persons licensed under Chapter 25 of Title 40 or regulations promulgated
pursuant to Chapter 25 of Title 40.
(2) Speech pathologists and audiologists licensed to fit and dispense
hearing aids pursuant to Chapter 67 of Title 40. Nothing in this chapter
is in lieu of or shall conflict with or supersede Chapter 67 of Title 40 and
the rights of those persons licensed under Chapter 67 of Title 40 or
regulations promulgated pursuant to Chapter 67 of Title 40.
(3) Any medical device, surgical device, or organ implanted or
transplanted to the consumer."
Time effective
SECTION 2. This act takes effect upon approval by the Governor and
applies only to assistive technology devices sold or leased after January
1, 1999.
Approved the 8th day of June, 1998. |