Current Status Bill Number:544 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19950221 Primary Sponsor:Lander All Sponsors:Lander, Setzler, Matthews and Giese Drafted Document Number:br1\18029ac.95 Companion Bill Number:3686 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Assistive Technology Warranty Act
Body Date Action Description Com Leg Involved
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Senate 19950221 Introduced, read first time, 11 SJ
referred to Committee
View additional legislative information at the LPITS web site.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 54 TO TITLE 39 SO AS TO ENACT THE "ASSISTIVE TECHNOLOGY WARRANTY ACT"; TO DEFINE TERMS; TO PROVIDE FOR EXPRESS WARRANTIES; TO PROVIDE FOR THE DURATION OF THE WARRANTIES; TO PROVIDE FOR REPAIR OF NONCONFORMITIES; TO PROVIDE FOR RETURN AND REPLACEMENT OF ASSISTIVE TECHNOLOGY DEVICES; TO PROVIDE FOR PROCEDURES FOR RETURN OF NONCONFORMING ASSISTIVE TECHNOLOGY DEVICES; TO PROVIDE FOR CALCULATION OF REFUNDS OWING TO CONSUMERS AND SECURITY INTEREST HOLDERS; TO PROVIDE PROCEDURES AND REQUIREMENTS FOR TRANSFERRING REAL AND LEGAL POSSESSION OF A NONCONFORMING ASSISTIVE TECHNOLOGY DEVICE FROM THE CONSUMER TO THE MANUFACTURER; TO PROHIBIT RESALE OF RETURNED NONCONFORMING ASSISTIVE TECHNOLOGY DEVICES WITHOUT FULL DISCLOSURE; TO PROVIDE FOR THE RETURN OR REPLACEMENT OF ASSISTIVE TECHNOLOGY DEVICES RECOMMENDED BY THE ASSISTIVE TECHNOLOGY DEVICE MANUFACTURER OR DEALER IF THE DEVICE DOES NOT MEET THE NEEDS OF THE PERSON WITH A DISABILITY; TO PROVIDE THAT THIS CHAPTER DOES NOT LIMIT ANY OTHER RIGHTS OR REMEDIES AVAILABLE TO THE CONSUMER; TO PROVIDE THAT ANY WAIVER OF A CONSUMER'S RIGHTS UNDER THIS CHAPTER IS VOID; TO AUTHORIZE CONSUMER ACTIONS FOR DAMAGES, FEES, COSTS, AND EQUITABLE RELIEF.
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:
Section 39-54-10. This chapter may be cited as the `Assistive Technology Warranty Act'.
Section 39-54-20. As used in this article:
(1) `Assistive technology device' or `device' means an item or piece of equipment or product system with a retail cost to a consumer of five hundred dollars or more whether acquired commercially, off the shelf, modified, or customized that is used to increase, maintain, or improve the functional capacities of an individual with a disability including, but not limited to, aids for daily living, including breathing, augmentative communication devices for sending and receiving communications, wheelchairs, and mobility aids for moving, walking, and standing, seating and positioning aids, computer aids, environmental controls, home and workplace modifications, prosthetics and orthotics, or aids for vision or hearing impairments.
(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 or other device used for mobility assistance.
(5) `Consumer' means a person who or a public or private agency including, but not limited to, a school district which:
(a) purchases an assistive technology device if the device was purchased 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) may enforce the warranty; or
(d) leases an assistive technology device from an assistive technology device lessor under a written lease.
(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) `Manufacturer' means a person and agents of that person who manufacture or assemble assistive technology devices including an importer, a distributor, factory branch, distributor branch, and warrantors of the manufacturer's assistive technology devices. `Manufacturer' does not include an assistive technology device dealer.
(10) `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 abuse, neglect, or unauthorized modification or alteration of the assistive technology device by a consumer.
(11) `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) the same nonconformity with the warranty is subject to repair at least four times by the manufacturer, assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers and the nonconformity continues; 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. The warranty as a minimum shall warrant that there are no defects in parts or performance. The duration of the express written warranty must be not less than one year after first delivery of the assistive technology device to the consumer. If a manufacturer fails to furnish an express written warranty as required by this section, the assistive technology device must be covered by an express warranty as if the manufacturer had furnished an express written warranty to the consumer as required by this section.
Section 39-54-40. (A) 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 delivery of the assistive technology device to a 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 consumer's 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.
(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), shall:
(a) replace the assistive technology device with a comparable new assistive technology device and refund collateral costs; or
(b) 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 finance charges, the amount paid by the consumer at the point of sale, and collateral costs, less a reasonable allowance for use. For purposes of this subitem, a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive technology device by a fraction with the denominator one thousand eight hundred twenty-five and the numerator the number of days that the assistive technology device was used before the consumer first reported the nonconformity to the assistive technology device dealer; or
(2) at the direction of a consumer, as defined in Section 39-54-20(5)(d), refund to the:
(a) 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. 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) consumer the amount the consumer paid under the written lease plus collateral costs, less a reasonable allowance for use. For purposes of this subitem, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount of which the written lease obligates the consumer by a fraction, the denominator of which is one thousand eight hundred twenty-five and the numerator of which is the number of days that the consumer used the assistive technology device before first reporting the nonconformity to the manufacturer, assistive technology device lessor, or assistive technology device dealer.
(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;
(2) an assistive technology device lessor 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.
No person may enforce the lease against the consumer after the consumer receives a 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 manufacturer or assistive technology device dealer who recommends and sells an assistive technology device to a consumer shall accept a return of the assistive technology device within thirty days after the purchase if the assistive technology device does not meet the needs of the person with the disability. The manufacturer or assistive technology dealer shall provide a refund in conformity with the provisions established within Section 39-54-40(B)(1).
Section 39-54-60. (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.