H 3686 Session 111 (1995-1996)
H 3686 General Bill, By J.M. Baxley, Allison, D.W. Beatty, C.D. Chamblee,
Clyburn, Davenport, Fleming, J. Hines, Lanford, Littlejohn, C.V. Marchbanks,
Neilson, Spearman, Townsend, Trotter, Walker and C.C. Wells
Similar(S 544)
A Bill 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 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.
02/23/95 House Introduced and read first time HJ-28
02/23/95 House Referred to Committee on Labor, Commerce and
Industry HJ-29
A BILL
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:
"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 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.
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