PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-15-079.
Title of Rule: WAC 44-10-010 Definitions, 44-10-170 Powers and duties of arbitrators, and 44-10-200 The arbitration decision.
Purpose: New Motor Vehicle Warranties Act, chapter 19.118 RCW, amend chapter 44-10 WAC to implement chapter 298, Laws of 1998. Make editorial and minor procedural revisions to reflect attorney general resale disclosure forms.
Statutory Authority for Adoption: RCW 19.118.080(2), 19.118.061, and section 6, chapter 298, Laws of 1998.
Statute Being Implemented: Chapter 19.118 RCW and section 6, chapter 298, Laws of 1998.
Summary: Change definition of "Lemon Law resale disclosure" to reflect the current use of a combined disclosure, certification of repair and disclosure manufacturer warranty form. Identify authority and procedures of an arbitrator to distribute motor home manufacturer liability pursuant to section 6, chapter 298, Laws of 1998, regarding motor homes purchased after June 30, 1998.
Reasons Supporting Proposal: Conform rules to 1998 statutory revisions, make editorial modifications and minor procedural changes in practices of the attorney general and arbitration board. Purpose is to accomplish reasoned and predictable procedures for the administration of the Lemon Law program, the dispute resolution mechanism, consistency in arbitration decisions, compliance with arbitration awards and enforcement of statutory disclosures upon resale of subject vehicles.
Name of Agency Personnel Responsible for Drafting and Implementation: Paul N. Corning, Seattle, (206) 464-6372; and Enforcement: H. Regina Cullen, Seattle, (206) 464-6261.
Name of Proponent: Washington Attorney General's Office, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Proposal Changes the Following Existing Rules: WAC 44-10-010 Definitions.
| • | Modify format of "definitions" to current standard. |
| • | Add "settlement" to "Lemon Law resale windshield display" to update to current procedures and clarify the disclosure requirement. |
| • | Delete "notice of correction and warranty" and add repair and warranty disclosure to "Lemon Law resale disclosure" to reduce paperwork and increase effectiveness of disclosure procedure; updates to reflect current procedure of using a single multi-purpose disclosure resale form. |
| • | Update to reflect section 6, chapter 298, Laws of 1998. |
| • | Update to reflect section 6, chapter 298, Laws of 1998, and establish procedures and standards for an arbitrator to distribute liability for an arbitration award among manufacturers of motor homes sold after June 30, 1998. |
No small business economic impact statement has been prepared under chapter 19.85 RCW. Because the changes are designed to increase clarity and efficiencies, the agency expects this rule to have no negative small business impact. For a copy of the complete economic compliance document or summary, please contact Paul N. Corning, Lemon Law Administrator, 900 Fourth Avenue, Suite 2000, Seattle, WA 98164-1012.
RCW 34.05.328 does not apply to this rule adoption. Pursuant to RCW 34.05.328 (5)(a), the section does not apply to this rule adoption and this agency is not required to comply with this section.
Hearing Location: Attorney General's Office, 900 4th Avenue, Suite 2000, Seattle, WA 98164-1012, on November 2, 1999, at 9:30 a.m.
Assistance for Persons with Disabilities: Contact Paul N. Corning by November 2, 1999, TDD (206) 464-7293, or (206) 464-6372.
Submit Written Comments to: Paul N. Corning, fax (206) 464-6451, by November 1, 1999.
Date of Intended Adoption: November 2, 1999.
September 17, 1999
Paul N. Corning
Lemon Law Administrator
OTS-3371.1
AMENDATORY SECTION(Amending WSR 96-03-155, filed 1/24/96,
effective 2/24/96)
WAC 44-10-010
Definitions.
Terms, when used in this chapter, shall have the same meaning as terms used in chapter 19.118 RCW. The following definitions shall supplement or aid in the interpretation of the definitions set forth in chapter 19.118 RCW.
(((1) The phrase)) "Arbitration special master" means the
individual or group of individuals selected by the board to hear
and decide special issues timely brought before the board ((by
the parties)).
(((2) The terms)) "Attorney general" or "attorney general's
office" means the person duly elected to serve as attorney
general of the state of Washington and delegates authorized to
act on his or her behalf.
(((3) The phrase)) "Intervening transferor" means any person
or entity which receives, buys or otherwise transfers the
returned new motor vehicle prior to the first retail transfer,
sale or lease subsequent to being repurchased or replaced by the
manufacturer.
(((4) The phrase)) "Lemon Law resale documents" refers to
the following:
(((a))) (1) "Lemon Law resale windshield display" means a
document created and provided by the attorney general which
identifies that: (((i))) (a) The vehicle was reacquired by the
manufacturer after a determination, settlement or adjudication of
a dispute; (((ii))) (b) the vehicle has one or more
nonconformities or serious safety defects, or was out-of-service
thirty or more days due to diagnosis or repair of one or more
nonconformities; and (((iii))) (c) the defects or conditions
causing the vehicle to be reacquired by the manufacturer.
(((b))) (2) "Lemon Law resale disclosure": Means a document
created and provided by the attorney general which identifies
that: (((i))) (a) The vehicle was reacquired by the manufacturer
after a settlement, determination or adjudication of a dispute;
(((ii))) (b) the vehicle has one or more nonconformities or
serious safety defects, or was out-of-service thirty or more days
due to diagnosis or repair of one or more nonconformities; and
(((iii))) (c) the defects or conditions causing the vehicle to be
reacquired by the manufacturer. The document will provide space
for the manufacturer to indicate if each nonconformity or serious
safety defect has been corrected and is warranted by the
manufacturer.
(((c) "Notice of correction and warranty" means a document
created and provided by the attorney general which identifies
each nonconformity or serious safety defect which was the basis
of the settlement, determination or adjudication of the dispute. The document will provide space for the manufacturer to indicate
whether each nonconformity or serious safety defect has been
corrected and is warranted by the manufacturer.
(d))) (3) "Notice of out-of-state disposition of a reacquired vehicle" refers to a document created and provided by the attorney general which requires the manufacturer, agent or dealer to identify the destination state and the dealer, auction, other person or entity to whom the manufacturer sells or otherwise transfers the reacquired vehicle when the vehicle is taken to another state for any disposition, including: resale, transfer or destruction.
(((5) The term)) "Person" includes every natural person,
firm, partnership, corporation, association, or organization.
(((6))) "Settlement" means the resolution of a dispute,
under chapter 19.118 RCW, between the consumer and manufacturer
after the new motor vehicle arbitration board has accepted the
consumer's request for arbitration and which results in the
manufacturer reacquiring the new motor vehicle directly or
indirectly through an agent or a motor vehicle dealer.
(((7))) "Similar law of another state" refers to the law of
another state which creates remedies for a manufacturer's failure
to conform a vehicle to its warranty and under which the vehicle
was reacquired by the manufacturer.
[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-010, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 92-11-037, § 44-10-010, filed 5/18/92, effective 6/18/92. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-010, filed 12/22/87.]
(1) Arbitrators shall have the duty to conduct fair and impartial hearings, to take all necessary actions to avoid delay in the disposition of proceedings, to maintain order, and to meet the sixty day time frame required by RCW 19.118.090 for the rendering of a decision. They shall have all powers necessary to meet these ends including, but not limited to, the power:
(a) To consider any and all evidence offered by the parties which the arbitrator deems necessary to an understanding and determination of the dispute;
(b) To regulate the course of the hearings and the conduct of the parties, their representatives and witnesses;
(c) To schedule vehicle inspection by the technical experts, if deemed necessary, at such time and place as the arbitrator determines;
(d) To continue the arbitration hearing to a subsequent date if, at the initial hearing, the arbitrator determines that additional information is necessary in order to render a fair and accurate decision. Such continuance shall be held within ten calendar days of the initial hearing;
(e) To impose sanctions for failure of a party to comply with a subpoena pursuant to RCW 19.118.080 (2)(b);
(f) To calculate and order the joint and several liability for compliance obligations of motor home manufacturers as part of an arbitration decision when ordering repurchase or replacement of a new motor vehicle.
(2) The board shall maintain an adequate pool of trained arbitrators and is responsible for the assignment of arbitrators to arbitration hearings. The selection and assignment of arbitrators is not subject to the approval of either party.
(3) Arbitrators must not have a personal interest in the outcome of any hearing, nor be acquainted with any of the participants except as such acquaintance may occur in the hearing process, nor hold any prejudice toward any party. Arbitrators shall not be directly involved in the manufacture, distribution, sale, or warranty service of any motor vehicle. Arbitrators shall maintain their impartiality throughout the course of the arbitration proceedings.
(a) An arbitrator shall sign a written oath prior to the commencement of each arbitration hearing to which he or she has been assigned, attesting to his or her impartiality in that case.
(b) There shall be no direct communication between the parties and the arbitrators other than at the arbitration hearing. Any other oral or written communications between the parties and the arbitrators shall be channeled through the board. Any prohibited contact shall be reported by the arbitrators to the board and noted in the case record.
[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-170, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-170, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-170, filed 12/22/87.]
(1) The arbitration board shall send the decision to the parties in each case within sixty calendar days of acceptance of the request for arbitration:
(a) All decisions shall be written, in a form to be provided by the attorney general, dated and signed by the arbitrator, and sent by certified mail to the parties;
(b) The date of mailing of the arbitration decision shall determine compliance with the sixty day requirement to issue an arbitration decision;
(c) The written decision shall contain findings of fact and conclusions of law as to whether the motor vehicle meets the statutory standards for refund or replacement;
(i) If the consumer prevails and has elected repurchase of the vehicle, the decision shall include the statutory calculations used to determine the monetary award;
(ii) If the consumer prevails and has elected replacement of the vehicle, the decision shall identify or describe a reasonably equivalent replacement vehicle and any refundable incidental costs;
(iii) If the consumer prevails and the manufacturer is represented by counsel, the decision shall include a description of the awarded reasonable costs and attorneys' fees incurred by the consumer in connection with board proceedings.
Reasonable costs and attorneys' fees shall be determined by the arbitrator based on an affidavit of costs and fees prepared by the consumer's attorney and submitted no later than the conclusion of the arbitration hearing. The affidavit may be amended for post-hearing costs and fees. The amended affidavit of costs and fees must be delivered to the manufacturer's designated representative by certified mail or personal service and a copy submitted to the arbitration board by the consumer's attorney within thirty days of the consumer's acceptance of the decision but in no case after a manufacturer's compliance with a decision.
(2) Upon request of a party, an arbitrator shall make factual findings and modify the offset total where the wear and tear on those portions of the motor home designated, used, or maintained primarily as a mobile dwelling, office, or commercial space is significantly greater or significantly less than that which could be reasonably expected based on the mileage attributable to the consumer's use of the motor home in an arbitration decision awarding repurchase or replacement of a new motor vehicle originally purchased or leased at retail after June 30, 1998. An arbitrator will consider the actual amount of time that portions of the motor home were in use as dwelling, office or commercial space. The arbitrator shall not consider wear and tear resulting from:
(a) Defects in materials or workmanship in the manufacture of the motor home including the dwelling, office or commercial space;
(b) Reasonable modifications; or
(c) Repairs.
The modification to the reasonable offset for use may not result in the addition or reduction of the offset for use calculation by more than one-third. The modification shall be specified as a percentage for reduction or addition to the offset calculation. The modification to the reasonable offset for use shall apply to the offset calculation at the time of repurchase or replacement of the motor home.
(3) An arbitrator shall assign joint and several liability to a motor home manufacturer in an arbitration decision awarding repurchase or replacement of a new motor vehicle originally purchased or leased at retail after June 30, 1998, based on findings of sixty or more days out of service due to diagnosis or repair of one or more nonconformities to which other motor home manufacturers contributed attempts to diagnose or repair, or based on findings of existing nonconformities and serious safety defects. When calculating the distribution of liability for compliance obligations of motor home manufacturers the arbitrator's calculation shall specify the minimum contribution percentage for each liable motor home manufacturer of the total compliance obligation.
A motor home manufacturer may present testimony and other evidence regarding compliance liability at the conclusion of the arbitration hearing. To the extent that terms are specific and complete, an arbitrator shall include in the arbitration decision the terms for liability distribution of compliance obligations that have been agreed to and proposed by the liable motor home manufacturers.
In assigning joint and several liability to a motor home manufacturer an arbitrator shall specify that the lack of compliance, late or delayed compliance, or the filing of an appeal by a liable motor home manufacturer shall not affect the obligation of another liable motor home manufacturer to independently comply with the arbitration decision except where the findings do not meet the requirements of RCW 19.118.041(3) for independent liability by the manufacturer.
(4) Included with the copy of the arbitration decision sent to the consumer shall be a form to be completed by the consumer, indicating acceptance or rejection of the decision. The board shall forward general information to the consumer explaining the consumer's right to appeal the decision to superior court. The consumer must return the form to the board within sixty calendar days from the date of the consumer's receipt of the decision.
(((3))) (5) The consumer shall have one hundred twenty
calendar days from the date of the rejection of the decision to
file a petition of appeal in superior court. At the time of
filing an appeal, the consumer shall deliver by certified mail or
by personal service a conformed copy of the petition to the
attorney general.
(((4))) (6) If the consumer accepts a decision which awards
repurchase or replacement, the board shall send a copy of the
form completed by the consumer indicating acceptance by certified
mail to the manufacturer and shall include a manufacturer's
intent form.
A verification of compliance form shall be sent to the consumer by the attorney general's office. The verification of compliance form shall be completed and returned to the attorney general by the consumer upon the manufacturer's compliance with the decision.
[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-200, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 90-19-024, § 44-10-200, filed 9/11/90, effective 10/12/90. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-200, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-200, filed 2/3/88.]