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H.B. 358 Enrolled

    

CONSUMER WARRANTIES ON ASSISTIVE TECHNOLOGY

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Fred R. Hunsaker

    Patrice Arent




    AN ACT RELATING TO THE UNIFORM COMMERCIAL CODE; CREATING THE
    ASSISTIVE TECHNOLOGY WARRANTY ACT; PROVIDING DEFINITIONS;
    PROVIDING WARRANTIES FOR SALE OR LEASE OF ASSISTIVE TECHNOLOGY;
    PROVIDING REMEDIES FOR NONCONFORMING ASSISTIVE TECHNOLOGY;
    PROVIDING FOR REFUNDS AND THEIR COMPUTATION; PROTECTING THE
    CONSUMER FROM LEASE ENFORCEMENT IN CASES OF REFUND;
    PROHIBITING RESALE OR RELEASE OF RETURNED TECHNOLOGY;
    PROHIBITING WAIVER OF CONSUMER RIGHTS; PROVIDING ENFORCEMENT
    PROVISIONS; PRESERVING OTHER REMEDIES; AND PROVIDING AN
    EFFECTIVE DATE.
    This act affects sections of Utah Code Annotated 1953 as follows:
    ENACTS:
         70A-2-801, Utah Code Annotated 1953
         70A-2-802, Utah Code Annotated 1953
         70A-2-803, Utah Code Annotated 1953
         70A-2-804, Utah Code Annotated 1953
         70A-2-805, Utah Code Annotated 1953
         70A-2-806, Utah Code Annotated 1953
         70A-2-807, Utah Code Annotated 1953
         70A-2a-534, Utah Code Annotated 1953
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 70A-2-801 is enacted to read:
    
Part 8. Assistive Technology Warranty Act

         70A-2-801. Title.


        This part is known as the "Assistive Technology Warranty Act."
        Section 2. Section 70A-2-802 is enacted to read:
         70A-2-802. Definitions.
        As used in this chapter:
        (1) "Assistive technology" means any new device or equipment, including a demonstrator,
    with a retail price of $1,000 or more, which is used for a major life activity including breathing,
    walking, standing, speaking, hearing, seeing, communicating, learning, working, performing manual
    tasks, or caring for oneself.
        (a) Assistive technology includes:
        (i) manual wheelchairs, motorized wheelchairs, motorized scooters, and other aids that
    enhance the mobility of an individual;
        (ii) hearing aids, telephone communication devices for the deaf (TDD), assistive listening
    devices, and other aids that enhance an individual's ability to hear or communicate; and
        (iii) voice-synthesized computer modules, optical scanners, talking software, braille printers,
    and other devices that enhance an individual's ability to access print or communicate.
        (b) Assistive technology does not include batteries, nonfunctional accessories, and normal
    recurring maintenance needs.
        (2) "Collateral costs" means expenses incurred by a consumer in connection with the repair
    of a nonconformity, including the cost of sales tax and of obtaining alternative assistive technology.
        (3) "Consumer" means any person including a public agency or other private organization,
    who acquires assistive technology on behalf of or for the benefit of an individual who:
        (a) purchases assistive technology from a manufacturer, its agent, or authorized dealer for
    purposes other than resale;
        (b) obtains or otherwise receives assistive technology for purposes other than resale, but only
    if the transfer occurs before the expiration of any applicable express warranties;
        (c) possesses the right to enforce the warranty; or
        (d) leases assistive technology from an authorized lessor under a written lease.
        (4) "Dealer" means a person who is in the business of selling assistive technology.

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        (5) "Demonstrator" means assistive technology used primarily for the purpose of
    demonstration to the public.
        (6) "Disbursements" means the amount of money consumers may receive as part of a
    damage award based upon the pro rata share of investment by the consumers.
        (7) "Early termination cost" means any expense or obligation that a 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 the assistive technology to the manufacturer. Early termination cost includes a penalty for
    prepayment under a finance arrangement.
        (8) "Early termination savings" means any expense or obligation that a 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 assistive technology to a manufacturer which shall include an interest charge that the
    lessor would have paid to finance the assistive technology or, if the lessor does not finance the
    assistive technology, the difference between the total 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) "Lease price" means the total amount for which the written lease obligates the consumer.
        (10) "Lessee" means a person who leases assistive technology as a consumer under a written
    lease.
        (11) "Lessor" means a person who leases assistive technology to consumers or who holds
    the lessor's rights under a written lease.
        (12) "Manufacturer" means a person who manufactures or assembles assistive technology
    including agents of that person, an importer, a distributor, a factory branch, distributor branch, and
    any warrantors of the manufacturer's assistive technology, but does not include a dealer or lessor of
    assistive technology.
        (13) "Nonconformity" means any defect, condition, or malfunction which substantially
    impairs the use, value, or safety of assistive technology, but does not include a condition, defect, or
    malfunction that is the result of abuse, neglect, or unauthorized modification or alternation of the
    assistive technology by the consumer.
        Section 3. Section 70A-2-803 is enacted to read:

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         70A-2-803. Warranties.
        (1) A manufacturer who sells or leases assistive technology to a consumer in this state, either
    directly or through an authorized dealer or lessor, shall warrant that the assistive technology shall
    be free from any condition, defect, or malfunction which substantially impairs the use, value, or
    safety of the assistive technology for a period of one year from the date of original delivery.
        (2) Nothing in this chapter shall limit the ability of the manufacturer or any dealer or lessor
    from providing additional warranties on assistive technology nor limit or affect any other warranties
    applicable to assistive technology, whether implied or expressed.
        Section 4. Section 70A-2-804 is enacted to read:
         70A-2-804. Nonconforming assistive technology -- Remedies.
        (1) If assistive technology does not conform to any applicable warranties, and the consumer
    reports the nonconformity to the manufacturer, its agent, or authorized dealer or lessor within one
    year from the date of original delivery to the consumer, the manufacturer, its agent, or authorized
    dealer or lessor shall make repairs necessary to conform the assistive technology to the warranties,
    whether or not the repairs are made after one year from the date of original delivery. Repairs made
    under warranty shall be at no charge to the consumer.
        (2) After a reasonable attempt to repair the assistive technology, if the manufacturer, its
    agent, or authorized dealer or lessor is unable to conform the assistive technology to applicable
    warranties by repairing or correcting any defect, condition, or malfunction that substantially impairs
    the use, value, or safety of the assistive technology, the manufacturer shall, within 30 days of notice
    from and at the direction of the consumer:
        (a) replace the assistive technology with comparable new assistive technology and refund
    any collateral costs; or
        (b) accept return of the assistive technology and refund the full purchase price, collateral
    costs, and any finance charges paid at the point of sale, less a reasonable allowance for the use of the
    assistive technology.
        (3) A "reasonable attempt to repair" has been made to conform assistive technology to
    applicable warranties if:

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        (a) the assistive technology has been subject to repair three or more times, for the same
    reason, by the manufacturer, its agent, or authorized dealer or lessor; or
        (b) the assistive technology is out of service to the consumer for an aggregate of 30 or more
    calendar days because of warranty nonconformities. The 30 days shall begin upon the day the
    consumer first makes the assistive technology available for repair to the manufacturer, its agent, or
    authorized dealer or lessor.
        Section 5. Section 70A-2-805 is enacted to read:
         70A-2-805. Refunds -- Computation -- Prohibition of enforcement of lease against
     consumer.
        (1) Refunds paid by the manufacturer shall be made to the consumer, any lessor, and any
    perfected lienholders as their interests may appear in order of priority.
        (2) A reasonable allowance for use may not exceed the amount obtained by multiplying the
    full purchase price or lease price of the assistive technology by a fraction, the denominator of which
    is 1,825 and the numerator of which is the number of days the consumer used the assistive
    technology before first reporting the nonconformity to the manufacturer, its agent, or authorized
    dealer or lessor.
        (3) (a) For a consumer who leases assistive technology from a lessor, the manufacturer shall
    refund to the lessor and to any holder of a perfected security interest in the assistive technology, as
    the interest may appear, the current value of the written lease.
        (b) 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 dealer's early termination costs and the value of the assistive technology at the
    lease expiration date if the lease sets forth that value, less the assistive technology lessor's early
    termination savings.
        (c) The manufacturer shall refund to the consumer the amount that the consumer paid under
    the lease plus any collateral costs, less a reasonable allowance for use.
        (4) The lease may not be enforced against the consumer if the consumer receives a refund
    under this chapter.

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        Section 6. Section 70A-2-806 is enacted to read:
         70A-2-806. Resale or release of returned assistive technology -- Prohibition.
        Assistive technology which is replaced by a manufacturer under this chapter or under a
    similar law of another state may not be sold or leased again in this state unless full written disclosure
    of the reason for return is made to any prospective purchaser or lessee.
        Section 7. Section 70A-2-807 is enacted to read:
         70A-2-807. Consumer may not waive rights under chapter -- Enforcement -- Remedies
     not exclusive.
        (1) Any waiver by a consumer of rights under this chapter is void.
        (2) (a) A consumer may bring an action in district court to enforce the consumer's rights
    under this chapter.
        (b) The court shall award a consumer who prevails in an action under this chapter twice the
    amount of any pecuniary loss, together with costs, disbursements, reasonable attorney's fees, and any
    equitable relief that the court determines is appropriate.
        (3) The attorney general may file an action in district court to enforce this chapter on behalf
    of any consumer or in its own behalf. In addition to the other remedies provided in this chapter, the
    attorney general is also entitled to an award for reasonable attorney's fees, court costs, and
    investigative expenses.
        (4) This chapter shall not be construed as imposing any liability on an authorized dealer or
    lessor or as creating a cause of action by a consumer against a dealer or lessor, except regarding any
    express warranties made by the dealer or lessor apart from the manufacturer's warranties.
        (5) Nothing in this chapter shall limit or impair the rights or remedies which are otherwise
    available to a consumer under any other provision of law.
        Section 8. Section 70A-2a-534 is enacted to read:
         70A-2a-534. Other remedies.
        In addition to the rights and remedies provided for lease agreements and lease disputes in this
    chapter, a consumer, dealer, lessee, lessor, and manufacturer of assistive technology as defined in
    Section 70A-2-802 may exercise rights and seek remedies pursuant to any lease agreement under

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    Title 70A, Chapter 2, Part 8, Assistive Technology Warranty Act, as limited by Subsections
    70A-2-805(4) and 70A-5-807(4).
        Section 9. Effective date.
        This act takes effect on July 1, 1997.

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