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 9  AN ACT concerning motor vehicles; relating to consumer protection;
10    amending K.S.A. 50-651 and K.S.A. 1996 Supp. 50-645 and repealing
11    the existing sections.
12
13  Be it enacted by the Legislature of the State of Kansas:
14    New Section 1.  (a) For purposes of this section:
15    (1)  ``Consumer'' means any individual or sole proprietor who requests
16  repair work or an estimate of repair work on a motor vehicle;
17    (2)  ``final estimate'' means the last estimate approved by the con-
18  sumer either in writing or orally, as evidenced by the written repair es-
19  timate;
20    (3)  ``motor vehicle'' means a motor vehicle which is registered for a
21  gross weight of 16,000 pounds or less, but does not include a recreational
22  vehicle as defined by subsection (f) of K.S.A. 75-1212, and amendments
23  thereto.
24    (4)  ``motor vehicle repair shop'' means any person or business which,
25  for compensation, engages in repairing, servicing or maintaining motor
26  vehicles owned by other persons and includes, but is not limited to, new
27  car dealers, used car dealers, garages, service stations, self-employed in-
28  dividuals, truck stops, machine shops, tire dealers, department stores,
29  retailers, paint and body shops, brake, muffler or transmission shops, and
30  shops doing upholstery or glass work;
31    (5)  ``repair work'' includes mechanical repairs, alterations and main-
32  tenance services and any diagnostic work incident thereto, including, but
33  not limited to, body work, painting, warranty work and other work cus-
34  tomarily undertaken by motor vehicle repair shops, but does not include
35  towing services.
36    (b)  Unless expressly waived in writing by the consumer as provided
37  in paragraph (c), when any consumer requests a motor vehicle repair shop
38  to perform repair work on a motor vehicle, the charge for which will
39  exceed $150, excluding sales tax, the shop shall prepare a written repair
40  estimate, which is a form setting forth the estimated charge for repair
41  work, including diagnostic work, before effecting any diagnostic work or
42  repair. The written repair estimate shall include the following items:
43    (1)  The name, address and telephone number of the motor vehicle
SB 266
                                     

 1  repair shop;
 2    (2)  the name, address and telephone number of the consumer;
 3    (3)  the date and time of the written repair estimate;
 4    (4)  the year, make, model, odometer reading and license plate num-
 5  ber of the motor vehicle;
 6    (5)  a general description of the consumer's problem or request for
 7  repair work or service relating to the motor vehicle;
 8    (6)  the estimated charge for repair work or the charge for performing
 9  diagnostic work if a repair price estimate cannot be predetermined;
10    (7)  the charge for making a repair price estimate;
11    (8)  the name and telephone number of another person who may au-
12  thorize repair work, if the consumer desires to designate such person;
13    (9)  a statement indicating what, if anything, is guaranteed in connec-
14  tion with the repair work and the time and mileage period for which the
15  guarantee is effective;
16    (10)  a statement allowing the consumer to indicate whether replaced
17  parts should be saved for inspection or return, until the motor vehicle is
18  delivered to the consumer;
19    (11)  a statement indicating the daily charge for storing the consumer's
20  motor vehicle after the consumer has been notified that the repair work
21  has been completed. However, no storage charges shall accrue or be due
22  and payable for a period of three working days from the date of such
23  notification.
24    (c)  If the charge for repair work will exceed $150, the motor vehicle
25  repair shop shall present to the consumer a written notice conspicuously
26  disclosing in a separate, blocked section, only the following statement, in
27  capital letters of at least 10-point boldface type:
28    PLEASE READ CAREFULLY, CHECK ONE OF THE STATEMENTS BELOW,
29  AND SIGN:
30    I UNDERSTAND THAT, UNLESS WAIVED BELOW, UNDER STATE LAW I AM
31  ENTITLED TO A WRITTEN ESTIMATE IF MY FINAL BILL WILL EXCEED $150.
32    ______  I REQUEST A WRITTEN ESTIMATE
33    ______  I DO NOT REQUEST A WRITTEN ESTIMATE AS LONG AS THE REPAIR
34  CHARGES DO NOT EXCEED $____________. THE SHOP MAY NOT EXCEED THIS
35  AMOUNT WITHOUT MY WRITTEN OR ORAL APPROVAL.
36    ______  I DO NOT REQUEST A WRITTEN ESTIMATE.
37    SIGNED ______________________________
38    DATE ______________________________
39    (d)  The information required by paragraphs (6) and (7) of subsection
40    (b) need not be provided if the consumer waives in writing such consu-
41  mer's right to receive a written estimate.
42    (e)  Except as provided in subsection (f), a copy of the written repair
43  estimate required by subsection (b) and the disclosure statement required
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 1  by subsection (c) shall be given to the consumer before repair work is
 2  begun.
 3    (f)  If the consumer leaves such consumer's motor vehicle at a motor
 4  vehicle repair shop during hours when the shop is not open or if the
 5  consumer permits the shop or another person to deliver the motor vehicle
 6  to a motor vehicle repair shop, there shall be an implied partial waiver of
 7  the written estimate; except that, upon completion of diagnostic work
 8  necessary to estimate the charge for repair, the motor vehicle repair shop
 9  shall promptly notify the consumer as required in subsection (g).
10    (g) (1)  In the event that:
11    (A)  The written repair estimate contains only an estimate for diag-
12  nostic work necessary to estimate the charges for repair work and such
13  diagnostic work has been completed;
14    (B)  a determination is made by a motor vehicle repair shop that the
15  actual charges for the repair work will exceed the written estimate by
16  more than 10%; or
17    (C) an implied partial waiver exists for diagnostic work, as described in
18  subsection (f), and such diagnostic work has been completed, the con-
19  sumer shall be promptly notified by telephone, telegraph, mail or other
20  means of the additional repair work and estimated charges thereof. A
21  consumer so notified shall, orally or in writing, authorize, modify or cancel
22  the order for repair.
23    (2)  If additional repair work or charges are authorized by the con-
24  sumer in accordance with paragraph (1) of subsection (g), the shop shall
25  legibly note such authorization on the written repair estimate. Such no-
26  tations shall specify the date and time of authorization and shall also
27  contain the additional amount of money authorized by the consumer to
28  be spent on the repairs, the name of the person who received the au-
29  thorization, the name of the person who made the authorization and a
30  description of the additional work authorized.
31    (3)  If a consumer cancels the order for repair after being advised that
32  a repair which the consumer has authorized cannot be accomplished
33  within the previously authorized estimate, the shop shall expeditiously
34  reassemble the motor vehicle in a condition reasonably similar to the
35  condition in which it was received unless:
36    (A)  The consumer waives reassembly; or
37    (B)  the reassembled vehicle would be unsafe.
38    After cancellation of the repair order, the shop may charge for the cost
39  of teardown, the cost of parts and labor to replace items that were de-
40  stroyed by teardown, and the cost to reassemble the component or the
41  vehicle.
42    (4)  The motor vehicle repair shop shall not charge more than the
43  written estimate plus 10%, unless the motor vehicle repair shop has ob-
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 1  tained authorization to exceed the written estimate in accordance with
 2  paragraph (1) of subsection (g).
 3    (5)  Upon request made at the time the repair work is authorized by
 4  the consumer, the consumer is entitled to inspect parts removed from
 5  the vehicle or, if the shop has no warranty arrangement or exchange parts
 6  program with a manufacturer, supplier, or distributor, have the parts re-
 7  turned to the consumer.
 8    (h)  Nothing in this section shall be construed to require a motor ve-
 9  hicle repair shop to give a written estimated price if the motor vehicle
10  repair shop does not agree to perform the requested repair.
11    (i) Any violation of this section is a deceptive and unconscionable act
12  or practice under the Kansas consumer protection act.
13    (j)  This section shall be a part of and supplemental to the Kansas
14  consumer protection act.
15    New Sec. 2.  (a) For purposes of this section:
16    (1)  ``Actual cash value'' means the market value of a motor vehicle as
17  determined from publications commonly used by the automotive, finan-
18  cial or insurance industries to establish the retail value of motor vehicles;
19    (2)  ``motor vehicle'' means a motor vehicle with a model year equal
20  to the then current calendar year or one of the five preceding calender
21  years and is registered for a gross weight of 16,000 pounds or 1ess;
22    (3)  ``person'' means any individual, firm, corporation, company, part-
23  nership or other entity; and
24    (4)  ``salvageable motor vehicle'' means a motor vehicle which has
25  been wrecked, damaged or destroyed to the extent that the total esti-
26  mated or actual costs of parts and labor to rebuild or reconstruct the
27  motor vehicle to its preaccident condition exceeds 75% of the actual cash
28  value of the vehicle.
29    (b)  No person shall sell, exchange or transfer a motor vehicle without
30  first disclosing in writing, prior to consummating the sale, exchange or
31  transfer, the fact that the motor vehicle was previously a salvageable mo-
32  tor vehicle.
33    (c)  It shall not be a volation of this section if the person can dem-
34  onstrate:
35    (1)  The person made a reasonable effort and a reasonable inspection
36  to discover prior damage to the motor vehicle, but did not discover such
37  prior damage; and
38    (2)  the person did not know or have reason to know the motor vehicle
39  was previously a salvageable motor vehicle.
40    (d)  Any violation of this section is a deceptive act or practice under
41  the Kansas consumer protection act.
42    (e)  This section shall be a part of and supplemental to the Kansas
43  consumer protection act.
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 1    New Sec. 3.  (a) The failure of a manufacturer to comply with the
 2  requirements of K.S.A. 8-2507, and amendments thereto, shall constitute
 3  an unconscionable act or practice under the Kansas consumer protection
 4  act.
 5    (b)  This section shall be a part of and supplemental to the Kansas
 6  consumer protection act.
 7    Sec. 4.  K.S.A. 1996 Supp. 50-645 is hereby amended to read as fol-
 8  lows: 50-645. (a) As used in this act:
 9    (1)  ``Consumer'' means the original purchaser or lessee, other than
10  for purposes of resale, of a motor vehicle; and
11    (2)  ``motor vehicle'' means a new motor vehicle which is sold or leased
12  in this state, and which is registered for a gross weight of 12,000 16,000
13  pounds or less, and does not include the customized parts of motor ve-
14  hicles which have been added or modified by second stage manufacturers,
15  first stage converters or second stage converters as defined in K.S.A. 8-
16  2401, and amendments thereto.
17    (b)  If a motor vehicle does not conform to all applicable warranties,
18  and the consumer reports the nonconformity to the manufacturer, its
19  agent or its authorized dealer during the term of any warranties or during
20  the period of one year following the date of original delivery of the motor
21  vehicle to a consumer, whichever is the earlier date, the manufacturer,
22  its agent or its authorized dealer shall make such repairs as are necessary
23  to conform the vehicle to such warranties, notwithstanding the fact that
24  such repairs are made after the expiration of any such term or such one-
25  year period.
26    (c)  If the manufacturer, or its agents or authorized dealers, are unable
27  to conform the motor vehicle to any applicable warranty after a reasonable
28  number of attempts, the manufacturer, at the consumer's option shall
29  replace the motor vehicle with a comparable motor vehicle under war-
30  ranty or accept return of the vehicle from the consumer and refund to
31  the consumer the full purchase or lease price including all collateral
32  charges, less a reasonable allowance for the consumer's use of the vehicle
33  as calculated from the most recent edition of Your Driving Costs, pub-
34  lished by the American automobile association.
35    The reasonable allowance for use shall be calculated as follows:
36  [eu2,5]Reasonable allowance  =  [su1]Purchase price  +  collateral charges x miles driven[xu120,000 miles
37  Refunds shall be made to the consumer, and lienholder if any, as their
38  interests may appear. A reasonable allowance for use The miles driven
39  shall be that amount those miles directly attributable to use by the con-
40  sumer and any previous consumer prior to the first report of the noncon-
41  formity to the manufacturer, agent or dealer and during any subsequent
42  period when the vehicle is not out of service by reason of repair. It shall
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 1  be an affirmative defense to any claim under this act that:
 2    (1)  An alleged nonconformity does not substantially impair such use
 3  and value; or
 4    (2)  a nonconformity is the result of abuse, neglect or unauthorized
 5  modifications or alterations of a motor vehicle by a consumer.
 6    (d)  If the manufacturer receives actual notice of the nonconformity,
 7  it shall be presumed that a reasonable number of attempts have been
 8  undertaken to conform a motor vehicle to the applicable warranties, if:
 9    (1)  The same nonconformity which substantially impairs the use and
10  value of the motor vehicle to the consumer has been subject to repair
11  four or more times by the manufacturer or its agents or authorized dealers
12  within the term of any warranty or during the period of one year following
13  the date of original delivery of the motor vehicle to a consumer, whichever
14  is the earlier date, but such nonconformity continues to exist;
15    (2)  the vehicle is out of service by reason of repair for a cumulative
16  total of 30 or more calendar days during such term or period, whichever
17  is the earlier date; or
18    (3)  there have been 10 or more attempts to repair any nonconform-
19  ities which substantially impair the use and value of the motor vehicle to
20  the consumer and such attempts to repair have been attempts by the
21  manufacturer or its agents or authorized dealers.
22    The term of any warranty, such one-year period and such thirty-day
23  period shall be extended by any period of time during which repair serv-
24  ices are not available to the consumer because of war, invasion, strike,
25  fire, flood or other natural disaster.
26    (e)  If a manufacturer has established an informal dispute settlement
27  procedure which complies in all respects with the provisions of title 16,
28  code of federal regulations, part 703, as from time to time amended, the
29  provisions of subsection (c) concerning refunds or replacement shall not
30  apply to any consumer who has not first resorted to such procedure.
31    (f)  The attorney general shall have jurisdiction to enforce this section
32  Any violation of this section by a manufacturer is an unconscionable act
33  or practice under the Kansas consumer protection act.
34    (g)  This section shall be part of and supplemental to the Kansas con-
35  sumer protection act.
36    Sec. 5.  K.S.A. 50-651 is hereby amended to read as follows: 50-651.
37    (a) The commission of any act or practice declared to be a violation of
38  K.S.A. 21-3757 or K.S.A. 50-653, and amendments thereto, shall make
39  the violator liable to the aggrieved consumer, or to the state, for the
40  following:
41    (1)  Payment of a civil penalty, recoverable in an individual action or
42  in an action brought by the attorney general in a sum set by the court of
43  not more than $2,000 $10,000 per violation; and
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 1    (2)  reasonable expenses and investigation fees incurred by the attor-
 2  ney general.
 3    (b)  The remedies provided in subsection (a) are in addition to any
 4  remedies available under federal odometer law.
 5    Sec. 6.  K.S.A. 50-651 and K.S.A. 1996 Supp. 50-645 are hereby re-
 6  pealed.
 7    Sec. 7.  This act shall take effect and be in force from and after its
 8  publication in the statute book.