By Michael J. Deem, Esq.
I can’t say that New Jersey does a lot of things right, but I have to admit that our consumer protection laws are some of the best in the country.
When dealing with motorized wheelchairs a “consumer” is defined as the purchaser of the motorized wheelchair, if the motorized wheelchair was purchased from a motorized wheelchair dealer or manufacturer for purposes other than resale. A “consumer” is also a person to whom the motorized wheelchair is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motorized wheelchair.
A manufacturer who sells a motorized wheelchair to a “consumer”, either directly or through a motorized wheelchair dealer, shall furnish the consumer with an express (written) warranty for the motorized wheelchair. The duration of the express warranty shall be at least one year. In the event the consumer does not receive the express warranty then the manufacturer shall be deemed to have expressly warranted to the consumer that, for a period of one year from the date of the first delivery to the consumer, the motorized wheelchair will be free from any condition or defect which substantially impairs the value of the wheelchair to the consumer.
If the wheelchair has what is called a “Nonconformity” this means that a condition or defect substantially impairs the use, value or safety of the motorized wheelchair, and that is covered by an express warranty. A “Nonconformity” does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the motorized wheelchair by the consumer.
If a new motorized wheelchair does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the wheelchair lessor or any of the manufacturer’s authorized dealers and makes the wheelchair available for repair before one year after first delivery of the wheelchair to a consumer then the nonconformity shall be repaired at no charge to the consumer by the manufacturer. However, the consumer must provide the manufacturer a reasonable attempt to repair the wheelchair.
“Reasonable attempt to repair” means, within the term of an express warranty applicable, or within one year after first delivery of the wheelchair to the consumer, whichever is sooner, that: (1) the wheelchair has been in for repair three or more times and the nonconformity continues, or (2) the motorized wheelchair is out of service for an aggregate of at least 20 days due to a nonconformity after having been returned to the manufacturer, wheelchair lessor, or any of the manufacturer’s authorized dealers for repair.
If, after a reasonable attempt to repair, the nonconformity is not repaired then the manufacturer shall, at the direction of a consumer (other than a consumer who leases a motorized wheelchair from a motorized wheelchair dealer), either (1) accept return of the wheelchair and replace the wheelchair with a comparable new one and refund any collateral costs; or (2) accept return of the wheelchair and refund to the consumer and to any holder of a Note on the wheelchair the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.
In order to receive a comparable new motorized wheelchair or a refund a consumer shall offer to transfer possession of the defective wheelchair to the manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motorized wheelchair or a refund. When the manufacturer provides the new motorized wheelchair or refund, the consumer shall return the defective wheelchair to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer.
In order to receive a refund a consumer shall: (a) offer to return the defective wheelchair to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the wheelchair; and (b) offer to transfer possession of the wheelchair to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motorized wheelchair lessor. When the manufacturer provides the refund, the motorized wheelchair lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
Also, keep in mind that any lease of a motorized wheelchair shall not be enforceable after the consumer receives a refund for the leased motorized wheelchair.
No motorized wheelchair returned by a consumer or motorized wheelchair lessor in this State or by a consumer or motorized wheelchair lessor in another state shall be sold or leased again in this New Jersey unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
The consumer litigation attorneys at the Law Offices of R.C. Shea & Associates are available for a free consultation (732-505-1212) to discuss your rights.