Defective Assistive Device
Act or "Lemon Law" Statute
1996
§15-910. §15-910. This act
shall be known and may be cited as the "Defective Assistive Device
Act".
§15-910.1. A. As used in
the Defective Assistive Device Act: 1. "Assistive device" means any
device, including a demonstrator, that a consumer purchases or accepts transfer
of in this state which is used for a major life activity which includes, but is
not limited to: a. manual wheelchairs, motorized wheelchairs, motorized
scooters, and other aids that enhance the mobility of an individual, b. hearing
aids, telecommunications devices for the deaf (TDD), assistive listening
devices, and other aids that enhance an individual's ability to hear, c.
voice-synthesized computer modules, optical scanners, talking software, braille printers, and other devices that enhance a
sight-impaired individual's ability to communicate, and d. any other assistive
device that enables a person with a disability to communicate, see, hear, or
maneuver; 2. "Assistive device dealer" means a person who is in the
business of selling assistive devices; 3. "Assistive device lessor" means a person who leases an assistive 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 device; 5.
"Consumer" means any of the following: a. the purchaser of an
assistive device, if the assistive device was purchased from an assistive
device dealer or manufacturer for purposes other than resale, b. a person to
whom the assistive device is transferred for purposes other than resale, if the
transfer occurs before the expiration of an express warranty applicable to the
assistive device, c. a person who may enforce the warranty, or d. a person who
leases an assistive device from an assistive device lessor
under a written lease; 6. "Demonstrator" means an assistive device
used primarily for the purpose of demonstration to the public; 7. "Early
termination cost" means any expense or obligation that an assistive 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 device to a manufacturer pursuant to the Defective
Assistive Device Act. Early termination cost includes a penalty for prepayment
under a finance arrangement; 8. "Early termination saving" means any
expense or obligation that an assistive device lessor
avoids as a result of both the termination of a written lease before that
termination date set forth in that lease and the return of an assistive device
to a manufacturer pursuant to the Defective Assistive Device Act. Early
termination saving includes an interest charge that the assistive device lessor would have paid to finance the assistive device or,
if the assistive device lessor does not finance the
assistive 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 who manufactures or
assembles assistive devices and agents of that person, including an importer, a
distributor, factory branch, distributor branch and any warrantors of the
manufacturer's assistive device, but does not include an assistive device
dealer; 10. "Nonconformity" means a condition or defect that
substantially impairs the value or safety of an assistive device, and that is
covered by an express warranty applicable to the assistive device or to a
component of the assistive device, but does not include a condition or defect
that is the result of abuse, neglect or unauthorized modification or alteration
of the assistive device by a consumer; and 11. "Reasonable attempt to
repair" means within the terms of an express warranty applicable to a new
assistive device: a. any nonconformity within the warranty that is either
subject to repair by the manufacturer, assistive device lessor
or any of the manufacturer's authorized assistive device dealers for at least
four times, and a nonconformity continues, or b. the assistive device is out of
service for an aggregate of at least thirty (30) cumulative days because of
warranty nonconformity.
§15-910.2
A. A manufacturer who sells an assistive device to a
consumer, either directly or through an assistive device dealer, shall furnish
the consumer with an express warranty for the assistive device. The duration of
the express warranty shall be not less than one (1) year after first delivery
of the assistive device to the consumer. In the absence of an express warranty
from the manufacturer, the manufacturer shall be deemed to have expressly
warranted to the consumer of an assistive device that, for a period of one (1)
year from the date of first delivery to the consumer, the assistive device will
be free from any condition or defect which substantially impairs the value of
the assistive device to the consumer. B. If a new assistive device does not
conform to an applicable express warranty and the consumer reports the
nonconformity to the manufacturer, the assistive device lessor
or any of the manufacturer's authorized assistive device dealers and makes the
assistive device available for repair before one (1) year after return delivery
of the assistive device to a consumer, the nonconformity shall be repaired at
no charge to the consumer. C. If, after a reasonable attempt to repair, the
nonconformity is not repaired, the manufacturer shall carry out the requirement
set forth under Section 4 of this act.
§15-910.3. A. If, after a
reasonable attempt to repair, the nonconformity is not repaired, then at the
direction of a consumer described under subparagraph a, b or c of paragraph 5
of Section 2 of this act, the manufacturer shall do one of the following: 1.
Accept return of the assistive device and replace the assistive device with a
comparable new assistive device and refund any collateral costs; or 2. Accept
return of the assistive device and refund to the consumer and to any holder of
a perfected security interest in the consumer's assistive device, as their interest
may appear, 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. A reasonable allowance for use may not exceed the amount obtained by
multiplying the full purchase price of the assistive device by a fraction, the
denominator of which is one thousand eight hundred twenty-five (1,825) and the
numerator of which is the number of days that the assistive device was used
before the consumer first reported the nonconformity to the assistive device
dealer. B. 1. With respect to a consumer described under subparagraph d of
paragraph 5 of Section 2 of this act, accept return of the assistive device,
refund to the assistive device lessor and to any
holder of a perfected security interest in the assistive device, as their
interest may appear, the current value of the written lease and refund to the
consumer the amount that the consumer paid under the written lease plus any
collateral costs, less a reasonable allowance for use. 2. 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 device dealer's early termination costs and the value of the
assistive device at the lease expiration date if the lease sets forth that
value less the assistive device lessor's early
termination savings. 3. A reasonable allowance for use may not exceed the
amount obtained by multiplying the total amount for which the written lease
obligates the consumer by a fraction, the denominator of which is one thousand
eight hundred twenty-five (1,825) and the numerator of which is the number of
days that the consumer used the assistive device before first reporting the
nonconformity to the manufacturer, assistive device lessor
or assistive device dealer.
§15-910.4. A. To receive a
comparable new assistive device or a refund due under Section 4 of this act, a
consumer shall offer to the manufacturer of the assistive device having the
nonconformity to transfer possession of that assistive device to that
manufacturer. No later than thirty (30) days after that offer, the manufacturer
shall provide the consumer with the comparable assistive device or refund. When
the manufacturer provides the new assistive device or refund, the consumer
shall return the assistive device having the nonconformity to the manufacturer,
along with any endorsements necessary to transfer real possession to the
manufacturer. B. To receive a refund due under subsection B of Section 4 of
this act, a consumer described under subparagraph d of paragraph 5 of Section 2
of this act shall offer to return the assistive device having the nonconformity
to its manufacturer. No later than thirty (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 manufacturer the
assistive device having the nonconformity. C. To receive a refund due under
subsection B of Section 4 of this act, an assistive device lessor
shall offer to transfer possession of the assistive device having the
nonconformity to its manufacturer. No later than thirty (30) days after that
offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the
assistive device lessor shall provide to the
manufacturer any endorsements necessary to transfer legal possession to the
manufacturer. D. No person shall enforce the lease against the consumer after
the consumer receives a refund due under subsection B of Section 4 of this act.
E. No assistive device returned by a consumer or assistive device lessor in this state, or by a consumer or assistive 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 any prospective buyer or lessee.
§15-910.5. A. Each consumer
shall have the option of submitting any dispute arising under the Defective
Assistive Device Act to alternate arbitration, and all manufacturers shall
submit to such alternate arbitration pursuant to the Dispute Resolution Act,
Section 1801 et seq. of Title 12 of the Oklahoma Statutes. B. The Defective Assistive Device Act shall not be construed to
limit rights or remedies available to a consumer under any other law. C. Any
waiver by a consumer of rights under this section is void. D. In addition to
pursuing any other remedy, a consumer may bring an action to recover for any
damages caused by a violation of the Defective Assistive Device Act. The court
shall award a consumer who prevails in such an action twice the amount of any
pecuniary loss, together with costs, disbursements and reasonable attorney
fees, and any equitable relief that the court determines is appropriate.