Current through Register 1531, September 27, 2024
(1) All
decisions shall be in writing, dated and signed by the arbitrator, and mailed
to both parties and the arbitration firm.
(2) The arbitrator may make an oral decision
at the hearing but it shall not be binding until a written decision is mailed,
and shall not be used to determine compliance with any time-sensitive
deadlines. The arbitrator's decision is final.
(3) The full written decision shall contain a
summary of the evidence presented, a finding of facts, a conclusion of whether
the motor vehicle meets the standards for refund or replacement (new cars
only), a clear calculation of the monetary award if the vehicle meets such
standards, and an order if appropriate.
(4) The arbitrator shall mail a decision in
each case within 45 days of the acceptance date stamped on the request for
arbitration form. Failure to mail the decision within such time period, or to
hold the hearing within 44 days of acceptance of the request for arbitration,
shall not invalidate the decision.
(5) The date of mailing of the decision,
shall determine compliance with the 45 day requirement and be the date used to
calculate appeal deadlines.
(6) The
arbitrator's decision shall only determine whether the motor vehicle does or
does not meet the standards for refund or replacement (new cars
only).
(7) Any monetary award for
new vehicle arbitration shall be calculated in accordance with M.G. L. c. 90,
§ 7N1/2, but may be affected by any previous awards or settlements
made to the consumer.
(8) The
consumer shall be reimbursed for all continuing costs upon return of the
defective vehicle if the consumer has previously submitted documentation to the
manufacturer and the arbitration firm that such costs have been
accrued.
(9) The arbitrator shall
make the following findings with respect to new motor vehicles:
(a) As long as the arbitrator determines
that:
1. The nonconformity(s) complained of
substantially impairs the use, market value, or safety of the vehicle;
and
2. The consumer gave the
manufacturer or dealer a reasonable number of attempts to repair the vehicle as
defined in M.G.L. c. 90, § 7N1/2(4), and
3. That all other requirements of M.G.L. c.
90, § 7N1/2 have been met, the arbitrator must find for the consumer,
and order the manufacturer to make a refund or replacement at the consumer's
option within 21 days of the finding in favor of the consumer.
(b) Indetermining compliance with
201 CMR 11.11(9)(a) the arbitrator shall consider the entirety of the
circumstances in each case, including but not limited to one or more of the
following:
1. whether the motor vehicle's
market value is at least 10% lower than it would have been but for the
nonconformity(s);
2. How seriously
the nonconformity(s) interferes with the consumer's use of the motor vehicle;
and
3. Whether the nonconformity(s)
creates or has the potential to create a substantial danger to occupants,
others, or to property; provided however, that evidence that the
nonconformity(s) can be repaired given an additional attempt(s) subsequent to
the hearing shall not be taken into consideration by the arbitrator in
determining whether the vehicle is substantially impaired.
(10) The arbitrator shall make the
following findings with respect to used motor vehicles:
(a) As long as the arbitrator determines
that:
1. The defect(s) complained of impairs
the safety or use of the vehicle;
2. A defect continued to exist or recurred
during the warranty period after three repair attempts for the same defect or a
cumulative total of more than ten business days out of service after being
returned for repair; and
3. That
all other requirements of M.G.L. c. 90, § 7N1/4 and
201 CMR 11.00 have been met,
the arbitrator must find for the consumer, and order the dealer to refund the
full repurchase amount within 21 days. The arbitrator may not, under any
circumstances, order a partial refund or any relief other than a full
refund.
(b) In
determining compliance with 201 CMR 11.11(10)(a)(1) the arbitrator shall
consider the entirety of the circumstances in each case, including but not
limited to one or more of the following:
1.
Whether the defect(s) interferes with the consumer's use of the motor vehicle;
and
2. Whether the defect(s)
creates or has the potential to create a danger to occupants, others, or to
property.
(11) The calculation for the Repurchase
Amount for used motor vehicles is as follows:
(a) If a dealer is required to or elects to
repurchase a vehicle pursuant to M.G.L. c. 90, § 7N1/4, he shall pay
to the consumer the full repurchase amount, less a reasonable allowance for
use.
(b) The repurchase amount
shall be calculated by adding the following:
1. the full purchase price of the vehicle,
including amounts allowed for any trade-in vehicle;
2. finance charges;
3. registration fees;
4. the payments made for credit life and
credit accident and health insurance;
5. the pro rata cost of motor vehicle damage,
collision and comprehensive insurance;
6. the payments made for any service
contract;
7. incidental damages
including, but not limited to, the following:
a. the reasonable costs of towing from the
point of breakdown up to 30 miles to obtain required repairs or to return the
vehicle to the dealer;
b. the
reasonable costs of obtaining alternative transportation during the warranty
period after the second day following each breakdown not to exceed $15.00 per
day;
c. the cost of all options
added by the dealer;
d. the cost of
all options not added by the dealer that cannot be removed without damage to
either the vehicle or the option;
e. amounts paid to the dealer or his designee
for repair of the vehicle;
f. the
amount of any arbitration application fee paid by the consumer.
8. Incidental damages do not
include the following:
a. attorneys'
fees;
b. excise tax;
c. lost wages; and
d. other consequential damages;
e. sales tax.
9. The consumer shall be reimbursed for all
continuing costs upon return of the defective vehicle if the consumer has
previously submitted documentation to the dealer and the arbitration firm that
such costs have been accrued.
(12) The repurchase amount for used vehicles
shall be further calculated by subtracting the following:
(a) any cash award that was made by the
dealer in an attempt to resolve the dispute and accepted by the
consumer;
(b) any refunds or
rebates to which the consumer is entitled;
(c) 15¢ for each mile the vehicle was
operated between its sale and the dealer's repurchase, other than miles the
vehicle was operated during repair attempts;
(d) the amount of any over allowance on a
trade-in vehicle if the amount of the over allowance and the actual cash value
of the trade-in vehicle are separately stated and identified as such on the
copy of the motor vehicle purchase contract or bill of sale or other document
given to the consumer prior to or at the time of sale; provided, however, that
the arbitrator may decrease the amount of the over allowance if the evidence
shows that the amount stated as the "actual cash value" on the document(s)
given the consumer is lower than the true cash value of the trade-in
vehicle.
(13) Rather
than paying to the consumer the amount allowed for the trade-in vehicle, the
dealer may return the trade-in vehicle itself, if the dealer still owns the
trade in vehicle, and if it has not suffered any damage and has not been driven
more than an incidental number of miles since the consumer traded it in. If the
dealer returns the trade-in vehicle, the amount of any over allowance shall not
be deducted from the repurchase amount.
