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90_SB0053
New Act
Creates the Assistive Technology Warranty Act. Provides
that a manufacturer who sells an assistive device shall
furnish the consumer with an express warranty that the
assistive device will be free from any condition or defect
which substantially impairs the value of the assistive device
to the consumer. Provides that the consumer is entitled to a
refund from the manufacturer if the manufacturer fails to
repair the assistive device. Establishes procedures for
receiving a refund. Prohibits the resale or lease of an
assistive device returned by a consumer without full
disclosure of the reasons for the return. Provides that a
waiver of rights under this Act is void. Provides for
arbitration of disputes under this Act. Allows a court to
award damages caused by a violation of this Act.
LRB9001108MWpc
LRB9001108MWpc
1 AN ACT to create the Assistive Technology Warranty Act.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Assistive Technology Warranty Act.
6 Section 5. Definitions. As used in this Act:
7 "Assistive device" means any device, including a
8 demonstrator, that a consumer purchases, leases, or accepts
9 transfer of in this State that is used for a major life
10 activity which includes, but is not limited to, manual
11 wheelchairs, motorized wheelchairs, motorized scooters, and
12 other aides that enhance the mobility of an individual;
13 hearing aids, telephone communication devices for the deaf
14 (TTY), assistive listening devices, and other aids that
15 enhance an individual's ability to hear; voice synthesized
16 computer modules, optical scanners, talking software, braille
17 printers, and any other devices that enhance a sight impaired
18 individual's ability to communicate; and any other assistive
19 device that enables a person with a disability to
20 communicate, see, hear, or maneuver.
21 "Assistive device dealer" means a person who is in the
22 business of selling assistive devices.
23 "Assistive device lessor" means a person who leases an
24 assistive device to a consumer or who holds the lessor's
25 rights under a written lease.
26 "Collateral cost" means expenses incurred by a consumer
27 in connection with the repair of a nonconformity, including
28 the cost of obtaining an alternative assistive device.
29 "Consumer" means any of the following:
30 (1) the purchaser of an assistive device, if the device
31 was purchased from an assistive device dealer or manufacturer
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1 for purposes other than resale;
2 (2) a person to whom the assistive device is transferred
3 for purposes other than resale, if the transfer occurs before
4 the expiration of an express warranty applicable to the
5 assistive device;
6 (3) a person who may enforce the warranty; and
7 (4) a person who leases an assistive device from an
8 assistive device lessor under a written lease;
9 "Demonstrator" means an assistive device used primarily
10 for the purpose of demonstration to the public.
11 "Early termination cost" means any expense or obligation
12 that an assistive device lessor incurs as a result of both
13 the termination of a written lease before the termination
14 date set forth in that lease and the return of an assistive
15 device to a manufacturer under this Act. Early termination
16 cost includes a penalty for prepayment under a finance
17 arrangement.
18 "Early termination saving" means any expense or
19 obligation that an assistive device lessor avoids as a result
20 of both the termination of a written lease before the
21 termination date set forth in that lease and the return of an
22 assistive device to a manufacturer under this Act. Early
23 termination saving includes an interest charge that the
24 assistive device lessor would have paid to finance the
25 assistive device or, if the assistive device lessor does not
26 finance the assistive device, the difference between the
27 total amount for which the lease obligates the consumer
28 during the period of the lease remaining after the early
29 termination and the present value of that amount at the date
30 of the early termination.
31 "Manufacturer" means a person who manufactures or
32 assembles assistive devices and agents of that person,
33 including any importer, distributor, factory branch,
34 distributor branch, and warrantors of the manufacturer's
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1 assistive device, but does not include an assistive device
2 dealer.
3 "Nonconformity" means a condition or defect that
4 substantially impairs the use, value, or safety of an
5 assistive device, and that is covered by an express warranty
6 applicable to the assistive device or to a component of the
7 assistive device, but does not include a condition or defect
8 that is the result of abuse, neglect, or unauthorized
9 modification or alternation of the assistive device by a
10 consumer.
11 "Reasonable attempt to repair" means within the terms of
12 an express warranty applicable to a new assistive device:
13 (1) any nonconformity that is either subject to repair
14 by the manufacturer, assistive device lessor, or any of the
15 manufacturer's authorized assistive device dealers for at
16 least 4 times and the nonconformity continues; and
17 (2) the assistive device is out of service for an
18 aggregate of at least 30 cumulative days because of the
19 nonconformity.
20 Section 10. Express warranty.
21 (a) A manufacturer who sells an assistive device to a
22 consumer, either directly or through an assistive device
23 dealer, shall furnish the consumer with an express warranty
24 for the assistive device. The duration of the express
25 warranty shall be not less than one year after first delivery
26 of the assistive device to the consumer. In the absence of
27 an express warranty from the manufacturer, the manufacturer
28 shall warrant to the consumer of an assistive device that,
29 for a period of one year after the date of the first delivery
30 to the consumer, the assistive device will be free from any
31 condition or defect which substantially impairs the value of
32 the assistive device to the consumer.
33 (b) If a new assistive device does not conform to an
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1 applicable express warranty and the consumer reports the
2 nonconformity to the manufacturer, the assistive device
3 lessor, or any manufacturer's authorized assistive device
4 dealers and makes the assistive device available for repair
5 before one year after return delivery of the assistive device
6 to a consumer, the nonconformity shall be repaired at no
7 charge to the consumer.
8 (c) If, after a reasonable attempt, the nonconformity is
9 not repaired the manufacturer shall carry out the requirement
10 set forth under Section 15 of this Act.
11 Section 15. Failure to repair. If, after a reasonable
12 attempt, the nonconformity is not repaired, then at the
13 direction of a consumer the manufacturer shall do one of the
14 following:
15 (1) accept return of the assistive device and replace
16 the assistive device with a comparable new assistive device
17 and refund any collateral cost;
18 (2) accept return of the assistive device and refund to
19 the consumer and to any holder of a perfected security
20 interest in the consumer's assistive device the full purchase
21 price plus any finance charge amount paid by the consumer at
22 the point of sale and collateral costs, less a reasonable
23 allowance for use; or
24 (3) with respect to a consumer who leases an assistive
25 device from an assistive device lessor under a written lease,
26 accept return of the assistive device, refund to the
27 assistive device lessor and to any holder of a perfected
28 security interest in the assistive device the current value
29 of the written lease, and refund to the consumer the amount
30 that the consumer paid under the written lease plus any
31 collateral costs, less a reasonable allowance for use.
32 For purposes of this Section, the current value of the
33 written lease equals the total amount for which that lease
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1 obligates the consumer during the period of the lease
2 remaining after its early termination, plus the assistive
3 device dealer's early termination costs, and the value of the
4 assistive device at the lease expiration date if the lease
5 sets forth that value, less the assistive device lessor's
6 reasonable allowance for use.
7 For purposes of this Section, a reasonable allowance for
8 use may not exceed the amount obtained by multiplying the
9 total amount for which the written lease obligates the
10 consumer by a fraction, the denominator of which is 1,825 and
11 the numerator of which is the number of days that the
12 consumer used the assistive device before first reporting the
13 nonconformity to the manufacturer, assistive device lessor,
14 or assistive device dealer.
15 Section 20. Receipt of new device or refund.
16 (a) To receive a comparable new assistive device or a
17 refund due under Section 15, a consumer shall offer to the
18 manufacturer of the assistive device having nonconformity to
19 transfer possession of that device to that manufacturer. No
20 later than 30 days after that offer, the manufacturer shall
21 provide the consumer with a comparable assistive device or
22 refund. When the manufacturer provides the new assistive
23 device or refund, the consumer shall return the assistive
24 device having the nonconformity to the manufacturer along
25 with any endorsements necessary to transfer real possession
26 to the manufacturer.
27 (b) To receive a refund due under item (3) of Section
28 15, a person who leases an assistive device from an assistive
29 device lessor authorized under a written lease shall offer to
30 return the assistive device having the nonconformity to its
31 manufacturer. No later than 30 days after that offer, the
32 manufacturer shall provide the refund to the consumer. When
33 the manufacturer provides the refund, the consumer shall
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1 return to the manufacturer the assistive device having the
2 nonconformity.
3 (c) To receive a refund due under item (3) of Section 15
4 an assistive device lessor shall offer to transfer possession
5 of the assistive device having the nonconformity to its
6 manufacturer. No later than 30 days after that offer, the
7 manufacturer shall provide the refund to the assistive device
8 lessor. When the manufacturer provides the refund, the
9 assistive device lessor shall provide to the manufacturer any
10 endorsements necessary to transfer legal possession to the
11 manufacturer.
12 Section 25. Prohibition on enforcement of lease. No
13 person shall enforce the lease against the consumer after the
14 consumer receives a refund due under Section 15.
15 Section 30. Prohibition on resale or lease. No
16 assistive device returned by a consumer or assistive device
17 lessor in this State, or by a consumer or assistive device
18 lessor in another State under similar law of that State, may
19 be sold or leased again in this State unless full disclosure
20 of the reasons for return is made to any prospective buyer or
21 lessee.
22 Section 35. Arbitration.
23 (a) Each consumer shall have the option of submitting
24 any dispute arising under this Act upon the payment of a
25 prescribed fee to an alternative arbitration mechanism
26 established under rules promulgated by the Attorney General.
27 (b) The alternate arbitration shall be conducted by a
28 professional arbitrator or arbitration firm appointed by and
29 under rules established by the Attorney General. The
30 mechanism shall ensure the personal objectivity of its
31 arbitrators, the right of each party to present its case, to
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1 be in attendance during any presentation made by the other
2 party, and to rebut or refute the other party's presentation.
3 (c) This Section shall not be construed to limit rights
4 or remedies available to a consumer under any other law.
5 Section 40. Waiver void. Any waiver by a consumer of
6 rights under this Act is void.
7 Section 45. Damages. In addition to pursuing any other
8 remedy, a consumer may bring an action to recover any damages
9 caused by a violation of this Act. The court shall award a
10 consumer who prevails in such an action twice the amount of
11 any pecuniary loss, costs, disbursements, and reasonable
12 attorney fees, and any equitable relief that the court
13 determines is appropriate.