HOUSE BILL 971194
BY REPRESENTATIVES K. Alexander, Chavez, Entz, Epps, Hagedorn, Keller, Leyba, Mace, Reeser, Romero, Schwarz, Sullivant, Tate, Taylor, Tupa, and S. Williams;
also SENATORS Bishop, B. Alexander, Chlouber, Congrove,
Hernandez, Linkhart, Martinez, Matsunaka, Pascoe, Powers, Reeves,
Rupert, Tanner, Thiebaut, Wattenberg, and Weddig.
CONCERNING SELFSUFFICIENCY FOR PERSONS WITH
DISABILITIES BY ASSURING RELIABLE ASSISTIVE TECHNOLOGY.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. Article
1 of title 6, Colorado Revised Statutes, 1992 Repl. Vol., as amended,
is amended BY THE ADDITION OF A NEW PART to read:
PART 4
61401. Legislative intent. (1) IT
IS THE INTENT OF THE GENERAL ASSEMBLY TO ENCOURAGE AND PROMOTE
INDEPENDENT LIVING AND SELFSUFFICIENCY FOR PERSONS WITH
DISABILITIES AND TO REDUCE THEIR NEED TO RELY ON PUBLICLY FUNDED
SUPPORTS. OF AN ESTIMATED FORTYNINE MILLION AMERICANS WITH
DISABILITIES, APPROXIMATELY SEVENTY PERCENT OF THEM ARE UNEMPLOYED
OR UNDEREMPLOYED. HAVING SAFE, RELIABLE ASSISTIVE TECHNOLOGY REPRESENTS
A MOST ESSENTIAL NEED GIVEN THE MANY BARRIERS TO INDEPENDENT LIVING
AND SELFSUFFICIENCY PEOPLE WITH DISABILITIES FACE.
(2) THE GOAL OF MEETING THIS ESSENTIAL
NEED CAN BE FURTHERED BY ASSURING THAT ASSISTIVE TECHNOLOGY PROVIDED
TO PERSONS WITH DISABILITIES IS OF QUALITY AND IS COVERED BY ADEQUATE
WARRANTIES TO MAINTAIN THEIR ASSISTIVE TECHNOLOGY IN PROPER WORKING
CONDITION, TO ASSURE AVAILABILITY OF APPROPRIATE LOANER REPLACEMENT
ASSISTIVE TECHNOLOGY WHILE THEIR OWN IS BEING REPAIRED, AND TO
ENCOURAGE MANUFACTURERS AND DEALERS TO COOPERATIVELY POOL ASSISTIVE
TECHNOLOGY RESOURCES FOR LOANER PURPOSES TO ASSURE AVAILABILITY
WITHOUT AN UNDUE BURDEN.
(3) THE GENERAL ASSEMBLY FINDS AND DECLARES
IT IS IN THE STATE'S BEST INTEREST TO ADOPT THIS PART 4.
61402. Definitions.
AS USED IN THIS PART 4, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) "COLLATERAL COSTS" MEANS
EXPENSES INCURRED BY A CONSUMER IN CONNECTION WITH THE REPAIR
OF A NONCONFORMITY IN A WHEELCHAIR, INCLUDING THE COST OF AN ALTERNATIVE
WHEELCHAIR, IF A LOANER, AS THAT TERM IS DEFINED IN SUBSECTION
(8) OF THIS SECTION, WAS NOT OFFERED TO THE CONSUMER, OR OTHER
ASSISTIVE DEVICE OR SERVICE FOR MOBILITY ASSISTANCE. "COLLATERAL
COSTS" SHALL NOT INCLUDE THE COST OF HIRING A PERSONAL ASSISTANT.
(2) "CONSUMER" MEANS:
(a) A PURCHASER OF A WHEELCHAIR, IF THE
WHEELCHAIR WAS PURCHASED FROM A WHEELCHAIR DEALER OR MANUFACTURER
FOR PURPOSES OTHER THAN RESALE;
(b) A PERSON TO WHOM A WHEELCHAIR IS TRANSFERRED
FOR PURPOSES OTHER THAN RESALE, IF SUCH TRANSFER OCCURS BEFORE
THE EXPIRATION OF THE EXPRESS WARRANTY APPLICABLE TO SUCH WHEELCHAIR;
(c) A PERSON WHO MAY ENFORCE THE EXPRESS
WARRANTY APPLICABLE TO A WHEELCHAIR; OR
(d) A PERSON WHO LEASES A WHEELCHAIR FROM
A WHEELCHAIR LESSOR UNDER A WRITTEN LEASE.
(3) "DEALER" MEANS A PERSON
OR ENTITY THAT IS IN THE BUSINESS OF SELLING WHEELCHAIRS, OR ANY
AGENTS OF THAT PERSON OR ENTITY. "DEALER" INCLUDES AN
ALTERNATIVE WARRANTY SERVICE PROVIDER.
(4) (a) "EARLY TERMINATION COST"
MEANS ANY EXPENSE OR OBLIGATION THAT A WHEELCHAIR LESSOR INCURS
AS A RESULT OF:
(I) TERMINATING A WRITTEN LEASE BEFORE
THE TERMINATION DATE SET FORTH IN THE LEASE; AND
(II) RETURNING THE WHEELCHAIR TO THE MANUFACTURER.
(b) "EARLY TERMINATION COST"
INCLUDES ANY PREPAYMENT PENALTY UNDER A FINANCE ARRANGEMENT.
(5) "EARLY TERMINATION SAVINGS"
MEANS ANY EXPENSE OR OBLIGATION THAT A WHEELCHAIR LESSOR AVOIDS
AS A RESULT OF PERFORMING THE ACTS DESCRIBED IN PARAGRAPH (a)
OF SUBSECTION (4) OF THIS SECTION. "EARLY TERMINATION SAVINGS"
INCLUDES ANY INTEREST CHARGE THAT THE WHEELCHAIR LESSOR WOULD
HAVE PAID TO FINANCE THE WHEELCHAIR OR, IF THE WHEELCHAIR LESSOR
DID NOT FINANCE THE WHEELCHAIR, THE DIFFERENCE BETWEEN THE TOTAL
AMOUNT THE LESSEE WAS OBLIGATED TO PAY OVER THE PERIOD OF THE
LEASE TERM REMAINING AFTER THE EARLY TERMINATION DATE AND THE
PRESENT VALUE OF THAT AMOUNT ON THE EARLY TERMINATION DATE.
(6) "EXPRESS WARRANTY" MEANS
AN EXPRESS WARRANTY AS SET FORTH IN SECTIONS 42313
AND 42.5210, C.R.S. AN EXPRESS WARRANTY SHALL COVER
EVERY PART OF A NEW WHEELCHAIR EXCEPT THE TIRES AND BATTERIES.
(7) "LESSOR" MEANS A PERSON
OR ENTITY THAT LEASES A WHEELCHAIR TO A CONSUMER OR THAT HOLDS
THE LESSOR'S RIGHTS UNDER A WRITTEN LEASE, OR ANY AGENTS OF THAT
PERSON OR ENTITY.
(8) "LOANER" MEANS A WHEELCHAIR
THAT IS PROVIDED TO THE CONSUMER FOR USE FREE OF CHARGE THAT IS
NOT REQUIRED TO HAVE THE FUNCTIONAL CAPABILITIES EQUAL TO OR GREATER
THAN THOSE OF THE ORIGINAL WHEELCHAIR BUT THAT MEETS THE FOLLOWING
CONDITIONS:
(a) IT IS IN GOOD WORKING ORDER;
(b) IT PERFORMS AT A MINIMUM THE MOST
ESSENTIAL FUNCTIONS OF THE ORIGINAL WHEELCHAIR IN LIGHT OF THE
DISABILITIES OF THE USER;
(c) IT IS USABLE BY THE CONSUMER GIVEN
THE CONSUMER'S IMPAIRMENTS; AND
(d) ANY DIFFERENCE BETWEEN THE LOANER
AND THE ORIGINAL WHEELCHAIR DOES NOT CREATE A THREAT TO SAFETY.
(9) "MANUFACTURER" MEANS A PERSON
OR ENTITY THAT MANUFACTURES OR ASSEMBLES WHEELCHAIRS AND ANY AGENTS
OF THAT PERSON OR ENTITY, INCLUDING AN IMPORTER, A DISTRIBUTOR,
AN AUTHORIZED SERVICER, A FACTORY BRANCH, A DISTRIBUTOR BRANCH,
AND WARRANTORS OF THE MANUFACTURER'S WHEELCHAIRS. "MANUFACTURER"
DOES NOT INCLUDE A DEALER.
(10) "MODULAR ASSEMBLY" MEANS
A DEVICE ADDED TO THE WHEELCHAIR BASE TO ACCOMMODATE THE SPECIAL
NEEDS OF THE CONSUMER, SUCH AS SEATING SYSTEMS, TILT OR RECLINE
SYSTEMS, AND SPECIALLY ADAPTED CONTROL MODULES.
(11) "NONCONFORMITY" MEANS A
DEFECT THAT SUBSTANTIALLY IMPAIRS THE USE, RELIABILITY, VALUE,
OR SAFETY OF A WHEELCHAIR AND THAT IS COVERED BY AN EXPRESS WARRANTY
APPLICABLE TO SUCH WHEELCHAIR OR A COMPONENT OF SUCH WHEELCHAIR.
"NONCONFORMITY" DOES NOT INCLUDE A DEFECT THAT IS THE
RESULT OF ABUSE, NEGLECT, OR THE UNAUTHORIZED MODIFICATION OR
ALTERATION OF A WHEELCHAIR BY A CONSUMER.
(12) "REASONABLE ATTEMPT TO REPAIR"
MEANS THAT ONE OF THE FOLLOWING HAS OCCURRED WITHIN THE TERM OF
AN EXPRESS WARRANTY APPLICABLE TO A NEW WHEELCHAIR OR WITHIN ONE
YEAR AFTER FIRST DELIVERY OF A WHEELCHAIR TO A CONSUMER, WHICHEVER
OCCURS EARLIER:
(a) THE SAME NONCONFORMITY IS SUBJECT
TO REPAIR AT LEAST THREE TIMES BY THE MANUFACTURER, LESSOR, OR
ANY OF THE MANUFACTURER'S AUTHORIZED DEALERS; OR
(b) BECAUSE OF A NONCONFORMITY, THE WHEELCHAIR
CANNOT BE USED BY THE CONSUMER FOR AN AGGREGATE OF AT LEAST THIRTY
DAYS OR TEN CONSECUTIVE BUSINESS DAYS.
(13) "REPLACEMENT WHEELCHAIR"
MEANS A WHEELCHAIR OF COMPARABLE QUALITY, SIZE, AND FUNCTION.
(14) "SELLING DEALER" MEANS THE ENTITY
THAT ORIGINALLY SOLD THE WHEELCHAIR TO THE CONSUMER AND WAS INVOLVED
IN THE DESIGN, ASSEMBLY, FITTING, AND EDUCATION OF THE CONSUMER
ON THE USE AND MAINTENANCE OF THE WHEELCHAIR.
(15) "SPECIALTY CONTROL MODULE"
MEANS THE TECHNOLOGICALLY ADVANCED ELECTRONIC DEVICE OF LIMITED
AVAILABILITY THAT CONTAINS THE SIGNAL AND OUTPUT CIRCUITRY FOR
A POWER WHEELCHAIR DESIGNED AND ASSEMBLED FOR USE BY A SPECIFIC
INDIVIDUAL WITH SEVERE LIMITATIONS WHO IS UNABLE TO USE A STANDARD
CONTROL MODULE.
(16) "STANDARD WHEELCHAIR" MEANS
A WHEELCHAIR THAT HAS SEAT WIDTH AND DEPTH DIMENSIONS OF SIXTEEN
TO EIGHTEEN INCHES.
(17) "WHEELCHAIR" MEANS ANY
WHEELCHAIR, SCOOTER, OR MODULAR ASSEMBLY, INCLUDING A DEMONSTRATOR,
THAT IS MOTOR DRIVEN OR MANUALLY OPERATED THAT A CONSUMER PURCHASES
OR ACCEPTS TRANSFER OF IN THIS STATE FOR THE PURPOSES OF MOBILITY
ASSISTANCE.
61403. Express warranty
required authorized servicers.
(1) (a) EXCEPT AS PROVIDED IN SUBSECTION (2)
OF THIS SECTION, A CONSUMER WHO PURCHASES OR LEASES A NEW WHEELCHAIR
EITHER DIRECTLY OR INDIRECTLY THROUGH A DEALER OR LESSOR SHALL
RECEIVE AN EXPRESS WARRANTY FOR SUCH WHEELCHAIR. THE MANUFACTURER
SHALL ISSUE THIS EXPRESS WARRANTY THAT SHALL EXTEND FOR NOT LESS
THAN ONE YEAR AFTER FIRST DELIVERY TO THE CONSUMER.
(b) EXCEPT AS PROVIDED IN SUBSECTION (2)
OF THIS SECTION, A SELLING DEALER SHALL PROVIDE AN EXPRESS WARRANTY
FOR ANY MODIFICATIONS MADE BY THE DEALER THAT SHALL ALSO EXTEND
FOR NOT LESS THAN SIX MONTHS AFTER FIRST DELIVERY TO THE CONSUMER.
(2) NOTWITHSTANDING THE PROVISIONS OF
SUBSECTION (1) OF THIS SECTION, THE WARRANTY FOR THE SPECIALTY
CONTROL MODULE SHALL BE LIMITED TO THE WARRANTY PROVIDED BY THE
MANUFACTURER OF SUCH SPECIALTY CONTROL MODULE OR NINETY DAYS,
WHICHEVER IS LONGER.
(3) IF A MANUFACTURER OR DEALER FAILS
TO FURNISH THE EXPRESS WARRANTY REQUIRED BY THIS SECTION, THE
WHEELCHAIR SHALL BE COVERED BY A WARRANTY THE SAME AS IF AN EXPRESS
WARRANTY HAD BEEN PROVIDED BY THE MANUFACTURER OR DEALER PURSUANT
TO THIS SECTION.
(4) ANY ENTITY THAT SELLS OR LEASES WHEELCHAIRS
IN THIS STATE, INCLUDING ANY ENTITY THAT SELLS OR LEASES THROUGH
MAIL ORDER OR CATALOGUE SALES, SHALL DESIGNATE AN AUTHORIZED SERVICER
FOR SUCH CHAIRS THAT IS LOCATED IN THIS STATE IN REASONABLE PROXIMITY
TO THE CONSUMER.
(5) (a) IN THE EVENT THAT THE SELLING
DEALER FROM WHOM THE CONSUMER PURCHASED THE WHEELCHAIR GOES OUT
OF BUSINESS OR CEASES TO BE AN AUTHORIZED DEALER OR SERVICE CENTER
FOR THE MANUFACTURER, OR IF THE DEALER OR CONSUMER MOVES OR RELOCATES
TO A LOCATION THAT MAKES IT UNREASONABLE FOR THE CONSUMER TO SEEK
WARRANTY SERVICE FROM THE SELLING DEALER, OR IF THE CONSUMER IS
DISSATISFIED WITH THE SELLING DEALER, THE CONSUMER SHALL BE RESPONSIBLE
FOR CONTACTING THE MANUFACTURER OR ANOTHER AUTHORIZED DEALER WHICH
WILL BE RESPONSIBLE FOR FACILITATING THE WARRANTY SERVICE REQUIRED
WITH AN AUTHORIZED DEALER, TO BE MUTUALLY AGREED UPON BY THE CONSUMER
AND THE MANUFACTURER, WHICH ENTITY SHALL BE REFERRED TO AS THE
"ALTERNATIVE WARRANTY SERVICE PROVIDER".
(b) IN THE EVENT THAT AN ALTERNATIVE WARRANTY
SERVICE PROVIDER IS DESIGNATED PURSUANT TO PARAGRAPH (a) OF THIS
SUBSECTION (5), THE CONSUMER MAY ONLY SEEK WARRANTY SERVICE FROM
SUCH ALTERNATIVE WARRANTY SERVICE PROVIDER.
(c) TO THE EXTENT REASONABLE AND POSSIBLE,
THE MANUFACTURER SHALL TAKE INTO ACCOUNT THE INDEPENDENT MOBILITY
RESOURCES OF THE CONSUMER WHEN DETERMINING THE ALTERNATIVE WARRANTY
SERVICE PROVIDER PURSUANT TO THE PROVISIONS OF THIS SUBSECTION
(5).
61404. Remedies.
(1) IF A NEW WHEELCHAIR DOES NOT CONFORM TO THE APPLICABLE
EXPRESS WARRANTY AND THE CONSUMER REPORTS THE NONCONFORMITY TO
THE MANUFACTURER, THE LESSOR, THE SELLING DEALER, OR THE ALTERNATIVE
WARRANTY SERVICE PROVIDER, AND MAKES THE WHEELCHAIR AVAILABLE
FOR REPAIR WITHIN THE WARRANTY PERIOD, THE NONCONFORMITY SHALL
BE REPAIRED AT NO CHARGE TO THE CONSUMER. ANY REPAIRS PERFORMED
PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE WARRANTED
FOR A PERIOD NOT LESS THAN THE ORIGINAL WARRANTY PERIOD. WHEN
THE WHEELCHAIR IS NOT SAFELY MOVEABLE AND THERE IS NO REASONABLE
WAY FOR THE CONSUMER TO DELIVER THE WHEELCHAIR TO THE MANUFACTURER
OR DEALER, THE MANUFACTURER OR DEALER SHALL BE RESPONSIBLE FOR
THE RETURN OF THE WHEELCHAIR, OR THE WHEELCHAIR MAY BE REPAIRED
ON SITE AT THE OPTION OF THE DEALER.
(2) IF THE MANUFACTURER AUTHORIZES THE
DEALER OR LESSOR TO MAKE THE REPAIR, THE DEALER OR LESSOR SHALL
MAKE THE REPAIR AND THEN BE REIMBURSED BY THE MANUFACTURER FOR
THE DEALER'S OR LESSOR'S COST FOR PARTS, LABOR, AND REPAIR IF
THE NONCONFORMITY IS A MANUFACTURER'S DEFECT. A MANUFACTURER SHALL
RESPOND TO THE DEALER'S OR LESSOR'S REQUEST FOR AUTHORIZATION
TO MAKE A REPAIR BY THE END OF THE BUSINESS DAY THAT IMMEDIATELY
FOLLOWS THE DAY SUCH A REQUEST IS MADE.
(3) WHEN A WHEELCHAIR COVERED BY AN EXPRESS
WARRANTY IS TENDERED BY A CONSUMER TO THE MANUFACTURER, SELLING
DEALER, ALTERNATIVE WARRANTY SERVICE PROVIDER, OR LESSOR FOR THE
REPAIR OF A DEFECT, MALFUNCTION, OR NONCONFORMITY TO WHICH THE
WARRANTY IS APPLICABLE, THE CONSUMER SHALL RECEIVE A LOANER IF
THE OUTOFSERVICE PERIOD EXCEEDS ONE DAY AND SHALL
KEEP THE LOANER UNTIL THE REQUIREMENTS OF SECTION 61405
OR 61406 ARE FULFILLED. IF THE REQUIRED LOANER IS
NOT A STANDARD WHEELCHAIR, THE MANUFACTURER OR DEALER SHALL MAKE
A GOOD FAITH EFFORT TO MAKE AVAILABLE ALTERNATIVE EQUIPMENT THAT
IS USABLE BY THE CONSUMER. THE COST OF THE LOANER SHALL BE BORNE
BY THE ENTITY RESPONSIBLE FOR THE DEFECT REQUIRING THE REPAIR
OR REPLACEMENT OF THE WHEELCHAIR AS PROVIDED IN THIS SECTION.
THE CONSUMER SHALL HAVE THE DUTY TO CARE FOR THE LOANER PROPERLY
AND TO PROTECT AGAINST ANY DAMAGE TO THE CHAIR.
(4) IF A NONCONFORMITY IS NOT REPAIRED
AFTER A REASONABLE ATTEMPT TO REPAIR, THE MANUFACTURER OR DEALER
WHO ORIGINALLY SUPPLIED OR MODIFIED THE WHEELCHAIR, AS REQUIRED
BY THIS SECTION, SHALL:
(a) IF THE WHEELCHAIR WAS PURCHASED, TAKE
THE FOLLOWING ACTION AT THE DIRECTION OF THE CONSUMER:
(I) ACCEPT A RETURN OF THE WHEELCHAIR, PROVIDE A REPLACEMENT WHEELCHAIR OF EQUAL OR GREATER VALUE, AND REFUND ANY COLLATERAL COSTS TO THE CONSUMER, A HOLDER OF A PERFECTED SECURITY INTEREST IN THE WHEELCHAIR, OR A THIRDPARTY PURCHASER; OR
(II) ACCEPT A RETURN OF THE WHEELCHAIR
AND REFUND TO THE CONSUMER, HOLDER OF A PERFECTED SECURITY INTEREST
IN THE WHEELCHAIR, OR THIRDPARTY PURCHASER NOT MORE THAN
THE FULL PURCHASE PRICE PLUS ANY FINANCE CHARGE, SALES TAX, SHIPPING
COSTS, AND COLLATERAL COSTS PAID.
(b) IF THE WHEELCHAIR WAS LEASED, TAKE
ALL OF THE FOLLOWING ACTIONS AT THE DIRECTION OF THE CONSUMER:
(I) ACCEPT A RETURN OF THE WHEELCHAIR;
(II) (A) REFUND TO THE LESSOR AND
ANY HOLDER OF A PERFECTED SECURITY INTEREST IN THE WHEELCHAIR
THE CURRENT VALUE OF THE WRITTEN LEASE.
(B) FOR PURPOSES OF THIS SUBPARAGRAPH
(II), "CURRENT VALUE OF THE WRITTEN LEASE" MEANS THE
SUM OF THE TOTAL AMOUNT FOR WHICH THE CONSUMER IS OBLIGATED DURING
THE TERM OF THE LEASE REMAINING AFTER THE EARLY TERMINATION DATE,
THE DEALER'S EARLY TERMINATION COSTS, AND THE VALUE OF THE WHEELCHAIR
ON THE LEASE EXPIRATION DATE, IF THE LEASE SETS FORTH THAT VALUE,
LESS THE LESSOR'S EARLY TERMINATION SAVINGS.
(III) REFUND TO THE CONSUMER OR THIRDPARTY
PURCHASER THE AMOUNT PAID UNDER THE LEASE PLUS ANY COLLATERAL
COSTS.
(5) (a) IN THE EVENT THAT A DISPUTE
ARISES AS TO LIABILITY UNDER THIS PART 4 BETWEEN OR AMONG A MANUFACTURER,
DEALER, LESSOR, OR CONSUMER, AND THE CONSUMER IS COVERED BY ANY
THIRD PARTY INSURER, SUCH THIRD PARTY INSURER SHALL NOT BE RELIEVED
OF ANY OBLIGATION TO PROVIDE BENEFITS COVERED UNDER ITS PLAN OR
APPLICABLE LAW.
(b) IN THE EVENT THAT A WHEELCHAIR IS
FOUND TO BE DEFECTIVE, THE THIRD PARTY PAYOR DESCRIBED IN PARAGRAPH
(a) OF THIS SUBSECTION (5) SHALL HAVE ALL RIGHTS OF RECOVERY,
INCLUDING THE RIGHT TO COSTS, THAT THE CONSUMER WOULD HAVE HAD
UNDER THIS PART 4.
61405. Remedies for consumers
conditions. (1) TO RECEIVE
A REFUND OR A REPLACEMENT WHEELCHAIR, THE CONSUMER OF A PURCHASED
WHEELCHAIR SHALL FIRST OFFER TO TRANSFER THE WHEELCHAIR WITH THE
NONCONFORMITY TO THE MANUFACTURER, SELLING DEALER, OR ALTERNATIVE
WARRANTY SERVICE PROVIDER.
(2) WITHIN THIRTY BUSINESS DAYS AFTER
RECEIPT OF THE OFFER DESCRIBED IN SUBSECTION (1) OF THIS SECTION,
THE MANUFACTURER OR DEALER SHALL PROVIDE THE CONSUMER WITH A REFUND
OR A REPLACEMENT WHEELCHAIR.
(3) WHEN A MANUFACTURER OR DEALER PROVIDES
A CONSUMER WITH A REFUND OR A REPLACEMENT WHEELCHAIR, SUCH CONSUMER
SHALL RETURN THE WHEELCHAIR WITH THE NONCONFORMITY, IF SUCH WHEELCHAIR
IS SAFELY OPERABLE, TO THE MANUFACTURER OR DEALER WITH ANY ENDORSEMENTS
NECESSARY TO TRANSFER POSSESSION TO THE MANUFACTURER OR DEALER.
WHEN THE WHEELCHAIR IS NOT SAFELY MOVABLE AND THERE IS NO REASONABLE
WAY FOR THE CONSUMER TO DELIVER THE WHEELCHAIR TO THE MANUFACTURER
OR DEALER, THE MANUFACTURER OR DEALER SHALL BE RESPONSIBLE FOR
THE RETURN OF THE WHEELCHAIR.
61406. Remedies for consumers
of leased wheelchairs conditions.
(1) TO RECEIVE A REFUND DUE ON A LEASED WHEELCHAIR,
A CONSUMER SHALL FIRST OFFER TO RETURN THE WHEELCHAIR WITH THE
NONCONFORMITY TO THE LESSOR.
(2) WITHIN THIRTY BUSINESS DAYS AFTER
RECEIPT OF THE OFFER DESCRIBED IN SUBSECTION (1) OF THIS SECTION,
THE LESSOR SHALL PROVIDE THE CONSUMER WITH A REFUND.
(3) WHEN A LESSOR PROVIDES A CONSUMER
WITH A REFUND, SUCH CONSUMER SHALL RETURN THE WHEELCHAIR WITH
THE NONCONFORMITY TO SUCH LESSOR.
(4) A LESSOR SHALL OFFER TO TRANSFER TO
A MANUFACTURER OR DEALER THE POSSESSION OF A WHEELCHAIR RETURNED
PURSUANT TO SUBSECTION (3) OF THIS SECTION. WITHIN THIRTY
BUSINESS DAYS AFTER RECEIVING SUCH OFFER, THE MANUFACTURER OR
DEALER SHALL REMIT THE REFUND AMOUNT TO THE LESSOR. WHEN THE MANUFACTURER
OR DEALER MAKES SUCH REFUND, THE LESSOR SHALL PROVIDE THE MANUFACTURER
OR DEALER WITH THE ENDORSEMENTS NECESSARY TO TRANSFER POSSESSION
TO THE MANUFACTURER OR DEALER.
61407. Resale of a returned
wheelchair disclosure required.
A WHEELCHAIR RETURNED PURSUANT TO THIS PART 4 BY A CONSUMER
IN THIS STATE, OR BY A CONSUMER IN ANOTHER STATE UNDER A SIMILAR
LAW OF THAT STATE, SHALL NOT BE SOLD OR LEASED AGAIN IN THIS STATE
UNLESS FULL DISCLOSURE IS MADE TO THE PROSPECTIVE CONSUMER OF
THE REASONS FOR THE RETURN.
61408. Other remedies
waiver of rights void. (1) THIS
PART SHALL NOT LIMIT THE RIGHTS OR REMEDIES AVAILABLE TO A CONSUMER
UNDER ANY OTHER LAW OF THIS STATE.
(2) IF A CONSUMER WAIVES THE RIGHTS GRANTED
TO CONSUMERS PURSUANT TO THIS PART 4, SUCH WAIVER SHALL BE
VOID AS AGAINST PUBLIC POLICY.
(3) NOTWITHSTANDING THE REMEDIES THAT
ARE AVAILABLE TO A CONSUMER PURSUANT TO THIS PART 4, A CONSUMER
MAY PURSUE ANY OTHER REMEDY, INCLUDING AN ACTION TO RECOVER FOR
DAMAGES CAUSED BY A VIOLATION OF THIS PART 4. IF A MANUFACTURER
OR DEALER IS FOUND TO HAVE VIOLATED THIS PART 4, A CONSUMER SHALL
BE AWARDED THE AMOUNT OF ACTUAL DAMAGES CAUSED BY THE VIOLATION
AND REASONABLE ATTORNEY FEES. THE CONSUMER MAY BE AWARDED COLLATERAL
COSTS AND PUNITIVE DAMAGES.
61409. Fraudulent acts.
ANY MANUFACTURER, DEALER, OR LESSOR THAT ENGAGES IN CONDUCT TO
DELAY MAKING A FINAL REPAIR THAT IS REQUIRED AS A CONSEQUENCE
OF THE ENFORCEMENT OF WARRANTIES OR DUTIES UNDER THIS PART 4 WITH
THE INTENTION OF REQUIRING PAYMENT OF THE COST OF SUCH REPAIR
TO BE MADE BY A PUBLICLY FUNDED PROGRAM OF PUBLIC ASSISTANCE,
MEDICAL ASSISTANCE, OR REHABILITATION ASSISTANCE COMMITS THE CRIME
OF THEFT, WHICH CRIME SHALL BE CLASSIFIED IN ACCORDANCE WITH SECTION
184401 (2), C.R.S., AND WHICH CRIME SHALL BE PUNISHED
AS PROVIDED IN SECTION 181105, C.R.S., IF THE CRIME
IS CLASSIFIED AS A FELONY, OR SECTION 181106, C.R.S.,
IF THE CRIME IS CLASSIFIED AS A MISDEMEANOR.
61410. Arbitration. DISPUTES
AMONG MANUFACTURERS, DEALERS, AND LESSORS CONCERNING THE ENFORCEMENT
OF RIGHTS OR REMEDIES OF CONSUMERS UNDER THIS PART 4 SHALL BE
SUBJECT TO ARBITRATION PURSUANT TO THE COLORADO RULES OF CIVIL
PROCEDURE. THE AWARD OF THE ARBITRATION PANEL SHALL BE BINDING
UPON THE PARTIES AND SHALL ONLY BE SUBJECT TO COURT REVIEW BY
TRIAL DE NOVO.
61411. Defect notification. (1) A
MANUFACTURER SHALL BE RESPONSIBLE FOR PROVIDING WRITTEN NOTIFICATION
TO AN OWNER, USER, PURCHASER, DEALER, LESSOR, OR CONSUMER OF ANY
KNOWN OR DISCOVERED INHERENT DEFECT IN A WHEELCHAIR THAT AFFECTS
THE SAFETY, USABILITY, OR RELIABILITY OF THAT WHEELCHAIR. THE
MANUFACTURER SHALL SEND SUCH NOTIFICATION BY FIRST CLASS MAIL
TO THE LAST KNOWN ADDRESS OF THE OWNER, USER, PURCHASER, DEALER,
LESSOR, OR CONSUMER WITHIN FOURTEEN DAYS AFTER LEARNING OF SUCH
A DEFECT.
(2) A MANUFACTURER SHALL BE RESPONSIBLE
FOR THE COSTS OF PROVIDING THE NOTIFICATION REQUIRED IN SUBSECTION
(1) OF THIS SECTION AND FOR ALL COSTS ASSOCIATED WITH CORRECTING
ANY DEFECT DESCRIBED IN SUBSECTION (1) OF THIS SECTION.
(3) THE PROVISIONS OF THIS SECTION SHALL
APPLY WITHOUT TIME LIMITATIONS.
61412. Disclosures.
(1) PRIOR TO THE SALE OF ANY WHEELCHAIR, THE SELLER
SHALL DISCLOSE WHETHER THE WHEELCHAIR IS NEW OR USED AND WHETHER
ANY WARRANTY APPLIES TO SUCH WHEELCHAIR.
(2) UPON DELIVERY OF A NEW OR USED WHEELCHAIR,
THE SELLER SHALL ADVISE THE BUYER OF ANY WARRANTY RIGHTS UNDER
THIS PART 4 AND THE WHEELCHAIR'S MAINTENANCE SCHEDULE AND OPERATING
INSTRUCTIONS AND SHALL PROVIDE THE BUYER WITH A COPY OF THE OWNER'S
MANUAL.
(3) THE DISCLOSURE REQUIRED PURSUANT TO
SUBSECTION (1) OF THIS SECTION AND THE ADVISEMENT REQUIRED PURSUANT
TO SUBSECTION (2) OF THIS SECTION SHALL BE IN WRITING AND SHALL,
IN THE CASE OF BUYER WHO IS A PERSON ADJUDICATED NOT MENTALLY
COMPETENT, BE PROVIDED TO THE GUARDIAN, PARENT, LEGAL CUSTODIAN,
OR PRIMARY CAREGIVER OF SUCH PERSON.
SECTION 2. Effective
date applicability. This act shall take effect
July 1, 1997, and shall apply to sales and leases occurring on
or after said date.
SECTION 3. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Joan M. Albi
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE OF COLORADO