Amendment SSA1-SB96

LRBs0183/4

EVM:wlj:ph

2011 - 2012 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2011 SENATE BILL 96

October 13, 2011 - Offered by Committee on Transportation and Elections.

SB96-SSA1,1,11 An Act to renumber 218.0133 (2) (d); to renumber and amend 218.0125 (1); to amend 218.0116 (1) (km), 218.0116 (1) (rm), 218.0116 (10), 218.0125 (2), 218.0125 (3), 218.0125 (4), 218.0125 (5), 218.0133 (title), 218.0133 (2) (a), 218.0133 (2) (b) 1. b., 218.0133 (2) (b) 1. c., 218.0133 (2) (b) 2., 218.0133 (4) (a), 218.0133 (5) (a) 2., 218.0133 (5) (d), 218.0133 (6) (b) and 218.0163 (1) (a); and to create 218.0116 (1) (um), 218.0116 (1) (vm), 218.0116 (1) (wm), 218.0116 (1) (xm), 218.0116 (1) (y), 218.0116 (1) (ym), 218.0116 (1) (ys), 218.0125 (1) (b), 218.0125 (3m), 218.0125 (4m), 218.0128, 218.0133 (1) (c), 218.0133 (2) (d) 2., 218.0133 (2) (d) 3., 218.0133 (2) (f), 218.0133 (4) (e), 218.0133 (4) (f), 218.0133 (5) (a) 4d., 218.0133 (5) (a) 4h., 218.0133 (5) (a) 4p., 218.0133 (5) (a) 4t. and 218.0133 (7) of the statutes; relating to: motor vehicle dealers.

Analysis by the Legislative Reference Bureau

Under current law, each manufacturer, importer, distributor, and dealer of motor vehicles that wishes to sell motor vehicles in this state must be licensed by the Department of Transportation (DOT). The manufacturer, importer, or distributor may have its license revoked and may be liable for pecuniary losses and attorney fees incurred by the dealer, if the manufacturer, importer, or distributor takes certain actions with respect to a dealer that have been enumerated as violations.

This substitute amendment enumerates several additional actions of a manufacturer, importer, or distributor, other than a manufacturer, importer, or distributor of motorcycles, with respect to a dealer as violations. These newly designated violations are: 1) conditioning certain agreements or approvals on the dealer's entry into a contract that allows the manufacturer, importer, or distributor to control the disposition or use of the dealer's dealership facilities; 2) unreasonably conditioning certain agreements or approvals on the dealer's improvement of the dealer's dealership facilities at a substantial cost to the dealer; 3) unreasonably requiring a dealer to maintain exclusive facilities for a particular line make of motor vehicles; 4) taking certain adverse actions against a dealer for charging a lawful service fee to a retail customer; 5) taking certain adverse actions against a dealer because, without the dealer's knowledge that the purchaser intended to export the motor vehicle, a motor vehicle purchaser exported a motor vehicle; 6) with certain exceptions, requiring a dealer to provide the manufacturer, importer, or distributor with information regarding the dealer's retail customers; 7) transferring nonpublic customer information obtained from a dealer to another dealer or otherwise using nonpublic customer information obtained from a dealer for a nonpermitted use; and 8) failing to properly indemnify a dealer.

Under current law, a manufacturer, importer, or distributor must reasonably compensate a dealer that performs certain motor vehicle service work for the manufacturer, importer, or distributor. Covered service work is work to rectify product defects or other defects covered by the warranty provided by the manufacturer, importer, or distributor, certain motor vehicle delivery or preparation obligations, and any other work approved by the manufacturer, importer, or distributor. The manufacturer, importer, or distributor must compensate the dealer, for service, at the effective labor rate charged to all customers and, for parts, generally at not less than the amount the dealer charges other retail service customers for the parts. To be eligible for compensation, a dealer must notify the manufacturer, importer, or distributor of the amount that the dealer charges other retail service customers for parts. The manufacturer, importer, or distributor may require the dealer to provide documentary substantiation of the claimed amount the dealer charges for parts.

This substitute amendment requires most manufacturers, importers, or distributors to compensate a dealer based on the dealer's "effective nonwarranty labor rate" and "average percentage markup over dealer cost for parts." To be eligible for compensation, a dealer must provide the manufacturer, importer, or dealer with 100 sequential repair orders for qualifying nonwarranty repairs or all repair orders for qualifying nonwarranty repairs performed in a 90-day period. Qualifying nonwarranty repairs are repairs that are not covered by a warranty, but would be covered by the warranty of a manufacturer, importer, or distributor if the repaired vehicle was covered by the warranty. The effective nonwarranty labor rate is determined by dividing the total customer labor charges for qualifying nonwarranty repairs by the total number of hours that would be allowed for the repairs if the repairs were made under the manufacturer's, importer's, or distributors time allowances. The dealer's average percentage markup over dealer cost for parts is determined by dividing total charges for parts for qualifying nonwarranty repairs by the total dealer cost for the parts. Within 30 days of receiving the substantiating repair orders, the manufacturer, importer, or distributor must begin compensating the dealer based on the rates calculated from the orders. If there is a conflict between the rates calculated by the manufacturer, importer, or distributor and the dealer, the manufacturer, importer, or distributor must provide a written notice and explanation of the dispute to the dealer. These changes to service compensation do not apply to manufacturers, importers, or distributors of motorcycles.

Under current law, with certain exceptions, when a manufacturer on direct dealership, a distributor on indirect dealership, or an importer on direct dealership (grantor) has entered into an agreement with a motor vehicle dealer and the grantor or dealer terminates, cancels, or does not renew the agreement, the grantor must pay to the dealer specified termination benefits. Among these benefits, the grantor must repurchase from the dealer unsold motor vehicles, parts, and accessories that meet certain criteria and pay the dealer a certain amount for the dealership facilities, but then the grantor is entitled to the possession and use of the dealership facilities. Among the exceptions that allow a termination without payment of benefits are the termination, cancellation, or nonrenewal of an agreement following a determination that the dealer engaged in fraud or theft against the grantor and the termination or cancellation of an agreement by a dealer without adequate notice.

This substitute amendment generally requires payment of termination benefits upon the termination, cancellation, or nonrenewal of a franchise that may constitute less than the entire agreement between the grantor and dealer. This substitute amendment also generally requires a grantor to provide several additional items of termination benefits, including removing signs from the dealership facility, in certain cases, and reimbursing the dealer for certain computer material and service contractual expenses and certain facility renovation expenses. In addition, if the cancellation or nonrenewal of a franchise is due to a manufacturer's, importer's, or distributor's termination, cancellation, or discontinuation of a motor vehicle line make, the grantor must generally compensate the dealer in an amount not less than the fair market value of the terminated or nonrenewed franchise on the date immediately preceding the date the grantor announced the termination, cancellation, or discontinuation of the line make. The termination benefits changes do not apply to manufacturers, importers, or distributors of motorcycles. This substitute amendment also provides several additional exceptions that allow termination, cancellation, or nonrenewal of a franchise without the payment of termination benefits. These are termination, cancellation, or nonrenewal: 1) after revocation of a necessary dealer license; 2) based on the dealer's failure to remain open during customary business hours for seven consecutive days; 3) based on the dealer's conviction of certain crimes; and 4) based on the dealer being subject to a bankruptcy or receivership filing. These new exceptions do not apply to manufacturers, importers, or distributors of motorcycles or their dealers.

This substitute amendment also requires a manufacturer, importer, or distributor, other than a manufacturer, importer, or distributor of motorcycles, to indemnify a dealer against certain claims alleging defective or negligent manufacture or design of the vehicle or its parts or accessories. Failure to adequately indemnify a dealer may result in the revocation of the manufacturer's, importer's, or distributor's license or liability for the dealer's pecuniary losses and attorney fees.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB96-SSA1, s. 1 Section 1. 218.0116 (1) (km) of the statutes is amended to read:

SB96-SSA1,4,3 218.0116 (1) (km) Being a manufacturer, importer, or distributor who violates s. 218.0121, 218.0122, 218.0123, 218.0124 or, 218.0125, or 218.0128.

SB96-SSA1, s. 2 Section 2. 218.0116 (1) (rm) of the statutes is amended to read:

SB96-SSA1,4,9 218.0116 (1) (rm) Being a grantor, as defined in s. 218.0133 (1) (b), except a motorcycle grantor, as defined in s. 218.0133 (1) (c), who fails to pay a motor vehicle dealer agreement franchise termination benefits under s. 218.0133 or being a motorcycle grantor who fails to pay a motor vehicle dealer agreement termination benefits under s. 218.0133.

SB96-SSA1, s. 3 Section 3. 218.0116 (1) (um) of the statutes is created to read:

SB96-SSA1,4,15 218.0116 (1) (um) 1. In this paragraph, "site control contract" means a contract that grants authority to a manufacturer, importer, or distributor or an affiliate of a manufacturer, importer, or distributor, during the term of an agreement or after the termination, cancellation, or nonrenewal of an agreement, to control the disposition or use of or to lease the dealer's dealership facilities.

SB96-SSA1,5,10 2. Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer or prospective dealer of the manufacturer's, importer's, or distributor's motorcycles, who conditions entry into an agreement or renewal of an agreement or approval of the addition of a line make of motor vehicles, franchise relocation, ownership or management change, or transfer of dealership assets on the entry by the dealer or prospective dealer into a site control contract or who coerces or attempts to coerce a dealer or prospective dealer to enter into a site control contract. This subdivision does not prohibit a site control contract for which the dealer or prospective dealer receives a separate and valuable consideration. This subdivision does not apply to a site control contract that is in existence on the effective date of this subdivision .... [LRB inserts date], unless the contract is amended, modified, changed, or renewed after the effective date of this subdivision .... [LRB inserts date].

SB96-SSA1, s. 4 Section 4. 218.0116 (1) (vm) of the statutes is created to read:

SB96-SSA1,6,8 218.0116 (1) (vm) Unless the technology of a motor vehicle reasonably requires improvement of dealership facilities to accommodate the adequate sale and service of the motor vehicle or the reasonable business considerations of the manufacturer and dealer justify improvement of dealership facilities, being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer or prospective dealer of the manufacturer's, importer's, or distributor's motorcycles, who conditions entry into an agreement or renewal of an agreement or approval of the addition of a line make of motor vehicles, franchise relocation, ownership or management change, or transfer of dealership assets on the improvement of dealership facilities at a substantial cost to the dealer or prospective dealer or who coerces or attempts to coerce a dealer or prospective dealer to improve dealership facilities at a substantial cost to the dealer or prospective dealer. This paragraph does not prohibit improvement of dealership facilities at a substantial cost to the dealer or prospective dealer if the dealer or prospective dealer has agreed to undertake the improvement and received a separate and valuable consideration for the improvement. The burden of proof to demonstrate the technological necessity or business justification of the facilities improvement is on the manufacturer, importer, or distributor. This paragraph does not apply to an agreement to improve dealership facilities at a substantial cost to the dealer or prospective dealer that is in existence on the effective date of this paragraph .... [LRB inserts date], unless the agreement is amended, modified, changed, or renewed after the effective date of this paragraph .... [LRB inserts date].

SB96-SSA1, s. 5 Section 5. 218.0116 (1) (wm) of the statutes is created to read:

SB96-SSA1,6,25 218.0116 (1) (wm) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who unreasonably requires or coerces or attempts to coerce a dealer to provide or maintain exclusive facilities for a particular line make of motor vehicles or unreasonably refuses to permit or approve the addition of another line make to the dealership facilities of a dealer taking into consideration the reasonable business considerations of the manufacturer, importer, or distributor and the dealer. The burden of proof to demonstrate the reasonableness of the provision or maintenance of exclusive facilities or the refusal to permit or approve the addition of another line make is on the manufacturer, importer, or distributor. This paragraph does not apply to an agreement for a dealer to provide or maintain exclusive facilities for a particular line make of motor vehicles and for which the dealer has received separate and valuable consideration that is in existence on the effective date of this paragraph .... [LRB inserts date], unless the agreement is amended, modified, changed, or renewed after the effective date of this paragraph .... [LRB inserts date].

SB96-SSA1, s. 6 Section 6 . 218.0116 (1) (xm) of the statutes is created to read:

SB96-SSA1,7,8 218.0116 (1) (xm) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who charges back, withholds payment, denies vehicle allocation, or takes other adverse action against a dealer for charging a service fee to a retail customer in any amount that is not prohibited under ss. 218.0101 to 218.0163 or rules promulgated by the department of transportation under ss. 218.0101 to 218.0163.

SB96-SSA1, s. 7 Section 7. 218.0116 (1) (y) of the statutes is created to read:

SB96-SSA1,7,22 218.0116 (1) (y) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who charges back, withholds payment, denies vehicle allocation, or takes other adverse action against a dealer because a motor vehicle sold by the dealer has been exported to a foreign country unless the dealer knew or reasonably should have known that the purchaser intended to export the vehicle or resell the vehicle for export. If the motor vehicle is titled or registered in any state in this country, it is presumed that the dealer had no knowledge that the purchaser intended to export the vehicle or resell the vehicle for export. The manufacturer, importer, or distributor may rebut the presumption. The burden of proof to demonstrate that the dealer knew or reasonably should have known that the purchaser intended to export the vehicle or resell the vehicle for export is on the manufacturer, importer, or distributor.

SB96-SSA1, s. 8 Section 8. 218.0116 (1) (ym) of the statutes is created to read:

SB96-SSA1,8,7 218.0116 (1) (ym) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who requires or coerces, or attempts to require or coerce, a dealer to provide the manufacturer, importer, or distributor with information regarding the retail customers of the dealer unless the information is necessary for the sale and delivery of a new motor vehicle to a retail buyer, to validate and pay customer or dealer incentives, for warranty reimbursement substantiation under s. 218.0125, or to enable the manufacturer, importer, or distributor to fulfill safety, recall, or other legal obligations.

SB96-SSA1, s. 9 Section 9. 218.0116 (1) (ys) of the statutes is created to read:

SB96-SSA1,8,17 218.0116 (1) (ys) Being a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, who transfers nonpublic customer information that was obtained from a dealer to another franchised dealer while the dealer from which the information was obtained remains a franchised dealer unless the dealer from which the information was obtained agrees to the transfer, or who uses any nonpublic personal information, as defined in 16 CFR 313.3 (n), obtained from a dealer unless the use falls within an exception under 16 CFR 313.14 or 313.15.

SB96-SSA1, s. 10 Section 10. 218.0116 (10) of the statutes is amended to read:

SB96-SSA1,9,2 218.0116 (10) In addition to the licensor's authority to deny, suspend, or revoke a license under ss. 218.0101 to 218.0163, the division of banking, after public hearing, may issue a special order enjoining any licensee from engaging in any act or practice which is determined by the division of banking to be in violation of any provision of sub. (1), and the division of hearings and appeals may be petitioned to and, after notice and hearing, may issue such a special order after notice and hearing thereon enjoining a licensee from engaging in any act or practice which the division of hearing and appeals determines to be in violation of any provision of sub. (1).

SB96-SSA1, s. 11 Section 11. 218.0125 (1) of the statutes is renumbered 218.0125 (1) (intro.) and amended to read:

SB96-SSA1,9,5 218.0125 (1) (intro.) In this section, "dealer:

SB96-SSA1,9,8 (a) "Dealer cost" means the wholesale cost for a part as listed in the manufacturer's, importer's or distributor's current price schedules or, if the part is not so listed, the dealer's original invoice cost for the part.

SB96-SSA1, s. 12 Section 12. 218.0125 (1) (b) of the statutes is created to read:

SB96-SSA1,9,13 218.0125 (1) (b) "Qualifying nonwarranty repairs" means nonwarranty repairs that would be covered by the warranty of a manufacturer, importer, or distributor if the vehicle being repaired was covered by the warranty. The term does not include routine maintenance.

SB96-SSA1, s. 13 Section 13. 218.0125 (2) of the statutes is amended to read:

SB96-SSA1,9,24 218.0125 (2) A manufacturer, importer, or distributor shall, for the protection of the buying public, specify the delivery and preparation obligations of its dealers before delivery of new motor vehicles to retail buyers. Except for a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, the specification shall be in writing. A copy of the delivery and preparation obligations of its dealers shall be filed with the department of transportation by every licensed motor vehicle manufacturer, importer, or distributor and shall constitute the dealer's only responsibility for product liability as between the dealer and the manufacturer, importer , or distributor. Any mechanical, body, or parts defects arising from any express or implied warranties of the manufacturer, importer, or distributor shall constitute the manufacturer's, importer's, or distributor's product or warranty liability. The

SB96-SSA1,10,12 (2m) A manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles shall reasonably compensate any authorized dealer who performs work to rectify the manufacturer's, importer's, or distributor's product or warranty defects or delivery and preparation obligations or who performs any other work required, requested, or approved by the manufacturer, importer, or distributor or for which the manufacturer, importer, or distributor has agreed to pay, including compensation for labor at a labor rate equal to the effective labor rate charged all customers and for parts at an amount not less than the amount the dealer charges its other retail service customers for parts used in performing similar work by the dealer.

SB96-SSA1, s. 14 Section 14. 218.0125 (3) of the statutes is amended to read:

SB96-SSA1,11,3 218.0125 (3) To be eligible for compensation for parts under sub. (2) (2m), a dealer of motorcycles shall notify the manufacturer, importer, or distributor of motorcycles in writing of the amounts that the dealer charges its other retail service customers for parts and request that it be paid for parts in accordance with this section. The notice may be limited to the dealer's average markup over dealer cost that the dealer charges its other retail service customers for parts used to perform similar work. The notice shall be served upon the manufacturer, importer, or distributor not less than 30 days before the date on which the dealer requests that the manufacturer, importer, or distributor begin paying the dealer for parts at the stated amounts. The manufacturer, importer, or distributor shall pay the dealer, as provided in this section, at the amounts stated in the dealer notice for parts used in work performed on and after the beginning date stated in the notice. This section applies to a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles and those dealers.

SB96-SSA1, s. 15 Section 15. 218.0125 (3m) of the statutes is created to read:

SB96-SSA1,11,13 218.0125 (3m) (a) Subject to sub. (4m), a manufacturer, importer, or distributor, except a manufacturer, importer, or distributor of motorcycles with respect to a dealer of the manufacturer's, importer's, or distributor's motorcycles, shall reasonably compensate a dealer who performs work to rectify the product or warranty defects of the manufacturer, importer, or distributor or to satisfy delivery and preparation obligations of the manufacturer, importer, or distributor or who performs any other work required, requested, or approved by the manufacturer, importer, or distributor or for which the manufacturer, importer, or distributor has agreed to pay.

SB96-SSA1,11,19 (b) Reasonable compensation under par. (a) for labor is equal to the dealer's effective nonwarranty labor rate multiplied by the number of hours allowed for the repair under the manufacturer's, importer's, or distributor's time allowances used in compensating the dealer for warranty work. Reasonable compensation under par. (a) for parts is equal to the dealer's cost for the parts multiplied by the sum of 1 and the dealer's average percentage markup over dealer cost for parts.