218.01(8m)
(8m) Commencement of action. Upon the request of the licensor, the department of justice or the district attorney may commence an action in the name of the state to recover a forfeiture under
sub. (8). An action under
sub. (8) shall be commenced within 3 years after the occurrence of the unlawful act or practice which is the subject of the action.
218.01(9)(a)(a) Without exhausting any administrative remedy available under an agreement or this section, except as provided in
sub. (3) (f) and
(fm), a licensee may recover damages in a court of competent jurisdiction for pecuniary loss, together with actual costs including a reasonable attorney fee, if the pecuniary loss is caused by any of the following:
218.01(9)(a)1.
1. A violation by any other licensee of
sub. (3) (a) 4.,
11.,
15.,
16.,
17.,
22.,
23.,
24.,
26.,
32.,
35.,
36.,
37.,
38.,
39.,
40.,
41. or
43.
218.01(9)(a)2.
2. Any unfair practice found by a licensor or the division of hearings and appeals under
sub. (5) (a).
218.01(9)(am)
(am) If a court finds that a violation or practice described in
par. (a) 1. or
2. is wilful, a licensee shall recover damages in an amount equal to 3 times the pecuniary loss, together with actual costs including reasonable attorney fees.
218.01(9)(b)
(b) Any retail buyer, lessee or prospective lessee suffering pecuniary loss because of a violation by a licensee of
sub. (3) (a) 4.,
5.,
6.,
8.,
9.,
10.,
11.,
18.,
25. or
31. may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees.
218.01 History
History: 1971 c. 112,
125;
1971 c. 164 ss.
64,
83;
1971 c. 228,
239;
1973 c. 171,
243;
1975 c. 94,
121,
263,
361;
1975 c. 375 s.
44;
1975 c. 407,
421,
422;
1977 c. 29 ss.
1363 to
1372,
1654 (7) (a), (c);
1977 c. 270,
273,
288,
405,
418,
447;
1979 c. 34,
168,
221;
1981 c. 45 ss.
24,
25,
51;
1981 c. 100,
272;
1981 c. 347 s.
80 (2);
1981 c. 382;
1981 c. 390 s.
252;
1983 a. 36 ss.
76,
77,
96 (1);
1983 a. 147,
153,
154;
1983 a. 189 ss.
240,
241,
329 (30);
1983 a. 192,
243,
460;
1985 a. 29,
202,
205,
332;
1987 a. 27,
251;
1989 a. 31,
292,
336,
359;
1991 a. 39,
269,
298,
316;
1993 a. 13,
16,
112,
159,
161,
490;
1995 a. 27,
113,
225,
329,
417;
1997 a. 27,
48,
120,
191,
237.
218.01 Annotation
Section 180.847 (1), 1987 stats. [now s. 180.1502 (1)], prescribing that no foreign corporation transacting business in the state without a certificate of authority, if required, shall be permitted to maintain or defend a civil action or special proceeding, until it obtains a certificate of authority—and s. 218.01 (2) (bd) 3—providing that the obtaining of a license under the Motor Vehicle Dealers Law shall conclusively establish that such distributor is doing business in this state—have entirely different purposes and meanings. Nagle Motors v. Volkswagen N. C. Distributor, 51 W (2d) 413, 187 NW (2d) 374.
218.01 Annotation
When an instalment sale contract is signed in blank it is void. Vic Hansen & Sons, Inc. v. Crowley, 57 W (2d) 106, 203 NW (2d) 728.
218.01 Annotation
"Wilful" under sub. (3) (a) 6. includes both non-accidental and fraudulent acts. State need not prove intent to deceive buyer under sub. (3) (a) 18. Dept. of Transp. v. Transp. Comm. 105 W (2d) 678, 315 NW (2d) 371 (Ct. App. 1981), aff'd 111 W (2d) 80, 330 NW (2d) 159 (1983).
218.01 Annotation
Only licensee may recover under this section; claim must be related to scope of license. Ford Motor Co. v. Lyons, 137 W (2d) 397, 405 NW (2d) 354 (Ct. App. 1987).
218.01 Annotation
Under sub. (3) (b) commissioner may conduct de novo review of department's decision and may substitute own judgment for that of department. DOT v. Office of Com'r of Transp. 159 W (2d) 271, 463 NW (2d) 870 (Ct. App. 1990).
218.01 Annotation
See note to s. 19.21, citing 66 Atty. Gen. 302.
218.01 Annotation
Wisconsin has a compelling interest in applying statutory regulations to banking activities on Indian reservations.
80 Atty. Gen. 337.
218.01 Annotation
Sub. (3) (a) 11. is applicable to manufacturers. Bob Willow Motors, Inc. v. General Motors Corp. 872 F (2d) 788 (1989).
218.01 Annotation
The application of sub. (3x) to a contract executed prior to the enactment of sub. (3x) did not violate the contracts clause of the U.S. constitution. Chrysler Corp. v. Kolosso Auto Sales, Inc. 148 F 3d 892 (1998).
218.01 Annotation
The statute requires an initial determination by the division under sub. (5) (a), but no such requirement is imposed on claims under sub. (3) (a) 11. Mossner Porsche Audi, Inc. v. Volkswagenwerk, A. G. 397 F Supp. 71.
218.015
218.015
Repair, replacement and refund under new motor vehicle warranties. 218.015(1)(a)
(a) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining alternative transportation.
218.015(1)(b)1.
1. The purchaser of a new motor vehicle, if the motor vehicle was purchased from a motor vehicle dealer for purposes other than resale.
218.015(1)(b)2.
2. A person to whom the motor vehicle is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motor vehicle.
218.015(1)(b)4.
4. A person who leases a motor vehicle from a motor vehicle lessor under a written lease.
218.015(1)(bd)
(bd) "Demonstrator" means used primarily for the purpose of demonstration to the public.
218.015(1)(bg)
(bg) "Early termination cost" means any expense or obligation a motor vehicle 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 a motor vehicle to a manufacturer under
sub. (2) (b) 3. "Early termination cost" includes a penalty for prepayment under a finance arrangement.
218.015(1)(bj)
(bj) "Early termination savings" means any expense or obligation a motor vehicle lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motor vehicle to a manufacturer under
sub. (2) (b) 3. "Early termination savings" includes an interest charge the motor vehicle lessor would have paid to finance the motor vehicle or, if the motor vehicle lessor does not finance the motor vehicle, 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.
218.015(1)(bp)
(bp) "Executive" means used primarily by an executive of a licensed manufacturer, distributor or dealer, and not used for demonstration to the public.
218.015(1)(c)
(c) "Manufacturer" means a manufacturer as defined in
s. 218.01 (1) (L) and agents of the manufacturer, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's motor vehicles, but not including a motor vehicle dealer.
218.015(1)(d)
(d) "Motor vehicle" means any motor driven vehicle required to be registered under
ch. 341 or exempt from registration under
s. 341.05 (2), including a demonstrator or executive vehicle not titled or titled by a manufacturer or a motor vehicle dealer, which a consumer purchases or accepts transfer of in this state. "Motor vehicle" does not mean a moped, semitrailer or trailer designed for use in combination with a truck or truck tractor.
218.015(1)(em)
(em) "Motor vehicle lessor" means a person who holds title to a motor vehicle leased to a lessee, or who holds the lessor's rights, under a written lease.
218.015(1)(f)
(f) "Nonconformity" means a condition or defect which substantially impairs the use, value or safety of a motor vehicle, and is covered by an express warranty applicable to the motor vehicle or to a component of the motor vehicle, but does not include a condition or defect which is the result of abuse, neglect or unauthorized modification or alteration of the motor vehicle by a consumer.
218.015(1)(h)
(h) "Reasonable attempt to repair" means any of the following occurring within the term of an express warranty applicable to a new motor vehicle or within one year after first delivery of the motor vehicle to a consumer, whichever is sooner:
218.015(1)(h)1.
1. The same nonconformity with the warranty is subject to repair by the manufacturer, motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers at least 4 times and the nonconformity continues.
218.015(1)(h)2.
2. The motor vehicle is out of service for an aggregate of at least 30 days because of warranty nonconformities.
218.015(2)(a)(a) If a new motor vehicle does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers and makes the motor vehicle available for repair before the expiration of the warranty or one year after first delivery of the motor vehicle to a consumer, whichever is sooner, the nonconformity shall be repaired.
218.015(2)(b)1.1. If after a reasonable attempt to repair the nonconformity is not repaired, the manufacturer shall carry out the requirement under
subd. 2. or
3., whichever is appropriate.
218.015(2)(b)2.a.
a. Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs.
218.015(2)(b)2.b.
b. Accept return of the motor vehicle and refund to the consumer and to any holder of a perfected security interest in the consumer's motor vehicle, as their interest may appear, the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. Under this subdivision, a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the motor vehicle by a fraction, the denominator of which is 100,000 or, for a motorcycle, 20,000, and the numerator of which is the number of miles the motor vehicle was driven before the consumer first reported the nonconformity to the motor vehicle dealer.
218.015(2)(b)3.a.a. With respect to a consumer described in
sub. (1) (b) 4., accept return of the motor vehicle, refund to the motor vehicle lessor and to any holder of a perfected security interest in the motor vehicle, as their interest may appear, the current value of the written lease and refund to the consumer the amount the consumer paid under the written lease plus any sales tax and collateral costs, less a reasonable allowance for use.
218.015(2)(b)3.b.
b. Under this subdivision, 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 motor vehicle dealer's early termination costs and the value of the motor vehicle at the lease expiration date if the lease sets forth that value, less the motor vehicle lessor's early termination savings.
218.015(2)(b)3.c.
c. Under this subdivision, 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 100,000 and the numerator of which is the number of miles the consumer drove the motor vehicle before first reporting the nonconformity to the manufacturer, motor vehicle lessor or motor vehicle dealer.
218.015(2)(c)
(c) To receive a comparable new motor vehicle or a refund due under
par. (b) 1. or
2., a consumer described under
sub. (1) (b) 1.,
2. or
3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund. When the manufacturer provides the new motor vehicle or refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer.
218.015(2)(cm)1.1. To receive a refund due under
par. (b) 3., a consumer described under
sub. (1) (b) 4. shall offer to the manufacturer of the motor vehicle having the nonconformity to return that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer.
218.015(2)(cm)2.
2. To receive a refund due under
par. (b) 3., a motor vehicle lessor shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motor vehicle lessor. When the manufacturer provides the refund, the motor vehicle lessor shall provide to the manufacturer the certificate of title and all endorsements necessary to transfer title to the manufacturer.
218.015(2)(cm)3.
3. No person may enforce the lease against the consumer after the consumer receives a refund due under
par. (b) 3.
218.015(2)(d)
(d) No motor vehicle returned by a consumer or motor vehicle lessor in this state under
par. (b), or by a consumer or motor vehicle 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.
218.015(2)(e)
(e) The department of revenue shall refund to the manufacturer any sales tax which the manufacturer refunded to the consumer under
par. (b) if the manufacturer provides to the department of revenue a written request for a refund along with evidence that the sales tax was paid when the motor vehicle was purchased and that the manufacturer refunded the sales tax to the consumer. The department may not refund any sales tax under this paragraph if it has made a refund in connection with the same motor vehicle under
par. (f).
218.015(2)(f)
(f) The department of revenue shall refund to a consumer described under
sub. (1) (b) 1.,
2. or
3. all or part of the sales tax paid by the consumer on the purchase of a new motor vehicle, based on the amount of the refund of the purchase price of the motor vehicle actually received by the consumer, if all of the following apply:
218.015(2)(f)1.
1. The consumer returned the motor vehicle to its manufacturer and received a refund of all or part of the purchase price but not the corresponding amount of sales tax.
218.015(2)(f)2.
2. The consumer bought the new motor vehicle after November 2, 1983.
218.015(2)(f)3.
3. The consumer provides the department of revenue with a written request for a refund of the sales tax along with evidence that the consumer received a certain amount as a refund of the purchase price of the motor vehicle from the manufacturer, that the sales tax was paid when the motor vehicle was bought new and that the manufacturer did not refund the sales tax to the consumer.
218.015(2)(f)4.
4. The department of revenue has not made a refund under
par. (e) in connection with the motor vehicle.
218.015(3)
(3) If there is available to the consumer an informal dispute settlement procedure which is certified under
sub. (4), the consumer may not bring an action under
sub. (7) unless he or she first resorts to that procedure.
218.015(4)(a)(a) The department of transportation shall adopt rules specifying the requirements with which each informal dispute settlement procedure shall comply. The rules shall require each person establishing an informal dispute settlement procedure to do all of the following:
218.015(4)(a)1.
1. Provide rights and procedures at least as favorable to the consumer as are required under
16 CFR Part 703, in effect on November 3, 1983.
218.015(4)(a)2.
2. If after a reasonable attempt to repair the nonconformity is not repaired, require the manufacturer to provide a remedy as set forth under
sub. (2) (b).
218.015(4)(b)
(b) The department of transportation shall investigate each informal dispute settlement procedure provided in this state to determine whether it complies with the rules adopted under
par. (a). The department shall certify each informal dispute settlement procedure which complies. The department may revoke certification if it determines that an informal dispute settlement procedure no longer complies with the rules promulgated under
par. (a). Annually, the department shall publish a report evaluating the informal dispute settlement procedures provided in this state, stating whether those procedures are certified and stating the reasons for the failure of any procedure to obtain certification or for the revocation of any certification.
218.015(4)(c)
(c) Any person who establishes an informal dispute settlement procedure the certification of which is denied or revoked by the department of transportation may appeal that denial or revocation under
ch. 227.
218.015(4)(d)
(d) Annually, any person who establishes an informal dispute settlement procedure shall file with the department of transportation a copy of the annual audit required under
16 CFR Part 703 or a substantially similar audit and any additional information the department requires in order to evaluate informal dispute settlement procedures.
218.015(4)(e)
(e) The department of transportation may consider whether a manufacturer obtains certification under this subsection in determining whether to issue a manufacturer's license to do business in this state.
218.015(5)
(5) This section does not limit rights or remedies available to a consumer under any other law.
218.015(6)
(6) Any waiver by a consumer of rights under this section is void.
218.015(7)
(7) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this section. 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 the court determines appropriate.
218.015 Annotation
Action to recover under (1) (h) 2 was not defeated by repair of reported nonconformities. Hartlaub v. Coachman Industries, Inc., 143 W (2d) 791, 422 NW (2d) 869 (Ct. App. 1988).
218.015 Annotation
"Out of service" under (1) (h) 2. includes periods during which motor vehicle is incapable of providing service because of warranty nonconformity, regardless of whether vehicle is in owner's possession and driveable. Vultaggio v. General Motors Corp. 145 W (2d) 874, 429 NW (2d) 93 (Ct. App. 1988).
218.015 Annotation
"Disbursements and reasonable attorney fees" under (7) include those disbursements and reasonable fees incurred as a result of litigating fees. Chmill v. Friendly Ford-Mercury, 154 W (2d) 407, 453 NW (2d) 197 (Ct. App. 1990).
218.015 Annotation
Sub. (2) (c) does not require that vehicle continue to have nonconformity for consumer to demand refund when vehicle has been out of service at least thirty days; "having the nonconformity" is general reference to vehicle in question, rather than refund prerequisite. Nick v. Toyota Motor Sales, 160 W (2d) 373, 466 NW (2d) 215 (Ct. App. 1991).
218.015 Annotation
Under (1) (a) allowance for alternate transportation is limited to cost in connection with repair of nonconforming vehicle. Nick v. Toyota Motor Sales, 160 W (2d) 373, 466 NW (2d) 215 (Ct. App. 1991).
218.015 Annotation
If one gives notice and a single opportunity to repair, one cannot refuse additional attempts to repair within thirty days and sue under lemon law. Carl v. Spickler Enterprises Ltd., 165 W (2d) 611, 478 NW (2d) 48 (Ct. App. 1991).
218.015 Annotation
Although plaintiff arguably granted the automaker an extension of the 30 day period under sub. (2) (c), the prohibition of waivers of claims under sub. (6) resulted in the automaker being liable for failing to satisfy the claim within the 30 day period. Hughes v. Chrysler Motors. Corp. 188 W (2d) 1, 523 NW (2d) 197 (Ct. App. 1994).
218.015 Annotation
Attorney time spent prior to the expiration of the 30 day period under sub. (2) (c) is recoverable under sub. (7). Hughes v. Chrysler Motors. Corp. 188 W (2d) 1, 523 NW (2d) 197 (Ct. App. 1994).
218.015 Annotation
A manufacturer is not liable for defects in dealer added accessories not manufactured or distributed by the manufacturer. Malone v. Nissan Motor Corp. 190 W (2d) 436, 526 NW (2d) 841 (Ct. App. 1994).
218.015 Annotation
Pecuniary loss under sub. (7) includes the entire purchase price of the vehicle. Hughes v. Chrysler Motor Corp. 197 W (2d) 974, 542 NW (2d) 148 (1996).
218.015 Annotation
"Days" under (1) (h) includes weekends and holidays. Kletzien v. Ford Motor Co., 668 F Supp. 1225 (E. D. Wis. 1987).
218.015 Annotation
Remedies for motor vehicle purchasers. Nicks, WBB March, 1985.
218.015 Annotation
Lemon law II. Nicks. WBB July 1987.
218.015 Annotation
A New Twist On the Lemon Law. Nicks. Wis. Law. Oct. 1991.
218.015 Annotation
Fill 'Er Up: Supreme Court Orders High Octane Relief Under Wisconsin's Lemon Law. Nicks. Wis. Law. June 1996.
