218.0161 History
History: 1999 a. 31 s.
281;
1999 a. 138;
2001 a. 38.
218.0162
218.0162
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
s. 218.0161. An action under
s. 218.0161 shall be commenced within 3 years after the occurrence of the unlawful act or practice which is the subject of the action.
218.0162 History
History: 1999 a. 31 s.
282.
218.0163(1)(1) Without exhausting any administrative remedy available under an agreement or
ss. 218.0101 to
218.0163, except as provided in
ss. 218.0116 (7) and
(8) and
218.0134, a licensee may recover damages in a court of competent jurisdiction for pecuniary loss, together with actual costs including reasonable attorney fees, if the pecuniary loss is caused by any of the following:
218.0163(1)(a)
(a) A violation by any other licensee of
s. 218.0116 (1) (bm),
(f),
(h),
(hm),
(i),
(km),
(L),
(Lm),
(mm),
(pm),
(q),
(qm),
(r),
(rm),
(s),
(sm),
(t),
(u),
(v),
(w), or
(x).
218.0163(1)(c)
(c) An affected grantor's disapproval of a proposed action under
s. 218.0134 (2) (b), if the division of hearings and appeals has determined that there is not good cause for not permitting the proposed action to be undertaken following a hearing under
s. 218.0134 (2) (c). A dealer may recover under this paragraph even if the affected grantor complies with the order of the division of hearing and appeals under
s. 218.0134 (3) (b). If a dealer recovers damages for pecuniary loss, actual costs under this paragraph also include actual costs, including reasonable attorney fees, incurred by the dealer in obtaining the division of hearings and appeals' determination of good cause.
218.0163(1m)
(1m) If a court finds that a violation or practice described in
sub. (1) (a) or
(b) is willful, a licensee shall recover damages in an amount equal to 3 times the pecuniary loss, together with actual costs including reasonable attorney fees.
218.0163(1q)
(1q) In any action brought under this subsection, the burden of proof as to liability shall be the same as set forth in
ss. 218.0114 (7) (d),
218.0116 (7) (b), and
218.0116 (8) (b) regarding complaints brought before the division of hearings and appeals, but the burden of proof as to damages shall be on the licensee seeking damages.
218.0163(1r)
(1r) For purposes of
subs. (1) and
(1m), "licensee" means a person or entity holding a license at the time the cause of action arose regardless of whether the person or entity holds a license at the time an action under this section is commenced.
218.0163(2)
(2) Any retail buyer, lessee or prospective lessee suffering pecuniary loss because of a violation by a licensee of
s. 218.0116 (1) (bm),
(c),
(cm),
(dm),
(e),
(em),
(f),
(im),
(m) or
(p) may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees.
218.0163(3)
(3) A complainant or petitioner who prevails against a manufacturer, importer, or distributor as a result of a complaint or petition filed with the division of hearings and appeals based on an alleged violation of
ss. 218.0101 to
218.0163 or under
s. 218.0116 (7) or
(8) or
218.0134 shall have a cause of action against the manufacturer, importer, or distributor for reasonable expenses and attorney fees incurred by the complainant or petitioner in connection with all proceedings resulting from the complaint or petition. This subsection does not apply:
218.0163(3)(a)
(a) If the division of hearings and appeals finds that the manufacturer, importer, or distributor was substantially justified or that special circumstances make an award of expenses and attorney fees unjust.
218.0163 Annotation
Only a licensee may recover under this section; a claim must be related to the scope of the license. Ford Motor Co. v. Lyons,
137 Wis. 2d 397,
405 N.W.2d 354 (Ct. App. 1987).
218.0163 Annotation
Sub. (2) authorizes recovery of reasonable costs and reasonable attorney fees by retail purchasers who prevail on claims under s. 218.0116. Sub. (2) and s. 218.0116 manifest a legislative purpose to provide recovery of the reasonable expenses of the litigation, and such an interpretation is necessary to harmonize otherwise conflicting provisions of sub. (2) and 814.04. Recovery of only s. 814.04 enumerated costs would discourage litigants with legitimate claims from seeking relief and undermine the statute's effectiveness in suppressing prohibited mischief. Kolupar v. Wilde Pontiac Cadillac, Inc. 2007 WI 98,
303 Wis. 2d 258,
735 N.W.2d 93,
05-0935.
218.0163 Annotation
A dealer's refusal to sell the manufacturer's products after filing a complaint under s. 218.01 (2) (bd) 2. [now 218.0114 (7) (d)] is a violation of that provision, and consequently of s. 218.01 (3) (a) 4. [now 218.0116 (1) (bm)], entitling the manufacturer to treble damages under sub. (9) (am) [now s. 218.0163]. American Suzuki Motor Corp. v. Bill Kummer, Inc.
65 F.3d 1381 (1995).
218.0171
218.0171
Repair, replacement and refund under new motor vehicle warranties. 218.0171(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.
218.0171(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.
218.0171(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.
218.0171(1)(b)4.
4. A person who leases a motor vehicle from a motor vehicle lessor under a written lease.
218.0171(1)(bd)
(bd) "Demonstrator" means used primarily for the purpose of demonstration to the public.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(1)(c)
(c) "Manufacturer" means a manufacturer as defined in
s. 218.0101 (20) 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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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:
218.0171(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.
218.0171(1)(h)2.
2. The motor vehicle is out of service for an aggregate of at least 30 days because of warranty nonconformities.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(2)(cm)3.
3. No person may enforce the lease against the consumer after the consumer receives a refund due under
par. (b) 3.
218.0171(2)(cq)
(cq) Upon payment of a refund to a consumer under
par. (b) 2. b., the manufacturer shall provide to the consumer a written statement that specifies the trade-in amount previously applied under
s. 77.51 (12m) (b) 5. or
6. or
(15b) (b) 5. or
6. toward the sales price of the motor vehicle having the nonconformity and the date on which the manufacturer provided the refund.
218.0171(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.
218.0171(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).
218.0171(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:
218.0171(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.
218.0171(2)(f)2.
2. The consumer bought the new motor vehicle after November 2, 1983.
218.0171(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.
218.0171(2)(f)4.
4. The department of revenue has not made a refund under
par. (e) in connection with the motor vehicle.
218.0171(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.
218.0171(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:
218.0171(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.
218.0171(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).
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(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.
218.0171(5)
(5) This section does not limit rights or remedies available to a consumer under any other law.
218.0171(6)
(6) Any waiver by a consumer of rights under this section is void.
218.0171(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.
218.0171 Cross-reference
Cross-reference: See also ch.
Trans 143, Wis. adm. code.
218.0171 Annotation
An action to recover under sub. (1) (h) 2. was not defeated by the repair of reported nonconformities. Hartlaub v. Coachman Industries, Inc.,
143 Wis. 2d 791,
422 N.W.2d 869 (Ct. App. 1988).
218.0171 Annotation
"Out of service" under sub. (1) (h) 2. includes periods during which the motor vehicle is incapable of providing service because of warranty nonconformity, regardless of whether the vehicle is in the owner's possession and driveable. Vultaggio v. General Motors Corp.
145 Wis. 2d 874,
429 N.W.2d 93 (Ct. App. 1988).
218.0171 Annotation
"Disbursements and reasonable attorney fees" under sub. (7) include post-trial disbursements and reasonable fees incurred. Chmill v. Friendly Ford-Mercury,
154 Wis. 2d 407,
453 N.W.2d 197 (Ct. App. 1990).
218.0171 Annotation
Sub. (2) (c) does not require that a vehicle continue to have a nonconformity for a consumer to demand a refund when the vehicle has been out of service at least 30 days; "having the nonconformity" is a general reference to the vehicle in question, rather than a refund prerequisite. Nick v. Toyota Motor Sales,
160 Wis. 2d 373,
466 N.W.2d 215 (Ct. App. 1991).
218.0171 Annotation
Under sub. (1) (a), the allowance for alternate transportation is limited to the cost in connection with the repair of the nonconforming vehicle. Nick v. Toyota Motor Sales,
160 Wis. 2d 373,
466 N.W.2d 215 (Ct. App. 1991).
218.0171 Annotation
If the owner gives notice and a single opportunity to repair, the owner cannot refuse additional attempts to repair within 30 days and sue under the lemon law. Carl v. Spickler Enterprises Ltd.
165 Wis. 2d 611,
478 N.W.2d 48 (Ct. App. 1991).
218.0171 Annotation
Although the 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 Wis. 2d 1,
523 N.W.2d 197 (Ct. App. 1994). Affirmed on other grounds
197 Wis. 2d 974,
542 N.W.2d 148 (1996),
95-0208.
218.0171 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 Wis. 2d 436,
526 N.W.2d 841 (Ct. App. 1994).
218.0171 Annotation
Pecuniary loss under sub. (7) includes the entire purchase price of the vehicle. Hughes v. Chrysler Motor Corp.
197 Wis. 2d 974,
542 N.W.2d 148 (1996),
95-0208.
218.0171 Annotation
The 30-day time limit in sub. (2) (c) is not suspended or delayed by the parties disagreement over the amount of the refund. The manufacturer's options are to, within the 30-day period, pay the amount demanded or pay the amount it deems appropriate and be subject to possible suit over the disputed amount. Church v. Chrysler Corp.
221 Wis. 2d 460,
585 N.W.2d 685 (Ct. App. 1998),
97-2065.
218.0171 Annotation
It is proper to deduct the amount of a cash rebate in determining the refund amount. Church v. Chrysler Corp.
221 Wis. 2d 460,
585 N.W.2d 685 (Ct. App. 1998),
97-2065.
