Chapter 218

218.0133(4)(f) (f) If the termination, cancellation, or nonrenewal relates to fewer than all of the franchises operated by a dealer at a single location, the amount of the termination benefit under this subsection shall be based on the percentage of total square footage attributed to the franchise being terminated, cancelled, or not renewed at the effective date of the termination, cancellation, or nonrenewal. This paragraph does not apply to a motorcycle grantor.

218.0133(5) (5) 

218.0133(5)(a) (a) Subsections (2) and (4) do not apply to any of the following:

218.0133(5)(a)1. 1. A motor vehicle dealer if a court, a licensor or the division of hearings and appeals determines that the motor vehicle dealer engaged in fraud or theft against the grantor in connection with the operation or management of its dealership under an agreement.

218.0133(5)(a)2. 2. A motor vehicle dealer who terminates or cancels an agreement with a motorcycle grantor without giving the grantor 60 days’ notice or the notice required under the agreement, whichever is less or who terminates or cancels a franchise with a grantor that is not a motorcycle grantor without giving the grantor 60 days’ notice or the notice required under the agreement, whichever is less.

218.0133(5)(a)3. 3. A motor vehicle dealer who does not give the grantor a written request for termination benefits that specifies the benefits sought within 60 days after the effective date of the termination, cancellation or nonrenewal.

218.0133(5)(a)4. 4. A motor vehicle dealer who sells its dealership assets to a 3rd party who becomes a successor motor vehicle dealer under an agreement with the grantor.

218.0133(5)(a)4d. 4d. A motor vehicle dealer who has any license that is required to operate its dealership revoked. This subdivision does not apply to a motorcycle grantor or a dealer of its motorcycles with respect to the motorcycle grantor.

218.0133(5)(a)4h. 4h. A termination, cancellation or nonrenewal based on the motor vehicle dealer’s failure to conduct its customary sales and service operations during its customary business hours for 7 consecutive business days unless the failure is caused by an act of God, work stoppage or delays due to strikes or labor disputes, an order of the department of transportation or the division of hearings and appeals, or other circumstances beyond the dealer’s control. This subdivision does not apply to a motorcycle grantor or a dealer of its motorcycles with respect to the motorcycle grantor.

218.0133(5)(a)4p. 4p. A termination, cancellation, or nonrenewal based on the conviction of a motor vehicle dealer of a crime involving theft, dishonesty, or false statement, or any other crime punishable by imprisonment for greater than one year. This subdivision does not apply to a motorcycle grantor or a dealer of its motorcycles with respect to the motorcycle grantor.

218.0133(5)(a)4t. 4t. A termination, cancellation, or nonrenewal based on the motor vehicle dealer being subject to a bankruptcy or receivership filing unless the petition is dismissed not more than 30 days after the filing date. This subdivision does not apply to a motorcycle grantor or a dealer of its motorcycles with respect to the motorcycle grantor.

218.0133(5)(a)5. 5. A motor vehicle dealer who terminates, cancels or fails to renew an agreement to sell motor homes, as defined in s. 340.01 (33m), unless a court, a licensor or the division of hearings and appeals determines that the grantor has not acted in good faith or has materially violated the agreement or a provision of ss. 218.0101 to 218.0163 and determines that the motor vehicle dealer has not acted in bad faith or has not violated the agreement or a provision of ss. 218.0101 to 218.0163.

218.0133(5)(a)6. 6. An agreement under which a motor vehicle dealer sells a camping trailer, as defined in s. 340.01 (6m), or a trailer, as defined in s. 340.01 (71), but only to the extent that the agreement covers camping trailers or trailers.

218.0133(5)(b) (b) Subsection (2) does not apply to a motor vehicle dealer who is unable to convey clear title to property under sub. (2) (b) to (e) on the date on which the grantor takes delivery of the property.

218.0133(5)(c) (c) Subsection (2) does not apply to property under sub. (2) (b) to (e) that is acquired by a motor vehicle dealer from another motor vehicle dealer if the property is acquired after the motor vehicle dealer receives or gives notice of termination, cancellation or nonrenewal or if the property was acquired other than in the ordinary course of the motor vehicle dealer’s business.

218.0133(5)(d) (d) Subsection (4) does not apply if a motorcycle grantor terminates, cancels, or fails to renew an agreement in compliance with s. 218.0116 (1) (i), unless the primary ground for termination, cancellation, or nonrenewal is inadequate sales performance by the motor vehicle dealer or if a grantor that is not a motorcycle grantor terminates, cancels, or fails to renew a franchise in compliance with s. 218.0116 (1) (i), unless the primary ground for termination, cancellation, or nonrenewal is inadequate sales performance by the motor vehicle dealer or termination, cancellation, or discontinuation of a motor vehicle line make.

218.0133(6) (6) 

218.0133(6)(a) (a) This section does not restrict the right of a motor vehicle dealer to pursue any other remedy available against a grantor who terminates, cancels or does not renew an agreement.

218.0133(6)(b) (b) A motorcycle grantor may not make the termination benefits payments under sub. (2) or (4) contingent on the motor vehicle dealer releasing or waiving any rights, claims, or remedies and a grantor that is not a motorcycle grantor may not make the termination benefits payments under sub. (2), (4), or (7) contingent on the motor vehicle dealer releasing or waiving any rights, claims, or remedies.

218.0133(7) (7) If a grantor except a motorcycle grantor cancels or fails to renew a franchise under s. 218.0132 (2), in addition to the termination benefits provided in subs. (2) and (4), the grantor shall compensate the dealer in an amount not less than the fair market value of the franchise terminated or not renewed on the date immediately preceding the date the manufacturer, importer, or distributor publicly announced the termination, cancellation, or discontinuation of the line make that resulted in the franchise cancellation or nonrenewal. The manufacturer, importer, or distributor shall provide the compensation under this subsection not more than 90 days after the effective date of the cancellation or nonrenewal.

218.0133 History History: 1999 a. 31 ss. 210 to 234; 2011 a. 91.

218.0134 218.0134 Dealership changes.

218.0134(1) (1) In this section, “affected grantor” means a manufacturer on direct dealerships, a distributor on indirect dealerships or an importer on direct dealerships that has entered into an agreement with a motor vehicle dealer and that is directly affected by an action proposed to be undertaken by the dealer under this section.

218.0134(2) (2) 

218.0134(2)(a) (a) If a motor vehicle dealer’s agreement with an affected grantor requires the grantor’s prior approval of an action proposed to be undertaken by the dealer under this section, a dealer may not voluntarily change its ownership or executive management, transfer its dealership assets to another person, add another franchise at the same location as its existing franchise or relocate a franchise without giving prior written notice of the proposed action to the affected grantor and to the department of transportation. Within 20 days after receiving the notice, the affected grantor may serve the dealer with a written list of the information not already known or in the possession of the grantor that is reasonably necessary in order for the grantor to determine whether the proposed action should be approved. The grantor shall, in good faith, confirm in writing to the dealer the date on which it has received from the dealer or from other sources all the information specified on the list.

218.0134(2)(b) (b) An affected grantor who does not approve of the proposed action shall, within 30 days after receiving the dealer’s written notice of the proposed action or within 30 days after receiving all the information specified in a written list served on the dealer under par. (a), whichever is later, file with the department of transportation and serve upon the dealer a written statement of the reasons for its disapproval. The publication of the reasons given for the disapproval or any explanation of those reasons by the manufacturer, distributor or importer shall not subject the manufacturer, distributor or importer to any civil liability unless the reasons given or explanations made are malicious and published with the sole intent to cause harm to the dealer or a transferee of the dealer. Failure to file and serve a statement within the applicable period shall, notwithstanding the terms of any agreement, constitute approval of the proposed action by the grantor. If an affected grantor files a written statement within the applicable period, the dealer may not voluntarily undertake the proposed action unless it receives an order permitting it to do so from the division of hearings and appeals under sub. (3) (b).

218.0134(2)(c) (c) A dealer who is served with a written statement by an affected grantor under par. (b) may file with the department of transportation and the division of hearings and appeals and serve upon the affected grantor a complaint for the determination of whether there is good cause for not permitting the proposed action to be undertaken. The burden of proof for showing there is good cause for not permitting the proposed action shall be on the affected grantor. The division of hearings and appeals shall promptly schedule a hearing and decide the matter. The proposed action may not be undertaken pending the determination of the matter.

218.0134(3) (3) 

218.0134(3)(am) (am) The division of hearings and appeals may determine there is good cause for not permitting a proposed action to be undertaken only if the prospective benefits to the affected grantor, the dealer, the public, and other dealers if the proposed action is not undertaken outweigh the prospective harms to the dealer, the affected grantor, the public, and other dealers if the proposed action is not undertaken.

218.0134(3)(b) (b) The decision of the division of hearings and appeals shall be in writing and shall contain findings of fact and a determination of whether there is good cause for not permitting the proposed action to be undertaken. The decision shall include an order that the dealer be allowed or is not allowed to undertake the proposed action, as the case may be. The order may require fulfillment of appropriate conditions before and after the proposed action is undertaken.

218.0134(4) (4) This section does not apply to:

218.0134(4)(b) (b) A proposed action that would require an affected grantor to give notice under s. 218.0116 (7) (a), except that the dealer must have the affected grantor’s written approval before undertaking any such proposed action.

218.0134(4)(c) (c) The exercise by an affected grantor under an agreement of the right of first refusal to acquire the dealer’s assets in the event of a proposed change of ownership or transfer of dealership assets, if all of the following requirements are met:

218.0134(4)(c)1. 1. The exercise of the right of first refusal will result in the dealer and the dealer’s owners receiving the same or greater consideration as they have contracted to receive in connection with the proposed change of ownership or transfer of dealership assets.

218.0134(4)(c)2. 2. The proposed change of ownership or transfer of dealership assets does not involve the transfer of assets or the transfer or issuance of stock by the dealer or one or more dealer owners to one or more immediate family members of one or more dealer owners or to a qualifying member of the dealer’s management or to a partnership, limited liability company or corporation controlled by those persons. In this subdivision:

218.0134(4)(c)2.a. a. “Immediate family member” means the spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the dealer owner.

218.0134(4)(c)2.b. b. “Qualifying member of the dealer’s management” means an individual who has been employed by the dealer for at least 2 years and who otherwise qualifies as a dealer operator.

218.0134(4)(c)3. 3. The affected grantor agrees to pay the reasonable expenses, including reasonable attorney fees that do not exceed the usual, customary and reasonable fees charged for similar work done for other clients, incurred by the proposed new owner or transferee before the grantor’s exercise of its right of first refusal in negotiating and implementing the contract for the proposed change of ownership or transfer of dealership assets. Notwithstanding this subdivision, no payment of expenses and attorney fees shall be required if the dealer has not submitted or caused to be submitted an accounting of those expenses within 7 days after the dealer’s receipt of the affected grantor’s written request for an accounting.

218.0134(4)(d) (d) An action, if a proposed new owner or transferee does not agree to comply with the agreement between the affected grantor and dealer or with a new agreement containing substantially the same terms.

218.0134 History History: 1999 a. 31 ss. 235 to 246; 2001 a. 31; 2005 a. 256; 2007 a. 32.

218.0134 Annotation The application of s. 218.01 (3x) [now this section] to a contract executed prior to the enactment of s. 218.01 (3x) [now this section] did not violate the contracts clause of the U.S. Constitution. Chrysler Corp. v. Kolosso Auto Sales, Inc., 148 F.3d 892 (1998).

218.0134 Annotation Section 218.01 (3x) [now this section] provides an exclusive remedy for evaluating a manufacturer’s proposal regarding additions or changes of franchises. The immunity provided by s. 218.01 (3x) [now this section] is intended to protect against “end runs” around the administrative procedures provided and instead proceeding directly to court. Ray Hutson Chevrolet, Inc. v. General Motors Corp., 235 F.3d 348 (2000).

218.0136 218.0136 Mediation of disputes between licensees.

218.0136(1) (1) A licensee may not file a complaint or petition with the division of hearings and appeals or bring an action under s. 218.0163 (1), based on an alleged violation of ss. 218.0101 to 218.0163 by any other licensee or under s. 218.0116 (7) or (8), 218.0131 or 218.0134, unless the licensee serves a demand for mediation upon the other licensee before or contemporaneous with the filing of the complaint or petition or the bringing of the action. A demand for mediation shall be in writing and served upon the other licensee by certified mail at an address designated for that licensee in the licensor’s records. The demand for mediation shall contain a brief statement of the dispute and the relief sought by the licensee filing the demand.

218.0136(2) (2) Within 20 days after the date a demand for mediation is served, the parties shall mutually select an independent mediator and meet with that mediator for the purpose of attempting to resolve the dispute. The meeting place shall be within this state in a location selected by the mediator. The mediator may extend the date of the meeting for good cause shown by either licensee or upon the stipulation of both licensees.

218.0136(3) (3) The service of a demand for mediation under sub. (1) shall stay the time for the filing of any complaint or petition with the division of hearings and appeals or for bringing an action under s. 218.0163 (1), based on an alleged violation of ss. 218.0101 to 218.0163 by the other licensee or under s. 218.0116 (7) or (8), 218.0131 or 218.0134, until the representatives of both licensees have met with a mutually selected mediator for the purpose of attempting to resolve the dispute. If a complaint or petition is filed before the meeting, the division of hearings and appeals or the court shall enter an order suspending the proceeding or action until the meeting has occurred and may, upon the written stipulation of all parties to the proceeding or action that they wish to continue to mediate under this section, enter an order suspending the proceeding or action for as long a period as the division of hearings and appeals or court considers to be appropriate. A suspension order issued under this subsection may be revoked upon motion of any party or upon motion of the division of hearings and appeals or the court.

218.0136(4) (4) The licensor shall encourage licensees under this section to establish, maintain and administer a panel of mediators who have the character, ability and training to serve as mediators and who have knowledge of the motor vehicle industry.

218.0136 History History: 1999 a. 31 ss. 274 to 278.

218.0137 218.0137 Arbitration of disputes between licensees. A manufacturer, importer or distributor and a dealer may agree to submit a dispute arising under a franchise agreement or under ss. 218.0101 to 218.0163 to binding arbitration. Unless agreed otherwise in an agreement that complies with ss. 218.0114 (9) (b) and 218.0116 (1) (qm) 4., any arbitration proceeding shall be voluntary, initiated by serving a written demand for arbitration on the other party, and shall be conducted under the provisions of the state of Wisconsin arbitration plan administered by representatives of the licensees.

218.0137 History History: 1999 a. 31 s. 279.

218.0138 218.0138 Immunity and presumption of good faith. A mediator or arbitrator is immune from civil liability for any good faith act or omission within the scope of the mediator’s or arbitrator’s performance of his or her powers and duties under s. 218.0136 or the arbitration plan referred to in s. 218.0137. Every act or omission of a mediator or arbitrator is presumed to be a good faith act or omission. This presumption may be overcome only by clear and convincing evidence.

218.0138 History History: 1999 a. 31 s. 280.

218.0141 218.0141 Contract provisions. No contract for the sale of a motor vehicle shall contain a clause which, upon nonacceptance of the vehicle by the buyer, would subject the buyer to a penalty greater than 5 percent of the cash price of the vehicle.

218.0141 History History: 1999 a. 31 ss. 254 to 255.

218.0141 Cross-reference Cross-reference: See also ch. Trans 139, Wis. adm. code.

218.0142 218.0142 Installment sales.

218.0142(1) (1) Every retail installment sale shall be evidenced by an instrument in writing, which shall contain all the agreements of the parties and shall be signed by the buyer.

218.0142(2) (2) 

218.0142(2)(a) (a) Prior to or concurrent with any installment sale, the seller shall deliver to the buyer a written statement clearly describing all of the following:

218.0142(2)(a)1. 1. The motor vehicle sold to the buyer.

218.0142(2)(a)2. 2. The cash sale price.

218.0142(2)(a)3. 3. The cash paid down by the buyer.

218.0142(2)(a)4. 4. The amount credited the buyer for any trade-in.

218.0142(2)(a)5. 5. A description of the trade-in.

218.0142(2)(a)5m. 5m. The cost to the retail buyer of any insurance.

218.0142(2)(a)6. 6. The amount financed, which may include the cost of insurance and sales and use taxes.

218.0142(2)(a)7. 7. The amount of the finance charge.

218.0142(2)(a)8. 8. The amount of any other charge specifying its purpose.

218.0142(2)(a)9. 9. The total of payments due from the buyer.

218.0142(2)(a)10. 10. The terms of payment of the total of payments due from the buyer.

218.0142(2)(a)11. 11. The amount and date of each payment necessary to pay the total finally.

218.0142(2)(a)12. 12. A summary of any insurance coverage to be effected.

218.0142(2)(b) (b) The division of banking may determine the form of the statement required under par. (a).

218.0142(2)(c) (c) If a written order is taken from a prospective purchaser in connection with any installment sale, the written statement described in par. (a) shall be given to the purchaser prior to or concurrent with the signing of the order by the purchaser.

218.0142(3) (3) A retail installment sale made after October 31, 1984, is not subject to any maximum finance charge limit.

218.0142(4) (4) An exact copy of the installment sale contract and any note or notes given in connection with the contract shall be furnished by the seller to the buyer at the time the buyer signs the contract. The buyer’s copy of the contract shall contain the signature of the seller identical with the signature on the original contract. No contract shall be signed in blank except that a detailed description of the motor vehicle including the serial number or other identifying marks of the vehicle sold which are not available at the time of execution of the contract may be filled in before final delivery of the motor vehicle.

218.0142(5) (5) A violation of sub. (1), (2) or (3) bars recovery of any finance charge by the seller, or an assignee of the seller who, at the time of the assignment, had knowledge of the violation, in any suit upon a sales contract arising from the sale where the violation occurred.

218.0142(6) (6) 

218.0142(6)(a) (a) Prior to 30 days after acquisition of any retail installment contract from a retail seller, every finance company shall do all of the following:

218.0142(6)(a)1. 1. Mail or deliver to the retail buyer a written notice that the finance company has acquired the retail installment contract from the retail seller.

218.0142(6)(a)2. 2. Mail or cause to be mailed with the notice described in subd. 1. a statement of the particulars of the retail installment contract price required under sub. (2) to be stated by the retail seller, in accordance with the finance company’s records respecting the particulars of the retail installment contract, including the amount of the finance charge.

218.0142(6)(b) (b) Every finance company, if insurance is provided by the finance company, shall also within 30 days after acquisition of the retail installment contract send or cause to be sent to the retail buyer a policy of insurance clearly setting forth the exact nature of the insurance coverage and the amount of the premiums, each stated separately, which shall be filed with the commissioner of insurance in accordance with ch. 625. The cancellation and rewriting of any policy provided by the finance company shall comply with the requirements of s. 631.69.

218.0142(7) (7) In the event that the dealer shall finance the installment sale contract, the division of banking may permit the dealer to combine the information required by subs. (2) and (6) in one statement under rules that the division of banking may from time to time promulgate.

218.0142(8) (8) Any retail buyer of a motor vehicle under a retail installment contract who is a resident of this state at the time of purchase shall have a valid defense in any action or proceeding at law to enforce the contract by any finance company that is not licensed and which has purchased or otherwise acquired the contract if the finance company has willfully failed or refused to comply with sub. (6).

218.0142(9) (9) Any retail buyer of a motor vehicle under a retail installment contract made in this state who is a resident of this state at the time of purchase shall have a valid defense against the recovery of the principal, finance charge and other fees included in the contract in any action or proceeding at law to enforce the contract by any person who has purchased or otherwise acquired the contract if all of the following are true:

218.0142(9)(a) (a) The person who acquired the contract has failed or refused prior to the purchase or acquisition to be licensed as a sales finance company under ss. 218.0101 to 218.0163.

218.0142(9)(b) (b) The person who acquired the contract is actually engaged in business, in whole or in part as a sales finance company.

218.0142(10) (10) All transactions that constitute consumer transactions, as defined under s. 421.301 (13), are subject to chs. 421 to 427, in addition to ss. 218.0101 to 218.0163.

218.0142(11) (11) This section does not apply to a retail installment sale of a motor vehicle made on or after November 1, 1981, if the motor vehicle is to be used primarily for business or commercial purposes and not for the buyer’s personal, family or household use.