481K-3 Assistive device replacement or refund. (a) If the manufacturer or its agents fail to correct a nonconformity as required by a warranty after a reasonable opportunity to repair, the manufacturer shall accept return of the assistive device from the consumer and refund the full purchase price or replace the assistive device, as follows:

(1) If the consumer requests a refund, the manufacturer shall accept return of the assistive device from the consumer and, as the case may be, either:

(A) Refund to the consumer and to a holder of a perfected security interest in the consumer's assistive device, as their interests may appear on the records kept by the bureau of conveyances, the full purchase price plus all collateral charges and incidental charges, with adjustments for any modifications that either increase or decrease the market value of the assistive device, less a reasonable allowance for use; or

(B) Refund to the assistive device lessor and to a holder of a perfected security interest in the assistive device, as their interests may appear on the records kept by the bureau of conveyances, the current value of the written lease, and refund to the consumer the amount that the consumer paid under the written lease plus all collateral charges and incidental charges, with adjustment for any modifications that either increase or decrease the market value of the assistive device, less a reasonable allowance for use;

(2) If the consumer requests an assistive device replacement, the manufacturer, within thirty days of the request, shall provide the consumer with a comparable new assistive device. Within ten days after receipt of the assistive device replacement, the consumer shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal title thereto.

(b) For purposes of subsection (a):

(1) 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 assistive device lessor's early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor's early termination savings;

(2) A "reasonable allowance for use" shall not exceed the amount obtained by multiplying the total amount the consumer paid or for which the written lease obligates the consumer to pay by a fraction, the denominator of which is one thousand eight hundred twenty-five and the numerator of which is the number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, its agent, assistive device lessor, or assistive device dealer; and

(3) It shall be presumed that a manufacturer has had a "reasonable opportunity to repair" if the manufacturer or its agents fails to repair the same nonconformity within two attempts, or the assistive device is out of service, including by reason of attempts to repair one or more nonconformities, for a cumulative total of more than thirty business days after the consumer has returned it for repair.

(c) No person shall enforce the lease against the consumer after the consumer receives a refund. [L 1997, c 282, pt of 1; am L 2008, c 19, 27]

 

Case Notes

 

An "adjustment" is included within the term "repair" inasmuch as the purpose of the "repair" is to "correct" a nonconformity; the trial court could thus find, under the circumstances of the case, that plaintiff's efforts to return for "adjustments" were a factor, among others, in determining whether plaintiff provided hearing aid dealer with a reasonable opportunity to "repair" the nonconformity. 119 H. 483, 199 P.3d 72 (2009).

Where plaintiff's testimony that plaintiff (1) returned the device four or five times prior to the May repair, (2) was without the device for about a month during the May repair, (3) came in for another "adjustment" when the device was returned from the manufacturer in late May and (4) throughout the course of these adjustments, plaintiff noticed no change in the device but continued to experience the same problems, evidence supported the conclusion that plaintiff provided dealer with a reasonable opportunity to repair. 119 H. 483, 199 P.3d 72 (2009).

Where there was substantial evidence that plaintiff's hearing aids were functioning poorly and inadequately, so much so that despite plaintiff's hearing disability, plaintiff never used the devices for a full day and determined that plaintiff was better off not using them at all, and based on plaintiff's testimony, plaintiff was only able to hear sounds that were close, at times only those that were far away, and all kinds of noises, the trial court could properly conclude that plaintiff's hearing aids were nonconforming and not fit for their ordinary purpose. 119 H. 483, 199 P.3d 72 (2009).

 

 

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