[§481K-2]  Warranties; repair. 
(a)  No assistive device shall be sold, leased, or delivered in this State to a
consumer unless accompanied by a written warranty under which the manufacturer
warrants that the assistive device is fit for the ordinary purposes for which
the device is used, and undertakes to pay the full cost of both parts and labor
necessary to repair any nonconformity.  This warranty shall require the
manufacturer directly or through its agents to repair or, at the election of
the manufacturer, reimburse the consumer for the reasonable costs of repairing
the nonconformity.  This warranty is supplementary and not in lieu of any other
express warranties or implied warranties applicable to the assistive device.



(b)  The duration of the warranty provided in
this section shall not be less than one year after first possession of the
assistive device by the consumer.  The terms of this warranty shall be tolled
for and extended by any period of time during which:



(1)  The assistive device is out of service by reason
of repair under any other warranty;



(2)  The assistive device is in the possession of the
manufacturer or its authorized agent, representative, assistive device dealer,
or assistive device lessor for the purpose of repairing the assistive device
under the terms of this warranty;



(3)  Repair services are not available to the consumer
because of war, invasion, strike, fire, flood, or other natural disaster; or



(4)  The consumer has notified the manufacturer or its
authorized agent or representative that the assistive device is inoperable, but
cannot reasonably present the assistive device to the manufacturer or its
authorized agent or representative and the manufacturer has refused to pay the
charges to transport the assistive device to the manufacturer, its authorized
agent, representative, or repair agency.



(c)  The applicable warranty period shall end
thirty days from the date of completion of any repair required by this chapter
as to the defect repaired if the warranty would otherwise have expired during
that period.



(d)  If a manufacturer fails to give the
written warranty as required by this section, the manufacturer nevertheless
shall be deemed to have given the warranty as a matter of law.



(e)  If a new assistive device does not conform
to all applicable warranties and the consumer reports the nonconformity to the
manufacturer, the assistive device lessor, or any of the manufacturer's agents,
distributors, or authorized assistive device dealers, and makes the assistive
device available for repair before the end of the warranty period, then the
manufacturer, or, at its option and expense, its agent, representative,
distributor, authorized assistive device dealer, or authorized assistive device
lessor shall make any repairs that are necessary to conform the assistive
device to the warranties, notwithstanding the fact that the repairs are made
after the expiration of the warranty.



(f)  A consumer shall make an assistive device
available for repair by presenting it to the manufacturer, its agent,
representative, authorized assistive device dealer, or authorized assistive
device lessor prior to the expiration of the warranty period and providing the
manufacturer, its agent, representative, authorized assistive device dealer, or
authorized assistive device lessor written notice of the nonconformity.  The
manufacturer or authorized person shall immediately accept return of the
assistive device when it is so presented.  The assistive device shall be deemed
out of service commencing the day it is presented, notwithstanding any failure
to accept its return on that day.



During the applicable warranty period and the
return period, the manufacturer shall pay the reasonable costs of transporting
or shipping the assistive device to the manufacturer, agent, representative,
authorized assistive device dealer, authorized assistive device lessor, or
repair agency located nearest to the consumer.



(g)  The written warranty to be provided
pursuant to this chapter shall be a full warranty as the term is described in
the Magnuson-Moss Warranty Act, 15 U.S.C. §2301, and shall be designated as
such on the face of the warranty.  Nothing in this subsection should be
construed to limit the manufacturer's obligation to comply with all
requirements set forth in this chapter. [L 1997, c 282, pt of §1]



 



 



Case Notes



 



  Hearing aid dealer was also acting as the hearing aid
manufacturer's agent in the capacity of warrantor, and therefore, in that
capacity, was governed by this chapter's requirements pertaining to a
"manufacturer".  119 H. 483, 199 P.3d 72.



  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.



  Notwithstanding seller's failure to provide buyer with the
required written warranty of fitness for ordinary purposes under subsection (a),
where buyer failed to establish that buyer suffered any damages caused by that
violation, the violation did not support the trial court's award of damages in
the case.  118 H. 285 (App.), 188 P.3d 799.



  Where neither manufacturer's warranty card nor seller's
guarantee document stated that "the manufacturer warrants that the
assistive device is fit for the ordinary purposes for which the device is
used", or words to that effect, as is required by subsection (a), trial
court did not err in finding that the warranties failed to comply with
subsection (a) and (b).  118 H. 285 (App.), 188 P.3d 799.