§ 357-D:1 Intent. - The legislature finds
and declares that manufacturers, distributors and importers of new motor
vehicles should be obligated to provide speedy and less costly
resolution of automobile warranty problems. Manufacturers should be
required to provide in as expeditious a manner as possible a refund of
the consumer's purchase price, payments to a lessor and lessee, or a
replacement vehicle that is acceptable to the consumer whenever the
manufacturer is unable to make the vehicle conform with its applicable
warranty. New motor vehicle dealers and used motor vehicle dealers
cannot be sued under this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:2 Definitions. - In this chapter:
I. "Board" means the New Hampshire new motor
vehicle arbitration board.
II. "Business day" means any day during which
the service departments of authorized dealers of the manufacturer of the
motor vehicle are normally open for business.
III. "Consumer" means the purchaser, other
than for purposes of resale of a new motor vehicle; the lessee of a new
motor vehicle, other than for the purpose of sublease; any person to
whom such motor vehicle is transferred during the duration of an express
warranty applicable to the motor vehicle; or any other person entitled
by the terms of the warranty to enforce the obligations of the warranty.
"Consumer" shall not include any governmental entity.
IV. "Distributor" means any person who sells
or distributes new or used motor vehicles to motor vehicle dealers or
who maintains distributor representatives within this state.
V. "Early termination costs" means expenses
and obligations incurred by a motor vehicle lessee as a result of an
early termination of a written lease agreement and surrender of a motor
vehicle to a manufacturer, including penalties for prepayment of finance
VI. "Factory branch" means any branch office
maintained by a manufacturer for the purpose of selling, leasing, or
offering for sale or lease, vehicles to a distributor or new motor
vehicle dealer or for directing or supervising, in whole or in part,
factory distributor representatives.
VII. "Lease" or "leased" means a
written agreement with a lessee which shall be for the use of a motor
vehicle for consideration for a term of 2 or more years.
VIII. "Lessee" means any consumer who leases a
motor vehicle pursuant to a written lease agreement for a term of 2 or
IX. "Manufacturer" means any person, resident
or nonresident, who manufactures or assembles new motor vehicles, or
imports for distribution through distributors of motor vehicles or any
partnership, firm, association, joint venture, corporation or trust,
resident or nonresident, which is controlled by a manufacturer. The term
"manufacturer" includes distributors and factory branches.
X. "Motor vehicle" means:
(a) A motor vehicle, as defined in RSA 259:60, of the
private passenger or station wagon type with a gross weight not
exceeding 9,000 pounds that is purchased or leased by a consumer; or
(b) Any other 4-wheel motor vehicle with a gross weight
not exceeding 9,000 pounds, except tractors, off highway recreational
vehicles, and mopeds; or
XI. "Motor vehicle dealer" means any person
engaged in the business of selling, offering to sell, leasing,
soliciting or advertising the sale of new or used motor vehicles or
possessing motor vehicles for the purpose of resale either on his own
account or on behalf of another, either as his primary business or
incidental thereto. However, "motor vehicle dealer" shall not
(a) Receivers, trustees, administrators, executors,
guardians, or other persons appointed by or acting under judgment,
decree or order of any court; or
(b) Public officers while performing their duties as
XII. "Motor vehicle lessor" means a person who
holds title to a motor vehicle leased to a lessee under written lease
agreement for a term of 2 or more years, or who holds the lessor's
rights under such an agreement.
XIII. "New motor vehicle" means a passenger
motor vehicle which is still under the manufacturer's express warranty.
XIV. "Nonconformity" means a defect or
condition that substantially impairs the use, value or safety of a motor
vehicle, but does not include a defect or condition that results from an
accident, abuse, neglect, modification, or alteration of the motor
vehicle by persons other than the manufacturer or its authorized service
XV. "Warranty" includes express warranties as
defined in the Uniform Commercial Code, RSA 382-A, plus any written
warranty of the manufacturer.
Source. 1991, 222:1. 1994, 220:1, 2, eff. Jan. 1, 1995.
§ 357-D:3 Enforcement of Warranties. - I.
Every new motor vehicle sold in this state shall conform to all
II. It shall be the manufacturer's obligation under this
chapter to insure that all new motor vehicles sold or leased in this
state conform with the manufacturer's express warranties. The
manufacturer may delegate responsibility to its agents or authorized
dealers provided, however, in the event the manufacturer delegates its
responsibility under this chapter to its agents or authorized dealers,
it shall compensate the dealer for all work performed by the dealer in
satisfaction of the manufacturer's responsibility under this chapter.
III. If a new motor vehicle does not conform to all
applicable express warranties and the consumer reports the nonconformity
to the manufacturer, its agent or authorized dealer during the term of
the warranty, the manufacturer shall cause whatever repairs are
necessary to conform the vehicle to the warranties, notwithstanding the
fact that the repairs are made after the expiration of a warranty term.
IV. A manufacturer, its agent or authorized dealer shall
not refuse to provide a consumer with a written repair order and shall
provide to the consumer, each time the consumer's vehicle is brought in
for examination or repair of a defect, a written summary of the
complaint and a fully itemized statement indicating all work performed
on the vehicle including, but not limited to, examination of the
vehicle, parts, and labor.
V. If, after a reasonable number of attempts, the
manufacturer, its agent or authorized dealer or its delegate is unable
to conform the motor vehicle to any express warranty by repairing or
correcting any defect or condition covered by the warranty which
substantially impairs the use, market value, or safety of the motor
vehicle to the consumer, the manufacturer shall, at the option of the
consumer within 30 days of the effective date of the board's order,
replace the motor vehicle with a new motor vehicle from the same
manufacturer, if available, of comparable worth to the same make and
model with all options and accessories with appropriate adjustments
being allowed for any model year differences or shall accept return of
the vehicle from the consumer and refund to the consumer the full
purchase price or to the lessee, in the case of leased vehicles, as
provided in paragraph IX. In those instances in which a refund is
tendered, the manufacturer shall refund to the consumer the full
purchase price as indicated in the purchase contract and all credits and
allowances for any trade-in or down payment, license fees, finance
charges, credit charges, registration fees, and any similar charges and
incidental and consequential damages or, in the case of leased vehicles,
as provided in paragraph IX. Refunds shall be made to the consumer and
lienholder, if any, as their interests may appear, or to the motor
vehicle lessor and lessee as provided in paragraph IX. A reasonable
allowance for use shall be that amount directly attributable to use by
the consumer prior to the first repair attempt and shall be calculated
by multiplying the full purchase price of the vehicle by a fraction
having as its denominator 100,000, or for a motorcycle with an engine
size of 250 cubic centimeters or smaller 20,000, or for a motorcycle
with an engine size greater than 250 cubic centimeters 40,000, and
having as its numerator the number of miles that the vehicle traveled
prior to the first attempt at repairing the vehicle.
VI. It shall be an affirmative defense to any claim
under this chapter that an alleged nonconformity does not substantially
impair the use, market value, or safety or that the nonconformity is the
result of abuse, neglect, or unauthorized modifications or alterations
of a motor vehicle by a consumer.
VII. It shall be presumed that a reasonable number of
attempts have been undertaken to conform a motor vehicle to the
applicable warranties if:
(a) The same nonconformity as identified in any written
examination or repair order has been subject to repair at least 3 times
by the manufacturer, its agent, or authorized dealer within the express
warranty term and the same nonconformity continues to exist; or
(b) The vehicle is out of service by reason of repair of
one or more nonconformities, defects, or conditions for a cumulative
total of 30 or more business days during the term of the express
warranty. The term of any warranty and the 30-day period shall be
extended by any period of time during which repair services were not
available to the consumer because of war, invasion, strike, fire, flood,
or other natural disaster. If an extension of time is necessitated due
to these conditions, the manufacturer shall provide for the free use of
a vehicle to the consumer whose vehicle is out of service. A vehicle
shall not be deemed out of service if it is available to the consumer
for a major part of the day.
VIII. In order for an attempt at repair to qualify for
the presumptions of this section, the attempt at repair shall be
evidenced by a written examination or repair order issued by the
manufacturer, its agent, or its authorized dealer. The presumptions of
this section shall only apply to 3 attempts at repair evidenced by
written examination or repair orders undertaken by the same agent or
authorized dealer, unless the consumer shows good cause for taking the
vehicle to a different agent or authorized dealer.
IX. In cases in which a refund is tendered by a
manufacturer for a leased motor vehicle under paragraph V, the refund
and rights of the motor vehicle lessor, lessee, and manufacturer shall
be in accordance with the following:
(a) The manufacturer shall provide to the lessee the
aggregate deposit and rental payments previously paid to the motor
vehicle lessor by the lessee, and incidental and consequential damages,
if applicable, minus a reasonable allowance for use. The aggregate
deposit shall include, but not be limited to, all cash payments and
trade-in allowances tendered by the lessee to the motor vehicle lessor
under the lease agreement. The reasonable allowance for use shall be
calculated by multiplying the aggregate deposit and rental payments made
by the lessee on the motor vehicle by a fraction having as its
denominator 100,000 or for a motorcycle 20,000, and having as its
numerator the number of miles that the vehicle traveled prior to the
first attempt to repair the vehicle.
(b) The manufacturer shall provide to the motor vehicle
lessor the aggregate of the following:
(1) The lessor's actual purchase cost, less payments
made by the lessee;
(2) The freight cost, if applicable;
(3) The cost for dealer or manufacturer-installed
accessories, if applicable;
(4) Any fee paid to another to obtain the lease;
(5) An amount equal to 5 percent of the lessor's actual
purchase cost as prescribed in subparagraph IX(b)(1). The amount in this
subparagraph shall be instead of any early termination costs.
(c) The lessee's lease agreement with the motor vehicle
lessor and all contractual obligations shall be terminated upon a
decision of the board in favor of the lessee. The lessee shall not be
liable for any further costs or charges to the manufacturer or motor
vehicle lessor under the lease agreement.
(d) The motor vehicle lessor shall release the motor
vehicle title to the manufacturer upon the payment by the manufacturer
under the provisions of this section.
(e) The board shall give notice to the motor vehicle
lessor of the lessee's filing of a request for arbitration under this
chapter and shall notify the motor vehicle lessor of the date, time and
place scheduled for a hearing before the board. The motor vehicle lessor
shall provide testimony and evidence necessary to the arbitration
proceedings. Any decision of the board shall be binding upon the motor
Source. 1991, 222:1. 1992, 282:15, eff. Jan. 1, 1993.
§ 357-D:4 Procedure to Obtain Refund or
Replacement. - I. After the third attempt at repair or correction of
the nonconformity, defect or condition, or after the vehicle is out of
service by reason of repair of one or more nonconformities, defects or
conditions for a cumulative total of 30 or more business days as
provided in this chapter, the consumer shall notify the manufacturer
along with a clear and conspicuous disclosure notice of the rights of
the consumer under this chapter at the time the new motor vehicle is
delivered, of the nonconformity, defect or condition and the consumer's
election to proceed under this chapter. The forms shall be made
available by the manufacturer to the New Hampshire new motor vehicle
arbitration board, and any other public or nonprofit agencies that shall
request them. Forms and notices shall be in a form prescribed by rule of
the department of justice and shall not include window stickers. The
consumer shall, in the notice, elect whether to use the dispute
settlement mechanism or the arbitration provisions established by the
manufacturer or to proceed under the New Hampshire new motor vehicle
arbitration board as established under this chapter. The consumer's
election of whether to proceed before the board or the manufacturer's
dispute settlement mechanism shall preclude his recourse to the method
II. A consumer shall not pursue a remedy under this
chapter if he has discontinued financing or lease payments, if the
payments have been discontinued due to the manufacturer's breach of
obligation under this chapter or due to a breach of the manufacturer's
III. A consumer who elects to proceed before the board
shall pay a filing fee of $ 50 and the manufacturer shall pay a filing
fee of $ 250. Such fees shall be retained by the department of safety
and used to defray costs associated with the work of the board,
including per diem costs of board members and any other administrative
IV. Arbitration of the consumer's complaint, either
through the manufacturer's dispute settlement mechanism or the board,
shall be held within 40 days of receipt by the manufacturer or the board
and the manufacturer of the consumer's notice electing the remedy of
arbitration unless the consumer or the manufacturer has good cause for
an extension of time, not to exceed an additional 30-day period. If the
extension of time is requested by the manufacturer, the manufacturer
shall provide free use of a vehicle to the consumer if the consumer's
vehicle is out of service. In the event the consumer elects to proceed
in accordance with the manufacturer's dispute settlement mechanism and
the arbitration of the dispute is not held within 40 days of the
manufacturer's receipt of the consumer's notice and the manufacturer is
not able to establish good cause for the delay, the consumer shall be
entitled to receive the relief requested under this chapter.
V. Within the 40-day period set forth in paragraph IV,
the manufacturer shall have one final opportunity to correct and repair
the defect which the consumer claims entitles him to a refund or
replacement vehicle. If the consumer is satisfied with the corrective
work done by the manufacturer or his delegate, the arbitration
proceedings shall be terminated without prejudice to the consumer's
right to request that arbitration be recommended as provided in RSA
357-D:11, I(b) if the repair proves unsatisfactory.
VI. The manufacturer shall refund the reasonable
allowance provided for in RSA 357-D:3, V or IX, or make the replacement
required by the board within 30 days of a decision of the board or
within 15 days of final adjudication.
Source. 1991, 222:1. 1994, 220:3, eff. Jan. 1, 1995.
§ 357-D:5 New Motor Vehicle Arbitration Board
Established; Administrative Attachment; Rulemaking; Decisions. - I.
There is created a New Hampshire new motor vehicle arbitration board
consisting of 5 members and 3 alternate members to be appointed by the
governor and council. Terms of members shall be for 3 years. Board
members may be appointed for no more than 2 terms. One member and one
alternate of the board shall be new car dealers in New Hampshire, one
member and one alternate shall be persons knowledgeable in automobile
mechanics, and 3 members and one alternate shall be persons who
represent consumers and have no direct involvement in the design,
manufacture, distributions, sales or service of motor vehicles or their
parts. Three members of the board shall constitute a quorum. Members
shall be paid $50 per diem plus mileage.
II. The board shall be administratively attached to the
department of safety under RSA 21-G:10.
III. The board shall adopt rules, pursuant to RSA 541-A,
to implement the provisions of this chapter.
IV. The board shall hold a hearing within 40 days of
receipt of a complaint, unless an extension of time has been granted by
the board under RSA 357-D:4, IV, and shall render a decision within 30
days of the conclusion of a hearing. The board shall have the authority
to issue only damages as are provided by this chapter.
Source. 1991, 222:1. 1994, 220:4, 5, eff. Jan. 1, 1995.
§ 357-D:6 Appeal From Board's Decision. - I.
The decision of the board shall be final and shall not be modified or
vacated unless, on appeal to the superior court, a party to the
arbitration proceeding proves, by clear and convincing evidence, that:
(a) The award was procured by corruption, fraud or other
(b) There was evident partiality by the board or
corruption or misconduct by the board prejudicing the rights of any
(c) The board exceeded its powers.
(d) The board refused to postpone a hearing after being
shown sufficient cause to do so, refused to hear evidence material to
the controversy, or otherwise conducted the hearing contrary to the
rules adopted by the board so as to prejudice substantially the rights
of a party.
II. A party to the arbitration proceeding shall not
pursue an appeal until a final decision has been rendered by the board.
Any appeal shall be filed with the superior court within 30 days of the
date of the written board decision.
Source. 1991, 222:1. 1994, 220:6, eff. Jan. 1, 1995.
§ 357-D:7 Unfair and Deceptive Acts and
Practices. - Failure of the manufacturer or distributor to comply
with a decision of the board shall constitute an unfair or deceptive act
or practice under RSA 358-A:2.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:8 Dealer's Liability. - Nothing in
this chapter imposes any liability on a franchised motor vehicle dealer
or creates a cause of action by a consumer against a dealer, except for
written express warranties made by the dealer apart from the
manufacturer's warranties. A dealer shall not be made a party defendant
in any action involving or relating to this chapter, except as provided
in this section. The manufacturer shall not charge back or require
reimbursement by the dealer for any costs, including, but not limited
to, any refunds or vehicle replacements, incurred by the manufacturer
arising from this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:9 Notification to Consumers;
Rulemaking by Department of Justice. - Beginning with the model year
following July 1, 1992, the manufacturer of every motor vehicle sold in
this state shall provide a clear and conspicuous written notice of the
consumer's rights under this chapter as provided under RSA 357-D:4 at
the time of the delivery of every such new motor vehicle in this state.
The manufacturer shall provide the consumer with a self-addressed notice
in a form developed in accordance with rules adopted by the department
of justice under RSA 541-A and sufficient to notify the manufacturer of
the consumer's election to proceed under this chapter. The manufacturer
shall not delegate this responsibility to its authorized dealers. The
manufacturer of every new motor vehicle sold in this state shall also
provide a clear and conspicuous notice that informs consumers of their
rights under this chapter.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:10 Costs and Attorney's Fees. - In
any action by a consumer against the manufacturer or distributor of a
motor vehicle based upon the alleged breach of an express warranty made
in connection with the sale or lease of such motor vehicle, the court,
in its discretion, may award to the plaintiff costs and reasonable
attorney's fees. If the court determines that the action was brought
with no substantial justification, it may award costs and reasonable
attorney's fees to the defendant.
Source. 1991, 222:1, eff. Jan. 1, 1992.
§ 357-D:11 Limitations on Actions. - I.
Any proceeding initiated under the provisions of this chapter shall be
commenced within one year following the later of:
(a) The expiration of the express warranty term; or
(b) The manufacturer's final repair attempt of the
nonconformity, as provided in RSA 357-D:4, V which gave rise to the
consumer's request that the vehicle be replaced or the money refunded.
II. Nothing in this chapter shall in any way limit the
rights or remedies which are otherwise available to a consumer under any
other provision of law.
Source. 1994, 220:7, eff. Jan. 1, 1995.
§ 357-D:12 Sale of Defective Motor Vehicles. -
I. For purposes of this section "a serious safety defect"
means a life-threatening malfunction or nonconformity that impedes the
consumer's ability to control or operate the motor vehicle for ordinary
use or reasonable intended purposes or creates a risk of fire or
II. Any manufacturer or its agent or authorized dealer
is prohibited from reselling in New Hampshire any vehicle determined or
adjudicated by the board as having a serious safety defect.
Source. 1994, 395:1, eff. Jan. 1, 1995.