The purpose of the proposed rule is to implement the statutory responsibilities of the Department of Legal Affairs for the qualification of a manufacturer-sponsored mediation and arbitration program for recreation vehicles, delineate circumstances ...

 

DEPARTMENT OF LEGAL AFFAIRS

Departmental

RULE NO.: RULE TITLE:

2-41.001 RV Mediation and Arbitration Program; Qualification, Reporting, Disqualification, Manufacturer Conduct

PURPOSE AND EFFECT: The purpose of the proposed rule is to implement the statutory responsibilities of the Department of Legal Affairs for the qualification of a manufacturer-sponsored mediation and arbitration program for recreation vehicles, delineate circumstances that may result in a program not being qualified or in the disqualification of a qualified program, and implement the reporting requirements set forth in the statute for the program.

SUMMARY: The RV Mediation and Arbitration Program is a manufacturer-sponsored informal dispute resolution program to which consumers of new recreation vehicles are required to resort to obtain relief under Floridas Lemon Law, provided such program is qualified by the Department of Legal Affairs. Prior to amendment by the 2005 Legislature, the program operated on a pilot basis. The rule is proposed to implement the statutory responsibilities of the Department related to qualification of a program, including establishing requirements for disqualification of a qualified program, and to delineate instances of manufacturer conduct that may result in the disqualification of a qualified program. The program is required by statute to report certain information to the Department and the proposed rule sets forth the information to be reported and the reporting intervals.

SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Regulatory Cost was prepared.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

SPECIFIC AUTHORITY: 681.1096 FS., 681.1097 FS., 681.118 FS.

LAW IMPLEMENTED: 681.1096 FS., 681.1097 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: March 10, 2006, 10:00 a.m. – 11:00 a.m.

PLACE: Office of the Attorney General, The Leroy Collins Building, Room G19, 107 West Gaines Street, Tallahassee, Florida

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Janet L. Smith, Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-1050, [phone], email: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

2-41.001 RV Mediation and Arbitration Program; Qualification, Reporting, Disqualification, Manufacturer Conduct.

For the purpose of implementation and application of Sections 681.1096 and 681.1097, F.S., the following shall apply:

(1) An informal dispute resolution program seeking to become qualified under Section 681.1096, F.S., and if qualified, to retain such qualification, shall, at a minimum, provide or demonstrate to the department the following:

(a) At least one established office, located in the state of Florida, where a full-time program administrator and other support staff as may be necessary to carry out all program functions shall be situated, and the records of the program shall be maintained and be available to the department for review upon request.

(b) The program must be reachable by toll-free telephone number, and must provide a mailing address and facsimile number for the receipt of all claims and correspondence. The program may also offer a web site and an Email address as additional modes of communication.

(c) A copy of the proposed or executed contract between the program and sponsoring manufacturer(s) evidencing the means by which the program will be funded.

(d)1. The program shall develop and provide to the department for review all forms, publications, filing systems and databases it intends to utilize to carry out its eligibility screening, administrative/recordkeeping, mediation and arbitration functions under Sections 681.1096, .1097, F.S.

2. Program forms should be clear, understandable and designed to obtain or communicate all information necessary to a full and fair consideration of the dispute.

(e) The program shall publish its rules and procedures and shall provide such publication to consumers and manufacturers participating in the program each time a consumer claim is determined to be eligible. Such publication should be written in a manner that explains the program’s procedures in plain language so as to assist all parties in understanding and following the procedures. The publication may be made available to the general public upon request, or may be posted on a program web site.

(f) The program shall insure that the program administrator and staff have access to independent legal advice.

(g) Program employees and the independent legal advisor cannot be employed by or be a contractor for any manufacturer or its subsidiary, distributor, authorized service agent or trade association, except as provided by applicable statute.

(h) A list of all program mediators and arbitrators, including verification by the Program that each meets the certification and training requirements of Section 681.1096, F.S., and the date each commenced service in the Program. An updated list shall be provided by the Program each time a mediator or arbitrator is discontinued from or added to the Program.

(i) The program shall provide to all participating mediators and arbitrators copies of the following:

1. The rules and procedures of the Program;

2. Chapter 681, F.S. (2005), and rules promulgated thereunder by the department, and as amended;

3. The Model Standards of Conduct for Mediators issued by the American Arbitration Association, the Dispute Resolution Section of the American Bar Association and the Association for Conflict Resolution, formerly known as the Society of Professionals in Dispute Resolution;

4. The Code of Ethics for Arbitrators in Commercial Disputes published by the American Arbitration Association and the American Bar Association in 1977 and as amended.

(j) The program shall supply the department with advance notice of the dates and locations of any scheduled trainings, along with a copy of the training program and materials and a list of all attending mediators and arbitrators.

(k) The program shall provide to the department its plan for monitoring the performance of the mediators and arbitrators as required by Section 681.1096(3)(j), F.S.

(l)1. The program shall maintain a record of locations throughout the state for the holding of mediation conferences and arbitration hearings in locations reasonably convenient for consumers. The program shall insure that the arbitration hearings are conducted in locations that are normally open and accessible to the public. Mediation conferences and arbitration hearings shall not be conducted at dealerships or other locations under the direct or indirect control of the manufacturers or their authorized service agents. A consumer shall not be required to travel more than 120 miles from a point of origin within this state to attend a mediation conference or an arbitration hearing.

2. If the consumer is a resident of this state, the point of origin shall be the consumer’s Florida residence. If the consumer is not a resident of this state, the point of origin shall be the city in Florida where the recreation vehicle was purchased.

(m) The program shall provide or demonstrate to the department its plan or procedure for complying with the document gathering and dissemination requirements set forth in Section 681.1096(3)(k), F.S.

(2) In addition to the information specified in this rule chapter, the program shall report the following to the department at the intervals specified:

(a) On a weekly basis a schedule of all mediation conferences and arbitration hearings, including identification of the claims scheduled, the date each claim was filed, the dates, times and locations of the mediations and arbitrations and identification of the assigned mediators and arbitrators.

(b) On a weekly basis, the following information regarding settlements and decision awards where one or more manufacturers have agreed or been directed to reacquire a recreation vehicle:

1. The claim number and caption or style of the claim;

2. The date the claim was filed with the Program;

3. The name(s) of the consumer(s);

4. The name(s) of the manufacturer(s) which agreed to, or were determined liable to reacquire the vehicle;

5. The year, make, model and vehicle identification number (VIN) of the vehicle to be reacquired;

6. The date of compliance with the settlement or decision award.

(c) Copies of all settlements and decisions no later than 30 days after the date of such settlements and decisions.

(d) On a quarterly basis, by no later than the last day of the month following the end of each quarter, a report containing, at a minimum, the following information for each claim filed with the Program:

1. The date of filing;

2. The name(s) of the consumer(s);

3. The name(s) of each involved manufacturer;

4. Whether the claim was determined eligible, and if rejected, the reason for rejection;

5. Whether the consumer(s) was represented by an attorney;

6. Whether the manufacturer(s) was represented by an attorney, and if multiple manufacturers, which manufacturers were so represented;

7. The date of the mediation conference, if applicable, and the name of the assigned mediator;

8. The date of the arbitration hearing, if applicable, and the name of the assigned arbitrator;

9. How the claim was resolved:

a. Voluntarily withdrawn by the consumer prior to any resolution, and the reason(s) for withdrawal;

b. Settled prior to, during or after mediation (but before arbitration), the type of settlement and with which manufacturer(s);

c. Impasse at mediation and involving which manufacturer(s);

d. Resolved via an arbitration decision, the nature of the decision and any relief awarded, if applicable, as to each involved manufacturer;

e. Settled after arbitration, the type of settlement and with which manufacturer(s).

10. Whether the claim was appealed, the party or parties filing the appeal, the date the Program was notified of the appeal;

11. The date of settlement or decision compliance by the manufacturer(s);

12. Whether the consumer was required to seek enforcement of a settlement or confirmation of a decision award in court, and the outcome of any such court proceeding, if known.

(d) On an annual basis (calendar year), by no later than January 30 of the year following the year for which the report is issued, the following information for each participating manufacturer:

1. Number of claims filed;

2. Number of claims determined eligible;

3. Number of claims rejected as ineligible for mediation or arbitration;

4. Number of claims voluntarily withdrawn by consumers without resolution;

5. Number of claims in which the manufacturer agreed to expand the scope of mediation;

6. Number of claims in which the manufacturer agreed to expand the scope of arbitration;

7. Number of claims resolved via settlement and types of settlement (e.g., component repair/replacement; cash reimbursement without repurchase; extended warranty; full refund (vehicle repurchased); replacement vehicle; any combination of the foregoing):

a. Before mediation;

b. During mediation;

c. After mediation, but before arbitration;

d. After arbitration;

8. Number of claims submitted to arbitration:

a. As a result of mediation impasse;

b. As a result of failure to comply with settlement;

9. Number of claims dismissed by arbitration decision;

10. Number of arbitration awards and types of awards;

11. Number of arbitration awards for which court confirmation was filed by consumers;

12. Number of claims appealed to the circuit court.

(e) The weekly reports specified in paragraphs (a) and (b) can be combined into a single report. The program may use computer or electronic technology to transmit or make accessible to the department the information required to be reported by statute and this rule.

(3) The department may revoke the qualification of a program as to one or more participating manufacturers for conduct that includes, but is not limited to, the following:

(a) Failure to adequately fund the program as demonstrated by:

1. Failure to pay the costs charged by the program in accordance with the contract or agreement entered into between the Program and the sponsoring manufacturer(s). The program administrator shall notify the department of a manufacturer’s failure or refusal to make payment.

2. A consistent failure to pay the costs charged by the program within the time for payment specified by the program. The program administrator shall notify the department of a manufacturer’s failure to make timely payment(s).

(b) Any attempt by a manufacturer, either directly, or indirectly, to exert undue influence or pressure upon the program administrator or staff in the performance of their duties, including, but not limited to, interference in the eligibility screening process, the determination of hearing locations, the initial assignment of mediators and arbitrators, except as provided by statute.

(c) Failure to provide documents requested by the program administrator under Section 681.1096(1)(k), F.S.

(d) Any attempts to condition consent to expand the scope of a mediation conference or an arbitration hearing upon the limitation or waiver of rights a consumer may have under a manufacturer warranty, Chapter 681, F.S., or any other law.

(e) Consistent failure to be represented at mediation conferences by persons with settlement authority as required by Section 681.1097(4), F.S. For purposes of the application of Section 681.1097(4), F.S, and this rule, "settlement authority" means the manufacturer shall send a representative with full and binding authority to enter into a full and complete compromise and settlement without further consultation.

(f) Consistent failure, without good cause, to appear at mediation conferences or arbitration hearings scheduled by the program.

(g) Failure to timely comply with settlement agreements.

(h) Failure to timely comply with arbitration awards.

(5) Determinations of statutory coverage remain within the purview of the arbitrator, and failure or unwillingness of a party to consent to the mediation or arbitration of any particular alleged defect shall not preclude such determinations.

(6) The program shall provide the form by which the parties may agree to expand the scope of arbitration pursuant to Sections 681.1097(5)(c), F.S. A copy of the completed consent form shall be provided to each party and to the assigned arbitrator before the arbitration hearing. Such form shall, at a minimum, obtain the following information:

(a) The name(s) of the participating consumer(s);

(b) The name(s) of the participating manufacturer(s) and the term of each manufacturer’s express warranty applicable to the subject recreation vehicle;

(c) The program’s case or claim number;

(d) A general description by the consumer(s) of all alleged defects consented to be the subject of the arbitration, and the date each alleged defect was first reported to the manufacturer or its authorized service agent;

(e) A statement or acknowledgment by each manufacturer setting forth whether it consents to arbitration of all alleged defects described by the consumer, or if not all, specifying the alleged defects to which the manufacturer’s consent applies.

Specific Authority 681.1096, 681.1097, 681.118 FS. Law Implemented 681.1096, 681.1097 FS. History–New ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Janet L. Smith

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: L. Clayton Roberts

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 31, 2006

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 10, 2005