Johnnie E. Brown, EsquirePullin, Fowler, Flanagan, Brown & Poe, PLLC

901 Quarrier StreetCharleston, WV 25301

(304) 344-0100jbrown@pffwv.com

June 18, 2019

Selling As-Is in West Virginia

Senate Bill 543 passed. Effective July 1, 2019.

W. Va. Code §46A-6-107(a) was created.

What Motor Vehicle Can Be Sold “As-Is”?

1. Vehicle inoperable and total loss, or

2. Vehicle is custom built or modified for show purposes or racing, or

3. Sold for less than $4,000.00, or

4. Driven more than 100,000 miles, or

5. Seven years of age or older.

As long as you can meet one of these requirements, the used vehicle

may be sold “as-is.”

These vehicles must have an “As-Is” Buyers’Guide.

Required Disclosure(Prior to Sale)

Requires that a disclaimer shall appear on the “front page of the

contract of sale.” W. Va. Code 46A-6-107a(d)(1)

The required disclaimer is defined in the statute.

Must be “12-point boldfaced type” and the heading, “16-point

extra boldfaced type.” It must also be boxed.

Recommend lines for the buyer and co-buyer to initialize

within the box. W. Va. Code 46A-6-107a(d)(3) and (4).

Required Disclosure(Prior to Sale)

The disclaimer must state the following:

THIS VEHICLE IS SOLD “AS IS”. THIS MEANS THAT YOU WILL LOSE

YOUR IMPLIED WARRANTIES. YOU WILL HAVE TO PAY FOR ANY

REPAIRS NEEDED AFTER THE SALE. IF WE HAVE MADE ANY

PROMISES TO YOU, THE LAW SAYS WE MUST KEEP OUR PROMISES

EVEN IF WE SELL “AS IS”. TO PROTECT YOURSELF, ASK US TO PUT

ALL PROMISES IN WRITING. YOU MAY HAVE THE RIGHT TO

CANCEL THIS SALE BY THE END OF THE DEALER’S THIRD

BUSINESS DAY FOLLOWING THE SALE IF THE VEHICLE HAS

SIGNIFICANT MECHANICAL ISSUE THAT CAN BE REASONABLY

EXPECTED TO HAVE EXISTED AT THE TIME OF THE SALE.

Required Disclosure(Prior to Sale)

Buyer and co-Buyer acknowledge that they have received aVehicle History Report.

Disclose “Defects or Malfunctions Disclosed by PriorOwner or Discovered on Inspection” W. Va. Code 46A-6-107a(d)(6)

-Buyer is informed of the three business day right to cancelif based upon significant mechanical issue or issues whichexisted at the time of sale for an “as-is” sale based uponprice, mileage or age only. W. Va. Code 46A-6-107a(b).

Recommended Forms

Agreement to MediateAdvantages:

Less expensive than arbitration.

Avoids lawsuits without notice.

Mediations are successful.

Helps Maintain or Rebuild Customer Relationshipsbetter.

Know Your EnemyTime and Money invested in conflict are your true enemy.

Costs and Compensation of the U.S. Tort System, U.S. Chamber-Institute for Legal Reform (2018)

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Cost of Defense InformationAverage attorney’s fees to defend consumer lemon lawsuit: $30-40K

Average attorney’s fees to defend employment lawsuit: $50-75k

Consumer Law Center guided rate discrimination defense attorney’s fees through dispositive motions: $75k

Expert witness fees: Most charge $150 to $250 per hour.

https://robertkaplinsky.com/work/drug-money/

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Fortune 200 Litigation Costs 2000-2008

Litigation Cost Survey of Major Companies, Northwestern Law Searle Civil Justice Institute (2010)

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Lessons Learned

1) Companies that get out of litigation early never spend much money on attorneys’ fees or large judgements.

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2) The longer the case goes on, the harder it will be to settle due to growing attorney’s fees and depreciation.

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Lessons Learned

Mandatory Pre-Suit Mediation

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Pre-Suit Inspection and Mediation Requirement.

“I agree that before I file suit regarding the sale, service, use or condition of this vehicle, I will engage in a vehicle inspection followed by pre-suit mediation in the county where the Dealer is located.”

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Pre-Suit Inspection and Mediation Requirement.

At any time that a claim is made, gather as much information as possible to fully investigate the customer’s concerns:

* Ask for a complete list of all issues.

* Ask for documents and photos supporting the demand.

* Ask the customer if he/she has prepared a timeline or summary.

* Ask for records from any other repair facility.

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Set Up the Inspection and Pre-Suit Mediation

*Point out to the Plaintiff’s attorney that the contract requires a pre-suit inspection and mediation before any claim can go forward and propose a list of mediators.

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Pre-Suit Inspection and Mediation Requirement.

* Consider using an expert at this preliminary inspection otherwise reserve the right to conduct a full inspection with an expert if settlement is unsuccessful.

* Attempt to have the Plaintiff compile a full list of complaints prior to the inspection.

*Take a full set of pictures/video to record the condition of the vehicle at the time of inspection.

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Mediation

* Mediate the claim before the fees grow and work with your manufacturer (or dealer) to settle the claim.

* Don’t assume you know what the customer wants, ask him or her directly.

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Jury Trial Waiver

WAIVER OF JURY TRIAL. I AGREE THAT ANY AND ALL LEGAL ACTIONS OF ANY KIND RELATING TO THE SALE, SERVICE, USE OR CONDITION OF THE PRODUCT WILL BE DECIDED BY A JUDGE, RATHER THAN A JURY.

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Example: Jury Waiver

Don’t Use:

“I waive the right to a jury trial for any claim between you and me.”

Instead Use:

“I waive the right to a jury trial for any claim involving the sale, service or repair of the Vehicle, including any claim against a manufacturer.”

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Limit Remedies

Limit remedies as allowed by state law. Revocation, Rescission, Consequential/ Incidental Damages/Loss of Use.

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Venue

“Venue for any claim of any kind relating to the sale, service, use or condition of this vehicle shall be exclusively brought in courts situated within the county where Dealer is located.”

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