681.1097 RV Mediation and Arbitration Program; dispute eligibility and program function.
681.1097 RV Mediation and Arbitration Program; dispute eligibility and program function.
(1) Before filing a civil action on a matter subject to s. 681.104, a consumer who acquires a recreational vehicle must first submit the dispute to the program if the dispute is deemed eligible. Such consumer is not required to resort to a procedure certified pursuant to s. 681.108, notwithstanding that one of the manufacturers of the recreational vehicle has such a procedure. Such consumer is not required to resort to arbitration conducted by the board, except as provided in s. 681.1096(4) and in this section.
(2) A consumer acquiring a recreational vehicle must apply to participate in this program with respect to a claim arising during the Lemon Law rights period by filing the application in subsection (3) with the program no later than 60 days after the expiration of the Lemon Law rights period. The claim is considered filed when the application is date-stamped as received by the program.
(3) The consumer’s application for participation in the program must be on a form prescribed by the program. The program administrator shall screen all applications to participate in the program to determine eligibility.
(a) The consumer and the manufacturer shall be notified in writing by the program administrator if an application is rejected. Such notification of rejection shall include a brief explanation as to the reason for the rejection.
(b) If the program administrator rejects a dispute, the consumer may file a lawsuit to enforce the remedies provided under this chapter. In any civil action arising under this chapter and relating to the matter considered by the program, any determination made to reject a dispute is admissible in evidence.
(4) Mediation shall be mandatory for both the consumer and manufacturer, unless the dispute is settled prior to the scheduled mediation conference. The mediation conference shall be confidential and inadmissible in any subsequent adversarial proceedings. Participation shall be limited to the parties directly involved in the dispute and their attorneys, if any. All manufacturers shall be represented by persons with settlement authority. The parties may, by agreement, consent to expand the scope of a mediation conference to attempt to resolve warranty claims by the consumer which may not be covered under this chapter, if such claims were reported by the consumer to the manufacturer or its authorized service agent during the term of the manufacturer’s express warranty.
(a) Upon determination that an application is eligible, the program administrator shall notify the consumer and all involved manufacturers in writing that an eligible application has been received. Such notification shall include a statement that a mediation conference will be scheduled, shall identify the assigned mediator, and provide information regarding the program’s procedures. The program administrator shall provide all involved manufacturers with a copy of the completed application and obtain from each manufacturer a written response to the allegations contained in the application along with copies of any documents in support of such response. The written response shall be on a form and submitted in the manner prescribed by the program.
(b) The mediator shall be selected and assigned by the program administrator. The parties may factually object to a mediator based upon the mediator’s past or present relationship with a party or a party’s attorney, direct or indirect, whether financial, professional, social, or of any other kind. The program administrator shall consider any such objection, determine its validity, and notify the parties of any determination. If the objection is determined valid, the program administrator shall assign another mediator to the case.
(c) At the mediation conference, the mediator shall assist the parties’ efforts to reach a mutually acceptable settlement of their dispute; however, the mediator shall not impose any settlement upon the parties.
(d) Upon conclusion of the mediation conference, the mediator shall notify the program administrator that the case has settled or remains at an impasse.
(e) If the mediation conference ends in an impasse, it shall proceed to arbitration pursuant to subsection (5). The program administrator shall immediately notify the parties in writing that the dispute will proceed to arbitration and shall identify the assigned arbitrator.
(f) If the parties enter into a settlement at any time after the dispute has been submitted to the program, such settlement must be reduced to legible writing, signed by the consumer and all involved manufacturers, and filed with the program administrator. All settlements must contain, at a minimum, the following information:
1. Name and address of the consumer.
2. Name and address of each involved manufacturer.
3. Year, make, model, and vehicle identification number of the subject recreational vehicle.
4. Name and address of the dealership from which the recreational vehicle was acquired.
5. Date the claim was received by the program administrator.
6. Name of the mediator or arbitrator, if any.
7. A complete statement of the terms of the agreement, including, but not limited to: whether the vehicle is to be reacquired by a manufacturer and the identity of the manufacturer that will reacquire the vehicle; the amount of any moneys to be paid by the consumer or a manufacturer; the year, make, and model of any replacement motor vehicle or motor vehicle accepted by the consumer as a trade-assist; the date, time, location, and nature of any agreed-upon repair or replacement of a component part or accessory and an estimate as to the anticipated length of time for such repair or replacement; and a time certain for performance not to exceed 40 days from the date the settlement agreement is signed by the parties.
(g) If a manufacturer fails to perform within the time required in any settlement agreement, the consumer must notify the program administrator of such failure in writing within 30 days of the required performance date. Within 10 days of receipt of such notice, the program administrator shall determine whether the dispute is eligible to proceed to arbitration and shall schedule the matter for an arbitration hearing pursuant to subsection (5). If the program administrator determines the dispute is not eligible for arbitration, the dispute shall be rejected pursuant to subsection (3).
(5) Arbitration proceedings shall be open to the public on reasonable and nondiscriminatory terms.
(a) The arbitration hearing shall be conducted by a single arbitrator assigned by the program administrator. The arbitrator shall not be the same person as the mediator who conducted the prior mediation conference in the dispute. The parties may factually object to an arbitrator based on the arbitrator’s past or present relationship with a party or a party’s attorney, direct or indirect, whether financial, professional, social, or of any other kind. The program administrator shall consider any such objection, determine its validity, and notify the parties of any determination. If the objection is determined valid, the program administrator shall assign another arbitrator to the case.
(b) The arbitrator may issue subpoenas for the attendance of witnesses and for the production of records, documents, and other evidence. Subpoenas so issued shall be served and, upon application to the court by a party to the arbitration, enforced in the manner provided by law for the service and enforcement of subpoenas in civil actions. Fees for attendance as a witness shall be the same as for a witness in the circuit court.
(c) At all program arbitration proceedings, the parties may present oral and written testimony, present witnesses and evidence relevant to the dispute, cross-examine witnesses, and be represented by counsel. The technical rules of evidence as are applicable to civil court proceedings do not apply to arbitrations conducted by the program. The arbitrator shall record the arbitration hearing and shall have the power to administer oaths. The arbitrator may inspect the vehicle if requested by a party or if the arbitrator considers such inspection appropriate. The parties may, by mutual written agreement, consent to expand the scope of the arbitration hearing to permit consideration by the arbitrator of warranty claims by the consumer that may not be covered under this chapter, provided such claims were first reported by the consumer to the manufacturer or its authorized service agent during the term of the manufacturer’s express warranty.
(d) The program arbitrator may continue a hearing on his or her own motion or upon the request of a party for good cause shown. A request for continuance by the consumer constitutes a waiver of the time period set forth in s. 681.1096(3)(k) for completion of all proceedings under the program.
(e) The arbitrator shall, in rendering decisions, take into account all legal and equitable factors germane to a fair and just decision, including, but not limited to, the warranty and the provisions of this chapter.
(f) The program arbitrator shall render a decision within 10 days of the closing of the hearing. The decision shall be in legible writing on a form prescribed by the program. The program administrator shall send a copy of the decision to the consumer and each involved manufacturer by registered mail.
(g) A manufacturer shall comply with an arbitration decision within 40 days of the date the manufacturer receives the written decision. Compliance occurs on the date the consumer receives the relief specified in the arbitration award.
(h) If a manufacturer fails to comply within the time required, and no appeal has been filed, the consumer shall notify the program administrator of such failure in writing within 30 days. The program administrator shall notify the department of a manufacturer’s failure to comply. A consumer may apply to a court of competent jurisdiction in this state for entry of an order confirming the award. Such application shall be by motion filed within 40 days after the manufacturer’s failure to comply and shall be heard in the manner and upon notice provided by law or rule of court for the making and hearing of motions. Such application shall be served in the manner provided by law for the service of a civil summons. The consumer shall send a copy of the application for confirmation of the award and any order entered by the court confirming the award to the program administrator.
(i) Either party may request that the program arbitrator make a technical correction to the decision by filing a written request with the program administrator within 10 days after receipt of the written decision. Technical corrections shall be limited to computational errors, correction of a party’s name or information regarding the recreational vehicle, and typographical or spelling errors. Technical correction of a decision shall not toll the time for filing an appeal or for manufacturer compliance.
(6) Except as otherwise provided, all provisions in this section pertaining to mandatory mediation and arbitration, eligibility screening, mediation proceedings, arbitration hearings and decisions, and any appeals thereof are exempt from the provisions of chapter 120.
(7) A decision of the arbitrator is binding unless appealed by either party by filing a petition with the circuit court within the time and in the manner prescribed by s. 681.1095(10) and (12). Section 681.1095(13) and (14) apply to appeals filed under this section. If a decision of a program arbitrator in favor of a consumer is confirmed by the court, recovery by the consumer shall include the pecuniary value of the award, attorney’s fees incurred in obtaining confirmation of the award, and all costs and continuing damages in the amount of $25 per day for each day beyond the 40-day period following a manufacturer’s receipt of the arbitrator’s decision. If a court determines the manufacturer acted in bad faith in bringing the appeal or brought the appeal solely for the purpose of harassment, or in complete absence of a justiciable issue of law or fact, the court shall double, and may triple, the amount of the total award.
(8) In any civil action arising under this chapter relating to a dispute arbitrated pursuant to this section, the decision of the arbitrator is admissible in evidence.
(9) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section.
History. s. 8, ch. 97-245; s. 34, ch. 2001-196; s. 3, ch. 2002-71; s. 22, ch. 2002-235; s. 3, ch. 2005-141.