W. Va. Code R. § 142-3-5 - Minimum Requirement Of The Mechanism

5.1. Mechanism organization.

5.1.1. The mechanism shall be funded and competently staffed at a level sufficient to ensure fair and expeditious resolution of all disputes and shall not charge consumers any fee for use of the mechanism.

5.1.2. The warrantor and the sponsor of the mechanism (if other than the warrantor) shall take all steps necessary to ensure that the mechanism and its members and staff are sufficiently insulated from the warrantor and the sponsor, so that the decisions of the members and the performance of the staff are not influenced by either the warrantor or the sponsor. Necessary steps shall include, at minimum, committing funds in advance, basing personnel decisions solely on merit and not assigning conflicting warrantor or sponsor duties to mechanism staff persons.

5.1.3. The mechanism shall impose any other reasonable requirements necessary to ensure that the members and staff act fairly and expeditiously in each dispute.

5.2. Qualification of members.

5.2.1. No member deciding a dispute shall be (a) a party to the dispute or an employee or agent of a party other than for purposes of deciding disputes; or (b) a person who is or may become a party in any legal action, including, but not limited to, class actions, relating to the product or complaint in dispute or an employee or agent of such person other than for purposes of deciding disputes. For purposes of this paragraph, a person shall not be considered a "Party" solely because he or she acquires or owns an interest in a party solely for investment and the acquisition or ownership of an interest which is offered to the general public shall be prima facie evidence of its acquisition or ownership solely for investment.

5.2.2. When one (1) or two (2) members are deciding a dispute, all shall be persons having no direct involvement in the manufacture, distribution, sale or service of any motor vehicle. When three (3) or more members are deciding a dispute, at least two-thirds (2/3) shall be persons having no direct involvement in the manufacture, distribution, sale or service of any motor vehicle. "Direct Involvement" shall not include acquiring or owing an interest solely for investment and the acquisition or ownership of an interest which is offered to the general public shall be prima facie evidence of its acquisition or ownership solely for investment. Nothing contained in this section shall prevent the members from consulting with any persons knowledgeable in the technical, commercial or other area relating to motor vehicles which is the subject of the dispute.

5.2.3. Members shall be persons interested in the fair and expeditious settlement of consumer disputes.

5.3. Operation of the mechanism.

5.3.1. The mechanism shall establish written operating procedures which shall include at least those items specified in Sections 5.3.2 through 5.3.10 of these rules. Copies of the written procedures shall be made available to any person upon request.

5.3.2. Upon notification of a dispute, the mechanism shall immediately inform both the warrantor and the consumer of receipt of the dispute.

5.3.3. The mechanism shall investigate, gather and organize all information necessary for a fair and expeditious decision in each dispute. When any evidence gathered by or submitted to the mechanism raises issues relating to the number of repair attempts, the length of repair periods, the possibility of unreasonable use of the product or any other issues relevant in light of the Act (or rules thereunder), including issues relating to consequential damages or any other remedy under the Act (or rules thereunder), the mechanism shall investigate these issues. When information which will or may be used in the decision submitted by one (1) party or a consultant under Section 5.2.2 of these rules or any other source tends to contradict facts submitted by the other party, the mechanism shall clearly, accurately and completely disclose to both parties the contradictory information (and its source) and shall provide both parties an opportunity to explain or rebut the information and to submit additional materials. The mechanism shall not require any information not reasonably necessary to decide the dispute.

5.3.4. If the dispute has not been settled, the mechanism shall, as expeditiously as possible but at least within forty (40) days of notification of the dispute, except as provided in Section 5.3.5 of these rules:

(a) Render a fair decision based on the information gathered as described in Section 5.3.3 of these rules, and on any information submitted at an oral presentation which conforms to the requirements of Section 5.3.6 of these rules (a decision shall include any remedies appropriate under the circumstances, including repair, replacement, refund, reimbursement for expenses, compensation for damages and any other remedies available under the written warranty or the Act (or rules thereunder); and a decision shall state a specified reasonable time for performance);

(b) Disclose to the warrantor its decision and the reasons therefor;

(c) If the decision would require action on the part of the warrantor, determine whether and to what extent warrantor will abide by its decision; and

(d) Disclose to the consumer its decision, the reasons therefor, warrantor's intended actions (if the decision would require action on the part of the warrantor) and the information described in Section 5.3.7 of these rules. For purposes of this subparagraph (d), a dispute shall be deemed settled when the mechanism has ascertained from the consumer that (1) the dispute has been settled to the consumer's satisfaction; and (2) the settlement contains a specified reasonable time for performance.

The mechanism may delay the performance of its duties under Section 5.3.4 of these rules, beyond the forty (40) day time limit:

(a) Where the period of delay is due solely to failure of a consumer to provide promptly his or her name and address, make, model and vehicle identification number of the motor vehicle involved and a statement as to the nature of the defect or other complaint; or

(b) For a seven (7) day period in those cases where the consumer has made no attempt to seek redress directly from the warrantor.

5.3.6. The mechanism may allow an oral presentation by a party to a dispute (or a party's representative) only if:

(a) Both warrantor and consumer expressly agree to the presentation;

(b) Prior to agreement, the mechanism fully discloses to the consumer the following information:

(1) That the presentation by either party will take place only if both parties so agree, but that if they agree, and one (1) party fails to appear at the agreed upon time and place, the presentation by the other party may still be allowed;

(2) that the members will decide the dispute whether or not an oral presentation is made;

(3) the proposed date, time and place for the presentation; and

(4) a brief description of what will occur at the presentation, including, if applicable, parties' rights to bring witnessess and/or counsel; and

(c) Each party has the right to be present during the other party's oral presentation. Nothing contained in Section 5.3.6 of these rules, shall preclude the mechanism from allowing an oral presentation by one (1) party, if the other party fails to appear at the agreed upon time and place, as long as all of the requirements of this paragraph have been satisfied.

5.3.7. The mechanism shall inform the consumer at the time of disclosure required in Section 5.3.4 of these rules that:

(a) If he or she is dissatisfied with its decision or warrantor's intended actions, eventual performance, or legal remedies, including use of small claims court, may be pursued;

(b) The mechanism's decision is admissible in evidence as provided in Section 3.5 of these rules; and

(c) The consumer may obtain, at reasonable cost, copies of all mechanism records relating to the consumer's dispute.

5.3.8. If the warrantor has agreed to perform any obligations either as part of a settlement agreed to after notification to the mechanism of the dispute or as a result of a decision under Section 5.3.4 of these rules, the mechanism shall ascertain from the consumer within ten (10) working days of the date for performance whether performance has occurred.

5.3.9. A requirement that a consumer resort to the mechanism prior to commencement of an action under the Act shall be satisfied forty (40) days after notification to the mechanism of the dispute or when the mechanism completes all of its duties under Section 5.3.4 of these rules, whichever occurs sooner. Except that, if the mechanism delays performance of its Section 5.3.4 of these rules, duties as allowed by Section 5.3.5 of these rules, the requirement that the consumer initially resort to the mechanism shall not be satisfied until the period of delay allowed by Section 5.3.5 of these rules has ended.

5.3.10. Decisions of the mechanism shall not be legally binding on any person. However, the warrantor shall act in good faith, as provided in Section 4.7 of these rules. In any civil action arising out of a warranty obligation and relating to a matter considered by the mechanism, any decision of the mechanism shall be admissible in evidence, as provided in Section 3.5 of these rules.

5.4. Record keeping.

5.4.1. The mechanism shall maintain records on each dispute referred to it which shall include:

(a) Name, address and telephone number of the consumer;

(b) Name, address, telephone number and contact person of the warrantor;

(c) Make, model and vehicle identification numbers of the motor vehicles;

(d) The date of receipt of the dispute and the date of disclosure to the consumer of the decision;

(e) All letters or other written documents submitted by either party;

(f) All other evidence collected by the mechanism relating to the dispute, including summaries of relevant and material portions of telephone calls and meetings between the mechanism and any other person, (including consultants described in Section 5.2.2 of these rules);

(g) A summary of any relevant and material information presented by either party at an oral presentation;

(h) The decision of the members including information as to date, time and place of meeting and the identity of members voting; or information on any other resolution;

(i) A copy of the disclosure to the parties of the decision;

(j) A statement of the warrantor's intended action(s);

(k) Copies of follow-up letters (or summaries of relevant and material portions of follow-up telephone calls) to the consumer and responses thereto; and

(l) Any other documents and communications (or summaries of relevant and material portions of oral communications) relating to the dispute.

5.4.2. The mechanism shall maintain an index of each warrantor's dispute grouped under make and subgrouped under model.

5.4.3. The mechanism shall maintain an index for each warrantor as will show:

(a) All disputes in which the warrantor has promised some performance (either by settlement or in response to a mechanism decision) and has failed to comply; and

(b) All disputes in which the warrantor has refused to abide by a mechanism decision.

5.4.4. The mechanism shall maintain an index that will show all disputes delayed beyond forty (40) days.

5.4.5. The mechanism shall compile semiannually and maintain statistics which show the number and percent of disputes in each of the following categories:

(a) Resolved by staff of the mechanism and warrantor has complied;

(b) Resolved by staff of the mechanism, time for compliance has occurred and warrantor has not complied;

(c) Resolved by staff of the mechanism and time for compliance has not yet occurred;

(d) Decided by members and warrantor has complied;

(e) Decided by members, time for compliance has occurred and warrantor has not complied;

(f) Decided by members and time for compliance has not yet occurred;

(g) Decided by members adverse to the consumer;

(h) No jurisdiction;

(i) Decision delayed beyond forty (40) days under Subsection (a), Section 5.3.5 of these rules;

(j) Decision delayed beyond forty (40) days under Subsection (b), Section 5.3.5 of these rules;

(k) Decision delayed beyond forty (40) days for any other reason; and

(l) Pending decision.

5.4.6. The mechanism shall retain all records specified in Sections 5.4.1 through 5.4.6 of these rules for at least four (4) years after final disposition of the dispute.

5.5. Audits.

5.5.1. The mechanism shall have an audit conducted at least annually, to determine whether the mechanism and its implementation are in compliance with this part. All records of the mechanism required to be kept under Section 5.4 of these rules shall be available for audit.

5.5.2. Each audit provided for in Section 5.5.1 of these rules shall include at a minimum the following:

(a) Evaluation of warrantors' efforts to make consumers aware of the mechanism's existence as required in Section 4 of these rules;

(b) Review of the indices maintained pursuant to Sections 5.4.2, 5.4.3 and 5.4.4 of these rules; and

(c) Analysis of a random sample of disputes handled by the mechanism to determine the following:

(1) Adequacy of the mechanism's complaint and other forms, investigation, mediation and follow-up efforts and other aspects of complaint handling; and

(2) accuracy of the mechanism's statistical compilations under Section 5.4.5 of these rules. (For purposes of this subsection "Analysis" shall include oral or written contact with the consumers involved in each of the disputes in the random sample.)

5.5.3. A report of each audit under this section shall be submitted to the Consumer Protection Division of the Attorney General's Office and shall be made available to any person at reasonable cost. The mechanism may direct its auditor to delete names of parties to disputes and identity of motor vehicles involved from the audit report.

5.5.4. Auditors shall be selected by the mechanism. No auditor may be involved with the mechanism as a warrantor, sponsor or member, or employee or agent thereof, other than for purposes of the audit.

5.6. Openness of records and proceedings.

5.6.1. The statistical summaries specified in Section 5.4.5 of these rules shall be available to any person for inspection and copying.

5.6.2. Except as provided under Sections 5.6.1, 5.6.5 and Section 5.5.3 of these rules, all records of the mechanism may be kept confidential or made available only on such terms and conditions, or in such form, as the mechanism shall permit.

5.6.3. The policy of the mechanism with respect to records made available at the mechanism's option shall be set out in the procedures under Section 5.3.1 of these rules; the policy shall be applied uniformly to all requests for access to or copies of such records.

5.6.4. Meetings of the members to hear and decide disputes shall be open to observers on reasonable and nondiscriminatory terms. The identity of the parties and motor vehicles involved in disputes need not be disclosed at meetings.

5.6.5. Upon request, the mechanism shall provide to either party to a dispute:

(a) Access to all records relating to the dispute; and

(b) copies of any records relating to the dispute at reasonable cost.

5.6.6. The mechanism shall make available to any person upon request information relating to the qualifications of mechanism staff and members.

Notes

W. Va. Code R. § 142-3-5