Important legal rights for Alabama’s disabled folks.
You don’t often hear me say this, but Alabama’s legislature has done a good thing for our working people. The New Assistive Device Warranty Act (Ala. Code Title 8, Chapter 39) provides important legal rights for purchasers of assistive devices
The Act applies to assistive devices for people with impaired mobility or sight. It does NOT include hearing devices and therefore, unfortunately, does not help the deaf and mute. It should go without saying, but assisted devices are tremendously important for people who have limited mobility and vision. Without them, you simply cannot go about daily life and do the work you need to do to survive. That’s why existing warranty law is insufficient to meet the needs of people who purchase these devices when they are defective. Under traditional warranty law, which is governed by the Uniform Commercial Code (Ala. Code Title 7, Article 2) and the Magnuson-Moss Warranty Act (15 U.S.C. 2301), a purchaser is required to give the seller of a defective product reasonable opportunity to cure the defect, which usually means multiple repair attempts. More importantly, the UCC specifically allows sellers to disclaim warranties and limit them to such a degree that they are basically useless. The most common warranty limitation is the exclusion of consequential and incidental damages. If sellers are allowed to slip limitation-of-damages clauses into their contracts or warranty booklets, then they can only be held liable for the price of the product when it fails, even if that product causes you a hundred times more financial harm (i.e. lost wages, substitute transportation, etc.) And if one seller is allowed to limit your rights, then every seller in the market will do so. This is an economic phenomenon I call the “race to the bottom.”
The New Assisted Device Warranty Act addresses this problem by prohibiting sellers of assistive devices from requiring a consumer to waive any rights under the Act. What rights are those? Here’s how it works:
How the Assisted Device Warranty Act Works
- You (or someone on your behalf) purchases a new “assistive device” with a purchase price of $5,000 or more.
- If it fails to perform as warranted, then you must notify the seller and the manufacturer of the problem, request a repair, AND make the device available to them for repair.
- The seller or manufacturer must make an attempt to repair the device.
- If they fail to repair it, then they must either A) send you a replacement within 30 days or B) give you a refund of the purchase price PLUS taxes and finance charges PLUS all “Collateral Costs” incurred in connection with the repair, including the cost of a substitute device. This means that if they’ve tried and failed to repair it, you can purchase another similar device and ask them to pay the costs associated with obtaining the replacement device.
- If they refuse to give you a refund or replacement, then you can take them to court. If you take them to court and win, then they can be ordered to pay up to three times your damages, plus court costs and lawyer’s fees. This last part is huge.
The fee-shifting provision (they pay your lawyer if you win) is very important in cases like this because even though many of these devices are expensive, they’re not expensive enough to make it worth hiring a lawyer unless you can recover your attorneys’ fees at the end of the case. This, added to the treble damages provision, is a powerful incentive for the makers of these devices to do the right thing.
The Big Bad Exceptions.
Unfortunately, the Legislature couldn’t resist the temptation of industry lobbyists completely, so they wrote a few exceptions into the Act that can, in some cases, keep you from enforcing your rights under this law. First, the definition of “Assisted Device” only applies to mobility aids and devices for vision-impaired, so it doesn’t include hearing aids. It also only applies to devices that “cost $5,000 or more.” This excludes a lot of motor scooters, which can be as cheap as $1500.
Second, there’s a big carveout for anything purchased from or installed by a licensed physician (the American Medical Association is a powerful industry lobby in Montgomery, as in Washington. Ala. Code 8-39-5.
Third, the seller is allowed to deduct from your rightful refund a “reasonable allowance for use.”
Even though the law contains these exceptions, it will be helpful for many disable people. If you or someone you care for has a defective wheelchair that the manufacturer won’t fix or replace, then call our office.