403 Mass. 247 | Mass. | 1988
This is an action under G. L. c. 90, § IW/2 (1986 ed.), known as the Lemon Law, and G. L. c. 93A, the Consumer Protection Act. The plaintiff seeks damages for the defendant’s failure to comply with a State-certified arbitration award. The defendant moved to dismiss the action on the ground that the plaintiff had failed to send the defendant the written demand for relief which G. L. c. 93 A, §9(3), ordinarily
The complaint makes the following allegations. On or about March 21, 1985, the plaintiff and her husband purchased a 1985 Ford Tempo automobile. On February 11, 1986, after experiencing difficulties with the automobile, the plaintiff made a written demand on the defendant pursuant to G. L. c. 93A and G. L. c. 90, § 1WA. The defendant then exercised its final repair opportunity, G. L. c. 90, § 7N
General Laws c. 90, § IW/2 (3), provides in material part that “[i]f the manufacturer, its agent or authorized dealer does not conform the motor vehicle ... by curing any nonconformity after a reasonable number of attempts, the manufacturer shall accept return of the vehicle and refund the full contract price ... or shall offer to replace the vehicle . . . .”
General Laws c. 90, § IW/z (7), provides in relevant part: “Failure to comply with any of the provisions of this section shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A. The failure of a manufacturer either to abide by the decision of a state-certified arbitration or to file a timely appeal shall entitle any prevailing consumer to an award of no less than two times the actual damages, unless said manufacturer can prove that such failure was beyond his control. For the purposes of said chapter ninety-three A, the timely delivery by a manufacturer of a refund or acceptable replacement, pursuant to a finding by state-certified arbitration, shall constitute the granting of relief upon demand.”
General Laws c. 93A, § 9 (3) (1986 ed.), provides in part: “At least thirty days prior to the filing of any such action [an action authorized by section 9 (1)], a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but
We hold that no demand letter is necessary for a consumer to collect double or triple damages upon the manufacturer’s failure to either timely abide by the arbitration order or file a timely appeal. Under G. L. c. 90, § 1WA (3), the manufacturer must either refund the purchase price or replace a defective vehicle if it does not conform the vehicle after a reasonable number of attempts. Failure to comply with this provision is an unfair or deceptive act under c. 93A. G. L. c. 90, § 1WA (7). A finding by an arbitrator that the purchase price must be refunded or the vehicle replaced serves as the statutorily designated equivalent of the c. 93A demand letter, notifying the manufacturer of its violation of c. 90, § 7N
Accordingly, we answer “yes” to the reported question, and we affirm the judge’s denial of the motion to dismiss.
So ordered.
The fact that the failure, in a timely manner, either to appeal or to abide by the arbitrator’s decision is itself an additional violation of c. 93A under c. 90, §§ IW/i (6) and (7), obviously does not aid the manufacturer. The consumer is not seeking separate, actual damages for this additional violation of c. 93A.