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HOUSE DOCKET, NO. 273         FILED ON: 1/13/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 102

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Garrett J. Bradley and Kathi-Anne Reinstein

_______________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An act protecting motor vehicle owners and small businesses in repairing motor vehicles.

_______________

PETITION OF:

 

Name:

District/Address:

Garrett J. Bradley

3rd Plymouth

Richard Bastien

2nd Worcester

James M. Murphy

4th Norfolk

James J. Dwyer

30th Middlesex

James M. Cantwell

4th Plymouth

Jennifer E. Benson

37th Middlesex

Bruce J. Ayers

1st Norfolk

George N. Peterson, Jr.

9th Worcester

Stephen L. DiNatale

3rd Worcester

John J. Binienda

17th Worcester

William N. Brownsberger

 

Stephen Kulik

1st Franklin

Rhonda Nyman

5th Plymouth

Sean Curran

9th Hampden

John P. Fresolo

16th Worcester

Thomas J. Calter

12th Plymouth

Dennis A. Rosa

4th Worcester

Thomas M. Stanley

9th Middlesex

Sarah K. Peake

4th Barnstable

Marc T. Lombardo

22nd Middlesex

David Paul Linsky

5th Middlesex

Elizabeth A. Poirier

14th Bristol

John H. Rogers

12th Norfolk

James R. Miceli

19th Middlesex

Ruth B. Balser

12th Middlesex

Christine E. Canavan

10th Plymouth

Carl M. Sciortino, Jr.

34th Middlesex

Geraldo Alicea

6th Worcester

Todd M. Smola

1st Hampden

Susan Williams Gifford

2nd Plymouth

Shaunna O'Connell

3rd Bristol

Sean Garballey

23rd Middlesex

Bradford Hill

4th Essex

Joyce A. Spiliotis

12th Essex

Viriato Manuel deMacedo

1st Plymouth

Ellen Story

3rd Hampshire

Patricia A. Haddad

5th Bristol

Paul McMurtry

11th Norfolk

Demetrius J. Atsalis

2nd Barnstable

Paul Adams

17th Essex

Antonio F. D. Cabral

13th Bristol

Nick Collins

4th Suffolk

Geraldine M. Creedon

11th Plymouth

Steven S. Howitt

4th Bristol

Donald F. Humason, Jr.

4th Hampden

Peter V. Kocot

1st Hampshire

Benjamin Swan

11th Hampden

Walter F. Timilty

7th Norfolk

Cleon H. Turner

1st Barnstable

Robert M. Koczera

11th Bristol

Kay Khan

11th Middlesex

Robert F. Fennell

10th Essex


HOUSE DOCKET, NO. 273        FILED ON: 1/13/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 102

By Representatives Bradley of Hingham and Reinstein of Revere, a petition (accompanied by bill, House, No. 102) of Garrett J. Bradley, Kathi-Anne Reinstein and others for legislation to ensure that independent repair facilities in the Commonwealth have access to information related to the proper and complete diagnosis, service and repair of motor vehicles.  Consumer Protection and Professional Licensure. 

 

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 228 OF 2009-2010.]


The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand Eleven

_______________

 

An act protecting motor vehicle owners and small businesses in repairing motor vehicles.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. The General Laws are hereby amended by inserting after chapter 93I the following chapter:-

              CHAPTER 93J.

              Section 1. As used in this chapter the following words shall, have the following meanings, unless the context clearly requires otherwise:—

                           

              "Authorized motor vehicle repair facility" a person or business that is associated with an authorized dealer or motor vehicle manufacturer.

                           

              “Dealer”, a business authorized by a new vehicle manufacturer to lease or sell the manufacturer’s new motor vehicles at retail, under a franchise agreement; provided, however, that the business is engaged in the diagnosis, service, maintenance or repair of motor vehicles or motor vehicle engines under the franchise agreement.

                          

              “Franchise agreement”, an oral or written arrangement for a definite or indefinite

              period in which a manufacturer or distributor grants to a dealer a license to use a trade name, service mark or related characteristic and in which there is a community of interest in the marketing of new motor vehicles or services related thereto at wholesale, retail, leasing or otherwise; provided, however, this shall include the performance or provision of a warranty or recall repair work by a dealer on behalf of a manufacturer.

                           

              “Independent motor vehicle repair facility" a person or business operating in the commonwealth that is not associated with a manufacturer's authorized dealer of motor vehicles, which is engaged in the diagnosis, service, maintenance or repair of motor vehicles or motor vehicle engines.

                           

              “Manufacturer” any person engaged in the business of manufacturing or assembling new motor vehicles.

              “Motor vehicle owner" a person who owns, leases or otherwise has the legal right to use and possess a motor vehicle or the agent of that person.

                           

              “Trade secret" a formula, pattern, device or compilation of information which is used in a business, which gives the business an opportunity to obtain an advantage over competitors who do not know or use it and which the business has taken all reasonable and proper steps to keep secret; provided, however, that a trade secret does not include matters of public knowledge or of general knowledge in an industry.

              Section 2. The manufacturer of a motor vehicle sold in the commonwealth shall make available for purchase to independent motor vehicle repair facilities and motor vehicle owners in a non-discriminatory basis and cost as compared to the terms and costs charged to an authorized dealer or authorized motor vehicle repair facility all diagnostic, service and repair information that the manufacturer makes available to its authorized dealers and authorized motor vehicle repair facilities in the same form and the same manner as it is made available to authorized dealers or an authorized motor vehicle repair facility of the motor vehicle.  The distribution of such information shall be in a form and manner that does not alter or affect the contractual relationship between the manufacturer and its authorized dealer; provided, however, that such contractual relationship shall not alter the manner and form of diagnostic service and repair information that independent repair facilities obtain through a manufacturers repair website.

              The information must include, but is not limited to, the following: (1) all diagnostic, service, training and repair information and tools related to the proper and complete diagnosis, service and repair of a motor vehicle including any diagnostic codes used to activate all controls that are required to be activated by a repair technician to diagnose, service and repair the motor vehicle; and (2) tools and software capabilities, including wireless capabilities, related to the diagnosis, service and repair of a motor vehicle.

                           

              Section 3. (a) Failure to comply with the requirements of section 2 shall be an unfair or deceptive trade act or practice under section 2 of chapter 93A.  A motor vehicle owner or an independent motor vehicle repair facility may institute a civil action for equitable relief or damages in any court of competent jurisdiction as a remedy for the violation.

               

              (b) No person may bring an action against a manufacturer under this section unless the person has first provided documentation which shall include, but not be limited to, the following requirements: (1) the person shall provide written information confirming that the person has visited the relevant manufacturer website and attempted to effect a proper repair utilizing information provided on the website, including communication with technician assistance if made available by the manufacturer; and (2) the person shall provide a written affirmation confirming that the person sought the assistance of other applicable information sources to effect the necessary repair, including, but not limited to, the assistance of the National Automotive Service Task Force, if practicable.

              Section 4. Notwithstanding any other general or special law or rule or regulation to the contrary, nothing in this chapter shall require a motor vehicle manufacturer to divulge information that is a trade secret or other such proprietary information related to the development or use of the manufacturer’s repair and diagnostic tools, equipment and parts, except pursuant to a valid contract or agreement executed by a manufacturer and the other person

              Section 5. Notwithstanding any other general or special law or rule or regulation to the contrary, nothing in this chapter shall be read, interpreted or construed to abrogate, interfere with, contradict or alter the terms of a franchise agreement and the business practices of the parties thereunder, executed and in force between a dealer and a manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by a dealer on behalf of a manufacturer under the franchise agreement; provided , however, that any provision in the franchise agreement that purports to waive, avoid, restrict or limit a manufacturer’s compliance with this chapter shall be void and unenforceable.

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