51-07-28. Recording devices on motor vehicles - Disclosure - Removal.
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/nd/title-51/chapter-51-07-miscellaneous-provisions/51-07-28·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. A manufacturer of a new motor vehicle sold or leased in this state which is equipped
with a recording device commonly referred to as an event data recorder shall disclose
by model year 2007 the presence, capacity, and capabilities of the event data recorder
in the owner's manual for the vehicle. A motor vehicle dealer shall include within the
purchase contract in a clear and conspicuous manner information on the possibility of
a recording device. As used in this section, an event data recorder means a feature
that is installed by the manufacturer of the vehicle and does any of the following for the
purpose of retrieving data:
a. Records the speed of the vehicle and the direction the motor vehicle is traveling.
b. Records vehicle location data.
c. Records steering performance.
d. Records brake performance, including whether brakes were applied before an
accident.
e. Records the driver's safety belt status.
f. Has the ability to transmit information concerning an accident in which the vehicle
has been involved to a central communications system when an accident occurs.
2. Data recorded on an event data recorder may not be downloaded or otherwise
retrieved by a person other than the owner of the motor vehicle at the time the data is
recorded, or through consent by the owner's agent or legal representative, except
under any of the following circumstances:
a. The data is retrieved for the purpose of improving motor vehicle safety, including
for medical research of the human body's reaction to motor vehicle accidents,
and the identity of the registered owner or driver is not disclosed in connection
with that retrieved data. The disclosure of the vehicle identification number, with
the last four digits deleted, for the purpose of improving vehicle safety, including
for medical research of the human body's reaction to motor vehicle accidents,
does not constitute the disclosure of the identity of the registered owner or driver.
A person authorized to download or otherwise retrieve data from a recording
device under this subdivision may not release that data, except to share the data
among the motor vehicle safety and medical research communities to advance
motor vehicle safety, and only if the identity of the registered owner or driver is
not disclosed.
b. The data is retrieved by a licensed motor vehicle dealer or by an automotive
technician for the purpose of diagnosing, servicing, or repairing the motor vehicle.
c. By stipulation of the parties to the proceeding or by order of the court.
3. "Owner" means a person having all the incidents of ownership, including the legal title
of a vehicle regardless of whether the person lends, rents, or creates a security
interest in the vehicle; a person entitled to the possession of a vehicle as the
purchaser under a security agreement; or the person entitled to possession of the
vehicle as lessee pursuant to a written lease agreement, if the agreement at inception
is for a period in excess of three months.
4. A person, including a service or data processor operating on behalf of the person,
authorized to download or otherwise retrieve data from an event data recorder
pursuant to subdivision a of subsection 2 may not release that data except for the
purposes of motor vehicle safety and medical communities to advance motor vehicle
safety, security, or traffic management; or to a data processor solely for the purposes
permitted by this subsection and only if the identity of the owner or driver of the vehicle
is not disclosed. 5. If a motor vehicle is equipped with a recording device that is capable of recording or
transmitting information relating to vehicle location data or concerning an accident to a
central communications system and that capability is part of a subscription service, the
fact that the information may be recorded or transmitted must be disclosed in the
terms and conditions of the subscription service. Subsection 2 does not apply to a
subscription service that meets the requirements of this subsection. 6. An insurer may not require as a condition of insurability consent of the owner for
access to data that may be stored within an event data recorder and may not use data
retrieved with the owner's consent before or after an accident for the purpose of rate
assessment.
51-07-28.1. Tracking devices on motor vehicles - Disclosure - Removal - Penalty. 1. A lender may not require a person to install or maintain a global tracking or positioning
system or device on a motor vehicle for the purpose of locating or tracking the vehicle
to repossess the vehicle in case of loan default, unless:
a. The lender includes within the financing contract, in a clear and conspicuous
manner, information on the installation or placement of the system or device;
b. The system or device is installed at no cost to the buyer; and
c. The system or device is removed within sixty days of the loan for the motor
vehicle being paid in full at:
(1)The expense of the seller or lender; and
(2)A location agreed upon by the seller or lender and buyer. 2. A lender that violates this section is subject to a fine of not more than five hundred
dollars. In the case of a second or subsequent violation of this section, the lender is
subject to a fine of not less than one thousand dollars nor more than two thousand
dollars.
51-07-29. Warranty work compensation. 1. a. A motor vehicle manufacturer or distributor shall reasonably compensate its
dealers for labor and parts provided by the dealer in connection with the following
manufacturer or distributor sponsored, issued, or required items:
(1)Predelivery preparation.
(2)Installation of accessories or components required by the manufacturer or
distributor to be installed before the sale of a vehicle to a consumer.
(3)Diagnostic work.
(4)Maintenance programs.
(5)Extended warranty.
(6)Certified preowned warranty.
(7)Service contracts.
(8)Parts exchange programs.
(9)Recall, goodwill, and warranty work performed by the dealer.
b. Reasonable compensation for labor for the services identified in subdivision a
may not be less than the average retail rate charged by the dealer as provided
under subsection 5 multiplied by the time guide used by the dealer for
nonwarranty customer-paid service repair orders. To establish a time guide, a
dealer shall provide written notice to the manufacturer or distributor with the name
of the time guide the dealer uses. The manufacturer or distributor may not require
the dealer to provide any other information to establish the time guide the dealer
uses. If no time guide exists for a warranty repair, compensation for warranty
labor must equal the dealer's average retail rate multiplied by the time spent to
complete the repair, and may not be less than the time charged to a retail
customer for the same or similar work provided. A dealer shall use time
allowances for the diagnosis and performance of work and service which are
reasonable and adequate for a qualified technician to perform the work or
services. Reasonable compensation for parts for the services identified in
subdivision a may not be less than the average retail rate customarily charged by
the dealer for these parts as provided under subsection 4. 2. A dealer shall submit a claim for reimbursement for services within ninety days from
the completion of the services identified in subdivision a of subsection 1. A motor
vehicle manufacturer or distributor shall pay a dealer on a claim made by a dealer
under this section within thirty days of the approval of the claim. The manufacturer or
distributor shall either approve or disapprove a claim within thirty days after the claim
is submitted to the manufacturer or distributor. The manufacturer or distributor may
prescribe the manner in which and the forms on which the dealer must present the
claim. A claim not specifically disapproved in writing within thirty days after the
manufacturer or distributor receives the claim must be construed to be approved and
the manufacturer or distributor shall pay the claim within thirty days. If a manufacturer
or distributor disapproves a claim in writing within thirty days, the manufacturer or
distributor shall contemporaneously provide the dealer with a detailed written
explanation of the reason the claim was disapproved. The dealer has thirty days from
the receipt of the disapproval to resubmit a corrected claim. 3. A motor vehicle manufacturer or distributor shall fully compensate its motor vehicle
dealers licensed in this state for parts and labor specified in this section. Failure to fully
compensate includes a reduction in the amount due under this section to the dealer or
imposing a separate charge, surcharge, or other imposition by which the motor vehicle
manufacturer or distributor seeks to recover the costs of complying with this section
from the dealer. 4. The retail rate customarily charged by the dealer for parts is established by the dealer
submitting to the manufacturer or distributor one hundred sequential nonwarranty
customer-paid service repair orders that contain warranty-like parts or ninety
consecutive days of nonwarranty customer-paid service repair orders that contain
warranty-like parts, whichever is less, covering repairs made no more than one
hundred eighty days before the submission and declaring the average percentage
markup. 5. The retail rate customarily charged by the dealer for labor must be established using
the same process as provided under subsection 4 and declaring the average labor
rate. The average labor rate must be determined by dividing the amount of the dealer's
total labor sales by the number of total hours that generated those sales. If a labor rate
and parts markup rate are simultaneously declared by the dealer, the dealer may use
the same repair orders to complete each calculation as provided under subsection 4. 6. In calculating the retail rate customarily charged by the dealer for parts and labor as
provided in subsections 4 and 5, the following work may not be included in the
calculation:
a. Repairs for manufacturer or distributor special events, specials, or promotional
discounts for retail customer repairs;
b. Parts sold at wholesale;
c. Parts or labor used in manufacturer or distributor sponsored programs that
restrict the pricing for repairs;
d. Routine maintenance not covered under any retail customer warranty, including
fluids, filters, and belts not provided in the course of repairs;
e. Nuts, bolts, fasteners, and similar items that do not have an individual part
number;
f. Replacement or work on tires, including wheel or tire rotations or balancing, or
replacements of brakes, including brake drums, rotors, shoes, or pads;
g. Vehicle reconditioning;
h. Alignments, unless necessary as part of a mechanical repair;
i. Batteries, other than electric vehicle or hybrid vehicle propulsion batteries;
j. Repairs of a motor vehicle owned by the dealer or an employee of the dealer;
k. Installation of accessories;
l. Repairs to or with aftermarket parts; and
m. Repairs performed on motor vehicles of a line make other than that for which the
dealer is franchised by the motor vehicle manufacturer. 7. a. The average of the parts markup rates and labor rate calculated under
subsections 4 through 6 is presumed to be fair and reasonable and must go into
effect thirty days following the manufacturer's receipt of the submission subject to
the manufacturer or distributor's ability to contest the rate as provided in this
subsection. The motor vehicle manufacturer or distributor may not issue more
than one notice to the dealer contesting any declared labor rate or parts markup,
and may not add to, expand, supplement, or otherwise modify any reason for
contesting the declared rate or parts markup. A manufacturer or distributor may
contest the material accuracy of the rate calculated under this section by
providing a written objection to the dealer within thirty days after receiving the
dealer's submission, and shall:
(1)Provide the dealer with a copy of all calculations used by the motor vehicle
manufacturer or distributor to make the determination of the dealer's labor
rate or parts markup, a written explanation of the basis for any inaccuracy
alleged by the motor vehicle manufacturer or distributor, and evidence
substantiating any written explanation.
(2)Provide a proposed adjustment of the dealer's labor rate or parts markup
based solely upon the information provided by paragraph 1.
(3)Commence paying the dealer at the proposed adjusted labor rate or parts
markup determined by the motor vehicle manufacturer or distributor as
provided in this section. This section applies to all proposed adjusted labor
rates or parts markups, even if the motor vehicle manufacturer's or
distributor's determination of the labor rate or parts markup is different from
the labor rate or parts markup provided in the dealer's submission.
b. If a motor vehicle manufacturer or distributor fails to comply with the requirements
of subdivision a within thirty days of receipt of submission, the submission is
approved.
c. If a dealer agrees with the conclusions of the motor vehicle manufacturer or
distributor and any corresponding adjustment to the labor rate or parts markup
contained within the written objection, no further action is required. The new
adjusted rate is effective thirty days after the dealer's submission is received by
the manufacturer or distributor.
d. If a motor vehicle manufacturer or distributor provides a written objection that
complies with the requirements under subdivision a, and the dealer does not
agree with the proposed adjusted labor rate or parts markup contained within the
written objection, or if the dealer disputes the motor vehicle manufacturer or
distributor complied with the provisions of subdivision a, the dealer may bring an
action in a court of competent jurisdiction. In such proceeding:
(1)The motor vehicle manufacturer or distributor has the burden of proof by a
preponderance of the evidence, and must show:
(a)The manufacturer or distributor complied with subdivision a;
(b)The dealer's submitted labor rate or parts markup was materially
inaccurate; and
(c)The manufacturer's or distributor's proposed adjustment to the
dealer's submitted labor rate or parts markup was materially accurate.
(2)If the dealer prevails in the action, the dealer's labor rate or parts markup is
retroactive to the date thirty days following the motor vehicle manufacturer's
or distributor's receipt of the submission, and the dealer shall recover all
expenses in bringing and maintaining the action, including reasonable
attorney fees. If a court finds the motor vehicle manufacturer or distributor
willfully violated this section, the dealer is entitled to recover three times the
amount of the retroactive labor rate or parts markup.
8. In establishing a rate under this section, the dealer's labor rate or parts markup must
be calculated using the method prescribed in subsections 4 though 6.
9. A dealer, manufacturer, or distributor may demand that the average parts markup or
average labor rate be calculated using the process provided under subsections 4
and 5; however, the demand for the average parts markup may not be made within
twelve months of the last parts markup declaration and the demand for the average
labor rate may not be made within twelve months of the last labor rate declaration. If a
parts markup or labor rate is demanded by the dealer or manufacturer or distributor,
the dealer shall determine the repair orders to be included in the calculation under
subsections 4 and 5. 10. a. If a motor vehicle manufacturer or distributor furnishes, or causes to be furnished,
a part to a dealer at no cost or at a reduced cost for use in performing the
services identified in subdivision a of subsection 1, the motor vehicle
manufacturer or distributor shall compensate the dealer in the same manner as
parts compensation under this section by paying the dealer for the dealer's cost
of the part, if any, plus an amount equal to the dealer's parts markup, multiplied
by the wholesale value of the part. The wholesale value of the part must be the
greater of:
(1)The amount the dealer paid for the part or a substantially identical part if
already owned by the dealer;
(2)The cost of the part shown in a current, or prior, motor vehicle
manufacturer's, distributor's, or furnishing party's established price schedule;
and
(3)The cost of a substantially identical part shown in a current, or prior, motor
vehicle manufacturer's, distributor's, or furnishing party's established price
schedule.
b. A motor vehicle manufacturer or distributor may not establish or implement a
special part number for any part used in the services identified in subdivision a of
subsection 1 if it results in lower compensation to the dealer than as calculated
under this section. 11. A motor vehicle manufacturer or distributor may not:
a. Require or influence or attempt to influence a dealer to implement or change the
prices for which it sells parts or labor in retail repairs.
b. Implement or continue a policy, procedure, or program to any of its dealers in this
state for compensation under this section which is inconsistent with this section
unless otherwise agreed by the dealer and the manufacturer or distributor.
c. Take, or threaten to take, adverse action against a dealer that seeks to obtain
compensation under this section, including:
(1)Creating or implementing an obstacle or process that is inconsistent with the
motor vehicle manufacturer's obligations to the dealer under this chapter;
(2)Acting in bad faith; or
(3)Hindering, delaying, or rejecting the proper and timely payment of
compensation due to a dealer under this section, provided nothing in this
paragraph may restrict or impair audits or chargebacks conducted in
accordance with section 51-07-02.4. 12. This section applies to all manufacturers and distributors as defined by section
51-07-00.1, and any other person that supplies a component or part installed on a new
motor vehicle for which the warranty of the component or part is warrantied by another
person that is not the manufacturer.
51-07-30. Customer contract clauses - Billing examples - Enforcement - Penalty. 1. As used in this section:
a. "Customer" means a person that borrows, buys, leases, or obtains services or
property under a service contract. The term does not include a government entity.
b. "Service contract" means a written agreement between a customer and a party
acting in the usual course of business in which a customer borrows, buys, leases,
or obtains personal property, real property, or services for valuable consideration.
c. "Terms and conditions" means general and special arrangements, provisions,
requirements, rules, specifications, and standards that form an integral part of an
agreement or contract. 2. If a service contract contains terms and conditions clauses, the service contract must
be accepted by the customer for the service contract to be enforceable. 3. If a service contract contains a liquidated damages clause, the clause must provide
specific examples of how any fees or charges will be calculated. 4. The attorney general may enforce this section. The attorney general, in enforcing this
section, has the powers provided in chapter 51-15 and may seek the remedies in
chapter 51-15. Each act in violation of this section constitutes a separate violation of
chapter 51-15. The remedies, duties, prohibitions, and penalties of this section are not
exclusive and are in addition to all other causes of action, remedies, and penalties in
chapter 51-15, or otherwise provided by law.
51-07-31. Parts, equipment, and accessory dealers reimbursed for warranty repair. 1. As used in this section:
a. "Commercial distributor" means any person that offers for sale, sells, or
distributes to a dealer parts for any new commercial motor vehicle, truck, or
semitrailer, or vehicular implements, commercial equipment, or accessories, or
attachment units, designed and used primarily for transporting commodities,
merchandise, or commercial cargo.
b. "Commercial equipment dealer" means a person that engages in the business of:
(1)Selling, at retail, parts for any new or used commercial motor vehicle, truck,
or semitrailer, or vehicular implements, commercial equipment, or
accessories, or attachment units, designed and used primarily for
transporting commodities, merchandise, or commercial cargo; or
(2)Repairing new or used commercial motor vehicle, truck, or semitrailer parts,
or vehicular implements, commercial equipment or, accessories, or
attachment units, designed and used primarily for transporting commodities,
merchandise, or commercial cargo.
c. "Commercial manufacturer" means any person engaged in the business of
manufacturing or assembling parts for any new commercial motor vehicle, truck,
or semitrailer, or vehicular implements, commercial equipment, or accessories, or
attachment units, designed and used primarily for transporting commodities,
merchandise, or commercial cargo.
d. "Parts" includes essential and nonessential commercial motor vehicle, truck, or
semitrailer components. 2. A commercial manufacturer shall include reasonable compensation for diagnostic
work, as well as repair service, parts, and labor, in warranty work compensation. In
addition, a commercial manufacturer shall provide adequate time allowances for
diagnosis and performance of warranty work and service for the work performed. The
hourly labor rate paid by a commercial manufacturer to the commercial equipment
dealer for warranty services may not be less than the average rate charged by the
commercial equipment dealer for like service to nonwarranty customers for
nonwarranty service. A commercial manufacturer may not reimburse a commercial
equipment dealer for parts used in the performance of warranty repair at a lower rate
than the average retail rate customarily charged by the commercial equipment dealer
for these parts as provided under subsection 5. 3. A commercial manufacturer shall pay a commercial equipment dealer on a claim made
by a commercial equipment dealer under this section within thirty days of the approval
of the claim. The commercial manufacturer either shall approve or disapprove a claim
within thirty days after the claim is submitted to the commercial manufacturer. The
commercial manufacturer may prescribe the manner in which and the forms on which
the commercial equipment dealer must present the claim. A claim not specifically
disapproved in writing within thirty days after the commercial manufacturer receives
the claim must be construed to be approved and the manufacturer shall pay the claim
within thirty days.
4. A commercial manufacturer, commercial distributor, or commercial distributor branch
shall compensate fully its commercial equipment dealers licensed in this state for
warranty parts, work, and service specified in this section. Failure to fully compensate
includes a reduction in the amount due to the commercial equipment dealer or
imposing a separate charge, surcharge, or other imposition by which the commercial
manufacturer seeks to recover the costs of complying with this section from the
commercial equipment dealer.
5. The retail rate customarily charged by the commercial equipment dealer for parts is
established by the commercial equipment dealer submitting to the commercial
manufacturer or commercial distributor one hundred sequential nonwarranty customer-
paid service repair orders that contain warranty-like parts or ninety consecutive days of
nonwarranty customer-paid service repair orders that contain warranty-like parts,
whichever is less, covering repairs made no more than one hundred eighty days
before the submission and declaring the average percentage markup.
6. The retail rate customarily charged by the commercial equipment dealer for labor must
be established using the same process as provided under subsection 5 and declaring
the average labor rate. The average labor rate must be determined by dividing the
amount of the dealer's total labor sales by the number of total hours that generated
those sales. If a labor rate and parts markup rate are simultaneously declared by the
commercial equipment dealer, the commercial equipment dealer may use the same
repair orders to complete each calculation as provided under subsection 5.
7. In calculating the retail rate customarily charged by the commercial equipment dealer
for parts and labor, the following work may not be included in the calculation:
a. Repairs for commercial manufacturer or commercial distributor special events,
specials, or promotional discounts for retail customer repairs;
b. Parts sold at wholesale; and
c. Nuts, bolts, fasteners, and similar items that do not have an individual part
number.
8. The average of the parts markup rates and labor rate is presumed to be fair and
reasonable and must become effective thirty days following the commercial
manufacturer's approval. Not later than thirty days after submission, a commercial
manufacturer or commercial distributor may rebut the presumption by reasonably
substantiating that a rate is unreasonable in light of the practices of all other
commercial equipment dealers in an economically similar area of the state offering the
commercial equipment dealer's declaration of the same part, or vehicular implement,
equipment, accessory, or attachment unit. If the average parts markup rate or average
labor rate, or both are rebutted, the commercial manufacturer or commercial distributor
shall propose an adjustment of the average percentage markup based on that rebuttal
not later than thirty days after submission.
9. Each commercial manufacturer, in establishing a schedule of compensation for
warranty work, shall rely on the commercial equipment dealer's written schedule of
hourly labor rates and parts and may not obligate any commercial equipment dealer to
engage in unduly burdensome or time-consuming documentation of rates or parts,
including obligating commercial equipment dealers to engage in transaction-
by-transaction or part-by-part calculations. 10. A commercial dealer or commercial manufacturer may demand the average parts
markup or average labor rate be calculated using the process provided under
subsections 5 and 6; however, the demand for the average parts markup may not be
made within twelve months of the last parts markup declaration and the demand for
the average labor rate may not be made within twelve months of the last labor rate
declaration. If a parts markup or labor rate is demanded by the commercial equipment
dealer or commercial manufacturer, the commercial equipment dealer shall determine
the repair orders to be included in the calculation under subsections 5 and 6.