(A) Board organization
(1) The board 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 board.
(2) The warrantor, the sponsor of the
board (if other than the warrantor), and the board shall take all steps
necessary to ensure that the board and its arbitrators and staff are
sufficiently insulated from the warrantor and the sponsor, so that the
decisions of the arbitrators and the performance of the staff are not
influenced by either the warrantor or the sponsor. Necessary steps shall
include, at a minimum, committing funds in advance of submission of disputes,
basing personnel decisions solely on merit, and not assigning conflicting
warrantor or sponsor duties to board staff persons. The board shall collect and
maintain detailed information relating to any interest and involvement of the
arbitrators in the manufacture, distribution, sale or service of any motor
vehicle.
(3) The board shall impose any other
reasonable requirements necessary to ensure that the arbitrators and staff act
fairly and expeditiously in each dispute.
(B) Qualification of
arbitrators
(1) No arbitrator 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 pending legal action, including but not limited to class actions,
relating to the product or complaint in dispute or an employee or agent of such
persons 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.
(2) The composition of the
arbitration panel(s) shall be as follows:
(a) If a panel consists of less than
three arbitrators, all shall be persons having no direct involvement in the
manufacture, distribution, sale or service of any motor vehicle.
(b) If a panel consists of three or
more arbitrators, at least two-thirds shall be persons having no direct
involvement in the manufacture, distribution, sale or service of any motor
vehicle.
(3) "Direct involvement" shall not
include acquiring or owning 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.
(4) Notwithstanding paragraph (B)(2)
of this rule, any arbitrator selected to hear a dispute shall, immediately upon
notification of such selection, disclose to the board any investment he or she
has, in any company which is involved in the manufacture, distribution, sale or
service of any motor vehicle. If, during the pendency of any dispute, any
arbitrator acquires such an interest, he or she shall immediately disclose such
acquisition to the board. Any disclosure shall be in writing and the board
shall deliver a copy to each party. Upon receipt of such disclosure, a party
may elect to disqualify the arbitrator from hearing the dispute.
(5) Nothing contained in paragraph
(B) of this rule shall prevent the arbitrators from consulting with any neutral
persons knowledgeable in the technical, commercial or other area relating to
motor vehicles which is the subject of the dispute.
(6) Arbitrators shall be persons
interested in the fair and expeditious settlement of consumer
disputes.
(C) Operation of the
board
(1) The board shall establish written
operating procedures which shall include at least those items specified in
paragraphs (C)(2) to (C)(12) of this rule and the information required by
paragraph (F)(3) of this rule. Copies of the written procedures shall be made
available to any person upon request.
(2) Upon written notification of a
dispute, the board shall immediately inform both the warrantor and the consumer
of receipt of the dispute by a written notice which includes the following
disclosure which must be in bold face ten point type:
"OHIO LAW REQUIRES YOU TO USE A QUALIFIED ARBITRATION PROGRAM
BEFORE SUING THE MANUFACTURER OVER NEW CAR WARRANTY DISPUTES. FAILURE TO
ARBITRATE YOUR CLAIM MAY PRECLUDE YOU FROM MAINTAINING A LAWSUIT UNDER SECTION
1345.75 OF THE REVISED CODE."
(3) The board shall investigate,
gather and organize all information necessary for a fair and expeditious
decision on each issue in dispute. When information submitted by any source
tends to contradict facts submitted by any party, and the information will or
may be used in the decision, the board 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. All written documents relating
to or accounts of the transaction or services in dispute shall be signed by the
person who makes it. Nothing contained herein shall prevent or discourage the
board from attempting to settle disputes prior to a hearing. Disputes which are
settled after written notification to the board but prior to a hearing shall be
reported to the attorney general on forms to be approved by the attorney
general, which shall contain, at a minimum, the following
information:
(a) The date the complaint was
received;
(b) The relief requested by the
consumer;
(c) The nature of the settlement;
and
(d) The date the settlement was
implemented.
(4) Prior to the hearing, the board
shall provide the arbitrators with copies of the information collected under
paragraph (C)(3) of this rule and shall further provide a conspicuous statement
indicating that a neutral technician is available (if the board does not
provide one at all hearings) and whom to contact should the arbitrators deem it
necessary to have such consultation provided either prior to, or at, the
hearing.
(5) If the dispute has not been
settled, the board shall, as expeditiously as possible but at least within
forty days of notification of the dispute, except as provided in paragraph
(C)(8) of this rule:
(a) Render a fair decision signed by
all arbitrators making the decision, and conforming with paragraph (C)(6) of
this rule, based on the information gathered as described in paragraph (C)(3)
of this rule, and on any information submitted at an oral presentation which
conforms to the requirements of paragraph (C)(9) of this rule. A decision shall
include any remedies ordered by the panel, including repair, replacement,
refund, reimbursement for expenses, 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, and
the consumer, its decision, the reasons, therefor, and the information
described in paragraph (C)(7) of this rule.
For purposes of this paragraph, a dispute shall be deemed
settled when the board has ascertained from the consumer his or her acceptance
of the offer and that the settlement has been fully implemented.
(6) The board's arbitration decision
shall be disclosed to the attorney general on forms to be approved by the
attorney general, which shall contain, at a minimum, the following
information:
(a) Date the complaint was
received;
(b) Relief requested by the
consumer;
(c) Decision of the arbitrator(s) and
reasons therefor;
(d) Date of the
decision;
(e) A specific date for completion of
the transactions necessary to carry out the decision of the board;
(f) A statement that the decision is
binding upon the warrantor and not the consumer, unless the consumer elects to
accept the decision;
(g) The time within which the
consumer must respond;
(h) Determination of whether the
decision was accepted or rejected by the consumer.
(7) The board shall inform the
consumer at the time of disclosure required in paragraph (C)(5) of this rule
that:
(a) If he or she is dissatisfied with
its decision or if the warrantor, its agent, or its authorized dealer fails to
promptly fulfill the terms of the board's decision, the consumer may seek
redress by other rights and remedies, including asserting a cause of action
under section 1345.75 of the Revised Code.
(b) The consumer may obtain, at
reasonable cost, copies of all board records relating to the consumer's
dispute.
(8) The board may delay the
performance of its duties under paragraph (C)(5) of this rule beyond the
forty-day time limit:
(a) Where the period of delay is due
solely to the 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;
(b) For a seven-day period in those
cases where the consumer has made no attempt to seek redress directly from the
warrantor;
(c) For a fourteen-day period for
delays due solely to compliance with the requirement contained in paragraph
(C)(3) of this rule that the board provide the parties with an opportunity to
explain or rebut contradictory information;
(d) For a fourteen-day period for
delays due to consumer requests for hearing postponement, consumer failure to
submit adequate information which the arbitrator(s) feel(s) is needed to render
a decision, arbitrator unavailability, or acts of God.
(e) For a fourteen-day period at the
discretion of the arbitrator(s). The reason for any such discretionary delay
shall be disclosed and reported with the other information required by
paragraphs (C)(5) and (C)(6) of this rule.
(f) Where the dispute is settled but
the settlement is not fully implemented.
(9) The board must allow an oral
presentation at the request of the consumer. If the consumer elects an
in-person oral presentation, the warrantor may make its presentation in person,
by telephone conference call, or by written submission. If the consumer elects
an oral presentation by telephone conference call, the warrantor may make its
presentation by telephone conference call, or by written submission. If the
consumer does not request an oral presentation the warrantor shall make its
presentation by written submission. Upon receipt of the dispute the board shall
fully disclose to the parties the following information:
(a) That an oral presentation either
in person or by telephone conference call will take place if requested by the
consumer, but that, once requested, if one party fails to appear or give an
oral presentation at the agreed-upon time and place, the presentation by the
other party shall be allowed; and
(b) That the arbitrators will decide
the dispute based upon written presentations if an oral presentation is not
requested;
(c) That each party is permitted to
be represented by a person of his or her choice;
(d) That the date, time and place for
the presentation will be arranged to accommodate, where possible, the
geographic and time-of-day needs of the parties;
(e) A brief description of what will
occur at the presentation, including, if applicable, parties' rights to bring
witnesses and/or counsel, and to ask questions of other parties, witnesses
and/or counsel; and
(f) That each party has the right to
either be present during the other party's oral presentation or, in lieu of
attending, to submit a written presentation.
Nothing contained in paragraph (C)(9) of this rule shall
preclude the board from allowing an oral presentation by one party, if the
other party fails to appear or give an oral presentation at the agreed-upon
time and place, as long as all of the requirements of paragraph (C)(9) of this
rule have been satisfied.
(10) If the warrantor has agreed to
perform any obligations as part of a settlement agreed to after notification to
the board of the dispute or has been ordered to perform any obligations as a
result of a decision under paragraph (C)(5) of this rule, the board shall
ascertain from the consumer within ten working days of the date for performance
whether performance has occurred and the board's finding shall be noted in its
records.
(11) A requirement that a consumer
resort to the board prior to commencement of an action under the act shall be
satisfied forty days after notification to the board of the dispute or when the
board completes all of its duties under paragraph (C)(5) of this rule,
whichever occurs sooner. Except that, if the board delays performance of its
duties required by paragraph (C)(5) of this rule, as allowed by paragraph
(C)(8) of this rule, the requirements that the consumer initially resort to the
board shall not be satisfied until the period of delay allowed by paragraph
(C)(8) of this rule has ended.
(12) Decisions of the board shall be
legally binding on the warrantor, which must perform its obligations pursuant
to any such decisions if the consumer so elects.
(D) Recordkeeping
(1) The board shall maintain records
on each dispute referred to it which shall include:
(a) Name, address and telephone
number of the consumer;
(b) Name, address, and telephone
number of the contact person designated by the warrantor under paragraph (F)(1)
of rule 109:4-4-03 of the Administrative Code;
(c) Makes, models 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 board relating to the dispute, including summaries of relevant and material
portions of telephone calls and meetings between the board and any other person
(including neutral consultants described in paragraph (B)(4) or (C)(4) of this
rule);
(g) A summary of any relevant and
material information presented by either party at an oral
presentation;
(h) The decision of the arbitrators,
including information as to date, time and place of meeting and the identity of
arbitrators voting, or information on any other resolution;
(i) A copy of the disclosure to the
parties of the decision;
(j) Copies of follow-up letters (or
summaries of relevant and material portions of follow-up telephone calls) to
the consumer and responses thereto; and
(k) Any other documents and
communications (or summaries of relevant and material portions of oral
communications) relating to the dispute.
(2) The board shall maintain an index
of each warrantor's disputes grouped under make and subgrouped under
model.
(3) The board shall maintain an index
for each warrantor which will show:
(a) All disputes in which the
warrantor has agreed to perform any obligations as part of a settlement reached
after notification of the dispute or has been ordered to perform any
obligations as the result of a decision under paragraph (C)(5) of this rule and
has failed to comply; and
(b) All disputes in which the
warrantor has refused to abide by an arbitration decision.
(4) The board shall maintain an index
that will show all disputes delayed beyond forty days.
(5) The board shall compile
semiannually and, maintain and file with the attorney general a compilation of
the semiannual statistics which show the number and per cent of the total
number of warranty disputes received in each of the following categories (which
shall total one hundred per cent of the total number of warranty disputes
received):
(a) Resolved by staff of the board
without arbitration and the warrantor has complied;
(b) Resolved by staff of the board,
without arbitration, time for compliance has expired, and the warrantor has not
complied;
(c) Resolved by staff of the board
without arbitration, and time for compliance has not yet expired;
(d) Decided by arbitration and the
party required to perform has complied, specifying whether the party required
to perform is the consumer or the warrantor or both;
(e) Decided by arbitration, time for
compliance has expired, and the party required to perform has not complied,
specifying whether the party required to perform is the consumer or the
warrantor or both;
(f) Decided by arbitration and time
for compliance has not yet expired;
(g) Decided by arbitration in which
neither party was awarded anything;
(h) No jurisdiction;
(i) Decision delayed beyond forty
days under paragraph (C)(8)(a) of this rule;
(j) Decision delayed beyond forty
days under paragraph (C)(8)(b) of this rule;
(k) Decision delayed beyond forty
days under paragraph (C)(8)(c) of this rule;
(l) Decision delayed beyond forty
days under paragraph (C)(8)(d) of this rule;
(m) Decision delayed beyond forty
days for any other reason; and
(n) Decision is pending and the
forty-day limit has not expired.
In addition, the board shall compile semiannually and maintain
and file with the attorney general a compilation of the semiannual statistics
which show the number and per cent of the total number of disputes received
(which need not add up to one hundred per cent of all disputes received) in
which:
(o) Consumer requested a refund or
replacement for a motor vehicle within the first year or eighteen thousand
miles of operation;
(p) Vehicle refund or replacement was
awarded, specifying whether the award was made by arbitration or through
settlement;
(q) Vehicle refund or replacement
decisions complied with by the manufacturer, specifying whether the decision
was made by arbitration or through settlement;
(r) Decisions in which additional
repairs were the most prominent remedy, specifying whether the decision was
made by arbitration or through settlement;
(s) Decisions in which a warranty
extension was the most prominent remedy, specifying whether the decision was
made by arbitration or through settlement;
(t) Decisions in which reimbursement
for expenses or compensation for losses was the most prominent remedy,
specifying whether the decision was made by arbitration or through
settlement;
(u) Vehicle refund or replacement
arbitration awards accepted by the consumer; and
(v) Nonrepurchase or replacement
arbitration decisions accepted by the consumer.
(6) The board shall compile
semiannually and maintain and file with the attorney general a listing of all
vehicle identification numbers of all vehicles for which decisions or
settlements entitled the consumer to a refund or replacement.
(7) The board shall retain all
records specified in paragraphs (D)(1) to (D)(6) of this rule at least four
years after final disposition of the dispute.
(E) Audits
(1) The board shall have an audit
conducted at least annually to determine whether the board and its dispute
resolution processes are in compliance with this chapter. All records of the
board required to be kept under paragraph (D) of this rule shall be available
for audit.
(2) Each audit provided for in
paragraph (E)(1) of this rule shall include at a minimum the
following:
(a) Evaluation of warrantor's efforts
to make consumers aware of the board's existence as required by paragraph (E)
of rule 109:4-4-03 of the Administrative Code;
(b) Review of the indices maintained
pursuant to paragraph (D) of this rule; and
(c) Analysis of a random sample of
disputes handled to determine the following: (i) adequacy of the board's
complaint and other forms, investigation, mediation and follow-up efforts and
other aspects of complaint handling; and (ii) accuracy of the board's
statistical compilations under paragraph (D) of this rule. (For purposes of
this paragraph, "analysis" shall include oral or written contact with the
consumers involved in each of the disputes in the random sample.)
(3) A report of each audit under
paragraph (E) of this rule shall be submitted to the attorney general and shall
be made available to any person at reasonable cost. The board may direct its
auditor to delete names of parties to disputes from the audit
report.
(4) Auditors shall be selected by the
board. No auditor may be involved with the board as a warrantor, sponsor or
arbitrator, or employee or agent thereof, other than for purposes of the
audit.
(F) Openness of records and
proceedings
(1) The statistical summaries
specified in paragraphs (D)(2), (D)(3), (D)(4), (D)(5) and (D)(6) of this rule
shall be available to any person for inspection and copying.
(2) Except as provided under
paragraphs (E)(3), (F)(1) and (F)(5) of this rule, all records of the board may
be kept confidential or made available only on such terms and conditions, or in
such form, as the board shall permit and to the extent that Ohio law will
allow.
(3) The policy of the board with
respect to records made available at the board's option shall be set out in the
written procedures required by paragraph (C)(1) of this rule. The policy shall
be applied uniformly to all requests for access to or copies of such
records.
(4) Meetings of the arbitrators to
hear disputes shall be open to observers on reasonable and nondiscriminatory
terms, as long as the consumer does not object. The identity of the parties
involved in disputes need not be disclosed at meetings.
(5) Upon request, the board 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.
(6) The board shall make available to
any person, upon request, information relating to the qualifications of board
staff, arbitrators, and neutral technicians or consultants and detailed
information relating to any interest and involvement of the arbitrators in the
manufacture, distribution, sale, or service of any motor vehicle.
