CopyCited 12 times | Published | Supreme Court of Florida | 23 Fla. L. Weekly Supp. 464, 1998 Fla. LEXIS 1684, 1998 WL 633693
...e defect to Chrysler Corporation, the manufacturer of the vehicle, in accordance with section
681.104(1), Florida Statutes (1989), affording Chrysler a final opportunity to repair the vehicle. The defect was not repaired, and Pitsirelos, pursuant to section
681.1095, Florida Statutes (1989), applied for arbitration proceedings before the Arbitration Board....
...Following a hearing, the Arbitration Board concluded that Pitsirelos's vehicle was a "lemon" within the meaning of the Lemon Law and ordered Chrysler to pay Pitsirelos the value of the vehicle plus incidental charges. Chrysler filed a petition for a trial de novo appeal with the Circuit Court for St. Lucie County under section 681.1095(13)....
...First, the district court concluded that the trial court correctly placed the burden of proof on Chrysler and that the Arbitration Board's decision was admissible and presumed correct. Id. at 1133. The court then addressed the constitutionality of the $25-per-day continuing damage provision of section 681.1095(14), Florida Statutes (1989)....
...s at the trial de novo appeal proceeding; and (3) whether the continuing damages provision unconstitutionally penalizes the manufacturer for appealing the Arbitration Board's decision. [16] (1) BURDEN OF PERSUASION AT TRIAL DE NOVO APPEAL PROCEEDING Section 681.1095 reads in part as follows: (13) An appeal of a decision by the board to the circuit court by a consumer or a manufacturer shall be by trial de novo....
...5th DCA 1993). In Mason, the district court held that under the procedure established by the legislature in chapter 681, Florida Statutes, the party appealing the Arbitration Board's decision carries the burden of proof. The court reasoned as follows: Section 681.1095(13) provides that the appealing party must state the action requested and the grounds relied upon for appeal....
...rmative relief, be the party that bears the burden of persuading that the relief sought in the circuit court should be granted. We find no constitutional barrier to this procedure. Accordingly, we hold that in a trial de novo appeal proceeding under section 681.1095(13), Florida Statutes (1989), the party appealing the decision of the Arbitration Board to the circuit court, whether consumer or manufacturer, bears the burden of going forward with the evidence and of persuasion in the trial de novo appeal proceeding....
...decision is not to be given a presumption of correctness. The district court below held that "[t]he arbitration board decision is introduced in the de novo trial and is presumed to be correct." Pitsirelos,
689 So.2d at 1133 (citing Aguiar; Mason ). Section
681.1095(10), Florida Statutes (1989), states that "[i]n any civil action arising under this chapter and relating to a dispute arbitrated before the board, any decision by the board is admissible in evidence." It is important to emphasize tha...
...ment of Legal Affairs of the Attorney General's Office of the State of Florida. Proceedings before the Arbitration Board are informal and exempt from the provisions of chapter 120. The rules of evidence and civil procedure do not apply. To interpret section 681.1095(10), Florida Statutes (1989), as mandating that the decision of the Arbitration Board be presumed correct in the trial de novo appeal would raise a serious issue as to whether it would violate article I, section 9, and article II, se...
...on this issue, we disapprove those decisions. We quash the decision of the district court in this case as to this issue. (3) CONTINUING DAMAGES AWARDS The Fourth District affirmed the trial court's award to Pitsirelos of continuing damages under subsection 681.1095(14), Florida Statutes (1989)....
...ar, the use of the term "trial de novo." I would hold that the consumer carries the initial burden of proof at both the arbitration proceeding and the trial de novo, regardless of whether the Arbitration Board ruled in the consumer's favor. Although section 681.1095(13) refers to the trial de novo as an "appeal," the trial de novo is not in the nature of a standard appeal from a lower court decision because the Arbitration Board decision is not under appellate review....
...quiring the consumer to bear the initial burden of proof at the trial de novo. The arbitration proceeding benefits the consumer by affording an opportunity to resolve the warranty dispute in a relatively expeditious and inexpensive manner. Moreover, section 681.1095(10) provides that the decision of the Arbitration Board may be admitted into evidence at the trial de novo....
...In my view, a favorable arbitration decision would be powerful evidence in support of the consumer's claim. To support the holding that the appealing party bears the burden of proof at the trial de novo, the majority and the district court below note that section 681.1095(13) requires the appealing party to state in a written *716 petition the action requested and the grounds relied upon. I believe the purpose of this requirement is to enable the circuit court to determine whether the trial de novo was sought in good faith. Section 681.1095(14) permits the court to double or triple the amount of damages to the consumer if the manufacturer filed the petition for a trial de novo in bad faith....
...are necessary to conform the vehicle to the warranty.... [4] §
681.104, Fla. Stat. (1989). A "nonconformity" is "a defect or condition that substantially impairs the use, value, or safety of a motor vehicle." §
681.102(12), Fla. Stat. (1989). [5] §
681.109(3), Fla. Stat. (1989). [6] §
681.1095(4), Fla. Stat. (1989). [7] §
681.1095(12), Fla. Stat. (1989). [8] §
681.1095(5), Fla. Stat. (1989). [9] §
681.1095(10), Fla. Stat. (1989). [10] §
681.1095(10), Fla. Stat. (1989). [11] §§
681.1095(10), (11), Fla. Stat. (1989). [12] §
681.1095(11), Fla. Stat. (1989). [13] §
681.1095(14), Fla. Stat. (1989). [14] §
681.1095(13), Fla....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2213324
...[3] In addition to the opportunity to testify, present evidence, and cross-examine witnesses, if Kidwell was dissatisfied with the decision of the BBB arbitrator he could have sought review by applying to the Florida New Motor Vehicle Arbitration Board, which he failed to do. See § 681.109(2), Fla....
...DAVIS and CANADY, JJ., Concur. NOTES [1] In order to pursue a claim under Florida's Lemon Law, Kidwell was required to submit to arbitration under GM's established informal dispute settlement procedure with Auto Line, a program operated by the Better Business Bureau. See § 681.109(1), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2001 WL 121115
...While the inoperable car sat on King Motor's lot, the lender repossessed and resold the vehicle. King brought suit against Kia under Chapter 681, Florida Statutes (2000), the Motor Vehicle Warranty Enforcement Act, also known as the Lemon Law. Although King did not timely file for arbitration under sections
681.109 and
681.1095, he contended that this failure was caused by Kia's noncompliance with section
681.103(3), regarding a manufacturer's obligation to "inform the consumer clearly and conspicuously in writing how and where to file a claim with a certified proc...
...e and at least fit for the ordinary purposes for which such vehicles are used." The Magnuson-Moss counts sought compensatory damages, costs, and attorney's fees. Citing eleven decisions from Florida New Motor Vehicle Arbitration Boards created under section 681.1095, Florida Statutes, the circuit judge dismissed the Lemon Law claim....
...88-95, Laws of Fla.; Daiker, 45 FLA.L.REV. at 255-56. One significant change was the creation of the Florida New Motor Vehicle Arbitration Board as part of a statutory procedure to secure the replacement/refund remedy described in sections
681.101 and
681.104(2)(a). See §
681.109, Fla.Stat....
...(2000); Ch. 88-95, § 6, at 438, Laws of Fla. The Arbitration Board is a neutral forum where consumers may obtain relief without having to go through the expense and delay of filing a lawsuit. Abbreviated time frames control arbitrations before a Board. See §
681.1095(6), Fla.Stat. (2000). The statute authorizes a board to "grant relief, if a reasonable number of attempts have been undertaken to correct a nonconformity or nonconformities." §
681.1095(8), Fla.Stat. (2000). Consistent with the language *940 of section
681.104(2)(a), the "relief" contemplated by section
681.1095 is the "delivery of an acceptable replacement motor vehicle or the refund specified in the arbitration award." §
681.1095(9), Fla.Stat. (2000). The "relief" also includes "all reasonably incurred collateral and incidental charges ." §
681.104(2)(a), Fla.Stat. (2000). A party may appeal a decision by the Board to the circuit court, which reviews the matter by "trial de novo." §
681.1095(12), Fla.Stat....
...lue of the award, attorney's fees incurred in obtaining confirmation of the award, and all costs and continuing damages in the amount of $25 per day for each day beyond the 40-day period following the manufacturer's receipt of the board's decision." § 681.1095(13), Fla.Stat....
...at the manufacturer acted in bad faith." Id. The Lemon Law favors resolution of cases outside of the court system in either dispute settlement procedures established by a manufacturer under section
681.108 or arbitration before the Board pursuant to section
681.109-
681.1095. This preference is implemented by section
681.1095(4), which provides: Before filing a civil action on a matter subject to s.
681.104, the consumer must first submit the dispute to the [Division of Consumer Services of the Department of Agriculture and Consumer Services], and to the [B]oard if such dispute is deemed eligible for arbitration. Section
681.1095(4) furthers the intent of the Lemon Law "to resolve motor vehicle warranty disputes in expedited proceedings at less cost to consumers than traditional court proceedings." Chrysler Corp.,
721 So.2d at 712. Obviously, the term "civil action" in section
681.1095(4) cannot refer to the petition appealing an arbitration decision under section
681.1095(10)-(14), since such an appeal presumes a previous submission to arbitration. Section
681.1095(4) covers an action brought pursuant to section
681.109(7), where the division has rejected a dispute and the consumer "may file a lawsuit to enforce the remedies provided under" Chapter 681. Additionally, another "civil action" contemplated by section
681.1095(4) is that provided in section
681.112, Florida Statutes (2000), which states: (1) A consumer may file an action to recover damages caused by a violation of this chapter....
...(3) This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law. Section
681.112 provides for an action for damages caused by a statutory violation, apart from the replacement/refund remedy that is available by following the procedural pathway through arbitration contained in sections
681.109 and
681.1095. By requiring submission to the division and to arbitration, if appropriate, section
681.1095(4) guides consumers in the direction of the broadest remedy and the most streamlined procedure....
...*941 Section
681.112(1) uses the term "damages" and indicates that a prevailing consumer may recover "the amount of any pecuniary loss." When discussing the replacement/refund option, the statute uses the terms "refund," "replacement," "relief," and "compliance" with an arbitration decision. See §§
681.104(2)(a),
681.1095(8) & (9), Fla.Stat....
...Those decisions indicate that when a vehicle is not available for return to the manufacturer, the consumer is not eligible for relief under Lemon Law arbitration. The only relief provided for in a Chapter 681 arbitration is the replacement/refund option plus collateral and incidental charges. See §§
681.104(2)(a),
681.1095(8) & (9), Fla....
...12 (3d Cir.1997) (interpreting section 2310(d) to mean that "a consumer who is damaged by the failure of a dealer or manufacturer to comply with a warranty obligation can file suit to recover the purchase price plus collateral damages"). We have not considered any other issues in this case, such as whether King complied with section
681.1095(4) or the time limits of section
681.112(2); whether Kia had an "affirmative defense" to King's claim under section
681.104(4), Florida Statutes (2000); whether there was an enforceable express or implied warranty between appellant a...
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2003 WL 187190
...The Board found that the vehicle was a "lemon," and required Eclipse to pay damages to Buyer, accept a return of the vehicle, and satisfy Buyer's debt on the vehicle. At that point, Eclipse timely filed a petition for an "appeal by trial de novo" pursuant to section 681.1095(12)....
...The court declined to hold that the arbitrator's decision was entitled to a presumption of correctness, saying that it would be received in evidence along with any other evidence adduced by the parties. It also held that in an award of damages under subsection 681.1095(14) is limited "solely to reimburse the consumer for expenses relating to the loss of use of the vehicle during the pendency of the trial de novo appeal proceeding....
...The provider argued that compulsory arbitration violated the provider's right to access to the courts for redress on its claim for payment. To explain why the PIP provision for compulsory arbitration of such claims was invalid, the court said: "In [ Pitsirelos ], this Court examined section 681.1095(4), part of Florida's Motor Vehicle Warranty Enforcement Act, which requires parties in motor vehicle warranty disputes to submit to arbitration before filing an action in circuit court. Section 681.1095(13) provided for a trial de novo in the circuit court for a party who appealed the arbitration award....
...laintiff in an ordinary civil action must plead a cause of action entitling it to relief. Instead, the Lemon Law merely requires the party losing the arbitration to file a petition "stating the action requested and the grounds relied on for review." § 681.1095(12)....
...r trim panels, exterior paint defects, peeling bumper strips, intermittent operation of the television set, defective radio (pops while turned off), and a defective visor screen used in reversing the vehicle. [3] See Ch. 681, Fla. Stat. (2001), esp. § 681.109(1), (2), and (3). [4] See § 681.109(8), Fla. Stat. (2001) ("The department shall have the authority to adopt reasonable rules to carry out the provisions of this section."). [5] § 681.1095(12), Fla....
...justiciable issue of either law or fact raised by the consumer, shall result in the consumer being liable for all costs and reasonable attorney's fees incurred by the manufacturer, or its agent, as a direct result of the bad faith claim."). [7] See § 681.1095(13), (14), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 9252, 2000 WL 1508587
...ng. In accordance with the sales/purchase contract, the dealer satisfied the $16,393.45 debt on the Isuzu. Approximately one month after the purchase, Holzhauer-Mosher first reported a nonconformity in the Mustang. The problem continued. Pursuant to section 681.109, Florida Statutes (1997), Holzhauer-Mosher *9 requested arbitration with the Florida New Motor Vehicle Arbitration Board....
...The Arbitration Board awarded Holzhauer-Mosher a refund of $13,634.66 which it calculated by using the NADA retail price of $14,050 but without deducting the $16,393.45 Holzhauer-Mosher owed on her trade-in vehicle. Ford appealed the Board's decision to the circuit court pursuant to section 681.1095(19), Florida Statutes (1997), which provides for de novo review....
...olates the separation of powers doctrine and the right to equal protection. In Chrysler Corp. v. Pitsirelos,
689 So.2d 1132 (Fla. 4th DCA 1997), quashed on other grounds,
721 So.2d 710 (Fla.1998), the Fourth District considered similar challenges to section
681.1095(14), Florida Statutes (1989), which fixes continuing damages at $25 per day, and construed the Lemon Law to be constitutional as applied....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 9712, 2005 WL 1458727
...After purchasing the vehicle, Land complained of several defects and returned the vehicle several times to the dealership for *1155 repairs. Eventually, Land sought a hearing before the Better Business Bureau but received no relief. Next, Land sought arbitration as required by Florida's so-called "Lemon Law." § 681.109(2), Fla....
...Land's attorney made the tactical decision, by her own admission, to exclude from the complaint any reference to arbitration or trial de novo. In all relevant respects, the complaint appeared no different from an initial complaint in any standard action. Section 681.1095(12), Florida Statutes, describes the manner in which a Lemon Law arbitration decision can be appealed....
...The law requires "[a]n appeal of a decision by the board to the circuit court by a consumer or manufacturer shall be by trial de novo. In a written petition to appeal a decision by the board, the appealing party must state the action requested and the grounds relied upon for the appeal." § 681.1095(12), Fla....
...e appealing party to in some way inform the court and the opposing party that an arbitration decision had been rendered and "must state the action requested," that being a trial de novo to review the correctness of the arbitration decision. See id.; § 681.1095(12), Fla. Stat. In the instant case, Land's initial complaint did neither, thus the lower tribunal correctly determined Land did not properly appeal the arbitration decision which then became binding and final. § 681.1095(10), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 19612, 2005 WL 3299510
...Initially, we note that the consumers' claim for a replacement or refund under section
681.104 of the Lemon Law was first submitted to arbitration under the manufacturer's established procedure by "BBB Autoline," a program administered by the Better Business Bureau (BBB). See §
681.109(1), Fla....
...lize. The record shows that the consumers failed to make a timely request for a second arbitration before the Florida New Motor Vehicle Arbitration Board after successfully arbitrating before the manufacturer's program of arbitration by the BBB. See § 681.109(2), Fla....
...urer, that if the consumers wanted to further pursue their replacement or refund remedies under the Lemon Law, the consumers were required to file a petition for a second arbitration before the board within 30 days after the final action by the BBB. § 681.109(2),(4) ("The consumer must request arbitration before the board ......
