HB-6099, As Passed Senate, July 21, 2010

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 6099

     A bill to amend 1981 PA 118, entitled

"An act to regulate motor vehicle manufacturers, distributors,

wholesalers, dealers, and their representatives; to regulate

dealings between manufacturers and distributors or wholesalers and

their dealers; to regulate dealings between manufacturers,

distributors, wholesalers, dealers, and consumers; to prohibit

unfair practices; to provide remedies and penalties; and to repeal

certain acts and parts of acts,"

by amending sections 2, 3, and 4 (MCL 445.1562, 445.1563, and

445.1564), sections 2 and 3 as amended by 1998 PA 456 and section 4

as amended by 2000 PA 240.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2. (1) "Closed dealership" means a new motor vehicle

dealer whose dealer agreement has been terminated, canceled,

discontinued, or not renewed.

     (2) "Coerce" means to compel or attempt to compel a person to

act in a given manner or to refrain from acting in a given manner

by pressure, intimidation, or threat of harm, damage, breach of

contract, or other adverse consequences, including, but not limited

to, the loss of any benefit available to other new motor vehicle

dealers of the same line make in this state. The term does not

include any of the following actions by a manufacturer:

     (a) Without conditions, making a good faith recommendation,

exposition, or argument or persuading or attempting to persuade a

person.

     (b) Giving notice in good faith to a new motor vehicle dealer

of that dealer's violation of the terms or provisions of a dealer

agreement.

     (c) Engaging in any conduct the manufacturer is permitted to

engage in under this act.

(3) (2) "Dealer agreement" means the an agreement or contract

in writing between a distributor and a new motor vehicle dealer,

between a manufacturer and a distributor or a new motor vehicle

dealer, or between an importer and a distributor or a new motor

vehicle dealer, which that purports to establish the legal rights

and obligations of the parties to the agreement or contract with

regard to the purchase and sale or resale of new and unaltered

motor vehicles and accessories for motor vehicles and under which

the dealer purchases and resells new motor vehicles and conducts

service operations. The term includes the sales and service

agreement, regardless of the terminology used to describe that

agreement, and any addenda to the dealer agreement, including all

schedules, attachments, exhibits, and agreements incorporated by

reference into the dealer agreement.

(4) (3) "Designated family member" means any of the following:

     (a) If a new motor vehicle dealer who dies or becomes

incapacitated has designated a successor under section 15(6), that

designated successor.

     (b) If a new motor vehicle owner dies and has not designated a

successor under section 15(6), the spouse , or a child, grandchild,

parent, brother, or sister of a deceased new motor vehicle dealer,

who is entitled to inherit the deceased dealer's ownership interest

in the new motor vehicle dealership under the terms of the dealer's

will, or who has otherwise been designated in writing by a deceased

dealer to succeed the deceased dealer in the new motor vehicle

dealership, or who is entitled to inherit under the laws of

intestate succession of this state . With respect to an

incapacitated new motor vehicle dealer, the term means the person

appointed by a court as the legal representative of the new motor

vehicle dealer's property. The term also includes or the appointed

and qualified personal representative and the or testamentary

trustee of a the deceased new motor vehicle dealer. However, the

term shall mean only that designated successor nominated by the new

motor vehicle dealer in a written document filed by the dealer with

the manufacturer or distributor, if such a document is filed.

     (c) If a new motor vehicle dealer becomes incapacitated and

has not designated a successor under section 15(6), the person

appointed by the court as the legal representative of the dealer.

     Sec. 3. (1) "Distributor" means any person, including an

importer, resident or nonresident, who that is located in or

outside of this state and is engaged in the business pursuant to a

dealer agreement, in whole or in part, of offering for sale,

selling, or distributing new and unaltered motor vehicles to a new

motor vehicle dealer , who under a dealer agreement, that maintains

a factory representative for such purposes, resident or

nonresident, that is located in or outside of this state for

purposes of conducting that business, or who that controls any a

person , resident or nonresident, who in whole or in part that is

located in or outside of this state and offers for sale, sells, or

distributes new and unaltered motor vehicles to a new motor vehicle

dealer. Distributor does not include a person who that alters or

converts motor vehicles for sale to a new motor vehicle dealer.

     (2) "Established place of business" means a permanent,

enclosed commercial building located within in this state that is

easily accessible and open to the public at all reasonable times

and at which the business of a new motor vehicle dealer may legally

conduct business, including the display and repair of motor

vehicles, may be lawfully carried on in accordance compliance with

the terms of all applicable buildings codes, zoning, and other

land-use regulatory ordinances.

     (3) "Executive manager" means an individual employed by a new

motor vehicle dealer in an executive capacity and who has a written

employment agreement with the dealer that includes a right for the

executive manager to purchase a controlling interest in the

dealership at a future time or on the death or incapacity of the

dealer.

(4) (3) "Factory branch" means an office maintained by a

manufacturer or distributor for the purpose of selling or offering

for sale to sell vehicles to a distributor, wholesaler, or new

motor vehicle dealer , or for directing or supervising in whole or

in part any factory or distributor representatives. The term

includes any sales promotion organization maintained by a

manufacturer or distributor which that is engaged in promoting the

sale of a particular make of new motor vehicles in this state to

new motor vehicle dealers.

(5) (4) "Factory representative" means an agent or employee of

a manufacturer, distributor, or factory branch retained or employed

for the purpose of making or promoting the sale of new motor

vehicles or for supervising or contracting with new motor vehicle

dealers or proposed motor vehicle dealers.

     Sec. 4. (1) "Good faith" means honesty in fact and the

observation of reasonable commercial standards of fair dealing in

the trade, as defined and interpreted under that term as defined in

section 2103 of the uniform commercial code, 1962 PA 174, MCL

440.2103.

     (2) "Manufacturer" means any a person who that manufactures or

assembles new motor vehicles ; or any a distributor, factory

branch, or factory representative.

     (3) "Motor vehicle" means that term as defined in section 33

of the Michigan vehicle code, 1949 PA 300, MCL 257.33, but does not

include a bus, a tractor, or farm equipment.

     (4) "Motor vehicle service and repair facility" means a motor

vehicle repair facility, as defined in section 2 of the motor

vehicle service and repair act, 1974 PA 300, MCL 257.1302. The term

does not include a motor vehicle dealer performing maintenance,

diagnosis, vehicle body work, repairs, or other service or repair

work on motor vehicles under the terms of a dealer agreement.

     Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 95th Legislature are

enacted into law:

     (a) Senate Bill No. 1308.

     (b) Senate Bill No. 1309.

     (c) House Bill No. 6100.

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