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AB-1263 Contracts: consumer services: consumer complaints.(2019-2020)

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Date Published: 01/06/2020 02:00 PM
AB1263:v97#DOCUMENT

Amended  IN  Assembly  January 06, 2020
Amended  IN  Assembly  April 01, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1263


Introduced by Assembly Member Low

February 21, 2019


An act to add Chapter 1.6 (commencing with Section 1939.60) to Title 5 of Part 4 of Division 3 of the Civil Code, to add Article 5.1 (commencing with Section 11629.6) to Chapter 1 of Part 3 of Division 2 of, and to repeal Section 11580.24 of, the Insurance Code, and to amend Sections 11752, 11754, and 11760 of the Vehicle Code, Section 1670.8.5 to the Civil Code, relating to business regulation.


LEGISLATIVE COUNSEL'S DIGEST


AB 1263, as amended, Low. Peer-to-peer car sharing. Contracts: consumer services: consumer complaints.
Existing law regulates the formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.
Existing law regulates licensees who are subject to the jurisdiction of a state licensing entity, including the State Bar of California, the Department of Real Estate, the Department of Consumer Affairs, or any other state agency that issues a license, certificate, or registration authorizing a person to engage in a business or profession.
This bill would prohibit a contract or proposed contract involving the provision of a consumer service by a licensee regulated by a licensing board from including a provision limiting the consumer’s ability to file a complaint with that board or to participate in the board’s investigation into the licensee. The bill would specify that a waiver of these provisions is contrary to public policy and is void and unenforceable. The bill would provide that a violation of these provisions by a licensee constitutes unprofessional conduct subject to discipline by the licensee’s regulatory board.

Existing law defines a personal vehicle sharing program as a legal entity qualified to do business in the state that is engaged in the business of facilitating the sharing of private passenger vehicles for noncommercial use by individuals within the state.

This bill would rename “personal vehicle sharing program” to “peer-to-peer car sharing program” and would require specified disclosures to be made in a peer-to-peer car sharing contract. This bill would authorize a peer-to-peer car sharing program to only enter into a contract with a licensed driver, as specified. The bill would make a peer-to-peer car sharing program responsible for any equipment that is to be installed in a vehicle to facilitate car sharing transactions. The bill would authorize airports to regulate access and use by peer-to-peer car sharing vehicles. The bill would also require peer-to-peer car sharing programs and participants to be insured, as specified.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1670.8.5 is added to the Civil Code, to read:

1670.8.5.
 (a) A contract or proposed contract involving the provision of a consumer service by a licensee regulated by a licensing board shall not include a provision limiting the consumer’s ability to file a complaint with that board or to participate in the board’s investigation into the licensee.
(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.
(c) For purposes of this section, the following terms apply:
(1) “Consumer service” means any service which is obtained for use primarily for personal, family, or household purposes.
(2) “Licensing board” means any entity contained in Section 101 of the Business and Professions Code, the State Bar of California, the Department of Real Estate, or any other state agency that issues a license, certificate, or registration authorizing a person to engage in a business or profession.
(d) Violation of this section by a licensee shall constitute unprofessional conduct subject to discipline by the licensee’s licensing board.

SECTION 1.Chapter 1.6 (commencing with Section 1939.60) is added to Title 5 of Part 4 of Division 3 of the Civil Code, to read:
1.6.Peer-to-Peer Car Sharing Programs
1939.60.

This chapter may be cited as the Peer-to-Peer Car Sharing Program Act.

1939.61.

As used in this chapter, the following terms have the following meanings:

(a)“Car sharing delivery period” means the period of time during which a shared vehicle is being delivered to the location where the car sharing start time will commence, if applicable, as documented by the governing car sharing program agreement.

(b)“Car sharing period” means the period of time from the commencement of the car sharing delivery period or, if there is no car sharing delivery period, from the car sharing start time, through the car sharing termination time.

(c)“Car sharing program agreement” means the terms and conditions applicable to a shared vehicle owner and a shared vehicle driver that govern the use of a shared vehicle through a peer-to-peer car sharing program.

(d)“Car sharing start time” means the time when the shared vehicle driver takes control of the shared vehicle at or after the time the reservation of a shared vehicle is scheduled to begin as documented in the records of a peer-to-peer car sharing program.

(e)“Car sharing termination time” means the time when the shared vehicle is returned to the location designated by the shared vehicle owner through a peer-to-peer car sharing program, and the earliest of one of the following occurs:

(1)The intent to terminate the use of the shared vehicle is verifiably communicated by the shared vehicle driver to the shared vehicle owner using the peer-to-peer car sharing program.

(2)The shared vehicle owner or the shared vehicle owner’s authorized designee takes possession and control of the shared vehicle.

(3)The period of time established for the use of a shared vehicle in the governing car sharing program agreement expires.

(f)“Peer-to-peer car sharing” means the authorized use of a vehicle by an individual other than the vehicle’s owner through a peer-to-peer car sharing program.

(g)“Peer-to-peer car sharing program” means a business platform that connects vehicle owners with licensed drivers to enable the sharing of vehicles for financial consideration. “Peer-to-peer car sharing program” does not mean car rental agency.

(h)“Shared vehicle” means a vehicle that is available for sharing through a peer-to-peer car sharing program.

(i)“Shared vehicle driver” means a person who is authorized to drive a shared vehicle by the shared vehicle owner under a car sharing program agreement.

(j)“Shared vehicle owner” means the registered owner of a vehicle made available for sharing to shared vehicle drivers through a peer-to-peer car sharing program.

1939.62.

Each car sharing program agreement made in the state shall disclose to the shared vehicle owner and the shared vehicle driver all of the following:

(a)Any right of the peer-to-peer car sharing program to seek indemnification from the shared vehicle owner or the shared vehicle driver for economic loss sustained by the peer-to-peer car sharing program resulting from a breach of the terms and conditions of the car sharing program agreement.

(b)That an automobile liability insurance policy issued to the shared vehicle owner for the shared vehicle or to the shared vehicle driver does not provide a defense or indemnification for any claim asserted by the peer-to-peer car sharing program.

(c)That the peer-to-peer car sharing program’s insurance coverage on the shared vehicle owner and the shared vehicle driver, required pursuant to Article 5.1 (commencing with Section 11629.6) to Chapter 1 of Part 3 of Division 2 of the Insurance Code, is in effect only during each car sharing period and that, for any use of the shared vehicle by the shared vehicle driver after the car sharing termination time, the shared vehicle driver and the shared vehicle owner may not be covered.

(d)The amounts of the daily rate, additional mandatory charges, fees, and, if applicable, any insurance or protection plan costs that are charged to the shared vehicle owner or the shared vehicle driver.

(e)That the shared vehicle owner’s motor vehicle liability insurance may not provide coverage for a shared vehicle.

(f)An emergency telephone number for customer service inquiries, including requests for emergency roadside assistance.

1939.63.

A peer-to-peer car sharing program shall disclose the daily rate, charges, fees, and costs when providing a quote and shall not require any other fees or charges to be paid as a condition of using the shared vehicle.

1939.64.

(a)A peer-to-peer car sharing program shall only enter into a car sharing program agreement with a shared vehicle driver who is at least 18 years of age and who provides documentation of either of the following documents:

(1)A valid, unexpired California driver’s license that authorizes the driver to operate a vehicle of the same class as the shared vehicle.

(2)A valid, unexpired driver’s license issued by the state or country of the shared vehicle driver’s residence that authorizes the driver in that state or country to drive a vehicle of the same class as the shared vehicle.

1939.65.

A peer-to-peer car sharing program shall have sole responsibility for any equipment that is installed in or on the vehicle to facilitate the car sharing transaction, and shall agree to indemnify and hold harmless the shared vehicle owner for any damage to or theft of the equipment during the sharing period not caused by the vehicle owner. The peer-to-peer car sharing program has the right to seek indemnity from the shared vehicle driver for any loss or damage to the equipment that occurs during the car sharing period.

1939.66.

(a)Notwithstanding any other law, a commercial airport authority is authorized to regulate access to an airport and set access fees for peer-to-peer car sharing programs. If required, a peer-to-peer car sharing program shall obtain a permit or other written authorization from the airport operator prior to facilitating the sharing of vehicles at that airport.

(b)This section does not affect the authority of any political subdivision of the state to regulate access to an airport it owns or operates and to set access fees or requirements for a peer-to-peer car sharing program.

SEC. 2.Section 11580.24 of the Insurance Code is repealed.
SEC. 3.Article 5.1 (commencing with Section 11629.6) is added to Chapter 1 of Part 3 of Division 2 of the Insurance Code, to read:
5.1.Peer-to-Peer Car Sharing Programs
11629.6.

For purposes of this article, the definitions set forth in Section 1939.61 of the Civil Code shall apply.

11629.61.

(a)A peer-to-peer car sharing program shall assume the liability of a shared vehicle owner for any property damage to the shared vehicle or any bodily injury or property damage to third parties or uninsured and underinsured motorist or personal injury protection losses during the car sharing period in an amount stated in the peer-to-peer car sharing program agreement which amount may not be less than those set forth in Section 16056 of the Vehicle Code. In addition, a peer-to-peer car sharing program shall also assume liability for the shared vehicle.

The assumption of liability does not apply if the shared vehicle owner makes an intentional or fraudulent material misrepresentation to the peer-to-peer car sharing program before the car sharing period in which the loss occurred.

(b)A peer-to-peer car sharing program shall ensure that, during each car sharing period, the shared vehicle owner and the shared vehicle driver are insured under a motor vehicle liability insurance policy that provides insurance coverage in amounts no less than _______.

(c)The insurance described in subdivision (b) may be satisfied by motor vehicle liability insurance maintained by any of the following:

(1)The shared vehicle owner.

(2)The shared vehicle driver.

(3)The peer-to-peer car sharing program.

(4)Any combination of the above.

(d)The peer-to-peer car sharing program shall assume primary liability for a claim when it is, in whole or in part, providing the insurance required under subdivision (b) and both of the following are true:

(1)A dispute exists as to who was in control of the shared motor vehicle at the time of the loss.

(2)The peer-to-peer car sharing program does not have available, did not retain, or fails to provide the information required pursuant to Section 11629.65.

(e)If a peer-to-peer car sharing program assumes liability for a claim pursuant to subdivision (d), and it is later determined that the shared motor vehicle’s owner was in control of the shared motor vehicle at the time of the loss, the shared motor vehicle’s insurer shall indemnify the car sharing program to the extent of its obligation, if any, under the applicable insurance policy.

(f)If the insurance described in subdivision (c) maintained by a shared vehicle owner or shared vehicle driver has lapsed or does not provide the required coverage, insurance maintained by the peer-to-peer car sharing program shall provide the coverage required pursuant to subdivision (b) beginning with the first dollar of a claim and shall have the duty to defend such a claim.

(g)Coverage under an automobile insurance policy maintained by the peer-to-peer car sharing program shall not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required to first deny a claim.

(h)This article does not limit either of the following:

(1)The liability of a peer-to-peer car sharing program for any act or omission of the peer-to-peer car sharing program itself that results in injury to any person as a result of the use of a shared vehicle through a peer-to-peer car sharing program.

(2)The ability of a peer-to-peer car sharing program to, by contract, seek indemnification from the shared vehicle owner or the shared vehicle driver for economic loss sustained by the peer-to-peer car sharing program resulting from a breach of the terms and conditions of the car sharing program agreement.

11629.62.

Before a shared vehicle is made available for car sharing on the peer-to-peer car sharing program, the peer-to-peer car sharing program shall notify the shared vehicle owner that, if the shared vehicle has a lien against it, the use of the shared vehicle through a peer-to-peer car sharing program, including use without physical damage coverage, may violate the terms of the contract with the lienholder.

11629.63.

An authorized insurer that writes motor vehicle liability insurance may exclude any and all coverage and the duty to defend or indemnify for any claim afforded under a shared vehicle owner’s personal motor vehicle liability insurance policy. This article does not invalidate or limit an exclusion contained in a motor vehicle liability insurance policy, including any insurance policy in use or approved for use that excludes coverage for motor vehicles made available for rent, sharing, or hire or for any business use.

11629.64.

A motor vehicle insurer may not deny, cancel, void, terminate, rescind, or nonrenew a policy of personal private passenger automobile liability insurance of a shared vehicle owner solely on the basis that vehicle covered under the policy has been made available for sharing through a peer-to-peer car sharing program.

11629.65.

A peer-to-peer car sharing program shall collect and verify records pertaining to the use of a vehicle, including, but not limited to, times used, fees paid by the shared vehicle driver, and revenues received by the shared vehicle owner and provide that information upon request to the shared vehicle owner, the shared vehicle owner’s insurer, or the shared vehicle driver’s insurer to facilitate a claim coverage investigation. The peer-to-peer car sharing program shall retain the records for not less than five years unless a longer retention period is otherwise required by law.

11629.66.

A motor vehicle insurer that defends or indemnifies a claim involving a shared vehicle that is excluded under the terms of its policy shall have the right to seek contribution against the motor vehicle insurer of the peer-to-peer car sharing program if both of the following are true:

(a)The claim is made against the shared vehicle owner or the shared vehicle driver for loss or injury that occurs during the car sharing period.

(b)Coverage for peer-to-peer vehicle sharing is excluded under the terms of its policy.

11629.67.

A peer-to-peer car sharing program shall, for each vehicle that it facilitates the use of, provide the registered owner of the vehicle with a Department of Motor Vehicles Form REG 5085 or other suitable proof of compliance with the insurance requirements of this section and the requirements of the California Financial Responsibility Law in Section 1656.2 of the Vehicle Code, a copy of which shall be maintained in the vehicle by the vehicle’s registered owner during any time when the vehicle is operated by any person other than the vehicle’s owner pursuant to a peer-to-peer car sharing program.

SEC. 4.Section 11752 of the Vehicle Code is amended to read:
11752.

As used in this article, the following definitions apply:

(a)The term “dealer” has the same meaning as in Section 285.

(b)(1)A “manufacturer’s recall” is a recall conducted pursuant to Sections 30118 to 30120, inclusive, of Title 49 of the United States Code.

(2)A manufacturer’s recall does not include a service campaign or emission recall when the vehicle manufacturer or the National Highway Traffic Safety Administration has not issued a recall notice to owners of affected vehicles, pursuant to Section 30118 of Title 49 of the United States Code.

(c)A “peer-to-peer car sharing program” has the same meaning as defined in Section 1939.61 of the Civil Code.

(d)A “recall database” is a database from which an individual may obtain vehicle identification number (VIN) specific manufacturer’s recall information relevant to a specific vehicle.

(1)For a vehicle manufacturer that is not subject to the regulations adopted pursuant to Section 31301 of the federal Moving Ahead for Progress in the 21st Century Act (Public Law 112-141), a recall database is one of the following:

(A)The recall data on a vehicle manufacturer’s internet website for a specific vehicle’s line-make.

(B)The recall data in a vehicle manufacturer’s internal system that provides information to its franchisees on vehicles subject to recall.

(C)The recall data in subparagraph (A) or (B) that is contained in a commercially available vehicle history system.

(2)For a vehicle manufacturer that is subject to the regulations adopted pursuant to Section 31301 of the federal Moving Ahead for Progress in the 21st Century Act (Public Law 112-141), a recall database shall include, at a minimum, the recall information required pursuant to Section 573.15 of Title 49 of the Code of Federal Regulations.

(e)A “recall database report” is a report, specific to a vehicle that is identified by its VIN, containing information obtained from a recall database.

(f)A “rental car company” is a person or entity in the business of renting passenger vehicles to the public in California.

SEC. 5.Section 11754 of the Vehicle Code is amended to read:
11754.

(a)No later than 48 hours after receiving a notice of a manufacturer’s recall, or sooner if practicable, a dealer or rental car company with a motor vehicle fleet of 34 or fewer loaner or rental vehicles shall not loan, rent, or offer for loan or rent a vehicle subject to that recall until the recall repair has been made.

(b)If a recall notification indicates that the remedy for the recall is not immediately available and specifies actions to temporarily repair the vehicle in a manner to eliminate the safety risk that prompted the recall, the dealer or rental car company, after having the repairs completed, may loan or rent the vehicle. Once the remedy for the vehicle becomes available to the dealer or rental car company, the dealer or rental car company shall not loan or rent the vehicle until the vehicle has been repaired.

(c)As soon as practicable but not more than 48 hours after a vehicle is subject to a manufacturer’s recall, as defined in subdivision (b) of Section 11752, and a recall notice has been issued by the manufacturer and appears in the recall database provided by the National Highway Traffic Safety Administration pursuant to Section 573.15 of Title 49 of the Code of Federal Regulations, or not more than 48 hours after the peer-to-peer car sharing program receives notification of a manufacturer’s recall by a third party with which the peer-to-peer car sharing program contracts to provide notification of active recalls, a peer-to-peer car sharing program shall not facilitate or otherwise arrange for transportation with that vehicle until after any recall notices for that vehicle no longer appear in the recall database provided by the National Highway Traffic Safety Administration.

(d)The changes to this section made by Chapter 591 of the Statutes of 2018 do not apply in any manner to litigation pending as of January 1, 2019.

(e)This section does not affect the determination of whether or not a company is a rental car company or whether or not a company is a peer-to-peer car sharing company.

SEC. 6.Section 11760 of the Vehicle Code is amended to read:
11760.

(a)This article does not create any legal duty upon the dealer, rental car company, peer-to-peer car sharing program, or department related to the accuracy, errors, or omissions contained in a recall database report or any legal duty to provide information added to a recall database after the dealer, rental car company, peer-to-peer car sharing program, or department obtained the recall database report pursuant to Sections 11754 and 11758.

(b)The changes to this section made by Chapter 591 of the statutes of 2018 shall not apply in any manner to litigation that is pending as of January 1, 2019.

(c)This section does not affect the determination of whether or not a company is a rental car company or whether or not a company is a peer-to-peer car sharing program.