Effective 28 Aug 2004

407.735. Business practices, nondeceptive — collision damage waiver, terms, conditions, notice required — damages, estimates, how made — remedies. — 1. Any business practices utilized by car rental companies in furtherance of their business of renting vehicles to the public shall be nondeceptive, fair and shall not be unconscionable.

2. Any collision damage waiver product offered for sale to the public shall not contain any provisions that are deceptive, unfair or unconscionable. It is deceptive, unfair, and unconscionable to require a consumer to assume absolute liability for damage or loss up to the total value of a rental vehicle regardless of fault as a condition of the rental agreement, and then not include as part of any collision damage waiver product, a waiver of liability for any damage or loss which occurs as a result of the consumer's ordinary negligence, except where:

(1) The damage is caused intentionally by an authorized driver or as a result of his willful and wanton misconduct;

(2) The damage arises out of the authorized driver's operation of the vehicle while intoxicated or under the influence of any illegal or unauthorized drug;

(3) The rental transaction is based on fraudulent information supplied by the renter;

(4) The damage arises out of the use of the vehicle while committing or otherwise engaged in a criminal act in which the automobile usage is substantially related to the nature of the criminal activity;

(5) The damage arises out of the use of the vehicle to carry persons or property for hire;

(6) The damage occurs while the vehicle is operated by a person other than an authorized driver as defined in section 407.730;

(7) The damage arises out of the use of the vehicle outside of the United States unless such use is specifically authorized by the rental agreement;

(8) Towing or pushing anything or if operation of the vehicle on an unpaved road has resulted in damage or loss which is a direct result of the road or driving conditions;

(9) Loss due to the theft of the rental vehicle. However, the renter shall be presumed to have no liability for any loss due to theft if:

(a) An authorized driver has possession of the ignition key furnished by the rental company or an authorized driver establishes that the ignition key furnished by the car rental company was not in the vehicle at the time of the theft; and

(b) An authorized driver files an official report of the theft with the police or other law enforcement agency within twenty-four hours of learning of the theft and reasonably cooperates with the car rental company and the police or other law enforcement agency in providing information concerning the theft.

­­The presumption set forth in this paragraph is a presumption affecting the burden of proof which the car rental company may rebut by establishing that an authorized driver committed, or aided and abetted the commission of, the theft.

3. Any claim resulting from damage to or loss of a rental vehicle shall be reasonably and rationally related to the actual loss incurred. The car rental company shall not assert or collect any claim for physical or mechanical damage to or loss of a rental vehicle which exceeds: the actual cash value of the vehicle immediately before the loss less any proceeds from the vehicle's disposal after the loss, or the actual cost to repair the damaged vehicle including all discounts or price reductions, whichever is less. Such claim shall be based on an estimate of damage or repair invoice made by an independent appraisal company, an insurance company, or a repair facility that completed or would complete the repairs. A car rental company's charge for loss of use shall not exceed a reasonable estimate of the actual income lost.

4. It is a deceptive and unfair practice for a car rental company or employee to knowingly and intentionally misrepresent any material element of a rental agreement transaction including the sale of collision damage waiver and car rental insurance. The company shall disclose in the rental agreement the extent of the consumer's liability for the vehicle and applicable mileage limitations and charges. When the consumer elects the collision damage waiver or car rental insurance, the price for collision damage waiver and car rental insurance shall appear on the rental agreement. A car rental company shall not require the purchase of collision damage waiver or car rental insurance. No car rental company shall sell to a consumer or offer to sell a consumer a collision damage waiver or car rental insurance as a part of the rental agreement unless the car rental company provides the consumer with the following written notice:

COLLISION DAMAGE WAIVER AND CAR RENTAL INSURANCE NOTICE: OUR CONTRACT OFFERS FOR AN ADDITIONAL CHARGE COLLISION DAMAGE WAIVER AND CAR RENTAL INSURANCE PRODUCTS. BEFORE DECIDING WHETHER TO PURCHASE ANY OF THESE OPTIONAL PRODUCTS, YOU MAY WISH TO DETERMINE WHETHER YOUR PERSONAL INSURANCE OR CREDIT CARD PROVIDES YOU COVERAGE DURING THE RENTAL PERIOD. THE PURCHASE OF ANY OF THESE OPTIONAL PRODUCTS IS NOT REQUIRED TO RENT A VEHICLE.

­­Such notice shall be made on the face of the rental agreement as part of the written contract and shall be set apart in boldface type and in no smaller print than ten-point type, and shall include a space for the consumer to acknowledge his receipt of this notice. This notice requirement shall be deemed satisfied if this written notice appears in materials furnished to a consumer during the enrollment process into a master rental agreement. This notice provision is deemed complied with for all consumers who have previously enrolled into a master rental agreement prior to August 28, 2004, and no further notice shall be required.

5. The car rental company shall provide a notice at the rental office in the form of a sign, placard, or brochure that informs the consumer of the following:

(1) The availability of collision damage waiver;

(2) The availability of car rental insurance;

(3) A statement that the purchase of collision damage waiver and/or car rental insurance is not required in order to rent.

­­The following language may be used to comply with the requirements of this section, but shall not be considered the exclusive language that may be used:

6. Car rental companies shall not place a hold against a consumer's credit limit or charge a consumer's credit card in a deceptive or unfair manner, and without full and complete disclosure of such practice.

7. The remedies for any violation by a car rental company of any provision of sections 407.730 to 407.735, or for any conduct, act, or practice prescribed by any provisions of sections 407.730 to 407.735, shall be injunctive relief and monetary damages in an amount not to exceed fifty dollars for each violation. The aggregate amount of monetary damages which may be assessed against a car rental company for violations of any provisions of sections 407.730 to 407.735, or for any conduct, act, or practice prescribed by any provisions of sections 407.730 to 407.735, shall not exceed the sum of one hundred thousand dollars in the aggregate during any calendar year.

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(L. 1989 H.B. 893 § 3, A.L. 2003 S.B. 207, A.L. 2004 H.B. 1285 merged with S.B. 1233, et al.)