As you may well know, last year in Illinois, the Alliance of Automotive Service Providers of Illinois (AASPI) drafted, lobbied for and followed through to enactment a comprehensive law entitled the Automotive Collision Repair Act. The effort was made to clarify the complex relationships with which consumers are faced when having their damaged vehicle repaired. It was drafted with the assistance of the Chief Assistant Attorney General of the Consumer Fraud Bureau.
The bill went unanimously through the Senate and was amended to suit the desires of the Attorney General in House, where it passed again unanimously. From there, it went back to the Senate, where it achieved “concurrence.” Finally, the governor signed it, and it became law on Jan. 1, 2004.
Basically the law says: “Hey collision repairers! Heads up! This is a reminder. You work for consumers. You never did not work for consumers. These are the rules by which you must play. Do it or face consequences.”
But the story doesn’t end there …
At our AASPI convention in Oct. 2003 during the part of the program dealing with the new act and compliance, certain operators voiced their concerns about the new law. Their problem was simple: Now, being fully aware of the law, they realized and commented publicly that they couldn’t possibly satisfy the “requirements” of their DRP contracts and also be within the law.
They actually stood up and said this.
For their benefit, it was pointed out that the language of the “new” law was an assembly of current language that already applied to repairers in this state, coupled with some new language that packaged it for the benefit of consumers and shops alike. Therefore, upon its passage, the new law didn’t make what they were doing illegal; most of what they were concerned about was already illegal.
Unfortunately, the complexity of the relationships in our industry has led many under a veil of ignorance with regard to general business practices and how they play against common consumer-fraud statutes. To that issue, the “new” act is an effort to make these issues clear for all involved.
In the next legislative session after passage, it was brought to our attention by the membership that some amendments had been offered to our law. We accessed and printed out the proposed changes immediately and made two phone calls.
One was to the attorney general to say, “Uh, hey, those are not ‘our’ amendments – just wanted to make sure you knew we weren’t pulling a ‘bait and switch on you.’ ” The AG was grateful for our vigilance.
Next we called the senator who was our original bill sponsor and who was introducing the amendatory language. We notified his office that we were greatly concerned about the proposed amendments.
The senator’s office, however, was working under the assumption that the amendatory language was an association-supported action. We assured him that AASPI was not in support, and he agreed to hold the bill until AASPI officially requested action on it.
At this point, we speculated who may be behind this amendment and started calling around. Mark Pierson, past president of AASPI and an author of the Act, had a hunch. He called the operator he thought was responsible and asked what she knew about the situation.
“How did you know it was me!?” she replied.
Mark’s reply was essentially, “I guess we didn’t, until now.”
Turns out this shop owner – who we’ll call Sally – had spoken to the senator about the possibility of amending the law but was unaware of any actual amendments offered.
The first set of proposed amendments is a matter of public record and can be found at the Illinois Legislative Web site under sb2905 or by entering the following text in your browser bar and clicking the “go” button:
The first set of changes, among other things, proposed to strike language from the law that clearly defined certain things as illegal, such as charging the consumer for parts not installed and labor operations not performed (as though striking the language would somehow negate the fact that such things are consumer fraud).
Also stricken was the language that provided consumers their options with regard to the repair contract that binds the shop to the consumer. Stricken was the language prohibiting false and misleading advertising, prohibiting the unauthorized operation of the consumer’s vehicle, retaining duplicative payment (double charging), misrepresenting the terms of a warranty, altering a motor vehicle to a condition that requires repair and charging for repairs not authorized by the consumer.
Also stricken was the language that provided the definitions of a “reasonable basis” for repairs, which could be any one of the following: consistency with specifications established by law or the motor vehicle manufacturer that the repair is in accordance with usual and customary practices; that the repair is at the request of the consumer no matter what the manufacturer or general trade practices say; that the repair is at the request of the consumer.
Soon after more inquiries and a meeting with the senator, AASPI received a copy of an e-mail that presented the second set of proposed changes, which were accompanied by this quote: “ASA [the Automotive Service Association, a national association out of Dallas, Texas] has reviewed the bill and is willing to offer broad based support if needed.” The e-mail was written by the shop operator whom Pierson had spoken to and was cc’d to three people, two of them in ASA.
The second set of proposed changes only made it to the e-mail and was never offered by the senator as an actual amendment. The language in this second set proposed changes that were much more sweeping (if that could be imagined). The amendatory language attached to the e-mail actually called to change even the name of the law. The “Illinois Automotive Collision Repair Act” would become the “Automotive Physical Damage Appraisal Act.”
These changes – which were supposedly supported by ASA – negate even more rights of the consumer with regard to notifications, documentation and authorizations.
Soon after all this, I called Ron Pyle at ASA, and he assured me that ASA supported fully the current Illinois Automotive Collision Repair Act as good for both consumers and shops. “We don’t even have a collision unit in Illinois,” he said. “Besides, we know that if we are going to get anywhere in Illinois, we will have to work with and through the AASPI.”
Pyle expressed to me that he had a conversation with Sally at NACE and that she had commented that she intended to mount a challenge to the law. Pyle said he encouraged her to work through the AASPI to address any concerns she may have, pointing out to her that the AASPI had the wherewithal to actually draft legislation into law and that they’d probably be the people to talk to if you intended to amend it (and their language).
I told Ron that I appreciate the effort but that it seems Sally has promised the support of the ASA in writing to her senator – who happened to be the sponsor of the original bill. Pyle assured me that was not the case but that he’d check it out with both of his staff members who were cc’d on the correspondence and get back to me.
He did as promised. Ultimately, it turned out that there had been conversations between the two ASA people who were cc’d and Sally. But, never did ASA offer or suggest language modifications to the Act – much less promise the broad-based support mentioned in Sally’s correspondence.
As two entirely different sets of language were crafted as amendments to the Act, it’s hard to conceive that Sally was alone in her effort. The question is: Who assisted her? Who crafted the language – especially the second set of language – that cut out the consumer?
We may have a clue in the reaction of the Chief of the Consumer Fraud Bureau of the Illinois Attorney General’s office, who described the changes something like this: This bill cuts the consumer completely out of the loop in the repair of their car. This is just an insurance bill.
She indicated that her legislative people would “not like the bill.”
After we reviewed the proposed changes, we consulted with the senator at his request and noted that the amendatory language was not acceptable; we further noted the opinion of the AG, and the Senator let die any proposed changes before it saw another committee.
Attempts were made by AASPI board members, before, during and after session to contact Sally via phone and cell phone to better understand her position on this matter. Messages left, however, were not returned.
An industry reporter later offered me insight after having had a discussion with Sally at a Collision Industry Conference (CIC) meeting. That person wrote, “I had a chat with [Sally] about her aborted effort to amend your new regulations. She said she wanted to protect DRPs. She had just delivered a speech about how she’s focused on the consumers. She chided the Brits for caving to total approved repair programs. I told her she speaks out of both sides of her mouth. I said she can’t have it both ways. DRPs are not pro consumer. She continued to defend herself. I said, ‘Your efforts failed, and you pissed off a lot of people in Illinois.’ ”
The Automotive Collision Repair Act was designed specifically to level the playing field in Illinois. It requires that the shop recognize its responsibility to the consumer and treat that contract as prime. It requires repairers to write estimates of repair that are as nearly complete as is practicable. A pattern or practice of underestimating repairs violates the act.
Shops facing DRP “requirements” that they not write certain operations or parts on “original estimates” or that they not write those items at all have an obligation to their consumers to point out to the insurer that the activity is illegal and that the shop will not engage in such practices. Engaging in such behavior under an agreement or contract to an entity outside of the repair contract (insurer or independent adjuster) is a civil conspiracy to violate the Act.
In short, insurer “guidelines” applied by repairers to estimating or repairs are effectively illegal.
One very smart DRP repairer with whom I spoke said this about the Act: “It’s great for me, I get the work sent my way and can point to the Act whenever [the insurers] question me about why I wrote it or repaired it a certain way. I have to write everything I think it needs, and if they want to throw me off of their program for complying with the law, let them. I’m pretty sure one letter to the AG would solve that problem.”
Exactly. As long as the repairs meet any one of the four definitions of reasonability described by the Act.
“A reasonable basis includes:
(i) that the repair service is consistent with specifications established by law or the manufacturer of the motor vehicle, component or part;
(ii) that the repair is in accordance with usual and customary practices;
(iii) that the repair was performed at the specific request of the consumer after the recommendation is not in accordance with manufacturer or accepted trade practices; or
(iv) that the repair is at the consumer’s request.”
I think we can live with that.
Writer Wade Ebert, 38, is a second-generation collision shop owner. “What I thought would be the easy part, the least complex – learning to run the business – turned out to be anything but. Aside from the tremendous technology now involved, what should be as common sensical as selling plumbing supplies or light fixtures has been manipulated by outside forces so that it is now unnecessarily complex to both business owners and the consumer. Our industry needs to get back to selling legitimate services and products to the people who turn the keys in the ignition.”