As used in Chapter 57, Article 16 NMSA 1978:
A. "current price" means an amount equal to the price listed in the manufacturer's or distributor's printed price list in effect when the franchise is terminated, less applicable trade and cash discounts;
B. "dealer cost" means an amount equal to the sum of the original invoice price that the dealer paid for inventory and the cost of the delivery of the inventory from the manufacturer or distributor to the dealer, less applicable discounts;
C. "designated family member" means a spouse, child, grandchild, parent, brother or sister of a deceased or incapacitated dealer who is entitled to inherit the dealer's ownership interest in the dealership under the terms of a will or the laws of intestate succession in this state. In the case of an incapacitated dealer, the term means the person appointed by a court as the legal representative of the dealer's property. The term also includes the appointed and qualified personal representative and the testamentary trustee of a deceased dealer. However, the term shall be limited to mean only that individual designated by a dealer in a written document filed with the manufacturer, distributor or representative in the event that such a document has been filed;
D. "distributor" means any person who distributes or sells new or used motor vehicles to dealers and who is not a manufacturer;
E. "do not drive order" means a notice advising a motor vehicle dealer or an owner of a motor vehicle not to drive the vehicle until the vehicle has been repaired because the vehicle has a safety defect, fails to comply with a federal motor vehicle safety standard or fails to comply with a federal requirement;
F. "former franchisee":
(1) means a dealer that has entered into a franchise agreement with a manufacturer and that has:
(a) entered into a termination agreement or deferred termination agreement with the manufacturer related to the franchise; or
(b) has had the franchise canceled, terminated or otherwise ended; and
(2) includes the designated successor of the former franchisee in the event the former franchisee is deceased or disabled;
G. "franchise" means an oral or written arrangement for a definite or indefinite period in which a manufacturer, distributor or representative grants to a motor vehicle dealer a license to use a trade name, service mark or related characteristic and in which there is a community of interest in the marketing of motor vehicles or services related to marketing, service or repair of motor vehicles at wholesale, retail, leasing or otherwise;
H. "fraud" includes, in addition to its normal legal connotation, the following:
(1) a misrepresentation in any manner, whether intentionally false or due to gross negligence, of a material fact;
(2) a promise or representation not made honestly and in good faith; and
(3) an intentional failure to disclose a material fact;
I. "inventory" means new or unused motorcycles, motor vehicles, motorcycle attachments and motorcycle and motor vehicle repair parts that are provided by a manufacturer or distributor to a dealer under a franchise agreement and that are purchased within thirty-six months of the termination of the franchise or are listed in the manufacturer's or distributor's current sales manual or price list at the time that the franchise is terminated;
J. "manufacturer" means any person who manufactures or assembles new motor vehicles either within or outside of this state and may include a predecessor manufacturer or a successor manufacturer;
K. "motorcycle" means any motor vehicle used on or off a public highway that has an unladen weight of less than one thousand five hundred pounds;
L. "motor vehicle" means every self-propelled vehicle, having two or more wheels, by which a person or property may be transported on a public highway and includes recreational vehicles;
M. "motor vehicle dealer" or "dealer" means a person who sells or solicits or advertises the sale of new or used motor vehicles and is licensed as a dealer pursuant to the Motor Vehicle Code [Chapter 66, Articles 1 to 8 NMSA 1978]. "Motor vehicle dealer" or "dealer" shall not include:
(1) receivers, trustees, administrators, executors, guardians or other persons appointed by or acting under judgment, decree or order of any court;
(2) public officers while performing their duties as such officers;
(3) persons making casual sales of their own vehicles duly registered and licensed to them by the state; or
(4) finance companies, banks and other lending institutions covering sales of repossessed vehicles;
N. "person" means every natural person, partnership, corporation, association, trust, estate or any other legal entity;
O. "predecessor manufacturer" means a manufacturer that is acquired, succeeded by or assumed by a successor manufacturer;
P. "prospective purchaser" means a person who has a bona fide written agreement to purchase a franchise;
Q. "recall claim" includes a claim for reimbursement for the parts and labor required for a dealer to repair a motor vehicle subject to a do not drive order or stop sale order;
R. "recreational vehicle" means any motor vehicle with a camping body that either has its own motive power or is drawn by another vehicle;
S. "relevant market area" means an area of a size specified in this subsection around an existing motor vehicle dealer's place of business. The size of the area shall be the greater of the area of responsibility specified in the dealer's franchise or a circle with a center at the dealer's place of business and a radius of:
(1) seven miles, if the population of the county in which the dealership is located is two hundred fifty thousand or more;
(2) fifteen miles, if the population of the county in which the dealership is located is less than two hundred fifty thousand but is thirty-five thousand or more; or
(3) twenty miles in all other cases.
If the existing and proposed dealerships are in different counties, the lesser of the applicable mileage limitations shall be used. For purposes of this subsection, the population of any area shall be determined in accordance with the most recent decennial census or the most recent population update from the national planning data corporation or other similar recognized source, whichever is later;
T. "representative" means any person who is or acts as an agent, employee or representative of a manufacturer or distributor and who performs any duties in this state relating to promoting the distribution or sale of new or used motor vehicles or contacts dealers in this state on behalf of a manufacturer or distributor;
U. "sale" includes:
(1) the issuance, transfer, agreement for transfer, exchange, pledge, hypothecation or mortgage in any form, whether by transfer in trust or otherwise, of any motor vehicle or interest therein or of any franchise related thereto; and
(2) any option, subscription or other contract or solicitation looking to a sale or offer or attempt to sell in any form, whether spoken or written. A gift or delivery of any motor vehicle or franchise with respect thereto with, or as, a bonus on account of the sale of anything shall be deemed a sale of such motor vehicle or franchise;
V. "stop sale order" means a notice prohibiting a motor vehicle dealer from leasing or selling and delivering at wholesale or retail a used motor vehicle in the inventory of the dealer until the vehicle has been repaired because the vehicle has a safety defect, fails to comply with a federal motor vehicle safety standard or fails to comply with a federal requirement;
W. "successor manufacturer" means a motor vehicle manufacturer that, on or after January 1, 2010, acquires, succeeds to or assumes any part of the business of a predecessor manufacturer as the result of:
(1) a change in ownership, operation or control of the predecessor manufacturer;
(2) the termination, suspension or cessation of all or a part of the business operation of the predecessor manufacturer;
(3) the discontinuance of the sale of a product line; or
(4) a change in the distribution system by the predecessor manufacturer, whether through a change in distributor or the predecessor manufacturer's decision to cease conducting business through a distributor; and
X. "value of the used motor vehicle" means the average trade-in value indicated in an independent third party guide for a used motor vehicle of the same year, make and model.
History: 1953 Comp., § 64-37-3, enacted by Laws 1973, ch. 6, § 3; 1977, ch. 100, § 1; 1985, ch. 213, § 1; 1991, ch. 49, § 1; 1995, ch. 19, § 1; 1997, ch. 31, § 1; 2010, ch. 38, § 1; 2010, ch. 40, § 1; 2018, ch. 28, § 1.
ANNOTATIONSThe 2018 amendment, effective March 1, 2018, reorganized the section, placing the definitions in alphabetical order, added definitions for "do not drive order", "recall claim", "stop sale order", and "value of the used motor vehicle"; and deleted former Subsections A through T and added new Subsections A through X.
The 2010 amendment, effective March 8, 2010, in Subsection E, after "within or outside of this state", added the remainder of the sentence; in Subsection M, in the fourth sentence, after "individual designated by", deleted "the motorcycle" and added "a"; in Subsection P, after "new or unused motorcycles", added "motor vehicles" and after "motorcycle attachments and", added "motorcycle and motor vehicle"; and added Subsections R, S and T.
Laws 2010, ch. 38, § 1 and Laws 2010, ch. 40, § 1 enacted identical amendments to this section. The section was set out as amended by Laws 2010, ch. 40, § 1. See 12-1-8 NMSA 1978.
The 1997 amendment, effective June 20, 1997, added Subsection D and redesignated the remaining subsections accordingly, inserted "service or repair" in Subsection H, made stylistic changes in Subsection O and in Subsection P, and added Subsection Q.
The 1995 amendment, effective July 1, 1996, added "and includes recreational vehicles" at the end of Subsection A; substituted "or" for "and" at the end of Paragraph B(3); inserted Subsection K; redesignated former Subsections K through N as Subsections L through O; and made stylistic changes.
The 1991 amendment, effective June 14, 1991 added Subsections L to N and made minor stylistic changes to subsection J.
Ad hoc approach to determine coverage of article approved. — There may be certain pieces of agricultural machinery which may be excepted from definition of motor vehicle and which must be evaluated on a case-by-case basis. Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.
Windrower is not "vehicle" or "motor vehicle". — A windrower, a piece of farm machinery used to mow, crimp and cut hay or other crops into rows to be picked up and compacted into bales, is not a "vehicle" or "motor vehicle" under Motor Vehicle Code, 66-1-1 NMSA 1978 et seq., and is similarly excluded from coverage under this article. Smith Mach. Corp. v. Hesston, Inc., 1985-NMSC-004, 102 N.M. 245, 694 P.2d 501.