STATUTE OF LIMITATIONS
- Personal Property10 YearsR.I.G.L. § 9-1-13(a)
- Personal Injury/Death3 YearsR.I.G.L. § 9-1-14 (b)
- Breach of Contract/Written10 YearsR.I.G.L. § 9-1-13(a)
- Breach of Contract/Oral10 YearsR.I.G.L. § 9-1-13(a)
- Breach of Contract/Sale of Goods4 YearsR.I.G.L. § 6A - 2-725
- Statute of Repose/Real Property10 YearsR.I.G.L. § 9-1-29*
- Statute of Repose/ProductsN/AN/A**
- Breach of Warranty/Personal Injury3 YearsR.I.G.L. § 9-1-14 (b)***
- Breach of Warranty/Personal Injury/Buyer-Seller Relationship4 YearsR.I.G.L. § 6A - 2-725
- Breach of Warranty/Property Damage10 YearsR.I.G.L. § 9-1-13(a)
- Workers’ Compensation3 YearsR.I.G.L. § 28-35-58
- Strict Product Liability/Personal Injury3 YearsR.I.G.L. § 9-1-14 (b)
- Strict Product Liability/Property Damage10 YearsR.I.G.L. § 9-1-13(a)
Statute of Limitations Exceptions
*10 Years from substantial completion of improvement to real property. R.I.G.L. §9-1-29.
**10 Year statute found unconstitutional. Kennedy v. Cumberland, 471 A.2d 195 (R.I. 1984).
***R.I.G.L. § 9-1-14 (b), unless a direct buyer-seller relationship exists. In that case, the U.C.C. 4 year SOL applies (Nappi v. John Deere & Co., 717 A.2d 650 (R.I. 1998).
Contributory Negligence/Comparative Fault
Pure Comparative Fault: Damaged parties can recover even if 99% at fault. Plaintiff’s negligence may be considered in his right to recovery. R.I.G.L. § 9-20-4.
Med Pay/PIP Subrogation
Med Pay: Yes. Subrogation allowed subject to pro-rata sharing of recovery costs. Jennings v. Nationwide Ins. Co., 669 A.2d 534 (R.I. 1996).
The three (3) year personal injury statute of limitations runs from the date of the insured’s accident. R.I.G.L. § 9-1-14(b).
PIP: Coverage not applicable.
Automobile: Pro-Rata. R.I. Code R. 11-5-73:7(C) (alternatively cited as R.I. A.D.C. § 02 030 073) provides: “Subrogation. An Insurer shall include first-party claimant’s deductible, if any, in subrogation demands. Upon settlement of subrogation claim, first-party claimant’s insurer shall pay its insured the full deductible or the amount collected if less than the full deductible, less the insured’s pro-rata share of subrogation expenses, if any. The subrogation expenses, as opposed to the insured’s deductible, are subject to pro rating based on percentage of fault.
Deductible must be included in any subrogation demand.
Property: Pro-Rata. R.I. Gen. Laws Ann. § 27-8-12 provides: “Whenever, through subrogation, an insurance company or its agent collects a casualty loss from a third party, that company or agent shall, from the funds collected, first pay to the insured the deductible portion of the casualty loss less the prorated share of subrogation expenses and only after this retain any funds in excess of the deductible portion of the recovery.” No specific requirement to include deductible in demand but the insured must be reimbursed pro-rata any net recovery.
No specific requirement to include deductible in demand but must reimburse insured pro-rata any net recovery.
Made Whole Doctrine
The Made Whole Doctrine was first applied in Rhode Island in 1981 in the context of auto insurers’ claims for a share in the proceeds of a safety responsibility bond obtained by the uninsured motorist tortfeasor. Lombardi v. Merchants Mut. Ins. Co., 429 A.2d 1290 (R.I. 1981); Ditomasso v. Ocean State Physicians Health Plan, Inc., No. 87-2487, 1988 WL 1016798 (R.I. Super. 1988) (distinguishing Lombardi and holding that insured has enforceable right to subrogation where the language of the contract regarding subrogation is clear and unambiguous). In Lombardi, the Supreme Court of Rhode Island concluded that the right of subrogation did not arise until the insured had received full compensation. Lombardi, however, was subsequently distinguished by the lower state court in Ditomasso. Therein the Court found an unambiguous subrogation provision which displaced the Made Whole Rule enforceable. According to the court in Ditomasso:
Lombardi is inapplicable to and distinguishable from the case at bar. First, Lombardi addressed the issue of subrogation rights as applicable to general liability insurers. Here, the defendant is a health insurer. Second, the Court in Lombardi held that the defendant insurance companies subrogation rights did not arise until the plaintiffs had received full satisfaction of the judgment against the uninsured. Plaintiff in the instant matter has not received a judgment from any court but rather has been paid $ 25,000 (the policy limit) from her uninsured motorist coverage. Lombardi, supra.
Although the Supreme Court in Lombardi applied the Made Whole Doctrine and rejected the auto insurers’ claims for a share in the proceeds of a safety responsibility bond obtained by the uninsured motorist tortfeasor unless the insureds’ loss (stated in their judgment against the tortfeasor), was fully paid, the application of the Made Whole Doctrine in that case appears to be limited to motor vehicle accidents and common law principles of surety. The victim in Lombardi obtained a $32,000 judgment against the wrongdoer. Two insurance companies had each paid the victim $10,000. The companies sought recovery of the funds they had advanced out of a $10,000 bond posted by the wrongdoer to secure the judgment. The Court, citing Justice Cardozo, reiterated the principle that a surety is liable only for part of the debt that does not become subrogated to collateral or to remedies available to the creditor unless he pays the whole debt or it is otherwise satisfied. Lombardi, (quoting American Surety Co. v. Westinghouse Electric Mfg. Co., 296 U.S. 133, 137, 56 S.Ct. 9, 11, 80 L.Ed. 105 (1935) (Cardozo, J.)). Thus, Lombardi concluded, the insurance company was not subrogated to the victim’s right until the “total judgment was satisfied.”
Rhode Island appears to disallow contractual limitations or subrogation provisions that curtail an insured’s recovery where the insured has not recovered the amount of his/her actual loss. DiTata v. Aetna Cas. and Sur. Co., 542 A.2d 245 (R.I. 1988).
Economic Loss Doctrine
Intermediate Rule (not well defined). Rhode Island holds that if a defendant owes a duty of care to a third party that arises out of an existing contract, and the party to whom the duty is owed is injured, the injured party may bring a negligence action against the defendant even though the damages are purely economic. Rousseau v. K.N. Constr., Inc., 727 N.E.2d 190 (R.I. 1999). The ELD bars plaintiffs from “recovering purely economic losses in a negligence cause of action.” Boston Investment Property #1 State v. E.W. Burman, Inc., 658 A.2d 515 (R.I. 1995). Economic loss is defined as “costs associated with repair and-or replacement of a defective product, or loss of profits consequent thereto.” Hart Eng’g Co. v. FMC Corp., 593 F.Supp. 1471 (D. R.I. 1984). An exception exists for consumer transactions. Franklin Grove Corp. v. Drexel, 936 A.2d 1272 (R.I. 2007).
A tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. 56 Assocs. v. Frieband, 89 F.Supp.2d 189, 194 (D. R.I. 2000) (subrogation allowed where lease did not address question of fire insurance).
Tort of Spoliation: Neither the Rhode Island legislature or the courts have yet established or recognized the existence of an independent tort for spoliation of evidence. Malinowski v. Documented Vehicle/Drivers Sys., Inc., 66 Fed. Appx. 216, 222 (R.I. 2003).
Adverse Inference: Rhode Island does recognize that an adverse inference may be given as spoliation of evidence instruction. Mead v. Papa Razzi Restaurant, 840 A.2d 1103, 1108 (R.I. 2004). The party seeking the spoliation of evidence has the burden of proof to establish that the destruction of evidence was deliberate or negligent. Malinowski v. United Parcel Serv., 792 A.2d 50, 54-55 (R.I. 2002). Furthermore, it is not necessary to show bad faith by the spoliator to draw the adverse inference, however bad faith may strengthen the spoliation inference. Kurczy v. St. Joseph’s Veterans Ass’n, Inc., 820 A.2d 929, 946 (R.I. 2003). A court will not allow a subrogated carrier to lose or destroy evidence, whether recklessly or intentionally, and then later bring a claim for subrogation, forcing a defendant to defend its case without the opportunity to have its expert examine and offer a competing opinion on the evidence. Amica Mutual Ins. Co. v. Brasscraft, 2018 WL 2433560 (D. R.I. 2018).
Willful Misconduct. Joint and several liability imposed on parents when child willfully or maliciously causes damages to property or injury to another person. R.I.G.L. § 9-1-3.
Minor’s Driving. Any negligence by a minor while driving a motor vehicle will be imputed to the parent/adult who signed their drivers’ license application, and they will be jointly and severally liable. R.I.G.L. § 31-10-15.
The limit of liability is 1,500.00. Child must be under 18-years-old.
Pure Joint and Several Liability. Joint and Several Liability – plaintiff may recover full amount of damages from any one tortfeasor. R.I.G.I. § 10-6-2.
Contribution among joint tortfeasors allowed in underlying action or separate action. R.I.G.I. § 10-6-3; Hawkins v. Gadoury, 713 A.2d 799 (R.I. 1998). One year statute of limitations after judgment or settlement. R.I.G.I § 10-6-4.
Suspension of Drivers' Licenses
Administrative Suspension: A driver’s license will be suspended if individual fails to maintain the appropriate insurance coverage. R.I.G.L. § 31-10-38.
Judgment: The Division will immediately suspend the license of the judgment debtor. R.I.G.L. § 31-32-10. Suspension remains until the judgment is stayed or satisfied, and the debtor provides proof of financial responsibility. Suspension will be lifted in three years. R.I.G.L. § 31-32-14.
Contact Information: State of Rhode Island, Department of Revenue, Division of Motor Vehicles, Accident Division, 600 New London Avenue, Cranston, RI 02920-3024, (401) 462-4368, http://www.dmv.ri.gov/.
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. R.I. Gen. Law § 6-34-1.
Not applicable to purchasing insurance for an entity’s protection, or to construction bonds.
Diminution of Value
First Party: A Rhode Island Superior Court denied an insurer’s summary judgment as to diminution in value in a case addressing policy language, finding that an ambiguity existed as to whether or not “the cost of repair or replace the property with other of like kind and quality” includes damages for the inherent diminished value of an auto resulting from the vehicle being in an accident. The Court held where a dispute existed with respect to the parties’ intent, there existed a genuine issue of material fact that must be resolved by the jury. Cazabat v. Metropolitan Property & Casualty Ins. Co., 2000 WL 1910089 (R.I. Super. Ct. 2000).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. An individual may also disclose the content of any electronic or in-person communication that is common knowledge or public information. R.I. Gen. Laws Ann. § 11-35-21; R.I. Gen. Laws Ann. § 12-5.1-1.
Rhode Island case law allows for recovery of restitution by a “victim” against a liable criminal defendant. State v. Traudt, 679 A.2d 330 (R.I. 1996). In addition, restitution may be awarded by a judge in a family court matter, per the applicable Rhode Island statute. R.I.G.L. § 12‐19‐33. Despite the availability of restitution awards, neither case law nor statutes have made a decision on criminal restitution being available to and insurer.
Health and Disability Insurance
Statute of Limitations: 3 Years. R.I.G.L. § 9-1-14(b).
Subrogation of Medical and Disability Benefits are allowed. Ditomasso v. Ocean State Physicians Health Plan, Inc., 1988 WL 1016798 (R.I. Super 1988). Made Whole does not apply. Ditomasso v. Ocean State Physicians Health Plan, Inc., 1988 WL 1016798 (R.I. Super 1988). Common Fund applies. Jennings v. Nationwide Ins. Co., 669 A.2d 534, 536 (R.I. 1996) (but only to extent of benefit provided by plaintiff’s attorney).
Funeral Procession Traffic Laws
Rhode Island law provides that funeral processions have the right-of-way, including through intersections when the lead car has lawfully entered it. Exceptions to the procession’s right-of-way through intersections are when vehicles are otherwise directed by law enforcement, or if an authorized emergency vehicle is approaching. R.I. Gen. Laws § 31-52-4. Drivers not in a funeral procession may not drive between vehicles in the procession or enter an intersection when a procession is passing through, even if the traffic signal indicates to do so. R.I. Gen. Laws § 31-52-5.
Statute of Limitations: 3 Years. R.I.G.L. § 28-35-58.
Can Carrier Sue Third Party Directly: Yes, if notice given 26 weeks before the 2 year, 8 months anniversary of accident. A carrier can sue after 2 year, 8 months date.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: None.
Employer Contribution/Negligence: None, first money reimbursed.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will be held liable for all damages unless the dog was confined. If a dog owner is found liable for bite-damages a second time, the damages will be doubled. R.I. Gen. Laws § 4-13-16.
Employee Leasing Laws
Rhode Island case law has held that an employee leasing company remains the employer of a leased employee as long as the employer remains on the general employer’s payroll, but the employee leasing company and the client company are both considered employers for purposes of the Exclusive Remedy Rule. Sorenson v. Colibri Corp., 650 A.2d 125 (R.I. 1994).
Condominium Waiver of Subrogation Laws
Associations shall maintain property insurance and general liability insurance on the common elements. Additionally, the insurance policy must waive its rights to subrogation against unit owners and members of their household. R.I.G.L. § 34-36.1-3.13 (1956).
Automobile Total Loss Thresholds
Total Loss Formula (See HERE for definition).
Insurer decides if a vehicle is totaled, there are two classifications, A and B. A is the vehicle is good for parts only and B is the vehicle is repairable. R.I.G.L. § 31-46-1.1.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense. When the driver of an automobile is confronted with an unforeseeable emergency condition not caused by his own negligence. Pazienza v. Reader, 717 A.2d 644 (R.I. 1998); Malinowski v. United Parcel Serv., Inc., 727 A.2d 194 (R.I. 1999).
No cases using the sudden emergency defense for a medical emergency.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Governmental Tort Liability Act. R.I.G.L. § 9-31-1 (1970).
State liable for all actions of tort in the same manner as a private individual or corporation unless exception. R.I.G.L. § 9-31-1.
Notice Deadlines: Three year statute of limitation for any action against State. R.I.G.L. § 9-1-25. Notice of Claim must be given within three years from the date the cause of action accrues. R.I.G.L. § 9-1-25.
Claims/Actions Allowed: State’s sovereign immunity as to tort actions and its 11th Amendment immunity both waived. Laird v. Chrysler, 460 A.2d 425 (R.I. 1983). Does not apply to proceedings against State before administrative agencies.
Comments/Exceptions: There are few conditions on the State’s consent to suit. Marrapese v. State, 500 F.Supp. 1207 (D. R.I. 1980).
Damage Caps: Damages may not exceed $100,000. R.I.G.L. § 9-31-2 (West). Limit not applicable if State was engaged in a proprietary function or has agreed to indemnify the federal government or any agency. R.I.G.L. § 9-31-3. State must secure $75 million insurance policy covering operation of commuter rail service. R.I.G.L. § 9-31-3.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: When the policy provides for the adjustment and settlement of first-party total losses, the Insurer may (1) offer a replacement of like kind and quality including all applicable taxes, license fees, or other fees, or (2) offer a cash settlement based on the ACV of a comparable vehicle including all applicable taxes, license fees, or other fees. R.I. Code R. § 11-5-73:8.
Third-Party Claims: R.I. Code R. § 11-5-73:3 defines “claimant” as a first-party claimant, a third-party claimant, or both. “In order to fully compensate for the loss to the consumer, the insurer must include applicable sales tax in its calculation of settlement value in any total loss claim.”
Damage to Property Without Market Value
Service Value: “… by reason of the unique or peculiar character of the property taken, no market for it exists, the depreciated reproduction cost approach is proper.” Trustees of Grace and Hope Mission of Baltimore City, Inc. v. Providence Redevelopment Agency, 217 A.2d 476 (R.I. 1966).
Intrinsic Value: “… instead of adhering to the before and after market values as the rule of damages, … permit recovery of the actual value to the owner of the thing lost or damaged, excluding, of course, any fanciful or sentimental value that might be placed upon it.” De Spirito v. Briostol County Water Co., 227 A.2d 782 (R.I. 1967).
Sentimental Value : “… instead of adhering to the before and after market values as the rule of damages… permit recovery of the actual value to the owner of the thing lost or damaged, excluding, of course, any fanciful or sentimental value that might be placed upon it.” De Spirito v. Briostol County Water Co., 227 A.2d 782 (R.I. 1967).
Municipal/County/Local Governmental Immunity and Tort Liability
Governmental Tort Liability Act: R.I.G.L. § 9-31-1 (1970). State and all political subdivisions are liable for all actions of tort in the same manner as a private individual or corporation unless exception in statute. R.I.G.L. § 9-31-1.
Notice Deadlines: Three (3) year statute of limitation for any action against State. R.I.G.L. § 9-1-25. Notice of Claim must be given within three (3) years from the date the cause of action accrues. R.I.G.L. § 9-1-25.
Claims/Actions Allowed: Can sue for operation of motor vehicle. Catone v. Medberry, 555 A.2d 328 (R.I. 1989). Former distinction between proprietary and governmental functions no longer is either controlling or of significant assistance in determining liability of municipality (except within public duty doctrine). O’Brien v. State, 555 A.2d 334 (R.I. 1989), holding modified by Verity v. Danti, 585 A.2d 65 (R.I. 1991).
Comments/Exceptions: There are few conditions on the State’s consent to suit. Marrapese v. State, 500 F. Supp. 1207 (D. R.I. 1980). The public duty doctrine grants immunity to government entities and employees engaging in uniquely governmental (discretionary) functions involving policy decisions or not ordinarily performed by private individuals. Two exceptions: (1) Special duty (i.e., proprietary acts such as driving car, or removing snow from walkway); and (2) Egregious conduct. Bierman v. Shookster, 590 A.2d 402 (R.I. 1991).
Damage Caps: Damages may not exceed $100,000. R.I.G.L. § 9-31-3. Limit not applicable if political subdivision was engaged in a proprietary function or has agreed to indemnify the federal government or any agency. R.I.G.L. § 9-31-3.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Drivers under the age of 18 may not operate cell phones in any capacity, unless it is an emergency situation. R.I.G.L. § 31-22-11.9.
No person while operating a motor vehicle may compose, read, or send a text message. Exceptions are allowed for hands-free operation and emergency situations. R.I.G.L. § 31-22-30.
Other Prohibitions: Headsets, remote microphones, earpieces are allowed to be used while driving if it makes a cell device “hands-free.” R.I.G.L. § 31-22-30(2).
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute does not mention or make note of “aliens” as well as “legal” or “illegal” status. R.I. Gen. Laws § 28-29-4.
Case Law: Villa v. Eastern Wire Prods. Co., 554 A.2d 644 (R.I. 1989).
Comments/Explanation/Other: *Villa overturned a decision denying benefits to an undocumented worker who fraudulently obtained work with false papers and identification. The court reasoned a bias against how someone entered the country cannot be used against whether they receive benefits or not.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: RI R. Evid. Art. VII, Rule 702
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is imputed to owner because § 31-33-6 deems the owner to be the “agent” of the owner, even if accident is outside of agency authority. Exception is where driver has proof of insurance. R.I.G.L. § 31-33-6; Davis Pontiac Co. v. Sirois, 105 A.2d 792 (R.I. 1954).
If driver has provided statement of financial responsibility to Rhode Island’s Registry of Motor Vehicles, the owner of the vehicle cannot be held responsible for injuries the driver causes. Oliveira v. Lombardi, 794 A.2d 453 (R.I. 2002) Merely telling the vehicle’s owner you have insurance is not enough. Ortiz v. Golini, (R.I. Super., Jul. 12, 2005) (No. PC 04-3275).
Vicarious Liability/Family Purpose Doctrine: No Family Purpose Doctrine.
Owners and lessees are vicariously liable for the negligence of drivers who operate their vehicles with their consent, and in the case of an accident the driver is deemed the “agent” of the owner, unless the driver has posted his own proof of financial responsibility prior to an accident. R.I.G.L. § 31-33-6.
Rental vehicles are governed by R.I.G.L. § 31-34-4, which places different restrictions upon rental vehicle owners.
Sponsor Liability for Minor’s Driving: R.I.G.L § 31-10-15: Any negligence by a minor while driving a motor vehicle will be imputed to the parent/adult who signed their drivers’ license application, and they will be jointly and severally liable.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. R.I.G.L. § 9-1-14(b). Discovery
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Comparative. R.I.G.L. § 9-20-4.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Yes.
Innocent Seller Statute: No.
Joint and Several Liability: Yes. R.I.G.L. § 10-6-2.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Government Contractor Defense; Presumption; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 2nd
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: R.I.G.L. § 31-22-1.
Common Law Rule: Leaving the keys in the car is not a concurring proximate cause of injuries sustained by a third party. Keefe v. McArdle, 109 R.I. 90, 280 A.2d 328 (1971); Clements v. Tashjoin, 168 A.2d 472 (R.I. 1961).
The ASR has not yet been embraced by Rhode Island courts. Nationwide Property & Cas. Ins. Co. v. D.F. Pepper Constr., Inc., 59 A.3d 106 (R.I. 2013). A federal court applying Rhode Island law held that if an insurer has paid a loss to one of the insureds under its policy, it cannot subrogate against another party for whose benefit the insurance was written even if the latter’s negligence caused said loss, if there had been no design or fraud on his part. New Amsterdam Cas. Co. v. Homans-Kohler, Inc., 310 F.Supp. 374 (D. R.I. 1970). In D.F. Pepper Const., Inc., Pepper is the sole owner and shareholder of D.F. Pepper Construction (“DFP”). Pepper, while driving a dump truck owned by DFP and insured by Merchants Mutual Insurance Company (“Merchant”), hit a patch of black ice and crashed into his own home that was insured by Nationwide Property and Casualty Insurance (“Nationwide”). Nationwide paid for the damages to the home and then sought to subrogate against DFP. The trial judge ruled that the ASR was not invoked as Pepper and DFP were distinct legal entities. On appeal, DFP argued that the trial court erred in finding that the ASR was not invoked because Nationwide subrogating against DFP would result in Merchant paying Nationwide and then subrogating Pepper for the damages that Merchant would have to pay to Nationwide. Meaning that if Nationwide subrogated against DFP, Nationwide would also be indirectly subrogating against their insured, Pepper. The appeals court agreed with the trial court that the ASR was not invoked in this case, and that the appropriate time to raise the ASR in court would not be until Merchant attempted to subrogate against Pepper.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: R.I.G.L. § 27-10.2-1 to 27-10.2-3; R.I.G.L. § 5-38-29.
Summary: Insurers who specify the use of non-OEM parts must inform the insured of their intent in writing. Additionally, the repair shop must receive written consent from the insured before they use any non-OEM parts. In negotiations between an insurer and a repair shop, the insurer may not require the use of non-OEM parts unless the repair shop has written consent from the insured that non-OEM parts may be used. The foregoing provisions only apply to vehicles that are less than 30 months past their date of manufacture. An insured whose vehicle is less than 30 months old may choose to have their insurer pay for the use of OEM parts or for the use of non-OEM parts. All non-OEM parts used in a repair must be itemized in the repair bill and they must be of equal quality to their OEM counterpart. Any non-OEM parts used must be of like kind and quality to their OEM equivalent