Senate Bill No. 21
(By Senator Chafin)
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[Introduced January 13, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section thirty-one, article six,
chapter thirty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
motor vehicle insurance policies; and providing option of
filing cause of action against a person's own insurer under
certain circumstances.
Be it enacted by the Legislature of West Virginia:
That section thirty-one, article six, chapter thirty-three
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 6. THE INSURANCE POLICY.
§33-6-31. Motor vehicle policy; omnibus clause; uninsured and
underinsured motorists' coverage; conditions for recovery under endorsement; rights and liabilities of insurer.
(a) No policy or contract of bodily injury liability
insurance, or of property damage liability insurance, covering
liability arising from the ownership, maintenance or use of any
motor vehicle, shall be issued or delivered in this state to the
owner of such the vehicle, or shall be issued or delivered by any
insurer licensed in this state upon any motor vehicle for which
a certificate of title has been issued by the division of motor
vehicles of this state, unless it shall contain a provision
insuring the named insured and any other person, except a bailee
for hire and any persons specifically excluded by any restrictive
endorsement attached to the policy, responsible for the use of or
using the motor vehicle with the consent, expressed or implied,
of the named insured or his or her spouse against liability for
death or bodily injury sustained or loss or damage occasioned
within the coverage of the policy or contract as a result of
negligence in the operation or use of such the
vehicle by the
named insured or by such person: Provided, That in any such
automobile liability insurance policy or contract, or endorsement thereto, if coverage resulting from the use of a nonowned
automobile is conditioned upon the consent of the owner of such
the
motor vehicle, the word "owner" shall be construed to include
the custodian of such nonowned motor vehicles. Notwithstanding
any other provision of this code, if the owner of a policy
receives a notice of cancellation pursuant to article six-a of
this chapter and the reason for the cancellation is a violation
of law by a person insured under the policy, said owner may by
restrictive endorsement specifically exclude the person who
violated the law and the restrictive endorsement shall be
effective in regard to the total liability coverage provided
under the policy, including coverage provided pursuant to the
mandatory liability requirements of section two, article four,
chapter seventeen-d of this code, but nothing in such restrictive
endorsement shall be construed to abrogate the "family purpose
doctrine".
(b) Nor shall any such policy or contract be so issued or
delivered unless it shall contain an endorsement or provisions
undertaking to pay the insured all sums which he or she shall be
legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits which shall be no
less than the requirements of section two, article four, chapter
seventeen-d of this code, as amended from time to time:
Provided, That such the
policy or contract shall provide an
option to the insured with appropriately adjusted premiums to pay
the insured all sums which he or she shall be legally entitled to
recover as damages from the owner or operator of an uninsured
motor vehicle up to an amount of one hundred thousand dollars
because of bodily injury to or death of one person in any one
accident and, subject to said the limit for one person, in the
amount of three hundred thousand dollars because of bodily injury
to or death of two or more persons in any one accident and in the
amount of fifty thousand dollars because of injury to or
destruction of property of others in any one accident: Provided,
however, That such the
endorsement or provisions may exclude the
first three hundred dollars of property damage resulting from the
negligence of an uninsured motorist: Provided further, That such
the
policy or contract shall provide an option to the insured
with appropriately adjusted premiums to pay the insured all sums
which he or she shall legally be entitled to recover as damages from the owner or operator of an uninsured or underinsured motor
vehicle up to an amount not less than limits of bodily injury
liability insurance and property damage liability insurance
purchased by the insured without setoff against the insured's
policy or any other policy. Regardless of whether motor vehicle
coverage is offered and provided to an insured through a multiple
vehicle insurance policy or contract, or in separate single
vehicle insurance policies or contracts, no insurer or insurance
company providing a bargained for discount for multiple motor
vehicles with respect to underinsured motor vehicle coverage
shall be treated differently from any other insurer or insurance
company utilizing a single insurance policy or contract for
multiple covered vehicles for purposes of determining the total
amount of coverage available to an insured. "Underinsured motor
vehicle" means a motor vehicle with respect to the ownership,
operation or use of which there is liability insurance applicable
at the time of the accident, but the limits of that insurance are
either: (i) Less than limits the insured carried for
underinsured motorists' coverage; or (ii) has been reduced by
payments to others injured in the accident to limits less than limits the insured carried for underinsured motorists' coverage.
No sums payable as a result of underinsured motorists' coverage
shall be reduced by payments made under the insured's policy or
any other policy.
(c) As used in this section, the term "bodily injury" shall
include death resulting therefrom and the term "named insured"
shall mean the person named as such in the declarations of the
policy or contract and shall also include such the
person's
spouse if a resident of the same household and the term "insured"
shall mean the named insured and, while resident of the same
household, the spouse of any such named insured and relatives of
either, while in a motor vehicle or otherwise, and any person,
except a bailee for hire, who uses, with the consent, expressed
or implied, of the named insured, the motor vehicle to which the
policy applies or the personal representative of any of the
above; and the term "uninsured motor vehicle" shall mean a motor
vehicle as to which there is no: (i) Bodily injury liability
insurance and property damage liability insurance both in the
amounts specified by section two, article four, chapter
seventeen-d of this code, as amended from time to time; or (ii) there is such insurance, but the insurance company writing the
same denies coverage thereunder; or (iii) there is no certificate
of self-insurance issued in accordance with the provisions of
said section. A motor vehicle shall be deemed to be is uninsured
if the owner or operator thereof be unknown: Provided, That
recovery under the endorsement or provisions shall be subject to
the conditions hereinafter set forth.
(d) Any insured intending to rely on the coverage required
by subsection (b) of this section shall, if any action be
instituted against the owner or operator of an uninsured or
underinsured motor vehicle,
at the election of the insured,
either: (1)
Cause a copy of the summons and a copy of the
complaint to be served upon the insurance company issuing the
policy, in the manner prescribed by law, as though such the
insurance company were a named party defendant; such the company
shall thereafter have the right to file pleadings and to take
other action allowable by law in the name of the owner, or
operator, or both, of the uninsured or underinsured motor vehicle
or in its own name; or
(2)
File a separate cause of action alleging uninsurance or underinsurance as the case may be, under the contract between the
insured and his or her insurance company.
Nothing in this subsection shall prevent such the
owner or
operator from employing counsel of his or her own choice and
taking any action in his or her own interest in connection with
such proceeding.
(e) If the owner or operator of any motor vehicle which
causes bodily injury or property damage to the insured be
unknown, the insured or someone in his or her behalf, in order
for the insured to recover under the uninsured motorist
endorsement or provision, shall:
(i) Within twenty-four hours after the insured discover, and
being physically able to report the occurrence of such the
accident, the insured, or someone in his or her behalf, shall
report the accident to a police, peace or to a judicial officer,
unless the accident shall already have been investigated by a
police officer;
(ii) Notify the insurance company, within sixty days after
such the
accident, that the insured or his or her legal
representative has a cause or causes of action arising out of such the
accident for damages against a person or persons whose
identity is unknown and setting forth the facts in support
thereof; and, upon written request of the insurance company
communicated to the insured not later than five days after
receipt of such the
statement, shall make available for
inspection the motor vehicle which the insured was occupying at
the time of the accident; and
(iii) Upon trial establish that the motor vehicle, which
caused the bodily injury or property damage, whose operator is
unknown, was a "hit and run" motor vehicle, meaning a motor
vehicle which causes damage to the property of the insured
arising out of physical contact of such the
motor vehicle
therewith, or which causes bodily injury to the insured arising
out of physical contact of such the
motor vehicle with the
insured or with a motor vehicle which the insured was occupying
at the time of the accident. If the owner or operator of any
motor vehicle causing bodily injury or property damage be
unknown, an action may be instituted against the unknown
defendant as "John Doe", in the county in which the accident took
place or in any other county in which such the
action would be proper under the provisions of article one, chapter fifty-six of
this code; service of process may be made by delivery of a copy
of the complaint and summons or other pleadings to the clerk of
the court in which the action is brought, and service upon the
insurance company issuing the policy shall be made as prescribed
by law as though such the
insurance company were a party
defendant. The insurance company shall have the right to file
pleadings and take other action allowable by law in the name of
John Doe.
(f) An insurer paying a claim under the endorsement or
provisions required by subsection (b) of this section shall be
subrogated to the rights of the insured to whom such the
claim
was paid against the person causing such the
injury, death or
damage to the extent that payment was made. The bringing of an
action against the unknown owner or operator as John Doe or the
conclusion of such
an action shall not constitute a bar to the
insured, if the identity of the owner or operator who caused the
injury or damages complained of, becomes known, from bringing an
action against the owner or operator theretofore proceeded
against as John Doe. Any recovery against such the
owner or operator shall be paid to the insurance company to the extent
that such the
insurance company shall have paid the insured in
the action brought against such the
owner or operator as John
Doe, except that such the
insurance company shall pay its
proportionate part of any reasonable costs and expenses incurred
in connection therewith, including reasonable attorney's fees.
Nothing in an endorsement or provision made under this
subsection, nor any other provision of law, shall operate to
prevent the joining, in an action against John Doe, of the owner
or operator of the motor vehicle causing injury as a party
defendant, and such the
joinder is hereby specifically
authorized.
(g) No such endorsement or provisions shall contain any
provision requiring arbitration of any claim arising under any
such endorsement or provision, nor may anything be required of
the insured except the establishment of legal liability, nor
shall the insured be restricted or prevented in any manner from
employing legal counsel or instituting legal proceedings.
(h) The provisions of subsections (a) and (b) of this
section shall not apply to any policy of insurance to the extent that it covers the liability of an employer to his or her
employees under any workers' compensation law.
(i) The commissioner of insurance shall formulate and
require the use of standard policy provisions for the insurance
required by this section, but use of such the
standard policy
provisions may be waived by the commissioner in the circumstances
set forth in section ten of this article.
(j) A motor vehicle shall be deemed to be is uninsured
within the meaning of this section, if there has been a valid
bodily injury or property damage liability policy issued upon
such the
vehicle, but which policy is uncollectible, in whole or
in part, by reason of the insurance company issuing such the
policy upon such vehicle being insolvent or having been placed in
receivership. The right of subrogation granted insurers under
the provisions of subsection (f) of this section shall not apply
as against any person or persons who is or becomes an uninsured
motorist for the reasons set forth in this subsection.
(k) Nothing contained herein shall prevent any insurer from
also offering benefits and limits other than those prescribed
herein, nor shall this section be construed as preventing any insurer from incorporating in such terms, conditions and
exclusions as may be consistent with the premium charged.
(l) The insurance commissioner shall review on an annual
basis the rate structure for uninsured and underinsured
motorists' coverage as set forth in subsection (b) of this
section and shall report to the Legislature on said the rate
structure on or before the fifteenth day of January, one thousand
nine hundred eighty-three, and on or before the fifteenth day of
January of each of the next two succeeding years.
NOTE: The purpose of this bill is to provide that an
insured motorist may initiate a cause of action against the
person's own insurer to collect under the uninsured or
underinsured motorist provisions of the policy.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.