H. B. 3001
(By Mr. Speaker, Mr. Kiss, and Delegates
Amores, Beane, G. White, Staton and Michael)
[Introduced March 26, 2001; referred to the
Committee on Banking and Insurance then the Judiciary.]
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
benefits, limits, terms, conditions and exclusions approved
by the commissioner of insurance.
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 may be issued or delivered in this state to
the owner of such vehicle, or shall may 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 contains 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 a 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 the 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 the 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 may any such policy or contract be so issued
or delivered unless it shall contain contains an endorsement or
provisions undertaking to pay the insured all sums which he or
she shall be is legally entitled to recover as damages from the
owner or operator of an uninsured motor vehicle, within limits
which shall be are 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 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 is 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 may 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 may 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 includes death resulting therefrom and the term "named
insured" shall mean means the person named as such in the
declarations of the policy or contract and shall also include
includes such the person's spouse if a resident of the same
household and the term "insured" shall mean means 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 means 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; (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 that section. A
motor vehicle shall be deemed is considered to be uninsured if
the owner or operator thereof be unknown: Provided, That
recovery under the endorsement or provisions shall be is 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, 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 may 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.
Nothing in this subsection shall prevent such prevents 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 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 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 has 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 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 does 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 has 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
operates 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 joinder is hereby specifically
authorized.
(g) No such endorsement or provisions shall may 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 may 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 do 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 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 is considered to be
uninsured within the meaning of this section, if there has been a
valid bodily injury or property damage liability policy issued
upon such vehicle, but which policy is uncollectible, in whole or
in part, by reason of the insurance company issuing such 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 does 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 in this chapter shall prevent
prevents any insurer from also offering benefits and limits other
than those prescribed herein in this chapter, nor shall may this
section be construed as preventing any insurer from incorporating
in such its terms, conditions and exclusions as may be consistent
with the premium charged approved by the commissioner in
accordance with this chapter. Any such benefits, limits, terms,
conditions, exclusions, the form thereof and the premium charged
therefore, shall be considered to meet the requirements of this
chapter unless disapproved by the commissioner in accordance with
this chapter.
(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 allow the commissioner
of insurance to approve any benefits, limits, terms, conditions,
exclusions, forms and premiums for insurance policies.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.