Senate Bill No. 547
(By Senator Kessler)
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[Introduced March 21, 2001; referred to the Committee on Banking
and Insurance.]
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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
underinsured motor vehicle insurance coverage; and making
certain requirements the same as uninsured motor vehicle
coverage.
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 the 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 the person: Provided, That in any
such the automobile liability insurance policy or contract, or
endorsement thereto to the policy or contract, 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 includes 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 is 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 the restrictive endorsement shall be construed to
abrogate abrogates 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 shall
be or she is legally entitled to recover as damages from the owner
or operator of an uninsured or underinsured 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 shall be or she is
legally entitled to recover as damages from the owner or operator
of an uninsured or underinsured 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 shall or she 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 such
also includes 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
the 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; 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 is unknown:
Provided, That recovery under the endorsement or provisions shall
be are 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 is
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 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 the proceeding.
(e) If the owner or operator of any motor vehicle which causes
bodily injury or property damage to the insured be is 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 has 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 is 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 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 is
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 the an action shall is 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 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
the endorsement or provision, nor may anything be required of the
insured except the establishment of legal liability, nor shall is
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 commissioner 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
the 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 do 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 in this section
prevents any insurer from also offering benefits and limits other
than those prescribed herein, nor shall does this section be
construed as preventing prevent 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 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 make underinsured
motorist coverage mandatory in car insurance policies.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.