Senate Bill No. 660
(By Senators Facemyer, Love, Minard,
Snyder, Helmick, Fanning and Craigo)
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[Introduced March 26, 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
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.