H. B. 2137
(By Delegate Wright)
[Introduced February 14, 2001
; referred to the
Committee on Banking and Insurance then Finance.]
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
prohibiting subrogation of motor vehicle liability insurance
medical payments.
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 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 that 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 is
construed to include the custodian of such a
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 the
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
are
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 means
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 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 the
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 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 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 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 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 a
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 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 an
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 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 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 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 may
not apply as
against any person or persons who is or becomes an uninsured
motorist for the reasons set forth in this subsection.
(k) No endorsement or provisions may contain any provision
with the right of subrogation to the insurer for any claims paid to
the insured under a medical payment provision of the policy. The
Legislature hereby declares subrogation of medical payments to be
contrary to public policy.
(k) (l) 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 these
terms, conditions and
exclusions as may be consistent with the premium charged.
(l) (m) 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 prohibit subrogation of
motor vehicle liability insurance medical payments.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.