COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 394
(By Senators Unger, McCabe, Chafin and Plymale)
____________
[Originating in the Committee on Banking and Insurance;
reported February 26, 2010.]
____________
A BILL to amend and reenact §17A-3-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §17D-2A-1, §17D-2A-2,
§17D-2A-3, §17D-2A-6, §17D-2A-7 and §17D-2A-8 of said code; to
amend said code by adding thereto a new section, designated
§17D-2A-6a; and to amend said code by adding thereto a new
section, designated §33-6-31g, all relating to authorizing the
Division of Motor Vehicles to use an electronic insurance
verification program to identify uninsured noncommercial motor
vehicles; surrendering registration plate to division when
required security dropped by owner or registrant; requiring
insurance companies licensed to do business in this state to
participate in an electronic insurance verification program
developed by the motor vehicles commissioner; providing
requirements for an electronic insurance verification program;
providing duties of the motor vehicles commissioner relating to a program; setting forth duties of insurers relating to a
program; providing penalties for failing to have the required
security or knowingly operating a motor vehicle without the
required security by suspending the owner's driver's license
and revoking vehicle registration; providing for a hearing;
providing that any rules promulgated by the motor vehicles
commissioner pertaining to a program be consistent with the
Insurance Industry Committee for Motor Vehicle Administration
Model; and authorizing the insurance commissioner to
promulgate rules and emergency rules, some of which may
prescribe penalties.
Be it enacted by the Legislature of West Virginia:
That §17A-3-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17D-2A-1, §17D-2A-2, §17D-2A-3,
§17D-2A-6, §17D-2A-7 and §17D-2A-8. of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §17D-2A-6a; and that said code be amended by
adding thereto a new section, designated §33-6-31g, all to read as
follows:
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-3. Application for registration; statement of insurance or
other proof of security to accompany application; criminal penalties; fees; special revolving fund.
Every owner of a vehicle subject to registration under this
article shall make application to the division for the registration
of the vehicle upon the appropriate form or forms furnished by the
division and every application shall bear the signature of the
owner or his or her authorized agent, written with pen and ink, and
the application shall contain:
(a) The name, bona fide residence and mailing address of the
owner, the county in which he or she resides or business address of
the owner if a firm, association or corporation.
(b) A description of the vehicle including, insofar as the
data specified in this section may exist with respect to a given
vehicle, the make, model, type of body, the manufacturer's serial
or identification number or other number as determined by the
commissioner.
(c) In the event a motor vehicle is designed, constructed,
converted or rebuilt for the transportation of property, the
application shall include a statement of its declared gross weight
if the motor vehicle is to be used alone, or if the motor vehicle
is to be used in combination with other vehicles, the application
for registration of the motor vehicle shall include a statement of
the combined declared gross weight of the motor vehicle and the
vehicles to be drawn by the motor vehicle; declared gross weight
being the weight declared by the owner to be the actual combined
weight of the vehicle or combination of vehicles and load when
carrying the maximum load which the owner intends to place on the vehicle; and the application for registration of each vehicle shall
also include a statement of the distance between the first and last
axles of that vehicle or combination of vehicles.
The declared gross weight stated in the application
shall may
not exceed the permissible gross weight for the axle spacing listed
in the application as determined by the table of permissible gross
weights contained in chapter seventeen-c of this code; and any
vehicle registered for a declared gross weight as stated in the
application is subject to the single-axle load limit set forth in
said that chapter.
(d) Each applicant shall state whether the vehicle is or is
not to be used in the public transportation of passengers or
property, or both, for compensation and if used for compensation,
or to be used, the applicants shall certify that the vehicle is
used for compensation and shall, as a condition precedent to the
registration of the vehicle, obtain a certificate of convenience or
permit from the Public Service Commission unless otherwise exempt
from this requirement in accordance with chapter twenty-four-a of
this code.
(e) A statement under penalty of false swearing that liability
insurance is in effect and will continue to be in effect through
the entire term of the vehicle registration period within limits
which
shall be no may not be less than the requirement of section
two, article four, chapter seventeen-d of this code, which shall
contain the name
and National Association of Insurance
commissioners assigned code of the applicant's insurer,
the policy number, the name of the agent or agency which issued the policy and
the effective date of the policy and any other information required
by the commissioner of Motor Vehicles or that the applicant has
qualified as a self-insurer meeting the requirements of section
two, article six of said chapter and that as a self-insurer he or
she has complied with the minimum security requirements as
established in section two, article four of
said that chapter.
If
the commissioner determines that the required security is not or
was not in effect, he or she shall suspend the vehicle owner's
driver's license and revoke the vehicle registration in accordance
with the provisions of article two-a, chapter seventeen-d of this
code.
(1) Intentional lapses of insurance coverage. --
(A) In the case of a periodic use or seasonal vehicle, as
defined in section three, article two-a, chapter seventeen-d of
this code, the owner may provide, in lieu of other statements
required by this section, a statement, under penalty of false
swearing, that liability insurance is in effect during the portion
of the year the vehicle is in actual use, within limits which shall
be no less than the requirements of section two, article four,
chapter seventeen-d of this code, and other information relating to
the seasonal use on a form designed and provided by the division.
(B) Any registrant who prior to expiration of his or her
vehicle registration drops or cancels insurance coverage for any
reason other than periodic or seasonal use shall either surrender
the registration plate or shall, by certified mail, notify the division of the cancellation. The notice shall contain a statement
under penalty of false swearing that the vehicle will not be
operated on the roads or highways of this state.
(C) The registration of any vehicle upon which insurance
coverage has been dropped or canceled under subparagraph (B) of
this paragraph shall be reinstated upon submission of current proof
of insurance and payment of the duplicate plate fee prescribed by
this chapter.
(2) Verification process. --
The division may select any certificate of insurance, owner's
statement of insurance, motor vehicle registration or any other
form or document for verification of insurance coverage with an
insurance company.
(A) If the division verifies with an insurance company that a
motor vehicle was operated in this state without the required
security in effect based on information received on an accident
report, citation, court report or any other evidence of motor
vehicle operation, the division shall proceed against the owner and
driver in accordance with section seven, article two-a, chapter
seventeen-d of this code.
(B) If the division selects a motor vehicle registration for
verification of insurance and determines that the owner of a
registered motor vehicle did or does not have the required security
in effect at the time of verification, the division shall proceed
as follows:
(I) The division shall send a notice by certified mail to the registered owner's address and to any lienholder noted on the
certificate of title, advising that unless the owner provides
verifiable proof that the vehicle was insured on the date of
verification or that the vehicle is or was not required to be
registered, the owner's driver's license will be suspended for
thirty days for a first offense and ninety days for a second or
subsequent offense and the motor vehicle registration will be
revoked until current verifiable proof of insurance is provided to
the division: Provided, That the division shall suspend the
driver's license of only one owner if a vehicle is registered in
more than one name.
(ii) If, after the notice required in clause (I) of this
subparagraph is given to the owner and the lienholder, the owner
fails to provide proof of insurance, the driver's license
suspension and motor vehicle registration revocation shall go into
effect without further notice thirty days from the date of the
notice.
(iii) The division shall reinstate the driver's license
without regard to the suspension period in this paragraph and
reinstate the motor vehicle registration upon submission of proof
of current insurance coverage and payment of the reinstatement fees
provided in section nine, article three, chapter seventeen-b of
this code and section seven, article nine of this chapter.
(3) If any person making an application required under the
provisions of this section, in the application knowingly provides
false information, false proof of security or a false statement of insurance, or if any person, including an applicant's insurance
agent, knowingly counsels, advises, aids or abets another in
providing false information, false proof of security, or a false
statement of insurance in the application he or she is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than five hundred dollars, or be imprisoned in jail for a period
not to exceed fifteen days, or both fined and imprisoned and, in
addition to the fine or imprisonment, shall have his or her
driver's license suspended for a period of ninety days and vehicle
registration revoked if applicable.
(f) Any further information
as may that is reasonably
be
required by the division to enable it to determine whether the
vehicle is lawfully entitled to registration.
(g) Each application for registration shall be accompanied by
the fees provided in this article and an additional fee of fifty
cents for each motor vehicle for which the applicant seeks
registration.
(h) Revocation of a motor vehicle registration pursuant to
this section
shall does not affect the perfection or priority of a
lien or security interest attaching to the motor vehicle that is
noted on the certificate of title to the motor vehicle.
CHAPTER 17D. MOTOR VEHICLE SAFETY RESPONSIBILITY LAW.
ARTICLE 2A. SECURITY UPON MOTOR VEHICLES.
§17D-2A-1. Purpose of article.
The purpose of this article is to promote the public welfare
by requiring every owner or registrant of a motor vehicle licensed in this state
or operated in this state to maintain certain security
during the registration period for
such the vehicle
and to provide
the means for the Division of Motor Vehicles, law enforcement and
the judicial branch to electronically verify evidence of current
insurance coverage at any time while a vehicle has a current
registration or is operated on the roads and highways.
§17D-2A-2. Scope of article.
This article applies to the operation of all motor vehicles
required to be registered
or operated on the roads and highways to
have
proof of the security
pursuant to article three, chapter
seventeen-a of this code in effect, as provided in section two,
article two of this chapter, with the exception of motor vehicles
owned by the state, any of its political subdivisions or by the
federal government.
To the extent it authorizes the establishment of an on-line
insurance verification program, this article applies to all non-
commercial motor vehicles. Nothing in this article prohibits an
insurer of commercial motor vehicles from voluntarily participating
in the on-line insurance verification system.
§17D-2A-3. Required security; exceptions.
(a) Every owner or registrant of a motor vehicle required to
be registered and licensed in this state shall maintain security as
hereinafter provided in effect continuously throughout the
registration or licensing period except in case of a periodic use
or seasonal vehicle, in which case the owner or registrant is
required to maintain security upon the vehicle only for the portion of the year the vehicle is in actual use. As used in this section,
a periodic use or seasonal vehicle means a recreational vehicle,
antique motor vehicle, motorcycle or other motor vehicle which is
stored part of the year and used seasonally.
(b) The owner or registrant shall immediately surrender the
registration plate to the Division of Motor Vehicles when he or she
drops the required security during the registration period. An owner
of a periodic use or seasonal vehicle may retain a registration
plate subject to legislative rules promulgated by the commissioner.
(b) (c) Every nonresident owner or registrant of a motor
vehicle, which is operated upon any road or highway of this state
and which has been physically present within this state for more
than thirty days during the preceding three hundred sixty-five days
shall thereafter maintain security as hereinafter provided in effect
continuously throughout the period
such the motor vehicle remains
within this state.
(c) (d) No person
shall may knowingly drive or operate upon any
road or highway
in this state any motor vehicle upon which security
is required by the provisions of this article unless
such the
required security is in effect.
(d) (e) Such The security shall be provided by one of the
following methods:
(1) By an insurance policy delivered or issued for the delivery
in this state by an insurance company authorized to issue vehicle
liability and property insurance policies in this state within limits which
shall be no may not be less than the requirements of
section two, article four of this chapter; or
(2) By qualification as a self-insurer under the provisions of
section two, article six of this chapter.
(e) (f) This article does not apply to any motor vehicle owned
by the state or by a political subdivision of this state, nor to any
motor vehicle owned by the federal government.
§17D-2A-6. Investigation by duly authorized law-enforcement
officer to include inquiry regarding required
security; notice by officer or court to Division of
Motor Vehicles.
(a) At the time of investigation of a motor vehicle offense or
accident crash in this state by the State Police or other law-
enforcement agency or when a vehicle is stopped by a law-enforcement
officer for reasonable cause, the officer of the agency making the
investigation shall inquire of the operator of any motor vehicle
involved
and, by an inquiry through the on-line insurance
verification program established in accordance with section six-a
of this article if available
as to the existence upon the vehicle
or vehicles of the proof evidence of insurance or other security
required by the provisions of this code and upon a finding by the
law-enforcement agency, officer or agent thereof that the security
required by the provisions of this article is not in effect, as to
any vehicle, he or she shall notify the Division of Motor Vehicles
of the finding within five days. if no citation requiring a court
appearance is issued: Provided, That the law-enforcement officer or agent may not stop vehicles solely to inquire as to the
certificate of insurance.
(b) A defendant who is charged with a traffic offense that
requires an appearance in court shall present the court at the time
of his or her appearance or subsequent appearance with proof that
the defendant had security at the time of the traffic offenses as
required by this article subject to verification by the court
through the Division of Motor Vehicles or its agent or by an on-line
insurance verification program if available.
(c) If, as a result of the defendant's failure to show proof,
the court determines that the defendant has violated this article,
the court shall notify the Division of Motor Vehicles within five
days. For purposes of this section, presentation of a certificate
of insurance reflecting insurance to be in effect on the date in
question shall constitute proof of surety.
§17D-2A-6a. Determining if required security is in effect.
(a) The commissioner may make a determination that the required
security on a motor vehicle is not in effect based upon crash
reports required under the provisions of article four, chapter
seventeen-c of this code, reports or citations from law-enforcement
agencies, citations or abstracts of conviction from courts or from
information from an on-line electronic insurance verification
program.
(b) The commissioner is authorized to develop and implement
an electronic insurance verification program based upon a model
established by the Insurance Industry Committee on Motor Vehicle Administration to electronically verify evidence of insurance
coverage with insurance companies.
(c) The commissioner may contract with a third party vendor to
act as his or her agent to develop the program, conduct the
electronic verification process with insurance companies and to
operate the program.
(d) If developed and implemented by the commissioner, the on-
line insurance verification program shall:
(1) Be able to verify, on an on-demand basis minus reasonable
down time for system maintenance as agreed upon by the division or
its agent and the insurance carrier, the liability insurance status
as of the time of the inquiry or at other times not exceeding six
months prior unless otherwise agreed upon by the division or its
agent and the insurance carrier or via other similar electronic
system that is consistent with insurance industry and Insurance
Industry Committee on Motor Vehicle Administration (IICMVA)
recommendations and the specifications and standards of the IICMVA
model;
(2) Be able to make insurance verification inquiries to
insurers by using multiple data elements for greater matching
accuracy including: National Association of Insurance Commissioner's
(NAIC) code specific to each licensed insurance company, vehicle
identification numbers and policy number or other data elements as
otherwise agreed to by the division or its agent and the insurer.
(3) Provide sufficient measures for the security and integrity
of data including a requirement that the information obtained through the operation of the program be only used for the sole use
of the Division of Motor Vehicles or its agent, law enforcement and
the judiciary to effectuate the provisions of this article; and
(4) Utilize open and agreed upon data and data transmission
standards and standard SML extensible markup language schema.
(d) If the commissioner develops and implements an on-line
insurance verification program, each insurer shall:
(1) Cooperate with the Division of Motor Vehicles, or its agent
in establishing and operating the program;
(2) Maintain the data necessary to verify the existence of
mandatory liability insurance coverage provided to its customers
pursuant to the required time period established for the on-line
insurance verification program;
(3) Maintain the internet web service, pursuant to the
requirements established under the online insurance verification
program, through which online insurance verification can take place
that includes the ability to respond to authorized inquiries on
whether the vehicle is insured or the policy in effect on the
requested date through the insurer's national insurance
commissioners association code, vehicle identification number,
insurance policy number or other data key or keys as otherwise
agreed to by the division or its agent and the insurer;
(4) Provide security consistent with accepted insurance
industry and United States motor vehicle agency standards pertinent
to the transmission of personal data;
(5) Be immune from civil and administrative liability for good faith efforts to comply with the terms of the verification program;
and
(6) As a condition of writing motor vehicle liability insurance
in this state, insurance carriers shall cooperate with the division
or its agent and the insurance commission in establishing and
maintaining an insurance verification system. Nothing prohibits an
insurer from using the services of a third party vendor for
facilitating the insurance verification program required by this
section.
(e) If the commissioner develops and implements an on-line
insurance verification program, the Division of Motor Vehicles or
its agent as applicable shall:
(1) Consult and cooperate with insurers in establishing and
operating the on-line insurance verification system;
(2) Designate and maintain a contact person for insurers during
the establishment and implementation of the on-line insurance
verification system;
(3) Conduct a pilot project to test the insurance verification
system no less than nine months prior to final implementation;
(4) Establish and maintain the systems necessary to make
verification requests to insurers using the data elements that the
Division of Motor Vehicles or its agent and the insurer have agreed
upon and are necessary to receive accurate responses from insurers;
(5) For all information transmitted and received, implement and
maintain strict system and data security measures consistent with
applicable standards. Data secured via the reporting system by either the division or its agent may not be shared with any party
other than those permitted by state or federal privacy laws;
(6) Be responsible for keeping all interested state agencies
informed on the implementation status, functionality, and planned or
unplanned service interruptions; and
(7) Provide alternative methods of reporting for small insurers
writing less than 500 non-commercial motor vehicle policies in the
state as determined by the Division of Motor Vehicles or its agent;
(d) Any information obtained by the division or its agent under
the provisions of an electronic insurance system is for the sole use
of the Division of Motor Vehicles or its agent, law enforcement and
the judiciary to effectuate the provisions of this article and is
exempt from disclosure under the provisions of article one, chapter
twenty-nine-b and may not be considered a public record as defined
in section two, article one, chapter twenty-nine-b of this code.
(f) Not more than two years after the establishment of an on-
line insurance verification program, the Division of Motor Vehicles,
after consultation with insurers, shall report to the Legislature as
to the costs of the program incurred by the division, insurers and
the public and the effectiveness of the program in reducing the
number of uninsured motor vehicles.
§17D-2A-7. Suspension or revocation of license, registration;
reinstatement.
(a) Any owner of a motor vehicle, subject to the provisions of
this article, who fails to have the required security in effect at
the time such vehicle is registered or being operated upon the roads or highways of this state shall have his or her driver's license
suspended by the commissioner of the division of motor vehicles for
a period of thirty days and shall have his or her motor vehicle
registration revoked until such time as he or she shall present to
the Division of Motor Vehicles the proof of security required by
this article: Provided, That if a motor vehicle is registered in
more than one name, the driver's license of only one of the owners
shall be suspended by the commissioner as follows:
(1) For the first offense, the commissioner shall suspend the
driver's license and vehicle registration until such time as he or
she presents current proof of insurance on all currently registered
vehicles: Provided, That if an owner complies with the provisions
of this subdivision, and pays a penalty fee of $200 before the
effective date, the driver's license suspension of thirty days shall
not be imposed and the vehicle registration revocation shall be not
imposed and no reinstatement fees are required.
(2) For the second offense within five years, the commissioner
shall suspend the owner's driver's license for a period of thirty
days and shall revoke the owner's vehicle registration until he or
she presents to the Division of Motor Vehicles the proof of security
required by this article.
(3) For the third or subsequent offense within five years, the
commissioner shall suspend the owner's driver's license for a period
of ninety days and revoke the vehicle registration until such time
as he or she presents current proof of insurance.
(4) If the motor vehicle is titled and registered in more than
one name, the commissioner shall suspend the driver's license of
only one of the owners.
(b) Any person who knowingly operates a motor vehicle upon the
roads or highways of this state which does not have the security
required by the provisions of this article shall have his or her
driver's license suspended by the commissioner for a period of
thirty days subject to the following:
(1) For the first offense, the commissioner shall suspend the
driver's license until such time as he or she presents current proof
of insurance on all currently registered vehicles: Provided, That
if a driver complies with the provisions of this section and pays a
penalty fee of $200 before the effective date of the driver's
license suspension, the thirty day driver's license suspension shall
not be imposed and no reinstatement fees are required.
(2) For the second offense within five years, the commissioner
shall suspend the driver's license for a period of thirty days.
(3) For the third or subsequent offense within five years, the
commissioner shall suspend the person's driver's license for a
period of ninety days.
(c) A person's driver's license shall be suspended for a period
of thirty days in accordance with subsection(b) of this section if
the person is operating a motor vehicle designated for off-highway
use upon the roads and highways of this state without the required
security in effect. if the motor vehicle is not properly registered
and licensed or if the required security was canceled.
(d) The commissioner may withdraw a suspension of a driver's
license or revocation of a motor vehicle registration and refund any
penalty or reinstatement fees at any time provided that the
commissioner is satisfied that there was not a violation of the
provisions of required security related to operation of a motor
vehicle upon the roads or highways of this state by such person.
The commissioner may request additional information as needed in
order to make such determination.
(e) No A person shall may not have his or her driver's license
suspended or motor vehicle registration revoked under any provisions
of this section unless he or she and any lienholder noted on the
certificate of title shall is first be given written notice of such
suspension or revocation sent by certified mail, at least thirty
days prior to the effective date of such suspension or revocation,
and upon such that person's written request, sent by certified mail
he or she shall be afforded an opportunity for a hearing thereupon
as well as a stay of the commissioner's order of suspension or
revocation and an opportunity for judicial review of such hearing.
The request for a hearing shall be made within ten days from the
date of receipt of the notice of driver's license suspension or
motor vehicle registration revocation. The scope of the hearing is
limited to questions of identity or whether or not there was
insurance in effect at the time of the event causing the
commissioner's action. Upon affirmation of the commissioner's
order, the period of suspension, or revocation shall commence or
other penalty commences to run.
(f) Such A suspended driver's license shall be is reinstated
following the period of suspension upon compliance with the
conditions set forth in this article and such a revoked motor
vehicle registration shall be is reissued only upon lawful
compliance with the provisions of this article.
(g) If the commissioner has previously suspended the person's
driver's license for any reason related to failure to maintain
insurance on a motor vehicle within the previous five years, the
period of suspension shall be for a period of ninety days.
(h) (g) Revocation of a motor vehicle registration pursuant to
this section shall does not affect the perfection or priority of a
lien or security interest attaching to the motor vehicle that is
noted on the certificate of title to the motor vehicle.
(h) Any owner or driver of a motor vehicle determined by an
electronic insurance verification program to be uninsured shall be
assessed the same criminal and administrative sanctions prescribed
in this chapter subject to the following;
(1) Any person who is assessed a penalty prescribed by this
section has the same procedural due process provided by this chapter
or by rules promulgated by the division to show that there was not
a violation and provide for the exoneration of any penalties or
records; and
(2) The commissioner may accept a binder, an identification
card or a declaration page from a policy as evidence of insurance
pending electronic verification to stay a pending administrative
sanction.
§ 17D-2A-8. Rules.
The Commissioner of the Division of Motor Vehicles is hereby
authorized to promulgate rules, in accordance with chapter
twenty-nine-a of this code, for the administration, operation and
enforcement of the provisions of this article. Any rules or
procedures which pertain to an electronic insurance verification
program shall be consistent with the provisions and intent of the
standards and specifications of the Insurance Industry Committee for
Motor Vehicle Administration Model.
CHAPTER 33. INSURANCE.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-31g. Electronic insurance verification program; insurer's
duty to cooperate.
(a) If the Division of Motor Vehicles establishes an electronic
insurance verification program in accordance with the provisions of
section six-a, article two-a, chapter seventeen-d of this code, any
insurance company that issues or delivers in this state a 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, or upon any motor vehicle
for which a certificate of title has been issued by the Division of
Motor Vehicles of this state, shall comply with the requirements of
the program.
(b) The insurance commissioner may propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code as necessary to implement the provisions of this section, and may initially promulgate
emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code. Such rules may
prescribe penalties, including fines and other administrative
sanctions, that may be imposed by the commissioner for a company's
failure to comply with requirements of the electronic insurance
verification program.
___
__________
(NOTE: Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language that
would be added.
§17D-2A-6a and §33-6-31g are new; therefore, underscoring and
strike-throughs have been omitted.)
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