Senate Bill No. 304
(By Senators Helmick and Ross)
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[Introduced February 9, 1995; 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
insurance; insurance policy; motor vehicle policy; and the
determination of the total amount of coverage available to
an insured.
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 the 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 department 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 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 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 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 chapter seventeen-d, article
four, section two of this code, but nothing in such 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 shall be 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 the code of West Virginia, 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 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 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 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. "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 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 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 provision of
section two, article six, chapter seventeen-d of the code of West
Virginia. A motor vehicle shall be deemed to be uninsured if the
owner or operator thereof be unknown: Provided, That recovery
under the endorsement or provisions shall be 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 own choice and taking any
action in his 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 behalf, in order for the
insured to recover under the uninsured motorist endorsement or
provision, shall:
(i) (1) 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 behalf, shall report the
accident to a police, peace or judicial officer, or to the
commissioner of motor vehicles, unless the accident shall already
have been investigated by a police officer;
(ii) (2) Notify the insurance company, within sixty days
after such the accident, that the insured or his 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) (3) 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 the 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 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 the 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 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 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 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 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 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 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 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
motorist's 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.
(m) Regardless of whether the motor vehicle coverage is
provided through a multiple vehicle policy or in separate single
motor vehicle policies, no insurer providing a discount for
multiple motor vehicles with respect to that particular coverage
shall be treated differently from any other insurer for purposes
of determining the total amount of coverage available to an
insured.
NOTE: The purpose of this bill is to eliminate any
distinction among motor vehicle insurers in determining the total
amount of coverage available to an insured under uninsured or
underinsured motorist coverage.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.