Senate Bill No. 155
(By Senator Kessler)
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[Introduced January 10, 2002; 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.