H. B. 2811
(By Delegate Walters)
[Introduced March 31, 1993; referred to the
Committee on Banking and Insurance.]
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
uninsured and underinsured motorists' 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 be issued or delivered in this state to theowner 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 department 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 vehicle by the named insured or by
such 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 motor vehicle, the word
"owner" shall be construed to include the custodian of such
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 liabilityrequirements 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 or she shall be
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 the code of West Virginia,
as amended from time to time:
Provided,
That such 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 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 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 policy or
contract shall provide an option to the insured withappropriately 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. "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 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 thepolicy 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, 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 insurance company were a named party defendant; such 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 owner oroperator 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 accident,
the insured, or someone in his or her 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) Notify the insurance company, within sixty days after
such accident, that the insured or his or her legal
representative has a cause or causes of action arising out of
such 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 isunknown, 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 motor vehicle therewith,
or which causes bodily injury to the insured arising out of
physical contact of such 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
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 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 theinsured, 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 owner or operator
shall be paid to the insurance company to the extent that such
insurance company shall have paid the insured in the action
brought against such owner or operator as John Doe, except that
such 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 andrequire 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 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 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
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
motorists' coverage mandatory.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.