H. B. 4519
(By Delegate Capito)
[Introduced February 23, 1998; 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 insurance 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 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 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 a 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 the 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 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
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 set off 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
uninsured motor vehicle coverage,
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
uninsured motor
vehicle coverage or underinsured motor vehicle 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 means 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 it 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 is
determined 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
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 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 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
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 a 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 does 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 may 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 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 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) Nothing contained herein
shall prevent prevents any
insurer from also offering benefits and limits other than those
prescribed herein, nor
shall may this section be construed as
preventing any insurer from incorporating in
such the 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 the 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 eliminate any
distinction among motor vehicle insurers with regard to uninsured
motor vehicle coverage, thereby treating those insurers which use
single vehicle policies the same as those insurers which use
multivehicle policies for purposes of determining the total amount of available uninsured motorist coverage.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.