ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 191
(By Senators Ross, Anderson, Helmick, Love and Buckalew)
____________
[Originating in the Committee on Transportation;
reported February 10, 1998.]
A BILL to repeal section thirteen, article four, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections one, three, five, six, seven, eight, nine, ten,
twelve, fifteen and sixteen of said article; and to amend
and reenact section thirty-one, article six, chapter thirty- three of said code, all relating to repealing the
requirement that accident reports be confidential; revising
accident reporting requirements; revising accident report
forms; revising reporting requirements for garages; and
revising reporting requirements to the commissioner of motor
vehicles under certain motor vehicle insurance policies.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article four, chapter seventeen-c of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that sections one, three, five, six,
seven, eight, nine, ten, twelve, fifteen and sixteen of said
article be amended and reenacted; and that section thirty-one,
article six, chapter thirty-three of said code be amended and
reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 4. ACCIDENTS.
§17C-4-1. Accidents involving death or personal injuries.
(a) The driver of any vehicle involved in an accident
resulting in injury to or death of any person shall immediately
stop such vehicle at the scene of such accident or as close
thereto as possible but shall then forthwith return to and in
every event shall remain at the scene of the accident until he
has fulfilled the requirements of section three of this article.
Every such stop shall be made without obstructing traffic more
than is necessary.
(b) Any person failing to stop or to comply with said
requirements under such circumstances shall upon conviction be
punished by imprisonment for not less than thirty days nor more
than one year or by fine of not less than one hundred dollars nor
more than five thousand dollars, or by both such fine and imprisonment.
(c) The commissioner shall revoke the license or permit to
drive and any nonresident operating privilege of the person so
convicted
for a period of one year.
§17C-4-3. Duty to give information and render aid.
The driver of any vehicle involved in an accident resulting
in injury to or death of any person or damage to any vehicle
which is driven or attended by any person shall give his
or her
name, address and the registration number of the vehicle he
or
she is driving and shall upon request and if available exhibit
his
operator's or chauffeur's or her driver's license to the
person struck or the driver or occupant of or person attending
any vehicle collided with and shall render to any person injured
in such accident reasonable assistance, including the carrying,
or the making arrangements for the carrying of such person to a
physician, surgeon or hospital for medical or surgical treatment
if it is apparent that such treatment is necessary or if such
carrying is requested by the injured person.
§17C-4-5. Duty upon striking fixtures upon a highway.
The driver of any vehicle involved in an accident resulting
only in damage to fixtures or other property legally upon or
adjacent to a highway shall take reasonable steps to locate and
notify the owner or person in charge of such property of such fact and of his
or her name and address and of the registration
number of the vehicle he
or she is driving and shall upon request
and if available exhibit his
operator's or chauffeur's or her
driver's license and shall make report of such accident when and
as required in section seven of this article.
§17C-4-6. Immediate reports of accidents.
The driver of a vehicle involved in an accident resulting in
injury to or death of any person
or total property damage to an
apparent extent of two hundred fifty dollars or more shall
immediately by the quickest means of communication, whether oral
or written, give notice of such accident to the local police
department if such accident occurs within a municipality,
otherwise to the office of the county sheriff or the nearest
office of the
West Virginia state police department of public
safety.
§17C-4-7. Written reports of accidents.
(a) The driver or the attorney or agent of such driver of a
vehicle involved in an accident occurring on the public highways
of this state resulting in bodily injury to or death of any
person or total property damage to an apparent extent of two
hundred fifty dollars or more shall, within five days after such
accident, forward a written report of such accident to the
department of motor vehicles.
(b) The department may require any driver of a vehicle
involved in an accident of which report must be made as provided
in this section to file supplemental reports whenever the
original report is insufficient in the opinion of the department
and may require witnesses of accidents to render reports to the
department.
(c) Every law-enforcement officer who, in the regular course
of duty, investigates a motor vehicle accident
of which report
must be made as required in this section, occurring on the public
highways of this state resulting in bodily injury to or death of
any person or total property damage to an apparent extent of two
hundred fifty dollars or more shall, either at the time of and at
the scene of the accident or thereafter by interviewing
participants or witnesses shall, within twenty-four hours after
completing such investigation, forward a written report of such
accident to the
division department. The
department division
shall prepare a form for such accident report and, after approval
of such form by the commissioner, the superintendent of the
department of public safety West Virginia state police and the
state road commissioner
of highways, shall supply copies of such
form to police departments, sheriffs and other appropriate law- enforcement agencies. Every accident report required under the
provisions of this
subsection (c) section shall be made on such form.
§17C-4-8. When driver unable to report.
(a) Whenever the driver of a vehicle is physically incapable
of making an immediate report of an accident as required in
section six of this article and there was another occupant in the
vehicle at the time of the accident capable of making a report,
such occupant shall make or cause to be made said report not made
by the driver.
(b) Whenever the driver is physically incapable of making a
written report of an accident as required in section seven of
this article and such driver is not the owner of the vehicle,
then the owner of the vehicle involved in such accident shall
within five days after learning of the accident make such report
not made by the driver.
§
17C-4-9. Accident report forms.
(a) The
department division shall prepare and upon request
supply to police departments, coroners, sheriffs,
division of
natural resources,
garages, and other suitable agencies or
individuals, forms for accident reports required hereunder,
appropriate with respect to the persons required to make such
reports and the purposes to be served. The written reports to be
made
by persons involved in accidents and by investigating
officers shall call for sufficiently detailed information to disclose with reference to a traffic accident the cause,
conditions then existing, and the persons and vehicles involved.
(b) Every accident report required to be made in writing
shall be made on the appropriate form approved by the
department
division and shall contain all of the information required
therein unless not available.
(c) Every such report shall also contain information
sufficient to enable the commissioner to determine whether the
requirements for
security upon motor vehicles is in effect in
accordance with chapter seventeen-d of this code. the deposit of
security under any of the laws of this state are inapplicable by
reason of the existence of insurance or other exceptions
specified therein.
§17C-4-10. Penalty for failure to report.
The commissioner
shall may suspend the license or permit to
drive and any nonresident operating privileges of any person
failing to report an accident as herein provided
under section
six of this article until such report has been filed. Any person
convicted of failing to make a report as required herein shall be
punished as provided in section one, article eighteen of this
chapter.
§17C-4-12. Garages to report bullet damage.
The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been
involved in an accident of which report must be made as provided
in section seven of this article, or struck by any bullet, shall
report to the
department local law-enforcement agency within
twenty-four hours after such motor vehicle is received, giving
the engine number, registration number, and the name and address
of the owner or operator of such vehicle.
§17C-4-15. Any incorporated city, town, etc., may require
accident reports.
Any incorporated city, town, village or other municipality
may by ordinance require that the driver of a vehicle involved in
an accident shall
also file with a designated city department a
report of such accident.
or a copy of any report herein required
to be filed with the department. All such reports shall be for
the confidential use of the city department.
and subject to the
provisions of section thirteen of this article.
§17C-4-16. Accidents involving state and municipal property;
reports to be provided.
Whenever a report of a motor vehicle accident prepared by a
member of the
department of public safety West Virginia state
police, conservation officer of the division of natural
resources, a member of a county sheriff's department or a
municipal police officer, in the regular course of their duties, indicates that as a result of such accident damage has occurred
to any bridge, sign, guardrail or other property, exclusive of
licensed motor vehicles, a copy of such report shall, in the case
of such property belonging to the
department division of
highways, be provided to the commissioner of the
department
division of highways, and, in the case of such property belonging
to a municipality, be provided to the mayor of that municipality.
The copies of such reports shall be provided to the commissioner
or mayor, as applicable, without cost to them.
CHAPTER 33. INSURANCE.
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 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 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 liability
requirements of section two, article four, chapter seventeen-d 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 this code, 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 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
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 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. 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 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 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 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 provisions of said section. 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 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 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
to a 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 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 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 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 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 and
require 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.
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