NY Insurance Law

ARTICLE 51
COMPREHENSIVE MOTOR VEHICLE
INSURANCE REPARATIONS

      Section 
        5101. Title.
        5102. Definitions.
        5103. Entitlement  to first party benefits; additional financial
                security required.
        5104. Causes of action for personal injury.
        5105. Settlement between insurers.
        5106. Fair claims settlement.
        5107. Coverage for non-resident motorists.
        5108. Limit on charges by providers of health services.

  S 5101. Title. This article shall be known and may be cited as the
"Comprehensive  Motor Vehicle Insurance Reparations Act".

  S 5102. Definitions. In this chapter:
  (a) "Basic economic loss" means, up to fifty thousand dollars per
person of the following combined items, subject to the limitations of
section five thousand one hundred eight of this article:
  (1) All necessary expenses incurred for: (i) medical, hospital
(including services rendered in compliance with article forty-one of the
public health law, whether or not such services are rendered directly by
a hospital), surgical, nursing, dental, ambulance, x-ray, prescription
drug and prosthetic services; (ii) psychiatric, physical and
occupational therapy and rehabilitation; (iii) any non-medical remedial
care and treatment rendered in accordance with a religious method of
healing recognized by the laws of this state; and (iv) any other
professional health services; all without limitation as to time,
provided that within one year after the date of the accident causing the
injury it is ascertainable that further expenses may be incurred as a
result of the injury. For the purpose of determining basic economic
loss, the expenses incurred under this paragraph shall be in accordance
with the limitations of section five thousand one hundred eight of this
article.
  (2) Loss of earnings from work which the person would have performed
had he not been injured, and reasonable and necessary expenses incurred
by such person in obtaining services in lieu of those that he would have
performed for income, up to two thousand dollars per month for not more
than three years from the date of the accident causing the injury. An
employee who is entitled to receive monetary payments, pursuant to
statute or contract with the employer, or who receives voluntary
monetary benefits paid for by the employer, by reason of the employee`s
inability to work because of personal injury arising out of the use or
operation of a motor vehicle, is not entitled to receive first party
benefits for "loss of earnings from work" to the extent that such
monetary payments or benefits from the employer do not result in the
employee suffering a reduction in income or a reduction in the
employee`s level of future benefits arising from a subsequent illness or
injury.
  (3) All other reasonable and necessary expenses incurred, up to
twenty-five dollars per day for not more than one year from the date of
the accident causing the injury.
  (4) "Basic economic loss" shall not include any loss incurred on
account of death; subject, however, to the provisions of paragraph four
of subsection (a) of section five thousand one hundred three of this
article.
  (5) "Basic economic loss" shall also include an additional option to
purchase, for an additional premium, an additional twenty-five thousand
dollars of coverage which the insured or his legal representative may
specify will be applied to loss of earnings from work and/or
psychiatric, physical or occupational therapy and rehabilitation after
the initial fifty thousand dollars of basic economic loss has been
exhausted. This optional additional coverage shall be made available and
notice with explanation of such coverage shall be provided by an insurer
at the first policy renewal after the effective date of this paragraph,
or at the time of application.
  (b) "First party benefits" means payments to reimburse a person for
basic economic loss on account of personal injury arising out of the use
or operation of a motor vehicle, less:
  (1) Twenty percent of lost earnings computed pursuant to paragraph two
of subsection (a) of this section.
  (2) Amounts recovered or recoverable on account of such injury under
state or federal laws providing social security disability benefits, or
workers` compensation benefits, or disability benefits under article
nine of the workers` compensation law, or medicare benefits, other than
lifetime reserve days and provided further that the medicare benefits
utilized herein do not result in a reduction of such person`s medicare
benefits for a subsequent illness or injury.
  (3) Amounts deductible under the applicable insurance policy.
  (c) "Non-economic loss" means pain and suffering and similar
non-monetary detriment.
  (d) "Serious injury" means a personal injury which results in death;
dismemberment; significant disfigurement; a fracture; loss of a fetus;
permanent loss of use of a body organ, member, function or system;
permanent consequential limitation of use of a body organ or member;
significant limitation of use of a body function or system; or a
medically determined injury or impairment of a non-permanent nature
which prevents the injured person from performing substantially all of
the material acts which constitute such person`s usual and customary
daily activities for not less than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or
impairment.
  (e) "Owner" means an owner as defined in section one hundred
twenty-eight of the vehicle and traffic law.
  (f) "Motor vehicle" means a motor vehicle as defined in section three
hundred eleven of the vehicle and traffic law and also includes fire and
police vehicles. It shall not include any motor vehicle not required to
carry financial security pursuant to article six, eight or forty-eight-A
of the vehicle and traffic law or a motorcycle, as defined in subsection
(m) hereof.
  (g) "Insurer" means the insurance company or self-insurer, as the case
may be, which provides the financial security required by article six or
eight of the vehicle and traffic law.
  (h) "Member of his household" means a spouse, child or relative of the
named insured who regularly resides in his household.
  (i) "Uninsured motor vehicle" means a motor vehicle, the owner of
which is (i) a financially irresponsible motorist as defined in
subsection (j) of section five thousand two hundred two of this chapter
or (ii) unknown and whose identity is unascertainable.
  (j) "Covered person" means any pedestrian injured through the use or
operation of, or any owner, operator or occupant of, a motor vehicle
which has in effect the financial security required by article six or
eight of the vehicle and traffic law or which is referred to in
subdivision two of section three hundred twenty-one of such law; or any
other person entitled to first party benefits.
  (k) "Bus" means both a bus and a school bus as defined in sections one
hundred four and one hundred forty-two of the vehicle and traffic law.
  (l) "Compensation provider" means the state insurance fund, or the
person, association, corporation or insurance carrier or statutory fund
liable under state or federal laws for the payment of workers`
compensation benefits or disability benefits under article nine of the
workers` compensation law.
  (m) "Motorcycle" means any motorcycle, as defined in section one
hundred twenty-three of the vehicle and traffic law, and which is
required to carry financial security pursuant to article six, eight or
forty-eight-A of the vehicle and traffic law.

  S 5103. Entitlement to first party benefits; additional financial
security required. (a) Every owner`s policy of liability insurance
issued on a motor vehicle in satisfaction of the requirements of article
six or eight of the vehicle and traffic law shall also provide for;
every owner who maintains another form of financial security on a motor
vehicle in satisfaction of the requirements of such articles shall be
liable for; and every owner of a motor vehicle required to be subject to
the provisions of this article by subdivision two of section three
hundred twenty-one of the vehicle and traffic law shall be liable for;
the payment of first party benefits to:
  (1) Persons, other than occupants of another motor vehicle or a
motorcycle, for loss arising out of the use or operation in this state
of such motor vehicle. In the case of occupants of a bus other than
operators, owners, and employees of the owner or operator of the bus,
the coverage for first party benefits shall be afforded under the policy
or policies, if any, providing first party benefits to the injured
person and members of his household for loss arising out of the use or
operation of any motor vehicle of such household. In the event there is
no such policy, first party benefits shall be provided by the insurer of
such bus.
  (2) The named insured and members of his household, other than
occupants of a motorcycle, for loss arising out of the use or operation
of (i) an uninsured motor vehicle or motorcycle, within the United
States, its territories or possessions, or Canada; and (ii) an insured
motor vehicle or motorcycle outside of this state and within the United
States, its territories or possessions, or Canada.
  (3) Any New York resident who is neither the owner of a motor vehicle
with respect to which coverage for first party benefits is required by
this article nor, as a member of a household, is entitled to first party
benefits under paragraph two of this subsection, for loss arising out of
the use or operation of the insured or self-insured motor vehicle
outside of this state and within the United States, its territories or
possessions, or Canada.
  (4) The estate of any covered person, other than an occupant of
another motor vehicle or a motorcycle, a death benefit in the amount of
two thousand dollars for the death of such person arising out of the use
or operation of such motor vehicle which is in addition to any first
party benefits for basic economic loss.
  (b) An insurer may exclude from coverage required by subsection (a)
hereof a person who:
  (1) Intentionally causes his own injury.
  (2) Is injured as a result of operating a motor vehicle while in an
intoxicated condition or while his ability to operate such vehicle is
impaired by the use of a drug within the meaning of section eleven
hundred ninety-two of the vehicle and traffic law.
  (3) Is injured while he is: (i) committing an act which would
constitute a felony, or seeking to avoid lawful apprehension or arrest
by a law enforcement officer, or (ii) operating a motor vehicle in a
race or speed test, or (iii) operating or occupying a motor vehicle
known to him to be stolen, or (iv) operating or occupying any motor
vehicle owned by such injured person with respect to which the coverage
required by subsection (a) hereof is not in effect, or (v) a pedestrian,
through being struck by any motor vehicle owned by such injured
pedestrian with respect to which the coverage required by subsection (a)
hereof is not in effect, or (vi) repairing, servicing or otherwise
maintaining a motor vehicle if such conduct is within the course of a
business of repairing, servicing or otherwise maintaining a motor
vehicle and the injury occurs on the business premises.
  (c) Insurance offered by any company to satisfy the requirements of
subsection (a) hereof shall be offered (i) without a deductible and (ii)
with a family deductible of up to two hundred dollars (which deductible
shall apply only to the loss of the named insured and members of his
household). The superintendent may approve a higher deductible in the
case of insurance policies providing additional benefits or pursuant to
a plan designed and implemented to coordinate first party benefits with
other benefits.
  (d) Insurance policy forms for insurance to satisfy the requirements
of subsection (a) hereof shall be subject to approval pursuant to
article twenty-three of this chapter. Minimum benefit standards for such
policies and for self-insurers, and rights of subrogation, examination
and other such matters, shall be established by regulation pursuant to
section three hundred one of this chapter.
  (e) Every owner`s policy of liability insurance issued in satisfaction
of article six or eight of the vehicle and traffic law shall also
provide, when a motor vehicle covered by such policy is used or operated
in any other state or in any Canadian province, insurance coverage for
such motor vehicle at least in the minimum amount required by the laws
of that state or province.
  (f) Every owner`s policy of liability insurance issued on a motorcycle
or an all terrain vehicle in satisfaction of the requirements of article
six or eight of the vehicle and traffic law or section twenty-four
hundred seven of such law shall also provide for; every owner who
maintains another form of financial security on a motorcycle or an all
terrain vehicle in satisfaction of the requirements of such articles or
section shall be liable for; and every owner of a motorcycle or an all
terrain vehicle required to be subject to the provisions of this article
by subdivision two of section three hundred twenty-one of such law shall
be liable for; the payment of first party benefits to persons, other
than the occupants of such motorcycle or all terrain vehicle, another
motorcycle or all terrain vehicle, or any motor vehicle, for loss
arising out of the use or operation of the motorcycle or all terrain
vehicle within this state. Every insurer and self-insurer may exclude
from the coverage required by this subsection a person who intentionally
causes his own injury or is injured while committing an act which would
constitute a felony or while seeking to avoid lawful apprehension or
arrest by a law enforcement officer.
  (g) A company authorized to provide the insurance specified in
paragraph three of subsection (a) of section one thousand one hundred
thirteen of this chapter or a corporation organized pursuant to article
forty-three of this chapter may, individually or jointly, with the
approval of the superintendent upon a showing that the company or
corporation is qualified to provide for all of the items of basic
economic loss specified in paragraph one of subsection (a) of section
five thousand one hundred two of this article, provide coverage for such
items of basic economic loss to the extent that an insurer would be
required to provide under this article. Where a policyholder elects to
be covered under such an arrangement the insurer providing coverage for
the automobile shall be furnished with the names of all persons covered
by the company or corporation under the arrangement and such persons
shall not be entitled to benefits for any of the items of basic economic
loss specified in such paragraph. The premium for the automobile
insurance policy shall be appropriately reduced to reflect the
elimination of coverage for such items of basic economic loss. Coverage
by the automobile insurer of such eliminated items shall be effected or
restored upon request by the insured and payment of the premium for such
coverage. All companies and corporations providing coverage for items of
basic economic loss pursuant to the authorization of this subsection
shall have only those rights and obligations which are applicable to an
insurer subject to this article.
  (h) Any policy of insurance obtained to satisfy the financial security
requirements of article six or eight of the vehicle and traffic law
which does not contain provisions complying with the requirements of
this article, shall be construed as if such provisions were embodied
therein.

  S 5104. Causes of action for personal injury. (a) Notwithstanding any
other law, in any action by or on behalf of a covered person against
another covered person for personal injuries arising out of negligence
in the use or operation of a motor vehicle in this state, there shall be
no right of recovery for non-economic loss, except in the case of a
serious injury, or for basic economic loss. The owner, operator or
occupant of a motorcycle which has in effect the financial security
required by article six or eight of the vehicle and traffic law, or
which is referred to in subdivision two of section three hundred
twenty-one of such law, shall not be subject to an action by or on
behalf of a covered person for recovery for non-economic loss, except in
the case of a serious injury, or for basic economic loss.
  (b) In any action by or on behalf of a covered person, against a non-
covered person, where damages for personal injuries arising out of the
use or operation of a motor vehicle or a motorcycle may be recovered, an
insurer which paid or is liable for first party benefits on account of
such injuries has a lien against any recovery to the extent of benefits
paid or payable by it to the covered person. No such action may be
compromised by the covered person except with the written consent of the
insurer, or with the approval of the court, or where the amount of such
settlement exceeds fifty thousand dollars. The failure of such person to
commence such action within two years after accrual gives the insurer a
cause of action for the amount of first party benefits paid or payable
against any person who may be liable to the covered person for his
personal injuries. The insurer`s cause of action shall be in addition to
the cause of action of the covered person except that in any action
subsequently commenced by the covered person for such injuries, the
amount of his basic economic loss shall not be recoverable.
  (c) Where there is no right of recovery for basic economic loss, such
loss may nevertheless be pleaded and proved to the extent that it is
relevant to the proof of non-economic loss.

  S 5105. Settlement between insurers. (a) Any insurer liable for the
payment of first party benefits to or on behalf of a covered person and
any compensation provider paying benefits in lieu of first party
benefits which another insurer would otherwise be obligated to pay
pursuant to subsection (a) of section five thousand one hundred three of
this article or section five thousand two hundred twenty-one of this
chapter has the right to recover the amount paid from the insurer of any
other covered person to the extent that such other covered person would
have been liable, but for the provisions of this article, to pay damages
in an action at law. In any case, the right to recover exists only if at
least one of the motor vehicles involved is a motor vehicle weighing
more than six thousand five hundred pounds unloaded or is a motor
vehicle used principally for the transportation of persons or property
for hire. However, in the case of occupants of a bus other than
operators, owners, and employees of the owner or operator of the bus, an
insurer which, pursuant to paragraph one of subsection (a) of section
five thousand one hundred three of this article, provides coverage for
first party benefits for such occupants under a policy providing first
party benefits to the injured person and members of his household for
loss arising out of the use or operation of any vehicle of such
household, shall have no right to recover the amount of such benefits
from the insurer of such bus.
  (b) The sole remedy of any insurer or compensation provider to recover
on a claim arising pursuant to subsection (a) hereof, shall be the
submission of the controversy to mandatory arbitration pursuant to
procedures promulgated or approved by the superintendent.  Such
procedures shall also be utilized to resolve all disputes arising
between insurers concerning their responsibility for the payment of
first party benefits.
  (c) The liability of an insurer imposed by this section shall not
affect or diminish its obligations under any policy of bodily injury
liability insurance.

  S 5106. Fair claims settlement. (a) Payments of first party benefits
and additional first party benefits shall be made as the loss is
incurred. Such benefits are overdue if not paid within thirty days after
the claimant supplies proof of the fact and amount of loss sustained. If
proof is not supplied as to the entire claim, the amount which is
supported by proof is overdue if not paid within thirty days after such
proof is supplied. All overdue payments shall bear interest at the rate
of two percent per month. If a valid claim or portion was overdue, the
claimant shall also be entitled to recover his attorney`s reasonable
fee, for services necessarily performed in connection with securing
payment of the overdue claim, subject to limitations promulgated by the
superintendent in regulations.
  (b) Every insurer shall provide a claimant with the option of
submitting any dispute involving the insurer`s liability to pay first
party benefits, or additional first party benefits, the amount thereof
or any other matter which may arise pursuant to subsection (a) hereof to
arbitration pursuant to simplified procedures to be promulgated or
approved by the superintendent.
  (c) An award by an arbitrator shall be binding except where vacated or
modified by a master arbitrator in accordance with simplified procedures
to be promulgated or approved by the superintendent. The grounds for
vacating or modifying an arbitrator`s award by a master arbitrator shall
not be limited to those grounds for review set forth in article
seventy-five of the civil practice law and rules. The award of a master
arbitrator shall be binding except for the grounds for review set forth
in article seventy-five of the civil practice law and rules, and
provided further that where the amount of such master arbitrator`s award
is five thousand dollars or greater, exclusive of interest and
attorney`s fees, the insurer or the claimant may institute a court
action to adjudicate the dispute de novo.

  S 5107. Coverage for non-resident motorists. (a) Every insurer
authorized to transact or transacting business in this state, or
controlling or controlled by or under common control by or with such an
insurer, which sells a policy providing motor vehicle liability
insurance coverage or any similar coverage in any state or Canadian
province, shall include in each such policy coverage to satisfy the
financial security requirements of article six or eight of the vehicle
and traffic law and to provide for the payment of first party benefits
pursuant to subsection (a) of section five thousand one hundred three of
this article when a motor vehicle covered by such policy is used or
operated in this state.
  (b) Every policy described in subsection (a) hereof shall be construed
as having the coverage required by subsection (a) of section five
thousand one hundred three of this article.

  S 5108. Limit on charges by providers of health services. (a) The
charges for services specified in paragraph one of subsection (a) of
section five thousand one hundred two of this article and any further
health service charges which are incurred as a result of the injury and
which are in excess of basic economic loss, shall not exceed the charges
permissible under the schedules prepared and established by the chairman
of the workers` compensation board for industrial accidents, except
where the insurer or arbitrator determines that unusual procedures or
unique circumstances justify the excess charge.
  (b) The superintendent, after consulting with the chairman of the
workers` compensation board and the commissioner of health, shall
promulgate rules and regulations implementing and coordinating the
provisions of this article and the workers` compensation law with
respect to charges for the professional health services specified in
paragraph one of subsection (a) of section five thousand one hundred two
of this article, including the establishment of schedules for all such
services for which schedules have not been prepared and established by
the chairman of the workers` compensation board.
  (c) No provider of health services specified in paragraph one of
subsection (a) of section five thousand one hundred two of this article
may demand or request any payment in addition to the charges authorized
pursuant to this section. Every insurer shall report to the commissioner
of health any patterns of overcharging, excessive treatment or other
improper actions by a health provider within thirty days after such
insurer has knowledge of such pattern.