INS-04-11-00001-P Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act

1/26/11 N.Y. St. Reg. INS-04-11-00001-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 4

January 26, 2011

RULE MAKING ACTIVITIES

INSURANCE DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. INS-04-11-00001-P

Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend Subparts 65-1 (Regulation 68-A) and 65-2 (Regulation 68-B) of Title 11 NYCRR.

Statutory authority:

Insurance Law, sections 201, 301, 2307, 5103 and 5221

Subject:

Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act.

Purpose:

To revise the regulations to comply with chapter 303 of the Laws of 2010.

Text of proposed rule:

Subdivision (b) of Section 65-1.1 is amended to read as follows:

(b) An insurer shall provide the appropriate endorsement to be used with a policy. The Mandatory Personal Injury Protection Endorsement (New York) and the Mandatory Personal Injury Protection Endorsement - Motorcycles (New York) set out below are approved and promulgated for use by an insurer [and, except]. Except as provided in subdivision (c) of this section and section 65-1.7 of this Subpart, [must be:

(1) furnished to all new insureds with policies effective on and after September 1, 2001; and

(2) enclosed with the first renewal policies renewed on and after September 1, 2001.] an insurer shall provide:

(1) the Mandatory Personal Injury Protection Endorsement (New York) to every insured with respect to a policy issued, renewed, modified, altered or amended on or after January 26, 2011; or

(2) the Mandatory Personal Injury Protection Endorsement - Motorcycles (New York) to every insured with respect to a motorcycle policy issued or renewed.

The "Exclusions" provision set forth in Subdivision (d) of Section 65-1.1 is amended to read as follows:

Exclusions

This coverage does not apply to personal injury sustained by:

(g) any person as a result of operating a motor vehicle while in an intoxicated condition or while his or her ability to operate [such] the vehicle is impaired by the use of a drug (within the meaning of section 1192 of the New York Vehicle and Traffic Law) except that coverage shall apply to necessary emergency health services rendered in a general hospital, as defined in section 2801(10) of the New York Public Health Law, including ambulance services attendant thereto and related medical screening. However, where the person has been convicted of violating section 1192 of the New York Vehicle and Traffic Law while operating a motor vehicle in an intoxicated condition or while his or her ability to operate such vehicle is impaired by the use of a drug, and the conviction is a final determination, the Company has a cause of action against such person for the amount of first party benefits that are paid or payable;^[2]3 or

(h) any person while:

(1) committing an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer;²

(2) operating a motor vehicle in a race or speed test;²

(3) operating or occupying a motor vehicle known to that person to be stolen;² or

(4) repairing, servicing or otherwise maintaining a motor vehicle if [such] the 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;^[3]2

Footnote 3 of Section 65-1.1 is amended to read as follows:

³ [These exclusions] This exclusion may be deleted, in the event the Company wishes to provide coverage under the indicated [circumstances] circumstance. Alternatively, the Company may delete the cause of action language only, provided, however, that, in either case, if the Company deletes this language, then the Company will be deemed to have waived its right to bring a cause of action against the person.

The "Exclusions" provision set forth in Subdivision (c) of Section 65-1.3 is amended to read as follows:

Exclusions

This coverage does not apply to personal injury sustained by:

(g) any person as a result of operating a motor vehicle while in an intoxicated condition or while his or her ability to operate [such] the vehicle is impaired by the use of a drug (within the meaning of section 1192 of the New York Vehicle and Traffic Law) except that coverage shall apply to necessary emergency health services rendered in a general hospital, as defined in section 2801(10) of the New York Public Health Law, including ambulance services attendant thereto and related medical screening. However, where the person has been convicted of violating section 1192 of the New York Vehicle and Traffic Law while operating a motor vehicle in an intoxicated condition or while his or her ability to operate such vehicle is impaired by the use of a drug, and the conviction is a final determination, the Company has a cause of action against such person for the amount of first party benefits that are paid or payable;^[13]14 or

Footnotes 14 through 18 of Sections 65-1.3 and 65-1.4 are renumbered to be Footnotes 15 through 19, respectively. A new Footnote 14 is added to read as follows:

¹⁴ This exclusion may be deleted, in the event the Company wishes to provide coverage under the indicated circumstance. Alternatively, the Company may delete the cause of action language only, provided, however, that, in either case, if the Company deletes this language, then the Company will be deemed to have waived its right to bring a cause of action against the person.

The "Exclusions" provision set forth in Subdivision (j) of Section 65-2.3 is amended to read as follows:

Exclusions

This requirement for payment by a self-insurer of first-party benefits does not apply to personal injury sustained by:

(j) any person as a result of operating a motor vehicle while in an intoxicated condition or while his or her ability to operate such vehicle is impaired by the use of a drug (within the meaning of section 1192 of the New York Vehicle and Traffic Law) except that coverage shall apply to necessary emergency health services rendered in a general hospital, as defined in section 2801(10) of the New York Public Health Law, including ambulance services attendant thereto and related medical screening. However, where the person has been convicted of violating section 1192 of the New York Vehicle and Traffic Law while operating a motor vehicle in an intoxicated condition or while his or her ability to operate such vehicle is impaired by the use of a drug, and the conviction is a final determination, the self-insurer has a cause of action against such person for the amount of first party benefits that are paid or payable; or

Text of proposed rule and any required statements and analyses may be obtained from:

Andrew Mais, NYS Insurance Department, 25 Beaver Street, New York, NY 10004, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Buffy Cheung, NYS Insurance Department, 25 Beaver Street, New York, NY 10004, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Consensus Rule Making Determination

Sections 201, 301, 2307, 5103 and 5221 of the Insurance Law authorizes the Superintendent to promulgate regulations governing charges for professional health services under no-fault.

Chapter 303 of the Laws of 2010 amended Insurance Law § 5103(b)(2) to prohibit a no-fault insurer from excluding from coverage necessary emergency health services rendered in a general hospital (as defined in Public Health Law § 2801(10)) including ambulance services attendant thereto and related medical screening, for any person who is injured as a result of operating a motor vehicle while in an intoxicated condition or while the person's ability to operate the vehicle is impaired by the use of a drug within the meaning of Vehicle and Traffic Law § 1192. Chapter 303 also permits a no-fault insurer to maintain a cause of action against the covered person for the amount of first party benefits paid or payable on behalf of the covered person if such person is found to have violated Vehicle and Traffic Law § 1192.

No person is likely to object to the proposed rules as they are revising The Mandatory Personal Injury Protection Endorsement (New York), the Additional Personal Injury Protection Endorsement (New York) and the rights and liabilities of self-insurers in order to comply with Chapter 303 of the Laws of 2010.

Job Impact Statement

The proposed rules are required in order to comply with Chapter 303 of the Laws of 2010. The proposed rules should have no adverse impact on jobs or economic opportunities in New York State as the rules merely revise The Mandatory Personal Injury Protection Endorsement (New York), the Additional Personal Injury Protection Endorsement (New York) and the rights and liabilities of self-insurers in order to comply with Chapter 303.