INS-01-11-00012-E Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act

1/5/11 N.Y. St. Reg. INS-01-11-00012-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 1

January 05, 2011

RULE MAKING ACTIVITIES

INSURANCE DEPARTMENT

EMERGENCY RULE MAKING

 

I.D No. INS-01-11-00012-E

Filing No. 1307

Filing Date. Dec. 20, 2010

Effective Date. Jan. 26, 2011

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 action:

Action taken:

Amendment of 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

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

Chapter 303 of the Laws of 2010 amended Insurance Law § 5103(b)(2) to prohibit an insurer from excluding from coverage 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, and who receives necessary emergency health services rendered in a general hospital, including ambulance services attendant thereto and related medical screening. The amendment permits an 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.

Chapter 303 of the Laws of 2010 becomes effective on January 26, 2011 and it is essential that this amendment be promulgated on an emergency basis in order to have the proper endorsements in place to inform the insurance industry and the public of the new provisions in the law. The amendment revises two endorsements to comply with Chapter 303.

Chapter 303 of the Laws of 2010 becomes effective on January 26, 2011 and it is essential that this amendment be promulgated on an emergency basis in order to inform self-insurers of the new provisions in the law.

For the reasons cited above, this amendment is being promulgated on an emergency basis for the preservation of the general welfare.

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 emergency 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

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire March 19, 2011.

Text of 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]

Regulatory Impact Statement, Regulatory Flexibility Analysis and Rural Area Flexibility Analysis

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.

These regulatory actions are technical amendments, required to comply with Chapter 303 of the Laws of 2010. No Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Businesses and Local Governments, or Rural Area Flexibility Analysis are necessary.

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.