Section 5201. Title and purpose.
5203. Motor vehicle accident indemnification corporation.
5204. Board of directors.nn
5205. Liability of directors and members.
5206. Powers of corporation.
5207. Assessments against members.
5208. Notice of claim.
5209. Investigation and defense of claims.
5210. Application for payment of judgment.
5211. Hearing on application for payment of judgment.
5212. Order for payment of judgment.
5213. Settlement of claims or actions.
5214. Default and consent judgments.
5215. Collusive judgments.
5216. Assignments of judgments to corporation.
5217. “Hit and run” causes of action.
5218. Procedure for “hit and run” cases.
5219. Disclaimer or denial of coverage cases.
5220. Notice of judgment to commissioner.
5221. “No-fault” benefits to qualified persons.
5222. Examination of corporation.
5224. Penalty for false statements.
5225. Exemption from taxation.
S 5201. Title and purpose.(a) This article may be cited as the “motor vehicle accident indemnification corporation act”. (b) The legislature finds and declares that the motor vehicle financial security act in the vehicle and traffic law, which requires the owner of a motor vehicle to furnish proof of financial security as a condition to registration, fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by:
(1) uninsured motor vehicles registered in a state other than New York,
(2) unidentified motor vehicles which leave the scene of the accident,
(3) motor vehicles registered in this state as to which at the time of the accident there was not in effect a policy of liability insurance,
(4) stolen motor vehicles,
(5) motor vehicles operated without the permission of the owner,
(6) insured motor vehicles where the insurer disclaims liability or denies coverage, and
(7) unregistered motor vehicles. In addition, this article is intended to provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle, as provided herein and in the comprehensive motor vehicle insurance reparations act. The legislature determines that it is a matter of grave concern that those persons are not recompensed for their injury and financial loss inflicted upon them and that the public interest can best be served by closing such gaps in the motor vehicle financial security act and the comprehensive motor vehicle insurance reparations act through the continued operation of the motor vehicle accident indemnification corporation.
S 5202. Definitions. In this article: (a) “Motor vehicle” means a motor vehicle as defined in section one hundred twenty-five of the vehicle and traffic law and also includes trailers, semi-trailers, motorcycles, tractors and snowmobiles as defined in subdivision three of section
21.05 of the parks, recreation and historic preservation law and shall exclude fire and police vehicles, self-propelled combines, self-propelled corn and hay harvesting machines and tractors used exclusively for agricultural purposes. (b) “Qualified person” means (i) a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative. It does not include any operator of or passenger on a snowmobile. In this subsection, “operator” means every person who operates or is in actual physical control of a snowmobile, whether or not it is under way. (c) “Insured motor vehicle” means a motor vehicle as to which there is maintained proof of financial security as defined in subdivision three of section three hundred eleven of the vehicle and traffic law or section
25.13 of the parks, recreation and historic preservation law.
(d) “Uninsured motor vehicle” means a motor vehicle other than a motor vehicle described in subsection
e) “Insurer” means any company authorized by the superintendent to do any form of motor vehicle liability insurance business in this state. (f) “Corporation” means the “motor vehicle accident indemnification corporation”.
(g) “Board” means the board of directors of the corporation.
(h) “Member” means any insurer authorized to write motor vehicle liability insurance in this state and any self-insurer subject to section three hundred sixteen or three hundred seventy of the vehicle and traffic law.
(i) “Insured” means a person defined as an insured under the coverage required by subsection
(f) of section three thousand four hundred twenty of this chapter.
(j) “Financially irresponsible motorist” means the owner, operator, or other person legally responsible for the operation of an uninsured motor vehicle involved in an accident resulting in personal injury or death who did not have in effect at the time of such accident either:
(1) a valid and collectible policy of bodily injury liability and property damage liability insurance or bond with applicable limits at least equal to those specified in section three hundred eleven of the vehicle and traffic law; or
(2) a certificate of self insurance issued by the department of motor vehicles pursuant to section three hundred sixteen of the vehicle and traffic law; or
(3) who has not otherwise complied with the provisions of section three hundred twelve of the vehicle and traffic law; or
(4) who does not have in effect at the time of such accident a valid and collectible policy of bodily injury liability and property damage liability insurance with applicable limits at least equal to those specified in section
25.13 of the parks, recreation and historic preservation law.
(k) “Commissioner” means the commissioner of motor vehicles.
(l) “Court” means the supreme court, the county court or the civil court of the city of New York, in the county where an action on the cause of action of the qualified person could properly be brought for trial.
S 5203. Motor vehicle accident indemnification corporation.
(a) The non-profit corporation known as the “motor vehicle accident indemnification corporation” shall be continued.
(b) Every insurer authorized to write motor vehicle liability insurance in this state, as a condition of its authorization, shall be and remain a member of the corporation.
(c) The corporation shall be obligated to provide the protection required by this article to a qualified person on account of a motor vehicle accident caused by owners or operators of motor vehicles occurring within the state.
S 5204. Board of directors. (a) The board of directors of the corporation shall be composed of nine persons. Seven of such directors shall be representatives of motor vehicle liability insurers, shall serve without compensation and be elected from among the members of the corporation by the members of the corporation, each of which members shall have one vote. In addition, the superintendent shall appoint two directors as representing broad segments of the public; one such director shall be a duly licensed insurance agent or broker and one shall have no affiliation with insurers or insurance producers.
(b) Each director shall serve for a term of two years. At the expiration of the initial term their successors in office shall serve for terms as fixed in the by-laws of the corporation.
S 5205. Liability of directors and members. (a) No director shall be individually liable for anything done or any liability incurred or assumed by virtue of this article and any such liability shall be collectible only from the corporation. (b) No member shall be subject to any liability except for unpaid assessments. S
5206. Powers of corporation. The corporation shall have the power: (a) To use a corporate seal, to contract, to sue and be sued, to adopt and amend by-laws and to exercise all powers necessary and convenient to accomplish the purposes of this article. (b) To prescribe, subject to the approval of the superintendent, the policy or endorsement form to be issued by the members embodying the coverage required by subsection (f) of section three thousand four hundred twenty of this chapter. (c) To provide for the investigation of any claim asserted by a qualified person against a financially irresponsible motorist. (d) To settle and pay any claim or judgment asserted by a qualified person against a financially irresponsible motorist. (e) To appear and defend, through attorneys representing the corporation, on behalf of the financially irresponsible motorist or on behalf of the corporation in any action brought against him or it as provided in subsection (b) of section five thousand two hundred nine of this article. (f) To levy and collect assessments against its members for any operating deficits of the corporation and for any funds required for its operation and to enforce payment by legal proceedings. (g) To borrow for its corporate purposes, with or without security, and to pledge any of its assets as security for such loan. Notes or other evidences of indebtedness of the corporation are legal investments for domestic property/casualty insurance companies and may be carried as admitted assets. (h) To pay expenses reasonably incurred by the corporation in the exercise of any of its powers.
S 5207. Assessments against members. (a) If at any time in the opinion of the board, the corporation shall require funds for the operation of its business, the board shall levy an assessment against the members of the corporation. (b) Each member shall be liable to the corporation for that portion of the assessment which the net direct written premiums written by the member, namely the gross direct written premiums less return premiums on such direct business, for policies insuring against legal liability arising out of the ownership, operation or maintenance of motor vehicles which are principally garaged in this state, shall bear to the total or aggregate of such net direct premiums written by all members in this state in the last complete calendar year as shown by the records of the superintendent. (c) In this section “member” also includes a former member which has withdrawn from the state or whose license has been revoked or which has been merged into another corporation or has been placed in liquidation, and such member or its successor shall be liable for all assessments under this section based upon premiums written by it in New York prior to the liquidation, withdrawal, revocation of license or merger. (d) The assessment of self-insurers under sections three hundred sixteen and three hundred seventy of the vehicle and traffic law shall be based upon the amount determined by dividing the amount of the annual assessment on insurers by the number of insured vehicles for the year preceding the determination.
S 5208. Notice of claim. (a) The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to: (1) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state, who files with the corporation within one hundred eighty days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:
(A) the person has a cause of action for damages arising out of the accident and setting forth the facts in support, (
B) the cause of action is against the owner or operator of a designated uninsured motor vehicle, and
(C) the person is making a claim for such damages. (2) (A) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:
(i) the person has the cause of action for damages arising out of the accident and setting forth the supporting facts,
(ii) the cause of action is against a person whose identity is unascertainable, and
(iii) the person is making a claim for those damages. (B) The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon as was reasonably possible.
(3) (A) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state, who files with the corporation an affidavit as a condition precedent to the right to apply for payment from the corporation, stating that:
(i) the person has a cause of action for damages arising out of the accident for damages and setting forth the supporting facts,
(ii) the insurers of the person alleged to be liable for the damages have disclaimed liability or denied coverage because of some act or omission of the person alleged to be liable including the denial of coverage based upon the lack of a policy of insurance in effect at the time the cause of action arose; provided, however, that in the case of a denial of coverage based upon the lack of a policy of insurance in effect at the time the cause of action arose, timely reasonable efforts had been made to ascertain insurance coverage, and
(iii) the person is making a claim for those damages.
(B) The affidavit shall be filed within one hundred eighty days of the affiant`s receipt of notice of the disclaimer or denial of coverage.
(b) If a qualified person fails to file the affidavit as provided in paragraphs one and two of subsection
(a) hereof within the specified period, or by reason of being an infant or mentally or physically incapacitated or deceased, is prevented from filing the affidavit as provided in paragraph three of such subsection within the specified period, or fails to file within one hundred eighty days, due to receipt of erroneous information from the department of motor vehicles or erroneous information from a police report with respect to identification of a vehicle, then upon a filing within thirty-one days of receipt of written notice of correction of the error by the department of motor vehicles or discovery of the mistake contained in the police report:
(1) The corporation may accept the filing of the affidavit if accompanied by proof satisfactory to it, of the facts which caused the delay and that it was not reasonably possible to file the affidavit within the specified period and that the affidavit was filed as soon as was reasonably possible.
(2) A court may upon like proof grant leave to file the affidavit within a reasonable time after the expiration of the specified period. In making its decision the court shall also and in particular consider, whether the corporation acquired actual knowledge of the essential facts constituting the claim within the time specified in paragraph one of subsection
(a) hereof or a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including whether:
(A) The claimant failed to file a timely affidavit by reason of the claimant`s justifiable reliance upon settlement representations made by a person believed to be the insurance representative of the financially irresponsible motorist.
(B) The claimant in filing made an excusable error concerning the identity or existence of the corporation against which the claim should or could be filed. (C) The delay in filing substantially prejudiced the corporation in maintaining a defense on the merits.
(c) Application to the court for leave to file must be made within one year from the beginning of the period for filing the affidavit, specified in paragraph one, two, or three of subsection
(a) hereof upon affidavit showing the evidentiary facts which are relied on in support of the proof required in subsection
(b) of this section, accompanied by a copy of the proposed affidavit. Notice of the return time together with a copy of the application must be served at least eight days before the time named for the hearing upon the corporation by delivery to the person designated by law as a person to whom a summons in an action in the supreme court issued against such party may be delivered
. (d) Every qualified person shall promptly furnish the corporation with copies of all papers in any action for the enforcement of every cause of action referred to in paragraph one, two, or three of subsection (a) hereof. (e) The commissioner shall furnish to the corporation, upon request, information as to whether any operator or owner of a motor vehicle involved in any accident had in effect at the time of the accident any motor vehicle liability insurance or other evidence that the motor vehicle was an insured motor vehicle. S 5209. Investigation and defense of claims.
(a) The corporation shall provide for the investigation of accidents and actions governed by this article it deems necessary. (b) The corporation may through counsel appear and defend in any action on its own behalf and on behalf of a defendant and take any other steps it deems appropriate including any appropriate method of review. All such acts shall be deemed to be the acts of the corporation and the defendant. (c) Nothing in this article shall deprive a defendant of the right also to employ counsel and defend the action. (d) In any case in which the corporation has assumed the defense of any action under this article, the defendant shall cooperate with the corporation in the defense of the action. In the event of the defendant`s failure to do so, the corporation may apply to the court for an order directing cooperation.