W. Va. Code R. § 114-63-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-63-5 - Underinsured Motor Vehicle Provisions

5.1. If selected by the insured, policies must include a provision agreeing to pay the insured all sums which he or she shall be legally entitled to recover as damages from the owner or operator of an underinsured motor vehicle up to the limits selected by the insured. W. Va. Code § 33-6-31(b).

5.2. Underinsured motor vehicle coverage shall not provide for setoff for any payments made by the insured's policy or any other policy. W. Va. Code § 33-6-31(b).

5.3. Underinsured motor vehicle coverage shall not contain a provision requiring arbitration. W. Va. Code § 33-6-31(g).

5.4. Underinsured motor vehicle coverage may contain a provision requiring that the insured use reasonable diligence, upon learning that the tortfeasor is underinsured, to provide notice of any potential underinsured motorist claim within a reasonable period of time.

5.5. Underinsured motor vehicle coverage may contain a provision requiring notice of any settlement with the liability carrier consistent with W. Va. Code § 33-6-31e.

5.6. Underinsured motor vehicle coverage may contain a provision excluding benefits for injuries which result from a motor vehicle collision which occurs within the course and scope of employment but only with respect to the fault of the employer or co-employee and not with regard to the fault of a third party.

5.7. With regard to underinsured motor vehicle coverage in the event of negligence by an unknown tortfeasor, the policy may contain a provision requiring a close and substantial physical nexus between the unidentified hit and run vehicle and the insured vehicle. "Close and Substantial Physical Nexus" means evidence which can be established by independent third party testimony to the satisfaction of the trial judge and the jury that, but for the immediate evasive action of the insured, direct physical contact would have incurred between the unknown vehicle and the victim.

5.8. Underinsured motor vehicle coverage may contain a provision providing for the right of subrogation against the tortfeasor, up to the amount paid under the underinsured motor vehicle endorsement, consistent with W. Va. Code § 33-6-31(f).

5.9. Underinsured motor vehicle coverage may contain family member or similar exclusion precluding a guest passenger from collecting such benefits with respect to the negligence of the driver of the motor vehicle in which he or she is riding but such guest passenger may not be precluded from recovery of underinsured benefits with respect to the negligence of a third party.

5.10. Underinsured motor vehicle coverage may contain a provision precluding intra-policy stacking and inter-policy stacking.

5.11. Underinsured motor vehicle coverage may contain a family use exclusion to be applied when a passenger family member receives payment under the liability provisions with respect to the negligence of his or her driver thereby preventing the underinsured coverage from being converted into additional liability coverage.

5.12. Underinsured motor vehicle coverage may include a provision precluding recovery of underinsured benefits if the liability coverage of the tortfeasor with respect to whose negligence benefits are sought has not been exhausted.

5.13. Underinsured motor vehicle coverage may include a provision precluding benefits if the claimant is in an owned but not insured motor vehicle.

5.14. Underinsured motor vehicle coverage may include an exclusion for punitive damage liability.

W. Va. Code R. § 114-63-5