Regulation No. 68 (11 NYCRR 65): Regulations Implementing The .

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NEW YORK STATEINSURANCE DEPARTMENTREGULATION NO. 68(11 NYCRR 65)REGULATIONS IMPLEMENTING THE COMPREHENSIVEMOTOR VEHICLE INSURANCE REPARATIONS ACTI, Gregory V. Serio, Acting Superintendent of Insurance of the State of NewYork, pursuant to the authority granted by sections 201, 301, 2601, 5221 and article51 of the Insurance Law and section 2407 of the Vehicle and Traffic Law, do herebyrepeal Part 65 of Title 11 of the Official Compilation of Codes, Rules andRegulations of the State of New York (Regulation No. 68), and do herebypromulgate the following new Part 65 and Subparts 65-1, 65-2, 65-3 and 65-4 ofTitle 11 of the Official Compilation of Codes, Rules and Regulations of the State ofNew York (Regulation No. 68), to take effect on September 1, 2001 after publicationin the State Register.(All Matter Is New)Subpart 65-1Subpart 65-2Subpart 65-3Subpart 65-4Prescribed Policy EndorsementsRights and Liabilities of Self-insurersClaims for Personal Injury Protection benefitsArbitration11 NYCRR 65-1(Regulation 68-A)Prescribed Policy Endorsements65-1.1 Requirements for minimum benefit insurance policies for personalinjuries. (a) Every owner’s policy of liability insurance issued in satisfaction of theminimum requirements of article 6 or 8 of the Vehicle and Traffic Law and article 51of the Insurance Law shall contain provisions providing minimum first-party benefitsequal to those set out below in the mandatory personal injury protectionendorsement (New York), or mandatory personal injury protection endorsement motorcycles (New York), respectively.(b) The Mandatory Personal Injury Protection Endorsement (New York) and theMandatory Personal Injury Protection Endorsement - Motorcycles (New York) set outbelow are approved and promulgated for use by an insurer and, except as providedin 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 afterSeptember 1, 2001; and

2(2) enclosed with the first renewal policies renewed on and afterSeptember 1, 2001.(c) The Mandatory Personal Injury Protection Endorsement - All-TerrainVehicles (New York), set out below is approved and promulgated for use by aninsurer and, except as provided in section 65-1.7 of this Subpart, must be issuedwith every liability policy covering an All-Terrain Vehicle as required by section 2407of article 48-C of the New York Vehicle and Traffic Law and Subpart 64-2 of this Titleand must be:(1) furnished to all new insureds with policies effective on and afterSeptember 1, 2001; and(2) enclosed with the first renewal policies renewed on and afterSeptember 1, 2001.(d) Mandatory Personal Injury Protection EndorsementMANDATORY PERSONAL INJURY PROTECTION ENDORSEMENT(New York)The Company agrees with the named insured, as follows:Section IMandatory Personal Injury ProtectionThe company will pay first-party benefits to reimburse for basic economic losssustained by an eligible injured person on account of personal injuries caused by anaccident arising out of the use or operation of a motor vehicle or a motorcycle duringthe policy period and within the United States of America, its territories orpossessions, or Canada.First-party BenefitsFirst-party benefits, other than death benefits, are payments equal to basiceconomic loss, reduced by the following:(a) 20 percent of the eligible injured person’s loss of earnings fromwork to the extent that an eligible injured person’s basic economicloss consists of such loss of earnings;(b) amounts recovered or recoverable on account of personal injury toan eligible injured person under State or Federal laws providingsocial security disability or workers’ compensation benefits, or

3disability benefits under article 9 of the New York Workers’Compensation Law;(c) the amount of any applicable deductible, provided that suchdeductible shall apply to each accident, but only to the total of firstparty benefits otherwise payable to the named insured and anyrelative as a result of that accident.Basic Economic LossBasic economic loss shall consist of medical expense, work loss, other expenseand, when death occurs, a death benefit as herein provided. Except for such deathbenefit, basic economic loss shall not include any loss sustained on account ofdeath. Basic economic loss of each eligible injured person on account of any singleaccident shall not exceed 50,000, except that any death benefit hereunder shall bein addition thereto.Medical ExpenseMedical expense shall consist of necessary expenses for:(a) medical, hospital (including services rendered in compliance withArticle 41 of the Public Health Law, whether or not such services arerendered directly by a hospital), surgical, nursing, dental, ambulance,X-ray, prescription drug and prosthetic services;(b) psychiatric, physical and occupational therapy and rehabilitation;(c) any nonmedical remedial care and treatment rendered in accordancewith a religious method of healing recognized by the laws of New York;and(d) any other professional health services.These medical expenses will not be subject to a time limitation, provided that,within one year after the date of the accident, it is ascertainable that further medicalexpenses may be sustained as a result of the injury. Payments hereunder fornecessary medical expenses shall be subject to the limitations and requirements ofsection 5108 of the New York Insurance Law.Work LossWork loss shall consist of the sum of the following losses and expenses, up to amaximum payment of 2,000 per month for a maximum period of three years fromthe date of the accident:(a) loss of earnings from work which the eligible injured person would haveperformed had such person not been injured, except that an employeewho is entitled to receive monetary payments, pursuant to statute orcontract with the employer, or who receives voluntary monetary

4benefits paid for by the employer, by reason of such employee’sinability to work because of personal injury arising out of the use oroperation of a motor vehicle or a motorcycle, shall not be entitled toreceive first-party benefits for loss of earnings from work to the extentthat such monetary payments or benefits from the employer do notresult in the employee suffering a reduction in income or a reduction insuch employee’s level of future benefits arising from a subsequentillness or injury; and(b) reasonable and necessary expenses sustained by the eligible injuredperson in obtaining services in lieu of those which such person wouldhave performed for income.Other ExpensesOther expenses shall consist of all reasonable and necessary expenses, otherthan medical expense and work loss, up to 25 per day for a period of one year fromthe date of the accident causing injury.Death BenefitUpon the death of any eligible injured person, caused by an accident to whichthis coverage applies, the company will pay to the estate of such person a deathbenefit of 2,000.Eligible Injured PersonSubject to the exclusions and conditions set forth below, an eligible injuredperson is:(a) the named insured and any relative who sustains personal injury arisingout of the use or operation of any motor vehicle;(b) the named insured and any relative who sustains personal injury arisingout of the use or operation of any motorcycle, while not occupying amotorcycle;(c) any other person who sustains personal injury arising out of the use oroperation of the insured motor vehicle in the State of New York whilenot occupying another motor vehicle; or(d) any New York State resident who sustains personal injury arising out ofthe use or operation of the insured motor vehicle outside of New Yorkwhile not occupying another motor vehicle.ExclusionsThis coverage does not apply to personal injury sustained by:

5(a) the named insured while occupying, or while a pedestrian throughbeing struck by, any motor vehicle owned by the named insured withrespect to which the coverage required by the New YorkComprehensive Motor Vehicle Insurance Reparations Act is not ineffect;(b) any relative while occupying, or while a pedestrian through being struckby, any motor vehicle owned by the relative with respect to which thecoverage required by the New York Comprehensive Motor VehicleInsurance Reparations Act is not in effect;(c) the named insured or relative while occupying, or while a pedestrianthrough being struck by, a motor vehicle in New York State, other thanthe insured motor vehicle, with respect to which the coverage requiredby the New York Comprehensive Motor Vehicle Insurance ReparationsAct is in effect; however, this exclusion does not apply to personalinjury sustained in New York State by the named insured or relativewhile occupying a bus or school bus, as defined in sections 104 and142 of the New York Vehicle and Traffic Law, unless that person is theoperator, an owner, or an employee of the owner or operator, of suchbus or school bus;[(d) any person in New York State while occupying the insured motorvehicle which is a bus or school bus, as defined in sections 104 and142 of the New York Vehicle and Traffic Law, but only if such person isa named insured or relative under any other policy providing thecoverage required by the New York Comprehensive Motor VehicleInsurance Reparations Act; however, this exclusion does not apply tothe operator, an owner, or an employee of the owner or operator, of1such bus or school bus;](e) any person while occupying a motorcycle;2(f) any person who intentionally causes his or her own personal injury ;(g) any person as a result of operating a motor vehicle while in anintoxicated condition or while his ability to operate such vehicle isimpaired by the use of a drug (within the meaning of section 1192 of2the New York Vehicle and Traffic Law); or(h) any person while:(1) committing an act which would constitute a felony, or seeking to2avoid lawful apprehension or arrest by a law enforcement officer;(2) operating a motor vehicle in a race or speed test;12Language in brackets may be deleted if the insured motor vehicle is not a bus or school bus.These exclusions may be deleted, in the event the Company wishes to provide coverageunder the indicated circumstances.2

6(3) operating or occupying a motor vehicle known to that person to be2stolen; or(4) repairing, servicing or otherwise maintaining a motor vehicle if suchconduct is within the course of a business of repairing, servicing orotherwise maintaining a motor vehicle and the injury occurs on the3business premises;(i) the named insured or relative while not occupying a motor vehicle or amotorcycle when struck by a motorcycle in New York State with respectto which the coverage required by the New York Comprehensive MotorVehicle Insurance Reparations Act is in effect;(j) any New York State resident other than the named insured or relativeinjured through the use or operation of the insured motor vehicleoutside of New York State if such resident is the owner or a relative ofthe owner of a motor vehicle insured under another policy providing thecoverage required by the New York Comprehensive Motor VehicleInsurance Reparations Act;(k) any New York State resident other than the named insured or relativeinjured through the use or operation of the insured motor vehicleoutside of New York State if such resident is the owner of a motorvehicle for which the coverage required by the New YorkComprehensive Motor Vehicle Insurance Reparations Act is not ineffect.Other DefinitionsWhen used in reference to this coverage:(a) the “insured motor vehicle” means a motor vehicle owned by the namedinsured and to which the bodily injury liability insurance of this policyapplies and for which a specific premium is charged;(b) “motorcycle” means a vehicle as defined in section 123 of the New YorkVehicle and Traffic Law and which is required to carry financial securitypursuant to article 6, 8 or 48-A of the Vehicle and Traffic Law;(c) “motor vehicle” means a motor vehicle, as defined in section 311 of theNew York Vehicle and Traffic Law, and also includes fire and policevehicles, but shall not include any motor vehicle not required to carryfinancial security pursuant to article 6, 8 or 48-A of the Vehicle andTraffic Law, or a motorcycle as defined above;3These exclusions may be deleted, in the event the Company wishes to provide coverageunder the indicated circumstances.

7(d) “named insured” means the person or organization named [in the4declarations];(e) “occupying” means in or upon or entering into or alighting from;(f) “personal injury” means bodily injury, sickness or disease;(g) “relative” means a spouse, child, or other person related to the namedinsured by blood, marriage, or adoption (including a ward or fosterchild), who regularly resides in the insured’s household, including anysuch person who regularly resides in the household, but is temporarilyliving elsewhere; and(h) “use or operation” of a motor vehicle or a motorcycle includes theloading or unloading of such vehicle.ConditionsAction Against Company. No action shall lie against the Company unless, as acondition precedent thereto, there shall have been full compliance with the terms ofthis coverage.Notice. In the event of an accident, written notice setting forth details sufficientto identify the eligible injured person, along with reasonably obtainable informationregarding the time, place and circumstances of the accident, shall be given by, or onbehalf of, each eligible injured person, to the Company, or any of the Company’sauthorized agents, as soon as reasonably practicable, but in no event more than 30days after the date of the accident, unless the eligible injured person submits writtenproof providing clear and reasonable justification for the failure to comply with suchtime limitation. If an eligible injured person or that person’s legal representativeinstitutes a proceeding to recover damages for personal injury under section 5104(b)of the New York Insurance Law, a copy of the summons and complaint or otherprocess served in connection with such action shall be forwarded as soon aspracticable to the Company or any of the Company’s authorized agents by sucheligible injured person or that person’s legal representative.Proof of Claim; Medical, Work Loss, and Other Necessary Expenses. In thecase of a claim for health service expenses, the eligible injured person or thatperson’s assignee or representative shall submit written proof of claim to theCompany, including full particulars of the nature and extent of the injuries andtreatment received and contemplated, as soon as reasonably practicable but, in noevent later than 45 days after the date services are rendered. The eligible injuredperson or that person’s representative shall submit written proof of claim for workloss benefits and for other necessary expenses to the Company as soon asreasonably practicable but, in no event, later than 90 days after the work loss isincurred or the other necessary services are rendered. The foregoing time limitationsfor the submission of proof of claim shall apply unless the eligible injured person orthat person’s representative submits written proof providing clear and reasonable4Companies may substitute the appropriate term, reference or language for the matter set outin brackets.

8justification for the failure to comply with such time limitation. Upon request by theCompany, the eligible injured person or that person’s assignee or representativeshall:(a) execute a written proof of claim under oath;(b) as may reasonably be required submit to examinations under oath byany person named by the Company and subscribe the same;(c) provide authorization that will enable the Company to obtain medicalrecords; and(d) provide any other pertinent information that may assist the Company indetermining the amount due and payable.The eligible injured person shall submit to medical examination by physiciansselected by, or acceptable to, the Company, when, and as often as, the Companymay reasonably require.Arbitration. In the event any person making a claim for first-party benefits andthe Company do not agree regarding any matter relating to the claim, such personshall have the option of submitting such disagreement to arbitration pursuant toprocedures promulgated or approved by the Superintendent of Insurance.Reimbursement and Trust Agreement. To the extent that the Company paysfirst-party benefits, the Company is entitled to the proceeds of any settlement orjudgment resulting from the exercise of any right of recovery for damages forpersonal injury under section 5104(b) of the New York Insurance Law. TheCompany shall have a lien upon any such settlement or judgment to the extent thatthe Company has paid first-party benefits. An eligible injured person shall:(a) hold in trust, for the benefit of the Company, all rights of recovery whichthat person shall have for personal injury under section 5104(b) of theNew York Insurance Law;(b) do whatever is proper to secure, and shall do nothing to prejudice, suchrights; and(c) execute, and deliver to the Company, instruments and papers as maybe appropriate to secure the rights and obligations of such person andthe Company established by this provision.An eligible injured person shall not compromise an action to recover damagesbrought under section 5104(b) of the New York Insurance Law, except:(a) with the written consent of the Company;(b) with approval of the court; or(c) where the amount of the settlement exceeds 50,000.

9Other Coverage. Where more than one source of first-party benefits requiredby article 51 of the New York Insurance Law and article 6 or 8 of the New YorkVehicle and Traffic Law is available and applicable to an eligible injured person inany one accident, this Company is liable to an eligible injured person only for anamount equal to the maximum amount that the eligible injured person is entitled torecover under this coverage, divided by the number of available and applicablesources of required first-party benefits. An eligible injured person shall not recoverduplicate benefits for the same elements of loss under this coverage or any othermandatory first-party motor vehicle or no-fault motor vehicle insurance coverageissued in compliance with the laws of another state.If the eligible injured person is entitled to benefits under any such mandatoryfirst-party motor vehicle or no-fault motor vehicle insurance for the same elements ofloss under this coverage, this Company shall be liable only for an amount equal tothe proportion that the total amount available under this coverage bears to the sumof the amount available under this coverage and the amount available under suchother mandatory insurance for the common elements of loss. However, whereanother state’s mandatory first-party or no-fault motor vehicle insurance law providesunlimited coverage available to an eligible injured person for an element of lossunder this coverage, the obligation of this Company is to share equally for thatelement of loss with such other mandatory insurance until the 50,000, or 75,000 ifOptional Basic Economic Loss (OBEL) coverage is purchased, limit of this coverageis exhausted by the payment of that element of loss and any other elements of loss.Section IIExcess CoverageIf motor vehicle medical payments coverage or any disability coverages oruninsured motorists coverage are afforded under this policy, such coverages shallbe excess insurance over any Mandatory PIP, OBEL or Additional PIP benefits paidor payable, or which would be paid or payable but for the application of a deductible,under this or any other motor vehicle No-Fault insurance policy.Section IIIConstitutionalityIf it is conclusively determined by a court of competent jurisdiction that the NewYork Comprehensive Motor Vehicle Insurance Reparations Act, or any amendmentthereto, is invalid or unenforceable in whole or in part, then, subject to the approvalof the Superintendent of Insurance, the Company may amend this policy and mayalso recompute the premium for the existing or amended policy.These amendments and recomputations will be effective retroactively to thedate that such act or any amendment is deemed to be invalid or unenforceable inwhole or in part.***

10(e) Mandatory Personal Injury Protection Endorsement - MotorcyclesMANDATORY PERSONAL INJURY PROTECTION ENDORSEMENT5MOTORCYCLES - (New York)The company agrees with the named insured as follows:Section IMandatory Personal Injury ProtectionThe Company will pay first-party benefits to reimburse for basic economic losssustained by an eligible injured person on account of personal injuries caused by anaccident arising out of the use or operation of the insured motorcycle. This coverageapplies only to motorcycle accidents which occur during the policy period and withinthe State of New York.Eligible Injured PersonAn eligible injured person is any person who sustains a personal injury arisingout of the use or operation of the insured motorcycle while not occupying the insuredmotorcycle, any other motorcycle or a motor vehicle.First-party BenefitsFirst-party benefits, other than death benefits, are payments equal to basiceconomic loss, reduced by the following:(a) 20 percent of the eligible injured person’s loss of earnings from work tothe extent that an eligible injured person’s basic economic loss consistsof such loss of earnings;(b) amounts recovered or recoverable on account of personal injury to aneligible injured person under State or Federal laws providing socialsecurity disability or workers’ compensation benefits, or disabilitybenefits under article 9 of the New York Workers’ Compensation Law.Basic Economic LossBasic economic loss shall consist of medical expense, work loss, other expenseand, when death occurs, a death benefit as herein provided. Except for such deathbenefit, basic economic loss shall not include any loss sustained on account ofdeath. Basic economic loss of each eligible injured person on account of any singleaccident shall not exceed 50,000, except that any death benefit hereunder shall bein addition thereto.5This endorsement shall be issued only for insured motorcycles.

11Medical ExpenseMedical expense shall consist of necessary expenses for:(a) medical, hospital (including services rendered in compliance witharticle 41 of the Public Health Law, whether or not such services arerendered directly by a hospital), surgical, nursing, dental, ambulance,X-ray, prescription drug and prosthetic services;(b) psychiatric, physical and occupational therapy and rehabilitation;(c) any nonmedical remedial care and treatment rendered in accordancewith a religious method of healing recognized by the laws of New York;and(d) any other professional health services.These medical expenses will not be subject to a time limitation, provided thatwithin one year after the date of the accident it is ascertainable that further medicalexpenses may be sustained as a result of the injury. Payments hereunder fornecessary medical expenses shall be subject to the limitations and requirements ofsection 5108 of the New York Insurance Law.Work LossWork loss shall consist of the sum of the following losses and expenses, up to amaximum payment of 2,000 per month for a maximum period of three years fromthe date of the accident:(a) loss of earnings from work which the eligible injured person wouldhave performed had such person not been injured, except that anemployee who is entitled to receive monetary payments, pursuant tostatute or contract with the employer, or who receives voluntarymonetary benefits paid for by the employer, by reason of suchemployee’s inability to work because of personal injury arising out ofthe use or operation of a motorcycle, shall not be entitled to receivefirst-party benefits for loss of earnings from work to the extent thatsuch monetary payments or benefits from the employer do not result inthe employee suffering a reduction in income or a reduction in suchemployee’s level of future benefits arising from a subsequent illness orinjury; and(b) reasonable and necessary expenses sustained by the eligible injuredperson in obtaining services in lieu of those which such person wouldhave performed for income.Other Expenses

12Other expenses shall consist of all reasonable and necessary expenses, otherthan medical expense and work loss, up to 25 per day for a period of one year fromthe date of the accident causing injury.Death BenefitUpon the death of any eligible injured person, caused by an accident to whichthis coverage applies, the Company will pay to the estate of such person a deathbenefit of 2,000.Exclusions6This coverage does not apply:(a) to a personal injury sustained by any person who intentionally causeshis own personal injury;(b) to a personal injury sustained by any person while committing an actwhich would constitute a felony, or seeking to avoid lawfulapprehension or arrest by a law enforcement officer; or(c) to a personal injury sustained by a person while repairing, servicing, orotherwise maintaining a motor vehicle or motorcycle, if such conduct iswithin the course of a business of repairing, servicing, or otherwisemaintaining a motor vehicle or motorcycle and the injury occurs on thebusiness premises.Other DefinitionsWhen used in reference to this coverage:(a) “insured motorcycle” means a motorcycle owned by the named insuredand to which the bodily injury liability insurance of this policy appliesand for which a specific premium is charged;(b) “motorcycle” means a vehicle as defined in section 123 of the NewYork Vehicle and Traffic Law, and which is required to carry financialsecurity pursuant to article 6, 8 or 48-A of the Vehicle and Traffic Law;(c) “motor vehicle” means a motor vehicle, as defined in section 311 of theNew York Vehicle and Traffic Law, and also includes fire and policevehicles, but shall not include any motor vehicle not required to carryfinancial security pursuant to article 6, 8 or 48-A of the Vehicle andTraffic Law, or a motorcycle as defined above;(d) “named insured” means the person or organization named [in the7declaration];6These exclusions may be deleted, in the event the Company wishes to provide coverageunder the indicated circumstances.

13(e) “occupying” means in or upon or entering into or alighting from;(f) “personal injury” means bodily injury, sickness or disease;(g) “use or operation” of a motor vehicle or motorcycle includes theloading or unloading of such vehicle.ConditionsAction Against Company. No action shall lie against the Company unless, as acondition precedent thereto, there shall have been full compliance with the terms ofthis coverage.Notice. In the event of an accident, written notice setting forth details sufficientto identify the eligible injured person, along with reasonably obtainable informationregarding the time, place and circumstances of the accident, shall be given by, or onbehalf of, each eligible injured person, to the Company, or any of the Company’sauthorized agents, as soon as reasonably practicable, but in no event more than 30days after the date of the accident, unless the eligible injured person submits writtenproof providing clear and reasonable justification for the failure to comply with suchtime limitation. If an eligible injured person or that person’s legal representativeinstitutes a proceeding to recover damages for personal injury under section 5104(b)of the New York Insurance Law, a copy of the summons and complaint or otherprocess served in connection with such action shall be forwarded as soon aspracticable to the Company or any of the Company’s authorized agents by sucheligible injured person or that person’s legal representative.Proof of Claim; Medical, Work Loss, and Other Necessary Expenses. In thecase of a claim for health service expenses, the eligible injured person or thatperson’s assignee or representative shall submit written proof of claim to theCompany, including full particulars of the nature and extent of the injuries andtreatment received and contemplated, as soon as reasonably practicable but, in noevent later than 45 days after the date services are rendered. The eligible injuredperson or that person’s representative shall submit written proof of claim for workloss benefits and for other necessary expenses to the Company as soon asreasonably practicable but, in no event, later than 90 days after the work loss isincurred or the other necessary services are rendered. The foregoing time limitationsfor the submission of proof of claim shall apply unless the eligible injured personsubmits written proof providing clear and reasonable justification for the failure tocomply with such time limitation. Upon request by the Company, the eligible injuredperson or that person’s assignee or representative shall:(a) execute a written proof of claim under oath;(b) as may reasonably be required submit to examinations under oath byany person named by the Company and subscribe the same;7Companies may substitute the appropriate term, reference or language for the matter set outin brackets.

14(c) provide authorization that will enable the Company to obtain medicalrecords; and(d) provide any other pertinent information that may assist the Company indetermining the amount due and payable.The eligible injured person shall submit to medical examination by physiciansselected by, or acceptable to, the Company when, and as often as, the Companymay reasonably require.Arbitration. In the event any person making a claim for first-party benefits andthe Company do not agree regarding any matter relating to the claim, such personshall have the option of submitting such disagreement to arbitration pursuant toprocedures promulgated or approved by the Superintendent of Insurance.Reimbursement and Trust Agreement. To the extent that the Company paysfirst-party benefits, the Company is entitled to the proceeds of any settlement orju

NEW YORK STATE INSURANCE DEPARTMENT REGULATION NO. 68 (11 NYCRR 65) REGULATIONS IMPLEMENTING THE COMPREHENSIVE MOTOR VEHICLE INSURANCE REPARATIONS ACT I, Gregory V. Serio, Acting Superintendent of Insurance of the State of New York, pursuant to the authority granted by sections 201, 301, 2601, 5221 and article

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