§431:10C-303.5  U-drive insurance
policy; primary.  (a)  A U-drive motor vehicle insurance policy shall be
primary; provided that its bodily injury and property damage liability
coverages shall be secondary to the operator's or renter's motor vehicle insurance
policy if:



(1)  The U-drive rental business provides any claimant
or person sustaining accidental harm or damages, as a result of the operation
of the rental vehicle, the identity and address of the operator or renter,
along with any information available to the U-drive rental business as to the
identity and address of any insurer under any liability policies applicable to
the operator or renter; provided that the U-drive rental business shall make
reasonable efforts to obtain such information;



(2)  A suit may be filed and service upon the
responsible operator or renter can be effectuated; and



(3)  An insurer responds on behalf of the operator or
renter to a claim or suit.



(b)  In cases where the U-drive motor vehicle
insurance policy is primary because of:



(1)  A failure of a renter or operator to cooperate
with the U-drive rental business in providing the information described in
subsection (a)(1);



(2)  The failure to file suit and effectuate service
as described in subsection (a)(2); or



(3)  The failure of an insurer to respond as described
in subsection (a)(3) or defend a claim or pay required benefits or a judgment;



the U-drive rental business may recover from the
renter, operator, or insurer, the sums the U-drive rental business expended in
payments or benefits, along with reasonable attorneys' fees and expenses. [L
1997, c 251, pt of §2; am L 1998, c 275, §20]



 



Case Notes



 



  Even if certain defendants were secondarily liable, this
statute seemed to preclude such a finding until after plaintiff had prosecuted
claims against the vehicle renter's auto insurance company, the primary source
of coverage for bodily injury and property damages.  Plaintiff's bodily injury
and property damage claims against those defendants should be dismissed without
prejudice; plaintiff must first pursue an action against the insured vehicle
renter.  255 F. Supp. 2d 1149.



  Rent-a-car company's rental agreement provision, which
attempted to shift primary responsibility for providing minimum insurance
coverage to the renter's personal insurance policy, violated the public policy
enumerated in this chapter.  88 H. 274, 965 P.2d 1274.



  The owner of a vehicle has the primary obligation to provide
minimum coverage for the owned vehicle and this obligation may not be avoided
through a unilateral contract with a permissive user of the vehicle.  88 H.
274, 965 P.2d 1274.



  Where section does not expressly indicate an intent to be
applied retroactively and retroactive application would have increased
obligations of permissive user's insurance company, enactment of this section
has no effect on causes of action arising before its effective date of January
1, 1998.  88 H. 274, 965 P.2d 1274.