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

(1)  The U-drive rental business provides any claimantor person sustaining accidental harm or damages, as a result of the operationof 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 theidentity and address of any insurer under any liability policies applicable tothe operator or renter; provided that the U-drive rental business shall makereasonable efforts to obtain such information;

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

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

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

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

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

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

the U-drive rental business may recover from therenter, operator, or insurer, the sums the U-drive rental business expended inpayments or benefits, along with reasonable attorneys' fees and expenses. [L1997, c 251, pt of §2; am L 1998, c 275, §20]

 

Case Notes

 

  Even if certain defendants were secondarily liable, thisstatute seemed to preclude such a finding until after plaintiff had prosecutedclaims against the vehicle renter's auto insurance company, the primary sourceof coverage for bodily injury and property damages.  Plaintiff's bodily injuryand property damage claims against those defendants should be dismissed withoutprejudice; plaintiff must first pursue an action against the insured vehiclerenter.  255 F. Supp. 2d 1149.

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

  The owner of a vehicle has the primary obligation to provideminimum coverage for the owned vehicle and this obligation may not be avoidedthrough 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 beapplied retroactively and retroactive application would have increasedobligations of permissive user's insurance company, enactment of this sectionhas no effect on causes of action arising before its effective date of January1, 1998.  88 H. 274, 965 P.2d 1274.