§431:10C-305  Source of payment.

(a)  (1)  A claim for personal injury protectionbenefits for accidental harm of a person who is not an occupant of any motorvehicle involved in a motor vehicle accident may be made against the insurer ofany involved vehicle; and

(2)  The insurer against whom the claim is assertedshall process and pay the claim as if wholly responsible, but the insurer shallthereafter be entitled to recover from the insurer of all other involvedvehicles proportionate contribution for the benefits paid and the cost ofprocessing the claim.

(b)  (1)  Except as provided in paragraph (2),personal injury protection benefits shall be paid primarily from the followingsources in the following conditions:

(A)  The insurance on the vehicle occupied bythe injured person at the time of the accident; or

(B)  The insurance on the vehicle which causedaccidental harm if the injured person is a pedestrian (including a bicyclist).

Ifthere is no insurance on the vehicle, any other motor vehicle insuranceapplicable to the injured person shall apply.

Noperson shall recover personal injury protection benefits from more than oneinsurer for accidental harm as a result of the same accident;

(2)  All personal injury protection benefits shall bepaid secondarily and net of any benefits a person is entitled to receivebecause of the accidental harm from workers' compensation laws; provided that:

(A)  The total amount a person is entitled toreceive for monthly earnings loss under this article shall be limited to theamount of any applicable coverage under section 431:10C-302, without anydeduction of any amount received as compensation for lost earnings under anyworkers' compensation law;

(B)  The aggregate of the payments from bothsources shall not exceed eighty per cent of the person's monthly earnings asprovided in section 431:10C-302(a)(4).  However, if the person's employerprovides both workers' compensation and personal injury protection payments,the aggregate shall not exceed the person's net monthly earnings (computed bysubtracting the total of federal and state income taxes and employee socialsecurity contributions from the gross monthly earnings), provided that theworkers' compensation payments shall not be less than required by chapter 386;and

(C)  This section shall not apply to benefitspayable to a surviving spouse and any surviving dependent as provided undersection 431:10C-304.

If the person does not collect such benefitsunder the workers' compensation laws by reason of the contest of this right toso collect by the person or organization responsible for payment thereof, theinjured person, if otherwise eligible, shall, nevertheless, be entitled toreceive personal injury protection benefits and, upon payment thereof, the personalinjury protection insurer shall be subrogated to the injured person's rights tocollect such benefits.

(c)  (1)  If a temporary substitute vehicle is madeavailable to a customer by an auto repair shop registered with the motorvehicle repair industry board or a motor vehicle dealer licensed by the motorvehicle industry licensing board, while the shop or dealer repairs or servicesthe customer's insured motor vehicle, the motor vehicle insurance policy of thecustomer's insured motor vehicle shall be primary over the policy on thetemporary substitute vehicle; and

(2)  In the event that a customer's insured motorvehicle is operated by a registered repair shop in the course of service orrepair, or to verify repairs, the motor vehicle insurance policy of theregistered repair shop shall be primary over the policy on the customer'sinsured motor vehicle.

(d)  The following persons are not eligible toreceive payment of personal injury protection benefits:

(1)  Occupants of a motor vehicle other than theinsured motor vehicle;

(2)  Operator or user of a motor vehicle engaging incriminal conduct which causes any loss; or

(3)  Operator of a motorcycle or motor scooter asdefined in section 286-2.

This subsection shall not preclude recovery in othercapacities under a motor vehicle insurance policy covering a vehicle which theperson did not occupy at the time of the accident. [L 1987, c 347, pt of §2; amL 1989, c 208, §4; am L 1991, c 149, §1; am L 1997, c 251, §42]

 

Case Notes

 

  Section does not toll §431:10C-315's statute of limitations;section requires workers' compensation claim to be paid prior to any no-faultbenefits payments.  794 F. Supp. 1012.

  Owned vehicle exclusion in policy is valid because it isconsistent with section and legislative intent of no-fault law.  73 H. 552, 836P.2d 1074.