§431:10C-305  Source of payment.



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



(2)  The insurer against whom the claim is asserted
shall process and pay the claim as if wholly responsible, but the insurer shall
thereafter be entitled to recover from the insurer of all other involved
vehicles proportionate contribution for the benefits paid and the cost of
processing the claim.



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



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



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



If
there is no insurance on the vehicle, any other motor vehicle insurance
applicable to the injured person shall apply.



No
person shall recover personal injury protection benefits from more than one
insurer for accidental harm as a result of the same accident;



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



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



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



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



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



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



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



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



(1)  Occupants of a motor vehicle other than the
insured motor vehicle;



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



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



This subsection shall not preclude recovery in other
capacities under a motor vehicle insurance policy covering a vehicle which the
person did not occupy at the time of the accident. [L 1987, c 347, pt of §2; am
L 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-fault
benefits payments.  794 F. Supp. 1012.



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