§431:10C-311  Total loss motor vehicleclaims:  cash settlement.  (a)  When an insurer elects under section431:10C-309 to offer the insured a cash settlement for a total loss motorvehicle claim, the following shall apply:

(1)  The cash settlement shall be based upon theretail value of the motor vehicle as determined from a source or sources whichare reflective of the market value of the total loss vehicle.

(2)  The use of dealer quotations (when the vehicle isavailable at the quoting dealer's lot) and newspaper advertisements may be usedin lieu of the source generally used by the insurer, if the claim file reflectsthat the vehicle was not quoted in the source generally used by the insurer orthe source was not reflective of the market value.  Dealer quotations andnewspaper advertisements shall not be considered sole sources reflective ofmarket values.  When dealer quotations are used, the vehicle identificationnumber shall be contained in the insured's claim file;

(3)  Estimates from at least three licensed dealersmay be used when vehicles are not quoted in the source usually used by theinsurer and are not available for replacement.  Dealer estimates shall takeinto consideration the condition of the insured vehicle prior to the loss; and

(4)  The documentation of the determination of thetotal loss vehicle market value shall be maintained in the insurer's claimfile.

(b)  If within thirty days of the receipt ofthe settlement by the insured (i) the insured cannot purchase a comparablevehicle of like kind and quality for the market value determined by the insurerbefore applicable deductions, and (ii) the insured has located, but notpurchased, a comparable vehicle of like kind and quality in excess of suchmarket value, the following procedure shall apply:

(1)  The insurer shall locate a comparable vehicle oflike kind and quality for the insured for the market value determined by theinsurer at the time of settlement.  Any comparable vehicle shall be availablethrough licensed dealers;

(2)  The insurer shall either pay the insured thedifference between the market value before applicable deductions and the costof the comparable vehicle of like kind and quality which the insured haslocated, or negotiate and effect the purchase of this vehicle for the insured;

(3)  The insurer may conclude the loss settlement asprovided for under the appraisal section of the insurance contract in force atthe time of loss.  This appraisal shall be considered as binding against bothparties, but shall not preclude or waive any other rights either party hasunder the insurance contract or at common law; or

(4)  The insurer shall provide written notice to theinsured at the time of settlement that if within thirty days of the receipt ofthe settlement by the insured, the insured cannot purchase a comparable vehicleof like kind and quality for the market value determined by the insurer beforeapplicable deductions and the insured has located, but not purchased acomparable vehicle of like kind and quality in excess of such market value, theinsurer shall reopen its claim file.

(c)  Deductions of the kind commonly referredto as "get ready to go" and "dealer prep" or dealerpreparation charges are prohibited. [L 1987, c 347, pt of §2]