§431:10C-408  Assigned claims.  (a) Each person sustaining accidental harm, or such person's legal representative,may, except as provided in subsection (b), obtain the motor vehicle insurancebenefits through the plan whenever:

(1)  No liability or uninsured motorist insurancebenefits under motor vehicle insurance policies are applicable to theaccidental harm;

(2)  No such insurance benefits applicable to theaccidental harm can be identified; or

(3)  The only identifiable insurance benefits undermotor vehicle insurance policies applicable to the accidental harm will not bepaid in full because of financial inability of one or more self-insurers orinsurers to fulfill their obligations.

(b)  A person, or such person's legalrepresentative, shall be disqualified from receiving benefits through the planif:

(1)  Such person is disqualified for criminal conductunder section 431:10C-305(d) from receiving the motor vehicle insurancebenefits; or

(2)  Such person was:

(A)  The owner or registrant of the motorvehicle at the time of the motor vehicle's involvement in the accident out ofwhich such person's accidental harm arose;

(B)  The operator or any passenger of such avehicle at such time with reason to believe that such vehicle was an uninsuredmotor vehicle.

(c)  Any person eligible for benefits underthis part, and who becomes eligible to file a claim or an action against themandatory bodily injury liability or property damage liability policies, shall,upon the bureau's determination of eligibility, be entitled to:

(1)  The full personal injury protection benefits asif the victim had been covered as an insured at the time of the accidentproducing the accidental harm, but not including an owner, operator, orpassenger of a motorcycle or motor scooter, as defined in section 286-2, or apedestrian incurring accidental harm arising out of a motorcycle or motorscooter accident, as defined in section 431:10G-101; and

(2)  The rights of claim and action against theinsurer, assigned under section 431:10C-403, with reference to the mandatorybodily injury liability policy for accidental harm, and with reference to themandatory property damage liability policy for property damage sustained.

Any claims of an eligible assigned claimant againsteither mandatory bodily injury liability or property damage liability policies,or the basic personal injury protection policy, shall be filed with the insurerassigned and shall be subject to all applicable conditions and provisions ofthis subpart and subpart A, except that the date of notification of theassignment shall, where applicable, be substituted for the date of the accidentfor purposes of section 431:10C-315.

(d)  By rules adopted by the commissioner, eachself-insurer shall be assessed its equitable proration of all costs and claimspaid under this part annually.  No claim shall be assigned to any self-insurerfor servicing.  Proration for insurers and self-insurers shall be founded upona pro rata distribution for each premium dollar actually or theoreticallyreceived.  Self-insurers shall be assessed that prorated amount based upon thetotal premium cost for the coverage and vehicles stated in its certificate ofself-insurance, as if the self-insurer had sold the coverage at the premiumrates applicable under subpart C.

(e)  If a person qualifies for assignment orbenefits under this part, the joint underwriting plan or any insurer to whomthe claim is assigned by the plan shall be subrogated to the rights of theperson and shall have a claim for relief or a cause of action, separate fromthat of the persons, to the extent that:

(1)  It has paid personal injury protection benefits;and

(2)  Elements of damage compensated for by the plan,with reference to the mandatory motor vehicle insurance or bodily injurypolicies and to the mandatory property damage policy for property damagesustained, are paid. [L 1987, c 347, pt of §2; am L 1989, c 208, §5; am L 1993,c 205, §30; am L 1997, c 251, §52; am L 1998, c 275, §32; am L 2001, c 14, §1]

 

Case Notes

 

  Where assignee insurer made no offer of uninsuredmotorist coverage to insured public assistance recipient, assignee insurer didnot demonstrate an "applicable" and "identifiable"alternative to insured's assigned claim so as to relieve the assignee insurerunder this section of the duty to compensate insured.  112 H. 184, 145 P.3d727.