§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 insurance
benefits through the plan whenever:



(1)  No liability or uninsured motorist insurance
benefits under motor vehicle insurance policies are applicable to the
accidental harm;



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



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



(b)  A person, or such person's legal
representative, shall be disqualified from receiving benefits through the plan
if:



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



(2)  Such person was:



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



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



(c)  Any person eligible for benefits under
this part, and who becomes eligible to file a claim or an action against the
mandatory 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 as
if the victim had been covered as an insured at the time of the accident
producing the accidental harm, but not including an owner, operator, or
passenger of a motorcycle or motor scooter, as defined in section 286-2, or a
pedestrian incurring accidental harm arising out of a motorcycle or motor
scooter accident, as defined in section 431:10G-101; and



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



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



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



(e)  If a person qualifies for assignment or
benefits under this part, the joint underwriting plan or any insurer to whom
the claim is assigned by the plan shall be subrogated to the rights of the
person and shall have a claim for relief or a cause of action, separate from
that 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 injury
policies and to the mandatory property damage policy for property damage
sustained, 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 uninsured
motorist coverage to insured public assistance recipient, assignee insurer did
not demonstrate an "applicable" and "identifiable"
alternative to insured's assigned claim so as to relieve the assignee insurer
under this section of the duty to compensate insured.  112 H. 184, 145 P.3d
727.