N.Y. Comp. Codes R. & Regs. tit. 11 § 65-3.12

Current through Register Vol. 46, No. 17, April 24, 2024

Section 65-3.12 - Sources of mandatory personal injury protection benefits

(a) Institution of claims for first-party benefits-priority.

(1) Subject to paragraph (9) of this subdivision, an applicant who is an operator or occupant of an insured motor vehicle, or any other person, not occupying another motor vehicle or a motorcycle, who sustains a personal injury arising out of the use or operation in New York State of such motor vehicle, shall institute the claim against the insurer of such motor vehicle.

(2) An applicant who is neither an operator nor an occupant of a motor vehicle or a motorcycle, and who sustains a personal injury arising out of the use or operation in New York State of more than one insured motor vehicle or insured motorcycle shall institute the claim against the insurer of any one of such motor vehicles or motorcycles unless the insurers agree among themselves that one of them will accept and pay the claim initially.

(3) An applicant who is a named insured or a relative of a named insured, other than the occupant of a motorcycle, and who sustains a personal injury arising out of the use or operation of a motor vehicle outside of New York State, shall institute the claim against the insurer of the named insured or the insurer of the relative. Where there is more than one insurer which would be the source of benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, the provisions of subdivisions (b) and (e) of this section shall apply.

(4) An applicant who is a named insured or a relative of a named insured, other than the occupant of a motorcycle, and who sustains a personal injury arising out of the use or operation of an uninsured motor vehicle in New York State, shall institute the claim against the insurer of the named insured or the insurer of the relative. Where there is more than one insurer which would be the source of benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, the provisions of subdivisions (b) and (e) of this section shall apply. If there is no such insurer and the accident occurs in New York State, then an applicant who is a qualified person as defined in article 52 of the Insurance Law shall institute the claim against the MVAIC.

(5) An applicant who is neither an operator nor an occupant of a motor vehicle or a motorcycle, and who sustains a personal injury arising out of the use or operation in New York State of an insured motorcycle, shall institute the claim against the insurer of the motorcycle.

(6) An applicant who is a named insured or a relative of a named insured, other than the occupant of a motor vehicle or a motorcycle, and who sustains a personal injury arising out of the use or operation of an uninsured motorcycle in New York State shall institute the claim against the insurer of the named insured or the insurer of the relative. Where there is more than one insurer which would be the source of benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, the provisions of subdivisions (b) and (e) of this section shall apply. If there is no such insurer and the accident occurs in New York State, then an applicant who is a qualified person as defined in article 52 of the Insurance Law shall institute the claim against the MVAIC.

(7) An applicant who is a named insured or a relative of a named insured, other than the occupant of a motor vehicle or a motorcycle, and who sustains a personal injury arising out of the use or operation of a motorcycle outside of New York State shall institute the claim against the insurer of the named insured or relative. Where there is more than one insurer which would be the source of benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, the provisions of subdivisions (b) and (e) of this section shall apply.

(8) An applicant who is a New York State resident and who is neither a named insured or relative under any mandatory personal injury protection endorsement nor the owner of an uninsured motor vehicle and who sustains a personal injury arising out of the use or operation of a New York insured motor vehicle outside of New York State shall institute the claim against the insurer of such motor vehicle. Where there is more than one insurer that would be the source of benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, the provisions of subdivisions (b) and (e) of this section shall apply.

(9) An applicant, other than an operator, owner, or employee of the owner or operator of a bus or school bus, who, while an occupant of such bus or school bus, sustains a personal injury arising out of the use or operation in New York State of such bus or school bus, shall institute the claim against the applicant's own insurer. If the applicant does not have an insurer, the applicant shall institute the claim against the insurer of the bus or school bus.

(10) An applicant who is an operator, owner, or employee of the operator or owner of a bus or school bus, and who, while an occupant of such bus or school bus, sustains a personal injury arising out of the use or operation of such bus or school bus, shall institute the claim against the insurer of such bus or school bus.

(b)

(1) If a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, or if a dispute arises among insurers who are liable for the payment of first-party benefits and have the same priority of payment, then the first insurer to whom notice of claim is given pursuant to section 65-3.3 or 65-3.4(a) of this Subpart, by or on behalf of an eligible injured person, shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part. Each insurer that concludes that it was not the first insurer contacted to provide first party benefits shall issue a denial of claim form (NF-10) that includes the following statement in box 33:

If, after contacting the insurer that we advised you has primary responsibility for the payment of first party benefits, that insurer denies coverage for your claim, you have the option to submit this dispute for expedited arbitration by providing a copy of the denial form and a written request along with a $40 filing fee to the organization listed under option two on the back of this form. Your $40 filing fee will be refunded to you by the insurer determined to be responsible for processing your claim. This arbitration is limited solely to determining the insurer to process your claim, and it will not resolve issues regarding pending bills or consider any other defense to payment. You do not need to submit bills for this arbitration.

(2)

(i) Under section 5106(d)(2) of the Insurance Law, a group policy issued pursuant to section 3455 or 3458 of the Insurance Law shall provide first party benefits when a dispute exists as to whether a driver was using or operating a motor vehicle in connection with a transportation network company or peer-to-peer car sharing program administrator when loss, damage, injury, or death occurs. Section 5106(d)(2) of the Insurance Law requires a transportation network company or peer-to-peer car sharing program administrator to notify the insurer that issued the owner's policy of liability insurance of the dispute within 10 business days of becoming aware that the dispute exists. When there is a dispute, the group insurer liable for the payment of first party benefits under a group policy shall have the right to recover the amount paid from the driver's insurer or in the case of a peer-to-peer car sharing program, the shared vehicle owner's insurer to the extent that the driver would have been liable to pay damages in an action at law.

(ii) Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 65-4.11 of this Part.

(iii) Each insurer that is not the insurer that issued the group policy shall issue a denial of claim form (NF-10) that includes in box 33 the statement set forth in paragraph (1) of this subdivision.

(3) With respect to any accident, insured event, or occurrence prior to January 1, 2019, where the driver was using or operating a motor vehicle in connection with a transportation network company when loss, damage, injury, or death occurs:

(i) an insurer that issued a group policy pursuant to section 3455 of the Insurance Law shall not seek to recover any amount that it pays pursuant to article 51 of the Insurance Law from the insurer that issued the owner's policy of liability insurance issued in satisfaction of the minimum requirements of article 6 of the Vehicle and Traffic Law; and

(ii) If an insurer that issued the owner's policy of liability insurance issued in satisfaction of the minimum requirements of article 6 of the Vehicle and Traffic Law receives the claim first, the insurer that issued a group policy pursuant to section 3455 of the Insurance Law shall fully indemnify the insurer that issued the owner's policy of liability insurance for amounts that it pays pursuant to article 51 of the Insurance Law.

(4) With respect to any accident, insured event, or occurrence, where the shared vehicle driver was using or operating a motor vehicle pursuant to article 40 of the General Business Law when loss, damage, injury, or death occurs:

(i) an insurer that issued a group policy pursuant to section 3458 of the Insurance Law shall not seek to recover any amount that it pays pursuant to article 51 of the Insurance Law from the insurer that issued the owner's policy of liability insurance issued in satisfaction of the minimum requirements of article 6 of the Vehicle and Traffic Law; and

(ii) if an insurer that issued the owner's policy of liability insurance issued in satisfaction of the minimum requirements of article 6 of the Vehicle and Traffic Law receives the claim first, the insurer that issued a group policy pursuant to section 3458 of the Insurance Law shall fully indemnify the insurer that issued the owner's policy of liability insurance for amounts that it pays pursuant to article 51 of the Insurance Law.

(c) If the source of first-party benefits is at issue because the status of the injured person as a pedestrian or an occupant of a motor vehicle is in dispute, the insurer to whom notice of claim was given or if such notice was given to more than one insurer, the first insurer to whom notice was given shall, within 15 calendar days after receipt of notice, obtain an agreement with the other insurer or insurers as to which insurer will furnish no-fault benefits. If such an agreement is not reached within the aforementioned 15 days, then the insurer to whom such notice was first given shall process the claim and pay first-party benefits and resolve the dispute in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part. Each insurer that concludes that it was not the first insurer contacted to provide first party benefits shall issue a denial of claim form (NF-10) that includes the following statement in box 33:

(d) The insurer of the named insured or relative shall be responsible for the payment of first- party benefits to such person when he/she is injured through the use or operation of another motor vehicle, the alleged insurer of which has denied coverage claiming it did not have a policy in force on such vehicle on the accident date; provided, however, that the named insured or relative injured in the accident was not the owner of the alleged uninsured motor vehicle. Payment by the insurer of the named insured or relative shall not affect any legal right of such insurer to challenge the validity of the denial by the other insurer.

(e) Any insurer paying first-party benefits shall be reimbursed by other insurers for their proportionate share of the costs of the claim and the allocated expenses of processing the claim, in accordance with the provisions entitled "other coverage" contained in section 65-1.1 of this Part and provisions entitled "other sources of first-party benefits" contained in Subpart 65-2 of this Part.

(f) For the purposes of this section, "insurer of such motor vehicle" means any insurer that is providing first party benefits at the time the personal injury is sustained.

N.Y. Comp. Codes R. & Regs. Tit. 11 § 65-3.12

Amended New York State Register October 25, 2017/Volume XXXIX, Issue 43, eff. 10/25/2017

Amended New York State Register February 8, 2023/Volume XLV, Issue 06, eff. 2/8/2023