CHAPTER 405

FORMERLY

HOUSE BILL NO. 546

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 4

AN ACT TO AMEND CHAPTER 21 OF TITLE 21, DELAWARE CODE RELATING TO REQUIREMENTS OF INSURANCE FOR ALL MOTOR VEHICLES REGISTERED IN THIS STATE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend section 2118 by striking said subsection 2118 in its entirety and substituting in lieu thereof a new subsection 2118.

"§2118. Requirements of Insurance for all Motor Vehicles Registered in this State; Penalty

(a) No owner of a motor vehicle required to be registered in this State, other than a self-insurer pursuant to §2904 of this title, shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage:

(1) Indemnity from legal liability for bodily injury, death or property damage arising out of ownership, maintenance or use of the vehicle to the limit, exclusive of interest and costs, of at least the limits prescribed by the Financial Responsibility Law of this State.

(2)a. Compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for:

1. Medical, hospital, dental, surgical, medicine, x-ray, ambulance, prosthetic services, professional nursing and funeral services. Compensation for funeral services, including all customary charges and the cost of a burial plot for one person, shall not exceed the sum of $2,000. Compensation may include expenses for any non-medical remedial care and treatment rendered in accordance with a recognized religious method of healing.

2. Net amount of lost earnings. Lost earnings shall include net lost earnings of a self-employed person.

3. Where a qualified medical practitioner shall, within two years from the date of an accident, verify in writing that surgical or dental procedures will be necessary and are then medically ascertainable but impractical or impossible to perform during that two-year period, the cost of such dental or surgical procedures, including expenses for related medical treatment, and the net amount of lost earnings lost in connection with such dental or surgical procedures shall be payable. Such lost earnings shall be limited to the period of time that is reasonably necessary to recover from such surgical or dental procedures but not to exceed 90 days. The payment of these costs shall be either at the time they are ascertained or at the time they are actually incurred, at the insurer's option.

4. Extra expenses for personal services which would have been performed by the injured person had they not been injured.

5. 'Injured person' for the purposes of this section shall include the personal representative of an estate; provided, however, that if a death occurs, the 'net amount of lost earnings' shall include only that sum attributable to the period prior to the period prior to the death of the person so injured.

b. The minimum insurance coverage which will satisfy the requirements of subsection (a)(2)a of this section is a minimum limit for the total of all payments which must be made pursuant to that subsection of $10,000 for any one person and $20,000 for all persons injured in any one accident.

a. The coverage required by paragraph (2) of this subsection shall be applicable to each person occupying such motor vehicle and to any other person injured in an accident involving such motor vehicle, other than an occupant of another motor vehicle.

a. The coverage required by paragraph (2) of this subsection shall also be applicable to the named insureds and members of their households for accidents which occur through being injured by an accident with any motor vehicle other than a Delaware insured motor vehicle while a pedestrian or while occupying any registered motor vehicle other than a Delaware registered insured motor vehicle, in any state of the United States, its territories or possessions or Canada.

e. The coverage required in paragraph (2) of this subsection shall apply to pedestrians only if they are injured by an accident with any motor vehicle within the State except as to named insureds or members of their households to the extent they must be covered pursuant to subparagraph d. of the paragraph (2).

f. The owner of a vehicle may elect to have the coverage described in paragraph (2) of this subsection written subject to certain deductibles, waiting periods, sublimits, percentage reductions, excess provisions and similar reductions offered by insurers in accordance with filings made by such insurers with the Department of Insurance, applicable to expenses incurred as a result of injury to the owner of a vehicle or members of this household; provided that the owner of a motorcycle may elect to exclude from such coverage expenses incurred as a result of injury to any person riding such vehicle while not on a highway and in any case of injury when no other vehicle was involved by actual collision or contact. This election must be made in writing and signed by the owner of the vehicle; insurers issuing such policies may not require such reductions.

g. The coverage required by paragraph (2) of this subsection shall be considered excess over any similar insurance for passengers, other than Delaware residents, when the accident occurs outside the State.

h. Insurers shall notify injured persons covered under this section that the coverage is for two years from the date of the accident, and that it is only extended for compensation related to surgical or dental procedures that are related to the accident and that were impossible or impractical to perform within the two-year period. Such surgical or dental procedures must be verified in writing within two years of the accident, by a qualified medical practitioner.

i. 1. Expenses under subsection a(2)a shall be submitted to the insurer as promptly as practical, in no event more than 2 years after they are received by the insured.

2. Payments of expenses under subsection a(2)a shall be made as soon as practical after they are received during the period of two years from the accident. Expenses which are incurred within the two years but which have been impractical to present to an insurer within the two years shall be paid if presented within 90 days after the end of the two-year period.

(3) Compensation for damage to property arising as a result of an accident involving the motor vehicle, other than damage to a motor vehicle, aircraft, water craft, self-propelled Mobile equipment and any property in or upon any of the aforementioned, with the minimum limits of $5,000 for any one accident.

(4) Compensation for damage to the insured motor vehicle, including loss of use of the motor vehicle, not to exceed the actual cash value of the vehicle at the time of the loss and $10 per day, with a maximum payment of $300, for loss of use of such motor vehicle.

The owner of the motor vehicle may elect to exclude, in whole or in part, the coverage described in paragraph (4) of this subsection by the use of certain deductibles and exclusions in accordance with filings made by the insurer with the Department of Insurance.

(b) Only insurance policies validly issued by companies authorized to write in this State all the kinds of insurance embodies in the required coverages shall satisfy the requirements of this section.

(c) Nothing in this section shall be construed to prohibit the issuance of policies providing coverage more extensive than the minimum coverages required by this section or to require the segregation of such minimum coverages from other coverages in the same policy.

(d) Policies purporting to satisfy the requirements of this section shall contain a provision which states that, notwithstanding any of the other terms and conditions of the policy, the coverage afforded shall be at least as extensive as the minimum coveraged required by this section.

(e) The coverage described in paragraphs (1) through (4) of subsection (a) of this section may be subject to conditions and exclusions customary to the filed of liability, casualty and property insurance and not inconsistent with the requirements of this section. Except there shall be no exclusion to any person who sustains bodily injury or death to the extent that benefits therefore are in whole or in part either payable or required to be provided under any workmen's compensation law.

(f) Insurers providing benefits described in paragraphs (1) through (4) of subsection (a) of this section shall be subrogated to the rights, including claims under any workmen's compensation law, of the person for whom benefits are provided, to the extent of the benefits so provided.

(1) Such subrogated rights shall be limited to the maximum amounts of the tortfeasor's liability insurance coverage available for the injured party, after the injured party's claim has been settled or otherwise resolved, except that the insurer providing benefits shall be indemnified by any workmen's compensation insurer obligated to make such payments to the injured party.

(2) Any settlement made with an injured party by a liability insurer shall not be challenged or disputed by any insurer having subrogated rights.

(3) Disputes among insurers as to liability or amounts paid pursuant to paragraphs (1) through (4) of subsection (a) of this section shall be arbitrated by the Wilmington Auto Accident Reparation Arbitration Committee or its successors. Any disputes arising between an insurer or insurers and a self-insurer or self-insurers shall be submitted to arbitration which shall be conducted by the Commissioner in the same manner as the arbitration of claims provided for in subsection (i) of this section.

(4) No insurer or self-insurer shall join or be joined in an action by an injured party against a tortfeasor for the recovery of damages by the injured party and/or the recovery of benefits paid by the insurer of self-insurer.

(5) Nothing contained herein shall prohibit a liability insurer from paying the subrogated claim of another insurer prior to the settlement or resolution of the injured party's claim. However, should the amount of such settlement or resolution, In addition to the amount of any subrogated claim, exceed the maximum amount for the tortfeasor's liability insurance coverage available for the injured party, then any insurer who has been paid its subrogated claim shall reimburse the tortfeasor's liability insurer that portion of the claim exceeding the maximum amount of the tortfeasor's liability insurance coverage available for the injured party.

(6) Unless specifically excepted by this subsection, this subsection shall also apply to self-insurers.

(g) Any person eligible for benefits described in paragraph (2) or (3) of subsection (a) of this section other than an insurer in an action brought pursuant to subsection (f) of this section, is precluded from pleading or introducing into evidence in an action for damages against a tortfeasor those damages for which compensation Is available under paragraph (2) or (3) of subsection (a) of this section without regard to any elective reductions in such coverage and whether or not such benefits are actually recoverable.

(h) Nothing in this section shall be construed to require an insurer to Insure any particular risk. Nothing herein shall limit the insurer's obligation pursuant to the Delaware Automobile Plan.

(i) Every insurance policy issued under this section shall require the insurer to submit to arbitration, in the manner set forth hereinafter, any claims for losses or damages within the coverages required under paragraph (2) of subsection (a) of this section and for damages to a motor vehicle, including the insured motor vehicle, including loss of use of such vehicle, upon request of the party claiming to have suffered a loss or damages within the above-described coverages of paragraph (2) of subsection (a) of this section or to such a motor vehicle. Such request shall be in writing and mailed to the Insurance Commissioner within 90 days from the date an offer of settlement or denial of coverage or liability has been made by an insurer.

(1) All arbitration shall be administered by the Insurance Commissioner or his nominee.

(2) The Insurance Commissioner or his nominee shall establish a penel of arbitrators consisting of attorneys authorized to practice law in the State and insurance adjusters licensed to act as such in the State.

(3) The Insurance Commissioner, or his nominee, shall select three individuals from the panel of arbitrators, at least one of whom shall be an attorney authorized to practice law in the State, to hear each request for arbitration.

(4) The Insurance Commissioner, or his nominee, shall promulgate all rules and regulations necessary to implement this arbitration program.

(5) The right to require such arbitration shall be purely optional and neither party shall be held to have waived any of its rights by any act relating to arbitration and the losing party shall have a right to appeal de novo to the Superior Court If notice of such appeal is filed with that Court In the manner set forth by its rules within 30 days of the date of the decision being rendered.

(6) The Insurance Commissioner shall establish a schedule of costs of arbitration; provided, however, the arbitrator's fee shall not exceed $25 per arbitrator for any one arbitration.

(7) The cost or arbitration shall be payable to the State Department of Insurance, and shall be maintained in a special fund identified as the "Arbitration Fund" which shall be administered by the insurance Commissioner. These funds under no circumstances shall revert to the General Fund. All costs of arbitration including administrative expenses of the insurance Department and the arbitrator's fee shall be payable from this Fund.

(8) The applicant may be reimbursed their cost of filing arbitration as a part of the award rendered by the arbitration panel. If an insurer should pay an applicant his damages In advance of a hearing, they shall include with those damages the cost of the applicant of his filing the arbitration.

(9) This subsection shall also apply to self-insurers.

(j) Every insurance company authorized to transact the business of motor vehicle liability insurance in this State shall tile with the insurance Commissioner as a condition of its continued transaction of such business within this State a form approved by the insurance Commissioner stating that its motor vehicle liability policies, on Delaware registered vehicles wherever issued, shall be deemed to provide the insurance required by this section. A non-admitted insurer may file such a form.

(k) A motor vehicle registration shall not be issued or renewed for any vehicle not covered by a vehicle insurance policy meeting the requirements of this title.

(1) A motor vehicle owner shall, upon request of the Division of Motor Vehicle, offer proof of insurance in full force and effect as a condition of registration or continued registration of a motor vehicle. The Division of Motor Vehicles upon proof from its records or other sufficient evidence that the required insurance has not been provided or maintained for a motor vehicle shall immediately suspend the registration of such vehicle.

(m) Immediately upon notice of suspension of the registration of a vehicle, the owner shall return the registration plate and certificate to the Division of Motor Vehicles or produce proof of replacement insurance. Notice is complete upon the expiration of four days after deposit of such notice in the United States mail. No person shall possess or display a registration plate or certificate that has been suspended. Any person whose vehicle registration has been suspended under this subsection shall pay a fee of $50 at the end of such suspension for return of the registration plate and certificate.

(n) "insurance identification card" shall mean a card issued by or on behalf of an insurance company or bonding company duly authorized to transact business in this State, stating in such form as the Insurance Commissionr may prescribe or approve that such company has issued a vehicle insurance policy meeting the requirements of this title. The Insurance Commissioner shall require all insurance companies transacting such business within this State to provide with each vehicle insurance policy an insurance identification card for each vehicle describing the vehicle covered. Such card shall contain such information and shall be valid during such period as may be prescribed by the Insurance Commissioner. If an owner shall have filed a financial security deposit, or shall have qualified as a self-insurer, the term "insurance identification card" shall mean a card issued by the Office of the insurance Commissioner which evidences that such deposit has been filed or that such owner has so qualified.

(o) The insurance identification card issued for a vehicle required to be registered under this title shall at all times, while the vehicle is being operated upon a highway within this State, be in the possession of the operator thereof or carried in the vehicle and shall be produced upon the request of a police officer or Justice of the peace or any other part involved in an accident with the insured. However, an operator shall not be convicted under this subsection if, prior to conviction, he shall produce to the court in which the offense is to be tried the insurance identification card or in lieu thereof other sufficient proof of Insurance showing such insurance to be in full force and effect at all pertinent times when the motor vehicle is being operated within this State.

(p) The Director of the Division of Motor Vehicles may adopt such rules and regulations, not inconsistent with this title, as are necessary to enforce this section.

(q) Whoever violates any subsection of this section shall be fined for the first offense not less than $150 nor more than $1,000 and shall have his driving license and/or privileges suspended for three months. For each subsequent offense occurring within three years of a former offense, he shall be fined not less than $500 nor more than $2,000. The minimum fine levied for a violation of subsection (a) (j) or (p) of this section shall not be subject to suspension.

Failure of the owner or operator to produce an Insurance identification card for insurance which is in full force and effect at the time the insurance identification card is produced shall be presumptive evidence that such person is operating his vehicle without having insurance required by this title.

Notwithstanding the penalties specified above, anyone convicted of driving without minimum insurance as required In this section shall have his privilege of driving revoked in this State until such time as he has furnished proof of insurance to the Division of Motor Vehicles."

Approved July 21, 1982.