Senate Bill No. 245

Introduced by Senator Roth

February 18, 2015

An act to amend Section 11580.2 of the Insurance Code, relating to automobile insurance.

LEGISLATIVE COUNSEL’S DIGEST

SB 245, as introduced, Roth. Automobile insurance: underinsured motorist coverage.

Existing law prohibits a policy of bodily injury liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle from being issued or delivered in this state to the owner or operator of a motor vehicle, or from being issued or delivered by any insurer licensed in this state upon any motor vehicle then principally used or principally garaged in this state, unless the policy contains, or has added to it by endorsement, a provision with specified coverage limits insuring the insured, the insured’s heirs, or legal representative for all sums within the limits that he, she, or they are legally entitled to recover as damages for bodily injury or wrongful death from the owner or operator of an uninsured motor vehicle, except as otherwise provided. Uninsured motorist coverage includes underinsured motorist coverage.

This bill would make technical, nonsubstantive changes to these provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11580.2 of the Insurance Code is
amended to read:

11580.2.  

(a) (1) No policy of bodily injury liability insurance
covering liability arising out of the ownership, maintenance, or
use of any motor vehicle, except for policies that provide insurance
in the Republic of Mexico issued or delivered in this state by
nonadmitted Mexican insurers, shall be issued or delivered in this
state to the owner or operator of a motor vehicle, or shall be issued
or delivered by any insurer licensed in this state upon any motor
vehicle then principally used or principally garaged in this state,
unless the policy contains, or has added to it by endorsement, a
provision with coverage limits at least equal to the limits specified
in subdivision (m) and in no case less than the financial
responsibility requirements specified in Section 16056 of the
Vehicle Code insuring the insured, the insured’s heirs begin insert , end insert or legal
representative for all sums within the limits that he, she, or they,
as the case may be, shall be legally entitled to recover as damages
for bodily injury or wrongful death from the owner or operator of
an uninsured motor vehicle. The insurer and any named insured,
prior to or subsequent to the issuance or renewal of a policy, may,
by agreement in writing, in the form specified in paragraph (2) or
paragraph (3), begin delete (1) end delete begin insert (A) end insert delete the provision covering damage caused
by an uninsured motor vehicle completely, or begin delete (2) end delete begin insert (B) end insert delete the
coverage when a motor vehicle is operated by a natural person or
persons designated by name, or begin delete (3) end delete begin insert (C) end insert agree to provide the
coverage in an amount less than that required by subdivision (m)
but not less than the financial responsibility requirements specified
in Section 16056 of the Vehicle Code. Any of these agreements
by any named insured or agreement for the amount of coverage
shall be binding upon every insured to whom the policy or
endorsement provisions apply while the policy is in force, and
shall continue to be so binding with respect to any continuation or
renewal of the policy or with respect to any other policy that
extends, changes, supersedes, or replaces the policy issued to the
named insured by the same insurer, or with respect to reinstatement
of the policy within 30 days of any lapse thereof. A policy shall
be excluded from the application of this section if the automobile
liability coverage is provided only on an excess or umbrella basis.
Nothing in this section shall require that uninsured motorist
coverage be offered or provided in any homeowner policy, personal
and residents’ liability policy, comprehensive personal liability
policy, manufacturers’ and contractors’ policy, premises liability
policy, special multiperil policy, or any other policy or endorsement
begin delete where end delete begin insert when end insert automobile liability coverage is offered as incidental
to some other basic coverage, notwithstanding that the policy may
provide automobile or motor vehicle liability coverage on insured
premises or the ways immediately adjoining.

(2) The agreement specified in paragraph (1) to delete the
provision covering damage caused by an uninsured motor vehicle
completely or delete the coverage when a motor vehicle is operated
by a natural person or persons designated by name shall be in the
following form:

“The California Insurance Code requires an insurer to provide
uninsured motorists coverage in each bodily injury liability
insurance policy it issues covering liability arising out of the
ownership, maintenance, or use of a motor vehicle. Those
provisions also permit the insurer and the applicant to delete the
coverage completely or to delete the coverage when a motor vehicle
is operated by a natural person or persons designated by name.
Uninsured motorists coverage insures the insured, his or her heirs,
or legal representatives for all sums within the limits established
by law, that the person or persons are legally entitled to recover
as damages for bodily injury, including any resulting sickness,
disease, or death, to the insured from the owner or operator of an
uninsured motor vehicle not owned or operated by the insured or
a resident of the same household. An uninsured motor vehicle
includes an underinsured motor vehicle as defined in subdivision
(p) of Section 11580.2 of the Insurance Code.”

The agreement may contain additional statements not in
derogation of or in conflict with the foregoing. The execution of
the agreement shall relieve the insurer of liability under this section
while the agreement remains in effect.

(3) The agreement specified in paragraph (1) to provide coverage
in an amount less than that required by subdivision (m) shall be
in the following form:

“The California Insurance Code requires an insurer to provide
uninsured motorists coverage in each bodily injury liability
insurance policy it issues covering liability arising out of the
ownership, maintenance, or use of a motor vehicle. Those
provisions also permit the insurer and the applicant to agree to
provide the coverage in an amount less than that required by
subdivision (m) of Section 11580.2 of the Insurance Code but not
less than the financial responsibility requirements. Uninsured
motorists coverage insures the insured, his or her heirs, or legal
representatives for all sums within the limits established by law,
that the person or persons are legally entitled to recover as damages
for bodily injury, including any resulting sickness, disease, or
death, to the insured from the owner or operator of an uninsured
motor vehicle not owned or operated by the insured or a resident
of the same household. An uninsured motor vehicle includes an
underinsured motor vehicle as defined in subdivision (p) of Section
11580.2 of the Insurance Code.”

The agreement may contain additional statements not in
derogation of or in conflict with this paragraph. However, it shall
be presumed that an application for a policy of bodily injury
liability insurance containing uninsured motorist coverage in an
amount less than that required by subdivision (m), signed by the
named insured and approved by the insurer, with a policy effective
date after January 1, 1985, shall be a valid agreement as to the
amount of uninsured motorist coverage to be provided.

(b) As used in subdivision (a), “bodily injury” includes sickness
or disease, including death, resulting therefrom; “named insured”
means only the individual or organization named in the declarations
of the policy of motor vehicle bodily injury liability insurance
referred to in subdivision (a); as used in subdivision (a) if the
named insured is an individual “insured” means the named insured
and the spouse of the named insured and, while residents of the
same household, relatives of either while occupants of a motor
vehicle or otherwise, heirs and any other person while in or upon
or entering into or alighting from an insured motor vehicle and
any person with respect to damages he or she is entitled to recover
for care or loss of services because of bodily injury to which the
policy provisions or endorsement apply; as used in subdivision
(a), if the named insured is an entity other than an individual,
“insured” means any person while in or upon or entering into or
alighting from an insured motor vehicle and any person with
respect to damages he or she is entitled to recover for care or loss
of services because of bodily injury to which the policy provisions
or endorsement apply. As used in this subdivision, “individual”
shall not include persons doing business as corporations,
partnerships, or associations. As used in this subdivision, “insured
motor vehicle” means the motor vehicle described in the underlying
insurance policy of which the uninsured motorist endorsement or
coverage is a part, a temporary substitute automobile for which
liability coverage is provided in the policy or a newly acquired
automobile for which liability coverage is provided in the policy
if the motor vehicle is used by the named insured or with his or
her permission or consent, express or implied, and any other
automobile not owned by or furnished for the regular use of the
named insured or any resident of the same household, or by a
natural person or persons for whom coverage has been deleted in
accordance with subdivision (a) while being operated by the named
insured or his or her spouse if a resident of the same household,
but “insured motor vehicle” shall not include any automobile while
used as a public or livery conveyance. As used in this section,
“uninsured motor vehicle” means a motor vehicle with respect to
the ownership, maintenance or use of which there is no bodily
injury liability insurance or bond applicable at the time of the
accident, or there is the applicable insurance or bond but the
company writing the insurance or bond denies coverage thereunder
or refuses to admit coverage thereunder except conditionally or
with reservation, or an “underinsured motor vehicle” as defined
in subdivision (p), or a motor vehicle used without the permission
of the owner thereof if there is no bodily injury liability insurance
or bond applicable at the time of the accident with respect to the
owner or operator thereof, or the owner or operator thereof be
unknown, provided that, with respect to an “uninsured motor
vehicle” whose owner or operator is unknown:

(1) The bodily injury has arisen out of physical contact of the
automobile with the insured or with an automobile that the insured
is occupying.

(2) The insured or someone on his or her behalf has reported
the accident within 24 hours to the police department of the city
where the accident occurred or, if the accident occurred in
unincorporated territory then either to the sheriff of the county
where the accident occurred or to the local headquarters of the
California Highway Patrol, and has filed with the insurer within
30 days thereafter a statement under oath that the insured or his
or her legal representative has or the insured’s heirs have a cause
of action arising out of the accident for damages against a person
or persons whose identity is unascertainable and set forth facts in
support thereof. As used in this section, “uninsured motor vehicle”
shall not include a motor vehicle owned or operated by the named
insured or any resident of the same household or self-insured within
the meaning of the Financial Responsibility Law of the state in
which the motor vehicle is registered or that is owned by the United
States of America, Canada, a state or political subdivision of any
of those governments or an agency of any of the foregoing, or a
land motor vehicle or trailer while located for use as a residence
or premises and not as a vehicle, or any equipment or vehicle
designed or modified for use primarily off public roads, except
while actually upon public roads.

As used in this section, “uninsured motor vehicle” also means
an insured motor vehicle begin delete where end delete begin insert when end insert the liability insurer thereof
is unable to make payment with respect to the legal liability of its
insured within the limits specified therein because of insolvency.
An insurer’s solvency protection shall be applicable only to
accidents occurring during a policy period in which its insured’s
motor vehicle coverage is in effect begin delete where end delete begin insert when end insert the liability insurer
of the tortfeasor becomes insolvent within one year of the accident.
In the event of payment to any person under the coverage required
by this section and subject to the terms and conditions of the
coverage, the insurer making the payment, shall to the extent
thereof, be entitled to any proceeds that may be recoverable from
the assets of the insolvent insurer through any settlement or
judgment of the person against the insolvent insurer.

Nothing in this section is intended to exclude from the definition
of an uninsured motor vehicle any motorcycle or private
passenger-type four-wheel drive motor vehicle if that vehicle was
subject to and failed to comply with the Financial Responsibility
Law of this state.

(c) The insurance coverage provided for in this section does not
apply either as primary or as excess coverage:

(1) To property damage sustained by the insured.

(2) To bodily injury of the insured while in or upon or while
entering into or alighting from a motor vehicle other than the
described motor vehicle if the owner thereof has insurance similar
to that provided in this section.

(3) To bodily injury of the insured with respect to which the
insured or his or her representative shall, without the written
consent of the insurer, make any settlement with or prosecute to
judgment any action against any person who may be legally liable
therefor.

(4) In any instance begin delete where end delete begin insert when end insert it would inure directly or
indirectly to the benefit of any workers’ compensation carrier or
to any person qualified as a self-insurer under any workers’
compensation law, or directly to the benefit of the United States,
or any state or any political subdivision thereof.

(5) To establish proof of financial responsibility as provided in
Section 16054 of the Vehicle Code.

(6) To bodily injury of the insured while occupying a motor
vehicle owned by an insured or leased to an insured under a written
contract for a period of six months or longer, unless the occupied
vehicle is an insured motor vehicle. “Motor vehicle” as used in
this paragraph means any self-propelled vehicle.

(7) To bodily injury of the insured when struck by a vehicle
owned by an insured, except when the injured insured’s vehicle
is being operated, or caused to be operated, by a person without
the injured insured’s consent in connection with criminal activity
that has been documented in a police report and that the injured
insured is not a party to.

(8) To bodily injury of the insured while occupying a motor
vehicle rented or leased to the insured for public or livery purposes.

(d) Subject to paragraph (2) of subdivision (c), the policy or
endorsement may provide that if the insured has insurance available
to the insured under more than one uninsured motorist coverage
provision, any damages shall not be deemed to exceed the higher
of the applicable limits of the respective coverages, and the
damages shall be prorated between the applicable coverages as
the limits of each coverage bear to the total of the limits.

(e) The policy or endorsement added thereto may provide that
if the insured has valid and collectible automobile medical payment
insurance available to him or her, the damages that the insured
shall be entitled to recover from the owner or operator of an
uninsured motor vehicle shall be reduced for purposes of uninsured
motorist coverage by the amounts paid or due to be paid under the
automobile medical payment insurance.

(f) The policy or an endorsement added thereto shall provide
that the determination as to whether the insured shall be legally
entitled to recover damages, and if so entitled, the amount thereof,
shall be made by agreement between the insured and the insurer
or, in the event of disagreement, by arbitration. The arbitration
shall be conducted by a single neutral arbitrator. An award or a
judgment confirming an award shall not be conclusive on any party
in any action or proceeding between (i) the insured, his or her
insurer, his or her legal representative, or his or her heirs and (ii)
the uninsured motorist to recover damages arising out of the
accident upon which the award is based. If the insured has or may
have rights to benefits, other than nonoccupational disability
benefits, under any workers’ compensation law, the arbitrator shall
not proceed with the arbitration until the insured’s physical
condition is stationary and ratable. In those cases in which the
insured claims a permanent disability, the claims shall, unless good
cause be shown, be adjudicated by award or settled by compromise
and release before the arbitration may proceed. Any demand or
petition for arbitration shall contain a declaration, under penalty
of perjury, stating whether (i) the insured has a workers’
compensation claim; (ii) the claim has proceeded to findings and
award or settlement on all issues reasonably contemplated to be
determined in that claim; and (iii) if not, what reasons amounting
to good cause are grounds for the arbitration to proceed
immediately. The arbitration shall be deemed to be a proceeding
and the hearing before the arbitrator shall be deemed to be the trial
of an issue therein for purposes of issuance of a subpoena by an
attorney of a party to the arbitration under Section 1985 of the
Code of Civil Procedure. Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure shall be
applicable to these determinations, and all rights, remedies,
obligations, liabilities and procedures set forth in Title 4
(commencing with Section 2016.010) of Part 4 of the Code of
Civil Procedure shall be available to both the insured and the
insurer at any time after the accident, both before and after the
commencement of arbitration, if any, with the following
limitations:

(1) Whenever in Title 4 (commencing with Section 2016.010)
of Part 4 of the Code of Civil Procedure, reference is made to the
court in which the action is pending, or provision is made for
application to the court or obtaining leave of court or approval by
the court, the court that shall have jurisdiction for the purposes of
this section shall be the superior court of the State of California,
in and for any county that is a proper county for the filing of a suit
for bodily injury arising out of the accident, against the uninsured
motorist, or any county specified in the policy or an endorsement
added thereto as a proper county for arbitration or action thereon.

(2) Any proper court to which application is first made by either
the insured or the insurer under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure for any
discovery or other relief or remedy, shall thereafter be the only
court to which either of the parties shall make any applications
under Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure with respect to the same accident,
subject, however, to the right of the court to grant a change of
venue after a hearing upon notice, upon any of the grounds upon
which change of venue might be granted in an action filed in the
superior court.

(3) A deposition pursuant to Chapter 9 (commencing with
Section 2025.010) of Title 4 of Part 4 of the Code of Civil
Procedure may be taken without leave of court, except that leave
of court, granted with or without notice and for good cause shown,
must be obtained if the notice of the taking of the deposition is
served by either party within 20 days after the accident.

(4) Subdivision (a) of Section 2025.280 of the Code of Civil
Procedure is not applicable to discovery under this section.

(5) For the purposes of discovery under this section, the insured
and the insurer shall each be deemed to be “a party to the action,”
begin delete where end delete begin insert when end insert that phrase is used in Section 2025.260 of the Code
of Civil Procedure.

(6) Interrogatories under Chapter 13 (commencing with Section
2030.010) of Title 4 of Part 4 of the Code of Civil Procedure and
requests for admission under Chapter 16 (commencing with Section
2033.010) of Title 4 of Part 4 of the Code of Civil Procedure may
be served by either the insured or the insurer upon the other at any
time more than 20 days after the accident without leave of court.

(7) Nothing in this section limits the rights of any party to
discovery in any action pending or that may hereafter be pending
in any court.

(g) The insurer paying a claim under an uninsured motorist
endorsement or coverage shall be entitled to be subrogated to the
rights of the insured to whom the claim was paid against any person
legally liable for the injury or death to the extent that payment was
made. The action may be brought within three years from the date
that payment was made hereunder.

(h) An insured entitled to recovery under the uninsured motorist
endorsement or coverage shall be reimbursed within the conditions
stated herein without being required to sign any release or waiver
of rights to which he or she may be entitled under any other
insurance coverage applicable; nor shall payment under this section
to the insured be delayed or made contingent upon the decisions
as to liability or distribution of loss costs under other bodily injury
liability insurance or any bond applicable to the accident. Any loss
payable under the terms of the uninsured motorist endorsement or
coverage to or for any person may be reduced:

(1) By the amount paid and the present value of all amounts
payable to him or her, his or her executor, administrator, heirs, or
legal representative under any workers’ compensation law,
exclusive of nonoccupational disability benefits.

(2) By the amount the insured is entitled to recover from any
other person insured under the underlying liability insurance policy
of which the uninsured motorist endorsement or coverage is a part,
including any amounts tendered to the insured as advance payment
on behalf of the other person by the insurer providing the
underlying liability insurance.

(i) (1) No cause of action shall accrue to the insured under any
policy or endorsement provision issued pursuant to this section
unless one of the following actions have been taken within two
years from the date of the accident:

(A) Suit for bodily injury has been filed against the uninsured
motorist, in a court of competent jurisdiction.

(B) Agreement as to the amount due under the policy has been
concluded.

(C) The insured has formally instituted arbitration proceedings
by notifying the insurer in writing sent by certified mail, return
receipt requested. Notice shall be sent to the insurer or to the agent
for process designated by the insurer filed with the department.

(2) Any arbitration instituted pursuant to this section shall be
concluded either:

(A) Within five years from the institution of the arbitration
proceeding.

(B) If the insured has a workers’ compensation claim arising
from the same accident, within three years of the date the claim is
concluded, or within the five-year period set forth in subparagraph
(A), whichever occurs later.

(3) The doctrines of estoppel, waiver, impossibility,
impracticality, and futility apply to excuse a party’s noncompliance
with the statutory timeframe, as determined by the court.

(4) Parties to the insurance contract may stipulate in writing to
extending the time to conclude arbitration.

(j) Notwithstanding subdivisions (b) and (i), in the event the
accident occurs in any other state or foreign jurisdiction to which
coverage is extended under the policy and the insurer of the
tortfeasor becomes insolvent, any action authorized pursuant to
this section may be maintained within three months of the
insolvency of the tortfeasor’s insurer, but in no event later than
the pertinent period of limitation of the jurisdiction in which the
accident occurred.

(k) Notwithstanding subdivision (i), any insurer whose insured
has made a claim under his or her uninsured motorist coverage,
and the claim is pending, shall, at least 30 days before the
expiration of the applicable statute of limitation, notify its insured
in writing of the statute of limitation applicable to the injury or
death. Failure of the insurer to provide the written notice shall
operate to toll any applicable statute of limitation or other time
limitation for a period of 30 days from the date the written notice
is actually given. The notice shall not be required if the insurer
has received notice that the insured is represented by an attorney.

(l) As used in subdivision (b), “public or livery conveyance,”
or terms of similar import, shall not include the operation or use
of a motor vehicle by the named insured in the performance of
volunteer services for a nonprofit charitable organization or
governmental agency by providing social service transportation
as defined in subdivision (f) of Section 11580.1. This subdivision
shall apply only to policies of insurance issued, amended, or
renewed on or after January 1, 1976.

(m) Coverage provided under an uninsured motorist
endorsement or coverage shall be offered with coverage limits
equal to the limits of liability for bodily injury in the underlying
policy of insurance, but shall not be required to be offered with
limits in excess of the following amounts:

(1) A limit of thirty thousand dollars ($30,000) because of bodily
injury to or death of one person in any one accident.

(2) Subject to the limit for one person set forth in paragraph (1),
a limit of sixty thousand dollars ($60,000) because of bodily injury
to or death of two or more persons in any one accident.

(n) Underinsured motorist coverage shall be offered with limits
equal to the limits of liability for the insured’s uninsured motorist
limits in the underlying policy, and may be offered with limits in
excess of the uninsured motorist coverage. For the purposes of
this section, uninsured and underinsured motorist coverage shall
be offered as a single coverage. However, an insurer may offer
coverage for damages for bodily injury or wrongful death from
the owner or operator of an underinsured motor vehicle at greater
limits than an uninsured motor vehicle.

(o) If an insured has failed to provide an insurer with wage loss
information or medical treatment record releases within 15 days
of the insurer’s request or has failed to submit to a medical
examination arranged by the insurer within 20 days of the insurer’s
request, the insurer may, at any time prior to 30 days before the
actual arbitration proceedings commence, request, and the insured
shall furnish, wage loss information or medical treatment record
releases, and the insurer may require the insured, except during
periods of hospitalization, to make himself or herself available for
a medical examination. The wage loss information or medical
treatment record releases shall be submitted by the insured within
10 days of request and the medical examination shall be arranged
by the insurer no sooner than 10 days after request, unless the
insured agrees to an earlier examination date, and not later than
20 days after the request. If the insured fails to comply with the
requirements of this subdivision, the actual arbitration proceedings
shall be stayed for at least 30 days following compliance by the
insured. The proceedings shall be scheduled as soon as practicable
following expiration of the 30-day period.

(p) This subdivision applies only when bodily injury, as defined
in subdivision (b), is caused by an underinsured motor vehicle. If
the provisions of this subdivision conflict with subdivisions (a)
through (o), begin insert inclusive, end insert the provisions of this subdivision shall
prevail.

(1) As used in this subdivision, “an insured motor vehicle” is
one that is insured under a motor vehicle liability policy, or
automobile liability insurance policy, self-insured, or for which a
cash deposit or bond has been posted to satisfy a financial
responsibility law.

(2) “Underinsured motor vehicle” means a motor vehicle that
is an insured motor vehicle but insured for an amount that is less
than the uninsured motorist limits carried on the motor vehicle of
the injured person.

(3) This coverage does not apply to any bodily injury until the
limits of bodily injury liability policies applicable to all insured
motor vehicles causing the injury have been exhausted by payment
of judgments or settlements, and proof of the payment is submitted
to the insurer providing the underinsured motorist coverage.

(4) When bodily injury is caused by one or more motor vehicles,
whether insured, underinsured, or uninsured, the maximum liability
of the insurer providing the underinsured motorist coverage shall
not exceed the insured’s underinsured motorist coverage limits,
less the amount paid to the insured by or for any person or
organization that may be held legally liable for the injury.

(5) The insurer paying a claim under this subdivision shall, to
the extent of the payment, be entitled to reimbursement or credit
in the amount received by the insured from the owner or operator
of the underinsured motor vehicle or the insurer of the owner or
operator.

(6) If the insured brings an action against the owner or operator
of an underinsured motor vehicle, he or she shall forthwith give
to the insurer providing the underinsured motorist coverage a copy
of the complaint by personal service or certified mail. All pleadings
and depositions shall be made available for copying or copies
furnished the insurer, at the insurer’s expense, within a reasonable
time.

(7) Underinsured motorist coverage shall be included in all
policies of bodily injury liability insurance providing uninsured
motorist coverage issued or renewed on or after July 1, 1985.
Notwithstanding this section, an agreement to delete uninsured
motorist coverage completely, or with respect to a person or
persons designated by name, executed prior to July 1, 1985, shall
remain in full force and effect.

(q) Regardless of the number of vehicles involved whether
insured or not, persons covered, claims made, premiums paid begin insert , end insert or
the number of premiums shown on the policy, in no event shall
the limit of liability for two or more motor vehicles or two or more
policies be added together, combined, or stacked to determine the
limit of insurance coverage available to injured persons.