West Virginia Code of State Rules › Agency 114 - Insurance Commission › Title 114 - LEGISLATIVE RULE INSURANCE COMMISSIONER › Series 114-63 - Standard Motor Vehicle Policy Provisions › Section 114-63-5 - Underinsured Motor Vehicle Provisions

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1. If
				selected by the insured, policies must include a provision agreeing to pay the
				insured all sums which he or she shall be legally entitled to recover as damages
				from the owner or operator of an underinsured motor vehicle up to the limits
				selected by the insured. W. Va. Code §
									33-6-31(b).
5.2. Underinsured motor vehicle coverage shall not
				provide for setoff for any payments made by the insured's policy or any other
				policy. W. Va. Code §
									33-6-31(b).
5.3. Underinsured motor vehicle coverage shall not
				contain a provision requiring arbitration. W. Va. Code §
									33-6-31(g).
5.4. Underinsured motor vehicle coverage may
				contain a provision requiring that the insured use reasonable diligence, upon
				learning that the tortfeasor is underinsured, to provide notice of any potential
				underinsured motorist claim within a reasonable period of time.
5.5. Underinsured motor vehicle coverage may
				contain a provision requiring notice of any settlement with the liability carrier
				consistent with W. Va. Code §
									33-6-31e.
5.6. Underinsured motor vehicle coverage may
				contain a provision excluding benefits for injuries which result from a motor
				vehicle collision which occurs within the course and scope of employment but only
				with respect to the fault of the employer or co-employee and not with regard to the
				fault of a third party.
5.7. With regard
				to underinsured motor vehicle coverage in the event of negligence by an unknown
				tortfeasor, the policy may contain a provision requiring a close and substantial
				physical nexus between the unidentified hit and run vehicle and the insured vehicle.
				"Close and Substantial Physical Nexus" means evidence which can be established by
				independent third party testimony to the satisfaction of the trial judge and the
				jury that, but for the immediate evasive action of the insured, direct physical
				contact would have incurred between the unknown vehicle and the victim.
5.8. Underinsured motor vehicle coverage may
				contain a provision providing for the right of subrogation against the tortfeasor,
				up to the amount paid under the underinsured motor vehicle endorsement, consistent
				with W. Va. Code §
									33-6-31(f).
5.9. Underinsured motor vehicle coverage may
				contain family member or similar exclusion precluding a guest passenger from
				collecting such benefits with respect to the negligence of the driver of the motor
				vehicle in which he or she is riding but such guest passenger may not be precluded
				from recovery of underinsured benefits with respect to the negligence of a third
				party.
5.10. Underinsured motor vehicle
				coverage may contain a provision precluding intra-policy stacking and inter-policy
				stacking.
5.11. Underinsured motor
				vehicle coverage may contain a family use exclusion to be applied when a passenger
				family member receives payment under the liability provisions with respect to the
				negligence of his or her driver thereby preventing the underinsured coverage from
				being converted into additional liability coverage.
5.12. Underinsured motor vehicle coverage may
				include a provision precluding recovery of underinsured benefits if the liability
				coverage of the tortfeasor with respect to whose negligence benefits are sought has
				not been exhausted.
5.13. Underinsured
				motor vehicle coverage may include a provision precluding benefits if the claimant
				is in an owned but not insured motor vehicle.
5.14
.
Underinsured motor vehicle
				coverage may include an exclusion for punitive damage liability.