§431:10C-305 Source of payment.

(a)(1) A claim for personal injury protection benefits for accidental harm of a person who is not an occupant of any motor vehicle involved in a motor vehicle accident may be made against the insurer of any involved vehicle; and

(2) The insurer against whom the claim is asserted shall process and pay the claim as if wholly responsible, but the insurer shall thereafter be entitled to recover from the insurer of all other involved vehicles proportionate contribution for the benefits paid and the cost of processing the claim.

(b)(1) Except as provided in paragraph (2), personal injury protection benefits shall be paid primarily from the following sources in the following conditions:

(A) The insurance on the vehicle occupied by the injured person at the time of the accident; or

(B) The insurance on the vehicle which caused accidental harm if the injured person is a pedestrian (including a bicyclist).

If there is no insurance on the vehicle, any other motor vehicle insurance applicable to the injured person shall apply.

No person shall recover personal injury protection benefits from more than one insurer for accidental harm as a result of the same accident;

(2) All personal injury protection benefits shall be paid secondarily and net of any benefits a person is entitled to receive because of the accidental harm from workers' compensation laws; provided that:

(A) The total amount a person is entitled to receive for monthly earnings loss under this article shall be limited to the amount of any applicable coverage under section 431:10C-302, without any deduction of any amount received as compensation for lost earnings under any workers' compensation law;

(B) The aggregate of the payments from both sources shall not exceed eighty per cent of the person's monthly earnings as provided in section 431:10C-302(a)(4). However, if the person's employer provides both workers' compensation and personal injury protection payments, the aggregate shall not exceed the person's net monthly earnings (computed by subtracting the total of federal and state income taxes and employee social security contributions from the gross monthly earnings), provided that the workers' compensation payments shall not be less than required by chapter 386; and

(C) This section shall not apply to benefits payable to a surviving spouse and any surviving dependent as provided under section 431:10C-304.

If the person does not collect such benefits under the workers' compensation laws by reason of the contest of this right to so collect by the person or organization responsible for payment thereof, the injured person, if otherwise eligible, shall, nevertheless, be entitled to receive personal injury protection benefits and, upon payment thereof, the personal injury protection insurer shall be subrogated to the injured person's rights to collect such benefits.

(c)(1) If a temporary substitute vehicle is made available to a customer by an auto repair shop registered with the motor vehicle repair industry board or a motor vehicle dealer licensed by the motor vehicle industry licensing board, while the shop or dealer repairs or services the customer's insured motor vehicle, the motor vehicle insurance policy of the customer's insured motor vehicle shall be primary over the policy on the temporary substitute vehicle; and

(2) In the event that a customer's insured motor vehicle is operated by a registered repair shop in the course of service or repair, or to verify repairs, the motor vehicle insurance policy of the registered repair shop shall be primary over the policy on the customer's insured motor vehicle.

(d) The following persons are not eligible to receive payment of personal injury protection benefits:

(1) Occupants of a motor vehicle other than the insured motor vehicle;

(2) Operator or user of a motor vehicle engaging in criminal conduct which causes any loss; or

(3) Operator of a motorcycle or motor scooter as defined in section 286-2.

This subsection shall not preclude recovery in other capacities under a motor vehicle insurance policy covering a vehicle which the person did not occupy at the time of the accident. [L 1987, c 347, pt of §2; am L 1989, c 208, §4; am L 1991, c 149, §1; am L 1997, c 251, §42]

Case Notes

Section does not toll §431:10C-315's statute of limitations; section requires workers' compensation claim to be paid prior to any no-fault benefits payments. 794 F. Supp. 1012 (1992).

Owned vehicle exclusion in policy is valid because it is consistent with section and legislative intent of no-fault law. 73 H. 552, 836 P.2d 1074 (1992).