MISSISSIPPI LEGISLATURE
2003 Regular Session
To: Insurance; Judiciary A
By: Representative Montgomery (74th)
AN ACT TO CREATE THE MISSISSIPPI MOTORISTS' PERSONAL PROTECTION ACT; TO PROVIDE FOR ITS PURPOSES AND DEFINITIONS; TO PROVIDE FOR INSURANCE REQUIREMENTS, RATES, POLICY TERMS, LIMITATIONS AND APPLICABILITY; TO PROVIDE FOR PAYMENT OF "PERSONAL COMPENSATION" BENEFITS AND INELIGIBLE INSUREDS; TO PROVIDE FOR OPTIONAL COVERAGES INCLUDING SCHEDULED PAIN AND SUFFERING COVERAGE; TO PROVIDE FOR MULTIPLE COVERAGES, PRIORITY AND COORDINATION OF BENEFITS; TO PROVIDE FOR TORT AND LEGAL LIABILITY RESTRICTIONS; TO PROVIDE FOR SUBROGATION RIGHTS OF INSURERS; TO PROVIDE FOR PAYMENT, ASSIGNMENT AND GARNISHMENT OF BENEFITS; TO PROVIDE FURTHER LIMITATIONS OF ACTIONS; TO PROVIDE FOR MANDATORY MENTAL AND PHYSICAL EXAMINATIONS; TO PROVIDE FOR ESTABLISHMENT OF AN ASSIGNED CLAIMS PLAN; TO PROVIDE FOR REGULATIONS BY THE COMMISSIONER OF INSURANCE; TO PROVIDE FOR ARBITRATION; TO PROVIDE FOR DECLARATORY JUDGMENT BY ANY PERSON; TO REPEAL SECTIONS 63-15-1 THROUGH 63-15-75, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE MISSISSIPPI MOTOR VEHICLE SAFETY-RESPONSIBILITY LAW; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the "Mississippi Motorists' Personal Protection Act."
SECTION 2. (1) Under existing law, motorists are required to have liability insurance primarily for the benefit of others. To protect themselves and their family members from motorists who choose not to comply with the law, consumers must purchase additional insurance coverage. Motorists who do not purchase the liability insurance as required by law are nonetheless permitted to make liability claims against motorists who have purchased liability insurance. The current system for compensating injured motorists in this state is inefficient and overcompensates persons with nonserious injuries. The costs of compensating injured persons are compounded by extraordinary litigation and claim-processing costs, costs which are ultimately borne by insurance consumers and taxpayers of this state.
(2) The purpose of this act is to:
(a) Permit motor vehicle owners to satisfy the laws of this state relating to motor vehicles as defined in Section 3(l) of this act by purchasing personal compensation coverage which will provide, without regard to fault, certain benefits for economic loss arising out of motor vehicle accidents and property damage liability coverage.
(b) Require motor vehicle insurers to make available scheduled pain and suffering coverage and other optional coverages.
(c) Eliminate the right to seek damages for noneconomic loss and compensated economic loss for motor vehicle accidents except in certain cases as provided in Section 10 of this act.
(d) Encourage motorists to comply with the state's motor vehicle insurance requirements by limiting rights of uninsured motorists to collect for noneconomic and economic loss.
(e) Speed the administration of justice, ease the burden of litigation on the courts of this state, decrease the expenses associated with litigation and create a system of arbitration of personal compensation claims.
(f) Correct imbalances and abuses in the operation of the motor vehicle accident insurance system, discourage fraudulent claim activity, encourage prompt medical treatment and rehabilitation, provide offsets to avoid duplicate recovery and require medical examinations.
SECTION 3. As used in this act, the following words and phrases have the meaning ascribed to them in this section unless a different meaning is plainly required by the context:
(a) "Accidental bodily injury" means bodily injury, sickness or disease, including death resulting therefrom, arising out of the operation, maintenance or use of a motor vehicle as a motor vehicle and which is accidental to the injured person.
(b) "Cause of action for injury" means a claim for accidental bodily injury caused by the negligent conduct or intentional misconduct of another person or organization and includes a claim by any person other than a person suffering accidental bodily injury based on such injury, including, but not limited to, lost of consortium, companionship or any other derivative claims.
(c) "Commissioner" means the Commissioner of Insurance.
(d) "Dependent" means all persons related to another person by blood, marriage, adoption or otherwise who reside in the same household as such person at the time of the accidental bodily injury and received financial or services support from him or her.
(e) "Driving under the influence of alcohol or illegal drugs" means:
(i) The driver was convicted or has pleaded nolo contendere to violating Section 63-11-1 et seq., or
(ii) The driver refused to undergo tests required by law for a violation of Section 63-11-1 et seq.
(f) "Economic loss" means pecuniary loss and monetary expenses incurred by or on behalf of an injured person as the result of an accidental bodily injury to such injured person.
(g) "Injured person" means a person who sustains accidental bodily injury, or where appropriate, the personal representative of an estate of the injured person.
(h) "Intentional misconduct" means an act or failure to act by a person for the purpose of causing harm to himself, or herself or another person, or with the knowledge that harm is likely to follow regardless of whether the results of the act or failure to act are the results expected or unexpected by the person causing the harm.
(i) "Loss of income from work" means eighty percent (80%) of the loss of income an injured person would have earned, except for the accidental bodily injury, through employment in his usual occupation or profession, reduced by one (1) of the following:
(i) Eighty percent (80%) of any income from substitute employment actually performed by the injured person.
(ii) Any income the injured person would have earned in available appropriate substitute employment which such person was capable of performing but unreasonably failed to undertake.
If the injured person was unemployed at the time of the accident, the loss of income from work shall be based on the unemployment compensation benefits the insured would have been eligible to receive except for the accidental bodily injury.
Loss of income from work shall not include any loss of income from work after the death of an injured person.
Benefits for loss of income from work shall not extend beyond two (2) years from the date of the accident that caused the accidental bodily injury.
(j) "Medical expenses" means reasonable expenses incurred by or on behalf of an injured person for necessary medical, chiropractic, surgical, x-ray, dental, ambulance, hospital, medical rehabilitation and professional nursing services, and also includes expenses for eyeglasses, hearing aids and prosthetic devices. To assure that the treatment and expenses are both reasonable and necessary, motor vehicle insurers may review or obtain a review of treatment and expenses before, during and after the course of treatment of an injured person. Benefits for medical expenses shall be payable only if the accidental bodily injury is discovered and treated within one (1) year of the date of the accident and then only for services, products or accommodations provided to the injured person within three (3) years of the date of the accident causing the injuries. "Medical expenses" shall not include:
(i) Any portion of the charge for a room in any hospital, clinic, convalescent or nursing home, extended care facility or any similar facility in excess of the reasonable and customary charge for semiprivate accommodations unless otherwise medically required.
(ii) Any portion of a charge or fee for any treatments, services, products or procedures that are experimental in nature, for research or not primarily designed to serve a medical purpose or not commonly and customarily recognized throughout the medical profession or, in the case of chiropractic care, not commonly and customarily recognized throughout the chiropractic profession in the United States as appropriate for treatment of accidental bodily injury.
(iii) That portion of any charge for services, products or accommodations which exceeds the amount the provider customarily charges and accepts as payment in full for like services, products or accommodations in cases not involving personal compensation.
(k) "Medical rehabilitation" means rehabilitation services reasonably necessary and designed to reduce the disability and dependence of an injured person and to restore such person, to the extent reasonably possible, to his preaccident level of physical functioning.
(l) "Motor vehicle" means a self-propelled vehicle of a kind required to be registered under the laws of this state for use on public roadways, other than a vehicle with three (3) or fewer load-bearing wheels. "Public roadway" means a way open to the use of the public for purposes of motor vehicle travel.
(m) "Motor vehicle insurer" means an insurer or qualified self-insurer providing insurance on motor vehicles under this act.
(n) "Noneconomic loss" means any loss other than economic loss and includes, but is not limited to, pain, suffering, inconvenience, mental anguish and other noneconomic damages otherwise recoverable under the laws of this state.
(o) "Occupying" means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.
(p) "Operation, maintenance or use" means operation, maintenance or use of a motor vehicle as a motor vehicle. "Operation, maintenance or use" shall not include:
(i) Conduct within the course of the business of repairing, servicing, washing, selling, maintaining or manufacturing a motor vehicle unless the conduct occurs off the business premises.
(ii) Conduct in the course of loading or unloading the motor vehicle unless the conduct occurs while occupying it.
(q) "Pedestrian" means any person not occupying a motor vehicle.
(r) "Person" means a human being.
(s) "Personal compensation" means insurance coverage with an aggregate limit of Fifteen Thousand Dollars ($15,000.00) per person per accident that provides benefits for economic loss sustained by a personal compensation insured resulting from accidental bodily injury, regardless of fault. "Personal compensation" consists of the following elements:
(i) Medical expenses.
(ii) Loss of income from work not to exceed Two Hundred Dollars ($200.00) per week.
(iii) Replacement services loss not to exceed One Hundred Dollars ($100.00) per week.
(iv) A death benefit of Five Thousand Dollars ($5,000.00) payable to the dependents, if any, or, if none, to the heirs or estate of the decedent if the death of the personal compensation insured occurs within one (1) years of the date of the accident causing the injuries.
(t) "Personal compensation benefits" means the benefits available under personal compensation.
(u) "Personal compensation insured" means:
(i) The person identified by name as an insured under a personal compensation policy and any other resident relative;
(ii) Any person who sustains accidental bodily injury while occupying the motor vehicle described on the declarations page of a personal compensation policy; or
(iii) With respect to accidents within this state, any person who sustains accidental bodily injury through being struck as a pedestrian by the motor vehicle described on the declarations page of a personal compensation policy.
(v) "Personal compensation policy" means a policy which provides personal compensation.
(w) "Property damage liability" means liability insurance coverage with a limit of at least Ten Thousand Dollars ($10,000.00), exclusive of interest and costs, for damage to property in any one (1) accident.
(x) "Replacement services loss" means expenses reasonably incurred for the ordinary and necessary services from others in lieu of those the injured person would have performed, not for income but for the benefit of his family, if he had not been injured. "Replacement services loss" shall not include expenses for services performed by any person residing in the household of the injured person, or services performed by any person related to the injured person. The benefits for replacement services loss shall not be paid if the injured person is entitled to receive personal compensation benefits for loss of income from work for the same time period. "Replacement services loss" shall not include any loss after the death of an injured person. Benefits for replacement services loss shall not extend beyond two (2) years from the date of the accident that caused the accidental bodily injury.
(y) "Resident relative" means a person related to the first person identified by name as an insured under a personal compensation policy by blood, marriage or adoption and residing in the same household. A person resides in the same household if he primarily makes his home in the same family unit even though temporarily living elsewhere.
(z) "Uncompensated economic loss" means that portion of economic loss arising out of an accidental bodily injury which exceeds the total of:
(i) The benefits provided by all applicable personal compensation policies or the assigned claims plan; and
(ii) Any benefits the injured person receives or is entitled to receive as reimbursement of loss because of an accidental bodily injury from sources other than a life insurance policy regardless of the nature or number of benefit sources available or their form.
"Uncompensated economic loss" shall not include any loss on account of the application of a deductible under a personal compensation policy or any economic loss which would have been paid under a personal compensation policy which the injured person or resident relative of the injured person was required to purchase by this act but failed to so purchase.
SECTION 4. (1) Every motor vehicle other than those owned by the federal government or any federal agency, required to be licensed for use on public roadways in this state shall be insured by an insurance policy providing for personal compensation and property damage liability coverages.
(2) A motor vehicle insurer shall also make available for purchase the forms of insurance coverage provided in this subsection (2). For motor vehicle policies in force on the effective date of this act, motor vehicle insurers shall make available these options as provided in Section 24 of this act. A decision to purchase or not to purchase any such coverages by any named insured or applicant shall be binding on all insureds covered by the motor vehicle policy and shall apply to all renewals and to all motor vehicle policies which extend, change, supersede or replace an existing policy until a named insured requests a change in coverage.
The forms of insurance coverage required to be made available by this subsection shall be:
(a) Personal compensation benefit limits in excess of Fifteen Thousand Dollars ($15,000.00), but not more than One Hundred Thousand Dollars ($100,000.00). Except as provided in subsection (2)(b) of this section, when the limit for personal compensation is One Hundred Thousand Dollars ($100,000.00), the coverage limit for loss of income from work shall be at least Five Hundred Dollars ($500.00) per week.
(b) The option to exclude personal compensation benefits for loss of income from work if no named insured or resident relative under the policy has earned any income from regular employment during the past thirty-one (31) days and does not expect to earn any income from regular employment for at least one hundred eighty (180) days from the date this option is requested.
(c) Motor vehicle bodily injury liability insurance with limits of at least Ten Thousand Dollars ($10,000.00), exclusive of interest and costs on account of injury to or death of one (1) person in any one (1) accident. Subject to the limit for any one (1) person, limits of at least Twenty Thousand Dollars ($20,000.00), exclusive of interest and costs on account of injury to or death of more than one (1) person in any one (1) accident.
(d) Scheduled pain and suffering coverage with limits of at least Ten Thousand Dollars ($10,000.00), but not exceeding One Hundred Thousand Dollars ($100,000.00). Scheduled pain and suffering coverage shall provide protection for noneconomic loss sustained by the person identified by name as an insured under a personal compensation policy and any other resident relative who sustains accidental bodily injury while such person is occupying a motor vehicle or if such person is a pedestrian struck by a motor vehicle. Scheduled pain and suffering coverage shall be paid according to the benefit table below, provided that no more than the largest benefit applicable shall be paid for any person with respect to all losses resulting from any one (1) accident.
(i) Loss of life: the principal sum;
(ii) Permanent and total disability: the principal sum;
(iii) Loss of two (2) or more members: the principal sum;
(iv) Loss of one (1) member: One-half (1/2) of the principal sum;
(v) Loss of thumb and index finger on the same hand: one-quarter (1/4) of the principal sum;
(vi) Permanent and total loss of hearing: One-half (1/2) of the principal sum;
(vii) Permanent and total loss of a sense of smell or taste: one-quarter (1/4) of the principal sum;
(viii) Loss of a finger or toe: one-eighth (1/8) of the principal sum;
(ix) Serious permanent disfigurement: one-eighth (1/8) of the principal sum; and
(x) Permanent and total loss of use of an internal organ: one-eighth (1/8) of the principal sum.
(e) The following definitions shall apply to scheduled pain and suffering coverage:
(i) "Loss" means, with regard to a hand or foot, permanent paralysis of the hand or foot or actual severance of the hand or foot through or above the wrist or ankle joints; with regard to an eye, entire and irrecoverable loss of sight; with regard to a thumb, permanent paralysis of the thumb or actual severance of the thumb through the proximal phalanx or metacarpal; with regard to the index finger or any other finger, permanent paralysis of the particular finger or actual severance of the particular finger through the middle or proximal phalanx or metacarpal; with regard to any toe, actual severance through the proximal phalanx or metacarpal of the particular toe.
(ii) "Member" means hand, foot or eye;
(iii) "Permanent and total disability" means for persons who are either twenty-one (21) years of age or older or working full time at the time of the accidental bodily injury, the insured's complete inability after one (1) year of continuous total disability to engage in an occupation or employment for which the insured is fitted by reason of education, training or experience for the remainder of the insured's life. "Continuous total disability" means the insured's complete inability during the first year thereof to perform every duty of the insured's occupation, such inability beginning thirty (30) days after the date of the accident. For persons who are both under twenty-one (21) years of age and not working full time at the time of the accidental bodily injury, permanent and total disability means for two (2) years having an abnormal electroencephalography, an abnormal brain magnetic resonance image or the presence of seizures for two (2) consecutive years.
(iv) "Principal sum" means the coverage limits of the policy for scheduled pain and suffering coverage.
(3) A motor vehicle insurer may elect to offer:
(a) Limits higher than those required by this section.
(b) Deductible and copayment options for the coverage described in subsection (2)(a) of this section.
(c) Limits in increments approved by the commissioner on the coverages in subsection (2)(c) on a combined limits basis instead of a split limits basis; or
(d) Coverages in addition to those required by this section.
(4) Any coverages provided under this section shall be subject to the policy terms, limitations, conditions and exclusions approved by the commissioner.
SECTION 5. (1) A personal compensation policy shall pay personal compensation benefits for accidental bodily injury of a personal compensation insured sustained within the United States of America, its territories or possessions or Canada.
(2) A personal compensation policy issued to satisfy this act shall, if an insured becomes subject to a compulsory motor vehicle insurance, financial responsibility or similar law of another state or Canada, provide the coverage required of nonresidents by the laws of that state or Canada.
SECTION 6. (1) A motor vehicle insurer shall not be obligated to provide personal compensation benefits to or on behalf of any injured person who:
(a) Was injured in a motor vehicle accident while committing a felony, while voluntarily operating or occupying a motor vehicle known by him to be stolen or while driving under the influence of alcohol or illegal drugs.
(b) Was injured while operating or occupying, or through being struck as a pedestrian by a motor vehicle owned by or furnished to or available for the regular use of the injured person, or the resident relative of the injured person, if such motor vehicle is not described in the policy under which a claim is made or is not a newly acquired or replacement motor vehicle covered under the terms of the policy.
(c) Was injured as a result of his or her intentional misconduct. If a person dies as a result of his or her intentional misconduct, his or her survivors are not entitled to personal compensation benefits for loss arising from the injury or death of the person.
(d) Was an uninsured motorist at the time of the accident causing the injuries. For purposes of this paragraph, "uninsured motorist" means a person who is the owner of a motor vehicle which is subject to the insurance requirements of this act, but who fails to purchase such coverage.
(e) Was injured while operating or occupying a motor vehicle involved in an organized race or speed contest.
(2) There is no coverage under a personal compensation policy for a person who is identified by name as an insured under that policy, or for any resident relative of that person, injured while operating or occupying a self-propelled vehicle of a kind required to be licensed under the laws of this state for use on public roadways with three (3) or fewer load-bearing wheels.
(3) Nothing contained herein shall prevent a motor vehicle insurer from providing personal compensation benefits to or on behalf of any injured person mentioned in this section, if there is clear language in the personal compensation policy manifesting an intent to provide such coverage.
SECTION 7. (1) Personal compensation benefits when due shall be payable at the option of the motor vehicle insurer to any of the following:
(a) The injured person.
(b) The parent or guardian of the injured person, if the injured person is a minor or incompetent.
(c) A dependent survivor or the executor or administrator of the estate of the injured person.
(d) Any person or organization rendering the services, products or accommodations for which payment is due.
(2) A motor vehicle insurer, with the approval of the commissioner, may utilize managed care systems, including, but not limited to, preauthorization plans, payment of medical expenses covered under a personal compensation policy. The insurer may require an injured person to obtain health care through a managed care system designed by the motor vehicle insurer if such injured person has opted at the time of purchase of personal compensation at an appropriately reduced premium to be subject to such a managed care system. The motor vehicle insurer may impose a One Thousand Dollars ($1,000.00) per person per accident deductible for health care for products obtained outside of the managed care system. The deductible shall not apply to care or products provided, or expenses incurred, during the first twenty-four (24) hours in which emergency treatment has been provided, or until the injured person's emergency medical condition is stabilized, whichever is longer.
SECTION 8. (1) Any person entitled to personal compensation benefits required or provided under this act shall claim the personal compensation benefits from motor vehicle insurers in the following order of priority:
(a) The personal compensation policy covering a motor vehicle involved in the accident if the injured person was an occupant of such motor vehicle at the time of the accident.
(b) The personal compensation policy under which the injured person qualifies as a personal compensation insured because the person is a named insured under such policy.
(c) The personal compensation policy under which the injured person qualifies as a personal compensation insured because the person is a resident relative.
(d) The personal compensation policy under which the injured person qualifies as a personal compensation insured other than as described in paragraphs (a), (b) or (c) of this subsection.
(2) If a personal compensation insured is entitled to benefits under more than one (1) personal compensation policy or coverage, the maximum recovery may not exceed the amount payable under the policy or coverage with the highest limit.
(3) If two (2) or more insurers are obligated to pay personal compensation benefits in accordance with priorities set out in this section, the motor vehicle insurer against whom the claim is first made shall pay the claim as if wholly responsible and may thereafter recover contribution pro rata from any other motor vehicle insurer at the same priority level for the cost of the payments. For purposes of this section, an unoccupied parked motor vehicle is not a motor vehicle involved in an accident unless it was parked in such a way as to cause unreasonable risk of injury.
SECTION 9. A motor vehicle insurer shall be primarily obligated to indemnify a personal compensation insured who sustains accidental bodily injury. However, personal compensation benefits are excess over and shall not duplicate the amount of all benefits an injured person recovers, or is entitled to recover, under a state or federal mandated disability coverage or worker's compensation law or similar occupational injury law because of the same accidental bodily injury.
SECTION 10. (1) Except as provided in subsection (3) of this section, there shall exist no cause of action for injury caused, in whole or in part, by the operation, maintenance or use of a motor vehicle subject to this act other than for uncompensated economic loss.
(2) Except as provided in subsection (3) of this section, an uninsured motorist, in addition to the limitations imposed by subsection (1) of this section, shall not have a cause of action to recover damages for:
(a) The first Fifteen Thousand Dollars ($15,000.00) of economic loss resulting from accidental bodily injury; and
(b) The first Ten Thousand Dollars ($10,000.00) of property damage resulting from an accident arising out of the operation, maintenance or use of a motor vehicle.
For purposes of this subsection, "uninsured motorist" means a person or organization who is the owner of a motor vehicle which is subject to the insurance requirements of this act, but who fails to purchase such coverage.
(3) A person shall have a cause of action for injury against any negligent party who caused the injury while committing a felony or while driving under the influence of alcohol or illegal drugs. A person shall also have a cause of action for injury caused by intentional misconduct of another person. It shall be against the public policy of this state for a motor vehicle insurer to pay under any liability coverage the damages assessed against a party under this subsection except for compensatory damages where such damages are assessed on account of the vicarious liability of an insured.
SECTION 11. A motor vehicle insurer shall be subrogated, to the extent of any personal compensation benefits to all of the rights of its insured with respect to an accident caused in whole or in part by any person or organization who is not protected by the limitations on tort rights and liabilities pursuant to Section 10 of this act.
SECTION 12. (1) If personal compensation benefits have not been paid, no offset shall be allowed against the personal compensation benefits because of the value of a cause of action for injury, except after a monetary recovery is gained under the cause of action. A subtraction shall be undertaken, but for no more than the amount of the net recovery, exclusive of reasonable attorney fees and other expenses actually incurred in affecting the recovery.
(2) If personal compensation benefits have already been received, the recipient shall repay to the motor vehicle insurer, out of such recovery, a sum equal to the personal compensation benefits received but not more than the realized net recovery, exclusive of reasonable attorney fees and other expenses actually incurred in affecting the recovery. The motor vehicle insurer shall have a lien on the recovery equal to the personal compensation benefits received.
(3) Any remainder of the net recovery from such cause of action applies periodically against loss as it accrues, until an amount equal to the net recovery under such a cause of action has been subtracted.
SECTION 13. (1) Personal compensation benefits are payable as loss accrues. Loss accrues, not when the accidental bodily injury occurs, but when medical expense, loss of income from work or replacement services loss occurs, or when the injured person dies. The benefits for accrued losses are overdue if not paid within thirty (30) days after the motor vehicle insurer receives reasonable proof of the fact and the amount of loss sustained, except that a motor vehicle insurer may accumulate claims for periods not exceeding thirty (30) days, and benefits are not overdue if paid within twenty (20) days after the period of accumulation, subject to the right of review specified in this act. If reasonable proof is not supplied as to the entire claim, the amount which is supported by reasonable proof shall be paid as described herein, and any part of the remainder of the claim that is later supported by reasonable proof shall at the time be paid as described herein.
(2) For the purpose of calculating the extent to which any personal compensation benefits are overdue, payment shall be treated as made on the date a draft or other valid instrument is placed in the United States mail in a properly addressed postpaid envelope, or, if not so posted, on the date of personal delivery to the insured.
(3) If a motor vehicle insurer is found after an administrative hearing by the commissioner or upon review by a court of competent jurisdiction to be in violation of this section, the exclusive remedy shall be the recovery of the personal compensation benefits in question with interest at a rate of twelve percent (12%) per annum beginning from the date the benefits in controversy were due, and court costs and reasonable attorney fees. In the event of willful or wanton failure of a motor vehicle insurer to comply with this section, the recovery will be three (3) times the amount of the personal compensation benefits which were determined to be overdue.
SECTION 14. (1) Personal compensation benefits are exempt from garnishment, attachment, execution or any other process or claim to the extent that wages or earnings are exempt under any applicable law.
(2) An agreement for assignment of any right to personal compensation benefits payable in the future shall be unenforceable except to the extent that:
(a) Such benefits are for the cost of services, products or accommodations provided or to be provided by the assignee; or
(b) Benefits for loss of income from work or replacement services loss are assigned to secure payment of alimony, maintenance or child support.
SECTION 15. (1) Subject to the arbitration provisions in Section 21 of this act, if no personal compensation benefits have been paid, an action therefore may be commenced against the motor vehicle insurer no later than two (2) years after the date of the accident causing the injuries.
(2) Subject to the arbitration provisions in Section 21 of this act, and subsection (3) of this section, if personal compensation benefits have been paid, an action for recovery of further personal compensation benefits may be commenced no later than two (2) years after the last payment of personal compensation benefits.
(3) In no event shall an action for personal compensation benefits be commenced against a motor vehicle insurer more than four (4) years after the date of the accident that caused the injuries.
SECTION 16. (1) Whenever the mental or physical condition of an injured person is material to any claim that has been or may be made for personal compensation benefits, such injured person, upon request of a motor vehicle insurer, shall submit to reasonable mental or physical examinations by a physician, chiropractor or other medical provider designated by the motor vehicle insurer at a reasonably convenient time and location, subject to regulations, if any, promulgated by the commissioner. The cost of any such examination requested by a motor vehicle insurer shall be borne entirely by the insurer.
(2) Where a motor vehicle insurer has requested in writing that an injured person submit to mental or physical examinations under subsection (1) of this section, and such person refuses to comply with the request, the insurer may, upon written prior notice, suspend all incurred but unpaid and future personal compensation benefits until the injured person complies with the request.
SECTION 17. (1) Upon request of a motor vehicle insurer, an employer shall furnish a statement of the work record and earnings of an employee who has filed a claim for personal compensation benefits. The statement shall cover the period specified by the motor vehicle insurer and may include a reasonable period before, and the entire period after, the date of the accident causing the injuries.
(2) Every physician, chiropractor, hospital, clinic or other medical provider providing, before or after an injury upon which a claim for personal compensation benefits is based, any services, products or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested to do so by the motor vehicle insurer against whom the claim has been made, furnish a written report of the history, condition and treatment, and the dates and costs of such treatment of the injured person. The information shall be provided with a sworn statement that the services, products or accommodations rendered were reasonable and necessary with respect to the injury sustained and identifying which portion of the expenses for such services, products or accommodations were incurred as a result of such injury. Every physician, chiropractor, hospital, clinic or other medical provider shall also promptly produce and permit the inspection and copying of its records regarding such history, condition and treatment, and the dates and costs thereof. The person providing a sworn statement required under this section shall attest to it as follows:
"Under penalty of perjury, I declare that I have read the foregoing and the facts alleged are true, to the best of my knowledge and belief."
(3) No cause of action for violation of a physician-patient privilege or invasion of the right of privacy shall exist against any physician, chiropractor, hospital, clinic or other medical provider complying with the provisions of this section. The person requesting records or the sworn statement under this section shall pay all reasonable costs connected therewith.
(4) A dispute regarding the right to the discovery of facts about an injured person by the motor vehicle insurer may be resolved through arbitration as provided in this act or by a court of competent jurisdiction by an order for the discovery.
SECTION 18. (1) Motor vehicle insurers authorized to provide motor vehicle insurance under this act shall organize, participate in, and maintain an assigned claims plan to provide benefits equivalent to the minimum personal compensation required by this act to any injured person covered by this act, if:
(a) Personal compensation benefits are not applicable to the injury for a reason other than a reason specified in Section 6 of this act.
(b) Personal compensation benefits are unavailable, in whole or in part, because of the financial inability of a motor vehicle insurer to fulfill its obligations. Payments by the assigned claims plan under this paragraph shall constitute covered claims of the Mississippi Guaranty Association under the laws of this state.
(2) The assigned claims plan shall provide for rules and agreements for the operation of the plan and equitable distribution of costs as approved by the commissioner.
(3) Any claim brought through the assigned claims plan shall be assigned to a motor vehicle insurer in accordance with such rules and agreements, and that insurer, after such assignments, shall have the rights and obligations it would have had if, before such assignment, it had issued a personal compensation policy containing the minimum personal compensation required by law.
(4) Any person accepting personal compensation benefits under the assigned claims plan shall have the rights and obligations he would have had under a policy issued to him providing the minimum personal compensation required by law.
(5) Notwithstanding any other provision in this act to the contrary, benefits available through the assigned claims plan shall be reduced to the extent that benefits covering the same loss are available from other sources, regardless of the nature or number of benefit sources available and regardless of the nature or form of the benefits.
(6) If a claim qualifies for assignment under this section, the assigned claims plan and the motor vehicle insurer to whom the claim is assigned shall be subrogated to all of the rights of the claimant against any person or organization liable for such loss and against any insurer, its successor in interest, or any other person or organization legally obligated to provide personal compensation benefits to the injured person for benefits provided by the assignment.
SECTION 19. Each motor vehicle insurer shall adopt an actuarially sound program which provides incentives, in the form of increased benefits, reduced premiums, or other methods for insureds to purchase motor vehicles equipped with automatic seat and harness belts or air bags.
SECTION 20. The commissioner may adopt necessary regulations to provide for the effective administration of this act that are consistent with its purposes.
SECTION 21. (1) Any dispute with respect to personal compensation benefits between a motor vehicle insurer and an injured person, or the dependents or estate of such person, may be submitted to arbitration if the insurer and such person agree. Only the dispute which the parties have agreed to arbitrate may be addressed by the arbitration.
(2) Upon agreement for arbitration, each party shall select a competent arbitrator and the two arbitrators so named shall select a third arbitrator. If unable to agree on the third arbitrator within thirty (30) days, either may request a judge of a court of record in the county in which the arbitration is pending to select a third one. The written decision of any two arbitrators shall be binding on each party.
(3) The cost of the arbitrator and any expert witness shall be paid by the party who selected them. The cost of the third arbitrator and other expenses of arbitration shall be shared equally by both parties.
(4) The arbitration shall take place in the county in which the insured resides unless the parties agree to another location. State court rules governing procedure and admission of evidence shall be used. Any final decision of the arbitrators shall be subject to judicial review if filed in a court of competent jurisdiction within thirty (30) days of the date of the decision of the arbitrators.
SECTION 22. Each motor vehicle insurer authorized to transact, or transacting business in this state, shall file with the commissioner, as a condition of its continued transaction of business within this state, a form approved by the commissioner declaring that any contract of primary motor vehicle insurance, wherever issued, covering the operation, maintenance or use of a motor vehicle while the motor vehicle is in this state, is deemed to provide at least personal compensation and property damage liability coverages at the minimum limit required by the laws of this state. Any nonadmitted insurer may also file such form.
SECTION 23. Any person involved in any motor vehicle accident in this state is subject to the tort and liability limitations set forth in this act.
SECTION 24. (1) The changes in motor vehicle insurance coverage requirements and the limitation of tort rights and liabilities as provided in this act shall become operative six (6) months after the declaratory judgment provided in Section 26 of this act is rendered. At least thirty (30) days before the operative date, motor vehicle insurers shall notify policyholders who hold motor vehicle liability policies on the date of such mailing of the new limitation on tort rights. At the same time motor vehicle insurers shall provide those policyholders the opportunity to purchase the options required to be made available by Section 4 of this act. If the policyholder does not request optional coverage prior to the operative date of this act, the policy will include personal compensation with the minimum limits required by this act. All other coverages previously purchased by a named insured shall remain in effect, with the exception that motor vehicle insurers may delete any coverage they provide which would essentially duplicate the coverage provided under personal compensation benefits on the date personal compensation benefits are added to a policy. If the policy holder requests any of the optional coverages, the requested coverage shall be effective on the operative date of this act if the request is received by the motor vehicle insurer prior to the operative date of this act. If received by the motor vehicle insurer on or after the operative date of this act, the requested coverage shall be effective at 12:01 a.m. on the day after the request was received.
(2) For any motor vehicle liability insurance policies in force on the operative date of this act, the policyholder shall be credited with the pro rata portion of any rate reduction due to the reduction in hazard because of the limitation on tort rights and liabilities effective for motor vehicle accidents occurring on or after the operative date of this act, and assessed a pro rata charge for the coverage provided under subsection (1) of this section. Any net credit which results can be made to the policyholder at the option of the motor vehicle insurer by:
(a) A refund to the policyholder mailed or paid on or before the expiration of the policy;
(b) A credit against the policyholder's renewal premium with a refund being made to the policyholder if the policyholder refuses the renewal offer; or
(c) A credit against any premium due on the policy.
SECTION 25. (1) Except as provided in subsection (2) of this section, if any provision of this act or the application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid, the remainder of this act and the application of such provision to other persons or circumstances shall not be affected thereby and is to be conclusively presumed that the Legislature would have enacted the remainder of this act without the invalid or unconstitutional provision.
(2) If Section 10(1) of this act is found to be unconstitutional or invalid, it is to be conclusively presumed that the Legislature would not have enacted the remainder of this act without such limitations and the entire act is invalid.
SECTION 26. (1) Because the Legislature finds and declares that questions of law may be raised by some parties with respect to the constitutionality of some of the sections of this act, the public welfare requires that such questions with respect to this act be resolved with expedition prior to such time as its mandatory provisions take effect in order to avoid disruption of the orderly implementation of its provisions. Therefore, the Legislature finds that the remedy of declaratory judgment to determine the constitutionality of the provisions of this act should be immediately made available to determine those important questions in order to avoid confusion by the public.
(2) Any resident of the state may institute an action for a declaratory judgment against the commissioner to determine the constitutionality of the provisions of this act. The court shall reserve the questions of law for the advice of the Supreme Court as provided by law. In the interest of expediting a decision, the Supreme Court may suspend its rules.
SECTION 27. (1) (a) Option 1: One of the purposes of this act is to lower the cost of motor vehicle insurance. Therefore, each motor vehicle insurer's statewide average premiums for minimum personal compensation coverage during the first year following the effective date of this act shall be at least twenty percent (20%) less than the motor vehicle insurer's statewide average premium for Ten Thousand Dollars ($10,000.00)/Twenty Thousand Dollars ($20,000.00) bodily injury liability coverage on the day preceding the effective date of this act, unless the motor vehicle insurer can demonstrate at a rate hearing that such a decrease will result in inadequate rates for the motor vehicle insurer; or
(b) Option 2: One of the purposes of this act is to lower the costs of motor vehicle insurance. Therefore, each motor vehicle insurer's statewide average premium for the minimum personal compensation coverage and Ten Thousand Dollars ($10,000.00) property damage liability insurance during the first year following the effective date of this act shall be at least thirty percent (30%) less than the motor vehicle insurer's statewide average premiums for the insurance required by the financial responsibility laws of this state and Ten Thousand Dollars ($10,000.00)/Twenty Thousand Dollars ($20,000.00) uninsured motorist coverage, on the day preceding the effective date of this act, unless the motor vehicle insurer can demonstrate at a rate hearing that such a decrease will result in inadequate rates for the motor vehicle insurer.
(2) The Department of Insurance shall promulgate additional rules and regulations to implement this act. If Section 10(1) of this is ruled unconstitutional in whole or in part, motor vehicle insurers may recoup any resulting losses actually incurred.
(3) All motor vehicle insurers who write policies under this act shall file appropriate rates for personal compensation, bodily injury liability, property damage liability and uninsured motorist coverage with the Mississippi Department of Insurance no later than two (2) months after the declaratory judgment provided in Section 26 of this act is rendered.
SECTION 28. Sections 63-15-1 through 63-15-75, Mississippi Code of 1972, which provides for the Mississippi Motor Vehicle Safety Responsibility Law, are repealed.
SECTION 29. This act shall take effect and be in force from and after July 1, 2003.