Bill S.2236

SENATE DOCKET, NO. 2112 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 2236

By Mr. Finegold, a petition (accompanied by bill, Senate, No. 2236) of Barry R. Finegold for legislation relative to peer-to-peer car sharing. Transportation.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to peer-to-peer car sharing.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The General Laws, as appearing in the 2022 Official Edition, are hereby amended by inserting after chapter 90J the following chapter:-

CHAPTER 90K. Personal Vehicle Sharing Companies

Section 1. Definitions

As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:-

“Car sharing delivery period”, the period of time during which a shared vehicle is being delivered to the location of the car sharing start time, if applicable, as documented by the governing car sharing program agreement.

“Car sharing period”, the period of time that commences with the car sharing delivery period or, if there is no car sharing delivery period, that commences with the car sharing start time and in either case ends at the car sharing termination time.

“Car sharing program agreement”, the terms and conditions applicable to a shared vehicle owner and a shared vehicle driver that govern the use of a shared vehicle through a peer-to-peer car sharing program; provided, however, that a car sharing program agreement shall not include a rental car agreement, as defined in section 32E½ of chapter 90.

“Car sharing start time”, the time when the shared vehicle becomes subject to the control of the shared vehicle driver at or after the time the reservation of a shared vehicle is scheduled to begin as documented in the records of a peer-to-peer car sharing program.

“Car sharing termination time”, the earliest of the following events:

(1) the expiration of the agreed upon period of time established for the use of a shared vehicle according to the terms of the car sharing program agreement if the shared vehicle is delivered to a location agreed upon in a car sharing program agreement;

(2) when the shared vehicle is returned to a location as alternatively agreed upon by the shared vehicle owner and shared vehicle driver as communicated through a peer-to-peer car sharing program; provided, however, that the alternatively agreed upon location shall be incorporated into the car sharing program agreement; or

(3) when the shared vehicle owner or the shared vehicle owner’s designee takes possession and control of the shared vehicle.

“Peer-to-peer car sharing”, the authorized use of a vehicle by an individual other than the vehicle’s owner through a peer-to-peer car sharing program; provided, however, that peer-to-peer car sharing does not include a rental car or rental activity as defined in section 32E½ of chapter 90.

“Peer-to-peer car sharing program”, a business platform that connect vehicle owners with licensed drivers to enable the sharing of vehicles for financial consideration; provided, however, that a peer-to-peer car sharing program does not include a rental car company as defined in section 32E½ of chapter 90.

“Shared vehicle”, a vehicle that is available for sharing through a peer-to-peer car sharing program; provided, however, that a shared vehicle does not include a rental car or rental vehicle as defined in section 32E½ of chapter 90.

“Shared vehicle driver”, an individual who has been authorized to drive the shared vehicle by the shared vehicle owner under a car sharing program agreement.

“Shared vehicle owner”, the registered owner, or a person or entity designated by the registered owner, of a vehicle made available for sharing to shared vehicle drivers through a peer-to-peer car sharing program.

Section 2. Assumption of Liability

(a) A peer-to-peer car sharing program shall assume liability, except as provided in subsection (b) of this section, from a shared vehicle owner for bodily injury, property damage to third parties, uninsured and underinsured motorists or personal injury protection losses during the car sharing period in an amount stated in the car sharing program agreement, which amount may not be less than those set forth in sections 34A to 34R, inclusive, of chapter 90.

(b) Notwithstanding the definition of “car sharing termination time” as set forth in section 1 of this chapter, the assumption of liability under subsection (a) of this section shall not apply to any shared vehicle owner if a shared vehicle owner:

(1) makes an intentional or fraudulent material misrepresentation or omission to the peer-to-peer car sharing program before the car sharing period in which the loss occurred; or

(2) acts in concert with a shared vehicle driver who fails to return the shared vehicle pursuant to the terms of the car sharing program agreement.

(c) Notwithstanding the definition of “car sharing termination time” as set forth in section 1 of this chapter, the assumption of liability under subsection (a) of this section shall apply to bodily injury, property damage, uninsured and underinsured motorists or personal injury protection losses caused to damaged third parties required by section 34A to 34N, inclusive of Chapter 90.

(d) A peer-to-peer car sharing program shall ensure that, during each car sharing period, the shared vehicle owner and the shared vehicle driver are insured under a motor vehicle liability insurance policy that provides insurance coverage in amounts no less than the minimum amounts set forth in section 34M of Chapter 90 and:

(1) recognizes that the shared vehicle insured under the policy is made available and used through a peer to-peer car sharing program; or

(2) does not exclude use of a shared vehicle by a shared vehicle driver.

(e) The insurance described under subsection (d) may be satisfied by motor vehicle liability insurance maintained by any of the following, alone or in combination:

(1) A shared vehicle owner;

(2) A shared vehicle driver; or

(3) A peer-to-peer car sharing program.

(f) The insurance required pursuant to subsection (d) shall be primary during each car sharing period and, in the event that a claim occurs in another state with minimum financial responsibility limits higher than those set forth in sections 34A to 34R, inclusive, of chapter 90 during the car sharing period, the coverage maintained pursuant to subsection (d) shall satisfy the difference in minimum coverage amounts, up to the applicable policy limits.

(g) The insurer, insurers or peer-to-peer car sharing program providing coverage under subsection (d) shall assume primary liability for a claim when:

(1) a dispute exists as to who was in control of the shared motor vehicle at the time of the loss and the peer-to-peer car sharing program does not have available, did not retain or fails to provide any applicable information as required by section 5 of this chapter; or

(2) a dispute exists as to whether the shared vehicle was returned to the alternatively agreed upon location incorporated into the car sharing program agreement, provided that any information retained pursuant to section 5 of this chapter is insufficient to resolve said dispute.

(h) If insurance maintained by a shared vehicle owner or shared vehicle driver in accordance with subsection (e) has lapsed or does not provide the required coverage, insurance maintained by a peer-to peer car sharing program shall provide the coverage required by subsection (d) beginning with the first dollar of a claim and have the duty to defend such claim except under circumstances as set forth in subsection (b).

(i) Coverage under an automobile insurance policy maintained by the peer-to-peer car sharing program shall not be dependent on another automobile insurer first denying a claim, nor shall another automobile insurance policy be required to first deny a claim.

(j) Nothing in this section shall be construed to:

(1) limit the liability of the peer-to-peer car sharing program for any act or omission of the peer-to-peer car sharing program itself that results in injury to any person as a result of the use of a shared vehicle through a peer-to-peer car sharing program; or

(2) limit the ability of the peer-to-peer car sharing program to, by contract, seek indemnification from the shared vehicle owner or the shared vehicle driver for economic loss sustained by the peer-to-peer car sharing program resulting from a breach of the terms and conditions of the car sharing program agreement.

Section 3. Notice to Shared Vehicle Owners Regarding Liens

At the time when a vehicle owner registers as a shared vehicle owner on a peer-to-peer car sharing program and prior to the time when the shared vehicle owner makes a shared vehicle available for car sharing on the peer-to-peer car sharing program, the peer-to-peer car sharing program shall provide clear and conspicuous notice to the shared vehicle owner that, if the shared vehicle has a lien against it, the use of the shared vehicle through a peer-to-peer car sharing program, including use without physical damage coverage, may violate the terms of the contract with the lienholder.

Section 4. Rights of Authorized Insurers

(a) An authorized insurer that writes motor vehicle liability insurance in this commonwealth may exclude any and all coverage and the duty to defend or indemnify for any claim afforded under a shared vehicle owner’s motor vehicle liability insurance policy, including but not limited to:

(1) liability coverage for bodily injury and property damage;

(2) personal injury protection coverage as defined in section 34M of chapter 90;

(3) uninsured and underinsured motorist coverage;

(4) medical payments coverage;

(5) comprehensive physical damage coverage; and

(6) collision physical damage coverage.

(b) Nothing in this chapter shall be construed to:

(1) invalidate or limit an exclusion contained in a motor vehicle liability insurance policy, including any insurance policy in use or approved for use that excludes coverage for motor vehicles made available for rent, sharing or hire or for any business use, except as provided for under existing law;

(2) invalidate, limit or restrict an insurer’s ability under existing law to underwrite any insurance policy; or

(3) invalidate, limit or restrict an insurer’s ability under existing law to cancel or non-renew policies.

Section 5. Retention of Records

(a) A peer-to-peer car sharing program shall collect and verify records pertaining to the use of a vehicle, including, but not limited to: (1) times used; (2) car sharing period pick up and drop off locations; (3) fees paid by the shared vehicle driver; and (4) revenues received by the shared vehicle owner.

(b) A peer-to-peer car sharing program shall provide that information upon request to: (1) the shared vehicle owner; (2) the shared vehicle owner’s insurer; (3) or the shared vehicle driver’s insurer to facilitate a claim coverage investigation, settlement, negotiation, or litigation.

(c) The peer-to-peer car sharing program shall retain the records for a time period not less than the applicable personal injury statute of limitations.

Section 6. Vicarious Liability

A peer-to-peer car sharing program and a shared vehicle owner shall be exempt from vicarious liability in accordance with 49 U.S.C. § 30106 and under any state or local law that imposes liability solely based on vehicle ownership.

Section 7. Recovery of Excluded Damages

A motor vehicle insurer that defends or indemnifies a claim against a shared vehicle that is excluded under the terms of its policy shall have the right to seek recovery against the motor vehicle insurer of the peer-to peer car sharing program if the claim is made against the shared vehicle owner or the shared vehicle driver for loss or injury that occurs during the car sharing period.

Section 8. Peer-to-Peer Car Sharing Program Insurable Interest

(a) Notwithstanding any other law, statute, rule or regulation to the contrary, a peer-to-peer car sharing program shall have an insurable interest in a shared vehicle during the car sharing period.

(b) Nothing in this section shall be construed to impose liability on a peer-to-peer car sharing program to maintain the coverage mandated by section 2 of this chapter, provided that the applicable coverage is maintained individually or in conjunction pursuant to subsections (d) and (e) of said section 2.

(c) A peer-to-peer car sharing program may own and maintain as the named insured one or more policies of motor vehicle liability insurance that provide coverage for:

(1) liabilities assumed by the peer-to-peer car sharing program under a car sharing program agreement;

(2) any liability of the shared vehicle owner;

(3) damage or loss to the shared motor vehicle; or

(4) any liability of the shared vehicle driver.

Section 9. Notice to Shared Vehicle Owners and Drivers

At the time of each car sharing program agreement made in this commonwealth, the peer-to-peer car sharing program shall disclose to both the shared vehicle owner and the shared vehicle driver in a clear and conspicuous notice:

(1) any right of the peer-to-peer car sharing program to seek indemnification from the shared vehicle owner or the shared vehicle driver for economic loss sustained by the peer-to-peer car sharing program resulting from a breach of the terms and conditions of the car sharing program agreement;

(2) that a motor vehicle liability insurance policy issued to the shared vehicle owner for the shared vehicle or to the shared vehicle driver does not provide a defense or indemnification for any claim asserted by the peer-to-peer car sharing program;

(3) that the peer-to-peer car sharing program’s insurance coverage on the shared vehicle owner and the shared vehicle driver is in effect only during each car sharing period and that, for any use of the shared vehicle by the shared vehicle driver after the car sharing termination time, the shared vehicle driver and the shared vehicle owner may not have insurance coverage;

(4) the daily rate, fees and, if applicable, any insurance or protection package costs that are charged to the shared vehicle owner or the shared vehicle driver;

(5) that the shared vehicle owner’s motor vehicle liability insurance may not provide coverage for a shared vehicle;

(6) an emergency telephone number to personnel capable of fielding roadside assistance and other customer service inquiries; and

(7) if there are conditions under which a shared vehicle driver must maintain a personal automobile insurance policy with certain applicable coverage limits on a primary basis in order to book a shared motor vehicle.

Section 10. Licensing of Shared Vehicle Drivers

(a) A peer-to-peer car sharing program shall not enter into a car sharing program agreement with a driver unless the driver who will operate the shared vehicle:

(1) holds a valid driver’s license issued under section 8 of chapter 90 which authorizes the driver to operate vehicles of the class of the shared vehicle; or

(2) is a nonresident of this commonwealth who:

(i) is at least the same age as that required of a resident of this commonwealth to driver and has a driver’s license issued by the state or country of the driver’s residence that authorizes the driver in that state or country to drive vehicles of the class of the shared vehicle; or

(ii) otherwise is specifically authorized by this commonwealth to drive vehicles of the class of the shared vehicle.

(b) A peer-to-peer car sharing program shall keep a record of:

(1) the name and address of the shared vehicle driver;

(2) the number of the driver’s license of the shared vehicle driver and each other person, if any, who will operate the shared vehicle; and

(3) the place of issuance of the driver’s license.

(c) A peer-to-peer car sharing program maintaining records pursuant to subsection (b) shall take reasonable precautions to ensure the security and privacy of personally identifiable information related to a shared vehicle owner or a shared vehicle driver.

Section 11. Peer-to-Peer Car Sharing Program Equipment

A peer-to-peer car sharing program shall have sole responsibility for any equipment, such as a GPS system or other special equipment that is put in or on the vehicle to monitor or facilitate the car sharing transaction pursuant to a car sharing program agreement, and shall agree to indemnify and hold harmless the shared vehicle owner for any damage to or theft of such equipment during the sharing period not caused by the shared vehicle owner. The peer-to-peer car sharing program has the right to seek indemnity from the shared vehicle driver for any loss or damage to such equipment that occurs during the sharing period.

Section 12. Shared Vehicle Safety Recalls

(a) At the time when a vehicle owner registers as a shared vehicle owner with a peer-to-peer car sharing program and prior to the time when the shared vehicle owner makes a shared vehicle available for car sharing on the peer-to-peer car sharing program, the peer-to-peer car sharing program shall:

(1) verify that the shared vehicle does not have any safety recalls on the vehicle for which the repairs have not been made; and

(2) notify the shared vehicle owner of the requirements under subsection (b) of this section.

(b) (1) If the shared vehicle owner has received an actual notice of a safety recall on the vehicle, a shared vehicle owner shall not make a vehicle available as a shared vehicle with a peer-to-peer car sharing program until the safety recall repair has been made.

(2) If a shared vehicle owner receives an actual notice of a safety recall on a shared vehicle while the shared vehicle is made available on the peer-to-peer car sharing program, the shared vehicle owner shall remove the shared vehicle as available on the peer-to-peer car sharing program as soon as practicably possible after receiving the notice of the safety recall and until the safety recall repair has been made.

(3) If a shared vehicle owner receives an actual notice of a safety recall while the shared vehicle is being used in the possession of a shared vehicle driver, the shared vehicle owner shall notify the peer-to-peer car sharing program about the safety recall as soon as practicably possible so that the shared vehicle owner may address the safety recall repair.

Section 13. Additional Regulations & Limitations

(a) The commissioner of insurance shall have the authority to promulgate rules that are not inconsistent with and necessary to administer and enforce the provisions of this chapter.

(b) This chapter is intended to govern the intersection of peer-to-peer car services and the business of insurance as regulated in this commonwealth. Nothing in this chapter shall be construed to extend beyond the regulation of insurance or have any implications for other provisions of the General Laws, including but not limited to, those related to motor vehicle regulation, airport regulation, or taxation.

SECTION 2. Section 1 shall take effect 18 months after the passage of this act.

Name:	District/Address:
Barry R. Finegold	Second Essex and Middlesex