Amendment #25, as changed to H4508

Insurance Requirements

Mr. Murphy of Weymouth moves to amend the bill by striking section 16 in its entirety and inserting in place thereof the following section:-

SECTION 16. The General Laws are hereby amended by inserting after chapter 90J the following chapter:-

CHAPTER 90K

PERSONAL VEHICLE SHARING COMPANIES

Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Personal vehicle sharing”, the use and operation of a motor vehicle by a person other than the vehicle’s registered owner for consideration, facilitated by a personal vehicle sharing company.

“Personal vehicle sharing company” or “company”, a corporation, partnership, sole proprietorship or other entity qualified to do business in the commonwealth that is engaged in facilitating personal vehicle sharing through a personal vehicle sharing platform.

“Personal vehicle sharing platform” or “platform”, any online-enabled application, software, website or system offered or utilized by a personal vehicle sharing company that facilitates personal vehicle sharing between an owner and a driver.

“Registry”, the registry of motor vehicles established pursuant to section 56 of chapter 6C.

“Shared motor vehicle” or “shared vehicle”, a private passenger motor vehicle designed primarily for the transport of persons, which is made available on a personal vehicle sharing platform.

“Shared vehicle agreement” or “agreement”, the written terms and conditions applicable to a shared vehicle owner and driver that govern the use of the shared motor vehicle during the vehicle sharing period. For the purposes of this chapter, shared vehicle agreements shall not be considered agreements to rent or lease a motor vehicle pursuant to sections 32C to 32F, inclusive, of chapter 90.

“Shared vehicle driver” or “driver”, an individual who is authorized to drive a shared vehicle by a personal vehicle sharing company.

“Shared vehicle owner” or “owner”, the registered owner of a private motor vehicle who makes such vehicle available through a personal vehicle sharing platform.

“Vehicle sharing period”, the period of time during which the motor vehicle is being shared through the personal vehicle sharing platform; provided, that the vehicle sharing period shall start at the time, pursuant to the agreement, the motor vehicle becomes subject to the control of the driver and end when the motor vehicle is returned to the location designated by the owner.

Section 2. (a) Prior to offering a motor vehicle for personal vehicle sharing on a personal vehicle sharing platform, the personal vehicle sharing company shall verify that the motor vehicle is in compliance with annual safety and emissions inspections pursuant to section 7A of chapter 90 and regulations promulgated pursuant to said section 7A of said chapter 90; or, if a motor vehicle is registered in another state, that the motor vehicle complies with the inspection requirement of the state where the motor vehicle is registered.

(b) A personal vehicle sharing company shall not authorize an individual to drive a shared vehicle unless the individual is at least 18 years of age and has a license to operate a motor vehicle.

(c) Prior to offering a motor vehicle on a personal vehicle sharing platform, the owner shall certify to the company that the motor vehicle is not subject to any unresolved safety recalls from the manufacturer. If a motor vehicle is subject to an unresolved safety recall, the owner shall not offer the motor vehicle for personal vehicle sharing on a platform until all safety recall repairs have been made.

If the shared vehicle owner receives notice of a safety recall while the shared vehicle is offered on a platform, the owner shall cause the vehicle to be unavailable for personal vehicle sharing on the platform not later than 72 hours after receiving notice of the safety recall. If the owner receives notice of a safety recall during a vehicle sharing period, as soon as possible, but not later than 72 hours after receiving notice of the safety recall, the owner shall notify both the company and the driver about the safety recall so the owner may address the safety recall repair.

Section 3. (a) Each personal vehicle sharing company shall carry adequate insurance, as required by section 231 of chapter 175, for each shared vehicle during the vehicle sharing period.

(b) A personal vehicle sharing company that provides insurance coverage to its drivers shall provide policies to the division of insurance to be placed on file.

(c) An owner shall provide notice to all insurers of the motor vehicle of their intent to make the motor vehicle available for personal vehicle sharing on a personal vehicle sharing platform prior to offering said vehicle on a personal vehicle sharing platform.

Section 4. A personal vehicle sharing company shall issue removable decals, in a form and manner prescribed by the registry, to a shared vehicle owner to designate the motor vehicle as a shared motor vehicle. The decals shall be applied to both the front and back panels of a motor vehicle at all times during a vehicle sharing period.

Section 5. A personal vehicle sharing company shall provide clear and conspicuous cost estimates to consumers for all transportation costs and any additional costs, which shall include, but not be limited to: the rate, either hourly, daily or by mileage, fees, insurance costs and any protection package costs that are charged to the shared vehicle owner or driver. If a rate is advertised by the personal vehicle sharing company, all fees must be clearly disclosed on the personal vehicle sharing platform.

A personal vehicle sharing company may charge a shared vehicle driver a separately stated fee to recover specified costs paid to a government entity that are incurred by the company.

Section 6. (a) Prior to offering a motor vehicle for personal vehicle sharing on a platform, the company shall notify the owner that, if the motor vehicle has a lien against it, the use of the motor vehicle through a personal vehicle sharing platform, including the use without physical damage coverage, may violate the terms of the contract with the lienholder.

(b) Each company shall disclose to the owner and the driver in the shared vehicle agreement:

(i) any right of the personal vehicle sharing company to seek indemnification from the shared vehicle owner or the shared vehicle driver for economic loss sustained by the personal vehicle sharing company resulting from a breach of the terms and conditions of the shared vehicle agreement;

(ii) that an automobile insurance policy issued to the shared vehicle owner for the shared vehicle or an automobile insurance policy issued to the shared vehicle driver does not provide a defense or indemnification for any claim asserted by the personal vehicle sharing company;

(iii) the automobile insurance requirements under section 231 of chapter 175, and any conditions under which a driver must maintain a personal automobile insurance policy with certain applicable coverage limits on a primary basis in order to use or operate a shared motor vehicle;

(iv) that an owner’s automobile insurance policy may not provide coverage for a shared vehicle;

(v) that the personal vehicle sharing company’s insurance coverage for the shared vehicle owner and the shared vehicle driver is in effect only during each vehicle sharing period and that, for any use of the motor vehicle by the driver outside of the vehicle sharing period, the driver and the owner may not be covered; and

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

Section 7. A personal vehicle sharing company and a shared vehicle owner shall be exempt from vicarious liability in accordance with 49 U.S.C. section 30106 and under any state or local law that imposes liability solely based on vehicle ownership.             

Section 8. A personal vehicle sharing company shall maintain records that shall include, but shall not be limited to: (i) the number of motor vehicles listed on the personal vehicle sharing platform; (ii) the number of owners who use the personal vehicle sharing platform; (iii) the average length of a vehicle sharing period; (iv) the percentage of drivers with a license to operate a motor vehicle from a state other than the commonwealth; (v) the breakdown of the cities or towns that serve as the designated location where a vehicle sharing period originates; (vi) the total mileage driven by a shared vehicle driver during each vehicle sharing period; (vii) the make, model and year of each shared vehicle; (viii) for each accident or crash involving a shared motor vehicle, the date and the time of the accident and the license plate of the motor vehicle; and (ix) the total cost paid by each shared vehicle driver for the vehicle sharing period.

Annually, not later than April 30, the personal vehicle sharing company shall compile these records and distribute said records to the Massachusetts Department of Transportation. Not later than June 30, the Massachusetts Department of Transportation shall publicly post the aggregate number of vehicle sharing periods from the previous calendar year originating within each city or town.

Section 9. An assessment shall be imposed on each personal vehicle sharing company at the rate of $1 per vehicle sharing period; provided, however, that for each vehicle sharing period that exceeds 24 hours, the assessment shall be at the rate of $1 per day. Annually, not later than February 1, each personal vehicle sharing company shall submit to the commissioner of revenue the assessment from the previous calendar year. The assessment collected pursuant to this section shall be credited to the Commonwealth Transportation Fund, established pursuant to section 2ZZZ of chapter 29.

And moves to further amend the bill by inserting, after section 21B, the following 2 new sections:-

SECTION 21C. Subsection (b) of section 168 of chapter 175, as so appearing, is hereby amended by inserting, in line 25, after the word “vehicles” the following words:- and shared motor vehicles.

SECTION 21D. Chapter 175 of the General Laws is hereby amended by adding the following new section:-

Section 231. (a) As used in this section, the words “personal vehicle sharing”, “personal vehicle sharing company”, “personal vehicle sharing platform”, “shared motor vehicle”, “shared vehicle agreement”, “shared vehicle driver”, “shared vehicle owner” and “vehicle sharing period” shall have the same definitions as set forth in section 1 of chapter 90K unless the context clearly requires otherwise.

(b) The insurance requirements in this section shall constitute adequate insurance for shared vehicles and shall satisfy the financial responsibility requirement for a motor vehicle established by section 34A of chapter 90 and section 113L; provided, however, that the insurance requirements in this section shall only satisfy the financial responsibility requirements for a motor vehicle established by said section 34A of said chapter 90 and said section 113L with respect to personal vehicle sharing through a personal vehicle sharing platform.

(c) A personal vehicle sharing company shall assume liability, except as provided in subsection (d), of a shared vehicle owner for bodily injury or property damage to third parties or uninsured and underinsured motorist or personal vehicle injury protection losses during the vehicle sharing period consistent with a motor vehicle liability policy, as defined in section 34A of chapter 90, and is in compliance with section 113L.

(d) Notwithstanding the foregoing, the assumption of liability under subsection (c) does not apply to any shared vehicle owner when:

(i) a shared vehicle owner makes an intentional or fraudulent material misrepresentation or omission to the personal vehicle sharing company before the vehicle sharing period in which the loss occurred; or

(ii) a shared vehicle owner acts in concert with a shared vehicle driver who fails to return the shared motor vehicle pursuant to the shared vehicle agreement.

(e) A personal vehicle sharing company shall ensure that:

(i) for the duration of each vehicle sharing period each shared motor vehicle that is offered on a personal vehicle sharing platform has an automobile liability policy for property damage, uninsured motorist coverage, to the extent required by section 113L and personal injury protection to the extent required by section 34A of chapter 90; and

(ii) the insurer of the required automobile liability policy recognizes that the shared vehicle insured under said policy is being offered for personal vehicle sharing or the automobile insurance policy does not exclude coverage of the motor vehicles used in  personal vehicle sharing.

(f) The automobile insurance may be held by the shared vehicle owner, the personal vehicle sharing company, the shared vehicle driver, or a combination thereof.

(g) In every instance where the automobile insurance maintained by a shared vehicle owner or shared vehicle driver to fulfill insurance requirements in subsection (b) has lapsed, failed to provide the required coverage, denied a claim for the required coverage or otherwise ceased to exist, insurance maintained by a personal vehicle sharing company shall provide the coverage required by said subsection (b), beginning with the first dollar of a claim, and shall have the duty to investigate and defend the claim.

(h) Coverage under an automobile insurance policy maintained by a personal vehicle sharing company shall not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurer be required to first deny a claim.

(i) Insurance required by this section shall be placed within an insurer authorized to do business in the commonwealth or, if such coverage is not available, from any admitted carrier, then with a surplus lines insurer eligible pursuant to section 168.

(j) Insurers that write automobile insurance policies may exclude any and all coverage afforded under the policy issued by an owner or driver of a shared vehicle used for personal vehicle sharing for any loss or injury that occurs during the personal vehicle sharing period. The right to exclude all coverage may apply to any coverage included in an automobile insurance policy, including but not limited to: (i) liability coverage for bodily injury and property damage; (ii) personal injury protection coverage as defined in section 34A of chapter 90; (iii) uninsured and underinsured motorist coverage; (iv) medical payments coverage; (v) comprehensive physical damage coverage; and (vi) collision physical damage coverage.

Such exclusions shall apply notwithstanding any requirement of said section 34A of chapter 90 and section 113L. Nothing shall preclude an insurer from providing coverage for the shared motor vehicle if the insurer so chooses to do so by contract or endorsement.

Automobile insurers that exclude the coverage described in this section shall not have a duty to defend or indemnify any claim expressly excluded by a policy.

Nothing in this section shall invalidate or limit an exclusion contained in a policy, including any policy in use or approved for use in the commonwealth before the enactment of this section that excludes coverage for vehicles used for vehicle sharing. An automobile insurer that defends or indemnifies a claim against a shared driver that is offered on a personal vehicle sharing platform that is excluded under the terms of its policy shall have a right of contribution against other insurers that provide automobile insurance to the same shared motor vehicle in satisfaction of the coverage requirements of this section at the time of loss.

(k) The insurance policy maintained by a personal vehicle sharing company shall assume primary coverage for a claim when it is providing the insurance required under subsection (c) and when:

(i) a dispute exists as to who was in control of the shared vehicle at the time of the loss; and

(ii) the personal vehicle sharing company does not have available, did not retain or fails to provide the information required by subsection (l).

(l) A personal vehicle sharing company shall collect and verify records pertaining to the use of a shared vehicle, including, but not limited to, times used, fees paid by the vehicle driver and revenue received by the shared vehicle owner and provide that information upon request to the shared vehicle owner, the shared vehicle owner’s insurer or the shared vehicle driver’s insurer to facilitate a claims coverage investigation. The personal vehicle sharing company shall retain the records for a time period not less than the applicable personal injury statute of limitations.

(m) An automobile insurer for the driver or owner shall have the right to seek contribution against the insurance policy maintained by the personal vehicle sharing company under subsection (c) for defense or indemnification of a claim if the claim was made against the shared vehicle owner or shared vehicle driver for loss or injury that occurred during the vehicle sharing period.