Current through Register Vol. 35, No. 18, September 24, 2024
A.
Policy
provisions: None of the insuring agreements, exclusions or conditions of
the policy shall apply to the insurance afforded by this endorsement except the
conditions "[**]", "changes", "assignment", "cancellation" and
"declarations".
B.
Premium: If during the policy period the number of insured motor
vehicles owned by the [*] or spouse or the number of dealer's license plates
issued to the [*] changes, the insured shall notify the company during the
policy period of any change and the premium shall be adjusted in accordance
with the manuals in use by the company. If the earned premium thus computed
exceeds the advance premium paid, the insured shall pay the excess to the
company; if less, the company shall return to the insured the unearned portion
paid by the insured.
C.
Proof of claim:
(1) As soon as
practicable, the insured or other person making claim shall give to the company
written proof of claim, under oath if required, including full particulars of
the nature and extent of the injuries, treatment, and other details entering
into the determination of the amount payable under the endorsement. The insured
and every other person making a claim under the endorsement shall submit to
examinations under oath by any person named by the company and subscribe the
same, as often as may reasonably be required. Proof of claim shall be made upon
forms furnished by the company unless the company shall have failed to furnish
the forms within 15 days after receiving notice of claim.
(2) The injured person shall submit to
physical examination by physicians selected by the company when and as often as
the company may reasonably require and he, or in the event of his incapacity
his legal representative, or in the event of his death his legal representative
or the person or persons entitled to sue on his behalf, shall upon request from
the company execute authorization to enable the company to obtain medical
reports and copies of records.
(3)
The insured or other person making claim for damage to property shall file
proof of loss with the company within sixty days after the occurrence of loss,
unless such time is extended in writing by the company, in the form of a sworn
statement setting forth the interest of the insured and of all others in the
property affected, any encumbrances thereon, the actual cash value thereof at
time of loss, the amount, place, time and cause of such loss, and the
description and amounts of all other insurance covering such property. Upon the
company's request, the insured shall exhibit the damaged property to the
company.
D.
Assistance and cooperation of the insured: After notice of claim under
this endorsement, the company may require the insured to take such action as
may be necessary or appropriate to preserve his right to recover damages from
any person or organization alleged to be legally responsible for the bodily
injury or property damage; and in any action against the company, the company
may require the insured to join such person or organization as a party
defendant.
E.
Notice of
legal action: If, before the company makes payment of loss under the
endorsement, the insured or his legal representative shall institute any legal
action for bodily injury or property damage against any person or organization
legally responsible for the use of a motor vehicle involved in the accident, a
copy of the summons and complaint or other process served in connection with
such legal action shall be forwarded immediately to the company by the insured
or his legal representative.
F.
Limits of liability:
(1) The
company's limit of bodily injury liability for all damages, including damages
for care and loss of services, arising out of bodily injury sustained by one
person in any one accident shall not exceed the amount specified for unknown
motorist/uninsured motorist coverage as stated on the declarations page for
bodily injury to one person in any one accident. Subject to this provision, the
company's limit of liability for all such damages arising out of bodily injury
sustained by two or more persons in any one accident shall not exceed the
amount specified for unknown motorist/uninsured motorist coverage as stated on
the declarations page for bodily injury to two or more persons in any one
accident.
(2) The company's limit
of property damage liability shall not exceed the amount specified for unknown
motorist/uninsured motorist coverage as stated on the declarations page for all
damages in excess of $250 arising out of injury to or destruction of all
property of one or more insureds as the result of any one accident.
(3) Any amount payable under this coverage
because of bodily injury or property damage sustained in an accident by a
person who is an insured under this coverage shall be reduced by:
(a) all sums paid on account of such bodily
injury or property damage by or on behalf of the owner or operator of the
uninsured motor vehicle and any other person or organization jointly or
severally liable together with such owner or operator for such bodily injury or
property damage including all sums paid under bodily injury
liability;
(b) the amount paid and
the present value of all amounts payable on account of such bodily injury under
any worker's compensation law, disability benefits law or any similar
law;
(c) the amount paid or payable
to such an insured under any policy of property insurance.
(4) Any payment made under this endorsement
to or for any insured shall be applied in reduction of the amount of damages
which he may be entitled to recover from any person insured under the bodily
injury liability coverage of the policy.
(5) The company shall not be obligated to pay
under this coverage that part of the damages which the insured may be entitled
to recover from the owner or operator of an uninsured motor vehicle which
represents expenses for medical services paid or payable under the medical
payments coverage of the policy.
G.
Other insurance:
(1) With respect to bodily injury to an
insured while occupying a motor vehicle not owned by the [*], the insurance
under this endorsement shall apply only as excess insurance over any other
similar insurance available to such insured and applicable to such automobile
as primary insurance, and this insurance shall then apply only in the amount by
which the limit of liability for this coverage exceeds the applicable limit of
liability of the other insurance.
(2) Except as provided in Paragraph (1) of
Subsection G of 13.12.3.17 NMAC, if the insured has other similar bodily injury
insurance available to him and applicable to the accident, the damages for
bodily injury shall be deemed not to exceed the higher of the applicable limits
of liability of this insurance and such other insurance, and the company shall
not be liable for a greater proportion of any loss to which this coverage
applies than the limit of liability under this endorsement bears to the sum of
the applicable limits of liability of this insurance and the other
insurance.
(3) With respect to
property damage, the insurance afforded under this endorsement shall be excess
insurance over any other valid and collectible insurance against the property
damage.
H.
Arbitration: The insured and the company may agree to arbitrate any
claim or dispute arising under this endorsement. The arbitration shall comply
with applicable law, including Sections
66-5-301
through -303 NMSA 1978 regarding uninsured motorist's insurance and the Uniform
Arbitration Act, Sections
44-7A-1
through
44-7A-32
NMSA 1978.
I.
Trust
agreement: In the event of payment to any person under this endorsement:
(1) the company shall be entitled to the
extent of the payment to the proceeds of any settlement or judgment that may
result from the exercise of any rights of recovery of the person against any
person or organization legally responsible for the bodily injury or property
damage because of which the payment is made;
(2) the person shall hold in trust for the
benefit of the company all rights of recovery which he shall have against such
other person or organization because of the damages which are the subject of a
claim made under this endorsement;
(3) the person shall do whatever is proper to
secure and shall do nothing after loss to prejudice such rights;
(4) if requested in writing by the company,
the person shall take, through any representative designated by the company,
action as may be necessary or appropriate to recover the payment as damages
from the other person or organization, the action to be taken in the name of
the person; in the event of a recovery, the company shall be reimbursed out of
the recovery for expenses, costs and attorneys' fees incurred by it in
connection therewith;
(5) the
person shall execute and deliver to the company instruments and papers as may
be appropriate to secure the rights and obligations of the person and the
company established by this provision.
J.
Payment of loss by the
company: A amount due under this endorsement is payable:
(a) to the insured; or
(b) if the insured be a minor to his parent
or guardian; or
(c) if the insured
be deceased to his surviving spouse; otherwise
(d) to a person authorized by law to receive
the payment or to a person legally entitled to recover the damages which the
payment represents; provided, the company may at its option pay any amount due
under this endorsement in accordance with division (d).
K.
Action against company. No
action shall lie against the company unless, as a condition precedent thereto,
the insured or his legal representative has fully complied with all the terms
of this endorsement.
L.
Conformity with state statutes. Any provision of this endorsement which
on its effective date is in conflict with the statutes of the state of New
Mexico is hereby amended to conform to the minimum requirements of the
statutes.
