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Filing # 99697718 E-Filed 12/03/2019 11:46:58 AM
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
TREVOR RICHARDS
and NOVLAT RICHARDS,
Plaintiffs,
vs. Case No: 50-2017-CA-012343-
XXXX-MB
ACE AMERICAN INSURANCE
COMPANY,
Defendant.
/
ACE AMERICAN INSURANCE COMPANY’S MOTION FOR
FINAL SUMMARY JUDGMENT AND INCORPORATED
MEMORANDUM OF LAW
PART 3 OF 3
*** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK. 12/03/2019 11:46:58 AM ***2. A_ partnership,
corporation or any other form of organization,
then the following are "insureds":
a. Anyone “occupying” a covered "auto" or a
b. Anyone else “occupying” a covered "auto"
or a temporary substitute for a covered
"auto". The covered "auto" must be out of
service because of its breakdown, repair,
servicing, “loss” or destruction.
. Anyone for damages he or she is entitled to
recover because of "bodily injury” sustained
by another “insured”.
limited liability company,
temporary substitute for a covered "auto".
The covered "auto" must be out of service
because of its breakdown, repair, servicing,
"loss" or destruction.
. Anyone for damages he or she is entitled to
recover because of "bodily injury" sustained
by another "insured".
C. Exclusions
This insurance does not apply to:
a
Page 2 of 4
Punitive or exemplary damages.
. The direct or indirect benefit of any insurer or
self-insurer under any workers' compensation,
disal benefits or similar law.
"Bodily injury" sustained by:
a. An individual Named Insured while
“occupying” or when struck by any vehicle
owned by that Named Insured that is not a
covered "auto" for Underinsured Motorists
Coverage under this Coverage Form;
. Any “family member" while “occupying” or
when struck by any vehicle owned by that
“family member" that is not a covered “auto”
for Underinsured Motorists Coverage under
this Coverage Form; or
. Any “family member" while "occupying" or
when struck by any vehicle owned by the
Named Insured that is insured for
Underinsured Motorists Coverage on a
primary basis under any other Coverage
Form or policy.
. Anyone using a vehicle without a reasonable
belief that the person is entitled to do so.
“Bodily injury" arising directly or indirectly out
a. War, including undeclared or civil war,
b. Warlike action by a military force, including
action in hindering or defending against an
actual or expected attack, by any
government, sovereign or other authority
using military personnel or other agents; or
c. Insurrection, rebellion, revolution, usurped
power, or action taken by governmental
authority in hindering or defending against
any of these.
D. Limit Of Insurance
1.
© Insurance Services Office, Inc., 2013
A379
Regardless of the number of covered "autos",
"insureds", premiums paid, claims made or
vehicles involved in the "accident", the most we
will pay for all damages resulting from any one
"accident" is the applicable limit of Uninsured
Motorists Coverage and Underinsured
Motorists Coverage shown in the endorsement
Schedule. However, subject to the provisions
in Paragraphs D.1.a. and b. below, in the case
of an "accident" involving both an “uninsured
motor vehicle" and an “underinsured motor
vehicle", the most we will pay is both the limit
of Uninsured Motorists Coverage and the limit
of Underinsured Motorists Coverage shown in
the endorsement Schedule.
a. The limit entry for Uninsured Motorists
Coverage in the endorsement Schedule
applies only to "uninsured motor vehicles"
as defined in Paragraph F.3. of the
Additional Definitions section.
b. The limit entry for Underinsured Motorists
Coverage in the endorsement Schedule
applies only to “underinsured motor
vehicles" as defined in Paragraph F.4. of
the Additional Definitions section.
No one will be entitled to receive duplicate
payments for the same elements of "loss".
We will not make a duplicate payment under
this coverage for any element of "loss" for
which payment has been made by or for
anyone who is legally responsible, including all
sums paid under this Coverage Form's
Covered Autos Liability Coverage.
We will not pay for any element of "loss" ifa
person is entitled to receive payment for the
same element of "loss" under any workers’
compensation, disability benefits or similar law.
. With respect to damages resulting from an
“accident” with an "underinsured motor
vehicle", the limit of liability shall be reduced by
all sums paid by or for anyone who is legally
responsible, including all sums paid under this
Coverage Form's Covered Autos Liability
Coverage.
. Any amount paid under this coverage will
reduce any amount an "insured" may be paid
under this Coverage Form's Covered Autos
Liability Coverage.
CA 21 41 02 14E. Changes In Conditions
The following condition is changed for Uninsured
Motorists Coverage only:
Transfer Of Rights Of Recovery Against Others
To Us is replaced by the following:
Transfer Of Rights Of Recovery Against Others
To Us
If we make any payment and the "insured"
recovers from another party, the "insured" shall
hold the proceeds in trust for us and pay us back
the amount we have paid.
The Conditions are changed for Uninsured And
Underinsured Motorists Coverage as follows:
4. Other Insurance in the Auto Dealers and
Business Auto Coverage Forms and Other
Insurance — Primary And Excess Insurance
Provisions in the Motor Carrier Coverage
Form are replaced by the following:
If there is other applicable insurance available
under one or more policies or provisions of
coverage:
a. Any insurance we provide with respect to a
vehicle the Named Insured does not own
shall be excess over any other collectible
uninsured or underinsured motorists
insurance providing coverage on a primary
basis.
b. If the coverage under this Coverage Form
is provided:
(1) On a primary basis, we will pay only our
share of the loss that must be paid
under insurance providing coverage on
a primary basis. Our share is the
proportion that our limit of liability bears
to the total of all applicable limits of
liability for coverage on a primary basis.
On an excess basis, we will pay only our
share of the loss that must be paid
under insurance providing coverage on
an excess basis. Our share is the
proportion that our limit of liability bears
to the total of all applicable limits of
liability for coverage on an excess basis.
2. Duties In The Event Of Accident, Claim, Suit
Or Loss in the Business Auto and Motor
Carrier Coverage Forms and Duties In The
Event Of Accident, Claim, Offense, Suit,
Loss Or Acts, Errors Or Omissions in the
Auto Dealers Coverage Form are changed by
adding the following:
a. Promptly notify the police if a hit-and-run
driver is involved; and
(2)
b. Promptly send us copies of the legal papers
if a "suit" is brought.
3. The following condition is added:
Arbitration
a. If we and an "insured" disagree whether the
"insured" is legally entitled to recover
damages from the owner or driver of an
"uninsured motor vehicle" or "underinsured
motor vehicle" or do not agree as to the
amount of damages that are recoverable by
that “insured”, then the parties may agree to
arbitration. However, disputes concerning
coverage under this endorsement may not
be arbitrated. If both parties agree to
arbitrate, each party will select an arbitrator.
The two arbitrators will select a third. If they
cannot agree within 30 days, either may
request that selection be made by a judge
of a court having jurisdiction. Each party will
pay the expenses it incurs and bear the
expenses of the third arbitrator equally.
b. Unless both parties agree otherwise,
arbitration will take place in the county in
which the "insured" lives. Local rules of law
as to arbitration procedure and evidence
will apply. A decision reached by two of the
arbitrators will not be binding on either
party.
F, Additional Definitions
As used in this endorsement:
4. "Family member" means a person related to an
individual Named Insured by blood, marriage
or adoption, who is a resident of such Named
Insured's household, including a ward or foster
child.
. "Occupying" means in, upon, getting in, on, out
or off.
. "Uninsured motor vehicle" means a land motor
vehicle or “trailer”:
a. For which no liability bond or policy at the
time of an "accident" provides at least the
amounts required by the applicable law
where a covered “auto” is principally
garaged; or
b. For which an insuring or bonding company
denies coverage or is or becomes
insolvent; or
c. Which is a hit-and-run vehicle and neither
the driver nor owner can be identified or
which causes an “accident” resulting in
"bodily injury" without hitting an “insured”, a
covered "auto" or a vehicle an "insured" is
"occupying".
CA 21 41 02 14 © Insurance Services Office, Inc., 2013 Page 3 of 4
A380However, “uninsured motor vehicle" does not
include any vehicle:
a. Owned or operated by a self-insurer under
any applicable motor vehicle law, except a
self-insurer who is or becomes insolvent
and cannot provide the amounts required
by that motor vehicle law;
b, Owned by a governmental unit or agency;
or
c. Designed for use mainly off public roads
while not on public roads.
"Underinsured motor vehicle" means a land
motor vehicle or “trailer” to which a liability
bond or policy applies at the time of an
"accident", but the amount paid for "bodily
injury" to an “insured” under that bond or policy
is not enough to pay the full amount the
“insured” is legally entitled to recover as
damages.
=
However, "underinsured motor vehicle" does
not include any vehicle:
a. Owned or operated by a self-insurer under
any applicable motor vehicle law;
b. Owned by a governmental unit or agency;
c. Designed for use mainly off public roads
while not on public roads;
Which is an “uninsured motor vehicle"; or
e. For which an insuring or bonding company
denies coverage or is or becomes
insolvent.
Page 4 of 4 © Insurance Services Office, Inc., 2013 CA 21 41 02 14
A381POLICY NUMBER: ISA H09052082 Endorsement Number: 122
COMMERCIAL AUTO
CA 01 46 10 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
TENNESSEE CHANGES
For a covered "auto" licensed in, or “auto dealer operations" conducted in, Tennessee, this endorsement modifies
insurance provided under the following:
AUTO DEALERS COVERAGE FORM
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by
this endorsement.
A. Changes In Covered Autos Liability Coverage
Paragraph 2.b.(4) of the Who Is An Insured provision
of the Auto Dealers Coverage Form does not apply.
B. Changes In Conditions
4. The following replaces the lead-in paragraph to the
(3) At the time of an "accident" a person
described in Paragraph a.(2) is operating an
"auto" owned by the business described in
Paragraph a.(1), then that person's liability
insurance is primary and the policy issued to
a business described in Paragraph a.(1) is
CA 01 46 10 13
Duties In The Event Of Accident, Claim, Suit Or
Loss Condition in the Business Auto and Motor
Carrier Coverage Forms and the Duties In The
Event Of Accident, Claim, Offense, Suit, Loss
Or Acts, Errors Or Omissions Condition in the
Auto Dealers Coverage Form:
We have no duty to provide coverage under this
policy if the failure to comply with the following
duties is prejudicial to us:
. The Other Insurance Condition in the Auto
Dealers and Business Auto Coverage Forms and
the Other Insurance — Primary and Excess
Insurance Provisions Condition in the Motor
Carrier Coverage Form are changed by adding the
following:
a. When two policies providing liability insurance
apply to an "auto" and:
{1) One provides coverage to a named
“insured” engaged in the business of selling,
repairing, servicing, delivering, testing, road
testing, parking or storing "autos";
(2) The other provides coverage to a person not
engaged in that business; and
A382
© Insurance Services Office, Inc., 2012
excess over any insurance available to that
person.
b. When two policies providing liability insurance
apply to an "auto" and:
(1) One provides coverage to a named
"insured" engaged in the business of
repairing, servicing, parking or storing
"autos",
The other provides coverage to a person not
engaged in that business; and
(3) At the time of an “accident” an "insured"
under the policy described in Paragraph
b.(1) is operating an “auto” owned by a
person described in Paragraph b.(2), then
the liability insurance policy issued to the
business described in Paragraph b.(1) is
primary and the policy issued to a person
described in Paragraph b.(2) is excess over
any insurance available to the business.
(2)
Page 1 of 1For a covered "auto" li
following:
With respect to coverage provided by this endorst
the endorsement.
CA 01 96 10 13
POLICY NUMBER: ISA H09052082
Endorsement Number: 123
COMMERCIAL AUTO
CA 01 96 10 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
TEXAS CHANGES
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
A. Changes In Physical Damage Coverage
4. The following exclusion is added to Paragraph B.
Exclusions in the Physical Damage Coverage
section:
We will not pay for "loss" due to or as a
consequence of a seizure of a covered "auto" by
federal or state law enforcement officers as
evidence in a case against you under the Texas
Controlled Substances Act or the federal
Controlled Substances Act if you are convicted in
such case.
2. Paragraphs C.2. and C.3. of the Limit Of
Insurance provision under Physical Damage
Coverage do not apply.
3. Paragraph D. Deductible in the Physical
Damage Coverage section is amended by the
addition of the following:
At the mutual agreement of you and us, we will
not apply the deductible to "loss" to glass, if the
glass is repaired rather than replaced.
B. Changes In Conditions
The following condition is added:
Claim-handling Procedures
4. Within 15 days after we receive written notice of a
claim, we will:
a. Acknowledge receipt of the claim. If we do not
acknowledge receipt of the claim in writing, we
will keep a record of the date, method and
content of the acknowledgment;
b. Begin any investigation of the claim; and
A383
icensed or principally garaged in Texas, this endorsement modifies insurance provided under the
ement, the provisions of the Coverage Form apply unless modified by
c. Specify the information you must provide in
accordance with Paragraph b. of the Duties
Condition.
We may request more information at a later date,
if during the investigation of the claim such
additional information is necessary.
. After we receive the information we request, we
will notify you in writing as to whether:
a. The claim will be paid;
b. The claim has been denied, and inform you of
the reasons for denial;
c. More information is necessary; or
d. We need additional time to reach a decision. If
we need additional time, we will inform you of
the reasons for such need.
We will provide notification, as described in 2.a.
through 2.d. above, within:
a. 15 “business days"; or
b. 30 days if we have reason to believe the "loss"
resulted from arson.
If we have notified you that we need additional
time to reach a decision, we must then either
approve or deny the claim within 45 days of such
notice.
. If a claim results from a weather-related
catastrophe or a major natural disaster as defined
by the Texas Department of Insurance, the claim-
handling deadlines described above are extended
for an additional 15 days.
. If we notify you that we will pay your claim, or part
of your claim, we will pay within five "business
days" after we notify you.
© Insurance Services Office, Inc., 2013 Page 1 of 2Page 2 of 2
However, if payment of the claim or part of the
claim is conditioned on your compliance with any
of the terms under this Policy, we will make
payment within five "business days" after the date
you have complied with such terms.
5. We will notify the first Named Insured in writing
a. An initial offer to settle a claim made or "sui
brought against any “insured” under Covered
Autos Liability Coverage of this Policy. The
notice will be given no later than the 10th day
after the date on which the offer is made.
b. Any settlement of a claim made or "suit"
brought against the "insured" under Covered
Autos Liability Coverage of this Policy. The
notice will be given not later than the 30th day
after the date of settlement.
As used in this condition, "business day" means a
day other than Saturday, Sunday or a holiday
recognized by the state of Texas.
. Changes In Uninsured/Underinsured Motorists
Coverage
All references to "Uninsured Motorists Coverage" in
the title or text of any Coverage Form or
endorsement thereto are changed to read
"Uninsured/Underinsured Motorists Coverage".
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© Insurance Services Office, Inc., 2013
D. Changes In Trailer Interchange Coverage
The following exclusion is added to Paragraph B.
Exclusions of Section Ill -— Trailer Interchange
Coverage in the Motor Carrier Coverage Form and
to Paragraph B.2. Exclusions of the Motor Carrier
Endorsement if attached:
Texas Controlled Substance Act
We will not pay for "loss" due to or as a consequence
of a seizure of a covered “auto” by federal or state
law enforcement officers as evidence in a case
against you under the Texas Controlled Substances
Act or the federal Controlled Substances Act if you
are convicted in such case.
E. Changes In Garagekeepers Coverage
if the Garagekeepers Coverage Endorsement or the
Garagekeepers Coverage — Customers' Sound-
receiving Equipment endorsement is attached, the
following exclusion is added:
Texas Controlled Substance Act
We will not pay for "loss" due to or as a consequence
of a seizure of a covered "auto" by federal or state
law enforcement officers as evidence in a case
against you under the Texas Controlled Substances
Act or the federal Controlled Substances Act if you
are convicted in such case.
CA 01 96 10 13POLICY NUMBER: ISA H09052082
Endorsement Number: 124
COMMERCIAL AUTO
CA 02 43 11 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
TEXAS CHANGES —
CANCELLATION AND NONRENEWAL
This endorsement modifies insurance provided under the following:
AUTO DEALERS COVERAGE FORM
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by
the endorsement.
A. Paragraphs 2. and 5. of the Cancellation Common
Policy Condition contained in Endorsement IL 00 17
are replaced by the following:
2. We may cancel this policy:
a. By mailing or delivering to the first Named
Insured written notice of cancellation, stating
the reason for cancellation, at least 10 days
before the effective date of cancellation.
b. For the following reasons, if this policy does
not provide coverage to a governmental unit,
as defined under 28 TEX. ADMIN. CODE,
Section 5.7001:
(1) If this policy has been in effect for 60 days
or less, we may cancel for any reason
except, that under the provisions of the
Texas Insurance Code, we may not cancel
this policy solely because the policyholder
is an elected official.
(2) If this policy has been in effect for more
than 60 days, or if it is a renewal or
continuation of a policy issued by us, we
may cancel only for one or more of the
following reasons:
(a) Fraud in obtaining coverage;
(b) Failure to pay premiums when due;
(c) An increase in hazard within the control
of the insured which would produce an
increase in rate;
(d) Loss of reinsurance covering all or part
of the risk covered by the policy; or
(e) If we have been placed in supervision,
conservatorship or receivership and the
cancellation is approved or directed by
the supervisor, conservator or receiver.
c. For the following reasons, if this policy
provides coverage to a governmental unit, as
defined under 28 TEX. ADMIN. CODE,
Section 5.7001:
(1) If this policy has been in effect for less than
90 days, we may cancel this policy for any.
reason.
(2) If this policy has been in effect for 90 days
or more, or if it is a renewal or continuation
of a policy issued by us, we may cancel
this policy, only for the following reasons:
(a) If the first Named Insured does not pay
the premium or any portion of the
premium when due;
(b) If the Texas Department of Insurance
determines that continuation of this
policy would result in violation of the
Texas Insurance Code or any other law
governing the business of insurance in
Texas;
(c) If the Named Insured submits a
fraudulent claim; or
(d) If there is an increase in the hazard
within the control of the Named Insured
which would produce an increase in
rate.
CA 02 43 11 13 © Insurance Services Office, Inc., 2013 Page 1 of 2
A385Page 2 of 2
5. If this policy is canceled, we will send the first
Named Insured any premium refund due. The
refund will be pro rata, subject to the policy
minimum premium. The cancellation will be
effective even if we have not made or offered a
refund.
B. The following condition is added:
Nonrenewal
41. We may elect to renew this policy except that
under the provisions of the Texas Insurance
Code, we may not refuse to renew this policy
solely because the policyholder is an elected
official.
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© Insurance Services Office, Inc., 2013
2. If we elect not to renew this policy, we may do so
by mailing or delivering to the first Named
Insured, at the last mailing address known to us,
written notice of nonrenewal, stating the reason
for nonrenewal, at least 60 days before the
expiration date. If notice is mailed or delivered
less than 60 days before the expiration date, this
policy will remain in effect until the 61st day after
the date on which the notice is mailed or
delivered. Earned premium for any period of
coverage that extends beyond the expiration date
will be computed pro rata based on the previous
year's premium.
CA 02 43 11 13POLICY NUMBER: ISA H09052082
Endorsement Number: 125
COMMERCIAL AUTO
CA 99 95 10 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
TEXAS SUPPLEMENTARY DEATH BENEFIT
This endorsement modifies insurance provided under the following:
AUTO MEDICAL PAYMENTS COVERAGE
PERSONAL INJURY PROTECTION COVERAGE
With respect to coverage provided by this endorsement, the
the endorsement.
This endorsement changes the
provisions of the Coverage Form apply unless modified by
policy effective on the inception date of the policy unless another date is indicated below.
Named Insured: Chubb Group Holdings Inc.
Endorsement Effective Date:
A. Coverage
We will pay under the provisions of personal injury
protection insurance and/or auto medical payments
insurance as afforded by this policy except as limited
by this endorsement.
We will pay a supplementary death benefit equal to
the limit shown for the coverages but not exceeding
ten thousand dollars ($10,000) per person because
of death:
4. Caused by an "auto" "accident"; and
2. Sustained by an "insured" while wearing a "seat
belt" or protected by an "airbag".
We will pay the benefit if death from an “auto”
"accident" occurs within three years of the date of
such “accident”.
B. Proof Of Claim For Death Benefit
The "beneficiary" must furnish us with proof of death
of the “insured”, accompanied by a police report or
other suitable proof, that the “insured” at the time of
the "auto" "accident" was wearing a “seat belt" or
protected by an “air bag".
C. Other Insurance
Any amounts payable under the supplementary
death benefit shall not be reduced by any other
amounts paid or payable under this policy.
CA 99 95 10 13
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© Insurance Services Office, Inc., 2012
D. Additional Definitions
The following are added to the Definitions section
and have special meaning for Supplementary Death
Benefit:
4. "Insured" as used in this endorsement means the
same persons who are covered under auto
medical payments insurance and/or personal
injury protection insurance.
2. "Seat belt" means manual or automatic safety
belts or seat and shoulder restraints or a child
restraint device.
3. "Airbag" is a functioning airbag designed to
protect the occupant of a seat in an "auto".
4. "Beneficiary". means (in order of priority of
payment):
a. The surviving spouse if a resident in the same
household as the deceased at the time of the
"accident"; or
b. If the deceased is an unmarried minor, either
of the surviving parents who had legal custody
at the time of the "accident"; or
c. The estate of the deceased.
Page 1 of 1POLICY NUMBER: ISA H09052082 Endorsement Number: 126
MM 99 28 04 11
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
UNINSURED MOTORISTS COVERAGE - MASSACHUSETTS
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by
the endorsement.
A. Coverage
We will pay all sums an insured is legally entitled to recover as damages from the owner or operator of an “uninsured
motor vehicle.” The damages must result from “bodily injury” sustained by the insured caused by an “accident.” The
owner's or operator's liability for these damages must result from the ownership, maintenance or use of an
“uninsured motor vehicle.”
The most we will pay for damages to or for anyone injured in the following situations is $35,000 for each person and
$80,000 for each “accident” or the limits you purchased, whichever is less:
4. Anyone injured while using a covered “auto” without the consent of the owner.
2. Anyone injured while a covered “auto” is being operated in a prearranged or organized racing, speed or
demolition contest or in practice or preparation for any such contest.
This coverage does not apply to the direct or indirect benefit of any insurer or self-insurer under any workers’
compensation or similar law.
1. Whois an Insured:
a. You, while “occupying” a covered “auto,” while “occupying” an “auto” you do not own, or if injured as a
“pedestrian.”
b. If the form of your business under Item One of the Declarations is shown as an individual, any “household
member,” while “occupying” a covered “auto,” while “occupying” an “auto” not owned by you, or if injured as a
“pedestrian.”
If there are two or more policies which provide coverage at the same limits, we will only pay our
proportionate share. We will not pay damages to or for any “household member” who has a Massachusetts
MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 1 of 4
A388MM 99 28 04 11
auto policy of his or her own or who is covered by any Massachusetts auto policy of another “household
member” providing uninsured auto insurance with higher limits.
c. Anyone else while “occupying” a covered “auto.” We will not pay damages to or for anyone else who has a
Massachusetts auto policy of his or her own, or who is covered by any Massachusetts auto policy of another
“household member” providing uninsured auto insurance.
d. Anyone else for damages he or she is entitled to recover because of injury to a person under this coverage.
If you are injured while “occupying” a covered “auto” and you have two or more “autos” insured with us with different
limits, we only pay up to the limits shown on the Declarations for the “auto” you are “occupying” when injured.
If your are injured as a “pedestrian” or while “occupying” an “auto” you do not own and you have two or more
Massachusetts auto policies which provide coverage at different limits, the policy with the higher limits will pay. If
there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share.
We will not pay damages to or for you if struck by, or while “occupying” an “auto” you own and which does not have
Massachusetts compulsory auto insurance.
Likewise, we will not pay damages to or for any “household member” if struck by, or while “occupying” an “auto”
owned by that “household member” which does not have Massachusetts compulsory auto insurance.
B. Limits Of Insurance
1. The most we will pay for injuries to one or more persons as a result of bodily injury to any one person in any one
“accident” is shown on the Declarations as the “each person” limit. Subject to this limit, the most we will pay for
injuries to two or more people as the result of bodily injury to two or more people in any one “accident” is shown
‘on the Declarations as the “each accident” limit. This is the most we will pay as the result of a single “accident.”
2. The limits of two or more “autos” or policies shall not be added together, combined, or stacked, to determine the
limits of coverage available to anyone covered under this insurance, regardless of the number of “autos”
involved, persons covered, claims made, or premiums shown on the Declarations.
3. We will not make payments under this coverage which duplicate payments provided under uninsured auto
insurance of any other auto policy.
MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 2 of 4
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4. We will reduce the damages an injured person is entitled to recover by:
a. The amount recovered from any legally responsible person provided the injured person is fully compensated
for his or her damage for bodily injury.
b. The amount paid under a workers’ compensation law or similar law.
We will pay the balance of the damages up to the limits shown for this coverage on the Declarations.
C. Changes In Conditions
The conditions are changed for Uninsured Motorists Coverage as follows:
1. Other Insurance is deleted.
2. Two or More Coverage Forms or Policies Issued By Us is deleted.
D. Additional Conditions
The following conditions are added for Uninsured Motorists Coverage:
1. Arbitration
If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or
operator of an “uninsured motor vehicle” or do not agree as to the amount of damages, either party may make a
written demand for arbitration. However, in no event may a demand for arbitration constitute first notice of claim.
We must be given sufficient notice of claim to conduct a reasonable investigation and attempt settlement before
arbitration can be used.
2. Settlement or Judgment
If an insured person settles a claim as a result of an “accident” covered under this coverage, we will pay that
person only if the claim was settled with our consent.
We will not be bound under this coverage by any judgment resulting from a lawsuit brought without our written
consent. We will not, however, unreasonably withhold our consent.
MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 3 of 4
A390MM 99 28 04 11
E. Additional Definitions
As used in this endorsement:
4. “Household member” means anyone living in your household who is related to you by blood, marriage or
adoption. This includes wards, step-children or foster children.
2. “Occupying” means in, upon, getting in, on, out or off.
3. “Uninsured motor vehicle” means a land motor vehicle or trailer:
a. To which no “bodily injury” liability policy or bond applies at the time of the “accident,” or
b. To which a “bodily injury” liability policy or bond applies at the time of the “accident,” but the insuring or
bonding company denies coverage or becomes insolvent.
c. Which is a hit-and-run vehicle and neither the operator nor owner can be identified.
However, “uninsured motor vehicle” does not include any vehicle:
a. Owned by a governmental unit or someone who is legally self-insured;
b. Owned or regularly used by you;
c. Designed for use mainly off public roads while not on public roads;
d. Operated on rails or crawler treads;
e. While located for use as a residence or premises.
MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 4 of 4
A391POLICY NUMBER: ISA H09052082 Endorsement Number: 127
COMMERCIAL AUTO
CA 31 13 09 96
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
UNINSURED MOTORISTS ENDORSEMENT- NEW YORK
We, the Company, agree with you, as the named (b) Uninsured Motor Vehicle. The term
insured, in return for the payment of the premium for “uninsured motor vehicle” means a motor
this coverage to provide you with Uninsured Motorists vehicle that through its ownership, mainte-
(UM) Coverage, subject to the following terms and nance or use, results in bodily injury to an
conditions: insured, and for which:
INSURING AGREEMENTS (1) No bodily injury liability insurance policy
or bond applies to such vehicle
(including a vehicle that was stolen, op-
erated without the owner's permission,
or unregistered) at the time of the acci-
dent; or
4. Damages for Bodily Injury Caused by Unin-
sured Motor Vehicles. We will pay all sums
which the insured, as defined herein, or the in-
sured's legal representative, shall be legally
entitled to recover as damages from the owner :
or operator of an uninsured motor vehicle be- (2) Neither the owner nor driver can be
cause of bodily injury sustained by the insured, identified, including a hit-and-run vehi-
and caused by accident arising out of such cle, and which causes bodily injury to an
uninsured motor vehicle's ownership, mainte- insured by physical contact with the in-
nance or use, subject to the Exclusions, Con- sured or with a motor vehicle occupied
ditions, Limits and other provisions of this UM by the insured at the time of the acci-
endorsement; provided, for the purposes of dent, provided that:
this coverage, determination as to whether the (i) The insured or someone on the
insured or the insured’s representative is le- insured's behalf shall have reported
gally entitled to recover such damages, and if the accident within 24 hours or as
so the amount thereof, shall be made by soon as reasonably possible to a po-
agreement between the insured or the in- lice, peace or judicial officer or to the
sured’s representative and us or, if they fail to Commissioner of Motor Vehicles and
agree, by arbitration. shall have filed with us a statement
under oath that the insured or the in-
sured’s legal representative has a
cause or causes of action arising out
of such accident for damages
against a person or persons whose
2. Definitions. For purposes of this UM en-
dorsement, the following terms shall have the
following meanings:
(a) Insured. The unqualified term “insured”
means: ; ; identity is unascertainable, and set-
(1) You, as the named insured and, while ting forth the facts in support thereof;
residents of the same household, your and
spouse and the relatives of either you or (ii) At our request, the insured or the
your spouse; insured's legal representative makes
(2) Any other person while occupying: available for inspection the motor
7 vehicle the insured was occupying at
(i) A_ motor vehicle owned by the the time of the accident, or
named insured or, if the named in- (3) There is a bodily injury liability insur-
sured is an individual, such spouse ance coverage or bond applicable to
and used by or with the permission such motor vehicle at the time of the
of either, or accident, but:
(ii) Any other motor vehicle while being (i) The amount of such insurance cov-
operated by the named insured or erage or bond is less than the UM
such spouse, except a person occu- limits of this policy; or .
pying a motor vehicle not registered (ii) The insurer writing such insurance
in the State of New York, while used coverage or bond denies coverage.
as a public or livery conveyance; and (4) The term “uninsured motor vehicle does
(3) Any person, with respect to damages not include a motor vehicle that is:
such person is entitled to recover be- (i) Insured under the liability coverage
cause of bodily injury to which this cov- of this policy; or
erage applies sustained by an insured
under sub-paragraphs (1) or (2) above.
CA 31 13 09 96 Insurance Services Office, Inc., 1996 Page 1 of 4
A392Page 2 of 4
(ii) Owned by you, as the named in-
sured and, while residents of the
same household, your spouse and
relatives of either you or your
spouse; or
(iii) Self-insured within the meaning of
the financial responsibility law of the
state in which the motor vehicle is
registered, or any similar state or
federal law, to the extent that the re-
quired amount of such coverage is
equal to, or greater than, the UM
limits of this policy; or
(iv) Owned by the United States of
America, Canada, a state, a political
subdivision of any such government,
or an agency of any of the foregoing;
or
(v) A land motor vehicle or trailer, while
located for use as a residence or
premises and not as a vehicle, or
while operated on rails or crawler-
treads; or
(vi) A farm type vehicle or equipment
designed for use principally off pub-
lic roads, except while actually upon
public roads.
(c) Hit-and-Run Motor Vehicle. The term “hit-
and-run motor vehicle” means a motor ve-
hicle which causes bodily injury to an in-
sured arising out of physical contact of
such motor vehicle with the insured or with
a motor vehicle which the insured is occu-
pying at the time of the accident, provided:
(1) there cannot be ascertained the identity
of either the operator or the owner of
such “hit-and-run motor vehicle”;
the insured or someone on his behalf
shall have reported the accident within
24 hours or as soon as reasonably pos-
sible to a police, peace or judicial officer
or to the Commissioner of Motor Vehi-
cles, and shall have filed with the com-
pany within 90 days thereafter a state-
ment under oath that the insured or his
legal representative has a cause or
causes of action arising out of such ac-
cident for damages against a person or
persons whose identity is unascertain-
able, and setting forth the facts in sup-
port thereof; and
at our request, the insured or his legal
representative makes available for in-
spection the motor vehicle which the in-
sured was occupying at the time of the
accident.
(d) Bodily Injury. The term “bodily injury”
means bodily harm, including sickness,
disease or death resulting therefrom.
(2)
(3)
Insurance Services Office, Inc., 1996
A393
(e) Occupying. The term “occupying” means
in, upon, entering into, or exiting from a
motor vehicle.
(f) State. The term “state” includes the District
of Columbia, a territory or possession of the
United States, and a province of Canada.
3. Territory. The coverage provided by this UM
endorsement applies only to accidents which
occur within the State of New York.
Exclusions
This UM coverage does not apply:
41. To bodily injury to an insured while operating a
motor vehicle in violation of an order of sus-
pension or revocation; or to care or loss of
services recoverable by an insured because of
such bodily injury so sustained.
2. To bodily injury to an insured, or care or loss of
services recoverable by an insured, with re-
spect to which such insured, the insured’s legal
representatives or any person entitled to pay-
ment under this UM coverage shall, without
our written consent, make any settlement with
or prosecute to judgment any action against
any person or organization who may be legally
liable therefor, but this provision shall be sub-
ject to Condition 8 of this UM endorsement.
3. To bodily injury to an insured incurred while
occupying a motor vehicle owned by that in-
sured, if such motor vehicle is not insured for at
least the minimum bodily injury liability lim-
its and UM limits required by law by the policy
under which a claim is made, or is not a newly
acquired or replacement motor vehicle cov-
ered under the terms of this policy.
4. So as to inure directly or indirectly to the
benefit of any workers’ compensation or dis-
ability benefits carrier or any person or organi-
zation qualifying as a self-insurer under any
workers’ compensation or disability benefits
law or any similar law.
5. For non-economic loss, resulting from bodily
injury to an insured and arising from an acci-
dent in New York State, unless the insured has
sustained serious injury as defined in Section
5102(d) of the New York Insurance Law.
CONDITIONS
1. Policy Provisions. None of the Insuring
Agreements, Exclusions or Conditions of the
policy shall apply to this UM coverage except
“Duties After an Accident or Loss”; “Fraud”,
and “Termination” if applicable.
CA 31 13 09 96CA 31 13 09 96
2. Premium. If during the policy period the num-
ber of motor vehicles owned by the named in-
sured or spouse and registered in New York or
the number of New York dealer’s license plates
or transporter plates issued to the named in-
sured changes, the named insured shall notify
us during the policy period of any change and
the premium shall be adjusted as of the date of
such change in accordance with the manuals
in use by us. If the earned premium thus com-
puted exceeds the advance premium paid, the
named insured shall pay the excess to us; if
less, we shall return to the named insured the
unearned portion paid by such insured.
3. Notice and Proof of Claim. Within 90 days or
as soon as practicable, the insured or other
person making claim shall give us written no-
tice of claim under this UM endorsement.
As soon as practicable after our written re-
quest, the insured or other person making any
claim shall give us written proof of claim, un-
der oath if required, including full particulars of
the nature and extent of the injuries, treatment,
and other details we need to determine the UM
amount payable hereunder.
The insured and every other person making
claim hereunder shall, as may reasonably be
required, submit to examinations under oath by
any person named by us and subscribe the
same. Proof of claim shall be made upon
forms we furnish unless we fail to furnish such
forms within 15 days after receiving notice of
claim.
4. Medical Reports. The injured person shall
submit to physical examinations by physicians
we select when and as often as we may rea-
sonably require. The insured, or in the event of
the insured’s incapacity, such insured’s legal
representative, or in the event of the insured’s
death, the insured’s legal representative or the
person or persons entitled to sue therefor, shall
upon our request authorize us, when and as
often as we may reasonably require, to obtain
relevant medical reports and copies of records.
5. Notice of Legal Action. If the insured or such
insured’s legal representative brings any law-
suit against any persons or organizations le-
gally responsible for the use of a motor vehicle
involved in the accident, a copy of the sum-
mons and complaint or other process served in
connection with the lawsuit shall be forwarded
immediately to us by the insured or the in-
* sured’s legal representative.
6. UM Limit of Liability. The UM limit payable
under this UM endorsement shall be:
Insurance Services Office, Inc., 1996
A394
(a) The limit of our liability for all damages,
including damages for care or loss of serv-
ices, because of bodily injury sustained by
one person as the result of any one acci-
dent is $25,000 per person and, subject to
this per person limit, the total limit of our li-
ability for all damages, including damages
for care or loss of services, because of
bodily injury sustained by two or more per-
sons, as the result of any one accident is
$50,000.
If the bodily injury results in death, the limit
of our liability shall be $50,000 for such
bodily injury resulting in death sustained by
one person as the result of any one acci-
dent and, subject to this limit for each per-
son, $100,000 for such bodily injury result-
ing in death sustained by two or more
persons as the result of any one accident.
(c) Any amount payable under the terms of this
UM endorsement, including amounts pay-
able for care or loss of services, because of
bodily injury sustained by one person, shall
be reduced by;
(1) all sums paid to one or more insureds
on account of such bodily injury by or on
behalf of (a) the owner or operator of
the uninsured motor vehicle and (b) any
other person or persons jointly or sev-
erally liable together with such owner or
operator for such bodily injury, and
(2) all sums paid to one or more insureds
on account of bodily injury sustained in
the same accident under any insurance
or statutory benefit similar to that pro-
vided by this UM endorsement.
7. Other Insurance. With respect to bodily injury
to an insured while occupying a motor vehicle
not owned by the named insured, the coverage
under this UM endorsement shall apply only as
excess insurance over any other similar insur-
ance available to such insured and applicable
to such motor vehicle as primary insurance,
and this UM endorsement shall then apply only
in the amount by which the limit of liability for
this coverage exceeds the applicable limit of
liability of such other insurance.
Except as provided in the foregoing paragraph,
if there is other similar insurance available to
the insured and applicable to the accident, the
damages shall be deemed not to exceed the
higher of the applicable limits of liability of this
coverage and such other insurance, and we
shall not be liable for a greater proportion of
any loss to which this coverage applies than
the limit of liability hereunder bears to the sum
of the applicable limits of liability of this UM
endorsement and such other insurance.
(b)
Page 3 of 48. Release or Advance. In accidents involving
the insured and one or more negligent parties,
if such insured settles with any such party for
the available limit of the motor vehicle bodily
injury liability coverage of such party, release
may be executed with such party after thirty
calendar days actual written notice to us, un-
less within this time period we agree to ad-
vance such settlement amounts to the insured
in return for the cooperation of the insured in
our lawsuit on behalf of the insured.
We shall have a right to the proceeds of any
such lawsuit equal to the amount advanced to
the insured and any additional amounts paid
under this UM coverage. Any excess above
those amounts shall be paid to the insured.
An insured shall not otherwise settle with any
negligent party, without our written consent,
such that our rights would be impaired.
9. Non-Duplication. This UM coverage shall not
duplicate any of the following:
(a) Benefits payable under workers’ compen-
sation or other similar laws;
(b) Non-occupational disability benefits under
article nine of the Workers Compensation
Law or other similar law;
(c) Any amounts recovered or recoverable
pursuant to article fifty-one of the New York
Insurance Law or any similar motor vehicle
insurance payable without regard to fault;
Any valid or collectible motor vehicle medi-
cal payments insurance; or
(e) Any amounts recovered as bodily injury
damages from sources other than motor
vehicle bodily injury insurance policies or
bonds.
410. Arbitration. If we do not agree with the in-
sured or the insured’s representative making
claim hereunder that the insured is legally en-
titled to recover damages from the owner or
operator of an uninsured motor vehicle be-
cause of bodily injury to the insured, or do not
agree as to the amount of payment which may
be owing under this UM endorsement then,
upon written demand of either the claimant or
us, the matter or matters upon which we do not
agree with such person shall be settled by arbi-
tration in accordance with the rules and proce-
dures of the American Arbitration Association
prescribed or approved by the Superintendent
of Insurance for this purpose. Judgment upon
the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
Such person and we each agree to consider it-
self bound and to be bound by any award
made by the arbitrators pursuant to this UM
endorsement.
(d
11, Subrogation. If we make a payment under
this UM coverage, we have the right to recover
the amount of this payment from any person
legally responsible for the bodily injury or loss
of the person to whom, or for whose benefit,
such payment was made to the extent of the
payment. The insured or any person acting on
behalf of the insured must do whatever is nec-
essary to transfer this right of recovery to us.
Except as permitted by Condition 8, such per-
son shall do nothing to prejudice this right.
12, Payment of Loss by Company. We shall pay
any amount due under this UM endorsement to
the insured or, at our option, to a person
authorized by law to receive such payment or
to a person legally entitled to recover the dam-
ages which the payment represents.
Action Against Company. No lawsuit shall lie
against us unless, as a condition precedent
thereto, the insured or the insured’s legal rep-
resentative has first fully complied with all the
terms of this UM endorsement.
414. Assignment. Assignment of interest under this
UM endorsement shall not bind us until our
consent is endorsed hereon.
45. Survivor Rights. If you or your spouse, if a
resident of the same household, dies, this UM
coverage shall cover:
(a) The survivor as named insured;
(b) The decedent's legal representative as
named insured, but only while acting within
the scope of such representative's duties as
such; and
(c) Any relative who was an insured at the time
of such death.
16. Policy Period - Termination. This UM cover-
age applies only to accidents which occur on
and after the effective date hereof and during
the policy period and shall terminate upon (1)
termination of the policy of which it forms a
part or (2) termination of New York registration
on all motor vehicles owned by the named in-
sured or Spouse.
13.
This UM endorsement must be attached to the Change Endorsement when issued after the policy is written.
Page 4 of 4 Insurance Services Office, Inc., 1996 CA 31 13 09 96
A395CA 21 21 11 02
POLICY NUMBER: ISA H09052082
Endor
Preview
Filing # 99697718 E-Filed 12/03/2019 11:46:58 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA TREVOR RICHARDS and NOVLAT RICHARDS, Plaintiffs, vs. Case No: 50-2017-CA-012343- XXXX-MB ACE AMERICAN INSURANCE COMPANY, Defendant. / ACE AMERICAN INSURANCE COMPANY’S MOTION FOR FINAL SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW PART 3 OF 3 *** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK. 12/03/2019 11:46:58 AM ***2. A_ partnership, corporation or any other form of organization, then the following are "insureds": a. Anyone “occupying” a covered "auto" or a b. Anyone else “occupying” a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, “loss” or destruction. . Anyone for damages he or she is entitled to recover because of "bodily injury” sustained by another “insured”. limited liability company, temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction. . Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured". C. Exclusions This insurance does not apply to: a Page 2 of 4 Punitive or exemplary damages. . The direct or indirect benefit of any insurer or self-insurer under any workers' compensation, disal benefits or similar law. "Bodily injury" sustained by: a. An individual Named Insured while “occupying” or when struck by any vehicle owned by that Named Insured that is not a covered "auto" for Underinsured Motorists Coverage under this Coverage Form; . Any “family member" while “occupying” or when struck by any vehicle owned by that “family member" that is not a covered “auto” for Underinsured Motorists Coverage under this Coverage Form; or . Any “family member" while "occupying" or when struck by any vehicle owned by the Named Insured that is insured for Underinsured Motorists Coverage on a primary basis under any other Coverage Form or policy. . Anyone using a vehicle without a reasonable belief that the person is entitled to do so. “Bodily injury" arising directly or indirectly out a. War, including undeclared or civil war, b. Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or c. Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. D. Limit Of Insurance 1. © Insurance Services Office, Inc., 2013 A379 Regardless of the number of covered "autos", "insureds", premiums paid, claims made or vehicles involved in the "accident", the most we will pay for all damages resulting from any one "accident" is the applicable limit of Uninsured Motorists Coverage and Underinsured Motorists Coverage shown in the endorsement Schedule. However, subject to the provisions in Paragraphs D.1.a. and b. below, in the case of an "accident" involving both an “uninsured motor vehicle" and an “underinsured motor vehicle", the most we will pay is both the limit of Uninsured Motorists Coverage and the limit of Underinsured Motorists Coverage shown in the endorsement Schedule. a. The limit entry for Uninsured Motorists Coverage in the endorsement Schedule applies only to "uninsured motor vehicles" as defined in Paragraph F.3. of the Additional Definitions section. b. The limit entry for Underinsured Motorists Coverage in the endorsement Schedule applies only to “underinsured motor vehicles" as defined in Paragraph F.4. of the Additional Definitions section. No one will be entitled to receive duplicate payments for the same elements of "loss". We will not make a duplicate payment under this coverage for any element of "loss" for which payment has been made by or for anyone who is legally responsible, including all sums paid under this Coverage Form's Covered Autos Liability Coverage. We will not pay for any element of "loss" ifa person is entitled to receive payment for the same element of "loss" under any workers’ compensation, disability benefits or similar law. . With respect to damages resulting from an “accident” with an "underinsured motor vehicle", the limit of liability shall be reduced by all sums paid by or for anyone who is legally responsible, including all sums paid under this Coverage Form's Covered Autos Liability Coverage. . Any amount paid under this coverage will reduce any amount an "insured" may be paid under this Coverage Form's Covered Autos Liability Coverage. CA 21 41 02 14E. Changes In Conditions The following condition is changed for Uninsured Motorists Coverage only: Transfer Of Rights Of Recovery Against Others To Us is replaced by the following: Transfer Of Rights Of Recovery Against Others To Us If we make any payment and the "insured" recovers from another party, the "insured" shall hold the proceeds in trust for us and pay us back the amount we have paid. The Conditions are changed for Uninsured And Underinsured Motorists Coverage as follows: 4. Other Insurance in the Auto Dealers and Business Auto Coverage Forms and Other Insurance — Primary And Excess Insurance Provisions in the Motor Carrier Coverage Form are replaced by the following: If there is other applicable insurance available under one or more policies or provisions of coverage: a. Any insurance we provide with respect to a vehicle the Named Insured does not own shall be excess over any other collectible uninsured or underinsured motorists insurance providing coverage on a primary basis. b. If the coverage under this Coverage Form is provided: (1) On a primary basis, we will pay only our share of the loss that must be paid under insurance providing coverage on a primary basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage on a primary basis. On an excess basis, we will pay only our share of the loss that must be paid under insurance providing coverage on an excess basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage on an excess basis. 2. Duties In The Event Of Accident, Claim, Suit Or Loss in the Business Auto and Motor Carrier Coverage Forms and Duties In The Event Of Accident, Claim, Offense, Suit, Loss Or Acts, Errors Or Omissions in the Auto Dealers Coverage Form are changed by adding the following: a. Promptly notify the police if a hit-and-run driver is involved; and (2) b. Promptly send us copies of the legal papers if a "suit" is brought. 3. The following condition is added: Arbitration a. If we and an "insured" disagree whether the "insured" is legally entitled to recover damages from the owner or driver of an "uninsured motor vehicle" or "underinsured motor vehicle" or do not agree as to the amount of damages that are recoverable by that “insured”, then the parties may agree to arbitration. However, disputes concerning coverage under this endorsement may not be arbitrated. If both parties agree to arbitrate, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally. b. Unless both parties agree otherwise, arbitration will take place in the county in which the "insured" lives. Local rules of law as to arbitration procedure and evidence will apply. A decision reached by two of the arbitrators will not be binding on either party. F, Additional Definitions As used in this endorsement: 4. "Family member" means a person related to an individual Named Insured by blood, marriage or adoption, who is a resident of such Named Insured's household, including a ward or foster child. . "Occupying" means in, upon, getting in, on, out or off. . "Uninsured motor vehicle" means a land motor vehicle or “trailer”: a. For which no liability bond or policy at the time of an "accident" provides at least the amounts required by the applicable law where a covered “auto” is principally garaged; or b. For which an insuring or bonding company denies coverage or is or becomes insolvent; or c. Which is a hit-and-run vehicle and neither the driver nor owner can be identified or which causes an “accident” resulting in "bodily injury" without hitting an “insured”, a covered "auto" or a vehicle an "insured" is "occupying". CA 21 41 02 14 © Insurance Services Office, Inc., 2013 Page 3 of 4 A380However, “uninsured motor vehicle" does not include any vehicle: a. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer who is or becomes insolvent and cannot provide the amounts required by that motor vehicle law; b, Owned by a governmental unit or agency; or c. Designed for use mainly off public roads while not on public roads. "Underinsured motor vehicle" means a land motor vehicle or “trailer” to which a liability bond or policy applies at the time of an "accident", but the amount paid for "bodily injury" to an “insured” under that bond or policy is not enough to pay the full amount the “insured” is legally entitled to recover as damages. = However, "underinsured motor vehicle" does not include any vehicle: a. Owned or operated by a self-insurer under any applicable motor vehicle law; b. Owned by a governmental unit or agency; c. Designed for use mainly off public roads while not on public roads; Which is an “uninsured motor vehicle"; or e. For which an insuring or bonding company denies coverage or is or becomes insolvent. Page 4 of 4 © Insurance Services Office, Inc., 2013 CA 21 41 02 14 A381POLICY NUMBER: ISA H09052082 Endorsement Number: 122 COMMERCIAL AUTO CA 01 46 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TENNESSEE CHANGES For a covered "auto" licensed in, or “auto dealer operations" conducted in, Tennessee, this endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. A. Changes In Covered Autos Liability Coverage Paragraph 2.b.(4) of the Who Is An Insured provision of the Auto Dealers Coverage Form does not apply. B. Changes In Conditions 4. The following replaces the lead-in paragraph to the (3) At the time of an "accident" a person described in Paragraph a.(2) is operating an "auto" owned by the business described in Paragraph a.(1), then that person's liability insurance is primary and the policy issued to a business described in Paragraph a.(1) is CA 01 46 10 13 Duties In The Event Of Accident, Claim, Suit Or Loss Condition in the Business Auto and Motor Carrier Coverage Forms and the Duties In The Event Of Accident, Claim, Offense, Suit, Loss Or Acts, Errors Or Omissions Condition in the Auto Dealers Coverage Form: We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us: . The Other Insurance Condition in the Auto Dealers and Business Auto Coverage Forms and the Other Insurance — Primary and Excess Insurance Provisions Condition in the Motor Carrier Coverage Form are changed by adding the following: a. When two policies providing liability insurance apply to an "auto" and: {1) One provides coverage to a named “insured” engaged in the business of selling, repairing, servicing, delivering, testing, road testing, parking or storing "autos"; (2) The other provides coverage to a person not engaged in that business; and A382 © Insurance Services Office, Inc., 2012 excess over any insurance available to that person. b. When two policies providing liability insurance apply to an "auto" and: (1) One provides coverage to a named "insured" engaged in the business of repairing, servicing, parking or storing "autos", The other provides coverage to a person not engaged in that business; and (3) At the time of an “accident” an "insured" under the policy described in Paragraph b.(1) is operating an “auto” owned by a person described in Paragraph b.(2), then the liability insurance policy issued to the business described in Paragraph b.(1) is primary and the policy issued to a person described in Paragraph b.(2) is excess over any insurance available to the business. (2) Page 1 of 1For a covered "auto" li following: With respect to coverage provided by this endorst the endorsement. CA 01 96 10 13 POLICY NUMBER: ISA H09052082 Endorsement Number: 123 COMMERCIAL AUTO CA 01 96 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS CHANGES BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM A. Changes In Physical Damage Coverage 4. The following exclusion is added to Paragraph B. Exclusions in the Physical Damage Coverage section: We will not pay for "loss" due to or as a consequence of a seizure of a covered "auto" by federal or state law enforcement officers as evidence in a case against you under the Texas Controlled Substances Act or the federal Controlled Substances Act if you are convicted in such case. 2. Paragraphs C.2. and C.3. of the Limit Of Insurance provision under Physical Damage Coverage do not apply. 3. Paragraph D. Deductible in the Physical Damage Coverage section is amended by the addition of the following: At the mutual agreement of you and us, we will not apply the deductible to "loss" to glass, if the glass is repaired rather than replaced. B. Changes In Conditions The following condition is added: Claim-handling Procedures 4. Within 15 days after we receive written notice of a claim, we will: a. Acknowledge receipt of the claim. If we do not acknowledge receipt of the claim in writing, we will keep a record of the date, method and content of the acknowledgment; b. Begin any investigation of the claim; and A383 icensed or principally garaged in Texas, this endorsement modifies insurance provided under the ement, the provisions of the Coverage Form apply unless modified by c. Specify the information you must provide in accordance with Paragraph b. of the Duties Condition. We may request more information at a later date, if during the investigation of the claim such additional information is necessary. . After we receive the information we request, we will notify you in writing as to whether: a. The claim will be paid; b. The claim has been denied, and inform you of the reasons for denial; c. More information is necessary; or d. We need additional time to reach a decision. If we need additional time, we will inform you of the reasons for such need. We will provide notification, as described in 2.a. through 2.d. above, within: a. 15 “business days"; or b. 30 days if we have reason to believe the "loss" resulted from arson. If we have notified you that we need additional time to reach a decision, we must then either approve or deny the claim within 45 days of such notice. . If a claim results from a weather-related catastrophe or a major natural disaster as defined by the Texas Department of Insurance, the claim- handling deadlines described above are extended for an additional 15 days. . If we notify you that we will pay your claim, or part of your claim, we will pay within five "business days" after we notify you. © Insurance Services Office, Inc., 2013 Page 1 of 2Page 2 of 2 However, if payment of the claim or part of the claim is conditioned on your compliance with any of the terms under this Policy, we will make payment within five "business days" after the date you have complied with such terms. 5. We will notify the first Named Insured in writing a. An initial offer to settle a claim made or "sui brought against any “insured” under Covered Autos Liability Coverage of this Policy. The notice will be given no later than the 10th day after the date on which the offer is made. b. Any settlement of a claim made or "suit" brought against the "insured" under Covered Autos Liability Coverage of this Policy. The notice will be given not later than the 30th day after the date of settlement. As used in this condition, "business day" means a day other than Saturday, Sunday or a holiday recognized by the state of Texas. . Changes In Uninsured/Underinsured Motorists Coverage All references to "Uninsured Motorists Coverage" in the title or text of any Coverage Form or endorsement thereto are changed to read "Uninsured/Underinsured Motorists Coverage". A384 © Insurance Services Office, Inc., 2013 D. Changes In Trailer Interchange Coverage The following exclusion is added to Paragraph B. Exclusions of Section Ill -— Trailer Interchange Coverage in the Motor Carrier Coverage Form and to Paragraph B.2. Exclusions of the Motor Carrier Endorsement if attached: Texas Controlled Substance Act We will not pay for "loss" due to or as a consequence of a seizure of a covered “auto” by federal or state law enforcement officers as evidence in a case against you under the Texas Controlled Substances Act or the federal Controlled Substances Act if you are convicted in such case. E. Changes In Garagekeepers Coverage if the Garagekeepers Coverage Endorsement or the Garagekeepers Coverage — Customers' Sound- receiving Equipment endorsement is attached, the following exclusion is added: Texas Controlled Substance Act We will not pay for "loss" due to or as a consequence of a seizure of a covered "auto" by federal or state law enforcement officers as evidence in a case against you under the Texas Controlled Substances Act or the federal Controlled Substances Act if you are convicted in such case. CA 01 96 10 13POLICY NUMBER: ISA H09052082 Endorsement Number: 124 COMMERCIAL AUTO CA 02 43 11 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS CHANGES — CANCELLATION AND NONRENEWAL This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. A. Paragraphs 2. and 5. of the Cancellation Common Policy Condition contained in Endorsement IL 00 17 are replaced by the following: 2. We may cancel this policy: a. By mailing or delivering to the first Named Insured written notice of cancellation, stating the reason for cancellation, at least 10 days before the effective date of cancellation. b. For the following reasons, if this policy does not provide coverage to a governmental unit, as defined under 28 TEX. ADMIN. CODE, Section 5.7001: (1) If this policy has been in effect for 60 days or less, we may cancel for any reason except, that under the provisions of the Texas Insurance Code, we may not cancel this policy solely because the policyholder is an elected official. (2) If this policy has been in effect for more than 60 days, or if it is a renewal or continuation of a policy issued by us, we may cancel only for one or more of the following reasons: (a) Fraud in obtaining coverage; (b) Failure to pay premiums when due; (c) An increase in hazard within the control of the insured which would produce an increase in rate; (d) Loss of reinsurance covering all or part of the risk covered by the policy; or (e) If we have been placed in supervision, conservatorship or receivership and the cancellation is approved or directed by the supervisor, conservator or receiver. c. For the following reasons, if this policy provides coverage to a governmental unit, as defined under 28 TEX. ADMIN. CODE, Section 5.7001: (1) If this policy has been in effect for less than 90 days, we may cancel this policy for any. reason. (2) If this policy has been in effect for 90 days or more, or if it is a renewal or continuation of a policy issued by us, we may cancel this policy, only for the following reasons: (a) If the first Named Insured does not pay the premium or any portion of the premium when due; (b) If the Texas Department of Insurance determines that continuation of this policy would result in violation of the Texas Insurance Code or any other law governing the business of insurance in Texas; (c) If the Named Insured submits a fraudulent claim; or (d) If there is an increase in the hazard within the control of the Named Insured which would produce an increase in rate. CA 02 43 11 13 © Insurance Services Office, Inc., 2013 Page 1 of 2 A385Page 2 of 2 5. If this policy is canceled, we will send the first Named Insured any premium refund due. The refund will be pro rata, subject to the policy minimum premium. The cancellation will be effective even if we have not made or offered a refund. B. The following condition is added: Nonrenewal 41. We may elect to renew this policy except that under the provisions of the Texas Insurance Code, we may not refuse to renew this policy solely because the policyholder is an elected official. A386 © Insurance Services Office, Inc., 2013 2. If we elect not to renew this policy, we may do so by mailing or delivering to the first Named Insured, at the last mailing address known to us, written notice of nonrenewal, stating the reason for nonrenewal, at least 60 days before the expiration date. If notice is mailed or delivered less than 60 days before the expiration date, this policy will remain in effect until the 61st day after the date on which the notice is mailed or delivered. Earned premium for any period of coverage that extends beyond the expiration date will be computed pro rata based on the previous year's premium. CA 02 43 11 13POLICY NUMBER: ISA H09052082 Endorsement Number: 125 COMMERCIAL AUTO CA 99 95 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS SUPPLEMENTARY DEATH BENEFIT This endorsement modifies insurance provided under the following: AUTO MEDICAL PAYMENTS COVERAGE PERSONAL INJURY PROTECTION COVERAGE With respect to coverage provided by this endorsement, the the endorsement. This endorsement changes the provisions of the Coverage Form apply unless modified by policy effective on the inception date of the policy unless another date is indicated below. Named Insured: Chubb Group Holdings Inc. Endorsement Effective Date: A. Coverage We will pay under the provisions of personal injury protection insurance and/or auto medical payments insurance as afforded by this policy except as limited by this endorsement. We will pay a supplementary death benefit equal to the limit shown for the coverages but not exceeding ten thousand dollars ($10,000) per person because of death: 4. Caused by an "auto" "accident"; and 2. Sustained by an "insured" while wearing a "seat belt" or protected by an "airbag". We will pay the benefit if death from an “auto” "accident" occurs within three years of the date of such “accident”. B. Proof Of Claim For Death Benefit The "beneficiary" must furnish us with proof of death of the “insured”, accompanied by a police report or other suitable proof, that the “insured” at the time of the "auto" "accident" was wearing a “seat belt" or protected by an “air bag". C. Other Insurance Any amounts payable under the supplementary death benefit shall not be reduced by any other amounts paid or payable under this policy. CA 99 95 10 13 A387 © Insurance Services Office, Inc., 2012 D. Additional Definitions The following are added to the Definitions section and have special meaning for Supplementary Death Benefit: 4. "Insured" as used in this endorsement means the same persons who are covered under auto medical payments insurance and/or personal injury protection insurance. 2. "Seat belt" means manual or automatic safety belts or seat and shoulder restraints or a child restraint device. 3. "Airbag" is a functioning airbag designed to protect the occupant of a seat in an "auto". 4. "Beneficiary". means (in order of priority of payment): a. The surviving spouse if a resident in the same household as the deceased at the time of the "accident"; or b. If the deceased is an unmarried minor, either of the surviving parents who had legal custody at the time of the "accident"; or c. The estate of the deceased. Page 1 of 1POLICY NUMBER: ISA H09052082 Endorsement Number: 126 MM 99 28 04 11 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. UNINSURED MOTORISTS COVERAGE - MASSACHUSETTS This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. A. Coverage We will pay all sums an insured is legally entitled to recover as damages from the owner or operator of an “uninsured motor vehicle.” The damages must result from “bodily injury” sustained by the insured caused by an “accident.” The owner's or operator's liability for these damages must result from the ownership, maintenance or use of an “uninsured motor vehicle.” The most we will pay for damages to or for anyone injured in the following situations is $35,000 for each person and $80,000 for each “accident” or the limits you purchased, whichever is less: 4. Anyone injured while using a covered “auto” without the consent of the owner. 2. Anyone injured while a covered “auto” is being operated in a prearranged or organized racing, speed or demolition contest or in practice or preparation for any such contest. This coverage does not apply to the direct or indirect benefit of any insurer or self-insurer under any workers’ compensation or similar law. 1. Whois an Insured: a. You, while “occupying” a covered “auto,” while “occupying” an “auto” you do not own, or if injured as a “pedestrian.” b. If the form of your business under Item One of the Declarations is shown as an individual, any “household member,” while “occupying” a covered “auto,” while “occupying” an “auto” not owned by you, or if injured as a “pedestrian.” If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any “household member” who has a Massachusetts MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 1 of 4 A388MM 99 28 04 11 auto policy of his or her own or who is covered by any Massachusetts auto policy of another “household member” providing uninsured auto insurance with higher limits. c. Anyone else while “occupying” a covered “auto.” We will not pay damages to or for anyone else who has a Massachusetts auto policy of his or her own, or who is covered by any Massachusetts auto policy of another “household member” providing uninsured auto insurance. d. Anyone else for damages he or she is entitled to recover because of injury to a person under this coverage. If you are injured while “occupying” a covered “auto” and you have two or more “autos” insured with us with different limits, we only pay up to the limits shown on the Declarations for the “auto” you are “occupying” when injured. If your are injured as a “pedestrian” or while “occupying” an “auto” you do not own and you have two or more Massachusetts auto policies which provide coverage at different limits, the policy with the higher limits will pay. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for you if struck by, or while “occupying” an “auto” you own and which does not have Massachusetts compulsory auto insurance. Likewise, we will not pay damages to or for any “household member” if struck by, or while “occupying” an “auto” owned by that “household member” which does not have Massachusetts compulsory auto insurance. B. Limits Of Insurance 1. The most we will pay for injuries to one or more persons as a result of bodily injury to any one person in any one “accident” is shown on the Declarations as the “each person” limit. Subject to this limit, the most we will pay for injuries to two or more people as the result of bodily injury to two or more people in any one “accident” is shown ‘on the Declarations as the “each accident” limit. This is the most we will pay as the result of a single “accident.” 2. The limits of two or more “autos” or policies shall not be added together, combined, or stacked, to determine the limits of coverage available to anyone covered under this insurance, regardless of the number of “autos” involved, persons covered, claims made, or premiums shown on the Declarations. 3. We will not make payments under this coverage which duplicate payments provided under uninsured auto insurance of any other auto policy. MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 2 of 4 A389MM 99 28 04 11 4. We will reduce the damages an injured person is entitled to recover by: a. The amount recovered from any legally responsible person provided the injured person is fully compensated for his or her damage for bodily injury. b. The amount paid under a workers’ compensation law or similar law. We will pay the balance of the damages up to the limits shown for this coverage on the Declarations. C. Changes In Conditions The conditions are changed for Uninsured Motorists Coverage as follows: 1. Other Insurance is deleted. 2. Two or More Coverage Forms or Policies Issued By Us is deleted. D. Additional Conditions The following conditions are added for Uninsured Motorists Coverage: 1. Arbitration If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or operator of an “uninsured motor vehicle” or do not agree as to the amount of damages, either party may make a written demand for arbitration. However, in no event may a demand for arbitration constitute first notice of claim. We must be given sufficient notice of claim to conduct a reasonable investigation and attempt settlement before arbitration can be used. 2. Settlement or Judgment If an insured person settles a claim as a result of an “accident” covered under this coverage, we will pay that person only if the claim was settled with our consent. We will not be bound under this coverage by any judgment resulting from a lawsuit brought without our written consent. We will not, however, unreasonably withhold our consent. MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 3 of 4 A390MM 99 28 04 11 E. Additional Definitions As used in this endorsement: 4. “Household member” means anyone living in your household who is related to you by blood, marriage or adoption. This includes wards, step-children or foster children. 2. “Occupying” means in, upon, getting in, on, out or off. 3. “Uninsured motor vehicle” means a land motor vehicle or trailer: a. To which no “bodily injury” liability policy or bond applies at the time of the “accident,” or b. To which a “bodily injury” liability policy or bond applies at the time of the “accident,” but the insuring or bonding company denies coverage or becomes insolvent. c. Which is a hit-and-run vehicle and neither the operator nor owner can be identified. However, “uninsured motor vehicle” does not include any vehicle: a. Owned by a governmental unit or someone who is legally self-insured; b. Owned or regularly used by you; c. Designed for use mainly off public roads while not on public roads; d. Operated on rails or crawler treads; e. While located for use as a residence or premises. MM 99 28 04 11 Copyright, Automobile Insurers Bureau, 1998 Page 4 of 4 A391POLICY NUMBER: ISA H09052082 Endorsement Number: 127 COMMERCIAL AUTO CA 31 13 09 96 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. UNINSURED MOTORISTS ENDORSEMENT- NEW YORK We, the Company, agree with you, as the named (b) Uninsured Motor Vehicle. The term insured, in return for the payment of the premium for “uninsured motor vehicle” means a motor this coverage to provide you with Uninsured Motorists vehicle that through its ownership, mainte- (UM) Coverage, subject to the following terms and nance or use, results in bodily injury to an conditions: insured, and for which: INSURING AGREEMENTS (1) No bodily injury liability insurance policy or bond applies to such vehicle (including a vehicle that was stolen, op- erated without the owner's permission, or unregistered) at the time of the acci- dent; or 4. Damages for Bodily Injury Caused by Unin- sured Motor Vehicles. We will pay all sums which the insured, as defined herein, or the in- sured's legal representative, shall be legally entitled to recover as damages from the owner : or operator of an uninsured motor vehicle be- (2) Neither the owner nor driver can be cause of bodily injury sustained by the insured, identified, including a hit-and-run vehi- and caused by accident arising out of such cle, and which causes bodily injury to an uninsured motor vehicle's ownership, mainte- insured by physical contact with the in- nance or use, subject to the Exclusions, Con- sured or with a motor vehicle occupied ditions, Limits and other provisions of this UM by the insured at the time of the acci- endorsement; provided, for the purposes of dent, provided that: this coverage, determination as to whether the (i) The insured or someone on the insured or the insured’s representative is le- insured's behalf shall have reported gally entitled to recover such damages, and if the accident within 24 hours or as so the amount thereof, shall be made by soon as reasonably possible to a po- agreement between the insured or the in- lice, peace or judicial officer or to the sured’s representative and us or, if they fail to Commissioner of Motor Vehicles and agree, by arbitration. shall have filed with us a statement under oath that the insured or the in- sured’s legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose 2. Definitions. For purposes of this UM en- dorsement, the following terms shall have the following meanings: (a) Insured. The unqualified term “insured” means: ; ; identity is unascertainable, and set- (1) You, as the named insured and, while ting forth the facts in support thereof; residents of the same household, your and spouse and the relatives of either you or (ii) At our request, the insured or the your spouse; insured's legal representative makes (2) Any other person while occupying: available for inspection the motor 7 vehicle the insured was occupying at (i) A_ motor vehicle owned by the the time of the accident, or named insured or, if the named in- (3) There is a bodily injury liability insur- sured is an individual, such spouse ance coverage or bond applicable to and used by or with the permission such motor vehicle at the time of the of either, or accident, but: (ii) Any other motor vehicle while being (i) The amount of such insurance cov- operated by the named insured or erage or bond is less than the UM such spouse, except a person occu- limits of this policy; or . pying a motor vehicle not registered (ii) The insurer writing such insurance in the State of New York, while used coverage or bond denies coverage. as a public or livery conveyance; and (4) The term “uninsured motor vehicle does (3) Any person, with respect to damages not include a motor vehicle that is: such person is entitled to recover be- (i) Insured under the liability coverage cause of bodily injury to which this cov- of this policy; or erage applies sustained by an insured under sub-paragraphs (1) or (2) above. CA 31 13 09 96 Insurance Services Office, Inc., 1996 Page 1 of 4 A392Page 2 of 4 (ii) Owned by you, as the named in- sured and, while residents of the same household, your spouse and relatives of either you or your spouse; or (iii) Self-insured within the meaning of the financial responsibility law of the state in which the motor vehicle is registered, or any similar state or federal law, to the extent that the re- quired amount of such coverage is equal to, or greater than, the UM limits of this policy; or (iv) Owned by the United States of America, Canada, a state, a political subdivision of any such government, or an agency of any of the foregoing; or (v) A land motor vehicle or trailer, while located for use as a residence or premises and not as a vehicle, or while operated on rails or crawler- treads; or (vi) A farm type vehicle or equipment designed for use principally off pub- lic roads, except while actually upon public roads. (c) Hit-and-Run Motor Vehicle. The term “hit- and-run motor vehicle” means a motor ve- hicle which causes bodily injury to an in- sured arising out of physical contact of such motor vehicle with the insured or with a motor vehicle which the insured is occu- pying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or the owner of such “hit-and-run motor vehicle”; the insured or someone on his behalf shall have reported the accident within 24 hours or as soon as reasonably pos- sible to a police, peace or judicial officer or to the Commissioner of Motor Vehi- cles, and shall have filed with the com- pany within 90 days thereafter a state- ment under oath that the insured or his legal representative has a cause or causes of action arising out of such ac- cident for damages against a person or persons whose identity is unascertain- able, and setting forth the facts in sup- port thereof; and at our request, the insured or his legal representative makes available for in- spection the motor vehicle which the in- sured was occupying at the time of the accident. (d) Bodily Injury. The term “bodily injury” means bodily harm, including sickness, disease or death resulting therefrom. (2) (3) Insurance Services Office, Inc., 1996 A393 (e) Occupying. The term “occupying” means in, upon, entering into, or exiting from a motor vehicle. (f) State. The term “state” includes the District of Columbia, a territory or possession of the United States, and a province of Canada. 3. Territory. The coverage provided by this UM endorsement applies only to accidents which occur within the State of New York. Exclusions This UM coverage does not apply: 41. To bodily injury to an insured while operating a motor vehicle in violation of an order of sus- pension or revocation; or to care or loss of services recoverable by an insured because of such bodily injury so sustained. 2. To bodily injury to an insured, or care or loss of services recoverable by an insured, with re- spect to which such insured, the insured’s legal representatives or any person entitled to pay- ment under this UM coverage shall, without our written consent, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor, but this provision shall be sub- ject to Condition 8 of this UM endorsement. 3. To bodily injury to an insured incurred while occupying a motor vehicle owned by that in- sured, if such motor vehicle is not insured for at least the minimum bodily injury liability lim- its and UM limits required by law by the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle cov- ered under the terms of this policy. 4. So as to inure directly or indirectly to the benefit of any workers’ compensation or dis- ability benefits carrier or any person or organi- zation qualifying as a self-insurer under any workers’ compensation or disability benefits law or any similar law. 5. For non-economic loss, resulting from bodily injury to an insured and arising from an acci- dent in New York State, unless the insured has sustained serious injury as defined in Section 5102(d) of the New York Insurance Law. CONDITIONS 1. Policy Provisions. None of the Insuring Agreements, Exclusions or Conditions of the policy shall apply to this UM coverage except “Duties After an Accident or Loss”; “Fraud”, and “Termination” if applicable. CA 31 13 09 96CA 31 13 09 96 2. Premium. If during the policy period the num- ber of motor vehicles owned by the named in- sured or spouse and registered in New York or the number of New York dealer’s license plates or transporter plates issued to the named in- sured changes, the named insured shall notify us during the policy period of any change and the premium shall be adjusted as of the date of such change in accordance with the manuals in use by us. If the earned premium thus com- puted exceeds the advance premium paid, the named insured shall pay the excess to us; if less, we shall return to the named insured the unearned portion paid by such insured. 3. Notice and Proof of Claim. Within 90 days or as soon as practicable, the insured or other person making claim shall give us written no- tice of claim under this UM endorsement. As soon as practicable after our written re- quest, the insured or other person making any claim shall give us written proof of claim, un- der oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details we need to determine the UM amount payable hereunder. The insured and every other person making claim hereunder shall, as may reasonably be required, submit to examinations under oath by any person named by us and subscribe the same. Proof of claim shall be made upon forms we furnish unless we fail to furnish such forms within 15 days after receiving notice of claim. 4. Medical Reports. The injured person shall submit to physical examinations by physicians we select when and as often as we may rea- sonably require. The insured, or in the event of the insured’s incapacity, such insured’s legal representative, or in the event of the insured’s death, the insured’s legal representative or the person or persons entitled to sue therefor, shall upon our request authorize us, when and as often as we may reasonably require, to obtain relevant medical reports and copies of records. 5. Notice of Legal Action. If the insured or such insured’s legal representative brings any law- suit against any persons or organizations le- gally responsible for the use of a motor vehicle involved in the accident, a copy of the sum- mons and complaint or other process served in connection with the lawsuit shall be forwarded immediately to us by the insured or the in- * sured’s legal representative. 6. UM Limit of Liability. The UM limit payable under this UM endorsement shall be: Insurance Services Office, Inc., 1996 A394 (a) The limit of our liability for all damages, including damages for care or loss of serv- ices, because of bodily injury sustained by one person as the result of any one acci- dent is $25,000 per person and, subject to this per person limit, the total limit of our li- ability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more per- sons, as the result of any one accident is $50,000. If the bodily injury results in death, the limit of our liability shall be $50,000 for such bodily injury resulting in death sustained by one person as the result of any one acci- dent and, subject to this limit for each per- son, $100,000 for such bodily injury result- ing in death sustained by two or more persons as the result of any one accident. (c) Any amount payable under the terms of this UM endorsement, including amounts pay- able for care or loss of services, because of bodily injury sustained by one person, shall be reduced by; (1) all sums paid to one or more insureds on account of such bodily injury by or on behalf of (a) the owner or operator of the uninsured motor vehicle and (b) any other person or persons jointly or sev- erally liable together with such owner or operator for such bodily injury, and (2) all sums paid to one or more insureds on account of bodily injury sustained in the same accident under any insurance or statutory benefit similar to that pro- vided by this UM endorsement. 7. Other Insurance. With respect to bodily injury to an insured while occupying a motor vehicle not owned by the named insured, the coverage under this UM endorsement shall apply only as excess insurance over any other similar insur- ance available to such insured and applicable to such motor vehicle as primary insurance, and this UM endorsement shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance. Except as provided in the foregoing paragraph, if there is other similar insurance available to the insured and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this coverage and such other insurance, and we shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this UM endorsement and such other insurance. (b) Page 3 of 48. Release or Advance. In accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice to us, un- less within this time period we agree to ad- vance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured. We shall have a right to the proceeds of any such lawsuit equal to the amount advanced to the insured and any additional amounts paid under this UM coverage. Any excess above those amounts shall be paid to the insured. An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired. 9. Non-Duplication. This UM coverage shall not duplicate any of the following: (a) Benefits payable under workers’ compen- sation or other similar laws; (b) Non-occupational disability benefits under article nine of the Workers Compensation Law or other similar law; (c) Any amounts recovered or recoverable pursuant to article fifty-one of the New York Insurance Law or any similar motor vehicle insurance payable without regard to fault; Any valid or collectible motor vehicle medi- cal payments insurance; or (e) Any amounts recovered as bodily injury damages from sources other than motor vehicle bodily injury insurance policies or bonds. 410. Arbitration. If we do not agree with the in- sured or the insured’s representative making claim hereunder that the insured is legally en- titled to recover damages from the owner or operator of an uninsured motor vehicle be- cause of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this UM endorsement then, upon written demand of either the claimant or us, the matter or matters upon which we do not agree with such person shall be settled by arbi- tration in accordance with the rules and proce- dures of the American Arbitration Association prescribed or approved by the Superintendent of Insurance for this purpose. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and we each agree to consider it- self bound and to be bound by any award made by the arbitrators pursuant to this UM endorsement. (d 11, Subrogation. If we make a payment under this UM coverage, we have the right to recover the amount of this payment from any person legally responsible for the bodily injury or loss of the person to whom, or for whose benefit, such payment was made to the extent of the payment. The insured or any person acting on behalf of the insured must do whatever is nec- essary to transfer this right of recovery to us. Except as permitted by Condition 8, such per- son shall do nothing to prejudice this right. 12, Payment of Loss by Company. We shall pay any amount due under this UM endorsement to the insured or, at our option, to a person authorized by law to receive such payment or to a person legally entitled to recover the dam- ages which the payment represents. Action Against Company. No lawsuit shall lie against us unless, as a condition precedent thereto, the insured or the insured’s legal rep- resentative has first fully complied with all the terms of this UM endorsement. 414. Assignment. Assignment of interest under this UM endorsement shall not bind us until our consent is endorsed hereon. 45. Survivor Rights. If you or your spouse, if a resident of the same household, dies, this UM coverage shall cover: (a) The survivor as named insured; (b) The decedent's legal representative as named insured, but only while acting within the scope of such representative's duties as such; and (c) Any relative who was an insured at the time of such death. 16. Policy Period - Termination. This UM cover- age applies only to accidents which occur on and after the effective date hereof and during the policy period and shall terminate upon (1) termination of the policy of which it forms a part or (2) termination of New York registration on all motor vehicles owned by the named in- sured or Spouse. 13. This UM endorsement must be attached to the Change Endorsement when issued after the policy is written. Page 4 of 4 Insurance Services Office, Inc., 1996 CA 31 13 09 96 A395CA 21 21 11 02 POLICY NUMBER: ISA H09052082 Endor