Question from an IIABNY member: Have a question about an 18 year old daughter of a divorced couple. She lives with her mother 70 percent of the time and her father 30 percent of the time. If she were involved in an accident as a passenger in another vehicle or as a pedestrian, would the coverage come from the mother’s policy? Would the coverage come from the policy where she was staying at the time of the loss? Would both policies respond proportionally? Any thoughts?
Answer: ISO endorsement PP 05 87 01 14, Personal Injury Protection Coverage – New York, states in relevant part:
Mandatory Personal Injury Protection
The company will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle or a motorcycle during the policy period and within the United States of America, its territories or possessions, or Canada.
Eligible Injured Person
Subject to the exclusions and conditions set forth below, an eligible injured person is:
(a) The named insured and any relative who sustains personal injury arising out of the use or operation of any motor vehicle;
(b) The named insured and any relative who sustains personal injury arising out of the use or operation of any motorcycle, while not occupying a motorcycle; …
When used in reference to this coverage: …
(g) "Relative" means a spouse, child, or other person related to the named insured by blood, marriage, or adoption (including a ward or foster child), who regularly resides in the insured's household, including any such person who regularly resides in the household, but is temporarily living elsewhere; …
Other Coverage. Where more than one source of first-party benefits ... is available and applicable to an eligible injured person in any one accident, this Company is liable to an eligible injured person only for an amount equal to the maximum amount that the eligible injured person is entitled to recover under this coverage, divided by the number of available and applicable sources of required first-party benefits. An eligible injured person shall not recover duplicate benefits for the same elements of loss under this coverage or any other mandatory first-party motor vehicle or no-fault motor vehicle insurance coverage issued in compliance with the laws of another state.
If the eligible injured person is entitled to benefits under any such mandatory first-party motor vehicle or no-fault motor vehicle insurance for the same elements of loss under this coverage, this Company shall be liable only for an amount equal to the proportion that the total amount available under this coverage bears to the sum of the amount available under this coverage and the amount available under such other mandatory insurance for the common elements of loss. However, where another state's mandatory first-party or no-fault motor vehicle insurance law provides unlimited coverage available to an eligible injured person for an element of loss under this coverage, the obligation of this Company is to share equally for that element of loss with such other mandatory insurance until the $50,000, or $75,000 if Optional Basic Economic Loss (OBEL) coverage is purchased, limit of this coverage is exhausted by the payment of that element of loss and any other elements of loss.
Based on this, we know that:
1) PIP coverage applies to “eligible injured persons”
2) An eligible injured person can be a “relative”
3) A child who regularly resides in the insured’s household and who temporarily lives elsewhere is a “relative”.
Therefore, it appears that the daughter you described could be an “eligible injured person” under both parents’ PIP coverage. If she were to be injured in a car accident, the Other Coverage condition would apply.
Assuming that both parents live in New York, the first paragraph of the condition would apply. That paragraph says that the insurer is liable “only for an amount equal to the maximum amount that the eligible injured person is entitled to recover under this coverage, divided by the number of available and applicable sources of required first-party benefits.” If there are two applicable policies (Mom’s and Dad’s), then the two insurers will share the loss 50-50. If the most she can collect under PIP is $30,000, and there are two sources of required first-party benefits, then each source pays $15,000 ($30,000 divided by two.)