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1 Education ProgramS r Commercial Auto & The Dreaded Rental Car Issue! sponsored by

2 COMMERCIAL AUTO & THE DREADED RENTAL CAR ISSUE Robin Federici, CPCU, AAI, ARM, AINS,AIS, CPIW PO BOX 781 NORTH KINGSTOWN, RI Phone: Fax: Robin s Cell Fred s Cell Web site: 1

3 A PRIMER ON THE COLLISION DAMAGE WAIVER (CDW) Your commercial insured is renting a vehicle. Where is there coverage, or lack of coverage, under their current auto policy? Although it is ultimately the insured s decision on whether to purchase the CDW, from an E&O standpoint, you should be prepared to answer their questions regarding their current auto coverage and point out where there is a gap between their auto coverage and the promise they are making based on the rental agreement they are signing. RENTAL CAR COMPANIES BUSINESS RENTAL PLANS Auto rental agreements are contracts between the rental company and the party signing the agreement Rental agreements require that the person renting sign the rental agreement Business programs from most rental car companies do not amend who is signing the agreement. The business programs allow renters to pay a special reduced rate only Individuals, regardless of whether they are using the vehicle for business or personal use, have limited coverage under their own personal auto insurance policy Use of a corporate credit card does not effect the coverage granted or limited by either the personal auto policy or the business auto policy Coverage under personal auto policies will be discussed. The discussion includes both the MA auto and the ISO PAP for states other than MA 2

4 WHAT ARE OUR INSUREDS SIGNING? Have you ever had the opportunity to review the rental agreements signed by your insureds? So often our insureds make the erroneous decision not to purchase the rental cars collision damage waiver (CDW) or loss damage waiver (LDW) because they believe that their insurance carrier will pay any amount owed for damage to the vehicle they are renting. In fact, the insurance policy and rental agreement are two separate legal contracts. The insurance carrier is only responsible to pay for damage based on their contractual promise. When signing a rental car agreement, the renter becomes personally responsible to pay the rental company based on the rental contract terms. The insurance carrier is not required to pay all damages the renter is responsible to pay, only those damages that fall under the insurance policies covered losses. Below are excerpts from the rental agreement of one of the major car rental companies. It is representative of the clauses found in most rental agreements. AUTO RENTAL AGREEMENT TERMS Sample Language Loss or Damage to thevehicle: The renter and any additional drivers are absolutely liable for any loss or damage to the rental vehicle, even if someone else caused it or the cause is unknown, whether due to theft, fire, hail, flood, collision, vandalism, or any other cause, subject to limitations imposed by the law where the vehicle is rented. This liability will not exceed the full value of the vehicle, plus: Actual towing and storage charges; Loss of use; Diminution in value, regardless of whether the vehicle is repaired; All rental charges through the date you report the incident if not returnable or the return date, whichever is later; Any out-of-pocket expenses incurred by us as a result of the loss; A reasonable administrative fee; and Pro-rata license plate fees, all as allowed by law. 3

5 THE BIG GAPS IN THE BAC POLICY The ISO Business Auto Coverage Form presents a number of problems in regard to rented autos. SYMBOLS: The policy only extends coverage based on the Symbols chosen: Liability: Unless Symbol 1 or Symbol 8 is used for Liability coverage there is no coverage for a vehicle not owned by the insured. Physical Damage: As noted above, Symbol 8 must be included next to the physical damage coverage for the policy to provide protection for damage to a rented vehicle. The reality of the marketplace, however, is that a large percentage of carriers will not offer to add Symbol 8 to physical damage coverages. INSURED: The unendorsed ISO BAC s Who is an Insured section limits coverage to the named insured for rented autos. Liability: The Who is an Insured provision reads as follows: The following are "insureds": 1. You for any covered "auto"; 2. Anyone else while using with your permission a covered "auto" you own, hire, or borrow except... You : the ISO BAC includes the following: Throughout this policy the words you and your refer to the Named Insured shown in the Declarations. 4

6 THE BIG GAPS IN THE BAC POLICY EMPLOYEE S RENTING IN THEIR OWN NAME: If the employee rents a car in his own name, for the employer s business purposes, the employee s own PAP would be providing coverage. BAC LIABILITY: The BAC covers only the insured employer s exposure for renting. The liability coverage will only be provided to anyone else when the insured (YOU) hires an auto and the anyone else is driving that vehicle with the insured s permission. When the employee rents a car in the name of the employer, the symbol 1 or symbol 8 coverage then comes into play: o Symbol 1 - Any Auto o Symbol 8 Hired Autos Only: Only those autos you lease, hire, rent or borrow. This does not include any autos you lease, hire, rent or borrow from any of your employees, partners (if you are a partnership), members (if you are a LLC) or members of their households BAC PHYSICAL DAMAGE: Physical Damage: Similar to the Liability section, the Physical Damage section limits coverage for rented autos to the insured (YOU). Although there are a variety of symbols that can be used, only Symbol 8 will provide coverage for a rented auto, and the use of Symbol 8 for physical damage coverage is very limited. Symbol Options: o Symbol 2 - Owned Autos Only o Symbol 3 Owned Private Passenger Autos Only o Symbol 4 Owned Auto other than Private Passenger Autos Only o Symbol 7 - Specifically Described Autos o Symbol 8 Hired Autos Only 5

7 THE BIG GAPS IN THE BAC POLICY BAC PHYSICAL DAMAGE Other Insurance: The Other Insurance provision states: For Hired Auto Physical Damage coverage, any covered "auto" you lease, hire, rent, or borrow is deemed to be a covered "auto" you own. However, any "auto" that is leased, hired, rented, or borrowed with a driver is not a covered "auto". BAC ISO ENDORSEMENT OPTION: For commercial insureds that would like to provide primary coverage for their employees ISO offers the EMPLOYEES HIRED AUTO endorsement #CA The endorsement makes the following changes for any covered auto indicated by symbol on the DEC page: A. Changes in Liability Coverage The following is added to the Who Is an Insured Provision: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name, with your permission, while performing duties related to the conduct of your business. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "autos" you own: 1. Any covered "auto" you lease, hire, rent or borrow; and 2. Any covered "auto" hired or rented by your "employee" under a contact in that individual "employee's" name, with your permission, while performing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". NOTE: Some carriers have already included these changes under a carrier issued coverage extension endorsement. Be sure to read the endorsements and discuss with your carriers any questions you have regarding the extent of coverage provided to employees under these company specific endorsements. 6

8 RENTAL CAR ISSUES & PERSONAL AUTO COVERAGE Massachusetts Auto Policy: o BI and PD coverages apply as long as the insured is legally liable in an owned, non-owned or temporary substitute auto however: o Part 4 Damage to someone else s property has an exclusion #7 We will not pay for property damage which occurs when the property damage is caused by anyone using an auto without the consent of the owner o Part 5 Optional Bodily Injury to others includes an exclusion Also, like the Compulsory part, this Part does not pay for the benefit of anyone using an auto without the consent of the owner o Medical payments follows the insured and household members while occupying any auto however: o Part 6 Medical Payments has an exclusions #4 Anyone injured while occupying an auto without a reasonable belief that he or she had the consent of the owner to do so o Physical damage coverages apply to both owned and non-owned autos. A non-owned auto would include a vehicle rented however: o Part 7 Collision (Part 8 Limited Collision) provides coverage as follows: Under this Part, we will pay for any direct and accidental damage to your auto caused by a collision. We will also pay for collision damage to other private passenger autos while being used by you or a household member with the consent of the owner.... The most we will pay will be either the actual cash value of the auto or the cost to physically repair the auto, whichever is less. We will, at our option, repair the auto, repair or replace any of its parts, or declare the auto a total loss. o Part 9 Comprehensive includes the same wording as found above 7

9 RENTAL CAR ISSUES & PERSONAL AUTO COVERAGE ISO Personal Auto Policy: o BI and PD coverages apply as long as the insured is legally liable in an owned, non-owned or temporary substitute auto however: o Liability Exclusion: We do not provide liability coverage for any "insured" for "property damage" to property rented to, used by, or in the care of that "insured". This exclusion (A.3.) does not apply to "property damage" to a residence or private garage o Physical Damage Coverage: We will pay for direct and accidental loss to "your covered auto" or any "nonowned auto," including their equipment, minus any applicable deductible shown in the Declarations. o Nonowned auto is defined as: "Non-owned auto" means: Any private passenger auto, pickup, van or "trailer" not owned by or furnished or available for the regular use of you or any "family member" while in the custody of or being operated by you or any "family member"... Since a rented vehicle would be a nonowned auto, in states (other than RI), the insured would need to have purchased physical damage coverage on an owned auto, and those same coverages would be applied to the vehicle they rent. In RI, a law governs how rental car coverage is provided under PAPs. CHAPTER 27-7 Casualty Insurance Generally SECTION Rental vehicle coverage. For liability assumed under a written contract, coverage shall be provided under the property damage liability section of an insured's private passenger automobile insurance policy. Property damage coverage shall extend to a rented motor vehicle, under ten thousand (10,000) lbs, without regard to negligence for a period not to exceed sixty (60) consecutive days. 8

10 GENERAL AUTO POLICY GAPS AND ISSUES Regardless of whether we are reviewing the current personal or commercial auto policy, the payment requirements under an auto rental agreement and the coverage provided under the auto policies are in conflict. Below are some examples of where our insurance contracts fail to meet the entire contractual requirements included in car rental agreements. Valuation Issues Betterment Loss payment Payment Options Administrative Fees Other Drivers Policy Territory Electronic Equipment Deductible Loss Settlement Loss of Use Towing 9

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