New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on October 7, 2004, representing the position of the New York State Insurance Department.

Re: Imposition of Surcharge on Motor Vehicle/Motorcycle Policy for DWI Conviction

Issue Presented:

With respect to an insurance policy covering a motor vehicle, including a motorcycle, may an insurer impose a surcharge for a driving while intoxicated ("DWI") conviction?

Conclusion:

With respect to an insurance policy covering a motor vehicle, including a motorcycle, N.Y. Ins. Law § 2335(a)(4) (McKinney Supp. 2004) permits an insurer to impose a surcharge for a DWI conviction "which occurred during the thirty-six month period ending on the last day of the fourth month preceding the month of the effective date of the policy."

Facts:

The inquiry is general in nature.

Analysis:

With respect to a motor vehicle insurance policy, the inquirer asks whether an insurer may surcharge an insured who is convicted of driving a motor vehicle or motorcycle while intoxicated. N.Y. Ins. Law 2335 (McKinney Supp. 2004), entitled Motor Vehicle Liability Insurance Rates; Prohibition of Surcharges for Certain Traffic Infractions, addresses this issue. That section provides in relevant part, as follows:

No insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with an insurer authorized to transact or transacting business in this state, which sells a policy providing motor vehicle liability insurance coverage in this state shall increase the policy premium in connection with the insurance permitted or required by this chapter solely because the insured or any other person who customarily operates an automobile covered by the policy:

(a) has been found guilty of a traffic infraction under any of the provisions of the vehicle and traffic law provided, however, that this provision shall not apply to a conviction for a violation which occurred during the thirty-six month period ending on the last day of the fourth month preceding the month of the effective date of the policy if such conviction consisted of:

(4) operating a motor vehicle while intoxicated or impaired by the consumption of alcohol;

As a preliminary matter, Section 2335 does not define either "motor vehicle" or "automobile" and the Insurance Law does not contain a uniform definition of either term. However, Section 125 of the Vehicle and Traffic Law, in pertinent part, defines a motor vehicle as "[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,.…" In addition, Section 123 defines a motorcycle as "[e]very motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor." The Department, in interpreting the Insurance Law, has generally construed the term motor vehicle to include motorcycles, except where there is a specific exclusion of motorcycles from the definition of motor vehicle, such as can be found in Section 5102 of the Insurance Law.1 In addition, the Department also construes the term automobile, as used in Section 2335, to have the same meaning as motor vehicle. Consequently, for the purpose of interpreting Section 2335, a motorcycle is a motor vehicle.

With respect to this inquiry, N.Y. Ins. Law § 2335 prohibits insurers from increasing the policy premium on a motor vehicle liability insurance policy solely because the insured or other person who operates the covered vehicle has been found guilty of a traffic infraction under the provisions of the Vehicle and Traffic Law. However, Section 2335(a) provides exceptions for certain traffic convictions. Specifically, Section 2335(a)(4) permits a surcharge for a DWI conviction that occurred during the thirty-six month period ending on the last day of the fourth month preceding the month of the effective date of a motor vehicle policy.

For further information you may contact Associate Attorney D. Monica Marsh at the New York City Office.


1  See OGC Op. dated October 17, 2003 and authored by Senior Attorney Robert Freedman, for further discussion of this issue.