The Office of General Counsel issued the following opinion on February 17, 2006, representing the position of the New York State Insurance Department.
Re: Surcharge of an Insured's Premium for Non-commercial Motor Vehicle Liability Insurance
May an insurer that issues a non-commercial motor vehicle liability insurance policy in the voluntary market or in the New York Automobile Insurance Plan surcharge an insured's premium for an occurrence involving No-Fault first-party benefits for bodily injury where the motor vehicle was in operation and the insured was at fault?
Yes, pursuant to Section 169.1(c) of N.Y. Comp. Codes R. & Regs. tit. 11, Part 169 (1997) (Regulation 100), a surcharge of the insured's premium is permissible.
The facts are encompassed in the question.
Section 169.1(c) of N.Y. Comp. Codes R. & Regs. tit. 11, Part 169 (1997) (Regulation 100) states in pertinent part: "Claims for bodily injury. A surcharge may be imposed for an occurrence involving bodily injury (including a no-fault injury subject to article 51 of the Insurance Law), provided the motor vehicle was in operation and the insured was at fault." However, the surcharge pursuant to Section 169.1(c) of Regulation 100 would not apply if any exception and restriction contained in Section 169.1(d)(1) of Regulation 100 would apply. Therefore, whether or not there was only a loss involving No-Fault first-party benefits would not be determinative.
For further information one may contact Senior Attorney Robert Freedman at the New York City Office.