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This entry was published on 2014-09-22
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SECTION 5208
Notice of claim
Insurance (ISC) CHAPTER 28, ARTICLE 52
§ 5208. Notice of claim. (a) The protection provided by the
corporation on account of motor vehicle accidents caused by financially
irresponsible motorists shall be available to:

(1) Any qualified person having a cause of action because of death or
bodily injury, arising out of a motor vehicle accident occurring within
this state, who files with the corporation within one hundred eighty
days of the accrual of the cause of action, as a condition precedent to
the right to apply for payment from the corporation, an affidavit
stating that:

(A) the person has a cause of action for damages arising out of the
accident and setting forth the facts in support,

(B) the cause of action is against the owner or operator of a
designated uninsured motor vehicle, and

(C) the person is making a claim for such damages.

(2) (A) Any qualified person having a cause of action because of death
or bodily injury, arising out of a motor vehicle accident occurring
within this state and reported within twenty-four hours after the
occurrence to a police, peace or judicial officer in the vicinity or to
the commissioner, and who files with the corporation within ninety days
of the accrual of the cause of action, as a condition precedent to the
right to apply for payment from the corporation, an affidavit stating
that:

(i) the person has the cause of action for damages arising out of the
accident and setting forth the supporting facts,

(ii) the cause of action is against a person whose identity is
unascertainable, and

(iii) the person is making a claim for those damages.

(B) The fact that the accident was not reported within twenty-four
hours after the occurrence as required by subparagraph (A) hereof shall
not prejudice the rights of the person if it is shown that it was not
reasonably possible to make such a report or that it was made as soon as
was reasonably possible.

(3) (A) Any qualified person having a cause of action because of death
or bodily injury, arising out of a motor vehicle accident occurring
within this state, who files with the corporation an affidavit as a
condition precedent to the right to apply for payment from the
corporation, stating that:

(i) the person has a cause of action for damages arising out of the
accident for damages and setting forth the supporting facts,

(ii) the insurers of the person alleged to be liable for the damages
have disclaimed liability or denied coverage because of some act or
omission of the person alleged to be liable including the denial of
coverage based upon the lack of a policy of insurance in effect at the
time the cause of action arose; provided, however, that in the case of a
denial of coverage based upon the lack of a policy of insurance in
effect at the time the cause of action arose, timely reasonable efforts
had been made to ascertain insurance coverage, and

(iii) the person is making a claim for those damages.

(B) The affidavit shall be filed within one hundred eighty days of the
affiant's receipt of notice of the disclaimer or denial of coverage.

(b) If a qualified person fails to file the affidavit as provided in
paragraphs one and two of subsection (a) hereof within the specified
period, or by reason of being an infant or mentally or physically
incapacitated or deceased, is prevented from filing the affidavit as
provided in paragraph three of such subsection within the specified
period, or fails to file within one hundred eighty days, due to receipt
of erroneous information from the department of motor vehicles or
erroneous information from a police report with respect to
identification of a vehicle, then upon a filing within thirty-one days
of receipt of written notice of correction of the error by the
department of motor vehicles or discovery of the mistake contained in
the police report:

(1) The corporation may accept the filing of the affidavit if
accompanied by proof satisfactory to it, of the facts which caused the
delay and that it was not reasonably possible to file the affidavit
within the specified period and that the affidavit was filed as soon as
was reasonably possible.

(2) A court may upon like proof grant leave to file the affidavit
within a reasonable time after the expiration of the specified period.
In making its decision the court shall also and in particular consider,
whether the corporation acquired actual knowledge of the essential facts
constituting the claim within the time specified in paragraph one of
subsection (a) hereof or a reasonable time thereafter. The court shall
also consider all other relevant facts and circumstances, including
whether:

(A) The claimant failed to file a timely affidavit by reason of the
claimant's justifiable reliance upon settlement representations made by
a person believed to be the insurance representative of the financially
irresponsible motorist.

(B) The claimant in filing made an excusable error concerning the
identity or existence of the corporation against which the claim should
or could be filed.

(C) The delay in filing substantially prejudiced the corporation in
maintaining a defense on the merits.

(c) Application to the court for leave to file must be made within one
year from the beginning of the period for filing the affidavit,
specified in paragraph one, two, or three of subsection (a) hereof upon
affidavit showing the evidentiary facts which are relied on in support
of the proof required in subsection (b) of this section, accompanied by
a copy of the proposed affidavit. Notice of the return time together
with a copy of the application must be served at least eight days before
the time named for the hearing upon the corporation by delivery to the
person designated by law as a person to whom a summons in an action in
the supreme court issued against such party may be delivered.

(d) Every qualified person shall promptly furnish the corporation with
copies of all papers in any action for the enforcement of every cause of
action referred to in paragraph one, two, or three of subsection (a)
hereof.

(e) The commissioner shall furnish to the corporation, upon request,
information as to whether any operator or owner of a motor vehicle
involved in any accident had in effect at the time of the accident any
motor vehicle liability insurance or other evidence that the motor
vehicle was an insured motor vehicle.