HB0272RPS

HOUSE REGULATORY AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR HOUSE TRANSPORTATION AND PUBLIC WORKS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 272

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO TRANSPORTATION; ENACTING THE TRANSPORTATION NETWORK COMPANY SERVICES ACT AND PROVIDING FOR ADMINISTRATION OF THE ACT BY THE PUBLIC REGULATION COMMISSION; CREATING A FUND; PROVIDING PENALTIES; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 24 of this act may be cited as the "Transportation Network Company Services Act".

SECTION 2. [NEW MATERIAL] PURPOSE.--The purpose of the Transportation Network Company Services Act is to ensure the safety, reliability and cost-effectiveness of transportation network company services within New Mexico and to preserve and enhance access to these transportation options for residents and visitors to the state.

SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Transportation Network Company Services Act:

A. "transportation network company" means an entity that is licensed pursuant to the Transportation Network Company Services Act, that is operating in New Mexico and that uses a digital network or software application service to connect passengers to transportation network company services provided by transportation network company drivers. A transportation network company is not deemed to own, control, operate or manage the vehicles used by the transportation network company drivers and is not a taxicab association or a for-hire vehicle owner;

B. "transportation network company driver" means an individual who operates a motor vehicle that is:

(1) owned, leased or otherwise authorized for use by the individual;

(2) not a taxicab or a for-hire vehicle; and

(3) used to provide transportation network company services; and

C. "transportation network company services" means transportation of a passenger between points chosen by the passenger and prearranged with a transportation network company driver through the use of a transportation network company digital network or software application. Transportation network company services shall begin when a transportation network company driver accepts a request for transportation received through the use of a transportation network company digital network or software application service, continue while the transportation network company driver transports the passenger in the transportation network company driver's vehicle and ends when the passenger exits the transportation network company driver's vehicle. "Transportation network company services" do not include taxicab, for-hire vehicle or street hail services.

SECTION 4. [NEW MATERIAL] NOT OTHER CARRIERS.-- Transportation network companies or transportation network company drivers offering or providing transportation network company services are not motor carriers as defined in the Motor Carrier Act nor do they provide taxicab or for-hire service. A transportation network company driver's vehicle is not a commercial or for-hire vehicle and is not subject to registration as a commercial or for-hire motor vehicle.

SECTION 5. [NEW MATERIAL] TRANSPORTATION NETWORK COMPANY PERMIT.--

A. A person shall not operate a transportation network company in New Mexico without first having obtained a permit from the public regulation commission.

B. The public regulation commission shall determine the form and manner of application for a transportation network company permit and shall issue a permit to each applicant that meets the requirements for a transportation network company as defined in the Transportation Network Company Services Act and any rules and regulations promulgated by the public regulation commission that are specifically necessary for enforcement of the act. The transportation network company shall pay an annual permit fee of ten thousand dollars ($10,000) to the public regulation commission.

SECTION 6. [NEW MATERIAL] AGENT.--A transportation network company shall maintain an agent for services of process in New Mexico.

SECTION 7. [NEW MATERIAL] FARE CHARGED FOR SERVICES.--A transportation network company may charge a fare for the services provided to passengers; provided that, if the fare is charged, the transportation network company shall disclose to passengers the fare calculation method on its web site or within the software application service. The transportation network company shall also provide passengers with the applicable rates being charged and the option to receive an estimated fare before the passenger enters the transportation network company's driver's vehicle.

SECTION 8. [NEW MATERIAL] IDENTIFICATION OF THE VEHICLES AND DRIVERS.--The transportation network company's web site or software application shall display a picture of the transportation network company driver and the license plate number of the motor vehicle used for providing the transportation network company service before the passenger enters the transportation network company driver's vehicle.

SECTION 9. [NEW MATERIAL] ELECTRONIC RECEIPT.--Within a reasonable period of time following the completion of a trip, a transportation network company shall transmit an electronic receipt to the passenger that lists:

A. the origin and destination of the trip;

B. the total time and distance of the trip; and

C. an itemization of the total fare paid, if any.

SECTION 10. [NEW MATERIAL] INSURANCE.--

A. After July 1, 2015, transportation network companies and their drivers shall comply with the automobile liability insurance requirements of this section.

B. The following automobile liability insurance requirements shall apply during the time that a transportation network company driver is logged into the company's digital network and available to receive requests for transportation but is not providing transportation network company services.

(1) A transportation network company or a driver shall maintain contingent liability insurance with a liability limit equal to at least the minimum amount required by Section 66-5-208 NMSA 1978. At a minimum, the contingent liability insurance must provide liability coverage if the driver's insurer for personal automobile insurance validly denies coverage under the terms of the driver's personal automobile insurance policy or the driver otherwise does not have personal automobile insurance coverage. Nothing in this paragraph precludes an insurer's right to equitable subrogation. The requirements of this paragraph expire on January 15, 2016.

(2) After January 15, 2016, a driver or a transportation network company on the driver's behalf shall maintain a primary liability automobile insurance policy that:

(a) recognizes that the driver is a transportation network company driver and provides coverage while the driver is logged into the transportation network company's digital network;

(b) meets at least the minimum coverage of Section 66-5-208 NMSA 1978; and

(c) is one of the following: 1) full-time coverage equivalent to the coverage required by Section 65-2A-18 NMSA 1978; 2) an insurance rider to, or endorsement of, the driver's personal automobile insurance policy; or 3) a corporate liability insurance policy purchased by the transportation network company that provides primary coverage for the period of time in which a driver is logged into the digital network.

C. Nothing in this section requires a personal automobile insurance policy to provide coverage for the period of time in which a driver is logged into a transportation network company's digital network.

D. If more than one insurance policy provides valid and collectible coverage for a loss arising out of an occurrence involving a motor vehicle operated by a driver, the responsibility for the claim must be divided on a pro rata basis among all of the applicable policies. This equal division of responsibility may only be modified by the written agreement of all of the insurers of the applicable policies and the owners of those policies.

E. The following automobile liability insurance requirements shall apply while a transportation network company driver is providing transportation network services:

(1) the provision of primary automobile liability insurance that recognizes the transportation network company driver's provision of transportation network services;

(2) the provision of automobile liability insurance of at least one million dollars ($1,000,000) for death, personal injury and property damage;

(3) the provision of uninsured and underinsured motorist coverage of at least one million dollars ($1,000,000) per occurrence; and

(4) the coverage requirements of this subsection may be satisfied by any of the following:

(a) automobile liability insurance maintained by the transportation network company driver;

(b) automobile liability insurance maintained by the transportation network company; or

F. In every instance where insurance maintained by a transportation network company driver to fulfill the insurance requirements of this section has lapsed, failed to provide the required coverage, denied a claim for the required coverage or otherwise ceased to exist, insurance maintained by the transportation network company shall provide the coverage required by this section beginning with the first dollar of a claim.

G. Insurance required by this section may be placed with an insurer authorized to do business in the state or with a surplus lines insurer eligible under Chapter 59A, Article 14 NMSA 1978.

H. Insurance required by this section shall be deemed to satisfy the financial responsibility requirement for a motor vehicle under Chapter 66, Article 5 NMSA 1978.

SECTION 11. [NEW MATERIAL] TRANSPORTATION NETWORK COMPANY AND INSURER DISCLOSURE REQUIREMENTS.--

A. The transportation network company shall disclose in writing to transportation network drivers the following before they are allowed to accept a request for transportation network services on the transportation network company's digital network:

(1) the insurance coverage and limits of liability that the transportation network company provides while the transportation network company driver uses a personal vehicle in connection with the transportation network company's digital network; and

(2) that the transportation network driver's own insurance policy might not provide coverage while the transportation network driver uses a vehicle in connection with a transportation network company's digital network depending on its terms.

B. Insurers that write automobile liability insurance in New Mexico may, notwithstanding the provisions contained in Section 66-5-205.3 NMSA 1978, exclude any and all coverage and the duty to defend afforded under the owner's insurance policy for any loss or injury that occurs while an insured vehicle provides or is available to provide transportation network company services. This right to exclude coverage and the duty to indemnify and defend may apply to any coverage included in an automobile liability insurance policy, including:

(1) liability coverage for bodily injury and property damage;

(2) uninsured and underinsured motorist coverage;

(3) medical payments coverage;

(4) comprehensive physical damage coverage; and

(5) collision physical damage coverage.

C. Automobile liability insurers that exclude coverage pursuant to this section shall have no duty to defend or indemnify any claim excluded. Nothing in this section shall be deemed to invalidate or limit an exclusion contained in a policy and approved for sale in New Mexico before the effective date of the Transportation Network Company Services Act.

D. Automobile liability insurance maintained by the transportation network company shall have the duty to defend and indemnify any claim excluded by a transportation network company driver's automobile liability insurer pursuant to this section.

E. An automobile liability insurer that defends or indemnifies a claim that is excluded under the terms of its policy pursuant to this section shall have a right of subrogation against automobile liability insurance maintained by the transportation network company to satisfy the coverage requirements of Section 10 of the Transportation Network Company Services Act.

F. In a claims coverage investigation, transportation network companies and any insurer providing coverage under Section 10 of the Transportation Network Company Services Act shall cooperate to facilitate the exchange of information, including the precise times that a transportation network company driver logged on and off of the transportation network company's digital network in the twenty-four-hour period immediately preceding the accident, and disclose to one another a clear description of the coverage, exclusions and limits provided under any insurance policy that each party issued or maintained.

G. If the vehicle that a transportation network company driver plans to use to provide transportation network company services for a transportation network company has a lien against it, the transportation network company driver shall notify the lien holder that the driver will be using the vehicle for transportation services that may violate the terms of the contract with the lien holder.

SECTION 12. [NEW MATERIAL] ZERO TOLERANCE FOR DRUG OR ALCOHOL USE.--

A. The transportation network company shall implement a zero tolerance policy on the use of illegal drugs or alcohol while a transportation network company driver is providing transportation network company services or is logged into the transportation network company's digital network but is not providing transportation network company services. The transportation network company shall provide notice of this policy on its web site as well as procedures to report a complaint about a driver with whom a passenger was matched and who the passenger reasonably suspects was under the influence of illegal drugs or alcohol during the course of the trip.

B. Upon receipt of such passenger complaint alleging a violation of the zero tolerance policy, the transportation network company shall immediately suspend the transportation network company driver's access to the transportation network company's digital platform and shall conduct an investigation into the reported incident. The suspension shall last the duration of the investigation.

C. The transportation network company shall maintain records relevant to the enforcement of this requirement for a period of at least three years from the date that a passenger complaint is received by the transportation network company.

SECTION 13. [NEW MATERIAL] TRANSPORTATION NETWORK COMPANY DRIVER REQUIREMENTS.--

A. Prior to permitting an individual to act as a transportation network company driver on its digital platform, the transportation network company shall:

(1) require the individual to submit an application to the transportation network company, which includes information regarding the individual's address, age, driver's license, driving history, motor vehicle registration, automobile liability insurance and other information required by the transportation network company;

(2) conduct, or have a third party conduct, a local and national criminal background check for each applicant that shall include:

(a) a multistate, multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation; and

(b) the national sex offender registry database; and

(3) obtain and review a driving history research report for such individual.

B. The transportation network company shall not permit an individual to act as a transportation network company driver on its digital platform who:

(1) has had more than three moving violations in the prior three-year period, or one major violation in the prior three-year period, including but not limited to attempting to evade the police, reckless driving or driving on a suspended or revoked license;

(2) has been convicted, within the past seven years, of driving under the influence of illegal drugs or alcohol, fraud, a sexual offense, use of a motor vehicle to commit a felony, a crime involving property damage or theft, an act of violence or an act of terror;

(3) is a match in the national sex offender registry database;

(4) does not possess a valid driver's license;

(5) does not possess proof of registration for the motor vehicle used to provide transportation network company services;

(6) does not possess proof of automobile liability insurance for the motor vehicle used to provide transportation network company services; or

(7) is not at least nineteen years of age.

C. The transportation network company shall maintain records verifying the requirements of this section for at least three years.

D. A transportation network company driver shall not provide transportation network company services for more than twelve hours out of any twenty-four-hour period.

SECTION 14. [NEW MATERIAL] VEHICLE SAFETY.--The transportation network company shall require that any motor vehicle that a transportation network company driver uses to provide transportation network company services meets New Mexico's vehicle equipment standards applicable to a private motor vehicle pursuant to the Motor Vehicle Code.

SECTION 15. [NEW MATERIAL] NO STREET HAILS.--A transportation network company driver shall exclusively accept rides booked through a transportation network company's digital network or software application service and shall not solicit or accept street hails.

SECTION 16. [NEW MATERIAL] NO CASH TIPS OR PAYMENT.--The transportation network company shall adopt a policy prohibiting solicitation or acceptance of cash tips or payments from passengers and notify transportation network company drivers of such policy. Transportation network company drivers shall not solicit or accept cash tips or payments from passengers. Any payment for transportation network company services shall be made only electronically using the transportation network company's digital network or software application.

SECTION 17. [NEW MATERIAL] NO DISCRIMINATION--ACCESSIBILITY.--

A. The transportation network company shall adopt a policy of nondiscrimination on the basis of race, color, national origin, religious belief or affiliation, sex, disability, age, sexual orientation or gender identity with respect to passengers and potential passengers. The transportation network company shall notify transportation network company drivers of such policy.

B. Transportation network company drivers shall comply with all applicable laws regarding nondiscrimination against passengers or potential passengers on the basis of destination, race, color, national origin, religious belief or affiliation, sex, disability, age, sexual orientation or gender identity.

C. Transportation network company drivers shall comply with all applicable laws relating to accommodation of service animals.

D. A transportation network company shall not impose additional charges for providing services to persons with physical disabilities because of those disabilities.

E. A transportation network company shall provide passengers an opportunity to indicate whether they require a wheelchair-accessible vehicle. If a transportation network company cannot arrange wheelchair-accessible transportation network company service in any instance, it shall direct the passenger to an alternate provider of wheelchair-accessible service, if available.

SECTION 18. [NEW MATERIAL] TRIP RECORDS.--A transportation network company shall maintain:

A. individual trip records for at least three years from the date each trip was provided; and

B. transportation network company driver records at least until the one-year anniversary of the date on which a transportation network company driver's activation on the transportation network company digital network has ended.

SECTION 19. [NEW MATERIAL] PERSONALLY IDENTIFIABLE INFORMATION.--A transportation network company shall not disclose a passenger's personally identifiable information to a third party unless:

A. the passenger consents;

B. disclosure is required by a legal obligation; or

C. disclosure is required to protect or defend the terms of use of the service or to investigate violations of those terms. In addition to the foregoing, a transportation network company shall be permitted to share a passenger's name and telephone number with the transportation network company driver providing transportation network company services to such passenger in order to facilitate correct identification of the passenger by the transportation network company driver or to facilitate communication between the passenger and the transportation network company driver.

SECTION 20. [NEW MATERIAL] CONTROLLING AUTHORITY.--Notwithstanding any other provision of law, transportation network companies and transportation network company drivers are governed exclusively by the Transportation Network Company Services Act and any rules or regulations promulgated by the public regulation commission consistent with that act. No municipality or other local entity may impose a tax on, or require a license for, a transportation network company, a transportation network company driver or a vehicle used by a transportation network company driver or subject a transportation network company to the municipality's or other local entity's rate, entry, operational or other requirements, except for generally applicable business licenses or business-related taxes imposed at the local level.

SECTION 21. [NEW MATERIAL] TRANSPORTATION DIVISION

FUND--CREATED--ASSESSMENT AND COLLECTION OF FEES.--

A. The transportation division fund is created in the state treasury for the purpose of ensuring the safety and financial responsibility of transportation network companies and transportation network company drivers. The fund shall consist of fees collected pursuant to the Transportation Network Company Services Act, administrative fines collected under that act, appropriations, gifts, grants, donations and earnings on investment of the fund. Balances in the fund shall not revert to the general fund or any other fund at the end of any fiscal year.

B. The transportation division fund shall be administered by the public regulation commission. Money in the fund is appropriated to the commission to carry out its duties pursuant to the provisions of the Transportation Network Company Services Act. Not more than five percent of the fees collected pursuant to this section shall be used by the commission for administrative purposes.

C. Payments from the transportation division fund shall be made upon vouchers issued and signed by the director of the administrative services division of the public regulation commission or the director's authorized representative upon warrants drawn by the secretary of finance and administration.

SECTION 22. [NEW MATERIAL] RECORDS PURSUANT TO RULES OF THE PUBLIC REGULATION COMMISSION.--

A. A transportation network company holding a permit issued by the public regulation commission shall maintain the records required pursuant to the Transportation Network Company Services Act to be collected by the transportation network company, including records regarding transportation network company drivers.

B. In response to a specific complaint, the public regulation commission, its employees or its duly authorized agents may inspect those records held by a transportation network company for the investigation and resolution of the complaint.

C. No more than semiannually and as determined by the public regulation commission, the commission, its employees or its duly authorized agents may, in a mutually agreed setting, inspect those records held by a transportation network company whose review is necessary to ensure public safety; provided that such review shall be on an audit rather than a comprehensive basis.

D. Any proprietary records obtained by the public regulation commission pursuant to this section shall not be subject to disclosure by the commission.

SECTION 23. [NEW MATERIAL] ADMINISTRATIVE PENALTIES.--

A. If the public regulation commission finds after investigation that a provision of the Transportation Network Company Services Act or an order or rule of the commission is being, has been or is about to be violated, it may issue an order specifying the actual or proposed acts or omissions to act that constitute a violation and require that the violation be discontinued, rectified or prevented.

B. Notwithstanding the existence of any other penalties, the public regulation commission may assess an administrative fine of not more than one thousand dollars ($1,000) for each violation of a provision of the Transportation Network Company Services Act or of a lawful rule or order of the commission. In the case of a continuing violation, each day's violation shall be deemed to be a separate and distinct offense.

C. All penalties accruing under the Transportation Network Company Services Act shall be cumulative, and a suit for recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution.

SECTION 24. [NEW MATERIAL] INVOLUNTARY SUSPENSION AND REVOCATION.--

A. The public regulation commission shall immediately suspend, without notice or a hearing, the permit of a transportation network company for failure to:

(1) continuously maintain the amounts of financial responsibility prescribed by the Transportation Network Company Services Act;

(2) pay the fees owed by the transportation network company and the transportation network company's drivers; or

(3) operate in a manner that does not pose an immediate or imminent threat to public safety.

B. Once suspended, the transportation network company may apply for reinstatement by requesting a public hearing before the public regulation commission. At the public hearing on reinstatement, the transportation network company shall have the burden of proving that the reasons for the suspension no longer pertain.

SECTION 25. Section 66-5-205.3 NMSA 1978 (being Laws 2003, Chapter 171, Section 1) is amended to read:

"66-5-205.3. MOTOR VEHICLE INSURANCE POLICY--PROCEDURES.--

A. A motor vehicle insurance policy shall:

(1) designate by explicit description or by appropriate reference all motor vehicles to which coverage is to be granted; and

(2) insure the person named in the policy and a person using any such motor vehicle with the express or implied permission of the named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of the motor vehicle within a jurisdiction, subject to the requirement to provide evidence of financial responsibility pursuant to the Mandatory Financial Responsibility Act.

B. A motor vehicle insurance policy shall insure a person named as insured against loss from the liability imposed upon the person by law for damages arising out of the use, with the express or implied permission of the owner or person in lawful possession, of a motor vehicle that the insured person does not own. The policy shall insure the person within the same territorial limits and in compliance with the requirement of evidence of financial responsibility as set forth in the Mandatory Financial Responsibility Act with respect to a motor vehicle insurance policy. A motor vehicle liability policy in which the described vehicle is a private passenger car is not required to provide liability insurance coverage for a non-owned truck tractor designed to pull a trailer or semitrailer.

C. Permitted exceptions to coverage otherwise required by Subsections A and B of this section may include the following if excluded by the motor vehicle insurance policy:

(1) an automobile business exclusion;

(2) a furnished for regular use exclusion;

(3) a vehicle rented for business use exclusion if the exclusion is contained in the motor vehicle insurance policy and is enforceable;

(4) an exclusion for any liability of the United States government or its agencies when the provisions of the Federal Tort Claims Act apply;

(5) an exclusion for liability of the insured under any workers' compensation law;

(6) an exclusion for damages to property owned by, rented to, in the charge of or transported by an insured; provided, however, that this exclusion shall not apply to damages to a residence or private garage rented by an insured; and

(7) an exclusion to apply when a vehicle is rented to others, made available to carry persons for a charge or used to carry persons for a charge, including when a vehicle is being used while logged into a transportation network company's digital network and available to take requests for transportation and when the vehicle is being used to provide transportation network company services; provided, however, that this exclusion shall not apply to use on a shared expense basis.

D. The motor vehicle insurance policy shall state the name and address of the insured, the coverage afforded by the policy, the premium charged, the policy period and the limits of liability. The policy shall also contain an agreement or endorsement that states that the insurance is:

(1) provided in accordance with the coverage defined in the Mandatory Financial Responsibility Act regarding bodily injury and death or property damage or both; and

(2) subject to all the provisions of that act.

E. Every motor vehicle insurance policy shall be subject to the following provisions, which may be contained in the policy:

(1) the policy may not be canceled or annulled as to the liability of the insurance carrier with respect to the insurance required by the Mandatory Financial Responsibility Act by an agreement between the insurance carrier and the insured after the occurrence of the injury or damage;

(2) the satisfaction by the insured of a judgment for injury or damage shall not be a condition precedent to the right or duty of the insurance carrier to pay on account of injury or damage;

(3) the insurance carrier has the right to settle a claim covered by the policy. If the settlement is made in good faith, the amount of the settlement is deductible from the limits of liability specified in the Mandatory Financial Responsibility Act; and

(4) the policy, the declarations page, the written application and a rider or an endorsement that does not conflict with the provisions of the Mandatory Financial Responsibility Act constitute the entire contract between the parties.

F. A binder issued pending the issuance of a motor vehicle insurance policy is deemed to fulfill the requirements for the policy."

SECTION 26. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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