§ 913. Optional vehicle protection; requirements. 1. (a) (i) A peer-to-peer car sharing program administrator shall not charge a separately itemized fee solely for optional vehicle protection, except as follows:

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(A) the fee charged by a peer-to-peer car sharing program administrator shall represent the administrator's good-faith estimate of a daily charge, as calculated by the administrator, to recover the actual, total annual expenses, incurred by the administrator, together with a commercially reasonable allowance for the contractual risks assumed by the administrator, for the administrator's agreement with shared vehicle drivers to contractually assume liability for all or part of any damage or loss to the shared vehicle during the car sharing period;

(B) if the total amount of optional vehicle protection fees collected by a peer-to-peer car sharing program administrator under this section in any calendar year exceeds the administrator's actual costs, the administrator shall:

(1) retain the excess amount; and

(2) adjust the estimated, average per day optional vehicle protection fee for the following calendar year by a corresponding amount.

(ii) Nothing in this section shall prevent a peer-to-peer car sharing program administrator from making adjustment to the optional vehicle protection fee during the calendar year.

(b) A peer-to-peer car sharing program administrator shall not sell optional vehicle protection unless the shared vehicle driver or shared vehicle owner agrees to the purchase of such protection in writing at or prior to the time the peer-to-peer car sharing agreement is executed.

(c) A peer-to-peer car sharing program administrator shall not void optional vehicle protection contractually assumed from the shared vehicle owner except for one or more of the following reasons:

(i) the damage or loss is caused intentionally or as a result of willful, wanton, or reckless conduct of the shared vehicle driver;

(ii) the damage or loss arises out of the shared vehicle driver's use or operation of the shared vehicle while intoxicated or unlawfully impaired by the use of alcohol or drugs;

(iii) the peer-to-peer car sharing program administrator entered into the peer-to-peer car sharing agreement based on fraudulent or materially false information supplied by the shared vehicle driver;

(iv) the damage or loss arises out of the use or operation of the shared vehicle while engaged in the commission of a crime other than a traffic infraction;

(v) the damage or loss arises out of the use or operation of the shared vehicle to carry persons or property for hire, as a transportation network company or TNC vehicle as defined in Article forty-four-B of the vehicle and traffic law, to push or tow anything, while engaged in a speed contest, operating off-road, or for driver's training;

(vi) the damage or loss arises out of the use or operation of the shared vehicle by a person other than: (1) the shared vehicle driver; (2) the shared vehicle driver's spouse, child over the age of eighteen or a parent or parent-in-law of the shared vehicle driver, provided such spouse, child, parent or parent-in-law is properly licensed to operate a motor vehicle and resides in the same household as the shared vehicle driver; (3) a parking valet or parking garage attendant for compensation and in the normal course of employment; (4) any person who uses or operates the motor vehicle through a program during an emergency situation to a medical facility; or (5) any person licensed to drive who expressly is authorized to use or operate the motor vehicle by both the shared vehicle owner and the peer-to-peer car sharing agreement;

(vii) the damage or loss arises out of the use or operation of the shared vehicle outside of the United States when that use or operation is not specifically authorized by the peer-to-peer car sharing agreement; or

(viii) the shared vehicle driver or his or her spouse, child over the age of eighteen or a parent or parent-in-law of the shared vehicle driver have failed to comply with the requirements for reporting damage or loss as set forth in subdivision four of this section;

(ix) the shared vehicle owner knowingly provided erroneous or inaccurate information to the peer-to-peer car sharing program administrator in connection with any reservation for which the shared vehicle owner has agreed that the peer-to-peer car sharing program will contractually assume the risk of loss for physical damage to the shared vehicle;

(x) the shared vehicle owner fails to submit a claim for physical damage in accordance with the terms and conditions of the peer-to-peer car sharing program agreement; or

(xi) where the shared vehicle owner fails to make the shared vehicle available for inspection when a shared vehicle driver or the shared vehicle driver's insurer requests to inspect the shared vehicle in accordance with this article.

(d) A shared vehicle driver may void optional vehicle protection prior to the beginning of the car sharing period within twenty-four hours of purchase provided that the shared vehicle driver: (i) has entered into a peer-to-peer car sharing agreement with a term of two or more days; (ii) appears in person before the shared vehicle owner together with the shared vehicle that shall be subject to inspection; and (iii) signs a cancellation form provided by the peer-to-peer car sharing program administrator.

(e) After twenty-four hours of purchase, a shared vehicle driver may prospectively terminate optional vehicle protection prior to the beginning of the car sharing period, provided the shared vehicle driver: (i) appears in person before the shared vehicle owner together with the shared vehicle that shall be subject to inspection; (ii) voids the optional vehicle protection in writing; and (iii) pays the optional vehicle protection charge for any full or partial day or portion of a day during which the optional vehicle protection was in effect.

2. Subject to the provisions of subdivisions six, seven, and eight of this section, a peer-to-peer car sharing program administrator may hold a shared vehicle driver liable for actual damage to, or loss of, a shared vehicle, provided that:

(a) any claim for such damage shall be based on a physical inspection and shall be made upon the return of such shared vehicle; and

(b) any charge for repair of such damage shall be limited to actual and reasonable costs and shall be assessed and billed separately and apart from the peer-to-peer car sharing agreement.

3. (a) Any peer-to-peer car sharing program administrator that states or permits to be stated the costs of a shared vehicle in any advertisement shall state conspicuously, in plain language and in conjunction with the advertised cost of the shared vehicle and the daily rate of the applicable optional vehicle protection, that the rate constitutes an additional daily charge to the shared vehicle driver, that the purchase of such protection is optional, if such rate can be ascertained at the time of purchase and that prospective shared vehicle drivers should examine their credit card protections and motor vehicle insurance policies for coverage.

(b) Where a written advertisement, including all print media, contains the statement of the cost of the shared vehicle, the disclosure required by this section shall be printed in type no less than size twelve-point font.

(c) When the website of a peer-to-peer car sharing program administrator or the video presentation of a television or internet advertisement by such peer-to-peer car sharing program administrator contains the written statement of the cost of a shared vehicle, the depiction of such cost of the optional vehicle protection shall be clear and conspicuous.

(d) When a radio advertisement or the audio presentation of a television advertisement contains the statement of the cost of a shared vehicle, the oral statement of such cost shall immediately be accompanied by an oral statement of the cost of the optional vehicle protection if offered as a separately itemized product.

(e) When a telephone, internet or other inquiry for the cost of a shared vehicle is made to a peer-to-peer car sharing program administrator that involves an interaction with a representative of a peer-to-peer car sharing program administrator, the representative of such peer-to-peer car sharing program administrator shall, in response to the inquiry, advise that additional optional products that may be offered by such peer-to-peer car sharing program administrator shall not be included in the daily rate. If an inquiry is made regarding optional vehicle protection, the representative shall provide the cost of the optional vehicle protection and state that the purchase of such protection is optional and that the shared vehicle driver's personal motor vehicle insurance or credit card may provide coverage.

(f) Any peer-to-peer car sharing program administrator that offers optional vehicle protection to a shared vehicle driver shall disclose to such driver the following information on its website:

"NOTICE: THE FOLLOWING IS A GENERAL SUMMARY OF SHARED DRIVERS' RIGHTS AND OBLIGATIONS. FOR COMPLETE DETAILS, REFER TO THE PEER-TO-PEER CAR SHARING AGREEMENT. OPTIONAL VEHICLE PROTECTION (OVP): This contract offers, for an additional charge, OVP to cover your financial responsibility for damage or loss to the shared vehicle. OVP is also commonly referred to as a "collision damage waiver". The purchase of OVP is optional and may be declined. Before deciding whether to purchase OVP, you may wish to determine whether your credit card, or the motor vehicle insurance maintained by yourself or someone in your household, affords you any coverage for damage to the shared vehicle, and the amount of deductible under any such coverage. OVP – WHEN VOID: OVP is void and shall not apply to the following situations:

1. If the damage or loss is caused as a result of the shared vehicle driver's intentional acts; willful, wanton, or reckless conduct of the driver; or the use or operation of the shared vehicle while intoxicated or unlawfully impaired by the use of alcohol or drugs;

2. The peer-to-peer car sharing program administrator entered into the peer-to-peer sharing agreement based on fraudulent or materially false information supplied by the shared vehicle driver;

3. The damage or loss arises out of the use or operation of the shared vehicle:

(a) while engaged in the commission of a crime, other than a traffic infraction;

(b) to carry persons or property for hire, as a transportation network company or TNC vehicle as defined in Article forty-four-B of the vehicle and traffic law, to push or tow anything, while engaged in a speed contest, operating off road, or for driver's training;

(c) by a person other than: (1) the shared vehicle driver; (2) the shared vehicle driver's spouse, child over the age of eighteen or a parent or parent-in-law of the shared vehicle driver, provided such spouse, child, parent or parent-in-law is properly licensed to operate a motor vehicle and resides in the same household as the shared vehicle driver; (3) a parking valet or parking garage attendant for compensation and in the normal course of employment; (4) any person who uses or operates the motor vehicle through a program during an emergency situation to a medical facility; or (5) any person licensed to drive who expressly is authorized to use or operate the motor vehicle by both the shared vehicle owner and the peer-to-peer car sharing agreement;

(d) outside of the United States when not specifically authorized by the peer-to-peer car sharing agreement;

(e) where the shared vehicle driver, or his or her spouse, child over the age of eighteen or a parent or parent-in-law of such shared vehicle driver failed to comply with the requirements for reporting damage or loss as set forth in law. OVP – DAMAGE REPORTING REQUIREMENTS: If the shared vehicle sustains damage or loss, the shared vehicle driver is required to complete and return an incident report notice to the peer-to-peer car sharing program administrator. OVP – RIGHT TO INSPECT VEHICLE DAMAGES: The shared vehicle driver and his or her insurer have the right to request an inspection of the shared vehicle damages within seventy-two hours of the return of the vehicle. Failure of the shared vehicle driver or his or her insurer to request such inspection within seventy-two hours of return shall be deemed a waiver of such person or entity's right to inspect the damaged vehicle. THEFT OF THE SHARED VEHICLE: If the shared vehicle is stolen during the term of a peer-to-peer car sharing agreement, a shared vehicle driver must report the theft of the shared vehicle to the peer-to-peer car sharing program administrator and a law enforcement agency within twelve hours of learning of such theft."

(f) The following disclosure notice shall be made on the face of the peer-to-peer car sharing agreement either by stamp, label or as part of the written contract or on any other written document provided to the shared vehicle driver upon execution of such contract, and shall be set apart in boldface type and in no smaller print than twelve-point font: "NOTICE: This agreement offers, for an additional charge, optional vehicle protection to cover your financial responsibility for damage or loss to the shared vehicle. The purchase of optional vehicle protection is optional and may be declined. You are advised to carefully consider whether to purchase this protection if you have coverage provided by your credit card or motor vehicle insurance policy that will cover the shared vehicle. Before deciding whether to purchase optional vehicle protection, you may wish to determine whether your credit card or your motor vehicle insurance affords you coverage for damage to the shared vehicle and the amount of deductible under such coverage."

(g) The peer-to-peer car sharing agreement shall also include in boldface type and in no smaller print than twelve-point font and, in plain language, the conditions and exclusions set forth in paragraph (c) of subdivision one of this section. Upon identification by the shared vehicle owner or the peer-to-peer car sharing program administrator of damage to the shared vehicle, such peer-to-peer car sharing program administrator shall inform such shared vehicle driver of his or her right to inspect the vehicle, and the procedures and time-frames for doing so, pursuant to paragraphs (b) and (c) of subdivision five of this section.

4. (a) Upon identification of damage by the shared vehicle owner or peer-to-peer car sharing program administrator at the time of return of the shared vehicle, termination of the peer-to-peer car sharing agreement, or within ten days if an inspection for damage is precluded because the shared vehicle is returned by automation, returned after-hours, or recovered by the shared vehicle owner or peer-to-peer car sharing program administrator, the peer-to-peer car sharing program administrator shall furnish an incident report form and a notice, pursuant to this subdivision, of the obligation of the shared vehicle driver to execute and return to the peer-to-peer car sharing program administrator a complete and accurate incident report describing any physical and/or mechanical damage. If the shared vehicle is returned by automation, returned after-hours, or recovered by the shared vehicle owner or peer-to-peer car sharing program administrator, such incident report form and notice shall be mailed by overnight delivery service or certified mail, return receipt requested, and another copy of such notification shall be sent by regular mail. The peer-to-peer car sharing program administrator shall retain a copy of such notice and the certified mail return receipt for a period of six years.

(b) Within seventy-two hours of receipt of the incident report form and notice, either the shared vehicle driver or his or her insurer shall notify or send notice to the peer-to-peer car sharing program administrator that either he, she, or the insurer wishes to inspect the damaged vehicle. If the shared vehicle driver or his or her insurer does not notify or send a request for this inspection within the seventy-two-hour period, he, she, or the insurer shall be deemed to have waived such right.

(c) If the shared vehicle driver shall decline or fail to complete and return the incident report required pursuant to paragraph (a) of this subdivision, the peer-to-peer car sharing program administrator shall, no sooner than ten days after the mailing of notification pursuant to such paragraph (a), mail another copy of the incident report together with a letter stating that the shared vehicle driver has declined or otherwise failed to complete and return the incident report. Such mailing shall be by overnight delivery service or certified mail, return receipt requested, and another copy of such notification by regular mail, with proof of mailing by production of a certificate of mailing from the post office. When a request to inspect the vehicle shall have been timely made by the shared vehicle driver or his or her insurer, the inspection shall be completed within seven days of such request. If the peer-to-peer car sharing program administrator determines the damaged vehicle to be a total loss and subject to salvage, such seventy-two hour period for notification or waiver of the wish to inspect the damaged vehicle shall not apply, and the shared vehicle driver or his or her insurer shall have ten business days from the shared vehicle driver's receipt of notification from the peer-to-peer car sharing program administrator pursuant to paragraph (a) of this subdivision to inspect the damaged vehicle, which shall be made available by the shared vehicle owner. Within the limits provided in this paragraph, the peer-to-peer car sharing program administrator shall identify the repairer of, and provide access to, the damaged vehicle, in order to verify the nature and extent of damages, repairs and repair costs, and/or repair estimates.

(d) All notices shall be mailed to the address of the shared vehicle driver as stated on his or her license, or other address as designated by him or her in the peer-to-peer car sharing agreement.

(e) The shared vehicle driver shall complete and return the incident report required by paragraph (a) of this subdivision within ten days of the receipt of the notice required by such paragraph.

(f) The notice required by this subdivision shall be in at least twelve-point bold face type and shall contain the statement: "Failure to completely and accurately fill out and return an incident report within ten days of receipt of this notice may make the shared vehicle driver liable for damages sustained to the shared vehicle. Except where the damaged vehicle is determined to be a total loss and subject to salvage, the shared vehicle driver or his or her insurer has seventy-two hours from the return or recovery of the vehicle to notify the peer-to-peer car sharing program administrator that he or she wishes to inspect the damaged vehicle. The inspection shall be completed within seven business days of the request to inspect the shared vehicle. If the peer-to-peer car sharing program administrator does not receive notification from the shared vehicle driver or his or her insurer requesting such inspection within the seventy-two-hour period, the shared vehicle driver and his or her insurer will be deemed to have waived this right. If the peer-to-peer car sharing program administrator determines the damaged vehicle to be a total loss and subject to salvage, such seventy-two-hour period for notification or waiver of the wish to inspect the damaged vehicle shall not apply, and such right to inspect the damaged vehicle shall expire ten business days from the shared vehicle driver's receipt of this notice from the peer-to-peer car sharing company program administrator. Upon request of the shared vehicle driver or his or her insurer, we will provide a copy of the professional estimate of the costs of repairing the damaged motor vehicle." Information that is provided in response to a request by a peer-to-peer car sharing program administrator, but that is not provided on an incident report form, shall satisfy any reporting obligation of a shared vehicle driver if such response substantially complies with the applicable requirements of this section. If additional information is reasonably required by the peer-to-peer car sharing program administrator in order to adjust any claim of loss, same shall be requested of the shared vehicle driver as soon as reasonably practicable, who shall respond to same as soon as reasonably practicable.

(g) (i) For purposes of this subdivision, each of the following shall constitute an "incident report form":

(A) a motor vehicle accident report pursuant to § 605 of the vehicle and traffic law; or

(B) any similar appropriate form furnished by the peer-to-peer car sharing program administrator.

(ii) An incident report form described in clause (B) of subparagraph (i) of this paragraph:

(A) shall be sent or given to a shared vehicle driver with a request that he or she provide information pursuant to this section concerning damage to a vehicle possessed by a shared vehicle driver; and

(B) such form may also be made available as a fill-in form on the peer-to-peer car sharing program administrator's website, and the shared vehicle driver shall be advised of the availability of such web-based fill-in form when a request for incident information is made pursuant to this subdivision.

(h) If the shared vehicle driver is physically incapable of completing the report, the requirements of this subdivision shall lapse until after he or she is able to complete the report and is notified that he or she shall complete and return the report as required by paragraph (b) of this subdivision.

(i) The peer-to-peer car sharing program administrator shall, at least twenty days prior to commencing an action against the shared vehicle driver, provide him or her an additional opportunity to complete and submit the incident report by providing a second notice, along with another incident report form, by certified mail, return receipt requested, and another copy of such notice and report form by regular mail, with proof of mailing by production of a certificate of mailing. If such shared vehicle driver sends the peer-to-peer car sharing program administrator a completed incident report within fifteen days of the receipt of the notice, the provisions of this subdivision shall be deemed satisfied.

5. (a) A peer-to-peer car sharing program administrator may hold a shared vehicle driver liable to the extent permitted under this section for physical or mechanical damage to the shared vehicle that occurs during the time the shared vehicle is used or operated under the peer-to-peer car sharing agreement; provided, however, that a shared vehicle driver shall not be liable for any normal wear and tear or mechanical damage that could reasonably be expected from normal use or operation of the vehicle. For the purposes of this subdivision, the term "normal wear and tear" shall mean the deterioration of the condition of the vehicle or its component parts due to repetitive use and does not include damage that materially diminishes the value of the vehicle and arises from a specific occurrence or accident during the time the shared vehicle is subject to the peer-to-peer car sharing agreement; and the term "actual and reasonable costs" shall mean the cost to repair the shared vehicle including all discounts and price adjustments available to the peer-to-peer car sharing program administrator and shall include costs for towing, storage, and impound fees where applicable.

(b) The total liability of a shared vehicle driver under paragraph (a) of this subdivision for damage to a shared vehicle shall not exceed the lesser of:

(i) the actual and reasonable costs that the peer-to-peer car sharing program administrator incurred to repair the motor vehicle or that the peer-to-peer car sharing program administrator would have incurred if the motor vehicle had been repaired, which shall reflect any discounts, price reductions, or adjustments available to the peer-to-peer car sharing program administrator; or

(ii) the fair market value of the shared vehicle immediately before the damage occurred, as determined in the applicable market for the retail sale of the shared vehicle, less any net disposal proceeds.

(c) The total liability of a shared vehicle driver under paragraph (a) of this subdivision for loss of a shared vehicle shall not exceed reasonable costs incurred by the peer-to-peer car sharing program administrator for such loss due to theft of such shared vehicle up to its fair market value, as determined by the applicable market for the retail sale of such vehicle if it is established that such shared vehicle driver committed, or aided or abetted in the commission of, the theft of such shared vehicle.

(d) Damages incurred for the loss of use or operation of a shared vehicle and related administrative fees shall not be recovered from any shared vehicle driver or his or her insurer.

(e) A peer-to-peer car sharing program administrator shall not hold a shared vehicle driver liable for any amounts that the peer-to-peer car sharing program administrator recovers from any other party.

(f) A peer-to-peer car sharing program administrator shall not collect or attempt to collect the amount described in paragraph (b) of this subdivision unless the peer-to-peer car sharing program administrator:

(i) obtains an estimate from a repair company or an appraiser in the business of providing such appraisals regarding the cost of repairing such shared vehicle;

(ii) provides a copy of such estimate and photographic evidence upon request to such shared vehicle driver, as applicable who shall be liable under paragraph (a) of this subdivision, and the insurer of such shared vehicle driver; and

(iii) submits a copy of such estimate with any claim to collect the amount described in paragraph (b) of this subdivision.

(g) A claim against a shared vehicle driver resulting from damage or loss to a shared vehicle shall be reasonable and reflect the value of the actual damage or loss incurred. A peer-to-peer car sharing program administrator shall mitigate damages where possible and shall not assert or collect any claim for physical damage which exceeds the amount authorized under paragraph (b) of this subdivision.

(h) If insurance coverage exists under an applicable insurance policy of the shared vehicle driver, such driver may require that the peer-to-peer car sharing program administrator submit any claims to such driver's insurance carrier. Upon the request of a shared vehicle driver, the peer-to-peer car sharing program administrator shall submit any claims to such driver's insurance carrier and shall not make any written or oral representations to the contrary, nor shall it make any written or oral representations that it shall not negotiate with such driver's insurance carrier.

6. (a) No peer-to-peer car sharing program administrator shall collect or charge any security deposit by credit card, debit card or otherwise, for damages to a shared vehicle or report the debt to any consumer reporting agency, as defined in subdivision (e) of section three hundred eighty-a of this chapter, during the term of the peer-to-peer car sharing program agreement, pending resolution of any dispute, or prior to obtaining judgment in a court of competent jurisdiction.

(b) No peer-to-peer car sharing program administrator shall require a deposit or an advance charge against the credit card or debit card of a shared vehicle driver, in any form, for damages to a shared vehicle which is in the shared vehicle driver's possession or control.

(c) No peer-to-peer car sharing program administrator shall collect or charge any payment from a shared vehicle driver for damage to a shared vehicle upon return or recovery of such vehicle in a damaged condition, until after the cost of the damage to such vehicle and liability therefor is agreed to between such peer-to-peer car sharing program administrator and a shared vehicle driver or his or her insurer, or is determined pursuant to law or peer-to-peer car sharing program agreement provisions consistent with law and the rights and obligations set forth in this section, unless there is proof corroborating that the damage did not exist prior to the reservation and the damage is appraised by an independent third-party appraiser; provided, however, that a peer-to-peer car sharing program administrator is not precluded from presenting a claim to a shared vehicle driver and his or her insurer pursuant to other provisions of this section.

(d) Causes of action concerning the existence of, liability for, and extent and cost of damage to such vehicle shall, where appropriate, be commenced by a peer-to-peer car sharing program administrator in a court of competent jurisdiction, in accordance with the limitations and jurisdiction of the appropriate court act, provided the claimant has first mailed a demand letter. A demand letter sent by the peer-to-peer car sharing program administrator pursuant to this paragraph shall contain: (i) the name and post office address of such peer-to-peer car sharing program administrator, and of its attorney, if any; (ii) the nature of such claim; (iii) the time when, the place where and the manner in which such claim arose, if known, or if not known, the time when and place where the damage was discovered by the shared vehicle owner or peer-to-peer car sharing program administrator; and (iv) the items of damage or injuries claimed to have been sustained, accompanied by supporting documentation, such as repair bills, invoices and estimates in the possession of or available to such peer-to-peer car sharing program administrator. Such demand letter shall be served upon such shared vehicle driver and his or her insurer in a manner reasonably designed to give actual notice, via regular and certified mail, return receipt requested. Nothing contained herein shall prohibit a peer-to-peer car sharing program administrator and a shared vehicle driver or his or her insurer from entering into an agreement after a claim of loss to submit the matter to arbitration or mediation.

7. No peer-to-peer car sharing program administrator shall hold any shared vehicle driver liable for any damage to, or loss of, a shared vehicle, as provided by this section, unless such peer-to-peer car sharing program prominently discloses, in the peer-to-peer car sharing agreement, in at least twelve point bold face display, the nature and extent of such liability and such driver's rights and responsibilities pursuant to paragraph (c) of subdivision one of this section and paragraph (f) of subdivision three of this section.

8. A shared vehicle driver shall provide notice to the peer-to-peer car sharing program administrator and appropriate law enforcement agency immediately upon learning of the theft of a shared vehicle.