§4023 — Title 50 War and National Defense | U.S. Code

Summary

Allows a servicemember who, after July 31, 1990, is ordered to active duty under certain parts of Title 10 and who was providing health, legal, or other professional services with a liability policy that would stop during duty to ask in writing to have that professional liability insurance suspended while on active duty. The insurer must suspend coverage when asked in writing. The insurer cannot charge premiums during the suspension and must refund or apply any premiums already paid. The insurer is not responsible for claims based on acts done while coverage is suspended. A claim that says a professional failed to arrange care during the member’s active duty is usually treated as a pre-duty action, unless services were actually provided after the suspension began. The member can get coverage back by asking in writing within 30 days after release from active duty. The insurer will tell the member when the premium is due, and the member must pay that premium within 30 days of the notice. The reinstated coverage must cover at least the remaining time left on the original policy. The insurer cannot raise the premium for that minimum reinstated period above what it charged before suspension, except for general premium increases that affected similar customers. The rule does not force suspension for other people on the same policy, and it does not cancel their obligation to pay premiums. Lawsuits for professional negligence that start during the suspension and are about acts before suspension can be stayed until the suspension ends and are treated as filed when coverage is reinstated; the suspension period is excluded from filing deadlines. If the servicemember dies during suspension, any stay ends at death, and the insurer is liable for claims as if the member had been covered at death. "Active duty," "profession," and "professional" are defined by the law.

Title 50, §4023

War and National Defense — Source: USLM XML via OLRC

(a)This section applies to a servicemember who—

(1)after July 31, 1990, is ordered to active duty (other than for training) pursuant to section 688, 12301(a), 12301(g), 12302, 12304, 12306, or 12307 of title 10 or who is ordered to active duty under section 12301(d) of such title during a period when members are on active duty pursuant to any of the preceding sections; and

(2)immediately before receiving the order to active duty—

(A)was engaged in the furnishing of health-care or legal services or other services determined by the Secretary of Defense to be professional services; and

(B)had in effect a professional liability insurance policy that does not continue to cover claims filed with respect to the servicemember during the period of the servicemember’s active duty unless the premiums are paid for such coverage for such period.

(b)(1)Coverage of a servicemember referred to in subsection (a) by a professional liability insurance policy shall be suspended by the insurance carrier in accordance with this subsection upon receipt of a written request from the servicemember by the insurance carrier.

(2)A professional liability insurance carrier—

(A)may not require that premiums be paid by or on behalf of a servicemember for any professional liability insurance coverage suspended pursuant to paragraph (1); and

(B)shall refund any amount paid for coverage for the period of such suspension or, upon the election of such servicemember, apply such amount for the payment of any premium becoming due upon the reinstatement of such coverage.

(3)A professional liability insurance carrier shall not be liable with respect to any claim that is based on professional conduct (including any failure to take any action in a professional capacity) of a servicemember that occurs during a period of suspension of that servicemember’s professional liability insurance under this subsection.

(4)For the purposes of paragraph (3), a claim based upon the failure of a professional to make adequate provision for a patient, client, or other person to receive professional services or other assistance during the period of the professional’s active duty service shall be considered to be based on an action or failure to take action before the beginning of the period of the suspension of professional liability insurance under this subsection, except in a case in which professional services were provided after the date of the beginning of such period.

(c)(1)Professional liability insurance coverage suspended in the case of any servicemember pursuant to subsection (b) shall be reinstated by the insurance carrier on the date on which that servicemember transmits to the insurance carrier a written request for reinstatement.

(2)The request of a servicemember for reinstatement shall be effective only if the servicemember transmits the request to the insurance carrier within 30 days after the date on which the servicemember is released from active duty. The insurance carrier shall notify the servicemember of the due date for payment of the premium of such insurance. Such premium shall be paid by the servicemember within 30 days after receipt of that notice.

(3)The period for which professional liability insurance coverage shall be reinstated for a servicemember under this subsection may not be less than the balance of the period for which coverage would have continued under the insurance policy if the coverage had not been suspended.

(d)(1)An insurance carrier may not increase the amount of the premium charged for professional liability insurance coverage of any servicemember for the minimum period of the reinstatement of such coverage required under subsection (c)(3) to an amount greater than the amount chargeable for such coverage for such period before the suspension.

(2)Paragraph (1) does not prevent an increase in premium to the extent of any general increase in the premiums charged by that carrier for the same professional liability coverage for persons similarly covered by such insurance during the period of the suspension.

(e)This section does not—

(1)require a suspension of professional liability insurance protection for any person who is not a person referred to in subsection (a) and who is covered by the same professional liability insurance as a person referred to in such subsection; or

(2)relieve any person of the obligation to pay premiums for the coverage not required to be suspended.

(f)(1)A civil or administrative action for damages on the basis of the alleged professional negligence or other professional liability of a servicemember whose professional liability insurance coverage has been suspended under subsection (b) shall be stayed until the end of the period of the suspension if—

(A)the action was commenced during the period of the suspension;

(B)the action is based on an act or omission that occurred before the date on which the suspension became effective; and

(C)the suspended professional liability insurance would, except for the suspension, on its face cover the alleged professional negligence or other professional liability negligence or other professional liability of the servicemember.

(2)Whenever a civil or administrative action for damages is stayed under paragraph (1) in the case of any servicemember, the action shall have been deemed to have been filed on the date on which the professional liability insurance coverage of the servicemember is reinstated under subsection (c).

(g)In the case of a civil or administrative action for which a stay could have been granted under subsection (f) by reason of the suspension of professional liability insurance coverage of the defendant under this section, the period of the suspension of the coverage shall be excluded from the computation of any statutory period of limitation on the commencement of such action.

(h)If a servicemember whose professional liability insurance coverage is suspended under subsection (b) dies during the period of the suspension—

(1)the requirement for the grant or continuance of a stay in any civil or administrative action against such servicemember under subsection (f)(1) shall terminate on the date of the death of such servicemember; and

(2)the carrier of the professional liability insurance so suspended shall be liable for any claim for damages for professional negligence or other professional liability of the deceased servicemember in the same manner and to the same extent as such carrier would be liable if the servicemember had died while covered by such insurance but before the claim was filed.

(i)For purposes of this section:

(1)The term “active duty” has the meaning given that term in section 101(d)(1) of title 10.

(2)The term “profession” includes occupation.

(3)The term “professional” includes occupational.

Notes & Related Subsidiaries

Editorial Notes

Codification Section was formerly classified to section 593 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 703 of act Oct. 17, 1940, ch. 888, art. VII, as added Pub. L. 102–12, § 5(b), Mar. 18, 1991, 105 Stat. 37, related to reinstatement of health coverage upon release from service, prior to the general amendment of this Act by Pub. L. 108–189. See section 4024 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title.

§4023 Professional liability protection