ORS 742.538
Subrogation rights of insurers to certain amounts received by injured person; recovery actions against persons causing injury


If a motor vehicle liability insurer has furnished personal injury protection benefits, or a health insurer has furnished benefits, to a person who was injured in a motor vehicle accident and the interinsurer reimbursement benefit of ORS 742.534 (Reimbursement of other insurers paying benefits) is not available under the terms of that section, the insurer has not elected recovery by lien as provided in ORS 742.536 (Notice of claim or legal action to insurer), and the insurer is entitled by the terms of the insurer’s policy to the benefit of this section:

(1)

Subject to ORS 742.544 (Reimbursement for benefits paid), the insurer is entitled to the proceeds of any settlement or judgment that results from the exercise of any rights of recovery the injured person has against any person legally responsible for the accident, to the extent of the benefits the insurer furnished less the insurer’s share of expenses, costs and attorney fees the injured person incurred in connection with the recovery.

(2)

The injured person shall hold in trust for the benefit of the insurer the amount to which the insurer is entitled under this section, which may not exceed the amount of benefits the insurer furnished.

(3)

The injured person shall do whatever is proper to secure, and may not prejudice, the rights an insurer has under this section.

(4)

If requested in writing by the insurer, the injured person shall take, in the injured person’s name and through any representative the insurer designates who is not in conflict in interest with the injured person, such action as is necessary or appropriate to recover the amounts to which the insurer is entitled under this section, including amounts for the injured person’s share of expenses, costs and attorney fees that the insurer incurred in connection with the recovery.

(5)

In calculating respective shares of expenses, costs and attorney fees under this section, the basis of allocation must be the respective proportions borne to the total recovery by:

(a)

Benefits the insurer furnished; and

(b)

The total recovery less the benefits the insurer furnished.

(6)

The injured person shall execute and deliver to the insurer instruments and papers as are appropriate to secure the rights and obligations of the insurer and the injured person as established by this section.

(7)

Any provisions in a motor vehicle liability insurance policy or health insurance policy giving rights to the insurer relating to subrogation or the subject matter of this section must be construed and applied in accordance with the provisions of this section. [Formerly 743.830; 2019 c.460 §2]

(formerly 743.830)

Notes of Decisions

Former similar statute did not authorize imposition of trust by insurer against workers compensation carrier who made payments to insured or against insurers who received payments as neither were “motorists legally responsible.” Farmers Insurance Co. v. Ownby, 40 Or App 15, 594 P2d 834 (1979)

Provision allowing insurer to require that insured bring action to recover amount of insurance benefits paid does not permit insured to bring second action on claim against tortfeasor. Wynia v. Fick, 162 Or App 365, 986 P2d 625 (1999), Sup Ct review denied

Use of process under ORS 742.534 does not bar claim filed pursuant to this section for moneys that cannot be claimed under ORS 742.534. Providence Health Plan v. Charriere, 666 F. Supp. 2d 1169 (D. Or. 2009)

Law Review Citations

27 WLR 562 (1991)

§§ 742.520 to 742.542

(formerly 743.800 to 743.835)

Notes of Decisions

Nothing in PIP statutes prohibits plaintiff from pleading and proving all special damages in a civil action, even though plaintiff has received PIP benefits from his insurer. Koberstein v. Sierra Glass, 65 Or App 409, 671 P2d 1190 (1983), as modified by 66 Or App 883, 675 P2d 1126 (1984), Sup Ct review denied

PIP endorsement which offsets PIP payments against policy’s liability limits does not contravene PIP scheme of these statutes. Edwards v. Bonneville Automobile Insurance Co., 68 Or App 863, 683 P2d 142 (1984), aff’d 299 Or 119, 699 P2d 670 (1985)


Source
Last accessed
May. 15, 2020