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Senator Jimmy Birdsong
INSURANCE Under 36 O.S. 6902 [36-6902] (1971), a provision in an automobile liability insurance policy which provides the insurer with the right of set-off or subrogation with regard to medical payments thereunder on behalf of the named insured, or any relative of the named insured who is a member of the named insured's household, is invalid and unenforceable; however, such policy may provide a right of set-off or subrogation to the insurer with regard to medical payments made thereunder on behalf of any person who is not the named insured or a relative of the named insured who is a member of the named insured's household.
The Attorney General has considered your request for an opinion wherein you ask, in effect, the following question: In view of 36 O.S. 6092 [36-6092] (1971), are automobile liability insurance policies which provide for set-offs or subrogation rights with regard to medical payments made thereunder valid and enforceable as to that type of set-off or subrogation provision?
You point out in your request letter that the State Board of Property and Casualty Rates has approved automobile insurance contracts with medical pay coverage provisions wherein the company is entitled to a set-off or subrogation right.
You also point out the prohibition contained in 36 O.S. 6092 [36-6092] (1971), which reads as follows: "No provision in an automobile liability policy or endorsement for such coverage effective in this state issued by an insurer on and after the effective date of this act which grants the insurer the right of subrogation for payment of benefits under the expenses for the medical services coverage portion of the policy, to a named insured under the policy, or to any relative of the named insured who is a member of the named insured's household shall be valid and enforceable; provided, that such policy or endorsement may provide for said insurer's right of subrogation and set-off upon such payments to any person who is not a named insured under the policy or a relative of the named insured who is a member of the named insured's household." It is clear from a plain reading of 36 O.S. 6092 [36-6092] (1971) that an automobile liability policy provision giving the insurer a set-off or right of subrogation as to medical expenses for the named insured under the policy or for any relative of the named insured who is a member of the named insured's household is invalid and unenforceable.
That same provision of statute, however, provides that such a policy may provide for the insurer's right of set-off or subrogation in respect to those medical expense payments to any person who is not a named insured under the policy or who is not a relative of the named insured living in the named insured's household.
It is, therefore, the opinion of the Attorney General that your question be answered as follows: Under 36 O.S. 6092 [36-6092] (1971), a provision in an automobile liability insurance policy which provides the insurer with the right of set-off or subrogation with regard to medical payments made thereunder on behalf of the named insured, or any relative of the named insured who is a member of the named insured's household, is invalid and unenforceable; however, such policy may provide a right of set-off or subrogation to the insurer with regard to medical payments made thereunder on behalf of any person who is not the named insured or a relative of the named insured who is a member of the named insured's household.
(GERALD E. WEIS) (ksg) ** SEE: 637 P.2d 125, AETNA CASUALTY SURETY V. STATE BOARD FOR PROPERTY RATES