2017 ORS 742.538¹
Subrogation rights of insurers to certain amounts received by claimant
  • 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, for a person 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, and the insurer has not elected recovery by lien as provided in ORS 742.536 (Notice of claim or legal action to insurer), and is entitled by the terms of its policy to the benefit of this section:

(1) The insurer is entitled to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of the injured person against any person legally responsible for the accident, to the extent of such benefits furnished by the insurer less the insurer’s share of expenses, costs and attorney fees incurred by the injured person in connection with such recovery.

(2) The injured person shall hold in trust for the benefit of the insurer all such rights of recovery which the injured person has, but only to the extent of such benefits furnished.

(3) The injured person shall do whatever is proper to secure, and shall do nothing after loss to prejudice, such rights.

(4) If requested in writing by the insurer, the injured person shall take, through any representative not in conflict in interest with the injured person designated by the insurer, such action as may be necessary or appropriate to recover such benefits furnished as damages from such responsible person, such action to be taken in the name of the injured person, but only to the extent of the benefits furnished by the insurer. In the event of a recovery, the insurer shall also be reimbursed out of such recovery for the injured person’s share of expenses, costs and attorney fees incurred by the insurer in connection with the recovery.

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

(a) Such benefits furnished by the insurer; and

(b) The total recovery less (a).

(6) The injured person shall execute and deliver to the insurer such instruments and papers as may be 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 shall be construed and applied in accordance with the provisions of this section. [Formerly 743.830]

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

Law Review Cita­tions

27 WLR 562 (1991)

(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)

1 Legislative Counsel Committee, CHAPTER 742—Insurance Policies Generally; Property and Casualty Policies, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors742.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 742, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano742.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.