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 is not available under the terms of that section, the insurer has not elected recovery by lien as provided in ORS 742.536, and the insurer is entitled by the terms of the insurers policy to the benefit of this section: (1) Subject to ORS 742.544, 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 insurers 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 persons 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 persons 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]
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