26-18-121. Overinsurance; all coverages.

(a) "Overinsurance: If, with respect to a person covered under this policy, benefits for allowable expense incurred during a claim determination period under this policy together with benefits for allowable expense during that period under all other valid coverage, without giving effect to this provision or to any 'overinsurance provision' applying to the other valid coverage, exceed the total of the person's allowable expense during the period, this insurer is liable only for the proportionate amount of the benefits for allowable expense under this policy during the period as:

(i) The total allowable expense during the period bears to:

(A) The total amount of benefits payable during the period for the expense under this policy and all other valid coverage, without giving effect to this provision or to any 'overinsurance provision' applying to the other valid coverage; less

(B) In this paragraph any amount of benefits for allowable expenses payable under other valid coverage which does not contain an overinsurance provision.

(b) The provisions of subsection (a) of this section do not operate to increase the amount of benefits for allowable expense payable under this policy with respect to a person covered under this policy above the amount which would have been paid in the absence of these provisions. This insurer may pay benefits to any insurer providing other valid coverage in case of overpayment by the insurer. Any such payment discharges this insurer's liability as fully as if the payment is made directly to the insured, his assignee or his beneficiary. If this insurer pays benefits to the insured, his assignee or his beneficiary, exceeding the amount payable if the existence of other valid coverage had been disclosed, this insurer has a right of action against the insured, his assignee or his beneficiary to recover the amount which would not have been paid had there been a disclosure of the existence of other valid coverage. The amount of other valid coverage which is on a provision of service basis shall be computed as the amount the services rendered would have cost in the absence of that coverage.

(c) For the purpose of the provisions in subsections (a) and (b) of this section:

(i) 'Allowable expense' means one hundred ten percent (110%) of any necessary, reasonable and customary item of expense which is covered, in whole or part, as a hospital, surgical, medical or major medical expense under this policy or under any other valid coverage;

(ii) 'Claim determination period' with respect to any covered person means the initial period of .... (insert period of not less than thirty days) and each successive period of a like number of days, during which allowable expense covered under this policy is incurred because of that person. The first period begins on the date when the first expense is incurred, and successive periods begin when an expense is incurred after expiration of a prior period, or, instead: 'Claim determination period' with respect to any covered persons means .... (insert calendar or policy period of not less than a month) during which allowable expense covered under this policy is incurred because of that person;

(iii) 'Overinsurance provision' means this provision and any other provision which may reduce an insurer's liability because of the existence of benefits under other valid coverage."

(d) The policy provisions specified in subsections (a) through (c) of this section may be inserted in all policies providing hospital, surgical, medical or major medical benefits. The insurer may make this provision applicable to either or both other valid coverage with other insurers and other valid coverage with the same insurer. The insurer shall include in this provision a definition of "other valid coverage" approved as to form by the commissioner. The term may include hospital, surgical, medical or major medical benefits provided by group, blanket or franchise coverage, individual and family-type coverage, Blue Cross-Blue Shield coverage and other prepayment plans, group practice and individual practice plans, uninsured benefits provided by labor-management trusteed plans, or union welfare plans, or by employer or employee benefit organizations, benefits provided under governmental programs, worker's compensation insurance or any coverage required or provided by any other statute, and medical payments under automobile liability and personal liability policies. Other valid coverage does not include payments made under third party liability coverage as a result of a determination of negligence, but an insurer may include a subrogation clause in its policy. As part of the proof of claim, the insurer may require the information necessary to administer this provision.