INSURANCE
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 either by way of an excess coverage exclusion or otherwise, with regard to medical payments made thereunder on behalf of the named insured or any relative of the named insured who is also a member of the named insured's household, is invalid and unenforceable. The Attorney General is in receipt of your opinion request wherein you ask, in effect, the following question: Under 36 O.S. 6092 [36-6092] (1971), would an excess coverage exclusion in an automobile liability policy be prohibited? The answer to your question is answered in part by previous Attorney General's Opinion No. 78-164, which held that 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 in 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. The question now is whether or not an exclusion for excess insurance coverage would fall within this same prohibition. From a reading of 36 O.S. 6092 [36-6092] in its entirety, it clearly appears that the Legislature intended for the insurer not to have the right of set-off against other benefits which the insured might receive from other sources. The use of an exclusion for excess coverage would allow the insurer in effect, a set-off against other insurance benefits which the insured, or a relative of the named insured who is also a member of the named insured's household, might have under other insurance policies or plans. We do not view this result as being consistent with the legislative intent expressed by 36 O.S. 6092 [36-6092]. 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 either by way of an excess coverage exclusion or otherwise, with regard to medical payments made thereunder on behalf of the named insured or any relative of the named insured who is also a member of the named insured's household, is invalid and unenforceable. (GERALD E. WEIS) (ksg)