§431:10A-106  Optional provisions.  Exceptas provided in section 431:10A-107, no policy of accident and health orsickness insurance delivered or issued for delivery to any person in this Stateshall contain the provisions set forth below unless the provisions are in thewords in which they appear below; provided that the insurer may substitutecorresponding provisions of different wording approved by the commissioner thatare in each instance not less favorable in any respect to the insured or thebeneficiary.  Such provisions are optional provisions.  Any such provisioncontained in the policy shall be preceded individually by the specified captionor, at the option of the insurer, by such appropriate individual or groupcaptions or subcaptions as the commissioner may approve.  The provisions are asfollows:

(1)  "Change ofOccupation:  If the insured is injured or contracts sickness after havingchanged occupations to one classified by the insurer as more hazardous thanthat stated in this policy or while doing for compensation anything pertainingto an occupation so classified, the insurer will pay only such portion of theindemnities provided in this policy as the premium paid would have purchased atthe rates and within the limits fixed by the insurer for the more hazardousoccupation.  If the insured's occupation changes to one classified by theinsurer as less hazardous than that stated in this policy, the insurer, uponreceipt of proof of such change of occupation, will reduce the premium rateaccordingly, and will return the excess pro rata unearned premium from the dateof change of occupation or from the policy anniversary date immediatelypreceding receipt of such proof, whichever is the more recent.  In applyingthis provision, the classification of occupational risk and the premium shallbe such as have been last filed by the insurer prior to the occurrence of theloss for which the insurer is liable or prior to date of proof of change inoccupation with the state official having supervision of insurance in the statewhere the insured resided at the time this policy was issued; but if suchfiling was not required, then the classification of occupational risk and thepremium rates shall be those last made effective by the insurer in such stateprior to the occurrence of the loss or prior to the date of proof of change inoccupation."

(2)  "Misstatement of Age:  If the age of theinsured has been misstated, all amounts payable under this policy shall be suchas the premium paid would have purchased at the correct age."

(3)  Other insurance in this insurer shall be in oneof the following forms:

(A)  "Other Insurance in This Insurer:  Ifan accident and health or sickness policy or policies previously issued by theinsurer to the insured be in force concurrently herewith, making the aggregateindemnity for (insert type of coverage or coverages) in excess of $ (insertmaximum limit of indemnity or indemnities) the excess insurance shall be voidand all premiums paid for such excess shall be returned to the insured or tothe insured's estate."; or

(B)  "Other Insurance in This Insurer: Insurance effective at any one time on the insured under a like policy orpolicies in this insurer is limited to the one such policy elected by theinsured, the insured's beneficiary, or the insured's estate, as the case maybe, and the insurer will return all premiums paid for all other suchpolicies."

(4)  Insurance with other insurers.  Either or both ofthe following forms shall be used:

(A)  (i)  "Insurance with Other Insurers:  Ifthere be other valid coverage, not with this insurer, providing benefits forthe same loss on a provision of service basis or on an expense incurred basisand of which this insurer has not been given written notice prior to theoccurrence or commencement of loss, the only liability under any expenseincurred coverage of this policy shall be for such proportion of the loss asthe amount which would otherwise have been payable hereunder plus the total ofthe like amounts under all such other valid coverages for the same loss ofwhich this insurer had notice bears to the total like amounts under all validcoverages for such loss, and for the return of such portion of the premiumspaid as shall exceed the pro rata portion for the amount so determined.  Forthe purpose of applying this provision when other coverage is on a provision ofservice basis, the like amount of such other coverage shall be taken as theamount which the services rendered would have cost in the absence of suchcoverage."

(ii)  "Insurance with Other Insurers:  Ifthere be other valid coverage, not with this insurer, providing benefits forthe same loss on other than an expense incurred basis and of which this insurerhas not been given written notice prior to the occurrence or commencement ofloss, the only liability for such benefits under this policy shall be for suchproportion of the indemnities otherwise provided hereunder for such loss as thelike indemnities of which the insurer had notice (including the indemnities underthis policy) bear to the total amount of all the indemnities for such loss, andfor the return of such portion of the premium paid as shall exceed the pro rataportion for the indemnities thus determined."

(B)  If the provision set forth in subparagraph(A)(i) is included in a policy that also contains the provision set forth insubparagraph (A)(ii), there shall be added to the caption of the subparagraph(A)(i) provision the phrase, "expense incurred benefits".

(C)  The insurer may, at its option, include inthe provision set forth in subparagraph (A)(i) a definition of other validcoverage, approved as to form by the commissioner, which definition shall belimited in subject matter to coverage provided by organizations subject toregulation by insurance law or by insurance authorities of this State or anyother state or territory of the United States or any province of Canada, and byhospital or medical service organizations, and to any other coverage theinclusion of which may be approved by the commissioner.  In the absence of suchdefinition the term shall not include group insurance, automobile medicalpayment insurance, or coverage provided by hospital or medical serviceorganizations, union welfare plans, or employer or employee benefit organizations. For the purpose of applying the provision set forth in subparagraph (A)(i) withrespect to any insured, any amount of benefit provided for such insuredpursuant to any compulsory benefit statute (including any workers' compensationor employers' liability statute), whether provided by a governmental agency orotherwise, shall in all cases be deemed to be other valid coverage of which theinsurer has had notice.  In applying the provision set forth in subparagraph(A)(i), no third party liability coverage shall be included as other validcoverage.

(D)  If the provision set forth in subparagraph(A)(ii) is included in a policy that also contains the provision set forth insubparagraph (A)(i), there shall be added to the caption of the subparagraph(A)(ii) provision the phrase, "other benefits".

(E)  The insurer may, at its option, include inthe provision set forth in subparagraph (A)(ii) a definition of other validcoverage, approved as to form by the commissioner, which definition shall belimited in subject matter to coverage provided by organizations subject toregulation by insurance law or by insurance authorities of this State or anyother state or territory of the United States or any province of Canada, and toany other coverage the inclusion of which may be approved by the commissioner. In the absence of such definition the term shall not include group insurance,or benefits provided by union welfare plans or employer or employee benefitorganizations.  For the purpose of applying the provision set forth insubparagraph (A)(ii) with respect to any insured, any amount of benefitprovided for such insured pursuant to any compulsory benefit statute (includingany workers' compensation or employers' liability statute), whether provided bya governmental agency or otherwise, shall in all cases be deemed to be othervalid coverage of which the insurer has had notice.  In applying the provisionset forth in subparagraph (A)(ii), no third party liability coverage shall beincluded as other valid coverage.

(5)  (A)  "Relation of Earnings to Insurance: If the total monthly amount of loss of time benefits promised for the same lossunder all valid loss of time coverage upon the insured, whether payable on aweekly or monthly basis, shall exceed the monthly earnings of the insured atthe time disability commenced or the insured's average monthly earnings for theperiod of two years immediately preceding a disability for which claim is made,whichever is the greater, the insurer will be liable only for such proportionateamount of such benefits under this policy as the amount of such monthlyearnings or such average monthly earnings of the insured bears to the totalamount of monthly benefits for the same loss under all such coverage upon theinsured at the time such disability commences and for the return of such partof the premiums paid during such two years as shall exceed the pro rata amountof the premiums for the benefits actually paid hereunder; but this shall notoperate to reduce the total monthly amount of benefits payable under all suchcoverage upon the insured below the sum of $200 or the sum of the monthlybenefits specified in such coverages, whichever is the lesser, nor shall itoperate to reduce benefits other than those payable for loss of time."

(B)  The policy provision in subparagraph (A)may be inserted only in a policy which the insured has the right to continue inforce, subject to its terms by the timely payment of premiums until at leastage fifty or, in the case of a policy issued after age forty-four, for at leastfive years from its date of issue.

(C)  The insurer may, at its option, include inthe provision set forth in subparagraph (A) a definition of valid loss of timecoverage approved as to form by the commissioner, which definition shall belimited in subject matter to coverage provided by governmental agencies or byorganizations subject to regulation by insurance law or by insuranceauthorities of this State or any state, district, or territory of the UnitedStates or any province of Canada, or to any other coverage the inclusion ofwhich may be approved by the commissioner or any combination of suchcoverages.  In the absence of such definition such terms shall not include anycoverage provided for such insured pursuant to any compulsory benefit statute(including any workers' compensation or employers' liability statute), orbenefits provided by union welfare plans or by employer or employee benefitorganizations.

(6)  "Unpaid Premium:  Upon the payment of aclaim under this policy, any premium then due and unpaid or covered by any noteor written order may be deducted therefrom."

(7)  "Cancellation:  The insurer may cancel thispolicy at any time by written notice delivered to the insured, or mailed to theinsured's last address as shown by the records of the insurer, stating when,not less than five days thereafter, such cancellation shall be effective; andafter the policy has been continued beyond its original term the insured maycancel this policy at any time by written notice delivered or mailed to theinsurer, effective upon receipt or on such later date as may be specified insuch notice.  In the event of cancellation, the insurer will return promptlythe unearned portion of any premium paid.  If the insured cancels, the earnedpremium shall be computed by the use of the short-rate table last filed withthe state official having supervision of insurance in the state where theinsured resided when the policy was issued.  If the insurer cancels, the earnedpremium shall be computed pro rata.  Cancellation shall be without prejudice toany claim originating prior to the effective date of cancellation."

(8)  "Conformity with State Statutes:  Anyprovision of this policy which, on its effective date, is in conflict with thestatutes of the state in which the insured resides on such date is herebyamended to conform to the minimum requirements of such statutes."

(9)  "Illegal Occupation:  The insurer shall notbe liable for any loss to which a contributing cause was the insured's commissionof or attempt to commit a felony or to which a contributing cause was theinsured's being engaged in an illegal occupation."

(10)  "Intoxicants and Narcotics:  The insurershall not be liable for any loss sustained or contracted in consequence of theinsured's being intoxicated or under the influence of any narcotic unlessadministered on the advice of a physician." [L 1987, c 347, pt of §2; am L2002, c 155, §53; am L 2004, c 122, §32]