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One of the keys to properly defending against an asserted subrogation or reimbursement claim from an ERISA plan is making requests to the plan administrator. One of the major responsibilities of the plan administrator, as to dealing with the providing of information to beneficiaries, is contained in 29 U.S.C. 1024(b)(4).
Reprinted with permission from Roger Baron
The 8th Circuit Court of Appeals handed down its decision in Treasurer, Trustees of Drury Industries v. Sean Goding, No. 11-2885. This is a situation where the ERISA plan doggedly pursued the law firm which had represented the ERISA beneficiary in securing a tort recovery.
The uncertainty that exists regarding a self-funded ERISA plan’s ability to refuse reduction of their claim based upon equitable principles can be used to increase your client’s net recovery. A gray area was created in ERSIA healthcare subrogation and reimbursement rights by the 11th Circuit’s April 2010 ruling in Zurich American Insurance Co. v. O’Hara.
In Ayers v. LINA, No. 6:08-cv-06287-AA, (D.Or. April 19, 2012), the court was adjudicating a dispute over LTD benefits under ERISA coverage. The court held “LINA cannot recover any overpaid amounts pursuant to 1132(a)(3) if Ayers can demonstrate that it was acting with unclean hands.” As to whether or not “unclean hands” exists, the court holds that there is a “genuine issue of material fact,” overruling both parties’ motions for summary judgment on the counterclaim.
On April 12th, the Florida Supreme Court ruled on the proposed amendment to rule 4-1.5 and rejected it. What does this mean for lien resolution outsourcing?
Reprinted with Permission from Roger Baron
The 5th Circuit handed down ACS Recovery Services, Inc. v. Griffin today, April 2, 2012. Mr. Griffin was seriously injured in an auto accident. The ERISA plan paid medical bills of $50,076.19. The plaintiff’s attorney secured a settlement of $294,439.82 and arranged for a structured settlement annuity “in an effort to avoid any equitable lien assertion” by the ERISA Plan. Mrs. Griffin received $40,000 for loss of consortium. The ERISA plan sued Mr. Griffin and his wife, as well as the trustee and the trust designated to receive the annuity payments. The trial court “dismissed the claims against all of the defendants.” This decision by the 5th Circuit affirms that dismissal.
Reprinted with permission from Roger Baron
“Subrogation on personal injury claims by a health insurer was universally prohibited by law when Congress enacted ERISA in 1974. Seizing upon the notion of ERISA preemption, ERISA plans and related insurers have manufactured the right of reimbursement (or subrogation) without regard to the impact on the victims.”
Although most litigation has centered on what qualifies as “appropriate equitable relief,” the U.S. Court of Appeals for the Third Circuit in US Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir. Pa. 2011), addressed whether such relief is limited by certain equitable defenses. While the Third Circuit’s approach may be considered novel (at least until adopted by other courts), it presently allows equitable principles to override express plan language when justified by the necessities of the particular case. For attorneys in other jurisdictions representing severely injured beneficiaries against self-funded ERISA liens with strong plan language, referencing the Third Circuit’s logic may prove beneficial.
Ingenix v. Ham, a Florida 2nd DCA opinion, applies 768.76(4) instead of the contract in a reimbursement action involving UnitedHealthcare (non-ERISA).