cmonfils | April 12, 2011
www.subrogation.org
Texas recently introduced a bill allowing recovery of attorney’s fees by a prevailing party when a trier of fact determines there has been an “abusive civil action”. An attorney may be held jointly and severally liable for litigation costs awarded, if they have a financial interest in the action. Financial Interest is defined as an attorney’s compensation for services being contingent in whole or in part on the outcome of the action. This bill would only apply when the amount in controversy is or exceeds $100,000.00. Worker’s compensation claims are excluded from the bill.
Thanks to William T. Sebesta, an attorney with Doyen Sebesta in Houston, Texas, for identifying this bill.
Category: Attorneys' Fees, Common Fund, Subrogation, Texas |
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cmonfils | March 18, 2011
www.healthplanlaw.com Roy Harmon III
March 15, 2011
It is well-established that ERISA plan participants and beneficiaries may assign their rights to their health care provider. Misic v. Bldg. Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1378-79 (9th Cir. 1986). As an assignee, the provider has standing “to assert the claims of his assignors.” Id. at 1379. A Plan may also prohibit the assignment of rights and benefits. Davidowitz v. Delta Dental Plan of California, Inc., 946 F.2d 1476 (9th Cir. 1991). Both the Braun and Rudolph Plans prohibit the assignment of benefits. (more…)
Category: 9th, Attorneys' Fees |
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cmonfils | February 2, 2011
www.healthplanlaw.com
January 20, 2011 •
Johnson Controls v. Flaherty, 2011 U.S. App. LEXIS 969 (11th Cir.) (January 18, 2011) (unpublished) presents a typical subrogation scenario. The plan brought suit under 29 U.S.C. § 1132(a)(3), for medical benefits that the employee benefits plan, Johnson Controls, Inc. Welfare Plan (”the Plan”), had paid resulting from a bicycle injury. The Defendant had successfully settled a personal injury case and recovered proceeds for the injury from a third party. (more…)
Category: Attorneys' Fees, Common Fund, ERISA, Subrogation |
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Adam V. Russo | September 7, 2010
Summary
Federal district court in N.C. favors recovery after lien is dissolved by attorney – Denton is injured and gets a $100,000 settlement, her attorney takes $33,800 of that and disburses the remainder to Denton with a warning that her share could be recovered by the plan. The plan paid $48,250. The plan sued Denton and her attorney to recover. The court awarded the $48,250, but the attorney was not liable just because he disbursed the proceeds; and the proceeds were not traceable in a way similar to what’s now required under Sereboff. The court contrasted this from the 6th Circuit holding in Longaberger Co. v. Kolt (2009), which allowed recovery from a contingency fee paid to an attorney. The court noted the settlement allowed for paying the attorney and the plan with some left over for the participant.
Click here to see the entire case
Category: 4th, 6th, Attorneys' Fees, North Carolina, Reimbursement |
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Adam V. Russo | September 1, 2010
SIIA, www.siia.org
By Thomas A. Croft, Esq.
I. The Supreme Court Clarifies ERISA Attorney Fee Provision
We have two reasons for reviewing Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010). First, it is the latest ERISA decision from the Supreme Court cases define ERISA jurisprudence, they cannot be ignored. Second, the case addresses an issue near and dear to our hearts – attorneys’ fees.
On its facts, Hardt is something of a plain vanilla disability case. Hardt was an executive assistant to the president of Dan River, Inc., a textile manufacturer. After being diagnosed with carpal tunnel syndrome, Hardt applied for long term disability (“LTD”) benefits. Her claim was denied by Reliance Standard Life Insurance Company (“Reliance”), Dan Rivers’ LTD insurer. On appeal, Reliance reversed itself in part and determined that Hardt was totally disabled from performing her current job, thus entitling her to 24 months of coverage. (more…)
Category: 8th, 9th, Attorneys' Fees, ERISA, Fiduciary, Summary Plan Description, Supreme Court |
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Adam V. Russo | August 25, 2010
Coordination of Benefits Handbook
The government has yet to sort out the conflicting interests involved in subrogation/reimbursement dispute. Because there will be no reform body directly creating subrogation/reimbursement rules, the matter remains one of balancing various laws. For instance, laws in many states limit plans’ ability to recover health expenses based on the “make-whole,” “collateral source” and “common fund” rules. States have an interest in: (1) keeping the cost of auto liability insurance low; (2) ensuring that wrongdoers pay full damages; and (3) making sure attorneys are paid for representing clients. These are at odds with the federal government’s goal of keeping the cost of health coverage reasonable. It remains to be seen if the federal government will try to resolve this through preemption of state laws beyond self-funded ERISA plans.
Category: Attorneys' Fees, ERISA, Made Whole Rule, Preemption, Subrogation |
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Adam V. Russo | August 25, 2010
Coordination of Benefits Handbook
In a case that does not involve a health plan subject to ERISA, a Florida appellate court ruled that a health plan’s reimbursement from the proceeds of a settlement of a medical malpractice case was limited to the amount paid by the plan less its pro-rata share of attorney’s fees incurred by the plaintiff. The case is Ingenix v. Ham, 2010 WL 1780012 (Fla. App., May 5, 2010). (more…)
Category: Attorneys' Fees, ERISA, Florida, Preemption, Subrogation |
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Adam V. Russo | June 28, 2010
NASP, www.subrogation.org
Florida attorneys and recovery specialists should be aware that the Florida Bar Association Board of Governors is looking to adopt a rule change to the fee limits that are placed on contingency fees that will allow attorneys who fight against subrogation liens to charge a fee separate from or in excess of the contingency fee caps found in the Rules of Professional Conduct. (more…)
Category: Attorneys' Fees, Florida, Subrogation |
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Adam V. Russo | June 8, 2010
www.laborlawyers.com
Even If Plaintiff Is Not Technically “Prevailing Party”
On May 24, 2010 the U. S. Supreme Court held that a party does not need to be a “prevailing party” in order to be eligible for an attorneys’ fees award under the Employee Retirement Income Security Act of 1974 (ERISA). In reaching this decision, the Court relied on the statutory language of the applicable statute, which does not include any “prevailing party” requirement, and noted that Congress is able to impose limitations on the availability of attorneys’ fees when it deems fit. Hardt v. Reliance Standard Life Insurance Company. (more…)
Category: Attorneys' Fees, ERISA, Supreme Court |
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Adam V. Russo | March 3, 2010
The New Hampshire House Judiciary Committee reviewed and recommended a bill recently pertaining to contract, Medicaid or statutory subrogation rights of subrogation for “”reimbursement of medical expenses” against plaintiff’s recovery. The proposed bill requires these subrogated entities to pay costs and attorney fees to the injured party “as justice requires”. The bill does not give any direction on how the court should divide the proceeds other than “as justice requires”. However, the bill does provide a cap and states the insurance carrier, medical provider, or the state shall not be awarded more than two thirds (2/3) of the amount claimed. The bill would apply to health, auto medical payments and worker’s compensation lines of coverage. The effective date of the bill if passed would be January 1st, 2011.
Category: Attorneys' Fees, New Hampshire, Subrogation |
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Adam V. Russo | November 16, 2009
Please see the following 6th Circuit Decision brought to our attention by Daran P. Keifer, Esq. of Kreiner & Peters Co. L.P.A. The decision highlights that funds do not need to be maintained in order for a plan to seek reimbursement and that the Plaintiff attorney is personally liable for the percentage of reimbursement equal to his attorney fees.
6th Circuit Decision
Category: 6th, Attorneys' Fees, Subrogation |
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Adam V. Russo | November 13, 2009
Wyoming’s House Bill sought to amend worker’s compensation statutes reducing subrogation recoveries for the injured party’s attorney’s fees. The bill ordered “Any recovery by the state shall be reduced pro rata for attorney fees and costs in the same proportion as the employee is liable for fees and costs.”
Category: Attorneys' Fees, Workers' Compensation, Wyoming |
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Adam V. Russo | November 13, 2009
Kentucky House Bill seeks to reduce worker’s compensation recoveries for attorney’s fees.
Category: Attorneys' Fees, Kentucky, Workers' Compensation |
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Adam V. Russo | November 13, 2007
The Texas Made-Whole Rule, adopted in Ortiz v. Great Southern Fire & Casualty Insurance Co., no longer applies to cases where the Plan disclaims the rule and requires full reimbursement in the plan document. 597 S.W.2d 342, (Tex. 1980). In the Ortiz case the insurance carrier relied upon arguments made in equity. The court held that health plans do not have an equitable right to recovery until the plan beneficiary is fully compensated. Id. (more…)
Category: Attorneys' Fees, ERISA, Made Whole Rule, Plan Language, Provider Reimbursement, Summary Plan Description, Texas |
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