Adam V. Russo | August 25, 2010
Coordination of Benefits Handbook
Victims of accidents in subrogation/reimbursement cases have emotional appeal when they argue that tort settlements are reduced without some consideration of the fact that they were not “made whole” or had their recoveries diminished by not requiring a recovering plan to share the legal fees they incurred in making the settlement. There can be cases where the amount of the tort settlement seems to include significant amounts to reimburse losses beyond actual medical expenses incurred by the plan participant and paid by the ERISA plan. In this case, the 11th Circuit upheld an earlier ruling allowing the plan to recover the full amount it paid to a participant who received a much larger settlement. The decision was unusual in the clarity of its explanation of why the subrogation was in fact equitable. The plan gained an advantage by becoming involved in the tort settlement early enough to ensure a separate and identifiable portion of the settlement was set aside. (more…)
Category: 11th, ERISA, Made Whole Rule, Stop Loss, Subrogation, Summary Plan Description |
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Adam V. Russo | May 12, 2010
O’Hara contends that, as a matter of equity and in order to effectuate ERISA’s policy of protecting plan beneficiaries, the make-whole rule must be applied because allowing Zurich to recoup the medical expenses it paid on his behalf unduly punishes him by requiring him to forfeit a substantial portion of the compensation he received for his other losses, including future wages and bodily integrity, and unjustly enriches Zurich. We disagree. (more…)
Category: 11th, ERISA, Federal Circuits, Made Whole Rule |
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Adam V. Russo | May 4, 2010
Colliers are in possession of the $ 70,000 and the fund is specifically identifiable and satisfying standard for relief under § 502(a)(3). The Court agreed that the Plan must be reimbursed.
Since the plan is a self-funded ERISA plan, federal law preempts Georgia’s anti-subrogation statute. In addition, the Plan had rejected the made whole doctrine in the plan document and the Court correctly stated that while the made whole doctrine is the default rule in the Eleventh Circuit, the Colliers fail to acknowledge that the doctrine can be expressly excluded.
Category: 11th, ERISA, Georgia, Made Whole Rule |
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Adam V. Russo | April 29, 2010
This case is extremely important as it stands for premise that the Plan expects premium payments and subro rights in exchange for paying benefits. Specifically, it states that subrogation defrays health insurance costs. The Defense made an argument stating that Zurich’s claim for reimbursement violates ERISA’s anti-discrimination provision but Court disagreed stating that plan language applied to all participants. This is a great case to read and cite as it brings us bases from many Circuits – even Shank. Enjoy!!
View the article here. Zurich Vs. O’Hara
Category: 11th, ERISA, Federal Circuits, Subrogation |
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Adam V. Russo | January 8, 2010
January 6, 2010 • HealthPlanLaw.com
While similar to the Butero test, Davila refines Butero by inquiring about the existence of a separate legal duty, which is not a consideration under Butero.
Moreover, a number of other circuits have recognized Davila’s two-part test as the proper test for complete preemption under ERISA . . . In accordance with the Supreme Court’s directive, we too apply Davila.
Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 2009 U.S. App. LEXIS 28773 (11th Cir. Fla. Dec. 30, 2009) (more…)
Category: 11th, ERISA, Federal Circuits, Health Care Legislation |
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Adam V. Russo | December 8, 2009
An employee’s spouse sued the insurer of her cancer insurance policy in state court after it refused to pay for medical treatment she had received. The insurer removed the case to federal court, arguing that her claim was preempted by ERISA. The spouse argued that the case belonged in state court because the policy fit within the regulatory safe harbor that excepts from ERISA certain voluntary insurance arrangements. At issue was whether the policy, which was offered through a cafeteria plan, fell outside the voluntary plan safe harbor because the employer had endorsed it. (more…)
Category: 11th, ERISA, Preemption |
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Adam V. Russo | November 18, 2009
Well drafted subrogation provisions will state that any allocation of tort settlement or judgments to reimburse non-medical losses – such as earnings lost – will not be binding on the plan. If that is stated, settlements or judgments won’t preclude the plan participant’s obligation to reimburse the plan. However, that’s not the necessarily the case when Medicare seeks to be reimbursed for the medical benefits that it paid. Indeed, contrary to the usual approach taken by privately sponsored health plans, the Medicare Secondary Payer (MSP) law on which Medicare’s right to reimbursement is based does not contain such a provision. (more…)
Category: 11th, Medicare |
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Adam V. Russo | May 13, 2009
The Ninth Circuit, in Daic v. Hawaii Pacific Health Group Plan for Employee of Hawaii Pacific Health, No. 06-17324, 2008 WL 3862074 (9th Cir. Aug. 13, 2008) analyzed whether MetLife, the insurer who administered the ERISA plan but was not a specifically names fiduciary, was nonetheless a plan fiduciary and whether, in light of Glenn the district court erred by inadequately considering MetLife’s structural conflict of interest. (more…)
Category: 11th, 9th, MetLife v. Glenn |
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Adam V. Russo | March 24, 2009
Since the Glenn decision, a number of circuits have had an opportunity to consider and apply the Glenn Court’s reassessment of ERISA’s standard of review.Roumeliote v. LTD Plan for Employees of Worthington Industries, 298 Fed. Appx. 472 (6th Cir. 9/11/2008).
This was the first circuit to apply Glenn since Glenn was a Sixth Circuit decision and the Sixth Circuit’s determination in that case was affirmed by the Supreme Court. The Sixth Circuit affirmed the district court’s decision that the claim administrator’s denial of benefits was not arbitrary. (more…)
Category: 11th, 4th, 6th, 9th |
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Adam V. Russo | July 23, 2008
Diamond Crystal Brands, Inc. v. Wallace, 531 F.Supp.2d 1366 (N.D. Ga.2008)
After the negligent medical care and consequential death of Deborah Hayes, the Estate and her daughter Tamara Hayes pursued a wrongful death claim against the hospital. In Georgia State Court plaintiffs settled for $900,000, of which $837,000 went to Tamara Hayes and $63,000 to the Estate of Deborah Hayes.
Prior to Deborah Hayes’s death, her employer, Diamond Crystal provided $261,863.58 in medical benefits related to the medical malpractice. After the settlement, Diamond Crystal sought reimbursement of claims paid. (more…)
Category: 11th, Georgia, Plan Language, Wrongful Death |
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Adam V. Russo | May 27, 2008
With the U.S. Supreme Court decision in Sereboff v. Mid Atlantic Medical Services, Inc., it became clear that ERISA plans can enforce their subrogation and/or reimbursement provisions by asserting a claim for a constructive trust or equitable lien against clearly identifiable tort settlement or judgment proceeds. In most instances, those proceeds end up either in the plan participant’s attorney’s escrow or trust accounts or are held by a court if the third party’s casualty insurer deposits the funds there. (more…)
Category: 11th |
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Adam V. Russo | January 22, 2008
An employee health and welfare plan appealed a Northern District of Georgia decision in favor of defendants: a minor, a conservator of the minor, and a bank, in its action seeking to enforce reimbursement provisions of its ERISA Plan. The insured settled a personal injury suit and received funds from a liable third party. The Plan, which had previously paid the minor insured’s medical expenses, included provisions in the Plan Document identifying funds paid by the Plan as separate from the insured’s assets, and asserting a trust and equitable lien over settlement proceeds.
The Eleventh Circuit Court of Appeals found that the Plan properly sought under ERISA § 502(a)(3) equitable restitution of a specifically identifiable fund in possession of defendants, since it asserted title and right to possession of the particular property, identified as being in the hands of the conservator. The money held in trust by the conservator had been identified as belonging in good conscience to the fiduciary by virtue of the plan’s terms, and the money could be clearly traced to a particular fund in defendants’ possession. The fact that the conservator held the funds as a third party did not defeat the fiduciary’s claim because the settlement funds were intact and constituted an identifiable res that could be restored to its rightful recipient. SEE ENTIRE CASE
Category: 11th, Minor's Compromise |
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