In Board of Trustees v. Hill, 2008 U.S. Dist. LEXIS 96239 (N.D. Cal. Nov. 25, 2008), the Court held that plan language establishing priority of payment – without specifically disclaiming the make whole rule – was sufficient to disclaim the concept. In ruling that not specific make whole disclaiming language was sufficient to overcome the make whole rule under Barnes v. Independent Automobile Dealers, the key case on this issue in the Ninth Circuit, the Court held that the provision as a whole communicates that the Plan intended its right to settlement proceeds to be given first priority. The Court stated that there was no need to resort to the gap-filling make-whole doctrine to determine the priority that should be given to the lien.

This is the first post Barnes decision within the Ninth Circuit to hold that priority language without specifically disclaiming the make whole rule is enough to warrant a 100% recovery.

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This entry was posted by Adam V. Russo on Thursday, April 9th, 2009 at 9:38 am and is filed under 9th, Made Whole Rule. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.