During the U.S. Supreme Court’s upcoming term, the court is scheduled to hear U.S. Airways v. McCutchen, 663 F.3d 671 (3d Cir. 2011). We have previously written about the issue of equitable doctrines in ERISA:
- ERISA! ERISA! ERISA! A Primer;
- Ninth Circuit Reduces ERISA Lien Rights (CGI v. Rose);
- ERISA Liens: What You Need to Know (includes original analysis of McCutchen); and,
- ERISA Liens: Greed Was Never a Good Idea.
Now that the Supreme Court has granted Certiorari and agreed to hear the appeal of US Airways v. McCutchen we are beginning to see Amicus briefs. As of September 13 we count six briefs filed so far.
ERISA and health insurance plans are arguing that the application of equitable doctrines harms other beneficiaries of theplan. They argue that ERISA Subrogation and reimbursement recovery flows to the benefit of the pool of insureds. They further argue this limits premium rate increases.
We disagree. Plaintiffs disagree. Plaintiffs’ attorneys disagree. And we think most insured individuals will disagree. We think it is clear that subrogated recoveries flow to the benefit of the ERISA plans. Those plans (United HealthCare, Humana, BCBS, etc.), their subrogation providers (Ingenix, ACS, etc.) and companies like US Airways receive a windfall. None of the recovery is returned to the insurance pool to help the insureds or to limit premium increases.
In its simplest terms, subrogation allows the health insurance to stand in the plaintiffs’ shoes and recover what they would not have paid but for the defendant’s negligence. But ERISA subrogation supposedly is not subjected to the same limits (comparative fault, policy limits, risk limitation through settlement) to which the plaintiff is subject. These are the bases for anti-ERISA arguments.
US Airways v. McCutchen should be decided in June or July of 2013.
If you need help reducing an ERISA lien please contact us. At Lien Resolution Services we can assist you with Medicare lien resolution, Medicaid lien resolution, ERISA liens, private insurance liens, and more.
Ryan J. Weiner Lien Resolution Services www.lienresolutionusa.com https://lienblog.wordpress.com firstname.lastname@example.org