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Steven J. Bruzonsky

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Steven J. Bruzonsky
917 E. San Angelo Ave.
Gilbert, AZ 85234
480-969-3003

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Please note that Attorney Bruzonsky has been doing this regular “Liens Corner” column since April 2006. His last “Liens Corner” article was for the November/December 2017 issue of The Advocate, having stepped down from this regular column, as he now works part-time (and is part-time retired) exclusively handling large subrogation/lien claims in very large personal injury and medical malpractice cases for other attorneys. However, attorney Bruzonsky may add notes to this website under the subject lien article headers from time to time. (Please keep in mind that this site contains general information for educational purposes only. It is not intended to provide legal advise, which can only come from a qualified attorney who is familiair with all the facts and circumstances of your specific case and relevant law.) 

 

 

2014-01: ERISA Liens Q & A (AzTLA Annual Liens Seminar Handout)

June 25th, 2016 11:54:48 am


                                            LAW OFFICE OF STEVEN J BRUZONSKY

                                                               917 E. SAN ANGELO AVE.

                                                                     GILBERT, AZ 85234

                                                  480-969-3003    • Fax: 1-866-295-6635

                                             

 

                   ARIZONA ASSOCIATION FOR JUSTICE

              ARIZONA TRIAL LAWYERS ASSOCIATION

 

                                                         Presents

 

                                          “ERISA LIENS Q & A””

 

                                    By Steven j. bruzonsky, esq.

 

                                                January 24, 2014

 

@2014 by Steven J. Bruzonsky, Esq.

 

 

A Brief History of  ERISA Subrogation/Lien Litigation in the

U.S. Supreme Court:

 

There have been many cases in federal courts involving employer ERISA health plans, and also employer ERISA disability plans, particularly employers seeking to enforce ERISA health plan  

lien/subrogation plan provisions and to obtain reimbursement from their insured’s personal injury claims settlements. Section 502(e)(1) of ERISA, 29 U.S.C. § 1132(e)(1), gives the federal district courts exclusive jurisdiction of civil actions under this subchapter brought by ... [a] fiduciary." Section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3),provides that a fiduciary may bring a civil action “to enjoin any act or practice which violates - - - the terms of the plan” or “to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce - - - the terms of the plan.”

 

FMC v. Holliday, 498 U.S. 52 (1990):

 

At that time,  the Holliday case made it clear that simply by identifying a plan as “ERISA” did not preclude the application of state law. The Court held: “ - - - (E)mployee benefit plans that are insured are subject to indirect state regulation. An insurance company that insures a plan remains an insurer for the purposes of state laws `purporting to regulate insurance` after  application of the deemer  clause [of ERISA]. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the state’s insurer.”

 

Prior to 2002, ERISA, as federal law, preempted  Arizona anti-subrogation case law, and an ERISA plan which had self-paid accident benefits could file a lawsuit in federal court to enforce the lien provision of its benefits plan. See United Food & Commercial Workers & Employers Arizona Health and Welfare Trust v. Pacyga, 801 F.2d 1157 (9th Cir. (Ariz.), 1986); and F.M.C. v. Holliday, 498 U.S. 52, 111 S.Ct. 403 (1990).

 

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708 (2002):

 

The Knudson case made it very difficult if not impossible to enforce ERISA lien claims in Arizona and the Ninth Circuit. In Knudson, plan provisions and a written subrogation agreement signed by the injured party required reimbursement from settlement. By the time suit was brought, the case was settled and settlement funds were already distributed by the attorney, and a Special Needs Trust had been set up under California law as part of the settlement. The U.S.

Supreme Court held that there was no federal court equitable jurisdiction under Section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3).

 

During the years immediately following  Knudson (2002), although some other federal courts interpreted Knudson narrowly to permit equitable federal court jurisdiction by ERISA plans against plan participants seeking reimbursement from specific funds such as settlement funds held in the attorney’s Trust Account, the Ninth Circuit interpreted Knudson broadly so that there was no federal court jurisdiction for such lawsuits, even though the funds were held in escrow or in an attorney’s trust account, Westaff (USA) Inc. v. Arce, 298 F.3d 1164 (C.A. 9, 2002); Great West v. Berlin, 45 Fed.Appx. 750, 2002 WL 2017076 (C.A.9, 200_); Great West v. Unger, 2002 WL 2012528 (D. Ariz.).

 

Sereboff  v. Mid Atlantic Medical Services, Inc.,547 U.S. 356, 126 S. Ct. 1869 (2006):

 

The “Acts of Third Parties” plan provision provided for a lien for accident-related medical benefits paid against the settlement, and that “[Mid-Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid-Atlantic] agrees in writing to a reduction.” The plan paid $74,869.37 medical benefits. The case was settled for $750,000.00 and the funds were distributed by the attorney to the Sereboffs. The plan filed suit in Federal District Court under Section 502(a)(3) of ERISA, seeking to collect from the Sereboffs the medical expenses, and also seeking a temporary restraining order and preliminary injunction requiring the couple to retain and set aside $74,869.37 of the settlement funds in an investment account until the court ruled and all appeals were exhausted. The District Court approved a stipulation by the parties under which the Sereboff’s agreed to preserve the $74,869.37 claimed by the ERISA plan in an investment account until the court ruled and all appeals were exhausted. The District Court ordered the Sereboffs to pay the plan $74,869.37, plus interest, with a deduction for the plan’s share of attorney’s fees and court costs. The Fourth Circuit Court of Appeals affirmed in relevant part. [Note that the express plan provisions provided for a prorated deduction for reasonable attorneys fees and costs incurred by

beneficiaries in securing the third-party payments. Mid Atlantic Medical Services, LLC v. Sereboff, 407 F.3d 212 (4th Cir., 2005).]

 

The U.S. Supreme Court (9-0) held that an ERISA plan’s action to collect medical expenses paid on behalf of the plan beneficiary who obtains a recovery from a third party in connection

with the injuries requiring the treatment paid for by the ERISA plan is “equitable relief” under 29 U.S.C. §502(a)(3); and the judgment of the Fourth Circuit was affirmed in relevant part.

 

The Court distinguished its holding in Knudson: One feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on “particular funds or property in the defendant’s possession.” That requirement wasn’t met in Knudson because the funds were not in Knudson’s possession but had been placed in a Special Needs Trust under California law; and in that case “Great-West did not seek to recover a particular fund from the defendant.”  “There was no need in Knudson to catalog all the circumstances in which equitable liens were available in equity; Great-West claimed a right of recovery in restitution, and the Court concluded only that equitable restitution was unavailable because the funds sought were not in Knudson’s possession.”

 

The Court states that there is no tracing requirement for the funds in this case. Citing Barnes v. Alexander, 232 U.S. 117 (1914), Justice Holmes recited “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as it gets a title to the thing.” Id., at 121. The Sereboffs’ ERISA plan provisions “specifically identified a particular fund, distinct from the Sereboff’s general assets”, and “This rule allowed them to “follow” a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the settlement fund] was identified,” and impose on that portion a constructive trust or equitable lien.” The Court stated that “Barnes confirms that no tracing requirement of the sort asserted by the Sereboffs applies to equitable liens by agreement or assignment.”

 

The Court held that the lower courts did not err in enforcing the third party liability provision of the ERISA plan (that the plan’s share of the recovery will not be reduced because the beneficiary has not received the full damages claimed, unless the plan agrees in writing to a reduction) and in refusing to apply the “made-whole doctrine” (that the plan has no right of reimbursement until the plaintiff has been made whole for his other injuries) and other limitations or defenses that apply to “truly equitable relief grounded in principles of subrogation”.

 

The Court states that the plan’s claim is not considered equitable (for the purpose of applying equitable defenses) because it is a subrogation claim established by agreement as in Barnes,supra,as opposed to a subrogation lien equitably imposed without agreement on the ground that funds ought to go to the insurer. The plan’s claim claim qualifies as an equitable remedy because it is indistinguishable from an action to enforce an equitable lien established by agreement The

Court in footnote 2 states that it declined to consider the “made-whole doctrine” because the issue wasn’t considered in the lower courts.

 

At the time, Sereboff was thought to significantly limit the holding in Knudson  to situations where the ERISA plan beneficiary does not have possession or control of the injury recovery (the funds were in a special needs trust in Knudson).

 

Cigna Corp. v. Amara, No. 09-804, 563 U.S. ___  , 130 S. Ct. 1754 (5-16-2011): 

 

Althoughthe dispute in this case involved retirement accounts in a pension plan, Cigna Corp. v. Amara, No. 09-804, 563 U.S. ___  , 130 S. Ct. 1754 (5-16-2011) is a landmark case in regard to ERISA plan liens, regardless of the fact that this case didn’t involve per se any lien.

 

In 1998, Cigna restructured and changed its pension plan for its employees when it converted its traditional defined benefit plan to a cash balance plan. Prior to the implementing the change, Cigna gave its employees a description and assurances that the new plan would “significantly enhance” and provide an “overall improvement” in retirement benefits. Plan participants filed a class action, claiming that Cigna’s notice of the changes was improper, as in some respects the new plan provided them with less generous benefits; and that the notice of the changes and Summary Plan Description (SPD) were misleading by providing assurances that the new plan would “significantly enhance” and provide an “overall improvement” in retirement benefits.

The district court “found that Cigna’s initial description of its new plan were “incomplete and innacurate”, failed to explain certain features that would save Cigna $10 million annually, and that Cigna “intentionally misled its employees.” The district court found that the conversion to a cash balance plan violated ERISA Sections 102 and 204(b) because the SPD and other communications intentionally misrepresented plan terms. Under the authority of  ERISA §502(a)(1)(B), which authorizes relief for the plan participant “to recover benefits due - - - under the terms of the plan”, the district court  reformed the plan to provide for the benefits that had been communicated, so that the higher benefits would be paid. The Second Circuit summarily affirmed the district court’s decision.

 

The U.S. Supreme Court  held that although  ERISA §502(a)(1)(B) did not give the district court authority to reform Cigna’s plan or to give relief to plan participants seeking to enforce misleading language in the SPD which is inconsistent with terms in the official Plan Document; that relief was authorized by ERISA §502(a)(3), which authorizes “other appropriate equitable relief” for violations of ERISA; and that the relevant standard of harm would depend on the equitable theory by which the district court provided relief. The U.S. Supreme discussed injunctions, equitable estoppel, reformation, surcharge, and monetary damages. The  U.S. Supreme unanimously vacated and remanded the case to the district court for further proceedings.

 

Although the Solicitor General contended that the more favorable descriptions could be enforced as  terms of the plan, the Court held otherwise, discussing how the  “written instrument” or plan document, required by ERISA, is adopted by the plan sponsor (the Plan  Administrator, or those officers/directors empowered to act on behalf of the plan itself);  how this plan document is the contractual terms of the plan itself;  that the SPDs are intended as clear, simple communication providing  basic summaries of plan terms; and that ERISA did not give the administrator (such as

a Third Party Administrator health insurer, or even the Plan Administrator) the power to set plan terms indirectly in the SPDs.

 

In this regard, the U.S. Supremestates the following at Cigna Corp. v. Amara, 130 S. Ct., at 1877 – 1878:

 

“The Solicitor General says that the District Court did enforce the plan's terms as written, adding that the "plan" includes the disclosures that constituted the summary plan descriptions. In otherwords, in the view of the Solicitor General, the terms of the summaries are terms of the plan.

 

Even if the District Court had viewed the summaries as plan "terms"(which it did not, see supra, at 1875-1876), however, we cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifications) necessarily may be enforced (under § 502(a)(1)(B)) as the terms of the plan itself. For one thing, it is difficult to square the Solicitor General's reading of the statute with ERISA § 102(a), the provision that obliges plan administrators to furnish summary plan descriptions. The syntax of that provision, requiring that participants and beneficiaries be advised of their rights and obligations "under the plan," suggests that the information about the plan provided by those disclosures is not itself part of the plan. See 29 U.S.C. § 1022(a). Nothing in § 502(a)(1)(B) (or, as far as we can tell, anywhere else) suggests the contrary.

 

Nor do we find it easy to square the Solicitor General's reading with the statute's division of authority between a plan's sponsor and the plan's administrator. The plan's sponsor (e.g., the employer), like a trust's settlor, creates the basic terms and conditions of the plan, executes a written instrument containing those terms and conditions, and provides in that instrument "a procedure" for making amendments. § 402, 29 U.S.C. § 1102. The plan's administrator, a trustee-like fiduciary, manages the plan, follows its terms in doing so, and provides participants with the summary documents that describe the plan (and modifications) in readily understandable form. §§ 3(21)(A), 101(a), 102, 104, 29 U.S.C. §§ 1002(21)(A), 1021(a), 1022, 1024 (2006 ed. and Supp. III). Here, the District Court found that the same entity, CIGNA, filled both roles. See 534 F.Supp.2d, at 331. But that is not always the case. Regardless, we have found that ERISA carefully distinguishes these roles. See, e.g., Varity Corp., 516 U.S., at 498, 116 S.Ct. 1065. And we have no reason to believe that the statute intends to mix the responsibilities by giving the administrator the power to set plan terms indirectly by including them in the summary plan descriptions. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 81-85, 115 S.Ct. 1223,131 L.Ed.2d 94 (1995).

 

Finally, we find it difficult to reconcile the Solicitor General's interpretation with the basic summary plan description objective: clear, simple communication. See §§ 2(a), 102(a), 29 U.S.C. § 1001(a), 1022(a) (2006 ed.). To make the language of a plan summary legally binding could well lead plan administrators to sacrifice simplicity and comprehensibility in order to describe plan terms in the language of lawyers. Consider the difference between a will and the summary of a will or between a property deed and its summary. Consider, too, the length of Part I of this opinion, and then consider how much longer Part I would have to be if we had to include all the qualifications and nuances that a plan drafter might have found important and feared to omit lest they lose all legal significance. The District Court's opinions take up 109 pages of the Federal Supplement. None of this is to say that plan administrators can avoid providing complete and accurate summaries of plan terms in the manner required by ERISA and its implementing

regulations. But we fear that the Solicitor General's rule might bring about complexity that would defeat the fundamental purpose of the summaries.”

 

For these reasons taken together we conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of § 502(a)(1)(B). - - -.”  Cigna Corp. v. Amara, 130 S. Ct., at 1877 – 1878:

 

U.S. Airways v. McCutchen, ___U.S. ___, ___ S.Ct. ___ (4-16-2013):

 

The U.S. Supreme Court reversed the Third Circuit’s decision in U.S. Airways v. McCutchen, 663 F.3d 671 (3RD Cir., 2011), and abrogates the Ninth Circuit’s similar decision in CGI Technologies and Solutions, Inc. v. Rose,  683 F.3d 1113 (2012). Both of these decisions required that the district court fashion “appropriate equitable relief” in ERISA lien cases brought by the ERISA plan fiduciary under § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3), seeking reimbursement from their insured’s personal injury settlement.

The ERISA participant, McCutchen was “grievously injured” in a car accident, after surviving emergency surgery, requiring months of physical therapy and a hip replacement. Due to multiple injured claimants and one wrongful death, McCutchen settled with the adverse driver’s liability insurance for $10,000, and also obtained his $100,000 Uninsured Motorist policy limits, for a total of $110,000. After paying a 40% contingency attorneys’ fee and expenses, his recovery was less than $66,000. His attorney held $41,500.00 in Trust (after reducing the lien for procurement costs), and the ERISA plan claimed a constructive trust or equitable lien on the $41,500 held in Trust, and sought the remaining $25,366.00 personally from McCutchen. The district court granted summary judgment for the ERISA plan for the full amount of the claimed lien of $66,866, requiring  McCutchen to sign over the $41,500 held inTrust,  and requiring him to pay the remaining $25,366 from his own funds.    

 

The Third Circuit stated that it considered the question that the U.S. Supreme Court in Sereboff (2006) left open, whether ERISA § 502(a)(3)’s requirement that equitable relief be “appropriate” means that an ERISA plan fiduciary, like U.S. Airways in this case, is limited in its recovery from a plan beneficiary, like McCutchen in this case, by the equitable defense and principles that were “typically available in equity”. Or put another way, whether equitable principles limit the scope of an ERISA plan administrator's right to reimbursement as a question of whether federal common law can override the express language of ERISA benefit plans.

 

The Third Circuit three judge panel unanimously vacated the district court’s order, which had required full payment of the U.S. Airways ERISA health plan lien, and remanded the case for the district court to fashion “appropriate equitable relief”  for U.S. Airways, because  under

§ 502(a)(3) of ERISA U.S. Airways claim for reimbursement is subject to “equitable limitations”.

 

InU.S. Airways v. McCutchen:

(1) The U.S. Supreme Court (9-0) reversed the Third Circuit, holding that equitable principles, such as the made whole doctrine, do not override clear terms of an ERISA plan requiring reimbursement, as the ERISA plan terms control because the terms created an equitable lien by agreement; and that the plan in McCutchen clearly required reimbursement regardless of whether the member was receiving a double recovery such that the made-whole doctrine does not apply.

McCutchen contended that U.S. Airways could recoup no more than the insured’s “double recovery”, the amount that the insured had received from the third party to compensate for the same loss covered by the health insurance, and that rule would limit U.S. Airways’ reimbursement to the share of McCutchen’s settlements paying for medical expenses, and McCutchen would keep the rest, e.g., damages for loss of future earnings or pain and suffering.

“If the agreement governs, the agreement governs - - -The result we reach, based upon the historical analysis our prior cases prescribe, fits lock and key with ERISA’s focus on what a plan provides. - - -  The plan, in short,, is at the center of ERISA. And precluding McCutchen’s equitable defenses from overriding plain contract terms helps it to remain there.” (slip opinion, pages 10-11)     

“The section under which this suit is brought “does not, after all, authorize ‘appropriate equitable relief ’ at large,” Mertens, 508 U. S., at 253 (quoting §1132(a)(3)); rather, it countenances only such relief as will enforce “the terms of the plan” or the statute, §1132(a)(3) (emphasis added). That limitation reflects ERISA’s principal function: to “protect contractually defined benefits.” Massachusetts Mut. Life Ins. Co. v. Rus­sell, 473 U. S. 134, 148 (1985). The statutory scheme, we have often noted, “is built around reliance on the face of written plan documents.” Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995). “Every employee benefit plan shall be established and maintained pursuant to a written instrument,” §1102(a)(1), and an administrator must act “in accordance with the documents and instruments governing the plan” insofar as they accord with the statute, §1104(a)(1)(D). The plan, in short, is at the center of ERISA. And precluding McCutchen’s equitable defenses from overriding plain contract terms helps it to remain there. (slip opinion, page 11) 

 

“ - - - in an action brought under §502(a)(3) based on an equitable lien by agreement, the           terms of the ERISA plan govern. Neither general principles of unjust enrichment nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules—can override the applicable contract. We therefore reject the Third Circuit’s decision.” (slip opinion, pages 16-17)  

 

The U.S. Supreme Court discusses that they rejected a similar claim in Sereboff  v. Mid Atlantic Medical Services, Inc.,547 U.S. 356, 126 S. Ct. 1869 (2006). In Sereboff, the Sereboffs contended that a variant of the double-recovery rule, called the make-whole doctrine, trumpted the plan’s terms. The Court states that in both Sereboff and McCutchen, the ERISA plans seek

 

           “to enforce the modern-day equivalent of an “equitable lien by agreement.” And that kind

           of lien- -as its name announces—both arises from and serves to carry out a contract’s     

           provisions. - - - So enforcing the lien means holding the parties to their mutual promises.

           - - - Conversely, it means declining to apply rules—even if they would be “equitable” in a  

           contract’s absence—at odds with the parties’ expresses commitments. McCutchen

           therefore cannot rely on theories of unjust enrichment to defeat US Airways’ appeal to the

           plan’s clear terms. Those principles, as we said in Sereboff, are “beside the point” when

           parties demand what they bargained for in a valid agreement. - - - In those circumstances,

           hewing to the parties’ exchange yields “appropriate” as well as “equitable” relief.”

           (slip opinion, pages 8-9)

 

Note that both Sereboff and McCutchenleave open the question of whether equitable defenses may be applied if the plan language only speaks of “subrogation”, without separately granting a “right of reimbursement”. The Court discusses in footnote 6 that “U.S. Airways suggested at oral argument that McCutchen’s case would get a lot stronger if the plan here spoke only of subrogation, without separately granting a right of reimbursement”, and that the Court “need not consider that question because US Airways seeks to enforce a reimbursement provision, of the same kind we considered in Sereboff.” (slip opinion, page 8)

 

(2) However, the U.S. Supreme Court (5-4) also held that the plan language in McCutchen was not clear regarding the common fund doctrine, and that in the absence of clear language, the court may apply equitable principles to “fill the gap” when the plan language is silent or ambiguous; and the case was remanded to the district court to determine the amount of attorney fee reduction.           

           “ - - - if US Airways wished to depart from the well-established common-fund rule, it had 

           to draft its contract to say so—and here it did not.” (slip opinion, page 12) 

 

           “But second, the common-fund rule informs interpretation of US Airways’ reimbursement

            provision. Because that term does not advert to the costs of recovery, it is properly read to  

            retain the common-fund doctrine.” (slip opinion, page 17)       

 

(3) The U.S. Supreme Court clearly reiterate that the SPDs do not themselves constitute the terms of the ERISA plan, and that the contractual plan terms are set forth in the official “written instrument” adopted by authorized plan officials.

 

In McCutchen,the U.S. Supreme Court does not consider whether the SPD’s subrogation provision is not legally enforceable because there is no official “written instrument” or plan document with a subrogation provision (and no document signed by authorized plan officials incorporating by reference the SPD and its subrogation provision as part of the “written instrument” required by ERISA) because this issue wasn’t raised and briefed in the lower courts. However, the U.S. Supreme Court clearly reiterates that the SPDs are only “communication” with plan participants summarizing plan terms, that the only the official “written instrument”, adopted by authorized plan officials, is the contract between the ERISA plan and its plan participants. 

 

“1We have made clear that the statements in a summary plan description “communicat[e] with beneficiaries about the plan, but . . . do not themselves constitute the terms of the plan.” CIGNA Corp. v. Amara, 563 U. S. ___, ___ (2011) (slip op., at 15). Nonetheless, the parties litigated this case, and both lower courts decided it, based solely on the language quoted above. See 663 F. 3d 671, 673 (CA3 2011); App. to Pet. for Cert. 26a. Only in this Court, in response to a request from the Solicitor General, did the plan itself come to light. See Letter from Matthew W. H. Wessler to William K. Suter, Clerk of Court (Nov. 19,2012) (available in Clerk of Court’s case file). That is too late to affect what happens here: Because everyone in this case has treated the language from the summary description as though it came from the plan, we do so as well.” (footnote 1, slip opinion, page 3)

 

The Court further discusses the “written instrument” vs SPD issue by stating that:

 

“The section under which this suit is brought “does not, after all, authorize ‘appropriate equitable relief ’ at large,” Mertens, 508 U. S., at 253 (quoting §1132(a)(3)); rather, it countenances only such relief as will enforce “the terms of the plan” or the statute, §1132(a)(3) (emphasis added). That limitation reflects ERISA’s principal function: to “protect contractually defined benefits.” Massachusetts Mut. Life Ins. Co. v. Rus­sell, 473 U. S. 134, 148 (1985). The statutory scheme, we have often noted, “is built around reliance on the face of written plan documents.” Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995). “Every employee benefit plan shall be established and maintained pursuant to a written instrument,” §1102(a)(1), and an administrator must act “in accordance with the documents and instruments governing the plan” insofar as they accord with the statute, §1104(a)(1)(D). The plan, in short, is at the center of ERISA. And precluding McCutchen’s equitable defenses from overriding plain contract terms helps it to remain there. (slip opinion, page 11)

 

 

Heimeshoff v Hartford Life & Accident Insurance Co., No. 12-729 (12-16-2013):

 

The U.S. Supreme  Court held that the statute of limitations period stated in the Plan’s long term disability policy was applicable, and the Court affirmed the Second Circuit’s affirming of the district court’s dismissal of the case. Rec­ognizing that ERISA does not provide a statute of limita­tions for actions under §502(a)(1)(B), the court explained that the limitations period provided by the most nearly analogous state statute applies. “Unless the limitations period is unreasonably short or there is a “controlling statute to the contrary,” - - - the Plan’s limitations provision must be given effect. “ Under Connecticut law, the Plan was permitted to specify a limitations period expiring “[not] less than one year from the time when the loss insured against occurs.” The long term disability plan required that the employee file a lawsuit “within three years after “proof of loss” is due”; and the employee failed to file the lawsuit within this time.  Note that the Court initially mentions that this contractual statute of limitations period is set forth in the insurance policy, and the Court thereafter simply refers to the ERISA “plan” as containing this contractual statute of limitations period.  There was no discussion of whether or not the contractual statute of limitations period was set forth or incorporated by reference in the official plan document(s) adopted by authorized plan officials.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                    DOCUMENT REQUEST TO EMPLOYER

                                             ERISA PLAN ADMINISTRATOR

 

(Date)                                                             

                                                                       CERTIFIED MAIL: Return Receipt Requested

 

(Name of Plan Administrator – should be set forth in SPD and/or Form 5500)

Plan Administrator for __________ Employee Benefit (Including Medical, Short and/or Long

     Term Disability) Plan

Street Address

City, State, Zip Code

 

 

Re:     Our Client/Your Plan Participant or Beneficiary

                (In Care of Our Law Firm):

           Employee:

           Employer:

           Client’s DOB:

 

Dear Plan Administrator for __________ Employee Benefit (Including Medical) Plan:

 

Pursuant to my right as a plan participant or beneficiary of the above employer’s employee benefits (including medical) plan, I respectfully request copies of the below listed plan documents.

 

Please address any questions or follow up regarding this document request to my attorney:

(Name, address, phone, fax and email of attorney.)

 

Enclosed is an Authorization, which I have signed, directing you to provide the below requested plan documents to me in care of my above referenced attorney.

 

I am submitting this ERISA plan document request for the following reason: _______________, a subrogation collection company, on behalf of _________, the Third Party Administrator (TPA) for my employer’s ERISA healthplan, is asserting a lien against the settlement of my personal injury claim related to an accident on _____________. My attorney needs to review plan documents to advise us and negotiate as appropriate the ERISA healthplan lien claims.

 

ERISA (Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq),   at

29 U.S.C. §1024(b)(4), provides that “the administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract or other instruments under which the plan is established or operated.” Failure to provide the requested documents within thirty days is subject to a $110.00 per day penalty for each day of noncompliance. 29 U.S.C.  §1132(c)(1)(B); 29 C.F.R. § 2575.502c-1; See Final Rule Relating to Adjustment of Civil Monetary Penalties, 68 Fed.Reg. 2875-76 (Jan. 22, 2003).

 

I respectfully request that the above employer’s ERISA plan, including the above employer’s Medical Plan, provide to me,in care of my above referenced attorney, the below described documents issued effective for and during each plan year from January 1, ____ (insert plan year in which accident/incident occurred) to __________ (this date is either the last date that the Plan provided health benefits, including any under COBRA, or the last date that the client incurred accident or incident-related medical expenses, whichever occurred earlier).

 

1. The Summary Plan Descriptions (SPDs) for the plan’s various employee benefit plans, including but not limited to the medical, short and long terms disability plans and their subrogation and/or lien provisions. 

 

Please provide all such documents which are legally effective as of ________ to present, even if signed or enacted prior to that date.

 

2. The “Written Instrument” (sometimes referred to as “Plan Document”, “Master Plan”, or “General Plan”) under which this ERISA employee benefit  plan is established, including but not limited to the medical, short and long term disability plans subrogation and/or lien provisions. If the “Written Instrument” includes “Wrap” provisions, which incorporate by reference other plan documents, including but not limited to the medical, short and long terms disability plans subrogation and/or lien provisions, then please be sure to provide both the “Wrap” document and the applicable documents which are “wrapped” or incorporated by reference into the “Written Instrument”. (Cigna Corp. v. Amara, No. 09-804, 563 U.S. _____ (5-16-2011) holds that the “Written Instrument” or “Plan Document” is the binding contract between the employer and its employees/insureds).

 

Please provide all such documents which are legally effective as of ________ to present, even if signed or enacted prior to that date.

 

3. Amendments to the “Written Instrument” or “Plan Document”, including but not limited to the medical plan subrogation and/or lien provisions. 

 

Please provide all such documents which are legally effective as of ________ to present, even if signed or enacted prior to that date.

 

4.  The Summary of Material Modifications (SMM) statements, including but not limited to the medical plan subrogation and/or lien provisions. (The SMM statements inform participants and beneficiaries of changes to the plan or to the information required to be in the SPD).

 

Please provide all such documents which are legally effective as of ________ to present, even if signed or enacted prior to that date.

 

5.  Copies of all of the above employer’s ERISA plan contracts including, but not limited to: Insurance contracts including but not limited to medical, short and long term disability; medical Stop Loss Contracts (including disclosure of at what point the medical Stop Loss Insurance started or would have started paying my medical benefits individual and aggregate); Health Insurance Contracts; Insurance Intermediary Services Contracts; and Administrative Services Contracts related to the above employer’s Medical Plan serving the state or region of myself as plan participant or beneficiary.

 

Please provide all such documents which are legally effective as of ________ to present, even if signed or enacted prior to that date.

 

6.  If any medical benefits by the employer’s healthplan or otherwise were provided under

the Consolidated Omnibus Budget Reconciliation Act (COBRA), please provide the COBRA application and acceptance documents.

 

7.  The Form 5500(s), including all attached schedules and attachments, filed with the U.S. Department of Labor.

 

8.  If my health or disability benefits are provided by a multiple employer or union plan or trust: Please provide the determination by the U.S. Secretary of Labor that the above employer’s Medical Plan is established or maintained pursuant to a collective bargaining agreement. Also, please provide the Plan’s complete last filed Form M-1 with each and every attachment filed along with the Form M-1.

 

Again, please provide the above requested plan documents to me in care of my above-referenced attorney. It is preferred if you can email the requested plan documents to my above referenced attorney.

 

Thank you for your courtesy and assistance.

 

Very truly yours,

 

___________________________

Attorney _______________, for

__________________,

Plan Participant or Beneficiary

 

cc:  ERISA Authorization signed by Plan Participant or Beneficiary



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