PENNSYLVANIA ASSOCIATION FOR JUSTICE ( PaJ ) LIENS AND SUBROGATION - - PowerPoint PPT Presentation

PHILADELPHIA

PENNSYLVANIA ASSOCIATION FOR JUSTICE (“PaJ”) LIENS AND SUBROGATION ERISA LIENS 2014

Scott B. Cooper, Esquire

SCHMIDT KRAMER P.C. 209 State Street Harrisburg, PA 17101 717-888-8888 or 717-232-6300 scooper@schmidtkramer.com Presentation will be posted at www.schmidtkramer.com AV Assistance provided by Precise, Inc.

BC/BS TRAP

Get card at inception of case Do not automatically assume state plan Send some type of letter asking if subrogation Even if they assert the plan they still have to have it in plan or be allowed under state law (i.e. PEBTF)

ERISA

 Generally will pre-empt in auto and med

mal so apply in every case

 Request form 5500  Request Summary Plan Description AND

Plan in effect at the time of payment

 29 U.S.C. Section 1132  ***Cigna v. Amara, -- U.S. --, 131 S.Ct.

1866 (2011)

July 15, 2010 Healthcare Recoveries P.O. Box 34060 Louisville, KY 40232 Re: Your Insured: Our Client: Claim No.: Date of Loss: Dear Mr. : I am following-up on our office’s correspondence directed to you on April 13, 2010, as well as a voicemail message left for you by ------------, Esquire, of my office, on May 25, 2010 at 11:19 a.m., Eastern Standard Time. Our office has not received any response to either the letter or the telephone call regarding this matter, and we are again requesting, pursuant to 29 U.S.C. § 1132, the Summary Plan Description, Plan and Form 5500, which was in effect on the date of this accident, December 29, 2008. I am noting that the response to Mr. ------’s letter for the same information was not provided within thirty (30) days from his April 13, 2010 letter, and that, as of May 13, 2010, daily fines may be imposed upon the Plan for not complying with the request. If your office is still going to be asserting a claim for subrogation/reimbursement as a result of this incident, please confirm this in writing

• immediately. Otherwise, we are going to assume that this is a mistake and that the Plan is not entitled to any reimbursement for this matter.

Thank you for your prompt attention. Very truly yours, SCHMIDT KRAMER PC Scott B. Cooper Attorney at Law SBC/tmr Cc:

Attorney Fees

 Read SPD  Bollman Hat v. Root  No Common Fund  BUT SEE US Airways v. McCutchen

Does it Apply to your case

 Read SPD  “any claims”  “any third party claims”  “any claims against a party or insurance

company”

 Reimbursement form

Stop Loss

Still entitled to assert claims Bill Gray v. Gourley

Does Insurance Company Need to Be Concerned?

No, see Bill Gray

Did the Plan Meet its Requirements/Can you Apportion?

 Mills v. London Grove  Reimbursement Agreement

Minor’s Claim

 Polan case

Federal Employee Comp.

 5 U.S.C. Section 8101  Absolute right to reimbursement  Employee must receive at least 1/5th of

recovery 5 U.S.C. Section 8132

 Can Deduct attys fees and costs  Consider apportioning to loss of

consortium

PEBTF

 Relinquished ERISA status Jan. 1, 1998

Legal Issues

 Can you plead, prove and recover?  If yes, what can be plead, proven and

recovered?

 See Crozer-Chester case

Thank you for coming!