Wednesday, December 14, 2005

My E.R.I.S.A. Letter of Rep.

In my office we receive on personal injury cases a typical "Notice" letter from either a health insurer of its collections agency. Unfortunately it is typically the collection agent (such as Rawlings, HRI, etc.) that sends computer generated letters each month.

As such, we send out this letter - if you can use it go ahead!


This acknowledges receipt of your letter informing of a potential subrogation claim or right of reimbursement regarding the contract of health insurance between our client and yours. I request that you provide us with a copy of the plan summary as well as the language that allows you, as the agent for the fiduciary health insurer in this instance, to make a subrogation or right of reimbursement claim. Please inform me in writing if it is your intention to assert subrogation or a right of reimbursement. I must have compliance with this request within thirty days of the date of this letter.

At this time, I acknowledge your correspondence and the potential claim asserted. Please note, however, that I cannot make a determination as to the validity of the fiduciary’s right to recover–if any– unless or until a copy of the plan is provided.

Please do not make the mistake of responding to this letter by stating that your entity is not the plan administrator and my request for a copy of the relevant documents is to be made to "The Plan." You are clearly acting as an agent for the health insurer. You are making a request/demand for information and reimbursement and I am asking for documentation to support such a claim as it relates to the contract for health benefits.

I consider your company a fiduciary of the plan. If you disagree, please let me know why - doing so in writing.

My obligation rests solely with my client, a person injured through no fault of his own. As of the date of this letter, there is no recovery of any nature. When or if there is a potential for recovery, I will consult my client. I will not provide you with updates of her treatment or her care. Do not contact my client. If the client agrees, I will be happy to contact you once my client’s care has ended and if or when an offer is made by the at fault party.

I may assert the common fund doctrine at some point. Please inform me if you intend to take the position that the common fund doctrine does not apply. Of course, I request that if your company takes such a position that you support it in writing and quote all relevant state or decisional law that applies. It is our firm’s legal conclusion that if the common fund doctrine applies, it does so regardless of the settlement offer(s) ultimately made.

Unless or until you are informed in writing that our legal representation has come to an end at any point, always know that we are the insured’s attorneys.

Feel free to call me if you wish further explanation. I do need the documentation requested so that I may fully explain to my client the nature and validity of the claim asserted.