The decision by SCOTUS yesterday in Sereboff in my view makes the job even more difficult for lawyers who work with injured consumers.
A few comments:
Prior to settlement, my office always tries to negotiate with the health insurer or its agent. Most insurers now use recovery services such as Rawlings, and I do find it is easier to settle with them.
The Sereboff decision refers to "identifiable funds" in the possession of the beneficiary. Should any settlement check be made payable to the attorney and client, and thus not be considered solely identifiable to the plan beneficiary?
In the opinion Roberts declined to consider that the injured claimants could raise equitable defenses to the claim of lien, such as the made whole doctrine because “this distinct assertion” wasn’t raised in the lower court. I face this issue on catastrophic injuries with limited insurance.
It may that ATLA’s amicus brief may give you guidance in the event that suit is filed against your client. ATLA encouraged the Court to consider a theory of “Equitable Reimbursement” which would also include provision for payment of attorneys fees and costs.
If you have thoughts about how you may handle ERISA claims in the post Sereboff world, drop me a note.
