This is the revision to my standard letter regarding ERISA in light of Sereboff. The ATLA CLE may yield more information next week:
This acknowledges receipt of your letter informing of a potential subrogation or right of reimbursement regarding the contract of health insurance between our client and yours.
Please provide me with a copy of the plan summary as well as the express 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, and whether such claim(s) may be based on Section 502(a) of E.R.I.S.A.
At this time, we acknowledge your correspondence and potential claim. 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.
First: I ask for written documentation from the Health Plan that confirms any right to make a claim on behalf of the Plan.
Second: 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 have made a request/demand for information and reimbursement and I seek documentation that supports such a claim as it relates to the contract for health benefits.
Third: I consider your company a fiduciary of the plan. If you disagree, please let me know why, doing so in writing.
My obligation in my contract 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 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 or any insurer.
I may assert the common fund doctrine at some point relative to the claim you make. 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. 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.
I have read the Sereboff decision. As you know, in Sereboff a fiduciary made claims against a participant for reimbursement of plan-paid medical expenses. My client expressly reserves the right to advance any own claims he may have against the plan fiduciary.
Is it this Firm’s conclusion that the Plan may impose a constructive trust or equitable lien only on that specific portion of the settlement that was equal to the amount of benefits paid, as opposed to the entire settlement funds. If you disagree with this conclusion, please explain why in writing.
Finally, 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. If it is your position that either our law firm or the plan participant is required by contract to update your or the Plan, please provide me with the language on that point.
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. I must have those documents no later than thirty days from the date of receipt of this letter.