PI Attorneys: Don’t Forget ERISA Claims

Above The Law's Male ERISA Hottie Bruce Wolk

Since this page has been discussing potential exposure for the personal injury plaintiff’s attorney under the Medicare Secondary Payors Act, it seems a good time to remind readers of the similar potential exposure created by ERISA and other similar liens.  A recent Federal case out of the Sixth Circuit seems like a good starting point.  

In Longaberger Co. v. Kolt, 586 F.2d 459 (6th Cir. 2009), the Sixth Circuit upheld summary judgment in favor of a self-funded ERISA plan which would recover one-third of a six-figure lien from the insured’s personal injury attorney.  The important thing to remember from this case, which does a good job of explaining the current state of the law, is that (1) self-funded ERISA plans may be limited to equitable remedies, but those remedies have teeth, especially after Sereboff v. Atlantic Medical Services, Inc., 547 US 356 (2006); and (2) a plaintiff attorney ignores the ERISA lien at his or her peril. 

I will make no effort to explain the state of the law in this area.  I encourage you to read the above cited opinions for a clearer understanding of the law.  I further submit that you consider the same suggestions offered for dealing with the Medicare Secondary Payor Act  when dealing with potential ERISA reimbursement issues.

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