You should also be aware that the federal law of ERISA provides for the potential award of attorneys fees to a prevailing party. In Carpenters Health v. Vonderharr, 384 F.3d 667 (9th Cir. 2004, cert. denied 126 S. Ct. 729 (2005), the Ninth Circuit ruled that an ERISA beneficiary prevailing in an action for reimbursement brought by the plan was entitled to the “special circumstances” presumption in favor of an award of fees. In fact, the Vonderharr court reversed the district court’s decision denying attorneys fees to the Vonderharrs. The Ninth Circuit then awarded fees to the Vonderharrs’ counsel on the appeal.  If you read the 9th Circuit’s unpublished opinion in Great West v. Knudson (affirmed by Supreme Court at 534 U.S. 204 (2002), you will note that the court affirmed an award of $80,000 to the prevailing plan member just for fees in the trial court. In Providence Health Plan v. Bush, supra, the district court awarded attorneys fees of $48,000 for bringing the 12(b)(6) motion to dismiss which was granted on the basis of the make whole rule. Notably, an ERISA plan is entitled to no presumption in favor of fees even where it prevails and since the ability to pay is one element of the five Hummell v. Rykoff factors, they are rarely awarded to a plan. Aa a result, you could argue to the ERISA protected health plan, "were litigation to result in the instant case, it is likely that the Xs would be the prevailing parties on either the Vonderharr issue requiring wrongful conduct or the Sereboff title argument, drastically reducing the plan’s claim. In either event, the Xs would be entitled to their full attorneys fees under the special circumstances presumption."

Request for Humanitarian Waiver On Top of ERISA Attorneys' Fees Arguments


In addition to attorneys fees, you could argue the following request for your injured clients as follows: "Given the likelihood of a complete defense under the Ninth Circuit’s Vonderharr rule, and the minimal size of the plan’s claim after applying the Sereboff title requirement, we respectfully request that the plan waive its claim because of the severe degree of under-compensation of Ms. X. It would be pointless for the plan to engage in litigation in the hopes of recovering $X amount. We would appreciate your written response within 20 days of this letter."

Mark C. Blane is a San Diego Personal Injury Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm dedicated to representing families of people injured in personal injury accidents including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego, or Southern California, due to the negligence of another, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95.  However, it is free to all California residents, or those injured in an California accident.


Mark Blane
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Founder of The Law Offices of Mark Blane, APC
I've found that utilizing ERISA liens can ensure not only fair compensation for the attorney involved,but also higher levels of service for the clients.I make sure I look into them any time I'm working on health care cases
by ERISA Liens August 17, 2011 at 01:09 PM
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