Okay, I gave you a general answer to the "make whole doctrine" under California state law protection.

To answer your question about using it as a defense, please see as follows: 
Make whole is still a complete defense to a health plan subrogation or reimbursement claim under both California state law and ERISA (federal law), unless it is expressly waived in the insurance contract (provision). Express waivers of the defense are enforceable. Bear in mind that several large health plans (i.e. Health Net & Pacific Care) generally do not waive make whole in their subrogation provisions.  Those same health plans are heavily capitated and purport to assign the right to balance bill to their providers. Providers are normally subject to the make whole defense because they are usually creditors.  However, in the case of providers taking the right to balance bill by assignment from the health plan, providers subject themselves to all defenses that the insured had against the health plan, including the make whole defense.

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.


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