You an use the following arguments to help negotiate down your injured client's ERISA protected health plan:

"The third failing of the SPD’s (Summary Plan Description) language is that whoever drafted the subrogation/reimbursement provision purported to eliminate all equitable defenses that would otherwise exist under the law, such as common fund and the make whole doctrine. The stripping of equitable defenses makes it completely clear that any action by the plan to enforce the subrogation provision is an action at law for breach of contract. This argument is bolstered by the subrogation provision purporting to impose personal liability on the member. Pursuant to ERISA, a plan can only sue a participant for equitable relief to enforce the terms of the plan or the terms of ERISA. See 29 USC 1132(a)(3). A plan may not sue a participant for breach of contract. See Great West v. Knudson, 534 U.S. 204 (2002). Neither ERISA nor common law provides for subrogation of health plan benefits. Consequently, by removing all equitable defenses, the drafter of the plan is clearly framing any action to enforce the provision as an action at law for breach of contract. No such action is permitted and may be dismissed pursuant to a 12(b)(6) motion."

You can continue on with the following argument for your injured client too: 

"Plaintiff respectfully submits that the instant provision, deliberately stripping all possible equitable defenses from a claim that is required to be equitable in nature, renders it inequitable as a matter of law. It is a well known principle of equitable jurisprudence that “He who seeks equity must do equity.” A court will not grant equitable relief to a plaintiff unless he acknowledges or makes provision for the equitable claims of the adverse party arising out of the same subject matter. See generally Dool v First Nat. Bank (1929) 207 Cal.347, 351; District Bond Co. v. Pollack (1942) 19 Cal.2d 304, 307. In Oregon & California Railroad Co. v. U.S., 28 U.S. 393, 420 (1915), the Supreme Court noted: “And it is a general principle that a court of equity is reluctant to (some authorities say never will) lend its aid to enforce a forfeiture.” Pomeroy on Equity Jurisprudence, §385 describes this principal “as the foundation of all equity” and defines its effect as follows:

The meaning is, that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject-matter of the controversy."

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.