Part 5 ERISA Defenses – Ninth Circuit Court Perspective (California)

You can use the following argument as an example to help your injured client when negotiating a reduction from his or her ERISA protected health plan:

"Notably, Pomeroy was relied upon by the United States Supreme Court in the Sereboff case. By purporting to eliminate all equitable defenses in the plan’s misplaced reimbursement provision, the union has removed equity from the equation and is clearly violating this fundamental principle of equity. As a result, your client is effectively seeking legal relief for breach of a contractual provision, that is barred by 29 USC §1132(a)(3), as interpreted by the Supreme Court in Knudson, supra. It should be emphasized that there is nothing equitable about the subrogation provision. It purports to reverse the entire concept of insurance designed to spread the risk among a large pool of consumers in favor of placing the entire risk on the seriously injured victim, who is least able to absorb it.

Here is the 9th Circuit Court in California Perspective: 

Ninth Circuit Precedent: The fourth potential complete defense is provided by the controlling law of this circuit. The Ninth Circuit held in Carpenters Health v. Vonderharr, 384 F.3d 667, 672 5 (2004); cert. denied 126 S. Ct. 729 (2005) that fraud or wrong-doing is required for a plan to recover reimbursement under a restitution or constructive trust theory:

"The remedies of restitution and the imposition of a constructive trust are available under §1132(a)(3), but only as true equitable remedies and provided the traditional requirements of fraud or wrong-doing are satisfied. (emphasis supplied)"

Since the Supreme Court denied certiorari in Vonderharr, this is still the law of the Ninth Circuit to the extent that it is not inconsistent with the later decision in Sereboff, infra. It is quite clear that the Supreme Court limited its holding in Sereboff and did not discuss the issue of the requirements for a constructive trust. Sereboff specifically held that “The only question presented is whether the relief Mid-Atlantic requested from the district court was ‘equitable’ under §502(a)(3)(B).” Consequently, any federal district court within the Ninth Circuit would be bound stare decisis to follow the express holding of Vonderharr. Moreover, the holding in Vonderharr is consistent with the common law of constructive trusts requiring mistake or some wrongful act to give rise to such a trust. By way of example, California Civil Code §2224 sets forth the requirements for an “Involuntary Trust” as the gaining of “a thing by fraud, accident, mistake, undue influence, violation of trust or other wrongful act...” Clearly, there was no wrongful act on the part of Mr. XX which would support the creation of such a trust. See also FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir. 1997) for a detailed discussion of this rule. The Vonderharr holding above follows a well established line of Ninth Circuit precedent, of at least seven cases, so it will almost certainly be followed by any district court within the circuit and by the Ninth Circuit itself. Thus, any action filed for constructive trust or equitable lien without the requisite showing of fraud or wrongdoing is likely to be dismissed on a 12(b)(6) motion.

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.