13.    Bast v. Prudential,150 F.3d 1003 (9th Cir.1998) , cert. denied 120 S.Ct. 170

Ninth Circuit denies claim for wrongful death v. insurance carrier under ERISA because not expressly authorized by statute. Summarizes case law re broad effect of preemption clause in ERISA.


14.    Hotel Employees and Restaurant Employees International Union Welfare Fund v. Gentner, 50 F.3d 719, 723 (9th Cir. 1995)

Ninth Circuit here held that an attorney does not have a fiduciary duty to a health insurance plan to protect its subrogation agreement or lien on its beneficiary's recovery from the third party tortfeasor. The court specifically held that a "Subrogation agreement or lien can be enforced against the attorney only if the attorney agrees with the plan and the creditor to protect the lien." id at 721. The Ninth Circuit further held that mere notice or knowledge of the subrogation agreement or lien does not constitute an implied contract. The reasoning of the Ninth Circuit is cogently expressed as follows, "Imposing a fiduciary status on an attorneys representing beneficiaries would place these attorneys in the untenable position of owing fiduciary duties to both their clients and the ERISA plans . . . and attorney's dual service to such adverse parties would . . . violate local ethical rules . . .” Accord Chapman v. Klemick, 3 F.3d 1508, 1511-12 (11th Cir. 1993).


15.    Samura v. Kaiser Foundation Health Plan, Inc., 17 Cal.App.4th 1284, 1287 (1993)
The court held that the common fund doctrine applied to the lien of Kaiser to effectuate a pro rata reduction for the claimant's attorney's fees and costs. The “make- whole” doctrine can be waived by contract. The doctrine of unconscionability applies to reimbursement provisions.


16.    Cement Masons v. Stone, 197 F.3d 1003 (9th Cir. 1999)

Ninth Circuit holds that a union health plan may not pursue contractual reimbursement under ERISA. Court notes that this prohibition is so well established by Ninth Circuit case law that such claims are "verging on foolhardy."


17.    Reynolds Metals Co., v. Ellis, 202 F.3d 1246 (2000)

Upholds ERISA prohibition on reimbursement provisions in health care plans. 
Notes that the terms "reimbursement" and "subrogation" are used interchangeably.

Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, 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, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.