32. Haynes v. Farmers Ins. Exchange, 32 Cal.4th 1198 (2004)
Farmers procedure for notifying insureds through endorsements that permissive user’s coverage wd be reduced to legal minimum was not conspicuous, plain and clear. Case contains great language restating and strengthening Gray v. Zurich holding and re insureds virtually never reading their policies.
33. Aetna Health v. Davila, 124 S. Ct. 2488 (2004)
Court strikes Texas state statutes purporting to allow ERISA beneficiaries to sue their HMO’s for damages, because any state law cause of action that supplements or supplants the remedies in the ERISA civil enforcement scheme is preempted. NOTE WELL—case decided after 9th Cir. decision in McDowell and is inconsistent with same.
34. Carpenters H&W Trust v. Vonderharr, 384 F.3d 667 (9th Cir. 2004) cert. denied 126 S. Ct. 729 (2005) First 9th Cir. case after McDowell. Holds that constructive trust/equitable lien will not lie against plan members or others for processing an insurance claim under ERISA and then resisting reimbursement without traditional requirements of fraud or wrongdoing. Also, on claimants’ cross-appeal, reversed district court’s denial of attorneys fees to defendants, holding that prevailing ERISA defendants were entitled to the “special circumstances” presumption of entitlement to fees. Court skirts McDowell issue by remanding case to district court for reconsideration of state claims in light of McDowell. (Note: On day before S. Ct. due to rule on cert. case settled with union trust waiving its full $155K lien, agreeing to future meds w/o reimbursement and paying $66,500 in Vonderharr's attorneys fees. S. Ct. requested brief from Solicitor General re govt's position; SG filed brief attacking 9th Cir. position and urging S Ct to grant cert. in Sereboff due to settlement in Vonderharr—see Sereboff @ 41 below. SG's brief argued in favor of a rule of automatic constructive trust w/o regard to any fraud or wrongdoing).
35. Lee v. State Farm 57 Cal.App.3d 458 (1976)
Common fund doctrine applies to reduce a carrier's claim for med pay reimbursement by its pro rata share of plaintiff's attorneys fees and costs.
36. Bartlett v. Pacific National Bank 110 Cal.App.2d 683,689; Hendricks v. Superior Ct., 197 Cal.App.2d 586, 589 Attorneys contingent fee contract gives attorney a lien on his client's recovery. 37. Cetenko v. United California Bank, 30 Cal.3d 528 (1982) Statutory lien does not take precedence over a prior attorneys fee lien unless statute otherwise provides.
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