There is an important new case out of the 3rd Circuit addressing whether ERISA health insurance plan must pay its share of recovery costs associated with its subrogation claim: US Airways, Inc. v. McCutchen, __F.3d __, 2011 WL 5557411: Where ERISA claim for bills paid was $66,866 and recovery (due to limited coverage) was $110,000 and injured plan member owed 40% attorney fee, District Court erred in requiring injured plan member to pay back all of the recovery. "Appropriate equitable relief" which plan could seek meant something more than equitable relief and required the court to exercise its discretion to avoid unjust enrichment to the plan. Court says this is required by Sereboff v. Mid Atlantic Medical Servs., Inc., 547 U.S. 356, 361, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006), which had the effect of modifying the holdings in prior, contrary 3rd circuit rulings. Notes its decision is contrary to other circuits in Zurich Am. Ins. Co. v. O'Hara, 604 F.3d 1232 (11th Cir.2010); Admin. Comm. of Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Shank, 500 F.3d 834 (8th Cir.2007); Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir.2003); Admin. Comm. of the Wal-Mart Stores, Inc. Assocs.' Health & Welfare Plan v. Varco, 338 F.3d 680 (7th Cir.2003).

This seems to set up a conflict among the circuits for the U.S. Supreme Court to take up the question whether the ERISA plan can refuse to pay its proportionate share of recovery costs and leave the plan participant uncompensated.

A new statute, 12 O.S. section 684, lets a judge require a plaintiff in a refilled case to pay the defendant's costs from the first filing. Does this not unfairly restrict access to the courts?

Answer: Moses v. Hoebel, 1982 OK 26, 646 P.2d 601 holds a similar statute unconstitutional as violating access to justice and open courts provisions.

Have a case with 100k policy limit. Policy says costs and fees come out of that limit. Can they do that?

Answer: Probably, so long as the policy is not a statutory policy so that applying the reduction for defense costs would provide less coverage than the statute requires.  The general rule is that if the coverage is not statutorily required, the parties are free to contract for whatever policy provisions they wish.  See: Frank v. Allstate, 1986 OK 42, 727 P.2d 577; Equity Mut. Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, 747 P.2d 947.

Can I recover expert witness fees as costs?

Answer: The law seems to be pretty well developed on this. You can recover if it is the opponent’s expert whom you had to depose but cannot if it is your expert. Dulan v. Johnston, 687 P.2d 1045 (Okla. 1984): Expert witness fee not allowable as costs. 12 O.S. 1999 Supp. § 942 - Costs which judges may [meaning “must” per Atchley v. Hewes, 1998 OK CIV APP 143, 965 P.2d 1012] award include “statutory” witness fees. Atchley v. Hewes, 1998 OK CIV APP 143, 965 P.2d 1012: Reasonable fees paid an expert witness for discovery per 12 O.S. Supp. 1996 § 3226(B)(3)(c)(1) are recoverable as costs under 12 O.S. 1999 Supp. § 942. A doctor is an expert witness when she is retained specifically to testify at trial and express an opinion based both on facts gleaned from exam and consideration of matters within the doctor’s realm of expertise. A party’s treating physician is not considered an expert witness unless doctor’s opinion to be introduced at trial is based both on treatment of party whose condition is at issue and consideration of matters within doctor’s realm of expertise that are outside the patient’s treatment. 965 P.2d 1012, 1015, citing McCoy v. Black, 1997 OK CIV APP 78, 949 P.2d 689.