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.

Plaintiff injured in auto wreck has health insurance pay bills. She is later discharged in bankruptcy, listing the health insurance as a creditor. Does this extinguish their subrogation claim?

Answer: Read In re Burnett, 447 B.R. 634 (Bkrtcy W.D. OK 2011). That case holds the subrogation claim was not valid against a settlement but only because the bills for which the health insurance company sought subrogation were incurred and paid "post-petition" (ie, after the bankruptcy was filed). It sure talks as if the subrogation would have been upheld if the subrogation claim preceded the bankruptcy, which I think is your situation.

If both medpay and UM are available under the policy, you can claim them both.

Answer: Yes. See: Aetna v. State Board of Prop. & Cas. Rates, 1981 OK 153, 637 P.2d 1251: Med pay offset against UM invalid. No subrogation for medical bills paid under UM

Do you have a Blue Cross Blue Shield policy so I can see the subrogation language?

Answer: Be careful about relying on the BC/BS subrogation language from some other policy. BC/BS has a bewildering array of plans and the subrogation provisions are not always the same. Get your client’s employee benefit booklet and examine that language.

Isn't it true a health insurance subrogation claim is null and void against a GTCA case?

Answer: That's a good question. 51 O.S. Sec. 155(27) says: “The state or a political subdivision shall not be liable if a loss or claim results from... 27. Any claim or action based on the theory of indemnification or subrogation...” Does this mean the injured plaintiff can collect for the medical bills paid under a subrogated health policy or does it mean the injured employee can’t recover for those medical bills, since the statute exempts the governmental entity from the liability. The governmental entities’ lawyers will argue the latter, arguing that the statute is obviously not intended to provide a windfall for injured plaintiffs. The injured plaintiffs’ lawyers will argue that the statute doesn’t, on its face, purport to deal with whether the injured plaintiff can recover but only says the subrogated entity cannot recover subrogation. Get ready to go to the Supreme Court.