I've got a motor vehicle accident case where we obtained the tortfeasor's policy limits and the underinsured motorist ins. co.'s policy limits. Both policies were minimal. Client had health insurance, and a subrogated company is wanting reimbursement. I know they can seek reimbursement as to the tortfeasor's policy, but, can the health insurance subrogate against the UM?

Answer: Yes. SeeProvident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 andReeds v. the Honorable Thomas S. Walker,2006 OK 43, 157 P.3d 100. I believeProvidentis actually subsumed by and modified byWalker.
The bottom line is that, assuming the subrogation language of the health policy is worded to permit it, the health insurance can be subrogated against a UM recovery. Even if the subrogation provision is worded broadly enough, though you may have a chance to avoid it by applying the "make whole" rule (as to which see:Equity Fire and Cas. Co. v. Youngblood, 1996 OK 123, 927 P.2d 572), if it is not an ERISA plan which negatives the make whole rule. If it is an ERISA plan, then ERISA preemption controls over the state law.

Do health care liens attach to medpay benefits? What aboutsubrogation claims by an ERISA plan?

Answer: Hospital liens don't attach to medpay but others do. See:42 O.S. §46 Physician's Lien: contains subsection B that, in addition to lien provided in subA, physician shall have lien "against an insurer." 42 O.S. §43. Hospital Liens, has no such provision and, therefore, arguably does not attach a lien to UM or med-pay.
Ambulance lien 42 O.S. § 49 is worded like § 46. 63 O.S. §5051.1 A2 Payment by OHCFA for one with a claim "against an insurer," creates a debt to DHS.Kratz v. Kratz, 1995 OK 63, 905 P.2d 753: Hospital lien does not attach to UM coverage.Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, 139 P.3d 873: Physician's lien attaches to UM.

As for the ERISA subrogation,Generally they have a claim against the medpay recovery. However, it depends on the language of the ERISA plan. The two contrasting cases on that areProvident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 (Health insurance company not entitled to subrogation against UM). Distinguished byReeds v. Honorable Thomas S. Walker/NAICO v. Reeds,2006 OK 43, 157 P.3d 100.

Personally, I am unable to distinguish the policy language in Ridenour from that in Walker but inRidenour, the Court of Civil Appeals held there was no subrogation where the ERISA plan provided subrogation for claims against "third parties." That did not reach subrogation against UM coverage but reached only claims against the tortfeasor. The Supreme Court inWalkerfound a very similar provision providing subrogation against a "third party" applied to the insured's own UM coverage since the UM carrier was a "third party" to the transaction between the ERISA insurance company and the injured insured. It appears to me the Supreme Court just didn't want to reverse Ridenour. I would expect the same rules would apply to medpay coverage.

When an Indian tribe has BCBS health insurance for its employees, does the coverage come under ERISA?

Answer: I think it will depend on what your client does for the tribe.

29 USC 1003(b)(1) provides ERISA does not include a governmental plan as defined in § 1002(32) (includes federal, state or political subdivision "or agency or instrumentality of any of the foregoing." Sec. 1002(32) provides: ". . . . The term "governmental plan" includes a plan which is established and maintained by an Indian tribal government (as defined in section 7701(a)(40) of Title 26), a subdivision of an Indian tribal government (determined in accordance with section 7871(d) of Title 26), or an agency or instrumentality of either, and all of the participants of which are employees of such entity substantially all of whose services as such an employee are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential government function)"

If your client works in a casino, I think it is not a "governmental plan" and ERISA probably applies.

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.