Here, it is undisputed that the Colliers are in possession of the $ 70,000 currently being held in a non-interest bearing account. The fund is specifically identifiable and within the Colliers’ possession, thus satisfying the Sereboff standard for cognizable relief under § 502(a)(3). Accordingly, the Court must enforce the Plan’s subrogation terms as a matter of law.

Brown & Williamson Tobacco Corp. v. Collier, 2010 U.S. Dist. LEXIS 36505 (M.D. Ga. Apr. 13, 2010)

This is a useful ERISA health plan subrogation case that touches on all the typical issues that arise in the reimbursement context. This case appears in the new cases forum on and may be accessed there.

Georgia has a robust consumer protection statute that applies in health plan subrogation cases. In this instance, however, the plan was self-funded and the statute did not apply.

Neither the Savings Clause nor the McCarran-Ferguson Act applies in this case. Thus, federal law preempts Georgia’s anti-subrogation statute, O.C.G.A. § 33-24-56.1, and consequently, the subrogation clause in Brown & Williamson’s Plan stands.

The “make whole” doctrine also made a cameo appearance and then exited the stage:

While the Colliers correctly assert that the “make-whole” doctrine is the default rule in the Eleventh Circuit, the Colliers fail to acknowledge that the doctrine can be expressly excluded. . . .

Here, the Plan explicitly rejects the “make-whole” doctrine by stating that the reimbursement provisions apply “whether or not you are made whole.”   This express rejection of the “make-whole” doctrine within the terms of the Plan indicates that the doctrine does not apply in this case.

And then a novel argument, which is also rejected:

Finally, the Colliers argue that the present case is devoid of necessary expert testimony establishing proximate causation. The case before this Court does not require the parties to prove the elements of medical malpractice. Instead, this case focuses on whether a claim brought under § 502(a)(3) is appropriate. Thus, this argument is without merit.

Thus, summary judgment was granted to the plan.   Since the plan had identified funds in the possession of the defendant, the Court ordered the funds restored to the plaintiff.