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Table of Contents

List of Forms by Chapter

Chapter 1 — Origin, Perfection, and Attachment of Liens

Chapter 2 — Attorney Liens

Chapter 3 — Health Care Services Lien Act

Chapter 4 — Public Aid Lien (Medicaid)

Chapter 5 — Workers’ Compensation Lien

Chapter 6 — ERISA Benefit Plan Reimbursement

I. Statute

[6.1] Purpose

[6.2] Constitutionality

[6.3] Statutory Construction

II. Definitions and Terminology

[6.4] Employee Welfare Benefit Plan

[6.5] Master Plan Document

[6.6] Summary Plan Description

[6.7] Participant and Beneficiary

[6.8] Subrogation and Reimbursement

[6.9] Reimbursement Agreement

[6.10] Self-Funded Plans and Insured Plans

[6.11] Preemption of State Laws That Relate to Benefit Plans

III. [6.12] Determining Plan’s Right of Reimbursement

Is Plan an ERISA Plan?

[6.13] In General

[6.14] Sources of Information About Plan

Do Plan Documents Create Any Right of Reimbursement?

[6.15] Terms of Master Plan Document Control

[6.16] Terms of Summary Plan Description May Control over Terms of Plan Document

[6.17] Reimbursement Agreement May Create Right of Reimbursement

[6.18] Participant’s Signature on Reimbursement Agreement May Be Condition Precedent to Benefit Payment

[6.19] Plan Is Entitled to Reimbursement Without Signed Reimbursement Agreement

[6.20] Does Reimbursement Language Apply to Participant’s Recovery?

[6.21] Illinois Family Expense Statute and Minor’s Recovery

[6.22] Elements or Allocation of Participant’s Settlement or Judgment

[6.23] Uninsured and Underinsured Motorist Claims

[6.24] Wrongful-Death and Survival Statute Recoveries

Availability of Equitable Defenses to Plan’s Reimbursement Claim

[6.25] Plan Language May Preclude All Equitable Defenses

[6.26] Application of Make-Whole Rule When Not Precluded by Plan Language

[6.27] Application of Common Fund Doctrine When Not Precluded by Plan Language

IV. Action To Enforce Right of Reimbursement

[6.28] Standing

[6.29] Jurisdiction and Venue

[6.30] Plan’s Removal of Participant’s State Tort Action to Federal Court After Recovery To Determine Right to Reimbursement

[6.31] Plan’s Suit Against Participant in Federal Court for Equitable Relief Regarding Reimbursement Despite Participant’s Pending State Court Action

[6.32] What Is “Appropriate Equitable Relief”?

[6.33] State Common-Law Fraud Claims

[6.34] Effect of Distribution of Participant’s Recovery Before Plan’s Suit

[6.35] Plan’s Suit Against Participant in State Court for Legal Relief

[6.36] Plan’s Intervention in Participant’s Tort Action and Settlement with Tortfeasor

[6.37] Arbitration

[6.38] Simultaneous Adjudication of ERISA and Non-ERISA Reimbursement and Lien Rights in State and Federal Forums

[6.39] Statute of Limitations

V. Parties Liable for Breach of Reimbursement Right

[6.40] Participant and Participant’s Attorney

[6.41] Tortfeasor and Tortfeasor’s Insurance Company

[6.42] Effect of Release of Tortfeasor

VI. [6.43] Prompt Pay Statute — Facilitating Payments to Lienholders and Other Claimants in Settling Actions

VII. Amount of Recovery by Plan

[6.44] Plan Recovers Only Amounts It Paid

[6.45] Total Depletion of Participant’s Recovery To Pay Plan

[6.46] Participant’s Attorneys’ Fees and Costs

[6.47] Bankruptcy of Participant

[6.48] Court Review of Plan Administrator’s Decision

VIII. [6.49] Participant’s Right To Receive Future Benefits After Settlement of Plan’s Reimbursement Claim

IX. [6.50] Bibliography

Chapter 7 — Medicare Recovery of Overpayment

Chapter 8 — Miscellaneous Liens

Chapter 9 — Subrogation

Authors

Henry B. Vess, III
Henry B. Vess, III
Henry B. Vess, III, practices as the Law Office of Henry B. Vess III, P.C. Although now a North Carolina resident, he maintains an office in Chicago and consults on and cocounsels plaintiff personal injury litigation and liens disputes in Illinois. Mr. Vess has moderated and spoken at seminars on liens and personal injury trial practice for The Chicago Bar Association, the DuPage County Bar Association, and IICLE^Ò,and he has authored articles for and consulted on various publications regarding liens. He is a member of the DuPage County Bar Association, Illinois State Bar Association, Illinois Trial Lawyers Association, and the American Association for Justice. He received his B.A. cum laude from Kenyon College and his J.D. from Northwestern University School of Law.

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Liens Upon Illinois Tort Actions (ARCHIVED 2014 EDITION)

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