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41 Ariz. St. L.J. 223 (2009)
ERISA Subrogation and Reimbursement Claims: A Vote to Reject Federal Common Law Adoption of a Default Make Whole Rule

handle is hein.journals/arzjl41 and id is 225 raw text is: ERISA SUBROGATION AND REIMBURSEMENT CLAIMS: A Vote to Reject Federal Common Law Adoption of a Default Make Whole Rule J. Thomas Allent I. INTRODUCTION Health insurance is a safety net that can provide someone who has been injured by the negligence of a tortfeasor the necessary funds to cover medical expenses. If a person's injuries are caused by the negligence of another, it is logical and just to require the person who caused the injury to bear the expense of providing medical care for the injured person. However, recovering from the negligent party is not the quickest means of acquiring the funds needed for immediate medical coverage. In some cases the necessary litigation could take so long that it would preclude the possibility of meaningful medical treatment if an injured person had to wait until relief was obtained in a tort suit. Thus, health insurance plans provide the immediate funds needed for treatment while the liabilities of the parties are determined. The majority of Americans with health insurance coverage are covered under plans provided as a benefit by their employers.' Such plans are regulated by the Federal Government under the Employee Retirement Income Security Act (ERISA), which was established by Congress in 1974 in order to protect the interests of participants in employee benefit plans and their beneficiaries.2 Where the language of an ERISA-governed employee benefit plan does not unambiguously assert the plan's right to subrogation and reimbursement in the event that the plan participant or beneficiary recovers damages from a liable third party, some federal courts have applied a default make whole rule that prevents the insurer from seeking reimbursement or subrogation for monies paid to cover the t J.D. candidate, Sandra Day O'Connor College of Law at Arizona State University, May 2009; B.S., Arizona State University, May 2006. Many thanks to Professor Amy Langenfeld for her feedback and encouragement during this process, and to my wife Allison for her continuing devotion. 1. Timothy S. Jost, Pegram v. Herdrich: The Supreme Court Confronts Managed Care, 1 YALE J. HEALTH POL'Y L. & ETHICS 187, 187 (2001). 2. 29 U.S.C. § 1001(b) (2000).

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