Where an ERISA plan specifically sets forth in the plan document its rights to reimbursement/subrogation vis-à-vis a plan participant then there is no requirement that recovery be conditioned on the plan being able to trace the recovered monies to the original benefit payment. Under such circumstances, the plan is considered to have an equitable lien by agreement. The Second Circuit recently had occasion, however, to consider whether an equitable lien could attach against another plan that provided overlapping medical coverage to a participant. The Court held that it did not. In so ruling, the Court concluded that the plan’s claims did not seek appropriate equitable relief because there was no agreement between the parties that identified a particular share of a specific fund to which the plan was entitled. Recognizing that its holding could deprive an ERISA plan of any remedy in cases of this nature and could potentially create an incentive for similarly-situated ERISA plans to refuse coverage, the Court stated that it was bound to apply the law as interpreted by the U.S. Supreme Court and that it hoped Congress would “revisit this tangled web sooner rather than later.” The case is Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 2014 WL 2853587 (2d Cir. Nov. 14, 2014).
