The United States Supreme Court ruled today that absent an express provision to the contrary, the amount an ERISA plan can recover from a plan participant’s lawsuit against a third-party tortfeasor must be reduced proportionately by the amount of attorneys’ fees the participant incurred to obtain the recovery.
In US Airways, Inc. v. McCutchen, an ERISA health plan paid $66,866 for James McCutchen’s medical expenses for injuries sustained in an automobile accident. McCutchen later hired counsel and recovered $110,000 from the other automobile driver and from his own automobile insurer. After paying his attorneys their 40% contingency fee, McCutchen was left with a net recovery of $66,000. Given McCutchen’s total recovery of $110,000 and based upon a reimbursement provision if McCutchen recovered money from a third party, the ERISA plan sought recovery of the $66,866 it paid on his behalf.
The district court granted summary judgment in favor of the ERISA plan, holding that it could recover from McCutchen the full amount it paid. The Third Circuit vacated the district court’s judgment, noting that McCutchen would be left with less then full payment for his medical bills and the result would give a windfall to the plan. The Supreme Court reversed, holding that while the ERISA plan could recover the medical expenses paid, any recovery had to be reduced proportionately - pursuant to the common-fund doctrine - by the amount of attorneys’ fees incurred in the lawsuit against the third-party tortfeasor.
In a 5-4 decision, the Supreme Court reasoned that the ERISA plan’s governing documents did not explicitly provide that the plan had first priority to reimbursement from third-party recoveries.
Justice Elena Kagan wrote the majority opinion, noting that full reimbursement from McCutchen produced the odd outcome whereby McCutchen was in a worse position by pursuing and obtaining a third-party recovery:
Without cost sharing, the insurer free rides on its beneficiary’s efforts – taking the fruits while contributing nothing to the labor.”
Instead of permitting the ERISA plan to recover up to the amount of McCutchen’s net recovery (i.e., $66,000), the Court held that where the plan does not specify rules for allocating a third-party recovery between the plan and the participant, the common-fund doctrine provides the default allocation rules. McCutchen was therefore entitled to retain 40% of his net recovery as his “attorney fee” for recovering a common fund for the benefit of another.
The Court unanimously agreed that equitable principles cannot override the plain terms of an ERISA plan. However, the dissent, which was authored by Justice Antonin Scalia, would not have applied the common-fund doctrine because it disagreed that the plan’s terms were ambiguous. Justice Scalia stated that the Court granted certiorari based on an understanding that the plan’s terms unambiguously allowed for full reimbursement from third-party recoveries without any reduction for attorneys’ fees and costs.