Benefits are coordinated when both you and your spouse (and/or your dependent children) are covered by this Plan as well as by one or more other group health plans. Coordination allows benefits to be paid by two or more plans, up to but not to exceed 100% of the allowable expenses on the claim. It also prevents the two plans from making duplicate payments.
GENERAL C.O.B. INFORMATION
ORDER OF BENEFIT DETERMINATION
When a person who has a claim is covered under one or more other group plans in addition to this Plan, the plans will determine their benefits in ac-cordance with the first of the following rules:
TWO FUND PARTICIPANTS
If you and your spouse are both covered as employees under this Plan and one of you has a claim, the Plan will coordinate benefits on the claim. Claims for your dependent children will be paid as claims of the husband.
WITH NONCOMPLYING PLANS
If it is determined that this Plan should pay second under the rules for order of benefit determination but this Plan is coordinating its benefits with a Plan that is unable or unwilling to pay benefits when due, or says that it always pays second, or uses different rules for order of benefit determination, this Plan will pay its benefits first. However, the amount of the benefits payable by this Plan will be determined as if this Plan were the secondary plan. In such a situation, any payment by this Plan will be the limit of this Plan’s liability.
C.O.B. WITH MEDICARE
Medicare rules determine whether or not Medicare pays primary or secondary when a person has other health care coverage. This Plan will pay secondary to Medicare whenever it is allowed to do so.
If Medicare is a person’s primary plan under Med-icare’s rules, this Plan will pay its secondary (reduced) benefits as if he is enrolled in both Part A and Part B of Medicare, even if he is not actually enrolled in both Parts.
When an eligible retiree or the spouse of an eligible retiree becomes eligible for Medicare, this Plan’s retiree coverage for that person will terminate.
By accepting benefits under the Plan, you agree to be subject to the terms and conditions of this Subrogation; Reimbursement; and the Constructive Trust of Plan Assets provision.
The Trustees intend that neither you nor your parent(s), or your spouse or dependent(s) or a representative, guardian or trustee of you, your parent(s), spouse, or dependent(s) (collectively referred to herein as “Claimant”) may profit from the payment of benefits or reimbursement or the payment of any compensation for injuries. The purpose of the Plan is to pay covered expenses if they are not paid or payable by anyone else, whether or not such payments are the legal responsibility of you as a covered person or another eligible individual, such as your spouse or dependents.
Therefore, expenses that result from a third-party incident (as defined below) are not covered expenses under the terms of the plan to the extent that any amounts are recovered by a claimant from a third party related to such third-party incident, regardless of how the recovered amounts are characterized. Once a claimant has obtained a recovery, no further benefits are payable from the Plan for any claims related to the third-party incident, until the total of covered expenses arising out of the third-party incident equals the gross amount of the recovery paid to or on behalf of the claimant. The Plan will then consider only the amount of the claims that exceeds the amount of the gross recovery. However, the Trustees, in their sole and absolute discretion, may choose to advance amounts as payment for expenses for medical care in situations where or at a point in time when liability for such expenses has not been established.
“Third Party Incident” means any instance in which a third party is or may be responsible or liable for paying all or part of the expenses for which a claim is filed with the Plan.
A “third party” could be, but is not limited to:
“Subrogation” is a legal term for a rule that gives the Plan the right to be repaid for benefits it pays on a claim if a third party is responsible for paying the expenses for which the claim is made.
To the extent of any payments the Plan makes or may be obligated to make for a claim related to a Third-Party Incident, the Plan shall be subrogated to any and all rights of recovery and causes of action that a claimant may have relating to the Third-Party Incident. The Plan shall be fully subrogated to any and all rights of recovery and causes of action that the claimant may have relating to the third-party Incident. The subrogation right applies on a priority, first dollar basis to any recovery, whether by suit, settlement or otherwise, whether a partial or full recovery, and regardless of whether the Claimant is made whole, from any source liable for making a payment relating to the injury, illness, or condition to which the claim relates. Thus, the Plan specifically rejects the “made whole doctrine” and any other equitable doctrine or law that requires an insured to be “made whole” before subrogation rights are allowed. Further, it is prohibited for a Claimant to settle a claim against a Third Party for certain elements of damages but eliminating damages relating to medical expenses incurred.
This Fund excludes work-related claims, even if the claim is being disputed, appealed, arbitrated, or litigated. The Fund may, however, as a courtesy to the Fund participant, voluntarily make payments on such a work-related claim subject to the terms and requirements set forth in this Subrogation provision. If the Fund does make claim payments, the Fund will have a first priority right of reimbursement. This means that the Fund will be entitled to recover 100% of the amount it paid to or on behalf of Claimant from any and all amounts paid by or recoverable from any source, regardless of how the damages are characterized. The Fund will not have any financial responsibility with respect to the cost of legal services or other costs in connection with such a work-related claim, even if the recovery is insufficient to compensate the Claimant for all damages sustained. The Fund retains the right to discontinue the payment of benefits at any time under this provision.
The Claimant will first reimburse the Plan on a priority, first dollar basis for all payments the Plan made or may be obligated to make for the claim from any recovery relating to a Third-Party Incident, whether by suit, settlement or otherwise, including partial or full recoveries, and regardless of whether the Claimant is made whole. Once the Plan makes or is obligated to make payments on behalf of the Claimant, the Plan is granted, and the Claimant consents to, an equitable lien by agreement or a constructive trust on the proceeds of any payment, settlement or judgment received by the Claimant from any Third Party.
The Plan has the right to recover amounts representing the Plan’s subrogation and reimbursement interest through any appropriate legal or equitable remedy, including but not limited to the initiation of a recognized cause of action under ERISA or other applicable federal or state law, the imposition of a constructive trust or the filing of a claim for equitable lien by agreement against any Claimant for recovery from any Third Party, whether by settlement, judgment or otherwise. The Plan’s subrogation and reimbursement interests, and rights to legal or equitable relief, take priority over the interest of any other person or entity.
Further, where the Claimant or its agent receives a recovery from any Third Party but does not reimburse the Plan, the Plan shall have a right of offset against the amount of future benefit payments on claims submitted by you or your spouse or dependent until the Plan has recovered the full amount allowed under this Section.
The Plan’s right of subrogation and reimbursement will not be reduced or affected as a result of any fault or claim on the part of the Claimant, whether under the doctrines of imperative causation, comparative fault or contributory negligence, or any other similar doctrine in law. Accordingly, any so called “lien reduction statutes,” which attempt to apply such laws and reduce a subrogating Plan’s recovery for any reason, including contributory negligence, will not be applicable to the Plan and will not reduce the Plan’s subrogation recovery. The benefits provided under this Plan are secondary to any benefits or coverage provided under any no-fault law or similar legislation or no-fault-type insurance.
If a claim is submitted for expenses for which someone else is or may be legally responsible, the Claimant, or his/her agent, must sign a repayment and subrogation agreement. The agreement must be signed before benefits will be payable under the Plan. Failure to sign the agreement may result in offsets or other collection actions against the Claimant. The Agreement must include a provision that the Plan will have an equitable lien by agreement on the proceeds of any recovery arising out of the Third-Party Incident to the full extent of the Plan’s subrogation and reimbursement rights and to the full extent of its rights to repayment under the Agreement that may be independent of subrogation and/or reimbursement rights. The attorneys for Claimant must sign and agree that they will honor and enforce the terms of the agreement before disbursing the proceeds of any recovery arising out of the Third-Party Incident.
If Claimant is a minor or is otherwise legally incompetent, Claimant’s parent, legal guardian or “next friend” must sign a legally binding Repayment and Subrogation Agreement on behalf of the injured incompetent person before the Plan will be obligated to pay any benefits arising out of the Third-Party Incident. The Plan is not and will not be liable for, nor does it or will it have any obligation to pay, any benefit arising out of a Third-Party Incident unless and until an Agreement in a form satisfactory to the Trustees has been received by the Plan, executed by all persons to the full satisfaction of the Trus-tees.
The agreement will be binding upon the claimant whether the payment received from the third party or its insurer results from a legal judgement, an arbitration award, a settlement, or any other determination, arrangement, or agreement. The agreement also will be binding on any recovery made by the claimant, even if the recovery does not include medical expenses or reference to the agreement.
Claimant agrees to instruct and cause any attorney(s) retained on his/her behalf to honor and enforce the terms of the Agreement before disbursing the proceeds of any recovery arising out of the Third-Party Incident.
The agreement shall provide, among other things, that the claimant agrees:
Notwithstanding the preceding, the failure of the Agreement to contain any provision listed above in whole or in part shall not cause the Agreement to be invalid or unenforceable in whole or in part.
The agreement to reimbursement or to repay set forth in the agreement and the Plan’s right to subrogation are separate and distinct rights and obligations. The failure or invalidity, in whole or in part, of one such right or obligation will not impair or otherwise adversely affect any such other right or obligation.
The Plan specifically disavows any claim the Claimant may make under the “Common Fund Doctrine.” This means that the Plan shall not be responsible for any of the Claimant’s court costs, experts’ fees, attorneys’ fees, filing fees, or other costs or expenses incurred in seeking a recovery, whether by suit, settlement or otherwise, unless the Trustees agree in writing to pay such fees or costs.
The Claimant specifically is prohibited from incurring any expenses, costs, or fees on behalf of the Plan in pursuit of his rights of recovery against a third-party or the Plan’s subrogation/reimbursement rights as set forth herein.
The Trustees may waive the above subrogation or reimbursement rights, or any part thereof, if they decide such action is in the best interest of the Plan and its participants.
By accepting benefits under the Plan, Claimants are prohibited from doing anything that will impair, release, discharge or prejudice the Plan’s subrogation or reimbursement rights.
No Claimant may assign any rights or causes of action that he or she might have against a third-party, which would grant the Claimant the right to recover medical expenses or other damages, without the express, prior written consent of the Plan. The Plan’s subrogation and reimbursement rights apply even where a person has died as a result of his or her injuries and the Claimant is asserting a wrongful death or survivor claim against the third-party under the laws of any state. The Plan’s right to recover by subrogation or reimbursement shall thus apply to any settlements, recoveries, or causes of action owned or obtained by a decedent, minor, incompetent, or disabled person.
Neither Claimant nor any other person will be required to repay to the Plan more than the benefits the Plan pays on the claim, nor more than the gross amount the Claimant receives in recovery, whichever is less, without regard to attorneys’ fees and expenses incurred in obtaining such recovery.
Should any money subject to the Plan’s Subrogation and reimbursement terms or the Agreement be recovered by or on behalf of any Claimant, and such money is transferred to the Claimant, Claimant agrees that such money is a Plan asset, and that Claimant is a fiduciary to the Plan with respect to that money, pursuant to ERISA § 3(21)(A)(i). As a fiduciary, Claimant is required to hold the money in trust on behalf of the Plan and not otherwise spend or distribute the money until the Plan has released its subrogation lien in writing. If the Claimant is a fiduciary pursuant to the foregoing, a failure to comply with the terms of the Plan or the Agreement shall be considered a breach of fiduciary duty, and the Trustees may enforce the terms of the Agreement and/or the Plan through legal action, reduction of benefits, offset, or any other available legal or equitable
The Plan shall be entitled to recover (including by means of offset against future benefits or any other means of recovery) from you and/or your dependents any excess payments paid to you or your dependents, or on your/their behalf due to mistake or fraud or any other reason or if the Plan otherwise determines that you/they are not entitled to such benefit payments or to the full amount of the payment made.