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Health Fund

The Fund's Right Of Reimbursement And Subrogation

The Fund has the right, whether by subrogation or reimbursement, or any other equitable or legal relief available under state or Federal Law, to recover from you, your dependents or any other person or trust in possession of such monies sought by the Fund, all benefits paid by the Fund on you or your dependents' right or behalf for injuries or disabilities that you or your dependents have suffered as a result of the negligence or wrongdoing of others for which you receive a "Recovery." Recovery includes without limitation, any amount awarded to or received by way of court judgment, arbitration award, settlement or any other arrangement, from any third party or third party insurer, or from your uninsured or underinsured motorist, homeowners' or other insurance coverage, related to the illness or injury, without reduction for any attorneys' fees paid or owed by you or on your behalf, and without regard to whether you or your dependent have been "made whole" by the Recovery. Accordingly, the Fund does not recognize the "Make Whole Doctrine." The Recovery also includes all monies received, regardless of how held, and includes monies directly received by the participant or eligible dependent, as well as any monies held in any account or trust on their behalf, such as an attorney-client trust account.

If you and/or your dependents are injured as a result of the negligence or other wrongful acts of a third party and you/your dependents apply to the Fund for benefits and receive such benefits, the Fund shall then have a first-priority lien on any Recovery for the full amount of the benefits that are paid to you and/or your dependents. In addition, in the event you and/or your dependents fail to seek to recover any monies from the third party that caused the injuries, the Fund shall be subrogated to your right of recovery against that third party. You and your eligible dependents are responsible for all expenses incurred to obtain payment for third parties, including attorney fees, which amounts will not reduce the amount due to the Fund as restitution. Accordingly, the Fund expressly rejects the "Common Fund" doctrine with respect to the payment of attorney fees.

No benefits will be paid unless you sign an agreement to the subrogation rules as follows:

If you or a dependent's injury or illness was, in any way, caused by a third party who may be legally liable or responsible for the injury or illness, no benefits will be payable nor paid under any coverage of the Fund unless you contractually agree in writing, in a form satisfactory to the Fund, to do all of the following:

  • Provide the Fund with a written notice of any claim made against the third party for damages as a result of the injury or illness;
  • Agree to reimburse the Fund for benefits paid by the Fund from any Recovery when the Recovery is obtained from or on behalf of the third party or the insurer of the third party or from your own uninsured or underinsured motorist, homeowners or other insurance coverage;
  • Agree that the Fund has established a lien on any Recovery, which will be kept separate from and not co-mingled with any other funds, and further agree that the portion of any Recovery required to satisfy the lien of the Fund shall be held in trust for the sole benefit of the Fund until such time as it is conveyed to the Fund;
  • Execute a lien in favor of the Fund for the full amount of the Recovery which is due for benefits paid by the Fund;
  • Periodically respond to information requests regarding the status of the claim against the third party, and notify the Fund, in writing, within ten (10) days after any Recovery has been obtained;
  • Direct any legal counsel retained by you, or any other person acting on your behalf, to hold that portion of the Recovery to which the Fund is entitled in trust for the sole benefit of the Fund, and to comply with and facilitate the reimbursement to the Fund of the monies owed to it (as described and defined below);
  • Assign, upon the Fund's request, any right or cause of action to the Fund;
  • Fully cooperate with the Plan Administrator in all respects in the Fund's enforcement of its equitable (or other) rights to restitution and keep the Fund informed of any important developments in your action;
  • Not settle, without the prior written consent of the Plan Administrator, any claim that you or your eligible dependents may have against a third party, including an insurance carrier;
  • Agree to the entry of judgment against you and, if applicable, your dependent, in any court for the amount of benefits paid on your behalf with respect to the illness or injury to the extent of any recovery or proceeds that were not turned over as required and for the costs of such collection, including but not limited to the Fund's attorney fees and costs; and
  • Take all other action as may be necessary to protect the interests of the Fund.

If you or your dependents fail to comply with any of the aforementioned requirements, no benefits will be paid with respect to the injury or illness. If benefits have already been paid, they may be recouped by the Fund.

We strongly recommend that, if you are injured as a result of the negligence or wrongful act of a third party, you contact your attorney for advice and counsel. However, the Fund cannot and does not pay for the fees your attorney might charge. Should you seek to recover any monies from any third party that caused your injuries, it is the Fund's rule that you must give notice of same to the Fund Office within ten (10) days after either you or your attorney first attempts to recover said monies, and if litigation is commenced, you are required to give notice to the Fund of any pre-trial conferences within five (5) days of the same. Representatives of the Fund reserve the right to attend such pre-trial conference.

The Fund's lien is contractual and is a lien on the proceeds of any compromise, settlement, judgment and/or verdict received from either the third party or his insurance carrier. By applying for and receiving benefits from the Fund in such third-party situations, you must reimburse the Fund the full amount of the benefits that are paid to you and/or your dependents from the proceeds of any such compromise, settlement, judgment and/or verdict, to the extent permitted by law. By applying for benefits, you agree that the proceeds of any compromise, settlement, judgment and/or verdict to the extent permitted by law. By applying for benefits, you agree that the proceeds of any Recovery, if paid directly to you, will be held by you separate from and not commingled with any other funds, in constructive trust for the Fund.

By accepting benefits, you agree that the proceeds of any Recovery paid to any other person or entity other than you, including but not limited to, a trust, an attorney or any agent thereof, shall be held by such other person, entity or trust in constructive trust for the Fund. The Fund reserves the right to seek recovery from such person, entity or trust and to name such person, entity or trust as a defendant in any litigation arising out of the Fund's subrogation or restitution rights. By applying for benefits, you agree that, except where mandated by statute, any lien the Fund may seek will not be reduced by any attorney fees, court costs or disbursements that you might incur in your action to recover from the third party, and these expenses may not be used to offset your obligation to reimburse the Fund for the full amount of the lien. Further, you agree that any Recovery will not be reduced by and is not subject to the application of the "Common Fund" doctrine theory for the recovery of attorney fees.

Remember, the Fund does not require you to seek any recovery whatsoever against the third party, and if you do not receive any recovery from the party, you are not obligated in any way to reimburse the Fund for any of the benefits that you applied for and accepted. However, the Fund is entitled to obtain restitution of any amounts owed to it either from third-party funds received by you or your eligible dependents, regardless of whether you or your eligible dependents have been fully restituted for losses sustained at the hands of the third party. Accordingly, in the event that you do not pursue any and all third parties and responsible sources, the Fund is authorized to pursue, sue, compromise or settle (at the Board's discretion) any such claims on your behalf and you agree to execute any and all documents necessary to pursue said claims and, furthermore, to fully cooperate with the Fund in the prosecution of such claims. In accordance with this authority, a Fund representative may commence or intervene in any proceeding or take any other necessary action to protect or exercise the Fund's equitable (or other) right to obtain restitution. To this end, by participating in the Fund, you and your eligible dependents acknowledge and agree to the terms of the Fund's equitable (or other) rights to full restitution. You and your eligible dependents also agree that you are required to cooperate in providing and obtaining all applicable documents requested by the Plan Administrator, including the signing of any documents or agreements necessary for the Fund to obtain full restitution.

In the event you fail to notify the Fund as provided for above, and/or fail to reimburse the Fund as provided for above, the Fund reserves the right, in addition to all other remedies available to it by law or equity, to withhold any other monies that might be due you from the Fund for either past or future claims, until such time as the Fund's lien is discharged.

Any amounts received from a third party by judgment, settlement, or otherwise must be applied first to reimburse the Fund for the amount of medical expenses paid on behalf of a participant or beneficiary. The Fund's lien is a lien of first priority. Where the recovery from the third party is partial or incomplete, the Fund's right to reimbursement takes priority over the participant's or beneficiary's right of recovery, regardless of whether or not the participant or beneficiary has been made whole for his or her injuries or losses.