- Practice Areas
- Request Our Book
We’re excited to announce this year’s scholarship winner and runner-up for the Christopher Simon Attorney at Law Scholarship. The awards were based on a variety of factors including academic achievements, current academic status, application essay, school and community involvement, and other achievement standards. After carefully evaluating the applications, we would like to congratulate Chicary Smith as this year’s $1000 winner, and Julie Schwartzwald as runner-up. Congratulations to both of you!
Chicary graduated from Kennesaw State University with a Bachelor of Science in Political Science – concentration in Legal Studies – and was among few students who made it on both the President’s List and Dean’s List. She served as Officer of Mock Mediation Team in 2015 and as the Treasurer of Pre-Law Club in 2014. She has a strong community service record. She’s an incoming 1L student at Syracuse University College of Law.
Chicary has agreed to share her scholarship essay, which answers the following prompt:
Prompt: You are an injury trial lawyer who has negotiated a $250,000 settlement stemming from a car accident with a broken leg and surgery for your client. Your client had health insurance and they paid out $90,000 for medical care and are an ERISA self-funded plan and demand reimbursement. Your attorneys’ fees were 40% of the gross. The case is about to be dismissed by agreement and the funds dispersed. Read https://www.erisaclaimdefense.com/another-scotus-subrogation-decision-another-deep-dive-equity-treatises/ and write a 500-word essay on what dangers your client faces and what the best plan is to protect them.
“My client could possibly face the danger of their insurance company gaining reimbursement of their funds won in settlement if certain conditions are met.
One condition consists of the company’s plan containing language that entails that the funds that it seeks are ‘specifically identifiable’ and are ‘within the possession and control of the participant’. This language seeks to enforce an ‘equitable lien by agreement’, thus making the claim equitable. My client and I need to investigate the company’s plan to confirm if the plan contains language that would satisfy success for its claim. If it does not specifically state the fund as described, then their claim would not be considered equitable.
My client could also face the danger of the insurance company successfully gaining reimbursement if my client had possession of the funds at some point and the funds are still traceable and within their possession. It is noted that as soon as my client has possession of the funds, the equitable lien will attach to them and the plan is not obligated to confine its recovery to the specific money that the participant received. The Supreme Court has held that equitable limitations do not apply to the benefit plan as a whole because the plan is a valid contract and the parties are only demanding what they bargained for under that contract. However, my client can counteract this notion by putting the funds into an entity such as a special funds trust as used in Great-West Life & Annuity Ins. Co. v. Knudson, where the funds would not be considered to be in their possession. The Supreme Court holds that for a plan’s claim to be considered ‘equitable’, restitution is only available “where money or property is identified as belonging in good conscience to the plaintiff”. If my client places their funds in an entity that shows that they are not in their possession, then that voids any restitution that the insurance company tries to seek in an equitable sense. My client could also avoid this danger by simply using the funds on non-traceable items such as services so that they are not traced back to being in their possession. If my client completely squanders their funds on services then there are no funds present for the plan to have a claim to apply because the insurance company cannot seek to attach the claim to my client’s general assets.
My client still has time to implement these strategies discussed above since the case has yet to have been dismissed and the funds have not been dispersed. I need to evaluate the language of the insurance company’s plan to confirm if it states that it has rights to a specifically identifiable fund. If it does indeed use that language, then it would be in the best interest of my client to put the funds in an entity that would cause them to not be considered in her possession or they will need to spend them on non-traceable items and/or services.”
The firm decided to do a $250 2nd place winner, and that award goes to Julie Schwartzwald for general good works and a good essay. She works for the KIPP charter school organization in New Orleans, wrote for several newspapers and is involved with the New Orleans Cherry Bombs. Julie will attend Tulane University Law School this fall as a 1L student.