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Click here for the full text of this decision FACTS:The defendants-appellants, Ferrer, Poirot & Wansbrough, and Steven Mestemacher appeal the district court’s grant of the summary judgment motion of plaintiff-appellee, Bombardier Aerospace Employee Welfare Benefits Plan, an ERISA-governed, self-funded employee welfare benefit plan, to enforce the terms of the plan’s reimbursement provision against the firm and Mestemacher. They also appeal the district court’s denial of their respective motions to dismiss the plan’s action for lack of subject matter jurisdiction and for failure to state a claim, as well as its denial of their joint motion for summary judgment. The plan was established by Bombardier Aerospace to provide managed care services for its employees and their dependents. Mestemacher was an employee of Bombardier Aerospace and a participant in the plan. After he was injured in an automobile accident, he sought $13,643.63 from the plan for medical expenses. The plan paid Mestemacher’s medical expenses in that amount, subject to a “Reduction, Reimbursement and Subrogation” provision contained in the plan’s documents. That provision gave the plan “the right to recover or subrogate 100% of the Benefits paid . . . by the Plan for Covered Persons to the extent of . . . [a]ny judgment, settlement, or payment made or to be made, because of an accident, including but not limited to insurance.” The documents further specified that “attorneys fees and court costs are the responsibility of the participant, not the Plan.” Mestemacher retained the law firm on a one-third contingent fee basis to seek recovery from the tortfeasor responsible for the automobile accident. After negotiating a $65,000 settlement, the law firm received the settlement payment on Mestemacher’s behalf and placed the funds in a trust account at Bank of America in the law firm’s name. This action arises out of the plan’s efforts to obtain reimbursement for the funds advanced to Mestemacher. HOLDING:Affirmed. The firm’s status as a nonfiduciary would have some relevance to this case if the plan were seeking to saddle the lawyers with personal liability for the breach of a fiduciary duty. As it stands, however, the only action that the plan asserts is one for equitable in rem relief under ERISA �502(a)(3). As liability under that provision does not depend on whether a substantive provision of ERISA imposes a duty on the particular defendant subject to suit, the court holds that the firm, as counsel for the plan participant and stake holder of specifically identifiable settlement funds in a trust account � on that beneficiary’s behalf � fits comfortably within the “universe of possible defendants” subject to suit under that provision. In its efforts to recoup the amount paid to Mestemacher in benefits, the plan does not seek to impose personal liability on either Mestemacher or his counsel. Thus, the court holds the plan’s requested relief � the imposition of a constructive trust over specifically identifiable settlement funds held in the trust account of the law firm as agent for Mestemacher � to be equitable in nature. Accordingly, the court further holds that �502(a)(3) authorizes the plan’s claim for relief, and affirms the district court’s exercise of subject matter jurisdiction over this action. The court holds that federal common law does not require a plaintiff in a �502(a)(3) action to show that he was the victim of actual fraud or wrongdoing as a prerequisite to obtaining a constructive trust. The court holds that the state and federal common fund doctrines are inapplicable when, as here, the controlling plan language clearly and unambiguously expresses that fees and cost are the sole responsibility of the participant. Accordingly, the court holds that the district court correctly refused to apply either the Texas or federal common fund doctrines to allow a deduction from the plan’s recovery of a pro rata share of Mestemacher’s attorney’s fees and costs. OPINION:Wiener, J.; Jolly and Wiener and Walter, JJ.

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