General Obligations Law §5-335 prohibits, with only a handful of exceptions, health care plans from asserting claims for reimbursement or subrogation claims against personal injury plaintiffs' recoveries. In enacting the law, the Legislature expected that, in most cases, health plans' claims against plaintiffs' recoveries would simply be extinguished. This result has not come to pass. Health care plans have attempted to carve out a dizzying array of exceptions to the anti-subrogation provision, primarily by relying on various provisions of federal law.1
In this column, we discuss the exception to the General Obligations Law that is most firmly grounded in federal law: the self-funded ERISA plan. We explain why self-funded ERISA plans are not subject to the GOL provision; what rights these plans have; and what personal injury practitioners should be aware of when representing a client covered under such a plan.
