Opinion
18557/05.
Decided on May 8, 2007.
Plaintiff's Attorney: Eric Turkewitz, Esq.
Aetna's Attorney: Keith R. McMurdy, Esq.
VW's Attorney: Wilson, Elser, Moskowitz, Edelman Dicker.
The motion by order to show cause by plaintiff for an Order extinguishing the purported liens and/or subrogation rights asserted by the Rawlings Company and Aetna (hereinafter collectively, "Aetna"), is granted. The cross-motion by defendant VW Credit, Inc. (hereinafter "VW"), for an order extinguishing the purported liens and/or subrogation rights asserted by the Rawlings Company and Aetna and for an order finding that VW is not accountable for any purported liens and/or subrogation rights asserted by Aetna, is likewise granted.
The cause of action arises out of injuries sustained by the plaintiff on July 9, 2005 in the northbound direction of the Bruckner Expressway in Bronx County when the vehicle plaintiff was riding in was struck in the rear by the vehicle driven by defendant Malavet and owned by defendant VW Credit, Inc.
This matter is in the pre-trial stage. Nevertheless, plaintiff moves for an order extinguishing the purported lien and/or subrogation rights asserted by Aetna. Plaintiff asserts that Aetna claims a contractual lien but has failed to provide a copy of the contract signed by the plaintiff which contains specific language as to Aetna's purported lien. Moreover, plaintiff asserts that Aetna is not entitled to an equitable subrogation claim against plaintiff's recovery because under Humbach v. Goldstein , 229 AD2d 64 (2nd Dept. 1997), a health care insurer cannot have a greater right in equitable subrogation than its insured has at law.
Aetna opposes the motion and cross-motion and asserts that Aetna was at all times an administrator of an employee welfare benefit plan sponsored by Cobra Direct Electronic, for the benefit of its employees and their dependents. Aetna asserts that said plan is a qualified employee benefit plan and is subject to the provisions, terms and limitations of the Employee Retirement Income Security Act (ERISA). Aetna avers that the plan maintains rights to subrogation and reimbursement to the extent that it has made payments on behalf of participants in the plan. Aetna further cites to a provision which it claims is listed in its policy and which states that the HMO retains the right to repayments if it provides health care benefits under "this Certificate to a Member for injuries or illness for which another party is or may be responsible. . ." (Aetna, para. 5).
Aetna further contends that after August 1, 2005, Aetna made payments to or on behalf of the plaintiff in the amount of $19,183.88 and that C.P.L.R. § 4545 is inapplicable and is rendered moot by application of the federal law of ERISA. Aetna asserts that C.P.L.R. § 4545 does not impact its ability to make recovery of its subrogation and reimbursement interest. The only exhibit annexed to Aetna's opposition papers was a computer printout of payments alleged to have been paid out on plaintiff's behalf, which total $19,183.88.
As plaintiff and cross-movant point out, Aetna has failed to provide the plaintiff or this court with a copy of the policy, signed by the plaintiff, which contains the purported terms of its entitlement to repayment for benefits provided to plaintiff for injuries or illness which another party is responsible for. Moreover, Aetna cited a provision from that policy in its opposition papers but did not provide this court with a copy of the policy it was citing from. Plaintiff made several requests of Aetna to provide a copy of the insurance policy agreement to determine whether or not Aetna is in fact entitled to assert the lien it is claiming. However, Aetna only provided plaintiff with a "sample document" that was "for illustrative purposes only." (Plaintiff's Exhibit E).
Since Aetna failed to provide this court with the relevant insurance policy which it claims the plaintiff agreed to, plaintiff's motion to extinguish Aetna's purported lien, is granted.
With respect to the cross-motion of VW Credit, Aetna asserts that subrogation, as a concept in law, precludes double recovery. Therefore, since Aetna and the health plan have suffered a loss as a result of the alleged negligence as a tortfeasor, it is entitled to recoup that loss.
In Humbach v. Goldstein , 229 AD2d 64 (2nd Dept. 1997), the court stated, "Pursuant to principles of equitable subrogation, an insurer, having paid losses of its insured, is placed in the position of its insured'. . . That right arises once the insurance carrier makes payment on behalf of its insured. . . However, the carrier, as subrogee, stands in the shoes of the policyholder. . . Thus, the insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party may have asserted against its insured." Id . at 66-67. The court further went on to state, "The intervention of various medical providers could create an adversarial posture between carriers and plaintiffs, and could unduly delay the determination of such actions." Id at 68.
Since Aetna stands in the shoes of the plaintiff, Aetna cannot have a greater right than the plaintiff in this action and can only recover if the plaintiff recovers against the defendants. However, since Aetna has failed to prove that it has a right to be reimbursed if plaintiff recovers against the defendants, Aetna has not established its right to recoup its purported loss as against the defendants. Accordingly, the cross-motion by VW Credit, Inc., is granted.
This constitutes the decision and order of this court.