The recovery of damages in a personal injury action may be subject to what are known as  “reimbursement liens” or “subrogation liens” brought by the insurance provider of the injured party.  Such liens are especially common when the insurance provider is governed by ERISA. ERISA is the Employee Retirement Income Security Act of 1974, 29 USC 1001, et seq. which governs most employee health plans.  Current laws allow ERISA governed insurance providers to be reimbursed for medical cost paid through its insurance coverage. However, some cases stand for the proposition that the injured party should be “made whole” prior to reimbursing the provider.

The case of Barnes v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan” the court held that “it is a general equitable principle of insurance law that, absent an agreement to the contrary, an insurance company may not enforce a right to subrogation until the insured has been fully compensated for her injuries, that is, has been made whole.” Barnes , 64 F.3d 1389, 1395 (9th Cir.1995).

Mississippi courts recognize the “Made Whole Doctrine”.  In the case of Hare v. State, the Court defined it as “the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.” Hare, 733 So.2d 277 (Miss.1999).

If the defendant has a limited policy, and the plaintiff is not going to be made whole by the settlement, the argument can be made that to the settlement does not fully compensate your client for their injuries or damages.  If the plane language of the contract states otherwise, such arguments are void.  However, if the plan language is silent on this issue and does not waive this defense, this argument should be available.