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Bates & Company, Inc.
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Compass
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District Court Within The Ninth Circuit Holds That Priority Language Overrides the Make-Whole Rule
Clear Direction [Guidance Overview] Sept. 28, 2009
Excerpt: A recurring issue for health plan subrogators is what language is sufficient to override the make whole rule. On the one hand, Circuits like the Fifth Circuit have held that no particular language is required to overcome the make whole rule. In the Fifth Circuit (and others like it), plan language simply providing for 100% recovery is sufficient. On the other hand, some Circuits like the Eleventh Circuit require that a health plan specifically disclaim the make whole rule by saying something to the effect that the plan can recover 100% of the medical expenses paid even if the member has not been made whole.
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