"It may ... be possible to add language to the plan and subrogation agreement that requires the injured party (participant/beneficiary) and the attorney to sign an agreement that makes the unpaid monies subject to subrogation to the plan into 'plan assets' and the injured party and the personal injury attorney into 'fiduciaries' (much like unpaid employer contributions can become plan assets depending on the language of the collective bargaining agreement). In such a case, it seems the plan could bring an action under ERISA Section 502(a)(2) for breach of fiduciary duty against the injured party and the attorney."  MORE >>