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From Roger Baron: Revictimization of Personal Injury Victims By ERISA Subrogation

Reprinted with permission from Roger Baron

“Subrogation on personal injury claims by a health insurer was universally prohibited by law when Congress enacted ERISA in 1974.  Seizing upon the notion of ERISA preemption, ERISA plans and related insurers have manufactured the right of reimbursement (or subrogation) without regard to the impact on the victims.  The unique history of this phenomenon and the need for judicial oversight are addressed in this article.  The recent decision by the 3rd Circuit in US Airways v. McCutchen is highlighted as providing a solid basis for other federal courts to follow.”


Roger Baron

School of Law

University of South Dakota


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