National Association of Subrogation Professionals (NASP)

National Association of Subrogation Professionals (NASP)

Press Release from NASP Amicus Committee:

CGI v. Rose

Last year, NASP authored an amicus brief before the Ninth Circuit Court of Appeals supporting the plan in CGI Technologies and Solutions, Inc. v. Rose. Today, the Ninth Circuit release a decision in that case which is adverse to the subrogation industry.  Specifically, the Ninth Circuit held that district courts could refuse to enforce clear plan language of an ERISA plan if it determined that enforcement of the language was not appropriate under the circumstances.   In the Rose case, the Ninth Circuit remanded the case back to the district court to determine whether it was “appropriate” to enforce language that clearly disavowed the make-whole doctrine.

In issuing its opinion, the Ninth Circuit Court of Appeals adopted the rationale used by the Third Circuit in US Airways, Inc. v. McCutchen, 663 F.3d 671 (3rdCir. 2011).  US Airways filed a petition for certiorari to the United States Supreme Court on the McCutchen case.  NASP (along with SIIA and the Western Pennsylvania Teamsters) authored an amicus brief supporting the petition. Coincidentally, the Supreme Court is scheduled to conference that petition tomorrow.  As such, we should know soon whether the Supreme Court will review the issue addressed in the McCutchen and Rose cases.

Kammy Poff, Amicus Committee Chair

Joseph Willis, Legislative Affairs, Chair