Here’s a follow up to my post from earlier this week regarding the attempt to amend ERISA to eviscerate the doctrine of equitable subrogation. The provision in the House bill that passed in mid-December that gives so much heartburn was added in the very last amendment to the bill before the floor debate. There was no reference to it in the House bill as introduced or in the version of the bill that reported out of the two committees in which the bill was heard before the final vote. It was, quite literally, a last minute surprise. The Senate version of the bill does not contain any provision attempting to alter the "equitable relief" provision of ERISA found at 29 U.S.C. Sec. 1132(a)(3).
When Congress reconvenes in a few weeks, a conference committee of selected members of both the Senate and House will be appointed to hammer out the differences between the two versions of the legislation. That will be the last opportunity to get this bit of terrible special interest legislation removed or modified.
I’ve spoken to a number of attorneys who practice in the ERISA and personal injury arenas about this proposed legislation in the last few days. Almost all agree that if the House version of the bill passes it will have the effect of eliminating or significantly reducing the financial incentive of many people to bring meritorious personal injury cases. This amendment to ERISA will have the effect of undermining the concept that responsibility to compensate for a loss should rest with the person who acted wrongfully in causing that loss.