Reprinted with Permission from Roger Baron
The personal injury attorney in ACS Recovery Services v. Griffin had been successful in sheltering a settlement fund from a lien assertion made by ACS Recovery Services. The federal magistrate held that the reimbursement claim was barred and the federal trial judge adopted the magistrate’s recommendation. Subsequently a three judge panel of 5th Circuit affirmed. The 5th Circuit granted a rehearing en banc and today handed down its decision overturning the panel’s decision. Although the basis for the victim’s strategy was sound under Knudson and other rulings, the 5th Circuit en banc ruling described this strategy as a “ruse” and ruled for the plan. The concluding paragraph of the court’s opinions states:
[Larry Griffin] and his attorneys chose … to disregard the Plan’s equitable lien by agreement, as they attempted to divorce Larry and the Trust from possession and control of the settlement funds. Against this ruse, ACS asserts an equitable claim for restitution and seeks the equitable remedy of a constructive trust over the proceeds of the settlement fund as they come into the Trust’s possession. As we have explained, this claim is well supported in law.
Click HERE to view the en banc ruling by the 5th Circuit.