J-E01003-17
                                    2017 PA Super 340


    CAROLYN RICKARD, ADMINISTRATRIX                     IN THE SUPERIOR COURT OF
    OF THE ESTATE OF WILLIAM RICKARD,                         PENNSYLVANIA
                DECEASED

                               Appellant

                          v.

AMERICAN NATIONAL PROPERTY AND
CASUALTY COMPANY

                                                              No. 774 WDA 2015


                    Appeal from the Order Entered April 28, 2015
                 In the Court of Common Pleas of Allegheny County
                        Orphans' Court at No(s): 6805-2014


BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON,
        DUBOW, MOULTON, and SOLANO, JJ.

CONCURRING OPINION BY BOWES, J.:                            FILED OCTOBER 25, 2017

        I reach the same result as the majority, but without reliance upon

what I perceive as Administratrix’s arbitrary characterization of the UIM

claim as one for wrongful death.1              In my view, the Plan simply failed to

establish    a    valid    subrogation     lien   against    the   UIM   proceeds   that

Administratrix recovered.



____________________________________________


1 Administratrix did not file a formal wrongful death action against the
insurer seeking the UIM benefits. Nor do I believe that she could have. A
wrongful death claim is one statutorily authorized against a third-party
tortfeasor. The UIM claim herein was a contract claim pursuant to an
insurance policy.
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          I agree with my distinguished colleagues that collateral estoppel is

inapplicable. The issue before the bankruptcy court was not identical to the

issue before us. The bankruptcy court found that the Plan had a lien against

Mr. Rickard’s projected UIM recovery based on his undisputed status as a

“Covered Individual,” his receipt of Plan benefits, and his concession that the

Plan’s interest in the UIM recovery was superior to his own. The real dispute

in that proceeding focused on whether counsel’s claim for attorney fees was

superior to the Plan’s lien. The bankruptcy court concluded it was not and

refused to approve the proposed UIM settlement. Mr. Rickard died two days

later without consummating the settlement or recovering the UIM funds.

          Mrs. Rickard made a claim for the UIM benefits under the auspices of

the Wrongful Death Act, 42 Pa.C.S. § 8301, and ANPAC issued a check.

Although I do not believe the label she assigned to the claim controls or that

it   is    material   to   our   disposition,   the    Plan   did   not   challenge   her

characterization of the claim as one for wrongful death. Consequently, this

Court addressed the question as framed by Administratrix: whether a

wrongful death beneficiary’s recovery is subject to subrogation for medical

benefits paid on behalf of the decedent during his lifetime.               The majority

answers that question in the negative.                I submit that the real issue is

whether UIM benefits recovered by Administratrix under the ANPAC policy

were subject to subrogation by the Plan, and arrive at the same negative

answer.

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J-E01003-17



     Under either scenario, collateral estoppel does not apply.             The

bankruptcy court did not determine whether the Plan was entitled to

subrogation against amounts recovered by Administratrix. Preliminarily, we

do not know whether the UIM benefits paid to Administratrix represent a

recovery to which she was entitled in her own right under the ANPAC policy,

or whether it represented payment on behalf of her deceased husband.

Since the ANPAC policy is not contained in the record, and that issue was not

developed,    that   question   remains   unanswered.   In   any   event,   the

bankruptcy court did not address whether Mrs. Rickard was a “Covered

Individual,” whether she received benefits from the Plan, or whether her

recovery of the UIM benefits was subject to subrogation, and thus, collateral

estoppel has no application.

     The Plan argues, in the alternative, that under U.S. Airways v.

McCutchen, 133 S.Ct. 1537 (2013), the Plan documents controlled the right

to subrogation and that its lien attached to the UIM recovery at the moment

the bills were paid.     However, we cannot verify that claim as the Plan

documents are not contained in the certified record.      We know from the

bankruptcy court’s opinion, however, that the Plan documents provided that

the Plan was subrogated to “any sums recovered by the Covered

Individual or their representative either by judgment, settlement, or any

other means[.]” (emphasis added).         Under the terms of the self-funded

ERISA Plan, it made no difference whether these sums were designated as

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J-E01003-17



wage loss, pain and suffering, or reimbursement for medical bills. The Plan

apparently stated that sums recovered “shall be applied first to reimburse

the [Plan] in full and therefore shall be deducted first from any recovery by

or on behalf of the Covered Individual.”         The use of the term “sums

recovered” would tend to refute the Plan’s position that its lien attached to

the UIM benefits at the moment the bills were paid. In any event, it was the

Plan’s burden to establish that Administratrix recovered the UIM benefits

either as a covered individual or as a representative of a covered individual,

in order to be entitled to subrogation. It failed to do so.

      Finally, the Plan cites Gillette v. Wurst, 937 A.2d 430 (Pa. 2007), for

the proposition that the surviving spouse in a wrongful death action cannot

avoid the payment of a valid subrogation lien.        In contrast to the facts

herein, the surviving spouse in Gillette received workers’ compensation

death benefits and the insurer had a subrogation interest in any funds she

recovered thereafter. She subsequently settled a wrongful death action and

attempted to disclaim her interest in the recovery in order to defeat the

workers’ compensation insurer’s subrogation interest.         The Supreme Court

held that she could not avoid the workers’ compensation insurer’s

subrogation interest in sums she recovered under the wrongful death act by

disclaiming her interest in favor of the remaining statutory beneficiaries.

      In this case, as distinguished from Gillette, the Plan failed to prove

that Administratrix received Plan benefits, or that she was a “covered

                                      -4-
J-E01003-17



individual” or a covered individual’s representative under the Plan for

purposes of a subrogation lien.   I submit that the ANPAC insurance policy

and the Plan documents, rather than the designation of the claim as one for

wrongful death, controlled whether the Plan had a valid subrogation lien

against the UIM proceeds recovered by Administratrix.       The Plan did not

reference those documents in establishing its right to subrogation, nor did it

include them in the certified record.   Since the Plan sought to enjoin the

proposed distribution, it had the burden to prove a valid subrogation lien,

which it failed to do.   For these reasons, I concur in the result of the

majority.

      Judges Olson, Dubow and Solano join this concurring opinion.




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