                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                       No. 10-10215                 JANUARY 18, 2011
                                 ________________________              JOHN LEY
                                                                        CLERK
                            D.C. Docket No. 9:08-cv-81403-DTKH

JOHNSON CONTROLS, INC.,
in its capacity as fiduciary for the
Johnson Controls, Inc. Welfare Plan,

lllllllllllllllllllll                                                Plaintiff - Appellee,

                                              versus

DANIEL J. FLAHERTY,
METNICK, LEVY & LONG, P.A.,

lllllllllllllllllllll                                           Defendants - Appellants.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (January 18, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      In this ERISA1 action, Appellants David J. Flaherty (“Flaherty”) and Metnick,

Levy & Long, P.A. (“Metnick”) appeal from a final order of summary judgment

entered by the district court in favor of Flaherty’s employer, Johnson Controls, Inc.

(“Johnson Controls”). Johnson Controls sought reimbursement from Flaherty,

pursuant to 29 U.S.C. § 1132(a)(3), for medical benefits that its employee benefits

plan, Johnson Controls, Inc. Welfare Plan (“the Plan”), had paid on his behalf in

connection with a bicycle injury, after Flaherty recovered settlement proceeds for the

injury from a third party. Flaherty and Metnick argue that Metnick’s attorneys’ fees

and costs incurred in obtaining the settlement -- amounting to $14,467.44 -- must be

deducted from the settlement proceeds before the funds are subject to the Plan’s

reimbursement claim.

      Section 6.06 of the Plan expressly provides, however, that when an employee

receives benefits under the Plan and thereafter recovers for his injuries from a third

party, the Plan “has the right to be reimbursed for such benefits in full,” and “no

portion of the [Plan]’s recovery shall be reduced by[] the fees or costs (including

attorney’s fees) associated with any claim, lawsuit, or settlement agreement in

connection with any recovery, without the express written consent of the Plan

Administrator.” (Emphasis added). The Summary Plan Description also plainly says


      1
          Employee Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.

                                               2
that the Plan “ha[s] the right to be reimbursed in full before any amounts (including

attorneys’ fees) are deducted from any policy, proceeds, judgment or settlement,” and

that the Plan’s “right to . . . reimbursement takes preference over any other claims

against the recovery, . . . regardless of how settlement proceeds are characterized.”

      Where the terms of an ERISA plan are clear and unambiguous -- as they are

here -- we must enforce them as written. See Zurich Am. Ins. Co. v. O’Hara, 604

F.3d 1232, 1239 (11th Cir. 2010) (holding that “full reimbursement according to the

terms of the Plan’s clear and unambiguous subrogation provision [wa]s necessary .

. . to effectuate ERISA’s policy of preserving the integrity of written plans”). The

district court correctly applied the unambiguous terms of the Plan, requiring Flaherty

to reimburse Johnson Controls for the entire amount it paid in medical expenses on

Flaherty’s behalf, without deduction for attorneys’ fees and costs.

      Accordingly we AFFIRM.




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