PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

NELDA WILSON, et al., 

 Plaintiffs, 

v. 

NATHAN COX, 

 Defendant. 

Case No. 3:15-cv-59-SI 

OPINION AND ORDER

Steven Goldberg, 3525 SE Brooklyn Street, Portland, OR 97202; and Talia Y. Stoessel, 

BENNETT, HARTMAN, MORRIS & KAPLAN, LLP, 210 SW Morrison Street, Suite 500, Portland, 

OR 97204. Of Attorneys for Plaintiffs. 

Michael G. Smith, THE GATTI LAW FIRM, 1781 Liberty Street SE, Salem, OR 97302. Of 

Attorneys for Defendant. 

Michael H. Simon, District Judge.

Plaintiffs are Trustees of AGC-International Union of Operating Engineers Local 701 

Health and Welfare Trust Fund (“Trust Fund”). The Trust Fund is a trust created pursuant to 

collective bargaining agreements. The collective bargaining agreements, the Health & Welfare 

Plan Summary Plan Description (most recently dated March 2010) and its Amendments, and the 

Wraparound Plan Document, which incorporates the terms of the Summary Plan Description 

among other documents (most recently dated July 1, 1995), set forth the provisions of the “Trust 

Fund Plan.” At all relevant times, Defendant Nathan Cox (“Cox” or “Defendant”) had medical 

insurance coverage under the Trust Fund Plan. 

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PAGE 2 – OPINION AND ORDER 

 Plaintiffs bring this action to enforce the terms of the Trust Fund Plan, which constitute 

an Employee Benefit Plan, under the civil enforcement section of the Employee Retirement 

Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(3). Plaintiffs seek a declaratory judgment 

that they are entitled to a constructive trust on behalf of the Trust Fund Plan for a portion of the 

settlement funds Cox received for a personal injury settlement obtained after an automobile 

accident. The settlement funds currently are being held in trust by Cox’s attorney. Plaintiffs 

assert that the Trust Fund Plan paid medical expenses on behalf of Cox for injuries Cox suffered 

that were the responsibility of a third party and for which Cox received a personal injury 

settlement. Cox responds that the relevant medical expenses were not caused by his automobile 

accident and thus were not the responsibility of a third party. 

Both Parties filed motions for summary judgment. For the reasons discussed below, 

Plaintiffs’ motion is denied and Defendant’s motion is granted. 

STANDARDS 

A. Summary Judgment 

A party is entitled to summary judgment if the “movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view 

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th 

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling 

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of 

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

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PAGE 3 – OPINION AND ORDER 

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for 

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted). 

Where parties file cross-motions for summary judgment, the court “evaluate[s] each 

motion separately, giving the nonmoving party in each instance the benefit of all reasonable 

inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) 

(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 

674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the] 

same standard.”). In evaluating the motions, “the court must consider each party’s evidence, 

regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 

F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, 

the moving party need only prove that there is an absence of evidence to support the non-moving 

party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the 

non-moving party bears the burden of designating “specific facts demonstrating the existence of 

genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed 

that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as 

to the material facts at issue. Matsushita, 475 U.S. at 586. 

B. ERISA Civil Enforcement 

ERISA protects employee pensions and other benefits by providing insurance to pension 

plans, specifying certain plan characteristics, and establishing general fiduciary duties applicable 

to the management of both pension and nonpension benefits. Varity Corp. v. Howe, 516 

U.S. 489, 496 (1996). In 29 U.S.C. § 1132(a)(3), Congress provided plan fiduciaries with the 

ability to enforce the terms of the plan. Gabriel v. Alaska Pension Fund, 773 F.3d 945, 954 

(9th Cir. 2014). “Section 1132(a)(3) provides that ‘[a] civil action may be brought . . . (3) by a 

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PAGE 4 – OPINION AND ORDER 

participant, beneficiary, or fiduciary . . . (B) to obtain other appropriate equitable relief (i) to 

redress [any act or practice which violates any provision of this subchapter or the terms of the 

plan] or (ii) to enforce any provisions of this subchapter or the terms of the plan.’” Id.

(alterations in original) (quoting 29 U.S.C. § 1132(a)(3)). In such an action, a plaintiff “must 

prove both (1) that there is a remediable wrong, i.e., that the plaintiff seeks relief to redress a 

violation of ERISA or the terms of a plan; and (2) that the relief sought is appropriate equitable 

relief.” Id. (quotation marks and citations omitted). “A claim fails if the plaintiff cannot establish 

the second prong . . . regardless of whether ‘a remediable wrong has been alleged.’” Id. (quoting 

Mertens v. Hewitt Assocs., 508 U.S. 248, 254 (1993)). 

C. Administrative Record 

Plaintiffs note in their supplemental brief filed in response to the Court’s request, that the 

Court’s review is limited to the administrative record. Typically, courts considering challenges to 

discretionary decisions of insurers under ERISA are limited to the administrative record before 

the insurer at the time the insurer made its decision. See Pac. Shores Hosp. v. United Behavioral 

Health, 764 F.3d 1030, 1041 (9th Cir. 2014). Here, however, Plaintiffs did not lodge an 

administrative record with the Court. Instead, Plaintiffs submitted numerous documents 

supporting their summary judgment filings without identifying which documents, if any, were 

part of the administrative record and which portions of the administrative record were not 

provided to the Court. Plaintiffs also requested that Defendant stipulate to the evidentiary 

foundation and authenticity of numerous documents that Plaintiffs used in their summary 

judgment submissions, and agreed similarly to stipulate to documents that Defendant used in his 

summary judgment submissions. Given that many of the documents submitted by Plaintiffs were 

obtained by them through discovery in this action, it does not appear that Plaintiffs’ submissions 

were limited to the administrative record. 

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PAGE 5 – OPINION AND ORDER 

The Court declines to delay this action by ordering Plaintiffs to lodge the administrative 

record. The Court considers all submissions in this case, even if they are not within the 

administrative record, for two reasons. First, because Plaintiffs argue judicial estoppel, which 

does not involve any discretionary decisions under ERISA, the Court may look outside the 

administrative record in considering that argument. Second, regarding the parties’ dispute 

relating to Plaintiffs’ “discretionary” decision that Defendant’s back surgeries and related 

expenses fall under the third-party provision of the Trust Fund Plan, although the Court would 

typically be limited to the administrative record in considering this issue, the Court finds that to 

the extent all of Cox’s medical records relating to his back surgeries and related treatment, 

including the four independent medical evaluations, might not have been included in the 

administrative record, then expansion of the administrative record would be appropriate. 

Because this dispute centers on whether Cox’s injuries for which the Trust Fund paid 

medical bills were the responsibility of a third party and whether the Trustees appropriately 

exercised their discretion by insisting that Cox’s settlement proceeds be provided to the Trust 

Fund, the Court finds it appropriate to consider all of Cox’s medical records relating to the 

disputed injuries, regardless of whether they were in the administrative record. This will enable 

the Court effectively to consider whether the Trustees abused their discretion. See id. (noting that 

to review abuse of discretion, a court must “consider all of the relevant circumstances in 

evaluating the decision of the plan administrator. A straightforward abuse of discretion analysis 

allows a court to tailor its review to all the circumstances before it” and concluding that “where 

actual medical records would be helpful to determining the accuracy of the medical facts upon 

which the administrator makes its coverage determination—expansion of the record in the 

district court is appropriate” (emphasis in original) (quotation marks omitted)).

Case 3:15-cv-00059-SI Document 72 Filed 06/07/16 Page 5 of 26
PAGE 6 – OPINION AND ORDER 

BACKGROUND 

At all relevant times, Cox had medical insurance coverage under the Trust Fund Plan. 

That plan contains a provision entitled Third Party Liability, which states, in part: 

The Plan shall not provide benefits for any injury or illness if any 

third party or parties (including an insurance company) is or may 

be responsible for the injury or illness or for payment or 

reimbursement of any expenses arising out of the injury or illness. 

* * * 

If a covered person or any other person claims any benefits under 

this Plan for any treatment or service or loss of income because of 

an injury or illness with respect to which a third party is or may be 

responsible, then the following shall apply: 

* * * 

x Any person who receives payment from any third party or 

parties (whether by lawsuit, settlement, or otherwise) 

because of a covered person’s injury or illness shall 

immediately and first reimburse the Plan, or cause the Plan 

to be reimbursed, for the full amount of all benefits 

advanced or payments otherwise made under this Plan for 

treatment, service, or loss of income with respect to the 

injury or illness (or, if less, the full amount of the payment 

received from the third party). The Plan shall have a first 

right of reimbursement out of the proceeds of any such 

recovery, without reduction for attorney fees or other costs 

related to the recovery, and regardless of whether the 

covered person and his or her spouse and dependents are 

made whole by the recovery. 

Dkt. 53-1 at 2-4. 

This provision also provides that: 

The Plan shall have a first security interest and a lien on any 

payment made to or on behalf of a covered person . . . from any 

third party or parties to the full extent of the benefits advanced or 

otherwise paid under the Plan for any treatment . . . because of the 

injury . . . for which the third party is or may be responsible. 

Id. at 4. 

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PAGE 7 – OPINION AND ORDER 

In November 2007, Cox was involved in a motor-vehicle accident in which he sustained 

injuries, including back injuries. Cox received medical treatment for those injuries. In 

September 2008, Cox saw a neurosurgeon for his back condition. On October 2, 2008, Cox was 

involved in a second motor-vehicle accident that was not his fault and in which he also sustained 

injuries. Cox believed that the second automobile accident caused him additional back pain. The 

insurance carrier for the negligent driver in the October 2008 accident was American Family 

Insurance (“American Family”). Cox’s personal automobile insurance carrier was Country 

Preferred Insurance Company (“Country”). 

In September 2009, Cox received cervical discograms. He initially submitted the bills for 

the discograms to his personal automobile insurance carrier, Country, which denied 

reimbursement. County claimed the discograms were not related to the 2008 automobile 

accident, but were instead related to Cox’s pre-existing back condition. Cox later submitted the 

discogram bills to the Trust Fund. The Trust Fund denied coverage for Cox’s discograms 

because Cox did not submit the bills within one year of the date of the treatment. 

On March 2, 2011, and March 9, 2011, Cox underwent two spinal surgeries performed by 

V. James Makker, M.D. Dkt. 52-12 at 1-4. Dr. Makker had examined Cox and recommended 

immediate surgery. Id. at 9. Dr. Makker opined that the “major contributing cause of [Cox’s]

current thoracic and lumbar conditions and need for treatment is most likely the combination of 

his two motor vehicle accidents on 11-16-07 and 10-2-08.” Id. Cox submitted the surgery bills to 

the Trust Fund. The Trust Fund paid for Cox’s back surgeries. 

On August 26, 2011, Cox’s attorney sent a letter to the Trustees, the Trust Fund Plan 

administrator (Regence Blue Cross Blue Shield), Country, and American Family. In this letter, 

Cox asserted through counsel that his 2008 automobile accident necessitated Cox’s two back 

Case 3:15-cv-00059-SI Document 72 Filed 06/07/16 Page 7 of 26
PAGE 8 – OPINION AND ORDER 

surgeries. Cox requested a settlement amount of $450,000 from American Family. Cox also 

requested that the Trust Fund pay some outstanding medical expenses. The letter from Cox’s 

attorney further noted that: 

I assume that Blue Cross and/or Welfare Trust will elect to assess a 

lien for all amounts it has paid and will pay against settlement 

proceeds collected. We will treat your interests to date and any 

amounts that are paid on the outstanding medicals as part of a 

contractual and/or statutory lien which we will need to resolve 

once the claims against American Family are resolved. 

Dkt. 52-2 at 2. 

On September 20, 2011, counsel for the Trust Fund responded by sending Cox’s attorney 

a letter that attached two agreements, one for counsel and one for Cox, and requiring that those 

agreements be signed before the Trust Fund would pay the requested outstanding medical 

expenses on behalf of Cox. Dkt. 52-3. Counsel for the Trust Fund noted that before the 

August 26, 2011 letter, the Trust Fund was unaware that Cox’s surgeries and other medical 

expenses were caused by a motor vehicle accident. Both Cox and his attorney signed the required 

documents. Dkt. 52-4. 

The agreement signed by Cox explains the Trust Fund’s rights to reimbursement for paid 

medical expenses that are or may be the responsibility of a third party. The agreement provides, 

in relevant part: 

The Plan does not provide benefits for any injury or illness for 

which a third party is or may be responsible, except as provided 

below. If you (or your spouse or any dependent) has a claim or 

right for indemnification, damages or any other payment against 

any third party or parties (including an insurance carrier) who is or 

may be responsible for any injury or illness, you are not entitled to 

any benefits from the Plan for that illness or injury. If you satisfy 

the Plan’s requirements, it will, however, advance benefits to you. 

When you recover from the third party, you will be required to 

reimburse the Plan for any payments that have been advanced. 

* * * 

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PAGE 9 – OPINION AND ORDER 

When any recovery is obtained from a third party or insurance 

company, whether as a result of a settlement, arbitration award, 

court judgment or in any other way, an amount sufficient to satisfy 

the Plan’s reimbursement amount (the amount of benefits 

advanced on your or your spouse or any dependent’s behalf) will 

be paid into a trust account and held there until the Plan’s claim is 

resolved by mutual agreement, arbitration or court order. If the 

funds necessary to satisfy the Plan’s reimbursement amount are not 

placed in trust, the injured person shall be personally liable for any 

loss the Plan suffers as a result. 

Any person who receives payment from any third party or parties 

because of your injuries or illness shall immediately and first 

reimburse the Plan, or cause the Plan to be reimbursed, for the full 

amount of all benefits advanced or payments otherwise made 

under this Plan for treatment, service, or loss of income with 

respect to the injury or illness (or, if less, the full amount of the 

payment received from the third party). The Plan shall have a first 

right of reimbursement out of the proceeds of any such recovery, 

and regardless of whether you, your spouse, and your dependents 

are made whole by the recovery. 

Dkt. 52-4 at 2-3. 

 The document signed by Cox’s attorney is an agreement regarding the Trust Fund’s right 

to reimbursement from any settlement proceeds. In relevant part this agreement states: 

Under the terms of this agreement, you agree to reimburse the 

Plan, to the extent of any recovery you receive, for the full amount 

of benefits provided to or on behalf of your client witl1 respect to 

the illness or injury for which the third party is or may be 

responsible. You agree to reimburse the Plan immediately after 

receipt or collection of the recovery, regardless of whether your 

client is made whole by the recovery and before any disbursement 

of funds to your client. 

If any question or dispute arises regarding the amount owed to the 

Plan, any monies received from the third party or his or her insurer 

wilt be held in your client’s trust account until the question or 

dispute is resolved. 

In consideration of your signing this agreement, the Plan agrees to 

allow a deduction from any recovery for attorney fees or costs 

equal to the lesser of the actual fees and costs percentage or onethird of any recovery. 

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PAGE 10 – OPINION AND ORDER 

Dkt. 52-4 at 7. 

Cox filed a lawsuit against the driver in the October 2008 accident, who was insured by 

American Family. In November 2011, Cox responded to discovery requests in that lawsuit. In 

responding to these discovery requests, Cox asserted that his discograms and back surgeries, 

among other medical expenses, were caused by the 2008 accident and were the responsibility of 

the at-fault motorist. 

To assess Cox’s claim against its insured, American Family noted that it would require 

Cox undergo an independent medical evaluation. Over the course of pursuing and litigating his 

automobile accident claims, Cox underwent three independent medical evaluations and one 

independent medical records review. The first evaluation was on September 7, 2009, and was 

performed by KC Snellgrove, D.C. Dkt. 54-1 at 105-128. Dr. Snellgrove discussed Cox’s 

accident, treatment, medical records, and examination and concluded that “Mr. Cox’s current 

symptoms are not causally related to the October 2, 2008 minor collision. . . .Treatment beyond 6 

weeks cannot be substantiated by any clinical rationale or standards of care.” Id. at 122-23. 

On February 24, 2010, Cox underwent a second independent medical evaluation, which 

was performed by Bradley Bergquist, M.D., a neurosurgeon. Id. at 130-40. Dr. Bergquist stated 

that “[t]he MRI scans of the spine that were done prior to October 2, 2008 document 

degenerative change as described in the radiology section. There is no essential difference 

between the studies done before and after [the accident].” Id. at 138. Dr. Bergquist attributed 

Cox’s condition to “age-related degenerative change.” Id. at 137. 

On June 28, 2013, after the two back surgeries, Cox’s medical records were provided to 

Richard Rosenbaum, M.D., a neurologist, who performed an independent medical records 

review. Id. at 142-48. After reviewing Cox’s records, Dr. Rosenbaum concluded that “[t]he 

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PAGE 11 – OPINION AND ORDER 

surgeries of 2011 were unnecessary.” Id. at 147. Dr. Rosenbaum also concluded that “the motor 

vehicle accident of 2008 did not, in terms of medical probability, necessitate the back surgery.” 

Id. 

On October 7, 2013, Cox was examined by Leslie D. McAllister, M.D., a neurologist, for 

another independent medical evaluation. Id. at 150-65 and Dkt. 54-2 at 1-6. Dr. McAllister 

concluded that her examination of Cox and his medical records supports “a period of palliative 

treatment after the 2008 accident of two to three months at most to include chiropractic, 

massage, or acupuncture.” Dkt. 154-2 at 5. Dr. McAllister further opined that the surgeries were 

not related to the automobile accident. Id.

On October 5, 2012, counsel for Cox sent a demand letter both to Country and to counsel 

for Plaintiffs. Counsel for Cox demanded $100,000 from Country for under-insured motorist 

coverage and demanded that the Trust Fund pay Cox’s outstanding medical bills. Counsel for 

Cox also requested that Country approve a settlement between Cox and American Family in the 

amount of $45,000. Country agreed to the settlement of $45,000, and specifically noted that 

because Cox had “settled light” (i.e., settling for less than American Family’s insured’s policy 

limits), Cox must have been made whole by the settlement. 

On January 26, 2013, Cox settled with the American Family and the at-fault motorist for 

the 2008 accident for a single payment of $45,000. As part of this settlement, Cox released any 

and all claims against the at-fault motorist. The proceeds from this settlement are currently being 

held in trust by Cox’s attorney.

On February 11, 2014, Cox’s attorney forwarded to Plaintiffs’ counsel the results of the 

independent medical evaluations, adding that Cox’s surgeon, Dr. Makker, is no longer licensed 

and apparently has left the country. On February 19, 2014, Cox’s attorney wrote a letter to 

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PAGE 12 – OPINION AND ORDER 

Plaintiffs’ counsel, explaining that many doctors had seen Cox and determined that his back 

surgeries were not caused by the motor vehicle accidents, and that Cox’s surgeon had been 

prosecuted for performing unnecessary surgeries and had lost his medical license. 

On October 16, 2014, counsel for the Trust Fund sent an email to Cox’s counsel 

requesting a letter explaining Cox’s position. Dkt. 54-1 at 53. Counsel for the Trust Fund also 

stated that Cox’s letter needs to “assure the trustees that [Cox] will argue that what the Trust paid 

for – the surgery – was related to the [car accident].” Id.

1

 On November 24, 2014, Cox’s attorney 

responded with a detailed letter. Dkt. 54-1 at 46-51.2 This letter addressed numerous issues, 

including: (1) informing the Trustees that the arbitration with Country has been indefinitely 

postponed; (2) noting that the overwhelming medical evidence is that the back surgeries were not 

 1 The email actually states that the Trust Fund wants assurance that Cox “will argue that 

what the Trust paid for – the surgery – was related to the surgery.” Dkt. 54-1 at 53 (emphasis 

added). It appears from the context of the parties’ communications, however, that stating that the 

surgery was related to the “surgery” was a scrivener’s error and that what was meant is that the 

surgery was related to the car accident. 

2 Plaintiffs object to the admission of their counsel’s October 16, 2014 email and Cox’s 

attorney’s November 29, 2014 letter as inadmissible settlement communications under Federal 

Rule of Evidence 408(a)(2). Under Rule 408(a)(2), settlement negotiations may not be admitted 

to prove or disprove the validity or amount of a disputed claim or to impeach by a prior 

inconsistent statement or a contradiction. Settlement negotiations may, however, be admitted for 

“another purpose,” including proving bias or negating a contention of undue delay. The Court 

considers the correspondence submitted by Cox not to prove or disprove liability, but in 

considering the appropriateness of Plaintiffs’ argument for judicial estoppel based on Cox’s 

alleged contradictory statements. The settlement negotiations are relevant to Cox’s state of mind 

and motive when he was asserting the allegedly contradictory positions and are therefore 

admissible. See Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1161-62 (9th Cir. 2007) (“In other 

words, Rule 408 is designed to ensure that parties may make offers during settlement 

negotiations without fear that those same offers will be used to establish liability should 

settlement efforts fail. When statements made during settlement are introduced for a purpose 

unrelated to liability, the policy underlying the Rule is not injured.”); Crues v. KFC Corp., 768 

F.2d 230, 233-34 (8th Cir. 1985) (holding that use by offeror to show unreasonableness of 

recipient not excluded by Rule 408 because “the rule is concerned with excluding proof of 

compromise to show liability of offeror”). Accordingly, Plaintiffs’ motion objection to the 

submission of the parties’ settlement negotiations is overruled. 

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PAGE 13 – OPINION AND ORDER 

caused by the motor vehicle accidents and that “[i]n the opinion of everyone other than the Trust, 

there exists no legally sufficient admissible evidence that either of the two surgeries the Trust 

paid for were reasonable and necessary on account of injuries sustained in the October 2, 2008 

motor vehicle collision,” Dkt. 54-1 at 46; (3) requesting that the Trust Fund participate in the 

binding arbitration with Cox and Country, arguing that the arbitration is only occurring because 

the Trust Fund insists that the back surgeries were the responsibility of the at-fault motorist, 

demands reimbursement from the accident settlement, and maintains that Cox must litigate his 

underinsured motorist claim; (4) explaining that despite Cox’s attorney agreeing to the Trust 

Fund’s demand that Cox vigorously prosecute his under-insured motorist claim, Cox’s attorney 

has come to the conclusion that there is no way to win this claim and that there is no way to 

prove that the back surgeries were the responsibility of the at-fault motorist; (5) reiterating that 

four independent medical evaluations and reviews, conducted on September 7, 2009, February 4, 

2010, June 28, 2013, and October 7, 2013, all concluded that the back surgeries were not the 

responsibility of a third party; (6) summarizing the medical evidence from 2007 through 2011 

from Cox’s treating neurosurgeon, Dr. Jordi Kellogg, that demonstrates that Cox’s surgeries

performed by Dr. Makker were not the responsibility of a third party; (7) requesting that the 

Trust Fund release its claim on Cox’s settlement if the Trust Fund is not willing to prosecute and 

prove its contention that Cox’s surgeries were the responsibility of a third party; and 

(8) attaching a compact disc containing copies of all of Cox’s medical records.

On January 5, 2015, the Trust Fund responded by email to Cox’s letter. The Trust Fund’s 

counsel reiterated the Trust Fund’s position that Cox’s $45,000 settlement “was made on the 

assumption that the spinal surgeries were caused by the 2008 accident.” Dkt. 54-1 at 56. Thus, 

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PAGE 14 – OPINION AND ORDER 

the Trust Fund demands, Cox must reimburse the Trust Fund from that settlement. Id. One week 

later, the Trust Fund filed this action. Dkt. 1. 

While this lawsuit was pending, a binding arbitration was held between Cox and Country, 

without Plaintiffs’ participation. The arbitrator ruled that Cox’s back surgeries were not 

necessitated by the 2008 car accident. Dkt. 54-8 at 31-34. The arbitrator did not find persuasive 

the limited medical evidence that supported a conclusion that Cox’s back surgeries and ongoing 

back treatments were required by the car accident; instead, the arbitrator found persuasive the 

overwhelming medical evidence to the contrary. Id. The arbitrator found that the 2008 car 

accident caused only “moderate and temporary aggravation of [Cox’s] previous back 

symptoms.” Id. at 34. The arbitrator did not find any medical treatments after May 2009 were 

proven to be necessitated by the car accident. 

DISCUSSION 

A. Plaintiffs’ Motion for Summary Judgment

Plaintiffs argue that summary judgment should be granted in their favor. Plaintiffs argue 

they are entitled to summary judgment because: (1) Cox is judicially estopped from arguing that 

his back surgeries and other medical expenses were not the responsibility of a third party; and 

(2) the Trustees appropriately exercised their discretionary authority under the Trust Fund Plan 

in determining that Cox’s back surgeries and other relevant medical expenses were the 

responsibility of a third party. For the reasons discussed below, Plaintiffs arguments are 

unavailing and their motion for summary judgment is denied. 

1. Judicial Estoppel 

Plaintiffs argue that Cox is judicially estopped from arguing that his back surgeries and 

related injuries were not the responsibility of a third party. Plaintiffs rely heavily on the fact that 

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PAGE 15 – OPINION AND ORDER 

Cox and his counsel repeatedly asserted that Cox’s back surgeries were necessitated by the 

October 2008 car accident. 

The decision to impose judicial estoppel is left to the discretion of the district court. New 

Hampshire v. Maine, 532 U.S. 742, 750 (2001). In considering whether to apply the doctrine of 

judicial estoppel, district courts may consider several questions, including: 

(1) Is the party’s later position “clearly inconsistent with its earlier 

position?” (2) Did the party succeed in persuading a court to accept 

its earlier position, creating a perception that the first or second 

court was misled? and (3) Will the party seeking to assert an 

inconsistent position “derive an unfair advantage or impose an 

unfair detriment on the opposing party?”

Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (quoting New 

Hampshire, 532 U.S. at 750-51). This is not an exhaustive enumeration of the factors that a court 

may consider. New Hampshire, 532 U.S. at 751. For the reasons that follow, the Court declines 

to preclude Cox, under the doctrine of judicial estoppel, from arguing that his two back surgeries 

and later medical costs were not related to his automobile accident on October 2, 2008. 

Cox has consistently taken the position that he suffered injuries in the automobile 

accident on October 2, 2008, and that those injuries were the responsibility of a third party. 

Originally, Cox asserted that his two back surgeries were necessary because of that accident. He 

continued making this claim throughout the litigation of his automobile accident injuries, 

including at arbitration. Before this Court, however, Cox has changed his position and argues 

that the back surgeries were not caused by the automobile accident. The Court finds that Cox’s 

positions are “clearly inconsistent.” The Court, thus, turns to the second New Hampshire factor. 

The Ninth Circuit has explained that the “second New Hampshire factor—that one of the 

courts has been misled—is often dispositive.” Baughman, 685 F.3d at 1133. Judicial estoppel is 

appropriate where “a party assumes a certain position in a legal proceeding, and succeeds in 

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PAGE 16 – OPINION AND ORDER 

maintaining that position.” Id. With respect to settlements, the Ninth Circuit has explained that 

“those who ‘induce [ ] their opponents to surrender have prevailed as surely as persons who 

induce the judge to grant summary judgment.’” Baughman, 685 F.3d at 1133-34 (alteration in 

original) (quoting Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 604–05 (9th 

Cir. 1996)). Furthermore, “[w]hen a party settles a case involving false allegations or claims, the 

court is deemed to have been misled. This is because it’s the coercive power of the court—the 

judgment it might render if the case is litigated to its conclusion—that’s the driving force behind 

such settlements.” Id. at 1134. 

Cox sued and later settled with American Family for injuries arising out of the October 

2008 automobile accident. In that suit, Cox alleged that the two back surgeries were a result of 

the accident. Cox sought $450,000 in compensation for his injuries, including more than $60,000 

in medical costs for Cox’s back surgeries. Plaintiffs do not assert that Cox made materially false 

and misleading allegations without a reasonable basis in fact in order to coerce a settlement, nor 

does the record support such an inference. The record supports the conclusion that Cox 

genuinely believed that the 2008 accident necessitated his back surgeries. Thus, the Court finds 

that the Court was not misled. Cox asserted a factual position that, at the time, he believed to be 

accurate. This genuine belief, however, was incorrect. 

Although Cox asserted in his case against American Family that the accident triggered 

his need for back surgery, later independent medical evaluations, including those obtained by 

American Family, consistently determined that Cox’s back surgeries were not necessitated by 

the 2008 car accident. Thus, Cox’s settlement with American Family was for less than the 

at-fault motorist’s policy limits and much less than the medical costs incurred for his back 

surgeries. Viewing the record in the light most favorable to Cox, it does not appear that 

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American Family considered Cox’s back surgeries to be caused by the accident and did not settle 

with Cox for the costs of the surgeries. Had American Family considered the back surgeries to be 

caused by the accident, the settlement likely would have been for policy limits because the 

surgery bills alone were more than policy limits. Additionally, American Family had obtained an 

independent medical evaluation that had concluded that Cox’s back surgeries were not 

necessitated by the accident. 

Cox continued to maintain in his under-insured motorist claim against his personal 

automobile insurer, Country, that the 2008 accident caused his need for back surgery. Cox 

explains, however, that he did so only because Plaintiffs were asserting a lien against Cox’s

settlement proceeds on the theory that his back surgeries were the responsibility of the 

third-party automobile insurer. Cox was also concerned about the possibility of inconsistent 

results between the arbitration and this case. The record evidence supports these assertions. 

Further, Cox lost his argument in the binding arbitration, which resolved Cox’s under-insured 

motorist claim against him. In addition, Plaintiffs had the opportunity to exercise their 

subrogation rights and participate in the binding arbitration. Indeed, Cox repeatedly requested 

that the Trust Fund do so, but the Trust Fund chose to not avail itself of that opportunity. 

“Absent any good explanation, a party should not be allowed to gain an advantage by 

litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible 

theory.” 18B Arthur R. Miller, et al., FEDERAL PRACTICE AND PROCEDURE § 4477 (2d ed. 2016). 

The Court finds that there is a good explanation for Cox’s inconsistent positions before this 

Court and in arbitration—Cox was unsuccessful in asserting his earlier position and new medical 

information arose that contradicted Cox’s claim. Critical to the judicial estoppel analysis is that 

the party being estopped was successful in maintaining the inconsistent position in an earlier 

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proceeding. Id.; Baughman, 685 F.3d at 1133. That is not the case here. Moreover, the record 

demonstrates that Cox was reluctant to continue to pursue the position that the surgeries were 

necessitated by the accident and felt compelled by Plaintiffs to pursue such an argument. Further, 

because Plaintiffs could have participated in the arbitration proceedings but chose not to do so, 

there was no unfair detriment imposed on Plaintiffs by Cox changing his position after losing at 

arbitration. 

Plaintiffs cite to Board of Trustees v. Moore, 800 F.3d 214 (6th Cir. 2015), Kennedy v. 

Applause, Inc., 90 F.3d 1477 (9th Cir. 1996), and Board of Trustees for Laborers Health & 

Welfare Trust Fund for N. Cal. v. Hill, 2008 WL 5047705 (N.D. Cal. Nov. 25, 2008), to support 

their argument that Cox should be judicially estopped from arguing that his two back surgeries 

were not costs that are, or may be, the responsibility of a third party. These cases are all 

distinguishable, most notably because in these cases, unlike in this case, there was no dispute that 

the underlying injuries and resulting medical costs were caused by and the responsibility of a 

third party. The parties may have disputed whether the settlement amounts included 

compensation for the disputed medical bills, but no one disputed that the underlying injuries 

were caused by a third party. Here, the heart of the dispute is that Cox’s back surgeries were not 

the responsibility of any third party. 

Unlike Plaintiffs here, the ERISA plan administrators in Moore intervened in the state 

court action in order to protect their subrogation rights. Additionally, in Moore the injured party 

“never disputed that the state court defendants caused his injuries.” Moore, 800 F.3d at 222. Cox, 

however, does dispute that a third party caused his need for back surgeries. The Sixth Circuit 

noted in Moore that even if the injured party had disputed whether the third party caused his 

injuries, the record supported a finding that the settlement was entered-into because the injured 

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party alleged his injuries were caused by the third party and that “the facts in the record—the 

state court pleadings and the settlement—would lead any fact-finder in federal court to conclude 

that the municipal defendants caused Moore’s injuries . . . .” Id. at 222-23 (emphasis in original). 

Unlike in Moore, the record here does not support a finding that Cox’s back surgeries were 

caused by his 2008 accident. 

In Hill, the Court found that the plaintiff specifically used the fact that she would have to 

reimburse her medical insurance plan for medical bills as “leverage” in settlement negotiations to 

“persuade” the tortfeasor “to pay a larger sum.” 2008 WL 5047705, at *2. Like in Moore, and 

unlike in this case, in Hill no party argued that the relevant injuries were not caused by a third 

party, and the record in that case would not have supported such an argument. 

In Kennedy, the plaintiff sued her employer for improperly discharging her based on her 

disability. The district court had found that the plaintiff was totally disabled and therefore could 

not perform the essential functions of her job, regardless of what those functions were, and thus 

granted summary judgment to the plaintiff’s employer. 90 F.3d at 1481. The Ninth Circuit found 

that the district court had not abused its discretion in making such a finding. The Ninth Circuit 

further noted that evidence from the plaintiff’s doctor and the plaintiff’s sworn statements to 

state and federal disability offices all supported the conclusion that the plaintiff was fully 

disabled. Id. The Ninth Circuit found that the plaintiff’s deposition testimony in her lawsuit 

against her employer was self-serving, uncorroborated, and flatly contradicted both by the 

medical evidence and the plaintiff’s previous sworn statements. Id. The plaintiff’s deposition 

testimony in that case did not, therefore, create a genuine issue of fact, according to the Ninth 

Circuit. Id. 

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Here, although Cox originally believed that the 2008 accident caused his need for the 

back surgeries, this belief was ultimately belied by the medical evidence, prompting Cox to 

change his position. This is the opposite situation from Kennedy. Cox’s current position is that 

his back surgeries were not caused by the accident, and this is entirely consistent with the 

medical evidence. It was only Cox’s earlier, erroneous belief that the accident did cause his need 

for back surgery that conflicts with the medical evidence. For all of these reasons, the Court 

declines to preclude Cox, under the doctrine of judicial estoppel, from arguing that his back 

surgeries were not necessitated by a third party. 

2. The Trust Fund’s Discretionary Decision Finding Third-Party Responsibility 

The Trust Fund Plan’s third-party provision states, in part: “The Board of Trustees has 

full discretionary authority to interpret the provisions of this Plan, including this section.” 

Dkt. 53-1 at 3. Where a plan confers such discretionary authority to the plan administrator as a 

matter of contractual agreement, the standard of review is abuse of discretion. Abatie v. Alta 

Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc) (citing Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Further, “[a] plan administrator abuses its 

discretion if it . . . construes provisions of the plan in a way that conflicts with the plain language 

of the plan . . . .” Pac. Shores, 764 F.3d at 1042. 

The Trustees made a discretionary determination that Cox’s back surgeries and related 

injuries were the responsibility of a third party. Accordingly, the Trustees may bring a suit under 

Section 1132(a)(3) of ERISA. In such an action, the Trustees must prove both that there is a 

remediable wrong—meaning that Cox violated a term of the Trust Fund Plan—and that the relief 

sought by Plaintiffs is appropriate equitable relief. See Gabriel, 773 F.3d at 954. Cox concedes 

that Plaintiffs have properly asserted an equitable lien, established by agreement, against Cox on 

any funds recovered by Cox for injuries that may have been caused by a third party. All that is in 

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PAGE 21 – OPINION AND ORDER 

dispute is whether Plaintiffs have suffered a remediable wrong, based on Cox’s previously 

maintained but now withdrawn assertion that some of the medical expenses paid for by Plaintiffs 

are the responsibility of a third party. 

If the medical expenses for which the Trust Fund seeks reimbursement were not the 

responsibility of a third party, then Cox necessarily did not violate the third-party provision of 

the Trust Fund Plan. Plaintiffs argue that because Cox represented, both to American Family and 

to Plaintiffs, that Cox’s back surgeries were necessitated by the accident, and he then received 

compensation for that injury, the settlement is subject to Plaintiffs’ equitable lien. Neither of the 

more recent Supreme Court decisions relied on by Plaintiffs relating to equitable liens for 

medical costs that are the responsibility of a third party involve this particular dispute. In those 

cases, it was not disputed that a third party actually was responsible for the medical costs. See US 

Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1543-44 (2013); Sereboff v. Mid Atlantic Med. 

Servs., 547 U.S. 356, 359 (2006). 

Plaintiffs argue that they are entitled to assert an equitable lien in an amount not to 

exceed $63,087.03,3

 of which $59,439.86 is for the back surgeries that Cox underwent on 

March 2, 2011, and March 9, 2011, and the remainder is for various treatments from 

November 2010 through October 2011. Plaintiffs do not specifically assert that the back 

surgeries were, in fact, necessitated by the accident. Instead, Plaintiffs argue only that: (1) Cox 

and his attorney previously represented that the surgeries were necessitated by the accident; 

(2) Cox’s surgeon and chiropractor opined that Cox’s back injuries were related to the accident; 

and (3) Plaintiffs, therefore, reasonably concluded that the surgeries were necessitated by the 

 3

 Although Plaintiffs assert that they seek a lien of no more than $63,086.93, see Dkt. 70 

at 3 n.1, the amounts itemized in Plaintiffs’ supplemental brief total $63,087.03, see Dkt. 70 

at 3-4. Plaintiffs do not explain this minor difference of ten cents. 

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PAGE 22 – OPINION AND ORDER 

accident. Plaintiffs argue that at the time in 2011 when they asserted their right to a lien on any 

accident recovery, all relevant parties agreed that the lien was appropriate. Plaintiffs add that the 

lien, therefore, “attached” to any potential recovery at that time and cannot later “unattach” after 

numerous independent doctors opined that the back surgeries were not necessitated by the 

accident. 

The Trust Fund’s arguments regarding “attaching” and “unattaching” liens appear to 

inure only to the Trust Fund’s benefit, as evidenced by the facts of this case. The Trust Fund 

originally did not “attach” any lien or seek any reimbursement when it paid for Cox’s back 

surgeries. It did not consider the back surgeries to be the responsibility of a third party. The Trust 

Fund does not argue that it was bound by that original determination that the back surgeries were 

not the responsibility of a third party. To the contrary, after the Trust Fund obtained new 

information (Cox’s letter) leading the Trust Fund to conclude that the back surgeries were the 

responsibility of a third party, it then asserted its equitable lien. The Trust Fund offers no 

argument for why, when it later received significant medical information demonstrating that the 

back surgeries were not the responsibility of a third party, it was not obligated to reconsider its 

position in light of that new information. 

Plaintiffs’ arguments about the equitable lien “attaching” and then “unattaching” miss the 

mark. Under the terms of the Trust Fund Plan, the Trust Fund is not entitled to reimbursement 

for the costs that it expended for treatment unless the injury or condition treated is the 

“responsibility of a third party,” and the Trust Fund must properly exercise its discretion in 

making this determination about whether the injury or condition treated is the responsibility of a 

third party. To do otherwise breaches the fiduciary duty of the Trustees. See Pac. Shores, 764 

F.3d at 1044 (“Fiduciaries must discharge their duties ‘with the care, skill, prudence, and 

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PAGE 23 – OPINION AND ORDER 

diligence under the circumstances then prevailing that a prudent man acting in a like capacity 

and familiar with such matters would use in the conduct of an enterprise of a like character and 

with like aims.’” (quoting Pegram v. Herdrich, 530 U.S. 211, 224 n.6 (2000))). 

Plaintiffs do not argue that a third party actually is, or even may be, responsible for Cox’s

back surgeries. Instead, Plaintiffs argue that they “relied upon [Cox’s] representations about the 

relation of the surgeries to the accident.” Dkt. 51 at 17; see also Dkt. 51 at 19. There is no 

evidence, however, that either Cox or his attorney possess the requisite medical expertise to 

determine whether Cox’s injuries were or were not caused by a third party, which is required for 

concluding that the injuries are the responsibility of that third party. Moreover, the record is 

replete with expert medical opinions that Cox’s back surgeries were not caused by the 2008 car 

accident and thus were not the responsibility of a third party. If the situation were reversed and 

Cox sought reimbursement from the Trust Fund Plan for medical costs that he and his attorney 

merely asserted were “caused” by an event that is covered under the Trust Fund Plan, the Court 

is skeptical whether Plaintiffs would simply accept the opinion of a layperson and his attorney on 

a question of medical causation and disregard the contrary opinions of four medical 

professionals. 

From 2009 to 2015, the only doctor who opined that Cox’s back surgery was necessitated 

by the 2008 car accident was Cox’s own surgeon, Dr. Makker, who subsequently lost his license 

for performing unnecessary surgeries. For purposes of the arbitration, on November 23, 2015, 

Cox also obtained a short, conclusory statement from Dr. Kellogg that the back surgeries were 

necessitated by the car accident. Dkt. 54-4 at 23. This conclusory opinion, however, was not 

supported by Dr. Kellogg’s contemporaneous treatment notes from 2008 through 2010, and 

Dr. Kellogg did not provide any reasoning or sound medical basis for this conclusion. In 

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PAGE 24 – OPINION AND ORDER 

contrast, the four medical practitioners who conducted Cox’s independent medical evaluations

and reviews all provided thorough opinions explaining in detail why Cox’s surgeries and other 

related expenses beyond approximately six months of treatment were not necessitated by 

the 2008 car accident. 

Plaintiffs also note that to the extent that Dr. Makker’s conclusions that Cox’s surgery 

was medically necessitated by the 2008 car accident were either fraudulent or grossly negligent, 

Cox is in a better position than Plaintiffs to pursue remedies against Dr. Makker. This argument 

also misses the point. If the evidence shows that Dr. Makker’s opinion that the 2008 car accident 

necessitated the surgeries is not reliable or persuasive, then Plaintiffs abused their discretion in 

relying on it. It does not matter who could more easily pursue a medical malpractice action 

against Dr. Makker. Plaintiffs must properly exercise their fiduciary duties and cannot rely on the 

fact that they cannot easily pursue a medical malpractice claim to reach a discretionary decision 

that is medically unsupported by the facts. Accordingly, the Court finds that Plaintiffs abused 

their discretion in construing the costs of Cox’s back surgeries to be the responsibility of a third 

party. 

Plaintiffs also assert that even if the accident did not cause the need for Cox’s surgeries, 

because Cox obtained a settlement of $45,000 by arguing that his surgeries were the 

responsibility of a third party, Cox has received payments for those injuries and thus must 

reimburse the Trust Fund. This argument is unavailing. First, the provision of the Trust Fund 

Plan establishing the Trust Fund’s right to reimbursement has as an express condition of 

reimbursement that the underlying medical expense must be for an injury that was or is the 

responsibility of a third party. As discussed above, it was an abuse of discretion to conclude that 

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PAGE 25 – OPINION AND ORDER 

Cox’s back surgeries and other medical costs after approximately May 2009 were the 

responsibility of a third party. Thus, the reimbursement provision simply does not apply. 

Moreover, even if the Trust Fund could obtain reimbursement for medical costs for 

treatment that was not the responsibility of a third party based on an estoppel-type argument 

from a settlement received, such a conclusion would not be warranted in this case. The evidence 

simply does not show, as a matter of law, that Cox received the $45,000 settlement to 

compensate him for the cost of his back surgeries. The settlement was only ten percent of Cox’s 

original demand and was significantly less than policy limits, while the actual cost of the back 

surgeries was significantly more than policy limits. If the settlement was intended to compensate 

for the back surgeries, a policy-limit settlement would be expected and settling “light” only 

supports the conclusion that the settlement was not compensating Cox for his back surgeries (as 

noted by Country in its correspondence to Cox). Moreover, this settlement was reached only 

after two independent medical evaluations had opined that Cox’s back surgeries were not 

necessitated by the 2008 car accident. 

B. Cox’s Cross-Motion for Summary Judgment 

In his cross-motion for summary judgment, Cox argues that viewing the evidence in the 

light most favorable to Plaintiffs and drawing all reasonable inferences in their favor, there is no 

genuine dispute that the two back surgeries and later medical expenses for which Plaintiffs assert 

an equitable lien were not the responsibility of a third party. Therefore, argues Cox, the terms of 

the agreement that allow Plaintiffs to assert an equitable lien do not permit Plaintiffs to assert an 

equitable lien for those medical expenses. For the reasons discussed above in the context of 

Plaintiffs’ motion for summary judgment, the Court agrees with Cox. 

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CONCLUSION 

Plaintiffs’ motion for summary judgment (Dkt. 51) is DENIED. Defendant’s motion for 

summary judgment (Dkt. 54) is GRANTED. 

IT IS SO ORDERED. 

DATED this 7th day of June, 2016. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

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