FRANKLIN BURGESS, United States District Court Judge
On June 28, 2002, this Court considered Plaintiffs Motion for a preliminary injunction. Based upon Plaintiff's motion and memorandum, Plaintiff's Amended Verified Complaint, testimony and other evidence presented at hearing, and the record as a whole, the Court finds that Plaintiff will suffer immediate and irreparable injury if this motion is not granted and, thus, Plaintiffs motion for a preliminary injunction order is well taken and should be granted.
The Court makes the following factual findings:
1. Jesse Perkins, deceased husband of Defendant Perkins was, at all relevant times, a "Covered Person" under the Plan, which is self-funded. (Amended Verified Complaint, ¶ 6).
2. On or about March 5, 2000, Jesse Perkins was injured in a motorcycle accident (Amended Verified Complaint, 17%
3. In connection with the injuries from that accident the Plan paid medical benefits on behalf of Jesse Perkins in the amount of $343,033.08. (Amended Verified Complaint, ¶ 8).
4. The Plan contains a "Provision for Subrogation and Right of Recovery" provision, which states:
PROVISION FOR SUBROGATION AND RIGHT OF RECOVERY
The Member may incur costs for treatment of an Illness or an Accident Injury that is alleged to be the result of an act of a third party. These costs may also be payable under this Plan. When this happens, the Member or his or her legal representative must cooperate fully with ONE in asserting its fights subject to this provision.
The Member or his or her legal representative must supply ONE with all information and sign and return all documents reasonably necessary to carry out ONE's right to recover any costs of the services provided under the Plan which are subject to this provision. If the Member or his or her legal representative fails to cooperate fully with ONE, ONE will withhold coverage under this Plan until the Member or his or her legal representative cooperates with ONE within the meaning of this provision.
The Member or his or her legal representative will take no action to prejudice ONE's rights Under this provision.
When coverage is provided under this Plan for the treatment of an Illness or an Accidental Injury, ONE may, at its option:
• Take over the Member's right to receive payment from the third party, the third party's insurer or guarantor, or the Member's uninsured and/or under insured motorist insurance. The Member or his or her legal representative will transfer to ONE any rights he or she may have to take legal action arising em the illness or an Accidental Injury to recover the cost of services provided to the Member by the Plan; or
• Recover from the Member or his or her legal representative any costs of services provided under the Plan from any payment which the Member is entitled to receive from the third party, third party's insurer or guarantor, or the Member's uninsured and/or underinsured motorist insurance.
ONE will have a first lien against any recovery to the extent of the cost of coverage provided under the Plan, whether by settlement judgment mediation or arbitration, that the Member receives or that is received on his or her behalf from any of the soirees listed above, and in spite of the Member not being made whole by such payment
The first lien will not exceed the lesser of:
• The costs of the services provided under the Plan for the illness or an Accidental Injury; or
• The total amount received by the Member or on his or her behalf from the third party, third party insurer or guarantor, or the Member's uninsured or underinsured motorist insurance.
If the Member requires continuing treatment for the illness or an Accidental Injury following settlement, judgment, mediation or arbitration, ONE will reduce the future costs of coverage under the Plan from the amount recovered by the Member or on his or her behalf from the sources described above and in excess of the amount already paid by the Member to ONE.
If the Member or his or her legal representative makes any recovery from any of the sources described above the fails to reimburse ONE fully for any costs of the services which arise from the illness or an Accidental Injury, then:
• The Member and/or his or her legal representative will be personally liable to ONE for the costs of the services provided under this Plan, Including attorney fees and costs incurred by ONE for the recovery of the Member's debt; and
• ONE may reduce the future costs of services to this Plan by the payment that the member or his or her legal representative has received or will receive from the third party insurer or guarantor, or the Member's uninsured or underinsured motorist insurance. ONE's first lien rights will not be reduced due to the Member's own negligence or due to the Member's attorney fees and costs.
• an Employee's minor covered Dependent
• the estate of any Covered Person; or
• on behalf of any incapacitated person.
(Amended Verified Complaint, ¶ 9).
5. On February 14, 2001, Jesse Perkins died. His legal representative, Defendant Charlotte Perkins, pursued claims on his behalf (Amended Verified Complaint, ¶ 10).
6. On information and belief, Defendant Perkins settled claims regarding Jesse Perkins' death with the responsible third parties. ( Id).
7. Plaintiff has requested that Defendant Perkins abide by the terms of the Plan, but Defendant has refused to do so. (Amended Verified Complaint, ¶ 11).
8. The settlement funds from Defendant Perkins' claim against the responsible third parties have been disbursed to Defendant Perkins. ( Id).
The Court makes the following conclusions of law:
1. This Court has subject matter jurisdiction over this action and in personam jurisdiction over Defendant Venue is proper in this Court.
2. This action arises under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1132 (a)(3).
3. The Plan is self-funded and, thus, ERISA preempts state law to the extent that any such law would purport to limit the Plan's right of reimbursement. FMC Corp. v. Holliday, 498 U.S. 52 (1990).
4. The terms of the Plan provide for full reimbursement, to the extent of benefits paid, from covered persons for sums paid by the Plan to the participants and/or their beneficiaries which the participant or beneficiary is able to recover from third parties.
5. Since Great-West Life Annuity Insurance Company v. Knudson, 122 S.Ct. 708 (2002), authorizes an action where, as here, the disputed funds are being held by a defendant, and since the Plan provides for 100% reimbursement from Plan participants and their beneficiaries as Set forth above, Plaintiff has demnonstrated a strong likelihood of success on the merits.
The Ninth Circuit has not ailed on whether Great-West Life alters the court's ruling in FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir. 1997), that "ill-gotten" gains are a requirement for constructive trusts. It appears, however, that the Ninth Circuit's requirement in this regard has been altered. The Supreme Court ruled in Great West Life that "rarely will there be need any more for `antiquarian inquiry' . . . than consulting, as we have done, standard current works such as Dobbs, Palmer, Corbin, and the Restatements, which make the answer clear." 122 S.Ct. at 716. These treatises reject the argument that wrongdoing or misconduct is a prerequisite to the imposition of a constructive trust. The Law of Remedies provides that "neither wrongdoing nor title is an essential element of a restitution claim." Law of Remedies, § 4.1(2). In any event the Plan here contains a cooperation clause stating that "If the Member or his or her legal representative fails to cooperate fully with ONE, ONE will withhold coverage under this Plan until the Member or his or her legal representative cooperates with ONE within the meaning of this provision'." Defendant's failure to cooperate with the Plan in enforcing the reimbursement provision is itself' "misconduct" warranting imposition of a constructive trust.
6. Plaintiff is entitled to a statutory injunction under 29 U.S.C. § 1132 (a)(3)(A), without regard to the traditional factors analyzed under Fed.R.Civ.P. 65.
7. In any even, Plaintiff has established that the actions of Defendant, and all those in active concert or participation with her, unless enjoined, will likely cause Plaintiff to suffer immediate and irreparable injury because Defendant has the ability to place these funds beyond the reach of the Court and Plaintiff, thereby preventing the Court from imposing final equitable relief in this matter.
IT IS, THEREFORE, ORDERED ADJUDGED and DECREED that
1) Defendant Perkins, and all those acting in concert or participation with her, are enjoined from disposing settlement funds received in settlement of his personal injury claims until the rights of Plaintiff have been determined by this Court.
2) Plaintiffs previously-posted bonded of $1,000.00 shall remain in full force and effect until the rights of Plaintiff have been determined by this Court.