No.

08-16875-CC

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ZURICH AMERICAN INSURANCE COMPANY, in its capacity

as fiduciary of the Zurich Medical Plan, and BENEFITS ADMINISTRATION
COMMITTEE OF THE ZURICH MEDICAL PLAN, in its capacity as Plan
Administrator of the Zurich Medical Plan,

Plaintiffs-Appellees,

v.

KEITH O’HARA and ROSS & PINES, LLC, as trustee of the

Keith O’Hara Full Compensation Fund,

Defendants-Appellants.

On Appeal from the United States District Court

for the Northern District of Georgia

REPLY BRIEF OF APPELLANTS KEITH O’HARA

AND ROSS & PINES, LLC

CHARLES M. CORK, III

Ga. Bar No. 187915
830 Mulberry Street, Suite 203
Macon, Georgia 31201
(478) 742-0204

Attorney for Defendants-Appellants

 Table of Contents

Page

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Citations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Argument and Citations of Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Zurich’s arguments are irrelevant to the correct interpretation of

29 U.S.C. § 1132(a)(3), which is the issue before the Court... . . . . . . . . . . . 1

2. Zurich’s remaining arguments are either erroneous or irrelevant to the

proper interpretation of 29 U.S.C. § 1132(a)(3).. . . . . . . . . . . . . . . . . . . . . . 6

3. Zurich’s argument shows that the reimbursement provision is

discriminatory, in violation of 29 U.S.C. § 1182... . . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i
 Table of Citations

Federal Cases

Administrative Comm. (Wal-Mart) v. Shank, 500 F.3d 834 (8th Cir. 2007).. . . . 10

Barnes v. Independent Auto. Dealers Ass’n Health & Benefit Plan,

64 F.3d 1389 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Benefit Recovery, Inc. v. Donelon, 521 F.3d 326 (5th Cir. 2008). . . . . . . . . . . . . . 8

Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 7

Cutting v. Jerome Foods, Inc., 993 F.2d 1293 (7th Cir. 1993).. . . . . . . . . . . . 3-5, 8

Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2001). . . . . . . . . . 5-8

Marshall v. Employers Health Ins. Co., No. 96-6063, 1997 U.S. App.

LEXIS 36769 (6th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Mertens v. Hewitt Assocs., 508 U.S. 248 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006). . . . . . 1, 5-8

Federal Statutes

29 U.S.C. § 1132(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-8

29 U.S.C. § 1144(b)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

29 U.S.C. § 1182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

29 U.S.C. § 1182(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii
Federal Regulations

29 C.F.R. § 2590.702(b)(2)(i)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

iii
 Argument and Citations of Authority

1. Zurich’s arguments are irrelevant to the correct interpretation of 29

U.S.C. § 1132(a)(3), which is the issue before the Court.

The parties are in basic agreement about the state of the law up to a point.

The parties agree that Sereboff and other controlling cases hold that a group health

plan’s claim to enforce reimbursement provisions sounds in equity and that it is

therefore authorized by 29 U.S.C. § 1132(a)(3) if such a claim identifies the fund

out of which reimbursement is due and the portion due. Zurich Brief at 8.1 The

parties agree that the provisions of Zurich’s plan seek such relief (Zurich Brief at

9-10), with the exception that the definition of the amount of the recovery as the

“reasonable value” of the medical services does not define a specific fund.

O’Hara Opening Brief at 49-50.2 The parties agree that the remaining question is

whether enforcement would constitute “appropriate equitable relief” under 29

U.S.C. § 1132(a)(3). Zurich Brief at 10. At this point, the parties disagree about

the significance of the stipulated fact that Keith O’Hara was not made whole by

1
The Court should, of course, refrain from confusing a necessary condition
for recovery (pleading a case that sounds in equity, to avoid dismissal at the
pleading stage under a Rule 12(b)(6) motion) with a sufficient condition for a final
decree on the merits: proving that the relief is in fact “appropriate equitable relief.”
2
Contrary to Zurich’s suggestion at 10, O’Hara’s agreement to set aside the
money claimed by Zurich does not constitute O’Hara’s agreement that this sum
was the “reasonable value” of the services rendered, which is the controlling
standard as defined by the plan.

1
receipt of settlement funds in this case.3 Doc. 51 at 5(¶16). This Court must

decide between two competing interpretations of 29 U.S.C. § 1132(a)(3):

(1) O’Hara’s contention: The words “appropriate equitable relief” in 29

U.S.C. § 1132(a)(3) require that relief be “equitable” and “appropriate,” mandat-

ing traditional equitable limitations on any awardable relief, and preventing Zurich

from circumventing the limitations by inequitable, or potentially inequitable,

contract terms. O’Hara’s Opening Brief at 9-20, 25-36, 42-48.

(2) Zurich’s contention: The discussion of the make-whole doctrine in

Cagle v. Bruner, 112 F.3d 1510, 1520-1522 (11th Cir. 1997), is the definitive

source of understanding what limitations Congress intended by the words “appro-

priate equitable relief” in 29 U.S.C. § 1132(a)(3), though Cagle does not contain

the words “appropriate” or “equitable” and mentions 29 U.S.C. § 1132(a)(3) only

once for the point that the plaintiff cited it as a jurisdictional basis in the com-

plaint.4 Zurich Brief at 10-15. This is not a caricature of Zurich’s position: if

Cagle is not the key to Zurich’s interpretation of 29 U.S.C. § 1132(a)(3), then

3
Since Zurich stipulated to this fact, the Court should disregard the suggest-
ion in Zurich’s Brief at 10 that this is an open question, that O’Hara’s position
consists merely “in his view” that he was not made whole for all his injuries.
4
In O’Hara’s Opening Brief at 44, the undersigned overlooked this refer-
ence in the “procedural history” section of the opinion and erroneously stated that
the case made no citation to 29 U.S.C. § 1132(a)(3). It remains true, however, that
no part of the opinion turned on an interpretation of 29 U.S.C. § 1132(a)(3).

2
Zurich offers nothing at all, except perhaps the law of inertia.

In his Opening Brief at 42-44, O’Hara showed that there are two types of

make-whole rules and that Cagle involved a make-whole rule of the first type.

Make-whole rules of the first type address the meaning and application of plan

terms when a reimbursement provision would conflict with the overall purpose of

the plan that the insurer will bear the risk of the individual’s medical expenses.

Since this type of rule is a mere gap-filler, a rule that decides which of the two

purposes controls in case of a conflict between them, it is not needed when the

drafter provides an explicit term that resolves the conflict. However, O’Hara also

showed that there are make-whole rules of the second type, which are substantive

limitations on the validity of reimbursement provisions and which cannot be

averted by careful drafting. Id. at 25-36.5 He argued that 29 U.S.C. § 1132(a)(3)

is such a limitation. Id. at 9-20. Zurich provided no answer to either argument.

The make-whole cases that Zurich cites confirm O’Hara’s argument that

Cagle and similar decisions relate to make-whole rules of the first type rather than

interpretations of 29 U.S.C. § 1132(a)(3). For instance, Cutting v. Jerome Foods,

Inc., 993 F.2d 1293 (7th Cir. 1993), does not cite 29 U.S.C. § 1132(a)(3), does not

contain the word “appropriate,” and contains the word “equitable” only in connec-

5
The Court should not succumb to Zurich’s implicit argument that, by
referring to the make-whole rule, there is only one possible make-whole rule.

3
tion with a peripheral discussion of equitable estoppel. Instead, the case turned on

an “interpretation of the subrogation clause,” id. at 1295 (emphasis added), which

arose from a recognition that if the reimbursement term was to be enforced, the

individual “would derive no benefit in fact from the plan,” and that it would be

“misleading” to say that the plan had paid her medical benefits. Id. The Cuttings

did not ask the court to enforce the limitation of 29 U.S.C. § 1132(a)(3); they

asked it to adopt a principle of federal common law. Id. at 1296. “[T]he so-called

universal rule of subrogation for which the Cuttings contend is a rule of interpre-

tation.” Id. at 1297 (emphasis added). “Because, as the Cuttings concede, the

make-whole rule is just a principle of interpretation, it can be overridden by clear

language in the plan.” Id. at 1298-1299 (emphasis added). O’Hara does not make

this fatal concession, and 29 U.S.C. § 1132(a)(3) is not “just a principle of

interpretation.”

Likewise, in Barnes v. Independent Auto. Dealers Ass’n Health & Benefit

Plan, 64 F.3d 1389 (9th Cir. 1995), the court does not cite 29 U.S.C. § 1132(a)(3),

and therefore it does not discuss, let alone apply, the term “appropriate equitable

relief.” Instead, it follows Cutting in applying a make-whole rule as a matter of

federal common law, quoting Cutting’s description of the rule as “a rule of inter-

pretation . . . [and] a gap filler.” Id. at 1394 (emphasis added), quoting Cutting,

993 F.2d at 1297.

4
 The same is true of Marshall v. Employers Health Ins. Co., No. 96-6063,

1997 U.S. App. LEXIS 36769 (6th Cir. 1997), which does not cite 29 U.S.C.

§ 1132(a)(3) and which does not discuss or apply the term “appropriate equitable

relief.” The court follows Barnes and Cagle in holding that “Courts which have

applied the make-whole rule have emphasized that it is a rule of interpretation and

functions merely as a default rule” (id. at *11, emphasis added), and it quotes

Cutting for the observation that this version of the rule is “just a principle of

interpretation.” Id. at *14 (emphasis added).

These cases remain viable on the interpretation of plan language that con-

flicts with the purpose of the plan to pay for the insured’s medical expenses. They

are, however, fundamentally irrelevant to the scope and limits of relief under 29

U.S.C. § 1132(a)(3). For after Cagle, after Cutting, after Barnes, and after Mar-

shall, the Supreme Court instructed the lower courts on how to construe 29 U.S.C.

§ 1132(a)(3), and how to apply it in this very context. Zurich has no qualms about

asking this Court to follow Knudson and Sereboff where they hold that Zurich’s

complaint sounds in equity. As asserted in his opening brief at 14-17, O’Hara

simply asks the Court now to follow the directions given in Knudson and Sereboff

about the scope and limits of “appropriate equitable relief” within 29 U.S.C. §

1132(a)(3). Both cases direct the courts to “consult[], as we have done, standard

current works such as Dobbs, Palmer, Corbin, and the Restatements, which make

5
the answer clear.” Knudson, 534 U.S. at 217 (footnote omitted) (emphasis added).

In Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 364-366 (2006), the

Supreme Court cited Dobbs, Palmer, and Pomeroy as authoritative in resolving

issues on the scope and limits of equitable relief. As shown in O’Hara’s opening

brief at 25-29, the “standard current works” show that equitable principles within a

few pages of those cited by the Supreme Court authorize courts to refuse equitable

relief in cases like this, as developed further at pp. 29-36.

Zurich has simply failed to argue how, under the Supreme Court’s analysis,

the phrase “appropriate equitable relief” could be construed to allow the parties to

contract away any equitable principle and to enforce inequitable results automati-

cally. In view of the cases cited at 12-14 of O’Hara’s opening brief, in which the

Supreme Court has held that equitable relief authorized by federal statutes for the

violation of those same statutes is not automatic, but is subject to traditional

equitable discretion, Zurich’s position would be the most perverse and anomalous

result imaginable.

2. Zurich’s remaining arguments are either erroneous or irrelevant to the

proper interpretation of 29 U.S.C. § 1132(a)(3).

Here, O’Hara addresses Zurich’s remaining arguments in Part I in sequence.

Zurich argues that O’Hara’s argument proves too much, because if a make-

6
whole rule is implicit in 29 U.S.C. § 1132(a)(3), there would be no reason for

plans to “‘contract out’ of that make-whole limitation,” which Cagle purports to

allow. Zurich Brief at 13. This argument is anachronistic. The Supreme Court’s

guidance in Knudson and Sereboff occurred after Cagle. The Cagle Court cannot

be faulted for failing to anticipate those developments and failing to apply them

sua sponte. The net result of the Knudson-Sereboff cases is that plans cannot

“contract out” of the Congressional limitation that they obtain only “appropriate

equitable relief,” and O’Hara simply asks this Court to enforce it.

Zurich argues that a make-whole rule would “leave plans, plan participants,

and the courts with no objective standards to use” in deciding whether the indivi-

dual is made whole. Zurich Brief at 13, n.2. On the contrary, district courts

routinely apply those standards in trying tort claims in diversity cases. The

amount that would compensate the individual for all losses in a tort case is a

question of fact under rules for damages that have not changed in decades. When

the trier of fact decides that amount, it is then easy to add (a) the amount paid by

the plan to (b) the amount recovered by the individual to determine whether that

sum is greater than (c) the verdict that establishes full compensation.

Zurich misstates O’Hara’s argument at 13-14. O’Hara does not contend that

federal courts are bound to apply state court decisions on equity. O’Hara agrees

that federal law preempts state law on this issue, at least if the plan is not insured.

7
See Benefit Recovery, Inc. v. Donelon, 521 F.3d 326 (5th Cir. 2008) (state law

imposing a make-whole limitation “regulates insurance” within the meaning of 29

U.S.C. § 1144(b)(2)(A) and is not preempted). However, the Congressional intent

manifest in 29 U.S.C. § 1132(a)(3), as interpreted in Knudson and Sereboff, pre-

empts Zurich’s attempts to contract out of traditional principles of equity, and the

sources of our knowledge of those governing principles are compilations of

federal and state equity cases.

Zurich notes that O’Hara cites no cases holding that 29 U.S.C. § 1132(a)(3)

includes a make-whole rule. Zurich Brief at 14-15. Zurich’s implication is again

anachronistic. O’Hara has made no secret of his position that this is the first time

that the issue has been properly and adequately raised. Sereboff notes that the

issue was not properly raised in the courts below, and that it would not decide it

there. 547 U.S. at 368, n.2. Before that decision in 2006, the judicial opinions

were in turmoil over the meaning of the Knudson decision and whether it preclud-

ed all reimbursement claims of any sort. Whether a make-whole rule is inherent in

29 U.S.C. § 1132(a)(3) is now ripe for its first real consideration. (The cases that

Zurich cites in connection with this argument were addressed in Part 1 above.)

Zurich’s argument stressing the importance of encouraging employers to

provide health benefit plans (Zurich Brief at 15-16) was addressed in part in

O’Hara’s Opening Brief at 34-36. As the Supreme Court has observed,

8
 [V]ague notions of a statute’s “basic purpose” are nonetheless
inadequate to overcome the words of its text regarding the specific
issue under consideration. [Cit.] This is especially true with legis-
lation such as ERISA, an enormously complex and detailed statute
that resolved innumerable disputes between powerful competing
interests – not all in favor of potential plaintiffs.

Mertens v. Hewitt Assocs., 508 U.S. 248, 261-262 (1993). Congress has resolved

the dispute between powerful competing interests by limiting Zurich’s relief to

“appropriate equitable relief.” If it is equitable for Zurich to recover, it may do so,

but if it is inequitable, Zurich may not recover. This limitation is implied into the

plan by operation of law, even if it is not expressed there. Zurich, in other words,

has no right to rely on contractual reimbursement provisions apart from the

“appropriate equitable relief” limitation that is implied into them.

O’Hara does not dispute Zurich’s claim that a reimbursement recovery

reduces Zurich’s costs, because O’Hara would essentially subsidize Zurich’s

commitment to pay the part of actual medical expenses above 22% of the pro-

jected level of medical costs, but Zurich’s contention that such recoveries reduce

other employees’ costs is nonsensical. Zurich Brief at 16-18. The stipulated facts

show that Zurich plan participants will pay approximately 22% of the projected

costs whether or not Mr. O’Hara is made to give up his compensation for future

earnings and his being maimed. Doc. 51 at 3-4 (¶¶ 10-11). Zurich does not

explain how its receipt of reimbursement recoveries from O’Hara will affect future

9
expected costs, which are a function of (a) the medical services that Zurich

employees will need and (b) the charges for those services by medical care

providers. Instead, as stipulated (id. at ¶ 11), the money simply reduces the

amount that Zurich agreed to provide for employee benefits, which means that it is

pure profit for Zurich, as numerous courts have concluded. See cases collected in

O’Hara’s Opening Brief at 42, n.30.

Zurich’s argument here, like the Eighth Circuit’s Shank decision that it

cites, is based on no facts, just dogma, that “all other plan members would bear the

cost in the form of higher premiums.” If there were a factual basis for this dogma,

Zurich could have produced it. Zurich would not have stipulated that it sets the

target contribution for employees at 22% of the anticipated cost of the benefits it

will provide. Doc. 51 at 3, ¶ 10. Zurich certainly would not have stipulated that

“subrogation recoveries reduce the amount that Zurich is required to contribute to

the Plan,” id. at ¶ 11, since it quotes the Eighth Circuit for crediting these recover-

ies to the account of other employees. It would not have stipulated to the illustra-

tion that other employees would still pay 22% of the projected benefits, the tort

victim would pay 50% (in that illustration), and Zurich would pay 28% (if the ex-

penses were accurately projected). Id. at 4, ¶ 11. Zurich’s fact-free argument

should therefore be rejected.

10
3. Zurich’s argument shows that the reimbursement provision is
discriminatory, in violation of 29 U.S.C. § 1182.

This Part replies to the arguments at 18-21 of Zurich’s brief on the question

of whether its reimbursement provisions also violate HIPAA’s anti-discrimination

provision, 29 U.S.C. § 1182. O’Hara notes that Zurich does not answer the part of

O’Hara’s argument showing that equity alone, without HIPAA, requires equal

treatment among plan beneficiaries and that, accordingly, the reimbursement pro-

vision is inappropriate and inequitable. See O’Hara’s Opening Brief at 20-21. In

assessing Zurich’s arguments, it will be helpful to use a hypothetical example:

Assume that two of Zurich’s employees are driving home after work

in the same car, and due to the driver’s negligence, both sustain

similar severe injuries requiring similar medical treatment and similar

medical costs, and precluding future employment. Zurich pays all

medical bills for both. The passenger sues the driver and recovers for

pain and suffering, lost future wages, and medical expenses from the

driver’s liability insurance company. Zurich sues the passenger to

claim reimbursement in full. If Zurich is successful, the passenger

would forfeit all of his compensation to Zurich, but the negligent

driver owes nothing at all to Zurich.

Zurich first asserts the stipulated fact that all participants paid the same

11
premiums for the same level of insurance coverage. Zurich Brief at 18. However,

29 U.S.C. § 1182(b) is not limited to requiring the same premium. It provides that

a plan “may not require any individual (as a condition of enrollment or continued

enrollment under the plan) to pay a premium or contribution which is greater than

such premium or contribution for a similarly situated individual enrolled in the

plan on the basis of any health status-related factor . . . .” (Emphasis added.) In

the hypothetical, the passenger pays a much higher contribution to the plan than

the driver. These are “contributions,” since as Zurich has stipulated, “subrogation

recoveries reduce the amount that Zurich is required to contribute to the plan.”

Doc. 51 at 3 (¶ 11).

Zurich next argues that its reimbursement features apply equally to all parti-

cipants and beneficiaries. Zurich Brief at 18. Zurich cites nothing in the record to

support this assertion, but assuming that the assertion is true, the equal application

of the reimbursement feature does not prevent, but rather guarantees, unequal

benefits for plan participants or unequal contributions from them, either of which

violates HIPAA. In the hypothetical, it guarantees that the driver receives the full

payment of medical care benefits that he is entitled to under Zurich’s plan, but it

guarantees that the passenger receives only an “advance” of those payments.6 It

6
Zurich refers to O’Hara’s benefits as “advances” or payments “advanced”
at 1, 2, 7, 12 of its Brief.

12
guarantees that the passenger contributes not only the same premiums that the

driver pays, but also the recovery of future wages that he will never receive.

O’Hara agrees with Zurich’s assertion that 29 C.F.R. § 2590.702(b)(2)(i)(B)

requires that “benefits must be ‘uniformly available’ to all ‘similarly situated indi-

viduals,’” Zurich Brief at 19, like the driver and passenger in the hypothetical, and

like O’Hara in real life. O’Hara further agrees with Zurich’s statement that “by

their terms, these statutory and regulatory provisions prohibit plans from singling

out similarly situated people by imposing unequal treatment,” id., like the passen-

ger in the hypothetical and O’Hara in real life.

In view of this, Zurich’s argument that this case is “not about plan ‘premi-

ums’ or ‘contributions’,” but about its right to exercise its reimbursement provi-

sion (Zurich Brief at 19-20), misses the point of 29 U.S.C. § 1182. 29 U.S.C.

§ 1182 requires uniform availability of benefits at uniform costs to employees and

prohibits “singling out” people for unequal treatment in relation to benefits or

contributions. An equal application of a reimbursement provision that causes

inequality in benefits or contributions will violate 29 U.S.C. § 1182.

Contrary to Zurich’s claim that it “is not asking Mr. O’Hara to pay addition-

al amounts towards his coverage out of his family’s general assets” (Zurich Brief

at 20), because Zurich has stipulated that O’Hara has not been made whole, Zurich

is precisely asking O’Hara to pay additional amounts out of his family’s general

13
assets. His “family’s general assets” included his bodily integrity and his earning

capacity before this wreck, and they include the compensation for his loss of both

after this wreck. If Zurich recovers in this case, O’Hara will be giving the cash

equivalent of his bodily integrity and earning capacity to Zurich in order to allow

Zurich to reduce Zurich’s liability to its employees. Yes, Zurich is indeed asking

O’Hara to pay additional amounts out of his family’s general assets.

Likewise, Zurich is wrong to claim that “Mr. O’Hara cannot credibly argue

that his wife’s premiums or contributions were higher than what any other similar-

ly situated covered individuals paid.” Id. The premiums were the same, but the

contributions would be much higher if Zurich is successful, because the cash

equivalent of her spouse’s bodily integrity and earning capacity would have to be

contributed to the plan, for the specific purpose of reducing Zurich’s contribution

to the plan, and this would exceed by far the contributions required of other Zurich

employees.

O’Hara is being asked to contribute more than other plan participants, to

repay benefits that other plan participants do not have to repay, because he re-

ceived money due to being severely injured, receiving health care, and having a

particular claims experience, all of which are defined as “health status-related fac-

tors.” In the hypothetical, the plan discriminates between the claims experience of

the driver and passenger by deciding that the driver’s claims experience warrants

14
payment of benefits, but finding the passenger’s claims experience to be too costly

to do more than advance benefits that must be repaid. HIPAA’s requirement that

benefits “must be uniformly available to all similarly situated individuals,” 29

C.F.R. § 2590.702(b)(2)(i)(B), would be meaningless if a plan could require some

households to pay all of a member’s earning capacity in addition to the premiums

that all other households must pay.

Contrary to Zurich’s argument at 20-21, the reimbursement provision is not

a “generally-applicable ‘limitation’ or ‘restriction’ on the amount or extent of Plan

benefits.” For it to be a “generally applicable” limitation on plan benefits, it

would apply equally to the similarly situated driver and passenger in the hypothe-

tical, but the driver gets his medical expenses paid in full, whereas the passenger

gets only an advance that he must repay. It would be “generally applicable” if it

capped payments for both the driver and passenger at, say, $10,000, or if it pro-

vided that both the driver and passenger equally repay their medical expenses from

their future earnings, or if it required both the driver and the passenger to pay a

higher deductible or co-pay. But if it applies to cause the driver and passenger to

have different benefits under the plan, as Zurich’s reimbursement provision does,

it cannot be a “generally applicable” limitation. Zurich’s reimbursement provision

violates HIPAA.

15
 Conclusion

For the reasons given in O’Hara’s Opening Brief and above, the judgment

below should be reversed. Judgment should be entered for Keith O’Hara because

it is stipulated that he was not made whole and because “appropriate equitable

relief” requires that he be made whole before Zurich may obtain reimbursement,

and because relief for Zurich would impose a disproportionate and discriminatory

burden on O’Hara.

Respectfully Submitted,

_______________________________
Charles M. Cork, III
Ga. Bar No. 187915
830 Mulberry Street, Suite 203
Macon, Georgia 31201
Telephone: (478) 742-0204
Telecopy: (478) 742-0190

Attorney for Defendants-Appellants Keith O’Hara and Ross & Pines, LLC

16
 Certificate of Compliance

Pursuant to FRAP 32(a)(7)(c), I hereby certify that this brief complied with

the type-volume limitation of FRAP 32(a)(7)(B)(i). The brief is printed in 14

point Times New Roman font, a proportionately spaced font, and it contains 3,785

words as calculated by the WordPerfect X4 software used to prepare the brief.

CHARLES M. CORK, III

17
 Certificate of Service

The undersigned hereby certifies that on or before March 23, 2009, he

served this REPLY BRIEF OF APPELLANTS by first class mail, postage prepaid, to

each of the counsel for the defendants as follows:

Mr. Alexander P. Ryan Mr. Michael A. Coval

Mr. Edward A. Scallet Ms. Tiffany D. Downs
Mr. Thomas F. Fitzgerald Ford & Harrison
Groom Law Group, Chartered Suite 600
1701 Pennsylvania Avenue, N.W. 1275 Peachtree Street, N.E.
Washington, D.C. 2006-5893 Atlanta, Georgia 30309

_______________________________
Charles M. Cork, III

18