from the Superior Court in Maricopa County. No.
CV2008-023699. The Honorable John A. Buttrick, Judge
Sundeen Attorney at Law, Scottsdale, By Neil S. Sundeen,
Co-Counsel for Plaintiff/Counterdefendant/Appellee.
& Roberts, P.C., By David L. Abney, Co-Counsel for
Roca Rothgerber Christie LLP, Phoenix, By John C. West,
Co-Counsel for Third-Party Defendant/Appellant.
Dunn & Crutcher LLP, Washington, D.C., By Miguel A.
Estrada, Jonathan C. Bond, Co-Counsel for Third-Party
States Attorney's Office, Tucson, By Robert L. Miskell,
Henry Charles Whitaker, Counsel for Amicus Curiae United
States of America.
Peter B. Swann delivered the opinion of the court, in which
Presiding Judge Patricia A. Orozco and Judge Kent E. Cattani
B. Swann, Judge:
In Kobold v. Aetna Life Ins. Co., 233 Ariz. 100, 309
P.3d 924 (App. 2013) (" Kobold I " ), we
held that 5 U.S.C. § 8902(m)(1) of the Federal Employee
Health Benefits Act (" FEHBA" ) did not preempt
Arizona law forbidding subrogation in personal injury cases.
After the Arizona Supreme Court denied review, the Office of
Personnel Management (" OPM" ) promulgated new
regulations, set forth in 5 C.F.R. § 890.106, that
construe § 8902(m)(1) to include subrogation and
reimbursement terms in FEHBA contracts. In light of the new
regulations, the United States Supreme Court vacated our
opinion and remanded the case for reconsideration of the
preemptive effect of the FEHBA. Aetna Life Ins. Co. v.
Kobold, 135 S.Ct. 2886, 192 L.Ed.2d 918
(2015). We hold that the statutory
interpretation embodied in the new federal regulations is
entitled to deference in accordance with Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and,
accordingly, we are bound to interpret the FEHBA as
preempting Arizona anti-subrogation law. We therefore reverse
the superior court's entry of summary judgment for
Kobold, and remand with instructions to grant Aetna's
cross-motion for summary judgment.
AND PROCEDURAL HISTORY
Kobold was injured in a motorcycle accident in 2006. Aetna
paid Kobold's medical providers almost $25,000 for his
treatment related to the accident. Kobold later recovered
$145,000 in a settlement with the parties allegedly
responsible for the accident.
Under the terms of the insurance plan, and contrary to
Arizona law, Aetna was entitled to subrogation and
reimbursement in the event that Kobold recovered from a
responsible third party. Relying on these contractual
provisions, Aetna asserted a lien on the settlement proceeds
for the medical expenses it had paid. The alleged tortfeasors
deposited the disputed portion of the settlement sum with the
superior court, and filed an interpleader action against
Kobold and Aetna.
Kobold and Aetna filed cross-motions for summary judgment in
which they disputed whether § 8902(m)(1) applies to
subrogation and reimbursement provisions. The superior court
ruled that the question had been resolved in Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,
126 S.Ct. 2121, 165 L.Ed.2d 131 (2006), and granted summary
judgment for Kobold. Aetna appealed.
Concluding that McVeigh had not in fact decided the
issue, we affirmed based on our own interpretation of the
statute. Applying principles of statutory construction, we
held that subrogation and reimbursement provisions do not
fall within the scope of § 8902(m)(1). We rejected
Aetna's argument that we were required to defer to a
contrary interpretation set forth in a position letter sent
from the OPM to FEHBA carriers, holding that the letter was
not entitled to ...