The only exception to this rule is legislatively-sanctioned subrogation that overrides subrogations equitable foundation. Wisconsin law states that subrogation rests upon principles of equity.
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The bottom line is that an ERISA plans subrogation clause will preempt a state law that prevents subrogation unless the state law is a law regulating insurance and the ERISA plan is a fully-funded plan AKA an insured plan as opposed to self-funded plan.
Subrogation in law. Johnson 320 NW2d 1 Wis. A self-funded ERISA plans subrogation clause will always preempt a state law against subrogation. While common law subrogation requires that the insured be made whole this is apparently not the case with.
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