specially concurring:
I would affirm the trial court, but I do not agree with the entire analysis of the majority opinion.
In its principal contention the estate asks us, under principles of equity and public policy, to either deny or restrict Sundstrand’s contractual right to recoup up to the full amount of its medical expense payments from the settlement. Sundstrand responds that the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (1988) preempts State judicial or statutory limitations on subrogation provisions in self-insured employee benefit plans. Although the estate acknowledges that there is authority for Sundstrand’s position (see, e.g., Reilly v. Blue Cross & Blue Shield United (7th Cir. 1988), 846 F.2d 416), the estate asks us to rely on contrary authority (see, e.g., FMC Corp. v. Holliday (3d Cir. 1989), 885 F.2d 79).
The Supreme Court recently addressed these conflicting decisions on this issue and ruled that States may not restrict contractual subrogation provisions contained in self-insured employee benefit plans. (FMC Corp. v. Holliday (1990), 498 U.S. _, 112 L. Ed. 2d 356, 111 S. Ct. 403.) The estate concedes in its reply brief that, if ERISA’s preemption provisions are applied, “then all state laws including Illinois common law of subrogation and equity are preempted.” Thus, the Supreme Court’s decision in Holliday preempts judicial modification of the contractual subrogation provision. The majority’s analysis of the validity of the subrogation provision under Illinois law is unnecessary, and I do not partake in it. I concur in the balance of the majority opinion regarding the other issues raised.