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Litigation Essentials: Strategies for Resolving Insurance Disputes

Wed, 01 Jan 2025 15:49:47 GMT

Insurance companies often present themselves as helpful and supportive, but in reality, they often profit by minimizing or denying claims. Insurance disputes can happen in multiple contexts, from property damage claims to liability coverage disagreements. These disputes often lead to financial stress, because individuals rely on these benefits during times of need such as after a medical condition, the loss of a loved one, accidents, or natural disasters. Understanding the litigation essentials and effective strategies for resolving these disputes is crucial for both policyholders and insurers. At DL Law Group, we are dedicated to helping you pursue justice against insurance companies by providing you with the right tools and guidance throughout the legal process. Here are some of our key approaches to consider:

1. Detailed Documentation

Successful insurance dispute resolutions always begin with detailed documentation. Whether you're the insured or the insurer having clear organized records is going to be a vital part of litigation. These include:

Policy Documents: It’s important to keep records of anything pertaining to your coverage, like your insurance policy, endorsements, and any communication regarding it. These documents will be a strong reference during litigation.
Claims Documentation: Keep detailed documentation of all your interactions related to the claim in place. Ensure you note all dates, times, and names of representatives when you email, call, or write to them.
Evidence of Loss: Maintain any records of losses incurred, like photos, invoices, and repair estimates.

2. Engage in Open Communication

Open communication is an essential part to any professional setting, or conflict resolution, and is key to resolving disputes. When both parties engage in open and honest dialogue, it reduces the likelihood of any misunderstandings and ensures everyone is on the same page. It’s important to consider these tactics:

Pre-Litigation Discussions: To save your time and legal expenses, try to resolve the issue through negotiation or mediation. If these efforts are unsuccessful, litigation may be a necessary option.
Regular Updates: Policyholders should be accountable for following up on their claims and ensuring all parties are informed throughout the process.

3. Utilize Mediation and Arbitration

Other alternative dispute resolutions (ADR) include mediation and arbitration, these options tend to be less expensive and quicker than litigation.

Mediation: A mediator, typically a third party, helps the insurer and policyholders by facilitating a discussion between the two to reach a voluntary settlement. The mediator does not take sides in the dispute or offer any legal advice.
Arbitration: Is a formal process where an arbitrator resolves the dispute between both parties, by listening to both sides, considering the evidence, and making a legally binding decision.

4. Understand the Legal Framework

It’s crucial to be aware of the legal framework surrounding insurance disputes. This includes:

State Laws: Make sure you familiarize yourself with any relevant state regulations, as insurance laws vary by state. This will affect your coverage, claim processes and dispute resolution strategies.
Bad Faith Claims: When handling claims insurers must act in good faith, otherwise policyholders may have grounds for legal claims.

5. Consider Expert Opinions

When undergoing disputes, expert opinions can be an asset. As professionals that can provide the policyholders with testimonies or reports on industry standards, damages, or other material can strengthen your position.

6. Prepare for Litigation

If all else fails, litigation will be the next course of action. You’ll have to consider these steps:

Choose the Right Attorney: When selecting an attorney make sure they have expertise in insurance law and a proven track record. An attorney with experience and knowledge will be a vital part in helping you navigate through the complexities of your case.
Develop a Strong Case: A well-prepared case can influence your settlement negotiations and litigation outcomes: therefore, it’s essential to gather all evidence, expert opinions, and documentation.
Know Your Goals: Define your goals and make sure you are clear on what you aim to achieve through litigation, whether it’s compensation, policy clarification, or something else.

Resolving Insurance disputes can be challenging, but employing the right strategies and having a strong team by your side can significantly ease the process. The DL Law Group has championed policyholders for decades in the San Francisco Bay Area. As we understand the inner workings of insurance companies and how they often employ aggressive defense attorneys to minimize payouts on claims. To level the playing field, contact our experienced attorneys at DL Law. We will help you seek justice and represent you in the courtroom against some of the most formidable insurance companies.

The Role of Legal Experts in Insurance Claims: Ensuring Fair Treatment and Justice

Sun, 01 Dec 2024 15:47:45 GMT

Insurance claims can be complex and daunting, often requiring expert legal assistance. This post will discuss the crucial role legal experts play in handling various insurance claims, ensuring fair treatment and justice for policyholders.

Types of Insurance Claims

Legal experts assist with a variety of insurance claims, including:

Disability Insurance Claims: For individuals unable to work due to illness or injury.
Long-Term Care Insurance Claims: Covering extended medical and personal care services.
Bad Faith Insurance Claims: Addressing unfair practices by insurers.
Property Insurance Claims: Related to damage or loss of property.
Life Insurance Claims: Providing financial security to beneficiaries after the policyholder's death.

Common Challenges in Insurance Claims

Policyholders often face several challenges when filing claims, such as:

Complex Policy Language: Understanding the terms and conditions of insurance policies can be difficult.
Documentation Requirements: Gathering and submitting necessary documentation is often a cumbersome process.
Insurer Disputes: Insurers may dispute the validity or amount of claims.
Claim Denials: Claims can be denied for various reasons, sometimes unfairly.

Benefits of Legal Assistance

Legal experts provide invaluable support by:

Interpreting Policies: Helping policyholders understand their coverage and rights.
Preparing Claims: Assisting in the collection and submission of required documentation.
Negotiating with Insurers: Advocating for fair settlements on behalf of policyholders.
Handling Appeals: Managing the appeals process for denied claims.
Litigating Disputes: Representing policyholders in court when necessary.

Choosing the Right Legal Expert

When selecting a legal expert for your insurance claim, consider:

Experience: Choose a lawyer with a track record in handling similar cases.
Reputation: Research reviews and testimonials from previous clients.
Communication: Ensure the lawyer communicates clearly and keeps you informed throughout the process.
Fees: Understand the fee structure and any potential costs involved.

Legal experts play a vital role in navigating the complexities of insurance claims, ensuring policyholders receive fair treatment and justice. Seeking professional legal assistance can significantly improve the chances of a successful claim and provide peace of mind during challenging times.

Chronic Fatigue: Navigating Disability Insurance Claims

Fri, 01 Nov 2024 15:46:11 GMT

Chronic fatigue syndrome (CFS) can severely impact one’s ability to work, making disability insurance claims essential for those affected. This post will guide those suffering from CFS through the process of claiming disability insurance, addressing common challenges and providing tips for a successful claim.

Understanding Chronic Fatigue Syndrome

CFS, also known as myalgic encephalomyelitis (ME), is characterized by extreme fatigue that doesn’t improve with rest and worsens with physical or mental activity. Other symptoms include sleep disturbances, memory issues, and muscle pain. Diagnosing CFS can be challenging due to its varied symptoms and overlap with other conditions.

Eligibility for Disability Insurance

CFS can qualify for disability benefits if it significantly impairs your ability to work. To establish eligibility:

Medical Documentation : Obtain thorough medical documentation from healthcare providers, including detailed symptom descriptions, test results, and treatment history.
Functional Assessments : Provide assessments of your physical and mental limitations from medical professionals.

Filing a Claim

When filing a disability insurance claim for CFS, follow these steps:

Notify Your Insurer : Inform your insurance company of your condition and intent to file a claim.
Gather Medical Records : Collect comprehensive medical records, including diagnosis, treatment plans, and doctors’ notes.
Complete Claim Forms : Fill out the required forms accurately and completely.
Submit Supporting Documentation : Include additional documentation, such as personal journals of daily activities and how CFS affects your functionality.
Follow Up : Stay in regular contact with your insurer and promptly respond to any requests for additional information.

Common Challenges

CFS claims face several hurdles, such as:

Skepticism from Insurers : Insurers may doubt the severity or existence of CFS due to its subjective symptoms.
Insufficient Documentation : Lack of thorough medical records can lead to claim denials.
Functional Capacity Evaluations : Insurers may require evaluations to determine your ability to perform work-related activities.

Legal Support

DL Law Group can assist by:

Ensuring thorough documentation and presentation of your case.
Navigating insurer requirements and challenges.
Representing you in disputes or appeals.

Navigating disability insurance claims for chronic fatigue syndrome can be complex and frustrating. Understanding the process, preparing comprehensive documentation, and seeking legal assistance can significantly improve your chances of a successful claim.

Gainful Occupation: What It Means for Disability Insurance Claims

Tue, 01 Oct 2024 15:44:37 GMT

The term "gainful occupation" often appears in disability insurance policies, but what does it mean for claimants? This post will explain the concept and its implications for disability insurance claims, helping you understand how it affects your eligibility for benefits.

Defining Gainful Occupation

Gainful occupation generally refers to work that provides a certain level of income and is suitable based on your education, training, and experience. In the context of disability insurance, it’s used to determine whether you can perform any job, not just your previous occupation.

Impact on Claims

The definition of gainful occupation can significantly impact your disability insurance claim:

Own Occupation Policies : Consider you disabled if you can’t perform the duties of your specific job.
Any Occupation Policies : Consider you disabled only if you can’t perform any job for which you’re reasonably suited.

Assessing Your Situation

To determine if your work qualifies as gainful occupation, insurers consider:

Income Level : Whether the job provides sufficient income, often a percentage of your pre-disability earnings.
Suitability : Whether the job matches your education, training, and experience.
Physical and Mental Requirements : Whether you can meet the physical and mental demands of the job.

Legal Challenges

Disputes over gainful occupation status are common in disability claims. Challenges may include:

Disagreement Over Job Suitability : Insurers may argue that you can perform certain jobs, while you may feel they’re unsuitable.
Income Discrepancies : Disputes over what constitutes sufficient income.
Changing Definitions : Policies may have changing definitions of gainful occupation after a certain period.

Expert Assistance

Our disability law expert can help navigate gainful occupation issues by:

Reviewing your policy and explaining your rights.
Gathering evidence to support your claim.
Representing you in disputes with your insurer.

Understanding gainful occupation is crucial for disability insurance claimants. Knowing how it impacts your eligibility for benefits and seeking legal assistance when needed can ensure you receive the support you’re entitled to.

Life Insurance: Ensuring Your Loved Ones' Financial Security

Sun, 01 Sep 2024 15:43:12 GMT

Life Insurance: Ensuring Your Loved Ones Are Taken Care Of

Life insurance is a crucial component of financial planning, providing security for your loved ones after you’re gone. This post will discuss the different types of life insurance, how to choose the right policy, and how to ensure you have the right coverage.

Types of Life Insurance

There are several types of life insurance policies, each with its benefits and considerations:

Term Life Insurance : Provides coverage for a specific period, typically 10-30 years. It's often the most affordable option.
Whole Life Insurance : Offers lifelong coverage and includes a savings component that builds cash value over time.
Universal Life Insurance : Combines the benefits of term and whole life insurance, offering flexible premiums and coverage.
Variable Life Insurance : Allows policyholders to invest the cash value in various investment options, offering potential for higher returns.

Choosing the Right Policy

When selecting a life insurance policy, consider the following factors:

Coverage Amount : Determine how much coverage you need to support your dependents and cover debts and expenses.
Policy Term : Decide whether you need temporary (term) or permanent (whole, universal, or variable) coverage.
Premiums : Consider your budget and how much you can afford to pay in premiums.
Riders and Add-ons : Evaluate additional coverage options, such as critical illness or disability riders.

Understanding Policy Terms

Key terms and conditions to be aware of include:

Beneficiary Designations : Ensure your beneficiaries are clearly defined and updated as needed.
Grace Period : Understand the period allowed for late premium payments without policy lapse.
Contestability Period : Be aware of the time frame during which the insurer can contest a claim based on misrepresentations.

Filing a Claim

When it's time to file a life insurance claim, follow these steps:

Notify the Insurer : Contact the insurance company to report the policyholder's death.
Submit Documentation : Provide a certified copy of the death certificate and any required claim forms.
Review the Claim : The insurer will review the claim and may request additional information.
Receive Payment : Once approved, the insurer will pay the death benefit to the designated beneficiaries.

Handling Disputes

Disputes can arise over life insurance claims for various reasons, such as:

Policy Lapses : Claims denied due to policy lapse from missed premium payments.
Contestability : Insurers contesting claims based on misrepresentations during the contestability period.
Beneficiary Disputes : Conflicts over beneficiary designations.

DL Law Group is Here for You

Our team can help assist in:

Reviewing policy terms and conditions.
Negotiating with insurers.
Representing you in legal disputes.

Life insurance is a vital tool for ensuring your loved ones' financial security after your death. Careful planning and legal advice can help you choose the right policy and ensure it serves its intended purpose.

Bad Faith Insurance Claims: Recognizing and Responding to Unfair Practices

Mon, 01 Jul 2024 15:37:17 GMT

Bad faith insurance practices can severely impact policyholders who are already facing challenging circumstances. This post will explore what constitutes bad faith insurance, how to recognize it, and what steps to take if you encounter it.

Defining Bad Faith Insurance

Bad faith insurance occurs when an insurer fails to uphold its duty to act fairly and in good faith towards its policyholders. Common examples include:

Unreasonable Delays: Delaying claim investigations or payments without a valid reason.
Insufficient Investigation: Failing to thoroughly investigate a claim before denying it.
Misrepresentation: Providing misleading information about policy coverage or claim status.
Unjust Denials: Denying valid claims without proper justification.

Recognizing the Signs

Signs of bad faith insurance practices include:

Lack of Communication: Insurers not responding to your inquiries or delaying responses.
Unreasonable Requests: Repeatedly asking for excessive or irrelevant documentation.
Unfair Settlement Offers: Offering significantly lower settlements than what your policy should cover.
Pattern of Denial: Denying claims for dubious reasons or without thorough investigation.

Steps to Take

If you suspect your insurer is acting in bad faith, take these steps:

Document Everything: Keep detailed records of all communications and transactions with your insurer.
Request Written Explanations: Ask for written explanations of any claim denials or delays.
Review Your Policy: Understand the terms and coverage of your insurance policy thoroughly.
File a Complaint: Submit a complaint to your state's insurance regulatory agency.
Seek Legal Advice: Consult a bad faith insurance claims expert to evaluate your case and discuss your legal options.

DL Law Group: Your Legal Recourse

Our team can can assist in:

Filing a lawsuit against the insurer for bad faith practices.
Negotiating a fair settlement.
Representing you in court if necessary.

Bad faith insurance practices can cause significant financial and emotional distress. Recognizing the signs and seeking legal assistance are crucial steps in ensuring fair treatment and justice. Reach out today to learn how we can help you.

Navigating Long-Term Care Insurance: Key Considerations

Sat, 01 Jun 2024 15:34:37 GMT

Long-term care insurance is designed to cover the costs associated with extended medical and personal care services, which are not typically covered by standard health insurance. This post will guide readers through the key considerations when purchasing and claiming long-term care insurance.

Understanding Long-Term Care Insurance

Long-term care insurance provides coverage for services such as in-home care, assisted living, and nursing home care. This type of insurance is crucial for protecting your assets and ensuring access to quality care as you age.

Choosing the Right Policy

Selecting the right long-term care insurance policy involves several critical factors:

Coverage Amount: Determine how much daily or monthly benefit you will need to cover care costs.
Benefit Period: Decide on the length of time benefits will be paid, which can range from a few years to a lifetime.
Elimination Period: Understand the waiting period before benefits begin, typically 30-90 days.
Inflation Protection: Consider adding an inflation protection rider to ensure your benefits keep pace with rising care costs.

Common Exclusions and Limitations

Policies often have exclusions and limitations, such as:

Pre-existing conditions
Specific types of care or facilities
Conditions like dementia or Alzheimer's may have particular stipulations

Filing a Claim

When it's time to file a claim, follow these steps:

Initiate the Claim: Contact your insurance company to begin the claims process.
Provide Documentation: Submit proof of the need for long-term care, including medical records and care provider assessments.
Assessment: An insurance assessor may evaluate your condition and care needs.
Approval: Once approved, benefits will begin after the elimination period.

Legal Support

Claim denials can happen. Legal support is invaluable for:

Interpreting policy terms
Gathering necessary documentation
Challenging denials and appealing decisions

Long-term care insurance is a critical investment in your future well-being. Thorough research and legal assistance are essential for selecting the right policy and ensuring you receive the benefits you need.

Understanding Disability Insurance: What You Need to Know

Wed, 01 May 2024 15:32:23 GMT

Disability insurance is a critical safety net for individuals who can no longer work due to illness or injury. Without it, financial stability can quickly erode, leading to significant stress and hardship. This post will delve into the essentials of disability insurance, covering its importance, types, and the process of claiming benefits.

The Importance of Disability Insurance

Disability insurance provides income replacement if you are unable to work due to a qualifying medical condition. This financial support can be crucial in maintaining your standard of living and covering everyday expenses, such as mortgage payments, utility bills, and medical costs.

Types of Disability Insurance

There are two main types of disability insurance: short-term and long-term.

Short-term Disability Insurance: Provides benefits for a limited period, typically from a few weeks up to a year. It's designed to cover temporary disabilities that prevent you from working for a short period.
Long-term Disability Insurance: Kicks in after short-term benefits end, providing income replacement for more extended periods, potentially until retirement age. This type is crucial for serious or chronic conditions.

How to File a Disability Insurance Claim

Filing a disability insurance claim can be complex and time-consuming. Here’s a step-by-step guide:

Notify Your Insurer: Contact your insurance company as soon as you become disabled.
Gather Documentation: Collect medical records, employment records, and any other documents that support your claim.
Complete the Claim Form: Fill out the required forms from your insurer. Ensure accuracy to avoid delays.
Submit Your Claim: Send your completed forms and supporting documents to your insurer.
Follow Up: Regularly check the status of your claim and respond promptly to any requests for additional information.

Common Challenges in Filing Claims

Incomplete Documentation: Missing or incomplete medical records can delay or derail your claim.
Misunderstanding Policy Terms: Not fully understanding what your policy covers can lead to denied claims.
Insurer Disputes: Insurance companies may dispute the severity of your disability or your eligibility.

Legal Assistance

Navigating a disability insurance claim can be daunting. A disability law expert can:

Help you understand your policy and your rights.
Assist in gathering and presenting evidence.
Represent you in disputes or appeals.

Disability insurance is an essential safeguard for financial stability in the face of illness or injury. Consulting with a legal expert can ensure you receive the benefits you're entitled to, making a challenging time more manageable.

What Is an ERISA Plan?

Sat, 15 Jan 2022 15:07:37 GMT

ERISA stands for the Employee Retirement Income Security Act of 1974. It is a piece of federal legislation that governs employer-provided benefit plans. It sets up minimum standards that employers must adhere to when they offer their employees benefits. These standards include:

Informing employees of their benefits packages
Requiring that insurance providers and administrators follow strict policies for managing employee benefits
Employees may receive legal recourse through federal court

What Is an ERISA Plan?

Not all benefits plans that employees purchase will be subject to ERISA. ERISA exclusively covers benefits plans purchased through private employers. It is important to note that the term ‘private employer’ includes non-profit organizations and charities. Government employees and employees of religious institutions are not covered by ERISA, however.

Which Plans Are Subject to ERISA?

ERISA applies to two major types of plans. ERISA covers traditional pension plans. ERISA also covers plans considered to be “welfare benefits.” This type of plan includes benefits like the following:

Short-term disability insurance
Long-term disability insurance
Health insurance
Life insurance
Unemployment benefits
Vacation benefits
Severance benefits

Which Plans Are Not Subject to ERISA?

Some benefits like worker’s compensation or state-mandated disability plans are not protected by ERISA. The following list includes more benefits an employer may offer which are not covered by ERISA:

Tuition-reimbursement
Cafeteria plans
Payroll practice plans
Safe Harbor plans
Adoption assistance
Tax-deferred compensation plans
Bonus plans

How Does ERISA Help Me?

If your benefit plan is subject to ERISA, you have extra protections if your initial claim gets denied. ERISA allows you 180 days to file a denied claim appeal. However, this appeal will go to federal court where it will have to obey specific processes.

You will want to consult with an experienced ERISA attorney before beginning this process. This is because you will not be able to submit new evidence or documentation if your case goes to court. Additionally, a federal judge, not a jury, will make the final ruling. It is important that your appeal is comprehensive and complete before filing.

Contact a San Francisco ERISA Attorney From Our Firm to Learn More

The goal of ERISA is to protect employee benefits from mismanagement. Even so, filing and winning a claim can be difficult. This is because the law tends to favor insurance companies. They are usually able to deny claims with no repercussions.

Further, since ERISA is a federal law, ERISA claims are subject to specific procedures. Filing a claim, introducing evidence, and negotiating are best done by an experienced ERISA attorney.

Our San Francisco ERISA attorneys have extensive experience fighting for ERISA-protected workers’ benefits. For those struggling to secure their benefits, we encourage you to contact us today. We offer free consultations which you can schedule here .

Proving Pattern And Practice Depositions, Documents and Experts

Mon, 06 Dec 2021 15:05:28 GMT

Discovery is tedious, monotonous, boring, repetitive, time consuming and unexciting. Nevertheless, most victories at trial or good settlements depend on the quality of the discovery that takes place before. Plaintiffs’ firms are usually much smaller and have fewer resources than defense firms. Therefore, from a plaintiff’s perspective, much discovery is defensive-fending off the massive discovery requests. Plaintiff’s, however, are increasingly using discovery in a cost-effective and offensive manner.

For example, let’s say you file multiple claims in different cases or jurisdictions against the same corporate defendant. These often involve essentially the same or similar allegations. Thus, it makes little sense to depose the same witnesses over and over again.

Likewise, where internal company documents are an important part of the litigation, it makes no sense to have to separately depose the custodian of records repeatedly in order to establish authenticity.

In addition, many businesses face mergers and acquisitions. Unfortunately, this means litigants increasingly find that the company they thought they were suing has been acquired, merged with or sold to another entity. Often key officers and managers that were part of company number one, continue in their role with companies two or three. Attorneys may try to hide the ball on this issue. This is especially true if they are aware that a predecessor corporation or individual managing agents may have previously made damaging admissions.

Insurance Companies

The admissibility of deposition testimony obtained in other cases depends on a number of factors. Sometimes the evidence is sought to be admitted on direct. Other times it will be on cross. In other situations, an expert witness may refer it (as constituting a basis for the expert’s opinions and conclusions). The rules differ for all of these situations. We are limiting the scope of this discussion to the use of documents and prior deposition testimony as part of your case in chief on direct examination.

On direct, your first task will be to demonstrate to the Court that the evidence is relevant. In Federal Court, under FRE 401, relevant evidence is defined as having a “tendency to make the existence of any fact . . . of consequence . . . more probable or less probable then it would be without the evidence.” Under the State Rules (Ev.Code 210) proffered evidence is relevant if in the light of logic, reason, experience, or common sense it has a tendency to prove or disprove a disputed fact. Bear in mind that the relevance standard is a very broad and juries are instructed only to give the evidence the weight they consider appropriate.

Assuming that the evidence is relevant, the Court will then address whether there is a sufficient identity of parties and issues between the past and present actions. See Fed. R. Civ. P. Rule 32. Opposing counsel may claim that since the new merged company was not a party to the prior case, there is insufficient identity of parties for admitting the prior deposition. Judges have great discretion under both Federal and State rules and most judges will see such an argument as a poor attempt at obfuscation and reject the defense’s argument.

The next part of the Court’s inquiry will focus on the circumstances surrounding the deposition, and particularly the cross-examination of the deponent. In Federal Court, Federal Rule of Evidence 804(b)(1) states that former testimony given under oath at another hearing, whether in the same case, a different case, or in a deposition, may be admissible in the current proceeding provided:

the witness is unavailable; and
the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

Thus, under this Rule, the testimony may be offered against the party by whom it was previously offered; or against a successor in interest to a party to the prior action who had a similar motive and opportunity to develop the testimony in the previous action. See U.S. v. Feldman, 761 F.2d 380 (7 th Cir. 1985). Moreover, courts admit the testimony so offered as an exception to the hearsay rule.

Similarly, in California State Court, under Evidence Code 1291(a)(2) and 1292(a)(3), and California Code of Civil Procedure Section 2022, depositions from a different lawsuit can be introduced into evidence if the deponent is presently “unavailable” to testify, and if the party against whom deposition testimony is offered either offered the testimony in evidence in the former action or had the right and opportunity to cross-examine the deponent, with the same motive or interest as that party has in the current action. Regarding unavailability, it may be necessary to obtain a sworn declaration from the witness.

Hangarter v. Paul Revere and UnumProvident

In a recent case handled by our office, Hangarter v. Paul Revere and UnumProvident,236 F. Supp.2d 1069, the plaintiff sought to introduce the prior deposition testimony of a past medical director and Vice President of Provident Life and Accident. As mentioned, this was a predecessor corporation to Provident Companies, which later morphed into UnumProvident. The former medical director, Dr. William Feist, was employed by Provident after Chandler and Mohney had taken over. Dr. Feist had an opportunity to witness, first hand, what he characterized as the “profound philosophical changes” that were made when Chandler and Mohney came on board. Dr. Feist testified in his deposition that he considered the changes made by Chandler and Mohney to be unprincipled. He also testified that he resigned as a result. Dr. Feist’s testimony was consistent with the manner in which Plaintiff’s claim was handled and was also consistent with confidential internal documents that plaintiff sought to admit; with the testimony of Plaintiff’s expert, Frank Caliri; as well as current corporate officials. Mr. Mohney testified that he was responsible for the claims philosophy for all of the entities in question.

Defendants strenuously argued that Provident Life and Accident Insurance Company, UnumProvident and Paul Revere were three separate entities and since Dr. Feist had worked for Provident Life and Accident, his testimony was inadmissible. Defendants also argued that their lawyers in the Hangarter case did not have an opportunity to personally cross-examine Dr. Feist.

Relying on the Ninth Circuit case of Murray v. Toyota Motors Distributors, Inc. 664 F.2d 1377, 1379-80 (1982), In Re IBM Peripheral EDP Devices Antitrust Litigation, 444 F.Supp.110, 113 (1978), and Weinstein On Federal Evidence, section 804.044(a) the Judge ruled that Dr. Feist’s deposition was admissible. In Murray the appellate Court ruled that former deposition testimony was properly admitted because the parties had a similar motive to cross examine in both cases. The Court held that the motive need only be “similar, not identical.” In IBM, the Court held that the exception to the hearsay rule for former testimony is when “a party’s predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness.”

In Hangarter the Court found that UnumProvident had sufficient opportunity to cross-examine Dr. Feist and that the interests from which he was cross-examined were essentially identical to the interests of Paul Revere and UnumProvident in the instant case. Moreover, the Court also stated that Paul Revere and UnumProvident’s argument that the companies had nothing to do with each other was “disingenuous.”

After the review of the deposition testimony, there was a vigorous cross-examination by an attorney defending the same company. After receiving a certificate of Dr. Feist’s unavailability, the Court agreed with Plaintiff and deposition excerpts were read to the jury. This whole matter is now under consideration by the Court of Appeals.

In seeking to introduce past deposition testimony from another case, carefully examine the interests of the party who cross-examined the deponent. You should also examine the relevance of the testimony you seek to introduce to the present trial. It is important to provide a written points and authorities for your judge setting forth the basis for the admissibility of the evidence in question.

Introducing Documents Obtained Through Discovery in Other Cases

We have been in the position of repeatedly suing the same defendant or defendants on the same causes of action. Through discovery in past cases we have obtained thousands of pages of internal documents, many quite damning. Defendants will often make the same arguments about separate entities as those previously mentioned. In addition, they often argue that there is inadequate authentication if the documents were not produced in this case. They will also argue, for the same reasons, that the documents are irrelevant.

With regard to the relevance objection, as with prior deposition testimony, it will be necessary to provide a nexus between the documents of the predecessor or successor corporation and the current defendant or defendants. Evidence that the previous practices have been adopted by your current defendant, or that there was a pattern of denials into which your plaintiff squarely fits can be very persuasive.

Once the relevancy hurdle has been past, it is also necessary to authenticate the documents in order for them to be admitted into evidence. Even though the documents were produced by one of the named defendants, defendants will still argue that the documents are not authentic. Under the Federal Rules of Evidence, “there is no single way to authenticate evidence and, in particular, direct testimony of custodian or percipient witness is not a sine qua non to the authentication of a writing. Fed. R. Evid. 901(a), 28 U.S.C.A.” U.S. v. Holmquist 36 F.3d 154 C.A.1 (Mass.), 1994.

Moreover, the burden of authentication of evidence does not require the proponent to rule out all possibilities inconsistent with authenticity or to prove beyond any doubt that the evidence is what it purports to be; rather, standard for authentication, and hence for admissibility, is one of reasonable likelihood. Fed.Rules Evid.Rule

901(a), 28 U.S.C.A. Alexander Dawson, Inc. v. N.L.R.B. 586 F.2d 1300 C.A.9, 1978.

The issue for the trial judge under Rule 901 is whether there is prima facie evidence, circumstantial or direct, that the document is what it is purported to be. If so, the document is admissible in evidence. See, e.g., United States v. Wilson, 532 F.2d 641, 644-45 (8th Cir.), Cert. denied, (1976); United States v. Scully, 546 F.2d 255, 269 (9th Cir. 1976), Cert. Denied. It is then up to the jury to make its own determination of the authenticity of the admitted evidence. They then weigh each piece of evidence. Similar rules apply in state courts. See Cal. Evid Code §350 et seq. (relevance), Cal. Evid. Code §1400 et seq. (authentication).

As with past deposition testimony, providing a written points and authorities for your judge setting forth the basis for the authenticity and relevance of the documents can be very helpful.

Establishing a corporate pattern and practice of conduct is essential to obtaining an award of punitive damages. In addition to saving an enormous amount of time and money in discovery, introducing past deposition testimony and documents obtained in different cases can often provide compelling evidence of the nexus between the conduct exhibited in your case and a corporate culture that will further substantiate your case.

Can I Pursue A Bad Faith Claim Under Erisa?

Tue, 26 Oct 2021 15:03:03 GMT

Insurance benefits operate as a contract between the policyholder and the insurance company. The policyholder pays premiums over time in exchange for coverage later if needed. This contractual understanding leaves many individuals shocked when their claims later get denied.

Insurance companies must weed out invalid claims to protect the insurance pool. However, they may also engage in bad faith tactics to intentionally deny valid claims. In this situation, the policyholder may file a bad faith lawsuit for damages. This option is only available to people with certain types of policies. Below, our insurance lawyers in San Francisco explain bad faith claims under ERISA.

Individual Insurance Policies vs. Group Plans

The type of insurance plan you have directly affects your options for disputing a bad faith denial. You should determine whether your plan is an individual policy or a group plan.

An individual insurance plan is not purchased through a group or employer. Typically, individuals purchase individual policies if they are contract workers, self-employed or desire supplemental benefits. Individual insurance plans are subject to state laws, including laws about bad faith practices.

Plans purchased through a group or employer, however, are subject to a federal law called ERISA. Within this law is a provision about preemption. Essentially, ERISA pre-empts, or trumps, any state laws about the benefit plan. This means that plans subject to ERISA do not play by the same rules as individual plans when it comes to bad faith claims.

Can I File a Bad Faith Claim Under ERISA?

While ERISA was initially designed to protect certain workers’ benefits, the law does not protect policyholders against bad faith. In other words, you cannot file a bad faith claim under ERISA.

If ERISA governs your policy, then your options for overturning a denied claim differ in significant ways. Further, recoverable damages are significantly limited. ERISA damages only include the amount owed under the insurance contract, and sometimes attorney’s fees. An insurance company is not punished for getting caught denying a group policy claim in bad faith. They must pay out what they should have paid out originally.

Can I File a Bad Faith Claim Under an Individual Policy?

State laws cover individual policy claims for a breach in contract. This means states can hold insurance companies accountable for engaging in bad faith practices in regard to a contract. Damages awarded in these cases may include:

Punitive damages
Attorney’s fees
Awards for other costs
Prejudgment interest

Secure Your Insurance Benefits With Help From a San Francisco ERISA Attorney

While pursuing a bad faith claim under ERISA is not possible, you still have options. Your best bet for overturning a denied claim is to work closely with an experienced ERISA attorney.

After a denied claim, your next step is to appeal the decision, but the appeals process is also subject to ERISA. The appeals process is your very last chance to submit new evidence for your claim. If your appeal fails, then you can sue the insurance company, but your suit cannot introduce new evidence. For this reason, you will want an experienced San Francisco ERISA attorney on your side.

Schedule a free consultation with us to learn more about DL Law Group’s legal services. You can contact us by phone at 415-234-1499 or through our online messaging portal .

What Is the ERISA Appeals Process for a Long-Term Disability Insurance Claim Denial?

Fri, 23 Jul 2021 14:43:48 GMT

ERISA lo ng-term disability insurance claims are denied for many different reasons . However, this does not mean the insurance company is right. If your ERISA claim has been denied, you have the right to appeal the insurance company’s decision. But, you should move quickly. ERISA plans only allow you 180 days to file a denied claim appeal. Below, our ERISA attorneys explain the ERISA appeals process.

ERISA Appeals Process

If your ERISA long-term disability claim is denied, you must file an internal appeal with your insurance company before you challenge the decision in court. Generally, you have 180 days to file an appeal. It is critical that you make this deadline. If you miss your deadline, you may lose your chance to recover benefits.

Your insurance company must provide you with an electronic or written letter of denial. This letter should provide you with information about why your claim was denied based on your plan and evidence submitted. You may also request any relevant information from your insurance company about your claim.

Before you begin the ERISA appeals process, you should consult with an experienced ERISA lawyer . Your attorney can help you:

Review and understand your insurance company’s denial of your claim
Gather any necessary and/or additional evidence for your appeal
Ensure that you do not miss important filing deadlines
File a comprehensive ap peal on your behalf

After you file the appeal, you cannot submit any new evidence if your case goes to federal court. If your case goes to court, there will not be a jury. A judge will review your initial claim and your appeal before making a decision about your benefits. Because of this, it is critical that your appeal is robust and contains as much evidence as possible.

Keep in mind that some pla ns require two appeals with your insurance company before you can file a lawsuit. Once you exhaust the appeals process, and if your claim remains denied, then you may bring an ERISA lawsuit to seek your long-term disability insurance benefits.

How Our San Francisco ERISA Lawyers Help Our Clients

Our San Francisco ERISA attorneys are dedicated to helping our clients obtain the benefits that they need and deserve. We provide a full range of services surrounding ERISA claims, including:

Applying for benefits
Appealing claim denials
Appealing benefits termination
Litigation

We handle ERISA cases on a contingency fee basis. This means that you do not pay any legal fees until we are successful on your behalf.

Contact Our Experienced Lawyers About Your Denied ERISA Claim

If your ERISA long-term disability claim has been denied, we encourage you to reach out to our lawyers. We have extensive experience helping Californians appeal ERISA claim denials. We can answer any ERISA-related legal questions you may have and determine how we may be able to help you. Schedule a free consultation with us to discuss your situation by calling us at 415-234-1499 or filling out our online contact form .

Will the Coronavirus Outbreak Affect My Long Term Disability Benefits?

Wed, 19 May 2021 14:41:51 GMT

Collecting long term disability benefits is never easy. Yet, the recent coronavirus outbreak in San Francisco and across the country has made it even more challenging. Are you wondering what will happen to your benefits during this global pandemic? Are you concerned that you will not meet the insurance company’s deadlines? Are you worried you will not have time to appeal a denial? During this uncertain time, disabled individuals need help now more than ever. The status of your LTD benefits is up in the air at a time when receiving those benefits is more important than ever. That is why you need an experienced disability insurance attorney on your side. Your attorney can look out for your rights during this pandemic and beyond.

The Coronavirus and Long Term Disability Benefits

The coronavirus, also called COVID-19, is raging across the country. To slow the spread of this virus, businesses and companies have closed. Major disability insurance companies are no exception. Many of their employees now work from home. This has resulted in some disruptions to their efficiency and productivity. As a result, you may not collect the benefits you need.

If you have concerns about how the coronavirus will impact your long-term disability benefits, there are things you can do. First, consult with your own LTD insurance carrier. Many insurers recently updated their websites. These sites now contain valuable information on the coronavirus and its impact on their claims process. Receiving Disability Benefits Claim Payments

The coronavirus should not impact your insurer’s financial ability to meet benefit claim payments. Most companies rely on automated payments to deliver benefits to recipients. As such, this process should remain unchanged during this time. Many insurers vowed to maintain continuous operations during this pandemic. This starts with continuing automatic payments.

Disability Claims Processing

New claims might see a delay in processing during this time. Even though insurers and their employees have remote work set-ups in place, you could see longer wait times. Disability claims administrations often rely on active personnel participation. As such, approving or denying claims may take longer than usual.

Completing Forms for Insurers

If you have forms to complete for your insurer, such as a medical record or follow-up, do not worry. Many physician’s offices are only accepting emergency cases. Dealing with disability paperwork does not qualify as an emergency. If you received forms in recent weeks, it is important to speak to an experienced disability insurance attorney. Your attorney can request the necessary extensions you need to complete the forms. You may need a significant extension of 90 days to get through this pandemic.

Contact a Disability Insurance Attorney in California

At the DL Law Group, our San Francisco disability insurance lawyers are here for you during this difficult time. We know that the coronavirus pandemic impacts everyone, but especially those with disabilities. You may not receive your long term disability benefits when you need them. If you find your claim denied or have trouble collecting LTD benefits, we can help. Call us at 415-234-1499 or fill out our confidential contact form for more information. We offer free consultations and can meet with you remotely during this time.

How To Prove Insurance Bad Faith

Mon, 29 Mar 2021 14:36:08 GMT

Explained By Our Insurance Bad Faith Lawyers In San Francisco

Insurance companies have an essential function in our society. We depend on insurance companies to reimburse us when we are sick or when we suffer property damage. When we pay our monthly premiums to insurance companies, we rightfully expect our policies will be there to offer a helping hand when we need them most. Unfortunately, insurance companies do not always fulfill their contractual obligations.

As experienced insurance bad faith lawyers, we know that insurance companies routinely deny valid claims. Insurance bad faith is against California state law. You may be able to hold insurance companies accountable for bad faith.

What Is Insurance Bad Faith?

There is no universal definition for insurance bad faith. States have varying insurance laws. However, insurance bad faith cases generally involve insurance companies who engage in unfair or unreasonable business practices. Denying valid claims is an example of insurance bad faith. When an insurance company breaches its duty of good faith during the claims process, it is a violation of California state law.

There are a few elements to a bad faith claim:

The insurance company withheld benefits under the policy. However, you must demonstrate that you had a valid claim and that the insurance company still denied the claim.
The insurance company did not have a sufficient reason for denying benefits. If the insurer did not act within reason when denying your claim, then it may be insurance bad faith.

Possible examples of insurance bad faith may include:

An insurer that engages in deceptive business practices.
An insurance company that fails to respond to a valid insurance claim.
An insurance company that fails to provide justification for denying a claim.

Each case is going to be different. We strongly encourage you to contact our insurance bad faith attorneys for a free consultation. We can help you determine if insurance bad faith occurred under California law.

How to Prove Insurance Bad Faith

It goes without saying that you should have a good understanding of how your insurance policy works. Consider reading the fine print. Some attorneys will even help you understand your insurance policy as a service. You should make sure that what you are requesting a claim for is covered by your insurance policy. The additional tips below may help with an insurance bad faith claim in California.

Keep detailed records. Keep records of all communication with your insurance company. Every phone call, every email, every voicemail. Make sure you have information such as who you spoke with, what was discussed and what time the conversation took place. Be sure to write down this information.
Appeal the denial. You can appeal a denial from your insurance company. Your provider must adhere to strict procedural rules during the appeals process. You can also send a demand letter to the insurance provider.
File a bad faith complaint. You should also consider hiring a lawyer to file an insurance bad faith claim. An insurance bad faith lawyer can make sure your claim is properly filed and can review the available evidence.

Can You Sue an Insurance Company for Bad Faith?

It depends. Our San Francisco insurance bad faith attorneys can help you review your possible legal options. We can help you determine which steps you would need to take to file an insurance bad faith lawsuit in California – or if it would even be an option.

Contact Our Insurance Bad Faith Attorneys in San Francisco for a Free Consultation

DL Law Group can help if you want to learn more about legal options for resolving insurance bad faith. Contact us if you have questions about how to prove insurance bad faith. You can contact our San Francisco insurance bad faith lawyers for a free consultation by dialing 415-234-1499 or by using the case review form on our site.

Attorney Katie Spielman Featured In The Mighty Article

Wed, 02 Dec 2020 14:31:40 GMT

The Article Discusses Issues Mental Health Practitioners Have With Health Insurance Companies

Mental health problems affect millions of Americans across the country. Major depression, substance abuse disorders, mood disorders and psychosis are an everyday reality for many Americans and their families. Despite living in a country with advanced health care options, many people living with a mental illness struggle to afford care. It would be easier for them to access mental health services if insurance companies stopped creating barriers for patients and providers.

The Mighty , a community and publisher for people facing health challenges, featured attorney Katie Spielman of DL Law Group. In the article, which discussed parity issues with mental health coverage , Katie discussed the burden many mental health patients and their providers face due to a broken health care system that favors insurers.

Many patients struggle to get insurance claims approved. Mental health practitioners suffer financially and professionally as a result of issues with insurance coverage.

Mental Health Parity and Issues Providing Mental Health Services

In 2008, federal lawmakers passed a mental health parity law that required insurance companies to provide equal benefits for physical and mental health. Mental health parity expanded when the Patient Protection and Affordable Care Act went into effect. The Patient Protection and Affordable Care Act, signed into law by Barack Obama in 2010, also made mental health and substance abuse treatment essential health benefits.

Despite these federal laws, mental health services remain out of reach for many patients. In California, which has the highest rate of unmet mental health needs in the United States, many patients have to pay out of pocket for services. An estimated 42 percent of California mental health practitioners do not accept insurance. This is not the fault of mental health practitioners, but insurance companies who often refuse to allow more providers into their network. There are also numerous problems associated with being an in-network practitioner.

Due to high out-of-pocket expenses, patients may be unable to pay practitioners for mental health services. Even in cases where insurance companies cover services, the amount and rate of reimbursement is often not enough to cover overhead expenses for running a private practice.

When mental health practitioners accept insurance, many have issues getting claims to go through. It is not uncommon for practitioners to remain unpaid.

Despite being required by law to provide equal access to mental and physical health, it is generally difficult to hold insurers legally accountable for the numerous parity issues facing patients and practitioners.

We Help Californians Fight Health Insurance Companies

Mental health parity issues affect millions of Americans, especially here in California. We strongly encourage you to read The Mighty’s article on this issue to learn more.

If you have questions about how to resolve issues with an insurance company who wrongly refuses to provide mental health coverage, then please give us a call at 415-234-1499 or use the contact form on our site.

ERISA Disability Insurance Appeals vs Private Disability Insurance Appeals

Mon, 09 Nov 2020 14:29:11 GMT

Our San Francisco ERISA Attorneys Explain the Differences

Life after an illness or injury can be far more difficult. For some people, the prospect of working at a regular job is no longer possible. Some people may purchase disability insurance to cover a portion of their expenses should they become ill or seriously injured. In other cases, employers may offer disability insurance for these purposes.

Insurance companies are primarily concerned with making money. Unfortunately, this means an insurance company may unfairly deny a disability claim when you need it most. Your options for appealing a denied claim may vary depending on whether your policy is privately held or offered through an employer.

Employer-based insurance policies fall under ERISA’s umbrella. ERISA, also called the Employee Retirement Income Security Act of 1974, is a federal law that covers benefits packages offered by employers. If you have a private plan that you purchased on your own, then ERISA would not come into play during the appeals process.

ERISA Disability Appeals and Bad Faith

If you have a long-term disability insurance policy through your employer, chances are ERISA will come into play should you have to go through the claims appeals process.

You have the right to file an appeal if your policy carrier denies your claim. Depending on the circumstances, you may be able to appeal the carrier’s decision. If your injury occurred due to your job duties, then you have to go through your employer’s workers’ compensation carrier instead.

Insurance companies may wrongfully deny your claim through a process called “bad faith.” If your employer’s carrier is guilty of insurance bad faith, then you may be unable to file a bad faith claim. ERISA is a federal law that does not protect policyholders against bad faith. Since it is a federal law that trumps California state laws on bad faith, you may have much more difficulty recovering what you are owed under the policy.

Even if you succeed in appealing the denied claim, the insurance carrier only has to pay what they should have paid out originally. You would be unable to recover damages caused by the bad faith denial. You can learn more about ERISA policies and bad faith on our website.

Private Disability Insurance and Bad Faith

If you have a disability insurance policy that you purchased privately, you have more options during the appeals process.

California law governs private insurance policies, so restrictions on insurance bad faith apply. If your carrier denies a claim in bad faith and attempts at appealing the denial are unsuccessful, then you may be able to hold the carrier accountable for a breach of contract. Unlike with an ERISA policy, you could recover what the carrier owes you under the policy and additional damages from the bad faith claim. Our San Francisco bad faith attorneys can help you determine whether it is possible to sue an insurance carrier for a breach of contract.

Contact Our San Francisco ERISA Attorneys to Learn More

Questions about appealing a disability claim? We encourage you to contact DL Law Group for a free initial consultation. We can explain your potential options for appealing the claim. To schedule a consultation fill out the contact form on our site.

Why Would A Disability Claim Be Denied?

Tue, 28 Jul 2020 14:24:32 GMT

There are many reasons why an insurance company could deny your disability claim. The most common reason is that you lack sufficient medical evidence proving your disability. Other common reasons for denying a disability claim include:

Improperly completed claim forms
Failure to comply with an independent medical examination
Being uncooperative during the application process
Not following your doctor’s prescribed treatment

Insurance companies must act in good faith under the law. This includes engaging in fair claims practices. However, insurance companies want to make as much profit as possible. They may choose to deny your valid disability claim. They may also choose to pay a lower amount than what your claim is worth. If this is the case, then you should consult with a San Francisco disability benefits attorney. He or she can help you appeal your disability claim denial. Additionally, you may have the option of filing a California bad faith lawsuit.

What Percentage of Disability Appeals Are Approved?

Only a small percentage of disability appeals (around 10-15 percent) result in an approval. If the insurance company denied your disability appeal, then you should consult with an experienced attorney immediately. He or she will know the laws in California about bad faith insurance practices. You may discover that you have the option of filing a California bad faith lawsuit.

How Do I Sue an Insurance Company for Bad Faith?

Are you looking to file a California bad faith insurance lawsuit? If so, then it is important to know which type of insurance policy you have. Most people receive disability insurance through an employee group disability plan. In this case, you will need to exhaust the appeals process before suing your insurer for bad faith.

However, you may receive disability insurance through an individual plan. In this case, you may have more options available to you. A San Jose disability benefits lawyer can review your individual policy to determine the best path forward for your case. He or she can help you through each phase of your bad faith insurance claim in California. This includes launching an investigation into your claim. It also includes negotiating with the insurance company and engaging in litigation efforts when necessary.

Contact Our San Francisco Disability Benefits Attorneys

Was your disability claim appeal denied? Do you believe your insurer acted in bad faith? If so, then you could receive a number of potential remedies. This includes the benefits owed to you under your policy plus interest. However, it could also include a number of other bad faith damages. Our San Francisco disability benefits attorneys can review your situation to determine which remedies are available for your particular case.

At DL Law Group, we are committed to helping disabled people get the insurance money they deserve. Contact us today at 415-234-1499 to schedule a free consultation. You can also reach out to us by completing the form on our contact page. We look forward to discussing your situation.

So You Thought You Had Disability Insurance

Sat, 20 Jun 2020 14:20:31 GMT

Millions of disability insurance policies were sold to psychiatrists, surgeons, and other medical professionals during the 1980s and 1990s. At that time, interest rates were high, and insurance companies were guaranteed high returns on the billions of premium dollars these contracts generated. Now that interest rates have plummeted, some insurers are looking for what one company’s former medical director characterized as “any pretext or excuse for denying a claim or cutting someone off.” Disabled insureds and their patients need to learn what to expect and how to protect themselves against such practices.

Definition of "Total Disability"

Most “own-occupation” policies define total disability as the inability to perform the material and substantial duties of the insured’s regular occupation at the time disability began. In most states, this definition is met when an insured becomes unable to perform his or her material and substantial duties “in the usual and customary fashion and with reasonable continuity.” An insured’s ability to perform some of her prior occupational tasks does not necessarily disqualify her from receiving total disability benefits.

Insurance Company Tactics

Definition of “Occupation”

Insurers may try to redefine a claimant’s occupation to deny coverage. A favorite insurer tactic is to assert that an insured had more than one occupation and that while disabled from one, he can still perform the material and substantial duties of another.

In one case, Berkshire Life claimed that a professional musician who referred occasional overflow work to colleagues was not a musician but a musician/booking agent. Therefore, reasoned Berkshire, its insured – although disabled from playing her instrument – was not disabled from her occupation because she could still work as a booking agent.

In another case, Paul Revere denied total disability benefits to a court reporter with permanent injuries to her hands and wrists. Although the insured could no longer take transcription in Court, the insurer reasoned that she was not totally disabled as a court reporter because she could still perform one of her prior duties, namely proofreading or “scoping.” Similarly, UnumProvident has argued that a chiropractor who could no longer perform the forceful manipulations her job required was not totally disabled because she could still do the bookkeeping for her practice.

Contesting The Treating Doctors:

Another common insurer tactic is to contest treating physicians’ opinions. Insurers will send an insured’s medical records to one of their in-house consultants or to an outside “independent” medical examiner. These doctors will often create reasons for disagreeing with the treating doctors. They will contest the medical findings, characterize the diagnosis as based on subjective considerations, or otherwise disagree with the conclusions of those treating the claimant. The claim is then denied or terminated and the file closed.

Functional Capacity Issues:

Another tactic is to send the insured to a functional capacity evaluation, a procedure where the claimant is observed performing tasks claimed to mimic the duties required in the insured’s own occupation. If the claimant can either perform the tasks for an hour or two, or is viewed by the examiner as intentionally under-performing them, the company then uses the results to cut off the claimant’s benefits.

These are just some of the tactics one can expect once one files a disability claim. Others include asserting that there was a “material omission or misrepresentation” made by the insured on the application; claiming that a word or phrase in the policy means something other than what it says; sending private investigators to interview former spouses; and videotaping the insured.

There are currently thousands of cases pending against Berkshire Life, Paul Revere, UnumProvident, and other disability insurers. These cases – typically filed by court reporters, medical doctors, and other professionals – usually charge that a company is engaging in fraudulent, unfair, deceptive, and bad faith practices in order to boost its bottom line. Confidential industry documents and deposition testimony strongly support these allegations. Nevertheless, the bad conduct continues. Immunity from prosecution under certain federal laws (such as ERISA), lax enforcement by insurance regulators, indemnity agreements between corporate CEOs and their companies, and the absence of significant financial disincentives operate to encourage rather than to deter such conduct.

Important Facts About Filing An Erisa Claim For Disability

Wed, 27 May 2020 14:17:30 GMT

Explained By Our San Francisco ERISA Attorneys

Do you receive disability insurance benefits from your employer? If so, then the Employee Retirement Income Security Act of 1974 (ERISA) likely governs your policy. Unfortunately, ERISA law often benefits the insurance company. Thus, it is important to file your ERISA long term disability (LTD) claim correctly from the start. Below, our San Francisco ERISA attorneys included some important facts about filing an ERISA claim for disability.

Your Insurance Policy’s Definition of Disability Matters for ERISA Claims

Some insurance policies define disability narrowly. For example, a person may qualify as disabled when they are unable to perform the duties of any job.

However, other insurance policies define disability broadly. For example, a person may qualify as disabled when they cannot substantially perform their own occupation.

Thus, it is important to review your policy’s summary plan description. You will find your insurer’s exact definition of disability. Then, you can determine whether filing an ERISA claim for disability is right for you.

The Disability Application Can Make or Break ERISA Claims

It is important to start off right when filing an ERISA claim for disability. Many disability claim denials are due to application errors. Thus, you should make sure to complete your disability application correctly.

For example, the disability date you choose matters. It is important that you were working full-time on this particular date. Additionally, you must explain to the insurance company why you chose this particular date. Doing so could prevent you from receiving an ERISA disability claim denial.

Your Doctor’s Statement of Disability Is Important

When filing an ERISA claim for disability, your doctor will need to submit a statement of disability. Many times, the questions on the doctor’s statement are repetitive. In fact, the insurer can often find this information in your medical records.

Thus, your doctor may skip over certain sections to save time. Additionally, he or she may write “see attached” to refer to your clinical records.

However, your insurer could deny your claim due to blank sections or vague answers. As such, it is important that your doctor fill out this form with as much detail as possible.

Further, you should have an attorney review your doctor’s statement of disability before submitting it. If anything is missing, then the attorney can send it back to the doctor for revision. Doing so could prevent you from receiving an unnecessary disability claim denial.

Filing an ERISA Claim for Disability? Contact a San Francisco ERISA Attorney

Are you considering filing an ERISA claim for disability? The San Francisco ERISA attorneys at DL Law Group can help you get the outcome you deserve for your ERISA claim. For a free consultation, give us a call at 415-234-1499 . You can also send us a message through our online contact form . We are committed to helping Bay Area and San Jose residents recover the disability benefits they deserve.

What Do I Do If My Insurance Company Commits Bad Faith?

Mon, 30 Dec 2019 14:17:05 GMT

As experienced San Francisco insurance lawyers, this is one of the most common questions we hear. What can you do if your insurance company commits bad faith? Below, we discuss five important steps to take if you believe your insurance company has committed bad faith against you.

5 Steps to Take After Your Insurance Company Commits Bad Faith

Bad faith can occur in any type of insurance claim. Some of the most common types of bad faith insurance claims we handle include:

Life insurance
Health insurance
Disability insurance
Auto insurance
Property insurance

If you believe your insurance company has committed bad faith against you, we recommend that you speak with an experienced lawyer about your situation. One of our San Francisco insurance lawyers can answer your questions and help you with the following steps:

Step #1: Read and Understand Your Insurance Policy

The first thing you should do is carefully read over your insurance policy. You want to make sure that the coverage your claim is requesting is actually covered. Your insurance policy will cover exemptions and exceptions within the fine print.

Our bad faith insurance lawyers understand that insurance policies are long and complex documents. We can help you review your contract to discover whether you made a legitimate claim. We can also help you determine your rights under the law.

Step #2: Document All Communication With Your Insurance Company

The most important thing you can do if you feel as though your insurance company is acting in bad faith is to fully document all communications with them. Keep a detailed record of all correspondences. This will enable you to provide proof of your good faith efforts to resolve any issues.

Keep detailed records of who you talked to, when you talked to them and what was said. You should also gather and organize any documents about the policy or potential claim. These documents may include:

Pictures of the accident
Repair estimates
Purchase receipts
Other related documentation

Step #3: Appeal the Insurance Claim Denial

Insurance adjusters must follow strict procedural rules. Claim denials can be reviewed by supervisors, though it often takes effort to move up the managerial chain of command before getting a fair review of your claim.

Our insurance bad faith lawyers can guide you through the appeals process. We can make sure you file in time and help you gather what you need to file a strong appeal.

Step #4: Send Your Insurance Company a Demand Letter

Let your insurance company know that you do not accept their decision to deny your claim. You can also use a demand letter to inform your insurance company that you will file an insurance bad faith claim against them if they do not resolve the situation.

Step #5: File an Insurance Bad Faith Complaint Against Your Insurance Company

If your insurance company fails to resolve your claim after you send a demand letter, you can file an official complaint against them. We recommend that you have an experienced bad faith attorney on your side during this step. Even if you are confident that your case is solid, we can make sure that your claim is filed properly. You want to build the strongest claim possible to have the best chance of obtaining a favorable decision.

Contact Our Bad Faith Lawyers Today to Discuss Your Potential Claim

At DL Law Group, we help California policyholders obtain the insurance benefits they need and deserve. Feel free to reach out to us for a free consultation to discuss your potential claim. You can call us at 415-234-1499 . You can also contact our firm online and we will be in touch with you soon.

The Insurance Company’s Duty of Good Faith to You

Wed, 27 Nov 2019 14:16:08 GMT

When Your Claim Is Denied, What Can You Do?

A slip and fall or an unexpected car crash could turn your life upside down. When you suffer an injury, you believe that your insurance company will uphold their end of the bargain and pay your claims. Sadly, this is not always the case. Many of these accidents become just another denied claim by the insurance company. When this occurs, what can you do? How can you get the insurance company to pay your claim?

Fortunately, an experienced California bad faith insurance attorney can help you. They know how to level the playing field with dishonest insurance companies. After all, the insurance company has to honor its coverage of your injury, up to your policy limits.

Insurance Companies Have a Duty to Inform

Millions of Americans pay thousands of dollars in insurance premiums every year. They pay these premiums to protect themselves should an accident occur. That money is valuable. Consumers have a right to know what they are purchasing.

Insurance companies have the responsibility of disclosing every detail of your insurance policy. They must disclose this information before they sell you the policy.

Never sign a contract for insurance without first reading and re-reading the entire policy. Any insurance company which makes you sign first before they inform you isn’t acting in good faith.

The Difference Between Good Faith and Bad Faith

Good faith is a legal term. It is an obligation of the insurance company to you, and it is non-negotiable. Good faith means that the insurance company honors what the insurance policy says. They agree to pay for or covers services according to the terms of the policy.

Bad faith is the opposite of that. When an insurance company denies a covered claim under the insurance policy, they are acting in bad faith .

Ways Your Insurance Company Acts In Bad Faith

There are many ways an insurance company can act in bad faith. Some of those include:

Denying legitimate claims
Delaying payments
“Losing” paperwork
Refusing to return phone calls
Ignoring vital medical information
Requesting unnecessary medical tests or lab work
Offering low-ball settlements
Failing to defend against a third party claim
Refusing to conduct an investigation
Canceling a policy after a claim is made

It Is Not All or Nothing

Many clients believe that if they file an insurance claim, that is the end of their personal responsibility for costs and services. Unfortunately, even with the most generous insurance plans, this is not true. There are often responsibilities that you must incur, such as co-pays and deductibles.

Sometimes, it takes perseverance and determination to go toe to toe with an insurance company’s agents. Insurance adjusters know how to fight claims, and they work hard to deny them. If you believe your insurance company is negotiating in anything other than good faith, you should speak to an experienced attorney. Your bad faith insurance attorney can guide you through the terms of your policy and protect your rights every step of the way.

Contact Our Insurance Bad Faith Attorneys Today

Even when you have the best intentions and attempt to work with your insurance company to resolve a dispute, it may not be enough. You may need to hire a bad faith insurance attorney to help you get the coverage or reimbursement that you deserve.

If your insurance company continues to attempt to stonewall you, an attorney at the DL Law Group will protect your rights every step of the way. Call us at toll-free at ( 888) 910-3980 . You can also fill out our confidential contact form for a free initial consultation and review of your case. Call today!

5 Ways Insurance Companies Can Wrong Their Clients

Fri, 25 Oct 2019 14:15:30 GMT

Consumers are often dismayed to find out just how far their insurance company will go to deny a claim, raise their rates, or deny coverage entirely despite insurance law in San Francisco and the rest of California. Many people believe that purchasing insurance is a simple business transaction—you pay your monthly premiums, the company pays out all legitimate claims in a reasonable timeframe. However, insurance companies use a number of tactics to mislead their clients and operate in bad faith.

Rewarding Representatives for Denying Claims

Many large insurance companies have been caught intentionally denying legitimate claims in order to boost their profits. Some companies reward employees with bonuses when they successfully deny claims or simply replace ethical employees with those who are willing to deny subscribers’ claims. This creates an environment where the first line of communication for a subscriber—their insurance agent or customer service representative—is motivated to act against the customer’s best interest.

Requiring Excessive and Redundant Paperwork

There is a substantial amount of paperwork involved with any insurance claim, but a growing number of insurance companies use excessive paperwork as a tool to frustrate claimants and prevent them from finishing their claim. If you find yourself giving the same information over and over, filling nearly identical forms multiple times, or providing apparently irrelevant information, you may be a victim of this tactic.

Delaying Payouts

Delaying is a tactic used by many insurers. They know that delaying payment is often enough to make an individual give up. The more a client gets vague and unsatisfying answers when they reach out, the less likely they are to continue reaching out. Insurance companies know this and they use it to their advantage. Insurers may also claim that they suspect insurance fraud, intimidating customers into silence while they “investigate.” While these tactics are not permitted under the California Code of Regulations , many companies still utilize them.

Intentionally Using Confusing Contract Language

Insurance contracts are exceedingly difficult for a layperson to read. In many situations, this is intentional. Inserting vague, redundant, or ambivalent language in a contract makes subscribers uncertain about what type of coverage they have and may discourage them from filing a claim. It is often helpful to have an insurance law San Francisco attorney go over your insurance contracts and identify problematic areas.

Offering an Absurdly Low Amount

If you have been in an accident and the other party is responsible, you may discover that the insurance company offers a very low amount for your claim. This forces you to choose one of two options: take the low amount even though it is not enough to cover their client’s damages or go through legal channels to get what you deserve. Many claimants are afraid of the time and cost involved in filing a lawsuit. Insurance providers know that there is a high probability that claimants will accept their unfair settlement offers.

Why You Need an Insurance Law San Francisco Attorney

Insurance companies are very good at denying claims and otherwise mistreating their clients. You need an attorney who knows insurance providers’ tricks and knows how to beat them at their own game. Discuss your legal needs with the team at DL Law Group—call our San Francisco office at ( 415- 234-1499 ) to schedule an appointment.

The Use Of Depositions From Other Cases To Prove Pattern And Practice

Tue, 15 Oct 2019 20:42:32 GMT

On February 3, 2002, a unanimous federal jury awarded our client, Joan Hangarter, $7.7 million in damages against Paul Revere Insurance and UnumProvident Corporation for bad faith denial of disability benefits. The jury’s award included$5 million dollars for punitive damages. The subject discussed in this article figured prominently during the course of the litigation.

We regularly hear about mergers and acquisitions. Unfortunately, for plaintiffs in insurance bad faith cases, that causes a lot of trouble. For example, the plaintiffs often find the company they are suing is really owned and operated by another company. Furthermore, that company may or may not be a party to their lawsuit. Companies try hard to hide the ball on this issue, especially if they are aware that the predecessor corporation has made damaging admissions. Defendants try even harder to separate themselves from the acts of the predecessor corporation when there is any possibility of proving that the “bad acts” committed by the succeeding company originated with the predecessor. As an example, in 1997 Provident Life and Accident Insurance Company acquired Paul Revere. Consequently, the new company is Provident Companies. Provident Companies merged with Unum in 1999 and the resulting company was named UnumProvident. At last count, the following companies are all owned or controlled by mega-disability insurance giant, UnumProvident: American Integrity Insurance Company (owned by Unum before it was acquired by Provident); Colonial Companies, Inc. (owned by Unum before it was acquired by Provident;)Colonial Life & Accident Insurance Company; Commercial Life Insurance Company; Equitable (block of disability insurance acquired by Paul Revere;) General American Life Insurance Company; John Hancock; Lincoln National; Mutual of New York; New York Life Insurance Company; National Life of Vermont; NW Life (Reliastar)(best guesses to date is that this is probably Northwestern; Paul Revere; Protective Life; Provident Life and Accident; Provident Mutual; The New England and; Union Life Insurance Company of America. By the time you read this, there may be more companies added to or subtracted from this constellation.

Whether or not you are able to enter evidence that will help you to connect the dots from Provident Life and Accident’s plan for unfairly terminating through Paul Revere to Unum or any of the companies listed above, is directly related to your ability to convince the judge of the nexus between the facts of your case and the evidence you hope to introduce even if the evidence or testimony was obtained in a different case and bears the name of a different corporate entity.

Introducing Past Deposition Testimony Obtained In A Different Case

The rules governing the admission of past deposition testimony as an exception to the hearsay rule in both State and Federal court are similar. Federal Rule of Evidence 804(b)(1) states that former testimony given under oath at another hearing, whether in the same case, a different case, or in a deposition, may be admissible in the current proceeding provided:

The witness is unavailable and the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. Thus, under this Rule, the testimony may be offered against the party by whom it was previously offered; or against a successor in interest to a party to the prior action who had a similar motive and opportunity to develop the testimony in the previous action. Moreover, testimony so offered is admitted as an exception to the hearsay rule. Similarly, in State Court under Evidence Code 1291(a)(2) and 1292(a)(3), and California Code of Civil Procedure Section 2022, depositions from a different lawsuit can be introduced into evidence if the deponent is presently “unavailable” to testify and the party against whom deposition testimony is offered either offered it in evidence in the former action or had the right and opportunity to cross-examine the deponent with the same motive and interest as he or she has in the present action or the issue of the testimony is such that some party to the former action, who had the same interest or motive as the party against the testimony is now being offered had the same motive, right and opportunity to cross-examine the witness .In the Hangarter trial, mentioned above, the Plaintiff sought to introduce the prior deposition testimony of Dr. William Feist, a past medical director and Vice President of Provident Life and Accident, the predecessor corporation to first Provident Companies and then UnumProvident. Plaintiff wanted this testimony on record as evidence of the ruthless and unfair claims handling initiatives that the plaintiff used. This could then show the pattern and practice brought into being by then Vice President of Claims for Provident Life and Accident, Mr. Ralph Mohney. Plaintiff argued that the above deposition testimony demonstrated the importance of Mr. Mohney to her case. Mr. Mohney was in charge of the claims department prior to the acquisition of Paul Revere by Provident and the creation of Provident Companies. Plaintiff had introduced evidence that Mr. Mohney instituted changes to the claims department during that period of time, he was part of the transition team during the merger of Provident and Paul Revere insurance companies, he remained in charge of the claims department and he had substantial settlement authority over claims such as Dr. Hangarter’s.As with the case in which Dr. Feist’s previous deposition had been taken, the issue of claims philosophy in general, and of the changes made by Mr. Mohney regarding said claims philosophy in particular, were central to the testimony. Dr. Feist’s observations were directly relevant to these issues, and UnumProvident, a named defendant in the Hangarter lawsuit had the opportunity to cross-examine him about these exact issues. Plaintiff argued that the fact that the lawyers representing UnumProvident at trial had chosen not to attend the deposition was irrelevant. After a review of the deposition testimony, including a vigorous cross-examination by another UnumProvident attorney, the Court agreed with the Plaintiff.Defendants strenuously argued, as they did throughout the trial, that Provident Life and Accident Insurance Company, UnumProvident and Paul Revere were three separate entities and since Dr. Feist had worked for Provident Life and Accident, his testimony was irrelevant. Defendants also argued that because his deposition had been noticed and taken in another individual disability case in which UnumProvident, but not Paul Revere, was a defendant, they didn’t have an opportunity to cross examine the witness. Additionally, they also argued, erroneously, that Dr. Feist had not been on plaintiff’s witness list.

If you are seeking to introduce past deposition testimony from another matter into your trial be sure to look for the way that you can prove that the interests of the party who cross-examined the deponent were the same if not identical to that party in your trial. Do your homework. Know, before you go to trial, how your defendant may be related to other defendants who have been sued under similar facts. And be sure to list the deponent as a witness.

By admitting Dr. Feist’s testimony, plaintiff was able to introduce evidence of UnumProvident’s pattern and practice of claims handling sufficient for the jury to conclude that the defendants had acted with malice fraud or oppression in denying Dr. Hangarter’s disability benefits.

Dr. Feist testified that “Before Chandler and Mohney came to their positions at Provident, claims were handled in a fair and above-board way”. There was “never anything about shredding documents and not putting in information,” he said.

He testified that to instruct or direct field claims adjusters to not put conclusions in writing but instead to communicate them verbally was at in violation of the Company’s duties to their policyholders and was “unethical.”

Mr. Mohney, said Feist, even issued an edit “prohibiting doctors from writing on a file that an insured “was disabled”. “I recall specifically a case,” he said, “probably in November of ’95 in which there was a very unfortunate man in his mid 40’s, who had had several myocardial infarctions and had severe incapacitating angina – this man literally could not walk across the length of the room without getting severe chest pain.

“I wrote on the file that this man is permanently and totally disabled, just as clear as I could write it. I was called on the carpet by Mr. Mohney saying ‘Dr. Feist you are not to write on any file. This file or any file, that this person is disabled. That is for the claims department to make the decision.

“That sounds like a simple procedural thing but it is really a profound philosophical change….

“Well with that change Mr. Mohney and his associates could make the call. Even if the person is disabled for some reason, (if) they didn’t want to permit disability. They could make the final call.

“I think that is a small example, but that is a good example of the philosophy change that came in when. Mr. Mohney (and Mr. Chandler) came on board.”

Dr. Feist also testified in his deposition that Roundtable Meetings were held for the purpose of finding “any way or modality” to try to terminate claims: “Questioning the integrity of the treating physician, using surveillance inappropriately, getting an IME to prove their case, saying that the individual was fraudulently trying to get money out of Provident. All of those modalities were used.

Dr. Feist himself personally attended Roundtable Meetings that had profiled over 250 claims, targeting high-value claims and brainstorming for ‘any excuse or pretext’ to cut them off.

“The whole tenor of the meeting was we have got to find some way to terminate(this) claim whatever it takes or however we can do it.”

As you can see from this small excerpt, the testimony was invaluable to plaintiff’s case both for bad faith and her claim for punitive damages.

Introducing Documents Obtained Through Discovery in Other Cases

We have been in the position of suing the same defendant or defendants many times. Through discovery in past cases we have obtained thousands of pages of internal documents, some very damning to the defendants. In such circumstances, defendants argue that the documents are not relevant to the instant case because a “different” insurer denied the claim. In addition, although we have been able to obtain stipulations that the documents will be deemed “produced” in whatever current litigation we are engaged in, at trial the insurers argue that the documents lack authenticity.

With regard to the relevance objection, as with prior deposition testimony, it will be necessary to provide a nexus between the documents of the predecessor or successor corporation and the current defendant or defendants. In our case we used deposition testimony of the Head of Claims, Ralph Money, stating that he was in charge of the philosophy for all of the individual claims departments for all of the Provident companies. Since many of the documents we sought to admit had been authored by Mr. Money and concerned his claims handling philosophy and his intention to save the company “30 to 60 million dollars a year” through his claims initiatives, the Judge agreed that the documents were relevant to Paul Revere’s current claims handling practices.

Once the relevancy hurdle has been past, it is also necessary to authenticate the documents in order for them to be admitted into evidence. It may seem incredible but even though the documents were produced by one of the named defendants, defendants still argued that the documents were not authentic. Under the Federal Rules of Evidence, “there is no single way to authenticate evidence and, in particular, direct testimony of custodian or percipient witness is not a sine qua non to the authentication of a writing. Fed.Rules Evid.Rule 901(a), 28 U.S.C.A.” U.S. v. Holmquist 36 F.3d 154 C.A.1 (Mass.), 1994.

Moreover, the burden of authentication of evidence does not require proponent to rule out all possibilities inconsistent with authenticity or to prove beyond any doubt that the evidence is what it purports to be; rather, standard for authentication, and

hence for admissibility, is one of reasonable likelihood. Fed.Rules Evid.Rule

901(a), 28 U.S.C.A. Alexander Dawson, Inc. v. N.L.R.B. 586 F.2d 1300 C.A.9, 1978.

The issue for the trial judge under Rule 901 is whether there is prima facie

evidence, circumstantial or direct, that the document is what it is purported to be. If so, the document is admissible in evidence. See, e.g., United States v. Wilson, 532 F.2d 641, 644-45 (8th Cir.), Cert. denied, (1976); United States v. Scully, 546 F.2d 255, 269 (9th Cir. 1976), Cert. Denied. It is then up to the jury to make its own determination of the authenticity of the admitted evidence and the weight which it feels the evidence should be given.

At trial in the Hangarter case, counsel for Paul Revere and UnumProvident constantly objected to the authenticity of the very documents produced by Provident and UnumProvident in other cases because they had not been produced in the Hangarter case. The Judge found, however, that the Plaintiff had authenticated the documents in a number of different ways which he found to be sufficient to admit the documents into evidence. Among the ways cited by the Judge was the fact that the same documents had been admitted into evidence by another Federal Judge; that the documents were produced in related cases, that the documents had the heading of Provident and a Custodian of Records had testified, albeit in another case, that the documents had been produced by Provident.

The Use Of Bad Faith And Other Experts In The Trial Of A Bad Faith Disability Case

Tue, 15 Oct 2019 14:14:19 GMT

1. What Is Expert Opinion In An Insurance Bad Faith Case?

“Bad Faith” as that term is used by the Courts in insurance coverage cases, simply means an unreasonable denial of benefits including an unreasonable denial of the duty to defend. Just as with a personal injury case, or any other kind of tort case, expert opinion is frequently required when litigating an insurance bad faith case. Technical experts such as doctors, geologists, contractors, soil engineers, electricians, plumbers, etc., can all be used. The range is as great as the underlying coverage issue may require. The purpose of this paper is to discuss the value or lack thereof of using “bad faith” experts in a first party bad faith case in order to prove the unreasonableness of the denial of coverage.

Numerous issues can be addressed by “bad faith” experts. For example, expert opinion may be allowed to show whether or not the insurer conducted a fair and thorough investigation; whether the insurer gave as much consideration to the insured’s interests as it did to its own; whether the insurer misinterpreted the policy provisions; whether the insurer offered all of the coverages available under the policy; whether the insurer paid any portions of the claim in which its liability was reasonably clear; whether the insurer attempted to impose a more stringent definition of disability than that required by California law-the list is as long as the theories under which an insurer can be found liable for breach of the covenant of good faith and fair dealing.

2. Do You Need An Expert To Prove Bad Faith?

In a bad faith case, use of an expert can be discretionary. Numerous cases have held that it is not necessary to use an expert to prove bad faith. For example, in DeChant v. Monarch Life Insurance Company, (1996) 200 Wis. 2d 559, the court opined that the insured was not required to introduce expert testimony to prove a cause of action in tort for bad faith refusal to pay full disability benefits under insurance policy, where allegations of bad faith did not implicate complex industry practices or procedures and jurors did not need special knowledge or skill or experience in order to properly understand and analyze insurer’s conduct. Similarly, in Weiss v. United fire and Casualty Company, (1995) 197 Wis.2d 365, the court held that when an insurer’s alleged breach of its duty of good faith and fair dealing toward its insured involved facts and circumstances within the common knowledge and ordinary experience of the average juror, the insured need not produce expert testimony to establish bad faith claim.

Depending on the facts of the case, it may be enough to simply cross examine the insurance company witnesses as to the standards that a reasonable insurer must apply when adjusting a claim. It can be very helpful for a jury to hear the correct standards that should have been applied directly from the mouths of the defendants. Remember, bad faith experts are expensive. If you are not trying an institutional bad faith case, you simply may not need one.

If the attorney does decide to use an expert, the next question that should be addressed is how and when. In many instances, attorneys decide that the plaintiff is the best witness to tell the story and will then use an expert to comment on claims handling only after all the evidence has been presented. However, when you are attempting to implicate the institution and prove pattern and practice, it can be very effective to put your bad faith expert on as the first witness. The expert can then draw the large picture or the road map for the jury. The individual witnesses’ testimony, including the insured and the company’s own employees, is then presented against the backdrop of institutional wrong that the expert has provided. Since an expert can rely on inadmissible evidence in forming an opinion, this can also be a way to get information before a jury that would otherwise be excluded.

3. Requirements For Admissibility

(a) CALIFORNIA: Under Evidence Code §801 there are three basic requirements for the admissibility of expert opinion testimony:

The subject matter of the expert’s testimony must be sufficiently beyond the common experience of the average person such that the opinion could assist the jury and/or Judge.
The witness must have sufficient knowledge, skill, experience, training or education to qualify as an expert on the subject; and
The opinion must be based on reliable matters.

Expert opinion is not permitted when the subject matter is “one of common experience” upon which jurors do not need assistance in arriving at a conclusion. Godfred v. Steinpress (1982) 128 Cal.App.3d 154. Obviously, this is an area where parties often file competing motions in limine to keep the other side’s expert out.

Expert opinion is not allowed where the issue is a matter of law. In bad faith cases, it is imperative to remember that your expert cannot testify as to “bad faith.” Bad faith is a legal issue and such testimony will be excluded. Similarly, experts cannot testify regarding their own interpretations of the law regardless of their qualifications to do so. That role is reserved solely for the Court and nothing can bet a Judge angrier than an expert who gives a legal opinion. The expert, however, may and should testify that a particular insurer’s practices falls below the standard of care or the custom and practice of the industry.

The California Supreme Court has allowed expert testimony on “the conduct and motives of an insurance company in denying coverage”:

“We can conceive of many ways in which a lay jury, in assessing the conduct and motives of an insurance company in denying coverage under this policy, could benefit from the opinion of one who by profession and experience, was peculiarly equipped to evaluate such matters in the context of similar disputes.”

Neal v. Farmers Ins. Exch., (1978) 21 Cal.3d 910,924.

In addition, there are bad faith cases in which expert testimony is required. For instance, in a bad faith case where the plaintiff is asking for accelerated damages pursuant to Egan v. Mutual of Omaha (1979) 24 Cal.3d 809; and Pistorius v. Prudential Ins. Co. of Am. 123 Cal.App.3d 541, it is imperative to have a financial expert who can testify as to the present value of future policy benefits. Here the predictable fight is over the discount rate to be used to determine the value as well as the Cost of Living increase if one is contained in the policy. In addition, if the trier of fact decides to award punitive damages, it is plaintiff’s burden to present proof of the net worth of the defendant. Here again it is necessary to present expert testimony.

In state court, unless the parties agree otherwise, there is no requirement that the expert create a written version of the opinion he/she intends to offer at trial.

(b) FEDERAL: Under the Federal Rules of Evidence, expert opinion testimony is admissible if it is based on “scientific, technical or other specialized knowledge” that will “assist the trier of fact to understand the evidence or to determine a fact in issue.” [FRE 702; Kumho Tire Co., Ltd. V. Carmichael (1999) 526 US 137.] Even in diversity cases, the admissibility of expert testimony is controlled by Federal Law.

In Federal Court the trial judge is the “gatekeeper” of expert testimony. This means that it is up to the trial judge to ensure that an expert’s testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 US 579.

In bad faith cases, defendants almost always attempt to use Daubert to disqualify the plaintiff’s expert. However, the Ninth Circuit has held that a bad faith expert’s testimony and qualifications do not have to be evaluated pursuant to Daubert if the expert is both qualified and testifying from his own experience. Thomas v. Newton Intern. Enterprises, 42 F.3d 1266(9 th Cir. 1994). Daubert only applied to an expert testifying based on hard science and specifically on a particular methodology’s application to the evidence. U.S. Fidelity & Guar. Co. v. Sulco, Inc. 171 F.R.D. 305 (D. Kan. 1997).

In addition, although prohibited from commenting on the law or drawing legal conclusions, a bad faith expert may reasonably rely on the application of statutes in determining the reasonableness of a company’s actions. Kraeger v. Nationwide Mut. Ins. Company, 1997 WL 109582 (E.D. Pa. 1997). Moreover, it is considered reasonable for experts in bad faith insurance practices to look to the relevant statutory and regulatory requirements in examining the reasonableness of an insurer’s actions. Id. at *2. See also Hangarter v. Paul Revere, UnumProvident, et al. (2002) 236 F. Supp.2d 1069.

4. The Expert’s Report

Under Rule 26 of the Federal Rules of Civil Procedure, any expert who is retained or specially employed to give an opinion at trial must prepare a report covering the matters on which the expert intends to testify. This rule does not apply to treating physicians. While treating physicians must be identified as experts under this rule, as long as their testimony is limited to their own diagnosis and treatment, they are not required to provide a Rule 26 report. Nevertheless, in the absence of a report, expect opposing counsel to file to keep the treating physician from testifying.

Each Rule 26 Report must contain the following:

All opinions to be expressed;
The bases for each opinion;
The data or other information considered in forming the opinion;
The qualifications of the witness;
All publications authored by the experts within the past ten years;
All compensation to be paid to the expert;
A listing of other cases in which the witness has testified as an expert (at trial or deposition) in the past 4 years.

Remember, if there is any chance that the expert will consider additional material between the time of the writing of the report and testimony at trial, it is imperative for the expert to reserve the right to add to the report. Without doing so, the Court could limit the opinion to only the matters discussed in the report. Given the fact that the expert disclosure and report takes place long before trial, a failure to do this could certainly limit the usefulness of your expert’s testimony.

5. The Pros And Cons Of Deposing The Other Side’s Expert

Experts are expensive and expert depositions, particularly when they involve doctors or other specialists are very expensive. Some doctor’s charge as much as $1,000 an hour with a three hour minimum. For a plaintiff, this can represent a significant financial burden. The question then becomes is it really necessary. If the case is in Federal court the expert has been required to provide a complete report. Remembering that the expert has been hired to give an opinion that will favor the opposition, it often is not particularly useful to depose the expert on his/her written opinion. In fact, it is often harmful since the questions that you ask will be used to further prepare the expert for trial and expose the thrust of your cross examination. Often, however, regardless of the cost, you will want to conduct a short deposition just so that you can evaluate how effective a witness the expert might be at trial. In that case, keep it simple. Ask the basics-get the expert’s qualifications and opinions. With regard to qualifications, be sure to ask details about the expert’s prior work as an expert including the number of times he/she has testified for plaintiffs and defendants, the nature of the cases, did the case go to trial, the outcome, any failures to qualify and the percent of the experts income derived from expert testimony.

With regard to the expert’s opinions, do not end the deposition without asking if there are any other opinions he/she intends to give at trial. If the expert or his/her attorney tries to evade the question, use the expert witness declaration or the report to pin this down. Also be sure to identify and get the details about all tests and analysis done; all communications with counsel, all instructions given regarding the expert’s task, any additional materials he/she could have reviewed; any facts that are inconsistent with the expert’s opinions. Try to isolate when the expert actually formed the opinion that he/she now holds. Remember, however, always balance whether probing the expert’s opinions will reveal weaknesses in the testimony that could help your client or simply cause the expert to do more work before the trial to strengthen his/her testimony. And lastly, if you take the expert’s deposition, be sure to identify all of the items in his/her file.

For each witness you are considering deposing, ask yourself what you hope to get from the deposition. You may find that a less expensive means of discovery will serve your client just as well.

6. Preparing Your Expert For Deposition

In a bad faith disability case, the bad faith expert is only one of the experts who will testify at trial. While you can control the number of depositions that you take, you cannot control the number taken by opposing counsel. It is a sure bet that numerous treating physicians will also be deposed by the insurance company even if their treatment is not implicated in the disability. I had one case in which so many physicians were deposed I wondered if they were going to stop when they found the doctor who had delivered our plaintiff. These physicians are often not used to being deposed. It is important to take the time to prepare your witness. If possible make an appointment to see the witness in person. Make sure the witness knows that you are paying for his/her time. Inform the witness of the substance of the litigation and of the questions you anticipate the defense will ask. Inform the witness of the theme of your case and the way in which his/her testimony fits into the case. Make sure the knows that in all likelihood the opposing counsel will try to discredit his/her opinion and help the witness not to take the attacks personally or get defensive. Go over the important rules of good witness behavior such as answering only the question that is asked and not to attempt to clarify opposing counsel’s confusion. Discuss all of the documents in the doctor’s file and how they relate to your client’s disability. Don’t forget to explain to the witness that you are not his/her attorney but that you will be making objections. Explain what the objections mean and encourage the witness to give you a chance to object before he/she answers the question. Always remind the witness that no matter how nice the opposing attorney appears, he/she is there to provide ammunition to deny his/her patient their disability benefits.

7. The Use Of A Bad Faith Expert After Campbell

On April 7, 2003, The United States Supreme Court decided State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S.Ct. 1513 . The Court’s decision, which is often contradictory and confusing, at the very least seems to hold that a punitive damage award cannot be based on conduct which takes place out of the State’s jurisdiction. Moreover, dissimilar acts, while “unsavory” cannot serve as a basis for a punitive damage award.

At the same time that the Supreme Court eliminates the possibility of a punitive damage award based on out-of state conduct, it seems to be allowing a jury to consider evidence of the existence of similar conduct as well as the frequency with which the conduct has occurred. Moreover, the decision appears to recognize that repeated misconduct is more reprehensible than an individual instance of wrongdoing. Obviously, the effects of this decision are as yet unknown. One thing seems to be certain, however, the days of hoping for a large punitive damage award where the actual damages are small are over for now. Because the Supreme Court seems to have established a multiplier of compensatory damages to punitive damages, attorneys will now have to concentrate on enlarging upon the amount of such damages. This may make experts such as physicians, economists, etc. more vital than they may have been before.

Nevertheless, in the right case, a bad faith expert can still prove invaluable and may be the only person who can provide the nexus between the out-of-state bad acts and the acts committed in your case. A good “bad faith” expert may make it easier for your jury and the judge to understand the reprehensibility of the insurer’s bad faith acts in your case and to maximize your punitive damage award under the Court’s new ratio.

How to best use a bad faith expert after Campbell or even whether or not to use one at all, is a discussion that has just begun. In developing a litigation plan in which you hope to obtain punitive damages, this discussion is going to have to take a prominent place at the table.

Do You Need An Expert To Prove Bad Faith?

Tue, 15 Oct 2019 14:13:03 GMT

In a bad faith case, use of an “insurance” expert can be discretionary. Numerous cases have held that it is not necessary to use an expert to prove bad faith. For example, in DeChant v. Monarch Life Insurance Company, (1996) 200 Wis. 2d 559, the court opined that the insured was not required to introduce expert testimony to prove a cause of action in tort for bad faith refusal to pay full disability benefits under the insurance policy, where allegations of bad faith did not implicate complex industry practices or procedures and jurors did not need special knowledge, skill or experience to properly understand and analyze the insurer’s conduct. Similarly, in Weiss v. United fire and Casualty Company, (1995) 197 Wis.2d 365, the court held that when an insurer’s alleged breach of its duty of good faith and fair dealing toward its insured involves facts and circumstances within the common knowledge of ordinary experience of average juror, the insured is not required to produce expert testimony in order to prevail on a bad faith claim. Remember, however, these cases were decided pursuant to the insurer’s attempt to claim that the jury’s determination that the insurer had acted in bad faith could not be supported because the plaintiff had not introduced expert testimony.

Depending on the facts of the case, it may be enough to simply cross examine the insurance company witnesses as to the standards that a reasonable insurer must apply when adjusting a claim. This was exactly what was done in the case of McGregor v. Paul Revere, Case No. C-97-2938, 2004 U.S. App. Lexis 730. Although plaintiff did not use a bad faith expert, her attorneys cross examined defendants’ witnesses on the standards of the industry and the definitions of disability In an unpublished decision handed down by the Ninth Circuit on January 15, 2004, the court affirmed McGregor’s $1.2 million federal jury award for bad faith denial of her disability benefits. The Court also affirmed an emotional distress award of $616,000 based on the same bad faith conduct.

If, after consideration of such things as the costs and the complexities of the case, the attorney does decide to use a bad faith expert, the next question that should be addressed is “how” and “when”. In many instances, attorneys decide that the plaintiff is the best witness to tell the story and will then use an expert to comment on claims handling only after all the evidence has been presented. However, when you are attempting to prove pattern and practice, it can often be very effective to put your bad faith expert on as the first witness. The expert can then draw the large picture or the road map for the jury. The individual witness testimony, including the insured and the company’s own employees, is then presented against the backdrop of institutional wrong that the expert has painted. Since an expert can rely on inadmissible evidence in forming an opinion, this can also be an effective way to get information before a jury that would otherwise be excluded as inadmissible hearsay.

E. Requirements for Admissibility of Expert Testimony

California :

Under Evidence Code §801 there are three basic requirements for the admissibility of expert opinion testimony:

The subject matter of the expert’s testimony must be sufficiently beyond the common experience of the average person such that the opinion could assist the jury and/or Judge.
The witness must have sufficient knowledge, skill, experience, training or education to qualify as an expert on the subject and
The opinion must be based on reliable matters.

Expert opinion is not allowed where the issue is a matter of law. In bad faith cases, it is imperative to remember that your expert cannot testify about whether or not the insurance company acted in “bad faith” or whether a punitive damage award is proper. These are legal issues and such testimony will be excluded. However, the expert may testify that a particular insurer’s practices fall below the standard of care or the custom and practice of the industry.

The California Supreme Court has allowed expert testimony on “the conduct and motives of an insurance company in denying coverage”.

We can conceive of many ways in which a lay jury, in assessing the conduct and motives of an insurance company in denying coverage under this policy, could benefit from the opinion of one who by profession and experience, was peculiarly equipped to evaluate such matters in the context of similar disputes.

Neal v. Farmers Ins. Exch., (1978) 21 Cal.3d 910,924.

Unless the parties agree otherwise, there is no requirement that the expert create a written version of the opinion he/she intends to offer at trial.

Federal:

Under the Federal Rules of Evidence, the admissibility of expert opinion testimony generally turns on preliminary questions of law determinations by the trial judge of whether:

opinion is based on scientific technical, or other specialized knowledge;
opinion would assist the trier of fact in understanding evidence or a fact in issue;
the expert has appropriate qualifications, that is, some special knowledge, skill, experience, training, or education on that subject matter;
testimony is relevant and reliable;
expert’s methodology or technique fits the conclusions; and its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issue, or undue consumption of time. (Fed. Rules Evid. Rules 104(a), 403,702,28 U.S.C.A. Even in diversity cases, the admissibility of expert testimony is controlled by Federal Law.

Under the Federal Rules of Evidence, the trial judge is the “gatekeeper” of expert testimony. This means that it is up to the trial judge to ensure that an expert’s testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 US 579. In addressing the admissibility of “scientific expert evidence, the Supreme Court, in Daubert, held that FRE 702 imposes a “gatekeeping” obligation on the trial judge to “ensure that any and all scientific testimony . . . is not only relevant but reliable.” 509 U.S. at 589.

While maintaining that the trial court has substantial discretion in discharging its gatekeeping obligation, the Supreme Court suggested that in exercising its discretion, the trial court might consider: 1) whether a theory or technique can be tested; 2) whether it has been subjected to peer review and publication; 3) the known or potential error rate of the theory or technique; and 4) whether the theory or technique enjoys general acceptance within the relevant scientific community. Id. at 592-594.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court further clarified its intent that the trial court’s gatekeeping function not be limited to “scientific” expert testimony, but applies to all expert testimony. However, Kumho Tire carefully emphasizes that trial judges are not required to mechanically apply the Daubert factors-or something like them-to both scientific and non-scientific testimony and are to be given broad discretion when discharging their gatekeeping functions. This latitude applies not only to the trial court’s decision of whether or not to admit an expert’s testimony but also to how the trial court tests an expert’s reliability.

A number of Ninth Circuit cases have held that Daubert does not apply to “non-scientific” testimony at all. See United Stated v. Plunk, 153 F.3d 1011, 1017 (9 th cir. 1998); McKendall v. Crown Control Corp., 122 F.3d 803,806 (9 th Cir. 1997); United Stated v. Webb, 115 F.3d 711, 716 (9 th Cir. 1997). Because these cases predate the Supreme Court’s holding in Kumho, they are not good law insofar as they draw a distinction between “scientific” and non-scientific” testimony. “However these cases are still good law to the extent that they permit the admission of expert testimony on the basis of the expert’s ‘knowledge, skill, experience, training, or education,’ which is consistent with Kumho Tire.” United States v. Hankey, 203 F.3d 1160, 1169 (9 th Cir. 2000).

In Hankey, the Ninth Circuit upheld the admission of expert testimony by a gang member whose expertise was based on his personal experience of gangs. The court held that “[t]he Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.” Id. at 1168.

In Mukhtar v. Cal. State University, Hayward, 299 F.1053, 1064 (9 th Cir. 2002), amended 319 F.3d 1073 (9 th cir. 2003), the Ninth Circuit reiterated that “[a] trial court not only has broad latitude in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability. [citations omitted] Indeed, a separate, pretrial hearing on reliability is not required.”

Plaintiffs can expect that in every bad faith case in which they plan to use an expert, defendants will work mightily to disqualify that expert on the basis of Daubert. This was one of the issues on appeal in Greenberg v. Paul Revere, UnumProvident, et al. D.C. No. CV-99-00154-SRB. There defendants contended that the district court had committed reversible error when it admitted the testimony of Greenberg’s insurance industry expert. In an unpublished decision issued on January 12, 2004, the court upheld a punitive damage award of $2.4 million and held that “the district court did not abuse its discretion in admitting the testimony of Greenberg’s industry expert, Donald Kelley. Contrary to Paul Revere’s contention, the district court was not required to assess Kelley’s testimony against the factors articulated in Daubert v. Merrell Dow Pharm., Inc., 113 S. Ct. 2786 (1993)-peer review, publication, error rates, etc.-where it was the ‘kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.'”

Keep in mind that although prohibited from commenting on the law or drawing legal conclusions, a bad faith expert may reasonably rely on the application of statutes in determining the reasonableness of a company’s actions. Kraeger v.

Nationwide Mut. Ins. Company, 1997 WL 109582 (E.D. Pa. 1997). Moreover, it is considered reasonable for experts in bad faith insurance practices to look to the relevant statutory and regulatory requirements in examining the reasonableness of an insurer’s actions. Id. at *2. See also Hangarter v. Paul Revere, UnumProvident, et al. (2002) 236 F. Supp.2d 1069.

The issue of the reliability of the experts’ opinion and the Court’s gate keeping role as well as other aspects of the Hangarter case is now on appeal. The question of the admissibility of plaintiff’s bad faith expert took front and center at the oral argument held on February 10, 2004. At the time of the writing of this paper the court has not reached a decision. When the decision is handed down, plaintiff’s attorneys expect that it will go a long way in clarifying what hurdles a plaintiff’s bad faith expert must pass for the admission of his or her expert testimony.

In McGregor, supra, it was plaintiff’s treating expert hand surgeon, not a bad faith expert, whose testimony was challenged through invocation of Daubert and its progeny. Defendants tried on at least three separate occasions to exclude plaintiff’s physician claiming, among other things, that his methods were unreliable and unusual. In upholding the jury’s verdict as well as the trial court’s rulings on the post trial motions, the Appellate Court held that the trial court had not abdicated her gatekeeping role in admitting the testimony of the expert. In addition, the Appellate Court stated: “We also conclude that the trial court did not abuse its discretion by finding that cross-examination was the proper vehicle for addressing Paul Revere’s attacks on [the experts] credibility. See Daubert,509 U.S. at 596 (“gatekeeping” role is no substitute for [v]igorous cross-examination.”).”

Conclusion

In an insurance bad faith case, an unreasonable denial can be proven by the individual claim’s file itself. Establishing a corporate pattern and practice of conduct, however, is essential to obtaining substantial punitive damages. Expert testimony can often provide compelling evidence of the nexus between the conduct exhibited in your case and a corporate culture that encouraged the kind of conduct that resulted in your client’s denial of coverage. Because the expert can rely on documents that may not actually be admitted, the expert’s opinion can provide the passkey that unlocks the puzzle of the insurance company’s intentional bad acts and makes a punitive damage award possible.

Serbonian Bog – re the enactment of ERISA in 1974 by Congress

Tue, 15 Oct 2019 14:12:32 GMT

In 1974 Congress enacted ERISA to “promote the interest of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90. Spurred on by the Studebaker plant shutdown in 1963, which caused approximately 4,400 workers to lose their pensions, ERISA was specifically enacted to address, and aid the apparent insecurity of workers’ vested pension funds. As designed, ERISA was supposed to protect plan participants from negligent or malfeasant plan managers.

Two types of benefit plans were seen to be in need of protection: 1) pension and 2) welfare. Substantially different policy concerns inspired the reforms in each area.

Inherent in pension plans, intended to provide retirement income through contributions from both the employer and the employee, was the substantial risk for mismanagement and underfunding. Accordingly, Title 1 of ERISA imposed comprehensive reporting, disclosure, vesting, minimum funding and fiduciary duty requirements. (This paper will not discuss pension plans except when necessary for purposes of comparison.)

Welfare plans, on the other hand, operate on a “pay as you go” basis and generally do not entail long-term financial commitments. The vesting and minimum funding requirements of pension plans were not extended to welfare benefit plans. Accordingly, Welfare benefit plans that are governed by ERISA are subject to ERISA’s procedural rules, i.e. reporting, disclosure, fiduciary and remedial rules, but are exempt from the vesting and funding requirements ERISA mandates for pension plans. In fact, “ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of benefits.”

Even though it would initially appear that welfare plans contain less restrictions than pension plans, both are subject to the broad preemption mandated by §514(a) which “shall supersede any and all State laws insofar as they may now or hereafter related to any employee benefit plan.” Although welfare benefit plans are subject to an exception for state laws regulating insurance, not much has gotten beyond the giant reach of ERISA’s preemptive grasp.

Congress’ intent behind §514(a) preemption was to ensure that plan sponsors would be subject to uniform law. Ingersoll-Rand, (1990) 498 U.S. 133. Nevertheless, in a line of Supreme Court cases, reaching to the present day, ERISA generally, and §514(a) in particular has become an impenetrable shield. In fact, ERISA has created a “regulatory vacuum” in which virtually all state laws are preempted and almost no federal substitutes have been provided. While allegedly providing an exception for state laws that govern insurance, few, if any such laws, have passed ERISA’s draconian preemption provisions.

Damages:

Section 502 contains two remedies for plan participants who have been personally injured by a welfare benefit plan. §502(a) (1) (B) allows the participant to bring a civil action to recover benefits, enforce or clarify his/her rights. Section 502(a) (3) allows a participant to seek equitable remedies, such as an injunction to redress violations of an ERISA plan or enforce any provisions of ERISA or the plan.

This leaves plan participants with almost no remedies. §502(a) (1) (B) only allows a participant to obtain the contractual benefits owed him even if the benefits have been intentionally withheld in bad faith. And few, if any, plan participants have the resources to seek equitable remedies. This is particularly true in the context of a denial of healthcare benefits. By the time the patient obtains an equitable remedy, he or she could be dead.

Today, the effect of ERISA’s preemptive reach and its limited remedies has been to insulate HMO’s from liability for the most egregious acts against plan participants. The fact that under ERISA, an egregiously and wrongfully injured plan participant cannot hope to obtain a jury trial, extracontractual, compensatory (including contingency fees) or punitive damages create an enormous incentive for HMO’s to withhold care. Even if they were adjudged wrong, under ERISA, all they would be on the hook for is the cost of the care itself, and in some instances, some minimal attorney’s fees.

The Effect of ERISA on Managed Care

Before turning to a review of the cases, it is important to understand the emergence and importance of HMO’s to the health care of most Americans. When ERISA was enacted, HMO’s did not even exist. Back in the 1960’s, most health care was delivered as “fee for service.” The medical care was delivered before the insurance battle was fought. If the insurer later refused to pay for the medical care and the participant’s plan was covered by ERISA, the participant could bring a suit under ERISA §502(a) to the recover the benefits due under the plan. Because in a fee for service context, the physician is motivated to provide more, not less, care as long as payment is forthcoming, the patient usually received the prescribed care.

Beginning in the 1960’s, a new model for healthcare was developed, primarily by insurers who thought they were paying out too much in benefits. The concept, known as managed care, includes HMOs. An HMO makes money by withholding care, unlike the previous fee for service care, because it receives a flat fee for each enrolled patient. In other words, whether or not the participant even uses its services, the HMO will receive a set fee for each enrollee. The more of that fee that is expended on medical care, the less the HMO gets to keep as profit.

Today approximately 75% of Americans who are insured through their workplaces receive their health care through some kind of “managed care” plan including HMO’s. Difelice v. Aetna U.S.Healthcare, (2003) 346 F.3d 442, 464. Care is either approved or denied before any procedure actually takes place by the “utilization review board.” “Because these denials now take place before the treatment itself, the effect is a systematic deterioration in the quality of treatment participants receive, all oxymoronically occasioned by a statute ‘designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Id. at 464-464, quoting Shaw, supra, at 465.

Despite what at least one jurist has referred to as a “Serbonian bog,” in reference to ERISA, numerous lower courts have struggled to maintain a sense of equity by identifying exceptions to §514 preemption, such as that for medical malpractice preemption, and to draw distinctions, under the remedial scope of §502 between eligibility decisions, which are preempted and medical decisions, which are not. Numerous courts have sadly acknowledged the inequities brought about by ERISA preemption and its limited remedies. Bast v. Prudential Ins. Co., 150 F.3d 1003, 1005; [“the Basts are left without a remedy.”]; Cannon v. Group Health Serv. Of Okla., Inc., 77 F.3d 1270-1271 (10 th cir.1996) [[“We] are moved by the tragic circumstances of this case…[but] conclude the law gives us no choice”]; Corcoran v. United Healthcare, Inc., 965 F.2d 1321,1338 (5 th Cir. 1992) [“The result ERISA compels us to reach means the Corcorans have no remedy. . .”]; Andrews-Clarke v. Travelers Ins. Co., 984 F. Supp.49, 52-52 (D.Mass.1997) [“The tragic events set forth in Diane Andrews-Clarke’s complaint cry out for relief. . . . Nevertheless, this Court had . . . to slam the courthouse doors in her face and leave her without any remedy.”]; Florence Nightingale Nursing Serv. Inc. v. Blue Cross & Blue Shield of Alabama, 832 F. Supp. 1456m1457 (N.D. Ala. 1993) aff’d, 41 F.3d 1476 (11 th Cir. 1995) [“A hyperbolic wag is reputed to have said that E.R.I.S.A. stands for ‘Everything Ridiculous Imagined Since Adam.’ . . . .[This court is willing to believe that ERISA has lurking somewhere within it a redeeming feature. However, this is not the case in which to find it.].

In his strongly worded concurring opinion in DiFelice v. Aetna U.S. Healthcare, supra,

346 F.3d 442, Circuit Judge Becker wrote separately to:

“add my voice to the rising judicial chorus urging that Congress and the Supreme Court revisit what is an unjust and increasingly tangled ERISA regime. . . .Indeed, existing ERISA jurisprudence creates a monetary incentive for HMOs to mistreat those beneficiaries who are often in the throes of medical crises and entirely unable to assert what meager rights any possess. . . . . In many areas of law contingency fee structures are used to overcome a litigant’s initial impecunoiosity. But any possibility of using contingency fees in this context is undermined by ERISA preemption. . . .”

See Also, Cicio v. Does, 321 F.3d 83.107 (2d Cir.2003) (Calabresi, J., dissenting) [“[I}t is not too late for the Supreme Court to retrace its Trail of Error and start over from the beginning or for the Congress to wipe the slate clean.”].

Given this change in the way American’s receive their healthcare, the rise of managed care and HMO’s and the demise of “fee for service” plans, ERISA preemption creates enormous inequities, actually rewarding insurers for providing bad care. In an HMO system, a physician’s financial interests lies in providing less, not more, care. It is against this background that the effects of ERISA preemption have been devastating to injured insureds.

The Current Legal Landscape

A Serbonian bog is a mess from which there is no way of extricating oneself-legally it is a term that has usually been reserved for the often difficult task of parsing liability in “accidental” death policies.

As stated above, the body of case law dealing with ERISA preemption is incredibly tortured and convoluted, and many of the results are difficult to reconcile.

Pilot Life Ins. Co. v. Dedeaux (1987) 107 S.Ct. 1549 (1987) was one of the first major cases defining the scope of Section 1144(a) and ERISA’s saving clause which exempted from the scope of preemption those state laws whose purpose was to regulate insurance. Pilot Life took a harsh stance against the saving clause, defining the saving clause’s “regulates insurance” very narrowly and striking down a common law bad faith claim. Since Pilot Life, however, there have been several key decisions that have chipped away at Pilot Life‘s holding, potentially widening the scope of ERISA’s saving clause.

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995)

The first important case to limit the chokehold of ERISA preemption was New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,514 U.S.645,654-655 (1995). In Travelers the U.S. Supreme Court held that, in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose.

In Pegram v. Herdrich, 530 U.S. 211, (2000) the Supreme Court examined the question of whether, in the treatment context, decisions made by an HMO acting through its physician employees are fiduciary acts within the means of ERISA. The Court stated that “[b]ased on our understanding . . . we think Congress did not intend . . . any . . . HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions through its physicians.” The Court held “that mixed eligibility decisions by HMO physicians are not fiduciary decisions under ERISA.” Id. at 2155,2158. Of course, determining which decisions are “pure eligibility” decisions versus those that are pure “treatment decisions” casts us once again into the Serbonian bog. As the Court acknowledged, “These decisions are often practically inextricable. . . as they are in countless medical administrative decisions every day.” Id. at 2154.

Dishman v. Unum Life Ins. Co. of America (9 th Cir. 2001)

In Dishman v. Unum Life Ins. Co. of America, 269 F.3d 974, 984 (9 th Cir. 2001), the Ninth Circuit addressed whether a state law with only a tenuous connection to a covered plan may still be preempted by ERISA. Although Dishman is a disability, and not an HMO case, its posture is informative.

The Dishman plaintiff sued UNUM, the insurer that administered his employer’s long-term disability plan, after UNUM terminated his disability benefits. He brought suit under California common law for an invasion of privacy due to the “unreasonably intrusive” nature of its investigation into his claim. The investigative firms UNUM hired elicited personal information about the plaintiff by making false representations to his employer, neighbors, and acquaintances. Additionally, the firms failed to acknowledge that he did not work for compensation for a certain company. UNUM did not argue that the plaintiff failed to state a claim against it under California law, but rather that ERISA barred the plaintiff’s claim because it related to benefits obtained through his employer’s long-term disability plan. The Ninth Circuit rejected this argument and found the plaintiff’s claim was not preempted by ERISA.

The Ninth Circuit focused on Congress’ intent in passing the preemption clause stating that it was to allow for national uniformity in the administration of employee benefit plans. Quoting the United State Supreme Court’s decision in New York Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co, the Ninth Circuit held that “[p]re-emption does not occur… if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.” Dishman, 269 F.3d at 984. The Court determined that it would not further Congress’ intent to grant ERISA administrators “blanket immunity from garden variety torts which only peripherally impact daily plan administration” and held that the state invasion of privacy law under which the Dishman plaintiff brought suit was not preempted for this reason.

The Court focused on the fact that the plaintiff’s state law tort cause of action against UNUM would remain regardless of whether or not UNUM ultimately paid his claim for benefits. This, the Court held, was evidence that the state law under which the plaintiff brought his tort claim was sufficiently remote from his claim for benefits to be not ERISA preempted.

Pilot Life and Dishman, taken together, create a contradiction: if a state law is somewhat general and unrelated to the administration of benefits it will be preempted per Pilot Life, but if the state law is very general it will not be preempted per Dishman. In failing to addresses these Pilot Life issues, Dishman fails to address just how unrelated to the administration of employee benefits a state law must be in order to escape ERISA preemption. However, Dishman does make clear that causes of action based in state invasion of privacy laws bear too tenuous a relationship to the handling of employee benefits claims for ERISA preemption to occur.

Rush Prudential HMO, Inc., v. Moran (2002)

In Rush Prudential HMO, Inc., v. Moran, 536 U.S. 355, 373 (2002), the U.S. Supreme Court was asked to decide whether an Illinois statute requiring HMOs to provide an independent review of disputes between a primary care physician and an HMO, and to cover services that were deemed medically necessary by the independent reviewer, was preempted by ERISA or whether it “regulated insurance” and therefore fell within ERISA’s saving clause. The Court, by a narrow 5-4 margin, determined that the Illinois statute did in fact “regulate insurance” and therefore fell within ERISA’s saving clause. This decision is significant, not only because it explicitly states that ERISA’s saving clause can apply to state laws regulating HMOs, but also because it represents a marked departure from the expansiveness of the savings clause first espoused in Pilot Life.

In determining whether the Illinois statute in question was saved from preemption by the saving clause, the Court first relied on its decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985), and applied a “commonsense view” to whether the Illinois statute in question was “specifically directed toward the insurance industry. The Court concluded that the statute was so directed. The Court clearly stated that the fact that the statute regulated HMOs rather than traditional insurers did not alter this conclusion. As the Court stated, HMOs “have taken over much business formerly performed by traditional indemnity insurers, and . . . are almost universally regulated as insurers under state law. That HMOs are not traditional ‘indemnity’ insurers is no matter.” Rush Prudential, 536 U.S. at 372-73.

After applying its common sense test, the Court then applied the three-pronged test that has guided ERISA preemption analysis for decades prior to the Court’s 2003 Kentucky Association of Health Plans, Inc. v. Miller, 123 S.Ct. 1471, 1471 (2003), decision. This three-pronged test was borrowed from cases that interpreted whether a certain practice constituted the business of insurance under certain sections of the McCarran-Ferguson Act. The three factors to be considered were, “first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129 (1982).

The Court then relied on its recent holding in UNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999) and held that a practice need not satisfy all three of these factors in order to be saved from preemption. While the Court “left open” whether the review mandated by the Illinois law spread a policyholder’s risk, it determined that the second and third factor were “clearly satisfied” by the Illinois statute. Rush, 536 U.S. at 373. The independent review requirement regulated an “integral part of the policy relationship between the insurer and insured.” Id. Furthermore, the law was aimed at a practice “limited to entities within the insurance industry.” HMO contracts, the Court held, are contracts for insurance, and the law regulates application of HMO contracts and provides a system for reviewing claim denials. Satisfying these two prongs, the Court held, was sufficient to save the statute from ERISA preemption.

Cicio v. Does , (2003)

In Cicio v. Does, 321 F.3d 83 (2 nd Cir. 2003), the Second Circuit held that state law medical malpractices claims brought over medical decisions made during a managed care organization’s or health insurer’s prospective utilization review are not ERISA-preempted.

The crux of the Court’s decision hinged on its determination that prospective utilization reviews are “mixed eligibility and treatment” decisions as first defined in Pegram v. Herdrich, 530 U.S. 211, 229 (2000). The Court defined the prospective utilization reviews at issue in its case as advance third-party reviews of the necessity of medical care. Cicio, 321 F.3d, at 98. The Court then held that these reviews are “quasi-medical in nature,” because they require evaluating data obtained in traditional face-to-face medical encounters before determining whether treatment is necessary. Id. The Court also held that these decisions require both an exercise of medical judgment and contract interpretation and concluded, based on congressional intent and Pegram, supra, that state law malpractice actions based on such mixed decisions are not preempted by ERISA if the action goes to a flawed medical judgment. Id, at 102-03.

Cicio represents a departure from previous ERISA preemption case law in which courts made a distinction between “quality of care” decisions and “benefits administration” decisions in determining whether a state law was preempted. The Court explicitly stated that “the mere presence of an administrative component in a health care decision no longer has determinative significance for purposes of preemption analysis when the decision also has a medical component.” Id., at 103.

Kentucky Ass’n of Health Plans, Inc., et al., v. Miller – (2003)

While Rush and its relatively expansive view of the saving clause caused quite a stir when it was first decided, its importance in this area of law was quickly supplanted by the U.S. Supreme Court’s decision in Kentucky Association of Health Plans, Inc. v. Miller .

Miller involved a Kentucky statute dubbed the “Any Willing Provider” statute (“AWP”). The AWP statute provided that “[a] health insurer shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer,” and that any “health benefit plan that includes chiropractic benefits shall. . . [p]ermit any licensed chiropractor who agrees to abide by the terms. . . and standards of quality of the health benefit plan to serve as a participating primary chiropractic provider to any person covered by the plan.” Miller, 123 S.Ct. 1471, 1471 (2003). The Supreme Court deemed the AWP statute not ERISA-preempted. While the Supreme Court’s result in this case is yet another move by the Court towards more leniency in terms of the saving clause, and away from its earlier harsh ruling in Pilot Life, Miller is most significant because of the sea change the Court took in its decision regarding the standard for ERISA preemption analysis.

In Miller, the Supreme Court streamlined its ERISA preemption analysis considerably. It did not overrule any of its previous decisions, but it explicitly stated that it was making a “clean break” from the ERISA preemption analysis methods it, and other courts, used in prior decisions. The Miller Court held that the 3-pronged McCarran-Ferguson test it used in Rush and in other prior case had “misdirected attention, failed to provide clear guidance to lower federal courts, and . . . added little to the relevant analysis.” Id. These McCarran-Ferguson factors, the Court held, were developed in cases characterizing conduct by private actors; ERISA preemption, in contrast, dealt with state laws. The Miller Court therefore developed a new set of guidelines to test whether a state law regulates insurance that has guided all ERISA-preemption jurisprudence since Miller was decided. In so doing, the Miller Court pared down the three-factor McCarran-Ferguson test into two requirements: 1. The state law must be specifically directed toward entities engaged in insurance; and 2. The state law must substantially affect the risk pooling arrangement between the insurer and the insured.

The Miller Court held that the Kentucky AWP statute satisfied its new two-pronged test. The AWP statute was specifically directed towards entities engaged in insurance because it prevented insurers from discriminating against willing providers, and hence imposed conditions “on the right to engage in the business of insurance.” Id. Additionally, the statute substantially affected the risk pooling arrangement between the insured and insurer because it expanded the total number of providers from whom insureds can receive health services, and therefore altered “the scope of permissible bargains between insurers and insureds.”

Miller’s Impact

Miller has had considerable impact on the ERISA-preemption landscape. Courts deciding ERISA-preemption cases now must use the Miller two-pronged test to determine if a state law is saved from preemption instead of the three-pronged test they used for years. By reducing the number of hurdles a state law must clear in order to escape preemption, the Miller decision implies that the Court might now be more generous with its application of ERISA’s saving clause than it has been in the past. Miller was decided less than one year ago, however, so whether or not courts actually take this more generous approach remains to be seen.

Aetna Health Inc. v. Davila/ Cigna HealthCare of Texas Inc. (2004)

Currently before the United States Supreme Court and scheduled for oral argument on March 23, 2004, are the cases of Aetna Health Inc. v. Davila, No. 021845 and Cigna HealthCare of Texas Inc.v. Calad, No. 03-83. Both cases involve wrongful benefit denials by HMOs.

The underlying facts of both cases are horrific. Davila is a post-polio patient who suffers from diabetes and arthritis. He received Aetna HMO coverage through his employer. Davila’s primary care physician prescribed Vioxx for his arthritis pain because Vioxx has a lower rate of gastrointestinal toxicity, i.e., bleeding, ulceration, perforation of the stomach, etc., than do the other drugs on Aetna’s formulary. Before agreeing to fill the Vioxx prescription, Aetna insisted that Davila enter its “step program” and try two different medications first. Only if he suffered side effects from these medications, would Aetna agree to fill the original prescription for Vioxx. After three weeks on the first of these drugs, Davila was rushed to the hospital suffering from bleeding ulcers which caused a near heart attack and internal bleeding. He required seven units of blood, was in the critical care unit for five days and is now unable to take any pain medications that are absorbed through his stomach. Davila sued in state court under the Texas Healthcare Liability Act (THCLA). Aetna removed to federal court citing ERISA preemption.

Ruby Calad was a member of CIGNA HealthCare of Texas, Inc., a Texas HMO. Calad underwent a hysterectomy with rectal, bladder, and vaginal repair. CIGNA discharged Calad one day after her surgery even though the CIGNA doctor who performed the surgery recommended a longer stay. Calad suffered complications and had to return to the emergency room a few days later. She sued under the THCLA alleging that CIGNA had failed to use ordinary care in making its medical necessity decisions, CIGNA’s system made substandard care more likely and CIGNA acted negligently when it made its medical necessity decisions. CIGNA removed based on ERISA preemption. Calad also sued the HMO for breach of fiduciary duty.

The Fifth Circuit, relying on Pegram, supra, held that both plaintiffs’ state-court claims against their HMOs, brought under the state medical malpractice statute, were mixed eligibility and treatment decisions falling outside ERISA benefits recovery provisions, and thus not completely preempted by and not removable on the basis of that provision. The HMOs appealed to the Supreme Court.

With these cases the United States Supreme Court has another opportunity to “revisit what is an unjust and increasingly tangled ERISA regime. . . . The vital thing, however, is that either Congress or the Court act quickly, because the current situation is plainly untenable. Lower courts are routinely forced to dismiss entirely justified complaints by plan participants who have been grievously injured by HMOs and plan sponsors, all because of ERISA. . . .” DeFelice v. Aetna U.S. Healthcare (2003) 346 F.3d 442, 466.

Conclusion

Even this very short overview of the impact of ERISA preemption on medicine as it is practiced in the context of managed care, and HMOs in particular, makes it clear that change in this area of the law could be coming. Hopefully, with its decision in Davila, the Supreme Court will take definitive steps to extricate plan participants from ERISA’s Serbonian Bog. It is imperative for the Supreme Court to put an end to the impenetrable barrier to justice that ERISA has erected for plan participants who have been grievously injured by HMOs and disability insurers.

Litigating An Insurance Bad Faith Case Based On A Denial Of Disability Benefits

Tue, 15 Oct 2019 14:03:13 GMT

Litigating an insurance bad faith case based on a denial of disability benefits has become increasingly complex in an age where mergers and acquisitions may put distance between your defendant and your ability to prove a company-wide plan to deny benefits in order to increase profits-a clear necessity of you hope to obtain a punitive damage award.

Key to proving your case is a carefully constructed discovery plan. This includes knowing what documents to ask for, knowing who to depose and knowing the defenses you are likely to face. In addition, it will be important to be able to use past deposition and trial testimony obtained in other cases against the same or related entity.

Take, for example, UnumProvident Corporation and its group of companies. In the early 1990s there were three major competitors in the individual disability insurance business: Provident Life and Accident of Chattanooga, Tennessee; Paul Revere of Worcester, Massachusetts and Unum of Portland Maine. In 1993, following $423 million in losses that resulted from the unpredicted plummeting of interest rates, Harold Chandler, a banker, was selected to take over as President of Provident Life and Accident Insurance Company. Not long thereafter a Provident tax specialist who had never before handled a claim, Ralph Mohney, was tapped to head the entire individual disability claims department. Chandler and Mohney set in motion a series of “claims initiatives” aimed at increasing profitability by terminating claims. Memo after memo was generated documenting the tens and hundreds of millions of dollars that Provident was saving as a result of these “initiatives.” These efforts were so successful financially, that in 1997 Provident took over its former competitor Paul Revere and assumed control of its claims department. The resulting company was named the Provident Companies. Chandler remained as President and Mohney remained as the head of claims. Provident Companies then merged with Unum in 1999, and the resulting company was named UnumProvident. The same thing happened again. Now Chandler was the President and Mohney the head of claims for UnumProvident. Throughout all of this it was clear that Chandler, Mohney and their claims philosophy were carried over.

This may seem like a simple path to follow but UnumProvident is very adept at distancing itself from the companies it controls, and therefore, distancing themselves from the smoking gun documents that can be so convincing to a jury.

Connecting these dots is imperative especially when you consider that 792 cases were filed in Federal Courts naming Unum or UnumProvident in the 192 days preceding July 9, 2002. This number does not incude cases filed in State Courts or cases in which an entity other than Unum or UnumProvident was named. Convincing a judge and jury that a claims philosophy memorialized by a “smoking gun” document in 1995 was used in the denial of your client’s claim in the year 2000 can make the difference between obtaining damages for a simple breach of contract and obtaining a verdict for bad faith and punitive damages.

Ray Bourhis and Alice J. Wolfson have been litigating on behalf of policyholders for over thirty years. In the last year and a half Bourhis & Wolfson have obtained unanimous plaintiff’s verdicts in McGregor v. Paul Revere and Hangarter v. Paul Revere, UnumProvident Corp. et al.. In Hangarter, Bourhis & Wolfson secured the largest punitive damage award in California against these companies.