Florida Insurance Law Blog : Florida Insurance Lawyer & Attorney : Mark Nation Law Firm : Orlando, Longwood, Gainesville

In US Airways, Inc. v. McCutchen, 2011 WL 5557411 (3rd Cir. Nov. 16, 2011), an ERISA plan sought reimbursement of 100% of what it had paid for medical bills for a car crash victim even though the victim had not been fully reimbursed because of limited liability coverage. The lawyers for the car crash victim claimed that the ERISA plan should reduce its claim pro rata for attorneys fees and costs. The ERISA plan administrators refused, and demanded reimbursement of 100% of what it had spent.

The ERISA plan eventually filed a lawsuit against the plan beneficiary seeking 100% reimbursement. The language of the plan states that the ERISA plan was entitled to reimbursement “for amounts paid for claims out of any monies recovered from a third party….”

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My client took out a short term disability policy in December of 2010. He then suffered a stroke in May of this year. His short term disability carrier denied the claim, asserting that the stroke was a preexisting condition. 

You won’t be surprised to hear that I filed a lawsuit against the STD carrier for breach of contract. I can’t wait to see how they prove that a stroke that occurred in May 2011, preexisted an insurance policy taken out in December 2010. 

As with most of my insurance cases, if I am successful, the insurance company will be required to pay my hourly fees and costs, and if I lose, I’ll work for free. 

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My client suffers from a couple of different debilitating medical conditions.  He purchased an AFLAC policy at work, which was supposed to pay him when he was off work as a result of illness or injury.  The maximum benefit was for 6 months, at which point AFLAC would not pay anymore for that particular medical problem until he had returned to work for a certain time.  My client was off work for 6 months, and then went back to work.  Shortly thereafter, before the "return to work period" had expired, he had to go back off work for another medical problem. 

AFLAC refused to pay, claiming that this was the same medical problem that they had previously paid for and that my client had not been back at work long enough to qualify for additional benefits for that medical problem.  The medical evidence shows that although the new medical condition was to the same area of the body, it was a different medical condition.  Accordingly, my client would be entitled to recover up to another 6 months of disability insurance benefits. 

On Monday, I filed a lawsuit against AFLAC for breach of contract.  As with most of my insurance cases, if I win this lawsuit, the insurance company will be required to pay all of my fees and costs, and if I lose, I will work for free. 

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My client was severely injured in a motorcycle accident.  In a bad faith lawsuit against the at-fault driver's insurance company we recovered a confidential amount well in excess of 150 times the policy limits.  My client's health insurer paid around $200,000 for medical care related to the crash.

After resolving the bad faith case, my client's health insurer asked my client to reimburse it the full $200,000 it spent on medical care.  I advised the recovery company for the health insurer that under Florida law, the health insurer was only entitled to a small fraction of what it was seeking.  They refused to budge and demanded payment of the full amount. 

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My client was injured in an automobile accident.  My client was an HMO member through his employer.  The HMO was issued by Blue Cross and Blue Shield of Florida.  After the accident, Blue Cross and Blue Shield provided some medical services to my client that were accident related, and also provided some services that were not related to the accident. 

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You are much more likely to become disabled during your work life than to die during your work life. Thus, disability insurance is very important to protect you and your family from financial ruin in the event of a disability. But, what happens when you insurance company denies your disability claim?

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Recently, we prevailed in federal court on a contract interpretation issue under an ERISA short term disability insurance policy. 

Due to an illness, our client could not perform some of the essential duties of her job. She could perform some of her duties, she just couldn’t perform them all. Our client filed a claim for STD benefits under her ERISA plan. The insurance company denied the claim, asserting that she could still perform some of the material duties of her job, and therefore she did not meet the definition of “disabled” under the insurance policy.

We filed suit in federal court. On summary judgment, the Court found agreed that an insured could be entitled to disability benefits if she could show that she was disabled from only one of the essential duties of her occupation. Plaintiff cited Lain v. UNUM Life Insurance Company of America, 279 F.3d 337 (5th Cir. 2002), abrogation recognized on other grounds, Holland v. International Paper Co. Retirement Plan, 576 F.3d 240 (5th Cir. 2009) in support of her position.

The AT&T Plan at issue defined disability as follows:

“Total Disability” or “Totally Disabled” for short-term disability means that because of Illness or Injury, you are unable to perform all of the essential functions of your job or another available job assigned by your Participating Company with the same full-time or part-time classification for which you are qualified.

The Court found the phrase “all of the essential functions” ambiguous. The Court rejected the Defendants’ argument that if plaintiff could do one of the essential duties of her job, then she was not disabled. Instead, the Court found that if, for example, there were 10 material duties of her occupation, if she was unable to do even one of those duties, then she would be disabled as defined by the Plan.

Litigation continues.  In cases like this we, represent the policy holder on a contingency fee basis.  There are no fees or costs unless we win, and if we do win we will attempt to force the insurance company or plan administrator to pay our fees and costs under 29 U.S.C. Section 1132(g). 

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My client's brother was riding his motorcycle when another driver turned left in front of him.  The motorcyclist struck the front right corner of the car.  The motorcyclist died at the scene. 

The driver of the car received a ticket for violation of right of way.  The motorcyclist was not speeding, and was not found to be engaging in any improper driving.  However, the motorcyclist's blood alcohol content was .09% - slightly over Florida's legal limit of .08. 

My client's brother was insured under an ERISA Accidental Death and Dismemberment insurance policy issued by Humana.  My client submitted the claim, but Humana denied the claim based on the following exclusion:

Accidental Death or Bodily Injury benefits do not cover loss resulting from:

º The voluntary taking of any sedative, drug, alcohol, poison or inhalation of any gas unless taken or inhaled as prescribed or administered by a Qualified Practitioner.

º Driving or operating a motorized vehicle while legally intoxicated or under the influence of illegal substance. Intoxication means that blood alcohol content or the results of other means of testing blood alcohol level meet or exceeds the legal presumption of intoxication under the law of the state where the accident took place;

Humana simply concluded without explanation that the claim was not covered because the motorcyclist had a BAC of .09.  However, the exclusion requires that Humana prove that the accident resulted from driving while intoxicated.  From the facts of the crash it was obvious that there was nothing the motorcyclist could have done to avoid this collision.  Out of an abundance of caution, I retained an accident reconstruction engineer to reconstruct the crash.  The engineer concluded that

The cause of the MVC was that [the driver of the car] improperly made a left turn in front of [the motorcyclist], leaving insufficient time and distance for a normal alert driver to avoid the crash.

Consequently, Humana cannot carry its burden of proving that the loss "resulted from" the motorcyclist impairment.  

Because this accidental death insurance policy is governed by ERISA I must file an administrative appeal with the insurance company.  The appeal in ERISA is extremely important as the administrative record developed during the appeal will likely be the only evidence a federal judge will review if this case is ever litigated.  Under ERISA, the insured is typically required to show that the insurance company's decision was arbitrary and capricious based on the evidence which it had before it at the time it makes its decision.  Thus, the appeal must be thorough and complete, as there will likely be no more evidence allowed even if a lawsuit is filed. 

This case is proceeding on a contingency fee basis.  If I am forced to litigate I will seek fees from Humana or the ERISA plan administrator under 29 U.S.C. Section 1132(g). 

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My client's husband had a seizure and fell in his home.  He struck his head on the floor which resulted in a traumatic brain injury.  Tragically, he later died of the TBI. 

At the time of his death, he was a plan participant in an ERISA benefits plan sponsored by his employer.  One of his benefits was an Accidental Death and Dismemberment insurance policy issued by Metropolitan Life.  His widow submitted the claim for Accidental Death and Dismemberment benefits. 

The ERISA policy contained an exclusion for losses that are "caused by or contributed to" by a medical condition.  Metlife denied the claim based on the medical condition exclusion. 

I have filed an administrative appeal under ERISA.  I believe that the exclusion only applies to deaths that are caused by a medical condition, not accidents that are caused by medical conditions.  Case law from as far back as the 1800's support our position on this appeal. 

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Life Insurance Company of North America (“LINA”) was recently ordered to continue paying disability benefits under an ERISA governed Plan. In that case, the our client was employed by UBS as a senior sales brokerage assistant earning over $100,000.00 a year. She left work as a result of a heart condition and fibromyalgia which caused severe pain, fatigue and shortness of breath. LINA approved her claim in 2005 and began paying benefits. Benefits were terminated in 2007 based on LINA’s finding that our client was not disabled from performing her own sedentary occupation.

In its denial, LINA demanded that its insured provide it with “objective” medical evidence of disability.

Under the applicable ERISA standard of Review, the Court found that it was unreasonable for LINA to require “objective” medical evidence. The Court found that LINA was required to engage in a meaningful dialogue with the claimant to advise precisely what evidence was necessary in order to support the claim. With respect to fibromyalgia, a condition characterized primarily by subjective complaints, it was noted that were no objective tests to measure plaintiff’s inability to function due to pain. In fact, the Court found that LINA’s request for objective medical evidence was a request for evidence that was not available.

The Court also criticized LINA’s attempt to terminate benefits when there had been no change in the our client’s condition. It noted that her cardiac condition had remained essentially static during the time benefits were paid and that LINA could not explain why benefits should be terminated in 2007 when there had been no change in her condition.
 

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Our client was insured under a self-funded long term disability plan which was administered by Aetna Life Insurance Company. Our client filed an LTD claim based on his anxiety, panic disorder and agoraphobia. Aetna initially approved the claim, but later terminated benefits and denied the claim.

We filed suit in Federal Court and the judge found that Aetna’s decision denying the LTD benefits was “arbitrary and capricious.” In its decision, the Court noted that our client had been approved for Social Security Disability benefits. Yet, Aetna did not consider the Administrative Law Judge’s findings when it terminated LTD benefits. This is in spite of the fact that the Plan requires its insureds to file for Social Security Disability, and also allows the Plan to take an offset for Social Security Disability benefits.

Further, the Court also found that Aetna had failed to advise the claimant that he should submit the Social Security records as evidence in support of his disability claim.

Finally, the Court found that Aetna acted arbitrarily because of its failure to have its own medical reviewers physically examine Mr. Roush as opposed to simply reviewing medical records. The Plan specifically allowed Aetna to require a physical examination.

As a result, the Court awarded benefits and remanded the matter to Aetna to continue paying long term disability benefits.

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ERISA – Statute of Limitations

One of the most perplexing issues that arise in ERISA cases is the applicable statute of limitations. The ERISA statute itself does not provide a specific statute of limitations for claims for benefits. Instead, Courts look to the Plan document, the insurance policy, and/or state law in making such a determination. Recently, the Ninth Circuit Court of Appeals dealt with this complex issue. In that case, Nancy Wise, an employee of GTE, was suffering with multiple sclerosis. Despite her affliction, she was able to successfully perform her job. In fact, she left GTE in 1997 and began working for a competitor, Qwest. Thereafter, in 1999, GTE attempted to persuade Ms. Wise to return to GTE. Ms. Wise hesitated leaving her current employer giving her medical condition and her eligibility for full benefits with Qwest. In order to procure her return, GTE promised to “bridge back” to her original employment date her benefits eligibility. In other words, GTE promised that her medical conditions would not be subject to pre-existing condition limitations. Therefore, Ms. Wise returned to GTE.

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My client is a veterinarian who became disabled due to cancer and the subsequent grueling treatments.  Her disability insurance carrier is New York Life. 

Although New York Life has not technically denied the claim they might as well have.  Instead of quickly processing the claim, their claims administrator has repeatedly requested the same information time and again.  Once they finally acknowledge that they have the information they then ask for information that that they should have requested at the beginning of the claim if it was important.  They have also repeatedly asked for information that simply does not exist.  When my client explains that the information does not exist, they ask for it again.  In the meantime, my client suffers not only with her ongoing medical conditions, but she is in desperate need of her disability benefits. 

As with most of my insurance cases, if I win this case, the insurance company must pay my fees and costs, and if I lose, I'll work for free.

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You buy short term disability and long term disability insurance in order to protect yourself and your family.  In many cases, the insurance company denies the disability claim from the beginning.  Other times, the disability insurer approves a claim only to terminate benefits later.  As a lawyer for the disabled, I help people with claims that are denied at the outset as well as claims where the insurance company initially approves the insurance benefits and later terminates the benefits.

What do you do if you have been approved for short term disability or long term disability benefits only to later have the insurance company terminate those benefits? 

Once an insurance company approves disability benefits it can only terminate those benefits if it can show that there has been a "substantial change in condition."  The burden of proof is on the insurer to demonstrate that change in condition.  Often, however, the insurance company will write letters to the insured advising that it is terminating benefits because the insured has failed to demonstrate that he or she continues to be disabled.  The insurance company wants the insured to feel like the burden of proof is on them to demonstrate that the are disabled.  While the insured must cooperate with the insurance company's investigation, the insured does not have to prove continued disability.  To the contrary, the insurance company must prove a substantial change in condition which warrants termination of benefits. 

Sometimes, the disability policy's definition of "disabled" changes after a certain amount of time.  For instances, some disability insurance policies state that they will pay disability benefits during the first two years if the insured is disabled from their "own occupation."  After two years, the insurance policy requires that the insured be disabled from "any occupation."  In many of those cases, the insurance company terminates benefits once the own occupation period expires.  In this instance, the burden of proof remains with the insured, but there are still many ways to prove that the termination of insurance benefits was improper. 

The bottom line, is if your short term disability carrier, or long term disability carrier denies or terminates your disability insurance you have options.  Frankly, every disability insurance case I've ever won has one thing in common - every one of them started with a denial. 

In all of the disability insurance cases I handle, the initial consultation is always free.  And, in most of the disability insurance cases I take, the insurance company has to pay my fees and costs if I win, and if I lose, I'll work for free. 

I also help with appeals if your insurance company has denied your disability claim. 

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The Nation Law Firm recently filed an administrative appeal for certain disability benefits under the terms of the Harris Corporation Disability Plan. Plaintiff was successful in this appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal under an ERISA plan against Principal Life Insurance Company. Plaintiff prevailed in the appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal on behalf of a claimant. Benefits were sought from the Life Insurance Company of North America. Plaintiff prevailed and benefits were reinstated.

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We recently filed a lawsuit seeking certain short term disability benefits under the terms of the Federal Express Short Term Disability Plan. Litigation continues.

 We also recently filed suit seeking short term disability benefits under the terms of the Blue Cross and Blue Shield of Florida Short Term Disability Plan. Plaintiff was an employee of Blue Cross and Blue Shield of Florida. Litigation continues.

 In another case, we filed suit seeking long term disability benefits under an ERISA governed plan. Suit was filed against Connecticut General Life Insurance Company.

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The Nation Law Firm recently filed suit against CUNA Mutual Insurance Society for certain credit disability insurance benefits. (Often borrowers will take out credit disability insurance to pay their loan payments in the event of disability). In this case, our client became disabled and applied for disability benefits. The insurer, CUNA, denied the claim, arguing that her condition was an excluded "pre-existing condition." Florida statutes have significantly narrowed those situations where an insurer can deny a claim based on an alleged preexisting condition. Litigation continues.
 

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The Nation Law Firm recently filed a complaint seeking disability benefits on behalf of a pastor who became disabled. Suit was filed against Unum Life Insurance Company of America. Although the matter was not governed by ERISA, the case was removed to federal court allegedly based on diversity. Plaintiff is seeking to remand the case arguing that the court does not have jurisdiction based on the amount in controversy at the time the complaint was filed.

In another case, we filed suit on behalf of a plaintiff seeking benefits under the National Rural Electric Cooperative Association Group Benefits Program. Plaintiff is seeking long term disability benefits pursuant to the terms of the plan. Litigation continues.

We also recently filed suit for disability benefits payable under the terms of an individual disability policy. Plaintiff became disabled and MetLife, the insurer, argues that benefits are not payable based on plaintiff’s medical condition. Plaintiff suffered from rheumatoid arthritis and other conditions.

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I filed suit today against Standard Insurance Company on behalf of a former firefighter whose LTD benefits were recently terminated.  After paying LTD benefits for two years, the insurer has advised my client that they are cutting off the benefits.  As with most of these cases, if I win, the insurance company must pay all or my fees and costs, and if I lose, I'll work for free. 

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In Holmstrom v. Metropolitan Life Insurance Company, 2009 WL 901127 (N.D. Ill. March 31, 2009), Holmstrom sued Metropolitan for terminating her long term disability payments.  Metropolitan counterclaimed seeking reimbursement from Holmstrom for an overpayment of LTD benefits which occurred when Holmstrom received a payment for back benefits from social security disability.  (The Metropolitan plan contained a provision that reduced the monthly LTD payments by the amount received from social security disability). 

The only way Metropolitan would be allowed to proceed on its counterclaim is if its claim was equitable in nature.  If Metropolitan's claim was not equitable in nature, then the court would not have jurisdiction.  In a lengthy analysis, and based on the Supreme Court's determination in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), the Illinois district court determined that Metropolitan's claim was equitable in nature and granted summary judgment for Metropolitan on its counterclaim.

Holmstrom also argued, unsuccessfully, that Metropolitan did not assist her in obtaining the social security disability benefits, and therefore, Metropolitan waived its right to claim the overpayment.  While recognizing the potential viability of such a claim, the court stated that Holmstrom could not rely on such an argument where the LTD plan did not require the administrator to assist the beneficiary in seeking social security disability benefits. 

When evaluating a request by an LTD carrier for reimbursement, a careful analysis of whether the claim is actually "equitable" is foundational.  This case, along with Sereboff are essential starting points in that analysis. 

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We recently filed suit against Hartford Life and Accident Insurance Company for denying our client's claim for Long Term Disability benefits. 

Our client was a salesman working for a chemical company.  He suffered from intractable pain, and applied for and received short term disability benefits.  He then received long term disability benefits for 24 months.  Then, suddenly, his disability benefits were terminated based on Hartford's finding that even though he was disabled from his own occupation, he was not disabled from all occupations. 

Contrary to Hartford's opinion, the medical evidence supports the fact that our client is unable to work at any occupation. 

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Our client's Long Term Disability claim was denied by Hartford.  At the time he became disabled, our client worked as a cruise ship engineer working for Disney Worldwide Services, Inc. He suffered from a severe stomach condition and was unable to work. Litigation continues.

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