Most ERISA disability policies state that the insurer has “discretionary authority” to make all decisions regarding whether to award or deny disability benefits.  If the policy contains this “discretionary authority” provision then the disability claimant can usually only overcome a denial if we are able to prove that the denial was: 1) wrong; and 2) the decision was arbitrary and capricious.  This is an extremely difficult burden to meet.  “Wrong” is not enough.   It has to be wrong, and arbitrary and capricious.
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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 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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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

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

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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