Thursday, September 26, 2013

ChangeERISA.com -- a site by someone who's dealt with ERISA's injustices firsthand

Luciana Baker had disability coverage, issued by Hartford, through her employment with Bloomberg news.

Luciana Baker became disabled.

ERISA allowed Hartford to cheat her out of promised benefits with impunity.

So Ms. Baker has started a website, trying to motivate us to agitate for a change in ERISA.

Congratulations to Ms. Baker. This is the sort of advocacy we need to effect change, and her site deserves your attention and support. Well done.


Thursday, August 29, 2013

What’s the big deal about time limits? I mean, how long can it take to bend over?

 

As we’ve discussed the Supreme Court will soon consider whether ERISA “insurers” can get away with unilaterally imposing time limits on your ability to start a lawsuit against them when they deny your benefit claim. If you want an example of their breathtaking arrogance, get a load of one of their arguments.

Thanks to the "insurers'" efforts over the years, and the courts’ unfortunate acceptance of their pitches, ERISA claimants have the deck stacked against them when they go to court. As relevant here, their ability to conduct discovery and present their case to a court using the usual sorts of evidence and arguments has been vastly limited if not destroyed. In a word claimants’ rights in that connection have been gutted.

And now ERISA “insurers” are arguing to the Supreme Court that, those rights having been thusly gutted, claimants really don’t need much time at all to get their case into court once their claim has been denied. The American Council of Life Insurers, America’s Health Insurance Plans, and the U.S. Chamber of Commerce, for example, submitted a brief to the Court arguing:

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And the Defense Research Institute similarly argued to the Court:

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These guys certainly do not lack for chutzpah. Their argument here amounts to: since we've gutted the claimant's ability to conduct discovery or investigation, and reduced their day in court to a judicial rubber stamp, claimants don't need much time at all to don their blindfolds and line up against the wall.

Tuesday, August 27, 2013

The ERISA time machine: when your claim is denied the clock is ticking faster than you know

ERISA, in addition to drastically limiting the remedies you might secure in the unlikely event you are able to prevail on a benefits claim in court, imposes strict deadlines for you to act in response to a denied claim. If you fail to keep careful track of the calendar, your claim — regardless of how strong it may be on the merits — could very well perish simply because of the passage of time.

You’ll need to be careful in at least two respects: the time limit for submitting an internal appeal to the ERISA “insurer” who just denied your claim, and the time limit for filing you complaint in court after that. Blow either deadline and you’re out of luck.

 

1. You must submit the internal appeal within either 60 or 180 days of claim denial

Federal regulations require that ERISA “insurers” give you at least 60 days (in the case of non-health or disability claims, e.g., life or accidental death insurance) or 180 days (in the case of health or disability claims) after a denial to submit an internal appeal — a reconsideration by the “insurer” as to whether it should continue to pay benefits, and thus reduce its profits. Humanitarians that they are, ERISA "insurers" always do the bare minimum, and so the 60- or 180-day minimums are effectively the maximums as well. So, unless your benefit plan is exceedingly rare, you’ll have either 60 or 180 days to get that appeal in.

As we’ve seen, the “insurer” has its own deadlines to respond once your appeal is submitted, with one big difference: if you blow your deadline, you are out of luck, but if the “insurer” blows its deadline … well, everybody makes mistakes, right? Bottom line: the “insurer” can miss its deadline with no meaningful consequence, but if you miss your deadline, game over. So be careful with that deadline.

 

2. You must file your lawsuit within the statute of limitations – whenever that is

ERISA, model of clarity that it is, doesn’t impose a deadline for filing a lawsuit to try to recover the meager remedies it allows. So, no worries, right?

Wrong. Just because ERISA doesn’t have a deadline doesn’t mean we can’t come up with one anyway, so that claimants who wait too long to file their lawsuit can be unceremoniously ejected from court. So, at the behest of ERISA “insurers,” courts have decided to just borrow a time limit from state law, and apply that, never mind that ERISA doesn’t have a time limit of its own.

OK, so at least we can just check the law of our state to figure out what the deadline is, and then at least we’ll know.

Wrong again. ERISA “insurers” insert time limits into their “insurance” policies, and the courts generally allow this, so your deadline to file your lawsuit is … whatever the “insurer” says it is.

A pending Supreme Court case, Heimeshoff v. Hartford, will decide what the outer limits are on an “insurer’s” ability to just impose its own deadline on your ability to pursue remedies in the federal courts your tax dollars pay for. So we’ll know a bit more about that before too long.

One thing you can count on is that if you miss the deadline, whatever it is, for filing your lawsuit, you are out of luck from the get-go. It’s a deal-breaker. A death-knell. The fat lady singing.

So, it’s important in an ERISA case to pay very close attention to time limits. Miss one by even a day and your claim is over before it starts. Indeed, it never really starts at all.

Friday, August 16, 2013

Location, location, location: Your legal rights under ERISA depend on where your case is

ERISA is a mess of a complex and reticulated statute, and so it gets interpreted differently by different courts.

One example I have some familiarity with is what we clever lawyers call “post hoc rationales,” which is what normal people would call “First time I’ve heard of that” or more appropriately “WTF?” It arises when an ERISA “insurer” denies your claim, and then after you sue them, realizes its denial was a big fat lie. So now, finding itself in court, it comes up with another reason, which it never mentioned before you served your lawsuit, why your claim should be denied anyway.

One problem with that: it’s illegal. ERISA itself requires that when an “insurer” denies a claim, it ““shall” provide notice describing “the specific reasons” the claim was denied. Under Labor Department regulations as well, it “shall” provide not only “the specific reason or reasons” for a denial, but “the specific plan provisions on which the determination is based.” The Supreme Court says ERISA “insurers” “must” describe in writing “the specific reasons” for a claim denial. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003).

Seems pretty straightforward, no?

Well, it all depends on where you live. The United States Courts of Appeals are divided geographically into circuits, and each circuit applies the law in its own way, pending the Supreme Court coming along and deciding for everyone how it’s to be done. Here, despite the fact the law requires “insurers” to provide “the reasons” and “the specific policy provisions” involved when they deny claims, in many parts of the country that so-called law is simply not enforced.

I had a case where the Eleventh Circuit ruled against my client based on a rationale the “insurer” never mentioned until we were already in court (the reason it cited at the time it denied the claim was, shall we say, not supported by the evidence). So the “insurer’s” utter failure to provide “specific reasons” and “specific policy provisions” when it denied my client’s claim, illegal though it was, made no difference whatsoever: the “insurer” still won.

Had this case been in any number of other circuits, the result would have been precisely opposite. The “insurer” would have been stuck with the reason it provided in the first place, and based on that it would have lost.

So I have asked the Supreme Court to step in and fix this, and establish one rule for the whole country about these after-the-fact rationales. The overwhelming odds are that it will decline to review the case, since that’s what it does in something like 98% of cases presented to it. But you never know.

Here’s the petition for certiorari, discussing how the different circuits apply the rule, and asking for Supreme Court review. Enjoy! /sarcasm

In the meantime, as noted had the Eleventh Circuit applied the rule other circuits apply, the result would have been the opposite. Like George Costanza, the Eleventh Circuit should …

 
…stick to the opposite.

Wednesday, August 14, 2013

More on remands, and another selection from the Rising Judicial Chorus’ greatest hits

Yesterday we touched on the troubling practice of federal courts remanding ERISA claims to “insurers” for a second try after they had already ruled against them. It’s yet another example of how, when ERISA “insurers” lose in court, they don’t actually lose in court. If their decision is found by a judge to have been incorrect, which you’d think would result in them losing, they win anyway unless the judge goers further to determine their decision was not only wrong but patently absurd. And, in the case of remands, even if the judge decides that they don’t actually lose; they get another bite at the apple to try to come up with a claim denial that’s easier to defend in court next time around.

Lest you think that last comment is some sort of hyperbole, let’s take a look at what Judge William M. Acker of the Northern District of Alabama, probably the lead singer in the Rising Judicial Chorus, had to say about remands in his recent decision in May v. AT&T Integrated Disability (case no. 11-AR-1923-S, 2013 WL 3879895) (July 26, 2013):

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“Sophistic,” by that way, is sufficiently applicable to ERISA “insurers” that it ought to be part of their corporate name, something like “Sophistic Mutual ‘Insurance’ Company”: it means “plausible but fallacious,” which is pretty damn close to the high standard required for an “insurer’s” decision to pass inspection under a so-called “abuse of discretion” analysis.

Judge Acker had quite a few other choice remarks about the Sophistic Mutuals of the world and the way the law renders them bulletproof. Here’s a taste:

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Or this, discussing how the Eleventh Circuit essentially discounts the very significant conflict of interest under which ERISA “insurers” operate:

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And finally, a few choice words about the “abuse of discretion” rule as applied to ERISA “insurers”:

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Bruch, you may recall, was the case where the Supreme Court first established this grant-of-discretion / abuse-of-discretion rule, a rule repeatedly abused by “insurers” in the manner described by Judge Acker. And he is quite correct about the due process implications — if only a court would ever take a serious look at them.










Tuesday, August 13, 2013

Risible remands: ERISA “insurers” get a second bite at the apple

So I blog once a year whether I need to or not.

A recurring aspect of ERISA’s malignance is the judicial practice of “remanding” a claim to an ERISA “insurer.”

What is a remand? It’s when a judge, after concluding the plaintiff is right and the “insurer” is wrong, sends a claim back to the “insurer” it just got done ruling against for another try — instead of ruling in favor of the claimant, whom he just … ruled in favor of.

I’d sure like that sort of leeway from judges. After (once again) hearing something like this:





It’d be great for a judge to say “so go back and try it again.”

Doesn’t happen. Unless you’re an ERISA “insurer.”

Why on earth would a court, having rejected a party’s legal position, not just issue a judgment based on that ruling, and instead give the losing party a second bite at the apple?

Here’s an explanation (of sorts) from the Sixth Circuit’s recent decision in Fura v. Federal Express Corp. Long Term Disability Plan, (Case no. 12-2062, August 6, 2013) after it discussed at length that Aetna, the ERISA “insurer,” had issued a decision that was so absurd as to be arbitrary and capricious:

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Unreasoned explanation? Arbitrary and capricious decision? Utter lack of rationality and good faith in the decision-making process?

No problem! Everyone deserves a second chance!

Except ERISA claimants.

More soon…










Wednesday, September 12, 2012

Ninth Circuit: ERISA insurer “relied on ERISA’s deferential standard of review to avoid detection and liability”

The Ninth Circuit today issued its opinion in Stephan v. UNUM, reversing a summary judgment in UNUM’s favor and sending the case back to the district court for further proceedings.  Along the way the court described the sort of conduct UNUM has been engaging in, and the manner in which ERISA enables this unlawful behavior:

Numerous courts, including ours, have commented on
Unum’s history “ ‘of erroneous and arbitrary benefits denials,
bad faith contract misinterpretations, and other unscrupulous
tactics,’ ” McCauley v. First Unum Life Ins. Co., 551 F.3d
126, 137 (2d Cir. 2008) (quoting Radford Trust v. First Unum
Life Ins. Co.,
321 F. Supp. 2d 226, 247 (D. Mass. 2004), rev’d
on other grounds, 491 F.3d 21, 25 (1st Cir. 2007)). Indeed, in
Saffon, we attributed the trend of state prohibitions on discretionary
provisions in insurance contracts to “the cupidity of
one particular insurer, Unum-Provident Corp., which boosted
its profits by repeatedly denying benefits claims it knew to be
valid. Unum-Provident’s internal memos revealed that the
company’s senior officers relied on ERISA’s deferential standard
of review to avoid detection and liability.” 522 F.3d at
867; see also Radford Trust, 321 F. Supp. 2d at 247 n.20 (collecting
cases). Moreover, the CSA [California Settlement Agreement] notes that Unum was subject to “a multistate targeted examination” of its “claims handling practices,” which resulted in a settlement agreement similar to the CSA. And the CSA was the product of investigations by the State of California into Unum’s claims handling
practices.

Erroneous and arbitrary benefits denials.  Bad faith contract interpretations.  Other unscrupulous tactics.  Boosting profits by repeatedly denying claims it knew to be valid.  All the while relying on ERISA’s deferential standard of review to avoid detection and liability.  And these are the people we are supposed to trust because, after all, they are fiduciaries.