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:


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…

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