A common battle ground in ERISA claims involves the argument that ambiguous terms should be construed against the party that drafted the document. This is known as the doctrine of contra proferentem. See generally E. Erlich, [How to] Conquer Your Enemies and Impress Your Friends with Everyday Latin (2010).
But when the ERISA Plan
You already know that discovery is usually limited in appeals of the denial of ERISA-governed benefits. This is especially true when there is de novo review.
But watch out if a breach of fiduciary duty claim is asserted. That same rule (prohibiting discovery) does not apply when a party seeks discovery into purported breaches of
Many states have banned discretionary clauses in life and disability policies. But remember to look closely at the language… to see if the ban actually applies to the policy at issue.
Here’s the case of Brian H and Alex H v. Blue Shield of California, 2018 WL 5778318 (N.D. Cal. November 1, 2018)(California’s ban
Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added).
So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms?
Here’s a new case that highlights that the limitation still
You already know that many ERISA plans contain discretionary language, which calls for a court to review the ERISA claim denial under an abuse of discretion standard.
But many times a structural “conflict of interest” can occur where the plan administrator has the “dual role” of administering and funding the plan benefit. Courts typically look
ERISA plans and related disability or health policies contain language granting the right to reimbursement of overpayments made to the claimant. Overpayments usually occur when the claimant receives lump sum Social Security benefits, or the claimant receives a tort settlement.
Can the claimant oppose repaying the overpayment by asserting equitable defenses? Maybe.
Here’s
Does an insurer’s litigation history dating back 10 years justify overbroad discovery in an ERISA case? It might… (See below for a strategy to combat this from occurring in your cases).
Also, in each case you should reassess whether or not to argue for the arbitrary and capricious standard. Consider the adverse effects of pushing
Video surveillance can be an effective tool in assessing the level of activity of the disabled claimant. But make sure the video surveillance is performed correctly, and use it properly.
Here’s the case of Eaton v. Reliance Standard Life Insurance, 2018 WL 3639837 (W.D. Tennessee July 31, 2018)(claim denial affirmed where independent physician
You know already that, under ERISA, “the court in its discretion may allow reasonable attorney fee’s and costs so long as the party achieves ‘some success on the merits.’”
But don’t give up yet and just pay the claimant’s attorney fees. Courts apply additional criteria to decide whether to award fees…and these
You know that employer disability policies define “disability” as the inability to perform each of the material duties of the employee’s “regular occupation.”
But what happens when the policy does not define the term “regular occupation”?
And…what if the employer’s job description is different from the Dictionary of Occupational Titles, which provides a