McKennon Law Group, Author at McKennon Law Group

When you purchase an own occupation individual disability insurance policy, the insurer promises to pay for total disability or residual disability in the event you are unable to perform the substantial and material duties of your occupation due to an injury or sickness. However, recovering under your disability policy may entail a multistep process as summarized below.

Step 1: Supporting Your Long-Term Disability Insurance Claim

Gather and request all relevant medical and occupational information. Your employer may need to provide information regarding your occupational duties and salary information. Health care providers may take anywhere from a few days to a few weeks to transmit your medical records. In the meantime, speak with your physicians/therapists about certifying your disability status in a letter to the insurer or by completion of an Attending Physician Form. Make sure your physicians/therapists understand your specific occupational duties (e.g., sitting or walking for prolonged periods, using a keyboard or specific tools, lifting requirements), so they have a clear picture of how your medical condition prevents you from performing these duties. A certification letter offers strong support for your disability, describing your medical condition and the objective and/or subjective proof of your medical condition, describing your occupational duties, and describing why your medical conditions render you unable to perform the substantial and material acts necessary to the performance of your occupation in the usual or customary way and with reasonable continuity.

Step 2: Filing Your Long-Term Disability Insurance Claim

Once you have obtained the necessary medical and occupational information necessary to support your disability claim, you must file a claim for disability benefits with your disability insurance carrier. If you do not have your disability policy handy, request a copy of from your insurer. The policy contains a description of your benefits and your insurer’s definition of “disability.” Review the insurer’s definition of “disability” and compare it with the California definition. Under California law, “total disability” means that the insured is unable to perform the substantial and material acts necessary to the prosecution of your occupation in the usual or customary way and with reasonable continuity. You need only satisfy the easier of the two standards to qualify for disability benefits under your individual policy. If you believe that you qualify, request and complete the required claim forms and submit them to the insurer. Many carriers now have the forms available online. Keep copies of all the documents you submit and all communications you have with the insurer.

Step 3: Monitoring Your Long-Term Disability Insurance Claim Status

The insurer must approve or deny your claim within 30 days following receipt of all necessary information. Note the insurer may request a 30-day extension by notifying you in writing within 30 days after your claim is filed. Similarly, if the insurer requests additional medical information, they may need to have another 30 days following receipt of the requested information to issue a decision on your claim. Therefore, the faster insurers receive your medical documents and support for your disability, the sooner they will render a decision on your disability insurance claim. Make a note on your calendar of the last correspondence you had with the disability insurance insurer, and call the insurer to check the claim status if you do not receive any updates within 30 days.

Step 4: Handling a Long-Term Disability Insurance Claim Denial

If your claim is denied, review the denial letter and note the reasons provided. Common reasons for denials include a lack of supporting medical documentation, the insurer’s determination that a medical condition is not severe enough to be disabling and/or that there is no objective evidence to support your disability. If you have additional supporting documentation, you may contact the insurer to submit additional information for an appeal, or another review of your claim. However, if your documentation supports your disability, and you suspect your insurer improperly denied your claim, consult with an experienced insurance coverage attorney such as the McKennon Law Group PC to determine whether you have a good case that the law firm will take on a contingency fee basis. If your insurer breached your disability insurance contract and/or acted in bad faith, an experienced attorney can help you recover not only the policy benefits, but also emotional distress damages, consequential damages, attorneys’ fees, pre-judgment interest and punitive damages.

McKennon Law Group PC is extremely well suited to litigate your ERISA and bad faith disability, health or life insurance claims. We are nationally recognized experts in insurance bad faith law and ERISA insurance claims, appeals and litigation. With offices in Los Angeles, Orange County, San Francisco, and San Diego, contact us today to learn how our attorneys can help you with your ERISA and bad faith insurance claims.

For additional information, please see our Disability Insurance FAQs and Insurance Bad Faith FAQs.

Under your employer-sponsored disability policy, you are entitled to income replacement benefits if you are disabled and unable to work due to an injury or sickness. However, recovering on the policy may involve navigating a multistep process. Below is a summary of different components to a claim for disability benefits.

Step 1: Filing Your ERISA Long-Term Disability Claim

First, Gather and request all relevant medical and occupational information. Your employer may need to provide information regarding your occupational duties and salary information. Health care providers may take anywhere from a few days to a few weeks to transmit your medical records. In the meantime, speak with your physicians/therapists about certifying your disability status in a letter to the insurer or by completion of an Attending Physician Form. Then obtain the required claim forms/plan documents from your employer. Your policy contains a description of your benefits, the definition of “disability” and applicable timelines for when to submit claims and expect decisions. Often, the plan administrator will request your medical and occupational information from your health care providers and employer, but you should maintain open lines of communication with these parties to confirm the documents are provided in a timely manner, so your claim is not delayed. Secondly, speak with your providers about certifying your disability status in a letter to the insurer. Make sure your providers understand your specific occupational duties, so that they can present a clear picture of how your disability prevents you from performing these duties. Third, keep copies of the documents you submitted, note when you submitted them and any communications you have with the insurer. Finally, if your policy specifies deadlines for filing suit, mark the dates on your calendar.

Step 2: Monitoring Your ERISA Long-Term Disability Claim

Refer to your policy for specific timeframes. Most insurers will take 45 days to issue decisions on disability claims, and in many cases, will request one or more 45-day extensions. If you do not receive any updates within the specified time period, contact your insurer for a status update. However, if you still do not receive any response beyond 45 days after the insurer received all the relevant information on your claim, consult with an experienced ERISA attorney to assess whether you can file suit based on the plan’s failure to establish or follow for claims procedures.

Step 3: Appealing an ERISA Long-Term Disability Claim Denial

If your ERISA disability claim is denied, you should receive a written denial letter from the insurer explaining the reasons for the denial. Common reasons include a lack of supporting medical documentation, or the insurer’s determination that a medical condition is not severe enough to be disabling. The denial letter may also offer guidance on what additional documents you need to submit. Typically, you have 180 days from the denial date to request an administrative appeal, or a review of your claim. If necessary, request an extension of this deadline. Mark this date on your calendar, as your failure to request an appeal by the deadline will constitute a waiver of your future rights to dispute the decision. Consult with an ERISA attorney to ensure your appeal is complete and all the relevant documents are submitted to the insurer to support your claim. As to why Often times, the insurer will not tell you that the appeal is your last chance to submit documentation needed to prove your disability claim in litigation. An attorney can make sure all deadlines are met, and your claim file is complete so you have a strong case in litigation.

To read our article on why to hire an attorney for your appeal, click here.

Step 4: Bringing Suit to Recover Your ERISA Long-Term Disability Benefits

After your appeal is denied, you may bring a suit in federal court against the plan administrator or more typically, against the claims administrator (the insurer denying the claim) for benefits, attorneys’ fees, pre-judgment interest and costs. If you have not yet done so, consult with an experienced ERISA attorney to help you file suit. Because many attorneys are unfamiliar with the intricacies of ERISA regulations and/or litigating in federal court, you should find an attorney who specializes in handling ERISA cases.

McKennon Law Group PC is extremely well suited to litigate your ERISA disability, health or life insurance claims. We are nationally recognized experts in insurance bad faith law and ERISA insurance claims appeals and litigation. With offices in Los Angeles, Orange County, San Francisco, and San Diego, contact us today to learn how our attorneys can help you with your ERISA and bad faith insurance claims.

For additional information, please see our ERISA FAQs and Disability Insurance FAQs.

Directors and officers liability insurance, also called D&O, covers a company’s former and current directors and officers, as well as the corporate entity, against defense fees, costs, and damages in connection with a lawsuit alleging that they committed certain wrongful acts or omissions while acting as directors and officers for the company.

Directors and officers liability insurance is liability insurance payable to the directors and officers of a company, or the company itself, as reimbursement for losses related to defense costs as a result of loss related to the legal action taken alleging the insured committed wrongful acts in their capacity as directors and officers.

D&O insurance policies may cover defense fees and costs in connection with criminal and regulatory investigations and lawsuits. D&O insurance claims potentially cover claims made by individual and company shareholders in customers, regulators, shareholder-derivative actions, and competitors.

D&O policy forms often increase legal fees and costs necessary to resolve disputes between those insured and their D&O insurers since they vary from insurer to insurer and industry to industry.

We are well suited to litigate your D&O insurance claims.We are nationally recognized experts in insurance bad faith law and litigation, and also have experience litigating D&O insurance claims. We will aggressively litigate your case to achieve success. Contact us today to learn how our Los Angeles and Orange County Attorneys can help you with your D&O insurance claims.

Policyholders often face a formidable challenge proving causation on property damage claims, particularly when insurance companies insist on deferring to their own experts and adjustors. Of course, insurance companies must conduct reasonable investigations and review and evaluate all of the evidence before making a claim decision. The Ninth Circuit Court of Appeals held in an insurance action where the policyholder provides admissible evidence showing a genuine dispute as to coverage, the evidence should be evaluated by a trier of fact. Pyramid Technologies Inc. v. Hartford Casualty Insurance Co., 2015 DJDAR 6205 (Cal. App. May 19, 2014).

Pyramid involved a policy issued by Hartford Casualty Insurance Company (“Hartford”) to Pyramid Technologies (“Pyramid”) for business personal property replacement costs, lost business income and additional expenses. In 2005, Pyramid’s warehouse flooded, but the water did not come into contact with inventory. After discovering the flood, Pyramid was concerned about the humidity level in the warehouse and asked Hartford to test the inventory. Hartford refused to test for damage, after its expert, Peter Helms, performed a humidity test following removal of most of the water and concluded the flood did not reach a level to damage the inventory. Pyramid’s expert, David Spiegel, opined the humidity levels rose to over 90% during the flood and exceeded the levels of the moisture-proof packaging. Pyramid employees conducting inventory after the flood quarantined over 250,000 items with corrosion, tarnish or discoloration damage. Hartford retained Dr. Arum Kumar to conduct limited tests of the quarantined items and he found less than half the items tested were damaged, two failed “suitability standards” and concluded the damage was caused by moisture, but not by the flood. Pyramid’s expert, Ken Pytlewski, challenged Dr. Kumar’s opinion that corrosion caused by the flood would be uniform, and concluded the damaging corrosion was caused by the high humidity attributed to the flood. However, Hartford still refused coverage based on its own experts’ determinations that flood did not damage inventory in the warehouse.

Subsequently, Pyramid filed a civil action for breach of contract and the breach of the implied covenant of good faith and fair dealing. The district court granted summary judgment for Hartford without holding Daubert hearings to evaluate Pyramids’ expert testimony, and Pyramid appealed.

The Court of Appeals reversed and remanded, holding summary judgment was improper as there was a genuine dispute as to whether the flood damaged Pyramid’s inventory. First, the Court held evidence from Pyramid’s experts showing the flood caused the damage triggering coverage was admissible, and its exclusion constituted an abuse of discretion. Spiegel’s report provided evidence that Helms’ report relied on improper data regarding humidity, that humidity exceeded 90% during the flood and the 90% humidity likely compromised the moisture-proof packaging of Pyramid’s products. Pytlewski’s report contradicted Dr. Kumar’s statement that a flood would have caused uniform corrosion damage, an assumption underlying his determination. These reports permitted a trier to fact to infer the flood could have caused the damage to the inventory. The court stated:

After an expert establishes admissibility to the judge’s satisfaction, challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.

Secondly, the court stated there were triable issues of fact as to whether Hartford breached the insurance contract or acted in bad faith by failing to investigate and pay Pyramid’s claims for loss of inventory. Hartford argued Pyramid did not show the flood caused the claimed damages, as opposed to other factors. However, the court noted that evidence of condensation on the packaging and high humidity levels permitted a reasonable inference of causation. Accordingly, summary judgment was inappropriate. Next, the court held that there existed a triable issue of fact regarding Pyramid’s claim for breach of the implied covenant of good faith and fair dealing claim in light of evidence that Hartford and its experts discouraged Pyramid’s claim, refused to test inventory, conducted inadequate testing, denied coverage and extended a “low-ball” offer. The court held that if viewed in the light most favorable to Pyramid, these facts permit an inference such that a reasonable trier of fact could have found for Pyramid. Finally, the Court of Appeals affirmed summary judgment as to Pyramid’s business interruption claim, as Pyramid failed to show it lost customers due to the flood.

Pyramid is mostly a policyholder-friendly decision as it sets standards for policyholders to utilize, especially regarding expert testimony, that allow them to defeat summary judgment motions. In litigation, the policyholder’s credible expert evidence should be admitted to support an inference in favor of coverage, and will be viewed in a light most favorable to the policyholder if the insurer moves for summary judgment.

On May 13, 2014, a respected Central District of California Federal Court Judge, Margaret M. Morrow, issued an Order granting Plaintiff’s Motion for Attorneys’ Fees and Costs. In the Order, Life Insurance Company of North America (“LINA”) was ordered to pay the McKennon Law Group PC approximately $50,000 in attorneys’ fees and costs following the successful resolution of a dispute over long-term disability insurance benefits due pursuant to an ERISA-governed group policy. LINA reinstated the plaintiff’s claim for long-term disability benefits shortly after the McKennon Law Group PC filed the Complaint. In the Order, Judge Morrow approved Robert McKennon’s hourly rate based upon Mr. McKennon’s experience and skill, which appears to be the highest hourly rate ever allowed for an attorney in an ERISA case filed in Southern California.

McKennon Law Group PC specializes in litigating and resolving all types of business disputes. Our aggressive advocacy and our regional reputation as a leading business litigation firm, enables us to achieve maximum settlements and judgments/verdicts at trial. We have over 25 years of experience litigating business disputes. Our firm handles all types of complex corporate, commercial, and business litigation, including:

Breach of contract or license agreements
Breach of implied or express warranties
Breach of oral agreements
Fraud and misrepresentation claims
Unfair competition claims and trade secrets
Tortious interference cases
Intellectual property infringement
Breach of fiduciary duty
Insurance coverage and bad faith litigation relating to business disputes

Sone of our consumer and business litigation cases are taken on a contingency fee basis. You pay nothing and we recover nothing unless we win your case.

There are no other attorneys in California better suited to litigate your business disputes. McKennon Law Group PC’s founding partner, Robert J. McKennon was named in the Business Edition 2012 Thomson Reuters/Super Lawyers annual list of the nation’s top attorneys in business practice areas. We will aggressively litigate your case to achieve maximum success.

Components of an Individual Long-Term Disability Insurance Claim

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