In a major victory for consumers, Governor Jerry Brown signed a bill that makes discretionary clauses – typically contained in ERISA-governed life, health and disability insurance policies/ERISA plans void and unenforceable in new or renewed policies.  SB 621 was authored by Senate Insurance Committee Chair Ron Calderon (D-Montebello) and sponsored by Insurance Commissioner Dave Jones, and was similar to AB 1686 vetoed by Governor Schwarzenengger in 2010.   Discretionary clauses are provisions typically found in group life, health and disability plans that give the administrator/insurer the sole discretion to interpret the policy and to decide if a plan participant or beneficiary is entitled to plan benefits.  In ERISA cases, federal courts have interpreted these clauses to give administrators/insurers a higher standard of review when courts review their decisions.  This meant that the federal courts were required to give greater deference to decisions denying plan benefits under life, health or disability coverages, rather than weighing all the evidence under a “de novo” standard of review and making their own determination as to whether the insured was entitled to benefits under the policy or employee welfare benefit plan. Insurance companies and plan administrators often rely on these clauses when they deny claims, knowing that the insured must demonstrate that the insurance company acted arbitrarily/abused their discretion – typically a burden – in order to prevail in a lawsuit against them.  With the passage of this new law, insurance companies and plan administrators will no longer be able to rely on discretionary clauses in an attempt to insulate their decisions from critical judicial scrutiny.  Accordingly, in the future, judges will no longer be required to defer to the decision of the insurance company and plan administrator, lessening the burden placed on ERISA plan participants and beneficiaries in seeking to overturn insurance claim denials. In voicing his support for the bill, Commissioner Jones explained:

“Discretionary clauses have been increasingly relied upon by insurers to reject legitimate claims for disability insurance when a consumer becomes disabled – insurers know that many consumers will give up their claim and that those who challenge the claim denial face a very high legal burden to overcome the denial since the discretionary clause vests sole discretion in the insurer to decide if the consumer is disabled.  SB 621 levels the playing field and gives consumers an even chance to prove that they are entitled to disability and other insurance, by eliminating the ‘discretionary clauses’ that insurers have been putting into their insurance policies.”

SB 621 goes into effect on January 1, 2012