Accidental Death and Dismemberment Archives - Page 4 of 5

All too often, we see insurance companies deny insurance claims by attempting to opportunistically rescind insurance policies. This practice has become more prevalent in recent years as insurers look for ways to deny insurance claims.

Anyone who has purchased a disability, life or health insurance policy is likely familiar with the significant paperwork involved in the insurance application process. The paperwork includes policy notices, policy applications, supplemental policy applications, personal history questionnaires, policy warnings, medical examination documents, etc. These will include numerous and detailed questions relevant (and often not so relevant) to the risk being insured. An insurance agent or broker will ask questions on the policy application and often additional questions not on the application. Only after the applicant has answered countless questions, will the insurance company decide whether to issue the policy. Many applicants do not appreciate why insurance companies go to such great lengths before issuing a policy. The answer: they want to evaluate the risk that the applicant poses to them. If there exists too much risk of a payout under the policy, they will not underwrite that risk by issuing a policy. Throughout the application process, like the claims process, insurers often have a duty to investigate the information contained on the application. The failure to engage in such an investigation may result in the insurer being precluded under the law from later rescinding a policy that it decided to issue.

When insureds file claims under their policies, insurers often first look to determine if they can rescind the policy, asserting that the policy should be considered null and void as if it was never issued in the first place. As we explained in a previous blog article, rescission legally renders the contract as if it never existed and releases both parties from their obligations under the contract. An insurance company is often allowed to rescind a contract when there is a material misrepresentation on the insurance application. Many times, the omission was an honest mistake or it was excused by the broker or agent as immaterial. Regardless of the purposefulness of the omission, the insurance company may still have the right to rescind the contract.

There are exceptions however. One involves the insurer’s duty to investigate the information on the application at the time the application is submitted and its duty to investigate the possible basis for rescission when handling the claim. If there is an implication that the application was not completely accurate, and the insurer fails to investigate, then the insurer may have waived the right to rescind the policy. For example, the applicant fails to state that she had seen a doctor in the last five years, yet the application reveals she is on several prescription medications. Or, the evidence may arise from an outside source. For example, the insured may submit a claim for a treatment which strongly implies that the applicant had a non-disclosed pre-existing condition at the time the application was submitted. Insurance companies have a duty to explore such information or they may lose the right to rescind the policy. As one court stated, an insurance company “may not blindly ignore evidence of misrepresentation, collect premiums, and then opportunistically rescind once a claim is filed.” Star Insurance Co. v. Sunwest Metals, Inc., 691 F.App’x 358, 360 (9th Cir. 2017). The issue is not just whether the insurer had actual knowledge of the material misrepresentation, but also whether the insurer could have or would have obtained the information if it had exercised reasonable diligence in investigating the claim.

In DuBeck v. California Physicians’ Service, 234 Cal.App.4th 1254 (2015), the California Court of Appeal addressed an insurance company’s failure to diligently investigate an application. Bonnie DuBeck submitted an application for health insurance to California Physicians’ Service, doing business as Blue Shield of California. In her application, she failed to disclose that she had recently visited a doctor to have a lump in her breast examined. DuBeck’s application was approved. Five days after Blue Shield issued the policy, DuBeck underwent breast cancer surgery. She submitted bills for her treatments to Blue Cross. Blue Cross became suspicious that, given the timing of the billings, the condition had arisen before DuBeck’s enrollment. “Yet by its own admission Blue Shield neither commenced an investigation nor obtained records confirming the date of appellant’s first breast cancer-related procedure for another year.” Id. at 1268. By the time Blue Cross had started its investigation, DuBeck had been diagnosed with leukemia. During that time, DuBeck submitted various bills to Blue Cross, some of which Blue Cross refused to pay. Ultimately, Blue Cross cancelled the policy. Of note is that Blue Cross did not rescind the policy – it only cancelled the policy. Two years after Blue Cross canceled the policy, DuBeck sued Blue Cross to force payment of the unpaid medical bills.

In the trial court, Blue Cross moved for summary judgment. It argued that it had the right to rescind the insurance contract because DuBeck had lied on the application. The trial court granted Blue Cross’s motion. DuBeck appealed.

The court of appeals reversed the trial court on several different grounds. One of those grounds was that Blue Cross failed to properly and promptly investigate the information in the application once it received information putting it on notice that DuBeck had omitted information from her application, thus waiving its right to rescind the policy. As the court of appeals explained:

By ignoring information that would have resolved the truthfulness of the representations in appellant’s application at an early stage and determining at that time whether to continue as her insurer, Blue Shield allowed appellant to incur substantial medical expenses and dissuaded her from investigating the availability of government assistance. Blue Shield’s lack of diligence in the early months of the policy and the apparent prejudice to appellant provide a second and independent basis for rejecting its claimed right to rescind. Id.

Insurance companies have an affirmative duty to investigate the applications submitted to them. If they have failed to do so, then they may lose the right to rescind a contract that was less than complete. Insurers will still often attempt to rescind a policy, sometimes years after they had evidence that something was amiss. Determining whether an insurance company can properly rescind a policy is a difficult task for most insureds. McKennon Law Group PC has extensive experience determining whether an insurer can deny your life, health or disability insurance claim by rescinding your policy. Some of the issues we examine: was there actually a misrepresentation? Was the misrepresentation innocent or intentional? Was it material and how can the insurer prove it was material? What did the agent/broker know or say in the application process? Was there some information in the claim file that should have led the insurer to suspect a material misrepresentation? We expertly determine and often are able to successfully challenge an insurer’s attempted rescission. If you have a denied life, health or disability insurance claim that is the subject of an attempted rescission, call us for a free consultation.

In the May 24, 2018 issue of the Los Angeles Daily Journal, the Daily Journal published an article written by the McKennon Law Group’s Robert J. McKennon. The article addresses a recent case by the Ninth Circuit Court of Appeals, which held that if an insured with a preexisting medical condition suffers from an accidental injury, the insured is not precluded from recovery under an accidental death and dismemberment policy if the preexisting condition did not substantially contribute to the injury. Insurers often attempt to use preexisting conditions as an excuse to deny payment under AD&D policies. This recent Ninth Circuit opinion helps insureds by making it clear that a preexisting condition’s slight contribution to an injury is insufficient to bar compensation.

This article is posted with the permission of the Los Angeles Daily Journal.

Preexisting Condition Doesn’t Preclude Coverage

The 9^th Circuit ruled that if an insured with a preexisting medical condition gets in an accident, but the condition does not substantially contribute to the injury, the insured can recover.

By Robert J. McKennon

Insurance policies providing accidental death and dismemberment benefits are fairly common. Many employers provide this important insurance for their employees. These policies are often governed by the Employee Retirement Income Security Act of 1974. A large percentage of AD&D policies exclude coverage for accidental injuries “caused or contributed by” a preexisting medical condition. If a preexisting condition led to the injury, even in a small way, most insurers will deny an AD&D claim. Many people have preexisting conditions that they have managed for years that could be relevant to AD&D coverage. Conditions such as diabetes, for example, can prevent wounds caused by an accident from healing properly, potentially leading to dismemberment.

If an insured with a preexisting medical condition gets in an accident, but the condition does not substantially cause or contribute to the dismembering injury, does the preexisting condition bar an AD&D claim? The 9th Circuit Court of Appeals in a recently published case, Dowdy v. Metro. Life Ins. Co., 2018 DJDAR 4576 (9th Cir. May 16, 2018), answered this question in the negative and explained that such insureds are not necessarily barred from obtaining payment under an AD&D policy. Tommy Dowdy suffered from diabetes. Unfortunately, Dowdy was in a car accident in which his car rolled off California State Route 4. He suffered extensive injuries, including a “semi-amputated left ankle.” Dowdy was hospitalized and discharged after a month-long stay. However, his ankle failed to improve in part because of his diabetes and because he suffered from a persistent leg infection. Five months after the accident, Dowdy’s left leg was amputated below the knee.

Dowdy and his wife were covered by an AD&D policy provided by Metropolitan Life Insurance Company. The policy was governed by ERISA. The policy stated in the Coverage Provision that:

If You or a Dependent sustain an accidental injury that is the Direct and Sole Cause of a Covered Loss described in the SCHEDULE OF BENEFITS, Proof of the accidental injury and Covered Loss must be sent to Us. When We receive such Proof We will review the claim and, if We approve it, will pay the insurance in effect on the date of the injury.

Direct and Sole Cause means that the Covered Loss occurs within 12 months of the date of the accidental injury and was a direct result of the accidental injury, independent of other causes[.]

The policy also included an exclusion which stated that MetLife would not pay “for any loss caused or contributed to by . . . physical . . . illness or infirmity, or the diagnosis or treatment of such illness or infirmity[.]”

Dowdy filed a claim under his AD&D policy with MetLife. MetLife denied the claim on the basis that Dowdy’s diabetes contributed to the medical problems that resulted in the amputation. Dowdy then filed an administrative appeal with MetLife challenging the claim denial. MetLife upheld its denial determination, concluding that the accident was not the “direct and sole cause” of the amputation “independent of other causes” as set forth in the Coverage Provision, and that the policy’s Illness or Infirmity Exclusion applied because Dowdy’s diabetes contributed to the loss.

Dowdy then sued MetLife. Both parties filed cross-motions for judgment under Federal Rule of Civil Procedure 52. The district court found that diabetes caused or contributed to the need for amputation, affirmed the denial of benefits and entered judgment in favor of MetLife. Dowdy appealed to the 9th Circuit.

The court reversed the district court, first reviewing its holding in McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129 (9th Cir. 1996). There, the court determined that where the applicable plan language is inconspicuous, the “policyholder reasonably would expect coverage if the accident were the predominant or proximate cause of the disability.” If, however, the applicable language is conspicuous, recovery could be barred if a preexisting condition substantially contributed to the loss, “even though the claimed injury was the predominant or proximate cause of the disability.”

It was undisputed that Dowdy’s diabetes condition contributed to the complications with his wounds and thus to his leg amputation. MetLife therefore argued that the accident was not the “direct and sole cause of the loss,” which was not a covered loss. The court rejected this contention, explaining that “[i]n order to be considered a substantial contributing factor for the purpose of a provision restricting coverage to direct and sole causes of injury, a pre-existing condition must be more than merely a contributing factor.” (Emphasis original).

The court looked to a variety of sources to determine what should be deemed to be “a substantial cause.” For example, one respected source explained that the word “substantial” denotes that the conduct had an effect strong enough that it would lead “reasonable [people] to regard it as a cause” in the more concrete sense and not just in some “philosophic sense.” Ultimately, the court held that there must be evidence showing that the preexisting ailment contributed a “significant magnitude of causation.” The preexisting condition cannot “merely [be] related to the injury[.]”

The 9th Circuit ruled that there was no evidence in the administrative record that Dowdy’s diabetes substantially caused or contributed to the amputation of his leg. Thus, under the policy’s Coverage Provision, Dowdy was eligible to collect policy benefits.

The court also rejected MetLife’s position that the exclusion applied since Dowdy’s diabetes condition was a “cause” of or “contributed to” the amputation, noting that exclusions are narrowly construed and that the “substantial contribution” standard applied in interpreting the exclusion. Because there was no evidence that Dowdy’s diabetes condition substantially caused the amputation, the court reversed the district court, finding that Dowdy was entitled to payment under the policy.

Insurers often attempt to use preexisting conditions to deny payment under AD&D policies. Given how common chronic conditions are in modern life, it is not surprising that insurers often have numerous arguments as to why they should not be forced to pay under these policies. However, the 9th Circuit’s decision gives effect to “the policy of [ERISA] to protect . . . the interests of participants in employee benefit plans and their beneficiaries” and to “increase the likelihood that participants and beneficiaries . . . receive their full benefits.” 29 U.S.C. Sections 1001(b), 1001b(c)(3). Insureds reasonably expect that simply having a preexisting condition that is somewhat related to the injury is not sufficient to deny an accident claim under an AD&D policy. Whether it is diabetes or countless other conditions, persons with a preexisting condition may still have the right to collect under an AD&D policy as long as the preexisting condition is not a substantial cause of the injury. Plan participants are well served under Dowdy now that insurers like MetLife cannot argue that inconsequential preexisting conditions bar coverage for policy benefits that they desperately need.

Robert J. McKennon is a shareholder of McKennon Law Group PC in its Newport Beach office. His practice specializes in representing policyholders in life, health and disability insurance, insurance bad faith, ERISA and unfair business practices litigation. He can be reached at (949) 387-9595 or rm@mckennonlawgroup.com. His firm’s California Insurance Litigation Blog can be found at www.californiainsurancelitigation.com.

Generally, an insurer need not investigate statements made in an application for insurance, subject to certain exceptions. Instead, the potential policyholder or applicant must fully disclose all known material information. If a potential insured does not correctly disclose information on an application (even innocently), the insurer may later try to rescind the insurance policy. When an insurer “rescinds” a policy, it renders the contract as if it never existed and frees both parties from their obligations under the contract. Practically, this means that the insurance company is no longer obligated to pay the claims for life insurance, accident insurance, health insurance, long-term care insurance or long-term disability insurance benefits and the policyholder no longer has to pay the policy’s premiums. Insurers often look for ways to rescind insurance policies so they can deny insurance claims.

When can an insurer rescind?
Under California law, an injured party is entitled to rescind an insurance policy where there has been concealment on the application, regardless of intent to deceive, including where a representation is false in a material point. Upon discovery of the material misstatement or nondisclosure on the application, the insurer can promptly rescind the policy. The rescinding insurer must also give notice to the policyholder and return any benefits gained under the contract, such as all premium payments paid to the insurer. For example, if an applicant for life or accidental death and dismemberment insurance failed to disclose a history of smoking on the application, and then later died of cancer, the insurer would likely attempt to rescind the policy. If the insurer successfully rescinds the policy, it must also return the premium payments to the insured, but is no longer obligated to pay the death benefits.

“But I told the insurance agent when I applied for the policy…”
Oftentimes, potential insureds apply for insurance with the help of a licensed insurance agent or broker. Although both an insurance agent and an insurance broker assist a potential policyholder in the application process, the primary distinction between the two is who each represents. An insurance agent represents the insurer; a broker does not. Although this distinction has important legal implications, courts sometimes use “agent” and “broker” interchangeably. This usage confuses terminology that already relies on an unpredictable, independent factual examination of the relationship on a case-by-case basis.

Regardless, in practice, the broker vs. insurance agent distinction becomes particularly important when an insurer attempts to rescind a policy based on a material misrepresentation on the initial application, i.e., a failure to disclose pertinent medical or lifestyle history. Occasionally, a potential insured will make accurate disclosures to the insurance agent or broker as part of the application process, but the agent or broker will tell the potential insured that such disclosure on the application is unnecessary. Depending on whether the insurance agent is treated as an agent of the insurer, knowledge of the misrepresentation, and consequent liability, will be imputed differently.

O’Riordan v. Federal Kemper Life Assurance
In O’Riordan v. Federal Kemper Life Assur., 36 Cal.4th 281 (2005), the California Supreme Court discussed the importance of the distinction between an insurance agent and a broker when it comes to rescission. In O’Riordan, potential policyholder, Amy O’Riordan, applied for life insurance through an independent insurance agent, Robert Hoyme. The application for the life insurance policy asked the following two questions:

“Have you smoked cigarettes in the past 36 months?”

“Have you used tobacco in any other form in the past 36 months?”

Ms. O’Riordan answered “no” to both questions on the application, although she apparently told the insurance agent that she was a former smoker and “might have had a couple of cigarettes in the last couple of years.” In response, the insurance agent assured Ms. O’Riordan “[t]hat’s not really what they’re looking for. They’re looking for smokers.”

Several years later, Ms. O’Riordan died of breast cancer. When her husband attempted to collect the death benefits under the policy, the insurer attempted to rescind. The insurer conducted an investigation and found that Ms. O’Riordan’s physician, a year before she applied for the policy and within the thirty-six-month period, noted her request for a nicotine patch. The physician’s report said that, although she quit smoking years earlier, “recently due to some stressors, she did start to smoke a little bit again, but is not smoking as much as she smoked previously.” On this basis, the insurer rescinded the policy and refused to pay the death benefits to Mr. O’Riordan.

Mr. O’Riordan filed a lawsuit and the case made it all the way to the California Supreme Court. Ultimately, the Court determined that Ms. O’Riordan’s disclosure to the insurance agent raised an issue as to whether the insurer could rescind the policy. If the agent was acting as an agent of the insurer, then the agent’s knowledge of Ms. O’Riordan’s disclosures of a past history of smoking would be imputed to the insurer. In other words, because the agent knew, the insurance company had constructive knowledge of the disclosure. Thus, despite the fact that the agent had not actually communicated Ms. O’Riordan’s history of smoking to the insurer, the court still reversed the lower court opinion and allowed Mr. O’Riordan’s case to proceed since the insurer could not rescind the policy.

Insurers often use rescission of insurance policies to deny insurance claims, especially life, disability and health claims. Most policyholders do not understand their rights and assume insurers can rescind their policies. If you are a victim of an insurer’s attempt to rescind your life, health or disability insurance policy, do not cash the insurer’s check for premium refund until you call McKennon Law Group PC to assess your rights to fight this type of abusive insurance company practice. You may be able to sue your insurer for breach of contract and breach of the implied covenant of good faith and fair dealing (insurance bad faith) for attempting to rescind your valuable insurance policy.

The McKennon Law Group PC periodically publishes articles on its Insurance Litigation and Disability Insurance News blogs that deal with frequently asked questions in insurance bad faith, life insurance, long-term disability insurance, annuities, accidental death insurance, ERISA and other areas of law. To speak to a highly skilled Los Angeles long-term disability insurance lawyer at the McKennon Law Group PC, call (949)387-9595 for a free consultation or complete the free consultation form on the firm’s website.

Accidental Death & Dismemberment (AD&D) insurance pays the insured and his or her beneficiaries a set amount of money if the insured’s death or dismemberment is the direct result of an “accident.” In the event of a death caused by an accident or an accident that results in the insured losing his or her eyesight, speech, hearing, or a limb, AD&D will pay the insured or his or her beneficiaries a specified amount. The term “accident” has been given many different meanings in insurance policies and has been heavily litigated throughout history. Courts have encountered significant difficulty attempting to determine when an event is an “accident” for insurance law purposes. While the definition of the term “accident” will vary based upon the specific provisions contained in the policy at issue, the following recent court decisions demonstrate the issues that can complicate the determination of whether a death or insuring event is accidental.

In Prather v. Sun Life & Health Ins. Co., 843 F.3d 733 (7th Cir. 2016), a case decided under ERISA, the insurance policy at issue limited coverage to “bodily injuries that result directly from an accident independently of all other causes.” An insured tore his Achilles tendon while playing basketball, and underwent surgery to repair his tendon. Despite the otherwise successful surgery, the insured collapsed at work and died shortly thereafter due to a blood clot that broke loose from his injured leg and traveled to his lung causing cardiac arrest. Sun Life argued that the insured’s cardiac arrest and ensuing death were not entirely consequences of his accident causing his Achilles tendon to tear, but was a consequence of the surgery he underwent. The court was not persuaded by Sun Life’s argument, instead determining that Sun Life failed to make any plausible showing that the surgery, rather than the accident that necessitated the surgery, caused the insured’s death. Even though a beneficiary has the burden to prove a death was accidental, the court explained that a beneficiary is not required to disprove any possible alternative cause of death, even when a policy requires a death result from an accident “independently of all other causes,” as such a requirement would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death.

In McDonald v. Onebeacon Am. Ins. Co., 2015 WL 11439080 (N.D. Ga. 2015), the insured, a truck driver, was found unresponsive in his truck shortly after an accident, and he died later that day. The truck driver was massively overweight and suffered from an enlarged heart and other coronary issues, and an examining doctor concluded that heart disease and resulting arrhythmia were the cause of his death. The policy insuring the truck driver defined an “accident” as “a sudden, unexpected, specific and abrupt event that occurs by chance at an identifiable time and place.” The court denied the insurer’s motion for summary judgment in part, finding that even though the truck driver’s heart condition was quite possibly the only cause of his death and his crash, his heart episode could fall within the policy’s broad definition of an accident. The court reasoned that the truck driver’s heart episode, occurring at the moment he crashed his vehicle, was a sudden and specific event that appears to have been unexpected and independent of all other causes.

In Wichita Fireman’s Relief Ass’n v. Kansas City Life Ins. Co., 609 Fed. Appx. 530 (10th Cir. 2015), the chordal structures in a fireman’s heart ruptured while he was fighting a condominium fire. After the fire, the fireman underwent surgery revealing a damaged mitral valve and the three torn chordal structures. The fireman died shortly after surgery. The policy at issue provided benefits for a loss resulting “directly and independently of all other causes from accidental bodily injury.” The policy also excluded coverage for a loss resulting from “bodily or mental illness or disease of any kind, or medical or surgical treatment of the illness or disease.” The Wichita Fireman’s Relief Association argued that the fireman’s death was brought on by extreme physical exertion during the fire, and the insurance company argued that the fireman’s death was instead the product of chronic mitral valve disease. The appellate court found there were issues of material fact as to whether the fireman’s heart injury, brought upon by extreme exertion in fighting the fire, constituted accidental bodily injury. The court found that the rupture of the chordal structures within the firefighter’s heart could be found by a jury to be unexpected and unforeseen, even though the strenuous conditions were within his line of duty.

Given the varied interpretations that can apply to provisions within insurance policies covering accidental deaths, and the considerable difficulty courts have encountered when trying to determine what is an accident” for insurance purposes, having an experienced attorney matters to the success of your accidental death claim. If your claim for health, life, short-term disability, long-term disability, or AD&D insurance has been denied, call (949)387-9595 for a free consultation with the attorneys of the McKennon Law Group PC, several of whom previously represented insurance companies and are exceptionally experienced in handling ERISA and Non-ERISA insurance claims.

If you have a claim that has been wrongfully denied or are currently in the claims handling process, it is important to always keep in mind the potential impact of your conduct on future litigation. When dealing with a sophisticated insurance company, you want to put your best claim forward and be prepared for the potential need to file a lawsuit. In this article, we discuss our top eight tips for when you take your insurer to court, from the importance of hiring an attorney with relevant experience to preparing for the long haul that is litigation against an insurance company.

1. Hire an attorney with experience in insurance litigation who actually goes to trial.
This may seem like a given, but insurance law is a complex and requires an experienced insurance litigation attorney to understand its nuances. Even at the outset, before litigation begins, fundamental legal questions dictate an insurer’s conduct. These legal questions should also alter the way you, as the insured or plan participant, approach the matter. For example, if you receive long-term disability benefits through your employer, your claim may be governed by the stringent, pre-litigation procedures of the Employee Retirement Income Security Act of 1974, otherwise known as “ERISA.” ERISA requires that you exhaust an administrative process, but it also affects the amount of money at stake, which you will have to consider before filing suit.

An experienced insurance attorney understands these nuances and importantly, how it alters an insurer’s approach to the matter. And, look for an attorney who actually goes to trial and does not settle all of his or her cases. We know many attorneys who handle life, health and disability insurance claims who claim to have a big reputation, but who never go to trial. If your attorney has a reputation for being afraid of trial, this will likely greatly affect the recovery you get. Insurers are in the business of assessing risk and they do this with your claim and your counsel. If you have an attorney who is willing to go to trial, the insurer will assess the risk much more favorably, impacting your recovery through settlement. Having an experienced advocate on your side early on the claim process can significantly impact the likelihood of success and help you understand the status of your claim. Let the insurer know you mean business, do your research and hire an experienced attorney with a proven track record, and it can make all the difference.

2. If you feel the insurer wrongfully denied your claim, seriously consider legal recourse.
People buy insurance for a variety of reasons, but typically, an individual or entity purchases insurance to protect itself from an unknown, future risk. You pay a premium for that protection against uncertainty, and share that risk across a pool of other, similarly situated insureds. Ideally, you avoid the future risk entirely, but in the unfortunate circumstance that you do not, you understandably expect your insurer to pay as promised. In other words, you expect the insurer to provide the insurance you paid premiums on for years, not delay and then wrongfully and in bad faith deny your claim.

If your benefits were not paid despite your cooperation throughout the process, your claim may have been wrongfully denied. If so, do not be afraid to seriously consider legal options and pursue those benefits. The insurer certainly consulted with legal counsel in drafting the insurance policy and structuring its claims handling process; do not be afraid to protect the benefits you paid for and do the same.

3. Meticulously document your communications with the insurer.
You must meticulously document all of your communications with the insurer and if you have a plan through your employer, this should also include all conversations with your employer. For every communication, get a name, telephone number, and what you discussed.

This is important because you want to be able to easily refer to an accurate timeline of events. Further, you can be absolutely sure that even if you are not documenting communications meticulously, your insurer is doing so. Insurers record, log and summarize every communication in your “claim file” in a detailed, organized manner. At the end of the day, if you remember a communication or conversation differently (or do not remember it at all), it will be difficult to support without a record of your own.

4. Meticulously document details regarding your claim.
Same goes for all documents sent to and received by the insurer or employer in support of your claim. This does not just include the letters from the insurer and your letters in response, it should also include any enclosures you send with the letters, a copy of any claim forms you filled out, etc. Keep a chronology of all actions you take concerning your claim.

This applies to everything the insurer receives regarding your claim. Often, the insurer needs medical records or other evidentiary support, such as pictures, x-rays, or other materials. Although the insurer will likely independently seek these records, keep a copy for your own records as well.

5. Prepare your case for appeal or litigation.
Preparing for a fight with your insurer is critically important. Keep copies of everything pertaining to your claim and maintain a back copy, so that if one set is ruined by calamity, at least you will have another backup (best if it’s electronic). Unless your case is governed by ERISA, this may be your only record of events until the insurer’s copy is subject to discovery. If the benefits at issue are very important to you, then you must make failsafe record keeping a priority. Organize your file and make it accessible for your attorney. Be available to discuss all aspects of your claim with your attorney. If you wish to claim damages beyond what your policy benefits provide, gather the evidence and present it in a compelling and organized manner for your attorney.

6. Be honest, straightforward, precise and nice.
When an insurer asks you a question, be honest, straightforward and precise in your answer. If you overstate your claim, it can be difficult to overcome later. For example, in disability insurance claims insurers often ask the insured to fill out a claim form that indicates the limitations and restrictions as recommended by your physician. Often, the form itself invites confusion, but for the sake of argument, let’s assume the form asks whether you can walk or drive. If your ability to walk is limited to two fifteen-minute intervals for a total of thirty-minutes in an eight-hour work day, say that. If you can drive only occasionally for 10 minutes a day, do not state you do not and cannot drive. Be precise.

Also remember to be nice, but firm. In other words, be polite even when the situation is incredibly frustrating, because everything is recorded and could potentially be focused upon in front of a jury. If you get angry, scream profanities and personal insults at the employee handling the claim, and threaten a lawsuit using legal terms you do not understand, a jury will likely find you less sympathetic. If you do become frustrated (you likely will), simply remind the insurer that you did everything asked of you, you paid your premiums, you submitted timely claim forms, you supported your claim and now it is time for them to live up to their side of the bargain. If you are stressed, calmly explain the importance of the benefits to you and your family and the financial stress you have endured as a result of the delay.

7. Watch it on social media!
We discuss this in detail in another blog, which you can read in full, here, but, if an insurer wants to know whether you are acting consistently with your condition of chronic fatigue, an inexpensive way for them to find out is by checking your social media. This can be problematic for two reasons: social media evidence can be easily misconstrued in the insurer’s favor and it may raise problems regarding attorney-client confidentiality. As to the former, if you say that you suffer from chronic fatigue, but then post videos to social media of you running a marathon, nobody is going to believe you. Of course, occasional running may be helpful for your condition, and you may have only been able to walk a third of a mile, but taken out of context, it will not be viewed favorably.

8. Be prepared for the long haul, including going to trial if necessary.
If an insurer denied your claim, you must be prepared for the long haul. Insurance companies are sophisticated enterprises that deal in the business of risk, and litigation suits them. They also have the resources to sustain litigation in the long-term, and depending on the circumstances of your case, this may be used to their advantage.

Accordingly, once you make the decision to sue an insurer, do so with the understanding that you may not see the wrongfully denied benefit(s) for years, (if ever).

The McKennon Law Group PC periodically publishes articles on its Insurance Litigation and Disability Insurance News blogs that deal with frequently asked questions in insurance bad faith, life insurance, long-term disability insurance, annuities, accidental death insurance, ERISA and other areas of law. To speak to a highly skilled Los Angeles long-term disability insurance lawyer at the McKennon Law Group PC, call (714)274-2413 for a free consultation or go to our website at www.mckennonlawgroup.com and complete our free consultation form today.

On July 20, 2017, the Los Angeles Daily Journal quoted Robert McKennon of McKennon Law Group PC in an article entitled “Insurance Claim Denial Because Airbnb Rental May Have Wider Implications,” by Andy Serbe. The article discusses a recently filed complaint, and its broader applications regarding insurance coverage exclusions involving rentals and the impact on the potential for insureds to lose important coverage rights when they engage in once only or sporadic rentals of all or parts of their home. In the article, Mr. McKennon explains that the insurer failed to define the terms in the exclusion, specifically the phrase “other structures reserved for rental.” Accordingly, those terms were ambiguous as applied to the facts of the case (the complaint alleges that the insurer did not cover a claim for damages because the owner used part of the home for an Airbnb rental, which Travelers denied based on this exclusion). Mr. McKennon further explains that, under California law, such ambiguity in exclusions are narrowly construed in favor of the insured. Additionally, the insurer bears the burden of proof when it comes to proving that such an exclusion applies.

Opportunistic Rescission: When Do Insurers Waive their Right to Rescind an Insurance Policy?

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