Firm News Archives - Page 47 of 76

California Court Holds That Third-Party Plaintiffs Can Bring Claims Against Defendant’s Insurer for Breach of Contract and Bad Faith After a Settlement

In a case of first impression, the California Court of Appeal for the Sixth District held that a plaintiff who sued a defendant and settled the case can later sue the defendant’s insurer directly for breach of contract and bad faith concerning a medical expense provision. This unprecedented decision potentially opens a new avenue for injured plaintiffs to pursue redress directly from insurers for injuries caused by their insureds.

Barnes v. Western Heritage Insurance Co., __ Cal.App.4th __, 2013 Cal. App. LEXIS 480 (June 18, 2013) involves a Plaintiff who was injured in 2001 when a table fell on his back during a recreational program co-sponsored by the Defendant. Plaintiff made a claim against the Defendant. But when Plaintiff subsequently requested payment from Defendant’s insurer, Western Heritage Insurance Company, more than one year after the accident for consultation with a medical specialist, the insurer denied the request under the insured’s Comprehensive General Liability Policy. The insurer asserted that to qualify for medical payment coverage under the applicable policy, Plaintiff had to report a claimed medical expense to the insurer within one year of the accident

Plaintiff settled a separate personal injury lawsuit against the Defendant regarding his medical expenses. However, the insurer was not a party to that lawsuit. Five years later, Plaintiff initiated an action against Defendant’s insurer for breach of contract and breach of the implied covenant of good faith and fair dealing based on the denial of his request for medical payment coverage.

The trial court granted summary judgment in favor of the insurer. Among other things, the trial court ruled Plaintiff’s lawsuit against the insurer was barred by collateral estoppel because he settled his claims in the underlying personal injury action, including any claim for medical expenses; allowing Plaintiff to recover under the medical payment provision of the policy would result in impermissible double recovery; the insurer was not equitably estopped to assert the policy’s one-year deadline as a defense because it had no duty to disclose the deadline to Plaintiff and Plaintiff did not rely to his detriment on any failure to disclose; and certain evidentiary objections asserted by the insurer have merit.

Plaintiff asserted on appeal that the trial court erred. He argued (1) collateral estoppel did not bar this action because the issues raised, litigated and necessarily determined in the personal injury action are different from those raised, litigated and to be determined in this action; (2) permitting him to recover under the medical payment provision would not result in double recovery because the insurer owed him a separate and direct duty under the medical payment provision; (3) the insurer was equitably estopped from asserting the one-year deadline in the policy because it did not inform him of the deadline; and (4) certain evidentiary objections asserted by the insurer should have been overruled.

The Court agreed with Plaintiff that the trial court erred in granting the insurer’s summary judgment. Specifically, the Court concluded: (1) collateral estoppel did not bar the present action because the issues asserted were not litigated or determined in the prior personal injury action; (2) a recovery would not amount to an impermissible double recovery because Plaintiff was now claiming that the insurer breached its direct duty to him under the medical payment provision of the insurance policy, a duty distinct from the obligation the insurer owed the insured Defendant under the liability provision of the policy; and (3) there was a triable issue of material fact regarding whether the insurer was equitably estopped to assert the policy’s one-year deadline as a defense. Accordingly, the Court of Appeal determined that the insurer’s summary judgment motion should not have been granted based on the record and reversed the trial court’s judgment.

The Court’s decision in Barnes is significant in that it found for the first time that an injured plaintiff may pursue a claim against a defendant’s insurer for bad faith and breach of contract under a medical payments provision after settling the underlying lawsuit against the insured. This plaintiffs’ friendly and novel decision expands the ability of injured plaintiffs to recover for harm caused by an insured defendant.

California Court Limits the Enforceability of Contractual Limitation Periods Because the Insurer Failed to Properly Provide ERISA Plan Documents

In an interesting opinion concerning a dispute over long-term disability (“LTD”) insurance benefits due under an ERISA plan, a District Court held that an ERISA administrator cannot rely on a contractual limitation period to defeat an insured’s claim where it failed to provide the insured with sufficient documentation and/or notice of the existence of the limitation period. The decision in Barnett v. California Edison Co. LTD Plan, U.S. Dist. LEXIS 71345 (E.D. Cal. May 20, 2013) emphasizes that administrators of ERISA-governed policies must first discharge their fiduciary duty to fully inform the insured of existing contractual limitation periods before attempting to enforce provisions to defeat a lawsuit initiated by a plan participant.

Barnett involves a Plaintiff who was an employee of Southern California Edison and a participant in Edison’s long-term disability insurance plan (“Plan”). Significantly, the Plan contained a contractual limitation period requiring that a plan participant institute legal action no later than 180 days after a final decision is rendered on his or her appeal. The Plaintiff applied for disability benefits under the Plan and was initially approved. However, Plaintiff’s LTD benefits were terminated following an independent medical examination after the examining physician opined that he was no longer disabled under the terms of the Plan. The Plaintiff appealed the decision twice, and but the administrator upheld the original denial decision both times.

The Plaintiff then filed a lawsuit against the Plan alleging three causes of action. However, the Plaintiff’s complaint was filed after the expiration of the 180-day contractual limitation period. The parties filed cross Motions for Summary Judgment. The Plaintiff sought a declaratory judgment barring the Plan from relying on the 180-day contractual limitations period. The Plan’s opposition and counter-motion argued that the Plaintiff was time barred by the contractual limitation.

The relevant portion of the policy provides:

If your appeal is denied, in whole or in part, you may bring a civil action in federal court. However, no action may be brought . . . until you have exhausted the claim and appeal procedures in this Handbook. Further, no legal action may be brought . . . more than 180 days after the final decision has been rendered . . . on the appeal of your claims for benefits under the terms of the respective plans.

The Court first focused on the issue of the Plan’s fiduciary duty toward the Plaintiff. The Court cited to 29 U.S.C. section 1004(a)(1) and found that the Plan had a fiduciary duty under ERISA to deal with plan participants “fairly and honestly.” The Court then addressed a specific request made by the Plaintiff to the Plan, following the denial of his appeal, for all documents relevant to his claim for benefits including “the plan, with all amendments and the Summary Plan Description and all amendments.”

In response to the Plaintiff’s demand, the Plan’s contract administrator, Jacobs, sent a letter to Plaintiff stating that “enclosed you will find copies of Your Benefits Handbook for the Plan, accompanying plan change notices, and the applicable LTD trust documents. There are no . . . separate documents in relation to the LTD Plan.” However, what Jacobs sent to the Plaintiff was only a thirteen-page excerpt from a much larger Plan document which did not contain the limitation period clause that was in the larger document. As such, not only did the Plan fail to provide Plaintiff with notice of the limitation period clause, but also misrepresented the terms of the Plan by stating that the excerpt constituted the entire Plan document.

The Plan raised two arguments in support of its contention that had not breached its fiduciary duty. First, it argued that the summary Jacobs provided referenced the larger Plan document and thus Plaintiff was on notice that there was a larger Plan document. The Court found this argument to be unpersuasive because, the reference to the larger document does not overcome Jacobs’ blatant misrepresentation that the summary was the complete Plan document. Second, the Plan argued that Plaintiff had access to the complete Plan because it was available online and that a summary of the Plan was distributed to all plan participants. The Court found these arguments to be equally unpersuasive because online access does not overcome Jacobs’ misrepresentation and the fact that a summary was distributed to all plan participants is irrelevant because the summary did not contain the limitation period clause.

Based on all of the above, the Court held that the Plan breached its fiduciary duty by providing the Plaintiff with a thirteen-page summary the Plan document while representing that it was the complete document. As a result, the Court enjoined the Plan from relying on the 180-day contractual limitations period.

The Court’s decision in Barnett is significant in that it increases the burden on insurers and other ERISA administrators to fully disclose and inform insureds of contractual limitation periods and other important provisions in ERISA-governed plans before relying on them to prevent insureds from pursuing and prevailing in legal actions. Moreover, the Court in Barnett emphasized that insurers cannot excuse misrepresentations made by its agents and employees with regard to the contents of a Plan document by asserting that the information is available to the insured elsewhere.

CIGNA Forced to Re-evaluate Long-Term Disability Insurance Claims Handled Between 2008 to 2010, and Set Aside $77 Million to Pay Previously Denied Claims

Following an investigation conducted by the California Department of Insurance via a market conduct examination, as well as insurance regulators from Connecticut, Maine, Massachusetts and Pennsylvania, CIGNA and these states’ insurance regulators, reached a settlement over its improper handling of claims for long-term disability (“LTD”) insurance. This resulted in a Regulatory Settlement Agreement (“Agreement”) between CIGNA and its affiliates and these insurance regulators. The companies involved in the evaluation and settlement include CIGNA Health and Life Insurance Company (formerly known as Alta Health and Life), and Connecticut General Life Insurance Company, Life Insurance Company of North America (collectively, “CIGNA Companies”). In the examinations of CIGNA Companies, insurance department officials found that the CIGNA Companies engaged in numerous claim-handling irregularities, including not giving due consideration to the medical findings of independent physicians, discounting information provided by Social Security Disability decisions and not giving appropriate consideration to Workers’ Compensation records.

In addition to paying $500,000 penalty to the California Department of Insurance and $150,000 to reimburse the department for the cost of ongoing monitoring, the CIGNA Companies are settling aside $77 million for projected payments to policyholders potentially nation-wide whose claims were not handled properly. This money is being set aside for claims improperly handled between January 1, 2008 and December 31, 2010.

In addition to paying the fine and re-evaluating previously denied LTD claims, under the Agreement the companies are required to:

Enhance claim procedures to improve the claims handling process to benefit current and future policyholders.
Establish a remediation program in which the companies’ enhanced claim procedures will be applied to certain previously denied or adversely terminated claims.
Participate in a 24-month monitoring program, including random sampling and ongoing consultation by the five states’ insurance departments.
Undergo a re-examination upon completion of the monitoring period.
Pay fines and administrative fees totaling $1,675,000 to the five lead state states.

The “enhanced claims procedures” that the CIGNA Companies must implement include:

Procedures regarding the weight to be given to awards of Social Security Disability Income benefits;
Enhanced procedures regarding the gathering of medical information and the documentation of conclusions;
Guidelines/or Use of External Medical Resources (i.e., following guidelines when utilizing Independent Medical Examinations or Functional Capacity Evaluations and providing claims personnel and outside professionals (such as consulting physicians) with all available medical, clinical and vocational evidence, including both objective and subjective evidence of impairment);
Ongoing objectives (such as the CIGNA Companies’ claim procedures shall include focus on policies and procedures relating to medical and related evidence, as specifically described in the Agreement and clear and express notice to claimants of the information to be provided by the claimants and the information to be collected by the CIGNA Companies);
Selection of Evaluation Personnel;
Professional Certification; and
Providing Medical, Clinical, and/or Vocational Evidence.

The insurance regulators have implemented procedures to ensure that the CIGNA Companies comply with the “enhanced claims procedures” as described above.

If you had a LTD insurance clam denied by the CIGNA Companies, you may be entitled to a portion of the $77 million. It is irrelevant whether you purchased your own individual policy with your own money or if the disability insurance was provided by your employer (and is thus governed by ERISA). If your claim for disability benefits was denied by CIGNA, you should speak with an attorney as soon as possible to ensure that your claim if properly handled and that CIGNA has followed the special procedures required under the CIGNA Settlement Agreement. The McKennon Law Group PC is currently handling several CIGNA claims on behalf of claimants whose rights were violated when CIGNA’s unfair claims practices, as identified above, resulted in a denial of their disability and life insurance claims. If you would like to discuss your claim with an attorney, please contact us for a free consultation.

Insured May Not File Suit Against Insurers Under Unfair Competition Law Based on Allegedly Wrongful Denial of Benefits to Other Policyholders

In its recent decision in Schwartz v. Provident Life and Accident Insurance Co., __ Cal.App.4th __ (May 21, 2013) the California Court of Appeals held that, in order to have standing to pursue a claim under California’s “Unfair Competition Law” (Bus. & Prof. Code, section 17200 or “UCL”), an insured plaintiff must have suffered injury in fact and cannot rely on alleged wrongful denial of benefits to other policyholders. Although this decision limits the availability of remedies for prospective injuries to an insured, it does leave open the possibility that courts will allow insured to bring claims against insurers under the UCL where the plaintiff has suffered actual harm.

Schwartz involved an insured plaintiff who filed a claim against the issuer of his disability insurance, Provident Life and Accident Insurance Company (“Provident Life”), alleging deceptive claims handling practice in violation of the UCL. In October of 2005, the California Department of Insurance and Provident Life entered into a settlement agreement in which Provident Life agreed to pay $8 million in civil penalty resolving claims that it had wrongfully denied benefits to insured under their disability policy. The Plaintiff in Schwartz brought his claim on behalf of insured under the disability policy who have not been denied benefits and received no benefits from the settlement. The Plaintiff alleged that Provident Life engaged in a “systematic scheme” to deny and terminate disability claims by insured which “effectuated a reduction in coverage across the entire policy holder class.”

The UCL prohibits unfair competition and it defines it as any unlawful, unfair, or fraudulent business act or practice. In 2004, an amendment to the UCL confined standing to plaintiffs who were actually injured by a wrongful defendant’s business practices. Based on these provisions, the District Court granted summary adjudication to Provident Life, finding that the Plaintiff had failed to meet the standing requirement under the UCL because “he has never filed a claim and has never had a claim denied.”

On appeal, the Court of Appeals reaffirmed the District Court’s ruling and found that Plaintiff lacked standing under the UCL which had been “amended to confine standing to those actually injured by a defendant’s business practices.” The Court emphasized that standing to bring a claim under the UCL required proof of lost money or property which may include cases where plaintiff may:

“(1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property that would otherwise have been unnecessary.”

The Court found that Plaintiff only alleged wrongful denial of benefits to other policy holders, but failed to allege that he lost any money or property as a result. The Court also specifically rejected the economic analysis submitted by the Plaintiff to show that denying benefits to some members under a policy plan harms all other members. The Court found that the economic analysis “posits no more than a potential harm to the purported class of policy holder” and that in any case, the insurer had already modified its prior policies in response to the settlement with the California Department of Insurance.

Thus, in denying standing to the Plaintiff in Schwartz, the Court of Appeals reaffirmed the strict standing requirements for UCL claims following the 2004 amendment. Specifically, that it is not sufficient for an insured plaintiff to plead harm to other policyholders because individual monetary or property loss is required for standing.

However, the Court’s holding in Schwartz is perhaps more significant because it seems to suggest that had the Plaintiff alleged an actual denial and resulting loss, he would have been able to bring a claim under the UCL. Such a result would seem to potentially contradict, or at least restrict, the Supreme Court of California’s decision in Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46 Cal.3d 287 (1988) which limited the ability of insureds to bring a cause of action against an insurer under the UCL where that same conduct is prohibited by California’s Unfair Insurance Practices Act, namely, Insurance Code Section 790.03, et seq.. The Schwartz decision appears to follow the recent trend among California Courts to limit the scope of Moradi-Shalal. In fact, a crucial case which is currently before the Supreme Court, Zhang v. California Insurance Co., S178542, could substantially broaden the scope of potential claims available to insured under the UCL. Significantly, unlike the Plaintiff in Schwartz, the plaintiff in Zhang did allege that she personally suffer actual harm as a result of the insurer’s alleged wrongful actions. Please see our in-depth analysis of the oral arguments in the Zhang, and the potential implication of the decision. A decision in the Zhang case is 90 days of the oral argument on May 8.

Recovery of Overpayments Under ERISA

Keith Parker, an excellent mediator who specializes in mediating ERISA matters, authored the following article on “Recovery of Overpayments Under ERISA” We at the McKennon Law Group PC are happy to recommend this outstanding article for your reading. We include the entire article below with permission from Mr. Parker.

Section 1132(a)(3)(B) of ERISA authorizes participants, beneficiaries and/or fiduciaries to bring civil actions seeking “appropriate equitable relief” to enforce the provisions of an ERISA plan. Just what constitutes “appropriate equitable relief” has challenged courts and practitioners, in large part because the Supreme Court has interpreted that language to incorporate the “archaic” (Justice Ginsburg’s word) and “obsolete” (Justice Steven’s word) distinction between relief available in equity and that available in law at the time of the so-called divided bench. While most members of the bar (academics and certain members of the Supreme Court excepted) have no experience with, or interest in, the distinction in this day of the unified bench, the distinction is part of the Federal common law of ERISA and, so, must be considered when dealing with claims for equitable relief under ERISA.

The Ninth Circuit recently considered whether an action by a plan fiduciary to recover an overpayment of disability benefits resulting from an award of Social Security Disability Income (“SSDI”) benefits sought “appropriate equitable relief” under ERISA. Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012). The facts presented were typical of those often seen in disability cases: Bilyeu began receiving benefits under a long-term disability plan which provided that her benefits would be reduced by other income, including SSDI benefits, and that permitted the plan fiduciary to immediately reduce her benefits by an estimate of her potential SSDI benefits. However, the plan fiduciary agreed not to reduce Bilyeu’s benefits when she agreed in writing to repay any overpayment in plan benefits that might result if she received an award of SSDI benefits. The plan fiduciary subsequently terminated Bilyeu’s plan benefits; thereafter Bilyeu received an award of SSDI benefits resulting in an overpayment which she refused to repay. When Bilyeu brought an action under ERISA for improper termination of her benefits, the plan fiduciary filed a counterclaim under Section 1132(a)(3)(B) to recover the amount of the overpayment. Id. at 1086-88, 1090-91.

The Ninth Circuit relied on two Supreme Court decisions – Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2008) and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) – interpreting Section 1132(a)(3)(B) to identify the elements necessary to state a claim for “appropriate equitable relief” under ERISA. In both those cases the plan participants suffered injuries in automobile accidents and their group medical plans paid for the participants’ subsequent medical care. In both cases the participants settled actions against third-parties responsible for the accidents and their group medical plans then brought Section 1132(a)(3)(B) actions against the participants seeking to recover the amounts paid for their medical care pursuant to provisions in the plans requiring participants to reimburse the plans from amounts recovered from third-parties responsible for their injuries. Sereboff, 547 U.S. at 359-60; Great-West, 534 U.S. at 207-09. The difference in the cases arose from the manner in which the participants had handled the proceeds of the settlements:

In Great-West, the participant carefully structured the settlement such that the proceeds never came into her possession, but rather were placed directly into a special needs trust and her attorney’s trust account. The Supreme Court held that the plan’s claim was not one typically available in equity because the plan had failed to identify a specific fund in the possession of the participant to which an equitable lien attached; the Supreme Court characterized the plan’s claim as one seeking a judgment payable from the participant’s general assets, a garden variety claim at law. Great-West, 534 U.S. at 207-08, 211-14. In Sereboff, on the other hand, the participants took possession of the settlement proceeds and, when the plan demanded reimbursement of amounts paid on their behalf, the participants agreed to set aside a portion of the settlement equal to the amount at issue in a separate investment account. On these facts the Supreme Court held that the plan’s claim was one typically available in equity because the plan sought to recover a specific fund in the possession of the participants to which an equitable lien attached. Sereboff, 547 U.S. at 362-66.

The Ninth Circuit identified three elements necessary to state a claim for “appropriate equitable relief” under ERISA in this context: (1) A promise by the participant to reimburse the disability plan for excess benefits paid upon the receipt of other income such as SSDI benefits; (2) the promise must identify a specific fund, distinct from the participant’s general assets, from which the plan will be reimbursed; and (3) the specific fund must be in the possession of the participant. Bilyeu, 683 F.3d at 1092-93. The plan fiduciary’s claim in Bilyeu met the first element, but not the second and third elements:

At the outset, the Ninth Circuit expressed concern that the specific fund identified by the plan fiduciary – the overpaid portion of the periodic disability benefits paid to the participant – was not, in fact, a distinct or separate fund, but rather was an undifferentiated component of a larger fund – the aggregate disability benefits paid to the participant. Id. at 1093-94. Although the Ninth Circuit did not fully develop its position, its concern seems consistent with the reasoning of the Supreme Court: If, as seems likely, the disability benefits were comingled with the general assets of the participant upon receipt, the plan fiduciary’s claim was essentially one for a judgment for a portion of the general assets of the participant, a quintessential claim at law.

A more compelling argument (in my view) that the plan fiduciary’s claim in Bilyeu failed to meet the specific fund element is that at the time the periodic disability payments were received by the participant, she did not (and could not) know whether an overpayment would occur and, if so, the amount of the overpayment because SSDI benefits had not been awarded. In other words, when the periodic disability benefits were received and comingled with the general assets of the participant, no specific portion of those benefits could be identified as subject to an equitable lien.

The Ninth Circuit did not, however, have to make a definitive ruling on the second element because it found that the plan fiduciary’s claim clearly failed to meet third element – the participant had spent her disability benefits long before she received the SSDI benefits and the plan fiduciary demanded reimbursement of the overpayment and, so, no longer had possession of the specific fund. That being the case, the Ninth Circuit concluded that the plan fiduciary was simply seeking a judgment payable from the general assets of the participant – a claim at law. In so holding, the Ninth Circuit acknowledged contrary precedent from other circuits. Id.at 1094. Review of those cases, however, suggests that the Ninth Circuit’s decision more closely reflects the reasoning of the Supreme Court:

In Funk v. Cigna Group Ins., 648 F.3d 182 (3d Cir. 2011), for example, the Third Circuit held that an equitable lien by agreement attaches to the “specific fund” as soon as it is received by the participant. At that moment, according to the Third Circuit, the participant becomes a constructive trustee of the fund and may be compelled in equity to repay it even if he has spent or otherwise converted the fund. Id. at 194-95. The flaw in the Third Circuit’s analysis is that the “specific fund” it identified as being received by the participant consisted of the SSDI benefits. As the Ninth Circuit correctly observed, the Social Security Act prohibits recipients from assigning SSDI benefits or creditors from attaching liens to such benefits. Bilyeu, 683 F.3d at 1093-94. And, as discussed above, when the disability benefits (as opposed to the SSDI benefits) were received by the participant, no overpayment existed and, so, no equitable lien could attach to any specific portion of those benefits.

Likewise in Cusson v. Liberty Life Assurance Co., 592 F.3d 215 (1st Cir. 2010), the First Circuit concluded that the reimbursement agreement targeted “specific funds for recovery” and “put [the participant] on notice” that she would be required to repay the amount that she “might get from Social Security.” Id. at 231. The problem, however, remains the same – while the participant was receiving her disability benefits, the amount of a potential overpayment, if any, was entirely speculative and, so, no specific fund existed to which an equitable lien attached. These decisions, and others cited by the Ninth Circuit, while perhaps reaching an equitable result – after all, the participant did agree to reimburse any overpayments resulting from her receipt of SSDI benefits – are not consistent with ERISA because the plan fiduciaries were not seeking relief typically available in equity.

In sum, the Ninth Circuit held that the plan fiduciary had no claim under ERISA to recover the overpayment. And (although the Ninth Circuit did not reach the issue) because the plan fiduciary’s state law claims were likely preempted by ERISA, the plan fiduciary was left without a remedy to recover the overpayment. This result is not surprising in light of similar results under ERISA in far more compelling circumstances. See, e.g., Bast v. Prudential Ins. Co., 150 F.3d 1003 (9th Cir. 1998)(no remedy for participant in ERISA medical plan for delays in approval of potentially life saving treatment, allegedly resulting in her death).

Is the lack of a remedy to recover overpayments a cause for concern? After all, the typical group disability plan gives the plan fiduciary the authority to reduce a participant’s benefits by an estimate of potential SSDI benefits, and the lack of a remedy to recover overpayments might cause plan fiduciaries to stop offering participants the option of signing a reimbursement agreement. If such a practice became widespread, participants would certainly suffer as they would not have access to their full disability benefits for the period necessary (often lengthy) to receive a final decision on an award of SSDI benefits.

Another consideration, however, is likely (in my view) to limit the frequency that plan fiduciaries elect to reduce disability benefits by an estimate of potential SSDI benefits. Plan fiduciaries are, after all, fiduciaries. As such, before making a decision to offset an estimate of SSDI benefits, plan fiduciaries presumably will be required to engage in some analysis of whether the participant is, in fact, eligible for SSDI benefits. Such an analysis would require plan fiduciaries to assess whether the participant was disabled under Social Security Act’s broad any occupation standard. Concluding that a participant is likely entitled to SSDI benefits arguably would limit the plan fiduciary’s flexibility to reach a contrary any occupation decision under the disability plan. (Plan fiduciaries currently avoid this predicament by requiring participants to apply for SSDI benefits (and, often times, providing representation to do so), but leaving the actual determination on the merits to the Social Security Administration.) As a result, plan fiduciaries may well decide to accept the risk of the occasional unrecoverable overpayment in lieu of reducing their flexibility to conclude that a participant is not disabled under the any occupation standard.

McKennon Law Group Wins a Wrongful Foreclosure Case

On May 15, 2013, a Santa Monica jury awarded $10,225,000 against Chase Manhattan Bank in Wrongful Foreclosure case in which the McKennon Law Group PC represented Plaintiff. Robert McKennon and Scott Calvert represented the Plaintiff during the firm’s representation of the Plaintiff before the trial of the case.

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