Firm News Archives - Page 57 of 76

Insurers May Intervene and Assert the Same Rights as Their Insured’s to Contest Both Liability and Damages

Under certain circumstances, an insurer has the right to intervene in a case against its insured to protect its own rights and to avoid harm to the insurer. These circumstances usually involve cases where an insured is either prevented from appearing and defending, or simply chooses not to and a default is taken against the insured. The recent case Western Heritage Insurance Company v. Superior Court, __ Cal. App. 4^th __ (Oct. 11, 2011), addresses the second set of circumstances, and provides an examination of California intervention law and holds that an insurer has the right to intervene in a case and take over in litigation if an insured is not defending the action, and may contest both liability and damages while doing so.

In Western Heritage, the insurer Western Heritage defended its insured and its insured’s employee under a reservation of rights following the employee’s automobile accident during the course of employment. It was revealed that the employee was not participating in her defense and that Western Heritage had filed an answer on her behalf without her participation or consent. As a result, the answer was stricken and a default was entered. Western Heritage therefore filed a complaint in intervention to protect its own interests. The trial court granted the intervention, but ruled that Western Heritage could only dispute damages, not the liability of the employee.

Western Heritage filed a petition for writ of mandate and the court of appeals granted the requested writ relief and held that Western Heritage had “the right to assert, on its own behalf, all defenses that otherwise would be available to the insured parties whether as to liability or damages.” The appellate court explained its reasoning for allowing an insurer to fully defend its own interests:

Indeed, there would be no purpose in allowing an insurer to intervene in order to protect its own interests but then limit the scope of the insurer’s defense to those issues to which its insured, because of the default, is limited to pursuing…. The entire purpose of the intervention is to permit the insurer to pursue its own interests, which necessarily include the litigation of defenses its insured is procedurally barred from pursuing.

Thus, an insurer has the right to intervene in a case when an insured elects to abandon his own defense of claims asserted against the insured, and may assert the same defenses to liability and damages as the insured. With this holding, the court seems to indicate that an insurer retains the right to defend its own interests equal to its insured’s interests when defending its insured. This may serve as a cautionary tale when an insured seeks to assert defenses that are not aligned with the interests of the insurer.

California Bans the Inclusion of Policy Provisions Giving Insurance Companies Discretionary Authority to Decide Claims

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

New California Law Requires That Insurers and Agents Verify that an Annuity is Suitable for the Consumer

California Governor Jerry Brown recently signed a new law that will provide increased protection to seniors and other consumers who are interested in purchasing an annuity. AB 689, which was sponsored by the California Department of Insurance and authored by Assembly Budget Committee Chair Bob Blumenfield (D-San Fernando Valley), requires that insurers verify that an annuity purchase is suitable and appropriate for the consumer based on an evaluation of his or her age, income, financial objectives and ten other factors. The bill was unanimously passed by both the state Senate and the state Assembly.

Lawmakers felt that additional protection was necessary because many consumers have only a vague understanding of the conditions and risks associated with the purchase of an annuity. Assembly Member Blumenfield said that another reason for the new law is that annuities are often sold to seniors, who sometimes do not understand “that their money will be unavailable to them for years.” In addition, annuities are typically very expensive in the short term, a fact which is not always properly conveyed to consumers. Finally, as noted by Blumenfield, the sale of annuities is often a “breeding ground for fraud.”

Before the passage of the new law (located in the California Insurance Code, beginning at section 10509.910), agents and insurers were required to fulfill only limited requirements when selling or replacing life insurance policies and annuities. Now, insurance companies and agents must comply with very specific requirements when recommending that a consumer purchase, exchange or replace an annuity. Specifically, after evaluating 13 different suitability factors (detailed in section 10509.914(i)), an insurance company and agent can only sell an annuity if there are “reasonable grounds for believing that the [annuity] is suitable for the consumer.” See Insurance Code section 10509.915(a). The bill also requires that an insurance agent receive Insurance Commissioner-approved training before he or she can sell annuities.

McKennon Law Group PC has several cases dealing with unsuitable annuities. More often than not, annuities are not properly sold and we often find that insurance agents and insurers often do not make truthful representations about them. Although this law should help stem the tide of unsuitable annuity sales, problem annuity sales will continue to plague the insurance industry for a long time to come.

Ninth Circuit Rules that California’s Mental Parity Act Requires Health Insurers to Pay for Certain “Medically Necessary” Treatment for Mental Illnesses

In an important decision, the Ninth Circuit Court of Appeals ruled that California’s Mental Health Parity Act (“Parity Act” ) requires that health insurers cover certain medically necessary treatment for certain mental illnesses, even if the insurance policy explicitly excludes such coverage. In Harlick v. Blue Shield of Calif., __ F.3d __ (9th Cir. August 26, 2011), the Ninth Circuit reversed the district court’s granting of Blue Shield of California’s motion of summary judgment, and held that under the Parity Act, Blue Shield was required to provide medically necessary health insurance benefits for mental illnesses on par with the treatment for physical illness covered under Harlick’s ERISA-governed health insurance plan.

The California legislature enacted the Parity Act in 1999 after finding that “[m]ost private health insurance policies provide coverage for mental illness at levels far below coverage for other physical illnesses.” 1999 Cal. Legis. Serv. ch. 534 (A.B.88), § 1 (West). The legislature further found that coverage limitations resulted in inadequate treatment of mental illnesses, causing “relapse and untold suffering” for people with treatable mental illnesses, as well as increases in homelessness, increases in crime and significant demands on the state budget. Id. Accordingly, plans that come within the scope of the Act – including the ERISA-governed plan established by Harlick’s employer – must cover all “medically necessary” treatment for nine listed mental illnesses (including anorexia nervosa), but can apply the same financial limits – such as yearly deductibles and lifetime benefits – that are applied to coverage for physical illnesses.

In March 2006, Jeanene Harlick (“Harlick”) was advised by her doctors to seek treatment for her anorexia nervosa at a residential treatment facility. After Harlick and her doctors concluded that none of the in-network treatment facilities suggested by Blue Shield could provide effective treatment, Harlick registered at Castlewood Treatment Center, a facility outside of the state and outside of Blue Shield’s treatment network. Harlick was at Castlewood, a residential treatment facility, for more than 8 months. However, Blue Shield refused to pay for Harlick’s care, because the plan specifically stated that “residential care” was not covered.

Harlick sued Blue Shield, but after the parties stipulated that Blue Shield’s decision would be reviewed under the abuse of discretion standard of review, the district court granted Blue Shield’s motion for summary judgment.

In reviewing Harlick’s case, the Ninth Circuit evaluated whether Blue Shield abused its discretion in denying Harlick’s request for coverage for her treatment at Castlewood. In ERISA cases, if there is a conflict of interest (i.e., same entity pays benefits and makes the coverage decision), than the administrator’s review and claim decision is “tempered by skepticism,” even if it is reviewed under the abuse of discretion standard. Here, while the Court did not find that Blue Shield abused its discretion in denying Harlick’s claim, it did find that Blue Shield was responsible for Harlick’s residential care, based upon the Parity Act. The Ninth Circuit stated:

Harlick’s Plan does not itself require that Blue Shield pay for residential care at Castlewood for her anorexia nervosa. However, California’s Mental Health Parity Act provides that Blue Shield “shall provide coverage for the diagnosis and medically necessary treatment” of “severe mental illness” including anorexia nervosa. Blue Shield is foreclosed from asserting that Harlick’s residential care at Castlewood was not medically necessary. We therefore conclude that Blue Shield is obligated under the Parity Act to pay for Harlick’s residential care at Castlewood, subject to the same financial terms and conditions it imposes on coverage for physical illness.

The Court then turned to the question of whether Harlick’s treatment was medically necessary. Blue Shield did not dispute that treatment at Castlewood was medically necessary until supplemental briefing filed after oral argument. Blue Shield argued that it should be allowed to reopen its administrative process in order to determine whether Harlick’s residential care was medically necessary. The Court explained an ERISA administrator’s obligations:

ERISA and its implementing regulations are undermined ‘where plan administrators have available sufficient information to assert a basis for denial of benefits, but choose to hold that basis in reserve rather than communicate it to the beneficiary.’ Mitchell v. CB Richard Ellis Long Term Disability Plan, 611 F.3d 1192, 1199 n.2 (9th Cir. 2010) (quoting Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 129 (1st Cir. 2004)). Claimants should not be ‘sandbagged by a rationale the plan administrator adduces only after the suit has commenced.’ Mitchell, 611 F.3d at 1199 n.2 (quoting Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1104 (9th Cir. 2003)) (some internal quotation marks omitted). Just as claimants should present all of their arguments for granting the claim to the insurer during the administrative process, an insurer should tell the claimant all of its reasons for denying the claim. Cf Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th Cir. 1995).

During the administrative process, Blue Shield never said that it was denying the claim because treatment at Castlewood was not medically necessary.

The Court therefore concluded that by not including as a reason for denial of the claim that the treatment was not medically necessary, Blue Shield waived this reason to deny the claim:

Blue Shield has discretion to determine whether treatment is medically necessary during the administrative review process. But Blue Shield had to tell Harlick the “specific reasons for the denial” – not just one reason, if there was more than one – and provide a “full and fair review” of the denial. 29 U.S.C. § 1133 (emphasis added). Blue Shield told both Harlick and her mother, as well as the DMHC, that medical necessity was not the reason for its denial of Harlick’s claim. It cannot now bring out a reason that it has “held in reserve” and commence a new round of review. See Mitchell, 611 F.3d at 1199 n.2.

Thus, even if it is expressly excluded from a plan, a California insurer is now obligated to ensure that coverage for certain medically necessary treatment for mental illness is on par with the coverage provided for necessary treatment for physical illnesses. This ruling will thus have significant application to coverage for mental illnesses, especially autism.

Failure by ERISA Administrator to Comply With Its Duties of Proper Notification and Review May Result in Its Failure to Assert the Statute of Limitations

Recently, the Ninth Circuit Court of Appeals ruled that an ERISA administrator must make a “clear and continuing repudiation” of a claim, in compliance with its duties of proper notification under ERISA, in order for a claim to “accrue” and thus start the statute of limitations clock on filing a lawsuit. In Withrow v. Basch Halsey Stuart Shield, Inc. Salary Protection Plan, __ F.3d. __ (9th Cir. 2011), the United States Court of Appeals for the Ninth Circuit held that a telephone call and resulting voicemail message made by the administrator, which was otherwise undocumented, did not constitute proper notice to a claimant that a benefits decision constituted an irrevocable and final determination. The court explained that such a notification was deficient, and therefore cannot serve as the basis for an argument that a complaint was untimely filed.

As presented by the Ninth Circuit, the facts of Valerie Withrow’s lawsuit are fairly straightforward. In 1979, Withrow began working at Bache Halsey. In December 1996, after periodically missing work due to a variety of disabling conditions, Withrow became permanently disabled and began receiving benefits from Reliance Standard Life Insurance Company (“Reliance Standard”), the claims administrator for the Bache Halsey disability insurance plan offered to employees. In 1987, Withrow (who continues, to this day, to receive disability benefits) contacted Reliance Standard and asserted that she should be receiving $5,000 per month, the maximum allowed under the plan, rather than the $3,950 she was receiving. At that time, Reliance Standard attempted to explain to Withrow how her benefits were calculated and why $3,950 was the proper monthly benefit amount. In 1990, Withrow again contacted Reliance Standard to discuss her monthly benefit amount, but was again advised, via a message left on her answering machine, that the determination of her monthly benefit amount was correct.

For 12 years, there was no communication between Reliance Standard and Withrow, other than Withrow’s monthly receipt of her disability check. Then, in 2002, Withrow contacted a benefits manager at Bache Halsey (which by then had changed its name to Prudential Securities) to discuss her concerns that she was being underpaid. After a series of communications with Prudential Securities and Reliance Standard, including a formal denial of Withrow’s claim and her subsequent appeal, in January 2004, Reliance Standard left a message for Withrow’s attorney indicating that Reliance Standard was upholding its decision that $3,950 was the proper monthly benefit amount.

In 2006, Withrow initiated a lawsuit against the Plan, however the District Court granted the Plan’s motion to dismiss based upon a statute of limitations defense. The Ninth Circuit began its analysis by indicating that there were two issues presented by the appeal:

There are two parts to the determination of whether a claimant’s ERISA action is timely filed: we must determine first whether the action is barred by the applicable statute of limitations, and second whether the action is contractually barred by the limitations provision in the policy. See Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir. 2000) (en banc).

First, citing to Wetzel, the Ninth Circuit explained that “district court must apply the state statute of limitations that is most analogous to an ERISA benefits recovery program,” and that in this ERISA case “California’s four-year statute of limitations for contract disputes applies.” Next, the Ninth Circuit explained that federal law governs when an ERISA cause of action accrues and triggers the start of the four-year clock. Under Wetzel, an ERISA cause of action accrues “either at the time benefits are actually denied, or when the insured has reason to know the claim as been denied.” Citing Wise v. Verizon Communications, Inc., 600 F.3d 1180, 1188 (9th Cir. 2010), the Ninth Circuit explained that the phrase “reason to know” means when the plan communicates a “clear and continuing repudiation of a claimant’s rights under a plan such that the claimant could not have reasonably believe but that his or her benefits had been finally denied.”

After finding that Withrow’s claim was “actually denied” in 2004 when her attorney was informed that Reliance Standard was standing by its original determination, the Court turned to when Withrow had a “reason to know” her claim was denied. While Reliance Standard argued, and the District Court agreed, that Withrow had a reason to know that her claim was denied in 1990, the Ninth Circuit disagreed. Specifically, the Ninth Circuit found that the events of 1990 were unclear, and Reliance Standard’s records failed to provide clear evidence of who made the call in 1990, what exactly was said and whether Withrow was provided with guidance as to how to submit her claim for review. Thus, there was insufficient evidence to support Reliance Standard’s position that it communicated a “clear and continuing repudiation” of Withrow’s claim. Accordingly, Withrow’s claim did not accrue in 1990, and her lawsuit was timely filed.

Finally, the Court turned to the issue of whether Withrow’s claim was time-barred by the plan’s internal statute of limitations period. The plan required that legal actions must be initiated with three years of “the time written proof of loss is required.” After holding that “contract limitation provisions in benefit policies still have force independent of ERISA in long-term disability cases,” the Ninth Circuit held that such provisions are “meaningless as applied to disputes over the proper calculation of the amount of monthly benefits, as opposed to disputes over whether the applicant is entitled to benefits at all.”

With this opinion, the Ninth Circuit is again informing ERISA administrators that, when informing a claimant that a claim for benefits is being denied, that message must be presented in such a manner that there can be no question that the decision is final and binding. If the administrator fails to meet this standard, it will be barred from relying on the applicable statute of limitations as a defense to any lawsuit.

California Courts Rule Punitive Damages Award of 16 to 1 Ratio Not Unconstitutionally Excessive.

In a somewhat surprising recent decision, the California Court of Appeal upheld a punitive damages award that carried a ratio of more than 16 to 1 based on the compensatory damages awarded by the jury. The ruling was surprising considering the United States Supreme Courts’ recent holding that “grossly excessive” punitive damages awards offend due process under the Fourteenth Amendment, and stating that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). California courts have once again sent a clear message of willingness to uphold just punitive damages awards under appropriate circumstances, applying a balancing test as opposed to a bright line ratio approach.

The court in Bullock v. Philip Morris USA, Inc., 2011 Cal. App. LEXIS 1081 (Cal. App. 2d Dist., 2011), affirmed an award of $13.8 million in punitive damages and $850,000 in compensatory damages against cigarette manufacturer Philip Morris. The court discussed the impact of the due process limitation on punitive damages, and analyzed the award in the context of the three guideposts for determining whether a punitive damages award is excessive under State Farm: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Bullock v. Philip Morris USA, 2011 Cal. App. Lexis 1081, *22-23 (quoting State Farm, supra, 538 U.S. at 418.) The court also took into consideration the defendant’s financial condition, which has previously been recognized by California courts as a permissible consideration under the due process clause as necessary to further the state’s legitimate interests in punishment and deterrence. Id. at 22 (citing Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal.4th 1159, 1185–1186 (2005).) After balancing the competing interests as to each factor, the court concluded that the award was justified, but cautioned slightly against use of this holding to establish a presumption of appropriateness for other cases:

We believe that the extreme reprehensibility of Philip Morris’s misconduct, including the vast scale and profitability of its course of misconduct, and its financial condition justify the $13.8 million punitive damages award against Philip Morris. Our conclusion is the same regardless of whether the ratio of 16 to one can be said to significantly exceed a single-digit ratio, so we need not decide that question. We do not mean to suggest that 16 to one would be an appropriate ratio in another case involving extreme reprehensibility or to establish any kind of presumption, but merely conclude, based on the facts in this case, that the $13.8 million punitive damages award is reasonable, not arbitrary, and does not offend due process. Id. at 58.

However, in a footnote, the court noted that “‘[T]he presumption of unconstitutionality applies only to awards exceeding the single-digit level ‘to a significant degree.’ (State Farm, supra, 538 U.S. at p. 425.)’” (Simon, supra, 35 Cal.4th at p. 1182, fn. 7.) Thus, the court sent a clear message that it did not believe that a 16 to 1 ratio exceeded the single-digit level to a significant degree, and left the door open for other California courts to allow punitive damages awards above the single-digit ratio.

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