Exhaustion of Remedies and the Failure to Raise an Argument on an ERISA Appeal: What Happens if an ERISA Claimant Misses a Key Factual or Legal Argument on Appeal?

Posted in: Administrative Record, Disability Insurance, ERISA, Insurance Litigation Blog November 25, 2019

Under insurance policies governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), when an insurer denies a person’s claim for life insurance benefits, short-term-disability benefits or long-term-disability benefits, the beneficiary must request that the insurance company review the denial or termination if they intend to sue the insurer to obtain their benefits.  Courts refer to this review as an “administrative appeal” and the obligation to pursue that appeal as the duty to exhaust administrative remedies.  Courts have universally concluded that they “have the authority to enforce the exhaustion requirement in suits under ERISA, and that as a matter of sound policy they should usually do so.”  Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980).  The …

Read More
0

Los Angeles Daily Journal Publishes Article on November 19, 2019 by Robert McKennon Entitled “Leveling the Field Between Insurers and Disability Claimants”

Posted in: Disability Insurance, Disability Insurance News, ERISA, Insurance Litigation Blog, Legal Articles, News November 20, 2019

In the November 19, 2019 issue of the Los Angeles Daily Journal, the Daily Journal published an article written by the McKennon Law Group PC’s Robert J. McKennon.  The article addresses a previous 2009 Daily Journal investigation that revealed insurers’ regular practice of improperly denying claims.  Since 2009, recent regulations promulgated by the Department of Labor and recent court opinions have helped even the playing field for claimants.  A full and fair review of a claim for benefits is required by statute and regulation, and helps prevent insurers from illicit claim denials as detailed in the Daily Journal investigation.  However, it remains to be seen whether these recent regulations and court decisions will ultimately have the effect of evening the …

Read More
0

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Seven: Wrongful Insurer Practices and Full and Fair Review Requirement

Posted in: Disability Insurance, ERISA, Insurance Litigation Blog November 12, 2019

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim, to handling a claim denial and through preparing a case for litigation.  In Part Seven of this series, we discuss the full and fair review required under the Employee Retirement Income Security Act (“ERISA”), in contrast with the usual practices and power imbalance insurers employ to deny claims.  Our focus in this article will be mostly on disability insurance claim denials.

Every year, millions of Americans seeking to buy a safety net for their middle-class lifestyles enroll in individual or group disability …

Read More
0

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Six: Independent Medical Evaluations and Peer Reviews

Posted in: Disability Insurance, ERISA, Insurance Litigation Blog September 26, 2019

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim, to handling a claim denial and through preparing a case for litigation.  In Part Six of this series, we discuss Independent Medical Evaluations and Peer Reviews.  Our focus in this article will be mostly on disability insurance claim denials.

When an insurer examines a disability claim or appeal, it has the medical records examined by medical evaluators, typically a nurse or doctor.  In theory, this allows the insurer to determine whether the claim has merit.  In practice, it is typically a way …

Read More
0

Los Angeles Daily Journal Publishes Article on August 28, 2019 by Robert McKennon Entitled “Ruling Could Send Shock Waves Through ERISA Claims Industry”

Posted in: Accidental Death or Dismemberment, Disability Insurance, Disability Insurance News, ERISA, Insurance Litigation Blog, Legal Articles, Life Insurance, News, Retirement Plans September 04, 2019

In the August 28, 2019 issue of the Los Angeles Daily Journal, the Daily Journal published an article written by the McKennon Law Group PC’s Robert J. McKennon.  The article addresses a recent case by the Ninth Circuit Court of Appeals, Dorman v. Charles Schwab, which overruled the Ninth Circuit precedent Amaro v. Continental Can Co. and enforced an arbitration clause in a pension plan on the basis that Supreme Court precedent had impliedly overruled its opinion in Amaro.  Given the expansive reading of arbitration clauses by the Supreme Court and now the Ninth Circuit, it is likely that more ERISA pension claims will be litigated on an individualized basis and will be litigated in arbitration proceedings.

Ruling

Read More
0

Speca v. Aetna: “Rush to Judgment” in Just 14 Days Violates ERISA Rights to Full and Fair Review and Appeal

Posted in: Disability Insurance, ERISA, Insurance Litigation Blog August 22, 2019

ERISA guarantees claimants a “full and fair review” as well as an appeal of any denial by the insurance company.  Can a disability claims insurer deny a claim too quickly and thus violate its duty to provide a full and fair review?  A recent decision answered “yes” to this question.  In Speca v. Aetna Life Ins. Co., 2019 WL 3754210 (D. Nev. August 8, 2019), the court ruled that Aetna Life Insurance Company (“Aetna”) did not provide a “full and fair review” and effectively cut off any meaningful access to an appeal when it denied a claim in just 14 days (without even waiting to receive any medical records).

Plaintiff, Paul Speca, worked at Home Depot until November 6, 2015 …

Read More
0

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Four: Denial of an ERISA Disability Claim or Appeal

Posted in: Disability Insurance, ERISA, Insurance Litigation Blog August 16, 2019

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim, to handling a claim denial and through preparing a case for litigation.  In Part Four of this series, we discuss ERISA claim denials.  Our focus in this article will be mostly on disability insurance claim denials.

When denying a claim, an insurer is required to provide a written explanation of the basis of its denial.  Under Section 503 of ERISA, “every employee benefit plan shall . . . provide adequate notice in writing to any participant or beneficiary whose claim for benefits …

Read More
0

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Two: Filing an ERISA Disability Claim

Posted in: Disability Insurance, ERISA, Insurance Litigation Blog August 13, 2019

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim, to handling a claim denial and through preparing a case for litigation.  In Part Two of this series, our focus in this article will be on the filing of a claim.

Often, clients contact our firm before they have filed any life, health, accidental death and dismemberment and disability claim for benefits with their insurer.  In these circumstances, we can assist them on an hourly or contingency fee basis.  Our firm is able to put the client in the best position possible …

Read More
0

A “Three-Year” Limitations Period in a Disability Policy Can Extend California’s Two-Year Statutory Limitations Period for Insurance Bad Faith

Posted in: Disability Insurance, Health Insurance, Insurance Litigation Blog, Legal Articles August 06, 2019

Life, health and disability insurers are always looking for ways to deny insurance claims. When they do so unreasonably, insured policyholders may be able to sue them for insurance bad faith under California law. Count on insurers to argue everything they can to defeat a bad-faith claim, including asserting the statute of limitations for bad-faith claims. Life, health and disability insurance plaintiff attorneys must remain current as to changes in the law so they can defeat these insurance company tactics. One notable question they must answer is this: Can a disability policy provision setting forth the timing of a lawsuit against the insurer “extend” California state tort law (e.g., statute of limitations to three years) from the statutory two-year limitations …

Read More
0

Cassim v. Allstate Insurance: Attorney’s Fees in Contingency-Fee “Bad Faith” Cases

Posted in: Attorneys' Fees, Bad Faith, Disability Insurance, ERISA, Health Insurance, Insurance Litigation Blog, Legal Articles July 26, 2019

Since 2004, when the California Supreme Court ruled that a “portion” of contingency attorney’s fees are recoverable in bad-faith insurance cases, plaintiffs and their lawyers have been able to recover attorney’s fees based in part on the specific terms of the contingency-fee retainer agreement.  For starters, in order to recover attorney’s fees in these actions, a policyholder must prove that (1) contractual benefits were withheld in bad faith, and (2) reasonable fees were incurred by the policyholder to recover those benefits.  However, any attorney’s fees incurred merely to prove the alleged “bad faith” claims are not recoverable at all; only fees incurred to prove actual coverage are recoverable.  Cassim v. Allstate Insurance, 33 Cal.4th 780, 811 (2004).

In Cassim

Read More
0