The November 27, 2015 edition of the Los Angeles Daily Journal features an article written by Robert McKennon and Joseph McMillen of the McKennon Law Group entitled: “When is Insurer’s Delay a Breach?.” In the article, Mr. McKennon and Mr. McMillen discuss an important decision from the U.S. District Court for the Northern District of California, Travelers Indem. Co. of Connecticut v. Centex Homes, 11-CV-03638-SC (N.D. Cal., filed Oct. 8, 2015) in which the court wrestled with the issue of how much delay is too much before an insurer crosses the line and breaches its defense duty. In other words: What is the point at which an insurer’s delay in defending amounts to a breach of its duty to defend?
Mistreated by Your Insurer? Insurers May Not Be Able to Hide Behind ERISA Preemption to Defeat Claims for Intentional Infliction of Emotional Distress
Insureds obligingly pay premiums on their life, health and disability insurance policies and dutifully provide updated information upon request by their insurers, but often do not enjoy the same courtesy when they file an insurance claim. In extreme cases, antagonistic insurers engage in a host of tactics, including appointing claims examiners who refuse to return phone calls, conducting intrusive surveillance, accusing insureds of filing false claims or inundating the insured’s employer and treating doctors with document demands—only to deny the insured’s claim. Astonished by this treatment, many insureds wonder if they can sue them for emotional distress damages. The short answer is yes—but there are hurdles.
California law imposes in every insurance contract a covenant of good faith and fair dealing, and a wrongful denial may be in “bad faith.” The bad faith claim potentially allows the insured to seek emotional distress damages. However, there may be another approach: sue the insurer for intentional infliction of emotional distress. To succeed on such a claim, insureds must establish: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
Policies governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) present additional hurdles. First, Section 514(a) provides that the ERISA federal statutes “supersede[s] any and all State laws insofar as they may … relate to any employee benefit plan.” Second, ERISA does not contain a comparable statutory recourse for bad faith by an insurer. Accordingly, insurers routinely defeat emotional distress claims and insurance bad faith claims by asserting that ERISA preempts these state law claims, as such claims directly relate to the insured’s denial of benefits. However, a relatively unsung line of cases show that in cases where the insurer’s actions are so far removed from the claims handling function, an insured may escape ERISA preemption and seek damages typically available under California, but not federal, law.
In his recent Order, United States District Judge William Alsup ruled that ERISA does not preempt (or, in other words, defeat) an insured’s claim for intentional infliction of emotional distress in certain cases, even though the insurance policy is otherwise governed by ERISA. Daie v. The Reed Grp., Ltd., No. C 15-03813 WHA, 2015 WL 6954915 (N.D. Cal. Nov. 10, 2015). After Aetna denied his claim for disability benefits and appeal under an employer-sponsored plan, Plaintiff filed suit asserting only one cause of action for intentional infliction of emotional distress. Plaintiff’s complaint alleged, among other things, that Defendants accused Plaintiff of lying about and exaggerating his condition, pressured him to take experimental medications and forced him to undergo rigorous medical examinations without considering the results.
Defendants moved to dismiss the claim based on federal preemption under ERISA. Judge Alsup denied the motion, explaining that ERISA completely preempts a state-law only if: (1) an individual at some point could have brought the claim under ERISA Section 502(a)(1)(B), which allows an ERISA “participant or beneficiary” to bring a civil action to recover benefits due, enforce his rights, or clarify his rights under the plan and (2) no other independent legal duty is implicated. Here, neither prong was satisfied. First, Plaintiff’s claim hinged on the Defendants’ harassing and oppressive conduct unrelated to the claims handling function. Second, Defendants had a duty not to engage in tortious conduct, which was independent of the Defendants’ duties under ERISA. Judge Alsup further noted that absent the denial of benefits, Daie would still have a claim for intentional infliction of emotional distress.
Other cases offer insight as to what type of actions by insurers may survive ERISA preemption. One example involves an insurance company who engaged in surveillance tactics, including falsely impersonating a bank lender to obtain personal information about a plaintiff (Dishman v. Unum Life Insurance Co. of America, 269 F.3d 974 (9th Cir. 2001)). Sarkisyan v. CIGNA Healthcare of California, Inc., 613 F. Supp. 2d 1199, 1208-09 (C.D. Cal. 2009) distinguishes what claims may, or may not be, preempted. In Sarkisyan, CIGNA denied authorization for a liver transplant for Plaintiff’s daughter, upheld the denial, and the girl passed away days later. The grief-stricken parents brought suit alleging several causes of action, including intentional infliction of emotional distress. CIGNA removed the case to federal court, then filed a motion to dismiss, contending Plaintiffs’ claims were expressly preempted by ERISA. The District Court ruled that Plaintiff’s state law claims for intentional infliction of emotional distress based on wrongful denial of coverage under their CIGNA health insurance plan related directly to CIGNA’s denial of benefits, and thus were preempted by ERISA. However, Plaintiffs’ state law claim for intentional infliction of emotional distress based on the verbal abuse, heckling, and “lewd hand gesture” by CIGNA employees was not preempted, because the claim was based on events occurring after the coverage decision, and thus did not directly relate to the claim decision.
These cases demonstrate that where a plaintiff’s allegations of intentional infliction of emotional distress clearly implicate an independent legal duty owed by the insurer, distinct from actions directly related to the claim for benefits, ERISA preemption does not defeat the claim. Indeed, these holdings are consistent with public policy concerns and serve as a disincentive to insurers who mistreat their insureds, or risk liability in the form of extra-contractual damages for intentional infliction of emotional distress.
Robert J. McKennon Named in the Business Edition 2015 Thomson Reuters/Super Lawyers annual list of the nation’s top attorneys in business practice areas
McKennon Law Group PC is proud and honored to announce that Robert J. McKennon, founding shareholder of McKennon Law Group PC, has been named in the Business Edition 2015 Thomson Reuters/Super Lawyers annual list of the nation’s top attorneys in business practice areas.
AB 387 Grants California Department of Insurance New Powers to Protect Disability Insurance Consumers
Short-term disability insurance and long-term disability insurance policies provide insurance benefits to consumers who are unable to continue working due to injury or sickness. Such coverage can be offered as a benefit of employment by an employer (in which case, the policy is usually governed by a federal law called the Employee Retirement Income Security Act of 1974 or ERISA) or can be purchased by the individual insured.
Regardless of how the coverage is obtained, the terms of every policy form for disability insurance must be approved by the California Department of Insurance before it is offered for sale. Recently, Governor Jerry Brown signed Assembly Bill 387, authored by Assembly Member Kevin McCarty and co-sponsored by Insurance Commissioner Dave Jones, which will improve the Department of Insurance’s ability to review draft disability policies before they are sold to the general public.
Among other changes, the new law increases the time the California Department of Insurance has to review policy forms and any associated risks and premium rates from 30 to 120 calendar days. Here is the press release from the California Department of Insurance:
New law improves rate filing review process
SACRAMENTO, Calif.– Governor Brown signed Assembly Bill 387 today, authored by Assembly Member Kevin McCarty. Co-sponsored by Insurance Commissioner Dave Jones, the law will ultimately improve the department’s ability to review and approve disability policy filings more effectively and completely in the specified timeframe.
“This law will allow my department to continue to protect consumers, make the approval process more effective and still allow for timely marketplace availability of products,” said Commissioner Jones. “I’d like to thank Assembly Member McCarty for authoring this bill.”
AB 387 reflects an agreement between the California Department of Insurance and the Association of California Life and Health Insurance Companies. The law extends the period of time allowed for the department to review and approve policy forms and any associated risks and premium rates from 30 to 120 calendar days.
The new law will also authorize the Commissioner to develop and publish new guidelines on the department’s public website for the purpose of streamlining and expediting the department’s file review process for life and disability insurance forms. Providing clear guidelines for insurers to follow when submitting policies for approval, coupled with increasing the amount of time to review and approve policies, will improve the overall process and reduce confusion for consumers and the industry.
The new law also requires the requesting of an independent study to examine and compare California law with standards set forth in the Interstate Insurance Product Regulation Compact. This study would examine important consumer protections established under current law for annuity, life insurance, disability income, and long-term care insurance products.
California Seniors Gain Protection Under Long-Term Care Policies
Long-term care insurance covers long-term personal and custodial care services, including in a variety of settings such as your home, a community organization or other facility. Long-term care insurance policies reimburse policyholders a daily amount (up to a pre-selected limit) for services to assist them with their activities of daily living when they are unable to perform these activities.
Individuals who have these policies do not currently receive periodic notification from their insurer that these benefits are available. Without notification, these individuals and their families can easily lose track of the existence of the benefits, especially if the insured suffers from cognitive impairment. These individuals and families likely end up paying for care despite having this insurance or doing without when, in fact, benefits are available.
Recently, Governor Brown signed Senate Bill 575, authored by Senator Carol Liu. Sponsored by Insurance Commissioner Dave Jones, the new law requires long-term care insurers to provide annual notification of the availability of non-forfeiture benefits and contingent benefits to the insured and the insured’s designated backup contact. This notification will give seniors and their loved ones a clearer understanding of benefits available to them. Here is the press release from the California Department of Insurance:
Seniors gain greater consumer protections under new law
SACRAMENTO, Calif.- New consumer protections were ushered in yesterday when Governor Brown signed Senate Bill 575, authored by Senator Carol Liu. Sponsored by Insurance Commissioner Dave Jones, the new law protects consumers, specifically the elderly and their caregivers by requiring long-term care insurers to provide annual notification of the availability of nonforfeiture benefits and contingent benefits to the insured and the insured’s designated backup contact.
“This notification will give seniors and their loved ones a clearer understanding of benefits available to help finance and provide long-term care,” said Commissioner Jones. “Without notification, individuals and their families can easily lose track of the existence of the benefits and may end up paying for care or missing out on benefits that are available to them. I would like to thank Senator Liu for authoring this important bill.”
Consumers may stop making premium payments because they can no longer afford them. Although the long-term care benefits may still be available to the consumer even after they stop making payments, the benefits may not be utilized by the consumer until years after the policy has lapsed, which is why consumers may forget the benefits are available for use.
SB 575 earned strong bipartisan support in the Legislature and was supported by the Congress of California Seniors, California Advocates for Nursing Home Reform, the California Commission on Aging, California Retired Teachers Association, California Health Advocates, the American Federation of State, County, and Municipal Employees, National Association of Social Workers, and the Arc and United Cerebral Palsy California Collaboration.
Robert McKennon and Joe McMillen Publish Article: “Examine the ‘Reasonable Expectations of the Insured’”
The September 22, 2015 edition of the Los Angeles Daily Journal features an article written by Robert McKennon and Joseph McMillen of the McKennon Law Group entitled: “Examine the “Reasonable Expectations of the Insured.” In the article, Mr. McKennon and Mr. McMillen discuss the California Court of Appeal’s decision in Sequeira v. Lincoln National Life Ins. Co., 2015 DJDAR 10163 (Cal. App. 1st Dist. Aug. 31, 2015), in which the Court applied the “Reasonable Expectations of the Insured” doctrine to allow an employee of a group life policy to collect life insurance benefits. Mr. McKennon and Mr. McMillen explain this doctrine that has been so vital to allowing insureds to gain their insurance policy benefits.