A recent case caused Merck & Co. to go down swinging on every pitch served up by the Third Circuit when it comes to being arbitrary and capricious.

Kosiba v.Merck & Company, 2011 WL 843927, set forth a procedural laundry list of errors by a plan administrator which would lead a court to find an administrator’s decision terminating LTD benefits to be arbitrary and capricious.

Continue Reading Merck’s Laundry List

Some doctors who examine for insurance companies feel free to play fast and loose with the truth when making reports on the condition of out of work employees because they do not have to fear malpractice claims.  Although fear of malpractice claims has been heavily overplayed by doctors and insurers in recent years, the plain fact is that insurance company doctors don’t have to fear malpractice claims since the person being examined is not the doctor’s patient.  There is no duty owing from the physician to the ERISA claimant being examined.  

Continue Reading The Malpractice NONdeterrent

You don’t have to be overly smart to understand why ERISA insurance companies do things in the most frustrating way imaginable.

Frustration is the primary tool of the insurance companies.  If they can get a claimant thinking he or she is battling an impenetrable wall of bureaucracy, they are more than halfway home to getting the claimant to give up the claim.  And that’s where a good part of the money insurance companies make can be found.

Continue Reading ERISA Insurers Love Frustration

We have previously written about the serious problems which result when insurance companies hire doctors to perform “paper reviews” of insurance claims without ever meeting or examining the patient, and then use those paper reviews to justify termination of benefits. In an ERISA context, this is particularly difficult because claimants are denied in most cases the opportunity to confront those professional reviewers or to cross examine them to show they are financially biased or otherwise not competent to speak to the issues about which they have given an opinion. Even so, insurance companies in increasing numbers rely on these unnamed, unknown medical sources to justify termination of benefits. On December 14, 2014, 60 Minutes broadcast a piece which speaks in part directly to this issue and points out the fundamental unfairness, indeed the dangers which can result when insurance companies make claim determinations and deprive people of benefits to which they are entitled and which they desperately need.

www.cbs.com/shows/60_minutes/video/u0_Aa3sp_lwp28lFirqom4Ptr_ldUknq/denied/

One of the things that some attorneys overlook when settling a third party claim in an ERISA matter is the effect of the insurance company subrogation lien on the proceeds of the settlement. ERISA gives a plan administrator the power to have a lien on the proceeds of any such settlement. Courts have a history of zealously protecting that lien for plan administrators.

Continue Reading An ERISA Lien Is Not A Joke

The Second Circuit Court of Appeals has clarified the issue of when an ERISA claimant is entitled to attorney fees from a plan administrator:

When you win, you are entitled to recover fees.

This ruling came in an opinion in which the Court reversed a lower court which had denied legal fees and costs to a claimant because the judge couldn’t find that the insurance company had acted in “bad faith”.

Continue Reading Win And Your ERISA Lawyer Gets Paid

If you want a prime example of why we hammer at you to read your policy before you accept it, take a look at Nunn, et al. v. Massachusetts Casualty Insurance Company, 2014 WL 684980 (2nd Cir. 2014). Although the plaintiffs, both NBA basketball referees, didn’t read their policies, the court gave them a shot at prevailing because they didn’t get the coverage they were clearly led to believe they were getting.

Continue Reading Don’t “Turn Over” Your Coverage Rights