California Insurance Lawyer Blog

We are about to bring a case to trial for a client who is disabled by AIDS-related symptoms, and has been since 1994. For more than 15 years, our client had proven his inability to work in any occupation, and Fort Dearborn Life Insurance Company paid benefits according to his disability policy. Without any warning, however, Fort Dearborn terminated our client’s long term disability benefits -- even though the medical evidence regarding his symptoms and the Social Security Administration’s disability determination remained unchanged.

What Fort Dearborn claimed had changed, according to its surveillance of our client, was his ability to perform limited activities of day-to-day living. Notably, for over a decade, our client had informed Fort Dearborn that he was capable of exactly that level of limited activity. So why the termination?

In its argument to the Court, and without a scintilla of evidence to support the claim, Fort Dearborn wrote:

“[Plaintiff] completely ignores the fact that there have been advances in medicine and numerous examples of HIV patients who have gone on to lead meaningful and industrious lives.”
…
“The former National Basketball Association player, Ervin [sic] 'Magic’ Johnson is one such example.”

Essentially, if Magic is fine, the argument goes, our client is fine.

Twenty years ago Earvin “Magic” Johnson made an announcement that altered the public’s perception of himself and HIV/AIDS. Clearly Magic’s courage in publicly confronting this disease had a significant positive impact on the public’s awareness of the actual facts regarding HIV/AIDS.

In 1991, it was widely believed that Magic’s announcement was tantamount to a death sentence. People had a real impression of the hardship faced by those suffering from HIV/AIDS. Fortunately, the medical landscape did change. Treatments improved, as did the quality of life for some, but not for all.

Magic started taking a cocktail of up to 15 pills per day, and he lived. The symbol of HIV/AIDS in America, Magic’s life changed the public’s perception of those suffering from HIV/AIDS. As Associated Press Sports Writer Greg Beacham put it, “with two subsequent decades of vibrant living, [Magic] forever altered attitudes about the virus and its effects.” See, “Magic Johnson Still Beating HIV 20 Years Later.”

Sadly, the current perception of those suffering from HIV/AIDS is one of a vibrant, vigorous, and successful businessman. For all too many, this perception is also dead wrong.

Our client continues to suffer from disabling fatigue, painful neuropathy caused by his AIDS medications, and ever present, embarrassing diarrhea. This is the reality of many suffering from symptoms due to HIV/AIDS. It is also a reality that is obscured by his prominence in the public’s eye, as Magic himself reminded Beacham:

“‘I often say I’m good for the virus, and bad for it,’ Johnson said. ‘Good because I’m doing well, and that I can go out and try and raise the awareness level, get people to go get tested…but on the flip side of that, people see that I’m doing well, so they’ve kind of relaxed on HIV and AIDS. People think that now if they get the virus, they’ll do well…’”

It is not a new message that Magic is trying to spread. Five years ago Magic was quoted in USA Today: “‘You can’t take that attitude that you’re going to be like Magic,’ says Johnson…. ‘The virus acts different in all of us. There’s no certainty that if you get the virus, you’re going to be OK.’” See, “Magic Johnson Combats AIDS Misperceptions.”

But public perception is powerful, even if it has little relation to reality, and insurers are not reluctant to use misperceptions to bolster their arguments. As a result, those not as fortunate as Magic will face increased prejudice and, like our client, the all too real consequence of those misperceptions.

We believe we can get the Court to understand this, and to force Fort Dearborn to pay our client the benefits he deserves.

If you have encountered misperceptions leading to Long Term Disability benefits terminations for AIDS-related or any other disability, contact us at (800) 446-7529. We can help.

Life Insurance Company of North America (LINA) insured the life of Timothy Whinery. Mr. Whinery died in a tragic automobile accident. His wife eventually made a claim for life insurance benefits under the LINA policy. Incredibly, even though the LINA policy promised to pay benefits for a loss "caused by an accident," the policy did not define the term "accident." Worse, in this case LINA determined that Mr. Whinery's death was not caused by an accident, and so refused to pay. The facts are a bit complicated, but in essence, LINA said that because Mr. Whinery was legally intoxicated at the time of the accident, his death was "foreseeable," and foreseeable consequences cannot be deemed accidental.

What's worse, LINA actually sells life insurance policies that contain specific provisions precluding benefits when death is caused by driving while intoxicated, but the Whinery policy DID NOT contain any such exclusion. This claim should have been paid! Our view is that LINA is acting unreasonably and in bad faith in continuing to deprive the Whinery family of the life insurance benefits they paid for. You can read more details in a Lawyers.com blog item by clicking on this link: DWI Death an Accident, Insurer's Claim Rejection Not

The case is filed in the Central District of the United States District Court and is assigned to the Honorable Percy Anderson, Judge Presiding. Trial is currently set for December 20, 2011.

PRESS RELEASE:

LOS ANGELES, October 31, 2011 -- Kantor & Kantor, LLP announced today that lawyers Alan Kassan and Corinne Chandler are presenters at the 21st Annual Western Region Chapter of the National Association of Professional Geriatric Care Managers held at the Bellagio Hotel in Las Vegas November 3-5. The session, “Obtaining Insurance Benefits for Your Client’s Care,” is scheduled for Friday, November 4, at 2:15.

“Many people purchased long-term care insurance decades ago and before many of today’s senior care options were even contemplated,” said Mr. Kassan, a Kantor & Kantor partner who sues insurance companies on behalf of individuals denied long-term care. “As a result, since most many present care options are not enumerated in polices, and insureds have to appeal or litigate to ensure benefits for the most appropriate long-term care. Part of what we do is educate professionals in the geriatric care industry about how to understand insurance policy language and to help their clients with the legal process.”

A common reason LTC carriers deny benefits is because the policyholder resides in an assisted living facility but the 20-year-old policy doesn’t cover such facilities, which were not an option until recent years. Kantor & Kantor has successfully litigated the issue, allowing policyholders to receive benefits for assisted living.

“As the Baby Boomer population ages and requires care, we expect more options to arise for which insurers will deny coverage,” said partner Corinne Chandler. “When geriatric care professionals understand that insurance companies don’t always have the last word, they can better help their clients navigate the often complex long-term care legal environment."

About Kantor & Kantor, LLP
Kantor & Kantor is one of the largest law firms in the country exclusively representing plaintiffs who have been denied insurance benefits from life, health, disability and long-term care policies. The firm has extensive experience with the complex appeals process and federal court litigation of ERISA matters. For more information, log on to www.kantorlaw.net, call (800) 446-7529, or follow the firm at www.californiainsurancelawyerblog.com.