Why Do I Have to File a Lawsuit?

When an ERISA long-term disability appeal gets denied, the next step is, potentially, to file a lawsuit in federal district court. Some clients already know that they would like to settle their case and ask, why can’t we just negotiate a lump sum settlement with the insurance carrier? Why do I have to file a lawsuit? In short, while plaintiffs’ attorneys would likely be amenable to negotiating informally, insurers generally refuse to come to the table until a formal complaint has been filed. The weight of a formal lawsuit perhaps creates more real incentive and pressure for the insurer to settle, and the process is well established and well understood. Having already filed suit, one benefit of going through the court process for a plaintiff is that, in the event a settlement can’t be reached, there is the possibility of taking the case to trial within a shorter timeline –the complaint has already been filed, a judge has been assigned, and certain deadlines have already been put on the court calendar. The desirability of accepting a lump sum settlement varies from case to case.

What Does a Win at Trial Look Like?

In 2017, 47,000 Americans died by suicide and 17.3 million adults suffered at least one major depressive episode. When I see statistics like those, my mind floods with a flurry of thoughts all at once:

  • “Why?”
  • “How many more have died by suicide since 2017?”

September is National Recovery Month and is an observance held every September to promote and support new evidence-based treatment and recovery practices, the emergence of a strong proud recovery community, and the dedication of service providers and community members across the nation who make recovery in all its forms possible.

Mental health and substance use disorders affect all communities nationwide, with commitment and support, those impacted can embark on a journey of improved health and overall wellness. The focus of National Recovery Month this September is to celebrate all people that make the journey of recovery possible by embracing the 2021 theme, Recovery is For Everyone: Every Person, Every Family, Every Community.” National Recovery Month spreads the message that people can and do recover every day.

Mental health and substance use disorders affect people from all walks of life and all age groups. These illnesses are common, recurrent, and often serious, but they are treatable, and many people do recover. Mental disorders involve changes in thinking, mood, and/or behavior. These disorders can affect how individuals relate to others and make choices. Reaching a level that can be formally diagnosed often depends on a reduction in a person’s ability to function because of the disorder. For example:

I highly recommend the NPR series, “Bill of the Month,” which offers an expert analysis of medical bill surprises. This month’s bill concerns jaw surgery and a hospital bill of more than $27,000. The patient, Ely Bair, had a condition requiring two jaw surgeries. The first jaw surgery went very well and Bair paid his out of pocket maximum of $3,000 and his employer’s health plan with Premera Blue Cross covered the rest.

Bair’s second jaw surgery was with the same hospital and the health insurer was also Premera. But this time, Bair received a bill of $27,119 from the hospital.

The reason is in the fine print. Although Bair was covered under Premera policies for both surgeries, he changed employers between the two surgeries. Although both employers used Premera, the insurance coverage provided by Premera was different with each employer. The second Premera plan had a lifetime maximum of $5,000 for this jaw surgery. That left Bair responsible for the rest of the hospital bill. When he appealed, Premera pointed him to the specific language in the 80-page policy that addresses the lifetime maximum for this specific surgery.

Because of the number of fires in California over the past several years, there are huge shortages of labor and materials for building homes. It can take well over a year for someone who lost their home in a wildfire to secure a contractor and get permits to be able to build.

The California Department of Insurance knows this. On May 18, 2019, the Insurance Commissioner issued a Notice requiring insurers to extend additional living expense (“ALE”) benefits to as long as 36 months if needed for claims made due to a state emergency such as a wildfire, regardless of any time limit in the policy. “Good cause” is specifically noted to be unavoidable delays in the construction process. This can be delays with obtaining permits, or finding a contractor, or getting materials. It can also be delays due to the pandemic.

Note that this extension does not increase the dollar limit of ALE, if any, in the policy, so if your rebuild is delayed, you want to minimize the monthly cost of your lodging and related expenses to stretch it out as long as possible. This extension only applies to fires that occurred on or after September 21, 2018. However, 29 insurance companies agreed to voluntarily provide this extension to victims of the 2017 wildfires as well.

Many employers today provide group life insurance coverage for their employees. A benefit adjacent to group life insurance is accidental death and dismemberment (“AD&D”) insurance. AD&D insurance pays you a benefit if you lose a limb or an eye, or it may pay your beneficiary additional life insurance benefits if you die in an accident.

Most AD&D policies define accident with terms like “sudden,” “unforeseeable,”  “unintentional,” and “external cause” – not exactly concrete and easy to follow guidelines to determine whether a death was accidental or not. When a claim is made to an insurance company for accidental death benefits, the insurer considers the events and actions that caused the person’s death and decides whether the claim meets the policy’s definition of accident. If the death was caused by an injury and not an illness, how did that injury happen? Was the person going about their normal life and was struck down in some way that they did not expect? Were they doing something dangerous and likely to cause injury? As one judge said: “What is an accident? Everyone knows what an accident is until the word comes up in court. Then it becomes a mysterious phenomenon, and, in order to resolve the enigma, witnesses are summoned, experts testify, lawyers argue, treatises are consulted and even when a conclave of twelve world-knowledgeable individuals agree as to whether a certain set of facts made out an accident, the question may not yet be settled, and it must be reheard in an appellate court.” Brenneman v. St. Paul Fire and Marine Ins. Co., 411 Pa. 409, 192 A.2d 745, 747 (1963)

The decision of whether a death was an accident often hinges on whether the person’s death was “foreseeable.” When analyzing whether a death was foreseeable, the insurer generally first considers whether the person expected to be seriously injured as a result of their actions. Consider a scenario where a person died when they were injured diving off a tall cliff. If that person was a champion cliff diver and regularly dove off tall cliffs, they would not expect to be seriously injured performing such a dive. Second, the insurer considers whether that expectation was reasonable. In the case of our cliff diver, because she had been cliff diving regularly without injury, her expectation to not be injured while cliff diving was reasonable. This analysis becomes more confused in the real world where the facts are not always so clear.

On August 23, 2021 Kantor & Kantor, LLP filed a complaint against Blue Shield of California in the Superior Court for the State of California, County of Los Angeles alleging Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, and violation of California Civil Code Section 3428.

After a routine mammogram in 2013, and a subsequent biopsy, Kantor & Kantor’s client, a 59-year old woman, was advised her risk of developing breast cancer was higher than the general population based on the presence of the papillomatous tissue. Upon being advised that she would be a good candidate for one stage breast reconstruction, plaintiff underwent a bilateral mastectomy with bilateral breast reconstruction in February of 2014.

In 2019 the plaintiff contacted her surgeon reporting chronic pain over the chest wall and into her back, despite physical therapy. Plaintiff reported that the pain had gotten consistently worse over a few years and was limiting her activity and causing daily pain.

The United States Department of Education recently announced it would forgive the student debt of more than 300,000 disabled borrowers. Could this impact your long-term disability benefits?

The topic this pertains to is offsets (amounts that can be subtracted) that insurance carriers are allowed to take from their claimants’ benefits. The “Other Income” provision of your group long-term disability policy sets forth the types of “income” a claimant might receive that the carrier would be allowed to offset – subtract – from the benefit it pays.

Typically, group LTD policies list things like: Social Security Disability Income benefits, Dependent Social Security Disability Income benefits, Workers’ Compensation benefits, certain pension benefits, and income from third party settlements, among others. The claimant must notify the carrier when he or she receives these benefits and the carrier will then calculate the amount it gets to offset, as well as whether it believes it has “overpaid” the claim.

Kantor & Kantor asks to file a class action against Primerica Life Insurance Company for its failure to provide insureds with the right to designate a third party to receive notice of lapse 

Are there ways to prevent a life insurance policy from lapsing? Sometimes the answer is yes. However, often it requires particular knowledge of the law.

On August 13, 2021, Kantor & Kantor filed a motion asking the Federal District Court for the Central District of California to allow the amendment of a complaint to bring class action allegations against Primerica Life Insurance Company. The class action asserts that Primerica has a business practice of failing to provide California insureds with their statutory right to designate a third party to receive notice that a life insurance policy will lapse.

Lipedema is a condition that causes excess fat to accumulate in the lower part of the body. Lipedema most often involves the buttocks, thighs, and calves. The upper arms can also be affected. The condition does not affect the hands or feet. It can also lead to debilitating symptoms if left untreated, including chronic pain and the inability to walk or move around easily.

What Causes Lipedema?

The exact cause of lipedema is unknown. But the condition runs in families and may be inherited. The condition occurs almost exclusively in women, and usually starts or gets worse at the time of puberty, pregnancy, or menopause. Because of this, there is likely a connection to hormones. Lipedema is not caused by obesity but more than half of patients with this condition are overweight or obese.

Contact Information