McKean Evans

Medical Proof Required to Deny ERISA Claims Based on Intoxication Exclusion Says Fifth Circuit

Many ERISA plans and insurance policies contain provisions excluding coverage for losses caused by the insured’s intoxication. In cases where the plan or insurer asserts such an exclusion, the question becomes what evidence must the insurer put forward in order to prove the insured was intoxicated and the exclusion applies?

The U.S. Court of Appeals for the Fifth Circuit recently answered that question in White v. Life Insurance Company of North America. Life Insurance Company of North America (“LINA”) issued an ERISA-governed life insurance policy insuring Mr. White with Mrs. White as the beneficiary. Mr. White was killed in a horrible car crash in which his vehicle crossed the center line and struck an oncoming 18-wheeler head-on.

LINA denied coverage asserting the policy’s intoxication exclusion precluded coverage because Mr. White was drunk at the time of the crash. Weather and road conditions were clear at the time of the crash, Mr. White’s vehicle appeared to function properly, and paramedics reported smelling alcohol on Mr. White’s breath. Hospital staff took blood and urine samples from Mr. White that tested negative for alcohol but contained undefined amounts of amphetamines, cocaine, opiates, benzodiazepine, and cannabinoids. The tests were preliminary and only indicated the presence, not the amount, of controlled substances.

The Court agreed with Mrs. White. The LINA life insurance policies excluded coverage for death “caused” by Mr. White’s intoxication. The policy (borrowing from Arkansas law) defined intoxication to mean “influenced or affected by the ingestion of alcohol [or] a controlled substance…to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger or physical injury to himself or herself or another person.”

The Court found LINA’s evidence failed to meet the policy definition of intoxication. LINA relied on the opinion of a toxicologist who opined it was impossible to estimate the level of Mr. White’s impairment at the time of the crash based on the preliminary test results. The toxicologist opined only that “in the absence of any other cause of the collision, the drugs in [Mr. White’s] system could explain his level of impairment that resulted in his crash.”

Accordingly, the Court entered judgment in favor of Mrs. White. The White case is an important reminder that ERISA plans and insurers cannot deny claims by asserting exclusions that lack tangible factual support.

Health Insurer Fined For Violating Independent Review Rules

Washington’s insurance commissioner recently announced a $100,000 fine in response to a consumer complaint that Kaiser Foundation Health Plan, an HMO, ignored consumers’ rights in the health claims appeal process. The commissioner found that Kaiser failed to follow several rules related to appeals of health insurance claims to an Independent Review Organization (“IRO”).

At issue are rules contained in Washington’s statutes and administrative codes protecting insurance policyholders. Among other things, Washington law required Kaiser to provide the IRO with any records, documents, or information relevant to the claim within three business days; ensure that expedited reviews are adjudicated within 72 hours of the policyholder’s request; and provide the policyholder the IRO’s name and contact information within one business day.

In Kaiser’s case, the insureds had the right to provide evidence supporting the insured’s claims to the IRO within five days. However, Kaiser failed to notify most consumers they had the right to do this. The commissioner also found Kaiser dragged its feet in the IRO process. Kaiser was found to have failed to timely send claims files to the IRO; failed to process expedited claims on time; and failed to timely give consumers the IRO’s name and contact information.

The commissioner found these violations occurred during the period from January 2016 through March 2017.

Kaiser signed a Consent Order regarding the above violations, pursuant to which Kaiser acknowledged its duty to comply with the law and consented to imposition of the fine.

The Fine Print Matters In Insurance Coverage Disputes

Many insurance disputes revolve around the fine print of the policy. Unfortunately, the policy’s specific language may define important terms differently from what the insured understood or was led to believe. This was the case in the Seventh Circuit Court of Appeals’ recent decision in Fiorentini v. Paul Revere Life Insurance Company.

In Fiorentini, the plaintiff became disabled during aggressive cancer treatment. The insurer affirmed coverage and paid disability benefits while the plaintiff remained unable to work. But a dispute arose after the plaintiff went back to work. The insurer argued the plaintiff was no longer disabled since he had returned to work, but the plaintiff argued he remained disabled because, despite being back at work, he still could not perform all of his job duties. Specifically, the plaintiff argued that while he could perform most job duties, aftereffects of his cancer treatment left him unable to meet face-to-face with potential clients.

The plaintiff relied on the policy’s definition of “total disability” which provided the plaintiff was disabled if he was “unable to perform the important duties” of his job. The plaintiff argued that meeting in person with potential client was an important duty. Hence, the plaintiff claimed that being unable to meet in person with potential clients rendered him disabled even admitting he could do all the other functions of his job.

The court read the policy differently. The court interpreted the definition of disability to cover only the “inability” to do important job duties, not merely a “diminished” ability to perform. The court concluded that even assuming the plaintiff’s ability to meet face-to-face with potential clients was diminished by the aftereffects of his cancer treatment, the client was not totally unable to perform his job duties. Since the court decided that meeting in person with new clients was not essential to the plaintiff’s job, being unable to meet with new clients only diminished the plaintiff’s ability to perform his duties – it did not render the plaintiff unable to perform his duties.

In short, the court parsed the policy fine print in a way that undercut the insured’s expectations about what would be covered. The Fiorentini decision illustrates the importance that policyholders carefully scrutinize policy language to learn their rights.

Pet Insurance: Read The Fine Print

Great Danes might be the best dogs – they’re calm, require relatively little exercise and space, and are super affectionate towards their human family. Unlike a lot of needier breeds who need constant activity, Danes reputedly just want to chill with you on the sofa.

The problem with Great Danes is they’re prone to significant, protracted health problems that get incredibly expensive – partly due to their large size and partly due to their susceptibility to congenital and hereditary disorders. Thus, in researching the pros and cons of owning a Dane, I was repeatedly advised “buy pet insurance!” That got me thinking whether pet insurance is actually a good deal or a scam preying on cost-conscious pet owners.

Apparently pet insurance, whatever its benefits, has caught the ire of Washington State’s Insurance Commissioner for some pretty significant problems. One company was found to have violated state law more than 600 times. Among other things, the pet insurer:

Illegally failed to give new policyholders copies of their policy contracts;
Misrepresented the policy coverage in its marketing and advertising materials;
Failed to cancel policies after pets died or the policyholder no longer owned the pet;
Sold policies under a fake name, preventing consumers from identifying the company when they had complaints;
Misled consumers about under what circumstances the company would refund premiums;
Ignored consumer complaints;
Sold insurance through unlicensed brokers; and
Failed to explain the reasons for refusing to renew coverage.

Pet insurance also tends to come with significant exclusions. Pre-existing condition exclusions are unsurprising. But some policies also exclude “wellness” care and expenses “not directly related to veterinary service” – super ambiguous terms with lots of room for fine print and interpretation that could give the company a basis to deny coverage.

Similarly, some insurance excludes hereditary or congenital disorders – a major drawback if your pet is of a breed (like Great Danes) that are notoriously subject to such diseases.

The upshot is to do your diligence and research the company and your coverage carefully before buying pet insurance, and to double check the policy fine print on your existing coverage to be sure you have the coverage you thought you bought.

The Moral High Ground Is Crucial In Insurance Disputes, Confirms Ninth Circuit

In any lawsuit, but particularly an insurance dispute, it’s important to have the “moral high ground.” In an insurance case, this means cooperating with the insurer and responding to the insurer’s reasonable requests for information. Even where the insured is in the right, insurers often seize on the insured’s failure to provide information about their claim or otherwise cooperate in the insurer’s investigation to justify denying coverage or payments. Even where the insurer is acting unreasonably, failing to cooperate with the insurer gives the insurer a pretext to justify its conduct.

This was emphasized in the Ninth Circuit Court of Appeals’ recent decision in Birdgham-Morrison v. National General Assurance Company. Ms. Birdgham-Morrison sued her insurer National General for failing to pay the full amount needed to cover her injuries sustained in a car crash under her Underinsured Motorist (“UIM”) coverage.

Ms. Birdgham-Morrison’s problem was the insurer was able to leverage her failure to provide the insurer more information about her injuries to justify refusing to pay the full amount of her claim. The court noted the insured’s lawyer sent letters to National General demanding it pay the claim, but did not include specific information about her injuries. Similarly, the court noted the plaintiff never responded to the insurer’s requests for additional information about her injuries.

Accordingly, the court ruled that National General did not violate Washington’s Insurance Fair Conduct Act in denying the full amount of Ms. Birdgham-Morrison’s claim.

This case illustrates the unfortunate reality that insureds must be able to show they went above and beyond in assisting the insurer with investigating their claim if they want to get the full policy coverage they paid for.