McKean Evans – Page 7 – Seattle Insurance and ERISA Blog

ERISA Appeal FAQs

ERISA, the federal law governing most employer-sponsored benefits (e.g., health, disability or life insurance, or pension or retirement benefits) gives participants the right to appeal the Plan or insurer’s denial of payment or benefits (in legalese, an “adverse benefit determination”). Plans and insurers are required to be transparent about participants’ appeal rights. Unfortunately, adverse benefit determination notices often fail to adequately explain participants’ appeal rights and important deadlines.

Below is a “cheat sheet” listing some of the issues relevant to participants’ rights to appeal an adverse benefit determination under ERISA:

You must appeal before filing suit. ERISA generally requires participants to exhaust their administrative remedies before filing suit. This requires going through the Plan or insurer’s internal appeal process before bring a lawsuit. If you sue before exhausting the appeal process, the court will likely dismiss the lawsuit and your claim could be barred. Note that ERISA typically requires only one appeal – while Plans often provide for multiple levels of appeal, participants are generally free to file suit after the first appeal is denied. Indeed, in most cases, successive rounds of appeal serve no purpose other than to permit the Plan or insurer to bolster its position with several rounds of supposedly “independent” review that typically rubber-stamp the original adverse benefit determination.
You must appeal within the deadline. Once the Plan or insurer renders an adverse benefit determination, the deadline starts running in which to appeal the decision. The deadline is often short, depending on the details of the Plan documents. Failure to timely appeal will often irrevocably destroy your right to dispute the adverse benefit determination or file a lawsuit.
Your appeal must contain all relevant information. If the appeal is denied and the participant files a lawsuit, the evidence that can be presented in the lawsuit is often limited to the information submitted to the Plan or insurer during the appeal process. Thus, it is critical to submit all potentially relevant information during the appeal process. Even information that might seem irrelevant at first could potentially become relevant in a lawsuit.
Your appeal must account for the Plan documents and the Plan or insurer’s investigation. Despite federal regulations requiring transparency in ERISA claims, adverse benefit determination notices often fail to contain important information relevant to the dispute. This includes the full Plan documents setting forth participants’ rights under the Plan. It also includes the Plan’s or insurer’s claim file, which often contains internal notes or other evidence reflecting the true basis for the adverse benefit determination. Acquiring this information and addressing it with rebuttal evidence is critical to prevailing in any appeal or lawsuit challenging the denial of payment or benefits.

ERISA appeals can be complex, and failure to follow the appropriate procedures can be fatal to participants’ rights to coverage or benefits. It is critical to carefully scrutinize all correspondence with the Plan or insurer, the governing Plan documents, and the applicable evidence before submitting an appeal.

Is My Dog Covered Under My Homeowner’s Policy?

Seattle may be famously dog-friendly, but there is a lot of uncertainty about whether or to what extent dog-related injuries are covered under traditional liability policies. Homeowner’s coverage typically protects the insured against liability claims arising from injuries to other people for which the insured is legally responsible. But policyholders are increasingly learning that dog bite injuries are excluded or limited under many homeowner’s insurance policies.

A recent study found dog-bite lawsuits have risen sharply over the last several years. Dog bites were estimated to cost insurers over $9 million in Washington State in 2017. These incidents reportedly constitute over a third of all homeowner’s claims. Most claims involved dogs biting small children or other dogs. Delivery-persons are also frequently involved in dog-bites – the increase in dog-bite claims over the past years has been linked to the increased prevalence of online shopping. Many states and municipalities are adding laws making owners liable for injuries caused by their pets. Legal fees and medical bills in dog-bite cases can be significant.

Dog owners often look to homeowner’s policies for coverage. Typical homeowner’s policies cover any injuries for which the policyholder could be liable. This would seem to cover dog bites in principal, but polices often exclude injuries caused by animals entirely or limit the number of claims that can be made related to injuries caused by a single animal. Or, some policies may limit coverage for certain breeds such as pit bulls or rottweilers. In some instances, umbrella liability policies may cover pets or breeds excluded from homeowner’s coverage, but may have similar restrictions.

The upshot for dogs and their owners is to carefully review the terms of your homeowner’s coverage to confirm you have coverage if your dog injures other people or pets.

Insurers Fined for Raising Premiums Following Credit Freezes

In the wake of the multiple recent data breaches, consumers are increasingly advised to use a credit freeze to mitigate their risk of identity theft. Credit freezes reduce the risk identity thieves your identity is used to open fraudulent accounts by prohibiting the major credit reporting agencies from responding to inquiries, and effectively stopping anyone from obtaining credit in your name.

But many consumers are paying for the credit freeze in surprising ways. Washington’s Insurance Commissioner recently fined GEICO for raising premiums on insureds who froze their credit.

Insurers are generally permitted to consider consumers’ credit scores in setting premiums. Accordingly, raising premiums on consumers who effectively have no credit score because of a credit freeze is technically legal.

However, insurers must notify policyholders whose premiums are increasing due to a credit freeze. Notices must explain the insured’s premiums are increasing and provide a reason for the increase.

In GEICO’s case, the Insurance Commissioner found GEICO failed to properly notify affected insureds. While GEICO notified insureds it was raising their premiums, it failed to detail that the basis for the premium hike was the insured’s credit freeze.

In short, if your premiums recently increased, it’s worth contacting your insurer and insisting on an explanation.

Washington Court of Appeals Emphasizes Insurers May Not Categorically Ignore Their Insureds’ Treating Physicians When Deciding Whether Injuries Are Covered

Shannon Leahy found herself in a common situation when dealing with her auto insurer following a car crash. Her insurer agreed she was not at fault, but refused to pay her claim, arguing her medical treatment was unrelated to the crash. Ms. Leahy’s doctors agreed her treatment was related to the crash, but State Farm ignored Ms. Leahy’s doctors in favor of the opinions of State Farm’s “independent” medical expert who (unsurprisingly) opined Ms. Leahy’s treatment was unrelated. Can they do that?

In Ms. Leahy’s case, the answer was “no.” On May 21, 2018, the Washington Court of Appeals clarified that insurers may not ignore the opinions of their insureds’ physicians when making coverage determinations in Leahy v. State Farm Mutual Automobile Insurance Company, No. 76272-9-I.

Ms. Leahy was injured when her vehicle was struck from behind. The other driver was at fault, but had insufficient insurance to cover Ms. Leahy’s injuries. Accordingly, Ms. Leahy made a claim with her auto insurance carrier State Farm, with whom she had coverage for Personal Injury Protection (“PIP”) and Underinsured Motorist coverage (“UIM”).

Ms. Leahy was still receiving treatment from her injuries about two years after the crash. State Farm asked her to undergo a medical exam with a third party doctor chosen by State Farm to determine whether her ongoing treatment was medically necessary. State Farm’s third party doctor, Dr. Lecovin, determined Leahy’s treatments were excessive. Thereafter, State Farm determined it would no longer cover Ms. Leahy’s treatment under her PIP coverage.

State Farm also disputed whether Ms. Leahy’ UM policy covered her injuries. State Farm’s adjuster concluded Ms. Leahy’s injuries were not caused by the collision. Ms. Leahy claimed the crash aggravated her pre-existing medical condition and thus that the aggravated injury was covered.

The dispute went to trial, at which the jury found in favor of Leahy. State Farm paid the policy limits. Ms. Leahy asserted new claims for bad faith premised on State Farm’s handling of her claim. The trial court dismissed Ms. Leahy’s claims and she appealed.

On appeal, the Court of Appeals reinstated Ms. Leahy’s claims. The court determined State Farm arguably violated the law by failing to consider the opinions of Ms. Leahy’s treating physicians that her injuries were aggravated by the crash. Ms. Leahy’s physicians were both board-certified rheumatologists and University of Washington faculty. The court determined there was a reasonable dispute whether State Farm could simply ignore their opinions. At minimum, Ms. Leahy was entitled to have a jury decide whether State Farm’s conduct was reasonable.

The court also determined State Farm’s low offer compared to Ms. Leahy’s recovery at trial could potentially show State Farm acted in bad faith. The court emphasized the proper analysis was what State Farm knew at the time it made the offer, not after trial. Given the evidence showed a legitimate conflict between State Farm’s position that Ms. Leahy’s injuries were mostly unrelated to the crash and the opinions of Ms. Heahy’s treating physicians, the court determined Ms. Leahy was entitled to a trial on this issue.

In sum, the Leahy decision is an important win for Washington policyholders because it emphasizes insurers may not categorically ignore the opinions of the insured’s treating physicians in order to deny coverage.

Court of Appeals Clarifies Policy Causation Language In Favor Of The Insured

When language in one part of your ERISA policy says your claim is covered, can the company rely on language elsewhere in the policy to deny your claim? The Ninth Circuit Court of Appeals recently answered “no.” In Dowdy v. Metropolitan Life Ins. Co., the court ruled the conflicting language about what caused the insured’s loss did not preclude coverage.

Mr. Dowdy’s leg was amputated following a car crash. He made a claim under his ERISA-governed Accidental Death & Dismemberment insurance policy with MetLife, purchased through Mrs. Dowdy’s employer.

MetLife denied coverage, claiming the amputation was excluded because it was complicated by Mr. Dowdy’s diabetes. MetLife relied on language in the policy requiring the loss to be the “direct result of the accidental injury, independent of other causes,” and excluding injuries for losses related to “illness or infirmity” or “infection occurring in an external accidental wound.” Under this language, MetLife claimed the right to deny coverage for any amputation “contributed to” or “complicated by” diabetes.

The court ruled the language could be read two ways, but that the Dowdys prevailed under either interpretation. Under one interpretation, coverage existed if the injury was the “predominate or proximate cause,” while under the more stringent interpretation, coverage was barred as long as the excluded condition (diabetes) “substantially contributed” to the loss.

While agreeing diabetes was “a factor” in the injury leading to the amputation, the court determined there was no evidence diabetes “substantially” contributed to the injury. The court relied on definitions of “substantial” requiring “a significant magnitude of causation” demonstrating the diabetes was “more than merely related to the injury.”

Since Mr. Dowdy’s medical records established only that diabetes “complicated” Mr. Dowdy’s wound, the court determined diabetes did not “substantially” contribute to the injury. The car crash caused a severe injury that nearly severed Mr. Dowdy’s leg. The subsequent infection and wound issues were complicated by diabetes, but did not cause Mr. Dowdy’s amputation.

Because this type of language frequently appears in Accidental Death & Dismemberment policies as well as health and disability policies, the Dowdy ruling is helpful for many ERISA participants seeking coverage.