cmonfils | December 12, 2011
The United States Court of Appeals for the Fifth Circuit, reversing a lower court decision, has ruled that ERISA does not preempt certain state statutory and common law claims for negligent misrepresentation and other unfair and deceptive practices.
cmonfils | November 20, 2011
Employer’s Guide to Self-Insuring Health Benefits
Thompson Publishing November 2011 Vol. 19, No. 2
The federal agencies in charge of implementing health reform and the National Association of Insurance Commissioners (NAIC) keep saying stop-loss policies with low attachment points mean an employer-sponsored health plan is really not self-funded. Contributing Editor Adam V. Russo and Attorney Ron Peck say that NAIC experts are trying to reduce the number of employers that choose self-funding because they: (1) want to force more healthy employees into state-run insurance exchanges; and (2) feel that if they can’t regulate ERISA plans, ipso facto, consumers are put in danger. In doing this they are ignoring a tidal wave of legal precedent holding that self-funded health plans remain that way regardless of the kind of stop-loss insurance the sponsor chooses. Eliminating the option to purchase stop-loss for smaller groups would raise health insurance costs for everybody, Russo and Peck say. (more…)
cmonfils | January 12, 2011
January 7, 2011 • Roy Harmon III
ERISA provides federal courts with jurisdiction to review benefits determinations made by fiduciaries or plan administrators. 29 U.S.C. § 1132(a)(1)(B); see also Lopez ex rel. Gutierrez v. Premium Auto Acceptance Corp., 389 F.3d 504, 509 (5th Cir. 2004). A district court’s function when reviewing ERISA claims is like an appellate court’s.
“[The court] does not take evidence, but, rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary.” Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir.2002). Courts cannot consider additional evidence “resolve the merits of the coverage determination—i.e. whether coverage should have been afforded under the plan-unless the evidence is in the administrative record, relates to how the administrator has interpreted the plan in the past, or would assist the court in understanding medical terms and procedures.” Crosby v. La. Health Serv. & Indem. Co., — F.3d —, No. 10-30043, 2010 U.S. App. LEXIS 26323, *8, 2010 WL 5356498 (5th Cir. Dec. 29, 2010). A claimant is not permitted to explore, through discovery in an ERISA lawsuit, what information a plan administrator “should have considered” in making its benefits determination, as opposed to analyzing the information that the plan administrator “did consider” in making its decision. Griffin, 2005 U.S. Dist. LEXIS 18720, 2005 WL 4891214, at *2. (more…)
Adam V. Russo | August 31, 2009
From The Bench – The Self-Insurer Volume 26* August 2009
By John H. Eggertsen, Esq. and Michael Friedman, Esq.
II. Fifth Circuit Rejects Benefit Decision For Procedural Defects; Can’t Even Assess If Determination was Arbitrary And Capricious
In Lafleur v. Louisiana Health Service Indemnity Company, d/b/a Blue Cross Blue Shield of La., 563 F.3d 148 (5th Cir. 2009), the Fifth Circuit found that Blue Cross Blue Shield of Louisiana (“BCBSL”) was so deficient in its substantive compliance with ERISA’s procedural regulations that it could not even express an opinion as to whether the determination was arbitrary and capricious. (more…)
Adam V. Russo | July 29, 2009
by Andrea Jackson, Times-News, www.magicvalley.com
A Twin Falls lawyer is fighting a lawsuit slapped against him by a former client claiming negligence, and has filed paperwork to dismiss the case in Twin Falls 5th District Court.
William Hollifield, of the Hollifield Law Office in Twin Falls, is being sued by Amanda Fomichev, a former client who hired him as a personal injury lawyer after she lost a leg when she was hit by a vehicle while working as a car wash attendant almost four years ago at Lynch Oil Inc.’s Mr. Wash. (more…)
Adam V. Russo | May 13, 2009
In Arnold v. Hartford Life Insurance Co.( 542 F. Supp. 2d 471 (W.D. Va. 2008), Hartford denied a beneficiary’s claim for accidental death benefits, concluding that the insured’s death was not due to an “injury” as defined in the policy. The insured died at the scene of a motorcycle crash. The immediate cause of death was a closed-head injury with cervical spine fracture. At the time of the crash, the insured was legally intoxicated. (more…)
Adam V. Russo | December 29, 2008
In Avmed, Inc. V. BrownGreer, PLC, 2008 WL 4909535 (5th Cir. 2008), the 5th Circuit Court of Appeals hurt the health insurance subrogation industry when it comes to Vioxx claims. The court recognized that ERISA health plans have legitimate rights of subrogation and reimbursement for medical expenses paid to participants who suffered health issues after taking Vioxx, a drug intended to relieve pain.
The Court questioned whether settlement funds belonged to the subrogated plans and indicated that technical problems in mass tort multi-district litigation makes it difficult for plans to perfect their subrogation rights. (more…)
Adam V. Russo | November 11, 2008
Most lawsuits to recover damages in car accidents are resolved in state courts. State courts will order that at least a portion of the judgment be deposited into court when it appears that a health plan may have the right to reimbursement. But can a state court override the right of the health plan to recovery? This issue was addressed in Iowa Health System, Inc. v. Graham, 2008 WL 2959796 (C.D. Ill., July 30, 2008). (more…)
Adam V. Russo | September 26, 2008
On September 22, 2008 the Fifth Circuit issued its decision in Young v. Wal-Mart Stores, Inc., et. al.
The case involved an ERISA claim for accidental death and dismemberment (AD&D) benefits in the amount of $25,000. The decedent suffered from a history of severe hypertension. He stopped taking his medication, became very ill and began vomiting profusely and choked to death. The policy provided an exclusion for losses related “in whole or in part from…sickness.” (more…)
Adam V. Russo | July 14, 2008
You may have heard some grumbling about the recent case of Amschwand v. Spherion Corp., 2007 U.S. App. LEXIS 24435 (5th Cir. 2007). The facts of the case are as follows:
Thomas Amschwand was a participant in his employer’s ERISA benefits plan, which included life insurance benefits. The employer switched insurers after Thomas Amschwand was diagnosed with cancer. The new policy would not cover an employee unless and until that employee had worked one full day (post plan swap). According to the Amschwand’s attorney, they were never advised of the requirement. Unfortunately, Mr. Amschwand died without ever having worked a day after the employer had changed insurers. (more…)
Adam V. Russo | May 27, 2008
ERISA did not preempt a Louisiana Department of Insurance directive that limits insurer’s subrogation and reimbursement rights to cases where covered individuals have been “made whole”, the 5th U.S. Circuit court of Appeals ruled in Benefit Recovery Inc. v. Donelon, 2008 WL 642972 (5th Cir. March 11,2008). (more…)
Adam V. Russo | April 22, 2008
If the summary plan description (SPD) omits important provisions, such as subrogation and reimbursement, that are included in another document, the plan may not be able to compel beneficiaries to follow those provisions. In one such case, a federal judge shot down a plan’s denial after a participant refused to sign a subrogation agreement. The plan tried to impel him to sign the agreement before he had been treated for his injuries, but the SPD was silent on the issue of executing the agreement before submitting a claim. The plan document had the requirement that members must “execute and deliver such instruments and take such actions as the Plan may require to protect the Plan’s rights.” The court rejected plan arguments that inclusion of such language in the plan document complied with ERISA. (more…)
Adam V. Russo | March 26, 2008
Benefit Recovery, Inc. sued Louisiana Commisioner of Insurance and lost its case. See entire 5th Circuit Court of appeals decision.
Adam V. Russo | March 14, 2008
A Louisiana State Law requiring that insureds be made whole before an insurance carrier could seek reimbursement was upheld by the 5th Circuit, Benefit Recovery, Inc. v. Donelon, 2008 WL 642972 (March 11, 2008). Note that the decision only applies to plans that are not self-funded, but will apply to plans that are fully insured, and governmental plans, even if ERISA otherwise applies.
