Long Term Disability Law Blog

On June 15, 2009, Scott M. Riemer will lecture at the 12th National Advanced Forum on Resolving Disability Insurance Claims & Litigation in Boston. The conference is sponsored by the American Conference Institute. The conference will include speakers who are leading plaintiff and defense lawyers as well as top medical experts. The topic of my discussion will be "The Impact of MetLife v. Glenn on the Standard of Review and Discovery." Please take a look at ACI's website for more information, http://www.americanconference.com/Home.htm.

Click here for a copy of the conference brochure:
http://www.americanconference.com/litigation/Litigating_Disability_Insurance_Claims.htm

Last year, Scott M. Riemer spoke at the 11th National Advanced Forum in Boston. The topic of his discussion at that conference was "Standard of Review in ERISA Litigation in Light of MetLife v. Glenn."

In Jacoby v. Hartford, 254 F.R.D. 477 (S.D.N.Y. 2009), the Federal District in New York City ordered Hartford to produce thousands of pages of documents pertaining to Hartford’s inherent conflict of interest. Rejecting Hartford’s claims of confidentiality and burdensomeness, the Court ordered Hartford to respond to plaintiff’s interrogatories and document demands, including the full production of Hartford’s BMS Claims Manual and SIU Reference Manual. The Court also rejected Hartford’s claim that documents held by its consulting firms Medical Advisory Group and University Disability Consortium were not within its “possession, custody or control.”

This decision is a valuable precedent because it provides a possible solution to the dilemma of being whipsawed between the insurance company and its consultants. When seeking documents, each entity claims that the other has the sole duty of producing the requested documents. In this case, the Court rejected Hartford's assertion that the documents held by its consultants, Medical Advisory Group and University Disability Consortium were outside Hartford's control. The Court ordered Hartford to use its influence with its consultants to obtain the requested documents. The Court held:

In these circumstances, Hartford is directed to cause the production of the requested materials that are in the hands of UDC and MAG. Should it fail to do so, and should plaintiff press the point, a hearing concerning the relationships between Hartford and each of these entities and the nature of Hartford's efforts to secure their cooperation could prove necessary.

On January 12, 2009, Scott M. Riemer will receive the Public Education award of the New York City Chapter of the National Multiple Sclerosis Society. The Award is to salute Mr. Riemer for his volunteer services for Chapter members and for his pro bono efforts to make the procedures used for long-term disability insurance more equitable for those disabled by multiple sclerosis.

The Award will be presented at the Chapter's Annual Meeting and dinner to be held at the New York Marriott Marquis Hotel on January 12, 2009.

For more information about the NYC Chapter of the National MS Society, please click here: http://www.nationalmssociety.org/chapters/NYN/index.aspx

On December 2, 2008, Scott M. Riemer spoke at the ALI-ABA conference on "ERISA Benefit Litigation: From Pilot Life and Firestone to Glenn--Where are We Now." The conference was a Live Video Webcast from ALI-ABA's headquarters in Philadelphia, PA. Mr. Riemer represented the plaintiff's perspective on two ERISA litigation topics: "Procedural Nuts and Bolts;" and "Substantial Benefit Claims." Deidre A. Grossman, Esq. of Proskauer Rose LLP represented the defense perspective.

For more information on the conference, please go to the ALI-ABA website: http://www.ali-aba.org/index.cfm?fuseaction=courses.course&course_code=CP620

On November 3, 2008, Scott M. Riemer appeared as a Panelist at the NY, NJ and CT Regional Conference of the College of Labor & Employment Lawyers. The College is a non-profit professional association honoring the leading lawyers nationwide in the practice of labor and employment law. Mr. Riemer highlighted four paradigm shifts in ERISA law as a result of the Supreme Court's recent case MetLife v. Glenn:

1. Glenn describes a "combination-of-factors method of review" in order to determine whether a defendant has "abused its discretion." It does not describe the standard as the "arbitrary and capricious" standard of review. This represents a shift from the arbitrary and capricious standard of review, which has its basis in administrative law, to the abuse of discretion standard, which has its basis in trust law. This shift is important to claimants because trust law calls for much more scrutiny of a defendant's determination than administrative law.

2. Glenn establishes for the first time a priority of the competing goals and purposes of ERISA. Prior to Glenn, Courts have restricted discovery and judicial review on the grounds that extensive proceedings were inconsistent with ERISA's goals to: (a) avoid complex review proceedings; (b) avoid deterring employers from setting up benefit plans; and (c) allowing employers to administer their own plans. The Glenn Court held, "As to all three [of those goals] taken together, we believe them outweighed by Congress' desire to offer employees enhanced protection for their benefits." Courts will now focus more on protecting the rights of employees.

3. Glenn shifts the presumption that a tie goes to the defendant. Glenn holds that a defendant's conflict of interest could "act as a tiebreaker when the other factors are closely balanced." This is hugely important to claimants because in many of the cases that make it to litigation the other factors are closely balanced. Thus, instead of a victory in favor of defendant, Glenn supports a victory in favor of the claimant.

4. Glenn specified that there should be no "special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict." Prior to Glenn, the Courts established elaborate procedures for dealing with a defendant's conflict of interest. These rules often made it difficult for a claimant to present the insurer's conflict of interest as an issue in the case.

As a result of these paradigm shifts, the law will enter a period of uncertainty as the lower courts parse through what is still good law. Overall, however, Glenn appears to be very good news for claimants. Claimants will be provided with increased discovery and Courts will provide much closer scrutiny of insurance company determinations.

We believe that the MetLife v. Glenn standard of review may turn out to be better for plaintiffs than the de novo standard of review. This is because a de novo review focuses exclusively on the evidence of disability, whereas the Glenn standard also focuses on an insurer’s conduct. In MetLife v. Glenn, the Supreme Court upheld a "combination-of-factors method of review." Under such a standard, "any one factor (even the insurer's inherent conflict of interest) will act as a tiebreaker when the other factors are closely balanced."

Glenn's focus on the insurer's conduct will be crucial in the average case that reaches litigation, where the record includes both evidence submitted by the claimant supporting disability and evidence procured by the insurer militating against disability. Under the de novo standard, the Court will weigh that evidence, with plaintiff having the burden of establishing disability by a “preponderance” of the evidence. When the evidence is evenly balanced, it is far from certain that the plaintiff will establish this burden.

Under the Glenn standard, however, the Court will take into account a conflicted insurer’s own conduct. As the Court states, “ERISA imposes higher-than-marketplace quality standards on insurers.” Accordingly, instead of evenly weighing the medical evidence and deciding whether the claimant satisfied his or her burden, the Glenn standard requires the Court to look at the insurer’s evidence with a degree of skepticism. To a judge with no medical background being asked to make a medical determination, this may tip the balance. In other words, when there is evidence on both sides (as there is in most cases in litigation), the insurer’s conflict will taint the insurer’s evidence and thereby serve as a tiebreaker in favor of the claimant.

On July 17, 2008, Scott M. Riemer served as a faculty member on a live webcast sponsored by the Practicing Law Institute. The topic of the webcast was the "A New Firestone Drill under ERISA: MetLife v. Glenn." Please take a look at PLI's website for more information. http://www.pli.edu/product/webcast_detail.asp?id=49490

On June 19, 2008, the Supreme Court issued its long awaited decision in MetLife v. Glenn. The Supreme Court held that Courts must consider an insurer's conflict of interest as one of the factors when deciding whether an insurer's determination was an abuse of discretion. Most importantly, the Supreme Court established that the conflict of interest may serve as a tiebreaker when the other factors are closely balanced. As a practical matter, this could have a huge impact. Prior to MetLife v. Glenn, close cases usually were decided in favor of the insurance company. Now, the opposite may prove true. Stay tuned. The next few years of litigation will be quite interesting.

On June 12, 2008, Scott M. Riemer will lecture at the 11th National Advanced Forum on Resolving Disability Insurance Claims & Litigation in Boston. The conference is sponsored by the American Conference Institute. The conference will include speakers who are leading plaintiff and defense lawyers as well as top medical experts. The topic of my discussion will be "Standard of Review in ERISA Litigation in Light of MetLife v. Glenn." MetLife v. Glenn, which will be decide by the Supreme Court this term, is expected to be the most important ERISA case in the last 20 years. Please take a look at ACI's website for more information, http://americanconference.com

Click here for a copy of the conference brochure:
Download file

Last year, Scott M. Riemer spoke at the 10th National Advanced Forum in Boston. The topic of his discussion at that conference was ""Developments in ERISA Claims Handling and Litigation."

On March 27, 2008, Scott M. Riemer filed an amicus brief on behalf of the NYC Chapter of the National Multiple Sclerosis Society in the case of MetLife v. Glenn, now pending in the U.S. Supreme Court and waiting for oral argument on April 23, 2008. The brief of the Chapter was proudly filed on a pro bono basis by Riemer & Associates, LLC and Jonathan Feigenbaum.

MetLife v. Glenn is a potentially landmark case, which will address how much deference, if any, a court should give the determination of an insurance company that has an inherent conflict of interest, i.e., when the insurance company both decides claims and pays benefits.

The Chapter's brief argues that Article III of the Constitution requires that Ms. Glenn receive a de novo plenary proceeding; that granting any level of deference to the determination of a conflicted insurance company would constitute an unconstitutional relegation of judicial power.

A copy of the brief could be obtained by clicking here. Download file

New York has always been a regressive State for insurance claims. Not any more. On February 19, 2008, New York's highest Court issued a decision in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York that dramatically changed the legal landscape. An insured can now assert a claim against an insurance company for violation of an implied covenant of good faith and fair dealing. Therefore, if an insured can establish that the insurance company denial was in bad faith or that there was no reasonable basis for the denial, the insured can recover not only the insurance benefits at issue, but also reasonably foreseeable damages.

This new relief will help fully compensate plaintiffs when insurance companies improperly deny their claim for benefits. It will also help deter insurance companies from inappropriately denying meritorious insurance claims in the first place.

The Supreme Court agreed to hear MetLife's appeal in MetLife v. Glenn. This will perhaps be the most important Supreme Court decision in the area of long term disability claims in decades.

On January 18, 2008, the Supreme Court agreed to decide whether the arbitrary and capricious standard of review should be tempered or abandoned if the insurance company both decides the claim and pays the benefits. Right now, the Circuit Courts of Appeal have widely different standards. In the Second Circuit, where we practice, such a conflict has no impact on the standard of review. The standard of review is only switched if a plaintiff can demonstrate that the insurance company's conflict of interest in fact influenced the claim determination. Because that is extremely difficult to establish, no plaintiff has ever been able to switch the standard of review based on a conflict of interest. In other Circuits, such as the Third Circuit, the Court will apply a heightened standard of review in the event of an inherent conflict. In Glenn v. MetLife, the Sixth Circuit held that the District Court committed reversible error because it failed to take into account that MetLife was both decider and payor of the claim.

Given the existing standard in the Second Circuit, we are cautiously optimistic that no matter how the Supreme Court decides MetLife v. Glenn, plaintiffs within the Second Circuit will benefit.

On October 24, 2007, I lectured at a Special Workshop on long term disability benefits held in the New York City offices of Friends in Deed. The title of the lecture was "Long-Term Disability Benefits in Danger: Disturbing Trends and Dirty Tricks. This was in conjunction with Per Larson, a financial planner. Friends in Deed is a nonprofit organization in New York City that serves as a crisis center for individuals suffering from life-threatening illnesses. Their website is located at www.friendsindeed.org.

At the workshop, I focussed on the top ten sleezy practices of disability insurance companies. They are:
1. Losing your documents.
2. Misrepresenting conversations with your doctor.
3. Cherrypicking your medical records.
4. Requesting Functional Capacity Evaluations that have no scientific validity.
5. Insisting on objective evidence of pain and fatigue.
6. Evaluating your claim solely on the basis of a "peer review."
7. Characterizing your occupation as sedentary and ignoring its cognitive demands.
8. Moving the goal posts.
9. Putting a wedge between you and your doctor.
10. Pressuring an insured to take a low lump sum settlement.

For more information on the sleezy practices of insurance companies, please see the obtaining benefits section of our website.