]]>
Riemer presented on the topic of "Practical Tips to Make Conflict of Interest Discovery Work for You and Tips to Defend Against its Impact; A View from Both Sides of the Bench."
For more information about the Symposium, click here.
]]>The Conference was held at the offices at Legal Services NYC. The attendees were predominately public service attorneys.
]]>United Policyholders, a non-profit consumer organization which advocates for fairness in insurance transactions, asked Scott M. Riemer to write comments on the proposed regulations to the NY Insurance Department.
Mr. Riemer argued that discretionary clauses are particularly unfair because insurance companies do not provide claimants with adequate notice of their impact. The typical policy does not explain to the insured (or even the insured's employer) that the inclusion of the discretionary clause will greatly limit the insured's right to judicial review; that the insured's claim will be restricted to the administrative record and that the court will only search the file to determine whether there is substantial evidence in support of the insurer's determination. Mr. Riemer explained that in his experience prospective litgants are often shocked when he explains to them the impact of the discretionary clause.
]]>The Insurance Department is seeking comments from the public, which must be sent to the Department by May 5, 2010. We encourage everyone to contact the Department to express your support. Emails may be sent to dkullman@ins.state.ny.us
At Riemer & Associates, we are experiencing the same trend. As a result, we are adding staff in order to service the increased workload. We are also moving our offices to a larger suite. Our new address as of January 1, 2010 is Riemer & Associates, LLC., 60 East 42nd Street, Suite 1750, New York, New York, 10165.
It has been our experience that there are many individuals with chronic illnesses who are having increasing difficulty in managing the increased demands and pressures of the current business environment. We help these individuals with their exit from work and assist them in completing the paperwork required for a disability claim.
For more information about our claim services, click here.
]]>The lawsuit was subject to the Employee Retirement Income Security Act ("ERISA"). Under ERISA, the Court may in its discretion award the plaintiff with reasonable attorney fees. Fees are usually awarded if the plaintiff prevails and establishes that: the defendant's conduct was culpable; the merits of the lawsuit favored the plaintiff; and the award of fees would deter other defendants from similar action in the future.
In awarding the requested fees in this action, the Court awarded fees at Mr. Riemer's current hourly rate of $560; the associate hourly rate of $340; and the paralegal hourly rate of $180.
Please note that prior results do not guarantee a similar outcome.
]]>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."
]]>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.]]>
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
]]>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
]]>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.
]]>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 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.
]]>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."
]]>