Litigating Disability Insurance Claims - Conference Materials

661 views

Published on

This conference is your “one-stop” venue for the latest and most innovative material on today’s most pressing and contentious disability law issues, including how to wade through the complexities of filing a claim, how to recover benefits when faced with mounting obstacles, how to hone and sharpen the skills needed to protect your client’s interests, and how to successfully forge a defense against weak claims and overbroad discovery requests. Get all the practical tips, strategies and solutions needed for every stage of the claims process!

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
661
On SlideShare
0
From Embeds
0
Number of Embeds
195
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Litigating Disability Insurance Claims - Conference Materials

  1. 1. Innovative Pretrial Practice & Procedures Litigating Disability Insurance Claims American Conference Institute – January 24-25, 2013 Lee W. Marcus, Esq. Orlando, FL
  2. 2. Venue ERISA • Permissible Venue - 1132(e)(2)  An action “may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found”
  3. 3. Venue ERISA • Plaintiff advantage/Defense concern:  Forum shopping among circuits for favorable law • Favorable decisions on standard of review • Favorable decisions on scope of discovery • Favorable decisions on scope of evidence
  4. 4. Venue ERISA • Plaintiff advantage/Defense concern:   More convenient (and cheaper) for Plaintiff‟s counsel Less convenient (and more expensive) for defense BUT  Could be more expensive/inconvenient for Plaintiff at time of mediation/trial
  5. 5. Venue ERISA • FILE MOTION TO TRANSFER?  Knee-jerk reaction – YES Defense advantages: - Preferable case law in target district Less expensive/inconvenient for witnesses Preference for defense counsel/judges in target district Plaintiff‟s counsel may not be licensed in target district
  6. 6. Venue ERISA • FILE MOTION TO TRANSFER?  Reasons to consider not filing motion: - Expense of motion vs. likelihood of success - Preference for defense counsel/judge in original district - Tradeoff on other issues (e.g. scope of discovery)
  7. 7. Venue ERISA • MOTION TO TRANSFER  Forum non conveniens • • • • Location Location Location Location of of of of material witnesses corporate rep (for mediation/trial) employment adjustment of claim
  8. 8. Venue Non-ERISA    Proper venue USUALLY • Place where defendant does business • Place where contract was entered into or delivered • Place where alleged conduct occurred Can vary by state • E.g. PA - allows where Plaintiff resides Not aware of any that permit “where Plaintiff‟s lawyer does business/resides”
  9. 9. Venue Non-ERISA    If no contractual provision, selected venue could impact choice of law rule to be applied Federal Courts (diversity) apply choice of law rules of state in which case was first properly filed, regardless of transfer. Choice of law analysis is particularly important as it relates to claims for bad faith E.g. Pastor v. Union Central Life Ins. Co., 184 F.Supp.2d 1301 (S.D. Fla. 2002) E.g. Nichols v. Northwestern Mut. Life Ins. Co., 2012 WL 2498848 (9th Cir. 2012)
  10. 10. Venue Non-ERISA  State vs. Federal • Why Plaintiff Wants State/Why Defendants Remove      Less chance of SJ in state court More liberal discovery in state court More liberal deadlines in state court Plaintiff‟s counsel might not be licensed in federal court or have experience with Fed.R.Civ.P. In some jurisdictions, more sophisticated jury pool in federal court
  11. 11. Venue Non-ERISA  State vs. Federal • Why Plaintiff May Want Federal     Case will move to trial faster Less judicial tolerance for discovery abuses and delay Can plead for punitive damages from outset Procedural preferences over state court
  12. 12. Venue Removal of ERISA Cases  ERISA cases should ALWAYS be removed to federal court if filed in state court • State judges unfamiliar with law regarding:    Standard of Review Limitations on Discovery Limitations on Evidence • State judges are predisposed to state SJ standards
  13. 13. Venue Removal of ERISA Cases  Plaintiffs challenge removal based on: • Statutory Safe Harbor  29 USC 1003(b) • Governmental plan • Church plan
  14. 14. Venue Removal of ERISA Cases  Plaintiffs challenge removal based on: • Regulatory Safe Harbor  29 CFR 2510-3.1(j) • (1) Sponsor doesn‟t contribute to plan • (2) Participation in the plan is voluntary • (3) Sponsor doesn‟t endorse participation, but may allow publicizing and facilitate payment of premiums through payroll deductions • (4) Sponsor receives no consideration
  15. 15. Venue Removal of ERISA Cases  Burden of proving applicability of ERISA rests on removing party • Should attach supporting documentation to motion • • • • Affidavit from administrator or sponsor Group policy Summary Plan Description DOL 5500
  16. 16. Rule 56 vs. Rule 52 ERISA  RULE 56 • The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  RULE 52 • In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. . . Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses‟ credibility.
  17. 17. Rule 56 vs. Rule 52 ERISA  “ERISA” and “DISABILITY” and “RULE 56” in Allfeds • 2652 results  “ERISA” and “DISABILITY and “RULE 52” in Allfeds • 285 results • Fewer than half involved actual Rule 52 motions
  18. 18. Rule 56 vs. Rule 52  Reasons to move for summary judgment • Purely legal question    Release Statute of Limitations Policy Interpretation • 2 “bites at the apple” • “Sneak peek” at the other side‟s case
  19. 19. Rule 56 vs. Rule 52  Reasons for Rule 52 motion • Different standard on appeal creates greater finality • Creates vehicle for seeking oral argument and presentation of evidence  Particularly important in cases with surveillance
  20. 20. Rule 56 vs. Rule 52  Appellate Review • Rule 56  de novo review of trial court decision • Rule 52   de novo review of trial court‟s decision on which standard of review to apply “clearly erroneous” review applied to findings of fact and to application of law to facts
  21. 21. Rule 56 vs. Rule 52  Rule 52 appeals • “[A] finding [of fact] is clearly erroneous and reversible under Rule 52(a) only when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. If the district court's findings of fact are plausible in light of the record viewed in its entirety, the court of appeals must accept them even if it is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”  Childrey v. Bennett, 997 F.2d 830, 833 (11th Cir.1993) • “A finding of fact is not clearly erroneous unless „it is without factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made.‟ ”  Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.1990)
  22. 22. Rule 56 vs. Rule 52  Rule 52 appeals • District court only reverses decision if administrator was “unreasonable” • Circuit court only reverses District court if it‟s conclusion as to “reasonableness” was “reasonable” • Essentially, Circuit court will only reverse for procedural irregularities by trial court    Failure to apply proper standard of review Failure to adhere to proper procedure “Clear error” as to factual findings (very rare)
  23. 23. Rule 56 vs. Rule 52  “When there is conflicting evidence from which different inferences may be drawn regarding the reasonableness of a defendant's conduct, then what is reasonable is always a question to be determined by the trier of fact.” • Denham v. Sunoco, Inc. (R&M) 222 Fed.Appx. 687, 690 (10th Cir. 2007) Thus, the determination of “reasonableness” is a finding of fact, requiring “clear error” for reversal on appeal
  24. 24. Rule 56 vs. Rule 52  “The district court's finding that [the plaintiff] qualifies for long-term disability benefits is a finding of fact subject to the clearly erroneous standard of review. This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.” • Sloan v. Hartford Life and Acc. Ins. Co., 475 F.3d 999, 1005 (8th Cir. 2007) [citations omitted]
  25. 25. Rule 56 vs. Rule 52  “Those who wish to ensure that a judgment is treated with the deference due the result of a bench trial are advised to eschew Rule 56 and stick to Rule 52(a).” • Patton v. MFS/Sun Life Financial Distributors, Inc. 480 F.3d 478, 484 (7th Cir. 2007)
  26. 26. Innovative Pretrial Practice & Procedures Litigating Disability Insurance Claims American Conference Institute – January 24-25, 2013 Lee W. Marcus, Esq. Orlando, FL

×