The Friday Five: Five Current ERISA Litigation Highlights – May 2019
This month's Friday Five covers cases addressing what constitutes a self-inflicted injury under an AD&D policy, the intersection of choice of law provisions and preemption, a cautionary decision about subjective pain cases, discovery into medical reviewers, and what constitutes futility in the context of allegations of failure to exhaust.
The Saul Ewing Arnstein & Lehr Employee Benefits/ERISA Litigation Team
- Is death caused by autoerotic asphyxiation an "intentionally self-inflicted injury?" Yes, according to the Seventh Circuit. Autoerotic asphyxiation is a sexual practice by which a person purposefully restricts blood flow to the brain to induce a feeling of euphoria. Decedent Linno Llenos died engaging in autoerotic asphyxiation. His widow and beneficiary, LeTran Tran, filed a claim with Minnesota Life Insurance Company, seeking the proceeds from Llenos’s ERISA-governed insurance policies. Minnesota Life paid her life claim but denied coverage under Llenos’s Accidental Death & Dismemberment policy riders. Minnesota Life determined Llenos's death was not accidental and fell under a policy exclusion for deaths resulting from "intentionally self-inflicted injury." The district court reversed, ruling that Llenos’s death qualified as an accidental death and did not result from an intentionally self-inflicted injury. On appeal, the Seventh Circuit rejected the notion that the act of strangling oneself can be severed into distinct phases (asphyxiation and hypoxia), and instead found that "there was no intervening cause, and no break in the chain of causation: one act of autoerotic asphyxiation caused the hypoxia that killed the decedent” and therefore “strangling oneself to cut off oxygen to one’s brain is an injury." The court also rejected the notion that sexual intent of the act was relevant. "When that injury kills, it is an intentionally self-inflicted injury which resulted in death, regardless of whether it was done recreationally or with an intent to survive." This decision is best read for its discussion on what constitutes an injury. Tran v. Minn. Life Ins. Co., No. 18-1723, 2019 WL 1894769 (7th Cir. Apr. 29, 2019).
- Does a plan’s choice-of-law provision undercut the implementation of ERISA? No, according to a report and recommendation out of the Middle District of Florida. If a plan satisfies the statutory definition of an employee welfare benefit plan, then ERISA applies regardless of any choice-of-law provisions. Here, the plaintiff worked as a sales and marketing associate for AIM Insurance Group, Inc. AIM provided group long-term disability insurance coverage to its employees, through a policy issued by the defendant, Reliance Standard Life Insurance Company. Seeking to enforce certain rights under the policy, the plaintiff filed suit in state court requesting declaratory and injunctive relief, and alleging a breach of contract. Reliance removed the action to federal court, arguing that the plan is covered by ERISA. In moving to remand, the plaintiff argued that federal jurisdiction is lacking because the plan is governed by Florida law. In rejecting the plaintiff’s claim, the district court held that although “choice-of-law provisions may be relevant to the extent that they define the extent of an insurer’s liability” such provisions do not “undercut the uniform implementation of ERISA’s text or its attendant case law.” Therefore, because this was an action to recover benefits from an employee welfare benefit plan, removal was proper. This decision is best read for a refresher on what constitutes an employee welfare benefit plan. Morrisson v. Reliance Standard Life Ins. Co., No. 8:18-cv-2948-T-30JSS, 2019 WL 1795595 (M.D. Fla. Apr. 9, 2019).
- If a person continues to work for years after a motor vehicle accident, can the person still point to that accident in a later claim for disability? Yes, according to the Middle District of Florida. In 2015, the plaintiff submitted a claim for disability. The plaintiff’s claim was based on debilitating pain due to injuries that resulted from a 2012 motor vehicle collision. Because the plaintiff continued to work as a dentist for three years after the motor vehicle collision, his claim was denied. In a sharply worded decision, the district court made clear that "there is no requirement that Plaintiff suddenly become disabled immediately prior to making a claim under the Policy. Plaintiff must merely be disabled at the time the claim is made and for the following elimination period." In this case, the court concluded that there was "uncontradicted evidence supporting the conclusion that Plaintiff was likely disabled and practicing dentistry in a potentially unsafe manner prior to finally admitting that he needed to stop." The court also believes that "Defendant's behavior suggest[ed] that its goal was to find a way to deny Plaintiff’s claim. And such behavior indicates that the conflict of interest created by Defendant’s financial incentive to deny the claim clouded Defendant’s judgment." If you have a subjective pain case, read this decision. Kaviani v. Reliance Standard Life Ins. Co., Case No. 6:16-cv-2061-Orl-41DCI, 2019 WL 1759245 (M.D. Fl. Mar. 27, 2019).
- Facing discovery regarding your medical reviewers under a de novo standard? Read Shaikh v. Aetna Life Insurance Company. In Shaikh, the plaintiff sued the defendant, Aetna Life Insurance Company, under ERISA, seeking reversal of Aetna’s termination of his long-term disability benefits. The plaintiff alleged the termination was due to a "biased" physician review conducted by Dr. Timothy Craven. The plaintiff sought discovery into "the neutrality and credibility of Dr. Craven." Specifically, "the first two interrogatories [were aimed] at the issue of bias, the idea being that Craven is effectively on Aetna's payroll, so his medical opinions are warped in the company's favor. The third interrogatory [sought information] showing that Craven hardly ever actually treats patients, as corroboration that he is not really an independent physician but a paid shill for Aetna." In the court’s view, "[e]ven if it is true that Craven worked for Aetna a lot, and therefore they have paid him a lot, that sounds like the routine case, not the exceptional one. And the threshold allegations that Craven’s medical opinion is contrary to the weight of the administrative record is something ERISA plaintiffs often allege. It’s not exceptional either… Here too, if Shaikh's allegations are correct that Craven’s opinion is inconsistent with the medical evidence, the court can just disregard the opinion on de novo review. Why Craven made the wrong judgment call, if he did, is neither here nor there." Shaikh v. Aetna Life Insurance Company, Case No. 18-cv-04394-MMC (TSH), 2019 WL 1571876 (N.D. Cal. Apr. 4, 2011).
- Facing a futility argument in a claim for supplemental life insurance? Read Gadsby v. United of Omaha Life Ins. Co. In Gadsby, the plaintiff was the beneficiary of a life insurance policy belonging to her former fiancé, decedent Richard Lounsbury. The decedent began working for Facility Solutions Group, Inc. (FSG) on April 30, 2013. At this time, the decedent received $10,000 in basic life insurance coverage through a United policy as an employment benefit. Subsequently, in 2015, the decedent purchased $200,000 in voluntary life insurance coverage under a United group policy. Between January 2016 and the decedent’s death, FSG regularly deducted life insurance premiums from the decedent’s paycheck for the supplemental life insurance benefits and remitted those premiums to United. On January 23, 2017, the decedent passed away at the age of 37. Shortly after the decedent’s death, an FSG representative completed a Proof of Death Claim Form for the decedent and indicated on that form that the decedent had $10,000 in basic life insurance benefits and $200,000 in voluntary life insurance benefits. The plaintiff filed claims for these benefits. United paid $10,000 in basic life insurance benefits, but denied the plaintiff’s claim for voluntary life insurance benefits because United had not received evidence of insurability (EOI) for the policy. United advised the plaintiff that the decedent had been required to submit an EOI because he had elected to enroll in the supplemental insurance more than 31 days after he became eligible for insurance. After United denied coverage, FSG refunded the voluntary life insurance premiums that it had collected from the decedent. The plaintiff did not appeal the denial of coverage, alleging that an appeal would have been futile because the decedent had not submitted EOI (that fact was not in dispute). But, in further support of her futility argument, the plaintiff claimed that the defendants never notified the decedent that he needed to submit EOI and never asked him for it. This lack of notice, combined with the periodic collection of life insurance premiums, led the decedent and the plaintiff to reasonably believe that the decedent was covered. The district court held that "while Plaintiff's allegations of futility are sparse, they nevertheless reasonably suggest that United had a fixed and unwavering policy of denying benefits when EOI had not been submitted as required by the Policy, irrespective of whether United had been collecting premiums without notifying the plan participant of the EOI requirement." And for this reason, United’s motion to dismiss for failure to exhaust was denied. Gadsby v. United of Omaha Life Ins. Co., Case No. 18-2214, 2019 WL 1405845 (E.D. Pa. Mar. 28, 2019).