OK, so you have gone through the insurance company’s appeals process, and they still have denied your claim. You feel that your claim is justified or you wouldn’t have filed it in the first place. So, now the only thing you can do to prosecute your claim is to file suit. But, an ERISA case is not like other cases you may be familiar with. In an ERISA case, you don’t get your “day in court”, you don’t get to introduce evidence, call witnesses or cross examine the insurance company’s witnesses. An ERISA case is a wholly different case, and some would say it is patently unfair and that the cards that were stacked against you in the administrative appeal process have not been reshuffled - they are still stacked against you. But, all hope is not lost, there are still ways of winning, and a competent ERISA attorney will find ways to navigate through the mine field that is ERISA litigation. >Read More<
1. Suit is filed:
A suit must be filed in a United States District Court - a federal court. A suit filed in a state court will usually not be dismissed, but will be “removed” to federal court. The complaint must meet certain pleading requirements and federal courts scrutinize them very carefully to be sure that they do.
2. The complaint is served:
The complaint is served on the insurer. In some jurisdictions, you can only sue the “plan” and that creates problems, though not insurmountable ones. The “plan usually doesn’t have a separate existence and often is nothing but the policy. The complaint is served by you (or your lawyer, assuming that you have retained one) by certified mail. The court will generate a “summons” that is served on the defendants along with the complaint.
The defendants have 21 days to file their answer, but, because ERISA complaints tend to be pretty long and involved, they usually ask for and get an extension of time to file.
3. The Answer is Filed:
The defendants file their answer and/or other responses. They may file a “Motion to Dismiss for Failure to State a Claim on which Relief May be Granted.” These are not usually successful if the attorney who filed the suit is competent and pleaded all the necessary allegations artfully. Even if successful, the court will generally give the plaintiff (you) a short period of time to amend the complaint to cure the defect. So, this is rarely anything but a delaying tactic. But, at some point, they will file an answer.
4. Standard Orders:
Most courts have standing orders for ERISA cases. Since “discovery” is not automatically allowed, a standing order will typically order the parties to meet and discuss the necessity of discovery and whether they can agree on what should be in the administrative record. If the parties to the suit cannot agree on one or more of these items, they are ordered to file motions with memoranda of law to support their positions.
Either by agreement or by court order, the parties will arrive at a decision about what the administrative record contains, and that will be filed with the court
5. Administrative Record:
The Administrative Record is the only evidence the court will consider. The administrative record consists of:
The Policy, if that is a separate document
The Summary Plan Description
Your claim for benefits
All Medical records
All correspondence regarding your claim for benefits
Internal insurance company reviews, records, reports, analyses, etc.,
Information regarding "other benefits" (Social Security, etc.) you applied for or received,
Employment records describing your employment and job description,
Original Denial Letter
Your Appeal of the original denial
Appeal Denial Letter
6. Scheduling Conference or Scheduling Order:
Within 90 to 120-days after the complaint is filed, the court will hold a scheduling conference or issue a scheduling order. Some courts issue scheduling orders without conferences; some courts have scheduling conferences to work out the scheduling order. The scheduling order will contain:
Dates for filing motions
Dates for hearings on motions
Deadlines for filing briefs
Date the matter will be submitted to the court for decision
7. Standard of Review:
The above schedule is based on the standard of review that applies in most cases, the >“Abuse of Discretion”< standard. In the very few cases where the >de novo< standard applies, there will be a different schedule, usually longer and more involved discovery periods, deadlines to file pretrial statements, and a trial date.
Discovery. This is the term that applies to the process of finding out what the other side’s case is. Law suits are not tried by surprise and ambush, like in the days of the old west. The modern thought is that justice is better served if all parties have a reasonable opportunity to “discover” the evidence against them so that they can decide to settle or to marshal evidence to counter that of the other side.
There are generally two kinds of discovery: written and depositions. Written discovery consists of:
Interrogatories. These are questions that one side sends to the other and the other side is required to answer. A typical interrogatory is something like this: “Please identify every person in your employee who was involved in the decision of this claim, or on whose advice you relied to reach the decision in this claim, and provide a curriculum vitae for each.”
Requests for Production. These are just what they sound like. One side asks the other side to produce documents that are relevant to the claim, such as “Please produce all documents that contain any information on which you relied in reaching the decision in this claim.”
Requests for Admissions. These are similar to interrogatories, but are questions that can only be answered yes or no, such as “You are requested to admit that you received a medical report from Dr. Gooddoc dated the 12th day of November, 2008.”
Depositions are sworn testimony just like in court, but with no judge present. All parties are represented at a deposition and each of them has an opportunity to ask questions. The testimony is taken down by a court reporter and then transcribed in booklet form. Depositions can be used in court in lieu of live testimony, and can be used to “impeach” witnesses (that is to confront a witness with previous sworn testimony that is different from the testimony given in court.
Discovery in ERISA cases is very limited, and may not be permitted at all. If it is allowed, it is confined to discovering evidence that will prove the insurance company’s bias, conflict of interest, failure to follow procedures, or failure to provide a full and fair review of the claim. It will not involve you, your medical history or condition.
9. Mediation/Settlement Conferences:
In many jurisdictions, settlement conferences and/or mediation is mandatory in every case. In others, it can be ordered on a case-by-case basis. A settlement conference involves only the parties and their lawyers. They meet and confer about settlement, usually making offers and counter offers. A mediation is similar, but it also involves a third party neutral party who facilitates the settlement process. The mediator is not a decision maker, and will not make any decisions or recommendations. His or her job is to help the parties come together to settle the case. All sides to a law suit have good points and bad points. Litigants tend to focus on the arguments that support their case, and don’t dwell on the evidence or law that is unfavorable to them. A good mediator helps the parties focus on the downside of their own case, and what could happen if they lose. Good mediators often get people to the settlement table a lot quicker than they otherwise would
10. Summary Judgment Motion:
If the case does not settle, in some jurisdictions, the insurance company files a motion for summary judgment (this is actually a misnomer, but it is what most people call the motion that is filed). In those jurisdictions, some attorneys simply file an opposition to the motion. We will always file a cross motion for summary judgment and oppose the insurance company’s motion. In others, the court’s standard order requires that both parties file their motions simultaneously.
In devovo cases, the case proceeds to trial. The judge, sitting without a jury decides the case. In the typical case the evidence consists solely of the administrative record, and if discovery has been allowed, evidence of insurance company’s bias or conflict of interest.
If you win the trial, you will be awarded all past due benefits with interest and your insurance company will be ordered to reinstate your future benefits. The insurance company may also be ordered to pay all or a portion of your attorney’s fees.
Any party who doesn’t like the trial judge’s decision may file an appeal to a circuit court of appeal. There are 12 courts of appeals (1st through 11th Circuits and the DC Circuit). There are other specialized courts of appeal like the court of appeal for veterans claims, but they don’t concern us here.
You may have noticed that I have mentioned that some courts do things one way and others do it differently. That is usually because the courts are in different appellate court jurisdiction. The courts of appeals decide the law within their jurisdiction and sometimes there are conflicts between the circuits. For example, in some circuits, a claimant may continue to submit evidence to the administrator after the final appeal. Those circuits allow the courts to look at anything that was submitted before suit was filed and that the administrator had a fair opportunity to review. Sometimes the Supreme Court steps in and issues a ruling to resolve those conflicts, but not always. The example given above has existed at least since 1999 and the conflict remains.