May 5th, 2015

Accidental Death and Disability (AD&D) policies cover loss caused by “accident.” Accident is generally defined by the courts as an “unexpected and unintended” occurrence. Thus though injury from a medical procedure may be part of the normal risk of the procedure (and thus not unexpected) injury due to the negligence of the doctor is never expected or intended and thus is classified as an accident.

Nevertheless insurance companies typically deny claims for AD&D benefits arising out of medical malpractice. This is often due to an exclusion in most policies for loss caused by sickness or the treatment thereof. However, depending on the actual policy language and the specific facts of the case, we have been able to obtain coverage despite the medical treatment exclusion. As an example we have had several cases where death was caused by the toxic interaction of medication prescribed by a physician or where the amount of a single medication prescribed became fatally toxic.

The California Insurance Code limits the manner in which insurance companies can exclude losses caused by prescription medication.  Insurance policies that are written for distribution throughout the country often fail to comply with individual state’s requirements.  Additionally at times the policies themselves become ambiguous when they specifically indicate they cover certain losses but then turn around in a later section and claim that they exclude the same losses. Since the insurance company created the policy any ambiguities in the policy must be interpreted in favor of coverage.

The bottom line is that if you believe you may have a claim under an AD&D policy do not be satisfied with the explanation of an insurance company when they deny your claim. Seek out an attorney experienced in life and AD&D insurance to provide you their perspective. These evaluations are, at no charge to the client.  Therefore, you have nothing to lose.

February 11th, 2015

Our Client’s Husband, who had a history of alcohol issues, died following an evening of binge drinking.  The coroner’s office classified the manner of death as “accidental” and the cause of death as “acute alcohol intoxication.”  The Husband had two insurance policies that promised benefits to his wife if he died as a result of an accident. Our client submitted a claim to each of the insurance companies and both denied coverage under an exclusion for loss caused by “sickness or disease.”  Both insurance companies claimed that a contributing factor to decedent’s death was his alcoholism which they asserted excluded coverage.

After obtaining clarification from the San Diego County Medical Examiner that decedent’s death was due to “acute” alcohol intoxication and not from his “chronic” alcoholism (which can cause serious medical issues like liver disease), we submitted an appeal to both insurers on behalf of our client.  One insurer, LINCOLN NATIONAL, responded by paying the accidental death benefits.  The second insurer, CIGNA, responded by reiterating its denial by asserting that decedent drank the amount of alcohol that resulted in this death because “alcoholics can’t stop drinking.”

With the assistance of our own medical consultant, we pointed out the absurdity of CIGNA’s position.  To suggest that an alcoholic cannot stop drinking because of his “alcoholism” would mean that every alcoholic would die at a very young age due to their inability to stop drinking.  This of course is not the case.  There are numerous reasons why an individual may drink to excess on a particular occasion.  None of these potential causes were investigated by CIGNA.  CIGNA just assumed that his drinking problem caused him to drink, on this one particular day, more than his body could handle.

Both insurance carriers initially denied the claim.  After submitting an appeal, LINCOLN looked at the evidence and concluded that the claim was covered.  CIGNA, on the other hand, ignored the evidence and looked for excuses to deny the claim.  This has resulted in a lawsuit against CIGNA, which we believe will result in payment of the claim.

Denials of Accidental Death claims, due to the standard exclusion for death caused by “sickness or disease or the treatment thereof” are often improper.  If you find yourself in the unfortunate situation of our client in this case, make sure to consult with an experienced attorney to help you with your claim.

November 20th, 2014

The Ninth Circuit Court of Appeals in Salomaa v. Honda LTD Plan 637 F.3d 958 found that CIGNA’s Insurance Company’s decision to deny disability benefits to a claimant with chronic fatigue syndrome was illogical, implausible and without support because:

  • Every doctor who personally examined the insured concluded that he was disabled;
  • The Plan Administrator demanded objective tests to establish the existence of a condition for which there are no objective tests;
  • The Administrator failed to consider the Social Security Disability Award;
  • The reasons for denial shifted as they were refuted, were largely unsupported by the medical file, and only the denial stayed constant;
  • The Plan Administrator failed to engage in the required “meaningful dialogue.”

The Court found that in a disability claim that turned upon subjective evidence, such as the amount of a claimant’s pain and fatigue, it was an abuse of discretion for the insurer to rely solely upon doctors who merely reviewed the records without examining the patient when there was a uniformity of agreement by treating physicians what the individual was disabled.

Another important feature of the case was the Ninth Circuit confirming that CIGNA’s physician report is one of the documents that the Plan is required to provide the claimant as part of its duty to provide a full and fair review.  Most importantly, the Court held that these physicians’ reports must be provided prior to a final determination.  This allows the claimant or his/her physician to comment on or rebut the insurer’s physician report prior to a final determination on appeal.

November 19th, 2013

Our client’s husband died after falling and hitting his head on their back patio.  The trauma caused a subdural hematoma which became mortal in less than four hours.  The death certificate classified the death as “accidental.”  The “immediate cause” of death was listed as “subdural hemorrhaging from blunt force injury to head” and a “contributing condition” was listed as “thrombocytopenia.”

Client submitted a claim to UNUM Insurance Company for benefits under an accidental death policy.  UNUM denied the claim based on a limitation in the policy that excludes coverage for accidental losses “caused by, contributed to by,  or resulting from diseases of the body.”  The disease cited by UNUM was thrombocytopenia, which was most likely a consequence of decedent’s recent bone marrow transplant performed as treatment for his carcinoma.   Thrombocytopenia is a condition that results in excessive bleeding, which UNUM asserted substantially contributed to the subdural bleeding resulting in death.

Stennett & Casino obtained a statement from the medical examiner’s office that supported their client’s position.  In effect, the medical examiner stated that though decedent’s condition of thrombocytopenia may have contributed to the bleeding there was no evidence with which one could say that decedent would have survived the fall in the absence of the thrombocytopenia.  Despite this evidence UNUM continued its denials.  Stennett & Casino filed suit on behalf of their client which resulted in a settlement of the claim.

July 25th, 2012

Our client was in a serious auto accident at the age of 22, which confined him to a wheelchair due to serious back injuries.  Despite his serious disability, he returned to school to learn computer programming.  He successfully returned to the workforce and became a program manager for Oracle Corp.  Due to a combination of his serious back injuries and the wear and tear after 17 years of working as a computer programmer and manager, his back finally gave out, precluding him from working full time.  He applied for and received long term disability benefits.

Four years later, on December 23rd, the insurance carrier placed our client under video surveillance.  The video showed him Christmas shopping with his wife for several hours.  Client was driving with his specially equipped vehicle, getting in and out of his car into his wheelchair and going to various stores.  Based on the video and client’s refusal to take constant pain medication, his benefits were terminated.  Stennett & Casino had our client tested through a Functional Capacity Evaluation and had his doctor prepare additional reports; however, the insurance company refused to pay additional benefits.   We filed a lawsuit in Federal Court and the court found in our client’s favor.  In referencing the surveillance video the court noted that “the plan does not require a claimant to be utterly helpless in order to be eligible for disability benefits…and plaintiff would hardly be the only person overtaxing his abilities when shopping on December 23rd.”

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