ERISA Disability and Life Insurance Litigation
Oral arguments from various courts of appeal across the federal circuits involving long term disability or life insurance claims governed by ERISA.
The podcast is a production of Ben Glass Law, a national long term disability and life insurance law firm headquartered in Fairfax, VA.
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ERISA Disability and Life Insurance Litigation
Your Employer Switches Insurance Companies for Disability - Can You Recover from Both Policies?
Before her health issues, the claimant was a distinguished attorney in Birmingham.
Unfortunately, she developed chronic pain syndrome, fibromyalgia, and lumbar disc disease, conditions that deeply affected her professional life and daily functions.
She applied for an began receiving disability benefits under her firm's LTD policy with Sun Life.
That policy was replace by a new policy from Hartford. The new Hartford policy contained an exclusion clause specifying that a member of the firm was ineligible for disability-insurance payments if she was receiving “benefits for a Disability under a prior disability plan that: 1) was sponsored by [her] Employer; and 2) was terminated before the Effective Date of The Policy.”
Because Sun Life was still paying Stewart disability benefits, Hartford found that Stewart was “receiving benefits for [a] Disability under a prior disability plan” that had been “terminated” before its own policy went into effect and, consequently, that she wasn't eligible for Hartford disability benefits.
The claimant contended that plan documents permitted her to recover under both policies. The District Court agreed with Hartford and this is the argument in the 11th Circuit Court of Appeals
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But if we are in deference land, can we say that Hartford's interpretation of that was an abuse of discretion or is not worthy of deference? It seems to me not totally unreasonable. I'm not sure you're wrong if we were talking de novo, but I'm not sure that their interpretation is unreasonable.
Speaker 2:Welcome to this podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long-term disability law firm with headquarters in Fairfax, Virginia. This is a case of the day, which is 21-11-919.
Speaker 1:Carol Stewart vs Hartford Life and Accident. Good morning, the panel is here for Mr Nyman. Mr Burke, I understand that you'll be presenting the argument from Council Table, which is A-OK with us. Thank you, you're welcome, absolutely, and whenever you're settled and ready, no hurry.
Speaker 3:Just give me one second, no it's all good.
Speaker 1:May it please the court. My name is Peter Burke. I represent the plaintiff Carol Stewart as the court may know.
Speaker 3:Ms Stewart was diagnosed with Parkinson's disease back in 2007, and she has fought that disease and is debilitating the effects, both cognitive and physical, for the last 15 years. Ms Stewart is sitting behind me on the bench. She has also been fighting with Hartford for the last 10 years to secure her LTD benefits away with premium benefits, which is rightly owed under the policy. We are dealing with an orisa cases panel, I realize, and therefore we have to look at the issues through the orisa format.
Speaker 2:Ms.
Speaker 3:Stewart raised the district court level several procedural errors Several times. We believe that those errors were sufficient to take this case out of any deferential review for Hartford. The district court itself and the Ontario decision followed the second circus decision of Halo versus the new Haven health plane and found that one of these violations was sufficient by itself to take away any deference. We believe that occurred here. We've also raised an issue with the district court's partnership analysis. We believe that the court is not properly do toned in the review. Instead, if you're more of a comparison he said, she said set forth Ms Stewart's position, set forth Hartford's position and eventually gave deference to Hartford's interpretation and adopted that as its own.
Speaker 1:So let me ask you this so can we start with the LTD? I know there are two different things going on here, but if we start with LTD, I'll confess I think you may be onto something, with the distinction that you draw between plan and policy in the relevant language. But if we are in deference land, can we say that Hartford's interpretation of that was an abuse of discretion or is not worthy of deference? It seems to me not totally unreasonable. I'm not sure you're wrong if we were talking to Novo, but I'm not sure that their interpretation is unreasonable.
Speaker 3:I believe that Carissa requires to look at the plan language of being the plan of the policy and apply it as written. And if you do give in the uncontroverted facts that we have set forth, there's only been one plan for Bergen Form and it was established in August of 1989. It's never been terminated and this was established by a little club in Hankle.
Speaker 1:So I take your point that there is a plan that was never terminated, that there was a policy that went away and then a new one came into being, right. But so again I take your point that plan and policy formally are different things. But is it unreasonable to think that plan might mean policy and policy might mean plan. It is your.
Speaker 3:Honor the reason why prior policy is defined and it does not include a definition of prior plan. And if they wanted to define it as such, hartford had the ability to do so. Hartford defines several other terms of policy and if a policy has these defined terms, then they are required to apply them as defined, and even the district court stated it was not a paragon of harmful drafting. And to reach the result that Hartford did, which the district court talked in, it had to go ahead and equate prior policy with prior terminated plan.
Speaker 1:So let me just get you to react, if you don't mind, to one question of mine and then I'll zip it and you can talk and my colleagues can ask their questions. But so, because I think this is a naughty interpretive issue, I went to look at the Scalia and Garner treatise and it said that usually this idea that different words are presumed to have different meanings holds. But it said that rule quote more often than most others assumes a perfection of drafting that, as an empirical matter, is not often achieved, though one might wish it were otherwise. Drafters more than rarely use different words to denote the same concept. And I wonder, if we're not in that land that you might, someone might sloppily use plan to mean policy or policy to mean plan, even if we are in that land. That's Hartford's wrong. My client shouldn't pay for their mistake.
Speaker 3:They had the ability to draft the policy the way they wanted. If you are willing to say that we are in that land, then the next step is to say that it's ambiguous. It's ambiguous and he go to a doctor Contra for ferritin, and that is well established as construed against them.
Speaker 1:So let me ask you this this is this may be a truly stupid question, and feel free to tell me, but so how does Contra proforantum, how does that kind of jibe with the deference that plant administrators may or may not be owed in the interpretation and sort of execution of their own plans? Which one of those two canons, so to speak, takes precedence?
Speaker 3:I think, when we were looking at words and doing judge work, that Contra proforantum applies even in the world of deference the case of Pest versus Hartford out of the 7th Circuit which we cited. It says that deference does not have jack. It also says that deference doesn't mean I forget the other aspect of it, but it still says that the panel can use its common sense in applying. The other aspect of jumping into my argument would be that this exclusion was never disclosed in the SPD. The SPD did disclose the one-year pre-existing limitation. That is more specific, I would say, than this general exclusion. This exclusion, hartford Boyd the burden of proof on it decided a case out of Second Circuit that said it was a preponderance of the evidence. Hartford doesn't cite one case where this exclusion was otherwise applied. They didn't produce during discovery a policy or a procedure or manuals interpreting it. They didn't see any outside judicial opinion to see how it could be applied. We contend that it was Hartford's burden, that the board improperly placed it on the steward and Hartford never reached its birth.
Speaker 3:There were several errors that we believe the district court made below. The first one was not applying the fine terms. The second one was this burden of proof issue. Third, we think that the judge improperly tried to rewrite the contract because of a faulty sense of equity. We cited the Montefori case out of the Second Circuit. Courts are required to enforce the policy of contracts that's written. They can't substitute the word to rewrite them to focus on their own sense of equity. We think that clearly happened here. We spent two pages in our brief showing that this steward did not receive a win fall here. In fact, if she's not paying the Hartford LTD benefits for which she is owed, she is going to suffer a substantial loss of income for several years. We believe that the amount that Hartford potentially owed her is close to a million dollars. As I said, she's been fighting these benefits since 2012.
Speaker 1:Can I ask you, at the risk of moving you along before you're prepared, but so we can talk about the waiver of premiums issues.
Speaker 4:Can I ask one question on this, as I understand your argument? So when you're looking at how we let's say we say the de novo interpretation is wrong plans, not policy so then we look at whether there was an a reasonable interpretation and, as I understand your argument, it was very clear that part of the interpretation, of looking at what was reasonable there or not, was this big win-fall analysis, that kind of drove the interpretation. Is that right and that was inaccurate, that she was really getting a win-fall and the administrator, who has a conflict of interest here they've already established she's got a conflict of interest, that they are and saying that the Hartford's interpretation square better with the RISSES goals was because it would protect the plan from and by keeping her from getting a win-fall. That was a driving force. Is that what you're saying?
Speaker 3:And then interpreting that was an overriding force for the district court.
Speaker 4:I think it was improper under the Monteforee case, but it was also factually incorrect, incorrect, and so really could you say okay, the plan should have had interpreted without regard to a win-fall, because it wouldn't have been a win-fall, she still wouldn't have been back up to her full salary, even if she'd gotten both disability payments.
Speaker 3:Yeah, it wouldn't be salary, but it would have been total income.
Speaker 4:Total income. Yes, I stand corrected that the two plan amounts at 21 a month wouldn't have taken her back to her regular income so that there was no win-fall, okay, and that she was double dipping. And really she wasn't. She wasn't at all and she'd paid for the premiums for this second policy anyway.
Speaker 3:She did with her own money.
Speaker 4:Yeah, okay, thank you.
Speaker 1:So the the question I was going to ask you. Something you said just now on the LTD side triggered this question, and I thought it was a decent segue. You said that we can't ignore the unambiguous language of the policy in order to do equity. And on the waiver of premium side, there's this decision of ours, helms, an F-second decision. Helms Not binding on us because it's a different contract, but it's out there and it's in the same space. Isn't that, though, what the court did in Helms? Didn't it ignore unambiguous language of the policy to do equity and didn't it basically admit as much?
Speaker 3:In favor of the insured Otherwise. I think the reasoning there, though, is if you took the literal interpretation of policy that way, then the coverage would have been illusory. The only time you could ever get coverage under that interpretation would be if a person was on the toast.
Speaker 1:I see that my you can we carried you over. Take a few minutes to unpack this issue.
Speaker 3:Okay. On the waiver of premium, we think the evidence clearly shows that it was an overriding conflict of interest which made an outcome-determinative. Ms Stewart had originally been denied on the waiver of premium. She successfully appealed. On December 5th the appeal specialist. I put a note in the file basically saying that Ms Stewart could not perform even part-time work. She is suffering from a philotating disease. It's progressive. It's going to be a work to approve the waiver of premium. Then, a couple weeks later, anna Kay Davis, who we believe was also in the business unit we found some evidence of that on the internet and we think it's improper that she was the one ordering the testing. Parker contends that she was an appeal specialist, but we think that was the first sign of the conflict and then out of nowhere.
Speaker 1:Just so I'm clear. When you say we found this on the internet, do you mean you found it on the internet, put it before the district court, or you found it on the internet? Since then, we put it before the district. I just wanted to make sure of them.
Speaker 3:Okay, with a attachment to our memorandum, got it, and then also Lee Ian Harding LinkedIn profile and his work with the stretch project Him boasting about saving three million dollars in reserves and receiving a standing ovation at a heart-free meeting for doing so. We think that shows that there was an overriding conflict. A last-year class action complaint that we filed in California shows that what happened to Ms Stewart was a widespread and the California law actually says that you can interpret any work the way that Parker was trying to do that and we also, on the way we're premium, argued that the definition of the policy that talks about any work you can do by training, education or experience that definition wasn't followed To say that she could volunteer. That certainly doesn't fall behind for that definition, and she also raised the issue that there was no vocational analysis or that they didn't identify any work.
Speaker 1:So I guess I would have thought from the language of the policy. Any work for which you are qualified by education, training or experience means that you can't be expected to proliferate as a clumsy way to describe it but to move up in the business hierarchy. Nobody could say, oh, you're incapable of being a construction worker, but you could be a lawyer, but Can you trade down, so to speak?
Speaker 3:Well, I judge that he wrote, and I think it was the Fitz opinion I'm not sure if we cited it or he would say that you were not expected to become a green or a Wal-Mart making 750 an hour when you've had this other trading experience in this other level of income?
Speaker 1:Okay, very well, all right, so why don't we stop you there? We'll hear from Mr Nyman, and then you'll have your full rebuttal time available to you. Thank you, your Honor.
Speaker 5:Thank you, your Honor, may it please the court, john Nyman, here for Hartford. The bottom line in this case is that the district court opinion got this one exactly right, really, on all three issues, especially the first one, which is the main topic we've discussed during argument today. I'll start there. That's the one concerning Stewart's request for long term disability, and let me back up just at the outset and say the following no one in this room has anything but sympathy for Ms Stewart and what she is facing in terms of her condition and also just say, as a member of the Birmingham Bar personally, no one here has anything but respect for what Ms Stewart was able to achieve in her career there. That said, and I think Mr Burke and I agree fully on both those points, we also agree fully on one other thing he told the panel, which is that the panel can use its common sense in this case. And that said, stewart's position that she's entitled to long term disability from Hartford really just defies common sense.
Speaker 5:To be clear, stewart has not been denied disability by the plan that was in place when she became disabled. She's been receiving benefits for that disability from the insurer that was present at that time, sun Life to the tune of $250,000 a year. The common sense problem in this case, judge Hull, is really there's really two elements to it. First of all, whether or not the district court correctly calculated just how close the benefits would have gotten Stewart to her pre-disability income. There is a windfall aspect of that because she is double dipping she's getting two disability benefits when under any plan you're just entitled to one. The other big common sense problem here is that she's seeking coverage for an event that happened her disability when Hartford wasn't even on the scene, when Sun Life was her insurance. That's just fundamentally at odds that latter aspect of the common sense problem with elemental principles about how insurance works and what it does. Insurance covers risk, not certainty.
Speaker 5:Generally, to be covered by an insurance contract you've got to show that your injury was caused by an event that the law and treatises refer to as fortuitous. That means in layman's terms you can get insurance for things that may happen to you in the future, but you don't get insurance for things that have already happened to you in the past. That's common sense, that's insurance 101, and the policy needs to be read with those principles in mind. I understand.
Speaker 1:Can I ask you just another 101 question and I'm really sorry that I don't know this, but so tell me the architecture of a plan and the policies that administer that plan, because I think I may be genuinely confused about the difference between an employee benefit plan and the insurance companies and policies, that sort of service, that plan. Is there a difference? Like I said, look, I think you're on to something that there might be a difference between the plan and the policy, or your policies. Are they the same? Are they different? How do they interact?
Speaker 5:I think my bottom line answer to your question, Judge Newsom, is that when we're talking about interpreting what these words mean in these documents, the right answer is not to ask what language do ERISA slash employee benefits lawyers speak.
Speaker 2:This podcast is brought to you by Ben Glass Law, a national leader in long term disability insurance claims. We help doctors, lawyers, entrepreneurs, ceos and other C-suite executives get paid for their long term disability benefits. Visit us at BenGlassLawcom or give us a call at 703-591-9829.
Speaker 5:Case the right question is what is the ordinary meaning of these terms? And we're talking about ordinary meaning.
Speaker 4:Yes, but to understand the ordinary meaning we have to know what they are. An ERISA plan is this massive document In fact, the law. The law says it's so big and comprehensive and complicated, the plan document, that you have to do a summary plan description to your employees Because nobody would ever understand the big document. So they give you a summary plan description, right?
Speaker 5:That's true, Judge Hull.
Speaker 4:And the policy. A policy I happen to have done these. So a policy is the ERISA plan administrator can go to anybody out in the country and buy insurance coverage, can buy health coverage, can buy a disability policy, can buy any kind of policy that they pay for to operate the plan. Okay, to provide the coverage, that plan, my employer says I'm gonna give you a disability policy, here's the benefits you can sign up for. The plan does all that. You sign up, the plan goes out and buys the policy with your premiums and funds the plan with the policy. And let me interject one- Is that not right?
Speaker 5:One critical caveat to that is that often a plan if we're thinking about the plan as the document, that the-.
Speaker 4:That can be self-funded, yeah, but who are-?
Speaker 5:The document, that is, the agreement between the employer and the employees, as opposed as between the insurance company and the employees. That's what we're talking about with respect to the plan.
Speaker 4:Yeah, when we talk about policy.
Speaker 5:There isn't necessarily going to be just one single policy that is associated with the plan right. You may have several different insurers.
Speaker 4:Yeah, you go ahead. You may have several different kinds of insurance. A medical insurance, you can have life insurance. This just deals with disability insurance, Right?
Speaker 5:but ultimately, I think the question here has to be what would an ordinary person and not just the terms of plan and policy, but what would an ordinary person looking at this lengthy clause in this particular document interpret it to me?
Speaker 4:Because it speaks to Well, I would never say policy was planned, but that's just me. Let me stop on that. The word policy is used hundreds of times throughout that document, right?
Speaker 5:I don't know about hundreds, but it's certainly. There are many places, but lots of times, yes.
Speaker 4:And the word plan is used in other contexts in the, so that it can possibly mean policy.
Speaker 5:I'm not sure about that Judge. So let me point to some instances in these documents where the word plan is used in a way that's fully supportive of what the district court did and fully supportive of the way that Hartford interpreted- why don't you start out with the way it was used right here and what we've got to interpret it?
Speaker 5:That's exactly so. Exhibit A this is actually exhibit A to the plaintiff's complaint. This is the Sun Life document. It refers to itself as a plan, sun Life. The document is very specific to Sun Life. It lists Sun Life as the insurance carrier. It lists Sun Life's address. The document very much in contemplates Sun Life's provision of insurance as a part of the plan.
Speaker 5:Exhibit B in this regard is the document that appears at the very front of our administrative record. This is the Hartford document that we're dealing with. Very first page calls it your benefit plan. So it's entirely reasonable if we're thinking about the way that ordinary people speak and the interchangeability of the terms policy and plan, at least in ordinary speak I'm not talking about necessarily the way that the lawyers who specialize in this sort of work speak when they're talking with these legal issues through with each other, but just in terms of the ordinary meaning of these terms that when Burr-Forman moved from this Sun Life document and moved to the Hartford document, it was terminating this Sun Life document that calls itself a plan in part and sponsoring the Hartford document.
Speaker 5:So that gets us within a reasonable meaning of the language that appears in the Hartford document there's a provision, judge Hull in the Hartford document with respect to plan termination that I also think is very helpful in this regard as well. This provision says that the plan can be terminated by the sponsor or by the plan administrator, which is Burr and this is, I think is the important part in whole or in part. So it's entirely possible to terminate a plan in part. In the parlance of this document and the suggestion by Ms Stewart that what has to happen in these circumstances is that Burr-Forman has to terminate its entire, this entire formal entity that's called the Burr-Forman not disability plan but the Burr-Forman employee benefits plan number 501, would seem to be inconsistent with the notion that a plan can be terminated in part, the sensible thing here Is to plan and policy, under the terms of your plan, have different legal meanings?
Speaker 4:I believe they do and I think you just said that the words plan and policy have different legal meanings.
Speaker 5:I think they're in shorn and shorn from context.
Speaker 4:Yes.
Speaker 5:They're using plans refer to, for example, the, the burr form and employee benefits plan number 501. In the context of this provision, as the district court noted, by far the most reasonable understanding of this provision is that plan is referring, at least when we're talking about the termination of a disability plan under which you're receiving disability benefits. We're talking about this process of moving from the Sun Life plan this document that calls itself a plan, that spot, that where Sun Life is associated with it to the Hartford plan. There's another provision in the Hartford plan that I think is really helpful in terms of instructing on what sort of assumptions are baked into this prior plan exclusion. It is on page 12 and it's the provision that explains when you get disability under the plan.
Speaker 5:I'll just read it to the court. It says the question asks what are my disability benefits under the policy? And Hartford says we will pay you a monthly benefit if you become disabled while insured under the policy. The assumption is I'll read it again We'll pay you if you become disabled while insured under the policy. So the assumption is not that you become disabled while insured under a previous policy. The assumption is that you became disabled, consistent with basic insurance principles, while Hartford was on the scene, and there's another provision shortly before that provision on the same page that I think is very helpful in terms of instructing us on how benefit administration sensibly works in these kinds of cases.
Speaker 5:This provision deals with what happens if this policy terminates. The question is posed do my benefits continue if the policy terminates? Hartford's answer is an emphatic yes. You are entitled to benefits while disabled, and if you are entitled to benefits while disabled and the policy terminates, benefits will continue as long as you remain disabled by the same disability, with some additional verbiage as well. So Hartford's message is look, even if we get canned by burr foreman, even if burr foreman moves on to some other insurer, we've got you. We'll continue to pay your long-term disability benefits. But look, if you were disabled while under somebody else's watch, while under an earlier insurer's watch, they've got you. And that's exactly what happened in this case. Sun Life has had Ms Stewart and has continued to pay her benefits. What Ms Stewart is asking for is a double benefit on top of that one. That simply is inconsistent with the way that long-term disability insurance works. I think that Hartford's interpretation here is right.
Speaker 4:I never heard of any prohibition against buying two separate long-term disability insurances that you can buy to if you want to.
Speaker 5:Agreed, Judge Hull, and in fact Ms Stewart has supplemental disability here to the tune of about, I think, $72,000.
Speaker 4:And she paid the premiums for the second one, so why wouldn't it be two?
Speaker 5:That, to be clear, judge Hull was a mistake that Burr-Forman made. Burr-forman should not have been charging her premiums and when she has not sought a premium refund in this case, when Hartford made the benefits determination and informed her she had said I paid premiums under this and Hartford said you need to talk to Burr-Forman about that. If you read the policies, pretty clear if you're disabled, you're not supposed to be paying disability premiums.
Speaker 4:But, Judge Hull, you said you're saying Burr-Forman owes her premium benefits for your own plan.
Speaker 5:The Burr-Forman should not have charged her. I think it's pretty clear the premiums that she says that she paid.
Speaker 4:For the Hartford plan. For the disability plan.
Speaker 5:But to be clear, judge Hull you said you can buy two different disability, sets of disability.
Speaker 4:I'm not saying you can, under this plan I'm talking about, you can go to the market. I just don't. I don't think the mere fact that you're stacking as long as you're under your income level, I don't think that's a windfall.
Speaker 5:Agreed. The problem here is that that she's seeking insurance for disability that arose under a prior insurer. That's where the real common sense problems arise in this case. There's a double dipping problem, because the plan is only supposed to provide one benefit.
Speaker 4:I know you're saying context, we should read plan and policy the same, but if you go to Black's Law Dictionary, they have very different meanings, very different meanings.
Speaker 5:I think the context of this plan no, I said in the context of the plan.
Speaker 4:But if you go to Black's Law Dictionary, plan, retirement plan and the policy are totally different.
Speaker 1:Can I just ask one follow up about this, and then I'm gonna try to direct you to the premium waiver issue. But we've had a lot of discussion here about like ordinary meaning, all of which sounds to me about the de novo interpretation of this plan. But do I understand your position to be? You think you went on de novo? But even if you don't went on de novo, you think that this is at the very least reasonable.
Speaker 5:Yes, absolutely, especially in light of these sort of background principles that I've been talking about today and the common sense element here Also. The references, say on the first pages of these documents, to the notion of plan. Mr Birx argued earlier that contra-proferendum would get him a victory in that regard, but the case law is quite clear that in the administration of a benefits plan, when a deferential standard of review applies, contra-proferendum has no role to play.
Speaker 1:So that in answer to my question, that kind of cannon, so to speak, Trump's contra-proferendum in Erisa land?
Speaker 5:That's absolutely correct, your Honor.
Speaker 4:I just need clarification light of that. Is the language ambiguous and there are two reasonable interpretations? Are you saying the language is ambiguous? Let's just see me lose those clear on the first one. Are you saying it's ambiguous and there are two reasonable interpretations? Are you saying it's ambiguous and only Hartford's interpretation is reasonable?
Speaker 5:Because I disagree with you on the first one. I often say that the only interpretation I think here is reasonable is Hartford's.
Speaker 4:Okay, all right. So let's assume it is not clear. Okay, on the first on DeNovo review, it's not. Let's say we get past the first step. Just assume you told me I lose on the first step.
Speaker 5:And now we're moving on to a later step at the blank.
Speaker 4:Yeah, yes, and so we have to see if the if you're the plan administrators interpretation is reasonable and you're saying her interpretation is not reasonable. Her interpretation.
Speaker 5:I'm saying her interpretation is not reasonable and the very least mine is much, much more reasonable.
Speaker 4:But that's what I'm trying to drill down and the reason why he is number one.
Speaker 5:I think I've got some textual support. I know you disagree with me, I don't know.
Speaker 4:I'm just asking you what my question? I don't know what I believe.
Speaker 2:I'm just asking you some questions.
Speaker 4:I'm just trying to understand. Do we have two reasonable interpretations? You don't even concede her interpretation is reasonable.
Speaker 5:I don't concede that her interpretation is reasonable once you factor in the common sense problems that I've highlighted. But in the very least, the sexual support I do have and the common sense concerns that weigh in on my side at the very least make Hart Hartford's interpretation a reasonable one and, under abusive discretion, arbitrary and capricious type review. Hartford's decision, therefore, is due to be affirmed in the district court. Got that right as well.
Speaker 1:Just so I understand how blank and ship works. You don't have to exclude the reasonableness of her interpretation. You just have to affirm the reasonableness of your interpretation. That's correct. Okay, got it. Okay. So will you talk to us for a few minutes about the premium waiver?
Speaker 5:Yeah, so the premium waiver. I think the district court got this one exactly right as well. It was a closer call. Look, hartford's own actions show that it was a closer call. Hartford went back and forth a little bit on this point, but at the end of the day, both Hartford and the district court got this question exactly right as well.
Speaker 5:The key point on this issue is that it does not turn on whether Stuart has a disability she definitely does. It doesn't turn on whether this disability has kept her from doing the things that made her a star in the Birmingham bar. It definitely has as well. That's why I guess Stuart is getting the $250,000 from Sun Life, because she's definitely disabled. For those purposes, waiver premium is different. The definition of disability is different. Hartford agrees to pick up the tab for the life insurance premium, not when the employee can't do their current occupation, but when they can't, in the words of the policy, do any work for which they are qualified.
Speaker 1:Can I ask you a question how far are you willing to press that? Any work, truly any work. Does that include volunteer work? Does it include five minutes of Walmart greeting or whatever? Any work, really any work. There's like a spectrum, it seems to me, between the plain language of this policy, which seems to say any work, and what happened in Helms, which to me just seems like completely unhinged.
Speaker 5:At the end of the day you've seen the documents, judge Newsom you know that Hartford has taken a position that they can point to volunteer work and that should be enough. But at the end of the day this case isn't Helms and we're not in that land anyway. Because two things are clear. Number one the evidence here showed, especially the Contardo, and the neurologist examination showed, that both of them concluded that Ms Stewart was capable of some full-time sedentary work.
Speaker 5:The second thing is clear from the record is that Ms Stewart never argued that she wasn't capable of doing something.
Speaker 5:Her argument was always that she wasn't capable of being a lawyer anymore, and not just that a trial lawyer and not just that an equity partner. So if you read in particular her appeal letter it's about 42 pages long, written by her former attorney, john Somerville. There's some especially, I think, instructive statements in there showing that Ms Stewart's argument always has been that she was not, that she wasn't required to show, that she couldn't do anything. Her argument has always been that she was not able to be a lawyer anymore and that ought to be enough. In particular, I just want to read one to the court on page 31.
Speaker 5:Stewart argues there an interpretation that the insured is required by the waiver of premium to leave Byrne Foreman and seek other work or take a job as a legal assistant cannot be reasonable and would be an abuse of discretion. So between the fact that Stewart always was arguing the wrong standard and the fact that we've got clear evidence in the record from which Hartford can make a reasonable determination that she was capable of some other work evidence that she really hasn't contested Hartford's resolution of the second issue also is due to be affirmed. With that I'm way over, so very well, thank you so much, mr Nyman.
Speaker 1:Mr Burke, you've got your full three minutes remaining. Opposed counsel use two words risk and double dipping.
Speaker 3:As far as the risk goes, hartford voluntarily accepted the risk. It came to Byrne Foreman and it took on underwriting. It looked at the firm and it accepted the risk of insuring all of the equity part. As an equity partner. Ms Stewart was a mandatory participant in that plane. She had to be covered. But they had told Byrne Foreman that they were going to exclude her. They would not have gotten this. She was a mandatory participant. We raised the anti-discrimination issue earlier, section 510 of ERISA. If you take Hartford's position here, she is being excluded because she had no spark and synthesis and we think it raises serious anti-discrimination issues under the whole ERISA framework. Much of a second point about double dipping. Opposed counsel made a sound as if Ms Stewart is receiving $250,000 a year. She hadn't received any benefits from some life since she turned 65. The Hartford policy if they had been paying her benefits would have paid until she was six. She would have received a full year of additional benefits just under Hartford.
Speaker 2:And that makes sense.
Speaker 3:Some life came on the scene in 2007,. They were there then. They insured her income level of $638,000 a year in 2008. When she became partially disabled in 2009, she received partial disability benefits. She was still working full time when Hartford got the business in 2010,. Her salary had gone down from $638,000 to $300,000. That's the risk that Hartford willingly assumed. They came in and they underwrote that risk. So, as far as the assumptions go and how policies should be interpreted, the case law said it has to be done from the perspective of an ordinary insurer. If you look at the ordinary insurer, Carol Stewart, she had that $300,000 in income to insure against and she paid the premiums to do so and she's entitled to the benefits. I didn't get to touch on the last argument. We think that the courts ruling ran a file of Jones v American General and it should have been dismissed at the motion of dismissal stage.
Speaker 1:That Hartford received a windfall to the $2,000 and $43,000 a year in premiums that he did not have to waive in favor of the story. I'll see my time. Okay, very well, thank you both very much. Target on both sides that case is submitted and this court is adjourned. All rise, here you go. Dispatch here.
Speaker 2:Yeah, of course, take it out, though, the proceeding has been a production of Ben Glass Law, a Fairfax, virginia-based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at benglaslawcom or call us at 703-591-9829.