Category Archives: Blog

Trief & Olk Victorious at Trial Challenging Denial of Life Insurance Proceeds, Recovers $3 Million

In a case tried before Justice Francis A. Kahn III of the Supreme Court of New York, Bronx County, Trief & Olk successfully prevailed in claims brought against William Penn Life Insurance Co., recovering $3 million (plus interest) in insurance proceeds owed on the life of Jhonny Jaar.  You can read the decision here.

Mr. Jaar was a key executive in Global Energy Efficiency Holdings, Inc. (“Global Energy”).  Due to Mr. Jaar’s important role in the company, Global Energy purchased “key man” insurance on Mr. Jaar’s life in two policies (one issued in 2012 and the other in 2013), for coverage totaling $3 million. Early in 2014, Mr. Jaar passed away.  Global Energy submitted to William Penn a claim for the insurance benefits payable under the policies. Because Mr. Jaar’s death occurred within two years of the policies being issued – during what is known as the contestability period – William Penn was entitled to conduct an investigation to ensure that the information provided in the applications for the policies was accurate and complete. Autopsy results showed that Mr. Jaar had marijuana, ketamine, and ecstasy in his blood at the time of his death, causing William Penn to investigate Mr. Jaar’s history of using these substances.  After obtaining additional background information, William Penn denied payment of the insurance proceeds on the grounds that Mr. Jaar had smoked and/or used drugs at the time of the applications and failed to disclose these facts, materially misrepresenting the risk of insuring his life.

Global Energy filed suit for breach of contract against William Penn, claiming that Mr. Jaar did not smoke (tobacco or marijuana) or use drugs at the time of the applications but that any use of these substances began shortly before his death.  Despite testimony from every witness who knew him well (including his widow) that Mr. Jaar was not a smoker and did not use drugs in the key 2012-2013 time frame, William Penn persisted in its denial of payment based on its theory that Mr. Jaar had misrepresented his history of smoking and/or drug use.

The parties tried the case without a jury in June 2018; Justice Kahn issued his memorandum opinion on October 22, 2018, finding that William Penn did not meet its burden to establish that Mr. Jaar had made any material misrepresentation on the life insurance applications. In particular, Justice Kahn found that the testimony of William Penn’s forensic expert, Dr. Michael Baden (who served as an expert in the O.J. Simpson trial) was not convincing, particularly in light of his reliance on inadmissible, unreliable hearsay statements.

If you recently lost a loved one who had life insurance for which payment was denied or which you fear may be denied, the life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied. Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Trief & Olk Secures $4M Settlement for Injured Plaintiff

Trief & Olk obtained a settlement of $4,000,000 for a plaintiff who had his left, non-dominant hand amputated in an industrial meat grinder. The plaintiff was working for an outside cleaning company and was tasked with cleaning an industrial meat grinder at a meat processing facility in Bronx, New York. While disassembling the machine, the machine’s foot pedal installed by the meat processing facility was unintentionally activated, turning the machine on and catching the plaintiff’s hand in the grinder. Trief & Olk argued that the meat processing plant was responsible for the injury because (i) it negligently altered the meat grinder in a manner that made it more dangerous, (ii) it failed to de-energize the meat grinder prior to the cleaning crew’s arrival, and (iii) it left the pedal on the floor in a location where it could be unintentionally activated. The defendant’s insurance company originally offered $500,000.

Trief & Olk was able to reach the settlement by building a case through aggressive discovery tactics and a team of experts.

The discovery started pre-suit, when Trief & Olk obtained a Court Order permitting an inspection of the machine. During that inspection, Trief & Olk discovered that the pedal on the machine lacked side protection to prevent unintentional activation of the machine. At the second inspection, the pedal had been changed to one with side protection. The meat processing facility attempted to argue that the new pedal was on the machine on the date of incident, but the photographs from the first inspection proved otherwise.

Trief & Olk was also able to obtain the deposition testimony of two employees of the meat processing facility. At those depositions, Trief & Olk exposed the fact that the machine had been altered by the meat processing facility to operate with a free-moving pedal rather than hand-operated buttons located a safe distance from the machine’s grinding mechanism. Trief & Olk also got the employees to confirm that the defendant had no de-energization policies and would routinely leave their machines plugged in with the pedals on the floor where they could be unintentionally activated by the incoming cleaning crew.

The meat processing facility attempted to pass the blame onto the plaintiff by arguing that the plaintiff was responsible for de-energizing the machine prior to cleaning. However, Trief & Olk identified OSHA regulations that placed that responsibility squarely on the meat processing facility, coupled with testimony from plaintiff’s supervisor placing the responsibility with the meat processing facility.

Trief & Olk supported plaintiff’s case with a team of experts to explain the defendant’s liability and plaintiff’s damages. The team included an engineer to discuss how and why the machine was defective, an orthopedist to discuss the plaintiff’s fractures and amputation, a prosthetics expert, a vocational rehabilitation expert to discuss plaintiff’s inability to work post-accident, and a life care plan expert to explain to the jury the cost of all of the care and replacement services needed by the plaintiff for the remainder of his life.

Trief & Olk represents individuals in a wide variety of personal injury actions, including machine and workplace accidents. If you have been injured in a machine accident, workplace accident, or by any other cause contact Trief & Olk by telephone or our website’s submission form to find out how Trief & Olk can help you.

Cause of Death Usually Does Not Impact Life Insurance Payment

UNLESS A SUICIDE WAS INVOLVED AND OCCURRED WITHIN CONTESTABILITY PERIOD

Many people mistakenly assume that the cause of death might impact whether the life insurance company pays the claim for life insurance. Under most circumstances, however, the cause of death would only directly impact the life insurance company’s decision to pay the benefit owed (1) if the deceased committed suicide and (2) if the death occurred within the “look back” period, referred to as the contestability period. This rule would not apply to an accidental death policy.

The contestability period, which is two years in most states (including New Jersey, New York, and Massachusetts), allows the life insurance company to review the initial application to ensure that the policy holder accurately provided all the relevant information and did not leave out any details that would have affected the type of policy issued and/or the amount of the premium charged. Additionally, if a suicide occurs within that period, the life insurance company can deny the claim for benefits, on the theory that the policy holder may have been intending to commit suicide when the policy was purchased, and that the insurance company would not have issued the policy if that information had been known in advance.

Within the contestability period, other than a suicide, the insurance company would not be directly concerned with the cause of death. For example, if the insured had a heart attack, that fact in itself would not impact whether the life insurance company pays the benefit owed. However, for any death occurring within the contestability period, the life insurance company is entitled to review the policy application and request the deceased’s medical records, to confirm that all key information had been included in the application. So, for the example of a person whose death was due to a heart attack, the life insurance company would review the application to see if any prior history of heart disease had been disclosed. If a prior history of heart disease had been listed on the life insurance application, the insurance company cannot claim that it did not have all the information necessary to properly analyze the risk of issuing the policy and to figure out the proper premium to charge. It therefore cannot point to the cause of death as a reason to deny payment of the benefits owed under policy (assuming the premiums had been paid on time). Additionally, if the medical history shows that the policy holder had no history of heart disease at the time of the application (meaning that the condition developed later on), the life insurance would not be able to deny the claim based on the cause of death. On the other hand, if the life insurance company finds that some other medical condition was not disclosed on the application, it could deny the claim, even if that other condition was completely unrelated to the cause of death. Similarly, if false financial information or other false statements were made on the policy application, the life insurance could deny the claim.

Beyond the contestability period, the cause of death is generally not relevant to the life insurance company’s determination of whether to pay the benefit. Other grounds for denial are still possible, however, such as failure to pay the premiums. 

In summary:

  1. Within the contestability period:
    1. Suicide can be basis for the life insurance company’s denial; and
    2. Other causes of death would not directly be basis for life insurance company’s denial, but could provide the life insurance company to review the application to ensure that any medical information related to the cause of death had been disclosed (if known at the time of the application).
  1. Beyond the contestability period: cause of death is not relevant

If you recently lost a loved one who had life insurance for which payment was denied or which you fear may be denied, the life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied. Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Life Insurance Policies with Vanishing Premiums – and Vanishing Policies

Many life insurance companies have sold life insurance policies with the enticing premise that the premiums paid in the early years of the policy will accrue interest that will pay for the premiums owed in the later years.  These policies were marketed with illustrations showing the interest being used to pay the premiums, referring to them as “vanishing premiums.”  The theory behind policies with this structure is that the premiums are relatively high when the policy is first issued, while the policy-holder is in his or her earning prime.  The premiums paid then accumulate cash value, which generates interest that is used to pay the premiums in later years, when the policy-holder is earning less or retired.  Thus, the premiums are supposed to vanish, which is an appealing prospect for someone purchasing a whole life or universal life policy they plan to maintain until their death.  (These policies differ from a term life policy, which lasts for a fixed number of years, for which the premiums are generally much lower than whole or universal life policies offering the same level of insurance coverage.)

There is nothing inherently wrong with a vanishing premium policy; however, since interest rates are much lower in recent years than was the case when the policies were issued, the result is that the accumulated interest ends up being insufficient to pay the premiums in the long term.  So, for example, the policy-holder pays high premiums for years 1 through 15; the cash value of the accumulated interest covers the premiums for years 16-20; and then suddenly, in year 21, the insured is again asked to make a premium payment.  Having grown accustomed to not paying the premiums, the policy-holder often does not understand the change in circumstances, is confused by the notice demanding payment, or does not have the money to pay.  The unfortunate outcome in these situations is that the policy-holder does not make the required premium payment.  When this occurs, the policy is cancelled, despite the fact that thousands of dollars in premiums (or hundreds of thousands of dollars) have been paid over the course of many years and despite the fact that the illustration used in marketing the policy turns out to be incorrect. The likelihood of this occurring is particularly high when the policy-holder is elderly and may not fully comprehend complex financial documents or is in a lower earnings bracket.

If you or a family member has a life insurance policy with this type of premium structure, it is important to monitor any notices you receive from the insurance company. Be on the look-out for any notice indicating that a payment must be made by a specific date in order to avoid cancellation of the policy.  If it is not clear whether a payment is owed or whether the accrued interest is sufficient to cover the premium, contact the insurance company to make sure you understand the situation.

If you recently lost a loved one who had life insurance for which payment was denied, you may have a claim.  The life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied.  Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Trief & Olk Wins Summary Judgment in Complex Construction Accident Case

Trief & Olk recently won an appeal of an order which granted the plaintiff summary judgment of a complex Labor Law 241(6) claim. The case involved a plaintiff who suffered an electric shock as a result of dangerous conditions at a construction site. The order, which is a ruling by the Court, finds that the building owner defendant is legally responsible for the plaintiff’s injuries, and, equally as important, the plaintiff is not at all at fault. The case will proceed to trial where a jury will determine whether a second defendant, an electrical contractor, is also partially responsible, and the value of the plaintiff’s injuries.

Trief & Olk’s success is particularly notable because summary judgment for plaintiffs with Labor Law 241(6) claims is fairly uncommon. Under Labor Law 241(6), a building owner or general contractor can be held liable for injuries at a construction site if there was a violation of New York’s Industrial Code and the violation caused the plaintiff’s injuries. Summary judgment is relatively rare, because, not only must the plaintiff demonstrate that Labor Law 241(6) was violated, but he must also demonstrate that he did not partially cause the injuries through his own negligence, known as comparative negligence. If there are any facts from which a jury may find that the plaintiff negligently caused or contributed to the incident, summary judgment will be denied so that a jury can determine the extent to which the plaintiff and the defendant(s) were at fault.

Trief & Olk was able to demonstrate to the Court that summary judgment was appropriate by use of all the tools available to the firm. Specifically, Trief & Olk was able to show through deposition testimony, accident reports, and an affidavit from the plaintiffs’ electrical engineering expert that the condition of the electrical wiring at the job site violated the Industrial Code because it was energized, not grounded, and not otherwise guarded. The defendant attempted to avoid liability by denying that the plaintiff suffered an electric shock, but Trief & Olk used objective signs of injury from the accident reports, the defendant’s own expert reports, a videotaped deposition from the plaintiff’s treating physician, and hospital records to show that, despite the defendant’s protestations, all of the evidence confirmed the electrical shock occurred.

The defendant also attempted to avoid liability by arguing that the plaintiff, a construction supervisor, was to blame for the electrical conditions at the job site. Trief & Olk defeated this argument by showing that the plaintiff argued with his boss about the electrical work, insisted that licensed contractors do the work to ensure its safety, but was overruled.

Trief & Olk also defeated the electrical contractor’s attempts to win summary judgment against the plaintiff by alerting the Court that the electrical contractor filed its motion after the deadline. While Trief & Olk had the utmost confidence that it would have defeated the electrical contractor’s motion on its merits, the Court did not even get that far, agreeing with Trief & Olk that the motion should be summarily denied as late.

Trief & Olk represents injured individuals in a variety of personal injury actions, including construction accidents. If you have been injured in a construction accident or any other cause, contact Trief & Olk by telephone or via our website’s submission form to find out more about how Trief & Olk can help you.

Recent Recall Signals Danger for Hip Implant Reciipients

In April 2016, we posted a blog entry about the expected proliferation of hip replacement product liability lawsuits. A recent recall by Howmedica Osteonics Corporation, also known as Stryker, has confirmed our suspicions.

The recall, issued on August 29, 2016, involves Stryker’s LFIT Anatomic V40 Femoral Heads (“LFIT V40 Femoral Heads”). While the recall is limited to slightly more than 42,500 LFIT V40 Femoral Heads (a considerable number in and of itself), the issues that caused the recall may be present in a much larger amount of products.

According to the recall, “Stryker received several complaints describing incidence of harm secondary to taper lock failure…”

Some have theorized that the recall is intentionally narrow so as to set up a defense for Stryker. Those theories suggest that the main issue with the hip implants is the interaction between the dissimilar metals of the LFIT V40 Femoral Heads (made from chromium/cobalt) and femoral stems made from Stryker’s TMZF alloy; the combination of metals combined with friction results in corrosion of the LFIT V40 Femoral Heads. The corrosion can lead to the absorption of Chromium and Cobalt into the recipient’s body (also known as cobalt poisoning and chromium poisoning), permanent damage to the recipient’s muscles and tissues (known as a local adverse tissue reaction and, at its most extreme, tissue necrosis), abnormal wear of the implants, and, if not addressed in a timely manner, dissociation and failure of the implants. In all of these situations, patients must undergo at least one additional surgery to remove the defective implants and replace them.

For more information on the theories as to why some hip implants fail, see our blog entry from before the recall, which details some of the mechanisms that may be responsible for hip implant failure.

Trief & Olk represents injured individuals in a variety of product liability actions, including medical devices and consumer products. If you have been injured because of an LFIT V40 Femoral Head or any other product, medical or otherwise, contact Trief & Olk by telephone or via our website’s submission form to find out more about how Trief & Olk can help you.

Don’t Lose Life Insurance Coverage When you Need it Most – When you are Gravely Ill

Many employers provide employees with the option to purchase group life insurance coverage in addition to basic coverage provided by the employer and paid for by the employer. This coverage, often referred to as optional, voluntary, or supplemental life insurance, does not, necessarily remain in place once the employee has left the company. As attorneys representing life insurance beneficiaries denied coverage, Trief & Olk sees many cases where the client’s loved one has passed away after a long illness. The beneficiary –such as a surviving spouse –seeks payment under the supplemental life insurance that had been in place while the deceased was employed, only to find out that the insurance company claims that the coverage had previously ended, so the insurance claim is denied. Challenges to such life insurance denials are possible, but must be pursued according to the specific procedural requirements of the Employment Retirement Income Security Act of 1974, known as ERISA, 29 U.S.C. §§ 1001-1461, the federal statute that governs insurance plans provided to employees as part of a benefits package.

Denials of life insurance coverage under employer-provided life insurance typically arise when the employee stops working due to a serious illness (such as cancer) that requires extensive treatment and makes the employee too ill to work. The employee eventually is required to go on long-term disability leave. She may continue to receive disability payments under the employer’s disability policy and therefore may assume that the life insurance coverage continues as well. Depending on the terms of the insurance plan, however, the employee’s coverage under the life insurance policy may end at a certain point. Frequently coverage ends one year after the employee first went out on disability, at which point the employee may no longer be considered an employee. The employer and insurance company cannot, however, simply cut off coverage. They must provide notice that the policy coverage will end and explain the employee’s options. For example, many policies require that the employee have the opportunity to convert the group policy to an individual policy (for which the former employee will be required to pay monthly premiums). Certain policies also offer the possibility of continuing coverage under the group policy beyond the standard cut-off date if certain conditions are met. In such circumstances, the employee may be able to apply for a waiver of the monthly premiums.

If you or a family member have recently stopped working due to a serious illness, it is important to find out from the employer what benefits –including life insurance coverage –continue while on disability, how long those benefits will continue, and what options are available if and when those benefits terminate.

If you recently lost a loved one who had employer-provided life insurance for which payment was denied, you may have a claim if the employer and/or insurer did not provide the proper opportunity to convert or extend the life insurance coverage. The life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied. Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly at (212) 486-6060 to discuss how we may help you.

Who to Sue for Construction Accidents

When construction workers are injured on the job, they are usually unable to bring personal injury lawsuits against the most obviously responsible party, their employers, due to the Workers’ Compensation Law. Fortunately, New York’s legislature enacted New York’s Labor Laws, designed to protect construction workers who often do not have control over their working conditions. The Labor Laws, specifically, Labor Law 240 and 241(6), provide that the building owner and general contractor may be held liable for injuries to construction workers, even when the owner and general contractor have no direct involvement in the incident. The goal of the legislation is to shift the burden of such injuries away from the powerless workers and State (who support injured workers through public assistance programs, if they cannot return to work) and onto the parties with both the financial means to pay (insurance) and the ability to control the work environment.

When pursuing a Labor Law claim, it is extremely important to have an attorney who can identify the proper parties to sue. Information such as who holds the deed for a property may be available online (in New York City, via the ACRIS system) or at local county record keeping offices. In cases involving apartment buildings, though, this is just the first step. Next, the attorney must determine whether the building is a rental building, a condominium or a housing cooperative (coop), to determine the proper party to sue. This can be very complicated and can lead to suing the wrong party, if the investigation is not thorough. For example, in a recent First Department Appellate Division case, Jerdonek v. 41 West 72 LLC, et al. (Index No. 590726/10), the Court found that one defendant could not be held liable under Labor Law because it had converted the building to condominiums, after which a different entity, the Board of Members, was given ownership of the boiler room where the accident occurred. As another example, when there is a lawsuit based on an accident that occurred within an apartment in a coop, the individual coop owner residing in the apartment is usually exempt from the Labor Law, but the coop board is not.

It is equally crucial to identify the general contractor. Sometimes, the general contractor will have signage at the construction site advertising their presence, making this determination easy. Otherwise, permits and other records can be searched at government offices to identify the general contractor. Even this, though, can be difficult, as, on more than one occasion, the general contractors listed on permit applications have taken the position that despite the listing, they were just used for paperwork and were not the real general contractor, a defense that has been permitted by the Court.

Overall, the important thing to appreciate is that a sophisticated attorney is crucial to success when bringing a Labor Law claim arising from a construction accident. Trief & Olk regularly represents individuals injured on construction sites in a wide variety of circumstances. If you have been injured in a construction accident, contact Trief & Olk by telephone or via our website’s submission form to find out more about how Trief & Olk can help you.

Don’t Forget The Tip (and Consider Leaving Cash)

Under current federal law, the minimum wage is $7.25 an hour. For tipped employees, like restaurant servers, who work in states other than Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington, their wage is likely to be even lower since under federal law an employer is allowed to take a “tip credit” (provided it meets certain requirements) against the minimum wage and pay that employee a “tipped wage” of only $2.13 an hour. (This practice is also permitted under state law other than in the seven listed above, although many states have set a higher tipped wage (and minimum wage). For example, under current law, the minimum tipped wage is $7.50 per hour while the full minimum wage in New York is $9.00 per hour.) Unlike the regular minimum wage of $7.25 per hour, which has increased periodically over the last 30 years, the federal tip wage has been stuck at $2.13 for over 20 years – losing 40% of its value in real terms over that period.[1] As a result, restaurant servers, who are predominantly women, are three times more likely to live in poverty than other Americans.[2]

Consumers may not realize that servers are dependent on the tips they receive to pay their bills. Additionally, when a customer pays by credit card (including the tip), it is permissible under federal law for the employer to reduce the employee’s tip to account for the processing fee that the credit card company the employer, as long as the deduction does not cause the employee to earn less than the minimum wage. For example, where a credit card company charges an employer a 3% processing fee, the employer may deduct the same 3% (paying the tipped employee only 97% of the tips) without violating the law. When a server is earning the sub-minimum wage of $2.13 an hour, a 3% reduction in tips can be significant. Receiving no tip at all can be devastating.

While some states are considering eliminating the distinction between tipped and non-tipped wages and pressure on Congress to increase the minimum wage would likely also include an effort to increase the federal tipped wage may eventually be raised, that day is not here yet, a fact you should keep in mind when you dine out or order take-out.

 

Sources:

[1]https://www.whitehouse.gov/sites/default/files/docs/20140325minimumwageandwomenreportfinal.pdf

[2] http://rocunited.org/wp-content/uploads/2012/02/ROC_GenderInequity_F1-1.pdf

Update: CFPB Considers Ban on Arbitration Clauses

As anticipated, consumers are set to regain the power to sue banks under a proposal unveiled by the Consumer Financial Protection Bureau (“CFPB”). The proposed rule would restrict the use of arbitration clauses in consumer financial contracts that had barred consumers from pursuing class actions in court, instead requiring them to attempt individual actions in arbitration.

Studies have shown that without the class action mechanism, few banking customers ever make it to arbitration as claims are typically minor—ranging from suspicious $5 late fees to $35 overdraft charges. As Ted Trief recently explained to the National Law Journal, “For small disputes it’s fairly clear [that] without a class action remedy they will not be addressed.”

The new rule is expected to take effect next year after a 90-day public comment period and drafting of the final rule. The rule is not retroactive; therefore it will only apply to new agreements rather than existing ones. Customers wishing to take advantage of the change can close their accounts and re-open new ones after the rule has been implemented.

Trief & Olk has extensive experience in class action litigation involving financial issues, having served on the plaintiffs’ executive committee in nationwide lawsuits against the country’s largest banks centered on deceptive overdraft practices.