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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.

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.

Trief & Olk Attorney Included in Super Lawyers List by Thomson Reuters

We have some exciting news at Trief & Olk. In 2015 and 2016, partner Ted Trief was included in the Super Lawyers list, an honor issued by Thomson Reuters to 5% of attorneys. 

The Super Lawyers and Super Lawyers Rising Stars lists are issued by Thomson Reuters. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. No aspect of this announcement has been approved by the Supreme Court of New Jersey.

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

Understanding Your Homeowner’s Insurance Coverage

Homeowners assume that once they have obtained insurance for their home, they are protected if a loss – such as damage to due to a fire or storm, stolen property, etc. – later occurs. Unfortunately, it is often only after having a claim denied by the insurance company that the homeowner realizes that the policy did not in fact provide the coverage that the insured homeowner thought she had paid for.

The gaps in coverage may result from one of the following common occurrences:

  • The insurance policy defines the “residence” that is covered in specific terms but the home does not meet that definition. For example, if “residence” is defined as the location where the insured is currently living but the insured is temporarily living elsewhere, the insurer can deny coverage.
  • The insurance policy covers losses for certain contents or personal property but the amount of coverage is much lower than the amount of losses suffered.
  • The insurance policy excludes losses from certain types of events or arising under certain circumstances. For example, most basic policies do not include coverage for damage due to flooding; a separate policy would be required to cover this type of loss.

Courts in New Jersey and New York expect the homeowner to have read the policy and will allow an insurer to deny a claim if such a denial is clearly based on the policy’s terms. See Busker on the Roof P’Ship v. Warrington, 283 A.D. 2d 376, 377 (1st Dep’t 2001) (citing Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416 (1920)); Martinez v. John Hancock Mut. Life Ins. Co., 145 N.J. Super. 301, 310 (App. Div. 1976), cert. denied, 74 N.J. 253 (1977).

To avoid being unpleasantly surprised to find that expected coverage does not pan out, it is essential to read and understand your policy. In particular:

  • Review the definitions and the types of losses that are covered and those that are excluded. If there is a gap, consult your agent or broker to see if you can purchase additional coverage. For example, it may be possible to purchase additional flood insurance if the policy excludes this type of loss.
  • Review the dollar amounts on any limits to the coverage offered and compare those limits to the value of your home and contents. If you think the proposed coverage may not be adequate, ask your broker what a higher level of coverage would cost in terms of the additional insurance premium so you can make an educated choice between lower coverage (with a lower premium) and higher coverage (with a higher premium).
  • If you have a tenant occupying part or all of your residence (whether part-time or full-time), make sure you understand how your coverage is impacted by the tenant. If the tenant causes damage to your personal property, is the loss covered? If the tenant damages the premises she is renting, is the loss covered? If you are unable to rent the premises, does the policy cover lost rental income?
  • Review any conditions imposed by the insurance company for changes in circumstances. For example, if you will be away from the home for more than 30 days, the home may be technically “abandoned” under the terms of the policy, in which case the insurer could deny coverage for losses that occur in your absence. Advance planning is essential, as it may be possible to maintain coverage if your provide notice or purchase additional coverage for the home while it is unoccupied. Similarly, if the insured property is unoccupied while substantial renovations are undertaken, check with your insurer to see if the home would be covered or if separate coverage can be purchased.

Trief & Olk represents homeowners (and businesses) in claims against insurance companies and brokers for denial of claims relating to fires, theft, and other losses. If you have suffered losses from an insurance company’s failure to pay a claim, please contact our attorneys, who are licensed in New York, New Jersey, and Massachusetts, for more information or to discuss your case.

CFPB Considers Ban on Arbitration Clauses

The Consumer Financial Protection Bureau (“CFPB”), the federal agency responsible for regulating the consumer financial industry, appears poised to regulate arbitration clauses that restrict consumers’ relief when a dispute arises between them and their financial service provider.

In recent years, large corporations – particularly those in financial services industries – have been including mandatory arbitration clauses in their customer agreements. These provisions, which are generally buried in the fine print of an already lengthy “take or leave it” contract, often include a class action waiver, which blocks the consumer from bringing a class action – whether in court or in arbitration – to remedy harm suffered by them and other consumers. Because these class action waivers are deliberately designed by financial service providers to block consumers from effectively vindicating their rights, the CFPB is taking a hard look at these contract provisions. While the CFPB is not considering banning arbitration clauses entirely, it has proposed making arbitration clauses inapplicable in cases that are filed as potential class action lawsuits.

The need for the CFPB to intervene is clear. In a recent study published by the CFPB, the agency found that arbitration clauses are pervasive, with tens of millions of consumers covered by such clauses in contracts involving financial services, including credit cards, checking accounts, student loans, and mobile wireless contracts. That study also looked at the number of claims pursued through arbitration or federal lawsuits by consumers against such firms over a two year period, finding that only about 25 cases per year involved consumers’ claims seeking $1,000 or less demonstrating that consumers generally did not seek redress for individual matters that involved small claims. In stark contrast, the CFPB study found that 32 million consumers each year who were not restricted by arbitration clauses were able to join class action lawsuits and therefore were able to obtain redress through class action settlements. These class actions also brought about necessary change to improper business practices, providing consumers with additional valuable relief.

In a recent speech given by CFPB Director Richard Cordray, he recognized that “[b]y joining together to pursue their claims as a group, affected consumers would be able to seek and, when appropriate, obtain meaningful relief that as a practical matter they could not get on their own” and that the proposals the CFPB is considering “would deter wrongdoing on a broader scale.” As Mr. Cordray aptly stated “[c]ompanies should not be able to place themselves above the law and evade public accountability simply by inserting the magic word ‘arbitration’ in a document and dictating the favorable consequences.”

The CFPB has received feedback in response to its proposals and the next step will be for the agency to publish a Notice of Proposed Rulemaking and seek public comment before finalizing the rule.

Trief & Olk, which represents consumers in class actions brought against financial service providers, is encouraged by the CFPB’s actions and will continue to monitor the progress of CFPB’s rulemaking as it unfolds.

Supreme Court Permits Use of Representative Evidence [Update re Tyson Foods]

Plaintiffs in class actions scored a victory in the Supreme Court, with a 6-2 opinion authored by Justice Kennedy, in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ____ (2016). In Tyson Foods, the Court affirmed that the use of so-called “representative evidence” – such as a statistical sample – is permissible for establishing liability in a class or collective action.

In Tyson Foods, employees who worked in a Tyson pork-processing facility in Iowa, brought overtime claims against the company under the Fair Labor Standards Act (FLSA) and state law for the company’s failure to pay them overtime compensation for donning (putting on) and doffing (taking off) personal protective gear before their shifts formally started and after their shifts ended. The district court certified the FLSA claim as a collective action and the state law claim under Rule 23 of the Federal Rules of Civil Procedure. The plaintiffs prevailed at trial, proving liability and damages by using information from individual plaintiffs’ timesheets, along with a study performed by an expert, who analyzed the average times for donning, doffing, and walking to their assigned stations, based on 744 employee observations.

The defendant challenged the use of this study, and sought to have the Supreme Court issue a sweeping rule preventing class action plaintiffs from using statistical sampling altogether, relying on an earlier Supreme Court case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011). Justice Kennedy rejected the defendants’ argument that Wal-Mart v. Dukes stands for a wholesale rejection of representative evidence. Slip op. at 13. Instead, he explained that “[w]hether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. . . . The fairness and utility of statistical methods in contexts other than those presented here will depend on facts and circumstances particular to those cases.” Slip op. at 15.

Here, because Tyson Foods had no records from which the plaintiffs could establish the amount of time spent donning and doffing the protective gear and walking to their workstations, the jury could rely on the plaintiffs’ expert’s statistical study. Because Tyson Foods did not offer evidence to discredit the substance of the statistical analysis (such as evidence that the study was inaccurate or that the sample was not statistically valid), the jury could draw reasonable inferences – as it did – regarding the amount of time spent on the activities at issue.

Barely a week after Tyson Foods, the Supreme Court signaled its acceptance of the use of “representative evidence,” when it declined to review a pair of cases on appeal from the Pennsylvania Supreme Court, in Wal-Mart Stores, Inc. v. Braun and Wal-Mart Stores, Inc. v. Hummel. There, the Pennsylvania state court permitted the plaintiffs to calculate damages for the entire class of almost 200,000 employees based on expert analysis extrapolating from testimony of six plaintiffs. Wal-Mart appealed to the Pennsylvania Supreme Court, protesting what it viewed as “trial by formula.” With the U.S. Supreme Court’s denial of the review, the Pennsylvania court’s ruling will remain good law.

Trief & Olk represents employees in actions under the FLSA and state laws challenging unlawful wage and hour practices, such as failing to pay minimum wages and overtime, both in collective and class actions. Employees that come to Trief & Olk often express concern that they cannot bring a lawsuit against their employer for unpaid wages because their employer did not keep any records of their time. These recent decisions by the Supreme Court reaffirm what has long been the law – an employee may prove such claims even if they can only extrapolate from the experience of other employees to prove their own claims.

Unaccepted Offers Do Not Halt Class Actions

One of the many tools defendants use to stem class actions involves paying a claimant their full damages at the outset of the lawsuit. The theory being, if the person bringing the lawsuit is now fully compensated, they have no standing to carry the case forward and thus no standing to represent a potential class action. This practice was recently addressed by the U.S. Supreme Court.

In Campbell-Ewald Co. v. Gomez, No. 14-857, the Supreme Court held that an unaccepted settlement offer of complete relief to a named plaintiff—proffered under Rule 68 of the Federal Rules of Civil Procedure—had “no force” and did not moot a class action. The Court reasoned that like any unaccepted contract offer, there were no lasting rights or obligations created between the parties. Thus, once the offer lapsed, adversity between the parties remained and a court was not deprived of its subject-matter jurisdiction.

At first glance, the decision may appear to bolster the class mechanism, yet the Court carefully noted that the holding was predicated upon the strictly prescribed facts of the case. That is, Campbell involved a situation in which the defendant merely tendered an offer to the named plaintiff, but did not take any additional steps such as placing the settlement funds with the court or some third-party.

The Court specifically declined to address this hypothetical, noting:

We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.

However, there should be little doubt concerning how the Court would rule in such an instance. Indeed, the dissents go on to offer a step-by-step guide—culminating with a defendant “deposit[ing] a certified check with the trial court”—explaining how to properly utilize a Rule 68 Offer of Judgment to moot a case.

Trief & Olk was recently on the receiving end of this guidance, wherein a defendant directly wired our named plaintiff a settlement offer in excess of her individual damages.