1. Employee Benefits: What It Means When ERISA Applies to Your Insurance Case Clay Williams SinclairWilliams LLC Birmingham, AL mcw@sinclairwilliams.com

2. What Is ERISA?  The Employee Retirement Income Security Act of 1974 is a comprehensive and complex federal enactment that applies to most claims for employee benefits.  Was initially envisioned in response to rising reports of corporate mishandling of large pension plans, but was amended at the last minute to address “employee welfare benefits”  Employer-Provided Insurance as “Employee Welfare Benefits”

3. Usual Forms of Employer-Provided Insurance:  Health and Dental Insurance  Accidental Death & Dismemberment  Life Insurance (Basic and Supplemental)  Long-Term Care  Short and Long Term Disability (sometimes called “Income Protection” insurance)

4. ERISA Plan or Not? … The Dillingham Test  Ask if there was a “plan” by inquiring whether “from the surrounding circumstances a reasonable person [could] ascertain the intended benefits, the class of beneficiaries, the source of financing, and procedures for receiving benefits.” Donovan v. Dillingham, 688 F.2d 1367 (11 th Cir. 1982) (en banc).

5. ERISA Plan or Not?... Key Inquiry: Employer’s Intent  Whether the employer “established or maintained” the plan with the intent of providing benefits to its employees.

6. ERISA Plan or Not? … “Safe Harbor” 29 C.F.R. § 2510.3-1(j): Four requirements-- 1.Employer or employee organization (a union, for example) makes no contributions to the plan 2.Employee’s participation is voluntary 3.Involvement of the employer is limited to being a go- between, but does not involve “endorsement” of the plan 4.The employee organization receives no consideration in connection with the program, other than reasonable compensation for limited administrative services.

7. Is it an ERISA plan?  Even if it meets the definition of a “plan” and does not qualify under ERISA’s “safe harbor” regulation, it may not be a plan if the employer is a governmental entity or church organization

8. So ERISA Applies … What Now?

9. Welcome to Federal Court and Goodbye to Your State Law Claims!  Federal jurisdiction -- especially if the claim is brought under something other than ERISA § 502(a)(1)(B), so be prepared for removal despite your best efforts to plead otherwise! See 29 U.S.C. § 1132(e).  “Super-preemption” -- Preempts state law causes of action (breach of contract, etc.), and defenses, see 29 U.S.C. § 1144(a). The only exception exists as to policies obtained by governmental or church entities. See 29 U.S.C. § 1004(b).

10. ERISA’s Own Unique World of “Civil Procedure” Two Phases to an ERISA Claim: 1)Administrative Process [the “trial”] 2)Action for Statutory Relief under 29 U.S.C. § 1132(a)(1)(B) [the “appeal”]

11. ERISA’s Own Unique World of “Civil Procedure” 1.The “Trial” of your case takes place before the insurance company administrator, not the Court, in the first instance. This means:  Claimant must present all evidence to insurance company pre-suit and pursue all of the insurance policy’s internal appeals before filing suit  Once suit is filed, you are prohibited from submitting additional evidence. The Court will only look at those documents that were before the insurance company.  Discovery almost never permitted  Deferential standard of review

12. ERISA’s Own Unique World of “Civil Procedure” 2.Exhaustion of “Administrative Remedies” with Insurance Company:  Appeals must be submitted in writing and on time to the administrator/insurance company  Failure to exhaust or pursue appeal within time set forth in the plan document and/or insurance policy is tantamount to allowing a Statute of Limitations period to pass

13. ERISA’s Own Unique World of “Civil Procedure” 3.Strict Limitation on Remedies:  Generally cannot recovery anything more than the benefit at issue.  Punitive damages are not available  Extra-contractual remedies precluded

14. 10 Common Mistakes Made by Claimants and Attorneys Unfamiliar with ERISA Claims

15. 10. Filing Suit Before All Remedies Have Been Exhausted

16. 9. Failing to Identify and Pursue Potential “Ancillary,” “Collateral” or “Follow-On” Benefits When There is Disability, Such as HWOP, LWOP, or Pension Credits

17. 8. Delay in Filing For LTD Benefits Because of Policy Offset for Social Security Disability, Worker’s Compensation, Benefits, or Other Similar Incomes … and Vice Versa

18. 7. Failing to Obtain Important Evidence Supporting the Claim During the Administrative Appeal

19. 6. Assuming Medical Records Alone or an “Opinion Letter” from a Physician Are Enough to Support Disability Claims

20. 5. Failing to Address Vocational Reviews Used by the Insurance Company/Administrator For Disability Claims

21. 4. Conceding There is “No Discovery” in an ERISA Case

22. 3. Ignoring the Insurance Company/Plan Administrator’s Deadlines

23. 2. Failing to Identify and/or Missing Contractual Limitation Periods Hidden in the Policy or Overriding “Plan Document”

24. 1. Failing to Seek Timely Help from an ERISA Attorney under the Assumption that an ERISA Claim is no Different from an Ordinary Insurance Claim

25. Navigating ERISA benefits is dangerous for the inexperienced …  Evidence necessary to establish a claim is not always clear- cut  ERISA litigation is subject to a different set of procedural rules  Critical deadlines may vary from Plan to Plan, as may limitations periods. Often these deadlines will be buried within “Plan documents” not given to you unless you specifically ask.

26. Employee Benefits: What It Means When ERISA Applies to Your Insurance Case Clay Williams SinclairWilliams LLC Birmingham, AL mcw@sinclairwilliams.com