Lockwood v. Hicks and Nationwide Ins. Co., CV 05-4256

Type of Case: Motor Vehicle Collision & Workers Compensation Facts: At about 6:30 am on April 18, 2005 the Defendant lost control of is car. His car went off the roadway at over 50 miles per hour and across an apartment complex parking lot. The car hit a van parked in front of the Plaintiff’s apartment. The force of the impact launched the van into the Plaintiff’s apartment where the Plaintiff was sitting on his living room sofa having a cup of coffee and checking his morning office e-mail on his laptop. The van partially landed on the Plaintiff shattering his collar bone and severely injuring his foot as well has hurting his back and neck. The Defendant claimed he blacked out because of a sudden medical emergency, which is a defense to a claim of negligence under Alabama law. During the discovery phase of the lawsuit, it was determined that the Defendant’s “black-out” was caused by his misuse of medications.  Mark Wolfe represented the victim in his liability case as well as his workers’ compensation case.  A policy limits settlement was reached in the liability case and the victim received a Permanent Total Disability award on the workers compensation claim.

Westbrook, et al v. Jones, CV-00-1173

Type of Case: Wrongful Death-Motor Vehicle Collision Facts: This tragic accident occurred on June 20, 1999 in Mobile County, Alabama when a drunk driver ran a red light at a high speed and crashed into a van occupied by the Westbrook family and friends as they were returning from a trip to Disney World. Four year old Joia White was killed in the accident and her grandfather, Elmore Westbrook, Jr. died about two weeks later from complications of his injuries. Because there was limited insurance coverage available, Mark Wolfe did not charge a fee for his services. A 2.5 million dollar judgment was obtained against the drunk driver for the victims and their families.

Holmes v. Progressive Halcyon Insurance Company, U.S. Federal District Court No.1:07-487

Type of Case: Motor Vehicle Collision  Facts: On July 29, 2005 Dewana Holmes of Mobile was driving in Montgomery. As she was stopped in traffic her vehicle was rear-ended by another driver. At first, she did not think she was injured bad enough to require a trip to the emergency room. However, after a few days the pain complaints in her lower back had gotten worse and she sought follow up care from her family doctor in Saraland. This began a long and arduous course of care and treatment which ultimately required surgery for a herniated disk in her lower back. The surgery did not fully relieve her pain complaints and she ultimately had to stop her work as an insurance billing clerk for an area dentist. The insurance company for the at-fault driver eventually paid the limits of their liability insurance coverage, but that amount was inadequate to compensate Dewana for the totality of her injuries. Because of this she filed a lawsuit against her own automobile insurance carrier (Progressive)for underinsured motorist benefits. Progressive vigorously denied her claim for benefits and aggressively defended the case. At trial, the Progressive attorney told the jury that Dewana and her husband were trying to “put one over” on their insurance company. The jurors did not believe that and after only 30 minutes of deliberation they returned a verdict for Dewana in the amount of $205,721.07 which was the exact amount requested by BF&W attorney Mark Wolfe in his closing argument.

Tyler v. WillBros Group Inc., CV 08-900951 – Mobile County

Type of Case: Motor Vehicle Collision Facts: Early on the morning of November 27, 2007 Mr. Tyler was on his way to work. He was traveling on St. Stephens Road when a vehicle coming the opposite direction suddenly swerved into his lane of travel striking his vehicle head-on. The vehicle that struck Mr. Tyler was being operated on behalf of the Defendant, WillBros Group, Inc. Mr. Tyler suffered numerous injuries including a complex fracture to his hip that required surgery and hardware to repair. He was out of work for almost a year recovering from his injuries. Mr. Tyler, through his hard work, was able to return to his pre-collision employment with no physical restrictions. He was also lucky enough to have an employer who held his job open for him during his recovery and rehabilitation. Mark Wolfe of BF&W represented Mr. Tyler in the matter. A settlement of $650,000.00 was reached shortly after the mediation and a few weeks before trial.

Life Insurance Claims: Important Information for Beneficiaries and Claimants

IMPORTANT INFORMATION ABOUT LIFE INSURANCE CLAIMS©
By: Mark Wolfe, Attorney at Law
Mobile, Alabama
mark@bfw-lawyers.com

While most of us hope that a life insurance claim arising from the death of a loved one will be a simple and hassle free process, the fact is many life insurance claims are initially denied. These denials can be for many reasons. Some times the reasons for such a denial are legitimate, but many times they are wrong. In fact many insurance industry experts say that up to 40% of life insurance claim denials are done so wrongly.

This article will help you with some basic information about life insurance claims and locating policies. Then the article reviews common reasons why life insurance claims are initially denied and concludes with important information for claimants if the claim is denied.

I. LIFE INSURANCE CLAIMS & LOCATING OTHER POLICIES

Notify the Company of the Claim. While this is a very basic step it can be a little difficult if the policy is older. Mergers and acquisitions of life insurance companies can make locating the correct successor or remainder company a little difficult. However, internet searches can usually help you quickly identify the correct company name and location for claim notification. Also, many life insurance agents or attorneys who handle life insurance claims have this information available or access to the correct resources to help identify where and how the claim should be submitted.

What You Need to Do. Once you’ve contacted the company you must complete the claim form. Many of these claim forms can now be downloaded from the company’s web site. At the very least you will have to submit a copy of the death certificate and the company may require additional records related to the claim. Always reference the claim number or policy number (or both) on all documents or material submitted. Until the claim is paid in full: Keep copies of all correspondence and documents sent to the life insurance company. Keep all letters and material sent from the life insurance company. If a claim is denied, make sure you understand and comply with the requirements for an appeal. (IMPORTANT: Please make sure to read more about appealing a denial below.) Why are so many life insurance claims denied? Most life insurance claims adjusters recognize that many life insurance claimants do not question or challenge a denial of life insurance benefits. This means that if there is a “close call” on whether or not benefits should be paid, they automatically opt for denial first in hopes the claimants will just “go away.”

Locating Additional Policies. It’s a fact, many life insurance benefits go unclaimed because beneficiaries do not realize a policy exists. Below are some tips for locating additional life insurance policies.

1. Review the decedent’s check book or bank statements looking for premium payments,

2. Review the decedent’s tax returns for the last several years to see if interest or cash dividends from a life insurance policy were listed. There should be a corresponding 1099-INT from the life insurance company. These payments will be reported directly on form 1040, 1040A and 1040EZ or on Schedule B if an itemized tax return was filed,

3. Contact the decedent’s employer and/or former employers to see if any type of life insurance was offered through the company’s benefit plan program and if the decedent purchased a life insurance policy or was provided a life insurance policy through employment,

4. Review all disability policies for the decedent to see if death benefits are also provided,

5. Review any known life insurance policy to see if additional benefits such as double indemnity for accidental death may apply.

6. Check with the decedent’s auto insurance company or homeowner insurance company. Many of these companies will also offer life insurance policies for their customers.

II. DENIAL OF BENEFITS AND APPEALS

Standard life insurance claim denials. Many times if a basic life insurance claim is denied, it is done so based upon a process known as “retroactive underwriting.” This is a claim investigation technique that allows the insurance company to more fully and completely examine the deceased’s prior medical history. These prior medical records are reviewed thoroughly to see if the deceased left out or failed to disclose a pre-existing medical condition when completing the life insurance application. This “failure to disclose” is then used as grounds to deny the life insurance benefits. However, most claimants are not aware that such a denial must have materially effected the underwriting risk associated with issuing the policy. Simply put, the company must be able to legitimately argue that “but for” the undisclosed prior medical condition, the policy would not have been issued or the rates for the policy would have been significantly different. The issue of “material risk” is a complex issue that is often legally debatable.

Accidental death or double indemnity benefits. Some companies issue stand alone accidental death life insurance policies or some standard life insurance policies have a “double indemnity clause” which pays twice the face value of the policy if the death is caused by an accident. Yet the policy language concerning the term “accidental death” is often drafted so vaguely that it gives the company lots of “wiggle” room to initially deny accidental death benefits. Terms like “sole and only proximate cause of death”often involve complex medical and legal analysis but give the company a very legalistic sounding excuse not to pay.

BEFORE YOU FILE AN APPEAL OF A DENIAL. If you have questions about the denial of any life insurance benefits, make sure you fully understand your rights and obligations under the policy. Most life insurance policies allow claimants to file an appeal of the decision to deny benefits. Yet many times claimants are unaware of the potential consequences of simply “appealing” the denial. Generally, once a company has denied the life insurance claim, the claimant has the burden of identifying specific reasons for the appeal and providing supporting documents or records to support the appeal. If the life insurance policy in question has been provided through the decedent’s employment or through a group, the failure to comply with the appeal requirements can be extremely detrimental. In one recent example a Federal Court determined that the claimant’s failure to submit any “new evidence” during the appeal process provided for in the plan, precluded the claimant from presenting that new evidence at trial. [See Hancock v. MetLife, 590 F.3d 1141 (10th Circuit 2009).]

NOTE: If the claim is denied consider consulting immediately with an experienced life insurance claims attorney in your State. Note: Most attorneys who handle life insurance claims for beneficiaries do not charge for a consultation and work on a contingency fee (no benefits = no fees). Also, many times an experienced attorney can help resolve a denied claim before having to resort to filing a lawsuit.

III. CONCLUSION

While life insurance claims should be simple and easy, they can often times become arduous and legally complex. The simple fact is insurance companies do not like to pay claims and have tremendous resources to fight claims. With many claimants of life insurance benefits in a state of grief and mourning, the insurance company knows it has the upper hand and this often results in the wrongful denial of life insurance benefits. If you believe your claim for life insurance benefits has been wrongfully denied, please consider consulting with an experienced attorney who knows and understands this area of the law.

Note from the author: If you are reviewing this publication or link during a time of loss, please accept my condolences and sympathy for your loss. I pray that you find comfort and understanding for your loss and that the passage of time will replace the sorrow of your loss with the joy and blessing of the memories of moments shared. – Mark

What Should I Do After the Accident?

AT THE ACCIDENT SCENE

1. Remember the three C’s of safety:  Be Calm, Be Clear and Be Careful. Check on all drivers and passengers to determine the extent of injuries. 2. Get medical attention for anyone who may need it. Call the police. If you are not sure whether medical personnel or police are needed, it is better to be safe than sorry: so call them. Many times people do not think they are hurt at the accident scene only to wake up the next day in tremendous pain. Also, property damage that appears minor can be a lot more extensive and expensive than it first appears. In both those situations, the lack of a police report regarding the accident could be detrimental to your insurance claims. 3. Make a mental note of the location of the vehicles and any other physical evidence such as skid marks or gouge marks. Look for landmarks that you can reference such as street signs, posts, road markers, reflectors, etc.  As soon as possible you may want to sketch a rough diagram of the accident scene indicating the location of the physical evidence. Also, if possible you may want to try to get photographs of the accident scene. 4. Try to identify witnesses to the accident. Get the name, phone number and address of anyone who may have witnessed the accident. 5. Exchange information with the other driver. It is generally advisable to limit your conversation with the other driver to basic information such as: Name, address, phone number, driver’s license number, tag number and basic insurance information. 6. Tell the investigating police officer what happened and make you sure you tell him or her about any pain complaints or problems you may be experiencing. Also, ask the officer when the accident report will be ready and how you go about getting a copy of it. 7. Photograph and/or video the scene and vehicles. Make sure to photograph skid marks, gouge marks, etc that might be helpful in establishing the point of impact.

WITHIN 24 HOURS OF THE ACCIDENT

1. Notify your insurance company of the accident.  Under most insurance policies you have a duty to timely notify your company of an accident, even if you think the accident is the other driver’s fault, and you must cooperate with your insurance company as they investigate and/or process any claim. Get the name and phone number of each person you talk to and write down the claim number assigned to your claim. 2. Get a copy of the police report as soon as it is ready. Review it carefully for accuracy. If you find an error or disagree with the conclusions, write the investigating officer a letter indicating the errors and/or explaining why you disagree with the conclusions.  If you have the name of a witness who is not referenced on the report, provide that information to the officer.  Date your letter and keep a copy for your file. 3. If you think the other driver was at-fault or responsible for the accident, notify his or her insurance company of your claim. When dealing with the at-fault driver’s insurance company, remember they have no obligation to tell you what your rights are or how to best use the available insurance benefits. Also, be very cautious as to what you say about the accident or injuries. Your conversation may be being recorded or in the very least the adjuster will be taking notes about everything you say. (Note: In Alabama it is not illegal for one party to a conversation to record the conversation without telling the other party that the conversation is being recorded.) Your initial conversation should simply be enough to establish that a claim is being made and to find out the process for property damage and/or bodily injury claims. Get the name and phone number of each person you talk to and write down the claim number assigned to your claim. 4. Take pictures.  Many times accident victims do not get pictures because the insurance company has taken photographs. Those photographs are the property of the insurance company and they are not obligated to share copies with you unless they are requested during a lawsuit, by which time the photographs may have been lost or destroyed.

  • Take pictures of the damage to your vehicle. Don’t forget to get photographs of interior damage such as broken seats.
  • Take pictures of the accident scene and any physical evidence such as skid marks. (Note: Pictures of the accident scene should only be done if  it can be done safely without danger to you or other drivers.)
  • Take pictures of any noticeable physical injury such as cuts, bruises and/or abrasions.

5. Find out about your rights and what types of insurance coverage may be available to you.  This usually requires consultation with an experienced personal injury attorney. Most experienced personal injury attorneys do not charge for consultations and the mere fact that you consult with an attorney does not obligate you to hire or retain an attorney. Many times car accident injury victims are reluctant to consult with an attorney because they do not want the insurance adjuster to think they are “being greedy.” Also, insurance adjusters are trained to discourage claimants from consulting with an attorney. Remember, a claimant that does not know his or her rights is at a great disadvantage when trying to resolve a claim.

INJURY CARE AND TREATMENT

Please remember, if you have been injured in an accident, the most important aspect of this matter is not your financial recovery, rather the most important issue is your health and your physical recovery from your injuries. No amount of money will “undo” the injuries you have suffered and your goal should be to do everything you can to limit the long term consequences of your injuries. To that end we suggest the following: 1. Tell your treating healthcare provider about all pain complaints or problems you believe are related to the incident in question. 2. Follow the treatment schedule prescribed by your healthcare provider. Remember your doctor wants you to make a good recovery from your injuries and he or she has been trained to get you back to normal as quickly and efficiently as possible. Many times injury victims will begin to feel a little better and decide to quit receiving treatment even though they have not completed their full treatment schedule. Medical studies have clearly shown that incomplete treatment can result in long term physical consequences. As you can understand, the law will not hold an at-fault party responsible for future problems related to the injury if the victim’s own actions contributed to those future problems. 3. Make sure you tell your doctor of any improvements in your condition and if your condition gets worse, please notify the doctor immediately. 4. If you cannot keep a scheduled appointment with your healthcare provider, please notify his or her office as soon as possible. Failure to report in advance may result in a N/S (no show) being marked in your chart. Remember, the insurance adjuster will be reviewing your treatment records and a N/S in the file may be used against you. 5.  Follow any restrictions or limitations prescribed by your healthcare provider. We recognize that there is no such thing as a convenient time to be injured; however, if your doctor limits your activities please follow those limitations. Again, the treatment schedule and procedures have been established for the purpose of getting you back to normal as quickly as possible.  A few days off of work after an injury may be financially difficult now but it is better than having a lifetime of chronic pain and disability because you didn’t adhere to the restrictions imposed by your healthcare provider. Also, remember more and more insurance companies are using surveillance techniques to determine the true nature of a claimant’s injuries.  Surveillance tape of an injury victim failing to follow physical restrictions or limitations can be devastating to the claim. 6. Full disclosure to your healthcare provider is important. Report prior similar injuries to your doctor. We recognize that on initial in-take forms prior similar injuries are often inadvertently left off or forgotten; however, in the hands of a crafty insurance defense lawyer such an omission can be used against you. Also, remember the insurance company has access to your entire health insurance claim history and may already know about a prior similar injury. As a rule, if you are not sure whether or not it’s important…disclose it and let the doctor decide.