GREG DELL: Hi I'm Greg Dell here
with attorney Alex Palamara,and we're going to discuss
remedies in an ERISA lawsuit,meaning like what can be
the potential outcomesonce you file an ERISA lawsuitA lot of people
make the assumptionthat when you sue your
disability insurancecompany after they've
denied you that if you wereto win the lawsuit, that you're
going to get this guarantee,they're going to be
on claim foreverSo there's multiple remedies
that come out of itLet's talk about each
of them moving forward,and the pros and
cons of each of them,and what we try to achieve
for a client through a remedy
So what would be
the first optionthat could come out of the
filing of an ERISA lawsuit?ALEX PALAMARA: Well, there
are a few major optionsthat a judge might
have if you goall the way to
letting a judge decidethe outcome of your caseFirst and foremost, the
judge could obviouslyside with the plaintiff
and you win your lawsuitThe judge can decide
with the defendantand you lose your lawsuitOr the judge can
do a third thingwhich is remand
the lawsuit, remandthe claim back to
the insurance companyto do a further
review of the claim
Now if you win the
lawsuit, you don't justget benefits till the age of 65
or social security retirementageThe judge only has authority
to approve benefitsfrom the time that
benefits were denied,until essentially to the
time of the judgment,or sometimes until the time
that the medical documentationproves that you're disabledSo the judge ruling in your
favor it doesn't mean, again,that you get benefits till
the end of the policy,because you have to
continually provethat you're disabled through
the end of the policyAnd most people believe
that they win the lawsuit,I'm on claim for
the rest of my life,or the rest of the
terms of the policy
That's not the caseThe fourth outcome of
a potential lawsuitis also a settlementMany lawsuits end
up in a settlementBut we have to figure out
before you take a settlement,you have to figure out who
has the best course of actionfor your claim
Sometimes it's best to
let the judge decide,and the claim is so
strong that you'regoing to win the
lawsuit, and we canget you those
benefits to the timethat your medical
records prove it,and we can continue
to prove that you'redisabled until the time
that your retirement ageGREG DELL: And why are we even
saying it's a judge decision?ALEX PALAMARA: The
ERISA laws that governmost of these claims, they
take– they did a few thingsAnd one of the things
they did was theytook the right to a jury
trial out of these policiesSo no longer can you
go and file a lawsuitand prove your case
in front of a jury
Now it's in front
of a federal judgeThe reason why they
did this apparentlyis to keep the cases quickerA jury trial can take
days or weeks at a timeA bench trial, it
can take one day
The other reason why
they might have done itis because federal judges tend
to be pretty conservative,and I guess the–I mean I believe that the
insurance companies helppass the ERISA lawsI think they thought
to themselvesthat if a federal judge
is deciding the case,and most federal judges are
pretty conservative peopleto get appointed
to these positions,that they're going to be siding
more along with the insurancecompaniesGREG DELL: OKSo there's the bottom line
is that the judge is going–there's no right to a jury
trial and the judge isgoing to make the decision
So let's talk about the
advantages or disadvantage–well, there's really
not a disadvantageBut what are the riskIf you go through trial,
obviously you can loseYou get nothing
If you win and a judge then has
a decision to make, or eitherI'm going to award benefits
or I'm going to remandIf the judge awards benefits,
is that appealable and what doesthat mean?ALEX PALAMARA: Of
course it's appealableJust because the judge sides
in your favor as a plaintiffdoes not mean that the
check's coming next weekCertainly there's an
appellate process
I mean the lower cases
in district court–and that's just a first
step of your claimThere's appellate courts,
the insurance companywould appeal to
the appellate courtsaying we disagree with the
decision of the lower courtWe're filing an appealThat could add another
year to your claim
I mean sometimes–
it's not a guaranteethat the insurance company's
going to appeal the decisionBut there's a possibility
they could appeal,which again leave your
claim kind of on iceYou're not receiving benefits
until the appellate courtrenders a decisionThe appellate court can
uphold your favorable victoryin the lower court,
or it can overturn it
And then the next step would be
to appeal to the Supreme Courtif you lose your appeal, or
even the insurance company canappeal to the Supreme
Court if they want toGREG DELL: So frames, people
always ask for that processA minimum 18 to 24 months to get
to a verdict in an ERISA caseAn ERISA lawsuit
And then if they appeal you're
looking at a minimum of a yearto another 18 monthsSo you look minimum three years
if the case was to be wonA factor to consider if a
settlement is an option,because even their settlements
after you win a verdict becauseof a potential appealSo the judge also has
the option to remand
And to me remands
are very scary,and unfortunately it's
more than 50% of the casesIt's one of the only types
of cases where the judge hasthat kind of optionI'm either going to award or I'm
going to remand, in the remand,why do you see
that as a negative?ALEX PALAMARA: Well,
it gives another biteat the apple for the
insurance companyto do another
review of the claimThe remand is often used
when the judge says,oh, the insurance
company didn't do this,they should have been afforded
the opportunity to do this,or they should have done that
And since they didn't do that,
I can't give a full decisionon the claimSo let's let the insurance
company take one more reviewat this information that they
overlooked of informationthey should've looked at
or information that was notprovided them or
whatever it may be,and it just gives
the insurance companyanother attempt,
or another chanceto further solidify their
decision to deny the claimsSo remands are very scary for
that purpose, for that reasonaloneGREG DELL: Yeah,
because you think youwon, and the judge
is like well, I'mnot going to award benefits
But I'm going to send
it back to the companyand let them review
based upon what I saidSometimes it's giving
them the roadmapas to how to review
the claim, thenif they do what the
judge says then you'vegot to appeal againYou've got to do an
whole other ERISA appeal,and then you're back
before the judgeAnd so it's a nasty road
if it goes that way
If you do win the case, are
attorneys fees are given?ALEX PALAMARA: Never a givenThe judge has the
discretion to award attorneyfees to the prevailing partyMore often than
not, if the judgedoesn't want attorney
fees they award itin favor of the plaintiffObviously the prevailing
party's the plaintiff
If you lose your lawsuit,
it's not it's not a guaranteethat the judge will award
the attorney's fees in favorof the insurance companyI think the judges realize
that it's a single person whoprobably made an average
typical salary goingagainst a multi-billion
dollar companythat it's almost unfair
to award attorney's feesand favor the insurance companyBut it's not unheard ofThe discretion is in
the judge's hands
We do our best to get
you attorneys fees if wedo prevail on your lawsuitMore often than not we do
get those attorney's feesif we do prevailGREG DELL: And then
what about a remand?Is that considered prevailing?ALEX PALAMARA: YesThe judge does
have the discretionto order attorneys fees
to the plaintiff thewhen the occurrence
of a remand occurs
Again, doesn't mean
it's guaranteedI would even say
it's 90% of the timeIt's definitely something
that we do fight forand we do get more often than
not, when there is a remandGREG DELL: The other
thing on talk about
You win the lawsuitNow you said earlier,
you don't get backon claim for the
rest of your lifeYou go back to that month
to month evaluationDoes that mean that you could
litigate for three years,win your case, and then
the company could cut youoff a month later?ALEX PALAMARA: Man, it
could be the next month
I mean they could be
performing reviewsduring the pendency
of the lawsuit,if they know that
lawsuits going downhill,they could start performing
new reviews of your claim,perhaps quote unquote the
independent position reviewerstake a look at the
medical recordsthat you've submitted for
your lawsuit and your claim,and they can be ready and
lined up so that the monthafter they have to pay
you all the back benefits,they're ready to deny you againAnd that could happenIt's never happened on any
case that we worked on right,but technically it could happenAnd then it starts the
whole process over againwhere you file
another appeal, haveto go through the entire
appellate process,have to go through
another lawsuit
It's a crazy situation that
potentially could happenIt doesn't happen on a
very regular basis with us,but I've read about it
happening in the pastGREG DELL: All right,
so 90% of these casesend with a settlementWhat's the advantage
to a claimantto taking the settlement?ALEX PALAMARA:
Well, give certaintywhere there was no
certainty prior
If you win your lawsuit
you get back on claim,the anvil that the
insurance company is holdingover your head is back againIf there's a settlement
the anvil is taken awayAgain, there's certainty,
you know what you have,you know what you have in the
bank, what you'll be receivingYou don't have to deal with
the insurance company anymore
You don't have to prove
to the insurance companythat you're disabled any longerSo essentially it gives you
kind of a breath of life,breath of fresh airYou don't to have to worry about
the insurance company anymoreever againGREG DELL: A lot of people
want to try to do some work,but they're worried if
while they're disabled,they want to try something
or an opportunity came about,but they're worried that if they
do they'll lose their benefits
If they take a
settlement, do theyhave the ability to
go work, or are theygoing to have to give
money back to the company?ALEX PALAMARA: If a
settlement is taken,you can go to work the next dayI'd wait for the check to
clear, and once the checkclears you can do
whatever you wantYou can go to the
insurance companyand do backflips in
their front yardI wouldn't recommend it, but
it's something you can do
Because once– there's
no takie backsies,as they say in settlementsSo yes, you could go back–go back to work the next dayNow a lot of people
that are disabledare scared to work, because
the insurance company,they use any evidence
they possiblycan to hold it against
you to deny your claimAnd they love to deny claims
Again, but a settlement
will give you certainty,allow you to do whatever
you want to do in life,whether it is–but maybe you want to
attempt to go back to workMaybe you're not sure
whether you can or can't, butthe only way to find
out is by tryingto work a 40 hour a week jobAnd maybe you can actually
hack it, maybe you can'tBut if there's a
settlement, there'sno risk of an insurance company
denying your claim thereafter
GREG DELL: Right the
other thing that I findis that usually within six
to nine months of filinga lawsuit, we're
able to determinethe maximum settlement
offer that we're possiblygoing to get, which compared to
three to four years for takinga claim all the way while the
claimants not getting paidcan be better for a claimantIt's a pick and choose,
everyone's situationis different as
to whether or nota settlement works for themYou're never going to get the
money you would have gottenthrough a settlement that you
would get if you were to waitout the duration of the claimBut you do have that
level of certainty
I mean, whatever the outcome
is that our clients choose,they're the boss at
the end of the dayWe're going to give
a recommendationas to the merits of the case why
we think we can win or not winAnd if we accept the
case almost every timewe're going to be able to get
some kind of settlement offerwhich makes it worthwhile for
a claimant to get somethingrather than nothingAnd then it becomes a business
decision as to whether or notI'm going to risk
x amount of dollarsto possibly get
y dollars, or I'mgoing to take my money now
and move on with my life
And that's an analysis that
we go through every day,considering with thousands of
a ERISA lawsuits that we filedSo wherever you're
located in the country,feel free to call Alex or any
of our disability attorneysWe're going to offer you an
immediate free consultation,we're going to
review your claim,we're going to let you know
if we think we can help you,if it's a case that
we think that wecan get benefits paid for youWe appreciate you
considering us,and we look forward to the
opportunity to speak with you