DAY ONE | June 24, 2010
8:00 Registration Desk Opens
9:00 Co-Chairs’ Opening Remarks
Elizabeth J. Bondurant
Smith Moore Leatherwood LLP (Atlanta, GA)
Robert K. Scott
Partner
Law Offices of Robert K. Scott (Irvine, CA)
9:15 The Basis for the Claim: Ensuring Factual and Legal Support for Your Positions on Definitions of Policy Language
David A. Bryant
Daley, DeBofsky & Bryant (Chicago, IL)
- Total v. partial disability: examining the continuing tension between the benefit provisions in LTD policies
- Applying the distinctions between “occupation,” “regular occupation,” and “reasonably suited occupation” to your case
- Evaluating “appropriate care and treatment”: what standard should you apply?
- Establishing whether duties are “material and substantial” or “incidental and peripheral”
- Application or avoidance of the “pre-existing condition” exclusion
- When and how “reasonable accommodations” affect disability insurance rights
10:15 Coffee Break
FOCUS ON DISCOVERY
10:25 Discovery in ERISA Cases Post MetLife v. Glenn: Is It Really Wide-Open?
Mala Rafik
Rosenfeld & Rafik (Boston, MA)
William T. Bogaert
Wilson Elser Moskowitz Edelman & Dicker, LLP
(Boston, MA)
Katherine S. Somervell
Bullivant Houser Bailey PC (Portland, OR)
- How limitations by the scope of the administrative record impact discovery
- Continuing impact of MetLife v. Glenn on the discovery process
- responding to increased discovery to claimants
- how insurers are handling their documents and records
- How much has MetLife v. Glenn really opened up discovery? A look at how courts in various jurisdictions have applied the decision
- Evidence of conflict of interest
- “Pattern and practice” evidence in ERISA cases
- Building the file in anticipation of litigation post-MetLife v. Glenn
- Documenting the claim in the wake of MetLife v. Glenn
11:35 Discovery in Individual Disability Cases: Strategies for Success for Both Sides
Scott M. Riemer
Riemer & Associates LLC (New York, NY)
Mark E. Schmidtke
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
(Chicago, IL)
- Scope of discovery in individual disability cases and how it affects internal processes/procedures
- Scope of discovery in a bad faith case
- What plaintiff counsel is most likely to ask for – and get
- Defense perspective
- How should in-house counsel respond to discovery and trial evidence about an insurer’s “character”?
12:35 Networking Luncheon for Delegates and Speakers
1:30 Mental Health and Subjective Disorder Disability Claims: Assessing Conditions, Treatment Modalities, and the Impact on the Case
Mark Levy, MD
Medical Director
Diplomate, American Board of Psychiatry and
Neurology with Added Qualifications in Forensic
Psychiatry, Forensic Associates Medical Corporation (Mill Valley, CA)
George J. Carnevale, PhD
Clinical Neuropsychologist
Vice President
Rehabilitation Specialists Assistant Professor,
Department of Physical Medicine and Rehabilitation,
UMDNJ-NJ Medical School (North Haledon, NJ)
Robert P. Lesko
Wilson Elser Moskowitz Edelman & Dicker, LLP
(Newark, NJ)
- What’s typically covered in the psychiatric evaluation?
- What are the red flags that indicate exaggeration or malingering?
- How to objectively assess functional impairment for psychiatric claims
- Typical long-term prognoses for common conditions
- Determining whether the impairment is a function of the job site or of the occupation itself
- Examples of subjective disorders: making the distinction between organic pathology and mental pathology
- Latest methodology and testing for assessing subjective physical disorders
- Chronic Fatigue Syndrome: new developments, the standard for proper diagnosis and the importance of laboratory testing
- Fibromyalgia: how effective are current treatments?
- The right questions to ask of the insured, the employer and co-workers when conducting interviews in mental health/subjective disorder disability cases
- Fitting together the analysis of the doctors, the tests and the claimant
- Role of IMEs and FCEs in the mental health/subjective disorder disability claims process
- Tips on deposing medical experts in order to get the evidence you need on the record
3:00 Networking Refreshment Break
3:15 Point/Counter Point: The Plaintiff and Defense Bar Speak Out on Dealing With Bad Faith Claims in Disability Insurance Litigation
Kirk Wagar
Wagar, Murray & Feit PA (Coconut Grove, FL)
Wesley R. Payne, IV
White and Williams LLP (Philadelphia, PA)
Martin Rosen
Barger & Wolen (Los Angeles, CA)
- The most recent case law on individual disability disputes generally, and how the issues being litigated potentially impact bad faith claims
- Understanding the common threads in the successful prosecution and defense of disability bad faith cases
- Common practices that can lead to bad faith claims in disability cases
- Implementing “good faith” claims practices that can help defend against bad faith allegations
- Defending bad faith allegations
- Overcoming challenges unique to the trial of a disability bad faith case
4:15 Claims and Lawsuits by Insurers For Benefits Paid Where Fraud is Alleged
Geraldine Sanchez
Pierce Atwood (Portland, ME)
- What has been the basis for fraud allegations in these cases?
- The role materiality of the representations plays in subsequent fraud proceedings
- Alleged “overpayments” and fraud: when do waiver and estoppel apply?
- Arguing justifiable reliance
- what constitutes payments made on a solid body of evidence?
- Disclosure of reports and surveillance tapes: when carriers have to produce their video to the other side
- What is the impact when the video surveillance finds nothing?
- Recent verdicts on use of video surveillance
5:15 Day One Concludes
DAY TWO | June 25, 2010
7:30 Coffee Served
8:30 Co-Chairs’ Remarks
8:45 Statute of Limitations Dilemmas: What Counsel Must Consider in Claimant Communications at the Outset to Prevent Problems Later
Bonny G. Rafel
Bonny G. Rafel, LLC (Livingston, NJ)
- Determining when and in what circumstances the limitation period begins: at claim filing/denial; appeal filing/denial
- How does the filing of a mandatory appeal or the second voluntary appeal toll the running of the limitation periods?
- Viewing the insurance contract as an installment contract where the limitations period renews with each month of benefits: what do the courts say?
- The Clear Repudiation Doctrine:
- when the amount of payment is in dispute
- does it kick in when the carrier informs the claimant of the provision limiting the duration of payment
- or when the claim is denied because the limiting provision under the deadline has been reached?
- Key jurisdictional issues to consider: law of the contract, state law, or law where the claimant resides?
- Protecting yourself from being sued for failing to file litigation in time where Statute of Limitations is uncertain
- A look at key recent cases, including Gassoitt v. Prudential and Miller v. Fortis Benefits
9:30 View From the Bench
The Honorable Edward C. Prado
U.S. Court of Appeals
Fifth Circuit
The Honorable Susan D. Wigenton
U.S. District Court
District of New Jersey
The Honorable James G. Carr
U.S. District Court
Northern District of Ohio
The Honorable Harold Baer, Jr.
U.S. District Court
Southern District of New York
The Honorable Warren W. Eginton
U.S. District Court
District of Connecticut
Moderator:
Pamela I. Atkins
Atkins & Associates, Attorneys-At-Law, LLC
(Atlanta, GA)
The judges’ panel was very highly-rated at last year’s conference – don’t miss it this year! Top federal and state jurists who have presided over disability and ERISA and other insurance litigation matters will provide attendees with candid, practical insights on these and other topics:
- Survey of the individual disability and ERISA landscape
- Methods and processes utilized in deciding cases early
- How to avoid the common mistakes made by litigators
- Novel approaches to trial and case management
- Key do’s and don’ts for counsel
- Trends and developments in 2010 and beyond
11:00 Networking Coffee Break
11:15 Mediate, Settle or Litigate? Making the Right Call – and Then Using Proven Strategies for the Best Result
Edward S. Rooney, Jr.
Member
Eckert Seamans Cherin & Mellott, LLC (Boston, MA)
Robert K. Scott
Partner
Law Offices of Robert K. Scott (Irvine, CA)
Christopher Martin
Partner
Martin, Disiere, Jefferson & Wisdom, LLP (Houston, TX)
Bradley Pinta
Partner
Law Offices of Pinta & Schwartzberg, LLP (Quincy, MA)
- Determining the likelihood of prevailing on summary judgment
- Mediation: evaluating the likelihood of success and preparing your client for the process
- Presenting your case to the mediator: do’s and don’ts
- Determining what the case is really worth
- factors for determining whether to use an actuary
- accounting for probability of recovery
- valuing future LTD benefit streams: insurer actuarial analysis versus claimant present cash calculations
- other considerations: discount rates, cost of living increases, residual/partial benefits
- effect of rehabilitation clauses
- Structured settlements: practical advice and traps to avoid
- Reserves and actual values: critical considerations
- Special considerations when settling the case that’s morphing from STD to LTD
12:55 Networking Luncheon for Delegates and Speakers
2:00 In-House Counsel Panel: Preventing, Managing and Defending Disability Insurance Claims
Cesar R. Britos
Assistant Vice President & Senior Counsel
Unum (Portland, ME)
Jessica Carpenter, Esq.
Attorney
The Standard Insurance Company (Portland, OR)
Lee Sperling
Law Department
Berkshire Life Insurance Company of America
(Pittsfield, MA)
Moderator:
Elizabeth J. Bondurant
Smith Moore Leatherwood LLP (Atlanta, GA)
In this valuable panel, hear from in-house counsel on the front lines at leading carriers. Gain perspectives on claims management, interpretations of current case law, and what they expect from outside counsel. Join a great discussion with plenty of opportunities for Q & A.
3:00 Conference Ends – Master Class Registration Begins
Conference Details
