The Battle Over Discretionary Clauses Continues: An Update on State Discretionary Bans, the Latest Case Law Developments Stemming from These Bans, and Examining the Ultimate Impact of a Discretionary Clause/Ban on a Disability Case

January 21, 2016 11:05am

William Patton
Shareholder
Lane Powell PC

Jennifer Danish

Bryant Legal Group PC

John J. Myers

Eckert Seamans Cherin & Mellott, LLC

  • Update on state prohibitions on discretionary clauses: which states have banned such clauses? How have the states varied in their application of such clauses?
  • Which discretionary ban statutes have been effective? Which have been not so effective?
  • How are these discretionary bans being disputed by different insurance carriers? What are the different arguments being used by the insurance companies to avoid these bans?
  • An examination of the latest case law developments stemming from discretionary bans
  • Is state regulation of discretionary clauses preempted by ERISA?
  • Is a ban on discretionary clauses applicable if it conflicts with the plan’s choice of law provision?
  • Do state bans on discretionary clauses apply to policies “issued or delivered” in another state?
  • Can a state ban on discretionary clauses be applied retroactively?
  • What does evolving case law say regarding the language included in these clauses? What can the scope of them be?
  • What have the courts been saying regarding the fairness and permissibility of such clauses?
  • Can you evade the savings clause by putting discretionary language in the plan document separate from the policy?
  • Examining the ultimate impact that discretionary bans can have on discovery and a disability case overall