Author Archives: Evan Schwartz

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About Evan Schwartz

Evan Schwartz founder of Schwartz Law in Garden City, NY.

EMAIL: ess@schwartzlawpc.com

BIO: About Evan

PHONE: 800-745-1755

Metlife Long-Term Disability Policy Holders Beware
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Metlife Long-Term Disability Policy Holders Beware | Evan Schwartz

Metlife stopped selling individual disability insurance last year, but kept all of its policies and continues to administer them and manage the claims. In insurance company lingo, this block of policies is in “runoff,” meaning that Metlife is not actively selling policies, and is winding down and closing out what it has already sold.

This is a situation typical in the insurance industry, where a company has a block of business that is no longer producing fresh revenue (other than the premiums from paying policyholders that have already purchased policies). Financial modeling leads to increased claim scrutiny, which results in more claim denials and terminations.

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Plant Company’s Growing Stock Ruined, Insurance Company Forced to Pay Claim
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Plant Company’s Growing Stock Ruined, Insurance Company Forced to Pay Claim | Evan Schwartz

A Michigan federal judge recently granted a large plant-growing company’s summary judgment motion in a case against its insurer over coverage for thousands of plants that died following a cooling system breakdown. Not surprisingly, the court based its ruling on the interpretation of the language of the insurance policy. The business and plaintiff in the case, Sawyer Nursery, has 300 greenhouses in Michigan and suffered a power outage that disabled the blower fans that keeps its plants from wilting.

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$300 Million—Plus Ruling Favors NJ Transit Against Insurer—Words Matter!
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$300 Million—Plus Ruling Favors NJ Transit Against Insurer—Words Matter! | Evan Schwartz

In light of the recent hurricanes that have decimated parts of the United States, Puerto Rico and the Caribbean, it is important to remember that ongoing battles that resulted from older natural disasters continue—in particular, from Superstorm Sandy.

Last month, a New Jersey judge ruled that the New Jersey Transit Authority is not subject to a $100 million cap for its flood losses suffered in connection with Sandy. This ruling is significant in that the damages exceed $400 million—more than $300 million of which has been in dispute.

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Long-Term Disability Buyouts—What You Need to Know
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Long-Term Disability Buyouts—What You Need to Know | Evan Schwartz

Lump sum buyouts of long-term disability policies can happen at any particular time during the course of a claim. Claimants need to know that there are opportunities available with some companies, but not with others, to receive buyouts.

•There are some long-term disability insurance companies who buy out claimants just to get them off the books, rather than continuing to pay their benefits.

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Cyber Fraud Insurance Coverage: More Coverage Than You Think!
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Cyber Fraud Insurance Coverage: More Coverage Than You Think! | Evan Schwartz

A recent decision by a New York federal judge in the burgeoning area of cyber coverage has significantly expanded the scope of covered losses that involve scams or theft by the hackers and scammers in cyberspace. The name of the case is Medidata Solutions v. Federal Insurance Company, and it was just decided in July of this year.

The officers and employees of Medidata were the targets of an email spoof, whereby scammers obtained access to the Google platform upon which this company operated. They were sent email messages that appeared to come from the president of the company, directing the key people in the company to wire transfer money in connection with a fictitious acquisition that was close to being finalized.

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Filing in Federal or State Court? The Answer May Significantly Affect Your Case
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Filing in Federal or State Court? The Answer May Significantly Affect Your Case | Evan Schwartz

When suing for long-term disability benefits, an important choice for your lawyer is whether to file the lawsuit in federal court or state court. New York State provides an interesting contrast for the purpose of evaluating this choice: Jury Unanimity In civil cases in New York State, a civil jury consists of six people—only five have to agree to meet the unanimity requirement. In federal court, complete unanimity is required—all jurors (usually 6 but sometimes more) have to agree whether or not the policyholder is totally disabled or disabled within the meaning of the policy.

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Insurance Companies Beware of Bad Faith Denials of Claims in the State of Washington
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Insurance Companies Beware of Bad Faith Denials of Claims in the State of Washington | Evan Schwartz

This is an important, recent decision from the Supreme Court of the State of Washington, its highest court, involving a personal injury situation arising from a homeowner’s claim. The name of the case is Xia v. Probuilders Specialty Insurance Company, which was decided in April of this year. The case involved a woman who bought a townhouse. She became gravely ill after moving in: the manner in which the water heater was installed in her home was causing a release of carbon monoxide. 

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Lessons from Hurricane Ike: Texas Revives Statutory Bad Faith
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In the recent decision of USAA Texas Lloyds v. Menchaca, the Texas Supreme Court ruled that homeowners and other insureds can rely on Texas law to seek damages against insurance companies for unfair and deceptive practices in their investigations and payments or non-payments of insurance claims. In this case, a homeowner’s claim resulted from property damage caused by Hurricane Ike. Although the damage was not substantial, the Texas Supreme Court ruled that absence of substantial damages does not limit an insured from seeking recovery under the Texas Insurance Code for violations.

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Late Notice is Not Always Late!
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Late Notice is Not Always Late! | Evan Schwartz

A case was just decided in January of this year by the highest court in the state of Maryland, which is known as the Maryland Court of Appeals. What the Maryland high court did was require that the insurance company, National Union, cover an animal rights group’s portion of a $16M settlement for a RICO violation against two high-profile circus operators.

Two of the circus operators (including Ringling Brothers and Barnum & Bailey Circus) alleged that the animal rights activists paid off witnesses to testify about their mistreatment of African Elephants in order to shut down the circus performances. These large circus act companies sued multiple animal rights groups alleging Federal Civil RICO violations—allegations that ultimately resulted in an almost 16-million-dollar settlement.

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Insurance Company Reservation of Rights Letters—Better be Specific!
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Insurance Company Reservation of Rights Letters—Better be Specific! | Evan Schwartz

A recent case decided by the Supreme Court of South Carolina, Harleysville Group Insurance v. Heritage Communities Inc., exemplifies an important lesson for lawyers on both sides of the insurance recovery spectrum—particularly concerning reservation of rights letters sent by insurance companies.

In the case, two Myrtle Beach condominium complexes were built with major construction defects. A lawsuit was brought against a series of developers, resulting in multi-million dollar verdicts. Harleysville Group Insurance was one of the insurance companies that was going to be partially responsible for paying out these verdicts—indemnifying its insured, Heritage Communities.

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Is Prudential Not Paying Your Long-Term Disability Claim?
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Is Prudential Not Paying Your Long-Term Disability Claim? | Evan Schwartz

Prudential Life is an insurance company that sells a large number of group Long-Term Disability (LTD) insurance policies—and has only been selling group LTD insurance policies for a long time. In the last year, Prudential has really stepped up its claims scrutiny and has been denying and terminating LTD claims in far greater numbers than they have in the past. Because they only sell group disability insurance, the vast majority of policies they sell are governed by the Employment Retirement Income Security Act of 1974 or ERISA. I have previously blogged about ERISA and the difficulties that ERISA creates for claimants who have denied or terminated LTD claims.

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Do You Have Claims-Made Professional Liability Coverage? Know Your Reporting Requirements
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Do You Have Claims-Made Professional Liability Coverage? Know Your Reporting Requirements | Evan Schwartz

Professional Liability Insurance (PLI) is generally sold as claims-made coverage—a unique type of time-limited coverage primarily for professionals. Typical examples of PLI coverage include:

•Legal malpractice for attorneys;

•Medical malpractice for physicians;

•Employer Practices Liability Insurance (EPLI);

•Directors and officers (of corporations) liability insurance;

•Media liability insurance;

•Brokers’ errors and omissions insurance; and

•Cyber-liability, technology errors, and omissions insurance coverage (this product is new).

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CLE Course: Recent Litigation and Legislation in Insurance Law
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CLE Course: Recent Litigation and Legislation in Insurance Law | Evan Schwartz

In addition to my law practice, I have the honor of serving as a faculty member on LawLine.com, which is the largest online, continuing legal education (CLE) provider in the United States. I have 11 lectures available, some of which I delivered on my own, and some with the help of my partner, Matthew Conroy. Those lectures are available for purchase and viewing on LawLine. Today, I want to talk to you about two lectures that Matthew Conroy and I will be giving on May 1st. The first part of the series is titled, “Recent Litigation and Legislation in Insurance Law.” We will offer an update for the legal profession on the trends in insurance coverage litigation.

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Mental and Nervous Limitations in Long-Term Disability Policies
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Mental and Nervous Limitations in Long-Term Disability Policies | Evan Schwartz

Many, if not all, group long-term disability policies contain a mental and nervous limitation, as do some individual disability insurance policies. Typically, the limitation stipulates that the policy will only pay the insured for disabling psychiatric conditions for a finite period of time. Usually, the period is 24 months, but it can be shorter or longer depending on how the policy is written. It is important that disabled individuals fully understand the limitation including:  •What it states; •What it applies to; and •What it does not apply to.

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Trying a Long-term Disability Case: The Big Gamble?
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Trying a Long-term Disability Case: The Big Gamble? | Evan Schwartz

{3:35 minutes to read} Having participated in a number of long-term disability trials over the years, I can tell you that the trial process is an exhilarating experience—for an attorney—but is a very daunting and painful process for you, the claimant. It is extraordinarily expensive, time-consuming, and high-risk. A long-term disability trial is an all-or-nothing proposition. In most cases, you either win and get all your back-benefits and benefits paid into the future, or you lose and get nothing.

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Why You Need a Lawyer Before Filing an LTD Claim
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Why You Need a Lawyer Before Filing an LTD Claim | Evan Schwartz

3:40 minutes to read} Many years ago, before 1995, a professional could file a long-term disability claim on their own and likely get paid. After 1995, the industry changed dramatically. Many companies went out of business in the long-term disability space, claims were being denied and terminated like wildfire, and litigation spawned all over the country on a massive basis; a huge industry shakeup happened. About ten years later, long-term disability insurers started selling these policies again, but they changed their claims management model.

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Pursuing A Bad Faith Claim Against Your Insurance Company
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Pursuing A Bad Faith Claim Against Your Insurance Company | Evan Schwartz

{3:20 minutes to read} An insurance company engages in bad faith when it unreasonably denies, delays, terminates or underpays your claim. For example, if the insurance company refuses to pay for your homeowner’s claim or your business interruption claim, or to compensate you for harm caused due to water or fire damage, these denials may have been made in bad faith.                             Bad faith conduct happens frequently. There is an analysis that requires a skilled attorney to help you determine whether there is a possibility that the insurance company has engaged in bad faith conduct, based on how they have treated your claim.

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High Scrutiny of Long-Term Disability Insurance Claims by Insurance Companies
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High Scrutiny of Long-Term Disability Insurance Claims by Insurance Companies | Evan Schwartz

{3:30 minutes to read} Filing a claim for long-term disability benefits is an exhausting and complicated process—especially in the early stages. Professionals need to be wary of what this process entails in order to be prepared and ensure that their claim is approved. Upon receiving a long-term disability claim, insurance companies carefully and extensively examine it before they acknowledge their liability to pay the claim. A simple medical report and claim form will not be sufficient. In today’s environment, insurance companies treat disabled professionals seeking benefits like suspects in a criminal conspiracy.

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Do You Think You Have a Bad Faith Insurance Claim?
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Do You Think You Have a Bad Faith Insurance Claim? | Evan Schwartz

{3:40 minutes to read} In my last blog, I spoke about what bad faith is generally. In this blog, I discuss a few preliminary considerations when you are wondering if your insurance company has treated you in bad faith and whether you can do something about it. Is the insurance policy governed by federal law or state law? •Federal – Group policies obtained through your employer are ordinarily governed by a federal law, known as the Employee Retirement Income Security Act (ERISA). Policies governed by ERISA cannot have a bad faith claim under any circumstances.

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Insurance Bad Faith
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Insurance Bad Faith | Evan Schwartz

{2:00 minutes to read} The term “bad faith” is used when an insurance company unreasonably denies, delays, terminates, or underpays a claim. First-party bad faith specifically refers to the contract between you/your business and the insurance company (as opposed to the insurance company paying a claim made against you or your business from a third party). Examples of first-party bad faith could include your insurance company’s refusal to pay for: •Homeowner’s claims; •Business interruption claims; •Property damage suffered due to water or fire, etc.;

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Top 5 Ethical ‘Dos and Don’ts’ Attorneys Need to Know
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Top 5 Ethical ‘Dos and Don’ts’ Attorneys Need to Know | Evan Schwartz

My partner Matthew Conroy and I recently presented a continuing legal education seminar called Ethical Dos and Don’ts for Attorneys. That seminar is available online at Lawline. During the seminar, we covered a great deal of topics including the top five examples of attorney conduct that can lead to the filing of a grievance.  Here they are: 1. Misuse of client funds: As a lawyer, I encourage you to be very cautious regarding client funds. If the funds aren’t yours, don’t touch them unless you have an absolute right to them, typically for hours billed under an hourly fee agreement, assuming your jurisdiction allows you to take undisputed amounts of money.

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Risk Management for Attorneys – Part 1: Document, Document, Document
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Risk Management for Attorneys – Part 1: Document, Document, Document | Evan Schwartz

My partner Matthew Conroy and I recently presented a continuing legal education seminar to lawyers on risk management for attorneys. That seminar was broadcast live and is available online at lawline.com. During the seminar, we covered many topics. For part one of this blog, we will address: •Risk management strategies to avoid claims for legal malpractice; and •Understanding how client fee disputes arise and how to manage them. In almost every matter for which you represent a client, you must have a written engagement or retainer agreement.

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Know Your Rights During An IME (Part 2)
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Know Your Rights During An IME (Part 2) | Evan Schwartz

My last article discussed the governance of an IME and how to prepare for one. This article shares my advice concerning what happens during an IME.   When it comes to physical versus mental or cognitive examinations, there are a lot of unresolved questions across the country. The answers vary, both under federal and state law. For example, do you have the right to: •Have a lawyer present during the IME? •Have a third party witness present, such as a spouse, sibling, nurse, or doctor, or lawyer?

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What is an IME & How Do I Prepare for One?
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What is an IME & How Do I Prepare for One? | Evan Schwartz

{3:55 minutes to read} In the world of claims or lawsuits against insurance companies, IME is an acronym for Independent Medical Examination. These examinations are never truly independent, however. IMEs are requested by insurance companies, and they have the power to hire someone who is more likely to give an outcome that’s favorable to them. That is who they typically hire. Especially in the context of long-term disability claims, the insurance companies themselves no longer call these examinations “independent.” Instead, they often use the acronym EME, which stands for Evaluative Medical Examination.

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Discretionary Authority Under ERISA
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Discretionary Authority Under ERISA | Evan Schwartz

{3:30 minutes to read} Discretionary authority can have, and has had, a devastating impact on the ability of people to get paid by their insurance companies.  Long-term disability policies, health insurance policies, and other types of coverage obtained through a private employer are typically governed by a federal law called ERISA—the Employee Retirement Security Act of 1974.

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Trigger of Insurance Coverage: A Basic Primer
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Trigger of Insurance Coverage: A Basic Primer | Evan Schwartz

{4:35 minutes to read} When you buy a policy and transfer risk to an insurance company in exchange for payment of a premium, the incidents, events, or circumstances covered by your policy are called triggers of coverage. The trigger of coverage depends on the type of policy you have. Conditions of Coverage People are often confused about the difference between when coverage is triggered and when conditions are met.

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Unum: The Insurance Giant Continues to Terrorize the Villagers
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Unum: The Insurance Giant Continues to Terrorize the Villagers | Evan Schwartz

{2:35 minutes to read} Still the largest disability insurer in both the United States and the United Kingdom, Unum Group has had a long history of allegations against it relating to its claim practices. Unum Group includes a series of companies that were acquired as a result of a merger between Unum Corporation and The Provident Companies of Chattanooga, Tennessee. Those companies primarily include:

•Unum US;

•Unum UK; and

•Colonial Life.

Underwriters primarily include:

•Provident Life and Accident Insurance Company; and

•The Paul Revere Life Insurance Company.

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What Did Sandy Teach Us About the Flood Exclusion?
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What Did Sandy Teach Us About the Flood Exclusion? | Evan Schwartz

{2:25 minutes to read} Recent storms such as Sandy and Irene have proven that the Northeast is extremely vulnerable to major flooding. They also made many people aware that most homeowners’ and business owners’ insurance policies have something called a flood exclusion. A flood exclusion means your insurance will not cover damage that was caused primarily by tidal flooding (water from an ocean, bay, or the like spilling over its ordinary containment and causing damage). This exclusion can exist for people both inside and outside “flood areas.”

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Under the Microscope: Examination Under Oath
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Under the Microscope: Examination Under Oath | Evan Schwartz

{4:48 minutes to read} An examination under oath—or EUO, as we call it in the business—is a tool that’s been in the insurance company arsenal for a hundred years. The concept arose to help insurance companies investigate suspicious claims and the potential for fraud, usually involving property or liability claims. An examination under oath is very much like a deposition, except that a lawsuit isn’t pending; instead, it occurs as part of the claims process with the insurance company.

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An Insurance Company’s Duty to Defend (Part 1)
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An Insurance Company’s Duty to Defend (Part 1) | Evan Schwartz

{6:70 minutes to read} There are a few things that you, as the insured, should know when the insurance company hires a lawyer on your behalf.  For liability claims that are covered by insurance, businesses and individuals have two types of protection: 1. The insurance company will hire and pay a lawyer to defend the insured when a claim is covered or potentially covered by the policy. 2. The insurance company will pay, or indemnify, the insured up to the limits of the policy’s indemnity limit that was purchased (the coverage limit).

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