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January 2014 Archives

Mark DeBofsky has recently written a new article on ERISA law entitled, "HOW COURTS INTERPRET THE MEANING OF 'CIVIL ACTION.

Congress authorized claimants seeking employee benefits due under ERISA to bring a ³civil action² to recover benefits due or obtain appropriate equitable relief. 29 U.S.C. § 1132(a). The Federal Rules of Civil Procedure contemplate only one form of civil action; and civil actions are to be adjudicated utilizing the procedures specified by the civil procedure Rules and by the Federal Rules of Evidence. Yet federal courts have denied ERISA benefit claimants the right to take discovery normally permitted in civil actions, the right to trial by jury, and even, in most cases, the right to a trial in open court involving the examination and cross-examination of witnesses. Mark DeBofsky¹s article explores how the courts developed a quasi-administrative law regime governing ERISA benefit disputes despite Supreme Court rulings defining the contours of what a ³civil action² should consist of. The article further examines how ERISA cases are litigated and the scope of ERISA adjudications. Questions as to whether the current regime for litigating ERISA cases violates claimants¹ Constitutional due process rights are also raised, along with a discussion as to whether remands of ERISA cases violate the finality rule of Article III of the U.S.
Constitution.

Long-Term Care Insurance Denial Leads to Lawsuit

A recently filed lawsuit focuses on one of the pitfalls in long-term care insurance, a critical area of practice for DeBofsky, Sherman & Casciari. The lawsuit, filed in federal court in Connecticut, and titled, "Gardner v. CNA Financial," , alleges that Chicago-based CNA, a major long-term care insurer, wrongfully denied coverage for services provided in an assisted living facility. CNA has also been accused of imposing massive premium increases on its insured. The Gardner lawsuit alleges that CNA changed the terms of its policies to exclude coverage for assisted living services by covering only services provided in nursing homes or facilities staffed 24/7 by an on-premises nurse.

DeBofsky, Sherman & Casciari, PC