In Ariana M v. Humana Health Plan of Texas, Inc., 2018 WL 1096980 (5th Cir. March 1, 2018), a divided Fifth Circuit issued an en banc ruling that fiinally overturned Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991) and concurred with every other Circuit that Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) applies the default de novo standard of judicial review to both legal and factual determinations, thus paving the way for the Texas ban on discretionary clauses (TEX. INS. CODE § 1701.062(a), along with similar bans by 25 other states - Nat'l Ass'n of Ins. Comm'rs, Prohibition on the Use of Discretionary Clauses Model Act ST-42-3-6 (2014), http://www.naic.org/store/free/MDL-42.pdf.) to trigger de novo review of benefit denials of health and disability benefit claims.
On December 1, 2014, the U.S. Court of Appeals heard oral argument in the case of Mary C. Fontaine v. Metropolitan Life Insurance Company. The issue before the court was whether an Illinois insurance regulation banning discretionary clauses in health and disability insurance policies survives ERISA preemption claims. The lower court ruled in Fontaine's favor.
In Criss v. Union Security Ins.Co., 2014 WL 2707774, 2014 U.S.Dist.LEXIS 79300 (N.D.Ala. June 11, 2014), Judge William Acker, Jr. challenged the current methodology utilized by courts in adjudicating benefit disputes brought under ERISA. The court based its premise on the universally recognized legal maxim, nemo judex in causa sua; i.e., "No man should be the judge in his own case." (citing Chief Justice Sir Edward Coke in Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610)). In derogation of that principle, the court noted that "clearly conflicted ERISA plan administrators and insurers, when granted by the plan document that they drafted full discretion to interpret their plans and to decide the ultimate issue of entitlement, are routinely allowed, even required, to rule on their own cases."
In Fontaine v. Metropolitan Life Ins.Co., 2014 U.S.Dist.LEXIS 41253 (N.D.Ill. March 27, 2014), DeBofsky, Sherman & Casciari scored a major victory in securing an award of long-term disability insurance for a partner in a major law firm. The plaintiff, Mary Fontaine, enjoyed a successful career as a partner practicing in the field of structured finance for the law firm of Mayer Brown in Chicago where she worked for thirty years. As a benefit of her employment, Fontaine purchased both long-term disability and individual disability income insurance from MetLife. Unfortunately, she had to seek benefits under both policies due to myopic macular degeneration, which progressively worsened her vision from when the condition was diagnosed in 1997 until 2011 when she ceased working. Although several treating and examining doctors, along with other vocational and functional test results supported Fontaine's claim, MetLife denied the claim and a pre-suit appeal. Fontaine then brought suit against MetLife, and the parties agreed to present the case to the court as a trial on the papers pursuant to Federal Rule of Civil Procedure 52. The court ruled for Fontaine.
On June 19, 2013, Judge Marvin Aspen from the U.S. District Court for the Northern District of Illinois issued a ruling in a case brought by DeBofsky, Sherman & Casciari. Schlattman v. United of Omaha Life Ins.Co., 2013 U.S.Dist.LEXIS 85906 (N.D.Ill. June 19, 2013) is yet another ruling preserving the uninterrupted streak of court rulings upholding the Illinois ban on the inclusion of discretionary clauses in health and disability insurance policies. The court determined that 50 Ill.Admin.Code § 2001.3 was properly promulgated within the scope of the authority possessed by the Illinois Insurance Director and that the regulation survives an assertion of ERISA preemption. The regulation provides:
Borich v. Life Ins.Co. of North America, 2013 U.S.Dist.LEXIS 56974 (N.D.Ill. April 26, 2013)(Issues: Standard of Review; Discovery).