Tucson Personal Injury Blog

A 15-year-old female Nogales high school student was recently attacked and bitten by a trained police dog. According to the Santa Cruz County Sherriff's office, the attack happened after someone opened the door to the car the dog was in. The dog's handler and two other officers were inside the high school giving a presentation on gun safety at the time.

After students ran to alert the officers, the handler ran outside to catch the German Shepherd. The dog had stopped attacking once the girl was on the ground. The girl was treated for cuts and scratches on her arms and back.

Tucson dog bite attorneys encourage everyone to keep their distance from unfamiliar dogs. Dog bites can cause serious injury and require painful treatment for rabies and even reconstructive surgery. Half of all dog attacks happen to children under 12 years old, but preventing dog bites among children may start with simply educating young people about the danger of unknown animals.

Disability polices provide coverage only if the disability actually prevents you from doing your "occupation." So how the policy defines "occupation" is important. There are usually two types: "any occupation" and "own occupation." The former provide benefits if your disability prevents you from doing "any occupation" you are qualified to do by education, training or experience. For instance, a trial attorney that can no longer handle the stress of being in the courtroom may be disabled from being a trial attorney, but she isn't disabled from doing non-trial work, so she wouldn't get "any occupation" benefits.

The second type of policies, on the other hand, provide a benefit if your disability prevents you from doing your "own occupation." Thus, the trial attorney whose disability prevents her from doing trial work would be covered because she could no longer do her "own occupation." As you've probably figured out, "own occupation" coverage is better, and more expensive than "any occupation" coverage.

Some policies include step-down occupation definitions. The first two years of coverage will be for "own occupation" and then the coverage changes to "any occupation" to age 65.

Most policies define the insured's occupation to be what she is doing at the time she becomes disabled. This sometimes becomes an issue when the insured's disability isn't acute but slowly progresses over time, causing the insured to gradually modify her occupation so that it has changed by the time she files a claim. To cope with her disability, our trial attorney might slowly change her practice to doing mostly appellate work so that, by the time she files her claim, her "own occupation" arguably is no longer that of a trial attorney but of an appellate lawyer, which her disability doesn't prevent her from doing, opening the door for the insurer to argue that she's not disabled under her "own occupation" policy. It might have been better for her to have filed her claim when she was mostly doing trial work so that it was clear that was her "own occupation" when she became disabled (and then she might have been able to collect those benefits and still earn a living doing appellate work).

As you might imagine, there is a lot of litigation over what these occupation definitions mean and how to apply them.

Brenden J. Griffin is a shareholder at Gabroy, Rollman & Bossé, P.C., and has been litigating disability, life, health and ERISA insurance claims for over 10 years. He can be reached at 520.320.1300.

ERISA stands for the Employee Retirement Income Security Act. That is a federal law governing employee welfare benefit plans. Usually, those plans include life, health, and disability benefits; and, usually, those benefits are funded through insurance.

From a claim/litigation standpoint, insurance companies love ERISA because it limits their financial risks and make them more predictable.

First, ERISA preempts state law. That means no state-law claims, like for bad faith or punitive damages.

Second, ERISA's remedies are generally limited to plan benefits, i.e., the underlying benefits at issue (no future benefits, like future disability payments). There is no emotional distress, loss of consortium, or any sort of consequential damages. This allows an insurance company to easily calculate its risk - past benefits, plus interest and attorneys fees. The insurance company doesn't have to worry about the often unpredictable threat "extra-contractual" damages.

Third, ERISA provides federal jurisdiction, so the insurance company always removes ERISA cases to federal court. Insurance companies feel more comfortable in federal court. One reason is because it's usually easier for their lawyers to get admitted pro hac vice in federal court. I know at least one insurance company that used a single law firm to handle almost all of that company's ERISA cases filed in the Ninth Circuit.

Fourth, ERISA changes the "standard of review." In insurance litigation, normally the plaintiff has to prove coverage (e.g., breach of contract, bad faith, etc.) by a preponderance of the evidence. But under ERISA, the insurance policy (usually a group policy called a "plan"), often grants the insurance company (as the "plan administrator") full discretion to decide benefit claims. That means the plaintiff employee has to show that the "plan administrator" abused its discretion in denying benefits. That's a tough standard to meet. The insurance company's decision doesn't have to be the correct one, but one that is merely reasonable - not "arbitrary and capricious."

Fifth, ERISA doesn't permit discovery. Instead, the litigation is basically treated as an "appeal" from an administrative claims process, so the "record on appeal" is limited to the claim file. A corollary to this is that there is no discovery. You can't, for example, depose the claims handler.

Finally, ERISA precludes a jury. ERISA cases are tried to the judge, usually as a "paper trial" through motion practice and submitting the claim file, i.e., the closed "administrative record."

What can the insured do about all this?  Not much.  But see Part 2 of this blog for some things that can help.

Brenden J. Griffin is a shareholder at Gabroy, Rollman & Bossé, P.C., and has been litigating disability, life, health and ERISA insurance claims for over 10 years. He can be reached at 520.320.1300.

Saturday, November 19th, riders of all ages, abilities and walks of life rode up to 111 miles of the scenic areas of Tucson as part of the city's University of Arizona Medical Center El Tour festivities, raising over $1.6 million for several charities. The 2011 El Tour marked the 29th annual event organized by Arizona's Perimeter Bicycling Association of America and attracted over 9,000 cyclists.

The cycling event promotes wellness as well as raises awareness of bicycle safety and the prevention of Tucson bicycle accidents. Cycling and cyclists present a unique safety challenge on our nation's roadways. On average, two pedal cyclist fatalities occur each day. According to the National Highway Traffic Safety Administration, over 600 pedal cyclists were killed and another 51,000 were injured in 2009. This number represents about 2 percent of all traffic fatalities in the nation that year. The National Safety Council reports that cycling-related injuries and deaths cost the public about $4 billion dollars annually.