Accidental Death & Dismemberment (AD&D) cases are growing in number in Federal and state courts. In this and a future set of articles, we will dive into the legal issues faced by practitioners from the time of intake through briefing or trial. The perspective is my perspective: the controlling law in the Eleventh Circuit since most AD&D cases are governed by the Employee Retirement Income Security Act (ERISA).
Here are the big picture issues:
1. Threshold questions: Before we get to the merits, we must wrestle with whether our potential client is covered by AD&D insurance. Don’t take that as a given. If he or she was terminated from employment shortly before death there might not be coverage. The majority of AD&D claimants receive their insurance through an employer-sponsored plan. Under most plans, coverage lasts only as long as the deceased was employed. Thus, someone fired the day before her accidental death has no AD&D coverage. This is only one initial consideration. One must also determine the identity of the beneficiaries, the benefit amount and the time left from a total of 60 days to lodge a pre-suit appeal.
2. Defining “Accident”: Most of us will intuitively define an “accident” more broadly than most courts. Here, we must examine subjective, objective, hybrid and other legal tests to determine whether an “accident” occurred. We’ll learn along the way that some fact patterns fail almost every test. Recognizing these patterns is key to developing an AD&D
3. Mastering Exclusions: Cases surviving the “accident” test must then survive one or more policy exclusions. Here are some of the most common: a) suicide, b) illness i.e. a pre-existing condition causing the death or dismemberment, c) death or dismemberment caused by medical treatment and d) death or dismemberment while intoxicated or following overdose.
4. ERISA-The Game Changer: As mentioned, most AD&D cases are governed by ERISA. ERISA is a procedurally complex law that imposes a pre-suit appeal process unfamiliar to most practitioners. In fact, the court in most ERISA cases sits in an appellate capacity and conducts little fact finding. Mastering AD&D law requires mastering ERISA law.
As we begin to dive deeper in the next articles, we’ll turn our attention first to the threshold issues. If you’d like to explore any topic within AD&D law, please let us know by comment below.
