would be tried on the administrative record, i.e., the claim file maintained by the insurer. • Issue No. 1: “What is the Administrative Record?” Under the Federal Rules, a party
must disclose all of the evidence it will rely upon at trial as its “Initial Disclosures.” (
Fed.Rules Civ. Proc., rule 26(a)(1)(A) (ii).) In an ERISA case, this usually means that the defendant/insurance carrier identifies or produces its claim file; some- times termed the “administrative record,” at the onset of the litigation. In this case, the defendant produced close to 1000 pages, with its Rule 26 Initial Disclosures. Defendant characterized the documents as the “non- privileged portions of the administrative record.” The “administrative record” however,
depends on what was decided by whom and the issues in the case. (Abatie, at p. 970, citing Doe v. Travelers Ins. Co. (1st Cir., 1999) 167 F.3d 53, 57.) An experienced ERISA practitioner will tell you that what defense counsel terms “the administrative record,” the plaintiff’s attorney will call “a portion of the claim file.” In this case that turned out to be true. After a discovery dispute, it was
revealed that the insurer had not pro- duced the file it maintained in its “Special Investigations Unit” (“SIU”) with its Rule 26 Initial Disclosures. Why? The insurer contended that information in that file was not “relied upon” by the claim repre- sentative assigned to the claim. The dis- trict court thought that the carrier’s hair- splitting concerning which documents were relied upon was inappropriate. After a “Motion to Determine the
Administrative Record,” the court held that since the file was “maintained and/or created” by the insurer during the claim process, the SIU File contained relevant documents that were required to be pro- duced to the insured during the claim process. If the carrier was required to pro- duce the documents to the insured dur- ing the claim process, then it must be a part of the “administrative record” to be reviewed by the court at trial. In this case, the SIU File contained revealing information. Although the
insurer contended that its claim decision was free of conflict and that its claim han- dling was not influenced by the amount of the benefits, the sizeable amount of the monthly benefit, the claim reserve and the “loss of premiums” associated with the
claim were handwritten in the SIU refer- ral and acceptance notes. • Issue No. 2: Discovery of the standards used to evaluate the claim Under California law, a plaintiff’s attorney would not think twice about a
Need a Go To CALL JUDICATE!
Andrew S. Albert, Esq.
Hon. Russell Bostrom, Ret.
Hon. Chris R. Conway, Ret.
Jack Daniels, Esq.
Thomas Dillard, Esq.
Gary Donovan, Esq.
Janet Rubin Fields, Esq.
Darrell Forgey, Esq.
Darryl Graver, Esq.
Robert Kaplan, Esq.
Jeffrey Krivis, Esq.
Michael Moorhead, Esq.
Peter Searle, Esq.
Robert M. Tessier, Esq. Hon. John Leo Wagner, Ret.
For more information call (800) 488-8805 or visit us at
www.judicatewest.com JUNE 2011 The Advocate Magazine — 59
Mariam Zadeh, Esq.
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