Insurance Claim Denials

Widow Denied Her Husband's Life Insurance: On the eve of trial, a woman retained Dwyer & Brennan to try the jury case. Her husband had died, and she had sued the life insurer that had refused to pay the insurance benefits on her husband's life. The insurer insisted that the husband had lied on his insurance application when he denied smoking. The insurer's proof depended entirely on its investigator's interview of the widow and her signed statement — written in English by the insurance investigator — which stated that her husband had been a smoker. At trial, though, the widow — a native Spanish-speaker — testified that she had not told the investigator that her husband had smoked. The firm argued that the signed statement was suspect, partially because the widow did not read, understand and speak English well. Before the jury returned a verdict, the insurer made a settlement offer that the widow decided to accept.

Without Starting a Lawsuit, Dwyer & Brennan Persuades a Disability Insurer to Reverse its Denial of Benefits: The firm was hired by a trial lawyer who suffered from ischemic optic neuropathy. His optic nerves had been damaged by the loss of blood supply, as a brain suffers from a stroke or a heart from a heart attack. But the lawyer's insurance company had denied his claim for disability benefits. The insurer's consulting doctor had given his opinion that the lawyer was not disabled, citing the fact that the lawyer could see well enough to read and drive a car. With the help of a medical specialist called a neuro-ophthalmologist, the firm persuaded the insurer — without having to start a lawsuit — that, while the lawyer could drive and read, he could not do two important job tasks required of a trial lawyer: (1) he could not see well enough to evaluate the facial expressions of everyone in the courtroom during the trial (jurors, witnesses, lawyers and judge); and (2) he could not speed read documents unexpectedly offered into evidence during trial. After reading the firm’s written argument, the insurer reversed its decision and agreed to pay the disability benefits until the lawyer reached the age of 65 unless he, not the insurer, decided that he was able to return to work.

Artist Whose Insurer Refused to Reimburse Him after His Studio Was Burglarized: Burglars broke into an artist's studio and stole many paintings, but his insurer refused to pay. The insurer gave two reasons for its refusal: (1) the artist had failed to complete the sworn proof of loss required by the policy, and (2) the artist had falsely completed his original insurance application, entitling the insurer to rescind the policy. The artist retained Dwyer & Brennan, which filed a lawsuit against the insurer. On the insurer’s first reason for refusing to pay (failure to submit sworn proof of loss), the law generally requires dismissal if the claimant has not filed a proof of loss, and the artist admitted that he had not done so. But the firm raised the counter-defense of substantial compliance: everything that the insurer could conceivably have hoped to receive in its sworn proof of loss form could be found in the documents and information that the artist had given to the insurer's private investigator. On the insurer's second reason for refusing to pay, it was undisputed that the artist had been burglarized another time — before he applied for his insurance — and that he had failed to disclose this on his insurance application. The firm countered by pointing out that the insurer — which had the burden of proof on this defense — had not come up with convincing proof that (1) it had denied others' applications for similar coverage when it had known of an earlier burglary or (2) it had published underwriting guidelines that had announced its alleged policy to reject or rate of applicants with a history of one earlier burglary. Without such proof, the artist's incorrect answer did not matter (it was not what the law calls a "material" misrepresentation). Hearing these counter-defenses, the insurer agreed to pay the artist's insurance benefits.

Serious Personal Injury and Wrongful Death Cases

Wrongful Death of a Young Woman — Medical Malpractice: The parents of an eighteen-year-old girl who had died came to Dwyer& Brennan after other lawyers had declined to take on their case. Their daughter had been diagnosed with hepatitis, but, after treatment by doctors at an HMO and New York City hospitals, she died, leaving a one-year-old son. The doctors and one of the hospitals were blaming the deceased girl for not following instructions. The young woman had not followed the doctors' instruction, but the firm proved that her failures had not caused her death, but that it was the doctors' mistakes that had done so. The firm obtained all the medical records and did some basic medical research on the different kinds of hepatitis and the proper way to treat each. Based on the firm’s own study, it appeared that the doctors had given inadequate care, so the firm retained two different medical specialists who advised precisely how the doctors had misdiagnosed the kind of hepatitis and, worse, had failed to treat the young woman correctly and, by doing so, had caused her death. The firm filed suit and, on the eve of trial, the defendants agreed to settle the case. The settlement included an annuity sufficient to provide medical insurance, private school tuition, and college and graduate school tuition for the young boy.

Brain-Damaged Baby — False Medical Records: A young mother retained Dwyer & Brennan after her baby was born with cerebral palsy, spastic quadriplegia and severe brain damage. She told the firm how she had been neglected and left alone for hours in a hospital's maternity department. But the hospital's records contradicted the mother and reported that nurses had regularly checked on the mother. The firm disproved the hospital's defense before a jury, showing – through inconsistencies in the records themselves and testimony both by the hospital's doctor and by the expert obstetrician the firm retained – that the mother's testimony was true and the hospital record was not. In the middle of trial, the hospital agreed to a settlement that provided for more than $10,000 a month tax-free income for life. The firm persuaded the court to apply some of the funds to pay for health insurance for the baby's entire family. Before that, the immigrant family was dependent on Medicaid. Now the baby's entire family receives the best medical care money can buy.

Young Woman Bitten on the Face by a Dog: The firm represented a young woman employed as an office manager by a veterinary hospital. Without any warning, a dog owned by a veterinarian bit the woman on the face, tearing off part of her lip and leaving her scarred and unhappy with her appearance, even after two plastic surgeries. The defense lawyers moved to dismiss the case, arguing that: (1) the woman had voluntarily assumed the risk by working in the animal hospital where she knew sick dogs could bite her, and (2) she had failed to follow known safety procedures. In response, the firm urged the judge to deny the motion because New York law required that a jury decide both issues, at least on the proof the firm had given the court. The judge agreed and ordered the case to go to trial. On the day the parties went to court to select the jury and start the trial, the defense conceded and agreed to pay the damages sought by the young woman.

Proving a Seat Belt Defense Despite Police and Hospital Reports to the Contrary: The firm defended a young woman who had driven through a stop sign and struck the car driven by the plaintiff. The plaintiff had suffered a fractured neck. The injured plaintiff, the police accident report and the hospital emergency room records all reported that he had been wearing a seatbelt. But based on the type and location of his injuries and the physical damage to his car, the firm concluded that the plaintiff had been wearing a seatbelt. The firm found engineering and medical literature about how the neck must move to cause the plaintiff’s particular fracture, and that literature suggested that the plaintiff could have suffered his fracture only if he had not been wearing a seatbelt. The firm then retained a seatbelt expert who was also an orthopedic surgeon. He reviewed the evidence and agreed that the plaintiff had not been wearing his seatbelt. Because the young woman had missed the stop sign, the firm tried to settle the case for the young woman, but the plaintiff repeatedly refused a settlement offer, insisting that he should receive much more money than the amount offered being offered. During the jury trial, however, the plaintiff changed his mind and agreed to accept the longstanding settlement offer. The plaintiff's change of heart came immediately after he listened to the Dwyer & Brennan lawyer’s opening statement explaining the seatbelt defense in detail to the jurors.