Dwyer & Brennan’s Main Practice Areas
ERISA Benefits
Insurance Benefits
Individual and Small Business Litigation
Serious Personal Injury and Wrongful Death
ERISA Benefits
Congress passed ERISA — the Employee Retirement Income Security Act
of 1974 — primarily to address pension abuse, but ERISA governs claims
for other employee benefits, too. With few exceptions, ERISA applies to
all claims for employee benefits, including insurance coverage offered by
an employer to employees or by a union to its members.
ERISA presents unusual challenges for claimants. Almost all courts have
ruled that a person who sues to recover ERISA benefits has no right to a
jury trial and, in fact, no right to a trial at all (a trial in the traditional sense
with the right to present evidence and, especially, to cross-examine
witnesses). In most cases, courts do not permit an ERISA claimant to
offer any testimony or other evidence not already in the insurance
company's own file. Finally, courts will even defer to an insurance
company's decision, requiring a claimant to prove not only that the insurer
incorrectly denied the claim but that the insurer did so arbitrarily (without
any reasonable basis). Courts describe this deferential standard of review
as the abuse of discretion or arbitrary and capricious standard.
In this unusual procedural setting, expert legal advice is vital. And the
earlier the claimant obtains that legal advice, the better. Most ERISA
cases are won or lost during the claim procedures, including the filing of
the claim and, if the claim is denied, the "appeal" or "request for review." In almost all cases, a claimant needs a knowledgeable lawyer to prove
under ERISA’s procedures that the insurance company or employee
benefit plan abused its discretion by denying the claim arbitrarily.
Besides having knowledge of the ERISA procedural rules, Dwyer& Brennan has had experience with many different medical conditions, both
injuries and sicknesses. The firm has worked with complicated medical
facts, communicating with treating doctors and experts, and impeaching
self-serving insurance company physicians and other experts. Among
others, the firm has handled cases involving the following disabling
medical conditions:
- Chronic neck (cervical) and lower back (lumbar-sacral) pain, with
and without herniated discs, sciatica, and radiculopathy, and
including failed back syndrome
- Chronic neurological conditions, including paresthesia and
peripheral neuropathy
- Chronic vascular conditions, including ischemic optic neuropathy
- Arthritis
- High blood pressure and other cardiovascular diseases
- Orthopedic conditions, including spondylolisthesis and
degenerative diseases
- Thoracic outlet syndrome
- Myofascial pain syndrome
- Migraine headaches
- Lupus
- Fibromyalgia and chronic fatigue syndrome
- Mental and emotional illnesses, including depression, OCD,
bipolar disorder, and anxiety
Insurance Benefits
State law, not ERISA, governs claims made for benefits obtained by
purchasing an individual insurance policy or a group insurance policy (but
not through employment). In contrast to the unusual procedures under
ERISA, claims for insurance benefits governed by state law are handled in
the traditional way – with the right to a trial with testimony and the right to
have the case decided by a jury. There is no need to exhaust plan or
administrative remedies; if the claim is denied or delayed, the insured
person may file a lawsuit without delay.
Both Gerry Dwyer and Kevin Brennan have tried dozens of jury trials and
have handled many insurance cases. They have tried insurance cases to
jury verdict, including long-term disability claims, accidental death and
dismemberment insurance, and life insurance cases involving the defense
of material misrepresentation. The firm also has experience involving
property insurance, insurance coverage disputes, and subrogation claims.
Individual and Small Business Litigation
The firm has represented individuals and small businesses in a variety of
business disputes and lawsuits, including the following:
- Partnership and limited liability company disputes and break-up of
a business
- Breach of contract
- Collection for services performed
- Disputes involving the sale of a business
- Commercial property disputes, including foreclosure
- Construction defect claims
- Business fraud
- Defamation (libel or slander)
- Disputes between a publisher and author
- Lawyer-client disputes about legal fees owed
- Administrative proceedings seeking to fire or terminate an
employee and
- Disputes involving cooperative and condominium boards and
tenants concerning apartments
The firm has also represented people and small businesses who have been
sued, but who did not have any or adequate insurance to protect
themselves. For example, the firm has defended doctors without
malpractice insurance, psychologists and psychiatrists accused of improper
conduct, drivers without motor vehicle liability insurance, small business
owners facing premises liability claims without liability insurance, and
uninsured apartment renters sued in subrogation by insurance companies.
The firm has helped clients obtain relief from default judgments unjustly
obtained and has defended clients against false claims that they were
negligent or that they committed intentional torts, including sexual abuse
and assault and battery.
Serious Personal Injury and Wrongful Death
The firm has handled serious personal injury and wrongful death cases.
The firm has represented both plaintiffs and defendants, handling the
following kinds of cases:
- Medical malpractice: birth injuries, brain damage from lack of
oxygen, failure to diagnose hepatitis or cancer, emergency room
errors, medication errors, and other medical negligence
- Motor vehicle accidents: car accidents, truck crashes, motorcycle
accidents, collisions, pedestrian accidents and taxi accidents
- Premises liability cases: slip and fall and trip and fall accidents,
dog bites, and assault or rape caused by failed security procedures
- Construction site accidents: scaffolding or ladder accidents,
electrocution, falls, and defective machinery or equipment
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