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January 2010

Insurance Law Quarterly Newsletter

Welcome to Gordon & Rees's Insurance Law Quarterly Newsletter. On a quarterly basis we will provide important information about the latest legal developments affecting the ever-changing world of insurance law. Each issue focuses on one topic or area of insurance law through in-depth articles on current and complex issues, combined with practical advice. We will also keep you up-to-date on successful outcomes and some of the interesting cases that are being handled by our Insurance Group.

This quarter, we focus on the area of ERISA law. In Section II, Ronald Alberts and Lisa Garner review important developments in ERISA case law in the aftermath of the United States Supreme Court's decision in Metropolitan Life Ins. Co. v. Glenn. In Section III, we highlight recent client successes of Gordon & Rees's ERISA practice group. In Section IV, we provide an update of the latest News, Results, and Publications of Gordon & Rees's entire Insurance Group.

If you have any questions about this issue of the Insurance Law Quarterly Newsletter, please contact:

Ronald Alberts

Ronald Alberts, Partner
ERISA and Life, Health and Disability Insurance
Ph: (213) 576-5000


  1. About the ERISA Practice of Gordon & Rees

  2. Recent Developments in ERISA Case Law

  3. Recent ERISA Client Successes

  4. About Gordon & Rees's Insurance Practice Attorneys


Our attorneys have comprehensive knowledge of ERISA substantive law and extensive experience litigating ERISA claims in the federal trial and appellate courts. Our ERISA experience involves not only claims for various employee benefits, but also complex breach of fiduciary duty claims against retirement and pension plan administrators. As ERISA litigation continues to increase, we have a team of experienced attorneys with substantial experience in the planning of ERISA litigation strategy and advising clients in the assessment of a wide range of risks. Our experience includes litigating claims in Arizona, California, Colorado, Nevada, Oregon, Texas, Washington, and Wyoming. Learn more about the ERISA practice of Gordon & Rees

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Lisa Garner

Ronald Alberts

In the September 2009 edition of DRI Magazine For The Defense, the attorneys of Gordon & Rees published an article entitled A Year After Glenn-No Clear Path that discussed the impact of the United States Supreme Court decision in Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008) on ERISA claims, specifically how circuit courts are handling the relatively-new discovery issues and the ultimate decisions on the claims themselves. Lisa Garner and Ronald Alberts review recent noteworthy decisions handed down by several of the circuit courts in which Gordon & Rees litigates. Learn more about recent developments in ERISA case law

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Tad Devlin

Elizabeth Vanalek

Tad Devlin and Elizabeth Vanalek (San Francisco) successfully defended an employer in a breach of fiduciary duty case under ERISA. Plaintiff alleged that the employer failed to notify plaintiff of approval of her request for an increase in death benefits and failed to deduct higher premium payments for plaintiff's policy, resulting in lower-than-expected death benefits after plaintiff's husband passed away. After the Gordon & Rees team thwarted plaintiff's multiple attempts to save her defective lawsuit, the district court granted a motion to dismiss with prejudice in favor of Gordon & Rees's client. Read the complete case summary

Ron Alberts

Shannon Ross

Ronald Alberts (Los Angeles) and Shannon Ross (San Francisco) obtained a defense judgment in an ERISA denial of disability benefits case in federal court. The plaintiff went off work per the recommendation of his physician due to poorly controlled diabetes, stress and anxiety. On de novo review, the court upheld the insurer's denial of LTD benefits. Although plaintiff's primary treating physician opined that plaintiff was disabled from working, the court concluded that the doctor recommended disability prematurely, based largely on plaintiff's self reports, and in the absence of much objective data. The court also found persuasive the opinions of plaintiff's two treating specialists and two external reviewing physicians that plaintiff was capable of working. The court disagreed with plaintiff that the insurer should have given more weight to the Social Security Administration's disability determination, and the court denied plaintiff's request to take judicial notice of extra-record evidence. Read the complete case summary

Ronald Alberts

Lisa Garner

Ronald Alberts and Lisa Garner (Los Angeles) obtained a verdict in favor of our clients Aetna Life Insurance Company and Boeing, Inc. in an ERISA disability benefits case, which distinguished recent unfavorable Ninth Circuit case law. Letvinuck v. Aetna, et. al was initially tried in August of 2007, with the federal district court in California finding for the clients. Plaintiff appealed, and the Ninth Circuit remanded for a new trial, instructing the district court to consider certain issues in light of Saffon v. Wells Fargo & Co. Long Term Disability Plan and the Supreme Court decision of Metropolitan Life v. Glenn. In September of 2009, before the new trial, the Ninth Circuit issued its decision in Montour v. Hartford Life & Accident Insurance Co. which criticized the insurance company for relying on "paper reviews" by its medical reviewers and for failing to explain to the claimant its reasons for coming to a different conclusion about disability than the Social Security Administration. On December 15, 2009, the district court retried the case. On December 17, 2009, the district court issued a 23 page Findings of Fact and Conclusions of Law that addressed in detail all of the issues raised by the Ninth Circuit. More importantly, the district court articulated sound reasons for distinguishing the facts of this case from that of Glenn, Saffon and Montour along the lines of the arguments raised by Gordon & Rees. Plaintiff has filed another appeal to the Ninth Circuit. Read the complete case summary

Bob Braglone

Eric Jaegers

Bob Bragalone and Eric Jaegers (Dallas) obtained summary judgment in an ERISA long-term disability benefits matter (Patterson v. Prudential, No. H-08-CV-2127). On January 13, 2010, the Southern District of Texas (Houston Division) granted summary judgment in favor of Gordon & Rees's clients, The Prudential Insurance Company of America and AON Benefits Committee, after more than a year of litigation. Read the complete case summary

Ron Alberts

Shannon Victor

Ronald Alberts and Shannon Victor (Los Angeles) obtained a victory for client Prudential in a federal court trial involving a plaintiff's claim for accidental dismemberment benefits under ERISA. The plaintiff was as an employee at Disneyland when he accidentally fell and injured his knee and ended up undergoing an above-the-knee amputation. However, the plaintiff had an extensive history of leg and knee injuries pre-dating his fall, which substantially contributed to, if not compelled his decision to amputate. The court, applying a de novo standard of review, affirmed Prudential's decision to deny the plaintiff's claim for dismemberment benefits under the terms of Disney's employee group welfare benefit plan. Read the complete case summary

Franz Hardy

Franz Hardy (Denver) obtained a judgment for client, Prudential, in a matter involving the denial of long term disability benefits. The plaintiff, a long-time employee of a large beer manufacturer, asserted that his alcoholism was so severe he could not meet the "regular care" requirements under the applicable plan. He also asserted that Prudential's request that he attend daily Alcoholics Anonymous meetings was improper as AA is not medical treatment. The court found that daily attendance at AA meetings was "appropriate treatment and care" under the policy provisions of the plan and entered judgment in favor of Prudential. Read the complete case summary

Ronald Alberts

Leslie Crary

Ronald Alberts (Los Angeles) and Leslie Crary (San Francisco) obtained a dismissal following a demurrer to a complaint filed by a provider to recover amounts allegedly due from a patient's health insurer, and Gordon Rees's client, Aetna. Ron and Leslie successfully argued the complaint was barred by the application of the statute of limitations. The plaintiff provider, Enloe Medical Center has appealed, raising an issue as to the inception of the limitations period. Leslie is also a member of Gordon & Rees's Appellate Practice Group, and Gordon & Rees will be representing Aetna on the appeal. Read the complete case summary

Please click here to view all of our ERISA victories

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Over 45 lawyers at Gordon & Rees dedicate their practice to representing many of the largest domestic and foreign insurers doing business in the United States. Gordon & Rees's lawyers assist clients with advice, litigation, and training. Our experience spans from: coverage disputes under general liability, property, professional liability, and specialty lines of coverage; to ERISA, life and & health; to litigation involving the business of insurance (including sales practices, annuities, and other insurance products); to defense of "bad faith" claims; to appellate advocacy. We tackle the most difficult problems, and provide our clients with the tools to address any aspect of the smallest to largest claims to land on their desks. Click here to meet our lawyers.

Gordon & Rees's insurance lawyers understand the risks involved in most insurance disputes and in litigation in general. We are successful in negotiation, motion practice, and in trying cases before jury and judge. Click here to view our recent Results.

Our lawyers are also active speaking, writing, providing seminars, and blogging about insurance issues. Click here to view our recent Publications.

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Life, Health & Disability