Lessons From The Howard Case

Last year I had the opportunity to attend a gathering of many of the ERISA litigators in Florida, both plaintiff and defense. One of the hot topics at that conference was a case known as Howard v. Hartford Life & Accident Insurance Co. which was possibly going to be the vehicle for the Eleventh Circuit to clarify the rules of discovery in ERISA cases. That never really happened. Nonetheless, the district court recently decided the case on the merits in favor of Hartford. It is still an important read.

Like so many ERISA LTD cases, the plaintiff claimed fibromyalgia as a primary disabling condition. As often happens in these cases, the plaintiff was placed under video surveillance. Just as commonly, consulting doctors were retained who were shown portions of the video depicting, in the court’s opinion, the plaintiff doing far more than she claimed possible. The district court ultimately ordered summary judgment in Hartford’s favor. Plaintiffs and their attorneys have several lessons to learn from Howard…

• Video surveillance can kill an ERISA case. That is exactly what happened in Howard. Within the opinion there is a debate over the meaning of “objective medical evidence”. In the court’s opinion the best evidence was the video which showed the plaintiff doing far more than subjectively complained of.

• Plaintiff’s attorneys cannot simply count on a bare conflict of interest without more to show that the carrier’s conduct was arbitrary and capricious. Neither can one rely upon simply showing that the defendant’s employee received bonuses and company stock or were aware of case reserves.

• Counsel must strictly adhere to the technical page limitation, footnote and font rules. The judge’s considerable aggravation about plaintiff’s counsel’s violation of those rules did not help the plaintiff’s cause.

These are never easy cases and they are made only difficult, if not impossible to win, when damaging surveillance is involved. It is imperative to determine whether it exists and review it carefully before filing suit.