FAQ – Filing an ERISA Lawsuit | Pasco County Long Term Disability Lawyer

You can only file a lawsuit under ERISA after you have exhausted your administrative remedies. This is called “exhausation”. There is a joke among ERISA attorneys that it really means the “exhaustion of your client” and not exhausting all of your appeals.

You should not file a lawsuit unless you are represented. I will be frank with you. You are going to have a hard time finding an experienced ERISA/LTD attorney to take your case at this stage since you can not add anything to the record. Cases are won or are set up for a win in Federal court based on what is put in your record during the claims denial appeal process.

A Federal lawsuit starts with preparing a complaint and filing the summons and complaint in United States District Court. The filing fee is $350 and Nancy Cavey advances the filing costs.

The suit is served and in the defendant, who is the carrier or the self-funded ERISA plan, has 20 days to file an answer and any counterclaims.

The counterclaims can include a claim for the repayment of disability benefits for an overpayment. Disability plans have offset provisions that let the disability carrier reduce the amount of your disability benefits based on what you receive from Social Security, workers compensation or other sources.

Your lawyer will file the answer to any counterclaim.

Every United States District Court has its own rules about how the lawsuit will be handled. In the middle District of Florida, we are required to have a case management conference soon after the answer is filed so that we can sit down and agree on a schedule for discovery, mediation, the filing of motions, and trial.

The Florida District courts require that ERISA cases have a settlement conference known as mediation.

The insurance company attorney will send me a copy of the disability carriers file which is called the “administrative record” and I will check to see if it has the same things that were sent to me during the appeal process. Don’t be surprised if there are different things in the file the defense attorney sends me.

At our firm, Cavey and Barrett, we routinely schedule a designated representative deposition of the adjuster so that we can learn the basis of the denial and establish the necessary standard of review.

If we are unable to settle the case, the court requires us to prepare a Motion for Summary Judgment. A federal judge will decide your case based on what is in the record. There are no trials! You will not get the opportunity to testify in front of the judge or a jury. Your doctors won’t get the opportunity to explain your condition and how it prevents you from working.

The federal judge will issue an order ruling on your right to benefits or lights and your case back to the insurance company because your case is not “ripe” for review.

Either party can appeal the judge’s decision to the United States Circuit Court for the Federal Circuit in which the district is located. For example, appeals from the district courts of Alabama, Georgia, and Florida go to the 11th circuit in Atlanta, Georgia.

If you win, the court will order the insurance company to pay you back benefits that are due, and sometimes, attorneys fees and costs.

The decision to file a lawsuit is a difficult one and one that you should consult with an experienced long term/ERISA attorney about – and, preferably, during the appeal process and not when it’s time to file a lawsuit!

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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