Mikula v. First National Supermarkets et al.
The claimant was represented by Steven Cousins, Esq., 2563 Main St., Stratford, CT 06497.
The respondent First National as a self-insured was represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The respondents First National and Travelers were represented by Suzanne Fetter, Esq., Sizemore Law Offices, 1 Civic Center Plaza, 3CC, Hartford, CT 06103.
The respondent Shaw’s Supermarkets was represented by Brian Prindle, Esq., 72 Bissell St., Manchester, CT 06040-5304.
This Petition for Review from the December 16, 1997 Finding and Award of the Commissioner acting for the Third District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondent Shaw’s Supermarkets has petitioned for review from the December 16, 1997 Finding and Award of the Commissioner acting for the Third District. It argues on appeal that the trier erred by finding that the claimant suffered a new injury while working for Shaw’s as opposed to a recurrence of a previous injury, and that he erred by concluding that the claimant was entitled to benefits under § 31-308(a). We affirm the trial commissioner’s decision.
The claimant first began working for the respondent First National as a grocery clerk in 1986. His job required much bending and lifting. In 1988, he suffered a back injury while stocking shelves, and felt intense pain. The accident kept him out of work for six months, and caused a 10% permanent partial impairment of his back according to Dr. Garver. The claimant eventually returned to work doing the same job. In January 1993, he suffered another back injury while stocking shelves, and was compensated for it pursuant to a voluntary agreement with Travelers. He was again injured in November 1993, although the claimant testified he remembered little about that injury, which was accepted by First National as a self-insured.
Dr. Garver noted in 1994 that the claimant’s permanent partial impairment level remained at 10%, with continuing low back pain. Dr. Robinson found that the claimant had advanced degenerative disc disease, and that he should not lift loads greater than 15-20 pounds. The claimant testified that after 1993, he was no longer required to stock shelves. He continued to work at First National until October 1996, when he was laid off after First National merged with another company and sold off the Orange store in which the claimant worked. Shaw’s, the purchaser of that store, hired the claimant in April 1997 to do work similar to that which he performed at First National, except that he was again required to stock shelves. On May 27, 1997, while removing merchandise from a pallet, he felt pain in his back and was sent home. A day later, the pain had worsened, and the claimant returned for treatment with Dr. Garver.
Dr. Garver told the claimant that he could do light work. The claimant testified that he looked for such work, but could not find any. He also was ruled ineligible for unemployment compensation because he was deemed to be disabled and unready to work. In an August 1997 report, Dr. Garver determined that the claimant had suffered an exacerbation of his pre-existing condition by virtue of the May 1997 lifting incident. He was of the opinion that the claimant was temporarily totally disabled.
The trial commissioner concluded that the claimant aggravated his pre-existing impairments as a result of the May 27, 1997 lifting incident and became partially disabled, whereupon he fruitlessly looked for light duty work. The commissioner ordered Shaw’s to pay the claimant six months of compensation for temporary partial disability, as well as six percent interest on compensation unpaid the claimant. Shaw’s has appealed that decision to this board.
The appellant first argues that the trier erred by finding that the claimant suffered an accidental injury while employed by Shaw’s. Whether an injury has occurred, and whether it is a relapse of a previous injury or a new injury, is a determination of fact. Where circumstances could arguably support different findings, the trial commissioner must decide based upon the evidence which finding is most appropriate. McBreairty v. D.B.D., Inc., 13 Conn. Workers’ Comp. Rev. Op. 259, 260, 1781 CRB-7-93-7 (April 18, 1995). This board will not retry the facts, nor will it review decisions that depend upon the weight of the evidence or the credibility of the witnesses. Id., 261, citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
Dr. Garver stated in a June 4, 1997 report that the claimant was “with pain in the low back with radiation down both legs. This has become much worse since he has been doing a lot of lifting and bending at work.” Claimant’s Exhibit A. As the appellant points out, Dr. Garver also stated on August 18, 1997 that the May 1997 incident apparently occurred “when the patient’s job activities were changed and he was returned to a stocking type of activity. This caused development of back pain and essentially was an exacerbation of his preexisting condition. This did not represent a specific new pathologic injury to the patient, but did cause a specific flair-up [sic] of his preexisting condition.” The appellant characterizes this as not an injury, but a “temporary aggravation based on performing duties beyond the claimant’s restrictions.” Brief, p. 8.
The lacuna in this argument, though, is the recognition of the fact that the claimant would not have suffered this aggravation had he not been required to stock shelves at Shaw’s. The claimant had been able to work within restrictions for two years following his last injury in November 1994. When Shaw’s hired him in April 1997, it assigned him duties outside those restrictions, and the claimant injured his back again. We believe that the performance of duties beyond one’s work restrictions is the sort of intervening circumstance that may reasonably distinguish a simple relapse from a new injury within the meaning of the Workers’ Compensation Act. The fact that Dr. Garver did not identify a new pathologic injury, i.e., a physical change in the structure of the claimant’s back, did not preclude this incident from being an injury under the Act. See, e.g., Pothier v. Stanley-Bostich, 3411 CRB-3-96-8 (Jan. 21, 1998) (playful poke in sides by co-worker that aggravated pre-existing condition caused claimant tremendous pain, and constituted an injury). Thus, we find no error in the trier’s conclusion that the claimant suffered a compensable injury while working at Shaw’s on May 27, 1997.
The other argument raised by the appellant is that there was insufficient evidence for the trier to find that the claimant was entitled to § 31-308(a) benefits based upon temporary partial incapacity. The only evidence offered regarding the claimant’s inability to find suitable light duty employment was the testimony of the claimant himself, who stated that he had looked for work after being injured at Shaw’s. Transcript, pp. 38-39, 54-56. He also stated that he had tried to obtain a light duty position at Shaw’s, but it had fallen through for some reason. Id., 54. The appellant argues that this evidence is not substantial enough to establish that work was unavailable under § 31-308(a). “Based on the mere fact that the claimant said he looked for work, the Commissioner can not conclude that the claimant was unable to secure appropriate work.” Brief, p. 12.
Our Appellate Court has stated that there is no work search requirement in § 31-308(a). Shimko v. Ferro, 40 Conn. App. 409, 414 (1996). A claimant may demonstrate the unavailability of employment by other evidentiary means as well. Id. Although a mere representation by a claimant that he has looked for work is hardly overwhelming evidence, it is not beyond the discretion of the trier to rely on such a statement if, in conjunction with the other evidence in the case, it appears that there was no suitable light duty work available for the claimant. Here, the respondents did not contradict the claimant’s testimony that he looked for work. We must presume from the findings that the trier found this testimony credible. As we may not disturb a trial commissioner’s evaluation of credibility, we must affirm the trier’s finding on this matter also.


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OVERSTREET v. NORTH SHORE CORP.
[318 U.S. 125, 126] Mr. Lucien H. Boggs, of Jacksonville, Fla., for petitioners.
Mr. Francis M. Shea, Asst. Atty. Gen., for Administration of Wage & Hour Division, U.S. Department of Labor, as amicus curiae, by special leave of Court.
Mr. Roswell P. C. May, of New York City, for respondent.
Petitioners, together with others not parties to this petition, brought this action against respondent and a subsidiary under 16(b) of the Act for the recovery of unpaid minimum wages, overtime compensation, and liquidated damages. Respondent moved to dismiss as to all the plaintiffs, and the motion as to petitioners was [318 U.S. 125, 127] granted by the district court, leave to amend being given to the other complainants who are not before us. D.C., 43 F.Supp. 445. Petitioners appealed to the Circuit Court of Appeals which affirmed the order of dismissal. 5 Cir., 128 F.2d 450. The important question raised as to the coverage of the Act caused us to grant certiorari. 317 U.S. 606 , 63 S.Ct. 56, 87 L.Ed. --.
Respondent owns and operates a toll road and a drawbridge which is part of the road. The toll road connects United States Highway No. 17, an interstate arterial highway, with Fort George Island, which lies off the northern coast of Florida, being separated from the mainland by the Intercoastal Waterway. The toll road crosses the Waterway at Sisters' Creek by means of the drawbridge which must be raised frequently to permit the passage of boats engaged in interstate commerce. The toll road constitutes an integral part of the highway system of the United States and provides the only means of land communication between Fort George Island and the Florida mainland. It is used extensively by persons and vehicles traveling between the island and points outside Florida in interstate commerce. Mail to and from other states as well as goods produced outside Florida and consigned to merchants on the island are transported over the toll road. Each of the petitioners was employed by respondent in connection with the operation of the toll road and drawbridge. Overstreet operated the drawbridge raising it for the passage of boats through Sisters' Creek and lowering it for the resumption of traffic over the road; Brazle was engaged in maintenance and repair work on the road and the bridge; and Garvin sold and collected toll tickets from 'vehicles using said toll road in interstate commerce'. Petitioners received neither the [318 U.S. 125, 128] minimum wages nor the overtime compensation prescribed by 6 and 7 of the Act.
We think these allegations bring petitioners within the coverage of the Act and entitle them to recover if proved.
Our starting point is respondent's concession that no question of constitutional power is involved, but only the ascertainment of Congressional intent, that is, did Congress mean to include employees such as petitioners within the Act. In arriving at that intent it must be remembered that Congress did not choose to exert its power to the full by regulating industries and occupations which affect interstate commerce. See A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 522 , 523 S., 62 S.Ct. 1116, 1119, 1120; Walling v. Jacksonville Paper Co., 317 U.S. 564 , 63 S.Ct. 332, 335, 87 L.Ed. --, decided January 18, 1943. Respondent contends that petitioners are in this category, that their activities are local and at most only affect commerce. But the policy of Congressional abnegation with respect to occupations affecting commerce is no reason for narrowly circumscribing the phrase 'engaged in commerce'. We said in the Jacksonville Paper Co. case, supra, 'It is clear that the purpose of the Act was to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce'. And in determining what constitutes 'commerce' or 'engaged in commerce' we are guided by practical considerations. Jacksonville Paper Co. case, supra, and see also Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556, 558 , 36 S.Ct. 188, 189, L.R.A.1916C, 797, dealing with what will shortly be pointed out as a similar question in the coverage of the Federal Employers' Liability Act.
We think that practical test should govern here. 3 Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate [318 U.S. 125, 130] commerce. Cf. Convington & C. Bridge Co. v. Kentucky, 154 U.S. 204, 218 , 14 S.Ct. 1087, 1092. Those persons who are engaged in maintaining and repairing such facilities should be considered as 'engaged in commerce' even as was the bolt carrying employee in the Pedersen case, supra, because without their services these instrumentalities would not be open to the passage of goods and persons across state lines. And the same is true of operational employees whose work is just as closely related to the interstate movement. Of course, all this is subject to the qualification that the Act does not consider as an employer the United States or any State or political subdivision of a State, and hence does not apply to their employees. 3(d).
The allegations of petitioners' complaint satisfy this practical test. The road and bridge allegedly afford passage to an extensive movement of goods and persons between Florida and other states, and moreover the drawbridge presents an obstacle to interstate traffic by water over the Intercoastal Waterway if not properly operated. The operational and maintenance activities of petitioners are vital to the proper functioning of these structures as instrumentalities of interstate commerce. The services of Overstreet are necessary to prevent the drawbridge from being either a barrier to interstate navigation or else a gap in the vehicular way. Without the services of Brazle the facilities would fall into disrepair, and both operation and maintenance would seem to depend upon Garvin's collecting the toll from users of the structures. The work of each petitioner in providing a means of interstate transportation and communication is so intimately related to interstate commerce 'as to be in practice and in legal contemplation a part of it' (Pedersen's case, supra) and justifies regarding petitioners as 'engaged in commerce' within the meaning of the Fair Labor Standards Act. [318 U.S. 125, 131] Respondent resists the application of the test of the Pedersen and related cases, cited above, pointing out that there may be pitfalls in translating implications from the special aspects of one statute to another (see, Federal Trade Comm. v. Bunte Bros., 312 U.S. 349, 353 , 61 S. Ct. 580, 582), and claiming that significant differences exist between the Federal Employers' Liability Act and the Fair Labor Standards Act. The outstanding difference asserted is that a railroad company is actually engaged in commerce as a carrier of goods and persons, and since it is difficult to consider the business other than as a whole and to separate maintenance from transportation employees, there is good reason for treating maintenance employees as engaged in commerce. (Compare the Pedersen case, supra, 229 U.S. at pages 151, 152, 33 S.Ct. at pages 649, 650, Ann.Cas.1914C, 153.) As regards itself respondent says that it is not engaged in commerce, but only in providing facilities which those carrying on commerce may use, and therefore there is no sound basis for treating its maintenance and operational employees as engaged in commerce-rather they only affect commerce. Reliance is placed upon Henderson Bridge Company v. Kentucky, 166 U.S. 150 , 17 S.Ct. 532, and Detroit International Bridge Co. v. Corporation Tax Appeal Board, 294 U.S. 83 , 55 S.Ct. 332, where in sustaining the power of the States of Kentucky and Michigan, respectively, to tax the franchise of domestic corporations operating bridges between Kentucky and Indiana and between Michigan and Canada, it was said that the respective bridge companies were not engaged in interstate or foreign commerce. We do not regard these objections as well taken.
The Henderson and Detroit bridge cases, supra, do not affect our conclusion. We have pointed out that decisions such as those, dealing with various assertions of state or federal power in the commerce field, are not particularly helpful in determining the scope of the Act. A. B. Kirschbaum Co. v. Walling, supra, 316 U.S. at pages 520, 521, 62 S.Ct. at pages 1118, 1119; Walling v. Jacksonville Paper Co., supra. But even if we accept the premise of the Bridge cases and regard respondent as not engaged in commerce, the result is not changed. The nature of the employer's business is not determinative, because as we have repeatedly said, the application of the Act depends upon the character of the employees' activities. A. B. Kirschbaum Co. v. Walling, supra, 316 U.S. at page 524, 62 S.Ct. at page 1120; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88 , 63 S.Ct. 125, 87 L.Ed. --, decided November 9, 1942; Walling v. Jacksonville Paper Co., supra. The fact that respondent may be subject to state taxation does not imply that it is free from federal regulation or that its road and drawbridge are not instrumentalities of interstate commerce. Petitioners, who are engaged in operating and maintaining respondent's facilities so that there may be interstate passage of persons and goods over them, are so closely related to that interstate movement as a practical matter that we think they must be regarded, under the allegations of their complaint, as 'engaged in commerce' within the meaning of 6 and 7 of the Act. [318 U.S. 125, 133] We conclude that petitioners' complaint was erroneously dismissed. Accordingly, the judgment below is reversed and the cause remanded to the district court for further proceedings in conformity with this opinion.
Mr. Justice ROBERTS and Mr. Justice JACKSON dissent.
[ Footnote 1 ] Compare A. B. Kirschbaum Co. v. Walling, 316 U.S. 517 , 62 S.Ct. 1116; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88 , 63 S.Ct. 125, 87 L.Ed. --, decided November 9, 1942; Walling v. Jacksonville Paper Co., 317 U.S. 564 , 63 S.Ct. 332, 87 L.Ed. --, decided January 18, 1943; Higgins v. Carr Brothers, 317 U.S. 572 , 63 S.Ct. 337, 87 L.Ed. --, decided January 18, 1943.
[ Footnote 3 ] This has been the administrative interpretation. See Interpretative Bulletin No. 5 of the Wage and Hour Division of the Department of Labor, issued in November, 1939, at p. 7. This is set forth in the 1941 Edition of the Wage and Hour Manual at p. 34. See also p. 54.
Compare the dissenting opinion in Pedersen v. J. F. Fitzgerald Construction Co., 262 App.Div. 665, 668, 30 N.Y.S.2d 989, affirmed without opinion, 288 N.Y. 687, 43 N.E.2d 83.
[ Footnote 4 ] See 83 Cong.Rec., 75th Cong., 3d Sess., Pt. 7, p. 7434, and Pt. 8, pp. 9168-71. See also Joint Hearings before the Senate Committee on Education and Labor and the House Committee on Labor on S. 2475 and H.R. 7200, 75th Cong., 1st Sess. (1937), Pt. 1, pp. 42, 43.

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In Nason v. Shafranski, 35 Fla. L. Weekly D943 (Fla. 4th DCA, April 28, 2010) the Fourth District was faced with a case where the application of the Stuart v. Hertz doctrine was necessary in that case. In this case a jury verdict which was deemed by the plaintiff to be inadequate was appealed alleging error by the trial court in allowing a defendant’s medical expert to testify that the surgeries performed by plaintiff’s treating doctor were unnecessary and worsened his condition and refusing to give a jury instruction outlining the Stuart v. Hertz doctrine. Defendant’s medical expert testified that plaintiff merely suffered a sprain in the automobile accident that should have been treated with medication and that surgery was not appropriate. In fact, the plaintiff received a discogram, a nucleoplasty, the removal of two herniated discs and the performance of two fusions. Plaintiff’s medical bills alone totaled over $300,000.00 and he was facing an operation for a two level disc replacement. Defendant argued to the jury that the surgeries performed by the treating physician had made the plaintiff worse, that he didn’t need the surgery to begin with and that no future surgery was indicated.
The Court cited Emory v. Florida Freedom Newspapers, 687 So. 2d 846 (Fla. 4th DCA 1997) and Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994) both of which support the giving of the requested instruction under these circumstances. The Court rejected defendants’ arguments that they never claimed the treating physician was negligent and were merely questioning the reasonableness of the medical charges pointing out that the same arguments had been rejected in Emory and Dungan, supra. The Court cited with approval Dungan, supra, to the effect that reasonableness and necessity as it relates to medical treatment can be established by lay testimony and thus involves a question of necessity from the standpoint of the injured party rather than a medical expert. Thus a defense that attacks the reasonableness of medical treatment on a medical basis is clearly violative of the Stuart v. Hertz doctrine since such a proposition flies in the face of the law enunciated in Stuart v. Hertz that even if medical treatment was ill advised, it still is the responsibility of the initial tortfeasor.
There is no standard jury instruction on this subject and the concurring opinion of Judge Farmer recommends a plain English draft of an appropriate instruction until one is approved by the Supreme Court.
A tortfeasor is responsible for injuries directly caused by negligence if the plaintiff reasonably seeks medical care and that medical care results in an exacerbation rather than alleviation of the plaintiff’s injuries. The law of Florida is that the initial tortfeasor remains responsible for the entire injury including any such aggravation.

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The chemical composition of the three essential oils obtained by steam distillation of the mastic gum, leaves and twigs of Pistacia lentiscus var. chia, was studied by GC/MS. Sixty nine constituents were identified from the oils. alpha-Pinene, myrcene, trans-caryophyllene and germacrene D were found to be the major components. The in vitro antimicrobial activity of the three essential oils and of the resin (total, acid and neutral fraction) against six bacteria and three fungi is reported.
The addition of mastic gum in broth culture inoculated with Staphylococcus aureus, Lactobacillus plantarum, Pseudomonas fragi and Salmonella enteritidis inhibited the growth of these organisms as monitored with the Malthus Instrument (in microsiemens). The rate of inhibition was greater on Gram positive bacteria than that observed on Gram negative bacteria. In most cases the size of inoculum and the concentration of mastic gum affected the growth/survival of the organisms. The addition of EDTA in coliform broth increased the inhibitory activity of mastic gum against Salmonella enteritidis, but did not affect significantly the inhibition of this organism in Model Food System (skim milk) at 37°C.
Iauk L, Ragusa S, Rapisarda A, Franco S, Nicolosi VM.
Studies were done to determine the effect of mastic resin and its essential oil, alone and in conjunction with ethanol, on the growth of proteolytic strains of Clostridium botulinum in media, and on neurotoxin production in challenge studies with English-style crumpets. Preliminary studies, using a spot-on-the-lawn method, indicated that high levels of mastic resin in ethanol (~8% w/w) were required for complete inhibition of all strains of C. botulinum tested, but mastic resin in ethanol had a greater anti-botulinal effect than ethanol alone. However, only low levels of mastic oil (~0.3% v/v) were required for inhibition of proteolytic strains of C. botulinum. Both studies showed a strain specific inhibition, with C. botulinum type A strains being more sensitive to mastic resin and its essential oil than type B strains. However, mastic resin in ethanol proved to be more effective when used as a vapor phase inhibitor applied to cotton pads and placed inside inoculated plates than when added directly to media. While both mastic resin and its essential oil inhibited the growth of proteolytic strains of C. botulinum in vitro, they failed to inhibit neurotoxin production in challenge studies with C. botulinum in English-style crumpets.
5. Epitheorese Klinikes Farmakologias kai Farmakokinetikes, International Edition. 2001 16: 199-201.
The Antibacterial and antifungal Action of the Chios Mastic Essential Oil.
E.E Protopapa, V Spiliotis, V. Kefala, A. Triantafyllou, J Tsaknis.
Technological Educational Institution, Athens & Laboratory og Biologikal Chemistry, University of Athens Medical School.
The effect of Chios mastic essential oil on the growth of nine bacteria (m. Luteus, S. epidermis, B. subtilis, S. aureus, E. Coli, S. Mutans, V. alcalencens, V. parulla and l. casei) and three fungi ( C. albicans, A. maelundi and A. odontolyticus) was tested in cultures in a minimal concentration inhibition assay. Bacteriostatic effects were observed on M. Luteus, S. epidermis, B. Subtilis, S. Aureus, E. Coli, and V. alcalencens and antifungal effects on C. albicans and A. maelundi. The bacteriostatic and antifungal effects of the mastic oil on A. maelundi and V. alcalencens, respectively, microorganisms which are present in the mouth flora, could be correlated with the observed effects of mastic chewing gum on reducing dental plaques and mouth infections.
6. Epitheorese Klinikes Farmakologias kai Farmakokinetikes, International Edition. 2001 16: 203-205.
The Antiphlogistic Action of the Chios Mastic Essential Oil: Treatment of Skin Irritations Resulting from Hair Epilation and peeling with lotions Containing Mastic Essential Oil.
E.E Protopapa, A. Heliou, A. Tsigonia, V. Kefala, A. Triantafyllou, J Tsaknis.
Technological Educational Institution, Athens, Technological Educational Institution, of Thessaloniki & Laboratory of Biologikal Chemistry, University of Athens Medical School.
The antiphlogistic effect of mastic essential oil was tested in skin subjected to epilation either by thermolysis or enzymes in different skin region and peeling. Creams containing mastic essential oil significantly reduced the time period necessary to relieve the irritatiom resulting from epilation or peeling, compared to skin regions treated with placebo cream devoid of the mastic oil.
Mastic gum is a viscous light-green liquid obtained from the bark of Pistacia lentiscus var. chia. which belongs to the Anacardiaceae family. The gum has been fractionated to investigate the antimicrobial activity of the whole gum and its fractions against various strains of Helicobacter pylori. The polymeric gum fraction was separated from the essential oil and the resin (trunk exudates without essential oil) to assess and compare the anti-H. pylori activity of the polymer fraction against lower molecular weight fractions, the gum itself and masticated gum. The polymer fraction was also oxidized and assessed for antimicrobial activity.
Keywords: Mastic Gum; Helicobacter pylori; Pistachia lentiscus.

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T. R. Halvorson is Deputy County Attorney in Sidney, Montana, President of Synoptic Text Information Services, Inc., an online industry research, consulting, database creation, and computer programming firm, webmaster of LexNotes , and author of Law of the Super Searchers: the Online Secrets of Top Legal Researchers .
For years Bar Associations have sought special deals and arrangements with vendors to provide extra benefits for their members. These bargains have often included reduced car rental fees, insurance specials and special travel rates. Some Bar groups have negotiated membership rates for computerized legal research as well. While in the past these group contracts for online services have been with recognized providers — Westlaw®, LexisNexis™, LoisLaw™ — there is a new entrant making itself felt, the Ohio State Bar Association’s Casemaker™ Consortium.
In this article Margi will set forth the origin and structure of the consortium and T. R. will give you a guided tour of the system in use with an evaluation of its quality factors. In the concluding section, we put our heads together to assess the service’s value-to-cost ratio.
The Ohio State Bar Association has a history of innovative and entrepreneurial legal research technology products. Back in 1965 under the leadership of James Preston, OSBA President, and William Harrington, Research Counsel, the Ohio Bar developed the Ohio Bar Automated Research Project. Entering into a commercial agreement with the Data Corporation of Dayton to have Ohio statutes and case law entered into a computerized database, OBAR was the first glimpse of present day Computer Assisted Legal Research. By 1969 the Mead Corporation purchased the Data Corporation and in 1972 was renamed LEXIS. (Michael A. Geist, “Where Can You Go Today“, 11 Harv. J. L. & Tech. 141 (Fall, 1997).) Now the Ohio State Bar Association has paired up with another technology company and released Casemaker ™, an Internet legal research library marketed to Bar Associations.
This new partner, Lawriter, is no novice. Lawriter’s previous partnership, with Ohio’s own Anderson Publishing, produced Ohio law on CD Rom from 1983 until 1995. Their partnership agreement vested all rights to the electronic products in Lawriter, so when Anderson developed a new relationship with LexisNexis, Lawriter retained a database of Ohio law. The only restriction to taking this database to the marketplace was a covenant prohibiting future partnerships with publishers. The innovative owner of Lawriter, Joseph Shea, saw an opportunity to partner with a non-publisher organization with a special interest in Ohio law-the Ohio State Bar Association.
In 1995 the format of Casemaker™ was still the CD Rom, but by 1998 the Internet was clearly going to be the future for research of all types. According to Lawriter’s owner, Joe Shea, he had no interest in amassing debt or going public to move into the .com environment, so the Ohio State Bar Association put up the money to make the move to a Web platform. The CD Rom format is still available for those attorneys and firms for whom the Internet is not yet appealing.
So what is the business entity that Bar Associations are consorting with? Joe Shea describes Lawriter, L.L.C. as a “low-profit” limited liability corporation wherein the Ohio State Bar Association holds a minority interest and Shea’s corporation, Lawriter, is the other member. When a State Bar Association joins the Consortium, that Association has no ownership interest in the L.L.C. or its products. However, Mr. Shea described protections offered to Consortium members in the event of changes to the business. Should Lawriter, L.L.C. fail, the Bar Associations would be given their state library database which they could maintain or use to their benefit. Should Lawriter, L.L.C. decide to sell their online library (which Mr. Shea assures us is not his intention), each Bar Association would receive a portion of the sale price based on a formula described in their contracts. Joe Shea credits an attorney with previous experience with LexisNexis for devising Consortium contracts with “fair” clauses that cover such contingencies. Illustrative of the low-profit, fair dealing contract, Mr. Shea says is the fact that Bar Associations are guaranteed the same price for 5 years when they join the Consortium. Obviously, if they request additions to their libraries within that time their may be an increase in costs, but Shea also indicates that enhancements made to the system, like the citation searching described later, will be provided to current Consortium members free of charge.
Lawriter, L.L.C. is not a huge operation. “As many as 50 employees” work on the creation and updating of state libraries. Mr. Shea explained that the individual Bar Associations determine not only what will be included in their state library, but also the updating schedule. (These decisions impact cost. See the Value-to-Cost Ratio section following.) The average lead time needed to get a state library up is nine months, so several associations who have signed contracts are now waiting for their libraries to be created.
Since Casemaker™ is marketed only to Bar Associations, only members of these associations will have access. Who is a member eligible for this benefit is left up to the individual associations. Many Bar Associations have membership opportunities for law librarians and paralegals, but access for those of us who are not licensed attorneys may need to be addressed with State Bar groups. Joseph Shea assures us that Bar Associations already in the Consortium looked to law librarians when faced with the task of determining what to include in their state library databases.
As of this writing, the Casemaker ™ Consortium includes the following Bar Associations: Connecticut Bar Association, Idaho State Bar and Idaho Law Foundation, Inc., Indiana State Bar Association, Massachusetts Bar Association, Nebraska State Bar Association, New Hampshire Bar Association, North Carolina Bar Association, Ohio State Bar Association, Rhode Island State Bar, and Vermont Bar Association. Two more bar associations are reviewing contracts to join the consortium. The Michigan Bar Association is not currently a member of the Consortium, although it is considering membership. Michigan materials, however, are already part of the Casemaker™libraries. Joseph Shea explained that is because Ohio attorneys requested Michigan materials be part of their library. Since Bar Associations choose the materials for their libraries, there are jurisdictional considerations that may impact the materials included.
We find no single place – and Lawriter tells us there is no single place – where Casemaker™ documents its database contents nor where it keeps database information up to date. The documentation of Casemaker’s content is scattered across the web. This is to be expected since Casemaker™ does not market to end users but is a consortium of bar associations. Bar associations specify in contract negotiations when joining the consortium what content they want. They know what their contract calls for, and the bar associations in turn inform their members what is provided.
The contents of five of the state libraries and the federal library are documented at Casemaker’s trial web site. The entry into that documentation is a Library Contents page. Two clicks away from that page are pages for the federal, Connecticut, Michigan, Nebraska, North Carolina, and Ohio libraries.
The coverage of the North Carolina library and partial information on the scope of the databases in that library are listed at the North Carolina Bar Association site. The coverage, scope, and timeliness of the Connecticut library are documented in the first pages of the CBA Casemaker user guide. The Indiana library is slated to be available on March 1, 2003. The Idaho library is slated to be available on March 31, 2003.
Even in combination, these sources of published information are woefully incomplete, vague, and out of date. We provide what we can find about the federal library and, as an illustration of the contents of the state libraries, what we can find about the North Carolina library. Otherwise we refer you to the sources of information hyperlinked above.
According to the trial web site, scope in the federal databases begins in the following years: U.S. Supreme Court, 1935, 1st, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, and 11th Circuits, partial 1995; 2nd Circuit, 1989; and 6th Circuit 1990 (note the lack of stated coverage of the D.C. and Federal Circuits); and U.S. Code, 2001 version. The federal coverage page includes this note: ” Circuit court cases were made available by the courts to us in the year of the decision. Case coverage varies from provider to provider. Not every case is on this or any other service. We recommend searching more than one service to obtain a ‘close as possible’ comprehensive search result list.” There are differences between this description and, for example, what the North Carolina Bar Association and the Connecticut Bar Association web sites say. For example, the North Carolina site says the federal library includes “all circuits” and both the North Carolina and Connecticut sites say federal district court opinions for the federal districts within those states are included. In Connecticut, those opinions begin with volume 705 of the Federal Supplement, Second Series, and in North Carolina they begin with 1995. You’re stuck asking participating bar associations or Lawriter what the coverage, scope, and timeliness are for whichever materials may be indispensable or desirable in your setting.
City Codes for Charlotte, Raleigh & Durham – Assuming no copyright restriction.
For each of the federal case law databases, timeliness is through “previous month’s releases.” Lawriter tells us that some circuits are regularly more timely than others and the description of timeliness being through the “previous month’s releases” is the worst case for any circuit. The timeliness for a given circuit is specified by contract with the respective bar association that wanted coverage of the circuit’s cases.
All case law: Case law, including Conn., Conn. App., Conn. Supp., Conn. L. Rptr. and F.Supp. opinions are updated weekly from the state’s web site. Current week’s releases will be available on Mondays.
General Statutes and State Regulations: Updated annually with current version provided by the state.
Session Laws: Enacted session laws are added to the General Statutes database monthly as they are released.
All State Agencies’ Decisions: Agency decisions; including Attorney General, Worker’s Compensation Commission, Freedom of Information Commission, and the CBA’s Ethics Opinions are updated monthly as they become available.
CBA Publications: The Connecticut Lawyer and Connecticut Bar Journal volumes will be available one week from publication.
Casemaker™ gets its newer data from official sources, such as the courts themselves. The back files of historical cases come from conversion to digital data from official reporters where they exist and from West’s reporters where official reporters do not exist. Lawriter has a written agreement with West concerning digitization of data from West’s reporters.
Casemaker™ offers a trial web site. There are a few more steps to signing up for the free trial account than is usual elsewhere on the web. The forms require some information about the trial subscriber. Activation is more or less immediate. An email confirmation arrives promptly. The duration of the trial account is generous, 180 days.
Casemaker™ also offers trial accounts through other sites, for example, a 45-day free trial through the North Carolina Bar Association site. (Members of the North Carolina Bar Association receive access as a free benefit of membership. The free trial is for nonmembers.) We hoped to use this to compare the “real” version of the service to the trial web site. Logging in on the trial account at the North Carolina Bar Association site leads one right back to the library selection page at the trial web site, however. This was disappointing because the user manual for NC Casemaker describes and illustrates features and functions that are different from the trial web site. We won’t be able to show you the “real” version of some of the interface elements. Our illustrations are captured from the trial web site.
On the trial site, one chooses the federal library or one of the state libraries. That brings up a page where one chooses a database and whether to search or browse it. In the illustration below, notice the Search and Browse command buttons.
Casemaker™ offers two search modes, Basic and Advanced. The Basic search mode has a very simple interface with only three elements: a drop down list box to choose which group of cases to search (by reporter), a text box for entry of a query statement, and a search command button. The query statement may be either Boolean or natural language.
The advanced mode provides additional interface elements to let the searcher perform a citation search, a docket number search, apply date restrictions, expand word forms that qualify as matches, specify proximity, and chose between two sort orders (relevance and ascending date). The NC Casemaker user manual indicates that the subscriber version of the service also offers field or segment searching on syllabus, court, attorney, and judges (distinguishing between author of the majority or plurality opinion and the authors of concurring or dissenting opinions).
The service provides a navigation bar at the top of the page. The commands available and which ones are active vary according to whether one is entering a search query, viewing a hit list, or viewing a hit document.
The NCCasemaker Web Library Demonstration Guide and Manual says the first navigation bar appears “once you perform a successful search,” but that is not how the trial web site behaves. The following, first navigation bar appears as soon as a searcher arrives at the search screen.
The Casemaker Home command brings a searcher back to the library selection screen where one chooses either the federal library or one of the state libraries. The Library Contents command is context sensitive so that, for example, if a searcher is in the North Carolina Library, it brings her to the database selection screen for the North Carolina library. The Help command displays online help in a separate, popup window. The Revise Search and Back to Results commands are grayed because they are inactive. Oddly, the New Search command button is active already despite the fact that no search has yet been performed. Clicking it loops back to where one already is.
When a searcher performs a search and is viewing the hit list, the system displays the same navigation bar and activates the Print Results and Revise Search command buttons, as illustrated.
The Print Results command streamlines the page for printing, but does not itself send the page to the printer. The command removes the navigation bar and other interface elements that are not necessary in a printout. Once the print version of the page appears, a searcher must use her browser’s print command to send the page to the printer. The number of hits displayed in the hit list defaults to ten. We find no way to change this number. A Results Pages footer lets a searcher cycle through the hit list pages that display ten hits per page or jump to a particular hit list page, e.g., page 3 containing hits 21 through 30. This footer is included both on the regular version and on the print version of the hit list pages. The footer is context sensitive so that, when used on the print version, the link calls the print version of the next hit list page.
The Revise Search command recalls the search screen with the last query statement intact so that it need only be edited. The command also remembers whether the last search was done in Basic mode or Advanced mode and recalls the search screen in the same mode. Should one desire to switch modes, that can be done by clicking on the opposite mode tab of the search screen. When the mode of the search screen changes, the last query statement still is intact so that it need only be edited.
When displaying a document selected from the hit list, the system changes the buttons on the navigation bar. A Print Document button replaces the Print Results button. The system activates the Back to Results button. It adds Next Result and Previous Result command buttons. It adds a Browse Mode/Search Mode toggle switch button. It adds an indicator of location within the hit sequence that tells which of how many hit documents is displayed, e.g., Result: 2 of 57.
The Print Document command removes all online interface elements and generates a clean copy of the document. Highlighting of query terms is removed. The Back to Results command recalls the hit list. The Next Result and Previous Result commands let a searcher sequence through the hit documents.
The Browse Mode/Search Mode toggle button allows a searcher to switch between search mode and browse mode. In browse mode, a searcher can sequence through the documents in a book rather than through the documents in a hit list. To illustrate, assume we have searched a case law database in the North Carolina library, we have searched on the phrase “easement by prescription,” and we are viewing the sixth of 57 hits. The document is Perry v. Williams (1987), 84 N.C. App. 527. The next, seventh document in the hit list is Concerned Citizens of Brunswick v. North Carolina (1991), 329 N.C. 37. But if, before clicking the Next Result button, we first switch to browse mode, the navigation bar changes. The next and previous buttons change from Next Result to Next Document and from Previous Result to Previous Document. The Next Document command retrieves Star Automobile Co. v. Saab-Scania of America, Inc. (1987), 84 N.C. App. 531, which is not in the hit list and has nothing to do with easements or prescription. Perry v. Williams, the sixth case in the hit list, begins on page 527 and ends on page 531, and Star Automobile begins on page 531. Star Automobile is simply the next case in the reporter.
When in browse mode, the system also makes other changes in the navigation bar.
The command buttons that relate to searching disappear. A Back to Documents List button appears. The function of this command is analogous to the Back to Results command, but because of being in browse mode, instead of recalling the hit list, it calls a list of documents in the reporter.
The navigation interface is graphically pleasing, always smartly context sensitive about which commands really are active and which ones are not, always provides clarity about one’s sense-of-place in the search and retrieval process, and command elements always do what one intuitively expects without having to read the manual. These aspects of the system rate high marks for ease of use, even if the query syntax does not.
Casemaker™ supports the Boolean AND, OR, and NOT operators, phrase searching, truncation, and proximity.
The query processor only supports representation of operators as shown in the table above and does not support the straightforward use of “and” for AND, “or” for OR, and “not” for NOT.
Casemaker™ supports proximity, but not in command mode and not to user specified parameters. One must be in Advanced mode and select from options in a drop down list box. The options are terms within the same document, within 1000 characters, within 500 characters, within sentence, or within word. Bar associations can negotiate to provide different or additional proximity parameters, e.g., 100 characters.
The representation of the Boolean operators is not standard, and this can be a pitfall for searchers experienced on systems that implement Boolean operators in standard, algebraic syntax. The standard Boolean expression assault and weapon expresses two operands (the terms “assault’ and “weapon”) and it expresses an operator (“and”). On Casemaker™, the query expression becomes assault weapon . It looks like a phrase, and the phrase can mean something, as “assault weapon” does. The phrase “assault weapon” does not mean the same thing as “assault AND weapon”. This could trip searchers experienced on Lexis where phrases are entered in a straightforward manner.
Casemaker™ supports equivalencies by a thesaurus expansion operator, the tilde immediately preceding a word. The expression ~wine will hit on wine and related terms like beer and alcohol.
When a search succeeds in returning results, Casemaker™ displays the hit list. The hit list numbers the hits and for each hit it displays the citation, the date of decision, the relevancy score, the name of the case, and the first occurrence of a query term with some context surrounding it.
In Advanced mode, a searcher can specify the sort order of the hit list. There are two choices, relevance and ascending date order. In Basic mode, the hit list is sorted by relevance.
The appearance of documents is good. The on-screen display highlights query terms in bold, red font. There is a print version that removes unnecessary user interface graphics and highlighting. There is no command to email documents. There is no word processor format and no dual column format. The print version of documents saves nicely to local storage. Citations within an opinion to other cases that are in the library of databases contracted by the same bar association are hyperlinked. Bar associations can negotiate to get hyperlinks to cases in other libraries. At present, however, hyperlinking that crosses library boundaries involves a system speed issue that Lawriter is looking to overcome.
Court opinions have official citations and official pagination. All state cases have parallel West citations. Federal cases do not. Where bar associations have specified West pagination by contract, Casemaker ™ has it. Lawriter has a written agreement with West for use of West’s pagination. Only one bar association has requested vendor neutral citations and pinpoint paragraph citations. That association’s cases have them. For unreported cases, Lawriter creates citation information including paragraph citation and submits the citation formats to the Blue Book seeking approval.
The Vermont Casemaker Web Library will also include a citator which will allow members to check the subsequent history of cases. By the time the VBA Casemaker library is fully operational, Lawriter expects to have an advanced citator, which will make all the case history features found in Shepard’s Citations available at the push of a button.
President’s Column, Vermont Bar Journal, June 2002, p. 1. Shea demonstrated his knowledge of the difference between a citator and software that performs citation searching. He said that what most states in the consortium will have is not a citator but citation searching performed by software, but bar associations can negotiate for a citator. The citation searching feature has been developed and is in testing. It is due to be rolled out within days of publication of this article. This feature will be added without additional cost to participating bar associations. This feature will be invoked automatically when viewing a court opinion and will list other cases that cite the one being viewed. The list will be ordered and grouped to ease evaluation. Lawriter also has done work on a sample citator to determine the cost of producing one so that bar associations can negotiate for a citator covering their state’s cases. For this citator, as distinguish from citation searching, qualified persons read the cases and mark whether a case has been subsequently followed, overruled, distinguished, or criticized. Our question put Shea in a delicate position given Valerio’s claim, but it was clear that Lawriter is forthright in its claims and any error in the claim that Casemaker’s citator will have “all the case history features found in Shepard’s Citations” is a misunderstanding of legal research by the President of the Vermont Bar Association.
We presented what we know about documentation of the contents of the service under “Coverage, Scope, and Timeliness” above.
Lawriter prepared a basic user guide that bar associations can dress with their name, logo, and other elements. Members of the consortium have extended and revised the manual The version prepared by the North Carolina Bar Association tends to be circulated in other states. Lawriter acts as a repository and disseminator of the user-developed documentation.
Casemaker Table of Contents, Connecticut Bar Association. This document has no title page. It begins with the table of contents and the first line says “Casemaker Table of Contents,” but really it is a user manual.
Casemaker Help, Nebraska Bar Association.
Casemaker Online Demonstration, Nebraska Bar Association.
Frequently Asked NSBA Casemaker Questions, Nebraska Bar Association.
“Cheat Sheet” for using Casemaker to do Caselaw Searches, Nebraska Bar Association.
Casemaker Online Demonstration, Massachusetts Bar Association.
Casemaker Trial FAQ, Casemaker Trial Web site.
Lawriter says it has tried to develop a system that an end user can search without ever looking at a manual. Joseph Shea says, “Utilization is significant” and believes based on feedback that the company has succeeded in making the system intuitive for its target users. He believes most users never have seen a manual and there are almost no questions being presented by users on how to use the service. Lawriter provides customer support by telephone, and demands upon customer support have been light.
The value-to-cost ratio is difficult to assess because costs are not generally published. As this article was going to press, the Oregon State Bar put out news about their consideration of Casemaker. Their news story includes an estimated cost of $120,000 to $150,000 per year. They base this cost on their conversation with other bar associations. The Bar Associations negotiate the content of their libraries and pay Lawriter an amount based on that content. Thus, while different Bar Associations pay different amounts, the formula used to determine that amount is the same. Only the content and a certain few features vary. Certain features that require additional work (like a true citator or frequent updating) or that are the result of agreements with other providers (like West pagination) add costs outside the formula.
Although the response from Consortium members to Casemaker™is reported to be “overwhelmingly positive” in interviews with Association representatives, we were unable to obtain utilization figures at the time of this writing. Lawriter does report usage figures to the Bar Associations, but reports of those figures have not been made public.
Joseph Shea and Bar Association representatives do not claim that Casemaker ™ is the answer for all research. The goal, instead, is to offer a low-cost option for the majority of primary legal research and leave the secondary research to other providers. Shea says Casemaker™ is designed to satisfy what most lawyers need most of the time, to be easy for end users to use, and to be American owned. It is not aimed at what only some lawyers need only some of the time. If indeed the content hits that mark and if indeed the service is a free benefit of membership or at least not a large component of bar association dues, with the system’s ease of use aside from non-standard syntax, the value to cost ratio is favorable.
We are ORing (import export) with “international trade” . According to Casemaker’s OR syntax, we need not only the comma. We also need the enclosing parentheses. The parentheses we have in the first Casemaker™ version of the query above do not enclose the two OR terms. They enclose the AND terms in an attempt to expressly control the order of operation, to force the AND operation implied by the space between import and export to be executed before the OR operation. Don’t we need the additional set of parentheses in the second version of the query? Only then would we have a set of parentheses to nest the AND terms and a set to construct the OR operation. Let’s see.
In the federal circuit courts library, a query lacking the extra set of parentheses, (import export),”international trade” returns two cases, Commodities Export Co. v. U.S. Customs Service (1992), 957 F.2d 223 and Senator Linie GMBH & Co, v. Sunway Line Inc. (2002) 2nd Cir., No. 01-7374. In the same database, the same query with the extra set of parentheses, ((import export),”international trade”) returns no results. So this search must be an exception to the way OR expressions usually are constructed on Casemaker™. This is one of the problems with nonstandard syntax, that is, non-algebraic syntax. The programmers of the query processor inevitably will bang into queries, even relatively simple ones like this, where they have to make exceptions or where they fail to perceive that their system already incorporates exceptions. Then the searcher has to discern by induction, since it is not documented, when exceptions apply and the effect of them.
That query ought to be indecipherable, but the system returned one hit, and it was neither of the cases cited above. It was Nippon Miniature Bearing Corporation v. Weise (2002), 9th Cir, No. 97-55930. The only term highlighted as being hit by the query was “international.” The phrase “international trade” did occur in the case text, but it was never highlighted. Why wasn’t the phrase highlighted, and why was this case not included in the results of the other version of the search? In the other version, the phrase “international trade” was ORed to everything else in the query? Since the phrase was ORed, an opinion should not need anything but the phrase to qualify as a hit.


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What law governs life insurance disputes?
When making a life insurance policy claim, it is important to clarify whether the insured has an individually-purchased policy or an employment-based group policy. If the insured is a member of a non-governmental employment-based group life insurance plan, the life insurance will be governed by a federal law called the Employee Retirement Income Security Act of 1974 or ERISA, which establishes the standards for the parties responsible for administering an ERISA plan and claim and has stringent requirements for processing life insurance claims. If the insured owns an individual life insurance policy, any required deadlines and standards in processing a life insurance claim will be administered according to state law. As discussed in this FAQs section and as discussed in the insurance bad faith and ERISA FAQs sections, it is critical to determine whether ERISA or state law apply as the available remedies and potential damages are very different.
What timelines govern a life insurance claim?
In making a life insurance claim, the insured will first want to clarify whether he/she has an individually-purchased policy or an employment-based group plan. If the insured has a non-governmental employment-based group policy, the plan will be governed by a federal law called the Employee Retirement Income Security Act of 1974 or ERISA, which sets the standards for the party responsible for administering an ERISA plan. ERISA has stringent requirements for processing life insurance benefit claims. If the insured owns an individual life insurance policy, any required deadlines and standards in processing a life insurance claim will be administered according to state law. California law is particularly beneficial to life insurance claimants.
A claim should be approved or denied within 90 days of receipt of the claim. See 29 C.F.R. § 2560.503-1 (f)(1).
Should more time be necessary to review a claim, the plan can extend the time frame for up to 90 days, but the plan must inform the insured within the initial 90 days that additional time is needed, why the additional time is needed, if there are any unresolved issues or additional information needed, and when a final decision will be rendered. Id.
If a claim is denied,the insured has 6 0days to file an appeal. See 29 C.F.R.§ 2560.503-1 (h)(2) (i).
A decision on the insured’s appeal must be made not later than 60 days after receipt of the insured’s request to review a denied claim. See 29 C.F.R. § 2560.503-1 (i)(1).
Should special circumstances require an extension, the plan may take up to 60 extra days, but the plan must provide an explanation in writing of the special circumstances along with providing a date by which the plan expects to make a decision on the insured’s claim.See 29 C.F.R. § 2560.503-1 (i)(1).
A claim should be approved or denied within 40 calendar days of receipt of all necessary information to determine liability for the insured‘s claim. See 10 C.C.R. § 2695.7 (b).
The 40-day period does not begin to run until all relevant information has been received. See 10 C.C.R. § 2695.7(b).
Should the insurer require additional information to conclude the claim investigation, then it must notify the insured in writing within 40 days after the claim is filed, and provide a written list of all information reasonably needed to investigate the claim. See 10 C.C.R. § 2695.7 (c) (1).
An insurer must continue to send the insured an update every 30 days if additional time and materials are still required, while continuing to clearly set forth what is needed to process the claim. See 10 C.C.R. § 2695.7 (c) (1).
California law provides four years to sue on a contract. SeeCCP. §337 (1). However, an insurance contract may set forth a shorter time limit in which a suit must be brought in the policy, if the policy provision is clearly stated and reasonable in the time it provides. See Frazier v. Metropolitan Life Ins. Co., 169 Cal.App.3d 90, 103 (1985) (Two year statute of limitations was found to be reasonable).
How does a claimant file a life insurance claim?
The most important document in filing a life insurance claim is the life insurance policy, or if the insured is a member of a group insurance program for which ERISA applies, the summary plan description and group insurance certificate. These documents typically provide a detailed overview of how the plan or policy works, what benefits it provides and how to file a claim for benefits. If the insured is a member of a union or a plan associated with a collective bargaining agreement, he/she should also check any applicable collective bargaining agreement’s procedures for filing, claims, grievances and appeals. If the insured does not have a copy of the life insurance policy or summary plan description, the insured should immediately make a written request for a copy of his/her policy, summary plan description and/or group certificate that contains the claims procedures. The plan administrator in ERISA matters is required by law to provide the insured with a copy upon written request. The insured will also want to contact his/her insurance agent, insurer or plan administrator to obtain claim forms.
At the very minimum, an insurer will require that the insured provide the death certificate of the insured person. In some situations, a copy of a marriage certificate may also be helpful, particularly if there are ex-spouses that use names from former marriages. An owner or beneficiary may also need to have access to current mortgage or loan paperwork, credit card statements and employee benefits information.
Remember, a life insurance claim is a very proof intensive process, and a claimant should document all interactions with insurer, plan administrators, employers and representatives of the insurance company (such as insurance agents) every step of the way. Always memorialize all telephone or in-person conversations by letter summarizing what was discussed, and send it to all parties involved in the processing of the claim to confirm the communication occurred. Also, the claimant should maintain a file of everything related to the claim and keep a chronology of claim related events. This way, should the insured be forced into litigation, there is a clear and definitive record of how the claim was handled.
What are the typical exclusions in a life insurance policy?
The most common exclusion in life insurance policies is the suicide exclusion. Life insurance policies typically contain provisions excluding coverage for death caused by suicide or attempted suicide. Policy language excluding suicide must be plain and clear and conspicuous to be enforceable. This requires that the words used in the policy are part of the working vocabulary of the average layperson, and that the policy exclusion is presented or positioned in a place that attracts the reader’s attention. See Malcolm v. Farmers New World Life Ins. Co., Cal. App. 4th 296, 301-302(1992). For example, California courts have held that the phrase “suicide, whether sane or insane” was not ambiguous, and was easily understood as intentional self-destruction independent of whether the insured was sane or insane at the time of the act. See Searle v. Allstate Life Ins. Co., 38 Cal.3d 425, 436 (1985). While a death that occurs during an attempted suicide will result in an exclusion of policy benefits, a death resulting from an “accident” is not a “suicide’ even if the decedent was engaged in reckless activity.” See Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1126(9th Cir. 2002) (applying federal common law under ERISA). The insurer must establish beyond a preponderance of the evidence that the insured took his or her life, and while evidence of mental impairment is admissible, it will not necessarily be the determinative factor in a finding of suicide. In order for mental capacity to be the determinative factor, it must be established that the mental capacity of the insured was so impaired that he or she did not understand the physical nature and fatal consequences of the act that was the cause of death. See Searle v. Allstate Life Ins. Co., 38 Cal. 3d at 439 (1985).
Criminal acts exclusions are also common exclusions, and typically exclude coverage for injury or death sustained while committing or attempting to a commit a felony. See Romero v. Volunteer State Life Ins. Co., 10 Cal.3d 571, 574 (1970). Some other life insurance exclusions that are becoming less common include dangerous act exclusion, war time exclusion and aviation exclusion. These exclusions are becoming rarer as most insurers tend to charge a higher premium to cover these activities rather than exclude them as they did in the past.
What is the difference between a STOLI transaction and a life settlement?
Stranger-owned life insurance, or STOLI, is the practice or plan to purchasea life insurance policy for the benefit of a third party investor who, at the time the policy is created, does not have an insurable interest. An insurable interest exists when loss or damage to a person or object would cause the third party to suffer a financial or personal loss, and usually is created by property rights, contract rights or potential legal liability. In these cases, insurers seek to have the policy declared void ab initio (void from the beginning of the contract) for lack of an insurable interest or due to the misrepresentation by the applicant.
In contrast, a life settlement is the sale of an existing life insurance policy to a third party for more than its cash surrender value, but less than its net death benefit. Typically, a life settlement is sought when the insured decides he or she no longer wants or needs the life insurance policy the insured previously purchased, which happens for various reasons, including an inability to pay premiums, the opportunity to obtain a superior insurance policy, changes in estate planning needs and rising healthcare costs. Therefore, a life settlement offers the insured the option of gaining value.
The critical factor in terms of determining whether a transaction is a life settlement rather than a STOLI transaction is whether the life insurance policy that is being settled was initially purchased for a legitimate insurance purpose. Therefore, the court will endeavor to closely analyze the material facts to determine whether the intent was to create an insurable interest or to sell to a third party investor. Some of the factual circumstances that indicate a STOLI transaction include: the purchase of a life insurance policy for an insured between 65 years old and 85 years old in exchange for an immediate lump-sum payment, selling policies initially after they were purchased or purchasing a policy at no cost to the insured individual in exchange for a partial payment on the policy’s face value to the insured’s beneficiaries upon the owner’s death. Typically, an insurer will request to keep the premiums paid should a STOLI arrangement be found; although currently, case law is unclear as to whether an insurer has the legal right to retain premiums paid on STOLI transactions.
What is an incontestability clause and how does it work?
The incontestability clause is a life insurance policy provision that prevents an insurer from denying a claim or voiding a life insurance policy after it has been in force for a specified period of time. California Insurance Code section 10113.5 states that all individual life insurance policies require an incontestability provision, which limits the insurer’s ability to contest the policy based on a material misrepresentation made on the application for a time period up until two years. As long as the insured died within the contestability period, the insurer may contest the information at the inception of the life insurance policy even after the expiration of the two year period. See Amex Life Assur. Co. v. Sup. Ct. (Slome Capital Corp.), 14 Cal.4th 1231, 1236(1997). A material misrepresentation is a statement made by a potential insured in the application process that is factually incorrect, and is material to the insured risk, such that had the insurer known about it at the onset of its review, it would have refused to issue the policy or would have issued the policy with limitations or a higher premium.
However, should the life insurance policy be lapsed for non-payment of premiums, the insurer can request another application, and will be provided another two years to contest that application. The incontestability clause does not obligate an insurer to pay life benefits for a life insurance policy that is void ab initio due to the application being a forgery, the owner lacking an insurable interest or the applicant being an imposter.
What should an insured do if his/her insurer improperly lapses a life insurance policy?
A lapse or termination in coverage typically occurs from a failure to timely pay a scheduled premium or otherwise results from the insured manifesting an intent not to renew a life insurance policy. Express provisions in a life insurance policy will discuss when the insurer is allowed to lapse a policy for failure to pay premiums. All life insurance policies include a grace period during which coverage remains in effect although the renewal premium has not been paid before expiration of the policy period. Payment of the renewal premium during the “grace period” will prevent any lapse in coverage.
If an insurer lapses a life insurance policy and if the insured believes this was improper, it is important to take immediate action. The first step is to contact the insurer to confirm that the policy has indeed lapsed and is not currently in a grace period. If the policy has indeed been lapsed, then the insured should inform the insurer of the impropriety of the policy lapse, and request that it reinstate the policy. Where a policy has lapsed for nonpayment of premiums, the insurer may offer to reinstate upon receipt of the unpaid premiums. Typically, an insurer may condition such an offer on receipt of a new application, and it often will exclude coverage for losses between the lapse date and reinstatement date. An insurer may be estopped from refusing reinstatement where it retains premiums tendered with an application for reinstatement for an unreasonable amount of time. See Madirosian v. Lincoln Nat’l Life Ins. Co, 739 F.2d 474, 478 (9th Cir. 1984) (applying California Law).
Furthermore, should the insurer act as if the policy is still in force through misleading representations or conflicting notices for past due payments, then it may be deemed to have waived its right to cancel the policy. If the insurer attempts to exclude coverage for losses as a result of improper lapse, it is important to remind them of the circumstances that caused the lapse, and document the entire chain of events in a formal letter to the insurer. The insured should also contact his/her insurance agent/broker (if there is one) to determine why the policy lapsed and what can be done to reinstate it. It may be possible to force the insurer to take responsibility for the agent’s actions if the agent acted negligently. If all else fails, the insured should consult with an experience life insurance attorney about exploring his/her legal rights further.


FOR APPELLANT: Marjorie M. Smith, Brooklyn, New York. FOR APPELLEES: Jennifer G. Rodgers, Assistant United States Attorney (John J. O'Donnell, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.
United States Attorney (John J.
Appeal from a judgment of the United States District Court for the Southern District of New York (Pauley, J.).
Derrilyn Needham appeals from a judgment of conviction in the United State District Court for the Southern District of New York (Pauley, J.), entered on her plea of guilty to eleven Hobbs Act robberies, multiple weapons charges, and drug and robbery conspiracies. On appeal, Needham argues that the district court abused its discretion by improperly considering the factors listed in 18 U.S.C. § 3553(a) in sentencing her to 360 months' imprisonment. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
A district court's sentence is reviewed for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). This reasonableness review "encompasses two components: procedural review and substantive review." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). "A district court commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified), makes a mistake in its Guidelines calculation, . . . treats the Guidelines as mandatory[,] . . . does not consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact." Id. at 190 (citations omitted). In reviewing for substantive reasonableness, we "take into account the totality of the circumstances, giving due deference to the sentencing judge's exercise of discretion," Cavera, 550 F.3d at 190, and "we will not substitute our own judgment for the district court's on the question of what is sufficient to meet the § 3553(a) considerations in any particular case," Id. at 189 (citation omitted). "We will instead set aside a district court's substantive determination only in exceptional cases where the trial court's decision 'cannot be located within the range of permissible decisions.'" Id. (emphasis omitted) (citing United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
In sentencing Needham, the district court accurately calculated the Guidelines range and considered the applicable statutory factors, the written arguments of the parties (including the Government's 5K1.1 letter), and the oral arguments. Judge Pauley explained in detail how he arrived at the 360-month sentence-which represented a substantial reduction from the applicable Guidelines range of 660 months to life imprisonment. Nothing more was required.
Needham contends that the district court "largely ignored" the significance of her cooperation and the "positive aspects of her conduct since [her incarceration]," and asserts that it was unreasonable for the court impose a sentence of 30 years when her co-conspirator, Ronald Knibbs, was sentenced to 130 months. Needham is incorrect. Judge Pauley cited Needham's cooperation as the reason for its downward departure from the Guidelines range, stating: "[B]ecause of your cooperation, it is appropriate that I not impose on you a sentence equivalent to life, and only because of your cooperation will you have the chance to come out of prison and be a contributing member of society." And Needham's admitted involvement in approximately 40 robberies, including two that ended in murder, justifies the imposition of a longer sentence than that imposed on co-defendant Knibbs, who participated in 14 robberies. In light of "all the circumstances presented," Needham's sentence is reasonable. United States v. Florez, 447 F.3d 145, 158 (2d Cir. 2006) (discussing sentencing disparities between codefendants).
For the foregoing reasons, and finding no merit in Needham's other arguments, we hereby AFFIRM the judgment of the district court.