How ERISA Has Redefined the Very Nature of Insurance

By: Michael A. McKuin

What Is Insurance Anyway? 

In order to appreciate how ERISA has changed the very idea of  what we think of as “insurance” you have to first understand what exactly insurance is or better yet, what it isn’t.  We often hear references to the so-called insurance “industry”. Think about that for a minute.  When most people think of an industry, they tend to think of a segment of the economy that delivers a product or performs a legitimate service to generate a profit.  But the insurance industry produces nothing.  Its existence adds nothing to our economy. It sells something that consists of a mere idea -- a belief that one is protected and secure, based upon nothing more than a promise. It sells this idea to a fearful and dependent public. Basically, it moves money around. That’s all it does. And its primary motivation is to move as much of it as possible from its policyholders’ pockets to its shareholders’ pockets.  I suppose it can be argued that banks and other financial services and investment firms do the same thing -- move money around that is.  The difference, however, is that banks make a percentage, by taking your money, paying you interest on it and loaning it to someone else at a higher rate.  A financial advisor may get a percentage of every trade or he’s paid by the transaction he makes.  A realtor gets a percentage of every sale.  Even lawyers often get paid a percentage of the amounts recovered for their clients.  The insurance industry doesn’t operate that way.   It makes its profit (or to put it more accurately - and fairly, it increases its profit) by not delivering on the very thing it promises.      

The modern concept of insurance as we know it started in a 17th century London coffeehouse, where shippers joined together collectively to protect themselves against such things as losing cargo to pirates or even worse, losing entire vessels in an age when shipwrecks were common. The coffeehouse belonged to a guy by the name of Edward Lloyd and today the company that bears his name is known as Lloyds of London.  The basic theory involved a “pooling of risk”. Policyholders paid money into a common fund to protect themselves from certain identified risks of loss.  The money in this theoretical fund, at least constructively, was said to belong to the people who paid into it.  The intermediary syndicate merely administered the fund and earned a reasonable fee for its services.  Well that is not the way it works in the modern world today.

Eventually, as our economic and legal systems grew, insurance became a necessity.  When my own family endured the trauma of a gigantic oak tree crashing through our roof during a severe mountain storm, without homeowners’ insurance we would have faced tens of thousands of dollars to transport two cranes (the first one got stuck) up a mountain road to an altitude of 5,000 feet, remove the tree and repair the roof, not to mention the cost of relocation for the three months we were displaced from our home.  Such things as fire, automobile liability, life, and disability insurance are a fact of life for almost all of us. Without it most unanticipated casualty expenses could never be fully paid. Long term disability insurance is akin to traditional insurance because most of us will never become disabled.  But some of us will, while still in our productive years and without it more people would lose their homes and possibly end up on welfare rolls.  Any way you look at it, the need for insurance – or at least the perceived need for it – has grown exponentially as society grew larger and more complex.

And as health care became more sophisticated, more widely available and more expensive, our society became more and more dependent upon insurance to pay for it.  The trouble came, when it expanded into covering even routine medical care.  That creates a problem all by itself, because unlike events such as crashing trees, fires, earthquakes, pirates or shipwrecks, which are unpredictable and relatively uncommon, health care is something that we will all need at one time or another and routine health care is something most of us need most of the time, especially as we advance in age.  Aside from catastrophic medical and hospitalization coverage, the thing we call health insurance today really isn’t true insurance at all. It’s a pooling of money to cover the cost of an inevitable service, more like a way to control cash flow, with an insurance company managing the money. 

But something else also changed along the way, at least for non-casualty insurance.  The whole concept of whose money the insurance company was holding changed. Today, when an insurance company receives a premium dollar, it regards that money as its own (although it has done nothing up to that point to earn it, except to “sell” a policy).  Yes, there are reserves set aside to pay claims, as required by state law and as determined by a company’s underwriters.  Nevertheless, from the moment it receives the money, its goal is to keep as much of it as possible for itself.  The less it pays out in claims the more it keeps. The more it keeps the greater its bottom-line profit. So it’s pretty basic that the financial interests of an insurance company, which are necessarily profit-driven, are in many ways adverse to the interests of the policyholders that the company is obligated by contract to protect.  Long before there was a law called ERISA, the relationship between insurance companies and insureds was poisoned by that conflict. As a result, state consumer protection laws evolved to address that problem, [1]  but when ERISA was thrown into the mix that protection went out the window and all hell broke loose.

The Essence of the Fraud

Indulge me in a few moments of silliness.  I’ll start with a simple hypothetical coupled with a philosophical query.  (We lawyers are really big on hypotheticals and philosophy).  Let’s say that the Chairman of the Board of the ABC Insurance Co. has just named me as its new CEO.  It seems ABC’s profits have been slumping lately and the Chairman, who I met in a bar last week, thinks I'm just the guy to turn things around and put smiles on the faces of dividend-hungry shareholders.

I ponder the situation for about 20 minutes and I come up with a plan. I decide that ABC will offer a new type of insurance policy to the general public that will provide the following health and disability benefits: “NONE”.   That’s right; I said “NONE” --   No benefits. Nada. Zilch.  Put aside, for the moment any state consumer laws that may require ABC to actually provide some minimal level of coverage. Also, disregard the fact that health and disability benefits are never combined into a single policy.  (I’m trying to make a point here.)  Under my new policy, ABC will not pay anything to anybody – EVER.  And the policy will clearly state that fact on the outside cover in large boldface type so that no one could possibly miss it.  It will make for easy reading – about a half a page should do the trick.

In order to make my new policy as widely available on the market as possible, I tell my Chief Underwriter that absolutely no one is to be turned down for coverage.  As long as they can fill out a 2-line application and hand over a check, they’re covered. Then I tell my Director of Marketing to sell this policy to the public for a base premium of $1,200 per year per person -- That's a simple $100 a month payroll deduction for the participant.  Nothing could be easier.  I'll even throw in dependent medical coverage for an extra $25 a month.  During open enrollment at your place of employment, you’ll be given the opportunity to sign up with my new plan if you choose.  Or you may select any number of other competing plans that actually do provide some benefits if you want or you may opt to join no plan at all -- It is, after all, a free country.

Just so there’s no misunderstanding, let me sum this up.  If you sign up with my plan, I’m going to take your money and give you nothing in return, except a worthless one-page policy.  That’s what you get for your $1,200 a year.  You get absolutely nothing.  If you should become sick or disabled under my plan, you will in all probability exhaust your life savings, lose your home in foreclosure and your car will be repossessed.  You may even end up living on the street.  Or you may die.  And I am telling you all of this right up front.

I ask you, is that fair?  Of course it is.  What could be fairer? I haven’t defrauded you.  I didn’t lie or take your money under false pretenses.  I told you from the beginning that I was going to take your money and give you absolutely nothing of any value in return. What more do you want from me?  Assuming you’re at least 18 years old and of sound mind, if I tell you all the facts right up front and you knowingly and willingly agree to hand over the cash, then what in the hell is wrong with that? Of course if you do it you’re a complete idiot, but I can’t be held responsible for your shortcomings. From a moral standpoint, you might say that if I did such a thing, I’m some kind of reprobate.  OK, nobody’s perfect.  Caveat emptor (let the buyer beware).  That’s the name of the game in the American free enterprise system and I’m all in favor of it.

Now let’s change this mindless hypothetical just a little.  Say I’m still the CEO of ABC Insurance Co. But as it turns out, I’m not having much success selling my worthless one-page “no-benefits” policy.  The public’s a lot more sophisticated than I thought and there just aren’t enough suckers out there to make it worth my time.  So I decide that if I’m going to succeed in the insurance game, I’m going to have to come up with a new scheme in order to compete with those other companies out there that actually do promise benefits for your premium dollar.  OK, I’m an adaptable kind of guy, so I change my policy.  I re-write it so that it now promises all kinds of benefits. It goes on for more than 30 pages, promising to pay 80% of any major medical expenses you incur.  It also promises that if you become totally disabled and unable to work, ABC will pay you 75% of your pre-disability income. 

I offer to sell this policy to you for the same $1,200 as before.  You sign up for my new policy and walk away happy – satisfied that if you become sick or disabled, you and your family will be protected.  But let me make something perfectly clear here.  In my altered hypothetical, nothing has changed, except that I’ve made a promise.  I’m still the same scoundrel I always was and I have no intention of actually paying you anything, ever, under any circumstance.  As I said, my goal is to restore profitability to ABC and I certainly can’t accomplish that if I’m hampered by such nonsense as paying out claims. 


You are an impediment to my year-end bonus and to the value of my stock options.  So if you submit a health claim, I’ll find a reason to deny it, applying one of the many exclusions I’ll write into the policy.  I might determine that whatever medical treatment you underwent wasn’t “medically necessary” or I’ll find some arguable pre-existing condition to apply.  If you have a long term disability claim, I’ll deny it as well, saying that you’re obviously capable of working at some job somewhere. The only way I will ever pay your claim, is if you get a court judgment against me. Even then, I'll have my lawyers drag your case out for as long as I can.  With any luck, in a state of financial desperation, you’ll commit suicide long before your case goes to court and my shareholders will be rid of you once and for all.  If not and if all else fails, I’ll try to negotiate with you to take 10 cents on a dollar.  And maybe I’ll get lucky and settle up for half of what I owe you.

So again, I pose the question again, “Is this fair?” Of course not. It isn’t fair because I lied to you. And to steal a line from Wilfred Brimley in one of my favorite movies, Absence of Malice, “It ain’t legal.  And worse than that, by God, it ain’t right.”  And in the old days before ERISA pre-empted state law remedies, if an insurance company ever did such a thing you could sue for breach of contract, fraud and “breach of the implied covenant of good faith and fair dealing”, commonly known as “bad faith”, which enabled insureds to sue in state court and perhaps collect punitive damages far in excess of the amount of your claim.  Not anymore.  Thanks to ERISA an insurance company can legally steal your money by taking your premium dollars and refusing to pay legitimate claims. That is the very essence of the scam that is ERISA.   

Paradoxical Perplexity or Conspicuous Insincerity - How Trust and Contract Law Mix Like Oil and Water

Another absurdity arises in the relationship between insured and insurer in an ERISA-governed plan.  When it comes to enforceable  remedies, ERISA has been viewed by the courts as sort of a patchwork of contract law and trust law. [2]  Under ERISA, insurance policies are still issued just the way they used to be, as if they were promises, subject to traditional contract law, but under ERISA if that policy is sued upon, the courts usually apply principles of trust law, which often allow those policies to be interpreted and applied by the insurance companies who write them.  So classic principles of contract law go out the window and ironically, so do classic trust law principles. 


If contract law applies, then enforceable obligations are imposed. That is, after all, the essence of contract law.  But under ERISA, policy benefits often cannot be enforced. On the other hand, if trust law applies, then a whole host of legal relationships arise. For example, under trust law, there must be a “settlor” (also known as a “grantor”) of an identifiable “trust”, established for the benefit of the “beneficiaries” of the trust.  In an ERISA benefit plan, who’s that?   We’re told that role is assumed by the employer. But most employers play no such role in the establishment or administration of such plans, other than to purchase a group policy. So in those cases would the “settlor” of the fictitious “trust” be the insurance company?

Under basic trust law, usually an asset, such as money or property is held in the trust, for the benefit of the beneficiaries of it.  In an ERISA “welfare benefit plan” (as opposed to a pension plan), where’s the money? In an insured plan, supposedly it would be the insurance policy, under which benefit claims are paid.  Under trust law, there must be an “instrument” clearly setting forth the intentions of the settlor.  In an ERISA benefit plan, where’s that? We’re told that the “plan document” satisfies that requirement, which for an insured plan is again usually an insurance policy, 

Under trust law, there must be a “trustee”, responsible for carrying out the wishes of the settlor.  This trustee is required by law to act as a fiduciary, placing the interests of a beneficiary above those of his own.  In an ERISA benefit plan, where do we find that person?  That’s where it starts to get a little murky. We’re told that it’s the “plan administrator”, but if you check Form 5500, which each plan is required to file each year with the U.S. Department of Labor, it can be any person named by the employer and if no one is named on the form, it is assumed to be the employer itself.  Although it’s legally permissible to be both the settlor and the trustee of a trust, it seems to defeat the whole point of establishing the trust in the first place?

Under trust law, discretionary control over the distribution of trust assets may be retained by the settler and then vested in an independent trustee to carry out the settlor’s wishes. And if it’s an insured plan, for ERISA trust law purposes, if discretion is then delegated to the insurance company, then it essentially performs the functions of a trustee, as asinine as that may be. And if that twisted logic and legal perversity isn’t enough, such discretion may encompass the most fundamental decision of whether or not to actually pay benefit claims.

In many states, and for decades in all states, that discretion could (and usually was) delegated by the employer to the insurance company, by means of some independent “plan document”.  Over time, it got to a point where insurers got lazy and they would just unilaterally throw discretionary language into their own policies, conferring discretion upon themselves – discretion that could then be exercised over the beneficiaries, who would have no relationship whatsoever with the insurance company, beyond that of a consumer.  Of course, none of this makes any sense and if it seems like we’re going around in circles here, we are.  Insurance policies are nothing more than contracts, but in the ERISA context, they can be transformed into trust instruments.   Trust law simply cannot co-exist in a relationship where there are contractual obligations owed by the trust fiduciaries to the trust beneficiaries that run counter to the terms of the trust itself.  Indeed, how can one have a contractual obligation under a policy to pay benefits and simultaneously have the discretion (under trust law principles) to not pay?  

Perhaps the courts have actually answered all these perplexing questions.  For example, in Lang v. LTD Plan, and Brown v. Blue Cross & Blue Shield of Alabama, Inc., [3]   the courts in essence held that that “true” trust law doesn’t really apply in the ERISA context.  As the 9th Circuit stated in Lang:  “Brown explained that plans such as this one, funded by insurers and also administered by them, are not true trusts.  .  .” [4]   So instead of “true trust” law, do we now have a new species of law that applies in ERISA cases (one I was never taught in law school)? If so, what do we call it?  Do we call it “non-true” trust law?  If that sounds a little awkward, I suppose we could just as easily call it “false trust”, “non-trust”, “half trust”, or “anti-trust” law   (Oops, that last one’s taken).  Or how about “no-kinda trust at all” law.  For those of you who recall the so-called “Trial of the Century” of O. J. Simpson, it sort of invites a Jonnie Cochranesqe metaphysical query like, “If I’m not a true lawyer, then what am I?”  Or, “If I put on a knit hat, do I become someone else?”  How can something simultaneously “be” and “not be”? That is the Shakespearean question. And in my mind, that is the fundamental absurdity of ERISA.  It relegates the most basic concepts of contract law and trust law to the status of mere fiction.

If one can rape the English language in this manner, then it’s easy to academically rape the ERISA statute, as the U.S. Supreme Court did in Firestone Tire & Rubber Co. v. Bruch, [5]   where the Court first created a rule, holding that the default standard of judicial review in ERISA benefit cases is de novo.  It then turned full circle and created an exception to its own rule broad enough to destroy it. 

So ERISA Was Enacted to Protect Who?

The result of all this was to extend the very protection to insurance companies that ERISA had guaranteed to insureds.  In time, insurers actually came to believe that ERISA was enacted for their benefit not that of insureds.  Nowhere was that made clearer than in the aftermath of the Ninth Circuit’s decision in Regula v. Delta Family Care Disability Plan, [6] where the Ninth Circuit imported what was known as the “Treating Physician (TP) Rule” from Social Security disability law into ERISA disability law. (Social Security regulations have since abolished that rule).  In essence, what that meant was that a court was to defer to the opinion of a claimant’s treating physician on the issue of physical or mental impairment. The justification for the rule arose from the obvious fact that a treating doctor has the power of direct observation on physical examination, something a paper-reviewing doctor can never have; and a treating doctor has the advantage of observing how a patient has fared over time, while a one-time examining doctor does not.  When the Regula decision was handed down, the insurance industry hit the ceiling. A challenge was immediately launched against the decision in the U.S. Supreme Court.

The American Benefits Council (ABC), the ERISA Industry Committee (ERIC) and the National Association of Manufacturers (NAM), along with the Michigan Manufacturers Association (MMA), all urged rejection of the TP Rule.  As exposed by a copyrighted article at the time that has long since mysteriously disappeared from sight (but which I still have a copy of), what lay at the center of their argument was a logical fallacy of the worst sort.  Their primary argument was that the TP Rule undermined “ERISA’s grant of discretionary authority to plan administrators.”  (Their words – not mine).  There’s just one small problem with that contention.  ERISA doesn't grant any discretion of any kind to anybody. The idea that those folks believed it did was beyond astounding. To quote again from the article, it said that the TP Rule “cannot be squared with ERISA’s principles of discretion and deference”. [7]  Once again, ERISA has no such “principles”.   These so-called “employer groups” (who were really minions of the insurance industry) expressed a profound belief that ERISA was enacted for their protection, not the protection of employees -- and that somehow ERISA itself bestowed discretion upon them. It doesn’t. But the sad fact is that courts have often bought into that gibberish, to the detriment of benefit claimants throughout the country.

Less than two years later, they would get their way and prevail at the Supreme Court in Black & Decker Disability Plan v. Nord.  [8]   The Ninth Circuit had previously held that the Black and Decker Plan failed to follow the TP Rule and thus it reversed a District Court order in favor of the plan, applying the precedent of Regula. [9]   The Supreme Court reversed the Ninth Circuit, essentially holding that “employers have large leeway to design disability and other welfare plans as they see fit” and that courts may not “impose on plan administrators” a burden, such as the TP Rule.  [10]  

Both the Black & Decker and Delta Dental plans were self-funded, so arguably the decision could be justified on that basis, but it also massively benefitted the insurance industry.  In fact, the American Council of Life Insurers filed an amici curiae brief, at the Supreme Court urging reversal, as did the American Benefits Council, the ERISA Industry Committee, the National Association of Manufacturers and Peabody Energy Corp. [11]  

The reason for all this nonsense is ERISA itself. Trust law principles may make sense, when applied to pension plan administration, but they make no sense when applied to what are called “ERISA welfare benefits”, especially when those benefits are clearly defined by contract (e.g. an insurance policy).  Fortunately, although the Regula decision and the TP Rule did not survive for very long, there remains well established case law, holding that an opinion of a treating physician regarding a claimant’s level of impairment, is to be accorded far greater weight in ERISA LTD cases than that of an examining physician or a mere paper-reviewing physician.  [12]  

Why Sue Me?  I’m Just an Innocent Insurance Company.


In keeping with this paradigm, case law emerged holding that insurers were so removed from this process, they were not even parties to any benefit dispute.  The Ninth Circuit cases on point were Everhart v. Allmerica Financial Life Ins. Co., [13]   and Ford v. MCI Communications Corporation Health and Welfare Plan. [14]   Those cases held that any action for plan benefits had to be brought against the “plan” or the “plan administrator”, not the insurer.   Absurd?  Slightly.  In an insured plan, who else but the insurer is responsible for paying benefits? Moreover, until recently, before half the states adopted laws banning discretionary clauses in insurance policies,  [15]   in all likelihood it would be that very insurer, who was the designated fiduciary under the plan, with “discretionary authority", so as to accord its claims decisions deference under the rule in Firestone.  And that remains the case in those states that have not yet enacted such bans.  In fact, in each instance where the plan was sued, the attorneys who appeared in court for the defendant plans, always worked for the insurance companies and all of the litigation decisions were made by the insurance companies. Except in a few instances, the plan was involved in name only. 


Ponder that one. ERISA was enacted to protect plan participants (or beneficiaries), and yet it is the insurer of the plan benefits, who was protected from the plan participants by ERISA. Even though that insurer was responsible for paying all benefits under the plan, no legal action could be brought against it for those very benefits. That absurd result was true, even if the insurer was exercising complete control over the administration of the plan as far as the payment of plan benefits is concerned. 


How was it possible?  Like so many other ridiculous aspects of ERISA, this immunity from suit was a judicial creation. It was the byproduct of an interpretation of the statute, which provides that “any money judgment .  .  .  against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this title.” [16]  Arguably, that section was only intended to prohibit ERISA claimants from seeking money damages on the benefit claim that are separate, distinct, or in addition to the benefits provided by “the plan”.  And that ERISA Code section would certainly suggest that an insurer of benefits would be liable in its individual capacity for those benefits that it “insures”.  But not so said the courts.  Any action for benefits had to be brought against “the plan” and any judgment for benefits was enforceable only against “the plan”.


Federal Rule of Civil Procedure, Rule 19 (Joinder of Persons Needed for Just Adjudication) provides that: "A person  .  .  .  shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”


If an employer is small and if “the plan” is funded entirely by an insurance policy issued by an insurer, then by what quirk of logic is that insurer not a party “needed for just adjudication” under Rule 19?   Would not a judgment against “the plan” affect that insurer’s interest? (i.e. impair or impede its ability to protect its interest if not before the Court). How can “complete relief” be provided in its absence?  It is true that “the plan” would have an independent action against the insurer, if it didn’t pay any such post-judgment claim.  But the very purpose of Rule 19 is twofold: (1) provide complete relief to the existing parties and (2) prevent repeated lawsuits on the same subject matter.  Therefore, to hold that the insurer is not a proper party to an ERISA benefits action was illogical.


The 9th Circuit's decision in Everhart was confusing, as Judge Reinhardt’s dissenting opinion demonstrated.  And the implications of that case were complex. This absurdity was eventually corrected by the Ninth Circuit’s decision in Cyr v. Reliance Standard, [17]  overturning Everhart and Ford, and specifically holding that the insurance company could in fact be sued for benefits under ERISA.

If it Quacks Like a Duck, Perhaps It’s a Pig

Yet one more logical irrationality arises in the context of defining what is and what is not an ERISA “plan”.   The establishment of a trust is something that is declared by the settlor to exist. It is an expression of the settlor’s intent and only the settlor’s intent. Aside from certain kinds of “constructive trusts”, which are irrelevant to this discussion, you can’t have a trust, unless a settlor intends for there to be a trust.  Not so, in the crazy world of ERISA.  Even if an employer has no desire or intent to form an ERISA “plan” (i.e. to create a trust), Courts will nevertheless find  such a plan, unless some very stringent requirements are met  and the plan falls under the ERISA “safe harbor” regulation. [18]   Under what are known as the “Dillingham” factors, [19]    it doesn’t take much to form or to find the existence of an ERISA plan, even where no such plan is wanted by anyone, except the insurance company.  In fact, if the employer pays the premiums to cover its employees that will likely be enough to fall outside the safe harbor regulation and then presto you automatically have an ERISA plan. This is true even if the employer never intended there to be an ERISA plan and even if the employees had no understanding whatsoever that they were “participants” in such a plan.  The employees may never be told that they have lost valuable state law rights by merely becoming such participants.  In other words, by simply selling insurance to an employer group, an insurance company can unilaterally establish and maintain a plan on behalf of an employer and insulate itself from liability for state law violations by doing so, without the unsuspecting victims even knowing about it

A Law We’re Stuck With

The problem we face with ERISA is the same problem we face with any bad law that has been on the books for a while (and ERISA is now in its fifth decade of existence). What happens is that society erects a whole series of financial interrelationships, expectations, and dependencies, based upon the bad law.  For example, many might argue that the Social Security statute is a bad law because it’s predicated on a lie.  Contrary to what the politicians say, there is no Social Security “trust fund”.  Just like an ERISA “trust”, it doesn’t exist either and it never did.  It is nothing more than a system of transfer payments that will likely be broke by the time many of us retire.  I’m certain that 90% of today’s young working adults would opt out of the Social Security system in a heartbeat if they were given the choice. And it’s for that very reason that they will likely never be given that choice. They are locked into the system to prevent its immediate collapse.   So it’s a bad law that we’re all stuck with.

At least with Social Security, we victimize ourselves.  Under ERISA, we are victimized by the insurance industry.   ERISA and the case law interpreting it is an enigma – a series of odd paradoxes that will drive anyone seeking to understand it to distraction.  Bear in mind the law was enacted to protect employee benefits, but its result has been to strip away such benefit protections. What we’re left with is a complex, convoluted, self-contradicting body of case law that we can’t get rid of.


    [1]   See, e.g. Egan v. Mutual of Omaha Insurance Co." (1979) 24 Cal.3d 809, 818—819 [169 Cal.Rptr. 691, 620 P.2d 141].

     [2]   See, e.g. Dana M. Muir, "Reflections on ERISA's Fiduciary Provisions: An Integral and integrated part of the Statute", 6 DREXEL. L. REV. 539, 543 (2014). (Available online at: › media › Files › law › Spring2014" and


     [3]   Lang v. LTD Plan, 125 F.3d 794 (9th Cir 1997), Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, 1564 (11th Cir. 1990).


     [4]   Lang, at 798, citing Brown, 898 F.2d at 1567.


     [5]   Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109  S. Ct. 948 (1989).


     [6]   Regula v. Delta Family Care Disability Plan, 266 F.3d 1130 (9th Cir, 2001).


     [7]   “Applying the 'Treating Physician' Rule to ERISA Disability Cases: How Supreme Court Ruling May Affect Plan Sponsors” © Copyright 2003 Thompson Publishing Group Inc., Washington, D.C.


     [8]   Black & Decker Disability Plan v. Nord, 538 US 822 (Supreme Court 2003).


     [9]   Nord v. Black & Decker Disability Plan, 296 F. 3d 823 (9th Cir. 2002).


     [10]   Id. at 833 - 834.


     [11]   Id, at 834.


     [12]   See e.g.:  Monroe v. Pacific Telesis Group, 971 F. Supp. 1310, 1315, (CD Cal, 1997); Donato  v. FMC Corporation, 74 F.3d 894, 901 (8th Cir.,1996);  Pierce  v. American Waterworks Company, Inc., 683 F. Supp. 996, 1001 (WD, Penn., 1988); Isabel v. Hartford, 1999 U.S. Dist. LEXIS 824 (CD, Cal., 1999) at *7-8; Newcomb v. Standard Insurance Co., 187 F.3d 1004   (9th Cir. 1999).


     [13]   Everhart v. Allmerica Financial Life Ins. Co., 275 F.3d 751 (9th Cir. 2001).

     [14]   Ford v. MCI Communications Corporation Health and Welfare Plan, 399 F.3d 1076 (9th Cir. 2005).


     [15]   See, e.g. California Insurance Code §10110.6.


     [16]   29 U.S.C. Section 1132(d) (2).


     [17]   Cyr v. Reliance Standard, 642 F.3d 1202 (9th Cir. 2011).


     [18]   An employee welfare benefit plan does not include a group insurance program in which:  (1) the employer does not make contributions; (2) participation by employees is voluntary; (3) the sole functions of the employer are, without endorsing the program, to permit the insurer to publicize the program and to collect premiums by payroll deduction and forward them to the insurer; and (4) the employer receives no remuneration other than reasonable compensation for administrative services actually rendered in connection with the payroll deduction.  29 CFR. § 2510.3- 1 (j). 


     [19]   Donovan v. Dillingham, 688 F.2d 1367, 1372-73 (11th Cir. 1982) (en banc).

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