New York, NYIn 1999, Susan Arkun, then a tax lawyer with a well-known Manhattan law firm began to suffer from “mal de debarquement,” a chronic condition characterized by nausea, dizziness and visual instability –essentially a permanent form of seasickness. Shortly thereafter, she applied for long-term disability benefits under a policy insured by Unum Group. The denials, re-directions, delay and requests for additional information went on for 16 years before she filed a pro se lawsuit in the Southern District of New York. In September 2017, more than 18 years after the onset of symptoms, the court held that her claim was barred by the statute of limitations. Tarry, Hinder & Delay wins again!
TH&D, by the way, is not a fancy insurance defense firm, but a well-worn tactic that exhausts plaintiffs while it runs out the clock. The details of the run-around will be excruciatingly familiar to Unum LTD plaintiffs.
Arkun’s claim for LTD benefits was first denied in September 1999. The insurer requested additional medical information in February 2001. Arkun underwent additional medical tests and submitted the information. In June 2003, the insurer began paying benefits retroactive to 2000. In July 2004, however, Unum suspended payments, having determined that Arkun was ineligible. She appealed the determination in the same month. In August, Unum closed out her appeal, claiming that she had not sent promised medical information.
In 2008, Unum acknowledged that it had received a proof of loss statement from her with additional information from her physicians. In 2009, Unum advised Arkun that she could pursue her appeal by filing suit under the federal ERISA statute. In 2012, Arkun requested a copy of her former employer’s LTD policy as it had been in effect in 1999, but that had to be forwarded to her from Unum. She ultimately received it and filed her federal lawsuit in 2015.
The lawsuit thereafter went through years of conferences and motion practice. In November 2016, Unum asked that the case be dismissed as time-barred. Arkun never responded. By September 2017, it was all over.
What’s the takeaway, apart from a crushing sense of defeat?
First of all, no one, not even very smart tax lawyers should ever represent themselves in a disability benefits denial lawsuit. Second, as surely as the sun rises in the east, TH&D will appear for the defense. Finally, a famous fake-Latin phrase, “Illegitimi non carborundum,” comes to mind. Don’t let them wear you down.