Eve-Lynn Gisonni Named Fellow of Litigation Counsel Of America
New York attorney Eve-Lynn Gisonni, Esq, of the law firm Gisonni Law Firm, P.C. has been selected as a Fellow of the Litigation Counsel of America. Demonstrating time and again that one person can make great differences, Eve-Lynn Gisonni has spent her career championing the rights of individuals under insurance contracts. She has made inroads in the fields of long term disability insurance law and life insurance law through her characteristic application of cutting-edge arguments to novel issues of insurance contract interpretation. Eve-Lynn is seasoned in all aspects of federal and state practice, including disability and life insurance matters governed by ERISA.
The LCA is a trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellowship in the LCA is highly selective and by invitation only. Fellows are selected based upon excellence and accomplishment in litigation, both at the trial and appellate levels, and superior ethical reputation. The LCA is aggressively diverse in its composition. Established as a trial and appellate lawyer honorary society reflecting the American Bar in the twenty-first century, the LCA represents the best in law among its membership. The number of Fellowships has been kept at an exclusive limit by design, allowing qualifications, diversity and inclusion to align effectively, with recognition of excellence in litigation across all segments of the bar. Fellows are generally at the partner or shareholder level, or are independent practitioners with recognized experience and accomplishment. In addition, the LCA is dedicated to promoting superior advocacy, professionalism and ethical standards among its Fellows.
New York’s Highest Court Rules in Favor of Our Client Who Suffers From Pre-Existing Condition
In a landmark decision, the N.Y. Court of Appeals interpreted a New York Insurance statute against insurance giant MetLife and in favor of our client, Mitchell Benesowitz. The Court ruled that group disability insurance providers could not withhold disability benefits for pre-existing conditions for greater than 12 months. Prior to this ruling, MetLife and other insurance companies completely barred benefits for employees who became disabled from a pre-existing condition in the first 12 months of employment.
In Mr. Benesowitz’s case, MetLife included language in his policy that violated New York law governing pre-existing conditions under group disability policies. The illegal language allowed MetLife to deny all of Mr. Benesowitz’s long term disability benefits even though he suffers from severe kidney disease.
Even after we won in the N.Y. Court of Appeals, MetLife refused to pay Mr. Benesowitz. So we went back to the trial judge and asked him to order MetLife to pay Mr. Benesowitz’s benefits and to order MetLife to pay our attorneys’ fees.
In his decision dated July 9, 2009, Judge Platt shut down MetLife’s attempt to relitigate the entire case from the beginning. The Court also chastised MetLife for failing in its obligations as a fiduciary under ERISA. In awarding attorneys’ fees, Judge Platt ruled that MetLife did not meet its special standard of care to discharge its duties concerning claims processing solely in the interests of beneficiaries, like Mr. Benesowitz.
In a later proceeding, Magistrate Judge James Orenstein heard oral argument from MetLife who opposed our request for attorneys’ fees. MetLife also attempted to argue that our firm spent too much time fighting the 5-year long litigation that ironically MetLife continued to perpetuate. We suggested that in order to determine the reasonableness of our request for fees that MetLife show the Court all of its billing records for the past 5 years. Over the course of that time, MetLife had hired three firms, including an appellate specialist from Skadden Arps, as well as collaborating with several other firms representing amici curiae advancing the insurance lobby’s interests against us. Judge Orenstein ordered MetLife’s counsel to return to court with all of their billing records.
Shortly thereafter, and prior to the next court date, MetLife paid Mr. Benesowitz’s attorneys’ fees and pre-judgment interest.
Benesowitz v. Metropolitan Life Insurance Company, 2009 U.S. Dist. LEXIS 64269 (E.D.N.Y. 2009), 514 F.3d 174 (2d Cir. 2007), 8 N.Y.3d 661 (2007)
We Thwarted Prudential’s Attempt to Invalidate $500,000 Life Insurance Policy
Our client, a widower with three young children and beneficiary under a group life insurance contract, made claim for life insurance proceeds with The Prudential Life Insurance Company of America. For months, Prudential dragged its feet, demanded medical records of his deceased wife and would not give him any information why it had not paid. Then Prudential told him the funds were placed in an investment account that he could access. When he attempted to access the account, Prudential pulled the rug out from under him and told him there was no funding and his claim was denied.
That was not bad enough. After our firm got involved, the insurance company continued the same foot-dragging tactics coupled with a “no information” campaign. Shortly before we started a lawsuit against Prudential, with no warning and no discussion, their counsel filed a lawsuit against our client.
We fought a long litigation battle against Prudential which included a myriad of issues relating to the propriety of electronic life insurance applications, what constitutes delivery of a life insurance policy under the law and Prudential’s delay in returning the insurance premiums under the contract. Judge Spatt issued his decision and denied Prudential’s motion to win the case without a trial. Shortly thereafter, the case was resolved.
The Prudential Life Insurance Company of America v. Dukoff, 674 F. Supp. 2d 401 (E.D.N.Y. 2009)
Court Orders Discovery in ERISA Action
In a case Eve-Lynn handled, which is frequently relied upon by other ERISA practitioners, Allison v. UNUM Life Insurance Company, Magistrate Judge Wall ordered UNUM to produce discovery shedding light on UNUM’s conflict of interest as both a payer of benefits and decision maker on the claim. He agreed with our request to obtain from the insurance magnate claim and appeal procedures and criteria, as well as who was involved in deciding her claim and appeal. He also authorized us to depose an Insurer’s Medical Examiner hired by UNUM who examined our client.
In ERISA cases, many courts are loathe to allow discovery of any kind. Significantly, since the Allison decision was issued, many Courts have looked to its principles for guidance in allowing discovery issues in ERISA cases.
Allison v. UNUM Life Insurance Company, et al., 2005 U.S. Dist. LEXIS 3465 (E.D.N.Y. 2005)
“Any Occupation” Disability Definition Linked to Person’s Living Wage
My former firm represented Patrick Mossa, a hard-working steamfitter who fell several stories on the job and severely injured his knees.
The Court interpreted the “any occupation” definition of disability in his Provident disability policy and stated that an ordinary person purchasing a disability policy would expect to be insured for his inability to perform a living wage and not just a job paying wage. The Court forced the insurance company to assess Mr. Mossa’s salary history as well as the salaries of other occupations that the insurance company claimed he could perform in determining whether he could perform another occupation based on his education, training and experience.
This case of first impression is significant because it prevents insurance companies from changing the bargain they agreed to when they sold the insured his policy. Often insurance companies attempt to pigeon hole an insured into an occupation where his salary is less than half of what he was earning before disability in an attempt to avoid paying benefits. The Court agreed that such an attempt was contrary to the whole reason people pay for disability insurance.
Mossa v. Provident Life and Casualty Insurance Company, 36 F. Supp. 2d 524 (E.D.N.Y. 1999)
Arkansas Orthopedic Surgeon Wins Lifetime Benefits Against UNUM
My former firm represented an orthopedic surgeon who suffered permanent vision loss as a result of undergoing two surgical procedures to one of his eyes while under the same general anesthesia. He made claim under his disability insurance policies, and UNUM honored his claim until his 65th birthday. Disability payments under his policies were payable until age 65 if the disability is caused by sickness and for his lifetime if the disability is caused by accidental bodily injury. The amount potentially recoverable under the policies exceeded several million dollars.
I conducted extensive discovery including depositions of UNUM’s ophthalmologic consultant. Thereafter, I successfully argued in a motion for summary judgment on stipulated facts that Dr. Kolb’s vision loss from failed surgical procedures was as a result of accidental bodily injury as that term is defined in his insurance policies. I conducted an exhaustive search of case law precedent in each federal and state court across the country. The court agreed with my position and rendered judgment in Dr. Kolb’s favor. UNUM appealed to the Eighth Circuit Court of Appeals and lost.
Kolb v. The Paul Revere Life Insurance Company, 2002 U.S. Dist. LEXIS 24982, (E.D. Ark., West. Div. 2002), aff’d 355 F.3d 1132 (8th Cir. 2004)
Court Deems Pain an Independent Basis to Receive Disability Benefits
Relying on Social Security Disability precedent, the Second Circuit Court of Appeals deemed a disabled person’s pain an independent basis to support a disability claim. Since this case was decided, numerous Courts across the country and disability practitioners have relied on this doctrine.
My former firm represented Cliff Connors. Connecticut General Insurance Company paid Mr. Connors his disability benefits for several years as a result of sustaining serious lower back injuries from a fall while working as a door-to-door cable television salesperson. The insurance company terminated his benefit payments based on its erroneous belief that he could perform sedentary or light work.
The case was governed by the Employee Retirement Income Security Act (“ERISA), and Judge Martin presided over a bench trial on paper. I submitted a brief in support of Mr. Connors, but Judge Martin rendered judgment in favor of the insurance company.
My firm appealed the case to the Second Circuit Court of Appeals. The Appellate Court vacated in part, affirmed in part, and remanded the case back to Judge Martin finding that he committed several factual and legal errors, including the Court’s refusal to consider Mr. Connors’ documented unrelenting back pain an independent basis for disability. Ultimately, the trial court judge granted judgment in our favor for one hundred percent of attorneys’ fees requested.
Connors v. Connecticut General Life Insurance Company, 272 F.3d 127 (2d Cir. 2001)
Court Orders Advisory Jury in an ERISA Disability Case
My former firm represented David Searles, who was disabled from performing his occupational duties of Chief Operating Officer of a large, successful company. The insurance company disputed that he was disabled from a physical disability and argued that he was only entitled to a shortened period of benefit payments under a mental/nervous limitation. The insurance company further argued that ERISA preempted his breach of contract claim.
The parties conducted extensive discovery, and the case culminated in cross-motions for summary judgment. First Fortis argued that ERISA applied. Mr. Searles argued that his claim fell within the safe harbor provided for in the implementing regulations under ERISA. The court determined that there were questions of fact involved and that the court would preside over a jury trial on the issue of whether ERISA preempted his claims and if so, the judge would use the jury in an advisory capacity on the issue of disability.
This case has important precedential implications because the court pronounced the Second Circuit standard for determining when a claim is preempted by ERISA, and the court authorized a quasi-jury trial even though the Second Circuit has stated that litigants are not entitled to a jury trial in an ERISA action.
Searles v. First Fortis Insurance Company, 98 F. Supp. 2d 456 (E.D.N.Y. 2000)