In this video Marc Whitehead, Board Certified Long Term Disability Insurance Lawyer, discuses the five things courts look at in awarding Attorneys Fees.
If you have been paying attention to the updates on our long term disability blog, you already know that it is extremely difficult to convince judges to force insurers to pay your attorneys fees. You also know that even if you are awarded fees the award may only partially cover what you owe for the trial and legally can’t include anything you owe for using a lawyer through the administrative appeals process. The whole things blatantly favors insurance companies and we are long over due for a change in the law. But in order for that to happen enough people have to complain to congress until that day we have to live with the current rules and that means understanding how they work. Including understanding the Five Factors Test that the courts use when determining whether they want to award Attorneys Fees or not.
What is the Five Factors Test? These are the Factors that a district court is required to consider when looking at whether or not to award a claimant Attorneys Fees.
The Factors Include:
1- To what degree your insurer has acted in bad faith? Where they blatantly violating the rules to keep from paying you or just bending them a little bit?
2- Whether or not they can afford to pay. Unless your insurance company is in danger of going out of business this is rarely an issue when claimants win. However, if you lose the case and your insurer tries to demand that you pay their legal fees this is something nice to have on your side.
3- Whether the award will act as a deterrent. Essentially this fact wants to know if forcing your insurer to pay your legal fees will make them think twice about violating laws again.
4- Are you willing to share the award with other plan beneficiaries. This one is fairly complicated. It really only applies if you are filing a joint lawsuit.
5- The merits of each parties positions. Is this a case where your insurer really had no basis for denying your claim or could a reasonable person understand their position?
Neither side has to satisfy all of these factors to win attorneys fees under the law but seeing them laid out like this really does make it easier to understand while having your fees paid is so tough.
