Administrative Exhaustion, Futility and the Last Refuge of the Scoundrel

By | Boston ERISA Law Blog | September 10, 2014

When it comes to claims of futility as an explanation for failing to exhaust administrative remedies in pursuing benefits under an ERISA governed plan, I have long summed up my feelings with a pithy rephrasing of Samuel Johnson’s famous line about patriotism, which I have turned into the somewhat flippant comment that “futility is the last refuge of the participant who is not entitled to benefits.”

Sixth Circuit Says Misappropriation of Customer List Not Insured Under Advertising Injury Liability Coverage

Sixth Circuit Says Misappropriation of Customer List Not Insured Under Advertising Injury Liability Coverage

The Sixth Circuit Court of Appeals recently ruled that Liberty Corporate Capital did not have to defend a firearms retailer in a lawsuit alleging that the retailer improperly obtained and used its competitor’s customer list to send e-mail blasts about its own products.

Fourth Circuit Holds That Insurer Waived Right to Rescind Commercial Property Policy

Fourth Circuit Holds That Insurer Waived Right to Rescind Commercial Property Policy

A powerful weapon in any policyholder’s arsenal is the potential to argue that an insurer waived its right to rescind a policy or deny coverage.  Successfully arguing waiver may allow a policyholder to obtain coverage even where it is alleged to have made material misrepresentations in the policy application or failed to meet a condition precedent.

Second Circuit Confirms Prejudice Not Necessary for Dismissal of Reinsurance Claim Under Illinois Law

In AIU Insurance Co. v. TIG Insurance Co., 2014 U.S. App. LEXIS 16513 (2d Cir. Aug. 27, 2014), the Second Circuit Court of Appeals applied Illinois law and affirmed a lower court’s dismissal of a reinsurance claim for reasons of late notice alone, declaring that the reinsurer was not required to demonstrate prejudice as a result of the delay.