Filevine04 May, 2017
Case Hack: Use the Fine Print Against Them
This is a case study about twisting a company’s own restrictive language against it. But before we get to the details…
Let’s talk bananas.
Tropical fruit companies have a history of owning the land and controlling the politics of ‘third-world’ countries (this is the much more cynical meaning of ‘Banana Republic,’ before it meant upscale turtlenecks). When United Fruit Company (which later became Chiquita) owned most of Guatemala in the 50s, they figured they could dodge the tax bill by claiming all that land wasn’t worth much.
They didn’t guess a land-reform president would be elected, who would buy up fallow plots for landless peasants to live and work on – at the price the company itself had claimed it was worth on their tax forms.
The fruit company didn’t see the poetic irony of all of this, and so this story doesn’t end happily. I’ll spare you the details of the violent coup and bloody decades that followed. But I’m troubling your appetite for bananas to illustrate an instructive detail:
Sometimes the very efforts a company uses to give itself an advantage can come back to bite them in the ass. Sometimes the stringent, rigorous language it pens to protect itself can be re-read as a little gift to you. The role of a smart personal injury lawyer is to find these golden moments, and use them. (But be forewarned about doing this against any banana tycoons who own your country).
The case at hand involves kidney failure, catastrophic insurance, and Kimball Jones. I wrote about Kimball in an earlier piece on building a case from the ground up, so it shouldn’t come as any surprise that this latest example is, once again, about his penchant to be a bloodhound for the details, hunting down glimmers of favorable evidence in unlikely places.
Here are the details:
Kimball’s client was a young guy who’d had kidney problems off and on for more than a decade. When his job’s benefits counselor pitched him some catastrophic insurance for injury and illness, the client bought it. Included in the plan was a lump sum payment of $50,000 for kidney failure.
A year later, the kidneys went kaput. This was full-blown kidney failure, forcing the client to go on dialysis and later get a kidney replacement. The only shred of a silver lining in this painful disaster was that catastrophic insurance plan: at least the client could get a little green to help cover the hefty costs of being kidney-less.
But as you might expect, the insurance company flat-out denied any money to the man. They used as their justification that well-known claim-killer, foe to the precariously-insured everywhere: the Pre-Existing Condition. They suggested the man had lied about the sorry state of his kidneys, and couldn’t come crawling to them for help now.
So with neither functioning kidneys nor insurance payments, the man came to Kimball. Kimball says it wasn’t much of a promising case on the surface: his client clearly had kidney problems before buying the policy. Open-and-shut case of the dreaded P-E C, right?
But Kimball kept looking. He dove down into the needling fine-print of the catastrophic policy – and resurfaced with something.
It turns out the insurance company itself had a lot to say about what qualifies as kidney problems. In the interest of being able to deny as many kidney claims as possible, they chiseled down the definition of kidney failure to the narrowest sliver. There are all kinds of kidney problems, they said – but to prove you have end-state kidney failure, and thus are qualified to make an insurance claim, you have to show that both of your kidneys are so thoroughly, irredeemably wiped out that your only options are permanent dialysis or organ transplant.
So what did this mean to the client?
Kimball set out the situation in his appeal letter: they can’t claim his client had a pre-existing condition if his illness wasn’t even something they recognize as a condition. When he signed on to the plan, he didn’t have kidney failure, according to the insurance company’s own definitions. Rather, he came into the policy without the illness that they define, and now he has that illness – therefore the insurance company should do what it is paid to do, and meet the claim.
In the letter, Kimball also took on the way the company was characterizing his client as a liar. They were treating his behavior as though he had tried to sneak one on them by hiding the substandard state of his poor kidneys. But Kimball could show that his client had been transparent about his health every step of the way. And yet they still happily sold him the policy. If they truly believed now he hadn’t been eligible, that meant they were cheerfully taking his money for a service they knew they would never provide. And so one might ask at this impasse: who, in fact, is defrauding whom?
The appeal letter did the trick. Recognizing the way they were hampered and hamstrung by their own stringent definitions, the insurance company cowed and came round. And they paid double: not only did they fork out $50,000 for the kidney failure, but added an extra $50,000 for the kidney transplant, which happened after the first claims were denied and the client had already dropped his coverage.
So when you’re up against a mountain of fine print which seeks to protect an entity from every possible claim against it, put on those reading glasses and settle in. Their very verbosity and stringency might hold the very key to your case.
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