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Long Term Care
Paul P. Bolus
Bradley Arant Boult Cummings, LLP
It should be noted, however, that a denial of benefits under an LTCI policy may
expose the insurer to enhanced liability, including consequential damages. As is the
case with health insurance policies, a denial of benefits under an LTCI could prevent a
plaintiff from getting long term care. While, relative to the costs associated with treating
cancer, long term care costs are low, insurers should be aware that their denial of
benefits may result in a court ordering the insurance company to pay the reasonable
costs of a successful plaintiff‟s long term care.
Also relevant in any discussion of damages is the fact that elderly plaintiffs can
often both arouse great sympathy from a jury and be eligible to receive heightened
damages because of their age. The elderly are a vulnerable demographic and the
general public is sensitive to any perceived mistreatment. For example, the New York
Times ran an article by Charles Duhigg on March 26, 2007 entitled “Aged, Frail, and
Denied Care by Their Insurers” that highlighted the plight of people whose claims for
long term care insurance benefits had been denied. As a result of this perception, and
even though the compensatory damages flowing from a denial of benefits in the LTCI
context may be low, the prospect of punitive damage awards can drastically increase an
insurance company‟s exposure to potentially massive verdicts. In California, for
example, senior citizens have a statutory right to seek treble damages for claims
alleging unfair business practices in any context, including insurance. See CAL. CIV.
CODE § 3345; Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp. 2d 1221 (E.D. Cal.
2008) (applying § 3345 against a provider of long term care insurance).
Finally, insurers must be aware that state regulations can often force a policy to
provide more coverage than originally intended by the insurer, creating liability where