Adrienne Publicover joined Wilson Elser to build the firm’s Life, Health, Disability and ERISA practice, an area she has focused on throughout her 20-year career. She serves as chair of this practice group, which has grown to include more than 60 attorneys across the firm. She also is a member of Wilson Elser’s Executive Committee.
As issues concerning life, health, disability and ERISA have continued to evolve, and the products and players in the industry have become more sophisticated, Adrienne has continually adapted her practice to meet client needs. She is passionate about her clients, cases and team and committed to meeting the challenges presented by the constantly changing dynamic within the life, health and disability industry. She brings an equal level of passion and commitment to her many management roles at the firm.
Areas of Focus
Life, Health, Disability and ERISA
Adrienne represents life, health and disability insurers in litigation matters throughout California in both state and federal courts. She consults with and represents insurers in matters involving bad faith and punitive damages, ERISA, class actions, agent misconduct, employment matters, and other insurance claims and coverage issues. She has extensive motion, mediation, arbitration, pre-trial and trial experience in state and federal courts throughout California and the Ninth Circuit. She also provides training to national insurance clients regarding California’s Fair Claims Settlement Practices Regulations and other matters affecting life, health and disability insurers.
A regular lecturer on life, health and disability insurance topics, Adrienne has been a featured speaker at various industry events. She is a member of the Association of Life Insurance Counsel, the Tort and Insurance Practice Section of the American Bar Association, and the Life, Health, Disability & ERISA Committee of the Defense Research Institute. She previously served as a vice chair for the ABA/TIPS Health and Disability Insurance Committee and was editor of the Committee’s newsletter. She currently is active in the ABA/TIPS Life Insurance Committee.
2014: The Affordable Care Act Is Alive and Well - Are You Ready?
Compliance with the Affordable Care Act, 2014-2015
February 13, 2014
Employers and insurers need to be in compliance with the 2014 ACA mandates and understand how compliance with the final regulations just issued by the U.S. Department of the Treasury regarding the Employer Shared Responsibility provisions can best be ensured. Many are overwhelmed by the volume and impact of ACA regulations and other issues relative to adherence to the ACA requirements.
ERISA: Insights and Case Discussions
Affordable Care Act Has Potential to Limit a Defendant’s Exposure for Future Medical Costs in New York Personal Injury Litigation
NY: ACA Could Limit Exposure for Future Medical Costs
January 17, 2014
Though no definitive judicial rulings have been issued, allowing plaintiffs to purchase insurance to pay for future medical care without regard to preexisting conditions and failing to allow defendants and insurers a setoff for the substantial savings realized would result in the plaintiff obtaining a double recovery and would represent a substantial injustice.
Where Do We Go From Here?
For The Defense
Temporary Insurance Applications and Agreements: The Impact of Material Misrepresentations in Life Insurance Applications on Coverage
Material Misrepresentations in Life Insurance Applications
November 15, 2013
According to a recent Fourth Circuit Court of Appeals ruling, the enforceability of a temporary insurance application and agreement as part of an application for a life insurance policy may be subject to and conditioned on the information provided in other aspects of the application so long as the material misrepresentation provision unambiguously allows for rescission.
Recent Court Decisions Concerning Unclaimed Life Insurance Benefits Can Assist Insurers in Defending Regulatory Audits and Future Litigation
Defending Regulatory Audits and Future Litigation
November 8, 2013
Life insurers currently subject to unclaimed property audits and market conduct investigations should point to the decisions and reasoning in two recent cases as justification for their position that they acted properly in paying death claims based on the language in their insurance contract and general insurance law principles.
“Savings Clause” Still Threatens ERISA Plan Limitations
“Savings Clause” Still Threatens ERISA Plan Limitations
October 30, 2013
After a decade, two ERISA preemption cases decided by the U.S. Supreme Court still threaten the right of insurers to limit coverage in ERISA-governed plans. A case recently settled in the Ninth Circuit Court of Appeals highlighted the still-unfolding impact of these “savings clause” cases.
As the “NY State of Health” Enters Its Third Week, a Look at the Role of Navigators
Navigators in the “NY State of Health” Marketplace
October 18, 2013
Navigators provide in-person assistance to individuals, families and small businesses interested in applying for health insurance coverage through the New York Marketplace. At present, New York has nearly 500 trained and federally regulated Navigators dispersed throughout the state’s 62 counties, with 48 different languages represented.
ACA Not Enough to Save Penn State’s Employee Wellness Program
Penn State Employee Wellness Program Falls Short
October 9, 2013
Penn State followed the ACA requirements and, so it believed, implemented an effective tool to fight health care inflation. But it lost the public relations battle as opponents of the university’s wellness program claimed that certain aspects of the program violated a number of privacy and civil rights laws.
Evaluating Employer Insurance Coverages to Defend against Claimed Violations of the Affordable Care Act
Defending against Claimed Violations of the ACA
October 4, 2013
Evaluating Employer Insurance Coverages to Defend against Claimed Violations of the Affordable Care Act
Employers should review their professional lines insurance policies along with outside benefits consultants and attorneys to determine whether additional or different coverage may be appropriate to guard against the new ACA risks. Additionally, employers should become educated as to any new insurance products that may be available or in development to address ACA liabilities.
Administration Delays Launch of Federally Facilitated Small Business Health Insurance Exchanges
35 Small Business Health Insurance Exchanges Delayed
September 27, 2013
Small businesses will be required to wait until November to complete their online purchases of health coverage at federally facilitated health insurance exchanges. Paper applications will be manually processed on schedule, beginning October 1, 2013.
CA Supreme Court to Decide If Insurance Companies Can Be Sued under the Unfair Competition Law
CA: Can Insurance Companies Be Sued under the UCL?
May 23, 2013
On May 8, the Supreme Court of California heard oral arguments in a case that could decide whether an insured can bring a cause of action against its insurer under the Unfair Competition Law and if previous case law bars such an action.
New York Imposes New Filing Requirements for Submission of Universal Life Policies with Secondary Guarantees
NY Re: Universal Life Policies with Secondary Guarantees
March 18, 2013
Revisions to New York Insurance Regulation 147 will require insurers to provide two certifications to the Department of Financial Services in any submission of a universal life insurance policy form having secondary guarantees.
NY Revising Policy Form Filing Process: Random Forms Filed under Certification Procedure to Be Subject to Prior Review
NY Revising Certified Policy Form Filing Process
March 15, 2013
The New York Department of Financial Services issued a bulletin on March 12, 2013, announcing that it is developing a new policy form approval process that will involve the random selection of certain filings submitted under Circular Letter No. 6 (2004) Certification Procedure for prior review.
Ninth Circuit Refuses to Recognize ERISA Plan’s Right to Recover Overpayment of LTD Benefits
Ninth Circuit on Recovery of LTD Benefit Overpayment
February 26, 2013
The U.S. Supreme Court’s recent decision not to hear a petition for a writ of certiorari in a case in which the Ninth Circuit refused to recognize an ERISA plan’s right to recover an overpayment of long-term disability benefits consistent with the terms of the applicable policy could cast serious doubts on a carrier’s ability to recover such overpayments, at least in certain circumstances, particularly in the Ninth Circuit.
Update on NY Legislative and Regulatory Developments Regarding Unclaimed Life Insurance Benefits
NY Update: Unclaimed Life Insurance Benefits
February 22, 2013
New York AB 9845, signed by Governor Cuomo on December 17, 2012, becomes effective on June 15, 2013. As insurers doing business in New York develop compliance plans to address the requirements of the new law, the New York State Assembly passed a bill, now under consideration by the Senate, amending such law in certain respects. Insurers need to be prepared to revise their compliance plans to adapt to the modifications found in the amendment, if passed, and to implement any other operational changes that may be necessary to implement such plans.
Certain “Fixed Indemnity” Insurance Not Excepted Benefit under Affordable Care Act; Additional Rules Imposed by New York on “Indemnity” Policies
Fed and New York on Indemnity Insurance
February 14, 2013
Insurers writing “fixed indemnity” insurance in New York must be aware not only of the new federal standard but also the position of the New York Department of Financial Services’ regarding this type of insurance.
Certain Out-of-State Group Contracts Deemed to Be Delivered in New York
New York’s Extraterritorial Life Insurance Laws
February 12, 2013
Failure to comply with the provisions of New York Insurance Law section 3201(b)(1) can result in having to unwind existing group contracts or benefits, refund premiums and/or be subject to regulatory fines or penalties.
Critical Issues in the Ninth Circuit Concerning ERISA Bench Trials and the Fiduciary Exception
Administration of Disability Claims under ERISA
February 11, 2013
The Ninth Circuit cited two significant issues insurance companies need to consider in the administration of disability claims governed by ERISA. The court endorsed bench trials as a way for district courts to determine the factual issue of the impact of a conflict of interest on the claim administrator’s application of discretion. The court also applied the fiduciary exception to the attorney-client privilege to compel the production of attorney communications that were created after the insured’s attorney contacted an insurer.
Proposed Amendment to NY Insurance Regulations Continues Trend to Reduce or Eliminate Posting of Collateral
NYDFS Proposed Amendment Aligns with NAIC Model
January 23, 2013
The New York Department of Financial Services has proposed the Eleventh Amendment to New York Insurance Regulations 17, 20 and 20-A governing the circumstances under which a ceding insurer can take credit on its balance sheet for claims ceded to unauthorized insurers. One important modification involves the institution of a reinsurer certification process.
New York Department of Financial Services Proposes Third Amendment to Regulation Governing Holding Companies
Third Amendment to NY Insurance Regulation 52
January 7, 2013
Changes to the NAIC Insurance Holding Company System Regulatory Act and Model Regulation seek to increase regulatory oversight and examination of insurer groups and to assess overall “enterprise risk.” It is expected that states seeking accreditation by the National Association of Insurance Commissioners must have enacted either the Model Act or a “substantially similar” version of it, such as New York’s proposed third amendment.
Comprehensive Analysis of the Ninth Circuit’s Application of the Standards of Review under ERISA
Application of the Standards of Review under ERISA
This monograph provides a comprehensive discussion of the application of the abuse of discretion and de novo standards of review for courts within the Ninth Circuit in matters governed by the Employee Retirement Income Security Act of 1974. In focusing on the opinions issued by district courts, the monograph gives insight into the type of evidence and the arguments that generally succeed, as well as the arguments that should be avoided.
Writing Accidental Death and Dismemberment Insurance in New York in Light of the Affordable Care Act
NY Department of Financial Services Develops New Rules on Writing AD&D Insurance
December 7, 2012
New York’s Department of Financial Services recently developed rules concerning the filing and approval of AD&D products containing limited medical benefits. They require that certain disclosures be made to the insured and that the insured have underlying medical coverage in force. As a result, group AD&D policies administered by the policyholder or other third-party administrator may require significant changes to the administrative procedures of these entities.
Latest Regulatory Developments Concerning Unclaimed Life Insurance Benefits
Unclaimed Life Insurance Benefits
November 27, 2012
Under varying standards, life insurers need to be vigilant in monitoring the latest requirements being imposed through multistate settlements as well as through new legislative or regulatory measures. “Best practice” procedures will closely encompass rules being imposed by regulators that can be applied on a nationwide basis.
Allianz Multi-state Regulatory Settlement Reinforces Need for Compliance with Annuity Suitability and Senior Designations Requirements
Insurers compliance with state regulations concerning annuity suitability and senior certifications
November 7, 2012
The regulatory settlement agreement announced by the Florida Office of Insurance Regulation on September 4, 2012, involving Allianz Life Insurance Company of North America reemphasizes the need for insurers to be diligent about compliance with state regulations concerning annuity suitability and the use of senior certifications.
NAIC Adopts Revisions to Actuarial Guideline 38
NAIC Adopts Revisions to Actuarial Guideline 38
October 18, 2012
Effective September 12, 2012, the National Association of Insurance Commissioners has amended Actuarial Guideline 38 in an effort to address reserving deficiencies in universal life products that employ secondary guarantees.
NAIC Annuity Disclosure Model Regulation: Preparing for Compliance
NAIC Annuity Disclosure Model Regulation
October 8, 2012
The NAIC amended its Annuity Disclosure Model Regulation last fall and it is anticipated that states will begin to propose legislation to adopt these amendments in their upcoming legislative sessions. It is important for insurers to understand these new disclosure requirements before states begin to enact new laws.
NY Department of Financial Services Investigates Life Insurance Industry’s Use of Captive Reinsurers
Life Insurance Industry’s Use of Captive Reinsurers
September 10, 2012
The New York Department of Financial Services is seeking information from New York domestic life insurance companies concerning their use, and use by other companies within their holding company system, of affiliated captives or off-shore entities for reinsurance purposes.
New York Department of Financial Services Issues Emergency Regulation Governing Unclaimed Life Insurance Benefits and Policy Identification
May 18, 2012 Effective immediately, New York Insurance Regulation 200 requires that within 150 days of March 14, 2012, New York domestic and foreign life insurers authorized in New York must implement new compliance procedures regarding unclaimed benefits.
Fraud Rescission in Pennsylvania: No More Excuses
May 7, 2012
A Pennsylvania District Court and the Third Circuit concur that an explanation for failing to provide accurate answers on an application for insurance coverage does not prevent a finding of fraud when the undisputed evidence establishes that the applicant chose to provide an inaccurate response.
Life, Health, Disability & ERISA Newsletter
Insurance Fraud & Group Policy Limitations
This Life, Health, Disability & ERISA Newsletter discusses insurance fraud, important ERISA holdings, new California law on group policy, and more.
Eighth Circuit concludes that decision in Abram v. Cargill, Inc. does not apply under new ERISA regulations
April 2009 In Midgett v. Washington Group Int l Long Term Disability Plan, __ F.3d __, 2009 WL 996682 (8th Cir. April 15, 2009), the Eighth Circuit considered the amended ERISA claim regulations in deciding whether a claimant received a full and fair review of the denial of benefits. The court ultimately agreed with the Tenth and Eleventh Circuits and concluded that a plan is under no obligation to provide a claimant with copies of reports obtained during the appeal so they may comment on them prior to a final decision.
Third Circuit provides useful interpretation of New Jersey regulation on discretionary clauses in insurance contracts
April 2009 In Evans v. Employee Benefit Plan, 2009 U.S. App. LEXIS 3426, 2209 WL 418628 (3d Cir. N.J. Feb. 20, 2009), the Third Circuit Court of Appeals affirmed the New Jersey District Court’s decision that the insurance carrier did not abuse its discretion in denying the claimant’s long term disability claim. This decision should prove useful in cases in which a claimant under a life, health or disability policy seeks to use New Jersey’s regulatory ban on so-called discretionary clauses in such policies.
Ninth Circuit provides new standard for reviewing (some) conflict of interest evidence on ERISA motion for summary judgment
The Ninth Circuit, inNolan v. Heald College , et al.,9th Circuit Docket No. 07-15679 (January 13, 2009), revisited the standard a U.S. District Court should apply when reviewing evidence of a conflict of interest on a motion for summary judgment in ERISA litigation. More specifically, the court addressed the standard for evidence submitted from outside the administrative record in a matter being reviewed under the abuse of discretion standard.
“Developments in Life & Disability Insurance Law,” presented at AIG/American General 2006 Law Conference, March 2006.
“A Box of Rain: Current Trends in Suits against Life Insurers,” presented at DRI Life, Health, Disability and ERISA Claims Seminar, April 2004.
“Death Don’t Have No Mercy: Life Insurance Case Law Update,” presented at the DRI Life, Health, Disability and ERISA Claims Seminar, April 2004.
“Overcoming California’s Tax Return Privilege When Defending Claims to Disability Benefits,” DRI Life, Health and Disability News, Spring 2003.
Business Insurance Quotes Adrienne Publicover on Open Enrollment and Health Care Reform Compliance
October 26, 2014
Law360 Features Adrienne Publicover in its Female Powerbrokers Q&A
January 10, 2014
Law360 Publishes Article on CA Case that Could Greatly Impact Insurance Companies
June 5, 2013
Adrienne Publicover Co-chairs Fundraiser for CHILDREN AT RISK Featuring Headliner Jay Leno
February 1, 2012
Adrienne Publicover is co-chairing the CHILDREN AT RISK Gala featuring comedian Jay Leno.
Wilson Elser Holds Cal Regs Seminars that Captivate Audience of 300
November 10, 2011 Adrienne Publicover, Michelle Press and William Enger, in conjunction with the LMA, hosted two California Claims Handling Seminars in Lloyd’s Old Library.
Wilson Elser Wins ERISA Case in Appellate Court, Third Circuit
September 20, 2011
The appellate court vacated the district court’s ruling that the defendant, a global insurance company acting as a third-party administrator of company’s long-term disability plan (under ERISA), arbitrarily and capriciously denied long-term disability benefits to the plaintiff.
Wilson Elser’s Life, Health, Disability and ERISA Practice Featured in Lawyer Monthly
August 16, 2011 Wilson Elser’s Life, Health, Disability and ERISA practice was featured in the May 2011 issue of Lawyer Monthly.
Adrienne C. Publicover to give update on life insurance law at Western Claim Conference in June in California
April 22, 2009 Adrienne C. Publicover (Partner-San Francisco) will be a speaker at the Western Claim Conference to be conducted in Indian Wells, CA, on June 14-16. She will give a talk entitled Life Insurance Case Law Update-the Issues and Trends.
In-House Roundtable: Counsel and Claims Professional Insights on New Emerging Issues in Disability Insurance Claims
January 22, 2015
American Conference Institute’s 17th National Advance Forum on Litigating Disability Insurance Claims
Life Case Law Update: The Next Dimension
February 23-25, 2014
Eastern Claims Conference
In-House Roundtable: Counsel and Claims Professional Insights on New & Emerging Issues in Disability Insurance Claims
January 23, 2014
American Conference Institute 16th National Advanced Forum on Litigating Disability Insurance Claims
Litigating Disability Claims, ACI Conference, 2012
Life Insurance Case Law Update, DRI Life, Health, Disability & ERISA Conference, 2012
Life Insurance Case Law Update, Eastern Claims Conference, 2012
Fair Claims Settlement Practices Regulations training, London Market Association, 2012
Life Insurance Case Law Update, Eastern Claims Conference, 2011
Life Insurance Case Law Update, Western Claims Conference, 2011
ACI ERISA Litigation Conference, 2011
Fair Claims Settlement Practices and Anti-Fraud Regulations, various clients training, 2011
Fair Claims Settlement Practices Regulations, London Market Association, 2011
Life Insurance Case Law Update, Eastern Claims Conference, 2010
Life Insurance Case Law Update, Western Claims Conference, 2010
Fair Claims Settlement Practices and Anti-Fraud Regulations, various clients training, 2010
“Life Insurance Case Law Update,” Western Claims Conference, June 2010, June 2009.
“Life Insurance Case Law Update,” Eastern Claims Conference, March 2010, March 2009.
“Contestable Claims Investigations,” Western Claims Conference, June 2008.
“Recent Developments in Life and Disability Law,” Principal Financial, March 2008.
“Contestable Claims Investigations,” Eastern Claims Conference, February 2008.
“What’s New in Life Claims Case Law?,” Western Claims Conference, June 2007.
“What’s New in Life Claims Case Law?,” Eastern Claims Conference, February 2007.
“Beyond All Limits: ECO/XPL and How it Impacts Primary, Excess and Reinsurance Contracts,” PLUS, November 2007.
AIG/American General 2007 Law Conference, San Antonio, TX, April 2006.
In-house training, The Principal Financial Group, Des Moines, IA, May 2006.
Western Claims Conference, Indian Wells, CA, June 2006.
ABA/TIPS, Midwinter Meeting, Phoenix, AZ, January 2005.
Eastern Claims Conference, New York, NY, February 2005.
AIG/American General 2005 Law Conference, South Shore Harbor, TX, March 2005.
Western Claims Conference, Indian Wells, CA, June 2005.
Eastern Claims Conference, New York, NY, March 2004.
DRI Life, Health, Disability and ERISA Claims Seminar, Washington, DC, April 2004.
“California Fair Claims Settlement Practices,” training for various clients, 2004, 2005, 2006.