Insurers that issue coverage only for insureds within certain age brackets should review their procedures with respect to whether they might be charging premiums for insureds that are not entitled to coverage under the terms of the policy.  One example of this is where health insurance companies issue policies that allow coverage for dependants only under a certain age.  There are other types of insurance, such as certain kinds of life insurance, that also sometimes have age cutoffs.  Some homeowners’ policies limit coverage for personal property of students who are dependants of the named insureds to a certain maximum age, but that may not have any impact on premiums charged.

In Guschausky v. American Family Life Assurance Company, a putative class action pending in Montana federal court against Aflac, the plaintiff purchased health insurance covering her son through age 23 as long as he was a full-time student.  The son received medical treatment after turning 24 and the claim was denied because he was over 23.  The plaintiff sued for a refund of the premium paid for her son’s coverage, and filed the suit as a putative class action.

The Montana federal court denied the motion to dismiss, concluding that: (1) Aflac’s offer to refund the plaintiff’s premium could not render the case moot, citing case law on “picking off” named plaintiffs; (2) the issue of ERISA preemption could not be decided on the pleadings; and (3) the unjust enrichment claim was not barred by the existence of a written contract because “the policy does not govern the premiums [plaintiff] paid to Aflac for which she allegedly received no benefit in return.”

It is unclear from the opinion whether this was a circumstance where the policy was renewed after the son turned 24, or if the son turned 24 during the policy year but the premium for his coverage was not pro-rated for that year.  It’s almost impossible for an insurer’s procedures to be perfect on this type of issue because the insurer might not have a date of birth for every dependant on every policy, or the date of birth might have been entered incorrectly.  Prorating coverage for the last year of the insured’s eligibility also may be administratively challenging.  But charging premiums for no coverage is something the plaintiffs’ class action bar can seize upon, and is an area that insurers should review carefully. 

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.