Misty Murray

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Misty Murray is a senior associate in Barger & Wolen’s Los Angeles office, and has been with the firm since 1998. Ms. Murray handles a diverse range of business and insurance litigation issues in the state and federal courts. Ms. Murray has extensive experience counseling and defending insurance companies in the areas of unfair competition, class actions, insurance bad faith, managed care, insurance coverage, ERISA, agent and broker liability, and FINRA (formerly called NASD) disputes. Ms. Murray has also handled numerous appeals at the state and federal level.
During her tenure at Barger & Wolen, Ms. Murray has litigated hundreds of cases and her extensive experience enables her to provide exceptional legal representation and counsel in both pre- and post-litigation matters.
Ms. Murray is admitted to practice before all California state courts as well as the United States District Court for the Central, Southern, Eastern and Northern Districts of California and the Ninth Circuit Court of Appeals.
Ms. Murray’s representative matters include:

  • Successfully defending life, health and disability insurers from bad faith allegations and claims for punitive damages.
  • Successfully defending insurance companies and welfare benefit plans in claims for ERISA benefits and breach of fiduciary duties under ERISA in individual cases and class actions.
  • Defeating class certification on behalf of life, health and disability carriers sued for unfair business practices and other violations of California law.

Articles By This Author

Supreme Court Considers Accrual of Statute of Limitations in ERISA LTD Plan

On April 15, 2013, the United States Supreme Court agreed to review a case involving the question of when the statute of limitations accrues for judicial review of an adverse benefits determination under an ERISA long-term disability plan.  

On November 18, 2010, Julie Heimeshoff (“Heimeshoff”) filed suit against Hartford Life & Accident Insurance Company (“Hartford”) and her former employer, Walmart Inc., after Hartford denied her claim for benefits under a long-term disability plan established by Walmart (the “Plan”). See Heimeshoff v. Hartford Life & Accid. Ins. Co, et al., 2012 U.S. Dist. LEXIS 6882 (D. Conn. 2012).

Hartford filed a motion to dismiss on the ground that Heimeshoff’s claim was barred by the three-year contractual limitations period in the Plan, which provided as follows: “Legal action cannot be taken against The Hartford . . . 3 years after the time written proof of loss is required to be furnished according to the terms of the policy.” As to proof of loss, the Plan required that “[w]ritten proof of loss must be sent to The Hartford within 90 days after the start of the period for which The Hartford owes payment.”  

The district court granted Hartford’s motion to dismiss because Heimeshoff filed her complaint more than three years after proof of loss was required to be furnished under the Plan. In doing so, the district court rejected Heimeshoff’s argument that the Plan provision was ambiguous and that the limitations period did not begin to run until the final denial latter. The Court also rejected her argument that Hartford could not rely on the limitations period because it failed to advise Heimeshoff of the limitations period in the denial letter.  

The Court of Appeal for the Second Circuit affirmed, holding that, under Connecticut law, parties to an insurance contract may shorten the limitations period and that the “policy language is unambiguous and it does not offend the statute to have the limitations period begin to run before the claim accrues.” 

Heimeshoff filed a petition for writ of certiorari, which the Supreme Court granted on April 15, 2012, as to the following question: “When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?” Heimeshoff v. Hartford Life & Accid. Ins. Co, et al., Case No. 12-729. 

The Supreme Court’s decision will be important because ERISA does not provide a limitations period for actions for plan benefits under 29 U.S.C. § 1132. As a result, federal courts apply the applicable state statute of limitations period that is most analogous or, if permitted, federal courts will apply the contractual limitations period, which may be shorter than the state statute. Thus, the Court’s decision will provide uniformity on the accrual of benefit claims under contractual limitations periods in ERISA group policies.


Insurers That Fund ERISA Plans and Administer Claims Are Proper Defendants in Lawsuits for Benefits

Martin E. Rosen and Misty A. Murray

In Cyr v. Reliance Standard Ins. Co., 2011 U.S. App. LEXIS 12601  (9th Cir. 2011), an en banc panel of the Ninth Circuit Court of Appeals was presented with the issue of whether ERISA authorizes actions to recover plan benefits against a third-party insurer that funds the plan and administers claims for the plan. The specific statute involved, 29 U.S.C. § 1132(a)(1)(B), provides:

A civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.

Prior Ninth Circuit precedent held that such suits may only be brought against the plan, or in some cases the plan administrator, but that an ERISA participant or beneficiary could not sue a plan’s insurer for benefits. See, e.g., Ford v. MCI Communications Corp. Health and Welfare Plan, 399 F.3d 1076, 108 (9th Cir. 2005); Everhart v. Allmerica Financial Life Ins. Co., 275 F.3d 751, 754 (9th Cir. 2001); Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir. 1985).

In Cyr, the Ninth Circuit overruled these prior decisions. 

The Court reasoned that in Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), the Supreme Court had addressed the question of who can be sued under a different subsection of Section 1132(a), specifically subsection 1132(a)(3). Section 1132(a)(3) permits civil actions:

by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.”  

The en banc panel noted that the Harris Court “rejected the suggestion that there was a limitation contained within § 1132(a)(3) itself on who could be a proper defendant in a lawsuit under that subsection,” reasoning as follows:

[Section 1132(a)(3)] makes no mention at all of which parties may be proper defendants--the focus, instead, is on redressing the "act or practice which violates any provision of [ERISA Title I]." 29 U.S.C. § 1132(a)(3) (emphasis added).

Other provisions of ERISA, by contrast, do expressly address who may be a defendant. See, e.g., § 409(a), 29 U.S.C. § 1109(a) (stating that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable" (emphasis added)); § 502(l), 29 U.S.C. § 1132(l) (authorizing imposition of civil penalties only against a "fiduciary" who violates part 4 of Title I or "any other person" who knowingly participates in such a violation). And § 502(a) itself demonstrates Congress' care in delineating the universe of plaintiffs who may bring certain civil actions. See, e.g., §502(a)(3), 29 U.S.C. § 1132(a)(3) ("A civil action may be brought . . . by a participant, beneficiary, or fiduciary . . ." (emphasis added)); ("A civil action may be brought . . . by the Secretary . . ." [Harris, supra at 246-47; emphasis added]

Thus, the Ninth Circuit saw “no reason to read a limitation into § 1132(a)(1)(B) that the Supreme Court did not perceive in § 1132(a)(3).” 

The Ninth Circuit further noted that Section 1132(d)(2) also supported its conclusion. Section 1132(d)(2) provides that:

[a]ny money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter.” [Emphasis added.] 

The Ninth Circuit reasoned that the “‘unless’ clause [of Section 132(d)(2)] necessarily indicates that parties other than plans can be sued for money damages under other provisions of ERISA, such as § 1132(a)(1)(B), as long as that party's individual liability is established.”

The Ninth Circuit’s ruling in Cyr is not likely to have any significant impact. That is because often times third-party insurers that fund ERISA plans and administer claims were named as defendants in lawsuits involving disputes over ERISA benefits, notwithstanding prior case law. And even when the plans themselves were named as defendants, the insurers would often defend the litigation.

Federal Mental Health Parity Interim Rules Published

Two weeks ago, federal agencies published the interim final rules amending the mental health parity provisions, which appear in the Federal Register at Volume 75, Number 21, page 5409 (the “Rules”). The Rules are intended to implement the Wellstone-Domenici Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”).  A brief summary of some highlights of the Rules follows.

Among other things, the Rules prohibit large group health plans (or group insurers) from imposing a separate deductible for mental health or substance abuse disorder benefits. In other words, a group health plan cannot require a subscriber to meet one deductible for mental health/substance abuse disorder benefits and another deductible for medical/surgical benefits. Rather, a single deductible must be applied for all benefits provided by the group health plan for each coverage unit (i.e., for individual plan deductibles as well as family plan deductibles). 

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Federal Bill for Health Care Reform Unveiled

Earlier this week, House Democrats introduced H.R. 3200: America's Affordable Health Choices Act of 2009 that seeks to make affordable health care available to an estimated 97% of Americans.

The key components of the plan are as follows:

• The plan mandates that employers provide health care coverage to employees. Employers that fail to provide health care coverage will have to pay fees or penalties based on the employer’s payroll (e.g., 8% for payrolls of $400,000). The plan does provide some exceptions to such penalties and fees, including small business with payrolls under $250,000.

• The plan also mandates that individuals maintain health care coverage or pay penalties in the form of a new tax based on his or her income. Individuals that meet a “hardship” exception would be exempted from the penalty.

• The plan provides credits for low- and moderate-income individuals and families to help fund the purchase of health care.

• The plan would create government-sponsored insurance to compete with the private sector. Those needing health care could shop for plans in a government-operated “exchange,” in which private carriers could participate if they meet standard benefit requirements designed by the federal government.

• To subsidize the plan, a surtax ranging from 1% to 5.4% would be imposed on the top 1.2% of income earners.

• The plan would introduce new regulations that would prohibit health care plans and insurers from excluding coverage based on pre-existing conditions.

Barger & Wolen LLP will provide continuous updates as the bill progresses through the House and Senate.

California Supreme Court Holds that Only the Class Representative Needs to Meet the Standing Requirements of Proposition 64 to Pursue a Representative Action

In Re Tobacco II Cases, 46 Cal.4th 298 (2009) 

Following the passage of Proposition 64 on November 2, 2004, in order to bring a representative claim under the unfair competition law (“UCL”), a plaintiff must meet the following standing requirements: (1) establish that he or she “has suffered injury in fact and has lost money or property as a result of such unfair competition” and (2) comply with the class action requirements as set forth in California Code of Civil Procedure Section 382. Bus. & Prof. Code §§ 17203, 17204 and 17535. After the passage of Prop 64, litigants continued to debate whether only the named plaintiff or all class members had to meet the more stringent standing requirements of injury in fact and loss of money or property as a result of the alleged conduct. 

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Non-Contracted Emergency Care Providers Cannot "Balance Bill" Plan Enrollees

Prospect Medical Group, Inc. v. Northridge Emergency Medical Group, 45 Cal. 4th 497 (2009)

The California Supreme Court was recently faced with the issue of whether emergency care providers that do not have contracts with the health care service plan (the “plan”) can bill the patient for the difference between the bill submitted to the plan and the actual amount received from the plan—a practice known as “balance billing.” In Prospect Medical Group, Inc. v. Northridge Emergency Medical Group, 45 Cal. 4th 497 (2009), the Court held that non-contracted emergency care providers may not engage in balance billing of plan members.

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