Robert Renner

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Robert Renner is a partner in Barger & Wolen LLP’s Newport Beach office. He has been with the firm for nearly 20 years, joining the firm as a summer associate during law school.
His expertise includes all aspects of business litigation - with a particular emphasis on insurance coverage work - in both state and federal courts, from the initiation of the lawsuit through any appeal.
Mr. Renner’s insurance-related practice primarily involves individual and group insurance contract disputes, but he has handled cases arising in virtually all areas of life, health and disability law. In particular, he has developed substantial experience in handling ERISA-governed litigation.
In addition to handling countless cases in the United States District Courts in the Central, Southern and Northern Districts of California, Mr. Renner has litigated several cases in the state and federal courts of Nevada and in the federal court of Arizona. Admitted to practice in all courts within the state of California, he is also admitted to the Seventh Circuit Court of Appeals.
Having obtained an undergraduate degree in journalism, Mr. Renner’s background has both influenced and enhanced his practice of law, particularly with respect to his writing style and overall work product.


Articles By This Author

You Can Plan On The Plan: United States Supreme Court Rejects Invitation To Rewrite Plan Terms In Heimeshoff v. Hartford Life & Accident Insurance Company

By Robert Renner & James Hazlehurst

On December 16, the United States Supreme Court issued its opinion in Heimeshoff v. Hartford Life & Accident Insurance Company. The unanimous decision, which was written by Justice Clarence Thomas, affirmed the Second Circuit’s ruling that the three-year contractual limitation period for filing suit to recover benefits under an ERISA plan is enforceable even though that limitation period begins to run before the participant’s right to sue accrues. 

The contractual limitation period at issue precluded a plan participant from bringing suit more than three years after “proof of loss” was due under the plan’s terms.  ERISA, however, has been judicially construed to require that plan participants exhaust administrative remedies through an internal review and appeal process before the participant has a right to sue to recover benefits.  This means that the contractual limitation periods like the one in Heimeshoff begin running before the cause of action, or right to sue, accrues.  In other words, the contractual limitation period could theoretically bar a lawsuit even before the plan participant had the right to sue. 

Heimeshoff argued that this result conflicts with the general rule that a limitation period commences when the plaintiff has the right to sue.  The court rejected this argument, noting that in the majority of cases the plan participant still had over a year left to bring suit after the exhaustion of administrative remedies. 

Justice Thomas explained that “[i]n the ordinary course, the regulations contemplate an internal review process lasting about one year.”  “We cannot,” Justice Thomas continued, “fault a limitations provision that would leave the same amount of time in a case with an unusually long internal review process while providing for a significantly longer period in most cases.”

The court therefore concluded that “[a]bsent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable.”  The court did recognize that “rare” cases might arise in which the internal review process precluded a plan participant from bringing suit within the contractual limitation period.  The court expressed little concern for those situations, noting that judges could use equitable doctrines, such as waiver and estoppel, to address those unusual circumstances.  As Justice Thomas explained:

“[even] in the rare cases where internal review prevents participants from bringing §502(a)(1)(B) actions within the contractual period, courts are well equipped to apply traditional doctrines that may nevertheless allow participants to proceed. If the administrator’s conduct causes a participant to miss the deadline for judicial review, waiver or estoppel may prevent the administrator from invoking the limitations provision as a defense.  To the extent the participant has diligently pursued both internal review and judicial review but was prevented from filing suit by extraordinary circumstances, equitable tolling may apply.” (internal citations omitted)

At oral argument in October, Justice Sonia Sotomayor raised the possibility that if the court ruled against Heimeshoff, the Department of Labor could potentially issue a clarifying regulation requiring a minimum period of time – one year, for example – in which the participant could bring suit following the conclusion of the administrative process. 

The decision in Heimeshoff suggests that such a regulation is unlikely, especially given the court’s belief that equitable doctrines sufficiently address the “rare” situation where little or no time exists to file suit at the end of the administrative process.

Heimeshoff is noteworthy for, among other things, the court’s recognition of “the particular importance of enforcing plan terms as written.”  The Supreme Court’s decision offers reassurance to plan administrators and claim administrators that courts will uphold the agreement of the parties unless that agreement is contrary to a controlling statute or is unreasonable. 

For further analysis of this decision, please see SCOTUS DECIDES: Three-Year Contractual Limitations Period Enforceable in ERISA LTD Plan on Barger & Wolen's Insurance Litigation & Regulatory Law blog.

SCOTUS Unlikely to Reject Three-Year Limit for Filing Lawsuit in ERISA Disability Claim

By Robert K. Renner and James A. Hazlehurst

The transcript from this morning’s oral argument at the United States Supreme Court reflects that a majority of justices seem poised to uphold an ERISA plan provision imposing a three-year limit for claimants to file their lawsuits following the original submission of proof of loss. 

Several justices expressed skepticism over the need to intervene in this particular case, where the plaintiff/petitioner had approximately one year following the final denial of her claim within which to sue. Moreover, at least one justice noted that the federal government would be empowered to issue a clarifying regulation only if the Court ruled against the plaintiff and upheld the three-year limit.

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Accrual of Statute of Limitations for ERISA Disability Claim to be heard by SCOTUS

By Robert K. Renner and James A. Hazlehurst

On October 15, 2013, the United States Supreme Court will conduct oral argument in Heimeshoff v. Hartford Life & Accident Ins. Co., et al., addressing the accrual of the statute of limitations for judicial review of an adverse benefit determination under an employee benefit plan governed by the Employee Retirement Income Security Act (“ERISA”).

As discussed below, the District Court of Connecticut granted defendants’ motion to dismiss, holding that plaintiff’s lawsuit was time-barred given the plan’s contractual limitation requiring legal action to be commenced within three years “after the time written proof of loss is required to be furnished.” The Second Circuit Court of Appeals affirmed in an unpublished per curiam opinion. In granting the petition for review, the Supreme Court limited the scope of its inquiry to a single question, rejecting consideration of two others that had been posed.

This blog entry will therefore “tee up” Tuesday’s oral argument before the Supreme Court, summarizing the underlying District Court and Second Circuit decisions and clarifying what are – and what are not – the core issues to be resolved.


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Attorneys' Fees Reduce ERISA Plan's Recovery From Common Fund

By Robert Renner and James Hazlehurst

The United States Supreme Court ruled today that absent an express provision to the contrary, the amount an ERISA plan can recover from a plan participant’s lawsuit against a third-party tortfeasor must be reduced proportionately by the amount of attorneys’ fees the participant incurred to obtain the recovery. 

In US Airways, Inc. v. McCutchen, an ERISA health plan paid $66,866 for James McCutchen’s medical expenses for injuries sustained in an automobile accident. McCutchen later hired counsel and recovered $110,000 from the other automobile driver and from his own automobile insurer. After paying his attorneys their 40% contingency fee, McCutchen was left with a net recovery of $66,000. Given McCutchen’s total recovery of $110,000 and based upon a reimbursement provision if McCutchen recovered money from a third party, the ERISA plan sought recovery of the $66,866 it paid on his behalf. 

The district court granted summary judgment in favor of the ERISA plan, holding that it could recover from McCutchen the full amount it paid. The Third Circuit vacated the district court’s judgment, noting that McCutchen would be left with less then full payment for his medical bills and the result would give a windfall to the plan. The Supreme Court reversed, holding that while the ERISA plan could recover the medical expenses paid, any recovery had to be reduced proportionately - pursuant to the common-fund doctrine - by the amount of attorneys’ fees incurred in the lawsuit against the third-party tortfeasor. 

In a 5-4 decision, the Supreme Court reasoned that the ERISA plan’s governing documents did not explicitly provide that the plan had first priority to reimbursement from third-party recoveries. 

Justice Elena Kagan wrote the majority opinion, noting that full reimbursement from McCutchen produced the odd outcome whereby McCutchen was in a worse position by pursuing and obtaining a third-party recovery:

Without cost sharing, the insurer free rides on its beneficiary’s efforts – taking the fruits while contributing nothing to the labor.” 

Instead of permitting the ERISA plan to recover up to the amount of McCutchen’s net recovery (i.e., $66,000), the Court held that where the plan does not specify rules for allocating a third-party recovery between the plan and the participant, the common-fund doctrine provides the default allocation rules. McCutchen was therefore entitled to retain 40% of his net recovery as his “attorney fee” for recovering a common fund for the benefit of another.      

The Court unanimously agreed that equitable principles cannot override the plain terms of an ERISA plan. However, the dissent, which was authored by Justice Antonin Scalia, would not have applied the common-fund doctrine because it disagreed that the plan’s terms were ambiguous. Justice Scalia stated that the Court granted certiorari based on an understanding that the plan’s terms unambiguously allowed for full reimbursement from third-party recoveries without any reduction for attorneys’ fees and costs.   

 

Recovery From Dissolved Corporation's Liability Insurer Barred By Foreign Survival Statute

The recent case of Greb v. Diamond International Corp. highlights the need for dissolved corporations and their insurers to consider the survival statute of their state of incorporation when defending against actions brought in California.

In Greb, the California Supreme Court held that California law does not preclude the application of a foreign jurisdiction’s survival statute. The defendant, a Delaware corporation, argued that Delaware’s three-year survival statute barred the action. Plaintiffs contended that California corporate law – which places no time limit on suits against dissolved corporations – governed their suit.

The trial court agreed with the defendant and sustained its demurrer with prejudice on the grounds that Delaware’s survival statute barred the action which was filed more than three years after defendant dissolved. The court of appeal affirmed.

The Supreme Court unanimously affirmed the appellate court’s judgment. The opinion, authored by Chief Justice Cantil-Sakauye, rejected plaintiffs’ arguments that foreign corporations that qualified to do business in California were thereby organized under the laws of California.

The court found “no evidence” that the legislature intended to accomplish that “dramatic result.” Furthermore, “such a scheme would require foreign corporations to ‘follow a litany of requirements regarding various corporate activities that their home state already regulates.’”

For more information on this matter, please contact the article authors: James Hazlehurst, Ed Oster or Robert Renner.

Assembly's Insurance Committee to Hold Hearing Today on Legislation Voiding Discretionary Clauses in Disability and Life Insurance Policies

The California Assembly’s Insurance Committee is scheduled to conduct its first hearing today on AB 1868, a bill outlawing clauses in insurance policies and other related documents that purport to vest the insurer with discretionary power to determine eligibility for benefits or to interpret the terms of the policy.

Under the proposed legislation introduced by Assemblyman Dave Jones (D-Sacramento), any provision in an insurance policy, contract, certificate or agreement providing or funding life insurance or disability insurance coverage that purports to reserve discretionary authority with the insurer would be void and unenforceable. The bill would also require that the Insurance Commissioner disapprove of any disability policy containing such a provision.

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Ninth Circuit Upholds Dismissal of Action Filed Twenty Days After Expiration of ERISA Plan's One-Year Contractual Limitations Period

In Scharff v. Raytheon Company Short Term Disability Plan, et al., ___ F.3d. ___, 2009 WL 2871229 (9th Cir. September 9, 2009), the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of a lawsuit filed a mere twenty days after expiration of the ERISA plan provision requiring an action to be filed within one year following the denial of the appeal from an initial disability-claim denial, holding that the summary plan description’s placement and display of a that contractual limitations period met statutory and regulatory requirements. The court specifically rejected Donna Scharff’s arguments that the doctrine of reasonable expectations should be adopted in analyzing Raytheon’s SPD and that the placement and display violated her reasonable expectations: “We hold that even if the doctrine of ‘reasonable expectations’ applied here, the one-year statute of limitations met its requirements and also met the statutory and regulatory standards for disclosure.” The court also declined Scharff’s call for the importation into federal common law a California regulation requiring insurers to expressly inform claimants of statutes of limitations that may bar their claims. Noting that other circuits had expressly rejected a rule requiring plan administrators to inform participants of provisions already contained in the SPD, the court explained that Scharff’s position “would place the Ninth Circuit out of line with current federal common law and would inject a lack of uniformity into ERISA law.” In that latter regard, a lack of uniformity among the circuits would be detrimental, particularly to large multi-state employers who issue the same welfare benefit plan to cover all employees, regardless of their location.

Circuit Judge Susan P. Graber authored the majority opinion, joined by Judge Kim McLane Wardlaw. Judge Harry Pregerson dissented.

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