By Frank Darras, Esq. Mr. Darras is the founding partner of DarrasLaw, America’s top disability insurance litigation firm. His firm has recovered nearly $800 million in wrongfully denied insurance benefits for clients of all backgrounds and professions across the nation.
Former NFL defensive back Haruki Nakamura made recent headlines when he filed a lawsuit against Lloyd’s of London and its underwriters. While many speculate this lawsuit could influence how insurance policies deal with brain injuries, one larger aspect to this lawsuit that has been ignored.
The Nakamura lawsuit provides textbook example of how minor claim missteps can make any policyholder subject to insurance bad faith tactics, whether you are an average Joe or the next NFL star.
Nakamura’s career was cut short when he suffered a debilitating concussion during a preseason game in August 2013. The Carolina Panthers released him five days later, and he reportedly suffered debilitating concussion symptoms for months afterward. Nakamura was awarded permanent total disability benefits under the NFL’s Player Retirement Plan in 2015 after it was determined he suffered from chronic post-concussion syndrome.
Nakamura is seeking $3 million – triple the value of his career-ending disability policy – to account for damages, costs, interest, and fees.
According to the lawsuit, Nakamura alleges the insurer subjected him to “virtually impossible, hair-trigger notice procedures; voluminous and duplicative paperwork, no fewer than three layers of administrative bureaucracy … and interminable delays in its ‘investigation’ of [his] claim.”
This lawsuit illustrates textbook bad faith insurance practices, as well as the kind of missteps claimants like Nakamura make that can invite unreasonable delays and wrongful denials.
Nakamura allegedly made some nearly fatal mistakes in the claim process. This policy required proof of loss within a strict timeframe. According to the complaint, he needed to notify the insurer of the permanent, totally disabling injury within 20 days. Failure to meet these deadlines is hyper-technical, but some courts will hold these short-fuse triggers valid.”
Lloyd’s of London resorted to very common delay and unreasonable denial tactics — tricky policy language and playing the malingering card. Often, when the carrier recognized they may have trouble defending an accidental injury claim, we see not-so-independent medical exams where the insured is accused of malingering or secondary gain.
Policy language dictates there must be a singular, identifiable accident that is the sole and direct cause of the disability. If there was a series or accumulation of traumatic events – such as Nakamura’s previous concussion when playing for University of Cincinnati – insurers will also try to use that event as a cause for its denial.
Nakamura should and will likely argue the college injury did not contribute to his career-ending disability, as he did not suffer any reported cognitive difficulties or post-concussive issues until the career-ending preseason hit in 2013.
If tricky and confusing policy language does not ensure a proper denial, insurers may then attempt to prove the claimant is a malingerer. Lloyd’s of London exercised their right to an independent medical exam and sent Nakamura to two different doctors. One of them was a neuropsychologist who ‘determined’ Nakamura was a malingerer. If the insurer can argue that you appear to be faking or exaggerating your symptoms, that raises credibility concerns. It becomes a matter of the insurer’s physician statements versus the claimant’s physician statements, and the jury is left trying to pick the salt out of the pepper.
Nakamura’s case highlights that any disability insurance claimant – regardless of their occupation – can fall victim to fatal claim missteps, poorly written insurance policies and institutional insurance bad faith tactics.