OTLA Trial Lawyer Spring 2021

14 Trial Lawyer • Spring 2021 Standard Ins. Co. , 49 Or App 731, 735–36, 621 P2d 583 (1980). This process is so open for abuse that Oregon law actually cuts off the insurers’ ability to void policies after two years. Under ORS 743.168 a life insurance policy becomes incontestable, meaning it cannot be voided based on representa- tions in the application, two years after the date of purchase. The policy can still be voided for non-payment of premiums, and claims can still be subject to exclu- sions. However, after two years, the in- surer cannot deny a claim for statements made in the application. In Nelson’s case, his representations in his application matched his records, so the insurer could not rescind the policy. However, they still refused to pay the claim. Nelson’s policy contained a series of exclusions, including an exclusion for accidental death resulting from “being under the influence of any drug, nar- cotic or controlled substance unless taken or used as prescribed by a physi- cian.” Based on the coroner’s findings and the number of missing pills at the time of his death, the insured alleged Nelson had not been taking his painkill- ers as prescribed, and, therefore, it would not pay the claim. Under any insurance policy, the in- sured has the burden to prove coverage for a loss under the terms and conditions of a policy. ZRZ Realty Co. v. Beneficial Fire & Cas. Ins. Co. , 349 Or 117, 138, 241 P3d 710 (2010), adh’d to as modified on recons, 349 Or 657, 249 P3d 111 (2011). For life insurance policies, assuming the insured has passed away and named a beneficiary, this is gener- ally a given. Once the insured estab- lishes coverage, the burden shifts to the insurer to prove an exclusion under the policy. Stanford v. Am. Guar. Life Ins. Co. , 280 Or 525, 527, 571 P2d 909 (1977), appeal after remand, 281 Or 325, 574 P2d 646 (1978). Under the exclusion applied by the insurer for Nelson, the case quickly began to resemble a wrongful death case. The question became how the prescription medication had effected Nelson prior to his death, and how the parties could identify what happened to the 12 missing pills. The parties started with depositions of the hospital staff who had prescribed the drug to Nelson. These doctors and nurses confirmed the prescription amounts and instructions but could not say whether Nelson took the drugs as prescribed. The depos moved on to the emergency personnel who found Nelson and their observations of the scene, again without any factual confirmation one way or the other about pills found or ingested. The final depositions were of the experts who opined on the potential causes of death and the coroner who made the official assessment of the cause of death. The coroner was the key deposition in the case. The coroner had identified a lethal dose of painkillers as the cause of death, yet a review of the autopsy report showed the coroner had tested Nelson’s blood and found painkiller at the amount of “>2mg/l.” This was confusing as all medical information and toxicology studies on the drug indicated a signifi- cantly higher dose would be needed to have a lethal effect. Upon questioning, the coroner ad- mitted his equipment was not capable of testing for levels that would be toxic, and upon registering the highest level that he could test for, he simply listed it as the cause. After additional questioning he admitted that from a scientific stand- point, he had no clue as to whether Nelson in fact had a lethal amount of drug in his blood at the time of death. Without solid evidence of the amount of painkiller in Nelson’s blood at the time of his death, the case was able to resolve. Finding solutions We all buy insurance to protect us in times of tragedy and crisis. When the crisis hits and our insurance provider lets us down, our loss is compounded. Health claims and life claims can be particularly difficult as the need for coverage can be extremely pressing and the reasons for denial can be intensely personal. I chose the above cases to illustrate there are solutions. Insurers sometimes deny with- out reading the policy, coroners some- time call a death without reasonable factual support. Once the insured dives past the medical terminology and the hurt feelings, the cases look a lot like any other contract. As with any other con- tract, we can fight back, and we can win. Clinton Tapper focuses on insurance car- rier disputes, as well as other complex litiga- tion at The Tapper Law Firm, 474 Wil- lamette St., Ste. 306, Eugene, OR 97401. Tapper is a contributor to OTLA Guard- ians at the Sustaining Member level. He can be reached at clinton@tapper-law.com or 458-201-7828. Health Insurance Claims Continued from p 13