Katherine L. MacKinnon

Katherine L. MacKinnon

Update (February 4, 2014): Is it possible that a person might forget about some doctor’s visit and fail to disclose it in a life insurance application?  If, soon thereafter, he dies of some wholly unrelated cause, is it fair that the insurance company can rescind the policy based on the decedent’s “misrepresentation and/or omission”?  How about if the decedent authorized the life insurance company access to all of his medical records but a third-party health care record provider omitted records that would have put the life insurer on notice of the doctor’s visit that the decedent failed to disclose?  No claim for negligence against the record provider?

Kate Mackinnon discussed this case nearly a year ago in her Minnesota Litigator profile as, perhaps, both the best case and the worst case of her long and distinguished career (see below).  This past week, the Minnesota Supreme Court has granted plaintiff’s petition for review.

Original post (February 19, 2013) (under Subject Line: Minnesota Litigator Profile: Katherine L. MacKinnon, Minnesota ERISAdvocate): Minnesota Litigator is delighted to profile Katherine L. MacKinnon, whose area of expertise is focused on plaintiffs’ side employee benefits claims (ERISA).

How long have you been practicing?

27 years.

Always on your own?

No. I started off as an insurance defense litigator for 10 years but have been solo since 1996.  And after 16 years of solo practice, my firm is growing! I have hired an associate so I am now a “PLLC.”  I refer to us as a “plucky” little law firm.

That’s a big move, congratulations!

There is, of course, the challenge of benefits and so on with an employee.  But there are services to help with that.  And I have been using contract lawyers for some time.

As relatively recent solo lawyer, my fear of hiring an employee is work-flow.    As litigators, the work can be intense and then drop off unpredictably. How do you expect to deal with that?

First, as I mentioned, I have been using contract lawyers for some time and my first hire, in fact, was a contract lawyer for me for about a year.

And I have worked out a deal where I agree to pay a certain amount for hourly work (hours per week of work), then a separate flat-fee contract for other kinds of work (maintaining the website and our blog).  (I am old enough to be stymied by computer issues.)  But this enables us to deal with the issue you’re talking about with regard to work-flow.  It has not occurred yet though.  We’ve been very busy.

When you have an employee, it enables you to take on more work, to take cases that otherwise you might not have.  So the concern you mention just has not occurred.  But it is a leap of faith, ultimately.  So is going out on your own, of course.

How did you wind up with this niche practice of plaintiffs’ side ERISA work?  Through your start in insurance defense?

Actually, no.  When I was with Arthur Chapman that was not the kind of work they did.  They did standard insurance defense: automobile accidents, workers compensation claims, personal injury kinds of cases.  I did  a lot of work on appellate briefs there.  I developed a brief-writing expertise, if you will.

When I initially went out on my own, I did contract work for lawyers, writing their briefs.  Not a bad way of starting on your own.

A colleague called me with a very significant case that had come to him in North Carolina.

How did this Minnesota lawyer get a case in North Carolina?

Back then, and even now, there are very very few plaintiffs’ side ERISA lawyers in the country.   The case came to him from the internet and he needed help responding to a massive motion. And that was the beginning.  I became fascinated. It is an interesting area of practice, particularly for a solo lawyer who works from her home with her dog.

I had three kids and I wanted to be home.

ERISA litigation is a perfect field for someone who needs that flexibility and predictability because the substantive law of ERISA has developed so that a great deal of the work takes place on the administrative side. Before going to court.  And it is essentially a trial on paper.

If you lose, then you file the case in federal court.  The federal courts permit very limited discovery.  It is mostly cross-motions for summary judgment on the administrative record. This eliminated depositions, written discovery, and a lot of the discovery processes that are so burdensome in terms of travel and scheduling.  Also, it is very well suited to someone who likes to write.

So this is how I ended up with this practice. I would say it was karma?

Complete this sentence, “I wish someone had told me at the beginning of my career ________”

A legal career is not static.  Coming out of law school, there is a sense that this is a static profession and change is difficult.  This is wrong on both counts.

Second, law schools offered no instruction on marketing or client management.  Probably because it is not on the bar exam.  That is a tremendous oversight.  I wish they taught it — especially marketing strategies for women — who may have different strategies for marketing.

Golf worked very well for men in the firm I worked at.  But it just does not work for a non-golfer.

What marketing tips for a starting lawyer, and a woman starting lawyer, in particular?

Market within your domain. Where do women spend their time?  Not to be sexist, but there are a lot of child-care events and activities.  Many of my clients are a result of my social and family interactions.  I represent individuals. This might not work as well if your clients are business clients.

And get out there and do pro bono work.  It has been a huge source of business for me.  I have been very active in the bar association.  We run an unemployment compensation pro bono project.  We pick up cases on appeal.  And I was on the bar foundation board.

The best case that you have worked on in your career?

There have been a lot of cases that have been fun and rewarding. The one that most comes to mind is one that went all the way up to the Supreme Court of Minnesota.  The sort of issue only lawyers would find interesting — a statute of limitations issue in a case brought in federal court with federal and state law claims.

If the federal claim is dismissed, the federal law provides a 30-day tolling of statute of limitations on the state law claims. But the law is unclear: 30 days from what?  Interestingly, this issue, the proper reading of a federal law, is only being addressed in the state courts, of course, after these cases are dismissed from federal court and then the statute of limitations bar is raised as a defense in the later state court action.

I advocated the minority view in this case on behalf of a client from Sierra Leone.  We won at the Court of Appeals, bucking the trend.  The Supreme Court took the case, giving me concern, of course.  But we won there too.  It felt good because I was helping someone whom no one was willing to help and we made new law.  That was Goodman vs. Best Buy.

The worst case that you have worked on in your career?

It may be a case I am involved in right now that I was also thinking might also be the best case. The case is pending in the district court but will be shortly appealed. We’ve lost on all possible grounds against all possible defendants.  A fascinating case on behalf of a widow who is basically penniless.

Her husband’s life insurance policy was rescinded by the insurance company.  This is not a standard life insurance rescission case, though.  It is much much more complicated.  And yet I lost every which way to Sunday on motions by defendants for summary judgment.  It is a very difficult case and, as I mentioned, my client is impoverished.

What happened was that my client’s husband applied for life insurance and was asked a whole lot of questions on questionnaires on three different occasions by an insurance agent, a paramedic, and telephone call with the insurer. He provided a considerable amount of information.

But he did not say yes to questions that would have elicited information about a CT angiogram that he had had three years earlier.  (A CT angiogram was a new product back then and is not major procedure or an invasive procedure.)  He did not disclose having had this procedure but he did sign three separate authorization forms giving the insurer access to all of his medical records, including ones to his primary care physician.  CT angiogram records were in the primary care physicians files.

So it is our view that he did not make any material misrepresentation.  He was not trying to hide anything. The problem is that the clinic outsourced the insurance company’s medical record request to a vendor for this kind of processing.  The outside service believed (erroneously, in my opinion) that they could not produce third-party medical records unless the third party was identified as a “referring physician.”  Here, the outside cardiologist was identified as a “consulting” physician so the third party medical record supplier did not send those records to the insurer.  My client’s husband, of course, was completely unaware of this incomplete production of his medical records to the insurer.

Eight months after he applies for the life insurance, he was killed in a motor-cycle accident.  The accident had nothing to do with his heart.  But, under Minnesota law, within two years of the start of a life insurance policy, coverage can be denied for a material misrepresentation in a life insurance application even if it is unrelated to cause of death.

And the case has even more wrinkles.

As I mentioned, there were multiple interviews in connection with the life insurance policy, including one over the phone with the insurer.  That was tape recorded by the insurer.  They walked through the same questions that had been asked by the paramedic in person.

There is a computer record of the call, but the recording of the call was destroyed.  And the recording, it seems, was lost after the insurer had reason to believe a legal claim was likely in light of the denial of life insurance coverage.  Two years after the telephone call, before we commenced suit, but long after we had made clear to the insurer that this was headed for litigation.

They never listened to the recording, apparently.

So there are quite a few legal issues there, which are quite interesting.  There is a spoliation claim.  There is a claim against the medical records processing company.  And, of course, there is the basic claim against the insurer for the life insurance benefits.  And, at the district court, I lost on all three claims on defendants’ motions for summary judgment.

The applicable Minnesota statute provides that the insured may lose coverage for “willfully false or intentionally misleading” statements made in an insurance application.  How could this be established as a matter of law on summary judgment when the decedent gave blanket authorization to release all of his records?  Case law construing the statute, however, has made this issue complicated.

So this lawsuit has been fascinating but also very painful and difficult for me and for my client.

Have there been cases that you have taken a pass on and regretted?

Well, yes and no.  I had a case that I took a pass on that ultimately worked out extremely well for the client and for the lawyer who took the case on.  So, in a sense, it all worked out and I don’t regret it.

It was a case involving surveillance.  Many people have no idea how much surveillance is used by insurers in benefits cases.  The claim was for disability benefits for serious back pain and the insurer had video footage showing the claimant on the long drive, appearing to get in and out of the car without noticeable pain or difficulty.  I thought that there was no way the claimant was going to get past this evidence, though the potential client said he was, in fact, in great pain during this trip, which he simply had to make.

I later found out that this claimant made a good recovery, represented by the lawyer to whom I referred the case when I took a pass on it.

In general, though, I am surprised at the use of these surveillance videos, which are heavily relied on in these cases, and, in my experience, they are often unhelpful to either side.  They often video-tape, for example, the claimant driving to and from the independent medical exam (“IME”).  Or the person just walks out to their mailbox.  I am troubled by this kind of evidence, which I think is misused and misjudged.

On the other hand, sometimes these videos seem to be very strong evidence and insurance companies certainly rely on them.  But maybe this one case where I thought the surveillance evidence seemed so problematic should cause me to re-think the force of this kind of evidence.

The biggest challenge in our field for the next ten years?

Too many lawyers.  We have an awful lot of people who have chosen to go to law school in recent years when we have not been fully employing the lawyers who are already out there.  Nationwide the statistics are very scary.

Also, developments in the law in recent years, on several fronts, and in ERISA cases, in particular, have made plaintiffs’ cases more challenging.  Plaintiffs’ cases drive demand in civil litigation, of course.  So we have both an over-supply of lawyers and, maybe at the same time, a shrunken demand.

With that dismal backdrop, let’s close with, “My advice for young lawyers today is…”

Do what you love.   I started doing defense work.  I went to my first firm because I wanted to get into court, and I did.  When I went into plaintiff’s work, though, I realized, “I should have done this all along.”  When you are doing what you love, the small bothers are easy to overlook.

[Previous Minnesota Litigator Profiles:   Jim Behrenbrinker, civil rights/excessive force cases,Eric Cooperstein, “ethics maven“,  Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator,  John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator.]

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