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Can I Sue My Disability Insurance Company For Video Taping Me Without My Permission?

Attorney Stephen JessupAuthor: Attorney Stephen Jessup

A common tactic employed by insurance companies when reviewing a claim for disability benefits is the use of video surveillance (learn more about this here). The surveillance is conducted in hopes of “catching” an insured doing activities that they either claimed they couldn’t do or that differ from the level of physical ability they report to their doctors and/or on claim forms. Naturally, anyone would take offense to the idea of having their “privacy invaded” by someone hired by an insurance company to follow them around and videotape them, but is there anything that can be done about it? Does ERISA prevent someone from trying to sue an insurance company for “invading their privacy.”

In the case of Dreczka v. Hartford, a Wisconsin Federal Court reiterated a long standing principle that State Law based legal actions brought under disability policies governed by ERISA are pre-empted. This means that ERISA essentially eliminates your rights to bring a claim for invasion of privacy.

What is Pre-Emption in an ERISA case?

Any legal action due to some dispute under a disability policy governed by ERISA is subject to federal jurisdiction and federal law. This means that a lawsuit filed under an ERISA governed policy can only be brought in federal court and can only assert legal causes of action available under ERISA. So, if a lawsuit pertaining to an ERISA governed policy is filed in a state court, it will be “removed” to a Federal Court and any State based legal cause of action will be pre-empted by ERISA, or in other terms, will be dismissed.

In Dreckza, the claimant and her husband filed a lawsuit in State Court alleging that Hartford’s claim investigation, which resulted in the termination of Ms. Dreckza’s claim was overly invasive. Specifically, she alleged that Hartford hired an investigator to “stalk” her and videotape her over the course of two days. Ms. Dreckza alleged that when she learned she had been “spied on” she suffered severe emotional distress and was paranoid about leaving her house.

Ms. Dreckza’s complaint against Hartford for its conduct during the investigation of her claim was filed in Wisconsin state court and alleged five separate causes of action under Wisconsin state law: unreasonable surveillance and trespassing, offence to a reasonable person, invasion of privacy, intentional infliction of emotional distress and loss of companionship. As her policy was governed by ERISA, Hartford “removed” the case to Federal Court.

After the case was properly removed to Federal Court, the Court made a determination that Ms. Dreckza’s Wisconsin state law causes of actions were directly related to her claim for benefits under the policy, Hartford’s investigation of her claim, and the subsequent denial of her benefits and therefore governed by ERISA. The Court swiftly noted that her Wisconsin state law causes of action were not allowed to be argued under ERISA and promptly dismissed her case.

Your Insurance Carrier Can Spy On You If You Are in Public View

This case serves as a reminder that any rights you may have under State law do not apply to a legal action brought under ERISA. In essence, the laws created by your State do not afford you any additional protection against the powerful Federal law of ERISA. When you step out your door and enter into the public you no longer have any reasonable expectation of privacy from the prying eyes of your insurance carrier.

There are 13 opinions so far. Add your comment below.

Spied:

Yep. I even had them follow me to church. When they followed me home I waited while they parked for someone to exit the vehicle but nobody ever did.

Sharon Hoover:

Somehow, people on disability, me included, need to get together and get this ERISA business changed! Did you also know that just about the only way to get your long term disability is to have an attorney? The people working for the insurance companies have to be told to not return phone calls, loose faxes and keep changing your contact.

The reason they can do this is because if they get sued, and if you are still alive or if you are not homeless, the only thing that can happen to them is that they have to pay that original amount. Not one cent more. So what do they have to lose?

Since state law doesn’t apply, I don’t see why all of us from different states should come together.

Anyone interested in forming a group please contact me at sharonhoover@comcast.net

It seems like we all could use this attorney group since state lines don’t matter.

Suzanne:

I understand that private investigators are allowed to observe and film a person while away from the persons home in a public setting. We live on several acres in a rural farming community with no public areas nearby except an entrance road and no neighbors. Are they allowed by law to film a person’s while in their home and while out In the persons private property? I’m confused how legally they would obtain footage in this type scenario.

Mentally Abused By The Hartford:

Can you discuss ERISA policies – because I think a lot of policy holders don’t realize that they have the right to see plans. I think you will find a lot of employees don’t get to see plan documents. The employers are picking exclusions and provisions that don’t really benefit the employee. These ERISA policies are only benefiting the employer and the Hartford. The Hartford will get their money back regardless… They will use dilatory tactics.

I recommend not buying any policies through employer… buy on your own.

When you buy ERISA policies you are giving up all your rights and your employer gets to see all your medical records. They might even write that you have to apply for workers comp if there is one hint of a work related stressor. You might think your buying a policy in the state that you live in… and find out later its in a whole different state.

Each policy holder should get to see exclusions and provisions especially if their paying the premium.

I also recommend tape recording the Hartford, from day one. They start out nice and say they care, they want to help you, they switch all the adjusters, then they turn on you. From experience – tape record, tape record, tape record…

Attorney Stephen Jessup:

Suzanne,

It is easy to hypothesize any situation and as such there is really no clear cut answer to your question. With respect to the plot of land you describe, it would seem difficult for an investigator to capture anything from that distance- but that’s not to say they couldn’t. If they are on your private land videotaping then they would be trespassing and you could contact your local authorities.

Attorney Stephen Jessup:

Mentally Abused,

We have described the various details of ERISA policies extensively throughout our website. I would recommend you navigate the site find answers to any questions you might have.

Carla:

Should you talked to different attorneys before hiring one?

Attorney Stephen Jessup:

Carla,

Hiring an attorney is a very important decision. As such, I do believe it is important to discuss your claim with different attorneys so you can make an informed decision on who will be representing you. You need to make sure that you are comfortable and confident with your decision as it relates to your representation.

RecourseHelpPlease:

Help! My insurance company hired a surveillance company to try and capture me on video doing something, which is ok by me since I am not faking it. They however, filmed the wrong person out of a building of over 200 people. Can I sue the surveillance agent because they cannot tell 5 foot from 6 foot and 200lbs from 325lbs? How the heck would an agent at the insurance company and an adjustor claim that they verified it was me if they truly have no picture? Will tort play a roll here since they were obviously pre-disposed to film the first gay man that they saw in a heavily populated gay neighborhood? The insurance cancelled my policy because of this film and I only found out after my policy was cancelled that it is not even me in the film. What can I do? This has caused irreparable damage – I cannot pay my creditors or my medical bills any longer and now have to ask for food stamps.

Attorney Stephen Jessup:

RecourseHelpPlease,

If your disability claim is under an employer provided policy governed by ERISA you would only have legal rights to recover unpaid benefits. The denial letter will explain your appeal rights but I would caution filing an appealing until speaking to an attorney. Please feel free to contact our office to discuss the options available to you.

Stressed out:

My wife had her LTD cut off because of a PI Videotaped her pushing a mower to cut weeds. The grass was dormant, so it was easier to push then a shopping cart. Her paperwork noted that she is able to do light yardwork and her Doctors wanted her to use her body so she doesn’t become sedentary. She has 10 specialist backing her up. The stress and anxiety of being cut off and videotaped caused her to come out of remission from Crohns disease after 14 years. She was out on LTD for IC. A very debilitating disease with no cure. All her Doctors agree that the insurance company caused her Crohns relapse. Is there any way to start a civil suit against the insurance company?

Attorney Stephen Jessup:

Stressed,

If your wife’s policy was an employer provided policy then she would have to undergo the administrative appeal process prior to being able to bring civil suit under ERISA. Please feel free to contact our office to discuss your wife’s claim in greater detail.

BJ:

I am currently awaiting approval for LTD benefits through an employer paid policy with Hartford. I received STD for 6 months, that was constantly interrupted once every 6 weeks because they required medical documentation they already had to be completed & sent to them by my already too busy Dr, over & over to prove I was unable to work, using their forms, of course. This always resulted in becoming a ridiculous repeat of dealing with a 3 ring circus when dealing with Hartford Insurance. The people at Hartford and their handling of ANYTHING, will very quickly become a predictable repeat of lies, incompetence & unnecessarily negligence to the clients who placed their full trust & belief in Hartford & the policies they fooled people into buying policies that would provide financial security if illness/injury ever prevented them from working. If employers paid the premiums for their employees, then employers should’ve made damn sure that the employees were made fully aware of just how limited the coverage was, at least, so the employee knows that their chances of qualifying for that particular benefit would be next to none & that it will be a ton of unneeded stress, aggravation & disappointments added on top of their already over stressed load the tragedy of illness has dumped on top of their lives. The first sign of trouble will show when Hartford employees make repeated claims of never receiving the required paperwork they’ve requested from the doctor, regardless if the doctor can show proof of sending the same paperwork 3 or 4 times with receipts from the fax machine that read successful delivery to the correct fax number Hartford claims to be the fax number to send documents to.

People who depended on the protection they were fooled into believing they had, like myself, are left hanging for weeks even months at a time without a single dime of income, when every person in this country knows that most bills are due every month before their landlord/mortgage company starts putting the pressure on & threatening to take the roof from over their head, the power, natural gas, water, phone is shut off, most people require food on a daily basis, some form of transportation even if it’s paying for the gas for someone else to go pay their bills, buy their groceries, pick up prescriptions and take them to medical appointments, and most of those medications, Dr visits to specialists & medical tests/procedures that Hartford requires repeatedly in order to prove over and over that a person is too damn sick to work aren’t free or cheap! Don’t forget the costs of late/reconnect fees for all the bills that were paid late & services that were disconnected as a result of paying late & the overdraft fees stacking up in the bank account for those who had bills set up on overdraft that bounced due the the benefits from Hartford being abruptly stopped or just not paid at all never depositing. When my STD kept stopping every 6 weeks, it would take Hartford 3 or 4 weeks to make their decision to restart the payments based on the paperwork the Dr sent to them the same or very next day after the Benefits were stopped telling them the same damn thing the dr stated every single time she sent paperwork to Hartford, always multiple times before Hartford would finally admit they had received it. Every time this occurred and I finally got a check that barely covered the expenses I had piling up on me, I would get a weekly check for 2 more weeks & the shit would all repeat again, because if they stopped paying every 6 weeks, take 3 or 4 weeks to start again, 2 or 3 weeks later would be the 6 wk mark again, Now I”m waiting for LTD approval to pick up paying for the same disability that the Dr has said that I will be unable to return to work again indefinitely because of, I have had zero income for 5 weeks going into 6th week, with my assigned Hartford Representative leading me to believe that I would get my first monthly check on Nov 20th then the next one on Dec 20th & would be back paid for the unpaid weeks of Oct with the Nov 20th check, STD stopped because it paid out after 6 months. Here it is after 11pm Nov 19th, and I’ve still not been approved to receive LTD. The last week of Oct &/first week of November was full of constant phone calls & letters from my Hartford Rep asking for the same information over & over again from medical offices I had received treatment from. A total of 3 offices, they supposedly received what was needed from the first office, my primary care Dr, I had to call the 2nd of the 3 offices multiple times & make two visits to them to sign a release then to beg them again to please send the requested info to Hartford, and I have told my Hartford Rep repeatedly to just forget about the 3rd office completely, because they had cancelled my appointment & referred me to the 2nd office because they were more suited to give the care I was in need of, so I NEVER RECEIVED CARE from the 3rd office that I had originally thought I would get there. They don’t have a freaking word of info on me to send, yet, I kept getting requests from Hartford by mail & phone by the same Rep I kept telling that there was nothing available for that office to send, The 2nd office finally sent the requested info to Hartford on the 7th & was surprisingly received by Hartford with first send. So, Hartford finally had all of the required info by November 7th & I’ve not received a phone call or heard a word from Hartford while I wait, pray & hold off my landlord & bill collectors by telling them that I expect to finally start getting paid on the 20th. So tonight, on the 19th, I get a letter in my mail from my Hartford rep, dated on Nov 13th, stating that decision is still pending & the desire was to process quickly but documentation was required from my Dr documenting proof that I meet disability qualifications for my condition according to Hartford’s policy.

Question one: I’ve had the same diagnosis, problem & dysfunction this entire process, 6 months during Short Term Disability & more than another month since when the Long term disability eligible date was. Also, Hartford had already moved my status & had started the Long Term Claim almost a full month before my STD ran out, so why is Hartford just now popping up with a letter stating the Dr now needs to show documented proof according to their policy? Did they just write a new policy in the last week? Why not try the most logical way & use some common sense in the way & order they requests specifics, like making specific requirements according to their policy known from the start instead of sending the patient a letter she’ll receive late on the day before she was told to expect a check more than a month ago, which is also the end of day Monday of Thanksgiving week, when the Doctor’s office will be closed most of the week & a huge chance that the Doctor may have taken the entire week off, plus it’s not exactly that easy to communicate specific Hartford Policy Requirements to a doctor from a patient w/o an appointment within a timely manner & the Doctor understand specifically how things must be worded to satisfy Hartford’s policy requirements being requested well over a month after the process was started that is supposedly being expedited after I threatened to send a copy of a rude response I received in an online chat with Hartford rep when I questioned how I was supposed to buy food or medicine to the Americans Disability Organization, which did get me my last STD approval a lot faster than the previous times.

Also, why did they send me a letter via snail mail instead of picking up the phone last week & calling my Doctor?

Are there not any consumer or disability protection agencies with the ability to make Hartford stop mistreating the people who are sick, broke and dependent on them for even the very basic of needs?

I do understand policies & loop holes meant to favor insurance companies & employers from fraud cases, but how does even a federal law agency that is supposed to govern these company’s practices & treatment allow misrepresentation by both the insurance company & employers to this level, causing people severe terrible hardship, risk of being without power, food medical care & medicines and even becoming homeless, losing everything they have because they trusted in & depended on the insurance promised to protect them since such a beautiful picture had been painted by employers recruiting employees and the insurance companies? It doesn’t take a rocket scientist to see this is a well planned & deliberate con & deception to the many people who believe a totally different service will be provided to them when the employer & insurance company raves about the awesome benefits they are providing to their employees, many of whom pay out of their pockets for a benefit that’s not all it was cracked up to be. Why is this deception, manipulation or misleading allowed to happen when other types of services & businesses are held to a much stricter standard & accountibily for similar practices or less important services that aren’t near as destructive to the people who believed in them/the service offered? Just seems plain as day to me to be a crooked practice having the legal right to cheat & deceive innocent people who believe they have something they don’t.

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