Montgomery Willard, LLC – In The News
March 19, 2020
On May 16, 2019, the United States District Court for the District of South Carolina entered judgment in favor of Schaeffler Group, USA Inc. and Blue Cross Blue Shield of South Carolina (“BCBSSC”) in an action brought by a Schaeffler Group health plan participant, Jason Berdeau, pursuant to the Employee Retirement Income Security Act (“ERISA”). In his action Mr. Berdeau alleged his employer and BCBSSC unlawfully denied his request for lumbar fusion surgery as not being medically necessary. Mr. Berdeau alleged that Schaeffler and BCBSSC had abused their discretion in concluding that the surgery recommended by his physician was not medically necessary. Schaeffler and BCBSSC argued that the plan’s decision was a result of a deliberate, principled reasoning process, which was based upon the opinions of four separate physicians who reviewed Plaintiff’s medical records and applied the terms of Mr. Berdeau’s health insurance plan and peer-reviewed standards, policies, and guidelines. District Judge Donald C. Coggins, Jr. agreed with Schaeffler and BCBSSC and entered judgment in their favor against Mr. Berdeau. Theodore D. “Bo” Willard, Jr. of Montgomery Willard, LLC represented BCBSSC. READ MORE.
November 27, 2019
On May 6, 2019 the Administrative Law Court upheld the South Carolina Public Employee Benefit Authority, Insurance Benefits Appeals Committee’s decision denying a State Health Plan member’s appeal of the Plan’s denial of her claim for benefits for a type of thyroid testing known as reverse T3 lab testing. The Appeals Committee confirmed the Plan’s initial determination that the reverse T3 lab testing was investigational, not medically necessary, and, therefore, not covered by the Plan. The member appealed the Appeals Committee’s decision to the Administrative Law Court and argued, among other things, that the Plan’s denial should be reversed because: (1) her reverse T3 lab testing had been approved on multiple occasions in the past; (2) the Plan failed to provide notice of its change of position on coverage for the tests sufficient to inform ordinary patients; and, (3) denial was unfair and contrary to her reasonable expectations. The Court, in affirming the Appeals Committee’s decision to deny the member’s claim, found that the member failed to clearly specify and support her arguments with legal authority, and concluded that the Appeals Committee’s decision was supported by substantial evidence. Theodore D. “Bo” Willard, Jr. of Montgomery Willard, LLC represented the South Carolina Public Employee Benefit Authority, Insurance Benefits’ Appeals Committee. READ MORE.
Sept 5, 2019
On March 25, 2019 the Administrative Law Court upheld the South Carolina Public Employee Benefit Authority, Insurance Benefits’ Appeals Committee’s decision denying a State Health Plan member’s appeal of the Plan’s denial of her claim for pre-authorization of benefits for the implantation of a hypoglossal neurostimulator to treat her obstructive sleep apnea. The Appeals Committee agreed with the Plan’s initial determination that the neurostimulator was investigational, not medically necessary, and, therefore, not covered by the Plan. The member appealed the Appeals Committee’s decision to the Administrative Law Court and argued, among other things, that the physicians whose opinions were relied upon by the Plan lacked sufficient experience in the treatment of sleep apnea to provide reliable opinions. The Court, noting that the evidence presented by the member supported the Plan’s determination that the stimulator was investigational and not medically necessary, found that the Appeals Committee’s decision was supported by substantial evidence and, thus, affirmed the Appeals Committee’s decision to deny the member’s claim for pre-authorization. Theodore D. “Bo” Willard, Jr. of Montgomery Willard, LLC represented the South Carolina Public Employee Benefit Authority, Insurance Benefits’ Appeals Committee. READ MORE.
July 25, 2019
Recently, an arbitrator for the American Health Lawyers Association found that a health care insurer’s denial of a claim for medical benefits was proper and dismissed a hospital’s allegations that the insurer had not conducted a full and fair review of the claim, but had, instead, abused its discretion in doing so. The insurer had denied a $368,959.72 claim for medical treatment and services provided to an insured over a nineteen day hospital stay who had sustained injuries as a result of automobile wreck. The claim had been denied based on the health care plan’s “intoxication exclusion,” which provided that benefits were not available under the plan for injuries sustained while the insured was legally intoxicated. Here, law enforcement determined the insured was driving twenty miles an hour over the speed limit when he went straight in a curve, drove into oncoming traffic and hit another vehicle. When the insured arrived at the hospital, an alcohol blood plasma test was performed, and it was determined that he had a blood plasma alcohol level of .246, over three times the legal limit. The hospital argued that the insured’s blood alcohol level should be discounted because (1) the test they performed typically resulted in higher blood alcohol levels than those tests upon which the legal limit is based, (2) a significant amount of time elapsed between the accident and the test, and (3) the insured’s elevated lactate levels may have caused his blood alcohol level to read higher than they actually were. The arbitrator determined that even applying accepted methods of conversion and extrapolation to account for the hospital’s first two arguments, the insured’s bold alcohol level would still have been over two times the legal limit. Further, the arbitrator found that the insured’s lactate levels were substantially lower than the levels necessary to impact the test results. Therefore, the arbitrator determined the insurer had acted in a reasonable manner and upheld the denial of the claim on the basis of the plan’s intoxication exclusion. Theodore D. “Bo” Willard, Jr. of Montgomery Willard represented the insurer in this matter. READ MORE.
May 31, 2019
On September 26, 2018, the United States District Court for the Southern District of Alabama dismissed an action brought against Companion Benefit Alternatives, Inc. pursuant to the Employee Retirement Income Security Act by one of its insureds, E.G. In her action E.G. alleged CBA had unlawfully denied her health insurance claims for treatment she received at a licensed residential treatment center located in Maine. CBA claimed that as a third-party claims administrator, it was not a proper party under ERISA, and moved to dismiss E.G. complaint. District Judge William Steele agreed with CBA and dismissed E.G.’s complaint, finding that CBA was not a proper party under ERISA and reiterating that the de facto plan administrator doctrine did not apply to third-party administrative services providers in this Eleventh Circuit. Theodore D. “Bo” Willard, Jr. of Montgomery Willard, LLC represented CBA. READ MORE.
Montgomery Willard Paralegal Obtains Supreme Court Certification
April 26, 2019
On November 2, 2018, Cristy M. Bradley, of Montgomery Willard, LLC, became the fifty-seventh South Carolina paralegal to achieve the Supreme Court’s South Carolina Board of Paralegal Certification’s designation of South Carolina Certified Paralegal. Mrs. Bradley also became only the eleventh certified paralegal with the designation of Professional Paralegal. The purpose of certification of South Carolina’s paralegals is to assist in the delivery of legal services to the public by identifying individuals who are qualified by education, training, and experience and who have demonstrated knowledge, skill, and proficiency to perform substantive legal work under the direction and supervision of a lawyer licensed in South Carolina. Congratulations to Cristy! You can read more about more about Cristy’s journey toward certification by clicking the following link to her article from the Winter 2018 issue of @Law magazine. READ MORE.
Residential Real Estate
November 2, 2018
Upon returning home from an out-of-state trip, a Chapin couple found that a pipe had burst in their home and done extensive damage to their lake front home. Although the loss was covered by their home owner’s insurance, they still needed to hire someone to repair the damage caused by the water. After interviewing multiple contractors, the couple hired a local contractor to make the repairs. Despite assurances from the contractor that it would perform its work to the satisfaction of its customers and answer any questions its customers may have regarding the work, the contractor walked out of a meeting the couple requested almost a year into the job to review the progress of the work and current expenditures. Instead of responding to the couples’ inquiries, the contractor filed a mechanic’s lien on the property and sued the homeowners for over $70,000. The couple hired Montgomery Willard to defend them in the action instituted against them by the contractor. The matter was eventually resolved with the dissolution of the lien, the contractor receiving nothing by way of its complaint and, instead, making payment to the couple for the poor work it had performed on their home.
Residential Real Estate
October 8, 2018
In February 2016 a Lexington homeowner sustained damage to her home when high winds caused a tree to fall on her home. She hired a local contractor to repair the damage to her home, but that contractor performed defective work, which included, among other things, poor roof installation. In addition, while performing its work, the contractor threw shingles off the roof which repeatedly impacted the home permanently scratching several of the home’s custom windows and damaging other elements of the home’s exterior. After attempts to resolve the matter short of litigation failed, Allen Bullard of Montgomery Willard brought an action on behalf of the homeowner against the contractor to recover the costs to complete the repair of the initial tree damage, correct the contractor’s defective work and repair the additional damage caused by the contractor. The litigation was eventually resolved for a sum sufficient for the homeowner to make all necessary repairs.
August 28, 2018
On August 28, 2018, the South Carolina Administrative Law Court dismissed companion cases filed by a developer and individual property owner (“Petitioners”) who contested the actions of the South Carolina Geodetic Survey (“SCGS”) in clarifying an uncertain thirteen mile stretch of the boundary line between Dorchester and Berkeley Counties. Petitioners claimed they were provided with deficient notice of the impact of the clarified boundary line and were, therefore, denied due process, by SCGS’ actions. In addition, Petitioners claimed the clarified boundary line established by SCGS was erroneous. At the conclusion of Petitioners’ case, the Court granted SCGS’ motion for involuntary nonsuit, and dismissed both cases. The Court found that both Petitioners were afforded due process, as each was provided notice of SCRS’ actions and an opportunity to contest those actions, as evidenced by the fact that they were currently before the Court exercising those very same due process rights. Further, the Court found that Petitioners presented no evidence or argument showing SCGS’ clarified boundary line was incorrect. Consequently, the Court granted SCRS’ motion and dismissed both of Petitioners’ complaints. Michael H. Montgomery of Montgomery Willard, LLC represented SCGS in both matters. Read more about the petition here and here.
July 16, 2018
Montgomery Willard, LLC filed an action on behalf of two local school board members seeking a judicial determination that an individual who had filed as a candidate in an upcoming school board election was not qualified to do so, because that prospective candidate did not live in the county which the school board seat represented. The trial judge, former Chief Justice Jean H. Toal, found that the prospective candidate did not, in fact, live in the county which the school board seat represented, and, therefore, found that the prospective candidate was not qualified to run for the school board seat in question. The prospective candidate appealed the trial court’s decision to the South Carolina Supreme Court. In a unanimous decision, the South Carolina Supreme Court affirmed the decision of the trial court, and determined that the prospective candidate was not qualified to run for the school board seat in question. Michael H. Montgomery handled this matter for the Firm. Read more about Gantt v. Selph here.
May 22, 2018
In August 2017, owners of a marina and campground located in Newberry County were cited for violation of the County’s 2016 Zoning Ordinance, which prohibits the use of recreational vehicles as temporary accommodations for workers. The owners argued that they were not in violation of the Zoning Ordinance because (1) their marina and campground, which had been in existence since the 1950s, was a permitted non-conforming use; (2) the ordinance was unconstitutionally vague; and, (3) the ordinance was an unconstitutional restriction on individuals’ right to freedom of movement. After two days of hearings, the Court agreed that the owners had not violated the Zoning Ordinance and dismissed the charges brought against them by the County. Allen Bullard of Montgomery Willard represented the marina and campground owners.
Theodore D. Williard, Jr. Among America’s Top 100 High Stakes Litigators
April 24, 2018
Announcing the selection of Theodore D. Willard, Jr. among America’s Top 100 High Stakes Litigators® for 2018. Selection to America’s Top 100 High Stakes Litigators® is by invitation only and is reserved to identify the nation’s most exceptional trial attorneys in high value, high stakes legal matters. Only the top 100 qualifying attorneys in each state will receive this honor and be selected for membership among America’s Top 100 High Stakes Litigators®. With these extremely high standards for selection to America’s Top 100 High Stakes Litigators®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys in the community. <Read more>
Residential Real Estate
January 17, 2018
Montgomery Willard was able to assist its clients in successfully resolving a dispute with their home builder. Shortly after moving in to their new home the plumbing system of the residence developed multiple recurring leaks. After investigation it was determined that the plumbing subcontractor hired by the builder had over pressurized the system, failed to install a pressure surge tank and failed to properly seal fittings. Ultimately, the matter was resolved by the builder compensating clients for damages caused by the defective plumbing system and repairs necessary to correct the system.
Residential Real Estate
November 30, 2017
Recently Montgomery Willard assisted a client in obtaining compensation to repair a leak in client’s basement that had not been disclosed to client by the seller in a residential real estate transaction. Several weeks after client purchased a home in Columbia, South Carolina from seller, it was discovered that the residence’s basement leaked whenever any significant rainfall occurred in the area. Montgomery Willard brought an action against the seller on client’s behalf claiming that the seller failed to disclose the leak on the property disclosure statement provided to buyer during the closing process. Montgomery Willard was successful in collecting in excess of $14,000 from seller on client’s behalf so that repairs could be made to the basement.
November 1, 2017
On November 1, 2017 the Administrative Law Court upheld the South Carolina Public Employee Benefit Authority, Insurance Benefits’ Appeals Committee’s decision denying a State Health Plan member’s appeal of the Plan’s denial of her claim for pre-authorization of benefits for battery-powered stance control, custom leg braces, a/k/a knee ankle foot orthosis (battery-powered KAFOs). The Appeals Committee agreed with the Plan’s initial determination that KAFOs were investigational, not medically necessary and, therefore, not covered by the Plan. The member appealed the Appeals Committee’s decision to the Administrative Law Court and argued, among other things, that other health insurance providers, including Medicare, covered KAFOs. The Court, noting that coverage provided by unrelated health insurance policies was of no consequence in the analysis, found that the Appeals Committee’s decision was supported by substantial evidence and, thus, affirmed the Appeals Committee’s decision to deny the member’s claim for pre-authorization. Theodore D. “Bo” Willard, Jr. of Montgomery Willard, LLC represented the South Carolina Public Employee Benefit Authority, Insurance Benefits’ Appeals Committee.
July 10, 2017
Montgomery Willard obtained summary judgment for its government client in a constructive trust action seeking a judgment and attachment of property valued at over one million dollars. After obtaining a judgment against the entity in a contract controversy process, Montgomery Willard pursued the assets of the defendant and its principals by way of an action seeking the declaration of a constructive trust. The summary judgment award afforded our client a secured interest in real property and a money judgment against the principals which will help our client recover funds to benefit its taxpayers.
And The Defense Wins
April 5, 2017
Montgomery Willard LLC member and DRI Life, Health and Disability Committee member Theodore “Bo” D. Willard, Jr., of Columbia, South Carolina, successfully obtained a defense verdict in a $20,000,000.00 breach of contract and bad faith failure to pay insurance benefits case involving an individual disability insurance policy in the United States District Court for the District of South Carolina, Charleston Division entitled Roberta Karnofsky v. Massachusetts Mutual Life Insurance Company, C/A No.
The plaintiff, an anesthesiologist, claimed entitlement to partial disability benefits. The plaintiff alleged that she was partially disabled because she could no longer practice anesthesiology due to neck injuries she suffered in an automobile accident. The plaintiff alleged the defendant acted in bad faith and breached the terms of its disability policy by failing to pay partial disability benefits under the policy. The defendant took the position that no benefits were payable for the period in question because the plaintiff failed to cooperate by failing to submit the required proof of loss for the defendant to adjust plaintiff’s claim, that the plaintiff failed to establish that any loss of income she suffered was the result of any disability, and that the plaintiff’s activities were inconsistent with the restrictions and limitations found by her treating physicians. The plaintiff sought actual damages, punitive damages, and emotional distress damages in excess of $20,000,000.00. After five days of testimony, including testimony from the plaintiff, defendant’s claims examiners, medical experts, insurance industry experts, a vocational expert, an accounting expert, and an expert economist, the jury found for the defendant as to all causes of action. The court subsequently awarded the defendant costs of $16,604.00.
October 19, 2016
Montgomery Willard resolved a case where a client of the firm was sued by the Securities and Exchange Commission for fraud including violations of Section 10(b), Rule 10(b)(5), Section 17(a) of the Securities Acts. The Commission claimed disgorgement and civil penalties in excess of $16,000,000.00. After more than two years of litigation, motions and multiple mediation sessions, we assisted our client in reaching a resolution whereby the Commission dismissed all scienter based charges, its fraud claim and our client paid a settlement including disgorgement in an amount less than $60,000.00 along with agreeing to an injunction on negligently violating Section 17(a)2 and (3). The SEC touted this case as a substantial case at the time of filing and it was covered in national media including USA Today, the Wall Street Journal and Fortune Magazine, among others.
June 15, 2016
On June 15, 2016 the South Carolina Court of Appeals affirmed the judgment of the trial court which had previously ruled in favor of Montgomery Willard’s client (“Client”). In May 2010 an Owner of certain commercial property located in Lexington County brought an action against Client alleging that Client had breached a contract to purchase his commercial property. Owner sought damages in excess of $130,000 from Client. The case was tried in November 2013 in Lexington County. Allen Bullard appeared on behalf of Client. Based on the testimony and arguments presented, the trial court determined that Client had not, in fact, breached the contract, and entered judgment in Client’s favor. Thereafter, Owner filed an appeal to the South Carolina Court of Appeals arguing that the trial court had decided the matter erroneously. The Court of Appeals heard oral argument on the matter on April 19, 2016. Mr. Bullard appeared on briefs and at oral argument on behalf of the Firm and Client. After considering the briefs submitted by counsel and the arguments presented, the Court ruled in Client’s favor, concluding that the trial court had decided the matter properly.
February 18, 2016
In August 2014 a client of the Firm was arrested and charged with five counts of assault and battery, stemming from allegations by students at a Columbia area high school of inappropriate physical contact. Based upon the research conducted, the investigation performed, and the arguments ultimately presented to the Court by the Firm, three of the five charges were dismissed by the Court at client’s preliminary hearing in October 2014. The remaining two charges were subsequently dismissed by the prosecuting authority in December 2015.
January 13, 2016
The South Carolina Administrative Law Court found in favor of Montgomery Willard’s client in an administrative appeal of a denial of health insurance coverage. Client, a health plan, denied coverage for cerebral stenting for a pseudotumor cerebri condition diagnosed by member’s physician. After consultation with three separate physicians Client denied coverage on the ground that member’s physician’s findings did not support a diagnosis of psuedotumor cerebri and, even if they did, coverage was not warranted since member’s physician had failed to rule out the lack of efficacy of more traditional treatments for the condition before moving forward with the more drastic stenting procedure. The member appealed Client’s decision to the Administrative Law Court, but, by order dated December 15, 2015, the Court upheld Client’s coverage denial.
June 25, 2015
The South Carolina Administrative Law Court found in favor of Montgomery Willard’s client in an administrative appeal of a denial of health insurance coverage. Client, a health plan, denied pre-authorization for a wearable cardioverter defibrillator on the ground that it was considered investigational, and, therefore, not covered by the Plan, when the patient is not awaiting a heart transplant or the insertion of an implantable cardiac defibrillator. The member argued that the device was not investigational because it had been ordered by his physician and approved by the FDA. The Court determined that the evidence presented, which included an external medical review by a board certified cardiologist, supported Client’s position that the device was investigational. By order dated March 20, 2015, the Court denied the member’s appeal, ruling in favor of the Firm’s client.
March 24, 2015
The South Carolina Administrative Law Court found in favor of Montgomery Willard’s client in an administrative appeal of a denial of health insurance coverage. Client, a health plan, denied a member’s claim for payment of tuition, room and board for her son’s admission to a wilderness therapy mental health program. Client argued that the terms of the health plan which excluded payment for charges for admissions to psychiatric or substance abuse residential care, including, wilderness camps, were applicable and warranted denial of member’s claim. The member appealed Client’s decision to the Administrative Law Court, but, by order dated January 20, 2015, the Court upheld the position advanced by Montgomery Willard on behalf of its Client and affirmed Client’s decision that tuition, room and board were not covered by the plan.
November 3, 2014
On November 3, 2014, Montgomery Willard prevailed upon the Appellate Panel of the South Carolina High School League to overturn the ruling of its Executive Committee placing the school on Probation rather than Restricted Probation which banned the Firm’s client from participating in the 2014 Class AAA Football Playoffs. The Firm argued that the ban did not conform to the League’s discipline policy and that Restricted Probation should have been the most extreme sanction placed upon the team. The Appellate Panel agreed and reinstated the Firm’s client’s eligibility for the Class AAA Playoffs.
October 6, 2014
One of the firm’s commercial general contractor clients recently recovered in excess of One Million Dollars ($1,000,000.00) for unpaid payment applications in part due to the mechanic’s lien and lien foreclosure action filed on its behalf by Montgomery Willard. The firm’s client had been engaged to upfit a mall anchor space at an Upstate mall. The tenant failed to timely pay valid pay applications necessitating the filing of a mechanic’s lien and subsequent lien foreclosure action. The firm’s client was ultimately paid the entire value of its lien as well as being reimbursed for its litigation costs.
October 6, 2014
On May 6, 2014 the United States District Court for the District of South Carolina held that an employee’s suit to recover benefits under a supplemental life policy allegedly covering her husband was preempted by ERISA. Employee originally filed her suit in state court against her employer and the issuer of her husband’s supplemental life insurance policy. Montgomery Willard, on behalf of the insurer, removed the matter to federal court pursuant to ERISA. Employee moved to remand the matter to state court, arguing that the safe harbor provision of 29 C.F.R. § 2510.3-1(a)(1) applied and ERISA did not apply. Montgomery Willard argued that the matter was preempted by ERISA and jurisdiction was proper in federal court in that the employer endorsed the plan thereby taking it out of the ERISA safe harbor. The Court agreed. READ MORE
October 6, 2014
In March 2012, a homeowner filed a complaint with the South Carolina Residential Builders Commission against one of Montgomery Willard’s residential homebuilder clients alleging certain violations of residential building standards. After mounting a vigorous defense Montgomery Willard was able to secure a complete dismissal of the complaint on August 13, 2014.
September 11, 2014
In an action concluded July 21, 2014, Montgomery Willard helped its client obtain an order removing him from the Sex Offender Registry. At the time of client’s conviction, the offense to which he pled guilty did not require registration on the Sex Offender Registry. The law was subsequently amended to require registration if the sentencing judge made a determination that the crime of which client had been convicted was accompanied by a criminal sexual act. Montgomery Willard successfully argued on client’s behalf that no criminal sexual act was involved in his offense, and he was, therefore, not required to register with the Sex Offender Registry. The court has ordered his removal from the Registry. READ ORDER
September 11, 2014
Mike Montgomery has been certified as a Civil Court Mediator by the South Carolina Board of Arbitrator and Mediator Certification. He is available to mediate cases for parties desiring those services.
August 13, 2014
The South Carolina Administrative Law Court finds in favor of Montgomery Willard’s client in an administrative appeal of a preauthorization denial of health insurance coverage. Client, a health insurance plan, denied a member’s request to enroll in a clinical trial studying autologous hematopoietic stem cell transplant (HSCT) for treatment for multiple sclerosis (MS). Client’s Health Appeals Committee determined that the trial was not medically necessary and was experimental and/or investigational and, as such, was not covered by the plan. The member appealed the decision to the Administrative Law Court, but, by order dated June 4, 2014, the Court upheld the position advanced by Montgomery Willard on behalf of its Client and affirmed Client’s decision that the clinical trial was not medically necessary and was experimental and/or investigational. READ MORE
July 22, 2014
In a procurement decision issued by the Chief Procurement Officer for Information Technology for the State of South Carolina on July 18, 2014 (case No. 2014-206) Montgomery Willard’s client was awarded contract damages and disgorgement in excess of 1.4 million dollars. READ MORE