We are often asked whether a particular claim is the type of claim that an insurance company would be interested in settling for a lump sum buyout. The answer, as explained in more detail below, is always, it depends, because there are a number of factors that come into play, and many of those factors are not even directly related to whether the claim itself is legitimate or whether the insured’s condition is permanent (although those are important factors that impact whether a buyout is a possibility).
What is a Lump Sum Buyout?
You may be familiar with the terms of your disability policy, but you may not know that, in certain instances, insurers are willing to enter a lump sum settlement. Under a lump sum settlement, your insurer agrees to buy out your policy and, in return, you agree to surrender the policy and release the insurer from any further obligations to you going forward.
There are certain pros and cons to this sort of settlement. Some claimants prefer a lump sum settlement, because it allows them to avoid having to rely on month-to-month payments from their insurer (which may or may not arrive, or if they do arrive, may not arrive on time) and/or to avoid the hassle of dealing with claim forms, medical exams, etc. for years to come. A lump sum settlement can also allow you to take advantage of present investment opportunities that can provide for your and your family’s future. But there are also other considerations that you will need to discuss with your attorney as well as your accountant and other financial advisors. For example, if your benefit period lasts to age 65 (and you end up living to the end of the benefit period), you would likely receive more money cumulatively over time if you stayed on claim and received monthly benefits in lieu of a lump sum settlement.
Lump sum settlements can also be attractive to insurance companies. A settlement can allow insurance companies to release money from their reserves and to eliminate administrative expenses associated with the ongoing review of your claim year after year. But just as you might receive more money cumulatively over time if you stayed on the claim, the insurer might benefit financially from not offering you a lump sum settlement. For example, if your policy provided for lifetime benefits, and you met an untimely demise, your insurance company’s obligation to pay benefits would cease, and they may end up ultimately paying out a lower amount in total monthly benefits than they would have if they paid out a lump sum settlement on your claim.
Because this process is completely discretionary on their part, insurance companies are very deliberate about offering lump sum settlements. Before doing so, they must weigh multiple factors including the following:
- Permanency. The insurer is more likely to offer a settlement if its actuaries determine that you will likely be on claim for the maximum benefit period.
- Reserves. Over the course of your claim, your claim’s reserves slowly peak as you are on claim for an extended period of time (and permanency is established) and then at some point, they start to diminish as the claim is paid out, and you get closer and closer to the end of the maximum benefit period. The insurer is more likely to offer a settlement when the reserves are at their peak (typically around 3-5 years into a claim), because that is when the insurance company would improve its bottom line the most by freeing up the reserves.
- Mortality/Morbidity Issues. The insurer is more likely to offer a settlement if its actuaries determine that you will probably live to the end of the maximum benefit period. Or if you have lifetime benefits, the insurer will estimate your lifespan based on your health history to determine whether it is financially beneficial for the company to offer a lump sum settlement.
- Offsets. The insurer is more likely to offer a settlement if it determines that you will probably not receive income in the future that would offset the benefit amount before the end of the maximum benefit period.
- Anticipated Gain. Companies will not offer a buyout unless they stand to save money in the long run, so they have their actuaries calculate how much of a gain (percentage-wise) the company would net if they settle the claim. Insurers often have internal financial objectives that impact the amount they are willing to offer on settlements such as requiring a net gain amount of a certain percentage (e.g. 35%).
- Cash Outflow. The insurer will be more or less willing to offer a settlement depending on their quarterly or even annual cash outflows. Thus, if a company had paid out a lot of buyouts recently, the company may not have enough cash available to offer additional lump sum settlements.
The bottom line is that offering a lump sum settlement is completely voluntary on the part of the insurer and doing so depends on the unique factual circumstances of your claim. Nevertheless, knowing the factors that insurers consider in making this decision can help you understand whether a lump sum settlement is appropriate in your case.
Reducing the risk of having to fight for benefits requires understanding the terms of your policy from the beginning, carefully and thoroughly filling out the application, and ensuring accuracy and consistency in your claim packet and subsequent filings. As the saying goes, the best defense is a good offense, and the best way to avoid litigation is to file the claim correctly the first time.
Although filing a successful claim is not easy, it is the ideal. Unfortunately, insurance companies have a strong incentive to increase their bottom lines and often they practice aggressive tactics in improper attempts to justify the denial or termination of even a wholly legitimate claim. If your claim has been terminated or denied, it can seem overwhelming or hopeless to try to reverse the decision. In the event of a denial or termination, many insureds know they can sue their insurer and go to trial. Yet, even if you are ultimately successful in a lawsuit, litigation can sometimes drag on for years. While a lawsuit is pending, you’ll not only have legal expenses, but will also not be receiving benefits (and likely not be in a position to work to offset your expenses, due to the nature of your disability or your policy’s language). There are, however, some alternative options that can be attractive to both parties that policyholders may not be aware of, namely mediation and lump sum settlements.
All too often we see legitimate claims denied or terminated, with the insurance company refusing to reconsider their position. If your claim is terminated, the company knows that it wields a lot of power over the denied individual, including the power of money, the power of time, the power of institutional knowledge, and the power to tolerate litigation. In other words, insurers calculate that spending money on even protracted litigation will end up being cheaper than continuing to pay benefits, and they know that many claimants will just give up and go away if they draw out court proceedings long enough.
While this might sound bleak, there can be alternatives to a full-fledged lawsuit that culminates in a trial (and potentially drawn-out appeals). One such method is mediation. Mediation is where the parties to a lawsuit meet with a neutral third party in an effort to settle the case.
For the most part, mediators are retired judges, or active or retired attorneys. The mediator reviews the case file and then meets with both parties, seeking to facilitate discussions between the parties and try to find common ground in order to reach an acceptable compromise. Because mediation is not binding, the mediator’s recommendation and any subsequent agreement between the parties is not final until the parties memorialize it by putting all the agreed upon terms in writing and signing the document.
Often the insurance company will offer to draft the agreement so they can have control over what the agreement says, and so it is important to stay engaged in the process even after the mediation has ended, in order to ensure that the parties’ agreement is accurately documented. The settlement agreement itself is a very important document, so you should be sure to take the time to carefully review it before signing, to be sure it encapsulates all the agreed upon terms.
It is also important to keep in mind that mediation typically does not result in a full restoration of benefits nor is not always successful. The non-binding nature of mediation means that if the insurance company low-balls and refuses to budge in its offer, the claimant may need to just walk away and resume litigation.
Lump Sum Settlement
Another way of avoiding trial is through negotiating a lump sum settlement. This typically occurs outside of the mediation setting, but sometimes requires the filing of a lawsuit before the insurance company is willing to come to the table. When this happens, your insurer agrees to buy out your policy and you release your right to collect under your policy and your insurer from any obligation to you. The buyout amount will be your policy’s “present value” (i.e. the amount of money you could invest upon receipt, based on a determined interest rate, and end up with the same amount of money you would have received in benefits at the end of your policy), discounted by a percentage that is negotiated by the parties.
A buyout can be an attractive offer and can occur at any stage of the litigation process. A lump sum buyout could even be a preferable alternative to having benefits reinstated, as you would no longer have to deal with your insurer. Your benefit payments would cease being on hold pending the outcome of a trial and you could invest the lump sum in order to provide for your and your family’s future. In addition, unlike monthly disability benefits, the lump sum settlement you receive would be inheritable and available to be passed on to your heirs, should something happen to you.
There are, however, certain drawbacks to a lump sum buyout, including the fact that you and your insurers cannot accurately predict the future of the market with 100% certainty, so the calculations will only be a best estimate. If you are healthy and have lifetime benefits, you could also receive more money cumulatively over time if you were to stay on claim. So, while attractive, especially when faced with litigation, the pros and cons must be carefully weighted when considering lump sum buyouts during the litigation process.
We often see claimants who face the loss of their benefits simply give up and accept a denial, daunted by the thought of protracted litigation. While litigation may sometimes be the most advisable way to get benefits, and possibly punitive damages, there are other avenues to explore, advisably with the help of an attorney, that can end in your retaining at least some of the benefits you stand to lose completely when an insurance company denies your claim.