Derek R. Funk

The Importance of Expertise in Disability Insurance Law

Derek’s practice is exclusively devoted to professionals’ “own-occupation” disability claims, a highly specialized area requiring mastery of policy language, medical documentation, and insurer-specific practices.

Over the past several decades, disability insurers have taken steps to make it more difficult to collect disability benefits.  Policies that were previously 10 to 15 pages long in the ‘90’s have evolved into policies that now span 40 to 60 pages, with most policies having several riders that modify coverage.

Disability insurers also routinely invoke a wide range of legal defenses to limit and avoid payment, such as late notice, the “dual occupation” defense, failure to cooperate, failure to mitigate damages, failure to obtain requisite medical care, and statutory rescission due to perceived misstatements on policy applications.

In addition, disability insurers have placed limits on the total income they are willing to insure per individual policyholder, in an effort to diversify their liability.  As a result, most professionals now have policies with multiple insurers, requiring the filing and coordination of multiple claims in the event of disability.

In many instances, policies issued by different companies have different parameters for collecting and, in some instances, even have competing definitions, requiring careful coordination to maximize benefits, prevent offsets, and ensure maximum coverage is achieved and preserved.

Consequently, it is now more important than ever that disability claims are filed at the appropriate time, in the appropriate manner. High-earning professionals, particularly physicians and dentists, turn to Derek because of his unique expertise in managing complex disability cases, including claims impacted by rescission and late notice issues, disputed residual/partial disability calculations, and mental-nervous or subjective condition limitations.

Initial Claim Structuring, Appeals, and Strategic Advocacy

Initial claim structuring can take months—particularly for slowly progressive conditions—and it can be difficult to know when it is the right time to file. Derek works closely with clients to ensure claims are presented correctly from day one. He carefully navigates the myriad traps insurers may impose at the outset, including:

• Statements under oath, even before litigation is pending, and under penalty of perjury;
• Broad authorizations allowing insurers to access virtually any medical, financial, or professional records and speak with virtually anyone with relevant information;
• Biased medical examinations by insurance company-selected doctors or new testing not permitted under older policies;
• Aggressive tactics and procedural requirements designed to find inconsistencies or create leverage to reduce or deny benefits; and
• Surveillance, which can last days or weeks, aimed at identifying reasons to deny or terminate coverage.

Derek also advises clients who are under active review or re-evaluation, a stage where insurers may attempt to terminate benefits through selective record interpretation, biased examinations, functional capacity assessments, or surveillance.

Drawing on years of experience with contested and litigated claims, Derek identifies early warning signs, advises clients on how to respond, and implements strategies to protect benefits before insurer tactics take effect. If necessary, Derek works with medical experts to identify and address the medical questions that are at the heart of the particular claim, to prevent disability insurers from fooling courts and juries with biased and unqualified experts.

When evaluating denied claims, Derek and Ed assess whether pursuing an internal appeal is required or strategically advisable, and determine whether any further workup of the claim is necessary to preserve the key issues for resolution in court and maximize the likelihood of success. As many insurers seek to eliminate bad faith claims prior to trial through summary judgment, clear and direct briefing is critical due to the wide range of legal, contractual, medical, and vocational issues that must be addressed in each case.

Derek excels in this arena and his analytical mind quickly and adeptly identifies how best to address the perceived weaknesses of a claim and emphasize and prove up the strengths of a claim. He utilizes his extensive knowledge of disability contract provisions, disability case law, and disability insurers’ historical conduct to not only assert “bad faith,” but also back up those assertions and prevail when a denial of disability benefits is unfounded.

Education & Professional Recognition

Derek graduated summa cum laude from Utah State University with a B.A. in Law and Constitutional Studies, with minors in Philosophy and Latin. He earned his J.D., cum laude, from the Sandra Day O’Connor College of Law at Arizona State University, graduating with High Pro Bono Distinction. While in law school, he spent a semester with the Litigation Section of the Arizona Attorney General’s Civil Rights Division and a semester working in the chambers of the Honorable Patricia A. Orozco of the Arizona Court of Appeals.

Derek served as Articles Editor of the Arizona State Law Journal, publishing his Comment, Checking the Balances: An Examination of Separation of Powers Issues Raised by the Windsor Case, and was lead Brief Editor for his law school’s Vis International Commercial Arbitration Moot Court Team, earning an Honorable Mention for Best Memorandum at the 11th Willem C. Vis (East) Moot Competition.

Derek has been recognized as one of the top 100 lawyers in Arizona and repeatedly and consistently recognized in the field of insurance by Phoenix Magazine, Arizona Business Magazine, and Super Lawyers. He has prepared guest articles for both Arizona and Utah dental organization publications and has authored numerous articles for national publications, such as Dentist’s Money Digest and MD Magazine.

Derek is a member of the State Bars of Arizona and Utah and is admitted to practice before the Arizona and Utah Supreme Courts, as well as the U.S. District Courts for Arizona and Utah. He is a member of the Maricopa County Bar Association’s Litigation Section, The National Trial Lawyers organization, and the American Bar Association’s Insurance Coverage Litigation Committee.

Personal

Derek grew up in Logan, Utah, attended law school in Phoenix, Arizona, and now lives in Gilbert with his wife and three daughters.

Derek enjoys golf, basketball, watching sports and spending time with his family in his spare time.