Appeals court approves trial in suit against insurance company

Wednesday, Jan. 21, 2004 | 8:43 a.m.

CARSON CITY -- A federal appeals court ruled Tuesday that a Las Vegas lawyer injured in a barroom fight in which he was an innocent bystander should have a jury trial to show he was entitled to disability coverage from his insurance company.

The 9th U.S. Circuit Court of Appeals, in a 2-1 decision, overturned the ruling of U.S. District Judge Lloyd D. George, who issued a pretrial summary judgment in favor of the Paul Revere Life Insurance Co., which was sued by attorney Milton Eichacker.

In September 1996 Eichacker tried to stop a barroom brawl. Someone hurled a billiard ball at him, hitting him directly between the eyes, causing serious fractures that resulted in substantial reconstructive surgery.

Two months later, in November 1996, Eichacker's physician, Dr. Andres Resto, cleared him to return to his law practice. But Eichacker encountered problems taking care of simple duties, according to the case, and he was referred to a psychiatrist, Dr. Robert Peprah in September 1997.

Peprah diagnosed the lawyer with major depression. Eichacker's emotional state became so debilitating that he closed his law office. He was then involved with problems with the state bar, filed bankruptcy and suffered the eventual loss of his home.

Eichacker had purchased disability coverage from Paul Revere in 1996. To receive benefits, Eichacker was required to be under a physician's care, which meant the regular and personal care of a doctor.

Eichacker submitted a claim in April 1998 that was denied by Paul Revere, and then he filed suit.

George ruled that Eichacker's disabling condition was depression and yet he saw only a plastic surgeon while the policy was active. He did not start seeing the psychiatrist until Sept. 26, 1997, more than a month after his policy lapsed. The judge ruled that Eichacker did not meet the terms of the policy of being under a physician's care.

The appeals court, in a decision written by Judge Dorothy Nelson, said there was sufficient evidence to create a dispute on whether the policy had lapsed and if Eichacker had been under a physician's care that fulfilled the terms of the policy.

Nelson wrote that when "Eichacker acquired his insurance policy, he intended to be covered for any disabling condition that resulted from an injury that befell him. He would have reasonably expected the policy to cover disabling depression if the depression did, in fact, result from an injury he suffered during the policy coverage."

Judge Pamela A. Rymer dissented, saying she would affirm the decision of George.