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Monday, December 9, 2013

Wednesday, December 4, 2013

Big win for property rights in Minnesota!

Our firm is happy to announce we won an important case at the Minnesota Supreme Court involving property rights for Minnesotans! The opinion was announced this morning in White v. City of Elk River.

The case involves a campground that was in existence before zoning was enacted by the City of Elk River. Once zoning was enacted, the campground was neither a permitted nor conditionally permitted use - therefore, it was a legal, non-conforming use. Later, the campground obtained a conditional use permit from the city. The land was then rezoned so campgrounds were again not permitted or conditionally permitted uses.

The question then becomes what happens if the city revokes the conditional use permit?

The Minnesota Supreme Court found that:

"A municipality may terminate a nonconforming use of land in accordance with Minn. Stat. § 462.357, subds. 1d-1e (2012) or Minn. Stat. § 465.01 (2012). But a
municipality lacks the authority to terminate a nonconforming use by requiring the property owner to obtain a conditional-use permit to continue the use and then revoking the conditional-use permit. Respondent therefore lacked the authority to terminate appellants’ nonconforming use by revoking the conditional-use permit."

This opinion shows Minnesota has great respect for property rights, and offers protection for businesses operating a legal non-conforming use. Governing bodies cannot terminate your use simply by requiring you to obtain a conditional use permit and then revoking that permit.

See the whole opinion here


Thursday, October 24, 2013

Pension Plans and ERISA

ERISA is the federal law that spells out the rules regarding pension plans available to employees through their workplace. While ERISA does not generally regulate the content of plans, it does provide minimum standards for certain aspects of the plan such as how employees are informed about the pension plans, how plans should be funded, and how an employee's pension rights can become vested and therefore cannot be forfeited. ERISA also gives employees the right to sue the plan fiduciaries if they have wrongfully been denied benefits or if the plan fiduciaries have breached their fiduciary duty to plan participants.

Some common issues that employees encounter are miscalculation of benefits due to them under a pension plan or wrongful denial of benefits to which an employee is entitled. If you have been wrongfully denied benefits due to you because the plan has incorrectly determined you are not entitled to benefits, or has miscalculated the amount you are entitled to, you should speak to an attorney who specializes in ERISA who can guide you through what remedies may be available.

The Department of Labor has a wonderful resource for frequently asked questions at

Tuesday, October 15, 2013

United States Supreme Court hears New ERISA Case

On October 15, 2013, the Supreme Court heard oral argument on a new ERISA case which will decide when a statute of limitations period will begin to run.

Check out the summary of the arguments here:

Social Security Disability Insurance and Long-Term Disability Benefits: Differences and Similarities

Social Security Disability Insurance and Long-Term Disability Benefits: Differences and Similarities

            Many people who qualify for long-term disability benefits may also qualify for Social Security Disability Insurance (or SSDI) benefits.  The definitions of disability are similar in most disability policies to the definition of disability used by the Social Security Administration (SSA). However, there are some notable differences between the two systems namely:

·        The SSA takes into account your age at the time you apply for benefits.  As a result, the older you are, generally the easier it will be to qualify for benefits.

·        Many disability policies separate the definition of disability into two time periods: the “Own Occupation period” and the “Any Occupation period.”  When you first apply for disability benefits, you are disabled if you cannot do your own job (this is the “Own Occupation period”) and at some point in the future, the definition often changes so that you will only be found to be disabled if you cannot do any job (this is the “Any Occupation period”). This split definition differs from the definition used by the SSA which is based on not being able to do any job. 

·        Both the SSA and your disability insurer can obtain opinions from doctors they hire or consult to give an objective opinion of your health condition and whether you are disabled.  However, the SSA is supposed to give more credit to the records and opinions of your treating doctors than to the opinions of a doctor who is not your treating physician.  In contrast, a disability insurer can generally rely on whatever doctor the insurer deems appropriate.

·        The definitions of disability in these two benefit systems are similar, but not exactly the same.  So it is possible to qualify for one type of benefit but not the other.

When applying for benefits under a long-term disability plan, it is important to let the insurance company know if you have been approved for SSDI benefits.  The insurance company does not have to agree with the SSA’s determination of disability, but a finding of disability by the SSA is important evidence that cannot be simply ignored by an insurer when making its own determination of disability.

      If you have applied for both SSDI and long-term disability benefits and been denied by one or the other, you should consult an attorney with knowledge of the procedures for appealing the denial of benefits.

Tuesday, July 30, 2013

Kate Presenting at CLE on Supreme Court Same-Sex Marriage Cases

On August 13, 2013, Kate will be presenting at a CLE on U.S. v. Windsor and Hollingsworth v. Perry, the United States Supreme Court cases recently issued regarding same-sex marriage.

In U.S. v. Windsor, the Supreme Court determined that the Defense of Marriage Act, which defined marriage as only between opposite sex partners - thereby excluding married same-sex couples from certain federal programs and benefits - was unconstitutional.

Hollingsworth v. Perry involved Proposition 8 in California, which amended the California constitution to ban same-sex marriage. The case effectively reinstated same-sex marriage by allowing the trial court decision in Hollingsworth v. Perry to stand.  

Check out the CLE at:

Tuesday, April 23, 2013

Happy Birthday to Barney the Office Para-Beagle!

We would like to wish a Happy Birthday to the office para-beagle! He is 13 years young, and a vital part of the Law Office of Katherine L. MacKinnon experience. He greets all visitors with enthusiasm. He is also a taskmaster - if we don't get into the office and start working in the morning he barks until we do. Thank you Barney for all your hard work, and Happy Birthday!!

Wednesday, April 17, 2013

Supreme Court: Two new ERISA cases!

The Supreme Court just accepted a new ERISA case with a question we at the Law Office of Katherine L. MacKinnon are excited to hear the answer to: When does a statute of limitations begin to accrue on an adverse benefits determination? We'll be holding our breath for this one...

A decision was just released earlier this week on U.S. Airways v. McCutchen, another ERISA case:

Wednesday, February 20, 2013

I Always Feel Like Somebody’s Watching Me…

I Always Feel Like Somebody’s Watching Me…
                When you are receiving short or long term disability benefits, or if you have applied for disability benefits, chances are the insurance company will do some investigation of your claim. Some types of investigation you will expect: they might ask to collect your medical records, or request permission to speak to your doctor.
                Am I being followed? But insurers are too wily to stop there. They can also have a surveillance company follow you on foot or in a car, take pictures or videotape your activities, and report back. The surveillance company will try to catch you doing something you have claimed you cannot do. You have a back injury, but here you are shoveling snow. Or you have a disabling neck injury, but they discovered you water-skiing. You have chronic fatigue, but they caught you taking rock climbing lessons.
Surveillance can be harmful to your disability claim without your activities being so obviously inconsistent with your disabilities. Video may simply show you acting more able than your medical condition may suggest – for example, you have an anxiety disorder, but the surveillance team has you on tape at the mall. This may not be inconsistent with your doctor’s recommendations; in fact your doctor may have suggested you challenge your limitations. But for someone looking for evidence that you are exaggerating your disability, this may be all the ammunition he or she needs to begin a full investigation into your file to find more evidence to support terminating your benefits.
Who is checking out your Facebook? More and more, insurers are doing internet investigation. An insurance company may do anything from Googling your name, checking public databases for any information on you, and checking the online social media sites you participate in to see what comments, pictures, updates, or other information you are posting. Many times when we look through a claim file, we see printouts from the client’s Facebook profile, status updates, pictures from a blog, or comments the client has made online. These can be used as evidence of you participating in activities you have said you cannot do. This information could also be used to prove you can work – the insurer will argue if you have the ability to coherently rant about your friends political views, there are many other jobs you could potentially do. This is particularly true in cases where you are claiming mental impairments that make it impossible for you to think clearly and concentrate on work. If you can interact, socialize, and communicate effectively online, an argument can be made that you could function in a workplace.
What should I do? You should always follow your doctor’s orders, and should not purposefully change your activities simply because the insurance company may be watching. Just be aware that your activities are under scrutiny, and do not be surprised if an insurer undertakes surveillance on you at one time or another during the life of your claim. If you are denied benefits or have your disability benefits terminated, and want more information on what to do next, check out our previous blog post at or contact us at the Law Office of Katherine L. MacKinnon:

Monday, January 28, 2013

Interested in Converting? Tread Quickly and Carefully!

If you are leaving work for a health related reason - for example medical leave for treatment of an illness, short or long term disability, or other medical reason - it may be imperative to find out about whether you can take your life insurance policy with you when you go! 

Usually, if you have life insurance through a group policy at work, when you leave employment you have a right to convert that insurance into an individual policy. This right is guaranteed in the majority of states (see a list of some, but not all, states statutes at the end of this blog post for examples.)

When you purchase a life insurance policy, you are usually required to answer questions about your current and past health conditions, and maybe submit to some type of medical exam. This is so the insurer can decide how big of a risk you are,whether they even want to give you a policy, and how much they want to charge you in premiums. Their investigation of your health is called medical underwriting. 

However, when you convert your group policy from work, you do not have to undergo any medical underwriting. You are guaranteed the right to continue your policy, although it will likely be for a higher premium than you were previously paying.

If you are leaving your job for a health related reason, it may be difficult for you to obtain life insurance again because of your medical history. It is therefore very important to find out the costs of and process for converting your group policy to an individual policy. In some states depending on the insurance policy's language, an insurer may not be required to notify you. So it may be the responsibility of the employee to find out whether they can convert their life insurance, and how to do it.  

The moral of the story is: be proactive and find out the price and procedure for converting your life insurance policy. Be especially sure to find out the time limit to submit any required premiums and paperwork, since most policies have a very short time frame in which to complete the conversion process. Request the paperwork, even if you are unsure whether or not you want to go through with the conversion, so you have everything you need in case you do decide to convert.

(State statutes regarding life insurance conversion from a group policy into an individual policy: Arkansas, Ark. Code Ann. §23-83-122; California, Cal. Ins. Code §10209(b); Delaware, 18 De. Code Ann. Tit. 18 §3125; Georgia, O.C.G.A. §33-27-5; Illinois, 215 Ill. Comp. Stat. Ann. 5/231.1(h); Massachusetts, Mass. Gen. Laws ch. 175 §134A; Minnesota, 61A.09, subd. 1(h); New Jersey, N.J. Stat. Ann. §17B:27-73; New York, N.Y. Ins. Law §4216(d); Pennsylvania, 40 Pa. Cons. Stat. Ann. §532.7; Tennessee, Tenn. Code Ann. §56-7-2305(c).)

Monday, January 14, 2013

Pension Investing News - Ameriprise Suit

Check out this article about the pending lawsuit filed on behalf of Ameriprise employees regarding the investments in their 401(K) plans:

"In the suit, the Ameriprise 401(k) participants allege that the company breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 by offering proprietary-fund options that allegedly were imprudent and unreasonably expensive, and that paid fees to the firm and its subsidiaries."

Full Article: