Hunton Insurance Recovery Blog

In the case The Estate of Gene B. Lokken v. UnitedHealth Group, Inc., No. 23-CV-3514 (JRT/SGE) (D. Minn.), the plaintiffs alleged that the defendant insurer had denied claims using an artificial intelligence program without human review. They sought discovery into the insurer’s use of AI. When the insurer refused, they moved to compel and the Minnesota federal court granted the motion. Although this case deals with health insurance, its principles are widely applicable to all other types of insurance. Insurers are increasingly using AI to evaluate or even deny claims without human review. They also use it to challenge policyholders’ expenses as too high. Courts are beginning to allow discovery into how AI was used in the claim process. Accordingly, requests for AI chat files, use policies, and documents concerning oversight of AI should now be a standard part of every policyholder’s discovery requests in coverage litigation.

Sanctions are an extreme remedy; frequently sought, but seldom granted.  Such was the case in Hunton Andrews Kurth LLP’s action on behalf of hotel and casino, Treasure Island, LLC (“Treasure Island”), against Affiliated FM Insurance Company (“AFM”) in federal court in Nevada, where AFM “hid” documents which refute the insurer’s defense on the central disputed issue in Treasure Island’s case—and many more actions seeking insurance coverage for losses arising from the COVID-19 pandemic.  A copy of the sanctions order can be found here.

Earlier this month, the Eighth Circuit remanded a COVID-19 insurance recovery case to the district court on jurisdictional grounds. See Great River Ent., LLC v. Zurich Am. Ins. Co., No. 21-3815, 2023 WL 5839565 (8th Cir. Sept. 11, 2023).The Eighth Circuit’s decision underscores federal courts’ continued scrutiny of subject matter jurisdiction—especially in complex cases involving limited liability companies.

Most insurance policies include a period of limitation provision that limits how long policyholders have to sue their insurers for coverage under the policy.  But those periods of limitation can be traps for the unwary.  As with many insurance provisions, different states construe the same language differently.  States not only start the clock at different times, some states pause the clock while the insurer considers whether it will provide coverage.