The Chronicle’s Stros beat writer, Jose de Jesus Ortiz, reports today that the insurer of the Stros disability insurance policy on slugger Jeff Bagwell has denied the Stros’ claim that Bagwell’s arthritic right shoulder has rendered him disabled under the terms of the policy. Previous posts on the Bagwell disability claim are here and the post from the past weekend on Bags’ impending retirement is here.
The insurer’s position is not particularly surprising. Although Bagwell cannot throw a baseball well enough to play Major League Baseball in the National League, he was in the same condition last September when the Stros activated him to pinch-hit in the final regular season games and the playoffs. Consequently, the insurer contends that nothing has changed since Bags was physically capable of playing last fall and, thus, he continues not to be disabled.
On the other hand, the Stros are contending that the fact that Bags was able to handle partial duties in the fall (i.e., bat, but not throw) fails to establish that he is not disabled now. The Stros contend that Bagwell’s disability was not finally confirmed until January 12, 2006, when orthopedic expert Dr. James Andrews examined Bags, according to Stros’ counsel, Wayne Fisher:
“He was throwing the ball at 35 mph at what distance he could throw. On Jan. 12, we know total disability began, because Dr. James Andrews, a world-renowned physician, told him. That was the first time any physician had ever said that to Jeff. If Connecticut General Insurance Co. can tell us what person in that insurance company knows more about whether Jeff Bagwell was totally disabled on Jan. 12 than Dr. James Andrews, I’ll be very interested in cross-examining him.”
Fisher is a first-rate plaintiffs lawyer and an old friend of Stros owner, Drayton McLane. The success or failure of these types of claims are notoriously dependent on the policy provisions, particularly those pertaining to the definition of disability and the litigation forum. If the policy requires arbitration of the claim, then my sense is that the Stros have a tough case. On the other hand, if Fisher can get the insurer into state district court in Harris County, then the home field advantage definitely favors the Stros.
An insurance company trying to screw over a premium-paying customer when a claim is made under the policy? I’m shocked – shocked – that this could be happening.
I’m hoping for three things: (1) that Mr. Fisher is as good a plaintiff’s attorney as Tom claims, (2) that whoever negotiated the insurance terms for the Astros was as competent as Mr. Fisher, and (3) there are minimal hard feelings between Bagwell and the Astros when this sad episode is over.