Most individuals understand that a Plaintiff who wins his or her lawsuit will be awarded attorney’s fees and costs incurred in prosecuting their claim. Unfortunately, attorney’s fees and costs are discretionary under ERISA. Another anomaly in ERISA law is that attorney’s fees and costs may be awarded against either a losing plaintiff or defendant. That’s right. A losing plaintiff may have to pay the insurance company’s attorney’s fees and cost.
Some consider it only fair that the loser pays the fee, no matter which side. Others see it as having a chilling effect on the prosecution of the claim, since an individual may forego pursuing an otherwise valid claim out of fear that they would be saddled with the other side’s attorney’s fees and costs should they not prevail. There are several factors that the courts take into account to determine if an award is appropriate. Therefore, an ERISA claimant with a valid claim should not be deterred simply by the possibility of an award of fees against them.