The Third Party Vendor and The Challenge To Objectivity and Fairness

The Third Party Vendor and The Challenge To Objectivity and Fairness:

Investigation Firms and Surveillance

By George M. Thompson, Jr.

I. Introduction

The purpose of this article is to give the reader some insight into the challenges confronting their policyholder clients when private investigation firms and their insurance company clients misuse the utility of surveillance and videotape to wrongly color an insurance claim. To that end, this article will demonstrate a strain of the "gotcha" mentality in the private investigation industry where financial results of their insurance company clients dominate the investigation firms' business plans, marketing, and critical decision making during an investigation as opposed to fidelity to objectivity, professionalism and fairness. The article provides an outline of basic claims investigation issues and questions that the policyholder attorney must consider in analyzing whether his client's right to a good faith claim evaluation has happened. Finally, this article outlines a few reported opinions taking both insurance companies and investigation firms to task for their over the top and sometimes tortuous conduct.

II. Background

  1. The Private Investigation Industry

Private investigation firms help to combat insurance fraud insurance fraud. As officers of the courts policy holder attorneys desire to weed out fraudulent claims too. The public is frequently reminded of the staggering cost to our society of billions of dollars lost annually to insurance fraud, and the consequences it has on honest premium paying policyholders and claimants. The need for to combat insurance fraud, however, does not give license to investigation firms and their insurance company clients to presume "guilt" before investigating any insurance claim; or to presume "denial" before videotaping. Indeed an insurance company will be sailing into perilous waters if it tolerates an institutional mindset equating standard investigative techniques of a policyholder's claim with a criminal investigation of a suspected felon. Adherence to the duty of good faith and a true acceptance of the concept of a "full and fair review" in those claims governed under the Employee Retirement Act of 1974 ("ERISA") suggests that the surveillance tape or surveillance report should not displace critical thinking and analysis in the claim file and the ongoing search for a claim's context and truth.

  1. The Insurance Claim

It is not infrequent that the denial of a disability claim is largely driven by a surveillance report or surveillance videotape provided by an "independent" investigation firm. A review of insurance cases involving surveillance, and perhaps within the block of policyholder cases you are litigating, reveal a pattern of events common to most claim denials that rely heavily on the impact of the surveillance report or videotape within the claim file. First, the surveillance is conducted by a private investigator who may exercise his discretion of what to capture on the surveillance tape. In essence, the investigator serves as both producer and director of the investigative product with the authority to edit by deciding what is videotaped or excluded or communicated to the insurance company. There is usually no indication in the claim file as to whether the insurance company even has compliance guidelines regarding the reliability of the surveillance videotape. Second, the videotape is then meticulously compared with every utterance and every word of the insured in the claim file. Any deviation between the reported restrictions and limitations and the "snapshot" on the videotape is then at risk for being seized upon as conclusive evidence of the insured's lack of credibility. Third, the videotape is then shipped off to either an "independent medical examiner", particularly in the ERISA/LTD arena, or the insured's own treating physician with the hope that the videotape snapshot could replace the clinical image of months or sometimes years of the insured's reality of restrictions and limitations. Fourth, you or your policyholder client learn about the videotape and its role in the decision to deny after the claim has been closed and you are left to contemplate what is the reality of your policyholder client's claim and is it even possible to return the claim to its proper and true context notwithstanding the presence of the videotape?

III. Two Case Studies: G4S and Veracity Research

What follows are comments and mission statements either authored by or posted by two investigation firms on their internet websites. The comments demonstrate that the "state of mind" inquiry is justified.

In 2009 MJM investigations changed its name to G4S after being acquired by a British investigation firm.G4S aggressively markets its services to the insurance carriers and like many other investigation firms, will be found plying its trade at large insurance claim trade shows like the International Claims Association and the Eastern Claims Conference. It is an international business concern that makes millions of dollars from its insurance clients and openly boasts of its commitment to its clients on its website found at Under their website tab titled "Insurance & Risk Management Solutions", the vendor promises to create " that are specifically designed to produce value-driven results and increase our client's profitability." G4S further states:
"We are operating in an industry where cost-effectiveness and bottom line benefits dominate. Therefore, we do not just conduct investigations. We are constantly responsive to the unique needs of our clients and are looking for and implementing new processes and technologies to yield greater results...The results...have significantly reduced or eliminated the exposure of our insurance clients."
See (last visited on March 3, 2009). G4S' "gotcha mentality" and modus operandi is captured in its February 10, 2009 G4S e-business newsletter, in a section titled "G4S Success Story," which was archived on their website. The vendor states in part:
"Recently, two G4S investigators "tag teamed" a claimant and were able to provide the client with hours of excellent video. After days of failed attempts to prove the claimant was not totally disabled, the investigators got a break when they caught him on the way to a doctor's appointment with a severe limp. Mysteriously, the claimants limp went away after leaving the doctor's office.... (emphasis added).

Veracity Research Company and Investigations
Veracity Research Company and Investigations ("VRC") competes with G4S in the private investigation marketplace. Their website is found at . It proudly proclaims its trademark and industry symbol as "The Lone Wolf" and solicit dedicated individuals to join their "Wolf Pack" on their career tab. See Error! Hyperlink reference not valid. viewed on April 10, 2009). VRC explains its use of the wolf as its business symbol as follows:
"The lone wolf was chosen as VRC's logo because of its aggressive and stealthy intensity. The wolf also represents VRC's fierce loyalty to the private investigation industry. The penetrating stare of the wolf demonstrates our most powerful weapon is not our physical strength but psychological determination."
Id. at "Our Company" tab, "symbolism."
VRC sates on its home page that it approaches its client's business needs with "the sole purpose of minimizing your liabilities and resolving your investigative challenges." It frequently promote customer survey prizes ranging from overseas trips to DVD players to all levels of client claim department employees and display some of the following client testimonials
Gregg: "I wanted to pass you a quick note to let you know the ratio of cases assigned to VRC and the cost effectiveness thus far this fiscal year. Between 1/1/03 and 3/1/03, we have assigned VRC 43 investigations which have created a net savings of over $1,000,000.(emphasis added).
Gene: "The judgment (VRC) used on this claim as to when to stay on site and when to leave and come back at a later time was great. I can tell that the sense of urgency and priority to dollars spent was keeping with our company culture." (emphasis added).
Trenisha: "Thank you VRC for the great work that you did on my investigation. Most companies are afraid to follow the claimant into stores and the video that you obtained of him totally exceeding his restrictions was great. This is just what I was looking for to deny my claim. Give yourself a pat on the back for this one." (emphasis added).
The purpose of the investigation vendor statements above is not to make light of the challenge of insurance fraud or the vendor's heralded success stories in detecting, capturing and helping to convict a true insurance fraud. Rather, the purpose of the statements is to demonstrate the unapologetic pervasiveness of the "gotcha" attitude and the insurance industry's use of investigation firms, not to just capture insurance frauds, but to create factually distorted leverage to deny a claim that otherwise should be paid . Expressions of "failed attempts to prove that an insured was not totally disabled" or acknowledging the effort to find something "to deny my claim" and trumpeting the net savings of over $1,000,000 in a single quarter connote an attitude more directed at using surveillance as a tool for managing claim liability as opposed to combating insurance fraud. To that end, the hiring of the investigation firm and the misuse of surveillance has too often become the claim examiner's preferred course of action to "when all else fails". Accepting the premise that an investigation company approaches all of the tasks assigned it by its insurance company clients with a genuine "open mind" would be naïve.

IV. Getting the Full Picture
How does the policyholder advocate get at the true motivation behind the request for the services of the G4S', VRC's and the like? How does one find out whether the utilization of the investigation vendor is a benign collection of observations and facts or a predetermined course towards denial? Start your investigation by asking the following questions:

  1. Is there anything in the claim file that creates a "red flag" issue about the insured's credibility that warrants the cost of surveillance or the use of it at the particular time it is ordered? For example, is there a discrepancy between a disability client's statement that they are not doing any work at all but there is also documented income for the individual in the claim file?
  2. Alternatively, does the request for surveillance look odd and out of place? For example, is the surveillance ordered almost a matter of routine shortly or immediately after the insurer receives information or records that would tend to support the payment of the insurance claim? Similarly, does the surveillance merely confirm behavior earlier known while the claim was being paid but is now being perceived as "novel" information for the purpose of denial?
  3. Does the claim file contain any documentation that actually identifies who at the insurance company ordered the surveillance, communicated directly with the investigation firm, communicated the budget for the assignment and provided the investigation firm with information about your client?
  4. Assuming your claim file is relatively "quiet" on the issues in #3 above, you'll need to inquire as to the existence of a Special Investigation Unit ("SIU") within the insurance company. Alternatively, is the SIU function outsourced? How is the SIU staffed and how do they communicate with the claims department? Do they keep their own file, electronic or hard copy? Did their SIU staff retain emails with the vendor on their company desktop or personal data communication devices, i.e. Blackberry, Treo, cell phone.
  5. Did the SIU provide the investigation vendor with any information that really isn't germane to the conducting of discreet surveillance? For example, the amount of the monthly disability benefit, claim reserve, or how much has been paid to date on the claim?
  6. Did the insurance company have any surveillance guidelines and, if so, was the surveillance product generated on your policyholder client, in compliance with those guidelines? For example, does the insurer require that every minute of observation of the insured be videotaped to guard against the vendor's "cherry picking" of taping activities of your client that would tend to question the validity of the claim as opposed to not taping activities that would tend to support the payment of the claim?
  7. Similarly, does the investigation firm have its own investigation guidelines or code of ethics and did they comply with them?
  8. What is reported on Westlaw, Lexis/Nexis, your trial association list serves, or the Federal Court Pacer index, the internet when you enter the name of the investigation firm? Do they have a history of overly aggressive tactics?
  9. As reflected in the discussion above regarding the G4S and VCR websites, what is the investigation firm's philosophy towards objective and fair investigations that they display to their potential clients on their websites or on insurance industry claims' investigation marketing materials?
  10. Is the insurance company an established "account" with the investigation vendor? What are the business proposals from the vendor or business plans from the SIU? Has it been promised by either, that a dollar amount of savings or a percentage of investigation/closures will follow if the vendor is retained?
  11. Does the surveillance report or videotape actually have any substantive value? For example, in the case of a disability claim, did the insurance company claim file actually reflect depth of analysis correlating the videotaped "observations" of activity with the insured's ability to perform his or her occupation in the usual and reasonable manner with regular continuity? To wit: pushing a shopping cart to one's car is not the same as performing invasive cardiology while wearing a lead apron. Pulling an empty rolling garbage can across one's front lawn is not the same as filling a pallet with bags of limestone in a warehouse.
  12. Is there a significant disparity between the hours spent observing the insured and the actual amount of time associated with the insured's activities actually videotaped? Does the investigation vendor's tape match up with its written report of the insured's activities?
  13. Does the file reflect multiple surveillance assignments? Assuming that no denial decision flowed from the earlier surveillance, does the earlier videotape support your client's claim? Does the claim file reflect any analytical effort even trying to reconcile the differing images or does the insurance company merely hang its hat on the videotape footage it believes supports denial of the claim?
  14. Does the file reflect one investigation vendor replacing another investigation vendor followed shortly by videotape from the new surveillance vendor that tips the clam towards denial? Was the decision to change investigation vendors contractual, random or results oriented?
  15. Is there a hard copy or electronic on line work request form available for insurance company personnel to complete in ordering surveillance from the investigation vendor? Does the form allow for the insurance company to designate the work assignment as "normal", "priority," or "high priority?" What do those words mean? If applicable, discover why was the surveillance requested on your client deemed a "high priority?"

V. The Courts And Meaningless Surveillance

A review of the following reported cases involving disability insurance claims and surveillance illustrates the justification and necessity of the suggested line of questions and analysis in part IV. above. In Morgan v. Unum Life Ins. Co. of America, 346 F.3d 1173 (8th Cir. 2003), the plaintiff alleged disability due to fibromyalgia. The medical records showed, and the plaintiff stated in a telephone interview with the claim examiner early in the claim, that he did engage in light exercise. At that point in time, the plaintiff's light exercise did not rise to the level of disqualifying him from benefits. Later in the claim, video surveillance was obtained of the insured engaged in light exercise but, at that later date, the previously known activity of light exercise became a significant fact in the conclusion to deny further benefits. TheMorgan Court opined that: "...Unum's surveillance showing Morgan driving his car, eating lunch at a restaurant, carrying light objects, sitting and reading, and stretching and doing light aerobics exercise for about forty five minutes revealed nothing new and was not substantial evidence supporting Unum's decision to discontinue Morgan's disability benefits." Id at 1178.
In Carugatti v. The Long Term disability Plan For Salaried Employees, 2002 WL 441479, (N.D. Ill. March 21, 2002), the insured was claiming disability due to chronic fatigue syndrome and was on claim for approximately nine years. She was videotaped walking her small dog for 14 minutes and removing the hood from her air conditioner while using a small step ladder to reach it. She was also receiving social security disability benefits. Her claim was denied after an in house Doctor for the Hartford, which insured the plan, opined that "long term secondary gain appears o be the issue." The court found that:

" surveillance tape only demonstrates that Carugatti can walk her dog for several minutes a day and climb a small step ladder. The video surveillance does not shed any light on Carugatti's ability to function at a routine job...Carugatti's ability to walk her dog several minutes a day and climb a small step ladder once does not automatically render a conclusion that she was lying or misrepresenting her condition...the video surveillance documents only thirty-four minutes of outdoor activity over three days... the surveillance does not shed light on the plaintiff's ability to function at a full time job". Id. At *7.

In Holler v. The Hartford Life & Accident Ins. Co., 2005 U.S. Dist. LEXIS 25099,2-3 (S.D. OH Oct. 26, 2005), the Court examined the significance of Hartford's surveillance of the insured, who was beset by fibromyalgia, in the context of the claim denial. The Holler court opined, in part, that " is generally accepted that fibromyalgia tends to fluctuate in severity of symptoms so that patients have "good" days and "bad" days...the surveillance report relied upon by Hartford did not show the Plaintiff could perform the essential duties of her occupation because the investigator only observed the plaintiff outside her home on one of the three days of surveillance.
The judicial rationale for not relying on a distorted "snapshot" of daily activity of an insured in Holler, is also evident inBrenner v. Hartford Ins. Co. 2001 WL 224826, *5 (D. Md. Feb. 23, 2001) (slight activity on isolated days does not elevate day in and day out abilities nor document the price paid for activities by the insured); Cross v. Met Life Ins. Co., 292 Fed Appx. 888,*4,*6 (11th Cir. 2008) (five days of surveillance resulting in 2 hours of videotape a "mere snapshot" of plaintiff's activities); Franklin v. Hartford Life Ins. Co., 2008 WL 5110836,*12 (M.D. Fla. Nov. 25, 2008) (seven days of surveillance revealing 20 hours of activity a "mere snapshot" of plaintiff's life and "offers no proof that he is capable of work in his own occupation); Osbun v. Auburn Foundry Inc., 293 F. Supp. 2d 863,870 (N.D. Ind. 2003) (1.5 hours of surveillance video over two days falls short of demonstrating that the plaintiff is capable of sustaining a job); Soron v. Liberty Life Ass. Co., 2005 WL 1173076,*11 (N.D.N.Y. May 2, 2005) (surveillance of little value discounting self reported symptoms of the plaintiff were it "shows her performing isolated activities for brief periods of time with no revelation of the consequences).

Contrary to the courts' conclusions above,Tsoulas v. Liberty Life Assur. Co., 454 F.3d 69 (2006) is illustrative of the type of surveillance that is meaningful is supporting a denial. Tsoulas was on claim for several years for a "mild form" of multiple sclerosis that frustrated her own physicians in terms of definitively diagnosing her. In February 2004, Tsoulas competed a routine activities questionnaire where she represented that: (1) she could not walk or stand without the assistance of a cane, wheel chair or walker; (2) she was in bed 14-18 hours a day;(3)she could only drive a car "very little,"; (4) she left her house at most once a week; (5) she never left her house on weekends; (6) she never went shopping at a mall; and (7) she could only grocery shop with her son's assistance.
The same week that Tsoulas completed the questionnaire, surveillance video tapes revealed that she drove her car unassisted; walked without any assistance, completed errands out of her home by herself; could negotiate a set of stairs without assistance ; could go to a bank and shopping mall without assistance; and could go grocery shopping by herself, load and unload groceries into her grocery cart and push the cart as well. A few weeks later, additional surveillance video tape captured Tsoulas traveling to a tanning salon, donut shop, bank, nail salon and back to her residence on the same day; traveling to a hotel, parking garage, restaurant, comedy club and night club on the same day without assistance; and on another day, traveling to a restaurant, furniture store, various gift shops, and c a coffee shop. In light of the gross discrepancy between her represented activity level and the activity level captured on video tape, It came as no surprise that the Tsoulas court upheld the district court's finding that Tsoulas' claim that surveillance was undertaken for the purpose of terminating her benefits lacked merit. Id at 77.

VI. Crossing The Line: Investigative Misconduct That Creates Liability For Vendor and Insurance Company

Cases that analyze where an investigative firm transitions from "fact gatherer" and "observer" to "tortfeasor" usually involve an invasion of privacy or trespass claim. The Right of Privacy is expressed as:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts, section 625B. It is noteworthy that a violation of the right to privacy permits a non physical ("...or otherwise...") invasion and need not require the trespass or destruction of property ("...upon the solitude or seclusion of another...").

Classic examples of investigators literally and figuratively going too far in their quest for their clients abound in the non insurance context. See Pinkerton Nat'l Detective Agency v. Stevens,108 Ga. Ap. 159 (1963) (peeping though hedges on property line, all day vigil in parked car outside of the individual's home, trespassing on property with ear next to window to eavesdrop, posing as a TV salesman at the front door and closely following the insured in public places); Noble v. Sears, Roebuck & Co., 33 Cal. App. 654,660 (1973) (investigator uses pretext access to visit insured in hospital);Souder v. Pendleton Detectives Inc. 88 So.2d 716 (LA. 1956) (investigator constantly watching the insured with binoculars).

In the insurance claim arena, in addition to the cases mentioned earlier in part V of this article, Dishman v. Unum Life Ins. Co. of America, 269 F.3d 974 (9th Cir. 2001) provides guidance as to when investigative conduct "crosses the line" and creates exposure for the investigation firm and/or the insurer...even in the context of an ERISA claim. Dishman was the executive director of major California law firm who was disabled as a consequence of severe migraine headaches that were clinically established to the satisfaction of the insurer. An employee of the insurer, who ordered from several investigative firms, background, employment and data checks of Dishman, incorrectly concluded, among other things, that Dishman was employed by a company called Semiotix. It was reported that one of the private investigation firms engaged in pretextual investigation, including posing as a bank lender, to obtain private information. Dishman also alleged that private information about him had been elicited from his neighbors; investigators posed as Dishman to obtain credit card information and travel itineraries; and investigators falsely identified  themselves when they were caught photographing Dishman's home. Following the insurance company's denial of benefits, Dishman sued the insurer alleging, among other things, that the insurer was vicariously liable for the tortuous invasion of privacy perpetrated by the several investigation firms hired to investigate the claim. Dishman prevailed on his disability benefit claim in the district court and the insurer prevailed on the invasion of privacy claim which was dismissed as preempted under ERISA. Both sides crossed appealed to the Ninth Circuit.

At the Ninth Circuit, the Dishman court, in addressing the issue of the dismissal of the invasion of privacy claims in the context of ERISA preemption, first distinguished between state law causes of action that attempt to "obtain through a tort remedy that which could not be obtained through ERISA" and the reality that whether or not the insurer ultimately paid the benefit claim, the "damages for the invasion of privacy claim remain", Id. at 983. In its holding that the district court's dismissal of the invasion of privacy claims warranted reversal, the Dishman court rationalized that any relationship between the invasion of privacy claim and the claim for benefits under the law firm's disability plan was tenuous and the conclusion that the relationship triggered ERISA preemption "smacked of uncritical literalism.":

"The fact that the conduct at issue allegedly occurred 'in the course of UNUM's administration of the plan' does not create a relationship sufficient to warrant preemption. If that were the case, a plan administrator could 'investigate' a claim in all manner of tortuous ways with impunity. What if one of UNUM's investigators had accidentally rear-ended Dishman's car while surveilling him? Would the fact that the surveillance was intended to shed light on his claim shield UNUM and the investigator from liability? What if UNUM had tapped Dishman's phone, put a tracer on his car, or trained a video camera into his bedroom in an effort to obtain information? Must that be tolerated simply because it is done purportedly in furtherance of plan administration? To ask the question is to answer it....We are certain that the objective of Congress in crafting Section 1144(a) was not to provide ERISA administrators with blanket immunity from garden variety torts which only peripherally impact daily plan administration."
Id. at 984.

V. "Merging" the Investigation Firm With the Insurance Company

It would be highly unusual for an insurance company to embrace the potentially wrongful conduct of an "independent" investigation firm hired to surveillance or obtain information about one of its policyholders. More likely than not the insurance company will claim that the investigation firm was an independent contractor and the insurer exercised no control over the actions of the investigation firm. The well recognized exceptions to the independent contractor agency defense are equally in play in the insurance claim investigation context:

  1. Was the insurance company negligent in its hiring of the investigation firm? Could the insurer have uncovered similar misdeeds by the investigation firm in the past had it exercised appropriate diligence or did it simply turn a blind eye to protecting the fairness, integrity and objectivity of its claim process? Was there more to the insurance company's due diligence than a round of golf and fine dinner and drinks at a premier country club that an officer/owner of the investigation firm belongs too?
  2. Did the insurer dictate to the investigation firm how it would perform its specific tasks, essentially relegating the investigative firm to a functional extension of the insurance company and its own SIU?
  3. Did the insurance company take actions that essentially ratified the wrongful conduct of the investigation firm or recklessly accept the fruits of the substandard investigation with an awareness of the videotape's lack of context or reliability?

VI. Trying To get The Videotape Before Litigation and Your Client's Deposition

The video tape and any accompanying investigation report need to be disclosed to your client, particularly if requested, as part of an ERISA appeal and certainly as part of routine discovery whether the matter is governed by ERISA or not. Federal and state courts have fairly uniformly held that video surveillance tapes, even if work product, must be provided in discovery and prior to trial. Papadakis v.CSX Transportation Inc., 233 F.R.D. 227,228 (D.Ma. 2006) citing Chaisson v. Zappata Gulf Marine Corp., 988 F.2d 513, 517-18 (5th cir. 1993); Martin v. Long Island R.R. Co., 63 F.R.D. 53,54 (E.D.N.Y.); Blyther v. Northern Lines, Inc., 61 F.R.D. 610,612 (E.D.Pa. 1973).See also DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184 (1992); Cabral v. Arruda, 556 A.2d 47, 49-50 (R.I. 1989); Dodson v. Persell, 390 So.2d 704, 707-708 (Fla. 1980); Rotundi v. MassMutual Life Ins. Co., 2000 WL 19951,*2 (N.Y.A.D. 3Dept) (NY legislation requires pre deposition disclosure). The failure to disclose video surveillance can lead to its preclusion as evidence. See Clark v. Matthews, 891 So.2d 799 (La. App. 5 Cir. 2005); Chiasson, supra. at 518.

Notwithstanding the line of cases above, the insurance company will likely object and try to take your client's deposition as soon as possible without your having the benefit of viewing the videotape. The images on the tape do not constitute attorney work and are certainly fair game for the policyholder to obtain in order to assess whether the decision to deny benefits was reached in good faith.

VII. Conclusion: Surveillance Videotape Is Not Always What It Seems To Be

The exaggerated reliance and misuse of videotaped surveillance by some insurance companies as the critical element to tip a claim towards denial appears to be a continuing offense to policyholders in general as opposed to an isolated first offense. By gaining a solid appreciation of your policyholder client's specific claim context existing at the time of the insurance company's request for investigative services, developing an ability to discern whether the investigation firm was searching for the facts or in search of a claim denial for its client, coupled with an appreciation of the body of law that demonstrates meaningful and probative surveillance versus meaningless surveillance, you will be a more effective advocate for your policyholder client in assuring that reality and justice are not left entirely to the discretion of the private investigator operating the surveillance camera.

The estimates of the cost of insurance fraud are wildly varied by tens or hundreds of billions of dollars annually among government reports, insurance industry reports, investigation association reports and even the reports of some investigation firms. Given the dramatic spread in the estimates it is only natural to wonder if there is even any agreement as to what type of conduct rises to the level of insurance fraud for the purpose of common measurement? George, can you get some citations to data showing the disparity?

G4S and VRC both utilize their websites to communicate their commitment to high ethical standards, integrity and reliability. Nevertheless, it remains difficult to reconcile these self proclaimed virtues with the internet "chest pounding" that they exhibit elsewhere on their sites regarding their efficacy at helping insurance companies deny claims. In the event that G4S and VRC remove the quoted materials from their websites, the author has retained hard copies of the postings.

Underscoring the risk of blindly accepting an investigation vendor's approach to an insurance claim investigation with an "open mind", is the anecdotal example of the conduct of the United States Attorney's office in Alaska during the 2008 trial and conviction of Senator Ted Stevens. The week this article was being finalized it was disclosed that the corruption conviction was being set aside because experienced, professional governmental lawyers had presented misleading evidence to the court and withheld critical evidence from the defense triggering the trial judge to hold the entire prosecutorial team in contempt.

The author wishes to educate the reader that Dishman never proved his allegations against UNUM in a court of law. TheDishman case nevertheless remains worthy of discussion since it is instructive of the judiciary's willingness to discount the credibility of investigative techniques that offend a sense of reasonableness and to allow an invasion of privacy claim to stand against the scope of ERISA preemption. See also Darcangelo v. Verizon Communications, Inc., 292 F.3d 181,192 (4th Cir. 2002) (privacy claim against Plan not preempted) citing Mackey v. Lanier Collection Agency, 486 U.S. 825, 833 (1988) (lawsuits against ERISA plan for run-of -the-mill state law torts committed by the ERISA plan are not preempted even though these suits, obviously affect and involve a plan participant and beneficiary).