WV Judge Hears Arguments In Retired Firefighter’s Health Insurance Lawsuit

HUNTINGTON - An attorney representing a retired Huntington firefighter argued Wednesday the city of Huntington shouldn't have changed his client's health insurance benefits without an opportunity to renegotiate the terms.

But representatives of the city countered that the city government had the right to change plans and health insurance providers and the retiree's claim is unfounded.

Retired Huntington firefighter Herschel Marshall, represented by attorney Bert Ketchum, went before Cabell County Circuit Court Judge Gregory Howard to present arguments on a 2017 lawsuit he filed against the city. Howard heard arguments in response to Ketchum's motion for a summary judgment in favor of his client and said he would make a decision in the near future.

The case could affect other retired firefighters and their insurance coverage.

The city changed its health care plan in April 2017, resulting in higher deductibles and co-pays for participants. The city should have continued honoring lower rates it previously agreed to when the former firefighter retired in 2000, Marshall's attorney argued.

However, an attorney representing the city said there was no written guarantee that plans would never change or rates increase. State code gives municipalities the ability to negotiate and implement insurance plans, requiring the same plans be offered to current employees, retirees and their families.

Health care plans are renegotiated on a yearly basis, the city's attorney argued, during a time in which participants may elect to increase benefits, decrease benefits or drop coverage.

Ketchum said contract negotiations were held in 1999 between the city and the International Association of Firefighters Local Union 289, which represents the city's firefighters. The city agreed to provide employees and retirees a health care plan for coverage of hospitalizations, major medical incidents, vision and prescription drugs. The city also agreed to offer a supplemental insurance plan to help cover out-of-pocket expenses.

Marshall elected to take the health care plan for himself and his family when he retired from the department in October 2000, Ketchum said.

In January 2017, the city announced it was changing health care providers for an annual savings of $1.6 million. That plan went into effect in April 2017, significantly raising Marshall's deductibles, co-pays and premiums. Marshall filed suit after the changes were made, saying the city negotiated with the firefighters union, and retirees are not members of the union.

"As of Oct. 20, 2000, the city had no right to negotiate on behalf of the union for Herschel Marshall," Ketchum said.

Ketchum said Marshall understood there would be incremental rate increases over time, but did not expect entire plans and providers to change.

Ancil Ramey, an attorney hired to represent the city, responded that Marshall's acceptance of incremental increases reveals there wasn't an agreement locked in for rates before he retired.

"Either this is the contract or they just admitted there is no contract," Ramey said. "They just admitted that we can change the premium. Of course we can change the premium. We can do it every year."

He pointed to case law that shows retirees have a "substantial detrimental reliance" on the success of government benefits they pay into for enjoyment upon retirement. For example, Ramey said public employees who pay into the Public Employees Insurance Agency retirement fund have a right not to have their plans altered or changed. Marshall did not contribute to the city's insurance plan prior to retirement, he said.

"Because money is expected to be put away as a condition precedent to fund the state pension systems, pensions are legitimate debts of the state," he said. "There was no legitimate debt of the city here."

Approximately 70 to 80 additional retired firefighters have joined the lawsuit after the city filed a counterclaim. The city wanted all other retirees to join the case so as not to have to deal with multiple similar separate lawsuits, said City Attorney Scott Damron. The outcome of the counterclaims depends on Howard's decision.

Travis Crum is a reporter for The Herald-Dispatch. He may be reached by phone at 304-526-2801.