The District Court of Utah was required to answer this question after a claimant won a long term disability ERISA case. It found that even though the insurer abused its discretion in terminating benefits, attorney fees were not merited. The court went through the five-factor analysis some courts use to determine if a fee award is merited. It first held the insurer's termination of the benefit was wrong and unreasonable, but then the court seemed to backtrack contending that it was unclear if the insurer acted entirely in bad faith.

Then second, the court reviewed the “administrative record” to see if it revealed the insurer's financial situation. It is unclear how the plaintiff was to require the insurer to put that into its administrative record. That might require discovery. On most of the typical five factors for the fee analysis, the court found in favor of the plaintiff. Nevertheless, on two factors, as to whether the insurer acted entirely in bad faith and whether the insurer could financially afford to pay the plaintiff's attorney fee, the court found for the defendant.

The plaintiff was left without an attorney fee award. The insurer only had to pay what it already should have paid during the claim process. That leaves little downside for refusing to pay deserving claims. And it raises a question. When there is a pass interference call in football, do officials merely replay the down?