Aetna Life Ins. Co. v. Hare

• Decision Date: 12 January 1972
• Docket Number: 6 Div. 109
• Parties: AETNA LIFE INSURANCE COMPANY, Inc. v. Edwin W. HARE.
• Court: Alabama Court of Civil Appeals

Page 904

256 So.2d 904

47 Ala.App. 478

AETNA LIFE INSURANCE COMPANY, Inc. v. Edwin W. HARE.

6 Div. 109.

Court of Civil Appeals of Alabama.

Jan. 12, 1972.

London, Yancey, Clark & Allen and Thomas R. Elliott, Jr., Birmingham, for appellant.

McCollough, McCollough & Callahan, Birmingham, for appellee.

WRIGHT, Judge.

Suit was brought by appellee as plaintiff below upon a group policy of health insurance issued by defendant-appellant covering employees and certain dependents of employees of Southern Bell Telephone Company in Birmingham, Alabama. The policy was issued in 1961 and certificates as to coverage under the policy were provided by appellant for distribution to those employees covered.

Appellee's suit was in two counts each claiming the amount of.$7518.33 due under a medical expense plan provided in the policy. Count One claimed this sum because of the expenses of confinement of appellee's eighteen-year-old daughter in a hospital for a period of time. Count Two claimed the same sum because of the expense of confinement of the daughter in a mental institution for the same period of time.

Appellant filed a demurrer to the complaint as amended, which demurrer was overruled. Pleading was in short by consent. Upon trial, verdict and judgment was entered in favor of appellee in the amount of $4300. Motion for new trial was denied.

The general facts out of which this suit arose are that appellee's daughter, eighteen years of age and dependent, was a multiple handicapped child. She was hospitalized for a time in Birmingham under the care of a psychiatrist. It was the opinion of her doctor that she required residential treatment at a facility known as the Deveraux Foundation in Victoria, Texas. This was a chain facility known to the psychiatrist. It provided only residential treatment for exceptional children. It was not licensed as a hospital or mental institution by the State of Texas. It was not operated by medical personnel but provided regular visits by a physician for holding sick calls for its residents. Any illness, other than minor was treated at a hospital in the nearby city of Victoria. Registered nurses were on duty for eight hours each day. There were no facilities available at the Foundation for medical care or treatment.

Appellee's daughter stayed in residence at the Foundation for some thirteen months. The total charge for her stay was the amount sued for,.$7518.33. There was an overall charge for services rendered of $650 per month. This charge represented all services, including room and board. There was no breakdown for types of services rendered in the statement from the Foundation which was introduced into evidence by appellee.

Claim for the total amount was submitted and denied by appellant for the stated reason that the charges claimed did not qualify as covered medical expenses under the terms of the policy because the Deveraux Foundation did not meet the definition of a hospital as defined in the policy.

During the trial it was stated by counsel for appellee that appellant was limited in defendant the suit to the grounds stated in the denial of the claim. It is conceded by appellee in brief that the Deveraux Foundation is not a hospital as defined in the policy. It is clear from the verdict of the jury that they did not find for appellee under Count One of the complaint. There was no evidence to sustain a finding that the Foundation was a hospital as defined in the policy. Thus, for the purpose of considering the case on appeal, we may disregard Count One of the complaint insofar as the issues, verdict and judgment are concerned and address our attention in such aspects to Count Two of the complaint.

Appellant first argues Assignment of Error 2, which charges error in overruling the demurrer to the complaint. The two counts of the complaint are identical except one relates to confinement in a hospital and two relates to confinement in a mental institution. We set out Count Two hereafter:

'COUNT TWO

Plaintiff claims of the defendants the sum of.$7518.33 due under an extraordinary medical expense plan provided in a policy issued by the defendant company on or about January, 1961, to employees of the Southern Bell Telephone & Telegraph Company for eligible employees, retired employees and certain of their relatives to cover medical expenses, room and board accommodations, expenses for services for mental care or treatment, and for services of physicians and nurses, drugs and medicines, etc. Plaintiff avers that he is an employee of the Southern Bell Telephone & Telegraph Company and, under the terms of his employment, his child, Linda Kay Hare, was eligible to receive treatment under the clause provided in said insurance policy, as she was only 18 years of age; and plaintiff avers that his said daughter was confined in a mental institution from April 1, 1966 through February 28, 1967, and from March 1, 1967 through March 17, 1967, at a total cost of.$7518.33 to the plaintiff. Plaintiff avers that the defendant company has had notice of the plaintiff's claim and has failed or refused to pay the plaintiff.'

It is uncertain from appellant's brief which of the grounds of demurrer it is arguing. Except for the ground that the complaint fails to allege that the policy was in force and effect at the time of the loss complained of, there is no clear delineation of argument as to the grounds contained in the demurrer.

In response to the argument that the complaint is subject to demurrer for failure to aver that the policy was in force and effect, we observe that the complaint does aver that the amount claimed is due. This is sufficient. Since the adoption of Code Form 12, Title 7, Section 223, Code of Alabama 1940, it has been held that a complaint upon a policy of insurance, though not a policy of life insurance, stated in similar general terms, is sufficient. American Bankers' Ins. Co. v. Dean, 227 Ala. 387, 150 So. 333; Modern Order of Praetorians v. Wilkins, 220 Ala. 382, 125 So. 396; Mutual Benefit Health & Acc. Ass'n of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714.

While conceding that the complaint is not a model of pleading, we consider that it does state a cause of action. In such an instance, error, if any, in overruling a demurrer is harmless if the defects in pleading complained of are supplied by the evidence during the trial of the case. City of Mobile v. McClure, 221 Ala. 51, 127 So. 832; Kahalley v. Staples, 39 Ala.App. 61, 103 So.2d 30. Our examination of the transcript indicates that the trial of the case was not affected by the claimed insufficiencies of the allegations of the complaint, as such insufficiencies were supplied by the evidence. In addition, it was stated by counsel that the only defense to the action was that stated by the appellant in its denial of the claim. Further, appellant introduced into evidence the master policy which supplied the answers to the alleged conclusions in the complaint and disclosed that appellant was fully aware of the terms thereof. Thus there was no injury to appellant due to conclusionary averments in the complaint. Commercial Casualty Ins. Co. v. Hubert, 226 Ala. 357, 147 So. 134.

Appellant groups assignments of error 5, 6, 7, 9 and 10 for argument in brief, and devotes argument specifically to Assignment 7. Assignment 7 charges error in the overruling of a motion to exclude the testimony of Dr. Robert Estock as to the reasonableness of the charges of the Deveraux Foundation. As previously stated herein, such charges constituted the total amount sued for.

Dr. Estock was the psychiatrist who treated appellee's daughter in Birmingham and prescribed her treatment or confinement at the Deveraux Foundation. After introducing the statement of charges from the Foundation, appellee used the testimony of Dr. Estock to show the reasonableness of the amount charged. Appellant on voir dire and cross examination of Dr. Estock elicited testimony that he had never seen the facilities of the Foundation; that he did know what specific treatment his patient received there; that he did not know what matters were included in the monthly charge and that he was not familiar with usual charges for services in the community and locale of Victoria, Texas. He further testified that he was familiar with facilities such as the Foundation through reputation and had read of such facilities in his professional study and publications. He was familiar with the principle of such facilities and the need for them in his profession, and that it was his professional judgment that appellee's daughter needed the services of such a facility and would be benefited thereby. There was further exhaustive cross examination of Dr. Estock as to his knowledge of the Foundation and the basis of his opinion as to the reasonableness of its charges.

Appellant's contention is that since the evidence was that Dr. Estock was not personally familiar with the facilities at the Foundation, the specifics of treatment given or the customary charges in the particular locality, that his testimony was inadmissible in proof of reasonableness of the charge. We do not agree with appellant's contentions.

It is the rule in this State that proof of reasonableness of charges for surgical or medical services is a matter for expert opinion. Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633; Harden v. Ala. Gr. Sou. RR Co., 45 Ala.App. 301, 229 So.2d 803. It is further the rule that the competency of a witness to testify as an expert is addressed to the sound discretion of the trial court and the exercise of such discretion will be reversed on appeal only for palpable abuse. Dorsey Trailers, Inc. v. Foreman, 260 Ala. 141, 69 So.2d 459; Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 147 So.2d 279. If a witness, by training, study, observation, practice, experience or profession, has acquired a knowledge in a particular field beyond that of an ordinary layman, he may be...