Blue Cross-Blue Shield of Ala. v. Jackson, CROSS-BLUE

• Court: Alabama Court of Appeals
• Writing for the Court: CATES; The cause was originally assigned to JOHNSON; In approving Carr, P. J., and Harwood, P. J.; JOHNSON
• Citation: 172 So.2d 804,42 Ala.App. 594
• Parties: BLUESHIELD OF ALABAMA v. Verbon G. JACKSON.
• Docket Number: CROSS-BLUE,6 Div. 40
• Decision Date: 09 March 1965

Page 804

172 So.2d 804 42 Ala.App. 594 BLUE CROSS-BLUE SHIELD OF ALABAMA
v.
Verbon G. JACKSON. 6 Div. 40. Court of Appeals of Alabama. March 9, 1965.

[42 Ala.App. 595]

Page 805

Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

[42 Ala.App. 596] Harold P. Knight, Birmingham, for appellee.

CATES, Judge.

The facts in this civil case are taken from the appellant's brief without counter statement by appellee. Therefore, under Supreme Court Rule 9, last sentence, they are taken by us as accurate and sufficient.

The cause was originally assigned to JOHNSON, J., and his now dissenting opinion has further factual recitals.

The cause was tried below without the intervention of a jury. No transcript of testimony appears in the record before us. The judgment entry recites that the 'case was submitted to the court on stipulated facts and taken under advisement.' We review without any presumption. Barnwell v. MacMahon, 26 Ala.App. 451, 162 So. 138.

The circuit clerk has certified in a separate envelope three exhibits apparently submitted by the defendant. Strictly, Supreme Court Rule 23 frowns on this mode of transmittal.

Exhibit 1 is a printed certificate issued over the facsimile signature of the President of Blue Cross in its hehalf.

Section II of this certificate provides in part as follows: '* * * the Corporation agrees that upon the admission of a member to a * * * hospital after the effective date of his coverage * * *, hospital service shall be available to such member * * * during such time as the member's attending physician may determine that hospitalization is necessary.'

Under Section IV it is provided, among other things, that 'a member shall be entitled to hospital service during the first seventy (70) days of each hospital confinement.' (Italics added.)

Under Section VI it is provided: 'The subscriber's [appellee] contract shall continue in force from and after its effective date for the term * * * and from term to term thereafter * * * so long as the applicable fees are paid in advance, unless terminated as herein provided.'

Under Section VII it is provided, among other things:

'3. OTHER COVERAGE--If the subscriber is a member of a group which has group hospitalization coverage other than that furnished by the Corporation, the contract between the subscriber and the Corporation and all rights hereunder may be terminated at any time on thirty (30) days written notice to the subscriber or to his remitting agent, if any.'

I.

The State of the Record is Imperfect

However, under the long standing rule of Looney v. Bush, Minor 413, and Bradley v. Andress, 30 Ala. 80, we cannot entertain these original papers, i. e., the group certificate, Exhibit 1, and two notices of cancellation. These documents are necessarily excluded--designatio unius est exclusio alterius--both from what was before the court below and here. Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891.

We quote from Bradley v. Andress, supra:

[42 Ala.App. 597] '* * * The settled rule is, that whenever it is intended to incorporate in a decree or bill of exceptions, or in an agreement designed to operate as a substitute for a bill of exceptions, any writing read or offered in evidence, it is indispensable to set it out therein, or so to describe it 'by its date, amount,

Page 806

parties, or other identifying features, as to leave no room for mistake in the transcribing officer.' * * *'

The record below, hence, manifests error in that the court purported to enter judgment on a contract without proof of its terms.

Because of the likelihood of this reversal not disposing of the controversy, the writer and Price, P. J., set forth the following views.

II.

When did Cancellation Take Effect?

Clearly consent of an employee to cancellation of a group policy, unless the policy expressly says so, is not required unless an interest has vested. Metropolitan Life Ins. Co. v. Korneghy, 37 Ala.App. 497, 71 So.2d 292, 68 A.L.R.2d 239, adopted by Hill v. Metropolitan Life Ins. Co., 39 Ala.App. 39, 96 So.2d 184, affirmed 266 Ala. 285, 96 So.2d 185.

In approving Carr, P. J., and Harwood, P. J., Mr. Justice Lawson, remarked:

'The observations made in the Shears case [Shears v. All States Life Ins. Co., 242 Ala. 249, 5 So.2d 808], supra, to the effect that cancellation of a group policy cannot be effectuated legally without the employee's consent is applicable only where the employee has an accrued cause of action at the time of cancellation or where premiums have been paid beyond the date of cancellation or the contract of insurance provides that the consent of the employee must be obtained.' (Italics added.)

It is readily apparent that Blue Cross gave notice of cancellation before Mr. Jackson's son had entered the hospital. This would have been a different case if the notice had been given as provided in the policy after the son was already in the hospital. We do not decide how the policy would have applied to such a hypothetical circumstance.

The editors in Anno. 68 A.L.R.2d 249, § 16[a], p. 276, state:

'* * * if the cancellation or modification of the master group policy was validly effected before liability under the policy attached, the employer or his beneficiary is precluded from recovery unless a statute or the policy otherwise provide. * * *'

Pennsylvania Cas. Co. v. Perdue, 164 Ala. 508, 51 So. 352, concerned an individual policy which the company sought to cancel after the insured became ill. The notice followed the happening of the risk.

In Benefit Ass'n. Ry. Employees v. Bray, 226 Ala. 444, 147 So. 640, the ratio decidendi revolves around a judgment sustaining demurrer to appellant-defendant's plea No. 8. This plea sought to recoup to the extent of...