Colbert v. Mut. Ben. Life Ins. Co.

• Decision Date: 02 December 1980
• Docket Number: No. WD 31000.,WD 31000.
• Citation: 608 S.W.2d 119
• Parties: Richard L. COLBERT, Appellant, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY, a corporation, Respondent.
• Court: Missouri Court of Appeals

608 S.W.2d 119

Richard L. COLBERT, Appellant, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY, a corporation, Respondent.

No. WD 31000.

Missouri Court of Appeals, Western District.

November 3, 1980.

Motion for Rehearing and for Transfer Denied December 2, 1980.

Richard L. Colbert, Kansas City, pro se.

Michael J. Jerde and Michael C. Manning, of Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

Motion for Rehearing and for Transfer to Supreme Court Denied December 2, 1980.

MANFORD, Judge.

This is an original action against insuror seeking recovery of medical expenses and damages for refusal to pay pursuant to § 375.420, RSMo 1978. This appeal is from an entry of summary judgment. The judgment is affirmed.

Appellant presents two points of error, which in summary allege (1) the circuit court erred in finding no genuine issue of fact in dispute between the parties; and (2) the circuit court erred in failing to consider specific terms of the insurance policy providing coverage for preexisting conditions.

Review of this cause is upon the whole record, and this court will not reverse the trial court's judgment if that judgment is correct, even though such judgment is based upon an incorrect or insufficient basis, see Spires v. Lawless, 493 S.W.2d 65 (Mo.App.1973).

Pending this appeal, respondent filed a motion for damages for frivolous appeal pursuant to Rule 84.19. The motion was ordered taken with the case. The motion is taken up, overruled and the request for damages sought therein is denied.

These proceedings were initiated in associate circuit court. Respondent filed its responsive pleading denying coverage and the issues were joined. Judgment was entered for appellant, and respondent appealed the matter to the circuit court. Pending disposition in circuit court, discovery proceedings were completed. Both parties filed motions for summary judgment. The circuit court entered summary judgment for respondent insuror and this appeal followed.

The discovery proceedings by respondent included the deposing of appellant and Dr. Louis Manuel, attending physician for dependent son of appellant. The discovery revealed that appellant's son had suffered from an eye impairment since 1968 and had been treated by Dr. Manuel for the disorder. The policy of insurance originated through appellant's completion of an application referred to as an enrollment card dated June 15, 1976. This enrollment card, in addition to requiring the identification of the name insured (appellant) and dependents of the named insured, called for the disclosure of any preexisting physical conditions of the named insured and dependents for a preceding five (5) year period. Disclosure of any impairment due to illness or injury was requested. The enrollment card provided for a yes/no block answer format in response to the questions asked. The pertinent questions asked on the form, along with the responses thereto, are shown as follows:

"3. Have you (or your eligible dependents) consulted or been treated by a physician surgeon, or other practitioner in the last five years? /x/Yes / /No 5. Do you (or your eligible dependents) have any physical impairment or deformity or reason to believe you are not in sound physical condition? / /Yes /x/No"

In a provided space upon the enrollment card, explanation of any preexisting illness or injury was requested. The only entry referenced was a prior physical examination of appellant insured. No reference or explanation concerning appellant's dependents was provided.

The record further reveals that appellant's son was seen by Dr. Manuel on June 4, 1973, January 24, 1975, August 26, 1975, September 20, 1975, October 17, 1975, November 7, 1975, February 21, 1976, January 4, 1977 and January 13, 1977, at which time Dr. Manuel performed an evisceration upon the left eye of appellant's son.

Appellant made claim under the policy. During the processing of the claim, appellant was asked to disclose the name and address of the school which his son attended. Appellant responded to the request by a handwritten note affixed to the bottom of respondent's letter. The pertinent part of this letter read, "He (appellant's son) had to drop out because he could not read because of pain in the left eye. He has been treated by Dr. Manuel continuously ..."

Respondent continued its inquiry into the prior eye condition of appellant's son and on June 1, 1977, respondent informed appellant by letter that it was denying the claim. This letter included a reprint of two sections of the policy. These two sections were E-4 Essential Data and E-5 Misstatement of Essential Data. The letter further advised appellant that when he signed the application (enrollment card), no prior treatment for his son was indicated. The letter advised appellant that information secured from Dr. Manuel (the enrollment form authorized respondent access to all medical records of appellant and appellant's dependents) showed appellant's son to have been under Dr. Manuel's care since 1974, and that such care was for a condition which, if same had been disclosed, would have led to the declination of coverage for appellant's son.

Following this letter, appellant appealed the claim denial, and the matter in its entirety was reviewed by respondent's Medical Director who, after review, affirmed the previous denial.

This action then followed and appellant sought recovery upon and for medical expenses, along with damages for refusal to pay for medical treatment attending to and "as a result of severe pain in the left eye originating after January 1, 1977."

In response to the original petition, respondent alleged an affirmative defense of no policy coverage due to a misrepresentation of a material fact upon application for coverage. Motions for summary judgment by both parties followed. Included within respondent's motion were references to treatments (and dates) by Dr. Manuel for appellant's son. In addition, attached thereto were the personal affidavits of respondent's Medical Director and Senior Medical Underwriter. These affidavits verified personal knowledge of the medical history and condition of appellant's son ascertained from hospital records, physicians records and testimony upon oath of Dr. Manuel.

Appellant disputes the validity of the above-referred-to affidavits, and further argues the existence of a genuine issue of fact as a result thereof, in addition to the fact that coverage exists under yet another portion of the policy. These two broad-based arguments encompass appellant's points alleged on this appeal.

It is argued by appellant that upon consideration of appellant's deposition and affidavit, such evidence conflicted with the evidence offered by respondent. It is further argued by appellant that such conflict gives rise to the existence of a genuine issue of fact between the parties and hence, the trial court could not enter a motion for summary judgment in respondent's favor. In support of this argument, appellant relies upon Morris v. Continental Casualty Company, 423 S.W.2d 42 (Mo.App.1967). The Morris case does not control in the instant proceeding because the court, in Morris, concluded that a genuine issue of fact did exist because the claim presented by the insured was based upon a condition which arose subsequent to the effective date of the policy. In the instant proceeding, when the motions, affidavits and depositions are read in their entirety, it is evident that the condition for which appellant's dependent was treated predated the effective date of the policy. As will be observed infra, appellant claims a further genuine issue of fact existed between the parties by direct attack upon the supporting affidavits filed by respondent.

From the outset, the point should be made that no evidence exists upon this record, and it is not even suggested, that any fraudulent misrepresentation is alleged involving appellant. Indeed, the contrary is clearly pointed out in the following excerpt from respondent's suggestion in support of its motion for summary judgment. This excerpt reads,

"... is not claiming that plaintiff appellant intentionally or fraudulently misstated, omitted or misrepresented the essential information sought by the subject Enrollment Card."

The trial court correctly ruled that as a matter of law, there existed no genuine issue of fact in dispute as between the...