Francis v. AMERICAN BANKERS LIFE ASSUR. CO.

• Decision Date: 13 December 2004
• Docket Number: No. 2003-599-Appeal.,2003-599-Appeal.
• Citation: 861 A.2d 1040
• Parties: Nellie S. FRANCIS v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA.
• Court: Rhode Island Supreme Court

861 A.2d 1040

Nellie S. FRANCIS v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA.

No. 2003-599-Appeal.

Supreme Court of Rhode Island.

December 13, 2004.

Nellie S. Francis, pro se.

Michael J. Farley, East Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

The plaintiff, Nellie S. Francis,¹ appeals pro se from a Superior Court judgment as a matter of law granted in favor of the defendant, American Bankers Life Assurance Company of Florida, in this action for breach of contract, deceit, and emotional distress. She also appeals from the trial justice's refusal to grant a new trial. Ms. Francis contends that the trial justice erred by granting the defendant's motion for judgment as a matter of law, by denying her motion for judgment as a matter of law, by refusing to send the case to the jury, and by denying her motion for a new trial. The plaintiff further argues that the trial justice abused her discretion by not allowing Ms. Francis to "present" certain medical records to the jury.

This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised on appeal should not summarily be decided. After hearing the arguments of the litigants and examining the record and the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we summarily affirm the judgment entered in the Superior Court.

Facts and Travel

Given the paucity of evidence introduced at trial, many of the facts underlying plaintiff's cause of action must be gleaned from the pleadings and opening statements of both parties. According to Ms. Francis, in March 1994 she received a brochure in the mail from defendant describing the benefits of a policy of mortgage disability insurance. The solicitation included an invitation to call a toll-free number. On May 4, 1994, Ms. Francis responded and applied for a mortgage disability insurance policy.

Ms. Francis testified that she discussed the application form with an employee of American Bankers Life. In addition to providing certain identifying information, Ms. Francis was asked to answer three questions, the first of which was: "During the past 3 years have you had any medical or surgical: 1) advice; or 2) treatment?"

Ms. Francis alleged that defendant's representative advised her that the question related to "medical treatment" for a debilitating disease or long-term illness "like cancer, diabetes, serious sickness. Because everyone who's living naturally has had medical treatment." She said that she therefore answered "no" to the question. American Bankers Life issued an insurance certificate effective July 1, 1994.

In 1995, Ms. Francis submitted an insurance claim under the policy for an alleged neck and leg injury resulting from an automobile accident. During its investigation of the claim, defendant learned that plaintiff previously had been treated by Dr. David L. Cichy, a chiropractor, after an automobile accident on December 12, 1992. She was a patient of Dr. Cichy's from December 1992 until September 1993. In addition, plaintiff was treated at a hospital emergency room in December 1992. American Bankers Life asserts that, after learning of Ms. Francis's previous treatment, it issued the following exclusion endorsement to become part of plaintiff's policy: "With respect to the above named insured, this policy does not cover any loss caused by or resulting from any injury to or disorders of the back or spine including treatment therefore and complications thereof." Consequently, American Bankers Life did not pay Ms. Francis's 1995 disability claim.

In 1997, Ms. Francis submitted another claim to defendant for a shoulder injury incurred when lifting her baby. She was paid benefits for twenty-four days until she was able to return to work.

In 1998, Ms. Francis submitted a third claim to American Bankers Life for disability benefits as a result of being accidentally pushed down a stairway at Hope High School, where she was employed as a teacher. She alleged that she injured her back, neck, left hip, and shoulders, and was unable to work for nearly four years, from October 1998 until September 2002. American Bankers Life denied plaintiff payment for this claim, citing the exclusion endorsement. Ms. Francis avers that she never received the exclusion endorsement from defendant and that she does not consider it part of her policy. The defendant represented that the exclusion endorsement was mailed to plaintiff via first-class mail when it was added to the policy in 1995.

After failed attempts to resolve the issue with American Bankers Life directly, plaintiff filed a complaint with the Division of Insurance of the Rhode Island Department of Business Regulation. Then, on August 8, 2001, she filed a complaint in Superior Court, alleging breach of contract. In a third amended complaint filed on July 3, 2002, Ms. Francis advanced four grounds for recovery: breach of contract (count 1), deceit (count 2), intentional infliction of emotional distress (count 3), and negligent infliction of emotional distress (count 4). The matter was tried before a jury on July 21 and 22, 2003. At the close of the evidence offered by plaintiff, both parties moved for a judgment as a matter of law pursuant to Rule 50(a) of the Superior Court Rules of Civil Procedure. After hearing the parties' arguments, the trial justice granted defendant's motion, stating:

"Notwithstanding the passion brought to this case by the plaintiff, she has not cleared any of the hurdles necessary to prevail on her motion or to defeat defendant's motion.

"There is a total absence of proof sufficient to support any of plaintiff's claims. Even if, for the sake of argument, that everything represented by plaintiff was accurate and for the purposes of this argument the Court accepts that, there is a complete lack of evidence as to any damages, and for those reasons, plaintiff's motion is denied. Defendant's motion is granted."

A civil judgment on the verdict dismissing plaintiff's complaint was entered on July 22, 2003. The next day Ms. Francis filed a motion for a new trial, as well as a motion for reconsideration. Both motions were heard and denied on September 9, 2003. Later that day Ms. Francis filed a notice of appeal with respect to the judgment as a matter of law. On September 12, 2003, a corrected notice of appeal was filed to include the denial of her motions for new trial and reconsideration.

Discussion

On appeal, Ms. Francis repeats her assertion that she is entitled to payment under the disability insurance policy because an exclusion endorsement was neither added to the policy nor mailed to her until 2000, after she had filed a complaint with the Division of Insurance. She alleges that American Bankers Life then mailed a fraudulent document to her. She posits, therefore, that defendant was obligated to pay her disability benefits under the terms of the original policy. Accordingly, she maintains that she is entitled to judgment as a matter of law on her breach of contract claim.

Ms. Francis also contends that the trial justice erred by granting defendant's motion for judgment as a matter of law, and that the trial justice abused her discretion by not allowing Ms. Francis to "present" certain medical records to the jury. We will address this latter issue first.

Admission of Medical Records

Although the basis of plaintiff's contention that her medical records² were improperly excluded is not entirely clear from her written submissions, it would appear that the thrust of her argument is as follows: She provided such records to defendant in discovery; defendant did not dispute either her medical records or her medical condition and, in fact, relied on her condition in support of its defense that her injuries were excluded from coverage pursuant to the alleged exclusionary endorsement; thus, the trial justice should have allowed the medical records into evidence.³

The plaintiff's argument, however, suffers from a fundamental flaw. The record is devoid of any indication that Ms. Francis even attempted to introduce the medical records at issue into evidence.

"As established by this court, an issue that has not been raised and articulated previously at trial is not properly preserved for appellate review." State v. Gomez, 848 A.2d 221, 237 (R.I.2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I.1991)); accord State v. Markarian, 551 A.2d 1178, 1183 (R.I.1988) ("claims of error are deemed waived unless the specific grounds for the claimed error are effectively raised at trial"). This directive that parties specifically object to perceived errors at trial (the raise-or-waive rule), is well established, and will not be disturbed unless "basic constitutional rights are concerned." Donato, 592 A.2d at 141. In this case, plaintiff had ample opportunity to seek to admit her medical records during the course of the trial. In fact, plaintiff sought to admit the report from Dr. Cichy, a chiropractor, who treated her after the 1992 car accident. The trial justice allowed this report to be admitted as a full exhibit. Neither party attempted to admit any further medical records during the course of the trial. By failing to seek the admission of the medical records in question into evidence, Ms. Francis has waived any claim of error that the trial justice improperly excluded them.

Judgment as a Matter of Law

After plaintiff had rested her case, both parties moved for judgment as a matter of law pursuant to Rule 50(a). However, at that point, defendant had not commenced its case, and had not yet had the opportunity to present any evidence that could form the basis for plaintiff's motion for judgment as a matter of law.⁴ The plaintiff's motion was thus premature and the trial justice properly denied it. We next consider the trial justice's grant of defendant's ...