LoCicero v. Hartford Ins. Group, 86-1356

• Decision Date: 01 February 1988
• Docket Number: No. 86-1356,86-1356
• Parties: Vincent R. LoCICERO 1 v. The HARTFORD INSURANCE GROUP.
• Court: Appeals Court of Massachusetts

Page 530

518 N.E.2d 530

25 Mass.App.Ct. 339

Vincent R. LoCICERO ¹ v. The HARTFORD INSURANCE GROUP.

No. 86-1356.

Appeals Court of Massachusetts Middlesex.

Argued Nov. 12, 1987.

Decided Feb. 1, 1988.

John K. Leslie, Chelmsford, for plaintiff.

Jacqueline Y. Parker (Richard L. Neumeier, Boston, with her), for defendant.

Before GREANEY, C.J., and CUTTER and KASS, JJ.

KASS, Justice.

Upon motion of the defendant, The Hartford Insurance Group (Hartford), a judge of the Superior Court ordered summary judgment dismissing the action. The plaintiff's primary complaints were that Hartford had failed entirely to pay certain claims made by the plaintiff on a health care insurance policy covering the plaintiff and his wife, June, and that, as to other claims which Hartford had ultimately acknowledged, it had been impermissibly tardy in paying them. The secondary complaints flowed from the primary ones; they alleged violations of c. 93A and c. 176D, consequential injury, and loss of consortium.

1. Extent of coverage for rehabilitative care. Mrs. LoCicero suffered a severe cerebral hemorrhage on September 14, 1983. For three months she was hospitalized for acute care in St. Joseph's hospital in Lowell, an institution to which, after four months of rehabilitative care, she returned for treatment of pneumonia. After her second discharge, Mrs. LoCicero became a patient at The Greenery, a health care institution in Brighton which has a program of aggressive rehabilitation therapy for patients with brain injury. The level of reimbursement to which the LoCiceros are entitled for the cost of care at The Greenery is the largest dollar issue between the parties. Under the health insurance policy which covered the LoCiceros, Hartford agrees (nuances aside) to reimburse in full charges levied by a hospital. In the case, however, of a convalescent hospital, Hartford will pay (again, nuances aside) one-half "the most common daily charge for semi-private accommodations in the hospital in which the individual was confined immediately preceding confinement in the convalescent hospital." Hartford applied the "convalescent hospital" rate to The Greenery, which resulted in $10,545 less than full reimbursement for the period in question.

LoCicero sets up his difference with Hartford's characterization of The Greenery as a convalescent hospital as a dispute over a material fact. At the time Hartford's motion for summary judgment was brought forward for resolution, the judge had before him the pleadings, answers to Hartford's interrogatories, an affidavit in support of the motion for summary judgment, and a counter affidavit from LoCicero. ² Those documents disclose no controversy about the nature of the medical services rendered at The Greenery. The controversy, rather, is about which category defined in the insurance contract pertained to The Greenery. ³ Construing the insurance contract, therefore, is a question of law for the court. Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). Jefferson Ins. Co. v. Holyoke, 23 Mass.App.Ct. 472, 475, 503 N.E.2d 474 (1987). See Rew v. Beneficial Standard Life Ins. Co., 41 Wash.2d 577, 581, 250 P.2d 956 (1952) (question whether nursing home was a hospital within the coverage of the policy is one solely of law).

A "hospital," under the definition in the Benefits Book (1982) (see note 3) is "an institution which meets all of the following tests. (a) ... maintains diagnostic and therapeutic facilities for surgical and medical diagnosis and treatment.... In no event ... will the word 'hospital' include ... a convalescent hospital." The Benefits Book proceeds to define a "convalescent hospital" as "an institution ... which 1. provides ... 24-hour skilled nursing service ... and 5. qualifies as an 'Extended Care Facility' under the Health Insurance provided by Title XVIII of the Social Security Act as amended."

It is undisputed that The Greenery is a 200-bed skilled nursing center which maintains a specialty of rehabilitating head-injured patients. The facility is licensed as a skilled nursing center. On its letterhead it announces that it is a "Medicare approved extended care facility." The Greenery maintains no surgical service. The highly valuable function which it performs is to give post-acute treatment. Diagnosis and surgery occurred at St. Joseph's Hospital. There Mrs. LoCicero received neurological examination including a computerized tomography (CT) scan and a left frontal temporal craniotomy. After discharge for rehabilitative and chronic care, she developed the pneumonia which required her readmission to St. Joseph's Hospital. Following that second acute phase, she went to The Greenery. Care at The Greenery goes beyond merely making the patient comfortable; there is an effort at restoration of brain function through stimuli and physical therapy. That care is long term, in the quite orthodox sense of convalescence, i.e., a gradual return to health. See American Heritage Dictionary 319 (2d college ed. 1982); Webster's Third New Intl. Dictionary 497 (1971). We conclude that Hartford correctly placed The Greenery in the category of convalescent hospital. See McManus v. Equitable Life Assur. Soc., 583 S.W.2d 271, 272-273 (Mo.Ct.App.1979); Taylor v. Phoenix Mut. Life Ins. Co., 453 F.Supp. 372, 379-380 (E.D.Pa.1978); Rew v. Beneficial Standard Life Ins. Co., 41 Wash.2d at 582-583, 250 P.2d 956. There is no ambiguity in the contract provisions on this score. See Kolligian v. Prudential Ins. Co. of America, 353 Mass. 322, 324, 231 N.E.2d 381 (1967).

Prescinding from the question whether it was properly before the motion judge, we think that the plaintiffs can draw no comfort from the 1984 certificate of insurance and the accompanying Benefits Book. The 1984 Benefits Book contains a broader definition of "hospital"; indeed, it expressly includes a "rehabilitative hospital." The onset of Mrs. LoCicero's illness, it will be recalled, occurred September 14, 1983. Increased benefits conferred in 1984, even by the terms of the 1984 Benefits Book, do not apply to preexisting illnesses "until [the dependent] is discharged from the hospital or place of confinement; and he has engaged in the normal activities of a healthy person of the same age and sex for a period of at least 15 days in a row."

2. Failure to pay promptly. LoCicero's complaint contains a generalized allegation of failure to pay certain claims within a reasonable time. From correspondence attached as exhibits to Hartford's affidavit in support of summary judgment one learns that the late payment items were nine in number. As to those items Hartford asked for itemized bills which provided information about the dates the services or materials were furnished. That information was supplied by LoCicero's lawyer under letter dated April 24, 1985. It is a substantially different list (consisting of eight creditors) from that compiled March 1, 1985, by Hartford in its request for back-up information. We may take it as expressing LoCicero's then-current demands. As to five of those eight persons who furnished services or materials, Hartford, in a reply made May 20, 1985, responded that it had not received the original claim and reported, further, that the claims were now paid. As to a sixth, Hartford reported payment previously made; as to a seventh, a $71 payment for miscellaneous supplies was reported paid; as to the eighth vendor, which was for home service, there was payment to the extent of the insurance limits...