Mannino v. Agway Inc. Group Trust

• Decision Date: 19 July 1993
• Parties: Lillian MANNINO, Respondent, v. AGWAY INC. GROUP TRUST, Defendant, Blue Cross and Blue Shield of Central New York, Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 723

600 N.Y.S.2d 723

192 A.D.2d 131

Lillian MANNINO, Respondent, v. AGWAY INC. GROUP TRUST, Defendant, Blue Cross and Blue Shield of Central New York, Inc., Appellant.

Supreme Court, Appellate Division,

Second Department.

July 19, 1993.

Bond, Schoeneck & King, Syracuse (Jonathan B. Fellows, of counsel), for appellant.

Ciarelli & Dempsey, Melville (John L. Ciarelli, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and LAWRENCE, JJ.

BRACKEN, Justice.

The Supreme Court granted summary judgment in favor of the plaintiff, Lillian Mannino, and declared that the defendant Blue Cross and Blue Shield of Central New York, Inc., is obligated to indemnify her against all costs related to a bone marrow transplant which was needed in order to treat a disease, i.e., leukemia, which she had contracted before the effective date of the defendant's health insurance policy. The appellant, on appeal, argues that the plaintiff's leukemia was a "pre-existing condition" within the meaning of an exclusionary clause contained in the governing health insurance policy, and that summary judgment should instead have been granted to it. We affirm.

I

On June 1, 1990, the appellant Blue Cross and Blue Shield of Central New York, Inc., entered into an insurance agreement with Joseph Mannino, an enrollee in a group health insurance plan sponsored by Mr. Mannino's employer, Agway, Inc. There is no dispute that by virtue of this agreement the plaintiff, Lillian Mannino, obtained health insurance coverage effective June 1, 1990.

On April 3, 1990, approximately two months before the effective date of the health insurance policy under review in this case (June 1, 1990), the plaintiff visited Dr. Robert Semlear. She complained of pain in her abdomen and told Dr. Semlear that she had been urinating frequently. Dr. Semlear drew a blood sample and planned a more comprehensive examination for a later date. The results of this blood test showed an elevated white blood cell count of 19,200.

On May 25, 1990, six days before the effective date of the policy, the plaintiff returned to Dr. Semlear. At this time, Dr. Semlear drew a second blood sample. Analysis of this sample indicated a white blood count of 20,600. Dr. Semlear then advised the plaintiff to consult another physician, Dr. Louis J. Avvento. There is no proof that the problems about which the plaintiff was complaining (frequent urination, abdominal pains) were symptoms of leukemia.

According to the plaintiff's affidavit in support of her motion, "Dr. Semlear made no mention of any possible diagnosis of an illness from which he thought [she] was suffering". In his affidavit, Dr. Semlear stated that on May 25, 1990, he referred the plaintiff to Dr. Avvento, "without conducting a physical examination, making any diagnosis of a possible illness, or giving any medical advice related to leukemia, or recommending any treatment for this illness or its symptoms". He also stated, "I did not, at any time, give any medical advice related to leukemia to [the plaintiff], nor did I provide nor [sic] recommend any treatment for this illness or its symptoms".

On May 31, 1990, one day before the effective date of the policy, the plaintiff saw Dr. Avvento. In his affidavit, Dr. Avvento stated, "[m]y impression after [the plaintiff's] first visit on May 31, 1990 was a leukocytosis of undetermined etiology". Dr. Avvento advised the plaintiff to undergo a bone marrow aspiration and biopsy, as well as a chromosome study. Dr. Avvento also stated that, as of his examination of May 31, 1990, the plaintiff was "asymptomatic".

As noted above, the group insurance policy under review in this case went into effect on June 1, 1990, one day after Dr Avvento had advised the plaintiff to undergo these additional tests.

On June 7, 1990, a bone marrow aspiration and biopsy was performed. According to Dr. Avvento, "[t]he results * * * were highly suggestive of a myeloproliferative disorder such as chronic myeloid leukemia". This presumptive diagnosis was confirmed by the results of the chromosome analysis, which were reported on July 3, 1990. The chromosome analysis of the bone marrow aspiration "detected the classic Philadelphia chromosome molecular rearrangement known as BCR rearrangement". A "definitive diagnosis of chronic myelogenous leukemia" was thus made for the first time on July 3, 1990.

Dr. Avvento averred, in support of the plaintiff's motion, "I did not give any medical advice related to leukemia to [the plaintiff] before June 1, 1990, nor did I provide nor recommend any treatment for this illness or its symptoms prior to that date". The plaintiff thereafter sought treatment for her disease and this treatment included a proposed bone marrow transplant. The appellant refused to provide coverage for this procedure, claiming that the plaintiff's condition was "pre-existing". The Supreme Court concluded that the plaintiff had demonstrated her entitlement to coverage as a matter of law, and this appeal followed.

II

The text of the exclusionary clause at the center of the parties' dispute in this case provides as follows:

"3. Pre-existing conditions. You have to wait 11 months * * * before we will cover services for pre-existing conditions. A pre-existing condition is one for which medical advice was given, treatment was recommended by or received from a health care provider * * * within 12 months before you were covered by this contract".

As will be detailed below, we find that there are three sources of ambiguity in this clause.

A

The first source of ambiguity in the appellant's "pre-existing conditions" clause is syntactical. A reader of this clause might conclude that the exclusion applies only if, within the 12 months prior to the effective date of the policy, the insured person had received both medical "advice" and medical "treatment" (or a recommendation as to treatment). On the other hand, one might just as easily conclude that the exclusion applies only if, within the 12 months prior to the effective date of the policy, the insured person had received either medical "advice" or medical "treatment" (or a recommendation as to treatment). The language of the exclusionary clause lends itself to both of these interpretations because two of the terms essential to the definition of a "pre-existing condition", that is, the term "medical advice" and the term "treatment", are juxtaposed without the mediation of a conjunction (either "and" or "or") necessary in order to define their syntactical relationship.

This grammatical problem would be of no consequence, except that the chronology of the events of this case, outlined above, might lead one to conclude that the plaintiff was an insured person who did receive medical "advice" prior to June 1, 1990, but who did not receive either medical "treatment" or a recommendation as to "treatment" until after June 1, 1990. It is clear that prior to June 1, 1990, both Dr. Semlear and Dr. Avvento were concerned with the plaintiff's abnormal blood test results. Dr. Semlear advised the plaintiff to see Dr. Avvento. Dr. Avvento advised the plaintiff to undergo further tests. This being the case, we conclude that both these physicians gave medical "advice" to the plaintiff prior to June 1, 1990. Whether they gave medical "treatment" as well is a different question.

The case of Bergan v. Time Ins. Co., 196 Ga.App. 78, 395 S.E.2d 361 is illustrative. In that case, the plaintiff had undergone a pelvic ultrasound examination prior to the effective date of a group health insurance policy. Also, a physician had advised her to " 'seriously consider' undergoing an exploratory laparotomy 'to evaluate * * * and if possible, cure the problem' " (Bergan v. Time Ins. Co., supra, 196 Ga.App. 78, 395 S.E.2d 361). It was not until after the effective date of the policy that a laparotomy was performed, revealing low grade cancer of the ovaries.

In holding that the plaintiff was excluded from coverage for the costs of treating this disease, the court applied the literal terms of the governing policy, which excluded coverage for pre-existing conditions. The term "pre-existing condition" was defined as "an illness or injury for which medical care, treatment, medicine, or advice was received during the six month period immediately prior to the effective date" (Bergan v. Time Ins. Co., supra, 196 Ga.App at 79, 395 S.E.2d at 362). Acknowledging that the plaintiff may not have received "treatment", the court concluded that she had received "advice" in the sense that she had been given and had accepted "an opinion or recommendation offered as a guide to action, conduct, etc" (Bergan v. Time Ins. Co., supra, 196 Ga.App at 80, 395 S.E.2d at 363, citing Random House Dictionary of the English Language [2nd ed 1987].

The terms of the policy at issue in Bergan v. Time Ins. Co. supra serve as an instructive contrast to the terms of the policy now under review. In Bergan, as here, the terms "treatment" and "advice" are essential to the definition of the term "pre-existing condition". In Bergan, however, those terms were separated by the disjunctive conjunction "or", so that the meaning of the exclusionary clause was unambiguous (see also, Fischman v. Blue Cross & Blue Shield of Ct., 775 F.Supp. 513). In the present case, the language of the exclusionary clause is ambiguous and can be interpreted in such a way as to exclude coverage only in those cases where the insured was actually treated (or given a recommendation as to treatment) before the effective date of the policy. Since this is the construction of the clause which is most favorable to the insured, it is the construction which must be applied (e.g., Continental Cas. Co. v. Rapid-Am. Corp., 80 N.Y.2d 640, 655, 593 N.Y.S.2d 966, 609 N.E.2d 506; Lavanant v. General Acc. Ins. Co. of Am., 79 N.Y.2d 623, 629, 584 N.Y.S.2d 744, 595 N.E.2d 819; Herbil Holding Co. v. Commonwealth Land Title Ins. Co., 183 A.D.2d...