Marek v. Amba Marketing Systems, Inc.
| Decision Date | 11 January 1989 |
| Docket Number | No. 87-15021,87-15021 |
| Citation | 867 F.2d 613 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Judith MAREK, a single woman, Plaintiff-Appellant, v. AMBA MARKETING SYSTEMS, INC., Affiliates Employee's Benefit Trust; Amba Marketing Systems, Inc., a/k/a Ambassador International, Inc.; C.P.S. Direct Marketing, Inc.; Carson Pirie Scott & Co., a/k/a Carson Pirie Scott Computing Systems, Inc.; Fred S. James & Company of Arizona; Galbraith & Green, Inc., Hartford Life & Accident Company McDonald Co., Inc.; William S. McDonald, husband; Mrs. William S. McDonald, wife; David G. Pinch, husband; Deborah Pinch, wife; Lynne A. Swindell; Mr. Swindell; James G. Tuton, husband; Mrs. James G. Tuton, wife; Bruce C. Vogel, husband; Mrs. Bruce C. Vogel, wife; Hartford Accident & Indemnity Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before HUG, TANG and BOOCHEVER, Circuit Judges.
Mrs. Marek appeals from a summary judgment against her on her complaint for benefits under her ERISA health plan. The trustees of her health plan denied her claim for benefits on the basis that the condition for which she was treated was a pre-existing one excluded under the plan. The material facts were undisputed, and the district court ruled that the trustees' denial of Marek's claim was not arbitrary and capricious.
Marek argues that where it appears that the trustees of an ERISA plan have loyalties inconsistent with their duties to the beneficiaries, we should apply a less deferential standard of review than the traditional "arbitrary and capricious" standard under which actions of the trustees of ERISA plans are normally reviewed. See, e.g., Music v. Western Conference of Teamsters Pension Trust Fund, 712 F.2d 413, 418 (9th Cir.1983). Marek relies on Bruch v. Firestone Tire and Rubber Co., 828 F.2d 134 (3d Cir.1987), cert. granted, 108 S.Ct. 1288 (1988). In that case, whose disposition is now pending in the Supreme Court, the Third Circuit held that because the plan administrator was the company itself, the plan was unfunded, and the benefits would be paid directly by the company, the administrator's decision should be reviewed de novo. Bruch, 828 F.2d at 136.
In this case we need not decide whether and under what circumstances a less deferential standard of review should be applied to a decision of the trustee of an ERISA plan, because even under a de novo standard we conclude that the trustees' decision was not erroneous.
The material facts are not disputed. On November 1, 1983 Marek began participating in a health plan. The plan contained the following exclusion:
No payments are made for a pre-existing condition from the effective date of the Covered Person's coverage under the Plan until the first of the following dates:
(a) the date of expiration of six (6) consecutive months commencing after the effective date during which no treatment or service for the injury, illness, or pregnancy is received; or
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A pre-existing condition was defined as:
any condition for which the individual received medical treatment, diagnosis, consultation, or prescribed drugs or medicines due to an illness or injury during the six (6) months preceding the effective date of his/her coverage under this Plan.
Thus, coverage was excluded during the first six months of coverage for conditions for which Marek had received treatment, diagnosis, a consultation, or prescription drugs between May 1, 1983 and October 31, 1983. Marek was seen by Dr. Davis on August 26, August 31, and September 7, 1983. Dr. Davis treated her for a colitis condition which was diagnosed as either ulcerative colitis or Crohn's disease. Other doctors concurred in this diagnosis. Dr. Davis prescribed Azulfidine to treat this condition.
Marek argues that because she did not know which of the two specific types of colitis she had until after the onset of insurance, her Crohn's disease was not a pre-existing condition. The plan's definition of pre-existing condition, however, does not require knowledge of the specific name of the disease. Marek has not cited, and our research has not revealed, any case which has said that a condition is not in existence, for the purposes of the pre-existing conditions clause in a health plan, until the covered individual knows the specific name of the disease.
The general view is that a condition is in existence for this purpose when it becomes active or manifests itself. See e.g., Metropolitan Life Ins. Co. v. Reynolds, 48 Ariz. 205, 60 P.2d 1070, 1073 (1936). "A majority of the cases recognize that a sickness should be deemed to have its inception at the time it first manifested itself or became active, or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness." Preferred Risk Life Ins. Co. v. Sande, 421 So.2d 566, 568 n. 1 (Fla.Dist.Ct.App.1982) (citing Annot., 94 A.L.R.3d 990, 998 (1979)); see Malone v. Continental Life and Accident Co., 89 Idaho 77, 403 P.2d 225, 228 (1965); Craig v. Central Nat'l Life Ins. Co., 16 Ill.App.2d 344, 148 N.E.2d 31, 36 (Ill.App.Ct.1958); Bishop v. Capitol Life Ins. Co., 218 Kan. 590, 545 P.2d 1125, 1127 (1976); Jackson v. Pacific Mut. Life Ins. Co., 308 S.W.2d 291, 293 (Mo.App.1957); Rosenberg v. North Dakota Hosp. Serv. Ass'n, 136 N.W.2d 128, 131 (N.D.1965); Hannum v. General Life and Accident Ins. Co., 745 S.W.2d 500, 501 (Tex.Ct.App.1988).
A condition can manifest itself or become active before a specific diagnosis is made. Indeed, the often...
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