McCoy v. Blue Cross and Blue Shield of Utah, 981246-CA

• Citation: 980 P.2d 694
• Decision Date: 17 June 1999
• Docket Number: No. 981246-CA,981246-CA
• Parties: 371 Utah Adv. Rep. 19, 1999 UT App 199 Gerald McCOY, individually and as personal representative of the estate of Frieda McCoy, deceased, Plaintiff and Appellee, v. BLUE CROSS AND BLUE SHIELD OF UTAH, a Utah corporation, Defendant and Appellant.
• Court: Court of Appeals of Utah

Page 694

980 P.2d 694

371 Utah Adv. Rep. 19, 1999 UT App 199

Gerald McCOY, individually and as personal representative of the estate of Frieda McCoy, deceased, Plaintiff and Appellee, v. BLUE CROSS AND BLUE SHIELD OF UTAH, a Utah corporation Defendant and Appellant.

No. 981246-CA.

Court of Appeals of Utah.

June 17, 1999.

Andrew H. Stone and James E. Magleby, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellant.

Paul M. Simmons, David R. Olsen, and Jeffrey D. Eisenberg, Dewsnup King & Olsen, Salt Lake City, for Appellee.

Before WILKINS, P.J., GREENWOOD, Associate P.J., and BENCH, J.

OPINION

WILKINS, Presiding Judge:

¶1 Defendant Blue Cross and Blue Shield of Utah (Blue Cross) appeals the trial court's order denying its motion to compel arbitration. We affirm.

BACKGROUND

¶2 In October 1985, Gerald McCoy purchased a health insurance policy known as the Qualifier I plan (the plan) from Blue Cross. Under the terms of the plan, Blue Cross reserved "the absolute right to modify or amend this [a]greement from time to time provided, however, that no such modification or amendment shall be effective until thirty (30) days after written notice thereof has been given to the [s]ubscriber." The plan further provided that "[a]ny notice ... shall be deemed to have been given to and received by the [s]ubscriber when deposited in the United States Mail with first class postage prepaid and addressed to the [s]ubscriber at the address shown in the records of the [p]lan."

¶3 At the time Mr. McCoy purchased the plan, it did not contain an arbitration provision. However, Blue Cross later added an arbitration clause, which was to take effect on January 1, 1986. In March 1994, Mr. McCoy's wife was diagnosed with breast cancer. When chemotherapy proved ineffective, Mr. McCoy requested that Blue Cross preauthorize payment for an alternative breast cancer treatment. Blue Cross denied Mr. McCoy's request. Mr. McCoy appealed the decision to Blue Cross's Appeals Committee, which ultimately upheld the denial of preauthorization. In October 1994, Mr. McCoy appealed the Committee's decision to Blue Cross's general counsel, Frank Pignanelli. In January 1995, Mr. McCoy received a letter from Mr. Pignanelli "conclu[ding] that the decision of the Benefit Appeals Committee is correct." The letter also stated that "[i]f you remain dissatisfied with this decision, you have the right to seek binding arbitration of the dispute pursuant to the Rules of the American Arbitration Association. The Customer Service Department can assist you with information about how to initiate and participate in arbitration." Mr. McCoy asserts that this letter was the "first [time he] received notice that his policy purportedly provided for arbitration."

¶4 In February 1997, Mr. McCoy brought suit against Blue Cross alleging various claims arising out of Blue Cross's refusal to provide coverage for treatment of his wife's breast cancer. Blue Cross responded by filing a motion to compel arbitration and stay the proceedings. A hearing was held in August 1997 to determine whether "the arbitration provision enacted by [Blue Cross] after [Mr. McCoy and Blue Cross] contracted compels [Mr. McCoy] to arbitrate."

¶5 The main issue before the trial court was whether Blue Cross complied with the plan's notice requirement by sending a written notice of the arbitration provision to Mr. McCoy. Blue Cross offered several affidavits stating that between 1985 and 1990 it mailed three separate notices of the arbitration provision to all persons enrolled in the plan. However, Mr. McCoy denied receiving these mailings and argued that the evidence presented by Blue Cross failed to establish that Blue Cross actually sent Mr. McCoy written notice of the arbitration provision. Thus, Mr. McCoy asserted the arbitration provision was invalid because he could not agree to a provision of which he was unaware.

¶6 At the conclusion of the hearing, the trial court ordered a continuance and requested supplemental briefing on the issue of whether Mr. McCoy "waive[d] any objection to arbitration he may have had after being notified in January of 1995 that arbitration was going to be required [by] continu[ing] to pay insurance premiums and [remain] covered by Blue Cross for at least two years thereafter." The trial court also stated that Blue Cross was "entitled to" submit additional affidavits as evidence that it sent written notice of the arbitration provision to Mr. McCoy.

¶7 When the hearing resumed in February 1998, the trial court had before it additional affidavits submitted by Blue Cross and heard arguments from both parties regarding whether Blue Cross adequately complied with the plan's notice requirement. On February 26, 1998, the trial court entered findings of fact, conclusions of law, and an order denying Blue Cross's motion to compel arbitration. The trial court ruled that Blue Cross had failed to establish that it sent Mr. McCoy notice of the arbitration provision and "[c]onsequently, Blue Cross [could not] apply the arbitration amendment to him." The trial court did not explicitly rule on Blue Cross's argument that Mr. McCoy waived any objection to the arbitration clause by failing to cancel his policy after being notified of the arbitration provision. Blue Cross appeals.

ISSUE AND STANDARD OF REVIEW

¶8 Blue Cross assails the trial court's conclusion that Blue Cross failed to establish a valid arbitration agreement between the parties. First, Blue Cross contends that it presented sufficient evidence to establish the arbitration provisions were mailed to Mr. McCoy, thus creating a binding arbitration agreement between the parties. Second, Blue Cross argues that Mr. McCoy's failure to object to the arbitration provision for approximately two years after he became aware of the arbitration provision constitutes an acceptance of its terms.

¶9 In reviewing the trial court's decision, we must first identify the appropriate standard of review. The parties disagree on this court's scope of review. Blue Cross contends that we should review the trial court's determination that Blue Cross failed to establish the existence of a valid arbitration agreement de novo. Mr. McCoy insists that the more deferential standard of abuse of discretion is appropriate.

¶10 We conclude that Cade v. Zions First National Bank, 956 P.2d 1073 (Utah Ct.App.1998), controls this case. In Cade, the trial court determined that the parties had agreed to submit their disputes to arbitration. See id. at 1076. The trial court based this determination on documentary evidence without conducting an evidentiary hearing on the disputed facts. See id. We stated that "[b]ecause this conclusion was a legal one, we review it for correctness." Id.; see also Reed v. Davis County Sch. Dist., 892 P.2d 1063, 1064 (Utah Ct.App.1995)(stating that determination of whether valid arbitration agreement exists is a question of law). In this case, the trial court also based its denial of Blue Cross's motion on affidavits and other documentary evidence without conducting an evidentiary hearing. This decision was a legal conclusion and therefore, we review it for correctness, according no particular deference to the trial court's decision.

ANALYSIS

¶11 Parties are required to arbitrate only those disputes they have agreed to submit to arbitration. See Utah Code Ann. § 78-31a-4(1) (1996). Thus, a court deciding a motion to compel arbitration must first determine whether the parties agreed to arbitrate, and if so, whether the agreement encompasses the claims asserted. See id. In this case, Mr. McCoy does not dispute the applicability of the arbitration provision to his claims. Accordingly, we need only determine whether Blue Cross established a binding agreement to arbitrate.

¶12 Blue Cross argues that the trial court's ruling was erroneous because Blue Cross established the existence of a valid agreement to arbitrate. More specifically, Blue Cross contends the affidavits it submitted demonstrate that it complied with the plan's notice requirement by mailing a letter which included the arbitration provision to Mr. McCoy. We disagree.

1. Notice

¶13 A fundamental tenet of the law of contracts between an insured and insurer is that "insurance policies should be strictly construed against the insurer and in favor of the insured." United States Fidelity & Guar. Co. v. Sandt, 854 P.2d 519, 522 (Utah 1993). Under this principle, an insurer is required to strictly comply with all provisions that give an insured notice of the terms, conditions, limitations or changes to an insurance policy. See Majernicek v. Hartford Cas. Ins. Co., 240 Conn. 86, 688 A.2d 1330, 1334 (1997) (stating when written notice is required, "an insurer must comply strictly with policy provisions").

¶14 In this case, Blue Cross reserved the absolute right to modify or amend the policy by providing "written notice ... to the [s]ubscriber." However, any modification or amendment to the plan did not become "effective until thirty (30) days after ... [the notice] has been given to the subscriber." The plan further provided that "[a]ny notice ... shall be deemed to have been given to and received by the [s]ubscriber when deposited in the United States Mail with first class postage prepaid and addressed to the [s]ubscriber at the address shown in the records of the [p]lan." Because the arbitration agreement was an amendment to Mr. McCoy's insurance policy, it is only binding on Mr. McCoy if he was afforded proper notice of the amendment. Therefore, we first address whether Mr. McCoy received adequate notice in compliance with the terms of the plan's notice provision.

A. Proof of Mailing

¶15 Under the plan's notice provision, Blue Cross was required to provide written notice to specific subscribers of changes to their policy. More specifically, Blue Cross was required to mail the notice with first class postage to a subscriber at his or her address of record....