Mutual Life Ins. Co. of New York v. Bishop

• Decision Date: 16 September 1974
• Docket Number: Nos. 1,3,No. 49363,2,49363,s. 1
• Citation: Mutual Life Ins. Co. of New York v. Bishop, 209 S.E.2d 223, 132 Ga.App. 816 (Ga. App. 1974)
• Parties: MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. Michael L. BISHOP et al
• Court: Georgia Court of Appeals

Page 223

209 S.E.2d 223

132 Ga.App. 816

MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v.Michael L. BISHOP et al.

No. 49363.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 16, 1974.

Rehearing Denied Oct. 8, 1974.

Troutman, Sanders, Lockerman & Ashmore, Allen, E. Lockerman, Jeffrey R. Nickerson, Atlanta, for appellant.

Scott Walters, Jr., East Point, for appellees.

Syllabus Opinion by the Court

DEEN, Judge.

Michael L. Bishop, an employee of the Carolina Cartage Company, became insured by Mutual Life Insurance Company of New York under a group hospitalization insurance policy, effective June 24, 1972.The policy covered members of his family as well as himself.His wife was hospitalized from June 26 to July 3, 1972 for the removal of an ovarian cyst.The hospital bill was submitted to the insurance company for payment, but it declined to pay on the ground that coverage for these charges was specifically excluded under a policy provision excluding coverage for charges for 'sickness, disease, or bodily injury which required medical care or treatment during the three months immediately preceding the effective date of (Mr. Bishop's) insurance.'

The hospital brought suit against Mr. Bishop to recover its charges and he impleaded the insurance company as a third party defendant.The case came on for trial and the parties stipulated that the hospital was entitled to judgment in the amount sought against Mr. Bishop.The third party claim of Bishop against the insurance company was then tried by a jury.At the close of all of the evidence each party moved for a directed verdict.The motion of the insurance company was denied and that of Mr. Bishop was granted, and the jury, by direction, returned a verdict against the company for the amount of the hospital charges, with interest.Appellant then moved for a judgment n.o.v., under Code Ann. § 81A-150(b), and that motion was denied.Held:

1.The burden of demonstrating that a fact situation comes within the exclusionary clause of an insurance policy is on the insurer.Independent Life &c. Ins. Co. v. Thornton, 102 Ga.App. 285, 290, 115 S.E.2d 835;Ga. Farm Bureau &c. Co. v. Coleman, 121 Ga.App. 510, 512, 174 S.E.2d 351;Atlas Assur. Co. v. Lies, 70 Ga.App. 162, 27 S.E.2d 791;Burke v. Life Ins. Co. of Ga., 104 Ga.App. 865, 869, 123 S.E.2d 426.Where, under Georgia law, construction of the policy is necessary, 'exclusions from coverage are construed against the insurer and in favor of providing the indemnities sought.'Dorsey v. State Mutual Life Assur. Co. of Worcester, Mass., D.C., 238 F.Supp. 391.

2.The employee's group hospitalization insurance policy under which the plaintiff's wife was covered by its terms excludes 'a sickness, disease or bodily injury which required medical care or treatment during three months immediately preceding the effective date of the individual's insurance' but specifically does not exclude 'a three-month period ending while the individual is insured . . . and during which he incurred no medical care or treatment expenses in connection with' the infirmity.Bishop's employment commenced on May 1, 1972; the insurance premium was withheld from his wages and the policy, when it arrived, carried a commencement date of June 24.Coverage was denied under this exclusion for the state reason that 'Mrs. Bishop was first treated for this condition on June 6, 1972.Since coverage was not effective until June 24, 1972, no benefits are payable.'

The uncontradicted evidence is that Mrs. Bishop consulted her family physician in September, 1971, at the time of her marriage; he found her in good health except for a weight problem, and put her on a diet and ovulation pills.She went back for a checkup on June 6; at that time the physician suspected that her stomach enlargement was due to one of two pathological causes and told her to come in for testing on June 20.She underwent various tests on this date as a result of which a decision to operate was made; on June 26she was hospitalized and a 22-pound ovarian tumor subsequently removed.This latter date was two days after the policy became effective.

Did the examination on June 6 and the tests administered on June 20 constitute 'medical care and treatment' within three months of the inception date so as to exclude coverage?These words generally refer to something done in the application of the curative arts, whether by drugs or other therapy, with the end in view of alleviating a pathological condition.Thus surgery, in its extended sense, may constitute 'care and treatment' when a mere examination or evaluation does not.It was held in Fisher v. Rhoades Construction Co., 190 Kan. 448, 633, 375 P.2d 771(1) that an employee in a workmen's compensation case who went to a physician for purposes of examination and evaluation, the doctor subsequently testifying in the employee's behalf, did not receive 'medical treatment and care' from the examination, the evaluation, or the testimony.Where the purpose of the two preoperative visits was for diagnostic and evaluation purposes only, with no treatment involved, we hold that they alone were insufficient to bring the expenses of otherwise insured operation within the exclusionary clause.

3.The parties agreed to the allowance of, and the insurer introduced in evidence, a statement of the physician which reads in part: 'Mrs. Bishop came to our office on June 6, 1972, for a routine examination and not because of any complaint referable to sickness, disease, or bodily injury.She was not seen on June 20, 1972, for any medical care or treatment for any sickness, disease, or bodily injury.The latter was an evaluation of incidental findings.Technically, her treatment began with her surgery on June 28, 1972.It should be understood that the visit on June 20, 1972, was for pre-operative evaluation for the surgical treatment on June 28, 1972.Having seen her in this office on January 4, 1972, for routine visit for a prescription of Ovulen, and having no evidence of disease at that time, I have no reason to feel that this patient was aware, in any way, of any problem in her health at the time of her visit to me in June, 1972.'

This statement agrees with the testimony of Mrs. Bishop.It factually iterates the reason why the physician set up the appointment and the procedures which he followed.It is not a mere conclusion to be disregarded, for only the doctor has complete knowledge of what he did or his reasons for doing it.The insurer offered the statement and no evidence was produced to contradict it.Accordingly, the direction of the verdict in favor of the third-partyplaintiff is without error.

Judgment affirmed.

BELL, C.J., and QUILLIAN, EVANS, and WEBB, JJ., concur.

EBERHARDT and PANNELL, P. JJ., and CLARK and STOLZ, JJ., dissent.

EBERHARDT, Presiding Judge (dissenting).

Dr. Wilson, the attending physician, asserted by letter that he examined Mrs. Bishop on June 6, 1972, found her abdomen to be disproportionately extended as compared to her extremities.'I questioned her about this.I am satisfied that this patient was unaware that there was a problem in her abdomen at the time of her examination, and her only observation had been on questioning that she did not seem to lose weight in her abdomen as quickly as elsewhere.At the time of that examination, abdominal pelvic examination revealed fluid in the abdomen.The differential diagnosis of acites versus ovarian cyst was made.Subsequent evaluation with SMA-12, CBC, Urine and Liver Package indicated that this was indeed most likely an overian cyst, and she was advised to have surgical removal.She was scheduled for preoperative examination on June 20, 1972, at which time a complete examination was carried out in preparation for surgery.She underwent surgical removal of the ovarian cyst on June 28, 1972.

'In summary, in regard to the more specific questions that you have raised, Mrs. Bishop came to our office on June 6, 1972 for a routine examination, and not because of any complaint referable to sickness, disease or bodily injury.She was not seen on June 20, 1972 for any medical care or treatment for any sickness, disease or bodily injury.The latter was an evaluation of incidental findings.Technically, her treatment began with her surgery on June 28, 1972.It should be understood that her visit on June 20 was for preoperative evaluation for the surgical treatment on June 28, 1972.

'Having seen her in this office on January 4, 1972, for a routine visit for a prescription of Ovulen, and having no evidence of disease at that time, I have no reason to feel that this patient was aware, in any way, of any problem in her health at the time of her visit to me in June, 1972.'

The questions raised by enumerated error 1 are whether a doctor may, in effect, interpret the language of an insurance policy providing an exclusion from coverage; whether the language of the exclusion is phrased in technical words, or words of art, what the word 'required' in the exclusion means, whether the language of the exclusion is purely for interpretation by the courts, and whether introduction of the doctor's letter by the defendant works an estoppel against it to contend that the contact which Dr. Wilson had with Mrs. Bishop June 6, June 20 and June 24 was 'medical care and treatment' contrary to the doctor's assertions.

1.If the doctor is, in effect, giving a legal opinion in the letter for use in interpreting the contract, it goes beyond permissible limits of testimony and should not be considered.SeePlaza Hotel Co. v. Fine Products Corp., 87 Ga.App. 460, 462, 74 S.E.2d 372.Construction of all contracts, even an ambiguous one, is for the court, and this applies to insurance contracts as well as to others.Davis v. United American Life Ins. Co., 215 Ga. 521(2), 111 S.E.2d 488.If there is no ambiguity the contract needs no construction and it is the duty of the court to apply the contract as...