Short v. Blue Cross & Blue Shield of Kan., Inc., No. 118,688

CourtCourt of Appeals of Kansas
Writing for the CourtArnold-Burger, C.J.
Citation441 P.3d 1058
Decision Date12 April 2019
Docket NumberNo. 118,688
Parties Zachary SHORT, Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Appellee.

441 P.3d 1058

Zachary SHORT, Appellant,
v.
BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Appellee.

No. 118,688

Court of Appeals of Kansas.

Opinion filed April 12, 2019


Matthew L. Bretz, of Bretz & Young, L.L.C., of Hutchinson, for appellant.

David S. Wooding and Anna C. Ritchie, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.

Before Arnold-Burger, C.J., Atcheson, J., and Burgess, S.J.

Arnold-Burger, C.J.:

441 P.3d 1061

The cardinal rule of contract interpretation is to ascertain the parties' intent. If the contract is unambiguous, we determine the parties' intent by the language of the contract alone. But if a contract has ambiguous language, we may consider extrinsic evidence to construe it.

Zachary Short sued Blue Cross and Blue Shield of Kansas (BCBS) for breach of contract after BCBS refused to cover the full cost of a prosthetic leg called the Ottobock X3. The insurance policy provided that BCBS would cover the cost of a basic (standard) device and that it would not cover charges for deluxe or electrically operated devices beyond the extent allowed for a basic (standard) device. BCBS provided evidence that the X3 was electrically operated and thus subject to the limitations in the insurance policy. The district court agreed and granted BCBS's motion for summary judgment.

Short appeals, arguing that the contract is ambiguous and should be construed in a way that would require BCBS to cover the full cost of the X3. He also asserts that he should have been permitted to conduct more extensive discovery and that he should have been allowed to present expert testimony. However, the language in the contract is not ambiguous and electrically operated prosthetics are clearly subject to the limitations. Because the contract was unambiguous, the district court did not err in refusing to allow Short to seek additional evidence through discovery or introduce extrinsic evidence in the form of expert testimony. The decision of the district court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

Short was involved in a catastrophic farming accident in October 2014 which left him severely injured. Short's injuries required him to undergo a bilateral knee amputation, with his left leg amputated above the knee and his right leg below the knee.

At the time of the accident, Short was insured by Blue Cross Blue Shield of Kansas (BCBS). Short sent a pre-service request to BCBS requesting coverage for multiple prosthetics. One of the prosthetics was an Ottobock X3 Microprocessor leg and knee. The X3 costs about $ 145,000. BCBS declined to cover the full cost of the X3 based on its insurance contract. The relevant portion of the contract provided:

"Except as limited, the services listed below are covered:

....

b. Orthopedic and prosthetic devices, appliances and items when medically needed and not otherwise excluded herein. This includes items such as orthopedic braces, artificial limbs, artificial eyes, and auditory osseointegrated devices.

Limitations:

....

(3) Benefits are limited to the amount normally available for a basic (standard) appliance which allows necessary function. Basic (standard) medical devices or appliances are those that provide the essential function required for the treatment or amelioration of the medical condition at a Medically Necessary level.

(4) Charges for deluxe or electrically operated orthotic or prosthetic appliances, devices or items are not covered, beyond the extent allowed for basic (standard) appliances. Deluxe describes medical devices or appliances that have enhancements that allow for additional convenience or use beyond that provided by a basic (standard) device or appliance."

The contract defines "medically necessary" as:

"a service required to diagnose or to treat an illness or injury. To be Medically Necessary, the service must: be performed or prescribed by a Doctor; be consistent with the diagnosis and treatment of Your condition; be in accordance with standards of good medical practice; not be for the convenience
441 P.3d 1062
of the patient or his Doctor; and is provided in the most appropriate setting."

BCBS believed that a prosthetic device was medically necessary and thus covered by the insurance contract. However, BCBS considered the X3 to be a deluxe or electrically operated prosthetic appliance subject to the limitations provision in the contract. BCBS determined that a basic (standard) knee would cost $ 2,925.32. It informed Short that it would pay him that amount, and that Short would be responsible for the balance of the cost of the X3. Short disagreed, and he sued BCBS for breach of contract.

During discovery, Short made several inquiries that are now at issue on appeal. In Interrogatory Number 2, Short asked BCBS to "[s]tate all facts and identify all documents you contend support [BCBS]'s refusal to pay the cost of the Ottobock X3 prosthetic knees ...." Short also made several requests for documents, including:

"1. All insurance claims and underwriting files pertaining to the subject matter of this lawsuit.

....

"5. Copies of all correspondence to and from others concerning Plaintiff.

"6. Original or true and correct copies of any recorded statement taken of Plaintiff.

....

"8. Original or true and correct copies of all medical records and reports pertaining in any way to Plaintiff.

....

"10. Any utilization or medical reviews dealing with Plaintiff.

"11. All documents you intend to introduce as evidence at the time of trial."

BCBS objected to these requests based on their relevance and scope. BCBS argued that the issue in the case was whether the full cost of the X3 fell within the provisions of Short's insurance, and that the issue could "be determined by the contract language as a matter of law by the Court."

Short filed a motion to compel discovery responses. Short asserted that he was "entitled to know what facts and documents [BCBS] contends supports their denial." He asked the district court to require BCBS to "produce any facts or documents besides the contract upon which [BCBS] relies in denying to provide [Short] the Ottobock X3, if any exists besides the contract." BCBS objected to Short's motion to compel discovery responses. It maintained its argument that this was a straightforward case that the court could decide by the language within the four corners of the contract.

The district court denied Short's motion to compel, finding that the contract language was not ambiguous, deluxe or electrically operated devices were not covered, and the requested discovery would not likely lead to any relevant information regarding the nature of the claim.

Later in the litigation, Short filed an expert witness disclosure. He named only one person—Dr. Todd Cowen. Dr. Cowen prepared a Catastrophic Life Care Plan for Short. An expert develops a Life Care Plan by "applying methodological, expert analysis to determine and quantify the current and future medical care requirements of an individual." Although his report is over 130 pages long, Dr. Cowen only briefly addressed the X3. He stated:

"The Ottobock X3 is a standard prosthetic appliance frequently used for military and other amputees, which allows the essential function required for the treatment or amelioration of the medical condition at a minimal level. It will not return full function to the knee and is not for mere convenience but would allow Mr. Short to keep up with everyday activities such as showering or walking on unlevel ground. The X3 protective cover is lightweight and incredibly strong. Ability Dynamic's Rush Foot is made of a unique glass composite that has been proven not to break down in heavy use like carbon fiber. It is a specially-formulated composite fiber material that is nearly indestructible, highly flexible and only available on Ability Dynamic's Rush Foot prosthetic devices. It delivers one of the most realistic and responsive foot and ankle motions available on the market."

When Dr. Cowen assessed Short, Short was using a borrowed X3. Short reported feeling safe and stable with the device, especially while trying to work on his family farm.

441 P.3d 1063

BCBS moved to strike Dr. Cowen as an expert witness in the case. BCBS reiterated its argument that expert testimony was unnecessary because the court could decide the issue solely by the language of the contract. We find no evidence in the record that the district court ever ruled on the motion to strike.

BCBS ultimately moved for summary judgment. BCBS framed the issue as whether it "was correct in determining that it could not cover the balance of the cost for the Ottobock X3 Microprocessor Knee based on the language in the contract excluding coverage for charges for deluxe or electrically operated prosthetic devices." BCBS argued that the district court need only "examine the pertinent contract language, which it has already determined is not ambiguous, to make its decision." BCBS attached screenshots from Ottobock's website related to the X3. The website described the X3 as "[t]he world's most technologically advanced microprocessor prosthetic leg." The website advertises that the X3 has several sensors and a microprocessor which help the knee operate. It is activated by...

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5 practice notes
  • Briggs v. State Farm Mut. Auto. Ins. Co., Case No. 20-1172-SAC-GEB
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 18, 2021
    ...the court may consider extrinsic evidence to construe it. Short v. Blue Cross and Blue Shield of Kansas, Inc., 56 Kan.App.2d 914, 441 P.3d 1058, 1061 (2019).C. UIM benefits The parties agree that the contractual issue presented to the court as to the recovery of UIM benefits is whether plai......
  • Briggs v. State Farm Mut. Auto. Ins. Co., Case No. 20-1172-SAC-GEB
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 18, 2021
    ...a contract is ambiguous, the court may consider extrinsic evidence to construe it. Short v. Blue Cross and Blue Shield of Kansas, Inc., 441 P.3d 1058, 1061 (Kan.App. 2019). C. UIM benefits The parties agree that the contractual issue presented to the court as to the recovery of UIM benefits......
  • Legato, LLC v. City of Olathe, 122
    • United States
    • Court of Appeals of Kansas
    • July 30, 2021
    ...language, we may consider extrinsic evidence to construe it." Short v. Blue Cross & Blue Shield of Kansas, Inc., 56 Kan.App.2d 914, 914, 441 P.3d 1058 (2019). If the four corners of a contract clearly show the intent of the parties, the contract is not ambiguous. 56 Kan.App.2d at 929. The d......
  • Legato, LLC v. City of Olathe, 122,358
    • United States
    • Court of Appeals of Kansas
    • July 30, 2021
    ...we may consider extrinsic evidence to construe it." Short v. Blue Cross & Blue Shield of Kansas, Inc. , 56 Kan. App. 2d 914, 914, 441 P.3d 1058 (2019). If the four corners of a contract clearly show the intent of the parties, the contract is not ambiguous. 56 Kan. App. 2d at 929. The doctri......
  • Request a trial to view additional results
5 cases
  • Briggs v. State Farm Mut. Auto. Ins. Co., Case No. 20-1172-SAC-GEB
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 18, 2021
    ...the court may consider extrinsic evidence to construe it. Short v. Blue Cross and Blue Shield of Kansas, Inc., 56 Kan.App.2d 914, 441 P.3d 1058, 1061 (2019).C. UIM benefits The parties agree that the contractual issue presented to the court as to the recovery of UIM benefits is whether plai......
  • Briggs v. State Farm Mut. Auto. Ins. Co., Case No. 20-1172-SAC-GEB
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 18, 2021
    ...a contract is ambiguous, the court may consider extrinsic evidence to construe it. Short v. Blue Cross and Blue Shield of Kansas, Inc., 441 P.3d 1058, 1061 (Kan.App. 2019). C. UIM benefits The parties agree that the contractual issue presented to the court as to the recovery of UIM benefits......
  • Legato, LLC v. City of Olathe, 122
    • United States
    • Court of Appeals of Kansas
    • July 30, 2021
    ...language, we may consider extrinsic evidence to construe it." Short v. Blue Cross & Blue Shield of Kansas, Inc., 56 Kan.App.2d 914, 914, 441 P.3d 1058 (2019). If the four corners of a contract clearly show the intent of the parties, the contract is not ambiguous. 56 Kan.App.2d at 929. The d......
  • Legato, LLC v. City of Olathe, 122,358
    • United States
    • Court of Appeals of Kansas
    • July 30, 2021
    ...we may consider extrinsic evidence to construe it." Short v. Blue Cross & Blue Shield of Kansas, Inc. , 56 Kan. App. 2d 914, 914, 441 P.3d 1058 (2019). If the four corners of a contract clearly show the intent of the parties, the contract is not ambiguous. 56 Kan. App. 2d at 929. The doctri......
  • Request a trial to view additional results

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