Wickland v. American Travellers Life Ins.

Decision Date04 November 1998
Docket NumberNo. 25167.,25167.
Citation513 S.E.2d 657,204 W.Va. 430
PartiesStephen A. WICKLAND, Administrator with the Will Annexed of Hazel Mowrey Hardman, Deceased, Plaintiff Below, Appellant, v. AMERICAN TRAVELLERS LIFE INSURANCE COMPANY, an Insurance Company, and Joseph A. McClain, Defendants Below, Appellees.
CourtWest Virginia Supreme Court

Stephen A. Wickland, Clarksburg, West Virginia, Attorney for the Appellant.

Robert G. Steele, Jacqueline A. Wilson, Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for the Appellees.

DAVIS, Chief Justice:

Stephen A. Wickland, Administrator with the will annexed of Hazel Mowrey Hardman, plaintiff below and appellant herein [hereinafter Administrator Wickland], appeals the July 22, 1997, order of the Circuit Court of Lewis County denying Administrator Wickland's motion for summary judgment and granting the cross-motion for summary judgment of defendants below and appellees herein, American Travellers Life Insurance Company and Joseph A. McClain. In rendering its decision, the circuit court concluded that the medical condition necessitating Ms. Hardman's admission into a nursing home was a preexisting condition and that the policy language of her long-term care insurance1 expressly excluded from coverage the resultant care. Upon a review of the parties' arguments on appeal, the record evidence, and the pertinent authorities, we conclude that an insured's periodic complaints of symptoms, without medical advice or treatment therefor, do not constitute a preexisting medical condition, as that term is defined by W. Va.Code § 33-15A-6(c)(1) (1989) (Repl. Vol.1996). Furthermore, while we recognize that such symptoms may, when considered in conjunction with other factors, be indicative of a preexisting condition, we find that these additional factors did not accompany Ms. Hardman's symptoms. Accordingly, we reverse the decision of the Circuit Court of Lewis County. We additionally remand this case for the entry of summary judgment in favor of Administrator Wickland.


The basic facts of this controversy generally are not disputed by the parties. On October 25, 1993, Hazel Mowrey Hardman [hereinafter Ms. Hardman or the decedent]2 met with Joseph A. McClain, defendant below and appellee herein [hereinafter Mr. McClain], an agent of the co-defendant below and co-appellee herein, American Travellers Life Insurance Company [hereinafter American Travellers], for the purpose of purchasing a long-term care insurance policy. During this meeting, attended only by Ms. Hardman and Mr. McClain, Ms. Hardman disclosed that she "[wa]s currently being treated or ha[d] been treated in the last five years" for diabetes and cornea transplant. She further listed on the application that she was then taking medications for bladder control, blood pressure, fluid control, and eye problems. At the end of the insurance application, Ms. Hardman signed a statement "authoriz[ing] any insurance company, hospital, nursing home or other medical facility, physician or other medical practitioner having any information or knowledge of me or my health to give such information to American Travellers Life Insurance Company in order to process this application."3 Also evidenced by the insurance application is the fact that Mr. McClain received from Ms. Hardman a twelve-month premium in the amount of $2,449.00, and noted the effective date of the policy as October 25, 1993.

Thereafter, in March and April, 1994, Ms. Hardman experienced several episodes of vertigo accompanied by falls, for which she received medical treatment and was hospitalized. Dr. Angotti treated Ms. Hardman for, and diagnosed her as having, vertigo on March 14, 1984, and April 4, 1994. As a result of her numerous falls and the other symptoms of her vertigo, Ms. Hardman was admitted to Holbrook Nursing Home on April 20, 1994,4 approximately five months and twenty-six days after the effective date of her long-term care insurance coverage. Upon filing a claim for benefits under her American Travellers long-term care insurance policy, Ms. Hardman was informed that her convalescence would not be covered because her nursing home admission resulted from a preexisting condition.5 In its declination of coverage letter, American Travellers rejected Ms. Hardman's claim for benefits stating specifically that

[t]he medical condition for which you received treatment pre-exists the policy. Pre-existing conditions are illnesses or injuries for which you sought medical treatment or advice prior to your policy's effective date. Your policy does not provide benefits for this condition unless your loss begins more than six (6) months after your policy's effective date....

In response to this denial of benefits, Ms. Hardman, by her attorney-in-fact,6 filed a civil action in the Circuit Court of Lewis County, on September 5, 1995, against American Travellers and Mr. McClain [hereinafter collectively referred to as American Travellers] seeking coverage of her nursing home expenses under her long-term care policy.7 During a January 12, 1996, hearing, counsel for American Travellers informed the circuit court that Ms. Hardman's preexisting condition, upon which her claim had been rejected, was vertigo and falls.8 In this regard, American Travellers indicated that Ms. Hardman's medical records evidenced treatment for vertigo and dizziness within the six months preceding her insurance application.

The medical records from Ms. Hardman's treating physician showed that during the six-month period preceding the effective date of her long-term care insurance policy, i.e., from April 25, 1993, until October 25, 1993, Ms. Hardman twice complained of occasional dizziness. These medical records for the relevant six-month period did not, however, contain any references to falls or vertigo, or otherwise indicate that Ms. Hardman experienced falls or vertigo during this time frame.

On March 20, 1997, Administrator Wickland, on behalf of the decedent's estate, moved for summary judgment. Defendants American Travellers and Mr. McClain opposed the estate's motion and cross-moved for summary judgment. By order dated July 22, 1997, the Circuit Court of Lewis County ruled:

it appears to the Court that the policy of insurance in question expressly provides, "No loss due to a Pre-Existing Condition will be covered unless the Period of Care begins at least six months after the Effective Date of coverage. The Policy is not considered to be in force or effective with respect to coverage for the pre-existing conditions until six months after the Effective Date shown in the Policy Schedule."

The policy contains the following definition: "`Pre-existing Condition' means a condition for which medical advice or treatment was recommended by or received from a physician within six months preceding the Effective Date of coverage." The parties have agreed that Hazel M. Hardman went to a nursing home before six months had elapsed from the effective date of the policy. Plaintiff, by counsel, represents to the Court that Hazel M. Hardman was admitted to the nursing home for a condition described as "falls and vertigo". Based upon the matters in the Court file, the Court finds that Hazel M. Hardman had exhibited the symptoms and the conditions of vertigo within the period of time which was set forth in the policy with respect to pre-existing conditions and as such, the period of nursing home care would not be covered or would be excluded under the policy in question. For the reasons hereinbefore stated and based upon the matters presented to the Court and in the Court file, the Court hereby finds that the defendants are entitled to summary judgment and the Court hereby enters summary judgment in favor of the defendants, American Travellers Life Insurance Company and Joseph A. McClain in this civil action.

Administrator Wickland subsequently moved that the judgment be altered or amended. On September 16, 1997, the circuit court similarly denied this motion. From these adverse rulings, Administrator Wickland, for the decedent's estate, appeals to this Court.


The primary issue presented by the parties for resolution by this Court is whether Ms. Hardman had preexisting conditions of falls and vertigo such that her nursing home care and expenses necessitated by her episodes of falls and vertigo were excluded from coverage under her long-term care policy.9 Following a brief discussion of the applicable standard of review, we will address the arguments of the parties.

A. Standard of Review

Procedurally, this case is before this Court on appeal from the circuit court's denial of Administrator Wickland's motion to alter or amend the summary judgment granted in favor of American Travellers by order entered July 22, 1997. Rule 59(e) of the West Virginia Rules of Civil Procedure permits a party to make "[a] motion to alter or amend the judgment ... [within] 10 days after entry of the judgment." The practical effect of such a motion is to enlarge the time within which an appeal must be filed as to those matters which are the subject of the motion. See, e.g., Syl. pt. 7, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) ("A motion for reconsideration filed [pursuant to W. Va. R. Civ. P. 59(e)] within ten days of judgment being entered suspends the finality of the judgment and makes the judgment unripe for appeal. When the time for appeal is so extended, its full length begins to run from the date of entry of the order disposing of the motion."); Lieving v. Hadley, 188 W.Va. 197, 200-01 n. 3, 423 S.E.2d 600, 603-04 n. 3 (1992) ("`The full time for filing a petition for appeal commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: ... granting or denying a motion under Rule 59 to alter or amend the judgment ....'" (quoting W. Va. R....

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