Romano v. Pilot Life Insurance 428 So. 2d 523

STOKER, Judge.

Plaintiff, Michael A. Romano, appeals from a judgment which granted a motion for summary judgment. The defendant, Pilot Life Insurance Company, denied coverage for certain medical expenses occasioned by injuries sustained by plaintiff’s minor son, Dana Romano, while participating in a football game as a student at Leesville High School. We reverse and remand.

Pilot Life Insurance Company relied on the following provisions in its policy:

“EXCLUSIONS

“No payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly, by

(7) nor shall payment of any kind be made for or on account of

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(b) expenses incurred on account of any injury if such expenses are incurred more than twelve months following the date of the accident in which such injury was sustained; an expense being deemed to have been incurred on the date the service for which the charge is made shall have been received or rendered.” (Emphasis supplied.)

Dana’s injury occurred on October 26, 1979, and consisted of a fractured forearm. He underwent open reduction of the fracture, and the surgical procedure involved required the insertion of slotted plates and screws. The insurer admits liability for the hospital, surgical and related expenses for this initial treatment but resists payment of the costs of removing the plates and screws more than a year after the accident.

The italicized portion of the policy language purports to fix the date of “expenses incurred”. The insurer urges that the date should be deemed to be “the date the service for which the charge is made shall have been received or rendered.” The insurer further urges that inclusion of this explicit qualification as to the time expenses are incurred distinguishes this case from Valladares v. Monarch Insurance Company, 282 So.2d 569 (La.App. 4th Cir.1973), writ refused, 284 So.2d 603 (La.1973) and Humphries v. Puritan Life Insurance Company, 311 So.2d 534 (La.App. 3rd Cir.1975). The policies in those cases contained no definitions of the word “incurred” and no qualification with reference to the time expenses should be deemed incurred.

We do not reach the merits of these contentions as we conclude that there are genuine issues of material fact which must be resolved. Therefore, the motion for summary judgment cannot be granted.

MATERIAL ISSUES OF FACT AS TO NOTICE

Plaintiff-appellant, Romano, urges that there is an issue as to whether the defendant insurer is estopped from denying benefits on the ground that plaintiff had no access to the policy and the insurer gave no notice of the policy limitations. Plaintiff contends there is no evidence in the record on this point. Plaintiff’s position is that the language in question was not brought to his attention and he was not furnished with a copy of the policy or notice of its provisions.

*525The policy in the record shows it was issued to “Vernon Parish Schools” and not to plaintiff. The policy lists as persons insured “those bona-fide students of the school or schools under the supervision of the Policyholder who are actively participating in the interscholastic sport of football during the term of this policy, and who have been identified to the Company by the Policyholder as required herein.” The allegations of plaintiff’s petition state that the policy was sold, issued and delivered to the Vernon Parish School Board. The contracting parties were the school board and the defendant insurer. It appears, nevertheless, that Dana Romano was an insured under the policy definition of insured.

STATUTORY REQUIREMENT OF NOTICE

A requirement of notice is provided by statute in LSA-R.S. 22:215 A(3)(c) and (g), the provisions of which are:

§ 215. Group, family group, blanket and franchise health and accident insurance

A. Any insurer authorized to write health and accident insurance in this state shall have power to issue policies described in this Section:

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(3) Blanket health and accident insurance is any policy covering special groups of persons as enumerated in one of the following paragraphs (a) through (f):

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(c) Under a policy issued to a college, school, or other institution of learning or to the head or principal thereof, who or which shall be deemed the policyholder, covering students or teachers.

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(g) An individual application shall not be required from a person covered under such a blanket policy. The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and the provisions relating to notice of claim, proof of loss, time of payment of claim and any other relevant information, including the name and address of the insurer. All benefits under any such blanket policy shall be payable to the person insured, or to his designated beneficiary or beneficiaries, if the policy permits the designation of named beneficiaries, or to his estate, except that if the person insured be a minor such benefits may be made payable to his parent, guardian, or other person actually supporting him.

It will be noted that while individual applications are not required, the persons for whose benefit the insurance is issued must be given certificates of insurance. The certificates must disclose the critical matters in the policy. Of particular significance is the requirement that the certificate include information as to any “limitations” and “exclusions” contained in the policy as set forth in the last paragraph quoted above, subparagraph (g) of LSA-R.S. 22:215 A(3).

Under the statutory scheme Pilot Life Insurance Company was required (1) to furnish certificates of insurance containing the information listed in subparagraph (g) to the Vernon Parish Schools, the policyholder, and (2) the policyholder should have delivered such a certificate to Dana Romano or to plaintiff-appellant as his son’s representative. In the absence of a showing or an affidavit to the effect that the statute was complied with, the motion for summary judgment filed by Pilot Life Insurance Company cannot be granted. In order to rely on the twelve-month limitation of its policy Pilot Life must have complied with the statute. Doubtless this includes a showing that a certificate of insurance calling attention to the twelve-month limitation of its policy was in fact delivered to the Vernon Parish School Board for delivery to the Romanos. Lombard v. Manchester Life Insurance Company, 406 So.2d 742 (La.App. 4th Cir.1981), writ denied, 410 So.2d 764 (La.1982).

In fairness to the trial judge who granted the motion for summary judgment in this *526case, we note that it does riot appear that the provisions of LSA-R.S. 22:215 A(3)(g) were called to his attention.

In view of our finding that the motion for summary judgment must be reversed and the case be remanded, we do not reach plaintiff-appellant’s argument that the policy provisions sought to be invoked by the insurer are either ambiguous or void as against public policy.

For the foregoing reasons the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with the expressions stated in this opinion. The costs of this appeal are assessed to defendant-appellee, Pilot Life Insurance Company.

REVERSED AND REMANDED.

KNOLL, J., concurs and assigns written reasons.

KNOLL, Judge,

concurring.

I fully agree with the result reached in the majority opinion. I further find that it would be against public policy to allow Pilot Life Insurance Co. the protection of an exclusionary clause when this clause is not made known to the insured.

Vallardes v. Monarch Ins. Co., 282 So.2d 569 (La.App. 4th Cir.1973) and Humphries v. Puritan Life Ins. Co., 311 So.2d 534 (La. App. 3rd Cir.1975), also cited in the majority opinion, enunciate two cogent reasons why a 12-month policy limitation should be unenforceable when medical expenses clearly result from the original injury.

First, public policy is offended when financial loss influences medical treatment which would have been extended beyond the 12-month period. Humphries, supra, states:

“Policies should not be construed to force patients to undergo surgery that might not be necessary on pain of forfeiting coverage.”

Secondly, the primary purpose of the 12-month limitation is to assure that there exists a connexity between the required medical treatment and the accident which gave rise to the injury. When, as in the case at bar, there is no dispute that the first surgery (performed immediately after the injury) necessitated a second operation (for the removal of the metal arm plate and screws), there is no doubt that the medical treatment is the direct result of the accident.

Likewise this conclusion did not escape the trial judge’s observation when he stated:

“... I want to say that I think it’s unfortunate, and I’d like to say . .. that perhaps the School Board should look real closely at any other policy they consider. And, I think that perhaps it should be against public policy to permit . .. Pilot Life to get off the boat after the crisis has struck....”

Louisiana jurisprudence is replete with cases upholding the principle that exclusionary clauses should not be interpreted to effectuate results beyond their purpose. Corporation of Roman Catholic Church of Eunice v. Royal Ins. Co., 158 La. 601, 104 So. 383 (La.1925); Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (La.1953); Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (La.1969).

LSA-R.S. 22:215 A(3)(g) embodies a third statement of public policy regarding blanket health and accident insurance issued in this state. This statute requires that:

“... The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reduction contained in the policy .. .. ” (Emphasis added.)

This legislative mandate was discussed in Colvin v. Louisiana Hospital Service, Inc., 321 So.2d 416 (La.App. 2nd Cir.1975), writ denied, 323 So.2d 476. There it was determined that the declared purpose of this statutory requirement was to provide insured persons with sufficient information about the benefits, limitations and exclusions of their group policy.

The policy in the record identifies Vernon Parish Schools as the Policyholder. The policy further identifies the persons insured as being “those bona-fide students of the school or schools under the supervision of the Policyholder who are actively partid-*527pating in the interscholastic sport of football ... and who have been identified to the Company by the Policyholder....”

Louisiana Revised Statute 22:215 A(3)(g) has mandated that Pilot Life Insurance Company provide the Vernon Parish Schools with a certificate of insurance for delivery to the insureds. The record is devoid of any indicia of Pilot’s compliance with this statutory requisite. The lone reference to this factual issue is raised in plaintiff’s affidavit in opposition to Pilot’s motion for summary judgment where he states:

“... at no time did appearer [Romano] have access to the insurance policy ... and at no time was ... [he] informed by Pilot Life Insurance Company or anyone else that there was an alleged time limitation of one year from the date of the accident for the payment of medical bills incurred; ...”

The Louisiana courts have voided insurance policy limitations which were in direct conflict with the state’s public policy. O’Donnell v. Fidelity General Ins. Co., 344 So.2d 91 (La.App. 2nd Cir.1977). In my opinion the 12-month limitation as applied to this case is contrary to Louisiana public policy, accordingly, this policy limitation should not be given effect.