Allen L. Hardester, Jr. Barbara Hardester v. The Lincoln National Life Insurance Company, Administrator Employers Health Insurance Company

52 F.3d 70, 1995 U.S. App. LEXIS 9106, 1995 WL 226603

Opinions

Affirmed by published per curiam opinion. Judge HAMILTON wrote a dissenting opinion, in which Chief Judge ERVIN, Judge RUSSELL, Judge WILKINSON, Judge LUTTIG, and Senior Judge PHILLIPS joined.

OPINION

PER CURIAM:

Lincoln National Life Insurance Company and Employers Health Insurance Company appeal an order of the district court granting summary judgment for the plaintiff insureds in a dispute over health insurance coverage provided under an ERISA¹ welfare benefit plan. Hardester v. Lincoln National Life Insurance Co., 841 F.Supp. 714 (D. Md.1994). A divided panel of this court reversed the judgment of the district court, Hardester v. Lincoln National Life Insurance Co., 33 F.3d 330 (4th Cir.1994), but, on plaintiffs’ suggestion, we vacated the panel decision and reheard the case en banc. Having considered the briefs and the arguments of the parties, we now affirm the judgment of the district court for the reasons stated in the dissent to the panel opinion. Id. at 337-40 (Hall, J., dissenting).²

AFFIRMED.

1 . Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.

2 . Though their authority is not essential to our decision, we note that two cases decided after the panel heard argument in this case support today's result. Hughes v. Boston Mutual Life Insurance Co., 26 F.3d 264, 268-69 (1st Cir.1994) (rule of contra proferentem precludes rejecting, on summary judgment, plaintiff's contention that treatment is "for” a condition only if there is “some awareness on the part of the physician or the insured that the insured is receiving treatment for the condition itself"); Pitcher v. Principal Mutual Life Insurance Co., 870 F.Supp. 903, 910 (S.D. Ind.1994) (expressly adopting analysis of Hardester panel dissent in strikingly similar case).