USCA1 Opinion
February 6, 1995 United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-1613
GOLDEN RULE INSURANCE COMPANY,
Plaintiff, Appellant,
v.
CATHERINE ATALLAH,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on January 23, 1995, is
amended as follows:
On cover sheet, Curtis Dickinson's name should read "Curtis
J. Dickinson" and on the last line of page 5 of the opinion "Dr.
Preston" should read "Dr. Croswell".
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-1613
GOLDEN RULE INSURANCE COMPANY,
Plaintiff, Appellant,
v.
CATHERINE ATALLAH,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr, and Stahl,
Circuit Judges.
______________
____________________
Curtis J. Dickinson with whom Dickinson & Associates, Wendell G.
___________________ _______________________ __________
Large, Elizabeth G. Stouder, and Richardson & Troubh were on brief for
_____ ____________________ ___________________
appellant.
Mark G. Furey with whom Thompson, McNaboe, Ashley & Bull were on
_____________ _________________________________
brief for appellee.
____________________
January 23, 1995
____________________
STAHL, Circuit Judge. Plaintiff-appellant Golden
STAHL, Circuit Judge.
_____________
Rule Insurance Company ("Golden Rule"), an Illinois
corporation, appeals a judgment awarding defendant-appellee
Catherine Atallah ("Atallah") $263,698.68 for medical
expenses pursuant to an insurance contract ("the Policy")
between the parties. Golden Rule contends that Atallah's
illness, a meningioma, or tumor of the brain lining, was a
preexisting condition excluded from coverage under the Policy
and therefore the district court erred in not granting Golden
Rule judgment as a matter of law. We agree that Golden Rule
was entitled to judgment as a matter of law, and now vacate
and remand so that judgment may be entered accordingly.
I.
I.
__
BACKGROUND
BACKGROUND
__________
By late 1991, those who knew Catherine Atallah
realized that something was amiss with her. Divorced about
eight years previously, Atallah, then 49, of Waterville,
Maine, had become increasingly reclusive over the previous
several years, and she was becoming increasingly unable or
unwilling to perform the ordinary tasks of everyday life.
She failed to pay bills, and her utility and telephone
services were cut off more than once. She fell several
months behind in mortgage payments on her home, and she
allowed her driver's license to lapse. When the doorbell or
telephone rang, she often would refuse to answer. She
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bathed, changed clothes and combed her hair infrequently, and
she left soiled pots and pans in her kitchen for weeks at a
time.
A family friend persuaded Atallah to seek medical
attention in June 1991, but a routine examination turned up
no obvious clues to her condition. She also visited a social
worker twice that summer, and explained that she was doing so
to learn "why I am the way I am." She failed to show up for
a scheduled third visit and did not arrange a further
appointment.
In November 1991, Atallah's condition had
deteriorated to the point that her oldest son, Peter Atallah,
obtained from her a power-of-attorney permitting him to
oversee her affairs. One of the first things Peter Atallah
did was attempt to purchase medical insurance for his mother,
who was then uninsured. This effort failed because of an
apparent mix-up over the method of payment. In June 1992,
Peter Atallah arranged for Dr. David Preston, an internist,
to visit his mother at home. In a lengthy letter to Dr.
Preston, Peter Atallah related his mother's personal and
medical history, including a previous thyroid condition and
hysterectomy about eight years earlier. He told Dr. Preston
that he and his brothers
want our mother back. We believe she is
suffering from chronic depression, but
that there are chemical imbalances
(thyroid, estrogen) that are making a bad
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situation much worse. We cannot rule out
the need for mental therapy, but we have
not been able to get a handle on the
whole problem.
Dr. Preston visited Atallah in her home on June 24,
1992. The ensuing physical exam yielded no remarkable
findings other than that she had lost fifteen pounds during
the previous six months and had suffered a gradual decrease
in vision over the previous few years. Dr. Preston noted
that Atallah's thyroid condition should be rechecked and the
cause of her weight loss determined. He also noted that he
believed she was "a danger to herself though in a sort of low
grade fashion," and that he discussed with her the
advisability of seeking inpatient psychiatric treatment "as
she has really failed to connect" with anyone as an
outpatient. In deposition testimony read into the trial
record, Dr. Preston stated that Atallah did not think
inpatient treatment was necessary but that she agreed to see
a psychiatrist on an outpatient basis, and that he "thought
that that would be a good start." Dr. Preston did not
specifically recommend that Atallah receive an EEG or CT
scan. He recalled, however, that Atallah was reluctant to
undergo expensive tests or hospitalization because of
concerns about her lack of insurance coverage. At Dr.
Preston's direction, Atallah went to the hospital later that
day for blood tests and a chest x-ray. These tests revealed
no findings significant to her condition.
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Dr. Preston then referred Atallah to Dr. Robert
Croswell, a psychiatrist. Dr. Croswell saw Atallah first on
July 2 and again on July 9. He prescribed for Atallah the
drug Zoloft, an anti-depressant. At the July 9 session,
according to Dr. Croswell's videotaped deposition testimony,
he recommended that Atallah submit to inpatient evaluation
because he was concerned that he was not getting a full and
accurate view of the extent of her condition and he "thought
that a good way to clarify the issue would be to get her into
the hospital so we could do a more thorough evaluation . . .
." While obtaining brain wave test results was not the
primary reason Dr. Croswell suggested inpatient treatment,
such treatment would have included these tests, Dr. Croswell
testified, and would probably have led to the discovery of
the tumor. Dr. Croswell also testified at his deposition
that Atallah did not want to submit to inpatient evaluation
because of insurance concerns. Later in that deposition, he
stated that Atallah's refusal to submit to inpatient
treatment and her concerns about insurance coverage were not
necessarily causally linked, and that "it certainly was never
clear that the reason she refused was purely because of
______
insurance coverage." (emphasis added) Dr. Croswell's
handwritten notes from the July 9 session do not indicate
that he actually discussed inpatient treatment with Atallah
on that day, or that she expressed concerns about insurance
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coverage. The notes do, however, contain a notation
indicating that at the very least Dr. Croswell was
considering the suitability of three different inpatient
treatment facilities for Atallah.
Atallah did not keep her appointment with Dr.
Croswell for July 23, but he did see her on July 27 and 28.
On July 28, Dr. Croswell entered into a "contract" with
Atallah. The contract called for Atallah to continue taking
Zoloft and visiting Dr. Croswell at his office each week. If
this treatment produced no improvement in three to four
weeks, the Zoloft dosage would be doubled. If there was
still no improvement in two months, Dr. Croswell testified,
he told Atallah he would be unwilling to continue seeing her
on an outpatient basis and would insist that she submit to
inpatient evaluation.1 However, Atallah failed to show up
for any further visits with Dr. Croswell.
In a letter to Maine's Department of Human Services
Disability Determination Services dated August 4, Dr.
____________________
1. In his consultation notes prepared on September 30, 1992
-- after Atallah had finally been admitted to a hospital for
a fainting spell but before her tumor had been discovered --
Dr. Croswell wrote:
I think we are seeing gradual evolution of a
thought disorder here. Certainly medical work up
(sic) is necessary including electroencephalogram
and CT brain scan to rule out organic etiology.
Such a work up has been recommended to the patient
a couple of months ago but she refused inpatient
evaluation and had some real concerns about
insurance coverage.
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Croswell wrote that Atallah "shows evidence of severe poverty
of content of thinking with grossly impaired judgment at
times regarding her own needs." He wrote that it was his
"impression" that Atallah suffered from a "gradually
increasing disability" with the diagnosis of "major
depression, severe and persistent," and "passive aggressive
personality disorder." Dr. Croswell had "[n]o diagnosis" of
any physical condition.
Meanwhile, after learning that his mother was still
uninsured, Peter Atallah applied for Medicare/Medicaid
coverage on her behalf. Expecting a delay before the
application was approved, he purchased a short-term, non-
renewable medical insurance policy from Golden Rule,
effective August 9, 1992. The Policy contained a clause
stating that Golden Rule would not pay for medical bills
attributable to preexisting conditions. The Policy defined
"preexisting condition" as:
an illness2 or injury:
(1) for which the covered person received medical
advice or treatment within the 60 months
____________________
2. The Policy defines "illness" as
a sickness or disease . . . . All
illnesses that exist at the same time and
_________
which are due to the same or related
causes are deemed to be one illness.
_______
Further, if an illness is due to causes
_______
which are the same as, or related to, the
causes of a prior illness, the illness
_______ _______
will be deemed a continuation of the
prior illness and not a separate illness.
_______ _______
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immediately preceding the Effective Date . . .
; or
(2) which, in the opinion of a qualified doctor,
(a) probably began prior to the Effective
Date . . .; and
(b) manifested symptoms which would cause an
ordinarily prudent person to seek
diagnosis or treatment within the 60
months immediately preceding the
Effective Date . . . .
On September 29, 1992, while talking on the
telephone with her son Peter, Atallah suffered a "syncopal
episode," or fainting spell. She was taken to Mid-Maine
Medical Center in Portland, where a CT scan and EEG were
performed. To the surprise of her treating physicians, the
tests revealed a grapefruit-sized tumor growing on the lining
surrounding Atallah's brain -- in medical terms, a bifrontal
olfactory groove meningioma.3 Atallah underwent surgery on
October 8, 1992, and doctors were able to remove about half
of the tumor. The medical bills for Atallah's hospital stay,
surgery and eight months of recuperative care following
surgery totalled $263,698.68.
When Atallah submitted a claim to Golden Rule for
payment, the company refused to pay, citing the Policy's
preexisting condition clause. In denying coverage, Golden
____________________
3. Dr. Eric Omsberg, who diagnosed the meningioma from CT
scan and EEG test results, wrote in his consultation note
that Atallah had not previously had a "workup regarding the
possibility of a central lesion, but there has been no
specific indication to do such since her exam remains
nonfocal except for mental status, higher cognitive
functionings, and calculations."
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Rule relied on both definitions contained in the Policy,
explaining that Atallah had received treatment and advice for
her illness in the five years prior to August 9, 1992, and
that it had obtained the opinion of a qualified doctor to the
effect that her illness had manifested symptoms which would
cause an ordinarily prudent person to seek diagnosis or
treatment within the five years prior to August 9, 1992.
Golden Rule instituted a declaratory judgment
action in the district court in May 1993. Atallah filed a
counterclaim for breach of contract. During the two-day
trial, Golden Rule's expert witnesses, Drs. Norman Oestrike
and John Boothby testified that Atallah's symptoms were such
that she should have received a CT scan and EEG to test for
the possibility of an organic cause of her depression.
Atallah offered the testimony of Dr. Richard Toran, who
testified that in his opinion there was no need to order a CT
scan for Atallah before August 9 because her symptoms were
all explicable by her personal history. All of the doctors
who treated Atallah either before or after the ultimate
diagnosis agreed that her severe depression and reclusiveness
were caused by the tumor and that the tumor had been growing
for many years.
After all the evidence had been submitted, Golden
Rule moved for judgment as a matter of law, which the
district court denied. The jury returned a special verdict
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for Atallah, concluding that her tumor was not a preexisting
condition under the Policy. The district court entered
judgment for Atallah in the full amount claimed. The
district court then denied Golden Rule's renewed motion for
judgment as a matter of law and motion for a new trial, and
Golden Rule now appeals.4
II.
II.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
Our review of a denial of a motion for judgment as
a matter of law is plenary. Acevedo-Diaz v. Aponte, 1 F.3d
____________ ______
62, 66 (1st Cir. 1993). As did the district court, we view
the evidence in the light most favorable to the nonmovant and
decide whether any reasonable jury could have returned the
verdict it did. See Sanchez v. Puerto Rico Oil Co., 37 F.3d
___ _______ ___________________
712, 716 (1st Cir. 1994). Thus, we reverse the district
court's denial of the motion only if the facts and inferences
"point so strongly and overwhelmingly in favor of the movant"
that a reasonable jury could not have reached a verdict
against that party. Aponte, 1 F.3d at 66 (internal quotation
______
____________________
4. In addition to appealing the district court's denial of
its motions for judgment as a matter of law and for a new
trial, Golden Rule also appeals several of the district
court's evidentiary rulings made before and during trial and
its denial of proffered jury instructions. Because our
decision on Golden Rule's motion for judgment as a matter of
law is dispositive, we do not discuss the disputed
evidentiary rulings. We do, however, obliquely discuss the
matter of instructional error in the course of passing upon
Golden Rule's entitlement to judgment as a matter of law.
See infra Part III(B).
___ _____
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omitted). In performing this analysis, "`we may not consider
the credibility of witnesses, resolve conflicts in testimony,
or evaluate the weight of the evidence.'" Sanchez, 37 F.3d
_______
at 716 (quoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st
_________ _____
Cir. 1987)).
III.
III.
____
DISCUSSION
DISCUSSION
__________
We must decide whether a reasonable jury could have
concluded from all the evidence that Atallah was entitled to
recover under the Policy despite its preexisting condition
exclusion. The jury concluded that Atallah was entitled to
insurance benefits because her illness5 did not fit under
either of the Policy's definitions of "preexisting
condition."
Our assessment of the jury verdict's rationality
hinges on the meaning of the Policy's preexisting condition
clause. Under Maine's general law of contracts, the
interpretation of a contract is a question for the factfinder
____________________
5. Golden Rule contends that the Policy's definition of
"illness" sweeps together Atallah's depression and tumor as
one illness. Atallah argues that the definition only
addresses situations in which the insured actually has two
________ ___
causally-related illnesses -- i.e., an insured with AIDS-
related pneumonia who later develops AIDS-related cancer --
and not situations such as her own, in which the only "true"
illness was her tumor. Because both parties agree that under
either interpretation Atallah's "illness" would at least
comprise her tumor, and because resolution of this particular
issue is unnecessary to our decision, we treat Atallah's
"illness" as meaning her tumor only. We offer no opinion on
the proper interpretation of the "illness" definition.
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only if the court first determines that the contract is
ambiguous, a question of law. Willis Realty Assoc. v. Cimino
____________________ ______
Constr. Co., 623 A.2d 1287, 1288 (Me. 1993). Because
____________
exclusions from coverage in insurance contracts are not
favored and must be stated clearly and unambiguously,
ambiguities in such contracts must be resolved against the
insurer. Baybutt Constr. Corp. v. Commercial Union Ins. Co.,
_____________________ _________________________
455 A.2d 914, 921 (Me. 1983), overruled on other grounds by
_________ __ _____ _______ __
Peerless Ins. Co. v. Brennon, 564 A.2d 383 (Me. 1989); see
__________________ _______ ___
also Maine Bonding & Cas. Co. v. Philbrick, 538 A.2d 276, 277
____ ________________________ _________
(Me. 1988); Allstate Ins. Co. v. Elwell, 513 A.2d 269, 271
_________________ ______
(Me. 1986). However, this latter rule of construction "is a
rule of last resort which must not be permitted to frustrate
the intention the parties have expressed, if that can
otherwise be ascertained," Tinker v. Continental Ins. Co.,
______ _____________________
410 A.2d 550, 554 (Me. 1980), and "a court may not rewrite
the contract when the language employed is free of doubt."
Palmer v. Mutual Life Ins. Co., 324 F. Supp. 254, 257 (D. Me.
______ ____________________
1971). Finally, we note that we must determine the intention
of the parties by examining "the whole instrument," and we
must do so "with an eye to the subject-matter, the motive and
purpose of making the agreement, and the object to be
accomplished." General Elec. Capital v. Ford Motor Credit,
_____________________ _________________
149 B.R. 229, 233 (D. Me 1992).
A. Interpretation of the Preexisting Condition Clause
______________________________________________________
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The Policy's language defines an illness as a
preexisting condition if it fits either of the two
definitions contained in the Policy's preexisting condition
clause. Under the first definition (the "Treatment Clause"),
a preexisting condition is an illness or injury "for which"
___ _____
the insured actually received medical advice or treatment
before the Policy's effective date. The second definition
(the "Symptoms Clause") focuses not on advice or treatment
actually received, but rather on whether a reasonable person
would have sought diagnosis or treatment if afflicted with
_____ ____
the insured's symptoms before the Policy's effective date.
Because we hold that a rational jury could not have concluded
that Atallah's tumor was not a preexisting condition under
the Policy's Symptoms Clause, we do not address the proper
interpretation or application of the Treatment Clause.6
The Symptoms Clause presents us with language that
neither we nor Maine courts, as reflected in reported
____________________
6. We considered a clause similar to the Treatment Clause in
Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264 (1st Cir.
______ __________________________
1994). In that case, we held that a disability policy
defining "preexisting condition" as a "sickness or injury for
___
which the insured received treatment" was reasonably
_____
susceptible of two interpretations. Id. at 266, 269
___
(emphasis added). We stated that the phrase could reasonably
"require[] some awareness on the part of the physician or the
insured that the insured is receiving treatment for the
condition itself," id. at 269, and we construed it against
___
the insurer for purposes of summary judgment, id. at 270.
___
Hughes is distinguishable because the policy at issue in
______
Hughes contained nothing similar to the Symptoms Clause at
______
issue here.
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decisions, have previously confronted.7 Atallah argues that
the clause must mean that the symptoms would cause a prudent
person to seek diagnosis or treatment of a brain tumor or a
__ _ _____ _____
similarly organic brain disease. On its face, however, the
clause does not require either a correct diagnosis of the
underlying illness or any awareness on the part of the
insured or her physician of the nature of the underlying
illness. The words "for which" -- present in the Treatment
Clause and on which our decision in Hughes8 turned -- are
______
noticeably absent from the Symptoms Clause. The Symptoms
Clause presents a linguistically uncomplicated test. It
simply asks: In the opinion of a qualified doctor,9 did the
____________________
7. Maine recently adopted a statutory provision containing
language quite similar to the Symptoms Clause. Under this
provision, a preexisting condition clause "may only relate to
conditions manifesting in symptoms that would cause an
ordinarily prudent person to seek medical advice, diagnosis,
care or treatment or for which medical advice, diagnosis,
care or treatment was recommended or received during the 12
months immediately preceding the effective date of coverage."
Me. Rev. Stat. Ann. tit. 24-A, 2850 (West Supp. 1994).
Maine courts have yet to interpret this provision. In any
case, this provision was not in effect when Atallah purchased
her Policy, and the parties have not argued its relevance.
8. See supra note 6.
___ _____
9. We do not take this phrase to mean that if Golden Rule
obtains the opinion of a single qualified doctor in its
favor, the case is over. Rather, we take it to mean that
Golden Rule must obtain the opinion of a qualified doctor in
order to deny coverage under the Symptoms Clause, but that,
if the facts permit a qualified physician, properly applying
the policy definitions, to reach a contrary opinion -- which
is not the case here -- then the factfinder would be free to
decide what an ordinarily prudent person would do. Cf. Clark
___ _____
v. Golden Rule Ins. Co., 887 F.2d 1276, 1279 (5th Cir. 1989).
____________________
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illness "manifest symptoms" which would cause an ordinarily
prudent person to seek diagnosis or treatment within the five
years prior to the Policy's effective date?
We are unable to ascribe any ambiguity to this
test. We think the only plausible meaning of the phrase is
just what it says. The clause does not require that the
insured seek a particular kind of diagnosis -- indeed, common
sense tells us that one seeks a diagnosis precisely because
one is uncertain of the cause of particular symptoms. It
merely requires that the symptoms be such that an ordinarily
prudent person would seek diagnosis or treatment. If an
insured experiences such symptoms within the sixty months
prior to the Policy's effective date, then whatever illness
is ultimately determined to have caused those symptoms will
be deemed a preexisting condition and will be excluded from
coverage.
____________________
In Clark, the only other circuit court opinion interpreting
_____
language virtually identical to the Symptoms Clause, the
court affirmed the denial of coverage for coronary bypass
surgery for a patient with high cholesterol and triglyceride
levels and who had experienced chest pains or tightness in
the chest a few months before buying insurance. In doing so,
the court rejected the insured's argument that he had
received a "clean of bill of health" following a cardiac
stress test before purchasing insurance and therefore he had
no reason to seek diagnosis or treatment for his subsequent
chest pains. The court ruled that "`the opinion of a
qualified physician' is the test under the policy, and [four
doctors] all testified that an ordinarily prudent person with
[the insured's symptoms] would seek diagnosis or treatment."
Id.
___
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Atallah argues that interpreting the Symptoms
Clause in this way runs counter to the traditional function
of preexisting condition clauses, which is to prevent fraud
by protecting the insurer from people who are already sick
but who intentionally delay diagnosis or treatment until
after they purchase insurance.10 We do not agree.
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10. To achieve the fraud-prevention function while at the
same time protecting the insured from being deprived of
benefits for preexisting conditions of which they have no
knowledge, many courts have construed preexisting condition
clauses as applying only when an insured experiences "a
distinct symptom or condition from which one learned in
medicine can with reasonable accuracy diagnose the illness."
Mogil v. California Physicians Corp., 267 Cal. Rptr. 487, 491
_____ ___________________________
(Cal. Ct. App. 1990) (internal quotation omitted and
collecting numerous cases). In such cases, however, courts
generally were confronted with policies containing no
specific definition of preexisting condition, see, e.g.,
___ ____
Hannum v. General Life & Accident Ins. Co., 745 S.W.2d 500
______ _________________________________
(Tex. Ct. App. 1988), or with clauses that defined such
conditions as illnesses -- not symptoms -- that first
"exist," "begin," "commence," "manifest," or enter some
similarly imprecise stage, before the policies became
effective. See, e.g., Mutual Hosp. Ins., Inc. v. Klapper,
___ ____ ________________________ _______
288 N.E.2d 279, 282 (Ind. Ct. App. 1972) ("exist"); Kirk v.
____
Provident Life & Accident Ins. Co., 942 F.2d 504, 505 (8th
____________________________________
Cir. 1991) ("begin"); Lincoln Income Life Ins. Co. v. Milton,
____________________________ ______
412 S.W.2d 291 (Ark. 1967) ("first commences or first becomes
evident"); Mayer v. Credit Life Ins. Co., 202 N.W.2d 521, 523
_____ ____________________
(Mich. Ct. App. 1972) ("first manifested"). Our research
uncovered no reported decision in which a court faced with
language similar to the Symptoms Clause at issue here
nevertheless adopted the foregoing common-law definition.
But cf. Pfeffer v. Reserve Life Ins. Co., No. 89-4698, 1990
___ ___ _______ _____________________
WL 142056, at *3 (E.D. La. Sept. 20, 1990) (construing
preexisting condition clause excluding coverage if insured
experienced "symptoms which would cause an ordinarily prudent
person to seek medical diagnosis, care or treatment" as
meaning "diagnosis, care or treatment for cancer" (emphasis
___ ______
added)).
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It is true that denying coverage under a
preexisting condition clause to a person who at the time of
purchase has no idea that she is ill serves no fraud-
__ ____
prevention function.11 The Policy's Symptoms Clause does
not go so far; it would not exclude coverage, for example, of
Atallah's tumor if she had experienced no symptoms before the
__
Policy's effective date. The Symptoms Clause only denies
coverage for undiagnosed illnesses if the insured is on
notice that something is not right with her; to allow the
_________
insurer to contractually deny coverage for whatever may
ultimately prove to be the cause of the malady in fact does
____
serve the policy of protecting the insurer from deceitful
purchasers. It is not difficult to imagine an uninsured
person experiencing symptoms of unknown origin putting off
medical diagnosis or treatment until he can purchase
insurance.
Atallah, of course, actually did seek medical
diagnosis and treatment before purchasing insurance. But the
plain language of the Symptoms Clause affords no basis on
____________________
11. Nonetheless, courts have enforced contracts containing
clauses that are clearly drafted to achieve such a result.
See Medical Serv. of D.C. v. Llewellyn, 208 A.2d 734, 736
___ ______________________ _________
(D.C. 1965) (denying coverage for gallstone removal when
policy excluded benefits for preexisting conditions "whether
known or not known" by the insured); see also Knepp v.
___ ____ _____
Nationwide Ins. Co., 471 A.2d 1257, 1259 (Pa. Super. Ct.
____________________
1984) (stating that "[w]here . . . a policy of insurance is
drawn to cover only prospective illnesses the insured's
knowledge or lack of knowledge of the pre-existing illness is
immaterial").
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which to make an exception for an insured who in good faith
obtains an incomplete diagnosis and consequently fails to
discover the full extent of her illness before purchasing
insurance. The clause is an objective manifestation of
mutual intent to insure against the risk of future illness or
injury, not against the risk that an earlier diagnosis turns
out to be wrong.
Furthermore, while interpreting the clause exactly
as written in cases of incorrect diagnosis may not obviously
serve a fraud-prevention function, neither does it impair
that function. Medical diagnosis is an inexact art. A
doctor's ability to diagnose an illness correctly may depend
on what symptoms a patient is experiencing at a particular
time; how clearly the patient expresses her symptoms to her
doctor; the doctor's own experience and inclination to
administer tests; and the patient's willingness to undergo
tests sooner rather than later. An insurer may well prefer
to avoid these vagaries entirely and simply fix the time at
which it will assume risk at a point before any significant
symptoms occur. Indeed, Atallah's "contract" with Dr.
Croswell underscores this point. Far from being conclusive,
Dr. Croswell's diagnosis of depression was a starting point
from which he and Atallah hoped to find an underlying cause
and appropriate treatment. While it is unlikely that Dr.
Croswell would have discovered the tumor before August 9, it
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is likely that the course of treatment they agreed to would
have ultimately led to the tumor's discovery had she upheld
her part of the "contract." Atallah's own conduct -- perhaps
beyond her own control because of her tumor, but certainly
beyond Golden Rule's control -- hindered the diagnostic
process by her failure to keep appointments, her reluctance
to undergo expensive tests or hospitalization, and her denial
of the seriousness of her symptoms.
B. The Rationality of the Jury Verdict
_______________________________________
Having concluded that the Symptoms Clause is
susceptible of but a single interpretation, we can only
conclude that a rational jury could not decide that Atallah's
tumor was anything other than a preexisting condition.
Atallah does not dispute that her reclusiveness, severe
depression and impaired judgment were, in retrospect, caused
by her tumor, that the tumor had existed for many years prior
to the Policy's effective date, or that Golden Rule obtained
the requisite opinion of a qualified doctor. While the jury
might reasonably have concluded that an ordinarily prudent
person afflicted with Atallah's symptoms would not have
sought diagnosis or treatment for a brain tumor, that is not
___ _ _____ _____
the test.12 Properly instructed on the law, a rational
____________________
12. The district court incorrectly permitted counsel for
Atallah to argue this interpretation of the contract to the
jury, and we suspect the jury found the argument appealing.
Although the court instructed the jury that Atallah was bound
by the terms of her contract, it refused to provide any
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jury could have reached no conclusion other than that an
ordinarily prudent person whose mental health and ability or
willingness to care for herself had deteriorated to the
extent that Atallah's did in the several months prior to the
Policy's effective date would have sought diagnosis or
treatment -- just as Atallah actually did in consulting Dr.
Preston and Dr. Croswell. This conclusion is in no way
undercut by the testimony of Atallah's expert, Dr. Toran.
Thus, Atallah's tumor falls squarely within the second
definition of the Policy's preexisting condition clause.
We recognize that our literal interpretation of the
Policy's Symptoms Clause may lead to harsh results in some
cases. But "sympathy . . . cannot justify sophistry,"
Hughes, 26 F.3d at 268-69, and the Policy that Atallah
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purchased permits no conclusion other than that her tumor was
a preexisting condition. Therefore, Golden Rule is entitled
to judgment as a matter of law. The judgment below is
Vacated and remanded for the entry of judgment
Vacated and remanded for the entry of judgment
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consistent with this opinion. Costs to appellant.
consistent with this opinion. Costs to appellant.
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clarification of what the preexisting condition clause meant,
which would have counteracted counsel's improper argument.
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