STATE OF NEW YORK
SUPREME COURT: CHAUTAUQUA COUNTY
MELANIE L. ANDERSON
vs Index #H-03494
NIAGARA FRONTIER AUTOMOBILE DEALERS
ASSOCIATION EMPLOYEES HEALTH AND
DONALD H. MICHALAK, Esq.
Attorney for Plaintiff
ALBRECHT, MAGUIRE, HEFFERN & GREGG, P.C.
(William P. Keefer, Esq.
of Counsel) for Defendant
DECISION and ORDER
The motions of both parties for summary judgment are
denied, except that plaintiff is entitled to partial
summary judgment for $1275.95, representing claims
defendant acknowledges were filed by plaintiff.
Plaintiff was employed at Hank Bokman Chevrolet on or
about September 10, 1987. Her health insurance coverage
was effective as of November 1, 1987. On October 20, 1987,
she seen by her doctor for an annual examination. At that
examination the doctor wrote that "laparscopy discussed"
with the patient. Plaintiff denies this. Doctor's notes
After the effective date of her coverage, she was
scheduled for diagnostic examination on November 2, 1987,
January 11, 1988, and surgery at Brooks Hospital on
February 12, 1988.
Defendant denied payment under the pre-existing
condition provision of the health plan.
This Court holds that the exemption from the pre-
existing clause applies to employees of a dealer who joined
the plan after March 1st, 1985. If the word dealer has not
been defined, how would defendant apply the term to a
corporation? Dealer would seem to mean the dealership,
including the employees.
Even if it did apply, plaintiff's visit to her doctor
for a routine examination prior to the effective date of
her eligibility for health coverage did not fall within the
exclusion which reads: "No payment shall be made for
charges related to any condition, disease, or symptom which
existed prior to the date the employee . . . became
enrolled for benefits under this plan and for which the
covered person either saw or received medical treatment or
advise from a Health Care Provider within 12 months
preceding his coverage eligibility date".
There is a question whether plaintiff filed a claim in
time for the full amount of the medical expenses and
whether she sent all the bills to the carrier? She says
yes; the carrier says she only sent in $1245.95 for
hospital charges and $30.00 for the January, 1988 doctor's
In March, plaintiff sent a letter enclosing bills she
had at that time. The records of the doctor indicate the
bills were sent to plaintiff after her letter to the
This issue presents a question of fact for a jury.
There is also a question whether plaintiff obtained
authorization before the operation from the carrier to go
ahead with the laparscopy. Plaintiff says yes, via
telephone call. Defendant says consent needs to be in
writing for this type of surgery.
The insurer can waive this requirement. If plaintiff
can establish to the satisfaction of a jury that such
telephone authorization was given to her and/or her
physician or the hospital, she will have met her obligation
under the contract.
Did the doctor give the insurer notice and obtain
permission to proceed with the operation? Insurer says no.
This presents a question of fact for a jury.
Was the insurer aware of all the bills when it advised
the physician that it closed the case because of a pre-
existing condition? Note by doctor indicates it may have
had his bill at time he was advised case was closed.
In motions for summary judgment, the Court's
responsibility is limited to issue identification, not
issue resolution, except for those that may be resolved as
a matter of law.
This case is 2 years shy of a decade old. That
plaintiff's counsel has not sought discovery in all these
years is a sad commentary. For this reason, the Court
directs both counsel to complete discovery no later than
December 8, 1995 and that plaintiff file a note of issue no
later than December 15, 1995.
The Court grants plaintiff partial summary judgment
for $1275.95 plus interest which is due for plaintiff's
hospital bill and a medical visit, denies the motion of
defendant, and orders a trial of the issue whether she
submitted a proper claim; whether she submitted bills.
For the convenience of witnesses and to expedite
trial, this case is hereby transferred to City Court of
THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER
ORDER SHALL BE NECESSARY.
Dated: October , 1995
Mayville, New York
SUPREME COURT JUSTICE
To all Counsel:
Please take notice that a DECISION and ORDER of which the
within is a copy, is duly granted in the above entitled
action on the day of October, 1995, and duly entered in
the office of the Clerk of the County of Chautauqua on the