SUPREME COURT: CHAUTAUQUA COUNTY

_________________________________

MELANIE L. ANDERSON

Plaintiff,

vs Index #H-03494

NIAGARA FRONTIER AUTOMOBILE DEALERS

ASSOCIATION EMPLOYEES HEALTH AND

WELFARE TRUST

Defendant.

_________________________________

DONALD H. MICHALAK, Esq.

Attorney for Plaintiff

ALBRECHT, MAGUIRE, HEFFERN & GREGG, P.C.

(William P. Keefer, Esq.

of Counsel) for Defendant

DECISION and ORDER

GERACE, J.

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

say otherwise.

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

visit.

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

carrier.

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

Dunkirk.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.

Dated: October , 1995

Mayville, New York

____________________________

JOSEPH GERACE

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

same date.