Fassio v. Montana Physicians' Service
553 P.2d 998
Mont.
1976
Check Treatment

*1 FASSIO, MELVIN FASSIO аnd MARITA husband JUNE Respondents, wife, PHYSI v. MONTANA Plaintiffs Appellant. SERVICE, Defendant CIANS’ No. 13102. March 1976. Submitted 11, 1976. May Decided Rehearing Sept. Denied 553 P.2d 998. *2 Cain, Helena, &

Hughes, Bennett Alan F. Cain for (argued), defendant and appellant.

Garnaas, Hall, Pinsoneault, & H. Riley Pinsoneault (argued), Missoula, for plaintiffs respondents. LESSLEY, W. HONORABLE W. District Judge, sitting Harrison,

for Mr. Chief delivered the opinion Justice court. Marita,

The Fassios are the who parents daughter afflicted known disorder by cytogenetic Mongolism; they Service; were members of the Montana their secured to them and to Marita membership for enumerated medical and surgical services. hospital,

We are concerned three health for running the April April and 1973. The treatments to Marita by physi- administered 18, 1971, 7, cian Dr. Turkel were on January June November On on finally August were informed would respondents of the claim for above services. deny payment The case court without Before was tried district a jury. facts, submission of the issued what he proposed judge decision; his after termed that stated ‍‌​​​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​​​‌‌‌‌​‌​‌‌​‌​​‌‌​‌‌​​​‍position “Opinions” his findings judge adopted submission of attorneys, fact and cоnclusions of as the court’s findings “Opinions” Fassios should be law. The concluded that respondent judge for full for all the medical services performed reimbursed in Turkel, Detroit, D.- of their infant M. daughter Henry Michigan. Its is premised Service appeals. appeаl that the services Dr. Turkel so performed proposition therefore not

for were worthless unnecessary Marita the health agreements. court’s describe “Opinions” poignantly district words: in treatment of their these daughter Fassios’ odyssey suffered one of life’s “In the Plaintiffs herein January, with a most unfortunate when their was born tragedies daughter in a condition resulting commonly chromosome deficiency to com- known as advised They immediately Mongolism. *3 Boulder, at the Montana School for the Retarded girl mit to Montana; at that institution talking within week Pallister, of leading with Dr. one the country’s Philip Dr. Pallister them a on experts Mongolism. gave prescription and which which on his and experience knowledge, was based hundred cent improvement would about one bring per home and baby future. That was: ‘Take baby’s prescription her love attention.’ Plaintiffs have followed lots of and give emotional and his advice and their daughter’s present physical, first its effectiveness. After the year mental state witness to more to sеarch for more Plaintiffs began earnestly passed search led them Dr. from the medical This help profession. * *” * Detroit, of Michigan. Turkel Henry to Dr. were referred the plaintiffs The record shows Montana; Missoula, Law, that they M. M.D. by Dr. Turkel J. 28, 1971; his charge Turkel on first visit to Dr. madе their June $750; claims of his subsequent claim and this $3,000 were denied Montana by for reimbursement told the Fassios its denial was justified Service. The appellant were at best because the services as Turkel performed by practice”. timewise, Dr. Turkel’s treatments Chronologically June 1972 are within the ambit of January clearly contract; 1972 is the treatment November April, and the final treatment of by 23, 1973 is under the time limit of the 1973 agreement.

We will three discuss the contracts separately. Considering the 1971 contract we cut through dirеctly verbiage go entitled Medical Endowment.” We “Group Major portion find the definition of the covered medical controlling expenses Subsection 1 of Section A in the following language:

“* * * usual, and reasonable customary, incurred charges Member for services or necessary performed prescribed ** licensed Doctor of Medicine for an illness *.”

Section ofC the endorsement called Exclusions and Limitations out the spells limiting nullifying language stated. The of the exclusion states pertinent language no benefits shall be for “services and provided supplies incidental to or for treatment of illness.” necessary of the 1972 contract are identical with the provisions 1971 agreement.

The basic and exclusions limitation of both provisions carrier, 1971 and 1972 limit reimbursement Service, a licensed Doctor of prescribed by Medicine. Dr. Turkel is a he, Doctor, ‍‌​​​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​​​‌‌‌‌​‌​‌‌​‌​​‌‌​‌‌​​​‍Doctor Medicine and as a Medical performed the Marita; services for a more fact is that the Fassios compelling Law, were sent to Dr. Turkel referral of Dr. M. Henry *4 Missoula, M.D. of Montana.

We look at of characterization of the actual problem Dr. Turkel for Marita. The performed by describes those services as “worthless unnecessary” further of no real value in the conditions for which treаting that the district court’s It is admitted prescribed. as to Dr. Turkel’s services are not

“Opinions” complimentary court, but it does state: and his fees shocked “* * * illness, a for attention from This this birth defect calls doctor as much as other terminal illness. just any medical more that attention can do nothing even be the medical may that than to is done can everything being assure parents done, administration but even this is important proper be of Pallister’s original prescription.” Dr. parents of from Montana disallowanсe McCabe did not call Dr. Turkel’s services signed by James J. no value in treating and of real unnecessary” “worthless rather the services performed conditions for which prescribed, as “unac- 1971 and 1972 contracts were described or medical ceрtable “experimental.” the word It is an necessary. We consider adjective in the use the word therefore is term of of degree. Implicit services, as prescribed by area necessary doctor, necessary is the conclusion such serviсes are when so prescribed and more necessary expense particularly ar and law review An exhaustive search cases performed. necessary. ticles fails to us an exact definition of word give we word In this context might say ambiguous, in the but not so hold as it is used these contracts we do context of medical services prescribed In we must construe it for liberally event physician. any . these Travelers benefit of the insured under party agreements Co., 198, 441 P.2d Ins. v. 151 Mont. Casualty Co. American 177; America, v. 150 Mont. Williams Ins. Co. North 395; & v. P.2d St. Paul Marine Ins. Co. Thompson, 150 Fire 1048; v. Virginia Mont. P.2d A.L.R.3d Jones Co., Mutual 145 Mont. 401 P.2d Aleksich v. Surety Ass’n., Acc. 164 P.2d 162 A.L.R. Mont. carefully of these insurance was contracts language and used in the absence the Fassios chosen. This done *5 carrier, Ser- Montana Physicians’ and limit carefully protect vice, If Montana Physicians’ liability. extended against for, them then let the risk contracted exclude or limit wishes to in this jur- The law is clear no doubt. in words leave do so against construed narrowly clauses are isdiction that exclusion Mont. Insurance Company, Atcheson v. the insurer. Safeco 549; v. Par- Mutual Automobile Co. State Farm 527 P.2d 514 P.2d 123. 109 Cal.Rptr. 10 Cal.3d tridge, contracts. health insurance We are dealing and 1972 provide The coverage agreements medical for Fassios reimbursable services are prescribed As in the instant case those services. should be That Doctor Medicine. licensed of the language to meet the demands and is sufficient 1972 contracts. with the concerns itself health coverage agreement The 1973 in this language 1973. The services rendered cоntained in the same as the language is in the main agreement an in- there is however of 1971 and agreements addition in We find this or addition. teresting change (J) of the exclusion article: Subsection * *

“* which is medical treatment experimen- surgery does not constitutе accepted tal in nature or which (Emphasis ‍‌​​​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​​​‌‌‌‌​‌​‌‌​‌​​‌‌​‌‌​​​‍supplied.) practice.” Service, this Montana supplied appellant, the self-same agreement; in the

language McCabe, Secretary used in the letters language James change using This spеcific Service. and the word phrase for excludes the services bargained 23, 1973. Turkel on July the Fassios from Dr. for paid as we have applied that the rules of construction follows then and 1972 are applicable. of 1971 them on agreements in 55 A.L.R. 1246: it is statеd Considering that it is made by insurance contract peculiar “The group the insurer and the instead of between the insurer and employer, insured, insurance, as in other contracts thus affecting — insurer, insured, four parties, employer, ** *” beneficiary. The facts of the instant case clearly emphasize peculiarity of such an insurance The first one this series of health policy. under which the Fassios were the beneficiaries and Courthouse, Missoula, Missoula Montana was County the group- *6 15, continued its from to еmployer 1971 coverage April April 15, 1972; the was continued with an identical coverage policy 15, 1973; 1972 to then and ad- April April suddenly beneficiaries, Fassios, without notice to the the ex- mittedly word and cluding phrase “experimental” were inserted.

It is elemental that no insurance is premium group valid unless it satisfies the applicable statutory requirements. v. Whitney Continental and Accident 89 Idaho Company, Life 96, 403 P.2d 573. The concern and of the supervision is found in this legislature of section 40- pertinent portion 4102(2), R.C.M.1947:

“(2) A that the insurеr will provision furnish the policy- holder for to each or member of the delivery employee insured a statement in form of the group, essential features of summary * * the insurance *.” The mandate of this is the protection beneficiary section insuranсe It information rights requires group policy. so the individual member of knowledge group will know. it True relates to the at ‍‌​​​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​​​‌‌‌‌​‌​‌‌​‌​​‌‌​‌‌​​​‍its initial stage; but this basic and “rule of notice” equitable equal applies force to the facts of the 1973 The even tenor of the agreement. 1971 and 1972 contracts was broken as unilaterally Marita., Fassios and their had as daughter personal impact the words of exclusion used were the words used very Service in its notice of disallowance under the 197*1and 1972 contracts. life insurance сase law Group

327 on the that a does allow without notice theory such is involved. v. Hancock Mutual Fagan vested interest Life John 142, 144; Co., Ins. 200 v. Assur. Equitable F.Supp. Hayes Life Soc., v. (infra) S.W.2d Mo.App. Lindgren Co., Ins. N.E.2d Metropolitan Ill.App.2d Life course, will not insurance as to group vesting, rule life here, but it indicate the concern of courts on group does apply insurance. be a surely

In insurance situation here there must group to allow beneficiary of such insurance group elsewhere; to secure other opportunity particularly so v. where the risk is excluded. Poch abruptly States, 343 Pa. 22 A.2d Equitable Assur. Soc. United Life 590, 142 A.L.R. 1279. Soc., Assur. 235 Mo.App. v. Hayes Equitable Life that case on this The facts in is persuasive point. S.W.2d was annually that the renewed group policy 1932 the year In 1927-1931 inсlusive without change. The com- to exclude clause. disability contract modified sent booklets out involved in the insurance pany policy board that notified on the bulletin letters and notices posted notice, *7 denied actual change. benеficiary employees those to him even under letter had been sent personally; no entitled to coverage held that the insured was facts the court in held that the old policy the old the court effect policy; beneficiary. force that particular remained in as to a burden insurer upon is not too placing large in abrupt that say they, by Fassios, to the in effect without notice kind any 1973 contract to comply 1972 contract such failure revived the terms of the to the fairness equity law and with simрle with the state (the beginning The time span April beneficiaries. (the time date of agreement) Turkel) days. with Dr. mere were contracted had been insurance paying under this group policy The Fassios monthly payments starting September continuing to and pаst July

We do not hold this decision as to the 1973 agreement insurance group individual group beneficiaries must have written personal with each but we change, do hold that in with the thrust of keeping section 40-4102, a form of the summary essential features of the change should be brought attention of the beneficiaries under the insurance. Obviously exclusion of specific such a change; obvious is that equally and fairness equity demand such be made available to the knowledge beneficiaries.

We affirm. CASTLES, MR. HASWELL and DALY concur. JUSTICES ‍‌​​​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​​​‌‌‌‌​‌​‌‌​‌​​‌‌​‌‌​​​‍MR. C. HARRISON (concurring JUSTICE JOHN dissenting).

I concur and dissent. Clearly are plaintiffs entitled to coverage for the first visit made to Dr. Turkel. The reference was made a licensed this state practitioner and there was no way could determine that the treatment would be found to be after the fact.

However, the visits thereafter followed notice for, that such treatment would not be paid the reasons why the services would be denied. of this Respondents, spite notice, continued treatment at their own risk. I would not au- thorize for the visits any recovery the notice from following ap- pellant.