*1 555 Academy Medicine New N. 47 J. 358 Jersey, (1966); of of Princeton, Princeton Univ. Press v. N. J. 209 Borough 35 (1961). The burden of proving tax-exempt upon status is the claimant. Trenton v. Div. Tax N. 65 J. Appeals, Super. 1, 5-6 Jamouneau v. Division (App. 1960); Div. Tax 2 N. J. Appeals, (1949).
Substantial revenues are produced tax. Serious by limiting effects upon pat- those revenues can result tern of tax as enunciated Division. by By Appellate failing to restrict the ordinary term to its “refining process” meaning, beyond will be diluted exemption impermissibly intent a tax- Legislature. burden proving status has exempt not been borne the claimant.
I would reverse the judgment Appellate Division. Hughes For Chief Justice and Justices affirmance and Clifford—5. Jacobs, Mountain, Sullivan For reversal— Justice Pashman—1. KISSIL, PLAINTIFF-APPELLANT,
DONALD Y. BENEFI v. CO., CIAL NATIONAL LIFE A INSURANCE CORPORA TION AUTHORIZED TO IN JER DO BUSINESS NEW SEY, DEFENDANT-RESPONDENT. Argued May 4, 1974 March Decided 1974.
Mr. Donald M. Weitzman the cause for argued plaintiff Weitzman, & Glucksman (Messrs. atorneys).
Mr. Robert B. Turk the cause for argued defendant Turk, Cohn and (Messrs. attorneys). Court was delivered by
The of the opinion Plaintiff, of, the ben- J. holder and named Sullivan, a de- eficiary in, Major Expense Policy Medical issued fendant, for medical ex- filed suit reimbursement seeking Matthew, on behalf of his a incurred son child born penses while force. Involved were the medical policy the costs of for a condition of treating Matthew fibrosis.
Defendant denied It admitted that its in- liability. policy sured and the covered members of plaintiff family his against loss from sickness which was defined the as resulting policy or “sickness disease contracted and after the commencing as Policy effective date the person to whose sickness claim.” It also is the basis of admitted that under terms the a child bom the named policy automatically to insured Member,” a became “Covered but only “upon attaining fifteen age of Its contention days.” was that Matthew’s cystic fibrosis had been contracted and had commenced at birth or within a few thereafter, which was days prior to the effective date of as to him. trial,
At defendant moved to dismiss case on plaintiff’s ground did not exist as matter of law. coverage However, trial court ruled that factual existed issue the cystic to when fibrosis commenced. The ease was to the submitted jury returned verdict for plain- tiff. Judgment entered in favor of for plaintiff $3,241.91, the amount medical date, to expenses with the further provision plaintiff would entitled payment future medical expenses incurred by reason Matthew’s condition of up the maximum policy limit of $12,500.
On appeal Division Appellate in an reversed unre- ported opinion, that no factual holding issue was involved since, on the proofs, reasonable minds could not differ as to the disease having commenced and become manifest within the first fifteen of the infant’s life. It held motion defendant’s to dismiss should been have granted. granted This Court certification. 64 N. J. 313 (1973). is an inherited Cystic fibrosis disease indications of it although appear immediately. only disease cannot be cured. The it is sup- Its portive. insufficiency, include lung instability and thick mucous pancreatic glands secretions which tend to block various *4 organs body. case,
In the instant Matthew was born on June 1969 awith mucous of his intestinal re- blockage tract which immediate His condition was quired surgery. diagnosed ileus. condition meconium results enzyme, All mucous'gland pancreatic malfunctions. of the ex- perts that some exists agreed degree correlation between meconium ileus and cystic fibrosis. There was testimony
5S9 ileus. that of all children are born with meconium cystic 10% most, Conversely, all, if not meconium ileus develop children Maraño, cystic fibrosis. Defendant’s medical Dr. expert, said that meconium ileus conclusively pathognomonic is However, or fibrosis. (indicative characteristic) Schiffman, all in- plaintiff’s expert, testified that not a fants born with condition meconium ileus become cystic. In case immediate there was an diagnosis meconium ileus, and had to reliéve surgery performed the condition. a suspicion There was also strong had -fibrosis a thereof baby diagnosis presumptive Enzyme was made. for this condition was at but tempted few days discontinued after because of an adverse reaction. On June 27 a sweat admin test was istered to confirm the fi presumptive diagnosis brosis, but results were inconclusive since child did not sweat He was enough.1 from the discharged hospital on 1969 July 1, with a diagnosis of “cystic meconium —ileus pneumonia.”
In August 1969, Matthew was brought to the Ei- Cystic brosis Clinic at Hackensack on 22 Hospital and August another sweat test administered, time with positive results. ofAll the experts agreed August test established Matthew fibrosis.
At the his present time fibrosis affects eystice his upper respiratory system. He has constant runny rose, has dif- ficulty and is breathing in a required sleep mist tent and take enzymes other drugs. The record does not indicate when this upper respiratory problem itself, manifested although July hospital lists discharge “pneumo- nia” as part the diagnosis.
Under the policy, Matthew became “Covered Member” fifteen days after his birth. The issue whether his cystic test, cystic fibrosis, 1 sweat a reliable indicator of measures body’s Cystic high sodium chloride level. fibrosis children have a level of sodium chloride. *5 after commencing” “contracted was a disease fibrosis him. as to became effective fact man- disease in Division held that the The Appellate infant’s fifteen in the first sufficiently ifested itself then com- without doubt to have life so that it could said menced, thereby excluding coverage. Sank, Dr. do that the are that clear.
We not agree proofs a who who was called as pediatrician, was the attending defendant, that his working diagnosis witness testified was meconium ileus. He stated that the infant’s condition difficult to when the fibrosis “com- very say cystic it a menced,” but that there was thereof presumed diagnosis However, made at one or two of age. about weeks the hos- no stay Matthew’s one-month makes pital report covering until near cystic mention of fibrosis date. discharge Maraño, defendant’s other medical expert, testified and, cystic therefore, fibrosis while congenital, present at not “until may manifest after years may birth or not be until later.” he recognized However, said that in Matthew’s case diagnosis of meconium ileus on the third day life, confirmed of his was pathognomonic fibrosis and amounted to a diagnosis that disease at that time.
Plaintiff’s medical was Dr. expert Schiffman, a pedia- trician and who specialist cystic fibrosis, had has Matthew treatment since 1969. He August under agreed that Mat- thew has fibrosis and that it was at birth. However, his was that opinion the disease was not definitely 22, 1969, until a when diagnosed August sweat test ad- ministered with results. positive He said that meconium not be related to ileus most although treating likely physician finding condition of meconium would fibrosis. suspect cystic However, ileus he said “there are cases of children with intestinal obstruction, meconium ileus, who who cystics are do not have cystic fibrosis.” In he support opinion referred to seven-year old had meconium ileus his who patient birth, but has He noted that the hospital fibrosis. no symptoms *6 not from the discharged that Matthew was record showed for fi- on enzymes (a supportive hospital brosis). fact that all are in experts agreement
The medical it that Matthew has fibrosis and that present birth is not of the ease. Defendant admits dispositive and may appear years case, that in the if the disease did not manifest itself within the first fifteen life, infant’s coverage would exist.
The record indicates while cystic fibrosis is gen- alia, disease, eralized Inter is variable. symptomotology it as an appear condition, intestinal an upper respira- condition tory or liver condition. The problem is to rec- ognize particular condition a certain as manifestation of cystic fibrosis. Dr. Sank and Dr. Maraño both testified that Matthew’s meconium was a ileus or symptom character- istic sign cystic fibrosis. Dr. Schiffman, on the hand, other and disagreed said that there are cases of children with e., meconium ileus who are not cystics, i. that meconium ileus or may may not be indicative of cystic fibrosis.
The policy should be read as the ordinary policy holder would understand it. We take the words “contracted commencing” mean that coverage would exist where the first positive symptoms of the disease did not manifest themselves with reasonable certainty within the first fifteen days Matthew’s life.
In the of all light of the testimony and the varying inferences that could be drawn therefrom, the issue of . whether Matthew’s cystic fibrosis commenced within the fifteen-day period during did coverage not exist as to him, was left properly to the jury. Accordingly, the judg ment the Appellate Division is reversed and the judgment of the trial in court favor of plaintiff is hereby reinstated. bear- The policy question, (dissenting). J.
Clifford, under- Expense Policy,” Medical “Major ing caption family desig- members of his plaintiff took to insure the November “against dated nated on the application hereinafter as defined injury from sickness or loss resulting Sickness is defined hereinafter provided.” and to the extent after the commencing “sickness or disease contracted sickness whose Policy person as to effective date date of the basis of claim.” The effective was born June 30, 1969. infant Matthew January The Member” under the policy 1969. became a “Covered lie days.” of fifteen “upon attaining age are out that “all medical majority points experts it was Matthew has fibrosis and that agreement * * *” *7 not mean at birth but decides that this does present fifteen before commencing” the sickness was “contracted and It me a most days respectable argu- life. seems to that was if dread disease ment can made to the effect that be even or, we one the experts, at birth as are told present then it was contracted and com- assuredly before menced, both, before of fifteen age Matthew attained days. uncomplicated
This rather derives logic and compelling from affliction at once inherited support the nature fi- majority’s and The observation that congenital. birth,” is “an inherited while tech- brosis disease accurate, not all inherited ail- nically disguises fact that ments are at birth.” to ex- “present defendant’s According witness Dr. Maraño pert expertise was in (whose particular the field of cystic fibrosis) sickness achieves character- istic of “inherited” of its being by virtue “transmitted being “con- Asked to define parents.” the genes through of no other witness) made (the inquiry disease” genital at birth.” “present it That distin- termed one he fibrosis is important feature of light guishing to im- attorney’s attempt argue clearly plaintiff’s diabetes, dystrophy to muscular and both analogy perfect (cid:127)which are inherited hut neither of which is congenital thus not “contracted commencing” at birth.1 not,
But I dissent, need for purposes so far go embrace that the case proposition may be decided solely on the conceded point cystic fibrosis was present in this infant at birth. The Court holds that in the present context “contracted and should taken to commencing” mean that would “coverage exist where the first positive symptoms the disease did with not manifest themselves reasonable certainty within the first fifteen of Mat- thew’s life.” On the record T before us would hold that applying test the evidence is abundant and uncontra- dicted that “positive symptoms” of were man- cystic fibrosis ifested with certainty” “reasonable within the first fifteen thus, days; there nowas factual issue for the jury’s deter- mination. Defendant’s motion for at the conclu- judgment sion of the case should have been granted.
The infant afflicted, has been everyone with agrees, fibrosis since the he day born, 1969. June first positive symptoms were evident alarmingly at birth. Ac- cording Sank, the attending pediatrician, the pre- apprehension 1 Plaintiff’s contentions reveal an the carrier might escape liability consequent upon for loss what he classifies aas hereditary ailment, appear many of which approach recognize While I think this fails to Shears. the critical “congenital” “hereditary” distinction between conditions and in *8 appropriately employs example, the “diabetes” I would call also at (A) tention N. (2) to J. 8. A. 17:38-13.2 in effect at the time this policy issued, 17B:26-5(b), January was and to N. J. 8. A. effective 1, 1972, particularly provision following policy to in the the in question, statutory requirement: harmonious with the * * “TIME LIMIT *(b) claim ON CERTAIN DEFENSES: No years policy for loss incurred after two from the date of of issue ground shall be physical reduced or denied on the that a disease or coverage by specific condition description excluded name of prior on the date coverage of loss existed to the effective date of policy." of this cystic fibrosis:2 at the time of birth sumptive diagnosis Panzarino, Dr. summary of discharge The Overlook Hospital meconium ileus to relieve the surgery who the performed of June operation even the condition,' reveals that before di birth, after a “preliminary than hours seventy-two less made. meconium ileus” was cystic of fibrosis with agnosis the form by attached to Dr. Panzarino’s statement that shows made under the in policy question claim was intestinal obstruc of “meconium with ileus “symptoms” the date of birth. tion fibrosis” first on cystic appeared included a month after summary, The discharge ileus with meconium “final of fibrosis diagnosis” — at the unsuccessful volvulus” this despite and midgut test, sweat way absolute of the certainty by to achieve tempt until 22. The successfully August which was not performed to the two weeks thereafter letter attending pediatrician’s had been family indicated family’s regular pediatrician hospital in the baby’s “problem” informed a continuum was, short, There fibrosis.” “part effective prior contracted and commencing sickness Matthew. applied date manifest- positive symptoms test “first majority’s satis- certainty” assuredly with reasonable themselves ing of an and definitive di- short exclusive something by fied the date sweat test August confirmed agnosis and commenced disease was contracted insists the p’aintiff The result here should policy. meaning within on, nor a factual dispute to turn can touching made not be in, the of a definitive issue be found absence the ultimate announced within the first fifteen days, been having diagnosis Dr. physician’s adopt refusal to treating nor on the present meconium ileus is pathognomic Marano’s view he acknowledged only nevertheless (although pre point testimony in his said “there was 2 At another Sank diagnosis age” fibrosis at about one or two weeks of sumed day. any than fifteenth event earlier *9 who have meco- small very patients “very, percentage record have out to be “cystic”). nium ileus not turned first critical fifteen day period is clear that within the just were manifested not positive were certainty” they glaringly with “reasonable was there- supportive apparent frighteningly immediately. undertaken fore affirm reversal of the Appellate
I would Division’s de- in favor of and enter plaintiff judgment judgment fendant.
Mountain, J., in this joins opinion. dissenting Hughes Jacobs, and Justices For reversal—-Chief Justice and Pashman—4. Sullivan Mountain—3. Clifford
'For affirmance—Justices