ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plаintiff Charlotte Pitcher brought this action for damages against her employer’s health insurer, Principal Mutual Life Insurance Company. Pitcher’s coverage under the Principal Mutual policy became effective on September 17, 1992. One day later, a biopsy showed that Pitcher had breast cancer. She underwent surgery and radiation therapy. Principal Mutual has refused to pay for Pitcher’s biopsy, surgery, and radiation treatments, relying on the preexisting-condition clause in the insurance policy. The parties have filed cross-motions for summary judgment, and the facts concerning liability are not in dispute. The Court finds that, under the terms of the policy, the treatment and service that Pitcher received before the policy took effect were “for” her fibrocystic breast disease rather than “for” breast cancer. In the alternative, the policy is at least ambiguous as applied to Pitcher’s combination of conditions, and must be construed in favor of the insured. The Court therefore grants plаintiffs motion for summary judgment as to liability and denies defendant’s motion for summary judgment.
Undisputed Facts
In May 1992, Pitcher began working on a part-time basis for The Center for Real Estate Education and Research in Bloomington, Indiana. In June 1992, the Center and Pitcher agreed that she should work full-time, but the start of her full-time employment was delayed until August 1992 because her immediate supervisor planned to be out of the country until then. Pitcher actually began full-time employment with the Center on August 17, 1992. She was insured effective September 17,1992, under a group medical expense insurance policy underwritten by defendant Principal Mutual and issued to the Center. The insurance policy contains a provision that excludes coverage for a “preexisting condition.” The policy defines a preexisting condition as “a sickness or injury for which a person was confined or received treatment or service in the 90-day period before becoming insured.”
For approximately twenty years, Pitcher has had lumps in one or both breasts from time to time. According to her physician, these lumps had been manifestations of fibro-cystic breast disease, a common condition which causes benign cysts, masses, and formations of fibrous tissue in the breasts. The undisputed evidence in this record on this motion is that, despite being labeled a “disease,” the condition does not cause any deterioration in health, does not require treat
*906
ment, and does not develop into breast cancer. Affidavit of Dr. Harold Manifold ¶2.
See also Hardester v. Lincoln National Life Ins. Co.,
On July 31, 1992, Pitcher had a routine physical examination in which lumps in both breasts were detected. Her physician believed the lumps were most likely signs of fibrocystic breast disease and would abate if Pitcher abstained from caffeine. He advised her to abstain from caffeine and to return in six weeks for a recheck. Pitcher returned for an exam on September 15,1992, two days before her insurance coverage became еffective. Her physician found the lumps were still palpable in both breasts, and he referred her for a mammogram that day. It is undisputed that, because Pitcher was 60 years old and had not had a mammogram in the past year, he would have recommended a mammogram even if the lumps had not been present. The mammogram showed a mass in the left breast that led the radiologist to recommend a biopsy. A biopsy was done three days later, September 18,1992, the day after Pitcher’s insurance coverage took effect. The biopsy showed a carcinoma of the left breast. Pitcher had a lumpectomy on October 5, 1992, followed by radiation treatment through December 27, 1992.
Pitcher submitted claims for benefits to Principal Mutual. After reviewing Pitcher’s medical records, Principal Mutual concluded that the biopsy, lumpectomy, and radiation were treatments for a preexisting condition and therefore denied coverage. Pitcher sought review of that determination, and Princiрal Mutual stood by its denial of coverage. Pitcher then brought suit in the Monroe Circuit Court for breach of contract, breach of duty of good faith and fair dealing, and negligence. Principal Mutual properly removed the case to this Court because the action necessarily arises under ERISA, 29 U.S.C. §§ 1001,
et seq.,
and all of Pitcher’s state law claims are preempted.
See Metropolitan Life Insurance Co. v. Taylor,
The Merits
Summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
E.g., Glass v. Dachel,
The insurance policy in this ease does not contain language expressly giving the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. The parties therefore agree that this Court should conduct a
de novo
review of Principal Mutual’s denial of benefits.
See Firestone Tire & Rubber Co. v. Bruch,
Accordingly, this ease becomes a matter of contract interpretation. Because federal law occupies the field of rights and obligations under ERISA-regulated benefit plans, the courts are to develop and apply a federal common law of contracts to determine those rights and obligations.
See Pilot Life Ins. Co. v. Dedeaux,
interpret the terms of the ... policy “in an ordinary and popular sense as would a [person] of average intelligence and experience.” Evans v. Safeco Life Ins. Co.,916 F.2d 1437 , 1441 (9th Cir.1990) (quoting Allstate Insurance Co. v. Ellison,757 F.2d 1042 , 1044 (9th Cir.1985)). Ambiguous terms in an insurance contract will be strictly construed in favor of the insured. Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co.,924 F.2d 633 , 638 (7th Cir.1991). However, we will “not artificially create ambiguity where none exists.” Evans,916 F.2d at 1441 .
Phillips v. Lincoln National Life Ins. Co.,
The key language in this contract is very short. For a period of 90 days after the policy takes effect, the policy does not cover treatment for “a sickness or injury for which a person was confined or received treatment or service in the ninety (90) day period before becoming insured.” Both sides argue that this language is unambiguous and in their favor. 1 Pitcher argues that the lumps detected in the July 15, 1992, examination were not a “sickness” or “injury,” but were merely a symptom of a condition that both she and her doctor believed was fibrocystic breast disease. She argues that any treatment or service she received before the policy took effect was “for” fibrocystic breast disease, and not for the cancer that was diagnosed with the biopsy after the policy took effect. Principal Mutual argues that the cancer was “manifest” in the form of the lumps before the policy tоok effect, and that the examinations and diagnostic services Pitcher received prior to the diagnosis of cancer were therefore treatment or service “for” the cancer, regardless of whether it had been diagnosed at the time.
“The purpose of pre-existing condition clauses is to protect ‘insurers from fraudulent applicants seeking coverage for known diseases while protecting innocent premium paying insureds from being deprived of benefits for pre-existing conditions of which they have no knowledge.’ ”
Hardester v. Lincoln National Life Ins. Co.,
The books contain many cases concerning preexisting condition clauses in health insurance contracts. The cases show that not all preexisting condition clauses are created equal. Some do not define the term “preexisting condition.” Others apply only if, before the policy took effect, the condition was “manifest” through symptoms that would either prompt a reasonable person to seek medical care, or allow a medical professional to make an accurate diagnosis. Others, like this one, limit the term to conditions that have been treated. Some policies exclude any coverage for preexisting conditions. Others provide coverage for the condition after the policy has been in effect for some period of months. Some policies exclude coverage for a condition that has existed at any earlier time. Others exclude coverage only *908 for conditions that have produced symptoms or, like this policy, required treatment for some specified recent period of time.
From the array of ease law applying various preexisting condition clauses, both parties have cited a number of cases to support their respective positions. Generally, those eases apply specific preexisting condition clauses to a variety of situations where the insureds showed some symptoms or received some treatment before their policies took effect, but where their real illnesses (or most serious illnesses) were not diagnosed accurately and treated until after the policies took effect. Thе decisions are far from uniform. Because each case is governed by a specific contractual provision, of course, the precedents are of limited value. This case must be decided by applying the specific language of this preexisting condition clause to this specific factual situation. The precedents nevertheless help illuminate the issues before this Court in applying this contract to this claimant.
Principal Mutual asserts that “the great weight of authority” supports its position. It supports that claim with cases holding that preexisting condition clauses in health insurance policies excluded illnesses that had produced symptoms before the policies took effect but that had not been diagnosed until after the policies took effect. A recent example, which discusses the issue in considerable detail, is
Mogil v. California Physicians Corp.,
The
Mogil
court observed that in cases involving policies that failed to define a “preexisting condition,” a majority view had emerged that an “ ‘illness is deemed to have its inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness.’ ”
Id.
at 491 (quoting John C. Williams, Annotation,
Construction and Application of Provision in Health or Hospitalization Policy Excluding or Postponing Coverage of Illness Originating Prior to Issuance of Policy or Within Stated Time.,
In
Mogil,
the policy excluded cоverage for conditions that were “manifest to the Covered Person.”
Mogil
held that this policy excluded coverage for a cancerous mole on the insured’s shoulder where, before the policy took effect, the insured and her husband had noticed that the mole had grown and changed color, and had discussed seeking medical advice for it. 267- Cal.Rptr. at 494. That evidence showed the condition had been “manifest.”
2
The provision in
Mogil
had been drafted to define preexisting conditions in terms of the majority common law rule requiring that the condition be “manifest.” Most other cases cited by Principal Mutual involved either similar provisions for “manifest” conditions or the common law rule where the policy used no definition.
See Hannum v. General Life & Accident Ins. Co.,
*909 These cases support the generаl proposition that a preexisting condition can be “manifest,” and therefore excluded, before a precise and accurate diagnosis is made. These cases are not controlling here because the Principal Mutual policy in question does not use the “manifest” language in the relevant definition. This policy focuses instead on treatment and service. It very clearly provides coverage for even an illness that produces symptoms so long as the insured was not “confined” and did not “receive[] treatment or service” for that illness in the 90 days before the policy took effect. Accordingly, the majority common law rule that has been applied to policies without definitions, and the cases like Mogil applying policies that adopt the “manifest” language from that common law rule, do not apply to this case.
The “treatment or service” that Pitcher received before the policy took effect consisted of: (1) the routine examination on July 31, 1992, that detected lumps in both breasts, resulting in advice that she abstain from caffeine, (2) a return examination on September 15, 1992, prompted by the lumps, and (3) a mammogram of both breasts on September 15, 1992, that was also prompted by the lumps, but which would have been done whether the lumps were present or not. In terms of the Principal Mutual policy, the issue is whether that “treatment or service” was “for” fibrocystic breast disease or whether any of it was instead “for” breast cancer. If any of the treatment is deemed to have been “for” breast cancer, then Pitcher’s cancer would be excluded from coverage.
Nothing in the Principal Mutual policy offers special guidance in determining when treatment or service is “for” one condition or another, at least in this factual context of combined conditions. The Court therefore turns to the scant case law involving similar preexisting condition clauses (focusing on treatment “for” a condition) as applied to combinations оf conditions. The case most closely on point is
Hardester v. Lincoln National Life Ins. Co.,
In Hardester, as here, the insured had a history of fibrocystic breast disease, and a routine physical revealed the existence of lumps in both breasts before the policy took effect. In Hardester, as here, the insured and her physician believed the lumps were merely signs of fibrocystic breast disease, but undertook some follow-up measures to be certain. In Hardester, the insured was examined again the same day the policy took effect. Her doctor recommended a mammogram. The mammogram was negative, but a week later the doctor removed a mole from the plaintiffs breast and recommended a biopsy of the mass in one breast. The biopsy showed the mass was malignant, and the plaintiff then had both surgery and chemotherapy.
The policy in
Hardester
defined a preexisting condition as “a Sickness or Bodily Injury for which You have received medical attention (care, treatment, services, medication, diagnosis or consultation) prior to” the effective date of the policy. The policy defined “sickness” as “a disturbance in the function or structure of Your body which causes physical signs and/or symptoms and which, if left untreated, will result in deterioration of the health state of the structure or system(s) of Your body.”
The district court assumed that the insured actually had breast cancer before the policy took effect, but she had not “received any ‘medical attention’ for it. The cancer had not been diagnosed prior to [the effective date], and the care, treatment, service and сonsultation that plaintiff had received had only been for the fibrocystic disease.”
The Fourth Circuit panel disagreed. As the majority viewed the case, the insured had received, care, treatment, services, and consultation “for or relating to the breast mass which a later biopsy revealed to have been malignant.”
Judge Hall dissented from the panel decision in Hardester, focusing on the combination of conditions that was present there:
Lacking evidence, the insurance companies resort to distortion of the record and of the district court’s opinion. Their most pervasive gimmick is to absolutely ignore a fact undisputed in this record — the large ropey fibrocystic mass and the small carcinoma were merely, and luckily, coincident. From the very beginning of their briefs “Statement of the Case,” the insurance companies refer to “the mass” as if a single condition were involved. Through this distortion, the companies are then able to make arguments that “the mass” had “caused physical signs or symptoms” and had received “medical attention” before the effective date of the policy. The companies have convinced the majority to look at the case this way, but they have not convinced me.
The precedential status of Hardester is now uncertain because the Fourth Circuit has voted to rehear the case en banc and has vacated the panel opinion that reversed the district court decision. Neverthelеss, this Court believes the analysis of the district court and the panel dissent in Hardester is persuasive because it focuses directly on the problem of determining whether a particular medical treatment or service was “for” one condition or another when two conditions exist simultaneously, but only one is known.
Another analogous case is
Ross v. Western Fidelity Ins. Co.,
Applying Mississippi law, the Fifth Circuit reversed and held that the treatment the girl received when she was first born was not treatment “for” the heart defect. “Since the heart defect was not diagnosed during Jennifer’s first week, the advice and treatment she received at that time could not have been
for that condition;
rather, pulmonary hypertension was the only condition diagnosed and treated at that time. Thus, the plain language of the clause leads to the conclusion that it does not exclude coverаge of the heart defect.”
We should also make clear that our case only applied the specific language of the preexisting condition clauses of this policy in determining that summary judgment was inappropriate. Our holding is not to be interpreted to say that diagnosis is always required in order for the underlying condition to be treated, but there is at least a reasonable argument that, under the language of the second clause of the definition of preexisting conditions, treatment for a specific condition cannot be received unless the specific condition is known. One who has been treated for chicken pox has not necessarily been treated for small pox. Although arguments can be made that favor the insurer’s interpretation of the clause, the clause is, at best, ambiguous.
Ross v. Western Fidelity Ins. Co.,
This Court finds the reasoning of the district court and panel dissent in Hardester, with its uncannily similar facts, and the Fifth Circuit in Ross to be persuasive here. Because Pitcher’s physical examination in July was routine and merely detected lumps that were treated as fibrocystic breast disease, that examination was not treatment оr service “for” breast cancer. Similarly, the follow-up examination was not “for” the breast cancer, but was instead prompted by the apparent fibrocystic breast disease. The mammogram done the same day went a step farther, but it was done on both breasts, one that later turned out to have only fibrocystic breast disease, and one that had both fibro-cystic breast disease and a carcinoma. In addition, the undisputed evidence is that, because of Pitcher’s age, the mammogram would have been performed regardless of the presence or absence of detected lumps, and regardless of whether the cancer was present. Because Pitcher would have received all the treatments and services she received before the policy took effect regardless of whether the cancer was present, none of *912 those treatments or services were “for” the cancer.
Principal Mutual argues, however, that the Seventh Circuit’s recent decision in
Bullwinkel v. New England Mutual Life Ins. Co.,
The insurance policy in
Bullwinkel
excluded coverage for “a condition, sickness, or injury for which you or your dependent were seen, treated, diagnosed, or incurred medical expense in the six-month period just before insurance starts.... ”
Id.
The insurer in
Bullwinkel
argued that because the lump turned out to be cancerous, the medical examination of the lump in July “was actually treatment for cancer,” so that the cаncer was an excluded preexisting condition.
Is a malignant breast lump — discovered before the effective date of an insurance policy but not definitely diagnosed as cancer until after coverage commenced — a “condition, sickness, or injury” for which [the insured] was “seen, treated, diagnosed, or incurred medical expenses” in July? Certainly, a malignant breast tumor is a “condition” and a “sickness.” True, [the insured] was never “seen, treated, diagnosed” specifically for breast cancer in July, nor did she incur medical expenses specifically for breast cancer in July. But she was “seen, treated, diagnosed” and she did incur medical expenses for a breast lump in July. The lump was discovered in September to be cancerous. We may infer from this fact that the lump was also cancerous in July. So, even though [the insured] did not know the lump was cancerous in July, her visit with the doctor in that month concerning the lump actually concerned cancer. It follows that [the insured] was “seеn” and “treated” and incurred medical expenses for her cancer in July. Therefore, any post-policy treatment concerning the same condition is not covered.
Obviously, this case is not an authorization for summary judgment in all future cases dealing with pre-existing conditions limitations. Several attributes make this case unique. First, the lump discovered in July was not a trivial and inconclusive symptom. See Kirk [v. Provident Life & Acc. Ins. Co.,942 F.2d 504 , 506 (8th Cir.1991) ]. Consider the hypothetical where a person purchased cough medicine in one month, then obtained insurance, only to learn in the next month that he had lung cancer, which possibly caused his hacking. A district court would not be able to conclusively determine whether treatment for the cough was actually treatment for the cancer, without the benefit of an evidentia-ry hearing.
Although
Bullwinkel
also dealt with the process of diagnosing breast cancer, there is a critical factual difference between the present case and
Bullwinkel.
In this case, unlike
Bullwinkel,
plaintiff Pitcher had a long history of fibrocystic breast disease. When lumps appeared in both breasts in July 1992, both she and her doctor thought the lumps were manifestations of fibrocystic breast disease. As in
Hardester
and
Ross,
this case involves a combination of two different conditions. On this record, it is clear that Pitcher would have received all the services she received before the policy took effect — the routine examination, the follow-up examination, and the mammogram — regardless of whether she had breast cancer. The treatment and service that Pitcher received before the effective
*913
date of the policy therefore were not “for” what turned out to be breast cancer. In
Bulhvinkel,
by comparison, there was no other condition present. Once the cancer was diagnosed, it became clear that the condition that had been the subject of treatment was the cancer, and
only
the cancer. As the Seventh Circuit said, “her visit with the doctor ... actually concerned cancer.”
Essentially the same analysis applies to two other cases cited by Principal Mutual. In
Cury v. Colonial Life Ins. Co.,
In
Fischman v. Blue Cross & Blue Shield of Connecticut, Inc.,
This Court does not hold that Principal Mutual’s preexisting condition clause applies only to conditions that have been definitively diagnosed. As Principal Mutual points out,
Bullwinkel, Cury, Fischman,
and many other cases have rejected arguments that a disease must be diagnosed accurately before it is covered by various forms of preexisting condition clauses. Some of those courts have expressed concern about doctors and patients deliberately delaying diagnosis of obviously serious conditions until after a policy takes effect. That sort of behavior would plainly allow serious and costly distortion of the distribution of risks, as well as dangerous delays in treatment.
See, e.g., Fischman,
For these reasons, the Court holds that, under the governing language in the Principal Mutual policy, Pitcher received no treatment or services “for” the breast cancer before the policy took effect. However, there is also another, independent basis for the Court’s decision on the merits. That basis is suggested by the disagreements among the judges in
Hardester
and by the reheating opinion in
Ross.
In developing the federal common of law of contracts to interpret contracts subject to ERISA, the Seventh Circuit has strongly endorsed the rule that ambiguities in insurance contracts are resolved in favor of the insured.
Phillips v. Lincoln National Life Ins. Co.,
In Phillips the Seventh Circuit explained in detail its reasons for following the rule of contra proferentem — construing ambiguities against those who drafted them — in this ERISA context:
Insurance policies are almost always drafted by specialists employed by the insurer. In light of the drafters’ expertise and experience, the insurer should be expected to set forth any limitations on its liability clearly enough for a common layperson to understand; if it fails to do this, it should not be allowed to take advantage of the very ambiguities that it could have prevented with greater diligence. Moreover, once the policy language has been drafted, it is not usually subject to amendment by the insured, even if he sees an ambiguity; an insurer’s practice of forcing the insured to guess and hope regarding the scope of coverage requires that any doubts be resolved in favor of the party who has been placed in such a predicament.
Under Phillips and the other Seventh Circuit cases dealing with ambiguities in ERISA policies, the issue here may be stated as whether a person of average intelligence and experience, reading the definition of preexisting condition in the Principal Mutual policy, should conclude that Pitcher’s routine physical examination on July 31, her followup exam, and mammogram on September 15 were “for” breast cancer or “for” fibrocystic breast disease. 5 The preposition “for” in the Principal Mutual policy focuses the inquiry on the purpose of the treatment or service. This common (and ordinarily clear) English word does not, however, tell insureds, them doctors, or Principal Mutual how they should apply the clause to combinations of conditions like Pitcher’s situation here.
The problem in both Hardester and in this case is how to apply the policy language on treatment or service “for” a particular condition when the routine treatment “for” another condition includes tests to exclude the possibility of the second condition. Are the tests “for” the first condition or “for” the second condition? The policy does not provide any guidance on the issue. This record does not show any medical or causal link between Pitcher’s fibrocystic breast disease and her breast cancer. In fact, the record shows quite clearly that Pitcher would have received all the services she received before the policy took effect — the routine examination, the follow-up examination, and the mammogram — regardless of whether she had breast cancer. As a result, this Court believes it is clear that these treatments and services were not “for” the breast cancer.
*915
The fact that the parties disagree does not prove, of course, that the policy is ambiguous. But the disagreements among the district court and panel members in
Hardester
and the clarifying opinion in
Ross
show that there is room for reasonable argument about how to apply the policy phrase “for which a person was confined or received treatment or service” to this
combination
of conditions. Thus, even if this Court is wrong about the correct application of the phrase to these facts, the phrase would still be ambiguous as applied to these facts.
See McNeilly v. Bankers United Life Assur. Co.,
In theory, it might be possible for the parties to resolve this ambiguity by offering extrinsic evidence about their intentions. After all, the rule of
contra proferentem
is a “tie-breaker” when there is no other sound basis for choosing one contract interpretation over another.
Residential Marketing Group, Inc. v. Granite Investment Group,
In summary, then, the issues in this case must be decided based on the specific preexisting condition clause in this insurance policy, and not on the basis of precedents involving substantially different policies. Under the governing contractual language, the focus must be on the “treatment or service” that Pitcher received in the 90 days before her policy took effect. In view of her history of fibrocystic breast disease, this Court cannot conclude that her routine physical examination in July, her follow-up examination, or her mammogram on September 15, 1992, were “for” the breast cancer. The services were either routine screens or were “for” the fibrocystic breast disease. In the alternative, to the extent there is reasonable room for argument about the application of the clause to these facts, that room for disagreement shows that the clause is ambiguous as applied to these facts. Under the rule of contra proferentem endorsed in Phillips and other Seventh Circuit cases, the ambiguity must be construed in favor of Pitcher and against Principal Mutual. Because those treatments and services were not “for” the *916 breast cancer, Pitcher is entitled to summary judgment on liability.
Damages and Attorneys’ Fees
Pitcher’s motion for summary judgment asks the Court to enter judgment against defendant for $24,260.42, plus prejudgment interest, costs, and attorneys fees. Pitcher says that her claims for benefits total $24,260.42, and she supports this figure with an affidavit from her attorney to authenticate the copies of the bills submitted with her motion. Principal Mutual objects that the attorney does not have personal knowledge of these matters and that the аttorney’s affidavit is therefore not admissible to establish the amounts of these bills. Pitcher responds that there is no genuine dispute over the amount of the bills and that Principal Mutual’s arguments are “an exaltation of form over substance.” Pitcher also suggests that the bills might be admissible as business records or pursuant to the catch-all exception in Fed.R.Evid. 803(24).
Principal Mutual’s arguments on this point are well-taken. Pitcher’s counsel’s affidavit does not establish the personal knowledge needed to authenticate the medical bills and to make them admissible as business records. While Principal Mutual has not come forward with evidence showing a genuine issue of material fact concerning the bills, Principal Mutual did not need to come forward with such evidence unless and until Pitcher properly supported her motion for summary judgment on this point with admissible evidence showing that there was no genuine issue of fact on these matters. Because the attorney’s affidavit is not admissible to establish the amounts of the mеdical bills, Pitcher has failed to support her motion for summary judgment with evidence showing there is no genuine issue of material fact as to the amount of her damages. Therefore, summary judgment is granted to Pitcher only on the issue of liability.
Pitcher has also requested an award of attorneys fees. Under ERISA, the court has discretion to award attorneys fees to a prevailing plaintiff. 29 U.S.C. § 1132(g). The Seventh Circuit has instructed district courts to apply a five-factor test in deciding whether to award fees to plaintiffs who prevail under ERISA.
Janowski v. International Brotherhood of Teamsters Local 710,
(1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of the offending parties to satisfy personally an award of attorneys’ fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the pension plan as a whole; and (5) the relаtive merits of the parties’ positions.
Janowski,
The first factor does not weigh in favor of a fee award here, for there is no indication of bad faith on the part of Principal Mutual. This Court disagrees with its application of the policy language to this factual situation, but reasonable people could disagree. The Court is troubled, however, by the fact that Principal Mutual devoted so much of its argument to efforts to apply the “manifest” standard, which quite plainly has no application at all under the terms of this policy. The second factor weighs in favor of a fee award, for the defendant should be able to afford the fеe award here.
The third factor also weighs in favor of a fee award, for there is a deterrent value to allowing fees where an insurer erroneously denies coverage. This factor is especially important where coverage is flatly denied in the health insurance context. People buy insurance for peace of mind, as well as reimbursement of expenses. The erroneous and complete denial of coverage denies the insured the benefit of peace of mind and forces her to incur substantial additional costs, thus *917 denying her much of the “benefit of the bargain.”
The fourth Jcmowski factor is focused on pension plans, but Pitcher’s suit seems to provide some benefit to other insureds by enforcing the terms of the policy. While her suit could conceivably result in higher premiums in the long run (or perhaps in a modification of the policy), adherence to the policy should benefit other insureds. Thus, the fourth factor also weighs in favor of a fee award. The fifth Janowski factor does not weigh heavily either way. Principal Mutual’s position is not frivolous, but it has invoked the preexisting condition clause in a situation where it does not clearly apply and where, because of the undisputed facts concerning the timing of Pitcher’s employment and the delayed effective date of her insurance, application of the clause would not serve its purpose of preventing fraud. On balance, therefore, after considering each of these factors, this Court believes it should exercise its discretion to allow a fee award here.
However, the materials submitted in support of Pitcher’s motion for summary judgment are not sufficient for the Court to determine that the amount of damages or the amount of an appropriate fee award is beyond genuine dispute. As Pitcher points out, in most cases the amounts of medical bills are ordinarily resolved by stipulation. Similarly, while more specific supporting materials should be provided to support a fee petition, the amount of attorneys fees suggested in Pitcher’s summary judgment materials appears quite reasonable. The Court will therefore set a pretrial conference in the near future, and the parties shall confer before that conference on possible stipulations on damage issues, including both medical expenses, attorneys fees, and prejudgment interest. If necessary, the matter will be set for trial on those issues.
Notes
. The fact that parties to a contract disagree about its meaning does not, of course, show that it is ambiguous.
Federal Deposit Ins. Corp. v. W.R. Grace & Co.,
. Mogil did not discuss or apply the term in the policy excluding coverage if the insured had obtained professional advice or treatment "for that Disability,” which is very similar to the clause at issue here.
. The policy in
Kirk
excluded covеrage for "any Injury or Illness beginning before the effective date of the coverage." The insured had suffered from several symptoms before the policy took effect, but diagnostic tests for a bacterial infection of the heart were negative and the symptoms became much less severe. After the policy took effect, however, the symptoms returned and tests showed a bacterial infection that appeared to have been present all along. The Eighth Circuit majority held that the disease had therefore “begun" before the policy took effect. Judge Bright dissented, arguing the policy should have covered a condition that was not, and could not have been, accurately diagnosed until after the policy took effect.
. Principal Mutual also relies on
Eley v. Boeing Co.,
. The original routine examination appears to have been ''for" neither condition. On this record, it was merely а routine physical examination directed toward Pitcher's overall health, and was not "for” any particular condition.
. In support of her motion for summary judgment, Pitcher has submitted an affidavit from her primary care physician, Dr. Harold Manifold, and a letter from the radiologist, Dr. Jonathan Stafford. Dr. Stafford's letter to Principal Mutual argued in favor of covering Pitcher’s cancer. Dr. Stafford’s letter is inadmissible hearsay. Dr. Manifold’s affidavit says he agrees with Dr. Stafford "that an abnormal result from a mammogram is not a diagnosis of cancer, and that cancer cannot be diagnosed until the tissue is viewed under a microscope after a biopsy. Therefore, it is my opinion that Ms. Pitcher's cancer was not diagnosed, and she did not receive treatment for it, until the date of the biopsy, September 18, 1992.” Citing Cury v. Colonial Life Ins. Co., 737 F.Supp. at 854, Principal Mutual argues that Dr. Manifold’s attempt to interpret the language of the contract ("my opinion ... she did not receive treatment for [the cancer]”) is inadmissible as opinion testimony on the meaning of a contract. The Court has disregarded Dr. Manifold’s opinion on the contract, but has considered the remainder of his affidavit.