No. 13491 | La. Ct. App. | Feb 20, 1978
From judgment for the insured for benefits under a hospitalization policy ($954) and for attorney’s fees ($500), the insurer appeals. We affirm.
The insurer contends that the medical condition for which benefits were sought pre-existed the policy and that Art. IX of the policy should control since it excludes from coverage such pre-existing conditions during the first year of the policy.
Emphasizing that no application was attached to the policy as required by R.S. 22:618 (see also R.S. 22:219, 616), the lower court held that no evidence of a pre-exist-ing condition could be admitted or considered, citing Henderson v. Minn. Mut. Life Ins. Co., 347 So. 2d 53" court="La. Ct. App." date_filed="1977-05-23" href="https://app.midpage.ai/document/henderson-v-minn-mut-life-ins-co-1703697?utm_source=webapp" opinion_id="1703697">347 So.2d 53 (La.App.2d Cir. 1977) and Smith v. North American Co. for Life, Acc. & Health Ins., 306 So. 2d 751" court="La." date_filed="1975-01-20" href="https://app.midpage.ai/document/smith-v-north-american-co-for-life-acc--h-ins-1802659?utm_source=webapp" opinion_id="1802659">306 So.2d 751 (La.1975).
In Smith, the Supreme Court said:
“. . [T]he trial court . . .erroneously admitted the application for insurance into evidence. Thus all evidence concerning pre-existing conditions not disclosed in the application was improperly considered. Failure to disclose that evidence is not available to the insurer as a defense because a correct copy of the application . . . was not attached to or otherwise made a part of the policy.” S06 So.2d 754.
The Supreme Court then concluded:
“In light of our conclusions, it is unnecessary to consider whether [the insured] had a pre-existing condition prior to the effective date of the insurance . . . ” ibid, p. 755.
In Henderson, the insurer likewise failed to attach the application to the policy. There, we said:
“We find, under the ruling of the Supreme Court in Smith, supra, that the trial court erred in admitting into evidence the application or any evidence of misrepresentation. The all-inclusive nature of the Smith decision also precludes consideration of whether or not plaintiff had a pre-existing condition, prior to the effective date of the insurance, which was responsible for his disability.” 347 So. 2d 55" court="La. Ct. App." date_filed="1977-05-23" href="https://app.midpage.ai/document/state-dept-of-highways-v-traina-1703809?utm_source=webapp" opinion_id="1703809">347 So.2d 55.
While exclusionary provisions of this type are authorized (R.S. 22:213) and are not contrary to the law or public policy (Muse v. Metropolitan Life Insurance Co., 193 La. 605" court="La." date_filed="1939-10-30" href="https://app.midpage.ai/document/muse-v-metropolitan-life-ins-co-3478426?utm_source=webapp" opinion_id="3478426">193 La. 605, 192 So. 72 (1939)), the issue for our determination is whether our interpretation of Smith in Henderson is correct.
We recognize that there may be a distinction between the defense based on the insured’s false statement in the application (R.S. 22:219, 616, 618, 619) and the defense based on a policy exclusion of the type at issue here as authorized by R.S. 22:213(A)(13)(b).
Under Smith, we hold evidence of a preexisting condition is not admissible where a correct copy of the application is not attached to the policy as required by R.S. 22:219, 618, even though the insurer defends solely and exclusively on the basis of a policy exclusion as authorized by R.S. 22:213(A)(13)(b). R.S. 22:211(A); Henderson, supra. See also Spain v. Travelers Ins. Co., 332 So. 2d 827" court="La." date_filed="1976-05-17" href="https://app.midpage.ai/document/spain-v-travelers-insurance-company-1716223?utm_source=webapp" opinion_id="1716223">332 So.2d 827 (La.1976).
At appellant’s- cost, judgment is
AFFIRMED.
. The pertinent part of Art. IX reads:
“A. No Health Care Allowance will be provided for:
1. services rendered during the first year of coverage for, or as a result of, any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the Original Effective Date; . . . ”
The evidence here establishes the condition resulting in the hospitalization of the insured’s wife pre-existed the policy. The policy was effective May 15, 1975. On that day, the wife saw a medical doctor. The doctor hospitalized her for further treatment on May 19. The doctor testified that the wife’s condition arose a “few weeks” prior to May 19 and resulted in the hospitalization because of gradually increasing pain.
. This section reads:
“(b) No claim for loss incurred commencing after three years from the date of issue of this policy shall be . denied on the ground that a . . . physical condition . . . had existed prior to the effective date of coverage of this policy.”