101 A.D.2d 988 | N.Y. App. Div. | 1984
Lead Opinion
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered April 18,1983 in Franklin County, upon a decision of the court at Trial Term (Viscardi, J.), without a jury. 11 At issue on this appeal is whether the trial court properly found that defendant insurer should be equitably estopped from denying reimbursement to plaintiff, its insured under a group medical insurance policy, for certain payments made by plaintiff for health care services rendered to his wife. We conclude that the trial court did err in so finding and reverse the judgment entered in favor of plaintiff. 1 Plaintiff submitted to defendant numerous medical bills incurred on behalf
Dissenting Opinion
In our view, the record supports Trial Term’s finding of an equitable estoppel. Initially, it was not necessary for plaintiff to amend his complaint to add a cause of action based on equitable estoppel. Equitable estoppel is not a cause of action as such, but is simply a theory by which a portion of a cause of action may be proved. There was no reason for plaintiff to have pleaded this theory in support of his breach of contract cause of action since defendant never pleaded the limitation provision of the policy as an affirmative defense. Not having been put on notice of the defense, plaintiff cannot be held responsible for failing to plead the theory to avoid such defense. Moreover, defendant has never raised the failure to plead equitable estoppel, either at trial or on appeal, and, therefore, has waived this issue. H On the merits, the evidence supports the finding of equitable estoppel. Specifically, while defendant may not have had actual knowledge of the type of services plaintiff was retaining, constructive knowledge would be sufficient (see Matter of New York State Guernsey Breeders’ Co-op. v Noyes, 260 App Div 240,248, mod on other grounds 284 NY 197; Gratton v Dido Realty Co., 89 Misc 2d 401, affd 63 AD2d 959; 21 NY Jur, Estoppel, Ratification, and Waiver, § 21, p 27). The evidence demonstrates that, in January of 1978, plaintiff brought his wife, who had been paralyzed in an automobile accident, home from the hospital and cared for her until her death in August of 1980. During that