867 F2d 613 Marek v. Amba Marketing Systems Inc Cps

867 F.2d 613

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Judith MAREK, a single woman, Plaintiff-Appellant,
AMBA MARKETING SYSTEMS, INC., Affiliates Employee's Benefit
Trust; Amba Marketing Systems, Inc., a/k/a Ambassador
International, Inc.; C.P.S. Direct Marketing, Inc.; Carson
Pirie Scott & Co., a/k/a Carson Pirie Scott Computing
Systems, Inc.; Fred S. James & Company of Arizona;
Galbraith & Green, Inc., Hartford Life & Accident Company
McDonald Co., Inc.; William S. McDonald, husband; Mrs.
William S. McDonald, wife; David G. Pinch, husband;
Deborah Pinch, wife; Lynne A. Swindell; Mr. Swindell;
James G. Tuton, husband; Mrs. James G. Tuton, wife; Bruce
C. Vogel, husband; Mrs. Bruce C. Vogel, wife; Hartford
Accident & Indemnity Company, Defendants-Appellees.

No. 87-15021.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 1988.
Decided Jan. 11, 1989.

Before HUG, TANG and BOOCHEVER, Circuit Judges.

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Mrs. Marek appeals from a summary judgment against her on her complaint for benefits under her ERISA health plan. The trustees of her health plan denied her claim for benefits on the basis that the condition for which she was treated was a pre-existing one excluded under the plan. The material facts were undisputed, and the district court ruled that the trustees' denial of Marek's claim was not arbitrary and capricious.


Marek argues that where it appears that the trustees of an ERISA plan have loyalties inconsistent with their duties to the beneficiaries, we should apply a less deferential standard of review than the traditional "arbitrary and capricious" standard under which actions of the trustees of ERISA plans are normally reviewed. See, e.g., Music v. Western Conference of Teamsters Pension Trust Fund, 712 F.2d 413, 418 (9th Cir.1983). Marek relies on Bruch v. Firestone Tire and Rubber Co., 828 F.2d 134 (3d Cir.1987), cert. granted, 108 S.Ct. 1288 (1988). In that case, whose disposition is now pending in the Supreme Court, the Third Circuit held that because the plan administrator was the company itself, the plan was unfunded, and the benefits would be paid directly by the company, the administrator's decision should be reviewed de novo. Bruch, 828 F.2d at 136.


In this case we need not decide whether and under what circumstances a less deferential standard of review should be applied to a decision of the trustee of an ERISA plan, because even under a de novo standard we conclude that the trustees' decision was not erroneous.


The material facts are not disputed. On November 1, 1983 Marek began participating in a health plan. The plan contained the following exclusion:


No payments are made for a pre-existing condition from the effective date of the Covered Person's coverage under the Plan until the first of the following dates:


(a) the date of expiration of six (6) consecutive months commencing after the effective date during which no treatment or service for the injury, illness, or pregnancy is received; or

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A pre-existing condition was defined as:


any condition for which the individual received medical treatment, diagnosis, consultation, or prescribed drugs or medicines due to an illness or injury during the six (6) months preceding the effective date of his/her coverage under this Plan.


Thus, coverage was excluded during the first six months of coverage for conditions for which Marek had received treatment, diagnosis, a consultation, or prescription drugs between May 1, 1983 and October 31, 1983. Marek was seen by Dr. Davis on August 26, August 31, and September 7, 1983. Dr. Davis treated her for a colitis condition which was diagnosed as either ulcerative colitis or Crohn's disease. Other doctors concurred in this diagnosis. Dr. Davis prescribed Azulfidine to treat this condition.


Marek argues that because she did not know which of the two specific types of colitis she had until after the onset of insurance, her Crohn's disease was not a pre-existing condition. The plan's definition of pre-existing condition, however, does not require knowledge of the specific name of the disease. Marek has not cited, and our research has not revealed, any case which has said that a condition is not in existence, for the purposes of the pre-existing conditions clause in a health plan, until the covered individual knows the specific name of the disease.


The general view is that a condition is in existence for this purpose when it becomes active or manifests itself. See e.g., Metropolitan Life Ins. Co. v. Reynolds, 48 Ariz. 205, 60 P.2d 1070, 1073 (1936). "A majority of the cases recognize that a sickness should be deemed to have its inception at the time it first manifested itself or became active, or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness." Preferred Risk Life Ins. Co. v. Sande, 421 So.2d 566, 568 n. 1 (Fla.Dist.Ct.App.1982) (citing Annot., 94 A.L.R.3d 990, 998 (1979)); see Malone v. Continental Life and Accident Co., 89 Idaho 77, 403 P.2d 225, 228 (1965); Craig v. Central Nat'l Life Ins. Co., 16 Ill.App.2d 344, 148 N.E.2d 31, 36 (Ill.App.Ct.1958); Bishop v. Capitol Life Ins. Co., 218 Kan. 590, 545 P.2d 1125, 1127 (1976); Jackson v. Pacific Mut. Life Ins. Co., 308 S.W.2d 291, 293 (Mo.App.1957); Rosenberg v. North Dakota Hosp. Serv. Ass'n, 136 N.W.2d 128, 131 (N.D.1965); Hannum v. General Life and Accident Ins. Co., 745 S.W.2d 500, 501 (Tex.Ct.App.1988).


A condition can manifest itself or become active before a specific diagnosis is made. Indeed, the often quoted standard demonstrates that a diagnosis need not be made, since it only requires "a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness." See Sande, 421 So.2d at 568 n. 1 (emphasis added).


None of the cases cited by Marek support her argument that the specific name of a condition must be known before it is considered a pre-existing condition. In Metropolitan Life, 48 Ariz. 205, 60 P.2d 1070, the court held that the disabling condition, insanity, had not manifested itself until after the policy commenced, notwithstanding that the medical cause of the insanity may have existed earlier. In Craig, 16 Ill.App.2d 344, 148 N.E. at 31, the court held that there was an insufficient record to demonstrate that the patient's fibroid tumor of the uterus had become manifest prior to her consultation with a doctor subsequent to the exclusion period. In Rosenberg, 136 N.W.2d 128, the court held that because no physician had attributed the patient's back and stomach pains to "gallbladder trouble", and such pains could be caused by many different problems, there was not sufficient evidence that the disease had become manifest. Id. at 132, 134. In Jackson, 308 S.W.2d 291, the court held that where the only evidence was that the patient had experienced lower back pains, the insurance company had not established that an aneurysm was manifest prior to the issuance of the health policy. Id. at 294. In Hovis v. Industrial Hosp. Assoc., 71 Wash.2d 169, 426 P.2d 976 (1967), the court held that where the patient had cramps in his legs and pain in his hips, but that only a vascular specialist could have diagnosed him as having a vascular condition, the fact that he had the condition could not be known.


None of the cases Marek relies on involved a person who was being treated by a physician for a condition affecting a specific body part, the cause of which had been narrowed down to two possibilities. Indeed, the language of Rosenberg suggests that if the patient had been diagnosed as having "gallbladder trouble" the gallstones would have been considered a pre-existing condition even though the particular type of trouble was not specified. In Hovis, if the patient had been diagnosed as having a "vascular condition" this would also apparently have been sufficient to establish that it was a pre-existing condition, even though the particular type of vascular condition was not specified.


Many cases could be cited to support the proposition that the name of the particular condition need not be known, however it is sufficient to limit the discussion to a case remarkably similar to the case before us. In Estate of Borer v. Louisiana Health Serv. & Indem. Co., 431 So.2d 49 (La.Ct.App.1983), the insured's physician had treated him for "some sort of colitis" for three years before the insured took out the health insurance policy. The physician had characterized it as "non-specific colitis, meaning he could not pinpoint the specific form present (i.e., ulcerative colitis, parasitic colitis, etc.)...." Id. at 51. The insured's estate argued that because the specific ailment, ulcerative colitis, had not been diagnosed, it was not a pre-existing condition. Id. The court of appeals rejected the distinction between non-specific colitis and ulcerative colitis.


Similarly, we reject the distinction Marek attempts to draw between colitis diagnosed as either one of two types, and the one which it ultimately turned out to be. Because the condition for which Marek seeks benefits was pre-existing according to the terms of the health plan, the district court did not err in granting judgment in favor of the defendants.




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3