Webb v. Blue Cross Blue Shield of Louisiana
Webb v. Blue Cross Blue Shield of Louisiana
Opinion of the Court
Does an insurer lull its insured into a sense of complacency sufficient to prevent the insured from filing suit when it advises her three months before prescription runs that it is reconsidering its previous demal of her claim? Louisiana Health Service and Indemmty Company d/b/a Blue Cross and Blue Shield of Louisiana (defendant) is appealing the trial court’s affirmative answer to this question.
Defendant issued a major medical insurance policy to Loretta Webb (plaintiff), effective July 1,1992. She was hospitalized October 31 through November 2,1992, with chest pain. Thomas Hall, plaintiff’s attending physician, indicated in plaintiffs medical records that plaintiff had a two-year Mstory of chest pain. Timely submitted claims by plaintiffs health-care providers were consequently de-med under the preexisting-condition exclusion in defendant’s policy.
In January 1993, plaintiff wrote defendant, asking it to reconsider her claim and enclosing a letter from Hall. Plaintiff demed she gave Hall a history of preexisting chest pain. In June 1993, defendant sent a letter to Hall explaining the basis for demal of the claim. The letter concluded, “I do not believe that our office has made an error. However, if there is medical information that we do not have that would be offered to change our position, we would be happy to review same.” On November 10,1993, Hall wrote defendant stating his record “must be erroneous”; he asked defendant to take the correction into account and reconsider its demal of the claim. On November 15, 1993, defendant wrote Hall acknowledging receipt of Ms letter and statmg, “As soon as our medical staff has completed their review, you will be notified of their decision.” A copy of tMs letter was sent to plaintiff.
The record does not mdicate when, if ever, defendant notified plaintiff it had deMed her claim a second time. Dawn Clayton, defendant’s manager, testified the claim was re-reviewed and re-deMed in November 1993. Plamtiff testified she concluded m June 1993 that defendant defmitely was not gomg to honor her claim. That was when she retained counsel. She further testified, however, that it was her “impression that if the medical records were cleared up by Dr. Hall, that Blue Cross would pay the claim.” She did not explam how she got that impression. She stated, “If Dr. Hall corrected that entry, that seemed to be what the main problem was, which was an erroneous entry to begin with. Yes, if he cleared [it] up, I didn’t see what the ^problem was with the policy ... and it being paid.” Plaintiff did not state when she became aware defendant had de-med the claim a second time.
Under defendant’s policy, plaintiff had fifteen months after services were rendered to file smt. That time period expired February 2, 1994. Plaintiff filed smt July 29, 1994, almost twenty-one months after her hospitalization. Defendant then filed an exception of
After a bench trial, the court held plaintiffs condition was not preexisting and was covered by defendant’s policy. The court further held the case was not prescribed, stating: “It was not until after Dr. Hall’s November 1993 response that [plaintiff] could consider filing suit since she though[t] her claim was under review by [defendant]. Therefore, [plaintiff] was lulled into a sense of complacency; [defendant’s] argument of prescription is barred by the doctrine of contra non valentem. [Plaintiffs] suit was timely filed.”
Under the doctrine of contra non valentem agere nulla currit praescriptio, prescription does not run against a person unable to bring an action. A party excusably ignorant of a claim is not barred by prescription because one is not bound to do the impossible.
The third type of contra non is most commonly invoked today. It is applicable when the defendant conceals information or misleads and lulls the plaintiff into inaction.
The supreme court explained in Lima v. Schmidt that “mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims” are not sufficient to suspend prescription.
None of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
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(3) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim.
Even if an insurer admits liability under a policy, unless it couples that admission with other acts and conduct that reasonably induce an insured to believe his claim will be settled without suit, the insurer is not
The crucial determination is whether the overall actions of the insurer’s representatives during the prescriptive period led plaintiff to believe reasonably that Rthe insurer would not require compliance with the policy's prescriptive provision.
But the insured’s ignorance of his rights alone is not enough to trigger contra non. The insured must also prove the insurer committed some act, such as concealment, fraud, misrepresentation, or other ill practice, that tended to impede or prevent the insured from asserting his cause of action.
The facts herein are very similar to those in Touro Infirmary v. Henderson,
In this case, defendant did nothing to prevent or hinder plaintiff from filing suit. Plaintiff knew in January 1993 that defendant had denied her claim. She began a letter-writing campaign to defendant and the Louisiana Commissioner of Insurance to lehave that decision reversed. She testified she knew in July 1993 defendant was not going to pay, which is why she retained counsel. Defendant promised her nothing more than a review of its previous denial, all the while asserting it did not believe it had erred. Although defendant agreed in November 1993, three months before the prescriptive period ended, to review its denial once more, it in no way indicated it was waiving its right to claim the fifteen-month prescription provision in the policy.
For the foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered in favor of Louisiana Health Service and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana and against plaintiff, Loretta Webb, dismissing plaintiff’s suit. All costs are to be borne by plaintiff.
REVERSED AND RENDERED.
. Plaquemines Parish Comm’n Council v. Delta Dev. Co., 502 So.2d 1034, 1054 (La. 1987).
. Brunett v. Department of Wildlife & Fisheries, 96-0535, p. 6 (La.App. 1st Cir. 12/20/96), 685 So.2d 618, 621, writ denied, 97-0186 (La.3/14/97), 689 So.2d 1385.
. Wilson v. City of Baton Rouge, 96-0015, p. 6 (La.App. 1st Cir.l 1/8/96), 683 So.2d 382, 385, writ denied, 96-2936 (La. 1/31/97), 687 So.2d 408; National Union Fire Ins. Co. v. Spillars, 552 So.2d 627, 630 (La.App. 2d Cir. 1989), writs denied, 556 So.2d 61 (La. 1990); Brown v. State, 354 So.2d 633, 635 (La.App. 1st Cir. 1977).
. Matherne v. State Farm Mut. Auto. Ins. Co., 599 So.2d 816, 819 (La.App. 1st Cir.), writ denied, 600 So.2d 648 (La. 1992), citing Dagenhart v. Robertson Truck Lines, 230 So.2d 916 (La.App. 1st Cir. 1970).
. Id. at 819.
. Lima v. Schmidt, 595 So.2d 624, 634 (La. 1992). See also Touro Infirmary v. Henderson, 92-2720, p. 7 (La.App. 4th Cir. 12/28/95), 666 So.2d f686, 90.
. Brocato v. Sun Underwriters Ins. Co., 219 La. 495, 53 So.2d 246 (1951); Stephens v. Audubon Ins. Co., 27,658, p. 3 (La.App. 2d Cir. 12/6/95), 665 So.2d 683, 685-686, writ denied, 96-0066 (La.2/28/96), 668 So.2d 363.
. Stephens v. Audubon, 27,658, p. 3, 665 So.2d at 686; Blum v. Cherokee Ins. Co., 336 So.2d 894, 898 (La.App. 4th Cir. 1976).
. Touro v. Henderson, 92 — 2720, p. 7, 666 So.2d at 690.
. Id., 97-2720, p. 6, 666 So.2d at 689.
. Zidan v. USAA Property & Cas. Ins. Co., 622 So.2d 265, 268 (La.App. 1st Cir.), writ denied, 629 So.2d 1138 (La. 1993).
. In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La. 1991); Griffin v. Kinberger, 507 So.2d 821, 823 (La. 1987); National Union v. Spillars, 552 So.2d at 630.
. Rajnowski v. St. Patrick's Hosp., 551 So.2d 806, 808 (La.App. 3d Cir. 1989), aff'd., 564 So.2d 671 (La. 1990).
. Id. at 810, n. 3.
. 92-2720 (La.App. 4th Cir.12/28/95), 666 So.2d 686.
. State v. Robert E. McKee, Inc., 584 So.2d 1205, 1208 (La.App. 2d Cir. 1991).
Reference
- Full Case Name
- Loretta WEBB v. BLUE CROSS BLUE SHIELD OF LOUISIANA
- Cited By
- 1 case
- Status
- Published