RESERVE LIFE INS. CO. v. TADLOCK

RESERVE LIFE INS. CO. v. TADLOCK
1977 OK CIV APP 56
591 P.2d 1178
Case Number: 49746, 49781
Decided: 11/08/1977
APPROVED FOR PUBLICATION BY THE SUPREME COURT

RESERVE LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT,
v.
MYRTLE TADLOCK, ADMINISTRATRIX OF THE ESTATE OF GENEVIA BEAUCHAMP, DECEASED, APPELLEE.

Appeal from the District Court, Oklahoma County

William S. Myers, Jr., J.Abernathy & Ingram by David Ingram, Shawnee, for appellant.
John B. Ogden, Oklahoma City, for appellee.

REYNOLDS, Presiding Judge

¶1 The Reserve Life Insurance Company brought this action to rescind a policy of insurance issued to Genevia Beauchamp, deceased, providing benefits for loss

"resulting solely from sickness or disease . . . definitely diagnosed by a recognized and certified pathologist . . . recognized as cancer . . . the first symptoms of which appear more than 90 days after the effective date of the policy . . . ."

As grounds for rescission of this policy, the plaintiff alleges three false representations were made by the deceased on her application for insurance. They are: 1. That the deceased was in good health; 2. that she had not been told she had cancer; and 3. that she had not received medical or surgical treatment within five years except "shots for cold." The plaintiff alleged it relied on the truth of those statements by issuing Policy No. 56.78.06 providing a maximum of $10,000.00 insurance. The effective date of the policy was June 4, 1973.

¶2 The defendant, Myrtle Tadlock, Administratrix of the estate of Genevia Beauchamp, answered by denying the deceased made any false statement on the application, rejected plaintiff's tender of $66.00 representing premiums paid on the policy, and sought judgment for expenses incurred as a result of the cancer experienced prior to the insured's death.

¶3 The plaintiff now raises as error the overruling of its motion for summary judgment. The plaintiff stated in the motion there was no controversy over the fact that the first symptoms of the cancer appeared during the 90 day exclusionary period; thus this cancer was not a covered risk under the policy.

¶4 The trial court is alleged to have erred in overruling the motion because the depositions conclusively demonstrate the first symptoms occurred during the 90 day period immediately after the effective date of the policy. The point of error is not supported by the facts set out in the trial brief of the plaintiff. A quotation from the deposition of Doctor Shook reads as follows:

Q How long prior to her visit with you had she had this carcinoma?

A . . . I would say that three to four months would be about maximum that she could have had this illness before it came to our attention.

Doctor Shook first examined the deceased on December 13, 1973, or six months and nine days from the effective date of the policy. If Doctor Shook's estimate of the maximum period of time the illness could have existed was found to be three months, the disease is a covered disease because she did not have the disease until three months and nine days after the effective date of the policy. The plaintiff's motion for summary judgment was correctly refused, as there is a substantial controversy as to this material fact necessary to plaintiff's cause of action.

¶5 In his order overruling the motion for summary judgment the trial court noted that Banker's Service Life Insurance Co. v. Gilliam, 363 P.2d 288 (Okl. 1961) states that where a policy of insurance covers sickness originating after the effective date of the policy, the sickness is deemed to originate when it becomes manifest by a symptom from which one learned in medicine could, with reasonable accuracy, diagnose the specific disease which caused the loss. The trial court then states that the evidentiary materials before it demonstrated that although the deceased sought medical advice during the exclusionary period, the symptoms demonstrated then were uniformly interpreted as symptoms of constipation and not cancer. Under the authority of Bankers Service Life, supra, the trial court concluded symptoms of cancer cannot be deemed to originate prior to the time they become diagnosable as cancer and are distinguishable from symptoms of simple constipation. The trial court states ". . . Before the pain or complaint should be considered a symptom so as to release the insuror from the obligation, the symptom should be such that one learned in medicine could, with reasonable accuracy, diagnose the specific cause of such pain." We agree with the trial court's interpretation and application of Banker's Service Life, supra. Although the deceased sought medical advice during the 90 day exclusionary period, it is unquestioned that the symptoms were not diagnosed as cancer until after that period.

¶6 The policy provides as a condition precedent to recovery that the carcinoma must be diagnosed by a certified pathologist. The plaintiff bases error on the contention that the defendant failed to offer proof that the diagnosis of cancer was made by a certified pathologist, thus the trial court erred in overruling plaintiff's demurrer to defendant's evidence. The parties to this action stipulated at the outset of this trial, that surgery on November 13, 1973 did establish that the decedent had cancer. This stipulation arises from information obtained through the deposition of Ellen Ferguson (assistant medical records librarian) taken at the request of the plaintiff, and identifies the medical records of the deceased. Among the records is a tissue report signed by R.C. MacKay, M.D. Diplomate, American Board of Pathology, diagnosing a tissue from the colon of the deceased as "Moderately Undifferentiated Adenocarcinoma of Colon."

¶7 The plaintiff contends that there is no evidence in the record to justify the conclusion that the second hospitalization of the decedent was caused by cancer. The evidence is alleged to demonstrate only that the decedent was treated for a urinary tract infection. A review of the transcript of trial requires us to conclude that the cause of the urinary tract infection was cancer. The cancerous growth had caused a communication between the decedent's kidneys and her bowels. Medical testimony specifically established the cause of this communication between normally separate functions was a cancerous growth of tissue and that this linkage caused the infection. The evidence does establish cancer to be the cause of the second hospitalization.

¶8 The appellee contends the trial court erred in failing to grant judgment for the full amount of the policy, pointing to the fact that the marked exhibits reflect expenses over the face value of the policy. The trial court noted in remarks from the bench in announcing his ruling the recovery granted the administratrix allows recovery for all medical expenses admitted in evidence, and denies recovery for expenses not admitted in evidence. The trial court's judgment denying plaintiff rescission of the insurance contract and entering judgment for the defendant in the amount of $6,384.65 is affirmed.

¶9 AFFIRMED.

¶10 BOX and ROMANG, JJ., concur.