Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
Plaintiff had open-heart surgery and attendant hospitalization at the defendant Deborah Hospital in Browns Mills from October 9, 1967 to November 11, 1967. Through his employer he was covered for certain medical benefits on a group policy issued by defendant The Travelers Insurance Company. He was also a subscriber for "Blue-Cross" hospitalization benefits with the defendant Hospital Service Plan of New Jersey.
Plaintiff sued all three defendants on theories which, as to Travelers and Deborah, will be explained below. They, as well as Hospital Service, were granted summary judgment in the Law Division, but plaintiff appeals only as to the first two defendants mentioned.
Plaintiff's action against Travelers is based upon the group policy aforementioned. The company at one time paid Deborah $2,523.60 for hospital services rendered plaintiff, but later demanded and received the money back from Deborah on the representation that its policy did not cover plaintiff's treatment at that institution. The position of Travelers was that its policy excluded coverage for these services by reason of a provision therein reading:
4. In no event will the employee's benefit be payable * * * (d) for any confinements, treatments, services or supplies * * * for which the employee incurred no expense."
It is Travelers' contention that plaintiff "incurred no expense" in connection with his stay and treatment at the hospital as he paid nothing therefor and the hospital is
asserting no claim against him in connection therewith. The trial court found this position to be well taken.
Plaintiff's claim against Deborah is based on the assertion that it wrongfully returned to Travelers the $2,523.60 which that company had paid the hospital as aforesaid and also that the hospital has been "overpaid."
The factual picture emerging from the pleadings, pretrial contentions, affidavits on the motions for judgment and data supplied this court on and after oral argument at our request leaves some factual uncertainty. We have concluded that this is at least in part, legally material to the question of the liability of Travelers and precludes sustaining summary judgment in favor of that defendant.
Before plaintiff was admitted to the hospital, Deborah's administrator wrote to the medical director of the New Jersey Rehabilitation Commission on September 9, 1967 enclosing medical data on plaintiff's case, stressing the importance of treating him "as soon as possible," and requesting notification whether "this application is acceptable under the Rehabilitation Program." As the Commission ultimately did make substantial payments to Deborah in relation to this case, it is inferable that the letter related to a request that the Commission agree to defray either in whole or in part the expense of plaintiff's anticipated treatment as a "vocational rehabilitation service" pursuant to the Commission's statutory authority under N.J.S.A. 34:16-27. We are informed that the Commission verbally assented to the ...