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Sachs v. Commercial Insurance Co.

Decided: May 12, 1972.

LILLIE SACHS, EXECUTOR OF THE ESTATE OF IRVING SACHS, PLAINTIFF,
v.
COMMERCIAL INSURANCE CO. OF NEWARK, NEW JERSEY, A NEW JERSEY CORPORATION, DEFENDANT



Larner, A.j.s.c.

Larner

Plaintiff brings this action as executrix of her late husband's estate, seeking reimbursement for certain medical expenses incurred during his last illness. The action is founded upon the contractual provision of a major medical expense policy issued by defendant to the decedent in connection with a group plan for members of the New Jersey Bar Association.

The first policy issued to Irving Sachs was dated November 1, 1964 and designated as GMC 4007. In 1966 the assured filed a claim under that policy for hospital and medical expenses incurred in connection with examinations, consultations and treatment commencing February 1966, necessitated by complaints of blackouts and general weakness of the upper extremities. Included in this treatment was a confinement to Pollak Hospital in Jersey City from February 14 to 24, 1966. The hospital report reflects a history of lightheadedness and syncope, with the first episode occurring in November 1964 and another similar episode in

November 1965. Subsequently, the episodes were more frequent without any particular timing or pattern of onset. The consultation report of Dr. Winokur, a neurosurgeon, diagnosed the condition in February 1966 as amyotrophic lateral sclerosis and arteriosclerotic brain disease with intermittent attacks of thrombosis of minor intercranial vessels. Another neurologist, Dr. Valergakis, stated his opinion that the patient's attacks were due to "some disturbance in the heart," and he suggested an EKG. Such an EKG, however, demonstrated no abnormality. In addition to the foregoing diagnoses, the patient was a long standing diabetic suffering from diabetes mellitis which was under control at the time.

I find from an examination of the record of Pollak Hospital and the testimony of Dr. Medinets that prior to February 1966 the assured was suffering from cerebral arteriosclerosis and had active symptomology attributable to that disease, and that his diabetic condition was not causally related to his symptoms or his treatment at that time. I further find that the arteriosclerosis is progressive in nature and that the patient continued to deteriorate with more severe symptoms involving his brain and the functions of the brain as time went on.

It was because of this single syndrome that he required not only the hospitalization and treatment in 1966, but also the hospitalization in Fair Oaks from January 25, 1968 to March 28, 1968 and the subsequent hospitalization in Jewish Hospital from March 28, 1968 to the time of his death in March 1970.

The records are replete with evidence of a gradual deterioration of the patient's intellectual and mental powers, at least since 1964, with loss of memory and other symptoms characteristic of cerebral arteriosclerosis. I therefore reject as a fact plaintiff's contention that the cerebral arteriosclerosis was a new disease commencing in 1968.

The significance of this finding lies in the determination of the period of coverage for which defendant would be liable

under the aforesaid policy which limits payments to expenses incurred within two years from the date such expense first began. Defendant did pay for all covered expenses from February 1966 to February 1968 and contends that its obligation is at an end. In the absence of the problems raised by the issuance of a second policy in 1967, the position of defendant would be valid and sustained.

However, the issue is complicated by virtue of certain modifications of the insurance contract undertaken by the company in 1967. Sometime prior to November 1, 1967 the company, through its agent John A. Couch, Jr. & Co., notified all its assureds who were part of the Bar Association plan that because of poor experience it was modifying the terms of the policies with changes in coverages and benefits. On one hand this involved an increase in premiums and a larger deductible interest. On the plus side for assureds, the maximum benefit was increased from $10,000 to $12,500 and the benefit period extended from two to three years.

A letter from the agent was distributed to the assureds which explained the new benefits effective November 1, 1967 and referred to the new provisions as "modifications" and "liberalizations," with several indications that the existing plan was being modified. This ...


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