Loading...
HomeMy WebLinkAbout2004-0303 Civil SONYA S. FETTERHOFF and STEVEN M. FETTERHOFF, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY, DEFENDANT 04-0303 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., June 1, 2006:-- On July 26, 2002, plaintiffs, Sonya S. Fetterhoff and Steven M. Fetterhoff applied for group credit insurance from defendant, Universal Underwriters Life Insurance Company. Defendant issued the insurance which covered automobile loan payments during periods of disability. After Sonya S. Fetterhoff was advised by a physician on or about March 20, 2003, that she was disabled from her employment due to fibromyalgia, plaintiffs filed a claim under the policy. Defendant denied coverage. Plaintiffs instituted this suit alleging breach of the insurance contract and bad faith by defendant. Defendant filed a motion for summary judgment that was briefed and argued on May 17, 2006. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A 04-0303 CIVIL TERM court: . . . must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). Defendant maintains that the insurance policy it issued to plaintiff is void due to material misrepresentations by plaintiff in the application. The application contained the following question: Have you within the last 5 years before the effective date received or been advised to receive medical advice for treatment for. . . Depression. . .. (Emphasis added.) Plaintiffs answered, "no," and signed below the following: I hereby apply for the Credit Insurance Coverage described above. By signing below, I represent the above statements are true, correct and complete to the best of my knowledge and belief and a copy of this application was given to me on this date. I further understand that I am not eligible for insurance if I have answered Yes to any of the questions listed above. (Emphasis added.) Kathleen Pollock, a certified registered nurse practitioner, testified in a deposition that she worked at the Pinnacle Health system family practice office in Camp Hill from December 1, 1999, until June 14, 2004. She saw plaintiff on five occasions between January 14, 2002 and April 22, 2002, in each instance acting as her primary -2- 04-0303 CIVIL TERM care provider. Plaintiff was not seen by a doctor during those visits. During the entire period of the five visits, plaintiff was under the separate care of a neurologist, Dr. Janton, who was not a physician with Pinnacle. Dr. Janton was treating plaintiff since March 7, 2001, for fibromyalgia. Plaintiff was taking the prescription drugs, Elavil for her fibromyalgia, and Vioxx for pain. Pollock's office note of January 14, 2002, shows an assessment for fibromyalgia and depression. She testified that she told plaintiff on January 14, 2002, that she suffered from fibromyalgia and depression. Her chart notes on January 21, March 11, April 15 and April 22, 2002, all set forth an assessment of fibromyalgia and depression. Pollock testified that since she talked to plaintiff on January 14 about her depression, she does not recall if she mentioned it to her during the four subsequent office appointments. Katherine Gallagher, M.D., is a family physician in the Pinnacle Health system family practice office in Camp Hill. She first saw Sonya Fetterhoff on November 11, 2002, which was a little more than three months after plaintiffs signed the application for insurance. Dr. Gallagher saw her again on December 2, December 12 and December 18, 2002, March 27 and September 26, 2003, and April 19, 2004. On all of those occasions, Dr. Gallagher provided treatment to plaintiff for medical problems unrelated to her fibromyalgia which was being treated by Dr. Janton. She testified that one of the hallmarks of fibromyalgia is fatigue and depression and plaintiff "definitely had both of those in just about every note." On July 25, 2003, upon a request for information from Universal Underwriters, she reported that plaintiff's depression was -3- 04-0303 CIVIL TERM not situational in -4- 04-0303 CIVIL TERM that no external influences caused it - it was not extrinsic.1 On August 26, 2003, she reported again to Universal Underwriters that she was treating plaintiff for fibromyalgia, not depression. She testified that she made this report because plaintiff's depression was secondary and an outgrowth of the underlying medical condition of fibromyalgia. Dr. Gallagher testified that she examined Dr. Janton's notes reflecting the same symptoms, "not wanting to go out, tired all the time, not a happy mood, but sort of, melancholy.,,2 She believed that if plaintiff did not have the underlying fibromyalgia process going on, she did not think she would be depressed - the depression was a direct outgrowth of that underlying medical condition. Dr. Gallagher did not believe that plaintiff needed psychiatric counseling - rather, her fibromyalgia needed to get better. Sonya Fetterhoff testified in her deposition: Q. From 1998 through 2002, you have treated with Dr. Gallagher's office for whatever health issues have arisen; is that correct? A. Yes. Q. I know when we were with Dr. Gallagher certain things were mentioned. You have treated with her office for fibromyalgia; is that correct? 1 Dr. Gallagher testified that "[e]xtrinsic depression is usually something situational like the death of a family member, divorce, financial loss. And intrinsic depression is usually either solely idiopathic, in other words, people don't even know why they're sad but they're sad or it is from an internal disease process such as fibromyalgia, sleep apnea, heart bypass surgery." 2 In another response to a request for information from defendant, Dr. Gallagher, on October 3, 2003, reported that it was Dr. Janton who was treating plaintiff for fibromyalgia, and "If you need specific information about her fibromyalgia condition, this should be the doctor that you would need to contact." There is no deposition testimony or any other evidence in the record regarding Dr. Janton's treatment of plaintiff. -5- 04-0303 CIVIL TERM A. Yes. Q. She has provided or her office has provided treatment for you for depression; is that correct? A. No. Q. You were present for Dr. Gallagher's deposition; is that correct? A. Yes. Q. You sat in on it. There were five references in the medical records between January of 2002 and May of 2002 where you were in for visits where part of the diagnosis at those visits was depression. Were you aware that Dr. Gallagher or her staff was noting, among the things they were treating you for, depression as one of the subject area? A. Yes. Q. Were you taking any medication for depression prescribed by Dr. Gallagher or anyone from her office or any other physician between January of 2002 and July of 2002? A. No. Q. In addition to the Pinnacle Family Health Center, the time frame from January of 2002 through July of 2002, any other medical facilities or medical doctors that you were treating with? A. Yes. Q. Who else were you seeing in that time frame? A. Dr. Janton. Q. J-A-N-T-O-N? A. Yes. Q. For what reason were you seeing Dr. Janton? A. For my fibromyalgia. Q. Any other doctors or facilities that you were treating with in that January to July 2002 time frame? A. No. Q For what time frame had you been seeing Dr. Janton? If we are talking 2002, how long prior to that had you been seeing him? A. Since 2000. Q. Was your treatment with Dr. Janton solely for fibromyalgia? A. Yes. Q. What caused you to begin treatment with Dr. Janton in 2000? A. I was referred to him by a colleague at the Family Medicine Center. -6- 04-0303 CIVIL TERM Q. The time frame of January 2002 through July of 2002, were you on any type of medications during that time frame? A. Yes. Q. Do you recall what those medications were? A. Not at this time, I don't. Q. Do you remember any of them at all? A. No. Q. Do you remember what you were talking the medications for? A. Yes. Q. Tell me what you believe you were taking the mediations for during that January - A. My fibromyalgia. Q. Any other reason? A. No. Q. In July of 2002, did you and your husband make a decision to purchase a vehicle? A. Yes. Q. What dealership were you dealing with on the vehicle purchase? A. Cumberland Valley Motors. The deposition, continuing at page 29, line 11 thru page 20, line 15, Sonya discusses her responses to the questionnaire. A. And then we had answered them. When I read it, I was not being treated for depression. I have not been advised to be seen for depression. I was treated for fibromyalgia. Q. Even though your medical records indicate five times in the time frame prior to you filling out this form the diagnosis of depression? A. I don't consider that a diagnosis for depression because I was not being treated for depression. I was not sent to see a psychiatrist or psychologist for depression. Q. Were you told by Dr. Gallagher's office before July of 2002 that one of the diagnoses they were making of you, besides fibromyalgia, was depression? A. No. They have never told me that I was depressed. I am considering my age and with the health problems that I had with the fibromyalgia, there is days that I would feel depressed; and with the symptoms of fibromyalgia, yes, depression is a symptom of fibromyalgia. My doctor had provided all of the information necessary -7- 04-0303 CIVIL TERM to back fibromyalgia and its symptoms stating that depression is one of the symptoms. Q. Were you aware before you filled out this form in July of 2002, that depression was one of the aspects of fibromyalgia? A. No, I was not, because I was not being treated for depression. I was being treated for fibromyalgia. That is a whole different area. (Emphasis added.) An insurance policy is void if the insured fraudulently misrepresented material information on an application. See Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner of Commonwealth of Pennsylvania, 525 Pa. 306 (Pa. 1990). The Superior Court of Pennsylvania has set forth the following elements that an insurer must establish to avoid a policy because of misrepresentation: (1) The declaration must be false; (2) its subject matter must be material to the risk; and (3) the applicant must have known it to be false or have made the statement in bad faith. Bremmer v. Protected Home Mutual Life Insurance Co., 218 Pa. Super. 364 (1971). "Information is said to be material if knowledge or ignorance of it would naturally influence the judgment of the insurer in issuing the policy, in estimating the degree and character of the risk, or in fixing the premium rate." A.G. Allebach, Inc. v. Hurley, 540 A.2d 289 (Pa. Super. 1988). With respect to bad faith: [W]here it is established by uncontradicted documentary evidence that the insured has consulted physicians so frequently, or undergone medical or surgical treatment so recently, or of such a serious nature, that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance, bad faith may be inferred as a matter of law if the insured denies in his answer that any physician has been consulted, or any medical or surgical treatment has been received during the period of inquiry. -8- 04-0303 CIVIL TERM Freedman v. Mut. Life Ins. Co. of New York, 342 Pa. 404 (1941). DISCUSSION Nurse practitioner Pollock noted in her records on the five occasions she saw Sonya Fetterhoff between January 14, 2002 and April 22, 2002, which was before she filled out the application for insurance on July 26, 2002, an assessment of fibromyalgia and depression. She remembers telling plaintiff on January 14, 2002, that she was depressed. She never testified that she treated plaintiff for depression or advised her to receive medical advice for treatment for depression. Dr. Gallagher, who first saw plaintiff a little over three months after plaintiff filled out the application for the insurance, considered plaintiff's depression to be an outgrowth of her underlying medical condition of fibromyalgia. She never testified that she treated plaintiff for depression or that she advised plaintiff to receive medical advice for treatment for depression. There is nothing in the record to conclude that plaintiff was ever prescribed drugs for depression or was in any way treated for depression. Although plaintiff in her deposition answered "Yes" to a question, "Where you aware that Dr. Gallagher or her staff was noting among other things that they were treating you for depression as one of the subject areas," she later stated in response to the comment, "even through the medical records indicated five times in the time frame prior to you filling out this form the diagnosis of depression," that "I was not being treated for depression." And later she testified that, "my doctor had provided all of the information -9- 04-0303 CIVIL TERM necessary to back fibromyalgia and its symptoms stating that depression is one of those symptoms." Her testimony is consistent with the medical testimony in the record. Accordingly, although plaintiff's answer to the subject question on the insurance questionnaire was material to the risk sought to be insured, Universal Underwriters has not adduced sufficient evidence that the declaration made on the application was false, and plaintiff must have known it to be false or made the statement in bad faith, such that a jury could not return a verdict in plaintiff's favor. ORDER OF COURT AND NOW, this day of June, 2006, the motion of defendant for summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Robert L. O'Brien, Esquire For Plaintiffs Thomas E. Brenner, Esquire F or Defendant :sal -10- SONYA S. FETTERHOFF and STEVEN M. FETTERHOFF, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY, DEFENDANT 04-0303 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of June, 2006, the motion of defendant for summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Robert L. O'Brien, Esquire For Plaintiffs Thomas E. Brenner, Esquire F or Defendant :sal