STATE OF NEW YORK

SUPREME COURT: CHAUTAUQUA COUNTY

_________________________________


MELANIE L. ANDERSON


Plaintiff,

vs Index #H-03494


NIAGARA FRONTIER AUTOMOBILE DEALERS

ASSOCIATION EMPLOYEES HEALTH AND

WELFARE TRUST


Defendant.

_________________________________


DONALD H. MICHALAK, Esq.

Attorney for Plaintiff



ALBRECHT, MAGUIRE, HEFFERN & GREGG, P.C.

(William P. Keefer, Esq.

of Counsel) for Defendant



DECISION and ORDER



GERACE, J.


The motions of both parties for summary judgment are


denied, except that plaintiff is entitled to partial


summary judgment for $1275.95, representing claims


defendant acknowledges were filed by plaintiff.


Plaintiff was employed at Hank Bokman Chevrolet on or


about September 10, 1987. Her health insurance coverage


was effective as of November 1, 1987. On October 20, 1987,


she seen by her doctor for an annual examination. At that


examination the doctor wrote that "laparscopy discussed"


with the patient. Plaintiff denies this. Doctor's notes


say otherwise.


After the effective date of her coverage, she was


scheduled for diagnostic examination on November 2, 1987,


January 11, 1988, and surgery at Brooks Hospital on


February 12, 1988.


Defendant denied payment under the pre-existing


condition provision of the health plan.


This Court holds that the exemption from the pre-


existing clause applies to employees of a dealer who joined


the plan after March 1st, 1985. If the word dealer has not


been defined, how would defendant apply the term to a


corporation? Dealer would seem to mean the dealership,


including the employees.


Even if it did apply, plaintiff's visit to her doctor


for a routine examination prior to the effective date of


her eligibility for health coverage did not fall within the


exclusion which reads: "No payment shall be made for


charges related to any condition, disease, or symptom which


existed prior to the date the employee . . . became


enrolled for benefits under this plan and for which the


covered person either saw or received medical treatment or


advise from a Health Care Provider within 12 months


preceding his coverage eligibility date".


There is a question whether plaintiff filed a claim in


time for the full amount of the medical expenses and


whether she sent all the bills to the carrier? She says


yes; the carrier says she only sent in $1245.95 for


hospital charges and $30.00 for the January, 1988 doctor's


visit.


In March, plaintiff sent a letter enclosing bills she


had at that time. The records of the doctor indicate the


bills were sent to plaintiff after her letter to the


carrier.


This issue presents a question of fact for a jury.


There is also a question whether plaintiff obtained


authorization before the operation from the carrier to go


ahead with the laparscopy. Plaintiff says yes, via


telephone call. Defendant says consent needs to be in


writing for this type of surgery.


The insurer can waive this requirement. If plaintiff


can establish to the satisfaction of a jury that such


telephone authorization was given to her and/or her


physician or the hospital, she will have met her obligation


under the contract.


Did the doctor give the insurer notice and obtain


permission to proceed with the operation? Insurer says no.


This presents a question of fact for a jury.


Was the insurer aware of all the bills when it advised


the physician that it closed the case because of a pre-


existing condition? Note by doctor indicates it may have


had his bill at time he was advised case was closed.


In motions for summary judgment, the Court's


responsibility is limited to issue identification, not


issue resolution, except for those that may be resolved as


a matter of law.


This case is 2 years shy of a decade old. That


plaintiff's counsel has not sought discovery in all these


years is a sad commentary. For this reason, the Court


directs both counsel to complete discovery no later than


December 8, 1995 and that plaintiff file a note of issue no


later than December 15, 1995.


The Court grants plaintiff partial summary judgment


for $1275.95 plus interest which is due for plaintiff's


hospital bill and a medical visit, denies the motion of


defendant, and orders a trial of the issue whether she


submitted a proper claim; whether she submitted bills.


For the convenience of witnesses and to expedite


trial, this case is hereby transferred to City Court of


Dunkirk.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.



Dated: October , 1995

Mayville, New York



____________________________

JOSEPH GERACE

SUPREME COURT JUSTICE



To all Counsel:


Please take notice that a DECISION and ORDER of which the

within is a copy, is duly granted in the above entitled

action on the day of October, 1995, and duly entered in

the office of the Clerk of the County of Chautauqua on the

same date.