Ellis Estate v. Cigna Life Insurance Company of Canada

Ellis Estate v. Cigna Life Insurance Company of Canada Court Supreme Court Date 2005-06-02 Citation 2005 NSSC 143 Docket S.Ph. No. 199689 Judge/Registrar/Adjudicator Edwards, Frank C. (Honourable Justice) Document Type Decision Relations Library Sheet - Ellis Estate v. Cigna Life Insurance Company of Canada - 2005 NSSC 143 - 2005-06-02 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Ellis Estate v. Cigna Life Insurance Company of Canada, 2005 NSSC 143 Date: 20050602 Docket: S.PH No. 199689 Registry: Port Hawkesbury Between: The Estate of John Gary Ellis Plaintiff v. Cigna Life Insurance Company of Canada Defendant Judge: The Honourable Justice Frank Edwards Heard: May 20, 2005, in Port Hawkesbury, Nova Scotia Counsel: Gerald A. MacDonald, for the plaintiff Clare E. Bilek, for the defendant By the Court: [1] This is an application under Civil Procedure Rule 25 for the determination of a question of law. An Agreed Statement of Facts has been filed and is attached as Appendix A to this decision. [2] Background: This dispute is in relation to a Policy of Insurance (the “Policy”) covering the lease payments of a motor vehicle in the event of disability of the borrower, John Gary Ellis. Mr. Ellis ceased working on October 17, 2002, with a primary diagnosis from his physician of pulmonary hypertension with an additional diagnosis of cirrhosis of the liver. He applied for the disability benefits which were denied on the basis that he had a Pre‑Existing Condition within the terms of the Policy. Mr. Ellis filed his Statement of Claim on April 30, 2003. The Defence was filed on June 30, 2003. Lists of Documents were not exchanged and discoveries were not conducted as the parties agreed to proceed to have the matter determined pursuant to Nova Scotia Civil Procedure Rule 25. [3] Issues: The parties agree that pursuant to Civil Procedure Rule 25, there is only one issue to determine in order to finally determine this matter, that is, whether the medical diagnosis of pulmonary hypertension and cirrhosis of the liver in Mr. Ellis constitutes a pre‑existing condition as defined within the Policy. Law and Analysis [4] The Policy: The Application for Insurance is found at Exhibit #1 of the Agreed Statement of Facts, and it contains a heading in bold and capital letters reading: TO BE READ AND SIGNED BY THE BORROWER AND CO‑BORROWER: [5] One of the bullets beneath it states: No Benefits are payable if Death or a Total Disability results from any Pre‑existing Condition(s) as defined on the reverse of this form; [6] On the reverse of the application is the Certificate of Insurance that contains a Definitions section. Several pertinent terms are defined and have been included in the Agreed Statement of Facts. For ease of reference, I will include them again below: 3. ‘Pre‑existing Condition’ means any physical or medical condition, symptom, illness, or disease, diagnosed or undiagnosed, suffered by you for which you received Treatment or Advice in the 6 month period immediately preceding the Date Insurance Begins. A Pre‑existing Condition does not include any condition(s) that existed in the 6 month period immediately preceding the Date Insurance Begins if you have been free of Treatment of Advice for such Condition(s) for 6 consecutive months immediately following the Date Insurance Begins. 4. ‘Treatment or Advice’ means consultation, and/or care and/or service provided by a licensed medical practitioner. This includes but is not limited to diagnostic measures and prescribed drugs. [7] The Certificate of Insurance, Section 1, also has a heading called “Risks Not Covered”. It states: “No Benefits are payable if Death or Total Disability or Accidental Dismemberment results: 1. From a Pre‑existing Condition.” [8] The date insurance began in this instance was May 16, 2002. Applying the definition of Pre‑existing Condition, the relevant six month period is November 16, 2001 to May 16, 2002. Upon a review of the medical documentation submitted in the application for disability payments it became apparent that the Claimant was being investigated for what we now know was pulmonary hypertension. The Claimant was therefore seeking treatment or advice within the definition in the Policy. Mr. Ellis consulted with his family doctor and other specialists within the 6 month period and underwent several diagnostic procedures. [9] Medical Documentation: On April 16, 2002, the Claimant had a chest x‑ray that demonstrated the possibility of congestive heart failure (Exhibit #2). Follow up radiographs were recommended after therapy. The Plaintiff’s Brief indicates that Mr. Ellis saw Dr. Holmes on March 16, 2002, who then sent his patient for further tests. Presumably those tests included the chest x‑ray referred to above. [10] A second chest x‑ray was performed at the request of Dr. Holmes just ten days later, on April 26, 2002. This report (Exhibit #3) stated that the interstitial pulmonary edema or pleural effusions suggested “frank congestive heart failure.” Certainly at this point there is no clear diagnosis, but that advice was being sought by Mr. Ellis and Dr. Holmes on what was causing his symptoms. He must have been suffering some symptoms which prompted a visit to Dr. Holmes, who then began a series of investigations to come up with a diagnosis. Later reports referred to below indicate that one of the symptoms that prompted Mr. Ellis to see his doctor was shortness of breath. [11] An echocardiogram on May 27, 2002 (Exhibit #4), confirmed the diagnosis of pulmonary hypertension. A note from Dr. Howlett dated October 18, 2002 indicates that the Claimant’s pulmonary hypertension was likely caused by an underlying cirrhosis of the liver. Dr. Howlett noted that this is an uncommon but fully recognized complication of cirrhosis of the liver. [12] In a report from Dr. Baillie of the Heart Function Clinic in Sydney, Nova Scotia, dated June 10, 2002 (Exhibit #5), Dr. Baillie mentioned pulmonary hypertension as a diagnosis. Dr. Baillie expressed confusion as to the root of the problem and ordered further investigations. The diagnosis was ultimately made of cirrhosis of the liver and pulmonary hypertension in October, 2002. In a report to Dr. Holmes dated November 25, 2002 (Exhibit 11), Dr. Roger Michael stated that Mr. Ellis had experienced shortness of breath ongoing for eight months, meaning back to March, 2002. Again, this is another symptom that has been found to be related to his final diagnoses. [13] Dr. Holmes sent a letter dated January 13, 2003, to Unity Managing Underwriters Ltd. in relation to Mr. Ellis’ claim for disability benefits. He stated that Mr. Ellis’ physicians were unaware that he had a chronic condition. They thought that he simply had an episode of congestive heart failure and they were unsure of the Claimant’s problems at that time. In a second letter dated January 31, 2003, Dr. Holmes provided further clarification of the mechanism of the illness in that he stated that the Claimant had pulmonary hypertension secondary to cirrhosis of the liver. He said that the Claimant was unaware that he had either of these conditions at the time he applied for insurance. [14] While there is no allegation of bad faith or nondisclosure being made in this case, the medical information shows that while the cirrhosis and pulmonary hypertension were not diagnosed at the time of the effective date of the Policy, Mr. Ellis was certainly experiencing symptoms of heart disease at that time and he was in the process of being investigated within the six month Pre‑existing Condition timeframe. [15] The determination of whether or not Mr. Ellis was being investigated for pulmonary hypertension in the 6 month period prior to the date the insurance policy in question took effect determines the entire cause of action. Because Mr. Ellis had an episode in March/April 2002, just one month prior to the date insurance began, he began a series of investigations which led to the medical diagnosis of cirrhosis of the liver and pulmonary hypertension. These diagnoses led to Mr. Ellis’ disability and all of the medical documents submitted as exhibits to the Agreed Statement of Facts support this conclusion. [16] Law: The applicable portions of Civil Procedure Rule 25.01 state: “(1) The Court may, on the application of any party or on its own motion, at anytime prior to a trial or hearing, (a) determine any relevant question or issue of law or fact, or both; (2) Where in the opinion of the Court, the determination of any question or issue under paragraph (1) substantially disposes of the whole proceeding, or any cause of action, ground of defence, counterclaim or reply, the Court may thereupon grant such judgment or make such order, as is just.” [17] Several cases are relied upon in the Plaintiff’s brief to support their position that the Pre‑existing Condition clause in the Policy should be interpreted as allowing coverage to the claimant. All of those cases can be distinguished from the facts of this case. The clauses in the Policy issued by the Defendant are clear and unambiguous and contemplate exactly the set of circumstances that are present in the case before this Court. [18] In Van Maele v. Alberta Blue Cross Benefits Corp, 2004 CarswellAlta 403 (Q.B.), a claim was made on a disability insurance policy that contained a pre‑existing conditions clause almost identical to the one at issue in the case at bar. It triggered exclusion of coverage for any disability caused by a sickness or injury for which the claimant received medical treatment, consultation, care or services, including diagnostic services, in the three months prior to the date insurance began. The claimant’s symptoms were evidenced in the three month waiting period but no diagnosis was made. Justice Topolniski found the exclusion clause to be unambiguous. Even on a narrow interpretation, he was satisfied that the presence during the waiting period of symptoms of the disease that was later diagnosed was sufficient ground to defeat the plaintiff’s claim, notwithstanding the delay in making the ultimate diagnosis and treating the underlying cause. [19] The Defendant also relies on the case of Leveque v. Seaboard Life Insurance Co., 1995 CarswellSask 536 (Q.B.). There the plaintiff bought disability insurance two months after an x‑ray revealed she had arthritis in her hips. The policy contained an exclusion clause similar to the one at issue in that it excluded coverage for any disability caused by disease or physical condition for which the insured had received medical advice, treatment or consultation from a doctor within six months before the policy’s effective date and which recurred within six months following that date. Five months later the plaintiff saw her doctor for sore hips and arthritis was again diagnosed. She later became disabled by the arthritis, and testified at trial that she was not told about the diagnosis of arthritis until eight months after the policy took effect. The action was dismissed on the basis that the arthritis was present before the policy took effect, and it did not matter whether she was told of the diagnosis or even whether a diagnosis had been made. She had sought medical advice, treatment or consultation within the relevant period for the disease or physical condition that led to her disability. [20] The same principles that were applied in Leveque, supra, apply to this case. The fact that a firm diagnosis had not been made at the time of disability does not matter; what matters is that Mr. Ellis sought treatment and advice and underwent diagnostic measures in relation to symptoms he was experiencing in the relevant period. Those symptoms were later found to be those of pulmonary hypertension, which later was found to be related to the ultimate disease of cirrhosis of the liver. [21] The case of Van Maele, supra, distinguished a case that the Plaintiff in this case relies on, that being Dunphy v. Seaboard Life Insurance Co. [1987] B.C.J. No. 45 (BC County Ct.). At para. 22, Topolniski J. states: “Dunphy is distinguishable from the present case on two grounds. First, the Policy wording in Dunphy differs in that it does not include language relating to ‘diagnostic measures.’ Second, and more significantly, the plaintiff’s doctors in Dunphy were unable to say that she suffered from malignant carcinoma before the effective date of the policy, whereas the evidence here is that the cause of the Plaintiff’s illnesses and symptoms during the waiting period was the very syndrome that was ultimately diagnosed.” [22] The same grounds of distinction apply in the present case. The Policy contains reference to “diagnostic measures” which were clearly being undertaken by Mr. Ellis during the waiting period. Also, Mr. Ellis’ doctors are able to say that his symptoms experienced during the six month pre‑existing period are fully recognized symptoms of pulmonary hypertension and cirrhosis of the liver. Further, the clause in this Policy refers to a pre‑existing condition that is “diagnosed or undiagnosed.” The decision of the Court in Dunphy required a definitive diagnosis, whereas the clause in the present case contemplates an illness that is undiagnosed. The clauses governing pre‑existing conditions are entirely different and must be interpreted differently as well. The Dunphy case is irrelevant to the case at bar. [23] For the same reasons as the Dunphy decision is inapplicable, so also is the Hollett v. Insurance Corp of Newfoundland Ltd. [1985] N.J. No. 133 (Nfld.S.C.) decision on which the Plaintiff relies. There the plaintiff’s physicians were in the process of diagnosing his back problems while the plaintiff was taking home remedies for his symptoms. The exclusion clause there again did not contemplate the diagnostic processes. The clause is not the same as the one at bar that specifically contemplates diagnostic procedures prior to a definitive diagnosis. The clause in the present case contemplates Treatment or Advice, whereas the clause in the Hollett decision contemplates only treatment, and the home remedies were found not to constitute treatment within the wording of the exclusion clause. [24] The Forgo (Estate) v. TOS Insurance Services Ltd. [1994] B.C.J. No. 3004 (B.C.S.C.) case is also one that is not applicable to the case at bar. The facts of that case are entirely different which renders the decision irrelevant. The plaintiff had no symptoms in the relevant pre‑policy period of twelve months for life insurance. He ultimately died from melanoma, which he had also had two years prior to the effective date of his policy. In this case, Mr. Ellis had specific symptoms of the disease that ultimately rendered him disabled from working. He experienced heart symptoms for which he sought advice and underwent diagnostic tests, and which listed as the primary cause of disability by his family physician in submitting his claim for disability benefits. [25] The final case to which the Plaintiff refers in the Plaintiff’s Brief is St. Laurent v. Sun Life Assurance Co. of Canada [1988] N.B.J. No. 621(N.B.C.A.). Again, the facts and clause at issue are completely different, therefore the case is of no assistance. It may be a useful case where there is an issue of ambiguity, in that it reiterates that any ambiguity in a policy should be resolved in favour of the insured. However, the clause at issue is unambiguous and contemplates the very circumstances that have arisen in this case, and specifically excludes such instances. [26] According to Van Maele, supra, the defendant has the onus of proving the causative link between the plaintiff’s prior medical conditions and his disability. The Defendant has met that onus, as the symptoms for which Mr. Ellis sought advice and underwent diagnostic measures turned out to be pulmonary hypertension. It was not certain for some months whether it was a primary or secondary diagnosis to cirrhosis of the liver. At the time of the claim for disability benefits, it was the primary reason for leaving work. The Van Maele, supra, case also reiterates an important principle regarding policy interpretation at para. 13: “Further, when reviewing the case law, it is important to carefully analyze policy wording since slight differences in the wording can have a significant impact on the outcome of the decision.” [27] The policy wording in the case law that is closest to the wording in the clause at issue is that found in Van Maele, supra. Therefore, the policy is unambiguous and must be interpreted to deny this claim. Mr. Ellis was experiencing symptoms of pulmonary hypertension in the relevant six month period, he sought advice from Dr. Holmes in relation to these symptoms, underwent x‑rays and other investigations, and later became disabled due to pulmonary hypertension. These facts lead to the conclusion that he suffered from a Pre‑existing Condition and benefits are not available under the Policy. [28] Conclusion: The action is dismissed. The Defendant shall have its costs in the amount of $700.00 plus reasonable disbursements to be taxed. Order accordingly. J. APPENDIX A 2003 S.P.H. 199689 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: THE ESTATE OF JOHN GARY ELLIS by way of MARGARET ANN ELLIS, Personal Representative, of R.R. #1, River Denys, in the County of Inverness, and Province of Nova Scotia, B0E 2Y0 PLAINTIFF ‑ and ‑ CIGNA LIFE INSURANCE COMPANY OF CANADA, c/o Unity Managing Underwriters Limited, of P.O. Box 1315, Station A, Willowdale, Province of Ontario, M2N 6J7 DEFENDANT AGREED STATEMENT OF FACTS Pursuant to Civil Procedure Rule 25.01: 1. The Plaintiff, the Estate of John Gary Ellis, is carrying on the action of the deceased, John Ellis. 2. The Defendant, Cigna Life Insurance Company of Canada, is an insurance company doing business in Nova Scotia. 3. The Defendant issued a term disability policy on May 16, 2002 for the benefit of John Gary Ellis, Certificate Number 8899625, Group Policy Number GPNGC894 Plan 1, which is attached to this Agreement Statement of Facts as Exhibit #1. 4. The Defendant is an insurance company providing a benefit to persons who purchase leased vehicles. This is a term policy covering 48 months, whereby if a person becomes disabled while a policy is in effect, the insurance company will make the monthly vehicle payments, provided one falls within the terms of the policy. 5. One term of the policy states that payment will not be made in instances where the insured is disabled due to a pre‑existing condition whereby the insured received treatment or advice in the 6 months period preceding the date of the policy. 6. The six month period prior to the effective date of the policy began to run in this instance on November 16, 2001. 7. Under Section 1 of the Certificate of Insurance, under the heading of Definitions, it is stated: 2. "Sickness" means illness or disease which first manifests itself while you are insured under the Group Policy with respect to the Loan. "Sickness" includes mental, nervous, psychological, emotional or behavioural disorders, disease or conditions. 3. "Pre‑existing Condition" means any physical or medical condition, symptom, illness, or disease, diagnosed or undiagnosed, suffered by you for which you received Treatment or Advice in the 6 month period immediately preceding the Date Insurance Begins. A "Pre‑existing Condition" does not include any condition(s) that existed in the 6 month period immediately preceding the Date Insurance Begins if you have been free of Treatment or Advice for such conditions for 6 consecutive months immediately following the Date Insurance Begins. 4. "Treatment or Advice" means consultation, and/or care and/or service provided by a licensed medical practitioner. This includes but is not limited to diagnostic measures and prescribed drugs. 8. John Gary Ellis was unable to continue working as an employee with the USG Plant in Point Tupper, Nova Scotia, as of October 18, 2002 because of pulmonary hypertension and cirrhosis of the liver. 9. The Plaintiff and the Defendant have agreed upon the Statement of Facts and submit the single issue to be determined pursuant to Rule 25 of the Civil Procedure Rules, in order to dispose of the matters between them (CPR 25:01(2)) is: "Does the medical diagnosis constitute a pre‑existing condition as defined within the Policy?" 10. The Plaintiff and the Defendant submit the enclosed medical reports by consent: Exhibit #2: 16 April, 2002 ‑ X‑ray consultation report, St. Martha’s Regional Hospital Exhibit #3. 29 April, 2002 X‑ray consultation report, St. Margaret’s Regional Hospital Exhibit #4: 25 April, 2002 ‑ Victoria County Memorial Hospital CBC Test Exhibit #5: 10 June, 2002 ‑ Report of Dr. Robert P. Baillie, Internal Medicine Exhibit #6: 27 June, 2002 ‑ Report of Dr. Robert P. Baillie, Internal Medicine Exhibit #7: 18 October, 2002 ‑ Report of Jonathan G. Howlett, Cardiologist Exhibit #8: 18 October, 2002 ‑ Cardiology Clinical Care Summary Exhibit #9: 22 October, 2002 ‑ Bank of Montreal Attending Physician’s Statement Exhibit #10: 24 October, 2002 ‑ Surgical Pathology Report Exhibit #11: 25 November, 2002 ‑ Report of Dr. Roger T. Michael of Victoria General Hospital Exhibit #12: 13 January, 2003 ‑ Report of Dr. Andrew Holmes, Family Physician