APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
KELLY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiffs brought this action to recover medical benefits under a health insurance policy. The trial court granted defendant's motion for summary judgment. On appeal plaintiffs contend: (1) that an exclusionary provision in the policy does not apply and, alternatively, if it does apply, (2) that defendant's agent waived this provision.
On February 25, 1974, plaintiffs entered into a contract of health insurance, under which defendant agreed to pay certain medical expenses incurred as a result of sickness or injury. The policy defined sickness as follows:
"Sickness means sickness or disease that first manifests itself after the coverage under which claim is made has been in force 30 days for the family member whose sickness is the basis of the claim."
In April 1974 plaintiffs filed a claim with defendant for medical expenses incurred as a result of surgery performed on Mrs. Cardamone. Defendant refused to honor plaintiffs' claim, asserting that the sickness first manifested itself during the exclusionary period of the policy. Plaintiffs brought suit alleging that the exclusionary provision does not apply. Later, plaintiffs amended their complaint, adding a second count, in which they alleged in the alternative that defendant's agent waived this provision. Thereafter, the court granted defendant's motion for summary judgment based on the following facts adduced through discovery depositions.
On February 25, 1974, he and his family applied to defendant, through its agent, J. Hilgenberg, for health insurance. Other than pregnancy, Hilgenberg did not discuss policy exclusions with him.
He next spoke with Hilgenberg sometime between April 3 and the date his wife entered the hospital (April 18, 1974). He asked him to check the policy and tell him if it covered his wife's gallbladder surgery. Hilgenberg said it did.
He also visited defendant's office in Skokie on April 15 or 16, 1974. There he spoke to an unidentified woman, who told him that the policy covered his wife's operation. Although he told her his wife had X rays on April 1, 1974, he did not mention that his wife had visited Dr. Giardina on March 25, 1974.
Neither agent of defendant asked how long his wife had suffered stomach pains.
She first visited Dr. Giardina on March 25, 1974, complaining of stomach pains, which she had been having for about a week or two. The pains were not constant, but would come and go. She had no idea she had gallstones. Dr. Giardina suggested about six possible causes of the pain including a gastric problem, a spastic stomach, an ulcer, and gallstones.
On her second visit to Dr. Giardina he informed her that she had gallstones and that she would need surgery. Thereafter, she spoke with Hilgenberg three times. On each occasion he assured her that the policy covered her operation. Although she told him she needed gallbladder surgery, she did not tell him she had visited Dr. Giardina on March 25, 1974. Neither Hilgenberg nor the defendant's office in Skokie asked if she had seen a physician.
Originally the hospital requested a $500 deposit; however, after the hospital called defendant it ...