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Gende v. Guarantee Trust Life Ins. Co.

OPINION FILED MAY 5, 1980.

MICHAEL GENDE, PLAINTIFF-APPELLEE,

v.

GUARANTEE TRUST LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McHenry County; the Hon. LEONARD BRODY, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Guarantee Trust Life Insurance Company (hereinafter referred to as Guarantee Trust) appeals from the judgment of the trial court awarding the plaintiff $1,056 in damages. Guarantee Trust issued a student accident insurance policy to the McHenry Community High School District No. 156. Michael Gende was a student at the McHenry Community High School, and through the school he enrolled in said plan and paid a premium for insurance for the 1976-77 school year. However, he did not receive an individual certificate of insurance nor was the school furnished an individual certificate for Michael Gende. The master policy issued to the school district promised to pay for losses resulting from injury to any "Insured Person * * * provided such injury is sustained by the Insured Person: (a) While participating as a member of an athletic team of the Policyholder in a regularly scheduled and approved practice session or game of the Covered Athletic Program." The definition of "Insured Person" is "any team member who is insured under this policy."

Michael Gende was injured in the mouth while playing football on the school grounds in an authorized school activity. The policy covered "[a]ccident medical expenses incurred within 52 weeks from date of injury." Gende submitted a claim for $670 for dental work within that period, which was paid. Subsequently, as a result of the same injury, Michael Gende incurred additional bills amounting to $1,056 for dental services rendered April 28 and June 16, 1978. These charges were incurred and the claims filed more than 52 weeks after the injury in question and Guarantee Trust declined payment on the ground that the later charge of $1,056 was not actually incurred within 52 weeks after the injury. Gende contended this provision was not enforceable because he was not so advised since Guarantee Trust had not furnished him an individual certificate of insurance and he was not aware of this limitation.

In an action brought by Michael Gende under a stipulation of facts the trial court held that Guarantee Trust by failing to furnish an individual insurance certificate to the student had violated section 367(2)(b) and section 367(5) of the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, pars. 979(2)(b) and 979(5)). Section 367(2)(b) reads as follows:

"(2) Any insurance company authorized to write accident and health insurance in this State shall have power to issue group accident and health policies. No policy of group accident and health insurance may be issued or delivered in this State unless a copy of the form thereof shall have been filed with the department and approved by it in accordance with Section 355, and it contains in substance those provisions contained in Section 357a as may be applicable to group accident and health insurance and the following provisions:

(b) A provision that the insurer will issue to the employer, or to the executive officer or trustee of the association, for delivery to the employee, member or employee of a member, who is insured under such policy, an individual certificate setting forth a statement as to the insurance protection to which he is entitled and to whom payable."

Section 367(5) of the Insurance Code reads as follows:

"(5) Special group policies may be issued to school districts providing medical or hospital service, or both, for pupils of the district injured while participating in any athletic activity under the jurisdiction of or sponsored or controlled by the district or the authorities of any school thereof. The provisions of this Section governing the insurance of group accident and health insurance shall, insofar as applicable, control the issuance of such policies issued to schools."

The trial court, therefore, gave judgment against Guarantee Trust for the dental bills subsequent to the 52-week period. In this appeal Guarantee Trust contends that the plaintiff has cited the wrong section of the Insurance Code and that the applicable sections are 367a(1)(c) and 367a(3), reading as follows:

"(1) Blanket accident and health insurance is that form of accident and health insurance covering special groups of persons as enumerated in one of the following paragraphs (a) to (g), inclusives

(c) Under a policy or contract issued to a college, school, or other institution of learning or to the head or principal thereof, who or which shall be deemed the policyholder, covering students or teachers.

(3) An individual application shall not be required from a person covered under a blanket accident or health policy or contract, nor shall it be necessary for the insurer to furnish each person a certificate."

Section 367 relates to "group" accident and health insurance, and section 367a relates to "blanket" accident and health insurance and defines it as "that form of accident and health insurance covering special groups of persons as enumerated in one of the following paragraph (a) to (g), inclusive." Subparagraph (c) is cited above.

The defendant contends the insurance provided to Michael Gende came under this category and therefore is "blanket" insurance and subject to subsection (3) of section 367a which is cited above. Guarantee Trust argues that their policy is blanket insurance, rather than group insurance, because the language of section 367a is more nearly appropriate to the actual situation which occurred here. It points out that actually section 367 is ...


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