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12/18/87 Elsie Holub, v. Holy Family Society

December 18, 1987

ELSIE HOLUB, PLAINTIFF-APPELLEE

v.

HOLY FAMILY SOCIETY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

518 N.E.2d 419, 164 Ill. App. 3d 970, 115 Ill. Dec. 894 1987.IL.1873

Appeal from the Circuit Court of Cook County; the Hon. John J. O'Toole, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

This is an appeal from an order which granted summary judgment in favor of the plaintiff. The defendant raises the following issues on appeal: (1) whether summary judgment was properly granted; and (2) whether, at the hearing on defendant's motion to reconsider the granting of summary judgment, the trial court tried issues of fact rather than determining if issues of fact existed.

We affirm.

The following facts are pertinent to our Disposition. In March 1982, plaintiff filed an application with defendant for health insurance coverage. In this application she disclosed the fact that she had a hypertensive condition, yet she denied that she suffered any other preexisting disorder. The policy excluded coverage of loss resulting from pre-existing conditions. Pre-existing conditions were defined as.

"any condition that was diagnosed or treated by a physician within 24 months prior to the effective date of the coverage or produced symptoms within 12 months prior to the effective date of coverage that would have caused an ordinary prudent person to seek medical diagnosis or treatment."

On March 20, 1982, the comprehensive medical coverage policy was issued to plaintiff subject to an exception rider which excluded coverage of loss related to her hypertension.

On October 4, 1982, plaintiff was admitted to Oak Park Hospital complaining of severe abdominal pain. She was diagnosed as having cancer of the rectosigmoid and a colostomy was performed by Dr. William Ashley. Plaintiff remained hospitalized until October 29, 1982.

On November 15, 1982, plaintiff notified defendant of her claim for expenses incurred as a result of her illness. In processing her claim, defendant reviewed a report made by Dr. William Ashley based upon a medical history he had taken from plaintiff prior to the surgery. Plaintiff, at that time, informed Dr. Ashley that she had been under the care of Dr. Edward Klitenick for hypertension and was seen by him every four months for routine examinations. It was during the course of one of those examinations, on October 27, 1980, that plaintiff mentioned that she had experienced blood in her stool but that it had completely subsided without treatment. Dr. Klitenick then performed a rectal examination. The results of that examination were negative and he assured her that there was nothing wrong. Again, on July 27, 1981, in another routine visit to Dr. Klitenick, plaintiff mentioned that since her first check-up, she had had some loose bowel movements. Dr. Klitenick performed a rectal examination, the results of which were negative, and he assured plaintiff that nothing was wrong. He put plaintiff on a bland diet and prescribed combid spansules. According to Dr. Klitenick, he generally prescribed this medication when a patient complained of intestinal disorders such as having the flu.

Based upon a review of plaintiff's medical history and reports, defendant denied coverage under plaintiff's policy and disclaimed all liability on her claim. Defendant claimed that plaintiff failed to disclose a pre-existing condition, of which she was aware, on her application for insurance, thereby inducing defendant to issue a policy without benefit of a full and complete medical history.

On August 18, 1983, plaintiff filed a complaint to recover these expenses. In response, defendant filed an answer and affirmative defense. On February 27, 1986, plaintiff filed a motion for summary judgment supported by the affidavits of herself and Dr. Klitenick. The motion for summary judgment was granted. Defendant filed a motion to reconsider and plaintiff filed a response. ...


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