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ESDALE v. AMERICAN COMMUNITY MUT. INS. CO.

January 26, 1996

SUSAN ESDALE, Plaintiff, -vs- AMERICAN COMMUNITY MUTUAL INSURANCE COMPANY, Defendant.


The opinion of the court was delivered by: LINDBERG

 Plaintiff, Susan Esdale, seeks a declaratory judgment that her treatment for Stage II breast cancer by high dosage chemotherapy with peripheral stem cell rescue ("HDCT/PSCR") is covered by her insurance policy with defendant, American Community Mutual Insurance Company. Defendant has moved for summary judgment.

 On November 30, 1993, plaintiff applied for defendant's non-renewable short term major medical expense policy ("the policy"). The policy became effective for two months on December 1, 1993. On July 20, 1994, plaintiff filed this action in the Circuit Court of Cook County. Defendant removed the action to this court on July 28, 1994.

 The original complaint sought injunctive relief and a declaration that high dose chemotherapy with autologous bone marrow transplant ("HDCT/ABMT") was covered by the policy. The complaint was later amended to seek a declaration of coverage for HDCT/PSCR, which is the treatment actually at issue in this case.

 The policy provided coverage for "Covered Charges." The policy stated, inter alia:

 
Covered Charge means an expense of a Family Member due to sickness or injury which:
 
1. Is due to Medically Necessary care or treatment[.]
 
. . . .
 
Medically Necessary means recommended by a licensed physician and commonly recognized in the licensed physician's profession as proper care or treatment. Medically Necessary does not mean a procedure that is deemed to be experimental or investigational in nature by any appropriate technological assessment body established by any state or federal government.
 
Summary judgment should be rendered:
 
If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 FRCP 56(c). The moving party bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Adickes v S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). A court in ruling on a motion for summary judgment will draw all reasonable inferences from the facts favorable to the nonmoving party. Hermes v Hein, 742 F.2d 350, 353 (7th Cir 1984). However, the nonmoving party bears a burden with respect to issues on which it has the burden of proof. As the 7th Circuit has said:

 
Summary judgment is appropriate where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). . . . The summary judgment standard "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." [ Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986)].

 Teamsters Local 282 Pension Trust Fund v Angelos, 839 F.2d 366, 369-70 (7th Cir 1988).

 The question presented by defendant's motion for summary judgment is whether the undisputed facts establish that HDCT/PSCR for Stage II breast cancer is not medically necessary as that term is defined in the policy. According to the policy, it would not be medically necessary if it is "a procedure that is deemed to be experimental or investigational in nature by any appropriate technological assessment body established by any state or federal government." Plaintiff maintains that this requirement for medical necessity under ...


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