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November 22, 2004.


The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Moirav Shaltiel ("Shaltiel"), invoking federal jurisdiction on diversity of citizenship grounds, has sued Fortis Insurance Company ("Fortis") under the Declaratory Judgment Act, 28 U.S.C. § 2201. Shaltiel seeks a ruling that under the terms of a medical insurance Master Group Policy ("Policy") issued by Fortis, it is obligated to provide benefits covering gastric bypass surgery that she ultimately underwent on March 8, 2004.

Shaltiel and Fortis have filed cross-motions under Fed.R. Civ. P. ("Rule") 56 for summary judgment as to Fortis' liability or nonliability under the Policy.*fn1 For the reasons stated in this memorandum opinion and order, Shaltiel's motion is granted, while Fortis' motion is naturally denied. Rule 56 Standards

  Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). Where as here cross-motions for summary judgment are involved, these principles require the court to take a dual perspective — one that this Court has frequently described as Janus-like. Here that problem does not exist, for the underlying facts are not in dispute — instead the parties are at odds only about the meaning of an exclusionary provision in the Policy. Thus the issue is one of contract interpretation and is ripe for disposition at the summary judgment stage (Bechtold v. Physicians Health Plan of N. Ind., Inc., 19 F.3d 322, 325 (7th Cir. 1994)).


  On September 1, 1996 Fortis issued Shaltiel a medical insurance certificate reflecting her coverage under the Policy (J. St. ¶ 10). Shaltiel retained the certificate and duly paid all premiums for the coverage afforded by the Policy (J. St. ¶ 12). As reflected in the Policy's benefits schedule, benefits were to be paid for "Covered Charges" (a defined term) incurred by Shaltiel while coverage was in force (J. Ex. 1). In relevant part Covered Charges were defined as those charges for treatment determined by Fortis to be (1) medically necessary and (2) not listed in the stated "Exclusions" from benefits (id.).

  On May 2, 2003*fn2 Dr. John C. Alverdy of the University of Chicago's Center for Surgical Treatment of Obesity sent a fax to Fortis seeking pre-authorization of benefits on behalf of Shaltiel "for a gastric restrictive procedure with gastric bypass for morbid obesity" (J. St. ¶ 14; J. Ex. 2). Dr. Alverdy's letter further specified that the medical co-morbidities associated with her morbid obesity included hypertension and obstructive sleep apnea (J. Ex. 2). Fortis' swift May 6 letter response declined benefits for the proposed surgery on the basis of a specific Exclusion from Policy coverage (J. Ex. 1):
We will not pay benefits for any of the following:
* * *
Treatment of "quality of life" or "lifestyle" concerns including but not limited to: smoking cessation; obesity; hair loss; sexual function, dysfunction, inadequacy or desire; or cognitive enhancement.
  That May 6 letter further advised Shaltiel of her right to appeal the benefit determination.

  Shaltiel appealed the initial determination through her attorney Gerald Mullin ("Mullin") in a May 14 letter (J. St. ¶ 16) that explained the proposed surgery was "neither primarily a lifestyle or cosmetic undertaking [but] rather an attempt to cure severe morbid obesity that is potentially life threatening" (J. Ex. 4). Fortis' June 2 letter response to Mullin repeated its denial of benefits based on the above-quoted Policy language and advised him of Shaltiel's right to file a first level grievance as to the adverse determination (J. St. ¶ 18).

  Shaltiel did so through Mullin on July 22 (J. St. ¶ 19) with a written grievance that included the previous correspondence between the parties, a medical report from Dr. Alverdy reflecting his determination that Shaltiel was an appropriate candidate for the procedure and two medical journal articles regarding the proposed treatment (J. Ex. 6). On August 19 Fortis sent Mullin a letter stating that it had reviewed the information he sent but that it was unable to reverse its original decision that benefits were not available for Shaltiel's proposed gastrointestinal surgery (J. St. ¶ 20).

  On October 13 Shaltiel (through Mullin) filed a second level grievance that included a letter from Dr. Ronald A. Feingold stating that Shaltiel was suffering from "marked exogenous obesity, hypertension and sleep apnea" and that she had been "advised for medical reasons to undergo gastric bypass surgery for treatment of her obesity" (J. St. ¶ 22; J. Ex. 9). Fortis' November 6 letter response stated that following a review by the Fortis Health Grievance Panel it had been determined that benefits were not available for the proposed surgery because "[t]he certificate specifically excludes treatment of obesity" (J. St. ¶ 23; J. Ex. 10). Fortis' letter further said that all avenues in Fortis' internal grievance process had now been exhausted (id.).

  Shaltiel underwent gastric bypass surgery on March 8, 2004 (J. St. ¶ 24). According to the report of an examination conducted by Dr. Feingold on June 28, 2004, since the surgery Shaltiel had lost 61 pounds, no longer had symptoms of sleep apnea and had normal blood pressure levels (J. St. ¶ 25).

  Shaltiel's Entitlement to Benefits

  Because the Policy was executed and issued in Illinois, it is construed in accordance with Illinois law (Cross v. Zurich Gen. Accident & Liab. Ins. Co., 184 F.2d 609, 611 (7th Cir. 1950)). For that purpose the sole question to be decided here is whether Shaltiel's gastric bypass surgery fell within the earlier-quoted Exclusion. In that respect Shaltiel argues that the Exclusion language does not encompass gastric bypass surgery in her case, while Fortis contends that it excludes all treatment that addresses obesity, including gastric bypass surgery regardless of its purpose.

  Contract construction under Illinois law involves the two-step inquiry set out in Lumpkin v. Envirodyne Indus., Inc., 933 F.2d 449, 456 (7th Cir. 1991). First the court looks to the language of the contract. If the plain language provides an unambiguous answer to the issue in dispute, the inquiry is over (id.). But if the contractual language is ambiguous as to that issue, the court must then go on to declare the contract's meaning (id.). And where as here the extrinsic ...

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