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09/02/87 ROBERT ROZEK AND HAZEL ROZEK v. AMERICAN

Filed: September 2, 1987.

ROBERT ROZEK AND HAZEL ROZEK, APPELLANTS (PLAINTIFFS BELOW),
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, APPELLEE (DEFENDANT BELOW)



APPEAL FROM THE MARION COUNTY MUNICIPAL COURT CIVIL DIVISION, ROOM NO. 1, The Honorable Joseph N. Myers, Judge, Cause No. M184-1598.

Sullivan, Buchanan and Neal, JJ., Concur.

Author: Sullivan

SULLIVAN, J.

On July 1, 1971, Hazel Rozek obtained a "Comprehensive Family Hospital, Surgical & Medical Expense Policy" from American Family Mutual Insurance Company. The policy was designed to pay eighty percent of the first $500 in eligible medical expenses and all the remaining eligible medical expenses, to a $10,000 maximum. "Eligible medical expenses" included, inter alia, "surgical procedures performed by a physician . . . ." Record at 6.

On the insurance application, Rozek responded affirmatively to the question, "Have you . . . been treated for or ever had any known indication of chest pain, palpitation [or] high blood pressure? . . ." Record at 11. She explained that she had high blood pressure; that it was a current condition; that the condition was "normal;" and that she took medication for the problem. As a result of this disclosure, the policy included an exclusionary waiver provision. Part of the provision was preprinted upon the form and part of the provision was added by typewriter. The entire provision is as follows:

"WAIVER - This policy does not cover anything of which the following is the sole, primary, or secondary cause, anything in the policy to the contrary notwithstanding:

'TREATMENT OF HAZEL FOR HYPERTENSION, ITS UNDERLYING CAUSES, AND ITS COMPLICATION.'" Record at 15.

Throughout the 1970's, Rozek's blood pressure was controlled through medication. In 1981, her blood pressure increased and was much more difficult to control, prompting her doctor, Gilbert Barnes, to change medications. Dr. Barnes found that Rozek's sodium level was roughly normal, but that her potassium level was low. This indicated, he believed, a hormonal problem as a factor causing high blood pressure.

In January, 1983, Rozek was referred to Dr. Rashid Khairi, an endocrinologist, because of the apparent glandular condition. Dr. Khairi treated the low potassium level with an injection, and, despite the fact that they are "very rare," tested for an adrenal gland tumor. The tests confirmed his diagnosis. Rozek's tumorous left adrenal gland was successfully, surgically removed on May 2, 1983.

According to Drs. Khairi and Barnes, the adrenal glands produce a hormone called aldosterone which controls "salt and water metabolism" in the body. The tumor, the cause of which is unknown, caused hyperaldosteronism, which is excessive secretion of the hormone aldosterone. See Stedman's Medical Dictionary, 40 (4th Lawyer's Ed., 1976). Excessive aldosterone causes potassium depletion and sodium retention, which in turn causes increased blood volume and pressure. The amount of hormone secretion caused by the tumor, more than tumor size, is key to the problem's severity.

There is a theoretical possibility that the tumor existed at policy inception, 1971. Dr. Khairi stated that the only evidence, which he termed "indirect," of when the tumor started, was a low potassium level. Hypertension (high blood pressure) did not cause the tumor, nor was the tumor a complication of the hypertension. Though the tumor was diagnosed as benign, it was the sole cause of Rozek's then current hypertension, Dr. Khairi believed, based on her response to therapy. Dr. Barnes was to some degree unsure of whether the tumor was the sole cause of the hypertension because of his prior diagnosis that emotional factors were causing the hypertension.

Rozek filed a claim for the cost of the surgery. American Family denied the claim. Rozek sued, seeking the policy limit; American Family counterclaimed for declaratory relief. After some discovery, including the two doctors' depositions, American Family moved for summary judgment. The trial court granted the motion. Rozek appeals.

We reverse.

As in most summary judgment cases, our immediate focus is upon the standard for summary judgment. Summary judgment may be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law of law. Indiana Rules of Procedure, Trial Rule 56(C). Factual materiality is defined functionally: does it aid in proving or disproving an essential element of a claim or an affirmative defense? See Delk v. Board of Commissioners of Delaware County (1987) 2d Dist. Ind.App., 503 N.E.2d 436, 439. Even if there is no core factual issue, summary judgment is nevertheless inappropriate if one may draw conflicting inferences from the undisputed facts. Also, it is necessary for the moving party to show the absence of any genuine issue of material fact, and all doubts and inferences are resolved against the moving party. Powell v. Dawson (1984) 2d Dist. Ind.App., 469 N.E.2d 1179, 1181. The non-moving party is entitled to a liberal construction of all pleadings, affidavits and testimony. Bell v. Northside Finance Corp. (1983) Ind., 452 N.E.2d 951, 953. ...


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