| |
|
 |
 |
 |
 |
[97 NY Int. 0225]
Decided
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.
Plaintiff brought this action on behalf of herself and others similarly situated to recover insurance reimbursement forthe cost of surgery related anesthesiologist's services. Defendant insurer contends that such costs cannot be recovered because the parties' insurance contract, which covers the cost of certain medical and surgical care, contains a specific exclusion for "anesthesia." We agree with plaintiff, however, that this exclusion does not unambiguously apply to the medical services associated with the administration of anesthetic agents and could just as readily be construed to exclude only the cost of those agents themselves.
While, as defendant contends, several dictionaries define the term "anesthesia" broadly to mean the entire process of becoming anesthetized, the term has also often been used to refer only to the substance that is administered by an anesthesiologist ( see, e.g., Stanski v Ezersky, 22 AD2d 311, 322; Houck v Sparks, 81 F3d 168; Alston v Howard, 925 F Supp 1034, 1038; Gess v United States, 925 F Supp 1529; Norris v Detrick, 918 F Supp 977, 980 n5; Rathgeber v Kiowa Dist. Hosp., 131 FRD 195, 196; Boswell v Burroughs Wellcome Co., 1997 WL 198746 [Tex Ct App]; Hughes v Bailey, 691 So 2d 359, 360 [La Ct App]; Becker v Halliday, 554 NW2d 67, 68 [Mich Ct App]; Morgan v McPhail, 672 A2d 1359 [Pa Super Ct]; Roberts v Cox, 669 So 2d 633, 640 [La Ct App]; K Mart Corp. V Beall, 620 NE2d 700, 703 [Ind Ct App]; White v Katz, 619 A2d 683, 684 [NJ Super Ct App Div]; Public Health Law § 3380; 11 NYCRR 52.6; Ark Code Ann § 5 60 116[b][2]; Conn Gen Stat § 21a 280; Mich Comp Laws § 752.272; NH Rev Stat Ann §644:5 a).
Moreover, none of the other provisions in the parties' insurance contract serves to clarify the ambiguity inherent in the use of the term "anesthesia." Defendant relies on the separate policy exclusion for "inpatient drugs or supplies," arguing that that exclusion would render the "anesthesia" exclusion redundant if the latter were interpreted narrowly to encompass only the substances used to anesthetize surgical patients. However, the provision appears to exclude only the cost of those "inpatient drugs or supplies" that are "normally included in a hospital's" charges. [n.1] Thus, although there may be some overlap, plaintiff's proposed interpretation of the "anesthesia" exclusion would not render it redundant in cases like plaintiff's involving drugs and supplies provided by an independent anesthesiologist. Further, to the extent that the "in patient drugs or supplies" exclusion is construed to encompass all in patient drugs and supplies, it would also render redundant the policy's separate exclusion for the costs associated with blood and blood plasma. Hence, defendant's effort to rule out plaintiff's proferred interpretation by reference to other policy provisions is unpersuasive.
Finally, a reading of the remainder of defendant'spolicy reveals a number of specifically worded exclusions for the cost of such enumerated professional services as podiatry, chiropractic and cosmetic surgery. The absence of any similarly worded exclusion for anesthesiologists' services could reasonably be understood as meaning that such fees are, in fact, reimbursable.
In short, it cannot be said that defendant satisfied its burden of demonstrating that the proposed exclusion for anesthesiologists' services is "stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" ( Continental Cas. Co. v Rapid American Corp., 80 NY2d 640, 652; see, Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). Accordingly, defendant has not established its entitlement to an order dismissing the complaint.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and order of Supreme Court, New York County, reinstated, in a memorandum. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.
Decided