Walsh v. Prudential Insurance Co. of America , 101 A.D.2d 988 ( 1984 )

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered April 18,1983 in Franklin County, upon a decision of the court at Trial Term (Viscardi, J.), without a jury. 11 At issue on this appeal is whether the trial court properly found that defendant insurer should be equitably estopped from denying reimbursement to plaintiff, its insured under a group medical insurance policy, for certain payments made by plaintiff for health care services rendered to his wife. We conclude that the trial court did err in so finding and reverse the judgment entered in favor of plaintiff. 1 Plaintiff submitted to defendant numerous medical bills incurred on behalf of his wife, who had been severely injured in an automobile accident. The services for which plaintiff sought reimbursement included around-the-clock care in plaintiff’s home rendered to plaintiff’s wife by unlicensed personnel. Defendant paid the majority of plaintiff’s claim, but rejected the portion concerning the home care rendered by unlicensed personnel on the ground that the policy did not cover unlicensed home care unless certain conditions had been met, which were not met in this case. Plaintiff then commenced this action, and the trial court concluded that although defendant had reimbursed plaintiff for all expenses covered by the policy,, it should be estopped from denying coverage for the home care services. The estoppel was grounded upon the numerous communications with defendant initiated by plaintiff concerning the mounting medical expenses being incurred by his wife and defendant’s failure to advise plaintiff that it would pay for licensed nursing care at home, but not home care by unlicensed personnel. H Plaintiff’s complaint asserts a single cause of action seeking damages for breach of contract and, as noted above, the trial court found that defendant had acted in compliance with the terms of the policy. The record does not reveal that the complaint was amended to add a cause of action based upon equitable estoppel (see Weinberg vD-M Rest. Corp., 53 NY2d 499, 509). In any event, plaintiff’s proof was inadequate to establish that defendant had full knowledge of the true facts surrounding plaintiff’s employment of the unlicensed personnel or that defendant’s conduct caused plaintiff to change his position to his detriment. Significantly, there is nothing in the record to indicate that plaintiff had informed defendant of his use of unlicensed personnel to provide the home care. Nor is there any proof that defendant did anything to lead plaintiff to believe that there was coverage when, in fact, the policy provided no coverage. Accordingly, the elements necessary to invoke the doctrine of equitable estoppel are lacking (see, e.g., Aireo Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 81-82). Defendant did not engage in dilatory tactics which deprived plaintiff of benefits since plaintiff was receiving benefits under the no-fault provisions of his automobile policy until at least January, 1980. Plaintiff’s proof is inadequate to establish defendant’s liability under any theory. 11 Judgment reversed, on the law, with costs, and complaint dismissed. Casey, Weiss and Yesawich, Jr., JJ., concur.