Dawn M. Jones v. Golden Rule Insurance Company ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13952
________________________
D.C. Docket No. 1:16-cv-03678-WSD
DAWN M. JONES,
Plaintiff - Appellant,
versus
GOLDEN RULE INSURANCE
COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 23, 2018)
Before MARTIN, JULIE CARNES, and GILMAN,∗ Circuit Judges.
GILMAN, Circuit Judge:
∗
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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Dawn M. Jones obtained a short-term health-insurance policy (the Policy)
from Golden Rule Insurance Company (Golden Rule) in June 2014. Shortly after
the Policy’s effective date, Jones was diagnosed with breast cancer. Golden Rule
denied coverage for her breast-cancer treatment under the Policy’s preexisting-
condition provision because Jones had received a routine screening mammogram
prior to the effective date that, although inconclusive, ultimately led to her breast-
cancer diagnosis.
The district court granted summary judgment for Golden Rule based on two
different prongs of the Policy’s definition of the term “preexisting condition.” We
conclude that one of those prongs is inapplicable in this case by its plain terms as
applied to the uncontested facts. The other prong we find ambiguous and, because
a plausible reading of that prong would result in coverage for Jones’s treatment, we
REVERSE and REMAND with instructions for the district court to grant
summary judgment in favor of Jones on her breach-of-contract claim and for any
further proceedings not inconsistent with this opinion.
I. BACKGROUND
A. Factual background
1. Jones was diagnosed with breast cancer shortly after
obtaining a short-term health-insurance policy from Golden
Rule.
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The facts of this case are not in dispute. Jones, a former attorney at King &
Spalding LLP, gave her employer 30 days’ notice on April 1, 2014, that she
intended to leave the firm to start her own law practice. Rather than temporarily
assuming the full cost of her employer-subsidized health insurance, as is permitted
by the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C.
§ 1161(a), Jones elected instead to purchase a cheaper short-term health-insurance
policy from Golden Rule to provide coverage during her job transition. Jones
submitted an application for the Policy on June 25, 2014, and it took effect the
following day.
Jones received routine screening mammograms around the same time each
year as part of her annual physical checkup. As it so happened, Jones underwent
her 2014 screening mammogram on April 16 while still covered by her King &
Spalding insurance. Jones was not aware of any pain, lumps, or other symptoms of
breast cancer at the time of her annual mammogram.
Although Jones typically received her mammogram results within a month
of the procedure, she was unable, for reasons that are not explained in the record,
to promptly obtain the results from the April 2014 mammogram. Knowing that her
King & Spalding insurance would lapse at the end of April, Jones began calling the
provider that performed her mammogram, Emory Adventist Hospital (Emory), the
week after her procedure to confirm that she did not require a follow-up
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mammogram. Emory informed Jones that her mammogram results were not yet
available. Despite several subsequent calls, Jones was unable to obtain the results
of her procedure, so she visited Emory in person on July 14, 2014, and finally read
the report that had been written in May by her radiologist, Amanda Bauer, M.D.
The report made the following observations:
FINDINGS: The breast tissue is heterogeneously dense (BI-RADS
Type III Density). The breast has more areas of fibrous and glandular
tissue (from 51 to 75%) that are found throughout the breast. This can
make it hard to see small masses (cysts or tumors). Linearly
distributed calcifications are noted in the right axillary tail posteriorly.
No dominant masses, calcifications, or indirect signs of malignancy
are identified in the left breast.
IMPRESSION:
1. Incomplete: Need additional evaluation (BIRADS 0)
RECOMMENDATION: Spot magnification views in the right XCCL
and right ML should be performed. Additionally, possible right breast
ultrasound should be performed.
In layman’s terms, the report recommended “a repeat mammogram and possible
ultrasound.”
Following the report’s recommendations, Jones received a second
mammogram that same day. The July 14 mammogram revealed an “irregular”
“[m]ass with calcifications span[ning] 3 cm in the right axillary tail.” Because Dr.
Bauer deemed the results of this second mammogram “[s]uspicious,” she
recommended an “[u]ltrasound-guided core biopsy of the mass.” The subsequent
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biopsy, performed on August 4, 2014, resulted in a diagnosis of cancer in Jones’s
right breast. Jones thereafter underwent treatment for the condition, the cost of
which was billed to Golden Rule.
2. Golden Rule refused to cover Jones’s breast-cancer treatment
because of the Policy’s preexisting-condition coverage
exclusion.
Upon being billed for Jones’s breast-cancer treatment, Golden Rule initiated
a review of Jones’s medical records to determine whether her condition fell within
§ 12 of the Policy, which excludes coverage for preexisting conditions. Section 5
of the Policy defines a “preexisting condition” as a condition
(A) For which medical advice, diagnosis, care, or treatment was
recommended or received within the 60 months immediately
preceding the date the covered person became insured under
this policy;
(B) That, in the opinion of a qualified doctor,
(1) Began prior to the date the covered person became
insured under this policy; or
(2) Manifested symptoms that would have caused an
ordinarily prudent person to seek medical advice,
diagnosis, care, or treatment within the 60 months
immediately preceding the date the covered person
became insured under this policy; or
(C) A pregnancy existing on the effective date of coverage.
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The Policy defines the term “doctor” as “a duly licensed practitioner of the medical
arts . . . currently licensed by the state in which the services are provided.” All of
the medical care relevant to this case took place in the state of Georgia.
Golden Rule retained Michael Dubois, M.D., a doctor licensed in the state of
Indiana, but not in Georgia, as a consultant who rendered medical opinions
relevant to insurance coverage. In December 2014, Dr. Dubois issued an opinion
that Golden Rule could deny coverage to Jones under § (B)(1) of the Policy’s
preexisting-condition definition because he concluded that her cancer began prior
to the Policy’s effective date. He further opined that Golden Rule could deny
coverage based on § (A) of the Policy’s preexisting-condition definition because
Jones’s April 2014 mammogram “constitutes medical advice, diagnosis, care, or
treatment within the 60 months immediately preceding” the Policy’s effective date.
On the basis of Dr. Dubois’s opinion, Golden Rule denied Jones coverage for her
breast-cancer treatment.
B. Procedural background
Jones timely filed suit in the United States District Court for the Northern
District of Georgia based on the diversity of citizenship between the parties. See
28 U.S.C. § 1332. She alleged that Golden Rule had committed (1) a breach of
contract, (2) a breach of its duty of good faith and fair dealing, and (3) statutory
and common-law bad faith by denying her coverage. Based on those allegations,
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Jones seeks contract and/or statutory damages, punitive damages, and attorney’s
fees.
Golden Rule moved for summary judgment, arguing that Dr. Bauer’s May
2014 report contained “medical advice,” recommended “care,” or itself constituted
“care” for Jones’s breast cancer. Accordingly, Golden Rule contended that its
denial of coverage was justified under § (A) of the preexisting-condition definition.
The district court granted Golden Rule’s motion, but based its decision on different
reasoning. Jones v. Golden Rule Ins. Co., 275 F. Supp. 3d 1361, 1372 (N.D. Ga.
2017).
First, the district court held that § (A) of the policy’s preexisting-condition
definition justified Golden Rule’s denial of coverage because Dr. Bauer’s report
constituted a recommendation to get a “diagnosis” of Jones’s breast cancer. Id. at
1368. Second, although Golden Rule did not move for summary judgment based
on § (B)(1) of the preexisting-condition definition, the court held that that prong
also justified the insurance company’s denial of coverage by inferring that the
calcifications identified by Dr. Bauer in the April 2014 mammogram establish that
Jones’s cancer was present prior to the Policy’s effective date. Id. at 1371–72.
This timely appeal followed.
II. ANALYSIS
A. Standard of review
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We review de novo a district court’s grant of summary judgment. Strickland
v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). Summary judgment is
appropriate if there is no genuine dispute regarding any material fact and if the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In
conducting this review, we view all the evidence and draw all reasonable factual
inferences in favor of the nonmoving party. Strickland, 592 F.3d at 1154.
B. Georgia contract law
The parties agree that Georgia law governs this contract dispute. As with
other contracts, the construction and interpretation of an insurance policy is a
question of law for the court to decide. Haulers Ins. Co. v. Davenport, 810 S.E.2d
617, 619 (Ga. Ct. App. 2018). Ordinary rules of contract construction govern the
interpretation of an insurance contract. Id. “Where the contractual language is
explicit and unambiguous, ‘the court’s job is simply to apply the terms of the
contract as written, regardless of whether doing so benefits the carrier or the
insured.’” Ga. Farm Bureau Mut. Ins. Co. v. Smith, 784 S.E.2d 422, 424 (Ga.
2016) (quoting Reed v. Auto-Owners Ins. Co., 667 S.E.2d 90, 92 (Ga. 2008)).
But “[w]here a term of a policy of insurance is susceptible to two or more
constructions, even when such multiple constructions are all logical and
reasonable, such [a] term is ambiguous and will be strictly construed against the
insurer as the drafter and in favor of the insured.” Federated Mut. Ins. Co. v.
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Ownbey Enters., Inc., 627 S.E.2d 917, 921 (Ga. Ct. App. 2006) (quoting Ga. Farm
Bureau Mut. Ins. Co. v. Meyers, 548 S.E.2d 67, 69 (Ga. Ct. App. 2001)); see also
Ga. Code Ann. § 13-2-2(5) (“If the construction [of a contract] is doubtful, that
which goes most strongly against the party executing the instrument or undertaking
the obligation is generally to be preferred . . . .”).
C. Golden Rule cannot deny coverage for Jones’s breast-cancer treatment
based on the Policy’s preexisting-condition definition.
1. No “qualified doctor” has rendered an “opinion” that would
allow Golden Rule to deny coverage to Jones under § (B)(1)
of the Policy’s preexisting-condition definition.
Section (B)(1) of the Policy’s preexisting-condition definition excludes
coverage for conditions “[t]hat, in the opinion of a qualified doctor, . . . [b]egan
prior to” the Policy’s effective date on June 26, 2014. The Policy defines the term
“doctor” as “a duly licensed practitioner of the medical arts . . . currently licensed
by the state in which the services are provided.” Fortunately for Jones and
unfortunately for Golden Rule, Dr. Dubois is not licensed in the state of Georgia,
where Jones was diagnosed and treated.
Notwithstanding the fact that Dr. Dubois does not meet the Policy’s
definition of a “doctor,” the district court held that § (B)(1) nevertheless excludes
coverage for Jones’s breast-cancer treatment because the doctors who performed
Jones’s mammograms and biopsy and diagnosed her breast cancer were licensed in
Georgia. Jones, 275 F. Supp. 3d at 1372. Inferring that “the breast abnormality
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identified [by the April 2014 mammogram] ultimately was diagnosed by a
qualified doctor as breast cancer,” the court found that § (B)(1) applied to Jones’s
treatment. Id. at 1371.
The district court’s inference is not an implausible one, but it does not
change the fact that none of the doctors who diagnosed and treated Jones’s breast
cancer rendered any opinion that appears in the record as to when the condition
began. Because the court’s inferential reasoning cannot substitute for the
“opinion” by a “qualified doctor” that § (B)(1) calls for, Golden Rule cannot deny
coverage to Jones based on that subsection of the preexisting-condition definition.
2. Section (A) of the Policy’s preexisting-condition
definition is ambiguous and must be construed in
Jones’s favor.
The district court also held that Golden Rule could deny coverage for
Jones’s breast-cancer treatment based on § (A) of the Policy’s preexisting-
condition definition because Dr. Bauer’s report issued after Jones’s April 2014
mammogram “‘recommended’ medical ‘diagnosis’ ‘for’ what ultimately was
diagnosed as breast cancer.” Jones, 275 F. Supp. 3d at 1368. Jones argues that the
contractual terms “diagnosis,” “recommended,” and “for” are all ambiguous and
can be reasonably construed in a manner that would require coverage for her
breast-cancer treatment. Golden Rule argues that Jones failed to raise this
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argument below and therefore forfeited the issue on appeal. Regardless, the
insurance company maintains that § (A) is unambiguous and precludes coverage.
a. Jones raised below the ambiguity of § (A).
Before the district court, Jones argued that § (A) was ambiguous because
§§ (A) and (B)(1) could be read either conjunctively or disjunctively. Golden Rule
contends that Jones forfeited the right to raise any other ambiguities in § (A) on
appeal. But Jones also put forth below her interpretation of the key undefined
terms in § (A), including the words “diagnosis” and “recommended.” Jones
continues to press her interpretation of those terms on appeal.
“‘[P]arties are not limited to the precise arguments that they made below’”
and may present a new argument on appeal “to support what has been [a]
consistent claim.” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379
(1995) (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)). Jones’s consistent
claim has been that § (A) of the Policy’s preexisting-condition definition, by its
terms, does not bar coverage for her breast-cancer treatment. To the extent that
Jones’s analysis of § (A)’s key terms is any different on appeal, she is simply
making a new argument in further support of her consistent claim that she is
entitled to reimbursement from Golden Rule for the medical care that she received.
We therefore find no forfeiture of this issue on appeal.
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b. “Diagnosis” is ambiguous as used in § (A).
The district court acknowledged that the term “diagnosis” could refer to
either (1) “a diagnostic procedure,” or (2) “a diagnostic conclusion.” Jones, 275
F. Supp. 3d at 1368 (quoting LoCoco v. Med. Sav. Ins. Co., 530 F.3d 422, 477 n.1
(6th Cir. 2008)); see also Webster’s Third New International Dictionary 622
(2002) (defining the term “diagnosis” as “the art or act of identifying a disease
from its signs and symptoms” and as “the decision reached” through diagnostic
procedures). But the court held that the term “diagnosis” as used in § (A) could
not mean a “diagnostic conclusion” because “[i]t would be unnatural to read the
policy as contemplating that a diagnostic result be ‘recommended.’” Jones, 275
F. Supp. 3d at 1368 (quoting LoCoco, 530 F.3d at 477 n.1). The dissent agrees
with the district court’s analysis based on its observation that no grammatical
“article” appears before the word “diagnosis” in § (A). Dissent at 31–34. Despite
the dissent’s impressive explanation regarding the complexities of English
grammar, we find that the meaning of the word “diagnosis” in § (A) is at best
ambiguous. And if the Policy’s language is ambiguous, Golden Rule loses. See
Federated Mut. Ins. Co. v. Ownbey Enters., Inc., 627 S.E.2d 917, 921 (Ga. Ct.
App. 2006).
To start with, reading the word “diagnosis” to solely mean a “diagnostic
procedure” is incompatible with the overall structure of the Policy’s preexisting-
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condition definition. Whereas § (B)(1) of the definition covers unknown
conditions that existed prior to the Policy’s effective date, § (A) covers conditions
that were in some way known to the insured on the effective date. Our conclusion
about §§ (A) and (B)(1)’s differing structural roles within the preexisting-condition
definition is reinforced by the fact that § (B)(2), which is not at issue in this case,
covers conditions that “in the opinion of a qualified doctor[,] . . . [m]anifested
symptoms [prior to the effective date] that would have caused an ordinarily
prudent person to seek medical advice, diagnosis, care or treatment.” This
provision is presumably intended to exclude coverage for conditions about which
the insured remained willfully ignorant.
Viewing the definition of a “preexisting condition” as a whole, each section
and subsection thus appears to cover different gradations of knowledge that an
insured might possess with regard to a preexisting condition. The structure of the
preexisting-condition definition cannot be explained, as the dissent suggests, by a
simple dichotomy based on whether a doctor has reviewed the condition in
question. Dissent at 31. Otherwise, there would be no need for § (B) to be split
into separate subsections.
With the overall structure of the preexisting-condition definition in mind, a
condition for which a diagnostic procedure has been recommended but not yet
received is not yet a known condition. Interpreting the term “diagnosis” as used in
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§ (A) to mean a “diagnostic procedure” thus stretches that prong of the preexisting-
condition definition to reach conditions that more logically fall under § (B)(1).
Along similar lines, the other terms that surround the word “diagnosis” in
§ (A) refer to medical procedures that are applied to known conditions. “Advice,”
for example, means “an opinion or recommendation offered as a guide to action,
conduct, etc.” or a “[r]ecommendation regarding a decision or course of conduct;
specif[ically], that of professional counsel.” Bergan v. Time Ins. Co., 395 S.E.2d
361, 363 (Ga. Ct. App. 1990) (first alteration in original) (quoting Random House
Dictionary of the English Language (2d ed. 1987) and Webster’s New
International Dictionary (2d ed. 1961)). The words “care” and “treatment”
similarly “refer to something done in the application of the curative arts, whether
by drugs or other therapy, with the end in view of alleviating a pathological
condition.” Mut. Life Ins. Co. of N.Y. v. Bishop, 209 S.E.2d 223, 225 (Ga. Ct. App.
1974).
Although doctors assign a “diagnostic conclusion” to a known condition,
they order a “diagnostic procedure” for unknown ones. The linguistic canon of
noscitur a sociis stands for the proposition that “[w]ords, like people, are judged by
the company they keep.” Anderson v. Se. Fidelity Ins. Co., 307 S.E.2d 499, 500
(Ga. 1983). Because the words that surround “diagnosis” in § (A) refer to medical
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procedures applied to known conditions, we conclude that the better reading of the
word “diagnosis,” in context, is a “diagnostic conclusion.”
The dissent faults us for relying on Bergen’s definition of the term “advice”
without paying proper heed to the facts of that case. Dissent at 35–36. In Bergen,
a patient visited her doctor prior to her insurance policy’s effective date because of
symptoms of what she believed to be a bladder infection. 395 S.E.2d at 362.
Upon examining the patient, the doctor discovered a pelvic mass and advised the
patient to get an ultrasound and see a gynecologist. Id. Subsequent evaluation led
to a diagnosis of ovarian cancer. Id. The Bergen court approved the insurer’s
denial of coverage based on a preexisting-condition definition that was similar to
§ (A) (but which lacked analogues to §§ (B)(1) or (B)(2)) because the first doctor
who evaluated the patient “‘advised’ her to see a gynecologist and to have an
ultrasound examination.” Id. at 363.
According to the dissent, these facts show that “advice” can be given
concerning an unknown condition. Dissent at 35. But the patient in Bergen sought
medical evaluation for a known condition, albeit one that she inaccurately
self-diagnosed as a bladder infection. Id. at 362. Jones, in contrast, had no inkling
that anything was medically amiss when she went in for her routine screening
mammogram in April 2014. And although that screening mammogram identified
calcifications that are sometimes associated with breast cancer, a follow-up
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mammogram might very well have revealed that those calcifications were
completely benign.
There is also no grammatical reason why the word “recommended” must
necessarily be read in conjunction with the word “diagnosis” as the district court
did. See Jones, 275 F. Supp. 3d at 1368. The words “recommended” and
“received” both make perfect sense when coupled with the words “care” or
“treatment.” So even if the court is correct that a “diagnostic result” cannot
logically be “recommended,” id., the word is not robbed of all meaning or utility in
the sentence as a whole.
Indeed, coupling “recommended” with the word “advice” makes even less
sense than pairing it with the word “diagnosis.” The Georgia courts have defined
the word “advice” as “an opinion or recommendation offered as a guide to action,”
so “advice” as used in § (A) can only be “received,” not “recommended,” without
introducing a redundancy into the sentence. See Bergan, 395 S.E.2d at 363(quoting Random House Dictionary of the English Language (2d ed. 1987)).
Accordingly, the district court’s definition of the word “diagnosis” does not
eliminate the linguistic problem that the court itself introduced by insisting that
both “recommended” and “received” must apply to all four of the predicate words
in the sentence. The better reading, therefore, is that the term “recommended”
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does not apply to either the words “advice” or “diagnosis” and thus does not
eliminate one of the two plausible definitions for “diagnosis.”
The dissent takes issue with this reading of the definition in two respects. It
first argues that a canon of statutory interpretation dictates that the terms
“recommended” and “received” both be read as applicable to all of the terms in the
list that they follow. Dissent at 36–37. But the cases on which the dissent relies
for that proposition involve singular phrases interpreted in conjunction with a
preceding list, not a phrase like “recommended or received” that includes two
terms separated by the disjunctive “or.” See Porto Rico Ry., Light & Power Co. v.
Mor, 253 U.S. 345, 348 (1920) (reading the term “not domiciled in Porto Rico” in
conjunction with a preceding list); United States v. McDaniel, 631 F.3d 1204, 1209
(11th Cir. 2011) (reading the term “proximate result” in conjunction with a
preceding list). An interpretation of the preexisting-condition definition at issue
here does not violate the canon that the dissent references so long as each term that
precedes the phrase “recommended or received” has meaning when combined with
one of those two words.
The dissent also disagrees that reading the term “recommended” in
conjunction with “advice” creates a redundancy in § (A), reasoning that the
combination of those terms avoids the possibility of a patient attempting to
circumvent the preexisting-condition provision by claiming that she had not
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“received” “advice” memorialized in a letter. Dissent at 36–38. But a doctor
“gives” advice when she memorializes it in a letter; she does not “recommend” it.
The dissent’s explanation thus does not rectify the redundancy that is introduced
into the preexisting-condition definition by insisting that all of the predicate words
in § (A) be given meaning when combined with the word “recommended.”
In any event, Jones has offered a definition of the word “recommended” that
fits with the “diagnostic conclusion” definition of “diagnosis.” She points out that
“recommend” can mean “to mention or introduce as being worthy of acceptance,
use, or trial.” Webster’s Third New International Dictionary 1897 (2002). A
doctor might thus put forward a “diagnostic conclusion” as “worthy of acceptance”
before it is officially confirmed. If, for example, a doctor identifies a suspicious
mass during a physical examination or on a mammogram, she might propose
cancer as a provisional diagnosis that could be confirmed only with a biopsy. In
that sense, a prebiopsy medical report that specifically identifies cancer as the
suspected cause of observed symptoms can be said to contain a “recommended”
diagnostic conclusion.
Moreover, had Golden Rule intended § (A) to exclude coverage when a
preapplication diagnostic procedure or screening ultimately reveals a pathological
condition, it could have done so explicitly. For example, Golden Rule could have
provided something to the effect that “any diagnostic procedure or screening
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undergone by the insured within 60 months prior to coverage that results in
medical care or treatment during the term of the Policy will be considered a
preexisting condition.” But Golden Rule did not so provide, and we render no
judgement on whether such a broad preexisting-condition provision would be
enforceable.
In sum, we conclude that “diagnostic conclusion” is a plausible definition of
the word “diagnosis” as used in § (A) of the Policy’s preexisting-condition
definition. It might even be a better definition of the term than “diagnostic
procedure” given § (A)’s purpose within the provision’s overall structure of
excluding known conditions from coverage. And because the phrase “diagnostic
conclusion” is one of two plausible definitions of the term “diagnosis,” and the one
that favors Jones, we must adopt that definition in construing § (A). See Federated
Mut. Ins. Co. v. Ownbey Enters., Inc., 627 S.E.2d 917, 921 (Ga. Ct. App. 2006).
3. Golden Rule cannot deny Jones coverage based on § (A) of
the Policy’s preexisting-condition definition.
Jones’s April 2014 mammogram was the only medical procedure related to
her ultimate diagnosis and treatment for breast cancer that she received prior to the
Policy’s effective date on June 26, 2014. Dr. Bauer’s report that memorializes the
results of that procedure contains no diagnostic conclusion. Indeed, it could not
have because, according to Dr. Dubois’s deposition testimony, a final diagnosis of
cancer is not possible until a biopsy is conducted. Nor did Dr. Bauer offer any
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provisional diagnosis as “worthy of acceptance” because her report does not even
mention the word cancer. See Webster’s Third New International Dictionary 1897
(2002). To the extent, therefore, that § (A) can be read to exclude coverage based
on a recommended “diagnostic conclusion” of breast cancer, Dr. Bauer’s report
contains no such recommendation.
Moreover, even if the term “diagnosis” were deemed to unambiguously
mean “diagnostic procedure,” the mammogram that Jones underwent in April 2014
was solely for screening purposes, not for what one would fairly characterize as a
diagnostic procedure intended to ascertain an unknown “condition.” The term
“condition” is not defined in the Policy, but the most applicable dictionary
definition of the word is “the physical status of the body as a whole . . . or one of
its parts—usu[ally] used to indicate [an] abnormality.” Webster’s Third New
International Dictionary 473 (2002).
Dr. Bauer recommended follow-up procedures after the April 2014
mammogram not because she had identified a medical ailment or abnormality, but
simply because the density of Jones’s breast tissue made it “hard to see” any
“small masses (cysts or tumors)” that might have been present and because of
“[l]inearly distributed calcifications” in Jones’s right breast. Dr. Dubois testified in
his deposition that calcifications “suggest[] the possibility of cancer” and are
“related to the metabolism of . . . cancer” in the same way “that pain would be part
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of a bone fracture.” But he acknowledged that calcifications do not necessarily
indicate the presence of cancer and can appear “in normal breasts,” i.e., breasts that
are unaffected by any “condition.”
4. Golden Rule failed to renew its argument that Dr. Bauer’s
report contained “medical advice,” recommended “care,” or
itself constituted “care.”
In its motion for summary judgment, Golden Rule argued that § (A) of the
Policy’s preexisting-condition definition authorized its denial of coverage because
Dr. Bauer’s report contained “medical advice” or a recommendation that Jones
receive “care” in the form of a follow-up mammogram. The motion further
contended that the April 2014 mammogram and its associated report themselves
constituted medical “care.” Golden Rule does not renew those arguments on
appeal, instead defending the district court’s alternative bases for granting
summary judgment in its favor.
An appellee’s “failure to brief [an] issue abandons it for the purposes of th[e]
appeal.” Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1564 n.16
(11th Cir. 1995); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
680–83 (11th Cir. 2014) (deeming a party’s failure to address the alternative
grounds on which a district court based its judgment as an abandonment of any
argument concerning those alternative holdings).
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Golden Rule attempted during oral argument to resuscitate the arguments
that it had made below in support of its motion. But such a belated attempt to raise
an argument does not alter the abandonment analysis. See Edwards v. Niagara
Credit Sols., Inc., 584 F.3d 1350, 1352 n.2 (11th Cir. 2009) (holding that a party
had abandoned an argument that it made before the district court by failing to
renew the argument in its initial brief on appeal). Accordingly, Golden Rule has
abandoned any alternative arguments for why § (A) of the Policy’s preexisting-
condition definition authorizes the company’s denial of coverage for Jones’s
breast-cancer treatment.
But even if Golden Rule had preserved its argument that Jones had received
“medical advice” in April 2014, it would not have prevailed on that theory for the
two reasons discussed above. The first is that the facts of this case are clearly
distinguishable from those in Bergen because Jones, unlike the patient in that case,
did not seek medical evaluation for any symptoms. 395 S.E.2d 361, 362 (Ga. Ct.
App. 1990). Second, and relatedly, the advice that she received concerned
calcifications that are a potential indicator of cancer, but that are often benign, and
cannot in and of themselves be fairly considered a “condition.” Accordingly, this
argument would have fared no better than the arguments that Golden Rule properly
raised on appeal.
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The heart of Golden Rule’s problem in this case is that Jones had no
“condition” when she had her mammogram in April 2014 “[f]or which medical
advice, diagnosis, care, or treatment was recommended or received.” She simply
had her annual routine-screening mammogram at a time when she exhibited no
signs or symptoms of breast cancer. Because Jones had no knowledge of any
“condition” (i.e., abnormality) for which she was seeking “advice, diagnosis, care,
or treatment” prior to the effective date of the Policy, she is entitled to coverage.
D. Entry of judgment for Jones is proper.
Despite the absence of any factual disputes in this case, Jones did not file a
cross-motion for summary judgment below. Nevertheless “it is occasionally
proper for an appellate court to enter summary judgment for the non-moving party
. . . in the rare case in which it is very clear that all material facts are before the
reviewing court.” E.C. Ernst, Inc. v. Gen. Motors Corp., 537 F.2d 105, 109 (5th
Cir. 1976) (as a pre-1981 5th Circuit decision, Ernst is binding precedent in our
circuit per Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981)); see also Nozzi v.
Hous. Auth. of City of L.A., 806 F.3d 1178, 1199–1200, 1204 (9th Cir. 2015)
(reversing the district court’s grant of summary judgment in favor of the appellee
and remanding with instructions to enter judgment for the nonmoving party);
Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014) (en banc) (same); Ortega
Candelaria v. Orthobiologics LLC, 661 F.3d 675, 681 n.10 (1st Cir. 2011) (“Even
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in the absence of a cross-motion for summary judgment, we may nostra sponte
grant partial summary judgment to the non-moving party provided that ‘both sides
have had an opportunity to present evidence, the facts are uncontroverted, and the
proper disposition is clear.’” (quoting Garner v. Memphis Police Dep’t, 8 F.3d
358, 366 (6th Cir. 1993))). And in reviewing a district court’s sua sponte entry of
judgment, this court has held that “where a legal issue has been fully developed,
and the evidentiary record is complete, summary judgment is entirely appropriate
even if no formal notice has been provided.” Artistic Entm’t, Inc. v. City of
Warner Robins, 331 F.3d 1196, 1202 (11th Cir. 2003) (per curiam).
We note that the dissent disagrees with our grant of summary judgment to
Jones, stating that we have offered no explanation for why the record demonstrates
that she is entitled to coverage. Dissent at 41. But Golden Rule has had every
incentive to raise any and all legal arguments that could support the district court’s
grant of summary judgment in its favor. The evidentiary record is fully developed,
and no genuine disputes of material fact exist. Yet Golden Rule has failed to put
forth any persuasive argument for why the Policy authorized its denial of coverage.
Given the fairly long lineage of this case, the absence of factual disputes,
and Golden Rule’s failure to assert any other reason besides the preexisting-
condition provision for the denial of coverage, we do not believe that a remand of
Jones’s breach-of-contract claim serves either the principle of judicial economy or
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the rendering of a just result. Accordingly, we direct the district court nostra
sponte to grant summary judgment in Jones’s favor on her breach-of-contract
claim.
III. CONCLUSION
Golden Rule wrongly denied coverage for Jones’s breast-cancer treatment.
It has submitted no opinion from a qualified doctor, as defined by the policy, that
concludes that her breast cancer began prior to the Policy’s effective date.
Moreover, Golden Rule has submitted no evidence that Jones had any “condition”
for which a diagnosis procedure was “recommended” prior to the Policy’s effective
date. The district court accordingly erred in granting summary judgment for
Golden Rule. For all of these reasons, we REVERSE and REMAND with
instructions for the district court to grant summary judgment in favor of Jones on
her breach-of-contract claim and for any further proceedings not inconsistent with
this opinion.
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JULIE CARNES, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority’s decision to reverse the district court’s order to
the extent that the latter grants summary judgment to Golden Rule based on § 5(B)
of the policy. Under that provision, one basis for finding that an insured had a
disqualifying preexisting condition is the opinion of a qualified doctor that the
insured’s condition began prior to the date of coverage. Although Golden Rule
proffered such an opinion from its doctor, the doctor was not licensed in the State
of Georgia and hence could not count as a qualified doctor for purposes of this
provision of the policy.
There is, however, a second provision defining a preexisting condition:
§ 5(A). The district court concluded that summary judgment for Golden Rule was
also warranted under this provision. I agree with this part of the district court’s
ruling. But the majority does not, and for this reason I respectfully dissent from
that part of the majority opinion reversing summary judgment based on § 5(A).
Moreover, the majority not only reverses the district court’s grant of
summary judgment, but it also “nostra sponte” awards summary judgment to
Jones—even though Jones never moved for summary judgment before the district
court and even though Jones has never asked us to take this step. I also dissent as
to the majority’s unilateral decision to grant Jones summary judgment.
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I. BACKGROUND
Plaintiff Dawn Jones is a sophisticated litigant, with an impressive resume.
She has a nursing degree from the University of Virginia, a Masters degree in
nursing from Georgetown University, and a law degree from Georgia State
University. Early in her career, she worked for a law firm that handled insurance
defense cases and, for the seven years preceding her purchase of a health insurance
policy with Golden Rule, she worked for a prestigious law firm in Atlanta on tort
litigation.
But in April 2014, she decided to strike out on her own and begin the solo
practice of law. She gave her 30-day notice on April 1 and left the firm at the end
of the month. During her tenure with the firm, she had an employer-sponsored
health insurance policy. She could have continued with that policy under
COBRA1 after leaving the firm, but she declined to do so because of how
expensive she thought the premiums would be. Instead, she began a search for a
more affordable short-term policy. And she found one: a health care policy with
Golden Rule that carried a premium of only $112 a month. But of course there is
no free lunch, and along with that relatively inexpensive premium came a very
tough preexisting-condition exclusion.
1
Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82(codified at 29 U.S.C. §§ 1161–1168). Under COBRA, the former employee is required to pay
both her and her former employer’s portion of the premium.
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Prior to signing on with Golden Rule, however, and while still employed
with her law firm and under the firm’s health insurance plan, Jones underwent a
routine screening mammogram on April 16, 2014, administered by Dr. Amanda
Bauer. Two months later, on June 25, 2014, she applied for and obtained a short-
term insurance policy with Golden Rule, with an effective date of June 26, 2014.
At that time, according to Jones’s deposition testimony, she had still not received a
report summarizing the results of her mammogram that had occurred two months
earlier. She testified that she had requested the results of that test from her doctor,
but that despite her efforts she never got a copy of the report prior to applying for
insurance with Golden Rule. Finally, on July 14, a couple of weeks after enrolling
with Golden Rule and now three months after the mammogram, Jones visited Dr.
Bauer’s office in person and obtained a copy of the report, which had been
prepared by Dr. Bauer two months earlier on May 13, 2014.
The report found nothing suspicious in the left breast: “[n]o dominant
masses, calcifications, or indirect signs of malignancy . . . in the left breast.” The
right breast was another matter. The report indicated the finding of “[l]inearly
distributed calcifications” in Jones’s right breast. Ultimately, Dr. Bauer’s
impression was “[i]ncomplete,” and she concluded that Jones “[n]eed[ed]
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additional evaluation (BIRADS 0).”2 Accordingly, Dr. Bauer recommended that
“[s]pot magnification views in the right XCCL and right ML should be performed”
and “possibl[y] [a] right breast ultrasound.”
The same day she obtained the report, July 14, Jones asked for and received
a second mammogram as recommended in Dr. Bauer’s report. This second
mammogram, which was coded as a “Mammogram Diagnostic Digital,” revealed
an irregular mass in Jones’s right breast. The diagnostic report indicated that there
was a high suspicion of breast cancer, and the doctor recommended a biopsy. In
August, doctors biopsied the mass and, unfortunately, Jones was diagnosed with
breast cancer. Jones then received surgery, chemotherapy, and other care to treat
her cancer.
As noted, Jones’s policy with Golden Rule (“the Policy”) excludes coverage
for preexisting conditions under § 5(A). Jones submitted the costs for her breast
cancer treatment to Golden Rule. Golden Rule concluded that coverage of Jones’s
breast cancer was excluded under this preexisting-condition exclusion based on the
first mammogram and report. Accordingly, Golden Rule denied coverage of
Jones’s claims.
2
A BIRADS score indicates the level of suspicion of breast cancer. The higher the score, the
greater the suspicion. A BIRADS score of 0 indicates that additional imaging evaluation is
needed.
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II. DISCUSSION
A. The Recommendation of a Diagnostic Procedure by Dr. Bauer
In relevant part, the Policy states:
“Preexisting condition” means a condition:
(A) For which medical advice, diagnosis, care, or treatment
was recommended or received within the 60 months
immediately preceding the date the covered person became
insured under this policy;
(Emphasis in original omitted; emphasis in above text added.) The district court
held that Jones’s breast cancer was excluded under § 5(A) of the Policy as a
preexisting condition because Dr. Bauer recommended that Jones undergo a further
diagnostic procedure to identify the cause of the concerning observations in the
first mammogram—a procedure that ultimately revealed the existence of Jones’s
breast cancer, the condition for which Jones seeks reimbursement. That is, Dr.
Bauer recommended diagnosis of the unknown condition that sadly turned out to
be the cancer at issue here. Like the district court, I conclude that this triggers the
preexisting-condition exclusion in § 5(A).
The majority disagrees, concluding (1) that reading “diagnosis” to mean
diagnostic procedure is inconsistent with the Policy’s structure and (2) that because
the words surrounding “diagnosis” in § (A) apply only to known conditions, so
should “diagnosis.” As to the first point, I disagree that “reading the word
‘diagnosis’ to mean a ‘diagnostic procedure’ is incompatible with the overall
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structure of the Policy’s preexisting-condition definition.” Maj. Op. at 12–13. It is
the majority’s conjecture that § 5(B)—which excludes coverage for any condition
that a qualified doctor opines either began prior to the date the covered person
became insured under the Policy or manifested symptoms that would have caused
an ordinarily prudent person to see a doctor—“covers unknown conditions.” Id. at
13. From that surmise, the majority then jumps to the conclusion that § 5(A) must
then necessarily “cover[] conditions that were in some way known to the insured.”
Id. Yet nowhere does the Policy say such things. Just as plausibly, § 5(A) could
simply cover situations where the insured, whatever his or her state of awareness,
goes to a doctor and § 5(B) those situations where the insured does not, even
though in the latter the insured may know or suspect full well his malady. In fact,
the focus of § 5(B)(2) is on whether or not the insured had symptoms “that would
have caused an ordinarily prudent person to seek medical advice, diagnosis, care,
or treatment”—in other words, whether a reasonable person would have gone to
the doctor. (Emphasis added.) Nothing in § 5(B) has anything to do with the
insured’s knowledge about his condition as the majority insists.
Moreover, in terms of a textual analysis, whether “diagnosis” means
diagnostic procedure or diagnostic conclusion depends upon whether it is used as a
mass noun. “A mass noun (sometimes called a noncount noun) is one that denotes
something uncountable, either because it is abstract {cowardice} {evidence} or
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because it refers to an aggregation of people or things taken as an indeterminate
whole {luggage} {the bourgeoisie}.” Bryan A. Garner, The Chicago Guide to
Grammar, Usage, and Punctuation 22 (2016) (emphasis and brackets in original).
Importantly, “[s]ingular count nouns cannot be used alone. They must have a
determiner.”3 Count Nouns, British Council,
https://learnenglish.britishcouncil.org/ar/english-grammar/count-nouns (last visited
Aug. 8, 2018) (emphasis in original). (E.g., “I bought a/his/that/the dog,” not “I
bought dog.”) Mass nouns, however, “can stand alone {music is more popular
than ever} or with a determiner other than an indefinite article (some music or the
music but generally not a music).” Garner, supra at 22 (emphasis and brackets in
original). And “singular mass nouns don’t take an indefinite article.” Id.
When used as a mass noun, “diagnosis” can mean only diagnostic procedure.
See Diagnosis, Merriam-Webster Learner’s Dictionary,
http://www.learnersdictionary.com/definition/diagnosis (last visited Aug. 14, 2018)
(“[noncount]: the act of identifying a disease, illness, or problem by examining
someone or something * * * [count]: a statement or conclusion that describes the
reason for a disease, illness, or problem” (brackets in original)); see also
Diagnosis, Oxford Living Dictionaries,
3
“Determiners are words which come at the beginning of the noun phrase” that indicate
“whether the noun phrase is specific or general.” Determiners and quantifiers, British Council,
https://learnenglish.britishcouncil.org/ar/english-grammar/determiners-and-quantifiers (last
visited Aug. 14, 2018). Plural count nouns and proper nouns do not require a determiner.
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https://en.oxforddictionaries.com/definition/diagnosis (last visited Aug. 14, 2018)
(distinguishing between “diagnosis” as a mass noun when it refers to “[t]he
identification of the nature of an illness or other problem by examination of the
symptoms” and as a count noun when it refers to a diagnostic result (e.g., “a
diagnosis of Crohn’s disease was made”)).
Here, § 5(A) uses “diagnosis” as a mass noun. Section 5(A) defines
preexisting condition to include any condition “[f]or which . . . diagnosis . . . was
recommended or received.” Section 5(A) uses “diagnosis” as a singular noun and,
because it lacks a determiner, as a singular mass noun meaning diagnostic
procedure. Common sense supports this. When used without a determiner,
“diagnosis” is commonly understood to refer to a diagnostic procedure. For
example, if a doctor says to a patient, “I recommend diagnosis,” the patient would
understand that the doctor was recommending some procedure or testing to
investigate and identify what the patient’s condition is. No one would think that
the doctor was recommending a particular conclusion about what the condition is.
In fact, that’s precisely how the Policy uses the word “diagnosis” in other
sections. Whenever the Policy means diagnostic conclusion, it adds a determiner
and uses “diagnosis” as a count noun. For example, the Policy requires that
medical bills include “the diagnosis for the condition treated.” (Emphasis added.)
And the Policy defines “Medical necessity,” to mean treatment that is
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“[a]ppropriate and consistent with the diagnosis.” (Emphasis added.) But when
the Policy refers to diagnostic procedure, it uses “diagnosis” without any
determiner. For example, the Policy defines “Hospital” as an institution that
“[p]rovides organized facilities and equipment for diagnosis and treatment of acute
medical, surgical, or mental conditions,” and “Telemedicine” as “health care
delivery, diagnosis, consultation, treatment, or transfer of medical data by means of
audio, video, or data communications.” Similarly, the Policy excludes coverage
“[f]or diagnosis or treatment of nicotine addiction.”
Because “diagnosis” as a mass noun unambiguously means only diagnostic
procedure, § 5(A) excludes coverage for Jones’s breast cancer. Dr. Bauer
recommended diagnosis of the calcifications in Jones’s right breast in her May
2014 report, within sixty months of when the Policy became effective on June 26,
2014. And Dr. DuBois gave uncontroverted testimony that those calcifications
were ultimately the same condition as Jones’s breast cancer.4 Thus, Jones’s breast
cancer is “a condition . . . [f]or which . . . diagnosis . . . was recommended . . .
within the 60 months immediately preceding the date” Jones became insured under
the Policy, and is therefore excluded as a preexisting condition under § 5(A).
4
Although Dr. DuBois may not meet the Policy’s definition of “qualified doctor” as needed for
§ 5(B)(1) to apply, he was nevertheless sufficiently qualified to testify as a medical expert.
Indeed, Jones never challenged in the district court Dr. Dubois’s qualifications under Daubert
and offers no facts to show that he is unqualified under Fed. R. Evid. 702. And, at the time Dr.
DuBois offered his opinions in this case, he was a licensed and board-certified doctor, had been
practicing medicine for at least two decades, and had experience reading mammogram reports.
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Second, the majority reasons that because “the other terms that surround the
word ‘diagnosis’ in § (A) refer to medical procedures that are applied to known
conditions,” “diagnosis” must do so as well. Maj. Op. at 14–15. And because
doctors can only “assign a ‘diagnostic conclusion’ to a known condition,”
“diagnosis” has to mean diagnostic conclusion. Id. at 14. To reach this
conclusion, the majority relies on the definition of “advice” from Bergan v. Time
Insurance Company, 196 Ga. App. 78 (1990). 5 Id. at 14 (defining “advice” as
either “an opinion or recommendation offered as a guide to action, conduct, etc.”
or a “[r]ecommendation regarding a decision or course of conduct; specif[ically],
that of professional counsel.” (brackets in original) (quoting Bergan, 196 Ga. App.
at 80)). Notably, nothing in Bergan’s definition of advice suggests that advice can
only be given for known conditions. To the contrary, Bergan squarely held that a
person could receive advice for an unknown condition. The appellant in Bergan
argued “that because [her] disease was not diagnosed prior to commencement of
the policy period, she received no . . . ‘advice’” and her condition was not excluded
under her policy’s preexisting-condition exclusion. 196 Ga. App. at 80. The
Georgia Court of Appeals rejected that contention, as the court held that the
appellant had received “advice” twice: when her first doctor “‘advised’ her to see
a gynecologist and to have an ultrasound examination,” and when her second
5
I agree with the majority that because this is a diversity case, Georgia law governs.
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doctor “‘advised’ further evaluation and treatment of the problem by means of an
exploratory laparotomy.” Id. It was not until after the laparotomy that the
appellant’s condition was identified. Id. at 79.
Indeed, even assuming that “care” and “treatment” apply only to known
conditions (a debatable proposition in itself), “advice” does not. So the noscitur a
sociis canon is not determinative here, as at least one word around “diagnosis”
does not apply only to known conditions.
In further parsing the language of the provision, the majority also concludes
that “the term ‘recommended’ does not apply to either the words ‘advice’ or
‘diagnosis.’” Maj. Op. at 16–17. I must again disagree. The majority asserts that
“there is no grammatical reason why the word ‘recommended’ must necessarily be
read in conjunction with the word ‘diagnosis.’” Id. at 16. But there is: “[w]hen
several words are followed by a clause which is applicable as much to the first and
other words as to the last, the natural construction of the language demands that the
clause be read as applicable to all.” United States v. McDaniel, 631 F.3d 1204,
1209 (11th Cir. 2011) (quoting Porto Rico Ry., Light & Power Co. v. Mor, 253
U.S. 345, 348 (1920)). Turning to the words themselves, the majority concludes
that “advice” can only be “received” because Bergan defined “advice” to include
“an opinion or recommendation offered as a guide to action.” Maj. Op. at 16
(quoting Bergan, 196 Ga. App. at 80). The majority reasons that because the
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definition of “advice” includes the word “recommendation,” it would be redundant
if “advice” could be “recommended.” Id.In doing so, the majority ignores that the meaning of a word is dependent
upon the context in which it is used. See Scrocca v. Ashwood Condo. Ass’n, Inc.,
326 Ga. App. 226, 229 (2014) (“[W]ords are given meaning by their context.”
(internal quotation marks omitted)). Bergan did not define “advice” in the context
of a policy for which advice could be “recommended or received”—the policy in
Bergan excluded coverage only for conditions “for which . . . advice was
received.” 196 Ga. App. at 79. Further, although the majority relied on context to
reach its definition of “diagnosis,” it rejects doing so to define “advice.”
Moreover, the majority ignores the fact that Georgia courts recognize that
“advice” can be “recommended.” In White v. American Family Life Assurance
Company, the Georgia Court of Appeals dealt with a policy that provided coverage
for certain conditions “for which . . . medical advice . . . was recommended or
received.” 284 Ga. App. 58, 62 (2007). Unsurprisingly, the court acknowledged
that conditions would be covered if they were conditions “for which a physician
had recommended or given advice” and met the policy’s other requirements. Id. at
63 (emphasis added).6
6
And it is not just Georgia courts to which I cite. Our sister circuit’s decision in LoCoco v.
Medical Savings Insurance Co., 530 F.3d 442 (6th Cir. 2008) is in harmony with my take on this
case. In LoCoco, the Sixth Circuit addressed a functionally identical provision that excluded
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This makes sense. If a patient sees a doctor for an evaluation and the doctor
later mails the patient his advice on how to treat the condition, the doctor’s letter
can be said to be recommending “advice”; when the patient gets that letter and
reads it, he has received the “advice.” Similarly, the other items listed in § (A)
(“advice,” “care,” and “treatment”) can be both “received” and “recommended.”
The same goes for “diagnosis.” “Diagnosis” can just as easily be “recommended”
as “advice,” “care,” and “treatment” can, as this case illustrates.
Finally, the majority says that even if “diagnosis” unambiguously refers to
diagnostic procedure, then § 5(A) still does not apply because Jones’s April
mammogram was not “a diagnostic procedure intended to ascertain an unknown
‘condition.’” Maj. Op. at 20. But that misframes the issue; the April mammogram
does not have to be, itself, a diagnostic procedure for § 5(A) to apply. Dr. Bauer’s
report just needs to recommend diagnosis. And the report does precisely that: it
“recommended” diagnosis because the report stated that Jones “[n]eed[ed]
additional evaluation” and recommended “[s]pot magnification views in the right
XCCL and right ML should be performed” and “possibl[y] [a] right breast
ultrasound.” In other words, the April mammogram recommended that Jones
undergo diagnostic procedures to identify what her calcifications were.
coverage for any condition “for which medical advice, diagnosis, care, or treatment . . . was
recommended or received.” Id. at 446. The Sixth Circuit held that, although “diagnosis” had
two meanings, the policy at issue “clearly refer[red] to a diagnostic procedure.” Id. at 447 n.1.
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The majority’s additional suggestion that Jones’s calcification were not a
“condition” is similarly unavailing, as the record indisputably establishes that her
calcifications were cancer. Dr. DuBois testified that “the mammogram in April of
2014” indicated that Jones’s doctors “need[ed] more information” about Jones’s
calcifications and that those “calcifications . . . . w[ere] the same condition as the
cancer” Jones was eventually diagnosed with. Lest there be any doubt, Dr. DuBois
also agreed that “the calcifications seen on the April 16th, 2014 mammogram
[were] really the malignancy, the malignant neoplasm of the breast that was
eventually diagnosed.” 7
Even if Dr. DuBois’s testimony was not clear that the April mammogram
recommended diagnosis of Jones’s breast cancer (manifested at the time as
calcifications), the majority inappropriately resolves what is then an issue of fact
by granting summary judgment to Jones. If there is some ambiguity in the record
or conflicting testimony from Dr. DuBois whether Jones’s calcifications were her
cancer, then that is a question of fact that cannot be resolved on summary
judgment. See Ga. State Conference of NAACP v. Fayette Cty. Bd. of Comm’rs,
775 F.3d 1336, 1345 (11th Cir. 2015) (“If any fact issues exist a trial judge must
7
Dr. DuBois made the same point even in the portion of his deposition selectively quoted by the
majority: that the calcifications “w[ere] an abnormality that suggested the possibility of a
cancer[ ] [a]nd ultimately it was a [sic] cancer,” and were “part of the cancer” in that they were
“related to the metabolism of the cancer.”
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not make findings but is required to deny the motion and proceed to trial.”
(quoting Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983))).
For this reason, even if Dr. Bauer’s report did not recommend “diagnosis,” it
at least recommended “advice” about what Jones should do regarding her
calcifications. As discussed earlier, Bergan held that a doctor’s guidance to seek
further diagnostic testing and evaluation constitutes “advice.” 196 Ga. App. at 80.
In short, I conclude that Jones had a preexisting condition as defined in
§ 5(A) of the Policy. In reaching this conclusion, I note that it would be
impossible not to feel sadness about Jones’s illness and empathy for the severe
financial ramifications she has suffered. At the same time, Jones, who is both a
nurse and an experienced lawyer, knew that she had had a mammogram over two
months prior to her application for a health insurance policy containing a very
broad preexisting-condition exclusion. She further knew that she had not obtained
the results of that mammogram at the time she applied for the insurance. That she
had unsuccessfully tried on more than one occasion to obtain the report should not
have inspired optimism on her part or confidence that she could evade a
preexisting-condition clause by remaining ignorant.
This is not a case in which there was some secret diagnosis hidden in a
doctor’s files. Jones knew she had undergone the procedure and that there was an
answer as to the results of this procedure. Prudence dictated that she obtain that
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answer before she signed onto a policy that might exclude coverage based on the
results of that test and any recommendations it might contain. Certainly, Jones was
able to obtain those results after she had enrolled with Golden Rule; there was
nothing to prevent her from doing so prior to enrolling. In the end, I simply, but
respectfully, disagree with the majority’s conclusion that § 5(A) is not applicable
here. Thus, I dissent as to the reversal of summary judgment on this provision.
B. The Nostra Sponte Granting of Summary Judgment to Jones
I strongly disagree with the majority’s decision to grant summary judgment
to Jones when she never moved for summary judgment below and did not request
it on appeal. Maj. Op. at 23–25.
First, an insured has the burden to show an entitlement to coverage.
Travelers Home and Marine Ins. Co. v. Castellanos, 297 Ga. 174, 176–77 (2015).
Whether Jones is entitled to coverage, however, has never been briefed by the
parties—in the district court or on appeal—and the majority offers no explanation
for why it believes she is inevitably entitled to coverage. Even assuming that her
condition is not excluded under § 5(A), that alone does not establish her
entitlement to coverage. By granting Jones summary judgment, the majority
reverses the burden of proof, grants relief that Jones never asked for, and
essentially takes up the mantle as Jones’s counsel. Clearly, Jones is represented by
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able counsel who could have requested summary judgment below, but did not do
so.
Second, the cases relied upon by the majority for the proposition that an
appellate court may enter summary judgment nostra sponte emphasize that
“[s]ummary judgment will not be awarded to the non-moving party . . . where . . .
the moving party has not been given a full and fair opportunity to dispute the facts
alleged by his adversary.” E.C. Ernst, Inc. v. Gen. Motors Corp., 537 F.2d 105,
109 (5th Cir. 1976); see also Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014)
(en banc) (“[Courts] should not reverse a summary judgment and order judgment
for a non-moving party based on an issue that the movant had no opportunity to
dispute in the district court.” (quoting Kassbaum v. Steppenwolf Prods., Inc., 236
F.3d 487, 495 (9th Cir. 2000)). Yet here the parties have not briefed—before this
Court or the district court—whether Jones is entitled to coverage.
As to whether Dr. Bauer’s May report constitutes “advice,” which would
exclude coverage of Jones’s breast cancer, Golden Rule raised this argument
before the district court in its motion for summary judgment, but the district court
did not address it. Though Golden Rule did not raise this argument again in its
brief, Golden Rule had no obligation to because it was not raised in Jones’s initial
brief. In fact, Jones argued in her initial brief that “th[e] Court need not consider
whether the April 16, 2014 mammogram constituted ‘advice’” because “the
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Case: 17-13952 Date Filed: 08/23/2018 Page: 43 of 43
question [on appeal] [wa]s solely whether the April 16, 2014 mammogram was a
‘diagnosis.’” The majority’s unilateral grant of summary judgment incentivizes
appellees to include any and every argument they can in their opposition briefs,
even for issues that the appellant concedes are not before the Court on appeal, for
fear that this Court may reverse and grant summary judgment to the nonmoving
party.
Golden Rule likely expected that the outcome of this appeal would be, at
worst, a reversal of the district court’s summary judgment order and a remand to
decide the remaining issues. Given that is how most appeals work, this certainly
was not an unreasonable expectation. Moreover, we don’t know what we don’t
know, and we cannot discern what impact our nostra sponte grant of summary
judgment to Jones might have on other issues in this case.
Respectfully, I dissent.
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