TANZER v. HEALTH INSURANCE PLAN OF GREATER NEW YORK, 91 N.Y.2d 850 (1997)

690 N.E.2d 1257, 668 N.Y.S.2d 151

Court of Appeals of the State of New York.Argued November 18, 1997
Decided December 17, 1997

APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered April 1, 1997, which, with two Justices dissenting, (1) reversed, on the law, to the extent appealed from, an order of the Supreme Court (Ira Gammerman, J.), entered in New York County, inter alia, denying a motion by defendant to dismiss the first, second, third and fourth causes of action in the complaint alleging breach of contract, fraudulent inducement, negligent misrepresentation, and violation of General Business Law § 349, (2) granted defendant’s motion, and (3) dismissed the first, second, third and fourth causes of action in the complaint.

Tanzer v Health Ins. Plan, 238 A.D.2d 109, reversed.

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Wolf Popper, L.L.P., New York City (Lester L. Levy an Carl L. Stine of counsel), for appellant.

Stroock Stroock Lavan, L.L.P., New York City (Charles G. Moerdler, Eva Coben Talel, Burton N. Lipshie, Regan A. Shulman
and Laura R. Shaw of counsel), for respondent.

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 for the 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, 228 A.D.2d 311, 322; Houck v Sparks,
81 F.3d 168; Alston v Howard, 925 F. Supp. 1034, 1038;

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Gess v United States, 952 F. Supp. 1529; Norris v Detrick, 918 F. Supp. 977, 980, n 5; 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, 218 Mich. App. 576, 577, 554 N.W.2d 67, 68 Morgan v McPhail, 449 Pa. Super. 71, 672 A.2d 1359; Roberts v Cox, 669 So.2d 633, 640 [La Ct App]; K Mart Corp. v Beall, 620 N.E.2d 700, 703 [Ind Ct App]; White v Katz, 261 N.J. Super. 672, 674-675, 619 A.2d 683, 684; Public Health Law § 3380; 11 NYCRR 52.6; Ark Code Ann § 5-60-116 [b] [2]; Conn Gen Stat Ann § 21a-280; Mich Comp Laws Anno § 752.272; N.H. 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.[*] 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 “inpatient drugs or supplies” exclusion is construed to encompass all inpatient 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’s policy 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’

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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 N.Y.2d 640, 652; see, Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304, 311). Accordingly, defendant has not established its entitlement to an order dismissing the complaint.

Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur in memorandum.

Order reversed, etc.