COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72720 ADELBERT NOVAK : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION AMERICAN COMMUNITY MUTUAL : INSURANCE COMPANY, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : AUGUST 20, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-292510 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: TIMOTHY G. DOBECK, ESQ. MARIANN E. BUTCH, ESQ. Cassidy, Reiman & Harbarger Benesch, Friedlander, Coplan & 6285 Pearl Road, Suite #8 Aronoff Parma Heights, OH 44130 2300 BP America Bldg. 200 Public Square Cleveland, OH 44114-2378 CHARLES J. FRENCH, III, ESQ. CHRIS BATOR, ESQ. Baker & Hostetler 1900 East Ninth Street Cleveland, OH 44114-3485 PETER C. ELLIOTT, ESQ. -i- MICHAEL T. WILLIAMS, ESQ. Law Office of Daniel W. Dreyfuss 75 Public Square, Suite 1001 Cleveland, OH 44114 ROBERT J. GERLACH, ESQ. Quandt, Giffels & Buck Co., L.P.A. 800 Leader Building 526 Superior Avenue, E Cleveland, OH 44114-1460 JOHN T. PATTON, J.: Plaintiff-appellant Adelbert Novak ( plaintiff ) appeals the order of the trial court granting summary judgment in favor of defendant-appellees American Community Mutual Insurance Company -2- ( ACMIC ), Howard Cooper ( Cooper ), and Henry Reed ( Reed ). Plaintiff claims the exclusion in the insurance policy denying him coverage is ambiguous and unconscionable. In the summer of 1994, plaintiff was seeking health insurance. He contacted several companies, but each time he was denied coverage because of his prior carotid artery disease. He subsequently met with Reed, an independent insurance agent, to discuss his options. Reed evaluated plaintiff's needs and suggested a short term policy from ACMIC1. Although, Reed is not licensed to sell ACMIC polices, he obtained an application from Cooper, who is a licensed agent. Plaintiff and Reed discussed the policy and filled out the application and sent it to ACMIC. Thereinafter plaintiff obtained health insurance from ACMIC. The policy was activated on August 8, 1994 and expired on December 31, 1994. On December 23, 1994 plaintiff visited Dr. Effron, a cardiologist, at University Hospitals of Cleveland. During this visit, plaintiff complained of chest pain, shortness of breath, and soreness in his left breast. Plaintiff indicated to Dr. Effron he had been experiencing these symptoms since October, 1994. Based on his examination of plaintiff, Dr. Effron recommended a diagnostic coronary arteriography ( DCA ); i.e., a heart catheterization, so 1A policy which is called short term is essentially a gap filler, or a policy which provides a person with health insurance for a short period until their primary policy begins. Here, plaintiff signed two short term policies which act as separate and distinct policies and are distinguishable from merely renewing an existing policy. -3- he could make a definite diagnosis to determine whether plaintiff had coronary artery disease. Approximately one week later, on January 1, 1995 plaintiff activated his second policy health insurance policy with ACMIC. On January 12, 1995, the DAC was performed on plaintiff and confirmed the diagnosis of coronary artery disease. Based on this diagnosis, Dr. Effron recommended coronary artery bypass surgery. Plaintiff underwent the bypass surgery on January 18, 1995. After conducting an investigation, ACMIC determined plaintiffs claims for treatment of coronary artery disease were not covered under the second policy because the condition of coronary artery disease pre-existed the activation of the second policy on January 1, 1995. The second policy defines pre-existing condition as an illness, disease, accidental bodily damage or loss that first appears (makes itself known) before the Effective Date. As a result, ACMIC denied plaintiff coverage. Six months later, plaintiff filed a complaint against ACMIC complaining (1) the exclusion portion of ACMIC's health insurance policy was unconscionable, (2) ACMIC breached its contract with him, and (3) ACMIC acted in bad faith in denying his claim. The complaint also included a negligence claim against Cooper complaining Cooper was under a duty to obtain a truthful and accurate response to Plaintiff's inquiry of whether the 1991 carotid artery disease would affect his receipt of policy benefits." Subsequently, plaintiff amended his complaint and -4- asserted a claim against Reed stating Reed negligently sold ACMIC policies because he was not licensed to do so and because he failed in his duty to obtain a truthful and accurate response to Plaintiff's inquiry of whether the 1991 carotid artery disease would affect his receipt of policy benefits. All parties filed motions for summary judgment. The trial court granted both Reed and Cooper's motions, over the objection of plaintiff, but denied ACMIC's motion. However, upon reconsideration, the trial later granted ACMIC's motion for summary judgment. Plaintiff timely filed his notice of appeal and submits three assignments of error. In his first assignment of error, plaintiff states as follows: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ACMIC BECAUSE THE POLICY EXCLUSION AT ISSUE HEREIN IS AMBIGUOUS AND THEREFORE UNENFORCEABLE. First, plaintiff argues when an ambiguity arises in an insurance policy it must be construed against the drafter of the policy language, in this case ACMIC. DeMatteis v. American Community Mutual Ins. Co. (1992), 84 Ohio App.3d 459, 462. Second, plaintiff claims the policy exclusion ambiguously provides that an illness or disease *** that first appears (makes itself known) before the effective [policy] date. Plaintiff claims this language is ambiguous because the words `first appears' has many conflicting meanings and conflicts with a disease or illness which `makes itself known.' He also argues the first appearance of a disease can signal the beginning of a disease or conversely it also contemplates the appearance of a disease such as the disease -5- becoming known or manifest. This language, plaintiff claims, requires that the disease make itself known, identified or diagnosed. Regarding the policy ambiguity, plaintiff cites Craver v. Fidelity Life Ins. Co. (1975), 35 Ohio Misc. 15, affirmed in Craver v. Fidelity Life Ins. Co. (1975) 37 Ohio App.2d 100. In the initial Craver, the court held the policy exclusion stating such sickness or disease is first manifested after the effective date of the policy was patently ambiguous to the average person because it could mean if a person were sick at the time a policy was taken out they were not covered, yet if they became sick after the policy went into effect they were covered. Id. at 18. He also cites Sheeler v. Ohio Bureau of Workers' Comp. (1994), 99 Ohio App.3d 443, 450, for the proposition that a pre-existing condition makes itself known to an individual when the individual knew of the condition due to prior diagnosis, or was aware of the problem. Applying this argument and law to the instant case, plaintiff contends he experienced chest pains prior to obtaining the second policy, but he had not been diagnosed as suffering from coronary artery disease and hence he did not know he had the disease until the catheterization which occurred after the activation of the second policy. Thus, he claims he should have been provided coverage by ACMIC because he did not know or did not become aware of the disease until after the second policy was activated. ACMIC counter-argues a provision in an insurance contract excluding pre-existing conditions from coverage is valid and -6- enforceable. It claims a disease first appears (makes itself known) when there is a distinct symptom or condition from which one knowledgeable in medicine can, with reasonable accuracy, diagnose the illness. Thus, the disease itself does not have to be diagnosed before it manifests but rather symptoms may be indicative of the presence of a disease. In support, ACMIC cites Cardamone v. Allstate Ins. Co. (1977), 49 Ill. App.3d 435, where a woman was denied coverage because symptoms manifested themselves one day before the policy's effective date. The court held it was clear, based on the symptoms and not on a medical diagnosis made after the effective date, the woman's condition could have been diagnosed before the activation of the policy and thus coverage was properly denied. ACMIC argues plaintiff's chronic coronary artery disease could have been diagnosed with reasonable medical certainty on December 23, 1994. ACMIC maintains plaintiff admitted to Dr. Effron on December 23, 1994 that he had been experiencing symptoms consistent with coronary artery disease since October 1994, precluding the argument that his coronary artery disease first manifested itself with its official diagnosis on January 12, 1995. Therefore, ACMIC claims, it properly denied plaintiff coverage because he had a pre- existing condition which manifested itself before activation of the second short term policy. Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one -7- conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 46, 50. Moreover, it is well established that construction of contracts is a matter of law to be resolved by the court. Lovewell v. Physicians (1997), 79 Ohio St.3d 143, 144. The policy provision at issue which pertains to pre-existing conditions states as follows: an illness, disease, accidental bodily damage or loss that appears (makes itself known) before the Effective Date The first issue to address is whether the language of the insurance policy was ambiguous. In United States Fire Ins. V. Athletic Assn. (1991), 71 Ohio App.3d 765, the court confronted an interpretation of an insurance policy provision and stated: The words in a policy must be afforded their plain and ordinary meaning, `and only where a contract of insurance is ambiguous and therefore susceptible to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks coverage.' Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84, 89. Although any exclusion from liability must be clear and exact to be given effect, Lane v. Grange Mut. Cos. (1989), 45 Ohio St.3d 63, the rule of liberal construction of an insurance policy should not be utilized to create an ambiguity in a policy when none, in fact, exists. Burris, supra. In plaintiff's deposition testimony, he stated Cooper told him his prior carotid artery disease was not covered because it is a -8- pre-existing condition and that he understood the short term policy would not provide coverage for pre-existing conditions. Thus, plaintiff understood the meaning of the policy exclusion to mean conditions which arise before the activation of the short term policy will not be covered by the policy. The language of the provision is clear and not ambiguous. The second issue to be addressed is whether a pre-existing condition first appears (makes itself known) by symptoms which are indicative of the condition or a specific diagnosis of the condition by a doctor. We find the latter argument more persuasive than the former. Plaintiff informed Dr. Effron on December 23, 1994 that he had been experiencing chest pain, shortness of breath, and soreness in his left breast since October 1994. After examining plaintiff, Dr. Effron suggested plaintiff undergo a catheterization because the likelihood of coronary disease was sufficiently high and his health was otherwise sufficiently satisfactory that he would most benefit from a definitive diagnosis via an invasive technique. Dr. Effron stated it would have been his practice to tell a patient with the same symptoms as plaintiff that the symptoms were consistent with a diagnosis of coronary artery disease. The fact that plaintiff visited Dr. Effron indicates plaintiff was aware he had a specific health problem. The subsequent examination by Dr. Effron and suggestion that he undergo a catheterization also indicates plaintiff was aware that he had a specific medical problem. Although it is true an exact diagnosis -9- was not made until after activation of the second policy, Dr. Effron did state it was his practice to inform patients with plaintiff's symptoms the symptoms were consistent with a diagnosis of coronary artery disease. Based on the symptoms plaintiff experienced, the fact that he visited a doctor because of the severity of the symptoms, an examination by a doctor revealing plaintiff's symptoms were consistent with a diagnosis for coronary artery disease, we find coronary artery disease was made known or appeared to plaintiff before the activation of the second short term policy. Regarding DeMatteis, with facts very similar to the instant case, we find it to be distinguishable. In DeMatteis, the plaintiff was denied coverage for treatment which occurred after his short term policy was activated. The insurance company claimed his condition was pre-existing because it was chronic, i.e., always present. The primary issue then was whether the DeMatteis' condition was chronic or not. The court held it was not and reversed the trial court's granting of summary judgment in favor of the insurance company. In contrast, in the instant case the condition arose before the short term policy was activated. There were no issues concerning whether the condition was chronic or not. The instant case focuses on a non-chronic condition which arose a few months before activation of the short term policy. Moreover, we find the reasoning in Goshorn v. Hospital Care Corporation (1989), 46 Ohio App.3d 47, 48 to be more persuasive. The court reasoned an unknown -10- condition was one that had not manifested symptoms, implying that a known condition is manifested when the symptoms are known. Ultimately, the court determined the insurance policies exclusion provision improperly denied coverage, but this was based on a congenital condition which exhibited no symptoms. Applying this reasoning to the instant case, plaintiff was made aware of his condition back in October 1994 when he noticed the symptoms of coronary artery disease. Plaintiff also cites Sheeler v. Ohio Bureau of Workers' Compensation (1994), 99 Ohio App.3d 443, for the proposition that a pre-existing condition is made known when it is diagnosed or identified. Plaintiff claims this means more than unidentified non-specific symptoms are required to establish a pre-existing condition. Plaintiff is correct. In the instant case, there was more than unidentifiable non-specific symptoms. There was specific identification of symptoms by the plaintiff, there was an examination by a doctor, and the doctor indicated to plaintiff his symptoms were clearly indicative of coronary artery disease. Therefore, plaintiff's reasoning is correct but simply misplaced. Plaintiff's also cites Craver, supra, and argues the court's holding that the insurance policy language stating where such sickness or disease is first manifested after the effective date of the policy is ambiguous, is applicable to the exclusion provision in the instant case. He claims the Craver language is similar to the wording of the exclusion provision in the instant case and thus the instant language is also ambiguous. This reasoning is not -11- applicable to this case for two reasons. First, citations from Ohio Miscellaneous are not binding on this court. See N.R. Inc., v. Ohio Liquor Control Comm. (1996), 113 Ohio App.3d 198. Second, we are more persuaded by Craver, 37 Ohio App.2d 100, 103, where the court considered the holding in the prior case and stated we have experienced difficulty in following the somewhat exiguous basis advanced for a finding of ambiguity in the above definition ***. Likewise, our review of the initial Craver case reveals no substantive basis for holding the above-quoted language was ambiguous. Based on the foregoing analysis, we find after viewing all the evidence in a light most favorable to the plaintiff, that as a matter of law the insurance policy language is not ambiguous and that plaintiff had a pre-existing condition to which the second policy did not apply. Accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error states as follows: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ACMIC BECAUSE THE APPLICATION OF THE PRE-EXISTING CONDITION EXCLUSION IS UNCONSCIONABLE. Plaintiff argues the exclusion provision in the insurance policy is unconscionable because he was unaware of the existence of his pre-existing condition and to deny him coverage based on this provision would produce an unjust result. Plaintiff cites no cases which hold exclusionary provisions are unconscionable. Instead he claims the denial of coverage based on the exclusion provision in addition to his lack of knowledge -12- regarding his condition will produce an unjust result and therefore the provision is unconscionable. Before the first short term policy was activated plaintiff was informed by Cooper that pre-existing conditions were not covered by the policy. Despite this information, plaintiff still signed the policy and activated it. Although the policy did not provide the coverage plaintiff expected, he cannot now complain about the result when he had full knowledge of the possibility of it occurring. Essentially, plaintiff received exactly what he bargained for. We hold there is nothing unconscionable about the exclusion provision in ACMIC's insurance policy and the trial court properly determined no genuine issue of fact exists. Accordingly, plaintiff's second assignment of error is overruled. Plaintiff's third assignment of error states as follows: WHERE AN INSURER ISSUES SUCCESSIVE SHORT TERM POLICIES, PRE-EXISTING CONDITION EXCLUSIONS WITHIN SUCH POLICY IN EFFECT CREATES ONLY ILLUSORY COVERAGE AND ARE THEREFORE UNCONSCIONABLE. Defendant argues the issuance of two successive short term insurance policies is unconscionable. He claims the polices are unconscionable because they purport to provide medical insurance but in reality, they only provide coverage for acute type conditions of undiagnosed symptoms which occur within the time period of a single policy. In support of this proposition, plaintiff cites Allen v. Golden Rule Insurance Co. (August 15, 1990), Montgomery App. No. 12109 where the court considered two -13- successive insurance policies and found their application as a package to be illusory. Essentially, the same reasoning in the prior assignment of error applies here. Defendant knew he was receiving short term health insurance and knew pre-existing conditions were excluded. The fact that a health problem arose before he signed a second policy thereby creating a pre-existing condition does not mandate that the policy was illusory. The purpose of short-term policies is to provide health insurance for medical problems that arise during the pendency of the policies and this is exactly what plaintiff received. Allen is not applicable to the facts of the instant case because the issues are distinguishable. In Allen, the plaintiff wanted coverage for an injury that occurred after his short term policy expired. The plaintiff argued the policy's non-renewability clause and exclusions, including one for pre-existing conditions, rendered the policy unconscionable because when these provisions are applied as a package, the coverage is illusory. The court did not agree with the plaintiff and found in favor of the defendant- insurance company holding [c]onsidering both the purpose of issuing short term policies and the options available to the purchaser of the policy to cover gaps we [find] that the policy is not unconscionable. Id., unreported at 2. We agree with the holding in Allen and find the insurance policy in the instant case was not illusory. Therefore, the trial court properly found no genuine issue of fact regarding whether -14- ACMIC's insurance policy was illusory. Accordingly, plaintiff's third assignment of error is overruled. Lastly, in regard to Cooper and Reed, plaintiff did not submit any assignment of errors related to them. Therefore, we need not consider any arguments related to them and as a result we find the trial court properly granted summary judgment in their favor. See App.R. 12(a)(2). Judgment affirmed. -15- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court direct ing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .