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Samsel v. Allstate Insurance Company12/12/2002
s of the type involved here it should exclude them specifically so that an insured with additional medical or hospital coverage would know that he is receiving less coverage for his premium dollar than some other insured who is without outside benefits. 27 Cal.Rptr. at 872.
We agree. We note that other insurers have, in fact, coordinated their medical payments coverage and thus eliminated coverage for expenses paid by an HMO or other collateral source:
Safeco further argues that . . . the policy it issued to Allen expressly provides that the first-party medical payments coverage is excess coverage. The "Medical Expenses Section" of the policy contains the following provision:
"Other Insurance. If there is other medical, hospital benefits insurance (other than Medicare), Health Maintenance Organization or Preferred Provider Organization benefits available from any source against a loss covered by the Medical Expenses Section of this policy, this insurance shall be excess insurance over any other valid and collectible medical, hospital benefits insurance, Health Maintenance Organization or Preferred Provider Organization benefits." Safeco Ins. Co. v. Allen, 941 P.2d 1365, 1368-69 (Kan. 1997) (emphasis in original).
We also note that Allstate's policy has included such a coordination clause with respect to workers' compensation benefits but not for medical payments coverage. The medical payments coverage issue we are presented with here is certainly better resolved by specific exclusion, other insurance, or a coordination of benefits clause than by reliance on litigating the meaning of the term, undefined in the policy, "actually incurred by the insured."
3. Premium differential, underwriting considerations, and reasonable expectations This brings us to a final factor. One might truly inquire what the parties intended or expected with respect to the policy's application to this set of facts. The average consumer, of course, would have no inkling of the problem and no intent other than to get what he or she bought. Darner Motor Sales, 140 Ariz. 383, 682 P.2d 388. As noted, Allstate did not include any language indicating its intent to exclude coverage in situations in which expenses were paid by an insured's HCSO. It presented no evidence that the limitation was in any way called to the Samsels' attention. In view of the great number of cases addressing that issue, many of them involving Allstate, it is not unreasonable to assume that had Allstate intended to exclude coverage in such a situation, it would have so stated in the policy. Nor did Allstate present any evidence from its underwriting department that given the premium charged, such was its intention. Nor did Allstate show that like some insurers, it presented its insureds with a choice for restricted coverage for a lesser premium.
Given the pervasiveness of coverage through HCSOs of one type or another, a reasonable consumer would expect that absent any indication to the contrary, medical payments coverage would apply to all expenses incurred for treatment of his or her injuries, regardless of what collateral benefits the insured may have purchased or paid for. HMO enrollees who are offered medical payments coverage limited by Allstate's interpretation are entitled to be informed that to a great extent the coverage is useless. HMO coverage, of course, is not some gift handed to an enrollee but protection an enrollee has earned and paid for by his or her labor, payroll deductions, and employer contributions.
CONCLUSION
Thus, we see no compelling reason why expenses paid by the HMO coverage Lisa bought and paid for should be treated differently than expe
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