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Molnar v. Conseco Medical Insurance Co.6/9/2005
In both 1981 and 1995, David Molnar had surgery to implant and replace an artificial left hip, necessitated by a childhood injury and severe arthritis. In May 2000, after his original insurer had gone out of business, Molnar purchased a health insurance policy from Conseco Medical Insurance Company (Conseco) that included the following "Exception Endorsement":
"NO BENEFITS WILL BE PAID UNDER THIS CERTIFICATE OF INSURANCE, OR UNDER ANY RIDER OR AMENDMENT THERETO, FOR DISABILITY, LOSS OR EXPENSE RESULTING FROM OR CAUSED BY ANY DISEASE OR DISORDER OF THE LEFT HIP INCLUDING ANY OPERATION OR TREATMENT FOR OR COMPLICATIONS THEREOF SUFFERED BY DAVID A. MOLNAR."
Molnar signed this exception endorsement just underneath a line that read: "THE POLICY/CERTIFICATE SHALL BE NULL AND VOID UNLESS THIS ENDORSEMENT IS SIGNED BY THE APPLICANT. I HAVE READ AND ACCEPTED THIS ENDORSEMENT."
In July 2001, Molnar began to experience problems with his left hip. After undergoing two operations to remove and replace his artificial left hip (his second such hip replacement surgery), Molnar filed a claim with Conseco for reimbursement of his medical expenses. Relying on the above-quoted exception endorsement, Conseco refused.
Molnar asked Conseco to reconsider its decision based upon letters from his doctors stating that the injury to his left hip was due to a tooth infection which had traveled through his bloodstream down to his hip. According to the doctors' letters, Molnar's 2001 hip operations were unrelated to "a pre-existing condition" or to "his previous hip surgery." When Conseco refused to change its initial decision, Molnar filed suit.
In his complaint, Molnar asserted two claims: (1) breach of contract for Conseco's failure to pay his medical expenses from his hip operations and (2) bad faith under section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2002)) for Conseco's vexatious and unreasonable denial of coverage. After both Molnar and Conseco filed cross-motions for summary judgment, the circuit court found in favor of Molnar on his breach of contract claim.
Relying upon Herrera v. Benefit Trust Life Insurance Co., 126 Ill. App. 3d 355 (1984), the circuit court found that the exception endorsement was ambiguous and construed it in favor of Molnar as excluding coverage only for "diseases or disorders that occur because of the existing condition (a prior hip replacement with a prosthetic joint) of the hip and not external factors that injure or affect the hip." The court found that because "the [infection] from the tooth was an external factor and not a pre-existing condition," the exception endorsement did not bar coverage.
The court also found, however, that Conseco's reliance upon this exception endorsement was not so unreasonable as to constitute bad faith under the Illinois Insurance Code and granted summary judgment for Conseco on Molnar's bad-faith claim under section 155 of the Illinois Insurance Code. Both Conseco and Molnar filed cross-notices of appeal.
Initially, we note that even though Molnar filed a notice of appeal (presumably, to challenge the circuit court's finding that there was no genuine issue as to whether Conseco had acted in bad faith), he has failed to file any motion or brief related to that appeal. In both his response brief to Conseco's opening brief for its appeal and the supplemental brief ordered by this court, Molnar mentions neither his cross-appeal nor the issues he sought to raise in it. Therefore, any issues he might have raised are waived (see 188 Ill. 2d Rs. 341(e)(7), (f) (stating that any issues not raised by appellee in his brief are waived and "shall not be raised
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