Heck v. Time Insurance Co

* Pursuant to 5TH CIR. Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. Rule 47.5.4.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-30309
________________________
MISTY HECK, Plaintiff-Appellant,
versus
TIME INSURANCE COMPANY, Defendant-Appellee.
_____________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(95-CV-629-A-M1)
_____________________________________________________
May 16, 2000
Before WIENER, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Misty Heck appeals from the adverse
judgment of the district court, grounded in a jury verdict,
agreeing with the contention of Defendant-Appellee Time Insurance
Company (“Time”) that Heck’s infant daughter, Sommer, had a pre-
existing medical condition within the meaning of the health
insurance policy issued by Time (“the Policy”) that voided
coverage. We perceive no reversible error in the court’s jury
instructions and interrogatories —— to which neither party timely
objected —— and we agree with the district court’s conclusion that

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sufficient evidence was adduced on which a reasonable jury could
find that, prior to the effective date of the Policy —— 12:01 a.m.,
December 23, 1994 —— Sommer exhibited “signs or symptoms [that]
should have caused an ordinarily prudent person to seek diagnosis
or treatment,” thereby making her “signs or symptoms... significant
enough to establish manifestation” of her disease before the Policy
was effective and thereby constitute a pre-existing condition. We
therefore affirm.
Time has never intimated, much less asserted, that Heck or any
other family member acted in bad faith in obtaining insurance from
Time in such close proximity to the diagnosis of little Sommer’s
fatal neuroblastoma. Rather, Time has maintained at all times that
observations of objective physical conditions of the child’s
abdomen by a family member and a caregiver were such that a layman
of ordinary prudence would have been prompted to seek diagnosis or
treatment. This is not to be confused with prompting a prudent
layman to suspect that Sommer was suffering from neuroblastoma, or
from some other form of cancer, or for that matter from any
specific disease or adverse medical condition whatsoever; only that
her symptoms were such that a prudent layman’s concern should have
been piqued sufficiently to prompt the seeking of professional
diagnosis or treatment for whatever malady might be producing these
symptoms.
In excluding coverage of a pre-existing sickness or injury,
the Policy defines sickness as “[a]n illness, disease or condition
which first manifests itself while this policy is in force.” The

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Policy goes on to state expressly what that definition implies,
i.e., that pre-existing conditions are not covered, and to define
a pre-existing condition as:
[a] sickness, injury, disease or physical
condition:
1. For which the Covered Person received
medical treatment or advice from a Physician
within the five year period immediately
preceding the Effective Date of Coverage;
2. which produced signs or symptoms within the
five year period immediately preceding the
Effective Date of Coverage.
The policy then establishes “manifestation or onset” as the
threshold for signs and symptoms to be cognizable:
The signs or symptoms must have been
significant enough to establish manifestation
or onset....
And the policy established a two-part, disjunctive test for
determining if signs or symptoms are sufficiently significant to
constitute manifestation or onset:
a. The signs or symptoms would have allowed
one learned in medicine to make a diagnosis of
the disorder; or
b. The signs or symptoms should have caused an
ordinarily prudent person to seek diagnosis or
treatment.
Time insists that signs or symptoms of Sommer’s sickness or
disease for which it is denying coverage —— her neuroblastoma ——
were sufficient to manifest her condition before the December 23,
1994 effective date of the Policy. On appeal, Time does not stress
that these signs or symptoms were significant enough, prior to
coverage, to allow “one learned in medicine” to diagnose Sommer’s

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cancer. Rather, Time supports the jury’s determination that those
signs and symptoms were sufficiently significant to establish
manifestation or onset under the second, “ordinarily prudent
person” prong of the disjunctive test contained in the Policy.
Time observes that, unlike the first, “one learned in medicine”
prong, this second prong is not disease-specific —— and properly
so. Under this prong, a layman need only observe an abnormal
condition that should prompt him to seek diagnosis or treatment; he
need not know or even have any clue as to the identity of the
sickness or illness that is causing those signs or symptoms.
Although an element of confusion might have been generated by
Sommer’s temporally coincident symptoms of an ear infection and her
pre-coverage examination and treatment for that condition during
the period preceding her diagnosis of neuroblastoma, we find no
indication in the record that the jury was confused or misled by
the simultaneous presence of these unrelated illnesses. We are
satisfied that the jury focused on the key question of this appeal,
whether the evidence of the palpable and visible condition of
Sommer’s abdomen as observed by laymen prior to December 23, 1994,
was such that the hypothetical “ordinarily prudent person” —— being
neither an hysterical, overreacting person nor an overly blase or
unduly indifferent person —— would be prompted to have that child
examined by a health care professional for whatever might be
causing those signs or symptoms.
The following evidence of lay observations of Sommer’s “signs
or symptoms” was presented to the jury: (1) At a Christmas party

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1 The jury also heard evidence that on December 18, 1994 —— a
week after the stepgrandmother noticed the hard tummy and suggested
that it be checked and three or four days before the daycare worker
noticed that Sommer’s abdomen was swollen and hard —— Sommer was
observed by her parents to have a high fever and repeatedly pull at
her ears, prompting Heck to seek diagnosis and treatment.
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on December 10, 1994, Heck’s stepmother noticed that Sommer’s
“little tummy was hard,” mentioned it to her husband (Heck’s
father), and suggested that the child’s stomach be checked; but
also testified that she thought Sommer “might have gas” and did not
think it was “that big of a deal”; (2) on December 21st, Sommer’s
regular caregiver at her childcare center noticed that Sommer’s
abdomen was “a little swollen” and hard, but speculated that the
child might be constipated; (3) the next day, that same caregiver
observed that Sommer’s abdomen was still swollen and hard but did
not appear to be getting larger, observing that the child otherwise
appeared to be fine. The jury also heard testimony in mitigation
of the sufficiency of such signs or symptoms to prompt the seeking
of medical attention: (1) Neither Heck’s stepmother nor the
daycare worker were sufficiently alarmed to relate their
observations to Sommer’s parents; (2) the daycare worker testified
that Sommer’s usual pattern of bowel movements was such that the
worker assumed the child’s hard and swollen abdomen was symptomatic
of constipation; and (3) the physician who eventually diagnosed
Sommer’s malignancy stated that “a swollen belly would be an
appropriate presentation” of a neuroblastoma in the abdomen, but
added that “the common swelling in a baby’s belly is one in which
they are full of poo rather than full of tumor.”1

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Antibiotics were prescribed by phone and Sommer was seen by the
family physician during his rounds at the hospital the next day, at
which time he confirmed the diagnosis of ear infection from which,
in the opinion of her parents, she recovered after taking the
antibiotics. Time does not base its denial of coverage on the
symptoms of ear infection and, as noted above, nothing in the
record suggests that the jury was confused by that ear infection
evidence or considered its signs or symptoms in responding
affirmatively to jury interrogatory number 3, “[d]o you find that
Sommer had signs or symptoms prior to December 23, 1994, which
should have caused an ordinary person to seek diagnosis or
treatment?” The ear incident came and went routinely during the
hiatus of several days between December 10 and 21, while the
abdomen situation was quiescent, at least as far as the record of
this case is concerned.
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At different stages of the two day trial, each party moved for
a judgment as a matter of law and, within ten days following the
entry of judgment, Heck renewed her motion and, in the alternative,
requested a new trial. The district court denied all these motions
and filed a written opinion in which it concluded that the jury was
entitled to infer from the evidence that Sommer’s objective signs
and symptoms of abdominal problems were sufficiently significant to
cause an ordinarily prudent person to seek professional attention.
We agree with the trial court’s assessment.
This appeal presents a quintessential question of fact for
jury determination. The coverage denied by Time was that for
medical costs and expenses arising from or connected with Sommer’s
abdominal neuroblastoma. The pre-December 23rd signs and symptoms
relied on by Time are those directly related to Sommer’s abdomen,
and are the ones considered by the jury. This presented the jury
with a straightforward choice: Either (1) agree with Heck that the
tight and swollen abdomen observed by her stepmother on December 10
and by the daycare worker on December 21st and 22nd was the kind of

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condition that persons who care for infants encounter routinely and
not the kind that should prompt one to resort to healthcare
professionals for diagnosis and treatment, or (2) agree with Time
that an ordinarily prudent person should indeed be prompted to seek
diagnosis or treatment on observing such signs or symptoms in a
child. The jury deliberated and, in the end, agreed with Time.
If presented with the same factual determination, we might not
reach the same conclusion as did the jury. As the evidence of the
signs and symptoms presented to the jury was more than a mere
scintilla, however, we are prohibited from substituting our
opinion, based on a cold record, for that of the jurors who heard
the testimony and observed the witnesses —— as did the trial judge,
who declined Heck’s invitation, both before and after verdict, to
grant her motion for a judgment as a matter of law or a new trial.
Finding no reversible error in the conduct of the jury trial
of this case or in the rulings of the district court, the judgment
of that court is, in all respects,
AFFIRMED.

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