Achilles Kirkou v. Blue Cross Blue Shield of Memphis

19 F.3d 23 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. Achilles KIRKOU, Appellant, v. BLUE CROSS BLUE SHIELD OF MEMPHIS, Appellee. No. 93-2035. United States Court of Appeals, Eighth Circuit. Submitted: December 17, 1993. Filed: March 3, 1994. — 1 — Before MAGILL and BEAM, Circuit Judges, and VAN SICKLE,* Senior District Judge. PER CURIAM — 2 — This appeal concerns an employee's welfare benefit plan governed by the Employees Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Secs. 1001 et seq. (1988). — 3 — On September 5, 1989, appellant's wife, Anastasia Kirkou, was diagnosed as having a right inguinal hernia. On September 26, 1989, she was diagnosed as also having a ventral hernia. Coverage for the Kirkous under the Blue Cross Blue Shield plan, (BCBS) went into effect May 1, 1990. In January of 1991, Mrs. Kirkou had surgery to repair the hernias, and on January 21, 1990, she died as the result of complications related to that surgery. — 4 — Mr. Kirkou submitted a bill for Mrs. Kirkou's treatment, and BCBS denied the claim on the basis of a clause in the policy which reads: — 5 — The Association does not provide benefits under this contract for services, supplies or charges: — 6 — .... — 7 — 4. For a pre-existing condition, disease or illness until the member's coverage has been in effect for 12 months. — 8 — After BCBS rejected the claim, Kirkou waited until the policy had been in effect for 12 months and then re-submitted the claim. It is Kirkou's contention that the plain language of the exclusion clause merely delays the collection of the cost of treating the pre-existing condition until the policy has been in effect for 12 months, but does not bar it. We disagree. — 9 — The key word in the exclusion clause is "until." "Until," as commonly used, means "up to the time that." Webster's Third New International Dictionary, Unabridged (1968). The clear meaning of the clause is that BCBS does not provide benefits under the contract for services, supplies or charges for a pre-existing condition, disease or illness up to the time that the member's coverage has been in effect for 12 months. And, by implication, after that time coverage is provided for that pre-existing condition. The effect of the provision is to give the insurer at least 12 months protection against costs that should have been met before the insurance commitment was made. Such a restriction has a legitimate business purpose and allows meaningful actuarial programming. — 10 — Relying on Kirk v. Provident Life and Acc. Ins. Co., 942 F.2d 504 (8th Cir. 1991), Kirkou also asks this court to hold that the pre-existing condition must be medically significant to trigger the exclusion, and argues that Mrs. Kirkou's condition was not medically significant. The ruling in Kirk is not that narrow. Kirk adopted the Arkansas definition of a pre-existing condition which the Arkansas Supreme Court outlined in State Nat'l Life Ins. Co. v. Stamper, 312 S.W.2d 441 (Ark. 1958). In that decision the court held that "the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself, or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case ...." — 11 — Id. at 505 (emphasis added). — 12 — We agree that this is the proper test. — 13 — Mrs. Kirkou's diagnosis was not only possible before May 1, 1990-the date the policy went into effect-it was actually made in September, 1989. Thus, the hernias were pre-existing conditions under the terms of the policy. The claim was incurred in January, 1991, less than eight months after the policy went into effect, so coverage is barred. — 14 — The decision of the district court dismissing the action is affirmed. Footnotes [-s] * The HONORABLE BRUCE M. VAN SICKLE, Senior District Judge for the District of North Dakota, sitting by designation