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Trip cancellation insurance: No coverage for pre-existing medical condition

Trip cancellation insurance: No coverage for pre-existing medical condition

In this week’s article, we examine the case of Dombrovskiy v. Travel Guard, 2016 WL 5335258 (N.J.A.D. 2016) in which the plaintiff “paid $3,176.10 for a weeklong trip to St. Lucia for himself and his family. On March 19, 2014, two days before his scheduled departure date (plaintiff) made an on-line purchase of travel insurance from Travel Guard. The policy offered trip cancellation coverage. On May 20, 2014, which was the policy’s effective date and just one before his departure (plaintiff) felt a ‘very strong continuous pain on the left side of [his] mouth’ and sought treatment that same day. His dentist diagnosed him on May 20, 2014, with acute pericoronitis. Following his dentist’s advice not to travel, (plaintiff) cancelled the trip to St. Lucia and, when he was not successful in obtaining a refund for the trip, filed a claim under the travel insurance policy for reimbursement of his expenses. Travel Guard denied the claim under the policy’s pre-existing medical condition exclusion. “Under the policy, a pre-existing medical condition was defined as a medical condition that manifested itself 180 days immediately preceding the policy’s effective date, and included the effective date of the policy. Because (plaintiff’s) illness occurred on May 20, 2014, the policy’s effective date, it constituted a ‘pre-existing medical condition’ as defined by the policy, and was thus excluded from coverage”.

Terror Targets Update

Paris, France

In Rubin & Morenne, Gunman Is Killed in Orly Airport in France After Attacking a Soldier, nytimes.com (3/18/2017) it was noted that “An attack on a soldier at Orly Airport…on Saturday is being treated as a possible act of terrorism…The assailant…had carried out a burst of violence over a period of two hours before being fatally shot (and) had a lengthy police record, including arrests for robbery and drug-related offences and had served time in prison. The shooting at Orly prompted a partial evacuation of the airport, the diversion of all flights and a security sweep to determine whether the assailant had left any explosives at the airport’s two terminals”.

Maiduguri, Nigeria

In Searcey & Gilbertson, Beneath Mask of Normal Nigerian Life, Young Lives Scarred by Boko Haram, nytimes.com (3/18/2017) it was noted that “Boko Haram has abducted many hundreds, if not thousands, of girls and boys across the region, forcing them to fight, cook, to clean and even to bear children. To much of the world, the kidnaping of nearly 300 girls from their school dormitory in the town of Chibok three years ago was the seminal moment in the crisis, followed by another horror: children as young as 7 or 8, being used as suicide bombers. The Nigerian military has made recent gains, pushing into the forests where Boko Haram hides…the war, now in its eighth year”.

Travel Ban Update

In Burns, Federal Judge Blocks Trump’s Latest Travel Ban Nationwide, nytimes.com (3/15/2017) it was noted that “A federal judge in Hawaii issued a nationwide order Wednesday evening blocking President’s Trump’s ban on travel from parts of the Muslin world, dealing a stinging blow to the White House and signaling that Mr. Trump will have to account in court for his heated rhetoric about Islam…[I]n a pointed decision that repeatedly invoked Mr. Trump’s public comments, the judge, Derrick K. Watson of Federal District Court of Honolulu wrote that a ‘reasonable, objective observer’ would view even the new order as ‘issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose’”

No Wild Boar Meat, Please

In de Freytas-Tamura, Radioactive Boars in Fukushima Thwart Residents’ Plan to Return Home, nytimes.com (3/9/2017) it was noted that “They descend on towns and villages, plundering crops and rampaging through homes. They occasionally attack humans. But perhaps most dangerous of all, the marauders carry with them highly radioactive material. Hundreds of toxic wild boars have been roaming across northern Japan where the meltdown of the Fukushima nuclear plant six years ago forced thousands of residents to desert their homes, pets and livestock…Wild boar meat is a delicacy is northern Japan, but animals slaughtered since the disaster are too contaminated to eat. According to tests…some of the boars have shown levels of radioactive element cesium-137 that are 300 times higher than safety standards”.

Off To The Ostrich Races

In Protesters will oppose cruel and abusive ostrich races at Chandler Ostrich Festival, etn.travel (3/8/2017) it was noted that “Protesters representing United Poultry and Arizona Vegan Animal Liberation Activists are urging the Chandler (Arizona) Chamber of Commerce to eliminate the ostrich races-both the chariot and the rodeo style-and focus instead on attractions that reflect Chandler’s evolving high-tech industry and the public’s growing interest in digital attractions…Once said to draw 20,000 visitors, the festival now attracts about 100,000 visitors…Public interest is dwindling in staged performances featuring animals forced to act unnaturally, as witnessed by the demise of RinglingBros. Circus…the ostrich races strip ostriches of their dignity, make them look silly and put them in danger”.

No Raw Milk Cheese, Please

In de Freytas-Tamura, Two People Die after Eating Raw Milk Cheese Made in New York State, nytimes.com (3/10/2017) it was noted that “Two people have died following an outbreak of listeria linked to a popular artisanal raw milk cheese made in upstate New York, the authorities said this week. The deaths occurred in Vermont and Connecticut…Four other people in New York and Florida reported feeling sick after eating Ouleout, the artisanal cheese, which is produced by Vulto Creamery in Walton, N.Y. Illnesses started on dates between Sept. 1 of last year to Jan. 22, the Food and Drug Administration said. All six people were hospitalized and two people died”.

Nasty Wake-Up Call

In Airline passenger burned when headphone battery explodes mid-flight, etn.travel (3/15/2017) it was noted that “A woman’s battery-operated headphones exploded on a flight from Beijing to Melbourne, leaving her with a blackened face and singed hair. Australian officials have warned of the dangers of batteries on flights as a result…Two hours into the flight, the passenger, who had fallen asleep, heard a loud explosion and felt a burning sensation on her face”.

Stay Away From Sudan, Please

In Gettleman, War Consumes South Sudan, a Young Nation Cracking Apart, nytimes.com (3/4/2017) it was noted that “South Sudan’s war and its full ugliness are engulfing, new, previously peaceful areas of the nation, spelling horror for the victims ad signifying something deeper: This country is cracking apart…South Sudan’s conflict started as a power struggle between the country’s political leaders before slipping into a broader feud between the two biggest ethnic groups, the Nuer and the Dinka. But as it enters its fourth year, this war, Africa’s worst, is rapidly sucking in many of the nation’s other ethnic groups, including the Azande, the Shilluk, the Moru, the Kakwa and the Kuku”.

Stay Away From Peru, Please

In Peru needs help. Tourists should stay away after deadly El Nino phenomenon floodings, etn.travel (3/18/2017) it was noted that “The country seems to be unable to immediately deal with the current unexpected flooding disaster and some say, Peru is collapsing. 72 confirmed dead may only be the beginning. Earlier this week weather forecasts on Peruvian TV and Radio…about upcoming dangerous flooding-until a government minister threatened to put weather forecasters in jail and label (them) as terrorists for spreading ‘fake news’”.

The Spirits Of Bangkok

In Osborne, My Bangkok: City of Spirits, nytimes.com (3/11/2017) it was noted that “In a city filled with haunted sites, ghosts are woven into the fabric of daily life…My new prospective home was a fortress like tower with four blue Disney-esque roofs and a vast lobby not unlike the grandiose John Portman hotel atriums of the 1980s. It was called Kiarti Thanee and there was a moat along the front wall. A charming agent showed me to the 15th floor at a vast apartment of 2,000 square feet with a deck that overlooked the deranged towers and spires of the 21st century’s greatest Buddhist metropolis. It was dusk and the villas and gardens below were lit up with 100 spirit houses, the little shrines where the souls of the dead are housed and fed offering of fruits…’Yes’ the lady conceded as we exchanged a handshake that constituted a contract, ‘but I just want to say that the building haunted’. ‘But it’s Bangkok’, I said. ‘Isn’t everything haunted’”.

Shed A Tear For The Great Barrier Reef

In Cave & Gillis, Large Sections of Australia’s Great Reef Are Now Dead, Scientists Find, nytimes.com (3/15/2017) it was noted that “The Great Barrier Reef in Australia has long been one of the world’s most magnificent natural wonders, so enormous it can be seen from space, so beautiful it can move visitors to tears. But the reef, and the profusion of sea creatures living near it, are in profound trouble. Hugh sections of the Great Barrier Reef, stretching across hundreds of miles of its most pristine northern sector, were recently found to be dead, killed last year by overheated seawater. More southerly sections…that barely escaped then are bleaching now, a potential precursor to another die-off that could rob some of the reef’s most visited areas of color and life”.

In The Editorial Board, Shed a Tear for the Reefs, nytimes.com (3/18/2017) it was noted that “Reports that the Great Barrier Reef is dying come ever more frequently, ever more urgently. There is no mystery about the reason-it’s global warming, caused by the fossil fuels we burn. If we stopped heating the oceans, parts of the great reef…and other spectacular coral reefs around the world could still recover. The alternative is to weep at the loss of one of the most spectacular sights on earth”.

Stealing A River In India

In Romig, How to Steal a River, nytimes.com (3/1/2017) it was noted that “My wife spent her childhood summers in Manimala (in the Indian state of Kerala) and all her stories seemed to center on the river: the old stone steps that villagers descended to board a ferry or to take a bath; the neighbors fishing or washing elephants; the flotillas of flowers that drifted downstream after monsoon gales… (Years later) ‘What happened to the river?’ I asked. ‘Sand mafia’, my wife’s cousin…answered. The Manimala…once had a sandy riverbed that in some places was 30 feet deep…But the sand is also a crucial ingredient in concrete and India is urbanizing at a speed and scale virtually unmatched by any country in history. Apartment towers, highways, bridges, skyscrapers, metros, dams: Each of them swallows unimaginable helpings of sand. It could line the rivers or it could form the cities that were rising everywhere alongside them, but it could not do both at once”.

Self-Driving Cars At War

In Wakabayashi, Waymo Asks Court to Block Uber’s Self-Driving Car Project, nytimes.com (3/10/2017) it was noted that “Waymo, the self-driving car business spun out of Google’s parent company last year, asked a federal court on Friday to block Uber’s work on competing self-driving vehicle that Waymo claimed could be stolen technology…Waymo sued Uber last month, accusing the ride-haling company of colluding…to steal crucial parts of Waymo’s technology to accelerate its development of autonomous vehicles”.

In Plugis, Driving Into the Future, Consumer Reports (April 2017) it was noted that “The promise of self-driving cars is that they will see better than humans, never get lost, and almost never crash. Solving the technical, legal and ethical challenges to get us there is more complicated-and fascinating-then most people realize, and the stakes for consumer safety are quite high”.

In Dougherty, Self-Driving Cars Can’t Cure Traffic, but Economics Can, nytimes.com (3/8/2017) it was noted that “But there is one problem autonomous driving is unlikely to solve: the columns of rush-hour gridlock that clog city streets and freeways. If decades of urban planning and economic growth are any guide, the solution is unlikely to come from technology but from something similar to Uber’s surge pricing: charging people more to use driverless cars at rush hour…Traffic is one of the few problems that fabulously wealthy people can’t buy their way out of. This helps explain why Elon Musk, the founder of Tesla and SpaceX, wants to bore subterranean freeways under Los Angeles and build a hyperloop train half the length of California”.

California Driverless Test Vehicles?

In Miller, California Opens Door to Fully Autonomous Vehicle Testing, legaltechnews.com (3/13/2017) it was noted that “Those driverless test cars cruising California streets may soon, in fact, be driverless. The state Department of Motor Vehicles on Friday posted its latest proposed regulations for testing and deploying fully autonomous vehicles in the Golden State…One of the biggest changes from the draft regulations circulated last year is new language that allows companies to test a car without a driver-and, possibly, no stirring wheel”.

Banning Head Scarves

In The Editorial Board, nytimes.com (3/15/2017) it was noted that “The European Court of Justice…allow[ed] employers to ban Muslin women and others who wear signs of their faith. With rising anti-Muslin sentiment in Europe…this decision sends exactly the wrong message. The court’s ruling involved two cases, one brought by a Frenchwoman against her employer and one by a Belgium woman against hers. In both, the women were fired after refusing to remove their head scarves…In a far-reaching decision, the court ruled that ‘an internal rule of private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace does not constitute direct discrimination’…But it left open the possibility of illegal ‘indirect discrimination’ if the ban harmed adherents of a particular religion”.

In Belefsky, Ban on Head Scarves at Work Is Legal, E.U. Court Rules, nytimes.com (3/14/2017) it was noted that “‘It is a very bold step’ said Camino Mortera-Martinez, a research fellow at the Center for European Reform in Brussels, describing the ruling as a landmark decision, if also a political and pragmatic one. ‘Recently we have seen the court being more attentive to the political winds rather than being so legalistic, because of the recognition that the E.U. is at risk of collapse’. She characterized the ruling as further evidence that the European court has been pivoting after years of rulings that favored the rights of minorities”.

Want To Rent A Dog?

In Clark, The next frontier in credit: Renting a dog?, msn.com (3/1/2017) it was noted that “Without quite realizing it, the Sabins had agreed to make 34 monthly lease payments of $165.06 after which they had the right to buy the dog…Miss a payment, and the lender could take the dog back. If Tucker ran away or chased the proverbial fire truck all the way to doggy heaven, the Sabins would be on the hook for an early repayment charge. If they saw the lease through to end. The would have paid the equivalent of more than 70 percent in annualized interest-nearly twice what most credit card lenders charge…Why would anyone walk into a pet store to buy an animal and decide, instead, to lease? Because dogs can be expensive and not everyone who wants a fancy one can afford to pay cash or use a credit card”.

Navigating A Museum

In Vora, How to Navigate a Museum, nytimes.com (2/14/2017) it was noted that “Whether it’s the Louvre in Paris, the Prado Museum in Madrid or the Egyptian Museum in Cairo, museums are major tourist attractions. There are ways to get the most out (of) a museum visit, according to Natasha Schlesinger, an art historian, curator and the founder of ArtMuse, a company that provides private tours of museums and galleries in New York City and Europe…Ms. Schlesinger’s top tips on navigating a museum successfully. Set a Time Limit and Eat Before You Go…Have a Focus…Use Audio Tours…Consider a Private Guide”.

Travel Law Article: The Dombrovskiy Case

In the Dombrovskiy case the Court noted that “(Plaintiff) filed a complaint against Travel Guard for breach of contract… (The trial court dismissed the complaint) finding the claim was excluded by the plain language of the policy which was not ambiguous”. On appeal, plaintiff asserted that the policy was in effect on May 20, 2014 (the date he was diagnosed with acute pericoronitis) and, hence, provides “trip cancellation coverage at 100% for each traveler”.

Rules Of Interpretation

“We consider this travel insurance policy in the context of well-established principals. Insurance policies are considered ‘contracts of adhesion’ and as such, are ‘construed liberally in [the insured’s] favor’ to provide coverage ‘to the full extent that any fair interpretation will allow’…’If the policy terms are clear, courts should interpret the policy as written and avoid writing a better insurance policy than the one purchased’…’A ‘genuine ambiguity’ arises only ‘where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage’…If there is an ambiguity in the insurance contract, we ‘interpret the contract to comport with the reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning’”.

Policy’s Effective Date

“Section I defined the policy’s effective date: ‘Effective Date: Trip cancellation and Cancel for Any Reason coverages will be effective at 12:01 a.m. Standard Time on the date following payment to the Company of any required plan cost’. (Plaintiff) [aid for the travel insurance policy on May 19, 2014, which made the policy’s effective date May 20, 2014. Although there was no mention of exclusions from coverage for pre-existing medical conditions within the effective date section, the ‘Table of Contents’ immediately above Section I set forth that the policy’s ‘Exclusions and Limitations’ could be found in Section IV”.

Pre-Existing Medical Condition

“The ‘Exclusion and Limitations’ set forth in Section IV provided that the ‘plan does not cover any loss caused by or resulting from’ an enumerated list of specific exclusions (including) ‘preexisting medical condition’. The Section provided “The Company will not pay for any loss or expense incurred as the result of an Injury, Sickness…of an Insured…which, within the 180 day period immediately preceding and including the Insured’s coverage effective date: (a) first manifested itself, worsened, became acute or had symptoms which would have prompted a reasonable person to seek diagnosis, care or treatment; (b) for which care or treatment was given or recommended by a Physician; © required taking prescription drugs or medicine…”.

Policy Exclusion Clear

“The plain language of the policy excluded coverage for pre-existing medical conditions. That definition included the effective date of the policy. We are to give the ‘words of an insurance policy…their plain, ordinary meaning’…This language is not unclear or susceptible of two different interpretations. We discern nothing about the ‘phrasing of the policy [that was] so confusing that the average policyholder cannot make out the boundaries of coverage’…Because we are not to write a different policy when the language is clear, we are constrained to apply the language as written to deny (plaintiff’s) claim because his medical condition occurred on the policy’s effective date, which then was excluded from coverage”.

Weeding Out Potential Insurance Fraud

“At oral argument, counsel for Travel Guard noted the anti-fraud nature of this provision. The intent behind the policy ‘is to prevent a situation where someone can buy insurance when they’re already feeling some type of illness and then receive full coverage for the loss because they can’t make a trip prior to and including the effective coverage date’. We think it reasonable that insurance consumers expect limitations in policies intended to week out fraudulent claims. Insurance fraud has been described as ‘a problem of massive proportions that…results in substantial and unnecessary costs to the general public in the form of increased rates’”.

Different State Variations

“It is clear the Travel Guard policy was subjected to certain variations depending upon the state in which it was offered. The policy itself included ‘State Notices’ in Section VI for consumers in specific states. In Connecticut and Idaho, the policy’s definition of pre-existing condition excluded the policy’s effective date, while in the District of Columbia and North Carolina, the polices continued to permit Travel Guard to include the effective within the exclusion. It does not mean there is an ambiguity in the language of the policy merely because the policy forms lack uniformity among the states. Rather, this is a reflection of the state by state regulation of insurance intended to protect consumers, with the variation in language neither setting a ceiling or a floor”. Trial court decision denying coverage affirmed.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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