Opinion
C.A. No. 00-C-03-029-FSS
Submitted: February 20, 2001
Decided: June 27, 2001
Upon Cross Motion for Summary Judgment as to Declaratory Judgment — Motions GRANTED, in part, DENIED, in part.
Sherry Ruggiero Fallon, Esquire, Attorney for Plaintiff.
James S. Yoder, Esquire, Attorney for Defendants.
OPINION
This case concerns whether a no-fault automobile insurance policy's personal injury protection, PIP, provisions cover in vitro fertilization, IVF. David Amundson was injured in a car accident and made claims against Liberty Mutual Fire Insurance Company for medical expenses under a Liberty Mutual policy's PIP coverage. Liberty Mutual seeks a declaratory judgment of its rights and remedies under its auto insurance contract. In response, the Amundsons move for summary judgment seeking the same relief, but in their favor.
I.
On February 4, 1998, David Amundson was a passenger in his wife's car. The car was involved in an accident and both Amundsons suffered severe injuries. Specifically, David's injuries included,
extensive blunt force injury to the torso with retroperitoneal hemorrhaging, a ruptured bladder, a ruptured urethra, lacerations of the spleen, lacerations of the liver, two fractured ribs, a fractured sacrum and a herniated disc in the lumbar spine.
Also, David suffers "obstructive azoospermia," a permanent condition rendering him unable to conceive through sexual intercourse. David's treating physicians attribute his condition to the auto accident.
A valid auto insurance contract between the Amundsons and Liberty Mutual existed when the accident occurred. The Policy had "First Party Benefit Coverage Limits of 50,000/100,000." Liberty Mutual applied $38,523.83 from the PIP policy's $50,000 limit for David's lost wages and medical expenses due to the accident. He has $11,476.17 PIP coverage remaining. Liberty Mutual applied $14,650.73 from the PIP policy's $50,000 limit for David's wife, Jhennifer. She has $35,349.27 remaining PIP coverage.
Within two years after the accident, from June 22, 1999 to October 7, 1999, the Amundsons successfully conceived using the IYF technique Intra Cytoplasmic Sperm Injection, ICSI.
The IVF process surgically removes an egg from the female's ovary and it is fertilized with the male's sperm outside the body. The fertilized egg is then placed in the female. ICSI, used by the Amundsons, is the latest technique. It uses a "more invasive sperm collection method" than IVF. So far, this is the first and only IVF/ICSI procedure they have undergone. of the $18,528.13 IVF/ICSI expenses, the Amundsons paid $14,069.73 out-of-pocket, the balance was paid by their health carrier.
In their brief, the Amundsons note that the balance was paid "in that a portion of the first cycle of procedures was for making the initial diagnoses of David's infertility. [Co-Defendant health carrier] covered such diagnostic procedure expenses, but did not cover IYF costs." According to the Amundsons, within the two-year post-accident period, the Amundson's health care providers told Liberty Mutual that "additional cycles of ICSI/TESA-IVF surgeries and related treatments are medically necessary if the Amundsons are to have more children."
II. A. Defendants' Contentions
As stated above, due to the accident, David Amundson cannot father a child without IVF. The Amundsons claim that their insurance PIP covers the procedure and their IVF medical expenses should be paid by Liberty Mutual. The Amundsons want Liberty Mutual to reimburse them for expenses from the first IVF procedure. Further, they want Liberty Mutual to "provide any PIP coverage remaining" to pay for any "IVF surgeries and related procedures" they may undergo in the future. They claim a right to the remaining PIP funds regardless of whether they are beyond the two-year window for PIP benefits.
B. Plaintiff's Contentions
Liberty Mutual argues that it is not liable for IVF expenses. It maintains that under its insurance policy and 21 Del. C. § 2118(a)(2) it is "only required to compensate an insured for `reasonable and necessary expenses incurred within two years from the date of the accident.'" Further, Liberty Mutual argues that Amundson's IVF medical expenses "are not `reasonable and necessary expenses' resulting from prescribed medical treatment, but were merely for their comfort, convenience or other personal reasons."
III.
Under Delaware law, summary judgment motions require the Court to determine whether there are any genuine issues of material fact. The Court must consider the facts in a light most favorable to the non-moving party "accept[ing] as established all undisputed factual assertions, made by either party, and accept[ing] the non-movant's version of any disputed facts." The moving party has the burden to present evidence demonstrating no issue of material fact. If that burden is met, the non-moving party must show evidence demonstrating a genuine material issue of fact. Summary judgment is granted only when no material issue of fact exists.
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979).
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992).
Id. at 99-100.
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962).
Id.
Merrill, 606 A.2d at 99 (citing Moore).
Delaware's Declaratory Judgment Statute, provides a "means for securing judicial relief in an expeditious and comprehensive manner." The statute is "entitled to a liberal application." Additionally, four elements are required to consider a controversy for declaratory judgment:
10 Del. C. § 6501-6513.
Hoechst Celanese Corp. v. Nat'l Union Fire Ins. Co., Del. Super., 623 A.2d 1133 (1992) (citing Stabler v. Rarnsay, Del. Supr., 88 A.2d 546 (1952)). See also Rollins Int'l Inc. v. Int'l Hydronics Corp., Del. Supr., 303 A.2d 660, 662-663 (1973) (citing Marshall v. Hill, Del. Supr., 93 A.2d 524 (1952)).
Stabler, 88 A.2d at 557.
(1) It must be a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; (4) the issue involved in the controversy must be ripe for judicial determination.
Rollins Int'l Inc. v. Int'l Hydronics Corp., Del. Supr., 303 A.2d 660, 662-663 (1973) (citing Marshall v. Hill, Del. Supr., 93 A.2d 524 (1952)); Hoechst, supra.
The Delaware PIP statute, also is construed liberally in favor of universal coverage, as a public policy goal. Section (a)(2)a. 1. provides:
21 Del. C. § 2118.
Morgan v. State Farm Mut. Auto. Ins. Co., Del. Supr., 402 A.2d 1211, 1215 (1979).
[c]ompensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for: 1. Medical, hospital, dental, surgical, medicine, x-ray, ambulance, prosthetic . . . services.
21 Del. C. § 2118(a)(2)a.1.
The statute has two purposes. One, to ensure those injured receive, "the economic benefit of immediate payment without awaiting protracted litigation." Two, "to impose on the no-fault carrier . . . not only primary but ultimate liability for the payment of [insured's] medical bills to the extent of [carrier's] unexpended PIP benefits." Further, "[t]he primary objective of subsection (a)(2)a. . . . is to allow an insured to recover regardless of fault." In summary, the law favors PIP coverage for reasonable and necessary expenses.
United States Fidelity and Guar. Co. v. Neighbors, Del. Supr., 421 A.2d 888, 890 (1980) (quoting DeVincentis v. Maryland Cas. Co., Del. Super., 325 A.2d 610, 612 (1974).
Int'l Underwriters, Inc. v. Blue Cross and Blue Shield of Delaware, Del. Supr., 449 A.2d 197, 200 (1982).
Bass v. Horizon Assurance Co., Del. Supr., 562 A.2d 1194, 1196 (1989); Int'l Underwriters, Inc. v. Blue Cross and Blue Shield of Delaware, Del. Supr., 449 A.2d 197, 199 (1982).
IV.
Other jurisdictions have addressed IVF issues in health insurance and ERISA contexts, but those cases are few and unhelpful. Liberty Mutual relies on Kinzie v. Physician's Liability Ins. Co., but its reliance is misplaced. The plaintiff in Kinzie was naturally infertile. Here, Amundson was rendered infertile due to the auto accident. As discussed below, the decision to undergo IVF may have been Amundson's, but the need for it was precipitated by the accident.
Employee Retirement Income Security Act.
Okla. Ct. App., 750 P.2d 1140 (1988).
Id. at 1141.
The Amundsons also rely on cases from other jurisdictions. Those cases, too, are unhelpful since they involve the courts' interpreting "illness" under specific plans. While the Court takes some comfort in the cases equating infertility with illness, those cases also are not controlling. Here, Amundson was injured in an auto accident, he was not subject to an "illness."
Egert v. Connecticut Gen. Life Ins. Co ., 7th Cir., 900 F.2d 1032 (1990) (Because plan failed to define "illness," denial of plaintiffs IVF treatment was "arbitrary and capricious."); Witcraft v. Sundstrand Health and Disability Group Benefit Plan, Iowa Supr., 420 N.W.2d 785 (1988) (infertility was illness within meaning of plan, so related expenses were covered).
V.
It is indisputable that David Amundson was injured physically in the auto accident. His body was damaged. It is assumed here that before the accident, Amundson could have used his reproductive system to father children. Thanks to the accident, that no longer is possible without medical services.
The argument that IVF is elective misses the point. But for the accident, Amundson could have chosen to have children. After the accident he made the same decision, but to make it happen a medical procedure was necessary. Put another way, PIP serves as a partial substitute for tort litigation. While PIP coverage does not include general damages, it does cover specials. If Amundson were still allowed to sue the tortfeasor, there is no way the other driver's insurance carrier could obtain summary judgment and shift the costs of IVF to Amundson or his health insurance on the ground that IVF is elective.
VI.
It follows that the expenses associated with Jhennifer's IVF also are covered. In order for David's IVF procedure to work, services must be provided to Jhennifer, too. The procedure, in part, is performed on Jhennifer, but the whole thing is necessary because of David's injury. Again, but for the accident, the Amundson's would not have had to pay for medical procedures in order to have children. The costs of IVF is part of the damage calculation.
VII.
Having decided that the Amundson's are entitled to PIP coverage for IVF, the extent of coverage must be considered. The PIP statute has specific limits. One limit concerns time. The law is clear that PIP covers two years. While Liberty Mutual is bound to provide PIP for IVF during the PIP period, its obligation ends there. If the Amundsons incur IVF expenses after the PIP period has ended, that is between them, the tortfeasor and the Amundsons' health insurance carrier.
See 21 Del. C. § 2118(a)(2)a.
VIII.
For the foregoing reasons, Liberty Mutual must provide coverage under its policy for all of the Amundsons' IVF expenses incurred within two years of the accident up to the Policy's PIP limit. Upon submission, the court will enter an order denying Liberty Mutual's motion and granting the Amundsons' cross motion.
IT IS SO ORDERED.