Brauer v. Bankers Life and Casualty Company
Filing
57
ORDER granting Defendant's motion for summary judgment, Doc. 46 , and denying Plaintiff's motion for summary judgment, Doc. 48 . Signed by Judge Nanette Laughrey on 8/1/2016. (Hatting, Elizabeth)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
IN RE THE ESTATE OF ROBERT J.
)
BRAUER, PERSONAL REPRESENTATIVE )
PATRICIA B. ETIENNE,
)
)
Plaintiff,
)
)
v.
)
)
BANKERS LIFE AND CASUALTY
)
COMPANY,
)
)
Defendant.
)
No. 2:15-cv-04082-NKL
ORDER
Pending before the Court are the parties’ cross motions for summary judgment,
Docs. 46 and 48.
For the following reasons, Defendant’s motion is granted and
Plaintiff’s motion is denied.
I.
Undisputed Facts
A. Brauer’s Claims History
In January 2009, Robert Brauer1 purchased a Limited Benefit Convalescent Care
Policy, Policy No. 209,016,196 (“the Policy”), from Brenda Welsh, a sales agent for
Defendant Bankers Life and Casualty Company. On February 23, 2009, the Policy was
amended to increase the benefit and monthly premium amounts.
1
Brauer passed away on November 9, 2015. His estate is now represented by his sister,
Patricia B. Etienne.
Beginning in March 2010, Brauer required nursing home care services for diabetes
and progressive dementia. He submitted an Application for Long Term Care Benefits,
seeking reimbursement under the Policy for the care he received. Bankers Life paid him
benefits totaling $72,000 for Covered Expenses incurred between March 22, 2010 and
October 31, 2012.
Brauer continued to require nursing home care services after October 31, 2012
through his death on November 9, 2015. He requested reimbursement for Covered
Expenses received after October 31, 2012, but Bankers Life refused to make any further
payments, stating that the Maximum Benefit had been reached for that period of expense.
On October 2, 2014, Brauer’s counsel sent a Claim for New Period of Expense to
Bankers Life, but the claim was denied in a letter dated November 21, 2014. Brauer
subsequently appealed this denial, but the appeal was denied. All monthly premiums
were paid on Brauer’s Policy through his death on November 9, 2015.
B. Brauer’s Policy Terms
Under the operative terms of the Policy at the time Brauer first submitted his
claim, the Maximum Benefit for Any One Period of Expense was $72,000; the Lifetime
Maximum Benefit was $144,000. The Policy defines these terms as follows:
“Any One Period of Expense” begins when a Family Member first
incurs a charge for Covered Services under this policy. It ends on
the earlier of: (a) the date the Family Member has, for 180
consecutive days, not received or required Covered Services for the
same cause or causes for which the previous Period of Expense
began; (b) the date the Maximum Benefit has been exhausted; OR
(c) the date the Lifetime Maximum Benefit has been exhausted.
2
“Lifetime Maximum Benefit” means the maximum amount of
benefits We’ll pay a Family Member for all Covered Expenses for
all Period of Expenses. This amount is equal to two times the
Maximum Benefit Amount for Any One Period of Expense.
“Maximum Benefit” means the maximum amount We’ll pay a
Family Member for the combined total of all Covered Expenses
during Any One Period of Expense. This amount is equal to the
Maximum Daily Benefit amount times the Maximum Benefit
Multiplier. The Maximum Benefit is shown in the Schedule.
[Doc. 49-3, p. 14].
The Policy states under the heading “CONDITIONS ON
ELIGIBILITY FOR BENEFITS” that “We won’t pay more than the Maximum Benefit
for Any One Period of Expense for the total of all Covered Expenses. . . . We won’t pay
more than the Lifetime Maximum Benefit over the lifetime of the policy.”
Later on in the Policy, under the heading “RESTORATION OF POLICY
BENEFITS,” it noted:
This policy’s Maximum Benefit for Any One Period of Expense will
be restored when a Family Member no longer requires or receives
treatment or services for 180 consecutive days for the same cause or
causes for which a previous Period of Expense began. . . . The
Lifetime Maximum Benefit does not restore.
[Doc. 49-3, p. 19].
II.
Discussion
Summary judgment is appropriate if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). There is no dispute of material
fact in this case. Therefore, the only question is whether Brauer’s Policy included
coverage for the expenses he incurred after October 31, 2012.
3
A. Interpretation of Insurance Contracts in Missouri
The interpretation of an insurance policy is a question of law to be determined by
the Court. Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 903 (Mo. Ct. App. 2015).
Missouri courts read insurance contracts “as a whole and determine the intent of the
parties, giving effect to that intent by enforcing the contract as written.” Thiemann v.
Columbia Pub. Sch. Dist., 338 S.W.3d 835, 840 (Mo. Ct. App. 2011). To determine the
intent of the parties, the language in the contract is to be read according to its plain and
ordinary meaning. Mendota, 456 S.W.3d at 903. To determine the ordinary meaning of
a term, the Court may consult a standard English language dictionary.
Farmland
Industries, Inc. v. Republic Ins. Co., 941 S.W.2d 505, 508 (Mo. 1997). “‘Definitions,
exclusions, conditions, and endorsements are necessary provisions in insurance policies’
and will be enforced where they are clear and unambiguous . . . .” American States
Preferred Ins. Co. v. McKinley, 2009 WL 1139122, at *9 (W.D. Mo. April 28, 2009).
If an ambiguity exists the policy language will be construed against the insurer.
Id. at 904. “‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty in
the meaning of the language of the policy.’” Fanning v. Progressive Northwestern Ins.
Co., 412 S.W.3d 360, 364 (Mo. Ct. App. 2013) (quoting Seeck v. Geico Gen. Ins. Co.,
212 S.W.3d 129, 132 (Mo. banc 2007)). “‘To test whether the language used in the
policy is ambiguous, the language is considered in the light in which it would normally
be understood by the lay person who bought and paid for the policy.’” Blumer, 340
S.W.3d at 219 (quoting Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo.
Ct. App. 2004)).
4
B. The Policy Unambiguously Limited Brauer’s Recovery to $72,000
In interpreting the Policy, the Court must first determine whether it is ambiguous
such that it should be construed in the light most favorable to the Plaintiff. When
interpreting a contract, the Court must seek to give meaning to all words and provisions
contained therein.
The Policy clearly states that Bankers Life will not pay “more than the Maximum
Benefit for Any One Period of Expense for the total of all Covered Expenses.” “Any
One Period of Expense” begins when the insured “first incurs a charge for Covered
Services under this policy. It ends on the earlier of: (a) the date the Family Member has,
for 180 consecutive days, not received or required Covered Services for the same cause
or causes for which the previous Period of Expense began; (b) the date the Maximum
Benefit has been exhausted; OR (c) the date the Lifetime Maximum Benefit has been
exhausted.” [Doc. 49-3, p. 14 (emphasis added)]. This provision unambiguously states
that a period of expense will end on the date the Maximum Benefit has been exhausted if
that is the earliest occurrence of the three listed. This provision does not give the insured
or the insurance company the option of choosing among the termination provisions when
determining when the period of expense ends. As Brauer incurred the Maximum Benefit
for Any One Period of Expense, $72,000 in coverage, before he met either of the other
two limitations, his period of expense concluded on the date he incurred $72,000 in
Covered Expenses.2
2
Plaintiff implies at multiple points in the briefing that Bankers Life had a duty to
explain the Policy provisions to Brauer. Missouri courts have consistently disclaimed an
5
The Court must next decide whether this provision permitted Brauer to
immediately initiate a second period of expense after reaching the first $72,000 in
Covered Expenses. The Policy states that “‘Any Period of One Expense’ begins when a
Family Member first incurs a charge for Covered Services under this policy.” According
to Bankers Life, as Brauer only began to incur charges for Covered Services one time,
prior to his initial claim under the Policy, this provision prohibited him from immediately
reinitiating a new period of expense. Plaintiff argues that a new period of expense begins
once an insured first incurs additional Covered Expenses.
According meaning to all words in the Policy, it is clear that “Any One Period of
Expense” cannot be immediately followed by a second period of expense for the same
covered expenses.
This interpretation would necessitate ignoring a multitude of
provisions in the Policy.
First, as Bankers Life notes, the Policy states that a period of expense begins when
the insured “first incurs a charge for Covered Services.” Plaintiff’s interpretation would
have the Court insert an additional word into the definition, reading the provision to state
that a period of expense begins when the insured first incurs a new charge for Covered
Expenses.3 Brauer incurred ongoing charges for same covered expenses after he made
his claim under the Policy in March 2010 through the time of his death; as his ailments
insurance broker’s duty to advise the insured on the terms of an insurance policy. See
Emerson Electric Co. v. Marsh McClennan Co., 362 S.W.3d 7, 12-13 (Mo. 2012);
Wilmington v. Lexington Ins. Co., 678 S.W.2d 865, 872 (Mo. Ct. App. 1984); Murphy v.
Northwest Mutual Ins. Co., 2005 WL 1421789, at *4 (W.D. Mo. June 13, 2005).
3
Plaintiff references this rephrasing a multitude of times throughout the briefing, reading
the Policy to state that a new period of expense begins once the insured “first incurs
additional Covered Expenses.”
6
were the same and he never stopped receiving treatment after treatment began in March
2010, he only “first incur[red] a charge for Covered Expenses” one time in March 2010.
Plaintiff’s interpretation would also have the Court ignore that numerous terms are
defined independently in the contract. If Plaintiff’s interpretation was correct, there
would be no reason for the “Any One Period of Expense” provision to distinguish
between an ending on “the date the Maximum Benefit has been exhausted” and “the date
the Lifetime Maximum Benefit has been exhausted,” as an insured would be permitted to
immediately initiate a new period of expense to reach the Lifetime Maximum Benefit
upon receipt of the Maximum Benefit. Plaintiff’s interpretation would also have the
Court ignore the separate Policy limits clearly set out in the Schedule. If an insured could
immediately reinitiate a new period of expense after reaching the Maximum Benefit for
Any One Period of Expense, there would be no need for the Schedule to distinguish
between the Lifetime Maximum Benefit and the Maximum Benefit for Any One Period
of Expense, as the Lifetime Maximum Benefit would be functionally the only limitation
on recovery.4
4
Plaintiff contends that the benefits Schedule, definition of “Any One Period of
Expense,” and sections of the Policy addressing benefits eligibility and covered expenses
provide coverage to Plaintiff which is taken away by Bankers Life’s interpretation of the
Restoration of Policy Benefits provision, which results in an ambiguity in the Policy that
should be resolved in favor of coverage to the Plaintiff. As discussed in the remainder of
this order, these provisions are not ambiguous when read in their entirety. According
meaning to all terms in the Policy and reviewing the comprehensive claims procedure
makes clear that policyholders are not guaranteed be able to recover the Lifetime
Maximum Benefit in all circumstances. The limitations in the Policy are entirely
consistent with the structure of other insurance policies. It is common for insurance
policies to include, for example, caps on coverage for individuals, as well as overall
limits on recovery. If a motorist owns an auto insurance policy with a $100,000 cap on
7
In order to accord meaning to every word in the Policy, the Maximum Benefit for
Any One Period of Expense must be read to impose some limitation on recovery which
differs from the Lifetime Maximum Benefit. The parameters of that limitation are set out
in the Restoration of Policy Benefits provision, which states that “This policy’s
Maximum Benefit for Any One Period of Expense will be restored when a Family
Member no longer requires or receives treatment or services for 180 consecutive days for
the same cause or causes for which a previous Period of Expense began.”
Plaintiff contends that the Restoration of Policy Benefits provision is insufficient
for a number of reasons. First, Plaintiff argues that the word restore means “to bring
back” into existence or original condition, and that existing coverage would not require
restoration.
This argument, however, ignores the difference between the Maximum
Benefit for Any One Period of Expense and the Lifetime Maximum Benefit. While the
Lifetime Maximum Benefit does not require restoration simply because the Maximum
Benefit for Any One Period of Expense has been reached, in order for the insured to
make an additional claim under the Maximum Benefit for Any One Period of Expense
provision, the Maximum Benefit recovery limit must be restored.
Plaintiff next argues that the language of the Restoration of Policy Benefits
provision states only that the maximum benefit amount is restored when the provision is
satisfied, not the insured’s eligibility for beginning a new period of expense.
The
recovery per individual and a $300,000 cap on recovery for all passengers, the motorist is
not entitled to a $300,000 recovery if he is the only person injured in an accident.
Though the insured might incorrectly assume the policy affords him $300,000 in
coverage in all circumstances, that assumption is irrelevant if it does not comport with the
terms of the policy.
8
difference between the restoration of the maximum benefit amount and the insured’s
eligibility for beginning a new period of expense is no more than semantic and does not
change the coverage available under the Policy. As discussed above, the Any One Period
of Expense provision clearly states that it “begins when a Family Member first incurs a
charge for Covered Services under this policy.” Brauer only began to incur charges once,
when he started receiving treatment for diabetes and progressive dementia and made a
claim under the Policy. Therefore, after Brauer received his $72,000 in benefits, he could
not automatically make a claim for a new period of expense under this provision because
the triggering condition for a new period of expense, first incurring a charge for covered
services, was not satisfied.5
Whether the Restoration of Policy Benefits provision functions to restore the
maximum benefit amount, thereby allowing the insured to recover the maximum benefit
amount for a second time without having to “first incur[] a charge” for services under the
Policy, or permits the insured to begin a new period of expense by starting over and
incurring a new “first” charge for covered services is irrelevant.
5
Under both
The fact that Brauer’s claims did not entitle him to the full Lifetime Maximum Benefit
available under the Policy does not make the Policy benefits illusory. Had Brauer gone
180 days without requiring or receiving care for the condition which triggered the first
Period of Expense he would have been entitled to an additional $72,000 under the Policy.
The fact that Brauer’s specific ailments did not lend themselves to a 180 day reprieve
does not mean that the triggering condition to renew the Maximum Benefit is itself
unreasonable or that satisfaction of the 180 days without services will in most cases be
impossible. It is entirely possible, for example, that an insured could require extended in
home or nursing home care for a severe injury or invasive medical procedure, which
would eventually enable the insured to live without assisted care for at least 180 days. If
the insured subsequently underwent another procedure or developed an ailment such as
Brauer’s, the Policy would then entitle the insured to an additional $72,000 to reach the
Lifetime Maximum Benefit.
9
interpretations, the Restoration of Policy Benefits provision permits an insured to recover
the Maximum Benefit a second time only “when a Family Member no longer requires or
receives treatment or services for 180 consecutive days for the same cause or causes for
which a previous Period of Expense began.” As Brauer never satisfied this condition, he
was not permitted to recover the Maximum Benefit a second time.
Kasoff v. Bankers Life and Casualty Company, 2014 WL 6065932 (C.D. Cal. Nov.
13, 2014), supports the Court’s interpretation of the Policy. In Kasoff, the plaintiff
incurred a number of consecutive injuries which entitled her to coverage under language
very similar to that in Brauer’s Policy. The Kasoff policy specifically defined “Any One
Period of Expense” as “begin[ning] when the Insured first incurs a charge for expenses
covered under this policy. It ends when, for six consecutive months, the Insured is no
longer receiving Long-Term Care Services for the same cause or causes for which the
previous Period of Expense began.” The Kasoff Court noted that “[e]xpanding the Policy
to reset the Maximum Benefit amount payable for additional claims without regard to
benefits already paid under the Policy . . . would increase the insured’s benefit
exponentially and well beyond the plain meaning of the Policy.” Id. at *5. As in Kasoff,
Brauer’s Policy set specific limitations on the first Maximum Benefit payout which could
only be exceeded to reach the Lifetime Maximum Benefit when the insured went 180
days without covered treatment.
Plaintiff contends that Kasoff underscores the ambiguity in Brauer’s Policy
because the Kasoff policy included the durational limitations on “Any One Period of
Expense” within the definition itself, rather than including a separate provision. The fact
10
that the Kasoff policy may have included a clearer statement of the duration of Any One
Period of Expense does not mean, however, that the terms of Brauer’s Policy are
ambiguous. Brauer’s Policy specifically distinguished between the Maximum Benefit
and Lifetime Maximum Benefit and stated that “Any One Period of Expense” ended
when the Maximum Benefit was reached. The only reasonable interpretation of the
Policy when considered in its entirety is that the insured does not become eligible to
receive the Maximum Benefit for a second time to reach the Lifetime Maximum Benefit
until the insured goes 180 days without treatment for Covered Expenses. See Chembulk
Trading LLC v. Chemex Ltd., 393 F.3d 550, 555 n.6 (5th Cir. 2004) (noting that a
document was “not ambiguous because its language as a whole is clear, explicit, and
leads to no absurd consequences, and as such it can be given only one reasonable
interpretation”).
The Court’s interpretation of the Restoration of Policy Benefits provision is
further bolstered by the Policy’s “Elimination Period.” “‘Elimination Period’ means the
number of days a Family Member must receive covered Facility Care or Home and
Community Based Care services before benefits are payable. The Elimination Period has
to be satisfied for Any One Period of Expense for each Family Member under this policy.
. . . It restores when benefits are restored.” [Doc. 49-3, p. 13 (emphasis in original)].
Functionally, the Elimination Period requires that the insured receive 30 days of services
before Bankers Life is required to pay benefits. The Elimination Period is referenced in
the Schedule prior to the Policy limits on the Maximum Benefit for Any One Period of
Expense and the Lifetime Maximum Benefit.
11
Even if Plaintiff’s interpretation of the Policy was correct and Brauer was
permitted to immediately reinitiate a claim under the Policy after his Maximum Benefit
for Any One Period of Expense was satisfied, Brauer would still be required to satisfy the
Elimination Period, as clearly set out in the Schedule.
The Policy’s definition of
Elimination Period makes clear that the 30 day period may not restart after an insured
receives the Maximum Benefit for Any One Period of Expense until after “benefits are
restored.” This provision is unambiguous in its reference to the Restoration of Policy
Benefits provision, which sets out how the insured can recover the Maximum Benefit for
Any One Period of Expense for a second time.
As the Policy clearly limited Brauer’s recovery on his claim to $72,000, Bankers
Life was not required to compensate Plaintiff for expenses incurred in excess of $72,000,
and the insurance company’s refusal to pay was not vexatious.
See Progressive
Preferred Ins. Co. v. Reece, 2016 WL 3176482, at *6 (W.D. Mo. June 7, 2016)
(“[W]here an insurer had no duty to pay under the insurance policy, there cannot be a
claim for vexatious refusal to pay.”).
B. The Policy Is Not a Long-Term Care Insurance Policy
Plaintiff contends that the Policy constitutes a long-term care insurance policy as
defined by Missouri law. Long-Term Care Insurance Policies are statutorily required to
meet certain standards and contain certain provisions.
The Missouri long-term care insurance policy statute, R.S.Mo. § 376.110.2(5),
states that long-term care insurance is “any insurance policy or rider advertised,
marketed, offered or designed to provide coverage for not less than twelve consecutive
12
months . . . . [A]ny product advertised, marketed, or offered as long-term care insurance
shall be subject to the provisions of sections 376.1100 to 376.1130.”
The terms of Brauer’s Policy make clear that it is not a long-term care insurance
policy. On the Policy Schedule, which sets out the limitations on Bauer’s coverage, it
notes that the Maximum Benefit for Any One Period of Expense is “Based upon a
Maximum Benefit Multiplier of 360.” This provision makes clear that Brauer’s $72,000
Maximum Benefit for Any One Period of Expense was calculated by multiplying the
Policy’s $200 Maximum Daily Benefit by 360 days. As 360 days is less than one year,
the Policy was not designed to provide coverage for at least twelve consecutive months to
qualify as a long-term care insurance policy under the statute. Though Brauer did not
receive $200 per day to reach the Maximum Daily Benefit and therefore had coverage for
more than one year, the statute does not indicate that the actual duration over which an
insured receives benefits is the operative issue for determining whether a policy qualifies
as long-term care insurance. The design of the Policy was clearly not to guarantee
coverage for at least twelve consecutive months.
Moreover, on page one of the Policy it clearly states that “This policy is not a . . .
Long-Term Care Insurance Policy.” [Doc. 49-3, p. 1 (emphasis in original)]. It also
states that “The insurance [provided by the Policy] may NOT cover all of the costs
associated with long term care incurred by You during the period of coverage. You are,
therefore, advised to READ THIS POLICY CAREFULLY AND REVIEW ALL
POLICY LIMITATIONS!” Id. (emphasis in original). Plaintiff does not contend at
13
any point that Brauer was marketed the Policy as a long-term care policy.6 Given the
Policy’s clear disclaimer that it is not a long-term care insurance policy and notation on
the Policy Schedule that it is based on a 360 day Maximum Benefit Multiplier, the Policy
does not qualify as long-term care insurance under R.S.Mo. § 376.110.2(5).7
Plaintiff contends that the Policy constituted a long-term care insurance policy
because the District Court of Arizona held in Rowe v. Bankers Life and Casualty
Company, 572 F.Supp.2d 1138 (D. Ariz. 2008), that nearly identical language constituted
a long-term care policy. However, Rowe was decided under the Arizona long-term care
policy statute, which defined long-term care insurance based solely on the services
covered by the policy, not the duration of the marketed coverage. If an insurance policy
marketed in Arizona included the coverage set out in the long-term care insurance statute,
the insurer was required to provide coverage for at least 24 months. The Missouri longterm care policy statute, however, defines long-term care policies by the duration of
coverage provided. As discussed above, Brauer’s Policy did not meet the Missouri
6
Plaintiff does state that when Brauer began to require nursing home care services in
March 2010 he submitted an Application for Long Term Care Benefits. However,
Plaintiff does not contend that the title of this application constituted a marketing of the
Policy as a long-term care policy. As Plaintiff does not indicate at any point that the
Policy was marketed to Brauer as providing long-term care benefits, the Court concludes
that the title of this benefits application form alone does not indicate that the Policy
constituted a long-term care policy such that it was required to satisfy the long-term care
insurance statutes.
7
As the Policy does not constitute a long-term care insurance policy, Plaintiff’s
arguments concerning 20 CSR 400-4.100(6)(E)’s requirement that long-term care
insurance policies “set forth a description of the limitations or conditions . . . in a separate
paragraph of the policy or certificate and shall label such paragraph ‘Limitations or
Conditions on Eligibility for Benefits’” is irrelevant.
14
statutory definition to be considered a long-term care policy, and therefore Rowe is not
dispositive of this case.
C. The Restoration of Policy Benefits Provision Is Not an Exclusion or
Condition on Eligibility for Benefits
Plaintiff contends that even if the Policy is not considered to be a long-term care
insurance policy, it still violates R.S.Mo. 376.775.1(5), which requires exceptions and
reductions of indemnity to be “set forth in the policy and . . . either included with the
benefit provision to which they apply, or under an appropriate caption such as
‘EXCEPTIONS’, or ‘EXCEPTIONS AND REDUCTIONS’, provided that if an
exception or reduction specifically applies only to a particular benefit of the policy, a
statement of such exception or reduction shall be included with the benefit provision to
which it applies.”8
An exclusion in an insurance policy “exclude[s] from coverage otherwise covered
risks.” Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 163 (Mo. 2007).
Exclusions are not synonymous with limits of liability, which “are common in any
insurance plan regardless of policy type and do not create a conflict with the grant of
insurance.” Staufenbiel v. Amica Mut. Ins. Co., 2015 WL 14569876, at *4 (E.D. Mo.
March 30, 2015). The Policy limit being disputed by the parties does not constitute a
coverage “exclusion” or “exception” because it does not set out an instance in which an
otherwise covered service be excluded from coverage.
8
The Policy does contain
To the extent that this statute requires the Restoration of Policy Benefits provision to be
clearly identified in the Policy, the provision satisfied the statute. The provision is clearly
identified under the heading “RESTORATION OF POLICY BENEFITS,” along with
all of the other headings setting out the parameters on Brauer’s coverage.
15
exclusions which are not at issue in this lawsuit. For example, it states that Bankers Life
will not pay for expenses incurred due to war, intentionally self-inflicted injuries while
sane, or for services or supplies provided by a member of the immediate family or a
person who ordinarily lives in your home. [Doc. 49-3, p. 18]. These exclusions address
situations in which Bankers Life will not pay for facility care or home health care which
would otherwise be covered by the terms of the Policy.
Unlike an exclusion, the Restoration of Policy Benefits provision sets out the
circumstances under which the insured will be able to exceed the $72,000 Maximum
Benefit for Any One Period of Expense to recover the Lifetime Maximum Benefit. Just
as the Lifetime Maximum Benefit does not constitute a coverage “exclusion” for
expenses in excess of $144,000, the Restoration of Policy Benefits provision does not
exclude expenses in excess of the Maximum Benefit for Any One Period of Expense, but
outlines the circumstances under which the Maximum Benefit limit may be recovered for
a second time.
D. The Policy Does Not Violate the MMPA
Plaintiff last argues that Bankers Life’s marketing of the Policy amounts to the use
of deception, fraud, false pretense, false promise, misrepresentation, or unfair practice
pursuant to the Missouri Merchandising Practices Act (“MMPA”). However, the MMPA
specifically disclaims any liability for “[a]ny institution, company, or entity that is subject
to chartering, licensing, or regulation by the director of the department of insurance . . . .”
R.S.Mo. § 407.020.2(2). Bankers Life is regulated by the Department of Insurance, and
therefore the MMPA does not apply to Plaintiff’s claim.
16
III.
Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment is
granted on all claims and Plaintiff’s motion for summary judgment is denied.
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: August 1, 2016
Jefferson City, Missouri
17
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