11th Circuit Tackles ‘Pre-Existing Condition’ Claim Denial

ATLANTA (CN) - A lawyer facing a $400,000 bill for cancer treatment fought Wednesday at the 11th Circuit against her insurer’s definition of pre-existing condition.

Dawn Jones obtained the policy at issue from Golden Rule Insurance before she received an official diagnosis of breast cancer, but after she had gotten a mammogram during her annual doctor's visit.

“She had an inconclusive mammogram,” Jennifer Auer Jordan, an attorney for Jones, said Wednesday at oral arguments before the federal appeals court. “There was no knowledge [of cancer] and there was not symptomatology when she entered into the insurance contract.”

When Jones underwent the first mammogram in 2014, she was uninsured and working at the Atlanta law firm King & Spalding.

She took out the six-month policy with Golden Rule for $168 a month after leaving the firm to “hang a shingle” and open her own practice. The policy was in place when a report from her earlier doctor's visit advised that she get a second mammogram, which then led to her cancer diagnosis. Golden Rule, a division of UnitedHealth Group Inc., denied her insurance claim after collecting the full six months of premiums.

Though she claims that denial amounted to a breach of duty, U.S. Circuit Judge Julie Carnes emphasized at Wednesday’s hearing that Jones was not paying for comprehensive coverage.

“This is a very cheap policy,” she said. “It’s assumed they’ll have a stiff pre-existing clause.”

U.S. Circuit Judge Beverly Martin sparred with the attorney for Golden Rule meanwhile about its determination that Jones had a pre-existing condition.

“Every woman over 40 is supposed to have a mammogram,” Martin said. “Is that supposed to be a diagnosis? The defendant argues that it was pre-existing if the doctor says, ‘Let’s get this checked out.’”

Golden Rule is represented on appeal by Cavender Kimble with the firm Balch & Bingham in Birmingham, Alabama.

“There may be ambiguity in the facts but it’s not ambiguous in the contract,” Kimble said.

“What would the lay person say?” the attorney pushed back later. “If they got a recommendation for further diagnosis, that’s pre-existing.”

Jones is pushing for a reversal after a federal judge dismissed her suit.

Her attorney Jordan said the lower court applied the wrong standard.

“If there’s an ambiguity, you have to read it in favor of the insured,” said Jordan, with the firm Shamp Jordan Woodword in Atlanta.

“That’s not what happened here,” Jordan added.

Jordan emphasized in an email after the hearing they are fighting for what’s fair.

“Awareness of the condition or the potential of the condition has been required in every case construing these types of exclusion,” Jordan said. “To do away with this basic requirement would effectively allow insurance companies to take any trivial symptom or inconclusive finding in an insured's medical history that is not inconsistent with the final diagnosis and use it as a way to exclude coverage.”

Declining to celebrate the hearing just yet, Jordan noted that she “learned long ago not to gauge the success of an appeal, or lack thereof, on oral argument.”

“However, we were pleased that the panel was engaged and the judges understood the issues,” Jordan added.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit