TANZER v. HEALTH INSURANCE PLAN OF GREATER NEW YORK (1997)

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

 Plaintiff brought this action on behalf of herself and others similarly situated to recover insurance reimbursement for the cost of surgery-related anesthesiologist's services.   Defendant insurer contends that such costs cannot be recovered because the parties' insurance contract, which covers the cost of certain medical and surgical care, contains a specific exclusion for “anesthesia.”   We agree with plaintiff, however, that this exclusion does not unambiguously apply to the medical services associated with the administration of anesthetic agents and could just as readily be construed to exclude only the cost of those agents themselves.

While, as defendant contends, several dictionaries define the term “anesthesia” broadly to mean the entire process of becoming anesthetized, the term has also often been used to refer only to the substance that is administered by an anesthesiologist (see, e.g., Stanski v. Ezersky, 228 A.D.2d 311, 312, 644 N.Y.S.2d 220;  Houck v. Sparks, 81 F.3d 168 (9th Cir.1996);  Alston v. Howard, 925 F.Supp. 1034, 1038 (S.D.N.Y.1996);   Gess v. United States, 952 F.Supp. 1529 (M.D.Ala.1996);  Norris v. Detrick, 918 F.Supp. 977, 980, n. 5 (N.D.W.Va.1996);  Rathgeber v. Kiowa Dist. Hosp., 131 F.R.D. 195, 196 (D.Kan.1990);  Boswell v. Burroughs Wellcome Co., 1997 WL 198746 [Tex.Ct.App. 1997];  Hughes v. Bailey, 691 So.2d 359, 360 [La.Ct.App. 1997];  Becker v. Halliday, 218 Mich.App. 576, 577, 554 N.W.2d 67, 68;  Morgan v. McPhail, 449 Pa.Super. 71, 672 A.2d 1359;  Roberts v. Cox, 669 So.2d 633, 640 [La.Ct.App. 1996];  K Mart Corp. v. Beall, 620 N.E.2d 700, 703 [Ind.Ct.App. 1993];  White v. Katz, 261 N.J.Super. 672, 674-675, 619 A.2d 683, 684;  Public Health Law § 3380;  11 NYCRR 52.6;  Ark Code Ann § 5-60-116[b][2];  Conn Gen Stat Ann § 21a-280;  Mich Comp Laws Anno § 752.272;  NH Rev Stat Ann § 644:5-a).

 Moreover, none of the other provisions in the parties' insurance contract serves to clarify the ambiguity inherent in the use of the term “anesthesia.”   Defendant relies on the separate policy exclusion for “inpatient drugs or supplies,” arguing that that exclusion would render the “anesthesia” exclusion redundant if the latter were interpreted narrowly to encompass only the substances used to anesthetize surgical patients.   However, the provision appears to exclude only the cost of those “inpatient drugs or supplies” that are “normally included in a hospital's” charges.^*  Thus, although there may be some overlap, plaintiff's proposed interpretation of the “anesthesia” exclusion would not render it redundant in cases like plaintiff's involving drugs and supplies provided by an independent anesthesiologist.   Further, to the extent that the “inpatient drugs or supplies” exclusion is construed to encompass all inpatient drugs and supplies, it would also render redundant the policy's separate exclusion for the costs associated with blood and blood plasma.   Hence, defendant's effort to rule out plaintiff's profered interpretation by reference to other policy provisions is unpersuasive.

Finally, a reading of the remainder of defendant's policy reveals a number of specifically worded exclusions for the cost of such enumerated professional services as podiatry, chiropractic and cosmetic surgery.   The absence of any similarly worded exclusion for anesthesiologists' services could reasonably be understood as meaning that such fees are, in fact, reimbursable.

In short, it cannot be said that defendant satisfied its burden of demonstrating that the proposed exclusion for anesthesiologists'services is “stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” (Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 652, 593 N.Y.S.2d 966, 609 N.E.2d 506;  see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272).  Accordingly, defendant has not established its entitlement to an order dismissing the complaint.

Order reversed, etc.

FOOTNOTES

FOOTNOTE.   The provision in question states:  “This Contract does not provide benefits for hospital services, such as room and board, nursing services, inpatient drugs or supplies, services by hospital employees or other services or supplies which are normally included in a hospital's charges ” (emphasis supplied).

MEMORANDUM.

KAYE, C.J., and TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY, JJ., concur.