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January 27, 1995


Appeal from Limestone Circuit Court. (CV-92-164). Henry Blizzard, Trial Judge.

Released for Publication April 25, 1995.

Kennedy, Almon, Houston, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Kennedy


The plaintiff Evelyn Roberts appeals from a judgment based on a directed verdict in favor of the defendant, Blue Cross and Blue Shield of Alabama ("Blue Cross"), on Roberts's claim alleging fraudulent suppression. Roberts argues that she presented substantial evidence creating a genuine issue of material fact on that claim; she argues, therefore, that the trial court erred in directing a verdict for Blue Cross.

In January 1991, Roberts had medical coverage under a policy with Blue Cross and under a policy with John Deere Insurance Company. *fn1 On January 16, 1991, Roberts's physician, Dr. Lionel Naylor, examined Roberts and recommended in-patient surgery for an abdominal hernia. On two previous occasions, Dr. Naylor had performed in-patient surgeries on Roberts unrelated to the hernia. Under the circumstances of Roberts's proposed surgery and as a condition of Blue Cross's payment of benefits, Roberts's contract of insurance with Blue Cross required "pre-admission certification," i.e., the payment of benefits was conditioned on Blue Cross's pre-admission approval of the proposed surgery. Jewell Joiner, Dr. Naylor's office manager, testified that after Dr. Naylor had examined Roberts on January 16 Joiner contacted Blue Cross by telephone about pre-admission certification for Roberts's proposed surgery. Joiner testified that she spoke with someone named "Donna" at Blue Cross, who indicated that the Blue Cross computer was down, but who stated: "If it's an individual contract, go ahead and admit her." R. T. 200. Joiner testified that she knew that with the Blue Cross computer down, a Blue Cross representative could not actually know whether a policy was in force. R. T. 194. Also, it is undisputed that with the computer down Blue Cross could not issue Roberts a pre-admission certification number, a number that the parties suggest indicates completion of a pre-admission certification.

According to Joiner, "Donna" promised that Blue Cross would call back about the matter of a pre-admission certification number for Roberts. R. T. 186. Although Joiner noted on Roberts's records that pre-admission certification had been made, she stated that she "flagged" Roberts's file because the matter needed to be followed up on. R. T. 212. She testified that flagging the file "meant that somebody was going to call back [about pre-admission certification] or something needed to be done on it." Id. Ultimately, no one at Blue Cross contacted Dr. Naylor's office and Dr. Naylor's office did not follow up on the certification before

Roberts was admitted into a hospital on January 22, 1991. Roberts never obtained pre-admission certification.

Roberts testified that, before her admission, she knew that she needed pre-admission certification, R. T. 174, but she stated that she "didn't give it a thought." R. T. 173. She agreed that she "didn't rely on anybody at [Blue Cross] to get precertification [sic]" for her, id., and testified that Joiner "had always done it." R. T. 165. Roberts stated, also, that after her examination on January 16 she informed Joiner that she would need pre-admission certification for the proposed hernia surgery, and that Joiner had responded by saying that she had "already taken care of it." Id.

Roberts testified also, that she "believed" that Joiner had contacted Blue Cross. Id.

As to the previous surgeries, Roberts had received pre-admission notification of Blue Cross's decision on pre-admission certification. Roberts testified that she received no pre-admission notification from Blue Cross as to the proposed hernia surgery in issue, but that she made no efforts to contact Blue Cross. R. T. 171, 173-74.

Based on the lack of pre-admission certification, Blue Cross denied Roberts's claim for benefits associated with her surgery. Roberts and her husband, Raymond Roberts, sued Blue Cross on theories of negligence and/or wantonness, breach of contract, fraudulent misrepresentation, fraudulent suppression, and bad faith refusal to pay. Before trial, Raymond Roberts dismissed his claims and Evelyn Roberts voluntarily dismissed her claim alleging negligence and/or wantonness and her claim alleging bad faith refusal to pay. Accordingly, the case proceeded to trial with Evelyn Roberts as the lone plaintiff and on claims alleging breach of contract, fraudulent misrepresentation, and fraudulent suppression.

At the close of Roberts's case, the trial court, on Blue Cross's motion, entered a directed verdict for Blue Cross on Roberts's fraudulent suppression claim. On Roberts's two remaining claims, alleging breach of contract and fraudulent misrepresentation, the jury returned a verdict in favor of Blue Cross. The trial court entered a judgment for Blue Cross, based on the directed verdict on the one claim and the jury's verdict on the other two. Evelyn Roberts appeals from that portion of the judgment based on the directed verdict in favor of Blue Cross on the fraudulent suppression claim.

Alabama Code 1975, ยง 12-21-12 provides: "Substantial evidence shall be required to submit an issue of fact to the trier of the facts. Proof by substantial evidence shall be required for purposes of testing the sufficiency of the evidence to support an issue of fact in rulings by the court [on] ...

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