
USCA1 Opinion

	




          February 6, 1995  United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________          No. 94-1613                            GOLDEN RULE INSURANCE COMPANY,                                Plaintiff, Appellant,                                          v.                                  CATHERINE ATALLAH,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this Court  issued on January  23, 1995,  is          amended as follows:               On cover sheet, Curtis  Dickinson's name should read "Curtis          J. Dickinson" and on the last line of  page 5 of the opinion "Dr.          Preston" should read "Dr. Croswell".                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1613                            GOLDEN RULE INSURANCE COMPANY,                                Plaintiff, Appellant,                                          v.                                  CATHERINE ATALLAH,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Curtis J. Dickinson with  whom Dickinson &  Associates, Wendell G.            ___________________            _______________________  __________        Large, Elizabeth G. Stouder, and Richardson & Troubh were on brief for        _____  ____________________      ___________________        appellant.            Mark G. Furey with whom Thompson,  McNaboe, Ashley & Bull  were on            _____________           _________________________________        brief for appellee.                                 ____________________                                   January 23, 1995                                 ____________________                      STAHL, Circuit Judge.   Plaintiff-appellant  Golden                      STAHL, Circuit Judge.                             _____________            Rule  Insurance   Company   ("Golden  Rule"),   an   Illinois            corporation, appeals a  judgment awarding  defendant-appellee            Catherine   Atallah   ("Atallah")  $263,698.68   for  medical            expenses  pursuant to  an insurance  contract  ("the Policy")            between  the parties.   Golden  Rule contends  that Atallah's            illness,  a meningioma, or tumor  of the brain  lining, was a            preexisting condition excluded from coverage under the Policy            and therefore the district court erred in not granting Golden            Rule judgment as a matter of law.  We agree  that Golden Rule            was entitled to  judgment as a matter of law,  and now vacate            and remand so that judgment may be entered accordingly.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      By  late  1991, those  who  knew  Catherine Atallah            realized  that something was amiss  with her.  Divorced about            eight  years previously,  Atallah,  then 49,  of  Waterville,            Maine,  had become  increasingly reclusive over  the previous            several years,  and she  was becoming increasingly  unable or            unwilling  to perform  the ordinary  tasks of  everyday life.            She  failed  to pay  bills,  and  her utility  and  telephone            services  were  cut off  more than  once.   She  fell several            months  behind in  mortgage  payments on  her  home, and  she            allowed  her driver's license to lapse.  When the doorbell or            telephone rang,  she  often  would refuse  to  answer.    She                                         -2-                                          2            bathed, changed clothes and combed her hair infrequently, and            she left soiled pots and  pans in her kitchen for weeks  at a            time.                      A family friend  persuaded Atallah to  seek medical            attention in June  1991, but a routine  examination turned up            no obvious clues to her condition.  She also visited a social            worker twice that summer, and explained that she was doing so            to learn "why I  am the way I am."  She failed to show up for            a  scheduled third  visit  and  did  not  arrange  a  further            appointment.                      In   November   1991,   Atallah's   condition   had            deteriorated to the point that her oldest son, Peter Atallah,            obtained  from  her  a power-of-attorney  permitting  him  to            oversee her affairs.   One of the first things  Peter Atallah            did was attempt to purchase medical insurance for his mother,            who was then  uninsured.   This effort failed  because of  an            apparent  mix-up over the method  of payment.   In June 1992,            Peter Atallah  arranged for Dr. David  Preston, an internist,            to  visit his  mother at home.   In  a lengthy  letter to Dr.            Preston,  Peter Atallah  related  his  mother's personal  and            medical history,  including a previous thyroid  condition and            hysterectomy about eight years earlier.  He told Dr.  Preston            that he and his brothers                      want our mother back.   We believe she is                      suffering  from  chronic depression,  but                      that   there   are  chemical   imbalances                      (thyroid, estrogen) that are making a bad                                         -3-                                          3                      situation much worse.  We cannot rule out                      the need  for mental therapy, but we have                      not  been able  to  get a  handle on  the                      whole problem.                      Dr. Preston visited Atallah in her home on June 24,            1992.    The  ensuing  physical exam  yielded  no  remarkable            findings other than that  she had lost fifteen  pounds during            the previous six  months and had suffered a  gradual decrease            in vision over  the previous  few years.   Dr. Preston  noted            that Atallah's thyroid condition  should be rechecked and the            cause of  her weight loss determined.   He also noted that he            believed she was "a danger to herself though in a sort of low            grade  fashion,"   and  that   he  discussed  with   her  the            advisability  of seeking inpatient  psychiatric treatment "as            she  has   really  failed  to  connect"  with  anyone  as  an            outpatient.   In  deposition  testimony read  into the  trial            record,  Dr.  Preston  stated  that  Atallah  did  not  think            inpatient treatment was necessary but  that she agreed to see            a psychiatrist  on an outpatient basis, and  that he "thought            that that  would be  a  good start."    Dr. Preston  did  not            specifically  recommend that  Atallah  receive an  EEG or  CT            scan.  He  recalled, however, that  Atallah was reluctant  to            undergo   expensive  tests  or   hospitalization  because  of            concerns  about  her  lack of  insurance  coverage.    At Dr.            Preston's direction, Atallah went  to the hospital later that            day for blood tests  and a chest x-ray.  These tests revealed            no findings significant to her condition.                                         -4-                                          4                      Dr.  Preston  then referred  Atallah to  Dr. Robert            Croswell,  a psychiatrist.  Dr. Croswell saw Atallah first on            July 2  and again on July  9.  He prescribed  for Atallah the            drug Zoloft,  an anti-depressant.    At the  July 9  session,            according to Dr. Croswell's videotaped  deposition testimony,            he recommended  that Atallah  submit to  inpatient evaluation            because he was  concerned that he was not  getting a full and            accurate  view of the extent of her condition and he "thought            that a good way to clarify the issue would be to get her into            the hospital so we could do a more thorough evaluation  . . .            ."    While obtaining  brain wave  test  results was  not the            primary  reason Dr.  Croswell suggested  inpatient treatment,            such treatment would have  included these tests, Dr. Croswell            testified, and  would probably have  led to the  discovery of            the tumor.   Dr. Croswell  also testified  at his  deposition            that  Atallah did not want  to submit to inpatient evaluation            because of insurance concerns.  Later in  that deposition, he            stated  that  Atallah's   refusal  to  submit   to  inpatient            treatment and her concerns  about insurance coverage were not            necessarily causally linked, and that "it certainly was never            clear  that the  reason  she refused  was  purely because  of                                                       ______            insurance  coverage."    (emphasis  added)    Dr.  Croswell's            handwritten notes  from the  July 9  session do  not indicate            that he  actually discussed inpatient  treatment with Atallah            on  that day, or that  she expressed concerns about insurance                                         -5-                                          5            coverage.    The  notes   do,  however,  contain  a  notation            indicating  that   at  the   very  least  Dr.   Croswell  was            considering  the  suitability  of three  different  inpatient            treatment facilities for Atallah.                      Atallah  did not  keep  her  appointment  with  Dr.            Croswell for July 23, but  he did see her on July  27 and 28.            On  July  28, Dr.  Croswell  entered into  a  "contract" with            Atallah.  The contract called for Atallah  to continue taking            Zoloft and visiting Dr. Croswell at his office each week.  If            this  treatment  produced no  improvement  in  three to  four            weeks,  the Zoloft  dosage would  be doubled.   If  there was            still no  improvement in two months,  Dr. Croswell testified,            he  told Atallah he would be unwilling to continue seeing her            on  an outpatient basis and  would insist that  she submit to            inpatient evaluation.1   However,  Atallah failed to  show up            for any further visits with Dr. Croswell.                      In a letter to Maine's Department of Human Services            Disability  Determination   Services  dated  August   4,  Dr.                                            ____________________            1.  In his consultation notes  prepared on September 30, 1992            --  after Atallah had finally been admitted to a hospital for            a  fainting spell but before her tumor had been discovered --            Dr. Croswell wrote:                      I  think  we  are  seeing gradual  evolution  of  a                      thought disorder here.   Certainly medical  work up                      (sic)  is necessary  including electroencephalogram                      and  CT brain  scan to  rule out  organic etiology.                      Such a work up has been  recommended to the patient                      a couple  of months  ago but she  refused inpatient                      evaluation   and  had  some   real  concerns  about                      insurance coverage.                                         -6-                                          6            Croswell wrote that Atallah "shows evidence of severe poverty            of  content of  thinking  with grossly  impaired judgment  at            times regarding  her own needs."   He  wrote that it  was his            "impression"   that  Atallah   suffered  from   a  "gradually            increasing  disability"   with   the  diagnosis   of   "major            depression, severe  and persistent," and  "passive aggressive            personality disorder."  Dr.  Croswell had "[n]o diagnosis" of            any physical condition.                      Meanwhile, after learning that his mother was still            uninsured,  Peter  Atallah   applied  for   Medicare/Medicaid            coverage on  her  behalf.    Expecting  a  delay  before  the            application  was approved,  he purchased  a  short-term, non-            renewable   medical  insurance   policy  from   Golden  Rule,            effective  August 9,  1992.   The Policy  contained a  clause            stating  that Golden  Rule  would not  pay for  medical bills            attributable  to preexisting conditions.   The Policy defined            "preexisting condition" as:                      an illness2 or injury:                      (1)  for which the covered person  received medical                           advice  or  treatment  within  the  60  months                                            ____________________            2.  The Policy defines "illness" as                      a  sickness  or disease  .  .  . .    All                      illnesses that exist at the same time and                      _________                      which  are  due to  the  same or  related                      causes  are  deemed  to be  one  illness.                                                       _______                      Further, if an illness  is due to  causes                                     _______                      which are the same as, or related to, the                      causes  of a  prior illness,  the illness                                          _______       _______                      will  be  deemed  a  continuation  of the                      prior illness and not a separate illness.                            _______                    _______                                         -7-                                          7                           immediately preceding the Effective Date . . .                           ; or                      (2)  which, in the opinion of a qualified doctor,                           (a)  probably  began  prior  to the  Effective                                Date . . .; and                           (b)  manifested symptoms which would  cause an                                ordinarily   prudent   person   to   seek                                diagnosis  or  treatment  within  the  60                                months    immediately    preceding    the                                Effective Date . . . .                      On  September  29,  1992,  while  talking  on   the            telephone with  her son  Peter, Atallah suffered  a "syncopal            episode," or  fainting spell.    She was  taken to  Mid-Maine            Medical  Center in  Portland, where  a CT  scan and  EEG were            performed.   To the surprise of  her treating physicians, the            tests revealed a grapefruit-sized tumor growing on the lining            surrounding Atallah's brain --  in medical terms, a bifrontal            olfactory groove  meningioma.3  Atallah  underwent surgery on            October 8, 1992, and  doctors were able to remove  about half            of the tumor.  The medical bills for Atallah's hospital stay,            surgery  and  eight  months of  recuperative  care  following            surgery totalled $263,698.68.                      When Atallah  submitted a claim to  Golden Rule for            payment,  the company  refused  to pay,  citing the  Policy's            preexisting condition  clause.  In  denying coverage,  Golden                                            ____________________            3.  Dr. Eric  Omsberg, who  diagnosed the meningioma  from CT            scan  and EEG  test results,  wrote in his  consultation note            that Atallah had  not previously had a  "workup regarding the            possibility  of  a  central lesion,  but  there  has been  no            specific  indication  to  do  such  since  her  exam  remains            nonfocal  except   for   mental  status,   higher   cognitive            functionings, and calculations."                                          -8-                                          8            Rule  relied on  both  definitions contained  in the  Policy,            explaining that Atallah had received treatment and advice for            her illness  in the five years  prior to August 9,  1992, and            that it had obtained the opinion of a qualified doctor to the            effect that  her illness had manifested  symptoms which would            cause  an  ordinarily prudent  person  to  seek diagnosis  or            treatment within the five years prior to August 9, 1992.                      Golden  Rule  instituted  a   declaratory  judgment            action  in the district  court in May 1993.   Atallah filed a            counterclaim  for breach  of  contract.   During the  two-day            trial,  Golden Rule's  expert witnesses, Drs. Norman Oestrike            and John Boothby testified  that Atallah's symptoms were such            that  she should have received a CT  scan and EEG to test for            the  possibility  of  an  organic cause  of  her  depression.            Atallah  offered  the testimony  of  Dr.  Richard Toran,  who            testified that in his opinion there was no need to order a CT            scan  for Atallah before  August 9 because  her symptoms were            all explicable by her  personal history.  All of  the doctors            who  treated  Atallah either  before  or  after the  ultimate            diagnosis agreed that her severe depression and reclusiveness            were  caused by the tumor and that the tumor had been growing            for many years.                      After  all the evidence  had been submitted, Golden            Rule  moved  for  judgment as  a  matter  of  law, which  the            district  court denied.  The  jury returned a special verdict                                         -9-                                          9            for Atallah, concluding that her tumor  was not a preexisting            condition  under  the Policy.    The  district court  entered            judgment  for  Atallah  in  the full  amount  claimed.    The            district court  then denied Golden Rule's  renewed motion for            judgment as a matter of  law and motion for a new  trial, and            Golden Rule now appeals.4                                         II.                                         II.                                         ___                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      Our  review of a denial of a motion for judgment as            a matter of law  is plenary.  Acevedo-Diaz v.  Aponte, 1 F.3d                                          ____________     ______            62, 66 (1st Cir. 1993).   As did the district court,  we view            the evidence in the light most favorable to the nonmovant and            decide whether  any reasonable  jury could have  returned the            verdict it  did.  See Sanchez v. Puerto Rico Oil Co., 37 F.3d                              ___ _______    ___________________            712,  716 (1st  Cir. 1994).   Thus,  we reverse  the district            court's denial of the motion only if the facts and inferences            "point so strongly and overwhelmingly in favor of the movant"            that  a reasonable  jury  could not  have  reached a  verdict            against that party.  Aponte, 1 F.3d at 66 (internal quotation                                 ______                                            ____________________            4.  In addition  to appealing the district  court's denial of            its motions for  judgment as a  matter of law  and for a  new            trial,  Golden  Rule also  appeals  several  of the  district            court's evidentiary rulings made  before and during trial and            its  denial  of proffered  jury  instructions.   Because  our            decision  on Golden Rule's motion for judgment as a matter of            law  is   dispositive,  we   do  not  discuss   the  disputed            evidentiary rulings.   We do, however,  obliquely discuss the            matter  of instructional error in the  course of passing upon            Golden Rule's  entitlement to  judgment as a  matter of  law.            See infra Part III(B).            ___ _____                                         -10-                                          10            omitted).  In performing this analysis, "`we may not consider            the credibility of witnesses, resolve conflicts in testimony,            or evaluate the weight  of the evidence.'"  Sanchez,  37 F.3d                                                        _______            at  716 (quoting Wagenmann v.  Adams, 829 F.2d  196, 200 (1st                             _________     _____            Cir. 1987)).                                         III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________                      We must decide whether a reasonable jury could have            concluded from  all the evidence that Atallah was entitled to            recover under  the Policy despite  its preexisting  condition            exclusion.  The  jury concluded that Atallah was  entitled to            insurance  benefits because  her illness5  did not  fit under            either   of  the   Policy's   definitions   of   "preexisting            condition."                      Our  assessment of  the jury  verdict's rationality            hinges on  the meaning of the  Policy's preexisting condition            clause.    Under  Maine's   general  law  of  contracts,  the            interpretation of a contract is a question for the factfinder                                            ____________________            5.  Golden  Rule  contends that  the  Policy's  definition of            "illness" sweeps together Atallah's  depression and tumor  as            one  illness.    Atallah  argues  that  the  definition  only            addresses situations  in which  the insured actually  has two                                                        ________  ___            causally-related  illnesses --  i.e.,  an insured  with AIDS-            related pneumonia  who later develops AIDS-related  cancer --            and not  situations such as her own, in which the only "true"            illness was her tumor.  Because both parties agree that under            either  interpretation  Atallah's  "illness"  would  at least            comprise her tumor, and because resolution of this particular            issue  is unnecessary  to  our decision,  we treat  Atallah's            "illness"  as meaning her tumor only.  We offer no opinion on            the proper interpretation of the "illness" definition.                                         -11-                                          11            only  if  the court  first  determines that  the  contract is            ambiguous, a question of law.  Willis Realty Assoc. v. Cimino                                           ____________________    ______            Constr.  Co.,  623  A.2d  1287, 1288  (Me.  1993).    Because            ____________            exclusions from  coverage  in  insurance  contracts  are  not            favored  and   must  be  stated  clearly  and  unambiguously,            ambiguities in  such contracts  must be resolved  against the            insurer.  Baybutt Constr. Corp. v. Commercial Union Ins. Co.,                      _____________________    _________________________            455 A.2d 914, 921  (Me. 1983), overruled on other  grounds by                                           _________ __ _____  _______ __            Peerless  Ins. Co. v. Brennon,  564 A.2d 383  (Me. 1989); see            __________________    _______                             ___            also Maine Bonding & Cas. Co. v. Philbrick, 538 A.2d 276, 277            ____ ________________________    _________            (Me.  1988); Allstate Ins. Co.  v. Elwell, 513  A.2d 269, 271                         _________________     ______            (Me.  1986).  However, this latter rule of construction "is a            rule  of last resort which must not be permitted to frustrate            the  intention  the  parties  have  expressed,  if  that  can            otherwise be ascertained,"  Tinker v.  Continental Ins.  Co.,                                        ______     _____________________            410 A.2d 550,  554 (Me. 1980), and  "a court may  not rewrite            the  contract when the  language employed is  free of doubt."            Palmer v. Mutual Life Ins. Co., 324 F. Supp. 254, 257 (D. Me.            ______    ____________________            1971).  Finally, we note that we must determine the intention            of  the parties by  examining "the whole  instrument," and we            must do so "with an eye to the subject-matter, the motive and            purpose  of  making  the  agreement,  and  the  object  to be            accomplished."   General Elec. Capital v.  Ford Motor Credit,                             _____________________     _________________            149 B.R. 229, 233 (D. Me 1992).            A.  Interpretation of the Preexisting Condition Clause            ______________________________________________________                                         -12-                                          12                      The  Policy's  language  defines  an illness  as  a            preexisting  condition   if  it   fits  either  of   the  two            definitions contained  in the Policy's  preexisting condition            clause.  Under the first definition (the "Treatment Clause"),            a preexisting condition  is an illness or  injury "for which"                                                               ___ _____            the  insured actually  received medical  advice or  treatment            before the  Policy's effective  date.  The  second definition            (the "Symptoms  Clause") focuses  not on advice  or treatment            actually received, but rather  on whether a reasonable person            would have  sought diagnosis  or treatment if  afflicted with            _____ ____            the  insured's symptoms  before the Policy's  effective date.            Because we hold that a rational jury could not have concluded            that Atallah's  tumor was  not a preexisting  condition under            the Policy's  Symptoms Clause, we  do not address  the proper            interpretation or application of the Treatment Clause.6                      The Symptoms Clause presents us with  language that            neither  we  nor  Maine  courts,  as  reflected  in  reported                                            ____________________            6.  We considered a clause similar to the Treatment Clause in            Hughes  v. Boston Mut. Life  Ins. Co., 26  F.3d 264 (1st Cir.            ______     __________________________            1994).   In  that  case, we  held  that a  disability  policy            defining "preexisting condition" as a "sickness or injury for                                                                      ___            which   the  insured   received  treatment"   was  reasonably            _____            susceptible  of  two  interpretations.     Id.  at  266,  269                                                       ___            (emphasis added).  We stated that the phrase could reasonably            "require[] some awareness on the part of the physician or the            insured  that  the insured  is  receiving  treatment for  the            condition itself,"  id. at 269,  and we construed  it against                                ___            the insurer for  purposes of  summary judgment,  id. at  270.                                                             ___            Hughes  is distinguishable  because  the policy  at issue  in            ______            Hughes contained  nothing similar  to the Symptoms  Clause at            ______            issue here.                                         -13-                                          13            decisions, have previously confronted.7   Atallah argues that            the  clause must mean that the symptoms would cause a prudent            person to seek  diagnosis or treatment of a brain  tumor or a                                                   __ _ _____  _____            similarly organic  brain disease.  On its  face, however, the            clause does  not require  either a  correct diagnosis  of the            underlying illness  or  any  awareness  on the  part  of  the            insured  or her  physician of  the nature  of  the underlying            illness.  The words  "for which" -- present in  the Treatment            Clause and on  which our  decision in Hughes8  turned --  are                                                  ______            noticeably  absent from  the Symptoms  Clause.   The Symptoms            Clause  presents  a linguistically  uncomplicated  test.   It            simply asks:  In the opinion of a qualified  doctor,9 did the                                            ____________________            7.  Maine recently adopted  a statutory provision  containing            language quite  similar to the  Symptoms Clause.   Under this            provision, a preexisting condition clause "may only relate to            conditions  manifesting  in  symptoms  that  would  cause  an            ordinarily  prudent person to seek medical advice, diagnosis,            care  or treatment  or for  which medical  advice, diagnosis,            care  or treatment was recommended  or received during the 12            months immediately preceding the effective date of coverage."            Me.  Rev. Stat.  Ann. tit.  24-A,    2850 (West  Supp. 1994).            Maine  courts have yet to  interpret this provision.   In any            case, this provision was not in effect when Atallah purchased            her Policy, and the parties have not argued its relevance.            8.  See supra note 6.                ___ _____            9.  We do not  take this phrase to  mean that if Golden  Rule            obtains  the opinion  of  a single  qualified  doctor in  its            favor,  the case is  over.  Rather,  we take it  to mean that            Golden  Rule must obtain the opinion of a qualified doctor in            order to deny coverage  under the Symptoms Clause, but  that,            if the facts permit  a qualified physician, properly applying            the policy definitions, to reach a  contrary opinion -- which            is not the case here --  then the factfinder would be free to            decide what an ordinarily prudent person would do.  Cf. Clark                                                                ___ _____            v. Golden Rule Ins. Co., 887 F.2d 1276, 1279 (5th Cir. 1989).               ____________________                                         -14-                                          14            illness "manifest symptoms"  which would cause an  ordinarily            prudent person to seek diagnosis or treatment within the five            years prior to the Policy's effective date?                      We  are unable  to  ascribe any  ambiguity to  this            test.  We think the only  plausible meaning of the phrase  is            just what it  says.   The clause  does not  require that  the            insured seek a particular kind of diagnosis -- indeed, common            sense tells us that one  seeks a diagnosis precisely  because            one is uncertain  of the  cause of particular  symptoms.   It            merely requires that the symptoms be  such that an ordinarily            prudent  person would  seek diagnosis  or  treatment.   If an            insured  experiences such  symptoms within  the  sixty months            prior to  the Policy's effective date,  then whatever illness            is ultimately  determined to have caused  those symptoms will            be  deemed a preexisting condition and  will be excluded from            coverage.                                            ____________________            In Clark,  the only other circuit  court opinion interpreting               _____            language  virtually  identical to  the  Symptoms Clause,  the            court  affirmed the  denial of  coverage for  coronary bypass            surgery for a patient  with high cholesterol and triglyceride            levels  and who had  experienced chest pains  or tightness in            the chest a few months before buying insurance.  In doing so,            the  court  rejected  the  insured's  argument  that  he  had            received a  "clean  of bill  of health"  following a  cardiac            stress test before purchasing  insurance and therefore he had            no reason to seek  diagnosis or treatment for his  subsequent            chest  pains.    The court  ruled  that  "`the  opinion of  a            qualified physician' is the test under  the policy, and [four            doctors] all testified that an ordinarily prudent person with            [the insured's symptoms] would seek diagnosis or  treatment."            Id.             ___                                         -15-                                          15                      Atallah  argues  that  interpreting   the  Symptoms            Clause in this  way runs counter to the  traditional function            of preexisting  condition clauses, which is  to prevent fraud            by protecting the  insurer from people  who are already  sick            but  who  intentionally  delay diagnosis  or  treatment until            after they purchase insurance.10  We do not agree.                                            ____________________            10.  To achieve the  fraud-prevention function  while at  the            same  time  protecting the  insured  from  being deprived  of            benefits  for preexisting  conditions of  which they  have no            knowledge, many courts  have construed preexisting  condition            clauses  as  applying only  when  an  insured experiences  "a            distinct  symptom  or condition  from  which  one learned  in            medicine  can with reasonable accuracy diagnose the illness."            Mogil v. California Physicians Corp., 267 Cal. Rptr. 487, 491            _____    ___________________________            (Cal.  Ct.  App.  1990)   (internal  quotation  omitted   and            collecting numerous  cases).  In such  cases, however, courts            generally  were   confronted  with  policies   containing  no            specific  definition  of  preexisting  condition,  see, e.g.,                                                               ___  ____            Hannum  v. General Life &  Accident Ins. Co.,  745 S.W.2d 500            ______     _________________________________            (Tex.  Ct. App.  1988),  or with  clauses  that defined  such            conditions  as  illnesses  --  not  symptoms  --  that  first            "exist,"  "begin,"  "commence,"  "manifest,"  or  enter  some            similarly  imprecise   stage,  before  the   policies  became            effective.   See, e.g.,  Mutual Hosp. Ins.,  Inc. v. Klapper,                         ___  ____   ________________________    _______            288 N.E.2d 279, 282  (Ind. Ct. App. 1972) ("exist");  Kirk v.                                                                  ____            Provident  Life & Accident Ins.  Co., 942 F.2d  504, 505 (8th            ____________________________________            Cir. 1991) ("begin"); Lincoln Income Life Ins. Co. v. Milton,                                  ____________________________    ______            412 S.W.2d 291 (Ark. 1967) ("first commences or first becomes            evident"); Mayer v. Credit Life Ins. Co., 202 N.W.2d 521, 523                       _____    ____________________            (Mich.  Ct. App.  1972) ("first  manifested").   Our research            uncovered no reported  decision in which  a court faced  with            language  similar  to  the  Symptoms  Clause  at  issue  here            nevertheless  adopted  the  foregoing common-law  definition.            But cf. Pfeffer v.  Reserve Life Ins. Co., No.  89-4698, 1990            ___ ___ _______     _____________________            WL  142056,  at  *3 (E.D.  La.  Sept.  20,  1990) (construing            preexisting  condition clause  excluding coverage  if insured            experienced "symptoms which would cause an ordinarily prudent            person  to  seek medical  diagnosis,  care  or treatment"  as            meaning "diagnosis,  care or treatment  for cancer" (emphasis                                                    ___ ______            added)).                                         -16-                                          16                      It   is   true  that   denying  coverage   under  a            preexisting condition clause to  a person who at the  time of            purchase  has  no  idea that  she  is  ill  serves no  fraud-                           __  ____            prevention function.11   The  Policy's  Symptoms Clause  does            not go so far; it would not exclude coverage, for example, of            Atallah's tumor if she had experienced no symptoms before the                                                   __            Policy's  effective date.   The  Symptoms Clause  only denies            coverage  for  undiagnosed illnesses  if  the  insured is  on            notice that something  is not  right with her;  to allow  the                        _________            insurer  to  contractually  deny  coverage  for  whatever may            ultimately prove to  be the cause of the malady  in fact does                                                                     ____            serve  the policy  of protecting  the insurer  from deceitful            purchasers.   It is  not  difficult to  imagine an  uninsured            person experiencing  symptoms of  unknown origin  putting off            medical  diagnosis  or   treatment  until  he  can   purchase            insurance.                      Atallah,  of  course,  actually  did  seek  medical            diagnosis and treatment before purchasing insurance.  But the            plain language of  the Symptoms  Clause affords  no basis  on                                            ____________________            11.  Nonetheless, courts have  enforced contracts  containing            clauses that are  clearly drafted to  achieve such a  result.            See Medical Serv.  of D.C.  v. Llewellyn, 208  A.2d 734,  736            ___ ______________________     _________            (D.C.  1965) (denying  coverage  for  gallstone removal  when            policy  excluded benefits for preexisting conditions "whether            known  or not  known"  by the  insured);  see also  Knepp  v.                                                      ___ ____  _____            Nationwide  Ins. Co.,  471 A.2d  1257, 1259  (Pa. Super.  Ct.            ____________________            1984) (stating that "[w]here .  . . a policy of insurance  is            drawn  to  cover  only prospective  illnesses  the  insured's            knowledge or lack of knowledge of the pre-existing illness is            immaterial").                                         -17-                                          17            which  to make an exception for  an insured who in good faith            obtains an  incomplete  diagnosis and  consequently fails  to            discover  the full  extent of  her illness  before purchasing            insurance.    The clause  is  an  objective manifestation  of            mutual intent to insure against the risk of future illness or            injury, not against the risk that an earlier  diagnosis turns            out to be wrong.                      Furthermore, while interpreting the  clause exactly            as written  in cases of incorrect diagnosis may not obviously            serve  a fraud-prevention  function,  neither does  it impair            that  function.   Medical  diagnosis is  an  inexact art.   A            doctor's ability to diagnose  an illness correctly may depend            on what symptoms  a patient is  experiencing at a  particular            time; how clearly  the patient expresses her  symptoms to her            doctor;  the  doctor's  own  experience  and  inclination  to            administer  tests; and the  patient's willingness  to undergo            tests sooner rather than  later.  An insurer may  well prefer            to avoid these vagaries  entirely and simply fix the  time at            which it will assume  risk at a point before  any significant            symptoms  occur.    Indeed,  Atallah's  "contract"  with  Dr.            Croswell underscores this point.   Far from being conclusive,            Dr. Croswell's  diagnosis of depression was  a starting point            from which he and  Atallah hoped to find an  underlying cause            and appropriate  treatment.  While  it is  unlikely that  Dr.            Croswell would have  discovered the tumor before August 9, it                                         -18-                                          18            is likely that the  course of treatment they agreed  to would            have ultimately led  to the tumor's discovery had  she upheld            her part of the "contract."  Atallah's own conduct -- perhaps            beyond her own  control because of  her tumor, but  certainly            beyond  Golden Rule's  control  --  hindered  the  diagnostic            process by  her failure to keep  appointments, her reluctance            to undergo expensive tests or hospitalization, and her denial            of the seriousness of her symptoms.            B.  The Rationality of the Jury Verdict            _______________________________________                      Having   concluded  that  the  Symptoms  Clause  is            susceptible  of  but a  single  interpretation,  we can  only            conclude that a rational jury could not decide that Atallah's            tumor  was  anything  other  than  a  preexisting  condition.            Atallah  does  not  dispute that  her  reclusiveness,  severe            depression and impaired judgment were,  in retrospect, caused            by her tumor, that the tumor had existed for many years prior            to the Policy's effective date, or that  Golden Rule obtained            the  requisite opinion of a qualified doctor.  While the jury            might reasonably  have concluded  that an ordinarily  prudent            person  afflicted  with  Atallah's symptoms  would  not  have            sought  diagnosis or treatment for a brain tumor, that is not                                           ___ _ _____ _____            the  test.12   Properly  instructed  on the  law,  a rational                                            ____________________            12.  The district  court  incorrectly permitted  counsel  for            Atallah to argue this  interpretation of the contract  to the            jury,  and we suspect the jury  found the argument appealing.            Although the court instructed the jury that Atallah was bound            by  the  terms of  her contract,  it  refused to  provide any                                         -19-                                          19            jury  could  have reached  no conclusion  other than  that an            ordinarily prudent person whose  mental health and ability or            willingness  to  care for  herself  had  deteriorated to  the            extent  that Atallah's did in the several months prior to the            Policy's  effective  date  would  have  sought  diagnosis  or            treatment  -- just as Atallah actually  did in consulting Dr.            Preston  and  Dr. Croswell.   This  conclusion  is in  no way            undercut  by the  testimony of  Atallah's expert,  Dr. Toran.            Thus,  Atallah's  tumor  falls  squarely  within  the  second            definition of the Policy's preexisting condition clause.                      We recognize that our literal interpretation of the            Policy's Symptoms  Clause may lead  to harsh results  in some            cases.   But  "sympathy  .  .  . cannot  justify  sophistry,"            Hughes,  26  F.3d at  268-69,  and  the Policy  that  Atallah            ______            purchased permits no conclusion other than that her tumor was            a preexisting condition.   Therefore, Golden Rule is entitled            to judgment as a matter of law.  The judgment below is                       Vacated  and  remanded for  the  entry of  judgment                      Vacated  and  remanded for  the  entry of  judgment                      ___________________________________________________            consistent with this opinion.  Costs to appellant.            consistent with this opinion.  Costs to appellant.            ____________________________   __________________                                            ____________________            clarification of what the preexisting condition clause meant,            which would have counteracted counsel's improper argument.                                         -20-                                          20
