                                                                                       10/02/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              January 15, 2019 Session

 GEORGE E. MILLER ET AL. v. TRH HEALTH INSURANCE COMPANY
                             ET AL.

                Appeal from the Chancery Court for Sevier County
               No. 16-11-368     Telford E. Forgety, Jr., Chancellor
                     ___________________________________

                          No. E2017-02049-COA-R3-CV
                      ___________________________________


An insured sued his health insurance provider, seeking damages for breach of contract
and bad faith refusal to pay valid insurance claims after coverage was denied for medical
expenses related to the removal of a kidney stone. The defendants moved for summary
judgment based on a benefit exclusion rider to the insurance contract that excluded
coverage for treatment, surgery, or expenses related to kidney stones. The trial court
rejected the insured’s argument that the exclusion rider did not apply and granted
summary judgment to the defendants. Because the defendants were entitled to a
judgment of dismissal as a matter of law based on the undisputed facts, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON II, JJ., joined.

Douglas E. Taylor, Seymour, Tennessee, for the appellants, George E. Miller and Donna
Miller.

Thomas L. Kilday, Greeneville, Tennessee, for the appellees, TRH Health Insurance
Company and BlueCross BlueShield of Tennessee, Inc.
                                               OPINION

                                                    I.

                                                   A.

       In October 2012, George Miller developed a fever with severe abdominal pain.
His primary care physician, Dr. Steven Johnson, initially treated him with IV fluids for
dehydration. Tests later revealed Mr. Miller was suffering from both a staph infection
and a 2.5 centimeter kidney stone. So Dr. Johnson referred Mr. Miller to Dr. Paul
Hatcher, a urologist, for treatment.

        Dr. Hatcher diagnosed Mr. Miller with a recurrent right renal stone. He
recommended lithotripsy to remove the kidney stone and blood work. Before the kidney
stone was removed, Dr. Hatcher prescribed antibiotics and ordered the insertion of a
drainage tube. Dr. Hatcher then removed the kidney stone using percutaneous ultrasonic
lithotripsy. Mr. Miller tolerated the procedure well and was released from Dr. Hatcher’s
care by the beginning of November.

       Mr. Miller had health insurance through the Tennessee Rural Health Improvement
Association (“TRH”). The health insurance contract included a benefit exclusion rider
specific to Mr. Miller. Based on his previous history, the rider excluded coverage for
“any treatment, surgery or expenses relating to kidney stone, gravel or colic of the urinary
system” for seven years.

       Following Mr. Miller’s treatment, his health care providers submitted claims for
payment of medical expenses. Citing the benefit exclusion rider, TRH refused to pay any
claims for medical expenses associated with treatment or surgery related to the kidney
stone. TRH paid all other claims.

                                                    B.

       Mr. and Mrs. Miller1 sued TRH and BlueCross BlueShield of Tennessee, Inc., the
administrator for the health insurance plan, (collectively “TRH”) in the Chancery Court
for Sevier County, Tennessee. The complaint alleged that coverage was wrongfully
denied because Mr. Miller’s “treatment for the kidney stones was necessary as a result of
the infection.” Among other things, the Millers sought damages for breach of contract,
bad faith, and bad faith refusal to pay a legitimate insurance claim.



       1
           Donna Miller was the named insured in the insurance contract.
                                                    2
       Based on the benefit exclusion rider, TRH moved for summary judgment. As
required by Rule 56.03 of the Tennessee Rules of Civil Procedure, TRH filed a statement
of undisputed material facts with specific citations to the record. TRH also filed excerpts
from the depositions of Mr. Miller, Dr. Hatcher, and Dr. Ian Hamilton, corporate medical
director for BlueCross BlueShield, and a declaration from Stephanie McKinney, an
underwriter for TRH.

       The Millers contended that summary judgment was unwarranted because the
benefit exclusion rider did not apply on these facts. Conceding that all but two facts
relied on by TRH were undisputed, they maintained that these two facts plus certain
additional facts demonstrated a genuine issue for trial. In their response to the motion for
summary judgment, the Millers relied on affidavits from Mr. Miller and Dr. Johnson and
additional excerpts from Dr. Hatcher’s deposition.

      The trial court granted TRH’s motion and dismissed the complaint. Based on the
undisputed facts, the court found that the unpaid medical expenses incurred by Mr. Miller
for which suit had been brought fell within the benefit exclusion rider and were not
covered under the health insurance contract.

                                            II.

                                            A.

        Summary judgment may be granted only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary
judgment has “the burden of persuading the court that no genuine and material factual
issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v.
Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, “the
nonmoving party must then demonstrate, by affidavits or discovery materials, that there is
a genuine, material fact dispute to warrant a trial.” Id.

         Here, the party moving for summary judgment does not bear the burden of proof
at trial. Thus, the burden of production on summary judgment could be satisfied “either
(1) by affirmatively negating an essential element of the nonmoving party’s claim or (2)
by demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015); see also Tenn. Code Ann.
§ 20-16-101 (Supp. 2018). Satisfying this burden requires more than a “conclusory
assertion that summary judgment is appropriate,” rather the movant must set forth
specific material facts as to which the movant contends there is no dispute. Rye, 477
S.W.3d at 264.
                                             3
       If a motion for summary judgment is properly supported, the nonmoving party
must then come forward with something more than the allegations or denials of its
pleadings. Id. at 265. The nonmoving party must “by affidavits or one of the other
means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment
stage ‘showing that there is a genuine issue for trial.’” Id. (quoting Tenn. R. Civ. P.
56.06).

       A trial court’s decision on a motion for summary judgment enjoys no presumption
of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary
judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at
763. So we must review the record de novo and make a fresh determination of whether
the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been met.
Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763.

                                                       B.

       As a threshold matter, we address the Millers’ concerns about the content of the
record on appeal. In the court below both sides filed excerpts from depositions taken in a
previous action between the same parties.2 After filing their notice of appeal, the Millers
asked the trial court to include the complete depositions with attached exhibits from the
previous case in the record on this appeal. The court denied their request. The court also
denied a later motion to reconsider.

        The Millers’ challenge is two-fold. First, they maintain that the full depositions
are necessary to provide “context” to the deposition excerpts. But the Millers had the
opportunity to file the full depositions with the trial court before the court reached its
decision. See Byrd, 847 S.W.2d at 211 (explaining the responsibility of the nonmoving
party on summary judgment). As this is a problem of their own making, they are not
entitled to relief on this basis. See Tenn. R. App. P. 36(a).

       Second, they contend that “it is not possible to know” to what extent information
from the first case influenced the trial court’s decision on summary judgment. The
Millers have not pointed to any specific facts relied on by the trial court in granting
summary judgment that are not supported by information in this record. See Tenn. R.
Civ. P. 56.04 (restricting decisions on summary judgment to information on file).



         2
             The Millers’ first action against these defendants was dismissed without prejudice shortly before
trial.

                                                       4
        We find no error in the trial court’s refusal to supplement the record on appeal.
See Tenn. R. App. P. 24(e) (“Absent extraordinary circumstances, the determination of
the trial court is conclusive.”). The record on appeal should be limited to those materials
listed in Tennessee Rule of Appellate Procedure 24(a) and any other materials “necessary
to convey a fair, accurate and complete account of what transpired in the trial court.”
Tenn. R. App. P. 24(g). The full depositions from the prior action were not a part of the
record when the trial court ruled on the summary judgment motion, and in its ruling, the
trial court did not rely on parts of the depositions not excerpted by the parties. See Tenn.
R. Civ. P. 56.04. The Millers have not shown why the full depositions transcripts are
necessary for a fair, accurate, and complete record for this appeal. See Tenn. R. App. R.
24(g).

                                                      C.

        The Millers’ case turns on whether the unpaid claims were excluded from
coverage by the benefit exclusion rider in the health insurance contract.3 The extent of
insurance coverage is a question of law, which we review de novo with no presumption
of correctness. Clark v. Sputniks, LLC, 368 S.W.3d 431, 441 (Tenn. 2012). As with all
contracts, we strive to give effect to the intent of the parties. Id. We give the words used
their plain and ordinary meaning. Id. In the absence of fraud or mistake, we will enforce
the contract as written. Standard Fire Ins. Co. v. Chester O’Donley & Assocs., Inc., 972
S.W.2d 1, 7-8 (Tenn. Ct. App. 1998).

       The benefit exclusion rider specifically excluded coverage for medical expenses
relating to “any treatment, surgery or expenses relating to kidney stone, gravel or colic of
the urinary system” for seven years. Although Mr. Miller did not recall receiving copies
of the benefit exclusion rider, he was aware of the exclusion. And he conceded that the
unpaid bills that are the subject of this lawsuit are related to his kidney stone treatment in
October 2012.

       TRH established that Dr. Hatcher was asked to see Mr. Miller for a 2.5 centimeter
kidney stone. In Dr. Hatcher’s medical opinion, the kidney stone needed to be treated.
Most importantly, he agreed that “the treatment [he] afforded to Mr. Miller during this
period of time in 2012, as well as the diagnosis and lab studies and things of that nature


        3
            The Millers argue for the first time on appeal that the health insurance contract was a contract of
adhesion and the benefit exclusion rider was unconscionable. “[I]ssues not raised in the trial court cannot
be raised for the first time on appeal.” Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153
(Tenn. 1991). Although the Millers attempt to recast their arguments before the trial court as including
unconscionability, our review of the record does not support the contention that the issue was properly
raised. See In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001) (“We are of the opinion that there is
little difference between an issue improperly raised before the trial court at the last minute and one that
was not raised at all.”).
                                                      5
[that he ordered was] treatment, surgery or expenses relating to a kidney stone, gravel or
colic of the urinary system.”

       Dr. Hamilton reviewed the claims submitted for Mr. Miller’s treatment in October
2012 and determined that the vast majority of the claims were for diagnosis codes
excluded by the benefit exclusion rider. TRH did not pay any claims submitted by health
care providers for treatment that included diagnostic codes related to kidney stones. All
other claims were paid.

       Faced with a fully supported motion for summary judgment, the Millers had the
responsibility to “demonstrate, by affidavits or discovery materials, that there [wa]s a
genuine, material fact dispute to warrant a trial.” Byrd, 847 S.W.2d at 211. The Millers
argued that the rider did not specifically exclude treatment for kidney stones when
necessary to treat another medical condition, such as an infection. They submitted
affidavit testimony from Mr. Miller and Dr. Johnson that Mr. Miller was treated for an
infection. And they relied heavily on Dr. Hatcher’s deposition testimony that “when one
has kidney stones and a urinary tract infection, the urinary tract infection adheres to the
stone if the infections are in the kidneys and the infection cannot be cleared unless the
stone is treated and removed.”

        But a factual dispute over the reason for the kidney stone removal does not
preclude the grant of summary judgment. See Rye, 477 S.W.3d at 251-52 (explaining
that not all facts are material and not all factual disputes are genuine for purposes of Rule
56). The language of the benefit exclusion rider is clear. Mr. Miller’s health insurance
contract did not provide coverage for “treatment, surgery or expenses related to a kidney
stone.” The underlying medical reason for the kidney stone removal is not material for
purposes of summary judgment. A factual dispute is only “material if it must be decided
in order to resolve the substantive claim or defense at which the motion is directed.”
Byrd, 847 S.W.2d at 215. Although the treatment may have been for a urinary tract
infection, the unpaid claims were for medical expenses related to kidney stones. As a
result, those claims were excluded from coverage.

                                            III.

       Based on the undisputed facts, the health insurance contract did not provide
coverage for the unpaid claims related to Mr. Miller’s treatment in October 2012. The
trial court properly granted summary judgment to the defendants and dismissed the
complaint. So we affirm.


                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE

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