REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2010-05295 BETWEEN INDRA ANNIE RAMJATTAN Claimant AND MEDISERV INTERNATIONAL LIMITED Defendant ********************* Before the Honourable Mme. Justice N. Kangaloo Date of Delivery: June 18, 2014 Appearances: Roger Kawalsingh instructed by Abdel Mohammed for the Claimant/Farid Scoon instructed by Saeed Trotter for the Defendant JUDGMENT The Claim 1. Before this Court is a claim for damages breach of contract. The Claimant entered a contractual relationship with the Defendant, Mediserv International Limited, under a contract known as the "Mediserv Classic Medical Plan" ("the Plan"). Page 1
2. According to the Claimant, the purpose of the Plan was to cover the cost of financing certain illnesses. The Plan of which she was a Member provided coverage for necessary expenses for all illnesses thereby recognised. These various classes of illness included code 9-tumours, cancers, abnormal growth and concretions. The coverage extending to these illnesses commenced from April 1, 2004 and the sum assured was TT$500,000.00, subject to certain exceptions. 3. On January 24, 2007 the Claimant was diagnosed with T4 N2c MO cancer of the naso-pharynx and definitive radiation therapy to a high dose by way of Intensity Modulated Radiation Therapy ("IMRT") was recommended. 4. The Claimant then sought financing from the Plan to cover the expenses of her treatment. She requested an Assignment of Benefit from the Defendant for IMRT for naso-pharynx within 90 days of her stated diagnosis. 5. In response to this request, the Defendant informed the Claimant by letter dated May 28, 2007 as follows: a) You are covered for all treatment that are endemic in Trinidad and Tobago on the plan s effective date, which is 1/Aug/1997 b) Your contributions paid were calculated to cover treatment as described above c) Intensity-Modulated Radiation Therapy commenced in Trinidad and Tobago after 1/Aug./1997 d) Your contributions paid did not cover this type of treatment. e) Therefore, you are ineligible for expenses associated with Intensity- Modulated Radiation Therapy f) You are covered for all expenses that satisfy the terms of the contract. Page 2
6. The Claimant's request was therefore denied. 7. The Claimant contends that her file was improperly closed and that the Defendant breached the contract between them causing loss and damage to her. She also contends that the clauses being relied on by the Defendant to deny her claim do not form part of her contract with the Defendant and moreover that there has been no subsequent revision of the terms of the contract of which she has been advised. As such, the Claimant contends that the effective contract governing her request is that which she signed and entered into on April 1, 2004. The Defence 8. The Defendant avers that it is a provider of risk management services with a duty to preserve the financial viability of a medical fund ("the Fund") and does so via the administration and management of the Fund for the benefit of its members. 9. The Defendant alleges that it has unfettered control over the Fund and is authorised to use its professional judgment to make changes to the rules and conditions associated with the management of the Fund as it sees fit. 10. The Defendant also alleges that this unfettered control allows it to "add, vary or delete any terms or conditions of this agreement at any time without notice." It is the Defendant s assertion that this unfettered right was exercise by its Plan Administrator, the officer responsible for the day to day management of the Plan, resulting in an amended version of the Plan known as PMC 20070301 whereby changes were made to the terms and conditions of the Plan. The Defendant also contends that the Claimant was aware of this later version of the Plan and in fact this was the applicable contract at the time of her request for an Assignment of Benefit. 11. The Defendant further contends that the treatment being claimed for by the Claimant was commenced in Trinidad and Tobago after August 1, 1997 and as Page 3
such was not included among the list of treatments covered in the contract, thereby making her ineligible for the coverage of expenses for said treatment. 12. Additionally, the Defendant contends that the manner in which the Claimant sought reimbursement was not in accordance with the prescribed manner under the contract as she simply submitted a request for an Assignment of Benefit and not a list of expenses incurred. 13. Another contention of the Defendant is that the time frame in which the Claimant is permitted to make a claim for reimbursement has since passed and she is therefore not entitled to be reimbursed. Issues 14. The parties have agreed the following issues arising out of this claim: (i) (ii) Whether the Claimant was covered under the Mediserv Classic Medical Plan (the Plan) or the Medical Fund Contract (Contract No. PMC 20070301 Edition No. 1). Whether IMRT is covered under the Plan. (iii) Whether the Claimant submitted the proper form for reimbursement. (iv) Whether the Defendant wrongly closed the Claimant s file within 60 days. (v) Whether the Claimant s claim is legally barred after one year without invoking litigation in the courts. Analysis 15. The Claimant is of the view that the contract governing the relationship between herself and the Defendant is that of the Plan bearing account number 301271. This is so particularly as the Claimant claims to be unaware of any amendments made to it or to any later versions of the Plan. Page 4
16. The Defendant on the other hand alleges that via its unfettered power, it was well within its rights to make changes to the Plan as it saw fit which resulted in the amended Plan PMC 20070301. 17. The question that then remains is which Plan governed the contractual relationship between the parties at the material time. 18. It is clear that the Claimant accepted the terms and conditions of the April 1, 2004 contract. It is trite law that parties are bound by all the terms and conditions agreed upon in their contract unless otherwise specified. 19. The Claimant seeks to rely on the words appearing under the heading "General Fund Description" that "This description does not contain enforceable conditions" to negate the unfettered power that the Defendant is attempting to exercise. 20. The general rule is that words in a contract are to be interpreted most strongly against he who uses them. This is expressed in the maxim "verba forties accipiuntur contra proferentem". The Claimant therefore submits that the subheading should be construed against the Defendant as the maker of the contract. The Claimant also submits that the Defendant ought not to be allowed to rely on the succeeding clauses, in particular that which permits the Defendant to make changes to the contract, as they are unenforceable and of no effect. 21. If a party wishes headings not be taken into consideration in the interpretation of a contract, this would be expressly stated in the contract. An example of this was seen in the case of Neo Investment Inc. v Cargill International SA [2001] Lloyd s Rep 33, which bears a slight resemblance to the present. In that case the issue was which law would govern the contract between the parties. The clauses in contention were as follows: "Law: this contract shall be governed by English law, and each party expressly submits to the jurisdiction of the English High Court in London. Page 5
General: Incoterms 1980 plus subsequent amendments to apply. In any case, Sonatrach 1990 general terms and conditions, which are well known to buyers, to govern this contract and to prevail. The Incoterms 1980 are not germane to the present dispute. But art 9 of the Sonatrach general terms and conditions 1990 provides as follows: "9.1 This contract will be governed by Algerian law. 22. Attorney for the Respondent argued that the contract was to be governed by Algerian law in light of the provisions under the general clause. Lloyd LJ of the English Court of Appeal in refuting this position had this to say: I am quite unwilling to accept that the effect of those words was to override and nullify the express choice of English law as the governing law of the contract. The generality of the Sonatrach terms and conditions must yield to the specific provisions of the contract in the event of any inconsistency. 23. As such the English law as stipulated in the contract stood as the governing law of the contract. 24. Such interpretation extends to legislation as can be seen from section 11(2) of the Interpretation Act of Trinidad and Tobago Chapter 3:01 which specifically states: Marginal notes and headings in a written law and references to other written laws in the margin of or at the end of a written law form no part of the written law but shall be deemed to have been inserted for convenience of reference only." 25. Similarly, as it pertains to deeds of conveyance, where a recital can be considered analogous in nature to a heading, it has been held that in the construction of the instrument, the recitals are subordinate to the operative part and where the Page 6
operative part is clear it would prevail over any suggestion of a contrary intention gleaned from the recitals. Lord MacNaughten in the case of Orr v Mitchell [1893] AC 238 said: "When the words in the dispositive or operative part of a deed of conveyance are clear and unambiguous they cannot be corrected by reference to other parts of the instrument." 26. In the instant case no mention is made of whether any regard is to be had to headings as they relates to the body of the contract. 27. Indeed, on closer examination, it would appear that the subheading which reads This description does not contain enforceable conditions contradicts some of the powers and authority vested in the Defendant in the ensuing clauses. 28. Although words used in a contract are generally interpreted against their maker if in contention, this is subject to the general principle that the instrument must be construed in accordance with the express intention of the parties (see Halsbury's Laws of England Volume 32, 5 th Edition, paragraph 379). 29. Accordingly, the court must embark on an examination of the intention of the parties and determine whether the subheading, given its natural and ordinary meaning, would result in any inconsistencies with such intention. 30. It is the Claimant s view that the subheading ought to be construed in her favour, it being part of a document drafted by the Defendant who had the opportunity to make clear his intentions. The Defendant, on the other hand, is asking this Court to disregard the words found in the subheading as nonsensical and to give relevance to the body of the contract. 31. When interpreting an instrument, to get the true essence of the instrument one must look at the intention of the parties. To do so the law requires that the Page 7
instrument be looked at as a whole. Halsbury s Laws of England Volume 32 5 th Edition paragraph 375 states: "It is a rule of construction applicable to all written instruments that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses and the words of each clause must be so interpreted as to bring them into harmony with the other provisions of the instrument, if that interpretation does no violence to the meaning of which they are naturally susceptible." 32. The Defendant also submitted the useful case of Glynn v Margetson & Co. [1893] AC 351 which states: "Looking at the whole of the document and seeing what one must regard... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract." 33. More recently in the case of Homburg Houtimport B.V. v Agrosin Ltd [2003] 2 WLR 771, Lord Millet states: "It is a well-established canon of construction that, where there is inconsistency between the printed terms of a standard form and the terms which the parties have themselves written into the document, the latter should prevail: see Robertson v French (1803) 4 East 130 at 136, [1803 13] All ER Rep 350 at 353... This principle is applicable even where the inconsistent provisions are of equal importance and the printed form is appropriate to the particular case as well as to the general. How much more must primacy be given to the written words where they describe the main intent and object of the particular contract." 34. It stands to reason therefore that a heading in a contract should not operate to invalidate that aspect of the contract which serves a vital purpose, as the parties Page 8
could not have intended that the ensuing provisions which are beneficial to both, not be enforced. 35. The Court therefore, in construing the instrument as a whole and to ascertain the intention of the parties, is mindful to lean to the interpretation which will effectuate rather than one which will invalidate an instrument. 36. This is particularly so as the position of the Court in adopting a logical and practical approach must be that a heading or marginal note should not operate to destroy everything coming after, more so when the intention of the parties is clear from the main clauses of the contract. 37. In light of these principles, this Court finds that the words "This description does not contain enforceable provisions" are inconsistent with and would impede and frustrate those clauses following the subheading designed for the effective running and administering of the Plan. 38. Accordingly, this Court determines that the Defendant was properly authorised to make the necessary changes to the Plan as deemed fit and beneficial for the running and administering of the Plan. 39. The Claimant has failed to address the other agreed issues which concern her claim. She makes no mention of whether the IMRT is covered either by the first or second Plan. The Defendant denies that it is covered by either plan. The Defendant states that it became endemic after the August 1, 1997 commencement date of the Plan and therefore was not covered by it. The Claimant has produced no evidence to suggest that IMRT was endemic in Trinidad and Tobago before August 1, 1997. The Defendant also denies that IMRT forms part of those treatments covered at the commencement date of the Plan. 40. The Claimant by her own admission at paragraph 5 of her Statement of Case, states that she requested an Assignment of Benefit from the Defendant for IMRT Page 9
for which she was told she was not covered financially. This is consistent with the Claimant's cross-examination during which at no time did she say she incurred any expenses pertaining to the IMRT but rather put forward an estimate in connection with her Assignment of Benefit request. 41. If this Court is to rely on the 2001 contract as the Claimant contends for, specific mention is therein made of a claim being submitted highlighting expenses incurred before any reimbursement will be considered. Clause 16 of the contract states: "Claims must be submitted within 90 days of incurring eligible expenses otherwise reimbursement shall be declined " 42. A "claim" is defined in this contract's interpretation section as "each submission of documents for reimbursement of eligible expenses per illness per person." 43. The Claimant has also previously made claims to the Defendant and submitted the requisite claim forms and has been reimbursed in the past for expenses incurred in relation to previous cancer treatment. 44. The Claimant cannot therefore now attempt to argue the point of the treatment not yet being started as the reason why she did not adopt the applicable, recognised and previously utilised procedure for reimbursement. It can also therefore be concluded that the Claimant failed to meet the requirements for submitting her claim in respect of the IMRT. 45. Another issue agreed upon and raised by the parties was whether the Defendant wrongly closed the Claimant s file after 60 days. The Claimant was notified of her ineligibility for an Assignment of Benefit and had her file closed within 60 days. The Defendant relies on clause 35 of the new contract which bears resemblance to clause 16 of the old. Again it states emphatically: "Claims must be submitted within 90 days of incurring eligible expenses otherwise reimbursement shall be declined." Page 10
46. Regardless of which clause in either contract is relied upon, it is clearly stated that 90 days is the time frame within which one is allowed to bring a claim. Thus, for the Defendant to close her file after only 60 days is premature and contrary to proper procedure. There was no need to curtail the time period and prevent her the opportunity to bring her claims. 47. However, in this instance and it is the Defendant s position, that there is no evidence that the Claimant submitted any claims in the prescribed form, with her bills for reimbursement, within the 90 day period to the Defendant. 48. Finally the issue of whether the Claimant is legally barred after one year without invoking litigation in the Courts from doing so is to be addressed. Having already determined that the heading found in the 2001 contract does not operate to invalidate the ensuing clauses, the Defendant had the authority to alter the clauses of the initial contract. One of those changes found in the 2007 contract was to include a clause as it pertains to any legal action to be taken. Clause 98 states: "No legal action may be brought to recover on this Membership Plan (a) after the claim is closed (b) before the results of an arbitration process has been delivered and also (c) if, after one year of the occurrence of the loss, written notice of intended legal action has not been given to the Company." 49. Again parties are bound by the terms and conditions to which they agree. Decision 50. The Claimant has failed to address substantial issues on her claim either by failing to prove to what she was entitled in the face of having only made a request for an Assignment of Benefit (as opposed to a claim for reimbursement). Further, the Claimant has not succeeded in adequately demonstrating why the Defendant was Page 11
wrong in the approach that taken in the rejection of her request for an Assignment of Benefit. 51. This Court accordingly orders as follows: a) The Claimant's Claim is hereby dismissed. b) The Claimant to pay to the Defendant prescribed costs of the claim in the sum of $32,700.00 pursuant to Part 67 of the Civil Proceedings Rules, 1998 as amended. c) Stay of Execution 28 days. Dated this 18th day of June, 2014. Nadia Kangaloo Judge Page 12