Kuhn v. Retirement Board

2015 UT App 18_________________________________________________________
THE UTAH COURT OF APPEALS
HEIDI KUHN,
Petitioner,
v.
RETIREMENT BOARD,
PUBLIC EMPLOYEES’ HEALTH PROGRAM,
Respondent.
Opinion
No. 20130503-CA
Filed January 23, 2015
Original Proceeding in this Court
Barton H. Kunz II, Attorney for Petitioner
David B. Hansen, Liza J. Eves, and Erin L. Gill,
Attorneys for Respondent
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.1
ROTH, Judge:
¶1 Heidi Kuhn seeks judicial review of the decision by the
Retirement Board (the Board) to uphold the denial of her claims
for medical coverage by the Public Employees’ Health Program
(PEHP). Kuhn also contends that the Board erred in denying her
request for attorney fees as consequential damages. We decline
to disturb the Board’s decisions.
1. After the case was submitted for decision without oral
argument, see Utah R. App. P. 29(a)(2), Judge James Z. Davis
recused himself and Judge Toomey replaced him on the panel.
Kuhn v. Retirement Board
BACKGROUND
¶2 In 2006, Kuhn had gastric bypass surgery, which involved
the insertion of a Silastic band around her stomach. In October
2008, Kuhn enrolled in a PEHP medical plan. The plan’s Master
Policy excludes from coverage ‚Obesity Surgery such as gastric
bypass . . . , including any present or future Complications‛ as
well as ‚Complications as a result of non-covered or ineligible
Surgery‛ (the Exclusions). Later that month, Kuhn began
experiencing severe abdominal pain and vomiting. Kuhn’s
treating physician determined that the pain and vomiting
resulted from constriction of Kuhn’s stomach and intestines
caused by a shift in the Silastic band. The physician opined that
the band’s movement was probably due to a normal shrinkage
of the stomach. When her condition worsened, Kuhn underwent
emergency surgery to remove the Silastic band.
¶3 PEHP subsequently denied coverage for the emergency
surgery as well as for Kuhn’s follow-up care to the extent those
services related to or arose out of the gastric bypass surgery.2
According to PEHP, removal of the Silastic band constituted a
complication of the gastric bypass surgery, a procedure that the
medical plan expressly excluded from coverage. Kuhn appealed
PEHP’s decision to the Board, and after a hearing on the parties’
cross-motions for summary judgment, the Board affirmed.3 The
Board concluded that ‚*u+nder the clear and unambiguous
2. PEHP did cover other emergency medical services that were
not related to the gastric bypass surgery. This opinion refers only
to those services for which coverage was denied.
3. An adjudicative hearing officer initially affirmed PEHP’s
decision, and the Board formally adopted his decision two
weeks later. We will refer only to the Board’s decision, as it is the
subject of judicial review.
20130503-CA 2 2015 UT App 18Kuhn v. Retirement Board
language of the *medical plan’s+ Master Policy, the movement of
the Silastic band was a Complication as a result of the ineligible
and excluded obesity surgery.‛ The Board also denied Kuhn’s
request that she be awarded attorney fees as consequential
damages for the denial of her medical claims, concluding that
‚an award would not be warranted here based on the . . .
findings and conclusions.‛ Kuhn seeks judicial review of the
Board’s decisions.
ISSUES AND STANDARDS OF REVIEW
¶4 First, Kuhn challenges the Board’s interpretation of the
Master Policy Exclusions to deny coverage. ‚Insurance policies
are contracts,‛ and thus, they must be ‚interpreted under the
same rules governing ordinary contracts.‛ Gee v. Utah State Ret.
Bd., 842 P.2d 919, 920 (Utah Ct. App. 1992); see also Quaid v. U.S.
Healthcare, Inc., 2007 UT 27, ¶ 10, 158 P.3d 525 (noting that ‚an
insurance policy is a contract between two parties‛ and should
be interpreted using contract principles).
¶5 On this issue, Kuhn asserts that the Board ‚mistakenly
concluded that the [Master] Policy clearly and unambiguously
defined the unexplained movement of a Silastic band . . . as a
Complication‛ of her 2006 gastric bypass surgery. Kuhn argues
that, according to the Master Policy’s plain language, neither the
Exclusions nor the definition of the term ‚Complication(s)‛
excludes her emergency surgery from coverage. When ‚the
language within the four corners of the contract is
unambiguous, . . . the contract may be interpreted as a matter of
law,‛ WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88,
¶ 19, 54 P.3d 1139 (citation and internal quotation marks
omitted), and on review, we will afford no deference to the
Board’s interpretation. Alternatively, Kuhn contends that even if
the constriction of her stomach and intestines was a complication
of the gastric bypass surgery, she should not be denied coverage
because the Master Policy is ambiguous regarding the scope of
20130503-CA 3 2015 UT App 18Kuhn v. Retirement Board
coverage for complications that occur as a result of a pre-
enrollment, non-covered surgery. ‚*W]hether a contract is
ambiguous is a question of law.‛ Gee, 842 P.2d at 921 (citation
and internal quotation marks omitted).
¶6 Second, Kuhn contests the Board’s decision to deny her
request for attorney fees as consequential damages. This claim
also depends upon the correctness of the Board’s interpretation
of the Master Policy. See Mahmood v. Ross, 1999 UT 104, ¶ 20, 990
P.2d 933 (explaining that to recover consequential damages,
there must be damage stemming from breach of a contract).
ANALYSIS
I. Interpretation of the Master Policy
¶7 Kuhn’s first contention is that the Board erroneously
interpreted the Master Policy when it denied coverage for the
emergency surgery to remove the Silastic band. Kuhn makes two
alternative arguments in support of her position. First, she
argues that according to the plain language of the Exclusions,
specifically the definition of the term ‚Complication(s),‛ PEHP
ought to have covered the surgery. Second, she asserts that even
if the emergency surgery is a complication of the pre-enrollment,
non-covered gastric bypass surgery, it should nevertheless be
covered because a reasonable person would not read the Master
Policy to exclude complications that do not develop until after
enrollment with PEHP. We address each argument in turn.
A. The Board’s interpretation of the policy Exclusions was
correct.
¶8 Kuhn challenges the Board’s conclusion that the removal
of the Silastic band constituted a complication of the non-
covered gastric bypass surgery. To determine whether Kuhn’s
medical condition was a complication of the gastric bypass
20130503-CA 4 2015 UT App 18Kuhn v. Retirement Board
surgery, we first examine the language of the Master Policy. See
WebBank, 2002 UT 88, ¶¶ 17–18 (explaining that because our
purpose in interpreting contracts is to ascertain the parties’
intent, appellate courts begin the process of interpretation by
‚look*ing+ to the writing itself‛ (citation and internal quotation
marks omitted)). If after ‚consider*ing+ each contract
provision . . . in relation to all of the others, with a view toward
giving effect to all and ignoring none,‛ we determine that the
terms of the contract are unambiguous, id. ¶¶ 18–19 (omission in
original) (citation and internal quotation marks omitted), we
‚interpret those terms in accordance with their plain and
ordinary meaning,‛ Gee, 842 P.2d at 921 (citation and internal
quotation marks omitted). ‚Exclusions from coverage are
interpreted no differently when the policy language is clear.‛
Quaid, 2007 UT 27, ¶ 10.
¶9 Although each party advances a different legal
interpretation of the term ‚Complication(s),‛ neither contends
that it is ambiguous. See Gee v. Utah State Ret. Bd., 842 P.2d 919,
921 (Utah Ct. App. 1992) (explaining that a contract may be
unambiguous even though each party may ‚ascribe[] a different
meaning to it to suit his or her own interests‛). Based on our
analysis, we conclude that the term is not ambiguous because it
is not ‚capable of more than one reasonable interpretation.‛ See
WebBank, 2002 UT 88, ¶ 20 (citation and internal quotation marks
omitted). The medical plan excludes ‚Complications‛ that occur
‚as a result of non-covered or ineligible Surgery.‛ The term
‚Complication(s)‛ is defined by the Master Policy to include any
‚medical condition, illness, or injury related to, or occurring as a
result of another medical condition, illness, injury, or Surgical
Procedure.‛4 Kuhn indisputably developed a ‚medical
4. Kuhn argues that the ‚Complication(s)‛ definition is missing a
comma after the word ‚of‛ that would have set apart the phrase
‚or occurring as a result of‛ from the preceding phrase ‚related
(continued...)
20130503-CA 5 2015 UT App 18Kuhn v. Retirement Board
condition . . . or injury‛—constriction of her stomach and
intestines—that required her to undergo emergency surgery to
correct it. Thus, the only question is whether Kuhn’s medical
condition or injury occurred ‚as a result of‛ her earlier non-
covered and ineligible gastric bypass surgery.
¶10 PEHP contends that we have already determined the
meaning of the phrase ‚as a result of‛ in this context in our
decision in Gee v. Utah State Retirement Board, 842 P.2d 919 (Utah
Ct. App. 1992). In that case, the insured, Gee, sought judicial
review of the Retirement Board’s conclusion that emergency
surgery to remove her silicone breast implants was a
complication of a previous non-covered mastectomy. Id. at 920.
As Kuhn did in this case, Gee underwent a non-covered surgery
(bilateral mastectomy for a non-cancerous condition and
reconstructive insertion of silicone gel implants) before she
enrolled in a PEHP medical plan. Id. After joining PEHP, Gee
underwent further surgery to remove the breast implants, which
to‛ in a grammatically significant way. According to Kuhn, had
the definition read, ‚A medical condition, illness, or injury
related to, or occurring as a result of[,] another medical
condition, illness, injury, or Surgical Procedure,‛ the language
‚occurring as a result of‛ would have refined the meaning and
thereby limited the scope of ‚related to‛ so as to require not just
relationship but causation. We do not address this particular
argument because we accept that the Exclusions themselves
seem to limit the definition to ‚Complications as a result of non-
covered or ineligible Surgery.‛ (Emphasis added.) See WebBank
v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 18, 54 P.3d
1139 (recognizing that in interpreting a contract, appellate courts
must ‚consider each contract provision . . . in relation to all of
the others, with a view toward giving effect to all and ignoring
none‛ (omission in original) (citation and internal quotation
marks omitted)).
20130503-CA 6 2015 UT App 18Kuhn v. Retirement Board
by then had created a debilitating medical condition. Id. The
medical plan had a provision, similar to the one at issue here,
excluding coverage for ‚Complications as a result of [any]
ineligible surgery.‛ Id. PEHP, and later the Board, denied Gee
coverage for the surgery to remove the implants on the basis that
it was a complication ‚as a result of‛ the ineligible mastectomy
and implantation. Id. We declined to disturb that decision. Id. at
921.
¶11 Although she recognizes the similarities between Gee and
her case, Kuhn contends that Gee should not apply here because
it is distinguishable in two significant ways.5 First, she argues
that her case is factually dissimilar because in Gee the breast
implants failed whereas in her case the medical condition or
injury arose from ‚normal bodily changes.‛ Second, she asserts
that the medical plan at issue in Gee ‚did not include a provision
defining complication as is the case here‛ and Gee’s plain
language approach therefore does not address whether Kuhn’s
emergency surgery constitutes a complication as a result of the
non-covered gastric bypass surgery under her medical plan. We
conclude that the distinctions Kuhn identifies are not legally
significant.
¶12 Kuhn contends that Gee is distinguishable from her case
because the medical condition requiring surgery in Gee was
caused by a ‚failure‛ of the silicone implants, id. at 920–21,
whereas Kuhn’s condition arose from ‚normal bodily changes.‛
It is not apparent, however, that our use of the word ‚failure‛ in
5. In her brief, Kuhn asserts a third basis for distinguishing Gee:
Gee’s attorney conceded that Gee’s post-enrollment surgery was
not covered. See Gee v. Utah State Retirement Board, 842 P.2d 919,
921 n.1 (Utah Ct. App. 1992). We agree that Kuhn’s case is
distinguishable from Gee in that regard. However, this
distinction does not render Gee’s reasoning inapplicable.
20130503-CA 7 2015 UT App 18Kuhn v. Retirement Board
Gee was a reference to some fault in the silicone implant surgery
or a defect in the implants themselves. See id. But even assuming
that it was, we are not persuaded that there is a legal distinction,
in the context of this health insurance coverage case, between a
complication that stems from negligent surgery or defective
materials and a complication that develops after a competent
operation involving the use of defect-free materials. Indeed,
nothing in the plain meaning of the definition of
‚Complication(s)‛ or any other language of the policy requires a
finding of negligence or the use of defective materials in the
original surgery for the exclusion of complications from prior
non-covered procedures to apply. Rather, all that is required is
that the complication have occurred ‚as a result of‛ the excluded
procedure.
¶13 Kuhn also argues that her case differs from Gee because,
unlike the policy in that case, the Master Policy here defines the
term ‚Complication(s).‛ We disagree that the ‚Complication(s)‛
definition distinguishes this case from Gee in any legally
meaningful way. The Master Policy in this case defines
‚Complication(s)‛ to include any ‚medical condition, illness, or
injury . . . occurring as a result of another medical condition,
illness, injury, or Surgical Procedure.‛6 However, the phrase ‚as
a result of‛ is not further defined, and thus, we must afford it its
ordinary meaning. Id. The plain meaning of ‚as a result‛ is
‚consequently,‛ As a Result, The Free Dictionary, http://legal-
dictionary.thefreedictionary.com/as+a+result (last visited
January 5, 2015), or ‚something that is caused by something else
that happened or was done before,‛ Result, Merriam–Webster
Online, http://www.merriam-webster.com/dictionary/result (last
visited January 5, 2015). This is essentially the same definition
we applied in Gee using the plain language approach to define
6. As we explained in note 4, we have omitted the ‚related to‛
language from the definition of ‚Complication(s).‛
20130503-CA 8 2015 UT App 18Kuhn v. Retirement Board
an undefined term. In Gee, we determined that a complication
that arises ‚as a result of‛ another medical procedure is an ‚issue
often appearing suddenly and unexpectedly‛ ‚as a consequence,
effect, or conclusion‛ of some medical procedure. Gee, 842 P.2d
at 921 (emphasis added) (citations and internal quotation marks
omitted). Thus, although Gee required us to interpret the medical
plan without the benefit of an express definition of
‚complication,‛ our conclusions about the term’s meaning in Gee
and in this case are essentially identical because the crucial
concept connecting the original excluded surgery with the
subsequent procedure is the same—‚as a result of.‛ In other
words, in both Gee and this case, for a complication to result
from an earlier surgery, it had to occur ‚as a consequence‛ of
that earlier surgery, id., or be the ‚something that is caused by
something else that happened or was done before,‛ Result,
Merriam–Webster Online. And because our contractual analysis
in Gee does not differ in any significant way from our approach
here, the fact that ‚Complication(s)‛ is defined in the Master
Policy at issue in this case does not distinguish it from Gee.
¶14 Kuhn nevertheless contends that this interpretation of the
contract language is simply wrong, arguing that the phrase ‚as a
result of‛ implies a causation standard more stringent than
‚consequently.‛ In this regard, Kuhn is dismissive of the concept
of ‚but-for‛ causation, arguing that to qualify as a complication
under the Master Policy, the original gastric bypass surgery
must have been the ‚mechanism‛ or a ‚proximate cause‛ of the
stomach and intestine constriction that led to the emergency
surgery to remove the Silastic band and not simply
consequentially related to the prior surgery in a ‚but-for‛ sense.7
7. In her brief, Kuhn states that she ‚does not dispute the Board’s
conclusion that her pre-enrollment [gastric bypass] surgery was
a but-for cause of her injury.‛ She contends only that ‚but-for‛
causation is insufficient.
20130503-CA 9 2015 UT App 18Kuhn v. Retirement Board
She contends that because the only evidence of the cause of the
Silastic band’s movement was normal bodily changes after the
surgery, the surgery itself did not proximately cause her medical
condition in 2008. Kuhn relies on tort cases, including Raab v.
Utah Railway Co., 2009 UT 61, 221 P.3d 219, and Proctor v. Costco
Wholesale Corp., 2013 UT App 226, 311 P.3d 564, to support this
position. See generally Raab, 2009 UT 61, ¶¶ 22–23 & n.17 (noting
that in negligence cases ‚there must be some greater level of
connection between the act and the injury than mere ‘but for’
causation‛ because the ‚‘cause in fact [or but for]’ inquiry asks
only whether a defendant’s negligence, as a factual matter,
played a role in bringing about the plaintiff’s injury, *while+ the
‘legal [proximate] cause’ inquiry focuses on the question of
whether liability should attach to a particular cause in fact‛);
Proctor, 2013 UT App 226, ¶ 10.
¶15 In asking us to adopt a ‚proximate cause‛ standard,
however, Kuhn is attacking the continued viability of the Gee
precedent.
Those asking [appellate courts] to overturn
prior precedent have a substantial burden of
persuasion. See State v. Hansen, 734 P.2d 421, 427
(Utah 1986). This burden is mandated by the
doctrine of stare decisis. In State v. Thurman, 846
P.2d 1256 (Utah 1993), [the Utah Supreme Court]
discussed stare decisis in the context of multiple
panels of the court of appeals and emphasized the
importance of its observance: ‚This doctrine, under
which the first decision by a court on a particular
question of law governs later decisions by the same
court, is a cornerstone of the Anglo-American
jurisprudence that is crucial to the predictability of
the law and the fairness of adjudication.‛ Id. at
1269.
20130503-CA 10 2015 UT App 18Kuhn v. Retirement Board
State v. Menzies, 889 P.2d 393, 398–99 (Utah 1994). In other
words, once a point of law has been decided, we will not
overturn it lightly; rather, we must be ‚convinced that there has
been a change in the controlling authority, or that our prior
decision was clearly erroneous.‛ State v. Ingleby, 2004 UT App
447, ¶ 7, 104 P.3d 657 (citing Menzies, 889 P.2d at 399 n.3). Kuhn
has not met that burden, as Gee is clearly the controlling
authority and Kuhn has not demonstrated any error in that
decision, much less clear error.
¶16 The proximate cause principle is a development of tort
law, and Kuhn has not made a persuasive case for simply
importing tort causation principles into the interpretation of a
contract provision dealing with events that ‚occur*+ as a result
of‛ excluded surgical procedures. Certainly in this case the
concept of ‚but-for‛ causation does not trivialize the relationship
between the surgery that inserted the Silastic band and the
emergency surgery that removed it in the way that the tort cases
reject. This is not the kind of circumstance where the antecedent
event’s link to an ultimate effect is attenuated, such as where the
decision to take one route to work over another results in an
accident that would not have occurred ‚but for‛ that otherwise
innocuous choice. On the contrary, the band itself was the sine
qua non of the subsequent medical condition and emergency
operation, not simply a trivial link in an attenuated ‚but-for‛
causation chain.8
8. Kuhn alternatively contends that the Master Policy’s definition
of ‚Complication(s)‛ commands at least a ‚causal nexus‛
relationship. The ‚causal nexus‛ standard is ‚more than ‘but-for’
causation, but less than legal, proximate cause.‛ Viking Ins. Co. of
Wis. v. Coleman, 927 P.2d 661, 664 (Utah Ct. App. 1996). This is
the standard we have imposed in an automobile insurance case
to determine whether damages for bodily injury or property
damage arose out of a car accident so as to be covered by the
(continued...)
20130503-CA 11 2015 UT App 18Kuhn v. Retirement Board
¶17 In summary, the constriction of Kuhn’s stomach and
intestines was ‚a result of‛ her pre-enrollment gastric bypass
surgery and thus amounted to a complication of that non-
covered surgery. Such a complication is expressly excluded from
coverage by the plain language of the Master Policy’s Exclusions.
B. There is no ambiguity regarding the scope of coverage for
complications that result from pre-enrollment, non-
covered surgeries.
¶18 Kuhn contends that even if the medical condition was a
complication of the gastric bypass surgery, she should not have
been denied coverage because the Master Policy is ambiguous
regarding the scope of coverage for complications from a pre-
enrollment, non-covered surgery that developed after
enrollment with PEHP. The Exclusions preclude coverage for
‚Obesity Surgery such as gastric bypass . . . , including any
present or future Complications‛ as well as ‚Complications as a
result of non-covered or ineligible Surgery.‛ According to Kuhn,
‚a person of ordinary intelligence and understanding‛ would
not have read these Exclusions to include ‚complications from a
surgery that occurred years before enrollment.‛ Rather, she
contends, a reasonable person would ‚interpret ‘include*d+’
complications and complications resulting from non-covered or
governing automobile policy. Id. at 663–64. In that context, we
interpreted the contractual phrase ‚arises out of‛ to require more
than ‚but-for‛ causation. Id.It may be argued that the facts of both Gee and this case
satisfy this intermediate standard. We do not adopt the ‚causal
nexus‛ standard in the instant case, however, because the Master
Policy’s plain language does not appear to require it.
20130503-CA 12 2015 UT App 18Kuhn v. Retirement Board
ineligible surgeries as those linked to . . . post-enrollment obesity
surgeries.‛ (Alteration in original) (emphasis added).9
¶19 Although Kuhn does not label her argument as such, she
seems to be taking a position akin to the reasonable expectations
doctrine. ‚*T+he reasonable expectations doctrine authorizes a
court confronted with an adhesion contract to enforce the
reasonable expectations of the parties under certain
circumstances.‛ Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272,
1275 (Utah 1993); Russ v. Woodside Homes, Inc., 905 P.2d 901, 906
n.1 (Utah Ct. App. 1995) (defining an adhesion contract as ‚an
agreement forced on one party by another who has superior
bargaining strength‛); see also Mellor v. Wasatch Crest Mut. Ins.
Co., 2009 UT 5, ¶ 16, 201 P.3d 1004 (noting that ‚*i+nsurance
contracts are generally drafted by the insurance companies and
allow no opportunity for negotiation of the terms by the
9. Kuhn also asserts that a person of ordinary intelligence and
understanding would not have realized that the denial in this
case was based on the exclusion of complications from the
ineligible gastric bypass surgery because ‚that clause was not
initially cited by PEHP as the basis of the denial.‛ The letter
Kuhn cites in support of her assertion, however, informs her that
the Master Policy’s Exclusions listed ‚‘Obesity surgery such as
gastric bypass . . . including any present or future
complications,’‛ that PEHP had ‚determined the services . . .
were related to the non covered weight loss surgery,‛ and that
coverage for the emergency surgery ‚would therefore be
denied.‛ Although PEHP did not expressly state that it had
determined that the emergency surgery was a complication of
the non-covered gastric bypass surgery, that conclusion can be
reasonably inferred from PEHP’s reference to the Exclusions, its
subsequent determination that the emergency surgery was
related to a non-covered surgery, and its denial of coverage on
this basis.
20130503-CA 13 2015 UT App 18Kuhn v. Retirement Board
insured‛). Kuhn contends that because the Exclusions can
plausibly be read to exclude only surgeries (and resulting
complications) performed after enrollment, that interpretation
ought to be adopted under the principle that ambiguities in
insurance contracts are interpreted in favor of coverage, not
against it. See Mellor, 2009 UT 5, ¶ 16 (explaining that appellate
courts ‚interpret insurance policies liberally in favor of the
insured‛ and therefore ‚when an ambiguity exists in an
insurance contract, that ambiguity is interpreted in favor of
coverage‛). As an initial matter, we note that the Board could not
have violated the reasonable expectations doctrine because Utah
courts have declined to adopt it. Kramer v. State Ret. Bd., 2008 UT
App 351, ¶ 25, 195 P.3d 925. But more importantly, Kuhn has not
established any ambiguity in the Master Policy’s language, a
prerequisite to interpretation in favor of coverage under either
the reasonable expectations doctrine, Alf, 850 P.2d at 1275, or the
principles for interpreting insurance contracts generally, Mellor,
2009 UT 5, ¶ 16.
¶20 ‚Contract language may be ambiguous if it is unclear,
omits terms, or if its terms used to express the intention of the
parties may be understood to have two or more plausible
meanings.‛ Gee v. Utah State Ret. Bd., 842 P.2d 919, 921 (Utah Ct.
App. 1992) (citation and internal quotation marks omitted).
Kuhn asserts that the Exclusions language is ambiguous by
pointing to the portion of the Master Policy that states that
coverage begins after enrollment. But the fact that coverage does
not begin until after enrollment does not by itself create a
question about the scope of the Exclusions. The Exclusions
clearly exclude coverage for ‚Obesity Surgery such as gastric
bypass . . . , including any present or future Complications.‛
(Emphasis added.) They do not include any apparent limitation
on the timing of the original obesity surgery relative to
enrollment in the PEHP medical plan or any contingency
coverage if a complication from a pre-enrollment, non-covered
surgery develops after enrollment in the PEHP plan. And the
plain meaning of ‚future,‛ see id. (explaining that when the
20130503-CA 14 2015 UT App 18Kuhn v. Retirement Board
language is unambiguous, we accord it its ordinary meaning), is
‚coming after the present time,‛ i.e., the time of the surgery,
Future, Merriam–Webster Online, http://www.merriam-
webster.com/dictionary/future (last visited January 5, 2015).
Thus, the Exclusions language is clear, and a person of ordinary
intelligence could not, as a matter of law, have reasonably
understood it to mean that complications as a result of a pre-
enrollment, non-covered gastric bypass surgery would be
covered, while complications from a post-enrollment ineligible
surgery would not be. See Gee, 842 P.2d at 921 (concluding, even
in the absence of the explicit exclusion of future complications,
that the PEHP Master Policy unambiguously excluded a post-
enrollment surgery when the surgery was necessitated by
‚[c]omplications as a result of other ineligible surgery‛
(alteration in original)). Consequently, Kuhn’s alternative
argument also fails to demonstrate that the Board erred when it
upheld PEHP’s decision to deny benefits for the emergency
surgery.
II. Attorney Fees
¶21 Finally, Kuhn argues that the Board erred in denying her
request for attorney fees as consequential damages of the denial
of her claims. To recover consequential damages, a plaintiff must
have demonstrated that there was a contract breach resulting in
foreseeable and ascertainable damages. Mahmood v. Ross, 1999
UT 104, ¶ 20, 990 P.2d 933. Because we have upheld the Board’s
decision to grant summary judgment to PEHP on the ground
that the Master Policy does not provide coverage for the
emergency surgery or follow-up treatment, there was no breach
of contract, and thus, Kuhn is not entitled to collect damages. We
therefore decline to disturb the denial of attorney fees without
undertaking any further analysis.
20130503-CA 15 2015 UT App 18Kuhn v. Retirement Board
CONCLUSION
¶22 We decline to disturb the Board’s decision to uphold
PEHP’s denial of coverage for Kuhn’s emergency surgery and
follow-up care because the constriction on Kuhn’s stomach and
intestines was a result of a non-covered surgery and therefore
constituted an excluded complication. Because the Master Policy
clearly excludes coverage for future complications of a non-
covered surgical procedure, we also reject Kuhn’s alternative
claim that the policy was ambiguous regarding post-enrollment
complications occurring as a result of pre-enrollment, non-
covered surgeries and that, as a consequence, she could
reasonably expect that such a complication would be covered. It
follows from our conclusion that the Master Policy excluded
coverage for Kuhn’s emergency surgery and follow-up care that
she is not entitled to damages for wrongful denial of her claims.
Accordingly, we decline to disturb the Board’s decision to deny
Kuhn’s request for consequential damages in the form of
attorney fees.
20130503-CA 16 2015 UT App 18