Rasmussen v. Blue Cross/Blue Shield United of Wisconsin, Inc.

CANE, C.J.

¶ 13. (dissenting). I respectfully dissent. Everyone agrees that this case ultimately depends on the date "proof of loss is required to be furnished" under Wis. Stat. § 631.83(l)(b). Additionally, everyone agrees that if the fifteen-month limit applies, the action was timely filed. Blue Cross contends that because in this instance Rasmussen was required to file his proof of loss within ninety days of receiving medical services, the action had to be filed within three years and ninety days of receiving medical *127care. However, Rasmussen correctly observes that the insurance policy also permits a proof of loss to be filed as late as fifteen months after the date of receiving medical service when it is not reasonably possible to file it within ninety days of receiving medical care.

¶ 14. The policy in relevant part provides:

WE will still process YOUR claim if:
a: it wasn't reasonably possible for YOU to give US proof of loss within 90 days; and
b: YOU give US proof as soon as YOU reasonably can, but not more than 15 months after YOU receive care.
Claims which are sent to US more than 15 months after YOU receive care will not be processed or paid.

¶ 15. In the event of ambiguity or obscurity, the language of an insurance policy should be construed against the insurance company that drafted the policy. See Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). In this case, the litigants have advanced two reasonable interpretations regarding when the insured is required to file the proof of loss. Blue Cross reasons that under the policy, the proof of loss must be filed within ninety days of receiving medical care unless it was not reasonably possible to give the proof of loss within that time period. It concludes that because Rasmussen has filed the proof of loss within ninety days, the exception does not apply and therefore the ninety-day period was the required time for the proof of loss to be filed. On the other hand, Rasmussen reasons that we should look only to the outer limit for when an insured is required to file the proof of loss. He contends that the fifteen-month period is not an exception, but rather a provision in the policy simply allowing an *128insured to file the proof of loss within fifteen months of receiving medical care.

¶ 16. Additionally, any provision tending to limit the insurance company's liability should be construed most strongly against the insurance company. See INA v. Universal Mtg. Corp., 82 Wis. 2d 170, 178, 262 N.W.2d 92 (1978). Furthermore, while interpretation of a statute of limitations should not unduly prolong the time period during which a suit may be commenced, the interpretation should also be sensitive to protecting access to the courts. See Korth v. American Fam. Ins. Co., 115 Wis. 2d 326, 333, 340 N.W.2d 494 (1983).

¶ 17. Blue Cross's interpretation has the effect of limiting its potential liability for claims by reducing twelve months from the time some policyholders have to commence suit. On the other hand, if Rasmussen's interpretation is correct, all policyholders would be treated equally and would have three years and fifteen months after receiving medical care to file their action. Even though Rasmussen filed his proof of loss within ninety days, I would agree with him that the date the proof of loss was actually filed is irrelevant.

¶ 18. I would conclude that for purposes of determining when "proof of loss is required to be furnished" under Wis. STAT. § 631.83(l)(b), the last date that proof of loss could be filed under the policy is the appropriate date. Thus, the three-year time limit under § 631.83(l)(b) would not begin running until that fifteen-month period expires. Consequently, I would conclude that the action was timely filed.