IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50621
Summary Calendar
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FREDERICK C. FERMIN,
Plaintiff-Appellant,
VERSUS
METROPOLITAN LIFE INSURANCE COMPANY
and
AIR FORCE ASSOCIATION,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-94-CV-906)
_________________________
February 13, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Frederick Fermin appeals a summary judgment in favor of
Metropolitan Life Insurance Company ("MetLife") and the Air Force
Association. We affirm in part and reverse in part.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
I.
Fermin has insurance coverage under a group hospital indemnity
policy issued to the Air Force Association by MetLife. Virginia
law governs the policy. Although the policy does not specifically
exclude coverage for alcoholism, the accompanying insurance
certificate excludes coverage for "confinement in a place primarily
in the care of drug addicts or alcoholics."
Fermin was hospitalized seven times in an alcoholism-treatment
facility, once in April 1991 and subsequently after April 1993.
The defendants refused to compensate Fermin for the hospitaliza-
tions, claiming that he was not covered for treatment in "place[s]
primarily in the care of drug addicts or alcoholics."
II.
We review a grant of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate "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." FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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III.
Fermin first contends that the district court incorrectly
found that he was not entitled to coverage for the April 1991
hospitalization because his coverage did not begin until December
31, 1991. Fermin maintains that he was covered as of June 1990.
The district court relied on a clause on the third page of the
insurance certificate declaring that Fermin's personal benefits
eligibility date was "the later of: (a) the day [Fermin] became a
member; or (b) December 31, 1991." Taken alone, this clause does
indicate that Fermin's coverage began no earlier than December 31,
but the first page of the insurance certificate suggests otherwise,
informing us that "[t]he Member named above [Fermin] is covered for
the Personal Benefits on the effective date set forth above." The
effective date typed on the certificate is June 1990.
The discrepancy between the first and third pages should have
precluded summary judgment for the defendants. While the defen-
dants may be able to produce additional evidence to explain the
apparent discrepancy, there is nothing in the record before us that
does so. We therefore vacate summary judgment on Fermin's claims
that arise from the April 1991 hospitalization.
IV.
We find no merit in Fermin's other arguments. He raises two
claims for the first time on appeal.
First, Fermin asserts claims that MetLife had a duty to advise
him that the laws of Virginia had changed and that he "was deprived
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of his legal right to make a legal selection for the health
insurance coverage for medical treatment for alcoholism or to
reject said coverage for alcoholism." Because he failed to raise
these issues in the district court, he cannot do so now. See
Savers Fed. Sav. & Loan Ass'n v. Reetz, 888 F.2d 1497, 1501 (5th
Cir. 1989).
Fermin also argues that his insurance policy does not exclude
coverage for confinement in alcoholism-treatment facilities. He
concedes that the insurance certificate does exclude coverage for
"confinement in a place primarily for the care of drug addicts and
alcoholics," but he maintains that under VA. INS. CODE § 38.2-3331,
a certificate of insurance is not part of an insurance contract.
Fermin's reliance on § 38.2-3331 is misplaced. That statute
requires that an insurance certificate include "any limitations,
reductions and exclusions applicable to the coverage provided."
The statute does not state whether such exclusions must also appear
in the insurance policy, but it does not prohibit the policy from
incorporating by reference the exclusions contained in the
insurance certificate. In this case, the policy does specifically
incorporate the insurance certificate by stating that "[t]he
certificate will state the insurance protection to which the Member
is entitled." Fermin's policy therefore does exclude coverage for
confinement in alcoholism-treatment facilities.
Finally, Fermin contends that the court erred by refusing to
apply VA. INS. CODE § 38.2-3413 to hospitalizations that occurred
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after the legislature repealed that statute.1 All of Fermin's
hospitalizations (except the April 1991 hospitalization) occurred
after March 1993, when the legislature repealed § 38.2-3413. We
find no merit in Fermin's contention that the district court
applied the repeal retroactively by refusing to apply the statute
to hospitalizations that occurred after its repeal.
Even assuming that § 38.2-3413 had not been repealed, it would
not apply to Fermin's policy. The statute required that insurance
policies cover alcohol treatment if they provided coverage "on an
expense incurred basis" or were "group subscription contract[s]
which provide[] coverage of a family member of the insured or
subscriber." The district court found that Fermin's policy did not
provide coverage on an expense-incurred basis, and Fermin does not
contest this finding. There is no evidence in the record that the
policy was a "group subscription contract which provides coverage
of a family member of the insured or subscriber." Thus, § 38.2-
3413 would not apply to Fermin's policy.
V.
In summary, the district court's finding that Fermin was not
entitled to coverage for his April 1991 hospitalization is VACATED
and REMANDED. Summary judgment on Fermin's remaining claims is
AFFIRMED.
1
To the extent that Fermin maintains that § 38.2-3413 was not repealed,
he is in error.
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