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

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No. E2017-02049-COA-R3-CV

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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.

10/02/2019
2

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. Miller1sued 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.
3

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.
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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. 
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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.”).
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[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. 

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W. NEAL MCBRAYER, JUDGE