#### Samuel J. TRUELOVE, Plaintiff-Appellee, v. BLUE CROSS OF LOUISIANA and Louisiana Health Service and Indemnity Co., Defendant-Appellant.

No. 13491.

Court of Appeal of Louisiana, Second Circuit.

Feb. 20, 1978.

En Banc. Rehearing Denied April 4, 1978.

Writ Denied May 19, 1978.

*1114Emmons, Henry & Reeves by W. Jack Emmons, Jonesboro, for defendant-appellant.

Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.

Before BOLIN, PRICE and MARVIN, JJ.

MARVIN, Judge.

From judgment for the insured for benefits under a hospitalization policy ($954) and for attorney’s fees ($500), the insurer appeals. We affirm.

The insurer contends that the medical condition for which benefits were sought pre-existed the policy and that Art. IX of the policy should control since it excludes from coverage such pre-existing conditions during the first year of the policy.1

Emphasizing that no application was attached to the policy as required by R.S. 22:618 (see also R.S. 22:219, 616), the lower court held that no evidence of a pre-exist-ing condition could be admitted or considered, citing *Henderson v. Minn. Mut. Life Ins. Co.,*347 So.2d 53 (La.App.2d Cir. 1977) and *Smith v. North American Co. for Life, Acc. & Health Ins.,*306 So.2d 751 (La.1975).

In *Smith,*the Supreme Court said:

> “. . [T]he trial court . . .erroneously admitted the application for insurance into evidence. Thus all evidence concerning pre-existing conditions not disclosed in the application was improperly considered. Failure to disclose that evidence is not available to the insurer as a defense because a correct copy of the application . . . was not attached to or otherwise made a part of the policy.” *S06 So.2d 754.*

The Supreme Court then concluded:

> “In light of our conclusions, it is unnecessary to consider whether [the insured] had a pre-existing condition prior to the effective date of the insurance . . . ” *ibid, p. 755.*

In *Henderson,*the insurer likewise failed to attach the application to the policy. There, we said:

> “We find, under the ruling of the Supreme Court in *Smith,*supra, that the trial court erred in admitting into evidence the application or any evidence of misrepresentation. The all-inclusive nature of the *Smith*decision also precludes consideration of whether or not plaintiff had a pre-existing condition, prior to the effective date of the insurance, which was responsible for his disability.” *347 So.2d 55.*

*1115The insurer argues here that neither litigant contends a formal application was made or required, that the issue is not a false statement on the application, but instead, the issue is whether the exclusionary provision of the policy should be applied..

While exclusionary provisions of this type are authorized (R.S. 22:213) and are not contrary to the law or public policy *(Muse v. Metropolitan Life Insurance Co.,*193 La. 605, 192 So. 72 (1939)), the issue for our determination is whether our interpretation of *Smith*in *Henderson*is correct.

We recognize that there may be a distinction between the defense based on the insured’s false statement in the application (R.S. 22:219, 616, 618, 619) and the defense based on a policy exclusion of the type at issue here as authorized by R.S. 22:213(A)(13)(b).2*Smith*perhaps may be too inclusive, but it is nonetheless the latest expression of our Supreme Court and we are bound by it.

Under *Smith,*we hold evidence of a preexisting condition is not admissible where a correct copy of the application is not attached to the policy as required by R.S. 22:219, 618, even though the insurer defends solely and exclusively on the basis of a policy exclusion as authorized by R.S. 22:213(A)(13)(b). R.S. 22:211(A); *Henderson,*supra. See also *Spain v. Travelers Ins. Co.,*332 So.2d 827 (La.1976).

At appellant’s- cost, judgment is

AFFIRMED.

1

. The pertinent part of Art. IX reads:

> “A. No Health Care Allowance will be provided for:

> 1. services rendered during the first year of coverage for, or as a result of, any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the Original Effective Date; . . . ”

The evidence here establishes the condition resulting in the hospitalization of the insured’s wife pre-existed the policy. The policy was effective May 15, 1975. On that day, the wife saw a medical doctor. The doctor hospitalized her for further treatment on May 19. The doctor testified that the wife’s condition arose a “few weeks” prior to May 19 and resulted in the hospitalization because of gradually increasing pain.

2

. This section reads:

> “(b) No claim for loss incurred commencing after three years from the date of issue of this policy shall be . denied on the ground that a . . . physical condition . . . had existed prior to the effective date of coverage of this policy.”