- 1 -

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

GENERAL COLLECTION CO. V. LEAMAN

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

GENERAL COLLECTION CO., APPELLEE,

V.

RALISA LEAMAN AND MICHAEL LEAMAN, APPELLANTS,

AND GOLDEN RULE INSURANCE COMPANY, APPELLEE.

Filed June 6, 2023. No. A-22-406.

Appeal from the District Court for Hall County: PATRICK M. LEE, Judge, on appeal thereto 

from the County Court for Hall County: ALFRED E. COREY III, Judge. Judgment of District Court

reversed and remanded for further proceedings.

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, for appellants.

Kalissa A. Kleine, of Stinson Leonard Street, L.L.P. for appellee Golden Rule Insurance 

Company.

PIRTLE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.

PIRTLE, Chief Judge.

INTRODUCTION

Ralisa Leaman and Michael Leaman appeal from an order of the district court for Hall 

County denying the Leamans’ partial motion for summary judgment and granting Golden Rule 

Insurance Company’s motion for summary judgment, finding there was no genuine issue of 

material fact as to coverage of the Leamans’ claim under the insurance policy between the parties 

and that Golden Rule was entitled to judgment as a matter of law. We conclude that genuine issues 

of material fact preclude the entry of summary judgment and therefore reverse the trial court’s 

order and remand the cause for further proceedings.
- 2 -

BACKGROUND

This action began as a collection case filed by General Collection Co. against the Leamans 

to collect a debt owed to Surgery Group of GI for medical services provided to Ralisa. Ralisa had 

a lump in her breast biopsied in March 2019, which led to a diagnosis of breast cancer. She 

subsequently underwent treatment for breast cancer.

The Leamans filed an answer and third-party complaint against Golden Rule in response 

to General Collection’s complaint. The Leamans agreed with most of the allegations set forth in 

General Collection’s complaint but alleged that Golden Rule was liable for the medical bills owed 

to Surgery Group of GI.

Regarding the third-party complaint against Golden Rule, the Leamans alleged the 

existence of a medical insurance policy between the Leamans and Golden Rule and that Golden 

Rule had improperly denied coverage and benefits for Ralisa’s breast cancer treatments and 

expenses on the basis that her breast cancer was a preexisting condition excluded from coverage 

under the policy. The Leamans brought three causes of action against Golden Rule: contractual 

indemnity under the insurance contract, damages for the bad faith denial of benefits of the 

insurance contract, and declaratory judgment that all medical bills and expenses related to Ralisa’s 

breast cancer treatments were covered by the insurance contract and Golden Rule.

Golden Rule denied the Leamans’ allegations and alleged affirmative defenses, including 

that the insurance contract was “potentially void due to fraud” and “subject to recission for 

intentional omissions and/or misstatements made in the application.”

As between General Collection and the Leamans, General Collection was granted summary 

judgment and obtained a judgment against the Leamans in the amount of $6,568.13.

Golden Rule subsequently filed a motion for summary judgment regarding the Leamans’

third-party complaint, and the Leamans filed a cross-motion for partial summary judgment. A 

hearing on both motions followed. Golden Rule argued that coverage for Ralisa’s breast cancer 

treatment did not exist under the policy because of a preexisting condition exclusion. The Leamans 

argued that exhibit 5 presented by and relied upon by Golden Rule was inadmissible and that 

Golden Rule waived reliance on its preexisting condition argument because it retained the 

Leamans’ insurance premiums. The Leamans also argued that they were entitled to partial 

summary judgment on the issue of insurance coverage for Ralisa’s breast cancer treatments and 

expenses. They further argued that if they were not entitled to partial summary judgment, disputed 

issues of fact prevented Golden Rule from being granted summary judgment.

Evidence at the summary judgment hearing established that the Leamans applied for a 

short-term medical insurance policy with Golden Rule on December 19, 2018. Coverage under 

that policy became effective on December 21 for injuries, and December 26 for illnesses.

The topic of preexisting conditions is addressed throughout the insurance application and 

agreement. First, in the “Statement of Understanding” section of the application it states: “No 

benefits will be paid for a health condition that exists prior to the date insurance takes effect.”
- 3 -

Second, the policy provides two specific definitions for “preexisting condition” as follows:

“Preexisting condition” means a condition:

A. For which medical advice, diagnosis, care or treatment was recommended or 

received within the 24 months immediately preceding the date the covered person became 

insured under the policy; or

B. That had manifested itself in such a manner that would have caused an ordinarily 

prudent person to seek medical advice, diagnosis, care or treatment within the 12 months 

immediately preceding the date the covered person became insured under the policy.

Finally, the insurance policy has a specific section entitled “Preexisting Conditions” which 

states: “Preexisting conditions will not be covered under the policy.”

The evidence also included “Claimant’s Statement and Authorization” which Ralisa 

completed and submitted to Golden Rule in April 2019 seeking insurance coverage for her breast 

cancer treatment. The form asked Ralisa how the condition began and to set out all symptoms and 

describe the condition in detail, from the beginning. Ralisa’s response stated: “Presence of 

abnormality in January 2019 which resulted in a biopsy.” The form also states that by signing the 

form, Ralisa was authorizing the release of any medical records necessary “to Golden Rule 

Insurance Company, a UnitedHealthcare company, or any agent or independent administrator 

acting on its behalf” in order to process her claim.

In the Leamans’ responses to requests for admissions they admitted that Ralisa was aware 

of a lump in her left breast prior to December 19, 2018, but denied that she had any knowledge 

that the lump was cancerous or a reason to be medically concerned prior to December 19, 2018. 

They also admitted that Ralisa discussed the lump in her left breast with Katie L. Peters, also 

known as Katie L. Peters Settje (Settje), APRN, NP-C, at an August 30, 2018, office visit at Family 

Practice of Grand Island.

In the Leamans’ answers to interrogatories, they stated that Ralisa first noticed a lump in 

her left breast in October 2014, but at that time there was no indication the lump was cancerous or 

needed further medical attention. The answers also state that Settje was one of the medical 

providers made aware of the lump in October 2014, and that Ralisa was advised to have a 

mammogram and ultrasound, which she did.

Ralisa’s medical records from Family Practice of Grand Island and Saint Francis Cancer 

Center were offered into evidence by Golden Rule as exhibit 5. The Leamans objected to the 

exhibit based on hearsay, authentication, and foundation. The objection was taken under 

advisement.

The first page of exhibit 5 contains a letter from Golden Rule to Family Practice of Grand 

Island asking for Ralisa’s medical records in order to complete a review of Ralisa’s insurance 

claim. The request states that authorization had been obtained from Ralisa and a copy was on file 

with Golden Rule. The remainder of exhibit 5 consists of Ralisa’s medical records.

Ralisa’s medical records contained in exhibit 5 show that she underwent a mammogram 

on April 3, 2018. The results were “negative,” but found that “the breasts are extremely dense, 

which diminishes the sensitivity of mammography. There are no dominant masses or suspicious 

microcalcifications in either breast.” The report from the mammogram also warned that “a 
- 4 -

negative report should not delay a biopsy if a clinically suspicious mass is present. Some cancers 

are not identified by x-ray.”

In addition, Ralisa’s medical records show that she discussed the lump in her breast with 

Settje during an August 30, 2018, doctor visit for an unrelated issue. Specifically, the patient visit 

notes from that day state: “Has also had a small palpable lump, left inframammary area, present 

for years, has been imaged in the past, she wonders about having this excised. She does not feel it 

has changed.” The notes from that visit further state:

In regards to the inframammary area soft tissue mass, this has not changed for years she is 

wondering about having it excised, discussed with her that we could refer to a surgeon to 

have this evaluated, she will consider this and let us know [if] she would like to follow up 

with us.

Following the hearing, the court found exhibit 5 admissible based on the business records 

exception to the hearsay rule and overruled the Leamans’ objections. The court overruled the 

Leamans’ motion for partial summary judgment seeking an order that Golden Rule was required 

to provide insurance coverage finding that they failed to meet their burden. The court further found 

they failed to meet their burden that they are entitled to a judgment as a matter of law as to any of 

their causes of action against Golden Rule. The court granted Golden Rule’s motion for summary 

judgment finding that the lump biopsied in March 2019 leading to a diagnosis of breast cancer was 

a preexisting condition not covered under the insurance policy issued by Golden Rule. It concluded 

that there was no genuine issue of material fact as to coverage of the Leamans’ claim and Golden 

Rule was entitled to judgment as a matter of law.

ASSIGNMENTS OF ERROR

The Leamans assign that the trial court erred in: (1) granting Golden Rule’s motion for 

summary judgment and denying their motion for partial summary judgment, (2) admitting exhibit 

5 into evidence over their hearsay, authentication, and lack of foundation objections, (3) failing to 

find that the policy provided coverage for Ralisa’s breast cancer treatments based on the 

undisputed admissible evidence, (4) determining that the policy did not cover Ralisa’s breast 

cancer treatments despite the doctrine of waiver due to Golden Rule’s retention of the Leamans’

premiums, (5) failing to interpret the plan to find coverage for Ralisa’s breast cancer treatments, 

and (6) granting Golden Rule’s motion for summary judgment based on an absence of undisputed 

facts and inferences, even if exhibit 5 was properly admitted and coverage was not created due to 

Golden Rule retaining the Leamans’ premiums.

STANDARD OF REVIEW

A trial court has the discretion to determine the relevancy and admissibility of evidence, 

and such determinations will not be disturbed on appeal unless they constitute an abuse of that 

discretion. Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72 (2022). In a 

civil case, the admission or exclusion of evidence is not reversible error unless it unfairly 

prejudiced a substantial right of the complaining party. Id.

Apart from rulings under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the 
- 5 -

court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on 

hearsay grounds. O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).

An appellate court affirms a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate 

inferences that may be drawn from the facts and that the moving party is entitled to judgment as a 

matter of law. Evans v. Freedom Healthcare, 311 Neb. 336, 972 N.W.2d 75 (2022). In reviewing 

a summary judgment, an appellate court views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence. Id.

The interpretation of an insurance policy is a question of law, in connection with which an 

appellate court has an obligation to reach its own conclusions independently of the determination 

made by the lower court. North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195 (2022).

ANALYSIS

The Leamans have alleged six assignments of error which we have consolidated into three: 

the trial court erred in admitting exhibit 5 into evidence over their hearsay, authentication, and lack 

of foundation objections; the trial court erred in determining that the policy did not cover Ralisa’s 

breast cancer treatments because Golden Rule had waived its preexisting condition argument by 

retaining the Leamans’ premiums; and the trial court erred in granting Golden Rule’s motion for 

summary judgment and denying their motion for partial summary judgment.

Admission of Exhibit 5.

The Leamans assign that the trial court erred in admitting exhibit 5, Ralisa’s medical 

records, into evidence over their objections based on hearsay, insufficient authentication, and lack 

of foundation to establish any exception to the hearsay rule. Golden Rule argued exhibit 5 was 

admissible under the hearsay exception for statements made for medical treatment and/or the 

exception for business records.

The trial court relied on other admitted evidence in determining the admissibility of exhibit 

5 and concluded that exhibit 5 was admissible pursuant to Neb. Rev. Stat. § 27-803(6)(b) (Cum. 

Supp. 2022), the business records exception to the hearsay rule. Specifically, the court relied on 

exhibit 1, an affidavit of Kimberly K. Moeller, a Legal Services Specialist for United HealthCare 

Services, Inc., Golden Rule’s parent company. Moeller’s affidavit states that she handles matters 

on behalf of Golden Rule. It further states that as part of Golden Rule’s claims administration 

process Golden Rule requests that insureds complete a “Claimant’s Statement and Authorization,”

and that these are kept and maintained by Golden Rule in the ordinary course of business and that 

she had reviewed Ralisa’s statement and authorization. The affidavit also states that as part of its 

claims administration process, Golden Rule obtains, with the insured’s authorization, records from 

healthcare providers or facilities having information as to the care, advice, treatment, diagnosis, or 

prognosis of any physical or mental condition of the insured. Moeller’s affidavit identified exhibit 

5 as “[a] true and correct copy of [Ralisa’s] medical records from Family Practice of Grand Island 

PC regarding a visit on August 30, 2018, which is kept and maintained by Golden Rule in the 

ordinary course of business.”
- 6 -

The Leamans first argue that Moeller’s affidavit did not properly authenticate exhibit 5, as 

required by Neb. Rev. Stat. § 27-901 (Reissue 2016). They contend that Moeller was not a qualified 

person to authenticate documents created by Ralisa’s medical providers and received by Golden 

Rule in the course of litigation.

Authentication or identification of evidence is a condition precedent to its admission and 

is satisfied by evidence sufficient to support a finding that the matter in question is what its 

proponent claims. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020), 

citing § 27-901(1). A proponent of evidence is not required to conclusively prove the genuineness 

of the evidence or to rule out all possibilities inconsistent with authenticity. AVG Partners I v. 

Genesis Health Clubs, supra. Section 27-901(2) offers examples of authentication or identification 

conforming with the requirements of the rule, including, testimony that a matter is what it is 

claimed to be; and appearance, contents, substance, internal patterns, or other distinctive 

characteristics, taken in conjunction with circumstances.

Because authentication rulings are necessarily fact specific, a trial court has discretion to 

determine whether evidence has been properly authenticated. O’Brien v. Cessna Aircraft Co., 298 

Neb. 109, 903 N.W.2d 432 (2017). An appellate court reviews the trial court’s ruling on 

authentication for abuse of discretion. Id.

The court found that Moeller’s affidavit established that the contents of exhibit 5 were 

medical records. We agree that the affidavit satisfied the authentication requirement. It provided 

the court with sufficient evidence to show that exhibit 5, specifically the document from August 

30, 2018, was what Golden Rule purported it to be – Ralisa’s medical records. In addition, the 

appearance, contents, and substance of exhibit 5 taken in conjunction with circumstances clearly 

demonstrated that it contained Ralisa’s medical records. Exhibit 5 appears to be medical records. 

The relevant circumstances demonstrating that the exhibit contains Ralisa’s medical records 

include Moeller’s statement that Golden Rule requests insureds to complete a “Claimant’s 

Statement and Authorization” and Ralisa’s signed statement and authorization was entered into 

evidence, in which she authorized the release of any medical records to Golden Rule, or any agent 

or independent administrator acting on its behalf, in order to process her claim. Further, exhibit 5 

was not prepared for purposes of litigation, as the Leamans contend, but rather was information 

Golden Rule obtained in the ordinary course of its claims administration process. Thus, the trial 

court properly overruled the Leamans’ objection to exhibit 5 based on lack of authentication.

The Leamans next argue that even if exhibit 5 was properly authenticated, it was hearsay 

and Golden Rule failed to establish the requisite foundation for its admission as a business record.

Under § 27-803(6), business records are an exception to the general exclusion of hearsay 

evidence. Subsection (6)(b), relevant here, allows the admission of records received or acquired in 

the regular course of business by an entity from another entity. Specifically, it provides that the 

following are not excluded by the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, or 

conditions, other than opinions or diagnoses, that was received or acquired in the regular 

course of business by an entity from another entity and has been incorporated into and kept 

in the regular course of business of the receiving or acquiring entity; that the receiving or 

acquiring entity typically relies upon the accuracy of the contents of the memorandum, 

report, record, or data compilation; and that the circumstances otherwise indicate the 
- 7 -

trustworthiness of the memorandum, report, record, or data compilation, as shown by the 

testimony of the custodian or other qualified witness.

(Emphasis supplied.)

The party seeking to admit a business record under the business records exception to the 

hearsay rule bears the burden of establishing foundation under a three-part test. First, the proponent 

must establish that the activity recorded is of a type that regularly occurs in the course of the 

business’ day-to-day activities. Second, the proponent must establish that the record was made as

part of a regular business practice at or near the time of the event recorded. Third, the proponent 

must authenticate the record by a custodian or other qualified witness. State v. Walker, 29 Neb. 

App. 292, 953 N.W.2d 65 (2020).

The court found that the medical records in exhibit 5 were: (1) received by Golden Rule in 

the regular course of its business; (2) were Ralisa’s medical records from Family Practice of Grand 

Island that were kept in the normal course of its business; (3) that these medical records obtained 

by Golden Rule were incorporated into Golden Rule’s business records in the ordinary course of 

its business; (4) that these were the types of records typically relied upon by Golden Rule for its 

accuracy regarding determination of claims; and (5) the records were factual in nature. It then 

determined that the records in exhibit 5 were admissible pursuant to the business records exception 

to the hearsay rule.

We agree that Moeller’s affidavit satisfies the necessary foundation for admitting exhibit 

5 as a business record acquired from another entity. Moeller stated that she is a Legal Services 

Specialist for United HealthCare Services and handles matters for Golden Rule, including 

reviewing records related to the Leamans’ claim for insurance coverage. She stated that as part of 

Golden Rule’s claims administration process, with the insured’s authorization it “obtains records 

from health care providers or facilities having information as to the care, advice, treatment, 

diagnosis, or prognosis of any physical or mental condition of the insured.” Moeller further 

identified exhibit 5 as “medical records from Family Practice of Grand Island PC regarding a visit 

on August 30, 2018,” a copy of which is “kept and maintained by Golden Rule in the ordinary 

course of business.” Moeller’s affidavit established that Golden Rule relies on records from 

healthcare providers or facilities in its claims administration process. It obtains medical records 

with the insured’s authorization and keeps those records in the regular course of its business and 

Ralisa’s records from Family Practice of Grand Island were the type of records typically relied 

upon by Golden Rule in considering claims for insurance coverage. The admissibility of the 

medical records from Family Practice of Grand Island, specifically the visit on August 30, 2018, 

is further bolstered by the Leamans’ own admission that Ralisa had an office visit with Settje on 

August 30, 2018, and discussed the lump in her left breast.

The Leamans also argue that exhibit 5 is inadmissible under the business records exception 

because it contains opinions and diagnosis. See § 27-803(6)(b). However, Golden Rule relies 

primarily on Settje’s notes from Ralisa’s visit on August 30, 2018, in which she recounts her and 

Ralisa’s discussion about the lump in Ralisa’s breast and the offer of a surgical referral to have the 

lump biopsied. Golden Rule does not rely on any medical opinions or diagnosis in exhibit 5 to 

support its position that coverage did not exist under the policy because of a preexisting condition 

exclusion. Accordingly, this argument fails.
- 8 -

We conclude that exhibit 5 was admissible under the business records exception and, 

therefore, the trial court did not err in overruling the Leamans’ hearsay objection.

Waiver of Preexisting Condition Argument.

The Leamans also argue that the trial court erred in failing to find they were entitled to a 

determination that coverage applied as a matter of law because Golden Rule had waived its 

argument that there was no insurance coverage due to a preexisting condition by retaining the 

Leamans’ insurance premiums.

The Leamans rely on Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 

(1982), in support of their position. In that case, following an automobile accident, the insurer sent 

the insured notice of cancellation of an automobile insurance policy based on a misrepresentation 

made by the insured at the time the policy was issued. The insurer returned the portion of the 

premium collected for the period after the date of cancellation. The trial court entered judgment in 

favor of the insurer, finding that the insured had fraudulently failed to disclose certain information 

to its insurer at the time the insurance policy was issued and therefore, the policy of insurance 

provided no coverage to the driver of the principal insured’s car involved in the accident.

On appeal the Nebraska Supreme Court reversed the trial court, holding that the insurer 

was precluded from asserting that the insurance policy was void from the beginning where, instead 

of cancelling the policy from its inception and returning to insured the entire premium, it declared 

the policy cancelled nearly a month after the accident, kept the premium earned to date of 

cancellation, and returned only that portion of premium equal to amount collected for period after 

date of cancellation. The Supreme Court stated:

When learning of the alleged fraud, [insurer] had two choices. Either it could determine 

that, because of the alleged fraudulent statements made to it, it wished to cancel the policy 

from its inception and return to [insured] the entire premium, on the theory that the policy 

never came into existence, or it could waive the alleged fraud, keep the premium earned to 

date of cancellation, and accept responsibility under the policy. If [insurer] elected to 

rescind the policy from its inception, it must place [insured] back in the same position 

[insured] was in before the policy was issued, including returning to her all of the premium. 

But [insurer] chose not to do so. Both by its notice of cancellation and by its retention of a 

portion of the premium, [insurer] elected to recognize the existence of the policy from the 

date of its issuance on March 5, 1980, until the date of its declared cancellation on April 

22, 1980. Having made that choice, [insurer] acknowledged that the policy was in effect 

on the date of the accident, March 27, 1980, and it therefore became liable under the policy. 

[Insurer] could not, on the one hand, recognize the existence of the policy and retain a 

portion of the premium and, on the other hand, deny the coverage afforded by the policy 

because of alleged fraudulent misrepresentations.

Dairyland Ins. Co. v. Kammerer, 213 Neb. at 110-11, 327 N.W.2d at 620.

The Leamans argue that based on Dairyland Ins. Co., Golden Rule cannot deny 

responsibility under the policy. The Leamans point out that Golden Rule denied coverage for 

Ralisa’s claims in May 2019 and since that date, it has not refunded any portion of the premiums 

the Leamans had paid. They contend, therefore, that Golden Rule has waived its argument that 
- 9 -

coverage is barred by the preexisting condition provisions and is bound to provide coverage for 

the Leamans’ claims.

Golden Rule argues that unlike the facts in Dairyland Ins. Co., it did not affirmatively void 

or rescind the policy, nor has it taken the position that the policy was void from inception. Rather, 

Golden Rule claims that in accordance with the terms of the policy, it has maintained that the 

policy was “voidable and subject to rescission,” and preserved the option to rescind the policy due 

to misstatements by the Leamans in their application, but it opted not to rescind or void the policy. 

Therefore, it was not required to return the premiums. Likewise, Golden Rule argues that by 

retaining the premiums, it did not accept responsibility under the policy and waive its preexisting 

condition argument.

We agree with Golden Rule that it did not void or rescind the policy and was not required 

to return any premiums. Golden Rule did not notify the Leamans that the policy was cancelled and 

has not argued or presented evidence that the policy was void. Rather, Golden Rule has denied the 

Leamans’ specific claim for breast cancer related treatment on the ground that the claim is 

excluded as a preexisting condition under the terms of the policy. The policy itself remained in 

effect and other claims could have been made against the policy. Accordingly, Golden Rule did 

not waive its preexisting condition argument by failing to return the premiums paid by the 

Leamans, and therefore, the Leamans were not entitled to a determination that coverage applied as 

a matter of law. This assignment of error fails.

Summary Judgment.

The Leamans next assign that the trial court erred in granting summary judgment in favor 

of Golden Rule and denying their motion for partial summary judgment. Summary judgment is 

proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record 

disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that 

may be drawn from those facts, and that the moving party is entitled to judgment as a matter of 

law. North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195 (2022). At the summary 

judgment stage, the trial court determines whether the parties are disputing a material issue of fact. 

It does not resolve the factual issues. Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 

186 (2019). Where reasonable minds could draw different conclusions from the facts presented, 

there is a triable issue of material fact. Id. Summary judgment is an extreme remedy and should 

not be used to deprive a litigant of a formal trial if there is a genuine issue of material fact. Wynne 

v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018).

The Leamans argue that even with the admission of exhibit 5 into evidence, Golden Rule 

is not entitled to summary judgment because there are genuine issues of material fact as to whether 

the preexisting condition exclusion applies here. We agree.

The policy defines a “preexisting condition,” in part as “a condition: A. For which medical 

advice, diagnosis, care or treatment was recommended or received within the 24 months 

immediately preceding the date the covered person became insured under the policy.” In the 

Leamans’ responses to requests for admission, they admitted that Ralisa discussed the lump in her 

left breast with Settje on August 30, 2018, which was within the 24 months preceding the policy 

becoming effective.
- 10 -

Settje’s notes from Ralisa’s visit on August 30, 2018, state: “[Ralisa] [h]as also had a small 

palpable lump, left inframammary area, present for years, has been imaged in the past, she wonders 

about having this excised. She does not feel it has changed.” The notes further state that Ralisa 

was “wondering about having [the lump] excised, discussed with her that we could refer to a 

surgeon to have this evaluated, she will consider this and let us know [if] she would like to follow 

up with us.”

Based on Settje’s notes, Ralisa is the one who inquired about the possibility of having the 

lump removed. Settje told her if she wanted to have the lump evaluated, she would refer her to a 

surgeon if she decided to have it removed. It seems clear that Ralisa did not receive a medical 

diagnosis or medical care from Settje on August 30, 2018. However, it is uncertain whether the 

conversation Ralisa had with Settje could be considered medical “advice” or a recommendation 

for medical “treatment” within the policy definition of a preexisting condition. We conclude 

Golden Rule failed to demonstrate that, as a matter of law, Settje provided medical advice or 

recommended treatment during the August 30 office visit. Rather, a genuine issue of material fact 

exists with respect to whether Settje’s discussion with Ralisa about the lump in her breast was 

medical advice or recommended medical treatment. The issue is a question of fact that should be 

decided by a jury at trial, not by the court on a motion for summary judgment.

Further, even if Settje’s conversation about the lump was medical advice or recommended 

treatment, there is also a question of fact as to whether the advice or recommended treatment was 

for breast cancer or for the lump in her breast.

Both state and federal courts have construed preexisting condition exclusions in insurance 

contracts differently. It does not appear that Nebraska has specifically addressed the issue. Several 

courts in other jurisdictions have held that where a policy defines a “preexisting condition” as a 

condition “for which” treatment or care was given before the effective date, the policy is 

ambiguous with respect to whether a “preexisting condition” includes a condition treated, but not 

yet diagnosed, before the effective date. See, LoCoco v. Medical Sav. Ins. Co., 530 F.3d 442, 447 

(6th Cir. 2008), citing Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d 159, 162-67 (3d Cir. 

2002); Pitcher v. Principal Mut. Life Ins. Co., 93 F.3d 407, 411-17 (7th Cir. 1996); Hughes v. 

Boston Mut. Life Ins. Co., 26 F.3d 264, 269-70 (1st Cir. 1994); Ross v. Western Fidelity Ins. Co., 

881 F.2d 142, 144 (5th Cir. 1989). This is because the word “for” can be read as connoting intent 

or purpose regarding the condition, such that treatment cannot be given “for” a specific condition 

unless the nature of the condition is known. LoCoco v. Medical Sav. Ins. Co., 530 F.3d at 447.

In dealing with clauses referring to conditions “for which” treatment was provided, these 

same courts have concluded that the ultimate condition must have been suspected with a 

reasonable degree of likelihood in order to be considered “preexisting.” In other words, treatment 

for a condition requires some awareness on the part of the physician or insured that treatment was 

being given for the condition itself. See Hughes v. Boston Mut. Life Ins. Co., supra.

In Lawson ex rel. Lawson v. Fortis Ins. Co., supra, the issue was whether receiving 

treatment for the symptoms of an unsuspected or misdiagnosed condition prior to the effective date 

of coverage made the condition a preexisting one under the terms of the insurance policy. In other 

words, the court was asked to determine whether it was possible to receive treatment “for” a 

condition without knowing what the condition was. Two days prior to the effective date of the 

policy, the insured went to the emergency room for treatment of what was initially diagnosed as a 
- 11 -

respiratory tract infection, but which was discovered to be leukemia one week later, after the 

effective date of the policy. The insurer denied coverage of medical expenses related to the 

leukemia on the ground that it was a preexisting condition for which she had received treatment 

prior to the effective date of the policy. The Third Circuit affirmed the trial court’s granting of 

summary judgment in favor of the insured. The court concluded the insured received treatment 

“for” what were initially diagnosed as symptoms of a respiratory tract infection; therefore, the 

treatment she received prior to the effective date of the policy was not “for” leukemia. It further 

held that for the purposes of what constitutes a preexisting condition, a suspected condition without 

a confirmatory diagnosis is different from a misdiagnosis or an unsuspected condition manifesting 

non-specific symptoms:

When a patient seeks advice for a sickness with a specific concern in mind (e.g., a thyroid 

lump, or a breast lump) or when a physician recommends treatment with a specific concern 

in mind (e.g., a “likely” case of multiple sclerosis), it can be argued that an intent to seek 

or provide treatment or advice “for” a particular disease has been manifested. . . . Here, 

there is no evidence that the possibility that Elena’s condition was actually leukemia ever 

entered the minds of Elena’s parents or Dr. Parikh. Therefore, it would not make sense to 

say that Dr. Parikh offered medical advice or treatment for Elena’s leukemia.

Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d at 166 (citations omitted).

Similarly, in Pitcher v. Principal Mut. Life Ins. Co., 93 F.3d 407 (7th Cir. 1996), the court 

held that the insured’s routine physical examination and mammogram prior to effective date of the 

policy did not constitute treatment or service for breast cancer. Prior to the policy’s effective date, 

the insured was being monitored for a longstanding fibrocystic breast condition. It was not until 

after the coverage began that she had a biopsy, which revealed breast cancer. The Seventh Circuit 

found that treatment for her breast cancer did not commence until after the biopsy procedure had 

conclusively identified a cancerous growth in her left breast; until that time, all concerned assumed 

that they were dealing with the longstanding fibrocystic breast condition, manifesting itself in the 

form of cysts, masses, and formations of fibrous tissue in both breasts. When lumps were detected 

at the time of her examination, both claimant and her doctor were of the belief that the lumps were 

the result of her fibrocystic breast condition and not cancer. Accordingly, the insured’s breast 

cancer was not a preexisting condition excluded from coverage under the policy. See, also, Ross 

v. Western Fidelity Ins. Co., 881 F.2d 142 (5th Cir. 1989) (there is at least reasonable argument 

that, under preexisting condition exclusion, treatment for specific condition cannot be received 

unless specific condition is known); Van Volkenburg v. Continental Cas. Ins. Co., 971 F. Supp. 

117, 122 (W.D.N.Y. 1997) (finding reasonable plaintiff’s argument that to obtain advice or 

treatment regarding medical “condition,” one must first have some awareness that “condition”

exists). See, also, Ermenc v. American Family Mut. Ins. Co., 221 Wis. 2d 478, 585 N.W.2d 679 

(Wis. App. 1998) (holding that where claimant’s cancer was not evident as condition before 

coverage period began and where symptoms before diagnosis were non-specific, coverage should 

not be excluded under preexisting condition clause). All these courts have reasoned that it is not 

logical to permit non-specific symptoms, which could be caused by a number of different 

sicknesses, to be used later as a retroactive trigger for exclusion as a preexisting condition. See 

Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d 159, 162-67 (3d Cir. 2002).
- 12 -

Other courts have interpreted preexisting condition provisions to not require a diagnosis of 

the condition. These courts have held that it is possible to receive treatment “for” a condition 

without knowing what the condition is. The reasoning underlying these decisions is that the 

preexisting condition language is clear and unambiguous that treatment for a condition does not 

require accurate diagnosis of the condition. See Lawson ex rel. Lawson v. Fortis Ins. Co., supra.

For example, in Bullwinkel v. New England Mut. Life Ins. Co., 18 F.3d 429 (7th Cir. 1994), the 

court held that discovery of a breast lump before the defendant’s insurance coverage began 

triggered the preexisting condition exclusion although the lump was not definitively diagnosed as 

cancer until after coverage began. Before the claimant’s insurance coverage began, she visited her 

doctor because she had detected a lump in her breast. After performing an ultrasound, her doctor 

became concerned about the possibility of cancer and ordered removal and biopsy of the lump, 

which occurred after the effective date of the policy, telling her “Let’s be safe and take it out.” The 

biopsy revealed the presence of cancer.

The parties agreed that the breast lump was a condition which was diagnosed and treated 

before the effective date of the policy. Both sides therefore, essentially conceded that the 

post-policy treatment of the lump was not covered under the policy. The issue then was whether 

the cancer treatments which took place after the lump was removed were covered. The Seventh 

Circuit reasoned that

even though [the claimant] did not know the lump was cancerous in July [before the 

effective date of her insurance policy], her visit with the doctor in that month concerning 

the lump actually concerned cancer. It follows that [the claimant] was “seen” and “treated”

and incurred medical expenses for her cancer in July.

Id. at 432. Therefore, the court concluded that any post-policy treatment concerning the cancer 

was not covered.

Similarly, in Kirk v. Provident Life & Acc. Ins. Co., 942 F.2d 504 (8th Cir. 1991), the 

claimant was treated for a number of symptoms, including pain in his right side, night sweats, an 

ache in his leg, a lesion on his knee, and swelling, which led his doctor to suspect congenital heart 

disease. But a blood culture which might have detected such a disease proved negative. 

Subsequently, the claimant obtained an insurance policy which contained a preexisting condition 

exclusion. The claimant began once again to display symptoms of congenital heart disease. This 

time, a heart specialist diagnosed the disease as bacterial endocarditis, a heart illness. The heart 

specialist, as well as a specialist in infectious diseases, both concluded that the disease had been 

present before insurance coverage commenced.

The Eighth Circuit determined that the claimant’s insurance did not cover the heart 

condition because it predated the policy. The court was unpersuaded by the fact that the condition 

was not accurately diagnosed until after the policy became effective. See also Marshall v. UNUM 

Life Ins. Co., 13 F.3d 282 (8th Cir. 1994) (court found preexisting condition where claimant was 

treated for muscle pain prior to effective date of insurance, which was later diagnosed as chronic 

fatigue syndrome).

All of the cases discussed above involve insurance policies with substantially similar 

preexisting condition language to that in the Golden Rule policy at issue in this case.
- 13 -

An insurance policy is a contract and is to be construed as any other contract to give effect 

to the parties’ intentions at the time the contract was made. North Star Mut. Ins. Co. v. Miller, 311 

Neb. 941, 977 N.W.2d 195 (2022).

Whether a policy is ambiguous is a matter of law for the court to determine. Id. An 

insurance policy is ambiguous when a word, phrase, or provision in the contract has, or is 

susceptible of, at least two reasonable but conflicting interpretations or meanings. Id. However, 

we will not read an ambiguity into policy language which is plain and unambiguous in order to 

construe it against the insurer. Id.

In the instant case we find the “preexisting condition” clause in the policy to be ambiguous. 

There is a question as to whether the preexisting condition clause requires knowledge or reasonable 

suspicion of the underlying disease. If it does not, and if Ralisa received medical advice or 

recommended treatment, then there is no coverage. But if the clause is interpreted to require 

knowledge or reasonable suspicion of the underlying disease, and if Ralisa received medical advice 

or recommended treatment for the lump itself, then coverage exists. However, the interpretation 

of an ambiguous contract presents an issue of fact not appropriate for determination on summary 

judgment. Bierman v. Benjamin, 305 Neb. 860, 943 N.W.2d 269 (2020). When the terms of a 

contract are in dispute and the real intentions of the parties cannot be determined from the words 

used, the jury, and not the court, should determine the issue from all the facts and circumstances. 

Crozier v. Brownell-Talbot School, 25 Neb. App. 1, 901 N.W.2d 341 (2017).

The Leamans admit that they were first aware of the breast lump in October 2014 and that 

is when Settje was first made aware of the lump, but claim they had no knowledge that the lump 

was cancerous or had any reason to be concerned that it might be cancerous before the policy went 

into effect. Ralisa had been monitoring the lump for years with routine mammograms. She also 

had an ultrasound at some point prior to the policy taking effect. The most recent pre-policy 

mammogram took place in April 2018 and did not detect any cancer. Based on her past medical 

tests, a finder of fact could determine that there was no reason to suspect that the lump was 

anything to be concerned about. When she saw Settje on August 30, 2018, it was for a reason 

unrelated to the lump on her breast. At that visit, she talked with Settje about the lump, telling her 

it had not changed in years, but was thinking about having it removed anyway.

Following the April 2018 mammogram, Ralisa was also told that her breasts were 

extremely dense, which diminishes the sensitivity of mammography and that a negative report 

should not delay a biopsy if a suspicious mass is present as some cancers are not identified by 

x ray. Accordingly, a finder of fact could determine that Ralisa had reason to be concerned the 

lump could be cancerous despite the negative mammogram results.

Because there are genuine issues of material fact regarding the applicability of the 

preexisting condition clause to Ralissa’s claim, summary judgment was improvidently granted in 

this case.
- 14 -

CONCLUSION

Based on the reasons set forth above, we conclude that the trial court erred in granting 

summary judgment in favor of Golden Rule. We therefore reverse the order of the trial court and 

remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR 

FURTHER PROCEEDINGS.