NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0510n.06

No. 12-6276

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SARAROGERS CRUTCHFIELD,Administratrix

of the Estate of Jeanne F. Crutchfield,

Plaintiff-Appellant,

v.

TRANSAMERICA OCCIDENTAL LIFE

INSURANCE CO., nka Transamerica Life

Insurance Company,

Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

C O U R T F O R T H E

WESTERN DISTRICT OF

KENTUCKY

O P I N I O N

BEFORE: COLE and McKEAGUE, Circuit Judges; and ZOUHARY, District Judge.*

McKEAGUE, Circuit Judge. Sara Rogers Crutchfield, as administratrix of the estate of

JeanneCrutchfield, appeals the district court’s grant of summary judgment in favor of Transamerica

Occidental Life Insurance Company (“Transamerica”). For the reasons that follow, we affirm the

judgment of the district court.

I.

In 1992, JeanneCrutchfield (“Crutchfield”) purchased a long-term care insurance policyfrom

defendant TransamericaOccidental Life InsuranceCompany(“Transamerica”). The policyprovides 1

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, *

sitting by designation.

Transamerica Life Insurance Company is the successor to Transamerica Occidental Life

1

Insurance Company.
No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

coverage for Nursing Home Care, Adult DayCare, and Home Health Care, as defined in the policy. 

Only Nursing Home coverage is at issue in this appeal. The policy defines “Nursing Home” in this 2

way:

A facility, or that part of one, which: (1) is operating under a license issued by the

appropriate licensing agency; (2) is engaged in providing, in addition to room and

board accommodations, nursing care and related services on a continuing inpatient

basis to 6 or more individuals; (3) provides, on a formal prearranged basis, a Nurse

who is on duty or on call at all times; (4) has a planned program of policies and

procedures developed with the advice of, and periodically reviewed by, at least one

Physician; and (5) maintains a clinical record of each patient. It may be a distinct

part of a hospital or other institution.

It is NOT a place that is primarily used for rest; for the care and treatment of mental

diseases or disorders, drug addiction, or alcoholism; for day care or for educational

care; or a retirement home or community living center.

R. 1-2, Page ID #11. The policy conditions the receipt of Nursing Home Benefits by stating in part:

To receive Nursing Home Benefits:

* * * *

(3) The care or services must be provided in a Nursing Home.

Prior approval of Nursing Home care is not required. However, care received at a

nursing facilitywhich is not in full compliance with the definition of a Nursing Home

will still meet the requirements of this Policy, but only if Our Personal Care Advisor

pre-certifies that the facility substantially complies.

Though the district court’s summary judgment decision resolved Crutchfield’s Adult Day 2

Care and Home Health Care claims in Transamerica’s favor, she has not appealed those

determinations.

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

R. 1-2, Page ID #12-13. Accordingly, there are two paths for an insured to receive Nursing Home

Benefits. Either the facility must strictly meet the definition of “Nursing Home,” or Transamerica

must pre-certify that the facility substantially complies with the definition of “Nursing Home.”

In 2009, Crutchfield was diagnosed with Alzheimer’s disease, and in April 2009, she became

a full-time patient at a facility called Barton House. Barton House specializes in treating

Alzheimer’s patients and provides an on-duty nurse during the day and on-call nurses at night. 

Crutchfield concedes, it does not provide round-the-clock nursing services. Appellant Br. at 5. 

After moving to Barton House, Crutchfield made a benefits claim to Transamerica in order

to recover Nursing Home Benefits under the policy. Transamerica investigated whether Barton 3

House met the policy definition of “Nursing Home,” and on June 18, 2009, Transamerica sent

Crutchfield a claims determination letter specifically denying the claim on the basis that Barton

House did not satisfy the policy’s definition of a Nursing Home. R. 42-2, Claim Letter, Page ID

#351-53. Crutchfield allegesthat she appealed the adverse determination through the policy’s appeal

process, and that her appeal was also denied.4

Neither party submitted Crutchfield’s initial notice of her claim or her claim form as part 3

of the record. See Policy, R. 1-2, Page ID #19 (“NOTICE OF CLAIM: You must tell us in writing

when You have a claim for benefits . . . . The notice should include at least: Your name, Your Policy

Number, and the address to which the claim form should be sent . . . .”) (“CLAIM FORMS: When

We get notice of Your claim We will send out a claim form to be used to file proof of loss . . . .

Answer all questions and send all required information to the address on the form . . . .”).

Neither partymade Crutchfield’s written appeal or Transamerica’s denial of that appeal part 4

of the record. See Policy, R.1-2, Page ID #21 (“APPEAL PROCESS: . . . If you do not agree with

a claim decision, You may then ask for a review. Your request must be in writing to Us and include

any information you think will help Your claim. No special form is needed . . . . Within 30 days

after receiving Your request, We will send You or Your representative Our decision. Our decision

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

In December 2010, Crutchfield filed this diversity action against Transamerica. Her initial

Complaint alleged that she had a reasonable expectation that her treatment in an Alzheimer’s facility

would be covered under the policy, and thus Transamerica was in breach of contract when it denied

her claim for Nursing Home Benefits. In October 2011 and March 2012, Crutchfield amended her

Complaint. Her Amended Complaints reaffirmed her belief that her care at Barton House should

be covered as Nursing Home Benefits, and alleged that she was entitled to recover under the Adult

Day Care or Home Health Care provisions of the policy. She further alleged that in denying her

benefits, Transamerica breached its duties of good faith and fair dealing, and violated the Kentucky

Unfair Claims Settlement Practices Act, the Kentucky Consumer Protection Act, and the Kentucky

Insurance Code. Crutchfield never specifically alleged in any of her three complaints that Barton

House “substantially complied” with the policy definition of “Nursing Home.” Nor did she allege

that she sought pre-certification and was wrongfullydenied benefits under the substantial compliance

provision of the policy.

Transamerica filed a motion to dismiss under FED.R.CIV.P. 12(b)(6). R. 30, Page ID #154. 

Crutchfield opposed the motion, but again did not argue the substantial compliance issue. R. 34,

Page ID #174. The district court denied the motion to dismiss, concluding that Crutchfield’s Second

Amended Complaint “satisfie[d] her pleading requirements . . . .” R. 40, Page ID #238. 

Transamerica then filed a motion for summary judgment as to all of Crutchfield’s claims. 

R. 42, Page ID #243. Crutchfield responded to Transamerica’s motion and requested partial

will be in writing with Our reasons stated clearly . . . .”).

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

summary judgment on her claim for NursingHome Benefits under the policy. R. 52-1, Page ID #537

n.2. Crutchfield’s response argued for the first time that Barton House substantially complied with

the definition of “Nursing Home.” Alternatively, she argued that the substantial compliance

language in the policy is ambiguous and thus must be construed in her favor. R. 52-1, Page ID #537,

542, 545. In response to this new argument, Transamerica recognized that the substantial

compliance argument had not been pled, “nor was coverage on this basis ever requested of

Transamerica.” R. 55, Page ID #737-38. Crutchfield countered that she requested such coverage

“through the appeals process,” but she also argued that any request for pre-certification “would have

been futile.” R. 58, Page ID #777. 

The district court denied Crutchfield’s request for partial summary judgment and granted

summary judgment to Transamerica on all of Crutchfield’s claims. Crutchfield ex rel. Crutchfield

v. Transamerica Occidental Life Ins. Co., No. 3:10-cv-777-H, 2012 WL 4212354, at *5 (W.D. Ky.

Sept. 19, 2012). As relevant to this appeal, the district court concluded that “the Policy

unambiguously states that coverage is provided under the substantial compliance provision only if

pre-certification is sought. Plaintiff does not dispute that she failed to seek pre-certification. This

makes her ineligible under the Policy’s unambiguous terms.” Id. at *2. The court further concluded

that because the policy language was unambiguous, “[t]he reasonable expectation doctrine is thus

inapplicable.” Id. at *4. Crutchfield timely appealed the district court’s decision granting summary

judgment to Transamerica. R. 62, Page ID #804.5

Sara Rogers Crutchfield was substituted as a party after Jeanne Crutchfield died on 5

December 19, 2012, after her notice of appeal was filed. Crutchfield v. Transamerica Occidental

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

II.

We review a district court’s grant of summary judgment de novo. Smith v. Wal-Mart Stores,

Inc., 167 F.3d 286, 289 (6th Cir. 1999). Summary judgment is proper “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). “[T]he party seeking to avoid summary judgment must point to

evidence in the record demonstrating a genuine dispute of material fact.” Newell Rubbermaid, Inc.

v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). This means the opposing partymust “do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). We review the district court’s factual

findings for clear error. United States ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345, 350 (6th

Cir. 2012). The parties agree that Kentucky law applies in this diversity case.

The interpretation of an insurance policy is a question of law appropriate for determination

at the summary judgment stage. Stone v. Ky. Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 810-11

(Ky. Ct. App. 2000). We give the terms of an insurance policy their plain and ordinarymeaning, and

when the terms of the policy are clear and unambiguous, we must enforce them as drafted. City of

Louisville v. McDonald, 819 S.W.2d 319, 320-21 (Ky. Ct. App. 1991); Osborne v. Uniguard Indem.

Co., 719 S.W.2d 737, 740 (Ky. Ct. App. 1986). Under Kentucky’s reasonable expectations doctrine,

when the terms of an insurance contract are ambiguous, we will interpret those terms “in favor of

Life Ins. Co., No. 12-6276 (Mar. 14, 2013 Order on Mot. for Substitution).

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

the insured’s reasonable expectations and construe[] [them] as an average person would construe

them.” Hugenberg v. W. Am. Ins. Co., 249 S.W.3d 174, 185-86 (Ky. Ct. App. 2006).

III.

On appeal, Crutchfield concedes that Barton House does not meet the policy’s definition of

“Nursing Home,” and thus she cannot utilize the first path for seeking Nursing Home Benefits. 

Instead, through several different arguments, she asserts that she should receive Nursing Home

Benefits because Barton House substantiallycomplies with the definition of “Nursing Home.” First,

she argues that the phrases “substantially complies” and “nursing facilities” in the policy are

ambiguous and thus should be construed in her favor under the reasonable expectations doctrine,

thereby allowing her to recover benefits. Second, she argues that Barton House should be covered

because it substantially complies with the definition of “Nursing Home.” Third, she argues that even

if she failed to seek pre-certification before she moved to Barton House, she should still be entitled

to benefits for the period of time after she met the pre-certification request requirement. The district

court found that Crutchfield had not met the pre-certification requirement, and that this failure

precluded her other arguments. We agreewith the district court that the pre-certification requirement

is determinative, and on this basis, also decline to address Crutchfield’s other arguments.

Crutchfield’s policyunambiguouslystates that while “prior approval” is not required for care

in a facility meeting the definition of “Nursing Home,” care “at a nursing facility” that does not meet

the definition of a Nursing Home may be covered by the policy, “but only if Our Personal Care

Advisor pre-certifies that the facility substantially complies.” R. 1-2, Page ID #12-13 (emphasis

added).

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

In seeking summary judgment, Transamerica argued that Crutchfield never requested

coverage on the basis that Barton House substantially complied. R. 55, Page ID #737-38.

Crutchfield responded by alleging that she requested such coverage “through the appeals process,”

but also stated that any pre-certification request “would have been futile.” R. 58, Page ID #777. On

appeal, she argues at various points in her briefing that she “ask[ed] Transamerica to approveBarton

House” as substantially complying, Appellant Br. at 13, that she “sought Transamerica’s approval

for her care at Barton House, and then appealed . . . ,” Appellant Br. at 30, that she sought precertification “through the appeals process,” Appellant Reply Br. at 15, and that Transamerica

“determined that Barton House did not substantially comply with the policy’s definition of ‘nursing

home.’” Appellant Reply Br. at 16.

But neither in her summary judgment briefing nor in her appellate briefing does Crutchfield

point to any evidence supporting the conclusion that she either (1) requested coverage on the basis

that Barton House substantially complied with the definition of “Nursing Home,” or that (2)

Transamerica denied coverage on the basis that Barton House did not substantiallycomply. The only

evidence she points to is deposition testimony generally describing Transamerica’s claims appeals

process, seeWeurdigDep., Page ID#903-11, and deposition testimonydescribing whyCrutchfield’s

initial request for Nursing Home Benefits was denied. See Weurdig Dep., Page ID # 921-23. None

of this testimonydiscusses whetherCrutchfield requested pre-certification, or whetherTransamerica

denied pre-certification on the basis that Barton House did not substantially comply with the

definition of “Nursing Home.” In other words, Crutchfield is challenging a determination that she

has not shown was ever even made.

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

In opposing Transamerica’s summary judgment motion, it was Crutchfield’s burden to

produce evidence demonstrating questions of fact as to whether she requested pre-certification or

whetherTransamerica denied such a request. Newell Rubbermaid, Inc., 676 F.3d at 533. Her burden

on this issue was magnified after Transamerica specifically asserted that Crutchfield never even

made a pre-certification request. While Crutchfield alleges that she sought pre-certification “through

the appeals process,” it is baffling that she never supported that assertion by producing her original

claim for benefits, her original claim form, the document appealing the denial of benefits, or

Transamerica’s letter denying the appeal. Simply put, the record is void of any evidence that a precertification request was made in any form, or that Transamerica denied a pre-certification request. 

The policy unambiguously states that a facility like Barton House may be approved, “but only if” it

is pre-certified. R. 1-2, Page ID #12-13 (emphasis added). Based on the absence of record evidence

showing that such a request was even made, it was not error for the district court to conclude that

Crutchfield failed to meet this primary policy requirement. 

Crutchfield’s breach of contract claim is based on the premise that Transamerica wrongfully

denied her benefits under the policy’s substantial compliance provision. But as discussed above,

Crutchfield has failed to show that Transamerica ever made that decision. Crutchfield’s arguments

on appeal (that benefits were wrongfully denied because the policy language is ambiguous and

should be construed in her favor, and that benefits were wrongfully denied because Barton House

substantially complies with the definition of “Nursing Home”) are based entirely on this same faulty

premise. Accordingly, we decline to address those arguments.

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No. 12-6276

Crutchfield v. Transamerica Occidental Life Insurance Co.

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in

favor of Transamerica.

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