Could Washington's insurance commissioner require undefined physician language in disability policies to include foot specialists?

Plain-English summary

In 1963, the Washington AG said an insurance commissioner could tell disability insurers that an undefined policy requirement for treatment by “physicians and surgeons” included licensed chiropodists treating human feet within their statutory practice. The commissioner could treat a form that failed to accommodate that reading as ambiguous and subject to withdrawal of approval.

The opinion rested on the commissioner's authority to disapprove ambiguous forms, the rule construing ambiguous insurance language in favor of the insured, and the then-current statute authorizing chiropodists to perform limited foot surgery. Its conclusion concerned the undefined policy terms and that limited treatment, rather than a general classification of chiropodists for every purpose.

Currency note

This opinion was issued in 1963. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG treat a licensed chiropodist as covered by undefined 'physicians and surgeons' wording?
A: Yes, for authorized medical and surgical treatment of the human foot in the disability policies the commissioner described.

Q: Could the commissioner act on an ambiguous policy form?
A: The AG cited the commissioner's power to disapprove a form or withdraw approval when it contained ambiguous or misleading clauses, and said the commissioner could notify insurers of the interpretation needed to avoid ambiguity.

Q: Did the opinion address a policy that expressly defined or excluded those providers?
A: No. The question and answer concerned terms left undefined in the policy.

Background and statutory framework

RCW 48.18.100 required approval of covered insurance forms, while RCW 48.18.110 permitted disapproval or withdrawal for ambiguous language. The AG compared those powers with RCW 18.22.010's description of licensed chiropody and concluded that the commissioner could require the stated interpretation of undefined disability-policy language.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/offices-and-officers-state-insurance-commissioner-disability-insurance-use-term

Original opinion text

Attorney General John J. O'Connell

OFFICES AND OFFICERS ‑- STATE ‑- INSURANCE COMMISSIONER ‑- DISABILITY INSURANCE ‑- USE OF THE TERM "PHYSICIAN" WITHOUT DEFINING SAME ‑- AMBIGUITY ‑- AUTHORITY TO RESOLVE.

The insurance commissioner has the authority to notify insurers that the term "physician" as used in a policy of disability insurance is ambiguous and must be considered to include chiropodists unless otherwise expressly excluded by definition.

January 18, 1963

Honorable Lee I. Kueckelhan
Insurance Commissioner
Insurance Building
Olympia, Washington

Cite as: AGO 63-64 No. 5

Dear Sir:

By letter previously acknowledged, you have requested an opinion from this office on a problem of interpretation which has arisen where the terms "physicians" and "surgeons" as used in a policy of disability insurance are not defined therein. Specifically you desire to know:

Would the insurance commissioner be acting in the scope of his statutory powers if he undertook administratively to notify insurers writing such disability insurance in the state of Washington that as to medical and surgical treatment of the human foot licensed chiropodists must be considered "physicians and surgeons" within this policy language where the terms are not defined in the policy itself?

We answer your question in the affirmative.

ANALYSIS

RCW 48.18.100 provides as follows in material part:

"(1) No insurance policy form other than surety bond forms, or application form where written application is required and is to be attached to the policy, or printed life or disability rider or endorsement form shall be issued, delivered, or used unless it has been filed with and approved by the commissioner.

[[Orig. Op. Page 2]]

This section shall not apply to policies, riders or endorsements of unique character designed for and used with relation to insurance upon a particular subject.

"(2) . . . The commissioner may withdraw any such approval at any time for cause . . .

"(3) The commissioner's order disapproving any such form or withdrawing a previous approval shall state the grounds therefor.

"(4) No such form shall knowingly be so issued or delivered as to which the commissioner's approval does not then exist."

RCW 48.18.110 provides as follows in material part:

"(1) The commissioner shall disapprove any such form of policy, application, rider, or endorsement, or withdraw any previous approval thereof, only . . .

"(c) if it contains or incorporates by reference any inconsistent, ambiguous or misleading clauses. . . ."

Obviously the foregoing statutes empower the commissioner to disapprove and to withdraw approval of policy forms which contain clauses that are ambiguous or misleading. Furthermore, it necessarily follows that these statutes impliedly empower the commissioner to notify insurers that certain words or phrases must be construed in a certain manner to avoid ambiguity.

In determining the meaning of language used in a contract of insurance (where the terms are not defined therein as contemplated by your question) we are bound by the following rule of construction enunciated by the Washington supreme court in the case ofAnderson Co. v. Lumbermen's Co., 53 Wn. (2d) 404, 407, 333 P. (2d) 938 (1959):

". . . The language of an insurance contract must be given its ordinary meaning unless a special or technical meaning is clearly indicated by the contract itself or by the surrounding circumstances; and where an ambiguity exists, the contract should be construed in favor of the insured. These principles are well established in this jurisdiction. Lesamiz v. Lawyers Title Ins. Corp., 51 Wn. (2d) 835, [[Orig. Op. Page 3]] 322 P. (2d) 351."

We find no statute in this state defining the terms "physician" and "surgeon" as used in a policy of disability insurance. Accordingly, we must give these terms their ordinary meaning.

Webster's New Twentieth Century Dictionary of the English Language, Unabridged, Second Edition, 1960, defines a "physician" as

"1. a person licensed to practice medicine; a doctor of medicine

"2. a general medical practitioner, as distinguished from a surgeon

"3. a person or thing that heals, relieves, or comforts."

Chapter 149, § 1, of the Laws of 1955 (cf. RCW 18.22.010), defines the practice of chiropody as follows:

"The practice of chiropody means the diagnosis and the medical, surgical, mechanical, manipulative, and electrical treatments of ailments of the human foot, except:

"(1) Amputation of the foot or toes; and

"(2) The administration of an anesthetic, other than local, or the administration and prescription of drugs including narcotics, other than required to perform the services authorized for the treatment of the feet; and

"(3) Treatment of systemic conditions or the results and complications thereof."

Since the above statute specifically authorizes a chiropodist to perform limited surgery upon a human foot a chiropodist must be considered a surgeon for a limited portion of the body, the human foot.

Whether or not the statutory definition of a chiropodist is within the aforementioned popular definition of the term "physician," however presents a more difficult question. Since there have been no decisions on this point by the Washington supreme court, we can arrive at such a conclusion only by using rules of construction applicable to an insurance contract. This in our opinion creates an ambiguity in the use of the term "physician" in a policy of disability insurance.

[[Orig. Op. Page 4]]

Therefore, the insurance commissioner can resolve the ambiguity of the term "physician" by notifying insurers that a chiropodist must be considered a "physician" as the term is used in a policy of disability insurance.

In view of the foregoing, we are of the opinion that licensed chiropodists can be considered "physicians and surgeons" as such terms are used in a policy of disability insurance such as that here being considered. It is also our opinion that the insurance commissioner has the authority under the laws of this state to notify insurers who write disability insurance in this state that such a policy of disability insurance requiring treatment by "physicians and surgeons" must include treatment by licensed chiropodists or the policy will be considered ambiguous and thereby subject to the commissioner withdrawing his approval of the policy.

We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BASIL L. BADLEY
Assistant Attorney General