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United States Court of Appeals,
Fifth Circuit.
No. 93-7102.
Mai E. GILLEY, Plaintiff-Appellee,
v.
PROTECTIVE LIFE INSURANCE COMPANY, Defendant-Appellant.
March 31, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before HENDERSON*, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The district court held that under MISS.CODE ANN. § 83-9-33
(1991), an insurance company that has provided single person health
insurance is obliged to pay for the medical expenses of the
insured's newborn child. Concluding that no such obligation
exists, we reverse and render judgment in favor of the company.
I.
Mai Gilley was an employee of the Yalobusha County School
District, which offered its employees a group insurance plan
underwritten by the Protective Life Insurance Company. In 1987,
Gilley purchased "single" coverage for herself under the plan.
Such a policy carried a monthly premium of $90.70. Gilley had the
opportunity to, but did not, enroll in coverage for her family.1
*Circuit Judge of the Eleventh Circuit, sitting by
designation.
1The enrollment form contained two boxes to be checked, one
of which was labeled "single," and one "family." Gilley checked
the box labeled "single." Gilley left blank a space for a list
1

Gilley had no children when she enrolled. Her husband had his own
insurance plan, under which he too had chosen single person
coverage.
Gilley's insurance policy provided in pertinent part:
WHEN INSURANCE FOR DEPENDENTS BEGINS
To insure your Dependents, you must fill out and sign our
enrollment card and give it to your Employer.
Such enrollment card must be submitted:
....
(d) within 31 days after the date you first acquire a
Dependent.
....
If such enrollment card is submitted as provided in ... "(d)"
above, insurance for each then eligible dependent will begin
on the later of (a) the first day of the calendar month which
occurs on or next follows the date we receive such enrollment
card or (b) the date your insurance begins, subject to being
deferred as shown under DEFERRAL OF INSURANCE FOR DEPENDENTS.
....
If a Dependent first becomes eligible while insurance for your
Dependents is in effect, that Dependent's insurance will begin
on the date he or she becomes eligible, subject to being
deferred as shown under DEFERRAL OF INSURANCE FOR DEPENDENTS.
....
DEFERRAL OF INSURANCE FOR DEPENDENTS
If a Dependent is confined at home or in any facility due to
injury, sickness, or any other physical condition or mental
disability on the date insurance for that Dependent otherwise
would begin, such insurance will not begin until the date that
Dependent is no longer confined.
However, Medical Care Insurance for your natural child born
of "all eligible dependents." It is undisputed that, under the
terms of her insurance policy, Gilley could have procured
coverage for her husband before November 1, 1988.
2

while Medical Care Insurance for your Dependents is in effect
will begin on that child's birthdate even if that child is
confined on that date.
The insurance policy provided that coverage would be denied for a
pre-existing condition, defined as:
Pre-Existing Condition--any injury or illness for which you (or
a Dependent) see a Qualified Practitioner and/or receive care,
services, or supplies within the 90 day period just before
becoming insured under the Policy.
. . . . .
For a Dependent, a condition is deemed not Pre-existing after
the earlier of the following dates:
(a) the date 90 days in a row have gone by (beginning
before, on, or after the date of becoming insured
and ending after that date) during which the
Dependent did not see a Qualified Practitioner or
receive care, services, or supplies in connection
with that Injury or Illness; or
(b) the date the Dependent has been insured for 365 days
in a row.
On March 12, 1989, Gilley gave birth prematurely to twin boys,
one of whom died at birth. The surviving son, Kainen, remained in
the hospital continuously from his birth until he was released on
July 12, 1989. During the four months Kainen was in the hospital,
the hospital bills attributable to his care amounted to
approximately $140,000.2
Approximately a week and a half after the birth, Gilley
completed an enrollment application adding both Kainen and her
husband to her policy. The premium for family coverage was $295.05
per month. When the insurance company received Gilley's enrollment
card, it requested that Gilley complete "Evidence of Insurability"
2Gilley's own medical expenses are not at issue.
3

forms on her husband and her son.
On April 17, 1989, Gilley submitted the forms. On her son's
form, Gilley entered the son's date of birth, and under the heading
"Duration of Treatment-Results or Remaining Effects," Gilley wrote
"Treatment in Progress." Under the form's heading "Name and
address of Physician and of Hospital or other Institution," Gilley
listed "Edwin G. Brown" and "Jackson University Medical Center."
The insurance company sent a letter requesting more detailed
information.3 But when Gilley called the insurance company to give
such information, she was told "never mind." On May 3, 1989, the
insurance company sent a letter to the school district stating that
3The letter read,
April 21, 1989
Yalobusha County Schools
P.O. Box 151
Water Valley, MS 38965
ATTENTION:
Ms. Ann Surrette
Re: Mai E. Gilley
Dear Ms. Surrette:
I received the enrollment card and Evidence of Insurability forms
on the above. Medical coverage was approved on her husband,
Clifton B. Gilley and will become effective May 1, 1989.
In reference to coverage on her son, I am going to need more
detailed information for the answer she listed on her form
(treatment in progress). We need to know what this situation is
and what kind of treatment is she referring to?
I am sending a copy of her form for her to give a more detailed
summary on his condition.
Thank you for your attention to this matter and if you should
have any questions, please let me know. Our toll free number is
... and my extension is ....

Sincerely,
/s/
Tina L. Lawrence
Account Representative
Group Customer Service
4

it would cover Gilley's son starting May 1, 1989.4
An internal document from the insurance company, a "Health
Services Case Review Form," indicates that the company opened a
file for Gilley's surviving son on March 13, 1989. On the first
page of the form, the attending physician is listed as "Edwin
Brown," and the facility is listed as "Univ." The
Diagnosis/Symptoms section contains the entry "prematurity 25 wks."
Under the heading Medical Admission--Treatment Plan, the word "NICU"
is written. Although the above entries are undated, the second
page of the form contains a number of entries dated March 14, 1989
to March 17, 1989. The March 14 entry contains the words "25 wk
gest. 725 gm. On vent. P__ax--chest tube."
Despite its May 3 letter, the insurance company now has
changed its position, arguing that it is not liable for any of
Kainen's medical expenses. The hospital turned the Gilleys' debt
4The letter read,
May 3, 1989
Yalobusha County Schools
P.O. Box 151
Water Valley, MS 38965
ATTENTION:
Ms. Ann Surrette
Re: Mai E. Gilley
Dear Ms. Surrette:
Please inform the above insured that medical coverage on her son
Kainen Bryan Gilley has been approved and will be effective May
1, 1989.
If you should have any questions, please let me know. Our toll
free number is ... and my extension is ....

Sincerely,
/s/
Tina L. Lawrence
Account Representative
Group Customer Service
5

for Kainen's medical expenses over to a collection agency, and the
Gilleys began paying the hospital at the rate of approximately $100
per month.
The company billed Gilley for single person coverage for March
and April 1989. Nonetheless, for those two months Gilley made
payments to the company at the family rate. On February 28, 1991,
the company reimbursed Gilley for the difference between the family
and single rates for the two months. There is no evidence in the
record about the payments or billings for subsequent months.
II.
Gilley sued the insurance company, alleging that she should
recover medical expenses and extracontractual and punitive damages.
Neither Gilley nor the insurance company requested a jury trial.
The insurance company moved for summary judgment on all of Gilley's
claims.
The district court granted the motion as it related to
punitive damages but denied the motion as it related to medical
expenses, relying upon MISS.CODE ANN. § 83-9-33 (1991).5 Nearly two
months later, the court entered a final judgment in favor of Gilley
as to her claim for medical expenses and dismissed her claim for
extracontractual and punitive damages.6 The insurance company now
appeals the denial of its motion for summary judgment as it related
5Although the district court order was silent regarding
Gilley's claim for extracontractual damages, the final judgment
dismissed her claim for extracontractual damages.
6The district court ordered that Gilley should recover
$141,273.99, plus prejudgment and postjudgment interest.
6

to medical expenses.
III.
The insurance policy, under its terms, does not require the
company to pay for Kainen's medical expenses. A review of the
relevant provisions shows that insurance coverage for Kainen did
not begin until the day he was released from the hospital.
In order to begin coverage for a dependent, the insured must
submit an enrollment card within thirty-one days after the date the
insured first acquires the dependent:
To insure your Dependents, you must fill out and sign our
enrollment card and give it to your employer.
Such enrollment card must be submitted:
....
(d) within 31 days after the date you first acquire a
Dependent.
Gilley did fill out an enrollment card requesting family coverage
within thirty-one days after Kainen's birth on March 12, 1989.
Approximately a week and a half afterward, Gilley completed an
enrollment application to add both Kainen and her husband to her
group policy. The insurance company did not receive the card until
April 1989.
Once an enrollment card has been submitted, the insurance
policy provides that coverage begins on the later of: (a) the
first day of the month after receipt of the enrollment card or (b)
the end of the deferral period applicable to dependents who are
confined for health treatment on the date coverage otherwise would
begin. The "(a)" date would be May 1, 1989, as the enrollment card
7

was received in April. The "(b)" date is determined by reference
to the policy's deferral provision, which says,
If a Dependent is confined at home or in any facility due to
injury, sickness, or any other physical condition or mental
disability on the date insurance for that Dependent otherwise
would begin, such insurance will not begin until the date that
Dependent is no longer confined.
Because Gilley's son was in the hospital on May 1, 1989, the
"(b)" date is July 12, 1989, the day the son was released from the
hospital. The later of the "(a)" and "(b)" dates is July 12.
Coverage therefore was deferred until July 12, and none of Kainen's
stay in the hospital was covered.
IV.
The district court erroneously held that MISS.CODE ANN. § 83-9-
33 required the insurance company to pay for the son's medical
expenses from the date of birth. Section 83-9-33(1) provides,
All individual and group health insurance policies providing
coverage on an expense incurred basis and individual and group
service or indemnity type contracts issued after January 1,
1980, by an insurer or nonprofit corporation which provides
coverage for a family member of an insured or subscribed
shall, as to such family members' coverage, also provide that
the health insurance benefits applicable for children shall be
payable with respect to a newly born child of the insured or
subscriber from the moment of birth.
MISS.CODE ANN. § 83-9-33(1) (1991) (emphasis added).7 Interpretation
of § 89-3-33 is a matter of law, and we therefore review the
district court's judgment de novo.
Gilley argues that § 83-9-33(1) applies to her, contending
7MISS.CODE ANN. § 83-9-33(2) defines coverage for newborn
children as "coverage of injury or sickness including the
necessary care and treatment of medically diagnosed congenital
defects, prematurities and birth abnormalities, but need not
include routine well baby care."
8

that her insurance policy "provides coverage for a family member of
the insured" because she is a family member of her own family. We
disagree. A "family member of the insured" means a family member
who is not the insured herself.
Although the question of whether § 83-9-33(1) applies to
single person coverage is one of first impression in Mississippi,
two courts have construed a similar statute in Missouri.8 The
Missouri statute reads,
All individual and group health insurance policies ... which
provide coverage for a family member of the insured or
subscriber shall, as to such family member's coverage, also
provide that the health insurance benefits applicable for
children shall be payable with respect to a newly born child
of the insured or subscriber from the moment of birth.
MO.REV.STAT. § 376.406(1) (1991). In Shaw v. Republic Nat'l Life
Ins. Co., 622 F.Supp. 93, 96 (E.D.Mo.1985), the court held that the
Missouri statute does not apply unless the insurance policy in
question already provides for family or dependent coverage. Six
years later, a court reached the opposite result in Kelly v. Pan-
Am. Life Ins. Co., 765 F.Supp. 1406, 1412 (W.D.Mo.1991). Although
the policy in Kelly did not provide for family coverage or
dependent coverage, the court reasoned that the insured, a mother,
was a "family member of her own family." Id. The Kelly court
distinguished Shaw on the unconvincing ground that the insured in
Shaw was a father, not a mother. Id.
Wisconsin had a statute similar to the Mississippi and
8The insurance company cites a North Carolina case, Norris
v. Home Security Life Ins. Co., 42 N.C.App. 719, 257 S.E.2d 647
(1979), but the North Carolina statute at issue in that case is
substantially different from MISS.CODE ANN. § 83-9-33.
9

Missouri statutes. WIS.STAT. § 632.895(5)(a) (1989-90), amended by
WIS.STAT. § 632.895(5)(a) (1991-92). That statute, which has been
subsequently amended, applied to a "policy which provides coverage
for a member of a member of the insured's family." Id.9
Wisconsin's insurance regulators interpreted a "policy which
provides coverage for a member of the insured's family" to mean a
policy that "provides coverage for another family member, in
addition to the insured person, such as the insured spouse or a
child." WIS.ADMIN.CODE § INS. 3.38 (Feb.1993) (emphasis added).
We read the phrase "a family member of the insured" in
MISS.CODE ANN. § 83-9-33 as referring to a family member of the
insured besides the insured herself.10 Because Gilley's insurance
does not cover any family member, she is not protected by § 83-9-
33.
If the Mississippi legislature had intended to enlarge the
coverage of a single person policy, it should have used a phrase
like "an insured or the insured's family members." Alternatively,
Mississippi could have adopted the Wisconsin statute, which now
9The full text of the statute is as follows:
No disability insurance policy which provides coverage
for a member of the insured's family may be issued
unless it provides that benefits applicable to children
shall be payable with respect to a newly born child of
the insured from the moment of birth.
10Gilley admitted as much in response to the insurance
company's interrogatories. The life insurance company had asked
Gilley to "list each and every individual family member of the
insured who was covered under the Group Insurance Plan issued to
Mai E. Gilley from Protective Life." Gilley's response: "No
family member was covered." If Gilley truly had believed her
argument, she should have listed herself.
10

reads,
Every disability insurance policy shall provide coverage for
a newly born child of the insured from the moment of birth.
WIS.STAT. § 632.895(5)(a) (1991-92) (emphasis added). Mississippi
did not choose either of these alternatives.
V.
The next issue is whether the insurance company waived its
right to deny coverage because (1) it wrote a letter assuring that
it would provide coverage to Gilley's son effective May 1, 1989, or
(2) it temporarily accepted additional premiums from Gilley for
coverage of her son. Because waiver cannot operate to extend the
subject matter of an insurance policy, we conclude that waiver is
not applicable.
A.
Before we consider the merits of Gilley's waiver argument, we
must examine the company's contention that Gilley has forfeited her
argument by failing to lodge it early enough in the case. Gilley
did not mention waiver in her original complaint but relied solely
upon her § 83-9-33 argument. Later, when the insurance company
propounded an interrogatory to Gilley asking her to set forth her
factual and legal basis for recovering insurance benefits, Gilley
responded merely that "Section 83-9-33 requires medical coverage
for children at birth. Such was not done."11 The first time Gilley
11The exact language of the interrogatory was as follows:
Please set forth your factual and legal basis for the
allegations in your Complaint that you are presently
entitled to recover any contractual benefits, in any
amount, from Protective Life.
11

asserted the waiver argument was in response to the motion for
summary judgment.12
We have found no authority--and the insurance company has
provided us with none--to the effect that an argument first raised
in response to a motion for summary judgment is waived on appeal.13
Gilley raised the waiver argument early enough for the trial court
to consider the matter when ruling on the insurance company's
motion for summary judgment. Since we are considering an appeal of
such motion, we conclude that the issue is properly before us on
appeal.
B.
We can now proceed to the merits of Gilley's waiver
Gilley's answer was dated January 15, 1991.
12Specifically, Gilley's response to the motion for summary
judgment contains the following text:
Upon acquiring Kainen as eligible dependent, Mrs.
Gilley did everything expected and required of her to
enroll the eligible dependent as required by the
statute and the policy itself. She truthfully and
promptly provided all information requested of her.
Additionally, she paid all premiums required of her
beginning with the March 1989 premium. As a
consequence, Protective has waived its right to assert
its defense of no dependent coverage. Coverage on
Kainen should have begun at the moment of birth. At
the very least coverage should have begun on May 1,
1989, when Protective specifically accepted Kainen.
(emphasis in original) (citations omitted).
13We have held that an argument is waived if the party fails
to make the argument in response to summary judgment. See
Haubold v. Intermedics, Inc., 11 F.3d 1333, 1336 (5th Cir.1994).
12

argument.14 The doctrine of waiver cannot extend an insurance
policy to cover additional subject matter:
This Court follows the general rule that waiver or estoppel
can have a field of operation only when the subject matter is
within the terms of the policy, and they cannot operate
radically to change the terms of the policy so as to cover
additional subject matter. Waiver or estoppel cannot operate
so as to bring within the coverage of the policy property, or
a loss, or a risk, which by the terms of the policy is
expressly excepted or otherwise excluded. An insurer may be
estopped by its conduct or knowledge from insisting on a
forfeiture of a policy, but the coverage or restrictions on
the coverage cannot be extended by the doctrines of waiver or
estoppel.
Employers Fire Ins. Co. v. Speed, 133 So.2d 627, 629 (Miss.1961)
(citations omitted).15 Extending insurance coverage to Gilley's son
would expand the policy to cover a "risk" or "loss" not
contemplated by the language of the policy. Therefore, the waiver
doctrine is not operable in this case.
The district court refused to consider the question of the
insurance company's waiver, stating that the "issues of waiver
require more factual development than which exists in the present
status of the record." The court explained,
14Gilley's argument is properly characterized as waiver, not
estoppel. "A waiver is an intentional relinquishment of a known
right; estoppel is a preclusion, by operation of law, of the
right to assert a defense or remedy." 16B JOHN A. APPLEMAN & JEAN
APPLEMAN, INSURANCE LAW AND PRACTICE at v (1981).
15See also 16B APPLEMAN & APPLEMAN, supra note 14, § 9090, at
579-82 ("It has been repeatedly held that the doctrines of waiver
and estoppel cannot be used to extend the coverage of an
insurance policy or create a primary liability, but may only
affect rights reserved therein. While an insurer may be
estopped, by its conduct or its knowledge or by statute, from
insisting on a forfeiture of a policy, under no conditions can
the coverage or restrictions on coverage be extended by waiver or
estoppel.") (footnotes omitted).
13

On the face of the record as it relates to any issue of
waiver, there appear to be several unanswered questions and
disputes of material facts. For one example, what was the
basis for Protective Life's belief that Kainen was no longer
hospitalized after May 1, 1989? Additionally, the actual or
apparent authority, if any, of Protective Life representatives
who made certain representations to the Gilleys has not been
addressed by either party.
Thus, the district court thought it inappropriate to dispose of the
waiver issue at the summary judgment level. We disagree, holding
that the doctrine of waiver is inapplicable as a matter of law.
The final judgment of the district court is REVERSED, and
judgment is RENDERED in favor of the Protective Life Insurance
Company.

14