50 F.

3d 793
63 USLW 2608, 18 Employee Benefits Cas. 2915

Scott WOLF, Brenda Wolf, husband and wife, PlaintiffsAppellants,

v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey
corporation; the Prudential Service Bureau, Inc., a foreign
corporation; the Prudential Life Insurance Company, a
foreign corporation, Defendants-Appellees,
and
Annuity Board of the Southern Baptist Convention, Inc., a
Texas Corporation, Defendant.
No. 94-5140.

United States Court of Appeals,

Tenth Circuit.
March 6, 1995.

John H. Tucker, Mary Quinn-Cooper, and Catherine C. Taylor of Rhodes,

Hieronymus, Jones, Tucker & Gable, Tulsa, OK, for plaintiffs-appellants.
Elsie Draper and Timothy A. Carney of Gable and Gotwals, Tulsa, OK,
for defendants-appellees.
Before MOORE, BARRETT, and EBEL, Circuit Judges.
EBEL, Circuit Judge.

Plaintiffs Scott and Brenda Wolf brought this action against defendant Annuity
Board of the Southern Baptist Convention, Inc. and defendant-appellee
Prudential1 asserting claims related to defendants' denial of coverage for breast
cancer treatment under a medical benefits plan sponsored by the Annuity Board
and administered by Prudential. The Wolfs initially brought claims for breach
of contract and specific performance against both the Annuity Board and

Prudential and a claim for breach of the duty of good faith against Prudential.
On motions for summary judgment by defendants, the district court granted
Prudential's motion but denied the Annuity Board's. Plaintiffs moved for
reconsideration of summary judgment in favor of Prudential and also moved to
amend their complaint to assert a claim for breach of duty of good faith against
the Annuity Board and claims for negligence and deceit against both the
Annuity Board and Prudential. The court denied both motions. Plaintiffs
eventually settled with the Annuity Board, and it is not part of this appeal.
Plaintiffs appeal the grant of summary judgment in favor of Prudential and
denial of their motions for reconsideration and to amend. We have jurisdiction
under 28 U.S.C. Sec. 1291.2
2

Scott Wolf is an associate pastor of the First Baptist Church of Morris,

Oklahoma, and he and Brenda are insured under a medical benefits plan
sponsored by the Annuity Board. The plan is a church-sponsored plan not
governed by ERISA. 29 U.S.C. Secs. 1002(33), 1003(b)(2). Ms. Wolf was
diagnosed with breast cancer in November 1987. She was initially treated with
"standard" chemotherapy that was covered under the medical benefits plan. In
October 1990, her breast cancer was found to have metastasized with the
discovery of a nodule of cancer in her lung. She was given three options of
treatment and chose high dose chemotherapy with autologous bone marrow
transplant (HDC/ABMT). In this procedure, the patient donates her own bone
marrow, which is stored while she undergoes high dose chemotherapy. After
the chemotherapy drugs have cleared her system, the marrow is reinfused into
the patient. On November 20, 1990, Ms. Wolf entered the hospital to have her
bone marrow harvested. On February 25, 1991, she entered the hospital to
undergo high dose chemotherapy and reinfusion of her bone marrow. She was
hospitalized for about a month.

Through a memorandum of understanding between Prudential and the Annuity

Board, Prudential took over administration of the Annuity Board's medical
benefits plan in July 1990. Under the memorandum of understanding,
Prudential was to administer the existing plan, which the parties and district
court refer to as the Aetna plan, until Prudential and the Annuity Board agreed
on a new plan. At some time no earlier than January 1, 1991, Prudential and the
Annuity Board implemented a new plan that the parties refer to as the Church
plan. 3 Both the Aetna and Church plans excluded coverage for treatment
considered experimental or investigational, though the exclusionary language in
the two plans differed. The Aetna plan excluded coverage for treatment
"considered experimental in nature and practices not generally approved by the
AMA." Appellants' App., Vol. II at 472. The plan did not define the term
"experimental." The Church plan excluded coverage for "experimental or

investigational" treatments, and defined "experimental or investigational" to

mean
4 the medical use of a service or supply is still under study and the service or
that
supply is not recognized throughout the Doctor's profession in the United States as
safe and effective for diagnosis or treatment.
5
This
includes, but is not limited to: All phases of clinical trials; all treatment
protocols based upon or similar to those used in clinical trials; ....
6

Id., Vol. I at 73.

Plaintiffs sought coverage for Ms. Wolf's HDC/ABMT treatment both in

November 1990 when she had her bone marrow harvested and in February
1991 (and later) when she received the high dose chemotherapy and reinfusion.
The HDC/ABMT treatment Ms. Wolf received was part of a Phase II clinical
trial conducted by her oncologist. Both in November 1990 and in February
1991 and thereafter, Prudential denied coverage on the basis that the treatment
was experimental or investigational and therefore excluded from coverage.
Plaintiffs then brought this action.

Prudential moved for summary judgment in part on the basis that it was merely
a claims service provider or administrator of a self-funded medical benefits
plan, and therefore had no liability to the Wolfs for benefits under any contract
nor owed them an insurer's duty of good faith. The Wolfs argued that they were
third-party beneficiaries of the agreements between Prudential and the Annuity
Board, that the agreements provided benefits to them in part because Prudential
accepted a portion of the risk under a stop-loss provision, and Prudential was
obligated to make payment under the contract and to act in good faith.

The district court agreed with Prudential. It concluded that the Wolfs were not
third-party beneficiaries of the agreements between Prudential and the Annuity
Board because the stop-loss provision provided for payments only from
Prudential to the Annuity Board and not to plan participants such as the Wolfs.
The court also concluded that Prudential's provision of claims services did not
provide a basis for a bad faith claim or a contract claim against Prudential. The
court reiterated these conclusions in denying plaintiffs' motion to reconsider.
The court denied the motion to amend against Prudential because the motion
was untimely (well after discovery ended) and plaintiffs failed to provide any
good cause for the untimeliness.

10

We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c).
Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994); Applied Genetics
Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
"Summary judgment is appropriate 'if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.' " Universal, 22 F.3d at 1529 (quoting
Fed.R.Civ.P. 56(c)). "When applying this standard, we examine the factual
record and reasonable inferences therefrom in the light most favorable to the
party opposing summary judgment." Applied Genetics, 912 F.2d at 1241. If
there is no genuine issue of material fact in dispute, then we next determine if
the substantive law was correctly applied by the district court. Id.
11

While the movant bears the burden of showing the absence of a genuine issue
of material fact, the movant need not negate the non-movant's claim, but need
only point to an absence of evidence to support the non-movant's claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
265 (1986); Universal, 22 F.3d at 1529. If the movant carries this initial burden,
the non-movant may not rest upon its pleadings, but must set forth specific facts
showing a genuine issue for trial as to those dispositive matters for which it
carries the burden of proof. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91
L.Ed.2d 202 (1986); Applied Genetics, 912 F.2d at 1241. An issue of material
fact is genuine if a reasonable jury could return a verdict for the non-movant.
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Breach of contract claim

12

On appeal, plaintiffs first contend that the district court erred in dismissing their
claim for breach of contract on the basis that they are third-party beneficiaries
of the agreements between Prudential and the Annuity Board. They contend
that "the Wolfs were to receive benefits in the form of claims servicing,
brochures and other information, the stabilization of the self-funded Plan
through loss sharing and stop loss guarantees, as well as reinsurance if the
claims amounted to more than could be covered." Appellants' Br. at 12.

13

Third-party beneficiaries have a right to enforce contracts made expressly for

their benefit. See Roach v. Atlas Life Ins. Co., 769 P.2d 158, 161 (Okla.1989);
Okla.Stat. tit. 15, Sec. 29. We agree that plaintiffs are third-party beneficiaries
of the agreements to the extent that they are entitled to receive claims service
from Prudential. The relief plaintiffs seek from Prudential, however, is not

claims service but payment under the plans for what they contend is covered
treatment. In this regard, we agree with the district court that plaintiffs are not
third-party beneficiaries of the agreements. Under the Aetna and Church plans
and the agreements between the Annuity Board and Prudential, only the
Annuity Board is obligated to pay plan participants such as the Wolfs for
covered claims.4 The agreements provide a direct benefit to the Annuity Board
by essentially reinsuring the Board for covered claims above a certain amount.
Plaintiffs point to nothing in any agreement or plan that relieves the Annuity
Board of its obligation to pay covered claims regardless of the total amount of
its claims or losses it incurs. Thus, the only direct beneficiary of the stop-loss
provision is the Annuity Board, and any benefit plan participants receive
through "stabilization" of the plans or reinsurance is incidental. The Wolfs'
contract claim fails.
Bad faith claim
14

The Wolfs next contend that the district court erred in concluding that they
could not maintain an action against Prudential in its role as plan administrator
for breach of an insurer's duty of good faith. The district court relied on
Timmons v. Royal Globe Insurance Co., 653 P.2d 907, 912 (Okla.1982), and
Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d
1032 (1973), to conclude that Prudential's claims handling services do not
provide a basis for a bad faith action because Prudential is merely the insurer's
agent and is a "stranger to the [insurance] contract." Timmons, 653 P.2d at 913.

15

We do not believe that Timmons or Gruenberg are necessarily dispositive of the

issue because the insurers' agents in those cases were not nearly as involved in
the insurance process as Prudential was here.5 We believe the analysis should
focus more on the factual question of whether the administrator acts like an
insurer such that there is a "special relationship" between the administrator and
insured that could give rise to a duty of good faith. See generally Christian v.
American Home Assurance Co., 577 P.2d 899, 902-04 (Okla.1978). Christian
found that the special relationship on which an insurer's duty of good faith is
based results from the quasi-public nature of insurance, the unequal bargaining
power between the insurer and insured, and the potential for an insurer to
unscrupulously exert that power at a time when the insured is particularly
vulnerable. Id. at 902.

16

Assessing the facts in plaintiffs' favor, Prudential looks much like an insurer.
One of its primary obligations was to assume the ordinary insurer role of
investigating and servicing claims. Though its agreements with the Annuity
Board appear to give the Board ultimate responsibility for benefit

determination, those determinations through at least two levels of appeal in this

case were made by Prudential. Moreover, the Church plan tells plan
participants that only Prudential is involved in benefit determinations:
17 Coverages in this Schedule of Benefits are provided by the Annuity Board....
The
They have arranged to have claims paid by The Prudential Insurance Company of
America. Prudential (as Claims Services Provider) determines the benefits for which
you and your family members qualify under the Plan.
18

Appellants' App., Vol. I at 48.6 As payment for administering the plans,

Prudential received a percentage of the premiums paid to the Annuity Board for
participant coverage. As losses decreased, Prudential's share of the premiums
increased. Additionally, under the stop-loss provision of its agreements with the
Board, when losses reached a certain level, Prudential shared the risk with the
Board; when losses got even higher, Prudential underwrote the entire risk. This
profit and loss sharing arrangement was described as a "risk sharing and cost
arrangement ... which will provide for an increased liability to Prudential if the
loss development is adverse. The Prudential will receive an increased Retention
if the loss development is favorable." Id., Vol. II at 347. In sum, Prudential had
primary control over benefit determinations, and assumed some of the risk of
these determinations. It thus undertook many of the obligations and risks of an
insurer.

19

We therefore do not see Prudential as a "stranger" to the insurance contracts in

this case. It was contractually obligated to administer the plans, and its
contractual obligation directly benefitted plaintiffs as third-party beneficiaries
of its agreements with the Annuity Board. The contractual obligation combines
with the fact that Prudential's benefit determinations could at least indirectly
affect its profits and losses to create a special relationship between Prudential
and plaintiffs. In other words, on the facts as presented by plaintiffs, Prudential
had the power, motive and opportunity to act unscrupulously. We believe that
the Oklahoma Supreme Court would impose a duty of good faith on an entity in
Prudential's position, for the same reasons it imposed the duty on "true"
insurers. See Christian, 577 P.2d at 902-04.7 We thus hold that as a matter of
law, a plan administrator in Prudential's situation could be subject to the duty of
good faith. Whether Prudential should be subject to that duty is a factual
question that we leave to the district court.

20

As an alternative basis for affirming summary judgment, Prudential argues, as

it did in the district court, that even if it is subject to a duty of good faith, it is
entitled to summary judgment because it had a legitimate basis for denying
coverage and thus acted in good faith. We agree with respect to its denial of

coverage under the Church plan. We disagree, however, with respect to the
Aetna plan.
21

The essence of an insurer's breach of its duty of good faith is "unreasonable,

bad-faith conduct, including the unjustified withholding of payment due under a
policy." McCorkle v. Great Atlantic Ins. Co., 637 P.2d 583, 587 (Okla.1981).
"The tort of bad faith does not foreclose the insurer's right to deny a claim; an
insurer clearly has the right to resist payment and litigate any claim to which it
has a reasonable defense." Willis v. Midland Risk Ins. Co., 42 F.3d 607, 611
(10th Cir.1994) (citing Buzzard v. Farmers Ins. Co., 824 P.2d 1105, 1109
(Okla.1991), and Manis v. Hartford Fire Ins. Co., 681 P.2d 760, 761
(Okla.1984)). The focal point of the analysis is the point at which the insurer
denies the claim. "The decisive question is whether the insurer had a good faith
belief, at the time its performance was requested, that there was a justifiable
reason for withholding payment under the policy." Id. at 612; see also Oulds v.
Principal Mut. Life Ins. Co., 6 F.3d 1431, 1437 (10th Cir.1993) (determining
merits of bad faith claim under Oklahoma law requires evaluation of what
insurer knew or should have known at the time insured sought coverage for
claim). In evaluating an insurer's entitlement to summary judgment on a bad
faith claim, we must first determine whether the insurer's conduct may
reasonably be perceived as tortious. Willis, 42 F.3d at 612. Unless the facts,
construed against the insurer, show tortious conduct on the part of the insurer, it
is entitled to summary judgment. Oulds, 6 F.3d at 1437.

22

To the extent that the Church plan governs coverage for Ms. Wolf's treatment,
we conclude that Prudential had a reasonable basis for denying coverage and
cannot reasonably be seen as acting in bad faith. Prudential denied coverage on
the basis of the Church plan's exclusion for experimental or investigational
treatment. Appellants' App., Vol. I at 267-72. It is undisputed that Ms. Wolf's
treatment was part of a clinical trial, and the experimental or investigational
exclusion specifically excluded "[a]ll phases of clinical trials [and] all treatment
protocols based upon or similar to those used in clinical trials." Id. at 73.
Prudential had a justifiable basis for denying coverage under the Church plan,
and is entitled to summary judgment on the bad faith claim with respect to the
Church plan.

23

The Church plan became effective at the earliest on January 1, 1991, and it
provided that "[a]ny benefits under the coverages for expenses of a person's
medical care for charges incurred prior to January 1, 1991, will be determined
in accordance with the plan in effect on the date the service was rendered." Id.
at 48. 8 The Aetna plan was in effect in November 1990 when Ms. Wolf first
began her HDC/ABMT treatment and first sought coverage for that treatment

and when Prudential first denied coverage. That plan did not contain the
explicit exclusion for clinical trials that the Church plan contained, but
contained only the general exclusion for treatment considered "experimental."
24

Prudential argues that even under the Aetna plan, there is a legitimate dispute
over whether the treatment would be excluded as experimental and that its
denial of coverage under the Aetna plan cannot be seen as tortious. In support
of this argument, Prudential cites Lehman v. Mutual of Omaha Insurance Co.,
806 F.Supp. 859, 861 (D.Ariz.1992), which found that the fact that "courts
differ on whether HDCT-ABMT is 'experimental' is evidence that the issue is
'fairly debatable'." Prudential also points to the district court's determination,
again with respect to the Annuity Board's summary judgment motion, that
experimental was ambiguous and that it was a disputed issue of fact whether
HDC/ABMT would be considered "experimental." See Appellants' App., Vol.
II at 504.9

25

We do not accept Prudential's argument. The fact that courts differ on the
meaning of experimental may well mean that the term is ambiguous, but it does
not necessarily mean that the coverage question in a given case is "fairly
debatable." And assuming "experimental" is ambiguous, Prudential's argument
fails on consideration of the rules governing insurance policy interpretation.

26

"An insurance policy, like any other contract of adhesion, is liberally construed,
consistent with the object sought to be accomplished...." Dodson v. St. Paul Ins.
Co., 812 P.2d 372, 376 (Okla.1991). "When an insurance contract is susceptible
of two meanings, i.e. if it is subject to an ambiguity, the familiar rule of
insurance contract interpretation applies and words of inclusion are liberally
construed in favor of the insured and words of exclusion strictly construed
against the insurer." Phillips v. Estate of Greenfield, 859 P.2d 1101, 1104
(Okla.1993).10 Insurers are obviously well aware of this "familiar rule," but
Prudential's argument would allow them to ignore it with impunity. Under
Prudential's argument, an insurer could intentionally insert an ambiguous term
into a policy and continually deny coverage based on that term, despite contrary
court decisions or its own doubts about the meaning of the term. The insurer
could lose coverage cases (though many insureds would not litigate and would
accept the insurer's denial of coverage), but would never face a bad faith claim
because its ambiguous term would create a "legitimate dispute." 11 Such actions
by an insurer would not be in good faith and could not be countenanced. Thus,
mere ambiguity cannot, as a matter of law, create a valid defense to a bad faith
claim.

27

We are inclined to agree with the district court that the exclusion for

"experimental" treatment is ambiguous with respect to whether it excludes

HDC/ABMT. See, e.g., Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986
F.2d 1379, 1383 (11th Cir.1993) (finding undefined "experimental" exclusion
ambiguous where there is no indication who will determine whether treatment
is experimental nor any standards for making that determination). However, we
need not decide whether the term "experimental" is itself ambiguous. Plaintiff
presented evidence from two oncologists specializing in this treatment,
including her own treating oncologist, that HDC/ABMT for a woman in Ms.
Wolf's situation was not experimental in 1990 to 1991 under any reasonable
definition of that term. Appellants' App., Vol. III at 629, 653, 654, 681. Thus,
there is a reasonable dispute over both whether the Aetna plan excluded
coverage for Ms. Wolf's treatment and whether Prudential's denial of coverage
was justified. "[I]f there is conflicting evidence from which different inferences
might be drawn regarding the reasonableness of insurer's conduct, then what is
reasonable is always a question to be determined by the trier of fact by a
consideration of the circumstances in each case." McCorkle, 637 P.2d at 587.
Summary judgment in Prudential's favor is therefore inappropriate.
Motion to amend complaint
28

Finally, plaintiffs contend that the district court erred in denying, after it had
already granted summary judgment to Prudential, their motion to amend their
complaint to add a negligence claim. Plaintiffs contend that their original
complaint actually included a negligence claim, and that what they were really
doing was asking the court to "reinstate" it. We do not believe that plaintiffs'
original complaint can seriously be read to include a negligence claim. The
district court did not abuse its discretion in denying the motion to amend.

29

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for

proceedings not inconsistent with this opinion.

We will refer to defendants-appellees Prudential Insurance Company of

America, The Prudential Service Bureau, Inc., and The Prudential Life
Insurance Company, as "Prudential."

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

Prudential and the Annuity Board also entered into an administrative service

agreement detailing the parties' obligations with respect to administration of the

Church plan. The Church plan apparently is a Prudential form policy. Aetna
Life Insurance Company preceded Prudential as plan administrator, and the
Aetna plan is apparently an Aetna form policy
For simplicity, we will refer to the memorandum of understanding and
administrative services agreements between Prudential and the Annuity Board
as agreements. We will refer to the medical insurance policies as plans.
4

Checks to pay covered claims were apparently drawn on a Prudential account,

but the account either contained Annuity Board funds or was immediately
reimbursed by the Annuity Board

The agents in Gruenberg were the claims adjusters and attorneys investigating
the insured's claim. 108 Cal.Rptr. at 486, 510 P.2d at 1038. Timmons does not
identify what role the agent played, but there is no indication he was as
involved in the process as Prudential is here. Timmons relied on another
California case in addition to Gruenberg, Egan v. Mutual of Omaha Insurance
Co., 24 Cal.3d 809, 169 Cal.Rptr. 691, 699, 620 P.2d 141, 149 (1979), appeal
dismissed, cert. denied, 445 U.S. 912, 100 S.Ct. 1271, 63 L.Ed.2d 597 (1980),
but again the insurer's agents in Egan were merely claims adjusters, id., 169
Cal.Rptr. at 693-94, 620 P.2d at 143-44

The Aetna plan similarly indicated that the administrator was responsible for
benefit determinations. See, e.g., Appellants' App., Vol. II at 472, 481

In analogous situations, a number of courts have found entities such as

Prudential potentially liable in bad faith actions. See Scott Wetzel Servs., Inc. v.
Johnson, 821 P.2d 804, 811-13 (Colo.1991); Sparks v. Republic Nat'l Life Ins.
Co., 132 Ariz. 529, 647 P.2d 1127, 1137-38, cert. denied, 459 U.S. 1070, 103
S.Ct. 490, 74 L.Ed.2d 632 (1982); Delos v. Farmers Ins. Group, Inc., 93
Cal.App.3d 642, 155 Cal.Rptr. 843, 849 (1979)

We note that in its order denying the Annuity Board's motion for summary
judgment, the district court determined that the effective date of the Church
plan was a disputed issue of fact. Though the plan stated it was effective on
January 1, 1991, plaintiffs presented evidence that it was not implemented until
some time after Ms. Wolf completed her treatment. Appellants' App., Vol. II at
504-05. That determination is not before us, and we express no opinion on
when the Church plan became effective

We note also that the district court denied plaintiffs' motion to amend their
complaint to state a bad faith claim against the Annuity Board in part because
there was a "legitimate dispute" over whether the treatment would be covered

under the Aetna plan. Appellants' App., Vol. II at 593

10

11

We realize that the policy here was apparently drafted by Aetna rather than
Prudential and that the policy was issued by the self-insured Annuity Board.
We are not bothered by these facts in applying the general rules of insurance
policy construction. The policy at issue is a printed form, and there is no
indication, nor is it likely, that the Wolfs had any input into the drafting of that
form. We see no reason to stray from application of the general rule of
construction in favor of the insured merely because of innovative insurance
administration and funding practices
We are not necessarily implying that Prudential has taken this position in this
litigation. We do note that coverage under undefined experimental exclusions,
particularly for HDC/ABMT treatments, has been a frequently litigated issue. "
'Since ... February 1989, we have found 24 published federal cases construing
this exclusion [for experimental services]. This amount of litigation reveals the
uncertainty caused by undefined experimental procedure exclusions for
insurance consumers and litigants alike.' " Pitman v. Blue Cross & Blue Shield
of Okla., 24 F.3d 118, 124 n. 11 (10th Cir.1994) (quoting Heasley v. Belden &
Blake Corp., 2 F.3d 1249, 1263 n. 15 (3d Cir.1993)). We also note that
Prudential has been involved in disputes over coverage for HDC/ABMT under
policies containing undefined experimental exclusions since at least 1989. See
Dozsa v. Crum & Forster Ins. Co., 716 F.Supp. 131, 132, 134 (D.N.J.1989).
Adverse court decisions involving coverage for HDC/ABMT have forced at
least one insurer to change its coverage position: "[T]he district court implicitly
embraced Blue Cross's concession it could no longer consider HDC/ABMT [to
treat advanced breast cancer] experimental given the growing number of
adverse decisions noted in Wilson v. Group Hospitalization & Medical Servs.,
Inc., 791 F.Supp. 309, 311 (D.D.C.1992)." Pitman, 24 F.3d at 124 n. 11. In fact,
plaintiffs here presented evidence from which it could be inferred that
Prudential at some point took the position that it could not deny claims where
the policy excluded only "experimental" treatment but could if the policy
excluded "experimental and investigational" treatment. Appellants' App., Vol.
III at 691
Moreover, as the Fifth Circuit has noted, "[o]f course, it is the nature of
medical research that what may one day be experimental may the next be state
of the art treatment." Holder v. Prudential Ins. Co., 951 F.2d 89, 91 (5th
Cir.1992). "Several recent studies and the cases in which they have been
applied to compel coverage of HDC-ABMT for Stage IV metastatic breast
cancer lead to the conclusion that the treatment, under a different protocol than
that administered to Mrs. Holder [apparently in 1987], may no longer be
considered experimental." Id. n. 5 (citing cases).