What was supposed to be a five-day trial commenced on December 11 in Courtroom 5 of the Arapahoe County Judicial Building. The jury, three men and three women, was selected with few surprises, and the plaintiffs started their case by putting Megan Jones, wig and all, on the stand.
In slow, careful language wrapped in Australian idiom, Jones answered, over and over, questions about her health. Not only had she been unaware she had cancer, she told the court, but she thought she'd received a clean bill of health from the Mammography Center in April 1994. Over and over again, she answered questions about how she'd applied for her AMS policy. Cushner had filled out the application form from the information on her Texas indemnity policy, she testified. (He'd also filled it out when she wasn't present, a violation of Colorado statute.)
The Texas policy included information concerning previous illnesses that weren't mentioned on the AMS application. But that, Megan testified, was because the Texas application asked for details from the last ten years of the Joneses' lives, the AMS policy only the past two. Although she hadn't read the AMS application when Cushner filled it out, she said, now that she looked at it, she could see some inaccuracies. Her husband's name was spelled wrong, for example; her son's weight was off by about fifty pounds. And there were some omissions: For instance, her ongoing visits to Dr. Williams were not mentioned--even though it was after one of those visits that the Joneses contacted Gary Cushner to see about getting a policy that would cover such "routine" appointments. At about the same time, Cushner's wife saw Dr. Williams at Megan's suggestion.
The defense not only discussed the Texas policy at length, but also a life-insurance policy Gary Cushner had filled out on Megan's behalf the night before her October 20 biopsy. That policy did not indicate that Megan Jones was having a surgical procedure the next morning--but she argued that getting life insurance wasn't her idea in the first place.
"Mr. Cushner rang me up that night and asked if I wanted to apply for some," Megan testified. "I said send it around and I'd fill it out. But then he said no, he had nothing better to do, he'd fill it out and send it around for my signature. He told me to go on with what I was doing, which was fixing dinner."
Nowhere on that application, AMS's attorneys noted, was there mention of the fact that Megan Jones had Hodgkin's disease as a young woman.
"But that was twenty years ago," a stunned Jones replied.
"But you didn't put it down, did you?" responded Gigax.
"But I didn't fill out the form," she answered.
"Objection, your Honor," Schendzielos interjected. "This case has nothing to do with that life-insurance form. It has to do with the AMS health-insurance application."
"Overruled."
"You didn't put down Hodgkin's on the Texas indemnity plan's application either, did you, Mrs. Jones?"
"No, I--"
"Objection, your Honor. The Texas application only calls for the applicant to go back ten years, not twenty, as would pertain to Hodgkin's."
"Withdrawn."
"But you didn't mention that twenty-year-old Hodgkin's on your life-insurance policy, did you, Mrs. Jones?"
"I didn't fill out that application," Megan Jones said again. "Mr. Cushner did. I asked him if I could do it, and he said no..."
"But you signed it, didn't you, Mrs. Jones?"
"Yes, Mr. Gigax, but I didn't read it."
"You didn't read it, Mrs. Jones?"
"No, Mr. Gigax. I know that was stupid, and I will read everything from now on, but I didn't read that."
"Just like the health-insurance form that Mr. Cushner filled in for you."
"Yes, Mr. Gigax."
"And the life-insurance policy."
"He was a friend. I thought I could trust him. I've learned..."
"No further questions, your Honor."
Gary Cushner watched the entire trial from the right-hand side of the defense table, making faces when he disagreed with testimony, shaking his head and waving his hands. Judge Fasing twice warned Tracey Porter, Cushner's attorney, to try to control her client's body language.
Cushner finally took the stand near the end of the trial. Dressed in gray wool pants and an argyle sweater, he looked relaxed.
"Mr. Cushner, did you tell Megan Jones that she was covered for her surgery?" asked Schendzielos.
"Yes, I think I did."
"Mr. Cushner, you never told Megan Jones that her insurance company would pay for the operation, did you?" asked Porter.
"Oh, no," answered Gary Cushner. "No."
One of the primary witnesses for the plaintiff was Thomas L. Roberts, certified by the court as an expert in insurance-industry standards. Even if the insurance company at one time had the right to rescind its policy because of misstatements, Roberts said, it had waived that right when it twice acted upon the contract as a valid contract. "They twice invoked the pre-existing clause," Roberts testified. "They did so based on the same information they later used to rescind the policy altogether. If they wanted to exercise their right to rescind, they should've done it then."
