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Another Insurance Nightmare

Heather Smith's tribulations included not only Tom Luther's assault, but also attacks by insurance companies and their lawyers.

Is the man who attacked you on the night of April 12, 1993, in this courtroom?"

Heather Smith hesitated for a moment before taking her eyes off Denver Deputy District Attorney Doug Jackson. Everything she had been through in the past three years--the pain, the nightmares, the self-doubts--hinged on this moment.

The May 6 trial of Thomas Luther, the man she had accused of stabbing her five times and leaving her for dead, had gone as well as could be expected. It had been difficult, especially hearing him whispering, "She's fuckin' lying" as he sat at the defense table a few feet away. Now she turned and looked at Luther, pointed at him and said, "I'm very certain that's him."

It was done, but the worst was yet to come. Luther's defense lawyer Lauren Cleaver had persuaded her client to waive a jury trial because of the publicity that had surrounded his February conviction for the 1993 murder of twenty-year-old Cher Elder. This trial would primarily revolve around Heather's word against Luther's.

It would be up to Denver District Judge Dick Spriggs to decide who was telling the truth. And Cleaver had made it very clear in preliminary hearings that her strategy would be to put Heather's credibility on trial.

When Cleaver got her chance, she attacked. "She basically tried to make me out to be a liar, someone who was out of touch with reality, and that it had somehow been my fault," Heather recalls.

"Her questions were always asked sarcastically. And when I answered, she would roll her eyes and say, 'Oh, really.'"

For more than an hour, Heather was cross-examined. As she sat at the witness stand, she grew angrier. "I was asking myself, 'How many times do I have to be a victim?'" Her own insurance companies had put her through a similar ordeal, even suing her in November 1995 for being "unjustly enriched" after undergoing surgery to fix her neck, broken by the man Cleaver was defending.

"I was so angry," Smith recalls, "I wanted to scream, 'Thomas Luther is the one on trial here. Why do you want to make me look like a bad person?'"

On the night of April 12, 1993, Smith, then 27, had been trying to sell her car to a man with light-colored hair and blue eyes across the street from her home near Washington Park. Instead of writing a check, he stabbed her five times.

At Denver General Hospital, her father filled out the insurance forms. She worked at a moving and storage company that had a policy with American Medical Security, based in Milwaukee, Wisconsin. She had a $3,300 deductible but otherwise was covered, including physical therapy and psychiatric counseling.

Smith was not expected to live but surprised everyone by hanging on. She shocked them again when she walked out of the hospital eight days later and then reported to the Denver Police Department the next day to give her statement to detectives and a description of her attacker to a police sketch artist.

The police had already been working on one possible suspect: a former boyfriend. It was clear from Smith's statement and that of a witness that her ex-boyfriend was not the attacker. However, the police pursued the possibility that her former boyfriend had put someone else up to it. But the police were unable to find any evidence that he was involved, and the case was officially closed--unsolved--a month after the attack.

Smith was left with a half-inch-wide scar that stretched from her collarbone to her stomach, where surgeons had opened her up to treat the internal injuries. More perplexing was a large bump that had formed on the back of her neck; she complained of constant pain there, muscle fatigue and a limited range of motion. She was examined by an orthopedic surgeon a month after the attack, but he said she was fine.

A small portion of her bills was covered by the Victims Compensation Division of the Denver District Attorney's office: $1,500 went for psychiatric counseling; $500 for physical therapy; and $500 to Denver General Hospital.

Smith made arrangements with DGH to make monthly installments for the $3,300 she was liable for. The bulk of the bill (which would eventually total about $60,000 for the surgeries, hospitalization, physical therapy, counseling and other items) was paid by American Medical Security.

In June 1993 the insurance company notified her that it was no longer medically necessary to continue her physical therapy, and it cut her off. The physical therapy clinic allowed her to continue using its equipment on her own and gave her massages for free. "They also made notes of the problems I was still having with my neck," Smith recalls.

In September 1993, trying to find some way to pay for more physical therapy and possibly plastic surgery to fix the scar on her chest, Smith says, she contacted Allstate agent Gregg Johnson. She hoped that a homeowner's policy she had bought from Johnson, who also sold her mother a multi-car insurance policy that included Smith's vehicle, might cover some of the expenses. But Johnson told her the homeowner's insurance wouldn't cover the expenses. "I guess because I wasn't attacked in my home," she says.

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