By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
The two sides battled over records, venues and deposition schedules, resulting in numerous delays. Time tried three times to get the case shifted from Boulder to federal court in Denver. The last attempt came only a month before the trial was scheduled to begin and was rebuffed by Judge Richard Matsch, who drily observed that "the defendant's motivation appears to be avoidance of unfavorable rulings and the trial date."
The company's strategy seemed to be to test how much the plaintiff was willing to spend to see her day in court. But then, practically on the eve of trial, the defense made a surprising settlement offer. It was a nice round number: one million dollars.
Another person would have jumped at the offer — particularly one in Latham's lean circumstances, supporting four children on a monthly Social Security income of less than $1,700. Another attorney, having fronted umpteen hours and upwards of $80,000 in costs in a contingency case, would have twisted his client's arm to take it.
But not Levy. And not Latham. She turned down the deal.
It was a lot of money in her world, all right, but so little for a company like this one. She wanted people to know what Time Insurance had done. How many people less fortunate than her had taken the money and been silenced?
"You're going to think I'm a crazy girl," she says now. "But I feel I had a calling. Be the change you want to see in the world — that's what I am trying to do."
Like a lot of trials, Latham v. Assurant was largely about documents and experts. Time had based its decision to rescind the policy on three instances of medical care that the company's post-claim review had uncovered. In 2004 Latham had been seen at a local clinic for pelvic discomfort and told a physician's assistant that "it feels like something is falling out." Six months later, she'd gone back to the clinic complaining of shortness of breath; she was referred to a hospital emergency room, which performed an EKG and other tests and released her.
Time's attorneys contended that such information was exactly what its application requested when it asked whether "any proposed insured had any diagnosis of, received treatment for, or consulted with a physician concerning" a broad spectrum of medical conditions. The clinic and hospital visits hadn't been noted on the application, even though having an EKG "is not something you easily forget," as defense attorney Ellis Mayer put it.
But Levy's expert witnesses characterized the medical records as ambiguous, requiring more investigation than Time bothered to do. John Grund, an attorney who's co-authored textbooks on insurance law and usually testifies on behalf of insurance companies, told the jury that it wasn't clear from the record that Latham had been diagnosed with uterine prolapse, let alone told that she needed surgery; in any event, Time had excluded the condition from the policy even before the accident.
As for the ER visit, the record reported a "negative workup." Latham had been told she was having a panic attack and sent home; small wonder that she would deny having any respiratory problems on the application form five months later. Defense witnesses made much of a notation about an "abnormal" EKG, but there was no indication a doctor had reviewed that finding or that anyone had told Latham about it.
In some details, Time's interpretation was just wrong. In referring her case to the company's rescission panel, the underwriter claimed that the ER records showed that Latham had responded to treatment with albuterol, a drug used for asthma. Latham's chart stated no response to albuterol, suggesting that her shortness of breath wasn't a respiratory issue.
In Grund's opinion, Time's review of the records was skewed toward rescission, and its appeal process was a "sham." The phone call from Latham to Sellers, which was played for the jury, should have triggered a more careful review of her health history.
"If you're taking the position that she intentionally misrepresented material facts," Grund said, "this [call] suggests something to the contrary. You've got to investigate it. They did nothing."
Yet documents and experts could only take the case so far. In the end, the case hinged on whether Latham was more credible than the witnesses from Time. Levy did his best to introduce the jury to the impassive, bean-counting corporate culture he'd been battling for four years.
He played the phone call from the customer service rep who "guaranteed" Latham's bills wouldn't be paid. He played excerpts of Assurant president Don Hamm's stumble before Congress. He introduced evidence that company officials had done so many rescissions the week Latham lost her insurance — 109 in two hours, about 68 seconds apiece — that they had to schedule three cases, including Latham's, for the following day and had no specific memory of her situation at all.
Insurance agent Jennifer Smith testified that she read the questions on the application verbatim to Latham. Latham insisted that Smith asked very general questions, without all the detail found in the application, and filled out the form for her. Uterine prolapse was never mentioned.