By Alan Prendergast
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Defense attorney Walter Wilson said that the application asked questions "in plain English" that required Latham to disclose the ER visit and list her uterine prolapse under "disorder of the reproductive organs." He denied that his client was calling Jennifer Latham a liar. "Time is saying Ms. Latham knowingly misrepresented her health information," he said — a distinction that seemed to elude everyone but the defense team.
Wilson played for the jury once more the phone call Latham had made two months after the accident, asking why she was being refused coverage. He apparently was trying to persuade the group that "Time was never told that Ms. Latham wanted a review of her claim." But the sound of a frustrated, badly injured woman pleading with a blasé underwriter seemed to have the opposite effect on the jury.
("I'm glad they played that the last day," juror Denise Kaatz told Westword the day after the verdict. "Hearing that again made me even more confident that she wasn't trying to deceive or lie.")
As for the $150 million Time supposedly saved through rescissions, the sum was a "nebulous concept," Wilson argued. So was Latham's "alleged emotional distress" from losing her health insurance. The evidence that his company had anything to do with the suffering inflicted on her and her children was "scant at best, non-existent in reality."
That was too much for Latham's father, Jim Shields, who abruptly stood up in the back row. "You can go to hell on that, mister," he said, and stormed out of the courtroom.
After the jury departed for deliberations, Wilson asked for a mistrial. Shields's outburst had "visibly upset" two female jurors, he claimed, and since four of the six were women, he didn't see how his company could get a fair shake. But Judge Roxanne Bailin had polled the jurors about Shields's expression of concern for the fate of the defense attorney's soul, and all had said that it wouldn't influence their decision. The judge denied the motion.
Levy had urged the jurors to send a message loud enough "so that Milwaukee can hear you." Six hours later, they came back with a verdict that was much, much louder than he had anticipated.
The jury decided that Time had breached its contract with Latham and owed her $183,551 for her medical bills. And $7.3 million for emotional distress. And $2 million for economic damages resulting from bad faith, plus additional sums for her children's future medical expenses, economic damages, non-economic damages — all told, the package of punitive and compensatory damages totaled $37.3 million, one of the largest bad-faith judgments in Colorado history.
Latham turned to Levy, tears in her eyes. "Maybe this will change the way they do business," she said.
Some jurors wanted to give her even more. Foreman Dan Vela was in favor of awarding $150 million as a way of punishing Time. "They didn't have a leg to stand on," says Vela, a general manager for a gutter company. "I hope we sent a message back to them that this was wrong."
"Most of their witnesses seemed dishonest, defensive and just showed a basic lack of humanity," says Kaatz, a production manager for an apparel company. "It was kind of frightening."
Through a spokesman, Time officials declined interview requests. Several days later, the company issued a terse statement: "While we cannot discuss the specifics of this case, we disagree strongly with the verdict and will vigorously pursue post-trial motions and appeals."
Latham's staggering award could be reduced or nullified on appeal. But under Colorado law, the punitive damages could also be increased if Judge Bailin finds that the company continued to engage in harmful conduct "in a willful and wanton manner" or aggravated the damages in the way it litigated the case. It could take years to resolve the matter, and Latham doesn't expect her life to change dramatically in the near future.
When she told her six-year-old son about the verdict, his response was, "Now we can buy all the gas we want, Mom." Her own reaction to the nebulous concept of $37 million is similar.
"My mind doesn't go that big," she says. "The day-to-day activities of being a grownup are hard for me. If I have any money, I spend it. I don't mean to. I lose it. It just goes away. I used to be really good with money."
In the aftermath of the accident, she was extremely angry about losing her insurance. But over time she learned that "you can live in anger or you can live in peace." The same thing goes for the man who plowed into her and Alex; she doesn't know his name, but she would like to meet him some day.
What's important to her is not the terrible times she endured getting to the courtroom, but where she finally arrived, the place she knew she would be all along.
"I feel vindicated," she says. "I feel like maybe I am going to be changing things."
For more on the Latham case and Assurant Health — including clips of the CEO's testimony before Congress — go to the Latest Word blog at westword.com. Contact the author at firstname.lastname@example.org.