Philadelphia Inquirer, June 17, 2009

Monica Yant Kinney: AIDS survivor triumphs over 2d scourge

By Monica Yant Kinney

Inquirer Columnist

After three years, I'm pleased to report that a David vs. Goliath dispute that drew international outrage was won by David.

Only this little guy is a gal. She's known here as M. Smith, since not everyone who has AIDS wants the whole world to know it.

I first wrote about Smith, a former New Jersey resident, in 2006, in a column that began like this:

When M. Smith was diagnosed with cancer and AIDS in the early 1990s, she was given two years to live. That she is still very much alive today is good news to everyone but the people who bet big on her dying.

Had Smith perished on schedule, Life Partners Inc. (LPI) would have made $60,000 on a $90,000 wager - a 66 percent return on the investment. Instead, the company that expected to make a profit on Smith's life insurance policy wound up spending $100,000 keeping her alive.

Now, Life Partners' attempt to wriggle out of the relationship has led to one of the most morbid contract disputes ever filed in New Jersey Superior Court.

Smith, like many patients who received death sentences, sold her $150,000 life insurance policy to a viatical firm for $90,000. It was a perfectly legal, if macabre, means to a comfortable end.

But the deal was complicated by the fact that her life and health insurance were conjoined in a group policy marketed to the self-employed. LPI knew the terms, knew it would have to continue paying her health premiums, but signed the deal, expecting to make a killing on her death.

Instead, more than a decade later, Smith is still kicking.

And thanks to a pair of tenacious pro bono attorneys, LPI finally gave in and paid up.

 

A creepy wait

The columns about Smith's unusual fight for her life drew thousands of hits online and inspired reports on CNN and Canadian TV.

LPI didn't help its case when the president of the publicly traded company dismissed its contractual obligation to Smith as charity.

"I wish I could get somebody to make my house payment for me," LPI's Scott Peden told me, "but that's not going to happen."

Readers were disgusted at how LPI tried to make Smith's life miserable.

Often, the firm would wait until the last moment to pay her rising health premiums, as if hoping to get her policy canceled or cause her stress and alarm. Twice, a stranger claiming to represent LPI investors called Smith at home asking how she was feeling.

"It was," she recalled, "crazy nerve-racking."

Finally, LPI tried to cancel its contract with Smith, as if one party has the right to just walk away.

Smith called Ronda Goldfein at the AIDS Law Project of Pennsylvania, who in turn tapped Cozen O'Connor "super lawyer" Jacob Cohn to join what became an epic court battle.

LPI "must have thought they would easily steamroller over a woman with AIDS," Goldfein recalled. "They never expected her to fight back."

Cohn spent 500 hours on the case. At one point, he filed legal papers dubbing LPI "sociopathic."

The creepiest moment for Smith came when the lawyers debated dueling life-expectancy estimates.

"LPI had a doctor I never met render an opinion that I had less than 10 years to live," she said. Her own attorneys' analysis was far more charitable: 28.79 years.

 

Happy, healthy, free

After appealing a judge's order to place $837,000 in a trust for Smith's future health-care costs, LPI finally settled and sent Smith $250,000.

"This allows me to make my own decisions. That's a relief."

Smith has been cancer-free since undergoing chemotherapy and radiation. She's done well on the same AIDS drug cocktail for years. Now 53, she looks and feels great.

"My doctor says as far as he's concerned, I face the same issues anyone without HIV would face."

Smith is searching for a new health plan. As for life insurance?

"I don't imagine I could get a policy now," Smith jokes. After what she endured trying to plan her death, she's better off focusing on living.