Jul 2, 2009

One of the most famous cases in which I was involved was the series of Bad Faith Insurance battles involving the family of Marco Gonzales verses Shelter Insurance Company. Marco may have been the smallest client I ever had, just 9 inches tall and 19 ounces. But his story, the backlash from the insurance company, and the change in the law he inspired leaves a lasting legacy.

Marco Gonzales was born more than 4 months prematurely as the result of an automobile collision. The condition that Marco's mother started experiencing post-auto accident was called a placental abruption. A placental abruption occurs when the placenta begins to tear away from the uterus, and often, this results in internal hemorrhaging [bleeding] which is likely to be fatal to the mother. It is not too surprising then, given the serious condition of Marco's mother and as premature as he was, that the surgeons did not have any hope that Marco would survive the procedure. Medical science tells us that babies really cannot live if born earlier than a gestational development of 24 weeks. Marco's gestational development was between 20 and 22 weeks. These critical additional weeks are vital to lung development. So, from the outset, the surgeons wrote off Marco entirely and gave no hope for his survival.

However, during the surgery to save the mother's life, doctors discovered that Marco was still alive. After he was born (9 inches tall and 19 ounces), they swaddled him and placed him on his mother's chest. Unfortunately, doctors told Marco's mother that he was so premature that life- sustaining measures were useless, and she should expect him to pass within minutes. Surprisingly, a minute turned into several minutes, then half an hour, and then even an hour. Marco, the little boy no one gave a chance, lived for 66 minutes. Days later, Marco's mom left the hospital with both his birth and death certificates, about 10 photos, and a broken heart.

When I first met Marco's mother it was several months later. Initially, she came to see me only about the outstanding hospital charges that Shelter Insurance was refusing to pay. Shortly thereafter, we sent a polite letter asking that Shelter pay the $32,000 in medical bills. Shelter ignored us. I wrote them again. And yes, they ignored us again. At that point, I considered suing them but was having some problem finding law either in Colorado or anywhere else for that matter that had ever dealt with a similar issue. Here we had a baby born as a medical miracle who should not have ever taken a breath. Marco was born alive, he lived, and then he died. Up until this time, however, Colorado law did not recognize a claim for death of a baby born before the point of viability (approximately 24 weeks gestation). The law was fairly black and white: A nonviable fetus had no rights. But how do you call a baby born alive and documented by a birth and death certificate a non-viable fetus? On paper, Marco was not viable. But a fetus is a pre-born baby. Marco lived unassisted for over an hour. Marco fit no legal category.

After we filed our wrongful death lawsuit, Shelter Insurance Company continually referred to Marco not by his actual name, but as a "nonviable fetus born alive."

Under Colorado law at that time, children born alive were assumed to be viable. A fetus (a pre-born infant) that dies is not viable. But what about an admittedly nonviable baby that beats the odds and is born alive and even lives an hour without any life support? Not surprisingly, there appeared to have never been another single case like this in Colorado. Other states had some precedent with similar facts but nothing directly analogous to this situation. The fact that there existed no legal precedent for what we were trying to do was exploited to no end by Shelter. Their lawyers continued to scoff that we would bring such an outrageous claim. My impression was that these insurance company mouthpieces seemed to lack a soul.

An otherwise healthy baby lost his chance to live because of a careless driver who was insured by Shelter Insurance Company, yet Shelter refused to pay for the baby's death. All his mother was left with was the overwhelming medical bills as a reminder of Shelter Insurance's refusal to recognize the obvious. Marco was a baby, not a fetus. Marco was born at St. Anthony's Hospital at around noon and died over an hour later. All of this was perfectly documented. Shelter argued that because Marco's gestational development was under 24 weeks and on paper he should not have been able to live outside of mom's body, he didn't have any rights. Of course, Shelter's final analysis was that since Marco wasn't a real human being, we could not sue for his wrongful death, and therefore they didn't owe Marco's mother one penny for her loss.

In what was described at the time as a landmark ruling with national implications, the Honorable Judge R. Michael Mullins of the Denver District Court correctly ruled that Marco, despite the physiological obstacles, was indeed born alive and had all the same human rights as any other baby, even though he was only 20-24 weeks intra-utero. This meant that contrary to Shelter Insurance's arrogant mantra, Marco the "non-viable fetus born alive," could speak from the grave through legal counsel and allow a jury to determine the extent of monetary recovery that the family should get for the loss of their little boy.

At the jury trial, the lawyer for the insurance company continued to call Marco a fetus and continued to ask the jury not to recognize Marco as human. But a jury of reasonable folks told Shelter in no uncertain terms that Shelter was off base and that Marco was in fact a person.

The second trial against Shelter on this same basic issue started during Shelter's appeal of the prior jury verdict awarding money for Marco's death. In this action, we, on behalf of the family, sued Shelter for bad faith insurance misconduct for the manner in which they handled this claim, and even their continued reluctance to abide by the prior jury verdict. Shelter hired new lawyers who continued their same campaign of calling Marco a fetus. After four days of trial, the jury not only awarded substantial money to Marco's family but, quite unexpectedly, also awarded huge punitive damages against Shelter for their willful misconduct.

Since those trials years ago, Shelter has continued a campaign of appealing these verdicts. Both appeals upheld the trial court's rulings and Shelter may now have finally run out of legal options with a recent Appellate Court decision that once again upheld the jury verdict.

Marco Gonzales was a very small boy, just 9 inches tall and just 19 ounces, but for those 66 minutes his heart pumped like a lion. In fact, I argued to one jury that I suspect Marco was nearly all heart as I read then a brief passage from Horton Hears A Who: "a person's a person no matter how small." As a result of his little life, the rights of premature children born in Colorado have been solidified. He took on a corporate giant and beat them at every level of the judicial process, not once, but twice. He taught me the precious lesson that no matter how small a case might seem when it comes through the door, a good attorney needs to always carefully look at every case for hidden gems.

I am hopeful that Marco taught Shelter a lesson or two as well.

On a personal note, I cannot help but think about Marco every time I see small children playing in a park or airport. Marco would just now be turning four years old. I wonder what type of child he would have been. I wonder what type of man and father he might have been. More globally, I wonder what this world might have gained had this little boy had a chance at life.

At Anderson Hemmat, we never forget that each of our clients has a story. But few clients have ever had the personal, professional, and nationwide impact of Marco Gonzales. I will always view him as a little fighter who made this world a little better.


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