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More On Reggie Lewis



                                                     

                                [The Boston Globe Online][Boston.com]
                                [Boston Globe Online / Sports]

                              

                                Testimony revealing in case?

                                Ruling in Lewis suit may benefit insurance
                                company

                                By Benjamin Lipson, Globe Correspondent,
                                04/23/99

                                Did Reggie Lewis have heart
                                problems that were overlooked
                                before he collapsed and died playing
                                basketball in 1993? And will the ruling of
                                Superior Court Judge Thayer Fremont-Smith
                                earlier this week open the door for The
                                Equitable Life Assurance Society of New
                                York to reclaim $5 million from the
                                Celtics?

                                These will be key questions when testimony
                                begins next week in the medical
                                malpractice suit taken by Donna
                                Harris-Lewis, reportedly to be played out
                                nationally on Court TV.

                                Fremont-Smith ruled Wednesday that
                                allegations of illegal drug use by Lewis,
                                the former Celtics star, may be considered
                                as evidence in the malpractice suit
                                resulting from his death in April 1993.

                                Sources within the industry say there
                                appears to be evidence that when Lewis
                                underwent prior electrocardiograms, there
                                were irregularities in the tests. This
                                would corroborate a Globe story shortly
                                after Lewis's death that said that EKGs
                                given to Lewis every October from 1990 to
                                1992 raised enough concern that follow-up
                                tests were performed, which proved normal.

                                A few years before Lewis died, the team
                                purchased $12 million in several policies
                                and $5 million in another to protect his
                                contract. The EKG tracings submitted for
                                the $5 million policy concerned
                                underwriters who debated how much, if any,
                                of the $5 million they would take.

                                According to Douglas G. Moxham, a partner
                                in the law firm of Lane Altman and Owens
                                who has more than 20 years experience
                                litigating claims for insurance companies,
                                if it is shown in court that prior drug
                                use led to Lewis's death, then the
                                Equitable should consider proceeding
                                against the Celtics for the $5 million.
                                Twelve millions of the coverage cannot be
                                contested even if fraud is proven, because
                                Lewis's death came after the two-year
                                contestable period had expired.

                                On the policy, Lewis answered that he had
                                never used drugs. Moxham says that if the
                                question on the life insurance application
                                for the policy signed by Lewis and the
                                Celtics was answered incorrectly as to
                                drug use prior to the date of the
                                application, that action significantly
                                affected the risk assumed by the
                                Equitable, which then would have been
                                justified in refusing to pay the amount.

                                After Lewis died, there was an
                                investigation by the Equitable.
                                Apparently, the Equitable couldn't uncover
                                information to indicate any material
                                misrepresentation or false statements made
                                on the policy application that would have
                                been justification to invalidate the
                                policy. Evidently, everyone contacted
                                provided the same information concerning
                                lifestyle habits to investigators given
                                during the investigation, the kind usually
                                undertaken by insurers when multimillion
                                dollar policies are involved as part of
                                the underwriting process before it is
                                approved. The claim for the $5 million was
                                paid.

                                Possible stonewalling by all parties to
                                questions raised by the Equitable in a
                                second claims investigation, which was
                                conducted more than a year after the $5
                                million was paid in 1994, may have allowed
                                the statute of limitations to run and
                                ultimately could prevent recovery of these
                                funds by the insurance company even if
                                cocaine usage information is
                                unimpeachable.

                                Under Massachusetts law, a
                                misrepresentation in the application that
                                increases the insurer's risk of loss may
                                be used by the insurer to void a policy if
                                death occurred within two years from the
                                date of the application.

                                Moxham believes that if the Equitable was
                                prevented from discovering pertinent
                                information about Lewis's medical history
                                and only recently was able to discover
                                facts allegedly disclosing drug use, the
                                Celtics' defense of the statute of
                                limitations might not be successful.

                                Speculation concerning the impact of
                                Lewis's alleged cocaine usage might not
                                have been the only issue of concern to
                                insurance company investigators.

                                There was a gap of more than nine months
                                between the placing of the $12 million of
                                coverage on Lewis's life with the
                                Equitable and the $5 million of additional
                                coverage, and with the gap come some
                                questions:

                                Were there underwriting concerns at the
                                Equitable because of Lewis's medical
                                history that may have developed from the
                                time the $12 million was placed that
                                caused delays in the company making its
                                final underwriting decision?

                                Did the Equitable initially limit its
                                exposure to the $12 million and succumb to
                                business pressures to issue the additional
                                $5 million?

                                Why did the Celtics want to insure Lewis
                                for more than their after-tax position
                                after potential payment to his estate? If
                                Lewis died on the last day of his
                                contract, the Celtic obligation would only
                                be any deferred payments remaining under
                                his contract, a sum significantly less
                                than a $17 million recovery.

                                Unlike disability coverage that usually
                                expires at the end of a professional
                                athlete's contract, life insurance can be
                                continued indefinitely even if there is no
                                insurable interest so long as the annual
                                premiums are paid.

                                Aspects of the second claims investigation
                                of the $5 million claim the Equitable paid
                                the Celtics for a life insurance policy on
                                Lewis less than two years old on the date
                                of his death, continuing to raise a
                                question.

                                Would the disclosure of alleged cocaine
                                use have been justification to deny paying
                                the $5 million, but also, had that
                                information been available earlier, would
                                it have been the justification not to
                                issue the other policies totaling $12
                                million? That situation could be
                                embarrassing to The Equitable.

                                Benjamin Lipson is an insurance consultant
                                and editor of Just for Seniors Newsletter.
                                His columns on insurance have appeared in
                                the Globe's business section for many
                                years.

                                This story ran on page D09 of the Boston
                                Globe on 04/23/99.
                                © Copyright 1999 Globe Newspaper Company.