The American Association for Justice (AAJ) presented the 2004 Steven J. Sharp Public Service Award July 6, to Rapid City, S.D, attorney Michael Abourezk, his co-counsels Michael White, Peter Kahana, and Richard Friedman, and their client, Kay Bergonzi. Kay, a breast cancer survivor and single mother, agreed to be the representative plaintiff in a class action against Central States Health & Life Company of Omaha (CSO) on behalf of all the cancer patients it had shortchanged, although she would have gotten more money from an individual lawsuit.
"I explained to her there were two ways to go," said Abourezk,. "In an individual suit the company will likely pay a lot of money to you personally to go away quietly. "In a class action there isn't any going away quietly. It's all got to be out in public.
It's longer, harder, more expensive, and you won't get near as much money for yourself. The only upside is that if you win, a lot of other people get paid. Kay didn't even hesitate."
"I just thought it was the right thing to do", Bergonzi said. "I thought about it long and hard, and it was going to benefit so many people. Who could say no to that?"
Abourezk originally began the case as a way to help his sister, Carol. When Carol Abourezk was diagnosed with soft tissue sarcoma in 1997, one thing she thought she did not have to worry about was how to pay for her trips from Rapid City to Houston for treatment. She had an insurance policy that was supposed to cover cancer treatment and related travel expenses. But when the insurance company refused to pay for the travel and even some of her procedures, arguing that her treatment was experimental, the bills became yet another burden Carol had to bear.
So he took on the task of convincing the insurance carrier, Central States Health & Life Company of Omaha (CSO), to pay the expenses it had promised to pay. He did not know that this would become a fight that would consume much of his time over the next several years.
Abourezk made it his mission to find out how many other cancer patients were being mistreated by CSO. As Carol’s case moved through the litigation process, Abourezk continued to find more patients who had been underpaid. Every time he notified CSO that he had contacted a patient, the insurer would send that person a check for the underpayments. Several of these checks arrived after the patients had already died.
The situation changed when Abourezk met Kay Bergonzi, a single mother with breast cancer who had been underpaid by CSO. He explained to her that they could either proceed with an individual case with the prospect of a large recovery, or they could pursue a class action, which might take years and provide far less compensation. Kay decided to file a class action suit, although doing so limited her potential recovery to the $10,000 CSO owed her.
The company finally agreed to settle for $20 million. Of that amount, $7.5 million goes to 1,236 plaintiffs who were underpaid, and approximately $9.6 million will be used to pay participants of the disputed policy who are diagnosed with cancer in the future.
"Mike tries to make out like I'm a big hero. I'm not", Bergonzi said. "I'm just an everyday person who struggles with this disease that so many others struggle with, and I try to go to work and pay my bills. I'm just an average person. Sometimes he forgets that."
Mike Abourezk begs to differ. "I am still just knocked out by her," he said.
Abourezk, who is refusing to take a fee in these cases except on amounts the plaintiffs receive that exceed the underpayment amounts, has decided to use his earnings to fund the initial costs of other insurance bad faith cases. He has just been named South Dakota Trial Lawyer of the Year by the South Dakota Trial Lawyers Association, largely because of what happened in this case.