Man claims $200,000 for herpes

Is getting a rare disease an “accident”? Randolph Gibbens, who was paralyzed after contracting herpes, believes so. But his insurer, which is fighting his workplace disability claim, contends that if diseases are considered accidents, then everyone’s insurance premiums could skyrocket.

After Gibbens, 48, had unprotected sex with three women in early 2003, he developed herpes simplex type 2. The disease progressed into a rare inflammation in his spinal cord, and within weeks he was paralyzed from the mid-abdomen down. Gibbens, who lives in Port Coquitlam, B.C., and worked as a high pressure water blaster, was insured by Co-operators Life Insurance. His accidental disease or dismemberment plan pays $200,000 for “proof of paraplegia” or lost use of his legs due to “external, violent and accidental means.”

But when Gibbens filed his claim, Co-operators denied him payment. He launched a lawsuit, but the insurer argued that his paraplegia was caused by a disease (herpes), and that diseases are not accidents. In 2007, the B.C. Supreme Court ruled in favour of Gibbens, saying that contracting herpes when having unprotected sex was as accidental as “being bitten by a mosquito carrying the West Nile virus.” Co-operators appealed provincially, but the ruling was upheld. Last week, the federal court heard yet another appeal, and the verdict is pending.

Gibbens can’t understand why the insurer is being so combative. “They’re such a huge company and I’m just one little person,” he says. His lawyer, Guy Collette, adds that the warning of rising premiums is an empty threat because there have been so few incidences like that of his client. “It is simply not supported in reality that there would be a flood of similar complaints.”

But Bruce Laughton, a lawyer for Co-operators, says the case is “an issue of national importance.” If the ruling against the insurance firm isn’t overturned, he says, then coverage could get more costly for everyone. Patricia Jackson, lawyer for the Canadian Life and Health Insurance Association, agrees. “Rates could go up, coverage will be cut back, and many people may not qualify,” she cautions.