The Case of the Unhealthy Health Club

by David Staats

  “And if I lose the case, I have to pay the damages myself?”

  “Unfortunately, yes.”

  “I don’t see any point in getting coverage now. The horse is out of the barn. If I lose this case, my business is gone anyway.”

  “I’m sorry, Ms. MacCreedy. This is why we always encourage our clients to read their policies.”

  MacCreedy, who had been regarding the file on Nicole’s desk, looked up at Nicole, moving her eyes only, and stared for some long seconds. “Wait a minute,” she said. “I know we had that coverage. I want to look at the policy we had four years ago.”

  Commercial lines specialist Vaderdot picked up the telephone handset with her left hand and with her right made three precise jabs on the telephone’s keypad. The nail polish on her index finger was chipped. Her voice, which had been condescending to MacCreedy, now took on a pleasant, fellow-teammate-we-work-so-well-together tone. “Brian,” she said, “would you please bring me the archive file for the University Health Club from four years ago … . Right. I need it now. I have the client in my office.” She replaced the handset carefully in its cradle, staring at it as she did so. Her gaze dwelt on the telephone for a moment; she was fully appreciating the accuracy and finality of the action which her right hand had just completed, until, as if having exhausted all possibilities of evasion, she brought her gaze back to MacCreedy. She was unable, or perhaps unwilling, to suppress an expression of anticipatory schadenfreude which glittered in her eyes.

  The enigmatic street noises seeping faintly through the closed window made the office itself seem very quiet. Ms. Vaderdot sat up yet straighter. Her mouth was firmly set in a ruler-straight line.

  MacCreedy sat firm and fixed, solid and stolid, waiting for further revelation.

  Time ticked by.

  A man, thin and wiry, with upstanding hair cut very short, briskly stepped into the office holding a file folder out in front of him like a relay runner straining to hand off the baton to the next runner.

  “Thanks, Brian,” said Ms. Vaderdot. She flipped the folder around to orient it properly and opened it. She flipped up a few pages, studied the next page, and frowned. She rapidly riffed up a lot of pages until she came to another page which she studied. Suddenly, she took a deep, noisy breath, and quickly exhaled. “It seems this policy did have that rider.”

  “I knew it! I told you.”

  “It doesn’t change anything. Your current policy, and the policies for the past two years, do not have that rider.” She brought the pages she had flipped up forward again, and gave her attention to the left side of the folder. “There’s no letter of instruction in here.” She took up again the folder from the third previous year. “There’s no letter of instruction in here, either. I can only assume that you, or Richard, or whoever it was, didn’t want that rider anymore.”

  “But we told you over the phone, ‘Just renew the policy,’ so nothing should have changed,” said MacCreedy.

  “I don’t have any letter to that effect. There’s no memorandum of any such telephone conversation. It is a strict policy in this agency that agents make written memoranda of verbal client instructions. If there’s no memorandum, there was no such instruction.”

  “Well, then, how did the policy get renewed?” demanded MacCreedy.

  “They’re renewed automatically, unless we get instructions to the contrary.”

  “You admit the rider was on the policy four years ago?”

  “It was. But for the past three years, it has not been. And our standard cover letter with instructions to review the policy was sent out with each of those three policies. And no one has contacted us to complain that the policy lacked a rider. No one has asked us to put the rider on. When you receive a policy, it is your responsibility to review it carefully.”

  “I am not happy,” said MacCreedy.

  “I understand that you are not happy. But there is nothing that we can do.”

  “I bet you’ll be able to do something when my lawyer contacts you.”

  The thin line of Ms. Vaderdot’s firmly compressed lips got thinner before she spoke. “If you’re going to threaten a lawsuit, we can’t continue as your agent. I’ll be sending you a thirty-day letter.”

  “What’s that?”

  “By law, we have to give you thirty days’ notice of a policy termination.”

  “You little bitch!” MacCreedy got up and left the office without another word.

  While she was waiting in the lobby for an elevator, the door to a suite of CPA’s opened and a large man emerged. He came and stood by the elevator. He was actually obese. His breathing was labored. Although dressed in a suit, he wore funny black shoes that had Vibram soles and were grossly bulged out at the sides. Elizabeth had never seen him before, but he had a friendly face. Perhaps out of frustration, or desperation, she blurted out, as if it were a half-joking, throw-away question, “Know any good lawyers?”

  “I know several,” he said, in a pleasant, mellifluous voice. “What kind do you need?”

  “I need somebody to go into court and be a take-no-prisoners, mean SOB,” she said.

  The man smiled. “Those kind of lawyers usually make litigation expensive and long-drawn out. Believe me, I’ve seen it.” He paused for a moment to catch his breath. “Thankfully not first hand… . If I needed a lawyer for court, I’d talk to Walter Dure.”

  Ding. The bell announced the arrival of the elevator.

  “Huh! I know him,” she said.

  The man bent his head slightly forward, as if to say, ‘At your service,’ and he stood back to let her enter the elevator first. When he stepped into the elevator, it dipped half an inch, then rebounded, as if the steel cables from which it hung had been rubber bands.

  Chapter 6. I Get to Observe Ms. MacCreedy’s Suit After All

  Mr. Dure had taken me with him to court to observe the argument on a motion which he had filed to compel the production of documents. I had worked on the motion papers, so I understood almost everything that went on, and when the judge ruled in favor of Mr. Dure’s client, I felt like it was my win too. When we came out of the Justice Center into the street, instead of going to the right, towards his office, he turned left. “Let’s go this way,” he said. I had noticed that he generally slowed his walking pace to match mine, so I tried to go faster; but I don’t overdo that because it makes me tired and it embarrasses some people if it is obvious that I am really trying hard to keep up. It was a warm, late July day with quite a wind, which blew dirt and dust down the street, and my dress caught the wind and made it harder for me to walk.

  We went up Court Street and crossed at the intersection to go down Darlington Street. Right there, not far from the intersection, was the Daffodil Café. I wondered if that was where Mr. Dure was going, and it turned out he was. Mr. Dure held the door for me, and as I entered he said, “We win a motion, we get a little reward.” Inside, the smell of fresh baking and fresh coffee was heavenly. It was about eleven in the morning, and the café was not crowded. We stood inspecting the pastry case when the man behind the counter came bustling over.

  “Good morning, counsellor,” he said, cheerfully. “What’s your pleasure this morning?”

  I’m pretty tall and this man was a couple of inches shorter than me. He had curly brown hair and a smile that seemed like it was bursting out from inside him.

  “Morning, Emmett,” said Mr. Dure. He paused for a moment, then shrugged his shoulders and said, “Coffee and a coffee roll.”

  “Same as usual, huh?” said the man behind the counter. “With your figure, you can eat a coffee roll. Me?” He rubbed his rounded stomach. “I just can’t keep the weight off.”

  “Occupational hazard,” said Mr. Dure. He turned to me, asking what I would like, and the man behind the counter gave me his full attention.

  “Can I get a latte?” I said. Because I’m always watching my weight too, I ordered a small lemon pastry, rather than the big cinnamon roll which I really wanted. “I’ll bring
them to you,” said the man.

  There were a lot of empty tables, but Mr. Dure headed for a table where a man was sitting. The man was reading a book, his head bent down and apparently totally engrossed, because he didn’t apparently notice us until Mr. Dure said, “Company welcome this morning?”

  The man looked up abruptly and his face broke into a big smile. “Walter. Sit down.” The man was bald, had a big, tanned face with some pock marks, and a huge mouth full of large, yellow teeth.

  Before Mr. Dure sat, he introduced me to the man: he was Reverend Amice. The Reverend stood, tall and heavy set, and shook my hand with his huge, warm hand. “Sit down,” he said to both of us. He closed his book.

  The Reverend wanted to know about me, and Mr. Dure told him my status and what I was doing and gave me too much credit for winning the motion we had just won. “Very nice,” said the Reverend. “So you’re a native Canterburian?”

  I said yes, and he wanted to know what church I went to, and I told him and he said, very nice. And then the café man, Emmett, as I had just learned, came with our coffees and pastries. “Mind if I join you?” he said.

  “Sit!” said Reverend Amice.

  Emmett looked towards the counter area and called out, “Candy! Hey, Candy!” In a moment, a woman appeared at the doorway that led to the back of the café. “Watch the front,” said Emmett, and then he sat down.

  So then the table was full, with these three men, who apparently all knew each other, and me, an outsider. But they included me in the conversation, and they were all natural, no one avoiding my gaze or acting awkward on account of my eye, and I had a great time. Emmett was complaining that not only could he not lose weight, he kept gaining. He happened to mention that he used a lot of that spray-on pan coating in his cooking. “It’s amazing stuff,” he enthused, “and it’s got no calories!”

  “Emmett, Emmett,” said Mr. Dure. “Does that make sense, that it would have no calories? It’s some kind of cooking oil, right?”

  “Yeah, I think so.”

  “So, you would expect that it would have some calories, right?”

  Emmett shrugged. “Yeah, but the label says zero. And they can’t lie on a label like that.”

  “It depends on what you mean by ‘lie,’” said Mr. Dure. “There’s an FDA rule that says if a ‘serving’ has fewer than five calories, the manufacturer can call it zero. So all the manufacturer has to do is adjust the ‘serving’ to be small enough that it has fewer than five calories. Then they can put on the label that it has zero calories per serving. Now, since you think it has zero calories, you use a lot of it. Right? Maybe that’s how you gain weight.”

  Emmett had a look of wonder on his face. Reverend Amice gave him a hearty smack on the shoulder. “There you go,” he said. “Mystery explained. Now you know why you’re gaining weight.”

  “That could be it,” said Emmett. He looked at Mr. Dure. “How do you know these things?”

  Mr. Dure appeared to me to become embarrassed. This was the first time since I had come to work for that I had seen him let his hair down. “Same thing with sodium,” he said. “Less than 5 milligrams in a serving, they can call it zero.” And then he was silent and looked uncomfortable.

  “What’s that piece?” I asked, to change the subject. A lovely piece of music was coming over the speakers in the café.

  “Oh, I’d have to go look,” said Emmett.

  “Serenade,” said Mr. Dure, “by Schubert.”

  “Speaking of music,” said Reverend Amice, “I’ve got to do a funeral this afternoon, and I probably should go and make sure the music arrangements are in order.”

  “What book are you reading, Norbert?” said Mr. Dure.

  “Kierkegaard,” said the Reverend. He held it up to show the cover: The Sickness Unto Death. He pushed back his chair in preparation for rising.

  “What’s that other book?” asked Emmett.

  Reverend Amice turned up the other book, sheepishly it seemed. It was A Dead Living. “A murder mystery,” he said. “I’m almost done with it. It’s a strange one. There’s a killing early in the book you think was the murder, but it turns out not to be a murder at all, and the real murder happens three-quarters of the way through the book.”

  Before anyone could make any comment, the Reverend added quickly, “It takes place around a vicarage in old England, so I could say it’s professional reading.”

  “You could, but you wouldn’t,” said Mr. Dure, as we all got to our feet.

  “This afternoon, when I get home,” said Emmett, “I’m going to throw out that spray stuff.” (Only he used a different word than “stuff.”) “Get ready to see a new, slimmer me!” he said and he waggled his hips. We all laughed. Even Mr. Dure managed a kind of grim snort, and the little conversation group broke up.

  * * *

  When we got back to the office, I was surprised to see Ms. MacCreedy in the waiting room. She stood up as we entered, her purse hanging on her left elbow and in her right hand an envelope with a torn, ragged top showing that it had been opened. “Mr. Dure,” she said, “I’m back and I’ve got to talk with you.”

  “Kara,” he said to the secretary and receptionist, “can you wait lunch until we finish talking with Ms. MacCreedy?”

  “Sure thing,” she said graciously.

  When we were seated in Mr. Dure’s office he asked, “What can I do for you?”

  “I’ve been paying insurance premiums all these years, and now, they won’t defend me!” She removed a single sheet of paper from the envelope, which was still fat with papers, and handed the sheet to him.

  After quickly reading the paper, he laid it on the desk. He had a serious expression. He questioned Ms. MacCreedy and she told of her discussion with the insurance agent and vented quite a bit.

  “You might bring an action against your insurance agent for negligent failure to bind coverage,” he said. “But just based on the facts as you have told them to me, I couldn’t say that the action would be successful. It might be, if there are additional facts that bear on the case, but in any event, it would be an additional expense, and in the meantime, you’ve got to answer the case that the new Mrs. Hargrave, Vanessa, has filed against you and your business. I suggest you keep the possibility of a suit against the agent in the back of your mind as you defend the negligence suit. Are you wanting me to represent you in that case?”

  “Yes!” she blurted. “Based on what she’s asking for, I could lose my business, not only that, I could lose all my money. Can she really sue me personally?”

  “Unfortunately,” said Mr. Dure, “The short answer is yes, she can sue you personally and potentially get a judgment against you and your assets. Not that she’ll necessarily succeed, but she can try.”

  Ms. MacCreedy’s head and shoulders slumped. “What a nightmare,” she said. Straightening up she took a deep breath and said, “I’ve brought the lawsuit with me.” She put the envelope she had been holding on his desk and gave it a shove towards him.

  There followed a discussion of fees and client cooperation. Mr. Dure had Kara bring in a retainer agreement. He explained the agreement to her, and before she signed it he said: “Litigation, a lawsuit, is a lot like war. Once it is started, it is not necessarily in anyone’s control. Surprising developments can happen. Judges can make crazy rulings; the other party may act irrationally. In this case, you don’t have a choice, you’ve been sued and you have to defend. But be prepared. It may be a stomach-churning, long war. Even if you win, it may be expensive, you may suffer disasters, and you will suffer annoyance.”

  After this speech, Ms. MacCreedy hesitated before signing the retainer agreement; but then she sighed and said, “As you said, I don’t have a choice, do I?”

  “You could allow a default judgment to be taken against you, but if you don’t want to do that, then you have to defend.”

  She signed the agreement and wrote out a check.

  “Now I’ve got a client and you’ve got a lawyer,” said Mr
. Dure. “Let’s get started. We went into the facts a little bit before – Christine” he said to me, “get me your notes from our last interview.”

  Uh-oh. They were in my office. I hopped up and went as fast as I could to get them and came back, and as I handed them to him, Ms. MacCreedy was looking at me. I was glad at least that my handwriting was legible. I don’t know what was said while I was out of the office, but Mr. Dure laid my notes on his desk without looking at them and said, “Let’s go look at your sauna,” he said. “My practice is to inspect the location where the cause of action arose,” said Mr. Dure. “It will help me when I have to ask questions of witnesses.”

  “Alright,” said Ms. MacCreedy.

  Mr. Dure told me to come along. As we passed through the reception area, Mr. Dure told Kara where we were going, and looking at the clock on the mantel in the waiting room said, “I didn’t realize it was so late. Go ahead and take your lunch now, even though we’re going out. Just lock up the office.” It was twenty past one.

  It was twenty of two by the time Mr. Dure held the door to the University Health Club to let Ms. MacCreedy and me go in ahead of him. The air in the health club felt way chilly to us coming in from the heat of the afternoon, and I shivered and rubbed my arms. There weren’t many people there. I took in the atmosphere of the place. It was ordinary: the gray, commercial carpeting, the same machines you would see in any gym, fluorescent lighting. But then I shuddered as I recalled why we were there: this is the place where a man got cooked to death. Somehow, I already had the suspicion that he had not had a heart attack.

  Ms. MacCreedy had gone behind the counter that was right inside the door, while Mr. Dure stood in front of it surveying the club. There was a large, open area with lots of exercise machines and weight machines. Back in the left corner, there was a room of some sort jutting into the large open space. In front of the room were two vending machines, and next to them a trash can. When Ms. MacCreedy had finished whatever she was doing behind the counter, Dure asked her, pointing, “What’s in there?”