When Gary and Renna Pehle of Jackson applied for life insurance in 1999, they underwent a physical exam as required by the insurance company. The exam included a blood test.

Their blood samples went to a private lab in Kansas, which found that the couple tested positive for HIV. The lab notified the company, Farm Bureau Life Insurance Co., which informed the Pehles that it would not provide coverage.

But the Pehles were told only that they had failed the medical examination because of the blood test - not that they had been infected with an incurable virus. If they wanted to know why their application was rejected, they would have to go to the insurance office and fill out a form, and the blood test results would be sent to their personal doctor.

The couple chose not to do so, deciding that they would try again later to obtain life insurance, Renna Pehle says. Having received physical exams just a few months earlier, and with previous clean blood screenings, they weren't alarmed at the insurance company's denial. Perhaps they were rejected because they were both facing minor surgery, they thought - Renna for carpal tunnel syndrome, Gary for a nasal problem.

"Otherwise, we had no reason to believe there was a health issue," Renna said.

Plus, it was the holiday season, and Gary was busy with his carpet-cleaning business, pushing their desire for life insurance down on the priority list.

"We just set everything aside for a while," she said.

Nearly two years later, in July 2001, Renna became ill with symptoms of AIDS, and she went to a doctor. A blood test revealed that she had advanced AIDS.

"I was in total shock," she said. "I made them test me again."

Gary tested positive for HIV.

Remembering the blood test from 1999, the couple asked Farm Bureau Insurance to fax those results to the doctor, and they showed that, indeed, they had tested positive nearly two years earlier. But the company had not told them of the test results, following a policy of notifying them only that they could, in writing, authorize the disclosure of the results to their doctor.

U.S. District Judge Alan Johnson in Cheyenne ruled in July 2003 that the insurance company had fulfilled its obligation to the Pehles. Farm Bureau Insurance was not required to tell them of the positive HIV test, the judge said in dismissing the couple's lawsuit against the company.

But a federal appeals court this week reinstated the lawsuit, ordering Johnson to conduct a jury trial on the matter. The three-member panel of the 10th U.S. Circuit Court of Appeals, in a 2-1 decision, found that while Farm Bureau Insurance wasn't required to disclose the positive HIV test results to the Pehles, the company had a duty to disclose information "sufficient to cause a reasonable applicant to inquire further."

"Whether Farm Bureau breached its duty, and whether any such breach proximately caused the Pehles' injuries, are questions of fact for a jury," wrote Circuit Judge Carlos Lucero.

Chief Circuit Judge Deanell Tacha dissented, writing that the case should be sent to the Wyoming Supreme Court, not back to federal court in Wyoming for trial.

The Pehles' attorney, David Lewis of Jackson, said Thursday he and his clients were delighted that they'll have a chance to take their case to a jury.

"This is not considered a liberal circuit, but I think the judges looked at this case and were just astounded that this company doing business with them, taking their money, wouldn't in any way clue them that they had a serious problem needing to be taken care of," Lewis said. "They were talking to these people on the telephone, and they didn't even whistle. It's just amazing."

The attorney for Farm Bureau Insurance, R. Michael Mullikin of Jackson, was out of the office Thursday. A Farm Bureau Insurance official in Laramie referred calls about the case to a company official in Iowa, but that person couldn't be reached for comment.

The issue of insurance companies disclosing positive HIV results to potential clients has been addressed by courts elsewhere in the country. Tacha noted in his dissent that it appears that in every case, courts have found that companies don't have a legal duty to tell people about HIV-positive results from pre-insurance exams.

However, some states have passed laws requiring such disclosure.

'The end is inevitable'

Renna, 52, said she and Gary, 44, have lived in Jackson since 1997, after living for two years in Glenrock. The couple met in California and lived together for two years before getting married in 1993. Renna was married previously.

Johnson noted in his ruling that the couple said they had "uninterruptedly loved and admired" each other and "remained sexually faithful" since they met and had never taken intravenous drugs. As a result, they had no real reason to believe they were at risk of HIV.

"We just don't live the lifestyle of what you'd expect" for someone to become infected, Renna said.

She said she has learned that "this is a disease that affects everybody, not just drug users and gay people. I'm neither."

Had the couple been told in 1999 of the positive test results, Lewis said, their lives would be much different.

"Had the defendants not abandoned (Renna) when they knew she was HIV positive in 1999 and 2000, her disease could have been controlled, and it would not have fulminated into full-blown AIDS, or at least not in such a short period of time," the couple's lawsuit states. "…Had the defendants not abandoned Gary when they knew he was HIV positive from 1999, his disease could have been controlled, and it would not have continued to progress so rapidly, and he may have lived productively and as normal a life as possible under the circumstances."

As it is, both Renna and Gary have had to stop working, and "the end is inevitable" for Renna, Lewis said. In addition to Gary's carpet-cleaning business, Renna operated a floral shop that has since been shut down because of her condition.

While Lewis described Gary's disease as "arrested," Renna suffers from a host of AIDS-related medical problems, and she travels to Salt Lake City monthly for treatment.

"Physically, it's just a day-to-day thing," she said in a telephone interview. "Some days I feel halfway decent. Other days I have no energy, no strength.

"Because the disease has gone to full-blown AIDS, I have quite a few opportunistic infections, heart problems, kidney problems, pre-stage cancer. I lost part of the vision in one eye. There's no muscle left in my body - I'm all skin and bones."

With no health insurance, the couple relies on government health care and private HIV treatment programs to cover expenses, she said.

Before she found out that she had AIDS - but after the insurance company learned that she had HIV - Renna left a job at Albertsons in Jackson that had benefits including life, health and disability insurance in order to open her floral shop, she said. Because she and Gary felt healthy, they didn't obtain replacement health insurance - "We figured we could get by without any for a while," she said.

They did, however, have insurance for their businesses, automobiles and home, and it was with Farm Bureau.

"They knew the whole time that I was infected, but they didn't bother telling me," she said.

The task ahead

Based on the appeals court's ruling this week, the Pehles' hopes for a court judgment in their favor hinge on showing a jury that the insurance company's notification was insufficient for their serious health problem.

The couple and Lewis insist that the written and verbal notification that they had been denied life insurance coverage gave them no reason to think they had life-threatening health problems.

"There wasn't any reason for us to believe there was a scare or fear factor to it," she said.

"It isn't just the warning - it's the way the warning's given to you," Lewis said. "It's like someone telling you that you might want to be careful driving over Togwotee Pass because it's snowing, when in fact there's a blizzard that has cars trapped just minutes after they get started. They haven't warned you about anything.

"The warning has to be adequate to the danger."

State Editor Chad Baldwin can be reached at (307) 266-0583 or at chad.baldwin@casperstartribune.net.