When 71-year-old Robert DeArkland discovered he had prostate cancer in
addition to his sciatica and arthritis, he asked his Sausalito
psychiatrist to recommend marijuana to ease the pain.

But early one morning a few weeks after DeArkland bought 13 small pot
plants from an Oakland medical marijuana club, sheriff's deputies
broke down the door of his Fair Oaks home, handcuffed him, seized the
plants and charged him with cultivating pot for sale.

The Sacramento district attorney's office later dismissed the charges
against DeArkland and returned his growing equipment. The narcs,
however, had failed to water the baby pot plants, which shriveled and
died. So DeArkland, a feisty retiree, filed a claim with his insurance
firm and was reimbursed $6,500 for the pot under the part of his
homeowner's policy that covers "trees, shrubs and other plants."

The case appears to be one of the nation's first known instances in
which an insurer has paid for losses of medical marijuana. Earlier
this year in Seattle, where medical marijuana is legal, State Farm
Insurance paid $3,500 to a man who was arrested after he reported that
his medical marijuana was stolen.

The two through-the-looking-glass experiences are apparently the only
publicly known instances of insurance coverage for losses of medical
marijuana. They underscore the unsettled nature of medical marijuana
laws and how insurance firms, traditionally among the most
conservative of businesses, are handling the unusual risks that cops
and criminals pose to their pot-puffing clients.

The cases also suggest that adjusters will increasingly face the
dilemma of setting the value of their clients' marijuana stashes, as
they do with more mundane household items.

3 insurers will cover it

At least three insurers - Farmers, Boston-based CGU, and State Farm,
the nation's largest home insurer, with 67 million policy holders -
will cover losses of medical marijuana, an informal Examiner survey
found.

"Yes, it would be covered like any other loss of prescription drug, as
long as customers could show proof . . . that they received it under
the care of a doctor. That's how we see it," said Diane Tasaka, a
spokeswoman for Farmers Insurance Group, based in Los Angeles and the
state's second-largest insurer of cars and homes.

At State Farm's headquarters in Bloomington, Ill., spokesman Phil
Supple said the firm paid its Washington claimant for his stolen pot
in May, after seeing a letter from his doctor. The firm reimbursed him
about $280 per ounce for his "Grade AA" pot and $200 an ounce for his
"Grade A" pot, after checking prices with the state's officially
recognized supplier of medical marijuana.

"We don't look at the controversy of the drug as long as it's been
sanctioned medically and legally," Supple said. "It's the same as if
it were insulin or an expensive antibiotic. It's all brought up as
personal property."

DeArkland's insurance claim appears to be the first paid in
California, where voters in 1996 passed Proposition 215, legalizing
the growth and consumption of marijuana for medical use.

Unprecedented claim

"To my knowledge it's unprecedented," said Dale Gieringer, coordinator
for the California chapter of the National Organization to Reform
Marijuana Laws. "It's just one more indication that marijuana is being
recognized as a legal substance in appropriate uses."

More claims seem likely. Gieringer estimates the state has 10,000
medical marijuana users and more than a dozen marijuana "clubs" that
supply them.

Insurance representatives initially were surprised at DeArkland's
case, but said similar claims likewise might be covered under standard
policies.

Bill Packer, spokesman for the Sacramento-based Association of
California Insurance Companies, said he'd never seen such a case before.

" "Trees and shrubs' is actually a standard provision in the average
homeowner's policy," he added. "If this is considered a legal shrub or
tree, then it's covered . . ."

Dana Spurrier, a spokesman for the state Department of Insurance, said
the agency had heard of no other cases. Tim Taylor, a legislative
analyst for the department, added that losses of legitimate medical
marijuana might be covered as personal property, or as trees and
shrubs, as long as the loss resulted from a "named peril" - such as
fire, vandalism or theft. It was unclear, he said, whether police
raids were a named peril.

Serious health problems

DeArkland, a retired home inspector and construction worker who lives
north of Sacramento, began having serious health problems in 1987,
when he had a heart attack. He later developed sciatica, a painful
nerve ailment in his lower back and legs, and arthritis in his hands.

"I'm in constant pain," said DeArkland, adding that his prescription
for Percodan isn't sufficient. "It's real severe. My kneecaps get so
sore I can't even touch them."

In November 1997, he was diagnosed with prostate cancer. His urologist
recommended surgery, but DeArkland opted for less invasive alternative
treatments, taking herbs and large doses of vitamins.

In July 1998, he visited Dr. Eugene Schoenfeld, a Sausalito
psychiatrist who conducts court-appointed evaluations of criminal
defendants and once wrote a counterculture column under the byline
"Dr. Hip."

Schoenfeld evaluated DeArkland, and in August 1998, recommended he use
marijuana. In an interview, Schoenfeld said he approved the drug to
relieve DeArkland's pain and anxiety, after explaining possible side
effects such as drowsiness and lung damage.

"Since the passage of Proposition 215, more and more people have come
to see me to make medical marijuana recommendations," he said.

Purchased plants in Oakland

In early August, DeArkland bought a small amount of dried marijuana
and 13 plants at the Oakland Cannabis Buyers Cooperative, after its
operators verified Schoenfeld's letter.

DeArkland put the plants in his barn. "I wasn't trying to hide them,"
he said. "They were in the windows."

DeArkland said he smoked as much as three marijuana cigarettes a day.
"It depends on the amount of pain. It depends on the weather. It
definitely kills the pain," he said.

Shortly after sunrise on Oct. 1, a team of sheriff's deputies from
Sacramento and Placer Counties, clad in camouflage jumpsuits and
bearing a search warrant and machine guns, smashed through DeArkland's
door.

The officers scattered his flock of geese, detained his two teenagers,
who had been preparing for school, and handcuffed DeArkland. He told
them he had terminal prostate cancer, that the marijuana was
recommended by a doctor and that the plants were in his barn.

Deputies seized 13 plants

The deputies seized the 13 plants, all less than 2 feet tall, lights
used for growing them, fertilizer, $424 in cash, 1.5 grams of dried
pot and a letter from Schoenfeld.

During the raid, DeArkland had trouble breathing, and was taken to a
hospital where he was put under observation, released and went home.
He heard nothing more from the police, he said.

This February, a doctor recommended that he have radiation therapy for
his prostate. DeArkland went to the Sacramento district attorney's
office to inquire about his case and was arrested for what officials
told him was an outstanding warrant stemming from the raid, he said.

He was charged with cultivating marijuana and possession of marijuana
for sale, two felonies that could net sentences ranging from 16 months
to three years and 8 months in jail, and released on $10,000 bail,
said his Sacramento lawyer, Joseph Farina.

But after court hearings, Deputy District Attorney Steve Grippi
dismissed the charges for insufficient evidence. He declined to
discuss details of the case, but said he believed Prop. 215 has caused
confusion among law-enforcement officials because it did not specify
the number of plants or illnesses that it covered.

In June, the sheriff's deputies returned DeArkland's property and
plants.

"They were dead. They were dried up. Hell, they don't water anything,"
DeArkland said.

He filed a $258Fmillion claim against Placer County that contends
deputies wrongfully raided his home and arrested him. He filed a
similar $108Fmillion claim against Sacramento County. Both were rejected.

DeArkland also filed a claim with his insurance firm, CGU of Boston,
estimating that the plants were worth about $20,500. DeArkland said he
based his estimate on police figures that each mature plant would
produce four ounces of dried marijuana worth $400 an ounce.

Insurer balked

At first the firm was skeptical, writing him that his insurance
contract applied "only if it is not obviously illegal, immoral or
against the public good."

"It appears the Placer County Sheriff's Department used a valid search
warrant to confiscate the plants, which may not be the same as
stealing the plants," an adjustor wrote him.

But the firm relented after DeArkland showed he had medical approval
and, by July, the only issue was the plants' value.

"I realize the value at maturity approximates $20,500," wrote adjustor
L. Bruce Bogart. "However the plants were not at maturity. Thus, we
need to try to agree on a value . . ."

On Aug. 19, the firm sent DeArkland a check for $6,500, after deciding
to cover the plants under the shrubbery clause of his policy, which
provides a maximum payment of $500 per plant.

Bogart declined to comment on the case, saying only that he knew of no
other claims paid for medical marijuana. "I'm quite happy with the
insurance company," said DeArkland.