Preview
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12 ~~ —
|ENTERE!
CAUSE NO. 2007-69136 ERIFIED
TYRELL RUBIO § IN THE DISTRICT COURT OF
Plaintiff §
vs. § HARRIS COUNTY, TEXAS
FARMERS INSURANCE EXCHANGE §
Defendant § (SL supiciat oistrict
PI LAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSUR E
1 Comes Now Plaintiff Tyrell Rubio, and files this Original Petition, and
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Request for Disclosure, complaining of Farmers Insurance Exchange, Detenda nf: and
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for causes of action would show this Court the following: Lo
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A. Discovery Control Plan _
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2 The amount in controversy does not exceed $50,000.00. Thbrefore, this
case will be controlled by Discovery Control Plan Level | pursuant to Texas Rule of Civil
Procedure 190.2.
B. Parties
3 Plaintiff Tyrell Rubio is an individual and resident of Harris County, Texas.
4 Defendant Farmers Insurance Exchange is a foreign corporation operating
under the laws of the State of California. Defendant Farmers Insurance Exchange does
business in Texas and breached a contract in Texas. Defendant Farmers Insurance
Exchange maintains sufficient and systematic ongoing minimum contacts with Texas
through its insurance business that assertion of personal jurisdiction over Farmers
Insurance Exchange would not offend traditional notions of fair play and substantial
justice. Defendant Farmers Insurance Exchange may be served with process by
serving its registered agent for service of process, Ms. Beth Morse, 15700 Long Vista
RECORDER'S MEMORANDUM
is instrument is of poor quality
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Drive, Austin TX 78728-3822.
C. Venue and Jurisdiction
5 Venue is proper in Harris County, Texas because Plaintiff's cause of
action accrued in Harris County, Texas. This Court has jurisdiction over the Defendant
for the reasons stated in paragraph 4, supra.. This Court has jurisdiction over the
controversy because the amount in controversy exceeds the minimum jurisdictional
limits of this Court.
D. Facts
6. Tyrell Rubio was badly injured in a truck-motorcycle accident on or about
August 3, 2006. Mr. Rubio, was traveling northbound on Highway 59 in or around the
20,500 block, and was taking the Townsen Road exit. On the exit ramp, Mr. Rubio was
driving his motorcycle reasonably and prudently in the left lane. Mr. Rubio holds a
motorcycle license in the State of Texas. Defendant’s insured, Mr. Emmanual Abiona
{a convicted criminal) was driving a white International box van on that exit ramp in the
right lane. Mr. Abiona carelessly and negligently changed lanes to his left when unsafe,
and crashed his truck into Mr. Rubio and his motorcycle, causing Mr. Rubio to be
violently knocked down off of the motorcycle and to the pavement. The investigating
officer cited Defendant's insured for making an unsafe lane change. The crash and fall
to the pavement caused Mr. Rubio substantial bodily injury.
7 Mr. Rubio hired the undersigned counsel to represent him in his claims
against Mr. Abiona and his insurer, Defendant Farmers Insurance Exchange. After
lengthy negotiations, the parties agreed to settle Mr. Rubio’s claims in multiple parts for
different categories of Mr. Rubio's damages. The first part of the settlement called for a
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payment of $104,336.00, which was comprised of $100,000.00 for Mr. Rubio’s “general”
damages (pain and suffering, disfigurement, physical impairment, mental anguish), as
well as for his past lost wages, $4336.00. Defendant paid the $104,336.00 on or about
August 9, 2007 by check number 8371000226. A true and correct copy of the check is
attached as Exhibit “A”.
8. At the same time, after an August 2, 2007 face to face meeting and
negotiation session between Defendant's adjuster Jeff Richards and the undersigned
counsel at counsel's office in Houston, Texas, the parties agreed to resolve the
outstanding medical expenses as a separate part of the settlement. Defendant's
adjuster, Mr. Richards, enunciated the parties’ agreement in writing via an August 3,
2007 e-mail following the face to face meeting as follows:
We agree to pay the following: 1) 100,000 in general damages, 2) 4336
lost wages, 3) paid medical specials to be determined. The paid medical
will include amounts paid by the health insurer, amounts paid my Mr.
Rubio and any amount for which the hospital does not write off in
exchange for the health insurer payment. Please keep me posted on
resolution of the paid medical. The partial payment will include the general
damages as well as the lost wages.
Jeff Richards
Phone 225-293-1204
Fax 225-293-4916
A true and correct copy of the August 3, 2007 e-mail is attached as Exhibit “B”. The
parties were cognizant of the issues pertaining to Texas Civil Practice and Remedies
Code section 41.0105, commonly referred to as the paid or incurred statute during their
negotiations about settlement. The parties expressly stated how they would ascertain
what medical expenses would be payable under the terms of the settlement agreement,
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as demonstrated in the above-quoted e-mail. That is, Defendant agreed to pay the
amounts actually paid out of Mr. Rubio’s pocket, the amounts his health insurer paid,
AND Defendant agreed to pay those amounts not written off by the hospital (in this
case, Memorial Hermann Hospital in Houston, Texas).
9 Subsequently, on or about October 1, 2007, Plaintiffs submitted detailed
documentation of these medical special amounts to Defendant's adjuster, Mr. Richards.
The medical specials totaled $43,451.64 in past medical billing. This total is strictly
comprised of amounts falling within the agreement of the parties. That is, it is
comprised of (1) co-pays actually paid by Plaintiff, (2) amounts paid by Plaintiff's health
insurer, and (3) the largest amount is comprised of $28,525.66 owed to Memorial
Hermann Hospital System. Memorial Hermann Hospital System's counsel brought to
Plaintiff's counsel's attention a clause in its agreement with Plaintiff's health insurer,
United Healthcare. That clause states the following:
3.6 Adverse Actions Caused by Third Parties: If Member receives
services due to accidental or intentional injury caused by a third-party,
Hospital may also file a hospital lien under the Texas Hospital Lien statute
against the responsible third party to recover its full charge.
A true and correct copy of the page of the agreement between United Healthcare and
Memorial Hermann Hospital System is attached as Exhibit “C”.
10. This is a clause in the agreement between Memorial Hermann Hospital
System and United Healthcare, Plaintiffs health insurer. It says that Memorial Hermann
Hospital System can recover amounts payable by United Healthcare AND, in cases
where a covered “member” (someone insured by United Healthcare) is injured due to an
accident caused by some third-party, the hospital is not limited to recovering merely
what United Healthcare pays, but may seek to recover 100% of its charge for its
services. The clause certainly means that Memorial Hermann is not writing off a nickel
of the amounts it billed for Plaintiff Tyrell Rubio's treatment after the accident.
Therefore, that full amount is now due and owing to Plaintiff from Defendant Farmers
Insurance Exchange pursuant to the express terms of the settlement agreement
enunciated by Farmers’ adjuster in his August 3, 2007 e-mail.
11. Memorial Hermann Hospital System’s attorney has stated in
correspondence that the full amount of $27,862.95, plus an additional $662.71 (as Mr.
Rubio's co-pay) is due and owing and is not being written off and has not been paid by
anyone at this point. A true and correct copy of this letter is attached as Exhibit “D”.
Whether this is analyzed under case law interpreting section 41.0105 or the express
terms of the settlement agreement between the parties to this case, or both, the full
amount is now owed by Farmers Insurance Exchange to Plaintiff because it has been
paid or incurred under any definition of those terms, and certainly under the definition
employed by the parties to this case in the August 3, 2007 e-mail agreement. Plaintiff
contends that the terms of the contract as enunciated by Defendant's adjuster control
the disposition of this case.
12. It is very simple: Plaintiff will owe 100% of the Memorial Hermann Hospital
System bill no matter what, and that is why it is paid or incurred.
A If United Healthcare pays 100% of the outstanding bill, then Mr.
Rubio will owe that money out of his settlement to United
Healthcare under its subrogation agreement with Mr. Rubio in the
—_—
health insurance contract.
If United Healthcare pays none of the outstanding amount, then
Memorial Hermann will have the right to pursue the third-party who
caused the accident and Farmers Insurance Exchange for 100% of
the bill. They will, in turn, point to Mr. Rubio and say he has
teleased and indemnified us and so you must collect from him.
If United Healthcare pays some but not all of the bill, Mr. Rubio will
owe United Healthcare what it has paid, and will owe the balance to
Memorial Hermann under a release and indemnity agreement with
the third-party and Farmers Insurance Exchange.
Therefore, under no circumstances can it be said that 100% of the Memorial Hermann
Hospital System bill has not been incurred by Mr. Rubio. It is likewise clear that
Memorial Hermann Hospital System has not and will not write off any of its bill.
13. Finally, it is important to point out that Defendant's adjuster expressly
stated on the telephone to Plaintiff's counsel on or about Thursday, October 26, 2007
that his calculation was that he would be writing a check for the medical specials under
the August 3, 2007 e-mail agreement for over $42,000.00, which necessarily included
100% of the Memorial Hermann Hospital System bill. Only after the adjuster’s
supervisor looked into the case did the adjuster's decision get reversed under what may
only be charitably described as a dubious legal theory.
14. Defendant has failed and refused to pay the amount owed to Plaintiff, and
is now in breach of its contract with Plaintiff.
E. Causes of Action
Breach of Contract
15. Defendant has breached its written contract with Plaintiff by failing and
refusing to timely pay Plaintiff in full for the amounts owed for monies owed, as
described above. Plaintiff has demanded payment from Defendant in writing on multiple
occasions. Plaintiff is entitled to his actual damages under the contract from Defendant
together with interest for which he now sues.
16. Further, Plaintiff has had to hire the undersigned attorney to pursue his
claims against Defendant, and is entitled to a reasonable attorney's fee pursuant to
Texas Civil Practice & Remedies Code section 38.001 et seq.
3. Conditions Precedent
17. Ail conditions precedent to recovery for Plaintiff have occurred or been
satisfied.
F. Damages
18. Defendant's conduct has caused Plaintiff to suffer economic damages in
the amount of not less than $28,525.66, which is the full amount of the outstanding bills
owed to Memorial Hermann Hospital System. In addition, Plaintiff is entitled to an
award of prejudgment interest at the highest legal rate, as well as post-judgment
interest at the highest legal rate, together with reasonable attorney’s fees for all pre-trial
work, trials, post-(udgment motions and appeals, and costs of court.
19. WHEREFORE, premises considered, Plaintiff prays that Defendant be
cited to appear and answer and that upon final trial, Plaintiff have and recover judgment
from Defendant for his:
1 Actual damages;
2 Costs of court;
Pre-judgment interest at the highest legal rate;
Post-judgment interest at the highest legal rate;
Reasonable attorney’s fees for all pre-trial work, trials, post-trial motions,
and appeals; and
All other relief to which Plaintiff may be entitled.
G. Request for Disclosure
20. Plaintiff asks that Defendant provide responses to the Requests for
Disclosure contained in Texas Rule of Civil Procedure 194.2(a) through (I).
Respectfully submitted,
ENGELHART & GREENWOOD, L.L.P.
atl, by
Michael C. Engelhart
TBA No. 00793690
1300 McGowen Street
Houston, Texas 77004
(713) 333-3200 telephone
(713) 621-1449 telecopier
www.midtownlegal.com
ATTORNEY FOR PLAINTIFF
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jeff-richards@farmersinsurance.com Fri, Aug 3, 2007 at 7:07
PM
To: mengelhart@midtownlegal.com
Hi Mike
We agree to pay the following: 1) 100,000 in general damages, 2) 4336 lost
wages, 3) paid medical specials to be determined. The paid medical will
include amounts paid by the health insurer, amounts paid my Mr. Rubio and
any amount for which the hospital does not write off in exchange for the
health insurer payment. Please keep me posted on resolution of the paid
medical. The partial payment will include the general damages as well as
the lost wages.
Jeff Richards
Phone 225-293-1204
Fax 225-293-4916
“Michael
Engelhart" To: jeff.richards@farmersinsurance.com
Subject: our meeting today
Sent by:
mengelhart0@gmail.
com
08/02/2007 03:34
PM
Please respond to
mengelhart
[Quoted text hidden]
oe bese ss wom
i wb ier
lofi 11/8/2007 3:40 PM
Memor mann Hospital System
and Affiliates
Houston, Texas
Effective Date: February 1, 1999
payments for additional Outpatient Surgical or Scopic Procedures
performed shall be made.
SECTION 3
Miscellaneous Provisions
3.4 All-Inclusive Rates. All rates are all-inclusive unless specified otherwise
in this Appendix.
3.2 Hospital-based Provider Charges. All charges for professional services
provided by Hospital-based Providers are paid in addition to the payments set
forth in this Appendix. Hospital will assist Plan in securing Participation
Agreements with such Providers. :
3.3 Mental Health and/or Substance Abuse. Mental health and/or substance
abuse services shail not be eligible for payment under this Agreement.
3.4 Exclusions: The following services and/or items are paid in addition to the
=“
ents set forth in this Appendix and shail be paid for at a Payment Rate of
orthotics/prosthetics (Revenue Code 274), implants (Revenue Codes 275-
and TPA/TPN. (Revenue Code 252 or 259). Hospital shall assume
responsibility for clearly identifying on each bill all services and/or items that are
paid in addition to the payments set forth in this Appendix.
3.5 Inpatient Stop Loss Threshold.
When Customary Char for Health Services rendered during a single
Admission exceed Inpatient Stop Loss Threshold”), Hospital shall
be paid a Payment Rate lieu of the Per Diem Payments set forth in
section 2.2; provided, however the amount Hospital is paid for each day of
that Admission shail not exceed $ For purposes of the Inpatient Stop
Loss Threshold payment calculation , Per Case Payments for Cardiac and
Transplant Procedures, as set forth in section 2.2, shall be excluded. This
rovisio! applicable t morial Herman! and Memo.
Hermann Children’s Hospital.
single Admission exceed
Hospital shall be paid a Payment aS
When Customary Charges for trauma related Health Services rendered during a
Inpatient Stop Loss Threshold”),
Rate o' in lieu of the Per Diem Payments
set forth in section 2.2. Trauma cases are defined as those billed under ICD-9
Diagnosis Codes: 800-809, 851-909 and 925-999.
When Customary Charges for non-trauma tefated Health Services rendered
during a single Admission exceed (‘inpatient Stop Loss
12N0/96 HSP.TX
CONTRACTIMEMORIAL'AMEND#1‘aorne
CONFIDENTIAL UHC 001394
Memot::z Hermann Hospital System
and Affiliates
Houston, Texas
Effective Date: February 1, 1999
Threshold”), Hospital shail be paid a Payment Rate oj in lieu of the Per
Diem Payments set forth in section 2.2; provided, hi ef that the amount
Hospital is paid for each day of that Admission shall not exceed
For purposes of the Inpatient Stop Loss Threshold payment calculation, Per
Case Payments for Cardiac and Transplant Procedures, as set forth in section
2.2, shall be excluded. This_pro ly-apples
only to Memorial
applies visi
to M Hermann
on a
and Memorial Hermann Children’s Hospitals.
3.6 Adverse Actions Caused by Third Parties. If Member receives services
due to accidental cr intentional injury caused by a third party, Hospital may also
file a hospital lien under the Texas Hospital Lien statute against the responsible
third party to recover its full charges.
ig ‘NO.
CONFIDENTIAL
1210/96 HSP.TK 12/07/98
CONTRACTMEMORIALAMEND##
UHC 001395
oeceegeagen tes cieveresteseeeteenraeesectcsictetereeeeseres ceseeatecsteeeeetesensesessssnsseeny weoi7eor
Bae eee caee
09/10/2007 MON 15:18 FAX Suljias Johnston
Sullins Johnston
Rohrbach , :’é Magers
Attorneys at Law
P, te, wal Cerguracinn}
JARED C. JOHNSON Direct Dist: 713.499.3114
E-s1att: Johnson@sjrm.com
September 10, 2007
VIA FACSIMILE (713) 621-1449
Michael C. Engelhart, Attorney at Law
ENGELHART & GREENWOOD, L.L.P.
1300 McGowen Street
Houston, Texas 77004
Re: Provider / My Client: Memorial Hermann
Patient / Your Client: Tyrell Rubio
MHHS Account No. 038011823-6215
Dates of Service: 08/03-08/04/2006
Dear Mike:
As you know, Memorial Hermann Hospital System (“Memorial Hermann”) has retained our
firm to protect its rights and interests under Texas law with regard to the above-referenced patient
account. Our client rendered necessary hospital services to Tyrell Rubio for injuries he sustained
in a motor vehicle accident on or about August 3, 2006. A Notice of Hospital Lien was recorded in
Harris County on January 12, 2007, and Memorial Hermann continues to seek additional
reimbursement on Mr. Rubio’s account.
The total charges for Mr, Rubio’s hospitalization and treatment at Memorial Hermann in
August 2006 were $31,176.50. Of that amount, United Healthcare (“UHC”) has paid $2,650.84 and
has designated $662.71 as Mr. Rubio’s patient responsibility portion. Memorial Hermann is
currently seeking additional reimbursement of $27,862.95 from UHC pursuant to the terms
of the managed care agreement between UHC and Memorial Hermann, which stipulates that
UHC is to pay 100% of Memorial Hermann’s billed charges for treatment provided to UHC
members necessitated by the negligence or fault of a third party. Memorial Hermann is also
seeking $662.71 directly from Mr. Rubio.
Please feet free to call again if you have any additional questions.
Ver incerely yours,
SUL . JOHNSTON, ROHRBACH & MAGERS
PLAINTIFF'S
EXHIBIT
Jared onson
HAWPDOCS99S\MHHS 2001 LIEN PROJECTWared Johnson Folder RU\Licn-Lit gethartLecter Rubioswp
2 no.
713.521.0221 @ Fax: 713.521.3242 2200 Phoenix Tower @ 3200 Southwest Freeway
wew.sjrm.com Houston, Texas 77027
Preview
“ 12 ~~ — |ENTERE! CAUSE NO. 2007-69136 ERIFIED TYRELL RUBIO § IN THE DISTRICT COURT OF Plaintiff § vs. § HARRIS COUNTY, TEXAS FARMERS INSURANCE EXCHANGE § Defendant § (SL supiciat oistrict PI LAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSUR E 1 Comes Now Plaintiff Tyrell Rubio, and files this Original Petition, and cs Request for Disclosure, complaining of Farmers Insurance Exchange, Detenda nf: and wo <) for causes of action would show this Court the following: Lo <| =72 = _ A. Discovery Control Plan _ OQ wo 2 The amount in controversy does not exceed $50,000.00. Thbrefore, this case will be controlled by Discovery Control Plan Level | pursuant to Texas Rule of Civil Procedure 190.2. B. Parties 3 Plaintiff Tyrell Rubio is an individual and resident of Harris County, Texas. 4 Defendant Farmers Insurance Exchange is a foreign corporation operating under the laws of the State of California. Defendant Farmers Insurance Exchange does business in Texas and breached a contract in Texas. Defendant Farmers Insurance Exchange maintains sufficient and systematic ongoing minimum contacts with Texas through its insurance business that assertion of personal jurisdiction over Farmers Insurance Exchange would not offend traditional notions of fair play and substantial justice. Defendant Farmers Insurance Exchange may be served with process by serving its registered agent for service of process, Ms. Beth Morse, 15700 Long Vista RECORDER'S MEMORANDUM is instrument is of poor quality _Althe time of imaging —a Drive, Austin TX 78728-3822. C. Venue and Jurisdiction 5 Venue is proper in Harris County, Texas because Plaintiff's cause of action accrued in Harris County, Texas. This Court has jurisdiction over the Defendant for the reasons stated in paragraph 4, supra.. This Court has jurisdiction over the controversy because the amount in controversy exceeds the minimum jurisdictional limits of this Court. D. Facts 6. Tyrell Rubio was badly injured in a truck-motorcycle accident on or about August 3, 2006. Mr. Rubio, was traveling northbound on Highway 59 in or around the 20,500 block, and was taking the Townsen Road exit. On the exit ramp, Mr. Rubio was driving his motorcycle reasonably and prudently in the left lane. Mr. Rubio holds a motorcycle license in the State of Texas. Defendant’s insured, Mr. Emmanual Abiona {a convicted criminal) was driving a white International box van on that exit ramp in the right lane. Mr. Abiona carelessly and negligently changed lanes to his left when unsafe, and crashed his truck into Mr. Rubio and his motorcycle, causing Mr. Rubio to be violently knocked down off of the motorcycle and to the pavement. The investigating officer cited Defendant's insured for making an unsafe lane change. The crash and fall to the pavement caused Mr. Rubio substantial bodily injury. 7 Mr. Rubio hired the undersigned counsel to represent him in his claims against Mr. Abiona and his insurer, Defendant Farmers Insurance Exchange. After lengthy negotiations, the parties agreed to settle Mr. Rubio’s claims in multiple parts for different categories of Mr. Rubio's damages. The first part of the settlement called for a oom payment of $104,336.00, which was comprised of $100,000.00 for Mr. Rubio’s “general” damages (pain and suffering, disfigurement, physical impairment, mental anguish), as well as for his past lost wages, $4336.00. Defendant paid the $104,336.00 on or about August 9, 2007 by check number 8371000226. A true and correct copy of the check is attached as Exhibit “A”. 8. At the same time, after an August 2, 2007 face to face meeting and negotiation session between Defendant's adjuster Jeff Richards and the undersigned counsel at counsel's office in Houston, Texas, the parties agreed to resolve the outstanding medical expenses as a separate part of the settlement. Defendant's adjuster, Mr. Richards, enunciated the parties’ agreement in writing via an August 3, 2007 e-mail following the face to face meeting as follows: We agree to pay the following: 1) 100,000 in general damages, 2) 4336 lost wages, 3) paid medical specials to be determined. The paid medical will include amounts paid by the health insurer, amounts paid my Mr. Rubio and any amount for which the hospital does not write off in exchange for the health insurer payment. Please keep me posted on resolution of the paid medical. The partial payment will include the general damages as well as the lost wages. Jeff Richards Phone 225-293-1204 Fax 225-293-4916 A true and correct copy of the August 3, 2007 e-mail is attached as Exhibit “B”. The parties were cognizant of the issues pertaining to Texas Civil Practice and Remedies Code section 41.0105, commonly referred to as the paid or incurred statute during their negotiations about settlement. The parties expressly stated how they would ascertain what medical expenses would be payable under the terms of the settlement agreement, - as demonstrated in the above-quoted e-mail. That is, Defendant agreed to pay the amounts actually paid out of Mr. Rubio’s pocket, the amounts his health insurer paid, AND Defendant agreed to pay those amounts not written off by the hospital (in this case, Memorial Hermann Hospital in Houston, Texas). 9 Subsequently, on or about October 1, 2007, Plaintiffs submitted detailed documentation of these medical special amounts to Defendant's adjuster, Mr. Richards. The medical specials totaled $43,451.64 in past medical billing. This total is strictly comprised of amounts falling within the agreement of the parties. That is, it is comprised of (1) co-pays actually paid by Plaintiff, (2) amounts paid by Plaintiff's health insurer, and (3) the largest amount is comprised of $28,525.66 owed to Memorial Hermann Hospital System. Memorial Hermann Hospital System's counsel brought to Plaintiff's counsel's attention a clause in its agreement with Plaintiff's health insurer, United Healthcare. That clause states the following: 3.6 Adverse Actions Caused by Third Parties: If Member receives services due to accidental or intentional injury caused by a third-party, Hospital may also file a hospital lien under the Texas Hospital Lien statute against the responsible third party to recover its full charge. A true and correct copy of the page of the agreement between United Healthcare and Memorial Hermann Hospital System is attached as Exhibit “C”. 10. This is a clause in the agreement between Memorial Hermann Hospital System and United Healthcare, Plaintiffs health insurer. It says that Memorial Hermann Hospital System can recover amounts payable by United Healthcare AND, in cases where a covered “member” (someone insured by United Healthcare) is injured due to an accident caused by some third-party, the hospital is not limited to recovering merely what United Healthcare pays, but may seek to recover 100% of its charge for its services. The clause certainly means that Memorial Hermann is not writing off a nickel of the amounts it billed for Plaintiff Tyrell Rubio's treatment after the accident. Therefore, that full amount is now due and owing to Plaintiff from Defendant Farmers Insurance Exchange pursuant to the express terms of the settlement agreement enunciated by Farmers’ adjuster in his August 3, 2007 e-mail. 11. Memorial Hermann Hospital System’s attorney has stated in correspondence that the full amount of $27,862.95, plus an additional $662.71 (as Mr. Rubio's co-pay) is due and owing and is not being written off and has not been paid by anyone at this point. A true and correct copy of this letter is attached as Exhibit “D”. Whether this is analyzed under case law interpreting section 41.0105 or the express terms of the settlement agreement between the parties to this case, or both, the full amount is now owed by Farmers Insurance Exchange to Plaintiff because it has been paid or incurred under any definition of those terms, and certainly under the definition employed by the parties to this case in the August 3, 2007 e-mail agreement. Plaintiff contends that the terms of the contract as enunciated by Defendant's adjuster control the disposition of this case. 12. It is very simple: Plaintiff will owe 100% of the Memorial Hermann Hospital System bill no matter what, and that is why it is paid or incurred. A If United Healthcare pays 100% of the outstanding bill, then Mr. Rubio will owe that money out of his settlement to United Healthcare under its subrogation agreement with Mr. Rubio in the —_— health insurance contract. If United Healthcare pays none of the outstanding amount, then Memorial Hermann will have the right to pursue the third-party who caused the accident and Farmers Insurance Exchange for 100% of the bill. They will, in turn, point to Mr. Rubio and say he has teleased and indemnified us and so you must collect from him. If United Healthcare pays some but not all of the bill, Mr. Rubio will owe United Healthcare what it has paid, and will owe the balance to Memorial Hermann under a release and indemnity agreement with the third-party and Farmers Insurance Exchange. Therefore, under no circumstances can it be said that 100% of the Memorial Hermann Hospital System bill has not been incurred by Mr. Rubio. It is likewise clear that Memorial Hermann Hospital System has not and will not write off any of its bill. 13. Finally, it is important to point out that Defendant's adjuster expressly stated on the telephone to Plaintiff's counsel on or about Thursday, October 26, 2007 that his calculation was that he would be writing a check for the medical specials under the August 3, 2007 e-mail agreement for over $42,000.00, which necessarily included 100% of the Memorial Hermann Hospital System bill. Only after the adjuster’s supervisor looked into the case did the adjuster's decision get reversed under what may only be charitably described as a dubious legal theory. 14. Defendant has failed and refused to pay the amount owed to Plaintiff, and is now in breach of its contract with Plaintiff. E. Causes of Action Breach of Contract 15. Defendant has breached its written contract with Plaintiff by failing and refusing to timely pay Plaintiff in full for the amounts owed for monies owed, as described above. Plaintiff has demanded payment from Defendant in writing on multiple occasions. Plaintiff is entitled to his actual damages under the contract from Defendant together with interest for which he now sues. 16. Further, Plaintiff has had to hire the undersigned attorney to pursue his claims against Defendant, and is entitled to a reasonable attorney's fee pursuant to Texas Civil Practice & Remedies Code section 38.001 et seq. 3. Conditions Precedent 17. Ail conditions precedent to recovery for Plaintiff have occurred or been satisfied. F. Damages 18. Defendant's conduct has caused Plaintiff to suffer economic damages in the amount of not less than $28,525.66, which is the full amount of the outstanding bills owed to Memorial Hermann Hospital System. In addition, Plaintiff is entitled to an award of prejudgment interest at the highest legal rate, as well as post-judgment interest at the highest legal rate, together with reasonable attorney’s fees for all pre-trial work, trials, post-(udgment motions and appeals, and costs of court. 19. WHEREFORE, premises considered, Plaintiff prays that Defendant be cited to appear and answer and that upon final trial, Plaintiff have and recover judgment from Defendant for his: 1 Actual damages; 2 Costs of court; Pre-judgment interest at the highest legal rate; Post-judgment interest at the highest legal rate; Reasonable attorney’s fees for all pre-trial work, trials, post-trial motions, and appeals; and All other relief to which Plaintiff may be entitled. G. Request for Disclosure 20. Plaintiff asks that Defendant provide responses to the Requests for Disclosure contained in Texas Rule of Civil Procedure 194.2(a) through (I). Respectfully submitted, ENGELHART & GREENWOOD, L.L.P. atl, by Michael C. Engelhart TBA No. 00793690 1300 McGowen Street Houston, Texas 77004 (713) 333-3200 telephone (713) 621-1449 telecopier www.midtownlegal.com ATTORNEY FOR PLAINTIFF 2m i gs 38 =z = io E 43 Os ie oo t oF Sus a cvo vio sis ON uN = you ox ut Oey gt Ld co BU @yuyn Dr 00 Ut 3o L290 wr £UOR a voou usu Hod 1Sbee con oO We x ve esc Gear X sg 3 wee 33 PLAINTIFF'S EXHIBIT "NO. A Gmail - cur meeting today http://mail.google.co ail/2ui=2&ik=f65a8 foeas &view=pt&cat=Ru... — I Gma wy Gorge eee ETA a Michael Engelhart a - our meeting today . jeff-richards@farmersinsurance.com Fri, Aug 3, 2007 at 7:07 PM To: mengelhart@midtownlegal.com Hi Mike We agree to pay the following: 1) 100,000 in general damages, 2) 4336 lost wages, 3) paid medical specials to be determined. The paid medical will include amounts paid by the health insurer, amounts paid my Mr. Rubio and any amount for which the hospital does not write off in exchange for the health insurer payment. Please keep me posted on resolution of the paid medical. The partial payment will include the general damages as well as the lost wages. Jeff Richards Phone 225-293-1204 Fax 225-293-4916 “Michael Engelhart" To: jeff.richards@farmersinsurance.com Subject: our meeting today Sent by: mengelhart0@gmail. com 08/02/2007 03:34 PM Please respond to mengelhart [Quoted text hidden] oe bese ss wom i wb ier lofi 11/8/2007 3:40 PM Memor mann Hospital System and Affiliates Houston, Texas Effective Date: February 1, 1999 payments for additional Outpatient Surgical or Scopic Procedures performed shall be made. SECTION 3 Miscellaneous Provisions 3.4 All-Inclusive Rates. All rates are all-inclusive unless specified otherwise in this Appendix. 3.2 Hospital-based Provider Charges. All charges for professional services provided by Hospital-based Providers are paid in addition to the payments set forth in this Appendix. Hospital will assist Plan in securing Participation Agreements with such Providers. : 3.3 Mental Health and/or Substance Abuse. Mental health and/or substance abuse services shail not be eligible for payment under this Agreement. 3.4 Exclusions: The following services and/or items are paid in addition to the =“ ents set forth in this Appendix and shail be paid for at a Payment Rate of orthotics/prosthetics (Revenue Code 274), implants (Revenue Codes 275- and TPA/TPN. (Revenue Code 252 or 259). Hospital shall assume responsibility for clearly identifying on each bill all services and/or items that are paid in addition to the payments set forth in this Appendix. 3.5 Inpatient Stop Loss Threshold. When Customary Char for Health Services rendered during a single Admission exceed Inpatient Stop Loss Threshold”), Hospital shall be paid a Payment Rate lieu of the Per Diem Payments set forth in section 2.2; provided, however the amount Hospital is paid for each day of that Admission shail not exceed $ For purposes of the Inpatient Stop Loss Threshold payment calculation , Per Case Payments for Cardiac and Transplant Procedures, as set forth in section 2.2, shall be excluded. This rovisio! applicable t morial Herman! and Memo. Hermann Children’s Hospital. single Admission exceed Hospital shall be paid a Payment aS When Customary Charges for trauma related Health Services rendered during a Inpatient Stop Loss Threshold”), Rate o' in lieu of the Per Diem Payments set forth in section 2.2. Trauma cases are defined as those billed under ICD-9 Diagnosis Codes: 800-809, 851-909 and 925-999. When Customary Charges for non-trauma tefated Health Services rendered during a single Admission exceed (‘inpatient Stop Loss 12N0/96 HSP.TX CONTRACTIMEMORIAL'AMEND#1‘aorne CONFIDENTIAL UHC 001394 Memot::z Hermann Hospital System and Affiliates Houston, Texas Effective Date: February 1, 1999 Threshold”), Hospital shail be paid a Payment Rate oj in lieu of the Per Diem Payments set forth in section 2.2; provided, hi ef that the amount Hospital is paid for each day of that Admission shall not exceed For purposes of the Inpatient Stop Loss Threshold payment calculation, Per Case Payments for Cardiac and Transplant Procedures, as set forth in section 2.2, shall be excluded. This_pro ly-apples only to Memorial applies visi to M Hermann on a and Memorial Hermann Children’s Hospitals. 3.6 Adverse Actions Caused by Third Parties. If Member receives services due to accidental cr intentional injury caused by a third party, Hospital may also file a hospital lien under the Texas Hospital Lien statute against the responsible third party to recover its full charges. ig ‘NO. CONFIDENTIAL 1210/96 HSP.TK 12/07/98 CONTRACTMEMORIALAMEND## UHC 001395 oeceegeagen tes cieveresteseeeteenraeesectcsictetereeeeseres ceseeatecsteeeeetesensesessssnsseeny weoi7eor Bae eee caee 09/10/2007 MON 15:18 FAX Suljias Johnston Sullins Johnston Rohrbach , :’é Magers Attorneys at Law P, te, wal Cerguracinn} JARED C. JOHNSON Direct Dist: 713.499.3114 E-s1att: Johnson@sjrm.com September 10, 2007 VIA FACSIMILE (713) 621-1449 Michael C. Engelhart, Attorney at Law ENGELHART & GREENWOOD, L.L.P. 1300 McGowen Street Houston, Texas 77004 Re: Provider / My Client: Memorial Hermann Patient / Your Client: Tyrell Rubio MHHS Account No. 038011823-6215 Dates of Service: 08/03-08/04/2006 Dear Mike: As you know, Memorial Hermann Hospital System (“Memorial Hermann”) has retained our firm to protect its rights and interests under Texas law with regard to the above-referenced patient account. Our client rendered necessary hospital services to Tyrell Rubio for injuries he sustained in a motor vehicle accident on or about August 3, 2006. A Notice of Hospital Lien was recorded in Harris County on January 12, 2007, and Memorial Hermann continues to seek additional reimbursement on Mr. Rubio’s account. The total charges for Mr, Rubio’s hospitalization and treatment at Memorial Hermann in August 2006 were $31,176.50. Of that amount, United Healthcare (“UHC”) has paid $2,650.84 and has designated $662.71 as Mr. Rubio’s patient responsibility portion. Memorial Hermann is currently seeking additional reimbursement of $27,862.95 from UHC pursuant to the terms of the managed care agreement between UHC and Memorial Hermann, which stipulates that UHC is to pay 100% of Memorial Hermann’s billed charges for treatment provided to UHC members necessitated by the negligence or fault of a third party. Memorial Hermann is also seeking $662.71 directly from Mr. Rubio. Please feet free to call again if you have any additional questions. Ver incerely yours, SUL . JOHNSTON, ROHRBACH & MAGERS PLAINTIFF'S EXHIBIT Jared onson HAWPDOCS99S\MHHS 2001 LIEN PROJECTWared Johnson Folder RU\Licn-Lit gethartLecter Rubioswp 2 no. 713.521.0221 @ Fax: 713.521.3242 2200 Phoenix Tower @ 3200 Southwest Freeway wew.sjrm.com Houston, Texas 77027