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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

MUSGROVE v. ACE AMERICAN INSURANCE COMPANY et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
1:13-cv-00104 Search Pacer
ACE Group party(s): 
Opposing Party: 
Burl V. Musgrove
Court Type: 
Federal
US District Court: 
Southern District of Alabama
Date Filed: 
Mar 1 2013

"FIRST AMENDED COMPLAINT COMES NOW, the Plaintiff, BURL V. MUSGROVE, by and through his attorney, ROBERT D. "BO" KEAHEY JR., and pursuant to the Alabama Rules of Civil Procedure, files this amendment to the Complaint to add, ACE AMERICAN INSURANCE COMPANY, ESIS, INC., CHRIS PETERS, individually and within the line and scope of his employment for ACE American Insurance Company and ESIS, Inc., and KEVIN BYRD, individually and within the line and scope of his employment with the Defendant KELLOGG BROWN & ROOT LLC, as Defendants, and to add counts two, three, four, five and six.

1. The Plaintiff adopts and incorporates by reference the allegations set forth in the Original Complaint as if set forth herein.

2. The Defendant, ACE AMERICAN INSURANCE COMPANY (hereinafter "ACE"), is a foreign company, operating under the laws of the State of Alabama, and at all times material hereto was doing business in Washington County, Alabama.

3. The Defendant, ESIS, INC. (hereinafter "ESIS"), is a foreign corporation, operating under the laws of the State of Alabama, and at all times material hereto was doing business in Washington County, Alabama.

4. The Defendant, CHRIS PETERS (hereinafter "Peters"), is upon information and belief an individual over the age of nineteen (19) years and at all times material hereto was doing business as an agent, employee and/or representative for the Defendants, ACE and ESIS, in Washington County, Alabama.

5. The Defendant, KEVIN BYRD (hereinafter "Byrd"), is upon information and belief a resident of the State of Texas and over the age of nineteen (19) years and at all times material hereto was doing business as an agent, employee and/or representative for the Defendant, KBR, in Washington County, Alabama.

6. Fictitious Defendants "A", "B" and "C" are those persons, firms, corporations or other entities who or which are otherwise liable to the Plaintiff by reason of their acts, fraud, and/or other wrongful conduct which is more specifically stated below, and whose identities are not known at the present time, but will be substituted by amendment when ascertained.

STATEMENT QF FACTS

7. That on or about on April 10, 2012, the Plaintiff while working within the line and scope of his employment while in Washington County, Alabama, the Plaintiff received injuries arising out of and in the course of his employment with the Defendant, Kellogg Brown & Root LLC (hereinafter "KBR"), namely injuries to his right leg and foot and was otherwise injured.

8. That on or about April 11, 2012, the Plaintiff was taken to Northside Clinic in Saraland, Alabama for treatment regarding his injuries. The Defendant Byrd was present during this treatment and subsequently gave authorization for the Plaintiff to see Dr. Busbee at The Orthopaedic Group in Mobile, Alabama. Dr. Valentine's Clinic Note states that the injury occurred on the job while stepping up and the patient (ie. Plaintiff), is going to be referred to orthopaedic.

9. The Plaintiff was then seen the same afternoon of April 11, 2012, by Dr. Busbee, as earlier recommended by Dr. Valentine. The Defendant Byrd was also present during the initial treatment by Dr. Busbee. Dr. Busbee specifically informed Defendant Byrd that this was a workers' compensation injury. Additionally, Dr. Busbee's office note states that it is his medical opinion that the Plaintiffs injury is work related. Dr. Busbee also filled out a medical request form so that the Plaintiff could receive his short-term disability payments in which he also stated that this was a work related injury.

10. Even in light of the clear and undisputed stated medical opinions of Dr. Valentine and Dr. Busbee the Defendants intentionally, fraudulently, and wrongfully conspired to deny the Plaintiff his medical treatment and workers compensation benefits as he is entitled to under Alabama law. In fact, on April 23, 2012, Defendant Peters wrote a letter to the Plaintiff fraudulently stating that the incident is not compensable under Alabama law.

11. As a result of the intentionally fraudulent and wrongful denial of the Plaintiffs workers compensation claim the Plaintiff was required to seek medical treatment under his own personal insurance which he had paid for through his employment.

12. On or about September 28, 2012, the Plaintiff was released back to work with the Defendant but restricted by Dr. Busbee from climbing on any ladders. However, the Defendant KBR would not allow the Plaintiff to return to work unless he had no restrictions. In light of the Defendants demand the Plaintiff requested that Dr. Busbee remove the ladder climbing restriction. The restriction was then removed and the Plaintiff returned to work on or about October 8, 2012.

13. During the second week of December the Plaintiff was informed that he was being terminated. Just two weeks prior to the Defendant KBR terminating the Plaintiffs employment the Defendant had hired a new pipe welder named Allen Webb who continues to be employed by the Defendant. The Plaintiff was previously employed with the Defendant as a pipe welder.

14. On or about October 15, 2012, the Plaintiff's wife, Leathie Musgrove, fell and broke her leg in three places which required extensive surgery and treatment and will continue to require extensive medical treatment.

15. As a result of the wrongful termination of the Plaintiff and the wrongful denial of his workers compensation claim the Plaintiff and his wife have no medical insurance coverage for which to cover their necessary medical treatment and cannot afford to purchase the same due to the Defendants wrongful termination of his employment and the fraudulent denial of his workers compensation claim.

COUNT II
(Tort of Outrage)

16. The Plaintiff incorporates herein by reference the allegations of the above Paragraphs as if set forth herein.

17. The Plaintiff was injured on April 10, 2012, while working within the line and scope of his employment with the Defendant, KBR, and received injuries arising out of and in the course of his employment with the Defendant, namely injuries to his right leg and foot.

18. The Plaintiff timely provided notice to the Defendant and the Defendant has admitted to the same in its Answer.

19. Following the Plaintiff's injury the Defendants and fictitious parties refused to pay for Mr. Musgrove's medical treatment, refused to provide him with medical benefits required by statute, refused to pay him temporary total disability benefits pursuant to the workers' compensation statutes and otherwise wrongfully denied his claim for workers' compensation benefits.

20. Beginning on or about April 10, 2012 and continuing through the date of filing of this Amended Complaint, the Defendants and fictitious parties intentionally caused Plaintiff to suffer emotional distress by refusing to pay for and refusing to provide him with proper medical treatment, refusing to pay him temporary total disability benefits, and otherwise denying his claim for workers' compensation benefits.

21. On or about April 23, 2012, the Defendant Peters wrote a letter to Mr. Musgrove stating that, "We have been unable to establish this alleged incident as being compensable based upon the Alabama Worker's Compensation Statutes." Defendant Peters made this intentionally fraudulent representation to the Plaintiff even after he was aware of both Dr. Busbee's medical opinion and Dr. Valentine's medical opinion that this was a work related accident which is compensable under Alabama's Worker's Compensation Statutes. Defendant Byrd was also aware of both Doctors' opinions at the time of the intentionally wrongful denial of the Plaintiff's claim.

22. The Defendants at the time of the denial of the claim also had before it the "Employers First Report of Injury". This report included the following question and answer: WHAT THING DIRECTLY PRODUCED THIS INJURY OR ILLNESS? Stepping up about 9" into a valve house.

23. Even in light of the Employers First Report of Injury and the two opinions of the authorized physicians the Defendants have defended the initial Complaint on the basis that the Plaintiff had a preexisting condition or that his injury is idiopathic in nature and does not arise out of his employment. The Defendant's have alleged these frivolous defenses without any evidence and in direct contradiction to the medical opinion of Dr. Busbee and Dr. Valentine and in direct contradiction to the Employers own admission. Furthermore, the Plaintiff testified at his deposition on December 7, 2012, that he was treated by both Dr. Valentine and Dr. Busbee and that both expressed the opinion that this was a work-related injury along with the Plaintiff's opinion that his employment activity contributed to his injury.

24. Alabama Code § 25-5-77(a) requires that the Defendants are mandated to pay for reasonable and necessary medical treatment relating to an admittedly compensable claim. However, the Defendants have intentionally and maliciously refused to do so as required by this statute.

25. The actions of each of these Defendants in handling the Plaintiffs claim have been designed and were intended to force him to settle his workers' compensation claim for less than its value and to defraud him of medical, vocational, and disability benefits outright.

26. The Defendants' actions toward the Plaintiff are so outrageous in character, and so extreme in degree as to go beyond all possible bounds or decency, and are atrocious and utterly intolerable in a civilized society.

27. The emotional distress the Defendants caused Plaintiff to suffer is so severe that no reasonable person could be expected to endure it.

28. As a consequence of Defendants' outrageous conduct, the Plaintiff has suffered as follows: he has experienced emotional distress to the extent that he has had to endure pain and suffering beyond what would be expected from his on-the-job injury due to his inability to obtain proper medical care; he has incurred medical bills and will continue to do so; he has incurred medical bills which he is unable to pay; his income has been completely cut off, his wife cannot obtain necessary medical treatment and he has been rendered destitute by the Defendants.

29. Plaintiff claims punitive damages of the Defendants as the Defendants have engaged in a pattern and practice of outrageous conduct. The Defendants have specifically been fined on more than one occasion by the State of Texas for wrongfully denying workers compensation claimants their benefits.
WHEREFORE, PREMISES CONSIDERED, the Plaintiff, demands a judgment against each Defendant, KELLOGG BROWN & ROOT LLC, ACE AMERICAN INSURANCE COMPANY, ESIS, INC., CHRIS PETERS, KEVIN BYRD, and Fictitious Party Defendants "A", "B", and "C" in an amount of both compensatory and punitive damages as a jury deems reasonable and may award, plus interest and cost of this action.

COUNT III
(Retaliatory Discharge)

30. The Plaintiff incorporates herein by reference the allegations of the above Paragraphs as if set forth herein.

31. The Plaintiff did institute, maintain and put on notice the Defendant KBR of his intention to recover workers compensation benefits. Subsequently, on or about December 10, 2012, the Defendant KBR did unlawfully and in violation of Ala. Code 25-5-11.1, terminate the Plaintiff from his employment.

32. After the Plaintiff notified the employer of his injury the Defendant KBR hired a new pipe welder and subsequently terminated the Plaintiff who was also a pipe welder.

33. The Defendant KBR stated that the termination was due to a "reduction in force" even though they had just hired a new employee to do the exact same work duties as the Plaintiff.

34. As a proximate result of the Defendant's wrongful termination and retaliatory discharge, the Plaintiff has been caused to suffer the following injuries and damages: he was caused both mental and physical anguish and will continue to suffer mental and physical anguish in the future; he has lost time and wages from his employment; he has past medical bills; he will have future medical bills; he has no health insurance; and will suffer future lost wages.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff, demands a judgment against the Defendant, KELLOGG BROWN & ROOT LLC, in an amount of both compensatory and punitive damages as a jury deems reasonable and may award, plus interest and cost of this action.

COUNT IV
(Conspiracy)

35. The Plaintiff incorporates herein by reference the allegations of the above Paragraphs as if set forth herein.

36. Defendants and fictitious parties conspired, combined, and federated to intentionally deny the Plaintiff his workers' compensation benefits, including but not limited to necessary medical treatment and disability benefits.

37. As a proximate result of said intentional conspiracy, the Plaintiff has suffered damages, including but not limited to the following: he has experienced emotional distress to the extent that he has had to endure pain and suffering beyond what would be expected from his on the-job injury due to his inability to obtain proper medical care; he has incurred medical bills and will continue to do so; he has incurred medical bills which he is unable to pay; his income has been completely cut off, and he has been rendered destitute by the Defendants.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff, demands a judgment against each Defendant, KELLOGG BROWN & ROOT LLC, ACE AMERICAN INSURANCE COMPANY, ESIS, INC., CHRIS PETERS, KEVIN BYRD, and Fictitious Party Defendants "A", "B", and "C" in an amount of both compensatory and punitive damages as a jury deems reasonable and may award, plus interest and cost of this action.

COUNT V
(Fraud)

38. The Plaintiff incorporates herein by reference the allegations of the above Paragraphs as if set forth herein.

39. Defendants and fictitious parties represented to the Plaintiff that his workers compensation claim was not compensable under Alabama law.

40. Said representations were false, and Defendants knew said representations were false, and were made with the intention that Plaintiff rely on said representations.

41. As a proximate result of said fraudulent misrepresentations, Plaintiff, has suffered damages, including but not limited to the following: the Plaintiff has suffered damages, including but not limited to the following: he has experienced emotional distress to the extent that he has had to endure pain and suffering beyond what would be expected from his on-the-job injury due to his inability to obtain proper medical care; he has incurred medical bills and will continue to do so; he has incurred medical bills which he is unable to pay; his income has been completely cut off, and he has been rendered destitute by the Defendants.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff, demands a judgment against each Defendant, KELLOGG BROWN & ROOT LLC, ACE AMERICAN INSURANCE
COMPANY, ESIS, INC., CHRIS PETERS, KEVIN BYRD, and Fictitious Party Defendants "A", "B", and "C" in an amount of both compensatory and punitive damages as a jury deems reasonable and may award, plus interest and cost of this action.

COUNT VI
(Abuse of Process)

42. The Plaintiff incorporates herein by reference the allegations of the above Paragraphs as if set forth herein.

43. On or about April 23, 2012, the Defendants began using the workers compensation claim process in an abusive, intentional and malicious manner for the purpose of preventing the Plaintiff from obtaining necessary medical treatment and disability benefits as he is entitled to under Alabama law.

44. As a proximate cause of the Defendants said abuse of process, the Plaintiff has suffered damages, including but not limited to the following: he has experienced emotional distress to the extent that he has had to endure pain and suffering beyond what would be expected from his on-the-job injury due to his inability to obtain proper medical care; he has incurred medical wills and will continue to do so; he has incurred medical bills which he is unable to pay; his income has been completely cut off, and he has been rendered destitute by the Defendants.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff, demands a judgment against each Defendant, KELLOGG BROWN & ROOT LLC, ACE AMERICAN INSURANCE COMPANY, ESIS, INC., CHRIS PETERS, KEVIN BYRD, and Fictitious Party Defendants "A", "B", and "C" in an amount of both compensatory and punitive damages as a jury deems reasonable and may award, plus interest and cost of this action."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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