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

MATHEWS v. INDEMNITY INSURANCE CO. OF NORTH AMERICA Plaintiff's Original Petitioin & Jury Demand

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.

Embedded Scribd iPaper - Requires Javascript and Flash Player
CAUSE NO. JAMES MATHEWS, Plaintiff
0-1-GN-1 0-003685
§ § § § § § § PETITION
IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS
419TH
Filed 10 october 14 P3:07 Amalia Rodriguez-Mendoza District CIeri< Travis District D-1-GN-10-003685
V.
INDEMNNITY INSURANCE COMPANY OF NORTH AMERICA, Defendant PLAINTIFF'S ORIGINAL
JUDICIAL DISTRICT
& JURY DEMAND
TO OUR HONORABLE JUDGE & JURY OF TRAVIS COUNTY CITIZENS: 1. Plaintiff James Mathews ("Me. Mathews") files this petition against Defendant INDEMNITY and would respectfully show
INSURANCE COMPANY OF NORTH AMERICA ("Defendant") the following: I. Discovery Conh'ol Plan 2. 190. II. Parties 3. 4. Mr. Mathews is a resident and citizen of Travis County, Texas. Defendant, INDEMNITY INSURANCE COMPANY
Mr. Mathews intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure
OF NORTH
AMERICA,
is a
corporation operated for the purpose of accumulating monetary profit, and it may be served with service of process upon its registered agent for service, Robin M. Mountain, or successor, 6600 Campus Circle Drive East Suite 300, Irving, Texas 75063. III. Venue & Jm'isdiction 5. Venue is proper in Travis County under Tex. Civ. Prac. & Rem. Code Section 15.002(a)(1),
as a substantial part of the events or omissions giving rise to this claim occurred in Travis County. In addition, the insurance policy at issue and of which Me. Mathews is a beneficiary was sold to his employer, in and to be performed in Travis County, Texas, and the losses under the policy Original Petition James Mathews
1
~
~
(including payments to be made for the benefit of Mr. Mathews for care to be rendered in Travis County) were required to be made in Travis County, Texas. Further, investigation, communications to and from Defendant and Mr. Mathews' including
healthcare providers, occurred in
Travis County Texas. 6. Mr. Mathews sues for damages in excess of $125,000, and jurisdiction is proper in this
Court. IV. Factual Backg.·ound 7. This suit is necessary to collect a legal debt and damages due and owing Mr. Mathews
because of Defendant's wrongful acts in handling of his claim for an on the job injury for which workers' compensation benefits were disputed and later paid only after on order of the Texas Department of Insurance-Division 8. of Workers' Compensation, DWC.
Mr. Mathews, a loyal and hardworking employee of Midwestern Services Inc., was injured
while working on the job on October 14, 2008. 9. Rather than properly investigate Mr. Mathews' injuries to ensure Mr. Mathews would receive of the workers'
the income and other benefits to which he was entitled as a beneficiary
compensation promised to the employees of Midwestern Services Inc., without reasonable basis, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA INSURANCE chose to continue to deny COMPANY OF NORTH
timely payment of insurance benefits. INDEMNITY
AMERICA filed a denial of benefits on October 30,2008 in a DWC Form PLN-l Notice of Denial of Compensability/Liability and Refusal to Pay Benefits, dated October 30, 2008. As a result, Mr. compensation
Mathews was forced to hire and pay a lawyer to help his secure the workers'
benefits to which he was entitled. After proceeding through all the necessary administrative proceedings before the Texas Department of Insurance-Division Original Petition James Mathews of Workers' Compensation, Mr.
2
~-:.
Case 1:11-cv-00228-SS Document 1-1
Filed 03/24/11 Page 5 of 28
Mathews
was able to secure a binding final determination
from the Texas Department
of
Insurance, Division of Workers' Compensation, ordering payment of the long overdue benefits through the Contested Case Hearing Decision and Order, signed September 2, 2009 and filed September 3, 2009. 10. Unfortunately, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S delay
and imposition
of severe economic distress and delayed medical treatment had reasonably
anticipated consequences on Mr. Mathews from which he is still fighting to recover. Given the repeated delays of payment for his necessary income and other benefits, Mr. Mathews has been subjected to significant economic impact, worry, distress, and continuing economic and physical damage. In addition, Mr. Mathews has suffered financial harm and damage to his credit as a result of INDEMNITY delays. 11. The significant effect of Defendant's wrongful and unjustified delay is still uncompensated. V. FIRST CAUSE OF ACTION--Violations 12. Plaintiff JAMES MATHEWS realleges of Texas Insurance Code contained in INSURANCE COMPANY OF NORTH AMERICA'S denial and repeated
and incorporates
each allegation
Paragraphs 1--15 of this Petition as if fully set forth herein. 13. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to attempt to
effectuate a prompt, fair, and equitable settlement of a claim with respect to which liability has become reasonably clear, in violation of Texas Insurance Code Section 541.060 (a)(2)(A)
(formerly Art. 21.21 §4(l0)(ii». 14. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to adopt and
implement reasonable standards for prompt investigation of claims arising under its policies. 15. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to provide
Original Petition James Mathews
Case 1:11-cv-00228-SS Document 1-1
Filed 03/24/11 Page 6 of 28
promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of a claim, in violation §4( 10)(iv)). 16. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA refused to pay a claim of Texas Insurance Code Section 541.060 (a)(3) (formerly Art. 21.21
without conducting a reasonable investigation with respect to the claim, in violation of Texas Insurance Code Section 54l.060(a)(7) (formerly Art. 2l.21 §4(10)(vii)). 17. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented the
insurance policy under which it affords workers' compensation
coverage to Mr. Mathews, by Code Section
making an untrue statement of material fact, in violation of Texas Insurance 541.061 (l)(formerly 18. INDEMNITY Art. 2l.21 §4(11)(a». INSURANCE COMPANY OF NORTH AMERICA
misrepresented
the
insurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICA affords workers' compensation coverage to Mr. Mathews, by failing to state a material fact that is necessary to make other statements made not misleading, in violation of Texas Insurance Code Section 541.061(2) (formerly Art. 21.21 §4(1l)(b)). 19. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented the
insurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICA affords workers' compensation coverage to Mr. Mathews, by making a statement in such manner as to mislead a reasonably prudent person to a false conclusion of material fact, and failing to disclose a matter required by law to be disclosed, in violation of Texas Insurance Code Section 541.061(3) (formerly Art. 21.21 §4(11)(c) and Texas Insurance Code Section 541.002(1) (formerly Art. 21.21 §4(11)(e)). 20. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA knowingly committed the 4
Original Petition James Mathews
Case 1:11-cv-00228-SS Document 1-1
Filed 03/24/11 Page 7 of 28
foregoing acts, with actual knowledge of the falsity, unfairness, or deception of the foregoing acts and practices, in violation of Texas Insurance Code Section 54l.002(1) §2(c)). VI. SECOND CAUSE OF ACTION-Breach 2l. of Duty of Good Faith & Fair Dealing (formerly Art. 2l.21
Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--20 of the
Petition as if fully set forth herein. 22. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as Mr. Mathews'
workers' compensation insurer, had a duty to deal fairly and in good faith with Mr. Mathews in the processing of the workers' compensation claim. INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA breached this duty by refusing to properly investigate and effectively denying necessary income and other benefits. INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA knew or should have known that there was no reasonable basis for denying or delaying the required benefits. As a result of INDEMNITY AMERICA'S INSURANCE COMPANY OF NORTH
breach of these legal duties, Mr. Mathews
suffered legal damages including
damages pursuant to Texas Labor Code Section 416.002. VII.THIRD CAUSE OF ACTION-Punitive 23. Damages for Bad Faith
Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--22 of this
Petition as iffully set for herein. 24. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA acted fraudulently and claim for workers'
with malice (as that term is legally defined) in denying Mr. Mathews' compensation benefits. Defendant's time of its occurrence
conduct when viewed objectively from its standpoint at the
involved an extreme degree of risk to Mr. Mathews, considering the
probability and magnitude of the potential harm to Mr. Mathews. Further, Defendant had actual, Original Petition James Mathews 5
Case 1:11-cv-00228-SS Document 1-1
Filed 03/24/11 Page 8 of 28
subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare ofMr. Mathews. VIII. FOURTH CAUSE OF ACTION-Violations 25. of Texas DTPA
Plaintiff Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--
24 of this Complaint as if fully set forth herein. 26. The Deceptive Trade Practices Consumer Protection Act (DTPA) provides additional
protections to consumers who are victims of deceptive, improper, or illegal practices. Defendant's violations of the Texas Insurance Code create a cause of action under the DTPA Defendant's violations of the Texas Insurance Code, as set forth herein, specifically violate the DTPA as well. IX. RESULTING 27. LEGAL DAMAGES violations of
Mr. Mathews is entitled to the actual damages resulting from the Defendant's
the law. These damages include the consequential
damages to his economic welfare from the
wrongful denial and delay of benefits; the mental anguish and physical suffering resulting from this wrongful denial of benefits, and continued impact on the medical evaluation, treatment, and final prognosis; and the other actual damages permitted by law. In addition, Mr. Mathews is entitled to exemplary damages including but not limited to Texas Labor Code Section 416.002. 28. As a result of Defendant's acts and/or omissions, Plaintiff has sustained damages in excess of
the minimum jurisdictional limits of this Court. 29. rate. 30. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S knowing violations of Plaintiff is entitled under law to the recovery of prejudgment interest at the maximum legal
the DTPA entitle Mr. Mathews to the attorneys' fees, treble damages, quadruple damages under Section 416.002, above, and other penalties provided by law. Original Petition James Mathews
6
Case 1:11-cv-00228-SS Document 1-1
Filed 03/24/11 Page 9 of 28
PRAYER 31. WHEREFORE, PREMISES CONSIDERED, Plaintiff, James Mathews, respectfully prays
and requests that Plaintiff have judgment against Defendant for actual damages in excess of the minimum jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowed
by law, costs of suit, and all other relief, at law or in equity, to which JAMES MATHEWS may be entitled. Respectfully submitted,
/'~
J
/1/1,/!;1
/'jlL
L-/~
,1.tl
RODRIGUEZ-MENDOZA, District Clerk, Travis County, Texas, do hereby ceriify thatthis is a true and correct copy assame appears of record in my office.Witness r:J. hand and seal of office on -3 ' J . AMALIA RODRIGUEZ-MENDOZA DISTRICT CLERK
I, AMALIA
BRADLEY DEAN McCLELLAN Of Counsel, Law Offices of Richard Pena, P. C. State Bar No. 13395980 1701 Directors Blvd. Suite 110 Austin, Texas 78744 (512) 327-6884 telephone (512) 327-8354 facsimile Brad.McClellan@yahoo.com Attorney for James Mathews. Plaintiff
Original Petition James Mathews
7

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
Mathews v Indemnity Insurance Co. Plaintiff's Original Petitioin & Jury Demand.pdf3.96 MB

Like us on facebook!