TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00309-CV
The United Healthcare Choice Plus Plan for City of Austin Employees
and The City of Austin, Appellants
v.
Charles Lesniak, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-15-000067, HONORABLE GARY HARGER, JUDGE PRESIDING
MEMORANDUM OPINION
In this interlocutory appeal, appellants the City of Austin and its self-funded employee
health-insurance plan (the United Healthcare Choice Plus Plan for City of Austin Employees)
challenge the trial court’s order denying their plea to the jurisdiction asserting governmental
immunity. The underlying controversy concerns the Plan’s denial of health-care benefits to City
employee Charles Lesniak for treatment received by his daughter, a dependent covered under the
Plan. Lesniak sued the City and the Plan, alleging that they improperly denied some of his claims
for his daughter’s treatment, and appellants filed a plea to the jurisdiction. Because we conclude that
the City and the Plan have governmental immunity from this suit, we reverse the trial court’s order
denying appellants’ plea to the jurisdiction and render judgment dismissing appellee’s claims for
lack of subject-matter jurisdiction.
BACKGROUND
The City established a self-funded insurance plan (the Plan) to provide medical
benefits to its eligible employees and contracted with United HealthCare Services, Inc. (United
HealthCare) to administer the Plan. See Tex. Gov’t Code § 2259.031 (governmental unit may establish
self-insurance fund to protect governmental unit and its officers, employees, and agents from any
insurable risk or hazard). Lesniak’s pleadings alleged that (1) he was a covered employee under
the Plan, (2) his daughter was a covered dependent under the Plan, and (3) he made required
contributions to the Plan in consideration of the coverage that it provided. He further alleged that
the Plan wrongfully denied benefits for a portion of his daughter’s treatment at an inpatient facility,
determining that the treatment was not medically necessary. He filed a lawsuit against the City and
the Plan, alleging that they had thereby breached the contract of coverage. The City and the Plan
jointly filed a plea to the jurisdiction, asserting that Lesniak’s suit was barred by governmental
immunity and attaching to their plea copies of the “Summary Master Benefit Plan Documents”
(Plan Documents) that Lesniak alleged they had breached. The trial court denied the plea, and the
City and the Plan filed this interlocutory appeal of that denial. See Tex. Civ. Prac. & Rem. Code
§ 51.014 (a)(8) (person may appeal from interlocutory order of district court that grants or denies
plea to jurisdiction by governmental unit).
DISCUSSION
Appellants argue that they are immune from suit absent legislative waiver. See
Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint
Self-Ins. Fund, 212 S.W.3d 320, 325-26 (Tex. 2006) (political subdivisions of State, including cities
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and their self-insurance funds, enjoy governmental immunity from suit absent waiver). Lesniak
responds that appellants have no governmental immunity because this case arises out of the
City’s proprietary function, rather than its governmental function. See Bailey v. City of Austin, 972
S.W.2d 180, 192-93 (Tex. App.—Austin 1998, pet. denied) (municipality performing proprietary,
rather than public function, does not have governmental immunity). Alternatively, he asserts that
if the City has governmental immunity, that immunity has been waived by statute. See Tex. Loc.
Gov’t Code § 271.152 (waiving sovereign immunity for breach-of-contract claims “subject to the
terms and conditions of this subchapter”). Governmental immunity from suit deprives a court of
subject-matter jurisdiction and therefore is properly asserted in a plea to the jurisdiction. State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Whether a trial court has subject-matter jurisdiction is a
question of law that we review de novo, and in doing so we will not look at the merits of the case
but will construe the pleadings in favor of the plaintiff, accepting the factual allegations therein as
true. Lukes v. Employees Ret. Sys. of Tex., 59 S.W.3d 838, 841 (Tex. App.—Austin 2001, no pet.).
“Proprietary function” as bar to immunity
The Bailey opinion on which Lesniak relies to support his argument that the City’s
self-insurance plan is a proprietary function and therefore defeats the City’s entitlement to immunity
predates amendments to the Government Code specifically stating that “[t]he establishment and
maintenance of a self-insurance program by a governmental unit is not a waiver of immunity or of
a defense of the governmental unit or its employees,” Tex. Gov’t Code § 2259.002 (emphasis
added), and that “[t]he issuance of a public security or the use of available money for a self-insurance
fund under this subchapter is a public purpose of the governmental unit,” id. § 2259.032; see
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Ben Bolt-Palito, 212 S.W.3d at 327 (noting Chapter 2259 amendments and concluding that
self-insurance fund composed of local political subdivisions was performing governmental function
and entitled to assert immunity against fund member school district’s coverage claim and enjoyed
same governmental immunity as other political subdivisions, absent waiver); Humana Ins. Co. v.
Mueller, No. 04-14-00752-CV, 2015 WL 1938657, at *3 (Tex. App.—San Antonio Apr. 29, 2015,
pet. filed) (mem. op.) (Chapter 2259 applies to governmental unit’s establishment of self-insurance
fund, including provision thereunder that such establishment “is not a waiver of immunity”). In
light of Government Code Chapter 2259’s pronouncement that the provision of self-insurance funds
is a governmental function that does not waive immunity and the Ben Bolt-Palito holding, we
conclude that the proprietary–public dichotomy is no longer dispositive in the context of self-
insurance plans offered by municipalities and that appellants are immune from Lesniak’s lawsuit
absent legislative waiver.
Waiver of immunity under Local Government Code
We therefore consider Lesniak’s second argument: that the City waived its immunity
under Local Government Code Chapter 271 by entering into a contract for the provision of services.
See Tex. Loc. Gov’t Code § 271.151 (“contract subject to this subchapter” means “a written contract
stating the essential terms of the agreement for providing goods or services to the local governmental
entity that is properly executed on behalf of the local governmental entity”), .152 (“A local
governmental entity that is authorized by statute or the constitution to enter into a contract and that
enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose
of adjudicating a claim for breach of the contract, subject to the terms and conditions of this
4
subchapter.”); see Ben Bolt-Palito, 212 S.W.3d at 327 (“While the mere act of self-insuring does not
itself constitute a waiver of immunity . . . entering into ‘a written contract stating the essential terms
of [an] agreement for providing goods or [insurance] services to [a] local governmental entity’
clearly does.”).
Appellants respond that the waiver for Chapter 271 contracts does not apply here
because Lesniak does not provide any services to the City directly pursuant to the Plan. Lesniak
counters that (1) he provides services to the City in the form of his employment, (2) the Plan
provides services to the City in the form of the medical benefits it provides to City employees and
their dependents, and (3) United HealthCare provides services to the City in the form of its
administration of the Plan, including its making of benefit-eligibility determinations. We agree
with Lesniak that all of these may well qualify as “services” under the supreme court’s broad
interpretation of that term with respect to contracts subject to Chapter 271. See Kirby Lake Dev.,
Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010) (term “services” in Chapter
271 is “broad enough to encompass a wide array of activities,” and services provided need not be
primary purpose of agreement); Ben Bolt-Palito, 212 S.W.3d at 327 (holding that self-insurance
fund’s members provide services to fund by virtue of fact that they elect fund’s governing board,
which appoints subcommittee that resolves claims disputes).
However, the waiver in Chapter 271 is not applicable any time a person makes a
claim related to the provision of any services by any party to a local governmental entity. Rather,
the waiver of immunity from suit explicitly applies only when a plaintiff with standing claims that
a party has breached a particular kind of contract: one that “stat[es] the essential terms of [an]
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agreement for providing goods or services to the local governmental entity that is properly executed
on behalf of the local governmental entity.” See Lubbock Cnty. Water Control & Imp. Dist. v.
Church & Akin, L.L.C., 442 S.W.3d 297, 301-02 (Tex. 2014) (courts must look beyond title of
written contract to determine whether it (1) contains agreement to provide services to governmental
entity and (2) states essential terms of agreement for provision of such services). The “contracts”
under which Lesniak sues the City and Plan for breach are the 2013 and 2014 Plan Documents,
which outline the coverage that the Plan provides. The Plan Documents state their purpose: “to set
forth provisions of the Plan that provide and/or affect payment or reimbursement.” They also recite
that (1) the “City has contracted with [United HealthCare], a private healthcare claims administrator,
to administer this Plan and process the payment or reimbursement of specified expenses incurred by
eligible Covered Persons” and (2) the “Plan [Documents] and the applications of the Covered
Persons, if any, constitute the entire contract of Coverage under the Plan between the City, the
Plan Administrator, and the Covered Persons.”
Nonetheless, the Plan Documents cannot reasonably be construed as (1) containing
an agreement by any party to provide services to the City and (2) stating the “essential terms” of
such agreement. See id., 442 S.W.3d at 302 (holding that because marina lease under which lessee
sued lessor water district for breach of contract neither required lessee to provide marina-operation
services to lessor nor lessor to pay for such services, Chapter 271 did not waive lessor’s immunity).
To begin with, the Plan Documents do not recite any consideration on the City’s part in exchange
for the administrative services that United HealthCare is to provide—an essential term of any
agreement for services. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 235 (Tex. 2003)
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(consideration is essential element for valid, enforceable contract); Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 496 (Tex. 1991) (consideration is bargained-for exchange of promises);
see also Kirby Lake Dev., 320 S.W.3d at 838-39 (essential terms of contract typically include time
of performance, price to be paid, and service to be rendered); Fort Worth Indep. Sch. Dist. v. City of
Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000) (contract is legally binding “if its terms are sufficiently
definite to enable a court to understand the parties’ obligations”). The Plan Documents also do not
provide any details of HealthCare’s obligations as Plan Administrator, except to note that it has the
“sole and exclusive discretion” to interpret benefits, terms, conditions, and exclusions under the
Plan; make factual determinations related to the Plan; and offer benefits for services not otherwise
covered by the Plan.
Nor can the Plan Documents be reasonably construed as (1) containing an agreement
by Lesniak to provide employment or other services to the City1 or (2) a unilateral contract on the
part of the City or Plan because they do not identify any performance that covered persons must
complete to be entitled to benefits.2 Cf. City of Houston v. Williams, 353 S.W.3d 128, 135 (Tex.
2011) (holding that city ordinances created unilateral contract subject to Chapter 271 by promising
city firefighter-employees certain benefits in exchange for actual performance of duties, where such
benefits and duties were specifically outlined in ordinances). Furthermore, the record contains no
other contracts stating the essential terms of any services to be provided by any party, and Lesniak’s
1
In fact, the Plan Documents recite that “[t]he Plan does not constitute a contract of
employment.”
2
Additionally, the Plan Documents recite that the City Manager retains the authority to
amend, cancel, or discontinue the Plan at any time without the consent of or prior notice to any
covered person.
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pleadings do not allege the existence of any other contract that the City and the Plan have breached
except for these Plan Documents.
On this record, we conclude that the contracts under which Lesniak sues the City
and the Plan for breach of contract do not fall within the limited waiver of immunity in Local
Government Code Sections 271.151 and 271.152. Accordingly, we hold that the trial court erred
in denying the plea to the jurisdiction.
CONCLUSION
The City and the Plan have governmental immunity from suit, absent waiver, of
which there is no evidence on this record. Accordingly, we reverse the trial court’s order denying
the City and the Plan’s plea to the jurisdiction and render judgment dismissing Lesniak’s claims for
lack of jurisdiction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Bourland
Reversed and Rendered
Filed: December 1, 2015
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the United Healthcare Choice Plus Plan for City of Austin Employees and the City of Austin v. Charles Lesniak
Combined Opinion