ACCEPTED
04-14-00752-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/10/2015 1:52:31 AM
KEITH HOTTLE
CLERK
NO. 04-14-00752-CV
IN THE COURT OF APPEALS FILED IN
4th COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO SAN ANTONIO, TEXAS
06/10/15 1:52:31 AM
KEITH E. HOTTLE
Clerk
HUMANA INSURANCE COMPANY,
APPELLANT,
V.
DOLORES MUELLER,
APPELLEE.
On Appeal from the County Court at Law No. 3,
Bexar County, Texas
MOTION FOR REHEARING
OF APPELLEE DOLORES MUELLER
Stephen G. Nagle
State Bar No. 14779400
sgnagle@lawyernagle.com
1002 West Avenue, Suite 100
Austin, TX 78701
(512) 480-0505 - Telephone
(512) 480-0571 - Facsimile
ATTORNEY FOR APPELLEE DOLORES MUELLER
Oral Argument Requested
Humana vs. Mueller, Appellee’s Motion for Rehearing
NO. 04-14-00752-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO
HUMANA INSURANCE COMPANY,
APPELLANT
V.
DOLORES MUELLER,
APPELLEE
On Appeal from the County Court at Law No. 3,
Bexar County, Texas
MOTION FOR REHEARING
OF APPELLEE DOLORES MUELLER
ISSUES PRESENTED
A. Does the opinion of the Court sufficiently address the question of
jurisdiction of an appeal which is brought by an independent contractor
to a political subdivision of the state?
B. Is the decision of the Court correct in light of the decision of the Texas
Supreme Court in Brown & Gay Engineering, Inc. v. Olivares?
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Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 1 of 6
ARGUMENT AND AUTHORITIES
A. INDEPENDENT CONTRACTOR AND JURISDICTION
While the opinion of the Court deals with HUMANA’s status as an agent of
SAHA, it does not address the question of whether HUMANA was an independent
contractor. TEX. CIV. PRAC. & REM. CODE Sec. 101.001(2) defines "employee" to
mean “a person, including an officer or agent, who is in the paid service of a
governmental unit by competent authority, but does not include an independent
contractor, an agent or employee of an independent contractor . . . ”
The Court’s opinion assumes that HUMANA is an “agent” rather than an
independent contractor. However, this is inconsistent with HUMANA’s position.
HUMANA, like Brown & Gay Engineering, has stated that it is not seeking “official”
immunity, but “governmental” immunity.
B. THE IMPACT OF BROWN & GAY ENGR., INC. V. OLIVARES
This court should grant this Motion for Rehearing in light of the recent
decision of Texas Supreme Court in Brown & Gay Engineering, Inc. v. Olivares, NO.
13–0605, April 24, 2015. In that case, the Court clarified the principles to be used
in distinguishing cases when it would be appropriate to extend immunity to an
independent contractor. The opinion of this Court does not address those principles.
The Supreme Court articulated a set of underlying concerns that justify the
doctrine of sovereign immunity in the modern age. One of them is implication of the
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Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 2 of 6
governmental purse. It is not enough for the government’s purse to be affected
indirectly. Instead, it is the concern for unexpected liabilities which justifies
sovereign immunity. Therefore, the finances of SAHA are only impacted if Ms.
Mueller is seeking to indirectly impose liability on SAHA.
While the agreement between SAHA and HUMANA in this case provides for
indemnity to HUMANA in connection with HUMANA's exercise of its powers and
duties under the Agreement, the agreement excepts damages that are attributable to
fraud, willful misconduct, or intentional disregard on the part of HUMANA, or
HUMANA's failure to abide by the Agreement. Ms. Mueller seeks to show that
HUMANA’s conduct amounted to willful misconduct or intentional disregard.
In spite of inartful pleading (for “benefits denied”) in the damages paragraph
of the active Petition, the action Ms. Mueller has brought against HUMANA is for
extra-contractual damages which have resulted from HUMANA’s bad faith claims
handling conduct. Ms. Mueller does not seek to indirectly impose liability on SAHA.
Therefore, the funds of the governmental entity are not implicated.
The Supreme Court also articulate a standard by which to judge whether
immunity attaches to a contractor or not:
In each of these cases, the complained-of conduct for which the
contractor was immune was effectively attributed to the government.
That is, the alleged cause of the injury was not the independent action
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Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 3 of 6
of the contractor, but the action taken by the government through the
contractor.
In the present case, Ms. Mueller seeks to impose liability on HUMANA for its
own conduct, not for its conduct effecting the policies of SAHA. HUMANA denied
Ms. Mueller’s requests for pre-certification of a back surgery on the ground that the
proposed procedure was “experimental.” SAHA had and has no policies concerning
whether a medical procedure is “experimental” apart from what HUMANA created.
Ms. Mueller does not seek hold HUMANA liable merely for following
SAHA’s directions. Instead, Ms. Mueller seeks to hold HUMANA responsible for
conduct which was outside the scope of its authority, or a bad faith use of that
authority.
Finally, the fact that the administrative agreement between HUMANA and
SAHA provides that “The Plan Manager does not have discretionary authority or
responsibility in the administration of the plan” should not be the end of the inquiry.
The facts in the record show that, in spite of this boilerplate language, HUMANA did
in fact have wide discretion in its implementation of the plan, and in the interpretation
of its terms.
It is true that the Supreme Court, in Brown & Gay, cites and discusses Foster
v. Teacher Retirement System, 273 S.W.3d 883 (Tex. App.—Austin 2008, no pet.).
However, Foster is distinguishable from the present case. Like the Olivareses, and
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Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 4 of 6
unlike Foster, Ms. Mueller does not “effectively seek to recover money from the
government.” Ms. Mueller dismissed SAHA from this case precisely because she is
not seeking to make SAHA pay.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee MUELLER respectfully
requests that this Court grant her Motion for Rehearing, dismiss HUMANA’s appeal
for lack of jurisdiction, or affirm the decision of the Court below, and grant Appellee
such other and further relief to which she may show herself entitled.
Respectfully submitted,
Digitally signed by: Stephen G.
Stephen Nagle
DN: CN = Stephen G. Nagle
email = sgnagle@lawyernagle.
com C = US O = Nagle Law Firm
G. Nagle OU = Attorney
Date: 2015.06.10 01:42:40 -06'00'
Stephen G. Nagle
State Bar No. 14779400
sgnagle@lawyernagle.com
1002 West Avenue, Suite 100
Austin, TX 78701
(512) 480-0505 - Telephone
(512) 480-0571 - Facsimile
ATTORNEY FOR APPELLEE MUELLER
______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 5 of 6
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, I certify by my signature above that this
Motion for Rehearing contains 1064 words. This is a computer-generated document
created in Corel Word Perfect, using 14-point typeface for all text, except for footers
which are in 12-point typeface. In making this certificate of compliance, I am relying
on the word count provided by the software used to prepare the document.
CERTIFICATE OF SERVICE
By my signature above, I certify that a copy of the foregoing instrument was
served upon the attorneys of record of all parties to the above cause as indicated
below in accordance with Rule 9.5(b), Tex. R. App. P., on this 10th day of June, 2015.
Via Electronically Filing
Richard G. Foster
rfoster@prdg.com
Lisa P. Alcantar
lalcantar@prdg.com
Porter, Rogers, Dahlman & Gordon, P.C.
Trinity Plaza II
745 E. Mulberry Ave, Suite 450
San Antonio, Texas 78212
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Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 6 of 6