Case 2:20-ap-01667-BR Doc 1 Filed 11/18/20 Entered 11/18/20 08:07:18 Desc
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`
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`Kevin McBride (SBN 116852)
`McBRIDE LAW, PC
`700 Flower Street
`Suite 1000
`Los Angeles, CA 90017
`Telephone: (213) 600-6077
`Facsimile: (213) 600-6005
`Email: km@mcbride-law.com
`
`Attorney for Plaintiff
`
`
`
`IN RE:
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`DR. S. DAYYANI, OD, a Professional
`Optometric Corporation
`
`
`______________________________________
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`DR. S. DAYYANI, OD, a Professional
`Optometric Corporation,
`
`Plaintiff
`
`v.
`
`AETNA LIFE & CASUALTY (BERMUDA)
`LTD., AND DOES 1-20
`
` Defendant(s)
`
`
`UNITED STATES BANKRUPTCY COURT
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`CENTRAL DISTRICT OF CALIFORNIA – LOS ANGELES DIVISION
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`
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`Case No. 2:20-bk-20237-BR
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`Chapter 11
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`Adv. Case No.
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`COMPLAINT FOR BREACH OF
`CONTRACT; OPEN BOOK
`ACCOUNT; BREACH OF IMPLIED-
`IN-FACT CONTRACT; SERVICES
`RENDERED; QUANTUM MERUIT
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`
`
`
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`
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`Pursuant to FRBP Rule 7008 and FRCivP Rule 8, Plaintiff, Dr. S. Dayyani, OD, a
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`Professional Optometric Corporation, for causes of action alleges against Defendant Aetna Life
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`& Casualty (Bermuda) Ltd. the following:
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`
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`ADVERSARY PROCEEDING COMPLAINT
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`Case 2:20-ap-01667-BR Doc 1 Filed 11/18/20 Entered 11/18/20 08:07:18 Desc
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`JURISDICTION AND VENUE
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`1. This adversary proceeding relates to the following case in which Plaintiff is listed as the
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`Debtor: In Re: Dr. S. Dayyani, OD, a Professional Optometric Corporation, Case No. 2:20-
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`bk-20237-BR, Chapter 11, United States Bankruptcy Court, Central District of California,
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`Los Angeles Division, Honorable Barry Russell presiding (the “Chapter 11 Case”).
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`2. This adversary proceeding also relates to the case pending in Central District Court in which
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`Plaintiff’s president, Dr. Shahrokh (mis-named in court records as “Shahroka”) Dayyani,
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`OD, is listed as plaintiff: Stanton, et al. v. Aetna Life & Casualty (Bermuda) Ltd., Case No.
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`2:18-cv-8937-CJC-AFM, United States District Court, Central District of California,
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`Honorable Cormac J Carney, presiding (the “Stanton Case”). The Stanton Case involves
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`claims by multiple physicians against Aetna, alleging common facts and claims, together
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`with specific payment demands on behalf of each named plaintiff. The facts and claims
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`commonly alleged in the Stanton Case Amended Complaint are the same facts claims
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`presented in this adversary proceeding Complaint, with only one material difference: claims
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`alleged on behalf of Dr. Dayyani in the Stanton Case are recast and alleged here on behalf of
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`the real party in interest with respect to such claims, Dr. S. Dayyani, OD, APOC.
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`3. A notice of related case has or will be filed in the Stanton Case seeking partial referral of the
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`Stanton Case to the Court in this adversary proceeding, only as concerning the claims of Dr.
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`Dayyani in the Stanton Case. In the alternative, a stipulated voluntary dismissal, without
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`prejudice, of Dr. Dayyani’s claims in the Stanton Cases will be pursued; provided that
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`counsel for Aetna in the Stanton Case will agree to allow the substantive claims presented in
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`the Stanton Case to be continued in this adversary proceeding without waiving any claims or
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`defenses of either party.
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`____________________________________________________________________________________
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`4. This adversary proceeding should be prosecuted as an effective continuation of the Stanton
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`Case, with respect to the segregated claims of Dr. Dayyani in the Stanton Case, properly re-
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`cast in this adversary proceeding as claims of Dr. S Dayyani, OD, a Professional Optometric
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`Corp.—the plaintiff herein and Debtor in the associated Chapter 11 Case. All claims and
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`defenses elsewise available in the Stanton Case, to both parties, should continue in this
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`adversary proceeding.
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`5. Plaintiff hereby consents to entry of final orders or judgment by the Bankruptcy Court in this
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`matter.
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`6. This Court has original jurisdiction pursuant to 28 USC §1334(b) in that this adversary
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`proceeding arises in and/or relates to the Chapter 11 Case for the following reasons:
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`a. Defendant Aetna is listed in Debtor’s schedule of assets (Schedule A/B Part 11: 74) as a
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`third party against whom Debtor has a cause of action—the claims presented in this
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`adversary proceeding Complaint;
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`b. Defendant Aetna is also listed as a non-priority, unsecured creditor in Debtor’s schedule
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`of debts (Schedule E/F Part 2: 3.4) because Defendant (and various other Aetna entities)
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`have a pending cause of action against Plaintiff, Dr. Dayyani Eyecare (a legal alias of
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`Debtor identified in the Chapter 11 Case) and Dr. Shahrokh Dayyani, OD, pending in
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`California Superior Court, County of Los Angeles, Case No. BC705935 (the “Aetna State
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`Case”). The claims alleged by Aetna in the Aetna State Case arise from, and relate to, the
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`exact claims presented by Plaintiff against Aetna in this adversary proceeding Complaint.
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`7. Plaintiff will timely remove the Aetna State Case to this Court so that all related matters may
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`be resolved in a single proceeding.
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`____________________________________________________________________________________
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`8. The Court has also original jurisdiction of this case pursuant to 28 U.S.C. §1332 based on
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`diversity of citizenship. Plaintiff is a corporation duly organized under the laws of the State
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`of California, in good standing; Defendant is a citizen or subject of a foreign state,
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`incorporated in Bermuda with its principal place of business in Hamilton, Bermuda; and the
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`amounts in controversy between each Plaintiff and Defendant are in excess of $75,000.00.
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`9. The Court has personal jurisdiction over Defendant for the following reasons:
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`a. In personam jurisdiction already exists over Defendant in a related case referenced
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`above, the Stanton Case, Stanton, et al. v. Aetna Life & Casualty (Bermuda) Ltd., Case
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`No. Case No. 2:18-cv-8937-CJC-AFM, United States District Court, Central District of
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`California, Honorable Cormac J Carney, presiding; and
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`b. Defendant has conducted business in California by insuring various persons in California
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`and administering claims for benefits incurred by those covered persons in California, as
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`alleged herein.
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`10. The claims of Plaintiffs arise out of insurance Defendant provided to persons who received
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`covered services with Plaintiffs in this District. Thus, venue is proper in this judicial district
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`pursuant to 28 U.S.C. § 1391(b)(2).
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`THE PARTIES
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`11. Plaintiff is a professional optometric corporation, duly charted and authorized to do business
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`in the State of California; and doing business in Santa Monica California as Dr Dayyani
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`Eyecare. Its sole shareholder is Dr. Shahrokh Dayyani, OD a licensed optometrist. This
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`adversary proceeding Complaint is to recover amounts listed in billing statements submitted
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`to Aetna by Plaintiff for services and goods rendered to Aetna insureds. Virtually all, if not
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`all, claims submitted by Plaintiff for payment by Aetna, including the claims alleged in the
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`Stanton Case and the Aetna State Case, were submitted in the name of Plaintiff; viz., Dr. S.
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`Dayyani, OD, a Professional Optometric Corporation. For this reason, Plaintiff—the
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`corporate entity—is the real party in interest with respect to the claims presented herein.
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`12. Defendant Aetna Life & Casualty (Bermuda) Ltd. is an insurance company licensed in
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`Bermuda, a British Overseas Territory. One of Bermuda’s largest economic sectors is
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`offshore insurance/reinsurance which results from Bermuda’s minimal standards of insurance
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`regulation and laws.
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`13. Does 1-20 are, on information and belief, affiliates and/or control entities of Aetna and/or
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`part of the same corporate control group of Aetna, to be named in this action at a later date,
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`following discovery, insofar as necessary to obtain complete relief under the claims alleged.
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`14. Plaintiffs are informed and believe that the persons performing the work on the claims on
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`behalf of Defendant(s) that are the subject of this case were at the relevant times employees
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`and/or agents of Aetna.
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`SUBSTANTIVE ALLEGATIONS
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`15. Aetna issued a group health insurance policy to the Saudi Arabian Cultural Mission to cover
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`Saudi students in the United States (hereinafter “SACM students”). This policy covered
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`SACM students for medical, dental, and other health benefits.
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`16. Aetna provided SACM students with a Booklet, which states “Aetna agrees with the
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`Policyholder to provide coverage in accordance with the conditions, rights, and privileges as
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`set forth in this Booklet.”
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`17. The Booklet provides that “Aetna has the right to pay any health benefits to the service
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`provider. This will be done unless you have told Aetna otherwise by the time you file the
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`claim.”
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`____________________________________________________________________________________
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`18. Aetna also provided SACM students with a “SACM Student Guide” to answer questions
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`about the group coverage. It states: “Aetna provides a generous health insurance benefits plan
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`for SACM students inside and outside the U.S. SACM students are covered at 100% for
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`medically necessary care and services.”
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`19. In approximately November of 2010, Plaintiff began providing covered vision care services
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`and supplies to SACM students.
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`20. Before Plaintiff provided services and supplies to SACM students, his office staff would
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`verify the coverage the students possessed, provide a description of the services and supplies
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`to be provided, and request that Aetna verify the covered nature of the services and supplies.
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`In response to these requests to verify benefits, etc. Aetna routinely provided Plaintiff’s
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`office staff with a verification of the nature and extent of the covered benefits.
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`21. The SACM students treated by Plaintiff agreed with Plaintiff that payments from Aetna for
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`the services and supplies provided would be due Plaintiff. The SACM students signed written
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`assignment of benefit forms transferring their rights to benefits under the group policy to
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`Plaintiff. None of the SACM students treated by Plaintiff requested that Aetna pay any of
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`them instead of Plaintiff. Pursuant to this arrangement, when Aetna paid claims for services
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`and supplies provided by Plaintiff to SACM students, Aetna consistently paid Plaintiff for
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`those services and supplies, not the SACM students.
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`22. In approximately June of 2015, Aetna began delaying claim payments for services and
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`supplies provided by Plaintiff to SACM students. Instead of paying the claims, Aetna began
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`requesting documentation of the treatment provided. In response, Plaintiff supplied the
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`information requested. Aetna has not responded to the claims presented.
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`____________________________________________________________________________________
`ADVERSARY PROCEEDING COMPLAINT
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`23. Despite the information supplied, and compliance with Aetna’s repetitive requests for
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`documentation, Aetna has not paid the claims submitted for services and supplies provided
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`SACM students by Plaintiff. Aetna has no basis for not paying the claims for services
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`rendered by Plaintiff to Saudi students.
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`24. Based on information and belief, Plaintiffs allege that in approximately June of 2015 the
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`Saudi Arabian Cultural Mission advised Aetna that, effective December 31, 2015, it would
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`not be renewing the group policy issued to it for the SACM students. It was the loss of this
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`account that caused Aetna to begin its perpetual delay of making payments on claims for
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`services rendered by Plaintiffs, and others, to SACM students.
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`FIRST CAUSE OF ACTION
`(Breach of Contract)
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`25. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully set forth
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`herein.
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`26. As alleged herein, the SACM students were entitled to health benefits, including dental
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`benefits, under the group policy issued by Aetna to the Saudi Arabian Cultural Mission.
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`27. The coverage document provided the SACM students, the Booklet, provides that “Aetna has
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`the right to pay any health benefits to the service provider. This will be done unless you have
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`told Aetna otherwise by the time you file the claim.”
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`28. The SACM students treated by Plaintiff agreed that payments from Aetna for the services
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`and supplies provided would be due by those providers, not the covered students, and
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`executed written assignment of benefit forms in favor of Plaintiff. None of the SACM
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`Students treated by Plaintiff requested that Aetna pay them instead of Plaintiff. Pursuant to
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`this arrangement, for a number of years prior to June of 2015, Aetna consistently paid
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`Plaintiff for services and supplies provided to the SACM students. Aetna has never refused to
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`ADVERSARY PROCEEDING COMPLAINT
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`pay Plaintiff for services and supplies provided to the SACM students on the basis that
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`Plaintiff was not the proper party to pay.
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`29. Plaintiff submitted all required proof to Aetna of the services and supplies provided to the
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`SACM students that would allow Aetna to make payment to Plaintiff.
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`30. Despite its obligation to pay claims incurred by the SACM students, Aetna has not made
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`payment to Plaintiff for claims for services and supplies provided the SACM students.
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`31. As a proximate result of said acts, Plaintiff has suffered losses in an amount to be proven at
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`the time of trial, including legal interest.
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`SECOND CAUSE OF ACTION
`(Open Book Account)
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`32. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully set forth
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`herein.
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`33. For a number of years, Plaintiff provided services and supplies to SACM students covered
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`under the terms of the group policy issued by Aetna.
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`34. As a result, Aetna has become indebted to Plaintiff for such services and supplies.
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`35. Plaintiff has maintained an accounting of the amounts owed by Aetna.
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`36. Despite demands for payment, the claims for the services and supplies provided have not
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`been paid.
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`37. There is now due and owing Plaintiff claims for reimbursement monies in an amount to be
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`proven at the time of trial, including legal interest.
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`THIRD CAUSE OF ACTION
`(Breach of Implied-In-Fact Contract)
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`38. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully set forth
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`herein.
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`39. Based on the facts alleged herein, there existed an implied-in-fact contract between Plaintiff
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`and Aetna whereby Plaintiff agreed to provide Aetna with the information necessary to pay
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`claims of the SACM students and Aetna agreed to make payment to Plaintiff.
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`40. Pursuant to this arrangement, Plaintiff supplied Aetna with the requisite claims information
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`and Aetna paid the claims of SACM students.
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`41. Commencing in or about June of 2015, Aetna stopped making the claims payments despite
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`the fact that the course of dealing between Plaintiff and Aetna did not otherwise change.
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`42. There is now due and owing Plaintiff claims for reimbursement monies in an amount to be
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`proven at the time of trial, including legal interest.
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`FOURTH CAUSE OF ACTION
`(Services Rendered)
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`43. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully set forth
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`herein.
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`44. Aetna has become indebted to Plaintiff for services and supplies provided to the SACM
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`students covered under the group policy issued by Aetna, as alleged herein.
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`45. Aetna has admitted its responsibility to pay Plaintiff for services and supplies provided to the
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`SACM students by making payments on a large number of prior claims for the same type of
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`services.
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`46. Despite demands for payment, the claims for the services and supplies have not been paid.
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`47. There is now due and owing Plaintiff claims for reimbursement monies in an amount to be
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`proven at the time of trial, including legal interest.
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`FIFTH CAUSE OF ACTION
`(Quantum Meruit)
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`48. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully set forth
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`herein.
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`49. As alleged herein, Aetna agreed that it would pay benefits for the services and supplies
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`provided by Plaintiff to the SACM students.
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`50. Plaintiff provided the services and supplies to the SACM students, as alleged herein.
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`51. Aetna has not paid Plaintiff for the services and supplies provided to the SACM students, as
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`alleged herein.
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`52. Plaintiff is entitled to the reasonable value of the services and supplies provided to the
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`SACM students, as described herein.
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`53. There is now due and owing Plaintiff claims for reimbursement monies in an amount to be
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`proven at the time of trial, including legal interest.
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`WHEREFORE, Plaintiff prays for judgment against Aetna as follows:
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`1. Damages and interest as described herein;
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`2. Restitution and interest as described herein;
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`3. Costs of suit incurred herein; and
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`4. For such other and further relief as the Court deems just and proper.
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`Dated: 11/18/2020
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`McBRIDE LAW, PC
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`
` /s/Kevin McBride
`By: _____________________
`Kevin McBride
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`Attorney for Plaintiff
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`____________________________________________________________________________________
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