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`IBIrr
`EXHIBIT
`2
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`mmon5
`IN THE DISTRICT COURT OF OKLAHOMA COUNTY
`STATE OF OKLAHOMA
`
`CHARLES ED LAIN,
`
`Plaintiff,
`
`v.
`
`BLUE CROSS AND BLUE SHIELD OF
`OKLAHOMA, a domestic unincorporated
`association, and HEALTH CARE SERVICE
`CORPORATION, a foreign mutual legal reserve
`company,
`
`Defendants.
`
`PETITION
`
`t9N9. 2021 - 2329
`
`FILED IN DISTRICT COURT
`OKLAHOMA COUNTY
`
`MAY 2 8 2021
`RICK WARREN
`COURT CLERK
`107
`
`Plaintiff, Charles Lain, for his cause of action against Defendants Blue Cross and Blue
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`Shield of Oklahoma and Health Care Service Corporation, alleges and states as follows:
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`JURISDICTION AND VENUE
`
`1.
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`2.
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`Plaintiff, Charles Lain, is a resident and citizen of Love County, Oklahoma.
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`Defendant Blue Cross and Blue Shield of Oklahoma ("BCBS") operates under the
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`common name Blue Cross Blue Shield of Oklahoma in the state of Oklahoma as an unincorporated
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`division of Defendant Health Care Service Corporation, a mutual legal reserve company.
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`3.
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`Defendant BCBS is an entity comprised entirely of Oklahoma members,
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`policyholders, and citizens.
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`4.
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`Defendant BCBS maintains headquarters in Oklahoma and issues and underwrites
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`insurance policies in every county in Oklahoma.
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`5.
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`Defendant BCBS has its own company President and officer that is responsible for
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`the overall strategic direction of BCBS, including operations, sales and account management,
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`network management, health care management, medical policy and external affairs.
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`
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`6.
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`As an unincorporated association in the State of Oklahoma, Defendant BCBS may
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`be served with process by delivering a copy of the summons and of the petition to an officer, a
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`managing or general agent located at 1400 South Boston, Tulsa, Oklahoma, 74119.
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`7.
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`Under Oklahoma law, unincorporated associations like BCBS have the capacity to
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`sue or to be sued in the State of Oklahoma.
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`8.
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`Defendant Health Care Service Corporation is a mutual legal reserve company
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`doing business in the State of Oklahoma as Blue Cross Blue Shield of Oklahoma ("BCBS"), an
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`unincorporated association.
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`9.
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`Defendant Health Care Service Corporation is authorized to transact business
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`within the State of Oklahoma and may be served with process through its service agent, Glen
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`Mulready, Oklahoma Insurance Commissioner, 5 Corporate Plaza, Suite 100, 3625 NW 56th Street,
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`Oklahoma City, Oklahoma 73112.
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`10.
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`For purposes of jurisdiction, Defendant BCBS should be treated as a separate,
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`unincorporated association with members and policyholder owners comprised entirely of
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`Oklahoma citizens and policyholders because Health Care Service Corporation is a mutual legal
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`reserve company rather than a corporation registered with the Secretary of State of the State of
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`Illinois.
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`11.
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`At all times relevant to this matter, Plaintiff was insured by Defendants under an
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`individual, health insurance policy, Group No: 0G1800, Member ID: YUQ927727581 (the
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`"Policy").
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`12.
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`The Policy, and all state law claims and causes of action arising out of and related
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`to the Policy, are exempt from ERISA preemption.
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`2
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`13.
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`In July 2019, Plaintiff was diagnosed with anal cancer. Due to various factors
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`impacting Plaintiff's health and safety, his treating oncologist determined that his cancer should be
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`treated utilizing Proton Beam Therapy radiation ("PBT").
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`14.
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`Plaintiff submitted a claim for insurance coverage and benefits under the Policy for
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`treatment of his life-threatening cancer utilizing PBT.
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`15. On August 21, 2019, Defendants denied Plaintiffs claim for PBT.
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`16. On August 23, 2019, Plaintiff submitted an appeal of BCBS's denial, which
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`included a letter from MD Anderson Cancer Center in support of coverage for the recommended
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`treatment.
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`17. On or about August 26, 2019, Plaintiff initiated an external review appeal, which
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`included the appeal letter from MD Anderson containing information and evidence in support of
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`coverage for the recommended treatment.
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`18.
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`Plaintiff's external review and appeal to Defendants were denied on August 30,
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`2019.
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`19.
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`Plaintiff has exhausted all appeals and reviews, internal and external, of his claim
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`under the Policy.
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`20.
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`At all times, Plaintiff complied with the terms of the insurance policy required for
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`coverage.
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`21.
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`Plaintiff properly submitted a claim for health insurance benefits under the
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`insurance policy.
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`22.
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`Defendants owed Plaintiff specific obligations under the terms of the insurance
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`policy.
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`3
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`23.
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`Specifically, Defendants are obligated to pay for medical treatment and other
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`covered services under the terms of the insurance policy.
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`24.
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`Defendants are obligated to pay for medical treatment that is medically necessary
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`and not experimental or investigational.
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`25.
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`The PBT recommended for Plaintiffs cancer is medically necessary and is not
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`experimental or investigational and was therefore covered under Plaintiff's Policy.
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`26.
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`Defendants were provided specific information and evidence by Plaintiff's doctors
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`and medical providers establishing that the recommended treatment is necessary given Plaintiff s
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`medical condition.
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`27.
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`Defendants failed to cover the treatment recommended by Plaintiffs doctors,
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`despite appeals and the submission of evidence and information establishing that the required
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`treatment is the standard of care for Plaintiff's condition.
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`28.
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`Defendants have improperly caused delays in medical treatment for Plaintiff by
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`delaying claim decisions or arbitrarily denying claims and forcing Plaintiff to initiate appeals.
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`29.
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`The acts and omissions of Defendants, in the investigation, evaluation and decision
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`on Plaintiff's claims were unreasonable, improper, and in violation of the terms of the Policy and
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`applicable law.
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`30.
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`Defendants, as insurers, owe Plaintiff, as an insured, a duty to deal fairly and act in
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`good faith under Oklahoma law.
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`31.
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`The acts and omissions of Defendants in the investigation, evaluation, delay and
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`decision on Plaintiff's claims were unreasonable, improper, contrary to established medical
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`standards, and constitute bad faith for which extra-contractual damages are claimed.
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`32.
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`Defendants breached the contract and acted unreasonably and in bad faith by:
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`4
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`
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`a. failing to cover Plaintiff's claims,
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`b. refusing to pay for Plaintiff's PBT treatment,
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`c. forcing Plaintiff to initiate appeals without providing reasonable and adequate
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`consideration of the information submitted by or on Plaintiff's behalf as part of said
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`appeals,
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`d. improperly and arbitrarily denying coverage for medical treatments,
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`e. ignoring evidence that the recommended treatment has been established as the
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`medical standard of care,
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`f. violating Oklahoma statutes regarding proton beam therapy and medical reviews,
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`g. supplanting Defendants' own interests ahead of the interests of its insured, and
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`h. otherwise implementing and executing a claims decision process that fails to
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`establish and follow adequate standards for claims handling.
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`33.
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`Defendants failed to handle Plaintiff's claim consistent with Oklahoma law
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`applicable to the specific treatment recommended by Plaintiffs treating physicians and for which
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`Defendant denied coverage.
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`34.
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`Defendants wrongfully denied Plaintiff's claim based on incorrect and outdated
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`information and failed to consider Plaintiffs overall medical condition.
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`35.
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`Defendants failed to properly consider and apply Oklahoma laws applicable to
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`Plaintiff's recommended treatment and resulting claim for insurance benefits.
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`36.
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`Defendants recklessly disregarded its duty to deal fairly and act in good faith as its
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`conduct was unreasonable and there was a high probability that the denial of Plaintiff's claims
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`would cause serious harm to Plaintiff.
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`5
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`37. As a direct and proximate result of Defendants' bad faith, Plaintiff has suffered
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`damages in excess of $75,000.00, including pain and suffering, mental anguish, loss of reputation,
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`embarrassment, and personal injuries.
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`38.
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`The acts and omissions of Defendants in the handling of Plaintiff's claim were with
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`reckless disregard for the rights of others and/or were done intentionally and with malice and/or
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`were life threatening to humans, therefore, Plaintiff is entitled to recover punitive damages.
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`39.
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`Alternatively, the acts of omissions of Defendants in handling Plaintiff's claims
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`were with reckless disregard for the rights of others and/or were done intentionally and with malice
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`and/or were life threatening to humans, therefore, Plaintiff is entitled to recover punitive damages.
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`WHEREFORE, Plaintiff prays for judgment against the Defendants, for his compensatory
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`and punitive damages, together with court costs, attorneys' fees, interest, and any further relief the
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`Court deems just and equitable. The amount sought as damages is in excess of the amount required
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`for diversity jurisdiction pursuant to §1332 of Title 28 of the United States Code.
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`Respecjfp.11y submitt d,
`
`Justin . Meek, OBA #21294
`Thom A. Paruolo, OBA #18442
`Kevin Cunningham, OBA #22117
`DEWITT PARUOLO & MEEK
`P.O. Box 138800
`Oklahoma City, OK 73113
`Phone: 405/705-3600
`Fax: 405/705-2573
`jmeek®461egal.com
`tom®461egal.com
`morton®461egal.com
`kcunningham®461egal.com
`
`JURY TRIAL DEMANDED
`ATTORNEY LIEN CLAIMED
`
`6
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