Case 3:22-cv-00006 Document 1-2 Filed on 01/05/22 in TXSD Page 1 of 9
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`EXHIBIT A
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`EXHIBIT A
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`Case 3:22-cv-00006 Document 1-2 Filed on 01/05/22 in TXSD Page 2 of 9
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`Filed
`11/30/2021 8:55 AM
`Dwight D. Sullivan
`County Clerk
`Galveston County, Texas
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`CAUSE NO. CV-0089242
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`ERLC, LLC
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`Plaintiff,
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`vs.
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`HEALTH CARE SERVICE
`CORPORATION DB/A BLUE CROSS
`AND BLUE SHIELD OF TEXAS and
`GUADALUPE GUZMAN
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`Defendants.
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`IN THE COUNTY COURT
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`COUNTY COURT AT LAW 3
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`GALVESTON COUNTY, TEXAS
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`PLAIlVTIFF'S FIRST AMENDED PETITION
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`Plaintiff, ERLC, LLC, files this First Amended Petition against Defendants, Health Care
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`Service Corporation d/b/a Blue Cross and Blue Shield of Texas and Guadalupe Guzman, and
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`shows the Court as follows:
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`I.
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`DISCOVERY LEVEL
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`1.
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`Discovery in this case shall be conducted under Leve12 pursuant to Texas Rule of
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`Civil Procedure 190.3.
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`II.
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`PARTIES
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`Plaintiff ERLC, LLC is a Texas Limited Liability Company.
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`Defendant Health Care Service Corporation d/b/a Blue Cross and Blue Shield of
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`2.
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`3.
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`Texas ("BCBB") is an Illinois corporation authorized to do business as an insurance company in
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`the State of Texas and may be served with process by serving its registered agent, Corporation
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`Service Company, 211 East 7`h Street, Suite 620, Austin, Texas 78701-3218.
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`4.
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`Defendant Guadalupe Guzman is an individual residing in Galveston County,
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`Texas. Guzman may be served at 517 East Foley Alvin, Texas 77511 or wherever he may be found.
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`4872-2614-4772v.3
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`III. RULE 47 STATEMENT
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`5.
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`Pursuant to Texas Rule of Civil Procedure 47, Plaintiff seeks monetary relief of
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`$250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney's
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`fees and costs.
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`IV.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over this matter because the amount in controversy
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`exceeds the minimum jurisdictional requirements.
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`7.
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`Venue is proper in Galveston County, Texas because all or a substantial part of the
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`acts or omissions forming the basis of this suit occurred in Galveston County, Texas, pursuant to
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`Section 15.002(a)(1) of the Texas Civil Practice & Remedies Code.
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`V.
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`FACTS
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`8.
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`ERLC is an emergency hospital located in League City, Texas. On or around
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`February 11, 2020, ERLC provided emergency medical services to Guzman. At that time, Guzman
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`represented that she was insured by BCBS. BCBS considered ERLC an "out of network" provider.
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`9.
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`ERLC treated Guzman and then subsequently sent a reasonable and customary bill
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`for services to BCBS and Guzman. The amount billed was $90,473.01.
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`10. On March 9, 2020, BCBS accepted coverage and provided partial payment of
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`_ -
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`$466.50. Guzman paid $412.50. However, BCBS has since refused to pay the remaining
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`$89,594.01 due and owing for services provided by ERLC. As the patient and recipient of services,
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`Guzman is jointly and severally liable for payment.
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`11. On or about September 2021, ERLC and BCBS participated in the mandatory
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`mediation process established the Texas Insurance Code. On September 23, 2021, the mediator
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`provided a mediator's report confirming that mediation was unsuccessful and concluding the
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`4872-2614-4772v.3
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`mediation process under the Texas Insurance Code.
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`12.
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`ERLC fully complied with its obligations to provide medical services at the usual
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`and customary rate. However, Defendants have failed to pay ERLC.
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`VI. CAUSES OF ACTION
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`A. Breach of Contract/Texas Insurance Code — Against BCBS
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`13.
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`14.
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`ERLC incorporates the above facts by reference herein.
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`Pursuant to BCBS's contract with its insureds, BCBS was obligated to pay for the
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`medical services that ERLC provided to its insureds, including Guzman. Because ERLC is the
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`assignee of these patients, BCBS is obligated to pay ERLC directly for the medical services that
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`ERLC provided.
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`15.
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`BCBS breached its obligations by paying ERLC only $466.50, instead of the
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`$90,473.01 that it owed.
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`16.
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`ERLC is entitled to its attorney's fees in the prosecution of this matter pursuant to
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`Tex. Civ. Prac. & Rem. Code § 38.002.
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`B. Violation of Texas Insurance Code Section 1467.0575 — Against BCBS
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`17.
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`18.
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`19.
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`ERLC incorporates the above facts by reference herein.
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`ERLC provided emergency medical services
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`ERLC and BCBS participated in the mandatory mediation process established by
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`the Texas Insurance Code for out-of-network providers. The parties failed to reach an agreement.
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`On September 23, 2021, the mediator provided a report confirming that the parties did not reach
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`an agreement at mediation.
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`20.
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`Pursuant to Section 1467.0575 of the Texas Insurance Code, not later than the 45th
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`day after the date that the mediator's report is provided to the department under Section 1467.060,
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`4 8 72-2 6 1 4117 72v.3
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`either party to a mediation for which there was no agreement may file a civil action to determine
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`the amount due to an out-of-network provider.
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`21.
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`ERLC filed this action on November 5, 2021. ERLC seeks a determination from
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`the Court that ERLC is owed $90,473.01 for the emergency medical services provided to BCBS's
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`insured.
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`C. Breach of Imnlied Contract — Against BCBS
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`22.
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`23.
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`ERLC incorporates the above facts by reference herein.
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`Defendant indicated, by a course of conduct and dealings, trade usage, and/or
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`acknowledging its obligations under Texas law, and the circumstances surrounding the
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`relationship to ERLC that BCBS would pay for surgical and medical services provided, including
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`the emergency services provided by ERLC to the patient member. BCBS was paid premiums for
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`emergency healthcare benefits including for out-of-network providers. BCBS also know that
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`ERLC was required by law to treat BCBS's members if they require emergency or related medical
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`care.
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`24.
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`The emergency and urgent services rendered by ERLC to the patient member
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`conferred a benefit on BCBS because the emergency care of out-of-network specialists at
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`emergency_ departinents is essential and necessary to allow BCBS to satisfy its contractual and
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`other legal obligations to its patient member. BCBS further indicated, by a course of conduct and
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`dealings, trade usage, and/or legal obligations, and the circumstances surrounding the relationship,
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`to ERLC that BCBS would hold the patient member harmless, and thus would timely pay Plaintiff
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`its usual and customary rate ("UCR") or billed amounts based, in accordance with Texas law. See
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`Tex. Ins. Code § 1301.0053.
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`25.
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`BCBS also indicated, by a course of conduct and dealings, and/or trade usage, and
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`4872-2614-4772v.3
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`the circumstances surrounding the relationship, to ERLC that they are subj ect to and would comply
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`with Texas health laws and regulations as evidenced by the TDI-approved policy that patient
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`member had at the time of service.
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`26.
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`ERLC rendered medically necessary emergency services, to the patient member
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`and in doing so, Plaintiff reasonably expected BCBS to properly compensate ERLC. The failure
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`of BCBS to pay the reasonable value of the services rendered constitutes breach of the implied
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`contract between BCBS and Plaintiff.
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`D. Breach of Contract — Against Guzman
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`27.
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`28.
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`ERLC incorporates the above facts by reference herein.
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`In the alternative, ERLC and Guzman entered into a valid and enforceable contract
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`for emergency medical services. Guzman agreed to pay ERLC in exchange for ERLC's services.
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`ERLC performed its contractual obligations.
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`Guzman breached the contract by failing to adequately compensate ERLC for its
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`29.
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`30.
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`services.
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`31.
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`Guzman's breach caused ERLC to suffer damages.
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`VII. DAMAGES
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`_
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`32.
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`ERLC incorporates the above facts by reference herein.
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`33.
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`Defendants' acts have been the producing and proximate causes of Plaintiff's
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`damages in excess of the minimum jurisdictional limits of this court.
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`VIII. ATTORNEY'S FEES
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`34.
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`Due to Defendants' refusal to pay Plaintiff the monies due for necessary medical
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`treatment, goods, and services provided to Defendant's patient member, Plaintiffhas been required
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`to employ the services of the undersigned attorneys. Plaintiff is entitled to recover its reasonable
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`4872-2614-4772v.3
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`attorneys' fees and costs pursuant to Tex. Civ. Prac. & Rem. Code § 38.001(1) and 38.001(8),
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`which amounts will be stated at such time as they can be determined, and for which amounts
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`Plaintiff prays for judgment.
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`IX.
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`SELF-AUTHENTICATION
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`35.
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`Pursuant to Texas Civil Procedure Rule 193.7, Plaintiff gives "actual" written
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`notice to Defendants that all documents produced in this litigation will be used by Plaintiff at any
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`pre-trial proceedings and at trial. All documents produced in this litigation are deemed self-
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`authenticating for use in any pre-trial proceeding or at trial, and any objections by Defendants shall
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`be in writing and placed on the record, giving Plaintiff a reasonable opportunity to establish the
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`challenged document's authenticity.
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`X.
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`JURY DEMAND
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`36.
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`Plaintiff hereby respectfully demands a trial by jury.
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`XI.
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`PRAYER
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`For these reasons, Plaintiff respectfully requests the Court issue citations for Defendants to
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`appear and answer, and that upon fmal hearing the Court enter judgment against Defendants for
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`the following:
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`1._ Actual damages and consequential damages; _
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`2. All lawful pre judgment and post judgment interest at the highest rate allowed
`by the laws of the state of Texas;
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`3. All reasonable attorneys' fees and post judgment interest on such attorneys'
`fees at the highest rate allowed by the laws of the state of Texas, and all
`reasonable attorneys' fees to be incurred by Plaintiff in responding to any
`appeal proceedings instituted by one or more Defendants, including all costs
`and expenses related to all such appeal proceedings;
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`4. All costs of court incurred in connection with this lawsuit; and
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`5. All additional and fiirther relief, general and special, at law or in equity, to
`which Plaintiff may show itself justly entitled.
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`4872-2614-4772v.3
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`1VIUNSCH HARDT KOPF 8z FIAI2R, P.C.
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`By:
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` /s/Pooneh Momeni
`Daniel Sternthal
`State Bar No. 24034692
`Pooneh Momeni
`State Bar No. 24098123
`700 Milam Street, Suite 2700
`Houston, Texas 77002-2806
`Tel: (713) 222-1470
`Fax: (713) 222-1475
`dsternthal@munsch.com
`pmomeni@munsch.com
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`ATTORNEYS FOR PLAINTIFF
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`4872-2614-4772v.3
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`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
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`Heather Valentine on behalf of Pooneh Momeni
`Bar No. 24098123
`hvalentine@munsch.com
`Envelope ID: 59537938
`Status as of 11 /30/2021 11:10 AM CST
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`Case Contacts
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`Name
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`BarNumber Email
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`TimestampSubmitted Status
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`-Heather Valentine
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`Pooneh Momeni
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`Daniel Sternthal
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`Lisa Southerland
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`hvalentine@munsch.com
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`11/30/2021 8:55:57 AM SENT
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`PMomeni@munsch.com
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`11/30/2021 8:55:57 AM SENT
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`DStemthal@munsch.com
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`11/30/2021 8:55:57 AM SENT
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`LSoutherland@munsch.com 11/30/2021 8:55:57 AM SENT
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