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`202163M4 1234
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`5/26/2021 12:46 PM
`Marilyn Burgess - District Clerk Harris County
`Envelope No. 53833148
`:11
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`VITACARE FAMILY PRACTICE,
`PLLC
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`Plaintiff,
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`V.
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`MOLINA HEALTHCARE OF TEXAS,
`INC.,
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`Defendant
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`§
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`§
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`§
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`IN THE DISTRICT COURT
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`JUDICIAL DISTRICT
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`OF HARRIS COUNTY, TEXAS
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`PLAINTIFF’S ORIGINAL PETITION
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`NOW COMES VitaCare Family Practice, PLLC (“VitaCare”), Plaintiff, complaining of
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`and about Molina Healthcare Of Texas, Inc., Defendant, and for cause of action shows unto the
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`Court the following:
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`INTRODUCTION
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`1.
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`This action concerns the Defendant’s failure and refusal
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`to properly pay or
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`reimburse Plaintiff for claims made for medical care and services that Plaintiff provided to
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`Defendant’s members. Plaintiff, both independently and as assignee of the rights of several of
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`Defendant’s members who received medical services from Plaintiff,
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`seek damages from
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`Defendant as set forth herein. That failure to pay claims included not only the claim itself, but
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`also the penalty or interest for failure to pay the claims timely.
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`DISCOVERY CONTROL PLAN LEVEL
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`2.
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`Plaintiff intends that discovery be conducted under Discovery Level 2.
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`PARTIES AND SERVICE
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`3.
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`Plaintiff, VitaCare, is a corporation, whose principal place of business is located
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`at 11399 Veterans Memorial Dr., Suite B, Houston, Harris County, Texas 77067.
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`The
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`Registered Agent there is Dr. Vinh Hoang Vo.
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`4.
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`Defendant Molina Healthcare of Texas, Inc.
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`is a for-profit Texas corporation
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`whose office is located at 5605 N. MacArthur Blvd, Suite 400, Irving, Texas 75038.
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`It can be
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`served with process by serving its registered agent, Corporation Service Company dba CSC —
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`Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
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`JURISDICTION AND VENUE
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`5.
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`6.
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`The subject matter in controversy is within the jurisdictional limits of this court.
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`Pursuant to Texas Rules of Civil Procedure “TRCP” 47, Plaintiff seeks monetary
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`relief over $200,000, but not more than $1,000,000.
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`7.
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`This court has jurisdiction over the parties because the Defendant does business in
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`the State of Texas.
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`8.
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`Venue in Harris County is proper in this cause under Section 15.002(a)(1) of the
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`Texas Civil Practice and Remedies Code because all or a substantial part of the events or
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`omissions giving rise to this lawsuit occurred in this county.
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`AGENCY
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`9.
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`Any time it is alleged in this pleading that a Defendant did an act or failed to do
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`any act or thing, it is meant that Defendant or its authorized, apparent, or ostensible agent(s),
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`employee(s), or representative(s) did such act or failed to do such act or thing, thereby making
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`Defendants liable.
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`BACKGROUND FACTS
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`10.
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`Defendant Molina Healthcare of Texas, Inc. is a corporation with a principal place
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`of business in Texas. Defendant collectively offers insurance plans, products, and service in the
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`State of Texas, hereinafter
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`referred to as (“Molina”). Defendant
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`is in the business of
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`compensating medical providers for covered medical services rendered to their patient members.
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`Defendant markets and advertises to patients and medical provider alike for the insurance plans,
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`products, and services they provide in Texas. Plaintiff entered into a contract with Defendant,
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`effective January 1, 2016, for the provision of various medical services to Defendant’s patient
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`members. That contract continues in force. Defendant publishes policies, procedures, and
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`guidelines for medical providers generally,
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`for those medical providers to rely on when
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`attempting to bill or collect for medical services. Specific representations are made to physicians
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`and patients alike regarding the “usual and customary” payments made to health care providers.
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`11.
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`After Plaintiff would render medical services to Defendants’ patient members,
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`they would submit a claim to the Defendant for payment to Plaintiff. At various times,
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`Defendant would incorrectly deny a properly presented “clean” claim, at other times they would
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`not pay a properly presented claim in agreement with the contracted rate, at other times they
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`would not pay the penalty if they failed to timely pay the claim pursuant to the Prompt Payment
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`of Claims Act provisions of the Texas Insurance Code Chap. 542, et. seq., and further, at other
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`times, they failed to pay the interest on the claims pursuant to that same Prompt Payment of
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`Claims Act. Plaintiff has made numerous and repeated attempts to resolve those clean claims
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`but have not been able to resolve any of the issues sued upon. Plaintiff believes they are not only
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`entitled to the proper processing of clean claims, but to not be subjected to the improper denials
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`of clean claims. They further allege that, at a minimum and consistent with the causes of action
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`below, they are entitled to penalties for failure to make prompt payments of the claims, but also
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`interest on the unpaid claims properly and timely presented.
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`CAUSES OF ACTION:
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`12.
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`Any time it is alleged in this pleading that Defendant did an act or failed to do any
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`act or thing, it is meant that Defendant or their authorized, apparent, or ostensible agent(s),
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`employee(s), or representative(s) did such act or failed to do such act or thing, thereby making
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`Defendant liable.
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`13.
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`Plaintiff would respectfully show that
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`it
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`is entitled to recover money from
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`Defendant for negligent misrepresentation, quantum meruit, fraud, civil conspiracy promissory
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`estoppel, and/or unjust enrichment.
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`14.
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`Plaintiff re-alleges paragraphs 10 through 11 above and incorporate the same
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`herein by reference as if fully set forth here verbatim for each cause of action presented herein.
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`1. NEGLIGENTMISREPRESENTA TION
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`15.
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`Plaintiff would respectfully show that Molina, or their agents, failed to exercise
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`reasonable care or competence in communicating billing practices, claims processing, claims
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`coverage, and insurance coverage information to guide Plaintiff through the claims processing
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`and reimbursement. Plaintiff justifiably relied on this representation and suffered a pecuniary
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`loss as a result of the false information.
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`2. QUANTUMMERUIT
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`16.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to recover the usual and customary
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`charges for the medical treatment, goods, and services provided to Molina’s client based in
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`quantum meruit. In this respect, Plaintiff provided necessary medical treatment, goods, and
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`services to Molina’s clients with the express understanding that each would be compensated by
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`Molina by a negotiated or usual and customary rate. Also, Molina accepted the medical
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`treatment, goods, claims, and services from Plaintiff without objection. Molina accepted the
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`benefits of the medical treatment, goods, and services rendered by Plaintiff to Molina’s clients
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`and, as a result, thereby became liable to Plaintiff for the reasonable value thereof.
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`3. FRAUD
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`17.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to recover damages caused by Molina’s
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`fraudulent conduct. Molina knowingly made false and material representations to Plaintiff during
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`their course of business by making false promises regarding the payments to which Plaintiff was
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`entitled for medical treatment, goods, and services rendered to Defendant's clients. Defendant
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`intended that Plaintiff rely on such representations as contained within the communications.
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`Plaintiff, in fact, did rely on such false and material representations, and Plaintiff suffered injury
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`therefrom. Plaintiff seeks exemplary damages for Defendants’ fraudulent conduct.
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`4. BREACH OF CONTRACT
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`18.
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`Alternatively, Plaintiff seeks to recover as assignees of Defendants’ contractual
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`rights. Plaintiffs provided medical care and services to each of Defendants’ members, and
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`Plaintiff submitted clean claims for those services. For each of those claims for which Plaintiff
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`seeks payment from Molina, Plaintiff obtained an assignment of benefits from the member, who
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`in each case had a valid and enforceable insurance contract with Molina that required Molina to
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`pay for those services. Molina breached its obligations under its contracts with its members by
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`failing to fully and properly pay for the medical services that Plaintiff provided to Molina’s
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`members. As a direct and proximate result of Defendant’s breaches, Plaintiff, as assignees, have
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`been damaged. Plaintiff, as assignee, is entitled to recover the damages incurred as a result of
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`Molina’s failure to fully, properly, and timely pay for the medical services provided by Plaintiff,
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`including, as applicable, penalties, interest, and attomey’s fees pursuant to section 542.060 of the
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`Texas Insurance Code.
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`5. CIVIL CONSPIRACY
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`19.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that Molina conspired together to accomplish the
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`common goal of denying or underpaying medical providers in violation of law. As a result of this
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`conspiracy, Plaintiff suffered proximate damages.
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`6. PROMISSOR YESTOPPEL
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`20.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to enforcement of Molina’s promises
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`under the doctrine of promissory estoppel. Molina promised to pay Plaintiff for medical
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`treatment, goods, and services rendered to Defendant's clients based on the usual and customary
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`rate as stipulated by their publish policies and procedures along with Texas law. Plaintiff
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`reasonably and substantially relied on the promises to their detriment by providing the medical
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`treatment, goods, and services to Molina’s clients without full payment in advance. Molina
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`intended for Plaintiff to rely on these promises and Plaintiff’ s reliance was foreseeable by
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`Molina. Injustice can be avoided only by enforcing Molina’s legal duty to pay Plaintiff.
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`7. UNJUSTENRICHMENT
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`21.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to recover from Molina under the
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`theory of unjust enrichment. Molina is unjustly enriched by retaining the benefits of the medical
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`treatment, goods, and services rendered by Plaintiff. By Molina not paying for the charges
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`associated with the medical costs,
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`including paying for those charges in a timely manner,
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`Defendant profits from the money not properly spent for the services while retaining their
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`shareholders and insured under the guise of providing coverage.
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`8. INSURANCE CODEAND DECEPTIVE TRADE PRACTICESACT
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`22.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to recover from Molina under both the
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`Art. 542 of the TEXAS INSURANCE CODE (Processing and Settlement of Claims) and the
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`DTPA tie-in.
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`23.
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`The DTPA and ART. 542 of the TEXAS INSURANCE CODE "
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`shall be
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`liberally construed and applied to promote its underlying purposes, which are to protect
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`consumers against false, misleading, and deceptive business practices
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`" In that regard, Molina
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`has been guilty of the following false, misleading and/or deceptive acts or practices with respect
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`to the handling and denial of the claims:
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`Misrepresenting to a claimant a material
`a.
`provisions relating to coverage at issue,
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`fact or policy
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`Failing to attempt in good faith to effectuate a prompt, fair,
`b.
`and equitable settlement of a claim with respect to which the insurer's
`liability has become reasonably clear,
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`Refusing to pay a claim without conducting a reasonable
`c.
`investigation with respect to the claim,
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`Misrepresenting an insurance policy by making an untrue
`d.
`statement of material fact, failing to state a material fact, making a
`statement in such a manner as to mislead, making a material statement
`of law or failing to disclose any matter required by law to be
`disclosed, and,
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`Causing confusion or misunderstanding as to the source,
`e.
`sponsorship, approval, or certification of goods or services.
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`Each of the above and foregoing violations by Molina constitutes actionable conduct by
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`Molina in violation of the DTPA and ART. 542 of the TEXAS INSURANCE CODE for which
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`the Plaintiff brings suit in this case.
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`24.
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`The Texas Insurance Board has also adopted rules and regulations which prohibit
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`unfair practices and misrepresentations of insurance policies. Violations of these rules and
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`regulations also provide bases for causes of action pursuant to ART. 542. When this case is tried,
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`the evidence will also show that Molina has violated the following rules and regulations of the
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`Board by:
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`Misrepresenting the pertinent
`a.
`relating to coverages,
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`facts or policy provisions
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`fair
`Not attempting in good faith to effectuate prompt,
`b.
`settlement of claims
`submitted in which liability has become
`reasonably clear,
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`Failing to adopt and implement reasonable standards for
`c.
`prompt investigation of claims; and,
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`Refusing to pay claims without conducting a reasonable
`d.
`investigation based upon all available information.
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`All of the above-referenced violations of the Insurance Board rules and regulations also
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`constitute false, misleading or deceptive acts or practices in the conduct of business by Molina in
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`this case and are therefore actionable under both the TEXAS INSURANCE CODE and the
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`DTPA, for which the Plaintiff brings suit in this case.
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`25.
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`Under information and belief, all of the violations of the DTPA, the TEXAS
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`INSURANCE CODE and the Texas Board's rules and regulations were committed "knowingly"
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`by Molina, as that term is defined and applied under the laws and statutes of the State of Texas.
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`Molina has intentionally and knowingly failed to pay the Plaintiffs claims in accordance with the
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`terms of the published policies, procedures, and insurance agreements.
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`26.
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`As a direct and proximate result of Molina’s violation of the DTPA, the TEXAS
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`INSURANCE CODE, and the Texas Board's rules and regulations, the Plaintiff has suffered
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`actual damages. Since Molina acted intentionally and knowingly in committing one or more of
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`the violations of the DTPA and ART. 542 of the TEXAS INSURANCE CODE, Molina is liable
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`for three times the actual damages, for which they also bring suit. Further, suit is also brought for
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`the recovery of the Plaintiffs attorney's fees pursuant to the applicable provisions of the DTPA
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`and ART. 542 of the TEXAS INSURANCE CODE.
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`9. VIOLATION OFSECTION1301 OF THE TEXASINSURANCE CODE
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`AND TEXAS PROMPT PA YMENT OF CLAIMS A CT
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`27.
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`Alternatively, but without waiving the above, and specifically insisting on the
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`same, Plaintiff would respectfully show that it is entitled to recover damages caused by Molina
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`violation of Section 1301 of the TEXAS INSURANCE CODE by failing to comply with the
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`prompt payment requirements of the Code. The Plaintiff timely submitted a clean claim to
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`Molina according to Molina’s published policies and procedures. Molina did not pay in the
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`amounts authorized by Molina’s published policies and procedure for reimbursing medical
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`providers and the Texas Insurance Code. Therefore, Molina has violated that particular section of
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`the TEXAS INSURANCE CODE, entitling the Plaintiff to recover not only the amount of the
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`claims, but in addition, the sum of eighteen percent (18%) per annum of the amount payable,
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`together with reasonable attorney's fees which they have incurred with regard to legal
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`representation in this action against Molina, for which suit is also brought.
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`ATTORNEY’S FEES
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`28.
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`Due to Molina’s refusal to pay Plaintiff the monies due for necessary medical
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`treatment, goods, and services provided to Molina’s client, Plaintiff has been required to employ
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`the services of the undersigned attorney. Plaintiff is entitled to recover their reasonable attorney's
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`fees and costs pursuant to TEX. CIV. PRAC. & REM. CODE§ 38.001(8), which amounts will be
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`stated at such time as they can be determined, and for which amounts Plaintiff prays for
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`judgment.
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`RIGHT TO AMEND
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`29.
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`Plaintiff specif1cally reserve the right to amend these pleadings upon pretrial
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`discovery, order of the Court, or as counsel may agree.
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`CONDITIONS PRECEDENT
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`30.
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`All conditions precedent have occurred or are excused.
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`NOTICE OF REQUIRED INITIAL DISCLOSURE
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`31.
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`Under Rule 194 of the Texas Rules of Civil Procedure, Plaintiff notifies
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`Defendants of their duty disclose, within 30 days of the service of this request, the information or
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`material described in Rule 194.2, 194.3, and 194.4.
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`RULE 193.7 NOTICE
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`32.
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`Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby
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`give notice that all documents produced by Defendants in response to discovery authenticate the
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`documents for use in all pretrial and trial proceedings.
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`PRAYER
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`WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be
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`cited to appear and answer and, that upon final trial hereof, Plaintiff have judgment against
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`Defendant for:
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`a.
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`actual damages,
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`b. exemplary damages,
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`c.
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`reasonable and necessary attorney's fees incurred by Plaintiff in prosecuting their
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`breach of contract causes of action against Defendant, through trial and all levels
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`of appeal, if necessary,
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`d. prejudgment interest on actual damages at the highest legal rate,
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`e.
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`all costs of Court expended in the pursuit of this action,
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`f.
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`post-judgment interest at the highest legal rate, and monetary relief, including
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`damages of any kind, penalties, costs, expenses, prejudgment
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`interest, and
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`attorney fees,
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`g.
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`and such other and further relief, general or special, legal or equitable, to which
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`Plaintiff may show himselfjustly entitled and which the Court deems appropriate.
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`Respectfully submitted,
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`5 :\.
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` By:
`Michael D. Clay
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`Texas Bar No. 04331750
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`Email: MichaelDClay@yahoo.com
`P. O. Box 540784
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`Houston, Texas 77254
`Ph: (713) 530—3433
`Fax: (888) 728-1020
`Attorney for VitaCare Family Services, PLLC
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