MATHEWS v. INDEMNITY INSURANCE CO. OF NORTH AMERICA Plaintiff's Original Petitioin & Jury Demand

8/7/2019 MATHEWS v. INDEMNITY INSURANCE CO. OF NORTH AMERICA Plaintiff's Original Petitioin & Jury Demand

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JAMES MATHEWS,Plaintiff

Filed10 october 14 P3:07Amalia Rodriguez-MendozDistrict CIeri


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(including payments to be made for the benefit of Mr. Mathews for care to be rendered in TravisCounty) were required to be made in Travis County, Texas. Further, investigation, includingcommunications to and from Defendant and Mr. Mathews' healthcare providers, occurred inTravis County Texas.6. Mr. Mathews sues for damages in excess of $125,000, and jurisdiction is proper in thisCourt.

IV. Factual Backg.ound7. This suit is necessary to collect a legal debt and damages due and owing Mr. Mathewsbecause of Defendant's wrongful acts in handling of his claim for an on the job injury for whichworkers' compensation benefits were disputed and later paid only after on order of the TexasDepartment of Insurance-Division of Workers' Compensation, DWC.8. Mr. Mathews, a loyal and hardworking employee of Midwestern Services Inc., was injuredwhile working on the job on October 14, 2008.9. Rather than properly investigate Mr. Mathews' injuries to ensure Mr. Mathews would receivethe income and other benefits to which he was entitled as a beneficiary of the workers'compensation promised to the employees of Midwestern Services Inc., without reasonable basis,INDEMNITY INSURANCE COMPANY OF NORTH AMERICA chose to continue to denytimely payment of insurance benefits. INDEMNITY INSURANCE COMPANY OF NORTHAMERICA filed a denial of benefits on October 30,2008 in a DWC Form PLN-l Notice of Denialof Compensability/Liability and Refusal to Pay Benefits, dated October 30, 2008. As a result, Mr.Mathews was forced to hire and pay a lawyer to help his secure the workers' compensationbenefits to which he was entitled. After proceeding through all the necessary administrativeproceedings before the Texas Department of Insurance-Division of Workers' Compensation, Mr.

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Mathews was able to secure a binding final determination from the Texas Department ofInsurance, Division of Workers' Compensation, ordering payment of the long overdue benefitsthrough the Contested Case Hearing Decision and Order, signed September 2, 2009 and filedSeptember 3, 2009.10. Unfortunately, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S delayand imposition of severe economic distress and delayed medical treatment had reasonablyanticipated consequences on Mr. Mathews from which he is still fighting to recover. Given therepeated delays of payment for his necessary income and other benefits, Mr. Mathews has beensubjected to significant economic impact, worry, distress, and continuing economic and physicaldamage. In addition, Mr. Mathews has suffered financial harm and damage to his credit as a resultof INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S denial and repeateddelays.11. The significant effect of Defendant's wrongful and unjustified delay is still uncompensated.

V. FIRST CAUSE OF ACTION--Violations of Texas Insurance Code12. Plaintiff JAMES MATHEWS realleges and incorporates each allegation contained inParagraphs 1--15 of this Petition as if fully set forth herein.13. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to attempt toeffectuate a prompt, fair, and equitable settlement of a claim with respect to which liability hasbecome reasonably clear, in violation of Texas Insurance Code Section 541.060 (a)(2)(A)(formerly Art. 21.21 4(l0)(ii.14. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to adopt andimplement reasonable standards for prompt investigation of claims arising under its policies.15. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to provideOriginal Petition James Mathews

Case 1:11-cv-00228-SS Document 1-1 Filed 03/24/11 Page 5 of 28


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promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of aclaim, in violation of Texas Insurance Code Section 541.060 (a)(3) (formerly Art. 21.214( 10)(iv)).16. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA refused to pay a claimwithout conducting a reasonable investigation with respect to the claim, in violation of TexasInsurance Code Section 54l.060(a)(7) (formerly Art. 2l.21 4(10)(vii)).17. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented theinsurance policy under which it affords workers' compensation coverage to Mr. Mathews, bymaking an untrue statement of material fact, in violation of Texas Insurance Code Section541.061 (l)(formerly Art. 2l.21 4(11)(a.18. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented theinsurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICAaffords workers' compensation coverage to Mr. Mathews, by failing to state a material fact that isnecessary to make other statements made not misleading, in violation of Texas Insurance Code

Section 541.061(2) (formerly Art. 21.21 4(1l)(b)).19. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented theinsurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICAaffords workers' compensation coverage to Mr. Mathews, by making a statement in such manneras to mislead a reasonably prudent person to a false conclusion of material fact, and failing todisclose a matter required by law to be disclosed, in violation of Texas Insurance Code Section541.061(3) (formerly Art. 21.21 4(11)(c) and Texas Insurance Code Section 541.002(1) (formerlyArt. 21.21 4(11)(e)).20. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA knowingly committed the




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foregoing acts, with actual knowledge of the falsity, unfairness, or deception of the foregoing actsand practices, in violation of Texas Insurance Code Section 54l.002(1) (formerly Art. 2l.212(c)).

VI. SECOND CAUSE OF ACTION-Breach of Duty of Good Faith & Fair Dealing2l. Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--20 of thePetition as if fully set forth herein.22. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as Mr. Mathews'workers' compensation insurer, had a duty to deal fairly and in good faith with Mr. Mathews in theprocessing of the workers' compensation claim. INDEMNITY INSURANCE COMPANY OFNORTH AMERICA breached this duty by refusing to properly investigate and effectively denyingnecessary income and other benefits. INDEMNITY INSURANCE COMPANY OF NORTHAMERICA knew or should have known that there was no reasonable basis for denying or delayingthe required benefits. As a result of INDEMNITY INSURANCE COMPANY OF NORTHAMERICA'S breach of these legal duties, Mr. Mathews suffered legal damages including

damages pursuant to Texas Labor Code Section 416.002.VII.THIRD CAUSE OF ACTION-Punitive Damages for Bad Faith

23. Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--22 of thisPetition as iffully set for herein.24. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA acted fraudulently andwith malice (as that term is legally defined) in denying Mr. Mathews' claim for workers'compensation benefits. Defendant's conduct when viewed objectively from its standpoint at thetime of its occurrence involved an extreme degree of risk to Mr. Mathews, considering theprobability and magnitude of the potential harm to Mr. Mathews. Further, Defendant had actual,




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subjective awareness of the risk involved, but nevertheless proceeded with conscious indifferenceto the rights, safety, or welfare ofMr. Mathews.

VIII. FOURTH CAUSE OF ACTION-Violations of Texas DTPA25. Plaintiff Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--24 of this Complaint as if fully set forth herein.26. The Deceptive Trade Practices Consumer Protection Act (DTPA) provides additionalprotections to consumers who are victims of deceptive, improper, or illegal practices. Defendant'sviolations of the Texas Insurance Code create a cause of action under the DTPA Defendant'sviolations of the Texas Insurance Code, as set forth herein, specifically violate the DTPA as well.

IX. RESULTING LEGAL DAMAGES27. Mr. Mathews is entitled to the actual damages resulting from the Defendant's violations ofthe law. These damages include the consequential damages to his economic welfare from thewrongful denial and delay of benefits; the mental anguish and physical suffering resulting fromthis wrongful denial of benefits, and continued impact on the medical evaluation, treatment, and

final prognosis; and the other actual damages permitted by law. In addition, Mr. Mathews isentitled to exemplary damages including but not limited to Texas Labor Code Section 416.002.28. As a result of Defendant's acts and/or omissions, Plaintiff has sustained damages in excess ofthe minimum jurisdictional limits of this Court.29. Plaintiff is entitled under law to the recovery of prejudgment interest at the maximum legalrate.30. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S knowing violations ofthe DTPA entitle Mr. Mathews to the attorneys' fees, treble damages, quadruple damages underSection 416.002, above, and other penalties provided by law.Original Petition James Mathews

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PRAYER

31. WHEREFORE, PREMISES CONSIDERED, Plaintiff, James Mathews, respectfully praysand requests that Plaintiff have judgment against Defendant for actual damages in excess of theminimum jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowedby law, costs of suit, and all other relief, at law or in equity, to which JAMES MATHEWS may beentitled.

I, A M A L IA R O D R I G U E Z -M E N D O Z A , D is t r ic t C l e r k ,T r a v i s C ou n t y , T e x a s , d o h e r e b y c e r i i f y t h a tt h i si s a t r u e a n d c o r r e c t c o p y a ss a m e a p p e a r s o fr e c o r d in m y o f f i c e . W i tn e s s r : J . h a n d a n d s e a lo f o f f i c e o n -3 ' J - .

A M A L IA R O D R IG U E Z - M E N D O Z AD IS T R IC T C L E R K

Respectfully submitted,J /1/1,/!;1 ,1 .tl/'~ /'jlL L-/~

BRADLEY DEAN McCLELLANOf Counsel, Law Offices of Richard Pena, P.C.State Bar No. 133959801701 Directors Blvd. Suite 110Austin, Texas 78744(512) 327-6884 telephone(512) 327-8354 [email protected] for James Mathews. Plaintiff

Original Petition James Mathews 7


MATHEWS v. INDEMNITY INSURANCE CO. OF NORTH AMERICA Plaintiff's Original Petitioin & Jury Demand

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