FILED IN THE SUPREME COURT OF TEXAS 13 February 19 P3:59 BLAKE. A. HAWTHORNE No. ______CLERK ______
IN THE SUPREME COURT OF TEXAS
______
In re Everest National Insurance Company, Gallagher Bassett Services, Inc. and Cheryl Verge
______
Respondent: Hon. Bill Henry True Parties in Interest: Joseph and Amanda Ruiz ______
On Mandamus from the Third Court of Appeals Austin, Texas No. 03-12-00750-CV Cause No. 12-1593 In the 274th Judicial District Court Hays County, Texas ______
ORIGINAL PETITION FOR WRIT OF MANDAMUS ______
Deanne C. Ayers State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 AYERS & AYERS Ayers Plaza 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817-267-9009; 817-318-0663 (fax) ATTORNEYS FOR RELATORS
IDENTIFICATION OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a complete list of the parties to the trial court's final judgment, as well as the names and addresses of their trial and appellate counsel:
DEFENDANTS/RELATORS: EVEREST NATIONAL INSURANCE CO.; GALLAGHER BASSETT SERVICES, INC.; and CHERYL VERGE
Trial and Appellate Counsel: Deanne C. Ayers State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817-267-9009; 817-318-0663 Facsimile
JUDGE/RESPONDENT Hon. Bill Henry State Bar No. 09486700 428th Judicial District Court Hays County Government Center 712 Stagecoach Trail, Third Floor San Marcos, Texas 78666 512-393-7700
PLAINTIFF/REAL PARTY IN INTEREST: JOSEPH RUIZ and AMANDA RUIZ
Trial and Appellate Counsel: Joe K. Longley Texas Bar No. 12542000 1609 Shoal Creek Blvd., Suite 100 Austin, Texas 78701 512-477-4444; 512-477-4470 facsimile
and
i Ethan L. Shaw Texas Bar No. 18140480 John P. Cowart Texas Bar No. 04919500 1609 Shoal Creek Blvd. Suite 100 Austin, Texas 78701 512-499-8900; 512-320-8906 facsimile
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...... i
TABLE OF CONTENTS ...... iii
INDEX OF AUTHORITIES ...... v
STATEMENT OF THE CASE ...... 2
STATEMENT OF JURISDICTION...... 4
ISSUES PRESENTED ...... 4
STATEMENT OF FACTS ...... 5
SUMMARY OF THE ARGUMENTS ...... 6
ARGUMENT AND AUTHORITIES ...... 7 Issue Number One: Respondent Abused Discretion In Ordering Production Of Attorney-Client Privileged Communications ...... 7 A. Standard of Review ...... 8 B. The Trial Court Erred in Striking Florence Baker’s Affidavit in its Entirety ...... 9 C. The Trial Court Erred in Ordering Production of Attorney Client Communications ...... 10 PRAYER ...... 15
VERIFICATION ...... 16
CERTIFICATE OF COMPLIANCE ...... 17
CERTIFICATE OF SERVICE ...... 18
iii APPENDIX ...... 19
1. Plaintiff’s Third Amended Original Petition (September 25, 2012);
2. Plaintiffs’ First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery (September 25, 2012);
3. Defendants’ Response to Plaintiffs’ First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery (October 8, 2012);
4. Plaintiffs’ Objections to Florence Baker Affidavit (October 9, 2012);
5. Defendants’ Response to Plaintiffs’ Objections to Florence Baker Affidavit (October 12, 2012);
6. Defendants’ In Camera letter and documents (October 29, 2012 letter to Judge Henry only – a Motion is being filed with the Court of Appeals requesting that it release to the Supreme Court the attachments of documents reviewed in camera which were submitted separately in a sealed envelope);
7. Order (October 16, 2012);
8. Order (November 1, 2012);
9. Transcript of October 16, 2012 hearing;
10. Notice of Filing – Defendant Gallagher Bassett Services, Inc.'s Objections and Responses to Plaintiffs' Request for Production and Response to Request for Privilege Log (November 9, 2012);
11. Order of Court of Appeals granting Emergency Stay (November 15, 2012);
12. Opinion of Court of Appeals (January 18, 2013).
iv INDEX OF AUTHORITIES
CASES Page
Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995) ...... 13
Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) ...... 10
In re American Zurich Ins. Co., No. 01-11-00816-CV, 2012 WL 2923200 (Tex. App. – Houston [1st Dist.] July 12, 2012) ...... 14
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) ...... 9
In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998) ...... 9
In re DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) ...... 11
In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006) ...... 4, 8
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) ...... 8
In re WHMC, 996 S.W.2d 409 (Tex. App. – Houston [14th Dist.] 1999)(orig. proceeding) ...... 11
In re XL Specialty Insurance Co., 2012 WL 2476851 (Tex. June 29, 2012) ...... 8, 12
Marathon Oil Co. v. Moye, 893 S.W.2d 585 (Tex. App. – Dallas 1994)(orig. proceeding) ...... 11
Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749 (Tex. 1991) ...... 13
Priesmeyer v. Pacific Sw. Bank, 917 S.W.2d 937 (Tex. App.—Austin 1996, no writ) ...... 10
Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299 (Tex. App. – Houston [14th Dist.] 1987, writ ref’d n.r.e.) ...... 10
Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402 (Tex. App. – El Paso 1994, writ denied) ...... 11
v CASES (Con't.) Page
Texas Mut. Ins. Co. v. Morris, 2012 WL 5275467 (Tex. Oct. 26, 2012) ...... 14
Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012)...... 14
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ...... 9
Weisel Enters., Inc. v. Curry, 718 S.W.2d 56 (Tex. 1986) ...... 11
RULES Page
Texas Rule of Civil Procedure 193.3(c) ...... 15
Texas Rule of Evidence 503(b) ...... 12
vi No. ______
IN THE SUPREME COURT OF TEXAS
______
In re Everest National Insurance Company, Gallagher Bassett Services, Inc. and Cheryl Verge
______
Respondent: Hon. Bill Henry True Parties in Interest: Joseph and Amanda Ruiz ______
On Mandamus from the Third Court of Appeals Austin, Texas No. 03-12-00750-CV Cause No. 12-1593 In the 274th Judicial District Court Hays County, Texas ______
ORIGINAL PETITION FOR WRIT OF MANDAMUS
______
TO THE HONORABLE SUPREME COURT OF TEXAS:
EVEREST NATIONAL INSURANCE COMPANY, GALLAGHER
BASSETT SERVICES, INC., and CHERYL VERGE, Relators, file the following
Original Petition for Writ of Mandamus.
1 I.
STATEMENT OF THE CASE
The True Party in Interest brought the underlying suit seeking to recover for the alleged bad faith in the handling of Joseph Ruiz’ workers’ compensation claim.
The underlying suit, styled Joseph Ruiz and Amanda Ruiz v. Everest National
Insurance Company, Gallagher Bassett Services, Inc., and Cheryl Verge, Cause
No. D-1-GN-12000705, was filed on March 9, 2012, in the 345th Judicial District
Court of Travis County, Texas, which was later transferred to Cause No. 12-1593, in the 274th Judicial District Court of Hays County (hereinafter referred to as the
“Underlying Suit”). The Underlying Suit asserts causes of action for violations of the Texas Insurance Code and Texas Deceptive Trade Practices Act. See
Appendix 1.
On September 25, 2012, the Real Parties in Interest filed a First Amended
Special Exceptions; Motion for Protective Order and Motion to Compel Discovery seeking, in part, the attorney client communications between Defendants and their attorney in the administrative proceedings. See Appendix 2. Relators objected to production of attorney client communications and served a Privilege Log setting forth each claim note containing privileged communications. See Appendix 10.
Relators filed Defendants’ Response to Plaintiffs’ First Amended Special
2 Exceptions; Motion for Protective Order and Motion to Compel Discovery on
October 8, 2012. See Appendix 3. Plaintiff filed Plaintiffs’ Objections to Florence
Baker Affidavit filed on October 9, 2012. See Appendix 4. Defendants filed
Defendants’ Response to Plaintiff’s Objections to Florence Baker’s Affidavit on
October 12, 2012. See Appendix 5.
Respondent is Hon. Bill Henry, Judge of the 428th District Court of Hays
County, Texas. Relators seek relief from the written order granting Plaintiff’s
Objections to the Affidavit of Florence Baker on October 16, 2012, and the written order granting Plaintiff’s Motion to Compel signed by Respondent on November 1,
2012, following the October 16, 2012, hearing and subsequent in camera inspection of documents. See Appendix 6, 7, and 8. The Transcript from the
October 16, 2012, hearing is attached hereto as Appendix 9.
Relators filed an Emergency Petition for Writ of Mandamus on
November 13, 2012. The Third Court of Appeals granted the motion for emergency relief and subsequently denied the Emergency Petition for Writ of
Mandamus on January 18, 2013, without hearing oral argument. See Appendix 11 and 12; No. 03-12-00750-CV, 2013 WL 238728 (Tex. App. – Austin January 18,
2013). Justice David Puryear authored the opinion, which was joined by Justice
Pemberton and Justice Rose. No Motion for Rehearing or Motion for En Banc
3 Consideration was filed. Everest National Insurance Company, Gallagher Bassett
Services, Inc., Cheryl Verge, Joseph Ruiz, Amanda Ruiz and Hon. Bill Henry were parties to the Court of Appeals proceeding. Specifically, Relators request that the
Texas Supreme Court compel the Honorable Bill Henry to set aside his October
16, 2012, order granting Plaintiffs’ Objections to the Affidavit of Florence Baker and his November 1, 2012, order granting Plaintiffs’ Motion to Compel as to the privileged attorney-client communications, and enter an order denying the Motion to Compel as to the privileged communications.
II.
STATEMENT OF JURISDICTION
The Supreme Court of Texas has jurisdiction over this appeal under
Sections 22.002 et seq. of the Texas Government Code. Issuance of the writ is proper when a trial court erroneously orders the production of confidential information or privileged documents because an appeal is an inadequate remedy.
In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006).
III.
ISSUES PRESENTED
Issue Number One:
Respondent Abused Discretion In Ordering Production Of Attorney-Client Privileged Communications
4
A. Standard of Review
B. The Trial Court Erred in Striking Florence Baker’s Affidavit in its Entirety
C. The Trial Court Erred in Ordering Production of Attorney Client Communications
IV.
STATEMENT OF FACTS
This lawsuit involves a request for mandamus consideration over the issuance of an order compelling the production of attorney client communications.
The True Parties in Interest filed suit seeking to recover damages relating to the alleged bad faith in the handling of Joseph Ruiz’ workers’ compensation claim.
See Appendix 1. The central question relates to whether the Trial Court properly ordered production of the attorney-client communications when the communications themselves establish the attorney-client privilege and there was no showing of dissemination of the documents to any third party. See Appendix 6 and 7.
Real Party in Interest, Joseph Ruiz, filed a workers’ compensation claim, and the parties participated in an administrative hearing to determine whether
Mr. Ruiz sustained a compensable injury. See attachment to Plaintiff’s Third
Amended Original Petition in Appendix 1. The insurance carrier was represented
5 by Robin Lowenkron, attorney at the administrative level. See attachment to
Plaintiff’s Third Amended Original Petition in Appendix 1. The affidavit of
Florence Baker filed with Defendants’ Response to Plaintiffs’ First Amended
Special Exceptions; Motion for Protective Order and Motion to Compel Discovery contained language confirming that Robin Lowenkron with Smith & Carr was the attorney representing the Defendants’ interests. See Appendix 3, Exhibit B.
Ms. Baker’s affidavit further stated that Defendants believed their communications with their attorney were privileged communications. See Appendix 3, Exhibit B.
In separate affidavits, Ms. Baker and a representative from the employer verified under oath that the employer did not have access to review claim notes. See
Appendix 3, Exhibits C and D. All privileged communications at issue were contained in the claim notes.
V.
SUMMARY OF THE ARGUMENT
Relators maintain that the Trial Court abused its discretion in striking the affidavit of Florence Baker in its entirety. Ms. Baker’s affidavit identified that she was the supervisor over Real Party in Interest Joseph Ruiz’ workers compensation claim and that Robin Lowenkron acted as Relators attorney. Ms. Baker’s affidavit
6 provided the foundation for her opinion. As such, it was improper to wholly strike
Ms. Baker’s affidavit.
Finally, Relators assert that the Trial Court abused its discretion in ordering production of the attorney-client privileged communications. The documents were provided to the Trial Court for an in camera inspection. The face of the documents themselves establish that they are privileged communications between Ms.
Lowenkron and the Relators. The affidavits of Florence Baker and Adele Vincent establish that the employer did not have access to review these communications.
In that there is no evidence that the attorney-client privileged communications were disseminated to any third party, the Trial Court erred in ordering production of the privileged communications. Accordingly, Relators request the Supreme
Court to direct Respondent to rescind his order requiring Relators to produce all attorney-client communications.
VI.
ARGUMENT AND AUTHORITIES
Issue 1: Respondent Abused Discretion in Ordering Production of Attorney-Client Privileged Communications
The Real Parties in Interest filed suit seeking damages arising out of the handling of Joseph Ruiz’ workers’ compensation claim. See Appendix 1. The
Real Parties in Interest moved to compel the production of attorney-client
7 communications between Relators and their attorney, Robin Lowenkron of Smith
& Carr. Following a hearing on The Real Parties in Interest’s Motion to Compel, the attorney-client communications were produced for an in camera inspection by the Court. On November 1, 2012, Respondent entered an order compelling production of these privileged communications.
Unlike the Texas Supreme Court decision of In re XL Specialty Insurance
Co., 2012 WL 2476851 (Tex. June 29, 2012), the attorney-client communications were not shared with third parties. The face of the documents reflect that the communications are between the Relators and their attorney. In that there was no showing that there was a breach of confidentiality, the trial court erred in ordering production of Relators’ attorney-client communications.
A. Standard of Review
Mandamus relief is available when a trial court abuses its discretion in issuance of a discovery order and there is no other adequate remedy at law.
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)(orig. proceeding). An appeal is not an adequate remedy when a trial court issues an order compelling production of confidential or privileged communications. In re Ford Motor Co., 211 S.W.3d
295, 298 (Tex. 2006).
8 A trial court abuses its discretion when the trial court failed to correctly analyze or apply the law or if the trial court’s actions were so arbitrary and unreasonable to constitute a clear and prejudicial error of law. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)(per curiam)(orig. proceeding). Abuse of discretion occurs when a trial court acts without reference to guiding rules and principles or when it fails to analyze or apply the law correctly. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998)(orig. proceeding); Walker v. Packer, 827 S.W.2d at 840. Specifically, the Walker v.
Packer decision held that an order for disclosure of privileged communications is subject to mandamus review as disclosure of the privileged communications cannot be corrected on appeal. Walker v. Packer, 827 S.W.2d at 843.
B. The Trial Court Erred in Striking Florence Baker’s Affidavit in its Entirety.
Relators filed an affidavit of Florence Baker to support, in part, their claim of privilege in response to the Real Parties in Interest’s Motion to Compel. Ms.
Baker’s affidavit set forth that she is the supervisor over Joseph Ruiz’ workers’ compensation claim and that the facts contained in the affidavit were based on her personal knowledge. Such facts provide foundation for her statements that Robin
Lowenkron was the attorney representing the Defendants’ interests at the administrative level and that Relators believed their communications would be
9 privileged. The Trial Court erred in granting Plaintiffs’ Objections to the Affidavit of Florence Baker.
Ms. Baker’s affidavit positively establishes on its face that the facts contained in the affidavit are based on her own personal knowledge given her role as a supervisor over this claim. See Appendix 3; Humphreys v. Caldwell, 888
S.W.2d 469, 470 (Tex. 1994); Priesmeyer v. Pacific Sw. Bank, 917 S.W.2d 937,
939 (Tex. App.—Austin 1996, no writ). Texas caselaw has held that identification of job title is sufficient to establish personal knowledge. Requipco, Inc. v. Am-Tex
Tank & Equip., Inc., 738 S.W.2d 299, 300 (Tex. App. – Houston [14th Dist.] 1987, writ ref’d n.r.e.). Ms. Baker’s affidavit specifically stated that she was familiar with Mr. Ruiz’ workers’ compensation claim as a supervisor over his claim. See
Appendix 3. Her identification of the dates that events occurred and the identification of Relators’ administrative lawyer are not conclusory, and foundation for such statements is based on her employment. See Appendix 3.
Therefore, the Trial Court erred in striking Florence Baker’s affidavit in its entirety.
C. The Trial Court Erred in Ordering Production of Attorney Client Communications.
Regardless of the error in striking Ms. Baker’s affidavit, the Texas Supreme
Court has held that the documents themselves may establish the prima facie
10 showing of the attorney-client privilege. Weisel Enters., Inc. v. Curry, 718 S.W.2d
56, 58 (Tex. 1986). In the case at bar, the Trial Court did conduct an in camera inspection of the electronic claim note entries over which the attorney-client privilege is asserted. See Appendix 6, Exhibit A contained in sealed envelope.
The documents themselves establish that they are communications between
Relators and their attorney. Relators made a prima facie showing of the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” In re DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.
2004)(quoting Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407
(Tex. App. – El Paso 1994, writ denied). This meets the prima facie showing to raise the attorney-client privilege.
Once such a prima facie showing is made, the burden then shifts to party seeking the discovery to establish a waiver of such privilege. In re WHMC, 996
S.W.2d 409, 411 (Tex. App. – Houston [14th Dist.] 1999)(orig. proceeding);
Marathon Oil Co. v. Moye, 893 S.W.2d 585, 591 (Tex. App. – Dallas 1994)(orig. proceeding). No such waiver exists in the Record. In fact, the only evidence regarding dissemination of the privileged communications confirms that the documents were not disseminated. See Appendix 3, Exhibits C and D. The Trial
Court’s November 1, 2012, order appears to have erroneously placed the burden of
11 proof on Relators to establish the absence of waiver by voluntary disclosure. See
Appendix 8, numbered paragraph 1. Thus, there is error on the face of the record.
The facts of this matter differ significantly from the facts of the recent Texas
Supreme Court decision of In re XL Specialty which held the attorney-client privilege did not apply to communications between the insurance company’s administrative attorney and the insured employer. 2012 WL 2476851 (Tex. June
29, 2012). In this matter, the employer’s representative, signed an affidavit confirming that she did not have access to the claim notes. See Appendix 3,
Exhibit D. This was further confirmed by a second affidavit of Florence Baker, over which no objection was lodged. See Appendix 3, Exhibit C. Thus, In re XL
Specialty is not controlling in this matter.
The Trial Court’s order for the production of these attorney-client privileged communications is without legal support and is not grounded on any guiding principles. Texas Rule of Evidence 503(b) provides:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.
The documents contained in Exhibit A of the in camera submission are attorney client communications and notations of attorney client communications reflecting legal advice, services and communications rendered for the purpose of
12 assisting Relators in the handling of Mr. Ruiz’ workers’ compensation claim. See
Appendix 6, Exhibit A contained in sealed envelope for in camera review.
However, the Trial Court did not explain the basis upon which he ordered production of these privileged communications.
Protection of the attorney client privilege is vital to allow for a free flow of information between the attorney and the client without fear of disclosure. Ford
Motor Co. v. Leggat, 904 S.W.2d 643, 647 (Tex. 1995). The privilege remains beyond the conclusion of the litigation. Owens-Corning Fiberglas Corp. v.
Caldwell, 818 S.W.2d 749 (Tex. 1991). Additionally, as an injured worker is entitled to lifetime medical care for reasonable and necessary treatment of the compensable injury, the administrative claims handling of Mr. Ruiz’ claim has not concluded.
It is undisputed that Robin Lowenkron with Smith & Carr represented the
Relators with regard to Mr. Ruiz’ workers’ compensation claim. See Appendix 1,
Plaintiffs’ Third Amended Petition, Exhibit A (Contested Case Hearing decision and order); and Appendix 3, Defendants’ Response to Plaintiffs’ First Amended
Special Exceptions, Motion for Protective Order, and Motion to Compel
Discovery, Exhibit B (Affidavit of Florence Baker). As Relators made a prima facie showing of the privilege and given the absence of any showing of waiver of
13 the attorney-client privilege in the Record, the Trial Court abused its discretion by acting without guiding principles and failing to appropriately analyze and apply the law. The Trial Court’s order compelling production of Relators’ attorney client privileged communications should be overturned.
Furthermore, the attorney client communications have no relevance and are not likely to lead to admissible evidence given the Supreme Court decisions in
Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), and Texas Mut. Ins.
Co. v. Morris, 2012 WL 5275467 (Tex. Oct. 26, 2012). In that the only remaining viable causes of action in a workers’ compensation improper claims handling lawsuit are for misrepresentation of a policy term to the injured worker and for unconscionable conduct under the Deceptive Trade Practices Act, the attorney client communications between Relators and their attorney would clearly not lead to admissible evidence relative to a such causes of action. See e.g. In re American
Zurich Ins. Co., No. 01-11-00816-CV, 2012 WL 2923200 (Tex. App. – Houston
[1st Dist.] July 12, 2012). Communications between Relators and their attorney would not establish a misrepresentation of a policy term to the Real Parties in
Interest and would not show that Relators took advantage of the Real Parties in
Interest to a grossly unfair degree based on the Real Parties in Interest’s lack of knowledge, experience or capacity.
14 Finally, to the extent the Trial Court’s order for production of the attorney- client privileged communications is based on a claimed deficient Privilege Log, the trial court abused its discretion by ordering production of the attorney client communications without affording an opportunity to supplement the Privilege Log.
Relators’ Privilege Log identified the name of the author of the claim note, the date and time of the claim note and identified that the claim notes were withheld based on the attorney-client privilege. See Appendix 10. Thus, the Privilege Log was sufficient to make the Real Parties in Interest aware of the claimed privilege, and the Real Parties in Interest did request the Court to examine the claimed privilege.1
PRAYER
For these reasons, Relators, Everest National Insurance Company, Gallagher
Bassett Services, Inc., and Cheryl Verge request that this Court grant review in this case, request briefs from the parties, set for oral argument, and after argument, issue a writ of mandamus directed to Respondent commanding him to rescind his order striking the affidavit of Florence Baker and the order requiring Relators to produce their attorney-client communications, and for such other and further relief to which they may be entitled.
1 Furthermore, Texas Rule of Civil Procedure 193.3(c) negates the obligation to list attorney client communications which relate to the litigation between the parties.
15 Respectfully submitted,
Ayers & Ayers
BY:~~ Deanne C. Ayers State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 AYERS & AYERS Ayers Plaza 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817-267-9009; 817-318-0663 (fax) ATTORNEYS FOR RELATORS
VERIFICATION
SIGNED under oath before me on February 18,2013.
Notary Pub c, State of Texas
16 CERTIFICATE OF COMPLIANCE
I hereby certify the number of words in the foregoing document to be counted in compliance with Rule 9.4(i)( 1) is 2,342, according to the word count of the computer program used to prepare the document.
17 CERTIFICATE OF SERVICE
A copy of this notice is being filed with the Clerk of the Supreme Court in accordance with rule 25.1 (e) of the Texas Rules of Civil Procedure. I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by certified mail, return receipt requested on this the 19th day of February, 2013.
Hon. Bill Henry VIA CERTIFIED MAIL, RRR 428th Judicial District Court NO 7010 0290 0003 0766 3851 Hays County Government Center 712 Stagecoach Trail, Third Floor San Marcos, Texas 78666 Judge/Respondent
Joe K. Longley VIA CERTIFIED MAIL, RRR 1609 Shoal Creek Blvd., Suite 100 NO. 70100290000307663868 Austin, Texas 78701 Counsel for Plaintiff/Real Party in Interest
Ethan L. Shaw VIA CERTIFIED MAIL, RRR John P. Cowart NO. 7010 0290 0003 07663875 1609 Shoal Creek Blvd. Suite 100 Austin, Texas 78701 Counsel for Plaintiff/Real Party in Interest
18 APPENDIX
1. Plaintiff’s Third Amended Original Petition (September 25, 2012);
2. Plaintiffs’ First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery (September 25, 2012);
3. Defendants’ Response to Plaintiffs’ First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery (October 8, 2012);
4. Plaintiffs’ Objections to Florence Baker Affidavit (October 9, 2012);
5. Defendants’ Response to Plaintiffs’ Objections to Florence Baker Affidavit (October 12, 2012);
6. Defendants’ In Camera letter and documents (October 29, 2012 letter to Judge Henry only – a Motion is being filed with the Court of Appeals requesting that it release to the Supreme Court the attachments of documents reviewed in camera which were submitted separately in a sealed envelope);
7. Order (October 16, 2012);
8. Order (November 1, 2012);
9. Transcript of October 16, 2012 hearing;
10. Notice of Filing – Defendant Gallagher Bassett Services, Inc.'s Objections and Responses to Plaintiffs' Request for Production and Response to Request for Privilege Log (November 9, 2012);
11. Order of Court of Appeals granting Emergency Stay (November 15, 2012);
12. Opinion of Court of Appeals (January 18, 2013).
19
Appendix 11
SEP/26/2012/WED 09: 17 AM LAW n~FICE FAX No.512 477 4470 P. 002
CAUSE NO. 12-1593
JOSEPH RUIZ AND § IN THE DISTRICT COURT OF AMANDARUIZ § PLAINTIFFS § § VS. § HAYS COUNTY, TEXAS § EVEREST NATIONAL INSURANCE § CONWANY;GALLAGHER § BASSETT SERVICES, INC.; § AND CHERYL VERGE § DEFENDANTS § 274th JUDICIAL DISTRICT
PLAINTIFFS' THIRD AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, JOSEPH RUIZ AND AMANDA RUIZ, "Plaintiffs," complaining
of Everest National Insurance Company [Everest]; Gallagher Bassett Services, Inc.
[Gallagher Bassett]; and Cheryl Verge [Verge], and for causes of action would show unto
the Court as follows:
I. Discovery ControlPlan
1. Plaintiffs intend to conduct discovery under Level 3 of Texas Rules of Civil
Procedure 190.4.
II. Parties
2. Plaintiffs are individuals who reside in Kyle, Texas.
3. Defendants have all appeared and answered. SEP/26/2012/WED 09: 18 AM LAW (lj;'FICE FAX No, 512 477 4470 p, 003
ID. Plaintiffs' Standing to Bring Suit
4. Joseph Ruiz and his spouse. Amanda Ruiz are "persons" as defmed in
§541.002, TEX. INS. CODE and "individuals" who are "consumers" as defined in
Section 17.45(5), TEX. BUS. & COM. CODE. Plaintiffs, through Joseph Ruiz's
employer. acquired the benefits of a Everest Workers' Compensation insurance policy
No. 002221-006402-WC-Ol. See Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985).
Plaintiff Joseph Ruiz is a party to the policy issued by Everest under the authority of
Southern Casualty Co. v. Morgan, 12 S. W.2d 200, 201 (Tex. 1929), Huffman v.
Southern Underwriters. 128 S.W.2d 4, 6, (Tex. 1939). It is undisputed that he was
entitled to the income benefits provided by the policy. It is likewise undisputed that such
income benefits are the community property of he and his spouse, Plaintiff Amanda Ruiz.
See Sec. 3.008(b), Texas Family Code.
IV. Exhaustion of Administrative Remedies
5. Joseph Ruiz has exhausted all of his administrative remedies and has obtained
a Contested Case Award from the WCD in Travis County. Texas that the income benefits
made the basis of his WC claim were finally adjudicated as being due and owing. See
attached Exhibit "A." That CCH Decision & Order has become fmal- hence Joseph Ruiz
has exhausted his administrative remedies before the WCD and has become entitled to the
income benefits that were originally delayed - but ultimately paid after several months of
delay.
Plaintiffs' Third Amended Original Petition 2 SEP/26/2012/WED 09: 18 AM LAW OFFICE FAX No, 512 477 4470 P. 004
V. Conduct of Defendant Chervl Verge
6. The acts and omissions of Defendant Verge were performed by her in her
individual capacity and further as an adjuster for Defendant Everest and/or Gallagher
Bassett. Such acts and omissions were within the scope of her actual, express, implied.
and/or apparent authority. See Exhibit "B."
7. Verge s statements made to the WCD in the PLN-1 resulted in the delay in
the payment of the WC income benefits to Mr. Ruiz, Her conduct and misrepresentation in
the filing of the PLN-l which misrepresented the availability of benefits under the Everest
policy was an unconscionable action or course of action under §17.4S(5) and §17.50 Tex.
Bus. & Com. Code. Further her conduct also resulted in violations of §541.061 as more
fully set forth below.
8. Under the authority of Liberty Mutual Insurance Co. v, Garrison Contractors,
Inc., 966 S.W.2d 482 (Tex. 1998) and Miller v. Keyser, 90 S.W.3d 712 (Tex. 2002), she is
individually, as well as jointly and severally, liable for the Plaintiffs' damages.
VI. Violations of Chapter 541 of the Texas Insurance Code
9. The Defendants, individually and/or collectively, have engaged in conduct
that wrongfully denied and/or unreasonably delayed payment of workers' compensation
benefits for workplace injuries sustained by the Plaintiff Joseph Ruiz, Such conduct has
resulted in damages to Plaintiffs separate and apart from benefits due under the Texas
Workers' Compensation Act. Plaintiff Joseph Ruiz was involved in a compensable injury
on March 27, 2011 and as a result of this compensable injury, his disability started on
March 28, 2011. On April 12, 2011, Everest; acting through its employee Cheryl Verge,
Plaintiffs' Third Amended Original Petition 3 SEP/26/2012/WED 09:18 AM LAW n~FICE FAX No. 512 477 4470 P. 005
filed what is known as a PLN-I (see Exhibit "B~') containing misrepresentations to the
Workers' Compensation Division ["WeD"] of the Texas Department of Insurance ["TDI"]
which was used to deny income benefits to Mr. Ruiz,
10. The misrepresentations made by the Defendants to the WeD are contained in
the PLN-l attached hereto as Exhibit "A" which stated that:
"Carrier respectfully disputes that the claimant sustained an injury/and or occupational disease in the course and scope of employment. The claimant failed to identify an incident traceable to a specific time, date or event that caused his alleged injury. The claimant failed to produce medical documents linking any damage or harm to the physical structure of his body to any alleged work related activity. Walking or standing with nothing more is a normal function of life and with nothing more does not constitute a compensable. Further, the fact that symptoms occurred during the period of employment does not mandate the conclusion that the employment was the cause of the injury. The Carrier respectfully disputes all medical and disability benefits. Carrier reserves the right to amend this controversion upon receipt of any additional information. Claimant may contact the Division of Workers' Compensation with questions regarding the filing of this document at 1-800-252-7031."
Exhibit "A" [Emphasis supplied].
11. The denial filed by the Defendants is in direct contradiction to the initial
investigation made by Everest and/or Verge as well as the reports filed by Mr. Rniz's
employer and eye witness accounts of Mr. Ruiz's co-workers at the time oftbe injury.
12. The Defendants made these statements to Plaintiffs and to the State of Texas
through the WeD in an official document denying compensability of Mr. Rniz's claim by
denying "compensability under the we insurance policy issued by Defendant Everest
National.
Plaintiffs' Third Amended Original Petition 4 SEP/26/2012/WED 09: 18 AM LAW OFFICE FAX No, 512 477 4470 p, 006
13. As a result of the foregoing, the Defendants misrepresented the insurance
policy under which Everest affords we coverage to Mr. Ruiz by (1) making an untrue
statement of material fact; (2) failing to state a material fact necessary to make other
statements made not misleading, considering the circumstances under which the statements
were made and (3) making a statement in a manner that would mislead a reasonably prudent
person through false conclusion of a material fact.
14. Such misrepresentations violate Section 541.061. Texas Insurance Code.
15. Further, the Defendants knowingly committed the foregoing acts with actual
knowledge of the falsity, unfairness; or deception of the statements being made.
16. Defendants' conduct as set forth above has been a producing cause of
damages to the Plaintiffs. These damages include economic loss, mental anguish, and all
other recoverable elements of damages, in the past and in the future. These damages are
separate and independent from the underlying physical injury made the basis of Plaintiff
Joseph Ruiz's we proceeding to obtain income benefits. Accordingly, Plaintiffs seek all
appropriate relief pursuant to Section 541.152, Texas Insurance Code.
VII. Violations of §17.45(5), Tex. Bus. & Com. Code (Unconscionable Action)
17. Defendants' conduct, to Plaintiffs' detriment, took advantage of their lack
of knowledge, ability, experience and/or capacity to a grossly unfair degree. This
unconscionable conduct was a producing cause of several months of delay in obtaining
the income benefits to which they were entitled.
Plaintiffs' Third Amended Original Petition 5 SEP/26/2012/WED 09: 18 AM LAW OFFICE FAX No, 512 477 4470 p, 007
18. Such conduct also was a producing oause of actual damages) including
economic loss, mental anguish. and all other recoverable elements of damages, in the past
and in the future. These damages are separate and independent from the underlying
physical injury made the basis of the workers' compensation proceeding to obtain income
benefits.
19. Further, the Defendants knowingly committed the foregoing acts with actual
knowledge of the falsity, unfairness. or deception of the statements being made.
20. Plaintiffs seek actual damages, exemplary damages, attorneys fees,
prejudgment and post-judgment interest and costs of court - all as may be allowed by law
in the total amount of $1,125,000 - pursuant to §17.50(a)(3); 17.50(b)(l) and 17.50(d),
DTP A or as these items may be shown at the time of trial.
VIIL Conditions Precedent and Jury Demand
21. All conditions and precedent to Plaintiffs; recovery have been performed or
have occurred. Plaintiffs respectfully demand a trial by jury.
IX. Request for Disclosure
22. Plaintiffs requests that each of the Defendants update their disclosures in
accordance with Rule 194.2(a)-(1), Tex. R. Civ. R.
X. Prayer
'WHEREFORE, PRElv1ISES CONSIDERED, Plaintiffs pray that upon final trial,
Plaintiffs recover judgment from the Defendants; individually, jointly and/or severally, as
appropriate, for the relief requested above in such amounts as the evidence may show
proper at the time of trial; together with interest thereon at the legal rate, both
Plaintiffs' Third Amended Original Petition 6 SEP/26/20!2/WED 09: 18 AM LAW nFFICE FAX No. 512 477 4470 P. 008
prejudgment and post-judgment, costs of Court, and for such other and further relief. both
general and special. at law and in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted.
LAW OFFICE OF JOE K. LONGLEY
/s/ Joe K Longley JOE K. LONGLEY Texas Bar No. 12542000 1609 Shoal Creek Blvd., Suite 100 Austin Texas 78701 Telephone: (512) 477-4444 Facsimile: (512) 477~4470
MOORE LANDREY. LLP ETHAN L. 8HAW Texas Bar No. 18140480 JOHNP. COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd., Suite 100 Austin, Texas 78701 Telephone (512) 499-8900 Facsimile (512) 320-8906
THE SOECHTING LA W FIRM: CELARLESSOECHT~G Texas Bar No. 18821300 3331 Ranch Road 12, Suite 107 San Marcos, TX 78666 Telephone (512) 396-2900
ATTORNEYS FOR PLAINTIFFS
Plaintiffs ~Third Amended Original Petition 7 SEP/26/2012/WED 09: 19 AM LAW OFFICE FAX No.512 477 4470 P. 009
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document has been served by facsimile transmission on Deanne C. Ayers. Ayers & Ayers. 4205 Gateway Drive, Ste. 100. Colleyville, Texas 76034, on this 21st day of September, 2012, in accordance with the Texas Rules of Civil Procedure.
Is/ Joe K Lon~ley JOE K. LONGLEY
Plaintiffs' Third Amended Original Petition 8 SEP /26/20 12/WED 09: 19 AM LAW nFFICE FAX No. 512 477 d470 r 0 1 0
EXHIBIT "A" SEP/26/2012/WED 09: 19 AM LAW OFFICE FAX No, 512 477 4470 r. 011
I)
CONFIDENTIAL TCII. Labor Code O-m083
TEXAS DEPARTMENT OF INSURANCE DMSION OF WORKERS' COMPENSATION TDlID'Wc AUSTIN FIELD OFFICE ~.E'CEJVe'D AUSTIN, TEXAS ocr 25 2m1 § JOSEPH R,{J1Z, C:·/~';~..ERK OFPROCEEDlNQS CLAIMANT § § § v. OOCKETNO. § AU ..11-233830-01-CC-AU42 § EVEREST NATIONAL INSURANCE § COMPANY; § CARRIER §
:PECISION AND ORDRI
This case is decided pursuant to Chapter 410 of the Texas Workers' Compensation Act and . Rules of the Dlvision of Workers' Compensation adopted thereunder.
lSSUES
A benefit review conference was hold on August 29. 2011~ 1:0 mediate resolution of the disputed issues; however, the partiea were unable to reach an agreement. A contested case hearing was held on October 24, 2011 to decide the following disputed issues:
1. Did the claimant sustain a compensable injury on March 27.2011?
2. Did the claimant have disability resulting from an injury sustained on Ms.rch 27, 2011 from March 28, 2011 through the present?
PARTms PRESENT
Claimant appeared and WM represented by Aaron Allison, attorney. Carrier appeared and was represented by Robin Lowenkron, attorney. Appearing on behalf of. the employer was Kevin Bellamy.
EVIDENCE PRESENTED
The following witnesses testified:
For Claimant: Himself.
For Carrier: Kevin Bellamy; John Obermiller, M.D.
1 SEP/26/2012/WED 09:19 AM LAW OffICE FAX No, 512 477 4470 p, 012
\I CONFIDENTIAL Tel(.18borCode l!402.083
The following exhibits were admitted into evidence:
Headng Officer's ExWbits 1 and 2.
Claimant's Exhibits C-l through C-14.
Carrier's E~hibits CR-A through CR-K
BACKGROUND INFORMATION
Although records reflect that there is some discrepancy regarding the exact mechanism of injury, claimant testified that he reported to work at 10:00 a.m, on March 27, 2011 for a 12-hour shift as a security guard. On or about 6:00 p.m., claimant bent to pick up some fallen keys. As he was bending over, his knee locked. he felt a "pop," and experienced pain. His knee began to swell. i Claimant contacted his supervisor. There is conflicting testimony regarding whether or not i claimant was told to complete his' shift. Claimant completed his shift and reported to Texes Med I Clinic that evening. but was unable to be seen due to lack of employer information. Claimant went to Seton Hospital in Kyle, TX. Swelling of the left knee .was noted. Claimant was given 1 crutches and told to immobilize the knee. Claimant saw his family physician, Munita Khambati, I M.D., on March 28, 2011. She diagnosed a knee sprain with possible Intemal derangement. I Claimant was referred to Joel Hurt, M.D.t an orthopedic surgeon, An MRI requested by Dr. Hurt j found mild joint effusion and a focal chondral irregularity.
The Division-appointed designated doctor, for the purpose of determining if an injury occurred 1 as a result of the' claimed incident, was Kenneth Driggs, Jr" M.D. His opinion is entitled to presumptive weight unless it is overcome by a preponderance of the other medical evidence. Dr, Driggs examined the claimant on July 8, 2011. Dr. Driggs indicated that, based on the records I and his examination, claimant's injury is a left knee sprainlsn-ain. Dr. John Obermiller, carrier's 1 required medical examination doctor, disagreed with Dr. Driggs, testifying that there was no acute injury. The preponderance of the evidence is not contrary to the opinion of thedesignated doctor that claimant sustained an injury in the form of at least a left knee strain/sprain on March 27,2011.
With regard to disability. claimant has not been released to full-duty work since his injUry. A DWC-73 was completed by the designated doctor, who recommends light-duty work until such time as claimant obtains treatment for his knee. The preponderance of the evidence is that claimant had disability from March 28, 2011 through the date of the hearing.
2 SEPl26/2012IWED 09: 19 AM LAW OFFICE FAX No. 512 477 4470 P. 013
I; CONFIDENTIAL TI,lX. Lltbor Code §402.083
Even though all the evidence presented was not discussed, it Wall considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.
FINDINGS OF FACT
1, Theparties stipulated to the following facts:
A. Venue is proper in the Austin Field Office of the Texas Department of Insurance. Division of Workers' Compensation.
B. On March 27, 2011, claimant was the employee of S&K Technologies. Inc., Employer.
C. On March 27, 2011. the employer provided workers' compensation insurance through Everest National Insurance Company, carrier,
D. The Division-appointed designated doctor, for the purpose of determining if an injury resulted from the claimed incident, was Kenneth Driggs. Jr., M.D.
2. Carrier delivered to claimant a single document stating the true corporate name of Carrier, and the name and street addres-s of carrier' 8 registered agent, whioh document . was admitted into evidence as Hearing Officer' It Exhibit Number 2.
3. Claimant sustained damage or harm to the physical structure of his body in the form of at least a left knee strain/sprain, white in the course and scope of empJoymet:lt on March 27, 2011.
4. The compensable injury was a cause of claimant's inability to obtain and retain employment at wages equivalent to his preit\iury wage beginning on March 28, 2011 and continuing through the date of the hearing,
CONCLUSIONS OF LAW
1. The Texas Department of Insurance, Division of Workers; Compensation. has jurisdiction to hear this case.
2', Venue is proper in the Austin Field Office.
3. Claimant sustained a compensable injury on March 27, 2011.
4. Claimant had disability begianing on March 28, 2011 and continuing through the date of tho hearing.
3 SEP /26/20 12/WED 09: 20 AM LAW nFFICE FAX No. 512 477 4470 P. 014
!, CONFIDENTIAL I Tex. l.Jlbor C!lde I §402.083 J
DECISION
Claimant sustained a compensable injury on March 27, 2011. Claimant had disability beginning on March 28, 2011 and continuing through the date of the hearing.
ORDER
Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers' Compensation Act, and the Commissioner's Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.
The true corporate name of the insurance carrier is ,EVEREST NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is:
CT CORPORATION SYSTEM 350N.ST. PAUL STREET DALLAS, TEXAS 75201
Signed this 25th day of October; 2011.
~Il~ Carolyn Cheu Mobley Hearing Officer
4 SEP 126/20! 2/WED 09: 20 AM LAW nf'FICE FAX No. 512 477 4470 P. 0 l5
EXHIBIT "B" SEP/26/2012!WED 09:20 AM LAW OFFICE FAX No, 512 477 4470 p, 016
•• GAllftgh~" BII'lJett Sorvjc:elt IRe, 5116 BiasoIllltlt. 51» 364, B~IlaIro, Toxatl,77~Ol
NOTICE OF PENIAL OF CQh.W!NSABIUD'lLIAJjILITV AND RP&1ML TO rAY BijNBFLIa
DATE: Apt1l12, 2&.11
TO: JoSepll Rlllx Corllfluci Man Return Rvcelpt 2 jj 1010 1870 0000 1509 Sd41
RE: DATE0}7]NJURY 03/').7111 NATURE OF INJURY Btlbsion PART OF BODY INJURED Loft. NAMBOF liMPLOYBB J'olloph,Rulz EMPLOYEE SSN' _ .•a443 1'WCdl/ U.IlIII/l{gned CARRIER NAMIlII'PA NAME .Ewte,t NlltlouafIGaJiIlgllOl' Bmen Services. InD. CARlUBR. CLAIMII 0()2~I..o06402-Wc.o • BMPLOmRNMm S ftI'Id K A~n)spftCC LLC BMPLoYBRADDRBBS @()()6 Old H"'Y 9:;, Suite a nMPLOYERcrrr, STATE, ZIP Sf Ignattlli, MT 59165 On (J3/291H, we received notice n..tyoy roport4d an-on thetJob it\iu&,)". We lite d~yingyo1ll' claim for wotk~' OOInpfll1satioll b~Qflt8. I. Womers' oolnpons'ltklll betlelita, inoludl1l8.tnOdiolli benflt1~ 11'0 nol m,fllg'patd beMl1Se: 1 carrier r~pectfufly (jlspute& that the oIalmant su&taJned an Injury/and or oocupatlonal disease in the course $nd scope or emptoyment. ",~ dalmant 'fallud to fdentlfy an Incident traoeable to a ~Ifk:. time, date or event that caused' hIs afleged Injury. The claImant (ailed to produce medicell doouments Unldng any damage or harm to the physloalstructure of his body to . an~ alleged work related aotMt)'. Walking Of stand~ with nothl~ more Is a normal funotlon of life and with nothing more I I does not constitute a compensable. .Fur-ther, the tact that symptoms ooourred during the perlcd Of employment does not mandate the conolU8~n !hat ttle employment was tbe oause oUhe Injury, The Carrlerreepecffutly dlsputes.aU medlc:ai and ,disability ben&flts. Carrier re.ervos tht rlgllt to amend thIs oontroverslon upon reefipt of 'lilY addItional infonnatlon. OIaiJruW may contact the DlvJsJonot Workers' Compensation with qUi'JSIle>M regl!:lrdlngftte filing of thl' document at 1-800..26.2-7031
Acljuster'lI NaIftQ: TollFteo Telepho~ 1#: Fax #/k,dt Address:
moo Pl.N·1 (~Y. 1/05\ Paae 1 1II1I1II~I"IIIIIIJilIIJ~11~III"n
Appendix 2
SEP/26/2012/WED 09:21 AM LAW OFFICE FAX No. 512 477 4470 P. 002/079
CAUSE NO. 12-1593
JOSEPH RUIZ AND § IN THE DISTRICT COURT OF AMANDA RUIZ § PLAINTIFFS § § VS. § HAYS COUNTY, TEXAS § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER § BASSETT SERVICES, INC.; § AND CHERYL VERGE § DEFENDANTS § 274th JUDICIAL DISTRICT
PLAINTIFFS' FIRST AMENDED SPECIAL EXCEPTIONS; MOTION FOR PROTECTIVE ORDER AND MOTION TO CO:MPEL DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT:
CO::MES NOW, Joseph Ruiz and Amanda Ruiz, hereinafter "Plaintiffs," and would
respectfully show that this case was transferred to this Court on August 16, 2012 from
Travis County, Pending at the time of transfer were Plaintiffs' Special Exceptions; Motion
for Protective Order and Motion to Compel Discovery - which are combined for this
Court's resolution and are ripe for determination; to wit:
I. SPECIALEXCEPTIONS
A. Defendants' most recent answer is attached as Exhibit "A."
1. Plaintiffs specially except to Paragraph 5 of Defendants' First Amended
Original Answer invoking the "doctrine of unclean hands". Such pleading gives no
factual basis nor provides any facts relating to "Plaintiffs' wrongful conduct". Such
pleading further is void of any facts relating to the allegation that "Plaintiffs' wrongful
1 SEP/26/2012/WED 09:21 AM LAW O~FICE FAX No. 512 477 4470 P. 003/079
conduct has severely injured Defendants". Plaintiffs seek the Court to order Defendants
to plead with specificity the factual basis, if any, that supports such allegation.
2. Plaintiffs specially except to Paragraph 7 of Defendants' First Amended
Original Answer wherein they allege "Plaintiffs have failed to mitigate their damages."
Such pleading is a bare legal conclusion with no hint of a factual basis. Plaintiffs seek
the Court to order Defendants to plead with specificity the factual basis, if any, that
supports such allegation.
3. Plaintiffs specially except to Paragraph 9 to Defendants' First Amended
Original Answer referring to "reliance On advice of medical professionals". Such
pleading is without any factual basis and should be stricken. Plaintiffs seek the Court to
order Defendants to plead with specificity the factual basis, if any, that supports such
allegation.
4. Plaintiffs specially except to Paragraph 14 to Defendants' First Amended
Original Answer referring to the allegation that "Plaintiff, Joseph Ruiz, failed to exhaust
his administrative remedies" in that it is without factual foundation or identification of
any administrative remedies, if any, which Plaintiff, Joseph Ruiz, has allegedly failed to
exhaust. Plaintiffs seek the Court to order Defendants to plead with specificity the
factual basis, if any, that supports such allegation.
n MOTION FOR PROTECTIVE ORDER
A. Plaintiffs' proposed Protective Order is attached as Exhibit "B."
1. Defendants' claim that certain documents are being withheld as being
"proprietary." "Proprietary" documents are discoverable - and if truly "sensitive" - can
2 SEP/26/2012/WED 09:21 AM LAW OFFICE FAX No. 512 477 4470 P. 004/079
be produced pursuant to a Protective Order.
2. Plaintiffs sent a request to Defendants to enter an Agreed Protective Order
on May 23,2012 which is patterned after the "standing" Protective Order for the Austin
Division of the Western District of Texas. That request has gone unanswered.
3. Moreover, these same attorneys representing Gallagher Bassett in a similar
lawsuit have agreed to enter a Rule 11 agreement similar to the Protective Order as
attached. See Exhibit "c."
Plaintiffs request that the Court enter an appropriate Protective Order similar to
Exhibit "B".
Ill. MOTION TO COMPEL DISCOVERY
A. The merits of this Motion were previously argued to the Travis County
District Court prior to the transfer to Hays County - but remain unresolved.
1. This case post Ruitiger, 1 involves Defendants! alleged violations of Section
541.061 in the handling of the we claim of Joseph Ruiz, His wife Amanda Ruiz joins in
this case alleging had faith conduct against these Defendants due to her community
interest in the benefits that were wrongfully withheld. See Section 3.008(b) Tex. Family
Code.
2. Plaintiffs have narrowed their Pleadings to allege that the acts of the
Defendants violate Section 541.061 of the Texas Insurance Code which prohibit
misrepresentations of an insurance policy.
On Friday, September 21, 2012, the Texas Supreme Court denied the Motion for Rehearing in Texas Mutual Ins. Co, v. Rumger, _ S.W3d _, 20ll WL 2361697 (Tex. June 22, 2012), leaving Section 541.061 as the only recognized cause of action under Chapter 541 of the Texas Insurance Code available in the we context.
3 SEP/26/20!2/WED 09:21 AM LAW OFFICE FAX No,512 477 4470 p, 005/079
3. Plaintiffs have further sued alleging violations of the unconscionability
provisions oftheDTPA, Section 17.45(5), Tex. Bus. & Com. Code.
B. Scope of discovery and Defendants" burden regarding objections and asserting privileges.
4. Rule 192.3 governs the scope of discovery which is "". any matter that is
not privileged and is relevant to the subject matter of the pending action, whether it
relates to the claim or defense of the part)' seeking discovery Or the claim or defense of
any other party." See Rule 192.3(a). The information sought must appear to be
reasonably calculated to lead to the discovery of admissible evidence.
5. At any hearing relating to ruling on objections and assertions of privilege,
the party making the objection or asserting the privilege must present any evidence
necessary to support the objection or privilege. See Rule 193.4(a).2
C. "Canned objections" should be overruled."
6. The objections filed by the Defendants to Plaintiffs' request for discovery
are nothing more than "canned" objections. Gallagher Bassett files these same, or
similar, requests in each case where it is a Third Party Administrator ["TP A"] Defendant
in a we bad faith case. Such objections should be overruled as either (a) no good faith
basis for objection (Ru1e 193.2(c)) or (b) any "good faith" objection is obscured by
2 The evidence may be by testimony presented at the hearing or affidavits served at least seven days before the hearing. 3 The same or similar discovery requests have been made of Counsel for the Defendant Gallagher Bassett in at least 3 other cases wherein documents were produced in the format in which they are kept and many produced without the need for a hearing on the "canned" objections filed by the identical lawyers for Gallagher Bassett. See D-I-GN-09-002378 Moreno v. Gallagher Bassett, 98th District Court of Travis County, Texas; 2009·11639 Bailey v. Gallagher Bassett, 129th District Court of Harris County, Texas; 2010-30365, Menjivar v. Gallagher Bassett, 55th District Court of Harris County, Texas.
4 SEP/26/20l2/WED 09:22 AM LAW [lJ:'FICE FAX No, 512 477 4470 P. 006/079
numerous unfounded objections and therefor all objections are waived (Rule 193.2(e».
7. Likewise, Defendants' Privilege Logs do not comply with Rule 193.3(d).
The Privilege Logs referenced by Defendants in their responses do not describe the
information or materials withheld sufficiently to enable Plaintiffs to assess the
applicability of any alleged privilege. They do not assert a specific privilege for each
item or group of items withheld - nor do they identify all recipients of the documents
sufficiently to avoid third-party disclosure waiver.
D. Claims of privilege should be denied.
8. Defendants were specifically requested to "identify each document
withheld by date; bates number (if any); author; recipient; type of document;
nature of content subject to claimed privilege; and each prtvilegets) claimed as to
the document." See Exhibit "D" (plaintiffs' Request for Privilege Log - May 10~
2012). These items have long been recognized as the requirements in any sufficient
privilege log. See In re Maher, 143 S.W.3d 907, 914 (Tex. App. - Port Worth 2004,
original proceeding); and In re Monsanto Company, 998 S.W.2d 917,925 (Tex. App. ~
Waco 1999, original proceeding).
9. A sufficient privilege log showing all recipients is necessary for the Court
to determine waiver by disclosure to third parties. See Jordan v. Fourth Court of
Appeals, 701 S.W.2d 644, 649 (Tex. 1986) (privilege waived on documents disclosed to
grand jury); In re Harco National Insurance Co., 2010 WL 2555629 (Tex. App. - Fort
Worth June 24, 2010) (producing party failed to carry burden of showing documents
shared with each its reinsurer had not been waived).
5 SEP/26/2012/WED 09:22 AM LAW OFfICE FAX No, 512 477 4470 P. 007/079
10. More importantly, the same lawyers and Gallagher Bassett have shown
themselves capable of providing a more detailed Privilege Log in the Menjivar case cited
above in footnote 3. See attached Exhibit "E." Defendants' claims of privilege should
be denied.
E. Objections should be overruled.
11. Defendants' objections and claims of "privilege" should be overruled, and
the Court should Order the following categories of documents to be produced:
A. Claim Notes. Gallagher Bassett and Everest refuse to produce their
claim notes in the format that complies with Ru1e 196.3. The claim notes produced in
this case stand in stark contrast to the 212 pages of claim notes produced as a result of
Judge Covington; s Order in Moreno v. Gallagher Bassett by these same lawyers. See
Exhibit "F" for "exemplar format') Claim Notes produced in Moreno v. Gallagher
Bassett, (public record attached to Plaintiffs' Response to Defendants' No-Evidence
Motion for Summary Judgment) and Exhibit "G" [Judge's Order in MorenoJ.
It is undisputed that Gallagher Bassett keeps its claim notes electronically and can
sort such notes in a thread that is paginated in numerical order beginning with the number
one (earliest date) and going through to the end (most recent date). See Testimony of
Teresa Blake, an adjuster for Gallagher Bassett - taken in Moreno Exhibit "H."
Accordingly, the Court should order the Defendants to produce their claim notes
in the format in which they are kept as shown by the exemplar attached hereto as Exhibit
"F." See Exhibit "G" ~'s 1; 6. [Order, March 25, 2010 - Judge Suzanne Covington,
Travis County District Judge].
6 SEP/26/2012/WED 09:22 AM LAW (l);'FICE FAX No. 512477 4470 P. 008/079
B. Relating to Defendants' claim me; claim notes and investigative
reports/communications - RFP's 1; 2; and 15
The claim file and related investigative documents are discoverable on the issue of
the unconscionable nature of continuing the ruse that Mr. Ruiz's claim was not
compensable under the we insurance policy, together with the knowledge of the claims
handlers (adjusters) as to "what they knew and when they knew it."
Accordingly, Everest and Gallagher Bassett's objections to RFP's 1, 2, and 15
should be denied and they should be ordered to produce all such documents that have
been withheld from discovery. See Exhibit ~'G" ~'s 1; 6. [Order, March 25,2010].
C. Claim Reserves. RFP's 10; 11; 20; 21; 30; and Interrogatory
Responses 4 and 5.
Defendants are required to maintain claim reserves on Mr. Ruiz's claim for
worker's compensation. See Chapter 426, Texas Insurance Code. Such reserves are
discoverable for the purpose of identifying the claims handlers' best estimate (at various
points in time) of how much would have to be paid on Mr. Ruiz's "compensable"
claim. Such evidence is discoverable - and admissible - on the issue of Defendants'
"knowing" conduct to continue the deceit and unfairness of the original
misrepresentation. See e.g. Exhibit "I" (Gallagher Bassett adjuster Teresa Blake).
Stated differently, reserves are discoverable for the purpose of revealing the continuing
pretext that the claim was not compensable under the insurance policy. See Swicegood
v. Medical Protective Co., 2004 WL 1698285 (N.D. Tex. 2004); and Business Staffing,
Inc. v. Jackson Hot Oil Service, 2012 WL 1864345 (Tex. App. - EI Paso, May 23~2012)
7 SEP/26/2012/WED 09:22 AM LAW OFFICE FAX No, 512 477 4470 p, 009/079
at *3 (reserve admitted in we case). See Exhibit "G~~~'S 1; 6. [Order, March 25,
2010].
D. "Best Practices"; Claims Manuals; Guidelines and Directions for
Claims Handling - RFP' s 3; 4; 5; 21; and 3O.
Gallagher Basset has produced its "Best Practices" in numerous cases (see FN3
above) and has no reasonable basis for withholding them here. Gallagher Bassett's
claims manuals and "best practices" as to how to avoid misrepresentations and unfair
conduct in workers' compensation. These same points apply to Defendant Everest.
Accordingly, Defendants' objections to these RFP's should be in all things
overruled and Defendants should be ordered to produce such documents. See Exhibit
"G" ~ 7. (Order, March 25, 2010]
E. Gallagher Bassett's TPA contract with Everest - RFP 6 to
Gallagher Bassett.
Gallagher Bassett's objections to producing its TPA agreement with Everest
should likewise be overruled. Such document is calculated to lead to the discovery of the
duties, obligations, and requirements that Everest puts on Gallagher Bassett as its TPA to
handle we claims such as that brought by Mr. Ruiz. These types of documents usually
also require the TPA to carry errors and omissions coverage and controls their conduct
regarding misrepresentations and unfair practices.
Accordingly, Defendants objection to RFP 6 should be overruled and Gallagher
Basset should be ordered to produce such document forthwith.
8 SEP/26/2012/WED 09:22 AM LAW OFFICE FAX No. 512 477 4470 P. 0 10/079
F. Everest's we Insurance Policy - RFP 6 to Everest.
Everest's objections to producing its Insurance Policy issued to S & K
Technologies to which Joseph Ruiz is a party, should likewise be overruled. The
applicable policy under which benefits were eventually paid is calculated to lead to the
discovery of the duties. obligations, and requirements that Everest has to Mr. Ruiz.
Moreover. Mr. Ruiz is a "party" to that policy and is entitled to all of the rights
thereunder. See Southern Cas. Co. v, Morgan, 12 S.W.2d 200,201 (Tex. Comm'n App.
1929, judgm't adopted); Huffman v. Southern Underwriters, 128 S.W.2d 4, 6 (Tex.
1939).
Accordingly, Defendants objection to RFP 6 should be overruled and Everest
should be ordered to produce such document forthwith. See Exhibit "G" ~ 3. [Order,
March 25, 2010].
G. Everest and Gallagher B&ssets' Attorneys' fees in this case -
RFP's 13. Plaintiffs' seek the documents relating to the amount of time and fees relating
to the lawyers representing the Defendants in this case.
Accordingly, the objections by Everest and Gallagher Bassett to RFP 13 should be
overruled. See Exhibit "G" ~rs4; 8. [Order, March 25,2010].
H. Discoveryof other claims and lawsults - RFP 14.
Plaintiffs' have requested copies of the complaints or petitions since January 1,
2008 relating to other workers' compensation bad faith cases similar to the one presented
here. Plaintiffs are entitled to such information for the purpose of showing other acts
probative on the issue of "knowingly" and additional damages as alleged in Plaintiffs'
9 SEP/26/2012/WED 09:22 AM LAW 0k'FICE FAX No.5!2 477 4470 P.Ol1/079
Petition. See Johnson v. J. Hiram Moore, Ltd., 763 S.W.2d 496, 500 (Tex. App.-Austin
1989, writ ref'd n.r.e.); and Aztec Life Ins. Co. v. Dellana, 667 S.W.2d 911, 915 (Tex.
App.-1984 orig. mand. Proceeding). Indeed, Gallagher Basset has produced these
Litigation Logs in several other cases which will only need updating.
Accordingly, Defendants' objection to RFP 14 should be denied and Defendants should
be ordered to produce such documents forthwith. See E:x:hibit "0" "s 5; 9. (Order,
March 25,2010].
vn. PRAYER
WHEREFORE, PREMISES CONSIDBRED. Plaintiffs respectfully request that
the Court grant Plaintiffs' Special Exceptions and order Defendants to provide the factual
specificity as requested; grant Plaintiffs' Motion for Protective Order and enter an
appropriate Order; and deny Defendants' objections and claims of privilege and order
Defendants to fully and adequately respond to all discovery requests identified herein and
produce the requested documents (in the format in which they are normally kept) within
seven days of the entry of the Court's Order. Plaintiffs further pray for such other relief
to which they may be entitled.
Respectfully submitted,
LA W OFFICE OF JOE K. LONGLEY
Is! Joe K Longley JOE K. LONGLEY Texas Bar No. 12542000 1609 Shoal Creek Blvd., Ste. 100 Austin TX 78701 Telephone: (512) 477·4444 Facsimile: (512) 477-4470
10 SEP/26/2012/WED 09:23 AM LAW OFFICE FAX No.512 477 4470 P.012/079
MOORE LANDREY, LLP ETHAN L. SHAW Texas Bar No. 18140480 JOHNP. COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd., Ste. 100 Austin, TX 78701 Telephone (512) 499-8900 Facsimile (512) 320-8906
THE SOECHTING LAW FIRM CHARLESSOBCHTTNG Texas BarNo. 18821300 3331 Ranch Road 12, Suite 107 San Marcos, TX 78666 Telephone (512) 396-2900
ATTORNEYS FOR PLAINTIFFS
NOTICE OF HEARING
Please take notice that Plaintiffs have set their Special Exceptions; Motion for.
Protective Order and Motion to Compel to be heard on October 16, 2012 at 9 .M. in the
District Court of Hays County, San Marcos. Texas.
Is/ Joe K LongLev JOE K. LONGLEY
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document has been served by facsimile transmission and by first class U.S. mail) on Deanne C.
Ayers, Ayers & Ayers, 4205 Gateway Drive, Ste. 100, Colleyville, Texas 76034l on this th 25 day of September, 2012l in accordance with the Texas Rules of Civil Procedure.
/s/ Joe K. Longlev JOE K. LONGLEY
II SEP /26/20 12/WED 09: 23 AM LAW OFFICE FAX No, 512 477 4470 r. 013/079
EXHIBIT "A" SEP/26/2012/WED 09:23 AM LAW nFFICE FAX No, 512 477 4470 P,014/079 JUN-21-2012 WED 09:24 AM HYERS AYERS -- -- ..--- - -. - ---...... ""---- &
CAUSE NO. O~1-GN-12000705
JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § w. § OF TRAVIS COUNTY, TE){AS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETI § SERVICES, INC.; AND CHERYL § VERGE § 345th JUDICIAl- DISTRICT
DEFeNDANTSJ MOTION FOR TRANSFER OE :veNUE. ~BJeCT TO MOTIONFOR TRANSEeR OF VENUE, DEFENDANTS' MOTION FQR ABATEMENT, FIRST AMENDED ORIGINAL ANSWER ANP REQUEST FOR Dr$C~OSUB.E
TO THE HONOAABLE JUDGE OF SAID COURT:
COME NOWj EVEREST NAilONAL INSURANCE COMPANY, GALLAGHER
BASSETI SERVICES, ING., AND CHERYL VERGE:, Defendants in the above .•styled and
numbered cause of action. and file this their Motion for Transfer of Venue, and SUbJeetto
Motion fotTransfer of Venue, Defendants) Motion for Abatement, First .~ended Original
Answer and Request for Disclosure, and for same would show unto the Court as follows:
MQtion for Transfer of Venue I.
This Motion to Transfer Venue is made prior to the makIng of any other plea in this
. matter. All other pleadings and claims contained within this filing are mad 9 subject to this
DEFENDANTS' MOTiON FOR TAANSFER OF VENUE, SUBJECT TO MOTION FOR "rRANSFER OF' VENU~I DEFENDANTS' MOTION FOR ABAT~MeNT, FIRST AMENDED ORIGINAl-. ANSWER AND REQUEST FOR DI9C1-QSUR~- PAGE 1 SEP126/20 12IWED 09: 23 AM LAW mlICE FAX No. 512 477 4470 P.015/079 - _"_JUN-27-2012 ----... WED nr_.. 09:24 _ AM BiERS ,..._" & AYERS FAX NO, 811J180663 P. 03/12
Mot1on for Transfer of Venue. Defendants would show unto thiG Honorable Court that
Travis County, Texas, is not propervenue for the allegations asserted by Plaintiffs against
these Defendants in that Plaintiffs judicially admit they are residents of Kyle, Texas. Kyle
Te)(:2!i$is situated in Hays County and Caldwell County. Texas, Plaintiflis' residence's
address is located in H'i.lY$ county, Texas, No activitywhtch forms the basll~ of the clcUms
againstthese Defendants occurred inTravis County, Texas, thus rendering 1his Honorable
Court without proper jurisdiction over these parties. No basis exists mahd;ating Or
permItting venue in Travis County, Texas.
Neither Everest National Insurance Company nor Gallagher Bassett Services) Inc.,
maintatns at principal place af business in Travis County, Texas. at the present tirtle or at
the time of the alleged tort. Def$nd~nt Gallagher Bassett Services) mc., Is a Delaware
corporation with its principal place of buslness in Tex6lG located in Plano, Collin County.
Everest National Insurance Company is a Delaware corporation with its principal place of
busIness in the State of New Jersey. Defendant Cheryl Verge is not now and has never
been domiciled in Travis County, Texas,
No decision to deny a workers' com pensatlon claim Was i'f\ade in Travis County,
re~as. This is not a lawsuitto recover workers' compensation behefrts, but rather
stemming from alleged declslons relative to polley of insurance. Defendants, Everest
National Insurance Company and Gallagher Bassett Services, lnc., move this Court to
transferthe above-styled and numbered cause of action to a district court of Collin County.
Texas, where proper venue lies in this cause, in that Gallagher BassettServices, Inc.'s
principal place of business in Texas is IOdated in Plana, Collin County. (See Exhibit A
Ot:;reNOANTS' MOTION FOR rRANSFER OF VENUE, SUBJECT TO MOTION FOR i'RAN$Ft:!R Of VENUE, DEFf:NDANTS' MorlON FOR ABATEM~NT, FIRST AMENDED ORIGINAL ANSWER AND ReQUESf FOR DISCLOSURE - PAGE 2 SEP AM LAW OFFICE /26/20 12/WED 09: 23 FAX No, 512 477 4470 p, 016/079 ~~N-?1-~012 WED,.08:24 AM hcERS & AYERS FAX NO. 81,v180663 P. 04/12
attached hereto and Incorporated herein for all pUrp(Jst;Js). This filing constitutes a specific
denial of all venue allegations which have been pled by the Plalntiff.
WHEREFORE, PREMISES CONSIDERED, Defendants pray the! Court grant
Defendants' Motion for Transfer otvenue, and transfer the cause of action alleged against
these Defendants from Travis County, Texas. to a district court In collin county, Texas,
and for such other and further relief to which these Defendants are entitled, and for which
they will ever pray.
II.
SUBJECT TO MOTION EOR TRANSFER Qf VENUE;
MQTION FOR ABATEMENT
Defendants, EVEREST NATIONAL INSURANCE COMPANY, GALLAGHE.R
8A6SETTSERVICES, INC'I and CHERYL VERGE, would showuntotheC.ourtthey have
been sued by the Plaintiffs under the Texas Oec~ptive Trade Practices A~.t. Defendants
would show unto the Court that under the Texas Deceptlve Trade Practices Ad, they are
entitled to receive a 60-day notice prior to the filing of a cause of action. Defendants would
show 'l4~t on March 8,2012, Plair1tiff$ sent via certifisd mail, return receipt requested, to
Defendant, Cheryl Verge, with a settlement demand for viofatlona of the TE~)(aSInsurance
Code, wherein it is stated by Plaintiffs' counsel that Plaintiffs will voluntarily abate the
aetlon filed for 62 days after receipt of such letter. Defendants move this Court issue an
order abating the above-styled and numbered cause of Ejction for sixty (BO)days from the
date of such Order.
OEFENDANTs' MeT ION FOR TRANSFER OF VENUEl SUBJECT TO MOTION FOR TRANSFER OF VENUE. DEFENDANTS' MOTION FOR ABATEMENT, FIRST AMENDED ORIGINALA\lS\NER AND REQUEST FOR DISCLOSURE - PAGE 3 SEP/26/2012/WED 09:23 AM LAW OfFICE FAX No. 51 2 477 4470 p, 017/079 . ~-JUN-27-2012~. ---.... WED~-09:24 AM h!tRS & AYERS FAX NO, 81,~180683 P. 05/12
III.
Oefendants Everest National Insurance Camp!"y» Gallagher l?assatlServiG@s,(nc., CberYl Verg&'~ First Amended Original Answer
Subiect to their Motion for Transfer' of Venue, Defendants file 'the following First Amended OriginalAnsw~r~
1.
Defendants hereby exercise their rights under the law to file a genElral denial and
require the Plaintiffs to prove their causes of action by a preponderance of the evidence,
Defendants deny each and every, aI/ and singular, the allegatIons contained in the
Plaintiffs' Original Petition, and all amendments and supplements thereto! and do require
Pla.intiffs to prove their cause of action to a fair and impartial jury by a prepcndetance of
the evidence as required by law.
2.
Defendants enter a general denial as to every material and prejucj icial allegation
contained in plalrttiffs' Oti!jlinal Petition and all amendments and supplements thereto, and
request a trial by jury of every issue of faot rajsE;td by the pleadings herein,
3.
Defendants specifically deny any conduct in violation of §54'1.060(a)(1),(2),
§541.060(a)(7)r and §541.061 of th~ Tex. Ins. Code, and further deny vlclations of
§17A5(5) and §17.50 of the Tex. Bus, & Com. Code (Unconscionable AcHon), as well as
violation of Chapter 416, Texas Labor Code and the Common Law Duty of 130ddFaith and
Fair Dealing.
DEFENPANTS' MOTION FOR TRANSFER OF VENUE, SUBJECT TO MOTION FOR 1"RANSFE:R Or VE.NUE, DEFENDANTS' MOTION FOR ABATEMENT, FIRST AMENDED ORIGINAL ANSWER AND REQUeST FOF{ DlSCLOSURE - PAGE 4 SEP/26/2012/WED 09:24 AM LAW OFFICE FAX No, 512 477 44 7 0 P. 018/079 -- ---JUN-27-2012 --- WED--" 09:24 AM ._.ERS & AYERS FAX NO.8. J180663 p, 06/12
4.
Defendants deny Plaintiffs are entitled to relief as provided under §541.152 of the
Tex. Ins. Code and §17.50(a)(3), 17.50(b)(1) and 11.50(d), Texas Dec:eptive Trade
Practices Act.
5.
Defendants plead and invoke the doctritie of unclean hands. Plaintiffs' wrongful
conduct has severely injured Defendants; therefore, Plaintiffs are not entitled to
compensatory damages or equitable relief.
6.
Defendants assert that Plaintiffs' damages, if any; which are in fact denied I are
solely compensable under the Texas Workers' Cornpensetion Act as Plaintiffs' exclusive
remedy. Defendants assert accord and satlstaction.
7.
Defendants allege the Plaintiffs have failed to mitigate their damagels, If any, which
they are claiming as a result of the lncldent in question,
B.
Pleading further, Defendants seek a finding by the jury of comparative fault and bad
faith on the part of the Plaintiffs. Defendants assert Plalntlffa' negligence caused their
damages, if any,
9.
Defendants assert reasonable reliance on the advice of medical prc.fessionals and
asserts such rellance was reasonable.
DEFENDANTS' MOrlON FOR TRANSFER OF VENUE, SUBJECT TO MOTION FOR TRANSFER OF VENUE, DEFENDANTS' MOTION FOR ABATEMENT, FIRST AMENDSO ORIGINAL AI~SWER AND ~E,QUEST FOR DISCLOSURE; - PAGE 5 SEP/26/2012/WED 09:24 AM LAW OFFICE FAX No, 512 477 4470 P. 019/079 JUN-27-2012 WED 09:24 AM IIr£RS & AYERS FAX NO, 81 ,~180683 P. 07/12
10.
Defendant~ do hereby requestthat all proceedings in this cause numb-er be reported
by the official court reporter of the presiding District Court or his/her designeE!. Defendants
demand a trial by jury.
11.
Plaintiffs failed to provide sixty-day notice of their Intent to file a claim pursuant 10
the Texas Deceptive Trade Practices Act. 12.
Defendants specifically plead Plaintiffs are not entitled to recover attorney's fees,
if any, which were incurred before the OMslon of the Workers' Compensation, Texas
Department of Insurance. 13.
PI$ading ii"l the alternative, Defendants deny Plaintiffs are entitled 11, or should be
awarded exemplary damages. However, Defendants specifically assert aUdamage caps
and limitations as allowed by' Texas law, and speclflcally TEXAS CIVIL PRACTICt= AND
REME;OIES CODE §41.00B, Er.SEQ.
14.
Defendants object to venue and jurisdiction. Plaintiff, Joseph Ruiz, failed to
exhaust his administrative remedies. As such, this Court lacks jurisdiction overthis matter.
DeFENDAN-rS' MOTION FOR TRANSFER OF VENUE, SUBJECT TO MorlON FOR 1 RANSFER OF VENUE, DEPENDANTS' MOTION FOR AaATEMENT, F'IRST AMENDED ORIGINAL A)~SWER AND REQUEST FOR DISCLOSURE ~ PA~~ e SEP/26/2012/WED 09:24 AM LAW OFFICE FAX No, 512 477 4470 P. 020/079 _____ JJJ.N-~?-2012WED 09:25 AM HyERS & AYERS FAX NO. 81,J180B63 P. 08/12
15.
Request for Disolosure
Subjeot to Motion for Tran$k!r of Viltnye
This request is made subject to and without waiving the Defendants' pending
motlons. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants request
Plaintiffs respond to Request for Dfsolosure (a) th(ough (I) Within thirty (~O) days from the
date of service hereof. prayer
WHEREFORE, PREMISES CONSIDERED, Defendants pray thiS cause of action
be transferred from Travis County, Texas, to a disfrlot court in Collin County, Texas, Inthat
Defendant Gallagher Bassett Services, Inc. 's principal place of business in Texas is
located in Plano, Collin County. Further, that this Cause of action be abated for sixty (60)
days. Defendants pray upon final trial hereof, Judgment be entered in favor of these
Defendants, and the Plaintiffs recover nothing from these Defendants. Defendants pray
all oosts be taxed against the Plaintiffs, and for such other and further relief. both at law
and in eqUity, to Which they may show themselves JustlY entitled and for which they will
ever pray.
DEFf;N ClANTS' MDTlON FOR TRANSFER OF VENUE, SUBJECT TO MariON FOR lRANSFER Of VENUE, DEFENDANTS' MOTION FOR ABATEMENT, FIRST AMENDED ORIGINAL AI-.JSWERAND REQUEST FOR DISCLOSURE - PAGE 7 SEP/26/2012/WED 09:24 AM LAW OFFICE FAX No,512 477 4470 r. 021/079 ._~RJN-27-2Q12 WED09:25 AM ",ERS & AYERS FAX NO. 8. ~180663 P. 09/12
Respectfu y submitted, AYERS & YERS By__ ~~ __ ~~ _ De nne C, Ayers State Bar No. 01465820 4205 Gateway DrivEl, Suite 100 Colleyville, Texas ~r6034 817..267-9009 telephone 817-318-0S831aesimile AlTORNEY FOR DEFEN[)ANTS
CERTIFICATE OF SERVICE
I hereby certify a true and correct copy ¢f the above and foregoing document has been ~el'lttoPlaintiffs counsel of record, via certified mail, rsturnreceipt requested, on this the 2Th day of JUne, 2012,
Dsanne O. Ayers
DEFENDANi$' MOTION FOR TRANSFER OF VENUE, SUBJECT TO MOTION FOR TRANSFER OF VSNUE, DEFENDANTS' MOTION FOR ABATEMENT, FIRST AM5NDED ORIGINAL AI~SWER AND REQUEST FO~ DISCLOSURE ~ PAGE 8 SEP/26/20!2/WED 09:24 AM LAW OFFICE FAX No, 512 477 4470 P, 022/079 ~~27-201? WED 08:25 AM HyERS& AYERS FAX NO. 811jlB0863 p, 10/12
CAU$E NO.· D..1~GM..•120007Q5
JOSEPH RUfZANO· IN'THE. £.)lS'T~IOTCOURT AM~l'IlPA RUI,z ~
V$, sI . § I.7.VERESr NA 110NAI. INSURANCE! I COMPANY; GALLAOHER BASSE,.,' , SERVICES, tNC.; AND CHEftYL V.ERG~ § 345ll'r JUO\CIAL DISTR1Cl'
TH~ $1AtE',OF TeXAS s CPl.,INTV OF HARRIS ~
BEF'ORE Me,. {he 'undersiQnerl authority, in and for tile .abave me~tIoriOO Cuum'l" and State, ern tl1t's day pe1'SrJltally ap~ar;ad RA"V CAMARa.L.O.. who a.fta( beihg c,luly' swi>fn; en oath s,ays.that l1e: Is above ,the :age .of '1B- years, has not been co n.vl¢t¢d ~ ~
ieiony, and is not rnentaHy fficspaC!tf:lle.d in any W'iilV. Ir.'e inforrnationoontaineci hEltlilir1 ~ witliin !\ls pers.onal knowledge and is true al!ld correct, Affialr\t depo$ee aNCI'$tatee ~ follows:
1, For purpeses of this oon~ ~.rr\dthe m~ltters.Gontallled wlthirl this' Af.-fi~~it,I
am the designated eorpolll'ta represematlire CJf Gallagher BaSlSett ~rvk:'5!$, 11'l~\,IiIhd Everest Nsr.lonallnsu('ali'¢e Company,
1. GallagherBaiii~~ttS"ervlcss. ff\C, doesrtOthav8:a pr!!ie~l'P1U!tl~io.t ,blJsin~. SEP/26/2012/WED 09:24 AM L.AWm'FICE FAX No, 512 477 4470 P. 023/079 . .~UN-27-201~ WE~ 09~2~AM HyERS BYERS & FAX NO. BlrJ180663 P. 11112
In Travis CO-Imty, Ttxas. 3.. Gallagher89ssett·Servlce.'S. toc. m~deno 'deolsloM. C¢l'ICSr.nlfl]; wofi Comp.any made no OaciS;Ol"lB t".onceming workers' compel"l~tifmciairn (j.f PlaitHlrr JQ~eph Roiz, ~r.navis County; Texas. AU decisions concerning theworkera' COrnpenSiatiol1 Gtalm of Piaj"tHf JO$.Elph..R.lliz made on ~half of ~v~r-a..'7t:Natiprlalli'isur.an~ Ct)lnp~y by the third party administrator, Gallagher Bassett·Servlces, lnc., were mfiK'le if; Coillin County, Texas, ( rxusonallv know Chery! Verge. Defendant Cher:t! Ver.ge.ls not a resldent.ofTra'fis C..Gunty,.Tex.'£I·i,;, and was Ii'lt a 1,'esidfmt t)f Trallis Cuuntij. Texas, at tOO time of the l.lMerlYingalleged wor~t$' cOlilpeli~lG)n da\m in the 300v.e-$ty.led a'nd number't'id cause (lfact.km. FURTHER, AFFIANT SAlTHNOT I'~ SlBr-lEO this (, day of ApI1\, 2012. ~ ~~.~ '--~ It,:ba\ c:3~t:I,'ais .A'Uthol1l2'adR~rfil$ef1t!:\li\le ,t;lf~ell~al'~ (:I.alla-ahar aa$S.et~$E'r'.llces, lnt., :ant'! E.v.erest NsrtiOl'lal l'ns\Jrancs Gqmpatry. SEP/26/2012/WED 09:24 AM LAW OFFICE FAX No. 512 477 4470 P, 024/079 ~N-27-2q,1~_,~ED_.Q9 :25 AM ,•• iRS & AYERS FAX NO. 81._180863 P. 12112 'i~E STATE~FT~ i COUNTY OF HARFHS § 'SF-FORE MS:,1he lm!ie);sIQoed authority, em th~ day ~rsonany app!:ared RAY CAMARIl..t.O, known to lTi~to b~ m~P'$f~ wl'1gsa.name j:S::subliIDf'lbad he~iQ and who iltated to me under oath that· I"I~Si9lwd ths roragmmg instrument for the piJfpOSe snd -Gpnii\Q~r~tiQnsUrerei(l~l'e.ssed. TO C5RHFY WHl.CH, WITNESS MY hand and seal <>1df.f'1~Qtj'thl$""'I (p'111day of April, 2012. , My Commission Exp.irs!: I~JC/ / I)" ,I ArF1D~\fIT. eXlilB1T CIA"'· ?AC1~3 SEP/26/2012/WED 09:25 AM LAW OFFICE FAX No, 512 477 4470 P. 025/079 EXHIBIT "B" SEP/26/2012/WED 09:25 AM LAW OFFICE FAX No. 512 477 4470 P. 026/079 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT OF AMANDARUIZ § PLAINTIFFS § § vs. § HAYSCOUNTY,TEXAS § EVEREST NATIONAL INSURANCE § CO~ANY;GALLAGHER § BASSETT SERVICES. INC.; § AND CHERYL VERGE § DEFENDANTS § 274thruDICIAL DISTRlCT PROTECTIVE ORDER On June 28,2012, the Court heard Plaintiffs' and Defendants' respective Motions for entry of a Protective Order pursuant to Rule 192.6(b) of the Texas Rules of Civil Procedure. It is hereby ORDERED that Plaintiffs' Motion is granted and Defendants' Motion is denied. It is further ORDERED that: I. All Classified Information produced or exchanged in the course of this litigation shall be used solely for the purpose of preparation and trial of this litigation and for no other purpose whatsoever, and shall not be disclosed to any person except in accordance with the terms hereof. 2. Classified Information, as used herein, means any information of any type, kind or character which is designated as Confidential or For Counsel Only (or Attorneys' Eyes Only) by any of the supplying or receiving parties, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer or otherwise. In designating information as Confidential or For Counsel Only (or Attorneys' Eyes Only), a party will make such SEP/26/2012/WED 09:25 AM LAW OFFICE FAX No. 512 477 4470 P. 027/079 designation only as to that information that it in good faith believes contains confidential information. Information or material which is available to the public, including catalogues, advertising materials, and the like shall not be classified. 3. Qualified Persons, as used herein means: (a) Attorneys of record for the parties in this litigation and employees of such attorneys to whom it is necessary that the material be shown for purposes of this litigation; (b) Actual Or potential independent technical experts or consultants, who have been designated in writing by notice to all counsel prior to any disclosure of Confidential or For Counsel Only (or Attorneys' Eyes Only) information to such persons, and who have signed a document agreeing to be bound by the terms of this protective order (such signed document to be filed with the Clerk of this Court by the attorney retaining such person); (c) The party or one party representative (in cases where the party is a legal entity) who shall be designated in writing by the party prior to any disclosure of Confidential information to such person and who shall sign a document agreeing to be bound by the terms of this protective order (such signed document to be filed with the Clerk of this Court by the party designating such person); and (d) If this Court so elects, any other person may be designated as a Qualified Person by order of this Court, after notice and hearing to an parties. 4, Documents produced in this action may be designated by any party or parties as Confidential or For Counsel Only (or Attorneys' Eyes Only) information by PROTECTIVE ORDER Page 2 SEP/26/2012/WED 09:25 AM LAW nJ;'FICE FAX No. 512 477 4470 P. 028/079 marking each page of the document(s) so designated with a stamp stating Confidential or For Counsel Only (or Attorneys' Eyes Only). In lieu of marking the original of a document, if the original is not produced, the designating party may mark the copies that are produced or exchanged. Originals shall be preserved for inspection. S. Information disclosed at (a) the designation of a party or one of its present or former officers, directors, employees, agents or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a third party (which information pertains to a party) may be designated by any party as Confidential or For Counsel Only (or Attorneys' Byes Only) information by indicating on the record at the deposition that the testimony is Confidential or For Counsel Only (or Attorneys' Eyes Only) and is subject to the provisions of this Order. Any party may also designate information disclosed at such deposition as Confidential or For Counsel Only (or Attorneys Eyes' Only) by notifying all of the parties in writing within thirty (30) days of receipt of the transcript, of the specific pages and lines of the transcript which should be treated a Confidential or For Counsel Only (or Attorneys' Eyes Only) for a period of thirty (30) days after the receipt of the transcript. To the extent possible, the court reporter shall segregate into separate transcripts information designated as Confidential or For Counsel Only (or Attorneys' Eyes Only), with blank. consecutively numbered pages being provided in a non-designated main transcript. The separate transcript containing "Confidential" andlor "For Counsel Only" (or Attorneys' Eyes Only) information shall have page numbers that correspond to the blank pages in the main transcript. PROTECTIVE ORDER Page 3 SEP/26/2012/WED 09:25 AM LAW OFFICE FAX No. 512 477 4470 P.029/079 6. (a) "Confidential" information shall not be disclosed or made available by the receiving party to persons other than Qualified Persons. Information designated as "For Counsel Only" (or Attorneys' Eyes Only) shall be restricted in circulation to Qualified Persons described in Paragraphs 3(a) and (b) above. (b) Copies of "For Counsel Only" (or Attorneys' Eyes Only) information provided to a receiving party shall be maintained in the offices of outside counsel for Plaintiff(s) and Defendantts), An.y documents produced in this litigation, regardless of classification, which are provided to Qualified Persons of Paragraph 3 (b) above, shall be maintained only at the office of such Qualified Person and only working copies shall be made of any such documents. Copies of documents produced under this Protective Order may be made, or exhibits prepared by independent copy services, printers or illustrators for the purpose of this litigation. (c) Each party's outside counsel shall maintain a log of all copies "For Counsel Only" (or Attorneys' Eyes Only) documents which are delivered to anyone or more Qualified Person of Paragraph 3 above. 7. Documents previously produced shall be retroactively designated by notice in writing of the designated class of each document by Bates number within thirty (30) days of the entry of this order. Documents unintentionally produced without designation as "Confidential" may be retroactively designated in the same manner and shall be treated appropriately from the date written notice of the designation is provided to the receiving party. FF..OTECTIVE ORDER Page 4 SEP/26/2012/WED 09:25 AM LAW OFFICE FAX No. 512 477 4470 P. 030/079 8. Nothing herein shall prevent disclosure beyond the terms of this order if each party designating the information as "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) consents to such disclosure or, if the court, after notice to all affected parties, orders such disclosures. Nor shall anything herein prevent any counsel of record from utilizing "Confidential" or "For Counsel On1y" (or Attorneys' Eyes Only) information in the examination or cross-examination of any person who is indicated on the document as being an author, source or recipient of the "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) information, irrespective of which party produced such information. 9. A party shall not be obligated to challenge the propriety of a designation as "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to this litigation disagrees at any stage of these proceedings with the designation by the designating party of any information as "Confidential" or "For Counsel Only" (or Attorneys' Byes Only), or the designation of any person as a Qualified Person, the parties shall first try to resolve such dispute in good faith On an informal basis, such as production of redacted copies. If the dispute cannot be resolved, the objecting party may invoke this Protective Order by objecting in writing to the party who has designated the document or information as "Confidential" or "For Counsel On1y" (or Attorneys' Eyes Only). The designating party shall be required to move the Court for an order preserving the designated status of such information within fourteen (14) days of receipt of the written objection, and failure to do so shall constitute a termination of the restricted status PROTECTIVE ORDER Page 5 SEP/26/2012/WED 09:26 AM LAW OFFICE FAX No. 512 477 4470 P. 031/079 of such item. The parties. may, by stipulation. provide for exceptions to this order and any party may seek an order of this Court modifying this Protective Order. 10. Nothing shall be designated as "For Counsel Only" (or Attorneys' Eyes Only) information except information of the most sensitive nature, which if disclosed to persons of expertise in the area would reveal significant technical or business advantages of the producing or designating party, and which includes as a major portion subject matter which is believed to be unknown to the opposing party or parties, or any of the employees of the corporate parties. Nothing shall he regarded as "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) information ifit is information that either: (a) is in the public domain at the time of disclosure, as evidenced by a written document; (b) becomes part of the public domain through no fault of the other party, as evidenced by a written document; (c) the receiving party can show by a written document that the information was in its rightful and lawful possession at the time of disclosure; or (d) the receiving party lawfully receives such information at a later date from a third party without restriction as to disclosure, provided such third party has the right to make the disclosure to the receiving party. PROTECTIVE ORDER Page 6 SEP/26/20!2/WED 09:26 AM LAW OFFICE FAX No. 512 477 4470 P. 032/079 11. If a party wishes to include a document, or portions of a document marked as "Confidential" or "For Attorney's Eyes Only" in a pleading or other paper to be filed with the Clerk, that party shall serve the pleading or other paper on opposing parties but shall not file it. Service alone shall constitute filing for the purpose of any deadline. For 7 days following service, no party shall file the pleading or other paper with the Clerk except pursuant to a ruling on a motion for a Temporary Sealing Order under Rule 76a. Immediately thereafter, if no motion for a Temporary Sealing Order has been granted, the party who served the pleading or other paper shall file it unsealed with the Clerk. 12. If a party wishes to offer a document, or portions of a document marked as "Confidential" or "For Counsel Only" in evidence, any party may, at the time the document is offered, move for a Temporary Sealing Order. 13. Within one hundred twenty (120) days after conclusion of this litigation and any appeal thereof, any document and all reproductions of documents produced by a party, in the possession of any of the persons qualified under Paragraphs 3(a) through (d) shall be returned to the producing party, except as this Court may otherwise order or to the extent such information was used as evidence at the trial. As far as the provisions of any protective orders entered in this action restrict the communication and use of the documents produced thereunder, such orders shall continue to be binding after the conclusion of this litigation, except (a) that there shall be no restriction on documents that are used as exhibits in Court unless such exhibits were filed under seal. and (b) that a party may seek the written permission of the producing party or order of the Court with respect to dissolution or modification of such protective orders. PROTECTIVE ORDER Page 7 SEP/26/2012/WED 09:26 AM LAW nFFICE FAX No. 512 477 4470 P.033/079 14. This order shall not bar any attorney herein in the course of rendering advice to his client with respect to this litigation from conveying to any party client his evaluation in a general way of "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) information produced or exchange herein; provided. however that in rendering such advice and otherwise communicating with his client, the attorney shall not disclose the specific contents of any "Confidential" or "For Counsel Only" (or Attorneys' Eyes Only) information produced by another party herein, which disclosure would be contrary to the terms of this Protective Order. 15. Any party designating any person as a Qualified Person shall have the duty to reasonably ensure that such person observes the terms of this Protective Order and shall be responsible upon breach of such duty for the failure of any such person to observe the terms of this Protective Order. SIGNED AND ENTERED this day of , 2012. HONORABLE GISELA D. TRlANA PROTECTIVE ORDER Page 8 SEP/26/2012/WED 09:26 AM LAW OFFICE FAX No, 512 477 4470 p, 0341079 APPROVED AND AGREED: Joe K. Longley Texas Bar No. 12542000 LAW OFFICES OF JOE K. LONGLEY 1609 Shoal Creek Blvd., Ste. 100 Austin, Texas 78701 Telephone: (512) 477-4444 Facsimile: (512) 477-4470 Email: [email protected] MOORE LANDREY, LLP ETHAN L. SHAW Texas Bar No. 18140480 JOHN P. COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd., Ste. 100 Austin, Texas 78701 Telephone: (512) 499-8900 Facsimile: (512) 320-8906 ATTORNEYS FOR PLAINTIFFS Deanne C. Ayers Texas Bar No. 01465820 Ayers & Ayers 4205 Gateway Drive, Ste. 100 Colleyville, Texas 76034 Direct Phone: 817-267-9009 Direct Fax: 817-318-0663 ATTORNEY FOR DEFENDANTS PROTECTIVE ORDER Page 9 SEP/26/2012/WED 09:26 AM LAW OFFICE FAX No, 512 477 4470 p, 035/079 EXHIBIT "C" SEP/26/2012/WED 09:26 AM LAW n);'fICE FAX No, 512 477 4470 p, 036/079 Cause No. D-I-GN-09~002318 STEPlffiN MORENO AND § IN THE DISTRlCT COURT ALPHA MORENO § Plaintiff, § § v. § OF TRAVIS COUNTY, TEXAS § ZURICH AMERICAN INSURANCE § CON.WANY~GALLAGHER § BASSETT SERVICES, me. § AND THERESA BLAKE. § Defendant. § 98th JUDICIAL DISTRICT RULE 11 AGREEMENT COMES NOW; Stephen Moreno and Alpha Moreno, Plaintiffs in the above-styled and numbered cause, and submits for filing the agreement which has been executed between Plaintiffs and the Defendants. Said Agreement is attached hereto as Exhibit I'A" and incorporated herein for all purposes pursuant to Tex. R. Civ. P. 11. Respectfully submitted; LAW OFFICES OF JOE K. LONGLEY 1609 Shoal Creek Blvd., Ste. 100 Austin, Texas 7870 I Telephone: (512) 477-4444 Facsimile; (512) 477-4470 SEP/26/2012/WED 09:26 AM LAW OFFICE FAX No,512 477 4470 p, 037/079 MOORE LANDREY, LLP ETHAN L. SHAW Texas Bar No, 18140480 JOHNP. COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd., Ste, 100 Austin, Texas 78701 Telephone: (512) 499-8900 Facsimile: (512) 320-8906 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document was served On the following counsel of record by 1st Class U.S, Mail and by facsimile transmission on this the 11th day of March. 2009: Deanne C. Ayers Ayers &. Ayers 4205 Gateway Drive, Ste. 100 Colleyville, Texas 76034 2 SEP/26/2012/WED 09:27 AM LAW nJ;'FICE FAX No, 512 477 4470 p, 038/079 P.O. 80)( I ~~67 LAW OFFICes 5 I 2/4'17-4444 CAF'rrOL 5;,.••'l10'" OF BOOJ7fd2-4444 AlJ""'N, T"""$ 7871 1-"~7 :5 I :0:/477'44'10 I"A;O:: ..JOe:@,JO£LONOL£V,(:O,,", JOE K. LONGLEY Surn: (00 March 10,2010 Ms. Deanne C. Ayers AYERS & AYERS 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 RE: Rule 11 Agreement Cause No. D~1-GN-09-002378; Stephen Moreno and Alpha Moreno vs. Zurich American Insurance Company, Gallagher Bassett Services, Inc. and Theresa Blake Dear Ms. Ayers: This letter constitutes a Rule 11 Agreement between counsel with respect to certain documents to be produced in the above-styled and numbered cause and marked "Confidential' as follows: 1. All Classified Information produced or exchanged in the course of this litigation shall be used solely for the purpose of preparation and trial of this litigation and for no other purpose whatsoever, and shan not be disclosed to any person except in accordance with the terms of this Rule 11 agreement. 2. "Classified Information," as used herein, means any information of any type) kind, or character which is designated as "Confidential" by any of the supplying or receiving parries, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise. In designating information as "Confidential," a party will make such designation only as to what information that it in good faith believes is confidential information. Information or material which is available to the public, including catalogues, advertising materials, and the like shall not be classified. 3. "Qualified Persons," as used herein means: (a) Attorneys of record for the parties in this litigation and employees of such attorneys to whom it is necessary that the material be shown for the purposes of this litigation; SEP 126/20 12/WED 09: 27 AM LAW nFFICE FAX No, 512 477 4470 P. 039/079 March 10, 2010 Mr. Deanne C. Ayers Page 2 (b) Actual or potential independent technical experts or consultants, who have been designated in writing by notice to all counsel prior to any disclosure of "Confidential" information to such persons, and who have signed a document agreeing to be bound by the terms of this Rule 11 Agreement. Consulting experts, as well as testifying experts, must sign a document agreeing to be bound by the terms of this Rule 11 Agreement, however, such document signed by a consulting expert need not disclosed or filed with the Clerk if Rule 192.3(e) provides that the consulting expert's identity, etc. is not discoverable; and such signed document that is withheld shall be provided to the adverse party (along with all documents still subject to the protective order) within one-hundred twenty (120) days after the conclusion of this litigation and any appeal thereof. (c) One (1) ' (d) Each party to this action; (e) If the Court so elects, any other person may be designated as a Qualified Person by order of the Court, after notice and hearing to ail parties. 4. Documents produced in this action may be designated by any patty or parties as "Confidential" information by marking each page of the document(s) so designated with a stamp stating "Confidential." 5. Information disclosed at (a) the deposition of a party or one of its present or former officers, directors, employees, agents, or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a third party (which information pertains to a party) may be designated by any party as "Confidential" information by indicating on the record at the deposition that the testimony is "Confidential" and is SUbject to the provision of this Rule 11 Agreement. Any party may also designate information disclosed at such deposition as "Confidential') by notifying all of the parties in writing within thirty (30) days of receipt of the transcript, of the specific pages and lines of the transcript which should be treated as "Confidential" thereafter. Each party shall attach a copy of such written notice or notices to the fact of the transaction and each copy thereof in his possession, custody, or controL All deposition transcripts shall be treated as "Confidential' for a period of thirty (30) days after the receipt ofthe transcript. To the extent possible, the court reporter shall segregate into separate transcripts information designated as "Confidential" with blank, consecutively numbered pages being provided in a non-designated main transcript. The separate transcript containing SEP/26/2012/WED 09:27 AM LAW OFFICE FAX No.512 477 4470 P. 040/079 March 10,2010 Mr. Deanne C. Ayers Page 3 "Confidential" information shall have page numbers that correspond to the blank pages in the main transcript. 6. (a) Confidential" Information shall not be disclosed or made available by the receiving party to persons other than Qualified Persons. (b) Copies of "Confidential" information provided to a receiving party shall be maintained in the offices of counsel for Plaintiffs and Defendants. Any documents produced in this litigation, regardless of classification, which are provided to Qualified Persons described in Paragraph 3 above, shall be maintained only at the office of such Qualified Persons and only working copies shall be made of any such documents. Copies of documents provided under this Rule 11 Agreement may be made, or exhibits prepared by independent copy services, printers, or illustrators for the purpose of this litigation. (c) Each party's counsel shall maintain a log of all copies of "Confidential" documents which are delivered to anyone or more Qualified Persons of Paragraphs 3 above. 7. Documents previously produced shall be retroactively designated by notice in writing of the designated class of each document by Bates number within thirty (30) days of the entry of this Rule 11 Agreement. Documents unintentionally produced without designation of "Confidential" may be retroactively designated in the same manner and shall be treated appropriately from the date written notice of the designation is provided to the receiving party, Documents to be inspected shall be treated as "Confidential'; during inspection. At the time of copying for the receiving parties, such inspected documents shall be stamped prominently "Confidential" by the producing party. 8. Nothing herein shall prevent disclosure beyond the terms of this Rule 11 Agreement if each party designating the information as "Confidential" consents to such disclosure, or, if the court, after notice to all affected parties, orders such disclosures. Nor shall anything herein prevent any counsel of record from utilizing "Confidential" information in the examination or cross-examination of any person who is indicated on the document as being the author, source, or recipient of the "Confidential" information, irrespective of which party produced such information, 9. A party shall not be obligated to challenge the propriety of a designation as "Confidential" at the time made, and a failure to do so does not preclude a subsequent challenge thereto. In the event that any party to this litigation disagrees at any stage of these proceedings with the designation by the designating party of any information as "Confidential," or the designation of any person as a Qualified Person, the parties shall first try to resolve such dispute in good faith on an informed basis, such as production of redacted SEP 126/20 12/WED 09: 27 AM LAW nf;'FICE FAX No. 512 477 4470 P. 041/079 March 10, 2010 Mr. Deanne C. Ayers Page 4 copies. If the dispute cannot be resolved, the objecting party may invoke this Rule 11 Agreement by objecting in writing to the party who has designated the document or Information as "Confidential." The designating party shall be required to move the Court for an order preserving the designated status of such information within fourteen (14) days of receipt of the written objection, and failure to do so shall constitute a termination of the restricted status of such item. The parties may, by stipulation, provide for exceptions to this Rule 11 Agreement and any party may seek an order of this Court modifying this Rule 11 Agreement. 10. Nothing shall be designated as "Confidential" information except information of the most sensitive nature, which if disclosed to persons of expertise in the area would reveal significant technical or business advantages of the producing or designating party, and which includes as a major portion subject matter which is believed to be unknown to the opposing party or parties, or any of the employees .of the corporate parties. Nothing shall be regarded as "Confidential" information if it is information that either: (a) is in the public domain at the time of the disclosure, as evidenced by a written document; (b) becomes part of the public domain through no fault of the other party, as evidenced by a Written document; (c) the receiving party can show by written document that the information was in its rightful and lawful possession at the time of disclosure; or (d) the receiving party lawfully receives such information at a later date from a third party without restriction as to disclosure, provided such third party has the right to make the disclosure to the receiving party. 11. In the event a party wishes to use any "Confidential" information in any affidavits, briefs, memoranda of law, or other papers filed in Court in this litigation. such '(Confidential" information used therein shall be filed under seal with the Court 12. Unless otherwise agreed to in writing by the parties or ordered by the Court, all proceedings involving or relating to documents or any other information shall be subject to the provisions of this Rule 11 Agreement. 13. Within one-hundred twenty (120) days after conclusion of this litigation and any appeal thereof, any document and all reproductions of documents produced by a party, in the possession of any other persons qualified under Paragraph 3(a) through (d) shall be returned to the producing party. except as this court may otherwise order to the extent such information was used as evidence at the trial. As far as the provisions of any protective orders entered in this action restrict the communication and use of the documents produced FAX No. 512 477 4470 P. 042/079 SEP/26/2012/WED 09:27 AM LAW OFFICE P. 10 MAR-11-2010 THU 11:05 AM AYERS & AYERS FAX NO. 8173180672 March 10,2010 Mr. Deanne C. Ayers PageS thareunder~ such orders shall continue to be binding aiter the conclusion of this litigation, except (a) that there shell be no restriction 011 doouments that are used as exhibits in Court unless such. exhibits were filed under seal, and (b) that a party may seek tb~ written permissior; of 'the producing party or order of the Court with respect to dissolution or modification of such protective orders. 14, This Rule 11 Agreement. shan not bar any attorney herein in the course of rendering advice to his client with respect to this litigation from conveying to any party client his evaluation in a general way of "Confidential" information produced or exchanged herein; provided, however, that in rendering such advice and otherwise communicating with his client, the attorney shall not disclose the specifio contents of any "Confidential" infonnanon produced by another pmy herein, which disclosure would be contnu"y to the terms of this Role 11 Agreement 15. Any party designating any person as a Qualified Person shall have the duty to reasonably ensure that such person observes the terms of this Rule 11 Agreement and shall be responsible upon breach of such duty for the failure of any such person to observe the terms of this Rule 11 Agreement. 16. The terms of this Rule 11 Agreement constitute an agreement between the patties and their counsel and shall be binding upon the parties and their counsel. Please sign. below in the space provided if this accurately reflects our agreement. Thank you for your courtesy and cooperation. Joe K. Longley AGRE.ED: Attorney for Defendants SEP/26/2012/WED 09: 28 AM LAW OFFICE FAX No,512 477 4470 p, 043/079 e~iling for COUrts - Electronic service of Copies Proof of Service Jurisdiction: Travis District - Civil ~ause Number: D-l-GN-09-002378 Trace Number; ED227~Ol5700454 Court Assignment: 98th District Court Style/Case Name: Moreno v. Zurich bate and Time of Service: 03/11/2010 11:57:19 AM Serving Party Name: Joe Longley Documents: Rule II.pdf Parties of Record Delivery Type Joe K. ~ongley Electronic CaseFile Xpress John P. Cowart Electronic CaseFile Xpress Ethan L. Shaw Electronic ~aseFile Xpress Deanne Ayers Electronic CaseFile xpreas SEP/26/2012/WED 09:28 AM LAW OFFICE FAX No. 512 477 4470 P. 044/079 EXHIBIT "D" SEP/26/20!2/WED 09:28 AM LAW OFFICE FAX No. 512 477 4470 P. 045/079 l)) ~477-4444 GAPITOh S~"'l'IO~ OF' 800/71;)2-<\444 A,,"'T,•• ~>!i 78711-2e67 ~ I e/..q77--4470 FAX JOE K. LONGLEY WWW.JOELONOLEY.COM I eos SH""~ Cp SUIT!!: 100 AusnN, "TEXAS7570 ,. I ozl!: May 10,2012 Ms. Deanlle C. Ayers AYERS & AYERS 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 RE: Cause No. D·I-GN·12-Q00705; Joseph Ruiz and Amanda Ruiz vs. Everest National Insurance Company, Gallagher Bassett Services, Inc. and Cheryl Verge. " Dear Deanne: Pursuant to Texas Rule ofCivii Procedure 193.3(b), please identify all documents, communications, or information that Defendants Everest National Insurance Company, Gallagher Bassett Services, Inc. and Cheryl Verge have withheld from production under a: claim of privilege. If your material has been withheld as privileged, or if; pursuant to Rule 193.3(0), the withheld material is exempt from the requirements of Rule 193.3(b), please so indicate, Please identify each document withheld by date; bates number (if any); author; recipients; type of document; nature of content subject to claimed privilege and each privilege(s) claimed as to the document. Also, identify (as requested above) each document withheld from any subpoena request in any Deposition on Written Question, including the one which is made the subject of your objections set to be heard at 2:00 P.M. on Tuesday, May 29, 2012. Joe K. Longley IKL/mep SEP/26/2012/WED 09:28 AM LAW OFFICE FAX No. 512477 4470 P. 046/079 503574600 P.Ol/Ol TRANSACTION REPORT MAY/l0/2012!Tau 04:52 PM ---- -Ii OK 52,3>,326t ""-'-"'----'------Fffij LA W OFFICES OF JOE K. LONGLEY 1609 Shoal Creek Blvd" Suite 100 Austin, Texas 78701 (512) 471..4444 or 1-800-792~4444 .....".....-....-.....~,-'"..-..-,.,. .. -....,-_..,".FAX:- -(S12) 477·44 70 FACSIMILE COVER SHEET TO: Deanne C. Ayers Fax: 817-318-0663 From: Joe K, Longley Compauyr taw Offices of Joe K. Longley Phone: 1-800-792-4444 or 512-477...4444 Fax: 1~512·477-4470 Date: May 10, 2012 Pages including this cover page! 2 comments: Cause No. D"'1.•GN..12~QOi05: Joseph Raiz and Amanda Rutz vs, EV'er~tNatiol1af Insurance Company, Gallagher Bassett Services, Inc. and CJu~ryfVerge. Correspondence. CONFIDENTIALITY NOTICE The documeraa Iiccomp~y:ln8 tbis fll.csimHetransmission contain QOT\tidentlill ij1:e~matiOllWhich jg l*llIjI tll'ivilel!ed. The information Is Intondod only for the lUll!. of the recipient named &bCN6. If YOIl have recetved this fucslm11ein error, please jmIl")~qiil.t6[y noti:f.y us by telephone to a;n'llng~ for return of the .1:••• ' '1. j .1.•..•••...., ..._••.• I. •••.••• __ ,l: •. _ •.•...._,. L l-~ _ .••4I>!~.••..:I .""-'1. ",,,,,or, ;1;•.•.•.•1..•••.•••••.•...••.•.•__.: __ .,J;•••••.O"\.f.;•••••••..••• L!.. .••. SEP/26/2012/WED 09:28 AM LAW OFFICE FAX No. 512 477 4470 P. 047/079 EXHIBIT "E" SEP/26/2012/WED 09:28 AM LAW OFFICE FAX No,512 477 4470 P. 048/079 JUL"'2S-2011 'ru~02:97 PM ilYl'1S III AYHRS FAX NO. 817B180672 P. 03 CAuse NO. 2010-20385 1 . LEYJ:;)I ME1NJIVA~ § IN THl$ lJlSiRIOr OO\J~1' § 1- i Plralrrtiff, § ! ,9 i ) ve. ~ if 65Tt1JUDIOIAL t:lISTRIOT INDeMNITY IN&URANC~ OOMPANY i or- NOHTH AMERfCA) ~A\"I.AGHe::~ ~ SAssm SERVloes, INC,. anel ~ rarmSA BLAKe. § 0 Oelf+lnd61nw, ~ "IAR.~I$ COUNTY,iSXAS TO: ~(alrrttrf, Ulyd! MerrJIv;.tf, bysnd thro'.IQh h~l'~tt¢meyofreQQrd,ethan L, Shaw and ii.I John P. Cowart, MOOI'(i)L.ancil'GY, LL?, :lIl'ldJoe K. LonglElY, 1eOQ Shoal Creal,Blvd.! Sutta 100 AustIn, T$XSIe r~701 j I COME NOW, INDEMNITY INSURANOE COMf'ANY OF NORTH AMERIOA, 'I \ GALLAGHeR eAsSffi SERVICESJNC,1 snd1E!RESA EH.AKEIbefanclantshersln,~nd, l I fllffl fulJ;;tli~lr ~~Ipptstn$nt(;,dPt1vlltlg~LOS1 aa foDow: 1 j ! Oe-fendantw 6ubmftted doouments oonta.lned In tlla and claim 't;;ertelln their ai.lltm i.I J!iilnUQry ! flows fur In came~ .submlasf¢ll'l, on 11120111 th~ C6~ri ruled lTalddocumenle :1 , I we~ not au~lecl to dlSd00ure in 9!liC;QVarY. on J'IilnUElry i2,'&011, PlalMtlff flied ~ Bvr;lnas$ '\ j ~Q~rd Affidavitof j)yftohald llidustrltlls, whIch1l¢1'ltaIMd flOl'ne documents wttlen VoJar~aillO ,I II')Dl!)fendal'lt Getllagher's claim fils and GIaI!'l1notas, f.lt'l well &S addlttonal doouments were 1 l'I!:lt oontalner.t In Defendant Gallagher's olalm fIla and claim notes, Por c~rlty pl.lrpoaas, thlt:! sup~lema.ntal PrlVJfGQ6 LCl~ sata forth th& speclflo doollrnenttl oVer which the DGfand~nw $&Gali. ~ pI'Mlege: SEP/26/2012/WED 09:29 AM LAW nHICE FAX No. 512 477 4470 P. 049/079 • etnaJI liltrlng dated Janu£1ry 21, 3009 •.•.FebruSiry 21 200fl (PrItchard Reoorde b~EIS numbers :30181. e2, 33) , Emall strIng da.ted February 8, 200S (Prltchard ReCQrd~ btltaw mlml:rers 34, ns, S9t 60)(eubm~ted In camera In claim notlil dat$d ~/09) •• gm~!Istring datEtd r:GbrusJjI 171 ~OQQ (PrItchard ReC\11$ b$te:-1 numbet$ 112) 5rnall string dated Maroh 18l.2009 - Maroh' 1ay '200~ (Pr1tCttard Records bates numOers 92, Q3) • Emall dst~ Mtlroh ${), 200S (PritCihard ~!:llcordsbates numbers 6)61 97}($l,Jbl'\'lttiad fl'l oalf1e~ in. olalm note deled 4128/09) • lE.maildated JLI~ 8,2009 (Prfk;nattl ReoQrds baf.ea-numben110, 201 21, ~, 23, 24) 'Small atriMy dai~CIOotoJ;.~r·27r2()OQ' - Oct.ooor 28, 2009 (Prlt~rd Recortl$ biltlas numbl9!'Q 13. 14, 1~) t Smnli datE.";!'O~p$r 27. 200U (Prttoham RtlOOn:I!4 Inltes 11umbeJ's 161 17, '18,100) It tErnall string df;J.~ J~n~l~ry27, 2009 •...Je.nuwy 50, 2009 (Prl~hard RI/loord/i> bl:Itss numbera 215) 261 27) I Emalr df)tad Jahuary. 21~ 200S (Pritchard RGaordlil bates nUfnj,st'S B1, Il I ! I SEP/26/2012/WED 09:29 AM LAW OFFICE FAX No, 512 477 4470 p, 050/079 JUL-2e~2011 TUE 02~27 PH AYE~ & AVERS rAR NO. 8173160672 • Smlilll RrtrlnQdst&d April 19 ~010 (Pritchard Reoord& blSltam nllmbers a, 4,6, e) , E:mall strtng dated AprH 1St 20'10 (Ptitohard ~GOrcf$ biltee numoam 101,102) t R6l!ill!lrJe loformatlcm eontaJ"~ In Qltalm 11Qtsa ~nd claim aumrnarlea (PI1tQ~ardRi!icoltis baltes llumt:lel'$ $9,40, 4&, 44, 4a, 46, 47,48, 561 79, BO, 04, as, OOt S7Xsubml!t$d Ih oEll'Mel'til~ CI~Ih1 note da1ed Apr!! 26, 2009 by Terllt~ Slake regarding 'communication with T!':lllyt"lsrez (lSubmltll/ld In t:lamata) OlaHm note dated Jtlnuary 20; 20Qe by Tel"Stla lilske regardlnl) communication with Brown elms law flln1 (aubmlttiftd.ln !,"rflmera) Re'specIfUlly sublTl!fuild, AYERS 8.AYElRS ay~ ~t11 ,~ r--~~·~N~~C~.~AY~E~~-$----~-- .state Bar No. 01465820 JUf..IE B. TEBBETS seats Bar N(,\, 0079$419 A'n'ORl'JaYS rtOf( Dl:!F'ENOANTS' SEP/26/2012/WED 09:29 AM LAW OFFICE FAX No, 512 477 4470 p, 051/079 FAX NOI 8173180672 de~l"ffllOll/mOFJlBB.'\lIC;l; llle~by olilrtlfY i/'mt .onthl~,tH~~ day cf July, ~011,Q true and oorreot copy o1the ~bove"'~ f()l'!ilgCllhS document Wl!!ilI I!lI!J1'Ved OM lead counsel of l'eoord 10r !=,1a1~1VIa faOSlmlle, lIeB, TebbetG 1- ~ 1 I, , 'j I j 1, 1 i 1 'I II ~ I SEP/26/2012/WED 09:29 AM LAW OFFICE FAX No.512 477 4470 P.052/079 I, Chris Daniel, District Clerk of Harris County; Texas certify that this is a true and correct copy of the original record filed and Or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this 1J.U1~,,6 2012 Certified Document Number: 49683319 Total Pages: 5 Chris Daniel, DISTRICI' CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 eleetronicaUy tra.nsmitted authenticated documents are valid. If there is n quesnon regardtng tile validity of tbis document and or seal please e-mall [email protected] SEP/26/20!2/WED 09:29 AM LAW nFFICE FAX No.512 477 4470 P. 053/079 EXHIBIT "F" SEP/26/20l2/WED 09:29 AM LAW OFFICE FAX No, 512 477 4470 r. 054/079 CNQ21ROl GALLAGHER BASSETT SERVICES, INC. 04Aug200~ J?AGJ:: PRINT CLAIM NOTES 1 ! CLkIM ~1BER: 001627-037609-WC-Ol (OPEN CLAI~~T NAMt: MORENO w~.StEPHEN i hCCIDENT DATE: 10-22-2007 ENTRY P~TE 11-16-2007 (13;01) SUBJECT: 022 MEDICAL BILLS/REPORTS I ,lI.O'l'ilOR SYS'l'~M G-ENtAA'n;O DeN #2007316F40q0023 has been a~signed to Me Vendor CONCENTRA I I ENTRY DATE Il-lG-2007 (13:01) SUBJECT: 022 MEDICAL BILLS/REPORTS I AUTHQR SYSTEM GEN£RAT~D peN #Z0073~6F4040025 has been assigned to Me Venoo~ CONCENTRA ENTRY DATE 11-16-2007 (13:01) SUBJECT: 022 MEDICAL BILLS/RBPORTS I AUTl-lOR I SYST~M G~NS~~TED i DeN #2001316F~O~0026 ha~ b~an as~igned to Me Vendor CONCE~fRA ENTR¥ bAT!;; ~~-~6-2007 (13:0l1 S~JtCT: 022 MEDICAL BILLS/REPORTS AUTHOR SYSTSM GENERATED I I DCN #2007316F~040027 has been assig~ed to Me vender CONCENTRA ! i l EN'J'RY PATE ll-io-2007 (19:29) SUBJECT = 005 RESERVING AUT,HOR SYSTEM GENERATEO Tot~l ~arience wo~~sneet - Created by BLAKE. TS~SA - Tx EXPERIENCE ~*~~~7~~~~~~T~*••Y~~.~.w~v.OOl INDEMNITY MEPICAL eXPENSg TOTAL EXP 000003285 5227 o ~21S 0000097~7 ! INDEMNITY I AWW Race; 391 TT R."t.e~ 274 PO R.a.te: 2'74 Paid To Date: 1093 Add~tional TTr ~ a Weeks ~. 274 (race) 2192 PO Bas: ot of 0 (mbr)~# 0 Wks*R~te o (:rate) I 000000000 srBS: 0 Months * o (rate) Other: 0 o I O!;.h~rt0 0 : Other: f INDEMNITY TOTAL~ 0000032B5 MElJ!CAL I !?Q,id To Date; 727 Add'l ~ticipated: I I Doct-or: 1500 Hospital: o ! I Drugs, Therapy, ~tc.: 2500 Ocher: DME 500 I Other: 0 o Other, 0 o 1 MEDICAL TOTAL; 5227 ! REAAB!LITA'l'ION i paid to Da~e~ 0 hdd'l Anticipated: I CONTINUED ON THE NEXT PAG~ i ! I SEP /26/20! 2/WED 09: 29 AM LAW nFfICE FAX No, 512 477 4470 p, 055/079 1 1 CNQ21R01 GALLAG~~R BASSE~ S~Rvrc~s.lMc, ()4A\1g200~ rAGE 12 ! PRINT CLAIM NOT~8 ! CLA1M NUMBER : 001627~C3?609-WC~Ol (OPEN CLA!~T NAME, MORENO ~~.STEPHEN I ACCIDENT DATE; 10-22-2007 ! Consultant Fee: o Program Cos t : o !, Training/Sch./'rrans; a Other: 0 o " Othe::-: Othel;"~ REHABIL1TATION TOTAL; o EXPENSE; Paid To Oa.te~ IS Add'l Anticipated: Legal: a tnvestigation: o Co~~t R~~ords, ~hotos, p1.lbHc RecoJ;o.s; o Managed Care Fee; 1200 Other: 0 a Othe;-: 0 o Othe~; 0 o EXPENSE 'I'O'I'AL: 1215 TOTAL EXPERIENCE, 000009727 RgJi.SO~, CLMT SUSTAIN'E'DANKLE IN.:raRYAND REMAINS OFF WORK. INDEMNITY Sllr'l'FOR AN ADDITIONAL S WKS OF DISABILITY. MEDICAL ArJLOWS FOR ~!U VISITS, THERAPY, MEDS AND DME. Ex~~Sg SET FOR MANAGED CAR~ FEES. S;N,!,RY DATE 11~16'2007 (~~:Z9) SUBJECT; OOS RESERVING AUTHOR SYSTEM GENERATBD Initi~l Notification alert sent to SUZIE ~OTa This alert was gan~ratad for the following re~eon(6): - Total Experience of 9,727,00 at or over th~eshold! 5,000. Alert note created by LNQOO. ENTRY PATE 11-16-2007 (19:29) SUBJ~CT: 001 ~ILE NOTES AUTHOR SYSTEr4 Gll:NllRA'TED RE~~T1TIVE ~A¥ SCHED. FOR 1 WKS. FOR TOTAL OF 6 PAYMENTS to~ $273.20 PAYEt, S~E~aE~ MORENO MA~L: STEPHEN MORENO ~IRST PA~M~~T DA~E! 11/20/01 DISABI~ITY START D~TE: 11/20/07 ?A~ COD~I TTb ~SMpoRAkY TOTAL DISABILITY MESSAGE: STANDARD ENTRY DATE 11-26-2007 (19:51) SUBJECT: 001 FILS NOTES AOTfloR Sl..AI Referral sub~itted to Concentra to assign FC~ to claim for r~cord retrieval. ENTRY DATE ll-27-2007 (18;20) SUBJECT: 022 MSOICAL SILLS/REPORTS AO'tHOR SYSTEM GENJ::AATED QRSATER AUSTIN ORTHOP ODS; 09-Nov-2007 ~ 09-Nov-2007 BILL SENT POR B!LL REVIEW PROVIDER NAME: GREATER AUSTIN bRTHOPAEbICS ?ROVIDER aILL D~T~: l3-Nov-2007 TOTAL LINE AMOUNT: 18.00 AMOUNT ON BILL: 7$.00 CONTINUED ON THE NEXT PAGE SEP/26/2012/WED 09:30 AM LAW OFFICE FAX No. 512 477 4470 P. 056/079 i ! CNQ21ROl GALLA@HER DASS~TT SERVIces, rN~. . PRINT CLAIM NOTES I ! CLAIM NUMBER : 001G27-037609-WC-Ql (OPEN cr.J\.:I:MAN't NAME: MORENO ~~tSTEPHEN ACC!DENT DATE: 1-0-22-200"1 I DCN #2008002F9061l47 been assigned to vendor has Me CON~~NT~ ! E:N'fRY DATE 01·0B,200a (14:1~) SUBJ~CT, 022 Me~I~ gILLS/REPORTS \ AUTliOl< SYST£M GENERATED I DeN #200S002F9061l48 nas been assigned to Me Vendor CONCENTRA ENTRY DATE 01-08-2008 (21:14) SUBJECT: 005 RESSRVING I AUTHOR SYSTEM G~ERATED Total ~~erienoe Worksheet • created by BLAKE, TERESh - TX •• W;WW••• ~TT.~*7*.**~~*t*.~~*_ ToTAL EXPERIENCE *•• *«.~~2~~~.~~~~~*-~**.*v.OOl I INDEMNITY MEDICAL REHAB EXPENSE TOTAL EXP i 0000049~~ 7792 0 1786 000014S04 INDEMliI'IT'i AWW Race; 391 TT Rate, ~14 PD R~te, 274 Paid TO DaCe: I Additional TT: # 8 Weeks •. 274 (rate) PD Bas: 0% of 0 (mbr)-j 0 Wks*RacE o (race) I 1 000000000 SIBS: 0 Months * o (rate) ocher: 0 o Ocher: 0 o onher s IND!MNITY TOT~: 000004924 MED1CAl. Paid TO DaCet 3292 Add'l knticipaced, boc1:or: 1500 Hospital,; o Drugs, Therapy, etc.: 2500 Other! DME 500 Other: 0 o Ol;:her! 0 o MEDICAL TOTAL; 7192 REH.:il"BILITATION Paid TO Daee, o ~dd'l Anticipated: consult.ant Fee: o Program COJ;Ot; o Tralnlng/Scb./Trans: o Ot-her: 0 o Other: Other: REHABILITATION TOTAL: o EXPENSE; I Paid To Dolce: 588 Add'l Anticipated: Legal: o Investigal:.ion; o I Court:. Reeords, Photos, PUblic: Reoords, o Managed Care Fee: 1200 Other: 0 o other: 0 o other: 0 o EX~ENS~ TOTAL: 1786 Ii T~~ EXp~RrSWCE, 000014504 REASON: CLMT SUSTAINED ANKLE INJU~Y AND REMAINS OFF WORK. INDBMNI1Y SET FOR I CONtrN0eD ON THE aEXT PAGE i I SEP/26/2012/WED 09:30 AM LAW (lJ;'fICE FAX No. 512 477 4470 P.057/079 CNQ21ROl GALLAGHER BASSET':!' Sa:RVICBS, INC. 04AI,lg2009l?AGE 31 ?RINT CLAlM NOTRS ! \ CLAIM NUMBER; 001627-037609-WC-Ol (OP~ CLAIMANT NAME~ MORENO -*,STEPHEN j ACCIDENT DATE: 10-22-2007 I ~ ADDI'l'IOll.l>.l. a WKS OF DISAS!:lJt':r'l. MEDICA'(. ALLOWS f'OR FlU VISITS, TIiEAAPY, i I MEDS AND bME. EXPENS~ SET FOR MANAGED CARE FEES. ,i I ENTRY DATE 01-08-JOOB (21;16) SUBJECT; 001 ~tLE NOTES AU'l.'EOR SYSTEM GENERATED REPETITIVE PAY SCHED. FOR 1 WKS. FOR TOTAL OF 6 P~YMll~S FOR $213.2D I PAYEE! STEP~EN MORENO ~I~; STEPHiN MORENO FrRS~ PAYMENT bATE: 1/08/0S DISABILITY START DATE~ 1/08/08 I PAY CODE: TTD TEMPO~Y TOTAL DISASILITY 1 i MESSAGE: STANDARD El'Il'RY DATE 01-09-2008 (02:00) SUBJECT: 012 MANAG~ CAkE tNVOICES AOTEOR. SYSTJj:M GENERATED COVENTRY ~ Invoic~ #' O~21Z627C7a199 Case #: OR~lZ627C7el99 PrOVider ROUND ROCK Ml;'!OCTR HOSPITAL, Oate(s) of Service 10/22/07 to 10/23/07 Total Charge5 ),Sl.S.4S ~~ll Review Reductions, 913.00 PPO Reduction .00 Additional Discount .00 Recommended Allowance 2,90~.45 Bill Review Fee 32B.05 ppO F\!Ie! .00 Tax .00 Tocal Amount paid 328.05 Fee to ba proceeeed at month end, fi of Lines: 13 ENTRY DATE 01-09-200B (OS~SS) SUBJECT: 001 FI~E NOTES AUTHOR SYST~M GEN~~Eb GALLAGH~R BASSETT LOSS NOTIC~ (1) Report Date, 09-Jan-200a Client:TEMPORAR¥ SERVICES 1NSURANCE Contaet;MICHEL~ MAX~LL C/O KENS!NGTON MGMT.QROUP PO BOX l0027 ~E>O Loca.tion; 504? -44TX 2ND FLOOR,G~NES!S BUILOING TMD OF HOUSTON GEORGE TOWN HOUStON KY TX US 9!t999 Reason For Notice, Reserve Change claim Number:001627-037609-WC-Ol Statue,QP OPEN we Clai~ Type;I Accident Scate:TX Benefit Scace,TX In SUi~!N L~gal f~~; Ind Adj, Accident Date/Time:~2-0ct-2007/13;OO GB Notified:25-0ctr2007 RTW~ Claimanc;MORENO,STBPHSN BirthdaceI03wJ~-lS7S Age! 32 Sex!M SSN:XXX·XX-929S Job Class:S191 INSTALL ELBCT~ONIC DOOR/BANK AWW: 390 Occupation:GENERAL LABOR Claim Descript.ion:WHILE CHARGING THE FORKLrFT. filS FOOT WA.S ROLLE:O OVER E-Y TH1i: CONTINUED ON THE NEXT P~GE SEP/26/2012/WED 09:30 AM LAW OFFICE FAX No, 512 477 4470 p, 058/079 I I i ! j \ CNQ21ROl GAI.LAGHBR BASSETT SERVICES. INC, 04Aug2009 PAGE 41 i I1R1NT CLJ\;J;l'! N'OTES i 1 CLAIM NUMl3ER • 001627-037609~WC-Ol (OPEN CLAIMANT NAME: MORENO **,STEPHEN \ ACCIDENT DATE: lO-2:Z~2007 ! COVENTRY - Invoice #; 0R21Z527C79925 Case #: oRilZ627C7992S Provid!!>r COLE, DEBRA Date(8J of Se~iee 12/19/07 to 12/19/07 I, tocal Charges 350.00 i aill Review Reductionsl 211.25 j ppO ~duccion .00 Addi~ional Discount .00 Recommended Allowance 138,'S Bill Revie~ Fee B.50 I p~O Fee .00 I tax .00 Tot~l Amount paid 8.50 Pee to be proce~$ed at month end, # of Lines; 3 __ w~_~ ~ ~ -~~----~~----~-~------~ ENTRY DATE Ol-15~2008 (Q9:03) SUBJSCT: 012 MANAGED CARE INVOICES I AUTHOR SYSTEM GENERATSD I COVENTR¥ - Invoice #: OR21Z627CBDO~3 case #= 0R21Z627CB001J I ~rovider THlnD P~TY SOLUTIONS Date/e) of service 12/19/07 to 12/19/07 I Total Charges 253.19 Bill ~eview Reductions; .00 PPO Reduction .00 Additional Discount .00 I Recommended Atlowance 253.19 Bill Raview Fee &.50 PPO Pee .00 I Tax .00 Total Amount Paid B.50 Fee to be processed at month end, ~ of Line~, 1 ENTR¥ OJ\TE 01-16-2008 (13~33) SUBJECT: OOS RESERVING AUTffOR MIRA GEN&P.A.1'BD MIRA Summary Report THIS CLAIM HAS A vARI~Cg TO MIRA OF, $1,847 V~IANCSS BETWEEN GB AND MIAA INCURRED MUST BE DOCUMENTED IN NOTEBOOK SUBJECT 005 MIRA Summary Report 01/16/08 scate: TX Accident Da.te 10/22/07 GB Injury Type as T~MP TOTAL/PART Open Oace 10/29/07 MIRA Injury typer 5 Reported DatI! 10/25/07 ~cc Type Coae 1006 STRUC~BY MOVING OBJECT Claimant ZIP Code: ,S6£!4 Acc Source Code ; 6868 VE~ICLE - TlRE/RET~ Dace of Birth/~ge, 06/03/75 ~~nder/M~rit~l s: MALE / MARRIED Hire: D3.t:Q oa/O~/07 Surgery N Et!I~ Lengt.h Sv¢ t rropairment 0 MMI Dace; Avg Weekly Wage 390 j Part of Body 012S FOOT, LEFT Compensation RaCe: 273 Nacu~e ot LOss 9018 CONTOS10N, BRU1S~ RTW Dat.@ \ CONTINUED O~ ~~ ~XT P~G~ ! I I I ~ ! 1 SEP/26/2012/WED 09:30 AM LAW nFFICE FAX No. 512 477 4470 P. 059/079 CNQ2l."ROl GALLAGHER BASSETT S~VICES, INC. 04Augl009 PAG& PRINT CLA!~ ~OT~S CLAIM NUMBER : OOlb27~C~7609-WC~Ol (OPEN CLAIMANT NAME; MORENO **/ST£P~E~ ACCIDENT PATE: 1O~22·2007 Losl'! cover ••ge 11 STATE ACT TRAUMA In Sl,liC N/N NeeI job Class 5191 INSTALL ELECTRONIC DOOR/B Method ot Bettle: 1 NOT SUBSECT TO SETTL~~~NT ***BREAKOOWN Of F~rD CATEGORIBS**· Med.ical LAST ?ROC: 01/08/08 ______~~.~v.·Chgd Cost Drivers TTD 3276 DOCTOR leO? Rehab Ev: 0 ·Paid Greate~ tha~ 'rpp 0 H.o&~it!l.l, :3341 !,gl/Ban , 0 - Pharmacist Lump SUtl\; 0 Phy 'I'her; 302 Me; Fees ; S8S • Hospital In sch Awd , 0 Nurse 0 Rerna.rrge, 0 - 'I'DPaymencs Death!Fn: 0 IME 0 VRDT 0 I Ch.i);'o 0 Med Trav: 0 i Drugs 308 Ttl duration 1 months ~ctual duratio\'l. :3 month.a •.•..•CLAIM' SUMMARY Paid M!RA ~eserve MlltA TOt: EXp R/F Tot Exp Difference I TD 3,278 1,7~H sion * ~ ! ppb/otl't: 0 0 0 '* ~ !;>TD 0 0 0 * .. 1< .•. Death 0 0 0 I TOT IND, 3,278 1,794 5,072 4,924 - JAB Medical: E:,5190 2,702 51,692 7,792 . 1,900 i Rehabil: 0 0 0 0 + 0 EXpen&$: 991 59~ l,SS7 1,788 + 201 TOTAL: 11,259 5.092 16,351 14,S04 ~ 1,847 Racev .•.0 +0 +0 \ ====~::I::r.J:t==-. i;i*,:,=,d<;:o:='~======:111 •• ==- ! Net't'OTAL: "'11,259 +5,092 +16,351 "1-1'1,504 -L847 ENTR¥ DlL'l'E: 01"17-2006 (11:44) SUBJECT: 012 MANAGED CARE INVOICES AtJ'l'tl:oR SYSTEM GE~RATED I, Co~~TRY - Invoice #: OR21ZG27CS0271 Case ~~ OR21Z627C8027l Provider THIRD PARTY SOLUTIO~S Date(s) of Service 12/05/07 to 12/07/0; Total Charges: 333.77 Sill Review Reductio~~! ,01 I PPO Rf;!(i.uctiOn .00 Additional Discount .00 R~commended Allowance 333.76 Bill Review Fee 8.50 PPO Pee ,00 Tax ,00 Total Amount Paid 8.50 F~~ tQ be processed at month end, # of Lin~s: 3 ENTRY DATE 01·l7-20Ca (17:00) SUBJEC!: 022 MSOICAL a~LLS/R8PORTS AUTHOR SYSTEM GENERATED CONTINUED ON TaB NEXT PAGE SEP/26/2012/WED 09:30 AM LAW OFFICE FAX No. 512 477 4470 P. 060/079 CNQ21ROl GAL~RER SASSETTSERVICES, INC. 04Aug2009 PAGE 49 PRINT CLAtM NOTES C~IM NUMBER: 001627~037609-WC~Ol (O~F.N CLAIMANT NAME: MORENO **,STEPRBN ~CCIDENT DATE: 10-22-2007 ~CCEPTED BY: 0,~3S1 T~RESA StAKE ENTRY DATE Ol~27-200a (19:SS) SUBJ~CT: 005 RESERVING .h.OTHOR aI..AKE,TERESA Addressing MIRA. Agree tha~ reserves need LO be adjusted and following re~erve: worksheet com~lete:d. ReseIVe notification sent to client. 32 year old male who ~ustained a left foot contusion and developed a staph infection. Disability continuee. reM ha5 been assigned to obtain medical documentation. A DO exam will be requested to addre$$ extent of injury, ~~I/!~ and return to work. Indemnit:y: Paid to date; s 3.824.85 Reserves remaining: $ l,O~Sl.15 12 weeks @ $273.20 $ 3,278.40 S~ ® $273.20 $ 4,09S.00 Tot.a.l; $ 11,201.25 Medical: Paid t.o da.te: $ 7,790.41 Reserves remaining: ~ 1. S9 Doctor $ 5,500.00 Hospital (!npatient) $ 20,OOO.O(] Drugs/PT S 10,000.00 Diagnostics S 1,500.00 FCM s 3,200.00 DME $ 1,200.00 T01;;al, $ 49,190.41 EXp~l'l5e: Paid to date $ :\',024.79 Reserves remaining $ 763.21 OR I Bill Review $ :;1.700.00 Surveillance S 2,500.00 DO $ 1,400.00 RME / PEER $ 1.S00.00 Total~ $ 9,124.7'9 TO'I'AL RBSERV£S: $ 69,516.~S ENT~Y DATE 01-21-2008 (20:16) SUBJECT: 001 FIL~ NOT~S AUTHOR BLAKE,TE;RESA ~octor contact: completed w1th Ra.quel on 0~/21/08. Received call from Raquel with advisin9 they have not been able to reach claimant to schedule appt due to number on file being disconnec~ed. A4vieed I will try to find an alternate number and let her know. :ENTRY OATE 01-27-2008 (20:l7) SUBJECT: 001 Prr.~ NOTES AUTiioR BLAKE,TERESA ! ! i l I CONT~NDED ON THE NEXT PAGE 1 I 1 ! ! t j ~ SEP/26/2012/WED 09:30 AM LAW OFFICE FAX No. 512 477 4470 P. 061/079 CNQ21R01 GALLAGHER BASSETT SERVICES, INC. 04.Aug~009 PAGE 66 PRINT CLAIM NOTES CLAIM NUMBER ~ 00lG27-037g09-WC-Ol (OPEN CLAIMANT NAME: MO~NO ~·,S!E~BE~ ACCIDENT DATE: 10-22-2007 ~NrRD PARTY SOLUTIONS DOS; 09-Jan-200S - 09·Jan-200a SILL SENT FOR BILL REVIEW P~OVIDER N~B; !HIRD PART~ SOLUTIONS I P~OVIDER BILL DATE: 2o-~an-200B 1 TO'tJ.I.LLlNE AMOUNT: 4).86 i AMoUNT ON BI~L: 43.86 DCN NUMBER: 2QOS028FG128092 SCANNED BY! FIRST HEALTH I .l\.CCEPTED BY: 024381 'l'li:Rll:SA BLAKE I ENTRy DATE 02-05-2008 (13:27) SUBJECT~ oos ~ESERVrNG AlJTBOR MIRA GENERAtED MIRA summary R~port I1 THIS CLAIM HAS A VAIUANcE TO MIRA. 01;'; .•. $34,~5e VARIANCES BETWEEN GB AND MIR.l\. rNClJRRBD MUSt' BE DOCUMEN'l'£D IN NOTEBOOK Srrs.,::rE;C'l" I OOS MIV. SUmllll!lry R.eport 02/05(09 State: TX Accident Date 10/22/07 I GS Inju=y Type OS TEMP TOTAL/PART Open Date 20/29/07 MI~~ Injury Type; 5 Reported Date 10/7.5/07 Ace Type Code 1006 STRUCK SY MOVING OBJECT Claimant z!p Code; 76664 Ace Soure~ cod~ : 6868 VEHlCLE - T1RS/RETREAD Date of Sirth/Age~ 06/Q3/75 GeaderfMarital S: MALE / MARRIED Hire Date 08/06/07 SVC I, Surgery N &mp Length I % Impairment 0 MMI O~~e; Avg Weekly Wage 390 Part of Body 0123 FOOT, ~EFT Compen~ation ~ate: :173 Na~ure of LOSS 901B CONTUSION, SRUISE R'l'W Date LOSS coverage 11 STATE ACT TRA~ In Suit N / .\iI NceI Job class 5191 INST~ eL!CT~~~C DOOR/B Method of Settls! 1 NOT SUBJECt TO SE~LEMENT ···BRtAKDOWU OF PAID CATEGORIES**~ IndQmnity Medical Other LAST PROC: O~/z2/0a *chgd Cost Drivera TTD 409B DOC'rOR 2484 R.ehap £v. o - ~~ediction Flag TPD o Hospital; 12285 LgljBen : o -paig Greater than Lump sum, o Phy Ther: 302 Me ~~es ; 13119 - TD Payments Soh AW'd ! o N~~.e o Remarrge; o DI!!l!1th/Fn: o 1MB o VRDT o Chho o Med Trav: o DruSlii 3069 TD duration 2 months Actual durat:ion 4 months Ww"'CLJ\.IM SUMMARY Paid MIRA. Reserve MIRA Tcll; Ii:lCp RI F Tot Exp 'Differen.::~ TD ~,09a 2,752 6,850 * PPD/Oth: 0 0 o '/( .b>TD 0 0 o • Death 0 o * TOT IND: 4,098° 2,752 G,eso 11.497 + 4.647 Medical: 19,585 7,485 27,070 49.191 + 22,121 CONTINUED ON THE NEXT 1i'AGE SEP/26/2012/WED 09:31 AM LAW OFFICE FAX No. 512 477 4470 P. 062/079 i I CNQ2~'ROI GALLAGHER B~SSETT SERVICES, INC. 04Aug2009 PAGg 67 i ?RINT CLAIM NOTES I I CLAIM NUMBER : 001627·037609-WC~01 (OPEN 1 CLAI~T ~AME: MORENO '~,STEPBEN i ACCIDENT DATE: lO~22~2007 .., Rehabil: 0 0 0 0 0 Expense: 13,125 71 1::1,196 20,686 + 7,490 Ii ... ! TOTAL: 36,e08 10,308 47,116 81.,374 ~4,2SS i ReeD" +0 +0 +0 1 ======::::I.==::::::t===== *.ttIl).t.:.~:c~. ====:=:::::===== Net:TOTAL: .,,36,90e +10,3M "1"47, 116 1-81. 374 +34, :2SB ENTRY 01l.TE Q2JQ5-200S (14:01) SUBJECT: 022 MEDICAL BILLS/REPORT~ I AUT}iOR SYSTEM GENE~~ED DCN #200e028F6128092 has been assigned to Me Vendor CONCENTRA ENTRY DATE 02-05-2Q08 (lS;IS) SuaJ~CT; 012 MANAGED CARE INVOICES AUTHOR SYSTEM GENE~T~D I CoV~NT~Y Invoice #: OR21Z627C83136 Case #~ OR21.z~27C8313g Provider COLE, DEBRA I Dace(s) of Service 01/17/08 to 01/17/08 Total Charges 181.00 Bill neview ReQuccions; .00 PliO Reduction .00 I ~d~tional ~ieco~nt ,00 Recommended~llowance 181.00 Bill Review Fee B.50 I PPO Fee .00 ~ Tax .00 Total ~rnount Paid B.SO Fee to be processed at month end, # of Lines; 2 ENTRY DATE" 02-07-2008 (07:54) SUBJECT~ 015 NURSE NOTES AU'!"HOR COVRNTRY ~ HA~EwWOOD( MO tm COMMENTS User Name;Jennifer Benedict User phone: (314)~13-95~9 DOX: 10/22/07 Notification Number: 2037261 Date of Review Determination; 12/21/07 Determi~~tion: request for ~ound Vac (~O days) I Dreasings (15); Canisters (10) is not certified. ~~cion~le fo~ Detormination; Patient name: Stephen Marano Date of birth: 6/3/1975 Reasor. ~or refQr~al; Is Wound Vac (30 days) 1 Dressings (15)i Canisters I (10) medically necessary Clin~eal summary; 4x3 c~ letc lateral foot wound. With exduate and mild erythemia. No drainage. Claimant was on LV and oral ancfbiocic~, Numbness I throughout the foot. No se~satio~ to the entire foot. I Dace of injury; 10/22/2007 I Diagnoses: 92B,20 CRUSHING INJURY OF FOOT ! i CONTINUED ON THE NEXT PAGE I I ! I I I 1 ( I i ! SEP/26/2012/WED 09:31 AM LAW OFFICE FAX No, 512 477 4470 P. 063/079 \ i I i CNQ21R.Ol. GALLAGHER BASSETT SERVICES, INC. 04Aug2009E'AGE 91 1 . PRI~T C~M NOT~S I CLAIM NUMBER 001627~037609~WC-Ol(OPEN CLAIMANT NAME: MORENO ~w,STEPHEN ACCIDENT OATS: 10-22-2007 02/29/06; howeve~l the doctor ~as called out O~ an emQrseney and the ~ooointment has been rescheduled to 03/19/0a. -::------RSTURN to WORK S~~TUS ---~------The claimant remains off work. A designated doctor's ~~am nas been requested to addres~ MMI/IR and return to work and the exam is scheduled for 03/~9/0B. \ --~------TOTAL INCURRED ------~ INCURRED N~T PAYMENTS REMAINING RESERVES ! INDEMNITY 11,497.00 5,190_65 6,306.15 MEDICAl.. 49,191.00 21,671..22 27,519.76 I RERASIt. 0.00 0.00 0.00 I g~PBNSE 20,G86.40 13,951.70 6,734.70 ! 'l'OTJU.: 81,374.40 40,813.77 40,560.1;i3 No ohanges recommended at this ~ime, ______~_~ N_W __ sua~~~tON/S£CO~O t~JURY fUND/L!TIG~TtON~--~-~--~---~----- subrogation: NO 2nd InjUry Fund: No Xn suit: ~o ~rteclaimant alleges the forklift he was driving malfunctioned, oausing ie eo run ove~ his lefe foot. However, examination of the fork11tt ~eve~led ther~ was no malfunction and there 1~ video footage of claimant drivin~ forklift at ~ fast spe!d while going around a COrner. ThE footage shows claimant stiokiog out his left foot while 90in9 a~OUn4 thQ corner______~~_w~__~ and th&n the injury ~_ occurred,StATUS/~~Secondor ~CTrONInjury_w__~ ~und not ap~11cable...__~ _ The claimant repo~teQ ~o Or. ~mitreBcu on OZ/~l/O$ chat he twisted his lett ankle going down the stairs tha wee~end pr10r to the ~ppointment and sought treatment at the ~ound Rock Hospital !~.Approval has been requested to a55i~n a field case manager co retrieve the medical records to address ~ossible intervening injury dispute. The claimant is scheduled to follow u~ with Dr. Dumitreecu on 03/05/08. The claimant was scneduled tor a designated doctor's e~am on 02/2~/oa; however, due to the clooto~ being called out for emergency su~ge~, the appointment haa been reacneduled to 0$/29/08. ~he claimant 19 schedUled to return to Dr. Billante on 03/21/0B. DOCUMENT CREATION DATE: 03·Ma~'200S NEXT REPORTING DATE; Ol·Jun~2008 CLAIM REPRESENTATIVE, SUPERVISOR: BLAKS, TERESJ\ HEREDIA. NICROLBA teresa blake®GBTPA.COM NICHO~EA H~~SDIA@GBTPA,COM SllG BISSONNET AtCacnments: No SOITS 364 BE~LAlRt, ~~ '?40~ (713) 346-9700 Prepared by; 19R~SA BLAKE ENTRY DATE 03~03-200S (1':22) SUBJECT! 001 FI~ NO~tS AUTHOR BLAKE/TERESA DSR completed and submitted via e-mail co: Suzie Roth ~ TMD EwMail: sroch®texasmgmt.com Miehele Maxwell - Captive Resourcee E~m~il: mma~wellocap~iveresourCe5_COm ENTRy' DATE 03-03-2008 (14:24)SUBJECT: 001 FILE NOTES I AUT~OR BLAKE,TERESA CONTINUED ON THE NEXT PAGE I I \ I, SEP/26/2012/WED 09:31 AM LAW nFFICE FAX No, 512 477 4470 p, 064/079 EXHIBIT "G" SEP/26/2012/WED 09:31 AM LAW OFFICE FAX No. 512 477 4470 P. 065/079 DC BK10090 PG2191 FIled In The Dlstrl~t Court of Travis County, Texa. . MAR 2 5 2010 AB Cause No. D-I-GN-09-002378 At /I: oq 1lJ.. Arnaliiodt/guu-MendoD, CIIIfc STEPHEN MORENO AND § IN mE DISTRICT COURT ALPHA MORENO § Plaintiff, § § v. § OF 'IRA VIS COUNTY. TEXAS ....-.'\ § Notice 8Wlt: 11'.31 klterlocutory ~ ZURICH AMERICAN INSURANCE § Dllp Partles:_. 1\1& CO~ANY,GALLAdHER § Dl$p code: CVDI CI.S ...... ;_~~~_ BASSEIT SERVICES, INC. § Retlactpp.; b,l A- AND THERESA BLAKE. § sX~ ;;;::.< Defendant. § 98th JUDICIAL ffl§'nuc~ - CleJk, _ ORDEB On this 4thh day of March. 2010. came on for bearing the Plaintit!'s Motion to Compe~ and after considering such Motion and hearina the argmnents of counsel and reviewing the pleadings. and it aPPearing to the Court that such motion has merit a:nd is GRANTED as follows. It is ORDERED as follows; 1. Defendant Zurich's objections and claims of privilege made in response to RFP Nos. 1,4; 7. 12, 13. 14 and 15 (claims file and notes) are OVERRULED and Defendant ZUrich is ORDERED to produce responsive documents through the date of the contested case hearing (January 20, 2009) in the underlying workers' compensation case at the time and place ordered below. 2. Defendant Zurillbts objections and claims of privilege made in res~ to RFP Nos. 2, 3 and 6 (manuals; guidelines for handling claims) are SUSTAINED as the discovery requests at issue ask for manuals actually used in the adjusting of Plaintiffs' underlying claim. IIU_lm IIIIIII~ 111111111111111111111I 1 001440032 eLM P. 066/079 SEP/26/2012/WED 09:31 AM LAW nFFICE FAX No. 512 477 4470 DC BK10090 PG2192 3. Defendant Zurich·s objections and claims of privilege as to the underwriting file relating to the workers' compensation policy (RFP No. 11) are OVERRULED to the extent that Defendant Zurich is ORDERED to produce the workers' compensation insuring agreement that applies to the Moreno claim. at the time and the place set forth below. 4. Defendant Zmich's objections and claims of privilege made in response to RFP Nos. 17 and 18 (attomeys' fees) are OVERRULED and Defendant Zurich is ORDERED to produce documents responsive at the time and place as set forth below. 5. Defendant Zurich's objections and olaims of privilege made in response to Plaintiff's RFP No. 21 (other workerst compensation bad.faith claims and lawsuits in Texas since January I, 2004) are OVERRULBD and Zurich is ORDnRED to produce responslve documents at the time and plac;e set forth below. 6. Defendant Gallagher llasiett Services, me.'s objections and claims of privilege relating to RFP Nos. I, 4, 7~ 12, 13t 14 and 15 (claims file and notes) are OVERRULED and Gallagher Bassett Services. Inc. is ORDERED to produce responsive documents through the date of the contested case: bearing (January 20, 2009) in the underlying workers' compensation case at the time and place set forth below. 7. Defendant Gallagher BasRtt Services, Ine.'s obje<;tions and claims of privilege relating to RFP Nos. 2s 3,6 and 20 (manuals;guidelines for handling claims). are OVERRULED and Gallagh« Bassett Services. lne. is ORDERED to produce responsive documents at the time and place set forth below, 8, Defendant Gallagher Bassett Services. Inc.'s objeotions and claims of privilege made in response to RFP Nos. 17 and 18 (attorneys' fees) are OVERRULEDand 2 FAX No. 512 477 4470 P. 067/079 SEP/26/2012/WED 09:32 AM LAW OffICE DC BK10090 PG2193 Gallagher Bassett Serviees, In'C:-i"sORDERED to produce respoll3ive documents at the time and place set forth below. 9. Defendant Gallagher Bassett Services, Int.'s objections and claims of privilege made in response to RFP No. 21 (otber workers' compensation bad-faith claims and lawsuits in Texas since l811Uary 1, 2004) ~ OVERRULED and Gallagher Bassett Services, Inc. is ORDERED to produce responsive documents at the time and pl~ set forth below. 10. IT IS FUTBER ORDERED that the Affidavit of Theresa Blake is stricken to the extent it contains legal opinions and is conclusory. 11. IT IS FUTHER ORDERED that Defendants' request for entry of a protective order is DENIED. The parties are encouraged to enter a Rule 11 Agreement using the Austin Division Federal Prote<;tive Oilier as a model should they desire a vehicle by which to maintain the confidentiality of any document ordered produced herein. These Defendants are ORDEREll to produce the responsive documents as set forth above no later than 5:00 p.m. on Monday. April I2l 2010 at 1609 Shoal Creek Blvd., Suite 100, Austin, Tens. IT IS SO ORDERED. SIGNED this £.5 day ofMarcht 2010. 3 P,068/079 SEP /26/20 12/WED 09: 32 AM LAW nFFlCE FAX No,512 477 4470 MA~-1l-2Ul0 'I'HU1U04 AM AYERSl POCQ BK10090 PG2194X NO. 8i73180672 PI 05 APPltOVID AS TO FORM LAW OFFICES OF lOEK. LONGLEY 1609 Sboel Creek Blvd., SUifa 100 Auatin~Texas 78101 rDJephone: (512) 417-4444 Pacsbn!Ie; (S 12) 471004470 ~rf~~TCIXa$BarNo.12S42000 MOOlUs LANDRBY. W BTHANLSHAW ToxasBarNa.18140480 lOBNP.COWAR.T Texas liar No.. 04919500 1609 Shoal en.Bhrd.. Suite 100 Auritiua Tass 78701 ToIopIHme: (512) 499 .••900 FacsiJ:nila: (512) 32N906 .' AnoRNBYS FOltPLAlN1'IFFs AYERS" AYBRS 4205 Gateway DrIve. SID 100 Co~1o, Texas 76034 Telephone; (817) 267-9009 Facsiau1e: (817) 318-0663 t ' Sue )jar No. 00793419 , ATl'ORNEYS FOR DBPBNDANTS 4 SEP/26/2012/WED 09:32 AM LAW OFFICE FAX No, 512 477 4470 p, 069/079 EXHIBIT "H" SEP/26/2012/WED 09:32 AM LAW nffICE FAX No,512 477 4470 p, 070/079 CAUSE NO. D-1-09-002378 STEPHEN MORENO AND § IN THE DISTRICT COURT ALPHA MORENO § s W. § s 9BTH JUDICIAL DISTRICT ZURICH AMERICAN INSURANCE § COMPANY, GALLAGHER BASSETT § SERVICES, INC., AND § TERESA BLAKE § TRAVIS COUNTY, ~~~S **************************************** ORAL AND VIDEOTAPED DEPOSITION OF TERESA BLAKE June 24, 2010 **************************************** OaAL AND VIDEOTAPED DEPOSITION OF TERESA BLAKE:, produced as ·awitness at the instanc.e of the Plaintiffs, and duly sworn, was taken in the above styled and numbered cause on the 24th day of June, 2010, from 9:05 a.m. to 12:24 p.m. ( before Jill Johnson, CSR in and for the State of Texas t reported by shorthand" at the offioes of Ayer·s & Ayers, 4205 Gateway Dri'lre, Suite 100, Colleyville, Ta'rrant County I Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. SEP/26/2012/WED 09:32 AM LAW (lFFICE FAX No, 512 477 4470 P. 071/079 110 Stephen Moreno, et al v. Teresa Blake zurich American Insurance Co., et al June 24, 201.0 1:13:1<1 1 product.. 1:13;L8 2 Q. Can you tell me if they1re your wo~ds? 1;13:20 3 A. No, r canTt tell you that. 1:1l12G 4 MR. LONGLEY; Okay. Do you want to take 1:13:48 5 another short break? 1:24:32 6 (Recess 11:13 to 11:22 a.m.) 1~24:32 7 (Exhibit 9 marked.) 1,24:M 8 Q. And Exhibit 9 starts with Page 1; correct? 1:24:45 9 A. Yes. l:z4-Ad 10 Q. bnd goes on through -- what's the last page 1:24:~ 11 number? 1::a1:5Z 12 A. 212. 1:24:$6 13 Q. 212. Okay. And this was what you brought 1:25:04 14 with you today with regard to your claim notes? l:l$:O6 15 A. Yes, sir. 1 l:25:06 16 Q. And that s what they're called. The way you 1:25:08 17 keep them, you keep them in this format on t.he computer 1:25:1:1 18 and they're called claim not.es. Ill;: 14 19 A. YeS. 1:15:14 20 Q. And ··this . shows . what: you have ...typed in to 1:25:18 21 designate certain events and payments and things like 1:25:20 22 that. 1:25:20 23 A. ~es. 1:25:22 24 Q. okay" And there I s more to it. It's just that 1:35:24 25 we donlt have the rest of it here today -- WRIGHT WATSON & ASSOCIATES (SOO) 375·436~ 3307 Nor~hland Or" Bto. 1a5 Aumtin, ~x ~B73l~4946 (512) 414-4363 d0fi69e68-841 b-421d-9b+I-76999120l1307 SEP/26/2012/WED 09:32 AM LAW OFFICE FAX No, 512 477 4470 r 072/079 155 Stephen Moreno, et al v. Teresa Blake Zurich American Insurance CO'I et al June 24, 2010 1 CAUSE NO. D-l-09-0Q3378 2 STEPHEN MORENO AND s IN THE DISTRICT COURT ALPHA MO:RE~O s 3 § VS. s 4 s 98TH JUDICIAL DISTRICT ZURICH AMERICAN INSURANCE s 5- COMPANYj GALLAGHER BASSETT s SERVICES, INC. I AND s 6 TERESA BLAKE: s TRAVIS COUNTY, TEXAS 7 REPOR~BR'8 CERTIFICATION 8 DEPOSITIOW OF TE~ES~ BLAKE 9 June 24, 2010 10 I, Jill Johnson, Certified shorthand Reporter 11 in and for the State o·f Texas/ hereby certify t.o the 12 following; 13 That the witness, TERESA BLAKE, was duly sworn 14 by the officer and that the transcript of the oral 15 deposition is a true record of the testimony given hy 16 the wit.ness; 17 That the deposition transcript was submitted 18 on ~_~ __ ~ __ to the wi tnesa or to the attorney f.or 19' th@ witness for examination I signature and return to me 20 by 21 That the amount of time used by each party at 22 the deposition is as follows; 23 Mr. Joe K. Longley, 2~55; Ms. Julie B. Tebbets, 0:00. 24 2S That pursuant to infor.mation given to the WRIGHT WATSON & ASSOCIATES (90·0) l75R4303 3307 NO:l:'thl_nd Dr., See. J.85 .AUl!ltin, TX 78'73l~4946 (512} 474.4363 d0669e68-84I b- 156 Stephen Moreno, et al v. Teresa Blake Zurich American Insurance Co., et al June 24, 2010 1 deposition officer at the time said testimony was taken, 2 the following includes counsel for all parties of 3 record: 4 For the Plaintiff: Mr. Joe K. Longley 5 P.O. Box 12667 Capitol Station 6 Austin, Texas 78711 800-792-4444 512-477-4470 (fax) 7 For the Defendants: 8 Ms. JUlie B. Tebbeta Ayers &: Ayers 9 4205 GatewayDrive, Suite 100 Colleyville/ Texas 76034 10 817-267-9009 817-318-0663 (fax) 11 I further certify that I am neither counsel 12 for, related to, nor employed by any of the part.ies in 13 the action in which this proceeding was taken, and 14 further that I am not financially or otherwise 15 interested in the outcome of the action. 16 Further cert.ification requirements pursuant to 17 Rule 203 of TRCP will be certified to after they have 18 occurred. 19 Certified to by me this day of 20 Dlgltafiy &kl'ned by Jill Johnson Date: 2010,07.07 12:50:19 -07:00 Reason: I am the author of this dOCl.lment 21 location; planol rx JILL JOHNSON, Texas CSR 259 ~ 22 Expiration Date: 12/31/10 WRIGHT WATSON & ASSOCIATES 23 Firm Registration,NO. 225 Expiration Date: 12/31/11 24 3307 Northland Drive, Suite 185 Austin, Texas 78731 25 (512) 474-4363 WRIGHT WATSON & ASSOCIATES (BOO) 37S~4363 3301 Northlaud P~" She. 185 AUBt~n, ~ 78731~4946 (512) 474w4363 d0669e68-841 b-424d-9b41.76999 120a307 SEP/26/2012/WED 09:33 AM LAW OFFICE FAX No.512 477 4470 P.074/079 EXHIBIT "I" SEP/26/2012/WED 09:33 AM LAW OFFICE FAX No, 512 477 4470 p, 075/079 CAUSE NO. 2010~30365 LEYDI ME~JIVAR, § IN THE DISTRICT COURT OF Plaintiff, § s VB § 55TH UUDlClAL DISTRICT s INDEMNITY INSURANCE s COMP~~Y OF NORTH § AMERICA, GALLAGHER s BASSETT SERvtCBS, INC. § AND TERESA BLAKE, § Defendants. § HA:RRIS COUNTY I TEXAS ORAL AND VIDEOTAPED DEPOSITION OF TERESA CAROL BLAKE 3/24/11 ------~------~------~ ORAL AND VIDEOTAPED DEPOSITION OF TERESA CAROL BLAKg, produced as a witness at the instance of the PLAINTIFF, and duly sworn, was taken in the above-styled and numbered cause on the 24th day of March, 2011, from 11:14 a.m. to 4;04 p.m., before TINA TERRELL BURNEY, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Ayers & Ayers I 4205 Gateway Drivel Suite 100, Colleyvillel Texas 76034, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. SEP/26/2012IWED 09:33 AM LAW OFFICE FAX No,512 477 4470 p, 076/079 17 Leydi Menjivar v. Teresa Carol Blake lndemnity Insuranoe Company, et al March 24, 2011 1 A. We contact the employer, the employee, and if 2 they sought medical treatment, we would contact the 3 medical provider to get the medical information. 4 Q. Okay. And you would do that in every case? 5 A. Yes. 6 Q. Okay. Was there any other routine that you 7 had after you had done the three-point contact? 8 A. It all depends on the results of that initial 9 contact. 10 Q. Okay. You know -- from having worked with all 11 of these companies before, you know what a reserve is, 12 correct? 13 A. I do. 14 Q. Is reserving a part of the adjuster's duties? 15 A. y.es. 16 Q. And has that been SO regardless of which one 17 of these firms you've worked with, they all have 18 instructed you and trained you with regard to reserving? 19 A. Yes. 20 Q. And do you know the purpose for that? 21 A. Yes. 22 Q. What is the purpose of a reserve? 23 A. It's to give an. evaluation of what we, the 24 claims professional, projects the cost of the claim.is 25 to help the employer budget and know how much money WRIGHT WATSON & ASSOCIATES (SOO) 375-4~ij3 3307 No~thland D~., ate. 185 Austin, TX 78731-4946 (512) 474-4363 8fccdl gS..g~6:L.40te.8~3S·73346bf248<14 SEP/26/2012/WED 09:33 AM LAW nFFICE FAX No. 512 477 4470 P. 077/079 18 Leydi Menjivar v. Teresa Carol Blake Indemnity !nsuranoe CompanYt et al March 24, 2011 1 theY're going to be paying out on the claim based on our 2 evaluation. 3 Q. Right. It's a snapshot in time basically? 4 A. Right. 5 Q. And it's a snapshot of what you think the 6 claim is ultimately going to cost in terms of different 7 types of payments; is that right? 8 A. Yes, yes. 9 Q, And what kindS of payments would go into the 10 discrete types of reserves you would set? 11 A. We would have -- typically every employer has 12 an indemnity where you payout benefits, and that all 13 falls under one category, medical, and then you had 14 expense . 15 .Q. Ok~y. So. three basic categories( 16 A.. Correct. 17 Q. Indemnity, which so the jury will understand 18 what indemnity means, when you think of indemnity, What 19 kind of benefits are those? 20 A. Those are payment for lost wages. 21 Q, So itfa like income replaoement benefits? 22 A. Yes. 23 Q. And are there subcategories within that term 24 of lost wages? 2S A. Yes, sir. Yes. 'WRIGHT WATSON &: ASSOCIATES (800) 375-436l 3307 Northl~nd Dr., St•• 1SS Austin, TX 78731~4946 (512) 474~4J63 8foodl SS·8362-4Ofc-8235· 73346bt248d'l SEP/26/201VWED 09:33 AM LAW OFFICE FAX No,512 477 4470 p, 078/079 195 Leydi Menjivar v. Teresa carol Blake rudemnity Insurance Company, et al Maroh 24, 2011 1 CAUSE NO. 2010-30365 2 LEYDI MENJIVAR, § IN THE DISTRICT COURT OF Plaintiff, § 3 § VS § 55TH JUDICIAL DISTRICT 4 § INDEMNITY INSURANCE § 5 COMPANY OF NORTH § AMERICA, GALLAGHER s 6 BASSETT SERVICES, INC. § AND TERESA BLAKE I s 7 Defendants. § HARRIS COUNTY, TEXAS 8 9 REPO~~~Rts CERTIFICATION 10 DEPOSITION OF TERESA CAROL BLAKE 11 3/24/11 12 13 If TINA TERRELL BURNEYt Certified Shorthand Reporter in and for the state of Texas( hereby certify 14 to the following: 15 That the witness, TERESA CAROL BLAKE, was duly sworn by the of'fieer and that the transcript of the oral 16 deposition is a true record of the testimony given by the witness; 17 That the deposition transcript was submitted 18 on to the witness or to the attorney for the witness for examination, signature and return to 19 me by _ 20 That, the amount of time used by each party at the deposition is as follows: 21 Mr. Joe K. Longley: 3 Hours - 35 Minutes 22 That pursuant to information given to the 23 deposition officer at the time said testimony was taken, the following includes counsel for all parties of 24 record: 25 Mr. Joe K. Longley, Attorney for the Plaintiff WRIGHT WATSON & ASSOCIATES (aDO)37S·~30S 3307 Ro~thl&nd n~., Bt~. ~a5 AU8ti~,~x 78731"'9~6 (S~~)'74-4363 gt'ccd1&5-a3(jl-40fo·823S-7334~l248d4 SEP/26/2012/WED 09:34 AM LAW OFFICE FAX No, 512 477 4470 P. 079/079 196 Leydi Menjivar v. Teresa Carol Blake Indemnity Insuranoe Company, et al March 24, 201.:1. 1 Ms. Julie Tebbets I Atto.rney for the Defendant 2 I further certify that I am neither coun~el fori related tOI nor employed by any of the parties or 3 attorneys in the action in which this proceeding was taken, and further that r am not financially or 4 otherwise interested in the outcome of the action. S Further certification requirements pursuant to Rule 203 of TRCP will be certified to after they have 6 occurred. 7 Certified to by me this ______day of April, .2011. Digitally signed by TIna Terrell BlJmey 8 Pate: 2011.04.04 09:12;10 -07:00 Reason: I am the author of this document 9 location: Coppell, TX 10 TINA TERRELL BURNEY Texas CSR No. 2908 11 Expiration Da,te; 12/31/12 WRIGHT WATSON & ASSOCIATES, L.L.C. 12 3307 Northland DriVe, Suite l85 Austin, Texas 78731 13 800.375.4363 Fax S12.474.BB02 Firm Registration No. 225 14 15 16 17 18 19 20 21 22 23 24 25 WRIGHT WA.'l$ON & ASSOCIATES (800) 375y4363 3307 Northland Dr., Sta. 185 Aust~n, TX 78731~4946 (~12) 474-(363 8f~dl &~-8311:4-40f0.3235-73346btl48d4 Appendix 3 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUfZ § § § vs. § OF HAYS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 274th JUDICIAL DISTRICT DEFENDANTS' RESPONSE TO PLAINTIFFS' FIRST AMENDED SPECIAL EXCEPTIONS; MOTION FOR PROTECTIVE ORDER AND MOTION TO COMPEL DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants in the above-styled and numbered cause of action, and file this their Response to Plaintiffs' First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery', and for same would show unto the Court as follows: I. Special Exceptions This is a lawsuit filed by the Plaintiffs against the Defendants seeking extra- contractual damages arising out of the handling of Plaintiff Joseph Ruiz' workers' compensation claim. The Plaintiffs filed their Original Petition on or about March 9, 2012, asserting causes of action for the alleged conduct of Defendants related to Plaintiff Joseph DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 1 Ruiz's workers' compensation claim and alleged misrepresentations by Defendants. In Defendants First Amended Answer, they assert the affirmative defenses that Plaintiffs acted with unclean hands, Plaintiffs failed to mitigate their damages, Plaintiffs' conduct constitutes comparative bad faith, that Defendants relied on advice of medical professionals, and that Plaintiff Joseph Ruiz failed to exhaust his administrative remedies. Specifically, Defendants pled in paragraph 5 that "Defendants plead and invoke the doctrine of unclean hands. Plaintiffs' wrongful conduct has severely injured Defendants; therefore, Plaintiffs are not entitled to compensatory damages or equitable relief." Defendants pled in paragraph 7 that "Defendants allege the Plaintiffs have failed to mitigate their damages, if any, which they are claiming as a result of the incident in question." Defendants further pled in paragraph 8 that "Defendants seek a finding by the jury of comparative fault and bad faith on the part of the Plaintiffs. Defendants assert Plaintiffs' negligence caused their damages, if any." In paragraph 9 of Defendants' First Amended Answer, they pled "Defendants assert reasonable reliance on the advice of medical professionals and asserts such reliance was reasonable." Paragraph 14 of Defendants' First Amended Answer pled "Defendants object to venue and jurisdiction. Plaintiff, Joseph Ruiz, failed to exhaust his administrative remedies. As such, this Court lacks jurisdiction over this matter." Thus, Defendants expressly requested that the issues be submitted to the jury at the time of trial. Plaintiffs have now filed Special Exceptions to the Defendants' First Amended Answer, excepting to these portions of the Defendants' First Amended Answer and requesting pleading of the factual basis for such allegations. Defendants would show that DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 2 these matters are defenses which they have a right to plead in this cause of action. In addition, Plaintiffs' special exceptions are an improper method to request the factual bases for these issues, which needlessly requires the Court to consider issues which Plaintiff could request through discovery. Requesting the factual basis for a pleading is a matter for discovery, not special exceptions, and as such, special exceptions are not a proper method to challenge the Defendants' First Amended Answer. Accordingly, the Plaintiffs' Special Exceptions should be stricken or denied. Defendants are entitled, and in some cases are required, to plead all affirmative defenses. Bradt v. West, 892 S.W.2d 56, 65 (Tex.App.-Houston [1st Dist.] 1994, writ denied); see TEX. R. CIV. P. 94 (listing required affirmative defenses). A pleading is only required to give fair and adequate notice to the adversary of the nature of the cause of action asserted against him. Bradt, 892 S.W.2d at 75. Rule 84 allows a defendant to plead as many matters, whether in law or fact, which may be pertinent to the cause. TEX. R. CIV. P. 84 (emphasis added). The law requires that "one who comes to the court seeking equity must come with clean hands." In re EGL Eagle Global Logistics, L.P., 89 S.W.3d 761, 766 (Tex.App.- Houston [1st. Dist.] 2002, pet. denied). The mitigation of damages doctrine requires an injured party to exercise reasonable care to minimize its damages if damages can be avoided with only slight expense and reasonable effort. Young v. Thota, 271 S.W.3d 822, 829 (Tex.App.-Fort Worth 2008, pet. filed), citing Cotton v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex.App.-Fort Worth 2006, pet. denied). For example, the failure to follow competent medical advice warrants a submission on failure to mitigate damages. Id. DEFENDANTS'RESPONSETOPLAINTIFF'SSPECIALEXCEPTIONS,PROTECTIVEORDERAND MOTIONTO COMPEL PAGE 3 at 829-30, citing Moulton v. Alamo Ambulance Serv .. Inc., 414 S.W.2d 444, 449 (Tex. 1967). Reliance on expert medical opinions establishes the reasonableness of an insurer's actions. State Farm L10yds v. Nicolau, 951 S.W.2d 444, 449 (Tex. 1997). Finally, The Texas Supreme Court has held the DWC is vested with exclusive jurisdiction to determine an injured employee's entitlement to medical benefits. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009)(orig. proceeding)(per curiam). Defendants' First Amended Answer pleading asserts Plaintiffs acted with unclean hands, Plaintiffs failed to mitigate their damages, Plaintiffs' conduct constitutes comparative bad faith, that Defendants relied on advice of medical professionals, and that Plaintiff Joseph Ruiz failed to exhaust his ad ministrative remedies, are based in law as required by Rule 84 and are sufficient pleadings in the form of an Answer. Defendants' First Amended Answer is not defective in form or in substance, therefore special exceptions are not warranted. Plaintiffs have asserted no legal support for their request for further facts to be pled in Defendants' First Amended Answer, and Plaintiffs have failed to comply fully with Rule 91 requiring specificity in special exceptions. II. Motion for Protective Order Defendants agree that a Protective Order should be entered in the above- referenced cause. However, Defendants oppose entry of Plaintiffs' proposed protective order. Instead, Defendants urge the Court to enterthe Protective Order attached hereto as Exhibit A. DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 4 III. Motion to Compel Plaintiffs have filed a Motion to Compel with regard to Defendants' discovery objections and asserted privileges. In summary, the discovery over which Plaintiffs seek judicial relief generally involve Defendants' workers' compensation claim notes and claim file, claim reserves, policies regarding claims handling, a copy of insurance policy issued to Plaintiff Joseph Ruiz's employer, Defendants' attorney fees, copies of other lawsuits or information about other lawsuits, and documents between Defendants and their attorneys. Plaintiffs are also seeking to invalidate the attorney-client privilege. Defendants have lodged valid objections to said requests. Notwithstanding said objections, Defendants have produced documents. Defendants would show that their objections were warranted given that such requests are overly broad, burdensome,' not limited to the scope of this litigation. Furthermore, the requests seek privileged and/or proprietary information. In that Plaintiffs' requests are broad enough to invade such privileged and protected documents, Defendants' assertion of said privileges and objections was warranted. A. Date of Anticipation of Litigation Texas caselaw clearly holds that Defendants can assert a privilege over documentation created after anticipation of litigation. National Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993); In re Certain Underwriters of Lloyds London, 294 S.W.3D 891 (Tex. App. - Beaumont 2009), mandamus denied (Tex. 201 O)(holding notes taken by employee of adjusting company for insurer was not discoverable as made in anticipation of litigation). As the Supreme Court has held, "Common sense dictates that a party may DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 5 reasonably anticipate suit being filed, and conduct an investigation to prepare for the expected litigation, before the plaintiff manifests an intent to sue." Brotherton, 851 S.W.2d at 204. The date of denial may be the date of which litigation can be anticipated. See In re Texas Farmers Ins. Exchange, 990 S.W.2d 337 (Tex. App.-Texarkana 1999, orig. proceeding). In Texas Farmers, the Court held that adjuster's files were not discoverable after a denial had been sent to Claimant as litigation had been anticipated. See lQ. The claim file also contains attorney client communications, attorney work product, and material which have been obtained in anticipation of this litigation. See Exhibit B. In the case at bar, the evidence establishes that litigation was first anticipated on April 8, 2011, when the decision was made to deny Mr. Ruiz's claim. See Exhibit B. At that point, the Defendants anticipated that the Plaintiffs may file a bad faith lawsuit. See Exhibit B. The denial was filed on April 12, 2011. See Exhibit B. Defendants further anticipated litigation as a result of the administrative hearings scheduled over Plaintiff Joseph Ruiz's workers' compensation claim. See Exhibit B. Defendants received notice of the first administrative hearing on May 18, 2011 for a hearing set on June 8, 2011. See Exhibit B. Defendants anticipated litigation in that Plaintiff Joseph Ruiz had retained an attorney by the June 8, 2011 hearing. See Exhibit B. The Contested Case Hearing on compensability of the claim was held on October 24, 2011. See Exhibit B. This furthered the Defendants' belief that Plaintiffs may file a bad faith lawsuit. See Exhibit B. Plaintiffs filed their lawsuit on March 9, 2012. When reviewing these communications objectively, the Defendants were clearly put DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 6 on notice of the threat of litigation arising out of the claims handling of Plaintiff Joseph Ruiz's workers' compensation claim. Accordingly, Defendants should not be compelled to produce any documents, including claim notes, reserve information or other documents from the claim file following the date litigation was anticipated. B. Plaintiffs' Requests are Objectionable Many of Plaintiffs' requests have no relevance to the issues to be determined in the instant suit. Generally, the scope of discovery includes any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought appears "reasonably calculated to lead to the discovery of admissible evidence." TEX.R. CIV. P. 192.3(a); see also In re CSX Coro., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). However, this broad grant "is limited by the legitimate interests of the opposing party to avoid overly broad requests, harassment, or disclosure of privileged information." Axelson, Inc. v. Mcllhany, 798 S.W.2d 550,553 (Tex. 1990). Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. In re Exmark Mfg. Co., Inc., 299 S.W.3d 519, 525-26 (Tex. App.-Corpus Christi 2009, orig. proceeding); TEX. R. EVID. 401. Generally, the scope of discovery is within the trial court's discretion, but "the trial court must make an effort to impose reasonable discovery limits." In re CSX Corp., 124 S.W.3d at 152. Thus, because discovery may not be used as a fishing expedition, discovery requests must be reasonably tailored to include only matters relevant to the case . .!.!t Discovery requests must be limited by time, place, and subject matter. In re DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 7 Xeller, 6 S.W.3d 618, 626 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding). "Fishing" for evidence is impermissible. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). A party embarks on a "fishing expedition" when it submits discovery requests that are "not narrowly tailored and are overly broad." See In re Sears, Roebuck & Co., 146 S.W.3d 328, 333 (Tex. App.-Beaumont 2004, orig. proceeding). Additionally, the Plaintiffs failed to specify the documents sought from Defendant's claim file which they contend have not been previously produced, nor do the Plaintiffs indicate the relevance of the documents that are sought from the claim file. The claim file contains a vast amount of information and many different types of documents. Each and every document in the claim file is not relevant to the issues which make up the basis of Plaintiffs' causes of action, and some topic areas are simply not discoverable, such as litigation management and reporting. Furthermore, documents generated after the date litigation was anticipated are not subject to discovery. Also, reserves have no relevance to the denial of the claim which forms the basis of this suit. See Exhibit B. Multiple courts have ruled that production of information about setting of reserves is improper. In re American Home Assurance Co., 88 S.W.3d 370 (Tex. App. - Texarkana 2002, orig. proceeding); Independent Petrochemical Corp. v. Aetna Cas. & Sur. Co., 117 F.R.D. 283 (D.D.C. 1986). The cases cited by Plaintiffs are unpublished and not relevant. For example, Swicegood v. Medical Protective Co., 2004 WL 1698285 (N.D. Tex. 2004) involved a question of whether a third party's settlement offer should have been accepted in a Stower's lawsuit. Business Staffing, Inc. v. Jackson Hot Oil Service, 2012 WL 1864345 (Tex. App. - EI Paso May 23,2012) did not contain any discussion on DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 8 the appropriateness of discovery of reserves. In fact, Business Staffing did not even involve a licensed insurance carrier, but rather was a suit over misrepresentations that workers' compensation insurance would be purchased when, in fact, such insurance was never placed. In the context of a workers' compensation claim, an insurer cannot refuse to pay income or medical benefits simply because a reserve is too low. Likewise, an injured worker is not entitled to payment of all money in reserves simply because that amount has been reserved. All workers' compensation benefits are paid pursuant to the Texas Workers' Compensation Act, and that figure could fluctuate throughout the course of a claim. Accordingly, the request for the entire file is overbroad. Regardless, Defendants have produced the claim file subject to the objections and privileges asserted in their discovery responses. Plaintiffs' requests seek a copy of the insurance policy issued to Plaintiff Joseph Ruiz's employer. However, there is no allegation of coverage relative to this claim, therefore, copies of the actual insurance policy have no relevance to this suit. Furthermore, the handling adjuster did not have copies of the actual policy, and that those documents did not impact the claims handling. See Exhibit B. Additionally, Mr. Ruiz was not a "party" to the contract in that he did not have all of the obligations imposed on an insured under the contract. For example, Mr. Ruiz did not have an obligation to pay the premium under the policy. As payment of his workers' compensation claim is governed by the Texas Workers' Compensation Act, the actual insurance policy has no relevance to this matter. Any information concerning premiums would be considered proprietary information and unrelated to the facts of this lawsuit. DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 9 Plaintiffs further seek copies of other lawsuits. In addition to the relevance of such requests, the requests are overbroad and would impose an undue burden and expense on the Defendants. See Exhibit B. Because of the very nature of a workers' compensation claim, each claim is evaluated separately. Everest National Insurance Company uses third party administrators and both corporate defendants adjust claims for all types of insurance policies nationwide. See Exhibit B. Accordingly, the only possible relevant litigation would be limited to lawsuits filed against the adjuster who handled this specific claim and which did not involve the causes of action which are now invalidated by the Texas Supreme Court. c. Policies Plaintiffs further make broad requests for "manuals, guidelines, policies, procedures, rules, regulations or instructions" relative to the handling of claims, and a request for the insurance policy. Based on the ruling in Texas Mut. Ins. Co. v. Ruttiger, Defendants can no longer be held liable under the Insurance Code relative to such policies and procedures as tho"""""''''''t-''V"IIIV'''''''V C:"nrolYlo Court~1\..4lv""'l.llr' rlor! that1..' insurance I I \JV carriers I' I are I qovemedV I U""11.1 bv the detailedU quidelinesU III and requirements set forth in the Texas Workers' Compensation Act. No. 08-0751,2012 WL 2361697 at *12-13 (Tex. June 22,2012). Additionally, the requests for manuals as worded clearly constitute a fishing expedition and seek documents which have no relevance to the case at bar. The requests are not limited to even Texas workers' compensation claims and constitute proprietary information. See Exhibit B. Furthermore, production of Everest National Insurance Company policies has no relevance in that they were not provided to the other Defendants, DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 10 and the other Defendants conducted the claims handling of the claim which forms the basis of this suit. See Exhibit B. Therefore, Defendants objections to these discovery requests should further be upheld. To the extent, the Court rules such policies should be produced, said production should be made pursuant to a Protective Order. D. Plaintiffs' Requests are Broad Enough to be Protected by Attorney Privileges The requests made by Plaintiffs are broad enough to be protected by the attorney client privilege, attorney work product privilege, and/or constitute material which has been created or obtained in anticipation of litigation. Furthermore, Plaintiffs specifically request production of contracts, agreements, and bills between Defendants and their attorneys. There is no basis to warrant production of these clearly privileged communications. The attorney work privilege protects two related but different concepts. First, the privilege protects the attorney's thought process, which includes strategy decisions and issue formulation, and notes or writings evincing those mental processes. Second, the privilege protects the mechanical compilation of information to the extent such compilation reveals the attorney's thought processes. See Nan Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458, 461 (Tex. 1993) (noting that an attorney's litigation file goes to the heart of the work product exemption and citing federal authority holding that "an attorney's selection and ordering of documents in anticipation of litigation is protected work product even where the individual documents are not privileged);Occidental Chemical Corp. v. Banales, 907 S.W.2d 488 (Tex. 1995). The work product privilege in Texas is of a continuing duration. A trial court can abuse its discretion in ordering discovery of work product prepared for previous litigation. Owens Corning Fiberglas Corporation v. Caldwell, 818 S.W.2d 749, DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 11 751-52 (Tex. 1991). Further, under Texas Rule of Evidence 503(b)(3), a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services by him or his representative or his lawyer or a representative of the lawyer to a lawyer, or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein. Parties may assert the privilege when they are (1) parties in the same lawsuit, see Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965); (2) parties who are about to be in the same lawsuit, making their communications in anticipation of litigation, see Miller v. U.S. Dept. Of Energy, 499 F.Supp. 767, 771 (D. Or. 1980); or (3) parties with common defenses against plaintiff, see Roberts v. Carrier COrD., 107 F.R.D. 678, 687-88 (N.D. Ind. 1985). Ryals, et. al. v. Canales, 767 S.W.2d 226, 228 (Tex. App.- Dallas 1989). The attorney client privilege extends to communications involving both an insurer and its insured. See, Metroflight, Inc. v Argonaut Ins. Co., 403 F. Supp. 1195, 1197 (N.D.Tex. 1975). The claim file contains attorney client communications, attorney work product, and material which has been obtained in anticipation of this litigation. (See Exhibit B). The date of denial may be the date of which litigation can be anticipated. See In re Texas Farmers Ins. Exchange, 990 S.W.2d 337 (Tex. App.- Texarkana 1999). In Texas Farmers, the Court held that adjuster's files were not discoverable after a denial had been sent to Claimant as litigation had been anticipated. See.!Q. The In re Certain Undwriters of Lloyds London case expanded this to hold that litigation can be anticipated even before a formal DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL PAGE 12 denial is filed. 294 S.W.3d at 899-900. Clearly, as outlined herein and in the attached evidence, the adjuster's file is privileged as of the date litigation was anticipated. Defendants have submitted Privilege Logs. Plaintiffs have shown no justification for disregarding the attorney-client and attorney work product privileges. As such, Defendants assertion of these privileges should be sustained. Even though Plaintiff served a Request for Privilege Logs before the discovery responses were even due, Defendants have complied with the requirements of Texas Rule of Civil Procedure 193.3(b) to the letter. Said Rule provides in pertinent part as follows: Within 15 days of service of that request, the withholding party must serve a response that: (1) Describes the information or materials withheld that, without revealing the privileged information itself or othervvise waiving the privilege, enables other parties to assess the applicability of the privilege, and (2) asserts a specific privilege for each item or group of items withheld. TEX. R. CIV. P. 193.3(b). Defendants' Privilege Logs listed each individual discovery request over which privileged communications were withheld and defined which privilege was being asserted as to each specific discovery request. Defendants' Privilege Logs also attached two categories of documents withheld. Exhibit A listed all claim notes which were withheld. The withheld claim notes were identified by the date and time of the entry, the author, and the subject matter of the entry. Exhibit B is titled "Attorney Client Privilege and Attorney Work Product Privilege" and lists the date and time of the entry, the author, and the subject matter of the entry for claim notes withheld based on those privileges as well the dates and parties to all communications between Defendants and counsel. The Affidavit of Florence DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL - PAGE 13 Baker confirms the identity of defense counsel as well as the fact that these documents reflect communications with counsel and the rendition of legal services. See Exhibit B. Ms. Baker confirms that Defendants considered such communications to be privileged under the attorney-client and attorney work-product privileges, and confirms the anticipated date of litigation. See Exhibit 8. Additionally, a second affidavit of Ms. Baker and an affidavit of the employer confirm that the employer did not have the ability to access Gallagher claim notes, therefore, there has been no dissemination of attorney client communications contained in the claim notes. See Exhibits C and D. The information provided on the Privilege Logs gives detailed information about the privilege asserted, the subject matter ofthe information withheld, the author and the date of the communication. This is precisely what is required by Rule 193.3(b). Plaintiffs'requests for bates stamping and recipients is not required by Rule 193.3(b). In fact, one of the cases cited by Plaintiffs actually held that a privilege log would be sufficient as long as it contained the author and date created. In re Maher 143 S.W.3d 907,914 (Tex. App. - Fort VVorth 2004, orig. proceeding). Plaintiffs also cite to In re Monsanto Co. for the assertion that documents are required to be identified by "bates number"; however, the decision does not state that bates numbers are required but rather only noted that the party had identified the document by bates number. 998 S.W.2d 917, 925 (Tex. App. - Waco 1999, orig. proceeding). Plaintiffs assert that Defendants should be ordered to prepare a Privilege Log in a different form because this counsel provided a Supplemental Privilege Log in a separate lawsuit in a different form. Plaintiffs' counsel failed to advise the Court that the DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL- PAGE 14 Supplemental Privilege Log attached as Exhibit E to Plaintiffs' First Amended Special Exceptions, Motion for Protective Order, and Motion to Compel Discovery was in response to privileged documents being produced by an employerto a workers' compensation policy in response to a subpoena issued by Plaintiffs' counsel. The Supplemental Privilege Log was created as Plaintiffs' counsel kept asserting that he could not determine which documents were involved in the "snap-back" proceedings held before the trial court, therefore, he was refusing to comply with the "snap-back" requirement. The trial court ruled in that matter that the communications between the workers' compensation administrative attorney for the insurance carrier and the employer are privileged communications covered by the attorney-client privilege. Plaintiffs' request for additional information concerning the attorney-client privileged documents is not supported by the law. In fact, Rule 193.3(b) specifically states that a party is only required to describe the withheld material "without revealing the privileged information itself or otherwise waiving the privilege". TEX. R. CIV. P. 193.3(b). Plaintiffs cite no authority requiring more detailed information of attorney-client privileged documents other than the date and parties to the correspondence. Revelation of any more information concerning such attorney-client communications would violate the privilege and render the privilege moot. The attorney-client privilege is one of the most sacrosanct of all privileges. Plaintiffs are essentially seeking to compel the production of attorney-client communications made between the Defendants and their attorney who rendered legal advice and services connected to the claims handling of Plaintiff Joseph Ruiz's workers' compensation claim. DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL - PAGE 15 This legal advice, services and communications was rendered forthe purpose of assisting Defendants with the claims handling of this claim. Such communications are protected by Texas Rule of Evidence 503(b), which provides: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. Ordering production of such clearly confidential communications would have a chilling effect on all legal communications. That would deprive clients of the ability to have free, open and honest communication with their attorneys forfearthat the communications and advice would be later divulged. Attorney privileges are of continuing duration and extend beyond the conclusion ofa matter. Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749 (Tex. 1991). The Court held that "any party which is a repeat litigant clearly must be allowed to develop an overall legal strategy for all cases in which it is involved." Id. at 751. As applied to the case at bar, the Plaintiffs contend that the administrative attorney's communications and work product are not privileged as they also include the Plaintiff Joseph Ruiz's employer, S&K Technologies. Yet, Plaintiffs do not have any basis to assert such a contention, and the evidence shows that S&K did not have access to Defendants' file. See Exhibits C and D. S&K Technologies has also asserted that they believed their own communications with the workers' compensation administrative attorney were privileged communications. See Exhibit E, Affidavit of Adele Vincent. The Defendants maintain that the attorney client DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL - PAGE 16 privilege applies equally to both the administrative legal advice as well as the advice and communications rendered in bad faith lawsuit in that both sets of litigation involve the Defendants' claims handling of Plaintiff Joseph Ruiz's workers' compensation claim. Regardless, the administrative legal advice is still protected in the extra-contractual lawsuit under the Supreme Court's "overall legal strategy" theory set forth in Caldwell. Just because the Defendants procured legal advice and counsel to represent their interests at the administrative level does not mean that the attorney-client communications are discoverable as part of the routine handling and investigation of Plaintiff Joseph Ruiz's claim. Furthermore, the Texas Workers' Compensation Act specifically allows an employer to be involved in the investigation and evaluation of a workers' compensation claim . involving its employees. TEX. LAB. CODE §415.002. Furthermore, in order to defend a workers' compensation claim, the insurer and its attorneys must be able to communicate with the insured regarding the facts, investigation and evaluation of the claim. Such communications would be protected by an attorney's work product privilege. An expectation of privacy exists in such confidential communications, and the ability to freely communicate regarding such claims is critical. See Exhibit Band E. As such, both Everest National Insurance Company and its third party administrator, Gallagher, and the handling adjuster, Cheryl Verge, have a common legal interest. The Fourteenth Court of Appeals has held that a privileged communication remains privileged even when shared in confidence to assist the parties in a common cause. In re Lexington Ins. Co., 14-03-01236-CV, 2004 WL 210576 (Tex. App. - Houston [14th Dist.] DEFENDANTS'RESPONSETOPLAINTIFF'SSPECIALEXCEPTIONS,PROTECTIVEORDERAND MOTIONTOCOMPEL- PAGE 17 February 2,2004, no pet.); see a/so, In re Dalco, 186 S.W.3d 660 (Tex. App. - Beaumont 2006, orig. proceeding)(common interest privilege protects privileged communications disclosed through the course of legal services). Clearly, a workers' compensation insurer and its insured share a common cause in the handling of the insured's employees workers' compensation claims. Yet, in the case at bar, the attorney-client communications were not shared with the employer, therefore, there has been no dissemination of the attorney-client communications between the administrative attorney and Everest, Gallagher and/or Verge. Defendants' Privilege Logs are sufficient and preserve the attorney-client privilege. Plaintiffs have not shown any justification to invalidate the Defendants' attorney-client privilege. Because Defendants have complied with the requirements of Texas Rule of Civil Procedure 193.3(b), Plaintiffs' First Amended Motion to Compel Discovery should be denied. WHEREFORE, PREMISES CONSIDERED, Defendants pray this Court deny Plaintiffs' Special Exceptions and Plaintiffs' First Amended Motion to Compel Discovery, Defendants urge the Court to enter Defendants' proposed Protective Order, and for such other and further relief, both at law and in equity, to which these Defendants may show themselves entitled, and for which they will ever pray. DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL- PAGE 18 Respectfully submitted, AYERS & AYERS By ~YERS State Bar No. 01465820 JULIE B. TEBBETS State Bar No. 00793419 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817-267-9009 telephone 817-318-0663 facsimile ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the above and fore~oing document has been sent to Plaintiffs' counsel of record, via facsimile, on this the s' day of October, 2012. J~ DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL - PAGE 19 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § VS. § OF HAYS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 274th JUDICIAL DISTRICT PROTECTIVE ORDER Pursuant to and by agreement of the parties, the Court, accordingly makes and enters the following Order protecting the confidentiality of certain information within the knowledge of the parties, which is discoverable in this lawsuit. THEREFORE, it is hereby ORDERED and ADJUDGED as follows: 1. When a party produces any discovery material, it may designate all or any portion or portions thereof as confidential material by placing or affixing thereon (in such a manner as will not interfere with the legibility thereof) the word "Confidential." The contents of any page containing such designation and the complete contents of any document whose cover page bears such designation shall be confidential, unless the party producing such document clearly indicates thereon that only a portion of the page or document is to be so designated. 2. \Nith respect to any discovery material that has been designated as confidential material by the party producing or providing it, any other party may file a EXHIBIT A DEFENDANTS' RESPONSE TO PLAINTIFF'S SPECIAL EXCEPTIONS, PROTECTIVE ORDER AND MOTION TO COMPEL - PAGE 20 motion with the Court asserting that such material should not be deemed confidential. In the alternative, the parties may agree to deem as confidential any discovery material that has been designated by the producing party as confidential material. Until otherwise ordered by the Court, however, documents or answers designated as confidential hereunder may be inspected only by those persons described below. The inadvertent or unintentional disclosure by the supplying party of confidential information, regardless of whether the information was so designated at the time of disclosure, shall not be deemed waived, in whole or in part of a party's claim of confidentiality, either as to the specific information disclosed or as to any other information relating thereto or on the same or related subject matter. 3. Any discovery material designated as confidential material shall be used solely for the purpose of this litigation and not for any business or other purpose whatsoever, and shall not be disclosed to any person, firm or corporation for any purpose other than in connection with the prosecution or defense of this action. Confidential material (including copies thereof, and notes made therefrom), shall be disclosed only to parties and their employees, attorneys for named parties in this action (including in-house attorneys), persons regularly employed in such attorneys' offices, experts retained to consult or to testify in connection with this action, the Court (including the clerk of Court, deputy clerks and necessary staff), and court reporters transcribing depositions in this action. No copies shall be made except by or on behalf of attorneys for named parties. 4. Confidential material may be disclosed to other persons whose assistance is required by attorneys for named parties in the preparation for trial of this action, upon written consent of the attorney for the party which produced or provided the confidential DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE 21 material or upon compliance with the following requirements of this paragraph. The attorney proposing to disclose confidential material to such a person shall, before doing so, advise in writing, by telecopy or certified mail, return receipt requested, to the party who produced or provided such material, the name of the person to whom disclosure is proposed and a description of the material proposed to be disclosed. If, within five days of receipt of such advice, counsel so notified does not file a further motion for protective order with the Court or if a motion is filed but denied, then the proposed disclosure may be made. 5. Attorneys for named parties shall secure from any person to whom they make disclosure (other than persons regularly employed by them, in-house attorneys, court personnel, and court reporters) a written statement that he has read this protective order and agrees to be bound by its provisions. Such written statement, together with a list of the confidential material disclosed to such person and the date of disclosure, shall be maintained in the possession of the attorney until the conclusion of this lawsuit or until further ordered by the court. Confidential material may be disclosed to deponents during the course of their deposition if the attorney making such disclosure, on the record, first advises the deponents of the terms of this Protective Order, and secures their agreement to be bound by its terms. 6. In the event any confidential material is included with, orthe contents thereof are in any way disclosed in any pleading, motion, answer to interrogatory, deposition transcript, or other paper filed with the clerk of this court, such confidential material shall be kept under seal by the clerk until further order of this Court; provided, however, that such paper shall be furnished to the Court and attorneys for the named parties, and a duplicate copy thereof (with the confidential material deleted therefrom) may be place in the public DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE 22 record. 7. All confidential material shall be returned to the attorney for the party producing or providing the same at the conclusion of this lawsuit and no copies thereof shall be retained by any other person, including attorneys. Insofar as the provisions of this Protective Order restrict the communication and use of the documents produced hereunder, this Order shall continue to be binding after the conclusion of this litigation. Nothing in the foregoing provisions of this Protective Order shall be deemed to preclude any party from seeking or obtaining, on an appropriate showing, additional protection with respect to the confidentiality of documents or other discovery material or relief from this Protective Order with respect to the particular material designated hereunder as confidential material. SIGNED on this day of ,2012. JUDGE PRESIDING DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE 23 CAUSE NO. D-1-GN-12000705 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § vs. § OF TRAVIS COUNTY. TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 34Sth JUDICIAL DISTRICT AFFIDAVIT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS 1. My name is Florence Baker. I am an authorized representative of Everest National Insurance Company and Gallagher Bassett Services, Inc. (hereinafter referred to as the "Corporate Defendants") pertaining to the claims asserted in Ruiz v. Everest National Ins. co., at a/., Cause Number D-1-GN-1200070S. J am over 21 years of age, of sound mind, capable of making this Affidavit, and fully competent to testify to the matters stated herein. I have been and remain a supervisor of adjusters working on Plaintiff Joseph Rulz's workers' compensation claim. 2. I have reviewed the discovery submitted to the Corporate Defendants by Plaintiff. The majority of requests are so overbroad that they do not describe the precise category of documents sought. and do not provide enough direction for the Corporate Defendants to be able to know what documents are sought. Many requests also do not limit the request to a specific time period or category of documents such as the facts related to this particular claim. 3. The majority of requests are broad enough to seek attorney client communication, materia' which was prepared by an attorney, and documents prepared in anticipation of litigation after suit was filed. The Corporate Defendamsretained counsel to advise and represent the Corporate Defendants with regard to the handling of this claim and the representation before the Division of Workers' Compensation. Plaintiffs' discovery requests seek documents containing legal advice and information concerning attomeyfees between the Defendants' attorney and the Defendants. This information was created for the purpose of requesting legal advice or facilitating the rendition of professional legal services. For example, both the claim file and the claim notes contain communications ~ EXHIBIT ~ f" ss B with counsel as well as summaries of discussions with counsel. The Defendants believed that any communications had with our attorneys were privileged communications. Additionally, documentation regarding contracts or other agreements between Defendants and their counselor the amount of attorney fees billed by counsel forthe Defendants in this cause are privileged communications and have no relevance to the issues to be determined in this cause. Defendants used the services of attorneys with the law firm of Smith & Carr with regard to PlainUff Joseph Ruiz's administrative claim. 4, Furthermore, the discovery requests are broad enough to seek information concerning aU communications among the defendants. This inquiry is broad enough to encompass communications unrelated to this lawsuit. Likewise, the discovery requests are not limited to the issues in dispute. Communications, claim notes, and claim fife material after the alleged misconduct and after instigation of suit are not relevant andlor are were created in anticipation of litigation. Information regarding the setting of reserves is also proprietary and has no relevance to the claims which form the basis of this lawsuit. The adjuster handling Plaintiff Joseph Ruiz's workers' compensation fife did not have copies of the underwriting file or the actual insurance policy issued to Mr. Ruiz's employer. The underwriting file and the insurance policy did not impact any claims handling decisions made on this file. Plaintiffs' requests are overly broad, and not limited in sut,lject matter, time or scope. 5. Cheryl Verge's personnel file and the personnel files of supervisors, such as myself, contain documents which are confidential and proprietary and have no reievance to the issues which form the basis of this lawsuit. Furthermore, the files contain personal banking, health and identification information which have no relevance to this bad faith suit. 6. The request for all lawsuits would result in undue burden and expense to the Corporate Defendants in that no such list is maintained, and the requests for all lawsuits are not relevant to the specific facts ofthis claim. Bad faith lawsuits are very claim specific. Furthermore, Gallagher Bassett Services, Inc. has numerous offices in the United States. Everest National Insurance Company also has nationwide offices and Gallagher Bassett Services, Inc. does not handle all of Everest National Insurance Company claims. There is no nationwide centralized database listing information about lawsuits as requested by Plaintiffs. The only way to ascertain which workers' compensation claims also resulted in a lawsuit would require every file in every office to be examined on an individual basis. Such a review would require thousands of man hours if not months to accomplish, and would be extraordinarily burdensome. That time and expense would be a crushing burden over any time period. 7. The requests for all manuals, guidelines, policies. procedures. rules, regulations and instructions are overly broad and burdensome. Furthermore, other than the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas caselaw, any such manuals, guidelines, policies, procedures. rules, regulations and instructions are also proprietary documents. As noted above, the Corporate Defendants have numerous offices, and Gallagher Bassett Services, Inc. does not handle all of Everest National Insurance Company's claims. The requests, as worded, do not seek a specific document, and are not limited to the handling of Texas workers' compensation claims. As such, the requests are overly broad and are not likely to lead to admissibie evidence. Furthermore, the Defendants adjusted Plaintiff Joseph Ruiz's workers' compensation claim in accordance with the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas caselaw. Any alleged breach of the duty of good faith and fair dealing is determined based on whether the Defendants failed to comply with the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas casefaw in the handling of Plaintiff Joseph Ruiz's workers' compensation claim. In the handUng of Plaintiff Joseph Ruiz's workers' compensation claim, Everest National Insurance Company did not provide any manuals, guidelines, policies, procedures. rules, regulations or instructions regarding how to adjust this file to Gallagher Bassett Services, Inc. or Cheryl Verge. S. Defendants first anticipated that Plaintiffs might file a bad faith suit when the decision was made to deny Mr. Ruiz's claim on AprilS) 2011. At that point, the Defendants anticipated that the Plaintiffs may file a bad faith lawsuit. The denial was fiied on April 12, 2011. Defendants further anticipated litigation as a result of the administrative hearings scheduled over Plaintiff Joseph Ruiz'sworkers' compensation claim. Defendants received notice of the fkst administrative hearing on May 18. 2011 for a hearing set on June 8, 2011. Defendants anticipated fitigation in that Plaintiff Joseph Ruiz had retained an attorney by the June 8, 2011 hearing. The Contested Case Hearing on compensability of the claim was held on October 24, 2011. This furthered the Defendants' belief that Plaintiffs may file a bad faith lawsuit. 9. The information contained herein is true and correct based on my personal knowledge as a corporate representative and as a supervisor over Joseph Ruiz's workers' compensation claim. In the scope of my employment, I am familiar with the Plaintiff's workers' compensation file and the manner in which files are maintained. FURTHER, AFFIANT SAITH NOT. 410rence Ba~ SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the State of Texas, on this the C)f!) day of June, 2012. ~~{{,~ Notary Public, State of Texas My Commission Expires: ~ \Ci.\ ?-Ol(P ~""'A"~J"""'~JCO"'AO""'''''''..r ••••.••••••••...•.~ Xl MELISSA ANN DIXON § NOTARY PUBLtC. STATE Of TEXAS § "" MY OOMMISSION EXPIRES a S ~ OF~ JUNE 19,2016 § ~"""""'~""''''''''''''''''.Ao'"'''''''''''''''''''''''''''''''''''''''~'''''''''''~ CAUSE NO. 0-1-GN-12000705 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § w. § OF TRAVIS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 345th JUDICIAL DISTRICT AFFIDAVIT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS 1. My name is Florence Baker. I am an authorized representative of Everest Natlonal Insurance Company and Gallagher Bassett Services, Inc. (hereinafter referred to as the "Corporate Defendants") pertaining to the claims asserted in Ruiz v. Everest National Ins. Co., et al., Cause Number D-1-GN-12000705. I am over 21 years of age, of sound mind, capable of making this Affidavit, and fully competent to testify to the matters stated herein. I was the supervisor of the handling adjuster working on Plaintiff Joseph Ruiz's workers' compensation claim at all material times to this lawsuit. As such, I have personal knowledge of Plaintiff's workers' compensation claim. 2. S&K Technologies ("S&K") did not have access to or the ability to view any claim notes of Gallagher Bassett Services, Inc. 3. The information contained herein is true and correct based on my personal knowledge. FURTHER, AFFIANT SAITH NOT. ~Florence Baker, Affiant SUBSCRIBED ANp pWORN TO BEFORE ME, a Notary Public, in and for the State ofTexas, on this the ;;IDday of October,2m IJ '!L. &. ~WUA AUl{ ! !f(L/ Notary Public, State of Texas My Commission Expires: EXHIBIT ,g~ ~'" C/ &: CAUSE NO. D-1-GN-12000705 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § ~ § OF TRAVIS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 345th JUDICIAL DISTRICT AFFIDAVIT THE STATE OF ('y") T KNOW ALL MEN BY THESE PRESENTS: COUNTY OF L~ l( -£ 1. My name is Adele Vincent. I am an authorized representative of S&K Technologies ("S&K"). I am over 21 years of age, of sound mind, capable of making this Affidavit, and fully competent to testify to the matters stated herein. I am the contact person at S&K with regard to Joseph Ruiz' workers' compensation claim. As such I have personal knowledge of his claim for workers' compensation benefits. 2. S&K and its employees did not have the ability to review any electronic claim notes regarding the Joseph Ruiz workers' compensation claim. I was not even aware that such a possibility existed. 3. The information contained herein is true and correct based on my personal knowledge as a corporate representative. In the scope of my employment, I am familiar with the Joseph Ruiz' workers' compensation claim. FURTHER, AFFIANT SAITH NOT. SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and forthe State of ~,AQvska.~tt... . on this the .gh~ay of October, 2012. Sh '.c~.v" C(j, E l~k !J s. My Commission Expires: SUSAN D, EK.DAHL NOTARY PUBUC. for the State of Montana Resldinll at Hana.". 1"11 Myc:ornmission EXpires EXHIBIT Sa tember 01, 2015. 't) CAUSE NO. D-1-GN-1200070S JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § w. § OF TRAVIS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 34Sth JUDICIAL DISTRICT AFFIDAVIT .-- THE STATE OF (V\ I KNOVV ALL MEN BY THESE PRESENTS: COUNTY OF L~~ 1. My name is Adele Vincent. I am an authorized representative of S&K Technologies ("S&K"). I am over 21 years of age, of sound mind, capable of making this Affidavit, and fully competent to testify to the matters stated herein. I am the contact person at S&K with regard to Joseph Ruiz' workers' compensation claim. I assisted our workers' compensation carrier and attorney with information and witnesses they need with regard to Mr. Ruiz' workers' compensation claim. As such I have personal knowledge of his claim for workers' compensation benefits. 2. S&K and its employees believed that Robin Lowenkron with Smith & Carr was representing both S&K and the workers' compensation carrier's interests before the Division of Workers' Compensation with regard to Joseph Ruiz' workers' compensation claim because S&K was the insured under the workers' compensation policy. S&K employees, including myself, had communications with Ms. Lowenkron that we thought were private communications between us and our attorney. S&K did not believe that our communications with Ms. Lowenkron would be disclosed. 3. The information contained herein is true and correct based on my personal knowledge as a corporate representative. In the scope of my employment, r am familiar with the Joseph Ruiz' workers' compensation claim. FURTHER. AFFIANT SAITH NOT. Adele Vincent, Affiant EXHIBIT E SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the State of mQY\+Qnl1, , on this the .J./'1-day of May, 2012. My Commission Expires: SUSAN D. EKDAHL NOTARY PUBUC for the State of Montana Residing at Ronan, MT My Commission Expires September 01, 2015. Appendix 4 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT OF AMANDA RUIZ § PLAINTIFFS § § VS. § HAYS COUNTY, TEXAS § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER § BASSETT SERVICES, INe.; § AND CHERYL VERGE § DEFENDANTS § 274th JUDICIAL DISTRICT PLAINTIFFS' OBJECTIONS TO FLORENCE BAKER AFFIDA VIT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JOSEPH RUIZ AND AMANDA RUIZ, "Plaintiffs," in the above styled and numbered cause and files the following objections to the Affidavit of Florence Baker [Attached as Exhibit "A"]. Plaintiffs respectfully show the Court as follows: I. BACKGROUND A. Gallagher Bassett's Defective "Robo Affidavit." In opposing discovery requests that are common to workers' compensation bad faith cases, Defendant Gallagher Bassett files the same, or similar, "robo" Affidavit in opposition to Plaintiffs' standard requests for discovery. See Exhibit "A" Affidavit - Florence Baker [filed in this case 6/2012012]; Exhibit "B" Affidavit - Florence Baker 10128/2010 [filed in cause no. 2010-30365; Menjivar v. Gallagher Bassett, et. al- Harris County District Court]; and Exhibit "C" Affidavit - Teresa Blake 2125/2010 [filed in cause no. D-I-GN-09-002378; Moreno v. Gallagher Bassett, et. al - Travis County District Court]. B. Travis and Harris County District Courts have sustained objections. These "robo" Affidavits are objectionable as being conclusory; without proper foundation and/or knowledge; and containing legal conclusions without proper foundation or definitional structure. District Judge Dion Ramos; District Judge of the 55th District Court of Harris County, Texas, struck Florence Baker's Affidavit by Order dated November 8, 2010. See Exhibit "D." District Judge Suzanne Covington sitting in the 98th District Court of Travis County, sustained Plaintiffs' objections to the "robo" Affidavit of Teresa Blake and struck her Affidavit "to the extent it contains legal opinions and is conclusory." By Order dated March 25,2010. See Exhibit "E." It is respectfully submitted that this Court should do likewise. 1 II. AFFIDAVIT REQIDREMENTS In general, affidavits must be developed by someone with personal knowledge of facts that would be admissible in evidence, and establish that the Affiant is competent to testify on the facts set forth. See Rule 166a(f), TEX. R. eIV. P.; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). A comparison of all three Affidavits [Exhibits "A," "B," and "C"] show the "robo" nature of each Affidavit on their face. However, paragraph 5 relating to "personnel file" and "personnel files" clearly demonstrates Florence Baker's lack of knowledge in Exhibit "A." Due to the "robo" nature of the Affidavits, Florence Baker has included ,5 in the Affidavit before this Court where no request for personnel files was ever made. Defendants have merely repeated the ,5 from earlier Affidavits - See Exhibits "B" & "C" - where such personnel files were sought. This demonstrates a lack of knowledge that permeates the entirety of Baker's Affidavit. Plaintiffs' Objections to Florence Baker Affidavit 2 Defects in the substance of an affidavit may be raised at any time-even for the first time on appeal. See Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied); McMahan v. Greenwood, 108 S.W.3d 467,498 (Tex. App.-Houston [14th Dist.] 2003, pet. denied); and Restaurant Enterprises, LP v. Travelers Indemnity Co., __ S.W.3d __ 2010 WL 153610 (TexApp.-Austin, Jan. 152010). Conclusory affidavits which state conclusions without providing the underlying facts on which the conclusions are based are insufficient. Restaurant Enterprises, LP v. Travelers Indemnity Co., Id. at 3; San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695, 701 (n.6) (Tex. App.-Austin 2005, no pet.). Further, the failure to attach referenced documents renders an affidavit defective. See Brown v. Brown, supra, 145 S.W.3d at 752-53. Finally, the Affiant must show that the factual matters attested to in the affidavit are made upon the Affiant's personal knowledge and that such factual matters are true and correct. Florence Baker's Affidavit is defective on several levels and would not be admissible into evidence as required by Rule 166(a)(f) Tex. R. Civ. Proc. Accordingly, Florence Baker's Affidavit should be stricken. Plaintiffs' Objections to Florence Baker Affidavit 3 III. LACK OF FOUNDATION FOR THE STATEMENTS EXPRESSED A. Baker's Affidavit should be stricken for lack of foundation. The following paragraph-by-paragraph analysis establishes Baker's incompetence to testify as to the matters stated. Her incompetence is almost identical to that reviewed by the Houston 14thCourt of Appeals in Valenzuela v. State & County Mutual Fire Insurance Company, 317 S.W.3d 550, 553 (Tex. App. - Houston [14th Dist.], 2010 no pet.). Ironically, the affidavit rejected in Valenzuela gave even more information about the affiant (and her knowledge of "facts") than what Baker gives here. Baker's mere recitation that the "information" in her Affidavit is "based on my personal knowledge" is insufficient. Baker fails to show "factual specificity" such as "place, time, and exact nature of the alleged facts." Valenzuela,Id. at 553. Paragraph 1 merely states Baker's name and that she is "an authorized representative" of the two corporate defendants in this case. See ~ 1. Her Affidavit does not reveal her employer; the identity of who "authorized" her to represent the corporate defendants; where she resides; or even that she is authorized by the corporate defendants to make the statements contained in her Affidavit. Likewise, in Paragraph 2, she does not reveal what she has "reviewed" in reaching her conclusory statements, nor does she specify any of the "requests" to which she directs her conclusions - all made without any documentation as to "how" she acquired the knowledge to make such conclusory statements. See Footnote 1, supra and ~ 2; 5 Exhibit "A.". Valenzuela, Id. at 553. Plaintiffs' Objections to Florence Baker Affidavit 4 Further, in paragraph 3, Baker does not identify any particular expertise in legal matters nor does she refer to any "legal definitions" establishing the foundation for her conclusions regarding "privileged communications"; "relevance to the issues to be determined in this cause"; and "anticipation of litigation" (all legal conclusions). Such statements are nothing more than naked legal conclusions made without any identified specific special knowledge or foundation. Moreover, Baker's statement as to what "Defendants believed" gives no hint as to her personal knowledge forming the foundation or basis for such "belief." It is a mere conclusion without a factual basis. Paragraph 4 illustrates Baker's failure to provide an adequate foundation or give any generally accepted legal definitions for "anticipation of litigation" and "relevance" as legal concepts (all legal conclusions). Likewise, she fails to give any foundation or factual basis for her "knowledge" as to what the unidentified "adjuster" handling Mr. Ruiz's claim either had, or did not have, regarding the insurance policy relating to the Ruiz claim. Baker provides no foundation, knowledge or basis for her statement that "the insurance policy did not impact any claims handling decisions made on this file," (conclusory without foundation). Paragraph 5 clearly demonstrates Blake's lack of personal knowledge. ["The key IS whether the affidavit shows the affiant is testifying from personal knowledge."] Valenzuela,Id. at 553. See FN 1, supra. As revealed supra at footnote 1, Plaintiffs here did not seek Cheryl Verge's personnel file, Defendants merely repeated ~5 from an earlier affidavit in a case Plaintiffs' Objections to Florence Baker Affidavit 5 where personnel files were sought. Paragraph 5's inclusion starkly reveals Baker's lack of personal knowledge and is yet another reason to strike the entire affidavit as being incompetent. In paragraph 6, Baker gives no foundation or special legal knowledge--much less any factual or legal basis for her opinions that the discovery requests are "not relevant" (legal conclusion); that bad faith lawsuits are "very claim specific" (legal conclusion) or for her opinion that the time and expense would be "a crushing burden over any time period" (conclusory without factual foundation). See ~ 6. Moreover, it is undisputed that Gallagher Bassett has previously produced these "Litigation Logs" in other bad faith cases going back as early as January 1,2004. See Exhibit "F.,,2 In Paragraph 7, Baker offers no "knowledge" whatsoever - much less a definition - of "proprietary documents." Further, she offers no personal knowledge nor definition for her legal conclusion that Plaintiffs' requests "are not likely to lead to admissible evidence." She further offers no knowledge as to her legal conclusion that "the Defendants adjusted Plaintiff Joseph Ruizs workers' compensation claim in accordance with the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas caselaw." (legal conclusion). In paragraph 8, Baker provides no foundation for her conclusory assertion that the "Defendants first anticipated that Plaintiffs might file a bad faith suit when the decision was made to deny Mr. Ruiz's claim on April 8, 2011." (legal conclusion). Such 2 Indeed,Exhibit "F" shows the disingenuous nature of~ 6 in Baker's Affidavit where she states that "time and expense would be a crushing burden over any period of time - and yet such Logswere easilyproduced in other cases. Plaintiffs' Objections to Florence Baker Affidavit 6 conclusion is totally without factual basis - as are Baker's further conclusions as to what the "Defendants anticipated" at various points in time. Further, there is a total lack of foundation or knowledge as to what "furthered the Defendants' belief that Plaintiffs might file a bad faith lawsuit" (legal conclusion). Finally, Paragraph 9 in Baker's Affidavit is lacking appropriate foundation in that her statement does not meet the requirement that she must have personal knowledge of the factual matters contained in her Affidavit. Humphrey v. Caldwell, 888 S.W.2d 469, 471 (Tex. 1994). Indicative of this lack of personal knowledge of factual matters is Baker's statement that "the information contained herein is true and correct ... " See ~9. (Emphasis supplied). Accordingly, Baker's Affidavit should be stricken. IV. CONCLUSION As shown by a comparison of Exhibits "A," "B," and "C" and the treatment of such Affidavits by as evidenced by the Court Orders in Exhibits "D" & "E," Florence Baker's Affidavit is incompetent and should be stricken as being without proper knowledge, foundation, basis, underlying facts, and without any foundation for the conclusions and/or legal conclusions made. In sum, it is without any probative value to aid the Court in ruling on Defendants "canned" objections and claims of privilege. Accordingly, Florence Baker's Affidavit (Exhibit "A") should be stricken and not considered for any purpose with regard to supporting any objection and/or claim of privilege asserted by the Defendants. In the alternative, Plaintiffs' objections to the individual paragraphs of such Affidavit should be sustained and those paragraphs not Plaintiffs' Objections to Florence Baker Affidavit 7 considered for any purpose. Plaintiffs pray for such other and further relief to which they may show themselves justly entitled. Respectfully submitted, LAW OFFICE OF JOE K. LONGLEY /s/ Joe K. Longlev JOE K. LONGLEY Texas Bar No. 12542000 1609 Shoal Creek Blvd., Ste. 100 Austin TX 78701 Telephone: (512) 477-4444 Facsimile: (512) 477-4470 MOORE LANDREY, LLP ETHAN L. SHAW Texas Bar No. 18140480 JOHNP.COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd., Ste. 100 Austin, TX 78701 Telephone (512) 499-8900 Facsimile (512) 320-8906 THE SOECHTING LAW FIRM CHARLES SOECHTING Texas Bar No. 18821300 3331 Ranch Road 12, Suite 107 San Marcos, TX 78666 Telephone (512) 396-2900 ATTORNEYS FOR PLAINTIFFS Plaintiffs' Objections to Florence Baker Affidavit 8 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing document has been served by electronic mail, facsimile transmission and/or by first class u.s. mail, on Deanne C. Ayers, Ayers & Ayers, 4205 Gateway Drive, Ste. 100, Colleyville, Texas 76034, on this 9th day of October, 2012, in accordance with the Texas Rules of Civil Procedure. /s/ Joe K. Longley JOE K. LONGLEY Plaintiffs' Objections to Florence Baker Affidavit 9 EXHIBIT "A"“A” CAUSE NO. D-1-GN-12000705 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § ~ § OF TRAVIS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 345!h JUorCIAL DISTRICT AFFIDAVIT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS 1. My name is Florence Baker. I am an authorized representative of Everest National Insurance Company and Gallagher Bassett Services, Inc. (hereinafter referred to as the "Corporate Defendants") pertaining to the claims asserted in Ruiz v. Everest National Ins. Co., et a/., Cause Number D-1-GN-1200070S. I am over 21 years of age, of sound mind, capable of making this Affidavit, and fully competent to testify to the matters stated herein. I have been and remain a supervisor of adjusters working on Plaintiff Joseph Ruiz's workers' compensation claim. 2. I have reviewed the discovery submitted to the Corporate Defendants by Plaintiff. The majority of requests are so overbroad that they do not describe the precise category of documents sought, and do not provide enough direction for the Corporate Defendants to be able to know what documents are sought. Many requests also do not limit the request to a specific time period or category of documents such as the facts related to this particular claim. 3. The majority of requests are broad enough to seek attorney client communication, material which was prepared by an attorney, and documents prepared in anticipation of litigation after suit was filed. The Corporate Defendants retained counsel to advise and represent the Corporate Defendants with regard to the handling of this claim and the representation before the Division of Workers' Compensation. Plaintiffs' discovery requests seek documents containing legal advice and information concerning attomeyfees between the Defendants' attorney and the Defendants. This information was created for the purpose of requesting legal advice or facilitating the rendition of professional legal services. For example, both the claim file and the claim notes contain communtcations EXHIBIT B with counsel as wef! as summaries of discussions with counsel. The Defendants believed that any communications had with our attorneys were privileged communications. Additionally. documentation regarding contracts or other agreements between Defendants and their counselor the amount of attorney fees billed by counsel for the Defendants in this cause are privileged communications and have no relevance to the issues to be determined in this cause. Defendants used the services of attomeys with the law firm of Smith & Carr with regard to Plaintiff Joseph Ruiz's administrative claim. 4. Furthermore, the discovery requests are broad enough to seek information concerning all communications among the defendants. This inquiry is broad enough to encompass communications unrelated to this lawsuit. Ukewise, the discovery requests are not limited to the issues in dispute. Communications, claim notes, and claim file material after the alleged misconduct and after instigation of suit are not relevant andlor are were created in anticipation of litigation. information regarding the setting of reserves is also proprietary and has no relevance to the claims which form the basis of this lawsuit. The adjuster handling Plaintiff Joseph Ruiz's workers' compensation frie did not have copies of the underwriting file or the actual insurance poiicy issued to Mr. Ruiz's employer. The underwriting file and the insurance policy did not impact any claims handling decisions made on this fiJe. Plaintiffs' requests are overly broad, and not limited in sui;>jectmatter, time or scope. 5. Cheryl Verge's personnel file and the personnel files of supervisors. such as myself, contain documents which are confidential and proprietary and have no relevance to the issues which form the basis of this lawsuit. Furthermore, the files contain personal banking, health and identification information which have no reievance to this bad faith suit. 6. The request for all lawsuits would result in undue burden and expense to the Corporate Defendants in that no such list is maintained, and the requests for all lawsuits are not relevant to the specific facts of this claim. Bad faith lawsuits are very claim specific. Furthermore. Gallagher Bassett Services, Inc. has numerous offices in the United States. Everest National Insurance Company also has nationwide offices and Gallagher Bassett Services, Inc. does not handle all of Everest National Insurance Company claims. There is no nationwide centralized database listing information about lawsuits as requested by Plaintiffs. The only way to ascertain which workers' compensation claims also resulted in a lawsuit would require every file in every office to be examined on an individual basis. Such a review would require thousands of man hours if not months to accomplish, and would be extraordinarily burdensome. That time and expense would be a crushing burden over any time period. 7. The requests for all manuals, guidelines, poJides, procedures, ruies, regulations and instructions are overly broad and burdensome. Furthermore, other than the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas caselaw, any such manuals, guidelines, policies, procedures, rules, regulations and instructions are also proprietary documents. As noted above, the Corporate Defendants have numerous offices, and Gallagher Bassett Services, Inc. does not handle all of Everest National Insurance Company's claims. The requests, as worded, do not seek a specific document, and are not limited to the handling of Texas workers' compensation claims. As such, the requests are overly broad and are not likely to lead to admissible evidence. Furthermore, the Defendants adjusted Plaintiff Joseph Ruiz's workers' compensation claim in accordance with the Texas Workers' Compensation Act, Commissioner's Rules, Appeals Panel decisions and Texas caselaw. Any alleged breach of the duty of good faith and fair dea.ling is determined based on whether the Defendants failed to comply with the Texas Workers' Compensation Act. Commissioner's Rules, Appeals Panel decisions and Texas caselaw in the handling of Plaintiff Joseph Ruiz's workers' compensation claim. In the handling of Plaintiff Joseph Ruiz's workers' compensation claim, Everest Nationa/lnsurance Company did not provide any manuals, guidelines, policies, procedures, rules, regulations or instructions regarding how to adjust this fiie to Gallagher Bassett Services, Inc. Of Cheryl Verge. 8. Defendants first antiCipated that Plaintiffs might file a bad faith suit when the decision was made to deny Mr. Ruiz's claim on April 8, 2011. At that point, the Defendants anticipated that the Plaintiffs may file a bad faith lawsuit. The denial was fiied on April 12. 2011. Defendants further antiCipated litigation as a result of the administrative hearings scheduled over Plaintiff Joseph Ruiz's workers' compensation claim. Defendants received notice of the first administrative hearing on May 18, 2011 for a hearing set on June 8, 2011. Defendants anticipated litigation in that Plaintiff Joseph Ruiz had retained an attorney by the June 8, 2011 hearing. The Contested Case Hearing on compensability of the claim was held on October 24, 2011. This furthered the Defendants' belief that Plaintiffs may file a bad faith lawsuit. . 9. The information contained herein is true and correct based on my personal knowledge as a corporate representative and as a supervisor over Joseph Ruiz's workers' compensation claim. In the scope of my employment, I am familiar with the Plaintiff's workers' compensation file and the manner in which files are maintained. FURTHER, AFFIANT SAITH NOT. SUBSCRIBED AND SWORN TO BEFORE ME. a Notary Public, in and for the State of Texas, on this the db day of June, 2012. (~ftWLvjCL Cl < )1/~A-) Notary Public, State of Texas My Commission Expires: C\.'--(j'OJ . vJ2. \ C~\ ':::;>.0 t ~ EXHIBIT“B” "B" OCT-28-2010 FRI 03:25 PM AYERS & AYERS FAX NO. 8173180672 P. 12/14 , ..... _._--- CAUSE NO. 201 ()"30365 LEYDI MENJIVAR § IN THE DISTRJCT COURT § Plaintiff, § § Vs. § § § 55TH JUDICIAL DISTRICT § § JNDEMNITY INSURANCE COMPANY § OF NORTH AMERICA, GALLAGHER § BASSETI SERVICES, INC., AND § FLORENCE BAKER § § Defendants, § HARRIS COUNTY, TEXAS 1 AFFIDAVIT ! t THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS t 1. Myname is Florence Baker. Iam an authorized representative of Indemnity Insurance Company of North America and Gallagher Bassett Services. Inc. (hereinafter referred to as the "Corporate Defendants") pertaining to the claims asserted in 'Menjivarll. Indemnity Ins. Co., et aL, Cause Number 2010-30365. I am over 21 years of age, of sound mind. capable of making this Affidavit, and fully competent to testif\j to the matters stated herein. 2. I have reviewed ·the discovery submitted to the Corporate Defendants by Plaintiff. The majority of requests are so overbroad that they do not describe the precise category of documents sought, and do not provide enough direction for the Corporate Defendants to be able to know what documents are sought Many requests also do not I· limit the request to a specific time period or category of documents such as the facts related to this particular claim. I I i 3. The majority of requests are broad enough to seek attorney client i i communication, material which was prepared by an attorney. and documenis prepared in I I anticipation of litigation after suil WdS filed. The Corporate Defendants retained counsel to advise and represent the ,Corporate Defendants with regard to the handling of this claim and the representation before the Division of Workers' Compensation. Foraxample. both I the claim file and the claim notes contain communications with counsel as well as summarlee of discussions with counsel. The Defendants believed that any I I I I OCT-29-2010 FRI 03:25 PM AYERS & AYERS FAX NO, 8173180872 p, 13/14 communications had with our attorneys were privileged communications. Additionally. documentation regarding contracts or other agreements between Defendants and their counsel 01 the amount of attorney fees billed by counsel for the Defendants in this cause are privileged communications and have no relevance to the issues to be determined in this cause; 4. Furthermore, the discovery requests are broad enough to seek information concerning aU communications among the defendants. This inquiry is broad enough to encompass communications unrelated to this lawsuit. likewise, the discovel)' requests are not limited to the issues in dispute. Communica1lons. claim notes, and claim file material after the alleged misconduct and after instigation of suit are not relevant andlor are.were created in anticipation of litigation. Information regarding the setting of reserves is also proprietary and has no relevance to the claims which form the basis of this lawsuit. The adjuster handling Plaintiffs workers' compensation file did not have copies of the underwriting file or the actual lnsuranca policy issued to Plaintiffs employer. The underwriting file and the insurance policy did not impact any claims handling decisions made on this file. Plaintiff's requests are oveny broad,and not limited in subject matter, time or scope. 5.' Teresa Blake's personnel me and the personnel files ofsupervisors contain documents which are confidential and proprietary and have no relevance to the issues which fonn the basis of this lawsuit. Furthermore, the tiles contain personal banking. health and identification information which have no relevance to this bad faith suit 6. The request for all lawsul1swould result in undue burden and expense to the Corporate Defendants in that no such list is maintained, and the requests for all lawsuits are not relevant to the specffic facts at this claim. Bad faith lawsuits are very claim specific. Furthermore. Gallagher Bassett Services, lne.. has numerous offices in the United States. f Indemnity Insurance Company of North America also has nationwide offices and utili2es thjrtf party administrators as well. There is no nationwide centraliZed database listing information about lawsuits as requested by Plaintiff. The only way to ascertain whiCh workers' compensation claims also resulted in a lawsuit would require every fiJe in avery office to be examined on an individual basis. Such a review would require 1housands of man hours if not months to accomplish, and would be extraordinanly burdensome. That time and expense would be a crushing burden over any time period. 7. The requests for all manuals, guidelines, policies, procedures. rules, regulations and instructions are overly broad and burdensome. Furthermore, other than I the Texas Workers' Compensation Act. Commissioner's Rules, Appeals Panel decisions and Texas caselaw, any such manuals, guidelines. poliCies, procedures, rules. regulations ~r and instructions are also proprietary documents. As noted above, the Corporate f Defendants have numerous offices, and Indemnity Insurance Company of North America also utilizes multiple third party administrators. The requests, as worded, do not seek a f i specific document. and are not lImited to the handling of Texas workers' compensation i claims. As such, the requests are overJy broad and are not likely to lead to admissible evidence. Furthermore,1he Defendants adjusted Plaintiffsworkets' compensation claim-in I ~ I OCT-29-2010 FRI 03:25 PM AYERS & AYERS FAX NO. 8173180672 P. 14/14 accordance with the Texas Workers' Compensation Act, Commissioners Rules, Appeals Panel decisions and Texas caselaw. Any alleged breach of the duty of good faith and fair dealing is determined based on whether the Defendants failed to comply with the Texas Workers' Compensation Ad, Commissioners Rules, Appeals Panel decisions and Texas caselaw in the handling of Plaintiffs workers' compensation claim. In the handling of Plaintiffs workers' compensation claim, Indemnity Insurance Company of North America did not provide any manuals, guidelines, policies, procedures, rules, regulations or instructions regarding how to adjust this fila to Gallagher Bassett Services, Inc. or Teresa Blake. 8. The initial denial on this file was dated November 6, 2008. At that point, the Defendants anticipated that the Plaintiff may file a bad faith lawsuit. On November 19, 2008. the Plaintifffi attorney advised of his representation. This furthered the Defendants.' belief that Plaintiff may file a bad faith lawsuit. On January 27, 2009, the parties participated in a Benefit Review Conference before the Division ofWo~nt Compensation to address denials on the workers' compensation cJalm. The parties Originally participated in a Contested Case Hearing on March 30, 2009, and it was rescheduled for June 1, 2009. The Defendants received a Deceptive Trade Practices Act demand letter dated May 11> 2010. 9. The infonnation contained herein is true and correct based on my personal knowledge as a corporate representative. In the scope of my employment. I am familiar with the Plaintiffs workers' compensation file and the manner in which files are maintained. FURTHER, AFFIANT SAITH NOT. FfOrence Baker, Affiant SUBSCRIBED AND~WORN TO BEFORE ME, a Notary Public, in and for the State of Texas, on this the~ Clay of October, 2010. ~k~{JiM) NOta Public, State OfTexas My Commission Expires: I f: r- I I ! 1 i •i I I ti I EXHIBIT “C”"C" FEB-25-2010 THU 10:10 AM Ayr~s & AYERS FAX NO. 817g180672 P. 13 I ! . CAUSE NO. D-1-GN--09-002378 I I STEPHEN MORENO AND ALPHA § IN THE DISTRICT COURT MORENO § § § ni VS. § 98 JUDICIAL DISTRICT § s ZURICH AMERICAN INSURANCE § COMPANY, GALLAGHER BASSETI § SERVICES, INC., AND TERESA BLAKE § TRAVIS COUNTY, TEXAS AFFIDAVIT I- THE STATE OF TEXAS . KNOW ALL MEN·BY THESE PRESENTS: I COUNTY OF HARRIS 1. Myname is Teresa Blake. I am an authorized representative of Zurich American Insurance Companyand Gallagher BaS$ett Services, Inc. (hereinafter referred to as the "Corporate Defend~nts j pertaining to the claims asserted in Moreno v. Zurich American Ins. Co., at al., Cause Number D-1-GN--09-002378. I am over 21 years of age, of sound mirtd, capable of making this Affidavit, and fully competent to testify to the mattel'$ stated herein. I I 2. I have reviewed the discovery submitted to the Corporate Defendants by Plaintiff. The majority of requests are so overb road that they do not describe the precise category of doouments sought, and do not provide enough direction for the Corporate .Defendants to be able to know what documents are sought Many requests also do not f limit the request to a specific time pericd or category of documents such as the facts related to this particular claim_ 3. The majority of requests are broad enough to seek attorney client communication, material which was prepared by an attorney, and documents prepared in antiCipation af litigation after suit was filed. The Corporate Defendants retained counsel to advise and represent the· Corporate Defendants with regard to the handling of this claim and the representation before the Division of Workers' Compensation. For example, both the claim file and the claim notes contain communications with counsel as well as summaries of discussions with counsel. Additionally, documentation regarding contracts or other agreements between Defendants and their counselor the amount of attorney fees billed by counsel for the D~ndants in this cause are privileged communications and have no relevanca to the issues to be determined in this cause. EXPT 00315 THU AM FEB-25-2010 10:10 AVcoS & AYERS FAX NO. 81T1180672 P. 14 ~ 4. Furthermore, the discovery requests are broad enOUg~eek information concerning all communications among the defendants. This inquiry is broad enough to encompass communications unrelated to this lawsuit Likewise, the discovery requests are not limited to the issues in.dispute. Communications, claim notes, and claim file material after the alleged misconduct and after instigation of suit are not relevant and/or are were created in anticipation of litigation. Information regarding the setting of reserves is also .prop~ietary and has no relevance to the claims which fonn the basis of this lawsuit. The adjuster handling Plaintiff's workers' compensation file did not have copies of the underwriting file or the actual insurance pqlicy issued to Stephen Morano's employer. The underwriting file and the insurance policy did not impact any claims handling decisions made on this file. Plaintiffs requests are overly broad, and not limited in subject matter, time or scope. 5. Teresa Slake's personnel file contain documents which are confidential and proprietary and have no relevance to the Issues which form the basis of this lawsuit Furthermom, the file contains personal banking, health and identification information which has no relevance to this bad faith suit. 6. The request for all lawsuits would result in undue bUrden and expense to the Corporate Defendants in that no such list is maintained, and the requests for afllawsuits are not relevant to the specific facts of this claim. Bad faith laWSUitsarevery ciajm specific. Furthennor~.Gallagher Bassett Services, Inc. has numerous offices in the United States. Zurich American Insurance Company also has nationwide offices and utitizes third party administrators as well. There is no .nationwide centralized database listing information about lawsuits as requested by Plaintiff. The only way to ascertain which workers' compensation claims also resulted in a lawsuit would require every file in every office to be examined on an Individual basis. Such a review would require thousands of man hours if not months to accomplish, and would be extraordinarily burdensome. That time and expense would be a crushing burden over any time period. 7. The requests fur all manuals, guidelines, porlCies, procedures, rules, regUlations and instructions are overly broad and burdensome. Furthermore, other than the Texas Workers' Compensation Act, Commissioner's Rules. Appeals Panel decisions and Texas caselaw. any such manuals, guidelines, policies, procedures, rules, regulations and instructions are also proprietary documents. As noted above, the Corporate Defendants have numerous Offices, and Zurich American Ins.urance Company also utilizes multiple third party administrators. The requests, as worded, do not seek a specific document, and are not limited to the handling of Texas workers' compensation claims. As such, the requests are overly broad and are not likely to lead to admissible evidence. Furthermore, the Defendants adjusted Stephen Moreno's workers' compensation claim in accordance with the Texas Workers' Compensation Act, Commissioners Rules, Appeals Panel decisions and Texas caselaw. Any alleged breach of the duty of good faith and fair deafing is deiermined based on whether the Defendants failed to comply with the Texas Workers' Compensation Act, Commissioner'S Rules, Appeals Panel decisions and Texas caselaw in the handling of Stephen Moreno's workers' compensation claim. In the handling of Stephen Moreno's workers' compensation claim. Zurich American Insurance EXPT 00316 FEB-25-2010 THU 10:10 AM AyroS & AYERS FAX NO. 817~180672 P. 15 Company did not provide any manuals. guidelines. policies, procedures, rules, regulations or instructions regarding how to adjust this file to Gallagher Bassett Services, Inc. or Teresa Blake. 8, On January 27, 2008, during a telephone conversation with the Plaintiff, he became angry and advised that he was going to contact his attorney about the handling of his workers' oompensation claim. At that point, I anticipated that he may file a bad faith laWsuit On April 2, 2008, an attorney for Plaintiff sent a letter stating that that they "ate holding Gallagher Bassett responsible for any ramifications from this unjustified behavior." This furthered my belief that Plaintiffs may fife a bad faith lawsuit A Benefit Review Conference was scheduled at Plaintiffs request for November 25. 2008, but it was rescheduled. On December 4, 2008, the parties participated in a Benefit Review Conference before the Division of Workers' Compensation to address denials on the workers' compensation claim; The parties participated in a Contested case Hearing on January 20, 2009. On March 12, 2009, Stephen Moreno's administrative attorney sent an emaH and latter to the workers' compensation carriers administrative attorney further alleging violation of rules. These communications further made me anticipate the filing of a bad faith lawsuit. The Defendants received a Deceptive Trade Practices Act demand letter dated July 2.4, 2009. There remain ongoing disputed issues with regard to the workers' compensation claim in that Stephen Moreno has indicated that he is disputing his impairment rating. 9. The infonnation contained herein is true and correct based on my personal knowledge as a corporate representative. In the scope of my employment, I am familiar with the Stephen Moreno file and the manner in which the files are maintained. FURTHER, AFFIANT SAITH NOT, Teresa Blake, Affiant SUBSCRIBED ~ SWORN TO BEFORE ME. a Notary Public, in and for the State of Texas, on this the 'i+1tay of February, 2010. ~s!j)f.fY I My Commission j:Y.pires; rAP/I Cf /;;;...0 Id-- I J I I EXPT 00317 EXHIBIT "D"“D” . .. CAUSE NO. 2010 - 30365 LEYDI MENJIVAR § IN THE DISTRlCT COURT o(1/~~ § PLAINTIFF § § VS. § § INDEMNITY INSURANCE COMPANY § ss" JUDICIAL DISTRICT OF NORTH AMERICA, GALLAGHER § BASSETT SERVICES, INC. AND § TERESA BLAKE § § DEFENDANTS § HARRIS COUNTY, TEXAS ORDER On this 8th day of November, 2010, came on for hearing the Plaintiff's Motion to Compel. and after considering such Motion and hearing the arguments of counsel and reviewing the pleadings, and it appearing to the Court that such motion has merit and is GRANTED as follows. It is ORDERED as follows: 1. Defendants Indemnity Insurance and Gallagher Bassett Services' objections and claims of privilege made in response to RFP Nos. "1,4, I!, and 17 (claims tile and notes) are OVERRULED and Defendants arc ORDERED to produce responsive documents through the date benefits were paid (as ordered by the CCH officer in the underlying w9r:crs' compensation case) at the time and place ordered below, OIX~~~ ~ ~ vkL ~~\\be ~ -h, w--~ ~f;JI~ 2. Defendants Indemnity Insurance and Gallagher Bassett Ser~icbs' ~l\c» objections and claims of privilege made in response to RFP Nos. 2 and 3 (manuals; ~" guidelines for handling claims) are OVERRULED and Defendants are ORDERED to produce responsive documents at the time and place ordered below. 3. Defendants Indemnity Insurance and Gallagher Bassett Services' oejictiel'l'~;.Hi elai~f pxivil5@2fuS to the .11t'dOEwritif\~ Hill! u:l1tticn~ t@ tk4i ,,€7Plte?3' ® c~pensatiQB policy ,~P No, 7) ill I eVI3RP£i iD tr; the G1.ttMfN.liat gmwd:tl~ ORDERED to produce the workers' compensation insuring agreement that applies to the Menjivar claim at the time and the place set forth below . .4.-- Ocfendimts Indemnity Insurance ana Gallagher Bassett 'c~'~'\ objections and claims of privilege made in response o. 12 (attorneys' fees) a~ 5. Defendants Indemnity Insurance and Gallagher Bassett Services' objections and claims of privilege made in response to RFP No. 15 (other workers' compensation bad-faith claims and lawsuits over the past 5 year period in Texas) are OVERRUL~endants Indemnity.~~~~ Insurance and Gallagher "T~~/~ Bassett servicj are ORDERED to produce resI!:8f?j!~ documents at the time and place set forth below. 6. IT [8 rURTHER ORDERED that the Plaintiffs Objections to the Affidavit of Florence Baker are. sustained and her Affidavit is stricken. 7. IT IS FURTHER ORDERED that Plaintiff's request for entry of a protective order is GRANTED. These Defendants are ORDERED to produce the responsive documents as set forth above no later than 5:00 p.m. on ~~ .~~ {1~, 20 10 at i609 Shoal Creek Blvd., Suite 100, Austin, Texas 2 IT IS so ORDtRED. SIGNED this'h-rt~ day of November, 2010. --~~~~------dge Dion Ramos ey-----.,..~~----- 3 I. Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this June 28, 2012 Certified Document Number: 46883873 Total Pages: 3 Chris Daniel, DISTRICT CLERK HARRIS COUN1Y, TEXAS T"'accordance with Texas Government Code 406.013 electronically transmitted authenticated 2uments are valid. If there is a question regarding the validity of this document and or seal please e-mall [email protected] EXHIBIT "E"“E” DC BK10090 PG2191 Filed in The District Court of Travis County, Texas MAR 2 5 2010 AB Cause No. D-I-GN-09-002378 At 1I:a:t tl.M. Amalia Rodrigulz-Met'ldon. Clerk STEPHEN MORENO AND § IN THE DISTRICT COURT ALPHA MORENO § Plaintiff, § § v. § § OF TRAVIS CO:~n~~S Interlocutory ~ ZURICH AMERICAN INSURANCE § Disp Parties: ~ CO~ANY,GALLAGHER § Dlsp code: CVD / CLS fA- BASSETT SERVICES, INC. § Redact pgs: " [\.1A- AND THERESA BLAKE. § SAc.. ~ Defendant. § 98th JUDICIAL ~f§"ltICT Clerk, _ ORDER On this 4thh day of March, 2010, came on for hearing the Plaintiffs Motion to Compel, and after considering such Motion and hearing the arguments of counsel and reviewing the pleadings, and it appearing to the Court that such motion has merit and is GRANTED as follows. It is ORDERED as follows: 1. Defendant Zurich's objections and claims of privilege made in response to RFP Nos. 1,4, 7, 12. 13, 14 and 15 (claims file and notes) are OVERRULED and Defendant Zurich is ORDERED to produce responsive documents through the date of the contested case hearing (January 20, 2009) in the underlying workers' compensation case at the time and place ordered below. 2. Defendant Zurich's objections and claims of privilege made in response to RFP Nos. 2, 3 and 6 (manuals; guidelines for handling claims) are SUSTAINED as the discovery requests at issue ask for manuals actually used in the adjusting of Plaintiffs' underlying claim. 1 111~111111l11111l1l111l111111111ll111111l1l1 ~lllm 001440032 eLM DC BK10090 PG2192 3. Defendant Zurich's objections and claims of privilege as to the underwriting file relating to the .workers' compensation policy (RFP No. 11) are OVERRULED to the extent that Defendant Zurich is ORDERED to produce the workers' compensation insuring agreement that applies to the Moreno claim at the time and the place set forth below. 4. Defendant Zurich's objections and claims of privilege made in response to RFP Nos. 17 and 18 (attorneys' fees) are OVERRULED and Defendant Zurich is ORDERED to produce documents responsive at the time and place as set forth below. 5. Defendant Zurich's objections and claims of privilege made in response to Plaintiffs RFP No. 21 (other workers' compensation bad-faith claims and lawsuits in Texas since January I, 2004) are OVERRULED and Zurich is ORDERED to produce responsive documents at the time and place set forth below. 6. Defendant Gallagher Bassett Services, Inc.' s objections and claims of privilege relating to RFP Nos. 1, 4, 7, 12, 13, 14 and 15 (claims file and notes) are OVERRULED and Gallagher Bassett Services, Inc. is ORDERED to produce responsive documents through the date of the contested case hearing (January 20, 2009) in the underlying workers' compensation case at the time and place set forth below. 7. Defendant Gallagher Bassett Services, Inc.ts objections and claims of privilege relating to RFP Nos. 2, 3, 6 and 20 (manuals; guidelines for handling claims), are OVERRULED and Gallagher Bassett Services, Inc. is ORDERED to produce responsive documents at the time and place set forth below. 8. Defendant Gallagher Bassett Services, Inc.'s objections and claims of privilege made in response to RFP Nos. 17 and 18 (attorneys' fees) are OVERRULED and 2 DC BK10090 PG2193 Gallagher Bassett Services, Inc:-is ORDERED to produce responsive documents at the time and place set forth below. 9. Defendant Gallagher Bassett Services, Inc.'s objections and claims of privilege made in response to RFP No. 21 (other workers' compensation bad-faith claims and lawsuits in Texas since January 1,2004) are OVERRULED and Gallagher Bassett Services, Inc. is ORDERED to produce responsive documents at the time and place set forth below. 10. IT IS FUTHER ORDERED that the Affidavit of Theresa Blake is stricken to the extent it contains legal opinions and is conclusory. 11. IT IS FUTIIER ORDERED that Defendants' request for entry of a protective order is DENIED. The parties are encouraged to enter a Rule 11 Agreement using the Austin Division Federal Protective ili maintain the confidentiality of any document ordered produced herein. These Defendants are ORDERED to produce the responsive documents as set forth above no later than 5:00 p.m, on Monday, April 12,2010 at 1609 Shoal Creek Blvd., Suite 100, Austin, Texas. IT IS SO ORDERED. SIGNED this ~5 day of March, 2010. 3 MA/o[-lI-~UlU 'fHU 11:04 AMArERS & ~DCDCBK10090 PG2194X NO. 8I73180672 P, 05 APPROVED AS TO FORM LAW OFFICES OF lOE K. LONGLEY . 1609 Shoal Creek Blvd., Suite 100 Austin, Texas 78701 TcJephOlle: (512)4?7~ FacaimiJc: (512) 477-4470 ~¥;c= . loe K.l.ongley -lfJ- 2tNd Texas Bar No. 12S420oo ~ MOORE LANDRBY, u.P E1HAN L. SHAW Texas BarNo. 18140480 JOHN P. COWART Texas Bar No. 04919500 1609 Shoal Creek Blvd, Suite 100 Austin. Texas 78701 Telephone: (512) 499-8900 Facsimile: (S 12) 32()"8906 ATTORNEYSFORPL~S AYERS .\\ AYERS 4205 Gateway Drive, Suite 100 Col1eyviUe, Texas 76034 Telephone: (817) 267-9009 FacsinUlc: (817) 318-0663 State aar No. 00793419 AITORNEYS FOR DEFBNDANTS 4 · EXHIBIT“F” "F" CERTIFICATE OF SERVICE I hereby certify that on this the 7th day of May, 2010, a true and correct copy of the above and foregoing document was served on lead counsel of record for Plaintiffs, via certified mail, return receipt requested. DEFENDANT GALLAGHER BASSETT SERVICES, INC.'S FIRST SUPPLEMENTAL OBJECTIONS AND RESPONSES TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION - PAGE 15 j . CAUSE NO. D-1-GN-09-002378 i,. ,i STEPHEN MORENO AND ALPHA IN THE DISTRICT COURT MORENO VS. 98TH JUDICIAL DISTRICT I., I ZURICH AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., AND TERESA BLAKE TRAVIS COUNTY, TEXAS CAUSE NO. 219-00018-06 MAXIMINO CARILLO IN THE DISTRICT COURT VS. 219TH JUDICIAL DISTRICT INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA AND GALLAGHER BASSETT .• COLLIN COUNTY, TEXAS CAUSE NO. 153-237322-09 ANNE-MARIE BLACK-LARKIN IN THE DISTRICT COURT VS. 153RD DISTRICT COURT ZURICH AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., AND GINA GREGOR ' TARRANT COUNTY, TEXAS CAUSE NO. 296-00341-062S3B-O0341~-O6 DEBI GOODMAN § IN THE DISTRICT COURT 9531 GOODMAN §2 IN THE DiSTR£CT coum“ § VS-VS. § § 296TH JUDICIAL DISTRICT > §g 296?” JUDlCiAL DISTRiCT ACE AMERKIAN AMERICANwsuaimcs INSURANCEco., CO., § GALLAGHER BASSETF BASSETTssravzcss, SERVICES,!NC., INC., § AND AMY MARECLE‘ . § comwCOLLINcoumv, COUNTY, TEXAS CAUSE NO. 213507-05 VALEAN CHILDERSC:-nwaas § ENIN THE DISTRICTuzsmcr comm‘ COURT § § VS.vs. § § § TARRANT COUNTY, TEXAS § GALLAGHER BASSEDBASSETT SERVICES,SERVECES, § INC.,!NC., MYRTIS LACY AND ZURICH 5G'H03£0‘)¢03¢0'H0’H0'3f-0'M’-0N0’!§ AMERICANAMERECAN INSURANCECOMPANY § ' 17TH17*” JUDICIALauozcw. DISTRICTmsmm CAUSE NO. 213503-O5213508-05 BRENDA THOMAS § INEN THE DISTRICTCOURT § § VS. § § § TARRANTCOUNTY, TEXAS § GALLAGHERBASSETT BASSEDSERVICES. SERVICES, {0'H0.!(0160'3¢09£03££7H'-OM03§ INC.,H\£C., ANDAME} MYRTIS LACY § 153*”153RD JUDICIALJUDfCIAL DiSTREC‘i'_ DISTRICT CAUSE NO. 48-218372-06 JOHNNY SEAY IN THE DISTRICT COURT VS. TARRANTCOUNTY,TEXAS GALLAGHER BASSETI SERVICES, INC., STAR INSURANCE COMPANY, AND LINDA SIPKO 48th JUDICIAL DISTRICT CAUSE NO. 296-1920-07 JOSE ADAME § IN THE DISTRICT COURT § § VS. § 296TH JUDICIAL DISTRICT § AMERICAN ZURICH INS. CO., § GALLAGHER BASSETT SERVICES, § INC. AND TRINA EMBRY § COLLIN COUNTY, TEXAS CAUSE NO. CV37854 MARK FRIDDLE § IN THE DISTRICT COURT § Plainttif, § § vs. § § § HOPKINS COUNTY, TEXAS FIDELITY AND GUARANTY § INSURANCE UNDERWRITERS, INC., § GALLAGHER BASSETI SERVICES, § INC., AND APRIL POWELL § § Defendant, § 62ND JUDICIAL DISTRICT CAUSE NO. 28523-A PAMELA HOUSE § IN THE DISTRICT COURT § § VS. § 77TH JUDICIAL DISTRICT § § AMERICAN ZURICH INSURANCE § COMPANY. GALLAGHER BASSETT § SERVICES. INC .• AND TRINA § DENISE EMBRY . § LIMESTONE COUNTY. TEXAS CAUSE NO. 2007-34061 DAVID WESLEY MCCOY; IN THE DISTRICT COURT VS. HARRIS COUNTY. TEXAS ATLAS BOLT & SCREW COMPANY ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., AND REBECCA STACEY 165TH JUDICIAL DISTRICT CAUSE NO. DC-08-04653-K' RAYMOND DENNIS § IN THE DISTRICT COURT § Plaintiff, § § VS. § 192nd JUDICIAL DISTRICT § ZURICH AMERICAN INSURANCE § COMPANY, GALLAGHER; § BASSETI SERVICES, INC., AND § MYRTIS LACY § § Defendants, § OF DALLAS COUNTY, TEXAS , I. CAUSE NO. 01722980608 BRENDA KELLY § IN THE DISTRICT COURT § § § vs. § FIDELITY AND GUARANTY ~ 17thJUDICIAL DISTRICT INSURANCE COMPANY; , § DON YATES; AND: § , GALLAGHER BASSETT SERVICES, § INC. § OF TARRANT COUNTY, TEXAS CAUSE NO. 08-1S687-C SHARON KIRVEN § IN THE DISTRICT COURT § Plaintiff, § § VS. § 68th JUDICIAL DISTRICT OF § § AMERICAN ZURICH INSURANCE § COMPANY, GALLAGHER BASSETT § SERVICES, INC., AND BENITA § CREAG ; § § Defendants, § DALLAS COUNTY, TEXAS CAUSE NO. 96-232560-08 CHARLOTTE RATCLIFF § IN THE DISTRICT COURT § § VS. § 96TH DISTRICT COURT § ZURICH AMERICAN INSURANCE § COMPANY, GALLAGHER BASSETT § SERVICES, INC., AND TR,INA EMBRY § TARRANT COUNTY, TEXAS CAUSE NO. 236 233704 08 JACK PETERS IN THE DISTRICT COURT Plaintiff, VS. TARRANT COUNTY, TEXAS ARCH INSURANCE COMPANY, GALLAGHER BASSETI SERVICE, INC. AND MARCI MANGHAM Defendants, 236th JUDICIAL DISTRICT CAUSE NO. C-269S-08-B GUADALUPE IBARRA § IN THE DISTRICT COURT § Plaintiff, § § VS. § § 93RD JUDICIAL DISTRICT ARCH INSURANCE COMPANY § GALLAGHER BASSETT: SERVICES, § INC., AND MARCI MANGHAM § § Defendants. § HIDALGO COUNTY, TEXAS CAUSE NO. 28-09 KARL RAVELLElTE IN THE DISTRICT COURT VS. UPSHUR COUNTY, TEXAS TRANSPORTATION INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC. AND MYRTIS LACY 11STHJUDICIAL DISTRICT CAUSE NO. 0701161 MARIA SANTIBANEZ IN THE DISTRICT COURT VS. DALLAS COUNTY, TEXAS ZURICH AMERICAN INSURANCE COMPANY,GALLAGHER BASSETT SERVICES, INC., AND CORINA ZAHEDANI 101ST JUDICIAL DISTRICT CAUSE NO. 048-222526-07 MARY MCCAMMON IN THE DISTRICT COURT VS. TARRANT COUNTY, TEXAS· OLD REPUBLIC INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC. AND KIMBERLY CHILDRESS 48th JUDICIAL DISTRICT CAUSE NO. 296-02544-07 MICHAEL SMITH IN THE DISTRICT COURT VS. 296TH JUDICIAL DISTRICT AMERICAN CASUALTY CO. OF READING, PENNSYLVANIA, GALLAGHER BASSETT SERVICES, INC., AND NEAL PRICE COLLIN COUNTY. TEXAS . CAUSE NO. 153-219311-06 ANNE-MARIE BLACK-LARKIN IN THE DISTRICT COURT VS. 153rd JUDICIAL DISTRICT ZURICH AMERICAN INSURANCE CO., I GALLAGHER BASSETT SERVICES, INC., AND GINA GREGOR TARRANT COUNTY, TEXAS CAUSE NO. D0181941 MARGARITA TORRES, ETAL. IN THE DISTRICT COURT VS. 136th JUDICIAL DISTRICT AMERICAN HOME ASSURANCE CO., I GALLAGHER BASSED SERVICES, INC. JEFFERSON COUNTY, TEXAS CAUSE NO. 2007-25607 MARIA ESPARZA IN THE DISTRICT COURT .I VS. '127th JUDiCIAL DISTRICT INSURANCE CO. OF THE STATE OF ' PA, GALLAGHER BASSETT SERVICES, INC., & APRIL POWELL HARRIS COUNTY, TEXAS CAUSE NO. 2005-38843 TONI JENKINS IN THE DISTRICT COURT VS. 295th JUDICIAL DISTRICT INSURANCE CO. OF THE STATE OF I PA, GALLAGHER BASSETT SERVICES, INC., & BELINDA YBARRA HARRIS COUNTY, TEXAS CAUSE NO. 2007-14600 CARL CHAMBERS IN THE DISTRICT COURT -I VS. ss" JUDICIAL DISTRICT INSURANCE CO. OF THE STATE OF I PA, GALLAGHER BASSED SERVICES, INC. HARRIS COUNTY, TEXAS CAUSE NO. 2006-78355 DONNA HAMMOND IN THE DISTRICT COURT VS. 15ih JUDICIAL DISTRICT INSURANCE CO. OF THE STATE OF ' PA, GALLAGHER BASSED - SERVICES, INC., & MARIE CASE HARRIS COUNTY, TEXAS ; UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS : SAN ANTONIO DIVISION YOLANDA LOZANO, Plaintiff, VS. CASE NO. SA06CA306-0G GALLAGHER BASSETT SERVICES, INC., ' Defendant. CAUSE NO. 2005-38843a ROSA SCHWARTZ IN THE DISTRICT COURT VS. 295th JUDICIAL DISTRICT INSURANCE CO. OF THE STATE OF I PA, GALLAGHER BASSETT SERVICES, INC. & BELINDA YBARRA I HARRIS COUNTY, TEXAS CAUSE NO. 2005-72953 SUE ANN STINSON IN THE DISTRICT COURT VS. 61ST JUDICIAL DISTRICT INSURANCE CO. OF THE STATE OF I PA, GALLAGHER BASSETT SERVICES, INC. & BElINQA YBARRA I HARRIS COUNTY, TEXAS CAUSE NO. 895696 ALlCE WALKER IN THE DISTRICT COURT VS. JUDICIAL DISTRICT GALLAGHER BASSED ' SERVICES, INC. HARRIS COUNTY, TEXAS CAUSE NO. 2009-11639 LISA HAMBRICK BAILEY IN THE DISTRICT COURT VS. 129th JUDICIAL DISTRICT ZURICH AMERICAN INSURANCE COMPANY;GALLAGHERBASSED SERVICES, INC. AND IDA WELCH HARRIS COUNTY, TEXAS CAUSE NO. 2009-81330-152 MARIA ALCALA § IN THE DISTRICT COURT § § Plaintiff § § § VS. § 152ND JUDICIAL DISTRICT § § ZURICH AMERICAN INSURANCE § COMPANY, GALLAGHER BASSED § SERVICES, INC., and JUANITA MIXON § § Defendant § HARRIS COUNTY, TEXAS CAUSE NO. 2009-56177-157 EDWENA JUNE CROOKS 157TH JUDICIAL DISTRICT Plaintiff VS. HARRIS COUNTY, TEXAS AMERICAN HOME ASSURANCE § COMPANY, GALLAGHER BASSETI § SERVICES, INC. AND KAREN SMITH I Defendant CAUSE NO. 2010-13779 JACK WEBB IN THE DISTRICT COURT vs. 295th JUDICIAL DISTRICT AMERICAN HOME ASSURANCE COMPANY; GALLAGHER BASSETT SERVICES, INC.-AND MARIE CASE HARRIS COUNTY, TEXAS CAUSE NO. 2009-29691 LAZARO RINCON and IN THE DISTRICT COURT ALMA DE CANTU VS. 16Sth JUDICIAL DISTRICT INDEMNITY INSURANCE COMPANY , OF NORTH AMERICA, GALLAGHER BASSETT SERVICES, INC. AND PAMELA HALSEY HARRIS COUNTY, TEXAS CAUSE NO. C-129-308 TEEODOROTEODORODURAN § INTHE DISTRICTOISTRICT COURT § VS. § § 244THJUDICIAL2447“ JUDICHAL DISTRICT NEW HAMPSHRE HAMPSHIREINSURANCE C0,, CO., § GALLAGHER BASSETT BASSEDSERVECES, SERVICES,iNC., INC., § VJRGJMAVIRGINIAORTEZ, ORTIZ,AND ELKHORN ¢03€0)¥0:>£0IG03f-0’)£05G03§ HOLSINGS.HOLDINGS, INC.ENC. § ECTOR COUNTY, TEXAS CAUSE NO. A-09-0228-CV-AA—09-022B~C\/«A BOBBY JACK"BJ"JACK-"Bf RUSSELL § IN THE DISTRICTDZSTRICT COURT § VS.vs. § §3 3636*“THJUDICIALJUEHCIAL DISTRICT THE INSURANCENSURANCE COMPANYCOMP-’fANY OFOF‘ § THE STATEOF PENNSYLVANIA,PENNSYLVANEA. § GALLAGHER BASSEDBASSETT SERVICES, 3§ INC.,:NC., AND DEBORA FIREBAUGH § ARANSASCOUNTY, TEXAS CAUSENO. 09-02293O9-02293 GERMAN HERNANDEZ § INN THE DISTRICTDESTRICT COURT § PLAINTIFF § § vs.VS. § TH § 9595*“ JUDICIALJUDICEAL DESTRICT DISTRICT § AMERICANCASUALTY COMPANY § OF READING PENNSYLVANIA; § ALICE WEST;GALLAGHER § BASSETTBASSEDSERVICES, INC.ENC. 2§ § DALLASCOUNTY, TEXAS EJEFENDANTSDEFENDANTS § Appendix 5 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § w. § OF HAYS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETT § SERVICES, INC.; AND CHERYL § VERGE § 274th JUDICIAL DISTRICT DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTIONS TO FLORENCE BAKER AFFIDAVIT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, EVEREST NATIONAL INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., and CHERYL VERGE, Defendants herein, and file their Response to Plaintiff's Objections to Florence Baker Affidavit, and for same would show unto the Court as follows: I. Plaintiffs' assertion that Ms. Baker's affidavit should be stricken is misplaced. While Plaintiffs attempt to criticize Ms. Baker's affidavit as being similar to other affidavits, Plaintiffs fail to mention that the discovery served by the Plaintiffs in the other cases was identical to the discovery served in the case at bar. If Defendants had filed an affidavit setting forth different grounds for objecting to the discovery, Plaintiffs would likely have argued that the Defendants are now taking inconsistent positions.' Plaintiffs 1 Plaintiffs' footnote about inclusion of personnel file information is also misleading as the original Motion to Compel filed by Plaintiffs did not specify what discovery responses they were seeking to compel. Plaintiffs had served discovery on the personnel file. Thus, it was appropriate for Ms. Baker to address RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 1 cite no authority to hold that an affidavit responding to identical discovery requests must be worded differently. Furthermore, trial court rulings in other cases has no relevance or bearing on the case at bar. The trial court should consider the discovery requests and the affidavits submitted in this case on their own merits instead of trying to interpret what other Judges might have been thinking when ruling on discovery in completely unrelated matters." Additionally, the prior rulings submitted by the Plaintiffs are distinguishable because they all occurred prior to the Texas Supreme Court decision in Texas Mut. Ins. Co. v. Ruttiger, No. 08-0751, 2012 WL 2361697 (Tex. June 22, 2012). Most significantly, the Texas Supreme Court has now ruled that the duty of good faith and fair dealing as well as Insurance Code and DTPA claims based on unfair claims settlement practices are no longer viable causes of action. II. THE AFFIDAVIT FILED BY THE DEFENDANTS IS BASED ON PERSONAL KNOWLEDGE AND IS PROPER EVIDENCE BEFORE THE COURT An affidavit show that it is based on personal knowledge. Humphreys v. Caldwell,888 S.W.2d 469, 470 (Tex. 1994). The mere recitation that the affidavit is based on personal knowledge is only inadequate if the affidavit does not positively show a basis for such knowledge. Priesmeyer v. Pacific Sw. Bank, 917 S.W.2d 937, 939 (Tex. App.-Austin 1996, no writ). In the case at bar, Ms. Baker's Affidavit unequivocally states that it is based on personal knowledge, it states how the Affiant that topic in her affidavit. 2 The Judge in the Menjivar matter later issued a new order and ruled that the attorney client communications are protected from disclosure. See attached Exhibit A. Furthermore, the order attached to Plaintiffs' Objection as Exhibit E was not an order on a Motion to Compel and did not address any objections to any affidavit. RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 2 gained that personal knowledge relative to the case, and it states the position or job title of the Affiant sufficient to apprise the reader as to how the Affiant acquired that personal knowledge. In Ms. Baker's Affidavit, she states that she is familiar with Joseph Ruiz' claim for workers' compensation benefits because she was the supervisor of the handling adjuster on his workers' compensation claim. Certainly the supervisor of the handling adjuster on the workers' compensation claim has personal knowledge of the underlying workers' compensation claim and the attorney-client privileged communications which are an issue in this lawsuit. She identifies the dates that certain events occurred and identified the law firm which represented the Carrier in the administrative claim. It cannot be said that such facts are "conclusory" or that as a supervisor on the claim that she would be unaware of such facts. Accordingly, it satisfies the requirements of the cases cited above, and therefore the Plaintiff's objections should be overruled. III. THE CASE LAW CITED BY PLAINTIFF IS INAPPLICABLE The Plaintiffs mainly rely on two cases as support for their contention that the Affidavit submitted by the Defendants was defective, of no probative value, and lacks foundation. See Valenzuela v. State and County Mutual Fire Ins. Co., 317 S.W.3d 550, 554 (Tex. App. - Houston [14th Dist.] 2010), and Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371 (Tex. App. - Dallas 2011, no pet. h.). Both cases, however, were appeals of the trial court's granting of summary judgment. When affidavits are attached to summary judgment motions, the standard is a specific one. Valenzuela, 317 S.W.3d at 552. However, this is not a summary judgment proceeding, this is a RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT- PAGE 3 Response to Plaintiffs' Motion to Compel. Accordingly, the standard for the Affidavit in the cases cited by the Plaintiffs are inapplicable to the case at bar. However, even the two cases cited by the Plaintiffs provide support for the Defendants' position that the affidavit of Ms. Baker is proper and reliable support for their Response to Plaintiffs' Motion to Compel. In Stone, for example, the Court stated that "[a]n affiant's position or job responsibilities can qualify the affiant to have personal knowledge of facts and establish how the affiant learned of the facts. Stone, 334 S.W.3d at 375; citing, Valenzuela, 317 S.W.3d at 553 (affidavits demonstrating personal knowledge often state affiant's knowledge through affiant's position and specifically described job duties); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 698 (Tex. App. - Dallas 2008, no pet.)(as Scout Executive and CEO of organization, he had knowledge concerning its operation and organization sufficient to demonstrate the manner in which he became familiar with the facts at issue); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 176 (Tex. App. - Dallas 2000, pet. denied)(general manager of a club was knowledgeable of club's policies and bylaws). Moreover, in Valenzuela, the Court cited approvingly Requipco, Inc. v. Am- Tex Tank & Equip., Inc., 738 S.W.2d 299, 300 (Tex. App. - Houston [14th Dist.] 1987, writ ref'd n.r.e.), and stated that: "We have previously held an affidavit simply stating the affiant's job title is sufficient to show personal knowledge." Requipco, 739 S.W.2d at 300. In the affidavit at issue in Requipco, the Affiant state: "I ... am President of Am- Tex Tank & Equipment, Inc.... and have full authority to make this Affidavit. I have personal knowledge of a" the facts stated herein concerning the Defendant, Requipco, Inc., as set forth and contained in Plaintiff's Original Petition." Id. Although the RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 4 appellant in Requipco complained that the Affiant did not show how he gained his personal knowledge, the Houston Court of Appeals decided that he did have personal knowledge. Id. In Requipco, the case concerned a suit on a sworn account, and the Court noted that a company's president or other officer logically would have knowledge of current debts owed to the company. Valenzuela, 317 S.W.3d at 554, n.3. Similarly here, the Affiant is a company employee, and as such she is knowledgeable and familiar with the Plaintiffs' case. Indeed, Ms. Baker was the supervisor of the handling adjuster. Accordingly, the Affiant is knowledgeable and is qualified to make the statements in her affidavit. Moreover, as shown above, even the cases cited by the Plaintiffs, although factually dissimilar, provide certain support for the Defendants' contention that the affidavit is proper evidence in support of the Response to Plaintiffs' Motion to Compel. As a result, the Plaintiff's objections should be overruled. IV. AFFIDAVIT DOES NOT LACK FOUNDATION Plaintiffs appear to assert that only an attorney is capable of filing an affidavit in support of a Response to a Motion to Compel Discovery. There is no such authority which supports such argument. Furthermore, much of which Plaintiffs complain is not actually a legal conclusion. Ms. Baker's affidavit clearly set forth the foundation for her testimony - namely that she was the supervisor of the adjuster handling this claim. Her affidavit also specifically stated that she was familiar with Mr. Ruiz's workers' compensation claim file and the manner in which files were maintained. These facts are sufficient to show the foundation for her affidavit. RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT- PAGE 5 Plaintiffs cite no authority to hold that an affidavit must be stricken if it does not identify her employer, who authorized her to act as the corporate representative, or where she resides. Contrary to Plaintiffs' assertion, her affidavit does identify that she reviewed the discovery submitted to Everest National Insurance Company and Gallagher Bassett Services, Inc. by the Plaintiffs. Additionally, Plaintiffs cite no authority holding that statements about privilege, relevance, and anticipation of litigation are legal conclusions. For example, one does not need to be a licensed attorney to give the opinion that she believed that communications with her attorney are privileged and would not be disclosed. Plaintiffs cite no authority holding that an individual is incapable of asserting attorney-client privilege. Ms. Baker's affidavit states that she believed communications with their attorney are protected by the attorney-client privilege. This does not amount to an impermissible legal conclusion. Only the client can waive the attorney-client privilege, and if privileged documents are inadvertently produced, the documents are to be returned upon request. Ms. Baker clearly stated that they never waived nor intended to waive the attorney-client privilege with regard to any communications with their attorney, and that they remained under the belief that all communications with their attorney were privileged communications protected by the attorney-client privilege. Such statements are not legal conclusions - they are simply testifying to their belief and understanding. Nor does one need to be a licensed attorney to provide specific dates that certain events occurred and to give her belief, based on personal knowledge as the supervisor on the claim, that litigation was anticipated. Plaintiffs cite no authority to hold that RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 6 anticipation of litigation is a legal conclusion or that a Court can reject an affidavit based on personal knowledge as to their belief when litigation was anticipated. Further, Ms. Baker's affidavit stated that she was familiar with both the individual file and the manner in which all files were maintained. Based on her actual involvement in the file as a supervisor and based on her knowledge of how files are maintained, she did provide foundation for her assertion that Everest National Insurance Company did not provide certain documents to Gallagher Bassett Services, Inc. and that the handling adjuster did not have a copy of the insurance policy issued to the employer of Mr. Ruiz. Ms. Baker's affidavit contains specifics as to her position and the basis of her knowledge. The affidavit is based on her personal knowledge. Plaintiffs have cited no relevant authority to support their objections to Ms. Baker's affidavit. Therefore, Defendants request that Plaintiffs' Objections to Florence Baker Affidavit be overruled. To the extent, the Court considers addressing the attorney-client privileged communications, Defendants request that the documents be submitted for an in camera review prior to any order overruling the applicability of the privileges. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court deny Plaintiff's Objections to Florence Baker Affidavit, and for such other and further relief, both at law and in equity, to which they may show themselves justly entitled and for which they will ever pray. RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 7 Respectfully submitted, AYERS & AYERS BY: r:;;e.AA-~~ De ne C. Ayers State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817-267-9009 telephone 817-318-0663 facsimile ATTORNEY FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the above and foregoing document has been sent to Plaintiff's counsel of record, via facsimile, on this the 12th day of October, 2012. RESPONSETO OBJECTIONS TO FLORENCE BAKER'S AFFIDAVIT-PAGE 8 -f-1I CAUSE NO. 2010 - 30365 (fibi . LEYD! MENJiVAR § IN THE DISTRICT COURT OF ,/ § PLAINTIFF § § "c.::.v •••. § § INDEMNITY INSUR.ANCE COMPANY § 55th JUDICiAL DISTRICT OF NORTH AMERICA, GALLAGI fER § BASSETI' SERVICES, INC. AND § TERESA BLAKE § § DEFENDA.NTS § HARRIS COlTNTY. TEXl\'S ORDER After performing an in camera inspection of each of the documents submitted by the Defendants (as previously ordered on November 8, 20 IO), the Court finds that the documents submitted can be withheld from discovery based upon a claim of attorney- br \fghmtarr dise1aStif&; .s..o. 14:is tftefe~ OP!J)ERF.Q. !Rit ijjR:F~ga6ted eOf3ies of the :;l:d~fHil:t~6doe!:!f},cltts shaH be "reduced to eotlftsei for ifie Pie.ieti[f """ithin tcn (to) dn) S of the date of this or or. rr IS SO ORDERED. z:. -:r&.M\AII#'1, ~, u SIGNED this _It dav0' of~,ot".eUiBeF, JfJIG. FI LED Leren JaCKson District Cieri<. NOV ! 3 2010 P'tt:ltiti~~, Sr((" SAt dMrF,Jt.. dge. 551n District Court Harris County, Texas ~------~=------••••~~Deputy IfJ EXHI B IT ••~ ,g~ i,ji Appendix 6 October 29, 2012 letter to Judge Henry only – a Motion is being filed with the Court of Appeals requesting that it release to the Supreme Court the attachments of documents reviewed in camera which were submitted separately in a sealed envelope. AYERS & AYERS Attorneys and Counselors Ayers Plaza 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 (817)267 -9009 (817)318-0663 (facsimile) October 29, 2012 Via Federal Express Hon. Bill Henry Hays County Government Center 712 Stagecoach Trail, Third Floor San Marcos, Texas 78666 RE: Cause No. 12-1593 Joseph Ruiz, et ux v. Everest National Insurance Company, et al Dear Judge Henry: In follow-up to the October 16, 2012 hearing on Plaintiff's Motion to Compel in the above-referenced matter, enclosed please find the documents for in camera inspection in the above-referenced matter. The following sets of documents are produced for your in camera review: A. Privileged Communications between Defendants and their attorney, Robin Lowenkron at Smith & Carr; B. Claim notes which were previously produced in a redacted form which Defendants maintain are proprietary and not relevant; C. Claim notes withheld based on anticipation of litigation and relevance as they were created after resolution of the dispute which forms the basis of this lawsuit; D. Insurance policy issued by Everest National Insurance Company ("Everest") to S&K Technologies; E. Gallagher's Corporate Best Practices and Adjuster's Manual; and F. Contract between Everest and its third party administrator, Gallagher Bassett Services, Inc. ("Gallagher"). A. Privileged Communications As previously advised, the documents attached as Exhibit A reflect attorney-client communications between my clients and their attorneys, Robin Lowenkron at Smith & Carr. My clients maintain that any such communications and documents are privileged attorney-client communications which are not subject to disclosure in discovery. Florence Baker's affidavit clearly makes factual statements, not legal conclusions, that Robin Lowenkron was Defendants' attorney and that Defendants believed communications with their attorney would remain privileged. Ms. Baker is competent to make such statements as she was the supervisor reviewing this claim. Accordingly, Ms. Baker's affidavit should not be stricken with regard to such factual statements. The documents attached contain the redacted version immediately followed by the unredacted version for the Court's review. As you can see from the attached documents, the communications were only between Ms. Lowenkron and the Defendants. All of these communications are contained in the claim notes, and the affidavits of Florence Baker and Adele Vincent with the Plaintiff's employer confirm that the employer did not have access to view the claim notes. As the attorney-client privilege is one of the most sacrosanct of all privileges and there is no evidence of waiver of the privilege, Defendants urge the Court to uphold this privilege and hold that the documents in Exhibit A are privileged and immune from production to Plaintiff. For the Court's ease of reference, I have attached both a redacted copy of the claim note over which privilege is asserted followed by an unredacted copy. The documents contained in Exhibit A reflect all privileged communications as set forth in the Privilege Log, including claim note entries made after the administrative decision. Defendants maintain that the claim note entries made after the administrative decision also have no relevance as Plaintiff is suing over the dispute of his claim, which was resolved by the administrative decision. To aid the Court in ruling on the Defendants' assertion of privilege over these notes, the proposed order lists each entry the Defendants assert the attorney-client privilege over as previously set forth in their Privilege Log. I have enclosed a copy of this proposed order to Plaintiff's counsel. B. Redacted Claim Notes based on Relevance and Proprietary The documents contained in Exhibit B have been previously produced in a redacted form. The redacted information primarily relates to reserving information as well as information relative to the insurance policy. As discussed during the hearing, such information is proprietary and no longer relevant in a workers' compensation context due to the decision in Texas Mut. Ins. Co. v. Ruttiger. No. 08-0751, 2012 WL 2361697 (Tex. June 22, 2012). The Ruttiger decision eiiminated the duty of good faith and fair dealing and Insurance Code Unfair Claims Settlement Practices claims as well as any DTPA premised on Unfair Claims Settlement Practices. In Ruttiger, the Texas Supreme Court held the only possible Insurance Code cause of action is for misrepresentation of policy terms - not a denial of whether an injury occurred in the course and scope of employment. As the redacted information, such as a tax id number or the employer's deductible has no relevance to a misrepresentation of policy terms, such information is not relevant. Furthermore, during the hearing, the Plaintiff even agreed to redaction of premium information from the insurance policy. Thus, redaction of information such as tax id number and deductible information should be treated similarly. Following Ruttiger, one case has addressed permissible discovery in a post-Ruttiger world. In re American Zurich Ins. Co., No. 01-11-00816-CV, 2012 WL 2923200 (Tex. App. - Houston [1st Dist.] July 12,2012). In that matter, the trial court had ordered production of documents containing, in part, reserve information and information regarding other claims. The Court of Appeals reversed the trial court decision based on Ruttiger. The Court held that the requested documentation is not reasonably calculated to lead to admissible evidence about the scope of coverage under the Insurance Code and the DTPA. Furthermore, with regard to reserve information, the decisions of In re American Home Assurance Co., 88 S.W.3d 370 (Tex. App. - Texarkana 2002, orig. proceeding) and Independent Petrochemical Corp. v. Aetna Cas. & Sur. Co., 117 F.R.D. 283 (D.D.C. 1986), held that production of information about setting of reserves is improper. In Independent Petrochemical Corp. v. Aetna Cas. & Sur. Co., the Court refused to order production of reserves holding that such information is "of very tenuous relevance, if any relevance at all." 117 F.R.D. at 288. The Court adopted the insurer's argument that "a reserve essentially reflects an assessment of the value of a claim taking into consideration the likelihood of an adverse judgment and that such estimates of potential liability do not normally entail an evaluation of coverage based upon a thorough factual and legal consideration when routinely made as a claim analysis." Id. Plaintiffs attempt to distinguish the In re American Home decision by asserting that it involved a third party as opposed to a first party. That assertion is incorrect - American Home was a bad faith suit filed by an insured claiming that the insurer failed to indemnify it for claims made against the insured by third parties. The Tenth Circuit has held that a "reserve calculation is merely an amount [an insurer] set aside to cover potential future liabilities." Signature Development Cas. V. Royal Ins. Co. of America, 230 F.3d 1215, 1224 (10th Cir. 2000). Reserves are simply a budget or rough forecast of how much money an insurer believes a claim may cost at any given time. Reserves may be adjusted up or down throughout the handling of a claim. For example, if an injured worker undergoes surgery, the reserves would likely have to be adjusted upward to cover the cost of surgery and additional lost time, whereas if an injured worker returns to work and stops medical care after a few weeks, reserves could be adjusted downward. Reserves are not a guarantee of payment, nor can a carrier refuse to pay benefits because reserves are too low. An injured worker is entitled to income and medical benefits pursuant to the Texas Workers' Compensation Act, and the amount spent on the claim is governed by the Act, not reserves. Reserves are simply a tool to budget how much money is anticipated to be spent on the file. Reserve information is an internal tool, and reserves are not shared with injured workers. Based on the recent Texas Supreme Court decision Texas Mut. Ins. Co. v. Ruttiger, No. 08-0751,2012 WL 2361697 (Tex. June 22,2012), the duty of good faith and fair dealing as well as Insurance Code and DTPA claims based on unfair claims settlement practices and failure to properly investigate are no longer viable causes of action. The only remaining causes of action pled by the Claimant are misrepresentation of policy terms (Texas Insurance Code Section 541.061) and unconscionable conduct under the DTPA. The Texas Supreme Court in the Ruttiger decision specifically stated that denial of a claim based on whether there was an injury in the course and scope of employment is not a misrepresentation of a policy term. Misrepresentation of a policy term would go to a dispute over coverage, such as coverage in Texas, policy period or whether the employee was an employee of the Named Insured. Plaintiffs have not shown there is a misrepresentation of a policy term in this case to justify turning over proprietary reserve information. As such, the request for reserve information is simply a fishing expedition. Plaintiffs cannot show relevance for the production of reserve information, nor can they show that reserve information will lead to the discovery of admissible evidence. The setting of reserves is an internal process which is not communicated to the injured worker. Therefore, reserve information would not lead to discovery of admissible evidence regarding misrepresentation of a policy term. Reserves are neither policy terms nor are they communicated to the injured worker so there can be no misrepresentation. Furthermore, there is no allegation that Mr. Ruiz failed to receive workers' compensation benefits once the claim was found to be compensable. As he received the benefits he was entitled to receive, there is no allegation that setting reserves too high or too low prevented payment of workers' compensation benefits. Thus, reserve information would not lead to the discovery of admissible evidence on the unconscionability cause of action as setting of reserves would not take advantage of Mr. Ruiz to a grossly unfair degree when he received all workers' compensation benefits he was entitled to receive. If he received all benefits he was entitled to receive, it would not matter how much was set in reserves at any given time. The cases cited by Plaintiffs in their Motion to Compel do not involve claims against a licensed workers' compensation carrier. Based on the Ruttiger ruling, workers compensation bad faith is treated differently from other first party bad faith litigation which still has the duty of good faith and fair dealing and causes of action for failure to timely settle a claim and failure to investigate a claim. Swicegood v. Medical Protective Co., 2004 WL 1698285 (N.D. Tex. 2004) involved a question of whether a third party's settlement offer should have been accepted in a Stower's lawsuit. The Swicegood plaintiff argued that reserves were relevant to show that the insurer failed to settle, thus committing unfair claims settlement practices in violation of Texas Insurance Code Section 541.060. However, Ruttiger ruled that Insurance Code section no longer applies in the workers' compensation context. Thus, reliance on Swicegood in the workers' compensation context is misplaced. Business Staffing, Inc. v. Jackson Hot Oil Service, 2012 WL 1864345 (Tex. App. - EI Paso May 23, 2012) did not contain any discussion on the appropriateness of discovery of reserves. There simply is passing mention that reserves were offered into evidence. There is no indication that the defendant in Business Staffing objected to production of reserve information. Additionally, Business Staffing did not even involve a licensed insurance carrier, but rather was a suit over misrepresentations that workers' compensation insurance would be purchased when, in fact, such insurance was never placed. In the context of a workers' compensation claim, an insurer cannot refuse to pay income or medical benefits simply because a reserve is too low. Likewise, an injured worker is not entitled to payment of all money in reserves simply because that amount has been reserved. All workers' compensation benefits are paid pursuant to the Texas Workers' Compensation Act, and that figure could fluctuate throughout the course of a claim. Accordingly, Plaintiffs' request for reserve information is overbroad, not relevant, and not likely to lead to admissible evidence. Defendants request their objections be sustained. I have also attached the proposed order with regard to the claim notes contained in Exhibits Band C. This proposed order will allow the Court to mark which exhibits should be produced or whether the claim notes can be withheld. I have provided Plaintiff's counsel with a copy of this proposed order as well. C. Claim Notes withheld based on Anticipation of Litigation and Relevance as they were Created after Resolution of the Dispute which forms the Basis of this Lawsuit Plaintiffs have filed suit against Defendants alleging that Defendants improperly denied Mr. Ruiz' workers' compensation claim. The Defendants have already produced all claim notes up through receipt of the Contested Case Hearing decision, which administratively resolved the dispute. Therefore, all claim notes after receipt of the administrative decision have no relevance to Plaintiff's workers' compensation claims as the dispute was resolved by the decision. Exhibit C contains all claim notes generated after the dispute was resolved by the administrative body. Plaintiffs have failed to show how such documents could be relevant given the lawsuit is over the denial of the claim which was resolved by the Contested Case Hearing, and all claim notes through that administrative decision have been produced with the exception of the notes contained in Exhibits A and B. As discussed in the preceding section, Defendants maintain that reserve information is not subject to production as reserving has no relevance to Plaintiff's claims. Therefore, Defendants continue to assert their objections to any claim note contained in Exhibit C with the subject line of "Reserving" and request that the Court hold such claim notes are not discoverable. Should the Court agree that all claim notes after receipt of the administrative decision resolving the dispute are not relevant, none of the documents in Exhibit C should be produced. Finally, it should be noted that Plaintiff's filed their lawsuit on March 9, 2012. Therefore, litigation was clearly anticipated as of that date, and any notes after March 9, 2012 should not be produced. As such, I have not attached any notes after the date suit was filed; however, should the Court wish to also review those documents, please advise and I will be happy to provide such additional documents for an in camera review. D. Insurance Policy The insurance policy has no relevance to the case at bar because Plaintiff has not pled that there was any actual misrepresentation of any policy term, but rather the misrepresentation claimed in Plaintiff's live pleading is for the dispute over whether Plaintiff was injured in the course and scope of his employment. There is no dispute over a term of "coverage" such as the name of the insured, policy period or whether the policy provides coverage for Texas workers' compensation claims. The only dispute was over whether the claimed injury occurred in the course and scope of employment, which is governed by the Texas Workers' Compensation Act. As you can see from the attached insurance policy, the policy itself does not include exclusions or other provisions that impact the handling of a Texas workers' compensation claim. The insurance policy does not even describe what benefits are to be paid for workers' compensation claims because the handling of a Texas workers' compensation claim is directed by the pervasive Texas Workers' Compensation Act. In Ruttiger, the Court held as follows: The 1989 amendments and the current Act provide significantly more meaningful proceedings at the administrative agency level so as to reduce the number and cost of judicial trials, speed up the time for the entire dispute resolution process, and facilitate interlocutory payment of benefits pending final resolution of disputes. Citations omitted. To achieve these purposes the amended Act contains detailed procedures and penalties for failures of the various interested parties to comply with statutory and regulatory requirements. Ruttiger, 2012 WL 2361697 at *7. While the Defendants object to production of the insurance policy for the reasons outlined herein, under the Ruttiger decision, the only possibly relevant document is the first page of the policy, the Information Page. The Information Page sets forth the name of the insured and the dates of the policy period. However, even production of that page is not relevant as there is no allegation in Plaintiff's pleadings relative to the actuai policy terms. Furthermore, the insurance policy has no relevance in that it also references other States workers' compensation laws. Regardless, in the event the Court does order production of the entire insurance policy or the Information Page, Plaintiff agreed to allow redaction of premium information and to permit production under the Protective Order. E. Policies and Procedures The Texas Supreme Court decision in Ruttiger specifically invalidated the cause of action under the Texas Insurance Code for violation of Section 542.003 relative to the development of policies and procedures. The Court held that such a cause of action is no longer necessary "in light of the specific substantive and procedural requirements build into the Act and the detrimental effects on carriers flowing from penalties that can be imposed for failing to comply with those requirements. Ruttiger, 2012 WL 2361697 at *13. As discussed in the preceding sections, the handling of a Texas workers' compensation claim is governed by the Texas Workers' Compensation Act - not any internal policies or procedures. There is no longer a private cause of action for violation of an internal policy or procedure. Id. Therefore, the documents attached as Exhibit F are not relevant or discoverable. However, in the event the Court order production, Defendants request the documents be permitted to be produced under the Protective Order. F. Contract between Everest and Gallagher Similarly to the internal policies and procedures, Plaintiff has no right of recovery or private cause of action under the contract between Everest and Gallagher. Everest and Gallagher treat this document as a proprietary document. Information such as payment for handling the claims will not lead to admissible evidence. Additionally, the contract is a global contract and not specific as to Plaintiff's employer, workers' compensation, or even Texas. In that Gallagher acts as an agent of Everest, the internal contractual relationship setting forth their nationwide business relationship over all lines of coverage has no relevance and will not lead to admissible evidence. Therefore, such contract should not be produced. In the event the Court orders production, Defendants request that such production be permitted under the Protective Order and to allow redaction of information regarding pricing. In addition to the separate orders with regard to the documents contained in Exhibits A, Band C, I am also enclosing a proposed order with regard to the documents attaches as Exhibits D, E and F. I am providing Plaintiff's counsel with a copy of said order as well. In the event that you decide to order production of any of the attached documents, I request that you delay ordering the actual production to afford my clients sufficient time to seek additional relief prior to the production of the documents. Thank you for your consideration. f4>urs tr~}y, \ /' l /. _'/f/1;':"1/.i.ll ,Y- b!ilJ"'-./ L \/v l.....- I I l/[Julie B. Tebbets JBT:hm Attachments Via Facsimile 512-320-8906 (correspondence, Divider pages, and proposed orders only) cc: Ethan Shaw Joe Longley Moore Landrey, LLP 1609 Shoal Creek Blvd. Suite 100 Austin, Texas 78701 Appendix 7 LAW OFFICE CAUSE NO. 12-1593 F!l,t.. ED .. ~'J JOSEPH RUIZ M'D § A.MA"N'DA RUIZ § PLAlNTIFFS § § VS. § § E\lEREST NATIONAL INS\JRAl.'1CE § CO~ANY;GALLAGr~R § BASSETT SERVlCES~ INC,; § AND CHERYL VERGE § DEFENDANTS § 274"'1 JUDICIAL DISTRICT On October 16~2012, prior to the hearing on PlaintiffS) Motion to Compel, Court considered Plaintiffs' Objections to '!he Affidavit of Florence Baker. After considering such Objections and the arguments of counsel, the Court finds that the Affidavit of Florence Baker is without proper foundation; ccntains unsupported co N therefore of no probative value in opposition to PlaintiffS' Motion to Compel. \/,) 0....(.:;J It is, therefore. ORDERED that the Affidavit of Florence Baker is STRIKEN and shall not be considered for any purpose. of Sigr..oo this /,_ day g_~ > 2012. Appendix 8 11/01/2012 THU 14:45 FAX ~001/003 / CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DIS1RICT COURT OF AMANDARUIZ § PLAINTIFFS § § VS. § HAYS COUNTY, TEXAS § EVEREST NATIONAL INSlJRANCE § COMPANY; GALLAGHER § BASSETT SERVICES, INC.; § AND CHERYL VERGE § DEFENDANTS § 274th JUDICIAL DISTRICT ORDER On October 16, 2012 came on for hearing the Plaintiffs' Motion to Compel discovery and after considering such Motion and hearing the arguments of counsel and reviewing the pleadings and the Protective Order and Order Striking the Affidavit of Florence Baker, previously entered, the Court is of the opinion that Plaintiffs' Motion to Compel should be granted as follows: It is ORDERED that: 1. The Court sustains Plaintiffs' objections to the Privilege Logs tendered to the Court by Defendants. Defendants' Privilege Logs are deficient in that they do not enable other parties, including the Court, to assess the applicability of any specifically claimed privilege to any specific document tendered for in camera review. The documents themselves do not sustain the applicability of any privilege, nor can they sustain a finding of the absence of waiver by voluntary disclosure. Further, the Defendants' have failed to sufficiently assert a specific privilege for each item withheld. Accordingly, Defendants' claims of Privilege are denied and ail documents submitted for 11/01/2012 THU 14:45 FAX Idl002/003 in camera review are Ordered produced at the time and place ordered below. 2. Defendants' objections and claims of privilege made in response to RFP's 1, 2, and 15 (claim file, claim notes and investigative reports/communications) are OVERRULED and Defendants are ORDERED to produce all documents withheld at the time and piace ordered below. 3. Defendants' objections and claims of privilege made in response to RFP's 10, 11, 12, 20, 21; 30; and Interrogatory Responses 4 and 5 (claim reserves) are OVERRULED and Defendants are ORDERED to answer Interrogatories 4 and 5 within seven (7) days of the entry of this Order and further ORDERED to produce all documents withheld at the time and place ordered below. 4. Defendants' objections and claims of privilege made in response to RFP's 3; 4; 5; 21; and 30 ("Best Practices"; Claims Manuals; Guidelines and Directions for Claims Handling) are OVERRULED and Defendants' are ORDERED to produce all documents withheld at the time and the place set forth below. Defendaat Gallagher Bassett's o'bjeGtions and claims of privilege made in response to RFP 6 00 Gallagher Bassett (Thb d Pal ty Administrator "'f'PA" agreement) ate OVE!UUJcIID and Gallagfier Bassett IS ORDERED to produce its 'FPA A.greemempertainingto Everest claims at the time and the plaee set forth b~- 6. Defendant Everest National Insurance Company's objections and claims of privilege made in response to RFP 6 to Everest (We Insurance Policy) are OVERRULED and Everest is ORDERED to produce the insurance policy (with redactions for premiums paid) at the time and the place set forth below. ------_. -_.._--_ .._ _-.--_ _..-. __ __ . 11./01/2012 THU 14: 46 FAX Id]003/003 7:- Defendants' objections and claims of pri vHege made in response to PlaUltitfs' R.¥P Ne. 14 (otber Texas workers' compensatton bad~faith hmsnns siltte January 1, 200S) a;:e OVERRULED and Defendants' are ORDERED to produce all upaate6 Litigatiun Log for each Defendant at the time and place set forts ~(vN. 8. Defendants' objections made in response to RFP 13 (attorneys' fees) are SUSTAINED at this time and Attorney's Fees will not be ordered produced unless Defendants' seek such fees. These Defendants are ORDERED to produce the documents as set forth above no /¥+4 later than 5:00 p.m. on the se"v'offili (1) business day after entry of this Order at 1609 Shoal Creek Blvd., Suite 100, Austin, Texas. IT IS SO ORDERED. Signed this /' day of ,dIbv~ 4....,. ,2012. Appendix 9 1 1 REPORTER'S RECORD VOLUME 1 OF 1 2 CAUSE NO. 12-1593 3 JOSEPH RUIZ AND AMANDA RUIZ IN THE DISTRICT COURT 4 VS. 428TH JUDICIAL DISTRICT 5 EVEREST NATIONAL INSURANCE COMPANY, GALLAGHER, BASSETT 6 SERVICES, INC., AND CHERYL VERGE HAYS COUNTY, TEXAS 7 8 MISCELLANEOUS MOTIONS HEARING 9 OCTOBER 16, 2012 10 11 On the 16th day of October, 2012, the 12 following proceedings came on to be heard in the above- 13 entitled and numbered cause before the Honorable Bill 14 Henry, judge presiding, held in San Marcos, Hays County, 15 Texas. 16 Proceedings reported by machine shorthand. 17 18 19 20 21 22 23 24 25 2 1 APPEARANCES 2 FOR THE PLAINTIFFS: Mr. Joe K. Longley 3 LAW OFFICES OF JOE K. LONGLEY 1609 Shoal Creek Blvd., Ste. 100 4 Austin, TX 78701-1063 Telephone: 512-477-4444 5 State Bar No. 12542000 6 Mr. Charles E. Soechting THE SOECHTING LAW FIRM 7 3331 Ranch Road 12, Ste. 107 San Marcos, TX 78666 8 Telephone: 512-396-2900 State Bar No. 18821300 9 FOR THE DEFENDANTS: 10 Ms. Julie Tebbets AYERS & AYERS 11 4205 Gateway Dr., Ste. 100 Colleyville, TX 76034 12 Telephone: 817-267-9009 State Bar No. 00793419 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 INDEX 2 MISCELLANEOUS MOTIONS HEARING 3 OCTOBER 16, 2012 PAGE VOL. Motion for Entry of Protective Order . 5 1 4 Court's Ruling . 7 1 5 Mot ion to Str ike . 7 1 6 Court's Ruling . 32 1 7 Motion to Compel . 32 1 8 Court's Ruling . 49 1 9 Adj ournment . 52 1 10 Court Reporter's Certificate . 53 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 (In open court) 2 THE COURT: At this we'll call Cause 3 No. 12-1593, styled Joseph Ruiz and Amanda Ruiz vs. 4 Everest National Insurance Company, Gallagher-Bassett, 5 et al. 6 Go ahead and make your announcements for 7 the record. 8 MR. LONGLEY: Joe Longley and Charles 9 Soechting on behalf of Mr. and Mrs. Ruiz, Your Honor, 10 the plaintiffs. 11 MS. TEBBETS: Julie Tebbets on behalf of 12 all the defendants. 13 Your Honor, if I may just briefly 14 interject. This matter was transferred from Travis 15 County. There was some confusion at my office with 16 regard to a motion for abatement. We had DTPA motion to 17 abate. Unfortunately, that's not yet set for hearing 18 today. I don't want this proceeding today to constitute 19 any type of waiver for my request for the statutory DTPA 20 abatement. 21 But I understand that Mr. Longley has 22 filed an objection to proceeding with the abatement 23 today. 24 MR. LONGLEY: I did, Your Honor, because I 25 only received about this time yesterday. And, of 5 1 course, the three-day rule, doesn't comply with the 2 rule. And this has been set for, gosh, almost a month. 3 THE COURT: We have before the court today 4 special exceptions, motion to compel, motion to strike? 5 MR. LONGLEY: Yes, Your Honor. And I'm 6 happy to announce that Ms. Tebbets and I have agreed on 7 special exceptions; that's not before the court. That's 8 been resolved. 9 And I think, first, we need to take up the 10 matter of our motion for entry of a protective order. 11 In the hearing you're going to hear today on the motion 12 to compel with regard to the documents, Ms. Tebbets has 13 indicated in her pleadings that she is willing to 14 produce some of the documents pursuant to a protective 15 order. 16 We have competing protective orders, which 17 we're seeking the court to enter. The one that I am 18 requesting the court to enter is the one that's used in 19 the Western District of Texas. And if the court would 20 note -- I'll give you a copy of it. 21 THE COURT: Also in line with Judge 22 Covington's order. 23 MR. LONGLEY: Yes. Judge Sparks and Judge 24 Yeakel use those in the Western District, 25 Austin Division. And you'll find the 14-day rule with 6 1 regard to objections, and I believe it's Paragraph 9. 2 That is so important that if the parties seeking to keep 3 the documents confidential does not make a motion within 4 14 days, then they are deemed to be released from the 5 protective order. 6 And with regard to Paragraph No. 11, 7 that's what in Travis County they call the Yelenosky 8 provision because you can a file response to summary 9 judgment without filing the documents if they're 10 confidential, and give the side that's filed the motion 11 for summary judgment seven days to decide whether or not 12 they want to continue the confidentiality of the 13 document. And if they do, then they have to file a Rule 14 76A motion, and then you can file the response as if 15 those documents were filed until the 76A motion is 16 resolved. 17 And this is the copy of what they use both 18 in the Western District, and with the Yelenosky 19 provision in Paragraph 11 that's used in Travis County. 20 We would ask that the court favorably consider that form 21 because it puts the burden of proof on the designating 22 party to keep them confidential if there is a dispute 23 that arises. And it gives the procedures by which they 24 resolve that dispute. 25 THE COURT: Ms. Tebbets, what's the 7 1 objection to the use of that order? 2 MS. TEBBETS: Honestly, I just prefer my 3 order that I have attached to my response, as well. I 4 do have some concerns about this, but I don't want to go 5 into them in great detail and waste the court's time 6 with that. 7 THE COURT: I'm going to go ahead and a 8 grant that. Part of the reasoning is that not only does 9 Judge Yeakel and Sparks use it, but Covington ordered 10 this form be used in this particular case, or perhaps an 11 adjoining case. So I will go ahead and follow the rule, 12 to be consistent. 13 MR. LONGLEY: Your Honor, I think that 14 will help us perhaps on some of the documentation 15 that Ms. Tebbets may be willing to produce. 16 Next on our list, Your Honor, is a plea -- 17 actually, it's objection to the affidavit that was filed 18 last week. And I think we provided the court with our 19 briefing on that, as well as our motion yesterday. I 20 don't know if the court's had the opportunity to look at 21 it. 22 THE COURT: I've perused it, but not in 23 detail. 24 MR. LONGLEY: Okay. Basically, Your 25 Honor, lour objection to the affidavit of Florence 8 1 Baker is two-fold. First of all, it's not made on 2 personal knowledge as shown in her affidavit. And, 3 secondly, it's basically nothing more than conclusions; 4 and more particularly, conclusions which she has not 5 shown herself competent to give. 6 This same affidavit is what I call a 7 roboaffidavit that's used consistently in these cases by 8 Gallagher-Bassett regardless of who the carrier may be. 9 Gallagher-Bassett is the third-party administrator that 10 handles these cases for a multitude of insurance 11 carriers. And they've filed a same affidavit in almost 12 every case we've seen and in every case we've had. 13 Ms. Tebbets defends these cases. 14 We're old friends, so to speak, in that we 15 have a lot of litigation against each other in this type 16 of litigation. Her principal client is Gallagher- 17 Bassett. 18 And what I've given the court is right 19 behind our objection you'll find Exhibits A, B, and C. 20 Band C are affidavits that have been filed in other 21 cases involving Gallagher-Bassett. Very similar, if not 22 almost identical to the affidavit before the court 23 here. And Judge Ramos in Houston struck it in defense 24 of our case, Judge Covington in Travis County struck it 25 in the Moreno case. And we're seeking for the court's 9 1 favorable consideration abstracting in this case based 2 upon the same basis as outlined in our opposition. 3 I can go through these paragraph-by- 4 paragraph very quickly, Your Honor, but I think the 5 court can see that these are not made upon personal 6 knowledge. Ms. Baker, in her affidavit, does not reveal 7 who her employer is; she does not identify who 8 authorized her to represent the corporate defendants; 9 she does not identify where she resides or even if she's 10 authorized by the corporate defendants to make the 11 statements that are made in the affidavit. That's 12 Paragraph 1. 13 Paragraph 2, she does not reveal what she 14 has reviewed in terms of any claims of privilege as to 15 the hundreds of documents that are been listed on the 16 very generalized, broad privileged language; does not 17 identify any specific privilege to a specific document. 18 So if the court would have to make an in-camera 19 inspection, the court would not be aided by her 20 affidavit, nor by the privileged log itself because 21 there's no specific facts that relate to any specific 22 document by this affidavit. She also does not document 23 as to how she acquired the knowledge that is the basis 24 for her conclusory statements. 25 In Paragraph 3, Ms. Baker does not 10 1 identify any particular expertise in legal matters and 2 she's not given my legal definitions by which she made 3 conclusory statements. For instance, "what documents 4 are privileged communications"; "that documents are 5 relevant to the issue determined in this cause"; "that 6 documents were made in anticipation of litigation." 7 These are all legal conclusions. They're made in all 8 three affidavits, including the one before this court 9 and two that have been previously stricken. 10 Moreover, in Paragraph 3 she gives no 11 basis for what defendants, quote, "believe," end quote, 12 and gives no hint as to her personal knowledge as to any 13 such beliefs. If that were admissible anyway, which it 14 were not. 15 Paragraph 4 illustrates in detail her 16 failure to provide the adequate foundation to give any 17 generally accepted legal definition for anticipating of 18 litigation, relevance, or anything of that nature. 19 Likewise, she fails to give any foundation 20 or factual knowledge as to an unidentified adjuster that 21 she references in that particular paragraph. She makes 22 no information or provides it, whether or not there was 23 an insurance policy relating to the Rojas claim and 24 provides no foundation or knowledge that impact any of 25 the decisions that were made on this file. And so, once 11 1 again, these the conclusory statements. 2 Paragraph 5 demonstrates her lack of 3 knowledge or personal knowledge where she's testifying 4 basically about information and not facts. But the part 5 I want the court to note here is that she testifies in 6 Paragraph 5 of the affidavit as follows, with regard to 7 Cheryl Verge's personnel file. And she goes into detail 8 in her affidavit about why the personnel file is either 9 privileged or relevant. We didn't ask for the personnel 10 file. 11 The other two affidavits that are attached 12 to this, Band C, the personnel files of those adjusters 13 were asked for, and it shows that affiant has no 14 personal knowledge. She's just copying another 15 affidavit and signing and swearing to it. 16 So it gives the court a very clear picture 17 that this is not made upon personal knowledge or she 18 would have read that, she would have looked at the 19 request being made and found that there's no personnel 20 file requested as to the defendant in this case. 21 Secondly, in Paragraph 6 we're asking for 22 litigation logs, which, by the way, have been produced 23 in other cases with regard to Gallagher-Bassett. We 24 have a copy of what those litigation logs look like. 25 And I think they're attached to the last exhibit in this 12 1 one. But the litigation logs of Gallagher-Bassett were 2 produced in the Moreno case and signed by Ms. Tebbets, 3 who is the attorney representing Gallagher-Bassett here 4 today. 5 The statement made in the affidavit to the 6 effect that in Paragraph 6 "the time and expense would 7 be a crushing burden over any period of time to produce 8 such litigation logs." And that is a direct quote in 9 all three of the affidavits, including the two that have 10 been stricken. And, obviously, the time and expense was 11 not a crushing burden to produce the litigation log that 12 we have. 13 And really all we're asking for in that 14 log, Your Honor, is that it be updated as to Gallagher- 15 Bassett. And if there are any Texas cases regarding to 16 the other two defendants, we ask that those be 17 identified. And these only go to Texas workers' 18 compensation bad faith cases. 19 As a footnote to the litigation log that's 20 been produced, I went through it briefly, just looking 21 at them, Your Honor, over 70 percent of those cases are 22 defended by Gallagher-Bassett law firm, which 23 Ms. Tebbets is a member. 24 So at least one of the litigation logs 25 should offer really no difficulty whatsoever to update; 13 1 since we have three or four cases with them, 2 identified it goes all the way back to January of 3 2004. 4 Paragraph 7, Ms. Baker offers no 5 knowledge, much less a definition of "proprietary 6 documents." And I'm assuming this would relate more to 7 the insurance policy itself. I've agreed with 8 Ms. Tebbets: If she wants to redact the amount of 9 premium that's paid for the policy, that's fine with us, 10 but we want the individual policy that relates to the 11 claim of Mr. Ruiz. And we don't have the policy; it's 12 been withheld from us. 13 And I'm sure the court is well aware of 14 the statutory provisions that are required by law to go 15 in these workers' compensation policies. And we do have 16 copies of those because it's just straight out of the 17 manuals. 18 And you will see, Your Honor, with regard 19 to what's required to be in the insurance policies by 20 the Texas legislature include statutory provisions that 21 require that "we are directly and primarily liable to 22 any person entitled to benefits payable by this 23 insurance, and that those persons may enforce our 24 duties." 25 And in Section 5 of the statutory 14 1 provisions say that "this insurance conforms to the 2 parts of the workers' compensation law that apply to 3 benefits payable by this insurance." 4 And then if you look at the third page of 5 that exhibit there, Your Honor, the duties by which our 6 clients have the right to enforce include, as you'll 7 hear in a few moments, that we shall provide you, 8 reserves established on each claim. And we have 9 requested those reserves, but so far they've been denied 10 to us. 11 So that paragraph 7, if they're claiming a 12 proprietary interest in the amount of reserves or what's 13 in the insurance policy itself, that is solved by the 14 entry of the protective order that the court has now 15 entered. There should not be anything privileged with 16 regard to those matters because, number one, they're 17 kept in the ordinary course of business and we're 18 entitled to them by law, both the policy as well as any 19 reserves that might be set in the policy. 20 Paragraph 8, Ms. Baker provides no 21 foundation for, again, her conclusory statement that 22 defendants first anticipated the bad faith suit as of 23 what they claim is April 8th, 2011. We would maintain 24 that the suit cannot be anticipated until the day it was 25 filed, which was about eleven months later, May 9, I 15 1 believe, of 2012. 2 And so there might be some indication in 3 the documents themselves, if anything is submitted for 4 in-camera inspection as to if there was something right 5 before May 9th, 2012, where they anticipate where they 6 anticipate litigation, but we have no idea what it might 7 be. And her affidavit is incompetent to establish that. 8 With regard to Paragraph 9, again, this is 9 lacking appropriate foundation that's required by the 10 cases. Humphreys vs. Caldwell is one cited there. By 11 the way, copies of these cases are in folders behind -- 12 which says that there must be personal knowledge of the 13 factual matters contained in the affidavit. 14 And as you can see from her affidavit, in 15 all three of them, she refers merely to the information 16 that's in the affidavit. And the information is nothing 17 more than conclusory statements. 18 So before we get to actual documents 19 themselves, Your Honor, I would refer the court to three 20 affidavits, the two previous orders by the district 21 judges in Hays County and Travis County, which have 22 stricken those affidavits as inclusory. 23 THE COURT: What's been the procedural 24 resolution of those two issues that you talked about, 25 the Harris County case and Travis County case? Has that 16 1 just stayed at that point, or have there been additional 2 steps? 3 MR. LONGLEY: No. What the court has 4 allowed them to do in both cases were to submit 5 documents. Because as the court may remember in that 6 Peeples' case out of San Antonio, the documents 7 themselves may be evidence of some privilege if the 8 privilege is claimed. 9 Now, of course, we, as you will see in a 10 moment, talk about the privilege log as being totally 11 inadequate under Rule 193.3 because they don't 12 specifically designate a privilege that applies to each 13 specific document, which is required by the Maher case 14 as well as the Monsanto case. Both of those are 15 submitted to the court for your consideration. 16 I might also add the Monsanto case was the 17 very first case decided under the new rules back in 18 1999. And it just so happened it was my case. I 19 highlighted I think for the court the provision by which 20 the court there said was adequate to give proper notice 21 so that the opposing party could make a reasonable 22 objection as to what the privilege might be to try to 23 defend it. 24 And that, of course, has not been provided 25 in any way, shape or form here. And the privilege log, 17 1 which I'm sure counsel will show the court here in a 2 moment, but the privilege log just lists a whole bunch 3 of documents, hundreds of pages, no Bates-stamp number, 4 no way for the court to go through and specifically do 5 as was done in Monsanto and the other cases to reference 6 a Bates-stamped-numbered document and either decide with 7 regard to that document whether parts of it or all of it 8 was privileged based upon a privilege claimed to that 9 document. 10 And so the court shouldn't be put to the 11 test of this, having what we would call a "document 12 dump," and have to go through the documents without even 13 an identification on the privilege log what that 14 document is by page number. That's pretty well the 15 procedure most judges require now and they have been 16 required since the days of the Monsanto case in 1999. 17 So I make that comment because I think 18 that the privilege logs here are really without value to 19 the court. If the court is going to do an in-camera 20 inspection, I would respectfully suggest that the court 21 require there be Bates-stamped numbers on each document 22 they submit to the court for your review so that when 23 you make your decision, whatever it may be, that you can 24 make it with reference to a specific document that's 25 identified by a Bates-stamp number, so if the case goes 18 1 up one way or the other by either side, an appeals court 2 will be able to see and look at the documents and decide 3 if the court made the correct decision. 4 And, by the way, it's just easier to 5 handle documents that way. Right now the court would be 6 required to dictate some description by of document by 7 date, who the recipient, whatever the facts may be as to 8 the document. 9 So we would respectfully suggest and 10 request that the court do here as has been done in other 11 cases that involve the same basic requests and sustain 12 our objections to the affidavit from Ms. Baker as was 13 done in the other two cases we mentioned by Judge 14 Covington and Judge Ramos in Harris County. 15 I might point out that both of those other 16 affidavits were not by Ms. Baker, only one of them was; 17 the other was by Teresa Blake. But the affidavits are 18 almost exactly identical in their language. It's an 19 affidavit that they use over and over, like a 20 roboaffidavit. 21 With that, Your Honor, I'll quit with 22 regard to that portion of our presentation today. The 23 reason I bring it up first is so that the court can rule 24 on the affidavit first, and then we'll be looking at the 25 other documents in light of whether or not there's an 19 1 affidavit testimony to support those privileges. 2 Thank you, Your Honor. 3 THE COURT: Ms. Tebbets. 4 MS. TEBBETS: Thank you, Your Honor. I 5 somewhat laughed at the characterization of this as a 6 roboaffidavit, because what the plaintiff fails to tell 7 you is that the discovery that was served in each of 8 these cases were identical to the same entity. And if I 9 had come up with different responses and filed a 10 different response, then I think what would hear is 11 "look at this affidavit here in this other case for the 12 same requested discovery they said something 13 different." And so I think that, actually, what he 14 termed as a "roboaffidavit" in robodiscovery, that has 15 absolutely no bearing. 16 Now let me tell you what the affidavit 17 does say. The affidavit says that Ms. Baker is the 18 supervisor for the claims; she over saw the managing of 19 this claim; she is familiar with the files and the way 20 files are maintained and in familiar with this claim. 21 If that doesn't establish personal knowledge, I'm not 22 quite sure what would establish personal knowledge. 23 So I think it is somewhat of a red herring 24 to get up here and say Oh, it lacks foundation, it lacks 25 personal knowledge, when in fact Ms. Baker has set forth 20 1 how she came to have knowledge about this. She has 2 stated that she has reviewed the discovery in this 3 case. So there are matters that set forth her personal 4 knowledge and the foundation for her testimony. And she 5 does specifically state that she is an authorized 6 representative with regard to the two corporate 7 defendants in this matter. 8 The legal conclusions that he claims that 9 she's making are statements like "We believe we were 10 protected by the attorney-client privilege." I'm not of 11 any client privilege that says only a lawyer can say "We 12 believe that there was an attorney-client privilege." 13 In fact, it's very clear that the person who has the 14 right to claim the attorney-client privilege is the 15 client. 16 And so, again, he hasn't presented to you 17 any specific legal conclusions that he says were in here 18 other than the statements such as "We thought that we 19 had an attorney-client privilege here." Again, that is 20 not a legal conclusion. I'm not aware of any law that 21 says that an individual or a representative for a 22 corporation is unable to make such a statement or that 23 such a statement would be a legal conclusion. 24 One other point to make with regard to the 25 actual affidavit. There are facts that are different. 21 1 I mean, these affidavits are tailored to the specific 2 facts of each specific case. It's just with regard to 3 the same set of discovery that we have the same 4 questions and the same answers. They are consistent. 5 They're consistent there. 6 With regard to Mr. Longley made a big 7 production about the fact that she included the 8 personnel file in here. This affidavit was actually 9 filed in response to the first motion to compel, which 10 was filed actually in Travis County. And at that point 11 it was a very generic motion to compel with regard to 12 discovery; there wasn't delineation of exactly what they 13 were seeking. 14 So the fact that in the past they had 15 sought personnel file information, inclusion of the 16 personnel file paragraph in there doesn't render this 17 affidavit moot or inaccurate in any way. It was simply 18 based on the original motion to compel which was not a 19 very specific motion. And, admittedly, that they have 20 made it more specific, but I didn't see the need to 21 actually create new affidavit just to remove that 22 paragraph. 23 There has been some discussion here and 24 we've kind of bled over it a little bit, into the motion 25 to compel, but I'd like to address it. For example, the 22 1 litigation logs. As Your Honor may be aware, there was 2 a supreme court decision that came down in June of this 3 year that has completely gutted this area of the law. 4 It has been, in the past, the primary 5 causes of action that were brought against insurance 6 carriers and adjusters and third-party administrators 7 were for breach of the duty of good faith and fair 8 dealing; violations of 541.060 of the Insurance Code, 9 which was unfair claim and settlement practices, and 10 then a tie-in DTPA provision. The supreme court has 11 completed eliminated all three of those causes of action 12 in this matter. 13 So with regard to litigation logs, we're 14 in a completely different ball game now because 15 beforehand you were dealing with causes of action that 16 are completely different from the causes of action that 17 we're going forward with today. And because of that, 18 these prior cases, it will take time and expense to come 19 up with a list of these cases because our clients do not 20 maintain this type of a list. 21 But if you were to actually order 22 production of similar cases, then that would also 23 require going back and looking to see, looking at every 24 single case to see what was pled in that case to see of 25 by chance it included one of the things that plaintiffs 23 1 are now pleading following the Ruttiger decision. So 2 it's not a simple and easy task that being requested. 3 And, again, we have no guarantee that all 4 of the cases that we have listed on that list that 5 Mr. Longley gave you is a complete list. Because this 6 is my best efforts to compile what I can compile. But, 7 again, they really have absolutely no bearing and no 8 relevance anymore because they are all based on invalid 9 causes of action that no longer exist. 10 With regard to there was some mention of 11 the reserving. And I don't know if you want me to get 12 into this yet, but reserving under an insurance policy, 13 especially in the workers' comp system, have no bearing 14 on how you adjust a claim. 15 For example, if a man has an injury, 16 injures his back, first it looks like it's a sprain- 17 strain and they say, Okay, we estimate $10,000 for this 18 claim. Well, all of a sudden he has back surgery. 19 Well, we haven't reserved the claim for back surgery. 20 That doesn't mean the insurance company gets out of 21 paying for the back surgery. You just have to up your 22 reserves. This is just moving money from one account, I 23 guess -- not even really an account; but one area to 24 another area. I mean, the reserves fluctuate through 25 the handling of a claim and have absolutely no relevance 24 1 or no bearing on payment of a workers' compensation 2 claim. 3 And, again, reserves arguably had more 4 relevance when they are with the Unfair Claims 5 Settlement Practices Act because you could look at it 6 and say, Well, you had reserved the claim for fifty 7 thousand and yet you only offered me one thousand. 8 Arguably, I could see that. 9 But we don't have that anymore. The 10 supreme court has very clearly stated that there is no 11 more unfair settlement practices in the Workers' Comp 12 Act. So, again, the reserves really have absolutely no 13 bearing with regard to the allegations that are asserted 14 against us right now. 15 And with regard to the insurance policy. 16 Again, the Ruttiger decision. I have a copy for Your 17 Honor of the decision. 18 MR. LONGLEY: Your Honor, if I might 19 interpose an objection. All we're doing is objecting to 20 an affidavit. She's on the merits now with regard to 21 each of the matters the court should consider with the 22 motion to compel. I think, you know, either my 23 objection is good or it's not good and we can move on to 24 these things. But I'd like to be heard first with 25 regard to -- 25 1 THE COURT: I'll take a look at the case. 2 MS. TEBBETS: Thank you, Your Honor. May 3 I approach? 4 (Tenders document to the court) 5 MS. TEBBETS: I have highlighted a couple 6 of relevant sections, so I've also highlighted those for 7 Mr. Longley. 8 With regard to insurance policy. Again, I 9 would point to the Ruttiger case that is before you. 10 Ruttiger has said now that there is potentially a cause 11 of action under the Insurance Code for misrepresentation 12 of policy terms. 13 Now, what the case, though, has come out 14 and said is that mere denial of a claim as it being in 15 the course and scope is not a misrepresentation of a 16 policy term. And what I would represent to Your Honor, 17 the only misrepresentation of a policy term in a 18 Workers' Comp Act case, that I can see, would be policy 19 period. Coverage. 20 Is there coverage in the state of Texas, 21 an employer status? Those are really the only policy 22 terms that unique to what employer because, as the 23 Ruttiger case makes clear, the Texas Workers' 24 Compensation Act is a pervasive act; it contains all 25 kinds of deadlines and instructions and procedures that 26 1 both the injured worker and the insurance carrier are 2 required to follow. 3 And so the way, according to the court, 4 the way you adjust a claim, a workers' comp claim, in 5 Texas is not based on the policy, it's based on the 6 actual act. And so, therefore, the actual policy itself 7 has no bearing or no relevance to the matter we're in 8 dispute in this case. 9 And then, finally, with regard to the 10 privilege logs. May I approach? 11 THE COURT: You may. 12 (Tenders document to the court) 13 MS. TEBBETS: I've brought some examples. 14 And I'll represent that the first document is the 15 privilege log that actually submitted. The second set 16 of documents is examples of items on the privilege log. 17 So, for example, the first page has a 18 redacted, blacked-out, portion. I've given Mr. Longley 19 copies of the blacked-out portion. Then behind that, 20 highlighted in yellow, you can actually see for 21 in-camera inspection what was redacted. 22 And so by looking at the privilege log, 23 the privilege log says, We have redacted, for example 24 you can look at the top lines: Entry date: 3/29/11; 25 Subject: Coverage compensability; Author: King, 27 1 Melissa. 2 And so then you can look and see what was 3 there on that first page; you can see on the back the 4 Tax ID number. And then further down the Deductible and 5 the Policy Limits. Your Honor can look to Page 2 and 6 see what it is we redacted. 7 And then if you look at the next example, 8 I've given you an example of the reserving redaction. 9 And I've explained why we believe the legal reserves are 10 redacted. And the next example I think shows you the 11 attorney-client. 12 The way I try to produce these, and 13 specifically I'm looking at the 5/18/11 at 1535 entry. 14 So that gives the substantive File Notes and the author, 15 Cheryl Verge. In Florence Bakers' affidavit, she has 16 that Smith and Palmer is the attorney that is 17 representing them. And so what I have shown is that 18 Smith and Palmer -- so they have a reference to see why 19 this is redacted. But then, as you can see in looking 20 at the next page, it is an attorney-client 21 communication. 22 And so by looking at what we have produced 23 in the redactions and comparing the privilege log to the 24 document, you can see that I have given them all the 25 information that they would need to be able to determine 28 1 if they want to come to the court and say, We don't 2 believe that this is privilege. And so this privilege 3 log actually goes above and beyond what is required by 4 the Act. 5 Mr. Longley has made statements we're 6 required to have a Bates stamp so that you can be able 7 to identify what it is you're looking at. But, again, 8 the top two lines of each of these pages is exactly 9 copied onto the privilege log. So they are easily 10 identifiable and they do provide the plaintiff with the 11 ability to determine if he wants to see a ruling on any 12 of those documents. So I believe it does meet the 13 requirements for the privilege log. 14 MR. LONGLEY: May I give you a short 15 reply, Your Honor? 16 THE COURT: Sure. 17 MR. LONGLEY: First of all, Your Honor, 18 the Ruttiger case does not completely gut this area of 19 the law. Only last week in Fannin County this law firm 20 that is opposing Mr. and Mrs. Ruiz here were 21 representing a plaintiff in an almost identical case up 22 in Fannin County and admitted the following proposed 23 jury charge in Fannin County, which has all the causes 24 of action there that they wanted submitted and they got 25 submitted. 29 1 MS. TEBBETS: I'll objection, Your Honor, 2 only because there's been a misrepresentation there. 3 That is a proposed jury charge; there was no jury charge 4 that was ever submitted to the jury in that matter. 5 I would tell the court that that case is 6 extremely different because, as I mentioned to you with 7 Ruttiger, that there can really only be three 8 misrepresentations in policy terms. In that case in 9 Fannin County, the insurance company had said there is 10 no Texas coverage. And in that case the Division of 11 Workers' Compensation wrote a decision that said there 12 is Texas coverage. 13 So that case is the true exception to 14 Ruttiger and is a unique exception to Ruttiger. And in 15 all honestly, I have never seen another true coverage 16 misrepresentation of policy terms, because I've been 17 doing this a long time and that is only one that I've 18 ever seen. 19 I will represent to Your Honor that we've 20 removed all Ruttiger causes of action and we did not 21 submit or seek any recovery under anything that was 22 barred by Ruttiger. The case in Fannin County was 23 incredibly different because there was an actual 24 misrepresentation of coverage because they said that you 25 cannot get Texas benefits. 30 1 MR. LONGLEY: Your Honor, they went 2 through two motions for summary judgments up there with 3 their own the pleadings. We want to get the same 4 discovery that they got in their plaintiff's case in 5 Fannin County. In fact, they copied a lot of my 6 requests. And the judge up there gave it to them. 7 Here, they're saying that nothing is left 8 after Ruttiger. I propose that on Page 13 of the 9 Ruttiger decision misrepresentation is left, just as 10 they submitted in Fannin County, and just as we're going 11 to submit once we get our discovery in this case. 12 We have pled the misrepresentation of 13 coverage, we pled misrepresentation of the insurance 14 policy and we've pled unconscionability under DTPA. 15 Same things they pled in Fannin County and got to the 16 jury on. 17 Now we want to get discovery. They got 18 all the way to a jury and the case was settled while the 19 jury was -- I believe either out or the case was still 20 in trial. And if you look at the date of their 21 submission, that was October 8th, 2012. Last week. 22 And all we're asking for, Judge, is that 23 we get the discovery that they get. We request the 24 discovery that we have gotten in the other cases. As 25 you can see from the orders of the other judges where 31 1 these same documents that have in play, the courts have 2 granted this discovery because not only is it relevant, 3 it's admissible. That's the point I make. 4 We are still on our objection to the 5 affidavit, I might add, because we are now arguing over 6 into the actual documents themselves. So I'm going to 7 reserve my actual argument as to each category of 8 documents that I would request the court respectfully to 9 rule on our objection to the affidavit. 10 MS. TEBBETS: And just very, very briefly, 11 Your Honor. 12 THE COURT: Go ahead. 13 MS. TEBBETS: I will tell you that the 14 discovery that we may have gotten in the Fannin County 15 case was pre-Ruttiger. For example, the policies and 16 procedures, that was not offered into evidence even, 17 because, again, that is no longer relevant under the 18 Ruttiger ruling, that ruled that you no longer have a 19 cause of action related to your policies and 20 procedures. 21 So, again, there may have been things that 22 were relevant when that suit was filed and initial 23 discovery was sent in. But things have really changed 24 now, as of June 22nd of this year. And this area 25 is gutted. That Fannin County case, I admit is very 32 1 difference. 2 But, again, the plaintiff hasn't come to 3 you and said, What policy term has been misrepresented? 4 In the only thing in their pleadings, they say that you 5 made a misrepresentation by denying the claim. And that 6 is exactly what Ruttiger has said is not a 7 misrepresentation. 8 THE COURT: I'm going to sustain the 9 objection. I think where we're headed on this is an 10 in-camera inspection, but also a close in-camera 11 inspection. You know, the Ruttiger case, that's where 12 I'm leaning on both of these issues. 13 We'll take up the second issue and I'll 14 hear arguments on that issue. 15 MR. LONGLEY: I understand, Your Honor. 16 And you asked me earlier, procedurally, how did the 17 court proceed in the other cases. They struck the 18 affidavit. They took the documents and the privilege 19 log and they, I guess, made an in-camera inspection. I 20 know Judge Covington -- because there was really no 21 evidence of anything being privileged other than the 22 documents themselves. 23 She struck the affidavit and she ordered 24 all the documents produced, as you can see from the 25 order that's attached, in each category of documents. 33 1 These are the same categories that were produced to 2 Ms. Tebbets's firm in the case up in Fannin County. 3 And they included the causes of action 4 that we have before this court that survived Ruttiger. 5 And we still maintain that if we're going to test the 6 limits of what survived Ruttiger, we have to at the same 7 time test the limits of what's discoverable under 8 Ruttiger. 9 And we say that the same things are still 10 discoverable. If you look at our pleadings, which are 11 attached under Tab 2 of the motion to compel, we have 12 pled very specifically, in light of what we know the 13 statutory requirements are, as provided to the court, we 14 are entitled to the benefits. The benefits were not 15 paid timely. We requested the reserves; the reserves 16 were denied to us. 17 We have stated to the court what the 18 misrepresentations were, as far as we know so far. And 19 I'll just reiterate those to you. We claim that where 20 they say in their PLMI -- I'm sure the court will recall 21 from your practice days, that's the denial of the 22 workers' comp claim. 23 They say: "The plaintiffs failed to 24 identify an incident traceable to a specific time, date 25 or event that caused the alleged injury. The claimant 34 1 failed to produce medical documents linking anything 2 damage or harm to the physical structure of his body to 3 any alleged work-related activity." 4 We say those are falsehoods that they made 5 to the Department of Workers' Compensation. We say that 6 that's a misrepresentation of the policy that applies to 7 these benefits that were paid eventually to our client. 8 And we said that those misrepresentations were made for 9 the purpose of delaying his claim, did delay his claim, 10 and caused damages to him and his wife. 11 So same type of thing that has been pled 12 in their case in Sales with regard to Siegfried 13 Montgomery (Phonetic), saying there's no coverage. An 14 unconscionability with regard to taking unfair advantage 15 of our client's lack in ability or capacity or 16 experience to a grossly unfair degree. 17 Now, going back once more to address one 18 more thing that Ms. Tebbets said. She said moving money 19 from one area to another, about the reserves. And I 20 just want to point out that she is absolutely correct. 21 That's what reserves do. Reserves absolutely establish 22 coverage because it moves money from the asset side of 23 the insurance company's balance sheet to the liability 24 side. 25 So it does move money from one area to 35 1 another but in a fashion that recognizes and embraces 2 coverage. And that's why they're so important in this 3 case. Or in any case with regard to a workers' 4 compensation benefit case. 5 It shows when the misrepresentation is 6 embraced, and they continue making the misrepresentation 7 even after they establish reserve and putting it on 8 their liability side of their docket, recognizing that 9 there's coverage. 10 So with regard to the categories of 11 documents, Your Honor, I'm just going to briefly let you 12 know what it is we're seeking. And I would ask, first, 13 that if the court is going to make an in-camera 14 inspection it require a proper privilege log from these 15 defendants, and that such a privilege log identify each 16 document that they want you to review by a Bates-stamped 17 number, by the date of the document, by the author of 18 the document, by the recipients. 19 And by that I mean all recipients of the 20 documents because, as you know, in the Jordan case, 21 Fourth Court of Appeals, if the document goes outside 22 the owner's privilege, it's been waived by disclosure. 23 In that case, it was documents disclosed to a grand 24 jury. In the Harco case, the documents were disclosed 25 to a reinsurer. 36 1 So the court has to have before it who all 2 the recipients of the documents were. And the supreme 3 court just came out with a brand new case, I think it 4 was less than two months ago, XL Specialty, Inc., which 5 was a TPA, third-party administer, just like Gallagher- 6 Bassett, had documents that they had disclosed to the 7 employer and they didn't represent the employer. And I 8 think I provided this case to the court with the cases 9 we gave the court yesterday. XL Specialty is a Texas 10 Supreme Court case. 11 And it says that unless there is evidence 12 in the record that the lawyer is representing the 13 employer, then there is no privilege. 14 And so if there's been documents, when you 15 review these documents, if you see that these documents 16 have been shared in any way, shape or form with the 17 employer and that the employer was not represented by 18 the same lawyer in the case, then they are not 19 privileged. And that's exactly what XL Specialty held. 20 And with regard to any evidence here, 21 counsel has given the court no evidence with regard to 22 that other than to say -- I think there is an affidavit 23 from the employer saying that they did not have access 24 to the electronic facilities to see what was in the 25 claims file, and that they thought that anything that 37 1 they had been told by the lawyer representing the 2 carrier might be kept confidential. 3 But you have nothing from the lawyers that 4 were representing Gallagher-Bassett or the carrier 5 before the Comp Commission that say they represented the 6 employer. 7 As a matter of fact, it may be that they 8 were not representing the employer. And we have a copy 9 here, which is attached to our pleading, in which Robin 10 Lowencron, who was the attorney representing the 11 carrier, stated that only she is representing the 12 carrier and that a person by the name of Kevin Bellamy 13 was representing the employer at that hearing. So there 14 was no common counsel with regard to that; therefore, it 15 falls directly under the XL Specialty's case. 16 So, Your Honor, we would simply ask that 17 the court look at the category of documents that we're 18 requesting here. They've been requested in many cases, 19 they've been produced in every case that we requested 20 them in, and we think that they are completely 21 discoverable, if not absolutely admissible in a workers' 22 compensation claim. 23 And just to briefly review with the court 24 as to what we are requesting: 25 Number one, the insurance policy itself. 38 1 And we have a protective order with regard to that 2 policy. If counsel wants to redact the amount of the 3 premium that was paid by the employer with regard to 4 that policy, I would agree with that small sliver of 5 information to be redacted; otherwise, we want the 6 entire policy. 7 The next category are the claim notes. 8 And the claim notes, I think the court has an example of 9 what they look like in the redacted form. But the claim 10 notes that we've been given, Your Honor, are not in the 11 format in which they're kept. And I've given you 12 examples; I believe it's Exhibit E to our motion as to 13 what they're claim notes look like. 14 I take it back. Hold on. We are asking 15 that the claim notes be kept in the format that they're 16 kept before it's Exhibit F. We ask that they be 17 produced in that format that you find behind Exhibit F 18 to our motion. And by that, it's in chronological order 19 by date and it shows military time for each entry and it 20 shows the code for each entry. We know what those codes 21 are and we can look at the entries and patchwork 22 together the day-to-day, hour-to-hour handling of the 23 file with regard to misrepresentation and 24 unconscionability with regard to those notes produced in 25 that fashion. 39 1 The way they've been produced is they give 2 us one claim note per page. And we want them in the 3 format that you see here in Exhibit F. And that's how 4 they've been ordered to be produced in other cases and 5 that's how they have been produced in other cases. But 6 this hide-the-ball type of production by giving one 7 claim note per page is nothing more than obfuscation of 8 what the facts should reveal and an attempt to conceal 9 those facts from us. 10 So assuming the court is going order the 11 claim notes, which we respectfully request be produced, 12 we would ask they be in the format that they are 13 ordinarily kept, as required by the Rules. The Rules 14 require that documentation be kept in the format that 15 they are kept within the business records. 16 So we want the claim notes that you see in 17 Exhibit F, in that same format. We request a claim 18 file, which would include claim notes and investigative 19 reports and communications, as well as e-mails, letters, 20 what have you, including communications with the 21 Department of Workers' Compensation in Austin, at the 22 Department of Insurance. Those are always been ordered 23 produced as being relevant and are certainly 24 discoverable. 25 C is claims reserves. We've already 40 1 talked about those, but I've given the court the Texas 2 cases on claim reserves. We're not asking for the 3 third-party claim reserves like in the case that 4 Ms. Tebbets gave you. We're asking only for the claim 5 reserves that have been made on Mr. Ruiz's file. In 6 other words, they were asking for hundreds of claim 7 reserves for third parties in the case that was given to 8 you from Texarkana. That's different from our case. 9 We want ours under the Swicegood case, 10 which allows the production of the reserves for the 11 particular claim at issue. And those are all contained, 12 by the way, in the claim notes. 13 Next, we want the best practices manuals, 14 claims manuals and guidelines and directions, both from 15 Everest, if they have any. Most times they're not 16 produced because a third-party administrator, such as 17 Gallagher-Bassett, has their own claims practices 18 manuals. And those have been produced in all these 19 other cases we've been referring to. They've been 20 produced by Ms. Tebbets and Ms. Ayers, and we know what 21 they look like. If they're produced pursuant to a 22 protective order, we have to give them back to them, 23 which we've done. But we know they exist. 24 Next, we want Gallagher-Bassett's third- 25 party administrator contract with Everest. And the 41 1 reason this is so important, Your Honor, is that those 2 third-party administrator contracts outline the duties 3 and obligations of the TPA in the handling of the claim 4 and then representing that coverage in the decisions 5 regarding coverage; plus, decisions regarding reserves, 6 as to whether or not they accept coverage and thereby 7 make the move from one area to another, as Ms. Tebbets 8 talked about, which is from the assets to the 9 liabilities. 10 And even more important than that, the 11 TPAs usually carry their own insurance and there'll be a 12 requirement in there showing how much insurance they're 13 required to carry to protect the carrier in case they 14 have some errors and omissions that might adversely 15 affect the carrier. And so we would be entitled to that 16 information, and it's contained in the TPA contract. 17 Of course, I've already addressed the 18 insurance policy itself. 19 with regard to Gallagher-Bassett and 20 Everest attorney's fees, it's my understanding from 21 speaking to Ms. Tebbets they have withdraw their request 22 for attorney's fee based upon -- a ground was claimed 23 brought in bad faith, of course, the purpose of 24 harassment under Section 10 of the Civil Practices and 25 Remedies Code, as well as Rule 13 of the Texas Rules of 42 1 Civil Procedure. 2 With that representation, Your Honor, we 3 will not seek copies of their attorney's fees at this 4 time with the proviso, and I think Ms. Tebbets will 5 agree with this, that if at some point in time in this 6 case they do start seeking attorney's fees, that we have 7 the ability to make full discovery with regard to what 8 those attorney's fees are. So at this point we'd hold 9 that in abeyance with regard to our getting the 10 information about their attorneys fees. 11 The other claims and lawsuits I have 12 briefly addressed, and you have a copy of the litigation 13 log that has been produced in other cases. I ask 14 respectfully that that be update and that we get a 15 litigation log, if one exists, with regard to Everest 16 and the defendant adjuster. 17 Those are the documents, Your Honor, that 18 we're seeking. I understand that the court will most 19 likely make an in-camera review of the documents that 20 have been withheld, but there should be many of these 21 documents that have not been withheld that can be 22 produced pursuant to a protective order. I would ask 23 that those go ahead and be produced at this time, 24 pending whatever the court might do with regard to 25 resolution of any claimed privileges. 43 1 With regard to privileges, I would 2 respectfully urge the court to make them do a new 3 privilege log, comprehensive with items that we've 4 requested so the court will not be burdened by days of 5 looking at individual documents and trying to match up 6 an individual to which no specific privilege has been 7 made to some privilege that might be broadly outlined on 8 a privilege log that's not identified to that page or 9 anything else. That way it would go a lot smoother, 10 Your Honor, I would suggest. 11 And we sincerely appreciate the court's 12 time on this. Hopefully it hasn't taken more than an 13 hour, but if we have, I apologize. 14 THE COURT: The privilege log, I 15 understand the general principle, it's not something you 16 want to do because it may be require a lot of man 17 hours. 18 On the other side, though, doesn't it 19 allow, you know, the appellate court to take a better 20 look at it if you don't like the trial court's ruling on 21 those matters? 22 MS. TEBBETS: I actually think that the 23 way I have done it and I have laid out for you is the 24 easiest way. And here's why. One clarification. Only 25 one court has actually ordered they be produced in a 44 1 rolling format with everything on one page. 2 But what I think makes it an easier 3 because of the way I've given it to you, you know, the 4 privilege log literally has the first two lines of every 5 claim note. And each claim note is different. 6 Do you still have the privilege log 7 documents? 8 THE COURT: Yes. 9 MS. TEBBETS: And so if you look, every 10 entry has the entry, date, the time, subject matter and 11 the author. And I'll inform Your Honor that all the 12 documents that have been withheld, that are on the 13 privilege log, are all within the claim notes. And they 14 are not dispersed to anyone. They are internal 15 documents; they are two affidavits from Ms. Baker and 16 the employer, where they confirmed the employer does not 17 have access to it. So there really is no recipient, as 18 much. 19 So by looking at these on a claim note-by- 20 claim note basis, you can look at this and if you think 21 No. 1 should be produced, then you can pullout that one 22 page and say This should be produced. 23 But let's say one, two and three are all 24 on the same page and you think only one should be 25 produced. That's going to be more work and more effort 45 1 for Your Honor to try to distinguish what should be 2 produced and what should not be produced. So by doing 3 them on a individual page-by-page basis, you're able to 4 identify by looking at the privilege log; you can say 5 Entry Date: 5/18/11, 1535; Subject: File note; Author: 6 Cheryl Verge should be produced. And that makes it easy 7 to do that. 8 And I'll tell Your Honor too that these 9 documents can be produced on page-by-page basis. So 10 just because the plaintiff may want it in a different 11 format doesn't mean that what I have done is improper. 12 But I do think that's the easiest way for the court to 13 be able to evaluate what should and should not be 14 produced. 15 And just very briefly. Again, nothing 16 from the claim file that has been withheld other than to 17 the extent the claim notes are contained within the 18 claim file. So all of the communications to division 19 and the medical records and things like that that are 20 typically contained in a claim file have been produced. 21 Very, very briefly with regard to 22 Swicegood case that the plaintiff mentioned, with regard 23 to reserving, that case involved a question of whether a 24 third party settlement offer should have been accepted 25 in a Stowers lawsuit. Completely different. Completely 46 1 irrelevant with regard to a workers' comp claim. 2 And, again, with the reserving, reserves 3 fluctuate even if a claim is accepted. They can 4 fluctuate within the claim. It really has no relevance 5 and bearing to these matters. 6 With regard to manuals. The courts that 7 have produced it in the past were before the Ruttiger 8 decision. And I want it to be clear that with regard to 9 our attorney's fees, I'm not agreeing that they should 10 be produced, if, in fact, attorney's fees become 11 later -- I mean, we're just agreeing to reserve that 12 issue for a later date. 13 MR. LONGLEY: That's fine, Your Honor, I 14 have no problem with that. 15 Your Honor, in response I would note that 16 on the Monsanto case, which is found behind Tab B, 17 behind the red tabs on the binder you have, at Page 13. 18 This is the format that I would respectfully urge the 19 court to use so that it makes everything go a whole lot 20 more easier, especially for the court. 21 If you remember, that was the first case 22 that was decided under the new Rules. And it says: 23 "Relators serve privilege logs which identified each 24 document by Bates number, number of pages, date, 25 document title, document type, document traits that 47 1 author, slash, source, if known, and recipients, if 2 applicable, identify the persons receiving a copy of the 3 document and identify the privilege asserted to each 4 document." 5 And that is what is lacking in their 6 privilege log. They do not have a privilege log that 7 identifies those items across the columns, like probably 8 a dozen or maybe hundreds of privilege logs that this 9 court has reviewed in the past, that makes them easy to 10 review, and you either check that some of it's 11 privileged, none of it's privileged, or what portion may 12 be produced. 13 That's all we're asking, is that the court 14 do this according to the very first case that set the 15 standard for privilege logs and the way the courts have 16 reviews, in-camera inspections, and have pretty much 17 done. 18 It's the known method and accepted method 19 of doing privilege log so that the court doesn't have to 20 just plow through a bunch of documents and decide that 21 there's some nebulous privilege that might apply to 22 document that has not been specifically addressed in the 23 privilege log that applies to that document. 24 THE COURT: I'm not quite inclined to do 25 that for two reasons. Number one, I want to make sure 48 I that we are only focusing on the privilege rather than 2 on obtaining additional discovery. See what I'm saying? 3 I mean, that's not an appropriate avenue to obtain 4 additional discovery. 5 Secondly, from the defendant's perspective 6 it's their burden to prove the privilege. And if they 7 don't, then they don't do it. 8 MR. LONGLEY: That's true, Your Honor. 9 And that really should be our first line of attack, is 10 that their privilege log does not allow the court to 11 determine that any privilege applies to any specific 12 document. That's our most fundamental attack. 13 The only request that we made with regard 14 to the Monsanto designations was so that you could 15 identify the recipients where the documents have been 16 given to people outside its own privilege. 17 For instance, the employer, which we know 18 and anticipate that there have been documents that have 19 been given to the employer that are going to be 20 somewhere in these privilege logs. And unless it's 21 disclosed to the court that someone else outside of the 22 insurance company or Gallagher-Bassett has received 23 these documents, you're not going to know and I will 24 never know. So the recipients have to be disclosed. 25 And that's the main thing we would ask. 49 1 Your Honor, we have an order with regard 2 to the striking of the affidavit that the court 3 previously done. 4 THE COURT: As to the other items, I'm 5 going to grant the defendant's request to present the 6 documents in their format. 7 I'm going to order in-camera inspection to 8 be done pursuant to the categories requested by the 9 plaintiffs. 10 MS. TEBBETS: I'm sorry. I just want to 11 make sure I get this down right. Say that again. 12 THE COURT: The categories that were 13 requested by the plaintiffs, I'm going go ahead and 14 grant those. By granting, I'm saying that those are 15 going to be presented for in-camera inspection. 16 I would request that both parties present 17 a detailed order on this matter. I understand it's a 18 little bit more difficult for the plaintiff. But the 19 defense present a detailed order. In other words, I 20 want to be able to take the order, take the documents 21 and made a ruling as I go. 22 MS. TEBBETS: If I was to give you an 23 order that was similar to the privilege log that I've 24 given you, but put like an extra space for either 25 "denied" by each one, would that be sufficient? 50 1 THE COURT: That might be the best way to 2 go about it. I just want to make it relatively easy as 3 the court is going to have to plow through a bunch of 4 documents. 5 And both parties can provide additional 6 issues as they so choose, issues as they come to the 7 forefront. 8 MR. LONGLEY: Can we ask that the 9 recipients all the documents be disclosed as well, Your 10 Honor? 11 We have given the court a copy of the 12 supplement privilege log that was required by Judge 13 Shadwick in Houston in which he made the requirement 14 that there be Bates stamp numbers in all that because 15 the original privilege logs were inadequate. 16 MS. TEBBETS: That's actually a very 17 different situation, Your Honor. In that situation what 18 happened was the plaintiff filed attorney-client 19 privilege communication that he got from the source, 20 that the judge determined remained privileged. 21 And the reason that there was supplement 22 filings in that case was because the court -- we had to 23 go through a whole series of motions to seal because of 24 the plaintiff's multiple filings of these privileged 25 communications that the Judge had already ruled that 51 1 they were privileged and should be returned. 2 MR. LONGLEY: But they were ordered to 3 file a specific privilege log to show what documents 4 were never presented to the court. 5 MS. TEBBETS: As to the documents that 6 were improperly filed. 7 MR. LONGLEY: And I have a transcript. 8 THE COURT: We'll use defendant's proposed 9 format. But, again, be careful what you wish for on 10 that. I prefer that they be Bates-stamped, but if you 11 choose not to do it that way, then that's your call. 12 Let's go ahead and follow that procedure. 13 When can you give me the documents? 14 MS. TEBBETS: If I could have two weeks, 15 Your Honor. And one point of clarification of how you 16 would like the in-camera. Would you like in-camera in 17 the rolling format or on the page-by-page like I did it? 18 THE COURT: I'd prefer page-by-page. 19 MS. TEBBETS: Okay. And would you like 20 for me to put the redacted version followed by the 21 unredacted version -- 22 THE COURT: Yes. 23 MS. TEBBETS: as I've given you today 24 Okay. But we are ordered to produce the rolling format 25 to the plaintiffs; is that correct? 52 1 THE COURT: Yes. 2 MS. TEBBETS: Okay. 3 THE COURT: The defendant is ordered to 4 produce the documents for in-camera inspection under 5 fourteen days from today. 6 MR. LONGLEY: Your Honor, I'll try to fax 7 an order and present it to Ms. Tebbets and see if we can 8 agree on something to present to the court. 9 THE COURT: That'd be great. If not, 10 we'll come back here and have a look at it. 11 Yes, ma'am? 12 MS. TEBBETS: I do have actually one more 13 point of clarification. I know you said you sustained 14 the objections to Ms. Baker affidavit? 15 THE COURT: Yes. 16 MS. TEBBETS: That is completely, even the 17 factual remarks as to who the attorney was that was 18 representing the carrier? 19 THE COURT: The objection presented was 20 sustained. 21 MR. LONGLEY: Thank you, Your Honor. 22 THE COURT: In recess. 23 24 25 53 1 STATE OF TEXAS 2 COUNTY OF HAYS 3 I, Diana Vargas, Deputy Official Court Reporter 4 in and for the 428th Judicial District Court of Hays 5 County, State of Texas, do hereby certify that the above 6 and foregoing pages contain a true and correct 7 transcript of all portions of evidence and other 8 proceedings, requested in writing by counsel for the 9 parties to be included in this volume of the Reporter's 10 Record, in the above-styled and numbered cause, all of 11 which occurred in open court or in chambers and were 12 reported by me. 13 I further certify that this Reporter's Record 14 of the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $278.50 and was 18 paid by Defendants. 19 WITNESS MY HAND this the 26th day of November, 20 2012. 21 22 Isl Diana Vargas Diana Vargas, Texas CSR 5872 23 Expiration Date: 12/31/12 P.O. Box 404 24 Schertz, TX 78154 Telephone: 210-827-4164 25 Appendix 1010 CAUSE NO. 12-1593 JOSEPH RUIZ AND § IN THE DISTRICT COURT AMANDA RUIZ § § § vs. § OF HAYS COUNTY, TEXAS § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSETI § SERVICES, INC.; AND CHERYL § VERGE § 274ft!JUDICIAL DISTRICT NOTICE OF FILING Defendants herein give all concerned parties in the above-styled and numbered cause notice of filing with the Clerk of the Court in which this cause is pending, Defendant Gallagher Bassett Services,lnc.'s Objections and Responses to Plaintiffs' Request for Production and Response to Request for Privilege Log. Respectfully submitted, AYERS & AYERS By:----.,Q'-f-h"","",",' A","""A,<,-",\"'"""""k_"--'lt"-"'\~ __ PEANNE C. AYERS- State Bar No. 01465820 JUUE B. TEBBETS State Bar No. 00793419 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 ATIORNEYS FOR DEFENDANTS NOTICE OF FlUNG - PAGE 1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing was sent to lead counsel of record, via certified mail, return receipt requested, on this the 9th day of November, 2012, pursuant to Tex.R.Civ.P. 8. J 'e 8. Tebbets NOTICE OF FIl.ING - PAGE 2 CAUSE NO. D-1-GN-12000705 JOSEPH RUIZAND § IN THE DISTRICT COURT AMANOARU~ § § § vs. § OF TRAVIS COUNTY, TEXAS § § EVEREST NATIONAL INSURANCE § COMPANY; GALLAGHER BASSED § SERVICES, INC.; AND CHERYL § VERGE § 345th JUDICIAL DISTRICT DEFENDANT GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTiON AND RESPONSE TO REQUEST FOR PRIVILEGE LOG SERVED SUBJECT TO PENDING MOTION TO TRANSFER AND MOTION TO ABATE TO: PLAINTIFFS, JOSEPH RUIZ and AMANDA RUlZ, by and through their attorney of record, ETHAN L. SHAW, 1609 Shoal Creek Blvd., Suite 100, Austin, Texas 78701 COMES NOW, GALLAGHER BASSETT SERVICES, INC., one of the Defendants in the above-styled and numbered cause of action, and files this its Objections and Response to Plaintiffs' Request for Production, as follows: I. General Objections Defendant objects to Plaintiffs' Definitions to the extent the same exceed the scope of the Texas Rules of Civil Procedure. To this extent, Defendant objects to the use of definitions that go beyond the ordinary custom and usage or ordinary meaning of any particular word or phrase. To this extent, the Defendant will rely on the ordinary custom and usage and ordinary definition of all words and phrases contained in Plaintiffs' Request for Production. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 1 Defendant objects to the production of responsive documents at any location other than at the offices of its attorney of record, Ayers & Ayers, 4205 Gateway Drive, Suite 100, Colleyville, Texas 76034, or as and where the documents are maintained in the ordinary course of business. REQUEST FOR PRODUCTION 1. Your un-redacted claim file for Joseph Ruiz we claim in the form it is kept in the ordinary course of your business showing, where applicable, all entries, email addresses; name of persons making entries, name of persons receiving entries and identifying an persons having access to the file and/or notes [If kept electronically, please sort by date beginning with oldest date]. Response: Objection is made in that this request is overly broad, burdensome and not reasonably iimited in scope. Objection is made in that this request seeks information which is proprietary in nature. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense ofthis litigation and are therefore privileged. GALLAGHER BASSETI SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 2 Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); Nationa/ Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Lofin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491, 492 (Tex. 1995); In re Alford Ctievrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711,713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Without waiving the foregoing objections, documents over which no objections or claim of privilege are asserted, are provided. Response to Privilege Log Request: In response to Plaintiffs' Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit 8, based on the privileges asserted above. Exhibit A is a log of withheld attorney/client communications. Exhibit 8 is a log of documents withheld based on proprietary claims, attorney/client privilege, material gathered andlor prepared in anticipation of litigation, and attorney work product. 2. Your un-redacted claim notes and/or diary as kept in the ordinary course of your business showing day-to-day entries of the handling of Mr. Ruiz's we claim. [Please sort by date beginning with oldest date to newest}. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS~ REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 3 Objection is made in that this request seeks material g.athered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); Nationa/ Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.Z; Lotin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, lnc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Without waiving the foregoing objections, documents over which no objections or claim of privilege are asserted, are provided. Response to Privilege Log Request: In response to Plaintiffs' Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit B, based on the privileges asserted above. Exhibit A is a log of withheld attorney/client communications. Exhibit B is a log of documents withheld based on proprietary claims, attorney/client privilege. material gathered and/or prepared in anticipation of litigation, and attorney work product. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 4 3. All "Best Practices" manuals, guidelines, policies, procedures, rules, regulations, and/or instructions available for use by your claims handlers and/or adjusters involved in handling Joseph Ruiz's WC claim. Response: Objection in that this Request seeks information which is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. The Texas Supreme Court has held implementation of policies/procedures is not actionable in this type of litigation. As such, the only purpose of this Request is to harass or burden Defendant. Defendant also objects based on the fact such material is proprietary. Response to Privilege Log Request: You are advised Defendant withholds its claims handling policies and procedures. 4. All manuals, guidelines, policies, procedures, rules, regulations, or instructions available for use by your adjusters or claims personnel in determining whether claims will be paid, denied or terminated. Response: Objection is made in that this request is overly broad, burdensome and not reasonably limited in scope. Objection is made in that this request seeks information which is proprietary in nature, the disclosure of which would be harmful to this defendant and its related entities. Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. Objection in that this Request seeks information which is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. The Texas Supreme Court has held implementation of policieslprocedures GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 5 is not actionable in this type of litigation. As such, the only purpose of this Request is to harass or burden Defendant. Defendant also objects based on the fact such material is proprietary. Response to Privilege Log Request: You are advised Defendant withholds its claims handling policies and procedures. 5. A copy of each "Best Practices" guideline and/or claim manual used during the handling of Joseph Ruiz's we claim. Response: Objection in that this Request seeks information which is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. The Texas Supreme Court has held implementation of policies/procedures is not actionable in this type of litigation. As such, the only purpose of this Request is to harass or burden Defendant. Defendant also objects based on the fact such material is proprietary. Response to Privilege Log Reg uest: You are advised Defendant withholds its claims handHng policies and procedures. 6. A copy of all agreements (including "TPA" contacts) to which you are a party allowing you to handle Joseph Ruiz's WC claim. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. GALLAGHER BASSETT SERVICES, INC:S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 6 Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Lofin v. Martin, 776 S.VV.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed underTRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. HaU, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Opticaf, 988S.W.2d711, 713 (Tex. 1998). A party may not request "all notes J records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; DHlard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: Any contract to which Defendant is a party is withheld as proprietary. 7. The documents available to you at the time the Employer's First Report was filed that would assist you, directly or indirectly, in the prompt and fair handling of Joseph Ruiz's claim for WC wage benefits. Response: See documents produced. 8. A copy of each recorded conversation and/or image which relates to Joseph Ruiz'sWC claim. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 7 Response: Defendant objects to the phrase "image" as vague and ambiguous. If the meaning is photographic or video image, Defendant has none. Defendant objects to this Request in that it seeks attorney/client communications, attorney work product, and seeks materia! gathered and/or prepared in anticipation of litigation. 9. Copies of statements previously made by Joseph Ruiz that relate to his workers' compensation claim including any stenographic, digital, mechanical, electrical, or other type of recording of Joseph Ruiz's voice or image. Response: You are referred to Joseph Ruiz's Contested Case Hearing testimony and any deposition testimony given in this case. 10. A copy of each reserve worksheet and/or calculation for each reserve set relating to the WC claim made by Joseph Ruiz. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. GALLAGHER BASSETT SERVICES. INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 8 This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Latin v, Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRep 196.1; Loftin v. Martin, n6 S.W.2d at 148; Dillard Department Stores, Inc., v, Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes J records, memorandum, documents or other communications." American Optical, 988 S,W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit B, based on the privileges asserted above. Exhibit A is a log of withheld attorneylclient communications. Exhibit B is a Jog of documents withheld based on proprietary claims, attorney/client privilege, material gathered andlor prepared in anticipation of litigation, and attorney work product. 11. A copy of each calculation made to determine the amount to be paid to Joseph Ruiz as a result of the eCH Decision and Order dated October 25, 2011. Response: You are referred to Defendants' claim notes which contain payment records. 12. A copy of each calculation made showing the amounts paid to Joseph Ruiz's attorney. Aaron Allison relating to the we claim. Response: You are referred to Defendants' claim notes which contain payment records. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 9 13. All documents reflecting the amount billed; hourly rates and payment of attorney's fees by you in connection with the handling of this cause. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product andlor trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party andlor the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Latin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing exped ition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp.} 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 10 request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: Defendant does not at this time have responsive documents. However. it will withhold any attorney invoices it receives for defense of this claim. 14. A copy of petitions filed in Texas since January 1,2008 (wherein you were named as a party) containing allegations of alleged bad faith in failing to pay claims for WC benefits. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion, This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG -- PAGE 11 crnt.Z: Latin v, Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1 ; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, lnc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. 15. All investigative reports, letters, memorandum, or any communication or correspondence of any type whatsoever concerning the investigation of Plaintiff Joseph Ruiz's WC claim. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attomeywork product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 12 inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Lofin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not alfowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999);AmericanOpticai, 988S.W.2d711, 713 (Tex. 1998). A party may not request "a/l notes, records, memorandum, documents or othercommunications." American Optical, 988S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit 8, based on the privileges asserted above, Exhibit A is a log of withheld attorney/client communications. Exhibit 8 is a log of documents withheld based on proprietary claims, attorney/client privilege, material gathered and/or prepared in anticipation of litigation, and attorney work product. 16. The "pay sheet" or list of payments made or all payments made on Joseph Rulz's workers' compensation claims, including attorney's fees paid to his lawyer. Response: Defendant objects to this Request in that it seeks attorney/client communications and attorney work product. Without waiving the foregoing, payment records are being produced, excluding payments Defendant made to its own attorney. 17. The communications between you and any internal department and/or any non-governmental entity relating to alleged fraud concerning Joseph Rulz's WC claim. [Such as SJ.U.; NICS, etc.]. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 13 Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.Z; Latin v. Martin, 776 S.W.2d 145 (Tex. 1989).. What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. 18. The communication between you and any governmental entity relating to alleged fraud concerning Joseph Ruiz's WC claim. [Such as Texas OWC; TDI, etc.]. Response: Defendant has no responsive records. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 14 19. Your documents, if any, relating to Joseph Ruiz and/or his claim made for the purpose of satisfying the requirements of Section 701.051, Texas Insurance Code. Response: Defendant has no responsive documents. 20. A copy of each document showing each loss reserve set relating to Joseph Ruiz's WC claim. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected J either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, GALLAGHER BASSETT SERVICES, INC.'S OBJECTiONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 15 cmt.2; Lofin v. Martin, 776 S.W2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit B, based on the privileges asserted above. Exhibit A is a log of withheld attorney/client communications. Exhibit B is a log of documents withheld based on proprietary claims, attorney/client privilege, material gathered and/or prepared in anticipation of litigation, and attorney work product 21. Your requirements, guidelines and/or directives used to set loss reserves. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 16 This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429,431 (Tex. 1996); National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Lotin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v, Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W .2d at 713; K-Marl Corp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit e, based on the privileges asserted above. Exhibit A is a log of withheld attorney/client communications. Exhibit e is a log of documents withheld based on proprietary claims, attorney/clientpriviiege, material gathered and/or prepared in anticipation of litigation, and attorney work product. 22. A copy of any reinsurance treaty and/or indemnity agreement relating, in whole or in part, to the insuring agreement applicable to Joseph Ruiz's WC claim. Response: This Defendant does not have any responsive documents. 23. The communications between you and S & K Technologies applicable to Joseph Ruiz's WC claim. Response: You are referred to Defendants' production which contains records of these communications. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 17 24. The communications between you and any person relating to surveillance of Joseph Ruiz. Response: Defendant objects to this request in that it seeks attorney/client communications, attorney work product, material gathered and/or prepared in anticipation of litigation, and party communications. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit 8, based on the privileges asserted above. Exhibit A is a log of withheld attorney/cHent communications. Exhibit 8 is a log of documents withheld based on proprietary claims, attorney/client privilege, material gathered and/or prepared in anticipation of litigation, and attorney work product. 25. A copy of each document showing reimbursement to you for any payment you made regarding Joseph Ruiz's WC claim. Response: Objection is made in that this request is not relevant and not reasonably calculated to !ead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such pend ing motion. GALLAGHER BASSETT SERVICES, lNC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 18 This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Marl Corp. V. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); National Union Fire Insurance Company v, Valdez, 863 S.W.2d 458,461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Lotin v. Martin, 776 S.W.2d 145 (Tex. 1989). What the requesting party is seeking is a fishing expedition that is not allowed under TRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolei-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.W.2d 711, 713 (Tex. 1998). A party may not request "aU notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at713; K-MartCorp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Without waiving the foreg~ing, this Defendant does not have responsive documents. 26. All work papers, notes, communications and documents of any expert witness who may testify, or any expert witness who has written a report which is or will be relied upon in whole or in part by a testifying expert you have disclosed. Response: Objection is made in that this request improperly seeks discovery of expert documentation and exceeds the permissible scope of the Texas Rules of Civil Procedure. 27. All documents or tangible things prepare by any expert whom you expect to call as a witness, including but not limited to those which would include his or her report, factual observations, opinions, conclusions, photographs, field notes, calculations, models, and exhibits. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 19 Response: Objection is made in that this request improperly seeks discovery of expert documentation and exceeds the permissible scope of the Texas Rules of Civil Procedure. 28. Any treatises, articles, books, or other authoritative literature which any expert intends to rely on in his testimony in this case. Response: Objection is made in that this request improperly seeks discovery of expert documentation and exceeds the permissible scope of the Texas Rules of Civil Procedure. 29. A curriculum vita or resume for each individual whom you may call as an expert witness at the trial of this case. Response: Objection is made in that this request improperly seeks discovery of expert documentation and exceeds the permissible scope of the Texas Rules of Civil Procedure. 30. Your requirements, guidelines and/or directives used to set loss reserves. Response: Objection is made in that this request is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Objection is made in that this request seeks attorney/client communications not subject to disclosure. Objection is made in that this request seeks attorney work product and/or trial strategy. Objection is made in that this request seeks material gathered or prepared in anticipation of litigation. Objection is made to this request to the extent Defendants have pending motion to transfer venue. As venue is improper and the Court lacks jurisdiction, no discovery is proper to these Defendants. Defendants do not waive their pending motion and assert these objections subject to such GALLAGHER BASSETI SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PA.GE 20 pending motion. This request constitutes an improper fishing expedition by the requesting party and/or the requesting party's attorneys. This request encompasses party communications in defense of this litigation and are therefore privileged. Objection is made to this request as being overly broad, global, vague and harassing. K-Mart Corp. V. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); National Union Fire Insurance Company v; Valdez, 863 S.W.2d 458,461. (Tex. 1993). The request must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category. TRCP 196.1(b); TRCP 193, cmt.2; Latin v. Martin, 776 S.W.2d 145 (Tex. 1989). Whatthe requesting party is seeking is a fishing expedition that is not allowed underTRCP 196.1; Loftin v. Martin, 776 S.W.2d at 148; Dillard Department Stores, Inc., v. Hall, 909, S.W.2d 491,492 (Tex. 1995); In re Alford Chevrolet-Geo 977 S.W.2d 173,181 (Tex. 1999); American Optical, 988 S.VV.2d711,713 (Tex. 1998). A party may not request "all notes, records, memorandum, documents or other communications." American Optical, 988 S.W.2d at 713; K-Mart Cotp., 937 S.W.2d 431; Dillard, 909 S.W.2d at 49. A party may object to such a request and refuse to comply with it entirely. TRCP 193.cmt. 2. Response to Privilege Log Request: In response to Plaintiff's Request for Privilege Log, Defendants have withheld documentation as set forth in Exhibit A and Exhibit B, based on the privileges asserted above. Exhibit A is a log of withheld attorney/client communications. Exhibit B is a log of documents withheld based on proprietary claims, attorney/client privilege, material gathered and/or prepared in anticipation of litigation, and attorney work product. GALLAGHER BASSETT SERVICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTrFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 21 Respectfully submitted, AYER1 & AYERS By: I~ rbEANNE C. AYERS State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 817 -267-9009 telephone 817 -318-0663 facsimile ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE j hereby certify that on this the trtaay of h ,2012, a true and correct copy of the above and foregoing document was serv~d on lead counsel of record for Plaintiffs, via certified mail, return receipt requested. 'Cd D anne C. Ayers GALLAGHER BASSETT St;I~VICES, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR PRODUCTION AND RESPONSE TO REQUEST FOR PRIVILEGE LOG - PAGE 22 Privileged Communications Withheld ENTRY DATE : 05-18-2011 (15:35) SUBJECT; 001 FILE NOTES AUTHOR : VERGE,CHERYL ENTRY DATE ; 05-25-2011 (13:57) SUBJECT: 004 LEGAL AUTHOR : VERGE,CHERYL ENTRY DATE : 05-25-2011 (14:37) SUBJECT: 004 LEGAL 1>.UTHOR : VERGE,CHERYL ENTRY DATE : 06-27-2011 (07:58) SUBJECT: 004 LEGAL AUTHOR : VERGE,CHERYL ENTRY DATE : 07-27-2011 (08:07) SUBJECT; 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 07-27-2011 (15:26) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 07-27-2011 (15:35) SUBJECT: 004 LEGl>.L AUTHOR : BAKER,FLORENCE ENTRY DATE : 07-28-2011 (09:43) SUBJECT: 004 LEGAL AUTHOR : RODRIGUEZ, ELIZABETH ENTRY DATE : 08-02-2011 (11:54) SUBJECT: 004 LEGAL AUTHOR : COHNEN, C1>ROL ENTRY DATE : 08-04-2011 (11:56) SUBJECT: 004 LEGAL AUTHOR : LABBE, I-JATALYA El>.TTRYDATE ; 08-15-2011 (15:53) SUBJECT: 004 LEG~.L AUTHOR : LABBE,NATALYA ENTRY DATE : 08-26-2011 (15:30) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DJl.TE : 08-29-2011 (17:23) SUBJECT: 019 PLAN OF ACTION AUTHOR : LABBE, NATAL YA ENTRY DATE : 08-30-2011 (14:36) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATliliYA ENTRY DATE : 08-31-2011 (12:36) SUBJECT: 001 FILE NOTES AUTHOR : LABBE, Nl'.TALYA ENTRY DATE : 08-31-2011 (15:16) SlJ"BJECT: 004 LEGAL AUTHOR : LABBE,NATALYA &~RY DJI.TE : 08-31-2011 (15:17) SUBJECT: 004 LEGAL AUTHOR ; L.ll.BBE,Nl'.TJI.LYJI. ENTRY DATE : 09-02-2011 (10:45) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 09-21-2011 (08:00) SlJ"BJECT: 007 SUPERVISION AUTHOR : BAKER,FLORENCE ENTRY DATE : 11-02-2011 (ll :10) SUBJECT: 004 LEGAL AUTHOR : LABBE f I>JATALYA ENTRY DATE ; 11-04-2011 (10:02) SUBJECT: 019 PhllliOF ACTI.oN AUTHOR : LABBE,NATALYA ENTRY DATE : 11-16-2011 (13:23) Su'"BJECT: 004 LEGAL AUTHOR : COHD.J"ENI CAROL ENTRY DATE : 11-16-2011 (13:24) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL E.1\fTRYDATE : 11-16-2011 (13:30) SUBJECT: 004 LEGAL AUTHOR : COENEN,CAROL ENTRY DATE : 11-17-2011 (12:28) SUBJECT: 004 LEGAL ImTHOR ; COHNEN, C.lI.ROL ENTRY D.1'.TE: 11-17-2011 (12:35) SUBJECT: 004 LEGAL AUTHOR : COHl\fENI CAROL ENTRY DATE : 11-17-2011 (lS:38) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL EXHIBIT "A" ENTRY DATE : 11-29-2011 (10:20) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-29-2011 (15:23) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 11-2.9-2011 (16:35) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-30-2011 (10:37) SUBJECT: 001 FILE NOTES AUTHOR : LABBE,NATALYA ENTRY DATE : 12-02-2011 (12:37) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12-02-2011 (17:56) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-05-2011 (12:59) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12-15-2011 (12:40) SUBJECT: 004 LEGAL AUTHOR : COHNEN f CAROL ENTRY Dll.TE: 12-15-2011 (13:12) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 12-15-2011 (13 :14) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12-22-2011 (09:25) SUBJECT: 019 PLAN OF ACTION AUTHOR : LABBE,NATALYA ENTRY DATE : 01-11-2012 (12:45) SUBJECT: 004 LEGl'.L AUTHOR : COHNEN, CAROL ENTRY DATE : 02-06-2012 (11:56) SUBJECT: 004 LEGAL AUTHOR ; LABBE, NATAL YA ENTRY DATE : 02-06-2012 (12:15) SUBJECT: 019 PLAN OF ACTION AUTHOR : .LABBE ,Nl'.TALYA ENTRY Dll.TE: D2-16-2012 (15:08) SUbJECT: 004 LEGAL AUTHOR : LABBE f NATALYA ENTRY DATE : 02 -27-2012 (08:19) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 02-27-2012 (08:25) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 02-27-2012 (08:25) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 02-27-2012 (08:33) SUBJECT; 004 LEGAL AUTHOR : LABBE, NATAL YA ENTRY DATE : 02-27-2012 (O8:34) S1:JBJECT:004 LEGAL AUTHOR : LABBE,NATALYA All Claim Notes Withheld The following claim notes were produced in a redacted form and were withheld based on privilege, relevance, overbroad, burdensome, harassing, and other objections as set forth in detail in the discovery responses. ENTRY DATE : 03-29-2011 (11:39) S1:JBJECT: 010 COVERAGE/COMPENSABILITY AUTHOR : KING,MELISSA ENTRY DP.TE : 04-04-2011 (16:15) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERl\TED ENTRY DATE : 04-04-2011 (16:15) SUBJECT: 005 RESERVING AUTHOR : SYSTEM GENERATED ENTRY DATE : 04-06-2011 (13:37) SUBJECT: 005 RESERVING AUTHOR : MIRA GENERATED ENTRY DATE : 04-08-2011 (14:42) SUBJECT: 010 COVERAGE/COMPENSABILITY AUTHOR : VERGE,CHERYL ENTRY DATE : 05-18-2011 (14:21) SUBJECT: 005 RESERVING AUTHOR : VERGE,CHERYL ENTRY DATE : 05-18-2011 (14:23) SUBJECT: 005 RESERVING AUTHOR : VERGE,CHERYL ENTRY DATE : 05-18-2011 (15:17) SUBJECT: 019 PLJ...NOF ACTION AUTHOR : VERGE, CHERYL ENTRY DATE : 05-18-2011 (15:35) SlJBJECT: 001 FILE NOTES AUTHOR : VERGE,CHERYL ENTRY DATE : 05-25-2011 (13:36) SUBJECT: 005 RESERVING AUTHOR : MIRA GENERATED ENTRY DATE : 05-25-2011 -(13:57) SUBJECT: 004 LEGAL AUTHOR : VERGE,CHERYL ENTRY DATE : 05-25-2011 (14:37) SUBJECT: 004 LEGAL .l\UTHOR : VERGE,CHERYL ENTRY DATE : 06-27-2011 (07:58) SUBJECT: 004 LEGAL AUTHOR : VERGE, CHERYL ENTRY DATE : 07-27-2011 (08:07) SUBJECT: 004 LEGAL AUTHOR ; CO}<:NEN,CAROL ENTRY DJ.SE : 07-27-2011 (15:26) SUBJECT: 004 LEG.1U... AUTHOR : COHNEN, CAROL ENTRY DATE : 07-27-2011 (15:35) SUBJECT: 004 LEGAL AUTHOR : BJl..KER,FLORENCE ENTRY DATE : 07-28-2011 (09:43) SUBJECT: 004 LEGAL AUTHOR : RODRIGUEZ, ELIZABETH ENTRY DATE : 08-02 -2011 (11:54) SUBJECT: 004 LEGAL AUTHOR : COENEN,CAROL E1.'"TRYDATE : 08-04-2011 (11:56) SUBJECT; 004 LEGAL AUTHOR : L.l:I.BBE,NATALYA ENTRY DATE ; 08-15-2011 (15:53) SUBJECT; 004 LEGAL AUTHOR : LABBE, NAT.l:I.LY.l:I. ENTRY DATE : 08-26-2011 (15:30) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 08-29-2011 (17:23) SUBJECT: 019 PLAN OF ACTION AUTHOR : LABBE, NAT.l\LYA ENTRY DATE : 08-29-2011 (18:20) SUBJECT: 005 RESERVING AUTHOR : SYSTEM GENERATED E~JTRY DATE : 08-29-2011 (18:20) SUBJECT: 005 RESERVING AUTHOR : L.r;.BBE,NATALYA EXHIBIT "8" ENTRY DATE : 08-30-2011 (14:36) SUBJECT: 004 LEGAL AUTHOR ; LABBE,NATALYA ENTRY DATE ; 08-31-2011 (12:36) SUBJECT: 001 FILE NOTES AUTHOR : LPillBE,NATALYA ENTRY DATE : 08-31-2011 (15:16) SUBJECT: 004 LEG~l1L AUTHOR : LABBE,NATALYA ENTRY DATE : 08-31-2011 (15:17) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY D./I.TE: 09-02-2011 (10;45) SUBJECT: 004 LEGJl..L AUTHOR : LABBE,NATALYA ENTRY DATE : 09-21-2011 (08:00) SUBJECT! 007 SUPERVISION AUTHOR : B.~KER,FLORENCE ENTRY DATE : 11-02-2011 (11:10) SUBJECT: 004 LEGJl..L AUTHOR : LABBE, NJl..TALYA The following claim notes were withheld in their entirety based on privilege, relevance, overbroad, burdensome, harassing, and other objections as set forth in detail in the discovery responses. ENTRY DATE: 11-02-2011 (13:21) SUBJECT: 005 RESERVING AUTHOR : MIRA GENERATED ENTRY DATE : 11-03-2011 (16:08) SUBJECT: 002 MEDICAL AUTHOR : LABBE, NAT2~.LYA ENTRY DATE : 11-04-2011 (09:11) SUBJECT; 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-04-2011 (09:12) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-04-2011 (09:21) SUBJECT: 001 FILE NOTES AUTHOR ; L..~BBE,NATALYA ENTRY DATE : 11-04-2011 (09:31) SUBJECT: 004 LEGAL AUTHOR : ANDERSON,DENISE ENTRY DATE : 11-04-2011 (09:41) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-04-2011 (09:45) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 11-04-2011 (10:01) SUBJECT: 005 RESERVING AUTHOR : LABBE, NATALYA ENTRY DATE ; 11-04-2011 (10:02) SUBJECT: 019 PLAN OF ACTION AUTHOR: LABBE,NATALYA ENTRY DATE: 11-04-2011 (14:46) SUBJECT: 007 SUPERVISION AUTHOR : BAKER,FLORENCE ENTRY DATE : 11-04-2011 (15:07) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 11-04-2011 (15:11) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - TAMPA, FL ENTRY DATE : 11-07-2011 (08:21) SUBJECT: 004 LEGAL AUTHOR : ANDERSON, DENISE ENTRY DATE : 11-07-2011 (08:44) SUBJECT: 005 RESERVING AUTHOR : LABBE,NATALYA ENTRY DATE ; 11-07-2011 {08:48} SUBJECT: 005 RESERVING AUTHOR : SYSTEM GENERATED ENTRY DATE : 11-07-2011 (09:26) SUBJECT: 001 FILE NOTES AUTHOR : LABBE,NATJl.~YA ENTRY DATE: 11-07-2011 (09:29) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-07-2011 (12:28) SUBJECT; 001 FILE NOTES AUTHOR: LABBE,NATALYA ENTRY DATE : 11-07-2011 (14:03) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-07-2011 (16:05) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-08-2011 (11:11) SUBJECT: 015 N..•.JRSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE : 11-08-2011 (13:20) SUBJECT: 005 RESERVING AUTHOR : MIRA GENERATED ENTRY DATE : 11-09-2011 (07:13) SUBJECT: 004 LEGAL AUTHOR : COHNEN t CAROL ENTRY DATE : 11-09-2011 (07:48) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY Dp.TE : 11-09-2011 (08:21) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 11-09-2011 (17 :10) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE : 11-10-2011 (17: 11) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - TAMPA, FL ENTRY DATE : 11-10-2011 (17:11) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - TAMPA, FL ENTRY DATE : 11-13-2011 (03: 10) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY .DATE : 11-13-2011 (03:10) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 11-13-2011 (03: 26) SUBJECT: 015 NLTRSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 11-13-2011 (03: 31) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 11-13-2011 (03: 37) SUBJECT: 015 NURSE NOTES Au'THOR : SYSTEM GENERATED ENTRY DATE : 11-13-2011 (03:40) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DlI.TE: 11-13-2011 (14:02) SUBJECT: 001 FILE NOTES AUTHOR : ~~IREZ,PATRICIA ENTRY DATE : 11-15-2011 (11:11) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE : 11-15-2011 (11:11) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE : 11-16-2011 (13 :22) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-16-2011 (13 :23) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-16-2011 (13: 24) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 11-16-2011 (13:30) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 11-16-2011 (15 :14) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-17-2011 (12: 28) SUBJECT: 004 LEGAL p,UTHOR : COHNEN,CAROL ENTRY DATE : 11-17-2011 (12: 29) SUBJECT: 004 LEGAL AUTHOR : COHNEN, Cll.ROL ENTRY DATE : 11-17-2011 (12:35) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-17-2011 (15:38) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE: 11-17-2011 (18:10) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE: 11-17-2011 (18:10) SUBJECT: 015 NLTRSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE: 11-18-2011 (09:52) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE: 11-18-2011 (09:54) SUBJECT: 001 FILE NOTES AUTHOR : SYST&~ GENERATED ENTRY DATE: 11-18-2011 (09:55) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED lli~TRYDATE: 11-18-2011 (09:55) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED E~~RYDATE : 11-18-2011 (09:56) SuoJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (13:09) SUBJECT: 015 WIJRSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE; 11-18-2011 (13:09) SUBJECT: 015 NURSE NOTES AUTHOR : COVENTRY - HAZELWOOD, MO ENTRY DATE: 11-18-2011 (14:31) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE: 11-18-2011 (14:31) SUBJECT: 004 LEG~L AUTHOR : LABBE, NAT~LYA ENTRY DATE: 11-18-2011 (14:31) SUBJECT: 004 LEGAL AUTHOR; LABBE,NATALYA ENTRY DATE: 11-18-2011 (14:34) SD"BJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (14:35) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 11-18-2011 (14:35) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (14:35) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENE~3ED ENTRY DATE: 11-18-2011 (14:36) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (21:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE; 11-18-2011 (21:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (21:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (21:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-18-2011 (2.1:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENE~.TED ENTRY DATE: 11-18-2011 (21:18) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-19-2011 (21:25) S(;13JECT:015 NURSE NOTES AUTHOR : SYSTEM GENEPATED ENTRY DATE: 11-19-2011 (21:25) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 11-19-2011 (21:25) SUBJECT: 015 NURSE NOTES AUTHOR : SYSTR~ GENERATED ENTRY DATE: 11-21-2011 (16:03) SUBJECT: 002 MEDICl>L AUTHOR : COHNEN,CAROL &"JTRY DATE: 11-22-2011 (14:31) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 11-23-2011 (12:33) SUBJECT: 001 FILE NOTES AUTHOR : COENEN,CAROL ENTRY DATE : 11-23-2011 (12:34) SUBJECT: 001 FILE NOTES AUTHOR : COHNEN,CAROL ENTRY DATE : 11-23-2011 (14:50) SUBJECT: 002 MEDICAL AUTHOR : LABBE, NATAL YA ENTRY DATE : 11-29-2011 (10:20) St.'BJECT:004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 11-29-2011 (15:23) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATAL YA ENTRY DATE : 11-29-2011 (15:24) SUBJECT: 010 COVERAGE/COMPENS~~ILITY AUTHOR : LABBE, NATAL YA ENTRY DATE : 11-29-2011 (15:36) SUBJECT: 007 SUPERVISION .l1..UTHOR: BAKER/FLORENCE ENTRY DATE : 11-29-2011 (16:35) SUBJECT: 004 LEGAL AUTHOR : LABBE f NATAL YA ENTRY DATE : 11-30-2011 (10:08) SUBJECT: 010 COVERAGE/COMPENSABILITY AUTHOR : LABBE,NATALYA ENTRY DATE : 11-30-2011 (10:37) SUBJECT: 001 FILE NOTES AUTHOR : LABBE,NATALYA ENTRY DATE : 11-30-2011 (12:37) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12-01-2011 (13:11) SUBJECT: 004 LEGAL AlJTHOR : COHNEN,CAROL ENTRY DATE ; 12-02-2011 (12:37) SUBJECT: 004 LEGAL AUTHOR : COENEN, CAROL ENTRY DATE ; 12-02-2011 (17:56) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-02-2011 (17:58) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATAL YA ENTRY D,Z\..TE: 12-04-2011 (22:25) SUBJECT: 004 LEGJ..L AUTHOR ..LABBE ,NATALYA ENTRY DATE : 12-04-2011 (22:27) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-04-2011 (22:27) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-04-2011 (22:28) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-04-2011 (22:28) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-04-2011 (22:28) SUBJECT: 004 LEGJI...L AUTHOR : LABBE,NATALYA ENTRY DATE : 12-05-2011 (12:23) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-05-2011 (12:59) SUBJECT: 004 LEGAL AUTHOR : COHl\IEN,CAROL EI<.TTRYDATE : 12-06-2011 (09:40) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 12-06-2011 (11:29) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYJ>_ ENTRY DATE : 12-06-2011 (19:34) SUBJECT: 001 FILE NOTES AUTHOR : LABBE,NATALYA ENTRY DATE ; 12-08-2011 (11:06) SUBJECT: 004 LEGAL AUTHOR ; COENEN, CAROL ENTRY DATE : 12-08-2011 (11:08) SUBJECT: 001 FILE NOTES AUTHOR : COENEN, CAROL ENTRY DATE : 12-09-2011 (12:21) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 12-12-2011 (10:41) SUBJECT: 001 FILE NOTES AUTHOR : COHNEN,CAROL ENTRY DATE : 12-13-2011 (14:55) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-14-2011 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-14-2011 (20:04) SUBJECT:. 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-15-2011 (12: 40) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12-15-2011 (13:12) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 12 -15-2011 (13:14) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 12-16-2011 (14:21) Sl.i'BJECT: 001 FILE NOTES AUTHOR : COHNEN,CAROL ENTRY DATE : 12-1£-2011 (14:44) Su"'BJECT;002 MEDICAL AUTHOR : COHNEN, CAROL ENTRY DATE : 12-16-2011 (15:01) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA E1i"TRYDATE : 12-20-2011 (12:46) SUBJECT: 001 FILE NOTES AUTHOR : COHNEN, CAROL ENTRY DATE : 12 -21-2011 (12:10) SUBJECT: 004 LEGAL AUTHOR : COHNEN, CA.~OL ENTRY DATE : 12-21-2011 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-21-2011 (20:04) SUBJECT: 001 FILE NOTES AL"THOR : SYSTEM GENER..Zl.TED ENTRY DATE : 12-22-2011 (09:23) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-22-2011 (09:25) SUBJECT: 019 PLAN OF ACTION AUTHOR : LABBE,NATALYA ENTRY DATE : 12-22-2011 (09:27) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 12-22-2011 (09:29) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERJI.TED ENTRY DP.TE : 12-22-2011 (09:30) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-22-2011 (09:30) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-22-2011 (09:31) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 12-22-2011 (09:31) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED EJl..TTRYDATE : 12-22-2011 (09:31) SUBJECT: 004 LEGAL AUTHOR ; LJ>..13BE,NJ>..TALYA ENTRY DATE : 12-22-2011 (09:47) SUBJECT: 005 RESERVING AUTHOR ; LABBE,NATALYA ENTRY DATE : 12-22 -2011 (09:51) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ElI."TRYDATE ; 12-22-2011 (09:52) St.JBJECT:001 FILE NOTES AL"THOR : LABBE,NATALYA ENTRY DATE : 12-27-2011 (10:18) SUBJECT: 004 LEGAL AUTHOR : COHNEN, ClI.ROL ENTRY DATE : 12-27-2011 (10:33) SUBJECT: 004 LEGAL AUTIlOR : COHNEN, CAROL ENTRY DATE : 12-28-2011 (10:21) SUBJECT: 004 LEGl>..L AUTHOR : COHNEN,CAROL ENTRY DATE ; 12-28-2011 (20;04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE ; 12-28-2011 (20;04) SUBJECT: 001 FILE NOTES Au'"THOR: SYSTEM GENERATED ENTRY DATE : 01-03-2012 (11:03) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 01-03-2012 (12:46) SlJBJECT: 002 MEDICAL .•IUTHOR : COHNEN,CAROL ENTRY DATE : 01-03-2012 (12:47) S1.JBJECT:002 MEDICAL AUTHOR : COHNEN, CAROL ENTRY DATE : 01-04-2012 (20;04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 01-04-2012 (20:04) SUBJECT; 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 01-05-2012 (15;37) SUBJECT: 002 MEDICAL AUTHOR ; L.l\BBE,NATJI.LYA ENTRY DATE : 01-05-2012 (15:40) SUBJECT: 001 FILE NOTES AUTHOR : LABBE, NJI.TALYA ENTRY DATE : 01-06-2012 (16:06) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATALYA ENTRY DATE : 01-11-2012 (12:45) StJBJECT: 004 LEGAL AUTHOR : COHNEN, CAROL ENTRY DATE : 01-16-2012 (12;30) SUBJECT: 004 LEGAL AUTHOR : COHNEN,Ck~OL ENTRY DATE: 01-16-2012 (16:31) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 01-16-2012 (16 :31) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 01-16-2012 (16:32) S-eJBJECT:001 FILE NOTES AUTHOR : SYSTEM GE}ffiPATED E~~RY DATE: 01-16-2012 (16;32) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENER.l\TED ENTRY DATE: 01-16-2012 (16;32) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE: 01-17-2012 (12:47) SUBJECT: 004 LEGAL AUTHOR: COHNEN,CAROL ENTRY DATE: 01-17-2012 (15:59) SUBJECT: 010 COVERAGE/COMPENSABILITY AUTHOR: COHNEN,CAROL ENTRY DATE: 01-18-2012 (20:05) SUBJECT: 001 FILE NOTES AD~HOR : SYSTEM GENERATED ENTRY DATE: 01-18-2012 (20:05) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GE~~RF3ED E~~RY DATE: 01-23-2012 (12:17) SUBJECT: 004 LEGAL AUTHOR: COHNEN,CAROL ENTRY DATE: 01-25-2012 (12;24) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE: 01-25-2012 (17:46) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE: 01-25-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE: 01-27-2012 (12:12) SUBJECT: 004 LEG.~ AUTHOR : COIDIEN,C&"WL ENTRY DATE : 01-30-2012 (08:26) SUBJECT; 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 01-30-2012 (08:27) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL Et.'TRYDATE : 02-01-2012 (20:11) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-03-2012 (12;07) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENER..lI..TED ENTRY DATE : 02-03-2012 (12:08) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENER..lI..TED ENTRY DATE : 02-03-2012 (12:08) SUBJECT: 001 FILE NOTES "lI..UTHOR: SYSTEM GENERATED ENTRY DATE : 02-03-2012 (12;09) SUBJECT; 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 02-03-2012 (12:09) SUBJECT: 001 FILE NOTES AUTHOR ; LABBE, NATAL YA ENTRY DATE : 02-06-2012 (11 :56) SUBJECT: 004 LEGAL AUTHOR : LABBE f NATALYll. ENTRY DATE : 02-06-2012 (12:05) SUBJECT: 002 MEDICAL AUTHOR : LP.BBE,NATALYA ENTRY DATE : 02-06-2012 (12:08) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 02-06-2012 (12:10) SUBJECT: 001 FILE NOTES AUTHOR : LABBE I NATAL YA ENTRY DATE : 02-06-2012 (12:15) SUBJECT: 019 PLAN OF ACTION AUTHOR ; LABBE,NATALYA ENTRY DATE : 02-07-2012 (09:57) SUBJECT: 001 FILE NOTES AUTHOR : LABBE,NATALYA ENTRY DATE : 02-08-2012 (17:52) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENER..lI..TED ENTRY DATE : 02-08-2012 (17:52) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17:53) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17 :53) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17:54) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17;54) SUBJECT; 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17;54) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (17:54) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 02-08-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-08-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR ; SYSTElVIGENERATED ENTRY DATE : 02-09-2012 (12:35) SUBJECT: 004 LEGllL AUTHOR : COHNEN, cxnor, ENTRY DATE : 02-15-2012 (15:38) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 02-15-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GE])'TER..lI.TED ENTRY DATE : 02-15-2012 (20; 04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-16-2012 (13:29) SUBJECT; 007 SUPERVISION AUTHOR : B}\...KER,FLORENCE ENTRY DATE : 02 -16-2012 (15:08) SUBJECT: 004 LEGAL AUTHOR : LABBE,Nfl..TALYA ENTRY DATE : 02-22-2012 (11:33) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-22-2012 (1l:33) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-22-2012 (11:34) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-22-2012 (11:34) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-22-2012 (11:34) StJBJECT: 004 LEGAL AUTHOR : LABBE,NAT}\LYA ENTRY DATE : 02-22-2012 (20:05) SUBJECT: 001 FILE NOTES AUTHOR : SYSTE..1>1GENERATED ENTRY DATE : 02-22-2012 (20:05) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-27-2012 (08:19) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATJ>..LYA ENTRY DATE : 02-27-2012 (08:25) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DATE : 02-27-2012 (08:25) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTRY DA.TE : 02-27-2012 (08:33) SUBJECT: 004 LEGAL AUTHOR : LABBE,NATALYA ENTR~ DATE : 02-27-2012 (08:34) SlJBJECT: 004 LEGAL AUTHOR : LABBE,NATIILYA ENTRY DATE : 02-28-2012 (09:31) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-28-2012 (09:32) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-28-2012 (09:32) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-28-2012 (09:33) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENER.~TED ENTRY Dl'.TE: 02-28-2012 (09:33) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYF. ENTRY DATE : 02-28-2012 (13:45) SUBJECT: 004 LEGAL AUTHOR : COHNEN,CAROL ENTRY DATE : 02-28-2012 (13:52) SUBJECT: 002 MEDICAL AUTHOR : LABBE,NATJ>..LYA ENTRY DATE : 02-28-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 02-28-2012 (20:04) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERl'"TED ENTRY DATE : 03-01-2012 (11:13) SUBJECT: 004 LEGAL AUTHOR : LABBE, NATALYA ENTRY DATE : 03-01-2012 (11:15) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GE...1\JERATED ENTRY DATE : 03-01-2012 (11:16) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GEN""ERATED ENTRY DATE : 03-01-2012 {11:16} SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED ENTRY DATE : 03-01-2012 (11:17) SUBJECT: 001 FILE NOTES AUTHOR : SYSTEM GENERATED Appendix 1111 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-12-00750-CV In re Everest National Insurance Company; Gallagher Bassett Services, Inc.; and Cheryl Verge ORIGINAL PROCEEDING FROM HAYS COUNTY O R D E R PER CURIAM Relators have filed an “Emergency Petition for Writ of Mandamus,” complaining of the trial court’s orders granting the real parties in interest’s objections to Florence Baker’s affidavit and motion to compel and seeking to stay the underlying proceeding until we resolve the merits of the petition. See Tex. R. App. P. 52.3, 52.10. We grant the motion for emergency relief and stay the underlying proceeding. The Court asks that the real parties in interest file a response to the petition for writ of mandamus on or before November 28, 2012. It is ordered November 15, 2012. Before Justices Puryear, Pemberton and Henson Appendix 1212 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-12-00750-CV In re Everest National Insurance Company; Gallagher Bassett Services, Inc.; and Cheryl Verge ORIGINAL PROCEEDING FROM HAYS COUNTY M E M O R A N D U M O P I N I O N Relators filed a petition for writ of mandamus and motion for temporary relief. See Tex. R. App. P. 52.8. We have reviewed the petition, response, and record, and after careful review, we deny the petition for writ of mandamus. We dismiss the motion for temporary relief. ______ David Puryear, Justice Before Justices Puryear, Pemberton and Rose Filed: January 18, 2013