Opinion
No. 02-06-363-CV
Delivered: October 4, 2007.
Appeal from the 141st District Court of Tarrant County.
PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. Introduction
Appellants Robert Gene Cunningham, individually and as representative of the estate of Patricia Maudine Cunningham, deceased, Tracy Jeanne Cunningham Lang, and Robin Lee Cunningham Bishop appeal from the trial court's grant of summary judgment in favor of Appellee Blue Cross Blue Shield of Texas ("BCBSTX"). We affirm.
II. Factual and Procedural Background
We recognize that for the purposes of the summary judgment proceedings below BCBSTX agreed to accept as true all of the facts asserted in Appellants' Sixth Amended Petition. However, this "stipulation" in no way served to bind BCBSTX to any of the legal conclusions contained in that pleading. Therefore, to the extent that Appellants now urge us to adopt those legal conclusions as "agreed upon facts," we decline to do so.
In May 2003, Robert's wife, Patricia, began suffering from trigeminal neuralgia, a disorder that caused her such intense pain on the left side of her jaw that she was unable to eat or drink. After caring for his wife at the couple's home for approximately one week, Robert admitted Patricia to Plaza Medical Center for treatment. By this time, Patricia had become malnourished and was in need of nutritional support by a feeding tube. However, during her stay at Plaza, doctors did not provide Patricia with non-oral feedings. She eventually died.
At the time of her illness, Patricia was provided health coverage by the Texas Health Insurance Risk Pool ("the Pool"), a legislatively created pool aimed at providing otherwise uninsurable individuals with access to health insurance. See TEX. INS. CODE ANN. § 1506.101(a)(1) (Vernon Supp. 2006); Act of May 27, 1989, 71st Leg., R.S., ch. 1094, 1989 Tex. Gen. Laws 4477. BCBSTX served as the "administrator" and "case manager" under the terms of Patricia's health insurance policy. The policy's outline of coverage provided that BCBSTX, as administrator, would pay "the benefits of the [p]olicy for [c]overed [e]xpenses incurred by the [i]nsured [p]ersons" and, as case manager, would "work with [the insured] and [the insured's] physician to determine the appropriate level of care" needed.
As a means of paying claims under the policy, BCBSTX independently contracted with a number of health care facilities to establish flat reimbursement rates for all medical services and procedures provided by those facilities to Pool members. Plaza Medical Center's parent company, HCA, Inc., entered into such an agreement with BCBSTX and agreed to have BCBSTX reimburse all of its hospitals in the Dallas-Fort Worth area, including Plaza, for its services at Medicare DRG ("diagnostic related group") rates.
Medicare DRG rates are the flat rates Medicare pays for medical care and services provided to Medicare patients by health care providers.
After Patricia's death, Robert and his two daughters, referred to collectively hereinafter as "Appellants," filed the underlying suit against BCBSTX alleging claims of negligence, breach of contract, fraud, fraudulent inducement, negligent misrepresentation, intentional infliction of emotional distress, breach of the duty of good faith and fair dealing, and violations of the DTPA and former article 21.21 of the insurance code. In their petition, Appellants alleged that BCBSTX failed to (1) disclose the material terms of its reimbursement agreement with Plaza and (2) provide adequate case management under the terms of Patricia's policy. Appellants asserted that had they been informed that BCBSTX only reimbursed Plaza for its services at Medicare DRG rates, which Appellants contend are too low and below cost, they either would not have agreed to be covered under the policy or would have sought medical care for Patricia at another facility — arguing that BCBSTX's reimbursement scheme created a financial disincentive for Plaza to provide its patients with adequate medical care.
Appellants also sued Plaza Medical Center, four of Patricia's treating physicians, and the registered nurse responsible for her care during her hospitalization for medical negligence. However, those claims are not at issue in this appeal.
On March 6, 2006, BCBSTX filed a traditional motion for summary judgment asserting that, as a matter of law, (1) "plaintiff's theory of causation is too remote and does not constitute legal causation . . ." and (2) it had no duty to disclose to Appellants its contractual reimbursement rates with Plaza. (emphasis in original). Appellant filed special exceptions to the motion as well as objections to BCBSTX's summary judgment proof. Appellants also filed a response and a cross-motion for summary judgment on all of their respective causes of action. After conducting a hearing on both motions, the trial court denied Appellants' cross-motion and granted summary judgment in favor of BCBSTX without specifying the grounds. BCBSTX then severed this action from the remaining claims being asserted against the other defendants and this appeal followed.
III. Issues Presented
Appellants now contend in three issues that the trial court erred by granting summary judgment in favor of BCBSTX and by denying them summary judgment relief on their cross-motion. Additionally, Appellants have filed two motions with this court seeking to strike various portions of BCBSTX's appellate brief. BCBSTX has also filed a motion to strike the affidavit of Robert Cunningham which Appellants filed in the trial court in support of their response and cross-motion. Before turning to the merits of this appeal, we will first address the pending motions.
This issue is sufficient to challenge the summary judgment on all grounds upon which it could have been granted. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); see also Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (reaffirming Malooly).
IV. Motions to Strike
Appellants' motions complain that various portions of BCBSTX's brief do not comply with the rules of appellate procedure. Specifically, they contend that BCBSTX's "Statement of the Case" and "Statement of Facts" sections lack appropriate record references, are argumentative, and contain statements of fact that are not contained in the record. They also contend that the "Argument" section inappropriately refers to deposition testimony that is not part of the record. We have reviewed BCBSTX's brief and do not find the type of flagrant violations that would justify striking the complained-of portions. See TEX. R. APP. P. 38.9(a). Because appellate briefs are meant to acquaint a court with the issues in a case and to present argument that will enable the court to decide the case, we construe the briefing rules liberally and only require substantial compliance. TEX. R. APP. P. 38.9. Here, despite Appellants' complaints, we conclude that BCBSTX's brief substantially complies with the briefing rules and, accordingly, deny Appellants' motions. However, we note that we have not considered, for any purpose, any factual assertions made by BCBSTX in its brief that are not supported in the record, nor has BCBSTX's reference to them played any part in our disposition of this case.
Additionally, we find it unnecessary to consider BCBSTX's motion to strike the Cunningham affidavit because, as illustrated by our analysis below, none of the statements contained therein create a fact issue with respect to any of the summary judgment grounds set forth in BCBSTX's motion. Thus, even if we consider the contents of the affidavit, our resolution of the issues presented in this appeal remain the same. Having dispensed with these motions, we now review the propriety of the trial court's order.
V. Discussion
A. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215.
When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
When a trial court grants the defendant's motion without specifying the ground upon which it based it ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). However, when both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Valence Operating Co., 164 S.W.3d at 661. The reviewing court should render the judgment that the trial court should have rendered. Id. B. Summary Judgment Grounds
As a preliminary issue, Appellants complain that BCBSTX's motion failed to set forth specific summary judgment grounds with respect to each of their asserted causes of action. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (plurality op.).
Rule 166a(c) states that a "motion for summary judgment shall state the specific grounds therefor." TEX. R. CIV. P. 166a(c). Grounds are sufficiently specific so long as they provide the nonmovant with "fair notice" of the basis upon which judgment is sought. Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 773 (Tex. 1978), overruled on other grounds by City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 673 (Tex. 1979); Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex.App.-Austin 1995, writ denied). A defendant-movant is not entitled to summary judgment on the entirety of a nonmovant-plaintiff's case unless the motion addresses each cause of action asserted by the nonmovant. Sledge v. Mullin, 927 S.W.2d 89, 95 (Tex.App.-Fort Worth 1996, no writ).
Here, BCBSTX's motion states in pertinent part as follows:
[BCBSTX] moves for summary judgment dismissal of all plaintiff's claims based on no duty and no legal causation.
. . . .
BCBSTX respectfully submits that the Court has power to grant a complete summary judgment on two questions of law that independently undercut plaintiff's claims. First ground: BCBSTX moves for complete summary judgment because the plaintiff's theory of causation is too remote and does not constitute legal causation under Texas law. BCBSTX as a matter of law did not legally cause the alleged injuries or any of the alleged medical or facility negligence. The necessary elements of causation fails as a matter of law. Second ground: BCBSTX as a legal threshold did not have a legal duty to affirmatively provide its contractual reimbursement rates with Texas hospitals to THIRP members, nor did it have any other duty to plaintiff alleged to have caused damages to plaintiff in the Petition as a matter of law. (emphasis in original).
This language quite clearly establishes that BCBSTX sought summary judgment with respect to all of Appellants' causes of action. The motion was directly aimed at "all [of] plaintiff's claims" and expressly requested that the trial court grant "complete summary judgment" in favor of BCBSTX. The motion also clearly indicates that BCBSTX sought summary judgment on two specific grounds: the absence of a legal duty and lack of causation. While only some of Appellants' asserted causes of action require the existence of a legal duty in order to be actionable, see Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001) (fraud by non-disclosure); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (negligence); Arnold v. Nat'l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987) (breach of duty of good faith and fair dealing); Darwin v. Fugit, 914 S.W.2d 621, 627 (Tex.App.-Fort Worth 1995, writ denied) (breach of contract — contractual duty or obligation required), all of the causes of action asserted by Appellant require causation. Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002) (intentional infliction of emotional distress); Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 193 (Tex. 1998) (claims under former article 21.21); Gym-N-I Playgrounds, Inc. v. Snider, 158 S.W.3d 78, 85 (Tex.App.-Austin 2005), aff'd, 220 S.W.3d 905 (Tex. 2007) (negligence, DTPA, fraud, fraudulent inducement, breach of the duty of good faith and fair dealing); Darwin, 914 S.W.2d at 627 (breach of contract); see MCN Energy Enters., Inc. v. Omagro de Colombia, L.D.C., 98 S.W.3d 766, 771 (Tex.App.-Fort Worth 2003, pet. denied) (negligent misrepresentation). Thus, a reasonable reading of the motion is that BCBSTX sought summary judgment on each of Appellants' causes of action based upon either the absence of a legal duty or lack of causation or both. Because the motion addressed all of Appellants' claims and provided them with fair notice of the grounds upon which BCBSTX sought summary judgment, we conclude that Appellants' contention is without merit.
C. Causation
Appellants next contend that the trial court erred by granting summary judgment in favor of BCBSTX on the basis of no causation because BCBSTX's wrongful conduct, i.e. failing to disclose its reimbursement agreement with Plaza and failing to perform case management, constituted a legal cause of Patricia's death. BCBSTX responds by arguing, as it did in its motion, that the connection between its alleged misconduct and Patricia's death is too remote to constitute legal causation as a matter of law. We agree.
1. Proximate and Producing Causation
In any cause of action, whether grounded in tort, contract, or a hybrid of the two, causation is the essential element necessary to attribute fault for one's injuries to another. Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 728 (Tex.App.-Fort Worth 1996, writ denied). Proximate cause is the causation standard applicable to claims of negligence, negligent misrepresentation, intentional infliction of emotional distress, and breach of the duty of good faith and fair dealing. Provident Am. Ins. Co., 988 S.W.2d at 193 n. 13 (breach of duty of good faith and fair dealing); Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993) (negligence); Larsen v. Carlene Langford Assocs., Inc., 41 S.W.3d 245, 250 (Tex.App.-Waco 2001, pet. denied) (negligent misrepresentation); see LaCoure v. LaCoure, 820 S.W.2d 228, 234 (Tex.App.-El Paso 1991, writ denied) (intentional infliction of emotional distress), disapproved of on other grounds in Durbin v. Dal-Briar Corp., 871 S.W.2d 263 (Tex.App.-El Paso 1994, writ denied). Causes of action based upon violations of the DTPA and former article 21.21 of the Texas Insurance Code require a showing of producing cause in order for those claims to be actionable. TEX. BUS. COM. CODE ANN. § 17.50(a) (Vernon Supp. 2006) (DTPA); Provident Am. Ins. Co., 988 S.W.2d at 193 (article 21.21 claims).
Proximate and producing cause differ in that foreseeability is an element of proximate cause but not of producing cause. Gen. Motors Corp., 873 S.W.2d at 357. Proximate cause consists of both cause in fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Union Pump Co., 898 S.W.2d at 775. A producing cause is an "efficient, exciting, or contributing cause, which in the natural sequence, produced injuries or damages complained of, if any" Haynes Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179 (Tex. 1995); Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1975). Common to both proximate and producing cause is causation in fact, including the requirement that the defendant's conduct be a substantial factor in bringing about the plaintiff's injuries. Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 n. 1 (Tex. 1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)).
However, cause in fact is not shown when the defendant's negligence did nothing more than furnish the condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of the resulting injuries and justify the conclusion that such injury was the natural and probable result thereof. See, e.g., Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.App.-Austin 1990, writ denied) (holding that a convenience store's sale of beer to an eighteen year old was not the cause in fact of a drunk driver's fatal car accident because the sale was to the passenger and not to the driver); Texas Am. Bank v. Boggess, 673 S.W.2d 398, 402 (Tex.App.-Fort Worth 1984, writ dism'd by agr.) (ruling that a bank's employment of a repossessor was not the cause in fact of the car owner's injuries since the owner was injured by a person that the repossessor had hired without the bank's knowledge). Thus, in some cases, even if the injury would not have happened but for the defendant's conduct, the connection between the defendant and the plaintiff's injuries simply may be too attenuated to constitute legal cause. See Union Pump Co., 898 S.W.2d at 776; Lear Siegler, Inc., 819 S.W.2d at 472.
We hold that even if BCBSTX had a duty to disclose its reimbursement contract with Plaza, its failure to do so was not a cause in fact of Patricia's death. In their petition, Appellants essentially contend that Patricia died as a result of the medical malpractice that was committed during her stay at Plaza. Although that may be true, we fail to see how that malpractice is attributable to BCBSTX's non disclosure. Presumably, Plaza provided Patricia with the same level of care that it would have provided even if she had been fully aware of the reimbursement contract. An act or omission cannot be a substantial factor in bringing about harm if the harm would have been sustained regardless of the act. Tex. Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex. 1967). Here, there is no reason to believe that the alleged malpractice would not have occurred had BCBSTX informed Patricia of its reimbursement scheme with Plaza. Therefore, we conclude that BCBSTX's non disclosure was not a cause in fact of Patricia's death.
We express no opinion as to whether BCBSTX had such a duty.
Appellants argue that had Patricia been aware of the reimbursement agreement, she would have foregone treatment at Plaza and sought medical care at another facility. Stated another way, Appellants argue that, through its non disclosure, BCBSTX placed Patricia in a situation that she otherwise would not have been in had the disclosure occurred. Although we recognize that there may be cases in which a defendant's conduct may expose another to an increased risk of harm by placing that person in a particular place at a particular time, there are certain situations in which the happenstance of place and time is too attenuated from the defendant's conduct for liability to be imposed. Lear Siegler, Inc., 819 S.W.2d at 472. Such is the case here. BCBSTX's non disclosure did nothing more than create a condition, i.e., Patricia seeking medical attention at Plaza, which made the alleged malpractice possible. See e.g. Union Pump, Co., 898 S.W.2d at 776; Lear Siegler, Inc., 819 S.W.2d at 472; Bell, 434 S.W.2d at 120. This causal connection is too remote to impose liability on BCBSTX as a matter of law. See Union Pump, Co., 898 S.W.2d at 776; Lear Siegler, Inc., 819 S.W.2d at 472; Bell, 434 S.W.2d at 120.
The same is true with regard to case management. Assuming, without deciding, that Patricia's policy imposed an affirmative duty on BCBSTX to perform case management, its breach of that duty did not contribute in any way to Patricia's death. Under the policy, case management is defined as follows:
CASE MANAGEMENT: The Case Manager will assess the continuing care needs in catastrophic and chronic high cost medical care cases and discuss with the attending Physician more efficient alternative means of medical care. Unless otherwise shown on the Policy Schedule, the Case Manager is the Administrator. Coverage may be provided for more efficient alternatives, even though such alternatives are not specifically stated in this Policy. Coverage for alternative care is subject to the same overall Lifetime Maximum, Deductible, Copayment and/or Coinsurance requirements that apply to the medical care being replaced. The alternative care must be: mutually agreed to by the Insured Person, the treating Physicians, and Us; and a cost effective alternative to benefits otherwise provided by the Policy.
Thus, any duty imposed on BCBSTX under the policy was limited to BCBSTX contacting Patricia's treating physicians for the purposes of discussing more cost-effective, alternative methods of care. The policy imposed no duty on BCBSTX to monitor Patricia's condition during her hospitalization or take further steps to ensure that the treatment that she was receiving from her doctors was adequate or appropriate. Therefore, even if BCBSTX's breached its alleged duty, that breach was not a substantial factor in bring about Patricia's death.
Because BCBSTX's conduct was neither a proximate nor a producing cause of Patricia's death, we conclude that the trial court did not err by granting summary judgment in favor of BCBSTX on Appellants' negligence, negligent misrepresentation, intentional infliction of emotional distress, breach of the duty of good faith and fair dealing, DTPA, and article 21.21 causes of action.
2. Appellants' Remaining Claims
With respect to Appellants' breach of contract, fraud, and fraudulent inducement claims, alternative causation standards apply. Although similar, proximate causation is not the causal standard applicable in a breach of contract action. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 n. 12 (Tex.App.-El Paso 2000, no pet.) Rather, actual damages are recoverable only if a plaintiff shows that the injury complained of was the natural, probable, and foreseeable consequence of the defendant's breach. Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex. 1981). With regard to fraud and fraudulent inducement claims, the appropriate causation standard depends upon the type of actual damages sought by the plaintiff. See Scott v. Sebree, 986 S.W.2d 364, 371 (Tex.App.-Austin 1999, pet. denied) (distinguishing between general and special damages and the causation standard applicable to each). When general or direct damages are sought, a plaintiff must show that the damages were the necessary and usual result of the defendant's wrongful act, i.e. they flow naturally and necessarily from the wrong. Arthur Anderson Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997); see also Scott, 986 S.W.2d at 371 ("[a] defrauded party is entitled to those damages resulting directly and naturally from fraud as general damages"). When special or consequential damages are sought, the plaintiff must demonstrate that those damages proximately resulted from the fraud alleged. Libhart v. Copeland, 949 S.W.2d 783, 800 (Tex.App.-Waco 1997, no writ).
Applying these standards, we conclude that Appellants' remaining claims also fail as a matter of law due to lack of causation. Patricia's death was not the natural, probable, and foreseeable consequence of any of BCBSTX's conduct, nor was it the type of injury that resulted directly from the wrongful acts alleged. As explained above, even if BCBSTX had disclosed its reimbursement agreement with Plaza and performed case management as that term is defined in the policy, there is no reason to believe that Patricia would have received a higher level of care or adequate nutritional support during her hospitalization. Therefore, the trial court did not err by granting summary judgment on Appellants' claims for breach of contract, fraud, and fraudulent inducement. Because our holding on causation is dispositive, we need not address Appellants' remaining issues.
VI. Conclusion
Having determined that all of Appellants' claims fail as a matter of law due to lack of causation, we affirm the trial court's judgment.