Opinion
CA 3:01-CV-0864-R
April 17, 2002
MEMORANDUM OPINION AND ORDER
Defendant Mutual of Omaha Insurance Company's ("Defendant" or "Mutual of Omaha") Motion for Summary Judgment is before the Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1991, Mutual of Omaha issued two policies to Plaintiff Bobbie S. Lacy ("Plaintiff"). These policies consisted of an Accident Policy (Policy No. 7ME1A-188504-32M) and a Hospital Policy (Policy No. HM149-188503-32M). On or about January 31, 1997, Plaintiff allegedly suffered injuries when she fell down some stairs ("the incident"). As a result of the incident, Plaintiff sought coverage from Mutual of Omaha for her injuries under the Accident Policy and the Hospital Policy. In response to Plaintiffs' claims under the Accident Policy, Mutual of Omaha paid the maximum benefit allowable, which is $300.00. Mutual of Omaha also paid benefits totaling $1500.47 under the Hospital Policy for expenses incurred by Plaintiff as a result of her injuries from the incident.
Thereafter, on or about April 23, 1997, the office of Plaintiffs' physician, Dr. G. Hunt Neurohr ("Dr. Neurohr"), sent a letter to Mutual of Omaha requesting information regarding Plaintiffs' benefits and requesting pre-certification of what benefits would be paid for certain surgeries. Mutual of Omaha pays benefits, if any, in accordance with the insurance policies when invoices are received. Therefore, Mutual of Omaha did not pre-certify that payment would be made for any of the surgeries set forth in Dr. Neurohr's letter.
On February 9, 2001, more than four years after the date of the incident, and more than three years and nine months after Dr. Neurohr's letter, Plaintiff filed suit against Mutual of Omaha alleging: (1) breach of contract; (2) quantum meruit; (3) violation of the Texas Deceptive Trade Practices Act ("DTPA"); and (4) violation of the Article 21.21 of the Texas Insurance Code ("Article 21.21"). All of these causes of action are predicated on Mutual of Omaha's failure to "give confirmation for surgery necessary for reconstruction of Plaintiffs' face," which surgery has not yet occurred. Because Mutual of Omaha owes no duty to "give confirmation for surgery" to be conducted or to otherwise pre-certify what benefits may be paid for medical treatment which has not yet occurred and because Plaintiffs' DTPA and Article 21.21 causes of action are barred by the two-year statute of limitations, summary judgment is GRANTED as to all claims.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates that there is no genuine issue as to any material fact and the party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing there is a genuine issue for trial. See Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment for the defendant will be granted if the plaintiff fails to make a showing sufficient to establish a material issue of fact as to the existence of an element essential to its case. See Celotex, 477 U.S. at 322.
B. Plaintiffs' DTPA and Article 21.21 Causes of Action
Plaintiffs' DTPA and Article 21.21 causes of action are barred by the two-year statute of limitations. A cause of action for violation of the DTPA must be brought "within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice." See TEX. BUS. COMM. CODE ANN. § 17.565 (Vernon 1987). See, e.g., Mbank Fort Worth, N.A. v. Trans-Meridian, Inc., 820 F.2d 716, 719 (5th Cir. 1987). The two-year statute of limitations under the DTPA "may be extended for a period of 180 days if the plaintiff proves that failure timely to commence the action was caused by the defendant's knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action." See id. In this case, there is no evidence that the 180-day extension applies, so Plaintiff was required to file her action within the two-year statute of limitations period under the DTPA.
A cause of action under Article 21.21 must be brought "within two years after the date on which the unfair method of competition or unfair or deceptive act or practice occurred or within two years after the person bringing the action discovered or, in the exercise of reasonable diligence, should have discovered the occurrence of the unfair method of competition or unfair or deceptive act or practice." Tex. Ins. Code Ann. art. 21.21, § 16(d) (Vernon Supp. 2001). See, e.g., Burton State Farm Auto. Ins. Co., 869 F. Supp. 480, 484 (S.D. Tex. 1994), aff'd, 66 F.3d 319 (5th Cir. 1995). The two-year statute of limitations under Article 21.21 "may be extended for a period of 180 days if the person bringing the action proves that the failure to timely commence the action was caused by the defendant's engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action." See id. In this case, there is no evidence that the 180-day extension applies, so Plaintiff was required to file her action within the two-year statute of limitations under Article 21.21.
The incident occurred on January 31, 1997, and Dr. Neurohr's letter was sent to Mutual of Omaha on April 23, 1997. Plaintiff bases her complaint on the fact that Mutual of Omaha did not pre-certify benefits and confirm surgeries in response to Dr. Neurohr's letter. Plaintiff did not bring her DTPA and Article 21.21 claims until February 9, 2001, more than three years and nine months after Dr. Neurohr's letter was sent. Therefore, Plaintiffs' DTPA and Article 21.21 causes of action are barred by the two-year statute of limitations. Defendant is entitled to summary judgment on Plaintiffs' DTPA and Article 21.21 claims.
Plaintiff explicitly concedes in the Response to Defendant's Motion for Summary Judgment that Defendant is entitled to summary judgment on Plaintiffs' DTPA and Article 21.21 claims.
C. Plaintiff's Quantum Meruit Cause of Action
Plaintiff also alleges a quantum meruit claim, requesting recovery of her premiums paid to Mutual of Omaha with respect to the Accident Policy and the Hospital Policy. Pursuant to Texas law, if the parties' obligations and rights are "covered by an express contract, there can be no recovery in quantum meruit." Caton v. Leach Corp., 896 F.2d 939, 947 (5th Cir. 1990) (citations omitted). It is undisputed that the parties' obligations and rights are set forth in the Accident Policy and the Hospital Policy, which are both express, written contracts. Because the parties' obligations and rights are covered by express contracts, the Accident Policy and the Hospital Policy, Defendant is entitled to summary judgment on Plaintiffs' quantum meruit claim, and this Court will look to Plaintiffs' breach of contract action.
Plaintiff explicitly concedes in the Response to Defendant's Motion for Summary Judgment that Defendant is entitled to summary judgment on Plaintiffs' quantum meruit claim.
D. Plaintiff's Breach of Contract Cause of Action
1. The Accident Policy
Under the Accident Policy, the maximum benefit allowed per accident is $300.00. The summary judgment evidence shows that Mutual of Omaha paid the sum of $1341.27 to Baylor Medical Center under the Policies on behalf of Plaintiff as a result of her injuries in the incident. Of the $1341.27, $300.00 was paid under the Accident Policy, and that $300.00 payment constitutes the maximum benefit allowed under the Accident Policy. Because Mutual of Omaha has already paid to Plaintiff the policy limit of $300.00 in relation to the incident, summary judgment is granted on Plaintiffs' breach of contract claims based on the Accident Policy.
Plaintiff does not dispute these facts in her Response to Defendant's Summary Judgment. Therefore, the Court adopts them as the undisputed facts in this case.
2. The Hospital Policy
Plaintiffs' causes of action are all predicated on Mutual of Omaha's failure to "give confirmation for surgery necessary for reconstruction of Plaintiffs' face," which surgery has not yet occurred. The summary judgment evidence shows that there is no provision in the Hospital Policy that requires Mutual of Omaha to pre-certify (or otherwise guarantee) that specific benefits will be paid in the future if and when medical treatment is rendered. Furthermore, Mutual of Omaha otherwise did not pre-certify any other benefit for Plaintiffs' treatments relating to the incident, even though Mutual of Omaha did pay benefits after specific treatments were rendered following the incident. Because Mutual of Omaha owes no duty to "give confirmation for surgery" to be conducted or to otherwise pre-certify what benefits may be paid for medical treatment which has not yet occurred, summary judgment is granted on Plaintiffs' breach of contract claims based on the Hospital Policy.
The pre-certification requests relating to these surgeries were set forth in Dr. Neurohr's letter dated April 23, 1997.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.