Opinion
Civil Action No. 3:03-CV-2381-K.
July 13, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Blue Cross Blue Shield of Michigan's ("BCBS") Motion to Dismiss, and Plaintiffs Frederick Joe LaRoe, Wendy McClellan, and Kristi Wooden's (collectively "Plaintiffs") Motion for 30-Day Grace Period. Having considered the merits of the motions, and for the reasons set forth below, the Court GRANTS Plaintiffs' motion and DENIES BCBS's motion; however, the Court awards BCBS court costs and reasonable attorneys fees of $5,000 pursuant to section 13.01(e)(1) of article 4590i of the Medical Liability and Insurance Improvement Act of Texas.
I. Factual and Procedural Background
This suit involves alleged violations of sections 88.001-88.003 of the Texas Civil Practice and Remedies Code, brought by Plaintiffs against BCBS, for failure to use ordinary care when making health care decisions for Katherine LaRoe, deceased.
BCBS filed a motion to dismiss alleging Plaintiffs failed to file expert reports as required by section 13.01 of the Medical Liability and Insurance Improvement Act of Texas. Plaintiffs responded and filed a motion for a thirty-day grace period pursuant to Texas Civil Practice and Remedies Code Section 13.01.
Plaintiffs' admit they failed to provide the required expert reports in a timely manner. In a sworn affidavit, Plaintiffs' counsel testified that between the filing of this case and the 180 day deadline, he moved his offices from Austin, Texas, to Dallas. Plaintiffs' counsel states that he inadvertently failed to calendar the 4590i deadlines on his new firm's scheduling software.
II. Motion to Dismiss
A court may dismiss a complaint under Federal Rules of Civil Procedure 12(b)(6) if it is clear that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In deciding a rule 12(b)(6) motion, the court must accept the factual allegations of the complaint as true. Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994). However, the court need not accept as true conclusory or inferential allegations which are contradicted by the facts pleaded or set out in the exhibits attached to or incorporated in the pleading. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (conclusory allegations or legal conclusions appearing as factual conclusions not sufficient to prevent motion to dismiss).
III. Extension
The Texas Civil Practice and Remedies Code Section 88.02(k) states that an "enrollee who files an action under this chapter shall comply with the requirements of Section 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), as it relates to cost bonds, deposits and expert reports." Tex. Civ. Prac. Rem. Code § 88.02(k). An extension may be granted under section 13.01(g) of article 4590i "if the court finds the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake." Former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (Vernon Supp. 1998) (repealed 2003).
A. Timeliness
A motion for a grace period under section 13.01(g) will be considered timely provided it is filed before a hearing is conducted on a defendant's motion. Id. at § 13.01(g); see Russ v. Titus Hosp. Dist, 128 S.W.3d 332, 338 (Tex.App.-Texarkana 2004, pet. filed) (motion to extend time under section 13.01(g) timely when filed before hearing on defendant's motion to dismiss).
Because the Court has not conducted a hearing on BCBS's motion to dismiss, Plaintiffs' motion for extension is timely. The Court must now decide whether the Plaintiffs' failure to meet the deadline is excused by accident or mistake, in that it was not intentional or the result of conscious indifference.
B. Accident or Mistake
The party seeking the extension carries the burden to show some excuse of accident or mistake in establishing that the failure to comply was not intentional or the result of conscious indifference. Pfeiffer v. Jacobs, 29 S.W.3d 193, 198 (Tex.App. — Houston [14th Dist.] 2000, pet. denied). Conscious indifference has been interpreted to mean the failure to take some action that would seem appropriate to a person of reasonable sensibilities under similar circumstances. Tesch v. Stroud, 28 S.W.3d 782, 787 (Tex.App.-Corpus Christi 2000, pet. denied); Nguyen v. Kim, 3 S.W.3d 146, 151 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Proof of accident or mistake negates intent or conscious indifference. Roberts v. Medical City Dallas Hospital, Inc., 988 S.W.2d 398, 403 (Tex.App.-Texarkana 1999, pet. denied); McClure v. Landis, 959 S.W.2d 679, 681 (Tex.App. — Austin 1997, pet. denied). If the failure to file was in fact an accident or mistake, even negligence will not defeat a right to extension. Moore v. Sutherland, 107 S.W.3d 786, 792 (Tex.App. — Texarkana 2003, pet. denied); Tesch, at 782.
Several Texas courts have found calendar errors to be types of accident or mistake. See Presbyterian Healthcare Sys. v. Afangideh, 993 S.W.2d 319, 323 (Tex.App.-Eastland 1999, pet. denied); Ferrell v. Ferrell, 820 S.W.2d 49, 50 (Tex.App. — Corpus Christi 1991, writ den'd); Kirk v. Aerial Spraying Service, Inc., 496 S.W.2d 739, 741-42 (Tex.Civ.App.-Corpus Christi 1973, no writ). Plaintiffs' counsel testified in a sworn affidavit that he failed to calendar the 180 day deadline in his new scheduling software after moving his offices from Austin to Dallas. See Presbyterian Healthcare Sys., 993 S.W.2d at 323; Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (attorney's statements must be under oath to constitute evidence). BCBS has not provided any evidence to the contrary. The Court finds Plaintiffs' failure to file the expert reports was the result of an accident or mistake; consequently, Plaintiffs' requested extension should be granted. See Roberts, 988 S.W.2d at 403; see also Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).
IV. Sanctions
Section 13.01(e)(1) of article 4590i mandates that, upon a plaintiff's failure to comply with Section 13.01(d), the trial court shall award reasonable attorneys' fees and costs of court as a sanction. Tex. Civ. Prac. Rem. Code § 13.01; see Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex.App. — Houston [1st Dist.] 2003, pet. denied). The statute does not require testimony of costs beyond proof by sworn affidavit. See Strom, 110 S.W.3d at 227. Consequently, after reviewing the record, the Court awards costs of court and $5,000 in attorneys' fees to BCBS.
VI. Conclusion
The Court DENIES BCBS's Motion to Dismiss. The Court GRANTS Plaintiffs' Motion for 30-Day Grace Period; however, the Court awards reasonable attorneys' fees of $5,000 and court costs to BCBS as sanctions for Plaintiffs' failure to timely file expert reports.
SO ORDERED.