Filed

10 october 14 P3:07
Amalia Rodriguez-Mendoza
District CIeri<
CAUSE NO. 0-1-GN-1 0-003685 Travis District
D-1-GN-10-003685
JAMES MATHEWS, § IN THE DISTRICT COURT OF
Plaintiff §
§
V.
§ TRAVIS COUNTY, TEXAS
INDEMNNITY INSURANCE COMPANY §
OF NORTH AMERICA, §
Defendant § 419TH JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION & JURY DEMAND

TO OUR HONORABLE JUDGE & JURY OF TRAVIS COUNTY CITIZENS:

1. Plaintiff James Mathews ("Me. Mathews") files this petition against Defendant INDEMNITY

INSURANCE COMPANY OF NORTH AMERICA ("Defendant") and would respectfully show

the following:

I. Discovery Conh'ol Plan

2. Mr. Mathews intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure

190.

II. Parties

3. Mr. Mathews is a resident and citizen of Travis County, Texas.

4. Defendant, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, is a

corporation operated for the purpose of accumulating monetary profit, and it may be served with

service of process upon its registered agent for service, Robin M. Mountain, or successor, 6600

Campus Circle Drive East Suite 300, Irving, Texas 75063.

III. Venue & Jm'isdiction

5. Venue is proper in Travis County under Tex. Civ. Prac. & Rem. Code Section 15.002(a)(1),

as a substantial part of the events or omissions giving rise to this claim occurred in Travis County.

In addition, the insurance policy at issue and of which Me. Mathews is a beneficiary was sold to

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his employer, in and to be performed in Travis County, Texas, and the losses under the policy
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(including payments to be made for the benefit of Mr. Mathews for care to be rendered in Travis

County) were required to be made in Travis County, Texas. Further, investigation, including

communications to and from Defendant and Mr. Mathews' healthcare providers, occurred in

Travis County Texas.

6. Mr. Mathews sues for damages in excess of $125,000, and jurisdiction is proper in this

Court.

IV. Factual Backg.·ound

7. This suit is necessary to collect a legal debt and damages due and owing Mr. Mathews

because of Defendant's wrongful acts in handling of his claim for an on the job injury for which

workers' compensation benefits were disputed and later paid only after on order of the Texas

Department of Insurance-Division of Workers' Compensation, DWC.

8. Mr. Mathews, a loyal and hardworking employee of Midwestern Services Inc., was injured

while working on the job on October 14, 2008.

9. Rather than properly investigate Mr. Mathews' injuries to ensure Mr. Mathews would receive

the income and other benefits to which he was entitled as a beneficiary of the workers'

compensation promised to the employees of Midwestern Services Inc., without reasonable basis,

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA chose to continue to deny

timely payment of insurance benefits. INDEMNITY INSURANCE COMPANY OF NORTH

AMERICA filed a denial of benefits on October 30,2008 in a DWC Form PLN-l Notice of Denial

of Compensability/Liability and Refusal to Pay Benefits, dated October 30, 2008. As a result, Mr.

Mathews was forced to hire and pay a lawyer to help his secure the workers' compensation

benefits to which he was entitled. After proceeding through all the necessary administrative

proceedings before the Texas Department of Insurance-Division of Workers' Compensation, Mr.

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Mathews was able to secure a binding final determination from the Texas Department of

Insurance, Division of Workers' Compensation, ordering payment of the long overdue benefits

through the Contested Case Hearing Decision and Order, signed September 2, 2009 and filed

September 3, 2009.

10. Unfortunately, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S delay

and imposition of severe economic distress and delayed medical treatment had reasonably

anticipated consequences on Mr. Mathews from which he is still fighting to recover. Given the

repeated delays of payment for his necessary income and other benefits, Mr. Mathews has been

subjected to significant economic impact, worry, distress, and continuing economic and physical

damage. In addition, Mr. Mathews has suffered financial harm and damage to his credit as a result

of INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S denial and repeated

delays.

11. The significant effect of Defendant's wrongful and unjustified delay is still uncompensated.

V. FIRST CAUSE OF ACTION--Violations of Texas Insurance Code

12. Plaintiff JAMES MATHEWS realleges and incorporates each allegation contained in

Paragraphs 1--15 of this Petition as if fully set forth herein.

13. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to attempt to

effectuate a prompt, fair, and equitable settlement of a claim with respect to which liability has

become reasonably clear, in violation of Texas Insurance Code Section 541.060 (a)(2)(A)

(formerly Art. 21.21 §4(l0)(ii».

14. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to adopt and

implement reasonable standards for prompt investigation of claims arising under its policies.

15. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA failed to provide

Original Petition James Mathews

 Case 1:11-cv-00228-SS Document 1-1 Filed 03/24/11 Page 6 of 28

promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of a

claim, in violation of Texas Insurance Code Section 541.060 (a)(3) (formerly Art. 21.21

§4( 10)(iv)).

16. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA refused to pay a claim

without conducting a reasonable investigation with respect to the claim, in violation of Texas

Insurance Code Section 54l.060(a)(7) (formerly Art. 2l.21 §4(10)(vii)).

17. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented the

insurance policy under which it affords workers' compensation coverage to Mr. Mathews, by

making an untrue statement of material fact, in violation of Texas Insurance Code Section

541.061 (l)(formerly Art. 2l.21 §4(11)(a».

18. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented the

insurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

affords workers' compensation coverage to Mr. Mathews, by failing to state a material fact that is

necessary to make other statements made not misleading, in violation of Texas Insurance Code

Section 541.061(2) (formerly Art. 21.21 §4(1l)(b)).

19. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA misrepresented the

insurance policy under which INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

affords workers' compensation coverage to Mr. Mathews, by making a statement in such manner

as to mislead a reasonably prudent person to a false conclusion of material fact, and failing to

disclose a matter required by law to be disclosed, in violation of Texas Insurance Code Section

541.061(3) (formerly Art. 21.21 §4(11)(c) and Texas Insurance Code Section 541.002(1) (formerly

Art. 21.21 §4(11)(e)).

20. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA knowingly committed the

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foregoing acts, with actual knowledge of the falsity, unfairness, or deception of the foregoing acts

and practices, in violation of Texas Insurance Code Section 54l.002(1) (formerly Art. 2l.21

§2(c)).

VI. SECOND CAUSE OF ACTION-Breach of Duty of Good Faith & Fair Dealing

2l. Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--20 of the

Petition as if fully set forth herein.

22. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as Mr. Mathews'

workers' compensation insurer, had a duty to deal fairly and in good faith with Mr. Mathews in the

processing of the workers' compensation claim. INDEMNITY INSURANCE COMPANY OF

NORTH AMERICA breached this duty by refusing to properly investigate and effectively denying

necessary income and other benefits. INDEMNITY INSURANCE COMPANY OF NORTH

AMERICA knew or should have known that there was no reasonable basis for denying or delaying

the required benefits. As a result of INDEMNITY INSURANCE COMPANY OF NORTH

AMERICA'S breach of these legal duties, Mr. Mathews suffered legal damages including

damages pursuant to Texas Labor Code Section 416.002.

VII.THIRD CAUSE OF ACTION-Punitive Damages for Bad Faith

23. Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--22 of this

Petition as iffully set for herein.

24. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA acted fraudulently and

with malice (as that term is legally defined) in denying Mr. Mathews' claim for workers'

compensation benefits. Defendant's conduct when viewed objectively from its standpoint at the

time of its occurrence involved an extreme degree of risk to Mr. Mathews, considering the

probability and magnitude of the potential harm to Mr. Mathews. Further, Defendant had actual,
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subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference

to the rights, safety, or welfare ofMr. Mathews.

VIII. FOURTH CAUSE OF ACTION-Violations of Texas DTPA

25. Plaintiff Mr. Mathews realleges and incorporates each allegation contained in Paragraphs 1--

24 of this Complaint as if fully set forth herein.

26. The Deceptive Trade Practices Consumer Protection Act (DTPA) provides additional

protections to consumers who are victims of deceptive, improper, or illegal practices. Defendant's

violations of the Texas Insurance Code create a cause of action under the DTPA Defendant's

violations of the Texas Insurance Code, as set forth herein, specifically violate the DTPA as well.

IX. RESULTING LEGAL DAMAGES

27. Mr. Mathews is entitled to the actual damages resulting from the Defendant's violations of

the law. These damages include the consequential damages to his economic welfare from the

wrongful denial and delay of benefits; the mental anguish and physical suffering resulting from

this wrongful denial of benefits, and continued impact on the medical evaluation, treatment, and

final prognosis; and the other actual damages permitted by law. In addition, Mr. Mathews is

entitled to exemplary damages including but not limited to Texas Labor Code Section 416.002.

28. As a result of Defendant's acts and/or omissions, Plaintiff has sustained damages in excess of

the minimum jurisdictional limits of this Court.

29. Plaintiff is entitled under law to the recovery of prejudgment interest at the maximum legal

rate.

30. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S knowing violations of

the DTPA entitle Mr. Mathews to the attorneys' fees, treble damages, quadruple damages under

Section 416.002, above, and other penalties provided by law.

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PRAYER

31. WHEREFORE, PREMISES CONSIDERED, Plaintiff, James Mathews, respectfully prays

and requests that Plaintiff have judgment against Defendant for actual damages in excess of the

minimum jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowed

by law, costs of suit, and all other relief, at law or in equity, to which JAMES MATHEWS may be

entitled.

Respectfully submitted,
J /1/1,/!;1 ,1.tl
/'~ /'jlL L-/~
BRADLEY DEAN McCLELLAN
Of Counsel, Law Offices of Richard Pena, P. C.
I, AMALIA RODRIGUEZ-MENDOZA, District Clerk, State Bar No. 13395980
Travis County, Texas, do hereby ceriify that this
1701 Directors Blvd. Suite 110
is a true and correct copy as same appears of
Austin, Texas 78744
record in my office. Witness r:J. hand and seal
of office on -3 ' J - . (512) 327-6884 telephone
AMALIA RODRIGUEZ-MENDOZA (512) 327-8354 facsimile
Brad.McClellan@yahoo.com
DISTRICT CLERK
Attorney for James Mathews. Plaintiff

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Original Petition James Mathews