Case 4:11-cv-00406-Y Document 1

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

RICHARD PUSHEE Plaintiff v.

CIVIL NO. 4-11CV-00406

ACE AMERICAN INSURANCE COMPANY Defendant

ORIGINAL COMPLAINT TO THE HONORABLE UNITED STATES DISTRICT JUDGE: NOW COMES Richard Pushee, Plaintiff herein, complaining of ACE American Insurance Company, Defendant, and for cause of action would show: 1. 2. Plaintiff is a resident of Burleson, Tarrant County, Texas. Defendant, ACE American Insurance Company, (hereinafter referred to as "ACE") is an insurance corporation duly and legally formed under the laws of Pennsylvania, which does business in the State of Texas and may be served with citation herein by serving its registered agent, CT Corporation System, 350 North St. Paul Street, Dallas, TX 75201. 3. Jurisdiction is appropriate in this court as the matter in controversy arises under federal statutes. Plaintiff is entitled to recover under the civil enforcement provisions of the Employee Retirement Income Security Act of 1974 (AERISA@), Specifically including 29 U.S.C. ' 1132 (a)(1)(B). Plaintiff would show that he is a participant in or beneficiary of his employer's-Stephen M. Pearson, Inc. d/b/a Tree Top Tree Service-occupational injury

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employee benefit plan, which includes an insurance policy issued by ACE. Plaintiff brings this action to recover said benefits, to enforce his rights under the terms of the plan and to obtain other appropriate equitable relief. 4. On June 16, 2008, Plaintiff was employed by Stephen M. Pearson, Inc. d/b/a Tree Top Tree Service, when he sustained a serious injury on the job. By virtue of his employment, Plaintiff was insured for occupational injury benefits under a policy of insurance, identified as Policy No. OCA N04252469001 issued by Defendant to Stephen M. Pearson, Inc. d/b/a Tree Top Tree Service and insuring Plaintiff. Plaintiff properly submitted a claim to ACE, identified as claim number 107526, which was denied. Plaintiff then properly appealed to the

designated fiduciary of the plan but that appeal was denied on August 26, 2010. Plaintiff then filed a second appeal to defendant but that appeal was denied on December 21, 2010. 5. Plaintiff has exhausted all administrative remedies available to him under the plan. All conditions precedent to this cause of action have been met or have occurred. 6. Plaintiff is entitled to recover under the civil enforcement provisions of ERISA and seeks the benefits he has been denied, attorney's fees and expenses incurred herein and other appropriate equitable relief. WHEREFORE, Plaintiff prays that Defendant be cited to appear herein and answer and that on final hearing, he have judgment against Defendant for his damages, plus pre-judgment and postjudgment legal interest, for costs of suit, for reasonable attorney's fees and expenses incurred, to which he may show himself justly entitled under the attending facts and circumstances.

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Respectfully submitted, The Todd Smith Law Firm Todd A. Smith 1608 Airport Freeway, Ste. 100 Bedford, TX 76022 Telephone: 817-684-9400 Telecopier: 817-684-9403 E-mail: toddtotoddsmithlaw.coin

By:

s/Todd A. Smith Todd A. Smith Texas Bar No. 18689900 Attorney for Plaintiff