HASHEMPOUR v. ACE AMERICAN INSURANCE COMPANY Et Al Complaint

Case 5:11-cv-00129 Document 1
Filed in TXSD on 10/06/11 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION RAY HASHEMPOUR, Plaintiff, V. CASE NO. ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., & DIVERSIMED, INC., Defendants. JURY DEMANDED
NOTICE OF REMOVAL Defendants ACE American Insurance Company ("ACE") and Gallagher Bassett Services, Inc. ("Gallagher") hereby remove this civil action from the Webb County District Court, Texas to the United States District Court for the Southern District of Texas, Laredo Division, pursuant to 28 U.S.C. 1332, 1441 and 1446. 1. On August 3, 2011, Plaintiff Ray Hashempour ("Plaintiff") filed Plaintiff's
Original Petition in the 406 th Judicial District of Webb County, Texas, in Cause No. 2011CVF001161D4 (the "State Court Action") against ACE, Gallagher and Diversimed, Inc.' In his Petition, Plaintiff alleges that he suffered an on-the-job-injury and was the beneficiary under an Occupational Accident Injury insurance policy ("Policy") issued by ACE, and for which Gallagher acted as independent third-party adjuster. Plaintiff alleges that Defendants ACE and Gallagher improperly terminated Plaintiffs' indemnity and medical benefits under the ceased paying indemnity and medical benefits due under the Policy. Plaintiff asserts causes of action
Defendant ACE has subsequently learned that Plaintiff has filed a First Amended Original Petition in Webb County, however, neither ACE nor Gallagher have been served with Plaintiff's First Amended Original Petition. In Plaintiff's First Amended Original Petition, Defendants ACE and Gallagher learned that Dr. Ruben Pechero has been named as a defendant. However, the docket sheet from the Webb County District Clerk does not indicate that service of process on Dr. Pechero has been effectuated.
NOTICE OF REMOVAL PAGE 1
for breach of contract, violation of Texas Insurance Code Sections 541.060 and 542.003, breach of the duty of good faith and fair dealing, "legal 'malice' and unconscionability, violation of the Texas Deceptive Trade Practices Act. 2. On or about September 7, 2011, ACE was served with a copy of a Citation and
Plaintiff s Original Petition via its registered agent in Dallas, Texas. See Exhibit A. On or about September 7, 2011, Gallagher was served with a copy of a Citation and Plaintiff's Original Petition via its registered agent in Austin, Texas. 3. This Notice of Removal is filed within thirty days from the earliest possible
receipt of Plaintiff's Original Petition from the date ACE was served and is filed within one year from the commencement of the action. 28 U.S.C. 1446(b). 4. Plaintiff has not alleged the amount in controversy, exclusive of interest and costs
in its petition. However, Plaintiff has served a pre-suit statutory demand letter asserting damages of unpaid indemnity benefits and unpaid medical expenses of more than $31,000. In addition, in his pre-suit statutory demand letter, Plaintiff asserts damages of mental and emotional trauma and anguish in excess of $50,000.
See Exhibit B.
Therefore, the amount in controversy,
exclusive of interest and costs, exceeds $75,000.00. 5. 6. The injury allegedly giving rise to the claim occurred in Edison, New Jersey. ACE is a Delaware corporation that maintains its principal place of business in
Philadelphia, Pennsylvania. For purposes of diversity jurisdiction, ACE is a citizen of the states of Delaware and Pennsylvania; it is not a citizen of Texas. 7. Gallagher is incorporated in Delaware with its principal place of business in
Illinois. For purposes of diversity jurisdiction, Gallagher is a citizen of the states of Delaware and Illinois; it is not a citizen of Texas.
NOTICE OF REMOVAL
PAGE 2
8.
Diversimed is a Florida corporation with its principal place of business in Florida.
For purposes of diversity jurisdiction, Diversimed is a citizen of the state Florida; it is not a citizen of Texas. 9. Plaintiff is a resident of Mexico. Plaintiff previously maintained a residence in
Tennessee. Plaintiff is not a resident of the Texas, Delaware, Pennsylvania, Illinois or Florida. For purposes of diversity jurisdiction, Plaintiff is a citizen of Tennessee. 10. Because complete diversity of citizenship exists among the parties to this action,
and because the amount in controversy exceeds $75,000, this Court has subject matter jurisdiction based on diversity of citizenship. 28 U.S.C. 1132. 9. ACE and Gallagher, pursuant to 28 U.S.C. 1446(a), 1447 (b), and 1449 hereby
attach all state court pleadings to its Notice of Removal. See Exhibit A. WHEREFORE, ACE and Gallagher respectfully prays this suit be moved from the Webb County District Court of Webb County, Texas to the United States District Court for the Southern District of Texas, Laredo Division, pursuant to 28 U.S.C. 1332, 1441 and 1446.
NOTICE OF REMOVAL
PAGE 3
Respectfully submitted: Attorney In Charge
6L(-)1 A
Alicia G. Cu an Texas State Bar Number: 12587500 Southern District of Texas Admission No. 19226 COZEN O'CONNOR, P.C. 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: (214) 462-3021 Facsimile: (866) 248-5742 Of Counsel: Craig C. Crafton Texas State Bar Number 24036413 Southern District of Texas Admission No.:1141478 COZEN O'CONNOR, P.C. 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: (214) 462-3021 Facsimile: (866) 248-5742
ATTORNEYS FOR ACE AMERICAN INSURANCE COMPANY and GALLAGHER BASSETT SERVICES, INC.
NOTICE OF REMOVAL
PAGE 4
CERTIFICATE OF SERVICE
I hereby certify that on this 6 th day of October, 2011, a true and correct copy of the above and foregoing was sent to Plaintiff s counsel, via certified mail, return receipt requested. James C. Plummer, Esq. Amar Raval, Esq. Plummer & Associates 4203 Montrose Blvd, Suite 270 Houston, TX 77006 David Garcia, Esq. David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, TX 78040
Alicia G. Curran
CERTIFICATE OF CONFERENCE
Counsel for ACE American Insurance Company and Gallagher Bassett Services, Inc., Alicia Curran, has conducted a conference with attorney Phil Griffis, expected counsel of record for Diversimed, Inc. Mr. Griffis has advised that he consents to this removal. In addition, I have attempted to conduct a conference with attorney Plummer, attorney for Plaintiff. However, due to scheduling, attorney Plummer and I have not been able to engage in substantive dialogue.
Alicia G. Curran
dtAA
DALLAS\5488194 312049.000
NOTICE OF REMOVAL
PAGE 5
Case 5:11-cv-00129 Document 1-1
Exhibit A
State Court Pleadings
NOTICE OF REMOVAL
PAGE 6
INDEX to EXHIBIT A State Court Pleadings
1. Webb County Judicial System Civil Case Docket for cause number 2011CVF001161 D4; 2. Civil Case Information Sheet in cause number 2011CVF001161 D4, Webb County, Texas; 3. Service of Process Transmittal and Citation for Ace American Insurance Company and Plaintiff's Original Petition in cause number 2011CVF001161 D4, Webb County, Texas; 4. Defendants Ace American Insurance Company and Gallagher Bassett Services, Inc.'s Motion to Transfer Venue and Subject Thereto and Without Waiving Same Original Answer to Plaintiff's Original Petition, as filed in cause number 2011CVF001161 D4, Webb County, Texas; 5. Plaintiff's First Amended Original Petition in cause number 2011CVF001161 D4, Webb County, Texas; 6. Citation and Officer's Return for Ace American Insurance Company in cause number 2011CVF001161 D4, Webb County, Texas; 7. Citation and Officer's Return for Gallagher Bassett Services, Inc. in cause number 2011CVF001161 D4, Webb County, Texas; 8. Citation and Officer's Return for Diversimed, Inc. in cause number 2011CVF001161 D4, Webb County, Texas; and 9. List of Parties, Attorneys and State Court.
NOTICE OF REMOVAL
PAGE 7
1.

WEBB Webb County Courts 9/28/11 DATE 11:15:17 TIME

SYSTEM
JUDICIAL COUNTY CIVIL CASE DOCKETS
ICICr\lb s
1
PAGE MV0260 DCMRG
CASE NUMBER PLAINTIFF S S # ADDRESS DRIVER LICENSE # .
CASE TYPE : 2011CVF001161 D4 HASHENPOUR,RAY D 0.B 000-00-0000
F01 CONSUMER/DTPA
PHONE NUMBER: 000-000-0000 PLAINTIFFS ATTORNEY : PLUMMER,JAMES ADDRESS 4203 MONTROSE BOULEVARD SUITE 270 TX 77006 HOUSTON
V S.
DEFENDANT NAME S .S.# ADDRESS DRIVERS LICENSE # CASE STATUS CASE DISPOSITION DEFENDANT NAME S .S # ADDRESS DRIVERS LICENSE # . CASE STATUS CASE DISPOSITION DEFENDANT NAME S .S.# ADDRESS DRIVERS LICENSE # CASE STATUS CASE DISPOSITION ENTRY/FILING DATE . : JUDGE HEARING TYPE . . . ADMIN. TERM. CODE 'COMPLAINT COMPLAINT DATE INTEREST DATE . . REIMBURSE COSTS . COUNTER CLAIM ORI# TRUSTEESHIP ORI# . GARNISHMENT ORI# .
: ACE AMERICAN INSURANCE COMPANY, 000-00-0000 D.0 B. 350 NORTH PAUL ST TX DALLAS 75201 Active STATUS DATE . . DISPOSITION DATE 8/03/2011
: GALLAGHER BASSETT SERVICES INC, 000-00-0000 D.0 B. 701 BRAZOS ST STE 1050 AUSTIN TX 78701 Active STATUS DATE . . . DISPOSITION DATE
8/ 0 3 / 2 0 1 1
: DIVERSIMED INC, 000-00-0000 D 0.13 1011 ORANGEWALK DRIVER BRANDON Active
FL 33511 8/03/2011
STATUS DATE . . . DISPOSITION DATE :
8/03/2011 0.J.Hale IND. TERM. CODE
*IMG* CONTRACT 8/03/2011 COMPLAINT AMOUNT : INTEREST RATE . : NO COUNTER CLAIM CASE: TRUSTEESHIP CASE GARNISHMENT CASE . YtR4W91?
ACTIVITY DATE ACTIVITY DESCRIPTION
ACTIVI Y T
Rui ?c5i
cert y of the 20 day of ESTHER DEGO LADO e Clerk of the *lav 0.
-7

WEBB Webb County Courts 9/28/11 DATE TIME 11:15:17

SYSTEM PAGE MV0260 DCMRG 2
JUDICIAL COUNTY CIVIL CASE DOCKETS
CASE NUMBER
2011CVF001161 D4
CASE TYPE : F01 CONSUMER/DTPA
8/03/2011 Case Status Case Status entered as ACTV. Case Status ACTV: Active For ACE AMERICAN INSURANCE COMPANY Complaint *IMG* CONTRACT
CaseStatus
Complaint
Notes 8/05/2011 Notes FAXED CALENDAR CALL TO ATTORNEY, JAMES C. PLUMMER (RH) Citation Citation 6 CITATIONS ISSUED TO ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC. AND DIVERSIMED, INC. AND PLACED ON PRIVATE SERVER BOX (RH) Case Assgn Court Case Assignment 17 Clndr Call Court date/time: 11/01/2011 14:00 Hearing Type: Assignment of court date/time. Status entered as Open Jury Fee Jury Fee JURY DEMAND PAID (RH) 8/30/2011 Notes MAILED CITATIONS BACK TO ATTORNEY (RH)
9/12/2011
Notes
Original Petition *IMG* PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION. JB
Orig Petit
9/15/2011 Citation Citation 2 CITATIONS ISSUED AS TO RUBEN D. PECHERO, MAILED BACK TO ATTY. JB 9/16/2011 Returns Returns *IMG* RETURN OF CITATION SHOWING SERVICE AS TO ACE AMERICAN INSURANCE COMPANY (D.O.S. 9/7/11). JB Returns Returns *IMG* RETURN OF CITATION SHOWING SERVICE AS TO GALLAHER BASSETT SERVICES, INC. (D.O.S. 9/7/11). JB
9/26/2011
Returns Returns *IMG* RETURN OF CITATION SHOWING SERVICE AS TO DIVERSIMED, INC. BY SERVING ITS REGISTERED AGENT LONNIE HARVEY (DOS 9/15/11). MG
2.
No. 2069 P. Case 5:11-cv-00129 Plum Document 1-1 Filed in TXSD on 10/06/11 Page 7 of 741 & Kuykendal 1 Aug. 3. 2011 3:47PM
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CAUSE NO. RAY HASHEMPOUR

V S.
6201frty-R:o 1/6.l9
IN THE DISTRICT C
' r WEBB COUNTY , TEXAS
ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., & DIVERSIMED, INC.
4/Pb 'JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THE COURT: This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACE American Insurance Company, Gallagher Bassett Services, Inc., and Diversimed, Inc. I. Discovery in this case is intended to be conducted under Level 2, pursuant to Texas Rule of Civil Procedure 190.3.
Parties
2. 3.
Plaintiff, Ray Hashempour ("Hashempour"), is a resident citizen of the State of Texas. Defendant, ACE American Insurance Company ("ACE"), is a domestic or foreign insurance company licensed to do business and doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, CT Corporation System, 350 North Paul St., Dallas, TX, 75201, or wherever it may be found.
4.
Defendant, Gallagher Bassett Services, Inc. ("Gallagher Bassett") is a domestic or foreign corporation doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, Prentice Hall Corp. System, 701 Brazos Street, Suite 1050, Austin, TX 78701, or wherever it may be found.
5.
Defendant, Diversimed, Inc. ("Diversimed"), is a domestic or foreign corporation doing business in the State of Texas, and may be served by serving its registered agent, Lonnie Harvey, at 1011 Orangewalk Driver, Brandon, Florida 33511, or wherever it may be found.
Venue
6.
Venue is proper in Webb County, Texas under Tex. Civ, Prac. & Rem. Code 15.002(a)(1) & (4) in that all or a substantial part of the events or omissions giving rise to this claim occurred in Webb County, and Hashempour resided at all relevant times in Webb County, Texas. The obligations under the insurance policy at issue were to be performed in Webb County. The investigation and adjustment of Hashempour's claim, including
communications to and from Defendants occurred in Webb County, Texas. Venue is also proper pursuant to Tex. Civ. Prac. & Rem. Code 15.032 since ACE is an "accident insurance company" as that tetrn is defined by law, and Ray Hashempour at relevant times was a resident of Webb County Texas.
Facts & Factual Background
7.
Ray Hashempour had been a self-employed, owner-operator truck driver operating an 18 wheel tractor-trailer vehicle for his livelihood. In February of 2009, he was injured while engaged in this occupation. As a result of that occupational injury, he was unable to return to his occupation as an over-the-road truck driver.
8.
An initial diagnosis of Hashempour was lumbar spondylosis and lumbar disc herniation, a condition caused by that injury , His symptoms included severe right leg pain, and numbness and weakness in his lower extremities.
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9.
In October of 2009, Ray Hashempour underwent a lumbar fusion. Although the initial prognosis for the surgical outcome was positive, in medical follow ups following that surgery, Hashempour reported the pain getting progressively worse. He also reported, along with other disabling conditions, cramping in the legs, pain through the feet, legs and back, all greatly restricting his activities of daily living.
10.
By January of 2010, the follow up diagnosis by Hashempour's treating doctors was lumbar post-laminectomy and fusion, and chronic pain syndrome. His treating physicians opined he was totally incapacitated and unable to return to work.
11.
Before his February, 2009 injury, Hashempour purchased an occupational accident insurance policy from ACE American Insurance Company ("ACE"). That policy was Policy No. TOC NO1303533 (the "Policy"). The Policy provided for the payment wage replacement and medical benefits in accordance with its terms in the event the insured suffered an occupational injury resulting in his disability. Temporary Total Disability benefits were payable for a maximum period of 104 weeks. Permanent Total Disability benefits were payable to the date the insured's Social Security Disability Award stopped.
12.
Hashempour timely gave notice to ACE or its claims administrator, Broadspire, of his occupational injury. With the documented medical supplied, Broadspire determined that Hashempour met the Policy requirements for Temporary Total Disability and proceed to pay both indemnity and medical benefits.
13.
On March 1, 2010, management for Hashempour's claim was transferred from Broadspire to Gallagher Bassett Services ("Gallagher Bassett"). Hashempour or his treating physicians continued to supply Gallagher Bassett with reports of his medical condition opining in
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significant part that Ray Hashempour remained "unable to return to work" and that he remained "totally incapacitated" from his occupation. 14. Gallagher Bassett then engaged Diversimed, Inc. ("Diversimed") to arrange for an alleged "independent" medical examination of Hashempour. Diversimed then engaged a Dr. Ruben Pechero to perform that medical examination. Diversimed or Gallagher Bassett or both failed to determine Pechero's qualifications to provide an objective medical assessment of Hashempour's condition and ability to return to work, and cherry-picked the information supplied Pechero. Alternatively, Gallagher Bassett and Diversimed failed to investigate and determine the qualifications of its designated "independent" medical examiner. IS. Although questioning the qualifications of Dr. Pechero to perform a medical examination, Hashempour proceeded with that examination. Dr. Pechero then reported to Diversimed and Gallagher Bassett that Ray Hashempour could return to work on an unrestricted basis. This opinion was erroneous, made without a complete record of Mr. Hashempour's medical history, and without knowledge of the nature of Hashempour's occupation. As important, it was the result of an outcome oriented examination designed to provide a basis for termination of benefits to Hashempour.
16.
On September 23, 2010, Gallagher Bassett, without a reasonable basis, terminated Hashempour's claim, and ceased paying indemnity and medical benefits due under the Policy. This termination occurred despite repeated request from Hashempour for medical attention and repeated reports of his treating physicians of the need for continued medical attention.
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17.
Gallagher Bassett acting as the agent for ACE wrongfully terminated benefits under the Policy. They were motivated, on information and belief, by a desire to avoid the continued financial obligation undertaken in the Policy at the expense of Ray Hashempour.
18.
Ray Hashempour has suffered from the absence of the income benefits promised when he purchased and paid for the Policy. He has been limited and prevented from obtaining necessary medical attention and medication causing a deterioration in his health condition. He has been subjected to the severe economic impact of this denial, suffering worry, distress and severe damage health and economic future.
19.
At all material times, Gallagher Bassett was as an agent of ACE, acting within the scope of its authority. ACE as was its pattern and practice ratified the conduct of Gallagher Bassett. Diversimed was at all material times doing the bidding of Gallagher Bassett and its principal in purporting to provide Gallagher Bassett and ACE with "savings" by knowingly using incompetent or unqualified medical consultants for medical exams, as undertaken with Ray Hashempour, to his injury and damage. Causes of Action Breach of Contract
20.
ACE promised to pay medical and income benefits in accordance with the terms of its Policy in the event Ray Hashempour became disabled because of an occupational accident. Ray Hashempour suffered an occupational injury resulting in his disability as defined in the Policy and fully cooperated with ACE or its agents in their adjustment of his claim Ray Hashempour was and remains disabled as defined in the Policy.
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21.
ACE's termination of Ray Hashempour's disability benefits constitutes a breach of the insurance policy, for which he now sues. Violations of the Texas Insurance Code
22.
Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition.
23.
Defendants failed to attempt to effectuate a prompt, fair, and equitable settlement of this claim with respect to which its liability had become reasonably clear in violation of Texas Insurance Code 541.060 (a)(2)(A).
24.
Defendants failed to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies.
25.
Defendants failed to provide promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of this claim in violation of Texas Insurance Code 541.060 (a)(3).
26.
Defendants refused to pay a claim without conducting a reasonable investigation with respect to this claim in violation of Texas Insurance Code 541.060 (a)(7).
27.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance coverage to Mr. Hashempour by making an untrue statements of material fact in violation of Texas Insurance Code 541.060 (1).
28.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance coverage by failing to state a material fact that is necessary to make other statements made not misleading in violation of Texas Insurance Code 541.060 (2).
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29.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance to Mr. Hashempour by making a statement in such a manner as to mislead a reasonably prudent person to a false conclusion of material fact, and in failing to disclose a mater required by law to be disclosed in violation of Texas Insurance Code 541.060 (1)
30.
Defendants knowingly committed the foregoing acts, with actual knowledge of their falsity, unfairness, or deception in violation of Texas Insurance Code 541.060 (1).
31.
Defendants' conduct also constituted unfair claims settlement practices in violation of the Texas Insurance Code 542,003, et seq.
Breach of the Duty of Good Faith & Fair Dealing
32.
Plaintiffre-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition.
33,
ACE, as Mr. Hashempour's occupational accident insurer, had a duty to deal fairly and in good faith with him in the processing of his occupational accident claim. Defendant breached this duty by failing and refusing to timely and properly investigate, adjust, pay, and in its denial of his claim in the absence of a reasonable basis for this denial. Defendant knew or should have known that there was no reasonable basis for its delay in payment or denial of this claim, At all material times, the liability of ACE was reasonably clear. As a result, Defendant breached its common law duty of good faith and fair dealing causing injury and damage to Hashempour, for which he further sues.
Legal "Malice" & Unconscionability
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34.
35.
Defendants acted fraudulently and with malice in denying Mr. Hashempour's claim for occupational accident benefits. Defendants' conduct when viewed objectively from its standpoint, at the time of the occurrence complained of in this action, involved an extreme degree of risk to Mr. Hashempour, considering the probability and magnitude of the potential harm to Mr. Hashempour. In addition, Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with a conscious indifference to the rights, safety or welfare of Mr. Hashempour.
36.
Defendants acted in an unconscionable manner in their wrongful denial and delay in the payment of Mr. Hashempour's claim for occupational accident benefits, all for which Hashempour further sues. Violation of the Texas Deceptive Trade Practices Act
37.
38,
The Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) provides additional protections to consumers who are victims of deceptive, improper or illegal acts and practices. Defendants' violations ofthe Texas Insurance Code create an additional cause of action under the DTPA. Defendants' conduct as recited in this petition and their violations of the Texas Insurance Code, as recite herein, also constitute violations of the DTPA for which Hashempour further sues for his damages, Damages
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39.
Plaintiff is entitled to the actual damages resulting from the wrongful and illegal conduct of Defendants. These damages include the consequential damages to his economic welfare from the wrongful denial and delay in payment of occupational accident benefits, mental anguish and physical suffering resulting from this wrongful denial of benefits, and all other actual damages permitted by law. He is also entitled to those damages resulting from the delay in providing medical benefits resulting in permanent injury and damage. For these damages and the conduct recited in this complaint, Defendants are jointly and severally liable.
40.
Plaintiff is further entitled to statutory multiple damages and other penalties as permitted by law. Exemplary Damages
41.
The actions of the Defendants in handling Plaintiffs claim were done knowingly and intentionally or with a conscious or callous disregard for the rights and welfare of the Plaintiff. As such, their actions reflected gross negligence and were so outrageous as to warrant the imposition of punitive or exemplary damages, for which Plaintiff further sues for recovery. Accordingly, Plaintiff seeks such punitive or exemplary damages as may be assessed by the jury in its discretion. Attorneys Fees
42.
This suit was made necessary by the wrongful acts and practices of Defendants. Plaintiff has been forced to retain an attorney to prosecute his claims, for which Plaintiff has agreed to pay a reasonable attorney's fee. In this regard, Plaintiff is entitled to recover his reasonable attorney's fees and expenses incurred and to be incurred for the full prosecution of this claim
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through trial and appeal, if any, that are reasonable and necessary for Plaintiff to obtain the relief he seeks. Accordingly, Plaintiff further seeks recovery of his reasonable attorney's fees pursuant to 541.152, 542.051 and Chapter 9 of the Insurance Code, Section 17.49, et, sea. of the Business and Commerce Code, or Section 38.001, el. ae,q. of the Texas Civ. Prac. & Rem. Code, as amended, or either of them. Disclosures 43. Hashempour requests that each Defendant disclose, within 50 days of service of this request, the information and material described in Rule 194.2(a)-(0 of the Texas Rules of Civil Procedure. Copies of documents and other tangible items responsive to this request must be served on Plaintiff with your Response. Tex. R. Civ. P. 194.4 General Claims 44. All notices required to be given have been given, and all conditions precedent have been satisfied. 45. Plaintiff requests his court costs, together with prejudgment and post-judgment interest on his damages. 46. Plaintiff further demands a jury trial. WHEREFORE, PREMISES CONSIDERED, Plaintiff, Ray Hashempour, prays that the Defendants be cited to appear and answer this action, and following their appearance, he have full trial on the merits of his claim, that he have and recover his actual, statutory and exemplary damages, together with his reasonable attorney's fees, costs, expenses, and interest to which he may be justly entitled, and for general relief.
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Respectfully submitted,
By:
James C. Pl urnmer
Ovuit, pooled by lame. ( 1.1.mente Dht C D.F.Mor.e , Kurkendal, ou.
Da, 201 OM 1,110.36 .05tXt
James C. Plummer, TBA 416075700 Amar Raval, TBA #24046682 PLUMMER & ASSOCIATES 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 (713) 522-2887 (713) 522-3605 (Fax) Jp1ummer@p I ummerlawyers.com David Garcia David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, Texas 78040 956-726-9693 956-726-3421 (fax) Davidg22Qsbcglobal.net ATTORNEYS FOR PLAINTIFF
K:kHafhempourTetition.wpd
Oscar J. Hale, jr. *tate r iotrict Tubge

406TH Judicial District Court 1110 Victoria St., Suite 402 Laredo, Texas 78040
TELEPHONE NO. (956) 523-4954 FAX NO. (956) 523-5074
406@webbcountytx.gov
CAUSE NO: 2011CVF001161D4 STYLE:

RAY HASHEMPOUR VS ACE AMERICAN INSURANCE COMPANY AND ET. AL.
Please take NOTICE that this case is set for CALENDAR CALL on the Justice Center.
1ST
day of
NOVEMBER 2011 at 2:00 P.M. at the 406th District Court, 4th Floor, Webb County
All Calendar Call hearings will be in open court and on the record before the Honorable Judge Oscar J. Hale, Jr. Your presence is MANDATORY unless Counsel for Plaintiff(s) and Defendant(s) file a Joint Pre-Trial Guideline Order (PTGO) with all counsel signatures on the PTGO. You may download the PTGO at our website: www.Webbcountytx,gov/DC406th/Forms Counsel for Plaintiff(s) please note that if you fail to appear your case may be dismissed for lack of prosecution. Counsel for Defendant(s) please note that if you fail to appear for calendar call, a pre-trial guideline order may be entered with or without your approval and/or signature. If there are any questions regarding this matter please feel free to call our office at any time.
Cruz Maldonado Civil Court Coordinator
ww Transmit Confirmation Report ww

P.1 WEBB CO DISTRICT CLERK Fax:956-523-5121 Name/Fax No. 917135223605 Mode Fine Start Aug 4 2011 02:09Pm Time Page Result 1 0 K Note
04,02:09Pm 0'24"
Oscar J. Hale, Jr. Rotate it 'arid 3rubge

406TH Judicial District Court 1110 Victoria St., Suite 402 Laredo, Texas 78040
TELEPHONE NO. (956) 523-4954 EAt NO, (9%) 525-5074
406631webbcountyui.got
CAUSE NO: 201107001161D4 STYLE: RAY HASHEMPOUR

VS ACE AMERICAN INSURANCE COMPANY AND ET AL.
NOVEMBER 2011
Please take NOTICE that this case is stt for CALENDAR CALL on the 1ST day or at 2:00 P.M. at the 406th District Court, 4th floor, Webb County Justice Center.
All Calendar Call hearings will be in open court and on the record before the Honorable Judge Oscar J. Hale, Jr. Your presence is MANDATORY unless Counsel for Plaintiff(s) and Defendant(s) file a Joint Pre-Trial Guideline Order (PTGO) with all counsel signatures on the PTGO.
You
may download the PTGO at our website:
www, WebbcountItx tov/Dc496th/forms

Counsel for Plaintiff(s) please note that if you fail to appear your case may be dismissed for lack of prosecution. Counsel for Defendant(s) please note that if you fail to appear for calendar call, a pre-trial guideline order may be entered with or without your approval and/or signature. If there are any questions regarding this matter please feel free to call our office at any time.
Cruz Maldonado Civil Court Coordinator
3.
CT Corporatio.n
TO:
Service of Process Transmittal

09/07/2011 CT Log Number 519112240
Saverio Rocca, Corporate Counsel ACE Group 436 Walnut Street, 2nd Floor WAO2C Philadelphia, PA 19106 Process Served in Texas ACE American Insurance Company (Domestic State: PA)
RE: FOR:
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE MOVE COMPANY AS FOLLOWS: TITLE OF ACTION: DOCUMENT(S) SERVED: COURT/AGENCY:
Ray Hashempour, Pltf. vs. Ace American Insurance Company, et al., Dfts. Citation, Return Form, Original Petition, Notice 406th Judicial District Court Webb County, TX Case it 2011CVF00116104 Insurance Litigation - Breach of Contract - Ace wrongfully terminated benefits under the Policy C T Corporation System, Dallas, TX By Process Server on 09/0712011 at 14:15 Texas At or Before 10:00 a.m, on the Monday next after the expiration of 20 days - File Written Answer // On November 1, 2011 at 2:00 p.m. - Calendar Call James C. Plummer Plummer a Associates 4203 Montrose Boulevard Suite 270 Houston, 1-)( 77006 713/522-2887 CT has retained the current log, Retain Date: 09/07/2011, Expected Purge Date: 09/12/2011 Image SOP Email Notification, Adrienne Logan ADRIENNE.LOGAN@acegroup,com Email Notification, Marie Morrill marie.morrill@acegroup.com Email Notification, Pamela Martin pamela.martin@acegroup.com Email Notification, Angela Jay angela.jay@acegroup.com Email Notification, Darlene Schneider darlene.schneider@acegroup.com C T Corporation System Beatrice Casarez 350 North St Paul Street Suite 2900 Dallas, TX 75201 214-932-3601
NATURE OF ACTION:
ON WHOM PROCESS WAS SERVED: DATE AND HOUR OF SERVICE: JURISDICTION SERVED APPEARANCE OR ANSWER DUE:
ATTORNEY(S) I SENDER(S):
ACTION ITEMS:
SIGNED: PER: ADDRESS:
TELEPHONE:
Page 1 of 1 / SD
Information displayed on this transmittal is for CT Colporation's record keeping purposes only and Is provided to the recipient for quick reference. This information does not constitute a legal opinion as to the nature of action, the amount of damages, the answer date, or any information contained in the documents themselves, Recipient is responsible for interpreting said documents bnd for taking appropriate action. Signatures on certified mall receipts confirm receipt of package only, not contents.
2011CVF001161 D4
CITATION
THE STATE OF TEXAS

COUNTY OF WEBB
NOTICE TO THE DEFENDANT: "YOU HAVE BEEN SUED, YOU MAY EMPLOY AN ATTORNEY. IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER WITH THE CLERK WHO ISSUED THIS CITATION BY 10:00 A.M. ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THIS CITATION AND PETITION, A DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOU."
TO: ACE AMERICAN INSURANCE COMPANY BY SERVING ITS REGISTERED AGENT CT CORPORATION SYSTEM 350 NORTH PAUL ST DALLAS, TX 75201
DEFENDANT, IN THE HEREINAFTER STYLED AND NUMBERED CAUSE, YOU ARE HEREBY COMMANDED TO APPEAR BEFORE THE 406TH DISTRICT COURT of Webb County, Texas, to be held at the said courthouse of said county in the city of Laredo, Webb County, Texas, by filing a written answer to the Petition of Plaintiff at or before 10:00 O'CLOCK A.M. of the Monday next after the expiration of 20 days after the date of service thereof, a copy of which accompanies this citation, in the Cause #: 2011CVF001161 D4 , styled: RAY HASHENPOUR, PLAINTIFF VS. ACE AMERICAN INSURANCE COMPANY, GALAGHER BASSETT SERVICES, INC. AND DIVERSIMED, INC., DEFENDANTS Said Plaintiff's Petition was filed on 08/03/2011 in said court by: JAMES PLUMMER, ATTORNEY FOR PLAINTIFF 4203 MONTROSE BOULEVARD SUITE 270 HOUSTON, TX 77006
WITNESS ESTHER DEGOLLADO, DISTRICT CLERK OF WEBB COUNTY, TEXAS, Issued and given under my hand and seal of said court at office, this 5 day of August, 2011.
CLERK
OF
COUR T
ESTHER DEGOLLADO WEBB COUNTY DISTRICT CLERIC P.O. SOX 667 LARE TX 7804Z
BY
DEPUTY
2011CVF001161 D4
OFFICER' S RETURN Came to hand on the O'CLOCK within the COUNTY of day of , 2011 at
.M. Executed at at O'CLOCK .M. on
the day of , 2011, by delivering to the within named ACE AMERICAN INSURANCE COMPANY, each, in person, a true copy of this citation together with the accompanying copy of the petition, having first attached such copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery. The distance actually traveled by me in serving such process was miles, and my fees are as follows: Total Fee for serving this citation To certify which, witness my hand officially.
SHERIFF, CONSTABLE COUNTY, TEXAS
BY
DEPUTY
THE STATE OF TEXAS } COUNTY OF WEBB
Before me, the undersigned authority, on this day personally appeared , who after being duly sworn, upon oath said that a notice, of which the above is a true copy, was by him/her delivered to on the day of SWORN TO AND SUBSCRIBED BEFORE ME on the day of , to certify which witness my hand and seal of office. NOTARY PUBLIC
MY COMMISSION EXPIRES

Filed 11 August 3 P12:39 Esther Downed District Clerk Webb District 011CVF1.1181D4
'pee%
4b.
CAUSE NO. 020041- F00 //b RAY HASHEMPOUR

VS.
WV
IN THE DISTRICT C
WEBB COUNTY , TEXAS
ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., & DIVERSIMED, INC,
1/P6 JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF THE COURT: This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACE American Insurance Company, Gallagher Bassett Services, Inc., and Diversimed, Inc. I. Discovery in this case is intended to be conducted under Level 2, pursuant to Texas Rule of Civil Procedure 190.3.
Parties
2. 3.
Plaintiff, Ray Hashempour ("Hashempour"), is a resident citizen of the State of Texas, Defendant, ACE American Insurance Company ("ACE"), is a domestic or foreign insurance company licensed to do business and doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, CT Corporation System, 350 North Paul St., Dallas, TX, 75201, or wherever it may be found.
4.
Defendant, Gallagher Bassett Services, Inc. ("Gallagher Bassett") is a domestic or foreign corporation doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, Prentice Hall Corp. System, 701 Brazos Street, Suite 1050, Austin, TX 7870 I , or wherever it may be found.
5.
Defendant, Diversimed, Inc. ("Diversimed"), is a domestic or foreign corporation doing business in the State of Texas, and may be served by serving its registered agent, Lonnie Harvey, at I 011 Orangewalk Driver, Brandon, Florida 33511, or wherever it may be found. Venue
6.
Venue is proper in Webb County, Texas under Tex. Civ. Frac. & Rem. Code 15.002(a)( I) & (4) in that all or a substantial part of the events or omissions giving rise to this claim occurred in Webb County, and Hashempour resided at all relevant times in Webb County, Texas. The obligations under the insurance policy at issue were to be performed in Webb County, The investigation and adjustment of Hashempour's claim, including
communications to and from Defendants occurred in Webb County, Texas. Venue is also proper pursuant to Tex, Civ. Frac. & Rem. Code 15.032 since ACE is an "accident insurance company" as that term is defined by law, and Ray Hashempour at relevant times was a resident of Webb County Texas.
Facts & Factual Background
7.
8.
An initial diagnosis of Hashempour was lumbar spondylosis and lumbar disc herniation, a condition caused by that injury . His symptoms included severe right leg pain, and numbness and weakness in his lower extremities.
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9.
In October of 2009, Ray Hashempour underwent a lumbar fusion. Although the initial prognosis for the surgical outcome was positive, in medical follow ups following that surgery, Hashem pour reported the pain getting progressively worse. He also reported, along with other disabling conditions, cramping in the legs, pain through the feet, legs and back, all greatly restricting his activities of daily living.
10.
By January of 2010, the follow up diagnosis by Hashempours treating doctors was lumbar post-lam inectomy and fusion, and chronic pain syndrome. His treating physicians opined he was totally incapacitated and unable to return to work.
II.
Before his February, 2009 injury, Hashempour purchased an occupational accident insurance policy from ACE American Insurance Company ("ACE"), That policy was Policy No. TOC N01303533 (the "Policy"). The Policy provided for the payment wage replacement and medical benefits in accordance with its terms in the event the insured suffered an occupational injury resulting in his disability. Temporary Total Disability benefits were payable for a maximum period of 104 weeks. Permanent Total Disability benefits were payable to the date the insured's Social Security Disability Award stopped.
12.
Hashempour timely gave notice to ACE or its claims administrator, Broadspire, of his occupational injury. With the documented medical supplied, Broadspire determined that Hashempour met the Policy requirements for Temporary Total Disability and proceed to pay both indemnity and medical benefits.
13.
On March 1, 2010, management for Hashempour's claim was transferred from Broadspire to Gallagher Bassett Services ("Gallagher Bassett"). Hashempour or his treating physicians continued to supply Gallagher Bassett with reports of his medical condition opining in
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significant part that Ray Hashem pour remained "unable to return to work" and that he remained "totally incapacitated" from his occupation. 14. Gallagher Bassett then engaged Diversimed, Inc. ("Diversimed") to arrange for an alleged "independent" medical examination ofHashempour. Diversimed then engaged a Dr. Ruben Pechero to perform that medical examination. Diversimed or Gallagher Bassett or both failed to determine Pechero's qualifications to provide an objective medical assessment of Hashempour's condition and ability to return to work, and cherry-picked the information supplied Pechero. Alternatively, Gallagher Bassett and Diversimed failed to investigate and determine the qualifications of its designated "independent" medical examiner. 15. Although questioning the qualifications of Dr. Pechero to perform a medical examination, Hashempour proceeded with that examination. Dr. Pechero then reported to Diversimed and Gallagher Bassett that Ray Hashempour could return to work on an unrestricted basis. This opinion was erroneous, made without a complete record of Mr. Hashempour's medical history, and without knowledge of the nature of Hashem pour' s occupation. As important, it was the result of an outcome oriented examination designed to provide a basis for termination of benefits to Hashempour. 16. On September 23, 2010, Gallagher Bassett, without a reasonable basis, terminated
Hashempour's claim, and ceased paying indemnity and medical benefits due under the
Policy. This termination occurred despite repeated request from Hashempour for medical attention and repeated reports of his treating physicians of the need for continued medical attention.
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17.
Gallagher Bassett acting as the agent for ACE wrongfully terminated benefits under the Policy. They were motivated, on information and belief, by a desire to avoid the continued financial obligation undertaken in the Policy at the expense of Ray Hashempour.
18.
Ray Hashempour has suffered from the absence of the income benefits promised when he purchased and paid for the Policy. He has been limited and prevented from obtaining necessary medical attention and medication causing a deterioration in his health condition. He has been subjected to the severe economic impact ofthis denial, suffering worry, distress and severe damage health and economic future.
19.
At all material times, Gallagher Bassett was as an agent of ACE, acting within the scope of its authority. ACE as was its pattern and practice ratified the conduct of Gallagher Bassett. Diversimed was at all material times doing the bidding of Gallagher Bassett and its principal in purporting to provide Gallagher Bassett and ACE with "savings" by knowingly using incompetent or unqualified medical consultants for medical exams, as undertaken with Ray Hashempour, to his injury and damage.
Causes of Action Breach of Contract

20. ACE promised to pay medical and income benefits in accordance with the terms of its Policy in the event Ray Hashempour became disabled because of an occupational accident. Ray Hashempour suffered an occupational injury resulting in his disability as defined in the Policy and fully cooperated with ACE or its agents in their adjustment of his claim. Ray Hashempour was and remains disabled as defined in the Policy.
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21.
ACE's termination of Ray Hashempour's disability benefits constitutes a breach of the insurance policy, for which he now sues.
Violations of the Texas Insurance Code
22.
23.
Defendants failed to attempt to effectuate a prompt, fair, and equitable settlement of this claim with respect to which its liability had become reasonably clear in violation of Texas Insurance Code 541.060 (a)(2)(A).
24.
Defendants failed to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies.
25.
Defendants failed to provide promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of this claim in violation of Texas Insurance Code 541.060 (a)(3).
26.
Defendants refused to pay a claim without conducting a reasonable investigation with respect to this claim in violation of Texas Insurance Code 541.060 (a)(7).
27.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance coverage to Mr. Hashempour by making an untrue statements of material fact in violation of Texas Insurance Code 541.060 (1).
28.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance coverage by failing to state a material fact that is necessary to make other statements made not misleading in violation of Texas Insurance Code 541.060 (2).
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29.
Defendants misrepresented the insurance policy under which it afforded occupational accident insurance to Mr. Hashempour by making a statement in such a manner as to mislead a reasonably prudent person to a false conclusion of material fact, and in failing to disclose a mater required by law to be disclosed in violation of Texas Insurance Code 541.060 (1)
30.
Defendants knowingly committed the foregoing acts, with actual knowledge of their falsity, unfairness, or deception in violation of Texas Insurance Code 541.060 (1).
31,
Defendants' conduct also constituted unfair claims settlement practices in violation of the Texas Insurance Code 542.003, et seq.

32. Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition. 33. ACE, as Mr. Hashempour's occupational accident insurer, had a duty to deal fairly and in good faith with him in the processing of his occupational accident claim. Defendant breached this duty by failing and refusing to timely and properly investigate, adjust, pay, and in its denial of his claim in the absence of a reasonable basis for this denial. Defendant knew or should have known that there was no reasonable basis for its delay in payment or denial of this claim. At all material times, the liability of ACE was reasonably clear. As a result, Defendant breached its common law duty of good faith and fair dealing causing injury and damage to Hashempour, for which he further sues.
Legal "Malice" & Unconscionability
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34.
Plaint i ff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition.
35.
Defendants acted fraudulently and with malice in denying Mr. Hashempour's claim for occupational accident benefits. Defendants' conduct when viewed objectively from its standpoint, at the time of the occurrence complained of in this action, involved an extreme degree of risk to Mr. Hashempour, considering the probability and magnitude of the potential harm to Mr. Hashempour. In addition, Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with a conscious indifference to the rights, safety or welfare of Mr. Hashempour.
36.
Defendants acted in an unconscionable manner in their wrongful denial and delay in the payment of Mr. Hashempour's claim for occupational accident benefits, all for which Hashempour further sues.
Violation of the Texas Deceptive Trade Practices Act
37.
38.
The Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) provides additional protections to consumers who are victims of deceptive, improper or illegal acts and practices. Defendants' violations ofthe Texas Insurance Code create an additional cause of action under the DTPA. Defendants' conduct as recited in this petition and their violations of the Texas Insurance Code, as recite herein, also constitute violations of the DTPA for which Hashempour further sues for his damages.
Dam ages
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39.
Plaintiff is entitled to the actual damages resulting from the wrongful and illegal conducfof Defendants, These damages include the consequential damages to his economic welfare from the wrongful denial and delay in payment of occupational accident benefits, mental anguish and physical suffering resulting from this wrongful denial of benefits, and all other actual damages permitted by law. He is also entitled to those damages resulting from the delay in providing medical benefits resulting in permanent injury and damage. For these damages and the conduct recited in this complaint, Defendants are jointly and severally liable.
40.
Plaintiff is further entitled to statutory multiple damages and other penalties as permitted by law. Exemplary Damages
41.
The actions of the Defendants in handling Plaintiff's claim were done knowingly and intentionally or with a conscious or callous disregard for the rights and welfare of the Plaintiff. As such, their actions reflected gross negligence and were so outrageous as to warrant the imposition of punitive or exemplary damages, for which Plaintiff further sues for recovery. Accordingly, Plaintiff seeks such punitive or exemplary damages as may be assessed by the jury in its discretion. Attorneys Fees
42.
This suit was made necessary by the wrongful acts and practices of Defendants. Plaintiff has been forced to retain an attorney to prosecute his claims, for which Plaintiff has agreed to pay a reasonable attorney's fee. In this regard, Plaintiff is entitled to recover his reasonable attorney's fees and expenses incurred and to be incurred for the full prosecution ofthis claim
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through trial and appeal, if any, that are reasonable and necessary for Plainti ff to obtain the relief he seeks. Accordingly, Plaintiff further seeks recovery of his reasonable attorney's fees pursuant to 041.152, 542.051 and Chapter 9 of the Insurance Code, Section 17.49, sga. of the Business and Commerce Code, or Section 38.001, et mg. of the Texas C iv. Prac. & Rem. Code, as amended, or either of them.
Disclosures 43. Hashempour requests that each Defendant disclose, within 50 days of service of this request, the information and material described in Rule 194.2(a)-(l) of the Texas Rules of Civil Procedure. Copies of documents and other tangible items responsive to this request must be served on Plaintiff with your Response. Tex. R. Civ. P. 194.4
General Claims
44.
All notices required to be given have been given, and all conditions precedent have been satisfied.
45.
Plaintiff requests his court costs, together with prejudgment and post-judgment interest on his damages.
46.
Plaintiff further demands a jury trial. WHEREFORE, PREMISES CONSIDERED, Plaintiff, Ray Hashempour, prays that the
Defendants be cited to appear and answer this action, and following their appearance, he have full trial on the merits of his claim, that he have and recover his actual, statutory and exemplary damages, together with his reasonable attorney's fees, costs, expenses, and interest to which he may be justly entitled, and for general relief.
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James C.
DOIaly signed by /mei C. Minnow DH: cm... Plyrnr.C.Plurnrno 414,0eAdaY, erail)01...00.1rnelOwyt 3(0
By;
Plummer
--Dne:1011.04.03 ROM -05W1
James C. Plummer, TBA #16075700 Amar Raval, TBA #24046682 PLUMMER & ASSOCIATES 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 (713) 522-2887 (713) 522-3605 (Fax) Jplummer@plummerlawyers.corn David Garcia David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, Texas 78040 956-726-9693 956-726-3421 (fax) Davidg22@sbcglobal.net ATTORNEYS FOR PLAINTIFF
K:WashempourVelition.wpd
4.

Filed 11 September 30 P5:28 Esther Degollado District Clerk Webb District 2011-CVF001161D4
CAUSE NO. 2011-CVF001161D4 RAY HASHEMPOUR, Plaintiff, V. ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., & DIVERSIMED, INC., Defendants.
IN THE DISTRICT COURT
406TH JUDICIAL DISTRICT
WEBB COUNTY, TEXAS
DEP ENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER COME NOW Defendants Ace American Insurance Company ("Ace") and Gallagher Bassett Services, Inc. ("Gallagher") (hereinafter referred to as "Defendants ACE and Gallagher") and file their Motion to Transfer Venue and Subject Thereto and Without Waiving Same Original Answer to Plaintiff's Original Petition, and respectfully state as follows: I. DEFENDANTS ACE AND GALLAGHER'S MOTION TO TRANSFER VENUE 1. Defendants ACE and Gallagher specifically (a) deny any and all venue facts pled in Plaintiff's Original Petition, (b) deny that venue of this action is proper in Webb County, Texas ("Webb County") under the Texas Civil Practice & Remedies Code, (c) deny that all or a substantial part of the alleged events or omissions giving rise to the claims asserted in Plaintiff's Original Petition occurred in Webb County, (d) deny that Plaintiff resided at all relevant times, or any relevant time in Webb County, (e) deny that the obligations under the insurance policy at issue were to be performed in Webb County, (f) deny that the investigation and adjustment of
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECr THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 1
Plaintiff's claim, including communications to and from Plaintiff occurred in Webb County, and (g) deny that Webb County is a convenient venue for Plaintiff's lawsuit. 2. Texas Civil Practice and Remedies Code Section 15.002 states: (a) Except as otherwise provided by this subchapter or Subchapter B or C, all
lawsuits shall be brought: (1) (2) (3) (4) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person; in the county of the defendant's principal office in this state, if the defendant is not a natural person; or if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Texas Civil Practice and Remedies Code Section 15.032 states:
Suit against fire, marine, or inland insurance companies may also be commenced in any county
in which the insured property was situated. A suit on a policy may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health, and accident insurance company in the county in which the company's principal office in this state is located or in the county in which the loss has occurred or in which the policyholder or beneficiary instituting the suit resided at the time the cause of action accrued. (Emphasis added)
3.
Plaintiff's cause of action arises out of the adjustment and handling of an
insurance claim under an Occupational Accident Policy ("Policy"). More specifically, the propriety of the independent medical examination by a duly licensed Texas physician in Hidalgo County, Texas is at issue. 4. 5. ACE issued the Policy and Gallagher provided adjusting services. The injury allegedly giving rise to the claim occurred in Edinson, New Jersey.
ACE is incotporated, domiciled and with its principal place of business in Pennsylvania. ACE has Texas offices in Houston and Dallas.
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSE1T SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 2
6.
Gallagher is incorporated in Delaware with its principal place of business in
Illinois. The adjusting and handling of Plaintiff's claim was performed from Gallagher's office in Kansas City, Missouri. 7. Diversimed, Inc. ("Diversimed") is a Florida corporation with its principal place
of business in Florida. Diversimed retained Dr. Pechero. Dr. Pechero provides medical services in Hidalgo County, Texas ("Hidalgo County"), and on information and belief lives in Hidalgo County. 8. Plaintiff lived at all times relevant to his claim in Torreon, Coahuila, Mexico. 1
Plaintiff sent numerous faxes and emails concerning his claim to adjusters, including Gallagher, from Torreon, Coahuila, Mexico. In those communications, Plaintiff represented that he resided in Toffeon, Coahuila, Mexico with his wife because she was unable to live in the United States. Plaintiff represented that because he resided in Torreon, Coahuila, Mexico, that travel for medical treatment to the United States was difficult. As a result, Plaintiff received a significant portion of the medical treatment related to his claim in Torreon, Coahuila, Mexico. Plaintiff also received medical treatment in Bexar County, Texas ("Bexar County") (where he had surgery), Hanis County, Texas ("Harris County"), and Hidalgo County where he was examined by Dr. Pechero, the fact giving rise to Plaintiff's cause of action, in addition to Webb County. 9. At no time did Plaintiff maintain a place of residence in Webb County during the
pendency of his occupational accident injury claim. Plaintiff's Webb County address, 5912 San Bernardo Avenue, Laredo, Texas, is a United States Postal Service location. Although, Plaintiff was sent correspondence and payments to a P.O. Box at the United States Postal Service location
Plaintiff, a long haul truck driver on contract with Swift Transportation Company, Inc. ("Swift"), had previously resided in Friendship, Tennessee.
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DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETI' SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 3
in Webb County as part of the adjustment of his claim, Plaintiff did not reside in Webb County. Plaintiff could not have resided at 5912 San Bernardo Avenue, Laredo, Texas, but rather only maintained a P.O. Box for receiving mail in Webb County. 10. This case should be transferred out of Webb County to Harris County because
Webb County is not a county where all or a substantial part of the events or omissions giving rise to this lawsuit occurred. Tex. Civ. Prac. & Rem. Code 15.002(a)(1). ACE is located in Pennsylvania and the Policy, the subject of this lawsuit, was delivered to the first named insured, Swift, in Arizona. Gallagher performed aljusting services for the claim from Kansas City, Missouri. Plaintiff received communications from Gallagher while in Torreon, Coahuila, Mexico. Diversimed is located in Florida and it retained Dr. Pechero to conduct an independent medical examination which occurred in Hidalgo County. The claim adjusting, therefore, occurred in Kansas City, Missouri and Torreon, Coahuila, Mexico. Other than the receipt of mail, there is no determinative fact that Plaintiff can point to that involves Webb County. 11. Further, Plaintiff was not a resident of Webb County at the time of the accrual of
the cause of action. Tex. Civ. Prac. & Rem. Code 15.002(a)(4). 12. Venue for this cause of action should be transferred to Harris County. Venue is
proper in the county of a defendant's principal office in Texas if the defendant is not a natural person. Tex. Civ. Prac. & Rem. Code 15.002(a)(3); Tex. Civ. Prac. & Rem. Code 15.032. ACE has an office in Texas in Harris and Dallas counties, and part of the medical treatment occurred in Harris County. 13. In the alternative, venue for this cause of action should be transferred to Hidalgo
County. Venue is proper in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Tex. Civ. Pmc. & Rem. Code 15.002(a)(1). The
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT ThERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 4
independent medical examination that Plaintiff alleges was improper, occurred in Hidalgo County. 14. In the further alternative, Defendants ACE and Gallagher object to venue in Webb
County in that same is an inconvenient venue. Maintenance of the action in Webb County would work an injustice on Defendants ACE and Gallagher. Plaintiff has received medical treatment in both Harris County and Hidalgo County for the injuries related to his claim, as well as, Bexar County, and Torreon, Coahuila, Mexico. Therefore, venue in a county other than Webb County would not be an economic or personal hardship on Plaintiff. The balance of the interests of all parties predominates in favor of the action being brought in Harris County, or in the alternative, Hidalgo County. Tex. Civ. Prac. & Rem. Code 15.002(b).
WHEREFORE, PREMISES CONSIDERED, this case should be transferred to Harris
County. Venue is proper in Harris County under Texas Civil Practice & Remedies Code 15.002(a)(3) and Texas Civil Practice & Remedies Code 15.032 because ACE has its principal office in Texas in Harris County. In the alternative, this case should be transferred to Hidalgo County. Venue is proper in Hidalgo County under Tex. Civ. Prac. & Rem. Code 15.002(a)(1) because all or a substantial part of the events or omissions giving rise to the claim occurred in Hidalgo, County. In the further alternative, venue is also proper in Harris County or Hidalgo County under Texas Civil Practice & Remedies Code 15.002(b). Because Plaintiff did not reside in Webb County, Plaintiff's reliance on Tex. Civ. Prac. & Rem. Code 15.002(a)(4) is unavailing. Therefore, Defendants ACE and Gallagher pray that the Court transfer venue from Webb County to Harris County and for all further relief, in equity and at law, to which they are entitled.
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 5
IL
SUBJECT TO THEIR MOTION TO TRANSFER VENUE, DEFENDANTS ACE AND GALLAGHER'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
Defendants ACE and Gallagher file subject to but without waiving their Motion to Transfer Venue, their Original Answer and Affirmative Defenses as follows: General Denial 1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants ACE and
Gallagher generally deny each and every allegation pled by Plaintiff and all subsequent amendments and supplements thereto, and require that Plaintiff prove same by the standard of proof provided by the Constitution and laws of this State. Affirmative Defenses 2. Defendants ACE and Gallagher affirmatively assert that Plaintiffs' claims are
precluded by the terms, conditions, covenants, definitions, obligations, provisions, exclusions, limits, sublimits, and endorsements of the Policy issued by ACE to Swift, which Policy is incorporated herein as though set forth verbatim. Plaintiff' s claims are therefore barred in whole or in part. 3. Defendants ACE and Gallagher specifically deny that Plaintiff complied with all
conditions precedent under the Policy. 4. Defendants ACE and Gallagher assert that all benefits owed Plaintiff under the
Policy have been paid. 5. In the strict alternative, Defendants ACE and Gallagher are not liable to Plaintiff
in an amount greater than the limits set forth in the Policy.
Page 6
6. limitations. 7.
To the extent applicable, Defendants ACE and Gallagher assert the statute of
Defendants ACE and Gallagher affirmatively deny that they violated the Texas
Insurance Code or the Texas Deceptive Trade Practices Act. 8. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled to
punitive damages; however, in the alternative, if the Court makes an award of punitive damages, Defendants ACE and Gallagher invoke their rights under the due process clause of the Fifth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment of the United States Constitution. Defendants ACE and Gallagher affirmatively plead that Plaintiff's pleading of punitive and/or exemplary damages is violative of the due process clauses of the Fifth and Fourteenth Amendments inasmuch as punitive and/or exemplary damages can be assessed: a. b. c. In an amount left to the discretion of the jury and judge; In assessing such sums, the decision of the jury need only be based on vote of ten jurors and does not require a unanimous verdict; hi assessing such penalty or exemplary awards, Plaintiff need only prove the theory of gross negligence or conscious indifference on a "preponderance of the evidence" standard and not "beyond a reasonable doubt" standard as should be required in assessing a punishment award; Further, Defendants ACE and Gallagher, who are subject to an award, if any, do not have the right to refuse to testify against themselves, but must in fact take the stand and/or give deposition testimony or subject its company to the consequences of a default judgment; The assessment of such a punishment and/or exemplary award is not based upon a clearly defined statutory enactment setting forth a specific mens rea requirement and/or the prerequisites of criminal fine and in effect, allows the assessment of such awards even
d.
e.
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT 'THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 7
though there are no special standards, limits or other statutory requirements set forth that define the mens rea and scope and limit of such awards. Therefore, the awards are unduly vague and do not meet the requirements of due process; and f. In essence, Defendants ACE and Gallagher are subject to all of the hazards and risks of what in essence amounts to a fine, and in fact, such awards often exceed normal criminal fines, but Defendants ACE and Gallagher receive none of the basic rights accorded to a criminal defendant when being subjected to possible criminal penalties.
9.
Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled to
punitive damages; however, in the alternative, if the Court makes an award of punitive damages, Defendants ACE and Gallagher affirmatively assert that Plaintiff's claim for punitive damages be denied as violative of the equal protection rights guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States, the provisions of the Eighth Amendment to the Constitution of the United States, and the Constitution of the State of Texas, Article 1, Sections 13 and 19. 10. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled to
punitive damages; however, in the alternative, if the Court makes an award of punitive damages, such an award must not violate Defendants' right to due process by being arbitrary, unjust or grossly excessive. An award of punitive damages must have a reasonable relationship to the harm to the plaintiff and may not constitute an improper taking by attempting to compensate alleged victims not before the Court. 11. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled to
punitive or exemplary damages; however, in the alternative, an award of punitive or exemplary damages may only be awarded upon a unanimous finding by clear and convincing evidence by the jury of malice or gross negligence. Further, an award of punitive or exemplary damages may
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETI' SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 8
not be maintained unless actual damages beyond nominal damages are awarded by the factfinder. 12. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled to
punitive or exemplary damages; however, in the alternative, if the Court makes an award of punitive or exemplary damages, Defendants ACE and Gallagher affirmatively asserts that any such award of punitive or exemplary damages is subject to Texas Civil Practice and Remedies Code Chapter 41 and all caps or limits on the award of punitive or exemplary damages. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Ace American Insurance Company and Gallagher Bassett Services, Inc. pray that, SUBJECT TO AND WITHOUT WAIVER OF THEIR MOTION TO TRANSFER VENUE, upon final trial and hearing hereof, Plaintiff take nothing and that Defendants ACE and Gallagher recover their costs, fees, and expenses, and for all relief, at law and in equity, to which they are entitled. Respectfully submitted,
COZEN O'CONNOR cA-GeyE ectAA l
By: Alicia G. Curran State Bar Number 12587500 Craig C. Crafton State Bar Number 24036413 1717 Main Street, Suite 3400 Dallas, Texas 75201-7335 Telephone: (214) 462-3000 Facsimile: (214) 462-3299
ATTORNEYS FOR DEFENDANTS ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC.
Page 9
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of September, 2011, a true and correct copy of the above and foregoing was sent to Plaintiff's counsel, via certified mail, return receipt requested. James C. Plummer, Esq. Amar Raval, Esq. Plummer & Associates 4203 Montrose Blvd, Suite 270 Houston, TX 77006 David Garcia, Esq. David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, TX 78040
Lc-,
GeA
Alicia G. Curran
DALLAS\547730\2 312049.000
DEFENDANT ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUE AND SUBJECT 'THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWER
Page 10

Filed 11 September 12 A7:49 Esther Degollado District Clerk
CAUSE NO. 2011CVF00116104 RAY HASHEMPOUR

VS.
IN ME DISTRICT CO WEBB COUNTY , TEXAS
ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC., & DIVERSIMED, INC.
406th JUDICIAL DISTRICT
PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION TO THE HONORABLE JUDGE OF THE COURT: This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACE American Insurance Company, Gallagher Bassett Services, Inc., Diversimed, Inc., and Ruben D. Pechero. I. Discovery in this case is intended to be conducted under Level 2, pursuant to Texas Rule of Civil Procedure 190.3.
Parties
2. 3.
Plaintiff; Ray Hashempour ("Hashempour"), is a resident citizen of the State of Texas. Defendant, ACE American Insurance Company ("ACE"), is a domestic or foreign insurance company licensed to do business and doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, CT Corporation System, 350 North Paul St., Dallas, TX, 75201, or wherever it may be found.
4.
Defendant, Gallagher Bassett Services, Inc. ("Gallagher Bassett") is a domestic or foreign corporation doing business in the State of Texas. This Defendant may be served with service of process by serving its registered agent, Prentice Hall Corp. System, 701 Brazos Street, Suite 1050, Austin, TX 78701, or wherever it may be found.
9..a.1.19,2
A
the
oW of theF cert 20 day of GOLLADO ESTHER DE d C urt ler of th
5.
Defendant, Diversimed, Inc, ("Diversimed"), is a domestic or foreign corporation doing business in the State of Texas, and may be served by serving its registered agent, Lonnie Harvey, at 1011 Orangewalk Driver, Brandon, Florida 33511, or wherever it may be found.
6.
Defendant, Ruben D. Pechero ("Pechero"), is a resident citizen of the State of Texas, and may be served 1005 East Nolana, McAllen, Texas 78504 or 5508 N. Cynthia, McAllen, Texas 78504, or wherever he may be found. Ven ue
7.
Venue is proper in Webb County, Texas under Tex. Civ. Prac. & Rem. Code 15.002(a)(1) & (4) in that all or a substantial part of the events or omissions giving rise to this claim occurred in Webb County, and Hashempour resided at all relevant times in Webb County, Texas. The obligations under the insurance policy at issue were to be performed in Webb County. The investigation and adjustment of Hashempour's claim, including communications to and from Defendants occurred in Webb County, Texas. Venue is also proper pursuant to Tex. Civ. Prac. & Rem. Code 15.032 since ACE is an "accident insurance company" as that term is defined by law, and Ray Hashempour at relevant times was a resident of Webb County Texas. Facts & Factual Background
8.
-2-
KAHashempour \Petition - First Amencled.wpd
9.
An initial diagnosis of Hashempour was lumbar spondylosis and lumbar disc herniation, a condition caused by that injury . His symptoms included severe right leg pain, and numbness and weakness in his lower extremities.
10.
In October of 2009, Ray Hashempour underwent a lumbar fusion. Although the initial prognosis for the surgical outcome was positive, in medical follow ups, Hashempour reported the pain getting progressively worse. He also reported, along with other disabling conditions, cramping in the legs, pain through the feet, legs and back, all greatly restricting his activities of daily living.
11.
By January of 2010, the follow up diagnosis by Hashempour's treating doctors was lumbar post-laminectomy and fusion, and chronic pain syndrome. His treating physicians opined he was totally incapacitated and unable to return to work,
12.
Before his February, 2009 injury, Hashempour purchased an occupational accident insurance policy from ACE American Insurance Company ("ACE"). That policy was Policy No. TOC N01303533 (the "Policy"). The policyholder was Swift Transportation Co., Inc. Hashempour was among the eligible class of persons eligible for this coverage. The Policy provided for the payment wage replacement and medical benefits in accordance with its terms in the event the insured suffered an occupational injury resulting in his disability. Temporary Total Disability benefits were payable for a maximum period of 104 weeks. Permanent Total Disability benefits were payable to the date the insured's Social Security Disability Award stopped.
13.
Hashempour timely gave notice to ACE or its claims administrator, Broadspire, of his occupational injury. With the documented medical supplied, Broadspire determined that
-3-
KAHashempourTctition First Amended.wpd
Hashempour met the Policy requirements for Temporary Total Disability and proceed to pay both indemnity and medical benefits. 14. On March 1, 2010, management for Hashempour's claim was transferred from Broadspire to Gallagher Bassett Services ("Gallagher Bassett"). Hashempour or his treating physicians continued to supply Gallagher Bassett with reports of his medical condition opining in significant part that Ray Hashempour remained "unable to return to work" and that he remained "totally incapacitated" from his occupation. However, promptly following this transfer, the new claims administrator, Gallagher Basset began to delay payment of benefits and subsequently terminated those benefits. 15. Gallagher Bassett then engaged Diversimed, Inc. ("Diversimed") to arrange for an alleged "independent" medical examination of Hashempour. Diversimed then engaged a Dr. Ruben Pechero to perform that medical examination. Diversimed or Gallagher Bassett or both failed to determine Pechero's qualifications to provide an objective medical assessment of Hashempour's condition and ability to return to work, and cherry-picked the information supplied Pechero. Alternatively, ACE and Diversimed failed to investigate and determine the qualifications of its designated "independent" medical examiner. For example, ACE knew or should have known that Ray Hashempour required a Department of Transportation medical clearance before he could return to work. However, neither ACE or Diversimed made any effort to determine whether Pechero was qualified to perform the requisite DOT physical examination. On information and believe, Pechero was not so qualified yet he was called upon to determine whether Ray Hashempour could return to work in his given state of health.
-4-
KAHashempolaTetition - First Amcilded.wpd
16.
Although questioning the qualifications of Dr. Pechero to perform a medical examination, Hashempour proceeded with that examination. Pechero as with ACE and Diversimed also represented his was an "independent" medical exam. Implicit in the referral of ACE and Diversimed to Pechero for this examination was the representation that would be fair, objective, and consistent with the requirements of the Policy. Hashempour relied in these representations to his detriment. Dr. Pechero initially reported to Hashempour that he could no longer drive - had to find another line ofwork. However, Gallagher Bassett subsequently reported Pechero opined that Ray Hashempour could return to work on an unrestricted basis. This opinion was erroneous, made without a complete record of Mr. Hashempour's medical history, and without knowledge of the nature of Hashempour's occupation. As important, it was the result of an outcome oriented examination designed to provide a basis for termination of benefits to Hashempour.
17.
Pechero, however, on information and belief ignored the findings and opinions of Hashempour's treating physicians, cherry picked the information he chose to rely on, and conducted an outcome oriented examination. Pechero then reported to ACE that Ray Hashempour could return to work on an unrestricted basis. This opinion was erroneous, made without a complete record of Mr. Hashempour's medical history, and without knowledge of the nature of Hashempour's occupation. As important, Pechero applied a standard for his opinion not found in the Policy further reflecting his examination was an outcome oriented examination designed to provide a basis for termination of benefits to Hashempour. Pechero's conduct in this regard was in breach of the representations about
-5-
K: HashempourTetition - First Amended.wpd
the nature of his examination, and false, misleading, deceptive, and unconscionable. This conduct caused injury and damage to Ray Hashempour. 18, On September 23, 2010, Gallagher Bassett, without a reasonable basis, terminated Hashempour's claim, and ceased paying indemnity and medical benefits due under the Policy. This termination occurred despite repeated request from Hashempour for medical attention and repeated reports of his treating physicians of the need for continued medical attention. 19. Gallagher Bassett acting as the agent for ACE wrongfully terminated benefits under the Policy. They were motivated, on information and belief', by a desire to avoid the continued financial obligation undertaken in the Policy at the expense of Ray Hashempour. 20. Ray Hashempour has suffered from the absence of the income benefits promised when he purchased and paid for the Policy. He has been limited and prevented from obtaining necessary medical attention and medication causing a deterioration in his health condition. He has been subjected to the severe economic impact ofthis denial, suffering worry, distress and severe damage health and economic future. 21. At all material times, Gallagher Bassett along with Diversimed were agents of ACE, acting within the scope of their authority. ACE as was its pattern and practice ratified the conduct of Gallagher Bassett. Diversimed was at all material times doing the bidding of Gallagher Bassett and its principal in purporting to provide Gallagher Bassett and ACE with "savings" by knowingly using incompetent or unqualified medical consultants for medical exams, as undertaken with Ray Hashempour, to his injury and damage. Causes of Action
-6-
KAI-lishempour1Pelition - First Arnended.wpd
Breach of Contract 22. ACE promised to pay medical and income benefits in accordance with the terms of its Policy in the event Ray Hashempour became disabled because of an occupational accident. Ray Hashempour suffered an occupational injury resulting in his disability as defined in the Policy and fiilly cooperated with ACE or its agents in their adjustment of his claim. Ray Hashempour was and remains disabled as defined in the Policy. 23. ACE's termination of Ray Hashempour's disability benefits constitutes a breach of the insurance policy, for which he now sues. Violations of the Texas Insurance Code 24. Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition. 25. Defendants failed to attempt to effectuate a prompt, fair, and equitable settlement of this claim with respect to which its liability had become reasonably clear in violation of Texas Insurance Code 541.060 (a)(2)(A). 26. Defendants failed to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies. 27. Defendants failed to provide promptly a reasonable explanation, in relation to the facts or applicable law, for the denial of this claim in violation of Texas Insurance Code 541.060 (a)(3). 28. Defendants refused to pay a claim without conducting a reasonable investigation with respect to this claim in violation of Texas Insurance Code 541.060 (a)(7). 29. Defendants misrepresented the insurance policy under which it afforded occupational
-7..
10HashempourTetition - Firm Amcnded.wpd
accident insurance coverage to Mr. Hashempour by making an untrue statements of material fact in violation of Texas Insurance Code 541.060 (1). 30. Defendants misrepresented the insurance policy under which it afforded occupational accident insurance coverage by failing to state a material fact that is necessary to make other statements made not misleading in violation of Texas Insurance Code 541.060 (2). 31. Defendants misrepresented the insurance policy under which it afforded occupational accident insurance to Mr. Hashempour by making a statement in such a manner as to mislead a reasonably prudent person to a false conclusion of material fact, and in failing to disclose a mater required by law to be disclosed in violation of Texas Insurance Code 541.060 (1) & (3). 32. Defendants knowingly committed the foregoing acts, with actual knowledge of their falsity, unfairness, or deception in violation of Texas Insurance Code 541.060 (1). 33. Defendants' conduct also constituted unfair claims settlement practices in violation of the Texas Insurance Code 542.003, et seq.
34.
35.
ACE, as Mr. Hashempour's occupational accident insurer, had a duty to deal fairly and in good faith with him in the processing of his occupational accident claim. It had a duty to conduct a fair, reasonable and thorough investigation of Ray Hashempour's claim before terminating benefits. ACE failed to do so. ACE breached this duty by failing and refusing to timely and properly investigate, adjust, and to pay Hashempour's claim. Its denial of his
-8-
KAHuhcmpotir \Petition - First Amcncltd.wpd
claim was made in the absence of a reasonable basis for this denial Defendant knew or should have known that there was no reasonable basis for its delay in payment or denial of this claim. At all material times, the liability of ACE was reasonably clear. As a result, Defendant breached its common law duty of good faith and fair dealing causing injury and damage to Hashempour, for which he further sues. Legal "Malice" & Unconscionability 36. Plainti ff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition. 37. Defendants acted fraudulently and with malice in denying Mr. Hashempour's claim for occupational accident benefits. Defendants' conduct when viewed objectively from its standpoint, at the time of the occurrence complained of in this action, involved an extreme degree ofrisk to Mr. Hashempour, considering the probability and magnitude of the potential harm to Mr. Hashempour. In addition, Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with a conscious indifference to the rights, safety or welfare of Mr. Hashempour. 38. Defendants acted in an unconscionable manner in their wrongful denial and delay in the payment of Mr. Hashempour's claim for occupational accident benefits, all for which Hashempour further sues. Violation of the Texas Deceptive Trade Practices Act 39. Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs of this Petition. 40. The Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) provides
-9-
K:1HashempouAPetition - First Amended.wpd
additional protections to consumers who are victims of deceptive, improper or illegal acts and practices. Defendants' violations ofthe Texas Insurance Code create an additional cause of action under the DTPA. Defendants' conduct as recited in this petition and their violations of the Texas Insurance Code, as recite herein, also constitute violations of the DTPA for which Hashempour further sues for his damages. Damages 41. Plaintiff is entitled to the actual damages resulting from the wrongful and illegal conduct of Defendants. These damages include the consequential damages to his economic welfare from the wrongful denial and delay in payment of occupational accident benefits, mental anguish and physical suffering resulting from this wrongful denial of benefits, and all other actual damages permitted by law. He is also entitled to those damages resulting from the delay in providing medical benefits resulting in permanent injury and damage. For these damages and the conduct recited in this complaint, Defendants are jointly and severally liable. 42. Plaintiff is further entitled to statutory multiple damages and other penalties as permitted by law. Exemplary Damages 43. The actions of the Defendants in handling Plaintiffs claim were done knowingly and intentionally or with a conscious or callous disregard for the rights and welfare of the Plaintiff. As such, their actions reflected gross negligence and were so outrageous as to warrant the imposition of punitive or exemplary damages, for which Plaintiff further sues for recovery. Accordingly, Plaintiff seeks such punitive or exemplary damages as may be
-1 0
KAHashempourkPctition First Amended.wpd
assessed by the jury in its discretion.

Attorneys Fees
44.
This suit was made necessary by the wrongful acts and practices of Defendants. Plaintiff has been forced to retain an attorney to prosecute his claims, for which Plaintiff has agreed to pay a reasonable attorney's fee. In this regard, Plaintiff is entitled to recover his reasonable attorney's fees and expenses incurred and to be incurred for the full prosecution of this claim through trial and appeal, if any, that are reasonable and necessary for Plaintiff to obtain the relief he seeks. Accordingly, Plaintiff further seeks recovery of his reasonable attorney's fees pursuant to 541.152, 542.051 and Chapter 9 of the Insurance Code, Section 17.49, et. le2. of the Business and Commerce Code, or Section 38.001, et. seq. of the Texas Civ. Prac. & Rem. Code, as amended, or either of them.
Disclosures
45.
Hashempour requests that each Defendant disclose, within 50 days of service of this
request, the information and material described in Rule 194.2(a)-(1) of the Texas Rules of Civil Procedure. Copies of documents and other tangible items responsive to this request must be served on Plaintiff with your Response. Tex. R. Civ. P. 194.4
General Claims
46.
All notices required to be given have been given, and all conditions precedent have been satisfied.
47.
Plaintiff requests his court costs, together with prejudgment and post-judgment interest on his damages.
48.
Plaintiff further demands a jury trial.
KAllashempour \Petition First Amendeci.wpiii
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Ray Hashempour, prays that the Defendants be cited to appear and answer this action, and following their appearance, he have full trial on the merits of his claim, that he have and recover his actual, statutory and exemplary damages, together with his reasonable attorney's fees, costs, expenses, and interest to which he may be justly entitled, and for general relief.
By: James C. Plummer, TBA #16075700 Amar Raval, TBA 424046682 PLUMMER & ASSOCIATES 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 (713) 522-2887 (713) 522-3605 (Fax) Jplummer@plummerlawyers.com David Garcia David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, Texas 78040 956-726-9693 956-726-3421 (fax) Davidg22@sbcglobal.net ATTORNEYS FOR PLAINTIFF
KAHashemputir\Pciition - First Ameodetiwpd
-12-
6.
2011CVF001161 D4
CITATION
THE STATE OF TEXAS

COUNTY OF WEBB 0114 NOTICE TO THE DEFENPANT: "YOU HAVE BEEN SUED. YOU MAY 411114t N. ATT ilORNET.;. r HE MARK WHO IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER ISSUED THIS CITATION BY 10:00 A.M. ON THE MONDAY N 91,LOWING , EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THIS CIT lahTforr,A DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOU." na Po TO; ACE AMERICAN INSURANCE COMPANY
?
BY SERVING ITS REGISTERED AGENT CT CORPORATION SYSTEM 350 NORTH PAUL ST DALLAS, TX 75201
DEFENDANT, IN THE HEREINAFTER STYLED AND NUMBERED CAUSE, YOU ARE HEREBY COMMANDED TO APPEAR BEFORE THE 406TH DISTRICT COURT of Webb County, Texas, to be held at the said courthouse of said county in the city of Laredo, Webb County, Texas, by filing a written answer to, the Petition of Plaintiff at or before 10:00 O'CLOCK A.M. of the Monday next after the expiration of 20 days after the date of service thereof, a copy of which accompanies this citation, in the Cause #: 2011CVF001161 D4 , styled:
RAY RASHENPOUR, PLAINTIFF VS. ACE AMERICAN INSURANCE COMPANY, GALAGHER BASSETT SERVICES, INC. DIVERSIMED, INC., DEFENDANTS Said Plaintiff's Petition was filed on 08/03/2011 in said court by: JAMES PLUMMER, ATTORNEY FOR PLAINTIFF 4203 MONTROSE BOULEVARD SUITE 270 HOUSTON, TX 77006
WITNESS ESTHER
AND
DEGOLLADO, DISTRICT CLERK OF WEBB COUNTY, Issued and given under my hand and seal of said court at this 5 day of August, 2011.
.....................
CLERK
OF
COURT
ESTHER WEBB glb P.
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within the COUNTY of
the 044 day of , 2011, by deliverin. to the &dos, ivewithin named ACE AMERICAN INSURANCE COMPANY, eac , in person, a true copy of this citation together with the accompanying copy of the petition, having first attached such copy of such petition to such copy of citation and endorsed on such copy of citation the date of hr da0(6,5 4 4.4 rej 41."." CT C.ereedoilfr. delivery.
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The distance actually traveled by me in serving such process was miles, and my fees are as follows: Total Fee for serving this citation To certify which, witness my hand officially.
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COUNTY, TEXAS
afhi, BY
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THE STATE OF TEXAS } COUNTY OF WEBB
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Before me, the undersigne0 authority, on this day personally appeared Seat 1....). Akt+.0,44t PielkeilAel , who after being duly sworn, upon oath said that a notice, of which the above is a true copy, was by him/her delivered to Ac.c.,/linteetgA 44 11/VAO C.- Ce.40....y, by O4/.1.i(eAs db /14 ce,vz) /Wed on the . 01 +16 day of -2.... i t Se01,4. 4."" , SWORN TO AND SUBSCRIBED BEFORE ME on the Od day of to certify which witness my hand and seal 1' NVINCEN1 M. STEVENS
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7.
2011CVF001161 D4 CITATION
THE STATE OF TEXAS

COUNTY OF WEBB
0.
NOTICE TO THE DEFENDANT: "YOU HAVE BEEN SUED. YOU MAY EMPLOY IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER WITH TH ISSUED THIS CITATION BY 10:00 A.M. ON THE MONDAY NEXT FOLLOWI EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THIS CITATION AND PET A DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOU."
TO: GALLAGHER BASSETT SERVICES, INC. BY SERVING ITS REGISTERED AGENT PRENTICE HALL CORP. SYSTEM 701 BRAZOS STREET SUITE 1010 AUSTIN, TX 78701
fert- ,
DEFENDANT, IN THE HEREINAFTER STYLED AND NUMBERED CAUSE, YOU ARE HEREBY COMMANDED TO APPEAR BEFORE THE 406TH DISTRICT COURT of Webb County, Texas, to be held at the said courthouse of said county in the city of Laredo, Webb County, Texas, by filing a written answer to the Petition of Plaintiff at or before 10:00 O'CLOCK A.M. of the Monday next after the expiration of 20 days after the date of service thereof, a copy of which accompanies this citation, in the Cause #: 2011CVF001161 D4 , styled:
RAY HASHENPOUR, PLAINTIFF VS ACE AMERICAN INSURANCE COMPANY, GALAGHER BASSETT SERVICES, INC. AND DIVERSIMED, INC., DEFENDANTS Said Plaintiff's Petition was filed on 08/03/2011 in said court by: JAMES PLUMMER, ATTORNEY FOR PLAINTIFF 4203 MONTROSE BOULEVARD SUITE 270 HOUSTON, TX 77006 WITNESS ESTHER DEGOLLADO, DISTRICT CLERK OF WEBB COUNTY, TEXAS, Issued and given under my hand and seal of said court at office, this 5 day of August, 2011.
CLERK
OF
COURT
ESTHER WEBB
I.
.. ... ...........
.
TX 42
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o fe th
day
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BY:
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2011 CVF00161-D4
CAUSE NO.
RETURN
Came to my hand: 9/7/2011 , at 08:00 o'clock A.M.
Citation Plaintiff's Original Petition Notice of Calendar Call
Executed by me on:
9 / 7 /2011 , at 1) 2.3 o'clock
Executed at: County of:
211 E. 7TH STREET, SUITE 620, AUSTIN, TX 78701 TRAVIS
By delivering to GALLAGHER BASSETT SERVICES, INC., by delivering to its registered agent, PRENTICE HALL CORPORATION SYSTEM, by delivering to Vv.ty c6w iervey managing agent, in person, a true copy of the above specified civil prbcess having first endorsed on such copy the date of delivery.
,
I am over the age of 18, not a party to nor interested in the outcome of the above numbered suit.
Autho ed Person: 5*CR s. joi sSTATE OF TEXAS VERIFICATION

Before me, a notary public, on this day personally appeared the above named Authorized person, known to me to be the person whose name is subscribed to the foregoing document and, being by
me first duly sworn, declared that the statements and facts therein contain re within his perwal knowlete. t be an correct. Given under my hand and seal ce on this the 2 144 day of , 2011
L IA HAI.
Notary Public, State of Texas My Commission Expires
Public
Alliance Legal Services

Ph: 713 861 1686 Fx: 713 861 1687 Email allianceleoalAvahoo.com
-
3914 Leeland Houston TX 77003
September 13, 2011 Webb County Courthouse District Clerk's Office P.O. Box 667 Laredo, Texas 78042 Re: Hashenpour vs. Ace American Insurance Company, et al District Clerk, Please find enclosed the original and copy of the citations for Ace American Insurance Company and Gallagher Bassett Services, Inc. Please file stamp and return the copy to me in the enclosed envelope at your earliest convenience.
Thank you for your prompt attention to this matter.
Si erely;
hdy Gardner Summons/Citation Manager
8.
CITATION
THE STATE OF TEXAS

COUNTY OF WEBB
NOTICE TO THE DEFENDANT: "YOU HAVE BEEN SUED. YOU MAY EMPLOY AN ATTORNEY. IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER WITH THE CLERK WHO ISSUED THIS CITATION BY 10:00 A.M. ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THIS CITATION AND PETITION, A DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOU."
TO: DIVERSIMED, INC. BY SERVING ITS REGISTERED AGENT LONNIE HARVEY 1011 ORANGEWALE DRIVER BRANDON, FLORIDA 33511
DEFENDANT, IN THE HEREINAFTER STYLED AND NUMBERED CAUSE, YOU ARE HEREBY COMMANDED TO APPEAR BEFORE THE 406TH DISTRICT COURT of Webb County, Texas, to be held at the said courthouse of said county in the city of Laredo, Webb County, Texas, by filing a written answer to the Petition of Plaintiff at or before 10:00 O'CLOCK A.M. of the Monday next after the expiration of 20 days after the date of service thereof, a copy of which accompanies this citation, in the Cause #: 2011CVF001161 D4 , styled: RAY HASHENPOUR, PLAINTIFF VS ACE AMERICAN INSURANCE COMPANY, GALAGHER BASSETT SERVICES, INC. AND DIVERSIMED, INC., DEFENDANTS Said Plaintiff's Petition was filed on 08/03/2011 in said court by: JAMES PLUMMER, ATTORNEY FOR PLAINTIFF 4203 MONTROSE BOULEVARD SUITE 270 HOUSTON, TX 77006
WITNESS ESTHER DEGOLLADO, DISTRICT CLERK OF WEBB COUNTY, TEXAS, Issued and given under my hand and seal of said court at office,
this 5 day of August, 2011.
CLERK
OF
COUR T
Ei
sIEBBc
Po:
DEGO C UNTY DI REDO
Non /
cert
42tik
e i.r.*-; , It' . . . . . . . . . . . . .
jr/
20 day o e r ESTHER DE GOLLADO ns nd the mV
2011CVF001161 D4
OFFICER'S MUM
Came to hand on the
day of
5Qpi-2,vv\ b-e,/-
, 2011 at
,
O'CLOCK
.m. Executed at
IGO oralewaik Pr.

O'CLOCK
within the COUNTY of
1411519oro9 IA
at
i a 4m
On
, 2011, by delivering to the the 66' day of 9F.4.ewlb.e within named DIVERSIMED,vINC., each, in person, a true copy of this citation together with the accompanying copy of the petition, having first attached such copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery. Th,A e istance actually traveled by me in serving such process was miles, and my fees are as follows: IV Total Fee for serving this citation To certify which, witness my hand officially.
-41.951/#11.r. '
rbrifedeZ:
Ad
SHE IFF, CONSTAB (
11:115bUrOl
BY THE STATE OF TEXAS 1 COUNTY OF WEBB
it\
COUNTY, TEXXS
kat/ ellottla"-
DEPUTY
Before me, the u dersi ned authority, on this day personally appeared , who after being duly sworn, au C Lfz4 upo ath said that a notice, of which the above is a true copy, was by i /her delivered to 1-40(laiP I-I-ctrvey on the day of 5-ep i_e b.-,201,t 0+
,
SWORN TO AND SUBSCRIBED BEFORE ME on the ite day of 4 , to certify which witness my hand and seal of office. ...
aott
NICOLE A. WISE Notary Public - Slate of Florida My Comm. Expires Jun 15, 2015 Commission 0 EE 103774 411 111.--
WILL
k
a Louvi
juiK 15121)16-'
NOTARY PUBLIC
AFFIDAVIT OF PROCESS SERVER

District Court
Ray Hashempour Plaintiff
VS.
County of Webb
Attorney:
State of Texas
James Plummer Plummer & Associates 4203 Montrose Boulevard, Suite 270 Houston, TX. 77006
Ace American Insurance Company, Gallagher Bassett Services, Inc., & Diversimed, Defendant Case Number: 20110/n01161 Legal documents received by Alliance Legal Services on September 08th, 2011 at 3:00 PM to be served upon Diversimed, Inc. By Serving Registered Agent Lonnie Harvey at 1011 Orangewalk Drive, Brandon, FL. 33511 I, Beau W. Charlet, swear and affirm that on September 15tb, 2011 at 8:12 AM, I did the following: Served the corporation listed as the intended recipient of the legal documents by delivering a conformed copy of the Citation and Petition to Lonnie Harvey as Registered Agent of the within named corporation. The service date, time, my initials and/or name, and identification number, if mquired by state statute, were listed ou the document served. Description of Person Accepting Service: Sex: Male Age: 50s Height: 6'0 Weight: 240 Skin Color: white Hair Color: gray Glasses: Supplemental Data Appropriate to this Service: -0
C71
.
I declare that I am eighteen years of age or older and have no interest in the above legal matterA attest that certified, appointed by sheriff or motion and order and that I am legally authorized to serve court documents within the above named circuit / my.
Beau 7. Charlet Process Server, # CA-647, CPS 10-808659, APS 58968, PPS 9040 Alliance Legal Services P.O. Box 667160 Houston, TX 77266 (713) 861-1686 Internal Job ID: 2011001271
The foreg ing instrume was acknowled ed before me on this Jj9 day of 2011, by , who is IL I perynally known to me or who has produced ro 3Sir 0 as identification. i21/40
ttok, otary Printed Name
tact
Commission Expiration D
JtOrle, ' 421))5-NICOLE A, WISE Notary Public - Stat. ol Florida My Comm. Expires Jun 15, 2015 Commission I EE 103774
Copyright 0 2005-2007 Process Server Central, LLC. All rights reserved.
Alliance Legal Services

3914 Leeland Houston TX 77003
Ph: 713-861-1686 Fx: 713-1361-1687
Email alliancelegalavahoo.com
September 13, 2011 Webb County Courthouse District Clerk's Office P.O. Box 667 Laredo, Texas 78042 Re: Hashenpour vs. Ace American Insurance Company, et al District Clerk, Please find enclosed the original and copy of the citations for Diversmed, Inc. Please file stamp and return the copy to me in the enclosed envelope at your earliest convenience.
Thank you for your prompt attention to this matter.
cerely;
(-4ndy Gardner Summons/Citation Manager
9.
LIST OF PARTIES, ATTORNEYS AND STATE COURT

The following is a list of all parties in the case, their party type, and current status of the removed case is as follows:
Plaintiff Ray Hashempour

Attorneys: James C. Plummer, Esq. Texas State Bar No. 16075700 Amar Raval, Esq. Texas State Bar No. 24046682 Plummer & Associates 4203 Montrose Blvd, Suite 270 Houston, TX 77006 Telephone: 713-522-2887 Facsimile: 713-522-3605 jplummer@plummerlawyers.com David Garcia, Esq. Texas State Bar No. 07631758 David Garcia Law Office, P.C. 719 Chihuhua Street, Suite 105 Laredo, TX 78040 Telephone: 956-726-9693 Facsimile: 956-726-3421 davidg22@sbcglobal.net Plaintiff has requested a jury trial in state court.
Defendants ACE American Insurance Company

Attorneys: Alicia G. Curran Texas State Bar No. 12587500 Southern District of Texas Admission No.: 19226 Cozen O'Connor 1717 Main Street, Suite 3400 Dallas, TX 75201 Telephone: 214-462-3021 Facsimile: 866-248-5742
acurran@cozen.com
Craig C. Crafton Texas State Bar Number 24036413 Southern District of Texas Admission No.:1141478 Cozen O'Connor, P.C. 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: 214-462-3021 Facsimile: 866-248-5742
ccraftonRcozen.com Gallagher Bassett Services, Inc.

Attorney: Alicia G. Curran Texas State Bar No. 12587500 Southern District of Texas Admission No.:19226 Cozen O'Connor 1717 Main Street, Suite 3400
PAGE 1
Dallas, TX 75201 Telephone: 214-462-3021 Facsimile: 866-248-5742 acurran@cozen.com Craig C. Crafton Texas State Bar Number 24036413 Southern District of Texas Admission No.:1141478 Cozen O'Connor, P.C. 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: 214-462-3021 Facsimile: 866-248-5742
ccrafton@cozen.com Diversimed, Inc.

Attorney: Phil Griffis Texas State Bar No. 08476400 The Law Office of Phil Griffis 2525 Bay Area Blvd., Suite 195 Houston, Texas 77058 Telephone: (832) 284-4013 Facsimile: (713) 493-7253 pgriffis@griffislawfirm.com
State Court
406th Webb County District Court c/o Webb County District Clerk Esther Degollado, District Clerk 1110 Victoria Street, Suite 203 Laredo, Texas 78040 Telephone: 956-523-4268 Facsimile: 956-523-5063
DALLAS\548817 \2 312049.000
PAGE 2
Exhibit B
PLUMMER & KUYKENDALL

ATTORNEYS & COUNSELORS AT LAW
MAIN OFFICE
4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 713-522-2887 713-522-3605 Fax
James C. Plununer
Board Certified Personal Injury Trial Law jplummer@plurnmerlawyers.com
AUSTIN OFFICE
106 East Sixth Street, Suite 900 Austin, Texas 78701 512-322-3992 512-322-5301 Fax
William H. Kuykendall, P.C.

wkuykendall@plummerlawyers.com
Amar Raval
araval@plummerlawyers.com
April 13, 2011 ACE American Insurance Co. Via Certified Mail P 0 Box 1000 436 Walnut Street Philadelphia PA 19105 -1000
/P ii,)4p 4e.
4).1,
Ms. Linda Hutchison Via Certified & E-Mail: linda hutchison@gbtpa.com Claims Adjuster Gallagher Bassett Services, Inc. Kansas City/CMC P 0 Box 4 19797 Kansas City, MO 64141 Re: Insured: Date of Loss: Your Claim #: Policy #: Insurer: Dear Ms. Hutchison: As you know, we represent Ray Hashempour in his claim for long term disability benefits. We have carefully reviewed all of the information Galla,gher Bassett has provided since its September 23, 2010 denial of Mr. Hashempour's claim for benefits. We have also reviewed additional information related to this claim. This specifically includes the Social Security Administration records reflecting an award of disability benefits to Mr. Hashempour. We, of course, have supplied that information to Gallagher Bassett for its review in the handling of this claim on behalf of ACE American Insurance Company. Based upon our review, we have determined that the liability of Gallagher Bassett and ACE American Insurance Company on its policy with Mr. Hashempour is and has been reasonably clear. His benefits should not have been terminated, and his claim should be paid in full without further delay. In its denial letter of September 27, 2010, Gallagher Bassett solel3r relies on an alleged independent medical examination by a Dr. Ruben Pechero. In particular, Gallagher Bassett claims that Mr. Hashempour, based solely upon the opinion of Dr. Pechero, is able to return to work without restrictions. No further disability benefits or medical benefits have been paid since that time. In reaching that decision, Gallagher Bassett has ignored the opinions of Mr. Hashempour's treating physicians. It has also ignored the opinion of the physician who performed the United States Department of Transportation ("DOT") fitness exam to determine whether
IC:/Cases/Ilashempour/Gallagher Bassett Letter 6
Ray Hashempour 2/26/09 002778-000695-NS-01 TOC N01303533 ACE American Insurance Company
AAIC/Hashempour 01275
he could return to work as a truck driver, his occupation as of the time of his disability. That opinion was, of course, that he could not in light of his condition. In addition to the many d.eficiencies in the qualifications of Dr. Pechero, he was not qualified to administer the DOT's Medical Exam for Commercial Driver Fitness Determination, something Gallagher Bassett knew or should have known was a critical determinate in assessing Mr. Hashempour's disability. Of course, Mr. Hashempour has provided medical documentation to explain his medical condition which has gone without comment. The failure of ACE American Insurance Company, acting through Gallagher Bassett and its employees, to timely pay Mr. Hashempour's disability claim is in breach of the insurance coniTact, and a repudiation of its future obligations under that contract. This conduct also constitutes a violation of Texas Insurance Code, including violations of Ch. 541, 542, and 544 of the Code. It is also conduct that is in violation of the Texas Deceptive Trade Practices-Consumer Protection Act. ACE has an affirmative duty under Texas law to act in good faith. This conduct is a violation of that common law duty of good faith and fair olealing. As a result of this conduct, Mr. Hashempour has suffered injuries and damages. Those damages include any unpaid indemnity benefits and unpaid medical expenses of more than $31,000. This does not include the amount of money necessary for future medical expenses which are unknown at present. Gallagher Bassett's conduct has also caused Mr. Hashempour to suffer considerable mental and emotional trauma and anguish. The amount of these damages are not easily determined at this time and are best d.etermined by a reasonable Harris County jury. However, we believe those damages are in excess of $50,000. Mr. Hashempour has also found it necessary to retain our services to obtain payment on this claim. The attorneys fees incurred to date are in the approximate amount of $5,000. This constitutes another part of the damages suffered by Mr. Hashempour. Mr. Hashempour demands prompt payment of his claim, both past due indemnity benefits and medical reimbursement, together with accrued interest, and the damages he has suffered as a result of the denial of his disability benefits by ACE American Insurance Company and Gallagher Bassett. This letter is provided in order to comply with any requisite statutory notice requirements, and in an effort to resolve this matter. It is also provided in order to avoid the additional time and expense of litigation. Please give this letter your careful consideration, and contact the undersigned if either of you is interested in resolving this matter at this time. Very truly yours,
PLUMMER & KUYKENDALL James C. PlUrnmeli
r:Zes etiarmuft=
2011.19 0.1992 -WOO'
By:
James C. Plummer
JCP:gt -2KICases/Hashempour/Gallagher Bassett Letter 6
AAIC/Hashempour 01276
%,...1S 44 (Rev. 12/07)
Case 5:11-cv-00129 Document 1-3 Filed in TXSD on 10/06/11 Page 1 of 1 CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS
Ray Hashempour
DEFENDANTS ACE American Insurance Company, Gallagher Bassett Services, Inc., & Diversimed, Inc.,
Mexico
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. (EXCEPT IN U.S. PLAINTIFF CASES)
(b)
County of Residence of First Listed Plaintiff
(C) Attorney's (Finn Name, Address, and Telephone Number)
Attorneys (If Known)
James C. Plummer, Plummer & Associates, 4203 Montrose Blvd., Suite 270, Houston, Texas 77006, 713-522-2887
Alicia G. Curran, Cozen O'Connor, 1717 Main Street, Suite 3400, Dallas, Texas 75201, 214-462-3021
DEF 0 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place 0 4 0 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation 0 5 CAI 5
II. BASIS OF JURISDICTION

01 U.S. Government Plaintiff
(Place an "X" in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only) PTF 0 1 Citizen of This State
0 3 Federal Question (U.S. Government Not a Party)
0 2
U.S. Government Defendant
NI 4 Diversity
(Indicate Citizenship of Parties in Item III)
Citizen of Another State
0 2
Citizen or Subject of a Foreign Country
IR 3
0 6
0 6
IV. NATURE OF SUIT

I CONTRACT 110 Insurance 0 120 Marine 0 130 Miller Act 0 140 Negotiable Instrument 0 150 Recovery of Overpayment & Enforcement ofJudgrnent 0 151 Medicare Act 0 152 Recovery of Defaulted Student Loans (Excl. Veterans) 0 153 Recovery of Overpayment of Veteran's Benefits 0 160 Stockholders' Suits 0 190 Other Contract 0 195 Contract Product Liability 0 196 Franchise REAL PROPERTY I 0 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property
Place an "X" in One Box Onl TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 0 362 Personal Injury Med. Malpractice 0 365 Personal Injury Product Liability 0 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal Property Damage 0 385 Property Damage Product Liability PRISONER PETITIONS 0 510 Motions to Vacate Sentence Habeas Corpus: 0 530 General 0 535 Death Penalty 0 540 Mandamus & Other 0 550 Civil Rights 0 555 Prison Condition
FORFEITURE/PENALTY 0 610 Agriculture 0 620 Other Food & Drug 0 625 Drug Related Seizure of Property 21 USC 881 0 630 Liquor Laws 0 640 R.R. & Truck 0 650 Airline Regs. 0 660 Occupational Safety/Health 0 690 Other LABOR 0 710 Fair Labor Standards Act 0 720 Labor/Mgmt. Relations 0 730 Labor/Mgmt.Reporting & Disclosure Act 0 740 Railway Labor Act 0 790 Other Labor Litigation 0 791 Empl. Rel. Inc. Security Act IMMIGRATION 0 462 Naturalization Application 0 463 Habeas Corpus Alien Detainee 0 465 Other Immigration Actions
BANKRUPTCY 0 422 Appeal 28 USC 158 0 423 Withdrawal 28 USC 157 I PROPERTY RIGHTS 0 820 Copyrights 0 830 Patent 0 840 Trademark 0 0 0 0 0 0 0 0 0 0 0
OTHER STATUTES 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes
ria
0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 0 870 Taxes (U.S. Plaintiff or Defendant) 0 871 IRSThird Party 26 USC 7609 0 0 0 0 0
0
0 0 0 0 0 0
V. ORIGIN o 1 Original
(Place n "X" in One Box Only)
Proceeding
gl 2 Removed from State Court
CI 3 Remanded from Appellate Court
C3 4 Reinstated or Reopened
5 Transferred from another district

(specify)
171 6 Multidistrict Litigation
om CI 7 Judgefr Magistrate Judgment
Appeal to District
VI. CAUSE OF ACTION
Gite.thell) $. Cjvil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): ZOO uSG 36 2 Brief description of cause: DEMAND $ CHECK YES only if demanded in complaint: a Yes 0 No JURY DEMAND: DOCKET NUMBER
0 CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE
SIGNATURE OF ATTORNEY OF RECORD
10/06/2011
FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP
./.4
JUDGE MAG. JUDGE

HASHEMPOUR v. ACE AMERICAN INSURANCE COMPANY Et Al Complaint

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Case 5:11-cv-00129 Document 1

Filed in TXSD on 10/06/11 Page 1 of 5

Case 5:11-cv-00129 Document 1

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Therefore, the amount in controversy,

Case 5:11-cv-00129 Document 1

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Diversimed is a Florida corporation with its principal place of business in Florida.

Case 5:11-cv-00129 Document 1

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Respectfully submitted: Attorney In Charge

Case 5:11-cv-00129 Document 1

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Case 5:11-cv-00129 Document 1-1

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Case 5:11-cv-00129 Document 1-1

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INDEX to EXHIBIT A State Court Pleadings

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Case 5:11-cv-00129 Document 1-1

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JUDICIAL COUNTY CIVIL CASE DOCKETS

PAGE MV0260 DCMRG

CASE NUMBER PLAINTIFF S S # ADDRESS DRIVER LICENSE # .

CASE TYPE : 2011CVF001161 D4 HASHENPOUR,RAY D 0.B 000-00-0000

: DIVERSIMED INC, 000-00-0000 D 0.13 1011 ORANGEWALK DRIVER BRANDON Active

STATUS DATE . . . DISPOSITION DATE :

8/03/2011 0.J.Hale IND. TERM. CODE

ACTIVITY DATE ACTIVITY DESCRIPTION

cert y of the 20 day of ESTHER DEGO LADO e Clerk of the *lav 0.

Case 5:11-cv-00129 Document 1-1

Filed in TXSD on 10/06/11 Page 5 of 74

JUDICIAL COUNTY CIVIL CASE DOCKETS

CASE TYPE : F01 CONSUMER/DTPA

Original Petition *IMG* PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION. JB

Case 5:11-cv-00129 Document 1-1

Filed in TXSD on 10/06/11 Page 6 of 74

Cotnev (Fon cum( WE Ososr)i

iiimixiklopit C. Plikynanet a.flaymnfti)k

State Bar No:

riPm ' ri 0114 SThill WNW'

OReciprocals (MESA) 13Support Order

Other Pamity Law

Discriminadon DRet*Iistion DTermination 0Workers' Componserion 00ther Employment:

Administra live Appal

AntitrustfUnfeir CompctItion i"Woric Viola/10M 0120/C411 Judgment Ohnellecmal Property

Tax OTax Appraisal DTA Delinquency DOther Tax

Probate A Mental Health

GuardianshipMinor DMental Health ElOthor: UPreiudgment Remedy Protective Order

3, Indkate procedure or remedy, trapplicobk (may Meet awe Moo I)s

['Arbitration-rotated ElAttachruent 08111 of Review DCenlmari Class Action

cloratorY Anitincnt s"

day of ESTHER DEGOLLADO Courts an " Clerk Of th Dis ...:7 0)4

Case 5:11-cv-00129 Document 1-1

Filed in TXSD on 10/06/11 Page 8 of 74

CAUSE NO. RAY HASHEMPOUR

' r WEBB COUNTY , TEXAS

4/Pb 'JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION

Case 5:11-cv-00129 Document 1-1

Filed in TXSD on 10/06/11 Page 9 of 74

Original Petition IMG PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION. JB