hashempour v. ace american insurance company et al complaint

8/3/2019 HASHEMPOUR v. ACE AMERICAN INSURANCE COMPANY et al Complaint

1/83

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASLAREDO DIVISIONRAY HASHEMPOUR,Plaintiff,V . CASE NO.ACE AMERICAN INSURANCECOMPANY, GALLAGHER BASSETTSERVICES, INC., & DIVERSIMED,INC., Defendants.

JURY DEMAN DED

NOTICE OF REMOVALDefendants ACE American Insurance Company ("ACE") and Gallagher Bassett Services,

Inc. ("Gallagher") hereby remove this civil action from the Webb County District Court, Texasto the United States District Court for the Southern District of Texas, Laredo Division, pursuantto 28 U.S.C. 1332, 1441 and 1446.

1 .n August 3, 2011, Plaintiff Ray Hashempour ("Plaintiff") filed Plaintiff'sOriginal Petition in the 406 th Judicial District of Webb County, Texas, in Cause No. 2011-CVF001161D4 (the "State Court Action") against ACE, Gallagher and Diversimed, Inc.' In hisPetition, Plaintiff alleges that he suffered an on-the-job-injury and was the beneficiary under anOccupational Accident Injury insurance policy ("Policy") issued by ACE, and for whichGallagher acted as independent third-party adjuster. Plaintiff alleges that Defendants ACE andGallagher 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 AC E has subsequently learned that Plaintiff has filed a F irst Amended O riginal Petition inW ebb C ounty, however, neither ACE nor Gallagher have been served with Plaintiff's First Am endedOriginal Petition. In Plaintiff's First Amended Original Petition, Defendants A CE and Gallagher learnedthat Dr. Ruben Pechero has been nam ed as a defendant. However, the docket sheet from the W ebbCounty D istrict Clerk does not indicate that service of process on Dr. Pechero has been effectuated.NOTICE OF REMOVALAGE 1

Case 5:11-cv-00129 Document 1 Filed in TXSD on 10/06/11 Page 1 of 5


2/83

for breach of contract, violation of Texas Insurance Code Sections 541.060 and 542.003, breachof the duty of good faith and fair dealing, "legal 'malice' and unconscionability, violation of theTexas Deceptive Trade Practices Act.

2. On or about September 7, 2011, ACE was served with a copy of a Citation andPlaintiff s Original Petition via its registered agent in Dallas, Texas. See Exhibit A. On or aboutSeptember 7, 2011, Gallagher was served with a copy of a Citation and Plaintiff's OriginalPetition via its registered agent in A ustin, Texas.

3. This Notice of Removal is filed within thirty days from the earliest possiblereceipt of Plaintiff's Original Petition from the date ACE was served and is filed within one yearfrom the commencement of the action. 28 U.S.C. 1446(b).

4. Plaintiff has not alleged the amount in controversy, exclusive of interest and costsin its petition. However, Plaintiff has served a pre-suit statutory demand letter asserting damagesof unpaid indemnity benefits and unpaid medical expenses of more than $31,000. In addition, inhis pre-suit statutory demand letter, Plaintiff asserts damages of mental and emotional traumaand anguish in excess of $50,000. See Exhibit B. Therefore, the amount in controversy,exclusive of interest and costs, exceeds $75 ,000.00.

5. The injury allegedly giving rise to the claim occurred in Edison, N ew Jersey.6. 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 statesof Delaware and P ennsylvania; it is not a citizen of Texas.

7. Gallagher is incorporated in Delaware with its principal place of business inIllinois. For purposes of diversity jurisdiction, Gallagher is a citizen of the states of Delawareand Illinois; it is not a citizen of Texas.

NOTICE OF REMOVALAGE 2Case 5:11-cv-00129 Document 1 Filed in TXSD on 10/06/11 Page 2 of 5


3/83

8. Diversimed is a F lorida corporation w ith its principal place of business in F lorida.For purposes of diversity jurisdiction, Diversimed is a citizen of the state Florida; it is not acitizen of Texas.

9. Plaintiff is a resident of Mexico. Plaintiff previously maintained a residence inTennessee. Plaintiff is not a resident of the Texas, Delaware, Pennsylvania, Illinois or Florida.For purposes of diversity jurisdiction, Plaintiff is a citizen o f 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 matterjurisdiction based on diversity of citizenship. 28 U.S.C. 1132.

9.CE and Gallagher, pursuant to 28 U.S.C. 1446(a), 1447 (b), and 1449 herebyattach all state court pleadings to its Notice of R emoval. See Exhibit A.WHEREFORE, ACE and Gallagher respectfully prays this suit be moved from theWebb County District Court of Webb County, Texas to the United States District Court for theSouthern District of Texas, Laredo Division, pursuant to 28 U.S.C. 1332, 1441 and 1446.NOTICE OF REMOVALAGE 3

Case 5:11-cv-00129 Document 1 Filed in TXSD on 10/06/11 Page 3 of 5


4/83

Respectfully submitted:Attorney In Charge

cL ( - ) 1 AAlicia G. Cu anTexas State Bar Number: 12587500Southern District of Texas Admission No. 19 226COZEN O'CONNOR, P.C.1717 M ain Street, Suite 3400Dallas, Texas 75201Telephone: (214) 462-3021Facsimile: (866) 248-5742Of Counsel:Craig C. CraftonTexas State Bar N umber 24036413Southern District of Texas Adm ission No.:1141478COZEN O'CONNOR, P.C.1717 M ain Street, Suite 3400Dallas, Texas 75201Telephone: (214) 462-3021Facsimile: (866) 248-5742ATTORNEYS FOR ACE AMERICANINSURANCE COMPANY and GALLAGHERBASSETT SERVICES, INC.



5/83

CERTIFICATE OF SERVICEI hereby certify that on this 6 t h day of October, 2011, a true and correct copy of the aboveand foregoing was sent to Plaintiff s counsel, via certified mail, return receipt requested.

James C. Plummer, Esq.Amar Raval, Esq.Plummer & Associates4203 Montrose Blvd, Suite 270Houston, TX 77006David Garcia, Esq.David Garcia Law Office, P.C.719 Chihuhua Street, Suite 105Laredo, TX 78040

Alicia G. Curran

CERTIFICATE OF CONFERENCECounsel for AC E A merican Insurance Company and Gallagher Bassett Services, Inc.,Alicia Curran, has conducted a conference with attorney Phil Griffis, expected counsel of recordfor 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, dueto scheduling, attorney Plummer and I have not been ab le to engage in substantive dialogue.

d tA AAlicia G. CurranDALLAS\5488194 312049.000



6/83

Exhibit AState Court Pleadings

NOTICE OF REMOVALAGE 6Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 1 of 74


7/83

INDEX to EXHIBIT AState Court Pleadings

1. Webb County Judicial System Civil Case Docket for cause number2011CVF001161 D4;2. Civil Case Information Sheet in cause number 2011CVF001161 D4, WebbCounty, 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 OriginalAnswer to Plaintiff's Original Petition, as filed in cause number 2011CVF001161 D4, WebbCounty, Texas;

5. Plaintiff's First Amended Original Petition in cause number 2011CVF001161 D4,Webb C ounty, Texas;6. Citation and Officer's Return for Ace American Insurance Company in causenumber 2011CVF001161 D4, W ebb County, Texas;7. Citation and Officer's Return for Gallagher Bassett Services, Inc. in cause number2011CVF001161 D4, W ebb County, Texas;8. Citation and Officer's Return for Diversimed, Inc. in cause number2011CVF001161 D4, Webb County, Texas; and9. List of Parties, Attorneys and State Cou rt.

NOTICE OF REMOVALAGE 7Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 2 of 74


8/83

1 .

Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 3 of 74


9/83

COUNTER CLAIM CASE:TRUSTEESHIP CASEGARNISHMENT CASE

. YtR4W91?R ui?c5i

y of theday ofESTHER DEGOClerk of the * lave 0.

LADO

ACTIVI Y Tcert20

WEBBWebb County CourtsDATE/28/11TIME1:15:17 COUNTYUDICIALYSTEMCIVIL CASE DOCKETS I C I C r\lbPAGEMV0260DCMRGCASE NUMBER2011CVF001161 D4PLAINTIFFHASHENPOUR,RAYS S #000-00-00000.BADDRESSCASE TYPE : F01 CONSUMER/DTPADRIVER LICENSE # .PLAINTIFFS ATTORNEY : PLUMMER,JAMESHONE NUMBER: 000-000-0000ADDRESS4203 MONTROSE BOULEVARD SUITE 270HOUSTONX 77006V S.DEFENDANT NAMES .S.#ADDRESS: ACE AMERICAN INSURANCE COMPANY,000-00-0000.0 B.350 NORTH PAUL ST

DALLASX 75201DRIVERS LICENSE #CASE STATUSActiveTATUS DATE ./03/2011CASE DISPOSITIONISPOSITION DATEDEFENDANT NAMEGALLAGHER BASSETT SERVICES INC,S .S #000-00-0000.0 B.ADDRESS701 BRAZOS ST STE 1050AUSTINX 78701DRIVERS LICENSE # .CASE STATUSActiveTATUS DATE . . ./ 0 3 / 2 0 1 1CASE DISPOSITIONISPOSITION DATEDEFENDANT NAMES .S.#ADDRESS: DIVERSIMED INC,000-00-00000.131011 ORANGEWALK DRIVER

BRANDON FL 33511DRIVERS LICENSE #CASE STATUSActiveCASE DISPOSITION STATUS DATE . . ./03/2011DISPOSITION DATE :IND. TERM. CODEENTRY/FILING DATE . :/03/2011JUDGE0.J.HaleHEARING TYPE. . ADMIN. TERM. CODE'COMPLAINTCOMPLAINT DATEINTEREST DATE . .REIMBURSE COSTS .COUNTER CLAIM ORI#TRUSTEESHIP ORI# .GARNISHMENT ORI# .

*IMG* CONTRACT8/03/2011OMPLAINT AMOUNT :

INTEREST RATE .: NO

ACTIVITY DATE ACTIVITY DESCRIPTION



10/83

WEBBOUNTYUDICIALYSTEMCIVIL CASE DOCKETSWebb County CourtsAGEDATE/28/11V0260TIME 11:15:17CMRGCASE NUMBER2011CVF001161 D4ASE TYPE : F01 CONSUMER/DTPA8/03/2011ase StatusCase Status entered as ACTV.

Case Status ACTV: ActiveFor ACE AMERICAN INSURANCE COMPANY

Complaint*IMG* CONTRACT

CaseStatus

Complaint

8/05/2011otesotesFAXED CALENDAR CALL TO ATTORNEY, JAMES C. PLUMMER (RH)Citationitation6 CITATIONS ISSUED TO ACE AMERICAN INSURANCE COMPANY, GALLAGHERBASSETT SERVICES, INC. AND DIVERSIMED, INC. AND PLACED ON PRIVATESERVER BOX (RH)

Court Case Assignmentase AssgnCourt date/time: 11/01/2011 14:00earing Type:7 Clndr CallAssignment of court date/time.Status entered as Open

Jury Feeury FeeJURY DEMAND PAID (RH)8/30/2011otesotesMAILED CITATIONS BACK TO ATTORNEY (RH)9/12/2011riginal Petitionrig Petit*IMG* PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION. JB9/15/2011itationitation

2 CITATIONS ISSUED AS TO RUBEN D. PECHERO, MAILED BACK TO ATTY. JB9/16/2011eturnseturns*IMG* RETURN OF CITATION SHOWING SERVICE AS TO ACE AMERICAN INSURANCECOMPANY (D.O.S. 9/7/11). JBReturnseturns*IMG* RETURN OF CITATION SHOWING SERVICE AS TO GALLAHER BASSETTSERVICES, INC. (D.O.S. 9/7/11). JB9/26/2011eturnseturns*IMG* RETURN OF CITATION SHOWING SERVICE AS TO DIVERSIMED, INC. BYSERVING ITS REGISTERED AGENT LONNIE HARVEY (DOS 9/15/11). MGCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 5 of 74


11/83

2.



12/83

CostractD e b t / C o n A v e l

-" E l t ' o n r u m e r / D T P ADDebt/ControctElltouellMisropreocntationDO ther Debt/Connact:t os ec l os u r eBiome EquiyExpodited1 : j O t h r s e F o r e c l o s u r eOFranchiseI:insuranceOLandiord/Tenent1:Non-Competition

B PenatethipO t h e r C o n t r a c t :

Deleadont(s)//terspondent()):

(fie bisteeloir5/./10,26i.

Imad, vidikea p41.0 haughtyui44 Poo* or cadet m apkting Amu b:ey for k tuntiff/Petitionern o Se P l a i r a i f f i I c h r i o r t e rofTitleblet0riP m -ri 0114SThill WN W 'o r t C a m :Btmltuneac l o r a t o r Y A n i t i n c n t Y V T R , 8 '['License"O m a nOPost-ido:fr.q . s

. . . : 7ko:Z

")4 . ou

UPreiudgment RemedyProtective O rderDR tegt erS don

IT.T4A; 1:1 I T A h ';heng Winnd a y o fESTHER DEGOLLADO

Clerk Of th Disou r ts anO F " 004 -

Aug. 3. 2011: 4 7 P Mlu mj K u y k e n d a l 1o . 2 0 6 9. 11 1 0CIVIL CASE INFORMATION SHEETF - 0 0 1 6 0 4 Cotnev ( F o n c u m ( W E O s o s r )iCAUst Nue001 ( ,0 , C U M ( U M O N LY )snup R a y 1 4 - 6 0 k Q m p p u e . v . A c e , A - i l t - fa i m o Tosueaexe C o( c .c . /eke Sm ith v. Amakao It inuncy c o ; I n r e1 0 4 4 ; ih s dic 1 .64,41 a0* IWO , 440404 "4 )4A . civil case information rimer mu* bc completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, ot motelhealth cue or token a posr-judpnot petitlen for modification or motion for enforcement is filed in a family law cue. The information should bo Ilve best evallable atthc rime Offline. This they, opproved by the Texas )udicial Council, is intendod to collott information thet will be used for stetisticel purposes only. It neither replacanot APPlernents the ((fins or service of p leading or other documents as required by law or rule. T he sheet does not constitute * discovery request, rasponse. oreupp kmentotion, and It is not *dmissible at t r i A

. Coalatt Informatioa for porstro consoled*/ cam tosormaiion rheasNam: Email: Paintif8retiumcr(o:ClarsleC C. Plikynanet a.flaymnfti)kiimixiklopitr s A e p r e v e

A d d r e s s :elophonc:k3 I W O F - 4 4 1 4 ( Oa PA)C i t y / S t a r e / Z i p :a x :1-41.13+00 tV

a tuKi1 ' o fi

o r,to cue type, or M onty the most far dam imna b4 lb* tasefitkd 046' 1) :C h i l Reid PmM ont Domain/CondemnitionPerrinoQ uiet TineTrespass to Try TideO t h e r P r o p e r t y :Other Pamity LawEnforce PonsignJudgmentHoboes Corpus

Nem o ChengcO Protective Order0 Removal of Disabilitiesof Koons) ,['Other00ms Civil

4 0 , y 4 - P - 1

2.

DiscriminadonDRet*IistionDTermination0Workers' Comp onserion00ther Employment:

EMPIOTIKINI4

State Bar No:k7576or DaAssaultfeattery0Conemetion13DefernationM a l p r o o t k eal Acc ountingLe galDM edicalDOther ProfessionalL i a b i l i t y :

DM otor Vehicle AccidentOPreinisesProduciD Asbostos/S diceDOther Product LiebilityL i s t P r o d u c t :00ther Injury or Damage:

DEnpunctionJudgment NisiONon-DisclosureSeizure/Forfeit=D Writ of Habeas Corpus-Pre-iodichnem[10ther:Itchotied I. CriminalM atter*Nome of parties to casc NOMA Rale nAln u l t r i e n t0Declare M arriage V oidDivorce['With ChildrenONo Children Fomily TItle IV -DOfinfOrcememtmodificatiorsDestemityO R e c i p r o c a l s (M ESA)13Support OrderPossjudgment Actionsnon-TideE n f o r c e m e n tDM odification--C1IstodyDM odificationO rherPartor-ChIld RelationshipfiAdoption/Adoption withTaminadonChild Protection['Child SupportOCu stody or VishationClOat,tionsi relentingDO randpirent AccoitParentogefflaternilyTermination Of ementalRights!YAW Parent-Child:1 1CR Administra live Appa lA n t i t r u s t f U n f e i rC o m p c t I t i o ni " W o r i c Viola/10M

010/C411 JudgmentO hnellecmal Property

[ 'Lawyer DisciplineOPerpetuem TestimonyOSecuriiita/SiockD ronious Interference['Other:T axOT ax AppraisalDT A Delinquency

DO ther TaxProbau/Willearmatare etiminffirelionD ependent Adm inistration

O bidcp endot AdminittrallortOther Estate Proceedings

Probate A M ental HealthEIuardimshIpAduhGuardianshipM inorDM ental HealthElOthor:3, Indkate procedure or remedy, trapplicobkDAppal tan M unicipal or balm Court['Arbitration-rotatedElAttachruent08111 of ReviewDCenlmariClass Action (may Meet awe M oo I )s



13/83

F N e d11 Aug ust 3 P12:Esther Dow nedDistrict ClerkW ebb District11CVF0.11181. - - -0 4 1 1 0 . * * .

IN THE DISTRICT CrCAUSE NO. 620 1 f r tyR:o 1/6.l9RAY HASHEMPOURV S .EBB COUN TY , TEXASACE AMERICAN INSURANCECOMPANY , GALLAGHER BASSETTSERVICES, INC., & DIVERSIMED, INC. 4/Pb 'JUDICIAL DISTRICT

P L A IN T I F F ' S O R I G I N A L PE T I T I O N

TO THE HONO RABLE JUDGE OF THE COUR T:This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACE

American Insurance Company, G allagher B assett Services, Inc., and Diversimed, Inc.I.iscovery in this case is intended to be conducted under Level 2, pursuant to Texas Rule ofCivil Procedure 190.3. Parties2. Plaintiff, Ray H ashemp our ("Hash empour"), is a resident citizen of the State of Texas.

3 . Defendant, ACE American Insurance Company ("ACE"), is a domestic or foreign insurancecomp any licensed to do business and doing business in the State of Texas. This Defendantmay be served with service of process by serving its registered agent, CT CorporationSystem, 350 N orth Paul St., Dallas, TX, 7 5201, or wh erever it may be found.

4. Defendant, Gallagher B assett Services, Inc. ("G allagher B assett") is a domestic or foreigncorporation doing business in the State of Texas. This Defendant may be served w ithservice of process by serving its registered agent, Prentice H all Corp. System, 701 B razosStreet, Suite 1050, Austin, TX 7 8701, or wh erever it may be found.



14/83

5 . Defendant, Diversimed, Inc. ("Diversimed"), is a domestic or foreign corporation doingbusiness in the State of Texas, and may be served by serving its registered agent, LonnieHarvey, at 1011 Orangewalk Driver, Brandon, Florida 33511, or wherever it may be found.

Venue6. Venue is proper in Webb County, Texas under Tex. Civ, Prac. & R em. Code 15 .002(a)(1)

& (4) in that all or a substantial part of the events or omissions giving rise to this claimoccurred 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 WebbCounty.he investigation and adjustment of Hashempour's claim, includingcommunications to and from D efendants occurred in Webb County, Texas. Venue is alsoproper pursuant to Tex. Civ. Prac. & R em. Code 15.032 since AC E is an "accidentinsurance comp any" as that tetrn is defined by law, and R ay H ashempour at relevant timeswas a resident of Webb County Texas.

Fac ts & F actual Bac kground7. 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 w as injured whileengaged in this occupation. As a result of that occupational injury, he was unable to returnto his occup ation as an over-the-road truck driver.

8. An initial diagnosis of Hashemp our was lumbar spondylosis and lumbar disc h erniation, acondition caused by that injury , His symptoms included severe right leg pain, andnumbness and weak ness in his lower extremities.

-2-AHashempour\Pctition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 9 of 74


15/83

9 . In O ctober of 2009, Ray H ashempour underwent a lumbar fusion. Although the initial

prognosis for the surgical outcome was p ositive, in medical follow ups following thatsurgery, Hashempour reported the pain getting progressively worse. H e also reported, alongwith 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 H ashempour's treating doctors was lumbarpost-laminectomy and fusion, and chronic pain syndrome. His treating p hysicians opinedhe w as totally incapacitated and unable to return to work.

11 . Before his February, 2009 injury, Hashempour purchased an occupational accident insurancepolicy from ACE American Insurance Company ("ACE" ). That policy was Policy No. TO CNO 1303533 (the "Policy"). The Policy provided for the payment wage replacement andmedical benefits in accordance with its terms in the event the insured suffered anoccupational injury resulting in his disability. Temporary Total Disability benefits werepayable for a m aximum p eriod of 104 week s. Permanent Total Disability benefits werepayable to the date the insured's Social Security Disability Aw ard stopped.

12 . H ashempour timely g ave notice to A CE or its claims administrator, Broadspire, of hisoccupational injury. With the documented medical supplied, Broadspire determined thatH ashempour met the P olicy requirements for Temporary Total Disability and proceed to payboth indemnity and medical benefits.

13 . O n M arch 1, 2010, management for Hashemp our's claim was transferred from Broadspireto Gallagh er Bassett Services ("Gallagher Bassett"). Hashemp our or his treating ph ysicianscontinued to supply Gallagh er Bassett with reports of his medical condition opining in

-3 -: VinshempourTethion.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 10 of 74


16/83

significant part that Ray H ashempour remained "unable to return to work " and that heremained "totally incapacitated" from his occupation.

1 4 .allagher B assett then engaged D iversimed, Inc. ("Diversimed") to arrange for an alleged"independent" medical examination of H ashempour. Diversimed then engaged a Dr. R ubenPechero to perform that medical examination. Diversimed or G allagher B assett or bothfailed to determine Pech ero's qualifications to provide an objective medical assessment ofHash empour's condition and ability to return to work , and cherry-pick ed the informationsupplied Pech ero. Alternatively, Gallagh er Bassett and Diversimed failed to investigate anddetermine the q ualifications of its designated "independent" m edical examiner.

IS. Although questioning the qualifications of Dr. Pechero to perform a medical exam ination,H ashempour p roceeded with that examination. Dr. Pechero then reported to Diversimed andGallagher B assett that R ay H ashempour could return to work on an unrestricted basis. Thisopinion was erroneous, made without a com plete record of M r. Hashemp our's medicalhistory, and without kn owledge of the nature of Hashemp our's occup ation. As important,it was the result of an outcom e oriented examination designed to prov ide a basis fortermination of benefits to Hashempour.

16.n September 23, 2010, Gallagher Bassett, without a reasonable basis, terminatedH ashempour's claim, and ceased p aying indemnity and medical benefits due under thePolicy. This termination occurred despite repeated request from H ashempour for medicalattention and repeated rep orts of his treating p hysicians of the need for continued medicalattention.

-4-AHashempourTetition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 11 of 74


17/83

17. Gallagh er Bassett acting as the ag ent for ACE w rongfully terminated benefits under thePolicy. Th ey were mo tivated, on information and belief, by a desire to avoid the continuedfinancial obligation undertaken in the Policy at the expense of R ay H ashempour.

18. R ay Hash empour has suffered from the absence of the income benefits promised when h epurchased and paid for the Policy. He has been limited and prevented from obtainingnecessary medic al attention and medication causing a deterioration in his health con dition.He has been subjected to the severe economic imp act of this denial, suffering w orry, distressand severe damage health and economic future.

19. At all material times, Gallagh er Bassett was as an agent of ACE, acting within the scop e ofits authority. ACE as w as its pattern and practice ratified the conduc t of Gallagh er Bassett.Diversimed was at all m aterial times doing the bidding of Gallag her B assett and its principalin purporting to provide Gallagh er Bassett and ACE with "savings" by k nowingly usingincompetent or unqualified medical consultants for medical exams, as undertaken with R ayHashemp our, to his injury and damage.

Causes of Ac tionBreach of Contract

20. ACE promised to pay m edical and income benefits in accordance w ith the terms of its Policyin the event R ay H ashempour became disabled because of an occupational accident. R ayH ashemp our suffered an oc cupational injury resulting in h is disability as defined in thePolicy and fully cooperated with A CE or its agents in their adjustment of his claim R ayHash empour w as and remains disabled as defined in the Policy.

-5 -AHashempourTerition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 12 of 74


18/83

21 . ACE's termination of Ray Hashempour's disability benefits constitutes a breach of the

insurance policy, for which he now sues.V iolations of the Texas Insurance Code

22 . Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphsof this Petition.

23 . Defendants failed to attempt to effectuate a prompt, fair, and eq uitable settlement of thisclaim with respect to which its liability had bec ome reasonably clear in violation of TexasInsurance Code 541.060 (a)(2)(A).

24 . Defendants failed to adopt and impl ement reasonable standards for the prompt investigationof claims arising under its policies.

25 . Defendants failed to p rovide promp tly a reasonable explanation, in relation to the facts orapplicable 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 withrespect to this claim in violation of Texas Insurance Code 5 41.060 (a)(7).

27 . Defendants misrepresented the insurance policy under w hich it afforded occup ationalaccident insurance coverage to Mr. Hashempour by making an untrue statements of materialfact in violation of Texas Insurance Code 541.060 (1 ) .

28 . Defendants misrepresented the insurance policy under w hich it afforded occup ationalaccident insurance cov erage by failing to state a material fact that is necessary to make oth erstatements made not misleading in v iolation of Texas I nsurance Code 541.060 (2).

-6-AHashempourTetition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 13 of 74


19/83

29 . Defendants misrepresented the insurance policy under which it afforded occupational

accident insurance to M r. Hashemp our by making a statement in such a manner as to misleada reasonably prudent person to a false conclusion of material fact, and in failing to disclosea mater required by law to be disclosed in violation of Texas Insurance Code 5 41.060 (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 c onstituted unfair claims settlement practices in v iolation of th eTexas Insurance Code 542,003, et seq.

Breach of the Duty of G ood Faith & F air D ealing32. Plaintiffre-alleges and incorporates each allegation contained in the proceeding paragraphs

of this Petition.33 ,CE, as M r. Hashem pour's occup ational accident insurer, had a duty to deal fairly and ingood faith with him in the processing of his occup ational accident claim. Defendant

breached this duty by failing and refusing to timely and p roperly investigate, adjust, pay, andin its denial of his claim in the absence of a reasonable basis for this denial. Defendant knewor should have known that there was no reasonable basis for its delay in payment or denialof this claim, At all material times, the liability of ACE w as reasonably clear. As a result,Defendant breached its common law duty of good faith and fair dealing causing injury anddamage to H ashemp our, for which h e further sues.

L egal "M alice" & U nconscionability

-7-AHasliempourTerition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 14 of 74


20/83

34. Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs

of this P etition.35 . Defendants acted fraudulently and w ith malice in denying M r. Hashemp our's claim for

occupational accident benefits. Defendants' conduct when viewed objectively from itsstandpoint, at the time of the occurrence complained of in this action, involved an extremedegree of risk to M r. Hashemp our, considering the p robability and magnitude of the potentialharm to M r. Hashemp our. In addition, Defendants had actual, subjective awareness of therisk involved, but nevertheless proceeded with a conscious indifference to the rights, safetyor welfare of M r. Hashempour.

36. Defendants acted in an unconscionable manner in their wrongful denial and delay in thepayment of M r. Hashem pour's claim for occupational accident benefits, all for whichHashemp our further sues.

Violation of the Texas Dec eptive Trade Practices Act37 . Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs

of this Petition.38 ,he Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) providesadditional protections to consumers who are victims of deceptive, improp er or illegal actsand practices. Defendants' violations ofthe Texas Insurance Code create an additional causeof action under the DTPA. Defendants' conduct as recited in this petition and theirviolations of the Texa s Insurance C ode, as recite herein, also constitute violations of the

DTPA for which H ashemp our further sues for his damages,Damages

-8 -AHashernyourTaition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 15 of 74


21/83

39. Plaintiff is entitled to the actual damag es resulting from the wrongful and illegal c onduct ofDefendants. These damag es include the consequential damages to his economic w elfarefrom the wrongful denial and delay in payment of occupational accident benefits, mentalanguish and physical suffering resulting from this w rongful denial of benefits, and all otheractual damages permitted by law. He is also entitled to those damages resulting from thedelay in providing medical benefits resulting in p ermanent injury and damage. For thesedamages and the c onduct recited in this complaint, Defendants are jointly and severallyliable.

40. Plaintiff is further entitled to statutory multiple dam ages and other penalties as p ermitted bylaw.

Exem p lary D amages41. 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 thePlaintiff. As suc h, their actions reflected gross neg ligence and w ere so outrageous as towarrant the imposition of punitive or exemplary damages, for which Plaintiff further suesfor recovery. Accordingly, Plaintiff seeks such punitive or exemplary damages as may beassessed by the jury in its discretion.

Attorneys F ees42. This suit was made nec essary by the wrongful ac ts and practices of Defendants. Plaintiff has

been forced to retain an attorney to prosecute his claims, for which Plaintiff has agreed topay a reasonable attorney's fee. In this regard, Plaintiff is entitled to recover his reasonableattorney's fees and expenses incurred and to be incurred for the full p rosecution of this claim

-9 -AliashempourkPetition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 16 of 74


22/83

through trial and ap peal, if any, that are reasonable and necessary for Plaintiff to obtain therelief he seeks. Accordingly, Plaintiff further seeks recovery of his reasonable attorney'sfees pursuant to 5 41.152, 542.051 and Ch apter 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.

Disclosures43. 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 responsiveto this request must be served on Plaintiff with your Response. Tex. R. Civ. P. 194.4

General Claims44. All notices required to be given hav e 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 dem ands a jury trial.

WHE R EFOR E, PR EM ISES CON SIDERED, Plaintif f, R ay Hashempour, prays that theDefendants be cited to appear and answer this action, and following their appearance, he h ave fulltrial on the merits of his claim, that he have and recover his actual, statutory and exemplarydamages, together w ith his reasonable attorney's fees, costs, expenses, and interest to which he m aybe justly entitled, and for general relief.

-10-AHashempourTetidon.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 17 of 74


23/83

Respectfully submitted,Ovuit, pooled by lame. ( 1.1.menteJ ames C.ht.F.Mor.e ,Kurkendal, ou.

urnmerBy:la, 201 OM 1,110.36 .05tXtJames C. Plummer, TBA 416075700Amar Raval, TBA #24046682P LUM M ER & A SSOCI A TES4203 M ontrose Boulevard, Suite 270H ouston, Texas 77006(713) 522-2887(713) 522-3605 (Fax)Jp1ummer@p I ummerlawyers.comDavid GarciaDavid Garcia Law O ffice, P.C.719 Chihuhua S treet, Suite 105Laredo, Texas 78040956-726-9693956-726-3421 (fax)Davidg22Qsbcglobal.net

ATTORN EYS FOR PL AINTIFF

K:kHafhempourTetition.wpd



24/83

Oscar J. Hale, jr.*tate r iotr ict T ubge406TH Judicial District Court

1110 Victoria St., Suite 402Laredo, Texas 78040

[email protected] NO. (956) 523-4954FAX NO. (956) 523-5074

CAUSE NO: 2011CVF001161D4STYLE: RAY HASHEMPOUR

VSACE AMERICAN INSURANCE COMPANY AND ET. AL.

Please take NO TICE that this case is set for CALEN DAR CALL on the 1S T day ofNOVEM BER 2011 at 2:00 P.M. at the 406th District Court, 4th Floor, Webb C ountyJustice Center.

All C alendar Call hearings will be in open court and on the record before the HonorableJudge Oscar J. Hale, Jr. Your presence is MAN DATO R Y unless Counsel for Plaintiff(s)and Defendant(s) file a Joint Pre-Trial Guideline Order (PTGO) with all counsel signatureson the PTGO .

Y ou may download the PTGO at our website:www.Webbcountytx,gov/DC406th/Forms

Counsel fo r Plaintiff(s) please note that if you fail to appear your c ase may be dismissed forlack of prosecution.

Counsel for Defendant(s) please note that if you fail to appear for calendar call, a pre-trialguideline 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 MaldonadoCivil Court Coordinator



25/83

ww Transmit Confirmation Report wwP . 1u g 4 2 0 1 1 0 2 : 0 9 P mW E B B C O D I S T R I C T C L E R K F a x : 9 5 6 - 5 2 3 - 5 1 2 1N a m e / F a x N o . M o d e S t a r t T i m e P a g e R e s u l t N o t e9 1 7 1 3 5 2 2 3 6 0 5 F i n e 0 4 , 0 2 : 0 9 P m 0 ' 2 4 " 1 0 K

Oscar J. Hale, Jr.R o t a t e it 'arid 3rubge

406TH Judicial District Court1110 Victoria St., Suite 402

Laredo, Texas 78040406631webbcountyui.gotELEP HO NE NO . (956 ) 52 3 - 4954

EAt NO, (9%) 525-5074

CAUSE NO: 201107001161D4STYLE: RA Y H A SH E MPOUR

VSACE AMERICAN INSURANCE COMPAN Y AND ET AL.

Please take NOTICE that this case is stt for CALEN DAR CALL on the 1S T day o rNOV E MB E R 2011 at 2:00 P.M. at the 406th District Court, 4th floor, Webb CountyJustice Center.

All C alendar Call hearings will be in open court and on the record before the HonorableJudge Oscar J. Hale, Jr. Your presence is MANDATORY unless Counsel for Plaintiff(s)and Defendant(s) file a Joint Pre-Trial Guideline Order (PTG O) with all c ounsel signatureson 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 forlack of prosecution.

Counsel for Defendant(s) please note that if you fail to appear for calendar call, a pre-trialguideline order may be entered with or w ithout your approval an d/or signature.

If there are any q uestions regarding this matter please feel free to call our office at any time.

Cruz MaldonadoCivil Court Coordinator



26/83

3 .



27/83

C T C o r p o r a t io .n Service of ProcessTransmittal09/07/2011CT Log Number 519112240

TO:averio Rocca, Corporate CounselACE Group436 Walnut Street, 2nd Floor WAO2CPhiladelphia, PA 19106RE:rocess Served in TexasFOR: ACE American Insurance Company (Domestic State: PA)

ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE MOVE COMPANY AS FOLLOWS:

ACTION ITEMS:

Ray Hashempour, Pltf. vs. Ace American Insurance Company, et al., Dfts.Citation, Return Form, Original Petition, Notice406th Judicial District Court Webb County, TXCase it 2011CVF00116104Insurance Litigation - Breach of Contract - Ace wrongfully terminated benefits underthe PolicyC T Corporation System, Dallas, TXBy Process Server on 09/0712011 at 14:15TexasAt or Before 10:00 a.m, on the Monday next after the expiration of 20 days - FileWritten Answer // On November 1, 2011 at 2:00 p.m. - Calendar CallJames C. PlummerPlummer a Associates4203 Montrose BoulevardSuite 270Houston, 1-)( 77006713/522-2887CT has retained the current log, Retain Date: 09/07/2011, Expected Purge Date:09/12/2011Image SOPEmail Notification, Adrienne Logan ADRIENNE.LOGAN@acegroup,comEmail Notification, Marie Morrill [email protected] Notification, Pamela Martin [email protected] Notification, Angela Jay [email protected] Notification, Darlene Schneider [email protected] T Corporation SystemBeatrice Casarez350 North St Paul StreetSuite 2900Dallas, TX 75201214-932-3601

Page 1 of 1 / SDInformation displayed on this transmittal is for CT Colporation'srecord keeping purposes only and Is provided to the recipient forquick reference. This information does not constitute a legalopinion as to the nature of action, the amount of damages, theanswer date, or any information contained in the documentsthemselves, Recipient is responsible for interpreting saiddocuments bnd for taking appropriate action. Signatures oncertified mall receipts confirm receipt of package only, notcontents.

TITLE OF ACTION:DOCUMENT(S) SERVED:COURT/AGENCY:

NATURE OF ACTION:

ON WHOM PROCESS WAS SERVED:DATE AND HOUR OF SERVICE:JURISDICTION SERVEDAPPEARANCE OR ANSWER DUE:

ATTORNEY(S) I SENDER(S):

SIGNED:PER:ADDRESS:

TELEPHONE:



28/83


29/83

2011CVF001161 D4OFFICER' S RETURN

Came to hand on the day of2011 atO'CLOCKM. Executed atwithin the COUNTY oft'CLOCKM. ontheday of2011, by delivering to thewithin named ACE AMERICAN INSURANCE COMPANY, each, in person, a truecopy of this citation together with the accompanying copy of thepetition, having first attached such copy of such petition to suchcopy of citation and endorsed on such copy of citation the date ofdelivery.

The distance actually traveled by me in serving such process wasmiles, and my fees are as follows:Total Fee fo r serving this citationTo certify which, witness my hand o fficially.SHERIFF, CONSTABLECOUNTY, TEXAS

BY DEPUTYTHE STATE OF TEXAS }COUNTY OF WEBBBefore me, the undersigned authority, on this day personallyappearedwho after being duly sworn,upon oath said that a notice, of which the above is a true cop y, wasby him/her delivered toon theday ofSWORN TO AND SUBSCRIBED BEFORE ME on theday of, to certify which witness my hand and seal of o ffice.NOTARY PUBLICMY COMMISSION EXPIRESCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 24 of 74


30/83

CAUSE NO. 02004 - F00 //bW VFiled11 Augu st 3 P12:39Esther Dow nedDistrict ClerkW ebb District011CVF1.1181D4

'p-ee% 4b .R A Y H A SH E M P O U R IN THE DISTRICT CV S . WEB B COUN T Y , TEXA S

1/P6A CE A M ER I CA N I N SURA N CECOM PANY , GAL L AGHER BASSETTSERVICES, INC., & DIVERSIMED, INC, JUDICIAL DISTRICT

PL A I N T I F F 'S O R I G I N A L P E T I T I O N

T O T H E H O N O R A B L E JU D G E O F T H E C O U R T :This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACE

American Insurance Com pany, Gallagh er Bassett Services, Inc., and Diversimed, Inc.I.iscovery in this case is intended to be conducted under Level 2, pursuant to Texas Rule ofCivil Procedure 190.3. Parties2. Plaintiff, Ray H ashempour ("H ashempour"), is a resident citizen of the State of Texas,3. Defendant, ACE Am erican Insurance Company ("A CE"), is a domestic or foreign insurance

company licensed to do business and doing business in the State of Texas. This Defendantmay be served with service of process by serving its registered agent, CT CorporationSystem, 35 0 N orth Paul St., Dallas, TX, 7 5201, or wherever it may be found.

4. Defendant, Gallagher Bassett Services, Inc. ("Gallagher B assett") is a dom estic or foreigncorporation doing business in the State of Texas. This Defendant may be served withservice of process by serving its registered agent, Prentice Hall Corp. System, 701 BrazosStreet, Suite 1050, Austin, TX 7 870 I , or wherever it may be found.



31/83

5. Defendant, Diversimed, Inc. ("Diversimed"), is a dom estic or foreign c orporation doingbusiness in the State of Texas, and may be served by serving its registered agent, LonnieH arvey, at I 011 O rangewalk Driver, Brandon, Florida 33511, or wherever it may be found.

Venue6. Venue is proper in Webb County, Texas under Tex. Civ. Frac. & R em. Code 15 .002(a)( I)

& (4) in that all or a substantial part of the events or om issions giving rise to this claimoccurred in Webb County, and Hashem pour resided at all relevant times in W ebb County,Texas. The obligations under the insurance policy at issue were to be performed in WebbCounty,he investigation and adjustment of Hashempour's claim, includingcommunications to and from Defendants occurred in Webb County, Texas. Venue is alsoproper pursuant to Tex, Civ. Frac. & Rem. Code 15.032 since ACE is an "accidentinsurance company" as that term is defined by law, and Ray Hashempour at relevant timeswas a resident of Webb County Texas.

Facts & Factual Background7. R ay H ashempour 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 whileengaged in this occupation. As a result of that occupational injury, he was unable to returnto his occup ation as an over-the-road truck driver.

8. An initial diagnosis of Hashempour was lumbar sp ondylosis and lumbar disc herniation, acondition caused by that injury . His symptoms included severe right leg pain, andnumbness and w eakness in his lower extremities.

-2- KA llashompounPetition . wpd



32/83

9 . In October of 2009, Ray Hashempour underwent a lumbar fusion. Although the initialprognosis for the surgical outcome was positive, in medical follow ups following thatsurgery, Hashem pour reported the pain getting progressively worse. He also reported, alongwith 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 lumbarpost-lam inectomy and fusion, and chronic pain syndrome. His treating physicians opinedhe was totally incapacitated and unable to return to work.

I I .efore his February, 2009 injury, Hashempour purchased an occupational accident insurancepolicy from ACE American Insurance Company ("ACE"), That policy was Policy No. TOCN01303533 (the "Policy"). The Policy provided for the payment wage replacement andmedical benefits in accordance with its terms in the event the insured suffered anoccupational injury resulting in his disability. Temporary Total Disability benefits werepayable for a maximum period of 104 weeks. Permanent Total Disability benefits werepayable to the date the insured's Social Security Disability Award stopped.

12 . Hashempour timely gave notice to ACE or its claims administrator, Broadspire, of hisoccupational injury. With the documented medical supplied, Broadspire determined thatHashempour met the Policy requirements for Temporary Total Disability and proceed to payboth indemnity and medical benefits.

13 . On March 1, 2010, management for Hashempour's claim was transferred from Broadspireto Gallagher Bassett Services ("Gallagher Bassett"). Hashempour or his treating physicianscontinued to supply Gallagher Bassett with reports of his medical condition opining in

-3- KAHashcmpourWe4ition.wpd



33/83

significant part that Ray H ashem p our remained "unable to return to work" and that heremained "totally incapacitated" from his occ upation.

14. Gallagher Bassett then engaged Diversimed, Inc. ("Diversimed") to arrange for an alleged"independent" medical examination ofHashempour. Diversimed then engaged a Dr. RubenPech ero to perform that m edical examination. Diversimed or Gallagher B assett or bothfailed to determine Pec hero's qualifications to provide an objective m edical assessment ofHashempour's condition and ability to return to work, and cherry-picked the informationsupplied Pec hero. Alternatively, Gallagher B assett and Diversimed failed to investigate anddetermine the qualifications of its designated "independent" medical examiner.

15. Although questioning the qualifications of Dr. Pechero to perform a m edical examination,Hash empour p roceeded with that examination. Dr. Pech ero then reported to Diversimed andGallagher B assett that Ray Hashemp our could return to work on an unrestricted basis. Thisopinion was erroneous, made without a complete record of Mr. Hashempour's medicalhistory, and without know ledge of the nature of Hashem p our' s occupation. As important,it was the result of an outcome oriented examination designed to provide a basis fortermination of benefits to Hashempour.

16. On September 23, 2010, Gallagher Bassett, without a reasonable basis, terminatedHashempour's claim, and ceased paying indemnity and medical benefits due under thePolicy. Th is termination occurred despite repeated request from Hashem pour for m edicalattention and repeated reports of his treating physicians of the need for continued medicalattention.

-4-Niuhempour\Pctition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 28 of 74


34/83

17 . Gallagher Bassett acting as the agent for ACE wrongfully terminated benefits under thePolicy. They were motivated, on information and belief, by a desire to avoid the continuedfinancial 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 hepurchased and paid for the Policy. He has been limited and prevented from obtainingnecessary medical attention and medication causing a deterioration in his health condition.He has been subjected to the severe economic impact ofthis denial, suffering worry, distressand severe damage health and economic future.

19 . At all material times, Gallagher Bassett was as an agent of ACE, acting within the scope ofits 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 principalin purporting to provide Gallagher Bassett and ACE with "savings" by knowingly usingincompetent or unqualified medical consultants for medical exams, as undertaken with RayHashempour, to his injury and damage.

Causes of ActionBreach of Contract

20 . ACE promised to pay medical and income benefits in accordance with the terms of its Policyin the event Ray Hashempour became disabled because of an occupational accident. RayHashempour suffered an occupational injury resulting in his disability as defined in thePolicy and fully cooperated with ACE or its agents in their adjustment of his claim. RayHashempour was and remains disabled as defined in the Policy.

-5-AliashempourWetition.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 29 of 74


35/83

21. ACE's termination of Ray Hashempour's disability benefits constitutes a breach of theinsurance policy, for which he now sues.

Violations of the Texas Insurance Code22. Plaintiff re-alleges and incorporates each alleg ation contained in the proc eeding paragraph s

of this Petition.23. Defendants failed to attempt to effectuate a promp t, fair, and equitable settlement of this

claim with respect to w hich its liability had becom e reasonably clear in violation of TexasInsurance Code 541.060 (a)(2)(A).

24. Defendants failed to adop t and imp lement reasonable standards for the prompt investigationof claims arising under its policies.

25. Defendants failed to provide promptly a reasonable explanation, in relation to the facts orapplicable 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 withrespect to this claim in violation of Texas Insurance Code 5 41.060 (a)(7).

27. Defendants misrepresented the insurance policy under which it afforded occupationalaccident insurance cov erage to M r. Hashem pour by mak ing an untrue statements of materialfact in violation of Texas Insurance Code 5 41.060 (1).

28. Defendants misrepresented the insurance policy under which it afforded occupationalaccident insurance cov erage by failing to state a material fact that is necessary to mak e otherstatements made not misleading in violation of Texas Insurance Code 541.060 (2).

-6 - KAHashcmpour1 Petkion.wpd



36/83

29 . Defendants misrepresented the insurance policy under which it afforded occupationalaccident insurance to Mr. Hashempour by making a statement in such a manner as to misleada reasonably prudent person to a false conclusion of material fact, and in failing to disclosea 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,efendants' conduct also constituted unfair claims settlement practices in violation of theTexas Insurance Code 542.003, et seq.

Breach of the Duty of Good Faith & Fair Dealing32. 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. Defendantbreached this duty by failing and refusing to timely and properly investigate, adjust, pay, andin its denial of his claim in the absence of a reasonable basis for this denial. Defendant knewor should have known that there was no reasonable basis for its delay in payment or denialof 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 anddamage to Hashempour, for which he further sues.

Legal "Malice" & Unconscionability

-7 - KAHashempourWctition.wpd



37/83

34. Plaint i ff re-alleges and incorporates each allegation contained in the proceeding p aragraphsof this Petition.

35. Defendants acted fraudulently and with malice in denying M r. Hashem pour's claim foroccupational accident benefits. Defendants' conduct when viewed objectively from itsstandpoint, at the time of the occurrence complained of in this action, involved an extremedegree of risk to Mr. Hashempour, considering the probability and magnitude of the potentialharm to M r. Hashemp our. In addition, Defendants had ac tual, subjective awareness of therisk involv ed, but nevertheless proceeded with a c onscious indifference to the rights, safetyor welfare of Mr. Hash empour.

36. Defendants acted in an unconscionable manner in their wrongful denial and delay in thepayment of Mr. Hashempour's claim for occupational accident benefits, all for whichHash empour further sues.

Violation of the Texas Deceptive Trade Practices Act37. Plaintiff re-alleges and incorporates each allegation contained in the proceeding paragraphs

of this P etition.38. The Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) provides

additional protections to consumers wh o are victims of deceptive, improper or illegal ac tsand practices. Defendants' violations ofthe Texas Insurance Code c reate an additional causeof action under the DTPA. Defendants' conduct as recited in this petition and theirviolations of the Texas I nsurance Code, as recite h erein, also constitute violations of theDTPA for which H ashempour further sues for his damages.

Dam ages

-8 - KAllashempouAPetition.wpd



38/83

39 . Plaintiff is entitled to the actual damages resulting from the wrongful and illegal conducfofDefendants, These damages include the consequential damages to his economic welfarefrom the wrongful denial and delay in payment of occupational accident benefits, mentalanguish and physical suffering resulting from this wrongful denial of benefits, and all otheractual damages permitted by law. He is also entitled to those damages resulting from thedelay in providing medical benefits resulting in permanent injury and damage. For thesedamages and the conduct recited in this complaint, Defendants are jointly and severallyliable.

40 . Plaintiff is further entitled to statutory multiple damages and other penalties as permitted bylaw.

Exemplary Damages41 . 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 thePlaintiff. As such, their actions reflected gross negligence and were so outrageous as towarrant the imposition of punitive or exemplary damages, for which Plaintiff further suesfor recovery. Accordingly, Plaintiff seeks such punitive or exemplary damages as may beassessed by the jury in its discretion.

Attorneys Fees42 . 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 topay a reasonable attorney's fee. In this regard, Plaintiff is entitled to recover his reasonableattorney's fees and expenses incurred and to be incurred for the full prosecution ofthis claim

-9- KAHashempoWnition,wpd



39/83

through trial and appeal, if any, that are reasonable and necessary for Plainti ff to obtain therelief he seeks. Accordingly, Plaintiff further seeks recovery of his reasonable attorney'sfees 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.

Disclosures43. 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 responsiveto this request must be served on Plaintiff with your Response. Tex. R. Civ. P. 194.4

General Claims44 . 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 theDefendants be cited to appear and answer this action, and following their appearance, he have fulltrial on the merits of his claim, that he have and recover his actual, statutory and exemplarydamages, together with his reasonable attorney's fees, costs, expenses, and interest to which he maybe justly entitled, and for general relief.

-1 0 - KAHashempourVetition.wpd



40/83

Respectfully submitted,DOIaly signed by /mei C. MinnowDH: cm.. Plyrnr.CPlurnrno4 1 4 , 0 e A d a Y,erail)01...00.1rnelOwyt 3(0By; Plummer--n e : 1 0 1 1 . 0 4 . 0 3 ROM -05W1James C. Plummer, TBA #1607 5700Amar Raval, TBA #24046682P LUM M ER & A SSOCI A TES4203 M ontrose Boulevard, Suite 270Houston, Texas 77006(713) 522-2887(713) 522-3605 (Fax)[email protected]

David GarciaDavid Garcia Law O ffice, P.C.719 Chihuhua Street, Suite 105Laredo, Texas 78040956-726-9693956-726-3421 (fax)[email protected]

A T T ORN EY S FOR P LA I N T IFF

James C

K:WashempourVelition.wpd



41/83

4.



42/83

CAUSE NO. 2011-CVF001161D4

Filed11 S eptember 30 PEsther DegolladoDistrict ClerkWebb District2 0 1 1 - C V F 0 0 1 1 6 1 DRAY HASHEMPOUR,

Plaintiff,V .ACE AMERICAN INSURANCECOMPANY, GALLAGHER BASSETTSERVICES, INC., & DIVERSIMED,INC.,

D efendants.

IN T H E D I ST R IC T C O U R T

406T H JUDICIAL DISTRICT

W E B B C O U N T Y , T E XA S

DEP ENDANT ACE AMERICAN INSURANCE COMPANY ANDGALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VENUEAND SUBJECT THERETO AND WITHOUT WAIVING SAME ORIGINAL ANSWERCOME 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 SameOriginal 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 pledin 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 asubstantial part of the alleged events or omissions giving rise to the claims asserted in Plaintiff'sOriginal 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 atissue were to be performed in Webb County, (f) deny that the investigation and adjustment of

D E FEND A NT A C E A M E R I C A N INSU R A N C E CO M P A N Y A N DGALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEAND SUBJECr THERETO AN D WITHOUT WAIVING SAME OR IGINAL ANSWERage 1Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 37 of 74


43/83

Plaintiff's claim, including communications to and from Plaintiff occurred in Webb County, and(g) deny that W ebb County is a conve nient venue for Plaintiff's lawsuit.

2.exas Civil Practice and Remedies Code Section 15.002 states:(a)xcept as otherwise provided by this subchapter or Subchapter B or C, al llawsui ts shal l be brought :(1 ) in the county in which a l l o r a substant ia l par t o f the events or omiss ionsgiv ing r ise to the c la im occurred;(2 ) in the county of defendant's residence at the time the cause of actionaccrued if defendant is a natural person;(3 ) in the county of the defendant's principal office in this state, if thedefendant is not a natural person; or(4 ) i f Subdiv is ions (1), (2), and (3) do not apply, in the county in which theplain t i ff res ided at the t im e of the ac cru al o f the c ause of ac t ion.

Texas Civil Practice and R emedies Code Section 15.032 states:Suit against f i re, mar ine, or in land insurance companies may a lso be commenced in any countyin wh ic h the ins u red proper ty was s itu a ted . A s u i t on a po l i c y m ay be b rou g h t ag ains t any l i feinsurance company, or accident insurance company, or life and accident, or health andaccident, or l i fe, heal th , and acc ident insurance company in the county in which the company'sprincipal office in this state is located or in the county in which the loss has occurred or in whichthe policyholder or beneficiary instituting the suit resided at the time the cause of actionacc rued. (Emphasis added)

3.laintiff's cause of action arises out of the adjustment and handling of aninsurance claim under an Occupational Accident Policy ("Policy"). More specifically, thepropriety of the independent medical examination by a duly licensed Texas physician in HidalgoCounty, Texas is at issue.

4.CE issued the Policy and Gallagher provided adjusting services.5.he 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. ACEhas Texas offices in Houston and Dallas.

D E FE ND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER B ASSE1T SERVICES, INC.'S M OTION TO TRANSFER VEN UEA ND SU B JE C T T HE R E T O A ND W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 2Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 38 of 74


44/83

6. Gallag her is incorporated in Delaware with its principal pl ace of business inIllinois. The adjusting and handling of Plaintiff's claim was performed from Gallagher's officein Kansas City, M issouri.

7. Diversimed, Inc. ("Diversimed") is a Florida corporation with its principal plac eof business in Florida. Diversimed retained Dr. Pech ero. Dr. Pechero p rovides medical servicesin Hidalgo County, Texas ("Hidalgo County"), and on information and belief lives in HidalgoCounty.

8. Plaintiff lived at all times relevant to his c laim in Torreon, Coahuila, M exico. 1Plaintiff sent numerous faxes and emails concerning his claim to adjusters, including Gallagher,from Torreon, Coahuila, Mexico. In those communications, Plaintiff represented that he residedin Toffeon, Coahuila, M exico with his wife because she w as unable to live in the U nited States.Plaintiff represented that because he resided in Torreon, Coahuila, M exico, that travel formedical treatment to the United States was difficult. As a result, Plaintiff received a significantportion of the medical treatment related to his claim in Torreon, Coahuila, Mexico. Plaintiff alsoreceived medical treatment in Bexar County, Texas ("Bexar County") (where he had surgery),H anis County, Texas ("H arris County"), and H idalgo County where h e was examined by Dr.Pech ero, the fact giv ing rise to Plaintiff's cause of action, in addition to Webb County.

9. At no time did Plaintiff maintain a p lace of residence in W ebb County during thependency of h is occup ational accident injury claim. Plaintiff's Webb County address, 59 12 SanBernardo Av enue, Laredo, Texas, is a United States Postal Service loc ation. Although , Plaintiffwas sent correspondence and payments to a P.O. Box at the United States Postal Service location

Plaintiff, a long-aul truck driver on contract with Sw ift Transportation Com pany, Inc.("Swift"), had previously resided in Friendship, Tennessee.D E FE ND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER BASSETI ' SERVICES, INC. 'S MO TION TO TRANSFER VENUEA ND SU B JE C T T HE R E T O A ND W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 3



45/83

in Webb County as p art of the adjustment of his c laim, Plaintiff did not reside in Webb County.Plaintiff could not have resided at 59 12 San Bernardo A venue, Laredo, Texas, but rather onlymaintained a P.O. Box for receiving mail in Webb County.

10. This case should be transferred out of Webb County to Harris County becauseWebb County is not a county wh ere all or a substantial part of the events or omissions giving riseto this lawsuit occurred. Tex. Civ. Prac. & R em. Code 15.002(a)(1). ACE is located inPennsylvania and the Policy, the subject of this lawsuit, was delivered to the first named insured,Swift, in A rizona. Gallagh er performed aljusting services for the c laim from K ansas City,M issouri. Plaintiff received com munications from Ga llagh er while in Torreon, Coahuila,M exico. Diversimed is located in Florida and it retained Dr. Pechero to conduct an independentmedical examination which occurred in Hidalgo County. The claim adjusting, therefore,occurred in Kansas City, M issouri and Torreon, Coahuila, M exico. Other than the receipt ofmail, there is no determinative fact that Plaintiff can point to that involves Webb County.

11. Further, Plaintiff was not a resident of Webb Coun ty at the time of the accrual ofthe cause of action. Tex. Civ. Prac. & R em. Code 15.002(a)(4).

12 . Venue for this cause of ac tion should be transferred to Harris County. Venue isproper in th e county of a defendant's principal office in Texas if the defendant is not a naturalperson. Tex. Civ. Prac. & R em. Code 15.002(a)(3); Tex. Civ. Prac. & R em. Code 15.032.ACE has an office in Texas in H arris and Dallas counties, and part of the medical treatmentoccurred in Harris County.

13. In the alternative, venue for this cause of action should be transferred to H idalgoCounty. Venue is prop er in the county in w hich all or a substantial part of the ev ents oromissions giving rise to the claim occurred. Tex. Civ. Pmc. & Rem. Code 15.002(a)(1). TheD E FE ND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER B ASSETT SERVICES, INC. 'S MO TION TO TR ANSFER VENU EAND SUBJECT ThERETO AND WITHO UT WAIVING SAME OR IGINAL ANSWERage 4



46/83

independent medical examination that Plaintiff alleges was imp roper, occurred in H idalgoCounty.

1 4 .n the further alternative, Defendants ACE and Gallagher object to venue in WebbCounty in that same is an inconvenient venue. Maintenance of the action in Webb County wouldwork an injustice on Defendants ACE and Gallagher. Plaintiff has received medical treatment inboth H arris County and Hidalgo C ounty for the injuries related to his claim, as w ell as, BexarCounty, and Torreon, Coahuila, M exico. Therefore, venue in a county other than W ebb Countywould not be an econ omic or p ersonal hardship on Plaintiff. The balance of the interests of allparties predominates in favor of the action being brought in Harris County, or in the alternative,Hidalgo County. Tex. Civ. Prac. & R em. Code 15.002(b).

W H ER EF O R E, P R EM I SES C O N S ID ER ED , this case should be transferred to HarrisCounty. Venue is proper in Harris County under Texas Civil Practice & R emedies Code15.002(a)(3) and Texas Civil Practice & R emedies Code 15.032 because ACE has its principaloffice in Texas in H arris County. In the alternative, this case should be transferred to H idalgoCounty. Venue is proper in H idalgo County under Tex. Civ. Prac. & R em. Code 15.002(a)(1)because all or a substantial part of the ev ents or omissions giving rise to the cl aim occurred inH idalgo, County. In the further alternative, venue is also proper in H arris County or H idalgoCounty under Texas Civil Practice & R emedies Code 15.002(b). Bec ause Plaintiff did notreside in Webb C ounty, Plaintiff's reliance on Tex. Civ. Prac. & R em. Code 15.002(a)(4) isunavailing. Therefore, Defendants ACE and Gallagher pray that the Court transfer venue fromWebb County to H arris County and for all further relief, in equity and at law, to which they areentitled.

D E FEND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER B ASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEA ND SU B JE C T T HE R E T O A ND W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 5Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 41 of 74


47/83

ILSUBJECT TO THEIR MOTION TO TRANSFER VENUE, DEFENDANTS ACE ANDGALLAGHER'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

Defendants ACE and Gallagh er file subject to but without waiving their M otion to TransferVenue, their Original Answer and Affirmative Defenses as follows:

G eneral D enial1. Pursuant to Rule 9 2 of the Texas Rules of Civil Procedure, Defendants ACE and

Gallag her generally deny each and every allegation pled by Plaintiff and all subsequentamendments and supp lements thereto, and require that Plaintiff prove same by th e standard ofproof prov ided by the Constitution and laws of this State.

Affirm ative D efenses2. Defendants ACE and Gallagher affirmatively assert that Plaintiffs' claims are

precl uded by the terms, conditions, covenan ts, definitions, obligations, prov isions, exclusions,limits, sublimits, and endorsements of the Policy issued by A CE to Sw ift, wh ich P olicy isincorporated herein as tho ugh set forth verbatim. Plaintiff' s claims are therefore barred inwhole or in part.

3. Defendants ACE and Gallagh er specifically deny that Plaintiff complied with allconditions precedent under the Policy.

4. Defendants ACE and Gallag her assert that all benefits owed Plaintiff under thePolicy have been paid.

5. In the strict alternative, Defendants ACE and Gallag her are not liable to Plaintiffin an amount greater than the limits set forth in the Policy.

D E FEND A NT A C E A M E R I C A N INSU R A N C E CO M P A N Y A N DGALLAGHER B ASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEA ND SU B JE C T T HE R E T O A ND W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 6Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 42 of 74


48/83

6. To the extent applicable, Defendants ACE and Gallagher assert the statute oflimitations.

7 . Defendants ACE and Gallagher affirmatively deny that they violated the TexasInsurance Code or the Texas Deceptive Trade Practices Act.

8 . Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled topunitive 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 FifthAmendment of the United States Constitution as applied to the States through the FourteenthAmendment of the United States Constitution. Defendants ACE and Gallagher affirmativelyplead that Plaintiff's pleading of punitive and/or exemplary damages is violative of the dueprocess clauses of the Fifth and Fourteenth Amendments inasmuch as punitive and/or exemplarydamages can be assessed:

a. In an am ount left to the discretion of the jury and judge ;b. In assessing such sums, the decision of the jury need only be basedon vote of ten jurors and does not require a unanim ous verdict;c . hi assessing such penalty or exemplary awards, Plaintiff need onlyprove the theory of gross negligence or conscious indifference on a

"preponderance of the evidence" standard and not "beyond areasonable doubt" standard as should be required in assessing apunishment award;

d. Further, Defendants ACE and Gallagher, who are subject to anaward, if any, do not have the right to refuse to testify againstthemselves, but must in fact take the stand and/or give depositiontestimony or subject its company to the consequences of a defaultjudgment;

e. The assessment of such a punishment and/or exemplary award isnot based upon a clearly defined statutory enactment setting forth aspecific mens rea requirement and/or the prerequisites of criminalfine and in effect, allows the assessment of such awards even

D E FEND A NT A C E A M E R I C A N INSU R A N C E CO M P A N Y A N DGALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEA ND SU B JE C T 'T HE R E T O A N D W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 7Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 43 of 74


49/83

though there are no special standards, limits or other statutoryrequirements set forth that define the mens rea and scope and limitof such aw ards. Therefore, the aw ards are unduly vag ue and donot meet the requirements of due process; andf.n essence, Defendants ACE and Gallagher are subject to all of thehazards and risks of what in essence amounts to a fine, and in fact,such aw ards often exceed normal c riminal fines, but DefendantsACE and Gallagher receive none of the basic rights accorded to acriminal defendant when being subjected to possible criminalpenalties.9. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled topunitive damages; however, in the alternative, if the Court makes an award of punitive damages,

Defendants ACE and Gallag her affirmatively assert that Plaintiff's claim for pun itive damagesbe denied as violative of the equal protection rights guaranteed by the Fifth and FourteenthAmendments to the Constitution of the U nited States, the p rovisions of the Eigh th A mendmentto the Constitution of the U nited 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 topunitive 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 orgrossly excessive. An award of punitive damages m ust have a reasonable relationship to theharm to the plaintiff and may not constitute an improper tak ing by attempting to com pensatealleged victims not before the Court.

11. Defendants ACE and Gallagher affirmatively assert that Plaintiff is not entitled topunitive or exemplary damag es; howev er, in the alternative, an award of punitive or exemplarydamages may only be awarded upon a unanimous finding by clear and convincing evidence bythe jury of malice or gross negligence. Further, an award of punitive or exemplary damages mayD E FE ND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER BASSETI ' SERVICES, INC. 'S MO TION TO TRANSFER VENUEA ND SU B JE C T THE R E T O A N D W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 8



50/83

not be maintained unless actual damages beyond nominal damag es are awarded by the fact-finder.

1 2 .efendants ACE and Gall agher affirmatively assert that Plaintiff is not entitled topunitive or exemplary damages; how ever, in the alternative, if the C ourt mak es an award ofpunitive or exemplary damages, Defendants ACE and Gallagher affirmatively asserts that anysuch award of punitive or exemplary damages is subject to Texas Civil Practice and RemediesCode Chapter 41 and all caps or limits on the award of punitive or exemplary damages.

P R A Y E RWH ER EFOR E, PREM ISES CON SIDERED, Defendants Ace American InsuranceCompany and Gallagher Bassett Services, Inc. pray that, SU BJEC T TO A ND W ITH O U T

WAIVER OF TH EIR M OTIO N TO TR AN SFER VEN UE, upon final trial and hearing hereof,Plaintiff take nothing and that Defendants A CE and Gallagh er recover their costs, fees, andexpenses, and for all relief, at law and in eq uity, to which th ey are entitled.

Respectfully submitted,COZEN O'CONNOR

c A - G e y El ectAABy:Alicia G. CurranState Bar Number 12587 500Craig C. CraftonState B ar N umber 240364131717 Main Street, Suite 3400Dallas, Texas 75201-733 5Telephone: (214) 462-3000Facsimile: (214) 462-3299ATTORNEYS FOR DEFENDANTS ACEAMERICAN INSURANCE COMPANY,GALLAGHER BASSETT SERVICES, INC.

D E FE ND A NT A C E A M E R I C A N I NSU R A NC E C O M P A NY A NDGALLAGHER B ASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEA ND SU B JE C T T HE R E T O A ND W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 9Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 45 of 74


51/83

C ER T I F I CA T E O F S E R V I C EI h ereby certify that on this 30th day of September, 2011, a true and correct copy of theabove and foreg oing was sent to Plaintiff's counsel, via certified mail, return receipt requested.

James C. Plummer, Esq.Amar Raval, Esq.Plummer & A ssociates4203 M ontrose Blvd, Suite 270Houston, TX 77006David Garcia, Esq.David Garcia Law O ffice, P.C.719 Chihuhua Street, Suite 105Laredo, TX 7 8040

aLc-,G e AAlicia G. CurranDALLAS\547730\2 312049.000

D E FEND A NT A C E A M E R I C A N INSU R A N C E CO M P A N Y A N DGALLAGHER BASSETT SERVICES, INC.'S MOTION TO TRANSFER VEN UEA ND SU B JE C T 'T HE R E T O A N D W I T HO U T W A I V I NG SA M E O R I G I NA L A NSW E Rage 10Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 46 of 74


52/83

\

5



53/83

AWof theFcert20theay ofE S T HE R DE G O L L A D Oser of thurtFiled11 September 12 A7:Esther DegolladoDistrict ClerkR A Y H A SH E M P O U R CAU SE NO . 2011CVF00116104IN ME DISTRICT COVS .EB B COUN T Y , TEXA SA CE A M ERI CA N I N SURA N CECOM P A N Y , G A LLA G H ER B A SSET TSERVICES, INC., & DIVERSIMED, INC.06 t h JUDICIAL DISTRICTPL A I N T I F F 'S F I R S T A M E N D E D O R I G I N A L PE T I T I O NT O T H E H ON O RA B LE JUD G E OF T H E COURT :This is a suit for damages by Ray Hashempour, Plaintiff, against Defendants, ACEAmerican Insurance Company, G allagher Bassett Services, Inc., Diversimed, Inc., and R uben D.Pechero.I.iscovery in this case is intended to be conducted under Level 2, p ursuant to Texas Rule o fCivil Procedure 190.3. Parties2. Plaintiff; Ray H ashempour ("H ashempour"), is a resident citizen of the State of Texas.3. Defendant, ACE American Insurance Comp any ("AC E"), is a domestic or foreign insurancecompany licensed to do business and doing business in the State of Texas. This Defendantmay be served with service of process by serving its registered agent, CT CorporationSystem, 350 N orth Paul St., Dallas, TX, 75 201, or wherever it may be found.4. Defendant, Gallagher Bassett Services, Inc. ("Gallagher Bassett") is a domestic or foreigncorporation doing business in the State of Texas. This Defendant may be served withservice of process by serving its registered agent, Prentice Hall C orp. System, 701 B razosStreet, Suite 1050, Austin, TX 7 8701, or w herever it may be found.9 . . a . 1 . 1 9, 2Case 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 48 of 74


54/83

5. Defendant, Diversimed, Inc, ("Diversimed"), is a dom estic or foreign c orporation doingbusiness in the State of Texas, and may be served by serving its registered agent, LonnieH arvey, at 1011 Orangewalk Driver, Brandon, Florida 335 11, or wherever it may be found.

6. Defendant, Ruben D. P echero ("Pec hero"), is a resident citizen of the State of Texas, andmay be served 1005 East Nolana, M cAllen, Texas 78504 or 55 08 N . Cynthia, Mc Allen,Texas 78504, or wherever he may be found.

V en ue7. Venue is proper in Webb County, Texas under Tex. Civ. Prac. & R em. Code 15 .002(a)(1)

& (4) in that all or a substantial part of the events or om issions giving rise to this claimoccurred 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 WebbCounty. The investigation and adjustment of Hashempour's claim, includingcommunications to and from Defendants occurred in Webb County, Texas. Venue is alsoproper pursuant to Tex. Civ. Prac. & Rem. Code 15.032 since ACE is an "accidentinsurance company" as that term is defined by law, and Ray Hashempour at relevant timeswas a resident of Webb County Texas.

Fac ts & F actual Bac kground8. R ay H ashempour 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 whileengaged in this occupation. As a result of that occupational injury, he was unable to returnto his occupation as an over-the-road truck driver.

-2-AHashempour \Petition - First Amencled.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 49 of 74


55/83

9. An initial diagnosis of Hashempour was lumbar spondylosis and lumbar disc herniation, acondition caused by that injury . His symptoms included severe right leg pain, andnumbness and weak ness in his lower extremities.

10. In O ctober of 2009, R ay Hash empour underwent a lumbar fusion. Althoug h the initialprognosis for the surgical outcome was positive, in medical follow ups, Hashempourreported the pain getting progressively worse. He also reported, along with other disablingconditions, cramping in the legs, pain through the feet, legs and back , all greatly restrictinghis activities of daily living.

11. By January of 2010, the follow up diagnosis by Hashempour's treating doctors was lumbarpost-laminectomy and fusion, and c hronic pain syndrome. H is treating ph ysicians opinedhe was totally incapacitated and unable to return to work,

12. Before his February, 2009 injury, Hashempour purchased an occupational accident insurancepolicy from ACE American Insurance Company ("ACE"). That policy was Policy No. TOCN01303533 (the "Policy"). The policyholder was Swift Transportation Co., Inc.Hashemp our was among the eligible class of persons eligible for this coverage. The Policyprovided for the payment wag e replacement and medical benefits in accordance with itsterms 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 SecurityDisability Award stopped.

13. Hashempour timely gave notice to ACE or its claims administrator, Broadspire, of hisoccup ational injury. With the docum ented medical supplied, B roadspire determined that

-3 -AHashempourTctition First Amended.wpdCase 5:11-cv-00129 Document 1-1 Filed in TXSD on 10/06/11 Page 50 of 74


56/83

Hashempour met the Policy requirements for Temporary Total Disability and proceed to payboth indemnity and medical benefits.

14. O n M arch 1, 2010, management for Hashempour's claim was transferred from Broadspireto Gallagher Bassett Services ("Gallagher Bassett"). Hashempour or his treating physicianscontinued to supply G a

hashempour v. ace american insurance company et al complaint

Documents