                                                                                       ACCEPTED
                                                                                   04-14-00752-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              6/10/2015 1:52:31 AM
                                                                                    KEITH HOTTLE
                                                                                            CLERK

                                 NO. 04-14-00752-CV

                        IN THE COURT OF APPEALS         FILED IN
                                                  4th COURT OF APPEALS
                   FOR THE FOURTH DISTRICT OF TEXAS
                             AT SAN ANTONIO        SAN ANTONIO, TEXAS
                                                          06/10/15 1:52:31 AM
                                                            KEITH E. HOTTLE
                                                                  Clerk

                      HUMANA INSURANCE COMPANY,
                              APPELLANT,


                                           V.


                               DOLORES MUELLER,
                                  APPELLEE.



                 On Appeal from the County Court at Law No. 3,
                             Bexar County, Texas

                           MOTION FOR REHEARING

                     OF APPELLEE DOLORES MUELLER




Stephen G. Nagle
State Bar No. 14779400
sgnagle@lawyernagle.com
1002 West Avenue, Suite 100
Austin, TX 78701
(512) 480-0505 - Telephone
(512) 480-0571 - Facsimile
ATTORNEY FOR APPELLEE DOLORES MUELLER

Oral Argument Requested



Humana vs. Mueller, Appellee’s Motion for Rehearing
                               NO. 04-14-00752-CV

                      IN THE COURT OF APPEALS
                 FOR THE FOURTH DISTRICT OF TEXAS
                           AT SAN ANTONIO


                     HUMANA INSURANCE COMPANY,

                                  APPELLANT

                                         V.

                             DOLORES MUELLER,

                                   APPELLEE



               On Appeal from the County Court at Law No. 3,
                           Bexar County, Texas


                         MOTION FOR REHEARING

                   OF APPELLEE DOLORES MUELLER

                              ISSUES PRESENTED

      A.    Does the opinion of the Court sufficiently address the question of


            jurisdiction of an appeal which is brought by an independent contractor

            to a political subdivision of the state?

      B.    Is the decision of the Court correct in light of the decision of the Texas

            Supreme Court in Brown & Gay Engineering, Inc. v. Olivares?



______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 1 of 6
                      ARGUMENT AND AUTHORITIES

         A. INDEPENDENT CONTRACTOR AND JURISDICTION

      While the opinion of the Court deals with HUMANA’s status as an agent of

SAHA, it does not address the question of whether HUMANA was an independent

contractor. TEX. CIV. PRAC. & REM. CODE Sec. 101.001(2) defines "employee" to

mean “a person, including an officer or agent, who is in the paid service of a

governmental unit by competent authority, but does not include an independent

contractor, an agent or employee of an independent contractor . . . ”

      The Court’s opinion assumes that HUMANA is an “agent” rather than an

independent contractor. However, this is inconsistent with HUMANA’s position.

HUMANA, like Brown & Gay Engineering, has stated that it is not seeking “official”

immunity, but “governmental” immunity.

    B. THE IMPACT OF BROWN & GAY ENGR., INC. V. OLIVARES

      This court should grant this Motion for Rehearing in light of the recent

decision of Texas Supreme Court in Brown & Gay Engineering, Inc. v. Olivares, NO.

13–0605, April 24, 2015. In that case, the Court clarified the principles to be used

in distinguishing cases when it would be appropriate to extend immunity to an

independent contractor. The opinion of this Court does not address those principles.

      The Supreme Court articulated a set of underlying concerns that justify the

doctrine of sovereign immunity in the modern age. One of them is implication of the

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 2 of 6
governmental purse. It is not enough for the government’s purse to be affected

indirectly. Instead, it is the concern for unexpected liabilities which justifies

sovereign immunity. Therefore, the finances of SAHA are only impacted if Ms.

Mueller is seeking to indirectly impose liability on SAHA.

      While the agreement between SAHA and HUMANA in this case provides for

indemnity to HUMANA in connection with HUMANA's exercise of its powers and

duties under the Agreement, the agreement excepts damages that are attributable to

fraud, willful misconduct, or intentional disregard on the part of HUMANA, or

HUMANA's failure to abide by the Agreement. Ms. Mueller seeks to show that

HUMANA’s conduct amounted to willful misconduct or intentional disregard.

      In spite of inartful pleading (for “benefits denied”) in the damages paragraph

of the active Petition, the action Ms. Mueller has brought against HUMANA is for

extra-contractual damages which have resulted from HUMANA’s bad faith claims

handling conduct. Ms. Mueller does not seek to indirectly impose liability on SAHA.

Therefore, the funds of the governmental entity are not implicated.

      The Supreme Court also articulate a standard by which to judge whether

immunity attaches to a contractor or not:

      In each of these cases, the complained-of conduct for which the

      contractor was immune was effectively attributed to the government.

      That is, the alleged cause of the injury was not the independent action

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 3 of 6
       of the contractor, but the action taken by the government through the

       contractor.

       In the present case, Ms. Mueller seeks to impose liability on HUMANA for its

own conduct, not for its conduct effecting the policies of SAHA. HUMANA denied

Ms. Mueller’s requests for pre-certification of a back surgery on the ground that the

proposed procedure was “experimental.” SAHA had and has no policies concerning

whether a medical procedure is “experimental” apart from what HUMANA created.

       Ms. Mueller does not seek hold HUMANA liable merely for following

SAHA’s directions. Instead, Ms. Mueller seeks to hold HUMANA responsible for

conduct which was outside the scope of its authority, or a bad faith use of that

authority.

       Finally, the fact that the administrative agreement between HUMANA and

SAHA provides that “The Plan Manager does not have discretionary authority or

responsibility in the administration of the plan” should not be the end of the inquiry.

The facts in the record show that, in spite of this boilerplate language, HUMANA did

in fact have wide discretion in its implementation of the plan, and in the interpretation

of its terms.

       It is true that the Supreme Court, in Brown & Gay, cites and discusses Foster

v. Teacher Retirement System, 273 S.W.3d 883 (Tex. App.—Austin 2008, no pet.).

However, Foster is distinguishable from the present case. Like the Olivareses, and

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 4 of 6
unlike Foster, Ms. Mueller does not “effectively seek to recover money from the

government.” Ms. Mueller dismissed SAHA from this case precisely because she is

not seeking to make SAHA pay.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee MUELLER respectfully

requests that this Court grant her Motion for Rehearing, dismiss HUMANA’s appeal

for lack of jurisdiction, or affirm the decision of the Court below, and grant Appellee

such other and further relief to which she may show herself entitled.


                                        Respectfully submitted,
                                                        Digitally signed by: Stephen G.

                                 Stephen                Nagle
                                                        DN: CN = Stephen G. Nagle
                                                        email = sgnagle@lawyernagle.
                                                        com C = US O = Nagle Law Firm

                                 G. Nagle               OU = Attorney
                                                        Date: 2015.06.10 01:42:40 -06'00'


                                        Stephen G. Nagle
                                        State Bar No. 14779400
                                        sgnagle@lawyernagle.com
                                        1002 West Avenue, Suite 100
                                        Austin, TX 78701
                                        (512) 480-0505 - Telephone
                                        (512) 480-0571 - Facsimile
                                        ATTORNEY FOR APPELLEE MUELLER




______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 5 of 6
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4, I certify by my signature above that this

Motion for Rehearing contains 1064 words. This is a computer-generated document

created in Corel Word Perfect, using 14-point typeface for all text, except for footers

which are in 12-point typeface. In making this certificate of compliance, I am relying

on the word count provided by the software used to prepare the document.


                          CERTIFICATE OF SERVICE

      By my signature above, I certify that a copy of the foregoing instrument was

served upon the attorneys of record of all parties to the above cause as indicated

below in accordance with Rule 9.5(b), Tex. R. App. P., on this 10th day of June, 2015.

       Via Electronically Filing

Richard G. Foster
rfoster@prdg.com
Lisa P. Alcantar
lalcantar@prdg.com
Porter, Rogers, Dahlman & Gordon, P.C.
Trinity Plaza II
745 E. Mulberry Ave, Suite 450
San Antonio, Texas 78212




______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Appellee’s Motion for Rehearing - p. 6 of 6
