                                                                                            ACCEPTED
                                                                                       04-14-00752-CV
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                 2/14/2015 12:45:47 AM
                                                                                         KEITH HOTTLE
                                                                                                CLERK

                                         NO. 04-14-00752-CV

                            IN THE COURT OF APPEALS         FILED IN
                       FOR THE FOURTH DISTRICT OF TEXAS
                                                      4th COURT OF APPEALS
                                 AT SAN ANTONIO        SAN ANTONIO, TEXAS
                                                              2/17/2015 12:00:00 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

                     BRIEF 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 Not Requested




Humana vs. Mueller, Brief of Appellee
                        IDENTITY OF PARTIES AND COUNSEL
                                  HUMANA Insurance Company
Appellant

Counsel for Appellant                   Lisa P. Alcantar
                                        State Bar No. 24069284
                                        lalcantar@prdg.com
                                        Richard G. Foster
                                        State Bar No. 07295100
                                        rfoster@prdg.com
                                        Porter, Rogers, Dahlman & Gordon, P.C.
                                        745 E. Mulberry Avenue, Suite 450
                                        San Antonio, Texas 78212
                                        Telephone: (210) 736-3900
                                        Facsimile: (210) 736-1992

Appellee                                Dolores Mueller
                                        Stephen G. Nagle
Counsel for Appellee
                                        State Bar No. 14779400
                                        sgnagle@lawyernagle.com
                                        1002 West Avenue, Suite 100
                                        Austin, TX 78701
                                        (512) 480-0505 - Telephone
                                        (512) 480-0571 - Facsimile




Humana vs. Mueller, Brief of Appellee         -i-
                    TABLE OF CONTENTS
                       ................................................................................
TABLE OF AUTHORITIES .                                                                                  iii

STATEMENT OF THE CASE. ............................................................................... 1

ISSUES PRESENTED. ............................................................................................ 2

I.       STATEMENT OF FACTS. ........................................................................... 2

II.      SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III.     ARGUMENTS AND AUTHORITIES. ........................................................ 7

          A. This Court has no jurisdiction over an interlocutory appeal by
             HUMANA because it is neither a government agency nor a government
             employee..
             employee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
                                                                                                                       7

          B. HUMANA has no derivative immunity from either suit or liability for
             claims arising out of the administration of the SAHA Health Benefits
             Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
                                                                                                                      10

          C.
          C. HUMANA has no derivative immunity from either suit or liability for
             bad faith claims handling.
                              handling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
                                                                                                             15

          D. HUMANA is not exempt from the Insurance Code and has direct
             liability for claims arising out of the administration of the SAHA Health
             Benefits Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
                                                                                                                 16

IV. CONCLUSION............................................................................................ 18
W. CONCLUSION

PRAYER.................................................................................................................
PRAYER                                                                                                                  18

CERTIFICATE OF COMPLIANCE......................................................................
               COMPLIANCE                                                                       20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




Humana vs. Mueller, Brief of Appellee                      -ii-
                         I. FACTUAL
                             FACTUALBACKGROUND
                                     BACKGROUND

      Since
      Since this    an interlocutory
            this is an  interlocutory appeal
                                      appeal from
                                             from an
                                                  an Order
                                                     Order denying
                                                           denying aa Plea
                                                                      Plea to the

Jurisdiction
Jurisdiction of
             of the court below,
                the court below, the allegations
                                     allegations of Plaintiff's
                                                    Plaintiff’s latest
                                                                latest Petition
                                                                       Petition are

accepted as true for purposes
                     purposes of
                              of this
                                 this appeal. Plaintiff’s Third
                                      appeal. Plaintiff's Third Amended
                                                                Amended Petition in

this case was the live pleading at the time when the Plea
                                                     Plea to
                                                          to the
                                                              the Jurisdiction
                                                                  Jurisdiction was heard,

and contains the following:

         2010, DOLORES
      In 2010, DOLORES MUELLER
                       MUELLER developed
                               developedback
                                         back pain
                                              pain and
                                                   and other symptoms that

failed to respond to non-surgical
                     non-surgical treatment. Her treating
                                  treatment. Her  treating doctors
                                                           doctors recommended
                                                                   recommended a

“minimally invasive”
"minimally invasive" spinal decompression surgery. Two different
                                          surgery. Two different neurosurgeons

submitted claims to HUMANA for pre-certification approval of this surgery.

      HUMANA denied
      HUMANA denied pre-certification,
                    pre-certification,and,
                                       and,by
                                            byaa series
                                                  series of
                                                         of at           letters
                                                            at least six letters

spanning the period March 31, 2010, through October 2, 2010, denied coverage for

    proposed surgery.
the proposed           In its
             surgery. In   itsdenials,
                               denials, HUMANA
                                        HUMANA relied
                                               relied upon
                                                      upon the
                                                           the policy
                                                               policy language
                                                                      language

excluding
excluding “Any
          "Any medical treatment,
                       treatment, procedure,
                                  procedure, drug,
                                             drug, biological
                                                   biological product or device

which is experimental, investigational or for research purposes . . .”
                                                                    ."

      At the time and
                  and place
                      place when
                            when HUMANA
                                 HUMANA denied
                                        denied pre-certification
                                               pre-certification of the
                                                                    the proposed
                                                                        proposed

thoracic spinal decompression surgery, the proposed procedure was not, and could

not reasonably have been considered, experimental, investigational or for research

purposes either generally or within the meaning of [the policy] definition.

      At the same time,
                  time, HUMANA
                        HUMANA had
                               had [an
                                    [aninternal]
                                        internal]“Spinal
                                                  "Spinal Decompression
                                                          Decompression Surgery
                                                                        Surgery

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 4 of 21
Walker v. Whatley, 318 S.W.3d 541 (Tex. App.—Beaumont 2010, pet. denied)
................................................................ 9


S
STATUTES
  TATUTES

TEX. C
TEX.   IV. PPRAC.
     CIV.    RAC. &
                  &RREM.
                     EM. CCODE
                          ODE AANN.
                               NN. § 51.014
                                     § 51.014(West
                                              (West2015)
                                                   2015) . . . . . . . . . . . 6, 7, 8, 9

TEX. C
TEX.   IV. PPRAC.
     CIV.    RAC. &&RREM.
                     EM. CCODE
                          ODE AANN.
                               NN. § 101.001(2)
                                     § 101.001(2)(West
                                                  (West2015)
                                                       2015) . . . . . . . . . . . . . 8

TEX. C
TEX.   IV. PPRAC.
     CIV.    RAC. &
                  &RREM.
                     EM. CCODE
                          ODE AANN.
                               NN. § 101.0215
                                     § 101.0215(West
                                                (West2015)
                                                     2015) . . . . . . . . . . . . . . 15

TEX. C
TEX.   IV. P
     Cry.    RAC. &
           PRAC.  & RREM.
                      EM. CCODE
                            ODE AANN.
                                 NN. § §
                                       311.023
                                         311.023(West
                                                 (West 2015)
                                                       2015) . . . . . . . . . . . . . . . 10

TEX. G
TEX.  OVT. CCODE
     GOVT.   ODE AANN.
                  NN. § §
                        311.026
                          311.026(West
                                  (West 2015)
                                        2015) . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. G
TEX.  OVT. CCODE
     GOVT.   ODE AANN.
                  NN. § §
                        2259.037
                          2259.037(West
                                   (West 2015)
                                         2015) . . . . . . . . . . . . . . . . . . . . . 16, 17

TEX. H.
TEX. H. &
        & S.
          S. C ODE AANN.
             CODE   NN. § §312.007(a)
                            312.007(a)(West
                                       (West 2015)
                                             2015) . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. IINS.
TEX.   NS. CCODE
             ODE AANN.
                  NN. § §541.002
                          541.002(West
                                  (West 2015)
                                        2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. IINs.
TEX.   NS. C ODE AANN.
           CODE   NN. § §4151.001
                          4151.001(West
                                   (West 2015)
                                         2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. IINS.
TEX.   NS. CCODE
             ODE AANN.
                  NN. § §
                        4151.002
                          4151.002(West
                                   (West 2015)
                                         2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. INS.
TEx. INS. C ODE AANN.
          CODE   NN. § §4151.006
                         4151.006(West
                                  (West 2015)
                                        2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. L
TEX.  OC. GOVT.
     Loc. GOVT. C ODE AANN.
                CODE   NN. Ch.
                            Ch.172
                                172(West
                                    (West 2015)
                                          2015) . . . . . . . . . . . . . . . . 11, 12, 17

TEX. L
TEX.  OC. GOVT.
     Loc. GOVT. CCODE
                  ODE AANN.
                       NN. § §172.002
                               172.002(West
                                       (West 2015)
                                             2015) .. . . . . . . . . . . . . . . . . . . . 12

TEX. L
TEX.  OC. GOVT.
     Loc. GOVT. C ODE AANN.
                CODE   NN. Ch.
                            Ch.271
                                271(West
                                    (West 2015)
                                          2015) . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. L
TEX.  OC. GOVT.
     Loc. GOVT. C ODE AANN.
                CODE   NN. § §271.152
                               271.152(West
                                       (West 2015)
                                             2015) . . . . . . . . . . . . . . . . . . . . . . 12




______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 1 of 21
                             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


               BRIEF OF APPELLEE DOLORES MUELLER


                        STATEMENT OF THE CASE

      Dolores Mueller works for the San Antonio Housing Authority ("SAHA"), a

local governmental entity that runs subsidized housing programs within the City of
San Antonio. Appellant
             Appellant HUMANA
                       HUMANA administers
                              administers the health insurance benefit program
                                                                       program

which SAHA created for its employees.
                           employees. HUMANA denied certain claims for health
benefits presented by Mueller. HUMANA violated the Insurance Code by making
                      Mueller. HUMANA
    claims decision
the claims decision outside
                    outside the terms of the policy,
                            the terms        policy, relying on undisclosed
                                                                undisclosed and

unreasonable limitations on the medical procedures it would cover.


______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 2 of 21
                            PROCEDURAL HISTORY

      Mueller filed her Original Petition
      Mueller                             against SAHA
                                 Petition against SAHA and HUMANA
                                                           HUMANA on March 30,

2012. (CR
2012.  (CR 11-15).
            11-15). ItItsought
                         soughtdamages
                                damagesfor
                                        fordenial
                                            denial of
                                                    ofclaims
                                                       claims benefits,
                                                               benefits, breach
                                                                         breach of

contract, negligence, and violation of provisions of the Texas
                                                         Texas Insurance
                                                               Insurance Code.
                                                                         Code. In the

course of discovery, Ms. Mueller found out, for the first time, that HUMANA had

gone outside the terms of the health
                              health benefits
                                     benefits policy
                                              policy in
                                                      in order
                                                         order to
                                                                to deny
                                                                   deny her
                                                                        herclaims.
                                                                            claims. As

one consequence
    consequence of that discovery, Ms. Mueller non-suited her claims against SAHA,

and elected to proceed solely against
                              against HUMANA.
                                      HUMANA. (CR 43-49).

      Plaintiff’s Third Amended
      Plaintiff's Third Amended Petition
                                Petition was
                                         was in place at the time
                                                             time when
                                                                  when HUMANA’s
                                                                       HUMANA's

Plea to the Jurisdiction was
                         was heard,
                             heard, on
                                    on September
                                       September19,
                                                 19,2014.
                                                     2014. (CR
                                                           (CR 279-285).
                                                               279-285). The Plea

                   sovereign immunity
(CR 55-66) claimed sovereign immunity for
                                      for HUMANA’s
                                          HUMANA's acts administering the

insurance claims process for SAHA and sought
                                      sought dismissal
                                             dismissal of
                                                       of the
                                                           the lawsuit.
                                                                lawsuit. The Bexar

County Court at Law, the Honorable
                         Honorable Tina
                                   Tina Torres
                                        Tones presiding, denied the plea to the

jurisdiction on October
                October 9,
                        9, 2014.           This appeal
                           2014. (CR 295). This appeal was
                                                       was timely
                                                           timely filed.

                               ISSUES PRESENTED

      Does this Court have jurisdiction
      Does                 jurisdiction of the appeal
                                               appeal of
                                                      of an
                                                         an interlocutory
                                                             interlocutory Order
                                                                           Order


denying a Plea to the Jurisdiction, which is brought by an independent contractor to

a political subdivision of the state?

      Has HUMANA established that it is entitled to sovereign or official immunity

for its claims handling conduct as a Third Party Administrator?


______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 3 of 21
                         I. FACTUAL
                             FACTUALBACKGROUND
                                     BACKGROUND

      Since
      Since this    an interlocutory
            this is an  interlocutory appeal
                                      appeal from
                                             from an
                                                  an Order
                                                     Order denying
                                                           denying aa Plea
                                                                      Plea to the

Jurisdiction
Jurisdiction of
             of the court below,
                the court below, the allegations
                                     allegations of Plaintiff's
                                                    Plaintiff’s latest
                                                                latest Petition
                                                                       Petition are

accepted as true for purposes
                     purposes of
                              of this
                                 this appeal. Plaintiff’s Third
                                      appeal. Plaintiff's Third Amended
                                                                Amended Petition in

this case was the live pleading at the time when the Plea
                                                     Plea to
                                                          to the
                                                              the Jurisdiction
                                                                  Jurisdiction was heard,

and contains the following:

         2010, DOLORES
      In 2010, DOLORES MUELLER
                       MUELLER developed
                               developedback
                                         back pain
                                              pain and
                                                   and other symptoms that

failed to respond to non-surgical
                     non-surgical treatment. Her treating
                                  treatment. Her  treating doctors
                                                           doctors recommended
                                                                   recommended a

“minimally invasive”
"minimally invasive" spinal decompression surgery. Two different
                                          surgery. Two different neurosurgeons

submitted claims to HUMANA for pre-certification approval of this surgery.

      HUMANA denied
      HUMANA denied pre-certification,
                    pre-certification,and,
                                       and,by
                                            byaa series
                                                  series of
                                                         of at           letters
                                                            at least six letters

spanning the period March 31, 2010, through October 2, 2010, denied coverage for

    proposed surgery.
the proposed           In its
             surgery. In   itsdenials,
                               denials, HUMANA
                                        HUMANA relied
                                               relied upon
                                                      upon the
                                                           the policy
                                                               policy language
                                                                      language

excluding
excluding “Any
          "Any medical treatment,
                       treatment, procedure,
                                  procedure, drug,
                                             drug, biological
                                                   biological product or device

which is experimental, investigational or for research purposes . . .”
                                                                    ."

      At the time and
                  and place
                      place when
                            when HUMANA
                                 HUMANA denied
                                        denied pre-certification
                                               pre-certification of the
                                                                    the proposed
                                                                        proposed

thoracic spinal decompression surgery, the proposed procedure was not, and could

not reasonably have been considered, experimental, investigational or for research

purposes either generally or within the meaning of [the policy] definition.

      At the same time,
                  time, HUMANA
                        HUMANA had
                               had [an
                                    [aninternal]
                                        internal]“Spinal
                                                  "Spinal Decompression
                                                          Decompression Surgery
                                                                        Surgery

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 4 of 21
wesiikw.
Westlaw.
                                                                                             Page 11

Not Reported in S.W.3d, 1999 WL 1078697 (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                           (Tex.App.-Austin»

                                                           1998).
C
Only the Westlaw citation is currently             POWERS.
available.                                             *1 Gregorio            appeals from
                                                           Gregorio Garza appeals      from a sum-
                                                   mary judgment
                                                   mary   judgment that
                                                                      that he
                                                                           he take
                                                                               take nothing
                                                                                    nothing byby his
NOTICE: NOT DESIGNATED FOR PUB-                    actions
                                                   actions against   Blue Cross/
                                                             against Blue           Blue Shield
                                                                            Cross/ Blue    Shield of
LICATION. UNDER TX R RAP RULE                      Texas,
                                                   Texas, Inc.,
                                                            Inc., and Group
                                                                       Group Life and Health In-
47.7, UNPUBLISHED OPINIONS HAVE                    surance
                                                   surance Company
                                                              Company ("Appellees").FN'
                                                                          ("Appellees").FNl Garza
                                                                                              Garza
NO PRECEDENTIAL VALUE BUT MAY                      appeals as well from the trial court's denial of
BE CITED WITH THE NOTATION "(not                   his
                                                   his opposing
                                                         opposing motion
                                                                    motion for
                                                                             for partial
                                                                                  partial summary
                                                                                           summary
designated for publication)."                      judgment. We
                                                   judgment.     We will
                                                                      will reverse
                                                                            reverse the
                                                                                     the summary
                                                                                           summary
                                                   judgment recovered by Appellees, affirm the
      Court of
            of Appeals of
                       of Texas, Austin.           trial court judgment denying Garza's motion
        Gregorio GARZA, Appellant,                 for summary
                                                   for   summary judgment,
                                                                    judgment, and and remand
                                                                                        remand the
                                                                                                 the
                     v.                            cause to the trial court.
    BLUE CROSS AND BLUE SHIELD OF
    TEXAS, INC.; and Group Life & & Health                 FN1. Garza alleged
                                                           FNI.           alleged that Group
                                                                                        Group Life
       Insurance Company, Appellees.                       and Health Insurance      Company is
                                                                         Insurance Company       is a
                                                           "wholly
                                                           "wholly owned
                                                                      owned and controlled
                                                                                    controlled sub-
                                                                                                sub-
            No. 03-98-00706-CV.
            No.03-98-00706-CV.                             sidiary of"
                                                                   of Blue
                                                                       BlueCross/
                                                                              Cross/ Blue
                                                                                     Blue Shield
                                                                                           Shield of
                Dec. 2, 1999.                              Texas,
                                                           Texas, Inc.
                                                                    Inc. It appears
                                                                              appears that
                                                                                       that neither
                                                                                             neither
                                                           Appellee denied
                                                           Appellee     denied the the allegation.
                                                                                         allegation.
From the
From  the District
          District Court of
                          of Travis
                             Travis County,
                                    County,                Group
                                                           Group Life
                                                                    Life and
                                                                           and Health
                                                                                 Health Insurance
                                                                                          Insurance
53rd
53rd Judicial
     Judicial District,
              District, No. 95-11137;
                            95-11137; Peter
                                      Peter                Company      issued the
                                                           Company issued        the group
                                                                                      group policy
                                                                                              policy
M. Lowry, Judge Presiding.                                 involved in the present litigation; and,
                                                           the
                                                           the company
                                                                company administers
                                                                            administers aa part
                                                                                             part of
Before
Before Justices
       Justices SMITH,
                SMITH, YEAKEL
                       YEAKEL and
                              and                          that policy for the Board of of Trustees
                                                                                           Trustees
POWERS.FN·
POWERS.FN*                                                 of
                                                           of the Employees Retirement System
                                                           of
                                                           of Texas. Blue Cross/ Blue Shield of
         FN* Before
         FN*   Before John E. Powers,
                                 Powers, Senior
                                          Senior           Texas, Inc., administers for the Board
         Justice
         Justice (retired),  Third Court
                  (retired), Third Court of Ap-            another   part of the policy.
                                                           another part           policy. Garza al-
         peals, sitting by assignment. See Tex.            leged that both insurers,
                                                           leged              insurers, Group Life
         Gov't Code Ann.Ann. §§ 74.003(b)
                                74.003(b) (West
                                          (West            and Health
                                                                Health Insurance
                                                                         Insurance Company
                                                                                     Company and




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 23 of 29
participant. The
participant. The action
                  actionMueller
                         Muellerhas
                                 hasbrought
                                     brought against
                                              against HUMANA
                                                      HUMANA is for
                                                                for extra-
                                                                    extra-

contractual damages which have
                          have resulted
                                resulted from
                                          fromHUMANA’s
                                              HUMANA's bad faith
                                                           faith claims
                                                                 claims handling
                                                                        handling

conduct. HUMANA's
         HUMANA’sconduct
                  conductisisclearly
                             clearlyoutside
                                     outside the
                                             the scope
                                                 scope of its delegated authority.

                    II. SUMMARY
                         SUMMARYOF
                                 OFTHE
                                    THEARGUMENT
                                       ARGUMENT

                         jurisdiction in this Court, under 51.014 of the TEx.
      In order to create jurisdiction                                    TEX. C IV.
                                                                              Civ.

P RAC. &
PRAC.  &RREM.
         EM. CCODE,
              ODE, this appeal
                      this     must
                           appeal mustbebebased
                                           basedupon
                                                 uponananassertion
                                                          assertionof
                                                                   ofimmunity
                                                                      immunity by an

individual who is an officer or employee of the state or a political subdivision of the

       HUMANA isis neither
state. HUMANA      neither aa local
                               local government
                                     government agency
                                                agency nor an employee of such an

entity, and therefore this court has no authority to hear this appeal.

      Sovereign immunity is a judicially
                              judicially created
                                         created doctrine.
                                                 doctrine. Sovereign immunity has

been waived for SAHA for both immunity from suit and liability for claims where a

suit is brought by its employees seeking to resolve disputes over insurance benefits

                   Immunity is
provided by SAHA. Immunity   is waived
                                waived because
                                       because these
                                               these are
                                                     are suits
                                                         suits over
                                                               over proprietary
                                                                    proprietary

functions
functions by
          by a city or its affiliated
                           affiliated agency. Immunity is waived, as well, because
                                      agency. Immunity

these suits arise out of contract claims. Immunity
                                           Immunity for
                                                    for those
                                                         those claims
                                                               claims is
                                                                      is specifically
                                                                         specifically

waived Ch.
waived Ch.271,
           271,TEx.
                TEX.Loc.
                     LOCGOVT.
                         . GOVT.CODE.
                                CODE.

      Even if the functions that HUMANA performs might be cloaked in immunity

if done in good faith, by an
                          an employee
                             employee of
                                      of aaSAHA,
                                           SAHA, HUMANA
                                                 HUMANA does
                                                        does not
                                                             not have
                                                                 have immunity
                                                                       immunity

for its claims handling actions in this case, because HUMANA did not act in good

faith. Further,
       Further, specific
                specific provisions
                         provisions of
                                    of the
                                       the Texas Insurance Code govern actors such

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 6 of 21
   HUMANA who
as HUMANA who are
              are in the "business
                         “business of insurance,"
                                      insurance,” and acting as Third
                                                                Third Party

Administrators. Even
Administrators. Even if an
                        an employee
                           employee of
                                    of the
                                        the State
                                            State might
                                                  might be
                                                        be immune,
                                                            immune, there
                                                                    there is no

immunity for
immunity     private, Third Party
         for private,       Party Administrators
                                  Administrators whose
                                                 whose conduct
                                                       conduct is specifically
                                                                   specifically

regulated by statute.

      While the agreement between SAHA and HUMANA provides for indemnity

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

the Agreement, the agreement excepts damages that are attributable to fraud, willful

misconduct, or intentional
misconduct,    intentional disregard
                           disregard on
                                     on the part of HUMANA,
                                                    HUMANA, or HUMANA's
                                                               HUMANA's failure

                Agreement. SAHA
to abide by the Agreement. SAHA remains
                                remains liable for plan benefits awarded
                                                                 awarded to a

participant, but
participant, but the action Mueller
                            Mueller has brought
                                        brought against
                                                against HUMANA
                                                        HUMANA is     extra-
                                                               is for extra-

contractual damages which have resulted from
contractual damages                     from HUMANA’s
                                             HUMANA's bad faith claims
                                                                claims handling
                                                                       handling

conduct. HUMANA's
         HUMANA’sconduct
                  conductisisclearly
                             clearlyoutside
                                     outside the
                                              the scope
                                                  scope of its delegated authority.

                    III. ARGUMENT
                          ARGUMENTAND
                                  AND AUTHORITIES
                                      AUTHORITIES

A. THIS
   THISAPPEAL
        APPEAL MUST
               MUST BE
                    BE DISMISSED
                       DISMISSED FOR
                                 FOR LACK OF JURISDICTION

                     “jurisdiction to consider
      This court has "jurisdiction    consider immediate
                                                immediate appeals of interlocutory
                                                                     interlocutory

                                                  jurisdiction." Texas A. &
orders only if a statute explicitly provides such jurisdiction.”          & M.
                                                                            M Univ.

System v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

      This appeal has been
                      been taken
                            taken under
                                  under Section
                                        Section51.014
                                                51.014of
                                                       ofthe
                                                          theTEx.
                                                              TEX.Civ.
                                                                   CIV.PRAC.
                                                                        PRAC. &

R EM. CCODE.
REM.    ODE. Section
              Section51.014(a)(5)
                      51.014(a)(5)provides
                                   providesthat
                                            thataa “person”
                                                   "person" may
                                                            may appeal
                                                                appeal from an

interlocutory order of a district court, county court at law, or county court denying a

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 7 of 21
motion for summary
motion     summary judgment
                   judgment “that
                            "that is
                                  is based
                                     based on an assertion
                                                 assertion of immunity
                                                              immunity by an

individual who is an officer or employee of the state or a political
                                                           political subdivision of

    state." [Emphasis added.]
the state.”

      Accordingly, this Court lacks jurisdiction over interlocutory appeals taken by

any person who is not an officer
                         officer or employee
                                    employee of aa qualifying
                                                   qualifying government entity. TEX.
                                                                                 TEX.

C IV. PRAC.
Cw.   PRAC. &
            & RREM.
                EM. CCODE
                     ODE Sec.
                           Sec.101.001(2)
                                101.001(2)defines
                                           defines"employee"
                                                   "employee"totomean
                                                                 mean “a
                                                                      "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 . . . ”"

      In Cen-Tex Child Care, Inc. v Johnson, 339 S.W.3d 734 (Tex. App.—Fort

Worth 2011, no pet.), Cen-Tex was a private entity working under contract for a state

agency. ItIt provided
             provided foster
                      foster home
                             home services
                                  services pursuant
                                           pursuant to a contract with the Department

of Family and Protective
              Protective Services. After
                                   After aa child
                                            child died
                                                  died while
                                                       while in a Cen-Tex foster home,

Johnson filed a wrongful death lawsuit
                               lawsuit against
                                       against Cen-Tex
                                               Cen-Tex and
                                                       and others.
                                                           others. Cen-Tex moved

to dismiss, on the ground that itit had
                                    had immunity.
                                         immunity. The Court of Appeals
                                                                Appeals determined that

it lacked jurisdiction under 51.014(a)(5), because Cen-Texas was not an officer or

employee
employee of the State or any political subdivision
                                       subdivision of the State, but an independent

contractor.

      Similarly, in Methodist Hospitals of Dallas v. Miller, No. 05-11-00955-CV;

2012 Tex. App. LEXIS 5455; 2012 WL 2782820 (Tex. App.—Dallas July 10, 2012,
______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 8 of 21
          several police officers who were
no pet.), several                     were employees
                                           employees of the Methodist
                                                            Methodist Hospital
                                                                      Hospital

System appealed the denial of their Motion for Summary Judgment on the ground of

          Their appeal
immunity. Their appeal was dismissed for lack of jurisdiction, because they failed
                                                 jurisdiction, because

   demonstrate that they were employees
to demonstrate                employees of a state
                                             state or
                                                   or local
                                                       local government
                                                             government entity.
                                                                        entity.

       In Walker
          Walker v. Whatley, 318 S.W.3d 541 (Tex.
                                            (Tex. App.—Beaumont
                                                  App.—Beaumont 2010,
                                                                2010, pet.

denied), a private attorney
denied),           attorney was
                            was sued for actions he had
                                                    had taken
                                                         taken as
                                                               as court-appointed
                                                                   court-appointed

guardian of a person and estate.
                         estate. He sought immunity because of his appointment by

the Court.
the Court. The
            Theappellate
                appellate Court
                          Court ruled
                                 ruled itit did
                                             did not
                                                  nothave
                                                      havejurisdiction
                                                           jurisdiction under
                                                                        under §

51.014(a)(5)), because the guardian was not an agent of the State.

       The present case is different from Klein v. Hernandez, 315 S.W.3d 1 (Tex.

2010). InInthat
            thatcase,
                 case,Klein,
                      Klein,was
                             wasaastudent
                                   studentat
                                          at aa private
                                                private medical
                                                        medical school who worked as

  resident physician
a resident physician at a public
                          public hospital.
                                 hospital. The
                                           The Texas
                                               Texas Supreme
                                                     Supreme Court found that,

pursuantto
pursuant to Section
            Section312.007(a)
                    312.007(a)ofofthe
                                   theTEX.
                                       TEX.H.
                                           H.&& S.
                                                S. CODE,
                                                   CODE, Klein
                                                         Kleinwas
                                                               was aastate
                                                                      state employee
                                                                            employee

for purposes
    purposes of his work at the
                             the public
                                 public hospital.
                                        hospital. The
                                                  The section,
                                                       section, entitled
                                                                entitled "Individual
                                                                         “Individual

Liability,”
Liability," provides: A .. .. .. resident
            provides: A           resident .. .. .. employee
                                                    employee of a medical
                                                                  medical . . . unit . . . is an

employee of a state agency . . . for
                                 for purposes
                                     purposes of determining
                                                 determining the liability, if any, of the

person for the person's
person         person's acts or
                             or omissions
                                omissions while engaged
                                                engaged in the
                                                           the coordinated
                                                               coordinated or

cooperative activities of the unit, school,
                                    school, or
                                            or entity.”
                                               entity." He, therefore, was authorized to

take an interlocutory appeal of the denial of an immunity
                                                 immunity motion
                                                          motion under
                                                                 under 51.014(a)(5).
                                                                       51.014(a)(5).

       There is no similar statute that would give comfort or immunity to HUMANA.
                                                                          HUMANA.

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 9 of 21
B. HUMANA HAS NO DERIVATIVE IMMUNITY FROM EITHER SUIT
OR LIABILITY FOR CLAIMS ARISING OUT OF THE
                                       THE ADMINISTRATION
                                           ADMINISTRATION
OF THE SAHA HEALTH BENEFITS PROGRAM.

      Sovereign immunity, in Texas, was historically a judicially created doctrine.

       first recognized
It was first recognized in
                        in 1847.  The Texas
                           1847. The   Texas Supreme
                                             Supreme Court          Hosner v.
                                                     Court held, in Hosner

DeYoung, 1 Tex. 764, 769 (1847), that no State can be sued in her own court without

her consent and then only in
                          in the
                             the manner
                                 manner indicated
                                         indicated by
                                                   bythat
                                                      thatconsent
                                                           consent...”
                                                                   ..." Consent has

been found in a number of ways. The most
                          ways. The most obvious one is a statutory waiver, but it

has not been the only one.

                         contends that
      HUMANA essentially contends that SAHA in entirely immune from suit over

claims
claims matters,
       matters, and
                and that
                    that it has immunity that is derivative
                                                 derivative of SAHA's
                                                               SAHA’s immunity.
                                                                       immunity.

However, if SAHA were completely
However,              completely immune
                                 immune from            insurance benefits,
                                        from suits for insurance  benefits,

benefits which
benefits which it promised and contracted for with its employees,
                                                       employees, then
                                                                  then Plaintiff
                                                                       Plaintiff would
                                                                                 would

have no remedy at all for denial of her claims for benefits under the health benefits

        That is
policy. That  is an
                 an absurd result. Statutory
                                   Statutory construction
                                             construction rules
                                                          rules provide that an absurd

result should
result shouldbe
              beavoided.
                 avoided.TEX.
                          TEX.Civ.
                              CIV.PRAC.
                                   PRAC. & REM. CCODE,
                                           REM.   ODE, Sec.
                                                        Sec.311.023.
                                                             311.023.Courts
                                                                     Courts must
                                                                            must

avoid construction that leads to absurd results. City of Rockwall v. Houston, 246

S.W.3d 621, 625-26 (Tex. 2008).

      In order for derivative immunity to apply, there must first be immunity on the

part of the government entity. Local
                               Local Government
                                     Government entities are empowered to provide


______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 10 of 21
health and other
health     other insurance
                  insurance benefits
                            benefits to their
                                         their employees
                                                employees by the
                                                              the Texas
                                                                  Texas Political
                                                                        Political

Subdivisions Uniform Group
Subdivisions Uniform Group Benefits
                           Benefits Program,
                                    Program, established
                                             established in
                                                          in Ch.
                                                             Ch. 172
                                                                 172of
                                                                     ofthe
                                                                        theTEX.
                                                                           TEX.

LOC.GOVT.
Loc. GOVT. CCODE.
             ODE. ItIt provides
                       provides that:

                      subdivision .. . . may
      (a) A political subdivision        may provide health
                                                     health . . . coverage
                                                                  coverage for

      political subdivision . . . . employees, . . . .

      (b) The types of coverage
                       coverage that may be
                                         be provided
                                            provided include
                                                     include group health and

      accident, group
      accident,       dental, accidental
                group dental, accidental death
                                         death and
                                               and dismemberment,
                                                    dismemberment, and

      hospital, surgical, and medical expense.

There is no provision in that Code Chapter which clothes any entity in immunity for

payment of benefits contracted for.

      It is also true that there is no specific provision in Ch. 172 saying that a local

           employee may
government employee may sue,
                        sue, in
                             in the event of a dispute, for the benefits which a

political subdivision creates. Nonetheless,
                               Nonetheless,there
                                            therecan
                                                 can be
                                                     be no
                                                        no doubt
                                                           doubt that such a remedy

exists. There
        There isis aa specific
                       specific provision
                                provision which
                                          which waives
                                                waives immunity
                                                       immunity of SAHA for general

contract claims.

      WAIVER
      WAIVER OF IMMUNITY
                IMMUNITY TO SUIT FOR CERTAIN CLAIMS. A local

      governmental entity that is authorized by statute or the constitution to

      enter
      enter into
            into a contract
                   contract and that enters
                            and that enters into   contract subject
                                            into a contract subject to
                                                                    to this

      subchapter waives
      subchapter waives sovereign
                        sovereignimmunity
                                  immunitytotosuit
                                               suit for
                                                     for the purpose of
                                                         the purpose

      adjudicating a claim for breach of the contract, subject to the terms and

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 11 of 21
      conditions of this subchapter.

TEX. LLoc.
TEX.   OC. GOVT.
           GOVT. C ODE Sec.
                 CODE   Sec.271.152.
                             271.152.

                Supreme Court has
      The Texas Supreme       has specifically
                                  specifically held
                                               held that
                                                     that "by
                                                           “by enacting
                                                                enacting section
                                                                         section

271.152, the
271.152, the Legislature
             Legislature intended
                          intended to
                                    to loosen
                                       loosen the
                                              the immunity
                                                  immunity bar
                                                           bar so
                                                               so that     local
                                                                  that all local

government entities that have been given or are given the statutory authority to enter

into contracts shall not be immune from
                                   from suits
                                        suits arising
                                              arising from
                                                      from those  contracts." Ben Bolt-
                                                            those contracts.”

Palito Blanco Consol. Indep. Sch. Dist.
                                  Dist. v.
                                        v.Tex.
                                           Tex.Political
                                               PoliticalSubdivisions
                                                         Subdivisions Prop./Cas.
                                                                      Prop./Cas. Joint

Self-Ins. Fund, 212 S.W.3d 320, 327
                                327 (Tex.
                                    (Tex. 2006)
                                          2006) (internal
                                                 (internal quotations
                                                           quotations omitted).
                                                                      omitted). This

authorizes a claim for benefits, a suit against SAHA.

      If HUMANA has derivative immunity from suit for violations
                                                      violations of the Insurance
                                                                        Insurance

Code in this
Code in this case,
             case, itit would
                        would go
                              go against
                                 againstthe
                                         thepolicy
                                             policyenunciated
                                                    enunciatedininTEx.
                                                                   TEXLoc.
                                                                       . LOCGOVT.
                                                                            . GOVT.CODE
                                                                                   CODE

Ch. 172, which authorized the creation of the program that HUMANA
                                                           HUMANA administered.
                                                                  administered.

      Sec. 172.002. PURPOSE. The purpose of this chapter is to: . . .

      (2) enable the political subdivisions to attract and retain competent and

      able employees by providing them with accident and health benefits

      coverages
      coverages at least equal to those
                                  those commonly
                                        commonly provided
                                                 provided in private
                                                             private industry;
                                                                     industry;

      If State, County and Municipal employees are not allowed the same remedies

under the Insurance Code as employees in the private sector, they are not equal to

those “provided
      "provided in private industry.”
                           industry."



______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 12 of 21
      HUMANA contends
      HUMANA contendsthat
                      that itit seeks
                                seeks sovereign
                                      sovereign immunity. However, what
                                                immunity. However, what it

actually seeks
actually seeks is the immunity
                      immunity that might apply to an
                                                   an individual
                                                       individual employee
                                                                  employee who

performed claims
performed claims functions
                  functionsfor
                            foraa local
                                  local government
                                        governmententity.  That is
                                                   entity. That is "official"
                                                                    “official”

          Official immunity
immunity. Official  immunity applies
                             applies only
                                     only to (1) discretionary acts of individuals (2)

within the scope of official duties for the state, (3) performed in good faith. City of

Lancaster v. Chambers,
Lancaster    Chambers, 883
                       883 S.W.2d
                           S.W.2d 650,
                                  650, 653 (Tex. 1994).
                                       653 (Tex. 1994). HUMANA
                                                         HUMANA has
                                                                has

specifically pleaded
specifically pleaded that
                     that itit did not have discretion,
                                            discretion, but
                                                        but only acted to interpret the

       terms. Further,
policy terms.  Further, the
                         the specific
                              specific allegations
                                       allegations of Plaintiff
                                                      Plaintiff are
                                                                are that the actions
                                                                             actions of

HUMANA were
HUMANA were not
            not taken
                taken in good faith, because they are violations of the Texas

Insurance Code.

      Even if HUMANA
      Even    HUMANA is correct and SAHA has immunity from a lawsuit for

benefits and for violations of the Insurance Code, that immunity does not transfer to

HUMANA. Garza v. Blue
                 Blue Cross
                      Cross & Blue Shield of Tex., Cause No. 03-98-00706-CV;
                            &Blue                            03-98-00706-CV;

1997 WL
1997 WL 1078697
        1078697 (Tex.
                (Tex. App.—Austin
                      App.—AustinDec.
                                  Dec.2,
                                      2, 1999,
                                         1999, no       (mem. op., not
                                               no pet.) (mem.

designated for publication). In Garza, the Plaintiff was an employee of the State of
           for publication).

Texas. Through
Texas.  Through his
                 hisemployer,
                     employer, he
                                hepurchased
                                   purchased Accidental
                                             Accidental Death
                                                        Death and
                                                              and Disability
                                                                  Disability

                 coverage from Blue Cross and Blue Shield of Texas (BCBSTX).
(AD&D) insurance coverage

He was
   was injured
       injured and
               and lost
                    lost the
                          the sight
                              sight in
                                     in one
                                        one eye. BCBSTX denied
                                            eye. BCBSTX denied the
                                                               the claim. Garza
                                                                   claim. Garza

appealed, won at the administrative level, and then sued BCBSTX for violations of

the Insurance Code.

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 13 of 21
      The District Court granted Summary Judgment to BCBSTX on the ground of

immunity. The
immunity. The Court
              Court of Appeals reversed. ItIt wrote,
                                              wrote, concerning
                                                     concerning official
                                                                official immunity

for a private actor, such as Blue Cross and Blue Shield:

      [I]f
      LIUthe
           thepurposes
               purposesof
                        of the
                            the [immunity]
                                [immunity] doctrine
                                           doctrine are
                                                    are not
                                                        not exposed
                                                            exposed to

                            particular function that might be pertinent,
      injury by reason of a particular

                                        [emphasis added.] See Forrester v.
      then the exception cannot apply. [emphasis

      White, 484 U.S. 219, 227 (1988) ("immunity is justified and defined by

          functions itit protects
      the functions      protects and
                                  and serves,
                                      serves, not
                                              not by     person to whom
                                                  by the person    whom it

                            See NF Indust. v. Export-Import Bank, 846 F.2d 998,
      attaches."). .. .. .. See
      attaches.").

      1000-01 (5th Cir. 1988) (Defendant "has made no showing here that its

      duties require
      duties require the
                      the exercise
                           exercise ofofgovernmental
                                          governmental policymaking
                                                        policymaking as
                                                                     as

      distinguished from insurance policy-writing.").

      The present case is distinguishable  from Foster
                          distinguishable from  Foster v.
                                                       v. Teacher
                                                          Teacher Retirement
                                                                  Retirement System,

    S.W.3d 883
273 S.W.3d 883 (Tex.
               (Tex. App.
                     App. Austin
                          Austin 2008). First, Foster
                                 2008). First, Foster did not
                                                          not make
                                                              make claims
                                                                   claims that

Aetna acted outside the contract
                        contract or
                                 or illegally. “Foster does
                                    illegally. "Foster does not allege unlawful acts

            its employees,
by Aetna or its employees, only that Aetna should
                                           should have found her claims
                                                  have found     claims to be

covered
covered under
        under the
               the policy.”
                   policy." Id. at 889. In
                                         In contrast,
                                            contrast, Ms.
                                                      Ms. Mueller's
                                                          Mueller’s claims
                                                                    claims are based

exclusively on the fact that HUMANA violated provisions of the Texas Insurance

Code. Second,
      Second, Foster
              Foster sued
                      sued aa State
                              State agency,
                                     agency, not
                                             not aa local
                                                     local government
                                                           government agency
                                                                      agency whose

authority derives from a home rule city.
______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 14 of 21
C. HUMANA
    HUMANAHAS
           HASNO
               NODERIVATIVE
                  DERIVATIVEIMMUNITY
                             IMMUNITYFROM
                                     FROM EITHER
                                          EITHER SUIT

OR LIABILITY FOR BAD FAITH CLAIMS HANDLING.

      Ms. Mueller’s
          Mueller's claim is not one for contract benefits. Rather, it is a claim that
                                                  benefits. Rather,

HUMANA, as the entity in charge of insurance benefits for SAHA, acted without
HUMANA,

authority and contrary to law - ultra vires. The Texas Supreme Court has held that

there is no immunity for ultra vires acts, because they are outside the scope of the

official's authority. City of El Paso v. Heinrich, 284 S.W.3d
official’s                                             S.W.3d 366
                                                              366 (Tex.
                                                                  (Tex. 2009).
                                                                        2009). If

HUMANA is acting in the stead of the individual who is the Plan Administrator for

SAHA, then they may be sued just as he might have been sued, had he done the same.

         addition, the provision
      In addition,     provision of insurance
                                     insurance benefits
                                               benefits is aa proprietary
                                                               proprietary function.
                                                                            function.

Governmental  functionsare
Governmental functions   aredefined
                             definedin in TEXCiv.
                                        TEx.  . CIVPRAC.
                                                    . PRAC&
                                                          . &REM.
                                                              REM.CODE
                                                                  CODE SSEC.
                                                                         EC. 101.0215,
                                                                              101.0215,

which provides
which provides that
                that the
                      the Tort
                          Tort Claims
                               Claims Act
                                      Act does
                                          does not
                                               not apply
                                                   apply to
                                                          to the liability of
                                                             the liability of a

municipality for damages
                 damages arising
                         arising from
                                 fromits
                                      itsproprietary
                                          proprietaryfunctions.
                                                      functions. Proprietary functions

are those which a municipality may, in its discretion, perform in the interest of the

inhabitants of the municipality. The
inhabitants                      The provision
                                     provisionof
                                               of insurance
                                                  insurance to
                                                             to employees
                                                                employees of
                                                                          of the a city

or its affiliated
       affiliated entities
                  entities is
                           is not
                              not listed
                                  listed in     statute. Therefore
                                         in the statute.  Therefore the
                                                                     the provision
                                                                         provision of

insurance is a proprietary
               proprietary function, and HUMANA
                                         HUMANA has
                                                has no immunity
                                                       immunity at
                                                                at all in this

regard.

      In Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), the Texas Supreme

Court  recognized that
Court recognized   that cities
                        cities have
                               have no
                                    no immunity
                                        immunity for
                                                 for tortious
                                                     tortious conduct related
                                                                      related to a

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 15 of 21
proprietary function. Id.
                       Id. at
                           at 343.
                              343. SAHA
                                    SAHAisisaa creation
                                               creation of
                                                        of the
                                                           the City of San Antonio, and

therefore, logically,
therefore, logically, it also has no immunity
                                     immunity for
                                              for tortious
                                                   tortious conduct
                                                            conduct related
                                                                    related to
                                                                            to proprietary
                                                                               proprietary

functions. The
           Theconduct
               conductfor
                       for which
                           which Mueller
                                 Mueller seeks
                                         seeks is
                                               is tortious,
                                                  tortious, in that it violates specific

statutory guidelines.

D.  HUMANA IS NOT EXEMPT FROM THE INSURANCE CODE AND
HAS DIRECT
HAS DIRECT LIABILITY
            LIABILITY FOR  CLAIMS ARISING
                       FOR CLAIMS ARISING OUT  OF THE
                                           OUT OF THE
ADMINISTRATION OF THE SAHA HEALTH BENEFITS PROGRAM.

      Plaintiff has sued under Chs.
                               Chs. 541
                                    541 and
                                        and 542
                                            542 of
                                                of the
                                                    theInsurance
                                                        InsuranceCode.
                                                                 Code.TEX.
                                                                       TEX.INS.
                                                                            INS.

C ODE Sec.
CODE   Sec.541.002
            541.002defines
                    defines"Person"
                            "Person"as
                                     as“an
                                        "anindividual,
                                            individual, corporation,
                                                        corporation, association, . .

              other legal
. society, or other legal entity engaged                    insurance . .. ."
                                 engaged in the business of insurance      .” The

chapter
chapter then goes on to define
                        define various
                               various unfair
                                       unfair methods
                                              methods of competition
                                                         competition and claims

handling. Plaintiff
handling.  Plaintiff has
                     has sued
                          sued HUMANA
                               HUMANA as aa person
                                             person who
                                                    who has
                                                         has violated
                                                              violated these
                                                                        these

provisions.

      HUMANA contends
      HUMANA contends that
                       that the
                            the Texas
                                Texas Insurance
                                      Insurance Code
                                                Code does
                                                     does not
                                                          not apply
                                                              apply to the

HUMANA’s actions in this, because HUMANA was acting for a self-funded Plan
HUMANA's

created
created by aa local
               local government
                      government entity.
                                  entity.HUMANA
                                          HUMANAcites
                                                  citesTEx.
                                                        TEXGOVT.
                                                            . GOVT.CODE
                                                                    CODE Sec.

2259.037. ItIt provides
               provides that
                         that "The
                              "The Insurance
                                   Insurance Code
                                             Code and other laws of this state relating

to the provision or regulation of insurance do not
                                               not apply
                                                   apply to
                                                          to (1)
                                                              (1) an agreement entered

into under this subchapter;         the proceeds
                subchapter; or (2) the  proceeds of
                                                 of public
                                                    public securities issued under this

             However,the
subchapter." However, theauthority
                         authorityto
                                   to provide
                                      provide Group
                                              Group Benefits
                                                    Benefits Plans
                                                             Plans is
                                                                   is not found in


______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 16 of 21
this section, but in Ch. 172, discussed
                              discussed supra. Tex.
                                               Tex. Govt. Code Sec. 2259.037 merely

creates another mechanism for accomplishing the end set out in Ch. 172, Tex. Loc.

Govt. Code. Further,
            Further, while
                     while aa self-funded
                              self-funded Plan
                                          Plan might not be subject to the Insurance

Code, there is another,
               another, more specific provision of the Texas Codes which brings

administrators such as HUMANA
administrators         HUMANA specifically
                              specifically within
                                           within the
                                                  the provisions
                                                      provisions of the Insurance

Code. That
       ThatisisTEX.
                TEX.INS.
                     INS. C ODE Sec.
                          CODE   Sec.4151.001,
                                      4151.001,which
                                               which provides:
                                                     provides:

      In this chapter:                     meansaa person
                           "Administrator"means
              chapter: (1) "Administrator"         person who, in connection

      with ... health benefits ... adjusts or settles claims for residents of this

      state.

            is an
      There is an exemption
                  exemptionofofsorts,
                                sorts,ininTEX.
                                           TEX.INS.
                                                INS. CODE
                                                     CODE Sec.
                                                          Sec. 4151.002.
                                                               4151.002.

      A person is not an
                      an administrator
                         administrator ifif the
                                             the person
                                                 person is:
                                                         is: . . .. (17) a self-insured

      political subdivision; ...

      There is no exemption for an administrator hired by a self-insured political

subdivision. Rather,
subdivision. Rather,there
                     thereare
                          are specific
                              specific provisions
                                       provisions that
                                                  that the Commissioner of Insurance
                                                                           Insurance

          rules governing
may adopt rules governingAdministrators.
                          Administrators.TEX.
                                          TEXINS.
                                              . INS.CODE
                                                    CODE Sec.
                                                         Sec. 4151.006.
                                                              4151.006.

      Ordinary principles of statutory construction require this result, as well. TEx.
                                                                                  TEX.

GOVT. CCODE
GOVT.  ODE Sec.
             Sec.311.026
                  311.026provides
                          providesthat
                                    that“If
                                         "Ifaageneral
                                               general provision
                                                       provision conflicts
                                                                 conflicts with
                                                                           with a

special or local provision, the provisions shall be construed,
                                provisions shall    construed, if possible, so that effect

is given to both.” In case
            both." In case of an irreconcilable conflict, "the
                                                          “the special or local provision

prevails as an exception to the general provision, unless the general provision is the

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 17 of 21
later enactment and the manifest intent
                                 intent is
                                        is that
                                           that the
                                                 the general
                                                     general provision
                                                             provision prevail.”
                                                                       prevail." Here,

it is possible
      possible to construe the self-funded
                               self-funded Plan as not subject to the Insurance
                                                                      Insurance Code, but

to have the Third Party Administrator
                        Administrator be
                                      be subject
                                          subject to
                                                   to the
                                                       the Code. If, however,
                                                           Code. If, however, that is

considered
considered an irreconcilable conflict,
           an irreconcilable conflict, the  Insurance Code
                                       the Insurance  Code Section
                                                           Section governing
                                                                    governing

Administrators is
Administrators is more
                  more specific
                       specific than
                                than the section authorizing
                                                 authorizing the creation
                                                                 creation of self-

funded insurance plans, and should prevail.



                                VI. CONCLUSION


          is undisputed
      It is   undisputed that
                         that HUMANA
                              HUMANA is neither a government
                                     is neither   government entity
                                                             entity nor
                                                                    nor an

employee
employee of
         of aa government
               government entity. Therefore, its
                          entity. Therefore,  its interlocutory
                                                   interlocutory appeal
                                                                 appeal must be

           Alternatively, HUMANA
dismissed. Alternatively, HUMANA has not conclusively demonstrated
                                                      demonstrated that it is

entitled to either sovereign or official
                                official immunity.
                                         immunity. The County Court's order should

be affirmed, and this case remanded for trial.



                                       PRAYER


      WHEREFORE, PREMISES
      WHEREFORE, PREMISES CONSIDERED,
                          CONSIDERED, Appellee MUELLER respectfully

requests that this Court dismiss HUMANA’s appeal for
                                 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.

______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 18 of 21
                                    Respectfully submitted,
                                                    Digitally signed by: Stephen
                                  Stephe            G. Nagle
                                                    DN: CN = Stephen G. Nagle
                                                    email = sgnagle@lawyernagle.
                                  n G.              com C = US O = Nagle Law
                                                    Firm OU = Attorney
                                                    Date: 2015.02.14 00:17:29 -
                                  Nagle             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, Brief of Appellee - p. 19 of 21
                      CERTIFICATE OF COMPLIANCE
        Pursuant
        Pursuant to
                 to Tex.
                    Tex. R. App. P. 9.4, I certify
                         R. App.           certify by
                                                   by my
                                                      my signature
                                                         signature above that this


Appellant's Brief
Appellant's       contains 4641 words.
            Brief contains      words. This
                                       This is
                                             is aacomputer-generated
                                                   computer-generated document
                                                                      document

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

which are in 12-point typeface. In
                                In making
                                   making this
                                          this certificate
                                               certificate of compliance,
                                                              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
                attorneys of record
                             record of all parties to the above cause as indicated
                                                                         indicated

below in accordance
         accordance with
                    with Rule
                         Rule 9.5(b),
                              9.5(b), Tex.
                                      Tex. R. App. P., on this 13th day of February,
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, Brief of Appellee - p. 20 of 21
                                 NO. 04-14-00752-CV

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

                       HUMANA INSURANCE COMPANY,

                                     APPELLANT,

                                            V.

                                      MUELLER,

                                      APPELLEE.



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

                               Brief of Appellee Mueller

                               Appendix Table of Contents



1.
1     Indemnity language from the Administrative Services Agreement
                                                          Agreement. . . . . . 22
                                                                                22

2.    Garza v. Blue Cross and Blue Shield of Texas..
                                             Texas. . . . . . . . . . . . . . . . . . . 23-29
                                                                                        23-29




______________________________________________________________________________
Humana Ins. Co. vs. Mueller, Brief of Appellee - p. 21 of 21
                                                    ARTICLE XIII
                                                    Hold Harmless

 13.1   The Client agrees to indemnify
                               indemnify and hold the Plan Manager harmless  harmless against
                                                                                         against any
                                                                                                  any and
                                                                                                      and all loss, liability,
        or damage (including payment of       of reasonable attorney's fees) which the Plan Manager may incur by
        reason offailure
               of failure of
                          of the Client or its employees, agents or representatives to abide by the provisions of
        the Plans or this Agreement
                          Agreement or   or to
                                             to administer
                                                administerthe thePlans
                                                                 Plansororassets
                                                                           assetsand
                                                                                  andfunds
                                                                                       fundsofofthe
                                                                                                 the Plans
                                                                                                     Plans in
                                                                                                           in a prudent and
        proper manner; failure of of the Plans or documents describing the Plan prepared  prepared or adopted by the Plan
        sponsor to comply withwith applicable
                                      applicable laws;
                                                    laws; fraud,
                                                            fraud, embezzlement,
                                                                   embezzlement, willful
                                                                                      willful misconduct,
                                                                                               misconduct, or intentional
                                                                                                                 intentional
        disregard on the part of of the
                                     the Client
                                         Client or or its
                                                       its employees,
                                                           employees, agents
                                                                       agents oror representatives;
                                                                                   representatives; disputes concerning
        denials
        denials of benefits
                    benefits or or benefit
                                   benefit payments
                                               payments made madeby by or
                                                                       or at
                                                                           at the
                                                                              the direction
                                                                                   direction of the Client
                                                                                                       Client or the
                                                                                                                   the Plan
                                                                                                                        Plan
        Administrator;
        Administrator; oror actions
                            actionstaken
                                      takenby bythe
                                                  thePlan
                                                      PlanManager
                                                             Manageratatthe
                                                                         thedirection
                                                                             direction of
                                                                                        ofthe
                                                                                           the Client or the Administrator.

 13.2   The Plan Manager
                   Manager agrees
                             agrees to indemnify
                                         indemnify and
                                                     and hold the Client harmless
                                                                          harmless against anyany and all loss, liability,
        or damage (including
                    (including payment
                                payment of  of reasonable
                                               reasonable attorney's fees) which the Client may incur by reason of
        the failure of
                    of the employees,
                           employees, agents
                                         agentsororrepresentatives
                                                    representativesof
                                                                    ofthe
                                                                       the Plan
                                                                           Plan Manager
                                                                                Manager to to abide by this Agreement,
        or fraud, embezzlement,
                  embezzlement, willful
                                  willfulmisconduct
                                             misconductororintentional
                                                             intentionaldisregard
                                                                         disregardononthe
                                                                                       thepart
                                                                                           part of
                                                                                                ofthe Plan Manager or
        its employees, agents, or representatives.
                                   representatives. TheThePlan
                                                            PlanManager
                                                                  Managerwill
                                                                            willnot  beliable
                                                                                 notbe  liableon
                                                                                               on account
                                                                                                   account of
                                                                                                            of actions or
        inaction  undertaken by
        inaction undertaken    by itit in good faith
                                                 faith and
                                                       and performed
                                                            performed in accordance
                                                                            accordance with the provisions
                                                                                                     provisions of this
        Agreement or for the cost of  of benefits under the Plan which are claimed or awarded to a Participant.

 13.3   The obligations under
                        under this
                              this Article
                                   Article XIII
                                           XIII shall
                                                shall continue
                                                      continue beyond
                                                                beyond the
                                                                        the term
                                                                             term of
                                                                                  ofthis
                                                                                     this Agreement
                                                                                          Agreement as
                                                                                                    as to
                                                                                                       to any
                                                                                                          any act
        or omission which occurred during the term of  of this Agreement.


                                                  ARTICLE XIV
                                               Taxes and Assessments

 14.1        tax or other
        If a tax    other assessment, including a premium tax, with respect to the Plan (other than an income
        tax with respect to the fees earned by the Plan Manager) is imposed upon the Plan Manager, the Plan
        Manager
        Manager willwill provide
                         provide written
                                   written notification
                                            notificationtotothe
                                                             theClient
                                                                  Clienttogether
                                                                         togetherwith
                                                                                  withaa copy
                                                                                         copy of
                                                                                              of the
                                                                                                 the tax
                                                                                                     tax bill
                                                                                                         bill or
        assessment within ten (10)
                                ( l 0) business days of
                                                      of receipt.

 14.2   If the Plan Manager pays the tax or assessment, the Client shall reimburse the Plan Manager for any
        amounts
        amounts paid plus reasonable
                           reasonable out-of-pocket
                                       out-of-pocket expenses
                                                     expenses immediately     upon notification
                                                                immediately upon    notification by the Plan
        Manager that the tax has been paid.


                                                   ARTICLE XV
                                                  Defense of Actions

 15.1   The Client and the Plan Manager
                                Manager agree to cooperate with respect to (a) the determination, settlement
        and defense
             defense of
                     of any and
                             and all
                                 all claims
                                      claims for
                                              for benefits
                                                   benefits undertaken
                                                            undertaken by the Plan Manager
                                                                                      Manager pursuant
                                                                                                 pursuant to this
        Agreement, and (b) the settlement ofof and conduct of of a defense against any claim for benefits which
        has been denied,
                  denied, which
                          which may
                                  may include
                                        include attending
                                                  attending hearings   and trials
                                                             hearings and              assisting in securing
                                                                            trials and assisting    securing the
        attendance of
                   of witnesses and giving ofof evidence.




                                                            15
                                                                                                               HIC 000818
                                                                                                               HIC 000818
Humana vs. Mueller, Brief of Appellee                       80
                                                                                                           page 22 of 29
wesiikw.
Westlaw.
                                                                                             Page 11

Not Reported in S.W.3d, 1999 WL 1078697 (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                           (Tex.App.-Austin»

                                                           1998).
C
Only the Westlaw citation is currently             POWERS.
available.                                             *1 Gregorio            appeals from
                                                           Gregorio Garza appeals      from a sum-
                                                   mary judgment
                                                   mary   judgment that
                                                                      that he
                                                                           he take
                                                                               take nothing
                                                                                    nothing byby his
NOTICE: NOT DESIGNATED FOR PUB-                    actions
                                                   actions against   Blue Cross/
                                                             against Blue           Blue Shield
                                                                            Cross/ Blue    Shield of
LICATION. UNDER TX R RAP RULE                      Texas,
                                                   Texas, Inc.,
                                                            Inc., and Group
                                                                       Group Life and Health In-
47.7, UNPUBLISHED OPINIONS HAVE                    surance
                                                   surance Company
                                                              Company ("Appellees").FN'
                                                                          ("Appellees").FNl Garza
                                                                                              Garza
NO PRECEDENTIAL VALUE BUT MAY                      appeals as well from the trial court's denial of
BE CITED WITH THE NOTATION "(not                   his
                                                   his opposing
                                                         opposing motion
                                                                    motion for
                                                                             for partial
                                                                                  partial summary
                                                                                           summary
designated for publication)."                      judgment. We
                                                   judgment.     We will
                                                                      will reverse
                                                                            reverse the
                                                                                     the summary
                                                                                           summary
                                                   judgment recovered by Appellees, affirm the
      Court of
            of Appeals of
                       of Texas, Austin.           trial court judgment denying Garza's motion
        Gregorio GARZA, Appellant,                 for summary
                                                   for   summary judgment,
                                                                    judgment, and and remand
                                                                                        remand the
                                                                                                 the
                     v.                            cause to the trial court.
    BLUE CROSS AND BLUE SHIELD OF
    TEXAS, INC.; and Group Life & & Health                 FN1. Garza alleged
                                                           FNI.           alleged that Group
                                                                                        Group Life
       Insurance Company, Appellees.                       and Health Insurance      Company is
                                                                         Insurance Company       is a
                                                           "wholly
                                                           "wholly owned
                                                                      owned and controlled
                                                                                    controlled sub-
                                                                                                sub-
            No. 03-98-00706-CV.
            No.03-98-00706-CV.                             sidiary of"
                                                                   of Blue
                                                                       BlueCross/
                                                                              Cross/ Blue
                                                                                     Blue Shield
                                                                                           Shield of
                Dec. 2, 1999.                              Texas,
                                                           Texas, Inc.
                                                                    Inc. It appears
                                                                              appears that
                                                                                       that neither
                                                                                             neither
                                                           Appellee denied
                                                           Appellee     denied the the allegation.
                                                                                         allegation.
From the
From  the District
          District Court of
                          of Travis
                             Travis County,
                                    County,                Group
                                                           Group Life
                                                                    Life and
                                                                           and Health
                                                                                 Health Insurance
                                                                                          Insurance
53rd
53rd Judicial
     Judicial District,
              District, No. 95-11137;
                            95-11137; Peter
                                      Peter                Company      issued the
                                                           Company issued        the group
                                                                                      group policy
                                                                                              policy
M. Lowry, Judge Presiding.                                 involved in the present litigation; and,
                                                           the
                                                           the company
                                                                company administers
                                                                            administers aa part
                                                                                             part of
Before
Before Justices
       Justices SMITH,
                SMITH, YEAKEL
                       YEAKEL and
                              and                          that policy for the Board of of Trustees
                                                                                           Trustees
POWERS.FN·
POWERS.FN*                                                 of
                                                           of the Employees Retirement System
                                                           of
                                                           of Texas. Blue Cross/ Blue Shield of
         FN* Before
         FN*   Before John E. Powers,
                                 Powers, Senior
                                          Senior           Texas, Inc., administers for the Board
         Justice
         Justice (retired),  Third Court
                  (retired), Third Court of Ap-            another   part of the policy.
                                                           another part           policy. Garza al-
         peals, sitting by assignment. See Tex.            leged that both insurers,
                                                           leged              insurers, Group Life
         Gov't Code Ann.Ann. §§ 74.003(b)
                                74.003(b) (West
                                          (West            and Health
                                                                Health Insurance
                                                                         Insurance Company
                                                                                     Company and




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 23 of 29
                                                                                                Page 2

Not Reported in S.W.3d, 1999 WL 1078697 (Tex.App.-Austin)
(Cite as:
      as: 1999 WL 1078697 (Tex.App.-Austin))
       Blue
        Blue Cross/
               Cross! Blue
                       Blue Shield
                             Shield of
                                     of Texas,
                                         Texas, official
                                                official immunity
                                                         immunity andand moved
                                                                           moved for summary
                                                                                         summary
        Inc., were
       Inc.,   were insurance
                     insurance companies
                                 companies li-  judgment on that ground.
                                                judgment             ground. Garza moved for
       censed
        censed toto do business in Texas.
                                    Texas. The  partial summary judgment on the ground that
       allegation was not denied. Because of    his
                                                his actions   were not,
                                                     actions were    not, as
                                                                           as a matter
                                                                                  matter ofof law,
                                                                                               law,
       the foregoing
             foregoing allegations
                        allegations and appar-
                                         appar- barred
                                                barred by the doctrine
                                                                doctrine ofof official
                                                                              official immunity.
                                                                                        immunity.
        ent identity of
                     of interests involved, and In a single judgment, the trial court sustained
       to obtain some clarity in ourour discus-
                                        discus- Appellees'   motion and
                                                Appellees' motion     and denied
                                                                            denied Garza's
                                                                                     Garza's mo-
                                                                                               mo-
       sion, we will refer to the two insurers  tion, ordering that he take nothing based on
        collectively as "Appellees."            the doctrine of
                                                              of official immunity.

            THE CONTROVERSY                              Garza   appeals now
                                                         Garza appeals     now on three issues:
                                                                                            issues: (1)
     Appellees   insured Garza,
     Appellees insured      Garza, aa state
                                       state em-
                                              em-    appellees did not establish as a matter of law
ployee, under a group
ployee,            group accidental-death
                           accidental-death and      the elements
                                                          elements ofof official
                                                                        official immunity;
                                                                                 immunity; (2) affi-
                                                                                                   affi-
dismemberment
dismemberment policy policy administered
                               administered by by    davits
                                                     davits filed in support
                                                                      support ofof Appellees'
                                                                                   Appellees' motion
                                                                                                motion
Appellees
Appellees under the provisions
                        provisions of the Texas      are incompetent proof because, among other
Employees Uniform Group Insurance Bene-              things,  they do
                                                     things, they   do not
                                                                        not show
                                                                             show the
                                                                                    the entirety
                                                                                         entirety of a
fits Act. See Tex.
               Tex. Ins.Code Ann.Ann. art. 3.50-2
                                           3.50-2    government contract under which Appellees
(West 1981   & Supp.1999) (the "Act"). After
        1981 &                                       claim official immunity; and (3) there was no
losing his sight in one eye due to an accident,      summary judgment "evidence" showing as a
Garza   made a claim
Garza made       claim for
                         for benefits
                              benefits under the     matter
                                                     matter of lawlaw that
                                                                       that Appellees'
                                                                             Appellees' conduct
                                                                                          conduct in-in-
policy. Appellees
policy.             opposed the claim. Garza
         Appellees opposed                  Garza    volved
                                                     volved government
                                                              government discretion,
                                                                             discretion, an essential
                                                                                              essential
ultimately   prevailed in
ultimately prevailed      in aacontested-case
                                  contested-case     element ofof the defense of
                                                                               of official immunity.
proceedingunder
proceeding    under section
                       section5B 5B of
                                     of the
                                        the Act,
                                              Act,
conducted
conducted by by an administrative
                     administrative law judge
                                            judge        For reasons  that will appear
                                                              reasons that       appear below,
                                                                                         below, we
employed by the State Office of   of Administra-     will sustain Garza's position on the first two
tive
tive Hearings.
      Hearings. Appellees
                 Appellees paidpaid the benefits
                                         benefits    issues; consequently, we need not address his
claimed.
claimed. Garza thereafter sued Appellees in          third issue. We will
                                                                      will discuss
                                                                           discuss separately
                                                                                   separately Gar-
the present cause, seeking additional sums on        za's appellate complaint directed at the denial
allegations of breach of of contract, negligence     of
                                                     of his motion for partial summary judgment.
and gross negligence, and statutory causes of
action
action authorized
         authorized byby the
                          the Texas
                                Texas Insurance
                                       Insurance           DISCUSSION AND HOLDINGS
Code and the Texas Business and Commerce                 The
                                                         The doctrine
                                                                doctrine of
                                                                          of official
                                                                             official immunity
                                                                                       immunity pro-
                                                                                                  pro-
Code.                                                tects the interests of
                                                                          of government
                                                                             government by protect-
                                                     ing its officers and employees from suits and
    Against Garza's causes of
                           of action, Appel-         liabilities based on actions taken by them in
                                                     liabilities based
lees interposed
lees            the affirmative
     interposed the  affirmative defense
                                  defense of         the good-faith
                                                         good-faith performance
                                                                       performance of of discretionary
                                                                                         discretionary




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 24 of 29
                                                                                                   Page 3

Not Reported in S.W.3d, 1999
                           1999 WL 1078697 (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                               (Tex.App.-Austin»
duties coming within the scope of their offi-      independent administrators and managers managers
cial authority.
      authority. See
                 See Kassen
                      Kassen v.v. Hatley,
                                   Hatley, 887     of
                                                   of the programs authorized under this Act.
S.W.2d
S.W.2d 4, 8 (Tex.1994).
               (Tex.l994). Where official im-      The independent administrator so selected
munity protects a government officer or em-        by the trustee shall assist the trustee to in-
ployee, the government entity for which they       sure
                                                   sure the proper
                                                             proper administration
                                                                       administration of the Act  Act
act derives immunity therefrom by operation        and the coverages,
                                                             coverages, services,
                                                                           services, andand benefits
                                                                                             benefits
of the
    the respondeat
         respondeat superior
                      superior principle. See      provided for
                                                   provided   for or authorized
                                                                      authorized by the Act and
Dewitt v.
Dewitt   v. Harris
            Harris County,
                    County, 904
                             904 S.W.2d
                                  S.W.2d 650,
                                            650,   shall
                                                   shall be paid by the trustee
                                                                            trustee ... Also, as an
653
653 54
     54 (Tex.1995);   City of
         (Tex.1995); City   of Houston
                               Houston v.v. Kil-   agency
                                                   agency of the State
                                                                     State of
                                                                            of Texas,
                                                                                Texas, thethe trustee
                                                                                               trustee
burn, 849 S.W.2d 810, 812 (Tex.1993).
                              (Tex. 1993). This    shall have full power and authority to enter
derived immunity is not to be confused with              interagency contracts
                                                   into interagency     contracts with
                                                                                     with anyany de-
                                                                                                   de-
the government entity's sovereign immunity,        partment      the State of Texas. The inter-
                                                   partment of the
which
which protects
         protects the
                  the government
                       government entity
                                     entity di-
                                              di-  agency contracts shall ... define the services
rectly. See Kassen, 887 S.W.2d at 8.               to be performed by the departments for the
                                                   trustee. The trustee
                                                   trustee. The   trustee shall have full power power
    *2 The
         The Board
              Board of Trustees
                         Trustees of the Em-
                                           Em-     and authority to promulgate
                                                                       promulgate all rules, reg-
ployees   Retirement System
ployees Retirement    System of Texas,
                                  Texas, a unit    ulations,
                                                   ulations, plans,
                                                               plans, procedures,
                                                                        procedures, and  and orders
                                                                                                orders
of state government,   acts as "trustee" under
          government, acts                         reasonably    necessary to
                                                   reasonably necessary        to implement
                                                                                   implement and  and
the Act. See Act § 3(a)(11).
                     3(a)(II). Section 4 of
                                          of the   carry out the purposes
                                                   carry            purposes andand provisions
                                                                                      provisions of
Act provides as follows:
                 follows:                          this Act in all its particulars,....
                                                                       particulars, ....

 The administration and implementation
                            implementation of             Act § 4 (emphasis added).
 this Act are vested solely in the trustee. As
 it shall deem necessary to insure the proper             Section   4, on its face,
                                                           Section 4,          face, contemplates
                                                                                      contemplates that
 administration
 administration ofof this Act and the insurance       the trustee, an artificial person, shall exercise
 coverages,
 coverages, services,
              services, and benefits provided         its exclusive
                                                          exclusive power
                                                                       power of of administration
                                                                                    administration and and
 for or authorized by this Act, the trustee, as       implementation       through rulemaking
                                                      implementation through           rulemaking and  and
 an agency ofof the State of
                           of Texas, shall have       through
                                                      through contracts     with others,
                                                                 contracts with    others, namely:
                                                                                             namely: (1)
 full power and authority to hire employees.          contracts
                                                      contracts with
                                                                  with employees;
                                                                        employees; (2)  (2) interagency
                                                                                              interagency
 The
 The duties
       duties of such
                   such employees
                          employees and
                                      and their
                                           their      contracts with other departments of     of the state;
 compensation     shall be determined
 compensation shall                     and as-
                           determined and             and (3)
                                                            (3) competitive-bid
                                                                competitive-bid contracts       with "in-
                                                                                    contracts with
 signed by the trustee. The trustee may, on a         dependent
                                                      dependent administrators
                                                                    administrators and  and managers"
                                                                                               managers"
 competitive
 competitive bidbid basis,
                      basis, contract with
                                        with a        who
                                                      who "act for" and "assist the trusteetrustee to in-
 qualified,  experienced firm
 qualified, experienced     firm of
                                  of group
                                      group in-       sure" proper administration
                                                                      administration of  of the
                                                                                             the Act and
                                                                                                       and
                            administeringfirm
 surance specialists or an administering    firm      the coverages,
                                                      the  coverages, services,
                                                                         services, and
                                                                                     and benefits
                                                                                           benefits pro-
                                                                                                      pro-
 who shall act for
                for the trustee in a capacity as      vided
                                                      vided thereunder.
                                                              thereunder. ItIt is undisputed
                                                                                  undisputed that Ap-  Ap-




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 25 of 29
                                                                                                        Page 4

Not Reported in S.W.3d, 1999 WL 1078697 (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                                      (Tex.App.-Austin»
pellees entered into a contract falling within              cian
                                                            cian Services
                                                                 Services Co.,Co. , 977
                                                                                    977 S.W.2d
                                                                                           S.W.2d 829,829, 832
                                                                                                             832
the
the third class
             class of
                    of contracts,
                        contracts, and and basebase their
                                                      their (Tex.App.-Fort     Worth 1998,
                                                            (Tex.App.-Fort Worth        1998, pet.
                                                                                                 pet. denied);
                                                                                                       denied);
claim ofof official immunity on section 4 of        of the  Knowles v. City of
                                                            Knowlesv.         ofGranbury, 953 S.W.2d 19,
Act and the terms of    of their
                             their contract
                                    contract as inde-inde-  24 (Tex.App.-Fort Worth 1997, pet. denied);
pendent
pendent administrator.
           administrator. It   It is also
                                     also undisputed
                                             undisputed     and Puthoffv.
                                                                Puthoff v. Ancrum, 934 S.W.2d 164, 169
that the trustee
           trustee is aa government
                            government entity entity and
                                                       and  (Tex.App.-Fort Worth 1996, writ denied).          FN2
                                                                                                    denied).FN2
that Appellees
      Appellees are private
                          private corporations
                                    corporations en-
gaged in the business of    of insurance in addition               FN2.
                                                                   FN2. In In relation
                                                                               relation toto the
                                                                                               the doctrine
                                                                                                   doctrine of
to their
    their work
           work as as independent
                       independent administrator
                                          administrator            sovereign immunity,
                                                                                immunity, it has been said
under the contract.                                                numerous times that the government's
                                                                   immunity from
                                                                   immunity      from suit does not extend
                                                                                                         extend
     Because Appellees
     Because     Appellees are  are not
                                      not themselves
                                             themselves            to an
                                                                       an independent
                                                                            independent contractor
                                                                                            contractor doing
                                                                                                          doing
government officers or employees, it appears                       work for the state, but a private
                                                                                                   private per-
at first blush that they could not meet the first                  son contracting
                                                                        contracting with government
                                                                                                government to
prerequisite forfor invocation
                    invocation of the doctrine of                  perform services
                                                                   perform     services shares
                                                                                          shares the govern-
                                                                                                        govern-
official
official immunity;
          immunity; that doctrine is generally  generally          ment's
                                                                   ment's immunity
                                                                             immunity whenwhen the govern-
                                                                                                        govern-
not available to private persons because liti-                     ment directs
                                                                          directs and controls the details
                                                                                                         details
gation against them does not have the effect                       of
                                                                   of his work. See,
                                                                                   See, e.g.,
                                                                                         e.g. , K.D.F.
                                                                                                K.D.F. v..
                                                                                                        v.. Rex,
                                                                                                             Rex,
of frustrating
     frustrating or  or disrupting
                           disrupting government
                                            government             878  S.W.2d      589,   597
                                                                   878 S.W.2d 589, 597 (Tex.l944);(Tex.1944);
functions
functions and discouraging
                  discouraging efficient and ef-                   TRST Corpus
                                                                   TRST     Corpus v. v. Financial
                                                                                           Financial Center,
                                                                                                        Center,
fective
fective public service-the purposes underly-                       1999
                                                                   1999 Tex.App.
                                                                              Tex.App. LEXIS   LEXIS 5826   5826
ing the doctrine. See WyattWyatt v. Cole, 504 U.S.                 (Tex.App.-Houston
                                                                   (Tex.App.-Houston [14th   [14th Dist.]
                                                                                                     Dist.] Au-
158,
158, 168
       168 69 69 (1992).
                  (1992). But But itit isissometimes
                                              sometimes            gust
                                                                   gust 5,5, 1999);       Lyons v.
                                                                                1999); Lyons       v. Lindsey
                                                                                                        Lindsey
necessary
necessary or convenient for government en-                         Morden Claims
                                                                   Morden      Claims Management,
                                                                                          Management, 958
tities
tities to contract
            contract with
                        with private
                                 private persons
                                             persons to            S.W.2d
                                                                   S.W.2d 86,  86, 91
                                                                                    91 (Tex.App.-El
                                                                                         (Tex.App.-El Paso  Paso
perform duties
perform    duties that the government
                                government entities
                                                  entities         1998), motion
                                                                             motion forfor rehearing
                                                                                             rehearing over-
                                                                                                           over-
are legally
     legally required
               required to perform,
                               perform, perhaps by                 ruled, 985
                                                                            985 S.W.2d
                                                                                  S.W.2d 86 (1999);
                                                                                                 (l999); Gon-
the terms ofof a statute or a court order. In those                zales v.
                                                                   zales   v. Heard,
                                                                                Heard, Goggan,
                                                                                          Goggan, BlairBlair &  &
exceptional     circumstances the
exceptional circumstances           the private
                                           private con-            Williams, 923  923 S.W.2d
                                                                                        S.W.2d 764,  764, 766766
tracting parties may be entitled to invoke the                     (Tex.App.-Corpus
                                                                   (Tex.App.-Corpus ChristiChristi 1996,
                                                                                                     1996, writ
doctrine
doctrine of official
               official immunity.
                          immunity. See   See e.g.,
                                                e.g., Ea-          denied); Perser
                                                                               Perser v.
                                                                                       v. City
                                                                                           City ofofArlington,
                                                                                                     Arlington,
gon v. City ofofElk City, 72 F.3d 1480, 1489     148990 90         738 S.W.2d 783, 784 (Tex.App.-Fort
(10th
(lOth Cir.1996);        Williams v. O'Leary,
         Cir.1996); Williams               O'Leary, 55             Worth 1987, writ denied).
                                                                   Worth                  denied). One deci-
F.3d 320,
F.3d   320, 323
              323 24 (7th(7th Cir.1955).
                                Cir.l955). This This ex-
                                                       ex-         sion, Bennack Flying
                                                                                     Flying Service
                                                                                                Service v.
                                                                                                         v. Bal-
ception to the general rule is the basis of de-                    boa, 1999
                                                                          1999 Tex.App.
                                                                                   Tex.App. LEXISLEXIS 47574757
cision in Guerrero
            Guerrero v. v. Tarrant County Morti-                   (Tex.App.-Corpus
                                                                   (Tex.App.-Corpus Christi Christi June
                                                                                                      June 24,24,




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 26 of 29
                                                                                                            Page 5

Not Reported in S.W.3d, 1999     1999 WL 1078697 (Tex.App.-Austin)
                                                          (Tex.App.·-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                                      (Tex.App.-Austin»
         1999),
         1999), appears
                   appears to to apply these sover-             obligations
                                                                obligations and and rights
                                                                                     rights asas independent
                                                                                                  independent ad-ad-
         eign-immunity          distinctionsin
         eign-immunity distinctions             in the
                                                     the        ministrator in the resulting contract,
                                                                                                  contract, he does
         context
         context of an    an official-immunity
                              official-immunity de-             not swear that the attached pages set forth the
         fense.                                                 entirety
                                                                entirety of Appellees' obligations
                                                                                            obligations and rights
                                                                 under the resulting contract, if  if we understand
     *3 We
         We turn then then toto determine
                                 determine whether
                                               whether          correctly the tenor of of his affidavit.
Appellees
Appellees established
              established the  the aforesaid
                                    aforesaid excep-
                                                excep-
tion as a matter of  of law, which they claim by                         FN3.
                                                                         FN3. In his  his motion
                                                                                           motion for for summary
                                                                                                           summary
citation to Guerrero,
              Guerrero, Knowles, and Puthoff.                            judgment, Garza
                                                                         judgment,     Garza pointed
                                                                                                pointed out these
                                                                                                               these
We conclude
We    conclude the summary
                         summary judgment proof                          omissions
                                                                         omissions fromfrom the verified
                                                                                                    verified copies,
                                                                                                             copies,
fails in that regard.                                                    stating
                                                                         stating that
                                                                                   that the omission
                                                                                              omission maymay have
                                                                                                                have
                                                                         been intentional because the contract
     Appellees' contract with the trustee is not                         actually
                                                                         actually arrived
                                                                                    arrived at by Appellees
                                                                                                      Appellees and
                                                                                                                 and
found in the
found        the summary
                   summary judgment
                                judgment record.F"
                                             record.FN3                  the       trustee       covered        only
The record does does include
                       include verified
                                  verified fragments
                                            fragments                    health-benefit claims
                                                                         health-benefit    claims andand stated that
of
of two other documents. The first is a copy of                           Appellees were
                                                                         Appellees     were "independent
                                                                                               "independent con-con-
a "Request for Proposal" issued by the Em-                               tractors" whose employees would not
ployees Retirement
ployees    Retirement SystemSystem of Texas,
                                          Texas, per-
                                                   per-                  be considered employees of the State
taining
taining toto aa proposed
                  proposed contract
                                contract toto provide
                                               provide                   of Texas
                                                                             Texas or or the
                                                                                          the Employees
                                                                                               Employees Retire-
                                                                                                             Retire-
services
services as an   anindependent
                       independent administrator
                                        administrator                    ment System of   of Texas. Garza did not,
under section 4 of the Act. The document is                              however, file
                                                                         however,     file in the summary
                                                                                                    summary judg-
verified
verified by by anan affidavit
                     affidavit to to which
                                      which itit is
                                                 is at-
                                                      at-                ment    record aa verified
                                                                         ment record         verified copy
                                                                                                        copy of the
                                                                                                                 the
tached.   The first
tached. The       first twenty-six      pages of the
                         twenty-six pages            the                 entire
                                                                         entire contract,      the "Request
                                                                                   contract, the      "Request forfor
document are omitted from the verified copy,                             Proposal," or Appellees' response. He
however, and the affiant's oath extends only
however,                                                                 stated,
                                                                         stated, however,     that the contract
                                                                                  however, that          contract it-
to the
    the pages
         pages attached
                  attached to his his affidavit.
                                       affidavit. The
                                                   The                   self                  document."
                                                                         self was a "public document."
record also contains what is represented to be
a copy of Appellees' response to the "Request                        In sum,
                                                                        sum, thethe summary
                                                                                     summary judgment
                                                                                                 judgment record
                                                                                                              record
for Proposal." According
                    According to  to the affiant who            does not establish directly (by a verified copy
verified   the attached
verified the     attached copy,
                             copy, it isis Appellees'
                                            Appellees'          of the contract itself) nor indirectly
                                                                                                indirectly (by ref-
response
response to to the "Request for Proposal"
                                       Proposal" and            erence
                                                                erence to to the
                                                                              the proposal
                                                                                    proposal and
                                                                                               and response)
                                                                                                      response) the
                                                                                                                 the
was accepted
was   accepted by   by the
                        the System
                             System as as a basis
                                              basis for
                                                     for        complete terms
                                                                            terms of the contract made by Ap-
their
their resulting      contract. The
       resulting contract.        The copy
                                        copy of thisthis        pellees and the trustee whereunder the former
document
document also also appears
                     appears to to be
                                   be only
                                       only aa part
                                                part of         acts as
                                                                      as independent
                                                                          independent administrator.
                                                                                          administrator. Because
                                                                                                            Because
Appellees' response.
Appellees'     response. And And while
                                   while the affiant
                                                affiant         of this deficiency
                                                                         deficiency in the record,
                                                                                               record, one
                                                                                                         one cannot
                                                                                                              cannot
declares   that the copy sets
declares that                  sets forth
                                     forth Appellees'
                                            Appellees'          determine
                                                                 determine as as aa matter
                                                                                    matter of law the nature
                                                                                                           nature or




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 27 of 29
                                                                                                      Page 6

Not Reported in S.W.3d, 1999 WL 1078697 (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                                   (Tex.App.-Austin)
relevancy
relevancy of  of Appellees'      duties under
                   Appellees' duties     under the
                                                 the that
                                                     that any
                                                            any ofof their
                                                                       their functions
                                                                              functions as  as independent
                                                                                                independent
contract, which of them are governmental in          administrator
                                                     administrator are   are pertinent
                                                                              pertinent to to these
                                                                                               these allega-
                                                                                                      allega-
nature and represent duties that the trustee is      tions; much less have they shown that these
 legally required
legally  required to  to perform,
                         perform, or whether the     functions
                                                     functions are are functions
                                                                        functions thethe trustee
                                                                                         trustee was itself
trustee  retained a duty to perform itself any
trustee retained                                     legally required to perform. In these circum-
particular duties.                                   stances,       cannot be
                                                     stances, it cannot       be said as
                                                                                       as a matter of law
                                                     that Appellees
                                                            Appellees established
                                                                          established their
                                                                                          their affirmative
                                                                                                 affirmative
     Given the foregoing
                   foregoing omissions from the      defense of of official immunity. See NF Indust.
summary judgment record one cannot know              v.
                                                     v. Export
                                                          Export Import
                                                                      Import Bank,
                                                                                Bank, 846  846 F.2d
                                                                                                  F.2d 998,
                                                                                                         998,
whether the purposes of the official immun-          1000-01
                                                     1000-01 (5th  (5th Cir.1988)
                                                                          Cir.1988) (Defendant
                                                                                        (Defendant "has  "has
ity doctrine   are at risk by reason of
     doctrine are                        of Garza's
                                            Garza's  made no showing here that its duties require
causes
causes of action.
            action. And if the purposes of the       the exercise
                                                           exercise of of governmental
                                                                           governmental policymaking
                                                                                              policymaking
doctrine are not exposed to injury by reason         as
                                                     as distinguished
                                                            distinguished from  from insurance
                                                                                         insurance poli- poli-
of a particular
      particular function
                    function that might be perti-    cy-writing.").
                                                     cy-writing. ").
nent, then the
nent,         the exception
                    exception cannot
                                cannot apply.
                                        apply. See
Forrester v. White,
                White, 484 U.S. 219, 227 (1988)           *4 We hold accordingly
                                                                           accordingly and reverse the
( "immunity
   "immunity is justified and defined
                                    defined by the   summary       judgment that
                                                     summary judgment           that Garza take nothing
                                                                                                     nothing
functions it protects
               protects andand serves,  not by the
                                serves, not          by his actions against Appellees.
person to whom it attaches."). Moreover, the
immunity     attaches to
immunity attaches         to private
                             private persons
                                      persons with
                                               with       There     remains the
                                                          There remains        the issue
                                                                                    issue of whether
                                                                                                whether the
respect to only those acts for which the gov-        trial court erred
                                                     trial           erred in
                                                                            in denying
                                                                                denying Garza's
                                                                                            Garza's motion
                                                                                                      motion
ernment entity would have been immune had            for summary judgment.
it performed
    performed themthem directly
                         directly instead
                                   instead of con-
                                               con-
tracting
tracting for
           for their
                 their performance
                         performance by private
                                            private       The
                                                          The first
                                                                 first ground     urged by
                                                                        ground urged       by Garza
                                                                                                Garza in his
persons. See Eagon,
                Eagon. 72 F.3d at 1489.              motion for summary judgment was           was that Ap-
                                                     pellees were not, as a matter of       of law, entitled
     Notwithstanding any
     Notwithstanding        any deficiency
                                 deficiency min the  to invoke
                                                         invoke the the official-immunity
                                                                         official-immunity defense be-
summary judgment record, it appears that all         cause they were not    not government
                                                                                 government employees
                                                                                                  employees
of Garza's causes of action pertain, on their        or officers.
                                                          officers. What
                                                                       What we we have
                                                                                     have said
                                                                                             said above
                                                                                                   above in in
face at least, to Appellees' responsibilities as     connection with Appellees' opposing motion
Garza's
Garza's insurer-that
             insurer-that Appellees
                                Appellees failed
                                              failed is sufficient
                                                         sufficient to demonstrate
                                                                          demonstrate that Garza was
promptly
promptly to to payor
                pay or settle his claim after lia-   not entitled to judgment as a matter of       of law on
bility had become reasonably
bility                  reasonably clear and that    this ground.
                                                           ground. The record simply does not jus-
they engaged
       engaged in unfair or deceptive
                                 deceptive acts or   tify a determination
                                                              determination as   as a matter of law law that
                                                                                                          that
practices
practices inin the business
                      business of
                                of insurance.
                                    insurance. Ap-   the exception to the general rule does or does
pellees have not shown,
                      shown, as a matter
                                     matter of
                                            oflaw,
                                                law, not apply.



             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 28 of 29
                                                                                                      Page 7

Not Reported in S.W.3d, 1999     1999 WLWL 1078697
                                              1078697 (Tex   .App.-Austin)
                                                         (Tex.App.-Austin)
(Cite as: 1999 WL 1078697 (Tex.App.-Austin))
                                      (Tex.App.-Austin)
                                                                   We
                                                                   We hold    the trial
                                                                        hold the  trial court did not
                                                                                        court did  not err
                                                                                                        err in
                                                                                                            in
    Garza     urged in his
    Garza urged           his second
                                second ground
                                           ground that
                                                    that       denying Garza's motion for partial summary
there
there was "no "no evidence"
                   evidence" that that governmental
                                        governmental           judgment.
discretion,
discretion, an an essential    element of the offi-
                  essential element
cial-immunity defense,
                  defense, "was involved in the                    For the reasons
                                                                   For       reasons given,
                                                                                      given, we reverse
                                                                                                  reverse the
                                                                                                           the
acts
acts made
      made the basisbasis ofof plaintiffs
                                 plaintiffs petition,
                                               petition,       judgment recovered by Appellees, affirm the
which involved negligence and other torts in                   denial of
                                                                      of Garza's motion for partial summary
the business of insurance." He contends now                    judgment, and
                                                               judgment,   and remand
                                                                                remand the
                                                                                        the cause
                                                                                            cause to the trial
that the record contains no such evidence and                  court.
the trial court erred because it was required,
in this state
         state ofof the
                     the record,
                          record, to to grant
                                         grant Garza's
                                                Garza's        Tex.App.-Austin,1999.
motion. See Tex.R. Civ. P. 166a(i).166a(i).                    Garza
                                                               Garza v.v. Blue
                                                                          Blue Cross
                                                                                 Cross and
                                                                                        and Blue
                                                                                             Blue Shield
                                                                                                    Shield of
                                                               Texas, Inc.
    We are not prepared to say, as a matter of                 Not Reported in S.W.3d, 1999
                                                                                          1999 WL 1078697
                                                                                                     1078697
law,
law, that none of the    the duties
                               duties evidently
                                         evidently re-         (Tex.App.-Austin)
quired ofof Appellees as independent adminis-
trators   "involved" acts
trators "involved"        acts made
                                 made the the basis
                                               basis of        END OF DOCUMENT
Garza's    causes of action.
Garza's causes          action. For example,
                                         example, the
"Request
"Request for for Proposal"
                  Proposal" and  and Appellees'
                                       Appellees' re-
sponse thereto, although fragmentary, set out
certain
certain duties
          duties Appellees
                   Appellees were  were required
                                           required to
perform in connection
perform         connection withwith contested-case
                                       contested-case
proceedings
proceedings such such as as that
                             that which
                                    which preceded
                                              preceded
payment of Garza's claim. claim. The verified cop-
ies of
    of these
        these documents,
                documents, whilewhile notnot evidence
                                              evidence
sufficient to establish the entirety of Appel-
lees' contract with the trustee, are some evi-
dence
dence ofof Appellees'
             Appellees' duties
                            duties as as independent
                                          independent
administrator.
administrator. One cannot say with assurance
that
that Appellees'
      Appellees' duties
                      duties inin connection
                                    connection withwith
Garza's
Garza's contested-case
            contested-case proceeding
                                   proceeding had   had
nothing to do with the delays in payment of
which he complains in his petition. Evidence
justifying a conclusion
               conclusion of that that kind
                                        kind is not to
be found in the summary judgment record.




             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Humana vs. Mueller, Brief of Appellee                              page 29 of 29
