received - 5th Court of Appeals

Transcription

RECEIVED
c~JR\~RPJ&s
CAUSE NO. 05-11-00488-CV
S£P 1 5 20\\
IN THE COURT OF APPEALS
COURT OF APPEALS
L\SASt~~ir~\CTFIFTH DISTRICT COURT OF APPEALS
SEP 13 2011
LISA MATZ
ClERK, 5th DISTRICT
CLERK.
DALLAS, TEXAS
SHELTER MUTUAL INSURANCE COMPANY
Appellants,
vs .
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DALLAS COUNTY HOSPITAL DISTRICT
d/b/a PARKLAND HEALTH & HOSPITAL SYSTEM
Appellees .
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On appeal from the 14th District Court,
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Dallas County, Texas
Trial Court Cause No. DC-1 0-10499
The Hon. Eric Moye, Judge Presiding
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APPELLANT'S BRIEF
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Jeremy W. McKey
State Bar No. 24053353
Ekvall & Bynre, L.L.P.
4450 Sigma
Suite 100
Dallas, Texas 75244
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
ATTORNEYS FOR APPELLANT
Oral Argument is Requested
CAUSE NO. 05-11-00488-CV
FIFTH DISTRICT COURT OF APPEALS
DALLAS, TEXAS
Appellants,
vs.
Appellees.
Trial Court Cause No. DC-10-10499
APPELLANT'S BRIEF
Jeremy W. McKey
4450 Sigma
Suite 100
Dallas, Texas 75244
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
Oral Argument is Requested
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................ i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
IDENTITY OF THE PARTIES AND COUNSEL ................................... iii
STATEMENT OF THE CASE .................................................. vi
ISSUES PRESENTED FOR REVIEW ............................................ vi
STATEMENT OF JURISDICTION .............................................. vi
REQUEST FOR ORAL ARGUMENT ............................................ vi
APPELLANT'S BRIEF ......................................................... 1
STATEMENT OF FACTS ...................................................... 2
SUMMARYOFTHEARGUMENT .............................................. 2
ARGUMENT AND AUTHORITIES .............................................. 3
REPLY POINT ONE:
THE TRIAL COURT ERRED BY DENYING APPELLANT'S SPECIAL APPEARANCE ....... 3
PRAYER .................................................................... 7
CERTIFICATE OF SERVICE ................................................... 8
APPENDIX .................................................................. 9
TABLE OF AUTHORITIES
CASES
Guardian Royal Exch. Assurance, Ltd. v. English China,
815 S.W.2d 223, 230-231 (Tex. 1991) ................................. 3, 4, 5, 6
Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex. App.-Dallas 1994, pet. denied) ........ 3
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199,200 (Tex. 1985) .................... 4
U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex. 1977) ........................ 4
STATUTES
TEX. CIV. PRAC. & REM. CODE§ 51.014(a)(7) ...................................... vi
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IDENTITY OF THE PARTIES AND COUNSEL
Appellee supplements the identity of the parties and counsel from Appellant's Brief only to
clarify what Appellants have filed.
APPELLANT:
Appellant in this proceeding is Shelter Mutual Insurance Company, a Missouri based casualty
and mutual insurance company. are Jose A. Perez and Nancy C. Perez. Counsel for Appellant is:
Counsel for Appellee is:
Jeremy W. McKey
4450 Sigma road, Suite 100
Dallas, Texas 75244
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
APPELLEE:
Appellee is Dallas County Hospital District d/b/a Parkland Health & Hospital System.
Appellee is the Plaintiff in the trial court proceeding and is represented by:
Parul Das
Douglas Turek
TUREK DEVORE, P.C.
1201 Lake Woodlands Drive, Suite 4026
The Woodlands, Texas 77380
(281) 296-6920
Fax: (281) 296-0733
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OTHER PARTIES
There are numerous other parties to the trial court proceedings who are not a party to this
appeal. They are as follows:
Defendant Allstate Property and Casualty Insurance Company
Jacquelyn Chandler
Bar No. 24001866
Sean A. Clemmensen
Bar No. 24065053
THOMPSON, COE, COUSINS & IRONS, L.L.P.
700 N. Pearl Street, 25th Floor
Dallas, TX 75201
(214) 871-8200
Fax: (214) 871-8209
Defendant Travelers Casualty Insurance Company
William Lance Lewis
SBN: 12314560
Marcie L. Schout
SBN: 24027960
QUILLING, SELANDER, COMMISKY & LOWNDS
2001 Bryan Street, Suite 1800
Dallas, TX 75201
(214) 871-2100
Fax: (214) 871-2111
Defendant State Farm Mutual Automobile Insurance Company
Courtney N. Kano
SBN: 24041221
SUZANNE I. CALVERT & ASSOCIATES
900 Jackson, Suite 700
Dallas, TX 75202
(214) 748-3831
Fax: (214) 748-7905
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Defendant AAA Texas County Mutual Insurance Company
Carlos A. Balido
Bar No. 01631230
WALTERS, BAUDO & CRAIN, L.L.P.
Founders Square
900 Jackson Street, Suite 600
Dallas, TX 75202
(214) 749-4805
Fax: (214) 760-1670
Defendant National American Insurance Company
Karl W. Koen
24031970
GRAU KOEN, PC
2711 N. Haskell Ave., Suite 2000
Dallas, TX 75204
(214) 521-4145
Fax: (214) 521-4320
Defendant Progressive County Mutual Insurance Company
John C. Nohinek
SBN: 00794379
LAW OFFICES OF JOHN C. NOI-IINEK
501 W. George Bush Freeway, Suite 310
Richardson, TX 75080
(972) 813-1923
Fax: (972) 231-9569
Defendant Old American County Mutual Fire Insurance Company
Richard J. Byrne
SBN: 03566435
EKV ALL
& BYRNE, LLP
4450 Sigma Road, Suite 100
Dallas, Texas 75244
(972) 239-0839
Fax: (972) 960-9517
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STATEMENT OF THE CASE
Appellee sued Appellant for a hospital lien that allegedly was not satisfied. Appellee
allegedly provided treatment to Norma Salazar following an automobile accident that she was
involved in. The accident occurred in Oklahoma. Everything concerning that accident and the
subsequent insurance claim presented on behalf of Ms. Salazar occurred in Oklahoma. Appellant
was the alleged tortfeasor's liability insurance carrier, which was an Oklahoma issued policy.
Appellant settled the claim against its insured. Appellee alleges to have had valid hospital lien and
sued Appellant. Appellant timely filed a Special Appearance contesting jurisdiction as it is not a
Texas resident and is not amenable to suit in Texas for this claim.
ISSUES PRESENTED FOR REVIEW
APPELLANT'S ISSUE NUMBER ONE:
Appellants' issue is that the trial court erred when it denied its Special Appearance.
Appellant is not amenable to suit in Texas for this claim as it does not have systematic and
continuous contacts with Texas.
STATEMENT OF JURISDICTION
The Court has jurisdiction of this case pursuant to TEX. Civ. PRAC. & REM. CODE §
51.014(a)(7).
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument. Oral argument could aide and assist the Court in reaching
the correct legal conclusions to the issue presented in this appeal. Appellant, therefore, respectfully
requests the Court to set this case for oral argument with notice to the parties.
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CAUSE NO. 05-11-00488-CV
FIFTH DISTRICT COURT OF APPEALS
DALLAS, TEXAS
Appellants,
vs.
Appellees.
Trial Court Cause No. DC-1 0-10499
APPELLANT'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant, Shelter Mutual Insurance Company ("Shelter"), Defendant in
the trial court proceedings, and submits this its Appellant's Brief.
STATEMENT OF FACTS
This lawsuit concerns an alleged valid and unsatisfied hospital lien that Appellee, Dallas
County Hospital District d/b/a Parkland Health & Hospital System ("Parkland") filed with the county
clerk for treatment provided to an automobile accident victim named Norma Salazar. (CR 5-11 ).
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Ms. Salazar allegedly sustained injuries following an automobile accident that occurred in the state
of Oklahoma on or about December 15, 2008. (CR 5-11; 12-28). Ms. Salazar allegedly received
medical treatment from Parkland following this accident. (CR 5-11).
Following this accident, Ms. Salazar hired an attorney from McAlester, Oklahoma who
presented a claim on her behalf against Shelter's insured, Rachel McCollum, the alleged tortfeasor
of the automobile accident. (CR 12-28). Ms. Salazar's presented her claim to Shelter at its branch
office in Tulsa, Oklahoma. (CR 12- 28). Tina Watson with Shelter negotiated a settlement of Ms.
Salazar's claim. (CR 12-28). Ultimately, the settlement called for payment to Ms. Salazar in the
amount of$47,500. (CR 12-28). All activities associated with this claim occurred in Oklahoma.
(CR 12-28).
Shelter has no connection to Texas whatsoever from this claim. Everything from the parties
to the accident, to the attorneys, to the adjuster and the applicable insurance policy are based out of
Oklahoma. (CR 21-28). In fact, Shelter does not even issue or write insurance policies in Texas.
(CR 19-21). Shelter does not have any employees, property, agents or offices in the State ofTexas.
(CR 19-21). Shelter ceased writing policies in Texas over thirty-three (33) years ago in 1977. (CR
20).
After being served, Shelter timely filed it Special Appearance asserting that it is not amenable
to suit in Texas in connection with the occurrence that forms the basis of this suit. (CR 12; 45). The
trial court denied Shelter's Special Appearance (CR 58-59). Shelter then timely perfected this
appeal. (CR 61).
SUMMARY OF THE ARGUMENT
Shelter is not amenable to suit in Texas courts in this case. There is not specific jurisdiction
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because any contacts that Shelter may have with Texas do not relate or stem from any thing that
touches or concerns this lawsuit. Moreover, Shelter does not have continuos and systematic contacts
with Texas; therefore, Texas courts do not have general jurisdiction over Shelter. Since Texas courts
do not have specific or general jurisdiction over Shelter, Shelter is not amenable to suit in this case
and should not be subjected to this litigation in Texas.
ARGUMENT & AUTHORITIES
STANDARD OF REVIEW
This court has held that absent any dispute as to the relevant facts, the issue of whether
personal jurisdiction may be exercised over a nonresident defendant is a question of law to be
determined de novo by the reviewing court. See Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.
App.-Dallas 1994, pet. denied) (citing Guardian Royal Exch. Assurance, Ltd v. English China, 815
S. W.2d 223, 230-231 (Tex. 1991 ). However, if any factual dispute must be resolved before applying
the Court's jurisdictional formula, the standard of review for resolving those factual disputes is a
traditional factual sufficiency review. /d. However, in this case, there is not any real disputed facts
Therefore, the Court must undertake a de novo review based on the facts submitted to the trial court.
POINT OF ERROR:
THE TRIAL COURT ERRED BY DENYING APPELLANT'S SPECIAL APPEARANCE.
A. · The Law.
The trial court erred by denying Appellant's Special Appearance. Appellant, a non-resident
defendant, is not amenable to suit in Texas for the causes of action asserted in this litigation because
Texas does not have personal jurisdiction over Appellant. In order for Appellant, or any non-resident
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defendant, to be amenable to suit in a particular forum or jurisdiction, that jurisdiction must have
personal jurisdiction over the defendant. Personal jurisdiction consists of two elements: (1) the
defendant must be amenable to the jurisdiction of the court; and (2) the plaintiff must validly invoke
that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199,200 (Tex. 1985). Under the Texas long-arm statute, jurisdiction reaches as far as
the federal constitutional requirements of due process. U-Anchor Advertising, Inc. v. Burt, 553
S. W.2d 760 (Tex. 1977). Thus, the issue before the court is whether subjecting Appellant to the
jurisdiction of Texas in this litigation would violate the federal due process clause.
Due process limits the power of the state to assert personal jurisdiction over nonresident
defendants. Guardian Royal Exch., 815 S.W.2d at 226. In order for a nonresident defendant to be
subjected to a particular jurisdiction ( 1) the nonresident defendant must have purposely established
"minimum contacts" with the forum state and (2) the exercise ofjurisdiction must comport with "fair
play and substantial justice." !d. A substantial connection between the nonresident defendant and
Texas is necessary for there to be "minimum contacts." !d. at 230. Moreover, this conduct must
arise from action or conduct by the nonresident defendant purposefully directed toward the forum
jurisdiction. !d. When specific jurisdiction is asserted, the cause of action must arise out of or relate
to the nonresident defendant's contacts with Texas. !d. When general jurisdiction is alleged, there
must be continuous and systematic contacts between the nonresident defendant and Texas. !d.
General jurisdiction requires a showing of substantial activities by the nonresident defendant in
Texas. !d.
The "fair play and substantial justice" requirement of due process requires a showing that the
forum consideration is appropriate. /d. at 231. The following factors are to considered in deciding
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whether the forum selection comports with "fair play and substantial justice": (1) the burden on the
defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiffs interest
in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining
the most efficient resolution of controversies; and (5) the shared interest of the several states in
furthering fundamental substantive social policies. /d
B.
Application.
Shelter does not have the requisite "minimum contacts" with the State of Texas to permit
Texas courts to exercise personal jurisdiction, either specific or general. As set forth in the
uncontested affidavits in Appellant's Special Appearance, Shelter is a corporation organized under
the laws ofthe State of Missouri. (CR 19-20). Its home office is located in Columbia, Missouri.
Id It is a mutual insurance company that does operates in approximately fourteen (14) states,
including Oklahoma. Id Shelter does not have any offices, employees, or agents in the State of
Texas. Id Shelter has not written direct insurance in Texas since 1977. /d. Shelter does not write
any policies in Texas. /d. It does provide re-insurance coverage to 17 Texas insurance companies
but the premiums represent only 0.40% of the net premiums earned for Shelter Mutual Insurance
Company. /d. These premiums are done though through brokers throughout the United States. (CR
54-56).
Shelter does not solicit or sell insurance to Texas residents. /d. Shelter has extremely limited
connection to Texas. This limited action does not met the heightened systematic and continuous
contacts with Texas which the Constitution requires in order to subject Shelter to general in
personam jurisdiction in Texas. Shelter clearly has not consented to being subjected to suit in Texas
based on its limited connection to Texas. Accordingly, Shelter has insufficient contacts with Texas
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to meet the "systematic and continuous" contacts as required by due process.
The tests under either specific or general jurisdiction do not support jurisdiction over Shelter,
and even if they did, this Court's assumption ofjurisdiction would offend traditional notions of fair
play and substantial justice and would therefore be inconsistent with the constitutional requirements
of due process of law. See Guardian Royal, 815 S. W.2d at 231 (test for traditional notions of fair
play and substantial justice must be met even after the test for specific or general jurisdiction is met);
see also Internat'l Shoe, 326 U.S. at 316.
To determine whether asserting jurisdiction over
Appellant in this litigation would offend traditional notions of fair play and substantial justice.
Asserting jurisdiction over Shelter would not comport with fair play and substantial justice. Shelter
has already been sued in Texas, a state in which it does not reside, solicit business, write policies
maintain offices or employ any personnel, for a lawsuit over an automobile accident that occurred
in Oklahoma between Oklahoma residents and claimant, regarding a liability policy it issued and
wrote in Oklahoma, and involved Oklahoma attorney's and adjusters.
Requiring Shelter's
continuing participation in this lawsuit would worsen the effects of this unfair burden.
Additionally, Texas has little interest in adjudicating disputes involving a nonresident party
such as Shelter from insurance claims that have no connection to Texas. In Guardian Royal, the
court recognized that when parties are not from the State of Texas, "[the State's] interest in
adjudicating [such a] dispute ... is considerably diminished." Guardian Royal, 815 S.W.2d at 233.
On these facts alone, the court held that personal jurisdiction over the defendant was unreasonable
because it did not comport with fair play and substantial justice. !d. Requiring Shelter to litigate in
Texas would not further the interstate judicial systems' interest in obtaining the most efficient
resolution of controversies but it would increase the risk that parties will be forced into litigation in
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a jurisdiction in which Shelter has had no contacts. The assumption of jurisdiction over Shelter
would have an adverse effect on the due process rights afforded to all United States citizens.
Each state, including Texas, has an interest in adjudicating disputes of its own residents, not
those of foreign states. Accordingly, traditional notions of fair play and substantial justice mandate
that Texas not require Shelter to adjudicate this matter in a forum that it did not consent to. Due
Process therefore holds that Shelter is not subject to personal jurisdiction in Texas.
Finally, there is not specific jurisdiction in this lawsuit. There are not sufficient minimum
contacts to support specific jurisdiction because, as set forth above, this is an Oklahoma claim. The
claim involves an Oklahoma insurance policy issued by an Oklahoma insurance agent to Oklahoma
residents. The underlying accident occurred in Oklahoma. A claim presented by Norma Salazar,
an Oklahoma resident, was handled and resolved by an Oklahoma attorney and an Oklahoma
adjuster.
The claims were presented to Shelter's representative in Tulsa, Oklahoma.
All
negotiations were conducted between Shelter's representative in Tulsa, Oklahoma and the claimants'
attorneys in McAlester, Oklahoma. The settlements were reached as a result of negotiations
occurring between Shelter's representative in Tulsa, Oklahoma and attorneys in McAlester,
Oklahoma. The settlement funds and releases were forwarded from Shelter's offices in Tulsa,
Oklahoma to the claimants' attorneys in McAlester, Oklahoma. Accordingly, Shelter's actions in
this case all arose in Oklahoma and nothing they did concerned anything related to Texas. Thus,
there is not specific jurisdiction in Texas for Appellant's actions in this case.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant, Shelter Mutual Insurance Company,
Defendant in the trial court proceedings, respectfully prays that this Court decline to reverse the trial
court's decision to deny Appellant's Special Appearance and therefore decline to exercise
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jurisdiction over Appellant as there are not the requisite minimum contacts with the State of Texas
to allow this Court to justify a Texas court's assumption of jurisdiction.
Respectfully submitted,
~
By:
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Jeremy~c~ey
Dallas, Texas 75244
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served via
facsimile and/or hand delivery and/or certified mail return receipt requested upon the following
counsel of record on this ~ay of September, 2011.
Parul Das
Douglas Turek
TUREK DEVORE, P.C.
The Woodlands, Texas 773 80
(281) 296-6920
Fax: (281) 296-0733
Jeremy W.
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Mc~ey
APPENDIX
Order Denying Shelter Mutual Insurance Company's Special Appearance ................. 1
Special Appearance of Defendant Shelter Mutual Insurance Company .................... 2
Defendant Shelter Mutual Insurance Company's Brief in Support of Special Appearance ..... 3
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CAUSE NO. DC-10-10499-A
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DALLAS COUNTY HOSPITAL
DISTRICT DIB/A PARKLAND HEALTH
& HOSPITAL SYSTEM,
IN THE DISTRICT COURT OF
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Plaintiff,
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DALLASCOUNTV,TEXAS
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY,
FIREMAN'S FUND INSURANCE
COMPANY, SHELTER MUTUAL
ffiSURANCECOMPANY,TRAVELERS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
AAA TEXAS COUNTY MUTUAL ·
INSURANCE COMPANY, NATIONAL
AMERICAN INSURANCE COMPANY,
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY, and
OLD AMERICAN COUNTY MUTUAL
FIRE INSURANCE COMPANY,
Defendants.
14.., JUDICIAL DISTRICT
QRDER DENYING DEFEN»ANT SH£LTEB Ml!IllAL INSURANCE COMPANY'S
SPECIAL APPEARANCE
On this day came to be heard Defendant SHELTER MUTUAL INSURANCE
COMPANY'S Special Appearance, and after hearing the evidence and argument of counsel, the
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Court is of the opinion that such Motion should be denied. This Court is ofthe opinion.that
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Defendant SHELTER MUTUAL INSURANCE COMPANY has maintained sufficient minimum
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contacts with the State of Texas for this Court to exercise personal jurisdiction over this
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Defendant.
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IT IS, THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant
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·SHELTER MUTUAL INSURANCE COMPANY'S Special Appearance is DENIED.
SIGNED and ORDERED entered on this_,_. day of __4Ff~:::::·.__
__, 2011.
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Notice to be Sent To:
Jessica Guobadia, TUREK DEVORE, P.C.
Glennis E. Sims, Ekvall & Byrne, LLP
Via Facsimile (281) 296-6920
Via Facsimile (972) 960-9517
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CAUSE NO. DC-10-10499
§
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Plaintiff,
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V.
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COMPANY, SHELTER MUTUAL
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INSURANCE COMPANY, TRAVELERS §
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STATE FARM MUTUAL AUTOMOBILE §
INSURANCE COMPANY, AAA TEXAS
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COUNTY MUTUAL INSURANCE
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COMPANY, NATIONAL AMERICAN
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DISTRICT d/b/a PARKLAND HEALTH
& HOSPITAL SYSTEM,
DALLASCOUNTY,TEXAS
INSURANCE COMPANY, PROGRESSIVE§
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COMPANY, and OLD AMERICAN
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COUNTY MUTUAL FIRE INSURANCE §
COMPANY
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Defendants.
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141 H JUDICIAL DISTRICT
SPECIAL APPEARANCE OF
DEFENDANT SHELTER MUTUAL INSURANCE COMPANY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Shelter Mutual Insurance Company (herein "Shelter"), one ofthe Defendants
in the above-entitled and numbered cause, and files this Special Appearance pursuant to
Tex.R.Civ.P. l20a and would respectfully show the Court the following:
I.
This Court does not have personal jurisdiction of Shelter.
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SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY- Page I
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FACTS
II.
The following affidavits are attached hereto and incorporated in this Special Appearance:
I.
Affidavit of James R. Tuley, corporate attorney for Shelter Mutual Insurance
Company, attached hereto as Exhibit "A"; and
2.
Affidavit ofTina Watson, adjuster with Shelter Mutual Insurance Company, attached
hereto as Exhibit "B."
III.
As will be shown by the Affidavit of James R. Tuley, corporate attorney for Shelter Mutual
Insurance Company, Shelter is a corporation organized under the laws of the State of Missouri.
Shelter's home office is located in Columbia, Missouri. Shelter is a mutual property and casualty
insurance company domiciled in Missouri and presently operating in the states of Arkansas,
Colorado, lllinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska,
Nevada, Oklahoma, and Tennessee. Shelter does not own or possess any real estate in Texas.
Shelter does not have an office located in Texas. Shelter does not have any employees in Texas.
Shelter has no appointed agents in Texas and has had no agents in Texas since 1977. Shelter does
not have any policies or rates filed in Texas. Shelter ceased writing direct insurance in Texas in
1977. Shelter does provide re-insurance coverage to 17 Texas insurance companies with a signed
premium of$3,064,918.00 for the 2010 underwriting year. This premium represents only 0.40% of
the net premium earned for Shelter Mutual Insurance Company.
IV.
4.1
As shown by the Affidavit ofTina Watson, an adjuster with Shelter, the hospital lien
which is the subject of Plaintiffs lawsuit against Shelter is in regard to Norma Salazar. The accident
in which Norma Salazar was injured occurred in or near the City of Atoka, Oklahoma on December
15, 2008 (herein "Accident"). At that time, a vehicle driven by Rachel McCollum was involved in
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SPECIAl. APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY· Page 2
an accident with a vehicle driven by Reynaldo Pena. Rosa Pena and Norma Salazar were occupants
of the vehicle driven by Reynaldo Peni.
4.2
At the time of the accident, Shelter had an auto insurance policy issued to named
insured John McCollum and Rachel McCollum, Policy No. 35-1-3624415-4 (herein the "Policy").
John and Rachel McCollum reside at RR 1, Box 1135, Coalgate, Oklahoma 75438. The Policy was
issued by Randy Combs, P.O. Box 1077, Atoka, Oklahoma 74525.
4.3
Following the accident, Norma Salazar presented a claim against Rachel McCollum.
In said claim, Norma Salazar was represented by attorney Eric Grantham of McAlester, Oklahoma.
The claim was presented to Shelter's branch office in Tulsa, Oklahoma. Claims were also presented
by Reynaldo Pem1 and Rosa Pem1 against Rachel McCollum. Mr. and Mrs. Pena were represented
by attorney Tad Mercer of McAlester, Oklahoma. These claims were presented to Shelter at its
branch office in Tulsa, Oklahoma.
4.4
Tina Watson with Shelter in Tulsa, Oklahoma negotiated a settlement of the claim
ofNorma Salazar. These negotiations were conducted by Tina Watson in Tulsa, Oklahoma with Ms.
Salazar's attorney, Eric Grantham, in McAlester, Oklahoma. This settlement called for a payment
to Norma Salazar in the amount of $47,500.00.
4.5
Tina Watson also negotiated settlements for the claims of Rosa Pem1 and Reynaldo
Pena with their attorney, Tod Mercer of McAlester, Oklahoma. The claim of Rosa Pemi was settled
for $5,000.00, and the claim ofReynaldo Pena was settled for $47,500.00.
4.6
The settlements exhausted the bodily injury policy limits of the Policy.
4.7.
The settlement draft and release were sent to Norma Salazar's attorney, Eric
Grantham, in McAlester, Oklahoma. The settlement drafts and releases for Rosa Pena and Reynaldo
Pemi were sent to their attorney, Todd Mercer, in McAlester, Oklahoma.
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SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY· Page 3
The medical expenses of Norma Salazar exceeded $90,000.00. The medical expenses of
Reynaldo Pemi exceeded $90,000.00.
v.
NO MINIMUM CONTACfS
Shelter does not have the requisite "minimum contacts" with the State ofTexas to permit this
Court to exercise personal jurisdiction, either specific or general.
VI.
LACK OF GENERAL JURISDICTION
Shelter is a corporation organized under the laws of the State of Missouri. [ts home office
is located in Columbia, Missouri. Shelter does not have any offices, employees, or agents in the
State of Texas. Shelter has not written direct insurance in Texas since 1977. Shelter does provide
re-insurance coverage to 17 Texas insurance companies but the premiums represent only 0.40% of
the net premiums earned for Shelter Mutual Insurance Company.
VII.
LACK OF SPECIFIC JURISDICTION
There are not sufficient minimum contacts to support specific jurisdiction in that this
involves an Oklahoma insurance policy issued by an Oklahoma insurance agent to Oklahoma
residents. The accident occurred in Oklahoma. A claim was presented by Norma Salazar, as well
as by Reynaldo Pena and Rosa Pena. Ms. Salazar was represented in her claim by an Oklahoma
attorney. Mr. and Mrs. Pena were represented in their claims by an Oklahoma attorney.
The claims were presented to Shelter's representative in Tulsa, Oklahoma. All negotiations
were conducted between Shelter's representative in Tulsa, Oklahoma and the claimants' attorneys
in McAlester, Oklahoma. The settlements were reached as a result of negotiations occurring
between Shelter's representative in Tulsa, Oklahoma and claimants' attorneys in McAlester,
Oklahoma. The settlement funds and releases were forwarded from Shelter's offices in Tulsa,
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SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY- Page 4
Oklahoma to the claimants' attorneys in McAlester, Oklahoma.
VIII.
This Court should decline to exercise jurisdiction over Shelter as there are not the requisite
minimum contacts with the State of Texas to allow this Court to justify a Texas court's assumption
of jurisdiction. If this Court assumes jurisdiction, it will offend traditional notions of fair play and
substantial justice.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Shelter requests the Court set this
Special Appearance for a hearing, and upon final hearing hereof, sustain Shelter's Special
Appearance and enter a final order dismissing Plaintiffs cause of action against Shelter for want of
jurisdiction, that Shelter recover its costs of court expended in its behalf; and for such other and
further relief to which Shelter may be justly entitled.
EKVALL & BYRNE, L.L
By:
Glennis E. Sims
Lakeside Square, Suite 700
12377 Merit Drive
Dallas, TX 75251
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
ATTORNEYS FOR DEFENDANT
SHELTER MUTUAL INS. CO.
16
SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY- PageS
STATE OF TEXAS
COUNTY OF DALLAS
§
§
§
BEFORE ME, the undersigned authority, on this day personally appeared Glennis E. Sims,
and after being duly sworn by me, did state that he is the attorney of record for Defendant Shelter
Mutual Insurance Company in the above-entitled and numbered cause, and as the attorney of record,
is authorized to make this affidavit on Shelter's behalf, and states that the statements contained in
the foregoing Special Appearance are true and correct.
~
~
<MRYl L IlEATON
MY COMMISSION E:I?IAES
Augusl t, 2012
17
SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY - Page 6
A true and correct copy of the foregoing instrurnen~ served upon counsel of record in
accordance with the Rules of Civil Procedure on this~
Glennis E. Sims
18
SPECIAL APPEARANCE OF DEFENDANT SHELTER MUTUAL INSURANCE COMPANY - Page 7
STATE OF MISSOURI
)
COUNTY OF BOONE
)
ss.
AFFIDAVIT
The undersigned, first being duly sworn, for and on behalf of Shelter Mutual Insurance
Company, James R. Tuley (Affiant), states:
1. That I am a corporate attorney for Shelter Mutual Insurance Company and as
corporate attorney I have personally knowledge of the following facts and such
facts are true and correct.
2. That Shelter Mutual Insurance Company's home office is located at 1817 West
Broadway, Columbia, Missouri 65218.
3. That Shelter Mutual Insurance Company is a mutual property and casualty
insurance company domiciled in Missouri and presently operating in the states
of: Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Nebraska, Nevada, Oklahoma, and Tennessee.
4. That Shelter Mutual Insurance Company does not own or possess any real
estate in Texas.
5~ That Shelter Mutual Insurance Company does not have an office located in
Texas.
6. That Shelter Mutual Insurance Company does not have any employees in
Texas.
7. That Shelter Mutual Insurance Company has no appointed agents in Texas, and
has had no agents in Texas since 19n.
8. That Shelter Mutual Insurance Company does not have any policies or rates
filed in Texas.
9. That Shelter Mutual Insurance Company ceased writing direct insurance in
Texas in 1977.
10. That Shelter Mutual Insurance Company does provide reinsurance coverage to
seventeen (17) Texas insurance companies with a signed premium of
$3,064,918 for the 2010 underwriting year. This premium represents 0.40% of
the net premium earned for Shelter Mutual Insurance Company.
Further affiant saith not.
Subscribed and swam to before me this --lAday of
OdcJ,,.JI' , ~10
20
--
·-- ··-- · - - - - -
CAUSE NO. DC-10..10499
DISTlUCf d/b/a PARKLAL""ID HEALTH
& HOSPITAL SYSTl!:M,
§
§
§
§
Plaintift;
§
§
v.
§
§
ALLSTATEPRO:lJERTY AND
§
CASUALTYINSURANCECOMPANY,
§
FIREMAN'S FUND INSURA!~CE
§
COMPA.t."W, SHELTER MUTUAL
§
INSURANCE COMPANY, TRAVELERS §
CASUALTY INSVRA.NO.: COMPANY,
§
STATE FARM MlJTUAL AUTOMOBILE §
lNSURAl~CE COMPANY, AAA TEXAS
§
COUNTY MU'I'UAL INSURANCE
§
§
IN THE DJSTRicr COURT
DALLAS COUNTY, TEXAS
INSURANCE COMPANY, PROGRESSIVE§
§
§
COUNTY MUTUAL FIRE INSURANCE §
CO~WANY
§
§
§
Defendants.
14m JUDICIAL :OISTRICf
AFFIDAYJI OF TINA WATSON
STATEOFOKLABOMA
COUNTY OF Pl'lTSBURGH
§
§
§
BEFORE ME, the undersigned authority, on this day person.ally appeared Tina Watson,
who, being by mo first duly swom upon oath, deposed and said as follows:
"1.
My name is Tma Watson. I am over 18 years ofage, am of sound mind, and am fully
competent to make this affidavit The stamnents co:o.tained in this affidavit are
within my knowledge and are true and C01I'eCt.
2.
I am cmplo~ as an adjuster with Shelter Mutual Insurance Company. In my
position as an adjuster with Shelter Mutual Insurance Company, I have personal
lcnowlcdge of the statements contained in this affidavit
AFFIDA V1T OF TINA WATSON· Paee I
--- -- ·---
3.
The hospital lien made the subject of Plaintiff's lawsuit is in regards to patient.
Norma Salazar.
4.
The accident in which Norma Salaz& was iiijured occmred on December lS, 2008,
in or near the town of Atoka, Oklahoma. Rachel McCollum was the driver of one of
tho vehicles involved in the accident. Reynaldo Pena was the driver of the other
vehicle involved, and Rosa Pen.i and Norma Salazar were passengers in the vehicle
driven by Reynaldo Pen!.
5.
At the time ofthe accident, Shelter had an Auto Policy, Policy No. 35-l-3624415-4
(herein "Policy") issued to named insureds, John and Rachel McCollw:o.. The Policy
was issued to John and Rachel McCollum. RR 1. Box 1135, Coalgate, Oklahoma
74538. The Policy was issued by agent Randy Combs, P.O. Box 1077, Atoka,
Oklahoma. 74524. A tnlC and correct copy of the Declarations Page of the Policy is
attached hereto a.s Exhibit "A."
6.
Aftertbeaccident,aclairnwasassertedbyNonnaSalazaragainstRacbelMcCollum..
In presenting her claim. Ms. Sataza.- was represented by attorney Eric Gnmtham of
McAlester, Oldaboma. The claim was presented to Shelter's representative, Tina
Watson, at Shelter's branch office in Tulsa, Oklahoma.
7.
After the accident, Reynaldo PenS. and Rosa PenA presented a claim against Rachel
McCollum. In presenting the claim, Reynaldo Perui and Rosa Peua were t:ePresented
by attorney Tod S. Mercer of McAlester, Oklahoma. The claim was presented to
Tina Watson with Shelter's branch office in Tulsa, Oklahoma.
8.
On or about Januuy 30, 2009, an agreement to settle the claims ofNorma Salazar
was reached between Tina Watson with Shelter's branch office in Tulsa, Oklahoma
and Eric Grantham in McAlester, Oklahoma. The amount of the settlement was
$47,500.00. On or about Janwuy 30, 2008, an agreement to settle the cl.a.ims of
Reynaldo Pena and Rosa Pen& was negotiated between Tina Watson with Shelter in
Tulsa, Oklahoma and Tod Mercer in McAlester, Oklahoma. The amount to be paid
to Reynaldo Pen& was $47,500.00. The amount to be paid to Rosa Peni was
$5,000.00. This exhausted the bodily injUIYpolicy limitS of the Policy. The medical
expenses for Nonna Sa.lazar exceeded $90,000.00. The medical expenses for
Reynaldo Peni exceeded $90,000.00
9.
On Februazy 2, 2009, the settlement draft in the amount of$47,500.00 and the release
for Norma Salazar was sent from Shelter's offices In Tulsa, Oklahoma to Eric
Grantham in McAlester, Oklahoma. A true and conect copy of the letter of
transmittal is attached hereto as Exhibit "B." Nonna Salazar signed the release on
Febnwy 4, 2009. A true and correct copy is attached hereto as Exhibit "'C."
10.
OnFebruary2,2009, the settlement drafts in theamountof$5,000.00 toRosaPenA
and $47,500.00 for R.cynal.do Pent were forwarded from Shelter's branch office in
Tulsa, Oklahoma to Tod M=cer In McAlester, Oklahoma. True and cor.rcct copies
of the releases signed by Rcynaldo Pen! and Rosa Pena are attached hereto as
AFFIDAVlT OF TINA WATSON ·l'a;e :Z
22
&ln'bits "D" and '"E" respectively.
11.
All matters regarding the presentment of the claims, negotiations, and settlement of
the claims, payments, and releases were conducted between Shelter's representative
in Tulsa. Oklahoma and the PlaintiftS' attorneys in McAlester, Oldahoma.
FURTIIER AFFIANT SAYETI! NOT.
SHELTER MUTUAL ~SVRANCE COMPANY
By:
Its:
Tina Watson
Authorized Representative
SUBSCRIBED AND SWORN_TO BEFORE ME, the undersigned authority to certify my
official seal of office (In this the
I 3a
day of
Ot.hlbtt"'
2010.
(Seal)
AmDAVIT OF TINA WATSON - Pa&e l
23
SHELTER INSURANCE COMPANIES
THIS AUTO POLICY ISSUED BY
SHELTER MUTUAL INSURANCE CO.
COLUMBIA, MISSOURI 65218·0001
AUTO POLICY
DECLARATIONS
AND
POLICY SCHEDULE
YOUR SHELTER AGENT IS
RANDY COMBS
P 0 BOX 1077
ATOKA, 01( 74525
580·889·2265 AGENT NUMBER
35-08275-03
REISSUE OF POLICY NUMBER 35·1·3624415·4
POLICY FORH NUMBER A-653-A
THE DESCRIBED AUTOMOBILE IS A 2004 CHEVY TAHOE 2WD LT
VEHICLE IDENTIFICATION II 1GNEC13Z34R286867
NAME AND ADDRESS Of NAHED INSURED:
THE LOSS PAYEE CLAUSE APPLIES TO:
r... r.r •• r.r.r ...u.r.. r.r.r •• r... r.. u.1...1.. 11•• 1.1.1.1..
#3S-OB275-03
JOHN AND RACHAEL MCCOLLUM
RR 1 BOX 1135
COALGATE OK 74538-9737
CAPITAL ONE AUTO
FINANCE
PO BOX 390907
MINNEAPOLIS MN 55439-0907
THE POLICY PERIOD IS FROM 9:58 A.M. APRIL 8, 2008 TO OCTOBER 17, 2008 AT 12:01 A.M. STANDARD TIME
AT THE ADDRESS OF THE NAHED INSURED AS STATED HEREIN, AND SUBJECT TO THE CONSENT Of THE COMPANY FOR TERMS
OF SUCH DURATION EACH THEREAFTER AS THE REQUIRED RENEWAL PREMIUM IS PAID BY THE INSURED AND RECEIVED BY
THE COMPANY ON OR BEFORE THE EXPIRATION DATE OF THE CURRENT TERH.
THE LIMIT OF THE COMPANY'S LIABILITY IS STATED IN THE POLICY AND APPLIES AS FOLLOWS·
11
E
BOOIL/INJURY
PROP ERTV MEDiCAL ACCl~ENTAl
COVERAGE
DAMAGE
PAYMENTS
DEATH
~~~~~~~~~
EACH
EACH I EACH I EACH
EACH
EACH
EACH
PERSON
ACCIDENT
PERSON
eEBS!JH I ACCIUEHI I ACCIDEHI PERSON
liMIT
150. non•
1100.0001
oon
sso.ooo fli .110TI
y
PREMIUM
X
X
I
-,
DISCOUNTS REFLECTED IN THE PREMIUM: SAFE DR lOS, MULTICAR, PASSRESTR
ADDITIONAL LISTED INSUREDS: MCCOllUM, JOHN: MCCOLLUM, RACHAEl
THE FOLLOWING ENDORSEMENTS ARE A PART OF THIS POLICY AND ARE ATTACHED:
A-688.0-A
OKLAHOMA AMENDATORY ENDORSEMENT
COLL~SION COHPREH~NSIVE EHER~ENCY
OF~~g~[RI F
y
Of~~~~i'fRI F
ROAD SERVICE
EACH
DISABLEMENT
s no
J(
J(
RECEIVED FOR THIS REISSUE
NONE
• · • ·-- •• • • • • ••• • • •• • •• --- •• • •• • ..... -····--PlEASE R[HOVE THESE CARDS BY CUTTING ON DOTTED liNES--·-·············--------- .. ·---·--· .. ·-- .... ·-1
SHEUER MUTUAL INSUIIAHCE COMPANY
1·800-SHELTER I
1·800-SHElTER I
I
1811 II. BROADIIAY
COlUIIBIA, MO. 6S218-0D01
I
1817 II. BROADWAY
COLUMBIA. 110. 65218·0001
I
I
AGENT: RANDY COIISS
580-889-2265
I
AGENT: RANDY COMBS
580·889·ZZ6S
I
POLICY NUMBER: 35-1-3624415·4
I
POliCY NUMBER: 35·1-3624415-4
I
I
I
I
I
I
I
EFFECtiVE DATE 04-08·2008
2004 CHEVY TAHOE 2\10 LT
EXClUDED DR!VERS:HONE
I INSURED:
EXPIRATION DATE 10·17·2008
VIM lGNEC13!34R286867
I
I
I
I
EFFECTIVE OAT£ 04·08-2008
2004 CHEVY TAIIOE 211D lT
EXCLUDED DR!VERS:NONE
EXPIRATION DATE 10-11-2008
VIM 1GNEC13Zl4RZ86867
I
!IAIC11·23388 I INSURED:
I
I
tOHI
IIAICII·Z3388 I
I
VEAlFlCAfiDNI
I
JOHN ANO RACHAEL MCCOLLUM
I
AHO RACHAEL MCCDLLUM
IHOIICE fOil OKLAHOI'IA POLitYHOLUlR~ •••••• OWHlR'S SECIIRITY VE~IFICATIONINOTICE FDA Ok All()l(A POLICYHOlDERS Uuu OWNER'S SECURITY
IAn owner·s lliblllty lnsur1nce policy nas been Issued pursuant to the (An owner's liability lns11r1nce policy hu been lssue4 pursu1nt to tile
!compulsory Insurance laws of tills state. Exa•lne policy exclusions
tcoaputsory Insurance laws of this state. Exa•lne policy exclusions
!carefully. This for• does not constitute any p1rt of your Insurance ICirefully. This for~ does not constitute any p1rt of your Insurance
(policy. WARNING Oklahoma state law requires:
(POlley. WARNING Oklahoma stite hw requires:
I
II. A current copy of the owner's security ~erlflcatloa foro~ •ust be
I
surrendered to the 110tor license agent or other registering agency
1 upoR application or renew1l for a IIIOtor license plate.
12. The other copy of the owner's security verification for~ to be
1 carried In the 11otor venlcle at all tlmes, and produced by any
1
drher of the vehtcle upo11 request for lnspec~ton br ""Y peace
officer or represenuttve of the deoartlllent of publ lc slEety. In
1
I
cue of a collision. the owner·s sec~o~rlty verification foMI shall
1
be sho"'" upon reque5t of any person affected by the collision.
I
I
I
I
I
I
I
I
I
11. A current copy of tne owner's security verlflutlon for• 11111t be
I
1 surrendere<l to the motor license agent or other registering agency I
1 ui)On appllcitlon or renewal for 1 1110tor license phte.
12. The other copy of the cwner·s security verification for11 to be
I carried In the 1110tor nhlcle It all tllltS, and
I
driver of the vehicle upon
for In
I
officer or representative of
1 cue of • collision, the owner s
I
be shown upon request of any person
x...................................................................... , ............................................. .
t 8 J7 WEST BROADWAY • COLUMBIA, MISSOURI 652 t 8-000 t • (573)445-844 t
!I
SHELTER
INSURAN'CE
COMPANIES
SHELTER MUfUAL
SHELTER GENERAL
0210212009
STIPE HARPER LAIZURE USELTON & BELOTE LLP
POBOX 1369
MCALESTER, OK 74502-1369
RE:
Claim Number:
Date of Loss:
Insured:
A T000000021 5028
Dec 15,2008
MCCOLLUM, JOHN
Dear Mr Grantham:
We have enclosed the draft for settlement for your client Norma Salazar in the amount of $47,500.00 as
agreed and the release to be signed and returned.
We ace pleased to serve you. If you have any questions, please call me.
Sincerely,
Tina Watson
Claims Department
Phone: 918-294-2240
Fax:
888-742-5671
Email: [email protected]
CL120(c)
Enclosure(s)
cc:
li illlllllllll.
ill
tm~lllllll
18
215028
-·
10824
laim Number
._
•
.111111111
RELEASE
.•
fEB 1 6 2009
(Third Party)
NOTE: THIS IS A FULL RELEASE OF YOUR CLAIM. READ IT CAREFULLY.
Amount Paid
$47.500.00
forty Seven Thousand Ejye Hyodced Og!!ars
Date and Place of Acc:ide-rt -.wDXltcw..l.u5,..r~r.:2008.11C1Qi~t.~AQ!t~gk~aLJO"'-'K~------------------Releasees
Rachael McCollu'n. John McCoii\JTI and Shelter Mutual Insurance Company
Description of Claim
BodilY Injury CJa!m
fer Norma ~laHJr
For this payment, 1/we release Releasees, their heirs. executors, administrators, and all entities and
persons who may be liable on their behalf, from all claims, suits. demands, damages. costs, actions, or causes
of action arising from any personal injuries and property damages. ntYN apparent and those that may later
appear, as a direct or indirect result of the accident.
This release fully settles and discharges all my/our claims against Raleasees. No Releasee admits any
liability, nor does this release bar any dalm by Releasees, who expressly reserve the right to assert any daim
against others 01 me/us.
·
This release is given In good faith as a voluntary settlement of a disputed claim and does not discharge
anyone other than Releasees. 11\Ne release the Releasees from allliab~ity for contribution or non-contradual
indemnity to any other tort-feasor and agree to hold harmless and indemnify Releasees for all expenses
·
incurred. Including attorney's fees, in any such claim against the Relaasees.
WARNING: Any person who knowingly and wfth Intent to Injure, defraud, or deceive an Insurer, makes
any claim for the proceeds of an Insurance policy containing any false, Incomplete. or misleading
Information commits a criminal offense that Is punishable by Imprisonment and/or fine. Any Insurance
company or agent who knowingly provides false, Incomplete, 01 misleading lnfonnatlon for the
purpose of defrauding a policyholder or dalmant In a claim settlement must be reported to the State
Dlvlalon.of Insurance.
IIWe have fully read, understand, and voluntarily accept this agreement to fully and finally compromise
all claims, disputed or not. based on the InJuries and damages from this accident
Signed this
YU,
~~~
fcf».tia
..U~tO
day of
@'i ·
Norma Salazar
Print Name
In the presence of:
C-5.11-C
Print Name
_j
ii'
•
;§I
IIBIWIIII
215021
!B
18
I.
10124
ATOOOOOQ0215Q28
Cleiftl Numbw
RELEASE
(Third Party)
FEB 0 9 zoot
NOTE: 1MIS IS A FULL.:RELEASE OF YOUR CLAIM. READ IT CAREFUUY.
Amount Paid
§47.500,00
forty stven Thousand fjye Hundr8d Qd!m
Date and Place of Accident:
,.
Releasees
Oasc~on
Racbael
of Claim
Oec 15, 200t &aka OK
McCo lum. Job? Ms&o!l;en and §be!!er My!uatlnsyrance Coo=oany
BOdDy lnlurv Claim for Atyraldo PaQa
For this payment, 1/we relaase Releasees, their heirs, executors, administrators, and aD entities and
persons who may be Hable on their behatf, from all claims, suits, demands, damages, costs. actions, or causes
of action arising from atiy personal injuries and property damages, now apparent and those that may later
appear, as a direct or Indirect result of the accident
This release fully setdes and discharges all my/oor claims against Releasees. No Releasee admits any
liability, nor does this release bar any claim by Reteasees. who e"C)ressly r888f'V8 the righl to assert any daim
against others or malus. :
This raleaae is giveit In good faith as a voluntary settlement of a disputed claim and does not discharge
anyone other than Releasees. IN/a release the Releasees from all liability for contribution or non-contradual
Indemnity to any other tort-feasor and agree to hold harmless and indemnify Releasees for all expenses
incurred, including attorney's fees, in any such claim against the Releasees.
WARNING: Any perso~ who knowingly and with Intent to InJure, defraud, or deceive an insurer, makes
any claim for the proc:.eeds of an Insurance policy containing any fal••· Incomplete, or misleading
Information commits a criminal offense 1hat Ia punlahable by lmprfsmmen1 and/or fine. Any Insurance
company or agent who knowingly provides false, Incomplete, or misleading lnfonnatlon for the
purpose of defrauding a policyholder or dalmanl In a claim set1fement must be reported to the State
Oivlalon of Insurance. :
1/We have fully read. understand, and voluntarily accept this agreement to fully and finally compromise
all claims, disputed or not. ba•ed on the lnjurln and damagn from thl• accident
*
Sigoed toio
ql:t .
0~~
day
of~ , ~
~kcrw: .
Si9f'atura
p
.
~
•
~ e:~~···~
C-S.tt..C
'L.:
Signa1Ure
Reynaldo Pena
Print Name
In the pres~nce of:
~. ~
Rosa Pena
PrW'rt Name
~
--·--·-.,
••
--·--·--
-------
IIII~I~UIIIIIIimll
•!lM
•
2t5021
1111111111
,,
AT000~028
Claim m
seLEMC
(Third Party)
•
FEB
0 9 2009
NOTE: THIS IS A FULL RELEASE OF YOUR CLAIM. READ IT CAREFULLY.
Amount Pales
ss.ooo.oo
Fl'f! Tngusand Dollars
Date ard Place of Acctdent::_D
..g111cr..~1-.5...,..2.,.008-·.:A~aatok
1111a_o~~.k- - - - - - - - - - - - - - - - - - Reteasees
Rschaet Mc;Coflym, John MtCgJ1\.!'!! and Sbehec t:\!tua!lnsuranca Company
Description of Claim
Bodily lojyrv Claim for Rosa Pena
For this payment, !/we release Refeaseea, their heirs, executo~S, administrators, and all entities and
persons who may be llab_le on lheir behalf, from all claims, suits, demands, damages, cosls, actions, or causes
of action arising from ar.y personal lnjutles and property damages. now apparent and those that may later
appeai, as a direct or lnd!rect result of the accident.
This release fully settles and discharges all my/our claims against Raleasees. No Releasee admits any
liability, nor does this release bar any claim by ReleasGes, who eJq)ressly reseMt the rlglt to assert any dalm
against others or melus. :
This release is given in good faith aa a voluntary sehlement of a disputed claim and does not discharge
anyone o:her than Releasees. IIWa release the Releasee& from all liability for contribution or non-contradual
Indemnity to any other tort.feasor and agree to hold hannleas and Indemnify Releasees for all expenses
Incurred, :ncluding ettomoy's fees. In any such claim against the Reteasees.
WARNING: Any parson· who knowingly and with Intent to InJure, defraud, or deceive an Insurer; makes
any claim for the proceeds of an Insurance policy containing any false, Incomplete, or misleading
Information commits a criminal offense1hat is punishable by tmprlsonmen1 and/or nne. Any insurance
company or agent who knowingly provtdu false, Incomplete, or misleading lnfonnadon for the
purpose of defrauding policyholder or claimant In a claim sat11ement must be repor1ad to the State
Divlslon of Insurance. !I
a
:.:.=
IJWe have fully read, un"derstand, and voluntarily accept thle agreement to fully and finally compromise
all claims, disputed or riot, based on thelnJurtn and damages from this accident.
_____aAo.
d;__ol~ ..W'l . .
~ ~
u5Rt4. ~
~(l..;._~
__
v4~---
qi;!e. :
Sig!"atu·•
..
Rosa Pena
""/"
Sigrnr.ure
Reynaldo Pena
Print Name
·,
C-5.11·C
.
"!
Aled
11 March 23 P4:12
Gary Fitzsimmons
Dlstr1ct Clerk
Dallas District
CAUSE NO. DC-10-10499-A
DISTRICT d/b/a PARKLAND HEALTH
& HOSPITAL SYSTEM,
Plaintiff,
v.
COMPANY, S~ELTERMUTUAL
INSURANCE COMPANY, TRAVELERS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, AAA TEXAS
INSURANCE COMPANY, PROGRESSIVE
COUNTY MUTUAL FIRE INSURANCE
COMPANY
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
DALLAS COUNTY, TEXAS
§
§
§
§
§
Defendants.
IN mE DISTRICT COURT
14T" JUDICIAL DISTRICT
DEFENDANT SHELTER MUTUAL INSURANCE COMPANY'S
BRIEF IN SUPPORT OF SPECIAL APPEARANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Shelter Mutual Insurance Company (hereinafter "Shelter"), one of the
Defendant's in the above-entitled and numbered cause, and files its Brief in Support of Special
Appearance.
I. FACTS
Pursuant to Texas Rule of Civil Procedure 120a, Shelter filed its Special Appearance on or
about October 15,2010. Shelter attached the affidavits of James R Tuley and Tina Watson, which
DEFENDANT SHELTER MUTIJAL INSURANCE COMPANY'S
PAGEl
45
Shelter fully incorporates herein by reference, as supporting evidence to show that it does not have
minimum contacts to confer jurisdiction in Texas in this case.
Plaintiff instituted this suit to collect on a hospital lien that it filed. See Plaintiff's Original
Petition, which is on file with the Court. Apparently, Plaintiff treated Norma Salazar for injuries
suffered in an automobile accident that occurred in Atoka, Oklahoma. Id The automobile accident
given rise to the apparent treatment involved Oklahoma residents, Oklahoma attorneys, an Oklahoma
insurance policy and an Oklahoma insured. See Affidavit of Tina Watson, previously filed with the
Court.
Shelter is a mutual property and casualty insurance company domiciled in Missouri and
currently operates in Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Nebraska, Nevada, Oklahoma, and Tennessee. See Affidavit of James R.
Tuley, attached hereto as Exhibit "A". Shelter does not write insurance in Texas and ceased writing
policies in Texas over thirty years ago. ld Shelter does not have any employees, offices or agents
in Texas. Id; see also Affidavit ofTina Watson, previously filed with the Court.
II. ARGUMENTS AND AUTHORITIES
The Due Process Clause of the Fourteenth Amendment protects individual's liberty interests
in not being subject to binding judgments of a forum with which he has established no meaningful
"contacts, ties, or relations." lnternat'/ Shoe Co. v. Washington, 326 U.S. 310,319 (1945). 1 The
Due Process Clause thus limits the power of a state to assert in personam jurisdiction over a nonresident defendant such as Shelter. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
1
The United States Supreme Court has long held that the Fourteenth Amendment' sDue Process Clause applies
equally to individuals and corporate entities. Liggett Co. v. Baldridge, 278 U.S. 105 ( 1928); Kentuclr:y Co. v. Paramount
Exch., 262 U.S. 544,550 (1923); Smyth v. Ames, 169 U.S. 466, 522 (1898).
DEFENDANTSHELTERMUTUAL INSURANCE COMPANY'S
PAGEl
46
413-14 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980) (due
process requires that the defendant be subject to the personal jurisdiction of the forum state).
The United States Supreme Court concluded that the due process requirement of whether the
forum state has established personal jurisdiction is divided into two parts: (1) whether the
nonresident defendant has purposely established "minimum contacts" with the forum state; and (2)
if so, whether the exercise of jurisdiction comports with "fair play and substantial justice." Burger
King Corp. v. Rudzewicz, 411 U.S. 462,475-76 (1985); see Helicopteros, 466 U.S. at 414; BMC
SoftwareBelgium, N. V. v. Marchand, 83 S. W.3d 789, 795 (Tex. 2002); Guardian Royal Exch. Assur.,
Ltd v. English China Clays, P.L.C., 815 S.W.2d 223,226 (Tex. 1991). Due Process requires a
minimum contact analysis to determine whether a nonresident defendant has purposefully availed
itself of the privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws. Burger King, 411 U.S. at 474-75. The "purposeful availment" analysis
ensures that the nonresident defendant will not be haled into a jurisdiction based solely upon
"random," "fortuitous" or "attenuated" contacts or the "unilateral activity of another party or a third
person." Id; Helicopteros, 466 U.S. at 417; World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 298 (1980). Furthermore, minimum contacts with the forum state ensures that a nonresident
defendant has fair warning that a particular activity may subject them to the jurisdiction of a foreign
sovereign. Burger King, 411 U.S. at 472.
The United States Supreme Court has refined the minimum contacts analysis into specific
or general jurisdiction over the defendant.
Helicopteros, 466 U.S. at 414 n. 8; World-Wide
Volkswagen, 444 U.S. at 293-94; see Commonwealth Gen. Corp. v. York, 177 S.W.3d 923,925 (Tex.
2005); BMC Software, 83 S. W.3d at 795. Accordingly, when deciding whether Texas has personal
jurisdiction over Shelter the court must determine and analyze whether Shelter has availed itself to
PAGE3
47
either specific or general jurisdiction. Under constitutional analysis, Texas courts do not have either
specific or general jurisdiction over Shelter to adjudicate the allegations brought by Plaintiff in this
lawsuit.
A.
THERE IS NO SPECIFIC JURISDICTION OVER SHELTER BECAUSE PLAINTIFF'S CAUSES OF
ACTION Do NOT ARISE FROM SHELTER'S CONTACTS WITH TEXAS.
Texas courts cannot exercise specific jurisdiction over a nonresident defendant unless the
nonresident defendant's activities were ..purposefully directed" at Texas, and the litigation resulted
from injuries that.are alleged to ..arise out of' or "relate to" those activities. Nail Indus. Sand Assin
v. Gibson, 897 S. W.2d 769, 774 (Tex. 1995); Schlobohm v.Schapiro, 784 S.W.2d 355, 358 (Tex.
1990); see Helicopteros, 466 U.S. at 414; MC Software, 83 S. W.3d at 796; Malaysia British Assur.
v. El Paso Reyco, Inc., 830 S.W.2d 919, 921 (Tex. 1992) (concluding that foreign reinsurer who
contracted with primary insurer to pay primary insurer for claims paid to its insureds, some of whom
lived in Texas, did not purposefully avail itself to Texas); Guardian Royal, 815 S. W.2d at 227. The
Texas Supreme Court recently clarified that the "arise from or relate to" requirement means the
defendant's contacts must be substantially connected to the operative facts of the litigation. Mold
Mac River Expeditions v. Drugg, 221 S.W.3d.569, 575-76 (Tex. 2007).
In this case, Plaintiff does not argue that Texas has specific jurisdiction over Shelter in this
case.
See Plaintiff's Response to Defendant Shelter Mutual Insurance Company's Special
Appearance, which is on file with the Court. Plaintiffs cause of action arises out of a Hospital Lien
Parkland apparently filed under Chapter 55 of the Texas Property Code. !d.; see also Plaintiff's
Original Petition. Parkland apparently provided medical treatment to Norma Salazar following an
automobile accident in which she was injured. Id Shelter's only connection in the accident stems
from the fact that it provided liability insurance coverage to the tortfeasor in this accident. Again,
PAGE4
48
it is undisputed that the accident occurred in Oklahoma. that the liability insurance policy was an
Oklahoma policy issued to Oklahoma residents and issued by an Oklahoma agent.
Undeniably, Shelter's connection to Texas, if any, has nothing to do with the nature of this
lawsuit. Plaintiffs claims do not arise from and are not related to any activity conducted by Shelter
in Texas. Shelters's contacts with Texas unequivocally are not substantially connected to the
operative facts of this litigation. Accordingly, Texas courts do not have specific jurisdiction over
Shelter in this lawsuit.
B.
THERE Is No GENERALJU RISDICfiON BECAUSE SHELTER DOES NOT HAVE CONTINUOUS
AND SYSTEMATIC CONTACTS WITH TEXAS.
It is well-settled that Texas courts cannot exercise general jurisdiction over a nonresident
defendant unless the nonresident defendant has continuous and systematic contacts with Texas.
BMC Software, 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 230; see Helicopteros, 466 U.S.
at 415-16 (holding that foreign corporation's contacts with Texas, which consisted of one trip to
Texas by corporation's chief executive officer for purpose of negotiating transportation services
contract, acceptance of checks drawn on Texas bank, and purchases ofhelicopters and equipment
from Texas manufacturer and related training trips, were insufficient to establish personal
jurisdiction in wrongful death action). To show general jurisdiction, the contacts analysis is "more
demanding and requires a showing of substantial activities in the forum state." Guardian Royal, 815
S.W.2d at 228. Random, fortuitous, or attenuated contacts do not suffice to subject a foreign
defendant to personal jurisdiction.
Burger King Corp., 471 U.S. at 475.
Unlike a specific
jurisdiction analysis, which focuses on the contacts that substantially relate to the litigation, a general
jurisdiction analysis requires that all of the defendant's contacts with Texas be carefully investigated,
compiled, sorted and analyzed for proof of a pattern of continuing and systematic activity. P HCDEFENDANT SHELTER MUTUAL INSURANCE COMPANY'S
PAGES
49
Minden, L.P. v. Kimberly-Clark Corp., 235 S. W.3d 163, 175 (Tex. 2007) (concluding that foreign
corporation did not have systematic and continuous contact with Texas so that it availed itself to
Texas courts); American Type Culture Collection, Inc. v. Coleman, 83 S. W.3d 801, 809 (Tex. 2002);
IRA Res. v. Greigo, 235 S.W.3d 263, 266 (Tex. App.-Corpus Christi 2007, no pet.)
Shelter does not have continuous and systematic contacts with Texas. It is undisputed that
Shelter does not have any offices, employees or agents in Texas. Furthermore, Shelter does not write
any policies in Texas and it has not written policies in Texas for over thirty years. It does not solicit
or sell insurance to Texas residents. Shelter's only contact with Texas is that it provides re-insurance
to some Texas insurance companies. Despite Plaintiff's conclusory allegations, this limited action
does not met the heightened systematic and continuous contacts with Texas which the Constitution
requires in order to subject Shelter to general in personam jurisdiction in Texas.
Shelter clearly has not consented to being subjected to suit in Texas based on its limited
connection to Texas. Shelter has insufficient contacts with Texas to meet the "systematic and
continuous" contacts required by the Fourteenth Amendment. Accordingly, Shelter cannot be
subject to personal jurisdiction in Texas.
C.
THE COURT'S ASSERTION OF PERSONAL JURISDICTION OVER SHELTER WOULD VIOLATE
TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.
The tests under either specific or general jurisdiction do not support jurisdiction over Shelter,
and even ifthey did, this Court's assumption of jurisdiction would offend traditional notions of fair
play and substantial justice and would therefore be inconsistent with the constitutional requirements
of due process of law. See Guardian Royal, 815 S. W.2d at 231 (test for traditional notions of fair
play and substantial justice must be met even after the test for specific or general jurisdiction is met);
see also Internat'l Shoe, 326 U.S. at 316.
PAGE6
50
To determine whether asserting jurisdiction over Shelter in this action would offend
traditional notions of fair play and substantial justice, the Court must consider the following factors:
•
•
•
•
•
the burden on the defendant;
the interests of the forum state in adjudicating the dispute;
the Plaintitrs interest in obtaining convenient and effective relief;
the interstate judicial system's interest in obtaining the most efficient resolution of
controversies; and
the shared interest of the several states in furthering fundamental substantive policies .
Guardian Royal, 815 S. W .2d at 23 1.
Evaluating the above factors demonstrates that asserting jurisdiction over Shelter would not
comport with fair play and substantial justice. Shelter has already been sued in Texas, a state in
which it does not reside, solicit business, write policies maintain offices or employ any personnel,
for a lawsuit over an automobile accident that occurred in Oklahoma between Oklahoma residents
and claimant, regarding a liability policy it issued and wrote in Oklahoma, and involved Oklahoma
attorney's and adjusters. Requiring Shelter's continuing participation in this lawsuit would worsen
the effects of this unfair burden.
Second, the State of Texas has little interest in adjudicating disputes involving a nonresident
party such as Shelter. In Guardian Royal, the court recognized that when parties are not from the
State of Texas, "[the State's] interest in adjudicating [such a] dispute . . . is considerably
diminished." Guardian Royal, 815 S.W.2d at 233. On these facts alone, the court held that personal
jurisdiction over the defendant was unreasonable because it did not comport with fair play and
substantial justice. !d.
Third, whlle Plaintiff is interested in obtaining convenient and effective relief, Plaintiff is
required to proceed in accordance with due process oflaw. In this case, forcing Shelter into a foreign
jurisdiction, in a lawsuit unrelated to any contacts Shelter has ever had with Texas, violates both the
Texas and the United States Constitutions.
PAGE7
51
Fourth, requiring Shelter to go to trial in Texas would not further the interstate judicial
systems' interest in obtaining the most efficient resolution of controversies but it would increase the
risk that parties will be forced to go to trial in a locale in which Shelter has had no contacts. Since
Shelter has no contacts with Texas, the assumption of jurisdiction over Shelter would have an
adverse effect on the due process rights afforded to all United States citizens.
Fifth, no interest in furthering substantial, substantive policies suggests that Shelter should
not be dismissed from this lawsuit. Each state, including Texas, has an interest in adjudicating
disputes of its own residents, not those of foreign states. Accordingly, traditional notions of fair play
and substantial justice require that Texas not require Shelter to adjudicate this matter in a forum that
it did not consent to. Due Process requires that Shelter be dismissed from this suit as Shelter is not
subject to personal jurisdiction in Texas.
III. CONCLUSION
Shelter does not have sufficient contacts with the State of Texas to justify a Texas court's
assumption of jurisdiction. Texas does not have specific jurisdiction because this lawsuit has not
nothing to do with any contacts Shelter might have in Texas. Moreover, Texas does not have general
jurisdiction in Texas because Shelter does not have "systematic and continuing" contacts in Texas
wherein it personally availed itself to lawsuits in Texas. Finally, assuming jurisdiction over Shelter
would offend traditional notions of fair play and substantial justice. For these reasons, the Due
Process Clause of the Fourteenth Amendment forbids Texas from subjecting Shelter to litigation in
this lawsuit. Therefore, Shelter should be dismissed from this suit as the Court does not have
personal jurisdiction over Shelter.
PAGES
52
EKVALL & BYRNE, L.L.P.
By:
Oknnis E. Sims
Jeremy W. McKey
4450 Sigma Road, Suite l 00
Dallas, Texas 75244
Telephone: {972) 239-0839
Facsimile: {972) 960-9517
ATTORNEYS FOR DEFENDANT
SHELTER MUTUAL INS. CO.
A true and correct copy of the foregoing instrume~t was served upon counsel of record in
accordance with the Rules of Civil Procedure on this2)A day of March, 2011.
Douglas Turek
Sean A. Clemmensen
TUREK DEVORE,P.C.
THOMPSON, COE, COUSINS & IRONS, L.L.P.
The Woodlands. TX 77380
700 N. Pearl Street, 25th Floor
Dallas, TX 75201
William Lance Lewis
Courtney N. Kano
QUILLING, SELANDER, COMMISKY &LOWNDS
SUZANNE I. CAL VERT & ASSOCIATES
2001 Bryan Street, Suite 1800
Dallas, TX 75201
900 Jackson, Suite 700
Dallas, TX 75202
Carlos A. Balido
WALTERS, BALIDO & CRAIN, L.L.P.
Founders Square
900 Jackson Street, Suite 600
Dallas, TX 75202
Karl W. Koen
PC
2711 N. Haskell, Suite 2000
Dallas, TX 75204
GRAU KOEN,
John C. Nohinek
Richard J. Byrne
LAW OFFICES OF JOHN C. NOHINEK
LLP
Dallas, Texas 75244
50 I W. George Bush Freeway, Suite 310
Richardson, TX 75080
EKV ALL & BYRNE,
~<KEY
DEFENDANT SHELTER MUTUAl, INSURANCE COMPANY'S
PAGE9
53
STATE OF MISSOURI
)
COUNTY OF BOONE
)
SS.
AFFIDAVIT
The undersigned, first being duly sworn, for and on behalf of Shelter Mutual Insurance
Company, James R. Tuley (Affiant), states:
1. That I am a corporate attorney for Shelter Mutual Insurance Company and as
corporate attorney I have personally knowledge of the following facts and
such facts are true and correct.
2. That Shelter Mutual Insurance Company's home office is located at 1817
West Broadway, Columbia, Missouri 65218.
3. That the reinsurance business conducted by Shelter Mutual Insurance
Company in Texas is conducted through brokers.
4. That premium paid by the Texas insurance companies is first provided to the
broker and Shelter Mutual Insurance Company's portion or share is then sent
to Shelter.
5. That claims from the Texas insurance companies are first reported to the
broker and Shelter Mutual Insurance Company's share of the claim, along
with supporting documentation, is then sent to Shelter.
6. That communication with the brokers is typically through email, letters, or
telephone calfs. In some instances Shelter gains access to infonnation by
going to the broker's ftp sites.
1
54
7. That Shelter Mutual Insurance Company has seven accounts that are
brokered by Willis Re (2), Guy Carpenter (3), and AON Benfield (2) out of
their respective Dallas offices.
8. That Shelter Mutual Insurance Company has three accounts brokered by
AON Benfield out of their Chicago office.
9. That Shelter Mutual Insurance Company has two accounts brokered by AON
Benfield out of their Atlanta office.
10. ThaJ Shelter Mutual Insurance Company has one account brokered by AON
Benfield out of their MN office.
11. That Shelter Mutual Insurance Company has one account brokered by
Towers Watson out of their San Francisco office.
12. That Shelter Mutual Insurance Company has one account brokered by Axiom
out of their Schaumburg, IL office.
13. That Shelter Mutual Insurance Company has one account brokered by Axiom
out of their Stoney Creek, NC office.
14. That Shelter Mutual Insurance Company has one account brokered by Willis
Re out of their NC office.
15. That Shelter Mutual Insurance Company has two accounts brokered by W.J.
Lehrke out of their MN office.
16. That the assigned underwriter to the territory may attend one or two industry
conferences in Texas annually.
2
55
17. That
the
assigned
underwriter
may
occasionally
conduct
an
Underwriting/Claim review or audit on some of the smaller Farm Mutuals.
Further affiant saith not.
Subscribed and sworn to before me this
P
day of
~
.
~Oil .
Notary Public
My commission expires
I I~ 19- ~ d I 'I
KAREN S. ROHRER
Notary Publlo - Notary Seal
STATE OF MISSOURI
County of Boone
My Commlsaion Expires 11/1812014
Commlsalon ## 10452155
3
56
EKVALL
& BYRNE, L.L.P.
ATTORNEYS AND COUNSELORS
4450 SIGMA ROAD
SUITE 100
DALLAS, TEXAS 7n44
JEREMY W. MCKEY
TELEPHONE (972) 239~839
FACSIMU..E(972) 960-9517
March 23, 201 I
ViaE-File
Clerk
l41h Judicial District Court
600 Commerce Street, 5th Floor, New Tower
Dallas, Texas 75202
Re:
Cause No. DC-l 0-10499
Dallas County Hospital District v. Allstate Property, et al
Our File No. 21-157
Dear Clerk of the Court:
Enclosed please find Defendant Shelter Mutual Insurance Company's Brief in Support of
Special Appearance in connection with the above-referenced matter. Please file the original with
the other papers in this cause.
By copy of this correspondence, same is being provided to the known counsel of record in
accordance with the Texas Rules of Civil Procedure. Thank you for your assistance in this matter.
Sincerely,
!
----
Jeremy W. McKey
JWM/asm
Enclosures
cc (w/encl.):
Douglas Turek
Sean A. Clemmensen
William Lance Lewis
Courtney N. Kano
Carlos A. Balido
Karl W. Koen
John C. Nohinek
Richard J. Byrne
Via Facsimile No. (281) 296-0733
Via Hand Delivery
57
''"--------------~
II
•
..
•
..
c
."'
•
•

received - 5th Court of Appeals

Transcription

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