*1 deliberately issue, mitigation special special mitted as this terms is [sic] but Jury actually presented in defined Instructions. His issues that were in psychological, emotional, jury applicant’s jury trial. The did interper- and not have the benefit of this when sonal of evidence deficits at time the offense special it decided the I think the issues. represented impediment active majority wrong grant is to not the relief consideration; thorough “careful and and, to not and requested especially, file by characterized of the conse- awareness ground set this for briefs review willful, slow, quences; unhurried, and by closer look the entire Court. steady though as time allowing for deci- sion.” Although applicant’s trial counsel to develop present failed evidence that probability 2. The en- that Brent would special was relevant to the that the in issues gage future acts of criminal violence jury used applicant to sentence the continuing would constitute a threat death, majority puts stamp ap- of society prison while is considered proval applicant’s on the death sentence (1.61 quite to be per low. offenses inquiry. without further omission Counsel’s capital per year). Further, offenders undermines confidence in the of result probability substantially less than that punishment phase of the I applicant’s trial. represented by systemwide inmates dissent. prison system. the Texas Brent would not, then, be expected to dispropor-
tionate risk of violence in prison. probability
The that Brent would com-
mit future acts of criminal violence that a continuing constitute threat SERVICES, FINANCIAL REVIEW if
society paroled serving after a capital INC., Appellant, life sentence is also considered be low.
3. techniques and research litera- necessary ture to reach the above con- The PRUDENTIAL INSURANCE clusions were May available in 1991 at AMERICA, COMPANY OF the time of Brent’s trial. Appellee Application for Appellant, Psy- Exhibit No. 14-96-01121-C V. chological Evaluation Factors relevant Texas, Appeals Court of to Capital Sentencing, at Ex parte (14th Dist.). Houston Brewer, No. 587-01. Sept.
Evidence that was highly relevant to the
special issues and that could have been
presented at trial was available. Dr. Cun-
ningham’s conclusions based on a applicant’s
1. At time spe- of the trial the criminal acts violence that would consti- cial issues were: continuing s society. tute threat to (1) Whether the conduct Deliberately defendant was defined as "a manner of that caused the death of the deceased was doing resulting an act characterized deliberately committed and with the rea- consideration; thorough from careful and expectation sonable that the death of the characterized awareness of the conse- deceased or another would result. willful, slow, unhurried, quences; steady proba- Whether was a there reasonable though allowing as time decision.” bility that the defendant would commit *4 Riedmueller, Houston, (2) insureds; Norman ap- fused to the claims on its pellants. maligned FRS to its insureds (3) personnel; HCA Prudential ha-
Craig Wolcott, McConn, Jr., S. James J. representatives rassed HCA with sham au- Stevenson, Houston, appel- Susan C. unreasonable, dits and bad faith demands lees. (4) tactics; pressure trig- “Prudential Panel consists of Chief Justice gered patient complaints by uselessly stir- MURPHY and Justices HUDSON and ring up patients pretexts under adopted FOWLER. justification;” with no started false rumors about FRS which
MAJORITY OPINION (or known) Prudential knew should have would reach —and intended to reach— FOWLER, Justice. management. Regarding HCA the contract Appellant, Financial Review Services claim, FRS claimed that FRS and Pruden- (FRS), appellee, sued The Prudential In- agreement tial reached an that an audit of America, Company surance for breach govern some of FRS’s work would whether *5 of contract and tortious interference with Prudential pay the remainder of contractual and relationships. business A facts, FRS’s bills. The following plus some partial summary judgment against FRS additional throughout facts related the re- was trial, followed a directed verdict at opinion, mainder of the form the basis for in resulting a take-nothing judgment in our conclusions on these issues. favor of Prudential on all claims. FRS appeals, raising points three of error. We in auditing FRS is the business of hospi- affirm partial the summary judgment, con- tal bills—after the initial bills have been cluding that duty Prudential owed no to paid determine whether additional —to claims, FRS to including those at amounts are owed for sup- services and lawsuit, issue and affirm the trial plies that were not initially billed. FRS court’s directed verdict on FRS’s of breach hospitals perform contracts with these claim, contract concluding that FRS failed in exchange services for of 50% all collect- present probative evidence that Pruden- charge ed “late principals bills.” The of tial agreement. breached an We reverse Lewis, president, FRS are its Mike and its and remand FRS’s tortious interference officer, chief financial Sheryl Kapella, who disposed claims not summary of is a nurse. hired and trained other judgment, because pre- we conclude FRS nurses to work for auditing sented FRS some bills support evidence these claims. of its hospital clients. In June FRS entered into two six-month contracts with Background hospitals affiliated with Hospital Corpora- (HCA) tion of America Hospital FRS went to trial with —Woman’s two causes of of Hospi- Texas and HCA Medical Center action: tortious interference with business collectively tal—known as the and contractual HCA Center relations and breach of (CHE).1 contract. The tortious claim Health Excellence The con- interference had components: five Prudential re- tracts were executed Mike Lewis and time, already 1. At that FRS had contracts this suit. with two other HCA not at issue in Gilbert, initially chief financial officer of the Prudential denied claims
John documentation, contracts, additional in- hospitals. sought Under these two FRS hospitals’ complete records for appointed agent cluding medical was as evaluate, identify, patients. disputed and collect for ser- To resolve bill Allen, January Liz rendered In Connie Clark and Pru- vices at an- conducted an audit of employees, the contracts were renewed for dential randomly claims out period. dispute sample six-month Before this ten selected other arose, pend- was payments totaling ninety FRS received claims.2 While the audit ing, put payment two a hold on well over million on the CHE con- Clark these $1 ninety charge In June an late claims. remaining tracts. FRS entered into contract with identical six-month another audit (cid:127)Allen conducted on-site at hospital, Regional Hospi- HCA Rio Grande Hospital on April Woman’s Ka- tal. pella present was also at the audit. Pru- Prudential, insurer, com- dential Allen was unable to large medical was asserts Hospital plete audit because approve payment asked to some of Woman’s charge hospital’s for which denied her access bills determined master, computerized listing prices were owed. The dis- additional amounts hospital’s supplies. for a services and With- at issue in this case centers around pute master, charge Allen could not approximately two hundred claims out the batch whether the billed amounts Hospital from Woman’s FRS submit- determine by the or FRS.3 hospital in bulk to in the fall of 1991. were calculated ted bills, addition, complains late In response the FRS *6 letters, not the hospital’s charging as ex- to obtain Prudential sent form known able (EOB), included protocols to in- to determine what was planations benefits hospital charge. in a When the persons particular to the covered of the sureds advise to charge of the Pru- master was made available Pru- disposition status and claims. 1992, the conduct- follow-up later letters to its dential in June auditors dential sent over several also communicated ed second on-site audit insureds. Prudential Gilbert, days. They FRS billed for had included a letter discovered with who hospital’s charge in stating that items not included the billing patients with master, had used its own and it instead expenses had not been billed for charge hospital “pack- used him that master. charged. Prudential advised aged charges” many and or “level for pricing” that first be billed required patient items, Prudential FRS im- for the ex- and claimed financially considered liable had been for items that give properly further consid- billed penses before it could origi- hospital’s included previously eration to claims. but, willing pay for items or Originally, was not to were other ac- master. It there Prudential, many cording of the claims should have that FRS concluded services Compaq employees Computer, were for charge were mas- been billed but not on who was and for whom self-insured Pruden- on, hospi- ultimately, the ter. we note later As merely as an administrator tial had served not to bill that FRS was for tal’s CEO stated Compaq an- process claims before retained charge that were not on the services or items other insurer. master, although between HCA the contract point. FRS and FRS was not clear on important question 3. This was an to Pruden- for apparently believed it could bill these tial, only that it who maintained items. hospital's charge on the for services and items Novak that in March 1992. testified separately plaints bills.4 FRS also for nal billed (a) nursing, position disrupted hospital, and Prudential took the complaints previously nursing charges (b) that had been business office was the staff charges. in room Pru- (c) included and board work, pa- both unable to do their those also maintained that matters dential upset. first physicians tients and She separate charges not listed as on the hos- Gilbert, negotiated with met who not pital’s charge charged master could FRS, signed try with the contracts audit, its insureds. As a result of the him a resolve the also sent issue. She important reached conclu- Prudential two unacceptable stating memo that it First, charge sions. FRS’s late claims were not included in the FRS to bill for items supported by hospital documentation hospitals’ charge masters.5 also second, overpay- it had a net made met with Novak to discuss her concerns. rather than the substantial under- ment certain Kapella agreed to delete items Based payment claimed FRS. on these the late bills. Novak instruct- from conclusions, ultimately rejected Prudential ed FRS not to bill for items were not and, thereafter, ninety remaining all claims hospital time services were charges at the the HCA terminated their rela- decided stop rendered. Novak later tionships with FRS. believed Pruden- FRS from out further bills or sending FRS termination, tial caused the but Prudential CHE other than doing any work for disagreed. audit. In August related to the ten-case HCA asserts that terminated 1992, Novak fired as chief financial Gilbert relationships pa- based 9, 1992, officer of CHE. On October Novak and physician tient made to complaints FRS, terminating a letter to sent CHE’s hospitals’ example, business office. For relationship expressly She with FRS. de- Morris, patient manager Wanda account caused her nied to termi- Woman’s testified Hospital, she re- relationship nate the between FRS and daily ceived calls from who were CHE. why they confused as to had received a bill years hospital stay, meantime, after their two when In the after FRS had pre- *7 they thought paid. the been bill had She pared charge the late bills under the con- complaints the (RGRH) testified volume of resulted with Rio HCA tract the Grande undue her burden on staff. In addi- mailed, but before the bills had been Wil- tion, complaints the record to the shows Burns, chief liam RGRH’s executive offi- by patients by hospital other com- insured cer, Novak that learned from Woman’s panies patient complaints and to the Bet- Hospital relations public problem had a ter Business Bureau. and its with FRS had terminated services. late Novak, put charge billing Burns the RGRH the executive officer
Judith chief CHE, patient eventually first of eom- with on hold and program learned FRS practice meeting billing separately immediately for items with so [Lewis] 4. The of Mike charges described included in other as "un- we can resolve this issue. bundling charges." of My agreement they go FRS was with charges back and review and those items sent a to Gilbert on March memo charged not for would be billed to the in- 13, 1992, which stated as follows: billing company. This of surance 12, 1992, brought my On March was to charge was not that were not on our master charging that FRS items attention part my agreement with FRS. charge totally I find on our master. not unacceptable you and I want to schedule a defense). program justification terminated the before FRS ever defeat the On the Thus, motion, any sent late bills. out FRS of the second trial court basis only not lost business with the two Hous- granted partial summary judgment, ton HCA but with the Rio also part provides which in relevant as follows: Grande HCA. The concludes as a matter of law Court FRS contends Prudential caused all of Plaintiff no that has cause of action for this, damaged purposely and that it FRS’s tortious interference for Defendant’s business and contractual relations with pay failure to the claims owed allegedly consequence, HCA. As a FRS filed suit by Defendant on behalf of its insureds against Prudential for tortious interference identified Plaintiff. and The Court with its and contractual relations business that duty concludes Defendant no owed and the HCA three HCA to obligation pay Plaintiff to claims or previously, As asserts Pruden- noted FRS pay to claims at issue this lawsuit. (1) tial doing following: interfered concludes that Defen- The Court further (2) bills; refusing maligning FRS’s right had an communi- dant absolute (3) personnel; FRS to and HCA its regarding cate with insureds representatives harassing HCA with sham against in- claims that were billed unreasonable, audits and bad faith de- policies; and that Defendants sureds’ (4) tactics; mands pressure triggering and to communications were limited [sic] patient complaints; starting and false information requested regarding that rumors FRS intended to reach about services rendered statements HCA. that paid; [sic] benefits Defendants summary judg- Prudential moved for particular num- were not limited to ment, of its con- alleging none actions ber of communications to their insureds. stituted tortious interference and that its Court also concludes that Defen- legally justified. actions re- FRS dant’s communications its insureds sponded that its action depended cause of interference, may constitute de- tortious malice, on whether Prudential acted with pending on the of the communi- content presented which a factual determination addition, concludes cations. Court jury. for the After Prudential filed its mo- right Defendant an absolute tion, hearing, but before amended bills, object questions to the [sic] petition to add a contract breach bills, generally about complain claim, agreement on the alleged based billing. late-charge practice results of audit of bills of ten communications Defendant’s Whether *8 govern the remainder of tor- hospitals could have constituted judge billing dispute. The trial denied con- depends on the tious interference summary Prudential’s first motion for tent of the communications. judgment. remaining types of then for four filed a second motion issues—the of con- renewing its earlier and breach summary judgment,' alleged interference a proceeded to trial before arguments adding and new Texas Su tract claim— case, the plaintiffs close authority supporting justi jury. At the of preme Court Prudential’s motion granted fication See Cattle Co. trial court defense. Texas Beef (Tex. 203, remaining tor- Green, v. 921 S.W.2d 211-12 directed verdict both 1996) and jury’s claims the breach (holding finding tious interference resulted. appeal was and contract claim. This actual malice immaterial did
503 Summary Judgment justification where The Partial defense was conclusive established); ly Corp. Sny Helena Labs. v. error, point FRS’s first der, (Tex.1994) 767, 886 S.W.2d 768-69 contends the trial court erred in a granting (holding summary judgment that the partial summary judgment. Our standard proper because there is no cause of action of a summary judgment review granted family relationships). for interference with for a defendant is summary whether the judgment establishes, proof as a matter of protects existing law Texas law, that there genuine is no issue of mate prospective contracts from interference. rial fact as to one or more of the essential Co., See Sterner v. Marathon Oil 767 plaintiffs elements of the (Tex.1989). cause of action. 686, But, party S.W.2d 689 Perez, Siegler, See Lear Inc. v. 819 S.W.2d alleging tortious interference with a con 470, (Tex.1991); 471 v. Gibbs General Mo prove tract the following must four ele (Tex.1970). 827, Corp., (1) tors 450 S.W.2d 828 ments to sustain its claim: a contract (2) The movant has the exists; burden to show that subject to interference the al genuine there is no issue of material fact leged act of interference was willful and (3) intentional; and that it is judgment entitled to as a the willful and intentional (4) matter of law. Property proximately See Nixon v. Mr. act damage; caused Co., Management 546, 690 damage S.W.2d 548-49 actual or loss occurred. See ACS (Tex.1985). Investors, summary To obtain Inc. v. judgment McLaughlin, 943 S.W.2d 426, defense, (Tex.1997); based on 430 Anthony affirmative the defen Pools v. David, Inc., dant conclusively 666, must Charles & all 797 668 establish ele S.W.2d 1990, (Tex.App.—Houston ments of the [14th Dist.] affirmative defense. See writ Cath denied). Booth, (Tex. ey v. 900 S.W.2d
1995). The elements of tortious interfer notes,
As rightly partial sum- prospective ence with a contract or busi mary judgment merely established the fol- relationship ness frequently are recited as (1) lowing undisputed facts: (1) following: probability reasonable failed to pay claims based on the FRS late parties that the would have entered into a (2) bills; (2) Prudential communicated relationship; contractual an intentional (3) with its bills; insureds about the Pru- and malicious act the defendant objected dential bills, questioned prevented the relationship from occurring, them, and investigated and complained purpose harming with the plaintiff; (3)no procedure both about the used justification to deter- privilege or on defen mine the bill practice amounts and the act; of dant’s part to do the late charge billing general. ruling, In its existence of damage actual harm or result the trial effectively court found that Pru- ing from the defendant’s interference. See dential’s denial Zimmerman, of the claims at issue was Grace v.
justified because it legal right had the (Tex.App.—Houston [14th Dist.] no deny questionable writ); claims and to communi- Corp. Allsup, Exxon cate with its insureds regarding those bills. (Tex.App.—Corpus Christi *9 denied). As presents this conclusion question a of writ Supreme Texas Court law, must, therefore, we justification determine wheth- has since held that is an affir er the trial court reached a proper legal mative defense to claims of interference See, e.g., conclusion. Friendswood prospective Dev. Co. with business relations. See Co., 280, v. + Gonzalez, McDade 928, 926 S.W.2d 283 Calvillo v. 922 929 S.W.2d (Tex.1996) (affirming summary (Tex.1996); judgment see also Robles v. Consolidated
504 Inc., 552, 11 did. If Prudential had a
Graphics, only 965 S.W.2d 561 n. colorable 1997, (Tex.App. pet. grant- Dist.] court have legal right, [14th the could not — Houston denied). Therefore, being rather than judgment summary ed because the the case, the it plaintiffs element of is now the legal good, issue a faith assertion of a of Calvillo, prove. defendant’s burden to See jury question. a right be Robles, 929; at 965 at 922 S.W.2d S.W.2d 561, 11. n. regard complaint to FRS’s With conclude, bills not we paid, Justification is based on either court, as did the trial that Prudential had (1) legal rights, exercise of one’s own right vis a vis not to legal a good a claim to colorable or faith no third claims. This is because there is ulti legal right, though even claim party of action in for bad faith cause Texas and, mately proves be mistaken even insurance claim. See Trans denial of an may ill though the defendant harbor will Faircloth, 269, port v. 898 S.W.2d Ins. Co. plaintiff. Beef, Texas 921 toward See (Tex.1995); Maryland 279 see also Ins. Co. Consequently, at 211. if the trial S.W.2d Services, Inc., Coatings v. Head & Indus. laiv court finds as a matter (Tex.1996) (holding that an 938 27 S.W.2d right had legal defendant a interfere and fair duty good owes no faith contract, insurer a then the defendant has with justification investigate claims conclusively dealing and defend established Therefore, If is ir a happens, party). defense. motivation third Prudential owes jury question Id. A is presented dealing relevant. no faith fair duty good legal that no only when court decides to FRS for FRS and cannot not liable 6 exists, right to interfere but defendant reason, reject For this we bad faith. a produced has evidence of nevertheless hold application of FRS’s cited authorities faith, mistaken,' belief in a col- good albeit duty fairly have a to deal ing that insurers Malice, will, legal Id. ill right. orable good and in faith their insureds. See motivation are relevant factors in de Co., 881 Packer v. Travelers Indem. justification if the termining defendant 172, (Tex.App. [1st S.W.2d 174 — Houston Id.; Calvillo, legal right. acts to assert a writ); 1994, Dist.] no Pioneer Chlor Alkali at 922 S.W.2d Co., 920, v. Indem. S.W.2d Royal Co. 879 1994, (Tex.App. Dist.] 938 [14th Returning partial summary judg- to the — Houston writ). ment, no if properly granted only it was correctly determined that Pru-
trial court legal right party has no If a third legal than a colorable dential more pay its insured’s and, instead, require an insurer to legal right had the right, —as also cannot third party that it then the a matter of law—to take actions from bad faith recently insulate itself Supreme Texas Court has clar surer cannot 6. The recovery investigating in bad faith liability by ified standard a claim in manner an insurer breaches its cases held that pretextual basis construct a calculated to dealing duty good by denying 448; faith and fair Nicolau, Na at 951 S.W.2d denial. See liability claim insurer's has be when the Dominguez, Ins. v. 873 Fire Co. tional Union Ins. reasonably come clear. See Universe (Tex.1994); Life Lyons v. Millers S.W.2d 376 Giles, 1997). (Tex. 56 Co. v. 950 S.W.2d Co., (Tex.1993). S.W.2d 601 Cas. Ins. 866 establishing only a bona cover Evidence fide in bad faith because an insurer acted Whether age dispute demonstrate bad faith. does not delayed payment of a claim after denied or Nicolau, Lloyds v. S.W.2d See State Farm reasonably clear is a fact liability became (Tex. 1997); Transportation Ins. Co. Giles, question. at 56. See Moriel, (Tex. 1994). An in
505 sue the insurer pay for tortious interference Prudential’s failure to claims on behalf of its insureds. paying by for not the bills generated insured’s medical care. The Fifth Circuit Nevertheless, may have conclusion, holding reached this that a bad claim for tortious interference based on brought by faith claim party third cannot in Prudential’s communications to both its be recast as a tortious interference claim. it sureds and the Whether does Contractors,
See Tacon Mechanical
Inc. v. have a cause of action depends upon their
Co.,
486,
Aetna Cas. & Sur.
65 F.3d
488
insureds,
to
content. As
(5th Cir.1995).
recognize
To
FRS’s tortious
duty
maintains
has a
under the Texas
interference claim based on Prudential’s
Insurance
Code
communicate with them
failure to
insurance claims would effec
to acknowledge receipt of a claim and to
tively
any
advise them of
circumvent the
actions taken with re
permit
law
a bad
spect
the claim. See Tex. Ins. Code Ann.
party.
faith claim a third
(Vernon
§§
art. 21.55
Supp.1998).7
appeal
On
FRS has claimed that Pru- And, giving truthful information to a third
right
deny payment
dential’s
of the
party
improper
does not constitute
inter
claims
on
depended
validity
of the late
ference with contractual
Ro
relations. See
charge bills. It argues that since the validi- bles,
(citing
faith investigate on claims behalf of its hospitals, As to the Prudential also had insureds. We hold that the trial court cor- notify the right assignees them as the rectly ruled that FRS has no cause of for payment of the claims them in- action for however, tortious interference Again, based privilege sureds.8 is th 7. The provides Insurance Code in relevant day later than the 15 business after items, part: date the insurer receives all state ments, insurer, required by (a) forms [below], Except provided Sec. 2 as an proof in order to secure final shall, of loss. day insurer not later than the 15th (Vernon §§ Tex. Ins. Code Ann. art. 21.55 receipt after of notice of a claim or the 30th Supp.1998). applies Article 21.55 to "all day business if eligible the insurer is an Sep- claims filed with the insurer on or after surplus lines insurer: 6, 1991, tember 1991.” Act of June 72d (1) claim; acknowledge receipt of the R.S., 13.09, Leg., § ch. 1991 Tex. Gen. (2) any investigation commence of the Septem- Laws 1134. A claim filed before claim; and 1, 1991, governed by ber law items, request from the claimant all existed at the time the claim was filed. Id. statements, and forms that the insurer believes, time, reasonably at that will be 8. The record shows the followed the required from the claimant. Additional industry practice standard where ex- requests may during be made if the inves- (AOB) Assignment ecute an of Benefits to the tigation of the claim such additional re- hospitals as a condition of Under admission. quests necessary. are AOB, patient assigns an the benefits under policy plan medical or insurance to the (a) [below], Except provided Sec. 3 as hospital, hospital effectively and the stands notify writing insurer shall a claimant in patient collecting pay- the shoes of the acceptance rejection hospitalization. of the claim not ment insurance claims for *11 506 fact, relationship in with the
qualified. principal, In conceded contractual Prudential motion, summary judgment “prob- tortiously may interfering its not be liable for justifica- ably only qualified second, a defense of separate a contract between with to the with applied tion” communications and principal agent. the its It asserted it nevertheless We also conclude Prudential’s au good a matter of its faith as established thorities, which to establish that purport Beef, disagree. As in Texas law. We stated absolutely justified, its actions were are jury question presented a is when is there Sterner, controlling. 767 See S.W.2d legal only good a faith belief in a colorable (holding at 691 that because there was case, at In this right. 921 S.W.2d evidence the defendant’s interference in communications should be evaluated directing a contractor to dismiss an em their con- the fact finder for the truth of was not in the bona ployee done fide ex part as of the determination tents rights, ercise of defendant’s the de good whether Prudential acted faith. justification failed to its fendant establish analysis Prudential asserts law); a Lee v. as matter of Levi defense no claim unnecessary because there can be Co., (Tex.App.—El & 505 Strauss under these facts. tortious interference writ) so no (holding P a We have reviewed Prudential’s cited au interference that a manufacturer’s with find distinguishable.9 thorities and them a employment contracts of thread allege argues Prudential that FRS cannot per former who supplier’s employees had hos tortious interference is the because justified unsatisfactorily formed be if pitals’ agent, and even legitimate had a cause manufacturer hospitals agreement breached with management in the interest business claims, recover pay medical FRS cannot suppliers). its by that derivatively when it is harmed Skinner, conclusion, v. Holloway court, breach. See 898 In the trial we like (Tex.1995) (holding that 796 S.W.2d a claim for tortious find no absolute bar act contracting party’s agent employee or these facts. interference based on We cannot interfere ing party’s in the interests ruling agree with court’s contract); N Inter party’s with LA & allege interference based cannot tortious Fish, ests, v. 748-49 Inc. S.W.2d of the late non-payment on Prudential’s 1993, no (Tex.App. Dist.] [14th may but that Prudential — Houston writ) plead failure of (holding, based on a its upon com- liable based the content agent that a ing proof, real estate in- munications of action tortious interference no cause Therefore, point we overrule sureds. buyer buyer when the breach against error one. broker, thereby with the ed his contract commission). agent a Howev denying the Directed Verdict er, authority, find no we point of er none, FRS’s second party that a third holding has cited Prudential, ror, trial court it asserts that erred separate has a such as who balancing agreements gas unpersuaded by owners' FRS's citation interests 9. We are also distinguishable contrary breaching factually operators by authori its “take with well owners, ty, Nat’l Co. Transcon coercing American Petroleum pay” contracts with the Pipe Corp., Line tinental Gas through pressure to settle owners economic (Tex. 1990) (holding pipe company line claims). outstanding working tortious liable for interference *12 granting a directed verdict on tortious mented the medical records. She testi- reviewing interference In claims. point fied she was able to to the verdict, granting of an instructed we must specific page the records where determine any whether there is evidence disputed were documented. items She tes- probative force to raise a fact issue on very upset tified that she was questions the material presented. See company insurance accused her in front of Co., Szczepanik v. First S. Trust 883 hospital administration of double bill- (Tex.1994); S.W.2d 649 Collora v. Na ing fraudulently billing for undocu- varro, (Tex.1978). We mented items. She testified she had earlier all in light consider of the evidence a most gone each item ten over billed on the cases favorable to the party against whom the audited Liz Allen and found some verdict was instructed disregard and all original mistakes on both the and the bills inferences; contrary give evidence and we bills, late charge but the result was that losing party the benefit of all reason approximately dollars was still owed $300 by able inferences created the evidence. on the ten cases. Co., See White v. Southwestern Bell Tel. Thirdly, argues FRS ha- Prudential (Tex.1983). If there is representatives rassed HCA with sham au- any conflicting probative evidence of value unreasonable, dits and bad faith demands theory recovery, an instructed pressure points tactics. FRS to several improper
verdict is and the case must be by support acts Prudential that claim. reversed and remanded jury for determi First, Kapella testified she felt Pruden- nation of that issue. Id. fact, audit a origi- tial’s sham. she The trial court allowed a claim for nally impression was under the that Liz interference based on by communications agreed Allen charges with the FRS Prudential hospitals to the and its insureds expected approval payment she for short- go forward. pleadings FRS’s set out five Instead, ly. contrary to her initial impres- types of interference committed Pru sion, the Prudential audit went on over dential. already We have determined the seven example months. As another of bad partial summary judgment correctly dis demands, points faith FRS to Prudential’s posed of the first one—Prudential’s failure demand copy patient’s for a of each entire pay FRS’s bills.10 record, medical when internal records re- vealed no intent the bills. These
Secondly, FRS provided asserts that it demands forced FRS to send Prudential support evidence to its claim that Pruden- medical records patients, tial on hundreds of maligned patients FRS to and HCA personnel, requested sometimes Prudential orally both writing. and in It patients’ same records several Ka- points correspondence times. where falsely pella Prudential testified Prudential informed accused the hos- FRS double pital that billing referring billing charges thousands of dollars of items that medically had “previously unnecessary. been Prudential la- Kapella considered.” virtually testified to how ter denied all maligned charges. Prudential FRS’s An FRS personnel. to HCA She said that in her internal memo showed Prudential demand- Novak, master, first meeting with ac- ed access to the hospitals’ charge billing cused her of although items not docu- it was aware most did major presented 10. The appropriate. focus of the evidence billed were at trial was whether the late In relevant Managers. part, access. found that Claim allow such hospital charged often if for the memo states: bill, original Pru- type same item on become Recently we have aware of claim but later paid dential had denied firm, (FRS), Review Financial Services charge. did not similar FRS retrospective *13 which providing is reviews always figures the use the correct from retrospec- These hospitals. various when hospitals’ charge stating master FRS pa- tive both out reviews involve for items. to Ka- overcharged According range tient confinements time pella, seriously did not consider January 1990 the period through from counsel, any charges. FRS’s former FRS cases, the present. charges In most late Johnston, Mike that Prudential’s testified original equal the billed or exceed that it have to counsel threatened individuals amount. Several have con- bring all the whose bills tacted that and received assurance FRS to Pruden- involved into the lawsuit force attempt the will not to collect hospitals tial to pay. any by the paid amounts not Insurance Kapella also testified Prudential’s Company. re- policy audit manual showed was to As the in our files indicates information
lease the due and hold the 80% of benefits patient financially responsible is not results, the audit but remaining pending suggest we would charges, the late that it its own policy did not follow on FRS as follows: handling adversely practice claims. affected the This 1) charges. Exclude addition, hospitals’ problems. cash flow Prudential denied some of testified 2) the attached letter to the Send out charges hospital’s original on the based hospital. It should sent to requiring hospi- audit. stated She hospital Financial Officer of the Chief a pay tals back benefits received had to copy to in- with a carbon company’s relationship bad effect on her (Attachment A) sured/member. with its customers. 3) Upon receipt hospital records pres- also claimed that Prudential FRS patient notification and/or stop to using sured the FRS billed, at- send out the has been According refusing non-FRS bills. to the tached letter insured/member. FRS, a placed this tactic financial strain (Attachment B) Morris, Wanda Woman’s A is a form letter the chief Attachment Hospital’s accounts testi- patient manager, hospital notifying financial officer of fied she knew of at least three non-late hospital patient billed that the must be charge accounts on which Prudential with- financially liable for and considered the bill payment dispute. held because of the FRS claim. before Prudential will consider the specifically large recalled one Pruden- She requested copy a of the letter also $100,000 payment tial claim of over where complete patient. records for the medial was withheld. B a form letter be sent to Attachment Finally, to show Prudential acted questionnaire, with a which the insured outset, deny payment intent from the following: asked the copy into a introduced evidence also accept hospital agree 1. Did the dated of memorandum November full payment payment as insurance Mary Taylor, Claim Consul- from Prudential, for all Group to all Health services? tant at Yes/No no, you 38.1(h); 2. If App. have been billed for the late briefed it. See R. P. Tex. (see attached) Home, not paid Happy Methodist Inc. v. Harbor your insurance? copy (Tex. Please attach a Cowins, 886-887 any billings received. writ). App. [1st Dist.] no — Houston 3. Were all the per- attached services We cannot consider claimed harm
formed? from the exclusion of evidence based on Yes/No no, partial summary judgment If order in the please explain. assigned absence of properly and briefed 4. Additional Comments: Contractors, error. See Tacon Mechanical Kapella testified Prudential did not inform Metal, Inc., Inc. v. Grant Sheet position her that it was their that the bills (Tex.App. [14th Dist.] — Houston paid would not be patient unless the *14 denied). 1994, writ addition, been billed. disagreed she that charge the late original bills exceeded the In summary, we conclude that bills. this evidence amounts to more than a scin type The fourth of interference FRS tilla of evidence to create an inference of alleged was that pretexts Prudential used tortious interference on FRS’s claims. In to purposefully agitate patients and there- conclusion, spite of this still by trigger patient complaints. ac- argument makes an negate that would lia knowledged patient that complaints kept bility: Prudential claims directed verdict in, pouring months after the last bills had on the tortious interference claims was been in sent December 1991. The testimo- correct because there is no evidence of ny was that most bills processed are from agree causation. We that FRS has the days But, 45 to 90 after being sent. in this burden to show there is some evidence case, Prudential prolonged process by Prudential was the in cause fact of the continuing correspond with the patients termination of FRS’s contractual relations. beyond the standard EOB letter. For ex- Cause in fact cannot be established ample, Prudential sent its insured what is conjecture, guess, mere speculation. See „as letters,” “delay termed notifying them Texas., Inc., v. McClure Allied Stores of that no decision had been reached on the (Tex.1980). 901, 608 S.W.2d 903 The test claim. These letters continued to be sent in fact cause is whether the defendant’s period over a It months. later wrote conduct was a bring substantial factor in that charges previously had been con- ing injury about the without which the sidered, implying that consti- harm would not have occurred. See Pru tuted double billing. Novak testified that Associates, dential Ins. Co. v. Jefferson this allegedly additional unnecessary cor- Ltd., (Tex.1995). 896 S.W.2d 164 Even respondence hurt it because de- injury if the happened would not have but pend repeat business and do not want conduct, for the defendant’s the connection their upset. between the defendant plaintiffs and the alleged last interference was injuries simply may be too attenuated to false rumors Prudential started about legal constitute cause. Pump See Union However, FRS. the main problem with this Allbritton, (Tex.1995). 898 S.W.2d 776 claim, out, as points most of fact, this any evidence was excluded. The second As with ultimate cir problem with claim that FRS does not cumstantial evidence and the inferences point out is that alleged FRS neither therefrom form a sufficient basis for point of Russell, error on the exclusion or properly finding of causation. See Russell v. phone to a call (Tex.1993); points FRS also Havner v. FRS.”
865 S.W.2d Betta, in manager an HCA business Stores, Inc., Ron 825 S.W.2d E-Z Mart Florida, Western to Jacobs HCA’s (Tex.1992). is whether The issue here “Prudential reported that Group. Betta reason- any from which there is evidence rebills” from concerns about had some draw an inference able minds could e-mail to Michael Jacobs sent an CHE.11 in fact of was a cause Prudential’s conduct RGRH, in Choate, chief financial officer Havner, at injury. See FRS’s is a which stated: “FRS October are consistent If the circumstances bills for patient that will review however, company facts, either of two not use this missing charges. Do under and probable more that one is nothing shows questions have you firm. If should other, fact can be then neither than the copied The e-mail was please call me.” Faircloth, at 278. inferred. Region. in the HCA Western all CFO’s to considerable evidence Prudential cites during the initial Kapella testified it was not contentions that supporting its audit, late Allen discussed she and troubles with in fact of FRS’s the cause to her Allen commented general. firms pro- that it agree We the HCA all firms like to see that Prudential “would but, evidence, under our duced substantial *15 out of business.” go ours [FRS] like verdict, we are to review of directed and inferences only the evidence consider Johnston, attorney hospitals’ Mike That evidence the non-movant. supporting FRS, attempted represented who also that support an inference enough Pruden- bills from charge collect the late hospi- with the contractual relations FRS’s contingent arrange- fee on a tial based pressure based on tals were terminated hospitals that the He testified ment. Lewis, example, For from Prudential. FRS’s displeasure with expressed never in an internal wrote president, FRS’s neg- only complaint was the and the work Novak’s unilat- in March “Ms. fact, memo In problem. relations public ative because of our contract abrogation eral job at the Kapella a had offered Novak quite will be from Prudential pressure Furthermore, hospital never hospital. to continue.” if does not allow us costly she funds insur- paid of the returned in to Lewis October from Gilbert A letter Johnston charge late bills. ers on FRS me that “Joey informed 1992 states Jacobs administrators hospitals’ that the testified Insurance Com- him of Prudential about employee their concerns expressed Finan- delayed pay- the word that spreading pany nonpayment was Prudential’s (FRS) performed claims, has from the FRS apart Review Services cial ment of other Hos- neither at HCA Woman’s testified that charge a late audit He also charges. late Pru- Houston, was that and that FRS were aware Texas he nor his clients pital its insureds billing for charges and had sent letters billing for dential double in- charges normally all the Hospital them that informing Woman’s had been charge bills being in the late allegations Due to the cluded did not bill. He testified Prudential, stated considered. Joey previously Jacobs made of her informed to when Novak made the decision DiLorenzo that Joe Larry complaints, patient concerns about hospitals the Western HCA prohibit that, Nettles, attorney, stated Prudential’s with doing any business Region from company, Prudential. not from he tor audit repeated what asserts Betta 11. Prudential independent contrac- another had heard from
5H before Prudential would sample govern pro- case audit would all the would be required cessing of the balance of FRS’s outstand- brought By into the lawsuit. letter dated ing late bills from CHE. its oral 26, 1993, April verdict, Novak him that informed motion for directed Prudential as- hospitals pursue had “decided not to agreement proved; serted that no was is, the Prudential matter related to Financial there no a mutual evidence of Review Services audit.” Johnston testified understanding and no evidence of consid- nothing he did addition, further on behalf of FRS eration. In it asserted there was because the claims were those of the two no breach. There is no evidence in the hospitals and anything FRS “could not do form of written documents from Prudential unilaterally.” He subsequently notified that it consented to agree- be bound to the hospitals that the decided not ment alleges. wrote, to pursue the claims. He “I hope To determine a party whether this will foster better relations between agreement, consented to the terms of the the hospital and Prudential respect objective we rely must standards of timely payment of claims in fu- what was said and upon done and not ture.” party’s subjective state of mind. See Gor Gilbert, John CHE’s finan- former chief Shuler, (Tex. din v. officer, cial testified that after Novak ter- n.r.e.). App. writ refd — Dallas him, minated signed he a contract with clear, terms of an oral contract must be FRS to receive 10% of FRS collections for Baker, certain and definite. See Gannon v. arranged that he to hire FRS. He (Tex.App . —Houston approached six hospitals, HCA but had no denied). alleged [1st writ If an Dist.] got shoulder,” success. When he the “cold *16 oral agreement is so indefinite that it is he learned that there was word out that impossible for a court to fix legal obli hospitals should not deal with FRS. He gations and liabilities parties, of the it later had success with a former HCA hos- cannot constitute an enforceable contract. pital and other non-HCA Id.; Stinger see also v. Stewart & Steven After disregarding support- the evidence Servs., Inc., (Tex. son verdict, ing the directed as we must under App. writ [14th Dist.] de — Houston standard, the appropriate we conclude that nied). there is at least a inference reasonable However, even if there is some evidence sufficient a to raise fact issue as to wheth- to support agreement the existence of an actions, er Prudential’s primarily through pay charges all the late on the based communications, its were a substantial fac- audit, outcome of the ten-case was FRS tor in causing to terminate provide unable to evidence that this al- their contractual relations with FRS. We leged agreement was failed breached. FRS hold the trial in directing court erred a establish the ten claims were re- against verdict FRS on its tortious inter- it, favorably thereby triggering solved Therefore, point ference claims. we sustain obligation Prudential’s pay the rest of of error two. The claims. results of the ten-case error, clear;
In its third point FRS audit are not the review of the directing asserts the trial court erred in a charges continued for at least seven verdict on alleged admitted, its contract claim. FRS months. “the audit was that Prudential breached the parties’ per kept going never se finalized. This on agreement the outcome of the ten- and on and on.” Kapella also testified she appellee statutorily required to make audit with was reports,
received three different speedy on whether or shoving all decision the third one PRS rejected the I though were Even the audited claims. When disallowed. had to patients may appellee provide have believe also some one or two records for rejection. I explanation for the Because undercharged, shown Prudential as- FRS established, believe as matter of appellee serted of all ten cases showed that the net law, justification, defense of overpaid, it denied the affirmative short, pro- respectfully was I dissent. claims. In unable to Pruden- any probative vide evidence that agreement.
tial such an We hold breached correctly a verdict trial court directed
against its breach of contract FRS on point
claim. three is Accordingly, error
overruled. conclusion, affirm the sum- partial we below, mary af- judgment entered and we Henry NOVAK, Appellant, J. firm the directed verdict FRS’s breach of contract claim. We reverse the directed CANCER CEN M.D. ANDERSON claims verdict on the tortious interference Mendelsohn, M.D.; TER; John and remand those causes action through 10, Appel John Does Nos. opinion. proceedings consistent lees. Justice, HUDSON, dissenting. No. 03-99-00150-CV. generated transmit- appellant When Texas, Appeals Court of policyholders, ap-
ted to appellee’s invoices Austin. obliged pellee legally accept reject timely in a claims manner. such Tex. 9, 2000. March (Vernon Supp. Ins. Code Ann. art. 21.55 June Released for Publication 1998). conducting investigation, After the bills either appellee concluded *17 previously paid.
unfounded or had been rejected appellee
Accordingly, policyholders and the af-
notified both forth
fected and set its reasons hospitals, rejection. Appellee appellant’s contends interfered with its con- tortiously
actions hospi-
tractual relations with number of
tals. an affirmative defense to
Justification is with contractual rela-
tortious interference Green,
tions. Cattle See Texas Co. Beef (Tex.1996). 203, 211 It based S.W.2d (1) legal exercise of one’s own either the a color-
rights good-faith claim to though that claim legal right,
able even Here,
ultimately proves to mistaken.