United States District Court, N.D. Texas, Amarillo Division
MATTHEW J. KACSMARYK UNITED STATES DISTRICT JUDGE.
April 12, 2019, the United States Magistrate Judge entered
findings and conclusions on Defendant's Partial Motion to
Dismiss Plaintiffs Amended Complaint. (ECF 15). The
Magistrate Judge RECOMMENDS that Defendant's motion (ECF
15) be GRANTED in part and DENIED in part. Defendant filed
objections to the findings, conclusions, and recommendation
on April 26, 2019 (ECF 31), to which Plaintiff responded on
May 10, 2019 (ECF 34). Defendant filed a reply in support of
its objections on May 24, 2019.
making an independent review of the pleadings, files, and
records in this case, the findings, conclusions, and
recommendation of the Magistrate Judge, Defendant's
objections, Plaintiffs response, and Defendant's reply,
the Court concludes that the findings and conclusions are
correct in part. It is therefore ORDERED that the findings,
conclusions, and recommendation of the Magistrate Judge are
ADOPTED in part and that Defendant's Partial Motion to
Dismiss Plaintiffs Amended Complaint (ECF 15) is GRANTED in
its entirety. The Court provides the reasons for its order in
the following analysis.
objections from April 26, 2019 (ECF 31), Defendant argues for
the dismissal of Plaintiffs Count I claims. Those claims
allege, among other things, violations of Texas Insurance
Code ("TIC") §§ 1271.155, 1301.0053, and
1301.155, known collectively as the "Emergency Care
Statutes," for failing to pay for emergency care
provided by out-of-network providers at the usual and
customary rate. Defendant argues that the Emergency Care
Statutes do not create a private right of action by which
Plaintiff can sue Defendant.
Texas law, a statute creates a private cause of action
"only when a legislative intent to do so appears in the
statute as written." Brown v. De La Cruz, 156
S.W.3d 560, 567 (Tex. 2004). This intent must be
"clearly expressed from the [statutory] language as
written." Witkowski v. Brian, Fooshee & Yonge
Props., 181 S.W.3d 824, 831 (Tex. App. 2005, no pet.).
"If the statute does not itself so provide, a private
cause of action will not be created through judicial
mandate." Stokes v. Sw. Airlines, 887 F.3d 199,
201 (5th Cir. 2018) (citing Ziglar v. Abbasi, 137
S.Ct. 1843, 1856(2017)).
the Emergency Care Statutes do not appear to clearly express
an intent to create a private right of action. This alone
would be sufficient in determining that they do not create a
private right of action. Plaintiff, however, offers several
arguments against this inference in its filings. The Court
now examines these arguments in light of Defendant's
responses to them and the applicable law.
both parties discuss this Court's finding in Atlantic
Casualty that Chapter 981 of the TIC does not create a
private right of action. See Atl. Cas. Ins. Co. v.
Primelending, A Plainscapital Co., No. 3:15-CV-1475-D,
2016 WL 1322235, at *4-5 *N.D. Tex. Apr. 5, 2016). But
nothing in Atlantic Casualty affects the Court's
analysis here. In that case, the Court noted the same legal
standards stated above for the creation of a private right of
action and found that "nothing in the language of
Chapter 981 reflects any intent to create a private right of
action." Id. at *4. To be sure, it provided
additional reasons for this conclusion, such as the fact that
Chapter 981 also provides that violations of it may be
punished under Chapter 82 and the fact that Chapter 981
specifically omits language from Chapter 541 that
does create a private right of action. Id.
at *4-5. But these reasons are merely supplementary.
That is to say, the Court's finding in Atlantic
Casualty neither requires nor rests upon them. The
simple fact that the language of Chapter 981 does not clearly
express a legislative intent to create a private right of
action was enough for the Court to find that it did not
create any such right.
both parties discuss three other cases involving the
Emergency Care Statutes. But none of these cases are
applicable to the Court's analysis here. In
Gilmour, the first of these cases, the court found
that the defendant "ha[d] failed to demonstrate that as
a matter of law that there is no private right of action
available under Section 1271.155(a) of the Texas Insurance
Code." Gilmour for Grant Trusts of Victory Parent
Co., LLC v. Aetna Health, Inc., No.. SA-17-CV-510-FB,
2018 WL 1887296, at *14 (W.D. Tex. Apr. 25, 2018). However,
the court's finding is only a statement about what the
defendant, who "cite[d] no authority for its
position," was able to demonstrate "based on the
current briefing." Id. It is not a statement or
restatement of the law more generally. Moreover, it is silent
about situations where, as in the instant case, authorities
have been cited to show that the Emergency Care Statutes do
not create a private right of action. Gilmour
therefore is readily distinguishable from the instant case.
remaining two cases, the courts held that the plaintiffs'
claims under TIC § 1271.155 survived summary judgment.
But this is irrelevant as to whether the statute creates a
private right of action. The Supreme Court has held that
"[w]hether a cause of action exists is not a question of
jurisdiction, and may be assumed without being decided."
Air Courier Conference v. Am. Postal Workers Union
AFL-CIO, 498 U.S. 517, 523 n.3 (citing Burks v.
Lasker, 441 U.S. 471, 476 n.5 (1979)). Thus, as this
Court noted in Atlantic Casualty, the mere fact that
a court allowed a plaintiffs claims to survive summary
judgment does not show that it found a private right of
action. See Atlantic Casualty, 2016 WL 1322235, at
*4 (declining to consider a decision cited by the plaintiff
that dismissed a Chapter 981 based on the merits because it
"did not explicitly consider whether the plaintiff had a
private right of action under Chapter 981 before rejecting
the claim on the merits" and denying that "the
court [was] obligated to do so").
both parties discuss whether the Emergency Care Statutes can
be analogized to TIC §§ 843.342 and 1301.137, known
collectively as the "Texas Prompt Payment
Statutes." Plaintiff contends that even though the Texas
Prompt Payment Statutes does not expressly create a private
right of action, courts have nevertheless found that it
creates a private right of action anyway. See, e.g., Lone
Star OB/GYNAssocs. v. Aetna Health Inc., 579 F.3d 525,
532 (5th Cir. 2009) (stating that the Texas Prompt Payment
Statutes "allow a physician or provider to collect the
contracted rate plus penalties for "payable" claims
that are not paid within a statutorily specified amount of
time"); Christus Health Gulf Coast v. Aetna,
Inc., 397 S.W.3d 651, 652, 654 (Tex. 2013) (explaining
that a provider may sue an HMO under the Texas Prompt Payment
Statutes if the parties are in contractual privity). But
Plaintiffs argument misstates the relevant legal standard for
determining if a statute creates a private right of action.
The standard is not whether it expressly does so, but rather
whether the statute clearly expresses a legislative intent to
do so. A statute can clearly express a legislative intent to
create a private right of action without expressly using the
phrase "private right of action," and this is
precisely what occurs in the Texas Prompt Payment Statutes.
Contracted litigants under TIC §§ 843.342 and
1301.137 are explicitly provided with attorney's fees.
See TIC §§ 843.343 and 1301.108 (stating
that physicians or providers "may recover reasonable
attorney's fees and court costs in an action to recover
payment under this subchapter"). This language clearly
expresses the legislature's intent to create a private
right of action, thereby differentiating it from the
Emergency Care Statutes. See Atlantic Casualty, 2016
WL 1322235, at *5 (quoting Brown, 156 S.W.3d at 568)
("Additionally, when the Legislature includes a right or
remedy in one part of a code and omits it in another, that
may be precisely what the Legislature intended.").
the Court FINDS that the Emergency Care Statutes do not
create a private right of action on the ground that they do
not clearly express a legislative intent to create such a
right. The Court therefore agrees with Defendant that
Plaintiff Count I claim pertaining to the Emergency Care
Statutes should be dismissed.
same objections (ECF 31), Defendant argues for the dismissal
of Plaintiff s Count II claim. This claim alleges the
violation of TIC § 541.060 for engaging in unfair
settlement practices. Defendant argues that Plaintiff does
not have standing under § 541.060 which it can sue
§ 541.060 prohibits the failure to attempt in good faith
to effectuate settlement where "the insurer's
liability has become reasonably clear," "with
respect to a claim by an insured or beneficiary."
See TIC § 541.060(a)(2)(A), (a). If the
insurer's liability can be established, "[a] person
who sustains actual damages" has a private right ...