Northshore Regional Medical Center, L.L.C. d/b/a Northshore Regional Medical Center VS Edith Ruth Dill, Brian Dill, Atlas Travel Insurance Services Limited and Global Excel Management, Inc.
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STATE OF LOUISIANA 1496W CaIs1e1 Ia W FIRST CIRCUIT NO 2011 CA 2271 NORTHSHORE REGIONAL MEDICAL CENTER L C dba NORTHSHORE REGIONAL MEDICAL CENTER VERSUS EDITH RUTH DILL BRIAN DILL ATLAS TRAVEL INSURANCE SERVICES LIMITED GLOBAL EXCEL MANAGEMENT INC Judgment Rendered June 8 2012 On Appeal from the 22nd Judicial District Court In and for the Parish of St Tammany ub n State of Louisiana Trial Court No 2009 16791 Honorable William J Knight Judge Presiding Mark W Verret Philip G Smith Dax C Foster Brett M Bollinger Jeffrey E McDonald Attorneys for Plaintiff Appellant Tenet 100 Medical Center Slidell L C formerly known as NorthShore Regional Medical Center L dba NorthShore C Regional Medical Center Metairie LA Robert E Kerrigan Jr Attorneys for Defendant Appellee Jonathan M Walsh White Horse Insurance Ireland Limited New Orleans LA Christine Y Voelkel Attorneys for Defendants Appellees Jacques F Bezou Covington LA Edith Ruth Dill and Brian Dill Ernest E Svenson Attorney for DefendantAppellee Global Excel Management Inc New Orleans LA BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J 2 HIGGINBOTHAM J In this appeal a Louisiana hospital challenges a judgment that dismisses its claims against a nonresident travelhealth insurance underwriter for lack of personal jurisdiction For the following reasons we amend the judgment and affirm as amended FACTUAL AND PROCEDURAL BACKGROUND The pertinent facts surrounding this case are undisputed Edith Ruth Dill and Brian Dill are citizens of the United Kingdom from Lancashire England The Dills purchased a travel health insurance policy from a British corporation Atlas Travel Insurance Services Limited da Atlas Direct Atlas b with a coverage period of February 11 2006 to January 11 2007 White Horse Insurance Ireland Ltd White Horse an Irish corporation underwrote the insurance policy providing worldwide coverage that expressly included the United States Medical claims made under the policy in North America were administered by a Canadian corporation Global Excel Management Inc Global Excel The Dills were vacationing in south Louisiana in mid November 2006 when Ms Dill became extremely ill She was admitted for urgent treatment of a severe medical condition that required emergency surgery and hospitalization for further treatment at NorthShore Regional Medical Center L d a NorthShore C b in Slidell Louisiana Ms Dill remained Regional Medical Center NorthShore hospitalized at NorthShore for more than two months until she was transported via 1 Much of the factual background is taken from the allegations in the petition which are accepted as true in the context of an exception raising the objection of personal jurisdiction unless contradicted by opposing affidavits See Lifecare Hospitals Inc v B W Quality Growers Inc 39 La App 2d Cir 10 887 So 624 630 writ denied 2004 2935 La 065 04 27 2d 05 4 2 893 So 872 2d 2 s NorthShore brief indicates that the hospital is currently known as Tenet 100 Medical Center Slidell L However because the record does not contain evidence of the name change and C all pleadings as well as the judgment refer to the hospital as NorthShore Regional Medical Center L db a NorthShore Regional Medical Center for clarity and simplicity we refer C to the plaintiff as NorthShore 3 air ambulance to a hospital in England on January 24 2007 The final cost of Ms s Dill medical treatment at NorthShore was 1 08 229 256 In response to NorthShore request White Horse through Atlas andor s Global Excel verified the Dills travel health insurance coverage and initially authorized and remitted a partial payment of 309 which was sent by 31 498 Global Excel to NorthShore on behalf of White Horse on February 13 2007 Because no other payments were made despite written demand NorthShore filed suit on November 13 2009 for the balance due on open account for medical services rendered plus judicial interest attorney fees and costs NorthShore named the Dills Atlas Travel and Global Excel as defendants and subsequently on February 3 2010 added White Horse as a defendant in a supplemental and amending petition The record does not reflect that any defendant has filed an answer However White Horse filed a declinatory exception raising the objection of lack of personal jurisdiction in response to NorthShore spetition White Horse maintains that it is an Irish underwriter of an English travel insurance policy issued by an English insurance company to two English travelers White Horse further asserts that it has absolutely no contact with Louisiana does not solicit or conduct business advertise or underwrite any policies of insurance in Louisiana and has no employees or offices in Louisiana Therefore White Horse argues that the exercise ofpersonal jurisdiction over it is unconstitutional and unsupported by law In support of its exception White Horse offers two sworn affidavits of its Finance Director David Gleeson Gleeson declaring in pertinent part that White Horse 1 is licensed to do business in Ireland not Louisiana 2 has a registered office in 3 A suit on open account is subject to a prescriptive period of three years See La C art 4 3494 4 The parties refer to the exception as dilatory rather than declinatory however we note that an exception to the jurisdiction of the court is a declinatory exception See La Carts 923 and P 5 A 925 M Dublin Ireland not Louisiana 3 does not underwrite any policies of insurance or insure any risks in Louisiana 4 does not directly advertise in Louisiana 5 has no officers managers directors shareholders or employees located in Louisiana 6 does not transact any business in Louisiana and 7 has had no contact with NorthShore regarding Ms Dill In contrast NorthShore contends that White Horse authorized Ms Dill s medical care through the North American claims administrator Global Excel by verifying the insurance coverage and by making a significant partial payment toward Ms Dill medical expenses at NorthShore in Louisiana s offers no evidence as to the timing or the form of communication by telephone call fax or letter NorthShore whether it was regarding the verification of coverage but argues that the verification and partial payment constitute sufficient minimum contacts for a finding of personal jurisdiction over White Horse in Louisiana NorthShore also asserts that White Horse could reasonably foresee or anticipate that it might be subject to a Louisiana court jurisdiction since it was the underwriter of a travel s health insurance policy that was issued with a worldwide coverage area that specifically included travel to the United States The trial court heard the exception on May 25 2011 issued reasons for judgment on June 24 2011 and signed a judgment on July 20 2011 sustaining the exception and dismissing NorthShore sclaims against White Horse with prejudice In written reasons the trial court relied primarily on federal jurisprudence in its discussion of the constitutional requirements jurisdiction over nonresident defendants for the exercise of personal Ultimately the trial court particularly emphasized a federal district court decision St Luke Episcopal Hosp v s Louisiana Health Service Indem Co No HWL 47125 S 2009 1870 08 D 5 The record contains two Gleeson affidavits one is dated June 18 2010 and the other is dated January 18 2011 Roth affidavits were attached as exhibits to White Horse original and s supplemental memoranda filed in the record in support of its exception of lack of personal jurisdiction 5 Tex 1 and the cases cited therein to find that the facts at best point to a 09 6 single contact by White Horse with Louisiana Relying on the reasoning set forth in St Luke Episcopal Hosp the trial court held that the single act of s authorizing a partial payment to NorthShore was not a sufficient contact nor an affirmative act that amounted to a purposeful availment of the benefits of conducting activities in Louisiana so as to subject White Horse to personal s jurisdiction in Louisiana The trial court further found that White Horse act of authorizing partial payment to NorthShore was simply a response to an insured s unilateral decision to travel to Louisiana and seek medical attention while here as a result of illness NorthShore appeals urging three assignments of error 1 the trial court erred in determining that there was no constitutional basis for exercising personal jurisdiction over White Horse 2 alternatively the trial court erred in prematurely granting White Horse exception of lack of personal jurisdiction and 3 s alternatively a proper jurisdictional analysis for travel insurance policies issued by foreign insurers and underwriters requires new law or a different application of existing law MOTION TO STRIKE In addition to its brief in opposition to NorthShore assignments of error s White Horse filed a motion to strike NorthShore appellate brief or portions of the s brief White Horse complains that NorthShore brief does not cite to record s references and raises new arguments in assignments of error two and three for the first time on appeal in violation of Uniform Rules Courts of Appeal Rule 2 12 4 and Rule 1 3 respectively We find that NorthShore sfailure to cite references in the record by page number is not of such significance that it compels us to strike its brief Additionally all of NorthShore sassignments of error are related to the trial s court reasons for judgment and the merits of the ultimate legal issue before this rol court whether a Louisiana state court can properly exercise personal jurisdiction over White Horse under the facts of this case The sanction permitted to be imposed for a non conforming brief is left to our discretion Williams v Fischer 439 So 1111 111 La App 1st Cir 1983 When reviewing the trial court 2d 2 s legal analysis or conclusion we must render any judgment which is just legal and proper upon the record on appeal regardless of whether a particular theory was made argued or decided by the trial court See La C art 2164 P Under the circumstances of this case we find that striking NorthShore brief or portions of s the brief would be unreasonably harsh Accordingly we deny White Horse s motion to strike LAW AND ANALYSIS In reviewing a judgment on an exception of lack ofpersonal jurisdiction the factual findings underlying the judgment are reviewed for manifest error Bridges v Mosaic Global Holdings Inc 2008 0113 La App 1st Cir 1024 23 08 3d So 305 314 writ denied 2008 2783 La 2 1 So 496 However the 09 20 3d application of established rules of law to the facts involves a purely legal question Id Thus appellate courts use a de novo standard of review to determine the legal issue of whether a Louisiana court may exercise personal jurisdiction over a nonresident Southeast Wireless Network Inc v U Telemetry Corp 2006 S 1736 La 4 954 So 120 125 Broussard v Diamond Aircraft 07 11 2d Industries Inc 2010 1611 La App 1st Cir 5 65 So 187 189 Based 11 3 3d on our review of the record we find no real dispute as to the facts related to the jurisdictional issue before us and therefore we review this purely legal issue de novo We begin our analysis by examining Louisiana longarm statute La s S R 3201 13 which controls when a Louisiana court may assert personal jurisdiction over a nonresident defendant Louisiana Revised Statutes 13 was 3201 7 amended in 1987 to extend personal jurisdiction under Louisiana long arm s statute to the fullest limits allowed by due process Southeast Wireless Network 954 So at 124 2d Since the 1987 amendment the sole inquiry into jurisdiction over a nonresident in Louisiana is whether the assertion of personal jurisdiction complies with constitutional due process Fox v Board of Sup of Louisiana rs State University and Agr and Mech College 576 So 978 983 La 1991 2d The Louisiana long arm statute La R 13 provides for the exercise S 3201 of personal jurisdiction over a nonresident defendant as follows A A court may exercise personal jurisdiction over a nonresident who acts directly or by an agent as to a cause of action arising from any one of the following activities performed by the nonresident 1 Transacting any business in this state 2 Contracting to supply services or things in this state Causing 3 injury or damage by an offense or quasi offense committed through an act or omission in this state 4Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business or engages in any other persistent course of conduct or derives revenue from goods used or consumed or services rendered in this state Having 5 an interest in using or possessing a real right on immovable property in this state 6Non support of a child parent or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state Parentage 7and support of a child who was conceived by the nonresident while he resided in or was in this state 8 Manufacturing of a product or component thereof which caused damage or injury in this state if at the time of placing the product into the stream of commerce the manufacturer could have foreseen realized expected or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer smarketing practices B In addition to the provisions of Subsection A a court of this state may exercise personal jurisdiction over a nonresident on any basis 8 consistent with the constitution of this state and of the Constitution of the United States Personal jurisdiction may be asserted as long as due process is not offended In Bridges 23 So at 31 15 this court outlined the due process test as it was 3d 4 first enunciated in Int Shoe Co v State of Washington 326 U 310 320 66 l S Ct S 154 160 90 L 95 1945 stating that due process requires the Ed nonresident defendant to have certain minimum contacts with the forum state such that maintaining a suit against the defendant does not offend traditional notions of fair play and substantial justice Finding minimum contacts is the first 3d part of what has evolved into a two part test See Broussard 65 So at 190 Once minimum contacts are established the second part of the due process test involves consideration of the contacts in light of other fairness factors to determine whether it would be reasonable to require the nonresident defendant to defend the lawsuit in the forum state See Burger King Corp v Rudzewicz 471 U 462 S 476 78 105 S 2174 218485 85 L528 1985 Ct 2d Ed The minimum contacts prong of the two part due process test is satisfied by a single act or actions by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state thus invoking the benefits and protections of its laws Broussard 65 So at 190 quoting A 3d oting L Energy Inc v Pegasus Group 2000 3255 La 6 791 So 1266 1271 cert 01 29 2d denied 534 U 1022 122 S 550 151 L 426 2001 citations omitted S Ct 2d Ed However this purposeful availment must be such that the defendant should reasonably anticipate being haled into court in the forum state Id The rationale behind the purposeful availment requirement is to ensure that the nonresident defendant will not be haled into a jurisdiction solely as a result of a random fortuitous or attenuated contact or by the unilateral activity ofanother party or a third person Id Emphasis added 66 Additionally in Broussard 65 So at 191 we recognized the well 3d established distinction between two types of personal jurisdiction general and specific jurisdiction A state has specific jurisdiction over a defendant when the suit arises out of or is related to the defendant contacts with the forum state and s the defendant purposefully avails itself of the privilege of conducting activities in the forum state See Panavision Intern L v Toeppen 141 F 1316 1320 P 3d 9th Cir 1998 Helicopteros Nacionales de Colombia S v Hall 466 U A S 408 414 n 104 S 1868 1872 n 80 L Ed 2d 404 1984 8 Ct 8 A state has general jurisdiction over a defendant when the defendant is domiciled in the forum state or its activities there are substantial or continuous and systematic even though the contact with the forum state is not related to the cause of action Helicopteros 466 U at 414 16 104 S at 1872 S Ct See also Omega Hosp C L v Board of Trustees of State of North Carolina Teachers and State Employees Comprehensive Major Medical Plan No 08 1575 2008 WL 4286757 at 3 E La 9 D 08 16 The evidence presented in the record before us reveals that White Horse does not have sufficient minimum contacts to satisfy the requirements for specific jurisdiction and even less so for general jurisdiction In fact White Horse does not have any contacts with Louisiana aside from the alleged communication regarding verification of insurance coverage and the partial payment that was accomplished through the claims administrator Global Excel That limited contactcommunication however was not solicited or initiated by White Horse Instead the verification was made solely in response to NorthShore initiating an s inquiry about Ms Dill health insurance coverage and was the product of the s mere fortuity that NorthShore is located in the state where the Dills unilaterally decided to travel and where Ms Dill happened to seek medical treatment after becoming ill Compare Omega Hosp 2008 WL 4286757 at 4 IN oting Moncrief Oil Int Inc v OAO Gazprom 481 F 309 312 5th Cir 2007 l 3d andom 1r fortuitous or attenuated contacts are not sufficient to establish jurisdiction Insurers are obligated to carry out the insurance contract no matter where treatment is sought therefore the fact that White Horse acknowledged through its claims administrator its obligation to pay pursuant to the insurance plan if Ms Dill sought treatment at NorthShore is not purposeful availment See Whittaker v Medical Mutual of Ohio 96 F 1197 1200 D Kansas 2000 2d Supp To allow the exercise of personal jurisdiction on this slight contact which was initiated by a third party would offend the traditional notions of fair play and substantial justice See Perez v Pan Am Life Ins Co 96 F 1442 1996 WL 3d 511748 at 2 5th Cir 32096 unpublished NorthShore makes much of the fact that the subject of the verification communication process was coverage under a travelhealth insurance policy Thus NorthShore argues that all parties contemplated that the Dills would travel and could possibly have a medical claim anywhere in the world where the policy provided coverage including the United States However NorthShore does not provide any legal authority for its contention that White Horse is essentially conducting business or maintaining sufficient contact in whatever forum where the Dills choose to travel and possibly incur medical expenses The only contact that White Horse is alleged to have had with Louisiana was directly related to the Dills unilateral decision to travel to Louisiana To allow such a contact to satisfy the purposeful availment requirement does not properly focus on the intentional conduct of the defendant White Horse See Alaska Regional Hosp v Amil Intern Ins Co No A03 177 CV QWS 2003 WL 24085347 at 3 D Alaska 11 5unpublished 03 11 The foreseeability that is critical in the due process analysis of minimum contacts is whether the defendant intentional conduct and connection with the s forum state are such that the defendant should reasonably anticipate being haled into court there WorldWide Volkswagen v Woodson 444 U 286 297 100 S Ct S 559 567 62 L 2d 490 1980 NorthShore fails to provide evidence to Ed rebut Gleeson affidavits and to establish that White Horse engaged in affirmative s or proactive conduct in Louisiana such as attempting to expand sales to Louisiana or otherwise develop commercial activity in Louisiana Compare Choice Healthcare Inc v Kaiser Foundation Health Plan of Colo 615 F 364 370 3d 5th Cir 2010 White Horse authorized the partial payment because the insured Ms Dill independently and without encouragement from White Horse presented to NorthShore for urgent care and extensive medical treatment while visiting Louisiana Compare Id While we agree that White Horse as a travel health insurance underwriter could reasonably anticipate that the Dills would travel to some destination in the United States and possibly need medical treatment while in the United States there is no reason for White Horse to have reasonably anticipated being sued in Louisiana White Horse had no reason to think that the terms of the policy it had underwritten would be disputed in whatever forum the Dills happened to be in when one of them needed medical attention See Hall v Scott 416 So 223 2d 230 La App 1st Cir writ granted 420 So 978 La 1982 the fact that the 2d insured person would foreseeably travel to another state and be involved in litigation was not a sufficient contact to satisfy d p requirements on ue oocess a suit in contract See also Alaska Regional Hosp at 4 A health insurance policy is typically sued upon where the insured resides Id The cause of action in this case arises from the insurers failure to pay the full amount that NorthShore charged following its treatment of Ms Dill There is 12 no dispute that the insurers tendered a significant partial payment to NorthShore through the claims administrator Global Excel However the weight of federal jurisprudence holds that the act of verifying insurance coverage and of making partial payments by a nonresident insurer is insufficient to confer personal jurisdiction See Choice Healthcare 615 F at 36971 discussing federal 3d district court decisions refusing to assert personal jurisdiction even when the insurer makes more than one payment or the insurer is aware that the insured is seeking treatment in the forum state See also St Luke Episcopal Hosp at 4 s 7 and Whittaker 96 Fat 1200 2d Supp s NorthShore cause of action is ultimately based in contract relying on an insurance policy that the Dills negotiated and executed with Atlas and White Horse in England The record does not contain evidence of or even an allegation that the Dills executed an assignment of benefits to NorthShore Thus the coverage dispute is ultimately between the Dills and their insurers Atlas and White Horse all of whom are nonresidents of Louisiana By underwriting the insurance policy White Horse has not purposefully availed itself of the privilege of conducting business or activities in Louisiana so as to subject itself to suit on open account for medical services rendered to its insured in Louisiana See Alaska Regional Hosp at 45 We conclude that White Horse has insufficient contacts with Louisiana to allow NorthShore suit to continue in this forum s The trial court correctly 6 The record is devoid of evidence or allegations that NorthShore ssuit is the result of some tortious act such as economic loss caused by negligent misrepresentation committed in Louisiana by White Horse against NorthShore But even if there was evidence of the tort of negligent misrepresentation it appears that any cause of action in tort would be prescribed in this case Even so several federal cases have held that the mere fact that the nonresident insurer communicated with the healthcare provider in the forum state and may have committed a tort in the exchange of correspondence does not show that the insurer purposefully availed itself of the privilege of conducting business in the forum state See Choice Healthcare 615 F 3d at 370 Hunt v Erie Ins Group 728 F 1 1247 48 9th Cir 1984 But see Lifecare Hospitals 2d 244 Inc v B W Quality Growers Inc 39 La App 2d Cir 10 887 So 624 632 065 04 27 2d writ denied 20042935 La 2 893 So 872 where personal jurisdiction was conferred 05 4 2d against a nonresident insurer whose agent negligently misrepresented the insured insurance s coverage to a healthcare provider thereby causing economic loss However we need not resolve the personal jurisdiction issue in the tort context because the facts of the case sub judice are limited to a cause of action based in contract 13 sustained White Horse exception s s NorthShore first assignment of error is without merit We also find no merit in either of NorthShore alternative assignments of s error NorthShore contends that the trial court should have allowed more time for NorthShore to amend its petition to cure the jurisdictional defect as to White The decision to allow a plaintiff to amend its petition is within the Horse discretion of the trial court See Mentz Const Services Inc v Poche 2010 0904 La App 4th Cir 1 54 So 1221 1225 10 22 2 3d We do not find that the trial court abused its discretion in this regard NorthShore was given the opportunity but failed to conduct jurisdictional discovery or to offer any evidence of activity on the part of White Horse to controvert the grounds ofthe exception at the hearing on the declinatory exception which had already been continued several times Thus NorthShore failed to adequately establish a right to further delay to attempt to remove the grounds of the objection and this alternative assignment of error is without merit See Smith Stag L v Wilson C Meyer Custom Theater Interiors L 2008 1251 La App 4th Cir 2 6 So 921 925 C 09 18 3d Mitchell v Terrebonne Parish School Board 20021021 La App 1st Cir 03 2 4 843 So 531 534 writ denied 2003 2275 La 11 860 So 2d 03 26 2d 1135 However we do find that the trial court dismissal of White Horse with s prejudice was improper The trial court did not have the authority to issue a judgment that bars NorthShore from bringing its cause of action against White Horse as a separate claim in a proper forum See A Fuselier Bonding Service Inc v 11 6 Perez 20101416 La App 3d Cir 4 62 3d So 296 302 Accordingly we amend the trial court judgment to reflect that NorthShore s s claims against White Horse are dismissed without prejudice See Smith Stag C 3d L 6 So at 925 dismissing the claims without prejudice allows the plaintiff 14 to refile its suit against the defendant in a proper forum so as to confer personal jurisdiction As for NorthShore final alternative assignment of error suggesting that this s court apply a new approach to analyzing personal jurisdiction in the context of nonresident insurers marketing travel health insurance policies we decline the invitation to overhaul the traditional well established framework outlined in this opinion for analyzing personal jurisdiction s NorthShore contention that it is necessary to adopt a new approach or new law for personal jurisdiction issues involving travel health insurers is more properly addressed by the Legislature This alternative assignment of error is without merit CONCLUSION For all of the assigned reasons White Horse motion to strike portions or s the entirety of NorthShore sbrief is denied The trial court sjudgment sustaining White Horse declinatory exception raising the objection of lack of personal s jurisdiction and dismissing NorthShore sclaims against White Horse is amended to dismiss NorthShore claims without prejudice and is affirmed as amended s All costs of this appeal are assessed to plaintiffappellant NorthShore Regional Medical Center L dba NorthShore Regional Medical Center C MOTION TO STRIKE DENIED JUDGMENT AMENDED AND AFFIRMED AS AMENDED 7 We note that although a judgment of dismissal without prejudice does not bar the filing of another suit on the same cause of action it does terminate the instant suit with respect to White Horse See La C art 1673 Batson v Cherokee Beach and Campgrounds Inc 470 P 2d So 478 480 La App 1 st Cir 1985 15
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