Insurance Companies Do Not Play Fair

Law360 (January 15, 2021, 8:19 PM EST) — Allstate is facing a proposed class action brought on behalf of as many as 10,000 Texas lawyers and law firms, accusing the insurer of routinely putting forth unqualified experts to delay justice and drive up court costs.

The Estes Law Firm, a personal injury firm based in Richmond, Texas, says it’s among thousands of Texas law firms that have wasted time and resources over the last four years responding to the reports and testimony of three “unqualified” expert witnesses used by Allstate Fire and Casualty Insurance Company.

The firm sued Allstate and the expert witnesses who it says repeatedly “put out information which is untrue and fraudulent” — Marc Chapman, Rhonda Guitreau and Jana Schieber — seeking at least $1 million in damages in Harris County District Court on Thursday.

The firm alleges Allstate is trying to “drive up the cost of justice for the citizens of the state and enhance its own profitability at the expense of injured people.”

“Allstate, in an effort to harass, delay and bully plaintiffs and their lawyer, intentionally ignore the requirements of Chapter 18 and hire unqualified people to prepare so-called controverting affidavits in areas they have no knowledge, skill, training, education or experience,” the Estes Law Firm alleges.

Under Chapter 18 of the Texas Civil Practice and Remedies Code, a plaintiff seeking to recover medical expenses can file an affidavit by the person who rendered the service, stating how much it cost. The Estes Firm argued in its petition that the chapter was “created to streamline litigation” and the purpose of allowing an affidavit to be filed is to “avoid the necessity of bringing witnesses to testify” about the reasonableness and necessity of medical bills.

A defendant wanting to controvert a claim in such an affidavit must prepare a counter-affidavit made by a qualified expert in the particular field, it said.

The firm alleged Allstate is ignoring the requirements and continues to file counter-affidavits from unqualified experts. Chapman, according to the lawsuit, runs a consulting firm and has served as a “reimbursement manager” at a hospital but is not a doctor. The firm argues he has “absolutely no qualifications to opine about the reasonableness of medical bills.”

“Despite knowing this, Allstate continually hires Chapman to prepare controverting affidavits and offer opinions that medical bills for plaintiffs are too high,” the suit argued, adding that Chapman’s affidavits and opinions “have been struck by almost every court in Texas.”

Schieber worked as a nurse in the 1990s but regularly opines about the billing rates for orthopedic surgeons, orthopedic doctors, chiropractors, radiologists and others, the Estes Firm alleged, noting her controverting affidavits also are “repeatedly and continually struck” by Texas courts.

Guitreau represents as a “medical billing expert consultant,” but her background is in hospital administration, and her controverting affidavits also are routinely struck, the suit alleged.

The proposed class would include all Texas firms that have represented clients against Allstate over the past four years and “spent time and resources responding to improper controverting affidavits filed by Chapman, Guitreau and/or Schieber.”

The lawsuit brings claims for fraud and civil conspiracy.

Ryan Higgins of Rusty Hardin & Associates LLP, who represents the Estes Firm, told Law360 on Friday that in researching to file suit it was easier to find cases where controverting affidavits from the three experts were allowed to go forward than to list all the cases in which they had been struck.

“I think they want to make it known that it’s going to be difficult to deal with Allstate … obviously, they haven’t admitted anything to us, but there’s no other reason that I can think of as to why you would do that, with respect to putting up affidavits that you know are going to get struck,” he said.

Messages left with the Estes Firm and with Allstate seeking comment were not returned Friday.

The Estes Law Firm is represented by Daniel Dutko, Rusty Hardin and Ryan Higgins of Rusty Hardin & Associates LLP.

Counsel information for Allstate, Chapman, Guitreau and Schieber was not available Friday.

The case is The Estes Law Firm et al. v. Allstate Fire and Casualty Insurance Company et al., case number 2021-02383, in the 157th District Court of Harris County, Texas.

–Editing by Gemma Horowitz.