Lee v. DCBS

Appeal Dismissed and Memorandum Opinion filed August 12, 2025. In The Fifteenth Court of Appeals NO. 15-25-00092-CV BRIGHT HEALTH MANAGEMENT, INC., Appellant V. CANTILO & BENNETT, L.L.P., SPECIAL DEPUTY RECEIVER OF BRIGHT HEALTHCARE INSURANCE COMPANY OF TEXAS, Appellee On Appeal from the 455th District Court Travis County, Texas Trial Court Cause No. D-1-GN-23-008361 MEMORANDUM OPINION The underlying case is an insurance receivership proceeding under Chapter 443 of the Texas Insurance Code, in which the Texas Department of Insurance (TDI) sought and placed Appellant Bright Health Management, Inc.’s subsidiary, Bright Health Insurance Company of Texas (BHICOT), into liquidation. Bright Health Management attempts to appeal the trial court’s May 6, 2025, order (the Order) that enforces a permanent injunction that was entered over two years ago and that requires Bright Health Management to produce certain books and records of BHICOT to the Special Deputy Receiver, Appellee Cantilo & Bennett, LLP (the Receiver). We issued a letter notifying the parties this appeal was subject to dismissal for want of jurisdiction because the record does not contain either a final judgment or an appealable interlocutory order unless any party filed a response showing meritorious grounds for continuing the appeal. See Tex. R. App. P. 42.3(a); Tex. Civ. Prac. & Rem. Code § 51.014(a); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Both parties submitted briefing on jurisdiction. After reviewing the parties’ briefing, the record, and the applicable law, we conclude we do not have jurisdiction and dismiss the appeal for want of jurisdiction. BACKGROUND In November 2023, the trial court signed an order appointing the Commissioner of the TDI as Liquidator of BHICOT and entered a permanent injunction ordering Bright Health Management to, among other things, promptly surrender BHICOT’s property to the Liquidator. The November 2023 order further authorized appointment of the Receiver to perform the Liquidator’s functions. Bright Health Management did not appeal the November 2023 order or the permanent injunction. A dispute later ensued regarding the practicalities and cost of turning over electronically stored documents that relate to BHICOT to the Receiver. The Receiver eventually filed a Motion to Enforce the Permanent Injunction and Bright Health Management filed a Response and Cross-Motion for Entry of Order 2 Governing Electronically Stored Information (ESI Cross-Motion). A hearing was held before the court-appointed Special Master, who issued a recommendation to the trial court. On May 6, 2025, the trial court confirmed the Special Master’s recommendation, granted the Receiver’s Motion to Enforce, denied Bright Health Management’s ESI-Cross Motion, and ordered Bright Health Management to produce certain categories of BHICOT documents to the Receiver. This appeal followed.1 DISCUSSION Bright Health Management first argues the Order is an appealable, interlocutory order because it “functions as a temporary injunction,” or alternatively, is an order that modifies an order appointing a receiver. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(1), (a)(4). We disagree. The Order simply enforces the November 2023 permanent injunction that requires Bright Health Management to promptly surrender BHICOT’s property. It does not grant any modified or additional authority to the Receiver. Bright Health Management next argues the Order is a final judgment because it resolves all issues between Bright Health Management and the Receiver regarding production of documents. We disagree that this characterization of the Order, even if correct, renders the Order a final, appealable judgment. The underlying proceeding is an insurance receivership, and the Order does not dispose of all parties and claims in the receivership action. See Lehmann, 39 S.W.3d at 1 Bright Health Management contemporaneously filed a mandamus action challenging the Order, which we denied. In re Bright Health Mgmt., Inc., No. 15–25–00108–CV, 2025 WL 1872554, at *1 (Tex. App.—15th Dist. July 8, 2025, orig. proceeding). 3 195. There are certain discrete decisions by insurance receivership courts that are considered final, appealable judgments, but the Order at issue here is not one of those. See Tex. Ins. Code §§ 443.055 (order on petition commencing delinquency proceedings); 443.257(c) (final disposition of a disputed claim). Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DESIREE DURGA and JUSTIN DURGA, UNPUBLISHED August 13, 2025 Plaintiffs-Appellees, 9:04 AM v No. 371891 Benzie Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 23-012025-CZ Defendant-Appellant. Before: O’BRIEN, P.J., and BOONSTRA and WALLACE, JJ. PER CURIAM. This action arises out of a motor vehicle accident that occurred in June 2023, when plaintiff Desiree Durga was driving a Chevrolet Silverado that was involved in a collision with another motor vehicle. This accident resulted in extensive damage to the Silverado, which was insured by defendant MemberSelect Insurance Company (MemberSelect). Plaintiffs alleged that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that Desiree Durga made a fraudulent misrepresentation in the application process. The trial court entered a July 2, 2024 amended order granting plaintiffs’ motion for summary disposition on their breach of contract claim pursuant to MCR 2.116(C)(10) and denying defendant’s cross-motion for summary disposition in which it had argued that it was entitled to rescind the policy. On July 9, 2024, the court entered an order of judgment in favor of plaintiffs in the amount of $82,476.04, and this appeal of right by defendant followed. We affirm. I. FACTS As a result of plaintiff Justin Durga having two or more substance abuse convictions in seven years, his Michigan operator’s license was mandatorily revoked from June 9, 2007 “until requirements have been met.” MCL 257.303(2)(c). -1-  In June 2012, plaintiff Justin Durga’s wife, Desiree, applied to obtain automobile insurance from defendant MemberSelect for a Jeep Grand Cherokee that she owned.1 According to plaintiff Desiree Durga, “[a]t that time I fully disclosed to AAA that my husband, Justin Durga, did not have a valid driver’s license.”2 Defendant’s insurance records reflect that plaintiffs have been “AAA Insured” since June 29, 2012. While defendant MemberSelect claims that Desiree Durga’s application for insurance contained a material misrepresentation, it has not produced a copy of her June 2012 application in this case. In response to a request for production of documents seeking to have defendant “[p]roduce the application for insurance that Plaintiff(s) filed with Defendants for the Policy,” defendant responded “This application for insurance no longer exists.” In the lower court, MemberSelect relied upon two documents, a “New Declaration Certificate” (certificate), and an “Automobile Application Addendum and Authorization” (addendum), the latter of which was only signed by AAA sales representative, Jeanine Michalski, at 9:53AM on February 25, 2013. Under a line item labeled “Driver Type,” the certificate states that Desiree Durga is “ASSIGNED”3 and Justin Durga is “NOT LICENSED”; and under another line item labeled “Years Licensed” it states “7” for Desiree Durga and “0” for Justin Durga. Contrarily, in the addendum, next to a line asking “Do all drivers have a valid driver’s license including drivers 16 years of age with a graduated license?” the box marked “Yes” is checked. Again, the addendum reflects a signature by Jeanine Michalski on the “Sales Representative” line, but the “Signature of Applicant” line above it is blank. In her affidavit, Desiree Durga’s avers that “I never stated that Justin Durga had a valid driver’s license, nor did I ever prepare or sign this Addendum.” The addendum indicates that the Durgas carried automobile insurance with Farmers Insurance Exchange through March 15, 2013, and consistent with the certificate, it appears MemberSelect first insured Desiree Durga’s Jeep for the February 25, 2013-August 25, 2013 policy term. This policy was renewed and continued for ten years through the February 25, 2023- August 25, 2023 term at issue in this litigation. Desiree Durga’s affidavit also avers that “every renewal from AAA or MemberSelect continued to state that Justin Durga was not licensed—as 1 The policy of insurance that was in effect on the date of the accident was issued by defendant MemberSelect. In various documents prepared by defendant in this matter, including documents sent to plaintiffs, it refers to itself as “MemberSelect Insurance Company,” “AAA In

No. 533 June 11, 2025 283 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Jill BONG, Plaintiff-Appellant, v. OREGON DEPARTMENT OF JUSTICE and Oregon Attorney General, Defendants-Respondents. Douglas County Circuit Court 23CV45434; A185121 Jason R. Thomas, Judge. Submitted May 12, 2025. Jill Bong filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, filed the brief for respondents. Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge. AOYAGI, P. J. Affirmed. 284 Bong v. Dept. of Justice AOYAGI, P. J. In March 2023, petitioner filed a federal action that included claims against the former governor of Oregon and the former director of the Oregon Health Authority (OHA) in their individual and official capacities. A senior assistant attorney general (AAG) from the Oregon Department of Justice (DOJ) appeared on behalf of the former governor and the former OHA director in both their individual and official capacities. Petitioner challenged the AAG’s authority to appear for the defendants in their individual capacities. The federal court rejected that challenge. Petitioner then filed this state court action against the Oregon Attorney General and the DOJ, challenging their authority to defend former or current state officials, officers, or employees in their personal capacities in specified circumstances. The circuit court held a stipulated facts trial and ultimately dismissed the case on two grounds: (1) that petitioner lacked standing to object to what lawyer rep- resents her opponents in court, for reasons detailed at length in the court’s letter opinion, and (2) that any complaint about the qualifications or status of another party’s lawyer should be directed to the court in which that lawyer is appearing— here, to the federal court, which had already rejected petition- er’s challenge to the AAG’s representation—rather than being raised in a separate action in a different court. On appeal, petitioner contends that the circuit court erred in dismissing her state court action. In five assign- ments of error, she challenges the court’s ruling, arguing that she has standing, that the court misframed the issue, that the court improperly resurrected a waived claim-splitting defense, that the court’s second basis for dismissal was wrong, and that the court had authority to issue an injunc- tion in this case. The state responds that the circuit court properly dismissed the case, because petitioner met none of the elements of standing, and because the circuit court could not be required to direct proceedings in a federal dis- trict court as petitioner sought. Having reviewed the record and considered the parties’ arguments, we agree with the state that the trial court did not err in dismissing the action. Petitioner failed Nonprecedential Memo Op: 341 Or App 283 (2025) 285 to establish standing, which is dispositive. Accordingly, we affirm. Affirmed.

30 June 4, 2025 No. 484 IN THE COURT OF APPEALS OF THE STATE OF OREGON Richard GRIFFITH and Reta Griffith, husband and wife, Plaintiffs-Appellants Cross-Respondents, v. PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD, Defendant-Respondent Cross-Appellant, and ALPINE ABATEMENT ASSOCIATES, INC., Defendant. Wallowa County Circuit Court 22CV10452; A181951 Wes Williams, Judge. On appellants’ petition for reconsideration filed March 28, 2025, and respondent’s response filed April 2, 2025. Opinion filed March 19, 2025. 339 Or App 40, 566 P3d 1235 (2025). Kelly Vance for petition. Thomas M. Christ and Sussman Shank LLP for response. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. TOOKEY, P. J. Reconsideration allowed; former opinion modified and adhered to as modified. Cite as 341 Or App 30 (2025) 31 TOOKEY, P. J. Plaintiffs petition for reconsideration of our deci- sion in Griffith v. Property and Casualty Ins. Co. of Hartford, 339 Or App 40, 566 P3d 1235 (2025), asserting, among other reasons that we should reconsider our decision, that we “committed factual error in opining that all plaintiffs’ counsel did was file a complaint, which was contrary to the evidence.” Plaintiffs assert that “the trial court file shows far more activity than is depicted by the panel’s opinion.” We grant reconsideration, modify our previous opinion in two respects, and adhere to it as modified. First, in our opinion, we stated, “The complaint and Hartford’s answer were the only filings relating to Hartford in plaintiffs’ civil action. Shortly thereafter, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Id. at 42. We modify those sentences to read, “After Vance filed the civil action, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Second, in our opinion, we stated, “Prior to the par- ties’ settlement and release, there was minimal litigation by plaintiffs’ counsel (the filing of a complaint) with respect to plaintiffs’ claims against Hartford.” Id. at 48. We mod- ify that sentence so that it reads, “Prior to the parties’ set- tlement and release, litigation by plaintiffs’ counsel with respect to plaintiffs’ claims against Hartford included fil- ing a complaint and amended complaint, filing a reply to Hartford’s affirmative defenses, filings related to summary judgment, and oral argument before the court.” We have also considered the other reasons that plaintiffs assert that we should reconsider our opinion and have determined that reconsideration is not warranted. Reconsideration allowed; former opinion modified and adhered to as modified.

No. 568 June 25, 2025 453 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON KENNETH W. WALTERS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A185081 Submitted May 9, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for petitioner. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Reversed and remanded. 454 Walters v. Board of Parole EGAN, J. Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision (board) that set petitioner’s sex offender notification level at Level 3. We reverse and remand the board’s final order.1 Petitioner acknowledges that he did not argue below that the board erred in failing to consider the time he has been in the community without sexually offending. The state does not contest exhaustion or preservation. We agree with petitioner that relaxing the exhaustion requirement is appropriate under these circumstances. Watson v. Board of Parole, 329 Or App 13, 19-20, 540 P3d 20 (2023). The board concedes that it erred in assessing peti- tioner’s risk of reoffending without considering his offense- free time in the community. We agree with and accept the concession. Under our decisions in Thomsen v. Board of Parole, 333 Or App 703, 554 P3d 308, rev den, 373 Or 81 (2024), and Allen v. Board of Parole, 334 Or App 447, 557 P3d 178, rev den, 373 Or 121 (2024), the board was required to assess petitioner’s risk of reoffense as of the time of the assessment. The appropriate remedy is to reverse and remand to the board for further proceedings. Thomsen, 333 Or App at 717. Reversed and remanded. 1 As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel.