Christine Baker
[Redacted]
Pro Se
SUPERIOR COURT OF ARIZONA
MOHAVE COUNTY
Plaintiff,
v.
Access Sales Inc., et al.,
Defendants. / )
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PLAINTIFF’S RESPONSE TO THE HEALTH ONE, INC. MOTION TO DISMISS AND REQUEST FOR JOINDER OF NATIONAL WAY HEALTHCARE ASSOCIATION
Plaintiff Christine Baker hereby opposes the Motion to Dismiss filed by Defendant Health One, Inc. (“Health One”) pursuant to Rule 12(b)(2) and Rule 12(b)(6), Ariz.R.Civ.P., claiming that the Court lacks personal jurisdiction and that Plaintiff failed to state a claim upon which relief can be granted. Plaintiff seeks joinder of National Way Healthcare Association (“National Way”) pursuant to Rule 17(a) and Rule 19(a). This Motion is supported by Plaintiff’s Affidavit and Exhibits.
I. FACTUAL BACKGROUND
On 12/16/2004 Plaintiff filed her First Amended Complaint and she alleges in ¶ 1 violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1) (“TCPA”), and its implementing regulations, 47 C.F.R. § 64.1200(a)(3) and in ¶ 2 she alleges violations of A.R.S. Title 44 Article 7, Consumer Fraud.
On 8/2/04 and 8/4/04, Plaintiff received unsolicited faxes advertising “New Health Plans” and the faxes promised “We GUARANTEE we HAVE a company that WILL provide you with Health Benefits when you fax this completed form back.” [Id. ¶ 75, Exhibits J 1-2] Plaintiff faxed the completed application with her Arizona address and Health One “approved” the application. [Id. ¶ 76] After being subjected to many misrepresentations during several calls, Plaintiff eventually determined that the advertised “New Health Plan” was not health insurance at all, but a scam with benefits limited to small discounts from the few healthcare providers in the PPO network. Plaintiff was finally advised that she had to pay a nonrefundable $89 application fee and the $99 first month premium to obtain specific information about the benefits. [Id. ¶¶ 78-80]
The Health One website healthoneusa.com and its fax coversheet [Exhibit J-3] contained no address. Plaintiff was finally able to serve Health One on 4/5/05 after readers of her websites informed her that Health One operates out of Texas.
Health One attorney Kenneth Moyer informed Arbitrator Porter on 6/3/05, 6/28/05 and 6/29/05 that he intended to file a motion to dismiss. Arbitrator Porter urged Mr. Moyer to file the motion ASAP. The Health One Motion and Affidavit state that they were mailed on 8/23/05 – over 4.5 months after service with Plaintiff’s First Amended Complaint and Summons. However, while the Affidavit by Wes Long, President of Health One, was included in mailing, it was signed and notarized on 8/27/05 – 4 days after the mailing date.
On 6/27/05, Health One was served with Plaintiff’s Initial Disclosures and discovery requests. Health One served its Answers to her Requests for Admissions on 8/5/05 and it failed to provide any documentation or explanation to substantiate its absurd denials. [Exhibit K-1] On 8/8/05 Health One responded to the Requests for Production of Documents and it failed to provide a single document. [Exhibit K-3] To date, Plaintiff has not received the Health One response to her Interrogatories. [Exhibit K-2]
Plaintiff has not received the Health One Initial Disclosures.
On 7/11/05, Plaintiff received a voice message from Scott “with the health program” regarding new health insurance programs. Plaintiff returned his call and it was answered by National Way Healthcare Association. Scott’s assistant confirmed that they insure in Arizona and that they had sent out faxes. Apparently they were calling all the consumers who responded to the junk faxes, but had not signed up.
According to the Texas Secretary of State, Defendant Nationwide Benefits Association (Plaintiff had been unable to locate and serve it) had changed its name to National Way Healthcare Association.
Plaintiff has heard the entirely false and misleading National Way radio advertisements just about every day for literally months.
The Houston Better Business Bureau reports an “unsatisfactory record” and a FCC citation for TCPA violations for National Way at
http://www.data.bbb.org/scripts/cgiip.exe/WService=houston/houston/showrpt.html?language=english&bis=n&zid=46000178 The report lists Mike McVay as CFO for National Way. Why did Mike McVay certify the Health One responses to Plaintiff’s discovery requests?
Aside from numerous complaints, the Houston BBB also reports: [Exhibit J-7]
ADDITIONAL BUSINESS NAMES
This company also does business as:
Health One;
Health One Family Benefit Plans;
Health One Family Benifit Plans;
Health One, Inc.;
National Way Benefits Association;
Nationwide Benefit Association;
Nationwide Benefits;
Nationwide Benefits Assoc;
USA Health Benefits,Inc and
USA Healthone.
The Health One/National Way websites healthoneusa.com, nationalway.com and select129.com contain no address and are privately registered (the domain owner’s name and address are hidden) so that it is impossibly to determine who they are and where to serve them. Health One and its agents and affiliates have been taking extraordinary measures to hide their identities and locations.
The Texas Franchise Tax Certification of Account Status for Health One has been listed as “NOT IN GOOD STANDING” since at least June 2005. [See http://ecpa.cpa.state.tx.us/coa/servlet/cpa.app.coa.CoaGetTp?Pg=tpid&
Search_Nm=health%20one%20inc%20&Button=search&Search_ID=30010998638]
On 5/2/05, Texas Attorney General Greg Abbott announced his suit against American ARC Management d/b/a/ Family Health [Exhibit L] and initially Plaintiff thought that Health One and Nationwide Benefits were defendants in this complaint with slightly different names as the allegations were identical to Plaintiff’s, many of her readers’ and various state insurance departments’ complaints. However, it appears that Texas is the nation’s health scam cesspool with numerous entities engaging in health insurance fraud and illegal marketing campaigns.
Clearly, Plaintiff has neither the legal skills nor resources to properly pursue Health One and National Way – they are professional criminals. It is highly unlikely that any of the other uninsured victims of this health insurance fraud are more qualified or have the cash to retain an attorney. After all, the wealthy can afford “real” insurance.
Therefore, Plaintiff is serving a copy of this filing on Arizona Attorney General Terry Goddard, the Arizona Department of Insurance and Texas Attorney General Greg Abbott. The persons responsible for this deplorable health insurance fraud ought to be sent to prison until they go to hell. And anyone who could take action to protect the most vulnerable human beings, the sick, the unemployed, the working people with crappy jobs without health benefits, the children, the poor – every person who could stop this deplorable fraud and fails to take action is as guilty as the crooks.
Health One failed to properly respond to Plaintiff’s discovery requests. Health One has a lot to hide and may be effectively out of business and Plaintiff therefore requests joinder of National Way.
Plaintiff properly stated her claims and this Court has personal jurisdiction as Plaintiff’s ARIZONA application was APPROVED on 8/2/04, Plaintiff documented the 2nd solicitation in ARIZONA on 7/11/05 and the ongoing solicitation of ARIZONA residents through the radio advertisements for these fraudulent health insurance offers in violation of the Arizona Consumer Fraud Act.
II. DISCUSSION
1) This Court has personal jurisdiction over Health One and its affiliates
On 8/2/04 and 8/4/04 Plaintiff received 2 junk faxes advertising “New Health Plans.” On 8/2/04, Jessica with Nationwide Benefits Association approved Plaintiff’s application with her Arizona address. [Exhibit J-2, Affidavit ¶¶ 2-4, audio recording posted at http://fight-back.us/forum/index.php?showtopic=803]
On 8/5/04, Plaintiff received the fax dated 8/4/04 from Lisa S. with “Nationwide Benefits Association Administered by USA Health One Family Benefit Plans” with the request for a call back to complete the application. Attached were three pages about the “Health One” benefits plan with misleading and false statements of benefits. [Affidavit ¶ 5, Exhibits J 3-6]
On 7/11/05, Plaintiff received a voice message: “Hi, this is Scott again with the health program. I left you a previous message and I just wanted to let you know, our open enrollment will be ending this week, ah.., and we now have group and insurance benefits available. So, give me a call before this offer ends at 800-384-2749. That number again is 800-384-2749. Thanks, and have a great day.” [Affidavit ¶ 8] The audio recording is posted at http://fight-back.us/forum/index.php?showtopic=835
Plaintiff called the 800-384-2749, answered by National Way Healthcare Association, and Scott’s assistant confirmed that they had sent out faxes but did not have insurance programs then. She provided the website select129.com. Plaintiff asked “… you insure in Arizona?” and she responded “yes, we do.”
Plaintiff has heard the National Way advertisements just about every day on the radio in Arizona for months.
Plaintiff’s Affidavit contradicts the Affidavit by Wes Long, President of Health One, as Health One is actively soliciting business in Arizona. Notably, Plaintiff’s claims are fully documented by her exhibits and legally recorded telephone calls.
Plaintiff’s application with her ARIZONA address was approved on 8/2/04 and on 7/11/05 Plaintiff was called for the purpose of selling her health insurance in Arizona.
Health One purposely targets Arizona residents, Plaintiff’s consumer fraud claims arise out of Health One’s or its agents’ or affiliates’ contacts with Plaintiff in Arizona and jurisdiction is reasonable as Health One and/or its agents or affiliates continue to solicited business in Arizona on a daily basis through radio ads. Clearly, this Court has jurisdiction.
2) Plaintiff properly stated her claims against Health One
In her First Amended Complaint Plaintiff alleges in ¶ 1 violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1) (“TCPA”), and its implementing regulations, 47 C.F.R. § 64.1200(a)(3) and in ¶ 2 she alleges violations of A.R.S. Title 44 Article 7, Consumer Fraud.
A. Health One and/or its agent(s) caused Plaintiff to receive unsolicited fax advertisements for “New Health Plans” in violation of the TCPA
On 8/2/04 and 8/4/04, Plaintiff received unsolicited faxes advertising “New Health Plans”, as stated in the First Amended Complaint at ¶ 75.
Because the junk faxes do not identify the advertisers, Plaintiff does not know the exact number of unsolicited health faxes she received on behalf of Health One in violation of the Telephone Consumer Protection Act. Title 47 USC Sec. 227:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States
(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; or ….
(3) Private right of action
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
In 1995, the FCC established the advertisers'liability: FCC Rcd 12391 at ¶ 31:
“We clarify that the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements” [emphasis added]
The unsolicited faxes advertise the Health One “New Health Plan.”
The 8/4/04 Health One fax from Lisa S. identifies the healthoneusa.com website on the coversheet. [Exhibit J-3]. Attached were 3 pages of plan descriptions [Exhibits J 4-6]. Exhibit J-6 is titled “HealthONE Family Benefit Plans” and contains questions and answers about the plan. Throughout the page it refers to “HealthONE.” Notably, the first paragraph states:
“Q: How can I pay for my HealthOne Membership?”
Clearly, Health One is the entity on whose behalf the junk faxes were transmitted and it is therefore ultimately liable for compliance with the TCPA.
B. Health One and/or its agent(s) misrepresented and continue to misrepresent the “New Health Plans” in violation of the Arizona Consumer Fraud Act.
Health One deliberately misrepresented its discount plan as health insurance and falsely claimed that it offered special limited time pricing with the intent to defraud the uninsured, maliciously targeting the disadvantaged.
ARS Title 44-1481. Fraudulent advertising practices defined; violation; classification
A. A person is guilty of a class 3 misdemeanor who:
1. Knowingly and with the intent to sell to the public real or personal property or services, or to induce the public to acquire an interest therein, makes and publishes an advertisement, either printed or by public outcry or proclamation, or otherwise, containing any false, fraudulent, deceptive or misleading representations in respect to such property or services, or the manner of its sale or distribution.
The unsolicited faxed advertisements [Exhibits J 1-2] misrepresented the product as health insurance, demanding detailed personal information such as the applicant’s weight, height, pre-existing conditions and whether “Non-Drinker” and “Smoker.” In fact, the only purpose of these questions is to mislead the uninsured, as everybody is approved – the only condition for approval is a checking account with the funds to clear the $189 initial charge. The Health One advertisements falsely claimed that the advertisement was for a “limited offer” ending “Friday @ 8:00 pm” and that the $99 offer was “normally $199.”
The plan description [Exhibits J 4-6] and the Health One or its affiliates’ representatives [Affidavit ¶¶ 5-7] also deliberately misrepresented the product and Plaintiff did not get a call from a “Healthcare Professional” as promised at the bottom of the junk faxes. Instead, Plaintiff was contacted by commissioned sales people in a boiler room.
The “Select One Health Plan” advertised in Lisa’s fax: [Exhibit J-5]
HOSPITAL
Hospital stays - *reduced up to 80%
Our Nationwide PPO Network is one of the most comprehensive networks in America, comprised of physicians, hospitals and other health care provider locations, which are contracted as participating providers.
* No deductible
* No limitations in usage or number of confinements
* Immediate eligibility regardless of health conditions
This advertisement appears to be what every uninsured is looking for:
80% coverage with no deductible and no limitations regardless of pre-existing conditions.
Of course that’s not at all what consumers get. Even assuming that uninsured consumers are expected to be sophisticated enough to know that “up to” really means that this is the MAXIMUM, Plaintiff believes that no hospital will give an 80% discount. Since this is NOT insurance, the health care providers and hospitals get paid ONLY what the patient pays. Health One does not make ANY payments on behalf of its members. It collects the membership fees and pays out nothing. It is not true that the Health One plan will get members accepted by doctors and hospitals for major procedures without paying deposits as usually required for the uninsured – as one Health One representative insisted, trying to scare Plaintiff into signing up.