Court of Appeals of Texas, Dallas.

TRI-CITY HEALTH CENTRE, INC., Appellant,

v.

GREEN SHIELD PREPAID SERVICES, INC., Appellee.

No. 05-95-01684-CV.

|

Oct. 1, 1997.

Before Justices OVARD, MORRIS, and JAMES.

OPINION

OVARD, Justice.

*1 In this case, we are asked to decide whether a Texas court has the power to adjudicate the negligent misrepresentation claim of a Texas plaintiff, Tri-City Health Centre, Inc., against a Canadian defendant, Green Shield Prepaid Services, Inc. The court below found that Green Shield’s contacts with Texas were too minimal to allow the exercise of in personam jurisdiction. In thirteen points of error, Tri-City now asserts the trial court erred in granting Green Shield’s special appearance motion, in reaching the merits of the cause of action, and in entering conclusions of law without legally or factually sufficient evidence supporting them. We affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Tri-City owns and operates a 137-bed hospital located in the City of Dallas. The hospital operates a specialized care unit for patients who suffer from severe allergy problems, chemical sensitivity problems, and problems of a similar nature. Brittany Caldwell was admitted to this unit in October 1991 for treatment of “extreme sensitivities.” Her hospital bill totaled $610,732.72 at her discharge in July 1992.

At all relevant times, Caldwell was a citizen of and a resident of the Province of Ontario, Canada. As a citizen of Ontario, she participated in the Ontario Health Insurance Plan (“OHIP”). The nature and scope of the relevant benefits under that plan are established by Ontario law and by policies and procedures promulgated by the provincial agency which administers OHIP.

Additionally, Caldwell was a dependent of a retired employee of General Motors of Canada. As an eligible dependent, she was also a participant in the GM Canada Health Care Plan (GM Canada Plan). The GM Canada Plan provides supplemental benefits based on OHIP’s primary insurance coverage. It exists as part of a collective bargaining agreement between General Motors of Canada Limited (GM Canada) and the National Automobile, Aerospace, Agricultural Implement Workers Union of Canada. GM Canada pays the costs of the benefits under the plan.

Green Shield administers the GM Plan pursuant to a contract between GM Canada and Green Shield. GM Canada pays Green Shield a fee for their third-party administrative services. The GM Canada Plan is not an insurance policy, and Green Shield is not an insurance company.

When Tri-City attempted to collect payment of Caldwell’s hospital bill under her GM Canada Plan benefits, Green Shield denied the claim. Thereafter, Tri-City sued Green Shield for breach of contract¹, violations of the Texas Insurance Code, and negligent misrepresentation. Green Shield specially appeared to contest jurisdiction. The trial court granted Green Shield’s special appearance and dismissed all of Tri-City’s causes of action.

On appeal, Tri-City challenges only the trial court’s order as it dismisses Tri-City’s negligent misrepresentation cause of action.

PERSONAL JURISDICTION

In points of error one and two, Tri-City generally asserts the trial court erred in reaching the merits of the lawsuit in a special appearance hearing. In points of error three, four and five, Tri-City challenges the trial court’s determination that Green Shield did not establish sufficient minimum contacts with the State of Texas to enable the court to exercise specific jurisdiction over Green Shield. Tri-City argues Green Shield’s telephone representations of Caldwell’s coverage, its handling of written information forwarded to it, and its responses to Tri-City are minimum contacts justifying the conclusion that Green Shield could have reasonably anticipated being called into court in Texas.

1. Applicable Law

*2 Texas courts may exercise personal jurisdiction over nonresident defendants if: (1) the Texas long-arm statute authorizes the exercise of jurisdiction; and (2) the exercise of jurisdiction comports with federal and state constitutional guarantees of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990); Clark v. Noyes, 871 S.W.2d 508, 513 (Tex.App.-Dallas 1994, no writ).

a. The Texas Long-Arm Statute

The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident that does business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 226 (Tex.1991). The long-arm statute lists actions that constitute “doing business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997) For purposes of the long-arm statute, a nonresident is considered to do business in Texas if the nonresident commits a tort in whole or in part in Texas. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042(1) (Vernon 1997).

Because the Texas long-arm statute “reach[es] as far as the federal constitution permits,” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762, cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978), we focus on the federal constitutional requirements for the exercise of personal jurisdiction. Guardian Royal, 815 S.W.2d at 226. Under federal due process requirements, we determine: (1) whether the nonresident defendant has purposefully established “minimum contacts” with the forum state; and (2) if so, whether the exercise of jurisdiction comports with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Guardian Royal, 815 S.W.2d at 226.

b. Minimum Contacts

Minimum contacts may be established only on “some act 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.” Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The actions of the nonresident defendant must justify a conclusion that the nonresident defendant should reasonably anticipate being called into court in the forum state. Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 675 (Tex.App.-Dallas 1993, writ dism’d by agr.). We must carefully weigh the facts of each case and avoid mechanical application of the governing standards. Guardian Royal, 815 S.W.2d at 231.

*3 Under the minimum contacts analysis, personal jurisdiction may be either general or specific. Schlobohm, 784 S.W.2d at 358; Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). Specific jurisdiction arises when a defendant commits some act in Texas that brings about the cause of action asserted against him. Schlobohm, 784 S.W.2d at 358; Hotel Partners, 847 S.W.2d at 632. Under specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant’s contact with the forum state to satisfy the minimum contacts requirement. Helicopeteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 227. Further, the nonresident defendant’s activities must result from or relate to those activities. In re S.A.V., 837 S.W.2d 80, 85 (Tex.1992); Guardian Royal, 855 S.W.2d at 228. The minimum contacts analysis focuses on the relationship among the defendant, the forum and the litigation. Schlobohm, 784 S.W.2d at 357.

When the cause of action does not arise out of or relate to the nonresident defendant’s purposeful conduct within the forum state, general jurisdiction may arise when the nonresident maintains continuous and systematic contacts with the forum. Guardian Royal, 815 S.W.2d at 228; Clark, 871 S.W.2d at 516. With general jurisdiction, the minimum contacts inquiry is broader and more demanding, requiring a showing of substantial activities in the forum state. Schlobohm, 784 S.W.2d at 357. The quality and nature of the contacts, not their number, is determinative. Clark, 871 S.W.2d at 520.

c. Burden of Proof

The plaintiff has the initial burden of pleading enough facts to bring the nonresident defendant within the provisions of the Texas long-arm statute. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); Hotel Partners, 847 S.W.2d at 633. At the special appearance hearing, the specially appearing defendant then has the burden to negate all alleged bases of personal jurisdiction. Hotel Partners, 847 S.W.2d at 634.

When reaching a decision to exercise or decline jurisdiction, the trial court should rely only upon the necessary jurisdictional facts and should not reach the merits of the case. Portland Sav. & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 536 (Tex.App.-Corpus Christi 1985, writ ref’d n.r.e.), cert. denied, 475 U.S. 1016, 106 S.Ct. 1200, 89 L.Ed.2d 313 (1986); Arterbury v. American Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ.App.-Texarkana 1977, no writ). Under the “commission of a tort” provisions of our long-arm statute, a plaintiff meets its jurisdictional burden when it alleges the defendant is the author of an act or omission within Texas, and the petition states a cause of action in tort arising from such conduct. See Arterbury, 553 S.W.2d at 947-48. The act or omission within Texas is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort. Id. Ultimate liability in tort is not a jurisdictional fact, and the merits of the cause of action are not at issue in a jurisdictional hearing. Portland, 716 S.W.2d at 536; Arterbury, 553 S.W.2d at 948.

*4 However, where the jurisdiction of a Texas court rests on the fact that the defendant committed a tortious act, the specially appearing defendant can defeat the attempted exercise of “long-arm” jurisdiction by the Texas court by proving that it did not do the act alleged. See Ross F. Meriwether & Assoc., Inc. v. Aulbach, 686 S.W.2d 730, 732 (Tex.App.-San Antonio 1985, no writ). There is no rule that a specially appearing defendant may not meet his jurisdictional burden by proving the non-existence of an essential jurisdictional fact, simply because such proof would also disprove the existence of a necessary element of the plaintiff’s cause of action. See Meriwether, 686 S.W.2d at 732. Such a rule would effectively bar a defendant’s right to challenge jurisdiction by showing it committed no act in Texas which would justify the assertion of jurisdiction by the Texas court. Meriwether, 686 S.W.2d at 732. The fact that the showing of an absence of the factual basis for exercise of jurisdiction also tends to show the absence of liability is irrelevant. Meriwether, 686 S.W.2d at 732.

3. Application of Law to Facts

Tri-City had the initial burden of pleading sufficient facts to bring Green Shield within the provisions of the Texas Long-Arm Statute. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); Hotel Partners, 847 S.W.2d at 633. Tri-City alleged in its petition that: (1) Green Shield was an insurance company, organized under the laws of Canada and engaged in the business of insurance in the State of Texas; (2) Green Shield’s principal place of business was in Windsor, Ontario, Canada; and (3) Green Shield issued insurance policy number 30006602 that provided payment for Caldwell’s medical expenses for treatment of sickness, injury, or disease.

Tri-City’s petition also alleged: (1) Tri-City sought to verify Caldwell’s insurance coverage before accepting her for treatment; (2) Green Shield, in the course of its business, represented to Tri-City that the treatment Caldwell sought “was covered under the terms of her insurance policy;” (3) Green Shield knew or should have known Tri-City would rely on this information; (4) Green Shield provided Tri-City with false information because it failed to exercise reasonable care in obtaining or communicating information to Tri-City; and (5) because Green Shield negligently misrepresented “the extent of … Caldwell’s insurance coverage,” Tri-City suffered a pecuniary loss of $610,732.72. These are allegations of the tort of negligent misrepresentation.² See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991).

The Texas long-arm statute provides that a nonresident does business in this state if it commits a tort in whole or in part in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042(1) (Vernon 1997). In its pleading, Tri-City alleged Green Shield, a Canadian corporation and an Ontario resident, had committed the tort of negligent misrepresentation in whole or in part in Texas. Because Tri-City pleaded sufficient facts to bring Green Shield within the provisions of the Texas long-arm statute, at the special appearance hearing Green Shield had the burden to prove a lack of jurisdiction by negating every possible ground of personal jurisdiction. Hotel Partners, 847 S.W.2d at 634.

*5 The parties agree that Green Shield did not maintain continuous and systematic contacts with Texas. Consequently, the trial court could not assert general jurisdiction over Green Shield. See Guardian Royal, 815 S.W.2d at 228; Clark, 871 S.W.2d at 516. Any jurisdiction the trial court had over Green Shield must necessarily have been specific jurisdiction. Specific jurisdiction arises out of a defendant’s purposeful act that brings about the cause of action asserted. Schlobohm, 784 S.W.2d at 358; Hotel Partners, 847 S.W.2d at 632. Here, the act bringing about Tri-City’s negligent misrepresentation cause of action was Green Shield’s alleged representation that the treatment Tri-City provided Caldwell “was covered under the terms of her insurance policy.”

Green Shield’s Special Appearance to Present Motion Objecting to Jurisdiction asserted: (1) Green Shield had never been a resident or citizen of the State of Texas; and (2) Green Shield did not commit a tort, in whole or in part, in Texas. At the special appearance hearing, the parties presented evidence by reading portions of affidavits and oral depositions and by questioning three witnesses. The trial court admitted ten exhibits into evidence. The principal issue for the trial court to resolve from the evidence presented was whether Green Shield represented to Tri-City that Caldwell’s GM Canada Plan would provide benefits for the treatment of “sensitivities” provided to Caldwell by Tri-City.

The first affidavit presented was that of Steven Bradie. Bradie stated he was the manager of Green Shield’s claims administration office and that he was familiar with the policies and procedures of his department in October 1991, the month Caldwell was admitted to Tri-City. He explained the GM Canada Plan provided supplemental benefits based on the coverage provided under the OHIP program. Regarding the policies of Green Shield, Bradie stated Green Shield’s employees are “instructed not to make any respresentation to any beneficiary, health care provider, or other person that any treatment which is proposed to be administered, or which has been administered, is covered by the health care plan.”

Bradie’s affidavit testimony also addressed the customs and practices followed by health care plan administrators and health insurance companies in connection with telephone callers seeking information about the provisions of health care benefit plans and health insurance policies. Bradie stated “[t]he custom and practice of plan administrators and insurance companies is to not make any representation that any treatment which is to be administered, or which has been administered, to a beneficiary is covered by the plan or the policy.” He also explained that “[n]o health plan administrator commits to coverage over the telephone prior to review of all documentary support,” and that “an understanding exists, as a matter of industry custom and practice, that any liability for treatment will be governed by the written terms of the plan or policy, not by telephone conversations or other communications.”

*6 Tri-City read excerpts from Bradie’s oral deposition into evidence. In those excerpts, Bradie described what happens when Green Shield receives an inquiry from a hospital. Green Shield’s clerk enters a subscriber number into their computer system to identify the subscriber’s benefits plan. With that information, Green Shield’s clerk can determine “what benefits would be payable and under what conditions, and [the clerk can] advise of those various conditions and qualifications open at that point.” In Caldwell’s case, Bradie understood that Caldwell’s GM Canada Plan benefits “would only be made against those services that were rendered and that were eligible under [OHIP].” Bradie testified that he was not aware Green Shield would deny Caldwell’s Tri-City claim until November 17, 1992, when the officials of the Canadian Ministry of Health advised Green Shield that the Tri-City provided experimental treatment to Caldwell that was clearly not an eligible service under OHIP.

Green Shield next presented the affidavit testimony of Mary Lynn Myers, the Green Shield clerk who handled Tri-City’s first telephone inquiry about Caldwell. In her affidavit, Myers stated she regularly received telephone calls from persons seeking information about the provisions of the GM Canada Plan. She stated Green Shield had a policy not to make any representation that proposed treatment was covered by the GM Canada Plan in response to these telephone inquiries. Instead, she would only say that “any coverage was conditional on OHIP coverage for the required services.” She also stated that, throughout the course of her employment in the Green Shield’s claims administration department, she “followed the Green Shield policy … without exception.”

Next, Green Shield presented the oral deposition testimony of Lisa Howell. Howell was the insurance verification clerk at Tri-City who placed the initial telephone call to Myers before Caldwell entered the hospital on October 24, 1991. In her job, Myers was required to call patients’ insurance companies to obtain specific information “like the deductible amount, the effective date, the percentage of pay, precertification if it was required or pre-existing conditions, if they had any clauses.” If a patient’s insurance required precertification, a medical review nurse in a different department of the hospital would handle it. Most of the time, Howell did not use a patient’s diagnosis in her insurance verification procedure. If the insurance company asked for a patient’s diagnosis and Howell knew it, she would give the company the diagnosis. But, it was not her job to explore the nature and extent of a patient’s insurance coverage.

Howell remembered having contacted Green Shield, but she could not remember the conversation itself. She did not remember if she discussed with either Green Shield of OHIP any special rules that might apply to Caldwell’s treatment outside of Canada. And, she could also not remember anything about a requirement for Caldwell to be referred by a Canadian physician. She repeated the only discussion she would normally have would be about deductible amounts, pre-existing clauses, percentages of payment and precertification. She had no recollection of talking with Green Shield about Caldwell’s diagnosis.

*7 Howell identified her handwriting on plaintiff’s exhibit number one, which was admitted into evidence. Her handwriting said: “Per Marilynn, eff. 1986, no ded, 100% of the difference after payment from OHIP.” This was the note she made from her telephone conversation with Myers.

Green Shield next presented Debra Mae Williams’s oral deposition. Williams was Howell’s supervisor at Tri-City. Williams reviewed Howell’s handwritten notes from Tri-City’s initial telephone conversation with Green Shield and noticed that Howell did not indicate whether precertification was required. Although Williams does not remember making Tri-City’s second telephone call to Green Shield, she believes that she did so because “no preCert required” appears in her handwriting on plaintiff’s exhibit number one. She testified her department of the hospital does not become involved in the diagnoses of patients or in conveying diagnostic information to insurance companies because department employees would not know what the diagnoses might be.

Williams testified that the hospital’s “utilization review” department handles precertification matters. If an insurance policy requires precertification, then a nurse notifies the insurance company of the “treatment plan.” After discussing the case with the nurse and analyzing the situation, the insurance company certifies the treatment. Williams additionally stated that “precertification [has] nothing to do with the payment.” She also said, “[w]hen the insurance is verified, they still tell you, this is not a guarantee of payment” and “the payment was controlled by the terms of the policy.” Williams also responded “[c]orrect” to the question that “the fact that you did nor didn’t give [a] diagnosis in connection with determining whether the particular person was insured under a policy … didn’t have anything to do with what the terms of the policy covered or didn’t cover.”

Tri-City read additional portions of Williams’s deposition into evidence. In these portions of her affidavit, Williams stated that Tri-City normally received from a doctor’s office information about a patient to be admitted. The usual information included the patient’s name, phone number and “what they were coming in for.” With that information, clerks in her department verified insurance. She testified it was necessary to have an admitting diagnosis when verifying insurance because sometimes an insurance company will ask why a patient is being admitted. Williams also testified that, when Howell phoned Green Shield, Howell had before her a faxed copy of a letter from OHIP. That letter, plaintiff’s exhibit number one, stated OHIP would pay $400 Canadian daily Caldwell’s Tri-City hospitalization. In the deposition, Tri-City’s attorney asked Williams if Howell would have had Caldwell’s admitting diagnosis at her disposal when she called Green Shield, and Williams indicated that she would.

Tri-City presented direct testimony of three witnesses. The first witness to testify was Danny Morten, the administrator of Tri-City Hospital. He stated he was familiar with Tri-City’s policy on insurance verification. He testified that, before a patient is admitted to the hospital, Tri-City calls the patient’s insurance company to verify that the patient “has coverage for a diagnosis.” The purpose of this policy is “[t]o make sure that when the patients are admitted, that we are actually going to be paid for the particular diagnosis they are admitted under.” He denied that the purpose of insurance verification was simply to verify that the patient is a participant in an insurance plan. He testified verification meant not only that the patient is a participant in the plan, but that the patient is covered for a “particular event” or a “particular diagnosis.”

*8 From Tri-City’s business records admitted into evidence, Morten was able to determine that Caldwell was diagnosed with “extreme sensitivities.” Morten was also able to determine from these records that Caldwell’s primary insurance coverage was provided by OHIP, not Green Shield. But, he stated that, if Green Shield had declined to verify insurance coverage for Caldwell, Tri-City’s policy would have been to deny her admission to the hospital.

Tri-City also presented the testimony of two expert witness. Paul Broughton was executive vice president of a company that is a managed-care health organization, third-party administrator. He testified that he is familiar with hospital policies for insurance verification. He stated there are two purposes of insurance verification: (1) verification of coverage for specific procedures; and (2) verification of the medical necessity and appropriateness of treatment. He testified that when a hospital calls and requests coverage verification, an insurance company believes the hospital is “asking questions that are tantamount to promises for payment.” Broughton testified that he had no personal knowledge of the facts of Tri-City’s lawsuit against Green Shield. He also testified he had no information whether policies such as he described were in effect and in place at Tri-City Hospital at the time in question, October 1991.

Lawrence Wedekind testified he was a hospital administrator. He stated the purpose of insurance verification was “to ensure that, number one the patient is covered by the insurance that they claim they are covered by” and “[n]umber two, to find out what procedures are limited or not covered and which procedures are covered; specifically, the procedure with the diagnosis that they are coming in under.” In his experience, when a hospital verifies insurance coverage, it is reasonable for the hospital to assume the insurance company will pay the patient’s bill.

Plaintiff’s exhibit number one is a copy of a letter dated October 15, 1991 from OHIP to Caldwell’s father. The evidence indicates this letter was faxed to Tri-City and that Tri-City employees Howell and Williams used it when they telephoned Green Shield in October 1991. The letter was written by an OHIP “Assessment Officer.” In the letter, the assessment officer advises Caldwell’s father that OHIP will pay benefits of $400 Canadian daily for Caldwell’s hospitalization at Tri-City. The letter contains Howell’s handwritten notes at the bottom saying “Per Marilynn, eff. 1986, no ded, 100% of the difference after payment from OHIP.” To the right of this note is Williams’s handwritten note saying “no preCert required.”

Plaintiff’s exhibit number four is a preprinted form dated November 26, 1991 that Green Shield sent to Tri-City. In the first paragraph of the form, Green Shield advised Tri-City it was unable to process Tri-City’s claim for “the numbered reason(s) indicated below.” Then it lists eight possible reasons. Green Shield has checked reasons numbered one and five. Reason number one states Green Shield must first forward its claim to OHIP and that Green Shield will reimburse to Tri-City the amount OHIP does not pay upon receipt of OHIP’s payment records. Reason number five states that Green Shield requires a letter of referral from Caldwell’s Ontario medical physician before it can consider the service Tri-City has provided to Caldwell.

*9 Through this evidence, the parties placed in issue whether an act that would ultimately support a judgment for negligent misrepresentation ever occurred. See Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434, 437 (Tex.1982); Arterbury, 553 S.W.2d at 949. Tri-City presented evidence of its reliance³ on the alleged act through the testimony of its administrator, Morten. Morten testified that, if Green Shield had not verified GM Canada Plan benefit coverage for Caldwell’s specific diagnosis, Tri-City would not have admitted her for treatment. Caldwell was admitted to Tri-City on October 24, 1991. Thus, Green Shield’s contacts with Tri-City prior to October 24, 1991 are the contacts relevant to the issue of whether a false representation was made.

The evidence shows only two contacts were made prior to October 24, 1991. They are Howell’s telephone call to Myers and Williams telephone call to an unnamed Green Shield employee. Thus, Green Shield could defeat the attempted long-arm jurisdiction of the Texas court by proving: (1) that Myers did not represent to Howell that Caldwell’s “sensitivities” treatment at Tri-City would by covered by the GM Canada Plan; and (2) that a Green Shield employee did not represent to Williams that “no precertification” meant the GM Canada Plan would pay for any portion of Caldwell’s “sensitivities” treatment that OHIP did not pay. See Meriwether, 686 S.W.2d at 732.

The initial telephone conversation took place between Myers and Howell. While neither Myers nor Howell provided evidence about their specific conversation with each other, Myers did state that, according to company policy and her actions in accordance therewith, she would have told Howell only that any coverage Caldwell had under the GM Canada Plan would be “conditional on OHIP coverage for the required services.”

The record contains Howell’s note from the first telephone conversation. The note is written on a letter in which OHIP verifies it will cover at least a portion of Caldwell’s hospitalization at Tri-City. The note indicates Howell obtained from Myers the information she was responsible for obtaining: effective date, deductible amount, and percentage of “pay.” Howell’s note indicates Caldwell’s GM Canada Plan coverage was effective in 1986, had no deductible, and paid 100% of the difference after payment from OHIP was received.

This handwritten note is not a statement that Green Shield would pay the entire cost of Caldwell’s “sensitivities” treatment at Tri-City. Neither Caldwell’s “sensitivities” diagnosis nor her plan of treatment appears in the words of the letter or in the handwritten notes. Read together with the words in the letter itself, the note is a statement that the GM Canada Plan would pay all of the difference between Caldwell’s Tri-City’s charges and any benefits approved for payment and paid by OHIP.

*10 The second telephone call was made by Williams. Williams has no independent recollection of the telephone call itself. And, although Williams’s handwritten note “no preCert required” is written on the assessment officer’s letter, the letter indicates that Caldwell’s primary insurance carrier had approved her Tri-City hospitalization. The trial court was entitled to infer from this evidence that OHIP had already precertified Caldwell. Because GM Canada Plan benefits were conditioned on those approved by OHIP, the trial court could reasonably infer the GM Canada Plan required no additional precertification. These notes on the letter do not indicate Green Shield told Tri-City the GM Canada Plan would pay any charge OHIP did not approve. There is no evidence that either Howell or Williams discussed Caldwell’s specific diagnosis or treatment plan in its two relevant telephone conversations with Green Shield.

Although Tri-City’s administrator Morten testified that Tri-City’s policy on insurance verification requires its verification clerk to obtain an insurance company’s approval of a patient’s treatment before treatment is provided, Morten was not present when the two relevant telephone calls were made, and he had no personal knowledge of their content. Howell clearly stated it was not her responsibility to obtain an insurance company’s approval of any particular treatment. She was responsible only for obtaining the pertinent terms of a patient’s insurance. Another hospital employee with specialized medical knowledge was charged with the responsibility of discussing a patient’s treatment plan with the patient’s insurance company. Williams testified that, although a doctor’s office would usually provide her department with a patient’s admitting diagnosis, clerk’s in her department gave that information to an insurance company only upon an insurance company’s request. There is no direct evidence that, in the two relevant telephone calls, Tri-City employees informed Green Shield of Caldwell’s “sensitivities” treatment plan.

Additionally, the record contains evidence of later correspondence that confirms Myers statement that she would only have advised Tri-City that Caldwell’s benefits under the GM Canada Plan were conditioned upon her benefits under OHIP. Green Shield forwarded the correspondence dated November 26, 1991 to Tri-City almost one month after the two relevant telephone conversations occurred. It appears to have been sent in response to the first claim Tri-City filed with Green Shield for Caldwell’s hospital stay. In this preprinted form, Green Shield told Tri-City that OHIP must first pay its portion of the claim before Green Shield could process the claim. This is evidence supporting Green Shield’s argument that no false misrepresentation occurred in the two relevant telephone calls.

Although Bradie, Howell, Williams, Morten, and two expert witnesses each testified about customs and practices followed by professionals in the health care industry regarding verification of insurance coverage and the implications of verification on payment of a hospital bill, this evidence relates to the merits of Tri-City’s lawsuit. Whether Green Shield exercised reasonable care in communicating information about Caldwell’s GM Plan coverage and whether Tri-City justifiably relied on the information communicated are two elements of the tort of negligent misrepresentation. See Federal Land Bank, 825 S.W.2d at 442. The merits of the cause of action alleged are not an issue in a special appearance hearing. See Portland, 716 S.W.2d at 536; Arterbury, 553 S.W.2d at 948. Evidence of health industry customs, practices, and expectations is not relevant to the jurisdictional issue presented here.

*11 We conclude Green Shield proved the non-existence of an essential jurisdictional fact: Green Shield made no false representation about Caldwell’s coverage under the GM Canada Plan when its employees spoke with Howell and with Williams prior to Caldwell’s admission to the Dallas hospital. See Meriwether, 686 S.W.2d at 732. Consequently, Green Shield negated all bases of personal jurisdiction relating to Tri-City’s negligent misrepresentation cause of action. See Hotel Partners, 847 S.W.2d at 634.

Tri-City relies on Memorial Hosp. System v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 648 (Tex.App.-Houston [14th Dist.] 1992, no writ), to support its argument that the trial court erred in granting Green Shield’s special appearance. In Memorial, the principal question presented was whether a Texas court had personal jurisdiction over a specially appearing defendant whose sole contact with the forum was to make fraudulent misrepresentations in a single telephone call. Memorial, 835 S.W.2d at 648. There, an employee of Robert Kelly Company presented himself for admission to Memorial Hospital in Houston for treatment of a work related injury. Memorial Hospital telephoned Fisher Insurance Agency in Mississippi to verify the existence of workers’ compensation insurance coverage on the employee. Fisher advised Memorial Hospital that employees of Robert Kelly Company were covered by worker’s compensation insurance. Relying on this information, Memorial Hospital admitted the injured employee and provided treatment. Subsequently, Memorial Hospital learned the workers’ compensation insurance policy did not provide coverage in the State of Texas. Our sister court determined that Fisher’s one telephone conversation with Memorial Hospital provided sufficient minimum contacts for the trial court to exercise specific jurisdiction over Fisher. See Memorial, 835 S.W.2d at 651.

While Memorial does seem factually similar to our case, the issues are not the same. In Memorial, there was no disagreement between the parties about the content of that one telephone conversation. Both Fisher and Memorial appear to have agreed that Fisher made a false representation during the course of their conversation. Thus, the initial jurisdictional issue in Memorial was whether Fisher had sufficient contacts with Texas to be called into court to defend the uncontested tort alleged. It resolved that issue under the minimum contacts analytical framework provided by our supreme court in Schlobohm. See Memorial, 835 S.W.2d at 649-51.

In the instant case, we need never reach the issue of whether a specially appearing defendant’s response to a single, telephone request for information provides sufficient minimum contacts to invoke a trial court’s jurisdiction over it. While the parties agree two telephone calls occurred during the essential time period, they disagree about the content of those calls. The first and only jurisdictional issue presented here is whether the act of falsely representing Caldwell’s health benefits ever occurred. By disproving that the act of falsely representing Caldwell’s health benefits ever occurred, Green Shield negated an essential jurisdictional element of Tri-City’s claim. See Meriwether, 686 S.W.2d at 732. In so doing, Green Shield destroyed the basis for the power of the Texas court to determine the issue of ultimate tort liability. Id. Thus, Green Shield negated all bases of personal jurisdiction under the Texas long-arm statute. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); Hotel Partners, 847 S.W.2d at 633.

*12 The trial court did not err in granting Green Shield’s special appearance.

We overrule points of error one, two, three, four and five.

WAIVER

1. Applicable Law

An appellant’s brief must include page references to the record, citation of authorities relied upon, and a discussion of the facts and authorities supporting the point at issue. See Tex.R.App. P. 74(f);⁴ Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 810 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.), cert. dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988); Most Worshipful Prince Hall v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref’d n.r.e.). Failure to discuss relevant facts and authority results in a waiver of the points on appeal. See D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.-Dallas 1993, no writ); Jones v. Texas Pac. Indemnity Co., 853 S.W.2d 791, 796 (Tex.App.-Dallas 1993, no writ). Failure to set out the legal theory on which appellant rests his contention presents nothing for review. Pierce v. State, 777 S.W.2d 399, 418 (Tex.Crim.App.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990).

3. Findings of Fact and Conclusions of Law

In points of error six through thirteen, Tri-City challenges the sufficiency of the evidence to support eight conclusions of law. Tri-City presents these eight points of error in two paragraphs constituting approximately one page of its brief.

In its discussion of these points, Tri-City cursorily recites our standard of review for sufficiency of the evidence challenges. But, it fails to identify the challenged conclusions of law by number or to provide references for them in the record. The only factual recitation in this portion of the brief is the perfunctory statement that “the evidence is overwhelming that Green Shield had numerous phone conversations and sent letters to Texas, confirming insurance coverage.” Tri-City never discusses the factual context in which this Court should apply the abstract principles recited. Tri-City’s argument for points of error six through thirteen directs our attention to points of error one and two for the proposition that the trial court erred in reaching the merits of its lawsuit rather than addressing the proper issue of whether Green Shield committed a purposeful act in Texas. Then it concludes “to the extent the trial court’s conclusions are … findings of fact, they are against the great weight and preponderance of the evidence” and “because there is no evidence to support the [c]ourt’s findings, the case should be remanded for a trial on the merits.”

Tri-City’s brief does not provide references to the record, a discussion of the facts, or the legal theory supporting these eight points of error. An appellate court is not required to refer to previous points of error to determine an appellant’s argument on different points of error. Because points of error six through thirteen do not comply with the pertinent rules on briefing under rule 74(f), no error is preserved for review.

*13 We overrule points of error six through thirteen.

We affirm the trial court’s order granting Green Shield’s special appearance.

	Footnotes
1		Caldwell and her father assigned all benefits accruing to them under the policy, the subject of this lawsuit, to Tri-City.
2		The elements of a cause of action for negligent misrepresentation are: (1) the representation is made by a defendant in the course of his business, or in a transaction in which he has a pecuniary interest; (2) the defendant supplies “false information” for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. Federal Land Bank, 825 S.W.2d at 442.
3		A plaintiff’s justifiable reliance on the defendant’s representation of “false information” is an element of the tort of negligent representation. See Federal Land Bank, 825 S.W.2d at 442.
4		All subsequent references to the “rules” or a “rule” shall be to the Texas Rules of Appellate Procedure.