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CAUSE NO. 2016-62142
S. EMANUEL LIN § IN THE DISTRICT COURT
§
§
v. §
§ HARRIS COUNTY, TEXAS
§
ESTATE OF KENNETH JAMES §
WILCHENSKI, ROBERT FLOYD SUE §
TRUCKING, INC., AND SENTRY §
INSURANCE A MUTUAL COMPANY § 269TH JUDICIAL DISTRICT
DEFENDANTS ROBERT FLOYD SUE TRUCKING, INC. AND ESTATE OF
KENNETH JAMES WILCHENSKI, DECEASED’S FIRST AMENDED ANSWER,
REQUEST FOR DISCLOSURE AND DEMAND FOR JURY
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants, Robert Floyd Sue Trucking, Inc. and the Estate of Kenneth James
Wilchenski, Deceased, and file this, their First Amended Answer to Plaintiff’s First Amended
Petition and Demand for Jury. In support of same, Defendants would respectfully show unto this
Honorable Court the following:
I.
RESPONSE TO PLAINTIFF’S PETITION
1. Defendants hereby admit to Plaintiff’s allegation that, at the time of the accident at
issue, Kenneth James Wilchenski was acting in the course and scope of his employment with Robert
Floyd Sue Trucking. Defendants also admit that the doctrine of respondeat superior would make
Defendant Robert Floyd Sue Trucking liable for any negligent acts or omissions of Kenneth James
Wilchenski in connection with the accident at issue, but specifically deny and dispute Plaintiff’s
legal and factual allegations that Mr. Wilchenski was negligent and caused the accident at issue.
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2. Defendants enter a general denial pursuant to Tex. R. Civ. Proc. 92 as to all other
legal and factual assertions and contentions in Plaintiff’s First Amended Petition and any
amendments thereto except as specifically admitted above. To the extent necessary, Defendants
specifically deny all legal and factions assertions and contentions in Plaintiff Emanuel Lin’s First
Amended Petition and any amendments thereto except as admitted above, and demand strict proof
thereof or that this claim be denied and dismissed in its entirety.
II.
RIGHT TO AMEND
3. Pleading additionally, or in the alternative, Defendants reserve their rights to amend
their answer following further discovery in this cause and as allowed by Texas law.
III.
MITIGATION
4. Pleading additionally, and in the alternative, Plaintiff failed to act as ordinarily
prudent persons would have acted in the same or similar circumstances in mitigating their alleged
damages, if any. Plaintiff did not seek immediate treatment, did not fully disclose to his doctors any
prior or subsequent injuries or conditions, and has not diligently attempted to mitigate any claimed
damages.
IV.
PAID VS. INCURRED
5. Pleading further, still urging and relying on the matters set forth above, Defendants
assert the statutory defense set forth in Section 41.105 of the Texas Civil Practice & Remedies Code
to the extent Plaintiff’s medical specials, if any, exceed the amount actually paid on Plaintiff’s
behalf. Therefore, recovery of medical or healthcare expenses incurred by Plaintiff is limited to the
amount actually paid by or on behalf of the Plaintiff.
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WAGES TAXABLE
Defendant invoke Section 18.091, Tex. Civ. Prac. & Rem. Code, and reques that to
the extent Plaintiff seek recovery for loss of earnings or loss of earning capacity, the evidence to
prove such loss must be presented in the form of a net loss after reduction for income tax payments
unpaid tax liability. Defendant further request the Court instruct the jury as to whether any
recovery for compensatory damages sought by Plaintiff is subject to federal income taxes.
JURY REQUEST
Pursuant to Tex. R. Civ. P. 216, Defendants request a trial by jury.
REQUEST FOR DISCLOSURE
Under the authority of Tex. R. Civ. P. 194, Defendant request that Plaintiff disclose,
within 30 days of the service of this Request, the information or material described in Rule 194.2.
COMPARATIVE FAULT
Pleading additionally, and in the alternative, Defendants assert that Plaintiff failed to
exercise that degree of care which a person of ordinary care would have exercised in the same or
similar circumstances and Plaintiff’s own acts or omissions, including but not limited to failing to
control his speed, failing to yield the right way, and changing lanes when unsafe, constituted
negligence and were the sole cause and/or a proximate cause of the occurrence in question and
Plaintiff’s claimed damages, if any.
10. Defendants plead and invoke the proportionate responsibility provisions of Chapters
33.001 et seq., of the Texas Civil Practices and Remedies Code and state that Plaintiff’s recovery, if
any, should be reduced or denied pursuant to these provisions.
Respectfully submitted,
THE FUENTES FIRM, P.C.
/s/David Helmey
ROBERT FUENTES
State Bar No. 24005405
DAVID HELMEY
State Bar No. 24092504
5507 Louetta Road, Suite A
Spring, Texas 77379
Telephone: (281) 378-7640
Facsimile: (281) 378-7639
robert@fuentesfirm.com
david@fuentesfirm.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has been
served upon pro se Plaintiff S. Emanuel Lin in accordance with the Rules of Civil Procedure on
March 20, 2017.
/s/David Helmey .
DAVID HELMEY
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CAUSE NO. 2016-62142 S. EMANUEL LIN § IN THE DISTRICT COURT § § v. § § HARRIS COUNTY, TEXAS § ESTATE OF KENNETH JAMES § WILCHENSKI, ROBERT FLOYD SUE § TRUCKING, INC., AND SENTRY § INSURANCE A MUTUAL COMPANY § 269TH JUDICIAL DISTRICT DEFENDANTS ROBERT FLOYD SUE TRUCKING, INC. AND ESTATE OF KENNETH JAMES WILCHENSKI, DECEASED’S FIRST AMENDED ANSWER, REQUEST FOR DISCLOSURE AND DEMAND FOR JURY TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants, Robert Floyd Sue Trucking, Inc. and the Estate of Kenneth James Wilchenski, Deceased, and file this, their First Amended Answer to Plaintiff’s First Amended Petition and Demand for Jury. In support of same, Defendants would respectfully show unto this Honorable Court the following: I. RESPONSE TO PLAINTIFF’S PETITION 1. Defendants hereby admit to Plaintiff’s allegation that, at the time of the accident at issue, Kenneth James Wilchenski was acting in the course and scope of his employment with Robert Floyd Sue Trucking. Defendants also admit that the doctrine of respondeat superior would make Defendant Robert Floyd Sue Trucking liable for any negligent acts or omissions of Kenneth James Wilchenski in connection with the accident at issue, but specifically deny and dispute Plaintiff’s legal and factual allegations that Mr. Wilchenski was negligent and caused the accident at issue. 1 2. Defendants enter a general denial pursuant to Tex. R. Civ. Proc. 92 as to all other legal and factual assertions and contentions in Plaintiff’s First Amended Petition and any amendments thereto except as specifically admitted above. To the extent necessary, Defendants specifically deny all legal and factions assertions and contentions in Plaintiff Emanuel Lin’s First Amended Petition and any amendments thereto except as admitted above, and demand strict proof thereof or that this claim be denied and dismissed in its entirety. II. RIGHT TO AMEND 3. Pleading additionally, or in the alternative, Defendants reserve their rights to amend their answer following further discovery in this cause and as allowed by Texas law. III. MITIGATION 4. Pleading additionally, and in the alternative, Plaintiff failed to act as ordinarily prudent persons would have acted in the same or similar circumstances in mitigating their alleged damages, if any. Plaintiff did not seek immediate treatment, did not fully disclose to his doctors any prior or subsequent injuries or conditions, and has not diligently attempted to mitigate any claimed damages. IV. PAID VS. INCURRED 5. Pleading further, still urging and relying on the matters set forth above, Defendants assert the statutory defense set forth in Section 41.105 of the Texas Civil Practice & Remedies Code to the extent Plaintiff’s medical specials, if any, exceed the amount actually paid on Plaintiff’s behalf. Therefore, recovery of medical or healthcare expenses incurred by Plaintiff is limited to the amount actually paid by or on behalf of the Plaintiff. 2 WAGES TAXABLE Defendant invoke Section 18.091, Tex. Civ. Prac. & Rem. Code, and reques that to the extent Plaintiff seek recovery for loss of earnings or loss of earning capacity, the evidence to prove such loss must be presented in the form of a net loss after reduction for income tax payments unpaid tax liability. Defendant further request the Court instruct the jury as to whether any recovery for compensatory damages sought by Plaintiff is subject to federal income taxes. JURY REQUEST Pursuant to Tex. R. Civ. P. 216, Defendants request a trial by jury. REQUEST FOR DISCLOSURE Under the authority of Tex. R. Civ. P. 194, Defendant request that Plaintiff disclose, within 30 days of the service of this Request, the information or material described in Rule 194.2. COMPARATIVE FAULT Pleading additionally, and in the alternative, Defendants assert that Plaintiff failed to exercise that degree of care which a person of ordinary care would have exercised in the same or similar circumstances and Plaintiff’s own acts or omissions, including but not limited to failing to control his speed, failing to yield the right way, and changing lanes when unsafe, constituted negligence and were the sole cause and/or a proximate cause of the occurrence in question and Plaintiff’s claimed damages, if any. 10. Defendants plead and invoke the proportionate responsibility provisions of Chapters 33.001 et seq., of the Texas Civil Practices and Remedies Code and state that Plaintiff’s recovery, if any, should be reduced or denied pursuant to these provisions. Respectfully submitted, THE FUENTES FIRM, P.C. /s/David Helmey ROBERT FUENTES State Bar No. 24005405 DAVID HELMEY State Bar No. 24092504 5507 Louetta Road, Suite A Spring, Texas 77379 Telephone: (281) 378-7640 Facsimile: (281) 378-7639 robert@fuentesfirm.com david@fuentesfirm.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has been served upon pro se Plaintiff S. Emanuel Lin in accordance with the Rules of Civil Procedure on March 20, 2017. /s/David Helmey . DAVID HELMEY 4