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severe ecco se sm Filed
CAUSE NO.: D-1-GN-07-003414
07 October 4 P2:57
Amalia Rodriguez-Mendoza
District Clerk
Travis District
RASHID NUTRITION, INC, d/b/a IN THE DISTRICT COURT
DAYS INN
VS. OF TRAVIS COUNTY,
TEXAS
APEX NATIONAL INSURANCE 250TH
GROUP, BURNS & WILCOX LTD., JUDICIAL DISTRICT
ESSEX INSURANCE COMPANY,
AND MARKEL SERVICES, INC
PLAINTIFF’S ORIGINAL PETITION & REQUEST FOR DISCLOSURE
COMES NOW, Rashid Nutrition, Inc. DBA: Days Inn, a Texas Corporation
would be heard to complain of Apex National Insurance Group, Inc., Burns &
Wilcox, LTD., Essex Insurance Company, and Markel Services, Inc.. For cause of
action thereof, would state as follows:
1.
Plaintiff Rashid Nutrition, Inc. DBA: Days Inn is a Texas Corporation doing
business in Travis County Texas as Days Inn.
Defendant Apex National Insurance Group, Inc is a Texas corporation doing
business in Travis County, Texas. Defendant may be served with citation through
its Agent for Service, Safeer_Hassan, 9100 Southwest Freeway, Suite 201
Houston, TX_77074. Such service shall be performed by private process service
Von Moore.
Defendant Burns & Wilcox, Ltd. is a corporation doing business in Travis County,
Texas. Defendant may be served with citation on the Texas Secretary of State
through the CT Corporation System, 350 North St. Paul St. Dallas, TX 75201.
Such service shall be performed by Secretary of State.
Defendant Markel Service, Inc. is a corporation doing business in Travis County,
Texas. Defendant may be served with citation on the Texas Secretary of State
through the CT Corporation System, 350 North St. Paul St. Dallas, TX 75201.
Such service shall be performed by Secretary of State.
BAR CODE # 428189Defendant Essex Insurance Company is a corporation doing business in Travis
County, Texas. Defendant does_not have an accurate Attorney for Service
address. Therefore, According to The Texas Insurance Code 804, Defendant
may be served with citation on the Texas Insurance Commission. Defendant’s
address is 4521 Highlands Parkway, Glen Allen, Virginia 23060-6418. Such
service shall be performed by Texas Insurance Commission.
A. Discovery Control Plan
1. Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil
Procedure 190.3
B. Jurisdiction
2. The court has jurisdiction over defendant, a nonresident, because defendant,
Markel Service, Inc d/b/a Essex Insurance Company purposefully availed itself of
the privileges and benefits of conducting business in Texas by engaging in business
in Texas by contracting by issuance of an insurance policy covering a risk in Travis
County Texas with a Texas corporation, which contract was to be performed in
whole or in part by defendant by coverage of the risk and payment of premiums by
plaintiff. This suit is non removable from the Texas court as there is allegations
against a Texas resident corporation {28 U.S.C. 1441(b)}. By voluntarily entering
into a contract of insurance in Texas defendant has waived its choice of jurisdiction
and venue.
C. Venue
3. Venue is proper in this court as all relevant acts necessary to complete this
contract occurred or should have been performed in Travis County Texas.
D. Facts
4. On June 5, 2004, at Austin, Travis County, Texas plaintiff and defendants
Apex Insurance, Burn and Wilcox and Essex entered into an insurance contract in
that defendants jointly and singly agreed to contractually provide both coverage for
liability for allegations of liability to third parties and for the defense of such
allegations f such became necessary. Such policy had effective dates of June 5, 2004
through June 5, 2005. Plaintiff paid all required premiums and in all respects
complied with the contract.
5. On October 5, 2005 plaintiff was served by the Texas Secretary of State
with a copy of a citation alleging injury for a covered peril occurring on October 28,
2004, a period within the coverage dates of its insurance contract. Such injury was
alleged to have occurred on the coverage premises located at 820 E. Anderson Lane,
Austin, Travis County Texas and was filed in the 250" District Court of TravisCounty Texas under Cause Number D1GN05002821
6. On October 5, 2005, plaintiff, in compliance with the terms of his insurance
contract forwarded to defendant Essex Insurance by facsimile a copy of such suit. A
copy of such facsimile receipt is herein attached and marked as Exhibit “A” to this
suit as if recited verbatim in these pleadings. Subsequent to this, plaintiff's
employees made inquiry with all defendants in regard to the status of the claim.
Plaintiff was informed that such claim was being “processed” and response would be
forthcoming.
7. On January 28, 2006 a default judgment was obtained by Liberty Insurance
as assignee of Raymond Dabe, original plaintiff. The default was based upon no
answer being filed. A copy of such judgment is herein attached and marked as
Exhibit “B” as if recited verbatim in these pleadings.
8. On October 11, 2006, plaintiffs were notified of the existence of such
judgment with a written demand from the Travis County Precinct 2 Constable for
satisfaction of the judgment. A copy of such notice is herein attached and marked as
Exhibit “C” as if recited verbatim in these pleadings. Plaintiff notified all defendants
of such notice and provided copies of such judgment to all defendants.
9. On October 14, 2006 seizure of property located at the insured premises
was effected by the constable of Travis County Texas.
10. On November 21, 2006, plaintiff notified Essex Insurance of the existence
of the seizure and the notice that had been previously forwarded to it. Defendants
failed and refused to honor such claim but did agree to undertake the defense of such
claim. A copy of such correspondence is herein attached and marked as Exhibit “D”
as if recited verbatim in these pleadings.
11. On July 5, 2007 plaintiff notified all defendants in writing of its claims in
this matter. A copy of such notice is herein attached and marked as Exhibit “E” as if
recited verbatim in these pleadings.
12. On September 24, 2007, in an undated response, defendant Essex denied
the claim in response to the plaintiffs letter of July 5, 2007. A copy of such response
is herein attached and marked as Exhibit “F” as if recited verbatim in these
pleadings.
A. Vicarious Liability - Agency
13. At the time of the incident made basis of this suit, defendant Essex had
intentionally granted Apex National Insurance Company and Burns &f Wilcox the
authority to act on Essex’s behalf. Upon the solicitation of Apex and Burns &
Wilcox, defendant Essex undertook the contract of insurance on behalf of the
defendants and in favor of plaintiff.14. At the time of the placement of the insurance contract, defendants Apex
and Burns & Wilcox were was acting within the scope of the authority granted by
defendant Essex
E. Count 1 - Late Payment of Claim
15. Plaintiff was an insured under a contract of indemnity insurance issued by
defendant.
16. Defendant Essex is a surplus lines company not licensed to transact
insurance in the State of Texas. Defendant is a corporation writing insurance in the
State of Texas as a surplus lines carrier as defined in the Texas Insurance Code
Section 542.052(20). Defendant Apex National Insurance Group is a direct agent of
Defendant Burns & Wilcox, Ltd. which is a broker of insurance for Defendant
Essex.
17. Plaintiff suffered a loss covered by the policy and gave proper notice to
defendant of plaintiff's claim on October 5, 2005 by facsimile to Essex Insurance in
Glen Allen Va.
18. Defendant is liable for the claim and had a duty to pay the claim in a timely
manner
19. Defendant breached the duty by not timely performing its contractual duties
in the following respects:
(A) acknowledging, investigating, or requesting information regarding the
claim. Defendants were given timely notice of the pendency of such
claim and failed and refused to take any actions they were
contractually obligated to perform.
(B) accepting, rejecting or requesting an extension of time to investigate
the claim.
(C) paying the claim after accepting it.
20. Plaintiff seeks liquidated damages in the amount of at least $54.000.00,
which is within the jurisdictional limits of this court.
21. Plaintiff seeks unliquidated damages within the jurisdictional limits of this
court.
22. Statutory damages. Plaintiff is entitled to recover actual damages of the
amount of the claim, which is $54.000.00, and under Texas Insurance Code section542,060(a), statutory damages of 18% of the amount of the claim, which is $1961.49
from October 5, 2005 to date of filing of this suit
23. Attorney fees. Plaintiff is entitled to recover reasonable and necessary
attorney fees under Texas Insurance Code section 542.060(b).
G. Count 2 - Breach of Contract
24. Plaintiff would re-allege all facts contained in count 1 of this petition
25. In addition to other counts, defendant breached defendant’s contract with
plaintiff.
26. On June 5, 2004, plaintiff and defendant executed a valid and enforceable
written contract. Plaintiff attaches a copy of the contract as Exhibit G and
incorporates it by reference. The contract provided that plaintiff would indemnify
and protect plaintiff from those risks identified in the insurance contact entered into.
27. Plaintiff fully performed plaintiff's contractual obligations by timely
payment of all contractual premiums when due.
28. Defendant materially breached the contract by failing and refusing to
indemnify and defend plaintiff from the listed exposures contractually agreed upon.
29. In addition to general damages, defendant’s breach caused injury to
plaintiff, which resulted in the following damages:
a) Lost profits, which is the amount of profits that plaintiff can show it lost
as a natural and probable consequence of the breach of contract.
b) Cost of mitigation of damages, which is the amount plaintiff incurred in
attempting to mitigate its damages after the breach of contract.
c) Loss of credit reputation, which is measured by plaintiffs diminished
ability to borrow money or to obtain goods on time.
d) Reliance damages, which are expenditures made by the plaintiff in
reliance on the contract.
e) Out-of-pocket damages, which is the difference between the amount the
plaintiff paid and the value of what the plaintiff received.
f) Loss of credit reputation, which is measured by plaintiff's diminished
ability to borrow money or to obtain goods on time.
g) Loss of goodwill, which is the amount by which the net earnings of thebusiness exceed normal earnings in the same or similar business.
H. Conditions Precedent
30. All conditions precedent to plaintiff's claim for relief have been performed
or have occurred,
I. Request for Disclosure
31. Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant
disclose, within 50 days of the service of this request, the information or material
described in Rule 194.2.
J. Prayer
33. For these reasons, plaintiff asks that the court issue citation for defendant to
appear and answer, and that plaintiff be awarded a judgment against defendant for
the following:
a. Actual damages.
b. Statutory damages.
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Attorney fees.
All other relief to which plaintiff is entitled.
f.
\ Yi . Respectfully submitted:
AX
DOUGLAS P. MORAN- SBNT4420000
ATTORNEY FOR PLAINTIFF, RASHID
NUTRITION
3724 FM 1960 WEST; SUITE 106
HOUSTON, TEXAS 77068
(281) 444-8202; FAX (281) 444-1175TRANSMISSION VERIFICATION REPORT
TIME +: 10/87/2885 11:59
NAME =: DAYSINN
FAX =: 51283925074
SER.# ; BROF4Q926167
DATE, TIME 18/87 11:58
FAX NO. /NAME 17783663356
DURATION 88:01:37
PAGE
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severe ecco se sm Filed CAUSE NO.: D-1-GN-07-003414 07 October 4 P2:57 Amalia Rodriguez-Mendoza District Clerk Travis District RASHID NUTRITION, INC, d/b/a IN THE DISTRICT COURT DAYS INN VS. OF TRAVIS COUNTY, TEXAS APEX NATIONAL INSURANCE 250TH GROUP, BURNS & WILCOX LTD., JUDICIAL DISTRICT ESSEX INSURANCE COMPANY, AND MARKEL SERVICES, INC PLAINTIFF’S ORIGINAL PETITION & REQUEST FOR DISCLOSURE COMES NOW, Rashid Nutrition, Inc. DBA: Days Inn, a Texas Corporation would be heard to complain of Apex National Insurance Group, Inc., Burns & Wilcox, LTD., Essex Insurance Company, and Markel Services, Inc.. For cause of action thereof, would state as follows: 1. Plaintiff Rashid Nutrition, Inc. DBA: Days Inn is a Texas Corporation doing business in Travis County Texas as Days Inn. Defendant Apex National Insurance Group, Inc is a Texas corporation doing business in Travis County, Texas. Defendant may be served with citation through its Agent for Service, Safeer_Hassan, 9100 Southwest Freeway, Suite 201 Houston, TX_77074. Such service shall be performed by private process service Von Moore. Defendant Burns & Wilcox, Ltd. is a corporation doing business in Travis County, Texas. Defendant may be served with citation on the Texas Secretary of State through the CT Corporation System, 350 North St. Paul St. Dallas, TX 75201. Such service shall be performed by Secretary of State. Defendant Markel Service, Inc. is a corporation doing business in Travis County, Texas. Defendant may be served with citation on the Texas Secretary of State through the CT Corporation System, 350 North St. Paul St. Dallas, TX 75201. Such service shall be performed by Secretary of State. BAR CODE # 428189Defendant Essex Insurance Company is a corporation doing business in Travis County, Texas. Defendant does_not have an accurate Attorney for Service address. Therefore, According to The Texas Insurance Code 804, Defendant may be served with citation on the Texas Insurance Commission. Defendant’s address is 4521 Highlands Parkway, Glen Allen, Virginia 23060-6418. Such service shall be performed by Texas Insurance Commission. A. Discovery Control Plan 1. Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure 190.3 B. Jurisdiction 2. The court has jurisdiction over defendant, a nonresident, because defendant, Markel Service, Inc d/b/a Essex Insurance Company purposefully availed itself of the privileges and benefits of conducting business in Texas by engaging in business in Texas by contracting by issuance of an insurance policy covering a risk in Travis County Texas with a Texas corporation, which contract was to be performed in whole or in part by defendant by coverage of the risk and payment of premiums by plaintiff. This suit is non removable from the Texas court as there is allegations against a Texas resident corporation {28 U.S.C. 1441(b)}. By voluntarily entering into a contract of insurance in Texas defendant has waived its choice of jurisdiction and venue. C. Venue 3. Venue is proper in this court as all relevant acts necessary to complete this contract occurred or should have been performed in Travis County Texas. D. Facts 4. On June 5, 2004, at Austin, Travis County, Texas plaintiff and defendants Apex Insurance, Burn and Wilcox and Essex entered into an insurance contract in that defendants jointly and singly agreed to contractually provide both coverage for liability for allegations of liability to third parties and for the defense of such allegations f such became necessary. Such policy had effective dates of June 5, 2004 through June 5, 2005. Plaintiff paid all required premiums and in all respects complied with the contract. 5. On October 5, 2005 plaintiff was served by the Texas Secretary of State with a copy of a citation alleging injury for a covered peril occurring on October 28, 2004, a period within the coverage dates of its insurance contract. Such injury was alleged to have occurred on the coverage premises located at 820 E. Anderson Lane, Austin, Travis County Texas and was filed in the 250" District Court of TravisCounty Texas under Cause Number D1GN05002821 6. On October 5, 2005, plaintiff, in compliance with the terms of his insurance contract forwarded to defendant Essex Insurance by facsimile a copy of such suit. A copy of such facsimile receipt is herein attached and marked as Exhibit “A” to this suit as if recited verbatim in these pleadings. Subsequent to this, plaintiff's employees made inquiry with all defendants in regard to the status of the claim. Plaintiff was informed that such claim was being “processed” and response would be forthcoming. 7. On January 28, 2006 a default judgment was obtained by Liberty Insurance as assignee of Raymond Dabe, original plaintiff. The default was based upon no answer being filed. A copy of such judgment is herein attached and marked as Exhibit “B” as if recited verbatim in these pleadings. 8. On October 11, 2006, plaintiffs were notified of the existence of such judgment with a written demand from the Travis County Precinct 2 Constable for satisfaction of the judgment. A copy of such notice is herein attached and marked as Exhibit “C” as if recited verbatim in these pleadings. Plaintiff notified all defendants of such notice and provided copies of such judgment to all defendants. 9. On October 14, 2006 seizure of property located at the insured premises was effected by the constable of Travis County Texas. 10. On November 21, 2006, plaintiff notified Essex Insurance of the existence of the seizure and the notice that had been previously forwarded to it. Defendants failed and refused to honor such claim but did agree to undertake the defense of such claim. A copy of such correspondence is herein attached and marked as Exhibit “D” as if recited verbatim in these pleadings. 11. On July 5, 2007 plaintiff notified all defendants in writing of its claims in this matter. A copy of such notice is herein attached and marked as Exhibit “E” as if recited verbatim in these pleadings. 12. On September 24, 2007, in an undated response, defendant Essex denied the claim in response to the plaintiffs letter of July 5, 2007. A copy of such response is herein attached and marked as Exhibit “F” as if recited verbatim in these pleadings. A. Vicarious Liability - Agency 13. At the time of the incident made basis of this suit, defendant Essex had intentionally granted Apex National Insurance Company and Burns &f Wilcox the authority to act on Essex’s behalf. Upon the solicitation of Apex and Burns & Wilcox, defendant Essex undertook the contract of insurance on behalf of the defendants and in favor of plaintiff.14. At the time of the placement of the insurance contract, defendants Apex and Burns & Wilcox were was acting within the scope of the authority granted by defendant Essex E. Count 1 - Late Payment of Claim 15. Plaintiff was an insured under a contract of indemnity insurance issued by defendant. 16. Defendant Essex is a surplus lines company not licensed to transact insurance in the State of Texas. Defendant is a corporation writing insurance in the State of Texas as a surplus lines carrier as defined in the Texas Insurance Code Section 542.052(20). Defendant Apex National Insurance Group is a direct agent of Defendant Burns & Wilcox, Ltd. which is a broker of insurance for Defendant Essex. 17. Plaintiff suffered a loss covered by the policy and gave proper notice to defendant of plaintiff's claim on October 5, 2005 by facsimile to Essex Insurance in Glen Allen Va. 18. Defendant is liable for the claim and had a duty to pay the claim in a timely manner 19. Defendant breached the duty by not timely performing its contractual duties in the following respects: (A) acknowledging, investigating, or requesting information regarding the claim. Defendants were given timely notice of the pendency of such claim and failed and refused to take any actions they were contractually obligated to perform. (B) accepting, rejecting or requesting an extension of time to investigate the claim. (C) paying the claim after accepting it. 20. Plaintiff seeks liquidated damages in the amount of at least $54.000.00, which is within the jurisdictional limits of this court. 21. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court. 22. Statutory damages. Plaintiff is entitled to recover actual damages of the amount of the claim, which is $54.000.00, and under Texas Insurance Code section542,060(a), statutory damages of 18% of the amount of the claim, which is $1961.49 from October 5, 2005 to date of filing of this suit 23. Attorney fees. Plaintiff is entitled to recover reasonable and necessary attorney fees under Texas Insurance Code section 542.060(b). G. Count 2 - Breach of Contract 24. Plaintiff would re-allege all facts contained in count 1 of this petition 25. In addition to other counts, defendant breached defendant’s contract with plaintiff. 26. On June 5, 2004, plaintiff and defendant executed a valid and enforceable written contract. Plaintiff attaches a copy of the contract as Exhibit G and incorporates it by reference. The contract provided that plaintiff would indemnify and protect plaintiff from those risks identified in the insurance contact entered into. 27. Plaintiff fully performed plaintiff's contractual obligations by timely payment of all contractual premiums when due. 28. Defendant materially breached the contract by failing and refusing to indemnify and defend plaintiff from the listed exposures contractually agreed upon. 29. In addition to general damages, defendant’s breach caused injury to plaintiff, which resulted in the following damages: a) Lost profits, which is the amount of profits that plaintiff can show it lost as a natural and probable consequence of the breach of contract. b) Cost of mitigation of damages, which is the amount plaintiff incurred in attempting to mitigate its damages after the breach of contract. c) Loss of credit reputation, which is measured by plaintiffs diminished ability to borrow money or to obtain goods on time. d) Reliance damages, which are expenditures made by the plaintiff in reliance on the contract. e) Out-of-pocket damages, which is the difference between the amount the plaintiff paid and the value of what the plaintiff received. f) Loss of credit reputation, which is measured by plaintiff's diminished ability to borrow money or to obtain goods on time. g) Loss of goodwill, which is the amount by which the net earnings of thebusiness exceed normal earnings in the same or similar business. H. Conditions Precedent 30. All conditions precedent to plaintiff's claim for relief have been performed or have occurred, I. Request for Disclosure 31. Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194.2. J. Prayer 33. For these reasons, plaintiff asks that the court issue citation for defendant to appear and answer, and that plaintiff be awarded a judgment against defendant for the following: a. Actual damages. b. Statutory damages. c. Prejudgment and postjudgment interest. d. Court costs. e. Attorney fees. All other relief to which plaintiff is entitled. f. \ Yi . Respectfully submitted: AX DOUGLAS P. MORAN- SBNT4420000 ATTORNEY FOR PLAINTIFF, RASHID NUTRITION 3724 FM 1960 WEST; SUITE 106 HOUSTON, TEXAS 77068 (281) 444-8202; FAX (281) 444-1175TRANSMISSION VERIFICATION REPORT TIME +: 10/87/2885 11:59 NAME =: DAYSINN FAX =: 51283925074 SER.# ; BROF4Q926167 DATE, TIME 18/87 11:58 FAX NO. /NAME 17783663356 DURATION 88:01:37 PAGE