Preview
Electronically Submitted
1/4/2022 12:00 AM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
(2021-168)
CAUSE NO. CL-21-0772-D
PATRICIA GALVAN AND MARCIAL § IN THE COUNTY COURT
MARTINEZ §
§
VS. § AT LAW NO. 4
§
JALO TRANSPORTES SA DE CV, AND §
JAVIER ALVAREZ SANTANA § HIDALGO COUNTY, TEXAS
DEFENDANTS’ FIRST AMENDED ORIGINAL ANSWER, NOTICE OF RULE 194.2
INITIAL DISCLOSURES, AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendants, JALO TRANSPORTES SA DE CV and JAVIER ALVAREZ
SANTANA, and hereby make and file this their First Amended Original Answer to Plaintiffs’
Original Petition and in support hereof would show the Court as follows:
I.
GENERAL DENIAL
1.1 Defendants deny each and every, all and singular, the allegations in Plaintiffs’
Original Petition, and say that they are not true, in whole or in part, and demand strict proof thereof
on the trial of this cause.
II.
AFFIRMATIVE DEFENSES
Defendants, still urging and relying on matters hereinabove alleged, by way of further answer,
would plead as follows:
2.1 Any loss or damage sustained by the Plaintiffs at the time and place from the occasion
mentioned in Plaintiffs’ Original Petition was caused, in whole or in part, or contributed to, by the
Electronically Submitted
1/4/2022 12:00 AM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
negligence of Plaintiff driver and not on the part of these Defendants and these Defendants would
invoke the doctrine of comparative responsibility.
2.2 For further answer, if such be necessary, and pleading in the alternative, any recovery
Plaintiffs may have against these Defendants for the alleged injuries and damages must be
proportionally reduced in accordance with the fault of Plaintiff driver or of third persons or parties
over whose conduct these Defendants had no control, consistent with the principles of comparative
responsibility.
2.3 For further answer, if such be necessary, and pleading in the alternative, these
Defendants would urge the Court that these Defendants were not negligent at any point prior to or
on the occasion in question; that Plaintiff driver was more than 50% negligent on the occasion in
question and such negligence was a proximate cause of the occurrence in question.
2.4 For further answer, if such be necessary, and pleading in the alternative, Defendants
would urge the Court that the Plaintiffs were suffering from pre-existing medical conditions as that
term is defined by law at the time of the events made the basis of this lawsuit and Defendants should
not be responsible for any damages caused by any pre-existing medical conditions.
2.5 For further answer, if such be necessary, and pleading in the alternative, these
Defendants hereby plead the limitations on recoverable damages concerning medical or health care
expenses, if any, to the amount actually paid or incurred by or on behalf of Plaintiffs pursuant to
Section 41.0105 of the Texas Civil Practice and Remedies Code.
2.6 For further answer, if such be necessary, and pleading in the alternative, to the extent
that Plaintiffs were insured and entitled to health insurance benefits at any time relevant to this suit
but chose, instead, to seek care outside of Plaintiffs’ approved provider network and/or possibly
Defendants’ First Amended Original Answer /2021-168 Page 2
Electronically Submitted
1/4/2022 12:00 AM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
personally incur health care expenses by not timely submitting bills to Plaintiffs’ health insurer,
Plaintiffs failed to mitigate Plaintiffs’ damages, pursuant to Section 146.003 of the Texas Civil
Practice & Remedies Code. Furthermore, to the extent that Plaintiffs’ health care service provider(s)
failed and/or refused to timely and directly bill Plaintiffs’ insurer and/or health benefit plan for health
care services provided to the Plaintiffs and/or for health care expenses incurred by the Plaintiffs,
when required or authorized to do so, then claims by such health care service provider(s) are barred,
in whole or in part, and do not constitute medical expenses actually paid or incurred by or on behalf
of the Plaintiffs. TEX . CIV . PRAC. & REM . CODE §146.001, et seq.
2.7 For further answer, if such be necessary, and pleading in the alternative, these
Defendants assert their rights under Section 33.003 of the Texas Civil Practice and Remedies Code,
which permits the submission of questions determining the percentage of responsibility of each
claimant, each defendant, each settling person, and each responsible third party who has been
designated under Section 33.004.
2.8 For further answer, if such be necessary, and pleading in the alternative, these
Defendants plead the pre-judgment interest rate is the same as the post-judgment interest rate
pursuant to Section 304.103 of the Texas Finance Code. Pursuant to Section 304.1045 of the Texas
Finance Code, pre-judgment interest is not recoverable on a finding, if any, of future damages found
by the trier of fact.
2.9 For further answer, if such be necessary, and pleading in the alternative, if any
claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a
pecuniary value, or loss of inheritance, the loss must be presented in the form of a net loss after
reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law.
Defendants’ First Amended Original Answer /2021-168 Page 3
Electronically Submitted
1/4/2022 12:00 AM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
TEX . CIV . PRAC. & REM . CODE §18.091(a). If Plaintiffs seek recovery for loss of earnings or loss of
earning capacity, the jury should be instructed as to whether any recovery for compensatory damages
sought are subject to federal or state income taxes. TEX . CIV . PRAC. & REM . CODE §18.091(b).
2.10 For further answer, if such be necessary, and pleading in the alternative, Defendants
reserve the right to file any and all cross-actions, third party actions, counter-claims, discovery,
pleadings and motions they may deem proper.
III.
INITIAL DISCLOSURES
3.1 Pursuant to the Texas Rules of Civil Procedure, Defendants hereby request that
Plaintiffs provide the Initial Disclosures described in Rule 194.2 within 30-days from the date of
filing of the Defendants’ Original Answer.
IV.
JURY DEMAND
4.1 Defendants request that the above-styled and numbered cause be tried to a jury and
represent to the Court that the proper jury fee has been paid to the Clerk of this Court with the filing
of Defendant’s First Amended Original Answer.
WHEREFORE, PREMISES CONSIDERED, Defendants, JALO TRANSPORTES SA
DE CV and JAVIER ALVAREZ SANTANA, respectfully pray that Plaintiffs take nothing from
these Defendants and that the Court enter a judgment dismissing all claims against these Defendants
with prejudice and awarding all costs of court and expenses incurred herein, and for such other and
further relief, at law and in equity, general or special, to which these Defendants might show
Defendants’ First Amended Original Answer /2021-168 Page 4
Electronically Submitted
1/4/2022 12:00 AM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
themselves to be justly entitled to receive.
Respectfully submitted,
HODGE JAMES JILPAS & NICHOLS
Attorneys at Law
P.O. Box 534329 (78553)
1617 E. Tyler Ave., Suite A
Harlingen, Texas 78550
Telephone: (956) 425-7400
Facsimile: (956) 425-7707
/s/ Anthony B. James
Anthony B. James
State Bar No. 10537300
Email: ajames@hodgejames.com
Marco A. Jilpas
State Bar No. 24071331
Email: mjilpas@hodgejames.com
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing, Defendants’ First
Amended Original Answer, Notice of Rule 194.2 Initial Disclosures, and Jury Demand, has been
served on the 3rd day of January, 2022, to all attorneys of record via E-Service as follows:
Email: lit-docket@moore-firm.com
J. Michael Moore
Moore Law Firm
4900 North 10th Street, Suite F3
McAllen, Texas 78504
Attorney for Plaintiffs
/s/ Anthony B. James
Anthony B. James
Defendants’ First Amended Original Answer /2021-168 Page 5
Preview
Electronically Submitted 1/4/2022 12:00 AM Hidalgo County Clerk Accepted by: Sandra E. Falcon (2021-168) CAUSE NO. CL-21-0772-D PATRICIA GALVAN AND MARCIAL § IN THE COUNTY COURT MARTINEZ § § VS. § AT LAW NO. 4 § JALO TRANSPORTES SA DE CV, AND § JAVIER ALVAREZ SANTANA § HIDALGO COUNTY, TEXAS DEFENDANTS’ FIRST AMENDED ORIGINAL ANSWER, NOTICE OF RULE 194.2 INITIAL DISCLOSURES, AND JURY DEMAND TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defendants, JALO TRANSPORTES SA DE CV and JAVIER ALVAREZ SANTANA, and hereby make and file this their First Amended Original Answer to Plaintiffs’ Original Petition and in support hereof would show the Court as follows: I. GENERAL DENIAL 1.1 Defendants deny each and every, all and singular, the allegations in Plaintiffs’ Original Petition, and say that they are not true, in whole or in part, and demand strict proof thereof on the trial of this cause. II. AFFIRMATIVE DEFENSES Defendants, still urging and relying on matters hereinabove alleged, by way of further answer, would plead as follows: 2.1 Any loss or damage sustained by the Plaintiffs at the time and place from the occasion mentioned in Plaintiffs’ Original Petition was caused, in whole or in part, or contributed to, by the Electronically Submitted 1/4/2022 12:00 AM Hidalgo County Clerk Accepted by: Sandra E. Falcon negligence of Plaintiff driver and not on the part of these Defendants and these Defendants would invoke the doctrine of comparative responsibility. 2.2 For further answer, if such be necessary, and pleading in the alternative, any recovery Plaintiffs may have against these Defendants for the alleged injuries and damages must be proportionally reduced in accordance with the fault of Plaintiff driver or of third persons or parties over whose conduct these Defendants had no control, consistent with the principles of comparative responsibility. 2.3 For further answer, if such be necessary, and pleading in the alternative, these Defendants would urge the Court that these Defendants were not negligent at any point prior to or on the occasion in question; that Plaintiff driver was more than 50% negligent on the occasion in question and such negligence was a proximate cause of the occurrence in question. 2.4 For further answer, if such be necessary, and pleading in the alternative, Defendants would urge the Court that the Plaintiffs were suffering from pre-existing medical conditions as that term is defined by law at the time of the events made the basis of this lawsuit and Defendants should not be responsible for any damages caused by any pre-existing medical conditions. 2.5 For further answer, if such be necessary, and pleading in the alternative, these Defendants hereby plead the limitations on recoverable damages concerning medical or health care expenses, if any, to the amount actually paid or incurred by or on behalf of Plaintiffs pursuant to Section 41.0105 of the Texas Civil Practice and Remedies Code. 2.6 For further answer, if such be necessary, and pleading in the alternative, to the extent that Plaintiffs were insured and entitled to health insurance benefits at any time relevant to this suit but chose, instead, to seek care outside of Plaintiffs’ approved provider network and/or possibly Defendants’ First Amended Original Answer /2021-168 Page 2 Electronically Submitted 1/4/2022 12:00 AM Hidalgo County Clerk Accepted by: Sandra E. Falcon personally incur health care expenses by not timely submitting bills to Plaintiffs’ health insurer, Plaintiffs failed to mitigate Plaintiffs’ damages, pursuant to Section 146.003 of the Texas Civil Practice & Remedies Code. Furthermore, to the extent that Plaintiffs’ health care service provider(s) failed and/or refused to timely and directly bill Plaintiffs’ insurer and/or health benefit plan for health care services provided to the Plaintiffs and/or for health care expenses incurred by the Plaintiffs, when required or authorized to do so, then claims by such health care service provider(s) are barred, in whole or in part, and do not constitute medical expenses actually paid or incurred by or on behalf of the Plaintiffs. TEX . CIV . PRAC. & REM . CODE §146.001, et seq. 2.7 For further answer, if such be necessary, and pleading in the alternative, these Defendants assert their rights under Section 33.003 of the Texas Civil Practice and Remedies Code, which permits the submission of questions determining the percentage of responsibility of each claimant, each defendant, each settling person, and each responsible third party who has been designated under Section 33.004. 2.8 For further answer, if such be necessary, and pleading in the alternative, these Defendants plead the pre-judgment interest rate is the same as the post-judgment interest rate pursuant to Section 304.103 of the Texas Finance Code. Pursuant to Section 304.1045 of the Texas Finance Code, pre-judgment interest is not recoverable on a finding, if any, of future damages found by the trier of fact. 2.9 For further answer, if such be necessary, and pleading in the alternative, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the loss must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law. Defendants’ First Amended Original Answer /2021-168 Page 3 Electronically Submitted 1/4/2022 12:00 AM Hidalgo County Clerk Accepted by: Sandra E. Falcon TEX . CIV . PRAC. & REM . CODE §18.091(a). If Plaintiffs seek recovery for loss of earnings or loss of earning capacity, the jury should be instructed as to whether any recovery for compensatory damages sought are subject to federal or state income taxes. TEX . CIV . PRAC. & REM . CODE §18.091(b). 2.10 For further answer, if such be necessary, and pleading in the alternative, Defendants reserve the right to file any and all cross-actions, third party actions, counter-claims, discovery, pleadings and motions they may deem proper. III. INITIAL DISCLOSURES 3.1 Pursuant to the Texas Rules of Civil Procedure, Defendants hereby request that Plaintiffs provide the Initial Disclosures described in Rule 194.2 within 30-days from the date of filing of the Defendants’ Original Answer. IV. JURY DEMAND 4.1 Defendants request that the above-styled and numbered cause be tried to a jury and represent to the Court that the proper jury fee has been paid to the Clerk of this Court with the filing of Defendant’s First Amended Original Answer. WHEREFORE, PREMISES CONSIDERED, Defendants, JALO TRANSPORTES SA DE CV and JAVIER ALVAREZ SANTANA, respectfully pray that Plaintiffs take nothing from these Defendants and that the Court enter a judgment dismissing all claims against these Defendants with prejudice and awarding all costs of court and expenses incurred herein, and for such other and further relief, at law and in equity, general or special, to which these Defendants might show Defendants’ First Amended Original Answer /2021-168 Page 4 Electronically Submitted 1/4/2022 12:00 AM Hidalgo County Clerk Accepted by: Sandra E. Falcon themselves to be justly entitled to receive. Respectfully submitted, HODGE JAMES JILPAS & NICHOLS Attorneys at Law P.O. Box 534329 (78553) 1617 E. Tyler Ave., Suite A Harlingen, Texas 78550 Telephone: (956) 425-7400 Facsimile: (956) 425-7707 /s/ Anthony B. James Anthony B. James State Bar No. 10537300 Email: ajames@hodgejames.com Marco A. Jilpas State Bar No. 24071331 Email: mjilpas@hodgejames.com Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing, Defendants’ First Amended Original Answer, Notice of Rule 194.2 Initial Disclosures, and Jury Demand, has been served on the 3rd day of January, 2022, to all attorneys of record via E-Service as follows: Email: lit-docket@moore-firm.com J. Michael Moore Moore Law Firm 4900 North 10th Street, Suite F3 McAllen, Texas 78504 Attorney for Plaintiffs /s/ Anthony B. James Anthony B. James Defendants’ First Amended Original Answer /2021-168 Page 5