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FILED
3/10/2023 10:34 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE NO. DC-23-00793
SHAWN SMITH, IN THE DISTRICT COURT
Plaintiff
VS. 101“ JUDICIAL DISTRICT
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY AND
CHRISTIE LYNN GIBSON,
Defendants DALLAS COUNTY, TEXAS
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY
AND CHRISTIE LYNN GIBSON’S ORIGINAL ANSWER
Defendants ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and
CHRISTIE LYNN GIBSON’S files the following Original Answer:
I.
GENERAL DENIAL
Defendants ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and
CHRISTIE LYNN GIBSON (hereinafter “DEFENDANTS”) denies each and every, all and
singular one of the material allegations made and contained in Plaintiff‘s Original Petition and any
pleading which Plaintiff may hereinafter file by way of amendment or supplement, and, in
accordance with Texas law, demands that Plaintiff prove by a preponderance of the credible
evidence each and every such allegation made and contained therein.
II.
CONDITIONS PRECEDENT HAVE NOT BEEN ESTABLISHED
Pleading further, Defendants would assert that Plaintiff have failed to establish that she is
legally entitled to recover from the owner and/or operator of an uninsured or underinsured motor
vehicle. See Brainard vs. Trinity Universal Ins. C0., 216 S.W.3d 809, 818 (Tex. 2006). Allstate’s
contractual obligation to pay benefits to Plaintiff does not arise until liability and damages has
been determined. Since liability and damages have not been established against Defendants,
Plaintiff s claim for attorney’s fees or any other type of extra-contractual relief is premature.
DEFENDANTS’ ORIGINAL ANSWER Page 1
III.
PLAINTIFF’S RECOVERY OF PAST MEDICAL EXPENSES
IS LIMITED TO THOSE ACTUALLY PAID OR INCURRED
Defendants also ask that the Court apply Section 41.0105 of the Texas Civil Practice &
Remedies Code to limit Plaintiff’s recovery of past medical expenses to those that have actually
been paid or incurred.
IV.
A BONA FIDE DISPUTE EXISTS
Pleading further, if same be necessary, Defendants deny the Plaintiff’s extra-contractual
claims for breach of duty of good faith and unfair claim settlement practices for the reason that the
underlying claim reflects, at most a bona fide dispute between the parties concerning the Plaintiff s
alleged entitlement to certain benefits under the insurance policy in question, and as a result, extra-
contractual recovery is precluded. Pleading further, if same be necessary, Defendants plead that
its liability, if any, under the insurance policy in question has not become reasonably clear.
V.
OFFSETS SETTLEMENT CREDITS
—
Defendants contend that they are entitled to an offset of $32,500, representing the $30,000
paid and/or available to Plaintiff from the Liberty Mutual Insurance policy plus the $2,500 per
person in personal injury protection benefits that are available and/or paid to Plaintiff from the
Allstate policy.
VI.
JURY DEMAND
Defendants respectfully requests a jury trial.
WHEREFORE, PREMISES CONSIDERED, Defendants ALLSTATE FIRE AND
CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON prays that Plaintiff take
nothing by this suit against Defendants, that Defendants be discharged, and that the Court grants
DEFENDANTS’ ORIGINAL ANSWER Page 2
such other and further relief, both general and special, at law and in equity to which Defendant
may be justly entitled.
Respectfully submitted,
LAW OFFICE OF JOHN STILWELL, PLLC
/s/ John W. Stilwell
JOHN W. STILWELL
TBN: 19242800
6213 Chapel Hill, Suite B
Plano, Texas 75093
(972) 403-7400 Office
(972) 403-1100 Fax
(214) 727-4200 Cell
Email: iohn@stilwelldallas.com
ATTORNEY FOR DEFENDAN TS
ALLSTATE FIRE AND CASUALTY
INSUMNCE COMPANY AND CHRISTIE
LYNN GIBSON
CERTIFICATE OF SERVICE
This shall certify that on March 10, 2023, a copy of this document has been served upon
all counsel as follows:
VIA E-SERVE
Adam J. Flood
WITHERITE LAW GROUP, PLLC
10440 N. Central Expressway, Suite 400
Dallas, Texas 75231
/s/ John W. Stilwell
JOHN W. STILWELL
DEFENDANTS’ ORIGINAL ANSWER Page 3
VERIFICATION OF ANSWER
STATE OF TEXAS §
§
COUNTY OF COLLIN §
BEFORE ME,
the undersigned Notary Public, on this day personally appeared John W.
Stilwell, who, being by me duly sworn, upon his oath deposed and so stated:
My name is John W. Stilwell. I am attorney of record for ALLSTATE FIRE AND
CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON in the above-
referenced Cause. I have read the foregoing Original Answer. All facts stated in it are within my
W
personal knowledge and are true and correct.
JOHN W. STILWELL
SUBSCRIBED AND SWORN To this day , 2023,
by John W. Stilwell, to certify which witness my hand and seal ofoffice.
-
~y--:-.sa-:r....v-n'
ea“ "'0',
I
KFHSTY s ROBERTS
I' .3150’ Notary Public State of Texas
§.' “3%"; Comm Expires 09-25- 2024 NOTARY PUBLIg, STATE OF TEXAS
3% ‘ 53.?
Dru“ Notary iD 128671733
DEFENDANT S’ ORIGINAL ANSWER Page 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Jenny Stilwell on behalf of John Stilwell
Bar No. 19242800
stilwelldallas@gmail.com
Envelope ID: 73543182
Status as of 3/10/2023 10:37 AM CST
Associated Case Party: SHAWN SMITH
Name BarNumber Email TimestampSubmitted Status
Tiffany Florer tiffany.florer@witheritelaw.com 3/10/2023 10:34:12 AM SENT
Case Contacts
Name BarNumber Email Timestam pSubmitted Status
ADAM JFLOOD ADAM.FLOOD@WITHERITELAW.COM 3/10/2023 10:34:12 AM SENT
Associated Case Party: ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY
Name BarNumber Email TimestampSubmitted Status
Athena Hord Athena@stilwelldallas.com 3/10/2023 10:34:12 AM SENT
John Stilwell john@stilwelldallas.com 3/10/2023 10:34:12 AM SENT
Preview
FILED 3/10/2023 10:34 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY CAUSE NO. DC-23-00793 SHAWN SMITH, IN THE DISTRICT COURT Plaintiff VS. 101“ JUDICIAL DISTRICT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY AND CHRISTIE LYNN GIBSON, Defendants DALLAS COUNTY, TEXAS DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY AND CHRISTIE LYNN GIBSON’S ORIGINAL ANSWER Defendants ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON’S files the following Original Answer: I. GENERAL DENIAL Defendants ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON (hereinafter “DEFENDANTS”) denies each and every, all and singular one of the material allegations made and contained in Plaintiff‘s Original Petition and any pleading which Plaintiff may hereinafter file by way of amendment or supplement, and, in accordance with Texas law, demands that Plaintiff prove by a preponderance of the credible evidence each and every such allegation made and contained therein. II. CONDITIONS PRECEDENT HAVE NOT BEEN ESTABLISHED Pleading further, Defendants would assert that Plaintiff have failed to establish that she is legally entitled to recover from the owner and/or operator of an uninsured or underinsured motor vehicle. See Brainard vs. Trinity Universal Ins. C0., 216 S.W.3d 809, 818 (Tex. 2006). Allstate’s contractual obligation to pay benefits to Plaintiff does not arise until liability and damages has been determined. Since liability and damages have not been established against Defendants, Plaintiff s claim for attorney’s fees or any other type of extra-contractual relief is premature. DEFENDANTS’ ORIGINAL ANSWER Page 1 III. PLAINTIFF’S RECOVERY OF PAST MEDICAL EXPENSES IS LIMITED TO THOSE ACTUALLY PAID OR INCURRED Defendants also ask that the Court apply Section 41.0105 of the Texas Civil Practice & Remedies Code to limit Plaintiff’s recovery of past medical expenses to those that have actually been paid or incurred. IV. A BONA FIDE DISPUTE EXISTS Pleading further, if same be necessary, Defendants deny the Plaintiff’s extra-contractual claims for breach of duty of good faith and unfair claim settlement practices for the reason that the underlying claim reflects, at most a bona fide dispute between the parties concerning the Plaintiff s alleged entitlement to certain benefits under the insurance policy in question, and as a result, extra- contractual recovery is precluded. Pleading further, if same be necessary, Defendants plead that its liability, if any, under the insurance policy in question has not become reasonably clear. V. OFFSETS SETTLEMENT CREDITS — Defendants contend that they are entitled to an offset of $32,500, representing the $30,000 paid and/or available to Plaintiff from the Liberty Mutual Insurance policy plus the $2,500 per person in personal injury protection benefits that are available and/or paid to Plaintiff from the Allstate policy. VI. JURY DEMAND Defendants respectfully requests a jury trial. WHEREFORE, PREMISES CONSIDERED, Defendants ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON prays that Plaintiff take nothing by this suit against Defendants, that Defendants be discharged, and that the Court grants DEFENDANTS’ ORIGINAL ANSWER Page 2 such other and further relief, both general and special, at law and in equity to which Defendant may be justly entitled. Respectfully submitted, LAW OFFICE OF JOHN STILWELL, PLLC /s/ John W. Stilwell JOHN W. STILWELL TBN: 19242800 6213 Chapel Hill, Suite B Plano, Texas 75093 (972) 403-7400 Office (972) 403-1100 Fax (214) 727-4200 Cell Email: iohn@stilwelldallas.com ATTORNEY FOR DEFENDAN TS ALLSTATE FIRE AND CASUALTY INSUMNCE COMPANY AND CHRISTIE LYNN GIBSON CERTIFICATE OF SERVICE This shall certify that on March 10, 2023, a copy of this document has been served upon all counsel as follows: VIA E-SERVE Adam J. Flood WITHERITE LAW GROUP, PLLC 10440 N. Central Expressway, Suite 400 Dallas, Texas 75231 /s/ John W. Stilwell JOHN W. STILWELL DEFENDANTS’ ORIGINAL ANSWER Page 3 VERIFICATION OF ANSWER STATE OF TEXAS § § COUNTY OF COLLIN § BEFORE ME, the undersigned Notary Public, on this day personally appeared John W. Stilwell, who, being by me duly sworn, upon his oath deposed and so stated: My name is John W. Stilwell. I am attorney of record for ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and CHRISTIE LYNN GIBSON in the above- referenced Cause. I have read the foregoing Original Answer. All facts stated in it are within my W personal knowledge and are true and correct. JOHN W. STILWELL SUBSCRIBED AND SWORN To this day , 2023, by John W. Stilwell, to certify which witness my hand and seal ofoffice. - ~y--:-.sa-:r....v-n' ea“ "'0', I KFHSTY s ROBERTS I' .3150’ Notary Public State of Texas §.' “3%"; Comm Expires 09-25- 2024 NOTARY PUBLIg, STATE OF TEXAS 3% ‘ 53.? Dru“ Notary iD 128671733 DEFENDANT S’ ORIGINAL ANSWER Page 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jenny Stilwell on behalf of John Stilwell Bar No. 19242800 stilwelldallas@gmail.com Envelope ID: 73543182 Status as of 3/10/2023 10:37 AM CST Associated Case Party: SHAWN SMITH Name BarNumber Email TimestampSubmitted Status Tiffany Florer tiffany.florer@witheritelaw.com 3/10/2023 10:34:12 AM SENT Case Contacts Name BarNumber Email Timestam pSubmitted Status ADAM JFLOOD ADAM.FLOOD@WITHERITELAW.COM 3/10/2023 10:34:12 AM SENT Associated Case Party: ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Athena Hord Athena@stilwelldallas.com 3/10/2023 10:34:12 AM SENT John Stilwell john@stilwelldallas.com 3/10/2023 10:34:12 AM SENT