Preview
FILED
1/24/2022 12:32 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-21-15195
DIVYA TINSMAN § 1N THE DISTRICT COURT
Plaintiff §
§
vs. §
§ 298TH JUDICIAL DISTRICT
STATE FARM MUTUAL AUTOMOBILE §
INSURANCE COMPANY; AND THOMAS §
COUCH §
Defendants § DALLAS COUNTY, TEXAS
DEFENDANTS’ FIRST AMENDED ANSWER
COMES NOW, State Farm Mutual Automobile Insurance Company and Thomas Couch,
Defendants in the above styled and numbered cause and files their First Amended Answer to
Plaintiff‘s Original Petition and in support thereof would respectfully represent and show unto the
Court the following:
I.
Defendants deny each and every, all and singular, the material allegations contained in
Plaintiffs Original Petition or latest amended petition and demands strict proof thereof by a
preponderance of the evidence.
H.
Further answering, Defendants would show that Plaintiff’s recovery of medical or
healthcare expenses is limited to the amount actually paid or incurred by or on behalf of Plaintiff
as mandated by the Tex. Civ. Prac. & Rem. Code § 41.0105 and the Texas Supreme Court’s
decision in Haygood v. De Escobedo. Pleading further, to the extent that Plaintiff has or had
coverage under a health insurance policy, hospitalization insurance policy, accident insurance
policy, a “health benefit plan” as defined by Section 146.001(1) Tex. Civ. Prac. & Rem. Code,
and/or any other insurance and/or indemnity coverage that would be applicable to, or provide
coverage for, any of the medical and/or healthcare expenses allegedly incurred by Plaintiff in
DEFENDANTS’ FIRST AMENDED ANSWER PAGE l
connection with the incident in question and/or the injuries allegedly resulting therefrom,
Defendants would show that to the extent that Plaintiff s health care service provider(s) failed
and/or refiised to timely and directly bill Plaintiff’s insurer and/or health benefit plan for health
care services provided to Plaintiff and/or for health care expenses incurred by Plaintiff, 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 Plaintiff. See Tex. Civ. Prac. & Rem. Code § 146.003, et seq. (“Certain Claims by Health Care
Service Providers Barred”).
III.
Defendants would show that Plaintiff s claims for medical or health care expenses, with
regard to any treating provider, should be limited to, and may not exceed, those rates/charges that
would be evaluated as “reasonable and regular” under the hospital lien statute, codified in Tex.
Prop. Code, Chapter 55.
IV.
Defendants would assert that the Court should instruct the jury as to whether any
recoveries sought by Plaintiff is subject to federal or state income taxes. Pleading further and in
the strict alternative, Defendants would show that Plaintiff has failed to comply with Texas Civil
Practice and Remedies Code Section 18.091, which requires Plaintiffs who seek loss of earnings
and loss of earning capacity, to provide evidence in the form of a net loss after reduction for income
tax payments or unpaid tax liability pursuant to federal income tax law.
V.
Defendants would further plead to the extent Plaintiff has received any monies or
settlement from any alleged joint tortfeasor or in accordance with the terms of any insurance
DEFENDANTS’ FIRST AMENDED ANSWER PAGE 2
policy, worker’s compensation policy or any other source arising or related to the incident made
the basis of this suit, Defendants would show that pursuant to Texas common law and the one
satisfaction rule, Defendants are entitled to an ofiset or a credit with regard to said amounts.
VI.
In the unlikely event of any recovery whatsoever by Plaintiff, Defendants affirmatively
plead the provisions of the Texas Finance Code and would show that the recovery of pre-judgment
and post-judgment interest are subject to and limited by the provisions thereof, including and not
limited to: Tex. R. Civ. Stat, Art. 5069-1.05 § 6; Sections 304.003, 304.005, 304.103, 304.104,
304.1045, 304.105, 304.107; and/or TEX. CIV. PRAC. & REM. CODE Chapter 41.
VII.
Defendants would show that Plaintiff had a medical condition which pre-existed this
accident and that did not result from this accident. Defendants are not responsible for Plaintiff’s
medical condition and damages, if any, attributable to Plaintiff s pre-existing condition not caused
by this accident.
VIII.
While denying that Plaintiff sustained injuries and suffered the incapacities as alleged,
Defendants would show that the injuries sustained by Plaintiff prior and/or subsequent to the date
of the accident made the basis of this suit contributed in at least some part to any incapacity of
Plaintiff.
IX.
Defendants would further show that Plaintiff has failed to mitigate her damages as a
reasonable prudent person would have done under the same or similar circumstances and that such
failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiff s damages, if any.
DEFENDANTS’ FIRST AMENDED ANSWER PAGE 3
X.
Defendants reserve the right to assert any other legal or policy provision, term, definition,
condition precedent, or exclusion as the litigation progresses and as any new or additional facts
are discovered or ascertained by Defendants.
XI.
NOTICE PURSUANT TO TEXAS RULE OF CIVIL. PROCEDURE 193.7
Defendant gives notice of intent to utilize items produced by the other parties in discovery
in any pre-trial proceeding or the trial of this cause, and the authenticity of such items is self-
proven pursuant to Texas Rule of Civil Procedure 193.7.
XII.
Defendants have requested a jury trial. The required fee has been tendered.
WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon final trial and
hearing hereof, that no recovery be had from Defendants, but that Defendants go hence without
delay and recover their costs, and for such other and further relief to which Defendants may be
justly entitled and will ever pray.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
4-41
CARLOS A. BALIDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, TX 75231
Tel: 214-749-4805
Fax: 214-760—1670
balidoedocsnotifications@wbclawfirm.com
DEFENDANTS’ FIRST AMENDED ANSWER PAGE 4
CERTIFICATE OF SERVICE
This is to certify that on the Zith day of Januag, 2022, a true and correct copy of the
foregoing document has been served on all attorneys of record, in compliance with Rule 21a of
the Texas Rules of Civil Procedure.
Christopher K. Provost
Shelly Greco
Witherite Law Group, PLLC
1004 N. Central Expy., Suite 400
Dallas, TX 75231
214-378-6665
214-378-6670 fax
christopher.provost@witheritelaw.com
shellv.greco@witheritelaw.com
Ant/Z...»
CARLOS A. BALIDO
DEFENDANTS’ FIRST AMENDED ANSWER PAGE 5
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.
Sophia Kim on behalf of Carlos Balido
Bar No. 1631230
Sophia.Kim@wbclawfirm.com
Envelope ID: 61062065
Status as of 1/25/2022 8:42 AM CST
Associated Case Party: DIWA TINSMAN
Name BarNumber Email TimestampSubmitted Status
Tiffany Florer tiffany.florer@witheritelaw.com 1/24/2022 12:32:36 AM SENT
Christopher Provost Christopher.Provost@witheritelaw.com 1/24/2022 12:32:36 AM SENT
Associated Case Party: STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Name BarNumber Email TimestampSubmitted Status
Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 1/24/2022 12:32:36 AM SENT
Preview
FILED 1/24/2022 12:32 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-21-15195 DIVYA TINSMAN § 1N THE DISTRICT COURT Plaintiff § § vs. § § 298TH JUDICIAL DISTRICT STATE FARM MUTUAL AUTOMOBILE § INSURANCE COMPANY; AND THOMAS § COUCH § Defendants § DALLAS COUNTY, TEXAS DEFENDANTS’ FIRST AMENDED ANSWER COMES NOW, State Farm Mutual Automobile Insurance Company and Thomas Couch, Defendants in the above styled and numbered cause and files their First Amended Answer to Plaintiff‘s Original Petition and in support thereof would respectfully represent and show unto the Court the following: I. Defendants deny each and every, all and singular, the material allegations contained in Plaintiffs Original Petition or latest amended petition and demands strict proof thereof by a preponderance of the evidence. H. Further answering, Defendants would show that Plaintiff’s recovery of medical or healthcare expenses is limited to the amount actually paid or incurred by or on behalf of Plaintiff as mandated by the Tex. Civ. Prac. & Rem. Code § 41.0105 and the Texas Supreme Court’s decision in Haygood v. De Escobedo. Pleading further, to the extent that Plaintiff has or had coverage under a health insurance policy, hospitalization insurance policy, accident insurance policy, a “health benefit plan” as defined by Section 146.001(1) Tex. Civ. Prac. & Rem. Code, and/or any other insurance and/or indemnity coverage that would be applicable to, or provide coverage for, any of the medical and/or healthcare expenses allegedly incurred by Plaintiff in DEFENDANTS’ FIRST AMENDED ANSWER PAGE l connection with the incident in question and/or the injuries allegedly resulting therefrom, Defendants would show that to the extent that Plaintiff s health care service provider(s) failed and/or refiised to timely and directly bill Plaintiff’s insurer and/or health benefit plan for health care services provided to Plaintiff and/or for health care expenses incurred by Plaintiff, 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 Plaintiff. See Tex. Civ. Prac. & Rem. Code § 146.003, et seq. (“Certain Claims by Health Care Service Providers Barred”). III. Defendants would show that Plaintiff s claims for medical or health care expenses, with regard to any treating provider, should be limited to, and may not exceed, those rates/charges that would be evaluated as “reasonable and regular” under the hospital lien statute, codified in Tex. Prop. Code, Chapter 55. IV. Defendants would assert that the Court should instruct the jury as to whether any recoveries sought by Plaintiff is subject to federal or state income taxes. Pleading further and in the strict alternative, Defendants would show that Plaintiff has failed to comply with Texas Civil Practice and Remedies Code Section 18.091, which requires Plaintiffs who seek loss of earnings and loss of earning capacity, to provide evidence in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to federal income tax law. V. Defendants would further plead to the extent Plaintiff has received any monies or settlement from any alleged joint tortfeasor or in accordance with the terms of any insurance DEFENDANTS’ FIRST AMENDED ANSWER PAGE 2 policy, worker’s compensation policy or any other source arising or related to the incident made the basis of this suit, Defendants would show that pursuant to Texas common law and the one satisfaction rule, Defendants are entitled to an ofiset or a credit with regard to said amounts. VI. In the unlikely event of any recovery whatsoever by Plaintiff, Defendants affirmatively plead the provisions of the Texas Finance Code and would show that the recovery of pre-judgment and post-judgment interest are subject to and limited by the provisions thereof, including and not limited to: Tex. R. Civ. Stat, Art. 5069-1.05 § 6; Sections 304.003, 304.005, 304.103, 304.104, 304.1045, 304.105, 304.107; and/or TEX. CIV. PRAC. & REM. CODE Chapter 41. VII. Defendants would show that Plaintiff had a medical condition which pre-existed this accident and that did not result from this accident. Defendants are not responsible for Plaintiff’s medical condition and damages, if any, attributable to Plaintiff s pre-existing condition not caused by this accident. VIII. While denying that Plaintiff sustained injuries and suffered the incapacities as alleged, Defendants would show that the injuries sustained by Plaintiff prior and/or subsequent to the date of the accident made the basis of this suit contributed in at least some part to any incapacity of Plaintiff. IX. Defendants would further show that Plaintiff has failed to mitigate her damages as a reasonable prudent person would have done under the same or similar circumstances and that such failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiff s damages, if any. DEFENDANTS’ FIRST AMENDED ANSWER PAGE 3 X. Defendants reserve the right to assert any other legal or policy provision, term, definition, condition precedent, or exclusion as the litigation progresses and as any new or additional facts are discovered or ascertained by Defendants. XI. NOTICE PURSUANT TO TEXAS RULE OF CIVIL. PROCEDURE 193.7 Defendant gives notice of intent to utilize items produced by the other parties in discovery in any pre-trial proceeding or the trial of this cause, and the authenticity of such items is self- proven pursuant to Texas Rule of Civil Procedure 193.7. XII. Defendants have requested a jury trial. The required fee has been tendered. WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon final trial and hearing hereof, that no recovery be had from Defendants, but that Defendants go hence without delay and recover their costs, and for such other and further relief to which Defendants may be justly entitled and will ever pray. Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. 4-41 CARLOS A. BALIDO State Bar No. 01631230 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 Tel: 214-749-4805 Fax: 214-760—1670 balidoedocsnotifications@wbclawfirm.com DEFENDANTS’ FIRST AMENDED ANSWER PAGE 4 CERTIFICATE OF SERVICE This is to certify that on the Zith day of Januag, 2022, a true and correct copy of the foregoing document has been served on all attorneys of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure. Christopher K. Provost Shelly Greco Witherite Law Group, PLLC 1004 N. Central Expy., Suite 400 Dallas, TX 75231 214-378-6665 214-378-6670 fax christopher.provost@witheritelaw.com shellv.greco@witheritelaw.com Ant/Z...» CARLOS A. BALIDO DEFENDANTS’ FIRST AMENDED ANSWER PAGE 5 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. Sophia Kim on behalf of Carlos Balido Bar No. 1631230 Sophia.Kim@wbclawfirm.com Envelope ID: 61062065 Status as of 1/25/2022 8:42 AM CST Associated Case Party: DIWA TINSMAN Name BarNumber Email TimestampSubmitted Status Tiffany Florer tiffany.florer@witheritelaw.com 1/24/2022 12:32:36 AM SENT Christopher Provost Christopher.Provost@witheritelaw.com 1/24/2022 12:32:36 AM SENT Associated Case Party: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 1/24/2022 12:32:36 AM SENT