Motion to Amend in SUSAN KURUVILLA vs. STATE FARM LORD| Trellis.Law

On January 31, 2023 a Answer was filed involving a dispute between Kuruvilla, Susan, and State Farm Lord, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
5/25/2023 1:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY

CAUSE NO. DC-23-01565
SUSAN KURUVILLA, § JUDICIAL DISTRICT COURT OF

Plaintiff, g

V. g DALLAS COUNTY, TEXAS
STATE FARM LLOYDS, g

Defendant. g 68TH JUDICIAL DISTRICT
DEFENDANT STATE FARM LLOYDS’
AMENDED ANSWER TO PLAINTIFF ’S ORIGINAL PETITION

1. Defendant State Falm Lloyds (“State Falm”) ﬁles its Amended Answer to

Plaintiff’s Original Petition. Without waiving any of the defenses pursuant to the policy of

insurance that Plaintiff purports to be claiming in this lawsuit and still insisting upon any and all

policy conditions, exclusions, and other policy terms now or later arising, State Farm respectfully

shows the Court as follows:

I.
GENERAL DENIAL
2. As authorized by Rule 92 of the Texas Rules of Civil Procedure, State Farm

generally denies all of the material allegations contained in Plaintiff’s Petition and any amendment

or supplement to the Petition that Plaintiff may ﬁle in this lawsuit. In accordance with Texas law,

State Farm demands that Plaintiff proves, by credible evidence meeting the requisite standard of

proof, each and every allegation made and contained in this case.

II.
SPECIFIC DENIAL_S AND AF FIRMATIVE DEFENSES
3. Defendant alleges each of the following general and afﬁrmative defenses, expressly

reserving all of its rights to allege additional defenses, and or/to seek leave of Court to allege

additional defenses, when and if facts supporting such defenses become known to Defendant.

STATE FARM LLOYDS’ AMENDED ANSWER PAGE 1
US.357711565.01
4. Policy Terms, Conditions, and Limits. Plaintiff” s recovery, if any, will be subject

to all limits of liability set forth in Plaintiff’s policy for all coverages, endorsements, and optional

policy provisions.

5. Appraisal. Any recovery will be subject to the terms and conditions of the appraisal

provision in the Policy, including that neither party is entitled to recover costs including any

attorneys’ fees incurred for the appraisal proceeding.

6. Deductible. Any recovery will be subject to the amount of the applicable deductible

within the insurance policy.

7. Offset/Credit. Defendant is entitled to offsets and/or credits against Plaintiff’s

recovery, if any, for the amounts Defendant has already paid on the insurance claim at issue, if

any, and the amount of the deductible set forth in the Policy.

8. Defendant speciﬁcally denies that it violated any of the Texas Insurance Code or

Deceptive Trade Practices Act Provisions alleged by Plaintiff, and that any of its alleged actions

or omissions concerning Plaintiffs claim, which Defendant denies, were done knowingly,

intentionally, or in bad faith.

9. Texas Insurance Code. Plaintiff‘s claims under the Texas Insurance Code a are

barred because, among other things, (a) the procurement of Plaintiffs insurance policy was

reasonable and done with Plaintiffs full knowledge, understanding, and participation; (b)

Defendant did not breach the insurance policy under which Plaintiff purports to be claiming in this

lawsuit; (c) Defendant made no misrepresentations of material fact at any time; (d) Plaintiff has

not sustained any damages independent of Plaintiffs alleged breach-of-contract theory; (e) the

handling and investigation of Plaintiff’s insurance claim was reasonable; (f) any alleged liability

for Plaintiffs insurance claim did not become and is not reasonably clear; and (g) there is a bona

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 2
US.357711565.01
ﬁde coverage dispute concerning Plaintiff’s insurance claim and the policy of insurance under

which Plaintiff purports to be claiming in this lawsuit. Defendant had a reasonable basis for its

conduct based upon the information provided by Plaintiff and the resulting claim investigation. A
mere bona ﬁde coverage dispute does not constitute a breach of any duty of good faith and fair

dealing to any extent alleged by Plaintiff in this lawsuit. Moreover, a bona ﬁde controversy exists

in the valuation of Plaintiff’s claim and liability, if any, under the contract. Therefore, Plaintiff’s

extra-contractual causes of action are precluded.

10. Lack of Coverage Precludes Extra-Contractual Liability. Plaintiff has received

all beneﬁts owed under her policy. The existence of coverage and/or compensable damage for

Plaintiff s underlying insurance claim is mandatory to establish the basis of Plaintiff” s claims under

the Texas Insurance Code and the common law. Because Plaintiff’ s allegations are generally based

upon Defendant’s alleged failure to pay policy beneﬁts and because Defendant has already paid
—

all policy beneﬁts owed, if any — the absence of additional coverage precludes Plaintiff s Insurance

Code and extra-contractual claims against Defendant arising out of those allegations.

ll. Contributory Negligence and Comparative Fault. Plaintiff’s claims are barred,

in whole or in part, by the doctrines of contributory negligence and comparative fault.

12. Damages and loss caused by something other than the alleged storm. Plaintiff’s

claims are barred, in whole or in part, to the extent the damages and losses alleged in Plaintiff’s

Petition, none being admitted, pre-existed or post-dated the alleged date of loss.

13. Concurrent Causation. Defendant asserts the defense of concurrent causation.

Under the doctrine of concurrent causes, an insured’s recovery is limited to the amount of damage

caused by a covered peril.1 In other words, when a loss is caused by covered and non-covered

1
Wallis v. United Servs. Automobile Ass ’n, 2 S.W.3d 300, 302-03 (Tex. App—San Antonio 1999, pet. denied).

STATE FARM LLOYDS’ AMENDED ANSWER PAGE 3
US.357711565.01
perils, the insured may recover only that portion of the damage caused solely by the covered peril?

Because the insured is required to prove that the damage is covered by the policy, the burden of

segregating the damage attributable solely to the covered peril from the damage attributable3 to

the non-covered peril is a coverage issue on which the insured bears the burden of proof.

14. Coverage is Limited to Accidental and Direct Physical Loss. Plaintiff’ s claims

are barred, in who or in part, under the following provisions of the Policy:

SECTION I — LOSSES INSURED

COVERAGE A — DWELLING
We will pay for accidental direct physical loss to the property described in Coverage
A, unless the loss is excluded in SECTION I — LOSSES NOT INSURED or
otherwise excluded or limited in this policy. Accidental means happening by
chance, unexpectedly, and/or unintended from your standpoint. However, loss does
not include and we will not pay for, any diminution in value.

There is no coverage for the repair or replacement of undamaged property since there is no

sudden and accidental direct physical loss caused by a covered cause of loss.

15. Failure to Mitigate. Plaintiff s claims are barred to the extent Plaintiff failed to

mitigate her damages or protect her property from further loss, as required by her policy.

16. Due Process. To the extent Plaintiff seeks punitive damages, Defendant invokes its

right under the due process clause of the Fifth Amendment of the United States Constitution as

applied to the states through the Fourteenth Amendment of the United States Constitution.

Defendant afﬁrmatively pleads that Plaintiff’ s pleading of punitive and/or exemplary damages

violates the due process clauses of the Fifth and Fourteenth Amendments.

2
Hamilton Properties v. The American Insurance Co., 2014 WL 3055801, CA 3:12-CV—5046-B (N .D. Tex. 2014
July 7, 2014) (Boyle, J.); Travelers Indem. C0. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971); Wallis, 2 S.W.3d at
303.
Hamilton, 2014 WL 3055801, at *4; Wallis, 2 S.W.3d at 303 n.5.
3

STATE FARM LLOYDS’ AMENDED ANSWER PAGE 4
US.357711565.01
17. Punitive damages improper and subject to limitations. To the extent Plaintiff

seeks punitive damages against Defendant, assessment of punitive damages is improper because

Plaintiff failed to plead any predicate authorizing the recovery of punitive damages. Plaintiff is

unable to establish, by credible evidence meeting the requisite standard of proof, that Defendant

was actually aware of any harm which Plaintiff alleges to have sustained as a result of the handling

of Plaintiffs insurance claim; therefore, Plaintiff is not entitled to any alleged exemplary or

punitive damages because Plaintiff is unable to prove that Defendant was actually aware of an

extreme risk resulting from the handling of Plaintiff’s claim. Further, Plaintiff is unable to

establish, by clear and convincing evidence, that Defendant acted with malice; therefore, under

section 41 .001(7) of the Texas Civil Practice and Remedies Code, Plaintiff is not entitled to any

supposed exemplary or punitive damages that Plaintiff alleges in this lawsuit. Further, any award

of punitive damages must be limited to the greater of: (1) two times the amount of economic

damages plus an amount equal to any non-economic damages found by the jury, not to exceed

$750,000; or (2) two times the amount of economic damages plus $200,000, pursuant to the

statutory mandates of Texas Civil Practice & Remedies Code Section 41 .002-41.009.

18. Excessive Demand Doctrine. Plaintiffs claim for recovery of her alleged attorney

fees is barred in Whole or in part, or is subject to limitation or reduction, pursuant to the excessive

demand doctrine.4 Plaintiff‘s claim for attorney fees may be further reduced by the provisions of

Texas Insurance Code 542A.007.

19. Conditions Precedent. Defendant speciﬁcally denies that Plaintiff has complied

with all conditions precedent to recover beneﬁts under the insurance policy contract pursuant to

4
See, e.g., Triton 88, L.P. v. Star Elec., L.L.C., 411 S.W.3d 42, 65 (Tex. App—Houston [1st Dist] 2013, no pet.)
(citations omitted).

STATE FARM LLOYDS’ AMENDED ANSWER PAGE 5
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which Plaintiff has presented the insurance claim made the basis of this action and that Plaintiff

has complied with all conditions precedent to bringing her causes of action. Pursuant to the

following provisions of the Policy, Plaintiffs claims are barred in whole or in part by her failure

to comply With the following policy conditions:

SECTION I — CONDITIONS
i: 4: 4:

2. Your Duties After Loss. After a loss to which this insurance may apply, you must
cooperate with us in the investigation of the claim and also see that the following duties
are performed:

a. give prompt notice to us or our agent. . . . ;

b. protect the property from further damage or loss and also:

(1) make reasonable and necessary temporary repairs required to
protect the property; and

(2) keep an accurate record of repair expenses;

c. prepare an inventory of damaged or stolen personal property:

(1) showing in detail the quantity, description, age, replacement cost,
and amount of loss; and

(2) attaching all bills, receipts, and related documents that substantiate
the ﬁgures in the inventory;

d. as often as we reasonably require:

(1) exhibit the damaged property;

(2) provide us with any requested records and documents and allow us
to make copies;

*4:

e. submit to us, within 91 days after our request, your signed, sworn proof of loss
that sets forth, to the best of your knowledge and belief:

(1) the time and cause of loss;

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 6
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(2) interest of the insured and all others in the property involved and
all encumbrances on the property;

(3) other insurance that may cover the loss;

(4) changes in title or occupancy of the property during the term of
this policy;

(5) speciﬁcations of any damaged structure and detailed estimates for
repair of the damage;

*>1:

(7) receipts for additional living expenses incurred and records supporting
the fair rental value loss; and

>1: * >1:

6. Suit Against Us. No suit or action can be brought unless:

a. there has been compliance with the policy provisions;

>1: >1: >1:

20. Loss Settlement Provision/Condition: Replacement Cost Beneﬁts. Under the

insuring agreement, Plaintiff must ﬁrst repair or replace the damaged property to recover

replacement cost beneﬁts. Plaintiff lacks proof of completed repairs or replacement to any covered

property damage connected with her insurance claim. As such, Plaintiff’s recovery in this case, if

any, is currently limited to the actual cash value of the covered property damage.

21. Losses Not Insured. Plaintiff’s claims are barred, in whole or in part, under the

terms of the policy, including:

SECTION I — LOSSES NOT INSURED

l. We will not pay for any loss to the property described in Coverage A that consists of,
or is directly and immediately caused by one or more of the perils listed in items a.
through m. below, regardless of whether the loss occurs abruptly or gradually, involves
isolated or widespread damage, arises from natural or external forces, or occurs as a
result of any combination of these:

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 7
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**

g. wear, tear, decay, matting, scratching, deterioration, inherent Vice, latent defect, or
mechanical breakdown;

***

i. wet or dry rot;

***

k. settling, cracking, shrinking, bulging, or expansion of pavements, patios,
foundations (including slabs, basement walls, crawl space walls, and footings),
walls, ﬂoors, roofs, or ceilings;

l. all animals, birds, or insects

***

m. pressure from or presence or tree, shrub, or plant roots.

***

2. We will not pay for, under any part of this policy, any loss that would not have
occurred in the absence of one or more of the following excluded events. We will not
pay for such loss regardless of: (a) the cause of the excluded event; or (b) other causes
of the loss; or (c) whether other causes acted concurrently or in any sequence with the
excluded event to produce the loss; or (d) whether the event occurs abruptly or
gradually, involves isolated or widespread damage, occurs on or off the residence
premises, arises from any natural or external forces, or occurs as a result of any
combination of these:
***

b. Earth Movement, meaning the sinking, rising, shifting, expanding, or
contracting of earth, all regardless of whether combined with water,
sewage, or any material carried by, or otherwise moved by the earth.
Earth movement includes but is not limited to:

(l) earthquake;

(2) landslide, mudslide, or mudﬂow;

(3) sinkhole or subsidence;

(4) movement resulting from:

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 8
US.357711565.01
(a) improper compaction;

(b) site selection;

(d) excavation;

(5) erosion;

(6) pressure by surface or subsurface earth or ﬁll; or
***
c. Water, meaning:

(1) ﬂood;

(2) surface water. This does not include water solely caused by the release
of water from a swimming pool, spigot, sprinkler system, hose, or hydrant;

(3) waves (including tidal wave, tsunami, and seiche);

(4) tides or tidal water;

(5) overﬂow of any body of water (including any release, escape, or rising of any
body of water, or any water held, contained, controlled, or diverted by a dam,
levee, dike, or any type of water containment, diversion, or ﬂood control device);

(6) spray or surge from any of the items c.(l) through c.(5) described above,
all whether driven by wind or not;

(7) water or sewage from outside the residence premises plumbing system that
enters through sewers or drains, or water or sewage that enters into and overﬂows
from within a sump pump, sump pump well, or any other system designed to
remove subsurface water that is drained from the foundation area;

(8) water or sewage below the surface of the ground, including water or sewage
that exerts pressure on, or seeps or leaks through a building structure, sidewalk,
driveway, swimming pool, or other structure; or

(9) material carried or otherwise moved by any of the water or sewage, as
described in items c.(1) through c.(8) above.

* * *

g. Fungus, including:

(l) any loss of use or delay in rebuilding, repairing, or replacing covered
property, including any associated cost or expense, due to interference at the

STATE FARM LLOYDS’ AMENDED ANSWER PAGE 9
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residence premises or location of the rebuilding, repair, or replacement, by
fungus;

(2) any remediation offungus, including the cost to:

(a) remove the fungus from covered property or to repair, restore, or
replace that property; or

(b) tear out and replace any part of the building structure or other
property as needed to gain access to the fungus; or

(3) the cost of any testing or monitoring of air or property to conﬁrm the type,
absence, presence, or level offungus, whether performed prior to, during, or
after removal, repair, restoration, or replacement of covered property.

However, the presence offungus on covered property does not negate coverage for that
part of the covered property otherwise damaged by a loss insured.
***

3. We will not pay for, under any part of this policy, any loss consisting of one or more
of the items below. Further, we will not pay for any loss described in paragraphs 1. and
2. immediately above regardless of whether one or more of the following: (a) directly
or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same
time, or after the loss or any other cause of the loss:

***

b. defect, weakness, inadequacy, fault or unsoundness in:

***

(2) design, speciﬁcations, workmanship, repair, construction, renovation,
remodeling, grading, or compaction;

(3) materials used in repair, construction, renovation, remodeling, grading, or
compaction; or

(4) maintenance

of any property (including land, structures, or improvements of any kind) whether
on or off the residence premises; 0r

c. weather conditions.

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 10
US.357711565.01
22. Failure to State a Claim. Plaintiff’s extra-contractual claims are barred in Whole

or in part because they have failed to assert a claim with any basis in law or fact. Tex. R. CiV. P.

91 (a).

23. No waiver of rights through appraisal. By demanding or submitting to appraisal,

State Farm did not waive its right to determine if coverage applies under the Policy:
4. APPRAISAL
>1: * >1:

g. You and we do not waive any rights by demanding or submitting to an appraisal,

and retain all contractual rights to determine if coverage applies to each item in

dispute.

h. Appraisal is only available to determine the amount of the loss of each item in

dispute. The appraisers and the umpire have no authority to decide:

(l) any other questions of fact;
(2) questions of law;

(3) questions of coverage;

(4) other contractual issues;
* * *

Neither party will be awarded attorney fees.

24. Defendant has not knowingly or voluntarily waived any applicable defense and

reserves its right to assert and rely upon such other applicable defenses as may become available

or apparent during the course of this action.

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 11
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PRAYER
For the reasons stated Defendant, State Farm Lloyds, respectfully prays that Plaintiff,

Susan Kuruvilla, takes nothing by way of this lawsuit, and that State Farm Lloyds have such other

and further relief to Which it may be justly entitled, Whether at law or in equity.

Respectfully Submitted,

/s/ Susan E. Egeland
SUSAN E. EGELAND
State Bar No. 24040854
susan.egeland@faegredrinker.com
MATTHEW C. SAPP
State Bar No. 24063563
matt.sapp@faegredrinker.com
MAX A. MORAN
State Bar No. 24118717
max.moran@faegredrinker.com
FAEGRE DRINKER BIDDLE & REATH LLP
1717 Main Street, Suite 5400
Dallas, Texas 75201
(469) 357-2533
(469) 327-0860 (fax)

ATTORNEYS FOR DEFENDANT
STATE FARM LLOYDS

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been forwarded
to all counsel of record Via eFile Texas on May 24, 2023.

/S/ Susan E. Egeland
SUSAN E. EGELAND

STATE FARM LLOYDs’ AMENDED ANSWER PAGE 12
US.357711565.01
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.

Kelly Olson on behalf of Susan Egeland
Bar No. 24040854
kelly.olson@faegredrinker.com
Envelope ID: 76009142
Filing Code Description: Amended Answer - Amended General Denial
Filing Description: AMENDED
Status as of 5/25/2023 4:44 PM CST

Associated Case Party: SUSAN KURUVILLA

Name BarNumber Email TimestampSubmitted Status
Lillian Zuniga lillian@ck-firm.com 5/25/2023 1:48:02 PM SENT
Lillian Zuniga lillianpzuniga@gmail.com 5/25/2023 1:48:02 PM SENT
Ben Crowell ben@ck-firm.com 5/25/2023 1:48:02 PM SENT
Brennan Kucera brennan@ck—firm.com 5/25/2023 1:48:02 PM SENT

Associated Case Party: STATE FARM LORD

Name BarNumber Email TimestampSubmitted Status

Kelly M.Olson kelly.olson@faegredrinker.com 5/25/2023 1:48:02 PM SENT
Stephanie M.Stephens stephanie.stephens@faegredrinker.com 5/25/2023 1:48:02 PM SENT
Susan Egeland susan.egeland@faegredrinker.com 5/25/2023 1:48:02 PM SENT
Matthew CSapp Matt.Sapp@faegredrinker.com 5/25/2023 1:48:02 PM SENT
Danette Dykema Danette.dykema@faegredrinker.com 5/25/2023 1:48:02 PM SENT
Max Moran max.moran@faegredrinker.com 5/25/2023 1:48:02 PM SENT

Case Info

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HOFFMAN, MARTIN Track Judge’s New Case

Case No.

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Document Filed Date

May 25, 2023

Case Filing Date

January 31, 2023

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Answer: SUSAN KURUVILLA vs. STATE FARM LORD

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