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CAUSE NO. 23-04-05276
JOSEPH D. ABELL, IN THE DISTRICT COURT
Plaintiff,
MONTGOMERY COUNTY, TEXAS
KROGER TEXAS,L.P. D/B/A
KROGER STORE NO. K034
EAST/HOUSTON,
457 JUDICIAL DISTRICT
Defendants.
DEFENDANTREDDY ICE LLC’S ORIGINAL ANSWER
TO PLAINTIFFS’ FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Reddy Ice LLC (“Defendant”) and files this its Original
Answer to Plaintiff Joseph D. Abell’s First Amended PetitionIn support thereof, Defendant
respectfully states as follows:
GENERAL DENIAL
Defendant denies each and every, all and singular, the allegations contained in
Plaintiff’s First AmendedPetition and demand s strict proof thereof as authorized by TEXAS ULE
OF IVIL ROCEDURE 92.
AFFIRMATIVE DEFENSES
Defendant hereby asserts the following affirmative defenses and would show that
the damages and/or liabilities of which Plaintiff complains, if any exist, are the result, in whole or
in part, of the following:
DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER
PAGE 1
Comparative Responsibility.Defendant would show that the damages or liabilities
of which Plaintiff complain, if any exist, are the result, in whole or in part, of the
negligence of Plaintiff himself or other parties, over who Defendant exercises no
control, and whose acts and/or omission were the proximate, producing,
contributingand/or sole cause of Plaintiff damages, if any.
Unavoidable Accident. Answering further, Defendant would show that the injuries,
damages, or liabilities complained of by Plaintiff herein are the result of an
unavoidable accident.
New and Independent Cause:Answering further, Defendant would show that the
injuries, damages, or liabilities complained of by Plaintiff herein are the result of
new and independent cause.
NOTICES
Paid or Incurred Medical Expenses. Defendant would show that Plaintiff s medical
expenses should be limited to those actually paid or incurred by or on behalf of Plaintiff pursuant
to EXAS IVIL RACTICE EMEDIES ODE §41.0105 and Haygood v. De Escabedo, 356 S.W.3d
390 (Tex. 2011). Defendant further plead for the pre trial exclusion of all evidence of medical
expenses that have been adjusted and/or written off, and therefore, not paid and/or incurred as
contemplated by EXAS IVIL RACTICE EMEDIES ODE §41.0105 and Haygood v. De
Escabedo, 356 S.W.3d 390 (Tex. 2011).
Defendant would further show, that pursuant to §18.091 of the EXAS ULES OF
IVIL RACTICE AND EMEDIES ODE, to the extent that Plaintiff is seeking recovery of loss of
contribution of pecuniary value, evidence of this alleged loss must be presented by Plaintiff in the
form of a net loss after reduction for income tax payments, or unpaid tax liability to any federal
DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER
PAGE
income tax law. Defendant assert the protections contained in §18.091 of the EXAS IVIL
RACTICE AND EMEDIES ODE
IV.
CHAPTER 33: PROPORTIONATE RESPONSIBILITY
Pleading further, Defendant invoke the rights and privileges under Chapter 33 of
the EXAS IVIL RACTICE AND EMEDIES ODE including, but not limited to, the following
sections: 33.002 (Applicability); 33.003 (Determination of Percentage of Responsibility); 33.011
(Definitions); 33.012 (Amount of Recovery); 33.013 (Amount of Liability); 33.015
(Contribution); 33.016 (Claim against Contribution Defendant); and 33.017 (Preservation of
Existing Rates of Indemnity), if any.
INTEREST
Pleading affirmatively, and in the unlikely event of recovery, Defendant provide
notice of reliance on and invoke the limitations on interest (both pre and post judgment)
contained within Chapter 304 of the EXAS INANCE ODE. As set forth in the applicable statutes,
pre judgment interest on future damages may not be assessed or recovered. Defendant also
assert that pre judgment interest does not accrue until the earlier of one hundred eighty (180)
days after the date Defendant received notice of claim or the date the lawsuit was filed. Defendant
further provide notice of its reliance on Chapter 304 of the EXAS INANCE ODE for establishing
post judgment interest rates.
DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER
PAGE
VI.
NOTICE OF INTENT TO USE DOCUMENTS PRODUCED
PURSUANT TO T.R.C.P. 193.7
Defendant place Plaintiff on notice that pursuant to EXAS ULE OF IVIL
ROCEDURE 193.7, all documents produced by Plaintiff in this litigation are authenticated for use
against the producing party in this case and may be used as evidence during pre trial procedures
and at trial of this matter.
VII.
DISCOVERY CONTROL PLAN
Discovery in this lawsuit should be conducted under Level 3 of Rule 190 of the
EXAS ULES OF IVI ROCEDURE
VIII
REQUEST FOR DEPOSITION
Defendant hereby request the deposition of Plaintiff and place Plaintiff on notice
that Defendan witnesses will be presented thereafter. Plaintiff requested to provide proposed
dates for hisdeposition on or before September 29
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Reddy Ice LLC pray that
Plaintiff take nothing by this suit and that Defendant go hence without delay and recover all costs
expended on behalf Praying further, Defendant pray for such other and further relief, either
at law or in equity, to which Defendant may be justly entitled
DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER
PAGE
Respectfully submitted,
MAYER LLP
By:/s/ Lindsay G. Gorbach
Lindsay G. Gorbach
Texas Bar No. 24059839
Gregory R. Brenner
Texas BarNo.
Preston K. Osborn
Texas Bar No. 24101135
750 North Saint Paul Street, Suite 700
Dallas, Texas 75201
(telephone)
(214) 379 facsimile
lgorbach@mayerllp.com
gbrenner@mayerllp.com
posborn@mayerllp.com
ATTORNEYS FOR DEFENDANT
REDDY ICE LLC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served on the following counsel of record via electronic transmission onJune 2, 2023.
Dustin Causey
815 W. Davis Street, Suite 300
Conroe, Texas 77301
hcdocket@hope causey.com
Brock C. Akers
Robert Riddle
The Akers Firm
3401 Allen Parkway, Suite 101
Houston, Texas 77019
bca@akersfirm.com
robert@akersfirm.com
/s/ Lindsay G. Gorbach
Lindsay G. Gorbach
DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER
PAGE
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CAUSE NO. 23-04-05276 JOSEPH D. ABELL, IN THE DISTRICT COURT Plaintiff, MONTGOMERY COUNTY, TEXAS KROGER TEXAS,L.P. D/B/A KROGER STORE NO. K034 EAST/HOUSTON, 457 JUDICIAL DISTRICT Defendants. DEFENDANTREDDY ICE LLC’S ORIGINAL ANSWER TO PLAINTIFFS’ FIRST AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Reddy Ice LLC (“Defendant”) and files this its Original Answer to Plaintiff Joseph D. Abell’s First Amended PetitionIn support thereof, Defendant respectfully states as follows: GENERAL DENIAL Defendant denies each and every, all and singular, the allegations contained in Plaintiff’s First AmendedPetition and demand s strict proof thereof as authorized by TEXAS ULE OF IVIL ROCEDURE 92. AFFIRMATIVE DEFENSES Defendant hereby asserts the following affirmative defenses and would show that the damages and/or liabilities of which Plaintiff complains, if any exist, are the result, in whole or in part, of the following: DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER PAGE 1 Comparative Responsibility.Defendant would show that the damages or liabilities of which Plaintiff complain, if any exist, are the result, in whole or in part, of the negligence of Plaintiff himself or other parties, over who Defendant exercises no control, and whose acts and/or omission were the proximate, producing, contributingand/or sole cause of Plaintiff damages, if any. Unavoidable Accident. Answering further, Defendant would show that the injuries, damages, or liabilities complained of by Plaintiff herein are the result of an unavoidable accident. New and Independent Cause:Answering further, Defendant would show that the injuries, damages, or liabilities complained of by Plaintiff herein are the result of new and independent cause. NOTICES Paid or Incurred Medical Expenses. Defendant would show that Plaintiff s medical expenses should be limited to those actually paid or incurred by or on behalf of Plaintiff pursuant to EXAS IVIL RACTICE EMEDIES ODE §41.0105 and Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). Defendant further plead for the pre trial exclusion of all evidence of medical expenses that have been adjusted and/or written off, and therefore, not paid and/or incurred as contemplated by EXAS IVIL RACTICE EMEDIES ODE §41.0105 and Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). Defendant would further show, that pursuant to §18.091 of the EXAS ULES OF IVIL RACTICE AND EMEDIES ODE, to the extent that Plaintiff is seeking recovery of loss of contribution of pecuniary value, evidence of this alleged loss must be presented by Plaintiff in the form of a net loss after reduction for income tax payments, or unpaid tax liability to any federal DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER PAGE income tax law. Defendant assert the protections contained in §18.091 of the EXAS IVIL RACTICE AND EMEDIES ODE IV. CHAPTER 33: PROPORTIONATE RESPONSIBILITY Pleading further, Defendant invoke the rights and privileges under Chapter 33 of the EXAS IVIL RACTICE AND EMEDIES ODE including, but not limited to, the following sections: 33.002 (Applicability); 33.003 (Determination of Percentage of Responsibility); 33.011 (Definitions); 33.012 (Amount of Recovery); 33.013 (Amount of Liability); 33.015 (Contribution); 33.016 (Claim against Contribution Defendant); and 33.017 (Preservation of Existing Rates of Indemnity), if any. INTEREST Pleading affirmatively, and in the unlikely event of recovery, Defendant provide notice of reliance on and invoke the limitations on interest (both pre and post judgment) contained within Chapter 304 of the EXAS INANCE ODE. As set forth in the applicable statutes, pre judgment interest on future damages may not be assessed or recovered. Defendant also assert that pre judgment interest does not accrue until the earlier of one hundred eighty (180) days after the date Defendant received notice of claim or the date the lawsuit was filed. Defendant further provide notice of its reliance on Chapter 304 of the EXAS INANCE ODE for establishing post judgment interest rates. DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER PAGE VI. NOTICE OF INTENT TO USE DOCUMENTS PRODUCED PURSUANT TO T.R.C.P. 193.7 Defendant place Plaintiff on notice that pursuant to EXAS ULE OF IVIL ROCEDURE 193.7, all documents produced by Plaintiff in this litigation are authenticated for use against the producing party in this case and may be used as evidence during pre trial procedures and at trial of this matter. VII. DISCOVERY CONTROL PLAN Discovery in this lawsuit should be conducted under Level 3 of Rule 190 of the EXAS ULES OF IVI ROCEDURE VIII REQUEST FOR DEPOSITION Defendant hereby request the deposition of Plaintiff and place Plaintiff on notice that Defendan witnesses will be presented thereafter. Plaintiff requested to provide proposed dates for hisdeposition on or before September 29 PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Reddy Ice LLC pray that Plaintiff take nothing by this suit and that Defendant go hence without delay and recover all costs expended on behalf Praying further, Defendant pray for such other and further relief, either at law or in equity, to which Defendant may be justly entitled DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER PAGE Respectfully submitted, MAYER LLP By:/s/ Lindsay G. Gorbach Lindsay G. Gorbach Texas Bar No. 24059839 Gregory R. Brenner Texas BarNo. Preston K. Osborn Texas Bar No. 24101135 750 North Saint Paul Street, Suite 700 Dallas, Texas 75201 (telephone) (214) 379 facsimile lgorbach@mayerllp.com gbrenner@mayerllp.com posborn@mayerllp.com ATTORNEYS FOR DEFENDANT REDDY ICE LLC CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served on the following counsel of record via electronic transmission onJune 2, 2023. Dustin Causey 815 W. Davis Street, Suite 300 Conroe, Texas 77301 hcdocket@hope causey.com Brock C. Akers Robert Riddle The Akers Firm 3401 Allen Parkway, Suite 101 Houston, Texas 77019 bca@akersfirm.com robert@akersfirm.com /s/ Lindsay G. Gorbach Lindsay G. Gorbach DEFENDANT REDDY ICE LLC’S ORIGINAL ANSWER PAGE