On July 11, 2019 a
Answer
was filed
involving a dispute between
Hoorman, James,
and
Dauda, Suraji,
Fedex Custom Critical, Inc.,
Fesi Dfw Truck Centers,
Fe-Si Dfw Truck Centers, Lp,
Muhungi, Frances Kamau,
Muhuti, Alex,
Ngugi, Paul,
Paramount Fleet Services, Llc,
for MOTOR VEHICLE ACCIDENT
in the District Court of Dallas County.
Preview
FILED
DALLAS COUNTY
7/19/2019 2:22 PM
FELICIA PITRE
DISTRICT CLERK
Martin Reyes
CAUSE NO. DC-19-09814
JAMES HOORMAN, § IN THE DISTRICT COURT
§
Plaintiff, §
§ 160TH JUDICIAL DISTRICT
v. §
§
PARAMOUNT FLEET SERVICES, LLC §
ALEX MUHUTI, PAUL NGUGI §
SURAJI DAUDA, FESI DFW TRUCK §
CENTERSAND FED EX CUSTOM §
CRITICAL INC. §
Defendant § DALLAS COUNTY, TEXAS
DEFENDANTS SURAJI DAUDA AND FED EX CUSTOM CRITICAL, INC.’S
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants Suraji Duada and FedEx Custom Critical, Inc. (“Defendants”)
and files their Original Answer in response to Plaintiff James Hoorman’s (“Hoorman”) Petition
and shows the Court as follows:
I.
GENERAL DENIAL
1.0 Defendants Suraji Duada and FedEx Custom Critical, Inc. deny each and every, all and
singular, the allegations made in Plaintiff’s Petition and demands strict proof thereof by a
preponderance of the evidence.
II.
AFFIRMATIVE DEFENSES/INFERENTIAL REBUTTAL ISSUES
2.1 Defendants would show that, as alleged herein, Hoorman, Paramount Fleet Services,
LLC; Alex Huhuti, Paul Ngugi and Fe-Si DFW Truck Centers, LP (incorrectly named FESI
DFW Truck Centers) (all four collectively, the “Paramount” defendants) and other responsible
third parties’ negligence and/or negligence per se is a proximate cause of the accident and/or
DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 1
alleged harm, and such responsible third parties are responsible for a percentage of the harm for
which relief is sought in Plaintiff’s First Amended Petition. Accordingly, Plaintiff’s claims are
barred in whole or in part by the defense of proportionate responsibility pursuant to Chapter 33
of the Texas Civil Practice and Remedies Code.
2.2 Plaintiff was a proximate cause of the accident in question and his alleged damages
and/or injuries if any, and he is proportionately and/or comparatively responsible for the same
because he violated the following:
a. Violating TEX. TRANS. CODE ANN. §545.062 by failing to keep the proper
lookout;
b. Operating the vehicle at a greater rate of speed than the speed at which a
reasonably prudent person would have driven under the same or similar
circumstances in violation of local ordinances and TEX. TRANS. CODE ANN.
§545.351;
c. Failing to timely apply the brakes of the vehicle immediately prior to the
collision in question;
d. Failing to apply the brakes on the vehicle with sufficient force immediately
prior to the collision in question;
e. Violating TEX. TRANS. CODE ANN. §545.062 by failing to act and/or respond
in a reasonable manner;
f. Violating TEX. TRANS. CODE ANN. §545.062 by failing to control the speed of
the vehicle;
2.3 Defendants would show that the injuries/damages to Plaintiff were the result of
circumstances and events outside of and beyond the Defendants’ control.
DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 2
2.4 Defendants would show that their conduct was neither willful, intentional nor in direct
disregard for the rights of Plaintiff.
2.5 The accident at issue in this matter was caused by a new and independent cause, sole
proximate cause of another, was an unavoidable accident and/or act of God due to the inclement
and violent weather and/or was the result of a sudden emergency.
2.6 The accident at issue in this matter was proximately caused by acts of third parties over
whom Defendants had no control.
2.7 Plaintiff failed to mitigate his damages.
2.8 Under Texas law, drivers with the right-of-way continue to have a duty to exercise such
care as an ordinarily prudent person would exercise under the same or similar circumstances.
2.9 Under Texas law, motor vehicle drivers are required to drive lawfully to prompt another
driver’s duty to yield right-of-way.
2.10 Defendants invoke the limitations provided by Section 41.0105 of the Texas Civil
Practice and Remedies Code. Accordingly, Plaintiffs’ medical bills are limited to the amount
that the medical providers have a legal right to be paid. See Haygood v. De Escabedo, 356
S.W.3d 390 (Tex. 2010);
2.11 Defendants invoke the limitations provided by Section 18.091 of the Texas Civil Practice
and Remedies Code. Any lost wages, loss of earning capacity must be reduced to establish a net
loss after reduction for income tax payments or unpaid tax liability pursuant to federal income
taxes.
2.12 Some and/or all of Plaintiff’s alleged injuries are the result of preexisting conditions.
2.13 Some and/or all of Plaintiff’s alleged injuries are the result of superseding and/or
intervening causes.
DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 3
2.14 By way of further answer, in addition to the foregoing defenses, and without waiving the
same, Defendants reserve the right to plead additional affirmative defenses upon completion of
discovery.
III.
VERIFIED DENIAL
3.1 At the time of the motor vehicle accident made the basis of this lawsuit, Defendant Duada
was not driving either of the motor vehicles involved in the accident nor was he an employee of
FedEx Custom Critical. The truck tractor that was involved in a collision with Hoorman was
being driven by Alex Huhuti, an employee of one or more of the Paramount defendants at the
time of the accident. Plaintiff has improperly alleged that Defendant Duada was the driver of the
truck tractor and an employee of FedEx Custom Critical in his petition. As a result, Defendant
Duada is not a proper party to this lawsuit.
IV.
RULE 193.7 NOTICE
4.1 Defendants hereby notify Plaintiff, pursuant to Rule 193.7 of the Texas Rules of Civil
Procedure, that Defendants currently intend to use all items produced by said Plaintiff in this
litigation at any pretrial proceeding or trial.
V.
JURY TRIAL
5.1 Defendants previously demanded a trial by jury and the requisite fee has been tendered to
the District Clerk.
PRAYER
FOR THESE REASONS, Defendants Suraji Duada and FedEx Custom Critical, Inc.
respectfully pray that Plaintiff James Hoorman be denied the relief sought in his petition; that
Plaintiff take nothing against Defendants and that Judgment be entered and rendered for
DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 4
Defendants; that Defendant Suraji Duada and FedEx Custom Critical, Inc. recover all costs of
court and its reasonable attorney fees; that Defendants have such other and further relief, general
or special, legal or equitable, to which it is justly entitled.
Respectfully submitted,
REID & DENNIS, P.C.
/s/ Steve Dennis
______________________________
STEVE DENNIS
State Bar No. 00798143
sdennis@reiddennis.com
DENA G. CHOATE
State Bar No. 00796353
dchoate@reiddennis.com
Frisco Office:
2600 Dallas Parkway, Suite 380
Frisco, Texas 75034
Dallas Office:
3131 McKinney Avenue, Suite 600
Dallas, Texas 75204
T: 214 618-1400
F: 214 618-1653.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was forwarded to
Plaintiff’s counsel of record on this the 19th day of July 2019, in accordance with the Texas
Rules of Civil Procedure:
Daryoush Toofanian
RAD LAW FIRM
8001 LBJ Freeway, Suite 300
Dallas, Texas 75251
dtoofanian@radlawfirm.com
efileDT@radlawfirm.com
Counsel for Plaintiff /s/ Steve Dennis
_____________________________________
Steve Dennis
DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 5
Preview
FILED DALLAS COUNTY 7/19/2019 2:22 PM FELICIA PITRE DISTRICT CLERK Martin Reyes CAUSE NO. DC-19-09814 JAMES HOORMAN, § IN THE DISTRICT COURT § Plaintiff, § § 160TH JUDICIAL DISTRICT v. § § PARAMOUNT FLEET SERVICES, LLC § ALEX MUHUTI, PAUL NGUGI § SURAJI DAUDA, FESI DFW TRUCK § CENTERSAND FED EX CUSTOM § CRITICAL INC. § Defendant § DALLAS COUNTY, TEXAS DEFENDANTS SURAJI DAUDA AND FED EX CUSTOM CRITICAL, INC.’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants Suraji Duada and FedEx Custom Critical, Inc. (“Defendants”) and files their Original Answer in response to Plaintiff James Hoorman’s (“Hoorman”) Petition and shows the Court as follows: I. GENERAL DENIAL 1.0 Defendants Suraji Duada and FedEx Custom Critical, Inc. deny each and every, all and singular, the allegations made in Plaintiff’s Petition and demands strict proof thereof by a preponderance of the evidence. II. AFFIRMATIVE DEFENSES/INFERENTIAL REBUTTAL ISSUES 2.1 Defendants would show that, as alleged herein, Hoorman, Paramount Fleet Services, LLC; Alex Huhuti, Paul Ngugi and Fe-Si DFW Truck Centers, LP (incorrectly named FESI DFW Truck Centers) (all four collectively, the “Paramount” defendants) and other responsible third parties’ negligence and/or negligence per se is a proximate cause of the accident and/or DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 1 alleged harm, and such responsible third parties are responsible for a percentage of the harm for which relief is sought in Plaintiff’s First Amended Petition. Accordingly, Plaintiff’s claims are barred in whole or in part by the defense of proportionate responsibility pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code. 2.2 Plaintiff was a proximate cause of the accident in question and his alleged damages and/or injuries if any, and he is proportionately and/or comparatively responsible for the same because he violated the following: a. Violating TEX. TRANS. CODE ANN. §545.062 by failing to keep the proper lookout; b. Operating the vehicle at a greater rate of speed than the speed at which a reasonably prudent person would have driven under the same or similar circumstances in violation of local ordinances and TEX. TRANS. CODE ANN. §545.351; c. Failing to timely apply the brakes of the vehicle immediately prior to the collision in question; d. Failing to apply the brakes on the vehicle with sufficient force immediately prior to the collision in question; e. Violating TEX. TRANS. CODE ANN. §545.062 by failing to act and/or respond in a reasonable manner; f. Violating TEX. TRANS. CODE ANN. §545.062 by failing to control the speed of the vehicle; 2.3 Defendants would show that the injuries/damages to Plaintiff were the result of circumstances and events outside of and beyond the Defendants’ control. DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 2 2.4 Defendants would show that their conduct was neither willful, intentional nor in direct disregard for the rights of Plaintiff. 2.5 The accident at issue in this matter was caused by a new and independent cause, sole proximate cause of another, was an unavoidable accident and/or act of God due to the inclement and violent weather and/or was the result of a sudden emergency. 2.6 The accident at issue in this matter was proximately caused by acts of third parties over whom Defendants had no control. 2.7 Plaintiff failed to mitigate his damages. 2.8 Under Texas law, drivers with the right-of-way continue to have a duty to exercise such care as an ordinarily prudent person would exercise under the same or similar circumstances. 2.9 Under Texas law, motor vehicle drivers are required to drive lawfully to prompt another driver’s duty to yield right-of-way. 2.10 Defendants invoke the limitations provided by Section 41.0105 of the Texas Civil Practice and Remedies Code. Accordingly, Plaintiffs’ medical bills are limited to the amount that the medical providers have a legal right to be paid. See Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2010); 2.11 Defendants invoke the limitations provided by Section 18.091 of the Texas Civil Practice and Remedies Code. Any lost wages, loss of earning capacity must be reduced to establish a net loss after reduction for income tax payments or unpaid tax liability pursuant to federal income taxes. 2.12 Some and/or all of Plaintiff’s alleged injuries are the result of preexisting conditions. 2.13 Some and/or all of Plaintiff’s alleged injuries are the result of superseding and/or intervening causes. DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 3 2.14 By way of further answer, in addition to the foregoing defenses, and without waiving the same, Defendants reserve the right to plead additional affirmative defenses upon completion of discovery. III. VERIFIED DENIAL 3.1 At the time of the motor vehicle accident made the basis of this lawsuit, Defendant Duada was not driving either of the motor vehicles involved in the accident nor was he an employee of FedEx Custom Critical. The truck tractor that was involved in a collision with Hoorman was being driven by Alex Huhuti, an employee of one or more of the Paramount defendants at the time of the accident. Plaintiff has improperly alleged that Defendant Duada was the driver of the truck tractor and an employee of FedEx Custom Critical in his petition. As a result, Defendant Duada is not a proper party to this lawsuit. IV. RULE 193.7 NOTICE 4.1 Defendants hereby notify Plaintiff, pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, that Defendants currently intend to use all items produced by said Plaintiff in this litigation at any pretrial proceeding or trial. V. JURY TRIAL 5.1 Defendants previously demanded a trial by jury and the requisite fee has been tendered to the District Clerk. PRAYER FOR THESE REASONS, Defendants Suraji Duada and FedEx Custom Critical, Inc. respectfully pray that Plaintiff James Hoorman be denied the relief sought in his petition; that Plaintiff take nothing against Defendants and that Judgment be entered and rendered for DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 4 Defendants; that Defendant Suraji Duada and FedEx Custom Critical, Inc. recover all costs of court and its reasonable attorney fees; that Defendants have such other and further relief, general or special, legal or equitable, to which it is justly entitled. Respectfully submitted, REID & DENNIS, P.C. /s/ Steve Dennis ______________________________ STEVE DENNIS State Bar No. 00798143 sdennis@reiddennis.com DENA G. CHOATE State Bar No. 00796353 dchoate@reiddennis.com Frisco Office: 2600 Dallas Parkway, Suite 380 Frisco, Texas 75034 Dallas Office: 3131 McKinney Avenue, Suite 600 Dallas, Texas 75204 T: 214 618-1400 F: 214 618-1653. CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument was forwarded to Plaintiff’s counsel of record on this the 19th day of July 2019, in accordance with the Texas Rules of Civil Procedure: Daryoush Toofanian RAD LAW FIRM 8001 LBJ Freeway, Suite 300 Dallas, Texas 75251 dtoofanian@radlawfirm.com efileDT@radlawfirm.com Counsel for Plaintiff /s/ Steve Dennis _____________________________________ Steve Dennis DEFENDANTS DUADA AND FED EX CUSTOM CRITICAL, INC. ORIGINAL ANSWER PAGE 5