Preview
FILED
6/8/2020 12:25 PM
1 CIT/ ESERVE FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
CO.,
Lafonda Sims DEPUTY
DARYOUSH TOOFANIAN, ESQ.
BAR No.
N0. 24039801
RAD LAW FIRM
8001 LBJ FWY, SUITE 300
DALLAS, TEXAS 75251
PH: 972-661-1111
FAX: 972-661-3537
CAUSE NO.
N0. DC-19-09814
JAMES HOORMAN, IN THE DISTRICT COURT
PLAINTIFF,
V.
PARAMOUNT FLEET SERVICES, LLC, WWWWWWWWWWW
wwwwwwmmwww
_160TH_JUDIC1AL DISTRICT
_160TH_JUDICLAL
ALEX MUHUTI, PAUL NGUGI,
SURAJI DAUDA, FE-SI DFW TRUCK
CENTERS, LP, FED EX CUSTOM
CRITICAL, INC., AND FRANCES KAMAU
MUHUNGI AKA “ALEX MUHUTI”
CONSUMER COUNTY MUTUAL INSURANCE §
COMPANY §
DEFENDANTS. § DALLAS COUNTY, TEXAS
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES JAMES HOORMAN complaining 0f and
of against Defendants
PARAMOUNT FLEET SERVICES, LLC, ALEX MUHUTI, PAUL NGUGI, SURAJI
DAUDA, FE-SI DFW TRUCK CENTERS, LP, FED EX CUSTOM CRITICAL, INC.,
FRANCES KAMAU MUHUNGI AKA “ALEX MUHUTI” AND CONSUMER COUNTY
MUTUAL INSURANCE COMPANY and for cause of respectfillly show the
0f action would respectfully
Court the following:
I. DISCOVERY CONTROL PLAN LEVEL and EXPEDITED ACTIONS STATEMENT
1.01 to Texas Rules 0f Civil Procedure Rule 190.3, Plaintiffs request that
Pursuant t0
discovery be conducted in accordance With Discovery Control Plan-Level 2.
1.02 Plaintiffs seek damages in excess of
0f one million dollars.
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 1
l 0f 13
II. JURISDICTION AND VENUE
2.01 This Court has jurisdiction and venue over the parties and subject matter of these
claims because the amount in controversy is within the jurisdictional limits of this Court, and the
events giving rise to this lawsuit occurred in Dallas County.
III. PARTIES AND SERVICE
3.01 Plaintiff is an individual residing in Dallas County, Texas.
3.02 Defendant, PARAMOUNT FLEET SERVICES, LLC, is a Texas entity Who may
be served With citation through its registered agent PAUL NGUGI AT 5341 LOS ALTOS, FT.
WORTH, TEXAS 76244.
3.03 Defendant, ALEX MUHUTI, is an individual Who may be served with citation at
his residence, at 5341 LOS ALTOS, FT. WORTH, TEXAS 76244.
3.04 Defendant, PAUL NGUGI, is an individual who may be served with citation at his
residence, at 5341 LOS ALTOS, FT. WORTH, TEXAS 76244.
3.05 Defendant, SURAJI DAUDA, is an individual Who may be served with citation at
his residence, AT 800 UNIVERSITY STREET, MARTIN, TENNESSEE 38237-1636.
3.06 Defendant, FEDEX CUSTOM CRITICAL, INC., is a Tennessee entity Who may
be served by serving its registered agent, CT CORPORATION SYSTEM at 1999 BRYAN
STREET, SUITE 900, DALLAS, TEXAS 75201.
3.07 Defendant, FE-SI DFW TRUCK CENTERS, LP, may be served with citation
through its registered agent, R. HOLT LUNSFORD at 5950 BERKSHIRE LANE, SUITE 900,
DALLAS, TEXAS 75225.
3.08 Defendant, FRANCES KAMAU MUHUNGI Aka “ALEX MUHUTI” can be
served With citation at 11330 AMANDA LANE, APT, 924, DALLAS, TX 75238.
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 2 0f 13
3.09 Defendant Consumers County Mutual Insurance Company is a county mutual
authorized by the State ofTexas to conduct business and may be served With process by serving its
company officer JON HOWELLS, 4245 NORTH CENTRAL EXPRESSWAY, SUITE 500,
DALLAS, TEXAS
4.01 The
75205.
IV.
incident complained ofherein occurred
w
PLEASE ISSUE CITATION FOR THIS DEFENDANT.
on August 18, 2017 in Dallas County,
Texas. On that fatefiJI day, Muhuti, while in the course and scope of his employment With Ngugi
and Paramount slammed into Plaintiff s vehicle in a parking lot, causing him injuries and other
damages. Paramount was owned by Ngugi at all times relevant t0 this case.
4.02 ALTERNATIVELY, the vehicle was driven by Duada Who was in the course and
scope ofhis employment with Fed EX.
4.03 It appears that the liable party 0r parties did not carry insurance at the time 0f the
incident.
4.04 Consumer County Mutual insures Plaintiff against uninsured losses as described
in this petition. Since being presented with the claim, and all necessary proofs, Consumer County
has been effectively silent, and has not ever meaningfully addressed this claim as is required by
law.
V. LIABILITY
5.01 The employer Defendants are grossly and ordinarily negligent for the following
reasons:
a. They were negligent in its hiring and retention policies as it hired and retained an
unreasonably dangerous individual;
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 3 0f 13
b. Each driver’s negligence is imputed on its employer by the acts and omissions of
its employee through its agency relationship With him, and the doctrine 0f respondeat superior.
5.02 Each driver is grossly and ordinarily negligent for the following reasons:
a. He failed to keep a proper lookout for the Plaintiff’s safety that would have been
maintained by a person of ordinary prudence under the same or similar circumstances;
b. He failed to timely apply his brakes;
c. He failed to take proper evasive action that would have been taken by a person 0f
ordinary prudence under the same 0r similar circumstances;
d. He failed t0 remain reasonably attentive to the traffic and other conditions existing
0n the roadway as a reasonably prudent person would have been under the same 0r similar
circumstances;
e. He failed to pay requisite attention as a reasonably prudent driver would;
f. He failed to control his speed and yield right of way; and
g. He ignored and breached applicable laws and regulations regarding the
operation 0f his vehicle and thereby caused the collision.
5.03 The acts and omissions complained 0f proximately caused the Plaintiffs’ injuries.
VI. CLAIMS AGAINST CONSUMER COUNTY MUTUAL
6.01 Prior to and at the time of such collision, Plaintiff was protected against losses
relating t0 bodily injuries resulting fiom the use, operation, maintenance, and/or ownership 0f an
uninsured and/or under insured motor vehicle by a policy 0f insurance issued and/or sold by
Consumers County Mutual.
6.02 Plaintiff made claims against his insurance policy with Consumer County. In turn,
Consumer County perform a proper investigation 0fthe Plaintiff s claim, failed t0 effect a prompt,
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 4 0f 13
fair and equitable settlement of the claim in which liability had become reasonably clear, refused to
pay or authorize payment or recommend payment of Plaintiff’s claims prior to conducting a
reasonable investigation based on all available information, and failed to commission a reasonable,
unbiased and independent medical evaluation of the Plaintiff’s injuries arising from the crash giving
rise to this litigation.
Count 1: Breach of Contract
6.02 Although Plaintiff fully cooperated with Consumers County Mutual, and despite the
fact that all conditions precedent to recovery have occurred, Consumers County Mutual has failed and
refused to pay to Plaintiff the benefits due under the contracts of insurance in question, which was
in full force and effect at the time of the occurrence which forms the basis of this lawsuit.
6.03 The conduct of Consumers County Mutual constitutes a breach of contract in the
following particulars:
a. By failing and/or refusing to pay Plaintiff’s claim promptly;
b. By failing and/or refusing to evaluate Plaintiff’s claim fairly; and
c. By breaching the duty of good faith and fair dealing.
6.04 Each of these acts constitute a prima facie showing of Consumers County Mutual’s
breach of contract entitling Plaintiff to sue in an amount in excess of the minimum jurisdictional
limits of this Court. All conditions precedents have been performed or have occurred.
6.05 Plaintiff is entitled to recover reasonable attorney's fees because this is a claim on
a written contract within the meaning of Texas Civil Practice and Remedies Code Section 38.001.
Count 2: Breach of Duty of Good Faith/ Fair Dealing
6.06 Consumers County Mutual breached its duty of good faith and fair dealing by failing
to offer a reasonable settlement for Plaintiff’s claim for first party benefit from the date of being
presented due proofs and and the date of Plaintiff’s live petition. Consumers County Mutual owed
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 5 of 13
the duty of good faith and fair dealing to Plaintiff and Plaintiff is entitled to recover damages
proximately caused by Consumers County Mutual’s breach of their duty of good faith and fair
dealing.
6.07 The failure to settle Plaintiff’s uninsured motorist claims on or between receiving
due proofs and the date of this petition violates TEXAS INSURANCE CODE § 541.060, § 541.151,
and §542.03 regarding unfair competition, unfair practices, and the prompt payment of claims.
Additionally, by virtue of the foregoing, Consumers County Mutual has violated TEXAS BUSINESS &
COMMERCE CODE § 17.46 (hereinafter referred to as the “DTPA”). Specifically, LIC violated TEXAS
DECEPTIVE TRADE PRACTICES ACT § 17.46(B)(5, 7, 12, and 24). Therefore, Plaintiff are entitled to
treble damages pursuant to TEXAS DECEPTIVE TRADE PRACTICES ACT § 17.50(A)(4).
6.08 Plaintiff has complied with the mandate that a DTPA demand letter be sent to
Consumers County Mutual. A notice of claim and demand for payment was mailed by Plaintiff to
Consumers County Mutual on or about April 2, 2015. To date, Consumers County Mutual has
not made an attempt to correspond and communicate their position as to whether they will accept
or reject Plaintiff’s UIM claim.
6.09 Plaintiff hired the undersigned law firm to provide legal assistance in prosecuting
this action. Pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE § 38.001 and TEXAS BUSINESS
& COMMERCE CODE §17.50(D), Plaintiff are entitled to recover reasonable attorney’s fees to
prosecute this action and in prosecuting any appeals from the judgment in this cause.
Count 3: Negligence and Negligent Misrepresentation
6.10 Consumers County Mutual, its agents, servants, officers, and employees, were
negligent in the following acts or omissions:
a. Failing to properly acknowledge Plaintiff’s claims;
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 6 of 13
b. Failing to reasonably investigate Plaintiff’s claims;
c. Failing to reasonably evaluate Plaintiff’s claims;
d. Failing to promptly compensate Plaintiff; and
e. Failing to make a reasonable settlement offer of Plaintiff’s claims.
6.11 Consumers County Mutual and its agents, servants, officers, and employees owed
Plaintiff the duty of reasonable care in acknowledging, investigating, processing, and financially
satisfying Plaintiff’s claims under the subject uninsured motorist insurance policy.
6.12 Consumers County Mutual violated its duties and was negligent in the particulars
set forth above.
6.13 Consumers County Mutual knew or should have known that Plaintiff would rely
upon Consumers County Mutual’s acts, omissions, and misrepresentations. Plaintiff did, in fact,
reasonably rely on Consumers County Mutual’s acts, omissions, and misrepresentations when
purchasing said insurance policy and presenting a claim under said insurance policy. Consumers
County Mutual knew and had reason to know that its acts, omissions, and misrepresentations would
cause financial hardship, additional stress, and anxiety to Plaintiff. Through solicitation, Consumers
County Mutual made statements and representations about the quality of service and product
Consumers County Mutual provided. Said representations were relied upon and insurance based on
was purchased as a result. In addition, Plaintiff presented claims to Consumers County Mutual based
on its statements and representations regarding the quality of Consumers County Mutual’s product
and service. Upon the presentment of Plaintiff’s claims, Consumers County Mutual failed to produce
the quality of service and product advertised, causing Plaintiff to be injured. Each of the above-
mentioned acts, omissions, and misrepresentations was a proximate cause of the damages suffered by
Plaintiff.
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 7 of 13
Count 4: Texas Insurance Code §541, 542
6.14 The Texas Legislature enacted Chapter 541 of the Texas Insurance Code to
regulate trade practices in the business of insurance by: (1) defining or providing for the
determination of trade practices in this state that are unfair methods of competition or unfair or
deceptive acts or practices; and (2) prohibiting those trade practices. Further, the legislature made
it clear that this Act "shall be liberally construed and applied to promote its underlying purposes as
set forth in this section." Tex. Ins. Code. §541.008.
6.15 Plaintiff would show that Defendants violated Chapter 541 of the Texas Insurance
Code by engaging in an unfair and deceptive course of conduct which precluded Plaintiff from
receiving a recovery for his uninsured motorist claim herein in a timely manner. Specifically,
Plaintiff asserts that Consumers County Mutual failed to provide Plaintiff with insurance coverage
as required by the terms of the Policies.
6.16 Plaintiff further would show that Plaintiff made written demand to Consumers
County Mutual for the purpose of seeking settlement of these matters pursuant to Chapter 541 of
the Texas Insurance Code. Despite numerous attempts to settle his claim, Plaintiff’s underinsured
motorist claim remains unresolved.
6.17 Plaintiff further would show that Consumers County Mutual failed to attempt in good
faith to effectuate a prompt, fair, and equitable settlement of Plaintiff’s claim in violation of
Section 541.060(2).
6.18 Plaintiff further would show that Consumers County Mutual failed to promptly give
Plaintiff a reasonable explanation, based on the policy as it relates to the facts or applicable law, for
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 8 of 13
the LIC’s offer of a compromised settlement on Plaintiff’s claim in violation of Section
541.060(3).
6.19 Plaintiff further would show that Consumers County Mutual refused to pay
Plaintiff’s claim without conducting a reasonable inspection in violation of Section 541.060(6).
6.20 Plaintiff further would show that Consumers County Mutual failed to disclose the
limits of the insuring agreement and provide a copy of the policy required by law to be disclosed in
violation of Section 541.061(5) and Section 1952.055(c).
6.21 Plaintiff further would show the above described actions of Consumers County
Mutual were committed knowingly, thus entitling Plaintiff to treble damages as provided in the
Texas Insurance Code.
6.22 In addition, the Texas Legislature enacted Chapter 542 of the Texas Insurance
Code also known as the Unfair Claim Settlement Practices Act to prohibit insurance companies
and their representatives from engaging in Unfair Claim Settlement Practices. The Act mandates
that "No insurer doing business in this state under the authority, rules and regulations of this code
shall engage in unfair claim settlement practices."
6.23 Plaintiff further would show that Consumers County Mutual did not attempt in good
faith to effect a prompt, fair, and equitable settlement of a claim submitted in which liability has
become reasonably clear in violation of Section 542.003(b)(4).
6.24 Moreover, the Texas Legislature also enacted Chapter 542 of the Texas Insurance
Code also known as the Prompt Payment of Claims Act. This Act imposes specific deadlines for
claims handling procedures to ensure the prompt payment of claims. The legislature expressly
stated that this Act "shall be liberally construed to promote its underlying purpose which is to
obtain prompt payment of claims made pursuant to policies of insurance."
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 9 of 13
6.25 Plaintiff would show that Consumers County Mutual failed to timely acknowledge
receipt of Plaintiff’s claim and commence an investigation of the claim in violation of Section
542.055(a). Plaintiff further would show that LIC did not notify Plaintiff in writing of the acceptance
or rejection of a claim not later than the fifteenth business day after the date Consumers County
Mutual receives all items, statements, and forms required in violation of Section 542.056(a).
6.26 Plaintiff further would show that, if Consumers County Mutual was unable to accept
or reject the claim within the fifteen day time period, Consumers County Mutual did not notify
Plaintiff of the reasons that Consumers County Mutual needed additional time in violation of
Section 542.056(d).
6.27 Plaintiff further would show that Consumers County Mutual’s delayed payment of
Plaintiff’s claim in violation of Section 542.058. If an insurer is not in compliance with Chapter
542, which Consumers County Mutual is not, the insurer is liable to Plaintiff, in addition to the
amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages,
together with reasonable attorney's fee, to be taxed as costs. Tex. Ins. Code. §542.060.
Count 5: Violation of DTPA and Insurance Code
6.28 Consumer County Mutual is guilty of violations of the Texas Deceptive Trade
Practices and Consumer Protection Act and the Texas Insurance Code. Consumers County Mutual
and its agents, employees, and representatives, have knowingly and intentionally engaged in false,
misleading, or deceptive acts or practices including, but not limited to, representing that goods or
services have characteristics or benefits which they do not have; and representing that an
agreement confers or involves rights, remedies, or obligations which it does not have or involve
or which are prohibited by law.
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 10 of 13
6.29 Such Violations 0f the Texas DTPA and Texas Insurance Code were committed
knowingly, and as such, the Plaintiff is entitled to recover statutory "additional" damages.
Declaratory Relief
6.30 A11 allegations herein are incorporated by reference. Pleading further, Plaintiff
brings this action against LIC for declaratory relief under the Uniform Declaratory Judgments Act,
TEX. CIV. PRAC. & REM. CODE §§ 37.001 et seq. (“UDJA”). Plaintiff requests that this Court
establish by declaratory judgment:
a. that Plaintiff is covered under the policy;
b. that Plaintiff is entitled to uninsured motorist coverage under the policy;
c. that Plaintiff was proximately caused damages by the negligence and/ or gross
negligence 0f an unisured driver
6.40 Pursuant to UDJA section 37.008, Plaintiff filrther prays for recovery of costs and
reasonable and necessary attorney fees as are equitable and just.
VII. DAMAGES
7.01 As a direct and proximate result 0f the occurrence made the basis 0f this lawsuit,
Plaintiffs were caused t0 suffer severe bodily injuries and damages as set out below.
a. Reasonable expenses for necessary medical care in the past and filture;
b. Lost wages and/or lost earning capacity, past and future;
c. Pain and suffering in the past and future;
d. Physical impairment in the past and future;
e. Disfigurement, past and filture;
f. Property Damage;
g. Loss oste; and
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 11 0f 13
h. Defendants’ conduct When Viewed objectively, involved an extreme degree ofrisk,
considering the probability and magnitude 0f the potential harm t0 others, and 0f Which each
Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with
conscious indifference to the rights, safety and welfare of others, specifically including Plaintiff,
as such, Plaintiff additionally seek exemplary damages as allowed by Chapter 41 0f the Texas
Civil Practice & Remedies Code.
IIX. REQUEST FOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is requested t0
disclose, within fifty (50) days of service of this request, the information 0r material described in
Rule 194.2 (a—l).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfillly prays that the
Defendants be cited t0 appear and answer herein, and that upon final hearing 0f the cause,
judgment be entered for the Plaintiff against the Defendants, jointly and severally, for damages
in an amount within the jurisdictional limits of the Court, together with pre-judgment and post-
judgment interest at the maximum rate allowed by law, costs of court, and such other and further
relief to Which Plaintiff may show himselfjustly entitled.
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 12 0f 13
Respectfillly submitted,
RAD LAW FIRM
BY:_/s/ Daryoush Toofanian
DARYOUSH TOOFANIAN
State Bar No. 24039801
8001 LBJ Freeway, Suite 300
Dallas, Texas 75251
Main Phone (972) 661—1 1 11
Direct Fax (972) 354—5655
E-service: efileDTQDradlawfirmcom
dtoofanian@radlawfirm.com (communications only)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
A copy ofthe foregoing was delivered to all counsel ofrecord by e-service 0n June 8, 2020.
_/s/ Daryoush Toofanian
DARYOUSH TOOFANIAN
PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 13 of 13
Preview
FILED 6/8/2020 12:25 PM 1 CIT/ ESERVE FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS CO., Lafonda Sims DEPUTY DARYOUSH TOOFANIAN, ESQ. BAR No. N0. 24039801 RAD LAW FIRM 8001 LBJ FWY, SUITE 300 DALLAS, TEXAS 75251 PH: 972-661-1111 FAX: 972-661-3537 CAUSE NO. N0. DC-19-09814 JAMES HOORMAN, IN THE DISTRICT COURT PLAINTIFF, V. PARAMOUNT FLEET SERVICES, LLC, WWWWWWWWWWW wwwwwwmmwww _160TH_JUDIC1AL DISTRICT _160TH_JUDICLAL ALEX MUHUTI, PAUL NGUGI, SURAJI DAUDA, FE-SI DFW TRUCK CENTERS, LP, FED EX CUSTOM CRITICAL, INC., AND FRANCES KAMAU MUHUNGI AKA “ALEX MUHUTI” CONSUMER COUNTY MUTUAL INSURANCE § COMPANY § DEFENDANTS. § DALLAS COUNTY, TEXAS PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES JAMES HOORMAN complaining 0f and of against Defendants PARAMOUNT FLEET SERVICES, LLC, ALEX MUHUTI, PAUL NGUGI, SURAJI DAUDA, FE-SI DFW TRUCK CENTERS, LP, FED EX CUSTOM CRITICAL, INC., FRANCES KAMAU MUHUNGI AKA “ALEX MUHUTI” AND CONSUMER COUNTY MUTUAL INSURANCE COMPANY and for cause of respectfillly show the 0f action would respectfully Court the following: I. DISCOVERY CONTROL PLAN LEVEL and EXPEDITED ACTIONS STATEMENT 1.01 to Texas Rules 0f Civil Procedure Rule 190.3, Plaintiffs request that Pursuant t0 discovery be conducted in accordance With Discovery Control Plan-Level 2. 1.02 Plaintiffs seek damages in excess of 0f one million dollars. PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 1 l 0f 13 II. JURISDICTION AND VENUE 2.01 This Court has jurisdiction and venue over the parties and subject matter of these claims because the amount in controversy is within the jurisdictional limits of this Court, and the events giving rise to this lawsuit occurred in Dallas County. III. PARTIES AND SERVICE 3.01 Plaintiff is an individual residing in Dallas County, Texas. 3.02 Defendant, PARAMOUNT FLEET SERVICES, LLC, is a Texas entity Who may be served With citation through its registered agent PAUL NGUGI AT 5341 LOS ALTOS, FT. WORTH, TEXAS 76244. 3.03 Defendant, ALEX MUHUTI, is an individual Who may be served with citation at his residence, at 5341 LOS ALTOS, FT. WORTH, TEXAS 76244. 3.04 Defendant, PAUL NGUGI, is an individual who may be served with citation at his residence, at 5341 LOS ALTOS, FT. WORTH, TEXAS 76244. 3.05 Defendant, SURAJI DAUDA, is an individual Who may be served with citation at his residence, AT 800 UNIVERSITY STREET, MARTIN, TENNESSEE 38237-1636. 3.06 Defendant, FEDEX CUSTOM CRITICAL, INC., is a Tennessee entity Who may be served by serving its registered agent, CT CORPORATION SYSTEM at 1999 BRYAN STREET, SUITE 900, DALLAS, TEXAS 75201. 3.07 Defendant, FE-SI DFW TRUCK CENTERS, LP, may be served with citation through its registered agent, R. HOLT LUNSFORD at 5950 BERKSHIRE LANE, SUITE 900, DALLAS, TEXAS 75225. 3.08 Defendant, FRANCES KAMAU MUHUNGI Aka “ALEX MUHUTI” can be served With citation at 11330 AMANDA LANE, APT, 924, DALLAS, TX 75238. PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 2 0f 13 3.09 Defendant Consumers County Mutual Insurance Company is a county mutual authorized by the State ofTexas to conduct business and may be served With process by serving its company officer JON HOWELLS, 4245 NORTH CENTRAL EXPRESSWAY, SUITE 500, DALLAS, TEXAS 4.01 The 75205. IV. incident complained ofherein occurred w PLEASE ISSUE CITATION FOR THIS DEFENDANT. on August 18, 2017 in Dallas County, Texas. On that fatefiJI day, Muhuti, while in the course and scope of his employment With Ngugi and Paramount slammed into Plaintiff s vehicle in a parking lot, causing him injuries and other damages. Paramount was owned by Ngugi at all times relevant t0 this case. 4.02 ALTERNATIVELY, the vehicle was driven by Duada Who was in the course and scope ofhis employment with Fed EX. 4.03 It appears that the liable party 0r parties did not carry insurance at the time 0f the incident. 4.04 Consumer County Mutual insures Plaintiff against uninsured losses as described in this petition. Since being presented with the claim, and all necessary proofs, Consumer County has been effectively silent, and has not ever meaningfully addressed this claim as is required by law. V. LIABILITY 5.01 The employer Defendants are grossly and ordinarily negligent for the following reasons: a. They were negligent in its hiring and retention policies as it hired and retained an unreasonably dangerous individual; PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 3 0f 13 b. Each driver’s negligence is imputed on its employer by the acts and omissions of its employee through its agency relationship With him, and the doctrine 0f respondeat superior. 5.02 Each driver is grossly and ordinarily negligent for the following reasons: a. He failed to keep a proper lookout for the Plaintiff’s safety that would have been maintained by a person of ordinary prudence under the same or similar circumstances; b. He failed to timely apply his brakes; c. He failed to take proper evasive action that would have been taken by a person 0f ordinary prudence under the same 0r similar circumstances; d. He failed t0 remain reasonably attentive to the traffic and other conditions existing 0n the roadway as a reasonably prudent person would have been under the same 0r similar circumstances; e. He failed to pay requisite attention as a reasonably prudent driver would; f. He failed to control his speed and yield right of way; and g. He ignored and breached applicable laws and regulations regarding the operation 0f his vehicle and thereby caused the collision. 5.03 The acts and omissions complained 0f proximately caused the Plaintiffs’ injuries. VI. CLAIMS AGAINST CONSUMER COUNTY MUTUAL 6.01 Prior to and at the time of such collision, Plaintiff was protected against losses relating t0 bodily injuries resulting fiom the use, operation, maintenance, and/or ownership 0f an uninsured and/or under insured motor vehicle by a policy 0f insurance issued and/or sold by Consumers County Mutual. 6.02 Plaintiff made claims against his insurance policy with Consumer County. In turn, Consumer County perform a proper investigation 0fthe Plaintiff s claim, failed t0 effect a prompt, PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 4 0f 13 fair and equitable settlement of the claim in which liability had become reasonably clear, refused to pay or authorize payment or recommend payment of Plaintiff’s claims prior to conducting a reasonable investigation based on all available information, and failed to commission a reasonable, unbiased and independent medical evaluation of the Plaintiff’s injuries arising from the crash giving rise to this litigation. Count 1: Breach of Contract 6.02 Although Plaintiff fully cooperated with Consumers County Mutual, and despite the fact that all conditions precedent to recovery have occurred, Consumers County Mutual has failed and refused to pay to Plaintiff the benefits due under the contracts of insurance in question, which was in full force and effect at the time of the occurrence which forms the basis of this lawsuit. 6.03 The conduct of Consumers County Mutual constitutes a breach of contract in the following particulars: a. By failing and/or refusing to pay Plaintiff’s claim promptly; b. By failing and/or refusing to evaluate Plaintiff’s claim fairly; and c. By breaching the duty of good faith and fair dealing. 6.04 Each of these acts constitute a prima facie showing of Consumers County Mutual’s breach of contract entitling Plaintiff to sue in an amount in excess of the minimum jurisdictional limits of this Court. All conditions precedents have been performed or have occurred. 6.05 Plaintiff is entitled to recover reasonable attorney's fees because this is a claim on a written contract within the meaning of Texas Civil Practice and Remedies Code Section 38.001. Count 2: Breach of Duty of Good Faith/ Fair Dealing 6.06 Consumers County Mutual breached its duty of good faith and fair dealing by failing to offer a reasonable settlement for Plaintiff’s claim for first party benefit from the date of being presented due proofs and and the date of Plaintiff’s live petition. Consumers County Mutual owed PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 5 of 13 the duty of good faith and fair dealing to Plaintiff and Plaintiff is entitled to recover damages proximately caused by Consumers County Mutual’s breach of their duty of good faith and fair dealing. 6.07 The failure to settle Plaintiff’s uninsured motorist claims on or between receiving due proofs and the date of this petition violates TEXAS INSURANCE CODE § 541.060, § 541.151, and §542.03 regarding unfair competition, unfair practices, and the prompt payment of claims. Additionally, by virtue of the foregoing, Consumers County Mutual has violated TEXAS BUSINESS & COMMERCE CODE § 17.46 (hereinafter referred to as the “DTPA”). Specifically, LIC violated TEXAS DECEPTIVE TRADE PRACTICES ACT § 17.46(B)(5, 7, 12, and 24). Therefore, Plaintiff are entitled to treble damages pursuant to TEXAS DECEPTIVE TRADE PRACTICES ACT § 17.50(A)(4). 6.08 Plaintiff has complied with the mandate that a DTPA demand letter be sent to Consumers County Mutual. A notice of claim and demand for payment was mailed by Plaintiff to Consumers County Mutual on or about April 2, 2015. To date, Consumers County Mutual has not made an attempt to correspond and communicate their position as to whether they will accept or reject Plaintiff’s UIM claim. 6.09 Plaintiff hired the undersigned law firm to provide legal assistance in prosecuting this action. Pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE § 38.001 and TEXAS BUSINESS & COMMERCE CODE §17.50(D), Plaintiff are entitled to recover reasonable attorney’s fees to prosecute this action and in prosecuting any appeals from the judgment in this cause. Count 3: Negligence and Negligent Misrepresentation 6.10 Consumers County Mutual, its agents, servants, officers, and employees, were negligent in the following acts or omissions: a. Failing to properly acknowledge Plaintiff’s claims; PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 6 of 13 b. Failing to reasonably investigate Plaintiff’s claims; c. Failing to reasonably evaluate Plaintiff’s claims; d. Failing to promptly compensate Plaintiff; and e. Failing to make a reasonable settlement offer of Plaintiff’s claims. 6.11 Consumers County Mutual and its agents, servants, officers, and employees owed Plaintiff the duty of reasonable care in acknowledging, investigating, processing, and financially satisfying Plaintiff’s claims under the subject uninsured motorist insurance policy. 6.12 Consumers County Mutual violated its duties and was negligent in the particulars set forth above. 6.13 Consumers County Mutual knew or should have known that Plaintiff would rely upon Consumers County Mutual’s acts, omissions, and misrepresentations. Plaintiff did, in fact, reasonably rely on Consumers County Mutual’s acts, omissions, and misrepresentations when purchasing said insurance policy and presenting a claim under said insurance policy. Consumers County Mutual knew and had reason to know that its acts, omissions, and misrepresentations would cause financial hardship, additional stress, and anxiety to Plaintiff. Through solicitation, Consumers County Mutual made statements and representations about the quality of service and product Consumers County Mutual provided. Said representations were relied upon and insurance based on was purchased as a result. In addition, Plaintiff presented claims to Consumers County Mutual based on its statements and representations regarding the quality of Consumers County Mutual’s product and service. Upon the presentment of Plaintiff’s claims, Consumers County Mutual failed to produce the quality of service and product advertised, causing Plaintiff to be injured. Each of the above- mentioned acts, omissions, and misrepresentations was a proximate cause of the damages suffered by Plaintiff. PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 7 of 13 Count 4: Texas Insurance Code §541, 542 6.14 The Texas Legislature enacted Chapter 541 of the Texas Insurance Code to regulate trade practices in the business of insurance by: (1) defining or providing for the determination of trade practices in this state that are unfair methods of competition or unfair or deceptive acts or practices; and (2) prohibiting those trade practices. Further, the legislature made it clear that this Act "shall be liberally construed and applied to promote its underlying purposes as set forth in this section." Tex. Ins. Code. §541.008. 6.15 Plaintiff would show that Defendants violated Chapter 541 of the Texas Insurance Code by engaging in an unfair and deceptive course of conduct which precluded Plaintiff from receiving a recovery for his uninsured motorist claim herein in a timely manner. Specifically, Plaintiff asserts that Consumers County Mutual failed to provide Plaintiff with insurance coverage as required by the terms of the Policies. 6.16 Plaintiff further would show that Plaintiff made written demand to Consumers County Mutual for the purpose of seeking settlement of these matters pursuant to Chapter 541 of the Texas Insurance Code. Despite numerous attempts to settle his claim, Plaintiff’s underinsured motorist claim remains unresolved. 6.17 Plaintiff further would show that Consumers County Mutual failed to attempt in good faith to effectuate a prompt, fair, and equitable settlement of Plaintiff’s claim in violation of Section 541.060(2). 6.18 Plaintiff further would show that Consumers County Mutual failed to promptly give Plaintiff a reasonable explanation, based on the policy as it relates to the facts or applicable law, for PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 8 of 13 the LIC’s offer of a compromised settlement on Plaintiff’s claim in violation of Section 541.060(3). 6.19 Plaintiff further would show that Consumers County Mutual refused to pay Plaintiff’s claim without conducting a reasonable inspection in violation of Section 541.060(6). 6.20 Plaintiff further would show that Consumers County Mutual failed to disclose the limits of the insuring agreement and provide a copy of the policy required by law to be disclosed in violation of Section 541.061(5) and Section 1952.055(c). 6.21 Plaintiff further would show the above described actions of Consumers County Mutual were committed knowingly, thus entitling Plaintiff to treble damages as provided in the Texas Insurance Code. 6.22 In addition, the Texas Legislature enacted Chapter 542 of the Texas Insurance Code also known as the Unfair Claim Settlement Practices Act to prohibit insurance companies and their representatives from engaging in Unfair Claim Settlement Practices. The Act mandates that "No insurer doing business in this state under the authority, rules and regulations of this code shall engage in unfair claim settlement practices." 6.23 Plaintiff further would show that Consumers County Mutual did not attempt in good faith to effect a prompt, fair, and equitable settlement of a claim submitted in which liability has become reasonably clear in violation of Section 542.003(b)(4). 6.24 Moreover, the Texas Legislature also enacted Chapter 542 of the Texas Insurance Code also known as the Prompt Payment of Claims Act. This Act imposes specific deadlines for claims handling procedures to ensure the prompt payment of claims. The legislature expressly stated that this Act "shall be liberally construed to promote its underlying purpose which is to obtain prompt payment of claims made pursuant to policies of insurance." PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 9 of 13 6.25 Plaintiff would show that Consumers County Mutual failed to timely acknowledge receipt of Plaintiff’s claim and commence an investigation of the claim in violation of Section 542.055(a). Plaintiff further would show that LIC did not notify Plaintiff in writing of the acceptance or rejection of a claim not later than the fifteenth business day after the date Consumers County Mutual receives all items, statements, and forms required in violation of Section 542.056(a). 6.26 Plaintiff further would show that, if Consumers County Mutual was unable to accept or reject the claim within the fifteen day time period, Consumers County Mutual did not notify Plaintiff of the reasons that Consumers County Mutual needed additional time in violation of Section 542.056(d). 6.27 Plaintiff further would show that Consumers County Mutual’s delayed payment of Plaintiff’s claim in violation of Section 542.058. If an insurer is not in compliance with Chapter 542, which Consumers County Mutual is not, the insurer is liable to Plaintiff, in addition to the amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages, together with reasonable attorney's fee, to be taxed as costs. Tex. Ins. Code. §542.060. Count 5: Violation of DTPA and Insurance Code 6.28 Consumer County Mutual is guilty of violations of the Texas Deceptive Trade Practices and Consumer Protection Act and the Texas Insurance Code. Consumers County Mutual and its agents, employees, and representatives, have knowingly and intentionally engaged in false, misleading, or deceptive acts or practices including, but not limited to, representing that goods or services have characteristics or benefits which they do not have; and representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve or which are prohibited by law. PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 10 of 13 6.29 Such Violations 0f the Texas DTPA and Texas Insurance Code were committed knowingly, and as such, the Plaintiff is entitled to recover statutory "additional" damages. Declaratory Relief 6.30 A11 allegations herein are incorporated by reference. Pleading further, Plaintiff brings this action against LIC for declaratory relief under the Uniform Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE §§ 37.001 et seq. (“UDJA”). Plaintiff requests that this Court establish by declaratory judgment: a. that Plaintiff is covered under the policy; b. that Plaintiff is entitled to uninsured motorist coverage under the policy; c. that Plaintiff was proximately caused damages by the negligence and/ or gross negligence 0f an unisured driver 6.40 Pursuant to UDJA section 37.008, Plaintiff filrther prays for recovery of costs and reasonable and necessary attorney fees as are equitable and just. VII. DAMAGES 7.01 As a direct and proximate result 0f the occurrence made the basis 0f this lawsuit, Plaintiffs were caused t0 suffer severe bodily injuries and damages as set out below. a. Reasonable expenses for necessary medical care in the past and filture; b. Lost wages and/or lost earning capacity, past and future; c. Pain and suffering in the past and future; d. Physical impairment in the past and future; e. Disfigurement, past and filture; f. Property Damage; g. Loss oste; and PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 11 0f 13 h. Defendants’ conduct When Viewed objectively, involved an extreme degree ofrisk, considering the probability and magnitude 0f the potential harm t0 others, and 0f Which each Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of others, specifically including Plaintiff, as such, Plaintiff additionally seek exemplary damages as allowed by Chapter 41 0f the Texas Civil Practice & Remedies Code. IIX. REQUEST FOR DISCLOSURE Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is requested t0 disclose, within fifty (50) days of service of this request, the information 0r material described in Rule 194.2 (a—l). PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfillly prays that the Defendants be cited t0 appear and answer herein, and that upon final hearing 0f the cause, judgment be entered for the Plaintiff against the Defendants, jointly and severally, for damages in an amount within the jurisdictional limits of the Court, together with pre-judgment and post- judgment interest at the maximum rate allowed by law, costs of court, and such other and further relief to Which Plaintiff may show himselfjustly entitled. PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 12 0f 13 Respectfillly submitted, RAD LAW FIRM BY:_/s/ Daryoush Toofanian DARYOUSH TOOFANIAN State Bar No. 24039801 8001 LBJ Freeway, Suite 300 Dallas, Texas 75251 Main Phone (972) 661—1 1 11 Direct Fax (972) 354—5655 E-service: efileDTQDradlawfirmcom dtoofanian@radlawfirm.com (communications only) ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE A copy ofthe foregoing was delivered to all counsel ofrecord by e-service 0n June 8, 2020. _/s/ Daryoush Toofanian DARYOUSH TOOFANIAN PLAINTIFF’S THIRD AMENDED PETITION AND REQUEST FOR DISCLOSURE Page 13 of 13