Motion to Amend in VASHONE RHODES vs. JAMES GOMEZ, et al| Trellis.Law

On August 02, 2019 a Complaint,Petition was filed involving a dispute between Rhodes, Vashone, and Exclusive Nationwide Delivery, Inc, Gomez, James, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
11/28/2022 3:53 PM
1 C'T ESERVE FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Daniel Macias DEPUTY

CAUSE NO. DC-19-10926
VASHONE RHODES; THE DISTRICT COURT OF

§§§§§§§§§§§§
IN

Plaintiff,

VS. DALLAS COUNTY, TEXAS

JAMES GOMEZ; EXCLUSIVE
NATIONWIDE DELIVERY INC.; AND
GEICO COUNTY MUTUAL
INSURANCE COMPANY;

Defendants. 160T” JUDICIAL DISTRICT

PLAINTIFF'S THIRD AMENDED PETITION

Plaintiff Vashone Rhodes files Plaintiff's Third Amended Petition

complaining of Defendants James Gomez, Exclusive Nationwide Delivery, Inc.,

and Geico County Mutual Insurance Company.

I. DISCOVERY CONTROL PLAN

Discovery is intended to be conducted under Level 3 pursuant to Rule 190

of the TEXAs RULES 0F CIVIL PROCEDURE.

ll. RULE 47 PLEADING REQUIREMENTS

As required by Rule 47(b), Texas Rules of Civil Procedure, Plaintiff's

counsel states that the damages sought are in an amount within the

jurisdictional limits of this Court. As required by Rule 47(c), Texas Rules of Civil

Procedure, Plaintiff's counsel states that Plaintiff seeks monetary relief of over

$250,000, but not more than $1,000,000. The amount of monetary relief

actually awarded, however, will ultimately be determined by a jury. Additionally,

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 1
Plaintiff seeks non-monetary relief by way of a declaratory judgment. Plaintiff

also seeks pre-judgment and post-judgment interest at the highest legal rate.

Ill. PARTIES
Plaintiff Vashone Rhodes is an individual resident of Red Oak, Ellis

County, Texas. His driver’s license number is *****334.

Defendant James Gomez is an individual resident of Grand Prairie, Dallas

County, Texas, and has appeared and answered herein.

Defendant Exclusive Nationwide Delivery, Inc. is a corporation doing

business in the State of Texas, and has appeared and answered herein.

Defendant Geico County Mutual Insurance Company is an insurance

company licensed to do business in the State of Texas, and said corporation is

engaged in writing insurance in Texas. Defendant Geico County Mutual

Insurance Company may be served with process by serving its registered agent,

Dan Beacom, at 2280 North Greenville Avenue, Richardson, Texas 75082.

IV. JURISDICTION AND VENUE

The Court has jurisdiction over the controversy because the damages are

within the jurisdictional limits of this Honorable Court.

This Court has venue over the parties to this action since the incident

complained of herein occurred in Dallas County, Texas. Venue therefore is

proper in Dallas County, Texas pursuant to the TEXAS CIVIL PRACTICE &

REMEDIES CODE §15.002.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 2
V. FACTS

This lawsuit arises out of a motor vehicle collision that occurred on

Tuesday, November 27, 2018, at the intersection of l-35E and Wintergreen Road

within the city limits of Desoto, Dallas County, Texas. Plaintiff Vashone Rhodes

was operating his vehicle northbound on l-35E and was stopped for trafﬁc ahead.

Defendant James Gomez was operating his truck and trailer, while in the course

and scope of his employment with Defendant Exclusive Nationwide Delivery,

|nc., and operating under the Federal Motor Carrier authority of Defendant.

Defendant James Gomez was behind Plaintiff's vehicle in the same lane, and

headed in the same direction, when he failed to slow and/or stop, colliding hard

with the back of Plaintiff’s vehicle. As a result of the collision, Plaintiff was injured

and continues to suffer injuries and damages from this incident.

VI. CAUSES OF ACTION

A. NEGLIGENCE — DEFENDANT JAMES GOMEZ

At the time of the motor vehicle collision, Defendant James Gomez was

operating his vehicle negligently. Specifically, Defendant had a duty to exercise

ordinary care and operate his vehicle reasonably and prudently. Defendant

breached that duty in one or more of the following respects:

1. Defendant failed to keep such proper lookout and attention to the
roadway as a person of ordinary prudence would have kept under
the same or similar circumstances;

2. Defendant failed to control the speed of his vehicle;

3. Defendant failed to keep an assured safe distance from Plaintiff's
vehicle;

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 3
4. Defendant failed to timely apply the brakes of his vehicle in order to
avoid the collision in question;

5. Defendant failed to turn his vehicle in an effort to avoid the collision;
and

6. Defendant failed to have or apply all his mental faculties because
he was distracted by cell phone usage.

B. GROSS NEGLIGENCE — CELL PHONE USE OF DEFENDANT JAMES
GOMEZ

In addition to actual damages, Plaintiff seeks to recover exemplary or

punitive damages from Defendant because Defendant’s conduct was of such

character as to constitute gross negligence. Defendant’s actions in connection

with the collision involved an extreme degree of risk considering the probability

and magnitude of the potential harm to Plaintiff and to other users of the public

roadways. Defendant had actual subjective knowledge of the risk involved but

nevertheless acted in conscious indifference to the rights, safety, and welfare of

others, including the Plaintiff, when the Defendant chose to operate a vehicle

while using a cell phone at the time of the collision.

C. VICARIOUS LIABILITY UNDER THE STATUTORY EMPLOYER
DOCTRINE UNDER 390.5 OF THE FEDERAL MOTOR CARRIER
SAFETY REGULATIONS (“FMCSRs”) — DEFENDANT EXCLUSIVE
NATIONWIDE DELIVERY, INC.

Further, at the time of the collision in question Defendant Exclusive

Nationwide Delivery, Inc. was a motor carrier operating in interstate commerce

subject to the Federal Motor Carrier Safety Regulations. The rules under 49

C.F.R. § 390.3T are applicable to all employers, employees and commercial

motor vehicles that transport property or passengers in interstate commerce.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 4
Under the FMCSRs, even as an independent contractor, Jamez Gomez was

acting in the course and scope of his statutory employment with Defendant

Exclusive Nationwide Delivery, Inc. at the time of the collision in question.

James Gomez was Exclusive Nationwide Delivery, lnc.’s statutory employee

under the FMCSRs, which makes Exclusive vicariously liable as a matter of law

for Gomez’s negligence in operating the vehicle and trailer used for Exclusive’s

business.

D. RESPONDEAT SUPERIOR — DEFENDANT EXCLUSIVE NATIONWIDE
DELIVERY, INC.

Additionally, Plaintiff would show that at the time and on the occasion

complained of, Defendant James Gomez was in the course and scope of his

employment with Defendant Exclusive Nationwide Delivery, Inc., thereby making

Defendant liable under the doctrine of Respondeat Superior. Under the doctrine

of respondeat superior, an employer is vicariously liable for the negligence of an

agent or employee acting within the scope of his or her agency or employment.

Each of the above and foregoing acts and omissions, singularly or in

combination, constituted the negligence that was the proximate cause of the

motor vehicle collision and consequently the injuries and damages of the minor

Plaintiff.

E. DECLARATORY JUDGMENT ACTION AGAINST DEFENDANT GEICO
COUNTY MUTUAL INSURANCE COMPANY

Plaintiff asserts that all conditions precedent to the bringing of these

causes of action have been performed or have occurred prior to the ﬁling of the

causes of action at bar.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 5
At all relevant times, Plaintiff was insured under an automobile insurance

policy with Defendant Geico County Mutual Insurance Company, Policy No.

4515-42-98—45, which insured Plaintiff in the event he was damaged or injured by

the negligence of an underinsured motorist. Plaintiff has complied with all the

terms and conditions of the policy prior to bringing this action. Plaintiff would

show that at the time of trial of this matter he will offer into evidence a copy of

said policy, unless the original of the same is produced by Defendant Geico

County Mutual Insurance Company, at said trial. In this regard, Plaintiff would

show that James Gomez was in fact an underinsured motorist as defined by law

and the policy in question.

Plaintiff presented his claim for underinsured motorist benefits under the

contract of insurance with Geico County Mutual Insurance Company. Plaintiff

pleads that all conditions precedent to ﬁling suit have been complied with,

including the statutory notice provision.

Plaintiff asserts his claim under Texas Civil Practice and Remedies Code

37.001, et seq. to have their rights, status, and other legal relationships under the

Insurance Policy they purchased from Defendant Geico County Mutual Insurance

Company established by a court of competentjurisdiction. Plaintiff seeks a

declaration from the Court that:

1. The negligence of James Gomez in that automobile wreck was the

proximate cause of bodily injuries and damages to Plaintiff, which injuries include

the following:

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 6
Plaintiff's past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;

Plaintiff's future medical expenses;

Plaintiff's physical pain and suffering in the past and future in an
amount to be determined by the jury;

Plaintiff's mental anguish in the past and future in an amount to be
determined by the jury; and

Plaintiff's physical impairment in the past and future in an amount to
be determined by the jury.

2. Plaintiff's claim for underinsured motorist benefits under Policy

Number 4515-42-98-45, (hereafter the “Insurance Policy”) as a result of a car

wreck that occurred on November 27, 2018, is covered under the Insurance

Policy.

3. Plaintiff also seeks a declaration determining the amount of

underinsured motorist beneﬁts that he is entitled to recover from Defendant

Geico County Mutual Insurance Company after all applicable set-offs and credits,

for each of the following elements of damages covered under the Insurance

Policy:

a. Plaintiff's past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;

Plaintiff's future medical expenses;

Plaintiff's physical pain and suffering in the past and future in an
amount to be determined by the jury;

Plaintiff's mental anguish in the past and future in an amount to be
determined by the jury; and

Plaintiff's physical impairment in the past and future in an amount to
be determined by the jury.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 7
Pursuant to §37.009 of the Texas Civil Practice and Remedies Code,

Plaintiff seeks all costs and reasonable and necessary attorneys’ fees, as are

equitable and just, which are incurred or which may be incurred in this matter

including all such fees and expenses:

a. For preparation and trial;

b. For an appeal to the Court of Appeals;

c. For making or responding to an application for writ of error to the
Supreme Court of Texas; and

d. If application for writ of error is granted by the Supreme Court of
Texas.

Plaintiff now asks the Court, pursuant to the Texas Declaratory

Judgments Act §37.001 et. seq., for a declaration that his injuries and damages

fall within the coverage of the Insurance Policy issued by Defendant Geico

County Mutual Insurance Company and for a declaration of their rights to such

beneﬁts and judgment against Defendant Geico County Mutual Insurance

Company.

VII. DECLARATORY RELIEF
Plaintiff asserts claims under Texas Civil Practice and Remedies Code

37.001, et seq. to have his rights, status, and other legal relationships under the

Insurance Policy he purchased from Defendant Geico County Mutual Insurance

Company, established by a court of competent jurisdiction. Plaintiff seeks a

declaration from the Court that:

A. The negligence of James Gomez in that automobile wreck was the

proximate cause of bodily injuries and damages to Plaintiff, which injuries include

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 8
the following:

1. Reasonable and necessary health care expenses incurred in
the past;

2. Reasonable and necessary health care expenses, which in
all reasonable probability, will be incurred in the future;

3. Physical pain and suffering in the past;

4. Physical pain and suffering which, in all reasonable
probability, will be endured in the future;

5. Mental anguish suffered in the past;

6. Mental anguish which, in all reasonable probability, will be
suffered in the future;

7. Physical impairment suffered in the past; and

8. Physical impairment which, in all reasonable probability, will
be suffered in the future.

B. Plaintiff's claim for underinsured motorist benefits under Policy No.

4515-42-98-45, (hereafter the “Insurance Policy”) as a result of a car wreck that

occurred on November 27, 2018, is covered under the Insurance Policy;

C. Plaintiff also seeks a declaration determining the amount of

underinsured motorist beneﬁts that he is entitled to recover from Defendant

Geico County Mutual Insurance Company, after all applicable set-offs and

credits, for each of the following elements of damages covered under the

Insurance Policy:

1. Reasonable and necessary health care expenses incurred in
the past;

Reasonable and necessary health care expenses, which in
all reasonable probability, will be incurred in the future;

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 9
Physical pain and suffering in the past;

Physical pain and suffering which, in all reasonable
probability, wi|| be endured in the future;

Mental anguish suffered in the past;

Mental anguish which, in all reasonable probability, will be
suffered in the future;

Physical impairment suffered in the past; and

Physical impairment which, in all reasonable probability, will
be suffered in the future.

Pursuant to §37.009 of the Texas Civil Practice and Remedies Code,

Plaintiff seeks a|| costs and reasonable and necessary attorneys' fees, as are

equitable and just, which are incurred or which may be incurred in this matter

including all such fees and expenses:

a. For preparation and trial;

b. For an appeal to the Court of Appeals;

For making or responding to an application for writ of error to
the Supreme Court of Texas; and

If application for writ of error is granted by the Supreme Court
of Texas.

Plaintiff now asks the Court, pursuant to the Texas Declaratory Judgments

Act §37.001 et. seq., for a declaration that his injuries and damages fall within the

coverage of the Insurance Policy issued by Defendant Geico County Mutual

Insurance Company and for a declaration of his rights to such beneﬁts and

judgment against Defendant.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 10
VIII. DAMAGES

A. DEFENDANTS JAMES GOMEZ AND EXCLUSIVE NATIONWIDE
DELIVERY, INC.
As a proximate result of Defendants' negligence, Plaintiff suffered

extensive injuries and damages. As a result of Plaintiff's injuries, Plaintiff suffered

the following damages:

a. Medical expenses in the past and future;

b. Physical impairment in the past and future;

C. Physical pain and suffering in the past and future; and

d. Mental anguish in the past and future.

B. DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY

Plaintiff alleges that as a direct and proximate result of the conduct and

negligent acts and omissions of the underinsured motorist, Plaintiff is entitled to

recover at least the following damages from Defendant Geico County Mutual

Insurance Company:

a. Reasonable and necessary health care expenses incurred in the
past;

Reasonable and necessary health care expenses, which in all
reasonable probability, will be incurred in the future;

Physical pain and suffering in the past;

Physical pain and suffering which, in all reasonable probability, will
be endured in the future;

Mental anguish suffered in the past;

Mental anguish which, in all reasonable probability, will be suffered
in the future;

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 11
g. Physical impairment suffered in the past; and

h. Physical impairment which, in all reasonable probability, will be
suffered in the future.

IX. ATTORNEYS’ FEES
Because of the conduct of Defendant Geico County Mutual Insurance

Company, Plaintiff has been forced to engage the services of an attorney to

prosecute this action. Plaintiff is entitled to recover a reasonable sum for the

necessary services of the attorneys in the preparation and trial of this action and

for any appeals to the court of appeals or the Texas Supreme Court. Therefore,

an award of reasonable attorneys’ fees is authorized by §37.009 of the TEXAS

CIVIL PRACTICE AND REMEDIES CODE.

X. INTEREST

Plaintiff is also entitled to pre-judgment and post-judgment interest and

costs of Court as allowed by law.

XI. INTENT TO USE DEFENDANT'S DOCUMENTS

Plaintiff hereby gives notice of intent to utilize items produced in discovery

against the party producing same. The authenticity of such items is self-proven

per TRCP 193.7.

IX. JURY TRIAL
Plaintiff paid for a trial by jury.

X. U.S. LIFE TABLES

Notice is hereby given to the Defendants that Plaintiff intends to use the

U.S. Life Tables as prepared by the Department of Health and Human Services.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 12
XI. RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that
Defendants James Gomez and Exclusive Nationwide Delivery, Inc. be cited to

appear and answer herein, and that upon ﬁnal hearing thereof, Plaintiff recover

judgment against Defendants James Gomez and Exclusive Nationwide Delivery,

Inc. for:

1. Plaintiff's past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;

Plaintiff's future medical expenses;

Plaintiff's physical pain and suffering in the past and future in an
amount to be determined by the jury;

Plaintiff's mental anguish in the past and future in an amount to be
determined by the jury;

Plaintiff's physical impairment in the past and future in an amount to
be determined by the jury;

Interest on the judgment at the legal rate from the date of judgment;

Pre-judgment interest on Plaintiff‘s damages as allowed by law;

All costs of court; and

9. Such other and further relief to which Plaintiff may be justly entitled.

WHEREFORE, PREMISES CONSIDERED, Plaintiff additionally requests
that Defendant Geico County Mutual Insurance Company be cited to appear and

answer herein, and that upon ﬁnal hearing thereof, Plaintiff recoverjudgment

against Defendant Geico County Mutual Insurance Company for:

1. Plaintiff's past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 13
2. Plaintiff's future medical expenses;

3. Plaintiff's lost wages in the past and loss of earning capacity in the
future;

4. Plaintiff's physical pain and suffering in the past and future in an
amount to be determined by the jury;

5. Plaintiff's mental anguish in the past and future in an amount to be
determined by the jury;

6. Plaintiff's physical impairment in the past and future in an amount to
be determined by the jury;

6. Plaintiff's property damage and loss of use of Plaintiff's vehicle;

7. Interest on the judgment at the legal rate from the date of judgment;

8. Pre-judgment interest on Plaintiff's damages as allowed by law;

9. All costs of court;

10. Attorneys’ fees; and

11. Such other and further relief to which Plaintiff may be justly entitled.

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 14
Respectfully submitted,

WITHERITE LAW GROUP, PLLC

BY: /s/ V. Paige Eldridge
V. PAIGE ELDRIDGE
State Bar No. 24096747
paiqe.eldridqe@witheritelaw.com
SHELLY GRECO
State Bar No. 24008168
shelIv.qreco@witheritelaw.com
10440 N. Central Expressway
Suite 400
Dallas, TX 75231-2228
214/378-6665
214/378-6670 (fax)

ATTORNEYS FOR PLAINTIFF

ERTIFICATE 0F SERVICE
|
hereby certify that a true and correct copy of the foregoing has been

fonNarded to all counsel of record on this 28th day of November, 2022 pursuant to

Rule 21a of the Texas Rules of Civil Procedure.

/s/ V. Paiqe Eldridae
V. Paige Eldridge

Randall G. Walters
Nadine K. Weatherall
Walters, Balido & Crain, LLP
Meadow Park Tower, 15th Floor
10440 North Central Expressway
Dallas, TX 75231

John W. Breeze
Adam B. LeCrone
The LeCrone Law Firm, P.C.
Wall Street Plaza
123 N. Crockett Street, Suite 200
Sherman, TX 75090

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION —
Page 15
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.

Alexa Thompson on behalf of Paige Eldridge
Bar No. 24096747
alexa.thompson@witheritelaw.com
Envelope ID: 70492871
Status as of 12/2/2022 2:46 PM CST

Associated Case Party: VASHONE RHODES

Name BarNumber Email TimestampSubmitted Status

Paige Eldridge paige.eldridge@witheritelaw.com 11/28/2022 3:53:57 PM SENT

Associated Case Party: EXCLUSIVE NATIONWIDE DELIVERY, INC

Name BarNumber Email TimestampSubmitted Status
Randall GWalters waItersedocsnotifications@wbclawfirm.com 11/28/2022 3:53:57 PM SENT
Nadine K Weatherall nadine.weatherall@wbclawfirm.com 11/28/2022 3:53:57 PM SENT
Randall GWalters randy.walters@wbclawfirm.com 11/28/2022 3:53:57 PM SENT

Associated Case Party: JAMES GOMEZ

Name BarNumber Email TimestampSubmitted Status
Adam LeCrone eservice@lecronelaw.com 11/28/2022 3:53:57 PM SENT

Case Info

Judge

REDMOND, AIESHA Track Judge’s New Case

Case No.

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Document Filed Date

November 28, 2022

Case Filing Date

August 02, 2019

County

Parties

BREEZE, JOHNNY W Attorney for the Defendant
ELDRIDGE, V. PAIGE Attorney for the Plaintiff
EXCLUSIVE NATIONWIDE DELIVERY, INC Defendant
GOMEZ, JAMES Defendant
HOLCOMB, RHONDA D Attorney for the Defendant
LAIRD, PAUL CRAIG Attorney for the Defendant
LECRONE, ADAM B Attorney for the Defendant
RHODES, VASHONE Plaintiff
WALTERS, RANDALL G Attorney for the Defendant
WEATHERALL, NADINE K Attorney for the Defendant
William Schultz Attorneys for Plaintiffs
Vivian Eldridge Attorneys for Plaintiffs
Shelly Greco Attorneys for Plaintiffs
David Kennedy Attorney
Amy Witherite Attorneys for Plaintiffs
Mark Teague Attorneys for Defendants
Hillary Clark Attorneys for Defendants
Alexandria Carpenter Attorneys for Defendants
Blaise Wilcott Attorneys for Defendants
Michael Kelly Attorneys for Defendants
Trevor Beaty Attorneys for Defendants
Selene Peña Attorneys for Defendants
Molly Kaelin Attorneys for Defendants
Mark Humphrey Attorneys for Defendants
Ashanti Baker Attorneys for Defendants
John Merritt Attorneys for Defendants
Rhonda Denton Attorney
Megan Andrus Attorneys for Defendants

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Complaint,Petition: VASHONE RHODES vs. JAMES GOMEZ, et al

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