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CAUSE NO. 2021-70308
KYLE J. MCPIKE, § IN THE DISTRICT COURT OF
Plaintiff,
§ HARRIS COUNTY, TEXAS
HOMEOWNERS OF AMERICA §
INSURANCE COMPANY,
Defendant. § 215 JUDICIAL DISTRICT
PLAINTIFF’S REPLY TO DEFENDANT S RESPONSE TO PLAINTIFF MOTION TO
COMPEL REQUIREDDISCLOSURES
COMES NOW Kyle J. McPike “Plaintiff” and/or “McPike”) and files this Reply to
Defendant’s Response to Plaintiff’Motion to Compel Required Disclosures ( Reply”) and would
respectfully show this Honorable Court as follows:
Defendant starts off its Response to Plaintiff s Motion to Compel Required Disclosures
(“Response” mischaracterizing the facts leading up to Defendant’s failure to comply with the
Texas Rules of Civil Procedure. Defendant s Response lacks any valid defense or justifiable excuse
foits failure to provide the required disclosures under
fendant attempts to argue that it is entirely excused from complying with the Texas Rules
of Civil Procedure because this suit somehow is, or should be, abated Clearly this case is not
abated, and Defendant has no grounds for requesting abatement. Even if it did, Defendant cannot
simply refuse to respond to discovery pending a Court Order. Defendant has steadfastly relied on
is blatantly incorrect and frivolous argument as a means of escaping its duties under the law.
Defendant is a party to the lawsuit and is required to litigate and engage in discovery. Defendant
has simply refused to do so. None of Defendant’s arguments in its Response provide any sort of
excuse for its pla nd s mple refusal respond to discovery in complian with the Texas Rules
of Civil Procedure
praisal is irrelevant to the issues in Plaintiff s Motion to Compel. oreover,
appraisal is not applicable this case.
efendant s frivolous argument that pre suit appraisal is required is completely irrelevant
to the issues in Plaintiff otion to Compel Defendant s Required Disclosures Moreover, it
gument is incorrect. As explained to Defendant numerous times, the appraisal provision in the
licy does not apply to this case. The appraisal provision only applies in cases where there is a
disagreement as to the amount of loss. There is no evidence of any sort of disagreement of the
amount of loss, and Defendant has failed to provide any evidence of this despite it being a required
condition pr ent to appraisal under the Policy
This case involves a coverage issue. Defendant agrees that the damages from the loss
exceed , but because of its improper reliance on the Policy Limited Water Damage
dorsement, Defendant has refused to pay more than the Endorsement s $10,000 sublimit.
Moreover, Defendant has refused to disclose what its determination on the amount of loss is
Defendant s statement that it has found the damages to be in cess f $10,000, without actually
disclosing what the full amount is, is not evidence of a disagreement. Plaintiff cannot truthfully and
honestly claim that it disagrees with a number it does not even know. If anything, it could very well
be possible that Defendant s valuation of thelos s is consistent with Plaintiff resulting in
disagreement as to amount of loss at all However, even if this s the case, he coverage issue
would still remain unresolved.
Plaintiff has put Defendant on notice of the coverage issues numerous times. In fact,
Exhibit 1: Policy excerpts at p.
Exhibit 2: Defendant Letter at p. 2.
Defendant has agreed on numerous occasions that this case does indeed rest on a coverage issue.
Despite its knowledge of the coverage issue in this case, and despite being unable to come forth
with evidence as to a disagreement on the amount of loss in order to satisfy the condition precedent
for appraisal, Defendant continues to assert that appraisal was mandatory. Moreover, Defendant
now attempts to argue that, because of this, it is not required to respond to required discovery under
Not only is appraisal not required as Defendant cannot show any evidence of a
disagreement as to the amount of loss in order to trigger the appraisal requirement appraisal would
not resolve the coverage issue in this case For example, if the Parties’ appraisers agree that the loss
exceeds $10,000, whether that amount be $1,000,000 or $10,001, Defendant will inevitably refuse
further payment on the basis that it owes no additional money under the Policy due to its reliance
on the Limited Water Damage Endorsement limiting its exposure to only $10,000. Because
appraisers are not allowed to consider coverage issues , and because the damages evidently exceed
$10,000, as admitted by Defendant , any appraisal award will inevitably lea back tothe coverage
issueand put the Parties in the exact same position prior to appraisal.
This case is not abated, and Defendant did not comply with Tex. Ins. Code § 542A
in its attempt to abate this case.
Defendant’s statement that HOAIC filed with its answer a verified plea in abatement,
alleging Plaintiff’s pre suit notice did not comply with ODE § 542A.003 is entirely
incorrect.
See Exhibit A to Defendant s Response at p. 3; see also Defendant s Original Answer filed November 29, 2021 at p.
¶ 16 and .
“Appraisers [are] not to construe the policy or decide whether the insurer should pay.” State Farm Lloyds v. Johnson,
290 S.W.3d 886, 892 (Tex. 2009)
Exhibit 2 at p. 2.
Defendant s Response at p. 1, ¶ 2.
Defendant’s alleged verified plea in abatement included as part of its Original Answer,
is not complaint with the requirements under ODE § 542A.00 The party seeking
abatement has the burden of proof to establish the allegations in its motion.”
Defendant’s Answer evidently fails to provide proper “plea” or explanation as to why
or how it was not provided with the mandatory pre suit notice Defendant’s “plea” fails to include
any specific information supporting its allegations. It is unclear what quirement under
ODE § 542A.00 Defendant is claiming is deficient and further fails to provide any explanation
as to why. Defendant has simply failed to establish its allegations of a deficient pre suit notice.
Additionally Defendant affidavit in support of its “verified” plea is also grossly deficient
Its affidavit, which is not even referenced in its “plea at all, fails to include any explanation in
support of its allegation that Plaintiff’s pre suit notice is not compliant under ODE
542A. n fact, the affidavit is entirely silent as to any reference or mention of ODE
§ 542A.. Instead of citing to the statute it relies on, Defendant cites to completely different and
elevant statutes in support of its allegations that have no bearing on ODE § 542A.003
or § 542A. 5 at all. Defendant has failed to meet its requirement under ODE § 542A.
producing an affidavit that neither references nor explains anything in support of its allegations
of a deficient pre suit notice. Accordingly, Defe ’s affidavit is entirely deficient and fails to
support its arguments for abatement under 542A.00
astly, Defendant s statement that because Plaintiff did not file a controverting affidavit to
HOAIC’s verified plea in abatement, the matter is automatically abated by plain law is incorrect
In re Vanblarcum, No. 13 00056 CV, 2015 WL 1869415, at *1 (Tex. App.Corpus Christi Apr. 22, 201 5, pet.
denied) (mem. op.) (citing cases); Southern Cty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 69 (Tex. App.Corpus
Christi 2000, no pet.) (citing Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966)
See Defendant s Answer at p. 103 (the affidavit was not numbered as an exhibit).
Defendant Response at p. 3,
and illogical. As Plaintiff has shown, Defendant did not actually file a proper plea in abatement as
required under § 542A. § 542A. Because of Defendant s deficient pleading, Plaintiff was
not put on notice of any requirement on its part to file a controverting affidavit. Plaintiff was not
required to file such affidavit at all. Moreover, Defendant s argument that th case is automatically
abated is simply nonsensical. Defendant cannot in good faith argue that it truly believed the case
was abated all along when it filed numerous motions with the Court compelled Plaintiff to engage
in timely and costly motion practice, and wasted the Court s time considering and ruling on
these motions Further, the Curt neither entered an Order Administratively Closi the Case, n
did Defendant bother to request such an order. Instead, Defendant remained silent allowed the
case to remain pending on the Court s docket while it continued to file motion after motion all the
while hiding behind an absurd defense of automatic abatement in reliance on its faulty plea in
abatement” Clearly, the case was not abated , and for good reason.
The e is no defense or justifiable excuse for Defendant s outright refusal to respond to
discovery.
e issues here are very si mple. Defendant, a party to this case, was required to produce its
mandatory disclosures under 194.2 but simply refused to do so. Even when Plaintiff
conferred with Defendant and explained, on numerous occasions the reasons why Defendant must
comply, Defendant continued to stand on its position that i ubject to the requirements under
the Texas Rules of Civil Procedure. Defendant has not presented valid arguments whatsoever
excusing its failure to comply ith
Moreover, since the filing of Plaintiff Motion to Compel, Plaintiff properly served
requests for production and requests for interrogatories to Defendant. After not re ving
Defendant s responses y the thirtieth day after service, prsuant to 193.7, Plaintiff
reached out to Defendant only to receive the same sponse that Defendant was not required to
comply with the Texas Rules of Civil Procedure There are no exceptions or excuses Defendant can
rely on as a defense for its blatant refusal to comply with the Texas Rules of Civil Procedure.
193.6(a) excludes evidence automatically if not timely disclosed unless the
violating party presents evidence of “good cause” for the failure to disclose or for a late disclosure
or to show that Plaintiff is not prejudiced or unduly surprised as a result of the non disclosure, a
burden which Defendant evidently cannot meet. “The salutary purpose of [this rule] is to require
complete responses to discovery so as to promote responsible assessment of settlement and prevent
trial by ambush.”
To avoid the effects of this Rule, the burden is on Defendant to present to this Court evidence
showing its “good cause” for noncompliance or that the failure to timely make required disclosures
will not prejudice or unduly surprise Plaintiff. Defendant has failed t provide reason or
excuse amounting anything close to good cause Defendant has not even tried. As such, there
ust be anautoma exclusion of Defendant s evidenceat trial.
It is Defendant’s burden to show either “good cause” for its failure to disclose and provide
evidence in support to provide evidence that its failure to provide mandatory disclosures will
not unfairly surprise or prejudice the other parties. Defendant s clearly failed to meet its burden
and continues to refuse to engage in discover Accordingly, Plaintiff respectfully requests the
Court grant Plaintiff’s Motion to Compel and to Order the exclusion of any materials or information
listed in TRCP 194.2 at the time of trial.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Kyle J. McPike respectfully
See Fort Brown Villas III Condo Ass’n., Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2000) (“[u]nder rule 193.6,
discovery that is not timely disclosed is inadmissible as evidence, Tex. R. Civ. P. 193.6(a)”); Didur Jones v. Family
Dollar, Inc., 2009 WL 3937477, at * 3 (Tex. App.Ft. Worth Nov. 19, 2009).
Alvarado v. Farah Manufacturing Co., Inc. 830 S.W.2d 911, 914 (Tex. 1992) (applying former Rule 215(5),
predecessor to Rule 193.6).
See IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191 202 (Tex. App.Fort Worth 2005, no pet.).
See TRCP 193.6(a)(1)(2).
moves the Court to grant Plaintiff’s Motion to Compel Required Disclosures and to exclude
Defendant’s evidence and to grant Plaintiff such other relief to which Plaintiff may show himself
justly entitled either at law or in equity.
Respectfully submitted,
REEN LEIN OOD
By: /s/ Delaram Falsafi
DELARAM FALSAFI
State Bar No.: 24113083
falsafi@greentriallaw.com
HUNTER M. KLEIN
State Bar No.: 24082117
klein@greentriallaw.com
ROBERT D. GREEN
State Bar No.: 08368025
green@greentriallaw.com
408 East 7th Street
Houston, Texas 77007
(713) 654-9222 - Telephone
(713) 654-2155 - Fax
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished by electronic
mail to all counsel of record on this day of
/s/ Delaram Falsafi
Delaram Falsafi
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CAUSE NO. 2021-70308 KYLE J. MCPIKE, § IN THE DISTRICT COURT OF Plaintiff, § HARRIS COUNTY, TEXAS HOMEOWNERS OF AMERICA § INSURANCE COMPANY, Defendant. § 215 JUDICIAL DISTRICT PLAINTIFF’S REPLY TO DEFENDANT S RESPONSE TO PLAINTIFF MOTION TO COMPEL REQUIREDDISCLOSURES COMES NOW Kyle J. McPike “Plaintiff” and/or “McPike”) and files this Reply to Defendant’s Response to Plaintiff’Motion to Compel Required Disclosures ( Reply”) and would respectfully show this Honorable Court as follows: Defendant starts off its Response to Plaintiff s Motion to Compel Required Disclosures (“Response” mischaracterizing the facts leading up to Defendant’s failure to comply with the Texas Rules of Civil Procedure. Defendant s Response lacks any valid defense or justifiable excuse foits failure to provide the required disclosures under fendant attempts to argue that it is entirely excused from complying with the Texas Rules of Civil Procedure because this suit somehow is, or should be, abated Clearly this case is not abated, and Defendant has no grounds for requesting abatement. Even if it did, Defendant cannot simply refuse to respond to discovery pending a Court Order. Defendant has steadfastly relied on is blatantly incorrect and frivolous argument as a means of escaping its duties under the law. Defendant is a party to the lawsuit and is required to litigate and engage in discovery. Defendant has simply refused to do so. None of Defendant’s arguments in its Response provide any sort of excuse for its pla nd s mple refusal respond to discovery in complian with the Texas Rules of Civil Procedure praisal is irrelevant to the issues in Plaintiff s Motion to Compel. oreover, appraisal is not applicable this case. efendant s frivolous argument that pre suit appraisal is required is completely irrelevant to the issues in Plaintiff otion to Compel Defendant s Required Disclosures Moreover, it gument is incorrect. As explained to Defendant numerous times, the appraisal provision in the licy does not apply to this case. The appraisal provision only applies in cases where there is a disagreement as to the amount of loss. There is no evidence of any sort of disagreement of the amount of loss, and Defendant has failed to provide any evidence of this despite it being a required condition pr ent to appraisal under the Policy This case involves a coverage issue. Defendant agrees that the damages from the loss exceed , but because of its improper reliance on the Policy Limited Water Damage dorsement, Defendant has refused to pay more than the Endorsement s $10,000 sublimit. Moreover, Defendant has refused to disclose what its determination on the amount of loss is Defendant s statement that it has found the damages to be in cess f $10,000, without actually disclosing what the full amount is, is not evidence of a disagreement. Plaintiff cannot truthfully and honestly claim that it disagrees with a number it does not even know. If anything, it could very well be possible that Defendant s valuation of thelos s is consistent with Plaintiff resulting in disagreement as to amount of loss at all However, even if this s the case, he coverage issue would still remain unresolved. Plaintiff has put Defendant on notice of the coverage issues numerous times. In fact, Exhibit 1: Policy excerpts at p. Exhibit 2: Defendant Letter at p. 2. Defendant has agreed on numerous occasions that this case does indeed rest on a coverage issue. Despite its knowledge of the coverage issue in this case, and despite being unable to come forth with evidence as to a disagreement on the amount of loss in order to satisfy the condition precedent for appraisal, Defendant continues to assert that appraisal was mandatory. Moreover, Defendant now attempts to argue that, because of this, it is not required to respond to required discovery under Not only is appraisal not required as Defendant cannot show any evidence of a disagreement as to the amount of loss in order to trigger the appraisal requirement appraisal would not resolve the coverage issue in this case For example, if the Parties’ appraisers agree that the loss exceeds $10,000, whether that amount be $1,000,000 or $10,001, Defendant will inevitably refuse further payment on the basis that it owes no additional money under the Policy due to its reliance on the Limited Water Damage Endorsement limiting its exposure to only $10,000. Because appraisers are not allowed to consider coverage issues , and because the damages evidently exceed $10,000, as admitted by Defendant , any appraisal award will inevitably lea back tothe coverage issueand put the Parties in the exact same position prior to appraisal. This case is not abated, and Defendant did not comply with Tex. Ins. Code § 542A in its attempt to abate this case. Defendant’s statement that HOAIC filed with its answer a verified plea in abatement, alleging Plaintiff’s pre suit notice did not comply with ODE § 542A.003 is entirely incorrect. See Exhibit A to Defendant s Response at p. 3; see also Defendant s Original Answer filed November 29, 2021 at p. ¶ 16 and . “Appraisers [are] not to construe the policy or decide whether the insurer should pay.” State Farm Lloyds v. Johnson, 290 S.W.3d 886, 892 (Tex. 2009) Exhibit 2 at p. 2. Defendant s Response at p. 1, ¶ 2. Defendant’s alleged verified plea in abatement included as part of its Original Answer, is not complaint with the requirements under ODE § 542A.00 The party seeking abatement has the burden of proof to establish the allegations in its motion.” Defendant’s Answer evidently fails to provide proper “plea” or explanation as to why or how it was not provided with the mandatory pre suit notice Defendant’s “plea” fails to include any specific information supporting its allegations. It is unclear what quirement under ODE § 542A.00 Defendant is claiming is deficient and further fails to provide any explanation as to why. Defendant has simply failed to establish its allegations of a deficient pre suit notice. Additionally Defendant affidavit in support of its “verified” plea is also grossly deficient Its affidavit, which is not even referenced in its “plea at all, fails to include any explanation in support of its allegation that Plaintiff’s pre suit notice is not compliant under ODE 542A. n fact, the affidavit is entirely silent as to any reference or mention of ODE § 542A.. Instead of citing to the statute it relies on, Defendant cites to completely different and elevant statutes in support of its allegations that have no bearing on ODE § 542A.003 or § 542A. 5 at all. Defendant has failed to meet its requirement under ODE § 542A. producing an affidavit that neither references nor explains anything in support of its allegations of a deficient pre suit notice. Accordingly, Defe ’s affidavit is entirely deficient and fails to support its arguments for abatement under 542A.00 astly, Defendant s statement that because Plaintiff did not file a controverting affidavit to HOAIC’s verified plea in abatement, the matter is automatically abated by plain law is incorrect In re Vanblarcum, No. 13 00056 CV, 2015 WL 1869415, at *1 (Tex. App.Corpus Christi Apr. 22, 201 5, pet. denied) (mem. op.) (citing cases); Southern Cty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 69 (Tex. App.Corpus Christi 2000, no pet.) (citing Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966) See Defendant s Answer at p. 103 (the affidavit was not numbered as an exhibit). Defendant Response at p. 3, and illogical. As Plaintiff has shown, Defendant did not actually file a proper plea in abatement as required under § 542A. § 542A. Because of Defendant s deficient pleading, Plaintiff was not put on notice of any requirement on its part to file a controverting affidavit. Plaintiff was not required to file such affidavit at all. Moreover, Defendant s argument that th case is automatically abated is simply nonsensical. Defendant cannot in good faith argue that it truly believed the case was abated all along when it filed numerous motions with the Court compelled Plaintiff to engage in timely and costly motion practice, and wasted the Court s time considering and ruling on these motions Further, the Curt neither entered an Order Administratively Closi the Case, n did Defendant bother to request such an order. Instead, Defendant remained silent allowed the case to remain pending on the Court s docket while it continued to file motion after motion all the while hiding behind an absurd defense of automatic abatement in reliance on its faulty plea in abatement” Clearly, the case was not abated , and for good reason. The e is no defense or justifiable excuse for Defendant s outright refusal to respond to discovery. e issues here are very si mple. Defendant, a party to this case, was required to produce its mandatory disclosures under 194.2 but simply refused to do so. Even when Plaintiff conferred with Defendant and explained, on numerous occasions the reasons why Defendant must comply, Defendant continued to stand on its position that i ubject to the requirements under the Texas Rules of Civil Procedure. Defendant has not presented valid arguments whatsoever excusing its failure to comply ith Moreover, since the filing of Plaintiff Motion to Compel, Plaintiff properly served requests for production and requests for interrogatories to Defendant. After not re ving Defendant s responses y the thirtieth day after service, prsuant to 193.7, Plaintiff reached out to Defendant only to receive the same sponse that Defendant was not required to comply with the Texas Rules of Civil Procedure There are no exceptions or excuses Defendant can rely on as a defense for its blatant refusal to comply with the Texas Rules of Civil Procedure. 193.6(a) excludes evidence automatically if not timely disclosed unless the violating party presents evidence of “good cause” for the failure to disclose or for a late disclosure or to show that Plaintiff is not prejudiced or unduly surprised as a result of the non disclosure, a burden which Defendant evidently cannot meet. “The salutary purpose of [this rule] is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush.” To avoid the effects of this Rule, the burden is on Defendant to present to this Court evidence showing its “good cause” for noncompliance or that the failure to timely make required disclosures will not prejudice or unduly surprise Plaintiff. Defendant has failed t provide reason or excuse amounting anything close to good cause Defendant has not even tried. As such, there ust be anautoma exclusion of Defendant s evidenceat trial. It is Defendant’s burden to show either “good cause” for its failure to disclose and provide evidence in support to provide evidence that its failure to provide mandatory disclosures will not unfairly surprise or prejudice the other parties. Defendant s clearly failed to meet its burden and continues to refuse to engage in discover Accordingly, Plaintiff respectfully requests the Court grant Plaintiff’s Motion to Compel and to Order the exclusion of any materials or information listed in TRCP 194.2 at the time of trial. WHEREFORE, PREMISES CONSIDERED, Plaintiff Kyle J. McPike respectfully See Fort Brown Villas III Condo Ass’n., Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2000) (“[u]nder rule 193.6, discovery that is not timely disclosed is inadmissible as evidence, Tex. R. Civ. P. 193.6(a)”); Didur Jones v. Family Dollar, Inc., 2009 WL 3937477, at * 3 (Tex. App.Ft. Worth Nov. 19, 2009). Alvarado v. Farah Manufacturing Co., Inc. 830 S.W.2d 911, 914 (Tex. 1992) (applying former Rule 215(5), predecessor to Rule 193.6). See IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191 202 (Tex. App.Fort Worth 2005, no pet.). See TRCP 193.6(a)(1)(2). moves the Court to grant Plaintiff’s Motion to Compel Required Disclosures and to exclude Defendant’s evidence and to grant Plaintiff such other relief to which Plaintiff may show himself justly entitled either at law or in equity. Respectfully submitted, REEN LEIN OOD By: /s/ Delaram Falsafi DELARAM FALSAFI State Bar No.: 24113083 falsafi@greentriallaw.com HUNTER M. KLEIN State Bar No.: 24082117 klein@greentriallaw.com ROBERT D. GREEN State Bar No.: 08368025 green@greentriallaw.com 408 East 7th Street Houston, Texas 77007 (713) 654-9222 - Telephone (713) 654-2155 - Fax CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by electronic mail to all counsel of record on this day of /s/ Delaram Falsafi Delaram Falsafi