Preview
FILED
3/7/2024 11:21 AM
2 CIT/ ES FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Gay Lane DEPUTY
DC-24-03691
CAUSE NO. _____________
DANIEL NAIL § IN THE DISTRICT COURT OF
§
V. § DALLAS COUNTY, TEXAS
§
GABRIELLA HALL AND §
STATE FARM COUNTY MUTUAL § 44th
INSURANCE COMPANY OF TEXAS § _______ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THIS COURT:
1. Plaintiff alleges discovery is intended to be conducted under Level 3 of Tex. R. Civ. P.
190.
2. PLAINTIFF DANIEL NAIL (“Nail”) files PLAINTIFF’S ORIGINAL PETITION
complaining of and seeking money damages from DEFENDANT GABRIELLA HALL
(“Hall”) and DEFENDANT STATE FARM COUNTY MUTUAL INSURANCE
COMPANY OF TEXAS (“State Farm”) for personal injuries arising from an automobile
accident which occurred on or about April 8, 2022. Hall negligently drove her vehicle by
changing lanes and side-swiping Plaintiff’s vehicle. State Farm is liable to Plaintiff for
UIM benefits since Hall is either uninsured or underinsured. For cause of action, Plaintiff
would show the following, pleading in the alternative:
I.
PARTIES
3. Plaintiff. Daniel Nail is a natural person and resided in Denton County, Texas at the time
the cause of action that is the basis of the suit accrued. TEX. CIV. PRAC. & REM. CODE
§30.014 numbers are 986 and 574 respectively. Nail is currently domiciled in Texas.
4. Defendant. Gabriella Hall (“Hall”) is a natural person who currently is a non-resident of
the State of Texas. This civil suit grows out of a collision in which Hall was involved while
______________________________________________________________________________
Nail/ Plaintiff’s Original Petition Page 1 of 9
operating a motor vehicle in Texas as defined by TEX. CIV. PRAC. & REM. CODE §
17.061 et. seq. (Vernon 1995) which is incorporated herein by reference. Hall was a
resident of Texas at the time the cause of action accrued but has subsequently moved from
Texas. Therefore, the chairman of the Texas Transportation Commission is an agent for
service of process for Hall in this civil action. Id. Halls is believed to be domiciled in
Missouri.
Request to the Clerk of the above-referenced Court
Request is hereby made that the clerk of the court issue citation in duplicate to “Gabriella
Hall by serving J. Bruce Bugg, Jr., Chairman, Texas Transportation Commission at 125
East 11th Street, Austin, Texas 78701-2483” and return same to the undersigned counsel
so counsel may perfect service pursuant to Tex. R. Civ. P. 106 (a)(1) or (a)(2) or other
lawful means through a person qualified to perfect service upon the Chairman of the Texas
Transportation Commission pursuant to Tex. R. Civ. P. 103 or other lawful means.
Request to the Chairman of the Texas Transportation Commission
Upon receipt of such process, the Chairman of the Texas Transportation Commission is
hereby requested pursuant to TEX. CIV. PRAC. & REM. CODE § 17.063 (Vernon 1985)
to serve Gabriella Hall at 529 Bald Hill Road, Eureka, MO 63025 by immediately mailing
a properly addressed registered or certified letter, return receipt requested, with the postage
prepaid containing (1) a copy of the process and (2) notice that the process has been served
on the Chairman of the Texas Transportation Commission. The Chairman of the Texas
Transportation Commission is requested to fully comply with the dictates of TEX. CIV.
PRAC. & REM. CODE § 17.063 (Vernon 1985) which is incorporated herein by reference.
Thereafter, the Chairman of the Texas Transportation Commission is hereby requested to
issue and return to the undersigned counsel a certificate of service pursuant to TEX. CIV.
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Nail/ Plaintiff’s Original Petition Page 2 of 9
PRAC. & REM. CODE § 17.069 (Vernon 1985). The fee for such request is being tendered
with the service papers upon the Chairman. The District Clerk and Chairman of the Texas
Transportation Commission are requested to comply with TEX. CIV. PRAC. & REM.
CODE § 17.061 et. seq. (Vernon 1995) and all amendments thereto, if any.
5. Defendant. State Farm County Mutual Insurance Company of Texas is a Texas-created
insurance company with its principal place of business located in Richardson, Texas and
whose designated agent for service of process in the State of Texas is Corporation Service
Company. State Farm County Mutual Insurance Company of Texas may be served with
citation and petition at 211 E 78th St., Ste 620, Austin, Texas 78701-3218. Request is
hereby made that the clerk of the court issue citation and return same to the undersigned
counsel so counsel may forward the citation and petition to a person qualified to perfect
service under Tex. R. Civ. P. 103 and perfect service of process upon State Farm County
Mutual Insurance Company of Texas via its agent for service of process Corporation
Service Company pursuant to Tex. R. Civ. P. 106 (a)(1) or (a)(2) at the address provided
or wherever said agent can be found.
II.
SUBJECT MATTER JURISDICTION
6. The amount in controversy and the damages sought in this civil action are within the
jurisdictional limits of this Court. The court is authorized to consider this action pursuant
to the terms of the Texas Constitution and Texas Statutes.
III.
PERSONAL JURISDICTION
7. The court has personal jurisdiction over Nail by virtue of Nail filing this petition with the
clerk of the court. The court has personal jurisdiction over Hall pursuant to proper service
of citation with a copy of this petition and the fact that Hall resided in Texas at the time of
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Nail/ Plaintiff’s Original Petition Page 3 of 9
the accident and thus purposely availed herself of the benefits and protections of Texas law
such that she may reasonably expect to be haled into court in Texas and has appointed the
Chairman of the Texas Transportation of Texas as her agent for service of process pursuant
to TEX. CIV. PRAC. & REM. CODE § 17.061 et. seq. (Vernon 1995) and all amendments
thereto if any. The court has personal jurisdiction over State Farm pursuant to proper
service of citation with a copy of this petition and the fact that State Farm is a Texas entity
created under the laws of Texas with its principal office located in Richardson, Texas. State
Farm is currently domiciled in Texas.
IV.
VENUE
8. Venue is proper in Dallas County, Texas pursuant to TEX. CIV. PRAC. & REM. CODE §
15.002 (a)(1) (Vernon 1995) because Dallas County is the county in which all or a
substantial part of the events or omission giving rise to the claim occurred; to wit: the
accident happened in Dallas County.
V.
FACTUAL BACKGROUND
9. On or about April 8, 2022, Nail was properly operating his vehicle within Love Field
Airport in Dallas, Texas when suddenly and without warning Defendant veered sharply to
her left moving out of her lane, across another lane and drove the front quarter panel of her
vehicle into the right passenger side of Plaintiff’s vehicle. Plaintiff was lawfully occupying
his lane of travel and had the right of way which Defendant did not respect. As a direct
and proximate result of the accident, Nail was violently thrown around in his car. Plaintiff
seeks and demands recovery for all damages alleged and prayed for herein including but
not limited to general damages allowed by law, both incurred in the past and which Plaintiff
will incur in the future based on reasonable probability, and special damages incurred or
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Nail/ Plaintiff’s Original Petition Page 4 of 9
reasonably likely to be incurred in the future.
10. To correct these injuries, Nail underwent extensive medical treatment including without
limitation physical exam, therapy, MRI and epidural steroid injection (ESI).
VI.
CAUSES OF ACTION
A.
NEGLIGENCE – HALL
11. The above paragraphs are incorporated herein by reference as if set forth herein verbatim.
12. On April 8, 2022, Hall was the lawful owner and operator of the vehicle she was driving
at the time of the accident or alternatively she had obtained lawful permission from the
owner of the vehicle to operate the vehicle she was driving at the time of the accident such
that she was a permissive user of the vehicle.
13. Hall owed a duty to Nail to operate the vehicle she was driving in a safe and prudent manner
and to exercise ordinary care in driving her vehicle. The accident was caused by Hall
negligently operating her vehicle.
14. Hall failed to use that degree of care which an ordinary prudent person would have used
under the same or similar circumstances in the following particulars:
A. Hall failed to operate her vehicle in a safe manner.
B. Hall failed to operate her vehicle at a safe speed.
C. Hall failed to timely and properly apply her brakes.
D. Hall failed to keep a proper lookout.
E. Hall failed to honk her horn.
F. Hall failed to yield the right of way.
G. Hall failed to stop in a timely and prudent manner.
H. Hall failed to maintain an assured clear distance between her vehicle and the
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Nail/ Plaintiff’s Original Petition Page 5 of 9
Plaintiff’s vehicle, considering the speed of the vehicles, traffic, and the conditions
of the roadway in violation of Texas Transportation Code § 545.062.
I. Hall was operating her vehicle at a rate of speed which was greater than that would
have been operated by a person of ordinary prudence under the same or similar
circumstances in violation of Texas Transportation Code Section 545.351(a)
J. Hall ran the front quarter panel of her vehicle into the right passenger side of
Defendant’s vehicle.
K. Hall failed to properly adjust her side mirrors to enable her to see and avoid
Plaintiff’s vehicle.
L. Hall made a lane change into Plaintiff’s vehicle without fulfilling her obligation to
only make lane changes when it was safe to do so.
M. Hall was running late, rushing through traffic giving rise to her failure to exercise
ordinary care.
15. The above acts, errors and omissions of Hall constituted negligence and negligence per se.
Such negligence proximately caused the above and foregoing damages to Nail for which
Nail now sues.
B.
BREACH OF CONTRACT – STATE FARM
FAILURE TO PAY UNDERINSURED/UNINSURED
MOTORIST INSURANCE BENEFITS
1.
LEGAL RESPONSIBILITY AND UNDERINSURED/UNINSURED
STATUS OF NEGLIGENT DRIVER HALL
16. The above paragraphs are incorporated herein by reference as if set forth herein verbatim
which establishes the negligence of Hall.
17. At the time of the accident in this case, Hall either had no liability insurance coverage or
did not have enough liability insurance coverage benefits to compensate Plaintiff for all of
his bodily injury damages such that Hall was uninsured or underinsured as such terms are
defined in the policy of insurance that was in force and effect and issued for the benefit of
Plaintiff by State Farm.
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Nail/ Plaintiff’s Original Petition Page 6 of 9
2.
DANIEL NAIL’S CONTRACTUAL RIGHT TO
UNDERINSURED/UNINSURED BENEFITS
18. Before April 8, 2022 and at the time of the Accident in this case, Plaintiff was covered as
an insured motorist by a policy of automobile insurance issued by State Farm County
Mutual Insurance Company of Texas, policy number 514 0014-D10-43 or other numbered
policy ("the Policy"). Under the Policy, Plaintiff was an insured motorist and entitled to
and protected by underinsured/uninsured motorist benefits coverage.
19. Plaintiff has fully complied with all the conditions of the Policy before bringing this suit
and all conditions precedent have been performed or have occurred.
20. As the insurer of Nail under the Policy, State Farm has a duty to pay Nail
underinsured/uninsured motorist benefits but has refused to do so. As a direct and
proximate result of such refusal, State Farm has breached the Policy and is liable to Nail
for such breach. As such refusal by State Farm constitutes a breach of the Policy contract,
Nail is entitled to the recovery of his reasonable and necessary attorney’s fees incurred
pursuant to §38.001 Texas Civil Practice & Remedies Code. All conditions precedent to
the recovery of attorney’s fees have occurred.
3.
DECLARATORY JUDGMENT ACT REMEDIES
21. Plaintiff seeks a declaration from this court that Hall’s negligence proximately caused the
occurrence in question and was either an uninsured or underinsured motorist such that
Plaintiff is entitled to the recovery of UIM benefits under the Policy after giving credit to
State Farm for the amount of Hall’s liability insurance benefits if any and for the recovery
of attorney’s fees under § 37.001 et seq. Texas Declaratory Judgment Act. TEX. CIV.
PRAC. & REM. CODE (Vernon 1985).
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Nail/ Plaintiff’s Original Petition Page 7 of 9
VII.
DAMAGES AND PRAYER FOR RELIEF
22. The above paragraphs are incorporated herein by reference as if fully set forth herein
verbatim.
23. As a proximate and producing result of the foregoing unlawful actions of Hall and State
Farm, Nail demands and prays that Hall and State Farm be cited to appear and answer
herein and that after a lawful trial that the court award (via judgment) both special and
general monetary damages to Nail and against Hall and State Farm in the following
particulars:
A. Reasonable and necessary costs of medical care and treatment including but not
limited to doctors, hospital, nurses, medicine, and other services and supplies which
this Plaintiff has incurred in the past as a result of the injuries sued for herein and
in all reasonable probability this Plaintiff will incur in the future; to wit: $75,000 or
such other amount that the jury deems fair and just not to exceed said amount.
B. Physical pain and mental anguish suffered in the past and in all reasonable
probability will be suffered in the future; to wit: $150,000 or such other amount
that the jury deems fair and just not to exceed said amount.
C. Physical impairment and/or disfigurement suffered in the past and in all reasonable
probability will be suffered in the future; to wit: $150,000 or such other amount
that the jury deems fair and just not to exceed said amount.
D. Reasonable and necessary attorney fees; to wit: 50% of the liability and UIM
benefits recoverable or such other amount that the jury deems fair and just not to
exceed said amount.
E. Costs of court.
F. Pre and post judgment interest as allowed by law.
G. Pursuant to Tex. R. Civ. P. 47(c)(4) Plaintiff seeks and demands judgment for
monetary relief over $250,000 but not more than $1,000,000.
VIII.
NOTICE OF INTENT
24. Notice is hereby given of intent to utilize items produced in discovery in the trial of this
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Nail/ Plaintiff’s Original Petition Page 8 of 9
matter and the authenticity of those produced items is self-proven pursuant to Tex. R. Civ.
P. 193.7. The time for objecting begins to run after the documents are produced in the
case.
IX.
JURY DEMAND
25. PLAINTIFF DANIEL NAIL prays this civil action be tried by a jury on all issues, claims,
and demands presented herein, and that this case be placed upon this court’s jury docket.
The required fee is being tendered with this jury demand.
Respectfully submitted,
Stewart J. Guss, Attorney at Law
/s/ Scot G. Dollinger
Scot G. Dollinger–Attorney in Charge Tex.
R. Civ. P. 8
TBN: 05961300
Jason J. Ruen
TBN: 24072316
Priscilla Garcia
TBN: 24132412
12777 Jones Road, Suite 297
Houston, Texas 77070
(281) 664-6500
(281) 664-6501 Facsimile
General Correspondence Email:
scot.dollinger@attorneyguss.com
priscilla.garcia@attorneyguss.com
jason@attorneyguss.com
E-Service: SJG-Service@attorneyguss.com
*E-Service is only accepted at the above
designated E-Service email address.
ATTORNEYS FOR PLAINTIFF
______________________________________________________________________________
Nail/ Plaintiff’s Original Petition Page 9 of 9
Preview
FILED 3/7/2024 11:21 AM 2 CIT/ ES FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Gay Lane DEPUTY DC-24-03691 CAUSE NO. _____________ DANIEL NAIL § IN THE DISTRICT COURT OF § V. § DALLAS COUNTY, TEXAS § GABRIELLA HALL AND § STATE FARM COUNTY MUTUAL § 44th INSURANCE COMPANY OF TEXAS § _______ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF THIS COURT: 1. Plaintiff alleges discovery is intended to be conducted under Level 3 of Tex. R. Civ. P. 190. 2. PLAINTIFF DANIEL NAIL (“Nail”) files PLAINTIFF’S ORIGINAL PETITION complaining of and seeking money damages from DEFENDANT GABRIELLA HALL (“Hall”) and DEFENDANT STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS (“State Farm”) for personal injuries arising from an automobile accident which occurred on or about April 8, 2022. Hall negligently drove her vehicle by changing lanes and side-swiping Plaintiff’s vehicle. State Farm is liable to Plaintiff for UIM benefits since Hall is either uninsured or underinsured. For cause of action, Plaintiff would show the following, pleading in the alternative: I. PARTIES 3. Plaintiff. Daniel Nail is a natural person and resided in Denton County, Texas at the time the cause of action that is the basis of the suit accrued. TEX. CIV. PRAC. & REM. CODE §30.014 numbers are 986 and 574 respectively. Nail is currently domiciled in Texas. 4. Defendant. Gabriella Hall (“Hall”) is a natural person who currently is a non-resident of the State of Texas. This civil suit grows out of a collision in which Hall was involved while ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 1 of 9 operating a motor vehicle in Texas as defined by TEX. CIV. PRAC. & REM. CODE § 17.061 et. seq. (Vernon 1995) which is incorporated herein by reference. Hall was a resident of Texas at the time the cause of action accrued but has subsequently moved from Texas. Therefore, the chairman of the Texas Transportation Commission is an agent for service of process for Hall in this civil action. Id. Halls is believed to be domiciled in Missouri. Request to the Clerk of the above-referenced Court Request is hereby made that the clerk of the court issue citation in duplicate to “Gabriella Hall by serving J. Bruce Bugg, Jr., Chairman, Texas Transportation Commission at 125 East 11th Street, Austin, Texas 78701-2483” and return same to the undersigned counsel so counsel may perfect service pursuant to Tex. R. Civ. P. 106 (a)(1) or (a)(2) or other lawful means through a person qualified to perfect service upon the Chairman of the Texas Transportation Commission pursuant to Tex. R. Civ. P. 103 or other lawful means. Request to the Chairman of the Texas Transportation Commission Upon receipt of such process, the Chairman of the Texas Transportation Commission is hereby requested pursuant to TEX. CIV. PRAC. & REM. CODE § 17.063 (Vernon 1985) to serve Gabriella Hall at 529 Bald Hill Road, Eureka, MO 63025 by immediately mailing a properly addressed registered or certified letter, return receipt requested, with the postage prepaid containing (1) a copy of the process and (2) notice that the process has been served on the Chairman of the Texas Transportation Commission. The Chairman of the Texas Transportation Commission is requested to fully comply with the dictates of TEX. CIV. PRAC. & REM. CODE § 17.063 (Vernon 1985) which is incorporated herein by reference. Thereafter, the Chairman of the Texas Transportation Commission is hereby requested to issue and return to the undersigned counsel a certificate of service pursuant to TEX. CIV. ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 2 of 9 PRAC. & REM. CODE § 17.069 (Vernon 1985). The fee for such request is being tendered with the service papers upon the Chairman. The District Clerk and Chairman of the Texas Transportation Commission are requested to comply with TEX. CIV. PRAC. & REM. CODE § 17.061 et. seq. (Vernon 1995) and all amendments thereto, if any. 5. Defendant. State Farm County Mutual Insurance Company of Texas is a Texas-created insurance company with its principal place of business located in Richardson, Texas and whose designated agent for service of process in the State of Texas is Corporation Service Company. State Farm County Mutual Insurance Company of Texas may be served with citation and petition at 211 E 78th St., Ste 620, Austin, Texas 78701-3218. Request is hereby made that the clerk of the court issue citation and return same to the undersigned counsel so counsel may forward the citation and petition to a person qualified to perfect service under Tex. R. Civ. P. 103 and perfect service of process upon State Farm County Mutual Insurance Company of Texas via its agent for service of process Corporation Service Company pursuant to Tex. R. Civ. P. 106 (a)(1) or (a)(2) at the address provided or wherever said agent can be found. II. SUBJECT MATTER JURISDICTION 6. The amount in controversy and the damages sought in this civil action are within the jurisdictional limits of this Court. The court is authorized to consider this action pursuant to the terms of the Texas Constitution and Texas Statutes. III. PERSONAL JURISDICTION 7. The court has personal jurisdiction over Nail by virtue of Nail filing this petition with the clerk of the court. The court has personal jurisdiction over Hall pursuant to proper service of citation with a copy of this petition and the fact that Hall resided in Texas at the time of ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 3 of 9 the accident and thus purposely availed herself of the benefits and protections of Texas law such that she may reasonably expect to be haled into court in Texas and has appointed the Chairman of the Texas Transportation of Texas as her agent for service of process pursuant to TEX. CIV. PRAC. & REM. CODE § 17.061 et. seq. (Vernon 1995) and all amendments thereto if any. The court has personal jurisdiction over State Farm pursuant to proper service of citation with a copy of this petition and the fact that State Farm is a Texas entity created under the laws of Texas with its principal office located in Richardson, Texas. State Farm is currently domiciled in Texas. IV. VENUE 8. Venue is proper in Dallas County, Texas pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002 (a)(1) (Vernon 1995) because Dallas County is the county in which all or a substantial part of the events or omission giving rise to the claim occurred; to wit: the accident happened in Dallas County. V. FACTUAL BACKGROUND 9. On or about April 8, 2022, Nail was properly operating his vehicle within Love Field Airport in Dallas, Texas when suddenly and without warning Defendant veered sharply to her left moving out of her lane, across another lane and drove the front quarter panel of her vehicle into the right passenger side of Plaintiff’s vehicle. Plaintiff was lawfully occupying his lane of travel and had the right of way which Defendant did not respect. As a direct and proximate result of the accident, Nail was violently thrown around in his car. Plaintiff seeks and demands recovery for all damages alleged and prayed for herein including but not limited to general damages allowed by law, both incurred in the past and which Plaintiff will incur in the future based on reasonable probability, and special damages incurred or ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 4 of 9 reasonably likely to be incurred in the future. 10. To correct these injuries, Nail underwent extensive medical treatment including without limitation physical exam, therapy, MRI and epidural steroid injection (ESI). VI. CAUSES OF ACTION A. NEGLIGENCE – HALL 11. The above paragraphs are incorporated herein by reference as if set forth herein verbatim. 12. On April 8, 2022, Hall was the lawful owner and operator of the vehicle she was driving at the time of the accident or alternatively she had obtained lawful permission from the owner of the vehicle to operate the vehicle she was driving at the time of the accident such that she was a permissive user of the vehicle. 13. Hall owed a duty to Nail to operate the vehicle she was driving in a safe and prudent manner and to exercise ordinary care in driving her vehicle. The accident was caused by Hall negligently operating her vehicle. 14. Hall failed to use that degree of care which an ordinary prudent person would have used under the same or similar circumstances in the following particulars: A. Hall failed to operate her vehicle in a safe manner. B. Hall failed to operate her vehicle at a safe speed. C. Hall failed to timely and properly apply her brakes. D. Hall failed to keep a proper lookout. E. Hall failed to honk her horn. F. Hall failed to yield the right of way. G. Hall failed to stop in a timely and prudent manner. H. Hall failed to maintain an assured clear distance between her vehicle and the ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 5 of 9 Plaintiff’s vehicle, considering the speed of the vehicles, traffic, and the conditions of the roadway in violation of Texas Transportation Code § 545.062. I. Hall was operating her vehicle at a rate of speed which was greater than that would have been operated by a person of ordinary prudence under the same or similar circumstances in violation of Texas Transportation Code Section 545.351(a) J. Hall ran the front quarter panel of her vehicle into the right passenger side of Defendant’s vehicle. K. Hall failed to properly adjust her side mirrors to enable her to see and avoid Plaintiff’s vehicle. L. Hall made a lane change into Plaintiff’s vehicle without fulfilling her obligation to only make lane changes when it was safe to do so. M. Hall was running late, rushing through traffic giving rise to her failure to exercise ordinary care. 15. The above acts, errors and omissions of Hall constituted negligence and negligence per se. Such negligence proximately caused the above and foregoing damages to Nail for which Nail now sues. B. BREACH OF CONTRACT – STATE FARM FAILURE TO PAY UNDERINSURED/UNINSURED MOTORIST INSURANCE BENEFITS 1. LEGAL RESPONSIBILITY AND UNDERINSURED/UNINSURED STATUS OF NEGLIGENT DRIVER HALL 16. The above paragraphs are incorporated herein by reference as if set forth herein verbatim which establishes the negligence of Hall. 17. At the time of the accident in this case, Hall either had no liability insurance coverage or did not have enough liability insurance coverage benefits to compensate Plaintiff for all of his bodily injury damages such that Hall was uninsured or underinsured as such terms are defined in the policy of insurance that was in force and effect and issued for the benefit of Plaintiff by State Farm. ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 6 of 9 2. DANIEL NAIL’S CONTRACTUAL RIGHT TO UNDERINSURED/UNINSURED BENEFITS 18. Before April 8, 2022 and at the time of the Accident in this case, Plaintiff was covered as an insured motorist by a policy of automobile insurance issued by State Farm County Mutual Insurance Company of Texas, policy number 514 0014-D10-43 or other numbered policy ("the Policy"). Under the Policy, Plaintiff was an insured motorist and entitled to and protected by underinsured/uninsured motorist benefits coverage. 19. Plaintiff has fully complied with all the conditions of the Policy before bringing this suit and all conditions precedent have been performed or have occurred. 20. As the insurer of Nail under the Policy, State Farm has a duty to pay Nail underinsured/uninsured motorist benefits but has refused to do so. As a direct and proximate result of such refusal, State Farm has breached the Policy and is liable to Nail for such breach. As such refusal by State Farm constitutes a breach of the Policy contract, Nail is entitled to the recovery of his reasonable and necessary attorney’s fees incurred pursuant to §38.001 Texas Civil Practice & Remedies Code. All conditions precedent to the recovery of attorney’s fees have occurred. 3. DECLARATORY JUDGMENT ACT REMEDIES 21. Plaintiff seeks a declaration from this court that Hall’s negligence proximately caused the occurrence in question and was either an uninsured or underinsured motorist such that Plaintiff is entitled to the recovery of UIM benefits under the Policy after giving credit to State Farm for the amount of Hall’s liability insurance benefits if any and for the recovery of attorney’s fees under § 37.001 et seq. Texas Declaratory Judgment Act. TEX. CIV. PRAC. & REM. CODE (Vernon 1985). ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 7 of 9 VII. DAMAGES AND PRAYER FOR RELIEF 22. The above paragraphs are incorporated herein by reference as if fully set forth herein verbatim. 23. As a proximate and producing result of the foregoing unlawful actions of Hall and State Farm, Nail demands and prays that Hall and State Farm be cited to appear and answer herein and that after a lawful trial that the court award (via judgment) both special and general monetary damages to Nail and against Hall and State Farm in the following particulars: A. Reasonable and necessary costs of medical care and treatment including but not limited to doctors, hospital, nurses, medicine, and other services and supplies which this Plaintiff has incurred in the past as a result of the injuries sued for herein and in all reasonable probability this Plaintiff will incur in the future; to wit: $75,000 or such other amount that the jury deems fair and just not to exceed said amount. B. Physical pain and mental anguish suffered in the past and in all reasonable probability will be suffered in the future; to wit: $150,000 or such other amount that the jury deems fair and just not to exceed said amount. C. Physical impairment and/or disfigurement suffered in the past and in all reasonable probability will be suffered in the future; to wit: $150,000 or such other amount that the jury deems fair and just not to exceed said amount. D. Reasonable and necessary attorney fees; to wit: 50% of the liability and UIM benefits recoverable or such other amount that the jury deems fair and just not to exceed said amount. E. Costs of court. F. Pre and post judgment interest as allowed by law. G. Pursuant to Tex. R. Civ. P. 47(c)(4) Plaintiff seeks and demands judgment for monetary relief over $250,000 but not more than $1,000,000. VIII. NOTICE OF INTENT 24. Notice is hereby given of intent to utilize items produced in discovery in the trial of this ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 8 of 9 matter and the authenticity of those produced items is self-proven pursuant to Tex. R. Civ. P. 193.7. The time for objecting begins to run after the documents are produced in the case. IX. JURY DEMAND 25. PLAINTIFF DANIEL NAIL prays this civil action be tried by a jury on all issues, claims, and demands presented herein, and that this case be placed upon this court’s jury docket. The required fee is being tendered with this jury demand. Respectfully submitted, Stewart J. Guss, Attorney at Law /s/ Scot G. Dollinger Scot G. Dollinger–Attorney in Charge Tex. R. Civ. P. 8 TBN: 05961300 Jason J. Ruen TBN: 24072316 Priscilla Garcia TBN: 24132412 12777 Jones Road, Suite 297 Houston, Texas 77070 (281) 664-6500 (281) 664-6501 Facsimile General Correspondence Email: scot.dollinger@attorneyguss.com priscilla.garcia@attorneyguss.com jason@attorneyguss.com E-Service: SJG-Service@attorneyguss.com *E-Service is only accepted at the above designated E-Service email address. ATTORNEYS FOR PLAINTIFF ______________________________________________________________________________ Nail/ Plaintiff’s Original Petition Page 9 of 9