Preview
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
CAUSE NO.____________
JOSE FLORES § IN THE COUNTY COURT
Plaintiff, §
§
vs. § AT LAW NO. ______
§
SURECHOICE UNDERWRITERS §
RECIPROCAL EXCHANGE §
Defendant. § HIDALGO COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, JOSE FLORES (hereinafter referred to as (“PLAINTIFF”), and files his
Original Petition against DEFENDANT, SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE, and would respectfully show the Court the following:
I. Discovery
Pursuant to Rule 47 of the Texas Rules of Civil Procedure, PLAINTIFF seeks damages
of monetary relief of $250,000 or less. PLAINTIFF intends to conduct discovery in accordance
with the applicable rules of the Texas Rules of Civil Procedure.
II. Service of Process
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, may be served with
process by serving citation and a copy of this Original Petition by Certified Mail Return Receipt
Requested on its agent for service at:
Corporation Service Company, 211 E 7th Street, Suite 620, Austin, Texas 78701-3218
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is in the business of
providing insurance in the State of Texas. The insurance business done by SURECHOICE
1
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
UNDERWRITERS RECIPROCAL EXCHANGE in Texas includes, but is not limited to the
following:
1. The making and issuing of contracts of insurance with the PLAINTIFF;
2. The taking or receiving of application for insurance, including the PLAINTIFF’S
application for insurance;
3. The receiving or collection of premiums, commissions, membership fees,
assessments, dues or other consideration for any insurance or any part thereof,
including any such consideration or payments from the PLAINTIFF;
4. The issuance or delivery of contracts of insurance to residents of this state or a
person authorized to do business in this state, including the PLAINTIFF;
5. The adjusting and inspection of PLAINTIFF’S insurance claims;
6. Making insurance coverage decisions;
7. Taking part in making insurance coverage decisions; and
8. Making representations to PLAINTIFF as being an agent for an insurance company
with authority to make coverage decisions;
III. Jurisdiction and Venue
Venue of this action is proper in HIDALGO County, Texas because: the policy at issue
was issued and delivered in HIDALGO County, Texas; the property insured is situated in
HIDALGO County, Texas; PLAINTIFF’S losses occurred in HIDALGO County, Texas, and all
or part of the events made the basis of this lawsuit and giving rise to PLAINTIFF’S claims and
causes of action occurred in HIDALGO County, Texas.
2
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
IV. Facts
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE and/or its agents
committed the actions alleged against PLAINTIFF in this petition. PLAINTIFF owns the
property located at: 3400 Ulex Ave, McAllen, Texas 78504 with Policy # TXC7192047; Claim #
HO-2023-295499466. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE
provided coverage to the PLAINTIFF for such building, personal property, and other matter.
During the term of said policy, PLAINTIFF sustained covered losses in the form of a hail event,
on or about April 28, 2023, in HIDALGO County, and water damages resulting therefrom,
including damage to the architectural finishes of the property. PLAINTIFF promptly reported
losses to SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE pursuant to the terms
of the insurance policy. As a result, PLAINTIFF’S property sustained damage, including the
cost of destruction and restoration of the property necessary to access and fix the damaged areas.
These are covered damages under PLAINTIFF’S insurance policy with SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE. PLAINTIFF has been damaged in an amount
in excess of the minimum jurisdictional limits of this Court, including injuries sustained as a
result of having conduct business during the pendency of SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE'S conduct.
V. Conditions Precedent
All conditions precedent have been waived by the insurance company, have been
performed by Plaintiff, or have otherwise been satisfied. Despite these facts, SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE has failed and refused to pay PLAINTIFF a
just amount in accordance with their contractual obligations, agreements, and representations.
Moreover, Defendant’s claims that Plaintiff did not comply with the contract are barred by
3
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
waiver, based on Defendant’s breach and noncompliance with the material terms of the insurance
contract. Generally, when one party to contract commits material breach, the other party is
discharged or excused from further performance. Mustang Pipeline Co., Inc. v. Driver Pipeline
Co. Inc., 134 S.W.3d 195, 196 (Tex. 2004).
VI. Breach of Contract
PLAINTIFF purchased an insurance policy with SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE. PLAINTIFF’S property was damaged by the hail and water
damage, all of which are covered under the insurance policy. SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE has denied and/or delayed payment of
PLAINTIFF’S covered claims. SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE has no reasonable basis for denying, delaying, or failing to pay PLAINTIFF’S
claims for damages. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE knew or
should have known that there was no such reasonable basis to deny, delay, and fail to pay such
claims. The conduct of SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE was
irresponsible and unconscionable. SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE took advantage of the PLAINTIFF’S lack of sophistication in insurance and
construction matters to a grossly unfair degree. SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE has, by its conduct, breached its contract with the PLAINTIFF.
The conduct of SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has
proximately caused the injuries and damages to the PLAINTIFF.
VII. Second Cause of Action: DTPA Violations
PLAINTIFF is a “consumer” entitled to relief under the Texas Deceptive Trade
Practices—Consumer Protection Act (“DTPA”). By its conduct outlined above, SURECHOICE
4
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
UNDERWRITERS RECIPROCAL EXCHANGE has engaged in the following violations of the
DTPA which, together and separately, have been a producing cause of PLAINTIFF’S damages:
(a) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made false
representations about PLAINTIFF’S rights, remedies, and obligations under the policies
at issue. These statements were a misrepresentation of the insurance policies and their
benefits in violation of §§17.46(b)(5), (7), (12) and (14), Texas Business & Commerce
Code;
(b) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S actions constitute an
unconscionable course of conduct entitling PLAINTIFF to relief under §17.50(a)(1), (2),
(3), and (4) of the Texas Business & Commerce Code;
(c) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to disclose
information to PLAINTIFF concerning the nature and extent of their insurance policy,
which was known by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE
at the time for the purpose of inducing PLAINTIFF into transactions which he would not
have otherwise entered in violation of section 17.46(b)(9) and (23), Texas Business and
Commerce Code;
(d) As described above, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE
violated Chapter 541, Texas Insurance Code, entitling PLAINTIFF to relief under section
17.50(a)(4), Texas Business and Commerce Code.
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE took advantage of
PLAINTIFF’S lack of knowledge in construction and insurance claims processes,
misrepresented losses covered under the insurance policy, and failed to disclose pertinent
information regarding damages to the PLAINTIFF’S property. SURECHOICE
5
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
UNDERWRITERS RECIPROCAL EXCHANGE conduct as described herein was a producing
cause of damages to PLAINTIFF for which PLAINTIFF sues. The conduct of the
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE was more than just a mistake,
and was done “knowingly” and/or “intentionally,” as those terms are derived by statute. Because
of that, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE may be subject to
liability for additional damages under the Texas Deceptive Trade Practices Act. PLAINTIFF
seeks an award of additional damages under the DTPA in an amount not to exceed three times
the amount of economic damages.
VIII. Unfair Insurance Practices
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to inform PLAINTIFF
of material facts, such as the true scope of damage and cost to repair. SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE failed to properly process claims and have
misrepresented material facts to the PLAINTIFF. SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE has failed to address all damage to the property and its contents
causing further damage to the PLAINTIFF. Further, SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE has intentionally failed to fully investigate the loss; failed to
properly convey all information to PLAINTIFF; and has intentionally ignored damages to the
dwelling. PLAINTIFF’S property suffered from covered losses and damages of which
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is fully aware.
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has concealed damage known
by it to exist. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has known
about covered hail and water damages but has failed to perform proper testing and concealed
facts from PLAINTIFF about the damages, ignoring PLAINTIFF’S plea for help.
6
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has failed to warn
PLAINTIFF of consequential damage to their property.
By its conduct outlined above, SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE committed unfair practices in the business of insurance prohibited by Chapter 541,
Texas Insurance Code, and the statutes, rules and regulations incorporated therein.
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE committed the following acts
in violation of Texas Insurance Code and Texas Administrative Code:
(1) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to, with good
faith, effectuate a prompt, fair, and equitable settlement of the PLAINTIFF’S claims once
liability became reasonable clear (Tex. Ins. Code Ann. 541.060(a)(2)(A); Tex. Ins. Code
Ann. 542.003(b)(4); 28 TAC section 21.203(4));
(2) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to provide
promptly to PLAINTIFF a reasonable explanation of the basis in the policy, in relation to
the facts or applicable law, for denial of the claim or for the offer of a compromise
settlement of the claim (Tex. Ins. Code Ann. 541.060(a)(3); 28 TAC section 21.203(9));
(3) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE refused to pay a claim
without conducting a reasonable investigation with respect to that claim (Tex. Ins. Code
Ann. 541.060(a)(7); TAC section 21.203(15));
(4) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE breached its duty of
good faith and fair dealing at common law;
(5) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to adopt and
implement reasonable standards for the prompt investigation of claims arising under the
insurer’s policies (Tex. Ins. Code Ann. 542. 003(b)(3); 28 TAC section 21.203(3));
7
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
(6) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE compelled
PLAINTIFF to institute a suit to recover an amount due under a policy by offering
substantially less than the amount ultimately recovered in a suit brought by the
policyholder (Tex. Ins. Code Ann. 542.003(b)(5); 28 TAC section 21.203(6);
(7) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE violated the Prompt
Payment of Claims Statute (28 TAC section 21.203(18));
(8) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE committed the
following unfair methods of competition or deceptive acts or practices in the business of
insurance in violation of Texas Insurance Code and the Texas Administrative Code by:
(a) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made, issued
or circulated or caused to be made, issued or circulated an estimate, illustration,
circular or statement misrepresenting with respect to the policy issued or to be
issued:
(i) the terms of the policy; and/or
(ii) the benefits or advantages promised by the policy.
(b) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made an untrue
statement of material fact (Tex. Ins. Code Ann. 541.060(a)(1); 28 TAC section
21.203(1));
(c) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to state a
material fact necessary to make other statements made not misleading,
considering the circumstances under which statements were made; and
8
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
(d) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made
statements in a manner that would mislead a reasonably prudent person to a false
conclusion of material fact.
(e) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE refused to
make a settlement offer under applicable first-party coverage on the basis that
other coverage may be available or that third parties are responsible for the
damages suffered, except as may be specifically provided in the policy (Tex. Ins.
Code Ann 541.060(a)(5); 28 TAC section 21.203(11);
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S conduct as described herein
was a producing cause of damages to PLAINTIFF, for which he now sues.
IX. Breach of the Duty of Good Faith and Fair Dealing
From and after the time the PLAINTIFF’S claims were presented to SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE, liability to pay the claims in accordance with
the terms of insurance policies referenced above has been reasonably clear. Despite there being
no basis whatsoever on which a reasonable insurance company would have relied to deny and/or
delay payment for PLAINTIFF’S claims, SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE refused to accept the claims in totality and pay the PLAINTIFF as the policy
required. At that time, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE knew
or should have known by the exercise of reasonable diligence that their liability was reasonably
clear. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to conduct a
reasonable and proper inspection of the claims and refused to rely on the true facts, resorting
instead to producing faulty, incomplete, and biased reasons to avoid paying a valid claim. This
constitutes failing to handle or process the PLAINTIFF’S claims in good faith, an affirmative
9
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
duty placed on SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, as expressly
stated by the Texas Supreme Court in Vail v. Texas Farm Bureau, 754 S.W.2d 129 at 135 (Tex.
1988). Through the actions described above, SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE breached its duty to deal fairly and in good faith with the PLAINTIFF.
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S breach was a proximate
cause of the losses, expenses and damages suffered by the PLAINTIFF, for which he sues.
X. Texas Insurance Code 542, Subchapter B Delay in Payment
PLAINTIFF gave prompt notice of their claims to SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE. SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE has engaged in unfair settlement claims practices, as discussed above and denied
and/or has delayed payment on PLAINTIFF’S claim. SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE’S reliance on reports and estimates from its adjusters and
investigating adjusters has been “merely pretextual” and unreasonable. SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE’S investigation and use of adjusters’ reports
was an “outcome-oriented” investigation. SURECHOICE UNDERWRITERS RECIPROCAL
EXCHANGE failed to comply with the requirements of Chapter 542 listed herein:
(a) Failing to pay PLAINTIFF’S claim within 60 days of receiving all of the items,
statements, and forms required by the insurer to secure final proof of loss, of the
acceptance or rejection of a claim; and
(b) Failing to request all of the items, statements and forms the SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE reasonably believed at the time
would be required from PLAINTIFF to pay the claim within 15 days after
receiving notice of the claim.
10
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
Pursuant to Texas Insurance Code Chapter 542, Subchapter B, PLAINTIFF is entitled to
recover from SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE the statutory
penalty of 5% plus the interest rate determined under Section 304.003, Finance Code, on all
amounts due on PLAINTIFF’S claims, together with attorney’s fees, for which he sues.
XI.
PLAINTIFF alleges that as to any terms, conditions, notices, or requests under the
insurance contract, PLAINTIFF has substantially complied and/or is excused. In the alternative,
PLAINTIFF makes the allegation of waiver and/or estoppel as to every defense or exclusion
plead by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE as to any exclusion,
condition, or defense pled by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE,
PLAINTIFF would show that:
1. The clear and unambiguous language of the policy provides coverage for dwelling
damage caused by hail and water damage, including the cost of access to fix the
damaged areas. Any other construction of the language of the policy is void as
against public policy;
2. Any other construction and its use by SURECHOICE UNDERWRITERS
RECIPROCAL EXCHANGE violates section 541 and 542 of the Texas Insurance
Code and are void as against public policy;
3. Any other construction violates Art. 17.50 of the Texas Business and Commerce
Code, is unconscionable, was procured by fraudulent inducement, and is void as
against public policy;
4. Any other construction is otherwise void as against public policy, illegal, and
violates state law and administrative rule and regulation;
11
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
5. The adoption of any other construction constitutes wrongful or bad faith
cancellation and/or refusal to renew a portion of PLAINTIFF’S predecessor
policy with SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE. In
this regard, PLAINTIFF would show that his insurance policy was renewed
uninterruptedly for many years; and
6. The adoption of any other construction constitutes conduct in violation of the laws
of this state, including section 541 and 542 of Texas Insurance Code is void as
against public policy.
If this Court finds any ambiguity in the policy, the rules of construction of such policies
mandate the construction and interpretation urged by PLAINTIFF. In the alternative,
SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is judicially, administratively,
or equitably estopped from denying PLAINTIFF’S construction of the policy coverage at issue.
To the extent that the wording of such policy does not reflect the true intent of all parties thereto,
PLAINTIFF pleads the doctrine of mutual mistake, thus requiring reformation.
XII. Exemplary Damages
Plaintiff would further show that the acts and omissions of Defendant and its agents,
adjusters, employees and/or representatives complained of herein were committed knowingly,
willfully, intentionally, with actual awareness, and with the specific and predetermined intention
of enriching said Defendant at the expense of the Plaintiff. In order to punish said Defendant for
such unconscionable overreaching and to deter such actions and/or omissions in the future,
Plaintiff requests exemplary damages pursuant to 17.50(b)(1) of the Texas Business and
Commerce Code and § 541.152(b) of the Tex. Ins. Code.
12
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
XIII.
WHEREFORE, PREMISES CONSIDERED, PLAINTIFF respectfully requests this
Honorable Court for the following relief: That upon final hearing and trial hereof, this Honorable
Court grant to the PLAINTIFF such relief as to which he may show himself justly entitled, either
at law or in equity; either general or special, including declaratory judgment, judgment against
the SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE for actual attorney’s fees,
cost of suit, mental anguish, DTPA violations, Texas insurance code violations, statutory
penalties, and pre-judgment and post-judgment interest, including judgment for additional
damages and punitive damage under the facts set forth in this or any amended pleading in
exceeding the minimal jurisdictional limits of the court.
XIV. Jury Demand
PLAINTIFF requests that this Court empanel a jury to sit in the trial of this matter. The
requisite jury fee will be paid as required by law.
XV. Required Disclosures
Under Texas Rule of Civil Procedure 194, PLAINTIFF requests that SURECHOICE
UNDERWRITERS RECIPROCAL EXCHANGE disclose, within 30 days of filings its answer,
the information or material described in Texas Rule of Civil Procedure 194.
Respectfully submitted,
/s/ Omar Ochoa
Omar Ochoa
Tex. Bar No. 24079813
OMAR OCHOA LAW FIRM PC
121 N. 10th Street
McAllen, Texas 78501
Tel: (956) 630-3266
oochoa@omarochoalaw.com
13
Electronically Submitted
3/11/2024 12:00 AM
Hidalgo County Clerk
Accepted by: Nancy Flores
CL-24-1136-B
/s/ Victor Rodriguez Jr.
Victor Rodriguez Jr.
Tex. Bar No. 24041809
VICTOR RODRIGUEZ LAW FIRM PLLC
121 N. 10th Street
McAllen, Texas 78501
Tel: (956) 630-3266
victor@vrodriguezlaw.com
ATTORNEYS FOR PLAINTIFF
14
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.
Robert Ramos on behalf of Omar Ochoa
Bar No. 24079813
rramos@omarochoalaw.com
Envelope ID: 85391796
Filing Code Description: Petition
Filing Description:
Status as of 3/11/2024 8:20 AM CST
Associated Case Party: JoseFlores
Name BarNumber Email TimestampSubmitted Status
Sabrina Vela svela@omarochoalaw.com 3/10/2024 5:20:39 PM SENT
Alexis Saenz asaenz@omarochoalaw.com 3/10/2024 5:20:39 PM SENT
Renee Rosillo rrosillo@omarochoalaw.com 3/10/2024 5:20:39 PM SENT
Victor Rodriguez Victor@vrodriguezlaw.com 3/10/2024 5:20:39 PM SENT
Robert Ramos rramos@omarochoalaw.com 3/10/2024 5:20:39 PM SENT
Omar Ochoa oochoa@omarochoalaw.com 3/10/2024 5:20:39 PM SENT
Preview
Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B CAUSE NO.____________ JOSE FLORES § IN THE COUNTY COURT Plaintiff, § § vs. § AT LAW NO. ______ § SURECHOICE UNDERWRITERS § RECIPROCAL EXCHANGE § Defendant. § HIDALGO COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, JOSE FLORES (hereinafter referred to as (“PLAINTIFF”), and files his Original Petition against DEFENDANT, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, and would respectfully show the Court the following: I. Discovery Pursuant to Rule 47 of the Texas Rules of Civil Procedure, PLAINTIFF seeks damages of monetary relief of $250,000 or less. PLAINTIFF intends to conduct discovery in accordance with the applicable rules of the Texas Rules of Civil Procedure. II. Service of Process SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, may be served with process by serving citation and a copy of this Original Petition by Certified Mail Return Receipt Requested on its agent for service at: Corporation Service Company, 211 E 7th Street, Suite 620, Austin, Texas 78701-3218 SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is in the business of providing insurance in the State of Texas. The insurance business done by SURECHOICE 1 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B UNDERWRITERS RECIPROCAL EXCHANGE in Texas includes, but is not limited to the following: 1. The making and issuing of contracts of insurance with the PLAINTIFF; 2. The taking or receiving of application for insurance, including the PLAINTIFF’S application for insurance; 3. The receiving or collection of premiums, commissions, membership fees, assessments, dues or other consideration for any insurance or any part thereof, including any such consideration or payments from the PLAINTIFF; 4. The issuance or delivery of contracts of insurance to residents of this state or a person authorized to do business in this state, including the PLAINTIFF; 5. The adjusting and inspection of PLAINTIFF’S insurance claims; 6. Making insurance coverage decisions; 7. Taking part in making insurance coverage decisions; and 8. Making representations to PLAINTIFF as being an agent for an insurance company with authority to make coverage decisions; III. Jurisdiction and Venue Venue of this action is proper in HIDALGO County, Texas because: the policy at issue was issued and delivered in HIDALGO County, Texas; the property insured is situated in HIDALGO County, Texas; PLAINTIFF’S losses occurred in HIDALGO County, Texas, and all or part of the events made the basis of this lawsuit and giving rise to PLAINTIFF’S claims and causes of action occurred in HIDALGO County, Texas. 2 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B IV. Facts SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE and/or its agents committed the actions alleged against PLAINTIFF in this petition. PLAINTIFF owns the property located at: 3400 Ulex Ave, McAllen, Texas 78504 with Policy # TXC7192047; Claim # HO-2023-295499466. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE provided coverage to the PLAINTIFF for such building, personal property, and other matter. During the term of said policy, PLAINTIFF sustained covered losses in the form of a hail event, on or about April 28, 2023, in HIDALGO County, and water damages resulting therefrom, including damage to the architectural finishes of the property. PLAINTIFF promptly reported losses to SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE pursuant to the terms of the insurance policy. As a result, PLAINTIFF’S property sustained damage, including the cost of destruction and restoration of the property necessary to access and fix the damaged areas. These are covered damages under PLAINTIFF’S insurance policy with SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE. PLAINTIFF has been damaged in an amount in excess of the minimum jurisdictional limits of this Court, including injuries sustained as a result of having conduct business during the pendency of SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE'S conduct. V. Conditions Precedent All conditions precedent have been waived by the insurance company, have been performed by Plaintiff, or have otherwise been satisfied. Despite these facts, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has failed and refused to pay PLAINTIFF a just amount in accordance with their contractual obligations, agreements, and representations. Moreover, Defendant’s claims that Plaintiff did not comply with the contract are barred by 3 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B waiver, based on Defendant’s breach and noncompliance with the material terms of the insurance contract. Generally, when one party to contract commits material breach, the other party is discharged or excused from further performance. Mustang Pipeline Co., Inc. v. Driver Pipeline Co. Inc., 134 S.W.3d 195, 196 (Tex. 2004). VI. Breach of Contract PLAINTIFF purchased an insurance policy with SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE. PLAINTIFF’S property was damaged by the hail and water damage, all of which are covered under the insurance policy. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has denied and/or delayed payment of PLAINTIFF’S covered claims. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has no reasonable basis for denying, delaying, or failing to pay PLAINTIFF’S claims for damages. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE knew or should have known that there was no such reasonable basis to deny, delay, and fail to pay such claims. The conduct of SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE was irresponsible and unconscionable. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE took advantage of the PLAINTIFF’S lack of sophistication in insurance and construction matters to a grossly unfair degree. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has, by its conduct, breached its contract with the PLAINTIFF. The conduct of SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has proximately caused the injuries and damages to the PLAINTIFF. VII. Second Cause of Action: DTPA Violations PLAINTIFF is a “consumer” entitled to relief under the Texas Deceptive Trade Practices—Consumer Protection Act (“DTPA”). By its conduct outlined above, SURECHOICE 4 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B UNDERWRITERS RECIPROCAL EXCHANGE has engaged in the following violations of the DTPA which, together and separately, have been a producing cause of PLAINTIFF’S damages: (a) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made false representations about PLAINTIFF’S rights, remedies, and obligations under the policies at issue. These statements were a misrepresentation of the insurance policies and their benefits in violation of §§17.46(b)(5), (7), (12) and (14), Texas Business & Commerce Code; (b) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S actions constitute an unconscionable course of conduct entitling PLAINTIFF to relief under §17.50(a)(1), (2), (3), and (4) of the Texas Business & Commerce Code; (c) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to disclose information to PLAINTIFF concerning the nature and extent of their insurance policy, which was known by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE at the time for the purpose of inducing PLAINTIFF into transactions which he would not have otherwise entered in violation of section 17.46(b)(9) and (23), Texas Business and Commerce Code; (d) As described above, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE violated Chapter 541, Texas Insurance Code, entitling PLAINTIFF to relief under section 17.50(a)(4), Texas Business and Commerce Code. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE took advantage of PLAINTIFF’S lack of knowledge in construction and insurance claims processes, misrepresented losses covered under the insurance policy, and failed to disclose pertinent information regarding damages to the PLAINTIFF’S property. SURECHOICE 5 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B UNDERWRITERS RECIPROCAL EXCHANGE conduct as described herein was a producing cause of damages to PLAINTIFF for which PLAINTIFF sues. The conduct of the SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE was more than just a mistake, and was done “knowingly” and/or “intentionally,” as those terms are derived by statute. Because of that, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE may be subject to liability for additional damages under the Texas Deceptive Trade Practices Act. PLAINTIFF seeks an award of additional damages under the DTPA in an amount not to exceed three times the amount of economic damages. VIII. Unfair Insurance Practices SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to inform PLAINTIFF of material facts, such as the true scope of damage and cost to repair. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to properly process claims and have misrepresented material facts to the PLAINTIFF. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has failed to address all damage to the property and its contents causing further damage to the PLAINTIFF. Further, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has intentionally failed to fully investigate the loss; failed to properly convey all information to PLAINTIFF; and has intentionally ignored damages to the dwelling. PLAINTIFF’S property suffered from covered losses and damages of which SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is fully aware. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has concealed damage known by it to exist. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has known about covered hail and water damages but has failed to perform proper testing and concealed facts from PLAINTIFF about the damages, ignoring PLAINTIFF’S plea for help. 6 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has failed to warn PLAINTIFF of consequential damage to their property. By its conduct outlined above, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE committed unfair practices in the business of insurance prohibited by Chapter 541, Texas Insurance Code, and the statutes, rules and regulations incorporated therein. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE committed the following acts in violation of Texas Insurance Code and Texas Administrative Code: (1) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to, with good faith, effectuate a prompt, fair, and equitable settlement of the PLAINTIFF’S claims once liability became reasonable clear (Tex. Ins. Code Ann. 541.060(a)(2)(A); Tex. Ins. Code Ann. 542.003(b)(4); 28 TAC section 21.203(4)); (2) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to provide promptly to PLAINTIFF a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for denial of the claim or for the offer of a compromise settlement of the claim (Tex. Ins. Code Ann. 541.060(a)(3); 28 TAC section 21.203(9)); (3) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE refused to pay a claim without conducting a reasonable investigation with respect to that claim (Tex. Ins. Code Ann. 541.060(a)(7); TAC section 21.203(15)); (4) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE breached its duty of good faith and fair dealing at common law; (5) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to adopt and implement reasonable standards for the prompt investigation of claims arising under the insurer’s policies (Tex. Ins. Code Ann. 542. 003(b)(3); 28 TAC section 21.203(3)); 7 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B (6) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE compelled PLAINTIFF to institute a suit to recover an amount due under a policy by offering substantially less than the amount ultimately recovered in a suit brought by the policyholder (Tex. Ins. Code Ann. 542.003(b)(5); 28 TAC section 21.203(6); (7) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE violated the Prompt Payment of Claims Statute (28 TAC section 21.203(18)); (8) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE committed the following unfair methods of competition or deceptive acts or practices in the business of insurance in violation of Texas Insurance Code and the Texas Administrative Code by: (a) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made, issued or circulated or caused to be made, issued or circulated an estimate, illustration, circular or statement misrepresenting with respect to the policy issued or to be issued: (i) the terms of the policy; and/or (ii) the benefits or advantages promised by the policy. (b) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made an untrue statement of material fact (Tex. Ins. Code Ann. 541.060(a)(1); 28 TAC section 21.203(1)); (c) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to state a material fact necessary to make other statements made not misleading, considering the circumstances under which statements were made; and 8 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B (d) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE made statements in a manner that would mislead a reasonably prudent person to a false conclusion of material fact. (e) SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE refused to make a settlement offer under applicable first-party coverage on the basis that other coverage may be available or that third parties are responsible for the damages suffered, except as may be specifically provided in the policy (Tex. Ins. Code Ann 541.060(a)(5); 28 TAC section 21.203(11); SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S conduct as described herein was a producing cause of damages to PLAINTIFF, for which he now sues. IX. Breach of the Duty of Good Faith and Fair Dealing From and after the time the PLAINTIFF’S claims were presented to SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, liability to pay the claims in accordance with the terms of insurance policies referenced above has been reasonably clear. Despite there being no basis whatsoever on which a reasonable insurance company would have relied to deny and/or delay payment for PLAINTIFF’S claims, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE refused to accept the claims in totality and pay the PLAINTIFF as the policy required. At that time, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE knew or should have known by the exercise of reasonable diligence that their liability was reasonably clear. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to conduct a reasonable and proper inspection of the claims and refused to rely on the true facts, resorting instead to producing faulty, incomplete, and biased reasons to avoid paying a valid claim. This constitutes failing to handle or process the PLAINTIFF’S claims in good faith, an affirmative 9 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B duty placed on SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, as expressly stated by the Texas Supreme Court in Vail v. Texas Farm Bureau, 754 S.W.2d 129 at 135 (Tex. 1988). Through the actions described above, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE breached its duty to deal fairly and in good faith with the PLAINTIFF. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S breach was a proximate cause of the losses, expenses and damages suffered by the PLAINTIFF, for which he sues. X. Texas Insurance Code 542, Subchapter B Delay in Payment PLAINTIFF gave prompt notice of their claims to SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE has engaged in unfair settlement claims practices, as discussed above and denied and/or has delayed payment on PLAINTIFF’S claim. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S reliance on reports and estimates from its adjusters and investigating adjusters has been “merely pretextual” and unreasonable. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE’S investigation and use of adjusters’ reports was an “outcome-oriented” investigation. SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE failed to comply with the requirements of Chapter 542 listed herein: (a) Failing to pay PLAINTIFF’S claim within 60 days of receiving all of the items, statements, and forms required by the insurer to secure final proof of loss, of the acceptance or rejection of a claim; and (b) Failing to request all of the items, statements and forms the SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE reasonably believed at the time would be required from PLAINTIFF to pay the claim within 15 days after receiving notice of the claim. 10 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B Pursuant to Texas Insurance Code Chapter 542, Subchapter B, PLAINTIFF is entitled to recover from SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE the statutory penalty of 5% plus the interest rate determined under Section 304.003, Finance Code, on all amounts due on PLAINTIFF’S claims, together with attorney’s fees, for which he sues. XI. PLAINTIFF alleges that as to any terms, conditions, notices, or requests under the insurance contract, PLAINTIFF has substantially complied and/or is excused. In the alternative, PLAINTIFF makes the allegation of waiver and/or estoppel as to every defense or exclusion plead by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE as to any exclusion, condition, or defense pled by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, PLAINTIFF would show that: 1. The clear and unambiguous language of the policy provides coverage for dwelling damage caused by hail and water damage, including the cost of access to fix the damaged areas. Any other construction of the language of the policy is void as against public policy; 2. Any other construction and its use by SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE violates section 541 and 542 of the Texas Insurance Code and are void as against public policy; 3. Any other construction violates Art. 17.50 of the Texas Business and Commerce Code, is unconscionable, was procured by fraudulent inducement, and is void as against public policy; 4. Any other construction is otherwise void as against public policy, illegal, and violates state law and administrative rule and regulation; 11 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B 5. The adoption of any other construction constitutes wrongful or bad faith cancellation and/or refusal to renew a portion of PLAINTIFF’S predecessor policy with SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE. In this regard, PLAINTIFF would show that his insurance policy was renewed uninterruptedly for many years; and 6. The adoption of any other construction constitutes conduct in violation of the laws of this state, including section 541 and 542 of Texas Insurance Code is void as against public policy. If this Court finds any ambiguity in the policy, the rules of construction of such policies mandate the construction and interpretation urged by PLAINTIFF. In the alternative, SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE is judicially, administratively, or equitably estopped from denying PLAINTIFF’S construction of the policy coverage at issue. To the extent that the wording of such policy does not reflect the true intent of all parties thereto, PLAINTIFF pleads the doctrine of mutual mistake, thus requiring reformation. XII. Exemplary Damages Plaintiff would further show that the acts and omissions of Defendant and its agents, adjusters, employees and/or representatives complained of herein were committed knowingly, willfully, intentionally, with actual awareness, and with the specific and predetermined intention of enriching said Defendant at the expense of the Plaintiff. In order to punish said Defendant for such unconscionable overreaching and to deter such actions and/or omissions in the future, Plaintiff requests exemplary damages pursuant to 17.50(b)(1) of the Texas Business and Commerce Code and § 541.152(b) of the Tex. Ins. Code. 12 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B XIII. WHEREFORE, PREMISES CONSIDERED, PLAINTIFF respectfully requests this Honorable Court for the following relief: That upon final hearing and trial hereof, this Honorable Court grant to the PLAINTIFF such relief as to which he may show himself justly entitled, either at law or in equity; either general or special, including declaratory judgment, judgment against the SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE for actual attorney’s fees, cost of suit, mental anguish, DTPA violations, Texas insurance code violations, statutory penalties, and pre-judgment and post-judgment interest, including judgment for additional damages and punitive damage under the facts set forth in this or any amended pleading in exceeding the minimal jurisdictional limits of the court. XIV. Jury Demand PLAINTIFF requests that this Court empanel a jury to sit in the trial of this matter. The requisite jury fee will be paid as required by law. XV. Required Disclosures Under Texas Rule of Civil Procedure 194, PLAINTIFF requests that SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE disclose, within 30 days of filings its answer, the information or material described in Texas Rule of Civil Procedure 194. Respectfully submitted, /s/ Omar Ochoa Omar Ochoa Tex. Bar No. 24079813 OMAR OCHOA LAW FIRM PC 121 N. 10th Street McAllen, Texas 78501 Tel: (956) 630-3266 oochoa@omarochoalaw.com 13 Electronically Submitted 3/11/2024 12:00 AM Hidalgo County Clerk Accepted by: Nancy Flores CL-24-1136-B /s/ Victor Rodriguez Jr. Victor Rodriguez Jr. Tex. Bar No. 24041809 VICTOR RODRIGUEZ LAW FIRM PLLC 121 N. 10th Street McAllen, Texas 78501 Tel: (956) 630-3266 victor@vrodriguezlaw.com ATTORNEYS FOR PLAINTIFF 14 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. Robert Ramos on behalf of Omar Ochoa Bar No. 24079813 rramos@omarochoalaw.com Envelope ID: 85391796 Filing Code Description: Petition Filing Description: Status as of 3/11/2024 8:20 AM CST Associated Case Party: JoseFlores Name BarNumber Email TimestampSubmitted Status Sabrina Vela svela@omarochoalaw.com 3/10/2024 5:20:39 PM SENT Alexis Saenz asaenz@omarochoalaw.com 3/10/2024 5:20:39 PM SENT Renee Rosillo rrosillo@omarochoalaw.com 3/10/2024 5:20:39 PM SENT Victor Rodriguez Victor@vrodriguezlaw.com 3/10/2024 5:20:39 PM SENT Robert Ramos rramos@omarochoalaw.com 3/10/2024 5:20:39 PM SENT Omar Ochoa oochoa@omarochoalaw.com 3/10/2024 5:20:39 PM SENT