Preview
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
CAUSE NO. CL-22-4751-D
ROGELIO HERNANDEZ § IN THE COUNTY COURT
§
Plaintiff, §
§
v. § AT LAW NO. FOUR
§
ZURICH AMERICAN §
INSURANCE COMPANY §
§
Defendant. § HIDALGO COUNTY, TEXAS
FIRST AMENDED ANSWER OF ZURICH AMERICAN INSURANCE COMPANY
COMES NOW, Zurich American Insurance Company (“Zurich”), Defendant in this suit and
files this First Amended Answer to Plaintiff’s Original Petition (“Petition”), and shows the Court as
follows:
GENERAL DENIAL
1. Defendant hereby denies each and every, all and singular, the material allegations
as contained in the Petition and demands strict proof thereof by a preponderance of the evidence.
REQUEST FOR COURT REPORTER
2. Pursuant to the Texas Government Code § 52.046 (Vernon 1988), Defendant
requests that a court reporter attend all sessions of the court in conjunction with this civil action.
ADDITIONAL DEFENSES
3. Plaintiff’s claims are barred in whole or in part because no suit, action or
proceeding for the recovery of any claim under the applicable Policy shall be sustainable in any
court of law or equity unless the Insured shall have fully complied with all the requirements of
this Policy.
First Amended Answer of Zurich American Insurance Company 1
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
4. Plaintiff’s claims are barred in whole or in part to the extent Plaintiff was
contributorily negligent and Defendant hereby invoke comparative negligence of Plaintiff in
accordance with Texas Civil Practice and Remedies Code section 33.001, et seq.
5. Defendant specifically denies that it has waived or that it is estopped from asserting
policy defenses or any other terms, conditions, provisions or requirements of the applicable Policy
based on any actions or conduct.
6. Plaintiff’s claims are barred in whole or in part because Defendant did not act
knowingly, unconscionably, with conscious indifference, or with malice.
7. Plaintiff’s claim for extra-contractual damages is barred because: (1) Defendant
did not breach the Policy, (2) Defendant did not violate the Texas Insurance Code, and (3)
Defendant did not violate the Texas Deceptive Trade Practices Act.
8. Plaintiff’s claims are barred in whole or in part because a bona fide controversy
existed or continues to exist concerning Plaintiff’s entitlement to benefits under the Policy.
9. Plaintiffs’ claims are barred in whole or in part by the doctrine of concurrent causes
of loss, which provides that when uncovered and covered causes of loss combine or contribute to
a loss, the Plaintiffs must prove those damages caused solely by a covered cause of loss. Losses
that occurred prior to or after the applicable policy period or that are excluded under the applicable
Policy are not covered losses.
10. Plaintiff’s claims are barred in whole or in part by the doctrine of concurrent causes
of loss, which provides that when multiple occurrences damage the same property, the Plaintiff
must prove the damages caused solely by each occurrence. Plaintiff must segregate the damages
between such occurrences.
First Amended Answer of Zurich American Insurance Company 2
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
11. Plaintiffs’ claims are barred in whole or in part because the Policy only insures
covered causes of loss commencing during the applicable policy period.
12. Plaintiff’s claims are barred in whole or in part by the application of policy terms,
conditions, exclusions, limitations, sublimits and deductibles.
13. Plaintiffs’ claims are barred in whole or in part to the extent his damages pre-
existed the date of inception of the Policy.
14. Plaintiff’s claims are barred in whole or in part by the fortuity doctrine.
15. Plaintiff’s claims are barred in whole or in part because it is against public policy
to insure known or ongoing losses.
16. Plaintiff’s claims are barred in whole or in part because Plaintiff failed to protect
the property from further loss or damage and Defendant has been prejudiced thereby.
17. Plaintiff’s claims for violations of Texas Insurance Code chapters 541 and 542, and
for violations of the Texas Deceptive Trade Practices Act are all barred because (1) Defendant did
not breach the Policy; (2) Defendant did not commit any act so extreme that it produced damages
unrelated to and independent of the claims under the Policy; and (3) Defendant did not conduct
an unreasonable investigation under the facts and circumstances of the Claim.
18. Plaintiff’s claims are barred in whole or in part if the Property was not Plaintiff’s
residence premises at the time of the loss.
19. Plaintiff’s claim is barred in whole or in part by the following provisions from the
Policy.
SECTION I – PROPERTY COVERAGES
A. Coverage A – Dwelling
1. We cover:
a. The dwelling on the “residence premises” shown in the Declarations, including
structures attached to the dwelling
First Amended Answer of Zurich American Insurance Company 3
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
* * *
DEFINITIONS
* * *
11. “Residence premises” means:
a. The one-family dwelling where you reside;
b. The two-, three-, or four-family dwelling where you reside in at least one of the family
units; or
c. That part of any other building where you reside;
and which is shown as the “residence premises” in the Declarations
“Residence premises” also includes other structures and grounds at the location
20. Plaintiff’s claim is barred in whole or in part by the following provisions from the
Policy.
SECTION I – PERILS INSURED AGAINST
A. Coverage A – Dwelling and Coverage B –Other Structures
2. We do not insure, however, for loss:
a. Excluded under Section I- Exclusions:
…
c. Caused by:
…
(6) Any of the following:
(a) Wear and tear, marring, deterioration
(b) Mechanical breakdown, latent defect, inherent vice or any
quality in property thatcauses it to damage or destroy itself;
21. Plaintiff’s claim is barred in whole or in part by the following exclusions in the
Policy.
SECTION I – EXCLUSIONS
B. Coverage A – Dwelling and Coverage B –Other Structures
2. We do not insure for loss to property described in Coverages A and B caused by any
of the following. However, any ensuing loss to property described in Coverages A
and B not precludedby any other provision in this policy is covered:
3. Faulty, inadequate or defective;
b. Design, specifications, workmanship, repair, construction, renovation,
remodeling, grading,compaction;
c. Materials used in repair, construction, renovation or remodeling; or of
First Amended Answer of Zurich American Insurance Company 4
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
part or all of anyproperty whether on or off the Described Location.
22. Plaintiff’s claim is barred in whole or in part by the following Conditions:
SECTION I – CONDITIONS
Q. Policy Period. This policy applies only to loss which
occurs during the policy period.
23. Plaintiff’s claim is barred in whole or in part by the following Conditions:
SECTION I - CONDITIONS
C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage
under this policy if the failure to comply with the following duties is
prejudicial to us. These duties must be performed either by you, an
“insured” seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent.
4. Protect the property from further damage. If repairs to the property
are required, you must:
a. Make reasonable and necessary repairs to protect the property;
and
b. Keep an accurate record of repair expenses;
* * *
SECTION II – CONDITIONS
C. Duties After "Occurrence"
In case of an "occurrence", you or another "insured" will perform the
following duties that apply. We have no duty to provide coverage under
this policy if your failure to comply with the following duties is prejudicial
to us. You will help us by seeing that these duties are performed:
1. Give written notice to us or our agent as soon as is practical,
which sets forth:
a. The identity of the policy and the "named insured" shown in
the Declarations;
First Amended Answer of Zurich American Insurance Company 5
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
b. Reasonably available information on the time, place and
circumstances of the "occurrence"; and
c. Names and addresses of any claimants and witnesses
24. Plaintiff’s claim is barred in whole or in part by the following Conditions:
SECTION I - CONDITIONS
R. Concealment or Fraud
We provide coverage to no “insureds” under this policy if, whether before
or after a loss, an “insured” has:
1. Intentionally concealed or misrepresented any material fact or
circumstance;
2. Engaged in fraudulent conduct; or
3. Made false statements;
relating to this insurance
* * *
SECTION II – CONDITIONS
J. Concealment or Fraud
We do not provide coverage to an “insured” who, whether before or after
a loss, has:
1. Intentionally concealed or misrepresented any material fact or
circumstance;
2. Engaged in fraudulent conduct; or
3. Made false statements;
relating to this insurance
PRAYER
WHEREFORE, Defendant prays that this First Amended Answer be deemed good and
sufficient and after due proceedings are had, there be judgment herein in favor of Defendant
dismissing Plaintiff’s claims against Defendant, at Plaintiff’s cost and such other general and
equitable relief as the nature of the case may require or permit.
First Amended Answer of Zurich American Insurance Company 6
Electronically Submitted
2/22/2023 3:25 PM
Hidalgo County Clerk
Accepted by: Sandra E. Falcon
Respectfully submitted,
/s/ Carter L. Ferguson
Carter L. Ferguson
State Bar No. 06909500
cferguson@belaw.com
Landon D. Young
State Bar No. 24095037
lyoung@belaw.com
Brackett & Ellis, P.C.
100 Main Street
Fort Worth, Texas 76102-3090
(817) 338-1700
(817) 870-2265 fax
ATTORNEYS FOR ZURICH AMERICAN
INSURANCE COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure.
Douglas E. Pennebaker Via E-Service
Bar No. 00788178
Doug@pennebakerlaw.com
Eric A. Quiroz
Bar No. 24090921
Eric@pennebakerlaw.com
PENNEBAKER LAW FIRM
4130 Parkdale St.
San Antonio, Texas 78229
Telephone: (210) 562-2882
Facsimile: (210) 562-2880
ATTORNEY FOR PLAINTIFF
DATED this 22nd day of February, 2023.
/s/ Carter L. Ferguson
Carter L. Ferguson
First Amended Answer of Zurich American Insurance Company 7
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.
Norma Flores on behalf of Landon Young
Bar No. 24095037
nflores@belaw.com
Envelope ID: 73011571
Status as of 2/22/2023 4:13 PM CST
Associated Case Party: Zurich American Insurance Company
Name BarNumber Email TimestampSubmitted Status
Carter LFerguson cferguson@belaw.com 2/22/2023 3:25:35 PM SENT
Norma Flores nflores@belaw.com 2/22/2023 3:25:35 PM SENT
Monique Cauthen mcauthen@belaw.com 2/22/2023 3:25:35 PM SENT
Landon Young lyoung@belaw.com 2/22/2023 3:25:35 PM SENT
Cindy Tucker ctucker@belaw.com 2/22/2023 3:25:35 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Douglas E.Pennebaker Doug@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT
Delicia Elizalde delizalde.texashail@gmail.com 2/22/2023 3:25:35 PM SENT
Eric Quiroz eric@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT
Stephen Schietinger Stephen@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT
Anel Valdez anel.texashail@gmail.com 2/22/2023 3:25:35 PM SENT
Preview
Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon CAUSE NO. CL-22-4751-D ROGELIO HERNANDEZ § IN THE COUNTY COURT § Plaintiff, § § v. § AT LAW NO. FOUR § ZURICH AMERICAN § INSURANCE COMPANY § § Defendant. § HIDALGO COUNTY, TEXAS FIRST AMENDED ANSWER OF ZURICH AMERICAN INSURANCE COMPANY COMES NOW, Zurich American Insurance Company (“Zurich”), Defendant in this suit and files this First Amended Answer to Plaintiff’s Original Petition (“Petition”), and shows the Court as follows: GENERAL DENIAL 1. Defendant hereby denies each and every, all and singular, the material allegations as contained in the Petition and demands strict proof thereof by a preponderance of the evidence. REQUEST FOR COURT REPORTER 2. Pursuant to the Texas Government Code § 52.046 (Vernon 1988), Defendant requests that a court reporter attend all sessions of the court in conjunction with this civil action. ADDITIONAL DEFENSES 3. Plaintiff’s claims are barred in whole or in part because no suit, action or proceeding for the recovery of any claim under the applicable Policy shall be sustainable in any court of law or equity unless the Insured shall have fully complied with all the requirements of this Policy. First Amended Answer of Zurich American Insurance Company 1 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon 4. Plaintiff’s claims are barred in whole or in part to the extent Plaintiff was contributorily negligent and Defendant hereby invoke comparative negligence of Plaintiff in accordance with Texas Civil Practice and Remedies Code section 33.001, et seq. 5. Defendant specifically denies that it has waived or that it is estopped from asserting policy defenses or any other terms, conditions, provisions or requirements of the applicable Policy based on any actions or conduct. 6. Plaintiff’s claims are barred in whole or in part because Defendant did not act knowingly, unconscionably, with conscious indifference, or with malice. 7. Plaintiff’s claim for extra-contractual damages is barred because: (1) Defendant did not breach the Policy, (2) Defendant did not violate the Texas Insurance Code, and (3) Defendant did not violate the Texas Deceptive Trade Practices Act. 8. Plaintiff’s claims are barred in whole or in part because a bona fide controversy existed or continues to exist concerning Plaintiff’s entitlement to benefits under the Policy. 9. Plaintiffs’ claims are barred in whole or in part by the doctrine of concurrent causes of loss, which provides that when uncovered and covered causes of loss combine or contribute to a loss, the Plaintiffs must prove those damages caused solely by a covered cause of loss. Losses that occurred prior to or after the applicable policy period or that are excluded under the applicable Policy are not covered losses. 10. Plaintiff’s claims are barred in whole or in part by the doctrine of concurrent causes of loss, which provides that when multiple occurrences damage the same property, the Plaintiff must prove the damages caused solely by each occurrence. Plaintiff must segregate the damages between such occurrences. First Amended Answer of Zurich American Insurance Company 2 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon 11. Plaintiffs’ claims are barred in whole or in part because the Policy only insures covered causes of loss commencing during the applicable policy period. 12. Plaintiff’s claims are barred in whole or in part by the application of policy terms, conditions, exclusions, limitations, sublimits and deductibles. 13. Plaintiffs’ claims are barred in whole or in part to the extent his damages pre- existed the date of inception of the Policy. 14. Plaintiff’s claims are barred in whole or in part by the fortuity doctrine. 15. Plaintiff’s claims are barred in whole or in part because it is against public policy to insure known or ongoing losses. 16. Plaintiff’s claims are barred in whole or in part because Plaintiff failed to protect the property from further loss or damage and Defendant has been prejudiced thereby. 17. Plaintiff’s claims for violations of Texas Insurance Code chapters 541 and 542, and for violations of the Texas Deceptive Trade Practices Act are all barred because (1) Defendant did not breach the Policy; (2) Defendant did not commit any act so extreme that it produced damages unrelated to and independent of the claims under the Policy; and (3) Defendant did not conduct an unreasonable investigation under the facts and circumstances of the Claim. 18. Plaintiff’s claims are barred in whole or in part if the Property was not Plaintiff’s residence premises at the time of the loss. 19. Plaintiff’s claim is barred in whole or in part by the following provisions from the Policy. SECTION I – PROPERTY COVERAGES A. Coverage A – Dwelling 1. We cover: a. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling First Amended Answer of Zurich American Insurance Company 3 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon * * * DEFINITIONS * * * 11. “Residence premises” means: a. The one-family dwelling where you reside; b. The two-, three-, or four-family dwelling where you reside in at least one of the family units; or c. That part of any other building where you reside; and which is shown as the “residence premises” in the Declarations “Residence premises” also includes other structures and grounds at the location 20. Plaintiff’s claim is barred in whole or in part by the following provisions from the Policy. SECTION I – PERILS INSURED AGAINST A. Coverage A – Dwelling and Coverage B –Other Structures 2. We do not insure, however, for loss: a. Excluded under Section I- Exclusions: … c. Caused by: … (6) Any of the following: (a) Wear and tear, marring, deterioration (b) Mechanical breakdown, latent defect, inherent vice or any quality in property thatcauses it to damage or destroy itself; 21. Plaintiff’s claim is barred in whole or in part by the following exclusions in the Policy. SECTION I – EXCLUSIONS B. Coverage A – Dwelling and Coverage B –Other Structures 2. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precludedby any other provision in this policy is covered: 3. Faulty, inadequate or defective; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading,compaction; c. Materials used in repair, construction, renovation or remodeling; or of First Amended Answer of Zurich American Insurance Company 4 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon part or all of anyproperty whether on or off the Described Location. 22. Plaintiff’s claim is barred in whole or in part by the following Conditions: SECTION I – CONDITIONS Q. Policy Period. This policy applies only to loss which occurs during the policy period. 23. Plaintiff’s claim is barred in whole or in part by the following Conditions: SECTION I - CONDITIONS C. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: 1. Give prompt notice to us or our agent. 4. Protect the property from further damage. If repairs to the property are required, you must: a. Make reasonable and necessary repairs to protect the property; and b. Keep an accurate record of repair expenses; * * * SECTION II – CONDITIONS C. Duties After "Occurrence" In case of an "occurrence", you or another "insured" will perform the following duties that apply. We have no duty to provide coverage under this policy if your failure to comply with the following duties is prejudicial to us. You will help us by seeing that these duties are performed: 1. Give written notice to us or our agent as soon as is practical, which sets forth: a. The identity of the policy and the "named insured" shown in the Declarations; First Amended Answer of Zurich American Insurance Company 5 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon b. Reasonably available information on the time, place and circumstances of the "occurrence"; and c. Names and addresses of any claimants and witnesses 24. Plaintiff’s claim is barred in whole or in part by the following Conditions: SECTION I - CONDITIONS R. Concealment or Fraud We provide coverage to no “insureds” under this policy if, whether before or after a loss, an “insured” has: 1. Intentionally concealed or misrepresented any material fact or circumstance; 2. Engaged in fraudulent conduct; or 3. Made false statements; relating to this insurance * * * SECTION II – CONDITIONS J. Concealment or Fraud We do not provide coverage to an “insured” who, whether before or after a loss, has: 1. Intentionally concealed or misrepresented any material fact or circumstance; 2. Engaged in fraudulent conduct; or 3. Made false statements; relating to this insurance PRAYER WHEREFORE, Defendant prays that this First Amended Answer be deemed good and sufficient and after due proceedings are had, there be judgment herein in favor of Defendant dismissing Plaintiff’s claims against Defendant, at Plaintiff’s cost and such other general and equitable relief as the nature of the case may require or permit. First Amended Answer of Zurich American Insurance Company 6 Electronically Submitted 2/22/2023 3:25 PM Hidalgo County Clerk Accepted by: Sandra E. Falcon Respectfully submitted, /s/ Carter L. Ferguson Carter L. Ferguson State Bar No. 06909500 cferguson@belaw.com Landon D. Young State Bar No. 24095037 lyoung@belaw.com Brackett & Ellis, P.C. 100 Main Street Fort Worth, Texas 76102-3090 (817) 338-1700 (817) 870-2265 fax ATTORNEYS FOR ZURICH AMERICAN INSURANCE COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure. Douglas E. Pennebaker Via E-Service Bar No. 00788178 Doug@pennebakerlaw.com Eric A. Quiroz Bar No. 24090921 Eric@pennebakerlaw.com PENNEBAKER LAW FIRM 4130 Parkdale St. San Antonio, Texas 78229 Telephone: (210) 562-2882 Facsimile: (210) 562-2880 ATTORNEY FOR PLAINTIFF DATED this 22nd day of February, 2023. /s/ Carter L. Ferguson Carter L. Ferguson First Amended Answer of Zurich American Insurance Company 7 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. Norma Flores on behalf of Landon Young Bar No. 24095037 nflores@belaw.com Envelope ID: 73011571 Status as of 2/22/2023 4:13 PM CST Associated Case Party: Zurich American Insurance Company Name BarNumber Email TimestampSubmitted Status Carter LFerguson cferguson@belaw.com 2/22/2023 3:25:35 PM SENT Norma Flores nflores@belaw.com 2/22/2023 3:25:35 PM SENT Monique Cauthen mcauthen@belaw.com 2/22/2023 3:25:35 PM SENT Landon Young lyoung@belaw.com 2/22/2023 3:25:35 PM SENT Cindy Tucker ctucker@belaw.com 2/22/2023 3:25:35 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Douglas E.Pennebaker Doug@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT Delicia Elizalde delizalde.texashail@gmail.com 2/22/2023 3:25:35 PM SENT Eric Quiroz eric@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT Stephen Schietinger Stephen@pennebakerlaw.com 2/22/2023 3:25:35 PM SENT Anel Valdez anel.texashail@gmail.com 2/22/2023 3:25:35 PM SENT