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AUSE NO.
TREY JENNINGS
IN THE DISTRICT COURT OF
Plaintiff
JUDICIAL DISTRICT
ALLSTATE VEHICLE AND
PROPERTY INSURANCE
COMPANY,
efendan MONTGOMERY COUNTY, TEXAS
PLAINTIFF’SORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Trey Jennings (hereinafter referred to as Plaintiff , and files this
Plaintiff’s Original Petition complaining of Allstate Vehicle and Property Insurance Company
Defendant”), andfor cause of action, Plaintiff would respectfully show this honorable Court the
following:
DISCOVERY CONTROL PLAN
Plaintiff intends discovery in this case be conducted under the provisions of Texas Rule of
Civil Procedure 190. (Level 3), and request that the Court enter an appropriate scheduling
order.
PARTIES
Plaintiffs, Trey Jennings is an individual domiciled in Montgomery County, Texas.
Defendant Allstate Vehicle and Property Insurance Company is a foreign insurance
company registered with the Texas Department of Insurance engaging in the business of
insurance in the State of Texas. Defendant may be served with process by serving its
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registered agent a T CORPORATION SYSTEM, 1999 BRYAN STREET, SUITE
900, DALLAS, TEXAS 75201-3136.
JURISDICTION AND VENUE
The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiff is seeking only monetary relief
$250,000.00 or less, excluding interest, statutory or punitive damages and penalties, and
attorney’s fees and costs. Tex. R. Civ. P. 47.
The Court has jurisdiction over Defendant because this Defendant engages in the business
of insurance in the State of Texas, and Plaintiff’s causes of action arise out of this
Defendant’s business activities in the State of Texas.
Venue is proper Montgomery County, Texas, because the insured property at issue is
situated in this county and the events giving rise to this lawsuit occurred in this county.
FACTS
Plaintiff is the owner of Texas insurance policy number (hereinafter the
“Policy”), which was issued by Defendant.
Plaintiff owns the insured properties, which specifically located at 6310 Palmer Court,
Magnolia, Texas 77354 (hereinafter the “Property”).
Defendant sold the Policy insuring the Property to Plaintiff
On or about June 21, 2023, a wind/hailstorm caused extensive damage to the insured
Property
Plaintiff submitted a claim to Defendant against the Policy for damages the Property
sustained as a result of the storm event. Upon information and belief, Defendant assigned
number 0719046435 to the claim.
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Plaintiff asked that Defendant cover the cost of repairs to the Property, pursuant to the
Policy.
Upon information and belief, Defendant’s flawed and severely undervalued estimate of
Plaintiff’s covered damages under the Policy for the claim at issue in the Lawsuit was based
upon Defendant’s Claims Handling Guidelines, Estimating Guidelines, and Damage
Assessment Guidelines, the adequacy, fairness, and accuracy of which are squarely at issue
in this case.
To date, Defendantcontinues to delay in the payment for the damages to the property. As
such, Plaintiff have not been paid in full for the damages to the Property.
Defendant inspected the property and did not issue a payment to Plaintiff for the damages
Defendant multiple occasions failed to properly inspect the property and failed to
properly scope the loss by intentionally ignoring areas of damage and turning a blind eye
to the true extent of the loss.
Defendant set about to deny and/or underpay on properly covered damages. As a result of
Defendant’s unreasonable investigation of the claim, including not providing full coverage
for the damages sustained by Plaintiffs, as well as under scoping the damages during its
investigation and thus denying adequate and sufficient payment to Plaintiff to repair the
PropertyPlaintiff’s claim was improperly adjusted. The mishandling of Plaintiff’sclaim
has also caused a delay in Plaintiff’s ability to fully repair the Property, which has resulted
in additional damages. To this date, Plaintiff have yet to receive the full payment to which
theyare entitled under the Policy.
Defendantwrongfully denied Plaintiff’s claim for repairs of the Property, even though the
Policy provided coverage for losses such as those suffered by Plaintiffs. Furthermore,
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Defendant underpaid some of Plaintiff’s claims by not providing full coverage for the
damages sustained by Plaintiffs, as well as under scoping the damages during its
investigation.
Defendant failed to perform its contractual duties to adequately compensate Plaintiff under
the terms of the Policy. Specifically, it refused to pay the full proceeds of the Policy,
although due demand was made for proceeds to be paid in an amount sufficient to cover
the damaged property, and all conditions precedent to recovery upon the Policy had been
carried out and accomplished by the PlaintiffsDefendant’s conduct constitutes a breach
of the insurance contract between Defendantand Plaintiffs
Defendant misrepresented to Plaintiff that certaindamage to the Property was not covered
under the Policy, even though the damage was caused by a covered occurrence.
Defendant’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement
Practices. ODE§541.060(a)(1).
Defendant failed to make an attempt to settle Plaintiff’s claim in a fair manner, although
they were aware of their liability to Plaintiff under the Policy. Defendant’s conduct
constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices.
ODE§541.060(a)(2)(A).
Defendant failed to explain to Plaintiff the reasons for their offer of an inadequate
settlement. Specifically, Defendant failed to offer Plaintiff adequate compensation,
without any or adequateexplanation why full payment was not being made. Furthermore,
Defendant did not communicate that any future settlements or payments would be
forthcoming to pay for the entire losses covered under the Policy, nor did they provide any
or adequate explanation for the failure to adequately settl Plaintiff’s claim. Defendant’s
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conduct is a violation of the Texas Insurance Code, Unfair Settlement Practices.
ODE§541.060(a)(3).
Defendant failed to affirm or deny coverage of Plaintiff’s claim within a reasonable time.
Specifically, Plaintiff did not receive timely indication of acceptance or rejection, regarding
the full and entire claim, in writing from Defendant. Defendant’s conduct constitutes a
violation of the Texas Insurance Code, Unfair Settlement Practices. ODE
§541.060(a)(4).
Defendant refused to fully compensate Plaintiffs, under the terms of the Policy, even
though Defendant failed to conduct a reasonable investigation. Specifically, Defendant
performed an outcome oriented investigation of Plaintiff’s claim, which resulted in a
biased, unfair, and inequitable evaluation of Plaintiff’s losses on the Property. Defendant’s
conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices.
ODE§541.060(a)(7).
Defendant failed to meet its obligations under the Texas Insurance Code regarding unfair
claim settlement practices that are prohibited under § 542.003, including compelling a
policyholder to institute a suit to recover an amount due under the Policy by offering
substantially less than the amount ultimately recovered in a suit brought by the
policyholder. ODE § 542.003(b)(5).
Defendant failed to meet its obligations under the Texas Insurance Code regarding timely
acknowledging Plaintiff’s claim, beginning an investigation of Plaintiff’s claim, and
requesting all information reasonably necessary to investigate Plaintiff’s claim, within the
statutorily mandated time of receiving notice of Plaintiff’s claimDefendant’s conduct
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constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims.
ODE
Defendant failed to accept or deny Plaintiff’s full and entire claim within the statutorily
mandated time of receiving all necessary information. Defendant’s conduct constitutes a
violation of the Texas Insurance Code, Prompt Payment of Claims. ODE
Defendant failed to meet its obligations under the Texas Insurance Code regarding payment
of claim without delay. Specifically, it has delayed full payment of Plaintiff’s claim longer
than allowed and, to date, Plaintiff not received full payment for the claim.
Defendant’s conduct constitutes a violation of the Texas Insurance Code, Prompt Payment
of Claims. ODE
From and after the time Plaintiff’s claim was presented to Defendant, the liability of
Defendantto pay the full claim in accordance with the terms of the Policy was reasonably
clear. However, Defendant has refused to pay Plaintiff in full, despite there being no basis
whatsoever on which a reasonable insurance company would have relied to deny the full
payment. Defendant’s conduct constitutes a breach of the common law duty of good faith
and fair dealing.
Defendant knowingly or recklessly made false representations, as described above, as to
material facts and/or knowingly concealed all or part of material information from
Plaintiffs
As a result of Defendant’s wrongful acts and omissions, Plaintiff wereforced to retain the
professional services of the attorney and law firm for representation with respect to these
causes of action.
LAINTIFF RIGINAL ETITION age of
CAUSES OF ACTION
Defendant liable to Plaintiff for intentional breach of contract, as well as intentional
violations of the Texas Insurance Code and Deceptive Trade Practices Act, intentional
breach of the common law duty of good faith and fair dealing, and common law fraud.
BREACH OF CONTRACT
The Policy is a valid, binding, and enforceable contract between Plaintiff and Defendant.
Defendant’s conduct constitutes a breach of the insurance contract made between
Defendant and Plaintiffs
Defendant’s failure and/or refusal, as described above, to pay the adequate compensation
as it is obligated to do under the terms of the Policy in question, and under the laws of the
State of Texas, constitutes a breach of Defendant’s surance contract with Plaintiffs
The Defendant’s breach proximately caused Plaintiff’sinjuries and damages.
All conditions precedent required under the Policy have been performed, excused, waived,
or otherwise satisfied by the Plaintiffs
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
Defendant’s conduct constitutes multiple violations of the Texas Insurance Code, Unfair
Settlement Practices. ODE §541.060(a All violations under this article are
made actionable by ODE §541.151.
Defendant’s unfair settlement practice, as described above, of misrepresenting to Plaintiff
material facts relating to the coverage at issue, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. ODE
§541.060(a)(1).
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Defendant’s unfair settlement practice , as described above, of failing to attempt in good
faith to effectuate a prompt, fair, and equitable settlement of the claim, even though
Defendant liability under the Policy was reasonably clear, constitutes an unfair method
of competition and an unfair and deceptive act or practice in the business of insurance.
ODE §541.060(a)(2)(A).
Defendant’s unfair settlement practice , as described above, of failing to promptly provide
the Plaintiff with a reasonable explanation of the basis in the Policy, in relation to the facts
or applicable law, for its offer of a compromise settlement of the claim, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. ODE §541.060(a)(3).
Defendant’s unfair settlement practice , as described above, of failing within a reasonable
time to affirm or deny coverage of the claim to Plaintiffs, or to submit a reservation of
rights to Plaintiffs, constitutes an unfair method of competition and an unfair and deceptive
act or practice in the business of insurance. ODE§541.060(a)(4).
Defendant’s unfair settlement practice , as described above, of refusing to pay Plaintiff’s
claim without conducting a reasonable investigation, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance.
ODE §541.060(a)(7).
Defendant’s unfair settlement practices, as described above, of compelling Plaintiff to file
a lawsuit to recover amounts due under the Policy by offering substantially less than the
amount ultimately recovered in Plaintiff’s lawsuit against Defendant, constitutes an unfair
method of competition and unfair and deceptive act or practice in the business of insurance.
ODE § 542.003(b)(5).
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Each of the foregoing unfair settlement practices were completed knowingly by the
Defendant andwere a producing cause of Plaintiff’sinjuries and damages.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
The Claim is a claim under an insurance policy with the Defendant of which Plaintiff gave
proper notice. The Defendant is liable for the Claim. Defendant’s conduct constitutes
multiple violations of the Texas Insurance Code, Prompt Payment of Claims. All violations
made under this article are made actionable by ODE §542.060.
Defendant’s failure to acknowledge receipt of Plaintiff’s claim, commence investigation
of the claim, and/or request from Plaintiff all items, statements, and forms that it reasonably
believed would be required within the applicable time constraints, as described above,
constitutes a non-prompt payment of claims and a violation of T ODE §542.055.
Defendant’s failure to notify Plaintiff in writing of its acceptance or rejection of the claim
within the applicable time constraints, constitutes a non prompt payment of the claim.
ODE §542.056.
Defendant’s delay of the payment of Plaintiff’s claim following its receipt of all items,
statements, and forms reasonably requested and required, longer than the amount of time
provided for, as described above, constitutes a non prompt payment of the claim.
ODE §542.058.
Each of the foregoing unfair settlement practices were completed knowingly by the
Defendant andwere a producing cause of Plaintiff’sinjuries and damages.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
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The Defendant breached the common law duty of good faith and fair dealing owed to
Plaintiff by denying or delaying payment on the Claim when Defendant knew or should
have known that liability was reasonably clear.
Defendant’s failure, as described above, to adequately and reasonably investigate and
evaluate Plaintiff’s claim, although, at that time, Defendant knew or should have known
by the exercise of reasonable diligence that its liability was reasonably clear, constitutes a
breach of the duty of good faith and fair dealing.
Defendant’s conduct proximately caused Plaintiff injuries and damages.
VIOLATION OF TEXAS DECEPTIVE TRADE PRACTICES ACT
Defendant s conduct violated the Texas Deceptive Trade Practices Act, TEX. BUS. &
COM. CODE § 17.41, et seq. (hereinafter the DTPA”)by engaging in “false, misleading
or deceptive acts and practices.”
Plaintiff is “consumer[s]” in that Plaintiff acquired goods and/or services by purchase, and
the goods and/or services form the basis of this action.
The Defendant committed numerous violations of the Texas DTPA, insofar as Defendant:
Represented that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities which they do not have;
Represented that an agreement confers or involves rights, remedies, or obligations
which it does not have or involve, or which are prohibited by law;
Failed to disclose information concerning goods or services which was known at
the time of the transaction when such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer would
not have entered had the information been disclosed;
Generally engaged in unconscionable courses of action while handling the Claim;
and/or
Violated the provisions of the Texas Insurance Code described herein.
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The Defendant took advantage of the Plaintiff’s lack of knowledge, ability, experience or
capacity to a grossly unfair degree and to the Plaintiff detriment. The Defendant’s acts
also resulted in a gross disparity between the value received and the consideration paid in
a transaction involving the transfer of consideration. As a result of the Defendant’s
violations of the DTPA Plaintiff suffered actual damages. In addition, the Defendant
committed the above acts knowingly and/or intentionally, entitling Plaintiff to three times
Plaintiff’sdamages for economic relief.
COMMON LAW FRAUD
Defendant is liable to Plaintiff for common law fraud.
Each and every one of the representations, as described above, concerned material facts for
the reason that absent such representations, Plaintiff would not have acted as they did, and
which Defendant knew were false or made recklessly without any knowledge of their truth
as a positive assertion.
The statements were made with the intention that they should be acted upon by Plaintiffs
who in turn acted in reliance upon the statements, thereby causing Plaintiff to suffer injury
and constituting common law fraud.
The Defendant knowingly or recklessly made false representations as to material facts
and/or knowingly concealed all or part of material information from Plaintiff with the intent
of inducing Plaintiff to accept a denial and/or underpayment of insurance benefits. The
Defendant allowed Plaintiff to use this information, or lack thereof, in justifiable reliance
in accepting the denial and/or underpayment. Plaintiff relied upon said statements in
accepting the denial and/or underpayment of the Claim andsuffered injury as a result.
DAMAGES
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Upon the trial of this case, it shall be shown Plaintiff sustained damages as a result of
Defendant s conduct. Plaintiff respectfully request the Court and jury award the amount
of loss Plaintiff have incurred in the past and will incur in the future. There are certain
elements of damages to be considered separately and indiviually for the purpose of
determining the sum of money that would fairly and reasonably compensate Plaintiff for
injuries, damages, and losses incurred and to be incurred. From the date of the occurrence
in question until the time of trial of this cause, Plaintiff seek every element of damage
allowed by Texas law with respect to the causes of action mentioned above, including but
not l mited to Plaintiff’s actual damages, policy benefits, pre judgment interest, post
judgme interest, consequential damages, court costs, attorneys’ fees, treble damages,
statutory interest, and exemplary damages.
Plaintiff would show that all the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiffs
The damages caused by the occurrence have not been properly addressed or repaired in the
months since the storm, causing further damages to the Property, and causing undue
hardship and burden to Plaintiffs. These damages are a direct result of Defendant’s
mishandling of Plaintiff’sclaim in violation of the laws set forth above.
For breach of contract, Plaintiff is entitled to regain the benefit of the bargain, which is the
amount of the claim, together with attorney’s feesand pre judgment interest
For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff
entitled to actual damages, which include the loss of the benefits that should have been
paid pursuant to the policy, mental anguish, court costs, and attorney's fees. For knowing
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conduct of the acts described above, Plaintiff ask for three times actual damages.
ODE
For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is
entitled to the claim amount, as well as eighteen (18) percent interest per annum on the
amount of such claim as damages, together with attorney's fees. ODE
For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to
compensatory damages, including all forms of loss resulting from the insurer's breach of
duty, such as additional costs, economic hardship, losses due to nonpayment of the amount
the insurer owed, exemplary damages, and damages for emotional distress.
For violations of the Deceptive Trade Practices Act, Plaintiff is entitled to recover actual
damages and up to three times Plaintiff’s damages for economic relief, along with
attorney’s fees, interest and court costs.
For fraud, Plaintiff is entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
For the prosecution and collection of this claim, Plaintiff have been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore, Plaintiff
entitled to recover a sum for the reasonable and necessary services of Plaintiff’s attorney
in the preparation and trial of this action, including any appeals to the Court of Appeals
and/or the Supreme Court of Texas.
Plaintiff has also incurred Additional Living Expenses pursuant to Coverage D of the
Policy, including expenses incurred for lodging, and the pack out and storage of contents
LAINTIFF RIGINAL ETITION age of
located within the Property. Plaintiff is entitled to recover additional sums for these
expenses pursuant to Coverage D of the Policy.
Plaintiff is not making any claims for relief under federal law.
JURY DEMAND
Plaintiff request a jury trial and have tendered any and all requisite fees for such along with
the filing of this Plaintiff’s Original Petition.
REQUESTFOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is requested to
disclose, within fifty (50) days of service of this request, the information described in Rule
194.2(a)-(l).
REQUEST FOR MEDIATION
Pursuant to Rule 541.161 of the Texas Insurance Code, Plaintiff requests a mediation
within 90 days of Defendant’s receipt of this petition by a magistrate judge agreed upon by
the parties.
RAYER
WHEREFORE, Plaintiff respectfully request that final judgment be rendered for the
Plaintiff as follows:
Judgment against Defendant for actual damages in an amount to be determined by the
jury;
Statutory benefits;
Treble damages;
Exemplary and punitive damages;
Pre-judgment interest as provided by law;
Post-judgment interest as provided by law;
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Attorneys’ fees;
Costs of suit;
Such other and further relief to which Plaintiff may be justly entitled.
Respectfully Submitted,
By:
Michael E. Cooper
Texas Bar No. 24131142
Email: mcooper@hodgefirm.com
Shaun W. Hodge
Texas Bar No. 24052295
Email: shodge@hodgefirm.com
HE ODGE AW IRM PLLC
The Historic Runge House
1301 Market Street
Galveston, Texas 77550
Telephone: (409) 762-5000
Facsimile: (409) 763-2300
ATTORNEYS FOR PLAINTIFF
TREY JENNINGS
LAINTIFF RIGINAL ETITION age of
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AUSE NO. TREY JENNINGS IN THE DISTRICT COURT OF Plaintiff JUDICIAL DISTRICT ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, efendan MONTGOMERY COUNTY, TEXAS PLAINTIFF’SORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Trey Jennings (hereinafter referred to as Plaintiff , and files this Plaintiff’s Original Petition complaining of Allstate Vehicle and Property Insurance Company Defendant”), andfor cause of action, Plaintiff would respectfully show this honorable Court the following: DISCOVERY CONTROL PLAN Plaintiff intends discovery in this case be conducted under the provisions of Texas Rule of Civil Procedure 190. (Level 3), and request that the Court enter an appropriate scheduling order. PARTIES Plaintiffs, Trey Jennings is an individual domiciled in Montgomery County, Texas. Defendant Allstate Vehicle and Property Insurance Company is a foreign insurance company registered with the Texas Department of Insurance engaging in the business of insurance in the State of Texas. Defendant may be served with process by serving its LAINTIFF RIGINAL ETITION age 1 of registered agent a T CORPORATION SYSTEM, 1999 BRYAN STREET, SUITE 900, DALLAS, TEXAS 75201-3136. JURISDICTION AND VENUE The Court has jurisdiction over this cause of action because the amount in controversy is within the jurisdictional limits of the Court. Plaintiff is seeking only monetary relief $250,000.00 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Tex. R. Civ. P. 47. The Court has jurisdiction over Defendant because this Defendant engages in the business of insurance in the State of Texas, and Plaintiff’s causes of action arise out of this Defendant’s business activities in the State of Texas. Venue is proper Montgomery County, Texas, because the insured property at issue is situated in this county and the events giving rise to this lawsuit occurred in this county. FACTS Plaintiff is the owner of Texas insurance policy number (hereinafter the “Policy”), which was issued by Defendant. Plaintiff owns the insured properties, which specifically located at 6310 Palmer Court, Magnolia, Texas 77354 (hereinafter the “Property”). Defendant sold the Policy insuring the Property to Plaintiff On or about June 21, 2023, a wind/hailstorm caused extensive damage to the insured Property Plaintiff submitted a claim to Defendant against the Policy for damages the Property sustained as a result of the storm event. Upon information and belief, Defendant assigned number 0719046435 to the claim. LAINTIFF RIGINAL ETITION age 2 of Plaintiff asked that Defendant cover the cost of repairs to the Property, pursuant to the Policy. Upon information and belief, Defendant’s flawed and severely undervalued estimate of Plaintiff’s covered damages under the Policy for the claim at issue in the Lawsuit was based upon Defendant’s Claims Handling Guidelines, Estimating Guidelines, and Damage Assessment Guidelines, the adequacy, fairness, and accuracy of which are squarely at issue in this case. To date, Defendantcontinues to delay in the payment for the damages to the property. As such, Plaintiff have not been paid in full for the damages to the Property. Defendant inspected the property and did not issue a payment to Plaintiff for the damages Defendant multiple occasions failed to properly inspect the property and failed to properly scope the loss by intentionally ignoring areas of damage and turning a blind eye to the true extent of the loss. Defendant set about to deny and/or underpay on properly covered damages. As a result of Defendant’s unreasonable investigation of the claim, including not providing full coverage for the damages sustained by Plaintiffs, as well as under scoping the damages during its investigation and thus denying adequate and sufficient payment to Plaintiff to repair the PropertyPlaintiff’s claim was improperly adjusted. The mishandling of Plaintiff’sclaim has also caused a delay in Plaintiff’s ability to fully repair the Property, which has resulted in additional damages. To this date, Plaintiff have yet to receive the full payment to which theyare entitled under the Policy. Defendantwrongfully denied Plaintiff’s claim for repairs of the Property, even though the Policy provided coverage for losses such as those suffered by Plaintiffs. Furthermore, LAINTIFF RIGINAL ETITION age of Defendant underpaid some of Plaintiff’s claims by not providing full coverage for the damages sustained by Plaintiffs, as well as under scoping the damages during its investigation. Defendant failed to perform its contractual duties to adequately compensate Plaintiff under the terms of the Policy. Specifically, it refused to pay the full proceeds of the Policy, although due demand was made for proceeds to be paid in an amount sufficient to cover the damaged property, and all conditions precedent to recovery upon the Policy had been carried out and accomplished by the PlaintiffsDefendant’s conduct constitutes a breach of the insurance contract between Defendantand Plaintiffs Defendant misrepresented to Plaintiff that certaindamage to the Property was not covered under the Policy, even though the damage was caused by a covered occurrence. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. ODE§541.060(a)(1). Defendant failed to make an attempt to settle Plaintiff’s claim in a fair manner, although they were aware of their liability to Plaintiff under the Policy. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. ODE§541.060(a)(2)(A). Defendant failed to explain to Plaintiff the reasons for their offer of an inadequate settlement. Specifically, Defendant failed to offer Plaintiff adequate compensation, without any or adequateexplanation why full payment was not being made. Furthermore, Defendant did not communicate that any future settlements or payments would be forthcoming to pay for the entire losses covered under the Policy, nor did they provide any or adequate explanation for the failure to adequately settl Plaintiff’s claim. Defendant’s LAINTIFF RIGINAL ETITION age of conduct is a violation of the Texas Insurance Code, Unfair Settlement Practices. ODE§541.060(a)(3). Defendant failed to affirm or deny coverage of Plaintiff’s claim within a reasonable time. Specifically, Plaintiff did not receive timely indication of acceptance or rejection, regarding the full and entire claim, in writing from Defendant. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. ODE §541.060(a)(4). Defendant refused to fully compensate Plaintiffs, under the terms of the Policy, even though Defendant failed to conduct a reasonable investigation. Specifically, Defendant performed an outcome oriented investigation of Plaintiff’s claim, which resulted in a biased, unfair, and inequitable evaluation of Plaintiff’s losses on the Property. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. ODE§541.060(a)(7). Defendant failed to meet its obligations under the Texas Insurance Code regarding unfair claim settlement practices that are prohibited under § 542.003, including compelling a policyholder to institute a suit to recover an amount due under the Policy by offering substantially less than the amount ultimately recovered in a suit brought by the policyholder. ODE § 542.003(b)(5). Defendant failed to meet its obligations under the Texas Insurance Code regarding timely acknowledging Plaintiff’s claim, beginning an investigation of Plaintiff’s claim, and requesting all information reasonably necessary to investigate Plaintiff’s claim, within the statutorily mandated time of receiving notice of Plaintiff’s claimDefendant’s conduct LAINTIFF RIGINAL ETITION age of constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. ODE Defendant failed to accept or deny Plaintiff’s full and entire claim within the statutorily mandated time of receiving all necessary information. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. ODE Defendant failed to meet its obligations under the Texas Insurance Code regarding payment of claim without delay. Specifically, it has delayed full payment of Plaintiff’s claim longer than allowed and, to date, Plaintiff not received full payment for the claim. Defendant’s conduct constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. ODE From and after the time Plaintiff’s claim was presented to Defendant, the liability of Defendantto pay the full claim in accordance with the terms of the Policy was reasonably clear. However, Defendant has refused to pay Plaintiff in full, despite there being no basis whatsoever on which a reasonable insurance company would have relied to deny the full payment. Defendant’s conduct constitutes a breach of the common law duty of good faith and fair dealing. Defendant knowingly or recklessly made false representations, as described above, as to material facts and/or knowingly concealed all or part of material information from Plaintiffs As a result of Defendant’s wrongful acts and omissions, Plaintiff wereforced to retain the professional services of the attorney and law firm for representation with respect to these causes of action. LAINTIFF RIGINAL ETITION age of CAUSES OF ACTION Defendant liable to Plaintiff for intentional breach of contract, as well as intentional violations of the Texas Insurance Code and Deceptive Trade Practices Act, intentional breach of the common law duty of good faith and fair dealing, and common law fraud. BREACH OF CONTRACT The Policy is a valid, binding, and enforceable contract between Plaintiff and Defendant. Defendant’s conduct constitutes a breach of the insurance contract made between Defendant and Plaintiffs Defendant’s failure and/or refusal, as described above, to pay the adequate compensation as it is obligated to do under the terms of the Policy in question, and under the laws of the State of Texas, constitutes a breach of Defendant’s surance contract with Plaintiffs The Defendant’s breach proximately caused Plaintiff’sinjuries and damages. All conditions precedent required under the Policy have been performed, excused, waived, or otherwise satisfied by the Plaintiffs NONCOMPLIANCE WITH TEXAS INSURANCE CODE: UNFAIR SETTLEMENT PRACTICES Defendant’s conduct constitutes multiple violations of the Texas Insurance Code, Unfair Settlement Practices. ODE §541.060(a All violations under this article are made actionable by ODE §541.151. Defendant’s unfair settlement practice, as described above, of misrepresenting to Plaintiff material facts relating to the coverage at issue, constitutes an unfair method of competition and an unfair and deceptive act or practice in the business of insurance. ODE §541.060(a)(1). LAINTIFF RIGINAL ETITION age 7 of Defendant’s unfair settlement practice , as described above, of failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim, even though Defendant liability under the Policy was reasonably clear, constitutes an unfair method of competition and an unfair and deceptive act or practice in the business of insurance. ODE §541.060(a)(2)(A). Defendant’s unfair settlement practice , as described above, of failing to promptly provide the Plaintiff with a reasonable explanation of the basis in the Policy, in relation to the facts or applicable law, for its offer of a compromise settlement of the claim, constitutes an unfair method of competition and an unfair and deceptive act or practice in the business of insurance. ODE §541.060(a)(3). Defendant’s unfair settlement practice , as described above, of failing within a reasonable time to affirm or deny coverage of the claim to Plaintiffs, or to submit a reservation of rights to Plaintiffs, constitutes an unfair method of competition and an unfair and deceptive act or practice in the business of insurance. ODE§541.060(a)(4). Defendant’s unfair settlement practice , as described above, of refusing to pay Plaintiff’s claim without conducting a reasonable investigation, constitutes an unfair method of competition and an unfair and deceptive act or practice in the business of insurance. ODE §541.060(a)(7). Defendant’s unfair settlement practices, as described above, of compelling Plaintiff to file a lawsuit to recover amounts due under the Policy by offering substantially less than the amount ultimately recovered in Plaintiff’s lawsuit against Defendant, constitutes an unfair method of competition and unfair and deceptive act or practice in the business of insurance. ODE § 542.003(b)(5). LAINTIFF RIGINAL ETITION age of Each of the foregoing unfair settlement practices were completed knowingly by the Defendant andwere a producing cause of Plaintiff’sinjuries and damages. NONCOMPLIANCE WITH TEXAS INSURANCE CODE: THE PROMPT PAYMENT OF CLAIMS The Claim is a claim under an insurance policy with the Defendant of which Plaintiff gave proper notice. The Defendant is liable for the Claim. Defendant’s conduct constitutes multiple violations of the Texas Insurance Code, Prompt Payment of Claims. All violations made under this article are made actionable by ODE §542.060. Defendant’s failure to acknowledge receipt of Plaintiff’s claim, commence investigation of the claim, and/or request from Plaintiff all items, statements, and forms that it reasonably believed would be required within the applicable time constraints, as described above, constitutes a non-prompt payment of claims and a violation of T ODE §542.055. Defendant’s failure to notify Plaintiff in writing of its acceptance or rejection of the claim within the applicable time constraints, constitutes a non prompt payment of the claim. ODE §542.056. Defendant’s delay of the payment of Plaintiff’s claim following its receipt of all items, statements, and forms reasonably requested and required, longer than the amount of time provided for, as described above, constitutes a non prompt payment of the claim. ODE §542.058. Each of the foregoing unfair settlement practices were completed knowingly by the Defendant andwere a producing cause of Plaintiff’sinjuries and damages. BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING LAINTIFF RIGINAL ETITION age 9 of The Defendant breached the common law duty of good faith and fair dealing owed to Plaintiff by denying or delaying payment on the Claim when Defendant knew or should have known that liability was reasonably clear. Defendant’s failure, as described above, to adequately and reasonably investigate and evaluate Plaintiff’s claim, although, at that time, Defendant knew or should have known by the exercise of reasonable diligence that its liability was reasonably clear, constitutes a breach of the duty of good faith and fair dealing. Defendant’s conduct proximately caused Plaintiff injuries and damages. VIOLATION OF TEXAS DECEPTIVE TRADE PRACTICES ACT Defendant s conduct violated the Texas Deceptive Trade Practices Act, TEX. BUS. & COM. CODE § 17.41, et seq. (hereinafter the DTPA”)by engaging in “false, misleading or deceptive acts and practices.” Plaintiff is “consumer[s]” in that Plaintiff acquired goods and/or services by purchase, and the goods and/or services form the basis of this action. The Defendant committed numerous violations of the Texas DTPA, insofar as Defendant: Represented that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have; Represented that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; Failed to disclose information concerning goods or services which was known at the time of the transaction when such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; Generally engaged in unconscionable courses of action while handling the Claim; and/or Violated the provisions of the Texas Insurance Code described herein. LAINTIFF RIGINAL ETITION age of The Defendant took advantage of the Plaintiff’s lack of knowledge, ability, experience or capacity to a grossly unfair degree and to the Plaintiff detriment. The Defendant’s acts also resulted in a gross disparity between the value received and the consideration paid in a transaction involving the transfer of consideration. As a result of the Defendant’s violations of the DTPA Plaintiff suffered actual damages. In addition, the Defendant committed the above acts knowingly and/or intentionally, entitling Plaintiff to three times Plaintiff’sdamages for economic relief. COMMON LAW FRAUD Defendant is liable to Plaintiff for common law fraud. Each and every one of the representations, as described above, concerned material facts for the reason that absent such representations, Plaintiff would not have acted as they did, and which Defendant knew were false or made recklessly without any knowledge of their truth as a positive assertion. The statements were made with the intention that they should be acted upon by Plaintiffs who in turn acted in reliance upon the statements, thereby causing Plaintiff to suffer injury and constituting common law fraud. The Defendant knowingly or recklessly made false representations as to material facts and/or knowingly concealed all or part of material information from Plaintiff with the intent of inducing Plaintiff to accept a denial and/or underpayment of insurance benefits. The Defendant allowed Plaintiff to use this information, or lack thereof, in justifiable reliance in accepting the denial and/or underpayment. Plaintiff relied upon said statements in accepting the denial and/or underpayment of the Claim andsuffered injury as a result. DAMAGES LAINTIFF RIGINAL ETITION age of Upon the trial of this case, it shall be shown Plaintiff sustained damages as a result of Defendant s conduct. Plaintiff respectfully request the Court and jury award the amount of loss Plaintiff have incurred in the past and will incur in the future. There are certain elements of damages to be considered separately and indiviually for the purpose of determining the sum of money that would fairly and reasonably compensate Plaintiff for injuries, damages, and losses incurred and to be incurred. From the date of the occurrence in question until the time of trial of this cause, Plaintiff seek every element of damage allowed by Texas law with respect to the causes of action mentioned above, including but not l mited to Plaintiff’s actual damages, policy benefits, pre judgment interest, post judgme interest, consequential damages, court costs, attorneys’ fees, treble damages, statutory interest, and exemplary damages. Plaintiff would show that all the aforementioned acts, taken together or singularly, constitute the producing causes of the damages sustained by Plaintiffs The damages caused by the occurrence have not been properly addressed or repaired in the months since the storm, causing further damages to the Property, and causing undue hardship and burden to Plaintiffs. These damages are a direct result of Defendant’s mishandling of Plaintiff’sclaim in violation of the laws set forth above. For breach of contract, Plaintiff is entitled to regain the benefit of the bargain, which is the amount of the claim, together with attorney’s feesand pre judgment interest For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff entitled to actual damages, which include the loss of the benefits that should have been paid pursuant to the policy, mental anguish, court costs, and attorney's fees. For knowing LAINTIFF RIGINAL ETITION age of conduct of the acts described above, Plaintiff ask for three times actual damages. ODE For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is entitled to the claim amount, as well as eighteen (18) percent interest per annum on the amount of such claim as damages, together with attorney's fees. ODE For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to compensatory damages, including all forms of loss resulting from the insurer's breach of duty, such as additional costs, economic hardship, losses due to nonpayment of the amount the insurer owed, exemplary damages, and damages for emotional distress. For violations of the Deceptive Trade Practices Act, Plaintiff is entitled to recover actual damages and up to three times Plaintiff’s damages for economic relief, along with attorney’s fees, interest and court costs. For fraud, Plaintiff is entitled to recover actual damages and exemplary damages for knowingly fraudulent and malicious representations, along with attorney’s fees, interest, and court costs. For the prosecution and collection of this claim, Plaintiff have been compelled to engage the services of the attorney whose name is subscribed to this pleading. Therefore, Plaintiff entitled to recover a sum for the reasonable and necessary services of Plaintiff’s attorney in the preparation and trial of this action, including any appeals to the Court of Appeals and/or the Supreme Court of Texas. Plaintiff has also incurred Additional Living Expenses pursuant to Coverage D of the Policy, including expenses incurred for lodging, and the pack out and storage of contents LAINTIFF RIGINAL ETITION age of located within the Property. Plaintiff is entitled to recover additional sums for these expenses pursuant to Coverage D of the Policy. Plaintiff is not making any claims for relief under federal law. JURY DEMAND Plaintiff request a jury trial and have tendered any and all requisite fees for such along with the filing of this Plaintiff’s Original Petition. REQUESTFOR DISCLOSURE Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is requested to disclose, within fifty (50) days of service of this request, the information described in Rule 194.2(a)-(l). REQUEST FOR MEDIATION Pursuant to Rule 541.161 of the Texas Insurance Code, Plaintiff requests a mediation within 90 days of Defendant’s receipt of this petition by a magistrate judge agreed upon by the parties. RAYER WHEREFORE, Plaintiff respectfully request that final judgment be rendered for the Plaintiff as follows: Judgment against Defendant for actual damages in an amount to be determined by the jury; Statutory benefits; Treble damages; Exemplary and punitive damages; Pre-judgment interest as provided by law; Post-judgment interest as provided by law; LAINTIFF RIGINAL ETITION age of Attorneys’ fees; Costs of suit; Such other and further relief to which Plaintiff may be justly entitled. Respectfully Submitted, By: Michael E. Cooper Texas Bar No. 24131142 Email: mcooper@hodgefirm.com Shaun W. Hodge Texas Bar No. 24052295 Email: shodge@hodgefirm.com HE ODGE AW IRM PLLC The Historic Runge House 1301 Market Street Galveston, Texas 77550 Telephone: (409) 762-5000 Facsimile: (409) 763-2300 ATTORNEYS FOR PLAINTIFF TREY JENNINGS LAINTIFF RIGINAL ETITION age of