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Filed
4/9/2024 5:16 PM
Dwight D. Sullivan
County Clerk
Galveston County, Texas
PR-0084851-A
CAUSE NO.:
THE ESTATE OF CURTIS EDWARD IN THE PROBATE COURT
MARK, DECEASED, BY AND
THROUGH IS INDEPENDENT
ADMINISTRATOR AND FOR AND
ON BEHALF OF ALL PERSONS
ENTITLED TO RECOVER UNDER
THE TEXAS WRONGFUL DEATH
ACT AND CHARMAINE E. MARK
Plaintiff(s),
vs.
DUSTIN CURTIS CLARK, SHELBY
MCGIBONEY, CKM INDUSTRIES,
INC., MILLER ENVIRONMENTAL
SERVICES, LLC., INDIVIDUALLY
AND DOING BUSINESS AS MILLER GALVESTON COUNTY, TEXAS
INTEGRATED SOLUTIONS, MES
PARTNERS, INC., AND ZURICH
AMERICAN INSURANCE COMPANY
Defendant(s).
PLAINTIFFS’ ORIGINAL PETITION
COME NOW Plaintiffs, The Estate of Curtis Edward Mark, deceased, by and through
its Independent Administrator and for and on behalf of all persons entitled to recover under
the Texas Wrongful Death Act and Charmaine E. Mark and file this Petition complaining of
Dustin Curtis Clark, Shelby McGiboney, CKM Industries, Inc., Miller Environmental
Services, LLC., individually and doing business as Miller Integrated Solutions, MES
Partners, Inc., and Zurich American Insurance Company, hereinafter collectively referred to
as “Defendants,” and would show unto this Honorable Court and Jury as follows:
LEVEL DESIGNATION
1. In accordance with Rule 190.1, discovery shall be conducted under Level 3. Plaintiffs state
that this suit is for monetary relief aggregating in excess of $50,000 and not controlled by
Level 1 Discovery Control Plan. Plaintiffs anticipate the parties may be able to enter into
a Level 2 Discovery Control Plan, and/or in the alternative, may submit a Discovery
Control Plan tailored to the circumstances of this specific case for the Court’s
consideration or discretion. In accord with Texas Rules of Civil Procedure 47, Plaintiffs
allege that this is a claim for only monetary relief in a sum over $1,000,000.00 and a
demand for judgment for all other relief to which the Plaintiffs may show themselves to be
entitled, including but not limited to damages of any kind, penalties, costs, expenses, pre-
judgment interest, and attorney fees. Plaintiffs would show that The Rules of Civil
Procedure require Plaintiffs to set forth such demand or claim but that Plaintiffs represents
that the Jury and/or Trier of Fact are charged with such final determination and Plaintiffs
does not seek to represent or assert that the Rules of Civil Procedure Plaintiffs are required
to honor in any way take away or impugn the rights, duties and/or obligations of the Jury
or Trier of Fact.
VENUE AND JURISDICTION
2. The present Court has personal and subject matter jurisdiction over the parties as such
causes of action relate to the Probate Proceeding pending the Statutory Probate Court in
accord with §32.007 of Texas Estate Code. The jurisdiction of this Probate Court is
concurrent with any other Court that has jurisdiction. See id. Tex. Est. Code §32.005
3. Venue is also proper in the present forum as the Statutory Probate Court of Galveston
County, Texas, has exclusive original probate jurisdiction over matters related to the
probate proceedings. Texas Government Code §25.0861(b).
4. In addition to and/or in the alternative, one or more of the events and/or causes of action
upon which this cause is based arose out of and/or were to be performed in Galveston
County, Texas.
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PARTIES
5. Plaintiffs, The Estate of Curtis Edward Mark, deceased, by and through its Administrator,
Diane Holmes. It is represented that Diane Holmes is the maternal grandmother of
Charmaine E. Mark. The last three digits of Diane Holmes’ Social Security Number are
082. The last three digits of her Texas Driver’s License are 754.
6. Plaintiffs, All Persons Entitled to Recover for His Death Under The Texas Wrongful Death
Act and/or Charmaine E. Mark, surviving daughter of decedent Curtis Edward Mark by
nd through the Administrator and brings this suit under Sections 71.001 et seq. of the
Texas Civil Practice and Remedies Code on behalf of and for the benefit of all statutory
beneficiaries of decedent.
7. Plaintiff, Charmaine E. Mark, Individually, is a resident of La Marque, Galveston
County, Texas. The last three digits of Charmaine E. Mark’s Social Security Number are
119.
8. Defendant Dustin Curtis Clark is an individual who is a resident of Brazoria County,
Texas who may be served with process at his residence located at 213 N. Austin Drive,
Holiday Lakes, Brazoria County, Texas 77515.
SERVICE IS REQUESTED AT THIS TIME
9. Defendant Shelby McGiboney is an individual who is a resident of Brazoria County,
Texas who may be served with process at her residence located at 15027 Quail Ridge Rd.,
Apt 213, Danbury, Brazoria County Texas 77534.
SERVICE IS REQUESTED AT THIS TIME
10. Defendant CKM Industries, Inc., is a company doing business in Texas located at 629
Howard Dr., Deer Park, Harris County, Texas, which has identified CT Corporation
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System as its registered agent to accept service on its behalf. Service is requested upon
such defendant as follows:
CKM Industries, Inc.
C/O: CT Corporation System
1999 Bryan St. Ste. 600
Dallas, Texas 75201-3136 USA
SERVICE IS REQUESTED AT THIS TIME
11. Defendant Miller Environmental Services, LLC., individually and doing business as
Miller Integrated Solutions is a company doing business in Texas located at 2420
Pasadena. Freeway, Pasadena Texas, and/or 629a Howard Drive, Deer Park Texas
77536which has identified CT Corporation System as its registered agent to accept service
on its behalf. Service is requested upon such defendant as follows:
Miller Environmental Services, LLC., individually and
doing business as Miller Integrated Solutions
C/O: CT Corporation System
1999 Bryan St. Ste. 600
Dallas, Texas 75201-3136 USA
SERVICE IS REQUESTED AT THIS TIME
12. Defendant MES Partners, Inc, is a company doing business in Texas located at 2420
Pasadena Freeway, Pasadena Texas, and/or 629 Howard Drive, Deer Park Texas 77536-
2610 USA which has identified CT Corporation System as its registered agent to accept
service on its behalf. Service is requested upon such defendant as follows:
MES Partners, Inc.
C/O: CT Corporation System
1999 Bryan St. Ste. 600
Dallas, Texas 75201-3136 USA
SERVICE IS REQUESTED AT THIS TIME
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13. Defendant Zurich American Insurance Company is an insurance company doing
business in Texas which has identified Corporation Service Company as its registered
agent to accept service on its behalf. Service is requested upon such defendant as follows:
Zurich American Insurance Company
C/O: Corporation Service Company
211 E 7th St., Ste. 620
Austin, Texas 78701-3218
SERVICE IS REQUESTED AT THIS TIME
MISNOMER AND ALTER EGO
14. In the event any parties are misnamed or not included herein, it is Plaintiffs’ contention
that such was a misnomer and/or such parties are and/or were alter egos of parties named
herein. Specifically, it is Plaintiff’s intent to bring suit against the employers of Curtis
Edward Mark, deceased, jointly severally, singularly and/or together in any manner, who
are believed to be defendants CKM Industries, Inc., Miller Environmental Services,
LLC., individually and doing business as Miller Integrated Solutions and MES
Partners, Inc., whose motor vehicle was being operated and in whose control and service
Curtis Edward Mark, deceased, was performing and in whose business he was
furthering.
BACKGROUND FACTS AND ALLEGATIONS
15. On or about September 11, 2023, Curtis Edward Mark, deceased, was tragically injured
and killed as a proximate result of a motor vehicle collision.
16. At the time, date and on the occasion of such incident, Curtis Edward Mark, deceased, was
in service to and/or operating in the course and course of his employment with Defendants
CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing
business as Miller Integrated Solutions and MES Partners, Inc., jointly severally,
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singularly and/or together in any capacity and was subject to the control and direction of
such Defendants.
17. Curtis Edward Mark, deceased was operating 2013 Freightliner towing a 2013 Clement
Industries trailer in a northbound direction on FM 2004 at and/or near the intersection of
CR 208 in Brazoria County, Texas, when he was involved in a motor vehicle collision with
a 2010 Dodge Avenger operated by Defendant Dustin Curtis Clark.
18. The Defendant Dustin Curtis Clark was traveling in an eastward direction on CR 208 and
disregarded a stop sign governing the direction of his motor vehicle, failed to yield the
right of way, was operating a motor vehicle while under the influence of a controlled
substance and/or alcohol and/or was otherwise impaired, among other things, proximately
resulting in a collision with the motor vehicle operated by Curtis Mark Edwards,
deceased,
19. The vehicle operated by Defendant Dustin Curtis Clark was entrusted to him for
operation on the public streets and thoroughfares of the State of Texas by such vehicle’s
owner, Defendant Shelby McGiboney, who knew and/or should have known of Defendant
Dustin Curtis Clark’ impaired status and/or that he was a reckless and dangerous driver
at the time, date and on the occasion of the incident made the basis of this suit
20. Pleading further, in addition to and/or in the alternative, Defendant Dustin Curtis Clark
did not have a valid operator’s license at the time of the incident made the basis of this suit
and/or such license had been suspended and/or was restricted.
21. At all times material hereto, the motor vehicle operated by Curtis Edward Mark was
owned and/or maintained by his employer, CKM Industries, Inc., Miller Environmental
Services, LLC., individually and doing business as Miller Integrated Solutions and
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MES Partners, Inc., in whose service and employment he was operating such motor
vehicle.
22. As approximate result of the collision and/or incident made the basis of this claim, Curtis
Edward Mark, deceased, was proximately caused to suffer injury and his untimely death
and the damages about which Plaintiffs’ herein complain.
23. Curtis Edward Mark, deceased, would have had a cause of action for negligence against
Defendants, jointly severally, singularly and/or together in any manner, had decedent
survived.
CLAIMS OF NEGLIGENCE AND GROSS NEGLIGENCE AGAINST DEFENDANTS
24. Plaintiff would show that the incident and injuries and damages giving rise to this incident
were proximately caused by the negligence and/or gross negligence of the Defendants,
jointly severally, singularly and/or together in any manner. The actions and omissions of
the Defendants, jointly severally, singularly and/or together in any manner, constitute
negligence and/or gross negligence which proximately resulted in injuries and damages
being suffered by Plaintiffs.
25. Pleading further and/or in the alternative, the above described collision which is the basis
of this suit, was proximately caused by the negligence and/or gross negligence of
Defendant Dustin Curtis Clark and/or Defendant Shelby McGiboney, jointly, severally,
singularly and/or together in any manner in one or more of the following particulars that
include but are not limited to:
Failure to stop for and/or disregard of a stop sign;
Failure to have valid operators driver’s license
Failure to provide notice;
Failure to provide warning;
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Failure to keep proper lookout;
Failure to provide notice or warning;
Failure to pay proper attention;
Allowing self to be distracted in operation of motor vehicle due to use or of mobile or
cellular phone;
Allowing self to be distracted in operation of motor vehicle due to texting;
Allowing self to be distracted in operation of motor vehicle due to use of social media on
cellular or mobile phone;
Failure to control speed of vehicle;
Failure to control operation of the vehicle;
Failure to operate vehicle in a safe manner;
Failure to timely brake the speed of the vehicle;
Failing to maintain a safe and assured clear distance;
Failing to stop motor vehicle without striking another vehicle from the rear;
Failure to operate the vehicle as a person of ordinary prudence would have under the same
or similar circumstance;
Operating a motor vehicle while under the influence and/or intoxicated and/or while
impaired;
Failing to avoid a collision,
Failure to train;
Failure to instruct;
Failure to supervise;
Failure to monitor;
Negligent supervision; and,
Negligent entrustment, among other things
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26. Pleading further and/or in addition, the actions and/or omissions of Defendant Dustin
Curis Clark were in violation of the Texas Transportation Code and such actions or
omissions constitute negligence which proximately resulted in the incident made the basis
of this suit. Such violations include but are not limited to:
1. Violating Texas Transportation Code Section 545.062(a) by failing to keep an assured
clear distance;
2. Violating Texas Transportation Code Section 545.351(a) and 545.351(b) by driving at a
speed greater than reasonable and prudent under the circumstances then existing;
3. Violating Texas Transportation Code Section 545.408(a)(3) by failing to apply the
brakes properly and/or timely as a result of the incident made the basis of this suit;
4. Violating Transportation Code Section 545.151 et sequ., by failing to comply with
traffic control device (Disregard traffic signal);
5. Violating Texas Penal Code Title 10 Chapter 49.04 by driving or operating a vehicle
while intoxicated and/or while under the influence of intoxicating alcohol and while his
senses and skills were impaired.
6. Violating Texas Transportation Code 545.401 by driving a vehicle in wilful or wanton
disregard for the safety of persons or property;
27. Each of the foregoing acts and/or omissions taken together or individually, constitutes
negligence and each proximately caused the collision and the injuries and damages
sustained by Plaintiffs. Moreover, the by violating the transportation and/or penal code as
set out above, the actions and/or omissions of Defendant Dustin Curtis Clark constitute
negligence as a matter of law.
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28. Pleading further and/or in the alternative, the above described collision which is the basis
of this suit, was proximately caused by the negligence and/or gross negligence of
Defendants CKM Industries, Inc., Miller Environmental Services, LLC., individually
and doing business as Miller Integrated Solutions and MES Partners, Inc., in one or
more of the following manners that include but are not limited to:
1. Exposure of their employee to unnecessary hazards;
2. Failure to enact appropriate safety measures;
3. Failure to provide adequate equipment;
4. Failure to maintain equipment;
5. Failure to provide a safe working environment;
6. Failure to properly supervise the working environment;
7. Failure to provide alternate routes of travel;
8. Controlling or directing the route of travel;
9. Failure to provide adequate training;
10. Failing to warn Plaintiff of the dangers associated with task
11. Failing to warn Plaintiff of dangers associated with the work
environment to which he was exposed;
12. Failure to police or inspect the dangers associated with the work
environment
13. Placing Plaintiff in a dangerous position and/or failing to act as a
reasonable person in preventing harm;
14. Failure to remove, eliminate or abate the dangerous conditions
which existed at all times material hereto;
15. Failure to adequately supervise;
16. Failure to monitor the work environment;
17. Failure to adequately instruct;
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18. Failure to adequately train;
19. Failure to adequately monitor;
20. Failure to warn of dangerous activity and/or condition;
21. Failure to properly oversee safety in the work environment;
18. Failure to regulate activities;
19. Failure to provide notice; and,
20. other acts deemed negligent and grossly negligent, among other
things.
29. Plaintiff reserves the right to add and/or supplement as discovery and/or information
becomes available or is discovered.
30. Each of the foregoing acts and/or omissions taken together or individually, constitutes
negligence and/or gross negligence by Defendants, jointly severally, singularly and/or
together in any manner and were the proximate cause of Curtis Edward Mark’s injuries
and tragic and unnecessary death.
31. Plaintiffs reserve the right to add and/or amend actions and/or omissions of negligence
and/or gross negligence as such are made known through discovery.
CAUSE OF ACTION AGAINST ZURICH AMERICAN INSURANCE COMPANY,
DECLARATORY RELIEF-ACTION FOR UNINSURED AND/OR UNDERINSURED
BENEFITS AND/OR PERSONAL INJURY PROTECTION BENEFITS
32. Plaintiff adopts and incorporates as if fully set forth at length herein paragraphs 1-30.
33. Plaintiff would show that the employers of Curtis Edward Mark, deceased, purchased
and obtained and paid premiums for uninsured, underinsured motorist protection benefits
and personal injury protection benefits from and to Defendant Zurich American
Insurance Company (hereinafter referred to as “Zurich”) who issued a policy of reported
to be policy number 7408466 and/or 7409466, and/or Curtis Edward Mark, deceased
and/or Plaintiffs would be beneficiaries.
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34. The contract and/or its terms, in whole or in part were to be performed in Galveston
County, Texas.
35. Notice of the accident, injuries and event which proximately caused injury and loss of life
to Curtis Edward Mark, deceased were provided to Defendant Zurich. Subsequently a
claim and/or claims was/were opened and assigned claim number(s) 4100009678 and/or
4720154440.
36. Notice of the absence of coverage of Defendant(s) Dustin Curtis Clark and/or Shelby
McGiboney and/or the insufficient limits of such coverage amounts were provided to
Defendant Zurich.
37. Demand for payment of proceeds available pursuant to the uninsured and/or under insured
and/or personal injury protection benefit portions of the policy was presented.
38. Plaintiffs would show that the Defendant Zurich American Insurance Company,
willingly accepted and took payment of premiums for the coverages which would insure
Curtis Edward Mark, deceased, and/or Plaintiffs and/or in the alternative, Curtis
Edward Mark, deceased, was a beneficiary of such policies for such coverage benefits
for which premium payments were made.
39. The conditions precedent to the contract entered by and between Defendant Zurich and the
Plaintiffs have been performed.
40. However, after receipt of proper and reasonable demand, Defendant Zurich has
unjustifiably and/or unreasonably failed to pay benefits owing, comply with the terms and
conditions of the contract and with the express and implied warranties, guarantees, and
representations to the detriment of Plaintiffs.
41. By virtue of the above referenced policy(ies) Defendant Zurich promised in relevant part
to properly evaluate claims made for coverage and pay such the benefit and/or coverage
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amounts that a covered person is legally entitled to recover from the owner and/or operator
of any uninsured and/or underinsured motor vehicle because of bodily injury sustained by
a covered person or property damage caused by such accident or event.
42. On or about the date of the incident referenced above, during the effective period for which
coverage was provided Plaintiffs under the policy of insurance benefits issued by
Defendant Zurich, Curtis Edward Mark, deceased and/or the Plaintiffs were caused to
be severely injured by the negligence and/or gross negligence of third party or third parties.
The impact occurred with such force that Curtis Edward Mark, deceased, suffered
serious bodily injury and/or death. Plaintiffs further allege that Defendant(s) Dustin
Curtis Clark and/or Shelby McGiboney were uninsured and/or underinsured and
Defendant Zurich through its actions and/or omissions is heretofore estopped to deny that
Curtis Edward Mark, deceased was struck and injured by an uninsured and/or
underinsured motorist and/or driver for which Plaintiffs should be paid the benefits of the
coverages for uninsured and/or underinsured motorist protection benefits and/or personal
injury protection benefits.
43. As a proximate result of such actions, omissions and /or conduct, Plaintiff has been
damaged in a sum within the jurisdictional limits of the Court.
44. Pleading further, Plaintiffs contend that Defendant Zurich is responsible to Plaintiffs for
the benefits of the coverage of and from the policy(ies) of insurance protection purchased
to provide coverage for Curtis Edward Mark, deceased, and/or Plaintiffs and/or for
which Curtis Edward Mark, deceased and/or Plaintiffs are beneficiaries and/or which
Plaintiffs present this claim for damages in a sum withing the jurisdictional limits of the
Court.
UNINSURED MOTORIST/UNDERINSURED MOTORIST AND PERSONAL INJURY
PROTECTION BENEFITS’ CLAIM
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45. Pleading further, in addition to and/or in the alternative, Plaintiff would show that the
employers of Curtis Edward March, deceased purchased and obtained and paid
premiums from and to Defendant Zurich who issued a policy of reported to be policy
number 7408466 and/or 7409466. The contract and/or its terms, in whole or in part were
to be performed in Galveston County, Texas. Notice of the accident and injuries were
provided to Defendant Zurich. A claim file was established bearing claim number
4100009678 and/or 4720154440. Notice of the absence of coverage of Defendants
Dustin Curtis Clark and/or Shelby McGiboney and/or the insufficient limits of such
coverage amounts were provided to Defendant Zurich. Demand for payment of proceeds
available pursuant to the uninsured and/or under insured portion and personal injury
protection benefits of the policy was presented. Copies of medical, records, patient
account charges and evidence of the insufficient amount of motorists coverage maintained
by the Defendants Dustin Curtis Clark and/or Shelby McGiboney, above referenced,
were provided for evaluation and review. Unfortunately, Defendant Zurich has failed to
heed the demand and requests and has opted to disregard and/or offer less, and/or evaluate
these claims in manner that is reasonable and fair and/or provide an evaluation and
compensation as is required pursuant to the policy of coverage.
BREACH OF CONTRACT
46. Pleading further, in addition to and/or in the alternative, Plaintiff would show that the
Defendant Zurich willingly accepted and took payment of premiums for the coverages
which would insure Curtis Edward Mark, deceased, and/or Plaintiffs and/or in the
alternative , Curtis Edward Mark, deceased, was a beneficiary of such policies for such
coverage benefits for which premium payments were made. The conditions precedent to
the contract entered by and between Defendant Zurich and the Plaintiffs has been
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performed. However, after receipt of proper and reasonable demand, Defendant Zurich
has unjustifiably and/or unreasonably breached the contract and failed to pay benefits
owing, comply with the terms and conditions of the contract and with the express and
implied warranties, guarantees, and representations to the detriment of Plaintiffs. As a
proximate result of such actions, omissions and /or conduct, Plaintiffs have been damaged
in a sum within the jurisdictional limits of the Court.
DECEPTIVE TRADE-CONSUMER PROTECTION ACT AND
BAD FAITH INSURANCE PRACTICES
47. Pleading further, in addition to and/or in the alternative, Plaintiffs would further show that
Defendant Zurich was provided at least a 60 day written notice advising of the complaints
and damages incurred, the absence and/or insufficiency of coverage available by and/or
through Defendant(s) Dustin Curtis Clark and/or Shelby McGiboney above referenced,
his entitlement to receipt of benefits by and through the uninsured and/or under insured
motorist insurance coverage and/or personal injury benefits of such policy of coverage
and/or in the alternative, claims of breach of contract, violations of the Deceptive Trade –
Consumer Protection Act, Bus. & Com. Code §17.45, et seq., and violations for Bad Faith
Insurance Practices pursuant to Article 541 et seq., of the Insurance Code of the State of
Texas by Defendant Zurich. Regardless, Defendant Zurich has unreasonable and/or
unjustifiably failed, refused, and/or intentionally, knowingly, and wrongfully failed to pay
the benefits of the insurance policy to which Plaintiff is rightfully entitled. As a result of
their actions, omissions, and/or conduct, Defendant Zurich is liable to Plaintiff for actual
and additional damages, inclusive of but not limited to, exemplary damages as provided by
law and in a sum within the jurisdictional limits of the Court.
48. Pleading further, Plaintiffs would show that as a result of the actions, omissions and/or the
conduct of the Defendant Zurich and the damages and injuries suffered by Plaintiffs, the
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Plaintiffs have been forced to employ the attorney whose name appears on this pleading for
the purpose of prosecution and collection of the claim. Plaintiffs are, therefore, entitled to
recover of and from such Defendant Zurich an additional sum to compensate Plaintiffs for
a reasonable fee for such attorney’s services in the preparation and prosecution of this
action, as well as a reasonable fee any appeals to other Courts.
DAMAGES
49. As a direct and proximate result of negligence of the Defendants Dustin Curtis Clark,
Shelby McGiboney, CKM Industries, Inc., Miller Environmental Services, LLC.,
individually and doing business as Miller Integrated Solutions, MES Partners, Inc
acting jointly, severally, singularly, and/or together in any manner, Plaintiff(s), would
show that Curtis Edward Mark, deceased suffered severe bodily injuries and suffered
horrendous physical pain and mental anguish before his untimely passing due to this
incident. Plaintiff(s) would show that at the time of the incident made the basis of this suit,
Curtis Edward Mark, deceased, was born on August 24, 1974 and had reached the age of
48 years when he was caused to suffer his untimely death.
50. Pleading further, the period life tables reflect that Curtis Edward Mark, deceased,
reasonably could have expected additional life expectancy of at least another thirty-two
and four tenths (32.4) years but for the incident made the basis of this suit. Pleading
further, it is alleged that Curtis Edward Mark, deceased, suffered severe physical pain
and mental pain and anguish as a proximate result of the incident made the basis of this
suit prior to the loss of his life. By reason of the above and foregoing, Plaintiff(s), would
allege that Curtis Edward Mark, deceased, has suffered damages in a sum within the
jurisdictional limits of the Court.
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51. Pleading further, Plaintiff Charmaine E. Mark has suffered the loss of solace, comfort,
affection, society, companionship, household services, earnings, earning capacity,
inheritance and loss of enjoyment of life as result of the death of her father, Curtis
Edward Mark, deceased, and has incurred physical and mental pain and anguish in the
past as a proximate result of the injuries and damages experienced by the tragedy
referenced above, and, in all reasonable probability, Plaintiff Charmaine E. Mark will
continue to suffer such injury and damage for a long time into the future if not for the
balance of her natural life. Pleading further, Plaintiff Charmaine E. Mark has needed
and/or sought and/or will need medical, psychological, psychiatric and/or emotional health
care and treatment, guidance and counseling in the past and will continue to suffer such
injury and damage for a long time into the future if not for the balance of her natural life
for which such care, treatment, guidance and counseling will be required as proximate
result of the events of the incident giving rise to this claim. By reason of the above and
foregoing, Intervenor(s), would allege that Plaintiff Charmaine E. Mark has suffered
damages in a sum within the jurisdictional limits of the Court.
52. Pleading further, Plaintiff the aDministrator of the Estate of Curtis Edward Mark,
Deceased, on Behalf Of All Persons Entitled To Recover For Curtis Edward Mark,
deceased and/or for His Death Under The Texas Wrongful Death Act would show that
such persons have suffered the loss of solace, comfort, affection, society, companionship,
household services, earnings, earning capacity, inheritance and loss of enjoyment of life as
result of the death of Curtis Edward Mark, deceased, and have incurred physical and
mental pain and anguish in the past as a proximate result of the injuries and damages
experienced by the tragedy referenced above, and, in all reasonable probability, such
Plaintiffs will continue to suffer such injury and damage for a long time into the future if
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not for the balance of their natural life. Pleading further, such Plaintiffs have needed and/or
sought and/or will need medical, psychological, psychiatric and/or emotional health care
and treatment, guidance and counseling in the past and will continue to suffer such injury
and damage for a long time into the future if not for the balance of their natural life for
which such care, treatment, guidance and counseling will be required as proximate result
of the events of the incident giving rise to this claim. By reason of the above and
foregoing, such Plaintiff(s), would allege that Curtis Edward Mark, deceased, they have
suffered damages in a sum within the jurisdictional limits of the Court.
GROSS NEGLIGENCE AND EXEMPLARY DAMAGES
53. The conduct of each Defendant(s), jointly, severally, singularly and/or together in any
manner described above constitutes gross negligence for the reason that it shows an entire
want of care demonstrating an actual conscious indifference to the rights, safety, and/or
welfare of persons likely to be affected by it inclusive of but not limited to Plaintiff(s). As
a result of such conduct, Plaintiff(s) are entitled to recover exemplary damages from
Defendant(s) jointly, severally, singularly and/or together in any manner, in a sum within
the jurisdictional limits of the Court.
54. The negligence of Defendants, CKM Industries, Inc., Miller Environmental Services,
LLC., individually and doing business as Miller Integrated Solutions and MES
Partners, Inc., jointly, severally, singularly and/or together in any manner proximately
caused the death of Curtis Edward Mark, whom Plaintiffs are legal beneficiaries, amount
to the willful and wanton misconduct as to evidence a conscious indifference to the
decedent’s welfare. Hence the Defendants, CKM Industries, Inc., Miller Environmental
Services, LLC., individually and doing business as Miller Integrated Solutions and
MES Partners, Inc., jointly, severally, singularly and/or together in any manner negligent
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conduct constituted gross negligence entitled Plaintiffs to the recovery from Defendants of
exemplary damages under Section 408.001 of the Texas Labor Code.
55. The only reason Plaintiffs are not also seeking actual damages for defendant’s negligence
is that Defendants, CKM Industries, Inc., Miller Environmental Services, LLC.,
individually and doing business as Miller Integrated Solutions and MES Partners,
Inc., jointly, severally, singularly and/or together in any manner and the decedent were
both subject to the Texas Workers’ Compensation Act at the time of the decedent’s fatal
injury in the course of decedent’s employment by Defendants.
CONDITIONS PRECEDENT
56. All conditions precedent to Plaintiffs’ right to recover herein and to Defendants’ liability
have been performed or have occurred.
REQUEST FOR DISCLOSURE
57. Plaintiff(s) hereby requests each Defendant to disclose, within thirty days (30) of service of
this request, the information or material described in Rule 194.2 of Texas Rules of Civil
Procedure.
NOTICE OF INTENT TO USE AUTHENTICATED DOCUMENTS
58. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiffs hereby give notice
of intent to offer into evidence all documents and items produced by each Defendant in
response to Plaintiffs discovery requests as authenticated for use against Defendant by
virtue of the Defendants’ production of the same.
PRAYER
WHEREFORE PREMISES CONSIDERED Plaintiffs respectfully request that each Defendant
be cited to appear and answer, and that on final trial, each Plaintiff have the following:
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1.) judgment against Defendants, jointly severally, singularly and/or together in any
combination, for actual damages in an amount within the jurisdictional limits of the
Court;
2.) judgment against Defendants, jointly severally, singularly and/or together in any
combination, for exemplary and/or punitive damages in an amount within the
jurisdictional limits of the Court;
3.) judgment against Defendants, jointly severally, singularly and/or together in any
combination, for reasonable attorney fees and costs in an amount within the
jurisdictional limits of the Court;
4.) pre-judgment interest as provided by law;
5.) post judgment interest as provided by law;
6.) costs of suit; and,
7.) such other and further relief to which Plaintiffs may show
themselves to be justly entitled.
TYLKA LAW CENTER, P.C.
By: _/s/ Lawrence M. Tylka
Lawrence M. Tylka
TB# 20359800
Tyler J. Tylka
TB# 24093287
1104 East Main
League City, Texas 77573
(281) 557-1500 telephone
(281) 557-1510 telecopier
Email: legal@tylkalawcenter.com
ATTORNEYS FOR PLAINTIFFS
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Filed 4/9/2024 5:16 PM Dwight D. Sullivan County Clerk Galveston County, Texas PR-0084851-A CAUSE NO.: THE ESTATE OF CURTIS EDWARD IN THE PROBATE COURT MARK, DECEASED, BY AND THROUGH IS INDEPENDENT ADMINISTRATOR AND FOR AND ON BEHALF OF ALL PERSONS ENTITLED TO RECOVER UNDER THE TEXAS WRONGFUL DEATH ACT AND CHARMAINE E. MARK Plaintiff(s), vs. DUSTIN CURTIS CLARK, SHELBY MCGIBONEY, CKM INDUSTRIES, INC., MILLER ENVIRONMENTAL SERVICES, LLC., INDIVIDUALLY AND DOING BUSINESS AS MILLER GALVESTON COUNTY, TEXAS INTEGRATED SOLUTIONS, MES PARTNERS, INC., AND ZURICH AMERICAN INSURANCE COMPANY Defendant(s). PLAINTIFFS’ ORIGINAL PETITION COME NOW Plaintiffs, The Estate of Curtis Edward Mark, deceased, by and through its Independent Administrator and for and on behalf of all persons entitled to recover under the Texas Wrongful Death Act and Charmaine E. Mark and file this Petition complaining of Dustin Curtis Clark, Shelby McGiboney, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions, MES Partners, Inc., and Zurich American Insurance Company, hereinafter collectively referred to as “Defendants,” and would show unto this Honorable Court and Jury as follows: LEVEL DESIGNATION 1. In accordance with Rule 190.1, discovery shall be conducted under Level 3. Plaintiffs state that this suit is for monetary relief aggregating in excess of $50,000 and not controlled by Level 1 Discovery Control Plan. Plaintiffs anticipate the parties may be able to enter into a Level 2 Discovery Control Plan, and/or in the alternative, may submit a Discovery Control Plan tailored to the circumstances of this specific case for the Court’s consideration or discretion. In accord with Texas Rules of Civil Procedure 47, Plaintiffs allege that this is a claim for only monetary relief in a sum over $1,000,000.00 and a demand for judgment for all other relief to which the Plaintiffs may show themselves to be entitled, including but not limited to damages of any kind, penalties, costs, expenses, pre- judgment interest, and attorney fees. Plaintiffs would show that The Rules of Civil Procedure require Plaintiffs to set forth such demand or claim but that Plaintiffs represents that the Jury and/or Trier of Fact are charged with such final determination and Plaintiffs does not seek to represent or assert that the Rules of Civil Procedure Plaintiffs are required to honor in any way take away or impugn the rights, duties and/or obligations of the Jury or Trier of Fact. VENUE AND JURISDICTION 2. The present Court has personal and subject matter jurisdiction over the parties as such causes of action relate to the Probate Proceeding pending the Statutory Probate Court in accord with §32.007 of Texas Estate Code. The jurisdiction of this Probate Court is concurrent with any other Court that has jurisdiction. See id. Tex. Est. Code §32.005 3. Venue is also proper in the present forum as the Statutory Probate Court of Galveston County, Texas, has exclusive original probate jurisdiction over matters related to the probate proceedings. Texas Government Code §25.0861(b). 4. In addition to and/or in the alternative, one or more of the events and/or causes of action upon which this cause is based arose out of and/or were to be performed in Galveston County, Texas. 2 PARTIES 5. Plaintiffs, The Estate of Curtis Edward Mark, deceased, by and through its Administrator, Diane Holmes. It is represented that Diane Holmes is the maternal grandmother of Charmaine E. Mark. The last three digits of Diane Holmes’ Social Security Number are 082. The last three digits of her Texas Driver’s License are 754. 6. Plaintiffs, All Persons Entitled to Recover for His Death Under The Texas Wrongful Death Act and/or Charmaine E. Mark, surviving daughter of decedent Curtis Edward Mark by nd through the Administrator and brings this suit under Sections 71.001 et seq. of the Texas Civil Practice and Remedies Code on behalf of and for the benefit of all statutory beneficiaries of decedent. 7. Plaintiff, Charmaine E. Mark, Individually, is a resident of La Marque, Galveston County, Texas. The last three digits of Charmaine E. Mark’s Social Security Number are 119. 8. Defendant Dustin Curtis Clark is an individual who is a resident of Brazoria County, Texas who may be served with process at his residence located at 213 N. Austin Drive, Holiday Lakes, Brazoria County, Texas 77515. SERVICE IS REQUESTED AT THIS TIME 9. Defendant Shelby McGiboney is an individual who is a resident of Brazoria County, Texas who may be served with process at her residence located at 15027 Quail Ridge Rd., Apt 213, Danbury, Brazoria County Texas 77534. SERVICE IS REQUESTED AT THIS TIME 10. Defendant CKM Industries, Inc., is a company doing business in Texas located at 629 Howard Dr., Deer Park, Harris County, Texas, which has identified CT Corporation 3 System as its registered agent to accept service on its behalf. Service is requested upon such defendant as follows: CKM Industries, Inc. C/O: CT Corporation System 1999 Bryan St. Ste. 600 Dallas, Texas 75201-3136 USA SERVICE IS REQUESTED AT THIS TIME 11. Defendant Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions is a company doing business in Texas located at 2420 Pasadena. Freeway, Pasadena Texas, and/or 629a Howard Drive, Deer Park Texas 77536which has identified CT Corporation System as its registered agent to accept service on its behalf. Service is requested upon such defendant as follows: Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions C/O: CT Corporation System 1999 Bryan St. Ste. 600 Dallas, Texas 75201-3136 USA SERVICE IS REQUESTED AT THIS TIME 12. Defendant MES Partners, Inc, is a company doing business in Texas located at 2420 Pasadena Freeway, Pasadena Texas, and/or 629 Howard Drive, Deer Park Texas 77536- 2610 USA which has identified CT Corporation System as its registered agent to accept service on its behalf. Service is requested upon such defendant as follows: MES Partners, Inc. C/O: CT Corporation System 1999 Bryan St. Ste. 600 Dallas, Texas 75201-3136 USA SERVICE IS REQUESTED AT THIS TIME 4 13. Defendant Zurich American Insurance Company is an insurance company doing business in Texas which has identified Corporation Service Company as its registered agent to accept service on its behalf. Service is requested upon such defendant as follows: Zurich American Insurance Company C/O: Corporation Service Company 211 E 7th St., Ste. 620 Austin, Texas 78701-3218 SERVICE IS REQUESTED AT THIS TIME MISNOMER AND ALTER EGO 14. In the event any parties are misnamed or not included herein, it is Plaintiffs’ contention that such was a misnomer and/or such parties are and/or were alter egos of parties named herein. Specifically, it is Plaintiff’s intent to bring suit against the employers of Curtis Edward Mark, deceased, jointly severally, singularly and/or together in any manner, who are believed to be defendants CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., whose motor vehicle was being operated and in whose control and service Curtis Edward Mark, deceased, was performing and in whose business he was furthering. BACKGROUND FACTS AND ALLEGATIONS 15. On or about September 11, 2023, Curtis Edward Mark, deceased, was tragically injured and killed as a proximate result of a motor vehicle collision. 16. At the time, date and on the occasion of such incident, Curtis Edward Mark, deceased, was in service to and/or operating in the course and course of his employment with Defendants CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., jointly severally, 5 singularly and/or together in any capacity and was subject to the control and direction of such Defendants. 17. Curtis Edward Mark, deceased was operating 2013 Freightliner towing a 2013 Clement Industries trailer in a northbound direction on FM 2004 at and/or near the intersection of CR 208 in Brazoria County, Texas, when he was involved in a motor vehicle collision with a 2010 Dodge Avenger operated by Defendant Dustin Curtis Clark. 18. The Defendant Dustin Curtis Clark was traveling in an eastward direction on CR 208 and disregarded a stop sign governing the direction of his motor vehicle, failed to yield the right of way, was operating a motor vehicle while under the influence of a controlled substance and/or alcohol and/or was otherwise impaired, among other things, proximately resulting in a collision with the motor vehicle operated by Curtis Mark Edwards, deceased, 19. The vehicle operated by Defendant Dustin Curtis Clark was entrusted to him for operation on the public streets and thoroughfares of the State of Texas by such vehicle’s owner, Defendant Shelby McGiboney, who knew and/or should have known of Defendant Dustin Curtis Clark’ impaired status and/or that he was a reckless and dangerous driver at the time, date and on the occasion of the incident made the basis of this suit 20. Pleading further, in addition to and/or in the alternative, Defendant Dustin Curtis Clark did not have a valid operator’s license at the time of the incident made the basis of this suit and/or such license had been suspended and/or was restricted. 21. At all times material hereto, the motor vehicle operated by Curtis Edward Mark was owned and/or maintained by his employer, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and 6 MES Partners, Inc., in whose service and employment he was operating such motor vehicle. 22. As approximate result of the collision and/or incident made the basis of this claim, Curtis Edward Mark, deceased, was proximately caused to suffer injury and his untimely death and the damages about which Plaintiffs’ herein complain. 23. Curtis Edward Mark, deceased, would have had a cause of action for negligence against Defendants, jointly severally, singularly and/or together in any manner, had decedent survived. CLAIMS OF NEGLIGENCE AND GROSS NEGLIGENCE AGAINST DEFENDANTS 24. Plaintiff would show that the incident and injuries and damages giving rise to this incident were proximately caused by the negligence and/or gross negligence of the Defendants, jointly severally, singularly and/or together in any manner. The actions and omissions of the Defendants, jointly severally, singularly and/or together in any manner, constitute negligence and/or gross negligence which proximately resulted in injuries and damages being suffered by Plaintiffs. 25. Pleading further and/or in the alternative, the above described collision which is the basis of this suit, was proximately caused by the negligence and/or gross negligence of Defendant Dustin Curtis Clark and/or Defendant Shelby McGiboney, jointly, severally, singularly and/or together in any manner in one or more of the following particulars that include but are not limited to: Failure to stop for and/or disregard of a stop sign; Failure to have valid operators driver’s license Failure to provide notice; Failure to provide warning; 7 Failure to keep proper lookout; Failure to provide notice or warning; Failure to pay proper attention; Allowing self to be distracted in operation of motor vehicle due to use or of mobile or cellular phone; Allowing self to be distracted in operation of motor vehicle due to texting; Allowing self to be distracted in operation of motor vehicle due to use of social media on cellular or mobile phone; Failure to control speed of vehicle; Failure to control operation of the vehicle; Failure to operate vehicle in a safe manner; Failure to timely brake the speed of the vehicle; Failing to maintain a safe and assured clear distance; Failing to stop motor vehicle without striking another vehicle from the rear; Failure to operate the vehicle as a person of ordinary prudence would have under the same or similar circumstance; Operating a motor vehicle while under the influence and/or intoxicated and/or while impaired; Failing to avoid a collision, Failure to train; Failure to instruct; Failure to supervise; Failure to monitor; Negligent supervision; and, Negligent entrustment, among other things 8 26. Pleading further and/or in addition, the actions and/or omissions of Defendant Dustin Curis Clark were in violation of the Texas Transportation Code and such actions or omissions constitute negligence which proximately resulted in the incident made the basis of this suit. Such violations include but are not limited to: 1. Violating Texas Transportation Code Section 545.062(a) by failing to keep an assured clear distance; 2. Violating Texas Transportation Code Section 545.351(a) and 545.351(b) by driving at a speed greater than reasonable and prudent under the circumstances then existing; 3. Violating Texas Transportation Code Section 545.408(a)(3) by failing to apply the brakes properly and/or timely as a result of the incident made the basis of this suit; 4. Violating Transportation Code Section 545.151 et sequ., by failing to comply with traffic control device (Disregard traffic signal); 5. Violating Texas Penal Code Title 10 Chapter 49.04 by driving or operating a vehicle while intoxicated and/or while under the influence of intoxicating alcohol and while his senses and skills were impaired. 6. Violating Texas Transportation Code 545.401 by driving a vehicle in wilful or wanton disregard for the safety of persons or property; 27. Each of the foregoing acts and/or omissions taken together or individually, constitutes negligence and each proximately caused the collision and the injuries and damages sustained by Plaintiffs. Moreover, the by violating the transportation and/or penal code as set out above, the actions and/or omissions of Defendant Dustin Curtis Clark constitute negligence as a matter of law. 9 28. Pleading further and/or in the alternative, the above described collision which is the basis of this suit, was proximately caused by the negligence and/or gross negligence of Defendants CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., in one or more of the following manners that include but are not limited to: 1. Exposure of their employee to unnecessary hazards; 2. Failure to enact appropriate safety measures; 3. Failure to provide adequate equipment; 4. Failure to maintain equipment; 5. Failure to provide a safe working environment; 6. Failure to properly supervise the working environment; 7. Failure to provide alternate routes of travel; 8. Controlling or directing the route of travel; 9. Failure to provide adequate training; 10. Failing to warn Plaintiff of the dangers associated with task 11. Failing to warn Plaintiff of dangers associated with the work environment to which he was exposed; 12. Failure to police or inspect the dangers associated with the work environment 13. Placing Plaintiff in a dangerous position and/or failing to act as a reasonable person in preventing harm; 14. Failure to remove, eliminate or abate the dangerous conditions which existed at all times material hereto; 15. Failure to adequately supervise; 16. Failure to monitor the work environment; 17. Failure to adequately instruct; 10 18. Failure to adequately train; 19. Failure to adequately monitor; 20. Failure to warn of dangerous activity and/or condition; 21. Failure to properly oversee safety in the work environment; 18. Failure to regulate activities; 19. Failure to provide notice; and, 20. other acts deemed negligent and grossly negligent, among other things. 29. Plaintiff reserves the right to add and/or supplement as discovery and/or information becomes available or is discovered. 30. Each of the foregoing acts and/or omissions taken together or individually, constitutes negligence and/or gross negligence by Defendants, jointly severally, singularly and/or together in any manner and were the proximate cause of Curtis Edward Mark’s injuries and tragic and unnecessary death. 31. Plaintiffs reserve the right to add and/or amend actions and/or omissions of negligence and/or gross negligence as such are made known through discovery. CAUSE OF ACTION AGAINST ZURICH AMERICAN INSURANCE COMPANY, DECLARATORY RELIEF-ACTION FOR UNINSURED AND/OR UNDERINSURED BENEFITS AND/OR PERSONAL INJURY PROTECTION BENEFITS 32. Plaintiff adopts and incorporates as if fully set forth at length herein paragraphs 1-30. 33. Plaintiff would show that the employers of Curtis Edward Mark, deceased, purchased and obtained and paid premiums for uninsured, underinsured motorist protection benefits and personal injury protection benefits from and to Defendant Zurich American Insurance Company (hereinafter referred to as “Zurich”) who issued a policy of reported to be policy number 7408466 and/or 7409466, and/or Curtis Edward Mark, deceased and/or Plaintiffs would be beneficiaries. 11 34. The contract and/or its terms, in whole or in part were to be performed in Galveston County, Texas. 35. Notice of the accident, injuries and event which proximately caused injury and loss of life to Curtis Edward Mark, deceased were provided to Defendant Zurich. Subsequently a claim and/or claims was/were opened and assigned claim number(s) 4100009678 and/or 4720154440. 36. Notice of the absence of coverage of Defendant(s) Dustin Curtis Clark and/or Shelby McGiboney and/or the insufficient limits of such coverage amounts were provided to Defendant Zurich. 37. Demand for payment of proceeds available pursuant to the uninsured and/or under insured and/or personal injury protection benefit portions of the policy was presented. 38. Plaintiffs would show that the Defendant Zurich American Insurance Company, willingly accepted and took payment of premiums for the coverages which would insure Curtis Edward Mark, deceased, and/or Plaintiffs and/or in the alternative, Curtis Edward Mark, deceased, was a beneficiary of such policies for such coverage benefits for which premium payments were made. 39. The conditions precedent to the contract entered by and between Defendant Zurich and the Plaintiffs have been performed. 40. However, after receipt of proper and reasonable demand, Defendant Zurich has unjustifiably and/or unreasonably failed to pay benefits owing, comply with the terms and conditions of the contract and with the express and implied warranties, guarantees, and representations to the detriment of Plaintiffs. 41. By virtue of the above referenced policy(ies) Defendant Zurich promised in relevant part to properly evaluate claims made for coverage and pay such the benefit and/or coverage 12 amounts that a covered person is legally entitled to recover from the owner and/or operator of any uninsured and/or underinsured motor vehicle because of bodily injury sustained by a covered person or property damage caused by such accident or event. 42. On or about the date of the incident referenced above, during the effective period for which coverage was provided Plaintiffs under the policy of insurance benefits issued by Defendant Zurich, Curtis Edward Mark, deceased and/or the Plaintiffs were caused to be severely injured by the negligence and/or gross negligence of third party or third parties. The impact occurred with such force that Curtis Edward Mark, deceased, suffered serious bodily injury and/or death. Plaintiffs further allege that Defendant(s) Dustin Curtis Clark and/or Shelby McGiboney were uninsured and/or underinsured and Defendant Zurich through its actions and/or omissions is heretofore estopped to deny that Curtis Edward Mark, deceased was struck and injured by an uninsured and/or underinsured motorist and/or driver for which Plaintiffs should be paid the benefits of the coverages for uninsured and/or underinsured motorist protection benefits and/or personal injury protection benefits. 43. As a proximate result of such actions, omissions and /or conduct, Plaintiff has been damaged in a sum within the jurisdictional limits of the Court. 44. Pleading further, Plaintiffs contend that Defendant Zurich is responsible to Plaintiffs for the benefits of the coverage of and from the policy(ies) of insurance protection purchased to provide coverage for Curtis Edward Mark, deceased, and/or Plaintiffs and/or for which Curtis Edward Mark, deceased and/or Plaintiffs are beneficiaries and/or which Plaintiffs present this claim for damages in a sum withing the jurisdictional limits of the Court. UNINSURED MOTORIST/UNDERINSURED MOTORIST AND PERSONAL INJURY PROTECTION BENEFITS’ CLAIM 13 45. Pleading further, in addition to and/or in the alternative, Plaintiff would show that the employers of Curtis Edward March, deceased purchased and obtained and paid premiums from and to Defendant Zurich who issued a policy of reported to be policy number 7408466 and/or 7409466. The contract and/or its terms, in whole or in part were to be performed in Galveston County, Texas. Notice of the accident and injuries were provided to Defendant Zurich. A claim file was established bearing claim number 4100009678 and/or 4720154440. Notice of the absence of coverage of Defendants Dustin Curtis Clark and/or Shelby McGiboney and/or the insufficient limits of such coverage amounts were provided to Defendant Zurich. Demand for payment of proceeds available pursuant to the uninsured and/or under insured portion and personal injury protection benefits of the policy was presented. Copies of medical, records, patient account charges and evidence of the insufficient amount of motorists coverage maintained by the Defendants Dustin Curtis Clark and/or Shelby McGiboney, above referenced, were provided for evaluation and review. Unfortunately, Defendant Zurich has failed to heed the demand and requests and has opted to disregard and/or offer less, and/or evaluate these claims in manner that is reasonable and fair and/or provide an evaluation and compensation as is required pursuant to the policy of coverage. BREACH OF CONTRACT 46. Pleading further, in addition to and/or in the alternative, Plaintiff would show that the Defendant Zurich willingly accepted and took payment of premiums for the coverages which would insure Curtis Edward Mark, deceased, and/or Plaintiffs and/or in the alternative , Curtis Edward Mark, deceased, was a beneficiary of such policies for such coverage benefits for which premium payments were made. The conditions precedent to the contract entered by and between Defendant Zurich and the Plaintiffs has been 14 performed. However, after receipt of proper and reasonable demand, Defendant Zurich has unjustifiably and/or unreasonably breached the contract and failed to pay benefits owing, comply with the terms and conditions of the contract and with the express and implied warranties, guarantees, and representations to the detriment of Plaintiffs. As a proximate result of such actions, omissions and /or conduct, Plaintiffs have been damaged in a sum within the jurisdictional limits of the Court. DECEPTIVE TRADE-CONSUMER PROTECTION ACT AND BAD FAITH INSURANCE PRACTICES 47. Pleading further, in addition to and/or in the alternative, Plaintiffs would further show that Defendant Zurich was provided at least a 60 day written notice advising of the complaints and damages incurred, the absence and/or insufficiency of coverage available by and/or through Defendant(s) Dustin Curtis Clark and/or Shelby McGiboney above referenced, his entitlement to receipt of benefits by and through the uninsured and/or under insured motorist insurance coverage and/or personal injury benefits of such policy of coverage and/or in the alternative, claims of breach of contract, violations of the Deceptive Trade – Consumer Protection Act, Bus. & Com. Code §17.45, et seq., and violations for Bad Faith Insurance Practices pursuant to Article 541 et seq., of the Insurance Code of the State of Texas by Defendant Zurich. Regardless, Defendant Zurich has unreasonable and/or unjustifiably failed, refused, and/or intentionally, knowingly, and wrongfully failed to pay the benefits of the insurance policy to which Plaintiff is rightfully entitled. As a result of their actions, omissions, and/or conduct, Defendant Zurich is liable to Plaintiff for actual and additional damages, inclusive of but not limited to, exemplary damages as provided by law and in a sum within the jurisdictional limits of the Court. 48. Pleading further, Plaintiffs would show that as a result of the actions, omissions and/or the conduct of the Defendant Zurich and the damages and injuries suffered by Plaintiffs, the 15 Plaintiffs have been forced to employ the attorney whose name appears on this pleading for the purpose of prosecution and collection of the claim. Plaintiffs are, therefore, entitled to recover of and from such Defendant Zurich an additional sum to compensate Plaintiffs for a reasonable fee for such attorney’s services in the preparation and prosecution of this action, as well as a reasonable fee any appeals to other Courts. DAMAGES 49. As a direct and proximate result of negligence of the Defendants Dustin Curtis Clark, Shelby McGiboney, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions, MES Partners, Inc acting jointly, severally, singularly, and/or together in any manner, Plaintiff(s), would show that Curtis Edward Mark, deceased suffered severe bodily injuries and suffered horrendous physical pain and mental anguish before his untimely passing due to this incident. Plaintiff(s) would show that at the time of the incident made the basis of this suit, Curtis Edward Mark, deceased, was born on August 24, 1974 and had reached the age of 48 years when he was caused to suffer his untimely death. 50. Pleading further, the period life tables reflect that Curtis Edward Mark, deceased, reasonably could have expected additional life expectancy of at least another thirty-two and four tenths (32.4) years but for the incident made the basis of this suit. Pleading further, it is alleged that Curtis Edward Mark, deceased, suffered severe physical pain and mental pain and anguish as a proximate result of the incident made the basis of this suit prior to the loss of his life. By reason of the above and foregoing, Plaintiff(s), would allege that Curtis Edward Mark, deceased, has suffered damages in a sum within the jurisdictional limits of the Court. 16 51. Pleading further, Plaintiff Charmaine E. Mark has suffered the loss of solace, comfort, affection, society, companionship, household services, earnings, earning capacity, inheritance and loss of enjoyment of life as result of the death of her father, Curtis Edward Mark, deceased, and has incurred physical and mental pain and anguish in the past as a proximate result of the injuries and damages experienced by the tragedy referenced above, and, in all reasonable probability, Plaintiff Charmaine E. Mark will continue to suffer such injury and damage for a long time into the future if not for the balance of her natural life. Pleading further, Plaintiff Charmaine E. Mark has needed and/or sought and/or will need medical, psychological, psychiatric and/or emotional health care and treatment, guidance and counseling in the past and will continue to suffer such injury and damage for a long time into the future if not for the balance of her natural life for which such care, treatment, guidance and counseling will be required as proximate result of the events of the incident giving rise to this claim. By reason of the above and foregoing, Intervenor(s), would allege that Plaintiff Charmaine E. Mark has suffered damages in a sum within the jurisdictional limits of the Court. 52. Pleading further, Plaintiff the aDministrator of the Estate of Curtis Edward Mark, Deceased, on Behalf Of All Persons Entitled To Recover For Curtis Edward Mark, deceased and/or for His Death Under The Texas Wrongful Death Act would show that such persons have suffered the loss of solace, comfort, affection, society, companionship, household services, earnings, earning capacity, inheritance and loss of enjoyment of life as result of the death of Curtis Edward Mark, deceased, and have incurred physical and mental pain and anguish in the past as a proximate result of the injuries and damages experienced by the tragedy referenced above, and, in all reasonable probability, such Plaintiffs will continue to suffer such injury and damage for a long time into the future if 17 not for the balance of their natural life. Pleading further, such Plaintiffs have needed and/or sought and/or will need medical, psychological, psychiatric and/or emotional health care and treatment, guidance and counseling in the past and will continue to suffer such injury and damage for a long time into the future if not for the balance of their natural life for which such care, treatment, guidance and counseling will be required as proximate result of the events of the incident giving rise to this claim. By reason of the above and foregoing, such Plaintiff(s), would allege that Curtis Edward Mark, deceased, they have suffered damages in a sum within the jurisdictional limits of the Court. GROSS NEGLIGENCE AND EXEMPLARY DAMAGES 53. The conduct of each Defendant(s), jointly, severally, singularly and/or together in any manner described above constitutes gross negligence for the reason that it shows an entire want of care demonstrating an actual conscious indifference to the rights, safety, and/or welfare of persons likely to be affected by it inclusive of but not limited to Plaintiff(s). As a result of such conduct, Plaintiff(s) are entitled to recover exemplary damages from Defendant(s) jointly, severally, singularly and/or together in any manner, in a sum within the jurisdictional limits of the Court. 54. The negligence of Defendants, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., jointly, severally, singularly and/or together in any manner proximately caused the death of Curtis Edward Mark, whom Plaintiffs are legal beneficiaries, amount to the willful and wanton misconduct as to evidence a conscious indifference to the decedent’s welfare. Hence the Defendants, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., jointly, severally, singularly and/or together in any manner negligent 18 conduct constituted gross negligence entitled Plaintiffs to the recovery from Defendants of exemplary damages under Section 408.001 of the Texas Labor Code. 55. The only reason Plaintiffs are not also seeking actual damages for defendant’s negligence is that Defendants, CKM Industries, Inc., Miller Environmental Services, LLC., individually and doing business as Miller Integrated Solutions and MES Partners, Inc., jointly, severally, singularly and/or together in any manner and the decedent were both subject to the Texas Workers’ Compensation Act at the time of the decedent’s fatal injury in the course of decedent’s employment by Defendants. CONDITIONS PRECEDENT 56. All conditions precedent to Plaintiffs’ right to recover herein and to Defendants’ liability have been performed or have occurred. REQUEST FOR DISCLOSURE 57. Plaintiff(s) hereby requests each Defendant to disclose, within thirty days (30) of service of this request, the information or material described in Rule 194.2 of Texas Rules of Civil Procedure. NOTICE OF INTENT TO USE AUTHENTICATED DOCUMENTS 58. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiffs hereby give notice of intent to offer into evidence all documents and items produced by each Defendant in response to Plaintiffs discovery requests as authenticated for use against Defendant by virtue of the Defendants’ production of the same. PRAYER WHEREFORE PREMISES CONSIDERED Plaintiffs respectfully request that each Defendant be cited to appear and answer, and that on final trial, each Plaintiff have the following: 19 1.) judgment against Defendants, jointly severally, singularly and/or together in any combination, for actual damages in an amount within the jurisdictional limits of the Court; 2.) judgment against Defendants, jointly severally, singularly and/or together in any combination, for exemplary and/or punitive damages in an amount within the jurisdictional limits of the Court; 3.) judgment against Defendants, jointly severally, singularly and/or together in any combination, for reasonable attorney fees and costs in an amount within the jurisdictional limits of the Court; 4.) pre-judgment interest as provided by law; 5.) post judgment interest as provided by law; 6.) costs of suit; and, 7.) such other and further relief to which Plaintiffs may show themselves to be justly entitled. TYLKA LAW CENTER, P.C. By: _/s/ Lawrence M. Tylka Lawrence M. Tylka TB# 20359800 Tyler J. Tylka TB# 24093287 1104 East Main League City, Texas 77573 (281) 557-1500 telephone (281) 557-1510 telecopier Email: legal@tylkalawcenter.com ATTORNEYS FOR PLAINTIFFS 20