Complaint,Petition: LETICIA VASQUEZ VS. GREAT LAKES INSURANCE SE

On April 17, 2024 a Complaint,Petition was filed involving a dispute between Vasquez, Leticia, and Great Lakes Insurance Se, for Contract - Consumer/Commercial/Debt (OCA) in the District Court of Hidalgo County.

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Electronically Submitted
4/17/2024 5:17 PM
Hidalgo County Clerk
Accepted by: Carlos Guerra

CL-24-1675-A
CAUSE NO.____________

LETICIA VASQUEZ § IN THE COUNTY COURT
Plaintiff, §
§
vs. § AT LAW NO. ______
§
GREAT LAKES INSURANCE SE §
Defendant. § HIDALGO COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION

LETICIA VASQUEZ (hereinafter referred to as (“PLAINTIFF”), and files her Original

Petition against GREAT LAKES INSURANCE SE (hereinafter referred to as “DEFENDANT”),

and shows the Court the following:

I. Discovery

Pursuant to Rule 47 of the Texas Rules of Civil Procedure, PLAINTIFF seeks damages

of monetary relief of $250,000 or less. Specifically, PLAINTIFF seek damages of monetary

relief of no more than $75,000.00. PLAINTIFF intends to conduct discovery in accordance with

the applicable rules of the Texas Rules of Civil Procedure.

II. Service of Process

DEFENDANT, may be served with process by serving citation and a copy of this

Original Petition by Certified Mail Return Receipt Requested on its agent for service at:

Mendes and Mount, LLP, 750 Seventh Avenue, New York, NY 10019-6829

DEFENDANT is in the business of providing insurance in the State of Texas. The

insurance business done by DEFENDANT in Texas includes, but is not limited to the following:

1. The making and issuing of contracts of insurance with the PLAINTIFF;

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Hidalgo County Clerk
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2. The taking or receiving of application for insurance, including the PLAINTIFF’S

application for insurance;

3. The receiving or collection of premiums, commissions, membership fees,

assessments, dues or other consideration for any insurance or any part thereof,

including any such consideration or payments from the PLAINTIFF;

4. The issuance or delivery of contracts of insurance to residents of this state or a

person authorized to do business in this state, including the PLAINTIFF;

5. The adjusting and inspection of PLAINTIFF’S insurance claims;

6. Making insurance coverage decisions;

7. Taking part in making insurance coverage decisions; and

8. Making representations to PLAINTIFF as being an agent for an insurance company

with authority to make coverage decisions;

III. Jurisdiction and Venue

Venue of this action is proper in HIDALGO County, Texas because: the policy at issue

was issued and delivered in HIDALGO County, Texas; the property insured is situated in

HIDALGO County, Texas; PLAINTIFF’S losses occurred in HIDALGO County, Texas, and all

or part of the events made the basis of this lawsuit and giving rise to PLAINTIFF’S claims and

causes of action occurred in HIDALGO County, Texas.

IV. Facts

DEFENDANT and its agents committed the actions alleged against PLAINTIFF in this

petition. PLAINTIFF owns the property located at: 9108 Western Road, Mission TX 78574 with

Policy # GK22390640573; Claim # MDC 56384. DEFENDANT provided coverage to the

PLAINTIFF for such building, personal property, and other matter. During the term of said

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policy, PLAINTIFF sustained covered losses in the form of a storm-related event, on or about

April 29, 2023, in HIDALGO County, including damage to the architectural finishes of the

property. PLAINTIFF promptly reported losses to DEFENDANT pursuant to the terms of the

insurance policy. As a result, PLAINTIFF’S property sustained damage, including the cost of

destruction and restoration of the property necessary to access and fix the damaged areas. These

are covered damages under PLAINTIFF’S insurance policy with DEFENDANT. PLAINTIFF

has been damaged in an amount in excess of the minimum jurisdictional limits of this Court,

including injuries sustained as a result of having conduct business during the pendency of

DEFENDANT'S conduct.

V. Conditions Precedent

All conditions precedent have been waived by the insurance company, have been

performed by Plaintiff, or have otherwise been satisfied. Despite these facts, DEFENDANT has

failed and refused to pay PLAINTIFF a just amount in accordance with their contractual

obligations, agreements, and representations. Moreover, Defendant’s claims that Plaintiff did not

comply with the contract are barred by waiver, based on Defendant’s breach and noncompliance

with the material terms of the insurance contract. Generally, when one party to contract commits

material breach, the other party is discharged or excused from further performance. Mustang

Pipeline Co., Inc. v. Driver Pipeline Co. Inc., 134 S.W.3d 195, 196 (Tex. 2004).

VI. Breach of Contract

PLAINTIFF purchased an insurance policy with DEFENDANT. PLAINTIFF’S property

was damaged by the storm-related damage, all of which are covered under the insurance policy.

DEFENDANT has denied and/or delayed payment of PLAINTIFF’S covered claims.

DEFENDANT has no reasonable basis for denying, delaying, or failing to pay PLAINTIFF’S

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claims for damages. DEFENDANT knew or should have known that there was no such

reasonable basis to deny, delay, and fail to pay such claims. The conduct of DEFENDANT was

irresponsible and unconscionable. DEFENDANT took advantage of the PLAINTIFF’S lack of

sophistication in insurance and construction matters to a grossly unfair degree. DEFENDANT

has, by its conduct, breached its contract with PLAINTIFF. The conduct of DEFENDANT has

proximately caused the injuries and damages to the PLAINTIFF.

VII. Second Cause of Action: DTPA Violations

PLAINTIFF is a “consumer” entitled to relief under the Texas Deceptive Trade

Practices—Consumer Protection Act (“DTPA”). By its conduct outlined above, DEFENDANT

has engaged in the following violations of the DTPA which, together and separately, have been a

producing cause of PLAINTIFF’S damages:

(a) DEFENDANT made false representations about PLAINTIFF’S rights, remedies, and

obligations under the policies at issue. These statements were a misrepresentation of the

insurance policies and their benefits in violation of §§17.46(b)(5), (7), (12) and (14),

Texas Business & Commerce Code;

(b) DEFENDANT’S actions constitute an unconscionable course of conduct entitling

PLAINTIFF to relief under §17.50(a)(1), (2), (3), and (4) of the Texas Business &

Commerce Code;

extent of their insurance policy, which was known by DEFENDANT at the time for the

purpose of inducing PLAINTIFF into transactions which she would not have otherwise

entered in violation of section 17.46(b)(9) and (23), Texas Business and Commerce

Code;

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(d) As described above, DEFENDANT violated Chapter 541, Texas Insurance Code,

entitling PLAINTIFF to relief under section 17.50(a)(4), Texas Business and Commerce

Code.

DEFENDANT took advantage of PLAINTIFF’S lack of knowledge in construction and

insurance claims processes, misrepresented losses covered under the insurance policy, and failed

to disclose pertinent information regarding damages to the PLAINTIFF’S property.

DEFENDANT conduct as described herein was a producing cause of damages to PLAINTIFF

for which PLAINTIFF sues. The conduct of the DEFENDANT was more than just a mistake,

and was done “knowingly” and/or “intentionally,” as those terms are derived by statute. Because

of that, DEFENDANT may be subject to liability for additional damages under the Texas

Deceptive Trade Practices Act. PLAINTIFF seeks an award of additional damages under the

DTPA in an amount not to exceed three times the amount of economic damages.

VIII. Unfair Insurance Practices

DEFENDANT failed to inform PLAINTIFF of material facts, such as the true scope of damage

and cost to repair. DEFENDANT failed to properly process claims and misrepresented material

facts to the PLAINTIFF. DEFENDANT has failed to address all damage to the property and its

contents causing further damage to the PLAINTIFF. Further, DEFENDANT has intentionally

failed to fully investigate the loss; failed to properly convey all information to PLAINTIFF; and

has intentionally ignored damages to the dwelling. PLAINTIFF’S property suffered from

covered losses and damage, of which DEFENDANT is fully aware. DEFENDANT has

concealed damage known by it to exist. DEFENDANT has known about covered storm-related

damage but has failed to perform proper testing and concealed facts from PLAINTIFF about the

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damages, ignoring PLAINTIFF’S plea for help. DEFENDANT has failed to warn PLAINTIFF

of consequential damage to their property.

By its conduct outlined above, DEFENDANT committed unfair practices in the business

of insurance prohibited by Chapter 541, Texas Insurance Code, and the statutes, rules and

regulations incorporated therein. DEFENDANT committed the following acts in violation of

Texas Insurance Code and Texas Administrative Code:

(1) DEFENDANT failed to, with good faith, effectuate a prompt, fair, and equitable

settlement of the PLAINTIFF’S claims once liability became reasonable clear (Tex. Ins.

Code Ann. 541.060(a)(2)(A); Tex. Ins. Code Ann. 542.003(b)(4); 28 TAC section

21.203(4));

(2) DEFENDANT failed to provide promptly to PLAINTIFF a reasonable explanation of the

basis in the policy, in relation to the facts or applicable law, for denial of the claim or for

the offer of a compromise settlement of the claim (Tex. Ins. Code Ann. 541.060(a)(3); 28

TAC section 21.203(9));

(3) DEFENDANT refused to pay a claim without conducting a reasonable investigation with

respect to that claim (Tex. Ins. Code Ann. 541.060(a)(7); TAC section 21.203(15));

(4) DEFENDANT breached its duty of good faith and fair dealing at common law;

(5) DEFENDANT failed to adopt and implement reasonable standards for the prompt

investigation of claims arising under the insurer’s policies (Tex. Ins. Code Ann. 542.

003(b)(3); 28 TAC section 21.203(3));

(6) DEFENDANT compelled PLAINTIFF to institute a suit to recover an amount due under

a policy by offering substantially less than the amount ultimately recovered in a suit

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Hidalgo County Clerk
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brought by the policyholder (Tex. Ins. Code Ann. 542.003(b)(5); 28 TAC section

21.203(6);

(7) DEFENDANT violated the Prompt Payment of Claims Statute (28 TAC section

21.203(18));

(8) DEFENDANT committed the following unfair methods of competition or deceptive acts

or practices in the business of insurance in violation of Texas Insurance Code and the

Texas Administrative Code by:

(a) DEFENDANT made, issued or circulated or caused to be made, issued or

circulated an estimate, illustration, circular or statement misrepresenting with

respect to the policy issued or to be issued:

(i) the terms of the policy; and/or

(ii) the benefits or advantages promised by the policy.

(b) DEFENDANT made an untrue statement of material fact (Tex. Ins. Code Ann.

541.060(a)(1); 28 TAC section 21.203(1));

made not misleading, considering the circumstances under which statements were

made; and

(d) DEFENDANT made statements in a manner that would mislead a reasonably

prudent person to a false conclusion of material fact.

(e) DEFENDANT refused to make a settlement offer under applicable first-party

coverage on the basis that other coverage may be available or that third parties are

responsible for the damages suffered, except as may be specifically provided in

the policy (Tex. Ins. Code Ann 541.060(a)(5); 28 TAC section 21.203(11);

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Hidalgo County Clerk
Accepted by: Carlos Guerra
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DEFENDANT’S conduct as described herein was a producing cause of damage to PLAINTIFF,

for which he now sues.

IX. Breach of the Duty of Good Faith and Fair Dealing

From and after the time the PLAINTIFF’S claims were presented to DEFENDANT,

liability to pay the claims in accordance with the terms of insurance policies referenced above

has been reasonably clear. Despite there being no basis whatsoever on which a reasonable

insurance company would have relied to deny and/or delay payment for PLAINTIFF’S claims,

DEFENDANT refused to accept the claims in totality and pay the PLAINTIFF as the policy

required. At that time, DEFENDANT knew or should have known by the exercise of reasonable

diligence that their liability was reasonably clear. DEFENDANT failed to conduct a reasonable

and proper inspection of the claims and refused to rely on the true facts, resorting instead to

producing faulty, incomplete, and biased reasons to avoid paying a valid claim. This constitutes

failing to handle or process the PLAINTIFF’S claims in good faith, an affirmative duty placed on

DEFENDANT, as expressly stated by the Texas Supreme Court in Vail v. Texas Farm Bureau,

754 S.W.2d 129 at 135 (Tex. 1988). Through the actions described above, DEFENDANT

breached its duty to deal fairly and in good faith with the PLAINTIFF. DEFENDANT’S breach

was a proximate cause of the losses, expenses and damages suffered by PLAINTIFF, for which

she now sues.

X. Texas Insurance Code 542, Subchapter B Delay in Payment

PLAINTIFF gave prompt notice of their claims to DEFENDANT. DEFENDANT has

engaged in unfair settlement claims practices, as discussed above, and denied and/or has delayed

payment on PLAINTIFF’S claim. DEFENDANT’S reliance on reports and estimates from its

adjusters and investigating adjusters has been “merely pretextual” and unreasonable.

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Hidalgo County Clerk
Accepted by: Carlos Guerra
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DEFENDANT’S investigation and use of adjusters’ reports was an “outcome-oriented”

investigation. DEFENDANT failed to comply with the requirements of Chapter 542 listed

herein:

(a) Failing to pay PLAINTIFF’S claim within 60 days of receiving all of the items,

statements, and forms required by the insurer to secure final proof of loss, of the

acceptance or rejection of a claim; and

(b) Failing to request all of the items, statements and forms the DEFENDANT

reasonably believed at the time would be required from PLAINTIFF to pay the

claim within 15 days after receiving notice of the claim.

Pursuant to Texas Insurance Code Chapter 542, Subchapter B, PLAINTIFF is entitled to

recover from DEFENDANT the statutory penalty of 5% plus the interest rate determined under

Section 304.003, Finance Code, on all amounts due on PLAINTIFF’S claims, together with

attorney’s fees, for which she sues.

XI.

PLAINTIFF alleges that as to any terms, conditions, notices, or requests under the

insurance contract, PLAINTIFF has substantially complied and/or is excused. In the alternative,

PLAINTIFF makes the allegation of waiver and/or estoppel as to every defense or exclusion

plead by DEFENDANT as to any exclusion, condition, or defense pled by DEFENDANT,

PLAINTIFF would show that:

1. The clear and unambiguous language of the policy provides coverage for dwelling

damage caused by storm-related damage, including the cost of access to fix the

damaged areas. Any other construction of the language of the policy is void as

against public policy;

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Hidalgo County Clerk
Accepted by: Carlos Guerra
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2. Any other construction and its use by DEFENDANT violates section 541 and 542

of the Texas Insurance Code and are void as against public policy;

3. Any other construction violates Art. 17.50 of the Texas Business and Commerce

Code, is unconscionable, was procured by fraudulent inducement, and is void as

against public policy;

4. Any other construction is otherwise void as against public policy, illegal, and

violates state law and administrative rule and regulation;

5. The adoption of any other construction constitutes wrongful or bad faith

cancellation and/or refusal to renew a portion of PLAINTIFF’S predecessor

policy with DEFENDANT. In this regard, PLAINTIFF would show that her

insurance policy was renewed uninterruptedly for many years; and

6. The adoption of any other construction constitutes conduct in violation of the laws

of this state, including section 541 and 542 of Texas Insurance Code is void as

against public policy.

If this Court finds any ambiguity in the policy, the rules of construction of such policies

mandate the construction and interpretation urged by PLAINTIFF. In the alternative,

DEFENDANT is judicially, administratively, or equitably estopped from denying PLAINTIFF’S

construction of the policy coverage at issue. To the extent that the wording of such policy does

not reflect the true intent of all parties thereto, PLAINTIFF pleads the doctrine of mutual

mistake, thus requiring reformation.

XII. Exemplary Damages

Plaintiff would further show that the acts and omissions of Defendant and its agents,

adjusters, employees and/or representatives complained of herein were committed knowingly,

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willfully, intentionally, with actual awareness, and with the specific and predetermined intention

of enriching said Defendant at the expense of the Plaintiff. In order to punish said Defendant for

such unconscionable overreaching and to deter such actions and/or omissions in the future,

Plaintiff requests exemplary damages pursuant to 17.50(b)(1) of the Texas Business and

Commerce Code and § 541.152(b) of the Tex. Ins. Code.

XIII.

WHEREFORE, PREMISES CONSIDERED, PLAINTIFF respectfully requests this

Honorable Court for the following relief: That upon final hearing and trial hereof, this Honorable

Court grant to the PLAINTIFF such relief as to which she may show herself justly entitled, either

at law or in equity; either general or special, including declaratory judgment, judgment against

the DEFENDANT for actual attorney’s fees, cost of suit, mental anguish, DTPA violations,

Texas insurance code violations, statutory penalties, and pre-judgment and post-judgment

interest, including judgment for additional damages and punitive damage under the facts set forth

in this or any amended pleading in exceeding the minimal jurisdictional limits of the court.

XIV. Jury Demand

PLAINTIFF requests that this Court empanel a jury to sit in the trial of this matter. The

requisite jury fee will be paid as required by law.

XV. Required Disclosures

Under Texas Rule of Civil Procedure 194, PLAINTIFF requests that DEFENDANT

disclose, within 30 days of filings its answer, the information or material described in Texas Rule

of Civil Procedure 194.

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Hidalgo County Clerk
Accepted by: Carlos Guerra
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Respectfully submitted,

/s/ Omar Ochoa
Omar Ochoa
Tex. Bar No. 24079813
OMAR OCHOA LAW FIRM PC
121 N. 10th Street
McAllen, Texas 78501
Tel: (956) 630-3266
oochoa@omarochoalaw.com

/s/ Victor Rodriguez Jr.
Victor Rodriguez Jr.
Tex. Bar No. 24041809
VICTOR RODRIGUEZ LAW FIRM PLLC
121 N. 10th Street
McAllen, Texas 78501
Tel: (956) 630-3266
victor@vrodriguezlaw.com

ATTORNEYS FOR PLAINTIFF

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Robert Ramos on behalf of Omar Ochoa
Bar No. 24079813
rramos@omarochoalaw.com
Envelope ID: 86785520
Filing Code Description: Petition
Filing Description: PLAINTIFF???S ORIGINAL PETITION
Status as of 4/18/2024 8:04 AM CST

Associated Case Party: LETICIAVASQUEZ

Name BarNumber Email TimestampSubmitted Status

Sabrina Vela svela@omarochoalaw.com 4/17/2024 5:17:56 PM SENT

Alexis Saenz asaenz@omarochoalaw.com 4/17/2024 5:17:56 PM SENT

Renee Rosillo rrosillo@omarochoalaw.com 4/17/2024 5:17:56 PM SENT

Victor Rodriguez Victor@vrodriguezlaw.com 4/17/2024 5:17:56 PM SENT

Robert Ramos rramos@omarochoalaw.com 4/17/2024 5:17:56 PM SENT

Omar Ochoa oochoa@omarochoalaw.com 4/17/2024 5:17:56 PM SENT

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Document Filed Date

April 17, 2024

Case Filing Date

April 17, 2024

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Complaint,Petition: LETICIA VASQUEZ VS. GREAT LAKES INSURANCE SE

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