Preview
Electronically Filed
5/6/2024 1:49 PM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
CAUSE NO.
CARLOS DARIO GIRALDO, § IN THE DISTRICT COURT OF
Plaintiff §
§
§
§
v. § _____ JUDICIAL DISTRICT
§
FARMERS TEXAS COUNTY §
MUTUAL INSURANCE COMPANY, §
Defendant § HIDALGO COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES CARLOS DARIO GIRALDO, hereinafter called Plaintiff, complaining of
and about FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, hereinafter
called Defendant, and for cause of action shows unto the Court the following:
I.
DISCOVERY CONTROL PLAN
1.1 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.4 because this suit involves only monetary relief totaling $1,000,000.00 or more,
including damages of any kind, penalties, court costs, expenses, and prejudgment interest.
1.2 Plaintiff has suffered losses and damages in a sum within the jurisdictional limits
of the Court and for which this lawsuit is brought. Plaintiff seeks monetary relief of
$1,000,000.00 or more and nonmonetary relief. Tex. R. Civ. P. 47(c)(4). Plaintiff reserves the
right to either file a trial amendment or an amended pleading on the issue of damages if
subsequent evidence shows that the range of damages is either too high or too low.
II.
PARTIES AND SERVICE
2.1 Plaintiff, CARLOS DARIO GIRALDO, is an individual residing in Texas.
Plaintiff’s Original Petition Page 1
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
2.2 Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
is a Texas Insurance Company organized under the laws of the State of Texas. Service of process
on the Defendant may be effected by serving its registered agent, Corporation Service Company,
211 E. 7th St., Ste. 620, Austin, Texas 78701-3218, or wherever they may be found.
III.
JURISDICTION AND VENUE
3.1 This suit is brought pursuant to the law of negligence, contract law, and the Texas
Insurance Code. Furthermore, the venue is proper in Hidalgo County since the Plaintiff (the
beneficiaries of the insurance policy in question insured by the Defendant FARMERS TEXAS
COUNTY MUTUAL INSURANCE COMPANY resided in Hidalgo County, Texas, at the time
the cause of action accrued and continued to the present still reside in Hidalgo County, Texas.
See Texas Civil Practices and Remedies Code (CPRC) Sections 15.002(a), 15.032, and 15.038,
as well as Texas Insurance Code Section 1952.110.
IV.
FACTS
4.1 On or about January 31, 2020, the plaintiff traveled southbound on the 5500 block
of N. McColl Road in Edinburg, Texas. As the Plaintiff began to slow down due to traffic
turning in front of him, the tortfeasor, Tiffany Marie Espericueta, who was also traveling
southbound behind the Plaintiff’s vehicle, failed to control her speed and maintain a safe distance
between vehicles and collided into the rear of the Plaintiff’s vehicle.
4.2 The legal damages suffered by the Plaintiff as hereinbelow set forth exceed the
maximum per accident bodily injury liability limits of coverage provided by the tortfeasor, Ms.
Espericueta, via her policy (#347 9014-B03-53F 002) of automobile liability insurance with
State Farm Mutual Automobile Insurance Company. Therefore, the tortfeasor, Ms. Espericueta,
Plaintiff’s Original Petition Page 2
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
is an underinsured motorist as that term is defined by the Texas Insurance Code and also as such
term is defined in the Plaintiff's own automobile insurance policy with the Defendant FARMERS
TEXAS COUNTY MUTUAL INSURANCE COMPANY.
4.3 Plaintiff hereby claims benefits due under the uninsured/underinsured motorist
provision of the insurance policy issued by Defendant FARMERS TEXAS COUNTY
MUTUAL INSURANCE COMPANY (i.e., policy #045508931), which was in force and effect
and provided coverage to the Plaintiff on January 31, 2020.
4.4 All conditions precedent and terms of policy # 045508931 from Defendant
FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY required to be met prior
to filing this suit have heretofore been satisfied.
V.
UNINSURED/UNDERINSURED MOTORISTS COVERAGE
5.1 Prior to January 31, 2020, the defendant, FARMERS TEXAS COUNTY
MUTUAL INSURANCE COMPANY, issued to CARLOS DARIO GIRALDO a standard form
automobile insurance policy in effect on the date of injury, which provided Plaintiff with certain
types of automobile liability insurance coverage.
5.2 This policy provides, in its “Uninsured/Underinsured Motorist Coverage”
provisions, that it will pay damages that a covered person is legally entitled to recover from the
owner or operator of an underinsured motor vehicle because of bodily injuries sustained by a
covered person or property damage caused by an accident.
5.3 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY did not, in
writing, reject the Uninsured/Underinsured Motorist Coverage mentioned above at any time prior
to the date in question and under the terms and provisions of this policy and of Tex. Ins. Code
Plaintiff’s Original Petition Page 3
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
Ann., under the policy, Plaintiff is entitled to recover under the uninsured/underinsured motorist
coverage provision of the automobile liability insurance policy identified herein.
5.4 Tiffany Marie Espericueta was protected by liability insurance coverage that did
not completely satisfy the plaintiff’s damages. Under the terms and provisions of the
aforementioned policy, Tiffany Marie Espericueta is considered “an uninsured/underinsured
motorist.”
5.5 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
acknowledged the plaintiff's claim for benefits due but consistently and continuously refused to
pay the claim after all requested information was submitted.
5.6 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY is
engaging in unfair settlement practices by failing to pay for or allow for any form of
compensation for pain and suffering to which Plaintiff is entitled and requiring that Plaintiff file
suit in order to enforce his rights under the contract of insurance in violations of the Texas
Insurance Code and the Texas Deceptive Trade Practices & Consumer Protection Act which
have occurred to date relating to Defendant’s failure to adhere to the provisions of Section
542.003 of the Texas Insurance Code.
VI.
COUNT 1 - DECLARATORY RELIEF
6.1 Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
issued to Plaintiff an Uninsured/Underinsured Motorist Coverage general liability policy number
045508931. On April 1, 2024, Plaintiff delivered to Defendant his Demand for damages under
the uninsured/underinsured policy.
6.2 According to the terms of the insurance policy, on or after April 12, 2024, in the
event of forwarding the demand letter upon FARMERS TEXAS COUNTY MUTUAL
Plaintiff’s Original Petition Page 4
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
INSURANCE COMPANY of which all conditions precedent and required to trigger the
underinsured motorist coverage under this policy of insurance have not been satisfied.
6.3 To date, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
has failed and/or refused to fully perform its obligations under the insurance policy in violations
of the Texas Insurance Code and the Texas Deceptive Trade Practices & Consumer Protection
Act which may have occurred to date relating to your possible failure to adhere to the provisions
of Section 542.003 of the Texas Insurance Code. As a consequence of which, Plaintiff has not
received the benefit of his bargain with Defendant. In addition, Plaintiff suffered further
damages, as described herein, as a consequence of Defendant’s failure to perform its obligations.
6.4 Plaintiff has made a written demand that Defendant perform its obligations to
Plaintiff under their insurance policy. A conflict exists between Plaintiff and Defendant as to
whether or not Defendant is obligated to pay Plaintiff for damages suffered on January 31, 2020,
as a result of the undisputed negligence of Tiffany Marie Espericueta, who is an underinsured
motorist.
VII.
COUNT 2 - VIOLATIONS OF TEXAS INSURANCE CODE
AND STATE BOARD OF INSURANCE RULES AND REGULATIONS
7.1 Defendant has engaged in a course of conduct in violation of the Texas Insurance
Code and Regulations, including, but not limited to, Regulations promulgated there under, which
prohibit unfair and deceptive practices in the business of insurance. Specifically, the defendant
has:
a) Represented that FARMERS TEXAS COUNTY MUTUAL INSURANCE
COMPANY’s services were of a particular quality when they were of another;
b) Represented that the insurance agreement contained, or involved, rights, remedies, or
obligations that it did not have or involve;
Plaintiff’s Original Petition Page 5
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
c) Misrepresented that claims would be paid in a reasonable and timely manner;
d) Failed to deal in good faith with Plaintiff regarding the payment of his underinsured
motorist claim by intentionally under-evaluating his claim;
e) Effectively wrongfully denied Plaintiff’s underinsured motorist claim by failing to
settle Plaintiff’s claim when they knew they owed it, thereby causing Plaintiff to
sustain continued injuries; and
f) Engaged in unfair, deceptive acts or practices in the business of insurance.
7.2 Such acts and representations by the defendant constitute an unfair practice in the
business of insurance and constitute a direct and producing cause of the damages suffered by the
Plaintiff.
VIII.
COUNT 3 - BREACH OF DUTY OF GOOD FAITH
AND FAIR DEALING
8.1 By the foregoing conduct described above, the defendant has breached its duties
of good faith and fair dealing, which arise between the insured and the insurer pursuant to the
relationship established by the subject automobile insurance policy. The breach was a direct
cause of actual damages sustained by the Plaintiff. Defendant, FARMERS TEXAS COUNTY
MUTUAL INSURANCE COMPANY, has breached its duty willfully and is liable for damages,
of which Plaintiff seeks in an amount sufficient to punish Defendant and deter it and others who
might engage in similar conduct.
8.2 Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE
COMPANY’s conduct in connection with Plaintiff’s underinsured motorist claim violated § 541
& 542.003 of the Unfair Claim Settlement Practices Prohibited of the Texas Insurance Code by:
a) Knowingly misrepresenting to Plaintiff pertinent facts or policy provisions relating to
coverage at issue;
b) Failing to acknowledge with reasonable promptness pertinent communications
relating to Plaintiff’s claim arising under the insurer's policy;
Plaintiff’s Original Petition Page 6
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
c) Failing to adopt and implement reasonable standards for the prompt investigation of
claims arising under the insurer's policies;
d) Not attempting in good faith to effect a prompt, fair, and equitable settlement of
Plaintiff’s claim submitted in which liability has become reasonably clear;
e) Compelling Plaintiff, its policyholder, to institute a suit to recover an amount due
under the policy by offering substantially less than the amount which would
ultimately be recovered in a suit brought by the policyholder; and
f) Failing to maintain the information required by Section 542.005.
8.3 All of the foregoing acts and omissions are proximate causes of the damages
sustained by Plaintiff, for which Defendant, FARMERS TEXAS COUNTY MUTUAL
INSURANCE COMPANY, is liable herein.
IX.
COUNT 4 - PREEXISTING CONDITION
9.1 Alternatively, if it is shown that Plaintiff, prior to the occurrence, had pre-existing
medical, physical, and/or psychological conditions, they have sustained aggravation of such pre-
existing medical, physical, and/or psychological conditions. More particularly, if the evidence
demonstrates that prior to the occurrence in question, Plaintiff has pre-existing conditions, such
conditions at the time of the occurrence were latent, controlled, and/or non-debilitating.
9.2 The tortfeasor, Tiffany Marie Espericueta's occurrence and conduct have
aggravated and accelerated such conditions and/or made Plaintiff more vulnerable or predisposed
to subsequent injury and to the effects of subsequent stressors and injuries.
9.3 Further, as a consequence of Plaintiff’s injuries caused by Tiffany Marie
Espericueta, Plaintiff has been made more vulnerable and pre-disposed to subsequent further
injury, aggravation of the injuries resulting from the occurrence in question, and to the effects of
Plaintiff’s Original Petition Page 7
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
subsequent stressors. He also has sustained additional mental anguish because of this increased
vulnerability, which, in reasonable probability, he will experience for the remainder of his life.
X.
REMEDIES
10.1 Because of Defendant’s failure to perform its duties under the purchased
insurance policy and because of the disagreement between Plaintiff and Defendant over
Defendant’s obligation to fully perform its obligations under the insurance policy, Plaintiff is
entitled to a declaratory judgment that Defendant owes Plaintiff in the amount of $250,000.00
pursuant to the insurance policy Plaintiff purchased from FARMERS TEXAS COUNTY
MUTUAL INSURANCE COMPANY. Defendant is obligated to pay for Plaintiff’s damages
described herein.
10.2 Furthermore, because of Defendant’s failure to honor Plaintiff’s timely written
demand for performance, which necessitated Plaintiff preparing and filing this lawsuit, Plaintiff
is entitled, pursuant to Tex. Civ. Prac. & Rem. Code § 37.009, to recover its costs and reasonable
and necessary attorneys’ fees incurred in compelling Defendant to perform its contractual
obligations.
XI.
DAMAGES OF PLAINTIFF CARLOS DARIO GIRALDO
11.1 As a proximate cause of Defendant’s violations and the occurrence made the basis
of this suit, Plaintiff, CARLOS DARIO GIRALDO, was caused to suffer damages and has
incurred the following damages:
a) The physical pain and suffering incurred by Plaintiff, as a result of the incident in
question up to the time of trial and which in all reasonable probability will be incurred in
the future;
b) The mental anguish suffered by Plaintiff as a result of the incident in question up to the
time of trial and which in all reasonable probability will be incurred in the future;
Plaintiff’s Original Petition Page 8
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
c) The physical impairment suffered by Plaintiff, which has occurred as a result of the
incident in question up to the time of trial and which in all reasonable probability will be
incurred in the future;
d) The physical disfigurement suffered by Plaintiff, which has occurred as a result of the
incident in question up to the time of trial and in the future;
e) The amount of reasonable medical expenses necessarily incurred in the treatment of
Plaintiff’s injuries which plaintiff has incurred up to the time of trial;
f) The reasonable medical expenses and life care needs of Plaintiff necessary to treat his
injuries and sustain him for the remainder of his life, which in all reasonable medical
probability will be incurred in the future;
g) The loss of earning capacity incurred by Plaintiff, which has been incurred as a result of
the incident in question;
h) The lost wages incurred by Plaintiff, as a result of the incident in question up to the time
of trial; and
i) The loss of enjoyment of life, which will, in all reasonable probability, continue in the
future.
11.2 Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court.
XII.
LIABILITY FOR ATTORNEY FEES
12.1 Pursuant to Tex. Civ. Prac. & Rem. Code § 37.001, et seq., request is made for all
costs and reasonable and necessary attorney's fees incurred by Plaintiff herein, including all fees
necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of
Texas, as the Court deems equitable and just.
XIII.
JURY DEMAND
13.1 Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
Plaintiff’s Original Petition Page 9
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
XIV.
CONDITIONS PRECEDENT
14.1 All conditions precedent to the payment of the benefits due to plaintiff under the
provisions of the Texas Insurance Code for the collection of benefits under both the underinsured
motorist coverage endorsements of the primary and excess/umbrella policy of insurance and the
Texas Uninsured/Underinsured Motorist Statute for this loss have been fully satisfied.
XV.
OBJECTION TO ASSOCIATE JUDGE
15.1 Plaintiff objects to the referral of this case to an associate judge for hearing a trial
on the merits or presiding at a jury trial.
XVI.
PRAYER
16.1 WHEREFORE, PREMISES CONSIDERED, Plaintiff, CARLOS DARIO
GIRALDO, asks that the Court issue citation for the defendant to appear and answer and that
Plaintiff be awarded a judgment against the defendant for the following: actual damages,
prejudgment, and post-judgment interest, court cost, and all other relief to which Plaintiff is
entitled.
Plaintiff’s Original Petition Page 10
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Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-2081-24-E
Respectfully submitted,
GUERRA LAW FIRM
320 Pecan Blvd.
McAllen, Texas 78501
(956) 618-2557 Phone
(956) 618-1690 Fax
Manuel@glf-pc.com
By:
Manuel Guerra, III
Texas Bar No. 00798226
Attorney for Plaintiff
Plaintiff’s Original Petition Page 11
Preview
Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E CAUSE NO. CARLOS DARIO GIRALDO, § IN THE DISTRICT COURT OF Plaintiff § § § § v. § _____ JUDICIAL DISTRICT § FARMERS TEXAS COUNTY § MUTUAL INSURANCE COMPANY, § Defendant § HIDALGO COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES CARLOS DARIO GIRALDO, hereinafter called Plaintiff, complaining of and about FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, hereinafter called Defendant, and for cause of action shows unto the Court the following: I. DISCOVERY CONTROL PLAN 1.1 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.4 because this suit involves only monetary relief totaling $1,000,000.00 or more, including damages of any kind, penalties, court costs, expenses, and prejudgment interest. 1.2 Plaintiff has suffered losses and damages in a sum within the jurisdictional limits of the Court and for which this lawsuit is brought. Plaintiff seeks monetary relief of $1,000,000.00 or more and nonmonetary relief. Tex. R. Civ. P. 47(c)(4). Plaintiff reserves the right to either file a trial amendment or an amended pleading on the issue of damages if subsequent evidence shows that the range of damages is either too high or too low. II. PARTIES AND SERVICE 2.1 Plaintiff, CARLOS DARIO GIRALDO, is an individual residing in Texas. Plaintiff’s Original Petition Page 1 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E 2.2 Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY is a Texas Insurance Company organized under the laws of the State of Texas. Service of process on the Defendant may be effected by serving its registered agent, Corporation Service Company, 211 E. 7th St., Ste. 620, Austin, Texas 78701-3218, or wherever they may be found. III. JURISDICTION AND VENUE 3.1 This suit is brought pursuant to the law of negligence, contract law, and the Texas Insurance Code. Furthermore, the venue is proper in Hidalgo County since the Plaintiff (the beneficiaries of the insurance policy in question insured by the Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY resided in Hidalgo County, Texas, at the time the cause of action accrued and continued to the present still reside in Hidalgo County, Texas. See Texas Civil Practices and Remedies Code (CPRC) Sections 15.002(a), 15.032, and 15.038, as well as Texas Insurance Code Section 1952.110. IV. FACTS 4.1 On or about January 31, 2020, the plaintiff traveled southbound on the 5500 block of N. McColl Road in Edinburg, Texas. As the Plaintiff began to slow down due to traffic turning in front of him, the tortfeasor, Tiffany Marie Espericueta, who was also traveling southbound behind the Plaintiff’s vehicle, failed to control her speed and maintain a safe distance between vehicles and collided into the rear of the Plaintiff’s vehicle. 4.2 The legal damages suffered by the Plaintiff as hereinbelow set forth exceed the maximum per accident bodily injury liability limits of coverage provided by the tortfeasor, Ms. Espericueta, via her policy (#347 9014-B03-53F 002) of automobile liability insurance with State Farm Mutual Automobile Insurance Company. Therefore, the tortfeasor, Ms. Espericueta, Plaintiff’s Original Petition Page 2 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E is an underinsured motorist as that term is defined by the Texas Insurance Code and also as such term is defined in the Plaintiff's own automobile insurance policy with the Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY. 4.3 Plaintiff hereby claims benefits due under the uninsured/underinsured motorist provision of the insurance policy issued by Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY (i.e., policy #045508931), which was in force and effect and provided coverage to the Plaintiff on January 31, 2020. 4.4 All conditions precedent and terms of policy # 045508931 from Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY required to be met prior to filing this suit have heretofore been satisfied. V. UNINSURED/UNDERINSURED MOTORISTS COVERAGE 5.1 Prior to January 31, 2020, the defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, issued to CARLOS DARIO GIRALDO a standard form automobile insurance policy in effect on the date of injury, which provided Plaintiff with certain types of automobile liability insurance coverage. 5.2 This policy provides, in its “Uninsured/Underinsured Motorist Coverage” provisions, that it will pay damages that a covered person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injuries sustained by a covered person or property damage caused by an accident. 5.3 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY did not, in writing, reject the Uninsured/Underinsured Motorist Coverage mentioned above at any time prior to the date in question and under the terms and provisions of this policy and of Tex. Ins. Code Plaintiff’s Original Petition Page 3 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E Ann., under the policy, Plaintiff is entitled to recover under the uninsured/underinsured motorist coverage provision of the automobile liability insurance policy identified herein. 5.4 Tiffany Marie Espericueta was protected by liability insurance coverage that did not completely satisfy the plaintiff’s damages. Under the terms and provisions of the aforementioned policy, Tiffany Marie Espericueta is considered “an uninsured/underinsured motorist.” 5.5 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY acknowledged the plaintiff's claim for benefits due but consistently and continuously refused to pay the claim after all requested information was submitted. 5.6 FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY is engaging in unfair settlement practices by failing to pay for or allow for any form of compensation for pain and suffering to which Plaintiff is entitled and requiring that Plaintiff file suit in order to enforce his rights under the contract of insurance in violations of the Texas Insurance Code and the Texas Deceptive Trade Practices & Consumer Protection Act which have occurred to date relating to Defendant’s failure to adhere to the provisions of Section 542.003 of the Texas Insurance Code. VI. COUNT 1 - DECLARATORY RELIEF 6.1 Defendant FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY issued to Plaintiff an Uninsured/Underinsured Motorist Coverage general liability policy number 045508931. On April 1, 2024, Plaintiff delivered to Defendant his Demand for damages under the uninsured/underinsured policy. 6.2 According to the terms of the insurance policy, on or after April 12, 2024, in the event of forwarding the demand letter upon FARMERS TEXAS COUNTY MUTUAL Plaintiff’s Original Petition Page 4 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E INSURANCE COMPANY of which all conditions precedent and required to trigger the underinsured motorist coverage under this policy of insurance have not been satisfied. 6.3 To date, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY has failed and/or refused to fully perform its obligations under the insurance policy in violations of the Texas Insurance Code and the Texas Deceptive Trade Practices & Consumer Protection Act which may have occurred to date relating to your possible failure to adhere to the provisions of Section 542.003 of the Texas Insurance Code. As a consequence of which, Plaintiff has not received the benefit of his bargain with Defendant. In addition, Plaintiff suffered further damages, as described herein, as a consequence of Defendant’s failure to perform its obligations. 6.4 Plaintiff has made a written demand that Defendant perform its obligations to Plaintiff under their insurance policy. A conflict exists between Plaintiff and Defendant as to whether or not Defendant is obligated to pay Plaintiff for damages suffered on January 31, 2020, as a result of the undisputed negligence of Tiffany Marie Espericueta, who is an underinsured motorist. VII. COUNT 2 - VIOLATIONS OF TEXAS INSURANCE CODE AND STATE BOARD OF INSURANCE RULES AND REGULATIONS 7.1 Defendant has engaged in a course of conduct in violation of the Texas Insurance Code and Regulations, including, but not limited to, Regulations promulgated there under, which prohibit unfair and deceptive practices in the business of insurance. Specifically, the defendant has: a) Represented that FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY’s services were of a particular quality when they were of another; b) Represented that the insurance agreement contained, or involved, rights, remedies, or obligations that it did not have or involve; Plaintiff’s Original Petition Page 5 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E c) Misrepresented that claims would be paid in a reasonable and timely manner; d) Failed to deal in good faith with Plaintiff regarding the payment of his underinsured motorist claim by intentionally under-evaluating his claim; e) Effectively wrongfully denied Plaintiff’s underinsured motorist claim by failing to settle Plaintiff’s claim when they knew they owed it, thereby causing Plaintiff to sustain continued injuries; and f) Engaged in unfair, deceptive acts or practices in the business of insurance. 7.2 Such acts and representations by the defendant constitute an unfair practice in the business of insurance and constitute a direct and producing cause of the damages suffered by the Plaintiff. VIII. COUNT 3 - BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING 8.1 By the foregoing conduct described above, the defendant has breached its duties of good faith and fair dealing, which arise between the insured and the insurer pursuant to the relationship established by the subject automobile insurance policy. The breach was a direct cause of actual damages sustained by the Plaintiff. Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, has breached its duty willfully and is liable for damages, of which Plaintiff seeks in an amount sufficient to punish Defendant and deter it and others who might engage in similar conduct. 8.2 Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY’s conduct in connection with Plaintiff’s underinsured motorist claim violated § 541 & 542.003 of the Unfair Claim Settlement Practices Prohibited of the Texas Insurance Code by: a) Knowingly misrepresenting to Plaintiff pertinent facts or policy provisions relating to coverage at issue; b) Failing to acknowledge with reasonable promptness pertinent communications relating to Plaintiff’s claim arising under the insurer's policy; Plaintiff’s Original Petition Page 6 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E c) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under the insurer's policies; d) Not attempting in good faith to effect a prompt, fair, and equitable settlement of Plaintiff’s claim submitted in which liability has become reasonably clear; e) Compelling Plaintiff, its policyholder, to institute a suit to recover an amount due under the policy by offering substantially less than the amount which would ultimately be recovered in a suit brought by the policyholder; and f) Failing to maintain the information required by Section 542.005. 8.3 All of the foregoing acts and omissions are proximate causes of the damages sustained by Plaintiff, for which Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, is liable herein. IX. COUNT 4 - PREEXISTING CONDITION 9.1 Alternatively, if it is shown that Plaintiff, prior to the occurrence, had pre-existing medical, physical, and/or psychological conditions, they have sustained aggravation of such pre- existing medical, physical, and/or psychological conditions. More particularly, if the evidence demonstrates that prior to the occurrence in question, Plaintiff has pre-existing conditions, such conditions at the time of the occurrence were latent, controlled, and/or non-debilitating. 9.2 The tortfeasor, Tiffany Marie Espericueta's occurrence and conduct have aggravated and accelerated such conditions and/or made Plaintiff more vulnerable or predisposed to subsequent injury and to the effects of subsequent stressors and injuries. 9.3 Further, as a consequence of Plaintiff’s injuries caused by Tiffany Marie Espericueta, Plaintiff has been made more vulnerable and pre-disposed to subsequent further injury, aggravation of the injuries resulting from the occurrence in question, and to the effects of Plaintiff’s Original Petition Page 7 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E subsequent stressors. He also has sustained additional mental anguish because of this increased vulnerability, which, in reasonable probability, he will experience for the remainder of his life. X. REMEDIES 10.1 Because of Defendant’s failure to perform its duties under the purchased insurance policy and because of the disagreement between Plaintiff and Defendant over Defendant’s obligation to fully perform its obligations under the insurance policy, Plaintiff is entitled to a declaratory judgment that Defendant owes Plaintiff in the amount of $250,000.00 pursuant to the insurance policy Plaintiff purchased from FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY. Defendant is obligated to pay for Plaintiff’s damages described herein. 10.2 Furthermore, because of Defendant’s failure to honor Plaintiff’s timely written demand for performance, which necessitated Plaintiff preparing and filing this lawsuit, Plaintiff is entitled, pursuant to Tex. Civ. Prac. & Rem. Code § 37.009, to recover its costs and reasonable and necessary attorneys’ fees incurred in compelling Defendant to perform its contractual obligations. XI. DAMAGES OF PLAINTIFF CARLOS DARIO GIRALDO 11.1 As a proximate cause of Defendant’s violations and the occurrence made the basis of this suit, Plaintiff, CARLOS DARIO GIRALDO, was caused to suffer damages and has incurred the following damages: a) The physical pain and suffering incurred by Plaintiff, as a result of the incident in question up to the time of trial and which in all reasonable probability will be incurred in the future; b) The mental anguish suffered by Plaintiff as a result of the incident in question up to the time of trial and which in all reasonable probability will be incurred in the future; Plaintiff’s Original Petition Page 8 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E c) The physical impairment suffered by Plaintiff, which has occurred as a result of the incident in question up to the time of trial and which in all reasonable probability will be incurred in the future; d) The physical disfigurement suffered by Plaintiff, which has occurred as a result of the incident in question up to the time of trial and in the future; e) The amount of reasonable medical expenses necessarily incurred in the treatment of Plaintiff’s injuries which plaintiff has incurred up to the time of trial; f) The reasonable medical expenses and life care needs of Plaintiff necessary to treat his injuries and sustain him for the remainder of his life, which in all reasonable medical probability will be incurred in the future; g) The loss of earning capacity incurred by Plaintiff, which has been incurred as a result of the incident in question; h) The lost wages incurred by Plaintiff, as a result of the incident in question up to the time of trial; and i) The loss of enjoyment of life, which will, in all reasonable probability, continue in the future. 11.2 Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court. XII. LIABILITY FOR ATTORNEY FEES 12.1 Pursuant to Tex. Civ. Prac. & Rem. Code § 37.001, et seq., request is made for all costs and reasonable and necessary attorney's fees incurred by Plaintiff herein, including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just. XIII. JURY DEMAND 13.1 Plaintiff demands a jury trial and tenders the appropriate fee with this petition. Plaintiff’s Original Petition Page 9 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E XIV. CONDITIONS PRECEDENT 14.1 All conditions precedent to the payment of the benefits due to plaintiff under the provisions of the Texas Insurance Code for the collection of benefits under both the underinsured motorist coverage endorsements of the primary and excess/umbrella policy of insurance and the Texas Uninsured/Underinsured Motorist Statute for this loss have been fully satisfied. XV. OBJECTION TO ASSOCIATE JUDGE 15.1 Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial. XVI. PRAYER 16.1 WHEREFORE, PREMISES CONSIDERED, Plaintiff, CARLOS DARIO GIRALDO, asks that the Court issue citation for the defendant to appear and answer and that Plaintiff be awarded a judgment against the defendant for the following: actual damages, prejudgment, and post-judgment interest, court cost, and all other relief to which Plaintiff is entitled. Plaintiff’s Original Petition Page 10 Electronically Filed 5/6/2024 1:49 PM Hidalgo County District Clerks Reviewed By: Armando Cantu C-2081-24-E Respectfully submitted, GUERRA LAW FIRM 320 Pecan Blvd. McAllen, Texas 78501 (956) 618-2557 Phone (956) 618-1690 Fax Manuel@glf-pc.com By: Manuel Guerra, III Texas Bar No. 00798226 Attorney for Plaintiff Plaintiff’s Original Petition Page 11