Preview
FILED
5/20/2020 11:17 AM
FELICIA PITRE
1 CIT ESERVE DISTRICT CLERK
DALLAS CO., TEXAS
CAUSE NO. DC-20-05169 Belinda Hernandez DEPUTY
TODD OFFEN § IN THE DISTRICT COURT
§
Plaintiff, §
§
VS. § DALLAS COUNTY, TEXAS
§
CARLA KENYON, JOHN KENYON, §
PROGRESSIVE COUNTY MUTUAL §
INSURANCE COMPANY and STATE §
FARM MUTUAL AUTOMOBILE §
INSURANCE COMPANY §
§
Defendants § 134TH JUDICIAL DISTRICT
______________________________________________________________________________
PLAINTIFF’S FIRST AMENDED PETITION, JURY DEMAND
AND REQUEST FOR DISCLOSURE
______________________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Todd Offen, (hereinafter referred to as "Plaintiff"), in the above entitled
and numbered cause, complaining of Defendants, Carla Kenyon, John Kenyon and Progressive
County Mutual Insurance Company improperly originally named as Progressive Casualty
Insurance Company (hereinafter referred to as "Defendants") and for cause of action would
respectfully show unto the Court and Jury as follows:
I.
DISCOVERY
Discovery in this cause is intended to be conducted under Discovery Control Plan - Level
3 as set forth in TEX. R. CIV. P. 190.4.
II.
PARTIES
Plaintiff Todd Offen is a resident of Collin County, Texas.
Defendant Carla Kenyon is an individual who has been served with process.
Defendant John Kenyon is an individual who has been served with process.
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PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 1
Defendant Progressive Casualty Insurance Company is a Domestic For-Profit Corporation
of Texas and has been served and answered herein.
Defendant State Farm Mutual Automobile Insurance Company is a Domestic For-Profit
Corporation of Texas and may be served via their registered agent Corporation Service
Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218, or wherever said Defendant
may be found.
III.
JURISDICTION/VENUE
Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Texas Civil
Practice and Remedies Code because the incident making the basis of this lawsuit occurred in
Dallas County, Texas. Plaintiff pleads that he seeks monetary relief monetary relief over $500,000.
IV.
FACTS
On or about January 27, 2020, Plaintiff Offen was sitting in his parked vehicle at the Central
Market located at 4349 W. Northwest Highway, Dallas, TX 75220. His engine was off and he
was still wearing his seat belt. Suddenly and without warning Plaintiff was hit head-on by another
vehicle driven by Defendant John Kenyon, and owned by Defendant Carla Kenyon, causing
Plaintiff Offen’s neck to snap backwards and whiplash back. As a result, Defendant John Kenyon’s
negligence was the proximate causes of Plaintiff’s personal injuries and damages.
At the time of the collision made the basis of this litigation, Defendants John Kenyon and
Carla Kenyon were underinsured. Plaintiff was protected against losses relating to bodily injuries
resulting from the use, operation, maintenance, or ownership of an uninsured or underinsured
motor vehicle by a policy of insurance issued or sold by Defendant Progressive and Defendant
State Farm.
V.
CAUSE OF ACTION
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PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 2
A. Negligence of Defendant Carla Kenyon
Plaintiff would show the Court that the negligent acts and omissions of Defendant Carla
Kenyon and statutory violations, as set out herein, separately and collectively, were a direct and
proximate cause of the incident in question and the resulting injuries and damages sustained by
Plaintiff. Any statutory violations constitute negligence per se. The violations, negligent Acts and
omissions are, among others, as follows:
(a) In entrusting the vehicle to Defendant John Kenyon Peck when Defendant Carla
Kenyon knew or should have known that Defendant John Kenyon was an incompetent driver;
(b) In failing to properly train Defendant John Kenyon in the operation of the vehicle
in question; and
(c) Said conduct was with heedless and reckless disregard of the safety of others, which
disregard was the result of conscious indifference to the rights, welfare and safety of those persons
affected by it in violation of the laws of the State of Texas, including Tex. Trans. Code
Ann. §545.401.
B. Negligence of Defendant John Kenyon
Plaintiff would show the Court that the negligent acts and omissions of Defendant John
Kenyon and statutory violations, as set out herein, separately and collectively, were a direct and
proximate cause of the incident in question and the resulting injuries and damages sustained by
Plaintiff. Any statutory violations constitute negligence per se. The violations, negligent acts and
omissions are, among others, as follows:
(b) Defendant John Kenyon violated Tex. Trans. Code Ann. §545.062, by
failing to maintain an assured clear distance between his vehicle and vehicles around him;
(c) Defendant John Kenyon drove his vehicle at the time and on the occasion
in question with heedless and reckless disregard of the safety of others, which disregard was the
result of conscious indifference to the rights, welfare and safety of those persons affected by it in
_____________________________________________________________________________________________________
PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 3
violation of the laws of the State of Texas, including Tex. Trans. Code Ann. §545.401;
(d) Defendant John Kenyon failed to timely apply his brakes; and
(e) Defendant John Kenyon failed to control his vehicle.
VI.
ACTION FOR DECLARATORY JUDGMENT TO DETERMINE RIGHTS
UNDER THE UIM CONTRACT
Plaintiff brings this Declaratory Judgment action under Civil Practice & Remedies Code Ch. 37
Uniform Declaratory Judgments Act to determine Plaintiff’s rights under his UM/UIM insurance
contract with Defendant State Farm Mutual Automobile Insurance Company.
On the date of the subject auto accident January 27, 2020, Plaintiff was covered by an insurance
policy issued by Defendant State Farm. This policy included uninsured/underinsured motorists’
coverage. Plaintiff was a valid “covered person” under this policy. On or about January 27, 2020,
Plaintiff was involved in a motor vehicle accident in which the other driver was an underinsured
motorist. As a result of the accident caused by the negligence of a third-party tortfeasor, Plaintiff
incurred damages far in excess of the liability insurance and/or the statutory limits of the third-party
tortfeasor. Plaintiff is entitled to the benefits under the Underinsured Motorists policy.
Defendant State Farm was timely informed of the accident and that Plaintiff intended to claim under
uninsured/underinsured benefits. All conditions precedent has been performed or have occurred as
required by Texas Rule of Civil Procedure 54.
Plaintiff brings this Declaratory Judgment action under Civil Practice & Remedies Code Ch. 37
Uniform Declaratory Judgments Act to determine Plaintiff’s rights under his UM/UIM insurance
contract with Defendant Progressive County Mutual Insurance Company.
On the date of the subject auto accident January 27, 2020, Plaintiff was covered by an insurance
policy issued by Defendant Progressive. This policy included uninsured/underinsured motorists’
coverage. Plaintiff was a valid “covered person” under this policy. On or about January 27, 2020,
_____________________________________________________________________________________________________
PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 4
Plaintiff was involved in a motor vehicle accident in which the other driver was an underinsured
motorist. As a result of the accident caused by the negligence of a third-party tortfeasor, Plaintiff
incurred damages far in excess of the liability insurance and/or the statutory limits of the third-party
tortfeasor. Plaintiff is entitled to the benefits under the Underinsured Motorists policy.
Defendant Progressive was timely informed of the accident and that Plaintiff intended to claim
under uninsured/underinsured benefits. All conditions precedent has been performed or have occurred as
required by Texas Rule of Civil Procedure 54.
Plaintiff seeks a Declaratory Judgment from the Court that:
1) Defendant John Kenyon, was negligent and that said negligence was the proximate cause of
Plaintiff’s damages;
2) Establishes the amount of Plaintiff’s damages proximately caused by said negligence;
3) Plaintiff’s damages exceed Defendant Kenyon’s available insurance coverage and/or the
statutory limits;
4) The amount of underinsured motorist benefits that Plaintiff is entitled to recover under the
subject UIM/UM insurance contract with Defendant State Farm, after all applicable offsets and credits.
5) The amount of underinsured motorist benefits that Plaintiff is entitled to recover under the
subject UIM/UM insurance contract with Defendant Progressive, after all applicable offsets and credits.
VII.
CLAIM FOR PREJUDGMENT AND POST-JUDGMENT INTEREST
Plaintiff claims all lawful pre-judgment and post-judgment interest on the damages
suffered by him.
VIII.
DAMAGES
Plaintiff's damages include past, and probable future loss, which includes:
(a) pain and mental anguish;
(b) loss of earnings and earning capacity;
(c) physical impairment;
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PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 5
(d) necessary medical, therapeutic, pharmaceutical and hospital care, including rehabilitative
services and devices; and
(e) disfigurement.
Plaintiff alleges that his damages exceed the minimum jurisdictional limits 0f this Court,
as required by Rule 47 of the Texas Rules 0f Civil Procedure. As required by Rule 47(c) of the
Texas Rules 0f Civil Procedure, Plaintiff’s counsel states that Plaintiff seeks monetary relief over
$500,000.00. The amount of monetary actually awarded, however, Will ultimately be determined
by a Dallas County Jury. Plaintiff also seeks pre-judgment and post-judgment interest at the
highest legal rate.
IX.
JURY DEMAND
COMES NOW the Plaintiff and demands a Jury trial on the issues in this case and
respectfully request that this cause be placed 0n the Jury Docket.
X.
REQUEST FOR DISCLOSURE
Plaintiff requests that each Defendants disclose, within 50 days 0f the date 0f service all
materials and information described in Rule 194(a) through (1) of the Texas Rules 0f Civil
Procedure.
XI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffprays that Defendants be cited t0
appear and answer herein and that upon the trialof this cause that Plaintiff has judgment against
Defendants for all 0f his damages as set out herein, pre-judgment interest at the highest legal rate
allowed by law, post-judgment interest at the highest legal rate allowed by law, all cost 0f court,
and for such other and further relief, both general and special, either at law 0r in equity, t0 which
Plaintiff may show himselfjustly entitled.
PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 6
Respectfully submitted,
CLARK & McCREA
/s/ Collen A. Clark
CLARK & McCREA
Collen A. Clark
State Bar N0. 04309100
Mitchell E. McCrea
State Bar No. 24041435
Jacob von Plonski
State Bar No. 24098554
3500 Maple Ave., Suite 1250
Dallas, Texas 75219
Tel: 214—780-0500
Fax: 214-780-0501
E-mail: eservice@clarkmccrea.com
COUNSEL FOR PLAINTIFF
CERTIFICATE OF SERVICE
This will certify that a true and correct copy 0f the foregoing instrument has been served
on all attorneys of record in this cause 0f action in accordance with the Rule 21a. of the Texas
Rules of Civil Procedure on the 20th day of May, 2020.
Randall G. Walters
WALTERS, BALIDO & CRAIN, L.L.P.
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Kamela A. Wilkinson
SUZANNE I. CALVERT & ASSOCIATES
900 Jackson Street, Suite 700
Dallas, TX 75202
/s/Jacob van Plonski
JACOB VON PLONSKI
PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 7
Preview
FILED 5/20/2020 11:17 AM FELICIA PITRE 1 CIT ESERVE DISTRICT CLERK DALLAS CO., TEXAS CAUSE NO. DC-20-05169 Belinda Hernandez DEPUTY TODD OFFEN § IN THE DISTRICT COURT § Plaintiff, § § VS. § DALLAS COUNTY, TEXAS § CARLA KENYON, JOHN KENYON, § PROGRESSIVE COUNTY MUTUAL § INSURANCE COMPANY and STATE § FARM MUTUAL AUTOMOBILE § INSURANCE COMPANY § § Defendants § 134TH JUDICIAL DISTRICT ______________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION, JURY DEMAND AND REQUEST FOR DISCLOSURE ______________________________________________________________________________ TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Todd Offen, (hereinafter referred to as "Plaintiff"), in the above entitled and numbered cause, complaining of Defendants, Carla Kenyon, John Kenyon and Progressive County Mutual Insurance Company improperly originally named as Progressive Casualty Insurance Company (hereinafter referred to as "Defendants") and for cause of action would respectfully show unto the Court and Jury as follows: I. DISCOVERY Discovery in this cause is intended to be conducted under Discovery Control Plan - Level 3 as set forth in TEX. R. CIV. P. 190.4. II. PARTIES Plaintiff Todd Offen is a resident of Collin County, Texas. Defendant Carla Kenyon is an individual who has been served with process. Defendant John Kenyon is an individual who has been served with process. _____________________________________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 1 Defendant Progressive Casualty Insurance Company is a Domestic For-Profit Corporation of Texas and has been served and answered herein. Defendant State Farm Mutual Automobile Insurance Company is a Domestic For-Profit Corporation of Texas and may be served via their registered agent Corporation Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218, or wherever said Defendant may be found. III. JURISDICTION/VENUE Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code because the incident making the basis of this lawsuit occurred in Dallas County, Texas. Plaintiff pleads that he seeks monetary relief monetary relief over $500,000. IV. FACTS On or about January 27, 2020, Plaintiff Offen was sitting in his parked vehicle at the Central Market located at 4349 W. Northwest Highway, Dallas, TX 75220. His engine was off and he was still wearing his seat belt. Suddenly and without warning Plaintiff was hit head-on by another vehicle driven by Defendant John Kenyon, and owned by Defendant Carla Kenyon, causing Plaintiff Offen’s neck to snap backwards and whiplash back. As a result, Defendant John Kenyon’s negligence was the proximate causes of Plaintiff’s personal injuries and damages. At the time of the collision made the basis of this litigation, Defendants John Kenyon and Carla Kenyon were underinsured. Plaintiff was protected against losses relating to bodily injuries resulting from the use, operation, maintenance, or ownership of an uninsured or underinsured motor vehicle by a policy of insurance issued or sold by Defendant Progressive and Defendant State Farm. V. CAUSE OF ACTION _____________________________________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 2 A. Negligence of Defendant Carla Kenyon Plaintiff would show the Court that the negligent acts and omissions of Defendant Carla Kenyon and statutory violations, as set out herein, separately and collectively, were a direct and proximate cause of the incident in question and the resulting injuries and damages sustained by Plaintiff. Any statutory violations constitute negligence per se. The violations, negligent Acts and omissions are, among others, as follows: (a) In entrusting the vehicle to Defendant John Kenyon Peck when Defendant Carla Kenyon knew or should have known that Defendant John Kenyon was an incompetent driver; (b) In failing to properly train Defendant John Kenyon in the operation of the vehicle in question; and (c) Said conduct was with heedless and reckless disregard of the safety of others, which disregard was the result of conscious indifference to the rights, welfare and safety of those persons affected by it in violation of the laws of the State of Texas, including Tex. Trans. Code Ann. §545.401. B. Negligence of Defendant John Kenyon Plaintiff would show the Court that the negligent acts and omissions of Defendant John Kenyon and statutory violations, as set out herein, separately and collectively, were a direct and proximate cause of the incident in question and the resulting injuries and damages sustained by Plaintiff. Any statutory violations constitute negligence per se. The violations, negligent acts and omissions are, among others, as follows: (b) Defendant John Kenyon violated Tex. Trans. Code Ann. §545.062, by failing to maintain an assured clear distance between his vehicle and vehicles around him; (c) Defendant John Kenyon drove his vehicle at the time and on the occasion in question with heedless and reckless disregard of the safety of others, which disregard was the result of conscious indifference to the rights, welfare and safety of those persons affected by it in _____________________________________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 3 violation of the laws of the State of Texas, including Tex. Trans. Code Ann. §545.401; (d) Defendant John Kenyon failed to timely apply his brakes; and (e) Defendant John Kenyon failed to control his vehicle. VI. ACTION FOR DECLARATORY JUDGMENT TO DETERMINE RIGHTS UNDER THE UIM CONTRACT Plaintiff brings this Declaratory Judgment action under Civil Practice & Remedies Code Ch. 37 Uniform Declaratory Judgments Act to determine Plaintiff’s rights under his UM/UIM insurance contract with Defendant State Farm Mutual Automobile Insurance Company. On the date of the subject auto accident January 27, 2020, Plaintiff was covered by an insurance policy issued by Defendant State Farm. This policy included uninsured/underinsured motorists’ coverage. Plaintiff was a valid “covered person” under this policy. On or about January 27, 2020, Plaintiff was involved in a motor vehicle accident in which the other driver was an underinsured motorist. As a result of the accident caused by the negligence of a third-party tortfeasor, Plaintiff incurred damages far in excess of the liability insurance and/or the statutory limits of the third-party tortfeasor. Plaintiff is entitled to the benefits under the Underinsured Motorists policy. Defendant State Farm was timely informed of the accident and that Plaintiff intended to claim under uninsured/underinsured benefits. All conditions precedent has been performed or have occurred as required by Texas Rule of Civil Procedure 54. Plaintiff brings this Declaratory Judgment action under Civil Practice & Remedies Code Ch. 37 Uniform Declaratory Judgments Act to determine Plaintiff’s rights under his UM/UIM insurance contract with Defendant Progressive County Mutual Insurance Company. On the date of the subject auto accident January 27, 2020, Plaintiff was covered by an insurance policy issued by Defendant Progressive. This policy included uninsured/underinsured motorists’ coverage. Plaintiff was a valid “covered person” under this policy. On or about January 27, 2020, _____________________________________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 4 Plaintiff was involved in a motor vehicle accident in which the other driver was an underinsured motorist. As a result of the accident caused by the negligence of a third-party tortfeasor, Plaintiff incurred damages far in excess of the liability insurance and/or the statutory limits of the third-party tortfeasor. Plaintiff is entitled to the benefits under the Underinsured Motorists policy. Defendant Progressive was timely informed of the accident and that Plaintiff intended to claim under uninsured/underinsured benefits. All conditions precedent has been performed or have occurred as required by Texas Rule of Civil Procedure 54. Plaintiff seeks a Declaratory Judgment from the Court that: 1) Defendant John Kenyon, was negligent and that said negligence was the proximate cause of Plaintiff’s damages; 2) Establishes the amount of Plaintiff’s damages proximately caused by said negligence; 3) Plaintiff’s damages exceed Defendant Kenyon’s available insurance coverage and/or the statutory limits; 4) The amount of underinsured motorist benefits that Plaintiff is entitled to recover under the subject UIM/UM insurance contract with Defendant State Farm, after all applicable offsets and credits. 5) The amount of underinsured motorist benefits that Plaintiff is entitled to recover under the subject UIM/UM insurance contract with Defendant Progressive, after all applicable offsets and credits. VII. CLAIM FOR PREJUDGMENT AND POST-JUDGMENT INTEREST Plaintiff claims all lawful pre-judgment and post-judgment interest on the damages suffered by him. VIII. DAMAGES Plaintiff's damages include past, and probable future loss, which includes: (a) pain and mental anguish; (b) loss of earnings and earning capacity; (c) physical impairment; _____________________________________________________________________________________________________ PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 5 (d) necessary medical, therapeutic, pharmaceutical and hospital care, including rehabilitative services and devices; and (e) disfigurement. Plaintiff alleges that his damages exceed the minimum jurisdictional limits 0f this Court, as required by Rule 47 of the Texas Rules 0f Civil Procedure. As required by Rule 47(c) of the Texas Rules 0f Civil Procedure, Plaintiff’s counsel states that Plaintiff seeks monetary relief over $500,000.00. The amount of monetary actually awarded, however, Will ultimately be determined by a Dallas County Jury. Plaintiff also seeks pre-judgment and post-judgment interest at the highest legal rate. IX. JURY DEMAND COMES NOW the Plaintiff and demands a Jury trial on the issues in this case and respectfully request that this cause be placed 0n the Jury Docket. X. REQUEST FOR DISCLOSURE Plaintiff requests that each Defendants disclose, within 50 days 0f the date 0f service all materials and information described in Rule 194(a) through (1) of the Texas Rules 0f Civil Procedure. XI. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffprays that Defendants be cited t0 appear and answer herein and that upon the trialof this cause that Plaintiff has judgment against Defendants for all 0f his damages as set out herein, pre-judgment interest at the highest legal rate allowed by law, post-judgment interest at the highest legal rate allowed by law, all cost 0f court, and for such other and further relief, both general and special, either at law 0r in equity, t0 which Plaintiff may show himselfjustly entitled. PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 6 Respectfully submitted, CLARK & McCREA /s/ Collen A. Clark CLARK & McCREA Collen A. Clark State Bar N0. 04309100 Mitchell E. McCrea State Bar No. 24041435 Jacob von Plonski State Bar No. 24098554 3500 Maple Ave., Suite 1250 Dallas, Texas 75219 Tel: 214—780-0500 Fax: 214-780-0501 E-mail: eservice@clarkmccrea.com COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE This will certify that a true and correct copy 0f the foregoing instrument has been served on all attorneys of record in this cause 0f action in accordance with the Rule 21a. of the Texas Rules of Civil Procedure on the 20th day of May, 2020. Randall G. Walters WALTERS, BALIDO & CRAIN, L.L.P. Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Kamela A. Wilkinson SUZANNE I. CALVERT & ASSOCIATES 900 Jackson Street, Suite 700 Dallas, TX 75202 /s/Jacob van Plonski JACOB VON PLONSKI PLAINTIFF’S FIRST AMENDED PETITION AND JURY DEMAND - PAGE 7