Preview
Filed 10 10 August a fe
Loren ict Clerk
2010-47661 / Court: 215 Have County
CAUSE NO-2016 101015893484
aa By: Sharon Cariton
TRIYAR COMPANIES, LLC §
§ INTHE DISTRICT COURT
§
§
§
Plaintiff 8
vs. § JUDICIAL DIST:
§ @
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FIREMAN’S FUND INSURANCE § tannin TEXAS
COMPANY §
§
Defendant 8 scr REQUESTED
QRIGINAL PETITI
TO THE HONORABLE JUDGE OF SAID count?
Plaintiff Triyar Companies, LLC (ee r”) (hereinafter “Plaintiff” or “Triyar”), files
this Original Petition, Request for Diag Requests for Production, and Voluntary Opt Out
From the Abatement Procedure set. si) the Standing Order, against Fireman’s Fund Insurance
Company (the “Insurance DefepMant” or “Fireman’s Fund”), and in support thereof, would show
as follows: ce ,
Ra I. DISCOVERY LEVEL:
1. Purge to rule 190 of the Texas Rules of Civil Procedure, Plaintiff intends to
conduct sie ter Level 3.
II. VENUE:
2. Venue is appropriate in Harris County, Texas because all or part of a tort was
committed in Harris County, Texas, and the property which is the subject of this suit is located in
Harris County, Texas.III. PARTIES:
3. Triyar is a California partnership doing business in Texas.
4. Fireman’s Fund is a California corporation doing business in Texas.
5. Defendant Fireman’s Fund Insurance Company may be served with process by
Certified Mail Return Receipt Requested at: CT Corporation System, 350 ee Paul Street,
Dallas, TX 75201. Request is made that citation be issued and held for Picky)
6. The Insurance Defendant is in the business of insuranca in the State of Texas.
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The insurance business done by the Insurance Defendant in Texas s atndes, but is not limited to,
the following: Sy
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A. The making and issuing of contracts of insugaivee with the Plaintiff;
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B. The taking or receiving of applicatiog Sor insurance, including the Plaintiff's
application for insurance; oF
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Cc. The receiving or collection remiums, commissions, membership fees,
assessments, dues or other ideration for any insurance or any part thereof,
including any such consider: igh or payments from the Plaintiff; and,
D. The issuance or cetive onan of insurance to residents of this State.
oS IV. BACKGROUND:
a The insurance etndant sold insurance that covered wind, rain and storm
damage, among other rei to Plaintiff. Plaintiff owns Greenspoint Mall located at or near
12300 North Freews im Texas 77060 (“Greenspoint Mall”) and San Jacinto Mall located
at or near 1496( on Jacinto Mall, Baytown, Texas 77521. The actions alleged against the
Insurance Dea lant i in this complaint were committed by the Insurance Defendant and/or its
agents. Plaintiff has owned and operated the malls listed above (the “Properties”) during the
time the Properties were insured.8. The Insurance Defendant provided coverage to Triyar for the businesses and the
Properties under insurance Policy number S 30 MXX 80892212 (and its predecessors) for the
period of June 30, 2008 through June 30, 2009 (the “Policy”). During the term of said Policy, on
or about September 13, 2008, Plaintiff suffered substantial damage as a result of wind and storm.
The ferocious wind caused substantial damage. Plaintiffs Property was devas ted by the wind
and rain damage. Plaintiff promptly reported the devastation of its Pro, ae the Insurance
Defendant pursuant to the terms of the Policy.
9. After the Hurricane, Plaintiff provided open an tinuous access to the
on 2
Properties, and provided information to the Insurance pete) ee and inspectors. The
Insurance Defendant conducted a cursory investigation, angsicaly ignored the damage caused
by the hurricane wind and subsequent water. After SSE vent of half-hearted inspections and
cursory investigations, the Insurance Defendant lone Plaintiff that it intends to underpay
part of the claim and deny other parts of the oie by offering only a fraction of the true loss.
Vv. NATURE F THE CASE; RELIEF SOUGHT
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10. ‘This is a first-party Nance coverage case stemming from total devastation to
properties owned by Plaintiff g4used by wind and rain. Plaintiff seeks a declaration that its
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Properties, contents, code arp Ses, and personal property, are covered by the insurance Policy
issued by the lnsranegeendant Plaintiff seeks damages for breach of contract, violations of
the Texas ius and common law bad faith. Plaintiff also seeks its attorney’s fees,
costs of cour and post-judgment interest.
11. Plaintiff has performed all conditions precedent to its recovery under the Policy.
12. Plaintiff gave timely notice to the Insurance Defendant.
13. The Insurance Defendant assigned the claim to an adjuster to investigate, report
on and adjust the loss.14. Plaintiff provided information to the Insurance Defendant, and opportunities for
Insurance Defendant to inspect the damage to the building, property and third party property.
15. The Insurance Defendant has failed and refused to pay Plaintiff in accordance
with its promises under the Policy.
16. The Insurance Defendant has failed to make an attempt to sertle (nats claims
in a fair manner, although its liability to Plaintiff under the Policy is wi@it dispute. This
conduct is a violation of Tex. Ins. Code Sec. 541.060(a)(2)(A).
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17. The Insurance Defendant has failed to explain ingfesons for its offer of an
inadequate compensation. The Insurance Defendant has ee to offer Plaintiff adequate
compensation without any explanation why full payments not being made. The Insurance
Defendant did not communicate that any future sets or payments would be forthcoming
to pay the entire losses covered under the Poi Phi conduct violates Tex. Ins. Code Sec.
541.060(a)(3). OL
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18. The Insurance Defendegyas failed to affirm or deny coverage within a
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reasonable time. Plaintiff did not rs timely indication of acceptance or rejection regarding
the full and entire claim in waiting from the Insurance Defendant in a timely manner. This
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conduct is a violation of Tee Code Sec. 541.060(a)(4).
19. The Insyaiiee Defendant refused to fully compensate Plaintiff under the terms of
the Policy even th the Insurance Defendant failed to conduct a reasonable investigation. The
Insurance ReStant performed a result-oriented investigation of Plaintiffs claims which
resulted in an unfair, biased and inequitable evaluation of Plaintiff's losses. This conduct is a
violation of Tex. Ins. Code Sec. 541.060(a)(7).
20. The Insurance Defendant failed to meet its obligations under the Texas Insurance
Code regarding timely acknowledging Plaintiffs claims, beginning investigation of Plaintiff's
4claim, and requesting all information reasonably necessary to investigate Plaintiff's claims
within the time period mandated by statute. This conduct is a violation of Tex. Ins. Code Sec.
542.055).
21. The Insurance Defendant failed to accept or deny Plaintiff's full and entire claims
within the time period mandated by statute. This conduct is a violation of TDs. Code Sec.
542.056. we
22. The Insurance Defendant failed to meet its obligation user the Texas Insurance
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Code regarding payment of the claim without delay. This conduct ig Violation of Tex. Ins. Code
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Sec. 542.058. ©
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VI. CLAIMS AGAINST FIREMANS ee:
23. Declaratory Judgment. Plaintiff re-dfighes the foregoing paragraphs. Pursuant
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to the Texas Declaratory Judgment Act, Plana entitled to a declaration that the Policy
provides coverage for the cost to repair th aged property, less only a deductible. Plaintiff
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requests a declaration that the Policy wppmbiguously covers the destruction of its Property.
Alternatively, the Plaintiff reques M Neclaration that the Policy is ambiguous and must be
interpreted in its favor. é
24. Breach of esp ct, Plaintiff re-alleges the foregoing paragraphs. The acts and
omissions of the Insygee Defendant and its agents constitute a breach and/or anticipatory
breach of the InsGiSe Defendant’s contract with Plaintiff. Plaintiff has satisfied all conditions
precedent to Ifillment of its contractual demands. Accordingly, additionally or in the
alternative, Plaintiff bring an action for breach of contract against the Insurance Defendant
pursuant to Texas statutory and common law, including Chapter 38 of the Texas Civil Practice
and Remedies Code, and seek all of its damages for such breach, including actual damages,consequential damages, code upgrades, personal property damage, contents, attomeys’ fees,
prejudgment interest, other litigation expenses and costs of court.
25. Violations of the Texas Insurance Code. Plaintiff re-alleges the foregoing
paragraphs. At all pertinent times, the Insurance Defendant was engaged in the business of
insurance as defined by the Texas Insurance Code. The acts and omissions Aca Insurance
Defendant and its agents constitute one or more violations of the Texas Inguice Code. More
specifically, the Insurance Defendant has, among other violations, tiglated Insurance Code
on
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chapter 542, the Prompt Payment Act. S
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26. | Where statements were made by the one bet Plaintiff reasonably
relied upon them. As a result of the foregoing conduct, wigs and is the producing cause(s)
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of injury and damage to Plaintiff, Plaintiff has sutiet@Mamages including, without limitation,
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actual damages, economic damages, and consea damages. The Insurance Defendant has
violated the Prompt Payment Act, and Plaingfseks 18% damages as a penalty, plus reasonable
and necessary attorney’s fees incurred mgm of these violations.
27. “Bad Faith”. Paid re-alleges the foregoing paragraphs. The Insurance
Defendant has refused to pay oj ed in paying a claim after liability has become reasonably
clear. The Insurance De 8 has refused to pay, delayed in paying or offered grossly
inadequate and unconggigpable sums to settle the claims submitted by Plaintiff. This constitutes
a breach of its cong law duty of good faith and fair dealing’ i.e., it is acting in “bad faith.”
28. @ ireover, the Insurance Defendant has “investigated” and “adjusted” Plaintiff's
claims in a malicious, intentional, fraudulent and/or grossly negligent fashion, has negligently
handled the claim and engaged in negligent claims handling, and Plaintiff is entitled to extra-
contractual damages, including punitive damages. Plaintiff has sustained and continue to sustain
serious damage to its property as a result of the Insurance Defendant’s refusal to honor the
6Policy. The Insurance Defendant is well aware that its actions involve an extreme risk that
Plaintiff will suffer financial damage as a result of its refusal to honor its obligations, yet it is
consciously indifferent to Plaintiff's rights. Plaintiff is entitled to recover its actual damages,
consequential damages, punitive damages, and pre- and post-judgment interest.
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29. Plaintiff's experience is not an isolated case. The acts aa@dinissions of the
VII. PATTERN AND PRACTICE:
Insurance Defendant committed in this case, or similar acts and oml¥sjons, occur with such
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frequency that they constitute a general business practice and Patte & the Insurance Defendant
with regard to handling these types of claims. The ann’ 's entire process is
unfairly designed to reach favorable outcomes for sag Semany at the expense of the
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policyholders. Because of this pattern and practicé(PJaintiff is entitled to recover punitive
damages against the Insurance Defendant. / W
30. Attorney’s fees. Plaintiff ‘S es the foregoing paragraphs. Plaintiff has been
required to engage the services of the unggigned attorneys and have agreed to pay its attorneys
a reasonable fee for services exp sa and to be expended in the prosecution of its claims
against the Insurance Defenden@rowsh the trial court and all levels of the appellate process.
Plaintiff seeks the meovepefi its attorney’s fees and expenses.
31. With er to all causes of action asserted herein, Plaintiff seeks the recovery of
prejudgment and (teen interest.
S VIII. CONDITIONS PRECEDENT:
32. All conditions precedent for Plaintiff to recover under the Policy have been or
will be met.
IX. JURY DEMAND:
33. Plaintiff requests that a jury be convened to try the factual issues in this action.
7X. REQUEST FOR DISCLOSURE:
34. Pursuant to the Texas Rules of Civil Procedure 194, Plaintiff requests that the
Insurance Defendant provide the information required in a Request for Disclosure.
XI. REQUESTS FOR PRODUCTION:
35. Pursuant to the Texas Rules of Civil Procedure, Plaintiff serves the following
Request for Production: @
1) Produce all correspondence or communications with any thitd_ party, including any
adjuster retained by the Insurance Defendant to investigatecx@valuate or handle these
Claims, regarding these Claims or Plaintiff's Hurricane Ike G48
2)
3)
4)
5)
6)
7)
8)
9)
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Produce the entire claim file regarding this claim or Paths Hurricane Ike Claim.
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Produce the entire underwriting file regarding i Qinsurance Defendant’s Policies,
Plaintiff, these claims and-or Plaintiff's Hurrica: Claims.
Produce all inspection reports regarding Plaipesft or its Hurricane Ike losses.
Produce all estimates for damage, ageety damage, business income loss, cost of
replacement, debris removal, or any gthef item of loss or damage in connection with the
Claims and the Properties that are theSebject of this suit.
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Produce all photographs, motig< pictures, video-TV recordings, videos, maps, drawings,
charts, diagrams, measuremékts; surveys or other documents concerning the properties
which are the subject of the uit, damage caused to the properties on or about September
13, 2008 by Hurricane Ik, the events and happenings made the basis of this lawsuit, the
scene of the occurrenc@i the area, persons or objects involved, either made before, at
the time of, or ay fémber 13, 2008, including any photographs made by you or on
your behalf at fe since September 13, 2008, that you, your attorney, your insurance
carrier, your eg or anyone acting on your behalf, may know of or have in its
possession & ol.
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Produce _@§)documents utilized, referred to or generated by you in connection with
prope: ss adjustment or evaluations performed on these Claims or the Properties
whiclNete the subject of this suit.
Produce copies of any and all communications, evaluations, analyses, or reports relating
to, evidencing or conceming any investigation (non-privileged) of the damage to the
Properties which are the subject of this suit by the storm on or about September 13, 2008.
Produce a copy of all investigations Insurance Defendant made of the damage to the
Properties which are the subject of this suit prior to anticipation of litigation in this case.10) Produce any and all documents in Insurance Defendant's possession, custody, or control
relating to Plaintiff's claim for insurance policy benefits through the date suit was filed.
11) Produce a true and correct copy of the entire insurance Policy for coverage of Plaintiff.
12) Produce copies of any and all statements previously made by Plaintiff concerning the
subject matter of this lawsuit, including any written statement signed or otherwise
adopted or approved by the Plaintiff hereto and any stenographic, mechanical, electrical
or other type of recording or any transcription thereof made by Piatt hereto and
contemporaneously recorded. ee
13) Produce copies of any and all documents reflecting any commuti Goa passing between
this Defendant and any expert regarding any insurance Clafetpot the Plaintiff and/or
damage to Plaintiff’s Properties. as
14) Produce all documents utilized or referred to by you x ection with loss evaluations
performed on these Claims. *®
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15) Produce any and all documents of any kind or n; wispin the possession, custody or control
of the Defendant which constitute any adjustitg procedures, claims handling procedures,
investigation procedures, policy manuals@pr claims handling manuals or other
memoranda or procedures containing directOns, suggestions, information, instructions or
advice on how to investigate, evaluatg: faust, estimate or handle property damage or
losses. &
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16) Produce any and all documents o: kind or nature in the possession, custody or control
of the Defendant which con: a. memoranda, directions, instructions, suggestions, or
advice in connection with the specific Claims of Plaintiff's should be handled,
adjusted, estimated, evaludfed‘or investigated.
17) Produce copies of ang all documents that reflect the system of management by
objective utilized ee Surance Defendant particularly in connection with objectives
approved by the ger any in connection with the handling of claims.
18) Produce all ERinents exchanged, produced and/or delivered by any party or other
person or gpipany pursuant to the Requests for Production, subpoena duces tecum
and/or ee ents related in any way to this lawsuit.
19) Prodiee"the Claim files for Plaintiff's Hurricane Ike Claims.
20) Produce the written contracts or agreements between Insurance Defendant and any
companies company that Insurance Defendant hired or retained to adjust or investigate
these Claims (hereinafter the “Adjuster”).
21) Produce the complete paper and electronic claims file from all offices on these losses or
Claims, including reports and correspondence, memos of any type, i.e. telephone slips,
9interoffice communications, hand written notes, etc., tapes audio and video, photographs
original or negatives, instructions regarding investigation, and coverage questions,
statistical documents and draft copies, copy file jacket, loss notice and claim diary.
22) Produce all of Insurance Defendant’s claim files for all losses caused by Hurricane Ike
within | mile of each of the Plaintiff’ss Property.
23) Produce all documents containing information concerning the adjusters and supervisors
who handled or supervised the Claims which are the subject of this sujt, including job
descriptions, original application for employment, annual petra evaluations,
history of salary and promotions or demotions, educational history, @eluding company
courses, curriculum taped or written used for these courses, et of commendation,
complaints, and memberships and professional organizations. %&\,
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24) Produce all documents related to the loss reserve i these Claims including
documents showing original reserves for the claim whigk e subject of this suit, and
all changes, as well as documents showing methods ages teria for setting reserves, and
procedures for setting reserves. QD
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25) Produce Your employee handbook that applied eiployees on your payroll in 2008 and
2009, including the orientation manual and booklets, any information regarding
company philosophies and policies, and Perggppel administration manual.
by you or generated by you in c tion with the Properties or loss evaluations
26) Produce any and all notes, wort ss memoranda or documents utilized
performed on these Claims. ©
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SB done by Insurance Defendant or by someone under
Insurance Defendant, related to the subject Properties
of this lawsuit prior to anticipation of litigation in this
27) Produce a copy of all investi;
the care, custody or contro!
and/or incidents made th
case. SS
28) Produce any and a) ‘uments containing information or any data that has been deleted,
physically destr R discarded, damaged (physically or logically), or overwritten,
whether pursuanty a document retention policy or otherwise, since the commencement
of this litigatign
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29) Produce _@) reports, evaluations, analyses, expert reports, measurements, Xactimate
electri files or print outs, or other documents relating to, mentioning, or concerning
the erties which are the subject of this suit, the damage to the Properties, your
calculation of the damage to the Properties, and/or your investigation of the damage to
the Properties.
30) Produce all documents or written materials relating to, mentioning or concerning training
or educating adjusters, supervisors, managers, or claims handlers to comply with the
Texas Prompt Payment of Claims Act Texas Insurance Code Chptr. 542.050.
1031) Produce your claim log for the Claims which are the subject of this suit.
32) Produce all documents relating to, mentioning, or concerning the Properties which are the
subject of this suit, the Claims which are the subject of this suit, and/or the Policy which
is the subject of this suit.
33) Produce all documents to or from any agent, representative or employee of the Insurance
Defendant to any third party relating to, mentioning, or concerning the Properties which
are the subject of this suit, the Claims which are the subject of this suit, and/or the Policy
which is the subject of this suit. RS
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34) Produce all documents to or from any agent, representative or em, oye of the Insurance
Defendant to Plaintiff relating to, mentioning, or concerning the{Rroperties which are the
subject of this suit, the Claims which are the subject of this stti{Mind/or the Policy which
is the subject of this suit. é&
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35) Produce all claims manuals, training manuals, traj Sa) guidelines, claims handling
manuals. Adjuster manuals, memos, written recor dations, guidelines or other
documents published by, generated by, issued by, mmended by, or mandated by the
Insurance Defendant (or on its behalf) for adju: LS to use or refer to evaluate, process,
handle or adjust claims submitted to the Ins ¢ Defendant for adjustment, handling,
processing or payment. This request is limiged.to those documents in use from January 1,
2006 to the present. x
36) Produce all documents and phot s reflecting, evidencing or concerning the
investigation, analysis, evaluation, oS ction, payment, denial or handling of Plaintiff's
Claims. ®
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37) Produce all documents s mt to identify the person or persons who handled,
processed, adjusted, investigated, and/or denied the Plaintiffs Claims.
38) Produce the first notice notices which the Insurance Defendant received of the claim
which is the subject-d€this suit.
39) Produce all requeSts for information from the Insurance Defendant or its Adjuster to
Plaintiff rel Re 'o the claim or the Property damage which is the subject of this suit.
40) Produce afemails from the Insurance Defendant to Plaintiff, relating to the claim or the
proper Gamage which is the subject of this suit.
41) Produce all emails from Plaintiff to the Insurance Defendant relating to the claim or the
property damage which is the subject of this suit.
42) Produce all emails from the Insurance Defendant to any Adjuster relating to the Claims or
the Property damage which are the subject of this suit.
1143) Produce all documents generated by or on behalf of the Insurance Defendant, or in the
Insurance Defendant’s possession or control, showing, illustrating, mapping, measuring,
recording, reflecting, mentioning, documenting, reporting on, evaluating, or analyzing the
wind velocities that occurred during Hurricane Ike in Harris County, Texas. .
44) Produce all documents generated by or on behalf of the Insurance Defendant, or in the
Insurance Defendant’s possession or control, showing, illustrating, mapping, measuring,
recording, reflecting, mentioning, documenting, reporting on, evaluating, or analyzing
Hurricane Ike.
45) Produce all documents generated by or on behalf of the rn i or in the
Insurance Defendant’s possession or control, showing, illustratin; ipping, measuring,
recording, reflecting, mentioning, documenting, reporting on, luating, or analyzing
damage caused by Hurricane Ike. Ww
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46) Produce all documents generated by or on behalf of the-tygtirance Defendant, or in the
Insurance Defendant’s possession or control, showin, trating, mapping, measuring,
recording, reflecting, mentioning, documenting, repgr#py on, evaluating, or analyzing the
methodology for determining the amount of wind ge in Harris County, Texas.
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47) Produce all documents generated by or on b of the Insurance Defendant, or in the
Insurance Defendant’s possession or contrglgshowing, illustrating, mapping, measuring,
recording, reflecting, mentioning, docume , reporting on, evaluating, or analyzing the
methodology for determining the amo ind damage at the Properties.
48) Produce all documents, including epespoin slides, training materials, papers, seminar
materials, underwriting materials or written explanations or instructions, presented
to, given to, handed out to, r Se to, or mentioned in any workshops or seminars for
agents or adjusters who & ling the Insurance Defendant insurance and/or the
Insurance Defendant me This request is limited to the time frame from January 1,
2008 to the present. &
& XII. VOLUNTARY OPT OUT:
36. —~Plaintiff, he eby unilaterally and voluntarily opts out of the Abatement procedure
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set forth in the St ig Order issued concerning Hurricane Ike claims.
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w XIII. PRAYER
WHEREFORE, Triyar Companies, LLC seeks the following relief:
A. The Court’s declaration that the Policy provides coverage for the damage to the
Properties, less only a deductible;
12B. Alternatively, a ruling that the Policy is ambiguous and must be interpreted in favor of
coverage and in favor of Plaintiff;
C. Damages of at least $22,000,000.00 for Greenspoint Mall and $17,000,000.00 for San
Jacinto Mall against the Insurance Defendant, jointly and severally, for breach of contract,
including actual damages, consequential damages, property damages, usinges income loss,
damage to third party property covered by “care, custody and control one code upgrades,
personal property damage, attorneys’ fees, penalties, pre- and Post
Preview
Filed 10 10 August a fe Loren ict Clerk 2010-47661 / Court: 215 Have County CAUSE NO-2016 101015893484 aa By: Sharon Cariton TRIYAR COMPANIES, LLC § § INTHE DISTRICT COURT § § § Plaintiff 8 vs. § JUDICIAL DIST: § @ Oo FIREMAN’S FUND INSURANCE § tannin TEXAS COMPANY § § Defendant 8 scr REQUESTED QRIGINAL PETITI TO THE HONORABLE JUDGE OF SAID count? Plaintiff Triyar Companies, LLC (ee r”) (hereinafter “Plaintiff” or “Triyar”), files this Original Petition, Request for Diag Requests for Production, and Voluntary Opt Out From the Abatement Procedure set. si) the Standing Order, against Fireman’s Fund Insurance Company (the “Insurance DefepMant” or “Fireman’s Fund”), and in support thereof, would show as follows: ce , Ra I. DISCOVERY LEVEL: 1. Purge to rule 190 of the Texas Rules of Civil Procedure, Plaintiff intends to conduct sie ter Level 3. II. VENUE: 2. Venue is appropriate in Harris County, Texas because all or part of a tort was committed in Harris County, Texas, and the property which is the subject of this suit is located in Harris County, Texas.III. PARTIES: 3. Triyar is a California partnership doing business in Texas. 4. Fireman’s Fund is a California corporation doing business in Texas. 5. Defendant Fireman’s Fund Insurance Company may be served with process by Certified Mail Return Receipt Requested at: CT Corporation System, 350 ee Paul Street, Dallas, TX 75201. Request is made that citation be issued and held for Picky) 6. The Insurance Defendant is in the business of insuranca in the State of Texas. oS The insurance business done by the Insurance Defendant in Texas s atndes, but is not limited to, the following: Sy > A. The making and issuing of contracts of insugaivee with the Plaintiff; Q B. The taking or receiving of applicatiog Sor insurance, including the Plaintiff's application for insurance; oF & Cc. The receiving or collection remiums, commissions, membership fees, assessments, dues or other ideration for any insurance or any part thereof, including any such consider: igh or payments from the Plaintiff; and, D. The issuance or cetive onan of insurance to residents of this State. oS IV. BACKGROUND: a The insurance etndant sold insurance that covered wind, rain and storm damage, among other rei to Plaintiff. Plaintiff owns Greenspoint Mall located at or near 12300 North Freews im Texas 77060 (“Greenspoint Mall”) and San Jacinto Mall located at or near 1496( on Jacinto Mall, Baytown, Texas 77521. The actions alleged against the Insurance Dea lant i in this complaint were committed by the Insurance Defendant and/or its agents. Plaintiff has owned and operated the malls listed above (the “Properties”) during the time the Properties were insured.8. The Insurance Defendant provided coverage to Triyar for the businesses and the Properties under insurance Policy number S 30 MXX 80892212 (and its predecessors) for the period of June 30, 2008 through June 30, 2009 (the “Policy”). During the term of said Policy, on or about September 13, 2008, Plaintiff suffered substantial damage as a result of wind and storm. The ferocious wind caused substantial damage. Plaintiffs Property was devas ted by the wind and rain damage. Plaintiff promptly reported the devastation of its Pro, ae the Insurance Defendant pursuant to the terms of the Policy. 9. After the Hurricane, Plaintiff provided open an tinuous access to the on 2 Properties, and provided information to the Insurance pete) ee and inspectors. The Insurance Defendant conducted a cursory investigation, angsicaly ignored the damage caused by the hurricane wind and subsequent water. After SSE vent of half-hearted inspections and cursory investigations, the Insurance Defendant lone Plaintiff that it intends to underpay part of the claim and deny other parts of the oie by offering only a fraction of the true loss. Vv. NATURE F THE CASE; RELIEF SOUGHT G 10. ‘This is a first-party Nance coverage case stemming from total devastation to properties owned by Plaintiff g4used by wind and rain. Plaintiff seeks a declaration that its O Properties, contents, code arp Ses, and personal property, are covered by the insurance Policy issued by the lnsranegeendant Plaintiff seeks damages for breach of contract, violations of the Texas ius and common law bad faith. Plaintiff also seeks its attorney’s fees, costs of cour and post-judgment interest. 11. Plaintiff has performed all conditions precedent to its recovery under the Policy. 12. Plaintiff gave timely notice to the Insurance Defendant. 13. The Insurance Defendant assigned the claim to an adjuster to investigate, report on and adjust the loss.14. Plaintiff provided information to the Insurance Defendant, and opportunities for Insurance Defendant to inspect the damage to the building, property and third party property. 15. The Insurance Defendant has failed and refused to pay Plaintiff in accordance with its promises under the Policy. 16. The Insurance Defendant has failed to make an attempt to sertle (nats claims in a fair manner, although its liability to Plaintiff under the Policy is wi@it dispute. This conduct is a violation of Tex. Ins. Code Sec. 541.060(a)(2)(A). WG 17. The Insurance Defendant has failed to explain ingfesons for its offer of an inadequate compensation. The Insurance Defendant has ee to offer Plaintiff adequate compensation without any explanation why full payments not being made. The Insurance Defendant did not communicate that any future sets or payments would be forthcoming to pay the entire losses covered under the Poi Phi conduct violates Tex. Ins. Code Sec. 541.060(a)(3). OL S 18. The Insurance Defendegyas failed to affirm or deny coverage within a WS reasonable time. Plaintiff did not rs timely indication of acceptance or rejection regarding the full and entire claim in waiting from the Insurance Defendant in a timely manner. This Oo conduct is a violation of Tee Code Sec. 541.060(a)(4). 19. The Insyaiiee Defendant refused to fully compensate Plaintiff under the terms of the Policy even th the Insurance Defendant failed to conduct a reasonable investigation. The Insurance ReStant performed a result-oriented investigation of Plaintiffs claims which resulted in an unfair, biased and inequitable evaluation of Plaintiff's losses. This conduct is a violation of Tex. Ins. Code Sec. 541.060(a)(7). 20. The Insurance Defendant failed to meet its obligations under the Texas Insurance Code regarding timely acknowledging Plaintiffs claims, beginning investigation of Plaintiff's 4claim, and requesting all information reasonably necessary to investigate Plaintiff's claims within the time period mandated by statute. This conduct is a violation of Tex. Ins. Code Sec. 542.055). 21. The Insurance Defendant failed to accept or deny Plaintiff's full and entire claims within the time period mandated by statute. This conduct is a violation of TDs. Code Sec. 542.056. we 22. The Insurance Defendant failed to meet its obligation user the Texas Insurance WZ Code regarding payment of the claim without delay. This conduct ig Violation of Tex. Ins. Code “ Sec. 542.058. © >» e@ VI. CLAIMS AGAINST FIREMANS ee: 23. Declaratory Judgment. Plaintiff re-dfighes the foregoing paragraphs. Pursuant eB to the Texas Declaratory Judgment Act, Plana entitled to a declaration that the Policy provides coverage for the cost to repair th aged property, less only a deductible. Plaintiff © requests a declaration that the Policy wppmbiguously covers the destruction of its Property. Alternatively, the Plaintiff reques M Neclaration that the Policy is ambiguous and must be interpreted in its favor. é 24. Breach of esp ct, Plaintiff re-alleges the foregoing paragraphs. The acts and omissions of the Insygee Defendant and its agents constitute a breach and/or anticipatory breach of the InsGiSe Defendant’s contract with Plaintiff. Plaintiff has satisfied all conditions precedent to Ifillment of its contractual demands. Accordingly, additionally or in the alternative, Plaintiff bring an action for breach of contract against the Insurance Defendant pursuant to Texas statutory and common law, including Chapter 38 of the Texas Civil Practice and Remedies Code, and seek all of its damages for such breach, including actual damages,consequential damages, code upgrades, personal property damage, contents, attomeys’ fees, prejudgment interest, other litigation expenses and costs of court. 25. Violations of the Texas Insurance Code. Plaintiff re-alleges the foregoing paragraphs. At all pertinent times, the Insurance Defendant was engaged in the business of insurance as defined by the Texas Insurance Code. The acts and omissions Aca Insurance Defendant and its agents constitute one or more violations of the Texas Inguice Code. More specifically, the Insurance Defendant has, among other violations, tiglated Insurance Code on & chapter 542, the Prompt Payment Act. S XE 26. | Where statements were made by the one bet Plaintiff reasonably relied upon them. As a result of the foregoing conduct, wigs and is the producing cause(s) O of injury and damage to Plaintiff, Plaintiff has sutiet@Mamages including, without limitation, WF, actual damages, economic damages, and consea damages. The Insurance Defendant has violated the Prompt Payment Act, and Plaingfseks 18% damages as a penalty, plus reasonable and necessary attorney’s fees incurred mgm of these violations. 27. “Bad Faith”. Paid re-alleges the foregoing paragraphs. The Insurance Defendant has refused to pay oj ed in paying a claim after liability has become reasonably clear. The Insurance De 8 has refused to pay, delayed in paying or offered grossly inadequate and unconggigpable sums to settle the claims submitted by Plaintiff. This constitutes a breach of its cong law duty of good faith and fair dealing’ i.e., it is acting in “bad faith.” 28. @ ireover, the Insurance Defendant has “investigated” and “adjusted” Plaintiff's claims in a malicious, intentional, fraudulent and/or grossly negligent fashion, has negligently handled the claim and engaged in negligent claims handling, and Plaintiff is entitled to extra- contractual damages, including punitive damages. Plaintiff has sustained and continue to sustain serious damage to its property as a result of the Insurance Defendant’s refusal to honor the 6Policy. The Insurance Defendant is well aware that its actions involve an extreme risk that Plaintiff will suffer financial damage as a result of its refusal to honor its obligations, yet it is consciously indifferent to Plaintiff's rights. Plaintiff is entitled to recover its actual damages, consequential damages, punitive damages, and pre- and post-judgment interest. NS 29. Plaintiff's experience is not an isolated case. The acts aa@dinissions of the VII. PATTERN AND PRACTICE: Insurance Defendant committed in this case, or similar acts and oml¥sjons, occur with such on frequency that they constitute a general business practice and Patte & the Insurance Defendant with regard to handling these types of claims. The ann’ 's entire process is unfairly designed to reach favorable outcomes for sag Semany at the expense of the Or policyholders. Because of this pattern and practicé(PJaintiff is entitled to recover punitive damages against the Insurance Defendant. / W 30. Attorney’s fees. Plaintiff ‘S es the foregoing paragraphs. Plaintiff has been required to engage the services of the unggigned attorneys and have agreed to pay its attorneys a reasonable fee for services exp sa and to be expended in the prosecution of its claims against the Insurance Defenden@rowsh the trial court and all levels of the appellate process. Plaintiff seeks the meovepefi its attorney’s fees and expenses. 31. With er to all causes of action asserted herein, Plaintiff seeks the recovery of prejudgment and (teen interest. S VIII. CONDITIONS PRECEDENT: 32. All conditions precedent for Plaintiff to recover under the Policy have been or will be met. IX. JURY DEMAND: 33. Plaintiff requests that a jury be convened to try the factual issues in this action. 7X. REQUEST FOR DISCLOSURE: 34. Pursuant to the Texas Rules of Civil Procedure 194, Plaintiff requests that the Insurance Defendant provide the information required in a Request for Disclosure. XI. REQUESTS FOR PRODUCTION: 35. Pursuant to the Texas Rules of Civil Procedure, Plaintiff serves the following Request for Production: @ 1) Produce all correspondence or communications with any thitd_ party, including any adjuster retained by the Insurance Defendant to investigatecx@valuate or handle these Claims, regarding these Claims or Plaintiff's Hurricane Ike G48 2) 3) 4) 5) 6) 7) 8) 9) OS Produce the entire claim file regarding this claim or Paths Hurricane Ike Claim. g Produce the entire underwriting file regarding i Qinsurance Defendant’s Policies, Plaintiff, these claims and-or Plaintiff's Hurrica: Claims. Produce all inspection reports regarding Plaipesft or its Hurricane Ike losses. Produce all estimates for damage, ageety damage, business income loss, cost of replacement, debris removal, or any gthef item of loss or damage in connection with the Claims and the Properties that are theSebject of this suit. @ Produce all photographs, motig< pictures, video-TV recordings, videos, maps, drawings, charts, diagrams, measuremékts; surveys or other documents concerning the properties which are the subject of the uit, damage caused to the properties on or about September 13, 2008 by Hurricane Ik, the events and happenings made the basis of this lawsuit, the scene of the occurrenc@i the area, persons or objects involved, either made before, at the time of, or ay fémber 13, 2008, including any photographs made by you or on your behalf at fe since September 13, 2008, that you, your attorney, your insurance carrier, your eg or anyone acting on your behalf, may know of or have in its possession & ol. fe Produce _@§)documents utilized, referred to or generated by you in connection with prope: ss adjustment or evaluations performed on these Claims or the Properties whiclNete the subject of this suit. Produce copies of any and all communications, evaluations, analyses, or reports relating to, evidencing or conceming any investigation (non-privileged) of the damage to the Properties which are the subject of this suit by the storm on or about September 13, 2008. Produce a copy of all investigations Insurance Defendant made of the damage to the Properties which are the subject of this suit prior to anticipation of litigation in this case.10) Produce any and all documents in Insurance Defendant's possession, custody, or control relating to Plaintiff's claim for insurance policy benefits through the date suit was filed. 11) Produce a true and correct copy of the entire insurance Policy for coverage of Plaintiff. 12) Produce copies of any and all statements previously made by Plaintiff concerning the subject matter of this lawsuit, including any written statement signed or otherwise adopted or approved by the Plaintiff hereto and any stenographic, mechanical, electrical or other type of recording or any transcription thereof made by Piatt hereto and contemporaneously recorded. ee 13) Produce copies of any and all documents reflecting any commuti Goa passing between this Defendant and any expert regarding any insurance Clafetpot the Plaintiff and/or damage to Plaintiff’s Properties. as 14) Produce all documents utilized or referred to by you x ection with loss evaluations performed on these Claims. *® WS 15) Produce any and all documents of any kind or n; wispin the possession, custody or control of the Defendant which constitute any adjustitg procedures, claims handling procedures, investigation procedures, policy manuals@pr claims handling manuals or other memoranda or procedures containing directOns, suggestions, information, instructions or advice on how to investigate, evaluatg: faust, estimate or handle property damage or losses. & © 16) Produce any and all documents o: kind or nature in the possession, custody or control of the Defendant which con: a. memoranda, directions, instructions, suggestions, or advice in connection with the specific Claims of Plaintiff's should be handled, adjusted, estimated, evaludfed‘or investigated. 17) Produce copies of ang all documents that reflect the system of management by objective utilized ee Surance Defendant particularly in connection with objectives approved by the ger any in connection with the handling of claims. 18) Produce all ERinents exchanged, produced and/or delivered by any party or other person or gpipany pursuant to the Requests for Production, subpoena duces tecum and/or ee ents related in any way to this lawsuit. 19) Prodiee"the Claim files for Plaintiff's Hurricane Ike Claims. 20) Produce the written contracts or agreements between Insurance Defendant and any companies company that Insurance Defendant hired or retained to adjust or investigate these Claims (hereinafter the “Adjuster”). 21) Produce the complete paper and electronic claims file from all offices on these losses or Claims, including reports and correspondence, memos of any type, i.e. telephone slips, 9interoffice communications, hand written notes, etc., tapes audio and video, photographs original or negatives, instructions regarding investigation, and coverage questions, statistical documents and draft copies, copy file jacket, loss notice and claim diary. 22) Produce all of Insurance Defendant’s claim files for all losses caused by Hurricane Ike within | mile of each of the Plaintiff’ss Property. 23) Produce all documents containing information concerning the adjusters and supervisors who handled or supervised the Claims which are the subject of this sujt, including job descriptions, original application for employment, annual petra evaluations, history of salary and promotions or demotions, educational history, @eluding company courses, curriculum taped or written used for these courses, et of commendation, complaints, and memberships and professional organizations. %&\, % y WZ 24) Produce all documents related to the loss reserve i these Claims including documents showing original reserves for the claim whigk e subject of this suit, and all changes, as well as documents showing methods ages teria for setting reserves, and procedures for setting reserves. QD NI 25) Produce Your employee handbook that applied eiployees on your payroll in 2008 and 2009, including the orientation manual and booklets, any information regarding company philosophies and policies, and Perggppel administration manual. by you or generated by you in c tion with the Properties or loss evaluations 26) Produce any and all notes, wort ss memoranda or documents utilized performed on these Claims. © @ SB done by Insurance Defendant or by someone under Insurance Defendant, related to the subject Properties of this lawsuit prior to anticipation of litigation in this 27) Produce a copy of all investi; the care, custody or contro! and/or incidents made th case. SS 28) Produce any and a) ‘uments containing information or any data that has been deleted, physically destr R discarded, damaged (physically or logically), or overwritten, whether pursuanty a document retention policy or otherwise, since the commencement of this litigatign RY 29) Produce _@) reports, evaluations, analyses, expert reports, measurements, Xactimate electri files or print outs, or other documents relating to, mentioning, or concerning the erties which are the subject of this suit, the damage to the Properties, your calculation of the damage to the Properties, and/or your investigation of the damage to the Properties. 30) Produce all documents or written materials relating to, mentioning or concerning training or educating adjusters, supervisors, managers, or claims handlers to comply with the Texas Prompt Payment of Claims Act Texas Insurance Code Chptr. 542.050. 1031) Produce your claim log for the Claims which are the subject of this suit. 32) Produce all documents relating to, mentioning, or concerning the Properties which are the subject of this suit, the Claims which are the subject of this suit, and/or the Policy which is the subject of this suit. 33) Produce all documents to or from any agent, representative or employee of the Insurance Defendant to any third party relating to, mentioning, or concerning the Properties which are the subject of this suit, the Claims which are the subject of this suit, and/or the Policy which is the subject of this suit. RS @ 34) Produce all documents to or from any agent, representative or em, oye of the Insurance Defendant to Plaintiff relating to, mentioning, or concerning the{Rroperties which are the subject of this suit, the Claims which are the subject of this stti{Mind/or the Policy which is the subject of this suit. é& XV NS 35) Produce all claims manuals, training manuals, traj Sa) guidelines, claims handling manuals. Adjuster manuals, memos, written recor dations, guidelines or other documents published by, generated by, issued by, mmended by, or mandated by the Insurance Defendant (or on its behalf) for adju: LS to use or refer to evaluate, process, handle or adjust claims submitted to the Ins ¢ Defendant for adjustment, handling, processing or payment. This request is limiged.to those documents in use from January 1, 2006 to the present. x 36) Produce all documents and phot s reflecting, evidencing or concerning the investigation, analysis, evaluation, oS ction, payment, denial or handling of Plaintiff's Claims. ® O 37) Produce all documents s mt to identify the person or persons who handled, processed, adjusted, investigated, and/or denied the Plaintiffs Claims. 38) Produce the first notice notices which the Insurance Defendant received of the claim which is the subject-d€this suit. 39) Produce all requeSts for information from the Insurance Defendant or its Adjuster to Plaintiff rel Re 'o the claim or the Property damage which is the subject of this suit. 40) Produce afemails from the Insurance Defendant to Plaintiff, relating to the claim or the proper Gamage which is the subject of this suit. 41) Produce all emails from Plaintiff to the Insurance Defendant relating to the claim or the property damage which is the subject of this suit. 42) Produce all emails from the Insurance Defendant to any Adjuster relating to the Claims or the Property damage which are the subject of this suit. 1143) Produce all documents generated by or on behalf of the Insurance Defendant, or in the Insurance Defendant’s possession or control, showing, illustrating, mapping, measuring, recording, reflecting, mentioning, documenting, reporting on, evaluating, or analyzing the wind velocities that occurred during Hurricane Ike in Harris County, Texas. . 44) Produce all documents generated by or on behalf of the Insurance Defendant, or in the Insurance Defendant’s possession or control, showing, illustrating, mapping, measuring, recording, reflecting, mentioning, documenting, reporting on, evaluating, or analyzing Hurricane Ike. 45) Produce all documents generated by or on behalf of the rn i or in the Insurance Defendant’s possession or control, showing, illustratin; ipping, measuring, recording, reflecting, mentioning, documenting, reporting on, luating, or analyzing damage caused by Hurricane Ike. Ww ES 46) Produce all documents generated by or on behalf of the-tygtirance Defendant, or in the Insurance Defendant’s possession or control, showin, trating, mapping, measuring, recording, reflecting, mentioning, documenting, repgr#py on, evaluating, or analyzing the methodology for determining the amount of wind ge in Harris County, Texas. oa 47) Produce all documents generated by or on b of the Insurance Defendant, or in the Insurance Defendant’s possession or contrglgshowing, illustrating, mapping, measuring, recording, reflecting, mentioning, docume , reporting on, evaluating, or analyzing the methodology for determining the amo ind damage at the Properties. 48) Produce all documents, including epespoin slides, training materials, papers, seminar materials, underwriting materials or written explanations or instructions, presented to, given to, handed out to, r Se to, or mentioned in any workshops or seminars for agents or adjusters who & ling the Insurance Defendant insurance and/or the Insurance Defendant me This request is limited to the time frame from January 1, 2008 to the present. & & XII. VOLUNTARY OPT OUT: 36. —~Plaintiff, he eby unilaterally and voluntarily opts out of the Abatement procedure O set forth in the St ig Order issued concerning Hurricane Ike claims. & w XIII. PRAYER WHEREFORE, Triyar Companies, LLC seeks the following relief: A. The Court’s declaration that the Policy provides coverage for the damage to the Properties, less only a deductible; 12B. Alternatively, a ruling that the Policy is ambiguous and must be interpreted in favor of coverage and in favor of Plaintiff; C. Damages of at least $22,000,000.00 for Greenspoint Mall and $17,000,000.00 for San Jacinto Mall against the Insurance Defendant, jointly and severally, for breach of contract, including actual damages, consequential damages, property damages, usinges income loss, damage to third party property covered by “care, custody and control one code upgrades, personal property damage, attorneys’ fees, penalties, pre- and Post