Preview
Filed 09J une 16 P1:38
2009-37861 / Court: 157 Loren J ackson - District Clerk
Harris Coun!
ED101) 015434508
By: Sharon Carlton
Cause No. —----- +
JOSE BARRAGAN, IN THE DISTRICT COURT OF
Plaintiff,
Vv HARRIS COUNTY, TEXAS
TEXAS FAIR PLAN ASSOCIATION,
BRUSH COUNTRY CLAIMS, and
BRIAN BRIGGS,
Defendants. —----- JUDICIAL DISTRICT
Plaintiff's Original Petitio:
Plaintiff Jose Barragan complains of Texas FAIR Plan Association, Brush Country
Claims, and Brian Briggs and would respectfully show the Court the following:
Discovery Level
1 Plaintiff intends for discovery to be conducted under Level 2 of Rule 190 of
the Texas Rules of Civil Procedure.
[urisdiction and Venu
2 The Court has jurisdiction to hear these claims under Texas common law and
Texas statutory law. Venue is proper because all or a substantial part of the events giving rise
to this suit occurred in Harris County, Texas.
Parties
3 Plaintiff is a resident of Harris County, Texas.
4. Defendant Texas FAIR Plan Association is a Texas entity and may be served
at its principal place of business, 5700 S. MoPac Expressway, Building E, Suite 530, Austin,
Texas 78749.
5 Defendant Brush Country Claims, Ltd. is a Texas entity and may be served at
its home office at 101 N. Cameron Street, Alice, Texas 78332.
6 Defendant Brian Briggs is an individual employed by Brush Country Claims,
Ltd. and may be served personally at his residence, 819 Loma Dr., Ojai, CA 93023-3539.
Nature Of The Case
7 Plaintiff suffered catastrophic damage to his property as a result of Hurricane
Ike. In the aftermath, Plaintiff relied on his insurer and his insurer’s agents to help start the
rebuilding process. Specifically, Plaintiff was insured from loss by Texas FAIR Plan
Association (“TFPA”). As part of the process, TFPA hired Brush Country Claims and Brian
Briggs to adjust Plaintiff's property. The above Defendants conspired to and improperly
adjusted Plaintiff's property so that he would not receive the coverage he had originally
contracted with TFPA to receive. Thus, this suit is necessary to recover damages arising from
Defendants’ unfair refusal to pay insurance benefits as represented by its agent and by the
homeowner s policy it sold to the Plaintiff. The Plaintiff seeks relief under the common law,
the Deceptive Trade Practices-Consumer Protection Act, and the Texas Insurance Code.
Conditions Precedent
8 All conditions precedent to recovery have been met or have occurred. Presuit
notice was sent to Defendants more than sixty days before suit was filed.
Agency
9 All acts by Defendants were done by their officers, agents, servants,
employees, or representatives and were done with the full authorization or ratification of
Defendants or were done in the normal and routine course and scope of employment of
Defendants.
Breach of Contract
10. Plaintiff incorporates by reference all facts and circumstances set forth under
the foregoing paragraphs.
11. According to the insurance policies that Plaintiff purchased, Defendants have
the duty to investigate and pay Plaintiff's policy benefits for claims made for damages
caused by hurricane and water damage in the building from such damage.
12. Asa result of this damage, which is covered under Plaintiff’s insurance policy
with Defendants, Plaintiff's property has suffered extensive damage. Defendants have
breached their contractual obligation and the subject insurance policies by failing to pay the
Plaintiff policy benefits for the cost to properly repair the damage to Plaintiffs property. As
a result of this breach of contract, Plaintiff has suffered the damages that are described in this
petition.
Violations of Texas Deceptive Trade Practices Act and Tie-In-Statutes
13. Plaintiff incorporates by reference all facts and circumstances set forth under
the foregoing paragraphs.
14, Defendants’ collective actions constitute violations of the DTPA, including but
not limited to, Sections 17.46(b)(12), (14), (20), (24), and Section 17.50(a)(4) of the TEX.
Bus. & COMM. CoDE. Defendants collectively engaged in false, misleading, or deceptive acts
or practices that included, but were not limited to:
a. Representing that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve, or which are prohibited by law;
Misrepresenting the authority of a salesman, representative, or agent to
negotiate the final terms of a consumer transaction;
Failing to disclose information concerning goods or services which was known
at the time of the transaction if such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer
would not have entered had the information been disclosed;
Using or employing an act or practice in violation of the Texas Insurance
Code;
Unreasonably delaying the investigation, adjustment and resolution of
Plaintiffs’ claim;
Their failure to properly investigate Plaintiff’s claims; and
Hiring of and reliance upon a biased engineer/adjuster to obtain a favorable,
result-oriented report to assist Defendants in low-balling and denying
Plaintiff’s storm damage claim.
15. As described in this petition, Defendants represented to Plaintiff that his
insurance policies and Defendants’ adjusting and investigative services had characteristics or
benefits that it did not have, which gives Plaintiff the right to recover under Section 17.46
(b)(5) of the DTPA;
16. As described in this petition, Defendants represented to Plaintiff that his
insurance policies and Defendants’ adjusting and investigative services were of a particular
standard, quality, or grade when they were of another in violation of Section 17.46 (b)(7) of
the DTPA;
17. By representing that Defendants would pay to repair the damages caused by
wind storm/hail and then not doing so, Defendants have violated Sections 17.46 (b)(5), (7)
and (12) of the DTPA;
18. Defendants have breached an express warranty that the damage caused by
wind storm/hail would be covered under the subject insurance policies. This breach entitles
Plaintiffto recover under Sections 17.46 (b) (12) and (20) and 17.50 (a) (2) of the DTPA;
19. Defendants’ actions, as described in this petition, are unconscionable in that it
took advantage of Plaintiff’s lack of knowledge, ability, and experience to a grossly unfair
degree. Defendants’ unconscionable conduct gives Plaintiff the right to relief under Section
17.50(a)(3) of the DTPA; and
20. Defendants’ conduct, acts, omissions, and failures, as described in this
petition, are unfair practices in the business of insurance in violation of Section 17.50 (a)(4)
of the DTPA.
21. Plaintiff was a consumer and relied upon these false, misleading, or deceptive
acts or practices by Defendants to his detriment. As a direct and proximate result of
Defendants’ collective acts and conduct, Plaintiff has been damaged in an amount in excess
of the minimum jurisdictional limits of this Court, for which Plaintiff now sues. All of the
above-described acts, omissions, and failures of Defendants are a producing cause of
Plaintiff’ s damages that are described in this petition.
22. Because Defendants’ collective actions and conduct were committed
knowingly and intentionally, Plaintiff is entitled to recover, in addition to all damages
described herein, mental anguish damages and additional damages in an amount not to
exceed three times the amount of actual damages for Defendants having knowingly
committed their conduct. Additionally, Plaintiff is entitled to recover damages in an amount
not to exceed three times the amount of mental and actual damages for Defendants having
intentionally committed collectively their conduct.
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23. As a result of Defendants’ unconscionable, misleading, and deceptive actions
and conduct, Plaintiff has been forced to retain the legal services of the undersigned
attorneys to protect and pursue these claims on their behalf. Accordingly, Plaintiff also seeks
to recover his costs and reasonable and necessary attorneys’ fees as permitted under Section
17.50(d) of the Tex. Bus. & Comm. Code, and any other such damages to which Plaintiff
may show himself to be justly entitled by law and in equity.
Violations of Texas Insurance C ode
24, Plaintiff incorporates by reference all facts and circumstances in the foregoing
paragraphs.
25. Defendants’ actions constitute violations of the Texas Insurance Code,
including but not limited to, Article 21.21 Sections 4(10)(a) (ii), (iv), and (viii) (codified as
Section 541.060), Article 21.21 Section 11(e) (codified as Section 541,061), and Article
21.55 Section 3(f) (codified as Section 542.058) of the Texas Insurance Code. Defendants
engaged in the unfair or deceptive acts or practices that included, but were not limited to:
a. Failing to attempt, in good faith, to effectuate a prompt, fair, and equitable
settlement of a claim with respect to which the insurer’s liability has become
reasonably clear;
Failing to promptly provide the policyholder a reasonable explanation of the
basis in the policy, in relation to the facts or applicable law, for the insurer’s
denial of a claim or for the offer of a compromise settlement of a claim;
Refusing to pay a claim without conducting a reasonable investigation with
respect to the claim;
Compelling Plaintiff to file suit to recover amounts due under the policy by
refusing to pay benefits due;
Misrepresenting an insurance policy by failing to disclose any matter required
by law to be disclosed, including a failure to make disclosure in accordance
with another provision of this code; and
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f. Failing to pay a valid claim after receiving all reasonably requested and
required items from the claimant.
26. Plaintiff was the insured or beneficiary of a claim which was apparently valid
to him as a result of the unauthorized acts of Defendants, and relied upon these unfair or
deceptive acts or practices by the Defendants to his detriment. Accordingly, Defendants
became the insurers of Plaintiff.
27. As a direct and proximate result of Defendants’ acts and conduct, Plaintiff has
been damaged in an amount in excess of the minimum jurisdictional limits of this Court, for
which he now sues.
28. Since a violation of the Texas Insurance Code is a direct violation of the
DTPA, and because Defendants actions and conduct were committed knowingly and
intentionally, Plaintiff is entitled to recover, in addition to all damages described herein,
mental anguish damages and additional damages in an amount not to exceed three times the
amount of actual damages for Defendants having knowingly committed their conduct.
Additionally, Plaintiff is entitled to recover damages in an amount not to exceed three times
the amount of mental and actual damages for Defendants having intentionally committed
their conduct.
29. As a result of Defendants’ unfair and deceptive actions and conduct, Plaintiff
has been forced to retain the legal services of the undersigned attorneys to protect and pursue
these claims on his behalf. Accordingly, Plaintiff also seeks to recover his costs and
reasonable and necessary attorneys’ fees as permitted under Section 17.50(d) of the TEX.
Bus. & ComM. CoDE or Article 21.21 Section 16(b)(1) (codified as Section 541.152) of the
TEX. INS. CODE, and any other such damages to which Plaintiff may show himself to be
justly entitled by law and in equity.
Breach of The Common-Law Duty of Good Faith and Fair Dealing
30. Plaintiff incorporates by reference all facts and circumstances in the foregoing
paragraphs.
31. Plaintiff incorporates all the allegations of the preceding paragraphs for this
cause of action. By its acts, omissions, failures and conduct, Defendants have breached its
common law duty of good faith and fair dealing by denying Plaintiff's entire claim or
inadequately adjusting and making an offer on Plaintiffs claim without any reasonable basis
and by failing to conduct a reasonable investigation to determine whether there was a
reasonable basis for these denials.
32. Defendants have also breached this duty by unreasonably delaying payment of
Plaintiffs entire claim and by failing to settle Plaintiff's claims because these Defendants
knew or should have known that it was reasonably clear that the claim was covered. These
acts, omissions, failures, and conduct of Defendants are proximate cause of Plaintiff's
damages.
Breach of Fiduciary Duty
33. Plaintiff incorporates by reference all facts and circumstances in the foregoing
paragraphs.
34. Defendants had a fiduciary relationship, or in the alternative, a relationship of
trust and confidence. As a result, Defendants have a duty of good faith and fair dealing.
Defendants breached that fiduciary in that
a. The transaction was not fair and equitable to Plaintiff;
8
Defendants did not make reasonable use of the confidence that Plaintiff placed
in them;
Defendants did not act in the utmost good faith and did not exercise the most
scrupulous honesty toward Plaintiff;
Defendants did not place the interests of Plaintiff before their own, and they
used the advantage of their position to gain a benefit for themselves at the
expense of Plaintiff;
Defendants placed themselves in a position where their self-interest might
conflict with their obligations as a fiduciary; and
Defendants did not fully and fairly disclose all important information to
Plaintiff concerning the sale of the policy.
35. Defendants are liable to for Plaintiff's damages for breach of fiduciary duty,
which damages were caused by their conduct.
Unfair Insurance Practices
36. Plaintiff incorporates by reference all facts and circumstances in the foregoing
paragraphs.
37. Plaintiff has satisfied all conditions precedent to bringing these causes of
action. By their acts, omissions, failures, and conduct, Defendants have engaged in unfair
and deceptive acts or practices in the business of insurance in violation of Chapter 541 of the
Texas Insurance Code.
38. Such violations include, without limitation, all the conduct described in this
petition plus Defendants’ failure to properly investigate Plaintiff's claim. They also include
Defendants’ unreasonable delays in the investigation, adjustment, and resolution of
Plaintiff’s claim and their failure to pay for the proper repair of Plaintiff’s property on which
their liability had become reasonably clear.
39. They also include Defendants’ hiring of and reliance upon a biased engineer
to
obtain favorable, result-oriented reports to assist them in low-balling and denying Plaintiff’s
hurricane claim. They further include Defendants’ failure to look for coverage and give
Plaintiff the benefit of the doubt and Defendants’ misrepresentations of coverage under the
subject insurance policy. Specifically, Defendants are guilty of the following unfair
insurance practices:
a) Engaging in false, misleading, and deceptive acts or practices in the business
of insurance in this case;
b) Engaging in unfair claims settlement practices;
c) Misrepresenting to Plaintiff pertinent facts or policy provisions relating to the
coverage at issue;
q) Not attempting in good faith to effectuate a prompt, fair, and equitable
settlement of Plaintiff's claim on which Defendants’ liability has became
reasonably clear;
e) Failing to affirm or deny coverage of Plaintiff's claims within a reasonable
time and failing within a reasonable time to submit a reservation of rights
letter to Plaintiff;
f) Refusing to pay Plaintiff's claims without conducting a reasonable
investigation with respect to the claim; and
9) Failing to provide promptly to a policyholder a reasonable explanation of the
basis in the insurance policy, in relation to the facts or applicable law, for the
denial of a claim or for the offer of a compromise settlement.
40. Defendants have also breached the Texas Insurance Code when they breached
their duty of good faith and fair dealing. Defendants’ conduct as described herein has
resulted in Plaintiff’s damages that are described in this petition.
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Common-Law Fraud By Negligent Misrepresentation
41. Plaintiff incorporates by reference all facts and circumstances in the foregoing
paragraphs.
42. Plaintiff would show that Defendants, individually or collectively perpetrated
fraud by negligent misrepresentation by falsely representing a fact of materiality to Plaintiff
who relied upon such representations which ultimately resulted in injuries and damages to
him. Altematively, Defendants, individually or collectively, fraudulently concealed material
facts from Plaintiff, the result of which caused damages to Plaintiff which were foreseeable
as Hurricane Ike’s landfall in Texas was imminent.
43. Specifically, and as a proximate cause and result of this negligent
misrepresentation, all of which was perpetrated without the knowledge or consent of
Plaintiff, Plaintiff has sustained damages far in excess of the minimum jurisdictional limits of
this Court.
44, By reason of Plaintiff's reliance on Defendants’ individual and/or collective
negligent misrepresentations of material facts as described in this complaint, Plaintiff has
suffered actual damages for which he now sues.
45. Plaintiff further alleges that because Defendants’ individually and/or
collectively, knew that the misrepresentations made to the Plaintiff were false at the time
they were made, such misrepresentations are fraudulent, negligent or grossly negligent on the
part of Defendants’, individually and/or collectively, and constitute conduct for which the
law allows the imposition of exemplary damages.
46. In this regard, Plaintiff will show that he has incurred significant litigation
expenses, including attomeys’ fees, in the investigation and prosecution of this action.
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47. Accordingly, Plaintiff requests that exemplary damages be awarded against the
Defendants, individually and/or collectively, in a sum in excess of the minimum
jurisdictional limits of this Court. Defendants are liable for these damages, plus additional
damages, plus 10% penalty, plus attomey’s fees.
Waiver and Estoppel
48. Plaintiff incorporates by reference all facts and circumstances set forth under
the foregoing paragraphs. Defendants have waived and are estopped from asserting any
defenses, conditions, exclusions, or exceptions to coverage not contained in any reservation
of rights or denial letters to Plaintiff.
Damag
49. Defendants’ acts have been producing and proximate causes of damages to
Plaintiff far in excess of the minimum jurisdictional limits of this court.
Additional Damages & Penalties
50. Defendants’ conduct was committed knowingly and intentionally.
Accordingly, Defendants are liable for additional damages under DTPA section 17.50(b)(1),
and Tex. Ins. Code Ann. Article 21.21, section 16. Plaintiff is entitled to the 18% damages
allowed by Tex. Inc. Code. Ann. Article 21.55.
Attorneys’ Fees
51. Plaintiff is entitled to reasonable and necessary attomey’s fees pursuant to
Tex. Civ. Prac. & Rem. Code. Ann. Section 38.001(8); Tex. Inc. Code Ann article 21.21, §
16; and Tex. Ins. Code Ann. Article 21.55, § 6; and DTPA § 17.50(d).
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Jury Demand
52. Plaintiff requests that this case be decided by a jury as allowed by Tex. R. Civ.
P. 216. The appropriate jury fee has been paid by Plaintiff.
Praye!
Plaintiff prays that he has judgment against Defendants for his actual damages,
consequential damages, prejudgment interest, additional statutory damages, post judgment
interest, reasonable and necessary attorney's fees, costs, and such other relief to which
Plaintiff may show himself justly entitled.
Dated: June 16, 2009.
Respectfully submitted,
ARNOLD & ITKIN LLP
/¥ Kut B. Amdd
—--- =
Kurt B. Amold
State Bar No. 24036150
Paul Skrabanek
State Bar No. 24063005
5 Houston Center
1401 McKinney Street, Ste. 2550
Houston, TX 77010
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
ATTORNEYS FOR PLAINTIFF
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Preview
Filed 09J une 16 P1:38 2009-37861 / Court: 157 Loren J ackson - District Clerk Harris Coun! ED101) 015434508 By: Sharon Carlton Cause No. —----- + JOSE BARRAGAN, IN THE DISTRICT COURT OF Plaintiff, Vv HARRIS COUNTY, TEXAS TEXAS FAIR PLAN ASSOCIATION, BRUSH COUNTRY CLAIMS, and BRIAN BRIGGS, Defendants. —----- JUDICIAL DISTRICT Plaintiff's Original Petitio: Plaintiff Jose Barragan complains of Texas FAIR Plan Association, Brush Country Claims, and Brian Briggs and would respectfully show the Court the following: Discovery Level 1 Plaintiff intends for discovery to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil Procedure. [urisdiction and Venu 2 The Court has jurisdiction to hear these claims under Texas common law and Texas statutory law. Venue is proper because all or a substantial part of the events giving rise to this suit occurred in Harris County, Texas. Parties 3 Plaintiff is a resident of Harris County, Texas. 4. Defendant Texas FAIR Plan Association is a Texas entity and may be served at its principal place of business, 5700 S. MoPac Expressway, Building E, Suite 530, Austin, Texas 78749. 5 Defendant Brush Country Claims, Ltd. is a Texas entity and may be served at its home office at 101 N. Cameron Street, Alice, Texas 78332. 6 Defendant Brian Briggs is an individual employed by Brush Country Claims, Ltd. and may be served personally at his residence, 819 Loma Dr., Ojai, CA 93023-3539. Nature Of The Case 7 Plaintiff suffered catastrophic damage to his property as a result of Hurricane Ike. In the aftermath, Plaintiff relied on his insurer and his insurer’s agents to help start the rebuilding process. Specifically, Plaintiff was insured from loss by Texas FAIR Plan Association (“TFPA”). As part of the process, TFPA hired Brush Country Claims and Brian Briggs to adjust Plaintiff's property. The above Defendants conspired to and improperly adjusted Plaintiff's property so that he would not receive the coverage he had originally contracted with TFPA to receive. Thus, this suit is necessary to recover damages arising from Defendants’ unfair refusal to pay insurance benefits as represented by its agent and by the homeowner s policy it sold to the Plaintiff. The Plaintiff seeks relief under the common law, the Deceptive Trade Practices-Consumer Protection Act, and the Texas Insurance Code. Conditions Precedent 8 All conditions precedent to recovery have been met or have occurred. Presuit notice was sent to Defendants more than sixty days before suit was filed. Agency 9 All acts by Defendants were done by their officers, agents, servants, employees, or representatives and were done with the full authorization or ratification of Defendants or were done in the normal and routine course and scope of employment of Defendants. Breach of Contract 10. Plaintiff incorporates by reference all facts and circumstances set forth under the foregoing paragraphs. 11. According to the insurance policies that Plaintiff purchased, Defendants have the duty to investigate and pay Plaintiff's policy benefits for claims made for damages caused by hurricane and water damage in the building from such damage. 12. Asa result of this damage, which is covered under Plaintiff’s insurance policy with Defendants, Plaintiff's property has suffered extensive damage. Defendants have breached their contractual obligation and the subject insurance policies by failing to pay the Plaintiff policy benefits for the cost to properly repair the damage to Plaintiffs property. As a result of this breach of contract, Plaintiff has suffered the damages that are described in this petition. Violations of Texas Deceptive Trade Practices Act and Tie-In-Statutes 13. Plaintiff incorporates by reference all facts and circumstances set forth under the foregoing paragraphs. 14, Defendants’ collective actions constitute violations of the DTPA, including but not limited to, Sections 17.46(b)(12), (14), (20), (24), and Section 17.50(a)(4) of the TEX. Bus. & COMM. CoDE. Defendants collectively engaged in false, misleading, or deceptive acts or practices that included, but were not limited to: a. Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; Misrepresenting the authority of a salesman, representative, or agent to negotiate the final terms of a consumer transaction; Failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; Using or employing an act or practice in violation of the Texas Insurance Code; Unreasonably delaying the investigation, adjustment and resolution of Plaintiffs’ claim; Their failure to properly investigate Plaintiff’s claims; and Hiring of and reliance upon a biased engineer/adjuster to obtain a favorable, result-oriented report to assist Defendants in low-balling and denying Plaintiff’s storm damage claim. 15. As described in this petition, Defendants represented to Plaintiff that his insurance policies and Defendants’ adjusting and investigative services had characteristics or benefits that it did not have, which gives Plaintiff the right to recover under Section 17.46 (b)(5) of the DTPA; 16. As described in this petition, Defendants represented to Plaintiff that his insurance policies and Defendants’ adjusting and investigative services were of a particular standard, quality, or grade when they were of another in violation of Section 17.46 (b)(7) of the DTPA; 17. By representing that Defendants would pay to repair the damages caused by wind storm/hail and then not doing so, Defendants have violated Sections 17.46 (b)(5), (7) and (12) of the DTPA; 18. Defendants have breached an express warranty that the damage caused by wind storm/hail would be covered under the subject insurance policies. This breach entitles Plaintiffto recover under Sections 17.46 (b) (12) and (20) and 17.50 (a) (2) of the DTPA; 19. Defendants’ actions, as described in this petition, are unconscionable in that it took advantage of Plaintiff’s lack of knowledge, ability, and experience to a grossly unfair degree. Defendants’ unconscionable conduct gives Plaintiff the right to relief under Section 17.50(a)(3) of the DTPA; and 20. Defendants’ conduct, acts, omissions, and failures, as described in this petition, are unfair practices in the business of insurance in violation of Section 17.50 (a)(4) of the DTPA. 21. Plaintiff was a consumer and relied upon these false, misleading, or deceptive acts or practices by Defendants to his detriment. As a direct and proximate result of Defendants’ collective acts and conduct, Plaintiff has been damaged in an amount in excess of the minimum jurisdictional limits of this Court, for which Plaintiff now sues. All of the above-described acts, omissions, and failures of Defendants are a producing cause of Plaintiff’ s damages that are described in this petition. 22. Because Defendants’ collective actions and conduct were committed knowingly and intentionally, Plaintiff is entitled to recover, in addition to all damages described herein, mental anguish damages and additional damages in an amount not to exceed three times the amount of actual damages for Defendants having knowingly committed their conduct. Additionally, Plaintiff is entitled to recover damages in an amount not to exceed three times the amount of mental and actual damages for Defendants having intentionally committed collectively their conduct. 5 23. As a result of Defendants’ unconscionable, misleading, and deceptive actions and conduct, Plaintiff has been forced to retain the legal services of the undersigned attorneys to protect and pursue these claims on their behalf. Accordingly, Plaintiff also seeks to recover his costs and reasonable and necessary attorneys’ fees as permitted under Section 17.50(d) of the Tex. Bus. & Comm. Code, and any other such damages to which Plaintiff may show himself to be justly entitled by law and in equity. Violations of Texas Insurance C ode 24, Plaintiff incorporates by reference all facts and circumstances in the foregoing paragraphs. 25. Defendants’ actions constitute violations of the Texas Insurance Code, including but not limited to, Article 21.21 Sections 4(10)(a) (ii), (iv), and (viii) (codified as Section 541.060), Article 21.21 Section 11(e) (codified as Section 541,061), and Article 21.55 Section 3(f) (codified as Section 542.058) of the Texas Insurance Code. Defendants engaged in the unfair or deceptive acts or practices that included, but were not limited to: a. Failing to attempt, in good faith, to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer’s liability has become reasonably clear; Failing to promptly provide the policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer’s denial of a claim or for the offer of a compromise settlement of a claim; Refusing to pay a claim without conducting a reasonable investigation with respect to the claim; Compelling Plaintiff to file suit to recover amounts due under the policy by refusing to pay benefits due; Misrepresenting an insurance policy by failing to disclose any matter required by law to be disclosed, including a failure to make disclosure in accordance with another provision of this code; and 6 f. Failing to pay a valid claim after receiving all reasonably requested and required items from the claimant. 26. Plaintiff was the insured or beneficiary of a claim which was apparently valid to him as a result of the unauthorized acts of Defendants, and relied upon these unfair or deceptive acts or practices by the Defendants to his detriment. Accordingly, Defendants became the insurers of Plaintiff. 27. As a direct and proximate result of Defendants’ acts and conduct, Plaintiff has been damaged in an amount in excess of the minimum jurisdictional limits of this Court, for which he now sues. 28. Since a violation of the Texas Insurance Code is a direct violation of the DTPA, and because Defendants actions and conduct were committed knowingly and intentionally, Plaintiff is entitled to recover, in addition to all damages described herein, mental anguish damages and additional damages in an amount not to exceed three times the amount of actual damages for Defendants having knowingly committed their conduct. Additionally, Plaintiff is entitled to recover damages in an amount not to exceed three times the amount of mental and actual damages for Defendants having intentionally committed their conduct. 29. As a result of Defendants’ unfair and deceptive actions and conduct, Plaintiff has been forced to retain the legal services of the undersigned attorneys to protect and pursue these claims on his behalf. Accordingly, Plaintiff also seeks to recover his costs and reasonable and necessary attorneys’ fees as permitted under Section 17.50(d) of the TEX. Bus. & ComM. CoDE or Article 21.21 Section 16(b)(1) (codified as Section 541.152) of the TEX. INS. CODE, and any other such damages to which Plaintiff may show himself to be justly entitled by law and in equity. Breach of The Common-Law Duty of Good Faith and Fair Dealing 30. Plaintiff incorporates by reference all facts and circumstances in the foregoing paragraphs. 31. Plaintiff incorporates all the allegations of the preceding paragraphs for this cause of action. By its acts, omissions, failures and conduct, Defendants have breached its common law duty of good faith and fair dealing by denying Plaintiff's entire claim or inadequately adjusting and making an offer on Plaintiffs claim without any reasonable basis and by failing to conduct a reasonable investigation to determine whether there was a reasonable basis for these denials. 32. Defendants have also breached this duty by unreasonably delaying payment of Plaintiffs entire claim and by failing to settle Plaintiff's claims because these Defendants knew or should have known that it was reasonably clear that the claim was covered. These acts, omissions, failures, and conduct of Defendants are proximate cause of Plaintiff's damages. Breach of Fiduciary Duty 33. Plaintiff incorporates by reference all facts and circumstances in the foregoing paragraphs. 34. Defendants had a fiduciary relationship, or in the alternative, a relationship of trust and confidence. As a result, Defendants have a duty of good faith and fair dealing. Defendants breached that fiduciary in that a. The transaction was not fair and equitable to Plaintiff; 8 Defendants did not make reasonable use of the confidence that Plaintiff placed in them; Defendants did not act in the utmost good faith and did not exercise the most scrupulous honesty toward Plaintiff; Defendants did not place the interests of Plaintiff before their own, and they used the advantage of their position to gain a benefit for themselves at the expense of Plaintiff; Defendants placed themselves in a position where their self-interest might conflict with their obligations as a fiduciary; and Defendants did not fully and fairly disclose all important information to Plaintiff concerning the sale of the policy. 35. Defendants are liable to for Plaintiff's damages for breach of fiduciary duty, which damages were caused by their conduct. Unfair Insurance Practices 36. Plaintiff incorporates by reference all facts and circumstances in the foregoing paragraphs. 37. Plaintiff has satisfied all conditions precedent to bringing these causes of action. By their acts, omissions, failures, and conduct, Defendants have engaged in unfair and deceptive acts or practices in the business of insurance in violation of Chapter 541 of the Texas Insurance Code. 38. Such violations include, without limitation, all the conduct described in this petition plus Defendants’ failure to properly investigate Plaintiff's claim. They also include Defendants’ unreasonable delays in the investigation, adjustment, and resolution of Plaintiff’s claim and their failure to pay for the proper repair of Plaintiff’s property on which their liability had become reasonably clear. 39. They also include Defendants’ hiring of and reliance upon a biased engineer to obtain favorable, result-oriented reports to assist them in low-balling and denying Plaintiff’s hurricane claim. They further include Defendants’ failure to look for coverage and give Plaintiff the benefit of the doubt and Defendants’ misrepresentations of coverage under the subject insurance policy. Specifically, Defendants are guilty of the following unfair insurance practices: a) Engaging in false, misleading, and deceptive acts or practices in the business of insurance in this case; b) Engaging in unfair claims settlement practices; c) Misrepresenting to Plaintiff pertinent facts or policy provisions relating to the coverage at issue; q) Not attempting in good faith to effectuate a prompt, fair, and equitable settlement of Plaintiff's claim on which Defendants’ liability has became reasonably clear; e) Failing to affirm or deny coverage of Plaintiff's claims within a reasonable time and failing within a reasonable time to submit a reservation of rights letter to Plaintiff; f) Refusing to pay Plaintiff's claims without conducting a reasonable investigation with respect to the claim; and 9) Failing to provide promptly to a policyholder a reasonable explanation of the basis in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement. 40. Defendants have also breached the Texas Insurance Code when they breached their duty of good faith and fair dealing. Defendants’ conduct as described herein has resulted in Plaintiff’s damages that are described in this petition. 10 Common-Law Fraud By Negligent Misrepresentation 41. Plaintiff incorporates by reference all facts and circumstances in the foregoing paragraphs. 42. Plaintiff would show that Defendants, individually or collectively perpetrated fraud by negligent misrepresentation by falsely representing a fact of materiality to Plaintiff who relied upon such representations which ultimately resulted in injuries and damages to him. Altematively, Defendants, individually or collectively, fraudulently concealed material facts from Plaintiff, the result of which caused damages to Plaintiff which were foreseeable as Hurricane Ike’s landfall in Texas was imminent. 43. Specifically, and as a proximate cause and result of this negligent misrepresentation, all of which was perpetrated without the knowledge or consent of Plaintiff, Plaintiff has sustained damages far in excess of the minimum jurisdictional limits of this Court. 44, By reason of Plaintiff's reliance on Defendants’ individual and/or collective negligent misrepresentations of material facts as described in this complaint, Plaintiff has suffered actual damages for which he now sues. 45. Plaintiff further alleges that because Defendants’ individually and/or collectively, knew that the misrepresentations made to the Plaintiff were false at the time they were made, such misrepresentations are fraudulent, negligent or grossly negligent on the part of Defendants’, individually and/or collectively, and constitute conduct for which the law allows the imposition of exemplary damages. 46. In this regard, Plaintiff will show that he has incurred significant litigation expenses, including attomeys’ fees, in the investigation and prosecution of this action. 11 47. Accordingly, Plaintiff requests that exemplary damages be awarded against the Defendants, individually and/or collectively, in a sum in excess of the minimum jurisdictional limits of this Court. Defendants are liable for these damages, plus additional damages, plus 10% penalty, plus attomey’s fees. Waiver and Estoppel 48. Plaintiff incorporates by reference all facts and circumstances set forth under the foregoing paragraphs. Defendants have waived and are estopped from asserting any defenses, conditions, exclusions, or exceptions to coverage not contained in any reservation of rights or denial letters to Plaintiff. Damag 49. Defendants’ acts have been producing and proximate causes of damages to Plaintiff far in excess of the minimum jurisdictional limits of this court. Additional Damages & Penalties 50. Defendants’ conduct was committed knowingly and intentionally. Accordingly, Defendants are liable for additional damages under DTPA section 17.50(b)(1), and Tex. Ins. Code Ann. Article 21.21, section 16. Plaintiff is entitled to the 18% damages allowed by Tex. Inc. Code. Ann. Article 21.55. Attorneys’ Fees 51. Plaintiff is entitled to reasonable and necessary attomey’s fees pursuant to Tex. Civ. Prac. & Rem. Code. Ann. Section 38.001(8); Tex. Inc. Code Ann article 21.21, § 16; and Tex. Ins. Code Ann. Article 21.55, § 6; and DTPA § 17.50(d). 12 Jury Demand 52. Plaintiff requests that this case be decided by a jury as allowed by Tex. R. Civ. P. 216. The appropriate jury fee has been paid by Plaintiff. Praye! Plaintiff prays that he has judgment against Defendants for his actual damages, consequential damages, prejudgment interest, additional statutory damages, post judgment interest, reasonable and necessary attorney's fees, costs, and such other relief to which Plaintiff may show himself justly entitled. Dated: June 16, 2009. Respectfully submitted, ARNOLD & ITKIN LLP /¥ Kut B. Amdd —--- = Kurt B. Amold State Bar No. 24036150 Paul Skrabanek State Bar No. 24063005 5 Houston Center 1401 McKinney Street, Ste. 2550 Houston, TX 77010 Telephone: (713) 222-3800 Facsimile: (713) 222-3850 ATTORNEYS FOR PLAINTIFF 13