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  • VILLEGAS VS ARELLANO MOTOR VEHICLE ACCIDENT (GEN LIT ) document preview
  • VILLEGAS VS ARELLANO MOTOR VEHICLE ACCIDENT (GEN LIT ) document preview
  • VILLEGAS VS ARELLANO MOTOR VEHICLE ACCIDENT (GEN LIT ) document preview
  • VILLEGAS VS ARELLANO MOTOR VEHICLE ACCIDENT (GEN LIT ) document preview
						
                                

Preview

CAUSE NO. D-1 -005236 MAGDALENO VILLEGAS, § IN THE DISTRICT COURT Plaintiff § v. § § JORGE ARELLANO, MARIA D. § MARTINEZ, OLD AMERICAN § TRAVIS COUNTY, TEXAS COUNTY MUTUAL FIRE § INSURANCE COMPANY, and § EMPOWER MANAGING GENERAL § AGENCY, INC, Individually and d/b/a § Empower Insurance Group, § Defendants § 353RD JUDICIAL DISTRICT PLAINTIFF’S MOTION TO ABATE & RESPONSE TO DEFENDANT’S PLEA TO THE JURISDICTION COMES NOW, MAGDALENO VILLEGAS, Plaintiff, and, in the event of an appeal of the severed judgment from this cause, now pending as Cause No. D-1- -20-001352, moves the Court to abate this case and would show the Court the following: Plaintiff has obtained a final judgment against JORGE ARELLANO. Plaintiff claims and judgment against ARELLANO have been severed from this cause of action and are now pending as Cause No. D-1- -20-001352 in the Travis District Courts. The only claims still pending in the present case are against OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY, and EMPOWER MANAGING GENERAL AGENCY, INC., Individually and d/b/a Empower Insurance Group, herein collectively referred to as “OACM”. These claims from OACM’s moto vehicle liabilit insurance coverage extended to JORGE ARELLANO for the moto collision the judgment against ARELLA stems. OACM claims that because ARELLANO wa driving whil intoxicated with two prior convictions for the same offense at the time of the collision, the collision and the judgment emming therefrom are not covered by the insurance policy. Plaintiff argues, and the trial court has previously agreed, tha interpreting r vehicle liability insurance coverage in Plaintiff’s Motion to Abate & sponse to Defendant s Plea to e Jurisdic Page 1 of 4 this manner violates the Texas Motor Vehicle Safety Responsibility Act and forces law enforcement officers to act as coverage attorneys at every traffic stop and crash investigation. 4. Plaintiff has filed an Application for Turnover Relief in Cause No. D-1-GN-20-001352 which has been set for hearing at the same date and time as Defendant OACM’s Plea to the Jurisdiction. The Application seeks to have ARELLANO’s coverage claims assigned to Plaintiff. ARELLANO’s causes of action against OACM for its failure to tender his defense and to accept a valid Stowers demand is a property right and is commonly the subject of turnover relief under Texas Civil Practice & Remedies Code § 31.002. See e.g. Charles v. Tamez, 878 S.W.2d 201, 205 (Tex. App.—Corpus Christi 1994); and Associated Ready Mix, Inc. Douglas, 843 S.W.2d 758, 762 (Tex.Appl.—Waco 1992). 5. OACM argues that Plaintiff has no standing to pursue these claims. Until the Application is granted, this is true. These claims presently belong to Arellano until turned over. However, only Plaintiff has incentive to pursue these claims, unless ARELLANO has non-exempt assets sufficient to cover the judgment. Plaintiff is aware of no such assets. The Judgment is for $254,838.44 plus post-judgment interest of roughly $63,709.60, as of this filing. 6. ARELLANO’s claims against OACM likely began to accrue for purposes of calculating the statute of limitations on January 5, 2015, the date on which OACM rejected ARELLANO’s request for a defense in this case. As a result, the statute of limitations for the claims against OACM may now have passed. Fortunately, OACM was timely sued and served years before the limitations passed, based upon the Plaintiff’s original Application filed on October 8, 2015. 7. However, it has been determined by the First Court of Appeals that the granting of the first Application was void due to the fact the judgment against ARELLANO was interlocutory at the time it was granted. This error has since been remedied. The judgment was severed on March 9, 2020 and is now final and appealable. Plaintiff’s Motion to Abate & Response to Defendant’s Plea to the Jurisdiction Page 2 of 4 8. David Plaut, counsel retained by OACM to finally represent ARELLANO after all these years, has already filed a Motion for New Trial which was denied on January 7, 2020. Mr. Plaut indicates that he intends to appeal the judgment against ARELLANO and he, of course, opposes Plaintiff’s Application for Turnover Relief re-assigning the case against OACM to Plaintiff. 9. Because Plaintiff cannot proceed on the claims against OACM until Application is granted, Plaintiff asks the Court to abate the claims against OACM until such a time as the Application is granted and ARELLANO’s appellate remedies in staying collection on the judgment are exhausted or expired. Failure to grant the abatement would cause OACM to be able to obtain a dismissal of the claims now pending against them and later claim a statute of limitations defense once ARELLANO’s appellate remedies are finally exhausted. The result would be that OACM is free to deny coverage for any reason it chooses and would never face an adjudication of the correct interpretation of their insurance policy. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that this Court abate the remaining causes of action in Cause No. D-1-GN-14-005236 until such a time as Plaintiff’s Application for Turnover Relief is granted and ARELLANO’s appellate remedies in staying collection on the judgment in Cause No. D-1-GN-20-001352 are exhausted or expired Respectfully submitted, GIBBS & CRIVELLI, PLLC BY: /s/Drew Gibbs_________________ Drew Gibbs SBN: 24045938 drew@slingshotlaw.com Scott Crivelli SBN: 24081713 scott@slingshotlaw.com 3307 Northland Drive, Suite 320 Austin, Texas 78731 (800) 488-7840 (888) 698-7840 (fax) Plaintiff’s Motion to Abate & Response to Defendant’s Plea to the Jurisdiction Page 3 of 4 /s/ Matthew J. Kita______ Matthew J. Kita Texas Bar No. 24050883 P.O. Box 5119 Dallas, Texas 75208 (214) 699-1863 (phone) (214) 347-7221 (facsimile) matt@mattkita.com ATTORNEYS FOR MAGDALENO VILLEGAS CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above instrument has been forwarded to the following counsel of record by eService pursuant to Rule 21 and 21(a) of the Texas Rules of Civil Procedure on this 13th day of March, 2020. VIA E-SERVICE: anthony@icenoglefirm.com ICENOGLE & BOGGINS, P.L.L.C. Attn: Anthony Icenogle 6805 Capital of Texas Highway, Suite 220 Austin, Texas 78731 Attorney for Defendants OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY and EMPOWER MANAGING GENERAL AGENCY, INC _/s/Drew Gibbs____________________ Drew Gibbs Plaintiff’s Motion to Abate & Response to Defendant’s Plea to the Jurisdiction Page 4 of 4