Preview
FILED
3/6/2020 1:28PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
DEPUTY
Darling Tellez
CAUSE NO. DC-20-01687
ALEJANDRO MORENO, IN THE DISTRICT COURT
Individually and as Next Friend 0f
JOSE EFREN MORENO,
Plaintifi:
VS. WWWWWWWWWWWWWWWWW
95TH JUDICIAL DISTRICT
COCA-COLA SOUTHWEST
BEVERAGES, LLC,
TEXAs-COLA LEASING
COMPANY LP, LLLP; and
MICHAEL SCOTT BYRUM
Defendants. DALLAS COUNTY, TEXAS
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S
SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S
ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Coca—Cola Southwest Beverages LLC (“CCSWB”), one of the
Defendants in the above titled and numbered cause, and makes and files this its Special
Exception and Original Answer to Plaintiff’s Original Petition, and for such would respectfully
show unto the Court as follows:
SPECIAL EXCEPTION
I.
CCSWB specially excepts t0 Plaintiff’s failure to properly plead the full nature and
maximum amount of damages sought as required by Texas Rules of Civil Procedure 47 and 56
and respectfillly requests that the Court order Plaintiff Alejandro Moreno, Individually and as
Next Friend 0f Jose Efren Moreno (“Plaintiff”) to replead pursuant t0 Texas Rules 0f Civil
Procedure 68 and 79.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 1
GENERAL DENIAL
II.
CCSWB denies generally each and every material allegation contained in Plaintiff’s
Original Petition, demands strict proof thereof, and t0 the extent such matters are questions of
fact, says Plaintiff should prove such facts by a preponderance 0f the evidence if he can do so.
AFFIRMATIVE DEFENSES
III.
PLEADING FURTHER, ALTERNATIVELY AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that, at the time and 0n the occasion in question, Alejandro
Efren Moreno failed to use that degree 0f care and caution that would have been used by a
person with ordinary prudence under the same 0r similar circumstances, and that such failure
was the sole proximate cause or the sole producing cause, or alternatively, a proximate cause or a
producing cause, 0f the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged
injuries and their alleged resulting damages. CCSWB, therefore, invokes the comparative
responsibility provisions 0f the Texas Civil Practice and Remedies Code § 33.001, et seq.
IV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that the accident in question, Plaintiff’s and Alejandro Efren
Moreno’s alleged injuries and their alleged resulting damages were the result of negligent acts
and/or omissions of others beyond CCSWB’S control, whose acts or omissions were the sole
proximate cause or the sole producing cause, 0r alternatively, a proximate cause 0r a producing
cause, of the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and
their alleged resulting damages.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 2
V.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show in the unlikely event that any liability be found on its part, that
such liability be reduced by the percentage 0f causation found to have resulted from the
negligence of Alej andro Efren Moreno and/or any other individuals and/or entities.
VI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB states that in the unlikely event that an adverse judgment is rendered
against it, CCSWB respectfully prays for contribution, indemnity and/or all available credits
and/or offsets as provided by the Texas Civil Practice and Remedies Code and under Texas 0r
any other applicable law.
VII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that the accident in question, Plaintiff’s and Alejandro Efren
Moreno’s alleged injuries and any alleged resulting damages were the result, in whole or in part,
0f a new and independent cause 0r causes not foreseeable by CCSWB, or of intervening acts of
others, Which were the sole proximate cause, 0r in the alternative, a proximate cause, and
therefore, such new and independent acts or causes became the immediate and efficient cause or
causes, such that any and all alleged negligent acts or omissions of CCSWB were not the cause
0f the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and any
alleged resulting damages.
VIII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB states that the imposition of joint and several liability violates the equal
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 3
protection and due process clauses 0f the U.S. and Texas Constitutions.
IX.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that Plaintiff’s claims are barred by the doctrines of estoppel,
ratification and/or laches.
X.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB asserts the limitation of damages recoverable as provided by applicable
portions 0f the Texas Business & Commerce Code; the Texas Civil Practice and Remedies Code
(including but not limited t0 Chapters 32, 33 and 38); and any other applicable statute 0r rule 0f
law, and any other applicable affirmative defenses.
XI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF
AFFIRMATIVE DEFENSE, CCSWB asserts that it complied with all Federal Motor Carrier
Safety Regulations and all other applicable federal requirements. Accordingly, CCSWB pleads
that Plaintiff’ s claims may be barred in Whole 0r in part by the doctrine of federal preemption.
XII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB invokes Section 41.0105 0f the Texas Civil Practice and Remedies Code
and requests that, to the extent Plaintiff seeks recovery of medical 0r healthcare expenses, the
evidence to prove such loss be limited t0 the amount actually paid by or 0n behalf of Plaintiff as
opposed to the amount charged.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 4
XIII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that, pursuant to Section 18.091 of the Texas Civil Practice
and Remedies Code, t0 the extent Plaintiff is seeking recovery for loss of earnings, lost wages,
loss 0f earning capacity, and/or loss of contributions of a pecuniary value, Plaintiff must present
evidence 0f the alleged loss in the form 0f a net loss after reduction for income tax payments or
unpaid tax liability pursuant to any federal income tax law.
XIV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB pleads that Plaintiff and/or Alejandro Efren Moreno failed t0 mitigate his
damages herein as required under applicable law and therefore any such claims 0r causes 0f
action are barred to that extent.
XV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that Plaintiff s and Alejandro Efren Moreno’s alleged injuries
and alleged resulting damages are the result, in whole or in part, of pre-existing and/or
subsequent conditions.
XVI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that some or all of the medical treatment claimed by Plaintiff
was excessive, unreasonable, and unnecessary and was not proximately caused by any act and/or
omissions 0f CCSWB.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 5
XVII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that some or all of Plaintiff’s claims are barred because
Plaintiff has failed to fully perform all conditions and/or conditions precedent required t0 be
performed on Plaintiff” s part and those conditions have not occurred and have not been waived.
XVIII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB pleads the defense of unconstitutionality, in that any award of punitive 0r
exemplary damages would constitute the imposition 0f a criminal penalty without the safeguards
guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments 0f the Constitution 0f the
United States, and similar provisions 0f the Texas Constitution. Furthermore, the imposition of
such punitive or exemplary damages constitutes an excessive fine under the Eighth Amendment,
denies CCSWB equal protection of the law under the Fourteenth Amendment, and violates the
due process clause 0f the Fifth and Fourteenth Amendments. CCSWB pleads that any claim by
Plaintiff for punitive or exemplary damages should be stricken as unconstitutional and that any
award of punitive or exemplary damages should be set aside for the reasons stated above.
XIX.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that the imposition of punitive damages sought by Plaintiff
violates CCSWB’S rights to due process and equal protection under the Fourteenth Amendment
of the United States Constitution, t0 due course of law and equal protection under Article 1 and
19 of the Texas Constitution, and the prohibition against excessive fines in Article 1, section 13
0f the Texas Constitution, in that:
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 6
(a) Texas law and the Texas punitive damage scheme, both facially and as applied in
this case, provide n0 constitutionally adequate or meaningful standards t0 guide a jury 0r the
court in determining whether, and if so in what amount, to award punitive damages; there is no
sufficiently clear definition of the conduct 0r mental state that makes punitive damages
permissible, and n0 sufficiently clear standard for determining the appropriate size of an award.
Texas law and the Texas punitive damage scheme leave the determination Whether t0 award and,
if so, the amount of punitive damages to the arbitrary discretion 0f the trier of fact without
providing adequate 0r meaningful guidelines for 0r limits t0 the exercise of that discretion.
(b) CCSWB had n0 notice 0f or means 0f ascertaining whether, or if so in What
amount, he might be subject to a penalty for the conduct alleged by Plaintiff in this case. That
lack 0f notice was compounded by the absence of any adequate 0r meaningfiJI standards as t0 the
kind 0f conduct that might subject CCSWB t0 punitive damages or as t0 the potential amount 0f
such an award.
(c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed
on the limits on punitive damages imposed by the purposes for Which such damages are assessed.
(d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly
prohibited from awarding punitive damages, in whole or in part, 0n the basis 0f invidiously
discriminatory characteristics, including the corporate status 0f a defendant.
(e) N0 provision of Texas law 0r the Texas punitive damage scheme provides
adequate procedural safeguards consistent With the criteria set forth in BMW ofNorth America,
Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v.Haslip, 499 U.S. 1
(1990), and Matthews v. Eldridge, 424 U.S. 3 19 (1976) for the imposition of a punitive award.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 7
(f) Texas law and the Texas punitive damage scheme do not provide for adequate
post-trial review 0f punitive damage awards or the amount thereof, and d0 not provide objective
standards for such review.
(g) Texas law and the Texas punitive damage scheme do not provide for adequate
appellate review 0f punitive damage awards or the amount thereof, and d0 not provide obj ective
standards for such review. Those inadequacies are compounded by the constraints upon review
0f such awards by the Texas Supreme Court, including Article 5, section 6 0f the Texas
Constitution and section 22.225 0f the Texas Government Code.
(h) In the admission of evidence, the standards provided the trier of fact (including
jury instructions), and post-trial and appellate review, Texas law and the Texas punitive damage
scheme, including sections 41 .001 through 41.013 of the Texas Civil Practice & Remedies Code,
place undue emphasis 0n a defendant’s wealth as a basis for making and enhancing a punitive
damage award, and do not require that the award not be based on any desire to redistribute
wealth.
(i) Under Texas law and the Texas punitive damage scheme, there is no limit on the
number of times CCSWB could be held accountable for punitive damages based on the same
alleged conduct as that alleged in this case.
XX.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that the net effect of Texas’s punitive damage system is t0
impose punitive damages in an arbitrary and discriminatory manner. The lack 0f adequate
guidelines or review and undue emphasis on defendant’s wealth inevitably lead to variations in
result Without any rational basis for differentiation, and Without serving any legitimate
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 8
governmental purpose or interest. As a result, the federal and state (U.S. Const. Amend 14;
Texas Const. Art. 1, § 3) constitutional mandates for equal protection are violated. Insofar as the
lodestone of the Texas punitive damage system is in the depth 0f the defendant’s pockets, that
invidious discrimination is itself an affront to the federal and state constitutions’ equal protection
mandates.
XXI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, CCSWB would show that insofar as the punitive damage award sought by Plaintiff
seeks to impose punitive damages under Texas law for conduct in other states, the award
violates:
(a) CCSWB’s rights t0 due process and due course of law under the Fourteenth
Amendment of the United States Constitution and Article 1, section 19 0f the Texas
Constitution;
(b) the dormant or negative commerce clause derived from Article 1,section 8, clause
3 of the United States Constitution;
(c) the Full Faith and Credit Clause of Article IV, section 1 0f the United States
Constitution;
(d) the requirement of the United States Constitution that a state respect the autonomy
0f other states within their spheres; and
(e) the prohibition against excessive fines in Article 1, section 13 of the Texas
Constitution.
XXII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 9
DEFENSE, CCSWB would show that by Virtue of Section 41.008 of the Texas Civil Practice
and Remedies Code, any award of exemplary damages is subject t0 the cap specified in that
section and any award in excess of that cap must be reduced accordingly.
XXIII.
CCSWB gives notice that it intends t0 rely upon such other defenses or denials as may
become available or appear during discovery as it proceeds in this matter, and hereby reserves
the right to amend itsAnswer to assert such defenses.
XXIV.
CCSWB respectfully requests that a court reporter attend all sessions 0f court in
connection with this case, and that said court reporter take full notes of all testimony offered,
together With any objections, rulings and remarks of the Court and exceptions thereto, and such
other proceedings as may be needed or requested by CCSWB. See Christie v. Price, 558 S.W.2d
922 (Tex. App. — Texarkana 1977, no writ).
TEX. R. CIV. P. 193.7 NOTICE
XXV.
Pursuant t0 Texas Rule 0f Civil Procedure 193.7, CCSWB provides notice that any
document produced by Plaintiff may be used in court proceedings by CCSWB.
PRAYER
XXVI.
WHEREFORE, PREMISES CONSIDERED, Defendant CCSWB respectfully prays that
Plaintiff Alejandro Moreno, Individually and as Next Friend of Jose Efren Moreno, take nothing
by this suit; that it be awarded all costs and expenses incurred on itsbehalf; and for such other
and further relief, both at law and in equity, to which CCSWB may show itself to be justly
entitled.
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 10
REQUEST FOR DISCLOSURE
XXVII.
Pursuant to Rule 194, request ismade that Plaintiff discloses, within thirty (30) days of
service 0f this request, the information 0r material described in Texas Rule 0f Civil Procedure
194.2(a — 1).
Respectfully submitted,
/s/ David H. Estes
DAVID H. ESTES
State Bar No. 24012599
destes@hartlinebarger.com
AMANDA A. SAPUTO
State Bar No. 24100984
asaputo@hartlinebarger.com
GUY W. SWARTZ
State Bar N0. 24083928
gswafiz@hartlinebarger.com
HARTLINE BARGER LLP
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231
Phone: (2 14) 369-2 1 00
Fax: (214) 369-21 18
ATTORNEYS FOR DEFENDANT
COCA—COLA SOUTHWEST
BEVERAGES LLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded to all known counsel 0f record in accordance with the Texas Rules of Civil Procedure
on the 6th day of March 2020.
/s/David H. Estes
DAVID H. ESTES
DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND
ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 11
Preview
FILED 3/6/2020 1:28PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS DEPUTY Darling Tellez CAUSE NO. DC-20-01687 ALEJANDRO MORENO, IN THE DISTRICT COURT Individually and as Next Friend 0f JOSE EFREN MORENO, Plaintifi: VS. WWWWWWWWWWWWWWWWW 95TH JUDICIAL DISTRICT COCA-COLA SOUTHWEST BEVERAGES, LLC, TEXAs-COLA LEASING COMPANY LP, LLLP; and MICHAEL SCOTT BYRUM Defendants. DALLAS COUNTY, TEXAS DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Coca—Cola Southwest Beverages LLC (“CCSWB”), one of the Defendants in the above titled and numbered cause, and makes and files this its Special Exception and Original Answer to Plaintiff’s Original Petition, and for such would respectfully show unto the Court as follows: SPECIAL EXCEPTION I. CCSWB specially excepts t0 Plaintiff’s failure to properly plead the full nature and maximum amount of damages sought as required by Texas Rules of Civil Procedure 47 and 56 and respectfillly requests that the Court order Plaintiff Alejandro Moreno, Individually and as Next Friend 0f Jose Efren Moreno (“Plaintiff”) to replead pursuant t0 Texas Rules 0f Civil Procedure 68 and 79. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 1 GENERAL DENIAL II. CCSWB denies generally each and every material allegation contained in Plaintiff’s Original Petition, demands strict proof thereof, and t0 the extent such matters are questions of fact, says Plaintiff should prove such facts by a preponderance 0f the evidence if he can do so. AFFIRMATIVE DEFENSES III. PLEADING FURTHER, ALTERNATIVELY AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that, at the time and 0n the occasion in question, Alejandro Efren Moreno failed to use that degree 0f care and caution that would have been used by a person with ordinary prudence under the same 0r similar circumstances, and that such failure was the sole proximate cause or the sole producing cause, or alternatively, a proximate cause or a producing cause, 0f the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and their alleged resulting damages. CCSWB, therefore, invokes the comparative responsibility provisions 0f the Texas Civil Practice and Remedies Code § 33.001, et seq. IV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and their alleged resulting damages were the result of negligent acts and/or omissions of others beyond CCSWB’S control, whose acts or omissions were the sole proximate cause or the sole producing cause, 0r alternatively, a proximate cause 0r a producing cause, of the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and their alleged resulting damages. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 2 V. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show in the unlikely event that any liability be found on its part, that such liability be reduced by the percentage 0f causation found to have resulted from the negligence of Alej andro Efren Moreno and/or any other individuals and/or entities. VI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB states that in the unlikely event that an adverse judgment is rendered against it, CCSWB respectfully prays for contribution, indemnity and/or all available credits and/or offsets as provided by the Texas Civil Practice and Remedies Code and under Texas 0r any other applicable law. VII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and any alleged resulting damages were the result, in whole or in part, 0f a new and independent cause 0r causes not foreseeable by CCSWB, or of intervening acts of others, Which were the sole proximate cause, 0r in the alternative, a proximate cause, and therefore, such new and independent acts or causes became the immediate and efficient cause or causes, such that any and all alleged negligent acts or omissions of CCSWB were not the cause 0f the accident in question, Plaintiff’s and Alejandro Efren Moreno’s alleged injuries and any alleged resulting damages. VIII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB states that the imposition of joint and several liability violates the equal DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 3 protection and due process clauses 0f the U.S. and Texas Constitutions. IX. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that Plaintiff’s claims are barred by the doctrines of estoppel, ratification and/or laches. X. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB asserts the limitation of damages recoverable as provided by applicable portions 0f the Texas Business & Commerce Code; the Texas Civil Practice and Remedies Code (including but not limited t0 Chapters 32, 33 and 38); and any other applicable statute 0r rule 0f law, and any other applicable affirmative defenses. XI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB asserts that it complied with all Federal Motor Carrier Safety Regulations and all other applicable federal requirements. Accordingly, CCSWB pleads that Plaintiff’ s claims may be barred in Whole 0r in part by the doctrine of federal preemption. XII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB invokes Section 41.0105 0f the Texas Civil Practice and Remedies Code and requests that, to the extent Plaintiff seeks recovery of medical 0r healthcare expenses, the evidence to prove such loss be limited t0 the amount actually paid by or 0n behalf of Plaintiff as opposed to the amount charged. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 4 XIII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that, pursuant to Section 18.091 of the Texas Civil Practice and Remedies Code, t0 the extent Plaintiff is seeking recovery for loss of earnings, lost wages, loss 0f earning capacity, and/or loss of contributions of a pecuniary value, Plaintiff must present evidence 0f the alleged loss in the form 0f a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law. XIV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB pleads that Plaintiff and/or Alejandro Efren Moreno failed t0 mitigate his damages herein as required under applicable law and therefore any such claims 0r causes 0f action are barred to that extent. XV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that Plaintiff s and Alejandro Efren Moreno’s alleged injuries and alleged resulting damages are the result, in whole or in part, of pre-existing and/or subsequent conditions. XVI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that some or all of the medical treatment claimed by Plaintiff was excessive, unreasonable, and unnecessary and was not proximately caused by any act and/or omissions 0f CCSWB. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 5 XVII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that some or all of Plaintiff’s claims are barred because Plaintiff has failed to fully perform all conditions and/or conditions precedent required t0 be performed on Plaintiff” s part and those conditions have not occurred and have not been waived. XVIII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB pleads the defense of unconstitutionality, in that any award of punitive 0r exemplary damages would constitute the imposition 0f a criminal penalty without the safeguards guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments 0f the Constitution 0f the United States, and similar provisions 0f the Texas Constitution. Furthermore, the imposition of such punitive or exemplary damages constitutes an excessive fine under the Eighth Amendment, denies CCSWB equal protection of the law under the Fourteenth Amendment, and violates the due process clause 0f the Fifth and Fourteenth Amendments. CCSWB pleads that any claim by Plaintiff for punitive or exemplary damages should be stricken as unconstitutional and that any award of punitive or exemplary damages should be set aside for the reasons stated above. XIX. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that the imposition of punitive damages sought by Plaintiff violates CCSWB’S rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution, t0 due course of law and equal protection under Article 1 and 19 of the Texas Constitution, and the prohibition against excessive fines in Article 1, section 13 0f the Texas Constitution, in that: DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 6 (a) Texas law and the Texas punitive damage scheme, both facially and as applied in this case, provide n0 constitutionally adequate or meaningful standards t0 guide a jury 0r the court in determining whether, and if so in what amount, to award punitive damages; there is no sufficiently clear definition of the conduct 0r mental state that makes punitive damages permissible, and n0 sufficiently clear standard for determining the appropriate size of an award. Texas law and the Texas punitive damage scheme leave the determination Whether t0 award and, if so, the amount of punitive damages to the arbitrary discretion 0f the trier of fact without providing adequate 0r meaningful guidelines for 0r limits t0 the exercise of that discretion. (b) CCSWB had n0 notice 0f or means 0f ascertaining whether, or if so in What amount, he might be subject to a penalty for the conduct alleged by Plaintiff in this case. That lack 0f notice was compounded by the absence of any adequate 0r meaningfiJI standards as t0 the kind 0f conduct that might subject CCSWB t0 punitive damages or as t0 the potential amount 0f such an award. (c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed on the limits on punitive damages imposed by the purposes for Which such damages are assessed. (d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly prohibited from awarding punitive damages, in whole or in part, 0n the basis 0f invidiously discriminatory characteristics, including the corporate status 0f a defendant. (e) N0 provision of Texas law 0r the Texas punitive damage scheme provides adequate procedural safeguards consistent With the criteria set forth in BMW ofNorth America, Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v.Haslip, 499 U.S. 1 (1990), and Matthews v. Eldridge, 424 U.S. 3 19 (1976) for the imposition of a punitive award. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 7 (f) Texas law and the Texas punitive damage scheme do not provide for adequate post-trial review 0f punitive damage awards or the amount thereof, and d0 not provide objective standards for such review. (g) Texas law and the Texas punitive damage scheme do not provide for adequate appellate review 0f punitive damage awards or the amount thereof, and d0 not provide obj ective standards for such review. Those inadequacies are compounded by the constraints upon review 0f such awards by the Texas Supreme Court, including Article 5, section 6 0f the Texas Constitution and section 22.225 0f the Texas Government Code. (h) In the admission of evidence, the standards provided the trier of fact (including jury instructions), and post-trial and appellate review, Texas law and the Texas punitive damage scheme, including sections 41 .001 through 41.013 of the Texas Civil Practice & Remedies Code, place undue emphasis 0n a defendant’s wealth as a basis for making and enhancing a punitive damage award, and do not require that the award not be based on any desire to redistribute wealth. (i) Under Texas law and the Texas punitive damage scheme, there is no limit on the number of times CCSWB could be held accountable for punitive damages based on the same alleged conduct as that alleged in this case. XX. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that the net effect of Texas’s punitive damage system is t0 impose punitive damages in an arbitrary and discriminatory manner. The lack 0f adequate guidelines or review and undue emphasis on defendant’s wealth inevitably lead to variations in result Without any rational basis for differentiation, and Without serving any legitimate DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 8 governmental purpose or interest. As a result, the federal and state (U.S. Const. Amend 14; Texas Const. Art. 1, § 3) constitutional mandates for equal protection are violated. Insofar as the lodestone of the Texas punitive damage system is in the depth 0f the defendant’s pockets, that invidious discrimination is itself an affront to the federal and state constitutions’ equal protection mandates. XXI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, CCSWB would show that insofar as the punitive damage award sought by Plaintiff seeks to impose punitive damages under Texas law for conduct in other states, the award violates: (a) CCSWB’s rights t0 due process and due course of law under the Fourteenth Amendment of the United States Constitution and Article 1, section 19 0f the Texas Constitution; (b) the dormant or negative commerce clause derived from Article 1,section 8, clause 3 of the United States Constitution; (c) the Full Faith and Credit Clause of Article IV, section 1 0f the United States Constitution; (d) the requirement of the United States Constitution that a state respect the autonomy 0f other states within their spheres; and (e) the prohibition against excessive fines in Article 1, section 13 of the Texas Constitution. XXII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 9 DEFENSE, CCSWB would show that by Virtue of Section 41.008 of the Texas Civil Practice and Remedies Code, any award of exemplary damages is subject t0 the cap specified in that section and any award in excess of that cap must be reduced accordingly. XXIII. CCSWB gives notice that it intends t0 rely upon such other defenses or denials as may become available or appear during discovery as it proceeds in this matter, and hereby reserves the right to amend itsAnswer to assert such defenses. XXIV. CCSWB respectfully requests that a court reporter attend all sessions 0f court in connection with this case, and that said court reporter take full notes of all testimony offered, together With any objections, rulings and remarks of the Court and exceptions thereto, and such other proceedings as may be needed or requested by CCSWB. See Christie v. Price, 558 S.W.2d 922 (Tex. App. — Texarkana 1977, no writ). TEX. R. CIV. P. 193.7 NOTICE XXV. Pursuant t0 Texas Rule 0f Civil Procedure 193.7, CCSWB provides notice that any document produced by Plaintiff may be used in court proceedings by CCSWB. PRAYER XXVI. WHEREFORE, PREMISES CONSIDERED, Defendant CCSWB respectfully prays that Plaintiff Alejandro Moreno, Individually and as Next Friend of Jose Efren Moreno, take nothing by this suit; that it be awarded all costs and expenses incurred on itsbehalf; and for such other and further relief, both at law and in equity, to which CCSWB may show itself to be justly entitled. DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 10 REQUEST FOR DISCLOSURE XXVII. Pursuant to Rule 194, request ismade that Plaintiff discloses, within thirty (30) days of service 0f this request, the information 0r material described in Texas Rule 0f Civil Procedure 194.2(a — 1). Respectfully submitted, /s/ David H. Estes DAVID H. ESTES State Bar No. 24012599 destes@hartlinebarger.com AMANDA A. SAPUTO State Bar No. 24100984 asaputo@hartlinebarger.com GUY W. SWARTZ State Bar N0. 24083928 gswafiz@hartlinebarger.com HARTLINE BARGER LLP 8750 North Central Expressway, Suite 1600 Dallas, Texas 75231 Phone: (2 14) 369-2 1 00 Fax: (214) 369-21 18 ATTORNEYS FOR DEFENDANT COCA—COLA SOUTHWEST BEVERAGES LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all known counsel 0f record in accordance with the Texas Rules of Civil Procedure on the 6th day of March 2020. /s/David H. Estes DAVID H. ESTES DEFENDANT COCA-COLA SOUTHWEST BEVERAGES LLC’S SPECIAL EXCEPTION AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 11