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CAUSE NO. 2019 13916
WAHDE SEJJARI § INTHE DISTRICT COURT OF
VS. § HARRIS COUNTY, TEXAS
§
FARMERS TEXAS COUNTY §
MUTUAL INSURANCE COMPANY § SSTHJUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
Plaintiffs complain of Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE
COMPANY (hereinafter referred
to as “Farmers”) and for causes of action shows:
Discovery Control Plan Level
Pursuant
to Rule 190.4 of the Texas Rules of Civil Procedure, Plaintiffs intend
that discovery be
conducted under Discovery Level .
Parties
Plaintiff is an individual residing in Houston, Harris County, Texas. (TXDL: ######041, SSN: ###
H#H632).
Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANYis a insurance
company authorized to conduct business in Texas. This Defendant has been served and filed an answer
herein.
Venue and Jurisdicti
‘Venue
is proper in HARRIS County, Texas because the events made the basis of the claim
occurred in HARRIS County, Texas. The court has personal jurisdiction over Farmers because it is a
domestic corporation. The amount in controversy exceeds the minimum limits of this court.
Background
This lawsuit results from a motor vehicle collision that occurred on or about February 23, 2015
in which Plaintiff was seriously injured by a third party driver The third party driver was insured but
their liability limits were grossly inadequate to compensate for Plaintiff damages The third party
driverwes exinsured to adequately compensate Plaintifffor her damages from this collision
Plaintiff timely notified Defendant Farmers of their claims. Despite receipt of Plaintiff's claim
and Plaintiff providing Defendant with proof of damages far in excess of the third party driver's liability
coverage, Defendant has failed to tender policy limits even though Defendant has been in possession of
adequate information to evaluate the claim for over 30 days.
Plaintiff has made claims for her injuries and damages o her Farmers Underinsured Motorist
ontract to provide for her injuries and losses sustained in an accident where the responsible parties are
underinsured Farmers Underinsured Motorist has unreasonably and in bad faith refused to investigate
the claim and enter a fair settlement This is unjust in light of Plaintiffs losses in the past and in the
future.
Breach of Contract
Plaintiff sue for coverage under her contract of insurance with Farmers; all conditions precedent
to filing of this suit has been met and despite timely written claims and demands under the policy,
Farmers has failed to pay the benefits due. Farmers’ actions amount to, among other things, a breach of
contract. Accordingly, Plaintiffseek damages and attomey’s fees from Farmers or breach of contract.
Violation of Texas Deceptive Trade Practices Act
Plaintiffassert that the d efendant engaged in false, misleading, deceptive acts and practices, as
defined
by the Texas Deceptive Trade Practices Act(“DTPA"), Tex. Bus. & Com. CodeA m§17.41 el.
seq., more specifically stated as follows:
§17.46(b)(5): representing that goods or services have sponsorship, approval, characteristics,
ients, uses, benefits, or quantities which they do not have or that a person.
has sponsorship, approval, status, affiliation, or connection which he does not;
§17.46(b)(7): representing that goods or services are of a particular standard, quality, or grade,
or that goods are of a particularstyle or model if they are of another;
§17.46(b)(12): representing that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve;
§17.50(a)(2): breach
of express or implied warranties; and
§17.50(a)(3): that the acts or omissions complained of were unconscionable.
Plaintiff would further show that the Defendant acts and practices, which were the producing
cause of Plaintiff damages, were committed knowingl y and intentionally. Defendant fraudulent and
deceptive conduct and the resulting damage and loss to Plaintiff havenecessitated Plaintiff's retention of
the undersigned attomey. Pursuant
to Tex. Bus. & Com Code Amn. § 17.50(d), Plaintiff entitled to
recover attomeys' fees that are reasonable and necessary for the preparation and trial of this cause as
well as reasonable
and necessary fees for appellate services expended
in connection with this suit.
Breach of the Duty of Good Faith and Fair Dealing.
Prior to filing this action, Plaintiff notified Farmers of her claim under the underinsured motorist
provision of the policy and all conditions precedent to obtaining benefits had been met. Plaintiff
provided Farmers documentation and information reasonably necessary for the evaluation of her claim.
Despite this, Farmersrefused to pay the value of Plaintiff’s c laim.
Plaintiff would further show that Farmers breached the common law duty of good faith and fair
dealing in the following respects:
by Payments on the full value of Plaintiff claim when there was no reasonable
basis for such denial; and
by withholding payment of the claim when Farmers knew or should have known that
there was no reasonable basis for doing so.
The evidence in this case establishes that Defendantbreached their duty to act in good faith and
fairly deal with Plaintiff in that Defendants have no reasonable basis for refusingto meet their
obligations to pay under the Underinsured Motorist protection. As a consequence, Defendantis liable
for actual damages, punitive damages and other relief as pled for in this petition.
Exemplary Damages
The conduct of Farmers in failing to properly investigate, process, evaluate
and engage in good faith
settlement negotiations constitutes a conscious disregard of the rights of all PlaintiffsFarmers was both
grossly negligent and recklessly indifferent
to Plaintiff’s rights in refusing to pay the underinsured limits
their claim . Indeed, Farmers’ actions and behavior are such for which the law allows the imposition
of exemplary damages under the common law theories of the violation of the duty of good faith and fair
dealing, and as a result of the breach of Farmers’ fiduciary duty to Plaintiff. Accordingly, Plaintiff seeks
exemplary damages from Farmers
Violations and Liability underthe Texas Insurance C ode
This suit is brought against Farmers, in part, pursuant to the Texas Insurance
Code. Written
notice has been provided in accordance with the Texas Insurance Code.
The evidence will show that Defendantparticipated in unfair claims settlement practices as
articulated in opEFurther , under the holding of Vail v. Texas Farm Bureau
Mutual Insurance Company, 754 S.W.2d 129 (Tex. 1988), violations of the Texas Insurance Code
and/or tules or regulations issued by The State Board of Insurance create liability under the DTPA, in
addition to all penalties and liabilities articulated in the Texas Insurance Code. This liability includes
but is not limited to Defendants’ failure to attempt in good faith to effectuate a prompt fair and equitable
settlement of the claim made by Plaintiff. Further, Defendants are liable for damages under the
provisions of ODE
Defendant breached its duty of good faith and fair dealing as provided by the Insurance Code
when it unreasonably refused to compensate Plaintiff for their injuries and damages incurred as a result
of the automohile collision. Specifically, Farmers failed 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 becom
reasonably clear. Further, Farmers failed to provide promptly to Plaintiff a reasonable explanation of
the basis in the policy, in relation to the facts or applicable
law, for the insurer's refusal to pay the claim.
Plaintiff
would further show that armers refused to pay the reasonable value of a claim without
conducting a reasonable investigation with respect to the claim. Also, Farmers
had actual awareness
of
the unfaimess of their unreasonable refusal to compensate Plaintiff.
Farmers’ actions and omissions in connection with its unfair settlement practices were
producing cause of Plaintiff actual damages. Pursuant to the Insurance Code, Plaintiff entitled to
actual damages, treble damages, costs of court and attomeys
fees.
Misrepresentation and Fraud
Plaintiffallege that the re presentations
made by Defendantconceming
coverage under her
Underinsured Motorist coverage were misrepresentations and constitute fraud in that the representations
were material, were false when made or were made recklessly and thatPlaintiff relied on such
representations
and as a result suffered injuries and damages.
Damag
As a direct and proximate result of Farmers’ breach
of contract, breach of the duty of goof faith
and breach of fiduciary duty violations of the Texas Insurance Code and violations of the Deceptive
Trade Practices Acts Plaintiff suffered damages. Plaintiff entitled to the following:
Medical Expenses and Physical Impairment
Plaintiff hasincurred past and current expenses for medical cure. Reasonable
and necessary
expenses
for medical care have been incurred
by and on Plaintiff s behalf Plaintiff will require future
medical cure for herinjuries as a result of this incident. These expenses were incurred for necessary care
and treatment of the injuries resulting from the incident made the basis of this suit. The charges were
reasonable and they were the customary charges for such service in and around the state of Texas. In
reasonable probability such expenses will continue to be incurred in the future.
Lost Wages
As aresult
of the accident, Plaintiff haslost wages and in all probability will continue
to lose
wages due to ongoing medical treatment.
While Plaintiffhas sustained actual damages exceeding
the jurisdictional limits o f this court, she
desire to leave
the total amount of these damages to the sole determination of ajury, based upon the
credible evidence developed at trial, without regard to sympathy, prejudice or bias.
Statutory Damages
As aresult of Defendant — ction and/or omissions, and/or the acts/omissions of its agents,
Plaintiff areentitled to statutory damages as provided for in various statutes, including buy not limited
to the Texas Insurance Code and the Texas Deceptive Trade Practices Act.
Me Anguish
As aresult of Defendant action and/or omissions, and/or the acts/omissions of its agents,
Plaintiff hassuffered, and is entitled
to recover for, mental anguish.
5. Pain and Suffering
Plaintiff hasincurred physical and mental distress suffere d from herinjuries.
In accordance with the Texas Rules of Civil Procedure, Plaintiff specifically seeks monetary
relief over $1,000,000.00.
JURY DEMAND
Plaintiffrequest a trial by jury.
PRAYER
WHEREFORE, Plaintiff request that Defendant be cited to appear
and answer, and that, after
tral, Plaintiffhave judgment against Defendant for:
Damages in an amount within the jurisdiction of the Court in recompense for
Plaintiff s suffering personal injuries and her consequences, resulting
in past and
future: a) medical expenses; b) pain and suffering; c) mental anguish, d) loss of
eaming capacity, and e) permanent physical impairment
and loss of body
function;
All damages recoverable pursuant to all statutes cited herein, including, but not
limited to treble damages;
Reasonable attomey’s fees;
Prejudgment
interest as provided by law;
Post judgment interest as provided by law from the date of judgment until paid;
For such other and further relief, both general and special, at law or in equity, to which
Plaintiff may show herse justly entitled.
espectfully submitted,
SCHECHTER, McELWEE, SHAFFER& HARRIS, L.L.P.
/s/ Jonathan
S. Harris
JONATHAN S. HARRIS
TBA #24029402
3200 Travis, 3° Hoor
Houston, Texas 77006
Ta
Fax:
jhanissrv@smslegal.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on this the day of January atrue and conect copy of Plaintiff’s
First Amended Petitionhas been forwarded all counsel of record via electronic filing th rough the
Court, certified mail, fax transmission and/or email in compliance with Rules 21 and 21a of the Texas
Rules of Civil Procedure.
RJ. Blue, Esq.
Law Offices of Fanaff, Hoagland & Gonzales
11700 Katy Freeway, Suite 500
Houston, TX 77079
/s/ JonathanS. Harris
JONATHAN S. HARRIS
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CAUSE NO. 2019 13916 WAHDE SEJJARI § INTHE DISTRICT COURT OF VS. § HARRIS COUNTY, TEXAS § FARMERS TEXAS COUNTY § MUTUAL INSURANCE COMPANY § SSTHJUDICIAL DISTRICT PLAINTIFF’S FIRST AMENDED PETITION Plaintiffs complain of Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY (hereinafter referred to as “Farmers”) and for causes of action shows: Discovery Control Plan Level Pursuant to Rule 190.4 of the Texas Rules of Civil Procedure, Plaintiffs intend that discovery be conducted under Discovery Level . Parties Plaintiff is an individual residing in Houston, Harris County, Texas. (TXDL: ######041, SSN: ### H#H632). Defendant, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANYis a insurance company authorized to conduct business in Texas. This Defendant has been served and filed an answer herein. Venue and Jurisdicti ‘Venue is proper in HARRIS County, Texas because the events made the basis of the claim occurred in HARRIS County, Texas. The court has personal jurisdiction over Farmers because it is a domestic corporation. The amount in controversy exceeds the minimum limits of this court. Background This lawsuit results from a motor vehicle collision that occurred on or about February 23, 2015 in which Plaintiff was seriously injured by a third party driver The third party driver was insured but their liability limits were grossly inadequate to compensate for Plaintiff damages The third party driverwes exinsured to adequately compensate Plaintifffor her damages from this collision Plaintiff timely notified Defendant Farmers of their claims. Despite receipt of Plaintiff's claim and Plaintiff providing Defendant with proof of damages far in excess of the third party driver's liability coverage, Defendant has failed to tender policy limits even though Defendant has been in possession of adequate information to evaluate the claim for over 30 days. Plaintiff has made claims for her injuries and damages o her Farmers Underinsured Motorist ontract to provide for her injuries and losses sustained in an accident where the responsible parties are underinsured Farmers Underinsured Motorist has unreasonably and in bad faith refused to investigate the claim and enter a fair settlement This is unjust in light of Plaintiffs losses in the past and in the future. Breach of Contract Plaintiff sue for coverage under her contract of insurance with Farmers; all conditions precedent to filing of this suit has been met and despite timely written claims and demands under the policy, Farmers has failed to pay the benefits due. Farmers’ actions amount to, among other things, a breach of contract. Accordingly, Plaintiffseek damages and attomey’s fees from Farmers or breach of contract. Violation of Texas Deceptive Trade Practices Act Plaintiffassert that the d efendant engaged in false, misleading, deceptive acts and practices, as defined by the Texas Deceptive Trade Practices Act(“DTPA"), Tex. Bus. & Com. CodeA m§17.41 el. seq., more specifically stated as follows: §17.46(b)(5): representing that goods or services have sponsorship, approval, characteristics, ients, uses, benefits, or quantities which they do not have or that a person. has sponsorship, approval, status, affiliation, or connection which he does not; §17.46(b)(7): representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particularstyle or model if they are of another; §17.46(b)(12): representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve; §17.50(a)(2): breach of express or implied warranties; and §17.50(a)(3): that the acts or omissions complained of were unconscionable. Plaintiff would further show that the Defendant acts and practices, which were the producing cause of Plaintiff damages, were committed knowingl y and intentionally. Defendant fraudulent and deceptive conduct and the resulting damage and loss to Plaintiff havenecessitated Plaintiff's retention of the undersigned attomey. Pursuant to Tex. Bus. & Com Code Amn. § 17.50(d), Plaintiff entitled to recover attomeys' fees that are reasonable and necessary for the preparation and trial of this cause as well as reasonable and necessary fees for appellate services expended in connection with this suit. Breach of the Duty of Good Faith and Fair Dealing. Prior to filing this action, Plaintiff notified Farmers of her claim under the underinsured motorist provision of the policy and all conditions precedent to obtaining benefits had been met. Plaintiff provided Farmers documentation and information reasonably necessary for the evaluation of her claim. Despite this, Farmersrefused to pay the value of Plaintiff’s c laim. Plaintiff would further show that Farmers breached the common law duty of good faith and fair dealing in the following respects: by Payments on the full value of Plaintiff claim when there was no reasonable basis for such denial; and by withholding payment of the claim when Farmers knew or should have known that there was no reasonable basis for doing so. The evidence in this case establishes that Defendantbreached their duty to act in good faith and fairly deal with Plaintiff in that Defendants have no reasonable basis for refusingto meet their obligations to pay under the Underinsured Motorist protection. As a consequence, Defendantis liable for actual damages, punitive damages and other relief as pled for in this petition. Exemplary Damages The conduct of Farmers in failing to properly investigate, process, evaluate and engage in good faith settlement negotiations constitutes a conscious disregard of the rights of all PlaintiffsFarmers was both grossly negligent and recklessly indifferent to Plaintiff’s rights in refusing to pay the underinsured limits their claim . Indeed, Farmers’ actions and behavior are such for which the law allows the imposition of exemplary damages under the common law theories of the violation of the duty of good faith and fair dealing, and as a result of the breach of Farmers’ fiduciary duty to Plaintiff. Accordingly, Plaintiff seeks exemplary damages from Farmers Violations and Liability underthe Texas Insurance C ode This suit is brought against Farmers, in part, pursuant to the Texas Insurance Code. Written notice has been provided in accordance with the Texas Insurance Code. The evidence will show that Defendantparticipated in unfair claims settlement practices as articulated in opEFurther , under the holding of Vail v. Texas Farm Bureau Mutual Insurance Company, 754 S.W.2d 129 (Tex. 1988), violations of the Texas Insurance Code and/or tules or regulations issued by The State Board of Insurance create liability under the DTPA, in addition to all penalties and liabilities articulated in the Texas Insurance Code. This liability includes but is not limited to Defendants’ failure to attempt in good faith to effectuate a prompt fair and equitable settlement of the claim made by Plaintiff. Further, Defendants are liable for damages under the provisions of ODE Defendant breached its duty of good faith and fair dealing as provided by the Insurance Code when it unreasonably refused to compensate Plaintiff for their injuries and damages incurred as a result of the automohile collision. Specifically, Farmers failed 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 becom reasonably clear. Further, Farmers failed to provide promptly to Plaintiff a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer's refusal to pay the claim. Plaintiff would further show that armers refused to pay the reasonable value of a claim without conducting a reasonable investigation with respect to the claim. Also, Farmers had actual awareness of the unfaimess of their unreasonable refusal to compensate Plaintiff. Farmers’ actions and omissions in connection with its unfair settlement practices were producing cause of Plaintiff actual damages. Pursuant to the Insurance Code, Plaintiff entitled to actual damages, treble damages, costs of court and attomeys fees. Misrepresentation and Fraud Plaintiffallege that the re presentations made by Defendantconceming coverage under her Underinsured Motorist coverage were misrepresentations and constitute fraud in that the representations were material, were false when made or were made recklessly and thatPlaintiff relied on such representations and as a result suffered injuries and damages. Damag As a direct and proximate result of Farmers’ breach of contract, breach of the duty of goof faith and breach of fiduciary duty violations of the Texas Insurance Code and violations of the Deceptive Trade Practices Acts Plaintiff suffered damages. Plaintiff entitled to the following: Medical Expenses and Physical Impairment Plaintiff hasincurred past and current expenses for medical cure. Reasonable and necessary expenses for medical care have been incurred by and on Plaintiff s behalf Plaintiff will require future medical cure for herinjuries as a result of this incident. These expenses were incurred for necessary care and treatment of the injuries resulting from the incident made the basis of this suit. The charges were reasonable and they were the customary charges for such service in and around the state of Texas. In reasonable probability such expenses will continue to be incurred in the future. Lost Wages As aresult of the accident, Plaintiff haslost wages and in all probability will continue to lose wages due to ongoing medical treatment. While Plaintiffhas sustained actual damages exceeding the jurisdictional limits o f this court, she desire to leave the total amount of these damages to the sole determination of ajury, based upon the credible evidence developed at trial, without regard to sympathy, prejudice or bias. Statutory Damages As aresult of Defendant — ction and/or omissions, and/or the acts/omissions of its agents, Plaintiff areentitled to statutory damages as provided for in various statutes, including buy not limited to the Texas Insurance Code and the Texas Deceptive Trade Practices Act. Me Anguish As aresult of Defendant action and/or omissions, and/or the acts/omissions of its agents, Plaintiff hassuffered, and is entitled to recover for, mental anguish. 5. Pain and Suffering Plaintiff hasincurred physical and mental distress suffere d from herinjuries. In accordance with the Texas Rules of Civil Procedure, Plaintiff specifically seeks monetary relief over $1,000,000.00. JURY DEMAND Plaintiffrequest a trial by jury. PRAYER WHEREFORE, Plaintiff request that Defendant be cited to appear and answer, and that, after tral, Plaintiffhave judgment against Defendant for: Damages in an amount within the jurisdiction of the Court in recompense for Plaintiff s suffering personal injuries and her consequences, resulting in past and future: a) medical expenses; b) pain and suffering; c) mental anguish, d) loss of eaming capacity, and e) permanent physical impairment and loss of body function; All damages recoverable pursuant to all statutes cited herein, including, but not limited to treble damages; Reasonable attomey’s fees; Prejudgment interest as provided by law; Post judgment interest as provided by law from the date of judgment until paid; For such other and further relief, both general and special, at law or in equity, to which Plaintiff may show herse justly entitled. espectfully submitted, SCHECHTER, McELWEE, SHAFFER& HARRIS, L.L.P. /s/ Jonathan S. Harris JONATHAN S. HARRIS TBA #24029402 3200 Travis, 3° Hoor Houston, Texas 77006 Ta Fax: jhanissrv@smslegal.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on this the day of January atrue and conect copy of Plaintiff’s First Amended Petitionhas been forwarded all counsel of record via electronic filing th rough the Court, certified mail, fax transmission and/or email in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure. RJ. Blue, Esq. Law Offices of Fanaff, Hoagland & Gonzales 11700 Katy Freeway, Suite 500 Houston, TX 77079 /s/ JonathanS. Harris JONATHAN S. HARRIS