On May 27, 2020 a
Answer
was filed
involving a dispute between
Rhea, Clendon,
and
Allstate Fire And Casualty Insurance Company,
for MOTOR VEHICLE ACCIDENT
in the District Court of Dallas County.
Preview
FILED
7/15/2020 3:16PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Gia Rodriguez DEPUTY
CAUSE NO. DC-20-07324
CLENDON RHEA, IN THE DISTRICT COURT
Plaintiff,
V.
95TH JUDICIAL DISTRICT
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
DALLAS COUNTY, TEXAS
DEFENDANT’S SPECIAL EXCEPTION AND ORIGINAL ANSWER
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, hereinafter referred to
as Defendant Allstate, files this Special Exception & Original Answer in response t0 the claim 0f
CLENDON RHEA, hereinafter referred to as Plaintiff, Whether one 0r more, and respectfully
shows the Court the following:
A. SPECIAL EXCEPTION
1. Plaintiff has pled in their most recent petition that they have a claim under Ch. 37
of the Texas Civil Practice and Remedies Code for a declaratory judgment and UM/UIM
benefits. Defendant Allstate agrees that Plaintiff has a right to pursue a claim for first-party
benefits under the UM/UIM policy 0f Allstate through this lawsuit, but Defendant Allstate
disagrees that this Claim can be pursed as a through a petition for a declaratory judgment under
Ch. 37 in this context. As a result, Defendant Allstate specially excepts to the language in
Plaintiff” s petition referencing Ch. 37 of the Texas Civil Practice and Remedies Code and any
claim for a declaratory judgment and requests that Plaintiff replead her petition eliminating these
references.
Rhea vs. Allstate PAGE 1
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER
Our File Number: 053 1 160653.1
B. ANSWER
2. Defendant Allstate admits that it issued an automobile policy of insurance to
Plaintiff.
3. Defendant Allstate would show that it intends to comply with the terms and
conditions of the policy sued on and agrees t0 pay to Plaintiff those monies which the Plaintiff
may be entitled to recover as damages as determined by the Court and Jury. This Defendant
Allstate specifically does not agree to waive any right ithas under the policy 0f insurance sued 0n
herein and insists on itsrights as contained in said policy, including the definitions, conditions
and exclusions contained therein.
4. Defendant Allstate specifically pleads, as an affirmative defense pursuant t0 rule
94 TRCP, the Limitation 0f its Liability as stated in the "Limit of Liability" clause contained in
the policy sued 0n. Defendant Allstate says its liability is limited t0 the amount 0f uninsured /
underinsured coverage purchased by the insured and reduced by any applicable reduction clauses
0r pro-rata clauses contained in said policy.
5. Subject to the admission made above, Defendant Allstate asserts a general denial,
as authorized by the Texas Rules 0f Civil Procedure, and respectfully requests the Court and Jury
to require Plaintiff t0 prove Plaintiffs claims, charges and allegations by a preponderance of the
evidence, as required by the Constitution and laws of the state of Texas.
6. Defendant Allstate specifically claims any credit 0r offset available from
payments made by 0r 0n behalf 0f any alleged underinsured motorist.
7. Further, Defendant Allstate would show by way 0f affirmative defense that there
are contractual provisions With Which the Plaintiff has failed to comply. Specifically, Plaintiff
has failed t0 establish that there are damages t0 Which Plaintiff is legally entitled t0 recover from
Rhea vs. Allstate PAGE 2
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER
Our File Number: 053 1 160653.1
the owner or operator 0f an uninsured 0r underinsured motor vehicle, as required by the contract
of insurance between Plaintiff and Defendant Allstate. Until such time, Defendant Allstate is
under n0 duty t0 pay benefits t0 the Plaintiff. Sikes V. Zuloaga, 830 S.W.2d 752 (TeX.App.--
Austin, 1992).
8. Additionally, t0 the extent that Plaintiff’s medical specials exceed the amount
actually paid 0n Plaintiff’s behalf, Defendant Allstate asserts the statutory defense set forth in
Section 41.0105 of the Texas Civil Practice and Remedies Code. Thus, recovery of medical or
health care expenses incurred by Plaintiff is limited t0 the amount actually paid 0r incurred by or
0n behalf 0f the Plaintiff.
9. Defendant Allstate respectfully demands a jury trial.
WHEREFORE, Defendant Allstate prays that Plaintiff’s special exception be granted,
and that Plaintiff take nothing by Plaintiffs suit against Defendant Allstate, that Defendant
Allstate be discharged, that Defendant Allstate be awarded its costs 0f Court, and for all further
relief, both general and special, at law and in equity, t0 Which Defendant Allstate may be entitled.
Rhea vs. Allstate PAGE 3
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER
Our File Number: 053 1 160653.1
Respectfully submitted,
WW
SUSAN L.
1201
FLORENCE & ASSOCIATES
YOUNG C. JENKINS
TBN: 24034505
Elm Street, Suite 5050
Dallas, TX 75270
DallasLegal@allstate.com
(214) 659-4346
(877) 678-4763 (fax)
ATTORNEY FOR DEFENDANT(S)
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY
Rhea vs. Allstate PAGE 4
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER
Our File Number: 053 1 160653.1
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served in
compliance with Rules 21 and 21a of the Texas Rules 0f Civil Procedure on July 15, 2020:
Camilo Valencia
State Bar No. 241 10468
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
W
eSerVice@benabbott.com
Attorney for Plaintiff
YOUNG C. JENKINS
Rhea vs. Allstate PAGE 5
DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER
Our File Number: 053 l 160653.]
Document Filed Date
July 15, 2020
Case Filing Date
May 27, 2020
Category
MOTOR VEHICLE ACCIDENT
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FILED 7/15/2020 3:16PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Gia Rodriguez DEPUTY CAUSE NO. DC-20-07324 CLENDON RHEA, IN THE DISTRICT COURT Plaintiff, V. 95TH JUDICIAL DISTRICT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. DALLAS COUNTY, TEXAS DEFENDANT’S SPECIAL EXCEPTION AND ORIGINAL ANSWER ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, hereinafter referred to as Defendant Allstate, files this Special Exception & Original Answer in response t0 the claim 0f CLENDON RHEA, hereinafter referred to as Plaintiff, Whether one 0r more, and respectfully shows the Court the following: A. SPECIAL EXCEPTION 1. Plaintiff has pled in their most recent petition that they have a claim under Ch. 37 of the Texas Civil Practice and Remedies Code for a declaratory judgment and UM/UIM benefits. Defendant Allstate agrees that Plaintiff has a right to pursue a claim for first-party benefits under the UM/UIM policy 0f Allstate through this lawsuit, but Defendant Allstate disagrees that this Claim can be pursed as a through a petition for a declaratory judgment under Ch. 37 in this context. As a result, Defendant Allstate specially excepts to the language in Plaintiff” s petition referencing Ch. 37 of the Texas Civil Practice and Remedies Code and any claim for a declaratory judgment and requests that Plaintiff replead her petition eliminating these references. Rhea vs. Allstate PAGE 1 DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER Our File Number: 053 1 160653.1 B. ANSWER 2. Defendant Allstate admits that it issued an automobile policy of insurance to Plaintiff. 3. Defendant Allstate would show that it intends to comply with the terms and conditions of the policy sued on and agrees t0 pay to Plaintiff those monies which the Plaintiff may be entitled to recover as damages as determined by the Court and Jury. This Defendant Allstate specifically does not agree to waive any right ithas under the policy 0f insurance sued 0n herein and insists on itsrights as contained in said policy, including the definitions, conditions and exclusions contained therein. 4. Defendant Allstate specifically pleads, as an affirmative defense pursuant t0 rule 94 TRCP, the Limitation 0f its Liability as stated in the "Limit of Liability" clause contained in the policy sued 0n. Defendant Allstate says its liability is limited t0 the amount 0f uninsured / underinsured coverage purchased by the insured and reduced by any applicable reduction clauses 0r pro-rata clauses contained in said policy. 5. Subject to the admission made above, Defendant Allstate asserts a general denial, as authorized by the Texas Rules 0f Civil Procedure, and respectfully requests the Court and Jury to require Plaintiff t0 prove Plaintiffs claims, charges and allegations by a preponderance of the evidence, as required by the Constitution and laws of the state of Texas. 6. Defendant Allstate specifically claims any credit 0r offset available from payments made by 0r 0n behalf 0f any alleged underinsured motorist. 7. Further, Defendant Allstate would show by way 0f affirmative defense that there are contractual provisions With Which the Plaintiff has failed to comply. Specifically, Plaintiff has failed t0 establish that there are damages t0 Which Plaintiff is legally entitled t0 recover from Rhea vs. Allstate PAGE 2 DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER Our File Number: 053 1 160653.1 the owner or operator 0f an uninsured 0r underinsured motor vehicle, as required by the contract of insurance between Plaintiff and Defendant Allstate. Until such time, Defendant Allstate is under n0 duty t0 pay benefits t0 the Plaintiff. Sikes V. Zuloaga, 830 S.W.2d 752 (TeX.App.-- Austin, 1992). 8. Additionally, t0 the extent that Plaintiff’s medical specials exceed the amount actually paid 0n Plaintiff’s behalf, Defendant Allstate asserts the statutory defense set forth in Section 41.0105 of the Texas Civil Practice and Remedies Code. Thus, recovery of medical or health care expenses incurred by Plaintiff is limited t0 the amount actually paid 0r incurred by or 0n behalf 0f the Plaintiff. 9. Defendant Allstate respectfully demands a jury trial. WHEREFORE, Defendant Allstate prays that Plaintiff’s special exception be granted, and that Plaintiff take nothing by Plaintiffs suit against Defendant Allstate, that Defendant Allstate be discharged, that Defendant Allstate be awarded its costs 0f Court, and for all further relief, both general and special, at law and in equity, t0 Which Defendant Allstate may be entitled. Rhea vs. Allstate PAGE 3 DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER Our File Number: 053 1 160653.1 Respectfully submitted, WW SUSAN L. 1201 FLORENCE & ASSOCIATES YOUNG C. JENKINS TBN: 24034505 Elm Street, Suite 5050 Dallas, TX 75270 DallasLegal@allstate.com (214) 659-4346 (877) 678-4763 (fax) ATTORNEY FOR DEFENDANT(S) ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY Rhea vs. Allstate PAGE 4 DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER Our File Number: 053 1 160653.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served in compliance with Rules 21 and 21a of the Texas Rules 0f Civil Procedure on July 15, 2020: Camilo Valencia State Bar No. 241 10468 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile W eSerVice@benabbott.com Attorney for Plaintiff YOUNG C. JENKINS Rhea vs. Allstate PAGE 5 DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S ORIGINAL ANSWER Our File Number: 053 l 160653.]