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FILED
8/14/2020 11:23AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY
CAUSE NO. DC-20-07324
GLENDON RHEA, IN THE DISTRICT COURT
Plaintiff,
V.
95TH JUDICIAL DISTRICT
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
DALLAS COUNTY, TEXAS
DEFENDANT'S FIRST AMENDED ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
hereinafter referred to as Defendant, and files this First Amended Answer, respectfully showing
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 agrees that Plaintiff has a right t0 pursue a claim for first-party benefits under the
UM/UHVI policy 0f Defendant through this lawsuit, but Defendant 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 specially excepts t0 the language in Plaintiff’s petition referencing Ch. 37 0f the Texas
Civil Practice and Remedies Code and any claim for a declaratory judgment and requests that
Plaintiff replead her petition eliminating these references.
B. ANSWER
2. Defendant admits that it issued an automobile policy 0f insurance t0 Plaintiff.
Rhea vs. Allstate PAGE 1
DEFENDANT'S FIRST AMENDED ANSWER
Our File Number: 0531 160653.1
3. Defendant would show that it intends t0 comply with the terms and conditions of
the policy sued on and agrees to pay t0 Plaintiff those monies Which the Plaintiff may be entitled
to recover as damages as determined by the Court and Jury. This Defendant specifically does not
agree to waive any right it has under the policy of insurance sued on herein and insists on itsrights
as contained in said policy, including the definitions, conditions and exclusions contained therein.
4. Defendant specifically pleads, as an affirmative defense pursuant to rule 94 TRCP,
the Limitation of itsLiability as stated in the "Limit of Liability" clause contained in the policy
sued 0n. Defendant says its liability is limited t0 the amount ofuninsured / underinsured coverage
purchased by the insured and reduced by any applicable reduction clauses 0r pro—rata clauses
contained in said policy.
5. Subject t0 the admission made above, Defendant asserts a general denial, as
authorized by the Texas Rules of Civil Procedure, and respectfully requests the Court and Jury t0
require Plaintiff to prove Plaintiff's claims, charges and allegations by a preponderance of the
evidence, as required by the Constitution and laws of the state of Texas.
6. Defendant specifically claims any credit or offset available from payments made
by or 0n behalf 0f any alleged underinsured motorist.
7. Further, Defendant would show by way of 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 to Which Plaintiff is legally entitled to recover from the
owner or operator of an uninsured 0r underinsured motor vehicle, as required by the contract of
insurance between Plaintiff and Defendant. Until such time, Defendant isunder n0 duty t0 pay
benefits to the Plaintiff. Sikes V. Zuloaga, 830 S.W.2d 752 (TeX.App.--Austin, 1992).
Rhea vs. Allstate PAGE 2
DEFENDANT'S FIRST AMENDED ANSWER
Our File Number: 053 1 160653.1
8. Additionally, t0 the extent that Plaintiff” s medical specials exceed the amount
actually paid 0n Plaintiff’s behalf, Defendant asserts the statutory defense set forth in Section
41.0105 of the Texas Civil Practice and Remedies Code. Thus, recovery of medical 0r health care
expenses incurred by Plaintiff is limited t0 the amount actually paid or incurred by or on behalf 0f
the Plaintiff.
C. PRIOR CONDITION FOR DAMAGES
9. Further answering, if the same be necessary, and without waiving any of the matters
hereinabove alleged, Defendant would show by way 0f affirmative defense that Plaintiff” s physical
damages complained of, if any, were the result ofprior 0r preexisting injuries, accidents 0r physical
conditions and said prior or pre-existing injuries, accidents or physical conditions were the sole
and/or a contributing cause 0f the Plaintiff’s damages alleged against this Defendant.
D. JURY DEMAND
10. In accordance With Rule 216 of the Texas Rules 0f Civil Procedure, Defendant
demands a trialby jury. A jury fee has already been paid.
WHEREFORE, Defendant prays that Plaintiffs special exception be granted, and that
Plaintiff take nothing by Plaintiffs suit against Defendant, that Defendant be discharged, that
Defendant be awarded itscosts 0f Court, and for all further relief, both general and special, at law
and in equity, to Which Defendant may be entitled.
Rhea vs. Allstate PAGE 3
DEFENDANT'S FIRST AMENDED ANSWER
Our File Number: 053 1 160653.1
Respectfully submitted,
WW
SUSAN L. FLORENCE & ASSOCIATES
YOUNG C. JENKINS
TBN:
1201
24034505
Elm Street, Suite 5050
Dallas, TX 75270
DallasLegal@allstate.com
(214) 659-4346
(877) 678-4763 (fax)
ATTORNEY FOR DEFENDANT
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY
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 0f the Texas Rules of Civil Procedure on August 14, 2020 to:
Camilo Valencia
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
WM
YOUNG C. JENKINS
Rheavs. Allstate PAGE 4
IHTENDANTSFmSTAMENDEDANSWER
Our File Number: 0531 1606511
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Sue Weaver on behalf of Young Jenkins
Bar No. 24034505
Lweae@allstate.com
Envelope ID: 45389565
Status as of 08/14/2020 13:48:42 PM -05:OO
Case Contacts
Name BarNumber Email TimestampSubmitted Status
CAMILO VALENCIA eService@benabbott.com 8/14/2020 11:23:51 AM SENT
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FILED 8/14/2020 11:23AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kevin Molden DEPUTY CAUSE NO. DC-20-07324 GLENDON RHEA, IN THE DISTRICT COURT Plaintiff, V. 95TH JUDICIAL DISTRICT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. DALLAS COUNTY, TEXAS DEFENDANT'S FIRST AMENDED ANSWER TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, hereinafter referred to as Defendant, and files this First Amended Answer, respectfully showing 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 agrees that Plaintiff has a right t0 pursue a claim for first-party benefits under the UM/UHVI policy 0f Defendant through this lawsuit, but Defendant 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 specially excepts t0 the language in Plaintiff’s petition referencing Ch. 37 0f the Texas Civil Practice and Remedies Code and any claim for a declaratory judgment and requests that Plaintiff replead her petition eliminating these references. B. ANSWER 2. Defendant admits that it issued an automobile policy 0f insurance t0 Plaintiff. Rhea vs. Allstate PAGE 1 DEFENDANT'S FIRST AMENDED ANSWER Our File Number: 0531 160653.1 3. Defendant would show that it intends t0 comply with the terms and conditions of the policy sued on and agrees to pay t0 Plaintiff those monies Which the Plaintiff may be entitled to recover as damages as determined by the Court and Jury. This Defendant specifically does not agree to waive any right it has under the policy of insurance sued on herein and insists on itsrights as contained in said policy, including the definitions, conditions and exclusions contained therein. 4. Defendant specifically pleads, as an affirmative defense pursuant to rule 94 TRCP, the Limitation of itsLiability as stated in the "Limit of Liability" clause contained in the policy sued 0n. Defendant says its liability is limited t0 the amount ofuninsured / underinsured coverage purchased by the insured and reduced by any applicable reduction clauses 0r pro—rata clauses contained in said policy. 5. Subject t0 the admission made above, Defendant asserts a general denial, as authorized by the Texas Rules of Civil Procedure, and respectfully requests the Court and Jury t0 require Plaintiff to prove Plaintiff's claims, charges and allegations by a preponderance of the evidence, as required by the Constitution and laws of the state of Texas. 6. Defendant specifically claims any credit or offset available from payments made by or 0n behalf 0f any alleged underinsured motorist. 7. Further, Defendant would show by way of 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 to Which Plaintiff is legally entitled to recover from the owner or operator of an uninsured 0r underinsured motor vehicle, as required by the contract of insurance between Plaintiff and Defendant. Until such time, Defendant isunder n0 duty t0 pay benefits to the Plaintiff. Sikes V. Zuloaga, 830 S.W.2d 752 (TeX.App.--Austin, 1992). Rhea vs. Allstate PAGE 2 DEFENDANT'S FIRST AMENDED ANSWER Our File Number: 053 1 160653.1 8. Additionally, t0 the extent that Plaintiff” s medical specials exceed the amount actually paid 0n Plaintiff’s behalf, Defendant asserts the statutory defense set forth in Section 41.0105 of the Texas Civil Practice and Remedies Code. Thus, recovery of medical 0r health care expenses incurred by Plaintiff is limited t0 the amount actually paid or incurred by or on behalf 0f the Plaintiff. C. PRIOR CONDITION FOR DAMAGES 9. Further answering, if the same be necessary, and without waiving any of the matters hereinabove alleged, Defendant would show by way 0f affirmative defense that Plaintiff” s physical damages complained of, if any, were the result ofprior 0r preexisting injuries, accidents 0r physical conditions and said prior or pre-existing injuries, accidents or physical conditions were the sole and/or a contributing cause 0f the Plaintiff’s damages alleged against this Defendant. D. JURY DEMAND 10. In accordance With Rule 216 of the Texas Rules 0f Civil Procedure, Defendant demands a trialby jury. A jury fee has already been paid. WHEREFORE, Defendant prays that Plaintiffs special exception be granted, and that Plaintiff take nothing by Plaintiffs suit against Defendant, that Defendant be discharged, that Defendant be awarded itscosts 0f Court, and for all further relief, both general and special, at law and in equity, to Which Defendant may be entitled. Rhea vs. Allstate PAGE 3 DEFENDANT'S FIRST AMENDED ANSWER Our File Number: 053 1 160653.1 Respectfully submitted, WW SUSAN L. FLORENCE & ASSOCIATES YOUNG C. JENKINS TBN: 1201 24034505 Elm Street, Suite 5050 Dallas, TX 75270 DallasLegal@allstate.com (214) 659-4346 (877) 678-4763 (fax) ATTORNEY FOR DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY 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 0f the Texas Rules of Civil Procedure on August 14, 2020 to: Camilo Valencia Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 WM YOUNG C. JENKINS Rheavs. Allstate PAGE 4 IHTENDANTSFmSTAMENDEDANSWER Our File Number: 0531 1606511 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Sue Weaver on behalf of Young Jenkins Bar No. 24034505 Lweae@allstate.com Envelope ID: 45389565 Status as of 08/14/2020 13:48:42 PM -05:OO Case Contacts Name BarNumber Email TimestampSubmitted Status CAMILO VALENCIA eService@benabbott.com 8/14/2020 11:23:51 AM SENT