Preview
FILED
10/14/2021 7:48 PM
2 CITS-ESERVE FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Christi Underwood DEPUTY
DC-21-15195
CAUSE NO.
DIVYA TINSMAN; IN THE DISTRICT COURT OF
Plaintiff,
vs. DALLAS COUNTY, TEXAS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; AND 298th
THOMAS COUCH;
Defendants. JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
Plaintiff Divya Tinsman files Plaintiff's Original Petition complaining of
Defendants State Farm Mutual Automobile Insurance Company and Thomas
Couch.
I. DISCOVERY CONTROL PLAN
Discovery is intended to be conducted under Level 3 pursuant to Rule 190
of the TEXAS RULES OF CIVIL PROCEDURE.
Il. RULE 47 PLEADING REQUIREMENTS
As required by Rule 47(b), Texas Rules of Civil Procedure, Plaintiff's
counsel states that the damages sought are in an amount within the
jurisdictional limits of this Court. As required by Rule 47(c), Texas Rules of Civil
Procedure, Plaintiffs counsel states that Plaintiff seeks monetary relief of over
$250,000, but not more than $1,000,000. The amount of monetary relief
actually awarded, however, will ultimately be determined by a jury. Additionally,
Plaintiff seeks non-monetary relief by way of a declaratory judgment. Plaintiff
also seeks pre-judgment and post-judgment interest at the highest legal rate.
PLAINTIFF'S ORIGINAL PETITION — Page 1
Ill. PARTIES
Plaintiff Divya Tinsman is an individual resident of Keller, Tarrant County,
Texas. Her driver's license number is *****132 and her social security number is
+e HH *DAD.
Defendant State Farm Mutual Automobile Insurance Company is an
insurance company licensed to do business in the State of Texas, and said
corporation is engaged in writing insurance in Texas. Defendant State Farm
Mutual Automobile Insurance Company may be served with process by serving
its registered agent, Corporation Service Company, at 211 East 7th Street 620,
Austin, Texas 78701.
Defendant Thomas Couch is an individual resident of McKinney, Collin
County, Texas. Defendant may be served with process at 2805 Stonepointe,
McKinney, Texas 85072.
IV. JURISDICTION AND VENUE
The court has jurisdiction over the cause because the amount in
controversy is within the jurisdictional limits of the court.
This Court has venue over the parties to this action since the incident
complained of herein occurred in Dallas County, Texas. Venue therefore is
proper in Dallas County, Texas pursuant to the TExAs CiviL PRACTICE & REMEDIES
Cope §15.002.
V. FACTS
This is a suit for contractual benefits due to Plaintiff Divya Tinsman as a
result of a motor vehicle collision that occurred on or about Thursday, September
PLAINTIFF'S ORIGINAL PETITION — Page 2
12, 2019, at the intersection of Highway 183 and McArther Boulevard in Irving,
Dallas County, Texas. Plaintiff Divya Tinsman was operating her vehicle on
Highway 183 and was stopped for traffic ahead. An underinsured driver,
Jonathan Hardy was operating his vehicle behind Plaintiffs vehicle in the same
lane and headed in the same direction. Jonathan Hardy failed to slow and/or
stop, colliding hard with the back of Plaintiffs vehicle. As a result of the collision,
Plaintiff was injured and continues to suffer injuries and damages from this
incident.
VI. CAUSES OF ACTION
A. NEGLIGENCE — JONATHAN HARDY
At the time in question, Divya Tinsman was acting in a reasonable and
prudent manner when Jonathan Hardy, an underinsured motorist, committed a
number of acts of negligence during the operation and use of a motor vehicle,
which served as a proximate cause of the motor vehicle collision and injuries
complained of herein. Jonathan Hardy’s acts of negligence were as follows:
1
Jonathan Hardy failed to keep such proper lookout and attention to
the roadway as a person of ordinary prudence would have kept
under the same or similar circumstances;
Jonathan Hardy failed to control the speed of his vehicle;
Jonathan Hardy failed to keep an assured safe distance from
Plaintiff's vehicle;
Jonathan Hardy failed to timely apply the brakes of his vehicle in
order to avoid the collision in question; and
Jonathan Hardy failed to turn his vehicle in an effort to avoid the
collision.
PLAINTIFF'S ORIGINAL PETITION — Page 3
DECLARATORY JUDGMENT ACTION AGAINST DEFENDANT STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND
THOMAS COUCH
Plaintiff asserts that all conditions precedent to the bringing of these
causes of action have been performed or have occurred prior to the filing of the
causes of action at bar.
At all relevant times, Plaintiff was insured under an automobile insurance
policy with Defendant State Farm Mutual Automobile Insurance Company, Policy
No. 4136056-C15-43, which insured Plaintiff in the event she was damaged or
injured by the negligence of an underinsured motorist. Plaintiff has complied with
all the terms and conditions of the policy prior to bringing this action. Plaintiff
would show that at the time of trial of this matter she will offer into evidence a
copy of said policy, unless the original of the same is produced by Defendant
State Farm Mutual Automobile Insurance Company, at said trial. In this regard,
Plaintiff would show that Jonathan Hardy was in fact an underinsured motorist as
defined by law and the policy in question.
Plaintiff presented her claim for underinsured motorist benefits under the
contract of insurance with State Farm Mutual Automobile Insurance Company.
Plaintiff pleads that all conditions precedent to filing suit have been complied
with, including the statutory notice provision.
Plaintiff asserts her claim under Texas Civil Practice and Remedies Code
37.001, et seq. to have their rights, status, and other legal relationships under the
Insurance Policy they purchased from Defendant State Farm Mutual Automobile
Insurance Company established by a court of competent jurisdiction. Plaintiff
PLAINTIFF'S ORIGINAL PETITION — Page 4
seeks a declaration from the Court that:
4
The negligence of Jonathan Hardy in that automobile wreck was
the proximate cause of bodily injuries and damages to Plaintiff, which injuries
include the following:
a Plaintiffs past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;
Plaintiffs future medical expenses;
Plaintiff's lost wages in the past and loss of earning capacity in the
future;
Plaintiffs property damage and loss of use of Plaintiff's vehicle;
Plaintiffs physical pain and suffering in the past and future in an
amount to be determined by the jury;
Plaintiffs mental anguish in the past and future in an amount to be
determined by the jury; and
Plaintiffs physical impairment in the past and future in an amount to
be determined by the jury.
2 Plaintiff's claim for underinsured motorist benefits under Policy
Number 4136056-C15-43, (hereafter the “Insurance Policy”) as a result of a car
wreck that occurred on September 12, 2019, is covered under the Insurance
Policy.
3 Plaintiff also seeks a declaration determining the amount of
underinsured motorist benefits that she is entitled to recover from Defendant
State Farm Mutual Automobile Insurance Company after all applicable set-offs
and credits, for each of the following elements of damages covered under the
Insurance Policy:
PLAINTIFF'S ORIGINAL PETITION — Page 5
Plaintiffs past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;
Plaintiffs future medical expenses;
Plaintiff's lost wages in the past and loss of earning capacity in the
future;
Plaintiffs property damage and loss of use of Plaintiff's vehicle;
Plaintiffs physical pain and suffering in the past and future in an
amount to be determined by the jury;
Plaintiffs mental anguish in the past and future in an amount to be
determined by the jury; and
Plaintiffs physical impairment in the past and future in an amount to
be determined by the jury.
Pursuant to §37.009 of the Texas Civil Practice and Remedies Code,
Plaintiff seeks all costs and reasonable and necessary attorneys’ fees, as are
equitable and just, which are incurred or which may be incurred in this matter
including all such fees and expenses:
a For preparation and trial;
b. For an appeal to the Court of Appeals;
For making or responding to an application for writ of error to the
Supreme Court of Texas; and
If application for writ of error is granted by the Supreme Court of
Texas.
Plaintiff now asks the Court, pursuant to the Texas Declaratory
Judgments Act §37.001 et. seq., for a declaration that her injuries and damages
fall within the coverage of the Insurance Policy issued by Defendant State Farm
Mutual Automobile Insurance Company and for a declaration of their rights to
PLAINTIFF'S ORIGINAL PETITION — Page 6
such benefits and judgment against Defendants State Farm Mutual Automobile
Insurance Company and Thomas Couch.
Vil. DECLARATORY RELIEF
Plaintiff asserts claims under Texas Civil Practice and Remedies Code
37.001, et seq. to have her rights, status, and other legal relationships under the
Insurance Policy she purchased from Defendant State Farm Mutual Automobile
Insurance Company, established by a court of competent jurisdiction. Plaintiff
seeks a declaration from the Court that:
A The negligence of Jonathan Hardy in that automobile wreck was
the proximate cause of bodily injuries and damages to Plaintiff, which injuries
include the following:
d Reasonable and necessary health care expenses incurred in
the past;
Reasonable and necessary health care expenses, which in
all reasonable probability, will be incurred in the future;
Lost wages in the past and loss of earning capacity in the
future;
Property damage and loss of use of Plaintiff's vehicle;
Physical pain and suffering in the past;
Physical pain and suffering which, in all reasonable
probability, will be endured in the future;
Mental anguish suffered in the past;
Mental anguish which, in all reasonable probability, will be
suffered in the future;
Physical impairment suffered in the past; and
PLAINTIFF'S ORIGINAL PETITION — Page 7
10. Physical impairment which, in all reasonable probability, will
be suffered in the future.
B Plaintiff's claim for underinsured motorist benefits under Policy No.
4136056-C15-43, (hereafter the “Insurance Policy”) as a result of a car wreck
that occurred on September 12, 2019, is covered under the Insurance Policy;
Cc Plaintiff also seeks a declaration determining the amount of
underinsured motorist benefits that she is entitled to recover from Defendant
State Farm Mutual Automobile Insurance Company, after all applicable set-offs
and credits, for each of the following elements of damages covered under the
Insurance Policy:
1 Reasonable and necessary health care expenses incurred in
the past;
Reasonable and necessary health care expenses, which in
all reasonable probability, will be incurred in the future;
Lost wages in the past and loss of earning capacity in the
future;
Property damage and loss of use of Plaintiff's vehicle;
Physical pain and suffering in the past;
Physical pain and suffering which, in all reasonable
probability, will be endured in the future;
Mental anguish suffered in the past;
Mental anguish which, in all reasonable probability, will be
suffered in the future;
Physical impairment suffered in the past; and
10 Physical impairment which, in all reasonable probability, will
be suffered in the future.
PLAINTIFF'S ORIGINAL PETITION — Page 8
Pursuant to §37.009 of the Texas Civil Practice and Remedies Code,
Plaintiff seeks all costs and reasonable and necessary attorneys’ fees, as are
equitable and just, which are incurred or which may be incurred in this matter
including all such fees and expenses:
a For preparation and trial;
b For an appeal to the Court of Appeals;
For making or responding to an application for writ of error to
the Supreme Court of Texas; and
If application for writ of error is granted by the Supreme Court
of Texas.
Plaintiff now asks the Court, pursuant to the Texas Declaratory Judgments
Act §37.001 et. seq., for a declaration that her injuries and damages fall within
the coverage of the Insurance Policy issued by Defendant State Farm Mutual
Automobile Insurance Company and for a declaration of her rights to such
benefits and judgment against Defendant.
VIII. CLAIMS HANDLING FACTS
As a result of the collision with underinsured motorist Jonathan Hardy,
Plaintiff was injured and continues to suffer injuries and damages from this
incident. Plaintiff's incurred “Escobedo” medical expenses are over $82,000.00.
(This amount is the “Escobedo — Paid v. Incurred” amount). The at-fault driver
lacked sufficient insurance coverage, and therefore, Plaintiff sought
Underinsured Motorist Benefits from her insurance carrier, State Farm Mutual
Automobile Insurance Company.
PLAINTIFF'S ORIGINAL PETITION — Page 9
On January 13, 2021, Plaintiff sent a package of all documents necessary
to evaluate Plaintiff's claims to Defendant State Farm Mutual Automobile
Insurance Company to Defendant Thomas Couch. To date, Plaintiff has been
advised by Defendant Thomas Couch for Defendant State Farm Mutual
Automobile Insurance Company that they do not believe the claim pierces the
underinsured motorist threshold.
IX. SECTION 541 CLAIMS
The facts giving rise to Plaintiffs claims in this case are not solely those
arising out of the collision itself and her entitlement to benefits under her
insurance policy with State Farm Mutual Automobile Insurance Company, but
also from the adjuster’s actions and violations of Tex. Ins. Code §541.060 et
seq., including these specific violations:
A. VIOLATION OF §541.060 (a)(2): Defendant Thomas Couch is
required by the Texas Insurance Code §541.060 (a)(2) “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 become reasonably clear.”
The liability of Defendant State Farm Mutual Automobile Insurance
Company under the UIM policy is reasonably clear given the liability facts in this
case. What is also clear is that the settlement offer made by Defendant Thomas
Couch on behalf of Defendant State Farm Mutual Automobile Insurance
Company was not a good faith attempt to effectuate a prompt, fair and equitable
settlement of Plaintiff's claims.
PLAINTIFF'S ORIGINAL PETITION — Page 10
B. VIOLATION OF §541.060 (a)(3): Furthermore, the settlement
offer letters authored by Defendant Thomas Couch violated §541.060 (a)(3)
because he did not provide “a reasonable explanation of the basis in the policy,
in relation to the facts or applicable law” for the settlement offer he made. In fact,
Defendant Thomas Couch’s initial letter contained no explanation whatsoever of
the basis in the policy for the settlement offer he made. Rather, Defendant
Thomas Couch never provided any response whatsoever to Plaintiffs requests
for an explanation for the settlement offer he made.
The foregoing violations were committed knowingly by the Defendants.
The foregoing violations were a producing cause of Plaintiff's damages.
c RESPONDEAT SUPERIOR -- At the time of the incident, Defendant
Thomas Couch was in the scope and course of his employment with and
furthering the business of Defendant State Farm Mutual Automobile Insurance
Company. Therefore, based on the doctrine of respondeat superior, Defendant
State Farm Mutual Automobile Insurance Company is liable for the insurance
code violations of its employee, Defendant Thomas Couch.
X. DAMAGES
Plaintiff alleges that as a direct and proximate result of the conduct and
negligent acts and omissions of the underinsured motorist, Plaintiff is entitled to
recover at least the following damages from Defendant State Farm Mutual
Automobile Insurance Company:
a Reasonable and necessary health care expenses incurred in the
past;
PLAINTIFF'S ORIGINAL PETITION — Page 11
Reasonable and necessary health care expenses, which in all
reasonable probability, will be incurred in the future;
Lost wages in the past and loss of earning capacity in the future;
Property damage and loss of use of Plaintiff's vehicle;
Physical pain and suffering in the past;
Physical pain and suffering which, in all reasonable probability, will
be endured in the future;
Mental anguish suffered in the past;
Mental anguish which, in all reasonable probability, will be suffered
in the future;
Physical impairment suffered in the past; and
Physical impairment which, in all reasonable probability, will be
uffered in the future.
XI. ATTORNEYS’ FEES
Because of the conduct of Defendant, Plaintiff has been forced to engage
the services of an attorney to prosecute this action. Plaintiff is entitled to recover
a reasonable sum for the necessary services of the attorneys in the preparation
and trial of this action and for any appeals to the court of appeals or the Texas
Supreme Court. Therefore, an award of reasonable attorneys’ fees is authorized
by §37.009 of the TEXAS CiviL PRACTICE AND REMEDIES CODE.
XIl. INTEREST
Plaintiff is also entitled to pre-judgment and post-judgment interest and
costs of Court as allowed by law.
PLAINTIFF'S ORIGINAL PETITION — Page 12
XIll. U.S. LIFE TABLES
Notice is hereby given to the Defendant that Plaintiff intends to use the
U.S. Life Tables as prepared by the Department of Health and Human Services.
XIV. JURY TRIAL
Plaintiff demands a trial by jury and includes the appropriate jury fees.
XV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that
Defendants be cited to appear and answer herein, and that upon final hearing
thereof, Plaintiff recover judgment against Defendants for:
4
Plaintiffs past medical expenses, which are reasonable and
customary for the medical care received by Plaintiff;
Plaintiffs future medical expenses;
Plaintiff's lost wages in the past and loss of earning capacity in the
future;
Plaintiffs physical pain and suffering in the past and future in an
amount to be determined by the jury;
Plaintiffs mental anguish in the past and future in an amount to be
determined by the jury;
Plaintiffs physical impairment in the past and future in an amount to
be determined by the jury;
Plaintiffs property damage and loss of use of Plaintiff's vehicle;
Interest on the judgment at the legal rate from the date of judgment;
Pre-judgment interest on Plaintiff's damages as allowed by law;
10 All costs of court;
11 Attorneys’ fees; and
PLAINTIFF'S ORIGINAL PETITION — Page 13
12. Such other and further relief to which Plaintiff may be justly entitled
Respectfully submitted,
WITHERITE LAW GROUP, PLLC
BY /s/ Christopher K. Provost
CHRISTOPHER K. PROVOST
State Bar No. 24085759
christopher.provost@witheritelaw.com
SHELLY GRECO
State Bar No. 24008168
shelly.greco@witheritelaw.com
10440 N. Central Expressway
Suite 400
Dallas, TX 75231-2228
214/378-6665
214/378-6670 (fax)
ATTORNEYS FOR PLAINTIFF
PLAINTIFF'S ORIGINAL PETITION — Page 14
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.
Tiffany Florer on behalf of Christopher Provost
Bar No. 24085759
tiffany .florer@witheritelaw.com
Envelope ID: 58211147
Status as of 10/18/2021 9:09 AM CST
Associated Case Party: DIVYA TINSMAN
Name BarNumber | Email TimestampSubmitted | Status
Tiffany Florer tiffany .florer@witheritelaw.com 10/14/2021 7:48:10 PM | SENT
Christopher Provost Christopher.Provost@witheritelaw.com | 10/14/2021 7:48:10 PM | SENT
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FILED 10/14/2021 7:48 PM 2 CITS-ESERVE FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Christi Underwood DEPUTY DC-21-15195 CAUSE NO. DIVYA TINSMAN; IN THE DISTRICT COURT OF Plaintiff, vs. DALLAS COUNTY, TEXAS STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; AND 298th THOMAS COUCH; Defendants. JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITION Plaintiff Divya Tinsman files Plaintiff's Original Petition complaining of Defendants State Farm Mutual Automobile Insurance Company and Thomas Couch. I. DISCOVERY CONTROL PLAN Discovery is intended to be conducted under Level 3 pursuant to Rule 190 of the TEXAS RULES OF CIVIL PROCEDURE. Il. RULE 47 PLEADING REQUIREMENTS As required by Rule 47(b), Texas Rules of Civil Procedure, Plaintiff's counsel states that the damages sought are in an amount within the jurisdictional limits of this Court. As required by Rule 47(c), Texas Rules of Civil Procedure, Plaintiffs counsel states that Plaintiff seeks monetary relief of over $250,000, but not more than $1,000,000. The amount of monetary relief actually awarded, however, will ultimately be determined by a jury. Additionally, Plaintiff seeks non-monetary relief by way of a declaratory judgment. Plaintiff also seeks pre-judgment and post-judgment interest at the highest legal rate. PLAINTIFF'S ORIGINAL PETITION — Page 1 Ill. PARTIES Plaintiff Divya Tinsman is an individual resident of Keller, Tarrant County, Texas. Her driver's license number is *****132 and her social security number is +e HH *DAD. Defendant State Farm Mutual Automobile Insurance Company is an insurance company licensed to do business in the State of Texas, and said corporation is engaged in writing insurance in Texas. Defendant State Farm Mutual Automobile Insurance Company may be served with process by serving its registered agent, Corporation Service Company, at 211 East 7th Street 620, Austin, Texas 78701. Defendant Thomas Couch is an individual resident of McKinney, Collin County, Texas. Defendant may be served with process at 2805 Stonepointe, McKinney, Texas 85072. IV. JURISDICTION AND VENUE The court has jurisdiction over the cause because the amount in controversy is within the jurisdictional limits of the court. This Court has venue over the parties to this action since the incident complained of herein occurred in Dallas County, Texas. Venue therefore is proper in Dallas County, Texas pursuant to the TExAs CiviL PRACTICE & REMEDIES Cope §15.002. V. FACTS This is a suit for contractual benefits due to Plaintiff Divya Tinsman as a result of a motor vehicle collision that occurred on or about Thursday, September PLAINTIFF'S ORIGINAL PETITION — Page 2 12, 2019, at the intersection of Highway 183 and McArther Boulevard in Irving, Dallas County, Texas. Plaintiff Divya Tinsman was operating her vehicle on Highway 183 and was stopped for traffic ahead. An underinsured driver, Jonathan Hardy was operating his vehicle behind Plaintiffs vehicle in the same lane and headed in the same direction. Jonathan Hardy failed to slow and/or stop, colliding hard with the back of Plaintiffs vehicle. As a result of the collision, Plaintiff was injured and continues to suffer injuries and damages from this incident. VI. CAUSES OF ACTION A. NEGLIGENCE — JONATHAN HARDY At the time in question, Divya Tinsman was acting in a reasonable and prudent manner when Jonathan Hardy, an underinsured motorist, committed a number of acts of negligence during the operation and use of a motor vehicle, which served as a proximate cause of the motor vehicle collision and injuries complained of herein. Jonathan Hardy’s acts of negligence were as follows: 1 Jonathan Hardy failed to keep such proper lookout and attention to the roadway as a person of ordinary prudence would have kept under the same or similar circumstances; Jonathan Hardy failed to control the speed of his vehicle; Jonathan Hardy failed to keep an assured safe distance from Plaintiff's vehicle; Jonathan Hardy failed to timely apply the brakes of his vehicle in order to avoid the collision in question; and Jonathan Hardy failed to turn his vehicle in an effort to avoid the collision. PLAINTIFF'S ORIGINAL PETITION — Page 3 DECLARATORY JUDGMENT ACTION AGAINST DEFENDANT STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND THOMAS COUCH Plaintiff asserts that all conditions precedent to the bringing of these causes of action have been performed or have occurred prior to the filing of the causes of action at bar. At all relevant times, Plaintiff was insured under an automobile insurance policy with Defendant State Farm Mutual Automobile Insurance Company, Policy No. 4136056-C15-43, which insured Plaintiff in the event she was damaged or injured by the negligence of an underinsured motorist. Plaintiff has complied with all the terms and conditions of the policy prior to bringing this action. Plaintiff would show that at the time of trial of this matter she will offer into evidence a copy of said policy, unless the original of the same is produced by Defendant State Farm Mutual Automobile Insurance Company, at said trial. In this regard, Plaintiff would show that Jonathan Hardy was in fact an underinsured motorist as defined by law and the policy in question. Plaintiff presented her claim for underinsured motorist benefits under the contract of insurance with State Farm Mutual Automobile Insurance Company. Plaintiff pleads that all conditions precedent to filing suit have been complied with, including the statutory notice provision. Plaintiff asserts her claim under Texas Civil Practice and Remedies Code 37.001, et seq. to have their rights, status, and other legal relationships under the Insurance Policy they purchased from Defendant State Farm Mutual Automobile Insurance Company established by a court of competent jurisdiction. Plaintiff PLAINTIFF'S ORIGINAL PETITION — Page 4 seeks a declaration from the Court that: 4 The negligence of Jonathan Hardy in that automobile wreck was the proximate cause of bodily injuries and damages to Plaintiff, which injuries include the following: a Plaintiffs past medical expenses, which are reasonable and customary for the medical care received by Plaintiff; Plaintiffs future medical expenses; Plaintiff's lost wages in the past and loss of earning capacity in the future; Plaintiffs property damage and loss of use of Plaintiff's vehicle; Plaintiffs physical pain and suffering in the past and future in an amount to be determined by the jury; Plaintiffs mental anguish in the past and future in an amount to be determined by the jury; and Plaintiffs physical impairment in the past and future in an amount to be determined by the jury. 2 Plaintiff's claim for underinsured motorist benefits under Policy Number 4136056-C15-43, (hereafter the “Insurance Policy”) as a result of a car wreck that occurred on September 12, 2019, is covered under the Insurance Policy. 3 Plaintiff also seeks a declaration determining the amount of underinsured motorist benefits that she is entitled to recover from Defendant State Farm Mutual Automobile Insurance Company after all applicable set-offs and credits, for each of the following elements of damages covered under the Insurance Policy: PLAINTIFF'S ORIGINAL PETITION — Page 5 Plaintiffs past medical expenses, which are reasonable and customary for the medical care received by Plaintiff; Plaintiffs future medical expenses; Plaintiff's lost wages in the past and loss of earning capacity in the future; Plaintiffs property damage and loss of use of Plaintiff's vehicle; Plaintiffs physical pain and suffering in the past and future in an amount to be determined by the jury; Plaintiffs mental anguish in the past and future in an amount to be determined by the jury; and Plaintiffs physical impairment in the past and future in an amount to be determined by the jury. Pursuant to §37.009 of the Texas Civil Practice and Remedies Code, Plaintiff seeks all costs and reasonable and necessary attorneys’ fees, as are equitable and just, which are incurred or which may be incurred in this matter including all such fees and expenses: a For preparation and trial; b. For an appeal to the Court of Appeals; For making or responding to an application for writ of error to the Supreme Court of Texas; and If application for writ of error is granted by the Supreme Court of Texas. Plaintiff now asks the Court, pursuant to the Texas Declaratory Judgments Act §37.001 et. seq., for a declaration that her injuries and damages fall within the coverage of the Insurance Policy issued by Defendant State Farm Mutual Automobile Insurance Company and for a declaration of their rights to PLAINTIFF'S ORIGINAL PETITION — Page 6 such benefits and judgment against Defendants State Farm Mutual Automobile Insurance Company and Thomas Couch. Vil. DECLARATORY RELIEF Plaintiff asserts claims under Texas Civil Practice and Remedies Code 37.001, et seq. to have her rights, status, and other legal relationships under the Insurance Policy she purchased from Defendant State Farm Mutual Automobile Insurance Company, established by a court of competent jurisdiction. Plaintiff seeks a declaration from the Court that: A The negligence of Jonathan Hardy in that automobile wreck was the proximate cause of bodily injuries and damages to Plaintiff, which injuries include the following: d Reasonable and necessary health care expenses incurred in the past; Reasonable and necessary health care expenses, which in all reasonable probability, will be incurred in the future; Lost wages in the past and loss of earning capacity in the future; Property damage and loss of use of Plaintiff's vehicle; Physical pain and suffering in the past; Physical pain and suffering which, in all reasonable probability, will be endured in the future; Mental anguish suffered in the past; Mental anguish which, in all reasonable probability, will be suffered in the future; Physical impairment suffered in the past; and PLAINTIFF'S ORIGINAL PETITION — Page 7 10. Physical impairment which, in all reasonable probability, will be suffered in the future. B Plaintiff's claim for underinsured motorist benefits under Policy No. 4136056-C15-43, (hereafter the “Insurance Policy”) as a result of a car wreck that occurred on September 12, 2019, is covered under the Insurance Policy; Cc Plaintiff also seeks a declaration determining the amount of underinsured motorist benefits that she is entitled to recover from Defendant State Farm Mutual Automobile Insurance Company, after all applicable set-offs and credits, for each of the following elements of damages covered under the Insurance Policy: 1 Reasonable and necessary health care expenses incurred in the past; Reasonable and necessary health care expenses, which in all reasonable probability, will be incurred in the future; Lost wages in the past and loss of earning capacity in the future; Property damage and loss of use of Plaintiff's vehicle; Physical pain and suffering in the past; Physical pain and suffering which, in all reasonable probability, will be endured in the future; Mental anguish suffered in the past; Mental anguish which, in all reasonable probability, will be suffered in the future; Physical impairment suffered in the past; and 10 Physical impairment which, in all reasonable probability, will be suffered in the future. PLAINTIFF'S ORIGINAL PETITION — Page 8 Pursuant to §37.009 of the Texas Civil Practice and Remedies Code, Plaintiff seeks all costs and reasonable and necessary attorneys’ fees, as are equitable and just, which are incurred or which may be incurred in this matter including all such fees and expenses: a For preparation and trial; b For an appeal to the Court of Appeals; For making or responding to an application for writ of error to the Supreme Court of Texas; and If application for writ of error is granted by the Supreme Court of Texas. Plaintiff now asks the Court, pursuant to the Texas Declaratory Judgments Act §37.001 et. seq., for a declaration that her injuries and damages fall within the coverage of the Insurance Policy issued by Defendant State Farm Mutual Automobile Insurance Company and for a declaration of her rights to such benefits and judgment against Defendant. VIII. CLAIMS HANDLING FACTS As a result of the collision with underinsured motorist Jonathan Hardy, Plaintiff was injured and continues to suffer injuries and damages from this incident. Plaintiff's incurred “Escobedo” medical expenses are over $82,000.00. (This amount is the “Escobedo — Paid v. Incurred” amount). The at-fault driver lacked sufficient insurance coverage, and therefore, Plaintiff sought Underinsured Motorist Benefits from her insurance carrier, State Farm Mutual Automobile Insurance Company. PLAINTIFF'S ORIGINAL PETITION — Page 9 On January 13, 2021, Plaintiff sent a package of all documents necessary to evaluate Plaintiff's claims to Defendant State Farm Mutual Automobile Insurance Company to Defendant Thomas Couch. To date, Plaintiff has been advised by Defendant Thomas Couch for Defendant State Farm Mutual Automobile Insurance Company that they do not believe the claim pierces the underinsured motorist threshold. IX. SECTION 541 CLAIMS The facts giving rise to Plaintiffs claims in this case are not solely those arising out of the collision itself and her entitlement to benefits under her insurance policy with State Farm Mutual Automobile Insurance Company, but also from the adjuster’s actions and violations of Tex. Ins. Code §541.060 et seq., including these specific violations: A. VIOLATION OF §541.060 (a)(2): Defendant Thomas Couch is required by the Texas Insurance Code §541.060 (a)(2) “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 become reasonably clear.” The liability of Defendant State Farm Mutual Automobile Insurance Company under the UIM policy is reasonably clear given the liability facts in this case. What is also clear is that the settlement offer made by Defendant Thomas Couch on behalf of Defendant State Farm Mutual Automobile Insurance Company was not a good faith attempt to effectuate a prompt, fair and equitable settlement of Plaintiff's claims. PLAINTIFF'S ORIGINAL PETITION — Page 10 B. VIOLATION OF §541.060 (a)(3): Furthermore, the settlement offer letters authored by Defendant Thomas Couch violated §541.060 (a)(3) because he did not provide “a reasonable explanation of the basis in the policy, in relation to the facts or applicable law” for the settlement offer he made. In fact, Defendant Thomas Couch’s initial letter contained no explanation whatsoever of the basis in the policy for the settlement offer he made. Rather, Defendant Thomas Couch never provided any response whatsoever to Plaintiffs requests for an explanation for the settlement offer he made. The foregoing violations were committed knowingly by the Defendants. The foregoing violations were a producing cause of Plaintiff's damages. c RESPONDEAT SUPERIOR -- At the time of the incident, Defendant Thomas Couch was in the scope and course of his employment with and furthering the business of Defendant State Farm Mutual Automobile Insurance Company. Therefore, based on the doctrine of respondeat superior, Defendant State Farm Mutual Automobile Insurance Company is liable for the insurance code violations of its employee, Defendant Thomas Couch. X. DAMAGES Plaintiff alleges that as a direct and proximate result of the conduct and negligent acts and omissions of the underinsured motorist, Plaintiff is entitled to recover at least the following damages from Defendant State Farm Mutual Automobile Insurance Company: a Reasonable and necessary health care expenses incurred in the past; PLAINTIFF'S ORIGINAL PETITION — Page 11 Reasonable and necessary health care expenses, which in all reasonable probability, will be incurred in the future; Lost wages in the past and loss of earning capacity in the future; Property damage and loss of use of Plaintiff's vehicle; Physical pain and suffering in the past; Physical pain and suffering which, in all reasonable probability, will be endured in the future; Mental anguish suffered in the past; Mental anguish which, in all reasonable probability, will be suffered in the future; Physical impairment suffered in the past; and Physical impairment which, in all reasonable probability, will be uffered in the future. XI. ATTORNEYS’ FEES Because of the conduct of Defendant, Plaintiff has been forced to engage the services of an attorney to prosecute this action. Plaintiff is entitled to recover a reasonable sum for the necessary services of the attorneys in the preparation and trial of this action and for any appeals to the court of appeals or the Texas Supreme Court. Therefore, an award of reasonable attorneys’ fees is authorized by §37.009 of the TEXAS CiviL PRACTICE AND REMEDIES CODE. XIl. INTEREST Plaintiff is also entitled to pre-judgment and post-judgment interest and costs of Court as allowed by law. PLAINTIFF'S ORIGINAL PETITION — Page 12 XIll. U.S. LIFE TABLES Notice is hereby given to the Defendant that Plaintiff intends to use the U.S. Life Tables as prepared by the Department of Health and Human Services. XIV. JURY TRIAL Plaintiff demands a trial by jury and includes the appropriate jury fees. XV. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants be cited to appear and answer herein, and that upon final hearing thereof, Plaintiff recover judgment against Defendants for: 4 Plaintiffs past medical expenses, which are reasonable and customary for the medical care received by Plaintiff; Plaintiffs future medical expenses; Plaintiff's lost wages in the past and loss of earning capacity in the future; Plaintiffs physical pain and suffering in the past and future in an amount to be determined by the jury; Plaintiffs mental anguish in the past and future in an amount to be determined by the jury; Plaintiffs physical impairment in the past and future in an amount to be determined by the jury; Plaintiffs property damage and loss of use of Plaintiff's vehicle; Interest on the judgment at the legal rate from the date of judgment; Pre-judgment interest on Plaintiff's damages as allowed by law; 10 All costs of court; 11 Attorneys’ fees; and PLAINTIFF'S ORIGINAL PETITION — Page 13 12. Such other and further relief to which Plaintiff may be justly entitled Respectfully submitted, WITHERITE LAW GROUP, PLLC BY /s/ Christopher K. Provost CHRISTOPHER K. PROVOST State Bar No. 24085759 christopher.provost@witheritelaw.com SHELLY GRECO State Bar No. 24008168 shelly.greco@witheritelaw.com 10440 N. Central Expressway Suite 400 Dallas, TX 75231-2228 214/378-6665 214/378-6670 (fax) ATTORNEYS FOR PLAINTIFF PLAINTIFF'S ORIGINAL PETITION — Page 14 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. Tiffany Florer on behalf of Christopher Provost Bar No. 24085759 tiffany .florer@witheritelaw.com Envelope ID: 58211147 Status as of 10/18/2021 9:09 AM CST Associated Case Party: DIVYA TINSMAN Name BarNumber | Email TimestampSubmitted | Status Tiffany Florer tiffany .florer@witheritelaw.com 10/14/2021 7:48:10 PM | SENT Christopher Provost Christopher.Provost@witheritelaw.com | 10/14/2021 7:48:10 PM | SENT