Preview
FILED
DALLAS COUNTY
8/7/2015 11:03:36 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-03654
SALVADOR ROBLEDO, JACQUELYN § IN THE DISTRICT COURT OF
ROBLEDO ON BEHALF OF JESSE §
ROBLEDO, VERONICA ROBLEDO, §
JACK JAYNES AND CLAUDIA JAYNES, §
Plaintiffs, §
§
V. § DALLAS COUNTY, TEXAS
§
NATIONWIDE INSURANCE dba §
COLONIAL COUNTY MUTUAL §
INSURANCE, §
Defendants. § 162ND JUDICIAL DISTRICT
DEFENDANT’S BRIEF ADDRESSING OFFSET FOR PERSONAL
INJURY PROTECTION BENEFITS
Defendant Colonial County Mutual Insurance Company (“Colonial”), incorrectly named
as Nationwide Insurance d/b/a Colonial County Mutual Insurance, files this Brief Addressing
Offset for Personal Injury Protection Benefits, and would show the Court the following:
I. Summary
On August 3, 2014, the parties mediated this case with mediator Courtney Perez. The
parties were largely able to reach an agreement to resolve this case. However, the parties
disagreed on one issue which they agreed to brief to the Court in order for the Court to make a
determination on this issue. The parties seek a ruling on whether the Personal Injury Protection
(“PIP”) payments previously made to Plaintiffs should be credited/offset from the amount of the
Medical Payments benefit amounts that were agreed upon at mediation.
II. Background
On January 1, 2009, Colonial paid Robledo, Veronica Jaynes and the three minor
children PIP benefits each in the amount of $2,511. The Colonial insurance policy also offers
Medical Payments coverage (“MedPay”) with individual limits of $10,011, but Plaintiffs made
COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 1
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no claim for MedPay benefits prior to suit being filed, nor have they asserted a claim for Medpay
benefits in their live Petition. However, at mediation, the parties reached an agreement on the
payment of MedPay benefits to all five Plaintiffs.
The parties disagree whether the prior PIP payments on behalf of minor children Claudia
Jaynes and Jack Jaynes would offset the MedPay policy benefits amounts agreed to at the
mediation for Claudia Jaynes and Jack Jaynes. In other words, Colonial agreed to pay a sum
certain on behalf of Claudia Jaynes and Jack Jaynes for MedPay benefits at mediation, but
contends the sum it has agreed to pay on behalf of Claudia Jaynes and Jack Jaynes for Medpay
benefits is based upon the amount of medical bills incurred for each child minus an offset of
$2,511 for each child due to the PIP payments previously made on behalf of Claudia and Jack
Jaynes. Colonial asserts the policy and Texas law are clear on this point – Colonial is entitled to
the offsets.
III. Argument & Analysis
Plaintiffs are attempting to obtain what is in effect a double recovery. The PIP benefits
paid to each plaintiff on January 1, 2009 were for expenses incurred for medical payments. Now,
Plaintiffs attempt to recover again for the same expenses. Neither the insurance policy nor Texas
law allow for such a double recovery. The MedPay section of the Colonial policy provides:
If there is other applicable auto medical payments insurance, we will pay only our
share of the loss. Our share is the proportion that our limit of liability bears to the
total applicable limits.
See Exhibit A: Colonial Policy No. 78 42 A 673423, Medical Payments coverage section, at M4.
The Texas Insurance Code defines Personal Injury Protection as
“Personal injury protection” consists of provisions of an automobile liability
insurance policy that provide for payment to the named insured in the policy,
members of the insured's household, and any authorized operator or passenger of
the named insured's motor vehicle, including a guest occupant, of all reasonable
COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 2
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expenses that:
(1) arise from an accident;
(2) are incurred not later than the third anniversary of the date of the
accident; and
(3) are for:
(A) necessary medical, surgical, x-ray, or dental services,
including prosthetic devices, and necessary ambulance,
hospital, professional nursing, or funeral services;
(B) in the case of an income producer, replacement of income
lost as the result of the accident; or
(C) in the case of a person injured in the accident who was not
an income or wage producer at the time of the accident,
reimbursement of necessary and reasonable expenses
incurred for essential services ordinarily performed by the
injured person for care and maintenance of the family or
family household.
Tex. Ins. Code § 1952.151 (emphasis added).
As the statute indicates, PIP coverage encompasses benefits for medical expenses. Thus,
the PIP coverage is “other applicable auto medical payments insurance”. See In Dabney v. Home
Insurance Company, 643 S.W.2d 386 (Tex. 1982) (court stated that PIP coverage is comparable
to medical payments coverage in that both are no-fault and pay for similar expenses). As such,
the MedPay policy provision bars a double recovery.
The Texas Supreme Court has held that only where covered damages do not overlap with
PIP-covered damages there is no corresponding PIP credit. Mid-Century Ins. Co. of Texas v.
Kidd, 997 S.W.2d 265, 271 (Tex. 1999). The court reasoned that auto policy offset provisions
prevent insureds from aggregating policy subsections to recover in excess of actual damages. Id.
at 272. The Court declared: “recovery of PIP benefits is limited to the actual loss sustained and
there may be no double recovery even when two different policies provide the same coverage.”
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Id.; see also United Services Auto. Ass'n v. DiCarlo, 670 S.W.2d 756, 758 (Tex. App.—El Paso
1984, writ refused NRE) (“recovery of PIP benefits is limited to the actual loss sustained and
there may be no double recovery”); Creighton v. Fidelity & Casualty Company of New York, 581
S.W.2d 815 (Tex.Civ.App.—Fort Worth 1979, no writ) (“[I]nsofar as PIP coverage is involved,
no matter the number of policies—the benefits payable because of PIP coverage, whether by
multiple policies or not, could not in the aggregate exceed the actual loss sustained.”).
Here, the insured did not request and paid no premium for PIP coverage and this
coverage was forced under Tex. Ins. Code § 1952.152 because there were no signed PIP
rejection forms. Colonial paid out the statutory limits for PIP toward medical expenses. Jack
Jaynes and Claudia Jaynes have medical expenses below the MedPay limits. Thus, PIP amounts
paid should be credited. This is not a case where their damages are in excess of the MedPay
limits, in which PIP amounts paid would go toward that excess. The PIP offsets will in no way
prohibit Jack Jaynes and Claudia Jaynes from being fully compensated for their actual damages,
but merely prevent recovery in excess of the actual damages. As such, the PIP payments should
be offset against the MedPay amounts the parties agreed to at mediation.
IV. Prayer
For these reasons, Colonial prays that this Court finds the requested offsets should be
allowed and other such further relief, both general and special, to which Colonial may be justly
entitled.
COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 4
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Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
/s/ Russell Dennis
Russell L. Dennis
State Bar No. 24036470
Chris Gabriel
State Bar No. 24074237
THOMPSON, COE, COUSINS & IRONS,
L.L.P.
Plaza of the Americas
700 N. Pearl Street, Twenty-Fifth Floor
Dallas, Texas 75201-2832
Telephone: (214) 871-8267
Facsimile: (214) 871-8209
E-Mail: rdennis@thompsoncoe.com
E-Mail: cgabriel@thompsoncoe.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I certify that on August 7, 2015, a true and correct copy of the foregoing was served per
the Texas Rules of Civil Procedure to:
David Trosman
Law Offices of Domingo Garcia
400 Zang Blvd., 6th Floor
Suite 600
Dallas, TX 75208
/s/ Russell Dennis
Russell L. Dennis
COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 5
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Certification
I, Brett Sutton, as a duly authorized Nationwide Insurance associate
entrusted with oversight of the system of record from which this copy was
produced, based upon information and belief, certify under the penalty of
perjury that this attached copy of policy 78 42 A 673423 was made at or
near the time of certification, as part of regularly conducted business
activities, and is a true and accurate copy of the official record kept as part
of regular business activities.
Date: August 28, 2013
Signature
Brett Sutton
Print Name
Processor, Imaging
Title
EXHIBIT A PAGE 1
Colonial County Mutual Insurance Company
NATIONWIDE AUTO POLICY
DECLARATIONS
bBBSd Page 01 of 02
Your policy provides the coverages and limits shown on the Schedule of coverages.
They apply toeach
insured vehicle as indicated.
The vehicle(s) described
in this policy is principally garaged at the
mailing
address shown below unless otherwise stated.
These declarations supersede any such form issued earlier.
PolicyNumber: Policyholder:
78 42 A 673423 (Named Insured)
ALEXANDRIA ATENCIO
Issued: 3600 POTEET DR 324
MESQUITE, TX
OCT 09, 2008 75150-7652
Policy Period From:
OCT 07, 2008 to JAN21, 2009 12:01 a.m. standard time at the address of the named insured as stated
herein,
IMPORTANT M E S S A G E S :
THE FOLLOWING CHANGE(S) HAVE BEEN MADE TO YOUR POLICY:
EFFECTIVE OCT 07, 2008
-REMOVED DRIVER
WE AGREE TO MAKE AVAILABLE TO YOU AN INSTALLMENT PAYMENT PLAN AS
DESCRIBED IN RULE 14 OF THE TEXAS AUTOMOBILE RULES AND RATING MANUAL,
EXCEPT WHEN AN INSTALLMENT PAYMENT PLAN IS PROHIBITED BY OTHER RULE OR
BY STATUTE.
INSURED VEHICLE(S) & S C H E D U L E OF C O V E R A G E S
1. 2005 TOYO RAV4 BAS ID #JTEGD20V950067046
Six Month
Coverages Limits Of Liability Premium
A LIABILITY
BODILY INJURY LIABILITY $ 25,011 EACH PERSON
| 50,011 EACH ACCIDENT 105.00
PROPERTY DAMAGE LIABILITY I 25,011 EACH ACCIDENT 127.30
B1 MEDICAL PAYMENTS $ 10,011 EACH PERSON 28.80
C UNINSURED AND UNDERINSURED
MOTORISTS -BODILY INJURY & 25,011 EACH PERSON
I 50,011 EACH ACCIDENT $ 23.60
-PROPERTY DAMAGE $ 25,011 EACH ACCIDENT
LESS $ 250 24.40
D DAMAGE TO YOUR AUTO ACTUAL CASH VALUE LESS $ 245 73.70
OTHER THAN COLLISION
(COMPREHENSIVE)
$ 1,500 IN CUSTOMIZATION
COLLISION AND $ 1,500 ACTUAL CASH VALUE LESS $ 495 211.60
IN CUSTOMIZATION
RENTAL REIMBURSEMENT $ 30 PER DAY 18.00
$ 900 PER ACCIDENT
TOWING AND LABOR $ 120 EACH DISABLEMENT 2.60
AUTOMOBILE THEFT PREVENTION AUTHORITY FEE .50
TOTAL $ 615.50
VEHICLE ENDORSEMENTS 3356
LOSS PAYEE-TEXAS CREDIT UNION LIEN EXPIRES ON AUG 15, 2012
V-1510
EXHIBIT A PAGE 2
Page 02 of 02
2. 1993 CHEV PICKUP1S ID #2GCEC19Z2P1185672
Six Month
Coverages Limits Of Liability Premium
A LIABILITY
BODILY INJURY LIABILITY | 25,01 1EACH PERSON
50,011 EACH ACCIDENT 87.40
PROPERTY DAMAGE LIABILITY $ 25,011 EACH ACCIDENT 113.00
B1 MEDICAL PAYMENTS $ 10,011 EACH PERSON 33.1 0
C UNINSURED AND UNDERINSURED
MOTORISTS -BODILY INJURY $ 25,011 EACH PERSON
$ 50,011 EACH ACCIDENT 23.30
25,011 EACH ACCIDENT
-PROPERTY DAMAGE $ LESS $ 250 24.70
.50
AUTOMOBILE THEFT PREVENTION AUTHORITY FEE TOTAL 282.00
GARAGED AT 11437 WOOD MEADOW PARKWAY
APT 225 DALLAS, TX 75228
INSURED DRIVERS:
Driver Birth Marital
# Name Date Status
01 ALEXANDRI ATENCIO 01/28/81 SINGLE
02 SALVADOR ROBLEDO 03/22/40 MARRIED
APPLIED DISCOUNTS:
PASSIVE RESTRAINT ACCIDENT FREE MULTI CAR NEW VEHICLE
Policy Form & Endorsements: AUTO 0042 3374
Office Use:JUL 24, 2008 TERR: 314 $ 21.30
Issued By: COLONIAL COUNTY MUTUAL INSURANCE COMPANY Home Office - Austin, Texas
Service Center: 11603
WEST COKER LOOP, SAN ANTONIO, TX 78216
Insurance Agent: NATIONWIDE SA
IMPORTANT PHONE NUMBERS
Nationwide 24-Hour C l a i m s Number:
1-800-421-3535
For Q U E S T I O N S About Your Policy, C a l l Your NATIONWIDE A G E N T :
NATIONWIDE S A L E S S O L U T I O N
877-669-6877
For Hearing Impaired: TTY 1-800-622-2421
Nationwide Regional Office: 800-526-3765
EXHIBIT A PAGE 3
POLICY MASTER RECORD PRINTOUT
10/05/09
09 A-CANCELLED PAGE 01 OF 06
RO ST PREPOLNDM
LAST NAMEREASON; HISTORICAL MRPO - MONTH END
78 42 A 673423 ATENCIOMRPO TYPE: 01
SP AP MiCr-LOC CNTY TERR TOWN CL
MKT-GRP TAX CD
TAX-PRCT/CHRG-PRM FIRE-DIST
1 1 057 314
BIND DATE/TIME 07-23-2008 01:13 PC
ADDRESS ORIGIN - CUSTOMER
AGENT3 0122
NATIONWIDE SALE
TEL 877 669 6877
ACTIVE SSR
FULL-COMM
AOA INSTALL DATE
12/11/01
ALEXANDRIA ATENCIO
3600 POTEET DR 324 CUSTOMER NUMBER R760090S352
MESQUITE, TX MEDIA 00170000
75150-7652
POLICY BASIC DATA
* * * * * * * * * * * * * * *
REN-DTNEXT-REN
OSU-EFFGUAR-REN
ANNL-ANNIV
COSPL-GRP TERM TERM-NUM
01/21/09
07/21/09
07/21/07 07/21/09
CNTY SA 004
TIERFOT- JACKET FULL-TERM CR
FRE IDFRCENGISS-NUM/SFX PREM WRTN-PREM IND
N 00042 992.70 0.50
RECVD LAST CENG FACILITY
FAC TO D DR
IN OFFICE
E F F DATE
PRODUCT
NON-REN
RESL-MKT
PRIOR/CURR VOL FL HRV PRCT
07/23/07
01/21/09 AUTO 05
CESS DATE AQD M+RENPLINDNMDED-REW
POI
000 777 SS 0 000 0000
DECS03/30/09 12/22/08 12/19/08 10/09/08 07/24/08 06/19/08 12/19/07 09/11/07
VEE REV-TYPE/DATE VEH REV-TYPE/DATE VEH REV-TYPE/DATE
P QUEST05/22/10 P MVR 06/01/09 P CBR OS/17/09
MULTILNG TMOTHERTORT PURCHAS LIFE-DISCOUNT
#MCD
DISC DISC DISC FLAG FLAG VA TRAN HE ELIG
D.D0 0.0D 0. 00 N N N N 001
MISC BI-LT INELIG LIAB RTD MATRIXHHC CTR TPC TPC
FEES THRESRISK SURLIM CD
THR CODE#D BYSIG CODE TERMS
0.00 02 81 001 9
DEC-EFF ACC FORG
ASSOC
DATE RECOUP FHCFELIG DATE
DISC
01/21/09 0.00 0.0001/21/09N
ACC-FORG
ACC-FORGMIN-FORG
MIN-FORG
DED-REWD DED-REWD
TLOSS-WVR
PURCH DATE PURCH DATE PURCH DATE PURCH
Y 01/21/2009Y 01/21/2009N 12/31/3500
TOT FILED STBL NEW STBL OLD
TOT POL
CAPCAP CAP MHO
PREM PREM PREM CAP FLGFCTRIND FLG
0.00 0.00 0.00 0.00 0.000
EXHIBIT A PAGE 4
Table Of Contents
Page
INSURING AGREEMENT D1
DEFINITIONS D1
INSURED PERSONS' DUTIES AFTER AN ACCIDENT OR LOSS D2
TERRITORY D3
COVERAGES:
Physical Damage P1-P6
^ (damage to your auto)
Comprehensive
Collision
Towing and Labor
S P|
•1
10
Auto Liability
(for damage or injury to others caused by your auto)
Property Damage and Bodily Injury
L1-L5
Personal Injury Protection N1-N2
(no-fault motor vehicle insurance)
^
Medical Payments M1-M4
^ (medical expenses payable regardless of fault)
ffipHfl Uninsured Motorists/Underinsured Motorists Coverage U1-U3
GENERAL POLICY CONDITIONS
How Your Policy May Be Changed G1
Optional Payment of Premium in Installments G1
Renewal G1
Cancellation During Policy Period G1
Nonrenewal G2
Automatic Termination G2
Termination Provisions G2
Dividends G2
If You Become Bankrupt G2
Unauthorized Use of Other Motor Vehicles G3
Fraud and Misrepresentation G3
Legal Action Limitations G3
Subrogation G3
Non-Sufficient Funds and Late Payment Charges G4
Special Provisions G4
V-042
EXHIBIT A PAGE 5
Colonial County Mutual Insurance Company
Insuring Agreement
For the policyholder's payment of premiums in amounts we require and subject to all of the terms and
conditions of thispolicy, we agree to provide the coverages the policyholder has selected. These
selections are shown in the enclosed Declarations, which are a part of this policycontract. The
selected coverages in thispolicy apply only to occurrences while the policy isin force. Renewal
premiums for terms of six months each must be paid in advance.
Definitions
This policy uses certain common words for easy reading. They are defined as follows:
1. 'POLICYHOLDER" means the firstperson named in theDeclarations. The policyholder is the
named insured under thispolicy but does not include the policyholder's spouse. Ifthe first
named insured is an organization, that organizationis the policyholder.
2. "YOU" and YOUR" mean:
a) the policyholder and spouse, ifresident of thesame household, when the policyholder is a
person; or
b) the sole proprietoror majority shareholder of an organization, orgeneral partnerof a family
limited partnership, as shown in the Declarations, and spouse, Ifresident of the same
household, when the policyholder is an organization.
3. "RELATIVE" means one who regularly resides in your household and who is related toyou by
blood, marriage, or adoption (includinga ward or fosterchild). A relative may livetemporarily
outside your household, including your spouse, during a period of separation in contemplationof
divorce.
4. 'INSURED" means one who is described as entitled to protection under each coverage.
5. 'WE," "US," "OUR," and "THE COMPANY" mean or refer to the company issuing the
policy-Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company,
Nationwide Property and Casualty Insurance Company, Colonial County Mutual Insurance
Company, Nationwide General Insurance Company, or Nationwide Assurance Company.
6. 'YOUR AUTO" means the vehicle(s) described in the Declarations.
7. "MOTOR VEHICLE" means a land motor vehicle designed primarily to be driven on publicroads.
This does not include vehicles operated on railsor crawler treads. Other motorized vehicles
designed for use mainly offpublic roads shall be included within the definition
of motor vehicle
when used on public roads.
8. "PRIVATE PASSENGER AUTO" means a:
a) four-wheel automobile for private passenger use;
b) four-wheel van; or
c) pick-up truck having either four or six wheels.
9. 'DEDUCTIBLE" means the amount of loss tobe paid by the insured. We pay for covered loss
above the deductible amount shown in the Declarations.
10. "OCCUPYING" means in, upon, entering, or alighting from.
11. "BODILY INJURY" means:
a) physical injury;
b) sickness;
c) disease; or
d) resultant death;
of any person which results directly from a motor vehicle accident.
D1
EXHIBIT A PAGE 6
InsuringAgreement
12. "PROPERTY DAMAGE" means:
a) destruction of tangibleproperty;
b) damage or injury to it; and
c) loss of its use.
13. "FUNGUS" means any type or form of fungus, including mold, mildew, mycotoxins, spores,
scents or by products produced or released by fungi.
14. "BUSINESS DAY" means a day other than a Saturday, Sunday or a holiday recognized by the
state of Texas.
Other words are also defined. All defined words are in bold
print.
Duties After an Accident or Loss
A. We must be notifiedpromptly of how, when and where the accident or loss happened. Notice
should also include the names and addresses of any injuredpersons and of any witnesses. If we
show that your failure toprovide notice prejudices our defense, there is no liability coverage
under
the policy.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim or suit.
2. Promptly send us copies of any notices or legal papers received in connection with the
accident or loss.
3. Submit, as often as we reasonably require, to physical exams by physicians we select.We will
pay for these exams.
4. Authorize us to obtain medical records and other pertinentrecords.
5. When required by us:
a. submit a sworn, signed proof of loss;
b. submit to examination under oath and ifrequested sign the transcriptof theexamination
under oath.
C. Within 15 days after we receive your written notice of claim, we must:
1. acknowledge receipt of the claim.
If our acknowledgement of the claim is not in writing, we will keep a record of the date, method
and content of our acknowledgement.
2. begin any investigation of the claim.
3. specify the information you must provide in accordance with paragraph B. above.
We may request more information, if during the investigationof the claim such additional
information is necessary.
D. After we receive the information we request, we must notify you in writing whether the claim will be
paid or has been denied or whether more information is needed:
1. within 15 business days; or
2. within 30 days if we have reason to believe the loss resulted from arson.
E. If we do not approve payment of your claim or require more time for processing your claim, we
must:
1. give the reasons for denying your claim; or
2. give the reasons we require more time to process your claim. But, we must either approve or
deny your claim within 45 days after our requesting more time.
F. In the event ofa weather-related catastrophe or major natural disaster,as defined by the Texas
Department of Insurance, the claim-handling deadlines as stated above are extended for an
additional 15 days.
D2
EXHIBIT A PAGE 7
Insuring Agreement
G. Loss Payment
1. Ifwe notifyyou that we willpay your claim, or part of your claim, we must pay within 5
business days after we notify you.
2. If payment of your claim or part of your claim requires theperformance of an act by you, we
must pay within 5 business days after the date you perform the act.
H. Notice of Settlement of Liability Claim
1. We will notifyyou in writingof any Initial
offer tocompromise orsettlea claim against you
under the liability section of this
policy.We will give you notice within 10 days after thedate
the offer is made.
2. We will notify you in writing of any
settlement of a claim against you under the liability section
of this policy.
We will give you notice within 30 days after the date of the settlement.
I. An insured seeking Uninsured/Underinsured Motorists Coverage must also:
1. Promptly notify the police if a hit and run
driver is involved;
2. Promptly send us copies of the legal papers if a suit is brought;
3. Take reasonable steps after loss,at our expense, to protect damaged property from further
loss; and
4. Permit us to inspect and appraise the damaged property before its repair or disposal.
J. An insured seeking coverage for damage to your auto must also:
1. Take reasonable steps after loss to
protect your covered auto and its equipment from further
loss. We will pay reasonable expenses incurred to do this;
2. Promptly notify the police if your covered auto is stolen; and
3. Permit us to inspect and appraise the damaged property before its repair or disposal.
Territory
The policy applies inthe United States of America and itsterritories
or possessions, Canada and
Puerto Rico or between their ports. All coverages exceptUninsured Motorists apply to occurrences in
Mexico, if within 25 miles of the United States boundary.
We will pay losses under any Comprehensive
or Collisionloss toyour auto in the United States,not in Mexico. If your automust be repaired In
Mexico in order to be driven, we will not pay more than the actual cash value of such loss at the
nearest United States point where the repairs can be made.
NOTE: You will need to buy auto insurance from a Mexican insurance company-regardless of
coverage provided by thispolicy-before drivingin Mexico. Otherwise, you may be subject to
jail detention, auto impoundment, and other legal complications in case of an accident.
D3
EXHIBIT A PAGE 8
Physical Damage
(damage to your auto)
ADDITIONAL DEFINITIONS APPLICABLE TO THESE COVERAGES
For purposes of these coverages only:
1. "LOSS" means direct, physical and accidentalloss or damage to your auto. Your auto includes
its equipment.
2. "EQUIPMENT" means anything usual and incidental to the use of a motor vehicle as a motor
vehicle. Any type of trailer Is not
equipment.
3. "COLLISION" means the upset, orcollision with another object of your auto. However, loss
caused by the following are not considered collision:
1. Missiles or falling objects; 6. Hail, water or flood;
2. Fire; 7. Malicious mischief or vandalism;
3. Theft or larceny; 8. Riot or civil commotion;
4. Explosion or earthquake; 9. Contact with bird or animal; or
5. Windstorm; 10. Breakage of glass.
If breakage of glass is caused by a collision or if loss is caused
by contact with a bird or animal,
you may elect to have it considered a loss caused by collision.
Coverage Agreements
COMPREHENSIVE COVERAGE
1. We will pay for loss to your auto not caused by collision orupset. We willpay for the loss less
your deductible. Coverage is included for:
a) damage from contact with:
(1) animals; or
(2) falling or flying objects.
b) broken glass:
(1) even if caused by collision or upset; and
(2) if you do not have Collision coverage.
If your Comprehensive and Collision coverages have different deductibles, the smaller
deductible will apply to broken glass.
For damage to your auto's windshield, we may offer to have it repaired in lieu of
replacement.
We will not apply a deductible for the repair of the windshield. However, if the repair
isnot
satisfactory, we will replace the windshield subject to your deductible.
2. Also, if your auto has a loss under this coverage we will:
a) pay forresultingdamage to your clothing and luggage or that of any relative. Maximum
payment is $200. We will pay for stolen clothing or luggage only if your auto is stolen.
b) repay your travel costs after your auto is stolen.Maximum payment is $20 per day -- not to
exceed $600 per occurrence. These costs must be incurred within a certain time.It starts 48
hours after you report the theft to us and the police,
It ends when your auto is returned
Preview
FILED DALLAS COUNTY 8/7/2015 11:03:36 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-13-03654 SALVADOR ROBLEDO, JACQUELYN § IN THE DISTRICT COURT OF ROBLEDO ON BEHALF OF JESSE § ROBLEDO, VERONICA ROBLEDO, § JACK JAYNES AND CLAUDIA JAYNES, § Plaintiffs, § § V. § DALLAS COUNTY, TEXAS § NATIONWIDE INSURANCE dba § COLONIAL COUNTY MUTUAL § INSURANCE, § Defendants. § 162ND JUDICIAL DISTRICT DEFENDANT’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS Defendant Colonial County Mutual Insurance Company (“Colonial”), incorrectly named as Nationwide Insurance d/b/a Colonial County Mutual Insurance, files this Brief Addressing Offset for Personal Injury Protection Benefits, and would show the Court the following: I. Summary On August 3, 2014, the parties mediated this case with mediator Courtney Perez. The parties were largely able to reach an agreement to resolve this case. However, the parties disagreed on one issue which they agreed to brief to the Court in order for the Court to make a determination on this issue. The parties seek a ruling on whether the Personal Injury Protection (“PIP”) payments previously made to Plaintiffs should be credited/offset from the amount of the Medical Payments benefit amounts that were agreed upon at mediation. II. Background On January 1, 2009, Colonial paid Robledo, Veronica Jaynes and the three minor children PIP benefits each in the amount of $2,511. The Colonial insurance policy also offers Medical Payments coverage (“MedPay”) with individual limits of $10,011, but Plaintiffs made COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 1 00121.768 2254758 no claim for MedPay benefits prior to suit being filed, nor have they asserted a claim for Medpay benefits in their live Petition. However, at mediation, the parties reached an agreement on the payment of MedPay benefits to all five Plaintiffs. The parties disagree whether the prior PIP payments on behalf of minor children Claudia Jaynes and Jack Jaynes would offset the MedPay policy benefits amounts agreed to at the mediation for Claudia Jaynes and Jack Jaynes. In other words, Colonial agreed to pay a sum certain on behalf of Claudia Jaynes and Jack Jaynes for MedPay benefits at mediation, but contends the sum it has agreed to pay on behalf of Claudia Jaynes and Jack Jaynes for Medpay benefits is based upon the amount of medical bills incurred for each child minus an offset of $2,511 for each child due to the PIP payments previously made on behalf of Claudia and Jack Jaynes. Colonial asserts the policy and Texas law are clear on this point – Colonial is entitled to the offsets. III. Argument & Analysis Plaintiffs are attempting to obtain what is in effect a double recovery. The PIP benefits paid to each plaintiff on January 1, 2009 were for expenses incurred for medical payments. Now, Plaintiffs attempt to recover again for the same expenses. Neither the insurance policy nor Texas law allow for such a double recovery. The MedPay section of the Colonial policy provides: If there is other applicable auto medical payments insurance, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total applicable limits. See Exhibit A: Colonial Policy No. 78 42 A 673423, Medical Payments coverage section, at M4. The Texas Insurance Code defines Personal Injury Protection as “Personal injury protection” consists of provisions of an automobile liability insurance policy that provide for payment to the named insured in the policy, members of the insured's household, and any authorized operator or passenger of the named insured's motor vehicle, including a guest occupant, of all reasonable COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 2 00121.768 2254758 expenses that: (1) arise from an accident; (2) are incurred not later than the third anniversary of the date of the accident; and (3) are for: (A) necessary medical, surgical, x-ray, or dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing, or funeral services; (B) in the case of an income producer, replacement of income lost as the result of the accident; or (C) in the case of a person injured in the accident who was not an income or wage producer at the time of the accident, reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household. Tex. Ins. Code § 1952.151 (emphasis added). As the statute indicates, PIP coverage encompasses benefits for medical expenses. Thus, the PIP coverage is “other applicable auto medical payments insurance”. See In Dabney v. Home Insurance Company, 643 S.W.2d 386 (Tex. 1982) (court stated that PIP coverage is comparable to medical payments coverage in that both are no-fault and pay for similar expenses). As such, the MedPay policy provision bars a double recovery. The Texas Supreme Court has held that only where covered damages do not overlap with PIP-covered damages there is no corresponding PIP credit. Mid-Century Ins. Co. of Texas v. Kidd, 997 S.W.2d 265, 271 (Tex. 1999). The court reasoned that auto policy offset provisions prevent insureds from aggregating policy subsections to recover in excess of actual damages. Id. at 272. The Court declared: “recovery of PIP benefits is limited to the actual loss sustained and there may be no double recovery even when two different policies provide the same coverage.” COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 3 00121.768 2254758 Id.; see also United Services Auto. Ass'n v. DiCarlo, 670 S.W.2d 756, 758 (Tex. App.—El Paso 1984, writ refused NRE) (“recovery of PIP benefits is limited to the actual loss sustained and there may be no double recovery”); Creighton v. Fidelity & Casualty Company of New York, 581 S.W.2d 815 (Tex.Civ.App.—Fort Worth 1979, no writ) (“[I]nsofar as PIP coverage is involved, no matter the number of policies—the benefits payable because of PIP coverage, whether by multiple policies or not, could not in the aggregate exceed the actual loss sustained.”). Here, the insured did not request and paid no premium for PIP coverage and this coverage was forced under Tex. Ins. Code § 1952.152 because there were no signed PIP rejection forms. Colonial paid out the statutory limits for PIP toward medical expenses. Jack Jaynes and Claudia Jaynes have medical expenses below the MedPay limits. Thus, PIP amounts paid should be credited. This is not a case where their damages are in excess of the MedPay limits, in which PIP amounts paid would go toward that excess. The PIP offsets will in no way prohibit Jack Jaynes and Claudia Jaynes from being fully compensated for their actual damages, but merely prevent recovery in excess of the actual damages. As such, the PIP payments should be offset against the MedPay amounts the parties agreed to at mediation. IV. Prayer For these reasons, Colonial prays that this Court finds the requested offsets should be allowed and other such further relief, both general and special, to which Colonial may be justly entitled. COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 4 00121.768 2254758 Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, L.L.P. /s/ Russell Dennis Russell L. Dennis State Bar No. 24036470 Chris Gabriel State Bar No. 24074237 THOMPSON, COE, COUSINS & IRONS, L.L.P. Plaza of the Americas 700 N. Pearl Street, Twenty-Fifth Floor Dallas, Texas 75201-2832 Telephone: (214) 871-8267 Facsimile: (214) 871-8209 E-Mail: rdennis@thompsoncoe.com E-Mail: cgabriel@thompsoncoe.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I certify that on August 7, 2015, a true and correct copy of the foregoing was served per the Texas Rules of Civil Procedure to: David Trosman Law Offices of Domingo Garcia 400 Zang Blvd., 6th Floor Suite 600 Dallas, TX 75208 /s/ Russell Dennis Russell L. Dennis COLONIAL’S BRIEF ADDRESSING OFFSET FOR PERSONAL INJURY PROTECTION BENEFITS PAGE 5 00121.768 2254758 Certification I, Brett Sutton, as a duly authorized Nationwide Insurance associate entrusted with oversight of the system of record from which this copy was produced, based upon information and belief, certify under the penalty of perjury that this attached copy of policy 78 42 A 673423 was made at or near the time of certification, as part of regularly conducted business activities, and is a true and accurate copy of the official record kept as part of regular business activities. Date: August 28, 2013 Signature Brett Sutton Print Name Processor, Imaging Title EXHIBIT A PAGE 1 Colonial County Mutual Insurance Company NATIONWIDE AUTO POLICY DECLARATIONS bBBSd Page 01 of 02 Your policy provides the coverages and limits shown on the Schedule of coverages. They apply toeach insured vehicle as indicated. The vehicle(s) described in this policy is principally garaged at the mailing address shown below unless otherwise stated. These declarations supersede any such form issued earlier. PolicyNumber: Policyholder: 78 42 A 673423 (Named Insured) ALEXANDRIA ATENCIO Issued: 3600 POTEET DR 324 MESQUITE, TX OCT 09, 2008 75150-7652 Policy Period From: OCT 07, 2008 to JAN21, 2009 12:01 a.m. standard time at the address of the named insured as stated herein, IMPORTANT M E S S A G E S : THE FOLLOWING CHANGE(S) HAVE BEEN MADE TO YOUR POLICY: EFFECTIVE OCT 07, 2008 -REMOVED DRIVER WE AGREE TO MAKE AVAILABLE TO YOU AN INSTALLMENT PAYMENT PLAN AS DESCRIBED IN RULE 14 OF THE TEXAS AUTOMOBILE RULES AND RATING MANUAL, EXCEPT WHEN AN INSTALLMENT PAYMENT PLAN IS PROHIBITED BY OTHER RULE OR BY STATUTE. INSURED VEHICLE(S) & S C H E D U L E OF C O V E R A G E S 1. 2005 TOYO RAV4 BAS ID #JTEGD20V950067046 Six Month Coverages Limits Of Liability Premium A LIABILITY BODILY INJURY LIABILITY $ 25,011 EACH PERSON | 50,011 EACH ACCIDENT 105.00 PROPERTY DAMAGE LIABILITY I 25,011 EACH ACCIDENT 127.30 B1 MEDICAL PAYMENTS $ 10,011 EACH PERSON 28.80 C UNINSURED AND UNDERINSURED MOTORISTS -BODILY INJURY & 25,011 EACH PERSON I 50,011 EACH ACCIDENT $ 23.60 -PROPERTY DAMAGE $ 25,011 EACH ACCIDENT LESS $ 250 24.40 D DAMAGE TO YOUR AUTO ACTUAL CASH VALUE LESS $ 245 73.70 OTHER THAN COLLISION (COMPREHENSIVE) $ 1,500 IN CUSTOMIZATION COLLISION AND $ 1,500 ACTUAL CASH VALUE LESS $ 495 211.60 IN CUSTOMIZATION RENTAL REIMBURSEMENT $ 30 PER DAY 18.00 $ 900 PER ACCIDENT TOWING AND LABOR $ 120 EACH DISABLEMENT 2.60 AUTOMOBILE THEFT PREVENTION AUTHORITY FEE .50 TOTAL $ 615.50 VEHICLE ENDORSEMENTS 3356 LOSS PAYEE-TEXAS CREDIT UNION LIEN EXPIRES ON AUG 15, 2012 V-1510 EXHIBIT A PAGE 2 Page 02 of 02 2. 1993 CHEV PICKUP1S ID #2GCEC19Z2P1185672 Six Month Coverages Limits Of Liability Premium A LIABILITY BODILY INJURY LIABILITY | 25,01 1EACH PERSON 50,011 EACH ACCIDENT 87.40 PROPERTY DAMAGE LIABILITY $ 25,011 EACH ACCIDENT 113.00 B1 MEDICAL PAYMENTS $ 10,011 EACH PERSON 33.1 0 C UNINSURED AND UNDERINSURED MOTORISTS -BODILY INJURY $ 25,011 EACH PERSON $ 50,011 EACH ACCIDENT 23.30 25,011 EACH ACCIDENT -PROPERTY DAMAGE $ LESS $ 250 24.70 .50 AUTOMOBILE THEFT PREVENTION AUTHORITY FEE TOTAL 282.00 GARAGED AT 11437 WOOD MEADOW PARKWAY APT 225 DALLAS, TX 75228 INSURED DRIVERS: Driver Birth Marital # Name Date Status 01 ALEXANDRI ATENCIO 01/28/81 SINGLE 02 SALVADOR ROBLEDO 03/22/40 MARRIED APPLIED DISCOUNTS: PASSIVE RESTRAINT ACCIDENT FREE MULTI CAR NEW VEHICLE Policy Form & Endorsements: AUTO 0042 3374 Office Use:JUL 24, 2008 TERR: 314 $ 21.30 Issued By: COLONIAL COUNTY MUTUAL INSURANCE COMPANY Home Office - Austin, Texas Service Center: 11603 WEST COKER LOOP, SAN ANTONIO, TX 78216 Insurance Agent: NATIONWIDE SA IMPORTANT PHONE NUMBERS Nationwide 24-Hour C l a i m s Number: 1-800-421-3535 For Q U E S T I O N S About Your Policy, C a l l Your NATIONWIDE A G E N T : NATIONWIDE S A L E S S O L U T I O N 877-669-6877 For Hearing Impaired: TTY 1-800-622-2421 Nationwide Regional Office: 800-526-3765 EXHIBIT A PAGE 3 POLICY MASTER RECORD PRINTOUT 10/05/09 09 A-CANCELLED PAGE 01 OF 06 RO ST PREPOLNDM LAST NAMEREASON; HISTORICAL MRPO - MONTH END 78 42 A 673423 ATENCIOMRPO TYPE: 01 SP AP MiCr-LOC CNTY TERR TOWN CL MKT-GRP TAX CD TAX-PRCT/CHRG-PRM FIRE-DIST 1 1 057 314 BIND DATE/TIME 07-23-2008 01:13 PC ADDRESS ORIGIN - CUSTOMER AGENT3 0122 NATIONWIDE SALE TEL 877 669 6877 ACTIVE SSR FULL-COMM AOA INSTALL DATE 12/11/01 ALEXANDRIA ATENCIO 3600 POTEET DR 324 CUSTOMER NUMBER R760090S352 MESQUITE, TX MEDIA 00170000 75150-7652 POLICY BASIC DATA * * * * * * * * * * * * * * * REN-DTNEXT-REN OSU-EFFGUAR-REN ANNL-ANNIV COSPL-GRP TERM TERM-NUM 01/21/09 07/21/09 07/21/07 07/21/09 CNTY SA 004 TIERFOT- JACKET FULL-TERM CR FRE IDFRCENGISS-NUM/SFX PREM WRTN-PREM IND N 00042 992.70 0.50 RECVD LAST CENG FACILITY FAC TO D DR IN OFFICE E F F DATE PRODUCT NON-REN RESL-MKT PRIOR/CURR VOL FL HRV PRCT 07/23/07 01/21/09 AUTO 05 CESS DATE AQD M+RENPLINDNMDED-REW POI 000 777 SS 0 000 0000 DECS03/30/09 12/22/08 12/19/08 10/09/08 07/24/08 06/19/08 12/19/07 09/11/07 VEE REV-TYPE/DATE VEH REV-TYPE/DATE VEH REV-TYPE/DATE P QUEST05/22/10 P MVR 06/01/09 P CBR OS/17/09 MULTILNG TMOTHERTORT PURCHAS LIFE-DISCOUNT #MCD DISC DISC DISC FLAG FLAG VA TRAN HE ELIG D.D0 0.0D 0. 00 N N N N 001 MISC BI-LT INELIG LIAB RTD MATRIXHHC CTR TPC TPC FEES THRESRISK SURLIM CD THR CODE#D BYSIG CODE TERMS 0.00 02 81 001 9 DEC-EFF ACC FORG ASSOC DATE RECOUP FHCFELIG DATE DISC 01/21/09 0.00 0.0001/21/09N ACC-FORG ACC-FORGMIN-FORG MIN-FORG DED-REWD DED-REWD TLOSS-WVR PURCH DATE PURCH DATE PURCH DATE PURCH Y 01/21/2009Y 01/21/2009N 12/31/3500 TOT FILED STBL NEW STBL OLD TOT POL CAPCAP CAP MHO PREM PREM PREM CAP FLGFCTRIND FLG 0.00 0.00 0.00 0.00 0.000 EXHIBIT A PAGE 4 Table Of Contents Page INSURING AGREEMENT D1 DEFINITIONS D1 INSURED PERSONS' DUTIES AFTER AN ACCIDENT OR LOSS D2 TERRITORY D3 COVERAGES: Physical Damage P1-P6 ^ (damage to your auto) Comprehensive Collision Towing and Labor S P| •1 10 Auto Liability (for damage or injury to others caused by your auto) Property Damage and Bodily Injury L1-L5 Personal Injury Protection N1-N2 (no-fault motor vehicle insurance) ^ Medical Payments M1-M4 ^ (medical expenses payable regardless of fault) ffipHfl Uninsured Motorists/Underinsured Motorists Coverage U1-U3 GENERAL POLICY CONDITIONS How Your Policy May Be Changed G1 Optional Payment of Premium in Installments G1 Renewal G1 Cancellation During Policy Period G1 Nonrenewal G2 Automatic Termination G2 Termination Provisions G2 Dividends G2 If You Become Bankrupt G2 Unauthorized Use of Other Motor Vehicles G3 Fraud and Misrepresentation G3 Legal Action Limitations G3 Subrogation G3 Non-Sufficient Funds and Late Payment Charges G4 Special Provisions G4 V-042 EXHIBIT A PAGE 5 Colonial County Mutual Insurance Company Insuring Agreement For the policyholder's payment of premiums in amounts we require and subject to all of the terms and conditions of thispolicy, we agree to provide the coverages the policyholder has selected. These selections are shown in the enclosed Declarations, which are a part of this policycontract. The selected coverages in thispolicy apply only to occurrences while the policy isin force. Renewal premiums for terms of six months each must be paid in advance. Definitions This policy uses certain common words for easy reading. They are defined as follows: 1. 'POLICYHOLDER" means the firstperson named in theDeclarations. The policyholder is the named insured under thispolicy but does not include the policyholder's spouse. Ifthe first named insured is an organization, that organizationis the policyholder. 2. "YOU" and YOUR" mean: a) the policyholder and spouse, ifresident of thesame household, when the policyholder is a person; or b) the sole proprietoror majority shareholder of an organization, orgeneral partnerof a family limited partnership, as shown in the Declarations, and spouse, Ifresident of the same household, when the policyholder is an organization. 3. "RELATIVE" means one who regularly resides in your household and who is related toyou by blood, marriage, or adoption (includinga ward or fosterchild). A relative may livetemporarily outside your household, including your spouse, during a period of separation in contemplationof divorce. 4. 'INSURED" means one who is described as entitled to protection under each coverage. 5. 'WE," "US," "OUR," and "THE COMPANY" mean or refer to the company issuing the policy-Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company, Nationwide Property and Casualty Insurance Company, Colonial County Mutual Insurance Company, Nationwide General Insurance Company, or Nationwide Assurance Company. 6. 'YOUR AUTO" means the vehicle(s) described in the Declarations. 7. "MOTOR VEHICLE" means a land motor vehicle designed primarily to be driven on publicroads. This does not include vehicles operated on railsor crawler treads. Other motorized vehicles designed for use mainly offpublic roads shall be included within the definition of motor vehicle when used on public roads. 8. "PRIVATE PASSENGER AUTO" means a: a) four-wheel automobile for private passenger use; b) four-wheel van; or c) pick-up truck having either four or six wheels. 9. 'DEDUCTIBLE" means the amount of loss tobe paid by the insured. We pay for covered loss above the deductible amount shown in the Declarations. 10. "OCCUPYING" means in, upon, entering, or alighting from. 11. "BODILY INJURY" means: a) physical injury; b) sickness; c) disease; or d) resultant death; of any person which results directly from a motor vehicle accident. D1 EXHIBIT A PAGE 6 InsuringAgreement 12. "PROPERTY DAMAGE" means: a) destruction of tangibleproperty; b) damage or injury to it; and c) loss of its use. 13. "FUNGUS" means any type or form of fungus, including mold, mildew, mycotoxins, spores, scents or by products produced or released by fungi. 14. "BUSINESS DAY" means a day other than a Saturday, Sunday or a holiday recognized by the state of Texas. Other words are also defined. All defined words are in bold print. Duties After an Accident or Loss A. We must be notifiedpromptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injuredpersons and of any witnesses. If we show that your failure toprovide notice prejudices our defense, there is no liability coverage under the policy. B. A person seeking any coverage must: 1. Cooperate with us in the investigation, settlement or defense of any claim or suit. 2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss. 3. Submit, as often as we reasonably require, to physical exams by physicians we select.We will pay for these exams. 4. Authorize us to obtain medical records and other pertinentrecords. 5. When required by us: a. submit a sworn, signed proof of loss; b. submit to examination under oath and ifrequested sign the transcriptof theexamination under oath. C. Within 15 days after we receive your written notice of claim, we must: 1. acknowledge receipt of the claim. If our acknowledgement of the claim is not in writing, we will keep a record of the date, method and content of our acknowledgement. 2. begin any investigation of the claim. 3. specify the information you must provide in accordance with paragraph B. above. We may request more information, if during the investigationof the claim such additional information is necessary. D. After we receive the information we request, we must notify you in writing whether the claim will be paid or has been denied or whether more information is needed: 1. within 15 business days; or 2. within 30 days if we have reason to believe the loss resulted from arson. E. If we do not approve payment of your claim or require more time for processing your claim, we must: 1. give the reasons for denying your claim; or 2. give the reasons we require more time to process your claim. But, we must either approve or deny your claim within 45 days after our requesting more time. F. In the event ofa weather-related catastrophe or major natural disaster,as defined by the Texas Department of Insurance, the claim-handling deadlines as stated above are extended for an additional 15 days. D2 EXHIBIT A PAGE 7 Insuring Agreement G. Loss Payment 1. Ifwe notifyyou that we willpay your claim, or part of your claim, we must pay within 5 business days after we notify you. 2. If payment of your claim or part of your claim requires theperformance of an act by you, we must pay within 5 business days after the date you perform the act. H. Notice of Settlement of Liability Claim 1. We will notifyyou in writingof any Initial offer tocompromise orsettlea claim against you under the liability section of this policy.We will give you notice within 10 days after thedate the offer is made. 2. We will notify you in writing of any settlement of a claim against you under the liability section of this policy. We will give you notice within 30 days after the date of the settlement. I. An insured seeking Uninsured/Underinsured Motorists Coverage must also: 1. Promptly notify the police if a hit and run driver is involved; 2. Promptly send us copies of the legal papers if a suit is brought; 3. Take reasonable steps after loss,at our expense, to protect damaged property from further loss; and 4. Permit us to inspect and appraise the damaged property before its repair or disposal. J. An insured seeking coverage for damage to your auto must also: 1. Take reasonable steps after loss to protect your covered auto and its equipment from further loss. We will pay reasonable expenses incurred to do this; 2. Promptly notify the police if your covered auto is stolen; and 3. Permit us to inspect and appraise the damaged property before its repair or disposal. Territory The policy applies inthe United States of America and itsterritories or possessions, Canada and Puerto Rico or between their ports. All coverages exceptUninsured Motorists apply to occurrences in Mexico, if within 25 miles of the United States boundary. We will pay losses under any Comprehensive or Collisionloss toyour auto in the United States,not in Mexico. If your automust be repaired In Mexico in order to be driven, we will not pay more than the actual cash value of such loss at the nearest United States point where the repairs can be made. NOTE: You will need to buy auto insurance from a Mexican insurance company-regardless of coverage provided by thispolicy-before drivingin Mexico. Otherwise, you may be subject to jail detention, auto impoundment, and other legal complications in case of an accident. D3 EXHIBIT A PAGE 8 Physical Damage (damage to your auto) ADDITIONAL DEFINITIONS APPLICABLE TO THESE COVERAGES For purposes of these coverages only: 1. "LOSS" means direct, physical and accidentalloss or damage to your auto. Your auto includes its equipment. 2. "EQUIPMENT" means anything usual and incidental to the use of a motor vehicle as a motor vehicle. Any type of trailer Is not equipment. 3. "COLLISION" means the upset, orcollision with another object of your auto. However, loss caused by the following are not considered collision: 1. Missiles or falling objects; 6. Hail, water or flood; 2. Fire; 7. Malicious mischief or vandalism; 3. Theft or larceny; 8. Riot or civil commotion; 4. Explosion or earthquake; 9. Contact with bird or animal; or 5. Windstorm; 10. Breakage of glass. If breakage of glass is caused by a collision or if loss is caused by contact with a bird or animal, you may elect to have it considered a loss caused by collision. Coverage Agreements COMPREHENSIVE COVERAGE 1. We will pay for loss to your auto not caused by collision orupset. We willpay for the loss less your deductible. Coverage is included for: a) damage from contact with: (1) animals; or (2) falling or flying objects. b) broken glass: (1) even if caused by collision or upset; and (2) if you do not have Collision coverage. If your Comprehensive and Collision coverages have different deductibles, the smaller deductible will apply to broken glass. For damage to your auto's windshield, we may offer to have it repaired in lieu of replacement. We will not apply a deductible for the repair of the windshield. However, if the repair isnot satisfactory, we will replace the windshield subject to your deductible. 2. Also, if your auto has a loss under this coverage we will: a) pay forresultingdamage to your clothing and luggage or that of any relative. Maximum payment is $200. We will pay for stolen clothing or luggage only if your auto is stolen. b) repay your travel costs after your auto is stolen.Maximum payment is $20 per day -- not to exceed $600 per occurrence. These costs must be incurred within a certain time.It starts 48 hours after you report the theft to us and the police, It ends when your auto is returned