Preview
11/15/2019 11:54 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 38531013
By: Kimberly Garza
Filed: 11/15/2019 11:54 AM
CAUSE NO. 2019-12826
MICHAEL FERGUSON AND CHASE § IN THE DISTRICT COURT
FERGUSON §
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VS. § HARRIS COUNTY, TEXAS
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ALLSTATE INSURANCE COMPANY §
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§ 157TH JUDICIAL DISTRICT
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DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER
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TO THE HONORABLE JUDGE OF SAID COURT:
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COMES NOW Allstate Fire and Casulaty Insurance Company incorrectly named as Allstate
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Insurance Company, Defendant in the above styled and numbered cause of action, and in response to
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the complaints filed against it, would respectfully show unto this Honorable Court and Jury as
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follows:
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I.
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Pursuant to Texas Rules of Civil Procedure Rule 94, Allstate Insurance Company asserts that
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it is not liable to the Plaintiffs for the causes of action plead in this litigation as Plaintiffs did not
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have, at the time of the accident made the basis of this suit, a policy of insurance from Allstate
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Insurance Company.
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II.
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Anyone qualified for coverage under the underinsured/uninsured motorist provisions of the
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policy issued by Defendant, if any, to Plaintiff would have to be a covered person to receive benefits,
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and such benefits would have to be paid under the following provisions:
We will pay damages which a covered person is legally entitled to recover
from the owner or operator of an uninsured motor vehicle because of
bodily injury sustained by a covered person, or property damage, caused
by an accident.
The limit of liability shown in the Declaration for “each person” for bodily
injury liability is our maximum limit of liability for all damages for bodily
injury sustained by any one person in any one auto accident.
"Uninsured motor vehicle” means a land motor vehicle or trailer or any type,
[w]hich is an underinsured motor vehicle.
Furthermore, and pursuant to Stracener v. United Services Automobile Association, 777 S.W.
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2d 378 (Tex. 1989), the amount of damages for which there is coverage under the applicable
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personal automobile policy issued by Defendant and under Article 5.06-1, Texas Insurance Code,
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should be reduced or totally offset by any amount recovered or recoverable from the underinsured
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Defendant or any other person, firm or entity responsible for the injuries and damages to Plaintiffs.
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Hence, if there is any combination of benefits payable to Plaintiffs from the responsible parties,
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whether paid by the responsible parties or paid on their behalf because of the Plaintiffs’ damages,
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said payments should be offset against the Plaintiffs’ damages, which would affect the Plaintiffs’
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recovery from Defendant. Defendant is also entitled to any monies previously paid to Plaintiff by
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Defendant. Defendant asserts its rights to all legal and/or contractual offsets and/or credits to which
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it may be entitled.
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III.
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Defendant would show that any injuries, damages or liabilities complained of by Plaintiffs
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herein are the result in whole or in part of pre-existing conditions, injuries, diseases and disabilities
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or subsequent conditions, injuries, diseases or disabilities of Plaintiffs and not the result of any act or
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omission on the part of the Defendant.
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IV.
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Pursuant to the Texas Rules of Civil Procedure 93, Defendant asserts that Plaintiffs have not
complied with the terms of the policy of insurance requiring the performance of certain conditions
precedent to the bringing of this suit against Allstate Fire and Casualty Insurance Company.
Specifically, Defendant denies that Plaintiffs were involved in a vehicle accident with an uninsured
motorist, as the term is understood pursuant to Texas Law.
V.
Defendant specifically denies that the Plaintiffs have fully complied with all the terms of the
policy as a condition precedent to the bringing the lawsuit.
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VI.
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In the unlikely event that Judgment should be granted to the Plaintiffs, and further, in the
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event that Defendant be ordered to pay any sums to the Plaintiffs, Defendant, Allstate, is subrogated
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under such contract of insurance to the rights of the Plaintiffs, for any sums paid to the Plaintiffs.
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Therefore, Defendant prays that it does have and recover of and from the alleged third person or
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persons, any and all sums this Defendant may be required to pay as a result of the incident made the
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basis of this suit.
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VII.
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The Plaintiffs’ "right" to recover medical expenses is limited by the provisions of Tex. Civ.
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Prac. and Rem. Code 41.0105. The amount Plaintiffs were allegedly "billed" for the medical
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treatment claimed to have been received by them for the post-accident medical treatment is in excess
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of the amounts actually paid or incurred. Thus, recovery of medical or healthcare expenses incurred
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by Plaintiffs are limited to the amount actually paid or incurred by or on behalf of the Plaintiffs.
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VIII.
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Allstate Fire and Casualty Insurance Company, Defendant herein, files this general denial in
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accordance with Rule 92 of the Texas Rules of Civil Procedure and would request strict proof of the
Plaintiff’s allegations upon a trial of this cause.
IV.
Defendant invokes self-authentication rights pursuant to Tex. R. Civ. P. 193.7, and
specifically that documents/items made available by the opposing party through discovery process
may be used at trial and/or in pre-trial proceedings.
X.
Defendant formally requests a jury trial pursuant to Rule 216 of the Texas Rules of Civil
Procedure and tenders the jury fee.
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Defendant also requests the official court reporter of the Court to which this case is assigned
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to trial to perform all the duties of this office, as set forth in Section 52.046 of the Government Code.
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WHEREFORE, PREMISES CONSIDERED, Defendant Allstate Fire and Casualty23
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Insurance Company, prays that the Plaintiff recover nothing of and from the Defendant by reason of
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this suit; that Defendant be discharged without day, with costs of court, and for such other and
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further relief, both general and special, at law and in equity, to which Defendant may show itself
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justly entitled, and for which Defendant will in duty bound, forever pray.
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Respectfully submitted,
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HOPE & CAUSEY, P. C.
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/s/John M. Causey
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John M. Causey
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State Bar No. 04019100
P. O. Box 3188
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Conroe, Texas 77305-3188
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(936) 441-4673 – Metro
(936) 441-4674 – Fax
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Service Email: hcdocket@hope-causey.com
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ATTORNEYS FOR DEFENDANT,
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY
Please be advised that the only valid email address for service of all documents in all matters
handled by this firm is hcdocket@hope-causey.com.
CERTIFICATE OF SERVICE
Pursuant to Rules 21. and 21a. of the Texas Rules of Civil Procedure, I hereby certify that the
original of Defendant’s First Amended Original Answer has been filed with the clerk of the court in
writing, and a true and correct copy of Defendant's Original Answer has been delivered to all
interested parties on November 15, 2019, correctly addressed to:
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VIA E-FILING
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Cynthia Huerta
Schechter McElwee Shaffer
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& Harris, L.L.P.
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3200 Travis, 3rd Floor
Houston, TX 77006
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Attorney for Plaintiffs
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Karl D. Drews
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9432 Katy Freeway, suite 100
Houston, Texas 77055
Attorney for Defendant,
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Rebekah Sydney Frey
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/s/John M. Causey
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John M. Causey
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Preview
11/15/2019 11:54 AM Marilyn Burgess - District Clerk Harris County Envelope No. 38531013 By: Kimberly Garza Filed: 11/15/2019 11:54 AM CAUSE NO. 2019-12826 MICHAEL FERGUSON AND CHASE § IN THE DISTRICT COURT FERGUSON § § VS. § HARRIS COUNTY, TEXAS § k ALLSTATE INSURANCE COMPANY § ler § 157TH JUDICIAL DISTRICT tC DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER ric TO THE HONORABLE JUDGE OF SAID COURT: ist sD COMES NOW Allstate Fire and Casulaty Insurance Company incorrectly named as Allstate es Insurance Company, Defendant in the above styled and numbered cause of action, and in response to rg the complaints filed against it, would respectfully show unto this Honorable Court and Jury as Bu n follows: ily I. ar M Pursuant to Texas Rules of Civil Procedure Rule 94, Allstate Insurance Company asserts that of e it is not liable to the Plaintiffs for the causes of action plead in this litigation as Plaintiffs did not ffic have, at the time of the accident made the basis of this suit, a policy of insurance from Allstate O Insurance Company. y op II. C ial Anyone qualified for coverage under the underinsured/uninsured motorist provisions of the fic policy issued by Defendant, if any, to Plaintiff would have to be a covered person to receive benefits, of Un and such benefits would have to be paid under the following provisions: We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident. The limit of liability shown in the Declaration for “each person” for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. "Uninsured motor vehicle” means a land motor vehicle or trailer or any type, [w]hich is an underinsured motor vehicle. Furthermore, and pursuant to Stracener v. United Services Automobile Association, 777 S.W. k 2d 378 (Tex. 1989), the amount of damages for which there is coverage under the applicable ler tC personal automobile policy issued by Defendant and under Article 5.06-1, Texas Insurance Code, ric should be reduced or totally offset by any amount recovered or recoverable from the underinsured ist Defendant or any other person, firm or entity responsible for the injuries and damages to Plaintiffs. sD Hence, if there is any combination of benefits payable to Plaintiffs from the responsible parties, es rg whether paid by the responsible parties or paid on their behalf because of the Plaintiffs’ damages, Bu said payments should be offset against the Plaintiffs’ damages, which would affect the Plaintiffs’ n ily recovery from Defendant. Defendant is also entitled to any monies previously paid to Plaintiff by ar Defendant. Defendant asserts its rights to all legal and/or contractual offsets and/or credits to which M of it may be entitled. e ffic III. O Defendant would show that any injuries, damages or liabilities complained of by Plaintiffs y op herein are the result in whole or in part of pre-existing conditions, injuries, diseases and disabilities C or subsequent conditions, injuries, diseases or disabilities of Plaintiffs and not the result of any act or ial fic omission on the part of the Defendant. of IV. Un Pursuant to the Texas Rules of Civil Procedure 93, Defendant asserts that Plaintiffs have not complied with the terms of the policy of insurance requiring the performance of certain conditions precedent to the bringing of this suit against Allstate Fire and Casualty Insurance Company. Specifically, Defendant denies that Plaintiffs were involved in a vehicle accident with an uninsured motorist, as the term is understood pursuant to Texas Law. V. Defendant specifically denies that the Plaintiffs have fully complied with all the terms of the policy as a condition precedent to the bringing the lawsuit. k ler VI. tC In the unlikely event that Judgment should be granted to the Plaintiffs, and further, in the ric ist event that Defendant be ordered to pay any sums to the Plaintiffs, Defendant, Allstate, is subrogated sD under such contract of insurance to the rights of the Plaintiffs, for any sums paid to the Plaintiffs. es Therefore, Defendant prays that it does have and recover of and from the alleged third person or rg Bu persons, any and all sums this Defendant may be required to pay as a result of the incident made the n basis of this suit. ily ar VII. M The Plaintiffs’ "right" to recover medical expenses is limited by the provisions of Tex. Civ. of e Prac. and Rem. Code 41.0105. The amount Plaintiffs were allegedly "billed" for the medical ffic treatment claimed to have been received by them for the post-accident medical treatment is in excess yO of the amounts actually paid or incurred. Thus, recovery of medical or healthcare expenses incurred op by Plaintiffs are limited to the amount actually paid or incurred by or on behalf of the Plaintiffs. C ial VIII. fic Allstate Fire and Casualty Insurance Company, Defendant herein, files this general denial in of Un accordance with Rule 92 of the Texas Rules of Civil Procedure and would request strict proof of the Plaintiff’s allegations upon a trial of this cause. IV. Defendant invokes self-authentication rights pursuant to Tex. R. Civ. P. 193.7, and specifically that documents/items made available by the opposing party through discovery process may be used at trial and/or in pre-trial proceedings. X. Defendant formally requests a jury trial pursuant to Rule 216 of the Texas Rules of Civil Procedure and tenders the jury fee. k ler Defendant also requests the official court reporter of the Court to which this case is assigned tC to trial to perform all the duties of this office, as set forth in Section 52.046 of the Government Code. ric ist WHEREFORE, PREMISES CONSIDERED, Defendant Allstate Fire and Casualty23 sD Insurance Company, prays that the Plaintiff recover nothing of and from the Defendant by reason of es this suit; that Defendant be discharged without day, with costs of court, and for such other and rg Bu further relief, both general and special, at law and in equity, to which Defendant may show itself n justly entitled, and for which Defendant will in duty bound, forever pray. ily ar Respectfully submitted, M of HOPE & CAUSEY, P. C. e ffic /s/John M. Causey O John M. Causey y op State Bar No. 04019100 P. O. Box 3188 C Conroe, Texas 77305-3188 ial (936) 441-4673 – Metro (936) 441-4674 – Fax fic Service Email: hcdocket@hope-causey.com of Un ATTORNEYS FOR DEFENDANT, ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY Please be advised that the only valid email address for service of all documents in all matters handled by this firm is hcdocket@hope-causey.com. CERTIFICATE OF SERVICE Pursuant to Rules 21. and 21a. of the Texas Rules of Civil Procedure, I hereby certify that the original of Defendant’s First Amended Original Answer has been filed with the clerk of the court in writing, and a true and correct copy of Defendant's Original Answer has been delivered to all interested parties on November 15, 2019, correctly addressed to: k VIA E-FILING ler tC Cynthia Huerta Schechter McElwee Shaffer ric & Harris, L.L.P. ist 3200 Travis, 3rd Floor Houston, TX 77006 sD Attorney for Plaintiffs es Karl D. Drews rg 9432 Katy Freeway, suite 100 Houston, Texas 77055 Attorney for Defendant, Bu n Rebekah Sydney Frey ily ar M /s/John M. Causey of e John M. Causey ffic yO op C ial fic of Un