Skip to Navigation
The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

Holly Villa Condominiums Association v. Westchester Surplus Lines Insurance Company et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
4:15-cv-02200 Search Pacer
ACE Group party(s): 
Opposing Party: 
Holly Villa Condominiums Association
Court Type: 
Federal
US District Court: 
Southern District of Texas
Date Filed: 
Jul 31 2015

PLAINTIFF’S ORIGINAL PETITION AND
INITIAL WRITTEN DISCOVERY REQUESTS

Pursuant to the Texas Rules of Civil Procedure, Plaintiff, Holly Villa Condominiums
Association files this Original Petition and Initial Written Discovery Requests, complaining of
the acts and omissions of Defendants, Westchester Surplus Lines Insurance Company
(“Westchester”) and, in support, respectfully shows the Court as follows:

I.
DISCOVERY CONTROL PLAN

1.    This case is intended to be governed by Discovery Level 2.

II.
PARTIES & SERVICE

2.    Holly Villa Condominiums Association, a Domestic Nonprofit Corporation,
(“Plaintiff') resides in Harris County, Texas.
3.    Defendant Westchester is an eligible surplus lines insurance company doing
business in Texas that, according to the Texas Department of Insurance, may be served through
the Texas Commissioner of Insurance, Texas Department of Insurance, 333 Guadalupe, Austin,
Texas 78701.
4.    Defendant, John Lance Grigar (“Grigar”), is an individual who assisted with
adjusting the claim at issue and is a resident of the State of Texas. This Defendant may be
served with process at 1 Sugar Creek Center Blvd, Suite 440, Sugar Land, Texas 77478.

III.
JURISDICTION & VENUE

5.    This court has subject matter jurisdiction of this cause of action because it
involves an amount in controversy in excess of the minimum jurisdictional limits of this Court.
No diversity of citizenship exists in this matter.
6.    Plaintiff prefers to have the jury determine the fair amount of compensation for
Plaintiff s damages, it is early in the case to be assessing the full nature and scope of Plaintiffs
damages, and Plaintiff places the decision regarding the amount of compensation to be awarded
in the jury's hands. Rule 47 of the Texas Rule of Civil Procedure, however, requires Plaintiff to
provide a statement regarding the amount of monetary relief sought. Accordingly, pursuant to
Rule 47 of the Texas Rules of Civil Procedure, Plaintiff seeks monetary relief between
$ 100,000.00 and $200,000.00.
7.    Venue is proper in Harris County, Texas because the insured property is situated
in Harris County, Texas and/or the contract was signed in Harris County, Texas. Tex. Civ. Prac.
& Rem. Code § 15.002.

IV.
FACTS

8.    Plaintiff is a named insured under a property insurance policy number
D35964526007 (the “Policy”) issued by Westchester. The Policy insures, among other things,
against losses from wind and hail damage to Plaintiffs property, namely, the real property and
improvements located at 5538 Holly Street, 5542 Holly Street, and 7925 Rampart Street,
Houston, Harris County, Texas 77081 (the “Property”).
9.    On or about June 16, 2013 during the policy period, a storm caused covered
damage to the Subject Property. The storm caused extensive damage to the roofs, exterior
carports, and fence.
10.    Shortly after the storm, plaintiff noticed damage to the property. Holly Villa
Condominiums Association contacted Westchester by telephone to notify Westchester of the
damage.
11.    Plaintiff submitted a claim to Westchester against the policy for all roof damage,
structural damage, water damage, and wind damage the Property sustained as a result of the
storm.
12.    Plaintiff asked that Westchester honor its contractual obligations to cover the cost
of repairs to Plaintiffs property.
13.    Westchester assigned John Lance Grigar to adjust the Claim. Defendants,
Westchester and Grigar, conducted a substandard investigation of Plaintiffs claim, failed to
thoroughly investigate Plaintiffs losses, and spent an inadequate amount of time on the
investigation. Grigar failed to fully inspect any damage to the property other than the roof.
14.    Despite obvious visible wind damage and multiple indentations in the roof caused
by hail, Grigar, on his own behalf and on behalf of Westchester, verbally misrepresented to
Plaintiff at the time of the inspection that the roof had minimal wind and hail damage. Grigar
repeated this misrepresentation, again on his own behalf and on behalf of Westchester, in a letter
to Plaintiff dated March 24, 2014.
15.    Together, Defendants Westchester and Grigar set out to deny properly covered
damages by performing a results-oriented investigation of Plaintiffs claim, which resulted in a
biased, unfair and inequitable evaluation of Plaintiff s losses on the property.
16.    Defendant Westchester failed to perform its contractual obligation to adequately
compensate Plaintiff under the terms of the policy. All conditions precedent to recovery upon the
policy have been performed by Plaintiff. Westchester conduct constitutes a breach of the
insurance contract between Westchester and Plaintiff.
17.    Even though Plaintiffs property sustained obvious damages caused by a covered
occurrence, Defendants misrepresented to Plaintiff that the Policy provided coverage to Plaintiff
for some of the damage, thus falsely claiming Plaintiffs property had not been damaged.
Defendants’ conduct is a violation of the Texas Insurance Code, Unfair Settlement Practices.
TEX. INS. CODE §541.060(a)(1).
18.    Defendants failed to make an attempt to settle Plaintiffs claim in a fair manner,
although they were aware of their liability to Plaintiff under the Policy. Defendants’ conduct is a
violation of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(2)(A).
19.    Defendants refused to adequately compensate Plaintiff under the terms of the
Policy even though they failed to conduct a reasonable investigation of the claim. This conduct
violated the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§542.060(a)(7).
20.    Defendants failed to offer Plaintiff a reasonable explanation for why his claim
was being denied. This conduct violated the Texas Insurance Code, Unfair Settlement Practices.
TEX. INS. CODE §541.060(a)(3).
21.    Defendant, Westchester, failed to timely acknowledge Plaintiffs claim, begin an
investigation of the claim, and request all information reasonably necessary to investigate
Plaintiffs claim within the statutorily mandated time of receiving notice of the claim. This
conduct violated the Texas Insurance Code, Prompt Payment of Claims. TEX. INS. CODE
§542.055.
22.    Defendant, Westchester, failed to accept or deny Plaintiffs full and entire claim
within the statutorily mandated time of receiving all the necessary information. This conduct was
a violation of the Texas Insurance Code, Prompt Payment of Claims. TEX. INS. CODE
§542.056.
23.    Defendant, Westchester, has delayed full payment of Plaintiffs claim longer than
allowed, and, to date, Plaintiff has not received full payment for his claim. This conduct is a
violation of the Texas Insurance Code, Prompt Payment of Claims. TEX. INS. CODE §542.058.
24.    Since the time Plaintiffs claim was presented to Defendant Westchester, the
liability of Westchester to pay the full claim in accordance with the terms of the Policy has been
reasonably clear. Nevertheless, Westchester has refused to pay, despite there being no basis on
which a reasonable insurance company would have relied to deny the claim. This conduct is a
violation of Westchester duty of good faith and fair dealing.
25.    All Defendants knowingly or recklessly made false representations, as described
above, as to material facts. Alternatively, all Defendants knowingly concealed all or part of
material information from Plaintiff.
26.    To date, Plaintiff has yet to receive full payment for the damages to which
Plaintiff is entitled under the Policy. Plaintiff has suffered damages as a result of Defendants’
actions described above. The mishandling of Plaintiffs claim also caused a delay in Plaintiffs
ability to fully repair his property, resulting in additional damages.

V.
CAUSES OF ACTION

A.    Breach of Contract (Against Westchester)
27.    Defendant Westchester had a contract of insurance with Plaintiff. Plaintiff met or
performed all conditions precedent under the contract. Westchester breached the terms of that
contract by wrongfully denying and/or underpaying the claim and Plaintiff was damaged
thereby.
28.    Defendant Westchester is therefore liable to Plaintiff for breach of contract.
B.    Prompt Payment of Claims Statute (Against Westchester)
29.    The Claim is a claim under an insurance policy with Defendant Westchester, of
which Plaintiff gave Westchester proper notice. Westchester is liable for the Claim.
30.    Defendant Westchester violated the prompt payment of claims provisions of the
Texas Insurance Code, namely, section 542.051 et seq., by:
a.    Failing to acknowledge or investigate the claim or to request from Plaintiff all
items, statements, and forms Westchester reasonably believed would be
required within the time constraints provided by Tex. Ins. Code § 542.055;
b.    Failing to notify Plaintiff in writing of its acceptance or rejection of the Claim
within the applicable time constraints provided by Tex. Ins. Code § 542.056;
and/or
c.    Delaying payment of the Claim following Westchester’ receipt of all items,
statements, and forms reasonably requested and required, longer than the
amount of time provided by Tex. Ins. Code § 542.058.
31.    Defendant Westchester is therefore liable to Plaintiff for damages. In addition to
Plaintiffs claim for damages, Plaintiff is further entitled to 18% interest and attorneys’ fees as
set forth in section 542.060 of the Texas Insurance Code.
C.    Unfair Settlement Practices/Bad Faith (Against Both Defendants)
32.    Each of the foregoing paragraphs is incorporated by reference in the following.
33.    As explained further herein, Defendants violated Tex. Ins. Code § 541.060(a) by
engaging in unfair settlement practices.
Defendant Westchester
34.    Defendant Westchester engaged in unfair settlement practices by:
a.    misrepresenting to Plaintiff a material fact or policy provision relating to
coverage at issue;
b.    failing to attempt in good faith to effectuate a prompt, fair, and equitable
settlement of a claim after Westchester’ liability had become reasonably clear;
c.    failing to promptly provide Plaintiff with a reasonable explanation of the basis
in the policy, in relation to the facts or applicable law, for Westchester' denial
of a claim or offer of a compromise settlement of a claim;
d.    failing within a reasonable time to affirm or deny coverage of a claim to
Plaintiff or submit a reservation of rights to Plaintiff; and
e.    refusing to pay the claim without conducting a reasonable investigation with
respect to the claim.
35.    Each of the aforementioned unfair settlement practices was committed knowingly
by Defendant Westchester and was a producing cause of Plaintiffs damages. Westchester is
therefore liable to Plaintiff for engaging in such unfair settlement practices and causing
Plaintiffs damages.
PLAINTIFF’S ORIGINAL PETITION

Case 4:15-cv-02200 Document 1-1 Filed in TXSD on 07/31/15 Page 8 of 27
Adjuster John Lance Grigar
36.    Defendant Grigar was a contractor and/or adjuster assigned by Westchester to
assist with adjusting the Claim. Grigar was charged with investigating the claim and
communicated with the insured about the Policy terms. Insurance adjusters are ‘‘persons
engaged in the business of insurance” under Tex. Ins. Code 541.001, et seq., and are individually
liable for their individual violations of the Texas Insurance Code. See Liberty Mut. Ins. Co. v.
Garrison Contractors, Inc., 966 S.W.2d 482, 486 (Tex. 1998).
37.    Grigar was tasked with the responsibility of conducting a thorough and reasonable
investigation of Plaintiffs Claim, including the discovery of covered damages and fully
quantifying covered damages to Plaintiff s Property.
38.    Grigar conducted a substandard, results-oriented inspection of the Subject
Property. As such, the adjuster failed to discover covered damages and/or fully quantify covered
damages to Plaintiffs Property, as the Policy and Texas law require.
39.    Further, the adjuster misrepresented material facts to Plaintiff, that is, the
existence and true value of Plaintiff s covered losses. Additionally, the adjuster failed to provide
Plaintiff with a reasonable explanation as to why Grigar was not compensating Plaintiff for the
covered losses, or the true value thereof.
40.    Thus, Grigar engaged in unfair settlement practices by:
a.    misrepresenting to Plaintiff a material fact or policy provision relating to the
coverage at issue;
b.    failing to attempt in good faith to effectuate a prompt, fair, and equitable
settlement of a claim after Westchester' liability had become reasonably clear;
c.    failing to promptly provide Plaintiff with a reasonable explanation of the basis
in the policy, in relation to the facts or applicable law, for Grigar’s denial of a
claim or offer of a compromise settlement of a claim; and/or
d.    failing to conduct a reasonable investigation of Plaintiffs Claim.
41.    Each of the aforementioned unfair settlement practices was committed knowingly
by Grigar and was a producing cause of Plaintiffs damages. Grigar is therefore liable to
Plaintiff for engaging in such unfair settlement practices and causing Plaintiffs damages.
D.    DTPA (Against Both Defendants)
42.    Each of the foregoing paragraphs is incorporated by reference here fully.
43.    At all material times herein, Plaintiff was a '‘consumer” who purchased insurance
products and services from Defendants, and the products and services form the basis of this
action.
44.    Defendants have violated the Texas Deceptive Trade Practices-Consumer
Protection Act (“DTPA”) in at least the following respects:
a.    Defendants represented the Policy confers or involves rights, remedies, or
obligations which it does not have, or involve, or which are prohibited by law;
b.    Defendants represented goods, products, or services had sponsorship,
approval, characteristics, uses, benefits, or quantities they do not have;
c.    Defendants failed to disclose information concerning goods or services which
was known at the time of the transaction when such failure to disclose such
information was intended to induce Plaintiff into a transaction Plaintiff would
not have entered into had the information been disclosed;
d.    Defendants, by accepting insurance premiums but refusing without a
reasonable basis to pay benefits due and owing, engaged in an unconscionable
action or course of action as prohibited by the DTPA § 17.50(a)(l)(3) in that
Defendants took advantage of Plaintiffs lack of knowledge, ability,
experience, and capacity to a grossly unfair degree, that also resulted in a
gross disparity between the consideration paid in the transaction and the value
received, in violation of Chapter 541 of the Insurance Code;
e.    Generally engaging in unconscionable courses of action while handling
Plaintiffs claim; and/or
f.    Violating the provisions of the Texas Insurance Code, as further described
elsewhere herein.
45.    As a result of Defendants’ violations of the DTPA, Plaintiff suffered actual
damages, and such violations were a producing, actual, and proximate cause of Plaintiffs
damages. Therefore, Defendants are liable to Plaintiff for violations of the DTPA.
46.    Further, Defendants knowingly and/or intentionally committed the acts
complained of herein. As such. Plaintiff is entitled to exemplary and/or treble damages pursuant
to the DTPA and Texas Insurance Code § 541.152(a)-(b).
E.    Breach of Duty of Good Faith and Fair Dealing (Against Westchester)
47.    Defendant Westchester breached the common law duty of good faith and fair
dealing owed to Plaintiff by denying or delaying payment on the Claim when Westchester knew
or should have known liability was reasonably clear. Westchester' conduct proximately caused
Plaintiffs damages.
48.    Defendant Westchester is therefore liable to Plaintiff.
F.    Attorneys’ Fees
49.    Plaintiff engaged the undersigned attorney to prosecute this lawsuit against
Defendants and agreed to pay reasonable attorneys’ fees and expenses through trial and any
appeal.
50.    Plaintiff is entitled to recover reasonable and necessary attorneys’ fees pursuant to
Tex. Civ. Prac. & Rem. Code §§ 38.001-38.003 because Plaintiff is represented by an attorney,
presented the claim to Defendants, and Defendants did not tender the just amount owed before
the expiration of the 30th day after the claim was presented.
51.    Plaintiff is additionally or alternatively entitled to recover reasonable and
necessary attorney’s fees pursuant to Tex. Bus. & Com. Code § 17.50(d).
52.    Plaintiff is additionally or alternatively entitled to recover reasonable and
necessary attorneys’ fees pursuant to sections 541.152 and 542.060 of the Texas Insurance Code.

IX.
CONDITIONS PRECEDENT

53.    All conditions precedent to Plaintiffs right to recover have been fully performed,
or have been waived by Defendants.

X.
JURY TRIAL DEMAND

54.    Plaintiff demands a jury trial of this cause, and has or will tender the appropriate
jury fee.

XL
DISCOVERY REQUESTS

55.    Pursuant to Rule 194, each Defendant is requested to disclose, within fifty (50)
days after service of this request, the information or material described in Rule 194.2(a)-(l).
PLAINTIFF’S ORIGINAL PETITION
56.    Both Defendants are also requested to respond to the attached discovery requests
within fifty (50) days in accordance to the instructions contained therein.

XII.
NOTICE OF INTENT TO USE DISCOVERY AT TRIAL

57.    Pursuant to Texas Rule of Civil Procedure 193.7, Plaintiff hereby gives notice of
Plaintiffs intent to use all discovery instruments produced in this case at trial. Such discovery
instruments include, but are not limited to, all documents Defendants have or will produce in
response to Plaintiffs written discovery requests.

XIII.
CONCLUSION & PRAYER

58.    For these reasons, Plaintiff prays that citations be issued and, upon final hearing
of the case. Plaintiff recover all damages from and against Defendants that may reasonably be
established by a preponderance of the evidence, and Plaintiff be awarded attorneys’ fees through
trial and appeal, costs of court, pre-judgment interest, post-judgment interest, and such other and
further relief, general or special, at law or in equity, to which Plaintiff may show himself to be
justly entitled.
 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

Javascript is required to view this map.