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MATHEWS v. INDEMNITY INSURANCE CO. OF NORTH AMERICA Defendant's Original Answer

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CAUSE NO. D-1-GN-10-003685 JAMES MATHEWS VS. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA DEFENDANT'S TO THE HONORABLE COMES Defendant NOW,
Jury Trial Demanded
Filed 11 March 11 P12:56 Amalia Rodriguez-Mendoza District CIeri< Travis District D-1-GN-10-003685
§ § § § § § § §
IN THE DISTRICT COURT 419TH JUDICIAL DISTRICT
TRAVIS COUNTY, TEXAS
ORIGINAL ANSWER
JUDGE OF SAID COURT: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,
in the above-entitled
and numbered cause, and files this its Original Answer
in response to Plaintiff's Original Petition, and for same would respectfully show the Court as follows: Discovery 1. Defendant, Paragraph Indemnity
1(2).
Insurance
Company
of North
America, denies as to
Defendant
is without
knowledge
and information
whether or not discovery in this cause of action is appropriate 2 of Rule 190.3 of the Texas Rules of Civil Procedure, paragraph 1 of Plaintiff's Original Petition.
under Level as alleged in
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER Page 1
~
Parties 2. Defendant, Indemnity Insurance Company of North America, sufficient information to admit or deny the capacity of Plaintiff. this Defendant denies Paragraph II (3). 3. Defendant, Indemnity Insurance Company of North America denies is without Therefore,
Paragraph II (4), and states it is a foreign corporation authorized to do business in the State of Texas, with its designated agent for service being CT Corporation, 350 North St. Paul Street, Dallas, Texas Venue 4. Defendant. Indemnity Insurance Company of North America, denies venue would be appropriate in Travis County, Texas. Defendant denies all other claims made in Paragraph III (5). 5. Defendant, Indemnity Insurance Company of North America, denies Plaintiff is entitled to damages from this Defendant. Paragraph 111(5). 6. Defendant denies all claims in Paragraph 111(6). Defendant denies all claims in 75201.
7.
Defendant
Indemnity
Insurance Company
of North America,
denies
Paragraph IV (7). 8. Defendant, Indemnity Insurance Company of North America, is without
sufficient information to admit or deny Paragraph IV(8): therefore, denies Paragraph IV (8). 9. Defendant, Indemnity Insurance Company of North America, denies
Paragraph IV(9).
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER
Page 2
10.
Defendant,
Indemnity
Insurance Company
of North America, denies
Paragraph IV(10). 11. Defendant, Indemnity Insurance Company of North America, denies
Paragraph IV(11). First Cause of Action 12. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(12). 13. Defendant, Indemnity Insurance Company of North America, Paragraph V(13). 14. Defendant, Indemnity Insurance Company of North America, denies denies
Paragraph V(14). 15. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(15). 16. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(16). 17. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(17). 18. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(18). 19. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(19). 20. Defendant, Indemnity Insurance Company of North America, denies
Paragraph V(20).
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER
Page 3
Second Cause of Action 21. Defendant, Indemnity Insurance Company of North America, denies
Paragraph VI(21). 22. Defendant, Indemnity Insurance Company of North America, denies it
breached its duty to deal fairly and in good faith with Plaintiff, and denies it failed to properly investigate the claim asserted by Plaintiff. Defendant denies Paragraph VI(22). Third Cause of Action 23. Defendant, Indemnity Insurance Company of North America, denies Therefore.
Paragraph VII(23). 24. Defendant. Indemnity Insurance Company of North America. denies it acted fraudulently and with malice (as that term is legally defined) in denying Plaintiffs claim for workers' compensation benefits. Defendant denies its
conduct involved an extreme degree of risk to Plaintiff. denies Defendant had any subjective awareness of the risk involved, and denies it proceeded with conscious indifference to the rights, safety or welfare of Plaintiff. Therefore, Defendant denies Paragraph VII(24). Fourth Cause of Action 25. Defendant, Indemnity Insurance Company of North America, denies
Paragraph VIII(25). 26. Defendant, Indemnity Insurance Company of North America, denies it violated the Texas Insurance Code and denies it violated the Deceptive Trade Practices Act. Therefore, Defendant denies Paragraph VIII(26).
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER Page 4
Damages 27. Defendant, Indemnity Insurance Company of North America, denies
Paragraph IX(27). 28. Defendant, Indemnity Insurance Company of North America, denies Plaintiff is entitled to damages from this Defendant; therefore, Defendant denies Paragraph IX(28). 29. Defendant, Indemnity Insurance Company of North, denies Plaintiff is
entitled to damages and to the recovery of prejudgment interest at the maximum legal rate, or any rate. Therefore, Defendant denies Paragraph IX (29). 30. Defendant. Indemnity Insurance Company of North America, denies it
violated the DTPA, and denies Plaintiff is entitled to attorney's fees, treble damages, quadruple damages under Section 416.002, or any other penalties provided by law. Therefore, Defendant denies Paragraph IX(30). 31. Defendant. Indemnity Insurance Company of North America, denies Plaintiff is entitled to the relief contained in his Prayer. Therefore, Defendant denies Plaintiff's Prayer. 32. 33. Defendant demands trial by jury. Defendant does hereby request that all proceedings in this cause number be reported by the official court reporter of the Court or his/her designee. Affirmative Defenses 34 Defendant asserts that the Plaintiff's conduct constitutes "comparative bad faith" and requests the Court to submit an issue to the trier of fact relating to the misconduct of the Plaintiff.
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER
Page 5
35.
Defendant
asserts Plaintiff's damages,
if any, and which are denied, are Act, which is
solely compensable
under the Texas Workers' Compensation
Plaintiff's exclusive remedy. 36. Defendant fees, specifically which pleads Plaintiff is not entitled to recover attorney's were incurred before the Division of Workers·
if any,
Compensation, 37.
Texas Department of Insurance.
Defendant pleads all appropriate statutes of limitation in this cause of action, and state Plaintiff's claims are time barred.
38.
Pleading in the alternative, Defendant denies Plaintiff is entitled to or should be awarded exemplary damages However, Defendant specifically asserts
all damage caps and limitations as allowed by Texas law, and specifically TEXAS CIVIL PRACTICEANDREMEDIESCODE §41.008, ET.SEQ. 39. Defendant asserts Plaintiff's claims are not properly before the Court. As such, this
Plaintiff has failed to exhaust his administrative Court lacks jurisdiction 40. over Plaintiff's claims.
remedies.
Defendant alleges the Plaintiff has failed to mitigate his damages, if any, and which are denied, and which he is claiming as a result of the incident in question. Prayer
WHEREFORE,
PREMISES CONSIDERED,
Defendant prays that upon final trial
hereof, Judgment be entered in favor of Defendant, and the Plaintiff recover nothing from Defendant. Defendant prays all costs be taxed against the Plaintiff, and for such other and
further relief, both at law and in equity, to which it may show itself justly entitled and for which it will ever pray.
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER
Page 6
Respectfully submitted, AYERS &A Y-ERS
/
De3nrre C. Ayers State Bar No. 01465820 Julie B. Tebbets State Bar No. 00793419 Ayers Plaza 4205 Gateway Drive, Suite 100 Colleyville, Texas 76034 (817) 267-9009 (817) 318-0663 Facsimile email: ::li~WE-: s@ay(~(§ii'" ~QP'
BY: ~--~--~----------------• <'
ATTORNEYS FOR DEFENDANT INDEMNITY INSURANCE COMPANY
CERTIFICATE
OF SERVICE
'\
This is to certify that a true and correct copy of the foregoing document has been forwarded to all known counsel of record, via certified mail, return receipt requested, on / f ,-1 the ,/ day 0 March, 2011. /
I
Deanne C. Ayers
I AMALIA RODRIGUEZ· MENDOZA, District Clerk Travis County, Texas, do heieby certify that this .s a true and correct copy as same appears of record in my office. Witness my hand and seal of office on -,It-/l AMALIA RODRIGUEZ· MENDOZA DISTRICT By Deputy: CLERK
7wUtlJ 17UJ1dtf/t/
DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER
Page 7

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