moya v. ace american insurance company et al complaint

8/12/2019 MOYA v. ACE AMERICAN INSURANCE COMPANY et al complaint

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EXHIBIT A

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Defendants Original Answer, Special Exceptions, Affirmative Defenses

and Motion To Abate Page 1

CAUSE 2014CCV-61240-4

EDWARD MOYA, IN THE COUNTY COURT

Plaintiff,

v. AT LAW NUMBER 4

ACE AMERICAN INSURANCE

COMPANY AND ESIS, INC., NUECES COUNTY, TEXASDefendants.

DEFENDANTS ORIGINAL ANSWER, SPECIAL EXCEPTIONS, AFFIRMATIVE

DEFENSES AND MOTION TO ABATE

COMES NOW, ACE American Insurance Company (ACE) and ESIS, Inc. (ESIS)

(collectively the Defendants) and file their Original Answer, Affirmative Defenses and Motion

to Abate to Plaintiffs Original Petition and respectfully state as follows:

GENERAL DENIAL

Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny

each and every allegation pled by Plaintiff Edward Moya (Plaintiff) and all subsequent

amendments and supplements thereto, and require that Plaintiff proves same by the standard of

proof provided by the Constitution and laws of this State.

SPECIAL EXCEPTIONS

1. Defendants specially except to Plaintiffs pleadings in that Plaintiff has failed to

satisfy Texas Rule of Civil Procedure 47, in that he has not included within his pleading a

statement of the maximum amount of the damages sought. Defendants request that the Court

order the Plaintiff to amend his pleadings to so specify.

2. Defendants specially except to Plaintiffs Original Petition in that Plaintiff has

failed to plead sufficient facts to demonstrate that Defendants owed a duty to Plaintiff. More

specifically, Plaintiff apparently seeks UIM or UM coverage from Defendants and his pleadings

are deficient in the following ways:

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a. First, in order to recover UIM or UM coverage, Plaintiff must plead and

prove that he is an insured under Policy number H08578254 (Policy) and that he is

entitled to payment under the Policy. There are no facts alleged that demonstrate why

Plaintiff is an insured under the policy. What is more, Plaintiff has failed to plead

sufficient facts demonstrating that ACE or ESIS owed him, much less violated, any

common law or statutory duty of good faith and fair dealing.

b. Second, in a UM/UIM matter, assuming that Plaintiff can demonstrate that

he is an insured under the Policy, he must then demonstrate the amount due under the

Policy, which amount is reduced by the amount recovered or recoverable from the insurer

of the underinsured motor vehicle. A UIM insurer has no contractual duty to pay benefits

until the liability of the other motorist and the amount of damages suffered by the insured

are determined. Again, there are no facts alleged that demonstrate that Ms. Benavides

liability has been established or a determination of the amount of the damages allegedly

suffered by Plaintiff. Third, third party tortfeasor (Ms. Benavides) is only underinsured if

the available proceeds of her liability insurance are insufficient to compensate for the

injured party's actual damages. There are no allegations supporting that Ms. Benavides

liability insurance is insufficient to compensate Plaintiff for his determined damages. In

summary, in order to recover UIM benefits, Plaintiff must establish that he had UIM

coverage, Ms. Benavides negligence proximately caused his damages and the amount of

his damages, and Ms. Benavides was underinsured.

c. Defendants specially except to Plaintiffs Petition because Plaintiff has not

plead the date or dates on which Defendants allegedly failed to act in accordance with

Plaintiffs requests or demands.

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Because Plaintiff has not plead any of these elements, Defendants specially except to

Plaintiffs Original Petition and pray that the Court order Plaintiff to re-plead his Petition

alleging facts that eliminate the deficiencies set forth in paragraphs 1. and 2. or, in the event

Plaintiff does not replead within seven (7) days of any order of the Court to do so, dismiss this

Lawsuit.

AFFIRMATIVE DEFENSES

1. Defendants affirmatively assert that all conditions precedent have not been

satisfied, including but not limited to a finding of negligence by the driver of the vehicle,

Viktoria Benavides, who allegedly struck Plaintiff Edward Moya from behind and the amount of

the damages, if any. Consequently, there are no findings or conclusions of law that Ms.

Benavides is liable for the incident that forms the basis of this lawsuit, that there are any

damages proximately caused by the incident, that Plaintiff is underinsured or uninsured motorist

under the Policy, or that there is any UM/UIM coverage due Plaintiff.

2. Defendants affirmatively assert the Plaintiffs claims are barred, in whole or in

part, by the applicable statute of limitations.

3. Defendants affirmatively assert that settlement of the Plaintiffs claim against

Viktoria Benavides was without the consent of AAIC and without examination of Ms.

Benavides ability to pay a judgment in excess of her automobile liability insurance. As such,

Plaintiff has violated a term of the insurance policy and AAIC has been prejudiced by the

conduct of Plaintiff.

4. Defendants affirmatively deny any and all claims by Plaintiff that either

Defendant engaged in bad faith or extra-contractual conduct. At the most, if any duties were

owed, which Defendants deny, Defendants assert that this matter involves a bona fidedispute.

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MOTION TO ABATE

1. Plaintiff asserts extra-contractual damages against Defendants. In a case where an

insured asserts a claim for uninsured/underinsured benefits, abatement of the extra-contractual

claims is required in most instances. See In re United Fire Lloyds, 327 S.W.3d 250, 257

(Tex.App.-San Antonio 2010, orig. proceeding); U.S. Fire Insurance Co. v. Hon. Richard

Millard, 847 S.W.2d 668, 675 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding).

Abatement is required because of the unique nature of an uninsured/underinsured case. In such a

case, an insurer's contractual duty to pay damages to an insured arises only if the insured is

legally entitled to recover from the uninsured/underinsured motorist. See Brainard v. Trinity

Universal Ins. Co., 216 S.W.3d 809, 815 (Tex.2006), citingHenson v. S. Farm Bureau Cas. Ins.

Co., 17 S.W.3d 652, 653-54 (Tex.2000).

2. An insured is legally entitled to recover from the uninsured/underinsured

motorist only if the insured (in this case allegedly the Plaintiff) establishes the liability and

underinsured status of the other motorist and the amount of damages suffered by the insured. Id.,

citingHenson, 17 S.W.3d at 653-54. If an insured is unable to so establish, an insurer should

not be required to put forth the effort and expense of conducting discovery, preparing for a trial,

and conducting voir dire on bad faith claims that could be rendered moot by the portion of the

trial relating to UIM benefits. In re United Fire Lloyds, 327 S.W.3d at 256. Texas insurance

law generally conditions recovery for bad faith and extracontractual claims on a recovery for

breach of the insurance contract itself. Smith v. Allstate Ins., No. H-03-0651, 2007 WL 677992,

at *5 (S.D.Tex. Feb. 27, 2007), citing Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d

919, 922 (Tex.2005);Liberty Nat'l Fire Ins. v. Akin, 927 S.W.2d 627, 629 (Tex.1996).

3. There has been no judicial determination in this case that the underinsured

motorist who struck Plaintiff was both at fault and underinsured. Because no such determination

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has been made, it has not been established that Plaintiff is legally entitled to recover from the

underinsured motorist. Until Plaintiff establishes that he is legally entitled to recover from the

underinsured motorist who struck him, AAIC is under no contractual duty to pay

uninsured/underinsured benefits to Plaintiff. ESIS has no contractual or other obligation or duty

to Plaintiff as it is merely the third party administrator for the Policy.

Accordingly, abatement of Plaintiffs extra-contractual claims is required.

WHEREFORE, Defendants ACE American Insurance Company and ESIS, Inc.

respectfully pray that the court abate Plaintiff Edward Moyas extra-contractual claims, the Court

order Plaintiff to re-plead his Petition to satisfy the deficiencies set forth in Defendants Special

Exceptions, or in the alternative dismiss the lawsuit should Plaintiff fail to re-plead, and that

upon final hearing hereof, that Plaintiff take nothing and the Court enter judgment against

Plaintiff and in favor of Defendants, and that the Defendants recover their costs, fees, expenses,

and for such other and further relief, both at law and in equity, to which the Defendants may

justly be entitled.

Respectfully submitted,

_________________________________Alicia G. Curran

State Bar No. 12587500

COZEN OCONNOR1717 Main Street, Suite 3400Dallas, Texas 75201-7335

Telephone: (214) 462-3000

Facsimile: (214) 462-3299

ATTORNEYS FOR DEFENDANTS

ACE AMERICAN INSURANCE

COMPANY AND ESIS, INC.

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CERTIFICATE OF SERVICE

I hereby certify that on this 21stday of July, 2014, a true and correct copy of the above

and foregoing was sent to counsel of record, via certified mail/return receipt requested asfollows:

Thomas J. HenryJ. Scott Frederick

Law Offices of Thomas J. Henry

521 Starr StreetCorpus Christi, Texas 78401

Attorneys for Plaintiff

Alicia G. CurranLEGAL\19564814\1 00011.0020.000/352251.000

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Proof of Submission

Submission ID: 1890400

Submission Date and Time: 7/21/2014 2:02:39 PM

Case Title: Eda!d Mo"a #$ %CE %me!i&an Insu!an&e Co$ and ESIS' In&$

(u!isdi&tion: )ue&es Count" * Count" Cou!t

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Case Cate+o!": Ci#il * ,t-e! Ci#il

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Pa"ment %&&ount: CMoone" %me

Matte! )umbe!: 3221

Cause )o: 2014CC*1240*4

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Case Information

Party Type Name Our Client

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