Received and E-Filed for Record

5/26/2020 12:00 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Vanessa Medina

CAUSE NO. 20-04-04536

JOHN JANSEN § IN THE DISTRICT COURT OF

§
V. § MONTGOMERY COUNTY, TEXAS
§
§
SAFECO INSURANCE COMPANY OF §
AMERICA AND LIBERTY COUNTY §
MUTUAL INSURANCE COMPANY § 284th JUDICIAL DISTRICT
______________________________________________________________________________
DEFENDANTS’ ANSWER TO PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Defendants, Safeco Insurance Company of America and Liberty County Mutual

Insurance Company (“Defendants”), file this Answer to Plaintiff’s Original Petition, and would

respectfully show the Court as follows:

I.

GENERAL DENIAL

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

each and every, all and singular, the allegations set forth in Plaintiff’s Original Petition and

demand strict proof thereof.

II.

SPECIFIC DENIALS

2. Defendants specifically deny Plaintiff’s allegations, if any, of Negligence, Gross

Negligence, Breach of Contract, claims for Uninsured and Underinsured Benefits, request for

Declaratory Relief, violations of the Texas Insurance Code, violations of The Texas Deceptive

Trade Practices Act, exemplary damages, recovery of attorney’s fees and all other causes of

action alleged in Plaintiff’s Original Petition.

 3. Defendants further specifically deny that the alleged acts and omissions of

Defendants or of the underlying tortfeasor(s) were negligent and/or a proximate and producing

cause of the Plaintiff’s alleged injuries and/or damages, if any.

4. By way of further answer, Defendants specifically deny that all conditions

precedent to Plaintiff’s claims and/or causes of action have occurred in the following respects:

a) There has been no legal determination that Defendants are under any

contractual duty to pay benefits, in that Plaintiff has not obtained a

judgment establishing the liability and uninsured/underinsured status of

the alleged tortfeasor(s). Accordingly, there presently exists no legally

cognizable basis for Plaintiff’s claims and causes of action. See Brainard

v. Trinity Universal Ins. Co., 216 S.W. 3d 809, 818 (Tex. 2007).

b) Plaintiff has not given Defendants notice in writing in the form and

manner required by the Texas Insurance Code.

c) With respect to any potential claim for attorney’s fees resulting from any

alleged breach of contract, Plaintiff has not given Defendants notice in the

manner required by § 39.002 of the Texas Civil Practice & Remedies

Code.

5. Defendants specifically deny that at the time of the accident made the basis of the

underlying lawsuit, the alleged tortfeasor(s) was an “underinsured” or “uninsured” motorists

within the meaning of the applicable policy.

6. Defendants specifically deny that appropriate pre-suit notice was given, in

accordance with Texas law, and deny Plaintiff’s right to recover attorney’s fees, expenses, and

costs in this action. In the alternative, Defendants would show that Plaintiff’s presentment of his

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claim constitutes an excessive and unreasonable demand and, therefore, Plaintiff is precluded

from recovery of attorney’s fees and expenses.

7. Defendants specifically deny that they committed any wrongful acts or that they

acted “knowingly” or “intentionally” as those terms are defined by Section 541 of the Texas

Insurance Code.

III.

AFFIRMATIVE DEFENSES

8. Defendants would show that no act or omission of Defendants or the underlying

tortfeasor(s) were a proximate cause of any injury or damage alleged by Plaintiff.

9. With regard to Plaintiff’s extra-contractual claims, Defendants assert that there

presently exists no contractual duty to pay the underlying claim in that Plaintiff has not

established the liability or uninsured/underinsured status of the alleged tortfeasor(s).

10. Defendants hereby assert the protection afforded by § 41.0105 of the Texas Civil

Practice & Remedies Code limiting recovery of Plaintiff’s purported medical expenses to those

actually paid or incurred by or on his behalf.

11. Defendants further plead the affirmative defense of a bona fide coverage dispute

with respect to Plaintiff’s claims and causes of action for extra-contractual damages.

12. In the event Plaintiff prevails on his claims at trial, Defendants plead that they

should receive an offset or credit for any monies Plaintiff and all those seeking relief under him

have been paid on his claims. This includes but is not limited to a credit for money Plaintiff

received from settling Defendant(s), prior insurance payments, prior payments received from

other insurance companies or any other monetary credit or payment Plaintiff received as a result

of the damages he alleges in this lawsuit.

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 13. Plaintiff has not complied with his duties after loss as required by the subject

insurance policy on which she bases her breach of contract claims and all other claims and/or

causes of action.

14. Defendants assert the affirmative defense of failure to comply with all condition’s

precedent with respect to Plaintiff’s claims for attorney’s fees.

15. Pleading further, if same be necessary, Defendants deny any liability to Plaintiff

for alleged extra-contractual damages. Defendants deny they acted fraudulently, maliciously,

knowingly, intentionally, or in any manner that would entitle Plaintiff to recover exemplary

damages. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997). Defendants further

plead that any award to Plaintiff for exemplary, additional, treble, or punitive damages or

penalties is limited as prescribed by Chapter 41 of the Texas Civil Practice & Remedies Code,

and Texas Insurance Code Sections 541.152 and 542.060.

16. Plaintiff’s injuries, losses, and damages, if any, were the result, in whole or in

part, of pre-existing or subsequent conditions, and were not the result of any act or omission on

the part of Defendants or the alleged tortfeasor(s).

17. Defendants also plead the affirmative defense of excessive demand with respect

to any claim for attorneys’ fees.

18. Plaintiff has failed to mitigate his damages in that he failed to take reasonable

precautions to protect himself and to mitigate his injuries and monetary losses.

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 IV.

REQUEST FOR DISCLOSURE

19. Pursuant to the Texas Rules of Civil Procedure, Defendants request that Plaintiff

disclose, within thirty (30) days of service of this request, the information and material described

in Texas Rules of Civil Procedure 194.2(a)-(l).

WHEREFORE, PREMISES CONSIDERED, Defendants, Safeco Insurance Company

of America and Liberty County Mutual Insurance Company pray that upon final hearing of this

cause, the Court enter Judgment that Plaintiff take nothing by way of his claims and causes of

action against Defendants, that all costs of court be assessed against Plaintiff, and for such other

and further relief, at law or in equity, as to which Defendants may show themselves to be justly

entitled.

Respectfully submitted,
SHEEHY, WARE & PAPPAS, P.C.

/s/ J. Mark Kressenberg

J. Mark Kressenberg
State Bar No. 11725900
[email protected]
Edward C. Kiss
State Bar No. 24064284
[email protected]
2500 Two Houston Center
909 Fannin
Houston, Texas 77010
713-951-1000
713-951-1199 – Facsimile

ATTORNEYS FOR DEFENDANTS SAFECO

INSURANCE COMPANY OF AMERICA AND
LIBERTY COUNTY MUTUAL INSURANCE
COMPANY

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above foregoing instrument has been
forwarded via certified mail, facsimile, messenger or e-filing pursuant to the Texas Rules of
Civil Procedure on this the 25th day of May, 2020 to the following counsel of record:

Kevin J. Connolly
THE CONNOLLY LAW FIRM PLLC
1632 W. Alabama Street
Houston, Texas 77006
[email protected]

/s/ J. Mark Kressenberg

J. Mark Kressenberg/Edward C. Kiss
3825194