Filed

11 March 11 P12:56
Amalia Rodriguez-Mendoza
District CIeri<
Travis District
D-1-GN-10-003685
Jury Trial
Demanded
CAUSE NO. D-1-GN-10-003685

JAMES MATHEWS § IN THE DISTRICT COURT

§
§
VS. § 419TH JUDICIAL DISTRICT
§
§
INDEMNITY INSURANCE §
COMPANY OF NORTH AMERICA § TRAVIS COUNTY, TEXAS

DEFENDANT'S ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,

Defendant 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, Indemnity Insurance Company of North America, denies

Paragraph 1(2). Defendant is without knowledge and information as to

whether or not discovery in this cause of action is appropriate under Level

2 of Rule 190.3 of the Texas Rules of Civil Procedure, as alleged in

paragraph 1 of Plaintiff's Original Petition.

DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER

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 Parties

2. Defendant, Indemnity Insurance Company of North America, is without

sufficient information to admit or deny the capacity of Plaintiff. Therefore,

this Defendant denies Paragraph II (3).

3. Defendant, Indemnity Insurance Company of North America denies

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 75201.

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. Defendant denies all claims in

Paragraph 111(5).

6. Defendant denies all claims in Paragraph 111(6).

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

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 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, denies

Paragraph V(13).

14. Defendant, Indemnity Insurance Company of North America, 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

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 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. Therefore.

Defendant denies Paragraph VI(22).

Third Cause of Action

23. Defendant, Indemnity Insurance Company of North America, denies

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

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 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. Defendant demands trial by jury.

33. 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

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 35. Defendant asserts Plaintiff's damages, if any, and which are denied, are

solely compensable under the Texas Workers' Compensation Act, which is

Plaintiff's exclusive remedy.

36. Defendant specifically pleads Plaintiff is not entitled to recover attorney's

fees, if any, which were incurred before the Division of Workers·

Compensation, Texas Department of Insurance.

37. 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.

Plaintiff has failed to exhaust his administrative remedies. As such, this

Court lacks jurisdiction over Plaintiff's claims.

40. 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

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 Respectfully submitted,

AYERS &A Y-ERS

/

BY: ~--~--~-----------------
• <'

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'

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 ,/ I day 0 March, 2011. /

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 CLERK
By Deputy: 7wUtlJ 17UJ1dtf/t/

DEFENDANT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S ORIGINAL ANSWER

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