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IN THE COUNTY COURT AT LAW NUMBER TWO
EL PASO COUNTY, TEXAS
DONALD L. THOMPSON,
Plaintiff, Pro-Sevs. Cause No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON,
DefendantsPLAINTIFF'S SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Donald L. Thompson, Plaintiff, Pro-Se, complaining of Allstate Insurance Company and Robert Wilson, Defendants and for cause of action shows the following:
I.
Plaintiff is an individual now residing in Guadalupe County, Texas. Defendant, Allstate Insurance Company is a Illinois corporation, duly authorized to do business in this state. As such, it is empowered to, including, without limitation, setting of rates, settlement of losses, compromise of claims, cancellation of contracts and payments of benefits. Accordingly, Allstate Insurance Company is deemed, as a matter of law, to be a party to the contract and subject to the duties and obligations alleged herein. Defendant Robert Wilson is an individual whose residence is unknown to Plaintiff. Plaintiff will request leave of court to amend this Second Amended Petition to state the correct address of said Defendant, when ascertained through the Discovery Process. Plaintiff is informed and believes and thereon alleges that each of the Defendants named was responsible for the injuries and damage suffered by Plaintiff as alleged in this Second Amended Petition. Both defendants may be served with citation through their attorney, Mr. Robert E. Hedicke, at the Law Offices of Victor F. Poulos, P.C., 1520 North Campbell Street, El Paso, Texas 79902.
II.
Venue is proper in the county of suit under Texas Civil Practices and Remedies Code S15.037, as Defendant Allstate Insurance Company has a representative or agent in the county of suit.
III.
Prior to the date of Plaintiff's alleged loss, Defendant Allstate, by and through its agent, issued an insurance policy naming Plaintiff as the insured and insuring the Plaintiff's property located at 4005 N.E. 17th, Amarillo, Texas against loss by fire, among other things for a period beginning October 2, 1991 to October 2, 1992. Pursuant to the terms of the policy, Plaintiff had insurance protection up to $48,000.00 for any loss resulting from damage to the building insured. The insurance policy, being numbered by Defendant Allstate as Policy number 216719784, a true and correct copy of which is attached to Plaintiff's Original Petition as Exhibit "A" and incorporated by reference as if fully copied and set forth at length. The policy was at all times material to this action in full force and effect. The subject action concerns claims made under Residential Fire Policy coverage provided by Allstate and subsequently denied by defendant Allstate by and through Defendant Robert Wilson, alleged as a result of plaintiffs refusal to fully cooperate with Defendants investigation. Plaintiff was at all times mentioned herein the owner of the insured property, until Defendants failure to pay stated claim resulted in Plaintiff's loss of property and loss of rental income due to foreclosure.
IV.
On November 26, 1991, the building at 4005 N.E. 17th, Amarillo, Texas insured by defendant Allstate, unbeknownst to Plaintiff until the following day, sustained damage as a result of a fire. The reasonable and necessary cost of repairing the damage to said property to like condition would have been $43,000.00. To replace said property is $48,000.00. Loss of income from said property being $500.00 per month.
V.
On or about November 28, 1991, Plaintiff contacted Defendant Allstate and advised them of the fire damage to above mentioned property, and over the next few weeks spoke and met with Defendant Robert Wilson to accomplish filing of claim, statements, and required paperwork. On January 20, 1992, Plaintiff met with Defendant Robert Wilson and with Mr. Lynn Tate, Attorney at Law, at the Law Offices of Underwood, Wilson, Berry, Stein & Johnson in Amarillo, Texas, to grant Examination Under Oath, as required by line 77-81 of insurance policy issued by Defendants. On or about February 7, 1992, February 13, 1992, and February 20, 1992, Plaintiff informed Defendants that Plaintiff had provided all requested information that he could and that the remainder could not be found or located. On or about April 21, 1992, Defendant Robert Wilson contacted Amarillo Fire Marshall's office and initiated or was actively instrumental in procuring the malicious arrest and prosecution of the Plaintiff in a criminal action. On December 20, 1994, the malicious criminal action against the Plaintiff terminated in Plaintiff's favor. That (a) Defendant initiated or was actively instrumental in procuring the arrest and prosecution of the Plaintiff in a criminal action, (b) The criminal action against the Plaintiff terminated in Plaintiff's favor, and (c) The malicious actions of the Defendant caused Plaintiff to suffer injury, loss or damage, constitutes a claim of malicious prosecution. On or about the week of November 19, 1994, Plaintiff contacted Allstate Insurance Office and requested that claim be settled since Plaintiff told Allstate representative that criminal prosecution would be terminated in Plaintiff's favor and that Plaintiff wanted Defendant Allstate to settle the claim on the property at 4005 N.E.17th. At that time, Defendant told Plaintiff that they were denying the claim and had no intention to settle with Plaintiff, and that Defendants didn't want to discuss it any further. This final denial, in November 1994, of Plaintiff's claim constitutes the breach of the implied covenant of good faith and fair dealing and is the cause of this suit by Plaintiff. Despite the fact that all conditions precedent to Plaintiff's recovery have been performed or have occurred, Defendant Allstate has failed and refused to pay Plaintiff in accordance with its contract obligation. Defendant Allstate has failed to state a valid reason for its denial of liability under Plaintiff's policy of insurance.
VI.
Defendant Allstate delayed payment of Plaintiff's claim for more than 60 days after it received all required and requested items, statements, and forms. Therefore, Plaintiff is entitled to recover from Defendant Allstate the additional sum of 12 percent per year of the amount payable under the policy.
VII.
Because Plaintiff is a person entitled to make a direct claim under the terms of the policy issued by Defendant Allstate and because the claim submitted by Plaintiff for damage to the insured property by fire is covered under the terms of the policy issued by Defendant Allstate's claim representative, Defendants owed Plaintiff duties of good faith and fair dealing with respect to Plaintiff's claim. Defendants breached those duties by refusing to pay benefits due when Defendants knew or should have known that there was no reasonable basis for denial.
VIII.
In particular, the conduct of the Defendants was tortuous in that, among other things, Defendant Allstate, by and through Defendant Robert Wilson, denied the claim for the damage to Plaintiff's property on the grounds that the fire was started intentionally by the Plaintiff without a complete and full investigation of the facts. This will be shown by statements made by Defendant Robert Wilson to Plaintiff, within hearing of 2 witnesses.
(A). That Plaintiff was only person that had anything to gain from damage to property.
(B). That Defendant Wilson didn't care if Plaintiff caused fire or not, that if Defendants wanted Plaintiff guilty, Plaintiff would be found guilty.
IX.
As a proximate result of the tortuous conduct of the Defendants, Plaintiff has suffered not only the loss of the sums due and owing under the policy, but also severe mental anguish and loss of the insured property through foreclosure, and loss of rental income of $500.00 per month, all in an amount within the jurisdictional limits of this Court.
X.
Furthermore, the conduct of the Defendants was malicious, fraudulent, or done with actual conscious indifference to the rights, safety, or welfare of Plaintiff so as to entitle Plaintiff to an amount for exemplary damages in an amount to be determined by the trier of fact.
FIRST CAUSE OF ACTION
( Declaratory Relief )
Plaintiff refers to and incorporates by reference sections 1 through 10 inclusive, as though fully set forth herein, at length. An actual and justifiable controversy has arisen and now exists between the parties herein which require a judicial declaration by the court. Plaintiff contends, and is informed and believes that the defendants dispute one or more of the following :
( A. ) Whether plaintiff is entitled to coverage under the contract he originally agreed to and paid the premium in full, on or about October 2, 1991 , with coverage for fire loss, shown at the time to be policy number 216719784 with an effective date of October 2, 1991 through October 2, 1992, attached to Original Petition as Exhibit "A".
( B. ) Whether the insurance contract in force is a contract of adhesion mandating its terms to be strictly interpreted and its exclusions and ambiguities to be liberally interpreted and applied. Plaintiff desires a judicial determination of Defendant Allstate’s rights and duties under the Allstate policy, and a declaration that:
A valid contract of insurance existed between Allstate and Plaintiff under policy number 216719784, with fire coverage.
That the terms of said contract were in effect from October 2, 1991 to October 2, 1992.
A judicial determination is necessary and appropriate at this time under the circumstances in order that plaintiff may ascertain his rights. Plaintiff will otherwise suffer great financial harm.
SECOND CAUSE OF ACTION
(Breach of Contract)
Based upon the insurance contract which was entered into between Allstate Insurance Company and Donald and Barbara L. Thompson (See Exhibit "A" attached to Original Petition), Plaintiff made all premium payments as required, therefore fulfilling his obligations under the agreement. Based upon the insurance agreement as entered into and noted above, Allstate undertook to owe an obligation to pay damages with respect to any fire loss incurred by Plaintiff which was covered by the subject insurance agreement. That Defendant Robert Wilson, was at all times relevant to this action the representative of Allstate Insurance Company, as established either directly or ostensibly, as stated more fully in section 3 of this First Amended Petition, and owed Plaintiff the obligation to act as the continuing intermediary between Plaintiff and Defendant Allstate and to conduct all such activities in good faith and in a competent manner. That following the fire of November 26, 1991, when Plaintiff reported to Allstate through Robert Wilson the damage to the structure, and damaged miscellaneous personal property contained within the property, Defendants Allstate and Robert Wilson owed an obligation to Plaintiff to fully investigate and ascertain whether or not the damages Plaintiff had reported were all that had been sustained. Plaintiff performed the duties imposed by the contract by reporting damage to Allstate, by and through Robert Wilson on or about November 28, 1991. Defendants, and each of them breached their duties by failing to act timely and favorably on Plaintiff's claim, and there from wrongfully, maliciously and oppressively, withheld payment of benefits, which is a direct and proximate cause of plaintiffs damages. Plaintiff has sustained compensatory damages and incurred attorney fees for the collection of the benefits owed under the contract in an unknown amount. That when Plaintiff advised Allstate through its representative, Robert Wilson, about malicious threats to destroy the inside of the property by the renter of the property, and about the contact by Plaintiff with Justice Of The Peace, Haven Dicert, and with Judge Cliff Roberts, both of Amarillo, Texas, about this same matter, Allstate and Robert Wilson owed an obligation to Plaintiff to verify this information and to use it to Plaintiff's benefit. That Defendant Allstate, by and through it's representative, Robert Wilson, owed Plaintiff an obligation to fully and completely investigate all the details with respect to the false statements of Rebecca Hernandez and other members of her family which were reported to Defendant by Plaintiff on or about May 6, 1992. This failure by Robert Wilson, to follow through with any investigation to determine these facts and to ascertain the reason for Rebecca Hernandez to change her statement after telling Defendant Allstate for four months that she didn't know anything about the subject fire, constitutes breach of contract as referred to in section VIII. above. That by acting in the manner in which has been previously set forth in this Second Amended Petition, Defendant Allstate, by and through it's representative, Robert Wilson, intentionally failed to properly investigate these events and reached the erroneous conclusion that Plaintiff had something to do with or had knowledge of subject fire, thereby breaching the insurance contract, whereby Plaintiff was denied the benefits under the subject agreement to which Plaintiff was entitled. That as a direct result of the defendants willful, malicious and oppressive handling leading to the defendants breach of contract as set forth above, Plaintiff has suffered damages in the amount of $48,000.00, which should be afforded to Plaintiff to fully, completely and properly replace insured property. Plaintiff has also incurred loss of rental income of $500.00 per month and will furnish the court with an accumulative total of this amount at time of trial, and attorney fees in an amount not yet known, to enforce defendants duties under the contract.
THIRD CAUSE OF ACTION
(Breach of Fiduciary Duty)
That a special relationship was created between Plaintiff and Defendant Allstate Insurance Company with regard to the servicing of the insurance policy from Allstate on the basis that Allstate was an insurance company, whereby fiduciary obligations were owed to Plaintiff, including but not limited to professionally and competently servicing said insurance policy and communicating further needs to Plaintiff which would develop in relation to the policy. An Integral part of said fiduciary relationship is the high degree of trust one places in the fiduciary agent. In the instant case plaintiff placed that degree of trust necessary and in return expected that relationship to yield the benefits promised by defendants. Instead Plaintiff was maliciously denied his right under his policy which was a result of the fiduciary agents failure to exercise the professional care required in the handling of the relationship. Plaintiff was deceived and never received what was promised and paid for, all to Plaintiff's detriment. That with respect to the fiduciary obligations as owed between Plaintiff and Allstate Insurance Company, as described above in this cause of action, Plaintiff fulfilled all of his obligations hereunder throughout all times relevant to this complaint. That with respect to the fiduciary obligations as owed between Plaintiff and Allstate Insurance Company, as described above in this cause of action, Defendants owed an obligation to Plaintiff to act at all times in a competent and professional manner with regard to providing services to Plaintiff in relation to the subject insurance policy. That by failing to fully and appropriately investigate the complaints made by Plaintiff following the fire and loss of property, Allstate, breached their fiduciary obligation to perform their services to Plaintiff in a competent and professional manner, placing their financial interests ahead of those interests of plaintiff. That by telling Plaintiff that he was the only one that had anything to gain from the loss, Allstate, breached their fiduciary obligation as owed to Plaintiff, in that such advice, without performing any further investigation into potential damage, was incompetent, unprofessional and below the standards of the insurance industry. So far below standards that the behavior constitutes malicious and oppressive actions. In normal Fiduciary relationships the parties agree to act with fairness and good faith toward the other, and that neither party will take any action to prevent the other from reaping the benefits of the relationship. Defendants and each of them violated this trust from the initial insurance binder to the present day. That plaintiff is informed and believes and thereon alleges that Defendants failed to fully investigate and service claim as made by Plaintiff to Defendants, despite an obligation to do so pursuant to the fiduciary obligation as owed to Plaintiff by Defendants. As a direct and proximate result of Defendants conduct and breach of fiduciary obligations, have caused Plaintiff to suffer monetary damages in that Plaintiff has been denied coverage for fire damage, property loss, and loss of rental income under the subject policy by Allstate Insurance Company, which should be afforded to Plaintiff to fully, completely and properly replace property, as the insurance agreement constituted such coverage. This amount is presently known to plaintiff to be $48,000.00 for property loss and loss of rental income at $500.00 per month. Plaintiff has incurred Attorney fees and additional living expenses due to the untenability and loss of Plaintiff’s property, all in amounts yet to be determined. Plaintiff will seek leave to amend this Second Amended Petition when these amounts are ascertained.
FOURTH CAUSE OF ACTION
( Breach of Implied Covenant of Good Faith and Fair Dealing )
That the relationship as entered into between Plaintiff and Defendant constitutes that wherein the parties owe each other an implied covenant to conduct themselves with good faith and fair dealing under the laws of the State of Texas, whereby the parties agree to act with fairness and good faith toward the other, that neither party will take any action to prevent the other from reaping the benefits of the relationship. That Defendant Allstate Insurance Company has breached the covenant of good faith and fair dealing with respect to Plaintiff, in that the claim as presented by Plaintiff shows it was proper and that despite the fact that Plaintiff had informed Allstate Insurance Company of damage immediately following the fire and following up thereafter on multiple occasions with additional information as deemed necessary by Plaintiff or demanded by Allstate's representative Robert Wilson, that neither Allstate, nor Robert Wilson, undertook to further investigate the information supplied by Plaintiff after original denial of claim, but instead advised Plaintiff that any information he had was not wanted and would not be responded to. That the insistence by Allstate Insurance Company that Gloria Thompson take an Examination Under Oath when subject policy specifically states that only the insureds are required to do so, and the denial of Plaintiff's claim because of same is the direct result of Allstate's failure to properly and professionally handle Plaintiff's claim. That, as described above, and through the subsequent intentional misinterpretation and misrepresentation of the information which was compiled through the claim investigation by Allstate and Robert Wilson with regard to the claim made by Plaintiff in November, 1991, and particularly to the reliance upon statements taken from Rebecca Hernandez and family members, whereby Defendants intentionally failed to investigate on Plaintiff's behalf, is also the direct result of Defendants failure to properly and professionally handle Plaintiff's claim. Plaintiff is now aware of facts that have been stated previously herein, that demonstrate defendants intentional and malicious actions to cause plaintiff irreparable financial harm. Defendants Allstate and Robert Wilson were fully aware, that the policy clause they relied upon in denying plaintiff's claim was improper under any circumstance since said clause only disallows claim if insured refuses to take An Examination Under Oath, which, was fully complied with in this claim. That the refusal of Defendants to properly and professionally read the wording of their own issued policy, and to instead dismiss the claim without relying on same resulted in the wrongful and improper denial of the claim as brought by Plaintiff. That the above described acts as performed by Defendants were at all times material to this First Amended Petition. As a direct and proximate result of the refusal of the Defendants, to act within the requirements of good faith and fair dealing as provided by Texas law, Plaintiff has been deprived of the insurance coverage to which he is entitled, in an amount presently known to be $48,000.00 for property loss, and loss of rental income in the amount of $500.00 per month plus pre-judgment interest at the rate of 12%, until the date of judgment on fire claim, and a balance of $1700.00 from previous water damage claim which Defendants refused to pay. In doing the acts as alleged above, Plaintiff has suffered general damages in an amount to be proven at the time of trial. In doing the acts as alleged above, Defendants have acted with such oppression, fraud, and malice so as to entitle Plaintiff to an award of punitive damages in an amount to be determined by the trier of fact.
FIFTH CAUSE OF ACTION
(Fraud/Intentional Misrepresentation)
That said statements as provided to Amarillo Fire Marshall thru Defendants by Rebecca Hernandez and other family members, were false, made out of spite, and to retaliate for actions brought about by Plaintiff who had just days prior to said statements, filed criminal charges on Rebecca Hernandez. That Plaintiff is informed and believes that Defendant Robert Wilson knew that statements given by Rebecca Hernandez and other family members were false, as he has been an insurance adjuster in the State of Texas with regard to property insurance policies, and should know and understand the intricacies of and obligations owed as an adjuster, which includes the obligation to fully, professionally, and competently investigate on behalf of Plaintiff the validity of statements given to him by a party that previously denied any knowledge of same, especially if they are used for denial of a claim or malicious prosecution, or, as in this case, both. Defendants willfully, maliciously, and with evil intent placed their financial interests ahead of those interests of their insured, a man with substantially less resources. That Plaintiff, as having no experience with fire claims prior to the subject incident, justifiably relied upon the fact that "YOU'RE IN GOOD HANDS WITH ALLSTATE" as advertised by Defendants, and it was Defendants who purportedly possessed the degree and skill of competent professionals. That as a direct and proximate result of the fraud and deceit perpetuated by Defendants as herein alleged above, Plaintiff has suffered damages through the refusal of Defendants to provide the insurance claims to which Plaintiff is entitled, in an amount which is presently unknown, but will be provided to the court, at time of trial. As a direct and proximate result of said Defendants' fraud and deceit, as alleged above, Plaintiff has suffered general damages in an amount to be shown according to proof. In so doing the acts as alleged, including but not limited to, attempting to intentionally defraud Plaintiff by denying the claim for their own financial gain, Defendants acted with such oppression, fraud, and malice as to entitle Plaintiff to an award of punitive damages in an amount to be decided by the trier of fact.
SIXTH CAUSE OF ACTION
(Negligent Misrepresentation )
With respect to the facts that have been stated previously herein, that demonstrate defendants intentional and malicious actions to cause plaintiff irreparable financial harm. Defendants Allstate and Robert Wilson were fully aware, that the policy clause they relied upon in denying plaintiff's claim was improper under any circumstance since said clause only disallows claim if insured refuses to take An Examination Under Oath, which, was fully complied with in this claim, and by stating otherwise was said without reasonable basis for belief that it was true. That Defendants through the professional relationship which existed between them and Plaintiff, owed to Plaintiff the duty and obligation to fully and completely adhere to the provisions of the policy and should have understood that The Court must interpret the policy language as a reasonable person in the insureds position. That by failing to adhere to policy provisions as explained above, results in Defendants breaching their duty to Plaintiff to act in accordance with that set forth above, thereby constituting negligent behavior. That as a direct and proximate result of the actions of Defendants, and each of them, by reason of the herein above described negligent acts, Plaintiff has been damaged in a sum presently unascertained, but to be proven at the time of trial. That as a further, direct and proximate result of the above described actions of Defendants, and each of them, Plaintiff has suffered emotional anxiety, worry, distress, humiliation, and personal injury , all to his general damages, in an amount which has not been presently ascertained, but will be proven at the time of trial.
SEVENTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
That beginning immediately following the claim filed by Plaintiff in November, 1991, Defendants, and each of them, began a knowing and intentional scheme to deprive Plaintiff of insurance coverage to which he was entitled, thereby intentionally inflicting emotional distress upon Plaintiff by denying his claim, since Defendants, and each of them, knew that there was no rational basis for denying said coverage. That the conduct of Defendants to intentionally deny that which they know to be true is done with the intent to deny Plaintiff the insurance coverage to which he is entitled. That Defendants have perpetuated the scheme to cause Plaintiff severe emotional distress through the continued denial of Plaintiff's claim, and loss of his property and loss of rental income, and that Defendants continue to perpetuate the scheme to cause Plaintiff severe emotional distress by refusing to settle with Plaintiff when a review of the facts show no reasonable interpretation whatsoever upon which to base a denial. That Defendants continue to cause Plaintiff severe emotional distress through the continual turmoil which he has been put through and during the continued wrongful denial of his claim. That as a direct and proximate result of the conduct of the Defendants, and each of them, as described herein, proximately and directly caused Plaintiff to suffer severe emotional distress, and continues to do so, and Plaintiff is entitled to be compensated in an amount as general damages, according to proof at the time of trial. That the above described wrongful conduct of Defendants was malicious, oppressive and done with conscious disregard of Plaintiff's rights and well being, justifying the imposition of punitive damages and exemplary damages in such sum as the trier of fact shall deem appropriate.
EIGHTH CAUSE OF ACTION
( Negligent Infliction of Emotional Distress)
Defendants have breached the duty owed to Plaintiff to act in a reasonable and competent manner, thereby constituting negligence. The conduct of the Defendants, and each of them, as described hereinabove, have proximately and directly caused, and continue to cause, Plaintiff to suffer severe emotional injury and upset in that Defendants, and each of them, through the negligent conduct as set forth above, have shown no care or regard to Plaintiff's well being. That as a direct and proximate result of the above described conduct of Defendants, and each of them, Plaintiff is entitled to be compensated in an amount for same according to proof, at the time of trial.
NINTH CAUSE OF ACTION
( Violation of Insurance Code)
The subject action concerns the unfair, unlawful, fraudulent, deceptive, and finally, the untimely business practices of defendants. Plaintiff brings this action as an individual who waited patiently and cooperated in every way requested, to have Defendants unjustly deny his claim. The fact that Plaintiff filed subject claim on or about November 28, 1991, and Defendants denied same on April 8, 1992, and in November 1994 constitutes Defendants failure to comply with the prompt payment provisions of Article 21-55 of the Insurance Code. Plaintiff further is informed and believes and herein alleges that defendants and each of them commit violations of this act with such frequency that they have become a common business practice. As such, Plaintiff should be allowed to recover from Defendants the statutory penalty for Defendants failure to comply with above mentioned insurance code.
PRAYER
WHEREFORE, Plaintiff, prays judgment against Defendants, and each of them, on final trial of this cause, as follows:
1. For all general, special, and consequential damages, to the extent permitted under each of the plaintiffs' causes of action;
2. Declaratory Relief as to the parties’ rights and obligations;
3. For punitive and exemplary damages, where appropriate in an amount to be decided by the trier of fact;
4. For costs of suit incurred in this action;
5. For pre-judgment interest which is accrued until the time of adjudication;
6. For attorney fees where appropriate;
7. For such further and other relief as this court may deem just and proper.
Respectfully submitted,____________________
Donald L. Thompson
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