DONALD L. THOMPSON
Plaintiff, Pro-Se
vs. Cause No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON
Defendants
MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOTICE OF HEARING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Defendant, ALLSTATE INSURANCE COMPANY, by and through its attorney, and moves the Court pursuant to Rule 166a to enter partial summary judgment in this matter and as grounds therefore would show to the Court as follows:
I. ALL NECESSARY PARTIES BEFORE The COURT
Defendant would show that the only two appropriate parties to this action are the Plaintiff and the Defendant Allstate Insurance Company. The named Defendant ROBERT WILSON is not a proper party and his presence is not necessary to the disposition of this dispute.
II. NO GENUINE ISSUE OF MATERIAL FACT
There is no genuine issue of material fact as to the defense of limitations on all tort claims of the Plaintiff. The only claim not barred by limitations is the claim of the Plaintiff under the insurance contract. The attached summary judgment evidence conclusively establishes that Plaintiff's claim was denied on April 8, 1992. The Defendant requests this Court to take judicial notice that this action was not filed until November 25, 1994, more than two years (actually more than two years and seven months) after the denial of the claim. The Texas Supreme Court has determined that claims for breach of the duty of good faith and fair dealing are governed by the two year statute of limitations. The Court, in the same decision, determined that all such claims run from the date of denial of the claims. In this case, the claim was denied on April 8, 1992, and the statute of limitations barred all such actions on April 8, 1994, more than seven months prior to this filing of this lawsuit.
Further, the Defendant ROBERT WILSON is an employee of the Defendant ALLSTATE INSURANCE COMPANY and was the investigator on the claim filed by the Plaintiff. The individual employee owes not duties to the Plaintiff and specifically owes no duty of good faith and fair dealing. Such duty is owed by the insurance company itself and not by any of its employees. Defendant requests that the Court dismiss any and all claims against the individual defendant.
III. MOTION ENCOMPASSES ALL CLAIMS IN TORT
This motion encompasses all claims of the Plaintiff sounding in tort. Movant requests that the Court enter its order granting partial summary judgment in favor of the Defendant and against the Plaintiff on all claims of the Plaintiff, save and except Plaintiff's claim under the insurance contract itself. Movant further requests that the Court either strike and dismiss the individual Defendant ROBERT WILSON or enter summary judgment on all claims of the Plaintiff against the Defendant ROBERT WILSON.
WHEREFORE, Movant requests that the Court set this Motion for hearing and, upon hearing, enter partial summary judgment as set forth hereinabove.
Respectfully submitted,
MAYFIELD AND PERRENOT Attorneys for Defendant Allstate Insurance Company
By:_______________________ VICTOR F. POULOS State Bar No. 16184700
NOTICE OF HEARING
TAKE NOTICE that this Motion for Partial Summary Judgment has been set for hearing before County Court at Law Number Two, El Paso, Texas, on the 8th day of December, 1995, at the hour of 1:30 o'clock, p.m., or as soon thereafter as it may be heard.
CERTIFICATE OF SERVICE
I hereby certify that I have served, pursuant to Rule 21a, a true and correct copy of the above and foregoing to Mr. Donald L. Thompson, Plaintiff, 5101 Azalea, Amarillo, Texas 79110, on this _____ day of October, 1995.
AFFIDAVIT IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
THE STATE OF TEXAS
COUNTY OF POTTER
BEFORE ME, the undersigned authority, on this day personally appeared ROBERT WILSON, who, first upon oath being duly sworn, deposed and stated:
1. I am ROBERT WILSON. I am an employee of the Defendant Allstate Insurance Company. I have personal knowledge of these facts because I was responsible for the handling and investigation of the claim of the Plaintiff DONALD L. THOMPSON for the damage which occurred on November 26, 1991.
2. On April 8, 1992, the claim of DONALD L. THOMPSON was denied and notice of the denial was delivered to the Plaintiff DONALD L. THOMPSON.
_______________________ ROBERT WILSON
SUBSCRIBED AND SWORN to before me this 25th day of October, 1995, at Abilene Texas.
_______________________ Notary Public in and for The State of Texas
Angelyn Flesher Craghead My Commission Expires 10/5/96
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