CAUSE N0. Z (9 01/3 X5-L3
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`GALVESTON COUNTY«,';l‘E
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`/ Qzfl‘JUDICIAL DISTRICT
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`§
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`IN THE DISTRICT §p_,[J
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`RICHARD CHENEY & BERNICE §
`CHENEY,
`§
`Plaintiffs,
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`§ §
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`§
`§
`TEXAS WINDSTORM INSURANCE §
`ASSOCIATION,
`§
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`v.
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`Defendant,
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`PLAINTIFFS’ ORIGINAL PETITION
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`Richard Cheney and Bemice Cheney (“Plaintiffs”) file this Plaintfls’ Original Petition,
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`complaining ofTexas Windstorm Insurance Association (“Defendant”), and would respectfully show
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`as follows:
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`I.
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`DISCOVERY CONTROL PLAN
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`1.
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`Plaintiffs request that discovery in this case be conducted under the provisions ofTexas Rule
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`of Civil Procedure 190.4 (Level 3), and request that the Court enter an appropriate scheduling
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`order.
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`II.
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`PARTIES
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`10-8-2010
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`Issued1O/CCitation@8.00mailed"3MWwithStatusConferenceLS
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`2.
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`3.
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`Plaintiffs are individuals residing in Galveston County, Texas.
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`Defendant is an insurance company domiciled in Texas and engaged in the business of
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`insurance in Texas. This Defendant may be served with process through its President or Vice
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`President at 5700 South Mopac Expressway, Bldg E, Suite 530, Austin, TX 78749 or by leaving
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`a copy of the process at this Defendant’s home office or principal business office during regular
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`M
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`business hours at 5700 South Mopac Expressway Suite 530, Bldg E, Austin TX 78749.
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`‘@0393’
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`

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`4.
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`The Clerk is requested to issue Citation.
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`III.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over this case because the amount in controversy is within the
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`jurisdictional limits of the Court, and because the events giving rise to Plaintiffs’ claims occurred
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`in this jurisdiction.
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`6.
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`This Court has jurisdiction over Defendant because Defendant is domiciled in Texas, because
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`Defendant committed a tort in Texas, and because Defendant engages in the business of
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`insurance in Texas.
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`7.
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`Venue is proper in this county because the property at issue in this case is in this county, and
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`because the events giving rise to this lawsuit occurred in this county.
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`IV.
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`FACTS
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`8.
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`On September 13, 2008, Plaintiffs owned certain real property with improvements and
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`personal property located at 9 Harbor Lane, Kemah, TX 77565 (the “Property”), which was
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`insured by insurance policy number 31392506, issued by Defendant (the “Policy”).
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`9.
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`On September 13, 2008, Hurricane Ike struck Southeast Texas, causing severe damage to the
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`Property.
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`10.
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`After Hm-ricane Ike, Plaintiffs made a claim (claim no. C0098096) and demand for payment
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`on Defendant for damages to the Property and other damages covered by the terms of the Policy
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`(the “Claim”).
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`11.
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`Defendant failed to comply with the Policy, the Texas Insurance Code, and Texas law in
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`handling Plaintiffs’ claim. Further, Defendant has refused to pay all amounts due and owing
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs’ Original Petition
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`2
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`under the Policy for the Claim.
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`12.
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`Plaintiffs have complied with any and all of Plaintiffs’ obligations under the Policy.
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`V.
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`CAUSES OF ACTION
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`A. Count One: Breach of Contract.
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`13.
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`The Policy is a valid, binding and enforceable contract between Plaintiffs and Defendant.
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`Defendant breached the contract by refusing to perform its obligations under the terms of the
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`Policy and pursuant to Texas law. Defendam‘.’s breach proximately caused Plaintiffs’ injuries
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`and damages. All conditions precedent required under the Policy have been perfonned, excused,
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`waived or otherwise satisfied by Plaintiffs.
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`B. Count Two: Unfair Settlement Practices.
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`14.
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`Defendant violated TEX. INS. CODE. § 541 .060(a) by engaging in Unfair Settlement Practices.
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`15.
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`Defendant engaged in Unfair Settlement Practices by:
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`a) Misrepresenting to Plaintiffs material facts or policy provisions relating to the coverage
`at issue;
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`b) Failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of
`the Claim, even though Defendant’s liability under the Policy was reasonably clear;
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`c) Failing to promptly provide Plaintiffs with a reasonable explanation of the basis in the
`Policy, in relation to the facts or applicable law for Defendant’s denial of the Claim or
`offer of a compromise settlement of the Claim;
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`d) Failing within a reasonable time to affirm or deny coverage of the Claim to Plaintiffs or
`to submit a reservation of rights to Plaintiffs; and/or
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`e) Refusing to pay Plaintiffs’ Claim without conducting a reasonable investigation with
`respect to the Claim.
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`16.
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`Each of the foregoing unfair settlement practices was completed knowingly by Defendant,
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`and was a producing cause of Plaintiffs’ injuries and damages.
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs‘ Original Petition
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`3
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`C. Count Three: Prompt Payment of Claims.
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`17.
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`The Claim is a claim under an insurance policy with Defendant, of which Plaintiffs gave
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`Defendant proper notice. Defendant is liable for the Claim. Defendant violated the prompt
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`payment ofclaims provisions of TEX. INS. CODE § 542.051, et seq. by:
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`a) Failing to aclmowledge receipt of the Claim, commence investigation of the Claim,
`and!or request from Plaintiffs all items, statements, and forms that Defendant reasonably
`believed would be required within the time constraints provided by TEX. INS. CODE §
`542.055;
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`b) Failing to notify Plaintiffs in writing of its acceptance or rejection ofthe Claim within the
`applicable time constraints provided by TEX. INS. CODE § 542.056; andfor by
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`c) Delaying payment of the Claim following Defendant’s receipt of all items, statements,
`and forms reasonably requested and required, longer than the amount oftime provided by
`Tax. INS. CODE § 542.058.
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`D. Count Four: Breach of the Duty of Good Faith and Fair DealinglBad Faith.
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`18.
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`Defendant breached the common law duty of good faith and fair dealing owed to Plaintiffs by
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`denying or delaying payment on the Claim when Defendant knew or should have know that
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`liability was reasonably clear. Defendant’s conduct proximately caused Plaintiffs injuries and
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`damages.
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`E. Count Five: Violations of the Texas Deceptive Trade Practices Act.
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`19.
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`Defendant’s conduct violated the Texas Deceptive Trade Practices Act, TEX. BUS. & COM.
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`CODE § 17.41, et seq, (“D.T.P.A.”) by engaging in “false, misleading or deceptive acts and
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`practices.”
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`20.
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`Plaintiffs are “consumers” in that Plaintiffs acquired goods and/or services by purchase, and
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`the goods and/or services form the basis of this action.
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`21.
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`Defendant committed numerous violations of the D.T.P.A., insofar as Defendant:
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs’ Original Petition
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`4
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`a) Represented that goods or services have sponsorship, approval, characteristics,
`ingredients, uses, benefits, or quantities which they do not have;
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`b) Represented that an agreement confers or involves rights, remedies, or obligations which
`it does not have or involve, or which are prohibited by law;
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`c) Failed to disclose information concerning goods or services which was known at the time
`of the transaction when such failure to disclose such information was intended to induce
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`the consumer into a transaction into which the consumer would not have entered had the
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`information been disclosed;
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`d) Generally engaged in unconscionable courses of action while handling the Claim; and/or
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`e) Violated the provisions of the Texas Insurance Code described herein.
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`22.
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`Defendant took advantage of Plaintiffs’ lack of knowledge, ability, experience or capacity to
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`a grossly unfair degree and to Plaintiffs’ detriment. Defendant’s acts also resulted in a gross
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`disparity between the value received and the consideration paid in a transaction involving the
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`transfer of consideration. As a result of the Defendant’s violations of the D.T.P.A., Plaintiffs
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`suffered actual damages.
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`In addition, Defendant committed the above acts knowingly and/or
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`intentionally, entitling Plaintiffs to three times Plaintiffs’ damages for economic relief and
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`mental anguish.
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`F. Count Six: Common Law Fraud.
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`23.
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`Defendant knowingly or recklessly made false representations as to material facts and/or
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`knowingly concealed all or part of material information from Plaintiffs with the intent of
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`inducing Plaintiffs to accept a denial and/or underpayment of insurance benefits. Defendant
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`allowed Plaintiffs to use this information, or lack thereof, in justifiable reliance in accepting the
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`denial and/or underpayment. Plaintiffs relied upon said statements in accepting the denial and/or
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`underpayment for the Claim, and suffered injury as a result.
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs’ Original Petition
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`5
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`VI.
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`DAMAGES
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`24.
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`Upon the trial of this case, it shall be shown Plaintiffs were caused to sustain damages as a
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`result of Defendant’s conduct. Plaintiffs respectfully request the Court and jury award the
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`amount of loss Plaintiffs have incurred in the past and will incur in the future. There are certain
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`elements of damages to be considered separately and individually for the purpose ofdetermining
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`the sum of money that would fairly and reasonably compensate Plaintiffs for the injuries,
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`damages and losses incurred and to be incurred. From the date of the occurrence in question
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`until the time oftrial of this cause, Plaintiffs seek every element ofdamage allowed by Texas law
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`with respect to the causes of action mentioned above, including but not limited to Plaintiffs’
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`actual damages, policy benefits, pre judgment interest, post judgment interest, court costs,
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`attorneys’ fees, treble damages, statutory interest, mental anguish damages, and exemplary
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`damages.
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`VII.
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`JURY DEMAND
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`25.
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`Plaintiffs request a jury trial, and herewith tender ajury fee.
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`VIII.
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`REQUEST FOR DISCLOSURE
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`26.
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`Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that Defendant disclose the
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`information or material described in Rule 194.2.
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs‘ Original Petition
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`6
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`1
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`ll IIII-Ill lIIIH$ .
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`IX.
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`PRAYER
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`27. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that final judgment be
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`rendered for Plaintiffs as follows:
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`1) Judgment against Defendant for actual damages in an amount to be
`determined by the jury;
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`2) Statutory penalties;
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`3) Treble damages;
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`4) Exemplary and punitive damages;
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`5) Prejudgment interest as provided by law;
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`6) Post judgment interest as provided by law;
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`7) Attorneys’ fees;
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`8) Costs of suit; and
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`9) Such other and further relief to which Plaintiffs may be justly entitled.
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`Respectfully submitted,
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`CLARK, BURNETT, LOVE & LEE, G.P.
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`BY:
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`/s/ Ca_n,jn M. Papantonakis
`Riley L. Burnett, Jr.
`State Bar No. 03428900
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`Caryn M. Papantonakis
`State Bar No. 24013311
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`440 Louisiana, Suite 1600
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`Houston, Texas 77002
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`Telephone: (713) 757-1400
`Facsimile: (713) 425-5315
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`ATTORNEYS FOR PLAINTIFF
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`Richard Cheney and Bernice Cheney v. Texas Windstorm Insurance Association
`Plaintiffs’ Original Petition
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`7
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`WILSON
`IN THE DISTR T
`cams“ GOUR1‘
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`GALVESTON COUNIIAR "ll
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`
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`212*“ JUDICI-
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`§
`§
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`§§
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`§ §
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`§
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`6'44“:
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`H
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`IN RE:
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`'
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`HURRICANE IKE
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`RESIDENTIAL PROPERTY
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`CLAIM LITIGATION
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`STANDING PRETRIAL ORDER CONCERNING
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`HURRICANE IKE RESIDENTIAL PROPERTY CLAIMS
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`The 212m District Court of Galveston County, Texas, has been appointed as the
`Consolidated Pretrial Court over Hurricane Ike Litigation filed in District Court in Galveston
`County, Texas. After consideration of pretrial issues and discussion with counsel representing
`claimants and counsel representing residential insurance carriers, the Court finds that pretrial
`matters should be expedited for the efficient handling of such claims.
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`IT IS ACCORDINGLY ORDERED AS FOLLOWS:
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`A.
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`lawsuits filed in the District Court of
`This Order shall be affective and apply to, all
`Galveston County, Texas wherein any policyholder (the “Plaintiff Insured”) asserts a
`claim arising from damage to residential property caused by Hurricane Ike, against an
`insurance carrier who issues insurance policies for residential property (the “Residential
`Insurance Carrier”); and
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`Immediately upon the filing of an Original Petition, the District Clerk is hereby Ordered
`to send a copy of this Order to all parties in any lawsuit affected by this Order. Any
`Plaintiff who is aware of this Order shall attach a copy of this Order to its Original
`Petition, or to otherwise send a copy of this Order to any party, if pro se, or to such
`party’s counsel of record.
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`Insurance Carrier makes an
`Within one hundred (I00) days after the Residential
`appearance in the lawsuit or the date of this Order, whichever is later, all parties are
`Ordered to agree on a mediator and mediation date. However, the mediation can be set to
`occur outside of this time period. Once the parties have agreed on a_ mediator and
`mediation date, they shall notify the Court by filing the attached Mediation Order (Exhibit
`“A”).
`if the parties make an agreement around the timing in this provision, the parties
`must obtain approval oftheir agreement from the Court.
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`Immediately upon the filing of the Residential insurance Carrier’s Original Answer, the
`case will be abated until (1) 30 days after unsuccessfiil mediation or (2) notice by any
`party that
`the party desires to unilaterally end the abatement period applicable to a
`particular case 30 days from the date the notice is received by the opposing party. The
`abatement period will apply to all Court ordered deadlines or Rule 190 Discovery
`deadlines. The abatement period will not apply to any statutory deadline, interest or
`penalties that may apply under any statutory code or law. The parties may send written
`discovery during the abatement time period, however, the responses and objections to
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`

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`those discovery requests will not be due until 30 days after the earlier of an unsuccessful
`mediation or a party’s termination of the abatement period.
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`Furthermore, within 60 days of the filing of the Insurance Carrier’s Original Answer or
`the date of this Order, whichever is later, the parties will use their best efforts to exchange
`information and documentation pertaining to the residence, to the extent same exists,
`including the following: Expert Reports, Engineering Reports, Estimates of Damage or
`repairs; Contents Lists for contents damage claim; Photographs; Repair Receipts or
`Invoices; Flood claim payments received by Plaintiff-(5) including the estimate the flood
`payment was made on; the non—privileged portions of the Residential Insurance Carrier
`and Adjusting Cornpany’s claims file (including all claim diary notes, activity logs, loss
`notes and email correspondence regarding the insurance claim); payment ledger, payment
`log and/or proof of payment from the Insurance Carrier; a copy of the insurance policy in
`effect at the time of the Hurricane Ike claim; and the non-privileged portions of the
`underwriting file. If the Insurance Carrier
`is not
`in possession of the Adjusting
`Company’s/Adjuster’s claims file, and the Adjusting Company/Adjuster is not a named
`as a party in the lawsuit represented by separate counsel, then the Insurance Carrier shall
`seek the Adjusting Company’s claims file and use their best efforts to exchange this
`information within the 60 day time period. The Insurance Carrier is also Ordered to notify
`the independent adjusting company that all entails, activity notes and loss diary notes
`pertaining to a hurricane claim in litigation shall be preserved and not destroyed pursuant
`to the Court‘s “Save & Hold” directive regarding those
`emails and claims
`correspondence. Lastly, a privilege log will also be produced in accordancelwith the
`Texas Rules of Civil Procedure for any redactions or privileges being asserted on any
`documents in the claims file or claim correspondence.
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`Any Expert Reports, Engineering Reports, Contractor Estimates or any other estimates of
`damages or repairs obtained by directive of Counsel for settlement, demand, or mediation
`purposes and exchanged prior to mediation shall be for “Mediation Purposes Only” and
`shall be considered confidential, except that any estimates and/or reports that are part of
`the claims file, which were obtained or prepared during the claims handling, shall not be
`considered confidential under this paragraph. Otherwise, such reports and estimates
`exchanged for mediation purposes shall only be used at trial if Plaintiff or Defendant
`designates the consultant as a retained testifi/ing expert and does not properly de-
`designate prior to trial. If a consultant, whose report is produced at mediation, produces a
`subsequent report for use at trial, the mediation report shall remain confidential unless
`agreed to otherwise. The reports and estimates are only confidential for the lawsuit in
`which they are being used. Expert reports designated for mediation purposes shall be
`returned to the providing party within 14 days of a written request by the providing party
`for their return after mediation. Such reports shall not be discoverable or admissible at
`trial or any hearing. If the party procuring the report designates the expert to testify, such
`party shallhave the right to prevent discovery or testimony by the expert regarding the
`mediation report and any opinions therein. The procuring party may use data such as
`measurements and photographs without waiving this privilege. Nothing herein shall
`prohibit the use of those reports and estimates in any subsequent insurance claims or
`lawsuits involving the same Residential Insurance Carrier.
`
`

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`

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`-
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`5
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`'11: Rfi: HURRICANE IKE
`RESIDENTIAL PROPERTY CLAIMS
`LITIGATION‘
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`Case Style
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`1N THE DISTRICT COURT OF
`GALVESTON COUNTY, TEXAS
`212TH JUDICIAL DISTRICT
`
`MEDIATION ORDER
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`, 2009.
`This case is hereby ORDERED to mediation by no later than
`The parties have suggested the court appoint the following mediator, and pursuant to such
`agreement, the Court hereby appoints
`Texas.
`
`An attorney ofrecord is ORDERED to attend from each party. All individual parties, either
`Plaintiff or Defendant, are ORDERED to attend. Individual Defendant Adjusters are not ordered
`to attend but a representative with full authority to negotiate and settle their case on their behalf is
`ORDERED to attend. A representative ofeach non-individual party is ORDERED to attend; the
`person so attending must be one vested with the authority to enter into a final settlement agreement.
`If there is insurance, a person who has full authority to decide whether insurance payments will be
`made must attend.
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`The parties are fiuther onnnnsn to an Pkapggggp IN ADVANCE for the mediation.
`Without limiting the generality hereof, this includes the following requirements:
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`1.
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`2.
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`All documentary evidence ofspecial damages must be obtained and presented at or
`in advance of the mediation.
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`In cases involving medical treatment, all medical records ofsuch treatment must be
`obtained and presented at or in advance of the mediation.
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`Counsel shall negotiate openly and lcnowledgeably; failure to be prepared and to negotiate
`knowingly and in good faith, may be treated as contempt. All individuals ordered to attend must
`remain in attendance until the mediator declares the mediation concluded, subject only to recess as
`declared by the mediator. Failure to appear or to remain without timely seeking relief may be
`sanctioned as contempt. All settlement discussions shall be subject to Texas Rule ofEvidence 408
`and Tex. Civ. Prac. & Rem. Code 154.073.
`
`Signed this
`
`day of
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`2009.
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`
`
`EWW “A”
`
`LATONIA o. witsou
`Cum DIFIBLEHHD:
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`Judge Presiding
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`CLARK, BURNETT, LOVE & LEE
`A GENERAL PARTNERSHIP Q? ATTORNEYS 8: COE.il\§SE§..CJRS AT LAW
`
`DOWNTOWN OFFICE
`
`440 LOUISIANA ST., SUITE 1600
`HOUSTON, TEXAS 77002
`
`TELEPHONE 713.757.1400
`FAX 713.759.1217
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`http://www.TrialLawFirm.com
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`September 29, 2010
`
`Via Regular Mail
`
`Ms. Latonia D. Wilson
`
`Galveston County District Clerk
`600 59”‘ Street, Room 4001
`
`Galveston, TX 77551-23/8&0 V $828)
`; Richard Cheney & Bernice Cheney v. Texas Windstorm Insurance Association;
`Cause #
`In the fliistrict Court of Galveston County, Texas
`/
`
`Re:
`
`Dear Ms. Wilson:
`
`Please find enclosed the following for filing in the referenced matter:
`
`I.
`
`2.
`
`3.
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`4.
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`Plaintiffs Richard Cheney and Bernice Cheney’s Original Petition;
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`Civil Case Information Sheet;
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`Residential Standing Order; and
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`Civil Process Form.
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`Please prepare the citation as indicated on the Civil Process Form (for private process service) and
`contact me at (713)757-1400 once the citation is ready for pick up. Please file-stamp the extra copy and return
`it to me by U.S. mail in the enclosed self-addressed, stamped envelope.
`
`Additionally, please note that our firm has an account with your office to cover the filing fee, issuing
`citation fee and the jury demand fee in this matter. Thank you for your assistance in this matter as it is greatly
`appreciated.
`
`Sincerely,
`
`L Morton
`H
`.
`Senior Paralegal
`
`MIQW
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