Wrongful Death - UM Petition

CAUSE NO. XXXXXXXXXX

 

 

XXXXXXXXXXX, INDIVIDUALLY,            §                       IN THE DISTRICT COURT OF

and XXXXXXXXXXX, DEPENDENT            §

ADMINISTRATRIX OF THE ESTATE          §

OF XXXXXXXXXXX, DECEASED               §

                                                                             §           XXXXXXXXXXX COUNTY, TEXAS

VS.                                                                        §                                                                            

                                                                             §

XXXXXXXXXXX and                                      §

XXXXXXXXXXX AUTOMOBILE                §

INSURANCE COMPANY                                 §                                       JUDICIAL DISTRICT

 

 

PLAINTIFFS’ FIRST AMENDED ORIGINAL PETITION

 

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

            NOW COMES XXXXXXXXXXX Individually, and XXXXXXXXXXX, Dependent Administratrix of the Estate of XXXXXXXXXXX , Deceased, hereinafter referred to as Plaintiffs, complaining of XXXXXXXXXXX and XXXXXXXXXXX  Automobile Insurance Company, hereinafter referred to as Defendants, and for cause of action would respectfully show unto the Court and jury the following.

            Plaintiff, XXXXXXXXXXX is a resident of XXXXXXXXXXX County, Texas.

            Plaintiff, XXXXXXXXXXX, is a resident of XXXXXXXXXXX County, Texas

            Defendant, XXXXXXXXXXX, is a resident of XXXXXXXXXXX County, Texas, and may be served with citation at XXXXXXXXXXX.

            Defendant, XXXXXXXXXXX, is a resident of XXXXXXXXXXX County, Texas, and may be served with citation at XXXXXXXXXXX.

            Defendant, XXXXXXXXXXX Automobile Insurance Company, is a foreign corporation licensed to do business in the state of Texas and may be served with citation through its registered agent, XXXXXXXXXXX.

            Discovery in this case shall be conducted under Level 2 of Rule 190, T.R.C.P.

I.

Facts of Case

 

                                                            

 

                                                           XXXXXXXXXXX

 

 

                                                                           II.

Cause of Action Against Defendant XXXXXXXXXXX

 

 

 

            Plaintiffs allege that Defendant, XXXXXXXXXXX, through his acts and omissions was negligent and that such negligence was a proximate cause of the incident and injuries in question.  Plaintiff’s resulting injuries and damages were proximately caused by some one or more of the following acts of negligence on the part of the Defendant:

1.         In failing to keep such a lookout as would have been kept by a person exercising ordinary care and prudence under the same or similar circumstances.

 

2.         In traveling at a faster rate of speed than a person exercising ordinary care and prudence would have traveled under the same or similar circumstances.

 

3.         In failing to make such a timely and proper application of the brakes as would have been made by a person exercising ordinary care and prudence under the same or similar circumstances.

 

4.         In failing to make such turning movements of the vehicle in question as would have been made by a person exercising ordinary care and prudence under the same or similar circumstances.

 

            5.         In failing to yield the right-of-way, as that term is defined in law, in violation of the applicable provisions of Texas Transportation Code, §545, et seq., which also constitutes negligence per se.

 

            6.         In crossing the center stripe dividing the lanes of traffic which violated the applicable provisions of the Texas Transportation Code, §545, et seq., and constituted negligence per se.

 

            7.         In violating the provisions of Texas Transportation Code, §545.062(a) which amounted to negligence per se.  Section 545.062(a) provides as follows:

 

"An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

 

            Plaintiffs allege that the acts and omissions by Defendant violated statutory law and regulations and gives rise to negligence per se, which was a proximate cause of the incident and injuries in question.

III.

Cause of Action Against Defendant XXXXXXXXXXX

 

            Plaintiffs allege that at the time and place of the afore referenced accident Defendant, XXXXXXXXXXX, was operating a XXXXXXXXXXX which was owned by Defendant, XXXXXXXXXXX.

            Plaintiffs allege that Defendant, XXXXXXXXXXX, was operating the vehicle with the permission of Defendant, XXXXXXXXXXX.

            Plaintiffs allege that Defendant, XXXXXXXXXXX, was negligent in entrusting his automobile to Defendant, XXXXXXXXXXX, whom he knew to be a reckless and/or incompetent driver.

IV.

Cause of Action Against Defendant

XXXXXXXXXXX Automobile Insurance Company

 

            Subsequent to the foregoing it was determined that Defendant, XXXXXXXXXXX, was underinsured in that Defendant, XXXXXXXXXXX, maintained liability insurance in an amount which is insufficient to fairly and reasonably compensate Plaintiff for her damages. 

            Prior to the above-referenced accident a policy of insurance was purchased from Defendant XXXXXXXXXXX Automobile Insurance Company, Policy Number XXXXXXXXXXX, which provides $25,000.00 per person per accident in underinsured motorist coverage covering the vehicle XXXXXXXXXXX was driving at the time of the subject accident.  Pursuant to the terms of said policy Plaintiffs are entitled to underinsured motorist benefits in the maximum amount of $25,000.00.

V.

Wrongful Death and Survivor Cause of Action

 

            This action is brought pursuant to the Texas Wrongful Death Statute, Texas Civil Practice & Remedies Code, and the Texas Survival Statute.  XXXXXXXXXXX is an individual plaintiff. XXXXXXXXXXX is the Dependent Administratrix of the Estate of XXXXXXXXXXX.

            Plaintiffs would show that as a direct and proximate result of the negligence of the Defendants at the time and place of the subject accident as heretofore set forth, XXXXXXXXXXX sustained injuries and damages which ultimately resulted in his painful and agonizing death on or about XXXXXXXXXXX.

            Accordingly, the Estate of XXXXXXXXXXX has sustained actual damages in the form of physical pain and suffering, conscious pain and severe mental anguish, severe physical impairment, and reasonable funeral and burial expenses suitable to XXXXXXXXXXX station in life.  The Estate of XXXXXXXXXXX will therefore seek damages in a fair and reasonable sum substantially in excess of the minimum jurisdictional limits of this Court.

            Plaintiff, XXXXXXXXXXX, would show that as a direct and proximate result of the negligence of the Defendant at the time and place of the subject accident as heretofore set forth, which brought about the death of a loving father, XXXXXXXXXXX  has suffered the past and future loss of XXXXXXXXXXX love, care, maintenance, support, services, advice, counsel, companionship, and society, and will suffer past and future emotional pain, mental anguish, torment, and suffering as a result of the untimely and wrongful death of her father, XXXXXXXXXXX.  These damages were suffered in the past and will be suffered in the future for the rest of her life.  Plaintiff seeks past and future pecuniary loss, past and future loss of companionship and society, and past and future mental anguish. 

            Plaintiff seeks damages in an amount substantially in excess of the minimum jurisdictional limits of this Court.

VI.

Property Damage

 

            As a direct and proximate result of the acts and omissions of Defendants XXXXXXXXXXX and XXXXXXXXXXX XXXXXXXXXXX vehicle suffered serious damage.  Plaintiffs therefore sue for the difference between the market value of XXXXXXXXXXX vehicle immediately following the collision in question, as compared to the market value of XXXXXXXXXXX vehicle immediately prior to such collision; or, in the alternative, the reasonable cost of repairing XXXXXXXXXXX vehicle, plus the reasonable value of the use of a vehicle of the same class as that owned by XXXXXXXXXXX for a period of time reasonably required to repair the damage to XXXXXXXXXXX vehicle in Texas, plus the difference in the market value of XXXXXXXXXXX vehicle immediately following the reasonable and necessary repairs to XXXXXXXXXXX vehicle after such collision, as compared to the market value of XXXXXXXXXXX vehicle immediately prior to such collision.

            WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray for issuance of service of citation upon Defendants, actual damages, damages, costs of Court, pre-judgment and post judgment interest, and such other and further relief, general and special, legal and equitable to which Plaintiffs may be justly entitled.

                                                                        RESPECTFULLY SUBMITTED,

 

 

 

                                                                        ______________________________

                                                                        Earl Drott

                                                                        State Bar Number 06134750

 

                                                                        Earl Drott Law

                                                                        Bank of America Southeast Center

                                                                        3301 Golden Road, Suite 411

                                                                        Tyler, Texas 75701

                                                                        Phone (903) 531-9300

                                                                        Fax (903) 531-0221

edrott@earldrottlaw.com                          

                                                                        Attorney for the Plaintiff

 

 

 


 

CERTIFICATE OF SERVICE

 

            I hereby certify that a true and correct copy of the foregoing has been forwarded to XXXXXXXXXXX, by regular mail or telecopier transmission, on this the ____ day of ___________________, 20____.

 

 

 

                                                                        __________________________________________

                                                                        Earl Drott