Bryan Pringle v. William Adams Jr et al

Filing 283

DECLARATION of Tal E. Dickstein in support of MOTION for Attorney Fees of all Defendants 280 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Miller, Donald)

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§ IN THE DISTRICT COURT
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v.

USAA, INSURANCE

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§

AGENCY,

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§ BEXAR COUNTY, TEXAS

DEfENDANTS

TO

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, PLAINT

HONORABLE JUDGE OF S

'8 ORIGINAL PETITION

COURT:

BjY AN PRINGLE AND CHARLE PRINGLE. hereinafter referred to as "plaintiffs", files
this fRIGINAL petition against

US

INSURANC~ AGENCY, INC, defendant for the

following reasons:

1. ~rrvice ofProceSJ!
Service of process may be had on th defendant at , following address:
the
'" USAA Insurance Agency, Inc. 1
R~istered Agent: Robert Hoagland
9800 Fredericksburg

Rd.

Sa~Antonio, Texas 78228

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2. Statutory Author:itL

is

suit is brought in part pursuant

. C010nlY

known and the " Deceptive

the Tex. Bus. ~ Com. Code§ 17.41 et. seq.
rade Practices and Consumer Protection Act" and cited

in thi! petition asthe 'DTPA". Furth

Claims against pefendaOt are brought pursuant to

ArtiCr 21.21 of the Texas Insurance C

e and the Co~on

FidUC(1IIY and Breech of Good Fai
Duty

and Fair Dealing

Fr'

Law remedies of Breech of

Plaintiff'asserts the Defend Is have committed Slander and Defamation.

3. Venue

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of this action is proper in the ounty of suit because the Policy was purchased in

relation to the purchase of an insurance

whirI give rise to this suit occurred

in

licy covering property in Bexar County and the act's

exar County.

4, Notice: Conditi<l'ns precedent

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(a~~efendant was given notice in wri ing of the claims made in this petition ~nCluding
a

statJment of plaintiffs actual damag

and expenses, inCludin; attorney's fees more than

sii

e manner and form required by DTPA 17.505 and
§

days before this suit was filed in

Article 21.21 § 19 of the Texas Insuran

~b) AU·conditions precedent necess

Code ..

to maintai~ this action have been performed~r

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haveccurred.

5. The Transaction:L

This suit arises from a clai

for damage that was filed by the Plaintiff on the

Defeldant.

raintiffs are rental properly owne s. The majority ofthe property owned by Plaintiffs isin
Abilje,

Texas. Plaintiffs have hired

oug Harris to serve as property manager. On or about

octoter

10, 2002, lMr. Harris discovere

that the lock on the garage of the apartment at 517 N.
1

lOth Street was missing.

mis+g.
then iled
11,f2.

Mr. Harris dis overed that numerous items fromthe garage were

Mr. Harris contacted Plaintif Bryan Pringle to inform him of the theft. Mr. Harris
the Abilene Police Departm nt. The police made a report of the incident on October
On October 15,2002, the PI ntiffBryan Pringle filed a claim under his father,

PlaiTiffCharleS Pringle's, renters ins
IDefendant USAA renters policy n
apprximately

ce policy.
her is 00111 37 73 REN 001. PlaintiffrStimated

that

$25,,477.20 worth of ite s were stolen from the g~age of a rent h~use owned by

the raintiffs at 1517 N. 10'" Abilene Texas. Plaintiff Bryan Pringle is the son of Plaintiff
in
ChjleS Pringle and is thereby a relativ and an insured under the policy. The declaration page
of

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policy on the limitation ofliabir

for personal properly is$57,900. Plai1tiffs claim is

well within that limit.
The stolen items were PlaintiffB 'an Pringle's personal property.

The policy on page 10

statfs that Defendant is to cover the "p. onal property" of an "ipsured" anywhere in the

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"WOrlf'" PP-3/ Page 10 states that the

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is specifically one of the covered losses.

stead of paying the claim, De ndants launched ~ fraud investigation. Charles Pringle,

Bryanl and his mother submitted toEx

inations under oath, submitted to extensive questioning

and ~red an attorney. Mr. Harris was ot interviewed until several months after the claims was
madej Plaintiff' are still not aware th the Defendanth~ even 'Fen

with the Abilene Police

DePrent.

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~e Defendant has uncovered no evidence offra~

Pl1iffs.
Depaient

'lai

However, because of the del y, Bryan Pringle filed a complaint with the Texas
of Insurance. During thei vestigation of the claim, ~mpIOyeeSof the Defendant

to the Texas Department of ins

cooperate and was blocking efforts to h
f

of the Defendant were comply false.

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or any wrongdoing on the part of the

.

nee that Bryan Pringle.h~ instructed witnesses not to
die the claim. The statement made by the employee
r. Pringle, never instructed any person to not cooperate

wilSAA.

PlaintiffS have also learned from in stigators at TDI,:that the Defendant's employees,
inc1 ding Cristin Gray and Kevin Brya ,stated that Bryan Pringle is unemployed, was
,

preV,OUSlYancelled as an insured beca se of an excessive loss history and made a series of
c
WharUSAA believed to be questionabl ,if not bogus claims. Also, Defendants employee,

inClrding Lillian Saldivar, Sharon Jona , Cristin Gray and Tamra Carson, stated lat Mr. Pringle
and his Father (A civil service employe with an impeccable reputation) were committing fraud
and misrepresentation.

These malicio

several different investigators at TDI, i

and false comments were made and 1s1 directed to
a
luding Darrell Hartman, a police officer, and

invlstigator in the insurance fraud unit. These false statements caused the Plaintiffs to e
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mvesngateo ror riminal insurance fra
c
fraud

be misrepresentation

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by TDI. No charges were ever filed and no prooffo

was ever cl med byill! against the Plaintiffs.

Defendant's

employees also stated to ill! that Bry Pringle was attempting to 'present again an item from a
previ1us theft claim for reimbursement

despite the fact that the D;fendant

had had in their

posserion two completely separate pr f of ownership receipts for two separate items at the
time ie statement was made. One of
USj
Chart

savings bank.

In additiOn,. US

Pringle's renter's and fifeIDS

e receipts for an
itemizedcredit card statement from
has n~n.ren""!,,d and effectively cancelled both
co policies, based on their false claim of fraud and

misrepresentation against the Plaintiffs. Defendants have no proof of any fraud or
misrdpresentation. As to the assertion
CI,S

USAA of alleged questionable, if not bogus past

by the Plaintiffs, Plaintiffs recei ed a letter recently, from the city of Abilene Police

Department where a piece of equipmen that was stolenas a result of a prior theft (which is one
of thl alleged bogus claims) was reeov

ed in a local pa;'" shop.I

Plaintiffs assert that Defendants s tements to TDlconstitute defamation and were made
with malice, fraudulent intent or in bad aith and are therefore not immune under Section 6 of
Article 1.100 of the Texas Insurance C de. Defendants are private individuals, a non-media
defendant and the matter spoken of con titutes a private issue and therefore this constitutes a
strid liability defamatory act. Defend Is acts also constitute slander per se by stating that
PlaittiffS were involved in a criminal a . Further, Def~ndants have now stated on a sight
aVairable to all insurance companies th

both PlaintiffJ had their policy of insura~ce cancelled

due Ito fraud and misrepresentation. Th se actsconstitute publication.

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6. Ca ses of Acti(!L

A. DTPA IVioladons

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e facts set forth in the precedin paragraph give rise to the following causes of action

undef the DTPA §17.46 and 17.50 th following causes were relied on to the Plaintiffs

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detn,ent.
A.'IDeceptiveTr:lldeClaims § 17.46

r)

representing that goods or serv es have a sponsorship, approval, characteristics,

ingrfients, uses, or benefits, or quali es which they d~ not have...

i)

representing that goods or se

goods are of a particular style or mod

es are of a particular standard, quality or grade or that
if they are another.

3) representing that an agreemen confers or involves rights, remedies, or obligations
whioh it does not have or involve, or hich are prohibited by law.
4) failure to jrliscloseinformation onceming goods or services which was know at the

consumer into a transaction which the

nsumer would not have entered had the information

5) representing that a guarantee r warranty confers or involves rights or remedies which
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it d~es not have or 'involve...

B. INSURANCE CODE VIO

TIONS

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A.. Texas I[flsur ce Code Arti Ie 21.21 Violations
1)

Plaintiffs assert th

the Defendant made misrepresentations

of material fact

or policy provisions.
2) Failed to attempt in ood faith to effectuate a prompt, fair, and equitable
,

settlement of the claim

hen the Defendaht's liability became reasonably clear.

3) Refusing to pay a cla

without conducting a reasonable investigation with

respect to the claim.

B. Breach pf Contract
1) Nature of the Contra t

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contract thebasis of this suit is

insurance policy as described above that was in fun
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force and affect at the time of the cove
2) Terms of the Contrac
The Policy is a Standard renters po icy.
3) Performance by Pia'

iff

Piaintiff was performing all duties rated

to the contract.

4) Breech
laintiff asserts that the Defendant'

decision to deny the claim

is a breach ~ the ·poliCY.

C. Breach of Fiduciary Duty
jIbe above described failure to pay

nstitutes a breach of fiduciary duty as under Texas law

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Insice Companies and insurance c tracts create a "special relationship" therefore thiswas a
COnfitntial relationship. Said relatio hip imposed the duty on the defendant to not just seek its
own ronomic

interests but to put the Iaintiff' s interests before its own.

Said relationship was

breac ed by the Defendant's failure to ay the claim and their continued failure to pay the claim .
. D. Breach,ofGood

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Faith

d

asserted in the facts above the D fendants

had no reasonable basis for denying the claim,

and fey knew orreasonably should 0 known that they had no basis to deny the claim.

E. Slande: /Defamation/Libel
he above acts;constitute that the

efendant

1. Published a stateme

of fact

2. ."he Statement referr d to the Plaintiffs

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3. The Statements wer defamatory
4. The Statements were false

5. V/ith regard to the

th of the statement, the Defendant was
alice
ut

6. The plaintiff suffere

regard to fault

pecuniary injury (although Plaintiff asserts that thisis

presumed because of th allegation by the Defendant that Plaintiffscommitted a
criminal act)
E. Violation of Article 21.55 § 3(a)
Plaintiff asserts that the

efendants failed to accept or reject the claim within the

thirty (30) day period pr vided by the policy and by statute. The Plaintiff also

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such tceptive act, constitute grounds hat would also cause said ~bove described acts to fall
under the above referenced section of

Plaintiff is 1 mtitled to recover

e DTPA.

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ee times that portion of his damages because of the

conduct of the defendant was c mmitted knowingly pursuant to DTPA§ 17.50(b)( 1).

Plaintiff ass erts that under Secti n 16 of Article Z 1.21 of the insurance code that the
above described acts constitute violatio s of Section 4 and therefore the Plaintiff is entitled to
recover three times the economic dam ges caused because the Defendant knowingly

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COjltte d sat acts,

rurther, Plaintiff asserts that the A ts described above inbO~ the Breech of Fiduciary Duty
and the Breech of Good Faith and Fair

eaIing and Defamation/Slander were done with Fraud,

MarIce or were WililfulActs or Omissi s and therefore Plaintiff is entitled to $750,000.
Under article 21.55 § 6 the Plainti

requests in addition to the amount of the claim the18%

per annum allowed by the statute,

lO.lental

Anws1j

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raintiff

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asserts that due to the kno .ng nature of. the damages that the Plaintiff has

sutlJeredMental Anguish damages as th has caused him to lossrents, make repeated trips to

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asserts that the Defend

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t failed to acceptor reject the claim within the45 day

period allowed by the s tute.

7.

~usation' dam!ages.

(a) The' conduct described in
caj

of economic and actual damages

the minimum jurisdictional limits of t

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e preceding paragraphs was a producing and proximate
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plaintiff.

The amount of plaintiff's damages exceeds

court and is believed to be in an amount in excess of

$25,000.

8. Knowing and Il1ltentional Conduct

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Plaintiff asserts, in compliance wi
of

§17.45(9) thatthe Defendant

was aware, at the time

act or practice complained or, f the falsity, deception or unfairness of the act or

P1ice

giving rise to the consumers cl .m. Further, Plaintiff asserts that the Defendant's acts

werj intentional as defined in § 17.4 13) in that in addition to the knowing nature of the
conduct, the Defendants

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had the speci c intent that the Plaintiff act in detrimental reliance on

the falsity or deception or in detrime

1ignorance of the unfairness.

The Plaintiff asserts that their acts i failing to pay claims c~nstitutes the exaft same
contct

as listed above and therefore

kno~ngly.

. der Article 21. 21 § 16 said acts were committed

because Plaintiffs relied 0 the acts or omissions and representations ofUSAA that

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Abilene to deal with and remedy the

oblem and constitutes a substantial disruption to his daily

Plaintiff continues to suffe Mental Anguish as a result of the Defendants continued

routi~e,

pay the claim,

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Defer"

Due to the inte tional nature of this mental anguish caused by the

Plaintiff asserts that the

three times that found by the trier of

II,[,tomey,s

ount of mental anguish damages should be awarded at
ct in compliance with§ 17.50(b)( 1) of the DTP A.

FeeL

Plaintiff seeks ~1~11
reasonable and n

ssary attorneys' fees in this case which include the

fOn1wing:
a) Preparation and trial of this law uit; and
b) Post-trial, pre-appeal legal servi es; and
An Appeal to the court of appe s; and

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1d) Making or responding to an app ication for writof error to the Supreme Court of Texas;

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(e) An appeal to the Supreme Co

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of Texas in the event .application for writ and error is

;and

" '1~f)"Post- judgrnent discovery and

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llection in the" event execution on the judgment is
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necessary.

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(a) PlaiDtiff demands judgment again defendants for aI) damages and attorney's fees; andll
a
statutry additional or exemplary dam ges as set forth above, costs of expertwitnesses, costs of
copies of depositions, costs of court an

prejudgment and postjudgment interest at the highest

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lawful rates .:
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(b) P aintiff also asks for such other re ef to which plaintiff may be entitled.
(c)

Petitioner prays that citation and otice issue as required by law and that the Court the

relief requested in this petition.
(d) 7titioner

praysfor attorney's fees, xpenses and costs.

(e) Petitioner prays for general relief.

13.raJId
Pitiff

for Jo. and
Trial Sellin
demands a jury trial. Plai iffs jury fee is tendered with this petition and Plaintiff

reqursts that the Court set this issue fo trial at earliest pDssible date available to the Court.

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