Osbaldo Hurtado Avalos and Antonio Hurtado as Assignees of Karla Flores Guevara v. Loya Insurance Company

ACCEPTED
04-17-00070-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/20/2017 10:56 AM
NO. 04-17-00070-CV
FILED
Fourth Court of Appeals
*****
San Antonio, TX
IN THE
Accepted:
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS 3:43 pm, Jul 20, 2017
*****
OSBALDO HURTADO AVALOS AND ANTONIO HURTADO, AS
ASSIGNEES OF KARLA FLORES GUEVARA, Appellants
V.
LOYA INSURANCE COMPANY, Appellee
*****
APPEALED FROM THE 111TH JUDICIAL
DISTRICT COURT OF WEBB COUNTY, TEXAS
*****
BRIEF OF APPELLANTS
*****
THE GREEN LAW FIRM, P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile : (956) 542-7026
jorge@thegreenlawfirmpc.com
letygarza@thegreenlawfirmpc.com
BY: /s/ Jorge A. Green
JORGE A. GREEN
State Bar No. 24038023
LETICIA GARZA
State Bar No. 24092405
APPELLANTS REQUEST ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellant presents
the following list of all parties to the trial court’s order appealed from and the names
and addresses of all trial and appellate counsel:
Names Counsel Party
Osbaldo Hurtado JORGE A. GREEN Appellants
Avalos and Antonio State Bar No. 24038023
Hurtado as Assignees LETICIA GARZA
of Karla Flores State Bar No. 24092405
Guevara THE GREEN LAW FIRM,
P.C.
34 S. Coria St.
Brownsville, TX 78520
(956) 542-7000 Telephone
(956) 542-7026 Fax
jorge@thegreenlawfirmpc.com
letygarza@thegreenlawfirmpc.com
Loya Insuance JOHN R. LYDE Appellee
Company State Bar No. 12712700
VIDAURRI, LYDE, RODRIGUEZ
& HAYNES, LLP
202 N. 10 th Avenue
Edinburg, Texas 78541
(956) 381-6602 Telephone
(956) 381-0725 Fax
rlyde@vlrhlaw.com
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE 1
STATEMENT OF ORAL ARGUMENT 3
ISSUE PRESENTED 4
STATEMENT OF FACTS 6
SUMMARY OF ARGUMENT 12
ARGUMENT 14
I. THIS COURT SHOULD REVERSE THE TRIAL COURT’S RULING
BECAUSE APPELLEE HAD A DUTY TO DEFEND MS. FLORES
GUEVARA ...................................................................................................14
A. The Eight Corners Rule Requires That An Insurance Company
Defend Its Insured When A Lawsuit’s Pleadings Fall Within The
Coverage Provided In Its Insurance Contract ....................................14
B. The Pleadings Of The Lawsuit Against Ms. Flores Guevara Fell
Within The Coverage Provided By Appellee to Ms. Flores Guevara.17
C. The Texas Supreme Court Has Never Expressly Recognized An
Exception To The Eight Corners Rule................................................18
II. THIS COURT SHOULD REVERSE THE TRIAL COURT’S DECISION
ON APPELLEE’S TRADITIONAL MOTION FOR SUMMARY
JUDGMENT ON DECLARATORY JUDGMENT BECAUSE
APPELLEE’S REQUEST WAS NO LONGER RIPE .................................20
A. Declaratory Actions Are Moot If One Of The Parties Has Already
Chosen Its Course Of Conduct............................................................20
ii
B. Therefore, Appellee’s Request For A Declaratory Action, After It Had
Already Committed To Its Conduct, Renders A Declaratory Action
Moot....................................................................................................22
III. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S NO
EVIDENCE MOTION FOR SUMMARY JUDGMENT.............................22
A. A No-Evidence Motion for Summary Judgment Must Not Be
Conclusory...........................................................................................22
B. Appellee’s No-Evidence Motion For Summary Judgment Is
Conclusory...........................................................................................24
C. Whether Or Not Ms. Flores Guevara Was Driving Is Irrelevant and
Barred By Res Judicata.......................................................................25
D. Adequate Time for Discovery Had Not Passed..................................27
III. PRAYER........................................................................................................31
iii
TABLE OF AUTHORITIES
Amouri v. Southwest Toyota, Inc.,
20 S.W.3d 165, 168 (Tex.App.-Texakana 200, pet. denied)...............14,23,25
Argonaut Sw. Ins. Co. v. Maupin,
500 S.W.2d 633, 635 (Tex.1973)..................................................................16
Barr v. Resolution Trust Corp.,
837 S.W.2d 627, 628 (Tex.1992)..................................................................26
Benson v. Wanda Pet. Co.,
468 S.W.361, 363 (Tex.1971).......................................................................27
Boerjan v Rodriguez,
436 S.W.3d 307, 310 (Tex..2014).................................................................23
Brewer & Pritchard, P.C. v. Johnson,
167 S.W.3d 460, 468 (Tex.App.-Houston [14th Dist.] 2005, pet. denied)....28
Brown v. Brown,
145 S.W.3d 745, 754 (Tex. App.—Dallas 2004, pet. denied)......................22
Canutillo Indep. School Dist. v. National Union Fire Ins. Co,
99 F.3d 695,701(5th Cir 1996)......................................................................16
City of San Antonio v. Cortes,
468 S.W.3d 580, 586 (Tex.App.-San Antonio 2015, pet. denied)................26
Cook v. Admiral Ins. Co.,
438 F. App'x 313 (5th Cir. 2011)..................................................................15
Cmty. Initiatives, Inc. v. Chase Bank,
153 S.W.3d 270 (Tex. App.—El Paso 2004)................................................28
Eagle Props., Ltd. v. Scharbauer,
807 S.W.2d 714, 721 (Tex.1990)..................................................................26
iv
Fort Brown Villas III Condo. Ass’n v. Gillenwater,
285 S.W.3d 879. 882 (Tex.2009)..................................................................27
Gehan Homes, Ltd. v. Emplrs Mut. Cas. Co.,
146 S.W.3d 833 (Tex. App.—Dallas 2004).............................................15,16
Gore Design Completions, Ltd. v. Hartford Fire Ins. Co.,
538 F.3d 365 (5th Cir. 2008).........................................................................16
Guide One Elite Ins. v. Fielder Rd. Baptist Church,
197 S.W.3d 305, 310 (Tex. 2006)......................................................15,19,20
Gulf Chemical & Metallurgical Corp. v. Associated Metals and Minerals Corp.,
1 F.3d 365, 367 (5th Cir. 1993)......................................................................19
Hamlett v. Holcomb,
69 S.W.3d 816, 819 (Tex.App.-Corpus Christi 2002, no pet.)......................25
Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,
387 S.W.2d 22, 24 (Tex.1965)............................................................14,16,20
Holloway v. Tex. Elec. Util. Constr., Ltd.,
282 S.W.3d 207 (Tex. App.—Tyler 2009)....................................................23
J.E.M. v. Fidelity & Cas. Co.,
928 S.W.2d 668, 671 (Tex. App.-Houston [1st Dist.] 1996, no writ).......20,21
KCM Fin. LLC v. Bradshaw,
457 S.W.3d 70, 79 (Tex.2015)......................................................................23
King v. Dallas Fire Ins. Co.,
85 S.W.3d 185, 187 (Tex. 2002).............................................................15,16
Lincoln General Ins. Co. v. Aisha Learning Center,
468 F. 3d 857,858(5th Cir. 2006)..................................................................15
Martinez v. City of San Antonio,
40 S.W.3d 57, 591-92 (Tex.App.-San Antonio 2001, pet. denied)..............29
v
McClure v. Atterbury,
20 S.W.3d 722, 729 (Tex. App.-- Amarillo 1999, no pet.)...........................28
McMahan v. Greenwood,
108 S.W.3d 467, 498 (Tex.App.-Houston [14 th Dist.] 2003, pet.
denied)......................................................................................................28,29
Michael v. Dyke,
41 S.W.3d 746, 751-52 (Tex.App.-Corpus Christi 2001, no pet.)...........23,25
Miller v. Elliot,
94 S.W.3d 38, 42 (Tex. App.—Tyler 2008)..................................................22
Moorehouse v. Chase Manhattan Bank,
76 S.W.3d 608, 612 (Tex.App.-San Antonio 2002, no pet.).........................27
National Union Fire Ins., Co. v. Merch. Fast Motor Lines, Inc.,
939 S.W.2d 139, 141 (Tex. 1997)............................................................14,15
Northfield Ins. Co. v. Loving Home Care, Inc.,
363 F.3d 523, 531 (5th Cir. 2004).................................................................18
Ortiz v. Collins,
203 S.W.3d 414, 425 (Tex.App.-Houston [14th Dist.] 2006, pet. denied)....23
Quinney Elec., Inc. v. Kondos Entm’t Inc.,
988 S.W.2d 212, 213 (Tex.1999)..................................................................26
Restaurant Teams Int'l., Inc. v. MG Securities Corp.,
95 S.W.3d 336, 339 (Tex. App.-- Dallas 2002, no pet.)................................28
Rowan Cos. v. Griffin,
876 F.2d 26, 28 (5th Cir.1989).......................................................................21
Scott-Burr Stores Corp. v. Wilcox,
194 F.2d 989, 900 (5th Cir. 1952)..................................................................21
State & Cty. Mut. Fire Ins. v. Miller,
52 S.W.3d 693, 696 (Tex.2001)....................................................................26
vi
Sysco Food Servs. v. Trapnell,
890 S.W.2d 796, 801 (Tex.1994).............................................................26,27
TemPay, Inc. v. TNT Concrete & Constru., Inc.,
37 S.W.3d 517, 522-23 (Tex.App.-Austin 2001), pet. denied).....................28
Timpte Indus. v. Gish,
286 S.W.3d 306, 310 (Tex.2009).............................................................23,24
Tex. R. Civ. P. 166a(i).............................................................................................23
Tex. R. Civ. P. 166c.......................................................................................23,24,25
Trinity Universal Ins. Co. v. Cowan,
945 S.W.2d 819 (Tex. 1997).........................................................................16
Weaver v. Highlands Ins.,
4 S.W.3d, 829 n.2 (Tex.App.-Corpus Christi 2002, no pet.)....................23,25
Zurich Am. Ins. Co. v. Nokia, Inc.,
268 S.W.3d 487, 491 (Tex. 2008)............................................................14,15
vii
STATEMENT OF THE CASE
This appeal stems from an order by the 111th District Court in Webb County
granting Appellee’s, Loya Insurance Company, Traditional and No-Evidence
Motions for Summary Judgment. (C.R. at 280) Appellants (the Hurtados) as
assignees of Karla Flores Guevara sued Defendant/ Appellee in that case, arguing
that Fred Loya breached its contract with appellee and violated various statutory
and common law duties by not providing a defense in an earlier suit. (C.R. at 33).
In the underlying case, Appellants/Plaintiffs were injured as a result of a
motor vehicle collision. (C.R. at 32). The Hurtados sued Karla Flores Guevara, the
listed driver of the other vehicle on the police report. (C.R. at 32). Ms. Flores
Guevara was an insured of Loya Insurance Company. Defendant/Appellee Loya
Insurance Company initially assigned counsel to defend her in that lawsuit (C.R. at
32). Just prior to her deposition, Ms. Flores Guevara told that lawyer, an employee
of Loya Insurance Company that she had not been the driver of the vehicle
involved in the incident with the Hurtados. (C.R. at 134) After Loya was told by
its employee (Ms. Flores Guevara’s original counsel) that his client claimed to
have defrauded Loya, Loya denied the existence of coverage and stopped
defending Ms. Flores Guevara (C.R. at 32). Loya’s denial was based on Ms.
Flores Guevara’s claim that her husband, an excluded driver, had been the driver of
1
the vehicle involved in the wreck with the Hurtados. (C.R. at 211) Subsequently, a
judgment was granted in favor of the Hurtados, and the Hurtados accepted an
assignment of Ms. Flores Guevara’s claims against Loya Insurance Company.
(C.R. at 174-177)
On May 17, 2016, as assignees of Karla Flores Guevara’s claims, the
Hurtados sued Appellee/Defendant Loya Insurance Company, alleging, inter alia,
that Defendant Loya Insurance Company breached their duty to defend her when it
pulled coverage and instructed her attorney withdraw from her representation.
(C.R. at 16-22)
Appellee/Defendant Loya Insurance Company counter-sued Karla Flores
Guevara, alleging she breached her contract for insurance, fraud, and seeking a
judicial declaration that Defendant Loya Insurance Company did not owe Karla
Flores Guevara a duty to defend her in the original lawsuit. (C.R. at 32-35). After
repeatedly refusing to respond appropriately to written discovery, and after a single
deposition of a non-party, Ms. Flores Guevara, Defendant/Appellee Loya
Insurance Company filed a No-Evidence and Traditional Motion for Summary
Judgment, asking the trial court to declare that Loya did not owe a duty to defend
Karla Flores Guevara. (C.R. at123-129) The Trial Court granted Defendant’s
Traditional and No-Evidence Motions for Summary Judgment in a single order.
(C.R. at 280)
2
STATEMENT OF ORAL ARGUMENT
Appellants hereby request oral argument due to the complex nature of the
procedural background of this case.
3
ISSUES PRESENTED
Appellants sued Appellee for damages resulting from the failure to defend
its insured who was a covered person for claims covered by her policy. This
appeal addresses both substantive and procedural issues. The issues, discussed in
greater detail below, relate to whether an insurance carrier, after receiving attorney-
client privileged information from an employee, should be allowed to abandon an
insured on a case involving covered claims against a covered person, and whether,
after not liking the result of the case they abandoned, will be allowed to retry the
case in subsequent proceedings.
Did the trial court err in granting Appellee’s Traditional Motion for
Summary Judgment when assignor, a covered person under an insurance policy
issued by Appellee, owed Assignor a duty to defend because, under “The Eight
Corners Rule,” the claims against her fell within the policy coverage that Appellee
was contractually obligated to provide?
Did the trial court err in granting Appellee’s Traditional Motion for
Summary Judgment on Declaratory Judgment when Appellee’s Request was no
longer ripe?
Did the trial court err in granting Appellee’s No-Evidence Motion for
Summary Judgment when Appellee’s motion was conclusory?
4
Did the trial court err in granting Appellee’s No-Evidence Motion for
Summary Judgment when the alleged failure to produce evidence is related to
whether or not Ms. Flores Guevara was driving the vehicle involved in the wreck,
an issue barred by res judicata given that the original trial court entered a judgment
in the original lawsuit finding Assignor negligent?
Did the trial court err in granting Appellee’s No-Evidence Motion for
Summary Judgment when an adequate time for discovery had not passed because
of Appellee’s repeated refusal to respond appropriately to written discovery and
proceed with depositions of fact witnesses subject to their control?
5
STATEMENT OF FACTS
On or about March 18, 2013, Appellants suffered injuries when they were
involved in a car wreck. (C.R. at 18) At the time of said accident, Ms. Flores
Guevara was insured by Appellee Loya Insurance Company.(C.R. at 18,183) The
police report prepared by the investigating officer identified Ms. Flores Guevara as
the driver of the vehicle that struck the vehicle in which the Appellants were riding
and did not list any passengers. (C.R. at 208-209)
On October 30, 2014, Appellants filed suit against Ms. Flores Guevara.(C.R.
at 179-181) That suit against Ms. Flores Guevara was given cause number
2014CVT002421 in the 49th Judicial District of Web County, Texas. (C.R. at 179-
181) The lawsuit alleged that Ms. Flores Guevara was operating her vehicle
negligently and that her negligence caused Appellants’ injuries.(C.R. at 179-181)
On November 26, 2014, an answer was filed on behalf of Ms. Flores Guevara by
Francisco Martinez, staff counsel for Appellee Loya Insurance Company. (9 App.
at 106)
On December 23, 2014, Ms. Flores Guevara answered discovery.(C.R. at
185-206) In response to Appellants request for disclosure, Ms. Flores Guevara did
not identify any potential parties or persons who could be designated as
responsible third parties.(C.R. at 185-190) Ms. Flores Guevara did not list her
6
husband as a person with knowledge of relevant facts.(C.R. at 185-190) Ms.
Flores Guevara also provided responses to Appellants interrogatories. (C.R. at 191-
196) In doing so, Ms. Flores Guevara identified herself as the driver of the vehicle
involved in the collision with Appellants. (C.R. at 193)
On July 16, 2015, Appellant Osbaldo Hurtado was deposed by Mr.
Martinez.(C.R. at 223-273) Under oath, he identified Ms. Flores Guevara as the
driver of the vehicle involved in the wreck serving as the basis of Cause Number
2014CVT002421.(C.R. at 259,260) Ms. Flores Guevara’s deposition was
scheduled to take place on the same day, but Mr. Martinez, staff counsel for
Appellee, refused to present Ms. Flores Guevara because he claimed that if asked,
Ms. Flores Guevara would testify that her deceased husband, Rodolfo Flores, had
been the driver of the vehicle involved in the collision with Appellants, a position
that would have conflicted with her previous sworn statements. (C.R. at 260-261)
On November 4, 2015, although no claim had ever been made against
Rodolfo Flores, and in spite of the fact that all of the sworn testimony indicated
that Ms. Flores Guevara was the driver of the vehicle involved in the collision,
Appellee sent Appellants’ counsel a letter advising that coverage had been denied.
(C.R. at 211)
On December 28, 2015, Appellee’s staff counsel withdrew from the
7
representation of Ms. Flores Guevara even though the lawsuit against her was
clearly covered by the Loya Insurance policy in question. (4 App. at 92)
Appellee’s staff counsel was not replaced by any other lawyer even though
Appellee never took the position that Ms. Flores Guevara was not covered under
the policy.
On April 12, 2016, the 49th Judicial District of Webb County, Texas entered
a final judgment in cause number 2014CVT002421, the original lawsuit against
Ms. Flores Guevara.(C.R. at 174-177) The court determined that Ms. Flores
Guevara operated her vehicle negligently and that her negligence had proximately
caused Appellant’s injuries. (C.R. at 174) A judgment was rendered against Ms.
Flores Guevara in the amount of two hundred thousand dollars for each Appellant,
plus taxable court costs and pre-judgment and post-judgment interest. (C.R. at 174-
177)
On May 17, 2016, Appellants, as assignees of Ms. Flores Guevara, sued
Appellant Loya Insurance Company for Negligence, Breach of Contract for
Insurance, Bad Faith/ Breach of Duty of Good Faith and Fair Dealing and
Violations of the DTPA because Appellee’s staff counsel withdrew from the
representation of Ms. Flores Guevara even though the claims against her were
clearly covered by the Loya Insurance Policy that was in question.(C.R. at 16-22)
8
On June 17, 2016, Appellee filed its Original Answer and Request for Jury
Trial. (C.R. at 23-26) On July 12, 2016, Appellee produced to Appellants’ counsel
Appellee’s Responses to Defendant’s Request for Disclosure.(12 App. at 175-180)
In its responses, Defendant identified, as people with knowledge of relevant facts,
people wholly unrelated to the case at bar.(12 App. at 175-180)
On August 25, 2016, Appellants’ counsel emailed Appellee’s counsel and
asked that he supplement his responses to Requests for Disclosures to include
persons at Fred Loya with knowledge of the denial of coverage.(7 App. at 102)
Appellants’ counsel also asked for dates to conduct the depositions of Judy Liberto
and Francisco Martinez, two of Appellee’s employees that were involved in the
denial of Assignor’s coverage. (7 App. at 102)
On November 15, 2016, Appellants filed their Motion to Compel and
Motion for Sanctions asking the trial court to compel Appellee to produce the
names of those people with knowledge of relevant facts in the case at bar and order
a date certain by which Appellee must present Appellee’s employees with
knowledge of relevant facts for oral depositions. (C.R. at 59-65)
On November 30, 2016, the trial court ordered Appellee to present for
depositions, within the discovery deadline of January 20, 2017, those
representatives within their control.(2 App. at 22)
9
On January 5, 2017, Appellee filed its Motion for Traditional and No-
Evidence Summary Judgment. (C.R. at 13-129)
On January 20, 2017, Appellants filed their Motion for Continuance asking
the trial court to continue the cause from its trial date of February 20, 2017 to allow
the parties to engage in additional and necessary discovery, including the
depositions of four of Appellee’s employees who had first hand knowledge
regarding the circumstances surrounding the denial of Assignor’s claim as well as
the information regarding the denial of the claim. (C.R. at 141-143)
On January 23, 2017, the trial court signed an order ordering that by
February 2, 2017, Appellee provide potential dates for the depositions of two
individuals identified as being currently employed by Appellee, despite having
previously ordered Appellee to present these employees within the discovery
deadline of January 20, 2017. (C.R. at 146-147) Appellee never presented its
employees for depositions.
On January 26, 2017, Appellants filed their motion for Summary Judgment
and Response in Opposition to Appellee’s Traditional and No-Evidence Motion for
Summary Judgment. (C.R. at 153-211)
On February 2, 2017, the trial court heard Appellee’s Motions for Summary
Judgment and Appellants’ Motion for Continuance and took the Motions for
10
Summary Judgment under advisement and denied Appellants’ Motion for
Continuance stating that enough time for discovery had passed. (2 App.70-71)
On February 2, 2017, the trial court signed an order granting Appellee’s
Traditional and No-Evidence Motion for Summary Judgment. (C.R. at 280)
On February 2, 2017, Appellants filed their Notice of Appeal and this
proceeding followed. (C.R. at 285)
11
SUMMARY OF ARGUMENT
The dispute before the trial court was whether Appellee Loya Insurance
Company had a duty to defend Ms. Flores Guevara in the original lawsuit that was
filed against her by Appellants where they alleged that Ms. Flores Guevara’s
negligence caused their injuries and other damages.
Under the “eight corners rule,” Appellee had a duty to defend Ms. Flores
Guevara in the initial lawsuit against her. It is undisputed that Ms. Flores Guevara
was a covered person under the terms of the insurance policy issued to her by
Appellee. Appellee contracted to provide Ms. Flores Guevara with a defense in
negligence lawsuits against her. Appellants sued Ms. Flores Guevara for
negligence. Appellee denied coverage and did not defend Ms. Flores Guevara
throughout the lawsuit. Ms. Flores Guevara sustained damages as a result of
Appellee’s breach of the duty to defend her.
Appellee’s Traditional Motion for Summary Judgment as to Declaratory
Judgment was improper. Appellee’s request for Declaratory Judgment was no
longer ripe and without merit. The question of duty was not, at this point of the
litigation, a hypothetical question that the parties were asking a court to determine
before they committed to a certain course of conduct—be it breaching the contract
12
or complying with the contract. Appellee had already chosen to breach the contract
in the original lawsuit by not providing Ms. Flores Guevara with a defense. The
subsequent judgment entered in the original lawsuit against Ms. Flores Guevara
had rendered Appellee’s request moot, and appellee had no right to declaratory
judgment even if it had filed the request at the appropriate time.
The trial court erred in granting Appellee’s No-Evidence Motion for
Summary Judgment because No-Evidence Motions must not be conclusory.
Motions for Summary Judgment cannot generally allege that there is no evidence
to support the nonmovant’s claims. Appellee’s No-Evidence Motion for Summary
Judgment was conclusory because it did not state that there was no evidence to
support one or more specific elements of Appellants’ claims.
The trial court erred in granting Appellee’s No-Evidence Motions for
Summary Judgment because No-Evidence Motions for Summary Judgment cannot
be filed until after the nonmovant has had “an adequate time for discovery”. At the
time that Appellee filed its motion, substantial discovery, in the form of
depositions of Appellee’s employees and appropriate responses to written
discovery were still pending.
13
ARGUMENT
I. THIS COURT SHOULD REVERSE THE TRIAL COURT’S
RULING BECAUSE APPELLEE HAD A DUTY TO DEFEND
MS. FLORES GUEVARA
A. THE EIGHT CORNERS RULE REQUIRES THAT AN
INSURANCE COMPANY DEFEND ITS INSURED WHEN A
LAWSUIT’S PLEADINGS FALL WITHIN THE COVERAGE
PROVIDED IN ITS INSURANCE CONTRACT
An insurer's duty to defend is determined by the “eight corners” rule,
looking to the factual allegations contained in the petition and the terms of the
policy. National Union Fire Ins., Co. v. Merch. Fast Motor Lines, Inc., 939 S.W.2d
139, 141 (Tex. 1997). Under the eight corners rule, an insurance company has an
absolute duty to defend its insured when a lawsuit’s pleadings “match-up”/“fall
within” the coverage provided in its insurance contract.
The eight-corners rule provides that Texas courts may look only to the
pleadings and the insurance policy to determine whether a duty to defend exists. Id.
The allegations in the pleadings are considered in light of the policy provisions
without regard to their truth or falsity. Argonaut Sw. Ins. Co. v. Maupin, 500
S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,
387 S.W.2d 22, 24 (Tex.1965). Even if the allegations are groundless, false or
fraudulent, the insurer is obligated to defend. Zurich Am. Ins. Co. v. Nokia, Inc.,
14
268 S.W.3d 487, 491 (Tex. 2008)(emphasis added). The Eight Corners Rule is not
controlled by “what the parties know or believe to be the true facts” Gehan 148
S.W.3d at 838. “A plaintiff’s factual allegations that potentially support a covered
claim is all that is needed to invoke the insurer’s duty to defend.” Guide One Elite
Ins. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006). Facts outside
the pleadings, even those easily ascertained, are not ordinarily material to the
determination of whether the duty to defend exists, and allegations against the
insured are liberally construed in favor of coverage. See Nat’l Union, 939 S.W.2d
at 141.
An insurance liability policy is typically composed of two obligations: a
duty to defend and a duty to indemnify. The duty to defend is broader, than the
duty to indemnity. Cook v. Admiral Ins. Co, 438 F. App’x 313 (5 th Cir.2011).,
citing Lincoln General Ins. Co. v. Aisha Learning Center, 468 F. 3d 857,858(5th
Cir. 2006).
Allegations against the insured are liberally construed in favor of
coverage. Nat’l Union Fire Ins. Co. v. Merchants FastMotor Lines, Inc., 939
S.W.2d 139, 141 (Tex. 1997) (emphasis added).
“We resolve all doubts regarding the duty to defend in favor of that duty.”
King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). The rule is simple:
15
“When in doubt, defend.” Gore, 538 F.3d at 369.
The insurer must defend as long as the complaint alleges at least one claim
within the policy’s language or coverage. Canutillo Indep. School Dist. v. National
Union Fire Ins. Co, 99 F.3d 695,701(5th Cir. 1996); Gehan, 146 S.W.3d at 838.
Under the “Eight Corners” or “Complaint Allegation Rule”, an insurer’s
duty to defend is determined by the third-party plaintiff’s pleadings, considered in
light of the policy provisions, without regard to the truth or falsity of those
allegations. Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex. 1973);
Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965).
The rule takes its name from the fact that only two documents are ordinarily
relevant to the determination of the duty to defend: the policy and the pleadings of
the third-party claimant. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187, 45 Tex.
Sup. Ct. J. 1224 (Tex.2002). Facts outside the pleadings, even those easily
ascertained, are ordinarily not material to the determination.
A plaintiff’s factual allegations that potentially support a covered claim is all
that is needed to invoke the insurer’s duty to defend, Heyden Newport Chemical
Corp., 387 S.W.2d at 26. Whereas, the facts actually established in the underlying
suit control the duty to indemnify. Trinity Universal Ins. Co., 945 S.W.2d at 821.
16
B. THE PLEADINGS OF THE LAWSUIT AGAINST MS. FLORES
GUEVARA FELL WITHIN THE COVERAGE PROVIDED BY
APPELLEE TO MS. FLORES GUEVARA
Appellants sued Ms. Flores Guevara, and only Ms. Flores Guevara for
negligence. (3 Ohio App. 79-81) Ms. Flores Guevara paid money to Appellee in
exchange for Appellee’s promise to defend her in any lawsuits alleging she was
negligent. (4 App. at 92)
The eight-corners rule required that Defendant Loya Insurance compare only
the allegations in the suit against Ms. Flores Guevara with the provisions of Ms.
Flores Guevara’s insurance policy to determine if the allegations fit within the
policy coverage. Although no claim had ever been made against Ms. Flores
Guevara’s husband, the excluded driver, and in spite of the fact that all sworn
testimony as well as the copy of the police report indicated that assignor was the
driver of the vehicle involved in the collision, Appellee sent Appellants’ counsel a
letter advising that coverage had been denied. (3 App. at 79-81, 5 Ohio App. at 94-95, 10
App. at 110)
As Texas law clearly states, if any allegation in the complaint is even
potentially covered by the policy, then the insurer has a duty to defend its insured.
Appellants’ complaint against Ms. Flores Guevara, clearly fell within the
provisions of the insurance policy and Appellee owed Ms. Flores Guevara a duty to
17
defend. At the time Loya Insurance Company denied Ms. Flores Guevara the
benefit of her policy, the only information they had was a privileged hearsay
statement that suggested that an excluded driver was behind the wheel at the time
of the loss. There was no legal basis for the denial. Accordingly, this Court
should reverse the trial court’s finding.
C. THE TEXAS SUPREME COURT HAS NEVER EXPRESSLY
RECOGNIZED AN EXCEPTION TO THE EIGHT CORNERS
RULE
The Fifth Circuit has observed that if it were to recognize an exception to the
eight corners rule, it would likely only do so “when coverage is potentially
implicated and when the extrinsic evidence goes solely to a fundamental issue of
coverage which does not overlap with the merits of or engage the truth or falsity of
any facts alleged in the underlying case.” Northfield Ins. Co. v. Loving Home Care,
Inc., 363 F.3d 523, 531 (5th Cir. 2004). (emphasis in original).
Here, Appellee argues that it owed no coverage or duty to defend Ms. Flores
Guevara because Ms Flores Guevara’s husband, an excluded driver under the
policy, was driving the car at the time of the wreck. However, Appellants only
sued Ms. Flores Guevara and the pleadings do not make any mention or reference
to Ms. Flores Guevara’s husband. (3 App. at 79-81) Any evidence related to Ms.
Flores Guevara’s husband driving the vehicle is extrinsic evidence that is relevant
18
both to coverage and the merits and thus does not fit the exception. Further, the
Fifth Circuit Court of Appeals has rejected similar use of overlapping facts. See
Gulf Chemical & Metallurgical Corp. v. Associated Metals and Minerals Corp., 1
F.3d 365, 367 (5 th Cir. 1993).
In Gulf Chemical one of the plaintiffs in the underlying toxic-tort action
alleged that Gulf was strictly liable because it had sold or shipped molyoxide. Id.
The petition in the lawsuit did not specifically state when Gulf had shipped
molyoxide. Id. However, the petition did allege that the plaintiffs had suffered
injures from exposure to the molyoxide between 1946 and 1990. Id. at 368.
Extrinsic evidence would have established that Gulf had not actually shipped any
molyoxide until January 20, 1986. Id. This would have been three days after the
expiration of the insurance policy that was in question. Id. at 368, 370. Although
the fact at issue concerned both the merits and coverage, the Fifth Circuit, applying
Texas law, rejected the use of extrinsic evidence under these circumstances. Id. at
371.
When the extrinsic evidence directly contradicts the Plaintiffs’ allegations,
the Texas Supreme Court rejects the use of the evidence as an exception to the
eight corners rule because it poses a significant risk of undermining the insured’s
ability to defend itself in the underlying litigation. Guide One Elite Ins. Co. v.
19
Fielder Rd. Baptist Church, 197 S.W.3d 305. Here, the evidence regarding who
was driving the vehicle is extrinsic evidence that would contradict the Hurtado’s
allegations against Ms. Flores Guevara.
Finally, if Appellee “knew” that the allegations in Plaintiffs’s Original
Petition to be untrue, its duty was to establish such facts in defense of its insured,
rather than as an adversary in a declaratory judgment action. Heyden Newport
Chemical Corp. v. S. Gen. Ins. Co., 387 S.W.2d at 25. In this case, Loya used its
insured’s effort to defend against liability, whether true or false, as a sword instead
of a shield. Application of the eight corners rule here conforms with the parties’
contract, and the circumstances of this case present no basis for an exception to the
eight corners rule. Based on the underlying issues, Appellants ask this Court to
reverse the trial court’s ruling and remand this case for further proceedings.
II. THIS COURT SHOULD REVERSE THE TRIAL COURT’S
DECISION ON APPELLEE’S TRADITIONAL MOTION FOR
SUMMARY JUDGMENT ON DECLARATORY JUDGMENT
BECAUSE APPELLEE’S REQUEST WAS NO LONGER RIPE
A. DECLARATORY ACTIONS ARE MOOT IF ONE OF
THE PARTIES HAS ALREADY CHOSEN ITS COURSE
OF CONDUCT
The purpose of a declaratory judgment is to obtain a clarification of one’s
rights. J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 671 (Tex. App.-Houston [1 st
20
Dist.] 1996, no writ). They are preventative in nature and are intended for
determining the rights of parties when a controversy has arisen, even before any
wrong has actually been committed. Id.
A declaratory judgment action is “intended to provide a means of settling a
controversy before it ripens into a violation of the civil or criminal law, or breach
of a contractual duty.” Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5 th Cir.1989).
(citing Scott-Burr Stores Corp. v. Wilcox, 194 F.2d 989, 900 (5 th Cir. 1952));
J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 672 (Tex. App.-Houston [1 st Dist.]
1996, no writ) (holding a declaratory action “is intended as a means for
determining the rights of parties when a controversy has arisen, even before any
wrong has actually been committed.”)
Chapter 12 of the Civil Practice & Remedies Code allows parties to a
contract to ask a court to declare each party’s obligations under the contract before
the question is ripe—in other words, before the question is actually a dispute
between parties before the court. A declaratory action is an exception to the
prohibition against advisory opinions because it allows courts to issue opinions on
matters not actually before the court.
However, the question as to whether Defendant Loya Insurance had a duty
to defend was no longer hypothetical. It was the central question before the trial
21
court. In the context of contract actions, a declaratory action must be brought
before a party either breaches or complies with the contract.
B. THEREFORE, APPELLEE’S REQUEST FOR A
DECLARATORY ACTION, AFTER IT HAD ALREADY
C O M M ITTED TO ITS CO N D U C T, M A K ES TH E
DECLARATORY ACTION MOOT
Appellee chose to pull Ms. Flores Guevara’s coverage and to not defend her
in the original lawsuit against her. Appellee should have asked for declaratory
relief in the original lawsuit, before abandoning their insured. Because the question
before the trial court was whether or not Appellee owed Ms. Flores Guevara a duty
to defend her in the original lawsuit and not the one that this appeal stems from, a
declaratory action was moot and therefore must have been denied.
III. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
A. A NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
MUST NOT BE CONCLUSORY
A no-evidence summary judgment motion may be granted only if the
Plaintiff fails to bring forth any probative evidence that raises a genuine issue of
material fact as to an essential element of the Plaintiff’s claim. Brown v. Brown,
145 S.W.3d 745, 754 (Tex. App.—Dallas 2004, pet. denied) (at Tab D); Miller v.
Elliot, 94 S.W.3d 38, 42 (Tex. App.—Tyler 2008) (at Tab E).
22
The motion must state that there is no evidence to support one or more specific
elements of a claim or defense on which the nonmovant has the burden of proof at
trial. TRCP 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex.2015).;
Boerjan v Rodriguez, 436 S.W.3d 307, 310 (Tex..2014).; Timpte Indus. v. Gish, 286
S.W.3d 306, 310 (Tex.2009). The motion cannot be conclusory or generally allege
that there is no evidence to support the nonmovant’s claim or defense. Timpte Indus.,
286 S.W.3d at 310; Holloway, 282 S.W.3d at 213; Ortiz v. Collins, 203 S.W.3d 414,
425 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).
The purpose of this specificity requirement is to provide the other parties with
fair notice (i.e., provide adequate information for opposing the motion and define the
issue). Timpte Indus., 286 S.W.3d at 311. When a no-evidence motion for summary
judgment does not challenge specific elements, it should be treated as a traditional
motion for summary judgment under TRCP 166c, which imposes the burden of proof
on the movant, not as a motion under TRCP 166a(i), which imposes the burden on
the nonmovant. See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex.App.-Corpus
Christi 2001, no pet.).; Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168
(Tex.App.-Texakana 200, pet. denied).; Weaver v. Highlands Ins., 4 S.W.3d, 829 n.2
(Tex.App.-Corpus Christi 2002, no pet.). (when motion was ambiguous about
23
whether it was no-evidence or traditional motion, court presumed it was filed as
traditional motion under TRCP 166(c).
B. APPELLEE’S NO-EVIDENCE MOTION FOR SUMMARY
JUDGMENT IS CONCLUSORY
Appellee’s No-Evidence Motion for Summary Judgment generally alleges that
there is no evidence to support Appellant’s claim of negligence against Appellee
because there is no evidence of duty. (C.R. at 128) Appellee’s motion is devoid of
any specific allegation relating to any of the other causes of action alleged by
appellants. Instead, Loya Insurance company summarily alleged in its motion that,
“Similarly, since there was no coverage for the underlying accident, and no duty to
defend, there was not breach of contract, bad faith, breach of duty of good faith and
fair dealing, or a violation of the DTPA.”
Loya’s laundry list of causes of action lumped together by the word “similarly”
does not begin to meet the specificity requirement designed to give appellants the fair
notice required by the Rules. See Timpte at 311. The duties for each of the lumped
together cause of action are wildly different than the negligence duty and are not
similar at all.
Appellee’s Motion states, “Plaintiff’s allege that Defendant was negligent,
however, Plaintiff’s have provided no evidence to support their claim of negligence
24
against Defendant. Ms. Flores Guevara’s husband was an excluded driver under her
policy and since he was driving when the March 18, 2013 accident occurred, Loya
owed no coverage or duty to defend Ms. Flores Guevara. Therefore, there was no
negligence on the part of Defendant Loya.” (C.R. at 128)
Because defendant’s motion for summary judgment does not meet the
specificity requirements, and failed to give appellants fair notice, Appellee’s No-
Evidence Motion for Summary Judgment should have been treated by the trial court
as a traditional motion for summary judgment under TRCP 166a(c), imposing the
burden of proof on Appellee rather than on Appellants. See Michael v. Dyke, 41
S.W.3d 746, 751-52 (Tex.App.-Corpus Christi 2001, no pet.); Amouri v. Southwest
Toyota, Inc., 20 S.W.3d 165, 168 (Tex.App.-Texarkana 2000, pet. denied); Weaver v.
Highlands Ins., 4 S.W.3d 826, 829 n.2 (Tex.App.-Houston [1st Dist.] 1999, no pet.);
see also Hamlett v. Holcomb, 69 S.W.3d 816, 819 (Tex.App.-Corpus Christi 2002, no
pet.) (when motion was ambiguous about whether it was no-evidence or traditional
motion, court presumed it was filed as traditional motion under TRCP 166a(c).
C. WHETHER OR NOT ASSIGNOR WAS DRIVING IS
IRRELEVANT AND BARRED BY RES JUDICATA
Within the general doctrine of res judicata, there are two principal categories:
(1) claim preclusion (also known as res judicata and (2) issue preclusion (also known
25
as collateral estoppel). Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628
(Tex.1992). Collateral estoppel or issue preclusion, prevents a party from re-litigating
a particular fact issue that the party already litigated and lost in an earlier suit. State &
Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex.2001).; Quinney Elec., Inc. v.
Kondos Entm’t Inc., 988 S.W.2d 212, 213 (Tex.1999).; Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 628 (Tex. 1992).; City of San Antonio v. Cortes, 468 S.W.3d
580, 586 (Tex.App.-San Antonio 2015, pet. denied). To invoke collateral estoppel, a
party must establish (1) the same facts sought to be litigated in the second suit were
fully litigated in the first suit, (2) those facts were essential to the judgment in the first
suit, and (3) the parties were cast as adversaries in the first suit. Sysco Food Servs. v.
Trapnell, 890 S.W.2d 796, 801 (Tex.1994).; Eagle Props., Ltd. v. Scharbauer, 807
S.W.2d 714, 721 (Tex.1990).
Here, the issue of whether or not Assignor was driving has been fully and
fairly litigated in the original lawsuit. Appellants attached, as Exhibit B of their
Motion for Summary Judgment and Response in Opposition to Appellee’s
Traditional and No-Evidence Motion for Summary Judgment, a copy of the Final
Judgment that was signed and entered in the 49th Judicial District of Webb County,
Texas in Cause Number 2014CVT00241 which found Ms. Flores Guevara negligent
and that her negligence proximately caused Appellants injuries. While Appellee may
26
attempt to argue that it was not a party in the original lawsuit, collateral estoppel bars
a party from re-litigating an issue resolved in an earlier suit against that same party or
someone in privity with that party, Benson v. Wanda Pet. Co., 468 S.W.361, 363
(Tex.1971).; Sysco Food 890 S.W.2d at 802-03. When Ms. Flores Guevara purchased
her insurance policy from Appellee, Appellee contracted to defend Ms Flores.
Guevara in negligence lawsuits against her. Because Appellee was in privity with Ms.
Flores Guevara and Ms. Flores Guevara was a party to the original lawsuit, collateral
estoppel bars Appellee from re-litigating the issue of whether or not Ms. Flores
Guevara was the driver of the vehicle. Therefore, the trial court erred in granting
appellee’s summary judgment for failure to produce evidence that Ms. Flores
Guevara was in fact driving the car at the time of the accident on March 18, 2013,
when that issue had been previously decided and is irrelevant to the issues presented
by this case.
D. ADEQUATE TIME FOR DISCOVERY HAD NOT PASSED
A no-evidence motion for summary judgment cannot be filed until after the
nonmovant has had “adequate time for discovery.” TRCP 166a(i); Fort Brown Villas
III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879. 882 (Tex.2009).; Moorehouse v.
Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex.App.-San Antonio 2002, no pet.).
Although a trial court has broad discretion to deny a request for continuance, a no -
27
evidence summary judgment can be reversed on the ground that the nonmovant did
not have adequate time for discovery. See Brewer & Pritchard, P.C. v. Johnson, 167
S.W.3d 460, 468 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).; TemPay, Inc. v.
TNT Concrete & Constru., Inc., 37 S.W.3d 517, 522-23 (Tex.App.-Austin 2001), pet.
denied).
Whether a nonmovant has had an adequate time is determined on a case by
case basis. See McClure v. Atterbury, 20 S.W.3d 722, 729 (Tex. App.-- Amarillo
1999, no pet.). Courts examine the following factors when determining whether an
adequate time for discovery has passed: (1) the nature of the case; (2) the nature of
the evidence necessary to controvert the no-evidence motion; (3) the length of time
the case has been active; (4) the length of time the no evidence motion has been on
file; and (5) the amount of discovery already conducted. See Restaurant Teams Int'l.,
Inc. v. MG Securities Corp., 95 S.W.3d 336, 339 (Tex. App.-- Dallas 2002, no pet.).
The following are examples of when time for discovery has been considered
adequate: 1.) Three-year old case in which discovery had been pursued for a year and
a half and the most important witness had been deposed. Community Initiatives, 153
S.W.3d at 278-79.; 2.)Twenty-eight-month-old case in which the plaintiff had one
year to develop its case outside of a bankruptcy stay and had already received a
continuance. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston
28
[14th Dist.] 2003, pet. Denied). and 3.) Five year old case in which the plaintiff did not
comply with the scheduling order it requested. Martinez v. City of San Antonio, 40
S.W.3d 57, 591-92 (Tex.App.-San Antonio 2001, pet. denied).
Here, at the time of Appellee’s No-Evidence Motion for Summary Judgment,
this case had only been active for eight months. Further, no continuance had been
requested by either party. Pursuant to the Pre-Trial Guideline Order, the discovery
deadline was January 20, 2017.
The No-Evidence motion for summary Judgment was filed on January5, 2017,
prior to the end of the discovery period. At the time of the filing, discovery in this
matter was substantially incomplete. Specifically, Appellee had failed to present for
depositions those employees which were within its control that had knowledge of the
denial of Assignor’s coverage, despite the fact that Appellee had been twice ordered
by the trial court to present them. Further, Appellee conveniently gave Appellants’s
counsel temporary available dates for these depositions for mid/late February or
March.
The short amount of time along with Appellee’s continued obstruction of
evidence was insufficient to allow for all of the needed depositions. Appellants’
ongoing discovery efforts since the filing of this action show they did not sit idly
29
while valuable discovery time had elapsed. Appellee simply failed to comply with the
multiple court orders ordering it to present its employees for deposition.
Therefore, Appellee’s No-Evidence Motion for Summary Judgment should be
reversed on the ground that Appellant did not have adequate time for discovery.
30
PRAYER
Appellants pray that this Court, REVERSE the trial court’s granting of
Appellee’s Traditional Motion for Summary Judgment and REMAND to the trial
court for further proceedings. Appellants further pray that this Court REVERSE the
trial court’s granting of Appellee’s No-Evidence Motion for Summary Judgment and
REMAND to the trial court for further proceedings.
Respectfully submitted,
THE GREEN LAW FIRM, P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile : (956) 542-7026
jorge@thegreenlawfirmpc.com
letygarza@thegreenlawfirmpc.com
BY: /s/ Jorge A. Green
JORGE A. GREEN
State Bar No. 24038023
LETICIA GARZA
State Bar No. 24092405
ATTORNEYS FOR APPELLANTS
31
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Appellee was
served by electronic service on this 20th day of July, 2017, upon the following
counsel of record:
John R. Lyde
VIDAURRI, LYDE, RODRIGUEZ & HAYNES, LLP
202 N. 10 th Avenue
Edinburg, Texas 78541
(956) 381-6602 Telephone
(956) 381-0725 Fax
rlyde@vlrhlaw.com
BY: /s/ Jorge A. Green
JORGE A. GREEN
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel hereby certifies that, using
WORD PERFECT Count Feature, the foregoing brief was 6,016 words.
BY: /s/ Jorge A. Green
JORGE A. GREEN
32
NO. 04-17-00070-CV
OSBALDO HURTADO AVALOS AND ANTONIO HURTADO, AS
ASSIGNEES OF KARLA FLORES GUEVARA,
Appellants,
v.
LOYA INSURANCE COMPANY,
Appellee
__________________________________________________________________
APPELLANTS’ APPENDIX
______________________________________________________________________________
LIST OF DOCUMENTS
1. The trial court’s order granting Defendant Loya Insurance Company’s
Traditional and No-Evidence Motion for Summary Judgment dated
February 2, 2017.
2. Reporter’s Record Volumes 1-4 in Trial Court Cause No. 2016-CVT-
001431-D2.
3. Plaintiffs’ Original Petition in Trial Court Cause No. 2014CVT002421
dated October 30, 2014.
4. Ms. Guevara’s Declaration Page of her Texas Insurance Policy Issued by
Appellee Loya Insurance Company.
5. Copy of Texas Peace Officer’s Crash Report for the car wreck that occurred
on March 18, 2013 between Osbaldo Hurtado, Antonio Hurtado and Ms.
Guevara.
6. Signed Final Judgment entered in Cause No. 2014CVT002421 dated April
11, 2016.
7. E-mail correspondence, dated August 25, 2016, between Appellants’
attorney and Appellee’s attorney requesting that Appellee supplement its
responses to Requests for Disclosures and dates to conduct the depositions
of Judy Liberto and Francisco Martinez.
8. E-mail correspondence, dated January 31, 2017, between Appellants’
attorney’s staff and Appellee’s attorney requesting that Appellee
supplement its responses to Requests for Disclosures and include a copy of
the insurance policy.
9. Defendant’s Original Answer in Trial Court Cause No. 2014CVT002421
dated November 26, 2014.
10. Appellee Loya Insurance Company’s letter to Appellants’ counsel
withdrawing Ms. Flores Guevara’s representation of counsel in Trial Court
Cause No. 2014CVT002421.
11. Appellee Loya Insurance Company’s Discovery Responses in Trial Court
Cause No. 2014CVT002421.
12. Appellee Loya Insurance Company’s Responses to Appellants’ Requests for
Disclosure in Trial Court Cause No. 2016-CVT-001431-D2.
Respectfully submitted,
THE GREEN LAW FIRM, P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile : (956) 542-7026
jorge@thegreenlawfirmpc.com
letygarza@thegreenlawfirmpc.com
BY: /s/ Jorge A. Green
JORGE A. GREEN
State Bar No. 24038023
LETICIA GARZA
State Bar No. 24092405
ATTORNEYS FOR APPELLANTS
TAB 1
TAB 2
1
1 REPORTER'S RECORD
VOLUME 1 OF 4 VOLUMES
2 TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
APPEAL NO. 04-17-00070-CV
3
OSBALDO HURTADO AVALOS ) IN THE DISTRICT COURT
4 AND ANTONIO HURTADO AS )
ASSIGNEES OF KARLA FLORES )
5 GUEVARA, )
PLAINTIFFS, )
6 ) WEBB COUNTY, TEXAS
)
7 VS. )
)
8 LOYA INSURANCE COMPANY, )
DEFENDANT. ) 111TH JUDICIAL DISTRICT
9
10
11
12
13
*******************************
14 MASTER INDEX
*******************************
15
16
17
18
19
20
21
22
23 VICENTE MENDOZA, TEXAS CSR #6918
OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24 1110 VICTORIA STREET, Suite 301
LAREDO, TEXAS 78040
25 OFFICE (956) 523-4229 FAX (956) 523-5088
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFFS:
3 SBOT NO. 24092405
Leticia "Lety" Garza
4 SBOT NO. 24038023
Jorge A. Green
5 The Green Law Firm, P.C.
34 S. Coria
6 Brownsville, Texas 78520
(956) 542-7000 PHONE
7 (956) 542-7026 FAX
8 FOR THE DEFENDANT:
9 SBOT NO. 12712700
John R. Lyde
10 Vidaurri, Lyde, Rodriguez & Haynes, LLP
202 N. 10th Avenue
11 Edinburg, Texas 78541
(956) 381-6602 PHONE
12 (956) 381-0725 FAX
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1 OF 4 - Master Index
3 VOLUME 2 OF 4
NOVEMBER 30, 2016 PAGE
4
Style of the Case ------------------- 1
5 Appearances ------------------------- 2
Chronological Index ----------------- 3
6 Proceedings Started ----------------- 4
Proceedings Concluded --------------- 13
7 Court Reporter's Certificate -------- 14
8 VOLUME 3 OF 4
JANUARY 19, 2017 PAGE
9
Style of the Case ------------------- 1
10 Appearances ------------------------- 2
Chronological Index ----------------- 3
11 Proceedings Started ----------------- 4
Proceedings Concluded --------------- 14
12 Court Reporter's Certificate -------- 15
13 VOLUME 4 OF 4
FEBRUARY 2, 2017 PAGE
14
Style of the Case ------------------- 1
15 Appearances ------------------------- 2
Chronological Index ----------------- 3
16 Proceedings Started ----------------- 4
Proceedings Concluded --------------- 27
17 Court Reporter's Certificate -------- 28
18
*-*-*-*-*-*-*
19
20
21
22
23
24
25
4
1 THE STATE OF TEXAS )
2 COUNTY OF WEBB )
3
4 I, Vicente Mendoza, Official Court
Reporter for the 111th District Court, Webb County,
5 State of Texas, do hereby certify that the above and
foregoing contains a true and correct transcription
6 of all portions of evidence and other proceedings
requested in writing by counsel for the parties to be
7 included in this volume of the Reporter's Record, in
the above-styled and numbered cause, all of which
8 occurred in open court or in chambers and were
reported by me.
9
I further certify that the Reporter's
10 Record of the proceedings truly and correctly
reflects the exhibits, if any, admitted by the
11 respective parties.
12 I further certify that the total cost
for the preparation of this Reporter's Record is
13 $446.50 and was paid/will be paid by The Green Law
Firm, P.C. by Leticia Garza.
14
15 WITNESS MY OFFICIAL HAND this the 9th
day of February, 2017.
16
17
18
19
20
21
22 _________________________________
Vicente Mendoza, Texas CSR #6918
23 Expiration Date: 12/31/2018
Official Court Reporter - 111th District Court
24 1110 Victoria Street, Suite 301
Laredo, Texas 78040
25 Office (956) 523-4229 Fax (956)523-5088
1
1 REPORTER'S RECORD
VOLUME 2 OF 4 VOLUMES
2 TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
APPEAL NO. 04-17-00070-CV
3
OSBALDO HURTADO AVALOS ) IN THE DISTRICT COURT
4 AND ANTONIO HURTADO AS )
ASSIGNEES OF KARLA FLORES )
5 GUEVARA, )
PLAINTIFFS, )
6 ) WEBB COUNTY, TEXAS
)
7 VS. )
)
8 LOYA INSURANCE COMPANY, )
DEFENDANT. ) 111TH JUDICIAL DISTRICT
9
10
*******************************
11 November 30, 2016
*******************************
12
13 On the 30th day of November 2016, the
14 following proceedings came on to be heard in the
15 above-entitled and numbered cause before the Honorable
16 MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb
17 County, Texas:
18 Proceedings reported by Computerized
19 Stenotype Machine; Reporter's Record produced by
20 Computer-Assisted Transcription.
21
22
23 VICENTE MENDOZA, TEXAS CSR #6918
OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24 1110 VICTORIA STREET, Suite 301
LAREDO, TEXAS 78040
25 OFFICE (956) 523-4229 FAX (956) 523-5088
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFFS:
3 SBOT NO. 24092405
Leticia "Lety" Garza
4 The Green Law Firm, P.C.
34 S. Coria
5 Brownsville, Texas 78520
(956) 542-7000 PHONE
6 (956) 542-7026 FAX
7 FOR THE DEFENDANT:
8 SBOT NO. 12712700
John R. Lyde
9 Vidaurri, Lyde, Rodriguez & Haynes, LLP
202 N. 10th Avenue
10 Edinburg, Texas 78541
(956) 381-6602 PHONE
11 (956) 381-0725 FAX
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 NOVEMBER 30, 2016 PAGE
3 Style of the Case ------------------- 1
4 Appearances ------------------------- 2
5 Chronological Index ----------------- 3
6 Proceedings Started ----------------- 4
7 Proceedings Concluded --------------- 13
8 Court Reporter's Certificate -------- 14
9
*-*-*-*-*-*-*
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 PROCEEDINGS
2 WHEREUPON the following proceedings
3 were had in Open Court, before Court, to-wit:
4 THE BAILIFF: All rise. Please come
5 to order. The 111th District Court is now in
6 session. The Honorable Judge Monica Notzon
7 presiding. (November 30, 2016 - Time: 9:07 a.m.)
8 THE COURT: Good morning everyone.
9 Please be seated.
10 (Whereupon other matters on the
11 Court's docket were heard before the
12 Court)
13 THE COURT: Avalos and Hurtado versus
14 Loya Insurance, 2016-CVT-001431-D2.
15 MR. LYDE: Rick Lyde, Your Honor, on
16 behalf of Loya.
17 MS. GARZA: Lety Garza here for Jorge
18 Green on behalf of the Assignees.
19 THE COURT: All right. Good morning.
20 MR. LYDE: Good morning, Your Honor.
21 THE COURT: All right. What's going
22 on, Counsel?
23 MR. LYDE: We have two motions this
24 morning, Your Honor. One is our motion for leave to
25 designate responsible third party; and, the second is
5
1 their motion to compel.
2 MS. GARZA: On the first one we did
3 file an objection to the motion for leave, Your
4 Honor.
5 MR. LYDE: Yes. That's right.
6 THE COURT: All right. Let's take the
7 motion for leave first.
8 MR. LYDE: Very good, Your Honor.
9 Your Honor, this case originally involves an
10 automobile accident that occurred back in March
11 of 2013. The responsible third party that we are
12 requesting to be allowed to designate is a Ms.
13 Guevara. Back at that time she was a Loya automobile
14 policy insured. Okay? But, her policy had the
15 exclusion that her husband was excluded as an
16 insured. Okay?
17 So, what happens is that back in March
18 of 2013, the Guevara vehicle has an automobile
19 accident with the Hurtados, who are the Plaintiffs in
20 this case. Okay? Originally, Ms. Guevara tells Loya,
21 oh, I was driving, which means of course there's
22 potential insurance. So, the claim is made by the
23 Hurtados against Ms. Guevara, a lawsuit is filed,
24 discovery is done, and the case is proceeding. But,
25 right before Ms. Guevara is set to be deposed she
6
1 tells her attorney at that time, she says, okay, I've
2 got to confess I wasn't driving. It was my husband.
3 Okay?
4 And what happened was that he entered
5 into this scheme after the accident with the Hurtados
6 to say that he [sic] was driving so that there be
7 insurance coverage, because otherwise --
8 THE COURT: To say is that she was
9 driving?
10 MR. LYDE: To say that she was
11 driving. Correct. She shows up at the scene. She
12 agrees to go along with that. All right? And that's
13 the way the police report reads, that she's the
14 driver, and we have that down cold, Your Honor, by
15 the way.
16 First of all, we have a recorded
17 statement from Ms. Guevara that says all of that.
18 Then in September I took her deposition, and we got
19 all of that, that her husband agreed to this with the
20 Hurtados, that she originally said she was driving.
21 It's all in the deposition. And in fact, Your Honor,
22 if the Court will look at our motion for leave, we've
23 attached copies of the depo pages. So, all of that
24 is proven up. Okay? Anyway, as soon as Loya hears
25 that, they withdraw the Defense for Ms. Guevara in
7
1 the case, as far as the Hurtados are concerned, and
2 they deny coverage.
3 Then the Hurtado's go on to take
4 summary judgment against Ms. Guevara in the
5 underlying case, each for $200,000, and they
6 convinced her, after they take these summary
7 judgments, to assign any rights that she may have
8 against Loya for wrongful denial of coverage.
9 So, that's what this case is. It is,
10 basically, that the Hurtado's are trying to use Ms.
11 Guevara's alleged claims against Loya for this
12 wrongful denial of coverage to get their money.
13 That's what is going on.
14 THE COURT: Okay. So, tell me about
15 your motion for leave.
16 MR. LYDE: We, basically, put
17 everything that I've just told the Court in our
18 motion, okay? Again, we're trying to designate Ms.
19 Guevara as the responsible third party.
20 The other side has raised three
21 objections, and one of those objections -- quite
22 honestly I don't understand -- but, they're saying
23 that she's not, Ms. Guevara, that she can't be
24 individually liable in this case. First of all I
25 disagree with that completely based on the facts.
8
1 THE COURT: Well, if she wasn't
2 driving, how is she a responsible third party?
3 MR. LYDE: Because of a the collusion
4 and the fraud that went into trying to generate the
5 excess coverage.
6 THE COURT: Hum. All right. Okay.
7 MR. LYDE: Okay. So, anyway, the
8 stuff about her being individually responsible, I
9 don't know where they are coming from with that.
10 Under Section 33 we have to show that the potential
11 responsible third party caused or contributed to
12 cause the damages being claimed.
13 THE COURT: All right.
14 MR. LYDE: That's what we have to
15 show. Obviously, we've pled enough facts to indicate
16 that in here.
17 THE COURT: Well, you did plead enough
18 facts, but I don't know if it's indicative of the
19 responsible third party motion or I don't know if it
20 supports that motion; but, let me hear you on your
21 objections, Counsel?
22 MS. GARZA: Okay. Your Honor, in that
23 first lawsuit -- our position is that that first
24 lawsuit has been completely disposed of by a court
25 and we've taken a judgment. And so, the idea that
9
1 our clients colluded to defraud or anything, that is
2 not related to this in any way, shape, or form.
3 In the first lawsuit what we had was
4 the 8-corners doctrine basically saying that there
5 was a complaint against Ms. Guevara, and her husband
6 was never addressed to in that complaint, and we had
7 an insurance policy that clearly covered that
8 complaint. They withdrew their representation of Ms.
9 Guevara in that first lawsuit when the policy was
10 clearly attached to the complaint.
11 THE COURT: But it sounds like they
12 have good grounds.
13 MS. GARZA: Except for the fact that
14 we also have signed discovery responses from her that
15 are verified where she stated that she was the driver
16 of the vehicle.
17 THE COURT: Okay. But you have a
18 client that's obviously lied, at least once, to both
19 of you.
20 MS. GARZA: It's our position that the
21 lawsuit that we are here for today is completely
22 independent from the damages sustained in that car
23 accident. We are here because of the fact that they
24 did not apply the 8 corners doctrine and withdrew
25 coverage from that.
10
1 THE COURT: All right. So, what are
2 your objections to the motion for leave to designate
3 Ms. Guevara as a responsible third party?
4 MS. GARZA: Our objection is
5 that she's not a responsible third party because --
6 well one, we've said that they didn't plead enough
7 facts, but that the facts that, hum -- anything that
8 she said or did in response to that first accident is
9 completely unrelated. That's been disposed of by a
10 court. We have a signed judgment that already
11 addressed that.
12 THE COURT: So, if the accident has
13 been resolved, in other words, there's a judgment,
14 what is the lawsuit that's pending now here?
15 MS. GARZA: It is for, Your Honor,
16 negligence -- if you give me one second (reviewing
17 cell phone) I can --
18 MR. LYDE: Again, they have been
19 assigned, the Hurtados, they have been assigned the
20 potential claims of Ms. Guevara.
21 THE COURT: But is it for denial of
22 coverage?
23 MR. LYDE: Yes. Yes. They've got
24 negligence, breach of contract, DTPA.
25 THE COURT: Then your motion is
11
1 different. I thought we were still in the original
2 accident.
3 MR. LYDE: I'm so sorry, Judge. I
4 should have made myself clear.
5 MS. GARZA: No, Your Honor. That
6 accident has been disposed of. In fact, we have a
7 signed final judgment on that first accident, which
8 is why we continue to say that she is not a
9 responsible third party in this situation.
10 THE COURT: All right. But, that
11 changes the nature of the motion then. All right.
12 So, what are your legal objections then?
13 MS. GARZA: (Reviewing cell phone)
14 That they didn't plead enough facts to state that she
15 is a responsible third party, that she is not
16 independently liable for this accident; but, if we
17 tell the jury to apportion responsibility to her,
18 it's wholly unrelated because that was related to the
19 first accident.
20 THE COURT: I'm granting it, Counsel.
21 MR. LYDE: Thank you, Your Honor.
22 THE COURT: I need your order.
23 MR. LYDE: Your Honor, we will have
24 that for the Court this afternoon.
25 THE COURT: Oh, I'm looking at it
12
1 right here.
2 MR. LYDE: Oh, thank goodness.
3 THE COURT: All right. What else do
4 we have?
5 MR. LYDE: We have their motion to
6 compel to compel against us, Your Honor.
7 MS. GARZA: And I've looked through
8 our file, and it seems like Mr. Lyde's office has
9 produced already some responses to the requests for
10 disclosure. The issues that we were having was that
11 he produce the names that were related to the first
12 accident and not the name of the insurance adjuster
13 or any other employees or agents of defendant.
14 I think at this point he already has
15 that. The only thing that we would respectfully ask
16 the Court is to order Mr. Lyde to produce them for
17 deposition within 30-45 days because we have a
18 February trial date coming up.
19 MR. LYDE: Your Honor, we have no
20 problem with producing them before the discovery
21 deadline; and, just so that the Court is aware, there
22 are only two that are still with the company. The
23 ex-employees, obviously, I don't have any -- one of
24 them retired -- I don't have any control over them,
25 but I'll be happy to contact them if I can; but, I
13
1 cannot make a representation about those folks. My
2 two, of course, I will produce before the discovery
3 deadline if they want to take them.
4 THE COURT: That's ordered then.
5 Okay.
6 MR. LYDE: Thank you, Your Honor.
7 MS. GARZA: Thank you, Your Honor.
8 May I be excused?
9 THE COURT: Yes.
10 (Whereupon other matters on the
11 Court's docket were heard before the
12 Court)
13
14 *-*-*-*-*-*-*-*-*-*
15 PROCEEDINGS CONCLUDED
16 *-*-*-*-*-*-*-*-*-*
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14
1 THE STATE OF TEXAS )
2 COUNTY OF WEBB )
3
4 I, Vicente Mendoza, Official Court
Reporter for the 111th District Court, Webb County,
5 State of Texas, do hereby certify that the above and
foregoing contains a true and correct transcription
6 of all portions of evidence and other proceedings
requested in writing by counsel for the parties to be
7 included in this volume of the Reporter's Record, in
the above-styled and numbered cause, all of which
8 occurred in open court or in chambers and were
reported by me.
9
I further certify that the Reporter's
10 Record of the proceedings truly and correctly
reflects the exhibits, if any, admitted by the
11 respective parties.
12 I further certify that the total cost
for the preparation of this Reporter's Record is $See
13 Original printed transcript, Volume 1 and was
paid/will be paid by The Green Law Firm, P.C. by
14 Leticia Garza.
15
WITNESS MY OFFICIAL HAND this the 9th
16 day of February, 2017.
17
18
19
20
21
22 _________________________________
Vicente Mendoza, Texas CSR #6918
23 Expiration Date: 12/31/2018
Official Court Reporter - 111th District Court
24 1110 Victoria Street, Suite 301
Laredo, Texas 78040
25 Office (956) 523-4229 Fax (956)523-5088
1
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CHRONOLOGICAL 1:23, 4:8, 4:13, 4:19, 8:2
2016-CVT-001431-D 11:7, 11:16, 11:19,
[1] - 3:1 4:21, 5:6, 6:8, 7:14, DTPA [1] - 10:24
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2017 [1] - 14:16 addressed [2] - 9:6,
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claim [1] - 5:22 10:12, 10:21, 10:25,
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381-6602 [1] - 2:10 Appearances [1] - 3:4
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14:25
attached [2] - 6:23, [1] - 1:20 13:3 facts [6] - 7:25, 8:15,
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2:11 Honorable [2] - 1:15, lawsuit [7] - 5:23, MY [1] - 14:15 P.C. [2] - 2:4, 14:13
February [2] - 12:18, 4:6 8:23, 8:24, 9:3, 9:9, PAGE [1] - 3:2
14:16 hum [2] - 8:6, 10:7 9:21, 10:14 N pages [1] - 6:23
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4:2 I looking [1] - 11:25 NOTZON [1] - 1:16 11:13
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5:25, 6:17, 6:25, 7:4, Mendoza [2] - 14:4, Official [2] - 14:4, proceeding [1] - 5:24
7:19, 7:23, 9:5, 9:9, J 14:22 14:23 proceedings [5] -
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held [1] - 1:16 4:23, 5:5, 5:8, 6:10, originally [3] - 5:9,
hereby [1] - 14:5 KARLA [1] - 1:4 7:16, 8:3, 8:7, 8:14, 5:20, 6:20
honestly [1] - 7:22 10:18, 10:23, 11:3, OSBALDO [1] - 1:3
Q
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4:20, 4:24, 5:4, 5:8, 12:5, 12:19, 13:6
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10:15, 11:5, 11:21, Laredo [2] - 1:16, 8:22, 9:13, 9:20,
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show [2] - 8:10, 8:15 true [1] - 14:5
raised [1] - 7:20 shows [1] - 6:11 truly [1] - 14:10
reads [1] - 6:13 sic [1] - 6:6 trying [3] - 7:10, 7:18,
RECORD [1] - 1:1 side [1] - 7:20 8:4
Record [4] - 1:19, signed [3] - 9:14, two [3] - 4:23, 12:22,
14:7, 14:10, 14:12 10:10, 11:7 13:2
recorded [1] - 6:16 situation [1] - 11:9
reflects [1] - 14:10 soon [1] - 6:24 U
related [3] - 9:2, sorry [1] - 11:3
11:18, 12:11 sounds [1] - 9:11 under [1] - 8:10
report [1] - 6:13 Started [1] - 3:6 underlying [1] - 7:5
reported [2] - 1:18, state [1] - 11:14 unrelated [2] - 10:9,
14:8 STATE [1] - 14:1 11:18
Reporter [2] - 14:4, State [1] - 14:5 up [3] - 6:11, 6:24,
14:23 statement [1] - 6:17 12:18
REPORTER [1] - 1:23 Stenotype [1] - 1:19
REPORTER'S [1] - 1:1 still [2] - 11:1, 12:22 V
Reporter's [5] - 1:19, STREET [1] - 1:24
3:8, 14:7, 14:9, vehicle [2] - 5:18, 9:16
Street [1] - 14:24
14:12 verified [1] - 9:15
stuff [1] - 8:8
representation [2] - versus [1] - 4:13
Style [1] - 3:3
9:8, 13:1 Vicente [2] - 14:4,
styled [1] - 14:7
requested [1] - 14:6 14:22
Suite [2] - 1:24, 14:24
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summary [2] - 7:4, 7:6
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resolved [1] - 10:13 VICTORIA [1] - 1:24
sustained [1] - 9:22
respectfully [1] - Vidaurri [1] - 2:9
Volume [1] - 14:13
12:15 T VOLUME [1] - 1:1
respective [1] - 14:11
response [1] - 10:8 TEXAS [4] - 1:6, 1:23, volume [1] - 14:7
responses [2] - 9:14, 1:24, 14:1 VOLUMES [1] - 1:1
12:9 Texas [6] - 1:17, 2:5, VS [1] - 1:7
responsibility [1] - 2:10, 14:5, 14:22,
11:17 14:24 W
responsible [11] - THE [29] - 1:3, 2:2,
2:7, 4:4, 4:8, 4:13, WEBB [2] - 1:6, 14:2
4:25, 5:11, 7:19, 8:2,
8:8, 8:11, 8:19, 10:3, 4:19, 4:21, 5:6, 6:8, Webb [2] - 1:16, 14:4
10:5, 11:9, 11:15 7:14, 8:1, 8:6, 8:13, WHEREUPON [1] -
retired [1] - 12:24 8:17, 9:11, 9:17, 4:2
reviewing [2] - 10:16, 10:1, 10:12, 10:21, wholly [1] - 11:18
11:13 10:25, 11:10, 11:20, wit [1] - 4:3
Rick [1] - 4:15 11:22, 11:25, 12:3, withdraw [1] - 6:25
rights [1] - 7:7 13:4, 13:9, 14:1 withdrew [2] - 9:8,
rise [1] - 4:4 they've [1] - 10:23 9:24
Rodriguez [1] - 2:9 third [10] - 4:25, 5:11, WITNESS [1] - 14:15
7:19, 8:2, 8:11, 8:19, words [1] - 10:13
10:3, 10:5, 11:9, writing [1] - 14:6
S wrongful [2] - 7:8,
11:15
SBOT [2] - 2:3, 2:8 three [1] - 7:20 7:12
scene [1] - 6:11 to-wit [1] - 4:3
scheme [1] - 6:5 today [1] - 9:21
seated [1] - 4:9 took [1] - 6:18
second [2] - 4:25, total [1] - 14:12
10:16 transcript [1] - 14:13
Section [1] - 8:10 Transcription [1] -
See [1] - 14:12 1:20
September [1] - 6:18 transcription [1] -
session [1] - 4:6 14:5
set [1] - 5:25 TRIAL [1] - 1:2
1
1 REPORTER'S RECORD
VOLUME 3 OF 4 VOLUMES
2 TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
APPEAL NO. 04-17-00070-CV
3
OSBALDO HURTADO AVALOS ) IN THE DISTRICT COURT
4 AND ANTONIO HURTADO AS )
ASSIGNEES OF KARLA FLORES )
5 GUEVARA, )
PLAINTIFFS, )
6 ) WEBB COUNTY, TEXAS
)
7 VS. )
)
8 LOYA INSURANCE COMPANY, )
DEFENDANT. ) 111TH JUDICIAL DISTRICT
9
10
*******************************
11 January 19, 2017
*******************************
12
13 On the 19th day of January 2017, the
14 following proceedings came on to be heard in the
15 above-entitled and numbered cause before the Honorable
16 MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb
17 County, Texas:
18 Proceedings reported by Computerized
19 Stenotype Machine; Reporter's Record produced by
20 Computer-Assisted Transcription.
21
22
23 VICENTE MENDOZA, TEXAS CSR #6918
OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24 1110 VICTORIA STREET, Suite 301
LAREDO, TEXAS 78040
25 OFFICE (956) 523-4229 FAX (956) 523-5088
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFFS:
3 SBOT NO. 24038023
Jorge A. Green
4 The Green Law Firm, P.C.
34 S. Coria
5 Brownsville, Texas 78520
(956) 542-7000 PHONE
6 (956) 542-7026 FAX
7 FOR THE DEFENDANT:
8 SBOT NO. 12712700
John R. Lyde
9 Vidaurri, Lyde, Rodriguez & Haynes, LLP
202 N. 10th Avenue
10 Edinburg, Texas 78541
(956) 381-6602 PHONE
11 (956) 381-0725 FAX
12
13
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15
16
17
18
19
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21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 JANUARY 19, 2017 PAGE
3 Style of the Case ------------------- 1
4 Appearances ------------------------- 2
5 Chronological Index ----------------- 3
6 Proceedings Started ----------------- 4
7 Proceedings Concluded --------------- 14
8 Court Reporter's Certificate -------- 15
9
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4
1 PROCEEDINGS
2 WHEREUPON the following proceedings
3 were had in Open Court, before Court, to-wit:
4 THE BAILIFF: All rise. Please come
5 to order. The 111th District Court is now in
6 session. The Honorable Judge Monica Notzon
7 presiding. (January 19, 2017 - Time: 9:07 a.m.)
8 THE COURT: Good morning everyone.
9 Please be seated.
10 (Whereupon other matters on the
11 Court's docket were heard)
12 THE COURT: Avalos and Hurtado versus
13 Loya Insurance, 2016-CVT-001431-D2.
14 MR. LYDE: We've got a motion to
15 compel, Your Honor.
16 THE COURT: How long are you
17 anticipating?
18 MR. LYDE: Not more than 15 minutes.
19 THE COURT: Let me just get through my
20 docket, and I'll recall you.
21 MR. LYDE: Is that accurate?
22 MR. GREEN: That's accurate.
23 THE COURT: All right. I'll recall.
24 (Whereupon other matters on the
25 Court's docket were heard)
5
1 (Case recalled)
2 THE COURT: On Avalos and Hurtado
3 versus Loya Insurance, 2016-CVT-001431-D2, I have the
4 lawyers standing by.
5 (Whereupon other matters on the
6 Court's docket were heard)
7 (Case recalled)
8 THE COURT: Avalos and Hurtado versus
9 Loya Insurance, 2016-CVT-001431-D2. All right.
10 Motion to compel, Counsel?
11 MR. LYDE: Yes, Your Honor. We're
12 asking that two different things be compelled. One
13 is that we get some discovery responses that we
14 haven't received yet; and, the second thing that
15 we're asking, is that the Plaintiffs be presented for
16 deposition before the discovery deadline.
17 I think the discovery deadline is
18 tomorrow; but, we're asking that they be presented
19 for depos. I think that for the Court to understand
20 the importance of the motion to compel that the Court
21 needs to know a little bit of background about the
22 case. For the Court to know, this actually, this
23 case, it actually involved an earlier case. Okay?
24 It's a completely separate earlier case. And the
25 earlier case involved an automobile accident in March
6
1 of 2013; and, the Hurtados, the Plaintiffs in this
2 case, they sued a Ms. Guevara in that separate case.
3 THE COURT: Oh, I think I remember.
4 This is the case where one client lied about the
5 other client driving or something like that?
6 MR. LYDE: Yeah. What happens is that
7 the case goes along, the lawyers are providing a
8 defense for Ms. Guevara; and, right before she is
9 deposed she tells her counsel, there is something
10 that you need to know. I wasn't the one driving the
11 car. It was my husband.
12 He was an excluded driver, and we got
13 together with the Hurtados at the scene and said,
14 well, we are going to say that I was driving so that
15 there is coverage. Okay.
16 So, with regards to Ms. Guevara, just
17 so that the Court knows, we've got a recorded
18 statement from her. We've, additionally, taken her
19 deposition in this cause, and she testified exactly
20 to what I've just told the Court.
21 THE COURT: So, who do you need to
22 depose?
23 MR. LYDE: I want to depose the
24 Plaintiffs. Okay? But, before I get to that let me
25 talk about the discovery that we have.
7
1 MR. GREEN: Well, if I may just point
2 out to Your Honor is that she is a plaintiff. So,
3 Ms. Guevara is a Fred Loya insured. We took an
4 assignment from Ms. Guevara in this case, this
5 defendant, and he's taken the Plaintiff's deposition.
6 THE COURT: But not the Hurtados?
7 MR. LYDE: Exactly.
8 MR. GREEN: And the reason that he has
9 not taken the Hurtados' deposition is because -- this
10 case is about whether or not Fred Loya Insurance owed
11 Ms. Guevara any coverage. So, it's not as simple as
12 Mr. Lyde has sort of made it out to be; and, I think
13 that there may have been some confusion because I
14 think that the Court even recently had designated Ms.
15 Guevara as responsible third party, which I think
16 that it results sort of from the confusion of -- the
17 suggestion that the other case is somehow still
18 relevant in this case. But, Ms. Guevara --
19 THE COURT: Counsel, do you have
20 control over the Hurtados?
21 MR. GREEN: I do, Your Honor. But,
22 the Hurtados have been deposed. So, Francisco
23 Martinez, the lawyer --
24 THE COURT: They have been deposed?
25 MR. LYDE: Yes. But, not on this
8
1 case, and not both in the other case. In the other
2 case one was deposed.
3 THE COURT: I see.
4 MR. LYDE: Neither has been deposed in
5 our case about conversations there at the scene, you
6 know, who agreed to what, you know, all that kind of
7 good stuff.
8 So, the discovery, putting aside the
9 fact that there are at least six items for both
10 Plaintiffs that said -- they said that they would
11 supplement, and we never received that, putting aside
12 that issue; they objected to things like give us
13 criminal backgrounds. What about other lawsuits?
14 Tell us about your educational
15 history, all of those things; and, in addition, as
16 far as interrogatories, we had asked them about,
17 well, we want to know if there are any conversations
18 that you've had with Loya. We want to know if there
19 are any admissions against interest that you are
20 going to be claiming against us. We want to know
21 what conversations you've had with Ms. Guevara.
22 THE COURT: So, do you want to go
23 through the discovery one by one, because it sounds
24 like matters I'd likely compel.
25 MR. GREEN: Well, and I think that
9
1 what is important to remember, again Judge, is that
2 my clients are assignees. So, it's Ms. Guevara's
3 claim against Fred Loya that we had taken an
4 assignment of.
5 THE COURT: I'm going to compel the
6 depos of the Hurtados; and, I am also going to compel
7 the discovery if that's what I see. So, you can
8 confer on it; or, you can supplement within a certain
9 amount of time; or, we can start going down one by
10 one.
11 MR. LYDE: Judge, what I would prefer,
12 if the Court would, if the trial setting is going to
13 be good, then I need those depos in at least the next
14 two weeks, and I need the discovery responses before
15 that if the trial date is going to be good.
16 THE COURT: What's the trial date?
17 MR. LYDE: The 20th of February.
18 THE COURT: Have you been to mediation
19 on this case?
20 MR. LYDE: No, ma'am. We have not
21 been to mediation.
22 THE COURT: I'd like to compel their
23 depos then within the next two weeks, as well as any
24 discovery supplementation before you come back on the
25 compel.
10
1 I can hold the compel in abeyance to
2 see if you can get it done in two weeks; but, I am
3 going to order at least a half day mediation between
4 the parties.
5 MR. GREEN: That first case, it was
6 reduced to a judgment. So, the car accident case is
7 done. These people were in a car accident. This
8 case is about whether or not Fred Loya owed Karla
9 Guevara coverage.
10 THE COURT: Right. I understand, but
11 that's my ruling.
12 MR. GREEN: I understand. They've
13 been asked a bunch of questions. Who was driving the
14 car? All of this, was asked a million times in the
15 first deposition. So, it would be abusive for Mr.
16 Lyde to come back and ask the same questions over
17 again. If these people are going to be deposed
18 again, Your Honor, can we limit it to questions that
19 were not asked in the initial deposition?
20 THE COURT: Counsel, I'm going to give
21 him leeway. He's a lawyer on this case, and it's a
22 new case. So, he has a right to depose them, but
23 watch your questions, Mr. Lyde.
24 MR. LYDE: I will, Your Honor. And if
25 we could have the discovery responses supplemented,
11
1 particularly about conversations and documents
2 between the Guevaras and Mr. Flores, her husband.
3 I mean, those are the things that
4 we're looking for. So, if we can have that
5 supplemented within a week and then get the depos of
6 the Plaintiffs within two weeks -- Your Honor, just
7 the discovery responses might allow us to go to
8 mediation. Okay?
9 THE COURT: Then why are we taking the
10 depos?
11 MR. LYDE: Well, I mean, if we know
12 what they are going to be contending as far as
13 conversations that they had with Loya and documents
14 that they got from Loya and the conversations that
15 they had with Ms. Guevara and her husband, and the
16 documents they got from her; to be honest, I pretty
17 well know, you know, but I still want to depose these
18 people. But, it still might be enough for us to go
19 to mediation, but I have to know at least that
20 information.
21 MR. GREEN: I think an important
22 question, Judge, is: What does he think he gets by
23 proving -- and it didn't happen that way.
24 There's a lot of motivation for her to
25 be saying this. Okay? When she was supposed to sit
12
1 for her deposition, okay, at that point we were
2 outside the statute of limitations; and, at the time
3 that she was claiming that her husband was driving
4 the car, her husband had died.
5 So, we were outside the statute of
6 limitations and could no longer sue her husband. At
7 that point, the police report, my client's sworn
8 testimony, her sworn testimony in interrogatory
9 responses, those all indicate that she was driving
10 the car.
11 THE COURT: All right. Supplement
12 within a week and depos within two weeks. If you
13 need my intervention, let me know.
14 MR. LYDE: Thank you, Your Honor.
15 Your Honor, I'll work up an appropriate order and get
16 it to Mr. Green and get it to the Court.
17 MR. GREEN: And, Your Honor, so that
18 we don't have to come back on other things, Your
19 Honor, this goes both ways? Mr. Lyde, because he has
20 treated this like a car accident case the whole time,
21 he hasn't given me dates for the deposition of Fred
22 Loya's staff counsel at the time, which was Francisco
23 Martinez and the insurance adjusters that denied this
24 lady coverage. And I'm going to need it. We are
25 going to do all of those things.
13
1 I'm going to need those depositions as
2 well. So, can the Court order that within the same
3 timeframe that we can work on dates for those people
4 as well?
5 THE COURT: All right.
6 MR. LYDE: I can provide him dates
7 during this time period but only for people that I
8 have control over. Okay?
9 THE COURT: All right.
10 MR. LYDE: Now, getting those done
11 within that time period, I can't say that; but, I can
12 certainly give him dates.
13 THE COURT: All right. Two weeks.
14 MR. LYDE: Very good then.
15 COURT COORDINATOR: As far as the jury
16 trial, it was moved to the 21st. I sent a notice
17 after the holidays.
18 MR. LYDE: I misspoke, Your Honor. We
19 did get that notice, Your Honor.
20 THE COURT: Okay. All right. But,
21 let me know if you need a continuance.
22 MR. LYDE: Okay, Your Honor. We will.
23 Thank you Your Honor.
24 THE COURT: All right, Counsel. Have
25 a good day.
14
1 MR. GREEN: Thank you, Your Honor.
2 (Whereupon other matters were had
3 before the Court)
4
5
6
7 *-*-*-*-*-*-*-*-*-*
8 PROCEEDINGS CONCLUDED
9 *-*-*-*-*-*-*-*-*-*
10
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15
1 THE STATE OF TEXAS )
2 COUNTY OF WEBB )
3
4 I, Vicente Mendoza, Official Court
Reporter for the 111th District Court, Webb County,
5 State of Texas, do hereby certify that the above and
foregoing contains a true and correct transcription
6 of all portions of evidence and other proceedings
requested in writing by counsel for the parties to be
7 included in this volume of the Reporter's Record, in
the above-styled and numbered cause, all of which
8 occurred in open court or in chambers and were
reported by me.
9
I further certify that the Reporter's
10 Record of the proceedings truly and correctly
reflects the exhibits, if any, admitted by the
11 respective parties.
12 I further certify that the total cost
for the preparation of this Reporter's Record is $See
13 Original printed transcript, Volume 1 and was
paid/will be paid by The Green Law Firm, P.C. by
14 Leticia Garza.
15
WITNESS MY OFFICIAL HAND this the 9th
16 day of February, 2017.
17
18
19
20
21
22 _________________________________
Vicente Mendoza, Texas CSR #6918
23 Expiration Date: 12/31/2018
Official Court Reporter - 111th District Court
24 1110 Victoria Street, Suite 301
Laredo, Texas 78040
25 Office (956) 523-4229 Fax (956)523-5088
1
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381-0725 [1] - 2:11 AS [1] - 1:4 completely [1] - 5:24 date [2] - 9:15, 9:16 far [3] - 8:16, 11:12,
381-6602 [1] - 2:10 aside [2] - 8:8, 8:11 Computer [1] - 1:20 dates [4] - 12:21, 13:3, 13:15
ASSIGNEES [1] - 1:4 Computer-Assisted 13:6, 13:12 FAX [3] - 1:25, 2:6,
4 assignees [1] - 9:2 [1] - 1:20 deadline [2] - 5:16, 2:11
assignment [2] - 7:4, Computerized [1] - 5:17 Fax [1] - 15:25
4 [2] - 1:1, 3:6 1:18 defendant [1] - 7:5 February [2] - 9:17,
9:4
Assisted [1] - 1:20 CONCLUDED [1] - DEFENDANT [2] - 1:8, 15:16
5 automobile [1] - 5:25 14:8 2:7 Firm [2] - 2:4, 15:13
AVALOS [1] - 1:3 Concluded [1] - 3:7 defense [1] - 6:8 first [2] - 10:5, 10:15
523-4229 [2] - 1:25, denied [1] - 12:23 Flores [1] - 11:2
Avalos [3] - 4:12, 5:2, confer [1] - 9:8
15:25 depos [7] - 5:19, 9:6,
5:8 confusion [2] - 7:13, FLORES [1] - 1:4
523-5088 [1] - 1:25 9:13, 9:23, 11:5,
Avenue [1] - 2:9 7:16 following [2] - 1:14,
542-7000 [1] - 2:5 11:10, 12:12 4:2
contains [1] - 15:5
542-7026 [1] - 2:6 depose [4] - 6:22, FOR [2] - 2:2, 2:7
B contending [1] - 11:12
6:23, 10:22, 11:17
continuance [1] - foregoing [1] - 15:5
background [1] - 5:21 13:21 deposed [6] - 6:9, Francisco [2] - 7:22,
backgrounds [1] - control [2] - 7:20, 13:8 7:22, 7:24, 8:2, 8:4, 12:22
2
Fred [5] - 7:3, 7:10, included [1] - 15:7 likely [1] - 8:24 MY [1] - 15:15 PHONE [2] - 2:5, 2:10
9:3, 10:8, 12:21 INDEX [1] - 3:1 limit [1] - 10:18 plaintiff [1] - 7:2
Index [1] - 3:5 limitations [2] - 12:2, N Plaintiff's [1] - 7:5
G indicate [1] - 12:9 12:6 PLAINTIFFS [2] - 1:5,
information [1] - LLP [1] - 2:9 need [8] - 6:10, 6:21, 2:2
Garza [1] - 15:14 11:20 looking [1] - 11:4 9:13, 9:14, 12:13, Plaintiffs [5] - 5:15,
given [1] - 12:21 initial [1] - 10:19 LOYA [1] - 1:8 12:24, 13:1, 13:21 6:1, 6:24, 8:10, 11:6
GREEN [10] - 4:22, Insurance [4] - 4:13, Loya [10] - 4:13, 5:3, needs [1] - 5:21 point [3] - 7:1, 12:1,
7:1, 7:8, 7:21, 8:25, 5:3, 5:9, 7:10 5:9, 7:3, 7:10, 8:18, never [1] - 8:11 12:7
10:5, 10:12, 11:21, INSURANCE [1] - 1:8 9:3, 10:8, 11:13, new [1] - 10:22 police [1] - 12:7
12:17, 14:1 insurance [1] - 12:23 11:14 next [2] - 9:13, 9:23 portions [1] - 15:6
Green [4] - 2:3, 2:4, insured [1] - 7:3 Loya's [1] - 12:22 NO [4] - 1:2, 1:2, 2:3, prefer [1] - 9:11
12:16, 15:13 interest [1] - 8:19 Lyde [6] - 2:8, 2:9, 2:8 preparation [1] -
Guevara [11] - 6:2, interrogatories [1] - 7:12, 10:16, 10:23, notice [2] - 13:16, 15:12
6:8, 6:16, 7:3, 7:4, 8:16 12:19 13:19 presented [2] - 5:15,
7:11, 7:15, 7:18, interrogatory [1] - LYDE [20] - 4:14, 4:18, NOTZON [1] - 1:16 5:18
8:21, 10:9, 11:15 12:8 4:21, 5:11, 6:6, 6:23, Notzon [1] - 4:6 presiding [2] - 1:16,
GUEVARA [1] - 1:5 intervention [1] - 7:7, 7:25, 8:4, 9:11, numbered [2] - 1:15, 4:7
Guevara's [1] - 9:2 12:13 9:17, 9:20, 10:24, 15:7 pretty [1] - 11:16
Guevaras [1] - 11:2 involved [2] - 5:23, 11:11, 12:14, 13:6, printed [1] - 15:13
5:25 13:10, 13:14, 13:18, O PROCEEDINGS [2] -
H issue [1] - 8:12 13:22 4:1, 14:8
items [1] - 8:9 objected [1] - 8:12 proceedings [5] -
half [1] - 10:3
M occurred [1] - 15:8 1:14, 3:7, 4:2, 15:6,
HAND [1] - 15:15 OF [4] - 1:1, 1:4, 15:1,
Haynes [1] - 2:9
J ma'am [1] - 9:20 15:2
15:10
Proceedings [2] -
heard [4] - 1:14, 4:11, January [3] - 1:11, Machine [1] - 1:19 Office [1] - 15:25 1:18, 3:6
4:25, 5:6 1:13, 4:7 March [1] - 5:25 OFFICE [1] - 1:25 produced [1] - 1:19
held [1] - 1:16 JANUARY [1] - 3:2 Martinez [2] - 7:23, Official [2] - 15:4, provide [1] - 13:6
hereby [1] - 15:5 John [1] - 2:8 12:23 15:23 providing [1] - 6:7
history [1] - 8:15 Jorge [1] - 2:3 matters [5] - 4:10, OFFICIAL [2] - 1:23, proving [1] - 11:23
hold [1] - 10:1 Judge [5] - 1:16, 4:6, 4:24, 5:5, 8:24, 14:2 15:15 putting [2] - 8:8, 8:11
holidays [1] - 13:17 9:1, 9:11, 11:22 mean [2] - 11:3, 11:11 one [8] - 5:12, 6:4,
honest [1] - 11:16 mediation [5] - 9:18, 6:10, 8:2, 8:23, 9:9,
Honor [16] - 4:15,
judgment [1] - 10:6
9:21, 10:3, 11:8, 9:10
Q
JUDICIAL [1] - 1:8
5:11, 7:2, 7:21, jury [1] - 13:15 11:19 open [1] - 15:8 questions [4] - 10:13,
10:18, 10:24, 11:6, Mendoza [2] - 15:4, Open [1] - 4:3 10:16, 10:18, 10:23
12:14, 12:15, 12:17, 15:22 order [4] - 4:5, 10:3,
12:19, 13:18, 13:19,
K
MENDOZA [1] - 1:23 12:15, 13:2 R
13:22, 13:23, 14:1 Karla [1] - 10:8 might [2] - 11:7, 11:18 Original [1] - 15:13
Honorable [2] - 1:15, KARLA [1] - 1:4 million [1] - 10:14 OSBALDO [1] - 1:3 reason [1] - 7:8
4:6 kind [1] - 8:6 minutes [1] - 4:18 outside [2] - 12:2, recalled [2] - 5:1, 5:7
Hurtado [3] - 4:12, knows [1] - 6:17 misspoke [1] - 13:18 12:5 received [2] - 5:14,
5:2, 5:8 MONICA [1] - 1:16 owed [2] - 7:10, 10:8 8:11
HURTADO [2] - 1:3,
L Monica [1] - 4:6 recently [1] - 7:14
1:4 morning [1] - 4:8 P Record [4] - 1:19,
Hurtados [6] - 6:1, lady [1] - 12:24 motion [3] - 4:14, 15:7, 15:10, 15:12
6:13, 7:6, 7:20, 7:22, Laredo [2] - 1:16, 5:10, 5:20 P.C. [2] - 2:4, 15:13 RECORD [1] - 1:1
9:6 15:24 motivation [1] - 11:24 PAGE [1] - 3:2 recorded [1] - 6:17
Hurtados' [1] - 7:9 LAREDO [1] - 1:24 moved [1] - 13:16 paid [1] - 15:13 reduced [1] - 10:6
husband [6] - 6:11, Law [2] - 2:4, 15:13 MR [30] - 4:14, 4:18, paid/will [1] - 15:13 reflects [1] - 15:10
11:2, 11:15, 12:3, lawsuits [1] - 8:13 4:21, 4:22, 5:11, 6:6, particularly [1] - 11:1 regards [1] - 6:16
12:4, 12:6 lawyer [2] - 7:23, 6:23, 7:1, 7:7, 7:8, parties [3] - 10:4, relevant [1] - 7:18
10:21 7:21, 7:25, 8:4, 8:25, 15:6, 15:11 remember [2] - 6:3,
I lawyers [2] - 5:4, 6:7 9:11, 9:17, 9:20, party [1] - 7:15 9:1
least [4] - 8:9, 9:13, 10:5, 10:12, 10:24, people [5] - 10:7, report [1] - 12:7
importance [1] - 5:20 10:3, 11:19 11:11, 11:21, 12:14, 10:17, 11:18, 13:3, reported [2] - 1:18,
important [2] - 9:1, leeway [1] - 10:21 12:17, 13:6, 13:10, 13:7 15:8
11:21 Leticia [1] - 15:14 13:14, 13:18, 13:22, period [2] - 13:7, Reporter [2] - 15:4,
IN [1] - 1:3 lied [1] - 6:4 14:1 13:11 15:23
3
REPORTER [1] - 1:23 10:25, 11:5 VOLUME [1] - 1:1
REPORTER'S [1] - 1:1 supposed [1] - 11:25 volume [1] - 15:7
Reporter's [5] - 1:19, sworn [2] - 12:7, 12:8 Volume [1] - 15:13
3:8, 15:7, 15:9, VOLUMES [1] - 1:1
15:12 T VS [1] - 1:7
requested [1] - 15:6
respective [1] - 15:11 testified [1] - 6:19 W
responses [5] - 5:13, testimony [2] - 12:8
9:14, 10:25, 11:7, TEXAS [4] - 1:6, 1:23, watch [1] - 10:23
12:9 1:24, 15:1 ways [1] - 12:19
responsible [1] - 7:15 Texas [6] - 1:17, 2:5, WEBB [2] - 1:6, 15:2
results [1] - 7:16 2:10, 15:5, 15:22, Webb [2] - 1:16, 15:4
rise [1] - 4:4 15:24 week [2] - 11:5, 12:12
Rodriguez [1] - 2:9 THE [32] - 1:3, 2:2, weeks [6] - 9:14, 9:23,
ruling [1] - 10:11 2:7, 4:4, 4:8, 4:12, 10:2, 11:6, 12:12,
4:16, 4:19, 4:23, 5:2, 13:13
5:8, 6:3, 6:21, 7:6,
S WHEREUPON [1] -
7:19, 7:24, 8:3, 8:22, 4:2
SBOT [2] - 2:3, 2:8 9:5, 9:16, 9:18, 9:22, whole [1] - 12:20
scene [2] - 6:13, 8:5 10:10, 10:20, 11:9, wit [1] - 4:3
seated [1] - 4:9 12:11, 13:5, 13:9, WITNESS [1] - 15:15
second [1] - 5:14 13:13, 13:20, 13:24, writing [1] - 15:6
see [3] - 8:3, 9:7, 10:2 15:1
See [1] - 15:12 they've [1] - 10:12
sent [1] - 13:16 third [1] - 7:15
separate [2] - 5:24, timeframe [1] - 13:3
6:2 to-wit [1] - 4:3
session [1] - 4:6 together [1] - 6:13
setting [1] - 9:12 tomorrow [1] - 5:18
simple [1] - 7:11 took [1] - 7:3
sit [1] - 11:25 total [1] - 15:12
six [1] - 8:9 transcript [1] - 15:13
sort [2] - 7:12, 7:16 Transcription [1] -
sounds [1] - 8:23 1:20
staff [1] - 12:22 transcription [1] -
standing [1] - 5:4 15:5
start [1] - 9:9 treated [1] - 12:20
Started [1] - 3:6 TRIAL [1] - 1:2
State [1] - 15:5 trial [4] - 9:12, 9:15,
STATE [1] - 15:1 9:16, 13:16
statement [1] - 6:18 true [1] - 15:5
statute [2] - 12:2, 12:5 truly [1] - 15:10
Stenotype [1] - 1:19 two [7] - 5:12, 9:14,
still [3] - 7:17, 11:17, 9:23, 10:2, 11:6,
11:18 12:12, 13:13
STREET [1] - 1:24
Street [1] - 15:24 U
stuff [1] - 8:7
up [1] - 12:15
Style [1] - 3:3
styled [1] - 15:7
sue [1] - 12:6 V
sued [1] - 6:2 versus [3] - 4:12, 5:3,
suggestion [1] - 7:17 5:8
Suite [2] - 1:24, 15:24 VICENTE [1] - 1:23
supplement [3] - 8:11, Vicente [2] - 15:4,
9:8, 12:11 15:22
supplementation [1] - VICTORIA [1] - 1:24
9:24 Victoria [1] - 15:24
supplemented [2] - Vidaurri [1] - 2:9
1
1 REPORTER'S RECORD
VOLUME 4 OF 4 VOLUMES
2 TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
APPEAL NO. 04-17-00070-CV
3
OSBALDO HURTADO AVALOS ) IN THE DISTRICT COURT
4 AND ANTONIO HURTADO AS )
ASSIGNEES OF KARLA FLORES )
5 GUEVARA, )
PLAINTIFFS, )
6 ) WEBB COUNTY, TEXAS
)
7 VS. )
)
8 LOYA INSURANCE COMPANY, )
DEFENDANT. ) 111TH JUDICIAL DISTRICT
9
10
*******************************
11 February 2, 2017
*******************************
12
13 On the 2nd day of February 2017, the
14 following proceedings came on to be heard in the
15 above-entitled and numbered cause before the Honorable
16 MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb
17 County, Texas:
18 Proceedings reported by Computerized
19 Stenotype Machine; Reporter's Record produced by
20 Computer-Assisted Transcription.
21
22
23 VICENTE MENDOZA, TEXAS CSR #6918
OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24 1110 VICTORIA STREET, Suite 301
LAREDO, TEXAS 78040
25 OFFICE (956) 523-4229 FAX (956) 523-5088
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFFS:
3 SBOT NO. 24038023
Jorge A. Green
4 The Green Law Firm, P.C.
34 S. Coria
5 Brownsville, Texas 78520
(956) 542-7000 PHONE
6 (956) 542-7026 FAX
7 FOR THE DEFENDANT:
8 SBOT NO. 12712700
John R. Lyde
9 Vidaurri, Lyde, Rodriguez & Haynes, LLP
202 N. 10th Avenue
10 Edinburg, Texas 78541
(956) 381-6602 PHONE
11 (956) 381-0725 FAX
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 FEBRUARY 2, 2017 PAGE
3 Style of the Case ------------------- 1
4 Appearances ------------------------- 2
5 Chronological Index ----------------- 3
6 Proceedings Started ----------------- 4
7 Proceedings Concluded --------------- 27
8 Court Reporter's Certificate -------- 28
9
*-*-*-*-*-*-*
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 PROCEEDINGS
2 WHEREUPON the following proceedings
3 were had in Open Court, before Court, to-wit:
4 THE BAILIFF: All rise. Please come
5 to order. The 111th District Court is now in
6 session. The Honorable Judge Monica Notzon
7 presiding. (February 2, 2017 - Time: 9:04 a.m.)
8 THE COURT: Good morning. You may be
9 seated.
10 (Whereupon other matters on the
11 Court's docket were heard before the
12 Court)
13 THE COURT: Avalos and Hurtado versus
14 Loya Insurance company, Cause Number 2016-CVT-001431.
15 MR. LYDE: Good morning, Your Honor.
16 THE COURT: How much time do you need
17 on your motion?
18 MR. LYDE: I would anticipate that we
19 can do it within 30 minutes, maybe 20; but, I would
20 say 30 just to be safe.
21 THE COURT: All right. Let me just go
22 through my docket, and I'll get back with you all.
23 MR. LYDE: Yes, ma'am.
24 MR. GREEN: Thank you, Your Honor.
25 (Whereupon other matters were heard
5
1 before the Court)
2 (Case recalled)
3 THE COURT: Avalos and Hurtado versus
4 Loya Insurance company, Cause Number 2016-CVT-001431.
5 MR. LYDE: Good morning, Your Honor.
6 MR. GREEN: Good morning, Your Honor.
7 THE COURT: Let me see if I can get
8 copies of everything that was set. All right. I'm
9 looking at a motion for continuance. What else is
10 set?
11 MR. LYDE: Our motion for summary
12 judgment; and, in that regard, we've also filed
13 objections to some of opposing counsel's summary
14 judgment evidence and the pre-trial.
15 THE COURT: All right. Let's take up
16 the motion for summary judgment; and, depending on
17 how I rule, then we'll take up the continuance.
18 MR. LYDE: Now, first of all I'd like
19 to take up the objections if it's okay with the
20 Court?
21 THE COURT: Yes. Go ahead.
22 MR. LYDE: The first objection that
23 we'd like to make is to a deposition of one of the
24 Plaintiffs that was filed in the underlying
25 proceeding, a completely different proceeding.
6
1 We got it yesterday at 5:02. Okay?
2 So, the first reason that we are objecting to it is
3 because it was not timely filed. That's number one.
4 The second reason that we're objecting to it is
5 because it doesn't fall within any of the exceptions
6 to the hearsay rule.
7 It's being offered on their behalf.
8 It's not being offered against a party opponent.
9 It's not any kind of admission against interest; and,
10 under Rule 206, the underlying proceeding did not
11 involve the same parties. Loya was not part of that
12 particular lawsuit.
13 So, that depo is a complete hearsay
14 document. Of course the way that they could have
15 gotten around it is that they could have filed an
16 affidavit from the client. They decided not to do
17 that. They waited until yesterday after 5:00 o'clock
18 and sent us this depo that was taken, of their own
19 client, in the underlying suit; and, we would object
20 to that, Judge.
21 THE COURT: All right. Response
22 Counsel?
23 MR. GREEN: Your Honor, the rule, it
24 doesn't require that all of the evidence be filed
25 within the seven days.
7
1 It just requires that a response be
2 filed seven days prior to the hearing. We filed our
3 response on time and, we filed supplemental responses
4 as we received Mr. Lyde's objections to our evidence.
5 The deposition testimony that I filed,
6 Your Honor, goes directly to what Mr. Lyde claims is
7 the issue in this case; which are, who was driving
8 the car at the time of the incident that certainly
9 made the basis of the underlying suit.
10 I've brought for the Court a copy of
11 what I've filed, which is my client's testimony in
12 that case, which was taken under oath, that it was
13 not a man that was driving but a woman, which
14 contradicts the position taken by Loya in this case,
15 Your Honor.
16 THE COURT: Typically -- I mean, there
17 isn't anything to keep you from filing the deposition
18 as part of something in support of your response to
19 the motion for summary judgment; but, I will sustain
20 the objection.
21 MR. LYDE: Thank you, Your Honor. Our
22 other two objections are to documents that they filed
23 in their initial response. One is the police report.
24 It wasn't attempted to be of the underlying case. It
25 wasn't attempted to be proven up in any way.
8
1 It's not a certified copy. It's not
2 proven up as a business record. It's simply a
3 hearsay document. So, we would object to that one.
4 THE COURT: All right.
5 MR. LYDE: The second thing is that
6 they are attempting to use the discovery responses of
7 Mrs. Guevara in the underlying case. And, we'd point
8 out several things to the Court about that. Number
9 one, she's not a party to this case, except to the
10 extent that she assigned them her rights, which means
11 actually that she's the active Plaintiff in this
12 case.
13 And so, you can't use your own
14 discovery responses as evidence in the case. I can
15 use them. They can't. And, on top of that, they
16 weren't verified in any way, shape, or form. They
17 were not signed off by Ms. Guevara in any way, shape,
18 or form. And, on top of that, even the copies that
19 they provided weren't copies out of a lawsuit or
20 anything like that. It has not been proven up in any
21 way. It's simply documents that they've attached
22 with no prove-up as is required for summary judgment
23 evidence.
24 THE COURT: All right. Counsel?
25 MR. GREEN: Your Honor, it's an
9
1 interrogatory that asks, again, the fundamental
2 question: Who was driving the car at the time of the
3 collision? And her answer at that time was: I was
4 driving.
5 THE COURT: Why don't you just get her
6 to fill out an affidavit in support of the responses?
7 MR. GREEN: Because as Mr. Lyde
8 pointed out, she's no longer a party to this case.
9 So, we've made efforts to get ahold of her since the
10 time that she gave her deposition to Mr. Lyde, but
11 those efforts have not been successful.
12 So, her only involvement in this case,
13 which is what we were talking about the last time,
14 now that Mr. Lyde -- she's not a party to the case.
15 But, the entire confusion that we were having the
16 last time, whether there was the effort being made to
17 subject my clients to discovery about -- the
18 discussion being who is the proper party to the case.
19 So, here we've got her interrogatory
20 responses that go to what Mr. Lyde -- frankly, Judge,
21 this is not relevant, and I'm going to show you in
22 the motion for summary judgment why it's not
23 relevant; but, Mr. Lyde wants the Court to accept
24 that the fact question as to who was driving the car
25 has been resolved in his favor.
10
1 The position that we are taking is
2 that there is abundant evidence that there is a
3 genuine issue of material fact as it relates to that
4 issue.
5 THE COURT: The objections are
6 sustained, Counsel.
7 MR. LYDE: Thank you, Your Honor. As
8 far as the actual motion for summary judgment, the
9 underlying facts, as indicated by our motion for
10 summary judgment, are as follows:
11 This case concerns an automobile
12 accident that originally occurred back in March 2013.
13 The Hurtado's were in one car --
14 THE COURT: I remember. This is the
15 case where the drivers agreed to state that her
16 husband wasn't driving but that it was her that was
17 driving, that he was not a covered party or insured.
18 Something like that.
19 MR. LYDE: Basically, what happened
20 is -- and, again, this is proven by both the recorded
21 statement and the depo and the depo excerpts that we
22 have.
23 MR. GREEN: And that's what Loya wants
24 the Court to believe, Judge. And, I'm going to show
25 the Court later on in my responses, it doesn't matter
11
1 what the Court believes in that regards.
2 MR. LYDE: All right. Then, if it
3 doesn't matter, let me tell the Court exactly what
4 she testified to when we took her deposition back in
5 September or October. Okay? She said, yes. I
6 originally claimed that. The reason was my husband
7 was in the car driving when it happened. He's an
8 excluded driver. He got out. He talked to Hurtados.
9 He explained that he was an excluded driver. There
10 was no insurance. I showed up at the scene. We all
11 got together --
12 THE COURT: Well, she wasn't even in
13 the car?
14 MR. LYDE: She wasn't even in the car.
15 And, by the way, she said: I was up in the
16 apartment -- and the apartment is less than a block
17 away -- with my ex-mother-in-law and her sister. We
18 talked to them and they verified this. Okay?
19 You know, the Plaintiffs can contend
20 all they want to, but this is what she testified to
21 and this is the testimony that we gave the Court
22 before this MSJ. Anyway, they come up with this
23 agreement that we're going to claim that Mrs. Guevara
24 was driving so that there will be insurance coverage.
25 In fact, that's what they tell the
12
1 police officer. Okay? The suit doesn't settle. A
2 lawsuit is filed against Ms. Guevara. Her depo is
3 getting ready to be taken. I mean, it's my
4 understanding they were in the room getting ready to
5 give it. She tells her attorney. Hey, there's
6 something you need to know.
7 So, they step outside. She says, you
8 need to know that I wasn't really the one driving,
9 and we said that so that we have insurance. Okay?
10 She's not subsequently deposed. The attorney refuses
11 to tender her. What happens is Loya --
12 THE COURT: Is there an offer made? I
13 mean, so the original accident -- were the injuries
14 extreme that it didn't settle?
15 MR. LYDE: Well, I don't think so;
16 but, there is a summary judgment rendered in that
17 case, and I'll get to that.
18 THE COURT: Okay.
19 MR. GREEN: And that's what happened
20 is that her lawyer came and said --
21 MR. LYDE: I'm giving this
22 presentation. I'd like to --
23 (Simultaneous talking, inaudible
24 responses heard)
25 MR. LYDE: I'm giving this
13
1 presentation.
2 MR. GREEN: And that is what happened
3 is that her lawyer came back and said. So, she tells
4 this to her lawyer who is employed by Fred Loya,
5 right?
6 THE COURT: Okay.
7 MR. GREEN: And he goes back to Fred
8 Loya and rats his client out for committing insurance
9 fraud to his employer, Fred Loya. That's what
10 happened.
11 THE COURT: All right. You may
12 continue.
13 MR. LYDE: Okay. Anyway, Loya sends
14 out an adjuster to Mrs. Guevara, and they take a
15 recorded statement, which has been produced to
16 opposing counsel, and it was used during her
17 deposition also, in which she freely admits that she
18 and her husband and the Hurtados did this,
19 essentially everything that I've just told the Court.
20 Loya, subsequently, has her defense
21 withdrawn and withdraws coverage. Both. Okay? Mr.
22 Green then takes a summary judgment. This is after
23 the withdrawal, summary judgment against Ms. Guevara,
24 I think it's for $200,000 a piece against his client;
25 and, he convinces Ms. Guevara to assign any cause of
14
1 action that she has against Loya for her right for
2 defense to them in exchange for this $400,000
3 judgment.
4 So, they're basically bringing suit on
5 behalf of Ms. Guevara because the allegation is being
6 made, hey, Loya breached its duty to provide a
7 defense and breached its duty to provide coverage for
8 this accident. That's basically the lawsuit that
9 we're here about, not the underlying suit where they
10 took an MSJ.
11 THE COURT: You really want to take
12 this to trial?
13 MR. GREEN: Absolutely.
14 MR. LYDE: Okay. So, we have filed --
15 MR. GREEN: I am going to be entitled
16 for summary judgment, and I'm going to show this to
17 the Court.
18 THE COURT: Not from what I'm hearing,
19 but I'll hear you out.
20 MR. LYDE: And so, we have included
21 Ms. Guevara as a responsible third party. In
22 addition, we've filed a counterclaim against the
23 Hurtados based collusion and everything else, a dec.
24 (declaratory) action based upon fraud, breach of the
25 contract, all of that kind of things.
15
1 Today we have a two-prong MSJ. We
2 have traditional MSJ on our dec. action that there
3 was no breach of any duty for defense or for coverage
4 as they are claiming; and, that's based upon the
5 deposition of Ms. Guevara.
6 We also have a no evidence MSJ as to
7 their cause of action being brought against Loya.
8 So, it's two-prong, traditional based upon dec.
9 action and no evidence based upon their claims
10 against us.
11 THE COURT: Give me copies of all of
12 the motions.
13 THE CLERK: Yes, Your Honor.
14 THE COURT: All right.
15 MR. LYDE: Basically, opposing
16 counsel, in their response, they brought up three
17 issues. The first one deals with the traditional
18 motion for summary judgment based on the dec. action.
19 The second one deals solely with the no evidence
20 summary judgment based upon the claims that they are
21 making against us; and, the third one deals with
22 both. The argument that they are making against the
23 traditional motion for summary judgment as to the
24 dec. action is that not enough time has passed for
25 discovery. Okay?
16
1 They're making that solely against
2 that particular cause of action. This case is set for
3 trial on the 21st. The docket control order was
4 entered in August of last year. It was signed off by
5 all parties to my knowledge. Okay? And I think it
6 constituted a Rule 11.
7 THE COURT: Okay.
8 MR. LYDE: And I'll represent to the
9 Court that we are the ones that have been pushing
10 discovery in the case. Okay? We're the ones that
11 took the depo of Ms. Guevara, and I really hoped that
12 after this depo was taken that this case would go
13 away. It did not. But that's okay.
14 Now, with regards to that argument
15 that there has not been enough time, I do not think
16 it's fair for them to say we haven't had a chance to
17 do all of the discovery, when there haven't even been
18 requests for production, interrogatories, or requests
19 for admissions about it.
20 I don't think it's fair for them to
21 make that argument that we haven't had a chance when
22 those things haven't happened. So, that's our
23 response with regards to the there hasn't been enough
24 time.
25 THE COURT: Let me see the docket
17
1 sheet.
2 MR. LYDE: As to the traditional
3 summary judgment based upon the dec. action, what
4 they are essentially attempting to argue is that Loya
5 has somehow waived their right to file a dec. action
6 based upon no coverage and no right to defend.
7 We -- again, I think that that
8 argument, Your Honor, has no basis; and, that's not
9 only upon the case law, but also Section 37 of the
10 Texas Civil Practice & Remedies Code, which
11 specifically sets out when dec. actions can be filed.
12 An insurance policy is a contract, and
13 under 37.004, it plainly says, a contract may be
14 construed either before or after there has been a
15 breach.
16 So, by Section 37 alone we're entitled
17 to file a dec. action; and, in addition in that
18 regard, we would cite the Court to the Texas Supreme
19 Court case of Bonham State Bank versus Beadle which
20 is found at 907 S.W.2d 465. It has some great
21 language that I'll be happy to read to the Court
22 about when a dec. action is appropriate, talking
23 about whether there's a justiciable controversy,
24 which there is in this case, obviously; a genuine
25 conflict of tangible interest, which there obviously
18
1 is.
2 I mean, this is exactly what we have
3 here. So, I think that the argument that, well, the
4 dec. action has somehow been waived, that is not a
5 good argument either.
6 The argument that they are making as
7 to both the traditional MSJ and the no evidence MSJ,
8 it has to do with the right to defend; and, I really
9 think it might be better, as far as the presentation
10 to the Court, if they give their argument on that and
11 then I respond, because I do have some things that
12 I'd like to say about that.
13 MR. GREEN: I think that's a good
14 idea, Judge.
15 THE COURT: All right. Counsel?
16 MR. GREEN: For the Court to grant
17 their summary judgment, you're going to have to rule
18 on the affirmative on four different issues, Judge.
19 The first are -- the first issue is: Are the facts
20 resolved in favor of Fred Loya? And we've talked
21 about that at length, and I'll address it more
22 specifically here in a second. The second is: If
23 the facts are resolved, did Fred Loya owe their
24 insured at the time the duty to defend her.
25 So, we're going to go through the case
19
1 law. At that point you'd have to answer in the
2 affirmative to grant their summary judgment that they
3 owed no duty. I mean, you are also going to have to
4 decide whether there is a justiciable --
5 THE COURT: I mean, why would they owe
6 a duty?
7 MR. GREEN: Why would they owe duty?
8 THE COURT: Right. Why would they owe
9 a duty to defend an excluded driver?
10 MR. GREEN: She wasn't an excluded
11 driver, Your Honor. Why do you believe that?
12 THE COURT: Well, isn't that her sworn
13 testimony?
14 MR. LYDE: It is, Your Honor.
15 MR. GREEN: There is sworn testimony
16 to the contrary.
17 THE COURT: Where is that?
18 MR. GREEN: Res judicata.
19 THE COURT: Counsel, where? I other
20 words, did you respond to their motion for summary
21 judgment and give me some sort of controverting
22 evidence to the fact that she was driving? Because
23 he has evidence that she wasn't driving. He has her
24 sworn testimony in a deposition.
25 Apparently, he has evidence that she
20
1 was with her in-laws a block away. So, I have
2 evidence that she wasn't driving. Their motion for
3 summary judgment on your claim looks valid to me,
4 unless you give me something else.
5 MR. GREEN: Okay. It's irrelevant as
6 to who was driving the car. I'm going to explain
7 this to you.
8 THE COURT: All right.
9 MR. GREEN: I recognize that you
10 believe that she was not the driver of the car, even
11 though there is sworn evidence to the contrary.
12 THE COURT: I'm asking you to show me
13 where is the sworn testimony or the evidence that she
14 was driving?
15 MR. GREEN: I handed it to you a
16 second ago in my client's deposition that was taken
17 in the underlying --
18 THE COURT: All right, but I've
19 sustained the objections because that's not part of
20 the summary judgment evidence.
21 MR. GREEN: Right. So, it had been my
22 position that there was a genuine issue of material
23 fact with regards to who was driving the car. Except
24 there isn't because who was driving the car was the
25 subject of an earlier lawsuit. Okay?
21
1 Res judicata, Judge, is the concept,
2 the doctrine which creates the situation by which
3 courts cannot try facts twice. Okay? There are two
4 parts of res judicata. One is collateral estoppel;
5 and, the second is issue preclusion. Collateral
6 estoppel is: You can't go try the same case in a
7 different court a second time, which is why we have
8 friendly suits.
9 Your Honor, you see these friendly
10 suits, I'm sure, every single day where they parade
11 the parents and the children in front of the Court to
12 ask them: Are you sure? Are you not hurt?
13 THE COURT: But what does that have to
14 do with this case?
15 MR. GREEN: Because that's the
16 protection that is provided to an insurance company
17 because they can't bring a separate lawsuit.
18 THE COURT: But you're asking me to
19 find that Loya Insurance had a duty to defend an
20 excluded driver?
21 MR. GREEN: That's the law, Judge.
22 THE COURT: How is that the law?
23 MR. GREEN: So, res judicata makes it
24 such that this issue: Who was driving the car? That
25 cannot be tried again.
22
1 It was tried once. It cannot be tried
2 again. The issue of who was driving the car and
3 whether or not she was negligent was tried in Osvaldo
4 Hurtado Avalos versus Karla Lizette Guevara.
5 That issue, Judge, has been decided
6 and issued preclusion. Res judicata prevents the
7 Court from taking this issue up again. It would be
8 like if the minor in the friendly suit shows up when
9 they turn 18 to file a suit against the insurance
10 company. The insurance company would come into court
11 and say, this issue --
12 THE COURT: Counsel, the evidence that
13 I have and that I've been hearing, the entire time,
14 has been that the Hurtados and these other people,
15 the Guevaras, that they lied in order to get
16 insurance coverage. That is the evidence. That is
17 clear before the Court. That is clear before the
18 Court. That is clear.
19 MR. GREEN: I respectfully disagree,
20 Judge; but, even if it is a clear, there is a
21 doctrine in the State of Texas called the eight
22 corners rule. Okay? The eight corners rule stands
23 for the proposition that an insurance company, in
24 determining whether or not there is coverage and
25 whether or not there's a duty to defend, it looks at
23
1 two documents and only two documents; the pleadings
2 and the insurance policy.
3 Insurance companies are supposed to
4 compare those two documents; and, if there is a
5 covered claim within that document, insurance
6 companies are to provide coverage. I've got the
7 Supreme Court case of Guideone Elite Insurance
8 Company, which stands for the proposition that there
9 is no exception to the eight corners doctrine.
10 There is no argument. What is
11 undisputed in this case is that in the underlying
12 case our petition stated that Karla Flores, the
13 insured, was the driver and was negligent in causing
14 the wreck.
15 THE COURT: All right.
16 MR. GREEN: Okay? And that there was
17 a denial of coverage, even though her insurance
18 policy made her a covered person.
19 There is a case, Your Honor, it's
20 Corinth Investors Holdings versus Evanston Insurance
21 Company that says, when an insurance company is
22 analyzing whether or not there is a duty to defend,
23 all doubts regarding the duty to defend are resolved
24 in favor of the insured, and the pleadings are
25 construed liberally.
24
1 So, any doubts are construed in favor
2 of the insured. And, here is what is important,
3 Judge, okay, because he's saying there was no duty to
4 defend because there's fraud. Okay? This court,
5 okay, when interpreting the eight corners doctrine,
6 it says, under no circumstances may a court consider
7 extrinsic evidence that contradicts the pleadings.
8 That means, the pleadings and the
9 insurance policy are the two documents, those eight
10 corners, that dictate whether or not there is
11 insurance coverage. It is undisputable that she was
12 a covered person and that had she been the driver of
13 the car --
14 THE COURT: But she was not the
15 driver, Counsel. You're asking me to help you
16 perpetuate a fraud. That's what you're asking this
17 Court to do. What I don't understand is that the
18 undisputed facts in this case showed that the
19 Hurtados and Guevaras lied about Ms. Guevara being
20 the driver in the car.
21 She admits, under oath, I was not the
22 driver of the car. I wasn't even in the car. I came
23 up with this plot, with the Hurtados, so that I could
24 get insurance coverage.
25 So, you are basically asking this
25
1 Court to ignore every rule of justice and help your
2 client's perpetuate a fraud.
3 MR. GREEN: I'm asking you to right a
4 wrong. Insurance companies have a duty. It it were
5 true that she was not driving --
6 THE COURT: Counsel, the only people
7 that are doing something wrong in this case are the
8 Hurtados and the Guevaras that came up with this
9 scheme.
10 MR. GREEN: I respectfully disagree.
11 Your Honor, I respectfully disagree. I have a client
12 to represent. My client has sworn to the exact
13 opposite.
14 THE COURT: Show me where your client
15 swore to the exact opposite, because I've just read
16 Mrs. Guevara's deposition taken in September where
17 she says, under oath, I lied. I was not driving.
18 Show me where? Because in response to the summary
19 judgment that was filed by Loya Insurance, I don't
20 see any.
21 MR. GREEN: Let me ask you this: Had
22 she not been driving, if the facts were exactly --
23 THE COURT: She was not driving.
24 MR. GREEN: But let's assume for
25 purposes of this hearing, and although I disagree
26
1 with --
2 THE COURT: Give me evidence that she
3 was driving.
4 MR. GREEN: I have my client's sworn
5 testimony to the contrary.
6 THE COURT: There is no evidence that
7 you've given to me in response to the summary
8 judgment.
9 MR. GREEN: I'm assuming, for purposes
10 of this hearing, that she wasn't driving. Okay?
11 Let's say I, in representing Osvaldo Hurtado Avalos,
12 sued her, okay, and there was no evidence that she
13 was driving; but, I sued her anyway. Would Fred Loya
14 have to answer that lawsuit?
15 THE COURT: All right, Counsel, I've
16 heard enough. Anything else from you?
17 MR. LYDE: No, Your Honor.
18 THE COURT: All right. I'll take
19 everything under advisement and I'll give you my
20 ruling by tomorrow.
21 MR. LYDE: Okay. We have the -- very
22 good, Your Honor. Thank you. May I be excused?
23 THE COURT: I'll do it by tomorrow
24 morning.
25 MR. LYDE: Thank you, Your Honor.
27
1 MR. GREEN: Do you want to take up the
2 motion for continuance in light of the fact that you
3 may not grant the summary judgment?
4 THE COURT: Counsel, I mean, as far as
5 your continuance goes, that's denied. This case has
6 been on file since May. You've had plenty of time to
7 conduct discovery. This case apparently goes even
8 further back because of that other pre-existing case.
9 So, continuance is denied. It stays on for trial,
10 assuming I don't dispose of it.
11 MR. LYDE: Thank you, Your Honor.
12 THE COURT: All right. Thank you,
13 Counsel.
14 (Whereupon other matters were heard
15 before the Court)
16
17 *-*-*-*-*-*-*-*-*-*
18 PROCEEDINGS CONCLUDED
19 *-*-*-*-*-*-*-*-*-*
20
21
22
23
24
25
28
1 THE STATE OF TEXAS )
2 COUNTY OF WEBB )
3
4 I, Vicente Mendoza, Official Court
Reporter for the 111th District Court, Webb County,
5 State of Texas, do hereby certify that the above and
foregoing contains a true and correct transcription
6 of all portions of evidence and other proceedings
requested in writing by counsel for the parties to be
7 included in this volume of the Reporter's Record, in
the above-styled and numbered cause, all of which
8 occurred in open court or in chambers and were
reported by me.
9
I further certify that the Reporter's
10 Record of the proceedings truly and correctly
reflects the exhibits, if any, admitted by the
11 respective parties.
12 I further certify that the total cost
for the preparation of this Reporter's Record is $See
13 Original printed transcript, Volume 1 and was
paid/will be paid by The Green Law Firm, P.C. by
14 Leticia Garza.
15 WITNESS MY OFFICIAL HAND this the 9th
day of February, 2017.
16
17
18
19
20
21
22 _________________________________
Vicente Mendoza, Texas CSR #6918
23 Expiration Date: 12/31/2018
Official Court Reporter - 111th District Court
24 1110 Victoria Street, Suite 301
Laredo, Texas 78040
25 Office (956) 523-4229 Fax (956)523-5088
1
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correctly [1] - 28:10 driver [11] - 11:8, 11:9, exception [1] - 23:9 24:4, 24:16, 25:2
cost [1] - 28:12 Date [1] - 28:23 19:9, 19:11, 20:10, exceptions [1] - 6:5 Fred [6] - 13:4, 13:7,
Counsel [8] - 6:22, days [2] - 6:25, 7:2 21:20, 23:13, 24:12, excerpts [1] - 10:21 13:9, 18:20, 18:23,
10:6, 19:19, 24:15, deals [3] - 15:17, 24:15, 24:20, 24:22 exchange [1] - 14:2 26:13
25:6, 26:15, 27:4, 15:19, 15:21 drivers [1] - 10:15 excluded [5] - 11:8, freely [1] - 13:17
27:13 dec. [11] - 14:23, driving [26] - 7:7, 7:13, 11:9, 19:9, 19:10, friendly [3] - 21:8,
counsel [6] - 8:24, 15:2, 15:8, 15:18, 9:2, 9:4, 9:24, 10:16, 21:20 21:9, 22:8
13:16, 15:16, 18:15, 15:24, 17:3, 17:5, 10:17, 11:7, 11:24, excused [1] - 26:22 front [1] - 21:11
22:12, 28:6 17:11, 17:17, 17:22, 12:8, 19:22, 19:23, exhibits [1] - 28:10 fundamental [1] - 9:1
counsel's [1] - 5:13 18:4 20:2, 20:6, 20:14, existing [1] - 27:8
decide [1] - 19:4 20:23, 20:24, 21:24,
counterclaim [1] -
decided [2] - 6:16, 22:2, 25:5, 25:17,
Expiration [1] - 28:23 G
14:22 explain [1] - 20:6
COUNTY [2] - 1:6, 22:5 25:22, 25:23, 26:3, explained [1] - 11:9 Garza [1] - 28:14
28:2 declaratory [1] - 14:24 26:10, 26:13 extent [1] - 8:10 genuine [3] - 10:3,
County [2] - 1:17, 28:4 defend [9] - 17:6, during [1] - 13:16 extreme [1] - 12:14 17:24, 20:22
course [1] - 6:14 18:8, 18:24, 19:9, duty [14] - 14:6, 14:7, extrinsic [1] - 24:7 given [1] - 26:7
Court [35] - 3:5, 4:3, 21:19, 22:25, 23:22, 15:3, 18:24, 19:3, grant [3] - 18:16, 19:2,
23:23, 24:4 19:6, 19:7, 19:9,
4:5, 4:12, 5:1, 5:20,
DEFENDANT [2] - 1:8, 21:19, 22:25, 23:22,
F 27:3
7:10, 8:8, 9:23, great [1] - 17:20
10:24, 10:25, 11:1, 2:7 23:23, 24:3, 25:4 fact [6] - 9:24, 10:3, GREEN [33] - 4:24,
11:3, 11:21, 13:19, defense [4] - 13:20, 11:25, 19:22, 20:23, 5:6, 6:23, 8:25, 9:7,
14:17, 16:9, 17:18, 14:2, 14:7, 15:3 E 27:2 10:23, 12:19, 13:2,
17:19, 17:21, 18:10, denial [1] - 23:17 facts [6] - 10:9, 18:19, 13:7, 14:13, 14:15,
18:16, 21:11, 22:7, denied [2] - 27:5, 27:9 Edinburg [1] - 2:10 18:23, 21:3, 24:18, 18:13, 18:16, 19:7,
22:17, 22:18, 23:7, depo [7] - 6:13, 6:18, effort [1] - 9:16 25:22 19:10, 19:15, 19:18,
24:17, 25:1, 27:15, 10:21, 12:2, 16:11, efforts [2] - 9:9, 9:11 fair [2] - 16:16, 16:20 20:5, 20:9, 20:15,
28:4, 28:4, 28:23 16:12 eight [5] - 22:21, fall [1] - 6:5 20:21, 21:15, 21:21,
COURT [55] - 1:2, 1:3, deposed [1] - 12:10 22:22, 23:9, 24:5, far [3] - 10:8, 18:9, 21:23, 22:19, 23:16,
1:23, 4:8, 4:13, 4:16, deposition [10] - 5:23, 24:9 27:4 25:3, 25:10, 25:21,
4:21, 5:3, 5:7, 5:15, 7:5, 7:17, 9:10, 11:4, either [2] - 17:14, 18:5 favor [4] - 9:25, 18:20, 25:24, 26:4, 26:9,
5:21, 6:21, 7:16, 8:4, 13:17, 15:5, 19:24, Elite [1] - 23:7 23:24, 24:1 27:1
8:24, 9:5, 10:5, 20:16, 25:16 employed [1] - 13:4 FAX [3] - 1:25, 2:6, Green [4] - 2:3, 2:4,
10:14, 11:12, 12:12, determining [1] - employer [1] - 13:9 2:11 13:22, 28:13
12:18, 13:6, 13:11, 22:24 entered [1] - 16:4 Fax [1] - 28:25 Guevara [13] - 8:7,
14:11, 14:18, 15:11, dictate [1] - 24:10 entire [2] - 9:15, 22:13 February [4] - 1:11, 8:17, 11:23, 12:2,
15:14, 16:7, 16:25, different [3] - 5:25, entitled [3] - 1:15, 1:13, 4:7, 28:15 13:14, 13:23, 13:25,
18:15, 19:5, 19:8, 18:18, 21:7 14:15, 17:16 FEBRUARY [1] - 3:2 14:5, 14:21, 15:5,
19:12, 19:17, 19:19, directly [1] - 7:6 essentially [2] - 13:19, file [4] - 17:5, 17:17, 16:11, 22:4, 24:19
20:8, 20:12, 20:18, disagree [4] - 22:19, 17:4 22:9, 27:6 GUEVARA [1] - 1:5
21:13, 21:18, 21:22, 25:10, 25:11, 25:25 estoppel [2] - 21:4, filed [16] - 5:12, 5:24, Guevara's [1] - 25:16
22:12, 23:15, 24:14, discovery [7] - 8:6, 21:6 6:3, 6:15, 6:24, 7:2, Guevaras [3] - 22:15,
25:6, 25:14, 25:23, 8:14, 9:17, 15:25, Evanston [1] - 23:20 7:3, 7:5, 7:11, 7:22, 24:19, 25:8
26:2, 26:6, 26:15, 16:10, 16:17, 27:7 evidence [24] - 5:14, 12:2, 14:14, 14:22, Guideone [1] - 23:7
26:18, 26:23, 27:4, discussion [1] - 9:18 6:24, 7:4, 8:14, 8:23, 17:11, 25:19
27:12 dispose [1] - 27:10 10:2, 15:6, 15:9, filing [1] - 7:17
court [5] - 21:7, 22:10, DISTRICT [3] - 1:3, 15:19, 18:7, 19:22, fill [1] - 9:6
3
22:10, 22:16, 22:23, keep [1] - 7:17 material [2] - 10:3, Notzon [1] - 4:6
H
23:2, 23:3, 23:5, kind [2] - 6:9, 14:25 20:22 NOTZON [1] - 1:16
HAND [1] - 28:15 23:17, 23:21, 24:9, knowledge [1] - 16:5 matter [2] - 10:25, number [2] - 6:3, 8:8
handed [1] - 20:15 24:11, 24:24, 25:4 11:3 Number [2] - 4:14, 5:4
happy [1] - 17:21 INSURANCE [1] - 1:8 L matters [3] - 4:10, numbered [2] - 1:15,
Haynes [1] - 2:9 Insurance [6] - 4:14, 4:25, 27:14 28:7
hear [1] - 14:19 5:4, 21:19, 23:7, language [1] - 17:21 mean [7] - 7:16, 12:3,
heard [6] - 1:14, 4:11, 23:20, 25:19 LAREDO [1] - 1:24 12:13, 18:2, 19:3, O
4:25, 12:24, 26:16, insured [5] - 10:17, Laredo [2] - 1:16, 19:5, 27:4
27:14 18:24, 23:13, 23:24, 28:24 means [2] - 8:10, 24:8 o'clock [1] - 6:17
hearing [5] - 7:2, 24:2 last [3] - 9:13, 9:16, Mendoza [2] - 28:4, oath [3] - 7:12, 24:21,
14:18, 22:13, 25:25, interest [2] - 6:9, 16:4 28:22 25:17
26:10 17:25 law [5] - 11:17, 17:9, MENDOZA [1] - 1:23 object [2] - 6:19, 8:3
hearsay [3] - 6:6, interpreting [1] - 24:5 19:1, 21:21, 21:22 might [1] - 18:9 objecting [2] - 6:2, 6:4
6:13, 8:3 interrogatories [1] - Law [2] - 2:4, 28:13 minor [1] - 22:8 objection [2] - 5:22,
held [1] - 1:16 16:18 laws [1] - 20:1 minutes [1] - 4:19 7:20
help [2] - 24:15, 25:1 interrogatory [2] - 9:1, lawsuit [7] - 6:12, MONICA [1] - 1:16 objections [6] - 5:13,
hereby [1] - 28:5 9:19 8:19, 12:2, 14:8, Monica [1] - 4:6 5:19, 7:4, 7:22, 10:5,
Holdings [1] - 23:20 Investors [1] - 23:20 20:25, 21:17, 26:14 morning [5] - 4:8, 20:19
Honor [21] - 4:15, involve [1] - 6:11 lawyer [3] - 12:20, 4:15, 5:5, 5:6, 26:24 obviously [2] - 17:24,
4:24, 5:5, 5:6, 6:23, involvement [1] - 9:12 13:3, 13:4 mother [1] - 11:17 17:25
7:6, 7:15, 7:21, 8:25, irrelevant [1] - 20:5 length [1] - 18:21 motion [13] - 4:17, 5:9, occurred [2] - 10:12,
10:7, 15:13, 17:8, issue [11] - 7:7, 10:3, less [1] - 11:16 5:11, 5:16, 7:19, 28:8
19:11, 19:14, 21:9, 10:4, 18:19, 20:22, Leticia [1] - 28:14 9:22, 10:8, 10:9, October [1] - 11:5
23:19, 25:11, 26:17, 21:5, 21:24, 22:2, liberally [1] - 23:25 15:18, 15:23, 19:20, OF [4] - 1:1, 1:4, 28:1,
26:22, 26:25, 27:11 22:5, 22:7, 22:11 lied [3] - 22:15, 24:19, 20:2, 27:2 28:2
Honorable [2] - 1:15, issued [1] - 22:6 25:17 motions [1] - 15:12 offer [1] - 12:12
4:6 issues [2] - 15:17, light [1] - 27:2 MR [60] - 4:15, 4:18, offered [2] - 6:7, 6:8
hoped [1] - 16:11 18:18 Lizette [1] - 22:4 4:23, 4:24, 5:5, 5:6, OFFICE [1] - 1:25
hurt [1] - 21:12 LLP [1] - 2:9 5:11, 5:18, 5:22, Office [1] - 28:25
Hurtado [4] - 4:13, J looking [1] - 5:9 6:23, 7:21, 8:5, 8:25, officer [1] - 12:1
5:3, 22:4, 26:11 looks [2] - 20:3, 22:25 9:7, 10:7, 10:19, Official [2] - 28:4,
HURTADO [2] - 1:3, John [1] - 2:8 LOYA [1] - 1:8 10:23, 11:2, 11:14, 28:23
1:4 Jorge [1] - 2:3 Loya [20] - 4:14, 5:4, 12:15, 12:19, 12:21, OFFICIAL [2] - 1:23,
Hurtado's [1] - 10:13 Judge [12] - 1:16, 4:6, 6:11, 7:14, 10:23, 12:25, 13:2, 13:7, 28:15
Hurtados [7] - 11:8, 6:20, 9:20, 10:24, 12:11, 13:4, 13:8, 13:13, 14:13, 14:14, once [1] - 22:1
13:18, 14:23, 22:14, 18:14, 18:18, 21:1, 13:9, 13:13, 13:20, 14:15, 14:20, 15:15, one [11] - 5:23, 6:3,
24:19, 24:23, 25:8 21:21, 22:5, 22:20, 14:1, 14:6, 15:7, 16:8, 17:2, 18:13, 7:23, 8:3, 8:9, 10:13,
husband [3] - 10:16, 24:3 17:4, 18:20, 18:23, 18:16, 19:7, 19:10, 12:8, 15:17, 15:19,
11:6, 13:18 judgment [25] - 5:12, 21:19, 25:19, 26:13 19:14, 19:15, 19:18, 15:21, 21:4
5:14, 5:16, 7:19, Lyde [8] - 2:8, 2:9, 7:6, 20:5, 20:9, 20:15, ones [2] - 16:9, 16:10
8:22, 9:22, 10:8, 20:21, 21:15, 21:21,
I 10:10, 12:16, 13:22,
9:7, 9:10, 9:14, 9:20, open [1] - 28:8
9:23 21:23, 22:19, 23:16, Open [1] - 4:3
idea [1] - 18:14 13:23, 14:3, 14:16, LYDE [27] - 4:15, 4:18, 25:3, 25:10, 25:21, opponent [1] - 6:8
ignore [1] - 25:1 15:18, 15:20, 15:23, 4:23, 5:5, 5:11, 5:18, 25:24, 26:4, 26:9, opposing [3] - 5:13,
important [1] - 24:2 17:3, 18:17, 19:2, 5:22, 7:21, 8:5, 10:7, 26:17, 26:21, 26:25, 13:16, 15:15
IN [1] - 1:3 19:21, 20:3, 20:20, 10:19, 11:2, 11:14, 27:1, 27:11 opposite [2] - 25:13,
in-laws [1] - 20:1 25:19, 26:8, 27:3 12:15, 12:21, 12:25, MSJ [7] - 11:22, 14:10, 25:15
inaudible [1] - 12:23 judicata [5] - 19:18, 13:13, 14:14, 14:20, 15:1, 15:2, 15:6, order [3] - 4:5, 16:3,
incident [1] - 7:8 21:1, 21:4, 21:23, 15:15, 16:8, 17:2, 18:7 22:15
included [2] - 14:20, 22:6 19:14, 26:17, 26:21, MY [1] - 28:15 original [1] - 12:13
28:7 JUDICIAL [1] - 1:8 26:25, 27:11 Original [1] - 28:13
INDEX [1] - 3:1 justice [1] - 25:1 7:4 N originally [2] - 10:12,
Index [1] - 3:4 justiciable [2] - 17:23, 11:6
19:4 need [3] - 4:16, 12:6,
indicated [1] - 10:9 M 12:8
OSBALDO [1] - 1:3
initial [1] - 7:23 Osvaldo [2] - 22:3,
injuries [1] - 12:13 K ma'am [1] - 4:23 negligent [2] - 22:3,
26:11
Machine [1] - 1:19 23:13
insurance [19] - 11:10, outside [1] - 12:7
KARLA [1] - 1:4 man [1] - 7:13 NO [4] - 1:2, 1:2, 2:3,
11:24, 12:9, 13:8, owe [4] - 18:23, 19:5,
Karla [2] - 22:4, 23:12 March [1] - 10:12 2:8
17:12, 21:16, 22:9, 19:7, 19:8
4
owed [1] - 19:3 4:7 Remedies [1] - 17:10 21:5, 21:7 12:1, 14:4, 14:9,
own [2] - 6:18, 8:13 prevents [1] - 22:6 remember [1] - 10:14 Section [2] - 17:9, 22:8, 22:9
printed [1] - 28:13 rendered [1] - 12:16 17:16 Suite [2] - 1:24, 28:24
P proceeding [3] - 5:25, report [1] - 7:23 see [4] - 5:7, 16:25, suits [2] - 21:8, 21:10
6:10 reported [2] - 1:18, 21:9, 25:20 summary [24] - 5:11,
P.C. [2] - 2:4, 28:13 proceedings [5] - 28:8 See [1] - 28:12 5:13, 5:16, 7:19,
PAGE [1] - 3:2 1:14, 3:5, 4:2, 28:6, REPORTER [1] - 1:23 sends [1] - 13:13 8:22, 9:22, 10:8,
paid [1] - 28:13 28:10 Reporter [2] - 28:4, sent [1] - 6:18 10:10, 12:16, 13:22,
paid/will [1] - 28:13 PROCEEDINGS [2] - 28:23 separate [1] - 21:17 13:23, 14:16, 15:18,
parade [1] - 21:10 4:1, 27:18 REPORTER'S [1] - 1:1 September [2] - 11:5, 15:20, 15:23, 17:3,
parents [1] - 21:11 Proceedings [2] - Reporter's [5] - 1:19, 25:16 18:17, 19:2, 19:20,
part [3] - 6:11, 7:18, 1:18, 3:4 3:5, 28:7, 28:9, session [1] - 4:6 20:3, 20:20, 25:18,
20:19 produced [2] - 1:19, 28:12 set [3] - 5:8, 5:10, 16:2 26:7, 27:3
particular [2] - 6:12, 13:15 represent [2] - 16:8, sets [1] - 17:11 supplemental [1] - 7:3
16:2 production [1] - 16:18 25:12 settle [2] - 12:1, 12:14 support [2] - 7:18, 9:6
parties [4] - 6:11, prong [2] - 15:1, 15:8 representing [1] - seven [2] - 6:25, 7:2 supposed [1] - 23:3
16:5, 28:6, 28:11 proper [1] - 9:18 26:11 several [1] - 8:8 Supreme [2] - 17:18,
parts [1] - 21:4 proposition [2] - requested [1] - 28:6 shape [2] - 8:16, 8:17 23:7
party [7] - 6:8, 8:9, 22:23, 23:8 requests [2] - 16:18 sheet [1] - 17:1 sustain [1] - 7:19
9:8, 9:14, 9:18, protection [1] - 21:16 require [1] - 6:24 show [6] - 9:21, 10:24, sustained [2] - 10:6,
10:17, 14:21 prove [1] - 8:22 required [1] - 8:22 14:16, 20:12, 25:14, 20:19
passed [1] - 15:24 prove-up [1] - 8:22 requires [1] - 7:1 25:18 swore [1] - 25:15
people [2] - 22:14, proven [4] - 7:25, 8:2, res [5] - 19:18, 21:1, showed [2] - 11:10, sworn [7] - 19:12,
25:6 8:20, 10:20 21:4, 21:23, 22:6 24:18 19:15, 19:24, 20:11,
perpetuate [2] - 24:16, provide [3] - 14:6, resolved [4] - 9:25, shows [1] - 22:8 20:13, 25:12, 26:4
25:2 14:7, 23:6 18:20, 18:23, 23:23 signed [2] - 8:17, 16:4
person [2] - 23:18, provided [2] - 8:19, respectfully [3] - simply [2] - 8:2, 8:21 T
24:12 21:16 22:19, 25:10, 25:11 Simultaneous [1] -
petition [1] - 23:12 purposes [2] - 25:25, respective [1] - 28:11 12:23 tangible [1] - 17:25
PHONE [2] - 2:5, 2:10 26:9 respond [2] - 18:11, single [1] - 21:10 tender [1] - 12:11
piece [1] - 13:24 pushing [1] - 16:9 19:20 sister [1] - 11:17 testified [2] - 11:4,
plainly [1] - 17:13 response [9] - 6:21, situation [1] - 21:2 11:20
testimony [8] - 7:5,
Plaintiff [1] - 8:11 R 7:1, 7:3, 7:18, 7:23, solely [2] - 15:19, 16:1
PLAINTIFFS [2] - 1:5, 15:16, 16:23, 25:18, 7:11, 11:21, 19:13,
sort [1] - 19:21
2:2 rats [1] - 13:8 26:7 19:15, 19:24, 20:13,
specifically [2] -
Plaintiffs [2] - 5:24, read [2] - 17:21, 25:15 responses [7] - 7:3, 26:5
17:11, 18:22
11:19 ready [2] - 12:3, 12:4 8:6, 8:14, 9:6, 9:20, TEXAS [4] - 1:6, 1:23,
stands [2] - 22:22,
pleadings [4] - 23:1, really [4] - 12:8, 14:11, 10:25, 12:24 1:24, 28:1
23:8
23:24, 24:7, 24:8 16:11, 18:8 responsible [1] - Texas [9] - 1:17, 2:5,
Started [1] - 3:4
plenty [1] - 27:6 reason [3] - 6:2, 6:4, 14:21 2:10, 17:10, 17:18,
state [1] - 10:15
plot [1] - 24:23 11:6 rights [1] - 8:10 22:21, 28:5, 28:22,
STATE [1] - 28:1
point [2] - 8:7, 19:1 recalled [1] - 5:2 rise [1] - 4:4 28:24
State [3] - 17:19,
pointed [1] - 9:8 received [1] - 7:4 Rodriguez [1] - 2:9 THE [57] - 1:3, 2:2,
22:21, 28:5
police [2] - 7:23, 12:1 recognize [1] - 20:9 room [1] - 12:4 2:7, 4:4, 4:8, 4:13,
statement [2] - 10:21,
policy [4] - 17:12, RECORD [1] - 1:1 4:16, 4:21, 5:3, 5:7,
Rule [2] - 6:10, 16:6 13:15
23:2, 23:18, 24:9 record [1] - 8:2 5:15, 5:21, 6:21,
rule [7] - 5:17, 6:6, stays [1] - 27:9
Record [4] - 1:19, 7:16, 8:4, 8:24, 9:5,
portions [1] - 28:6 6:23, 18:17, 22:22, Stenotype [1] - 1:19
28:7, 28:10, 28:12 10:5, 10:14, 11:12,
position [3] - 7:14, 25:1 step [1] - 12:7
recorded [2] - 10:20, 12:12, 12:18, 13:6,
10:1, 20:22 ruling [1] - 26:20 STREET [1] - 1:24
13:15 13:11, 14:11, 14:18,
Practice [1] - 17:10 Street [1] - 28:24 15:11, 15:13, 15:14,
pre [2] - 5:14, 27:8 reflects [1] - 28:10 S Style [1] - 3:3 16:7, 16:25, 18:15,
pre-existing [1] - 27:8 refuses [1] - 12:10 styled [1] - 28:7 19:5, 19:8, 19:12,
pre-trial [1] - 5:14 regard [2] - 5:12, S.W.2d [1] - 17:20 subject [2] - 9:17, 19:17, 19:19, 20:8,
preclusion [2] - 21:5, 17:18 safe [1] - 4:20 20:25 20:12, 20:18, 21:13,
22:6 regarding [1] - 23:23 SBOT [2] - 2:3, 2:8 subsequently [2] - 21:18, 21:22, 22:12,
preparation [1] - regards [4] - 11:1, scene [1] - 11:10 12:10, 13:20 23:15, 24:14, 25:6,
28:12 16:14, 16:23, 20:23 scheme [1] - 25:9 successful [1] - 9:11 25:14, 25:23, 26:2,
presentation [3] - relates [1] - 10:3 seated [1] - 4:9 sued [2] - 26:12, 26:13 26:6, 26:15, 26:18,
12:22, 13:1, 18:9 relevant [2] - 9:21, second [8] - 6:4, 8:5, suit [7] - 6:19, 7:9, 26:23, 27:4, 27:12,
presiding [2] - 1:16, 9:23 15:19, 18:22, 20:16,
5
28:1
V
they've [1] - 8:21
third [2] - 14:21, 15:21 valid [1] - 20:3
three [1] - 15:16 verified [2] - 8:16,
timely [1] - 6:3 11:18
to-wit [1] - 4:3 versus [5] - 4:13, 5:3,
today [1] - 15:1 17:19, 22:4, 23:20
together [1] - 11:11 VICENTE [1] - 1:23
tomorrow [2] - 26:20, Vicente [2] - 28:4,
26:23 28:22
took [3] - 11:4, 14:10, VICTORIA [1] - 1:24
16:11 Victoria [1] - 28:24
top [2] - 8:15, 8:18 Vidaurri [1] - 2:9
total [1] - 28:12 volume [1] - 28:7
traditional [6] - 15:2, VOLUME [1] - 1:1
15:8, 15:17, 15:23, Volume [1] - 28:13
17:2, 18:7 VOLUMES [1] - 1:1
transcript [1] - 28:13 VS [1] - 1:7
Transcription [1] -
1:20 W
transcription [1] -
28:5 waited [1] - 6:17
TRIAL [1] - 1:2 waived [2] - 17:5, 18:4
trial [4] - 5:14, 14:12, wants [2] - 9:23, 10:23
16:3, 27:9 WEBB [2] - 1:6, 28:2
tried [4] - 21:25, 22:1, Webb [2] - 1:16, 28:4
22:3 WHEREUPON [1] -
true [2] - 25:5, 28:5 4:2
truly [1] - 28:10 wit [1] - 4:3
try [2] - 21:3, 21:6 withdrawal [1] - 13:23
turn [1] - 22:9 withdrawn [1] - 13:21
twice [1] - 21:3 withdraws [1] - 13:21
two [8] - 7:22, 15:1, WITNESS [1] - 28:15
15:8, 21:3, 23:1, woman [1] - 7:13
23:4, 24:9 words [1] - 19:20
two-prong [2] - 15:1, wreck [1] - 23:14
15:8 writing [1] - 28:6
typically [1] - 7:16
Y
U
year [1] - 16:4
under [7] - 6:10, 7:12, yesterday [2] - 6:1,
17:13, 24:6, 24:21, 6:17
25:17, 26:19
underlying [10] - 5:24,
6:10, 6:19, 7:9, 7:24,
8:7, 10:9, 14:9,
20:17, 23:11
undisputable [1] -
24:11
undisputed [2] -
23:11, 24:18
unless [1] - 20:4
up [16] - 5:15, 5:17,
5:19, 7:25, 8:2, 8:20,
8:22, 11:10, 11:15,
11:22, 15:16, 22:7,
22:8, 24:23, 25:8,
27:1
TAB 3
Filed
10/30/2014 1:36:42 PM
Esther Degollado
District Clerk
Webb District
2014CVT002421D1
CAUSE NO. _________________________
OSBALDO HURTADO AVALOS § IN THE DISTRICT COURT
AND ANTONIO HURTADO §
§
§
VS. § _____ JUDICIAL DISTRICT
§
§
KARLA LIZETTE FLORES GUEVARA § WEBB COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Osbaldo Hurtado Avalos and Antonio Hurtado hereinafter referred
to as Plaintiffs, complaining of and about Karla Lizette Flores Guevara, hereinafter referred
to as Defendant, and will show unto the Court the following:
A. Discovery Control Plan
1. Plaintiffs intend to conduct discovery under Level 2 of the Texas Rule of Civil
Procedure 190.
B. Parties and Service
2. Plaintiffs Osbaldo Hurtado Avalos and Antonio Hurtado are individuals residing
in Laredo, Webb County, Texas.
3. Defendant, Karla Lizette Flores Guevara, an individual, may be served with process
1717 Cedar, Laredo, Texas 78040. Service of said defendant as described above can be
effected by civil process server.
C. Venue
4. Venue is proper in Webb County, Texas because all or a substantial part of the
events or omissions serving as the basis of this litigation occurred in Webb County, Texas.
D. Facts
5. On or about March 18, 2013, Plaintiffs suffered injuries when the vehicle they were
driving was struck by the vehicle operated by Karla Lizette Flores Guevara.
E. Count One - Negligence
7. At or immediately preceding the time of the subject collision, Karla Lizette Flores
Guevara was operating her vehicle negligently. Karla Lizette Flores Guevara had a duty
to exercise ordinary care and operate her vehicle reasonably and prudently. Karla Lizette
Flores Guevara breached that duty in one or more of the following ways:
a. Failing to make a proper turn;
b. Failing to maintain a proper lookout;
c. Failing to timely apply her brakes;
d. Failing to turn her vehicle in order to avoid the collision; and
e. Driver inattention.
8. Karla Lizette Flores Guevara’s negligence proximately caused Plaintiffs’ injuries
and other damages.
F. Damages
9. Plaintiffs seek monetary relief over $100,000, but nor more than $200,000.
G. Conditions Precedent
10. All conditions precedent have been performed or have occurred.
H. Request for Disclosure
11. Under Texas Rule of Civil Procedure 194, Plaintiffs request defendant disclose
within 50 days of the service of this request, the information or material described in Rule
Page -2-
194.2 (a) through (l).
I. PRAYER
12. WHEREFORE PREMISES CONSIDERED, Plaintiffs Osbaldo Hurtado Avalos and
Antonio Hurtado respectfully pray that defendant be cited to appear and answer herein,
and that Plaintiffs have judgment against defendant for the following:
a. Physical pain in the past and future;
b. Mental anguish in the past and future;
c. Physical impairment in the past and future;
d. Medical expenses in the past and future;
e. Lost earning capacity in the past and future;;
g. Costs of suit;
h. Pre-judgment and post-judgment interest; and
i. All other relief, in law and in equity, to which Plaintiff may be
entitled.
Respectfully submitted,
THE GREEN LAW FIRM P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile : (956) 542-7026
BY: /S/
JORGE A. GREEN
State Bar No. 24038023
ATTORNEY FOR PLAINTIFFS
Page -3-
PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO DEFENDANT
Interrogatory #1:
Describe how the collision occurred, including: (1) what you contend caused or contributed
to the collision, (2) how it happened, (3) the road and weather conditions, and (4) the traffic
conditions.
Answer:
Interrogatory #2:
Please state the purpose of your trip at the time of the collision, including where you had
been, where you were going, and the time at which you were supposed to arrive at your
destination.
Answer:
Interrogatory #3:
Who was driving the car at the time of the collision?
Answer:
Interrogatory #4:
Have you ever been sued or filed a lawsuit before? If so, please state (1) what the suit was
about, (2) the county and state in which it was filed, (3) the style of the case, and (4) the
disposition of the case, if resolved.
Answer:
Interrogatory #5:
Describe any previous car wrecks in which you have been involved. For each, please state
(1) where the wreck happened, (2) who you believe was at fault, (3) whether a lawsuit was
filed and (4) where you sought medical treatment for any injuries you sustained.
Answer:
Interrogatory #6:
Were you using a cell phone in any matter, including making or receiving a call, writing
or reading a text message, or writing or reading an email, at the time of the collision?
Answer:
Page -4-
Interrogatory #7:
If you have been convicted of a felony or crime of moral turpitude in the last ten years,
state the charge, the date and place of arrest, and county of conviction.
Answer:
Interrogatory #8:
Do you disagree with anything in the investigating officer’s police report, including the
additional narrative? If so, please state with what parts you disagree, why you disagree
with them and why you did not change ask to amend the report.
Answer:
Interrogatory #9:
At what speed do you believe the vehicles involved were traveling immediately prior to
the collision made the basis of this lawsuit?
Answer:
Interrogatory #10:
Describe in detail any and all conversations you had immediately following the collision
until the time you left the scene. In your answer, please include: (1) with whom you spoke,
(2) what the conversation was about, and (3) for about how long you spoke with each
person.
Answer:
Interrogatory #11:
Do you intend to argue Plaintiff’s injuries were not caused by the wreck? If so, state the
basis for your belief, including facts supporting such contention.
Answer:
Interrogatory #12:
Describe the severity of the impact between the vehicles and the resulting visible damage
to the vehicles.
Answer:
Interrogatory #13:
When did you first become aware of Plaintiffs’ vehicle. Please state in both time (seconds
or minutes) and distance (in feet).
Page -5-
Answer:
FIRST SET OF REQUESTS FOR PRODUCTION TO DEFENDANT
Request #1:
All photographs by Defendant or Defendant’s agent that relate to Plaintiffs’ cause of action,
including photographs of Plaintiffs, the vehicles involved in the collision, including
Plaintiffs’ and Defendant’s vehicles, and/or the scene of the collision.
Response:
Request #2:
A copy of any property damage estimates, of both Plaintiff, Defendant, or any other vehicle
involved, in Defendant’s or Defendant’s agent’s possession.
Response:
Request #3:
All oral, taped or recorded statements made by any witnesses, including Plaintiff and
Defendant, to the subject collision which are in the possession, constructive possession,
custody or control of the defendant, Defendant’s attorney or anyone acting on Defendant’s
behalf.
Response:
Request #4:
Please produce all documents that Defendant has, including all deposition testimony and
trial transcripts, from any other lawsuits regarding personal injury in which Defendant,
either in your personal capacity or on behalf of a minor or incompetent plaintiff, has been
involved.
Response:
Request #5:
If and/or when an expert is retained by Defendant, please produce a copy of the expert’s
file, including: (1) all correspondence, including fee arrangements, between the expert and
Defendant and/or Defendant’s agents, including Defendant’s attorney, (2) all materials and
documents reviewed by the expert in preparing his or her report, (3) any slide-show,
power point presentation, or other demonstrative evidence the expert will use at trial, and
Page -6-
(4) a list of all the cases in which the expert has testified in the last 4 years.
Response:
Request #6:
Please provide a copy of any and all statutes, regulations, ordinances, or written rules or
customs that Defendant intends to introduce at trial.
Response:
Request #7:
Please provide copies of any and all communications between Defendant’s attorney and
Defendant’s insurance carrier.
Response:
Request #8:
Please execute the attached authorization for the release of Defendant’s cellular phone
records.
Response:
Request #9:
Please provide a copy of your driver’s license in effect at the time of the collision.
Response:
Request #10:
Please provide copies of any and all medical records for treatment you have received
following previous car wrecks.
Response:
Request #11:
Please provide a copy of all documents related to previous lawsuits in which you have
been involved; specifically, please include (1) any and all petitions or complaints, (2)
deposition transcripts of your testimony, and (3) your discovery responses.
Response:
Page -7-
Plaintiffs’ Requests for Admissions to Defendant
1. Admit you are familiar with the area in which the subject collision occurred.
Response:
2. Admit that you believe Plaintiffs could not have done anything differently to avoid
the collision.
Response:
3. Admit that you have previously received treatment from a chiropractor.
Response:
4. Admit that you have previously had an MRI performed on yourself.
Response:
5. Admit you have suffered pain because of a car wreck in which you were previously
involved.
Response:
6. Admit that you caused the car wreck that is made the basis of this lawsuit.
Response:
7. Admit that you know of no other witnesses to the car crash.
Response:
8. Admit that an immediate family member (spouse, siblings, parents, and children)
has been injured in a car wreck before.
Response:
Page -8-
9. Admit that you should always wait until traffic is clear when turning left on an
unprotected (without an arrow) green light.
Response:
Page -9-
VERIFICATION
THE STATE OF TEXAS §
§
COUNTY OF ____________________ §
BEFORE ME, the undersigned authority, a notary public, on this day personally appeared
KARLA LIZETTE FLORES GUEVARA who being by me duly sworn on his oath, deposed
and said that she is duly qualified and authorized in all respects to make this Affidavit; that
she has read the above and foregoing answers to interrogatories; and every statement
contained in the answers is within her knowledge, and is true and correct.
____________________________________
KARLA LIZETTE FLORES GUEVARA
SUBSCRIBED AND SWORN TO BEFORE ME by the said KARLA LIZETTE
FLORES GUEVARA, on this the ______ day of ________________________, 2014, to certify
which witness my hand and official seal.
____________________________________
Notary Public, State of Texas
____________________________
Printed/typed name of Notary
My Commission Expires:
______________________
Page -10-
AUTHORIZATION FOR WIRELESS COMMUNICATION DEVICE RECORDS
TO:_________________________________ (Service Provider)
__________________________________ (Address of Service Provider)
__________________________________
RE: KARLA LIZETTE FLORES GUEVARA
ACCOUNT NO._____________________
TELEPHONE NO.____________________ (if different from account number)
TIME PERIOD OF RECORDS REQUESTED: March 18, 2013 - April 18, 2013
This is to authorize and direct the above named company who has issued, sold,
rented, or leased any form of cellular, pager or other wireless communication device(s)
and/or provided services to me, KARLA LIZETTE FLORES GUEVARA to furnish the
law firm of The Green Law Firm, P.C., or any of its representatives, any and all billing and
usage records related to the above account during the period indicated. Such records
include, but are not limited to: detailed billing information, detailed call logs and/or calls
placed and received (and the time of day or night and durations of the same), or any other
information pertaining to the usage of my account during the time period referenced
above. I hereby waive any privilege I have to said information.
Signed the _________ day of _________________________, 2014.
______________________________________
KARLA LIZETTE FLORES GUEVARA
Records should be provided to:
THE GREEN LAW FIRM, P.C.
c/o Jorge A. Green, Esq.
34 S. Coria Street
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile : (956) 542-7026
Page -11-
Filed
CIVIL CASE INFORMATION SHEET 10/30/2014 1:36:42 PM
Esther Degollado
CAUSE NUMBER (FOR CLERK USE ONLY): _______________________________ COURT (FOR CLERK USE ONLY): ______________________ District Clerk
Webb District
STYLED OSBALDO HURTADO AVALOS & ANTONIO HURTADO VS. KARLA LIZETTE FLORES GUEVARA 2014CVT002421D1
(e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter of the Estate of George Jackson)
A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental
health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial.
1. Contact information for person completing case information sheet: Names of parties in case: Person or entity completing sheet is:
Name: Email: Plaintiff(s)/Petitioner(s):
X Attorney for Plaintiff/Petitioner
Pro Se Plaintiff/Petitioner
Jorge Green Jorge@thegreenlawfirmpc.com Title IV-D Agency
Osbaldo Hurtado Avalos & Antonio Other:
Address: Telephone: Hurtado
34 S. Coria St. 956-542-7000
Additional Parties in Child Support Case:
City/State/Zip: Fax: Defendant(s)/Respondent(s):
Custodial Parent:
Brownsville, Texas 78520 956-542-7026
Karla Lizette Flores Guevara
Non-Custodial Parent:
Signature: State Bar No:
24038023
Jorge Green Presumed Father:
_____________________________
[Attach additional page as necessary to list all parties]
2. Indicate case type, or identify the most important issue in the case (select only 1):
Civil Family Law
Post-judgment Actions
Contract Injury or Damage Real Property Marriage Relationship (non-Title IV-D)
Debt/Contract Assault/Battery Eminent Domain/ Annulment Enforcement
Consumer/DTPA Construction Condemnation Declare Marriage Void Modification—Custody
Debt/Contract Defamation Partition Divorce Modification—Other
Fraud/Misrepresentation Malpractice Quiet Title With Children Title IV-D
Other Debt/Contract: Accounting Trespass to Try Title No Children Enforcement/Modification
Legal Other Property: Paternity
Foreclosure Medical Reciprocals (UIFSA)
Home Equity—Expedited Other Professional Support Order
Other Foreclosure Liability:
Franchise
Insurance
X Motor Vehicle Accident
Premises
Related to Criminal
Matters Other Family Law Parent-Child Relationship
Landlord/Tenant Product Liability Expunction Enforce Foreign Adoption/Adoption with
Non-Competition Asbestos/Silica Judgment Nisi Judgment Termination
Partnership Other Product Liability Non-Disclosure Habeas Corpus Child Protection
Other Contract: List Product: Seizure/Forfeiture Name Change Child Support
Writ of Habeas Corpus— Protective Order Custody or Visitation
Other Injury or Damage: Pre-indictment Removal of Disabilities Gestational Parenting
Other: of Minority Grandparent Access
Other: Paternity/Parentage
Employment Other Civil Termination of Parental
Discrimination Administrative Appeal Lawyer Discipline Rights
Retaliation Antitrust/Unfair Perpetuate Testimony Other Parent-Child:
Termination Competition Securities/Stock
Workers’ Compensation Code Violations Tortious Interference
Other Employment: Foreign Judgment Other:
Intellectual Property
Tax Probate & Mental Health
Tax Appraisal Probate/Wills/Intestate Administration Guardianship—Adult
Tax Delinquency Dependent Administration Guardianship—Minor
Other Tax Independent Administration Mental Health
Other Estate Proceedings Other:
3. Indicate procedure or remedy, if applicable (may select more than 1):
Appeal from Municipal or Justice Court Declaratory Judgment Prejudgment Remedy
Arbitration-related Garnishment Protective Order
Attachment Interpleader Receiver
Bill of Review License Sequestration
Certiorari Mandamus Temporary Restraining Order/Injunction
Class Action Post-judgment Turnover
TAB 4
TAB 5
TAB 6
TAB 7
From: Jorge Green
To: Paola Lucio
Subject: FW: Hurtado v. Fred Loya
Date: Thursday, February 02, 2017 1:14:53 PM
We need to save this to the file
From: Jorge Green
Sent: Thursday, August 25, 2016 5:06 PM
To: 'rlyde@vlrhlaw.com'
Subject: Hurtado v. Fred Loya
Hello Rick.  Your office answered the disclosures on this case like a standard auto case.  Please
supplement the disclosures to include the persons at Fred Loya with knowledge of facts relevant to
the denial of coverage.  I’d like to the depositions of Judy Liberto and Francisco Martinez.  Please
give me some dates and advise whether Judy Liberto is still and employee of Fred Loya.
Jorge Green
Board Certified-Personal Injury Trial Law
Texas Board of Legal Specialization
The Green Law Firm, P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone: (956) 542-7000
Facsimile: (956) 542-7026
www.thegreenlawfirmpc.com
TAB 8
From: Paola Lucio
To: "Rick Lyde"
Cc: "mperez@vlrhlaw.com"
Subject: 13-023 Osbaldo Hurtado Avalos & Antonio Hurtado As Assignees of Karla Flores vs. Loya Insurance Company
Date: Tuesday, January 31, 2017 9:40:21 AM
Attachments: image001.png
image002.png
image003.png
Mr. Lyde
Good Morning, as per your correspondence please be advised that our clients will be available for
Depositions on Thursday February 2 at 11am.
Mr. Osbaldo Hurtado will require an interpreter.
Please send out the notices.
Also please be advised that Mr. Green requested for your Disclosures to be amended and include a
complete copy of the policy.
Please let me know if you have any questions
Thanks and have a great day.
Respectfully,
Paola Lucio
The Green Law Firm PC
34 S. Coria St
Brownsville, TX 78520
T: (956) 542-7000
F: (956)542-7026
plucio@thegreenlawfirmpc.com
CONFIDENTIALITY STATEMENT:  This message, as well as  any attached document, contains
information that is confidential and or privileged.  This  information is only  intended  for  the use
of  the addressee named above.  If you are not  the intended recipient, you are  hereby notified
that any disclosure, copying, distribution  or  taking any action in reliance of the contents of this
message or  it's attachment is strictly prohibited, and may  be unlawful. If you have received this
in error, please delete.
Go GREEN.  Don't print this e-mail unless it is absolutely necessary.
TAB 9
TAB 10
TAB 11
TAB 12