Date: 06-25-2012
Case Style: Glenda Comfort v. Heather McDougal
Case Number: CJ-2011-1641
Judge: Tom A. Lucas
Court: District Court, Cleveland County, Oklahoma
Plaintiff's Attorney: M. Blake Yaffe, S. Alex Yaffe, D. Eliot Yaffe, Fosheee & Yafee, Oklahoma City, Oklahoma
Defendant's Attorney: Wesley G. Smith, Dobbs & Middleton, Oklahoma City, Oklahoma for Heather McDougal
Dan S. Folluo, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Oklahoma for Hanover Specialty Insurance Brokers, Inc.
Description: COMES NOW the Plaintiff, Glenda Comfort, and for her cause of action against the Defendants, Heather MeDougal and Hanover Specialty Insurance Brokers, Inc. (“Hanover”), alleges and states:
FIRST CAUSE OF ACTION: NEGLIGENCE
1. That on or about December 16, 2009 at or near the intersection S. Western Avenue and SW 119th Set Oklahoma City, Cleveland County, State of Oklahoma, Defendant, Heather McDougal, negligently drove a motor vehicle causing a collision with a vehicle operated by Plaintiff, Glenda Comfort.
2. That Defendant, Heather McDougal, wrongifilly, carelessly and negligently rear-ended a vehicle driven by Glenda Comfort.
3. That at all relevant times mentioned herein, Plaintiff; Glenda Comfort, operated her vehicle properly and lawifilly.
4. That as a direct and proximate result of the negligence of the Defendant, Heather McDougal, the Plaintiff, Glenda Comfort, has sustained serious bodily injuries; has sustained aggravation of all pre-existing injuries; has incurred and will incur fliture medical expenses, has incurred and will occur future loss of wages; has suffered tremendous mental pain and suffering and has incurred property damages all in an amount in excess of $75,000.00.
SECOND CAUSE OF ACTION: UNINSURED/UNDERSINSURED COVERAGE
For her second claim, Plaintiff realleges and incorporates by reference the foregoing paragraphs and states:
5. That Defendant, Hanover, at all times herein mentioned maintained a place of business within the State of Oklahoma for the purpose of selling insurance to the public.
6. That the Defendant, Hanover, signed a contract to insure Plaintiff, Glenda Comfort, for uninsured/underinsured motorist protection within the State of Oklahoma and is therefore, under the jurisdiction of this Court.
7. At the time of the accident, Plaintiff was insured under the terms of an automobile insurance, claim number 1438465103, policy number AST 6309615, issued by Defendant, Hanover.
8. That under information and belief, at the time of the occurrence complained of Defendant, Heather McDougai, was an uninsured/underinsured motorist as that term is defined by 36 0.5. §3636.
9. That as a direct result of the negligence of the uninsured/underinsured driver, the Plaintiff’s claim exceeds any underlying liability limits.
10. That under the contractual terms of the uninsured/underinsured motorist coverage contract, Defendant, Hanover, is liable for all of Plaintiff’s damages exceeding the underlying liability limits of the Defendant, Heather McDougal.
11. That as a direct result of the actions of Defendant, Hanover, Plaintiff has been damaged in an amount in excess of $75,000.00.
WHEREFORE, Plaintiff, Glenda Comfort, prays for judgment against the Defendants, Heather McDougal and Hanover Specialty Insurance Brokers, Inc., in an amount in excess of $75,000.00, plus interest set at the statutory level, for costs of this action, and for any such other and further relief that this Court may deem just and proper.
ANSWER
COMES NOW the Defendant, HEATHER MCDOUGAL, and for answer to Plaintiffs Petition, states:
1.
The Defendant admits an automobile accident occurred on or about December 16, 2009, in Cleveland County between the parties as alleged in Paragraph 1 of Plaintiffs Petition. The Defendant is without sufficient information andlor knowledge to admit or deny the remaining allegations contained in Paragraph 1 of Plaintiff’s Petition and demands strict proof thereof.
2.
The Defendant denies as stated the allegations and claims contained in Paragraph 2 of Plaintiff’s Petition.
3.
The Defendant is without sufficient information and!or knowledge to admit or deny the allegations contained in Paragraphs 3, 4, 5. 6, 7, 8, 9, 10, and 11 of Plaintiffs Petition and demands strict proof thereof.
AFFIRMATIVE DEFENSES
COMES NOW Defendant, HEATHER MCDOUGAL, and states the following affirmative defenses to the Petition tiled by Plaintiff herein:
4.
The Petition fails to state a claim against Defendant upon which relief can be granted.
5.
The Plaintiff may have been negligent, and such negligence on the part of Plaintiff proximately may have caused or contributed to the accident and Plaintiff’s damage, if any, and such negligence on the part of the Plaintiff was greater than the negligence of the Defendant and Plaintiff is therefore not entitled to recover.
6.
The Defendant may have been confronted with a sudden emergency not brought about by her own negligence, and in reacting to that emergency, the Defendant acted as a reasonable and prudent person would have acted under such circumstances.
7.
The accident may have been an unavoidable accident, casualty and misfortune that occurred without negligence on the part of the Defendant.
8.
Whether the Plaintiff suffers from any pre-exi sting or post-arising medical condition will be developed during discovery and Defendant herein reserves all defenses in that regard.
9.
Whether the Plaintiff has acted to mitigate her damages will be developed during discovery and Defendant herein reserves all defenses in that regard.
10.
The Defendant reserves the right to add additional affirmatives defenses as discovery continues.
WHEREFORE, having fully answered, Defendant prays that Plaintiff takes nothing by way of her Petition herein and that Defendant be dismissed with costs and attorney fees and any other relief this Court may deem equitable and just.
ANSWER AND CROSS CLAIM OF HANOVER AMERICAN INSURANCE COMPANY (IMPROPERLY NAMED AS HANOVER SPECIALTY INSURANCE BROKERS, INC.)
COMES NOW the Defendant, Hanover American Insurance Company (improperly named as Hanover Specialty Insurance Brokers, Inc., and Answers Plaintiffs Petition in numerical sequence as follows:
1. This Defendant admits that an accident occurred on or about the date alleged, at the location alleged. Defendant is without sufficient information to either admit or deny the balance of the allegations contained in Paragraph No. 1 of the Plaintiffs Petition, therefore they are denicd.
2. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No. 2 of the Plaintiffs’ Petition, therefore they arc denied.
3. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No. 3 of the Plaintiffs’ Petition, therefore they are denicd.
4. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No 4 of the Plaintiffs’ Petition, therefore they are dcnied.
5. This Defendant admits that is sells insurance in the State of Oklahoma. The balance of the allegations contained in Paragraph No. 5 of the Plaintiffs Petition are denied.
6. This Defendant admits that Plaintiff had a policy which provided for uninsuredlunderinsured motorist coverage and thatjurisdiction of this Court is proper and Defendant is without sufficient information to admit or deny the balance of the allegations contained in Paragraph No. 6 of the Plaintiffs Petition, therefore they are denied.
7. The allegations contained in Paragraph No. 7 of the Plaintiffs Petition are admitted.
8. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No. 8 of the Plaintiffs Petition, therefore they are denied.
9. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No, 9 of the Plaintiffs Petition, therefore they are denied.
10. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No. 10 of the Plaintiffs Petition, therefore they are denied.
11. This Defendant is without sufficient information to either admit or deny the allegations contained in Paragraph No. 11 of the Plaintiffs Petition, therefore they are denied.
AFFIRMATIVE DEFENSES
I.
Plaintiffs complaint of injury and damage if any, may be the result of preexisting conditions, natural causes or causes not related to the automobile accident in question.
II.
Defendant adopts and incorporates by reference all affirmative defenses asserted by the CoDefendant, McDougal.
III.
This Defendant reserves the right to amend or modif’ its Answer upon the completion of discovery.
WHEREFORE, premises considered, this Defendant prays that it be dismissed from this cause of action with its costs and attorneys fees expended herein and for any and all other relief as the Court may deem just and proper. CROSS-CLAIM
COMES NOW the Defendant, Hanover American Insurance Company (improperly named as Hanover Specialty Insurance Brokers, Inc.), and for its Cross-Claim against the Co-Defendant, Heather McDougal, alleges and states the following:
1. This Defendant is alleged to have underinsured motorist coverage for the benefit of the Plaintiff.
2. In the event this Defendant becomes contractually obligated to pay underinsured motorist benefits to the Plaintiff, Glenda Comfort, then this Defendant is entitled to statutory and contractual subrogation rights over and against the Co-Defendant Heather McDougal.
3. Plaintiff alleges that McDougal was the tortfeasor in causing the accident in question. In the event liability is adjudicated against McDougal and in the further event that Hanover pays money under its coverage, then Hanover is entitled to be reimbursed for all sums paid under its coverage.
WHEREFORE, Defendant Hanover American Insurance Company (improperly named as Hanover Specialty Insurance Brokers, Inc.), prays for judgment over and against the Co-Defendant McDougal for contractual and statutory subrogation, including reimbursement for interest, costs and attorney’s fees.
Outcome: COMES NOW the Plaintiff, by and through counsel, and dismisses her cause of action against Defendant, Heather McDougal only, with prejudice to further litigation and states that a compromise settlement covering all claims involved in the above captioned cause has been made between the parties. Plaintiff retains her cause of action against Defendant Hanover Specialty Insurance Brokers, Inc.
COMES NOW the P1aintiff Glenda Comfort, by and through her counsel of record and dismisses any and all claims, against Hanover American Insurance Company, improperly named as Hanover Specialty insurance Brokers, Tue., with prejudice to future refiling, all issues of law and fact having been resolved.
Plaintiff's Experts:
Defendant's Experts:
Comments:
