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Date: 08-02-2013

Case Style: Lyndsey Beck v. Shayne Patrick Herndon

Case Number: CJ-2011-1921

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Jerry Kirksey and Jim D. Loftis

Defendant's Attorney: Brian T. Downing for Douglas Herndon and Shayne Patrick Herndon

Rodney Stewart for Shelter Mutual Insurance Company

Description: Lyndsey Beck and Ashlynn Beck sued Shayne Patrick Herndon, Douglas Herndon and Shelter Mutual Insurance Company on auto negligence theories claiming:

1. On or about December 1, 2010, plaintiff was southbound in an active construction zone on South Pennsylvania near its intersection with Kingswood Drive in Oklahoma City, Cleveland County, Oklahoma, when she slowed and stopped for traffic. Defendant, Shayne Patrick Herndon, was operating a vehicle owned by defendant, Douglas Hemdon, traveling southbound on South Pennsylvania and defendant, Shayne Patiick Hendon, failed to slow or stop and struck the rear of plaintiffs vehicle.

2. The accident was caused by the negligence and negligence per se of defendants as follows:

(a) Defendant, Shayne Patrick Herndon, failed to use reasonable and ordinary care in the operation of his motor vehicle;

(b) Defendant, Shayne Patrick Hemdon, failed to devote fill time and attention to the operation of his motor vehicle in violation of state statutes;

(c) Defendant, Shayne Patrick Hemdon, failed to properly use his braking and steering mechanism to avoid colliding with plaintiffs vehicle;

(d) Defendant, Shayne Patrick Hemdon, failed to operate his motor vehicle at a speed and in a manner to allow him to stop in the assured clear distance ahead in violation of State Statute 47 O.S. §11-801, and

(e) Defendant, Douglas Herndon, negligently entrusted his vehicle to defendant, Shayne Patrick Herndon, when he knew or should have known that such action might result in personal injuries to plaintiff

3. As a result of defendants’ negligence and negligence per se, plaintifl Lyndsey Beck, has and will incur the following injuries and damages:

(a) Pain of mind and body that is pennanent, painflil and progressive;

(b) Medical expenses, past, present and fliture;

(c) Financial loss.

WHEREFORE, plaintifi Lyndsey Beck, Individually, for her First Cause of Action herein, prays judgment against defendants in an amount in excess of $75,000.00, together with costs, interest, attorney’s fees and any and all other relief this Court deems equitable and just.

SECOND CAUSE OF ACTION

Plaintiff; Lyndsey Beck, as Mother of Ashlynn Beck, A Minor, adopts and repleads the allegations of the First Cause of Action herein, and fhrther states:

1. As a result of defendants’ negligence and negligence per se, Ashlynn Beck has and will incur the following injuries and damages:

(a) Pain of mind and body that is permanent, painfiui and progressive;

(b) Medical expenses, past, present and future.

WHEREFORE, plaintifl Lyndsey Beck, as Mother of Ashlynn Beck, A Minor, for her Second Cause of Action herein, prays judgment against defendants in an amount less than $75,000.00, together with costs, interest, attorney’s fees and any and all other relief this Court deems equitable and just.

Shayne Patrick Herndon and Douglas Herndon appeared and answered as follows:

1.

The Defendants admit that an accident occurred on December 1, 2010 at or near the location stated in Paragraph 1 of the First Cause of Action of Plaintiff’s First Amended Petition. The Defendants specifically deny those remaining allegations and claims contained in Paragraph 1 of Plaintiffs’ First Amended Petition.

2.

The Defendants specifically deny those allegations and claims contained in Paragraph 2, including subparagraphs (a) through (e) of the First Cause of Action of Plaintiffs’ First Amended Petition and demand strict proof thereof.

3.

The Defendants specifically deny those allegations and claims contained in Paragraph 3, including subparagraphs (a) through (c) of the First Cause of Action of Plaintiffs’ First Amended Petition and demand strict proof thereof.

SECOND CAUSE OF ACTION

4.

The Defendants specifically deny those allegations and claims contained in Paragraph 1, including subparagraphs (a) through (b) of the Second Cause of Action of Plaintiffs’ First Amended Petition and demand strict proof thereof.

AFFIRMATWE DEFENSES

COME NOW Defendants, SHAYNE PATRICK HERNDON AND DOUGLAS HERNDON, and state the following affirmative defenses to the First Amended Petition filed by Plaintiffs herein:

5.

The First Amended Petition fails to state a claim against Defendants upon which relief can be granted.

6.

The accident was an unavoidable accident, casualty and misfortune that occurred without negligence on the part of the Defendants.

7.

The accident was proximately caused by the negligence of a third party over whom this Defendants had no control, and for those acts this Defendants are not responsible.

8.

Whether the Plaintiffs suffer from any pre-existing or post-arising medical condition will be developed during discovery and Defendants herein reserves all defenses in that regard.

9.

Whether the Plaintiffs have acted to mitigate their damages will be developed during discovery and Defendants herein reserve all defenses in that regard.

10.

Defendants reserve the right to plead additional affirmative defenses as discovery progresses.

WHEREFORE, having fully answered, Defendants pray that Plaintiffs take nothing by way of their First Amended Petition herein and that Defendants be dismissed with costs and attorney fees and any other relief this Court may deem equitable and just.


Shelter Mutual Insurance Company appeared and answered as follows:

1. Upon current information and belief, this Defendant does not dispute that a rear-end accident occurred on the date and at the location alleged in Paragraph 1 of Plaintiffs’ First Amended Petition. This defendant does not dispute that Plaintiff had automobile insurance policy(ies) with this Defendant and that a claim has been presented. This Defendant denies the remainder of the allegations contained in paragraph I of Plaintiffs’ First Amended Petition.

2. This Defendant is without sufficient knowledge of the acts and omissions of the other Defendants to either admit or deny the allegations contained in Paragraph 2 of Plaintiffs’ First Amended Petition.

3. This Defendant acknowledges that Plaintiff has presented a claim for bodily injury sustained in the collision, the extent of which is the subject of investigation and discovery.

4. This Defendant acknowledges that Plaintiff has presented a claim for bodily injury sustained in the collision, the extent of which is the subject of investigation and discovery.

AFFIRMATIVE DEFENSES

1. The uninsured/underinsured motorist coverage under the policy issued by Shelter Mutual Insurance Company is subject to the terms and provisions thereof

2. Thus far, Plaintiff has not provided some of the documents and information requested in the investigation of her claim.

3. Discovery is still ongoing and this Defendant reserves the right to amend this Answer.

CROSS-CLAIM

COMES NOW Defendant, Shelter Mutual Insurance Company, and for its Cross Claim against Defendants, Shayne Patrick Herndon and Douglas Herndon, alleges and states as follows:

1. The automobile accident described in Jiaintiffs’ Petition was caused by the negligence of Defendants, Shayne Patrick Hemdon and Douglas Hemdon.

2. Pursuant to its contract of insurance and Oklahoma law, in the event that Shelter Mutual Insurance Company pays uninsuredlunderinsured motorist benefits to Plaintiffs, then it has a right of subrogation recovery against Defendants, Shayne Patrick Herndon and Douglas Herndon.

WHEREFORE, premises considered, in the event that Defendant, Shelter Mutual Insurance Company pays uninsured!underinsured motorist benefits to Plaintiffs, then it prays forjudgment over and against Defendants, Shayne Patrick Herndon and Douglas Herndon, and for such other and farther relief as the Court deems just and proper.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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