Date: 12-04-2013

Case Style: Jim Hicks v. Shelby Miller

Case Number: CJ-2012-459

Judge: Tom A. Lucas

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Justin T. Hiersche, Lou Keel and Anthony L. Bonner, Jr.

Defendant's Attorney: Wesley G. Smith, R. Greg Andres and Rhonda G. Thomas

Description: Jim Hicks and Jacquiline Hicks sued Shelby Miller and Michael Miller on tort theories claiming:

1. This Court is a proper venue pursuant to 12 OkIa. Stat. § 137.

2. Plaintiffs. Jim Hicks and Jacqueline Hicks, are citizens of Oklahoma and residents of Cleveland County.

3. Based on present knowledge, information and belief Defendants, Shelby Miller and Michael Miller, are individuals and residents of Cleveland County.

FIRST CAUSE OFACTION-NEGLIGIZNCE

4. On December 16, 2011, Jacqueline Hicks was the driver of a vehicle traveling east on Rock Creek road in the city of Norman, Cleveland County, Oklahoma when her vehicle stalled in the center eastbound lane of this four lane street. The Defendant Shelby Miller was the driver of a vehicle also eastbound in the location described above when Miller’s vehicle collided with the rear end of the vehicle occupied and driven by Petitioner Jacqueline Flicks. As a result of the negligence of Shelby Miller, Jacqueline Hicks suffered injuries and harm. The vehicle being driven by Jacqueline Hicks was owned by Plaintiff Jim Hicks. The Plaintiffs vehicle incurred damages from the Defendant Shelby Miller’s negligence in an amount to deem the vehicle a total loss.

5. Said injuries and harm were the direct and proximate result of the carelessness and negligence of Shelby Miller, individually, who had the last clear chance to avoid this wreck. ihe vehicle Defendant Shelby Miller drove is owned by Defendant Michael Miller.

6. The injuries and harm suffered by Jacqueline Hicks are permanent, painflil, progressive, and disabling, and as a result of which she has and will incur medical expenses, and has and will suffer pain of mind and body. She has and will he damaged in an amount in excess of $10,000.

7. The Chevrolet Cavalier owned by Jim Hicks was totally destroyed and it was valued at $6,477.00.

8. Plaintiffs are not seeking an amount in excess of $75,000.

WHEREFORE, Plaintiff prays for judgment in an amount in excess of $10,000, together with interest, attorney’s fees and costs thereon as provided by law.

Defendants Shelby Miller and Michael Miller appeared, answered and counterclaimed as follows:

1.

The Defendants deny each allegation and claim of Plaintiffs’ Petition except as may be specifically admitted herein.

2.

The Defendants admit those allegations and claims contained in Paragraphs 1, 2, 3, and 8 of Plaintiffs’ Petition.

3.

The Defendants admit an automobile accident occurred on December 16, 2011, in Cleveland
County between Jacqueline Hicks and Shelby Miller as alleged in Paragraph 4 of Plaintiffs’ Petition.
The Defendants deny all allegations of negligence in Paragraph 4 of Plaintiffs’ Petition. The
Defendants are without sufficient information and/or knowledge to admit or deny the remaining
allegations contained in Paragraph 4 of Plaintiffs’ Petition and demand strict proof thereof.

4.

The Defendants specifically deny those allegations and claims contained in Paragraph 5 of Plaintiffs’ Petition and demands strict proof thereof except the Defendants admit Michael Miller owned the vehicle driven by Shelby Miller.

5.

The Defendants are without sufficient information and/or knowledge to admit or deny the allegations contained in Paragraphs 6 and 7 of Plaintiffs’ Petition and demand strict proof thereof.

AFFIRMATIVE DEFENSES

COME NOW Defendants, SHELBY MILLER and MICHAEL MILLER, and state the following affirmative defenses to the Petition filed by Plaintiffs herein:

6.

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

7.

The Plaintiff, Jacqueline Hicks, was negligent, and such negligence on the part of Ms. Hicks proximately caused or contributed to the accident and Plaintiffs’ damage, if any, and such negligence on the part of Ms. Hicks was greater than the negligence of the Defendants and Plaintiffs are therefore not entitled to recover.

8.

Defendant Shelby Miller was confronted with a sudden emergency not brought about by her own negligence, and in reacting to that emergency, she acted as a reasonable and prudent person would have acted under such circumstances.

9.

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

10.

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

11.

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.

12.

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

13.

The Plaintiffs assumed the risk of injury resulting from the negligence of the Defendants, if any, by voluntarily and unreasonably exposing themselves to injury with the knowledge and appreciation of the danger and risk involved.

14.

The Defendants reserve the right to add additional affirmative defenses as discovery continues.

COUNTERCLAIM

COMES NOW the Defendant, Shelby Miller, and for her causes of action against the Plaintiff, Jacqueline Hicks, alleges the following:

1. This Court has jurisdiction over the parties and subject matter as the acts complained of herein occurred in Cleveland County, State of Oklahoma.

2. On or about the 16th day of December, 2011, Defendant was driving eastbound in the center lane on Rock Creek Road in Norman, Oklahoma, when Plaintiff pulled her vehicle out in front of Defendant’s vehicle. Plaintiff negligently stopped and parked her vehicle in the center lane immediately in front of Defendant’s vehicle, without the benefit of warning lights or brake lights, in violation of Okia. Stat. tit. 47 § 11-1001. Plaintiff also negligently failed to take any action or make any reasonable effort to remove her vehicle from obstructing the roadway.

3. At the time Plaintiff stopped her vehicle, traffic on Rock Creek Road, both oncoming and adjacent, as well as the limited distance between the two (2) vehicles, made it impossible for Defendant to safely stop or swerve to avoid hitting Plaintiff’s vehicle. Plaintiff’s actions and/or inactions were the proximate cause of the accident and injuries to Defendant. Immediately after the accident, Plaintiff advised Defendant that she was “sorry” and that she did not know how to turn on her emergency flashers and was trying to call her father at the time of the accident to ask him how the emergency flashers worked.

4. As a result of the Plaintiff’s negligence, the Defendant has incurred property damage to her vehicle, out-of-pocket expenses, permanent physical injuries and experienced pain and suffering entitling her to damages in excess of $10,000.00 from the Plaintiff.

WHEREFORE, having fuiiy answered, Defendants pray that Plaintiffs take nothing by way of their Petition herein and that Defendants be dismissed with costs and attorney fees; and for judgment in favor of Defendant, Shelby Miller, against Plaintiff, Jacqueline Hicks, in excess of $10,000.00, and for her costs, interests, attorney’s fees and any other relief to which she may be entitled.

Outcome: COMES NOW the Plaintiff, by and through counsel, and dismisses the above captioned cause with prejudice to further litigation pertaining to all matters involved therein, and states that a compromise settlement covering all claims involved in the above captioned cause has been made between the parties.

Plaintiff's Experts:

Defendant's Experts:

Comments: