CapMetro answer to lawsuit

7/23/2019 CapMetro answer to lawsuit

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9334P.002

11 11 2 01 18:24

F X

WBPC AUSTIN

CAUSE NO. D-1-GN-15-004821

BARBARA DIMICELI

Plaintiff,

v

THE CITY OF AUSTIN, TEXAS AND

CAPITAL METROPOLITAN

TRANSPORTATION AUTHORITY,

AKA CAPITAL METRO,

Defendants.

§

§

§

§

§

§

§

§

§

§

IN

THE 98TH DISTRlCT COURT

OF

TRAVIS COUNTY, TEXAS

DEFEND NT C PIT L METROPOLIT N TR NSPORT TION

AUTHORITY S

ORIGIN L NSWER

TO THE HONORABLE nJDGE:

003 008

Comes now Defendant Capital Metropolitan Transportation Authority and files

this Original Answer

to

Plaint iffs Petition

in

the above·styled and numbered cause, and

would respectfully show the court as follows:

I GENER L DENI L

I. Pursuant to Rule 92

of

the Texas Rules

of

Civil Procedure, Defendant

generally denies each and every, all and singular, the allegations contained in the

Plaintiffs Original Petition, and demands strict proof thereof by a preponderance of the

credible evidence, hereby reserving their right to amend this answer to assert other and

further defenses in the premises.

2 Pursuant to Rules 47 and 91 of the Texas Rules of Civil Procedure,

Defendant specially excepts to Plaintiffs' petition because it fails to state the maximum

amount of damages, and Defendant demands that Plaintiff now plead the maximum

amount

of

damages sought. Pursuant to §30.014

of

the Texas Civil Practices

~ f e n d a n t

Capital Metro s Original Answer. page I

of

6



9334P.002

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W PC

USTIN

004 008

Remedies Code, Defendant specially excepts

to

Plaintiff's petition because it does not

state the last three digits of Plaintiffs driver's license number or social security number.

3. To the extent that Plaintiff's medical specials (bills) exceed the amount

actually paid or incurred by or on Plaintiff's behalf, Defendant asserts the statutory

defense set forth in §41.0105 of

th

Texas Civil Practice Remedies Code. Thus,

recovery of medical or healthcare expenses is limited to the amount actually paid or

incurred by or on behalf

of

Plaintiff.

II. AFFIRMATIVE DEFENSES

4. Defendant pleads

as

an affirmative defense that the occurrence in

question, as well as the damages complained of herein, were proximately or producingly

caused, in whole or in part, by the acts, omissions, fault, negligence, responsibility, or

other conduct on th part of Plaintiff, Decedent, and/or responsible third parties for whom

Defendant is not responsible under the law. By reason thereof, Defendant asserts that

their legal liability, if any is as prescribed and set forth in the Texas Civil Practice

Remedies Code,§ 33.001 et seq,

5, Defendant pleads

the

defense of sole proximate cause.

6. Defendant pleads the affirmative defense of Limitation on Amount of

Liability pursuant to the Texas Tort Claims Act,§

101.023(b)

of the Texas Civil Practice

and Remedies Code.

7.

Defendant pleads the affirmative defense

of

governmental immunity for

any award of exemplary

dan1ages

pursuant to the Texas Tort Claims Act, §

101.024

of

the Texas Civil Practice and Remedies Code.

8. Defendant pleads the affirmative defense of unavoidable accident.

Defendant Capital Metro s Original Answer, page 2 of6



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WBPC AUSTIN

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9.

Defendant pleads that Capital Metropolitan Transportation Authority

is

not a proper party to this suit because the operator

of

the vehicle involved in the incident

made basis

of

this lawsuit, Ron Calvert, was not an employee

of

Capital Metropolitan

Transportation Authority at the time the incident made basis

of

this suit occurred and

therefore vicarious liability does not apply. In the alternative, Defendant pleads that

Capital Metropolitan Transportation Authority should

be

released as a defendant under

the Texas Tort Claims Act

§ I 0

.1 06.

10.

Defendant demands a trial by jury.

In

this regard, Defendant would show

that it

is

exempt from posting security for costs under

§

451.054(c)

of

the Texas

Transportation Code.

III REQUEST FOR DISCLOSURE

11.

Pursuant to Rule 194, you

a:re

requested to disclose, within thirty (30) days

of service of this request, the following information or material described in Rule 194.2:

(a) the correct names

of

the parties to the lawsuit;

(b) the name, address, and telephone number of any potential parties;

(c) the legal theories and, in general, the factual bases

of

the responding

party s claims or defenses;

(d)

the amount and any method

of

calculating economic damages;

(e)

the name, address, and telephone number ofpersons having knowledge of

relevant facts, and a brief statement

of

each identified person s connection

with the case;

(t) for any

testifying expert;

I)

the expert s name, address, and telephone number;

Defendant

Capital

Metro s Original Answer page 3 of 6



9334P.002

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(2) the subject matter on which the expert will testify;

(3) the general substance

ofthe

expert s mental impressions and

opinions and a brief summary of the basis for them, or if the expert

is not retained by, employed by, or otherwise subject to the

control ofthe responding party, documents reflecting such

information;

4) if the expert is retained by, employed by, or otherwise subject to

the control ofthe responding party:

(A) all documents, tangible things, reports, models, or data

compilations that have been provided to, reviewed by, or

prepared by or for the expert in anticipation

of

the expert s

testimony; and

(B) the expert s current resume and bibliography;

(g) any discoverable indemnity and insuring agreements;

(h) any discoverable settlement agreements;

(i) any discoverable witness statements;

G in a suit alleging physical or mental injury and damages from the

occurrence that

is

the subject of the case, all medical records and bills that

are reasonably related to the injuries or damages asserted or, in lieu

thereof, an authorization permitting the disclosure

of

such medical records

and bills;

k) in a suit alleging physical or mental injury and damages from the

occurrence that is the subject of the case, all medical records and bills

~ f e n d a n r

Capital Metro s Original Answer, page

4 of 6



9334P.002

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WBPC AUSTIN

007 008

obtained

by

the responding party

by

virtue of an authorization furnished

by

the requesting party;

and

I) the name address,

and

telephone number

of

any person

who

may

be

designated as a responsible third party.

IV. PR YER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take

nothing herein, that Defendant

have its

costs of Court,

and for

such other

and

further

relief, both general

and

special, to which Defendant may

be

justly entitled, whether at law

or

in

equity.

By:

Respectfully submitted,

WALKER BRIGHT

PC

5407

Parkcrest Drive, Suite

300

Austin,

Texas 78731

Telephone:

512) 708-1600

Facsimile: 512) 708-1500

ARTHUR L.

WALKER

State

Bar No. 20693900

[email protected]

TTORNEY FOR DEFEND NT

~ f e n d a n t

Capital

Metro s Original

Answer, page

5 of 6



9334P.002

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WBPC AUSTIN

008/008

CERTIFIC TE OF SERVICE

This is to certify that a true and correct copy

of

the above and foregoing

Defendant Capital Metro s Original Answer

has been sent to the following via facsimile

and electronic filing with the court on November

II

2015.

Broadus A. Spivey

Law Offices ofBroadus

A.

Spivey

3303 Northland Drive, Suite 205

Austin, TX 78731

Facsimile: 512) 474-1605

I Holifield

Holifield Associates

11907 Kingston Pike, Suite 20 I

Knoxville, TN 37394

Facsimile: 865) 566-0119

li

RTHUR

L.

W LKER

Defendant Capital Metro

:s

Original Answer page

6

of

6



9334P.002

11/11/2015

18:23 F X

WBPC AUSTIN

WALKER BRIGHT PC

ATTORNEYS AT LAW

5407 Patkorest Drive, Suite

300

A u ~ t h 1 Tcxns 7873

Telephone:

512) 708-1600

Fac,imilo:

l l l )

708·1 500

November 11, 2015

VIA FASC MILE: 865) 566-0119

AI

Holifield

Holifield Associates

11907

Kingston Pike, Suite

20

I

Knoxville,

TN

37394

VIA FASCIMILE: 512) 474-1605

Broadus Spivey

Law

Office

of

Broadus

A.

Spivey,

P.C.

3303 Northland Drive, Suite

205

Austin, Texas 78731-4955

Re:

Cause No. D-1-GN-15-004821;

Barbara Dimiceli v

The

City of Austin,

Texas and Capital Metropolitan Transportation Authority, AKA Capital

Metro; In the

98

1

h

District Court ofTravis County, Texas.

Dear

Mr.

Holifield

Mr.

Spivey;

Enclosed please

find the

following answer that was e-filed today:

1.

Defendant Capital Metropolitan Transportation Authority's Original

Answer.

Please do not hesitate to contact our office if you have any questions.

arne

Enclosure

Sincerely,

WALKER BRlGHT

PC

Amanda Craven

Paralegal

to

Arthur L. Walker



9334P.002

11/11 /201 18:23 F X

WBPC AUSTIN

WALKER BRIGHT

PC

ATTORNEYSATLAW

54 7 Parkcrest Drive

Suite 300

A u ~ t l n

"rc:xR I

76731

Telephone;

5 12) 708-1600

Facsimile: S 12) 708·1500

TO:

BROADUS SPIVEY

COMPANY:

FACSIMILE TRANSMITTAL SHEET

FROM:

ARTHURL. WALKER

DATE:

LAW OFFICE

OF BROADUS A. SPIVEY,

P.C.

11111/2015

FAX

NUMBER:

512-474-1605

CASE:

BETHANY

CLARK

SENT BY:

A. CRAVEN

TOTAL

NO. OF

PAGES, INCLUDING COVER:

8

PROJECT CODE:

TIME

0

URGENT

0

FOR REVIEW

0

PLEASE REPLY

0

PLEASE SIGN

0

PLEASE FILS

NOTES/COMMENTS:

Please see the

attached

letter and Def Cap Metro's Original Answer.

NOTYCE OF CONF·iDENTi LITY

001/008

THE DOClJMIINTS ACCOMPA-NYING THIS FACSIMILE TRANSMISSION CONTAIN CONFIDENTIAL

INfORMATION, WHICH IS LEGALLY, PRMLEGED AND INTENUitD SOLELY FOR THE USE OF THI'; PA-RTY

TO

WHOM IT IS ADDRESSED. WE REQUEST 1M

MEDIA.

T£ NOTIFICATION BY TELEPHONE OF MISROUTED

FACSIMILE 1'MNSMISSIONS SO THAT WE

CAN

AIU\i\NGI FOR THE RETURN OF ALL DOCUMENTS

TO

OUR

OFFICE. IF YOU RECEIVE

TlfiS

FACSIMILE TRA-NSMISSION

IN

ERROR. YOU ARE HEREBY NOTIFIED THAT

ANY l)ISCLOSJJRE, COPYING DISTRIBUTION OR THE TAKING

OF

ANY ACTION IN RELIANCE UPON THE

CONTENTS OF ANY TMNSMITTED DOCUMENT HEREOF IS STRICTLY PROHIBITED.

IF ANY I'AGES ARE MISSING OR ARE RECEIVED POORLY,

PLEASE CALL (512) 708·1600.

D II O Orne I00 N. Central lixprosswoy, Stc.

800

Rlchord•on, TeXILS 7S080 Telephone: 972) 744-0192

Fac,imilc;

972) 744-0067

Documents

CapMetro answer to lawsuit