Petition and Discovery on Bad Faith, Deceptive Trade Practice, Aftermarket parts, clipping and failure to tender fair market value in good faith.

NO.

JAN KROCKER AND                               §                              IN THE COUNTY COURT
JOSEPH KROCKER                                  §                              AT LAW NO.
PLAINTIFFS                                              §                               HARRIS COUNTY,
                                                                    §                               TEXAS,
VS.                                     

xxxx A. xxxx,
xxxx x xxxx AKA
xxxx xxxx,
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY
DEFENDANTS
 

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES JAN KROCKER AND JOSEPH KROCKER, Plaintiff in the above-styled and numbered cause, and files this its complaint against xxxx x. xxxx, xxxx xxxx xxxx AKA xxxx xxxx, and ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants herein, and for cause of action would show unto the Court as follows:

Pursuant to Rule 190, the Plaintiff alleges the case will be governed by a Level 1 (suits involving $50,000.00 or less) discovery control plan. PARTIES Plaintiff, JAN KROCKER is an individual who resides in Harris County, Texas. Plaintiff, JOSEPH KROCKER, is an individual who resides in Tarrant County, Texas. Defendant, xxxx A. xxxx, (SSN 460-xx-xxxx, DOB 6/30/57) is an individual residing in Harris County, Texas, and may be served with citation by delivery of same, with a copy of the petition attached, to xxxx A. xxxx at 459 xxxx xx., xx, Harris County, Texas 77xxx or at her place of employment, Allstate, 1500 City West Suite 700, Houston, Texas 77042 Defendant, xxxx xxxx xxxx AKA xxxx xxxx (“xxxx”)(TDL 1990xxxx) is an individual and may be served with citation by delivery of same, with a copy of the petition attached, to xxxx xxxx xxxx AKA xxxx xxxx at 1024 xxxx St., Houston, Texas 77xxx, (832) 722-xxxx9, (713) 864-xxxx.. Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, (“ALLSTATE”) is a corporation who may served through its registered agent C.T. Corp. 350 North St. Paul St., Dallas, Texas 75201. FACTUAL BACKGROUND On or about August 2, 2003, plaintiff was operating his 2000 Toyota Celica at the intersection of Greenbriar and the south feeder road of U.S. Highway 59, the Southwest Freeway, heading eastbound on the feeder road at 5-10 mph when Murray’s 1995 Toyota Celica ran a red light. Joseph Krocker’s Celica hit the passenger door of the 1995 Celica. Murray was reading a map and failed to stop at the red light at the intersection of the south feeder road and Greenbriar. Murray was doing 35 mph through the intersection. Murray received traffic tickets for failure to stop and the red light. See the attached police report, Exhibit “A” page 81 and the witness statement page 80. Plaintiff’s insurance company is AMICA. Murray’s insurance company is Allstate. Murray selected an inexpensive policy which does not cover handling claims in an ethical or moral manner. Allstate has publicly stated that their premiums would be double if they had to follow the law in the state of Texas in which the insured or third party claimant selects the body shop or repair shop, if aftermarket parts can’t be used and if clipping is not allowed. See Exhibit “A” page 98. On August 5, 2003, AMICA issued their appraisal report from First Appraisal Claims Service, G. Hagerud. The AMICA report showed the 2000 Toyota Celica was totaled since it had a value of $16,541.70 and the estimate for repair was $9,959.61. See Exhibit “A” pages 68-71. On August 19, 2003, Allstate’s appraiser, Danny Childress finally inspected the 2000 Toyota Celica and found it could be repaired with aftermarket parts and clipping onto the front half a Celica found in Oklahoma from Dan’s Salvage for $$3,850.00 plus 25 hours labor. See Exhibit “A” pages 72-76. A clip job means something very specific: welding the front or back half of a junkyard car onto your vehicle after it has sustained major damage in a crash. A rear clip is generally an easier and less risky job to perform than a front clip. The body shop attaches the entire rear half of a car, including the rear quarter-panels, the trunk lid, a section of a floor pan, the rear suspension system and possibly the entire roof. A front clip is far more complex, because it involves the entire drive train, steering system, braking system and possibly the dashboard electronics. The job involves making critical engine, transmission, braking and fuel system linkages. Clip jobs have such poor reputations that some insurance companies refuse to permit them, though other insurers encourage body shops to perform them as a way to hold down costs. The Automobile Club of Southern California, for example, will not touch a front-end clip. Indeed, auto makers generally specify that vehicle unibodies must be aligned to within no more than one-sixteenth of an inch in all dimensions. Without proper jigs and tools, your shop might never get your vehicle aligned properly after a clip job, and it could end up a "dog walker"--traveling sideways a bit. See Exhibit “A” pages 86-87. On August 19, 2003, Sherry Strunk informed Dan Krocker that the 2000 Toyota Celica had to be moved at his expense out of Metro Salvage Yard to a body shop of his choice in order to get a rental car during the period that Allstate could further examine the car after it had been taken apart for examination. During this telephone conversation, Dan Krocker informed Sherry Strunk that the car would be towed to Freedom Paint and Body on N. Shepherd. On August 19, 2003, the car was towed to Freedom Paint and Body. Dan Krocker called Sherry Strunk in the afternoon of August 19, 2003 and informed her that the car was available for inspection at Freedom Paint & Body. By Monday, Hank at Freedom had the car taken apart and called Allstate three times for them to send someone out to look at the wreck. Allstate refused to send anyone until they had received another demand letter from Dan Krocker. Plaintiff found a repair person, Gary O’Brian who reviewed the prospects for clipping and found the labor would be about 75 hours. The Allstate estimate failed to disclose diminished value, problems with title, problems with two VIN numbers, and safety issues. Such lack of disclosures violated the TDTPA and Tex. Ins. Code Art 21.21. Allstate violated the recent amendments to Art. 21.56A of the Tex. Ins. Code by: 1. failing to respond within the 15 day period 2. failing to admit liability 3. failing to provide a timely appraisal 4. Appraises the property damage to the motor vehicle in an amount insufficient to repair that damage without a reasonable basis for the amount of the appraisal. Although the recent amendments are not effective yet, they do highlight the inability of Allstate to act in good faith. As evidenced by the CBS news report on Allstate, Allstate’s excuse is they could not financially operate in an environment which would require them to (I) disclose the use of aftermarket parts, (ii) fully disclose the implications of clipping and (iii) letting the insured or third party claimant select the body shop. See Exhibit “A” page 98. Plaintiffs’ position is that if Allstate can’t follow the laws in the state of Texas, then they need to stay out of Texas. On August 20, 2003, Plaintiffs sent the defendants a demand letter pertaining to their calculation of the fair market value of the 2000 Toyota Celica, the name and address for the registered agent for Allstate and written confirmation that Allstate was accepting liability. Allstate refused to provide information pertaining to its registered agent. Plaintiffs had to contact the Texas Department of Insurance to determine the name and address of the Registered Agent for Allstate. Obviously, Allstate has no fair estimate of repairs or fair market value when they hide behind the ability of the consumer to find Allstate’s registered agent. See Exhibit “A” pages 105-113. On or about August 20, 2003, the Plaintiffs provided written notice of the location of the 2000 Toyota Celica at Freedom Paint and Body Shop. By this time, the tentative Allstate figures for the estimate to repair the vehicle is approximately $3,000 below the estimate from AMICA. AMICA considers the vehicle totaled. The Allstate tentative figure for the value of the vehicle understated by more than $1,000 from the AMICA valuation. On or about August 30, 2003, Plaintiffs sent an additional demand letter pertaining to Allstate’s use of aftermarket parts. The Plaintiffs were responding to the distressing corrected estimate dated August 19, 2003 which mentions the use of aftermarket parts and crash parts. The Plaintiff never received a complete set of the form letter. Plaintiff requested complete copy of the letter and Allstate has refused to provide a complete copy of the letter. Plaintiff received pages 1-3 which ends with “all sheet metal components should.” Obviously the correspondence was about to get juicy. Jan Krocker is very protective of Joe Krocker since he was kidnapped when he was in grade school. The Plaintiffs are not interested in any imitation parts. See Exhibit “A” pages 14-38. A copy of the August 30 letter was sent to the Attorney General’s Office and various state legislators. See Exhibit “A” pages 9-13. When you compare the AMICA assessment to the Allstate assessment, Allstate seems to be suggesting locating a Celica, sight unseen from Dan’s Salvage from Oklahoma with back end damage and welding the two halves together. The costs of new chaises of $600 per side will equal the difference between the AMICA and Allstate assessments. Hank at Freedom Paint & Body came to the same conclusion after reviewing the Allstate estimate. Obviously the Allstate assessment of welding two cars together and using imitation parts is not acceptable. By August 30, 2003, Allstate had still not gone out to Freedom Paint and Body Shop to re-evaluate the problems in their report even though Plaintiff had to arrange for a wrecker based upon Allstate’s representation that the vehicle had to be moved to a shop of Plaintiff’s choice for further examination. The AMICA estimate does not use aftermarket parts and clip two cars together. The AMICA report assumes the insured will select the body shop. The Allstate report dictates an illegal, highly risky clip job in which the only body shops that do this kind of work have specialized equipment and are on Allstate’s list of “approved” body shops. Allstate gets around the 1991 amendments to Tex. Ins. Code Art. 21.21. by dictating repairs that are unsafe. Allstate’s website provides the following reason for buying automotive insurance: Provides for the repair or replacement of your vehicle up to the Actual Cash Value of the vehicle. Auto Insurance can help safeguard your investment in your automobile. These are false deceptive statements. Most automobile policies in Texas limit liability to : “Our limit of liability for loss will be the lesser of the : 1. Actual cash value of the stolen or damaged property; 2. Amount necessary to repair or replace the property with other of like kind and quality; or 3. Amount stated in the Declarations of this policy.” Plaintiff has requested on numerous occasions a copy of the insurance policy in which Murray is the insured pertaining to this accident. Plaintiffs anticipate that the policy promises to pay the loss in money or repair or replace damaged or stolen property. Plaintiff has previously requested a copy of the current guidelines that Allstate adjusters follow when writing estimates for replacement parts. Again, Allstate has been unresponsive. Allstate’s communications predominately are in response to the Texas Department of Insurance’s investigation into the illegal practices of Allstate with regard to this litigation. In particular, Plaintiffs are looking at the guidelines pertaining to when Original Equipment Manufacturer ("OEM") is suggested and when non-OEM crash parts (“imitation parts”) or salvage OEM parts are suggested. For purposes of this petition, OEM parts are those parts made by the original automobile manufacturers or suppliers; non-OEM parts are made by outside companies without access to the design specifications of the OEM parts. Plaintiffs’ request for documentation and information pertaining to the computer program used by Allstate adjusters to identify repairs the vehicle will require were ignored. Plaintiffs are interested in examining whether the estimating software systematically excludes from estimates certain repairs deemed necessary by industry standards. After examining the program and documentation, Plaintiffs anticipate finding: ( I) Allstate claims estimators are required to utilize a computer system programmed to select the cheapest available non-OEM part certified by the Certified Automotive Parts Association (CAPA), an association formed and largely funded by the insurance industry to regulate and certify aftermarket parts ; (ii) that the Allstate adjusters/estimators have no authority to substitute OEM parts in damage estimates when non-OEM parts are cheaper and available; (iii). that in the event the damaged part was not one that was subject to CAPA certification, the computer selected and the estimator routinely specified a noncertified, non-OEM part. (iv). that Allstate’s estimate does not provide for all the repairs I-CAR recommends. Such repairs include seatbelt safety tests, wheel alignments, adjusting the aim of headlamps, and corrosion protection (I-CAR, a non-profit organization composed of insurance companies, automobile manufacturers, collision repair facilities and automotive suppliers, has developed industry repair standards since 1979); (v). That the Allstate computer program contains a matrix of all parts that are available and the suppliers who carried those parts. Allstate selects the suppliers and approved the parts that are listed in the computer software. In order to prepare a damage estimate, the claims estimator enters into the computer system the make and model year of the damaged part, and the computer identifies the cheapest part without regard for the pre-loss condition of the damaged vehicle. That part and its cost would be specified on the damage estimate. The claim is resolved based upon the cost of the non-OEM part. Adjustors and claims estimators are trained in these policies and practices through in-house seminars, which were held at the home office. (vi). With regard to Joe Krocker’s vehicle, a comparison between the AMICA estimate and the Allstate estimate, the non-OEM parts which Allstate specified are categorically inferior in terms of fit, function, performance, durability, corrosion resistance, appearance, and safety. (vii) Allstate knowingly conceals information about the inferior condition of the non-OEM parts it was specifying on damage estimates and misrepresents the quality and condition of those parts to its policyholders (viii). Allstate’s guarantee that it would replace non-OEM parts at no cost to the unsatisfied policyholders upon demand is bogus. If the aftermarket part is warranted by the part manufacturer, the policyholder is required to contact the manufacturer for relief. In most cases, these part manufacturers were located outside the United States in Taiwan or another country. If the policyholder demands replacement of the non-OEM part, an Allstate adjustor is required to investigate the claim, and if it is approved, an OEM replacement part is installed but the cost was charged to the policyholder as an indemnity payment. (ix) Allstate will not be able to identify any state that authorizes an insurer to specify inferior replacement parts. (x) Allstate will not be able to demonstrate that its conduct is authorized by any other state's laws nor that it is in compliance with the substantive laws of Texas. (xi) Considering the form letter Plaintiffs received, there is substantial evidence that the deceptive practices were devised, implemented, and carried out from Allstate’s home office. (xii). An omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. There is sufficient evidence that the non-OEM parts which Allstate specified were categorically inferior, that Allstate specified non-OEM parts that it knew to be inferior, that Allstate does not inform its policyholders that the non-OEM parts it specifies are inferior, and that Allstate knowingly represents on its estimates, in its correspondence and through its estimators that these non-OEM parts were of equal quality or better than OEM parts. There is evidence that Allstate’s material misrepresentations led numerous claimants to blindly accept the non-OEM parts specified (i.e., without knowledge of the inferior condition of those parts). There is overwhelming evidence of Allstate’s calculated deception of its policyholders in a deliberate disregard of its express written promises contained in the policies issued. The deceit is deliberate and universally employed for the purpose of obtaining unearned, illegitimate monetary gain. This was an ill-gotten gain, acquired at the expense of persons that trusted and relied upon Allstate for honest, fair treatment. (xiii). Manufacturers of imitation parts have been involved in civil litigation in which they concede they have mislead the public on the quality. For instance, in prior litigation, Keystone Automotive Industries has conceded that it was not a manufacturer and did not have a general program of quality control Keystone Automotive Industries Inc., the leader in so-called aftermarket vehicle collision parts sells non-brand-name bumpers, grilles, lights, wheels and paint to about half of the nation's 53,000 auto body shops. Courts have found that Keystone’s claims regarding its manufacturing facilities and its quality control program were false claims, and were deliberately made with the intention of misleading the public as to the nature of its business and the manner in which it operated. As to quality, Keystone claimed that the parts it sold were exact duplicates of original equipment manufacturer (OEM) parts in fit, finish, weight and overall quality or met or exceeded OEM specifications or were of like kind and quality to OEM parts during the above-stated period. Once again, courts have determined that the claims made by Keystone were, in fact, false and were made with the deliberate intention of misleading the public as to the characteristics of the parts it sold. (xiv) Some state regulators are more aggressive in pursuing the imitation parts marketing drive by Insurance companies. For instance, Agriculture and Consumer Services Commissioner Bob Crawford for the state of Florida have sent notices to the state's 20,000 auto repair shops, warning that they should not use aftermarket crash parts "unless they are equal in fit, quality and performance to the auto manufacturer's original parts." It also asked repair shops to report any cases where insurance companies tried "to force the shops to use inferior crash parts -- an action that will trigger an investigation" by Crawford's office and the Florida Department of Insurance, which regulates insurance companies, and could produce fines and other penalties. The District of Columbia currently has legislation pending pertaining to the regulation of Insurance companies disclosure policy of recommending or acquiring imitation parts. (xv) Allstate failed to inform Plaintiffs of the problem with regard to clipping the vehicles since the vehicle will have two different VIN numbers based upon the two halves of the car. The proposed clip job would result in actually two halves from each of two separate Toyota Celicas, which had been welded together onto a single frame. The vehicle identification number would relate only to the back half of the vehicle; the vehicle identification number and the mileage and history of the front half from a salvage yard in Oklahoma may remain undisclosed. Often times, Allstate or its agents will remove the VIN number from the Oklahoma wreck. After all, how could the newly formed mix and match new vehicle be registered in the state of Texas with two VIN numbers? No wonder Plaintiffs could not find a body shop that does these kind of clip jobs. The Allstate adjuster, Lonnie Matthews offered to provide a list of approved Allstate body shops who do clip jobs which is Allstate’s way of getting around the 1991 amendments to Tex. Ins. Code Art. 21.21. (xvi) Allstate initially failed to inform the Plaintiffs that the car title will reflect the car was totaled therefore diminishing the value. Once Plaintiffs contacted the Attorney General for the state of Texas, the Department of Insurance and various state legislatures concerning Allstate’s illegal activities of not fully disclosing the use of aftermarket parts, clipping cars and the diminished value, Allstate changed their tune and conceded the car was totaled in hopes of preventing an investigation into their illegal activity. Pursuant to Rule 404(b), the scheme and intent to sucker the Plaintiffs into a clip job with aftermarket parts and then a switch to concluding the car was totaled is a bait and switch tactic in which the Plaintiffs are suckered into thinking how grateful they should be to go from a repair estimate of $7,792.56 to a fair market value on a totaled car of $15,188.00. Allstate’s devious plan doesn’t work because they have too many employees in the sales program to sucker the consumer. Neither Prescilla Jones nor Celist Land realized that when they mentioned a fair market value of $15,188.00 that Danny Childress had previously determined a month earlier that the fair market value was $15,525 which was still $1,000 less than the AMICA calculation. To add to the consumers’ anxiety and financial problems, Allstate cancels the rental car. (xvii) Allstates’ repair appraisal failed to inform Plaintiff’s of the diminished value. (xviii) At no time did Allstate disclose that the clip job would cancel the Plaintiff’s extended warranty. At no time did Allstate offer to compensate the Plaintiff’s on their extended warranty. The Allstate estimate of repairs and estimate of fair market value ignored the cancelled extended warranty. (xix) At no time did Allstate disclose that the proposed clip job would not pass the annual inspection as required in the state of Texas. (xx). Allstate attempts to minimize any "paper trail" evidencing the wreck/reconstruction history or the mileage discrepancy in these clip jobs by hoodwinking the insured about the proposed repair work. Most vehicle owners know little about the specifics of a vehicle repair. The vehicle owner’s interest will arouse after a vehicle accident. It is at the point of repair that the vehicle owner should be informed of the types of crash part(s), i.e. aftermarket, original equipment manufactured, recycled, etc., to be used in the repair and the safety concerns about clip jobs. Plaintiffs did not understand Allstate was proposing a clip job until Hank at Freedom Paint and Body disclosed that he did not do clip jobs. You have to carefully read the Allstate repair estimate to understand that they are proposing to purchase a clipped car for under $4,000 and weld it onto Joseph Krocker’s car in a Barnum Bailey style. During a later collision, it is probable that the welds will break and the car will end up going in two directions. Despite the numerous indications of wreck damage, despite the strong reputation within the industry for vehicles sold at wholesale auctions to have greatly increased likelihood of having wreck damage, and despite many other factors known in the industry that raised questions about the vehicle, Allstate has a scheme and intention to flood the Texas used car market with undisclosed wrecks that have been subject to clip jobs. CIVIL CONSPIRACY, FRAUD, INTENTIONAL MISREPRESENTATION AND CONCEALMENT The extreme wreck damage and proposed grossly improper reconstruction of the 2000 Toyota Celica would result in the car being extremely dangerous to drive and a safety hazard to both its passengers and others in its vicinity, and to have recurring mechanical and structural problems and innumerable other defects of all kinds. Allstate knew or should have known that their knowledge of the implications of the proposed reconstruction of the wrecked vehicle and the proposed clip job and proposed dual-vehicle history and of the many defects; was superior to that of the plaintiffs, and such knowledge was not within the fair and reasonable reach of the plaintiffs. The conduct of Allstate was willful, wanton, malicious, with intent to defraud, and was outrageous by reason of evil motive and/or conscious indifference to or reckless disregard for the safety and rights of the plaintiffs and of others, and without just cause or excuse. The actions and omissions of defendants as alleged constituted civil conspiracy and fraudulent misrepresentation and concealment. Plaintiff suffered damages proximately caused by the conduct of Defendants as alleged. NEGLIGENT MISREPRESENTATION The conduct of Defendants as alleged in addition and in the alternative constituted separate negligent misrepresentations that were false because of their failure to exercise reasonable care or competence in obtaining or communicating the information, including but not limited to misrepresentations about the fraudulent representations of the proposed repair estimate, the clip job and the calculation of fair market value and diminished value. Defendants supplied this information to Plaintiffs in the conduct of its business of clipping cars rather than totaling them. As a proximate result of these negligent misrepresentations, the plaintiff suffered damages as alleged. The conduct of each of the defendants was outrageous by reason of evil motive and/or conscious indifference to or reckless disregard for the safety and rights of the plaintiff and of others, and without just cause or excuse. We anticipate at trial, Allstate will use the following smoke and mirrors: ( I) Allstate will present witnesses who will testify that: a. the use of non-OEM parts has been approved certain states, b. that non-OEM parts are "equivalent" or "functionally equivalent" to OEM parts, c. that the use of non-OEM parts does not adversely effect occupant safety, and d. that non-OEM parts does not reduce the value of the vehicle. (ii) Allstate will present evidence to show that it advises its policyholders of its use of non-OEM parts in the policy, in estimates, and in a pamphlet provided with the estimate. (iii) Allstate will present evidence of the high percentage of policyholders (excluding Murray) who renew their policies. This evidence will be offered in an attempt to prove that with the exception of Murray, Allstate’s insureds are satisfied customers. (iv) Allstate will allege its representations were nothing more than statements of opinion or puffery. However, Plaintiffs contend these representations assigned "virtues" to non-OEM parts that they did not possess. They are representations that a reasonable policyholder would have interpreted as fact. The evidence of Allstate’s deceptive claims practices moves this case beyond a mere contract breach. Upon complaining about the diminished value, Allstate miraculously agreed the 2000 Toyota Celica was totaled. The parties now have a classic battle of experts concerning the fair market value of the car rather than the repair costs based upon like kind and quality. The fact finders will be required to determine the weight and credibility of these witnesses in Harris County, Texas where Allstate has a bad reputation. A recent Consumer Report made the following observations pertaining to imitation parts (Exhibit “A” page 105): ( I) Auto insurers are pushing shoddy collision-repair parts, and consumers may not know it. (ii). Crash parts are a big business. Each year, U.S. drivers have an estimated 35 million automobile accidents costing some $ 9 billion in crash parts. The most frequently replaced parts are bumpers and fenders. (iii). Many collision repairers complain that imitation parts generally don't have the same fit and quality as OEM parts. (iv). Most auto insurers endorse imitation parts because they can be 20 percent to 65 percent less expensive than OEM. But the companies Plaintiffs surveyed provided no evidence that those savings are being passed on to policyholders. (v). The imitation bumpers and fenders that Consumer Reports tested were inferior to OEM parts. The bumpers fit badly and gave poor low-speed crash protection. Most of the fenders also fit worse than OEM fenders, and they rusted more quickly when scratched to bare metal. (vi). The Interinsurance Exchange of the Automobile Club of Southern California uses only OEM metal body parts. The Interinsurance Exchange of the Automobile Club of Southern California won't use imitation body parts since you get bubbling, paint flaking off, premature rusting. (vii). The Consumer Reports lab found that some of the imitation parts weren't as strong, were more likely to have problems with cracking and peeling paint, and showed weight differences, indicating a wide variation in quality control. (viii). CAPA literature represents that CAPA parts are of "like kind and quality" to OEM parts. But CAPA's quality-standards manual requires only "functionally equivalent" parts. Such a careful choice of words is significant: A Saturn may be functionally equivalent to a BMW, but the two are hardly equal. (ix) In March, 1998, the Automotive Service Association (ASA), representing more than 12,500 repair shops, withdrew its support of CAPA because "CAPA has failed in its mission" and hasn't assured imitation crash parts that are equal in quality and consistency to OEM. (x) Consumer Reports found that collision repairers almost universally complained that too many imitation parts, whether CAPA-certified or not, leave noticeable gaps and don't always match the car's contours. (xi). Of 160 repair shops surveyed by Frost & Sullivan, an independent international marketing-consulting firm in Mountain View, Calif., 89 percent said that it takes about two hours longer to install an imitation part, costing $ 60 to $ 90 extra in labor. (xii). There may be two reasons for the poor fit of CAPA parts that repair shops complain about. One is "reverse engineering" - where manufacturers make copies of OEM parts. The second problem is that CAPA sheet-metal parts are tested for fit on a jig rather than on a car. (xiii). The Automotive Service Association says that 33 states require repair shops to disclose the use of imitation parts to consumers. Six others - Arkansas, Indiana, Oregon, Rhode Island, West Virginia, and Wyoming - also require the consumer's written consent But disclosure and consent are meaningless if insurers promise higher quality than they deliver. Based upon the way Joe Krocker has been treated in this case, Plaintiff believes that Allstate breached its contracts with policyholders to restore their vehicles to pre-loss condition by devising and implementing a practice that results in payment of claims based on (1) the systematic specification of "inferior" non-OEM crash parts for repairs and (2) the systematic omission of specific "necessary" repairs from estimates. “Crash parts" are described as vehicle components typically repaired or replaced as a result of crash damage rather than normal use. They are primarily sheet metal and plastic parts attached to the outer shell of the vehicle. The types of "crash parts" at issue included fenders, hoods, doors, quarter panels, tailgates, grills, headlight and taillight mounting panels, brackets, moldings, and bumpers. The laws of the several states range from allowing the use of non-OEM parts in a vehicle if the owner is given notice, to forbidding the use of non-OEM parts as a condition to payment of a claim. Because of the practice of specifying non-OEM parts or equipment for some covered repairs, policyholders' automobiles are not being restored to their pre-loss condition as required by their policies of insurance. After examining the form letter from Allstate, Plaintiffs anticipate finding that Allstate has a nationwide claims practice of uniformly specifying cheaper non-OEM crash parts on damage estimates issued to its policyholders despite the fact that it knew that those parts were inferior in quality and condition and would not return the damaged vehicle to its pre-loss condition. By adopting and employing this claims practice, Allstate is deceiving its policyholders in that it failed to inform them of the inferior quality of specified replacement parts. Plaintiffs believe that Allstate is able to succeed in this deception by representing that the inferior parts met high performance criteria and by offering a bogus guarantee to replace unsatisfactory non-OEM parts at no cost to the policyholder. In light of the cancellation of a rental car, Plaintiff anticipated that Allstate would try to financially squeeze Joe Krocker into an early low settlement offer since he is in his first year of college stranded away from home in Arlington, Texas. With the exception of Strunk’s decision to cancel the rental car twice, all of the conduct of the Allstate employees as alleged herein was within the course and scope of their employment with and for the benefit of Allstate. Plaintiffs informed the Defendants that they have reviewed the ruling in Berry and Dudney v. State Farm, 9 S.W.3d 884 (3rd Dist. Austin, 2000) and Plaintiffs will not make the same mistakes in their pleadings since Plaintiffs will not be abandoning their claims for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Deceptive Trade Practices Act and the Unfair Claim Settlement Practices Act. Plaintiff contends that Allstate is in breach of contract, breach of implied duty of good faith, and is unjustly enriched. Plaintiff believes that Allstate’s use of warranty language to convince a claimant to use non-OEM parts is evidence of bad faith under Tex. Ins. Code Art. 21.21 and the TDTPA. Plaintiffs have had ongoing discussions with the Texas Department of Insurance and the Texas Attorney General’s Office pertaining to this situation. Allstate believes they can get around the 1991 Amendments to Article 5.07-1 of the Texas Insurance Code by suggesting repair schemes that only their suggested list of body shops would be willing to do. Plaintiffs find it remarkable that Allstate is still disagreeing with the AMICA estimate in light of the hair brained scheme to chop cars up and clip them together. By September 6, 2003, Plaintiffs sent a demand letter on the diminished value of the 2000 Toyota Celica in which Allstate recommending a clip job. See Exhibit “A” pages 40-45. An examination of the Allstate appraisal leaves out any calculation for diminished value. Plaintiffs find such an omission, bad faith, a breach of fiduciary duty and a deceptive practice. The current split between the districts on diminished value does not make the insurer's election on whether to repair the car meaningless. The actual market value of the vehicle before injury may be considerably less than the cost of repairs plus the loss of market value; or the actual market value may be more than the cost of repairs plus the loss of market value. Since Allstate refuses to ( I) provide Plaintiffs with a copy of the policy, (ii) disclose its agent for service, (iii) elect to either repair the car or pay for its fair market value, (iv) provide in writing that they accept liability (v) provide in writing whether they are electing to repair the car using the clip method, and cancelled the rental car, Plaintiffs notified Allstate that they anticipated filing a declaratory action in the County Court at Law in Harris County. Plaintiffs anticipated prevailing at a motion for summary judgment based upon Plaintiff’s experts’ opinions on the inappropriateness of the clip job, the failure to provide like kind and quality parts, breach of fiduciary duty, bad faith, deceptive trade practices. Plaintiffs’ case is different from the Smither case since Plaintiffs are a third party claimant, not the insured, Smither did not involve the dangerous clip job suggestion, Plaintiffs do not find the proposed clip job acceptable and Plaintiffs’ case has an excessive amount of breach of fiduciary duty and bad faith claims in light of the cancellation of the rental car on two occasions and the financial squeeze applied to an 18 year old who is starting college. Therefore, Plaintiffs anticipated bringing the Houston courts of appeal into line with the other appellate courts in Texas in which by electing to repair or replace a vehicle, the insurer is required not only to repair and replace any physical parts of the vehicle damaged, but also to restore the vehicle to "substantially the same value as that of the vehicle prior to the loss." See Bailey, 78 S.W.3d at 708, Fid. & Cas. Co. of New York v. Underwood, 791 S.W.2d 635, 641 (Tex. App.-Dallas 1990, no writ). The proposed declaratory action would pertain to the language is contained in the Texas Personal Auto Policy: ''Our limit of liability for loss will be the lesser of the: (1) Actual cash value of the stolen or damaged property; (2) Amount necessary to repair or replace the property with other of like kind and quality; or (3) Amount stated in the Declarations of this policy'' [Texas Personal Auto Policy, Part D--Coverage for Damage to Your Auto]. In defining the term ''actual cash value,'' the Texas Supreme Court has said that ''[a]ctual cash value for marketable chattels, for which market value can be determined, is market value. When the market value of such property cannot be determined, or it is inadequate, then resort may be had to other factors to determine actual cash value'' [Mew v. J & C Galleries, Inc., 564 S.W.2d 377, 377 (Tex. 1978)]. Plaintiffs contend that since the parties disagree on the amount due from the fair market value calculation, Allstate can simply replace the car and end the costly litigation. Plaintiffs want the car replaced with the exact same model, options and extended warranty. There are plenty of 2000 Toyota Celicas on the market. The VIN number identifies the options on the car so neither side should be arguing on what options are involved. Another facet of the ''actual cash value'' measure is the property's scrap or junk value. If the insured retains the damaged property, the ''actual cash value'' of the loss is the diminution in value. Thus, Plaintiffs will plead and prove the values of the property before as well as after the loss. The difference is the ''actual cash value'' measure or limit. Under the ''repair or replace'' limitation on the insurer's liability, recovery cannot exceed the reasonable and necessary cost to restore the property to substantially the same condition as it was in immediately prior to the loss. If the repairs would leave the market value substantially less than the value before the loss, the repair limitation does not apply [Northwestern Nat'l Ins. Co. v. Cope, 448 S.W.2d 717, 719 (Civ. App.--Corpus Christi 1969, no writ); cf. New York Underwriters Ins. Co. v. Coffman, 540 S.W.2d 445, 459 (Civ. App.--Fort Worth 1976, ref. n.r.e.)]. Since AMICA has totaled the car, Plaintiffs anticipate proving the diminished value is several thousand dollars since it will be difficult to sell a car which has been totaled. In the typical case, the insurer is willing to pay for repairs and the insured wants the actual cash value. That is, the insured contends that the property is a ''total loss.'' In these cases, it is the insured's burden to prove that the property cannot be restored to substantially the same condition as it was in prior to the loss [Agricultural Workers Mut. Auto. Ins. Co. v. Dawson, 424 S.W.2d 643, 645 (Civ. App.--Tyler 1968, no writ)]. This will be an easy task in summary judgment in light of the findings by AMICA. Plaintiffs anticipate pleading and obtaining favorable findings as to: (1) the market value before the occurrence giving rise to the loss; (2) the market value immediately after the occurrence and before repairs; (3) the cost of repairs; and (4) the market value if the repairs had been made. If the market value after repair is substantially less than the market value before the loss, the property is a ''total loss'' and the cost of repair is not a limitation. Plaintiffs are entitled to the ''actual cash value'' measure, the diminution in value without repair, subject of course to any stated dollar limits [see Northwestern Nat'l Ins. Co. v. Cope, 448 S.W.2d 717, 719 (Civ. App.--Corpus Christi 1969, no writ)]. In one case, the insured was allowed to recover the cost of repairing fire damage to property without pleading or proof of the market values before and after the fire [see Imperial Ins. Co. v. Nat. Homes Acceptance, 626 S.W.2d 327, 330 (Tex. App.--Tyler 1981, ref. n.r.e.) --''in light of the policy provisions and the cases which allow recovery based upon the cost to repair or replace, it was not error for the court to allow plaintiffs to recover the cost [of repairing] the dwelling'']. Fortunately for Plaintiffs, the Texas Supreme Court ended the debate over whether claims can be asserted against a liability insurer under Texas Insurance Code, article 21.21 for the insurer's mishandling of third party claims - a debate fueled in part by the court's prior holdings in American Physicians Insurance Exchange v. Garcia (876 S.W.2d 842 (Tex. 1994)) and Maryland Insurance Co. v. Head Industrial Coatings & Services, Inc., 938 S.W.2d 27 (Tex. 1996) (per curiam). In Rocor International, Inc. v. National Union Fire Insurance Co., 77 S.W.3d 253 (Tex. 2002). the Texas Supreme Court held that article 21.21 of the Texas Insurance Code gives an insured a private cause of action against its liability insurer for unfair practices in settling third-party claims. Article 21.21 Provides a Private Cause of Action for an Insurer's Unfair Claims Settlement Practices under section a. Recognition of Cause of Action Under Article 21.21. Rocor International, Inc. v. National Union Fire Insurance Co., the Texas Supreme Court held that article 21.21 of the Texas Insurance Code gives an insured a private cause of action against its liability insurer for unfair practices in settling third-party claims. For the first time, the Texas Supreme Court addressed whether an insured is entitled to assert a claim against its liability insurer under article 21.21 for the insurer's handling of third-party claims. The supreme court rejected National Union's argument (and the suggestion from prior opinions issued by the supreme court) that such claims are restricted to first-party insurance claims. The supreme court recognized the cause of action and defined the standard of liability under the statute. Id. at 258-60. Under this ruling, there is no reason for Plaintiffs to purchase the bad faith claim from the insured, Murray. NEGLIGENCE OF MURRAY The occurrence made the basis of this suit and the resulting damages were proximately caused by the negligent conduct of defendants in one or more of the following respects: a. In failing to keep such lookout as a person of ordinary prudence would have kept under the same or similar circumstances. b. In failing to apply the brakes to her vehicle in a timely manner to avoid the collision in question. c. In failing to apply the brakes to his vehicle to avoid the collision in question. d. In failing to stop, yield, and grant the privilege of immediate use of the intersection to plaintiff's vehicle. e. In failing to keep a proper look out. f. In failing to stop, yield, and grant the privilege of immediate use of the intersection in obedience to a traffic signal erected by public authority. g. In failing to proceed into the intersection only when he might safely enter it without interference or collision with traffic. Each of these acts and omissions, singularly or in combination with others, constituted negligence which proximately caused the occurrence made the basis of this action and plaintiff's damages. BREACH OF CONTRACT Pursuant to conversations on August 19, 2003, xxxx A. xxxx at Allstate informed Plaintiffs that Joe Krocker’s Toyota Celica had to be moved from Metro Salvage Yard on Rankin Road to a body shop of Plaintiffs’ for further examination and review on the extent of the damages. Based upon Strunk’s representations, Plaintiffs selected Freedom Paint and Body Shop. xxxx A. xxxx provided Plaintiffs with an identification number, 802694 for a rental car since Plaintiffs were pursuing coverage under the Allstate policy and moving the vehicle to Freedom Paint and Body Shop at 4732 N. Shepherd, Houston, Texas 713-692-9800, Fax 713-692-9803. Although Plaintiffs were informed that Allstate was accepting liability, Plaintiffs have not received anything in writing. Despite their requests, Plaintiffs have not been reimbursed wrecker fees. After agreeing to provide a rental car and giving Dan Krocker an identification number 802694 for the rental, Sherry Strunk cancelled the rental car on August 19, 2003. Upon receipt of a demand letter for breach of contract, DTPA violation and violations under Tex. Ins. Code Art. 21.21, Allstate provided a new rental number for a car for a 30 day period. For a second time, the rental car was cancelled effective Monday September 15, 2003 when Allstate was unable to bully the Plaintiffs into accepting an amount below the AMICA fair market value calculation. Allstate paid for a rental car for less than the agreed 30 day period. Allstate often cancels rental cars in hopes of forcing a settlement. On August 19, 2003, Danny Childress, adjuster at Allstate finally went to the Metro Salvage yard to inspect the 2000 Toyota Celica. The Childress report determines the car can be repaired for $7,792.56 with a clip job of welding the back end of a car found in Oklahoma from Dan’s Salvage yard for $$3,850 and labor of 25 hours. Childress did not go to Oklahoma to inspect the car for the clip job. Childress failed to disclose what is involved in a clip job and any concerns about two VIN numbers, breach of warranty, diminished value and the inability to obtain a car title. Childress determined the fair market value is $15,525 less than a $1,000 of the AMICA estimate. See Exhibit “A” pages 72-76. On August 22, 2003, Plaintiffs arrived at the Enterprise office at 1112 East Division, Arlington, Texas 76011-7338, (817) 265-5424. Plaintiffs were informed that Allstate had cancelled the rental car. Joe Krocker was left to attend the University of Arlington without transportation. Plaintiffs contend Sherry Strunk’s individual tortuous decision to cancel the rental car was a breach of contract, breach of fiduciary duty, and bad faith. Plaintiff relied on the fraudulent misrepresentations and omissions made by Sherry Strunk and Allstate. Plaintiffs’ claims are made for conversion and also under the Deceptive Trade Practices and Consumer Protection Act Sections 17.50(a)(1) Laundry List (Sections 17.46(b)(5), (7), (12), (21) and (23)), breach of express and implied warranties. Allstate and Strunk have breached their common law implied warranty of performing their services in a good and workmanlike manner. Allstate and Strunk’s conduct was also an unconscionable action or course of action against Plaintiffs as that term is defined in Sections 17.45(5)(A) and (B) since Allstate and Strunk took advantage of Plaintiff to a grossly unfair degree and such transaction resulted in a gross disparity between the value received and consideration paid by Plaintiffs. Allstate and Strunk have not only violated the DTPA but also the Tex. Ins. Code Art. 21.21. INDIVIDUAL LIABILITY OF STRUNK Plaintiffs are pursuing Strunk individually for her tortuous conduct of canceling the rental car. When a manager behind the veil actively participated in the act leading to liability, there is no need to use piercing and indeed there are relatively few cases involving torts within close corporations. Recent statutes and judicial decisions have extended direct liability further in the direction of vicarious liability by imposing on managers a duty to supervise or monitor. Examples of such liability can be found in a torts context where an officer with a duty to supervise has been held liable for a corporation's copyright infringement even though the officer was without direct knowledge. These results demonstrate some parallel to the responsible corporate officer doctrine in criminal law under which a corporate agent vested with responsibility to devise compliance measures can be convicted upon the corporation's failure to comply with a statute. Under the current case law, the result of individual liability is produced by direct liability for tort, criminal, or regulatory actions. As a service provider, Strunk and Allstate are liable to consumers for misrepresentations under the DTPA since Defendants misrepresented that the service provided was of a particular standard, quality or grade than it really was under 2 Fat Guys Investment Inc. v. Klaver, 928 S.W.2d 268 (TX. App.-San Antonio 1996). After receiving eight demand letters for breach of contract, DTPA and violations of Tex. Ins. Code Art. 21.21 requesting in writing that Allstate accept liability, xxxx xxxx sent a letter stating that “we have accepted liability at 100%.” See Exhibit “A” page 51. Plaintiffs have sent Defendants nine demand letters. Neither xxxx or xxxx are accepting their certified letters. They obviously feel they are untouchable and above the law. CALCULATION OF FAIR MARKET VALUE On September 12, 2003, Dan Krocker was informed by Celist Land at Allstate, that their estimate of the fair market value had gone down from $15,525.00 to $15,188.50. I informed her that no one could replace the car for $15,525.00 and that my clients wanted the car replaced. The AMICA estimate of fair market value was $16,541.70. See Exhibit “A” page *. I suggested that instead of going to court with experts testifying on the fair market value, Allstate should replace the car. Allstate had previously suggested buying half a car from Dan’s Salvage and clipping it together. Allstate could just as easily buy a whole car. Celist informed me that Allstate would not replace the car despite the language in the policy and despite the fact that the replacement would stop any argument of fair market value. Apparently, Celist preferred to go to court. Within minutes of the parties agreement to disagree, Celist notified me that the rental car would be cancelled effective Monday, September 15, 2003 and Joseph Krocker could learn to walk to school in Arlington. Allstate has done all they could to prevent Joseph Krocker from attending UT Arlington. As a result of the negligent conduct of defendants, plaintiff suffered liquidated damages to his vehicle since the vehicle has been totaled by both Plaintiff’s insurance company, AMICA and Murray’s insurance company, Allstate. The plaintiffs are entitled to recover their actual damages which is the fair market value of the vehicle which is mostly clearly evidenced by the replacement of the vehicle and attorney's fees from both defendants, and is entitled to recover awards of punitive damages separately against each defendant. Allstate refused to meet the Plaintiff’s estimate of fair market value or AMICA’s estimate of fair market value or replace the vehicle. PUNITIVE DAMAGES Defendants' acts and omissions demonstrated a willful, wanton, malicious and utter disregard for the rights, well being and best interests of plaintiffs, entitling plaintiffs to an award of punitive damages. WHEREFORE, plaintiffs demand judgment against defendants. jointly and severally for actual damages in an amount that is fair and reasonable and for their attorney's fees, and separately and individually for punitive damages in amounts that are fair and reasonable, and for such other relief as the Court deems just and equitable. WHEREFORE, plaintiff requests that defendant be cited to appear and answer, and that on final trial plaintiff have: 1. Judgment against defendant for the fair market value of the 2000 Toyota Celica or the replacement of the 2000 Toyota Celica with prejudgment interest as provided by law, 2. Plaintiff's actual damages and punitive damages, pursuant to either or a combination the common law doctrines and statutory penalties for fraud, misrepresentation and deceit; constructive fraud; negligence; and punitive damages under the Texas Deceptive Trade Practices Act and the Texas Insurance Code;; 3. Storage and rental costs for a replacement car for the period from the date of collision until settlement; 4. Interest after judgment at the legal rate until paid, 5. Statutory damages under DTPA, 6. Statutory damages under Tex. Ins. Code Art. 21.21, 7. Costs of suit, 8. Punitive damages, 9. Attorneys’ fees, 10. Such other and further relief to which plaintiffs may be justly entitled. . Respectfully submitted, Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 Attorney for Plaintiff Jan Krocker and Joseph Krocker NO. JAN KROCKER AND § IN THE COUNTY COURT JOSEPH KROCKER § AT LAW NO. PLAINTIFFS § HARRIS COUNTY, VS. § TEXAS, xxxx A. xxxx, xxxx x xxxx AKA xxxx xxxx, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY § DEFENDANTS § AFFIDAVIT STATE OF TEXAS § COUNTY OF HARRIS § BEFORE ME, the undersigned, a Notary Public for the State of Texas, on this day, personally appeared DAN KROCKER, known to me to be the person whose name is subscribed to this Affidavit and who, after being duly sworn and put upon his oath, did testify as follows: "My name is DAN KROCKER; I am over 18 years of age, and my residential address is in Harris County, Texas. I have never been convicted of a crime, and I am fully competent to make this affidavit. I have personal knowledge of the facts stated herein, and they are all just, true and correct. My personal knowledge is derived from personal participation, involvement and witnessing the facts described in this affidavit and/or from a review of records kept in the ordinary course of business by one with personal knowledge of the facts contained herein made at or reasonably soon after the occurrence of the facts contained therein. I was retained by the Plaintiffs to represent them in negotiation and litigation with Allstate. " 1. "It was necessary for JAN KROCKER AND JOSEPH KROCKER to retain the services of Dan Krocker, Attorney at Law, to pursue litigation for the replacement of the 2000 Toyota Celica or the fair market value of the car." 2. "As a part of my duties, I am the custodian of the Plaintiff's business records which includes the claims which are the subject of this suit. In the course of my employment, I have become familiar with this particular loan and with the manner and method in which Plaintiff maintains its books and records in the normal course of its business. Plaintiff keeps these books and records in the regular course of its business. It is the regular course of business of Plaintiff for an employee with personal knowledge of each transaction or event to make a records of the transaction or event. These books and records are maintained by employees and agents of Plaintiff whose duty it is to maintain books and records accurately and completely; and, they are made at or near the time of the event in question." 3. "Exhibit "A" contains true and correct copies of the original documents. Exhibit "A" has been maintained in the regular course of business by the Plaintiff and it was the regular course of business of the Plaintiff with personal knowledge of these documents and the information contained therein to record them in the records of the Plaintiff or to transmit information thereof to be included in the records of the Plaintiff. These records of the Plaintiff were made at or near the time of the acts, events and conditions therein recorded or reasonably soon thereafter." DAN KROCKER Before me, the undersigned notary public, on this day personally appeared Dan Krocker, who after being duly sworn, stated under oath, that he is the attorney for Plaintiffs, Jan Krocker and Joseph Krocker in this action; that he has read the above and foregoing instrument and that every statement contained therein is within his personal knowledge and is true and correct. Notary Public in and for the State of Texas Print name of Notary Public My commission expires on: EXHIBIT "A" Demand ltr 8/20/03, request for FMV calculation 1 Demand Ltr 8/22/03, TDPA and bad faith 3 Demand Ltr 8/27/03, two law review articles on bad faith 6 Demand Ltr 8/28/03, notice of lack of response to inspect vehicle 7 Demand Ltr 8/30/03, notice to state legislators 9 Demand Ltr 8/30/03, refusal to clip or use aftermarket parts 14 Demand ltr 9/4/03, Request for Agent for Service 38 Demand Ltr 9/6/03, Diminished Value Calculation 40 Ltr 9/9/03 from Atty General, Greg Abbott, on Allstate’s Illegal Activities 46 Demand ltr 9/9/03 on Allstate’s Illegal activities to Office of Public Ins. Counsel 48 Allstate Ltr 9/8/03 accepting liability 51 Auto trader list of options available on 2000 Toyota Celica 52 Auto trader Comparable Values 54 Texas Administrative Code Notice Requirement 58 Exxon Summary of Maintenance Records 60 60,000 mile warranty work 63 AMICA letter 8/5/03 on rental car and appraisal 66 AMICA letter 8/13/03 on Allstate accepting liability 67 AMICA’s First Appraisal Claims Service 8/5/03 68 Allstate 8/19/03 Appraisal by Danny Childress 72 AMICA’s calculation of FMV from NADA Guide 77 AMICA’s calculation of FMV from Auto Trader 78 Witness Report from Walter Weathers III 80 Police Report 81 Demand Ltr 09/13/03 to TDMV 84 Los Angeles Times Article on Clipping 05/13/99 86 AMICA’s copy of NADA book on Vehicle 88 Allstate Ltr 8/6/03 92 Allstate Ltr 8/11/03 94 Gary O’Brian’s Expert Report 95 H.B. No. 120, Effective 9/1/03 96 CBS Evening News on Allstate’s Illegal Activities 12/27/02 98 Article on Clipping 02/18/93 102 Consumer Reports on Aftermarket Parts 105 NO. JAN KROCKER AND § IN THE COUNTY COURT JOSEPH KROCKER § AT LAW NO. PLAINTIFFS § HARRIS COUNTY, VS. § TEXAS, xxxx A. xxxx, xxxx x xxxx AKA xxxx xxxx, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY § DEFENDANTS § PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS TO: Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, through its registered agent C.T. Corp. 350 North St. Paul St., Dallas, Texas 75201. Pursuant to Rule 198 of the Texas Rules of Civil Procedure, Plaintiff, JAN KROCKER requests that 50 days after the date of receipt of this request that you deliver or cause to be delivered to the undersigned a sworn statement, either denying specifically the facts hereinafter attached, or setting forth in detail the reasons why you cannot truthfully either admit or deny those facts. Each of the facts hereinafter listed shall be deemed admitted, unless you make and deliver or cause to be delivered a sworn statement in response as provided in Rule 198. When answering these Requests for Admissions, you are requested to refer to the "Definitions and Instructions" attached hereto and made a part hereof. Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 Definitions and Instructions A. If Defendant claims any privilege or immunity concerning any of these request for admissions, Defendant shall state its claim in detail and provide all information that is relevant to an evaluation by the Court of the claim of privilege or immunity. The information shall be sufficient to allow presentation of the claim to the Court and to allow Plaintiff to contest the claim and to urge any waiver of the privilege. The information shall also include, without limitation, the identity of all documents and of all oral statements and communications relating to the claim or its waiver. B. The singular and masculine form of any noun or pronoun includes the plural, the feminine, and the neuter. C. The terms "you," "your," or "Defendant" mean the Defendant separately answering these interrogatories, his affiliates and their parent(s), merged, consolidated, or acquired predecessors, divisions, subsidiaries, and affiliates, wholly or partially owned or controlled, including present and former officers, directors, agents, employees, and all other persons acting or purporting to act on behalf of the Defendant or their affiliates or predecessors, subsidiaries and affiliates. These words also include all agents, employees, representatives, attorneys and all other persons acting on Defendant's behalf. D. The term "Document" means each of the following that is in the possession, custody, or control of the defendant or that can be obtained by the defendant through the exercise of a superior right to compel production from a third party: the original and each non-identical copy (whether different from the original by virtue of notes made or otherwise) and, if the original is not in existence or subject to your control, each non-identical copy, regardless of origin or location, of any handwritten, typewritten, printed, recorded, transcribed, punched, taped, photocopied, photostatic, faxed, telecopied, filmed, microfilmed, or otherwise prepared matter, including without limitation any papers, books, accounts, drawings, graphs, charts, photographs, phono-records, plans, blueprints, telexes, telegrams, electronic or videotaped or mechanical recordings, magnetic impulses, and any other data compilation from which information can be obtained or translated into reasonably usable form. E. The term “Aftermarket Parts” refers to non-Original Equipment Manufacturer ("non-OEM") or crash parts or imitation parts. For purposes of this discovery and the petition, OEM parts are those parts made by the original automobile manufacturers or suppliers; non-OEM parts are made by outside companies without access to the design specifications of the OEM parts. Aftermarket parts are made for repair shops, hardware stores and auto retailers and not shipped directly from auto manufacturers. F. The term “Crash parts" are described as vehicle components typically repaired or replaced as a result of crash damage rather than normal use. They are primarily sheet metal and plastic parts attached to the outer shell of the vehicle. The types of "crash parts" at issue included fenders, hoods, doors, quarter panels, tailgates, grills, headlight and taillight mounting panels, brackets, moldings, and bumpers. REQUEST FOR ADMISSION NO. 1: The following documents attached as Exhibit “A” to Plaintiff’s Original Petition are genuine and admissible in this proceeding without objection as to authenticity: Exhibit "A" : Demand ltr 8/20/03, request for FMV calculation 1 Demand Ltr 8/22/03, TDPA and bad faith 3 Demand Ltr 8/27/03, two law review articles on bad faith 6 Demand Ltr 8/28/03, notice of lack of response to inspect vehicle 7 Demand Ltr 8/30/03, notice to state legislators 9 Demand Ltr 8/30/03, refusal to clip or use aftermarket parts 14 Demand ltr 9/4/03, Request for Agent for Service 38 Demand Ltr 9/6/03, Diminished Value Calculation 40 Demand ltr 9/9/03 on Allstate’s Illegal activities to Office of Public Ins. Counsel 48 Allstate Ltr 9/8/03 accepting liability 51 Allstate 8/19/03 Appraisal by Danny Childress 72 Police Report 81 Demand Ltr 09/13/03 to TDMV 84 Allstate Ltr 8/6/03 92 Allstate Ltr 8/11/03 94 RESPONSE: REQUEST FOR ADMISSION NO.2: On or about August 2, 2003, plaintiff was operating his 2000 Toyota Celica at the intersection of Greenbriar and the south feeder road of U.S. Highway 59, the Southwest Freeway, heading eastbound on the feeder road at 5-10 mph when Murray’s 1995 Toyota Celica ran a red light. RESPONSE: REQUEST FOR ADMISSION NO. 3: Joseph Krocker’s Celica hit the passenger door of the 1995 Celica. RESPONSE: REQUEST FOR ADMISSION NO. 4: Murray was reading a map and failed to stop at the red light at the intersection of the south feeder road and Greenbriar. RESPONSE: REQUEST FOR ADMISSION NO. 5: Murray was doing 35 mph through the intersection. Murray received traffic tickets for failure to stop and the red light. RESPONSE: REQUEST FOR ADMISSION NO. 6: The police report attached as Exhibit “A” page 81 to Plaintiff’s petition and a true and correct depiction of the events of the accident. RESPONSE: REQUEST FOR ADMISSION NO. 7: The witness statement from Walter Weathers III which is attached to Plaintiff’s Petition as Exhibit “A” page 80 is a true and correct depiction of the events of the accident. RESPONSE: REQUEST FOR ADMISSION NO. 8: Plaintiff’s insurance company is AMICA. RESPONSE: REQUEST FOR ADMISSION NO. 9: Murray’s insurance company is Allstate RESPONSE: REQUEST FOR ADMISSION NO. 10: Defendants have received demand letters dated 8/20/03, 8/22/03, 8/27/03, 8/28/03, 8/30/03, 9/4/03, 9/6/03, 9/9/03 for breach of contract, DTPA violations and bad faith claims under Tex. Ins. Code Art. 21.21. RESPONSE: REQUEST FOR ADMISSION NO. 11: Murray selected an inexpensive policy which does not cover handling claims in an ethical or moral manner. RESPONSE: REQUEST FOR ADMISSION NO. 12: Allstate has publicly stated that their premiums would be double if they had to follow the law in the state of Texas in which the insured or third party claimant selects the body shop or repair shop, if aftermarket parts can’t be used and if clipping is not allowed. RESPONSE: REQUEST FOR ADMISSION NO. 13: On August 5, 2003, AMICA issued their appraisal report from First Appraisal Claims Service, G. Hagerud. RESPONSE: REQUEST FOR ADMISSION NO. 14: The AMICA report showed the 2000 Toyota Celica was totaled since it had a value of $16,541.70 and the estimate for repair was $9,959.61. RESPONSE: REQUEST FOR ADMISSION NO. 15: On August 19, 2003, Allstate’s appraiser, Danny Childress finally inspected the 2000 Toyota Celica and found it could be repaired with aftermarket parts and clipping onto the front half a Celica found in Oklahoma from Dan’s Salvage for $$3,850.00 plus 25 hours labor. RESPONSE: REQUEST FOR ADMISSION NO. 16: As used in Danny Childress’ appraisal, a clip job means something very specific: welding the front or back half of a junkyard car onto your vehicle after it has sustained major damage in a crash RESPONSE: REQUEST FOR ADMISSION NO. 17: A rear clip is generally an easier and less risky job to perform than a front clip. RESPONSE: REQUEST FOR ADMISSION NO. 18: In a rear clip job, the body shop attaches the entire rear half of a car, including the rear quarter-panels, the trunk lid, a section of a floor pan, the rear suspension system and possibly the entire roof. RESPONSE: REQUEST FOR ADMISSION NO. 19: The body shop attaches the entire rear half of a car, including the rear quarter-panels, the trunk lid, a section of a floor pan, the rear suspension system and possibly the entire roof. RESPONSE: REQUEST FOR ADMISSION NO. 20: A front clip job involves making critical engine, transmission, braking and fuel system linkages. RESPONSE: REQUEST FOR ADMISSION NO. 21: Clip jobs have such poor reputations that some insurance companies refuse to permit them, though other insurers encourage body shops to perform them as a way to hold down costs. RESPONSE: REQUEST FOR ADMISSION NO. 22: Allstate is aware that the Automobile Club of Southern California will not touch a front-end clip. RESPONSE: REQUEST FOR ADMISSION NO. 23: Auto makers generally specify that vehicle unibodies must be aligned to within no more than one-sixteenth of an inch in all dimensions. RESPONSE: REQUEST FOR ADMISSION NO. 24: Without proper jigs and tools, your shop might never get your vehicle aligned properly after a clip job, and it could end up a "dog walker"--traveling sideways a bit. RESPONSE: REQUEST FOR ADMISSION NO. 25: On August 19, 2003, Sherry Strunk informed Dan Krocker that the 2000 Toyota Celica had to be moved at his expense out of Metro Salvage Yard to a body shop of his choice in order to get a rental car during the period that Allstate could further examine the car after it had been taken apart for examination. RESPONSE: REQUEST FOR ADMISSION NO. 26: During this telephone conversation, Dan Krocker informed Sherry Strunk that the car would be towed to Freedom Paint and Body on N. Shepherd. RESPONSE: REQUEST FOR ADMISSION NO. 27: On August 19, 2003, the car was towed to Freedom Paint and Body. RESPONSE: REQUEST FOR ADMISSION NO. 28: Dan Krocker called Sherry Strunk in the afternoon of August 19, 2003 and informed her that the car was available for inspection at Freedom Paint & Body. RESPONSE: REQUEST FOR ADMISSION NO. 29: By Monday, Hank at Freedom had the car taken apart and called Allstate three times for them to send someone out to look at the wreck. RESPONSE: REQUEST FOR ADMISSION NO. 30: Allstate refused to send anyone until they had received another demand letter from Dan Krocker. RESPONSE: REQUEST FOR ADMISSION NO. 31: Plaintiff found a repair person, Gary O’Brian who reviewed the prospects for clipping and found the labor would be about 75 hours. The Allstate estimate failed to disclose diminished value, problems with title, problems with two VIN numbers, and safety issues. Such lack of disclosures violated the TDTPA and Tex. Ins. Code Art 21.21. RESPONSE: REQUEST FOR ADMISSION NO. 32: Allstate violated the recent amendments to Art. 21.56A of the Tex. Ins. Code by: 1. failing to respond within the 15 day period 2. failing to admit liability 3. failing to provide a timely appraisal 4. Appraises the property damage to the motor vehicle in an amount insufficient to repair that damage without a reasonable basis for the amount of the appraisal. RESPONSE: REQUEST FOR ADMISSION NO. 33: As evidenced by the CBS news report on Allstate, Allstate’s excuse is they could not financially operate in an environment which would require them to (I) disclose the use of aftermarket parts, (ii) fully disclose the implications of clipping and (iii) letting the insured or third party claimant select the body shop. RESPONSE: REQUEST FOR ADMISSION NO. 34: On August 20, 2003, Plaintiffs sent the defendants a demand letter pertaining to their calculation of the fair market value of the 2000 Toyota Celica, the name and address for the registered agent for Allstate and written confirmation that Allstate was accepting liability. Allstate refused to provide information pertaining to its registered agent. RESPONSE: REQUEST FOR ADMISSION NO. 35: Plaintiffs had to contact the Texas Department of Insurance to determine the name and address of the Registered Agent for Allstate. RESPONSE: REQUEST FOR ADMISSION NO. 36: Allstate has no fair estimate of repairs or fair market value when they hide behind the ability of the consumer to find Allstate’s registered agent. RESPONSE: REQUEST FOR ADMISSION NO. 37: Allstate figures for the estimate to repair the vehicle is approximately $3,000 below the estimate from AMICA. AMICA considers the vehicle totaled. RESPONSE: REQUEST FOR ADMISSION NO. 38: On or about August 20, 2003, the Plaintiffs provided written notice of the location of the 2000 Toyota Celica at Freedom Paint and Body Shop. RESPONSE: REQUEST FOR ADMISSION NO. 39: The Allstate tentative figure for the value of the vehicle understated by more than $1,000 from the AMICA valuation. RESPONSE: REQUEST FOR ADMISSION NO. 40: On or about August 30, 2003, Plaintiffs sent an additional demand letter pertaining to Allstate’s use of aftermarket parts. RESPONSE: REQUEST FOR ADMISSION NO. 41: The Plaintiff never received a complete set of the form letter from Allstate pertaining to their estimate using aftermarket parts. Plaintiff requested complete copy of the letter and Allstate has refused to provide a complete copy of the letter. Plaintiff received pages 1-3 which ends with “all sheet metal components should.” RESPONSE: REQUEST FOR ADMISSION NO. 42: The Plaintiffs informed defendants that they are not interested in any imitation parts. RESPONSE: REQUEST FOR ADMISSION NO. 43: When you compare the AMICA assessment to the Allstate assessment, Allstate seems to be suggesting locating a Celica, sight unseen from Dan’s Salvage from Oklahoma with back end damage and welding the two halves together. RESPONSE: REQUEST FOR ADMISSION NO. 44: The costs of new chaises of $600 per side will equal the difference between the AMICA and Allstate assessments. RESPONSE: REQUEST FOR ADMISSION NO. 45: By August 30, 2003, Allstate had still not gone out to Freedom Paint and Body Shop to re-evaluate the problems in their report even though Plaintiff had to arrange for a wrecker based upon Allstate’s representation that the vehicle had to be moved to a shop of Plaintiff’s choice for further examination. RESPONSE: REQUEST FOR ADMISSION NO. 46: The AMICA estimate does not use aftermarket parts and clip two cars together. RESPONSE: REQUEST FOR ADMISSION NO. 47: The AMICA report assumes the insured will select the body shop. RESPONSE: REQUEST FOR ADMISSION NO. 48: The Allstate report dictates an illegal, highly risky clip job in which the only body shops that do this kind of work have specialized equipment and are on Allstate’s list of “approved” body shops. RESPONSE: REQUEST FOR ADMISSION NO. 49: Allstate gets around the 1991 amendments to Tex. Ins. Code Art. 21.21. by dictating repairs that are unsafe. RESPONSE: REQUEST FOR ADMISSION NO. 50: Allstate’s website provides the following reason for buying automotive insurance: Provides for the repair or replacement of your vehicle up to the Actual Cash Value of the vehicle. Auto Insurance can help safeguard your investment in your automobile. These are false deceptive statements. RESPONSE: REQUEST FOR ADMISSION NO. 51: Most automobile policies in Texas limit liability to : “Our limit of liability for loss will be the lesser of the : 1. Actual cash value of the stolen or damaged property; 2. Amount necessary to repair or replace the property with other of like kind and quality; or 3. Amount stated in the Declarations of this policy.” RESPONSE: REQUEST FOR ADMISSION NO. 52: Allstate refuses to disclose the name and address of its registered agent. RESPONSE: REQUEST FOR ADMISSION NO. 53: Allstate refused to provide a copy of the Murray policy. RESPONSE: REQUEST FOR ADMISSION NO. 54: Plaintiff has requested on numerous occasions a copy of the insurance policy in which Murray is the insured pertaining to this accident. RESPONSE: REQUEST FOR ADMISSION NO. 55: Plaintiff has previously requested a copy of the current guidelines that Allstate adjusters follow when writing estimates for replacement parts which Allstate refuses to provide. RESPONSE: REQUEST FOR ADMISSION NO. 56: Allstate’s communications predominately are in response to the Texas Department of Insurance’s investigation into the illegal practices of Allstate with regard to this litigation. RESPONSE: REQUEST FOR ADMISSION NO. 57: Allstate refuses to provide a copy of their guidelines and manuals pertaining to when Original Equipment Manufacturer ("OEM") is suggested and when non-OEM crash parts (“imitation parts”) or salvage OEM parts are suggested by Allstate adjusters. RESPONSE: REQUEST FOR ADMISSION NO. 58: OEM parts are those parts made by the original automobile manufacturers or suppliers; non-OEM parts are made by outside companies without access to the design specifications of the OEM parts. RESPONSE: REQUEST FOR ADMISSION NO. 59: Plaintiffs’ request for documentation and information pertaining to the computer program used by Allstate adjusters to identify repairs the vehicle will require were ignored. RESPONSE: REQUEST FOR ADMISSION NO. 60: Allstate claims estimators are required to utilize a computer system programmed to select the cheapest available non-OEM part certified by the Certified Automotive Parts Association (CAPA), an association formed and largely funded by the insurance industry to regulate and certify aftermarket parts. RESPONSE: REQUEST FOR ADMISSION NO. 61: Allstate adjusters/estimators have no authority to substitute OEM parts in damage estimates when non-OEM parts are cheaper and available. RESPONSE: REQUEST FOR ADMISSION NO. 62: In the event the damaged part was not one that was subject to CAPA certification, the computer program used by Allstate selects and the estimator routinely specifies a noncertified, non-OEM part. RESPONSE: REQUEST FOR ADMISSION NO. 63: Allstate’s estimate does not provide for all the repairs I-CAR recommends. Such repairs include seatbelt safety tests, wheel alignments, adjusting the aim of headlamps, and corrosion protection. RESPONSE: REQUEST FOR ADMISSION NO. 64: The Allstate computer program contains a matrix of all parts that are available and the suppliers who carried those parts. Allstate selects the suppliers and approved the parts that are listed in the computer software. RESPONSE: REQUEST FOR ADMISSION NO. 65: In order to prepare a damage estimate, the claims estimator enters into the computer system the make and model year of the damaged part, and the Allstate computer program identifies the cheapest part without regard for the pre-loss condition of the damaged vehicle. RESPONSE: REQUEST FOR ADMISSION NO. 66: The non-OEM part and its cost would be specified on the damage estimate. The claim is resolved based upon the cost of the non-OEM part. RESPONSE: REQUEST FOR ADMISSION NO. 67: Adjustors and claims estimators are trained in these policies and practices through in-house seminars, which were held at the home office. RESPONSE: REQUEST FOR ADMISSION NO. 68: With regard to Joe Krocker’s vehicle, a comparison between the AMICA estimate and the Allstate estimate, the non-OEM parts which Allstate specified are categorically inferior in terms of fit, function, performance, durability, corrosion resistance, appearance, and safety. RESPONSE: REQUEST FOR ADMISSION NO. 69: Allstate knowingly conceals information about the inferior condition of the non-OEM parts it was specifying on damage estimates and misrepresents the quality and condition of those parts to its policyholders RESPONSE: REQUEST FOR ADMISSION NO. 70: Allstate’s guarantee that it would replace non-OEM parts at no cost to the unsatisfied policyholders upon demand is bogus. If the aftermarket part is warranted by the part manufacturer, the policyholder is required to contact the manufacturer for relief. In most cases, these part manufacturers were located outside the United States in Taiwan or another country. If the policyholder demands replacement of the non-OEM part, an Allstate adjustor is required to investigate the claim, and if it is approved, an OEM replacement part is installed but the cost was charged to the policyholder as an indemnity payment. RESPONSE: REQUEST FOR ADMISSION NO. 71: Allstate is not be able to identify any state that authorizes an insurer to specify inferior replacement parts. RESPONSE: REQUEST FOR ADMISSION NO. 72: Allstate can not demonstrate that its conduct is authorized by any other state's laws nor that it is in compliance with the substantive laws of Texas. RESPONSE: REQUEST FOR ADMISSION NO. 73: Considering the form letter Plaintiffs received, there is substantial evidence that the deceptive practices were devised, implemented, and carried out from Allstate’s home office. RESPONSE: REQUEST FOR ADMISSION NO. 74: An omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. RESPONSE: REQUEST FOR ADMISSION NO. 75: There is sufficient evidence that the non-OEM parts which Allstate specified were categorically inferior, that Allstate specified non-OEM parts that it knew to be inferior, that Allstate does not inform its policyholders that the non-OEM parts it specifies are inferior, and that Allstate knowingly represents on its estimates, in its correspondence and through its estimators that these non-OEM parts were of equal quality or better than OEM parts. RESPONSE: REQUEST FOR ADMISSION NO. 76: There is evidence that Allstate’s material misrepresentations led numerous claimants to blindly accept the non-OEM parts specified (i.e., without knowledge of the inferior condition of those parts). RESPONSE: REQUEST FOR ADMISSION NO. 77: There is overwhelming evidence of Allstate’s calculated deception of its policyholders in a deliberate disregard of its express written promises contained in the policies issued. RESPONSE: REQUEST FOR ADMISSION NO. 78: The deceit is deliberate and universally employed for the purpose of obtaining unearned, illegitimate monetary gain. This was an ill-gotten gain, acquired at the expense of persons that trusted and relied upon Allstate for honest, fair treatment. RESPONSE: REQUEST FOR ADMISSION NO. 79: Manufacturers of imitation parts have been involved in civil litigation in which they concede they have mislead the public on the quality. RESPONSE: REQUEST FOR ADMISSION NO. 80: A leading supplier to Allstate of inferior aftermarket parts, Keystone Automotive Industries has conceded that it was not a manufacturer and did not have a general program of quality control Keystone Automotive Industries Inc., the leader in so-called aftermarket vehicle collision parts sells non-brand-name bumpers, grilles, lights, wheels and paint to about half of the nation's 53,000 auto body shops. RESPONSE: REQUEST FOR ADMISSION NO. 81: Courts have found that Allstate’s and Keystone’s claims regarding its manufacturing facilities and its quality control program were false claims, and were deliberately made with the intention of misleading the public as to the nature of its business and the manner in which it operated. RESPONSE: REQUEST FOR ADMISSION NO. 82: As to quality, Allstate and Keystone fraudulently claim that the parts it sold are exact duplicates of original equipment manufacturer (OEM) parts in fit, finish, weight and overall quality or met or exceeded OEM specifications or were of like kind and quality to OEM parts during the above-stated period. RESPONSE: REQUEST FOR ADMISSION NO. 83: Courts have determined that the claims made by Allstate and Keystone pertaining to aftermarket parts are, in fact, false and are made with the deliberate intention of misleading the public as to the characteristics of the parts it sold. RESPONSE: REQUEST FOR ADMISSION NO. 84: Allstate failed to inform Plaintiffs of the problem with regard to clipping the vehicles since the vehicle will have two different VIN numbers based upon the two halves of the car. RESPONSE: REQUEST FOR ADMISSION NO. 85: The proposed clip job would result in actually two halves from each of two separate Toyota Celicas, which had been welded together onto a single frame. RESPONSE: REQUEST FOR ADMISSION NO. 86: The vehicle identification number would relate only to the back half of the vehicle; the vehicle identification number and the mileage and history of the front half from a salvage yard in Oklahoma may remain undisclosed RESPONSE: REQUEST FOR ADMISSION NO. 87: Often times, Allstate or its agents will remove the VIN number from the Oklahoma wreck. RESPONSE: REQUEST FOR ADMISSION NO. 88: Plaintiffs could not find a body shop that does these kind of clip jobs. RESPONSE: REQUEST FOR ADMISSION NO. 89: The Allstate adjuster, Lonnie Matthews offered to provide a list of approved Allstate body shops who do clip jobs which is Allstate’s way of getting around the 1991 amendments to Tex. Ins. Code Art. 21.21. RESPONSE: REQUEST FOR ADMISSION NO. 90: Allstate initially failed to inform the Plaintiffs that the car title will reflect the car was totaled therefore diminishing the value. RESPONSE: REQUEST FOR ADMISSION NO. 91: Once Plaintiffs contacted the Attorney General for the state of Texas, the Department of Insurance and various state legislatures concerning Allstate’s illegal activities of not fully disclosing the use of aftermarket parts, clipping cars and the diminished value, Allstate changed their tune and conceded the car was totaled in hopes of preventing an investigation into their illegal activity. RESPONSE: REQUEST FOR ADMISSION NO. 92: Pursuant to Rule 404(b), the scheme and intent to sucker the Plaintiffs into a clip job with aftermarket parts and then a switch to concluding the car was totaled is a bait and switch tactic in which the Plaintiffs are suckered into thinking how grateful they should be to go from a repair estimate of $7,792.56 to a fair market value on a totaled car of $15,188.00. RESPONSE: REQUEST FOR ADMISSION NO. 93: Allstate’s devious plan doesn’t work because they have too many employees in the sales program to sucker the consumer. RESPONSE: REQUEST FOR ADMISSION NO. 94: Neither Prescilla Jones nor Celist Land realized that when they mentioned a fair market value of $15,188.00 that Danny Childress had previously determined a month earlier that the fair market value was $15,525 which was still $1,000 less than the AMICA calculation. RESPONSE: REQUEST FOR ADMISSION NO. 95: To add to the consumers’ anxiety and financial problems, Allstate cancels the rental car. RESPONSE: REQUEST FOR ADMISSION NO. 96: Allstate’s repair appraisal failed to inform Plaintiff’s of the diminished value. RESPONSE: REQUEST FOR ADMISSION NO. 97: At no time did Allstate disclose that the clip job would cancel the Plaintiff’s extended warranty. RESPONSE: REQUEST FOR ADMISSION NO. 98: At no time did Allstate offer to compensate the Plaintiff’s on their extended warranty. RESPONSE: REQUEST FOR ADMISSION NO. 99: The Allstate estimate of repairs and estimate of fair market value ignored the cancelled extended warranty. RESPONSE: REQUEST FOR ADMISSION NO. 100: At no time did Allstate disclose that the proposed clip job would not pass the annual inspection as required in the state of Texas. RESPONSE: REQUEST FOR ADMISSION NO. 101: Allstate attempts to minimize any "paper trail" evidencing the wreck/reconstruction history or the mileage discrepancy in these clip jobs by hoodwinking the insured about the proposed repair work. RESPONSE: REQUEST FOR ADMISSION NO. 102: Most vehicle owners know little about the specifics of a vehicle repair. The vehicle owner’s interest will arouse after a vehicle accident. It is at the point of repair that the vehicle owner should be informed of the types of crash part(s), i.e. aftermarket, original equipment manufactured, recycled, etc., to be used in the repair and the safety concerns about clip jobs. RESPONSE: REQUEST FOR ADMISSION NO. 103: Plaintiffs did not understand Allstate was proposing a clip job until Hank at Freedom Paint and Body disclosed that he did not do clip jobs. RESPONSE: REQUEST FOR ADMISSION NO. 104: You have to carefully read the Allstate repair estimate to understand that they are proposing to purchase a clipped car for under $4,000 and weld it onto Joseph Krocker’s car in a Barnum Bailey style. RESPONSE: REQUEST FOR ADMISSION NO. 105: During a later collision, it is probable that the welds will break and the car will end up going in two directions. RESPONSE: REQUEST FOR ADMISSION NO. 106: Despite the numerous indications of wreck damage, despite the strong reputation within the industry for vehicles sold at wholesale auctions to have greatly increased likelihood of having wreck damage, and despite many other factors known in the industry that raised questions about the vehicle, Allstate has a scheme and intention to flood the Texas used car market with undisclosed wrecks that have been subject to clip jobs. RESPONSE: REQUEST FOR ADMISSION NO. 107: The extreme wreck damage and proposed grossly improper reconstruction of the 2000 Toyota Celica would result in the car being extremely dangerous to drive and a safety hazard to both its passengers and others in its vicinity, and to have recurring mechanical and structural problems and innumerable other defects of all kinds. RESPONSE: REQUEST FOR ADMISSION NO. 108: Allstate knew or should have known that their knowledge of the implications of the proposed reconstruction of the wrecked vehicle and the proposed clip job and proposed dual-vehicle history and of the many defects; was superior to that of the plaintiffs, and such knowledge was not within the fair and reasonable reach of the plaintiffs. RESPONSE: REQUEST FOR ADMISSION NO. 109: Allstate knew or should have known that their knowledge of the implications of the proposed reconstruction of the wrecked vehicle and the proposed clip job and proposed dual-vehicle history and of the many defects; was superior to that of the plaintiffs, and such knowledge was not within the fair and reasonable reach of the plaintiffs. RESPONSE: REQUEST FOR ADMISSION NO. 110: The actions and omissions of defendants as alleged constituted civil conspiracy and fraudulent misrepresentation and concealment. Plaintiff suffered damages proximately caused by the conduct of Defendants as alleged. RESPONSE: REQUEST FOR ADMISSION NO. 111: The conduct of Defendants as alleged in addition and in the alternative constituted separate negligent misrepresentations that were false because of their failure to exercise reasonable care or competence in obtaining or communicating the information, including but not limited to misrepresentations about the fraudulent representations of the proposed repair estimate, the clip job and the calculation of fair market value and diminished value. RESPONSE: REQUEST FOR ADMISSION NO. 112: Defendants supplied this information to Plaintiffs in the conduct of its business of clipping cars rather than totaling them. As a proximate result of these negligent misrepresentations, the plaintiff suffered damages RESPONSE: REQUEST FOR ADMISSION NO. 113: The conduct of each of the defendants was outrageous by reason of evil motive and/or conscious indifference to or reckless disregard for the safety and rights of the plaintiff and of others, and without just cause or excuse. RESPONSE: REQUEST FOR ADMISSION NO. 114: Allstate is pushing shoddy collision-repair parts, and consumers may not know it. RESPONSE: REQUEST FOR ADMISSION NO. 115: Crash parts are a big business. Each year, U.S. drivers have an estimated 35 million automobile accidents costing some $ 9 billion in crash parts. The most frequently replaced parts are bumpers and fenders. RESPONSE: REQUEST FOR ADMISSION NO. 116: Allstate endorses imitation parts because they can be 20 percent to 65 percent less expensive than OEM. RESPONSE: REQUEST FOR ADMISSION NO. 117: Allstate does not pass the savings from aftermarket parts or clip jobs on to policyholders through lower premiums. RESPONSE: REQUEST FOR ADMISSION NO. 118: Imitation bumpers and fenders that Allstate recommends have been tested by Consumer Reports to be inferior to OEM parts. The bumpers fit badly and gave poor low-speed crash protection. Most of the fenders also fit worse than OEM fenders, and they rusted more quickly when scratched to bare metal. RESPONSE: REQUEST FOR ADMISSION NO. 119: The Interinsurance Exchange of the Automobile Club of Southern California uses only OEM metal body parts. The Interinsurance Exchange of the Automobile Club of Southern California won't use imitation body parts since you get bubbling, paint flaking off, premature rusting. RESPONSE: REQUEST FOR ADMISSION NO. 120: The Consumer Reports lab found that some of the imitation parts recommended by Allstate weren't as strong, were more likely to have problems with cracking and peeling paint, and showed weight differences, indicating a wide variation in quality control. RESPONSE: REQUEST FOR ADMISSION NO. 121: Allstate assisting CAPA in devising a fraudulent scheme pertaining to confusing consumers with regard to their rights in insisting on like kind an quality. CAPA literature represents that CAPA parts are of "like kind and quality" to OEM parts. But CAPA's quality-standards manual requires only "functionally equivalent" parts. Such a careful choice of words is significant: A Saturn may be functionally equivalent to a BMW, but the two are hardly equal. RESPONSE: REQUEST FOR ADMISSION NO. 122: In March, 1998, the Automotive Service Association (ASA), representing more than 12,500 repair shops, withdrew its support of CAPA because "CAPA has failed in its mission" and hasn't assured imitation crash parts that are equal in quality and consistency to OEM. RESPONSE: REQUEST FOR ADMISSION NO. 123: Consumer Reports found that collision repairers doing work for Allstate almost universally complained that too many imitation parts, whether CAPA-certified or not, leave noticeable gaps and don't always match the car's contours. RESPONSE: REQUEST FOR ADMISSION NO. 124: Of 160 repair shops surveyed by Frost & Sullivan, an independent international marketing-consulting firm in Mountain View, Calif., 89 percent said that it takes about two hours longer to install an imitation part, costing $ 60 to $ 90 extra in labor. RESPONSE: REQUEST FOR ADMISSION NO. 125: There may be two reasons for the poor fit of CAPA parts that repair shops complain about. One is "reverse engineering" - where manufacturers make copies of OEM parts. The second problem is that CAPA sheet-metal parts are tested for fit on a jig rather than on a car. RESPONSE: REQUEST FOR ADMISSION NO. 126: The Automotive Service Association says that 33 states require repair shops to disclose the use of imitation parts to consumers. Six others - Arkansas, Indiana, Oregon, Rhode Island, West Virginia, and Wyoming - also require the consumer's written consent But disclosure and consent are meaningless if insurers promise higher quality than they deliver. RESPONSE: REQUEST FOR ADMISSION NO. 127: Allstate breached its contracts with policyholders to restore their vehicles to pre-loss condition by devising and implementing a practice that results in payment of claims based on (1) the systematic specification of "inferior" non-OEM crash parts for repairs and (2) the systematic omission of specific "necessary" repairs from estimates. RESPONSE: REQUEST FOR ADMISSION NO. 128: “Crash parts" are described as vehicle components typically repaired or replaced as a result of crash damage rather than normal use. They are primarily sheet metal and plastic parts attached to the outer shell of the vehicle. The types of "crash parts" at issue included fenders, hoods, doors, quarter panels, tailgates, grills, headlight and taillight mounting panels, brackets, moldings, and bumpers. RESPONSE: REQUEST FOR ADMISSION NO. 129: The laws of the several states range from allowing the use of non-OEM parts in a vehicle if the owner is given notice, to forbidding the use of non-OEM parts as a condition to payment of a claim. RESPONSE: REQUEST FOR ADMISSION NO. 130: Because of the practice of specifying non-OEM parts or equipment for some covered repairs, policyholders' automobiles are not being restored to their pre-loss condition as required by their policies of insurance. RESPONSE: REQUEST FOR ADMISSION NO. 131: Allstate has a nationwide claims practice of uniformly specifying cheaper non-OEM crash parts on damage estimates issued to its policyholders despite the fact that it knew that those parts were inferior in quality and condition and would not return the damaged vehicle to its pre-loss condition. RESPONSE: REQUEST FOR ADMISSION NO. 132: By adopting and employing this claims practice, Allstate is deceiving its policyholders in that it failed to inform them of the inferior quality of specified replacement parts. RESPONSE: REQUEST FOR ADMISSION NO. 133: Allstate is able to succeed in this deception by representing that the inferior parts met high performance criteria and by offering a bogus guarantee to replace unsatisfactory non-OEM parts at no cost to the policyholder. RESPONSE: REQUEST FOR ADMISSION NO. 134: Allstate is in breach of contract, breach of implied duty of good faith, and is unjustly enriched. RESPONSE: REQUEST FOR ADMISSION NO. 135: Allstate’s use of warranty language to convince a claimant to use non-OEM parts is evidence of bad faith under Tex. Ins. Code Art. 21.21 and the TDTPA. RESPONSE: REQUEST FOR ADMISSION NO. 136: Allstate believes they can get around the 1991 Amendments to Article 5.07-1 of the Texas Insurance Code by suggesting repair schemes that only their suggested list of body shops would be willing to do. RESPONSE: REQUEST FOR ADMISSION NO. 137: By September 6, 2003, Plaintiffs sent a demand letter on the diminished value of the 2000 Toyota Celica in which Allstate recommending a clip job. RESPONSE: REQUEST FOR ADMISSION NO. 138: An examination of the Allstate appraisal leaves out any calculation for diminished value. RESPONSE: REQUEST FOR ADMISSION NO. 139: The omission of any estimate for diminished value is evidence of bad faith, a breach of fiduciary duty and a deceptive practice. RESPONSE: REQUEST FOR ADMISSION NO. 140: The actual market value of the vehicle before injury may be considerably less than the cost of repairs plus the loss of market value; or the actual market value may be more than the cost of repairs plus the loss of market value. RESPONSE: REQUEST FOR ADMISSION NO. 141: Allstate refuses to ( I) provide Plaintiffs with a copy of the policy, (ii) disclose its agent for service, (iii) elect to either repair the car or pay for its fair market value, (iv) provide in writing that they accept liability (v) provide in writing whether they are electing to repair the car using the clip method, and cancelled the rental car. RESPONSE: REQUEST FOR ADMISSION NO. 142: Allstate refuses to produce a copy of the policy since it states: the language is contained in the Texas Personal Auto Policy: ''Our limit of liability for loss will be the lesser of the: (1) Actual cash value of the stolen or damaged property; (2) Amount necessary to repair or replace the property with other of like kind and quality; or (3) Amount stated in the Declarations of this policy'' RESPONSE: REQUEST FOR ADMISSION NO. 143: In defining the term ''actual cash value,'' the Texas Supreme Court has said that ''actual cash value for marketable chattels, for which market value can be determined, is market value. When the market value of such property cannot be determined, or it is inadequate, then resort may be had to other factors to determine actual cash value'' RESPONSE: REQUEST FOR ADMISSION NO. 144: There are plenty of 2000 Toyota Celicas on the market. RESPONSE: REQUEST FOR ADMISSION NO. 145: The VIN number identifies the options on the car so neither side should be arguing on what options are involved. RESPONSE: REQUEST FOR ADMISSION NO. 146: Another facet of the ''actual cash value'' measure is the property's scrap or junk value. If the insured retains the damaged property, the ''actual cash value'' of the loss is the diminution in value. RESPONSE: REQUEST FOR ADMISSION NO. 147: Under the ''repair or replace'' limitation on the insurer's liability, recovery cannot exceed the reasonable and necessary cost to restore the property to substantially the same condition as it was in immediately prior to the loss. If the repairs would leave the market value substantially less than the value before the loss, the repair limitation does not apply. RESPONSE: REQUEST FOR ADMISSION NO. 148: Allstate estimate on fair market value is not even close their prior estimate or AMICA’s estimate. Clearly, Allstate is trying to bully an 18 year old boy in his first year of college. RESPONSE: REQUEST FOR ADMISSION NO. 149: Article 21.21 of the Texas Insurance Code gives an insured a private cause of action against its liability insurer for unfair practices in settling third-party claims. Article 21.21 Provides a Private Cause of Action for an Insurer's Unfair Claims Settlement Practices under section a. Recognition of Cause of Action Under Article 21.21. RESPONSE: REQUEST FOR ADMISSION NO. 150: Article 21.21 of the Texas Insurance Code gives an insured a private cause of action against its liability insurer for unfair practices in settling third-party claims. RESPONSE: REQUEST FOR ADMISSION NO. 151: At the time of the accident which is the subject of this suit, Murray failed to keep such lookout as a person of ordinary prudence would have kept under the same or similar circumstances. RESPONSE: REQUEST FOR ADMISSION NO. 152: At the time of the accident which is the subject of this suit, Murray failed to apply the brakes to her vehicle in a timely manner to avoid the collision in question. RESPONSE: REQUEST FOR ADMISSION NO. 153 At the time of the accident which is the subject of this suit, Murray failed to apply the brakes to her vehicle to avoid the collision in question. RESPONSE: REQUEST FOR ADMISSION NO. 154 At the time of the accident which is the subject of this suit, Murray failed to stop, yield, and grant the privilege of immediate use of the intersection to plaintiff's vehicle. RESPONSE: REQUEST FOR ADMISSION NO. 155: At the time that Murray ran the red light she was reading a map. RESPONSE: REQUEST FOR ADMISSION NO. 156: At the time of the accident which is the subject of this suit, Murray failed to keep a proper look out. RESPONSE: REQUEST FOR ADMISSION NO. 157: At the time of the accident which is the subject of this suit, Murray failed to stop, yield, and grant the privilege of immediate use of the intersection in obedience to a traffic signal erected by public authority. RESPONSE: REQUEST FOR ADMISSION NO. 158: At the time of the accident which is the subject of this suit, Murray failed to proceed into the intersection only when he might safely enter it without interference or collision with traffic. RESPONSE: REQUEST FOR ADMISSION NO. 159: At the time of the accident which is the subject of this suit, Murray received a ticket for running the light, failing to yield, failing to keep a proper lookout. RESPONSE: REQUEST FOR ADMISSION NO. 160: Each of these acts in Requests for Admission No. 151-159 and omissions, singularly or in combination with others, constituted negligence which proximately caused the occurrence made the basis of this action and plaintiff's damages. RESPONSE: REQUEST FOR ADMISSION NO. 161: xxxx A. xxxx at Allstate informed Plaintiffs that Joe Krocker’s Toyota Celica had to be moved from Metro Salvage Yard on xxxx xxxx to a body shop of our choice for further examination and review on the extent of the damages. RESPONSE: REQUEST FOR ADMISSION NO. 162: Based upon Strunk’s representations, Plaintiffs selected Freedom Paint and Body Shop. RESPONSE: REQUEST FOR ADMISSION NO. 163: xxxx A. xxxx provided Plaintiffs with an identification number, 802694 for a rental car since Plaintiffs were pursuing coverage under the Allstate policy and moving the vehicle to Freedom Paint and Body Shop at 4732 N. xxxx, Houston, Texas 713-692-xxxx, Fax 713-692-xxxx. RESPONSE: REQUEST FOR ADMISSION NO. 164: Although Plaintiffs were informed that Allstate was accepting liability, Plaintiffs have not received anything in writing. RESPONSE: REQUEST FOR ADMISSION NO. 165: Despite their requests, Plaintiffs have not been reimbursed wrecker fees. RESPONSE: REQUEST FOR ADMISSION NO. 166: After agreeing to provide a rental car and giving Dan Krocker an identification number 802694 for the rental, Sherry Strunk cancelled the rental car on August 19, 2003. RESPONSE: REQUEST FOR ADMISSION NO. 167: Upon receipt of a demand letter for breach of contract, DTPA violation and violations under Tex. Ins. Code Art. 21.21, Allstate provided a new rental number for a car for a 30 day period. RESPONSE: REQUEST FOR ADMISSION NO. 168: For a second time, the rental car was cancelled effective Monday September 15, 2003 when Allstate was unable to bully the Plaintiffs into accepting an amount below the AMICA fair market value calculation. RESPONSE: REQUEST FOR ADMISSION NO. 169: Allstate paid for a rental car for less than the agreed 30 day period. Allstate often cancels rental cars in hopes of forcing a settlement. RESPONSE: REQUEST FOR ADMISSION NO. 170: On August 19, 2003, Danny Childress, adjuster at Allstate finally went to the Metro Salvage yard to inspect the 2000 Toyota Celica RESPONSE: REQUEST FOR ADMISSION NO. 171: The Childress report determines the car can be repaired for $7,792.56 with a clip job of welding the back end of a car found in Oklahoma from Dan’s Salvage yard for $$3,850 and labor of 25 hours. RESPONSE: REQUEST FOR ADMISSION NO. 172: Childress did not go to Oklahoma to inspect the car for the clip job. RESPONSE: REQUEST FOR ADMISSION NO. 173: Childress failed to disclose what is involved in a clip job and any concerns about two VIN numbers, breach of warranty, diminished value and the inability to obtain a car title. RESPONSE: REQUEST FOR ADMISSION NO. 174: Childress determined the fair market value is $15,525 less than a $1,000 of the AMICA estimate. RESPONSE: REQUEST FOR ADMISSION NO. 175: On August 22, 2003, Plaintiffs arrived at the Enterprise office at 1112 East Division, Arlington, Texas 76011-7338, (817) 265-5424. Plaintiffs were informed that Allstate had cancelled the rental car. Joe Krocker was left to attend the University of Arlington without transportation. RESPONSE: REQUEST FOR ADMISSION NO. 176: Plaintiff relied on the fraudulent misrepresentations and omissions made by Sherry Strunk and Allstate. RESPONSE: REQUEST FOR ADMISSION NO. 177: Plaintiffs’ claims are made for conversion and also under the Deceptive Trade Practices and Consumer Protection Act Sections 17.50(a)(1) Laundry List (Sections 17.46(b)(5), (7), (12), (21) and (23)), breach of express and implied warranties. RESPONSE: REQUEST FOR ADMISSION NO. 178: Allstate and Strunk have breached their common law implied warranty of performing their services in a good and workmanlike manner. RESPONSE: REQUEST FOR ADMISSION NO. 179: Allstate and Strunk’s conduct was also an unconscionable action or course of action against Plaintiffs as that term is defined in Sections 17.45(5)(A) and (B) since Allstate and Strunk took advantage of Plaintiffs to a grossly unfair degree and such transaction resulted in a gross disparity between the value received and consideration paid by us. RESPONSE: REQUEST FOR ADMISSION NO. 180: When a manager such as Sherry Strunk behind the veil actively participated in the act leading to liability, there is no need to use piercing and indeed there are relatively few cases involving torts within close corporations. RESPONSE: REQUEST FOR ADMISSION NO. 181: As a service provider, Strunk and Allstate are liable to consumers for misrepresentations under the DTPA since Defendants misrepresented that the service provided was of a particular standard, quality or grade than it really was. RESPONSE: REQUEST FOR ADMISSION NO. 182: After receiving eight demand letters for breach of contract, DTPA and violations of Tex. Ins. Code Art. 21.21 requesting in writing that Allstate accept liability, Sherry Strunk sent a letter stating that “we have accepted liability at 100%.” RESPONSE: REQUEST FOR ADMISSION NO. 183: Plaintiffs have sent Defendants nine demand letters. Neither Strunk or Murray are accepting their certified letters. They obviously feel they are untouchable and above the law. RESPONSE: REQUEST FOR ADMISSION NO. 184: On September 12, 2003, Dan Krocker was informed by Celist Land at Allstate, that their estimate of the fair market value had gone down from $15,525.00 to $15,188.50. RESPONSE: REQUEST FOR ADMISSION NO. 185: Dan Krocker informed Celist Land that no one could replace the car for $15,525.00 and that his clients wanted the car replaced. RESPONSE: REQUEST FOR ADMISSION NO. 186: The AMICA estimate of fair market value was $16,541.70. RESPONSE: REQUEST FOR ADMISSION NO. 187: Allstate had previously suggested buying half a car from Dan’s Salvage and clipping it together. Allstate could just as easily buy a whole car. RESPONSE: REQUEST FOR ADMISSION NO. 188: Celist Land informed Dan Krocker that Allstate would not replace the car despite the language in the policy and despite the fact that the replacement would stop any argument of fair market value. Apparently, Celist preferred to go to court. RESPONSE: REQUEST FOR ADMISSION NO. 189: Within minutes of our agreement to disagree, Celist Land notified Dan Krocker that the rental car would be cancelled effective Monday, September 15, 2003 and Joseph Krocker could learn to walk to school in Arlington. Allstate has done all they could to prevent Joseph Krocker from attending UT Arlington. RESPONSE: REQUEST FOR ADMISSION NO. 190: As a result of the negligent conduct of defendants, plaintiff suffered liquidated damages equal to the fair market value of his vehicle since the vehicle has been totaled by both Plaintiff’s insurance company, AMICA and Murray’s insurance company, Allstate. The fair market value may be determined by the replacement costs of Plaintiff’s vehicle with all of its options, new tires, rear European brake lights and an extended warranty. RESPONSE: REQUEST FOR ADMISSION NO. 191: The plaintiffs are entitled to recover their actual damages which is the fair market value of the vehicle which is mostly clearly evidenced by the replacement of the vehicle and attorney's fees from both defendants, and is entitled to recover awards of punitive damages separately against each defendant. RESPONSE: REQUEST FOR ADMISSION NO. 192: Allstate refused to meet the Plaintiff’s estimate of fair market value or AMICA’s estimate of fair market value or replace the vehicle. RESPONSE: REQUEST FOR ADMISSION NO. 193: Defendants' acts and omissions demonstrated a willful, wanton, malicious and utter disregard for the rights, well being and best interests of plaintiffs, entitling plaintiffs to an award of punitive damages RESPONSE: SIGNED ON , 2003. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY By: AFFIDAVIT THE STATE OF TEXAS § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, on this day personally appeared for ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, who, being by me duly sworn, upon oath stated that each of the foregoing answers to Plaintiff's First Set of Requests For Admissions is true and correct. SIGNED AND SWORN TO before me on , 2003. Notary Public, State of Texas My Commission Expires on: CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served on Defendants with the Petition. Dan Krocker NO. JAN KROCKER AND § IN THE COUNTY COURT JOSEPH KROCKER § AT LAW NO. PLAINTIFFS § HARRIS COUNTY, VS. § TEXAS, SHERRY A. STRUNK, GRETCHEN LEIGH YOUNG AKA GRETCHEN MURRAY, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY § DEFENDANTS § PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT TO: Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, through its registered agent C.T. Corp. 350 North St. Paul St., Dallas, Texas 75201. COMES, NOW, JAN KROCKER, Plaintiff, in the above entitled and numbered cause, and pursuant to Rule 197 of the Texas Rules of Civil Procedure, propounds the attached Interrogatories. You are advised that your answers to such Interrogatories must be answered in writing, and under oath, within fifty (50) days from the date of service of this pleading in the offices of the undersigned. You are further notified that these Interrogatories and your sworn answers to them may be offered in evidence at the trial of the above cause. When answering these Interrogatories, you are requested to refer to the "Definitions and Instructions" attached hereto and made a part hereof. Respectfully Submitted Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 Definitions and Instructions A. Except when otherwise specified, each interrogatory requests information for, or relating or referring to, the period from the date of service of Defendant’s answers to the interrogatory. B. If Defendant claims any privilege or immunity concerning any of these interrogatories, Defendant shall state his claim in detail and provide all information that is relevant to an evaluation by the Court of the claim of privilege or immunity. The information shall be sufficient to allow presentation of the claim to the Court and to allow Plaintiff to contest the claim and to urge any waiver of the privilege. The information shall also include, without limitation, the identity of all documents and of all oral statements and communications relating to the claim or his waiver. C. These interrogatories are continuing in nature. If further information or documents come into the possession of, or are brought to the attention of, Defendant or his agents, employees, officers, directors, representatives or attorneys during trial or prior to trial, then supplementation of Defendant's responses is required. D. The terms "you," "your," or "Defendant" mean the Defendant separately answering these interrogatories, his affiliates and their parent(s), merged, consolidated, or acquired predecessors, divisions, subsidiaries, and affiliates, wholly or partially owned or controlled, including present and former officers, directors, agents, employees, and all other persons acting or purporting to act on behalf of the Defendant or their affiliates or predecessors, subsidiaries and affiliates. These words also include all agents, employees, representatives, attorneys and all other persons acting on Defendant's behalf. E. The term "person" means and includes, without limitation, every natural person, association, firm, partnership, corporation, board, committee, agency, commission, legal entity of any form or type, and every other organization or entity, whether public or private. F. The singular and masculine form of any noun or pronoun includes the plural, the feminine, and the neuter. G. The term "Answer" means each answer filed in this action by Defendant. H. The term "oral communication," "oral" or "oral statement" mean any oral expression, exchange or transmission of thoughts, message, information or the like, at any time or place and under any circumstances whatsoever. I. The term "documents" means and includes documents that in any manner or form are relevant in any way to the subject matter in question, including, without limitation, all documents that contain, record, reflect, summarize, evaluate, comment upon, or discuss that subject matter or that in any manner state the background of, or were the basis or bases for, or that record, evaluate, comment upon, relate to, or were referred to, relied upon, utilized generated, transmitted, or received in arriving at Defendant's conclusion(s), opinion(s), estimate(s), position(s), decision(s), belief(s), or assertion(s) concerning the subject matter in question. J. The term "communications" or "all communications relating to" means and includes all communications that in any manner or form are relevant in any way to the subject matter in question, including, without limitation, all communications that contain, record, reflect, summarize, evaluate, comment upon or discuss that subject matter or that in any manner state the background of, or were the basis or bases for, or that record, evaluate, comment upon, relate to, or were referred to, relied upon, utilized, generated, transmitted, or received in arriving at Defendant's conclusion(s), opinion(s), estimate(s), position(s), decision(s), belief(s), or assertion(s) concerning the subject matter in question. K. The use of the term "identify" or the term "identity" in any of their forms in these interrogatories shall require Defendant to provide: (1) With respect to a natural person, the person's full name, present employer, present job title, present job description, present business address and present residence address (last known business and residence addresses if the present addresses are unknown). If there have been changes in employer, job title, or job description during the time period covered by these interrogatories, then the Defendant shall provide all employers, titles, job descriptions, together with the period during which each title or job was held; (2) with respect to an expert witness, his full name, present employer, present job title, present job description, present business address, present residence address, field(s) of expertise, date of each contact or consultation with him, the subject of each report made by him and the date thereof, whether such report was oral or written, whether each report was made in an advisory capacity or as a prospective witness, or both, and whether Defendant intends to call him as an expert witness at trial of this case (if Defendant does not know if he will testify, the date or dates by which Defendant anticipates it will know about each expert, whether they will call him to testify as an expert witness); (3) with respect to a business entity, the full name of the business entity, the present address of its principal place of business, the present address of each of its other places of business, all dates and state of incorporation, all dates and places or registration, and the identity of its officers, directors, and partners; (4) with respect to a document or written communication, the title, date, author (and, if different, the signer or signers), addressee, recipient of each copy, subject matter and substance, the present location and the identity of the custodian(s). All documents shall be so identified regardless of whether the document is in Defendant's possession, custody, or control and regardless of whether the document is claimed to be privileged. The identification of a document requires the identification, as separate documents, of all attachments to each document, and all drafts and revisions of the document; (5) with respect to a file, the title, any other file designation, date, subject matter, and the location(s) where it is maintained in the usual course of business; (6) with respect to an oral statement, representation of communication, the identification of each person taking part in the communication, the identification of each person present at the time of the communication, the subject matter of the communication, the substance and content of the communication in detail, the mode of communication, the date and location of the communication, and the identification of all documents relating thereto; (7) with respect to a party, they should be identified in the same manner as specified herein about a natural person or to a business entity, whichever the case may be; L. The term "Document" means each of the following that is in the possession, custody, or control of the defendant or that can be obtained by the defendant through the exercise of a superior right to compel production from a third party: the original and each non-identical copy (whether different from the original by virtue of Accounts made or otherwise) and, if the original is not in existence or subject to your control, each non-identical copy, regardless of origin or location, of any handwritten, typewritten, printed, recorded, transcribed, punched, taped, photocopied, photostatic, faxed, telecopier, filmed, microfilmed, or otherwise prepared matter, including without limitation any papers, books, accounts, drawings, graphs, charts, photographs, phono-records, plans, blueprints, telexes, telegrams, electronic or videotaped or mechanical recordings, magnetic impulses, and any other data compilation from which information can be obtained or translated into reasonably usable form. M. The term "Subject Vehicle" refers to that certain 2001 Toyota Celica described in the complaint on file herein N. The term "Oral Statement" means and includes any face to face communication, conversation, meeting, conference or any such communication by telephone, radio, or other means of verbal communication. O. The term . "STATE IN FULL DETAIL" means to set out in the fullest detail possible all knowledge or information available to you on the subject. The words "STATE IN FULL DETAIL" are capitalized so as to emphasize their full scope as so defined. P. The term “Aftermarket Parts” refers to non-Original Equipment Manufacturer ("non-OEM") or crash parts or imitation parts. For purposes of this discovery and the petition, OEM parts are those parts made by the original automobile manufacturers or suppliers; non-OEM parts are made by outside companies without access to the design specifications of the OEM parts. Aftermarket parts are made for repair shops, hardware stores and auto retailers and not shipped directly from auto manufacturers. Q. The term “Crash parts" are described as vehicle components typically repaired or replaced as a result of crash damage rather than normal use. They are primarily sheet metal and plastic parts attached to the outer shell of the vehicle. The types of "crash parts" at issue included fenders, hoods, doors, quarter panels, tailgates, grills, headlight and taillight mounting panels, brackets, moldings, and bumpers. INTERROGATORY NO. 1: Did Plaintiff or Plaintiff's counsel present to Defendant or to any of Defendant's agents, representatives, or employees a demand for payment of the claim made the subject of this suit? If so, state the date it was received, the name of the person receiving it, the relationship to Defendant of the person receiving it, the relationship to Defendant of the person receiving it, and the amount of such demand. INTERROGATORY NO. 2: Provide the names, telephone numbers and address for employees of Allstate who drive automobiles which have been involved in a clip job as proposed for the 2000 Toyota Celica in this case. INTERROGATORY NO. 3: Please identify any exhibits which you intend to offer into evidence in this proceeding. INTERROGATORY NO. 4: IDENTIFY each of YOUR employees who communicated with Plaintiffs or Plaintiff's counsel, Dan Krocker, regarding the SUBJECT VEHICLE and the insurance coverage, suggested repairs, suggesting fair market value of the SUBJECT VEHICLE, stating the approximate date and substance of each communication. INTERROGATORY NO. 5: IDENTIFY each of YOUR employees who participated in YOUR decisions concerning the proposed repair of the SUBJECT VEHICLE and the proposed calculation of repair estimates, costs and determinations of fair market value. INTERROGATORY NO. 6: IDENTIFY YOUR employee who is most knowledgeable regarding YOUR warranty and guaranty policies, policies of using aftermarket parts, policies pertaining to the calculation of repairs, policies regarding the calculation of fair market value and the use and operation of any computer programs used in assisting in these calculations, appraisals and estimates including any policies relating to the purchase and sale of clipped vehicles which are subsequently purchased, assigned to or relinquished to or by Allstate. INTERROGATORY NO. 7: IDENTIFY the make, model, VIN, and name and address of all owners of vehicles in which Allstate paid for or suggested in their appraisals clip jobs for insureds, third party claimants and consumers in the state of Texas since January 1, 2000. INTERROGATORY NO. 8: IDENTIFY all ORAL STATEMENTS relating to your estimates of repair costs, clipping proposal, estimates of fair market value and diminished value on the SUBJECT VEHICLE, including but not limited to all statements relating to negotiations and communications prior to the submission of each repair estimate. INTERROGATORY NO. 9: STATE IN FULL DETAIL any inspections, evaluation of repairs or fair market value,, clipping estimate, or appraisals done by or for you to the SUBJECT VEHICLE, and list the date each such inspection was done and the IDENTITY of each person doing such work. INTERROGATORY NO. 10: Please state the name and address of every person with any knowledge of facts relevant to any matter in support of Defendant's allegations of repair estimates, fair market value calculation sand defenses to Plaintiff's claims. INTERROGATORY NO. 11: Please state the amount of money which Defendant admits that it owes to Plaintiff, including the computations for such amount. INTERROGATORY NO. 12: Please identify each person with knowledge of any relevant facts relating to the incident that is the basis of this lawsuit. Please state with specificity the particular knowledge each person possesses and any opinion such person has formed that is relevant to the subject matter of this case. INTERROGATORY NO. 13: As to each consultant or non-testifying expert or opinion witness, including any lay opinion witness, or fact witness state the following: identify each person; the substance of the facts and opinions held by the expert; every report, document, opinion or impression that has been submitted to you that was prepared by or reviewed by each person listed in your answers regarding the subject matter of this litigation; and, if any person named in the answers to this Interrogatory has not reduced a report (regarding every opinion, conclusion, or impression) to writing, please state the substance of such opinions, conclusions, or impressions. INTERROGATORY NO. 14: Please identify each person you have consulted or from whom you have sought expert advice or opinions relating to the subject matter of this litigation and who has not been identified in response to the immediately preceding interrogatory, if such consultant's or expert's work product either forms the basis, in whole or in part, of the opinions, conclusions, or impressions of an expert you expect to call as a witness or has been reviewed by an expert you expect to call as a witness. INTERROGATORY NO. 15: Please identify any statement that you have obtained from any persons with knowledge of relevant facts. INTERROGATORY NO. 16: Identify any document containing any relevant facts to this litigation as defined in Texas Rules of civil Procedure, Rules 166b(2)(a) and (b), and state the particular facts each such document contains. INTERROGATORY NO. 17: For referrals since January 1, 2000, identify the name, address and telephone number of each insured or third party claimant who received information from Allstate of mechanics, repair and maintenance facilities, body shops who do clip jobs in the state of Texas. INTERROGATORY NO. 18: Identify each and every civil suit in which you have been a defendant at any time between January 1, 2000 and the present, which included allegations that you made any misrepresentations, failed to disclose any material facts, or violated any "consumer protection" statutes or violated Tex. Ins. Code Art. 21.21 in the repair of any insured's or third party claimant's vehicle in which aftermarket parts or clipping was involved, and state in full detail the nature and outcome of the case. INTERROGATORY NO. 19: IDENTIFY, by year, make, model, vehicle identification number, the identity and address of the insured or third party claimant whose vehicle was clipped following the receipt of a repair estimate in which Allstate covered the costs for clipping and the identity of the person to whom the vehicle was sold, each and every vehicle sold by you at any time after January 1, 2000, about which you have received information indicating or requesting information that the vehicle may have had undisclosed wreck damage, or may have been misrepresented as to its ownership or use history, at the time you paid for the repairs or sold it. For each such vehicle state: A) The identity of the person from whom you received the information; B) The exact nature of the information you received, including identification of any documents you received containing the information. INTERROGATORY NO. 20: IDENTIFY, by year, make, model, vehicle identification number, the identity and address of the insured or third party claimant who contested the fair market value determinations made by Allstate at any time after January 1, 2000. For each such vehicle state: A) The identity of the person from whom you received the information; B) The exact nature of the information you received, including identification of any documents you received containing the information. SIGNED ON , 2003. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY By: AFFIDAVIT THE STATE OF TEXAS § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, on this day personally appeared ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY being by me duly sworn, upon oath stated that each of the foregoing answers to Plaintiff's First Set of Interrogatories is true and correct. SIGNED AND SWORN TO before me on , 2003. Notary Public, State of Texas My Commission Expires on: CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served on Defendant with the Petition. Dan Krocker Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 NO. JAN KROCKER AND § IN THE COUNTY COURT JOSEPH KROCKER § AT LAW NO. PLAINTIFFS § HARRIS COUNTY, VS. § TEXAS, SHERRY A. STRUNK, GRETCHEN LEIGH YOUNG AKA GRETCHEN MURRAY, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY § DEFENDANTS § PLAINTIFF'S REQUEST FOR DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION, COPYING AND PHOTOGRAPHING TO: Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, through its registered agent C.T. Corp. 350 North St. Paul St., Dallas, Texas 75201. In accordance with Texas Rules of Civil Procedure 196, Plaintiff, Jan Krocker, hereby requests the discovery and production of the documents and things for inspection, copying and photographing as stated herein. Pursuant to Texas Rules of Civil Procedure 196, you are hereby required to serve your response and include therewith the documents requested for production at the expiration of 50 days from the date upon which you received a copy of this request. The documents and things for discovery and production, inspection, copying and photocopying are listed in Exhibit "A". Plaintiff requests that you make the requested documents available at 710 North Post Oak Road, Suite 400, Houston, Texas on or before the 50th date from the date upon which you have received this request. Respectfully Submitted Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 Certificate of Service The undersigned certifies that a true and correct copy of the foregoing instrument was served upon Defendant with the Petition. Dan Krocker Definitions and Instructions A. If Defendant claims any privilege or immunity concerning any of these requests for production, Defendant shall state his claim in detail and provide all information that is relevant to an evaluation by the Court of the claim of privilege or immunity. The information shall be sufficient to allow presentation of the claim to the Court and to allow Plaintiff to contest the claim and to urge any waiver of the privilege. The information shall also include, without limitation, the identity of all documents and of all oral statements and communications relating to the claim or his waiver. B. These requests for production are continuing in nature. If further information or documents come into the possession of, or are brought to the attention of, Defendant or his agents, employees, officers, directors, representatives or attorneys during trial or prior to trial, then supplementation of Defendant's responses is required. C. The terms "you," "your," or "Defendant" mean the Defendant separately answering these requests for production, his affiliates and their parent(s), merged, consolidated, or acquired predecessors, divisions, subsidiaries, and affiliates, wholly or partially owned or controlled, including present and former officers, directors, agents, employees, and all other persons acting or purporting to act on behalf of the Defendant or his affiliates or predecessors, subsidiaries and affiliates. These words also include all agents, employees, representatives, attorneys and all other persons acting on Defendant's behalf. D. The term "person" means and includes, without limitation, every natural person, association, firm, partnership, corporation, board, committee, agency, commission, legal entity of any form or type, and every other organization or entity, whether public or private. E. The singular and masculine form of any noun or pronoun includes the plural, the feminine, and the neuter. F. The term "Answer" means each answer filed in this action by Defendant. G. The term "oral communication," "oral" or "oral statement" mean any oral expression, exchange or transmission of thoughts, message, information or the like, at any time or place and under any circumstances whatsoever. H. The term "documents" means and includes documents that in any manner or form are relevant in any way to the subject matter in question, including, without limitation, all documents that contain, record, reflect, summarize, evaluate, comment upon, or discuss that subject matter or that in any manner state the background of, or were the basis or bases for, or that record, evaluate, comment upon, relate to, or were referred to, relied upon, utilized generated, transmitted, or received in arriving at Defendant's conclusion(s), opinion(s), estimate(s), position(s), decision(s), belief(s), or assertion(s) concerning the subject matter in question. I. The term "communications" or "all communications relating to" means and includes all communications that in any manner or form are relevant in any way to the subject matter in question, including, without limitation, all communications that contain, record, reflect, summarize, evaluate, comment upon or discuss that subject matter or that in any manner state the background of, or were the basis or bases for, or that record, evaluate, comment upon, relate to, or were referred to, relied upon, utilized, generated, transmitted, or received in arriving at Defendant's conclusion(s), opinion(s), estimate(s), position(s), decision(s), belief(s), or assertion(s) concerning the subject matter in question. J. The term "Document" means each of the following that is in the possession, custody, or control of the defendant or that can be obtained by the defendant through the exercise of a superior right to compel production from a third party: the original and each non-identical copy (whether different from the original by virtue of notes made or otherwise) and, if the original is not in existence or subject to your control, each non-identical copy, regardless of origin or location, of any handwritten, typewritten, printed, recorded, transcribed, punched, taped, photocopied, photostatic, faxed, telecopier, filmed, microfilmed, or otherwise prepared matter, including without limitation any papers, books, accounts, drawings, graphs, charts, photographs, phono-records, plans, blueprints, telexes, telegrams, electronic or videotaped or mechanical recordings, magnetic impulses, and any other data compilation from which information can be obtained or translated into reasonably usable form. k. The "SUBJECT VEHICLE" is that certain 2000 Toyota Celica described in the complaint on file herein l. The term “Aftermarket Parts” refers to non-Original Equipment Manufacturer ("non-OEM") or crash parts or imitation parts. For purposes of this discovery and the petition, OEM parts are those parts made by the original automobile manufacturers or suppliers; non-OEM parts are made by outside companies without access to the design specifications of the OEM parts. Aftermarket parts are made for repair shops, hardware stores and auto retailers and not shipped directly from auto manufacturers. M. The term “Crash parts" are described as vehicle components typically repaired or replaced as a result of crash damage rather than normal use. They are primarily sheet metal and plastic parts attached to the outer shell of the vehicle. The types of "crash parts" at issue included fenders, hoods, doors, quarter panels, tailgates, grills, headlight and taillight mounting panels, brackets, moldings, and bumpers. Exhibit "A" 1. All documents, exhibits, fact, recordings, agreements, contracts which pertain to the fair market value of Joseph Krocker’s 2000 Toyota Celica or this litigation. 2. A complete set of the correspondence from Allstate to Plaintiff dated August 19, 2003. Allstate only sent pages 1-3 which ends with “all sheet metal components should.” 3. All documents identified in response to the Interrogatories served simultaneously herewith or used in answering such Interrogatories and segregated according to the interrogatory to which they refer. 4. All documents, including, but not limited to, tape recordings or electrical or mechanical recordings or transcriptions evidencing, referring, or relating in any way to the subject matter of this litigation. 5. All documents, including, but not limited to, all reports, tangible things, factual observations, tests, supporting data, calculations, opinions, compilations of data, and other material which have been prepared by a consultant or non-testifying expert concerning this lawsuit. Regarding any such expert who has not prepared a report, request is hereby made that one be prepared and furnished to Plaintiff with the response to this Request for Production. 6. All expert reports which were reviewed, in whole or in part, by any such consultant or non-testifying expert. 7. All work papers, notes, documents, tangible things, or data base of any consultant or non-testifying expert retained in this case or whose report, conclusion, impression, or finding has been reviewed by an expert who will be called to testify at trial or may be called to testify at trial. 8. Every journal, book, treatise, article or other piece of professional literature upon which you intend to rely in the prosecution of your claims against Plaintiff or in which you intend to offer in evidence and upon which you intend to examine any expert witness. 9. Statements taken from any person who has knowledge of any relevant facts to this suit. 10. A current curriculum vitae for each consultant or non-testifying expert, who will not be called as a witness but whose report(s), physical model(s), compilations(s) of data, tangible thing(s), document(s) or other material formed a basis, either in whole or in part, of the opinion of an expert who will be or may be called as a witness by you either at the trial of this cause or in a deposition to be taken in this cause. 11. A copy of the insurance policy in which Murray is the insured pertaining to this accident. 12. A copy of the current guidelines that Allstate adjusters follow when writing estimates for replacement parts. 13. Provide a copy of the documentation and information pertaining to the computer program used by Allstate adjusters to identify repairs the vehicle will require. 14. YOUR complete file(s) on the SUBJECT VEHICLE, including but not limited to (a) The full contents and jacket of YOUR business file relating to the SUBJECT VEHICLE; (b) The full contents and jacket of YOUR service file relating to the SUBJECT VEHICLE; ©) All correspondence, memorandum, faxes, e-mail, telephone messages, voice messages between you and plaintiff; (d) All DOCUMENTS concerning your insurer's liability pertaining to the SUBJECT VEHICLE ; (e) All witness statements concerning the accident, repair estimates, fair market value estimates and supporting DOCUMENTS; (f) All policy manuals, training manuals pertaining to the use of aftermarket parts, clipping, and determination of whether a vehicle is totaled and the calculation of fair market value and diminished value; (g) All comparable sales information used in determining fair market value of the SUBJECT VEHICLE; (h) All original factory new car warranties relating to the SUBJECT VEHICLE; (I) all paid invoices pertaining to the SUBJECT VEHICLE;; (k) Field reports and/or inspections of SUBJECT VEHICLE;; (n) DOCUMENTS related to customer assistance requests; (o) Warranty claims for reimbursement from insureds or third party claimants residing in Texas pertaining to Allstate’s use of aftermarket parts or clip jobs ; (p) All written warranties or guaranties provided to by Allstate to insures or third party claimants who reside in Texas and agreed to clip jobs or the use of aftermarket parts for the since January 1, 2000; ®) All disclosures YOU provided to plaintiff, and other insures or third party claimants pertaining to the use of aftermarket parts or clip jobs since January 1, 2000. (s) All DOCUMENTS evidencing communications between YOU and the body shops, salvage yards, adjusters, automobile repair or body shop workers relating to the SUBJECT VEHICLE; (t) All other DOCUMENTS evidencing communications between YOU and plaintiff relating to the SUBJECT VEHICLE; and (u) All other DOCUMENTS evidencing communications between plaintiff and/or plaintiff's representative and any defendant other than YOU. 15. All DOCUMENTS related specifically to the SUBJECT VEHICLE, or to plaintiffs, which are stored in any computer data base or which are otherwise accessible by computer. This includes, without limitation, any and all calculations of estimated repair costs and fair market value. 16. All technical service bulletins; memorandums, training manuals, training correspondence, service bulletins; service or repair directives, instructions or suggestions; notices which relate or mention aftermarket parts, clipping or appraisal methods for repairs and fair market value for vehicles covered by Allstate policies issued to residents of Texas since January 1, 2000. 17. The most current index to all technical service bulletins issued concerning the make and model of the SUBJECT VEHICLE. 18. Copies of all DOCUMENTS identified in, or which was used in preparation of, YOUR response to plaintiff's First Set of Interrogatories served with this request. 19. Allstate announcements to branch offices regarding the use of aftermarket parts, clipping, guaranties and warranties of aftermarket parts and reacquired vehicle resale disclosure and warranty coverage, with ALL attachments from January 1, 2000 to the present. 20. Warranty claims for reimbursement submitted to YOU and payments made by YOU concerning each and every insured vehicle in which aftermarket parts were used on vehicles owned by residents of Texas since January 1, 2000. 21. All DOCUMENTS you received from or sent to the department of motor vehicle concerning the vehicles which Allstate clipped or paid money out to insures or third party claimants in which the repair estimate covered costs for clipping in the state of Texas since January 1, 2000. 22. . The Petition or Complaint and final order or judgment for every suit identified in your response to Interrogatory 18. 23. All documents you have relating in any way to each vehicle identified in your response to Interrogatories 17, 18 and 19. 24. Any contract of employment or agreement for financial exchange of any kind that you have with Lennie Matthews, Sherry Strunk and Danny Childbeds. 25. Documentation, the program and information pertaining to the computer program used by Allstate adjusters to identify repairs the vehicle will require 26. Allstate’s computer program and documentation on the program pertaining to preparing repair estimate/appraisals. 27. Allstate’s procedure manual, memorandums, correspondence, training videos, announcements pertaining to advocating, suggesting or using aftermarket parts and/or clipping on insured’s or third party claimant’s vehicles. 28. Allstate’s procedure manual, memorandums, correspondence, training videos, announcements pertaining to advocating, suggesting different treatment of insures and third party claimants as it relates to using aftermarket parts and/or clipping on insured’s or third party claimant’s vehicles. 29. A complete copy of the Allstate appraisal pertaining to the SUBJECT VEHICLE. 30. Drafts of each version of the Allstate appraisal pertaining to the SUBJECT VEHICLE. 31. A copy of the insurance policy in which Murray is the insured pertaining to this accident. 32. A copy of last year’s insurance bill and invoice to Murray for auto insurance. 33. A copy of the current guidelines that Allstate adjusters follow when writing estimates for replacement parts or for clipping. 34. Allstate’s procedure manual, memorandums, correspondence, training videos, announcements pertaining to Allstate’s policies of providing rental cars to insures or third party claimants. 35. Allstate’s procedure manual, memorandums, correspondence, training videos, announcements pertaining to Allstate’s policies of providing informing insures or third party claimants about aftermarket parts and clipping. 36. Allstate’s resource materials, expert reports, procedure manual, memorandums, correspondence, training videos, announcements pertaining to Allstate’s policies pertaining to using aftermarket parts or clipping. 37. The Petition or Complaint and final order or judgment for every suit identified in your response to Interrogatory 20. 38. The expert reports, correspondence, internal memorandums for every suit identified in your response to Interrogatory 20. NO. JAN KROCKER AND § IN THE COUNTY COURT JOSEPH KROCKER § AT LAW NO. PLAINTIFFS § HARRIS COUNTY, VS. § TEXAS, xxxx A. xxxx, xxxx x xxxx AKA xxxx xxxx, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY § DEFENDANTS § PLAINTIFF'S REQUESTS FOR DISCLOSURE PURSUANT TO RULE 194.2 TO: Defendants, xxxx A. xxxx, xxxx x xxxx AKA xxxx xxxx, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY. Pursuant to Rule 194, you are requested to disclose, within 51 days of service of this request, the 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 (the responding party need not marshal all evidence that may be offered at trial). d. The amount and any method of calculating economic damages e. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. f. For any testifying expert: 1. The Expert’s name, address, and telephone number 2. The subject matter on which the expert will testify 3. The general substance of the 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 of the responding party, documents reflecting such information 4. If the expert is retained by, employed by, or otherwise subject to the control of the 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. j. 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 obtained by the responding party by virtue of an authorization furnished by the requesting party. Respectfully submitted, Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 TBA 11728300 Attorney for Plaintiff Certificate of Service The undersigned certifies that a true and correct copy of the foregoing instrument was served upon Defendants with the Petition. Dan Krocker