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MyraB
MyraB, Attorney
Category: Legal
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Grounds for dismissal?

Resolved Question:

Can I get a dismissal with prejudice because the facts on the paper's I was served by the plaintiff's attorney are incorrect? I was involved in a vehicle
collision with the plaintiff on November 20,2012. The papers I were served stated that the accident happened, "...on or around Feb 6,2013". The intersection, vehicle I was driving, and date are incorrect when compared to the police report. The plaintiff also calls me, by another name in the statement. Is this grounds for dismissal?
Submitted: 10 months ago.
Category: Legal
Expert:  MyraB replied 10 months ago.
Hello and thank you for your question.

In order to provide you with the most useful and relevant response to your question, please let me know in which state the complaint was brought.

I look forward to working with you to provide the answer you seek.
Customer: replied 10 months ago.
The complaint was brought in Houston, TX. I also forget to mention that the plaintiff already received monetary relief from the insurance company at the end of last year.
Expert:  MyraB replied 10 months ago.

Thank you for your response and additional information.

If the plaintiff already brought a claim and received compensation from your insurer, then it is likely that the plaintiff signed a release which would bar any further claims based on the same accident and injuries. Therefore, you may want to refer the complaint to your insurer as it has a duty to defend you and provide you with an attorney, and you can obtain a copy of the release, if any. You may be able to have the complaint dismissed with prejudice based on the release.

You may be able to obtain a dismissal of the action based on the other mistakes contained in the complaint, however, that complaint likely would be without prejudice, meaning that it could be brought again. Also, courts generally allow complaints to be amended to correct mistakes in the pleading, rather than dismiss them. The mistakes you mention seem to have been careless mistakes by the attorney or person who drafted the complaint. If you decide not to pursue a motion to dismiss, at some point, the defendant will likely file a motion to amend as he has no hope of proving his case as alleged. The complaint can be amended at any time up to the time of trial and even after trial if the issues were tried without objection. Also, you must specifically deny the allegations that are mistakes in the answer or objections may be deemed waived.

If you decide to go ahead with a motion to dismiss, the motion would be made under Texas Rules of Civil Procedure 91a which permits dismissal of an action where there is no basis in law or fact. The Rules of Civil Procedure may be found here http://www.supreme.courts.state.tx.us/rules/trcp/rcp_all.pdf

You may want to attach the police report to the motion as provided in Rule 59 and submit an affidavit stating that the date and location are not accurate (Rule 93). You will not be able to present evidence at any hearing. The motion must be submitted within 60 days of when you received the complaint. Attorneys fees and costs are awarded to the prevailing party. The defendant has the option to file an amended pleading within 3 days of the hearing date; and you are permitted to withdraw the motion. You must look at the entire Rule 91a and follow the procedure set forth.

 

Or, you can answer the complaint and deny the allegations and include these grounds as affirmative defenses to the complaint, including release and accord and satisfaction, and then file a motion for summary judgment when you receive the release. You may want to review the following Rules when preparing your answer: Starting with Rule 83 governing Answers, particularly Rule 85; Rules 92-94 including Rule 94 Affirmative Defenses. If the case is in County Court at Law or District Court, you must file an answer, in writing, by 10:00 am the Monday following 20 days after the date you were served (Rule 99(b)).

Please feel free to ask any follow-up questions.

Customer: replied 10 months ago.
This information has been extremely helpful. I have to ask: I was not listed as an insured on the insurance policy due to it being a vehicle I borrowed. So basically the owner's insurance paid. Do I not have that protection you mentioned because of my name not being on the policy?
Expert:  MyraB replied 10 months ago.
I have not seen the policy, but generally, you would have that protection. Although you are not a named insured, the insurance of the vehicle that you borrowed would give you coverage under the terms of the policy. If the vehicle was insured, then it would likely insure any authorized driver of the vehicle and any release should have included you, and you would be entitled to a defense provided by the insurer. So, you may want to notify the insurer of the complaint. If you are not covered under the policy they would need to explain why. In the meantime, you may want to answer the complaint so that you are not defaulted or request an extension of time to answer from the plaintiff's attorney so that you can look into the insurance coverage.

Let me know if you need any further information.
Customer: replied 10 months ago.
That is all. Thank you. You've been excellent.
Expert:  MyraB replied 10 months ago.
You're welcome. I'm glad I've been able to help. Please take a moment to rate my service as it is the only way I can receive credit for assisting you.

Thank you.
MyraB, Attorney
Category: Legal
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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