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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.
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