11/11/2015 18:24 FAX

li!i 003/008

WBPC-AUSTIN

9334P.002

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

BARBARA DIMICELI
Plaintiff,

IN THE 98TH DISTRlCT COURT

v.

THE CITY OF AUSTIN, TEXAS AND

CAPITAL METRO POLITAN
TRANSPORTATION AUTHORITY,
AKA CAPITAL METRO,
Defendants.

OF

TRAVIS COUNTY, TEXAS

DEFENDANT CAPITAL METROPOLITAN TRANSPORTATION

AUTHORITY'S ORIGINAL ANSWER
TO THE HONORABLE nJDGE:
Comes now Defendant Capital Metropolitan Transportation Authority and files
this Original Answer to Plaintiffs Petition in the abovestyled and numbered cause, and
would respectfully show the court as follows:

I.
I.

GENERAL DENIAL

Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant

generally denies each and every, all and singular, the allegations contained in the
Plaintiffs Original Petition, and demands strict proof thereof by a preponderance of the
credible evidence, hereby reserving their right to amend this answer to assert other and
further defenses in the premises.
2.

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

Defendant specially excepts to Plaintiffs' petition because it fails to state the maximum
amount of damages, and Defendant demands that Plaintiff now plead the maximum
amount of damages sought.

D~fendant

Pursuant to 30.014 of the Texas Civil Practices &

Capital Metro's Original Answer. page I of 6

11/11/2015 18:24 FAX

WBPC AUSTIN

li!i 004/008

9334P.002

Remedies Code, Defendant specially excepts to Plaintiff's petition because it does not
state the last three digits of Plaintiffs driver's license number or social security number.
3.

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

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

defense set forth in 41.0105 of the Texas Civil Practice & Remedies Code. Thus,
recovery of medical or healthcare expenses is limited to the amount actually paid or
incurred by or on behalf of Plaintiff.

II.

4.

AFFIRMATIVE DEFENSES

Defendant pleads as an affirmative defense that the occurrence in

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

caused, in whole or in part, by the acts, omissions, fault, negligence, responsibility, or
other conduct on the part of Plaintiff, Decedent, and/or responsible third parties for whom
Defendant is not responsible under the law. By reason thereof, Defendant asserts that
their legal liability, if any, is as prescribed and set forth in the Texas Civil Practice &
Remedies Code, 33.001 et seq,

5,

Defendant pleads the defense of sole proximate cause.

6.

Defendant pleads the affirmative defense of Limitation on Amount of

Liability pursuant to the Texas Tort Claims Act, 101.023(b) of the Texas Civil Practice
and Remedies Code.

7.

Defendant pleads the affirmative defense of governmental immunity for

any award of exemplary dan1ages pursuant to the Texas Tort Claims Act, 101.024 of
the Texas Civil Practice and Remedies Code.
8.

Defendant pleads the affirmative defense of unavoidable accident.

Defendant Capital Metro's Original Answer, page 2 of6

11/11/2015 18:24 FAX

WBPC-AUSTIN

liiD 005/008

9334P.002

9.

Defendant pleads that Capital Metropolitan Transportation Authority is

not a proper party to this suit because the operator of the vehicle involved in the incident
made basis of this lawsuit, Ron Calvert, was not an employee of Capital Metropolitan
Transportation Authority at the time the incident made basis of this suit occurred and
therefore vicarious liability does not apply. In the alternative, Defendant pleads that
Capital Metropolitan Transportation Authority should be released as a defendant under
the Texas Tort Claims Act I0!.1 06.

10.

Defendant demands a trial by jury. In this regard, Defendant would show

that it is exempt from posting security for costs under 451.054(c) of the Texas
Transportation Code.

III.
11.

REQUEST FOR DISCLOSURE

Pursuant to Rule 194, you a:re requested to disclose, within thirty (30) days

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

the correct names of the parties to the lawsuit;

(b)

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

(c)

the legal theories and, in general, the factual bases of the responding
party's claims or defenses;

(d)

the amount and any method of calculating economic damages;

(e)

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

relevant facts, and a brief statement of each identified person's connection
with the case;

(t)

for any testifying expert;

(I)

the expert's name, address, and telephone number;

Defendant Capital Metro's Original Answer, page 3 of 6

11/11/2015 18:25 FAX

WBPC-AUSTIN

liiD 008/008

9334P.002

(2)

the subject matter on which the expert will testify;

(3)

the general substance ofthe expert's mental impressions and

opinions and a brief summary of the basis for them, or if the expert
is not retained by, employed by, or otherwise subject to the
control ofthe responding party, documents reflecting such
information;

(4)

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

the control ofthe responding party:
(A)

all documents, tangible things, reports, models, or data

compilations that have been provided to, reviewed by, or
prepared by or for the expert in anticipation of the expert's
testimony; and

(B)

the expert's current resume and bibliography;

(g)

any discoverable indemnity and insuring agreements;

(h)

any discoverable settlement agreements;

(i)

any discoverable witness statements;

G)

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

occurrence that is the subject of the case, all medical records and bills that
are reasonably related to the injuries or damages asserted or, in lieu
thereof, an authorization permitting the disclosure of such medical records
and bills;

(k)

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

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

D~fendanr

Capital Metro's Original Answer, page 4 of 6

11/11/2015 18:25 FAX

WBPC-AUSTIN

li!i 007/008

9334P.002

obtained by the responding party by virtue of an authorization furnished

by the requesting party; and
the name, address, and telephone number of any person who may be

(I)

designated as a responsible third party.

IV.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take

nothing herein, that Defendant have its costs of Court, and for such other and further
relief, both general and special, to which Defendant may be justly entitled, whether at law
or in equity.
Respectfully submitted,
WALKER BRIGHT PC
5407 Parkcrest Drive, Suite 300

Austin, Texas 78731

Telephone:
(512) 708-1600
Facsimile:
(512) 708-1500

By:
ARTHUR L. WALKER
State Bar No. 20693900
arthur.walker@wblpc.com
ATTORNEY FOR DEFENDANT

D~fendant

Capital Metro 's Original Answer, page 5 of 6

11/11/2015 18:25 FAX

WBPC-AUSTIN

li!i 008/008

9334P.002

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
Defendant Capital Metro's Original Answer has been sent to the following via facsimile
and electronic filing with the court on November II, 2015.
Broadus A. Spivey
Law Offices of Broadus A. Spivey
3303 Northland Drive, Suite 205
Austin, TX 78731
Facsimile: (512) 474-1605
AI Holifield
Holifield & Associates
11907 Kingston Pike, Suite 20 I
Knoxville, TN 37394
Facsimile: (865) 566-0119

(li
ARTHUR L. WALKER

Defendant Capital Metro ':s Original Answer, page 6 of 6

WBPC-AUSTIN

11/11/2015 18:23 FAX

li!i 002/008

9334P.002

WALKER BRIGHT PC
ATTORNEYS AT LAW
5407 Patkorest Drive, Suite 300
Tcxns 78731
Telephone: (512) 708-1600
Au~th1,

Fac,imilo: (lll) 7081 500

November 11, 2015

VIA FASC/MILE: (865) 566-0119

AI Holifield
Holifield & Associates
11907 Kingston Pike, Suite 20 I
Knoxville, TN 37394
VIA FASCIMILE: (512) 474-1605

Broadus Spivey
Law Office of Broadus A. Spivey, P.C.
3303 Northland Drive, Suite 205
Austin, Texas 78731-4955
Re:

Cause No. D-1-GN-15-004821; Barbara Dimiceli v. The City of Austin,

Texas and Capital Metropolitan Transportation Authority, AKA Capital
Metro; In the 98 1h District Court ofTravis County, Texas.

Dear Mr. Holifield & Mr. Spivey;

Enclosed please find the following answer that was e-filed today:
1. Defendant Capital Metropolitan Transportation Authority's Original

Answer.
Please do not hesitate to contact our office if you have any questions.
Sincerely,
WALKER BRlGHT PC

Amanda Craven
Paralegal to Arthur L. Walker
arne

Enclosure

11/11/2015 18:23 FAX

li!i 001/008

WBPC-AUSTIN

9334P.002

WALKER BRIGHT PC
ATTORNEYSATLAW

5407 Parkcrest Drive

Suite 300
Au~tln, "rc:xR!I 76731
Telephone; (5 12) 708-1600
Facsimile: (S 12) 7081500

FACSIMILE TRANSMITTAL SHEET

TO:

FROM:
ARTHURL. WALKER

BROADUS SPIVEY
COMPANY:

DATE:

LAW OFFICE OF BROADUS A. SPIVEY,

P.C.

11111/2015

FAX NUMBER:

TOTAL NO. OF PAGES, INCLUDING COVER:

512-474-1605
CASE:

8
PROJECT CODE:

BETHANY CLARK
SENT BY:

TIME:

A. CRAVEN

URGENT

FOR REVIEW

PLEASE REPLY

PLEASE SIGN

PLEASE FILS

NOTES/COMMENTS:

Please see the attached letter and Def Cap Metro's Original Answer.
NOTYCE 'OF CONFiDENTiALITY
THE

DOClJMIINTS

ACCOMPA-NYING

THIS

FACSIMILE

TRANSMISSION

CONTAIN

CONFIDENTIAL

INfORMATION, WHICH IS LEGALLY, PRMLEGED AND INTENUitD SOLELY FOR THE USE OF THI'; PA-RTY TO
WHOM IT IS ADDRESSED.

WE REQUEST 1M MEDIA. T NOTIFICATION BY TELEPHONE OF MISROUTED

FACSIMILE 1'MNSMISSIONS SO THAT WE CAN AIU\i\NGI! FOR THE RETURN OF ALL DOCUMENTS TO OUR
OFFICE. IF YOU RECEIVE TlfiS FACSIMILE TRA-NSMISSION IN ERROR. YOU ARE HEREBY NOTIFIED THAT
ANY l)ISCLOSJJRE, COPYING DISTRIBUTION OR THE TAKING OF ANY ACTION IN RELIANCE UPON THE
CONTENTS OF ANY TMNSMITTED DOCUMENT HEREOF IS STRICTLY PROHIBITED.
IF ANY I' AGES ARE MISSING OR ARE RECEIVED POORLY,
PLEASE CALL (512) 7081600.

DAIIAO Orne" I 00 N. Central lixprosswoy, Stc. 800 Rlchordon, TeXILS 7S080 Telephone: (972) 744-0192 Fac,imilc; (972) 744-0067