UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

TRAVELERS PROPERTY CASUALTY 

COMPANY OF AMERICA 

§ 

§ 

§ 

§ 

§ 

Plaintiff, 

v. § Civil Action No. 5:20-cv-167 

§ 

VICTOR HUGO VARGAS AND 

BERTA L. QUINTANILLA 

§ 

§ 

§ 

Defendants. § 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S 

COMPLAINT FOR DECLARATORY .ruDGMENT 

TO THE HONORABLE UNITED STATES DISTRICT WDGE: 

This Complaint for Declaratory Judgment is filed by Travelers Property Casualty Company 

of America ("Travelers") against Victor Hugo Vargas ("Vargas") and Berta L. Quintanilla 

("Quintanilla") pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 and Rule 

57 of the Federal Rules of Civil Procedure to determine an actual case or controversy involving a 

declaration of rights and obligations under an insurance policy issued by Travelers to 

Schlumberger Technology Corporation ("Schlumberger"). 

I. PARTIES 

I. Plaintiff Travelers is a Connecticut corporation with its principal place of business 

also in Connecticut. 

2. Defendant Vargas is a citizen of Texas. 

3. Defendant Quintanilla is a citizen of Texas. 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT- Page I 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 1 of 9
II. JURISDICTION AND VENUE 

4. This Court has jurisdiction of this controversy under 28 U.S.C. § 1332 (a) in that 

the dispute is between citizens of different states and the amount in controversy exceeds the sum 

value of $75,000 exclusive of interests and costs. 

5. Venue is proper in this district pursuant to 28 U.S.C. § 1391 because the Quintanilla 

lawsuit is pending in Bexar County, Texas, which is located in the Western District of Texas, San 

Antonio Division. 

III. FACTS 

6. This dispute arises out of a lawsuit styled: Berta Quintanilla v. Victor Hugo Vargas, 

et. al., Cause No. 2018CI05655 on file in the 438th Judicial District Court of Bexar County, Texas 

(the "Quintanilla Lawsuit"). In this case, Quintanilla has sued Vargas alleging that his negligence, 

negligence per se and gross negligence were the proximate cause of the bodily injuries she 

sustained in an automobile accident they were involved in that occurred on February 18, 2018. 

Quintanilla has also sued Schlumberger alleging that Vargas was operating the vehicle while in 

the course and scope of his employment with Schlumberger. 

7. Although the Quintanilla Lawsuit has been litigated in earnest between Quintanilla 

and Schlumberger from its onset, Vargas has not participated in any form or fashion. While Vargas 

was apparently personally served with the Quintanilla Lawsuit on February 1, 2019, he has not 

been seen or heard of since. Vargas did not tender the Quintanilla Lawsuit to Travelers for a 

defense or coverage. Vargas did not file an Answer in the Quintanilla Lawsuit. Although efforts 

have been expended to find Vargas, they have been unsuccessful up to the time of the filing of this 

Original Complaint for Declaratory Judgment. 

TRAVELERS PROPERTY CASUAL TY COMP ANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT - Page 2 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 2 of 9
8. The absence of Vargas in the Quintanilla Lawsuit became a concern to Travelers. 

On the one hand, the Texas Supreme Court opinion in National Union Fire Ins. Co. of Pittsburgh, 

PA. v. Crocker, 246 S.W. 3d 603,610 (Tex. 2008) holds that: "[i]nsurers owe no duty to provide 

an unsought, uninvited, unrequested, unsolicited defense." On the other hand, Travelers knew that 

even though there were serious coverage issues regarding a duty to indemnify Vargas, but/for his 

failure to request a defense, the allegations in the Original Petition in the Quintanilla Lawsuit 

might otherwise impose a duty to defend Vargas under the Travelers Primary Policy. 

9. Accordingly, Travelers, under a reservation of its rights, elected to retain Chris 

Heinemeyer of Krenek & Heinemeyer to Answer and appear for Vargas. In response, Quintanilla 

filed a Motion to Show Authority requiring attorney Heinemeyer to locate Vargas and obtain his 

personal consent to represent him. Since Vargas has not been located, notwithstanding a diligent 

effort to do so, on information and belief, the trial court in the Quintanilla Lawsuit will soon grant 

Quintanilla's Motion to Show Authority, which will require attorney Heinemeyer to withdraw 

from his representation of Vargas. 

IV. THE TRAVELERS POLICY 

10. Travelers issued Policy No. TC2J-CAP-257T0343-TIL-17, which provides 

Business Auto Liability Insurance to Schlumberger for the policy period from July I, 2017 to July 

I, 2018 (the "Travelers Primary Policy"). The pertinent excerpts ofthis policy are attached hereto 

as Exhibit A. Only pertinent provisions of the policy are included because the entire policy is over 

600 pages. In pertinent part, the Travelers Primary Policy provides: 

SECTION II· COVERED AUTOS LIABILITY COVERAGE 

A. Coverage 

We will pay all sums an "insured" legally must pay as damages because of "bodily 

injury" ... to which this insurance applies, caused by an "accident" and resulting from 

the ... use of a covered "auto". 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAll'iT 

FOR DEC LARA TORY Jl:l)GMENT - Page 3 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 3 of 9
*** 

We have the right and duty to defend any "insured" against a "suit" asking for 

such damages ... However, we have no duty to defend any "insured" against a 

"suit" seeking damages for "bodily injury" ... to which this insurance does not 

apply. 

*** 

1. Who is An Insured 

The following are "insureds": .. 

b. Anyone else while using with your permission a covered "auto" you 

own ... 

*** 

SECTION IV - BUSINESS AUTO CONDITIONS 

The following conditions apply in addition to the Common Policy Conditions: 

*** 

2. Duties In The Event Of Accident, Claim, Suit Or Loss 

We have no duty to provide coverage under this policy unless there has been 

full compliance with the following duties: 

a. In the event of "accident", claim, "suit" or "loss", you must give us or our 

authorized representative prompt notice of the "accident" or "loss". 

*** 

b. Additionally, ... any other involved "insured" must: 

••• 

(2) Immediately send us copies of any request, demand. order, notice. 

summons or legal paper received concerning the claim or "suit". 

(3) Cooperate with us in the investigation or settlement of the claim or 

Defense against the "suit". 

11. Travelers also issued Policy No. TC2J-EX-229T7948-TIL-l 7, which provides 

Excess (Following Form) Liability Insurance to Schlumberger for the policy period from July 1, 

2017 to July 1, 2018 (the "Travelers Excess Policy"). The Travelers Excess Policy is attached 

hereto as Exhibit B. The Travelers Excess Policy is what is known as a "Following Form" policy 

in that, for the most part, it incorporates the te1ms of the Travelers Primary Policy. Pertinent to the 

Quintanilla Lawsuit are the following provisions of the Travelers Excess Policy: 

TR4. VELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLAR4. TORY JUDGMENT - Page 4 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 4 of 9
SECTION I - EXCESS (FOLLOWING FORM) LIABILITY COVERAGE 

1. INSURING AGREEMENT 

A. WE WILL PAY ON BEHALF OF THE INSURED THOSE SUMS, IN 

EXCESS OF THE TOTAL AMOUNT PAYABLE OF ALL THE LIMITS 

SHOWN ON THE DECLARATIONS FOR THE APPLICABLE 

"UNDERLYING INSURANCE", THAT THE INSURED BECOMES 

LEGALLY OBLIGATED TO PAY AS DAMAGES ... TO WHICH THIS 

INSURANCE APPLIES AND WHICH OCCURS ... DURING THE 

POLICY PERIOD, PROVIDED THAT THE "CONTROLLING 

UNDERLYING INSURANCE" ALSO APPLIES ... 

b. This insurance is subject to: 

(1) The same terms, conditions, agreements, exclusions and definitions as the 

"controlling underlying insurance", except with respect to any provisions to the 

contrary contained in this insurance ... 

••• 

2. DEFENSE OF CLAIMS OR SUITS 

••• 

b. . .. we will have no duty to defend the insured against any "suit" for damages 

to which this insurance does not apply . 

••• 

SECTION II - WHO IS AN INSURED 

Any person ... qualifying as an insured under the "controlling underlying 

insurance" is an insured under this policy . 

... 

SECTION IV - CONDITIONS 

••• 

5. DUTIES REGARDING AN EVENT, CLAIM OR SUIT 

••• 

b. If a claim is made or "suit" is brought against any insured which may result in 

a claim against this insurance, you must see to it that we receive prompt 

written notice of the claim or "suit". 

c. The insured must: 

(1) Cooperate with the "underlying insurers"; 

(2) Comply with the terms of the "controlling underlying insurance"; 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT-Page5 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 5 of 9
V. DECLARATORY JUDGMENT 

12. The allegations contained in Paragraphs I through 11 are incorporated by reference 

herein. 

13. Travelers seeks a declaratory judgment that the Travelers Primary Policy and the 

Travelers Excess Policy do not provide a duty to defend or a duty to indemnify Vargas m 

connection with the Quintanilla Lawsuit for the reasons more fully set forth below. 

14. First, there has been no tender and request for a defense of the Quintanilla Lawsuit 

by Vargas to Travelers. The holding of the Texas Supreme Court in National Union Fire Ins. Co. 

of Pittsburgh, PA. v. Crocker, 246 S.W. 3d 603, 610 (Tex. 2008) is that: "[i]nsurers owe no duty 

to provide an unsought, uninvited, unrequested, unsolicited defense." In that Vargas has not 

sought, invited, requested or solicited a defense of the Quintanilla Lawsuit from Travelers, 

notwithstanding the attempts to locate him, no coverage exists for Vargas under the Travelers 

Primary Policy. 

15. The Travelers Excess Policy "follows form," to the Travelers Primary Policy 

meaning with the exception of any provision to the contrary contained in the Travelers Excess 

Policy, it incorporates the provisions from the Travelers Primary Policy. Since no coverage exists 

for Vargas under the Travelers Primary Policy due to his failure to tender and request for a defense 

of the Quintanilla Lawsuit to Travelers, the Travelers Excess Policy is not triggered, and no 

coverage exists for Vargas under the Travelers Excess Policy either. Further, under the Defense 

of Claims or Suits Endorsement in the Travelers Excess Policy, Travelers does not owe a duty to 

defend Vargas against any suit for damages to which the Travelers Excess Policy does not apply. 

16. Second, Vargas has breached Business Auto Conditions Section IV. 2.b.2, of the 

Travelers Primary Policy regarding "Duties In The Event Of Accident, Claim, Suit or Loss." 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT - Page 6 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 6 of 9
Vargas, as an "other involved 'insured,"' did not immediately send Travelers copies of the formal 

suit papers he received in the Quintanilla Lawsuit when he was served with them. In that Vargas 

has not to date sent Travelers copies of the suit papers he received in the Quintanilla Lawsuit after 

service, he has violated this term of the Travelers Primary Policy. Travelers has suffered prejudice 

due to Vargas' failure to comply with Section IV. 2.b.2 of the Travelers Primary Policy "Duties In 

The Event Of Accident, Claim, Suit or Loss." Accordingly, no coverage exists under the Travelers 

Primary Policy for Vargas in connection with the Quintanilla lawsuit. 

17. The Travelers Excess Policy "follows form," to the Travelers Primary Policy 

meaning with the exception of any provision to the contrary contained in the Travelers Excess 

Policy, it incorporates the provisions from the Travelers Primary Policy. Since no coverage exists 

for Vargas under the Travelers Primary Policy for his failure to comply with Business Auto 

Conditions Section IV. 2.b.2. of the Travelers Primary Policy, the Travelers Excess Policy is not 

triggered, and no coverage exists for Vargas under the Travelers Excess Policy either. 

18. Third, Vargas has breached Business Auto Conditions Section IV. b.3. of the 

Travelers Primary Policy regarding "Duties In The Event Of Accident, Claim, Suit or Loss." 

Commonly known as the Cooperations Clause, this term requires Vargas to "[c]ooperate with 

[Travelers] in the investigation ... of the claim or defense against the 'suit."' In that Vargas has 

failed to cooperate with Travelers in the investigation of the claim or defense against the suit, 

notwithstanding Travelers' efforts, he has violated this term of the Travelers Primary Policy. 

Vargas' failure to comply with Section IV. b.3. of the Travelers Primary Policy, "Duties In The 

Event Of Accident, Claim, Suit or Loss," has caused prejudice to Travelers. Accordingly, no 

coverage exists under the Travelers Primary Policy for Vargas in connection with the Quintanilla 

lawsuit. 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT-Page 7 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 7 of 9
19. Similarly, Vargas has breached Conditions Section 5.c. of the Travelers Excess 

Policy regarding "Duties Regarding an Event, Claim or Suit," which is the Travelers Excess 

Policy's Cooperations Clause. This term requires Vargas to "[c]ooperate with [Travelers]" and to 

"[ c ]omply with the terms of the [Travelers Primary Policy]." In that Vargas has failed to cooperate 

with Travelers with respect to the Travelers Primary Policy and since he has failed to comply with 

the terms of the Travelers Primary Policy, he has violated these terms in the Travelers Excess 

Policy. Vargas' failure to comply with Conditions Section 5.c. of the Travelers Excess Policy 

regarding "Duties Regarding an Event, Claim or Suit," has caused prejudice to Travelers. 

Accordingly, no coverage exists under the Travelers Excess Policy for Vargas in connection with 

the Quintanilla lawsuit. 

20. Fourth, Vargas does not qualify as an insured under the Travelers Primary Policy. 

Pursuant to Section II-Liability Coverage A.I. "Who is an Insured," Vargas is only an insured if 

he was using the involved vehicle at the time of the accident with Schlumberger's permission. 

Because at the time of the accident, Vargas exceeded the permission granted to him by 

Schlumberger, Vargas was not a permissive user of the vehicle. Therefore, Vargas is not an insured 

under the Travelers Primary Policy. 

21. Likewise, Vargas does not qualify as an insured under the Travelers Excess Policy. 

Pursuant to Section II-"Who is an Insured." Under this provision, only a person qualifying as an 

insured under the Travelers Primary Policy is an insured under the Travelers Excess Policy. Since 

Vargas is not an insured under the Travelers Primary Policy, he is not insured under the Travelers 

Excess Policy. 

22. Based upon the language in the Travelers Primary Policy and the Travelers Excess 

Policy cited above and the facts as alleged, Travelers seeks a declaration from this Honorable Court 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT - Page 8 

Case 5:20-cv-00167 Document 1 Filed 02/11/20 Page 8 of 9
that Travelers does not have a duty to defend or indemnify Vargas in connection with the 

Quintanilla Lawsuit. 

23. Travelers pleads all other conditions, terms, limitations, definitions and exclusions 

contained in the Travelers Policy, which may be found to be applicable and Travelers specifically 

reserves the right to amend this Complaint for Declaratory Judgment as additional and/or more 

specific information becomes available. 

VI. PRAYER 

24. Travelers prays for declaratory judgment in its favor confirming it has no duty to 

defend and no duty to indemnify Vargas under the Travelers Policy for any claims or causes of 

action asserted against it in the Quintanilla lawsuit. Travelers further prays for all such other and 

further relief as equity and the justice of this cause may require and/or permit. 

Respectfully submitted, 

Isl Robert D. Allen 

Robert D. Allen 

State Bar No. 0 l051315 

bob.allen@theallenlaw.com 

THE ALLEN LAW GROUP 

10440 North Central Expwy. 

Suite 1450 

Dallas, TX 75251 

(214) 217-5012 (Telephone) 

(214) 291-5544 (Facsimile) 

ATTORNEY FOR PLAINTIFF TRAVELERS 

PROPERTY CASUALTY COMPANY OF 

AMERICA 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA'S COMPLAINT 

FOR DECLARATORY JUDGMENT-Page 9 

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