CAUSE NO. 

SAN ANTONIO AQUARIUM, LLC d/b/a § IN THE DISTRICT COURT OF 

SAN ANTONIO AQUARIUM, § 

Plaintiff, § 

§ 

§ BEXAR COUNTY, TEXAS 

v. § 

§ 

ATAIN SPECIALTY INSURANCE § 

COMPANY, § 

Defendant. § ______ JUDICIAL DISTRICT

______________________________________________________________________________ 

PLAINTIFF’S ORIGINAL PETITION

______________________________________________________________________________ 

COME NOW San Antonio Aquarium, LLC d/b/a San Antonio Aquarium (hereinafter

referred to as “Plaintiff”), complaining of Atain Specialty Insurance Company (hereinafter

referred to as “Atain” and/or “Defendant”) and respectfully show as follows: 

I.

DISCOVERY CONTROL PLAN

1. Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the Texas 

Rules of Civil Procedure. This case involves complex issues and will require extensive 

discovery. Therefore, Plaintiff asks the court to order that discovery be conducted in accordance 

with a discovery control plan tailored to the particular circumstances of this suit.

II.

PARTIES

2. Plaintiff San Antonio Aquarium, LLC d/b/a San Antonio Aquarium is a limited liability 

corporation in Texas. 

3. Defendant Atain Specialty Insurance Company is an insurance company engaging in the

business of insurance in the State of Texas. Defendant Atain may be served with process through 

57TH

CITBYCML FILED

4/13/2020 5:59 PM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Maria Abilez

2020CI07043

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Plaintiff’s Original Petition Page 2

the Texas Department of Insurance, Chief Clerk Office, at P.O. Box 149104, MC 112-2A, 

Austin, Texas 78714-9104, with further forwarding to c/o 30833 Northwestern Highway, Suite 

220, Farmington Hills, MI 48334-2582.

4. The Clerk is requested to issue Citations.

III.

JURISDICTION

5. Plaintiff seeks monetary relief exceeding $1,000,000. Such damages sought are within 

the jurisdictional limits of the court. Plaintiff contends that the determination of damages is 

within the sole discretion of the Judge and Jury, but makes stipulation as required by 

TEX.R.CIV.P. § 47. 

6. The court has jurisdiction over Defendant Atain because this Defendant engages in the 

business of insurance in Texas, and because Plaintiff’s causes of action arise out of this 

Defendant’s business activities in Texas.

IV.

VENUE

7. Venue is proper in Bexar County, Texas, because the insured property giving rise to this 

cause of action is situated in Bexar County, Texas. TEX.CIV.PRAC.REM.CODE §15.032.

V.

NOTICE AND CONDITIONS PRECEDENT

8. Defendant has provided, in writing, of the claims made by Plaintiff in this petition, 

including Plaintiff’s actual damages in the manner and form required pursuant to Tex.Ins. Code §

542A.003. Plaintiff has received a copy of such notice.

9. All other conditions precedent to suit or payment under the policy have been satisfied by 

Plaintiff, excused or waived by Defendant, or Plaintiff is excused from performance due to 

Defendant’s prior breach of the policy.

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Plaintiff’s Original Petition Page 3

10. Any failure that may have occurred on behalf of the Plaintiff have not prejudiced the 

Defendant in this case.

VI.

FACTS

11. Plaintiff is the owner of property located at 6320 E. Bandera Road, San Antonio, Texas 

78238 (“Property”). The Property was insured by insurance policy number CIP253601, issued 

by Defendant Atain (the “Policy”). Plaintiff is the owner of the Policy and the named insured 

under the Policy. 

12. On or about April 12, 2016, or another time when the Policy was in effect, a severe wind 

and hailstorm moved through the area causing substantial damage to the Property. These 

damages constituted a covered loss under the Policy. After becoming aware of the damages to 

their Property as a result of the storm, Plaintiff made a claim (claim no. 955195) and demand for 

payment on Defendant for damages to the Property and other damages covered by the terms of 

the Policy (“Claim”). After Plaintiff made the Claim, Defendant failed to comply with the 

Policy, the Texas Insurance Code and Texas law in handling Plaintiff’s claim. Further, 

Defendant has refused to pay all amounts due and owing under the Policy for the Claim.

13. Defendant Atain retained an adjuster with NCA Group to investigate the claim on their 

behalf. Defendant’s adjuster overlooked numerous areas of covered losses which led to the gross 

undervaluation of the Claim. Specifically, Defendant’s adjuster failed to incorporate the full 

extent of storm-caused damages in order to undermine the loss and avoid full payment as owed 

under the Policy. 

14. This estimate Defendant relied on was a misrepresentation of the covered losses and the

damages owed to Plaintiff under the Policy.

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Plaintiff’s Original Petition Page 4

15. On approximately August 4, 2016, Defendant issued a payment letter to Plaintiff based 

off its adjuster’s estimate. This letter failed to include any proper explanation of the reasons for 

Defendant’s underpayment on the Claim. Defendant failed to explain their reasons for its partial 

denial of Plaintiff’s Claim. 

16. The partial denial of Plaintiff’s Claim was based on Defendant’s improper investigation 

and misrepresentation of the full extent of covered losses. The covered losses at the Property 

were, or should have been, known to Defendant from the outset of their investigation but were 

intentionally ignored in order to avoid full liability and payment under the Policy. 

17. To date, Defendant has refused to make full payment as owed on the Claim. 

18. Plaintiff continues to suffer as a result of Defendant’s delays and wrongful Claim denial. 

19. Defendant misrepresented to Plaintiff that the damage to the Property was not covered 

under the Policy, even though the damage was covered by the Policy. Defendant failed to 

conduct any investigation or provide any estimates to Plaintiff, and misrepresented to Plaintiff

about the coverage of the Policy. Thus, their denial to fully compensate Plaintiff was a 

misrepresentation of the Policy. Defendant’s conduct constitutes a violation of TEX.INS.CODE 

§541.060(a)(1).

20. Defendant failed to attempt in good faith to effectuate a prompt, fair, and equitable 

settlement of Plaintiff’s Claim, when Defendant’s liability was reasonably clear. Specifically, 

Defendant adjusted the entire Claim with an outcome-oriented approach and failed to commence 

a proper investigation of the Claim. This resulted in Defendant’s delayed completion of the 

investigation of the Claim. Defendant failed to use qualified adjusters and inspectors to conduct 

investigations of the Property. Defendant’s conduct constitutes a violation of TEX.INS.CODE 

§541.060(a)(2)(a).

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Plaintiff’s Original Petition Page 5

21. Defendant failed to explain to Plaintiff the reasons for their offer of an inadequate 

settlement. Specifically, Defendant failed to offer Plaintiff adequate compensation, without any 

explanation why full payment was not being made. Furthermore, Defendant did not 

communicate that any future settlements or payments would be forthcoming to pay for the entire 

loss covered under the Policy, nor did Defendant provide any explanation for the failure to 

adequately settle Plaintiff’s claim. Defendant’s conduct constitutes a violation of TEX.INS.CODE 

§541.060(a)(3).

22. Defendant failed to affirm or deny coverage of Plaintiff’s claim within a reasonable time. 

Specifically, Plaintiff did not receive timely indication of acceptance or rejection, regarding the 

full and entire claims, in writing from Defendant. Defendant continued to rely on 

misrepresentations in their inadequate explanation and refused to adjust or fully account for the 

additional documents presented to them evidencing Storm damage to the Property. Defendant’s

conduct constitutes a violation of TEX.INS.CODE §541.060(a)(4).

23. Defendant refused to fully compensate Plaintiff for the Claim without conducting a 

reasonable investigation of the Claim. Rather, Defendant performed an unreasonable outcomeoriented investigation of Plaintiff’s claim, which resulted in a biased, unfair and inequitable 

evaluation of Plaintiff’s Claim. Defendant’s conduct constitutes a violation of TEX.INS.CODE 

§541.060(a)(7).

24. Defendant failed to meet its obligations under the Texas Insurance Code regarding the 

timely acknowledgement of Plaintiff’s claim, beginning an investigation of Plaintiff’s claim and 

requesting all information reasonably necessary to investigate Plaintiff’s claim within the 

statutorily mandated time of receiving notice of Plaintiff’s claim. Defendant’s conduct 

constitutes a violation of TEX.INS.CODE §542.055.

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Plaintiff’s Original Petition Page 6

25. Defendant failed to accept or deny Plaintiff’s full and entire Claim within the statutorily 

mandated time of receiving all necessary information. Defendant’s conduct constitutes a 

violation of TEX.INS.CODE §542.056.

26. Defendant failed to meet its obligations under the Texas Insurance Code regarding 

payment of claims without delay. Specifically, Defendant has delayed full payment of Plaintiff’s

claim longer than allowed and, to date, Plaintiff has not yet received full payment for Plaintiff’s

claim. The Property’s covered damages under the Policy were made known to Defendant at the 

outset of the Claim investigation, yet Defendant refused to comply with their obligations and 

make payments owed under the Policy. Defendant’s conduct constitutes a violation of 

TEX.INS.CODE §541.058.

27. From and after the time Plaintiff’s claim was presented to Defendant, the liability of 

Defendant to pay the full claims in accordance with the terms of the Policy was reasonably clear. 

However, Defendant has refused to pay Plaintiff in full, despite there being no basis whatsoever 

on which a reasonable insurance company would have relied on to deny the full payment. 

Defendant’s conduct constitutes a breach of the common law duty of good faith and fair dealing. 

28. Defendant knowingly and/or recklessly made false representations, as described above, as 

to material facts and/or knowingly concealed material information from Plaintiff. 

29. Because of Defendant’s wrongful acts and omissions, Plaintiff was forced to retain the 

professional services of the law firm who is representing Plaintiff with respect to these causes of 

action.

VII.

CAUSES OF ACTION AGAINST DEFENDANT ATAIN

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Plaintiff’s Original Petition Page 7

30. Defendant Atain is liable to Plaintiff for intentional breach of contract, as well as 

intentional violations of the Texas Insurance Code and intentional breach of the common law 

duty of good faith and fair dealing. 

31. Plaintiff reincorporates and realleges each and every allegation in the preceding 

paragraphs as if fully set forth herein. 

A. Breach of Contract.

32. The Policy is a valid, binding and enforceable contract between Plaintiff and Defendant

Atain. Defendant breached the contract by refusing to perform its obligations under the terms of 

the Policy and pursuant to Texas law. Defendant’s breach proximately caused Plaintiff injuries 

and damages. All conditions precedent required under the Policy have been performed, excused, 

waived or otherwise satisfied by Plaintiff, or Defendant is estopped from raising the issue due to 

Defendant’s prior breach of the insurance contract.

B. Noncompliance With Texas Insurance Code: Unfair Settlement Practices.

33. The conduct, acts, and/or omissions by Defendant constituted Unfair Settlement Practices 

pursuant to TEX. INS. CODE.§541.060(a). All violations under this article are made actionable by 

TEX.INS.CODE §541.151.

34. Defendant’s unfair settlement practice, as described above, of misrepresenting to Plaintiff

material facts relating to the coverage at issue, constitutes an unfair method of competition and 

an unfair and deceptive act or practice in the business of insurance. TEX.INS.CODE §541.060(1).

35. Defendant’s unfair settlement practice, as described above, of failing to attempt in good 

faith to effectuate a prompt, fair, and equitable settlement of the claim, even though Defendant’s

liability under the Policy was reasonably clear, constitutes an unfair method of competition and 

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Plaintiff’s Original Petition Page 8

an unfair and deceptive act or practice in the business of insurance. TEX.INS.CODE 

§541.060(2)(A).

36. Defendant’s unfair settlement practice, as described above, of failing to promptly provide 

Plaintiff with a reasonable explanation of the basis in the Policy, in relation to the facts or 

applicable law, for its offer of a compromise settlement of the claim, constitutes an unfair 

method of competition and an unfair and deceptive act or practice in the business of insurance. 

TEX.INS.CODE §541.060(3). 

37. Defendant’s unfair settlement practice, as described above, of failing within a reasonable 

time to affirm or deny coverage of the claim to Plaintiff or to submit a reservation of rights to 

Plaintiff, constitutes an unfair method of competition and an unfair and deceptive act or practice 

in the business of insurance. TEX.INS.CODE §541.060(4).

38. Defendant’s unfair settlement practice, as described above, of refusing to pay Plaintiff’s

Claim without conducting a reasonable investigation, constitutes an unfair method of 

competition and an unfair and deceptive act or practice in the business of insurance. 

TEX.INS.CODE §541.060(7).

39. Defendant’s conduct described above compelled Plaintiff to initiate a lawsuit to recover 

amounts due under its policy by offering substantially less than the amount ultimately recovered. 

Defendant refused to even offer more than its own grossly undervalued estimates despite actual 

damages which were much greater. This continued failure compelled Plaintiff to file suit. 

TEX.INS.CODE §542.003(5).

C. Prompt Payment Of Claims Violations.

40. The Claim is a claim under an insurance policy with Defendant Atain of which Plaintiff

gave Defendant notice. Defendant is liable for the Claim. Defendant violated the prompt 

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Plaintiff’s Original Petition Page 9

payment of claims provisions of TEX. INS. CODE § 542.051, et seq. by: 

a) Failing to acknowledge receipt of the Claim, commence investigation of the Claim, 

and/or request from Plaintiff all items, statements, and forms that Defendant 

reasonably believed would be required within the time constraints provided by TEX.

INS. CODE §542.055. Specifically, Defendant failed to commence a proper 

investigation of the Claim and failed to request the documents and other forms it 

required to properly adjust Plaintiff’s Claim within a reasonable time and manner.

Defendant delayed proper investigation of this Claim and continued to conduct 

inadequate analysis of the Claim.;

b) Failing to notify Plaintiff in writing of its acceptance or rejection of the Claim within 

the applicable time constraints provided by TEX. INS. CODE §542.056. Defendant 

failed to provide Plaintiff with a proper explanation of their Claim decision. 

Defendant also failed to provide a proper explanation as to why additional time was 

needed for the investigation. Defendant failed to provide any explanation of their 

partial denial and partial payment. Defendant has refused to provide any evidence for 

their claim denial, specifically evidence for their claim that the damages at the 

Property were from a subsequent storm.; and/or by

c) Delaying payment of the Claim following Defendant’s receipt of all items, 

statements, and forms reasonably requested and required, longer than the amount of 

time provided by TEX. INS. CODE §542.058. To date, Defendant has refused to pay the 

full amount owed under the Policy for the Claim. Defendant continues to delay full 

resolution of the Claim by refusing to properly adjust Plaintiff’s Claim. 

41. Defendant’s violations of these prompt payment of claims provisions of the Texas 

Insurance Code are made actionable by TEX.INS.CODE §542.060.

D. Breach Of The Duty Of Good Faith And Fair Dealing.

42. Defendant breached the common law duty of good faith and fair dealing owed to Plaintiff

by denying or delaying payment on the Claim when Defendant knew or should have known that 

its liability to Plaintiff was reasonably clear. Defendant’s conduct proximately caused Plaintiff

injuries and damages.

VIII.

KNOWLEDGE

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Plaintiff’s Original Petition Page 10

43. Each of the Defendant’s acts described above, together and singularly, was done 

“knowingly” as that term is used in the Texas Insurance Code and was a producing cause of 

Plaintiff’s damages described herein. 

IX.

DAMAGES

44. Plaintiff will show that all the aforementioned acts, taken together or singularly, 

constitute the producing causes of the damages sustained by Plaintiff.

45. For breach of contract, Plaintiff is entitled to regain the benefit of Plaintiff’s bargain, 

which is the amount of Plaintiff’s claim, together with attorney fees.

46. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff

is entitled to actual damages, which include the loss of the benefits that should have been paid 

pursuant to the Policy, court costs and attorney’s fees. For knowing conduct of the acts 

complained of, Plaintiff asks for three times Plaintiff’s actual damages. TEX.INS.CODE §541.152.

47. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is

entitled to the amount of Plaintiff’s claim, penalty interest of 18% per annum of the amount of 

Plaintiff’s claim as damages, together with attorney’s fees. TEX.INS.CODE §542.060.

48. For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to 

compensatory damages, including all forms of loss resulting from the insurer’s breach of duty, 

such as additional costs, economic hardship, losses due to nonpayment of the amount the insurer 

owed, exemplary damages and damages for emotional distress. 

49. For the prosecution and collection of this claim, Plaintiff has been compelled to engage 

the services of the law firms whose names are subscribed to this pleading. Therefore, Plaintiff is 

entitled to recover a sum for the reasonable and necessary services of Plaintiff’s attorneys in the 

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Plaintiff’s Original Petition Page 11

preparation and trial of this action, including any appeals to the Court of Appeals and/or the 

Supreme Court of Texas. 

X.

JURY DEMAND

50. Plaintiff hereby requests a jury trial and tenders the appropriate jury fee. 

XI.

REQUEST FOR DISCLOSURE

51. Pursuant to Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose 

the information or material described in Rule 194.2.

XII.

PRAYER

52. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon trial hereof, 

Plaintiff has and recovers such sums as would reasonably and justly compensate Plaintiff in 

accordance with the rules of law and procedure, both as to actual damages, statutory penalties 

and interest, treble damages under the Texas Insurance Code and all punitive and exemplary

damages as may be found. In addition, Plaintiff requests the award of attorney’s fees for the trial 

and any appeal of this case, for all costs of Court on their behalf expended, for pre-judgment and 

post-judgment interest as allowed by law, and for any other and further relief, either at law or in 

equity, to which Plaintiff may show itself to be justly entitled.

Respectfully submitted,

GREEN & KLEIN

By: /s/ Hunter M. Klein 

HUNTER M. KLEIN

State Bar No.: 24082117

klein@greentriallaw.com

ROBERT D. GREEN

State Bar No.: 08368025

green@greentriallaw.com

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Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 11 of 23
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Plaintiff’s Original Petition Page 12

440 Louisiana St., Suite 1900

 Houston, Texas 77002

 (713) 654-9222 - Telephone

 (713) 654-52155 - Fax

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Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 12 of 23
0$5<$1*,(*$5&,$

Bexar County District Clerk

Request for Process

 Style: _________________________________ Vs. ___________________________________ 

Request the following process: (Please check all that Apply)

Citation Notice Temporary Restraining Order Notice of Application for Protective Order 

Temporary Protective Order Precept with hearing Precept without a hearing Writ of Attachment

Writ of Habeas Corpus Writ of Garnishment Writ of Sequestration Capias Other:

1.

Name:

Registered Agent/By Serving:

Address

Service Type: (Check One) Private Process Sheriff &RPPLVVLRQHURI,QVXUDQFH 6$([SUHVV1HZV Hart Beat Courthouse Door

Certified Mail Registered Mail2XWRI&RXQW\ Secretary of State &RQVWDEOH3FWBB

2. 3FWVHUYHVSURFHVVFRXQW\ZLGH

Name:

Registered Agent/By Serving:

Address

Service Type: (Check One) Private Process Sheriff &RPPLVVLRQHURI,QVXUDQFH 6$([SUHVV1HZV Hart Beat Courthouse Door

Certified Mail Registered Mail Out of County Secretary of State &RQVWDEOH3FWBB

3. 3FWVHUYHVSURFHVVFRXQW\ZLGH

Name:

Registered Agent/By Serving:

Address

Service Type: (Check One) Private Process Sheriff &RPPLVVLRQHURI,QVXUDQFH 6$([SUHVV1HZV +art Beat &ourthouseDoor

Certified Mail Registered Mail Out of County Secretary of State &RQVWDEOH3FWBBB

4. 3FWVHUYHVSURFHVVFRXQW\ZLGH

Name:

Registered Agent/By Serving:

Address

Service Type: (Check One) Private Process Sheriff &RPPLVVLRQHURI,QVXUDQFH6$([SUHVV1HZV Hart Beat Courthouse Door

Certified Mail Registered Mail Out of County Secretary of State &RQVWDEOH3FWBBB

3FWVHUYHVSURFHVVFRXQW\ZLGH

Title of Document/Pleading to be Attached to Process:

Name of Attorney/Pro se: Bar Number: 

Address: Phone Number: 

Attorney for Plaintiff Defendant Other 

****IF SERVICE IS NOT PICKED UP WITHIN 14 BUSINESS DAYS, SERVICE WILL BE DESTROYED 

______________

District Court : ______________

** **IF SERVICE IS NOT PICKED UP WITHIN 14 BUSINESS DAYS, SERVICE WILL BE DESTROYED****

San Antonio Aquarium, LLC d/b/a San Antonio Aquarium Atain Specialty Insurance Company

Atain Specialty Insurance Company

Texas Department of Insurance, Chief Clerk Office, P.O. Box 149104, MC 112-2A, Austin, TX 78714-9104

for further forwarding to: Atain Specialty Insurance Company at 30833 Northwestern Highway, Suite 220, Farmington Hills, MI 48334-2582

Plaintiff's Original Petition

Hunter M. Klein 24082117

Green & Klein, 440 Louisiana St., Suite 1900

Houston, Texas 77002

713-654-9222

XX

FILED

4/13/2020 5:59 PM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Maria Abilez

2020CI07043

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 13 of 23
Robert D. Green‡ green@greentriallaw.com

Hunter M. Klein◊ klein@greentriallaw.com

Delaram Falsafi falsafi@greentriallaw.com

John D. Wood, Of CounselÈ wood@greentriallaw.com

------------------------------------------- Website - www.greentriallaw.com

‡Board Certified Personal Injury Trial Law - 

Texas Board of Legal Specialization 

‡Licensed in Texas and Colorado

◊Licensed in Texas and Florida

ÈLicensed in Texas and New York

440 Louisiana Street  Suite 1900  Houston, Texas 77002  (713) 654-9222  (713) 654-2155

April 27, 2020

Via E-Filing

Mary Angie Garcia

Bexar County District Clerk

100 Dolorosa

San Antonio, Texas 78205

RE: Cause No. 2020CI07043; San Antonio Aquarium, LLC d/b/a San Antonio Aquarium 

v. Atain Specialty Insurance Company

Dear Ms. Garcia, 

Plaintiff was missing the appropriate fees for non-certified copies of Plaintiff’s Original 

Petition previously filed. Along with this letter, Plaintiff is paying the correct service fees for 24 

pages of non-certified copies which were inadvertently omitted from the original filing.

If you have questions or need additional information, please feel free to contact our office. 

Sincerely,

Hunter M. Klein

HMK/ag

FILED

4/27/2020 8:11 PM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Brenda Carrillo

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 14 of 23
Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 15 of 23
A PROFESSIONAL CORPORATION

ATTORNEYS AND COUNSELORS

2001 BRYAN STREET, SUITE 1800

DALLAS, TEXAS 75201

ALISA PERKINS 

aperkins@qslwm.com

Phone: (214) 880-1891

Fax: (214) 871-2111

May 8, 2020 

VIA TEXFILE

Bexar County District Court 

Attn: Civil Records 

101 W. Nueva, Suite 217 

San Antonio, Texas 78205 

Re: Cause No. 2017-CI07043; San Antonio Aquarium, LLC vs. Atain Specialty 

Insurance Company; in the 57th District Court of Bexar County, Texas 

Dear Clerk: 

Please consider this our request for a copy of the Court’s case file / docket in the 

above-referenced matter. 

The fee associated with this request will be paid electronically. Once ready, 

please email (or e-serve) the documents to me at aperkins@QSLWM.COM.

 

Thank you in advance for your assistance, and please call me directly should you 

have any questions or need any additional information. 

Sincerely,

 /s/ Alisa Perkins Alisa Perkins 

Legal Assistant 

/adp

FILED

5/8/2020 3:24 PM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Irma Torres

2020CI07043

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 16 of 23
ATAIN’S ORIGINAL ANSWER Page 1 

CAUSE NO. 2020CI07043 

SAN ANTONIO AQUARIUM, LLC d/b/a § IN THE DISTRICT COURT

SAN ANTONIO AQUARIUM, § 

§ 

 Plaintiff, § 

§ 

v. § 57TH JUDICIAL DISTRICT

§ 

ATAIN SPECIALTY INSURANCE § 

COMPANY, § 

§ 

 Defendant. § BEXAR COUNTY, TEXAS

DEFENDANT ATAIN SPECIALTY INSURANCE COMPANY’S 

ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW Defendant Atain Specialty Insurance Company (“Atain”), Defendant in 

the above-styled and numbered cause, and hereby answers Plaintiff San Antonio Aquarium, LLC 

d/b/a San Antonio Aquarium’s (“Plaintiff”) Original Petition (the “Petition”) in this matter, and 

would respectfully show the Court as follows: 

I.

GENERAL DENIAL

Atain denies each and every, all and singular, the material allegations contained in 

Plaintiff’s Petition and demands strict proof thereof. 

II.

AFFIRMATIVE DEFENSES

1. First Affirmative Defense: Plaintiff’s extra-contractual claims are barred by the 

applicable two-year statute of limitations pursuant to Tex. Ins. Code. § 541.162 and common law. 

Plaintiff’s claims accrued when Atain paid Plaintiff $165,893.55 on or about August 12, 2016, 

FILED

5/22/2020 10:32 AM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Krystal Torres

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 17 of 23
ATAIN’S ORIGINAL ANSWER Page 2

which Plaintiff now alleges was insufficient for all covered damages under the Atain Policy. 

Accordingly, Plaintiff’s claims are barred by the two-year statute of limitations as Plaintiff did not 

file this lawsuit until April 13, 2020, well over two years from the date of accrual of its claims. 

2. Second Affirmative Defense: On or about August 12, 2016, Plaintiff submitted a 

sworn proof of loss to Atain claiming $165,893.55 owed under the Atain Policy. Shortly thereafter, 

Atain provided Plaintiff with a check in the amount of $165,893.55, which Plaintiff accepted 

without reservation. Pursuant to the doctrine of accord and satisfaction, Plaintiff agreed that this 

amount was sufficient and acceptable, and Plaintiff is barred from now claiming otherwise. 

3. Third Affirmative Defense: At all times relevant hereto, Atain acted reasonably 

and in good faith in its dealings with Plaintiff. 

4. Fourth Affirmative Defense: Atain conducted a reasonable investigation of 

Plaintiff’s claim. 

5. Fifth Affirmative Defense: The Atain Policy provides coverage only for direct 

physical loss of or damage to Covered Property occurring during the Policy Period and caused by 

a Covered Cause of Loss. See Atain Policy, BUILDING AND PERSONAL PROPERTY 

COVERAGE FORM, para. A. Atain’s investigation of Plaintiff’s claim determined that certain 

of Plaintiff’s property sustained minor direct physical loss or damage during the Policy Period 

caused by a Covered Cause of Loss, and Atain paid Plaintiff all amounts owed under the Atain 

Policy for such damage. 

4. Sixth Affirmative Defense: The Atain Policy excludes coverage for damage that 

occurred prior to inception of the policy. See Atain Policy, EXISTING DAMAGE EXCLUSION 

ENDORSEMENT. Atain’s investigation of Plaintiff’s claim determined that Plaintiff’s property 

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ATAIN’S ORIGINAL ANSWER Page 3

sustained damage prior to the inception of the policy. Such damage is not covered by the Atain 

Policy.

5. Seventh Affirmative Defense: The Atain Policy excludes loss or damage caused 

by or resulting from, among other things, wear and tear, decay, deterioration, settling and cracking. 

See Atain Policy, CAUSES OF LOSS – SPECIAL FORM, para. B.2.d.(1), (2), and (4). Atain’s

investigation determined that certain claimed damage to Plaintiff’s property was caused by one or 

more of these excluded causes. There is no coverage for such damage to Plaintiff’s property.

6. Eighth Affirmative Defense: The Atain Policy excludes loss or damage caused 

by or resulting from continuous or repeated seepage or leakage of water occurring over a period 

of 14 days or more. See Atain Policy, CAUSES OF LOSS – SPECIAL FORM, para. B.2.f. To 

the extent it is determined that claimed damage to Plaintiff’s property resulted from such 

continuous or repeated seepage or leakage of water, there is no coverage for such damage.

7. Ninth Affirmative Defense: The Atain Policy excludes loss or damage caused by 

or resulting from faulty, inadequate, or defective construction, repairs, maintenance, or materials 

used in repair. See Atain Policy, CAUSES OF LOSS – SPECIAL FORM, para. B.3.c.(2)-(4). 

Atain’s investigation determined that certain claimed damage to Plaintiff’s property was caused 

by one or more of these excluded causes. There is no coverage for such damage to Plaintiff’s 

property. 

8. Tenth Affirmative Defense: The Atain Policy excludes loss or damage caused by 

or resulting from neglect of the insured to use all reasonable means to save and preserve property 

from further damage at and after the time of loss. See Atain Policy, CAUSES OF LOSS –

SPECIAL FORM, para. B.2.m. Upon information and belief, no steps have been taken by 

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 19 of 23
ATAIN’S ORIGINAL ANSWER Page 4

Plaintiff to save and preserve its property from further damage at and after the time of loss. There

is no coverage for loss or damage under these circumstances.

9. Eleventh Affirmative Defense: The Atain Policy requires as a condition precedent 

to coverage that all reasonable steps be taken to protect Covered Property from further damage. 

See Atain Policy, BUILDING AND PERSONAL PROPERTY COVERAGE FORM, para. 

E.3.a.(4). Upon information and belief, no steps have been taken to protect Plaintiff’s property

from further damage after the time of loss. The failure to do so negates coverage under the Atain 

Policy.

10. Twelfth Affirmative Defense: The Atain Policy requires that the insured provide 

notice of its intention to repair or replace damaged property within 180 days of loss in order to be 

entitled to recover replacements costs. See Atain Policy, BUILDING AND PERSONAL 

PROPERTY COVERAGE FORM, para. G.3.c. Plaintiff did not provide notice of its intent to 

repair or replace damaged property within 180 days of loss. Accordingly, Plaintiff is not entitled 

to recover replacement costs.

11. Thirteenth Affirmative Defense: The Atain Policy requires that replacement 

costs are not payable until lost or damaged property is actually repaired or replaced, and unless the 

repairs or replacement are made as soon as reasonably possible after the loss or damage. See Atain 

Policy, BUILDING AND PERSONAL PROPERTY COVERAGE FORM, para. G.3.d. To 

the extent it is determined that any allegedly lost or damaged property has not been repaired or 

replaced, or that such repairs or replacement were not made as soon as reasonably possible after 

the loss or damage, there is no coverage for replacement costs under the Atain Policy.

12. Fourteenth Affirmative Defense: Plaintiff was required to maintain coverage 

totaling at least 80% of the replacement value of its property. See Atain Policy, BUSINESS AND 

Case 5:20-cv-00646 Document 1-3 Filed 05/29/20 Page 20 of 23
ATAIN’S ORIGINAL ANSWER Page 5

PERSONAL PROPERTY COVERAGE FORM, para. F.1. Plaintiff failed to do so and was, 

therefore, underinsured. Accordingly, any claim for replacement costs is subject to a coinsurance 

penalty of approximately 21.1%. 

13. Fifteenth Affirmative Defense: Plaintiff was required as a condition to coverage 

to allow Atain to inspect Plaintiff’s property and otherwise cooperate in the investigation of 

Plaintiff’s Claim. See Atain Policy, BUSINESS AND PERSONAL PROPERTY COVERAGE 

FORM, paras. E.3.a.(6) and E.3.a.(8). Plaintiff’s failure to respond to Atain’s request to inspect 

Plaintiff’s property breached these conditions and negates any coverage under the Atain Policy.

14. Sixteenth Affirmative Defense: Plaintiff was required as a condition to coverage 

to allow Atain to examine a representative of Plaintiff under oath. See Atain Policy, BUSINESS 

AND PERSONAL PROPERTY COVERAGE FORM, para. E.3.b. Plaintiff’s failure to 

respond to Atain’s request to examine Plaintiff’s representative under oath breached this condition 

and negated any coverage under the Atain Policy.

15. Seventeenth Affirmative Defense: Atain’s liability, if any, may be limited, 

barred, or reduced to the extent other insurance contracts may respond to the alleged losses and 

damages claimed in this case. 

16. Eighteenth Affirmative Defense: Atain, without admitting any liability and 

expressly denying all liability, pleads its entitlement to an offset and/or credit for any payment or 

other consideration received by Plaintiff from any source, including Atain, for the alleged losses 

and damages. 

17. To the extent any affirmative defenses pleaded herein are contradictory, mutually 

exclusive, or otherwise inconsistent, Atain pleads such contradictory, mutually exclusive, or 

inconsistent affirmative defenses in the alternative. 

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ATAIN’S ORIGINAL ANSWER Page 6

18. Atain’s liability, if any, may be limited, barred, or reduced, in whole or in part, due 

to additional affirmative defenses that cannot now be articulated by Atain. Accordingly, Atain 

reserves its right to supplement this answer and raise affirmative defenses as may become 

applicable upon further amplification of Plaintiff’s claims and discovery of information presently 

unknown to Atain. 

III.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant Atain Specialty Insurance 

Company prays that Plaintiff takes nothing by this suit, and for such other and further relief, at law 

or in equity, to which it is justly entitled. 

Respectfully submitted, 

/s/ Michael D. Feiler

MICHAEL D. FEILER

State Bar No. 24055475

mfeiler@qslwm.com

MATT R. PICKELMAN

State Bar No. 24013328

mpickelman@qslwm.com

JONATHAN A. LAUTIN

State Bar No. 24092669

jlautin@qslwm.com

QUILLING, SELANDER, LOWNDS,

WINSLETT & MOSER, P.C.

2001 Bryan Street, Suite 1800

Dallas, Texas 75201 

(214) 871-2100 (Telephone) 

(214) 871-2111 (Facsimile) 

ATTORNEYS FOR DEFENDANT 

ATAIN SPECIALTY INSURANCE 

COMPANY

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ATAIN’S ORIGINAL ANSWER Page 7

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of May 2020, a true and correct copy of the above and 

foregoing was served upon all counsel of record in accordance with the Texas Rules of Civil 

Procedure. 

/s/ Jonathan A. Lautin

JONATHAN A. LAUTIN

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