Court of Appeals of Texas, Fifth District, Dallas
IN RE ACE AMERICAN INSURANCE COMPANY, UNDERWRITERS SAFETY AND CLAIMS, INC., AND DAWNMONIQUE LEE, Relators
Original Proceeding from the 101st Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-17-02114
Justices Lang, Myers, and Boatright
were sued in state district court in Dallas County, Texas.
They filed a motion to dismiss the case based on forum non
conveniens, arguing that the real party in interest's
claims should be litigated in Arizona. The court denied
relators' motion. They have filed a petition for writ of
mandamus in this court. We conditionally grant the writ.
real party in interest, Doug Vates, is the plaintiff in the
underlying suit. Vates is an Arizona resident who injured his
shoulder while working at a bakery in Arizona. He filed a
workers' compensation claim with the Industrial
Commission of Arizona. Ace American Insurance Company insured
the Vates workers' compensation claim, and it assigned
Dawnmonique Lee, a Dallas County resident who was an employee
of Underwriters Safety and Claims, Inc., to adjust the claim.
Industrial Commission of Arizona ruled that Vates had
suffered a permanent partial disability and authorized
medical treatment for him. The Commission also stated that it
would authorize permanent benefits and medical maintenance in
a separate notice.
the Commission issued another notice, Vates sued Ace,
Underwriters, and Lee in Texas. Vates alleged that Ace
refused to pay insurance benefits in a timely manner and that
its refusal breached the duty of good faith and fair dealing
under Arizona law. He also claimed that Underwriters and Lee
did not adequately investigate his claim and that they had
decided to ignore evidence of his injury. Vates argued that
this aided and abetted Ace's breach and asked for actual
and punitive damages under Arizona law. Relators filed a
motion to dismiss based on forum non conveniens and, when it
was denied, sought mandamus relief here.
entitled to mandamus relief, a relator must show both that
the trial court has clearly abused its discretion and that
relator has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A court abuses its discretion if its
decision is arbitrary, unreasonable, or without reference to
guiding principles. In re Pirelli Tire,
L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (orig.
proceeding). An adequate remedy by appeal does not exist when
a motion to dismiss for forum non conveniens is erroneously
denied. Id. at 679. Mandamus relief is available
from the denial of a motion to dismiss based on forum non
conveniens. In re Bridgestone Ams. Tire Operations,
LLC, 459 S.W.3d 565, 569 (Tex. 2015) (orig. proceeding).
their petition for writ of mandamus, relators contend that
the suit is properly brought in Arizona under section 71.051
of the Texas Civil Practice and Remedies Code, which provides
that, if a court of this state finds that a personal injury
claim "would be more properly heard in a forum outside
this state, the court shall decline to exercise jurisdiction
under the doctrine of forum non conveniens and shall stay or
dismiss the claim or action." Tex. Civ. Prac. & Rem.
Code Ann. § 71.051(b) (West Supp. 2017). When making
this finding, a court must consider six factors. Id.
We will discuss them one by one.
alternate forum exists in which the claim or action may be
does not dispute this factor. In addition, the relators
stated in their motion to dismiss that they are amenable to
jurisdiction in Arizona. The first factor under section
71.051(b) weighs in favor of litigating Vates's claims
alternate forum provides an adequate remedy
brought his claims under Arizona law. He does not dispute
that the second factor favors a suit in Arizona.
of the claim or action in the courts of this state would work