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Watkins v. Markel Insurance Co.

United States District Court, N.D. Texas, Dallas Division

April 17, 2019

CRAIG WATKINS, Plaintiff,
v.
MARKEL INSURANCE COMPANY, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         Defendant Markel Insurance Company filed a Motion to Set Aside Default Judgment, see Dkt. No. 3, which United States District Judge Sam A. Lindsay has referred to the undersigned United States magistrate judge for hearing, if necessary, and for findings and recommendation, see Dkt. No. 4.

         Plaintiff Craig Watkins has not filed a response, and the time to do so has passed.

         For the reasons explained below, the Court should grant the Motion to Set Aside Default Judgment [Dkt. No. 3].

         Background

         On June 27, 2018 Plaintiff filed his Original Petition in the 14th Judicial District Court of Dallas County, Texas, styled Watkins v. Markell Insurance Company, No. DC-08528. Plaintiff asserted claims against Defendant for violations of the Texas Deceptive Trade Practices Act and common-law fraud based on allegations of lack of payment or underpayment of insurance claims. See Dkt. No. 3-1 at 3-9. The Original Petition stated:

Defendant MARKELL INSURANCE COMPANY, a Corporation doing business in Texas, may be served with process through its Attorney: Chris Avery, Thompson Coe, ONE RIVERWAY STE 1400, HOUSTON, TEXAS 77056. Service of said Defendant as described above can be effected by personal service.

Id. at 3.

         Plaintiff attempted to serve Defendant by serving its former attorney, Chris Avery of Thompson, Coe, Cousins & Irons. See Id. at 11-12 (Citation and Affidavit of Service). The affidavit of service states that a true copy of the citation was served on “Attorney Chris Avery”on July 9, 2018, at the law firm's place of business at 1 Riverway #1400, Houston, TX 77056. See Id. at 11. The citation is directed to “Attorney Chris Avery” of “Thomson Coe” and commands him to appear and file an answer. See Id. at 12. Other than the style of the case, Defendant's name, address, or the name of any employee or officer of Defendant do not appear in the citation. See id.

         Chris Avery notified Plaintiff, who represents himself in this case, that he was not an authorized agent for service of process on Defendant. See Id. at 15-18, 20 (Affidavit of Chris H. Avery). In a July 20, 2018 letter, Mr. Avery stated:

Next, your petition improperly names me as an agent for service of process. I am not and have never been an authorized agent for service of process on behalf of Markel or any other insurance entity. Texas law clearly requires that suit be served on a corporation's registered agent, not any other party. As a result, any attempts to serve the wrong defendant through the wrong agent are ineffective.

Id. at 20. Renee Maratea, the Manager of Insurance and Reinsurance Support for Defendant's claims service manager, attests to the fact that no representative of Defendant was ever served by Plaintiff in this action and that Defendant did not authorize Mr. Avery to accept service. See Id. at 24-26 (Affidavit of Renee Maratea).

         On August 31, 2018, the state court dismissed the pending action for want of prosecution. See Id. at 28. On September 12, 2018, Plaintiff filed a motion to reinstate, stating as grounds that he had inadvertently missed the discovery deadline. See Id. at 30-33. On December 6, 2018, the court granted the motion and reinstated the case. See Id. at 38.

         Plaintiff approved default judgment drafts for the state court on October 30, 2018 and November 27, 2018, which stated that Defendant had been “duly cited to appear” but “failed to file an ...


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