IN RE COLONIAL COUNTY MUTUAL INSURANCE COMPANY, Relator
Original Proceeding on Petition for Writ of Mandamus.
consists of Justices Lloyd, Goodman, and Landau.
Colonial County Mutual Insurance Company
("Colonial"), has filed a petition for writ of
mandamus challenging the trial court's order denying
abatement of certain extra-contractual claims arising from an
uninsured/underinsured motorist coverage
dispute. We conditionally grant relief.
original proceeding arises from a personal injury lawsuit
filed by Abigail Shelger against Lisselotte Ortiz for damages
arising from a motor vehicle accident. Shelger later added
Colonial as a defendant, asserting that Colonial failed to
pay uninsured/underinsured motorist (UIM) benefits under a
policy issued by Colonial.Shelger asserted causes of action
against Colonial for breach of contract, as well as
extra-contractual causes of action for breach of the common
law duty of good faith and fair dealing, and violations of
the Texas Insurance Code and Texas Deceptive Trade Practices
filed a motion to sever and abate Shelger's
extra-contractual claims from her underlying UIM claim.
Shelger filed a response agreeing that severance and
abatement of her common law bad faith claims was proper but
requested that her claims for statutory violations only be
severed and not abated. The then-presiding judge, the
Honorable Caroline Baker, granted Colonial's motion in
part, signing an order severing the extra-contractual claims
but abating discovery only as to Shelger's common law bad
faith claim. The order provides that discovery is not abated
as to the severed causes of action for violation of Sections
541 and 542 of the Texas Insurance Code and violation of the
Texas Deceptive Trade Practices Act (collectively, the
"Statutory Extra-contractual Claims").
later filed a motion to reconsider with the successor trial
court judge, the Honorable Donna Roth, requesting that the
court similarly abate the Statutory Extra-contractual Claims
as it abated the common law bad faith claim. After a hearing
on the motion, the trial court denied Colonial's motion
to reconsider. This mandamus petition followed. Our Court
requested a response to the petition from the real party in
interest but no response was filed.
will issue only to correct a trial court's clear abuse of
discretion for which the relator has no adequate remedy at
law. In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135-36 (Tex. 2004) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.
proceeding). A clear abuse of discretion occurs when the
trial court's decision is so arbitrary and unreasonable
that it amounts to clear error. See Walker, 827
S.W.2d at 839-40 (quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Because a
trial court has no discretion in determining what the law is,
the trial court abuses its discretion if it clearly fails to
analyze or apply the law correctly. See id. at 840.
"To satisfy the clear abuse of discretion standard, the
relator must show 'that the trial court could reasonably
have reached only one decision.'" Liberty
Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630
(Tex. 1996) (orig. proceeding) (quoting Walker, 827
S.W.2d at 840). "In determining whether appeal is an
adequate remedy, [we] consider whether the benefits outweigh
the detriments of mandamus review." In re BP Prods.
N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig.
of Extra-contractual Claims
circumstances, a trial court's decision to grant or deny
a motion to abate is within the court's discretion.
See Project Eng'g USA Corp. v. Gator Hawk, Inc.,
833 S.W.2d 716, 724 (Tex. App.-Houston [1st Dist.] 1992, no
writ); In re Am. Nat. Cnty. Mut. Ins. Co., 384
S.W.3d 429, 435 (Tex. App.-Austin 2012, orig. proceeding).
Colonial asserts that the trial court abused its discretion
in denying abatement of discovery regarding the severed
Statutory Extra-contractual Claims. We agree.
motorist cases differ from other insurance disputes because,
unlike most first-party cases in which the terms of the
policy alone dictate the outcome, UIM coverage hinges on the
liability of the alleged uninsured/underinsured, at-fault
third-party motorist under applicable tort law. See
Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809,
818 (Tex. 2006) (citing Henson v. S. Farm Bur. Cas. Ins.
Co., 17 S.W.3d 652, 653-54 (Tex. 2000)). Consequently,
"the insurer's contractual obligation to pay
benefits does not arise until liability and damages are
determined." Id.; see also In re United Fire
Lloyds,327 S.W.3d 250, 255 (Tex. App.-San Antonio ...