                                NUMBER 13-11-00412-CV

                                   COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                     IN RE OLD AMERICAN COUNTY MUTUAL
                       FIRE INSURANCE COMPANY, ET AL.


                          On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

                  Before Justices Benavides, Vela, and Perkes
                    Memorandum Opinion by Justice Vela1

       Relators, Old American County Mutual Fire Insurance Company, Pronto General

Agency, Beatrice Jimenez, and Raquel Hinojosa (collectively "Old American"),2 filed a

petition for writ of mandamus on July 6, 2011, seeking to compel the trial court to vacate

its April 29, 2011 "Order Denying Defendants' Motion to Sever and Abate Extra-

       1
          See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in
any other case," but when "denying relief, the court may hand down an opinion but is not required to do
so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
       2
         Pronto General Agency is the authorized claims representative of Old American. Beatrice
Jimenez and Raquel Hinojosa are two individual adjusters who were employed by Pronto General
Agency during the course of the underlying proceedings.
Contractual Claims" and to compel the trial court to sever and abate the extra-

contractual claims. We conditionally grant mandamus relief.

                                    I. BACKGROUND

       Old American's petition for writ of mandamus alleges that the underlying suit

arose from a motor vehicle accident involving plaintiffs Dina Montemayor, Krystal

Montemayor, Lizette Garza, and the driver of another vehicle, Pasqual I. Vasquez.

Vasquez is not a party to these proceedings. Plaintiffs asserted in their pleading that

Dina Montemayor's vehicle was stopped behind a long line of vehicles at the Progreso

Port of Entry to Mexico in Progreso, Texas, when Vasquez rear-ended her car. Krystal

Montemayor and Lizette Garza were passengers in Dina's vehicle at the time of the

collision.   According to plaintiffs' pleadings, they received personal injuries in the

collision.   Plaintiffs further asserted that Vasquez did not have insurance, thus the

plaintiffs brought a claim against Old American for uninsured/underinsured motorist

("UM/UIM") benefits pursuant to a standard automobile policy issued by Old American

to Dina Montemayor.        The plaintiffs' urged that their medical expenses totaled

$11,049.69 for Dina Montemayor, $15,938.49 for Krystal Montemayor, and $8,698.10

for Lizette Garza. Old American offered to settle Dina's claims for $1,000.00, offered to

settle Krystal's claims for $1,250.00, and offered nothing to settle Lizette's claims. In

Plaintiffs' First Amended Response to Defendants' Motion to Sever and Abate Extra-

Contractual Claims, they acknowledge that there had been no settlement with the third

party tortfeasor.

       The plaintiffs brought suit against Old American for breach of contract to pay

UM/UIM benefits, breach of the duty of good faith and fair dealing for its refusal to pay



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the claims when liability was "reasonably clear," violations of the Texas Insurance Code,

and violations of the Texas Business and Commerce Code.                Old American filed a

motion to sever and abate the plaintiffs' extra-contractual claims from the underlying

claim for UM/UIM benefits. According to Old American's motion, the plaintiffs cannot

bring an extra-contractual damage claim until Old American's contractual liability has

been determined and these separate and distinct causes of action must be severed.

Old American argued in its petition that severance and abatement is mandatory to

prevent prejudice, unnecessary litigation, and discovery quagmires. Old American also

asserted that a severance was necessary because the introduction of evidence

pertaining to the settlement offers, the policy limits, and the facts concerning its handling

of the claims, as they relate to the bad faith claims, would prejudice Old American in the

trial of the UM/UIM claim, and would confuse, complicate, and considerably lengthen

the trial.

        The plaintiffs filed a response and an amended response to the motion to sever.

The plaintiffs contended that they were not obligated to obtain a judgment against the

uninsured motorist and Old American's offers of settlement, which were unreasonably

low or nonexistent, were not made in good faith. The plaintiffs also alleged that their

claims were interwoven and thus could not be severed and Old American would not

suffer injustice or prejudice if the claims were not severed.       In the alternative, the

plaintiffs sought a bifurcated trial or severance without abatement.

        The trial court ultimately denied the motion to sever and abate. The record does

not reflect a ruling on the plaintiffs' request for bifurcation. This original proceeding

ensued.



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       By one issue, Old American contends that the trial court abused its discretion in

refusing to sever and abate the plaintiffs' extra-contractual claims from the underlying

contractual UM/UIM claims. Citing Brainard v. Trinity Universal Insurance Company,

Old American contends that it has no contractual duty to pay benefits until the plaintiffs

obtain a judgment establishing the liability and the underinsured status of the other

motorist. 216 S.W.3d 809, 818 (Tex. 2006). Old American asserts that plaintiffs have

not obtained such a judgment, and therefore, Old American currently has no contractual

duty to pay their UIM/UM claims. Old American argues that severance is required for

these unripe claims because the trial court lacks jurisdiction over them and further,

because manifest injustice would occur if the contractual and extra-contractual claims

were tried together. Old American also asserts that the extra contractual claims "are at

best premature, and the resources of the parties and the trial court should not be

expended on claims that may never become viable, or which may become moot based

on the outcome of the trial of the UM/UIM claim." The Court requested and received a

response to the petition for writ of mandamus from plaintiffs as the real parties in

interest, and Old American filed a reply to this response.

                                 II. STANDARD OF REVIEW

       To be entitled to the extraordinary relief of a writ of mandamus, Old American

must show that the trial court abused its discretion and that there is no adequate

remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.

2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to constitute a clear and prejudicial error of law or if it

clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., LP, 164



                                                4
S.W.3d 379, 382 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).         "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 First 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. proceeding). Appeal is an inadequate remedy

when a trial court's failure to sever contractual and extra-contractual claims constitutes

an abuse of discretion. In re Allstate Ins. Co., 232 S.W.3d 340, 342 (Tex. App.—Tyler

2007, orig. proceeding); see In re Prudential Ins. Co. of Am., 148 S.W.3d at 136; In re

Allstate Tex. Lloyds, 202 S.W.3d 895, 896 (Tex. App.—Corpus Christi 2006, orig.

proceeding).

               III. SEVERANCE OF CONTRACTUAL AND EXTRA-CONTRACTUAL CLAIMS

      Severance is governed by Texas Rule of Civil Procedure 41. See TEX. R. CIV. P.

41. Rule 41 provides, in part, that "[a]ctions which have been improperly joined may be

severed . . . on such terms as are just. Any claim against a party may be severed and

proceeded with separately."     See id.    Claims are properly severable if:      (1) the

controversy involves more than one cause of action; (2) the severed claim is one that

would be the proper subject of a lawsuit if independently asserted; and (3) the severed

claim is not so interwoven with the remaining action that it involves the same facts and

issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.

1990). The controlling reasons for a severance are to do justice, avoid prejudice, and



                                               5
promote convenience. F.F.P. Op. Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.

2007).

         The trial court has "broad" discretion in the severance of causes of action.

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984); Black v. Smith, 956

S.W.2d 72, 75 (Tex. App.—Houston [14th Dist.] 1997, orig. proceeding). However, that

discretion is not unlimited. See In re Gen. Agents Ins. Co. of Am., Inc., 254 S.W.3d

670, 673–74 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). The trial court

has a duty to order severance when "all of the facts and circumstances of the case

unquestionably require a separate trial to prevent manifest injustice, and there is no fact

or circumstance supporting or tending to support a contrary conclusion, and the legal

rights of the parties will not be prejudiced thereby." Womack v. Berry, 291 S.W.2d 677,

682–83 (Tex. 1956) (orig. proceeding).

         Our analysis of the issue herein is controlled by Liberty National Fire Insurance

Company v. Akin, the leading Texas Supreme Court case involving the severance of

contractual and extra-contractual claims. See generally 927 S.W.2d at 627. In Akin,

the Texas Supreme Court considered whether or not severance was required in a case

involving breach of contract and extra-contractual claims against an insurer. Id. at 628.

The supreme court analyzed the contractual and extra-contractual claims presented by

the plaintiff and held the trial court did not abuse its discretion in denying the insurance

company's motions for severance and abatement. Id. at 630. While refusing to grant

mandamus relief, the supreme court rejected "an inflexible rule that would deny the trial

court all discretion and . . . require severance in every case [involving bad-faith

insurance claims], regardless of the likelihood of prejudice." See id. Ultimately, the



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court concluded that the contractual and extra-contractual claims were interwoven, with

most evidence admissible on both claims, and that any prejudicial effect could be

ameliorated by appropriate limiting instructions. Id.

              A severance may nevertheless be necessary in some bad faith
       cases. A trial court will undoubtedly confront instances in which evidence
       admissible only on the bad faith claim would prejudice the insurer to such
       an extent that a fair trial on the contract claim would become unlikely.
       One example would be when the insurer has made a settlement offer on
       the disputed contract claim. As we have noted, some courts have
       concluded that the insurer would be unfairly prejudiced by having to
       defend the contract claim at the same time and before the same jury that
       would consider evidence that the insurer had offered to settle the entire
       dispute. While we concur with these decisions, we hasten to add that
       evidence of this sort simply does not exist in this case. In the absence of
       a settlement offer on the entire contract claim, or other compelling
       circumstances, severance is not required.

Id. (internal citations omitted).

       Following Akin, numerous intermediate courts of appeals have considered

whether it is an abuse of discretion for a trial court to refuse to order a severance of

contractual claims from bad faith claims when a settlement offer has been made. See,

e.g., In re Miller, 202 S.W.3d 922, 925–26 (Tex. App.—Tyler 2006, orig. proceeding

[mand. denied]); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex. App.—

Amarillo 2001, orig. proceeding). In some instances, parties sought bifurcation of the

contractual claims from the bad faith claims as an alternative to severance. See In re

Travelers Lloyds of Tex. Ins. Co., 273 S.W.3d 368, 373–75 (Tex. App.—San Antonio

2008, orig. proceeding); In re Allstate County Mut. Ins. Co., 209 S.W.3d 742, 746–47

(Tex. App.—Tyler 2006, orig. proceeding); In re Allstate Tex. Lloyds, 202 S.W.3d at

900.




                                                7
       The San Antonio Court of Appeals recently considered the issues of severance

and abatement in the context of a UM/UIM case. See In re United Fire Lloyds, 327

S.W.3d 250, 257 (Tex. App.—San Antonio 2010, orig. proceeding). Utilizing the Texas

Supreme Court's decision in Brainard v. Trinity Universal Ins. Co., the court granted

mandamus relief to compel severance and abatement of a UIM claim from related bad

faith claims:

       [We] hold that United Fire is under no contractual duty to pay UIM benefits
       until Garcia establishes the liability and underinsured status of the other
       motorist. Therefore, United Fire should not be required to put forth the
       effort and expense of conducting discovery, preparing for a trial, and
       conducting voir dire on bad faith claims that could be rendered moot by
       the portion of the trial relating to UIM benefits. To require such would not
       do justice, avoid prejudice, and further convenience. Under these
       circumstances, we conclude the trial court abused its discretion in
       bifurcating the case instead of severing and abating the UIM claim from
       the bad faith claims.

See id.3 The court concluded that United Fire did not have an adequate remedy by

appeal because if mandamus were not granted, it stood to lose substantial rights by

being required to prepare for claims that may be rendered moot and may have not even

yet accrued. See id. (citing U.S. Fire Ins. Co. v. Millard, 847 S.W.2d. 668, 675 (Tex.

App—Houston [1st Dist.] 1993, orig. proceeding); In re Trinity Universal Ins. Co., 64

S.W.3d at 468).       As stated by the Amarillo Court of Appeals, "Texas case law

establishes that abatement of extra-contractual claims is required in most instances in

which an insured asserts a claim to UIM benefits." In re Farmers Tex. Cty. Mut. Ins.




       3
            In so holding, the San Antonio Court of Appeals acknowledged that Brainard involved the
determination as to when presentment of a contract claim was made in order to determine whether a
party was entitled to attorney's fees in accordance with Chapter 38 of the Texas Civil Practice and
Remedies Code rather than severance and abatement in the context of a UIM claim. See In re United
Fire Lloyds, 327 S.W.3d 250, 257 (Tex. App.—San Antonio 2010, orig. proceeding) (discussing Brainard
v. Trinity Universal Ins. Co., 216 SW.3d 809, 818 (Tex. 2006)).

                                                     8
Co., No. 07-11-00396-CV, 2011 Tex. App. LEXIS 8190, *2–3 (Tex. App.—Amarillo Oct.

17, 2011, orig. proceeding) (op.).

       Here, Old American is under no contractual duty to pay UM/UIM benefits until the

plaintiffs establish the liability and underinsured status of the other motorist.      The

pleadings filed by plaintiffs, in response to the motion to sever, admit that there has

been no settlement or judgment entered against the uninsured motorist. It is undisputed

that Old American offered $1,000 and $1,250 to settle the claims of Dina Montemayor

and Krystal Montemayor. Plaintiffs pleadings are unequivocal assertions of fact, and

thus constitute a judicial admission that there has been no judgment against the

uninsured motorist. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905

(Tex. 2000). Therefore, Old American should not be required to put forth the effort and

expense of conducting discovery, preparing for a trial, and conducting voir dire on bad

faith claims that could be rendered moot by the portion of the trial relating to UM/UIM

benefits.   To require such would not do justice, avoid prejudice, and further

convenience.    Under these circumstances, we conclude the trial court abused its

discretion in refusing to sever the UM/UIM claims from the bad faith claims and abate

the bad faith and exemplary damage claims pending the determination of Old

American's liability for the UM/UIM damages under the policy.

                                     IV. CONCLUSION

       We conclude the trial court abused its discretion in denying Old American's

motion to sever and abate the plaintiffs' extra-contractual claims.       Accordingly, we

conditionally grant the petition for writ of mandamus. The trial court is ordered to vacate

the April 29, 2011 "Order Denying Defendants' Motion to Sever and Abate Extra-



                                                9
Contractual Claims," and to grant "Defendants' Motion to Sever and Abate Extra-

Contractual Claims." The writ will issue only if the trial court fails to comply.




                                                          ROSE VELA
                                                          JUSTICE


Delivered and filed the
16th day of February, 2012.




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