
DISSENTING OPINION
Nos. 04-05-00826-CV & 04-05-00827-CV
TITAN INDEMNITY COMPANY, United States Fidelity & Guaranty Company, 
St. Paul Fire & Marine Insurance Company, and St. Paul Travelers Companies, Inc. ,
Appellants
v.
OLD SOUTH INSURANCE GROUP, INC. and Carroll Hood ,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court Nos. 2005-CI-07752 & 2005-CI-07754
Honorable John D. Gabriel, Jr. , Judge Presiding



Opinion by: Catherine Stone , Justice
Dissenting opinion by: Alma L. López, Chief Justice


Sitting: Alma L. López, Chief Justice
  Catherine Stone , Justice
  Sarah B. Duncan , Justice


Delivered and Filed: December 27, 2006
   While acknowledging that the trial court is to determine a witness's credibility, the majority states that we are required to
judge the actions taken by St. Paul from Schwartz's "tunnel vision" mind set.  In doing so, the majority necessarily
substitutes its judgment for that of the trial court in determining that Schwartz's testimony was credible despite evidence
being presented that: (1) Schwartz received the three separate petitions with different styles and cause numbers by three
separate e-mails with different subject lines containing each of the plaintiffs' names; (2) Schwartz received a second set of
the petitions by e-mail a few days later; (3) HICO and Old South were represented by two different attorneys; and (4) Titan's
general counsel and other St. Paul employees recognized that there were three separate lawsuits.  Even if this evidence does
not directly controvert Schwartz's testimony, it calls his credibility into question.  Furthermore, because subjective state of
mind can be proven by circumstantial evidence, I question the need for evidence directly controverting Schwartz's
testimony.   See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); Transportation Ins. Co. v. Moriel, 879
S.W.2d 10, 23 (Tex. 1994).
 This court has joined countless other courts in defining conscious indifference as follows:
 Conscious indifference is generally defined as the failure to take some action that would seem obvious to a reasonable
person under similar circumstances.


Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex. App.--San Antonio 2002, pet. denied).  I believe the trial
court was required to look at the circumstances as a whole, including the entire history of the litigation in Mississippi, to
determine what action would seem obvious to a reasonable person.  Given those circumstances, I do not believe the trial
judge abused his discretion in finding that a reasonable person would have asked, "What happened to the other two
plaintiffs who had been awarded millions of dollars by a Mississippi jury?" particularly given the on-going correspondence
between the parties regarding the HICO lawsuit and the cost of the Mississippi litigation.  Because the majority holds that
the trial court abused its discretion in denying St. Paul's motion for new trial, I respectfully dissent.
      Alma L. López, Chief Justice
