in Re Southeast Surplus Underwriters General Agency, Inc. ( 2008 )

NOS. 08-0142, 08-0208 & 08-0427
IN RE DELTA LLOYDS INSURANCE COMPANY OF HOUSTON, TEXAS
IN RE HURRICANE RITA HOMEOWNERS’ CLAIMS
IN RE SOUTHEAST SURPLUS UNDERWRITERS GENERAL AGENCY, INC.
ON REVIEW BY THE MULTIDISTRICT LITIGATION PANEL
JUSTICE HANKS delivered the opinion of the Multidistrict Litigation Panel, in which JUSTICE
LANG and JUSTICE STONE joined.
PRESIDING JUDGE PEEPLES filed an opinion concurring in part and dissenting in part, in
which JUSTICE MCCLURE joined.
Before this Panel are three motions to transfer various insurance coverage cases to a single
court for the coordination of pretrial proceedings.1 These cases, arising from the defendants’ denial
of Hurricane Rita property damage claims, are currently pending in Jasper, Jefferson, Hardin and
Orange Counties. The first motion, filed by Delta Lloyd’s Insurance Company of Houston
(“Delta”), seeks to consolidate four cases brought against Delta and its adjusters. The second
motion, filed by Southeast Surplus Underwriters General Agency Inc. (“Southeast”), seeks to
consolidate twelve cases brought against Southeast, as the managing general agent for Farmers and
Ranchers Insurance Company (“Farmers”), and/or Farmers and its adjusters. The third motion, filed
by Standard Insurance Company, American-Bankers Insurance Company, American Security
Insurance Company and Voyager Insurance Company (collectively, “the Carriers”), seeks to
consolidate five cases against the Carriers and their adjusters and one case against Underwriters at
1
Delta and the Carriers have asked this Panel to consolidate their motions to transfer into one cause. Although,
for administrative purposes, we have considered these two motions together, we do not believe that the consolidation
of the motions is warranted and we decline to do so. Accordingly, we examine each of the three motions individually
and on its own merits.
Lloyd’s of London (“Underwriters”) and its adjusters. We grant Delta’s motion in part and deny
it in part. We grant Southeast’s motion. We deny the Carriers’ motion.
Background
For each of the three motions before us, the plaintiffs in the underlying cases own property
covered by insurance policies. All of the plaintiffs are represented by the same law firm, and they
allege that their respective defendants engaged in unfair settlement practices and wrongfully denied
their claims for property damage caused by Hurricane Rita. In each of the petitions, the plaintiffs
allege violations of the Texas Insurance Code, fraud, breach of contract and breach of the duty of
good faith and fair dealing.
The petitions in all of the underlying cases contain nearly identical generalized allegations
of wrongdoing. The discovery requests are nearly identical, and are typical of initial discovery in
insurance coverage disputes—seeking general information regarding each defendant’s justification
for denying the claims, as well as each defendants’ policies and procedures for investigating the
claims, compliance with the requisite insurance code provisions for adjusting the claims and their
communications with the plaintiffs. The discovery requests are voluminous, averaging
approximately 93 requests for production and 23 interrogatories (plus requests for disclosure) per
defendant insurance carrier and 64 requests for production and 23 interrogatories (plus requests for
disclosure) for the remaining defendants.
Mandates of Rule 13
Each of the three motions to transfer asks us to consolidate a particular subset of cases into
an MDL. Rule 13 authorizes this Panel to grant a motion for the transfer of “related” cases from
different trial courts to a single pretrial judge if the transfer will (1) serve the convenience of the
2
parties and witnesses and (2) promote the just and efficient conduct of litigation. See TEX. R. JUD.
ADMIN.13.3(a)(2), TEX. GOV’T CODE § 74.162 (West 2005). Our decision regarding a motion to
transfer is necessarily influenced by our review of the contents of the parties’ pleadings and
discovery in the cases at issue in the motion. Accordingly, for each of the three motions to transfer,
we analyze the case grouping suggested by the defendants under the rubric of Rule 13 and the
factual issues at play in the cases.
Are the Cases Related?
Under Rule 13.2(f), cases are related if they involve “one or more common questions of
fact.” See TEX. R. JUD. ADMIN 13.2(f), TEX. GOV’T CODE §74.162 (West 2005). While the rule
requires common questions of fact, strict identity of issues and parties in the cases is not required
and cases containing case-specific issues such as damages may still be transferred under Rule 13.
See In re Hurricane Bus Evacuation, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). As we have
held, “every case is different. No two cases are alike. A rule 13 transfer of cases does not require
that the cases be congruent or anything close to it.” In re Hurricane Rita Bus Evacuation, 216 S.W.
3d at 72.
The arguments and counter-arguments made for each of the three motions to transfer are
similar. For example, in each of the three motions, the movants argue that the cases they list are
related because they are all insurance coverage disputes arising from property damage sustained
during Hurricane Rita. Accordingly, all three groups of movant defendants contend that a number
of common questions of fact exist and that these common questions of fact mandate the transfer of
3
their cases to a single pretrial court.2
In contrast, the Respondents argue that all of the cases covered by the three motions are
highly individualized and that they do not share common questions of fact. Respondents argue that
each individual plaintiff had different problems with each defendant carrier and adjuster, and the
cases involve separate and distinct pieces of real property located in four different counties.
At the outset, we note that the fact that these insurance coverage disputes may arise from the
same disaster does not mean ipso facto that they are “related” for purposes of Rule 13. Here, in all
three motions to transfer, the occurrence of a single disaster–Hurricane Rita–is a common
undisputed fact rather than a “common question of fact” under Rule 13. See, e.g., In re Personal
Injury Litigation Against Great Lakes Dredge & Dock Company LLC, No. 07-0025 (Tex. M.D.L.
Panel March 7, 2007)(denying motion to transfer where the alleged similarities between the cases
are “not common questions of fact; instead they are undisputed facts”). Movants’ reliance upon our
opinion in In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70 (Tex. M.D.L. Panel 2006) to
support their argument that the occurrence of Hurricane Rita makes all of these cases related under
Rule 13 is misplaced. That case is factually distinguishable from the case at bar.
In In re Hurricane Rita Bus Evacuation, where we found that the cases arising from a single
disaster–a tragic bus fire–were related, there are common questions of fact regarding the occurrence
of the disaster itself. As we noted, because these fact questions are central to the resolution of each
case, “none of the parties seriously denied that the liability issues in each of the cases will be
substantially the same,” and in all of the cases the lawyers would have to examine “the same large
2
Delta and the Carriers specifically request that the cases they list in their motions be consolidated and
transferred to Harris County. Southeast, after initially requesting that its listed cases be transferred to Bexar County,
withdrew its request and now merely asks for a transfer, leaving the choice of appropriate county to our discretion.
4
pool of employees and fact witnesses” and explore the same negligence and causation issues of this
single event. In re Hurricane Rita Evacuation Bus Fire, 216 S.W. 3d at 72; see also In re Cano
Petroleum Inc, et. al,. No. 07-0593 (Tex. M.D.L. Panel January 2, 2008)(granting motion to transfer
cases where common questions of fact regarding a single disaster–a wildfire–exist in seven
lawsuits).
However, in each of the three motions currently presented to us, the pleadings and the
discovery in the underlying cases reveal that the occurrence of Hurricane Rita is not an actual
“question of fact,” nor is any purported question of fact pertaining to Hurricane Rita central to the
resolution of the mostly contractual and statutory claims asserted against the various defendants.
Rather, the underlying factual questions of each case below are the alleged conduct of each of the
particular defendants in adjusting the individual insurance claims and the alleged contractual basis
for denying each plaintiff’s claims. These are the underlying questions of fact that we must examine
to determine whether the cases at issue in each motion are “related” under Rule 13.
Delta
Applying the above analysis, each of the four cases against Delta do share common questions
of fact regarding Delta’s alleged conduct in adjusting the individual insurance claims and the alleged
contractual basis for denying each plaintiff’s claims. Accordingly, we agree with Delta that these
four cases are “related” under Rule 13.
In In re OCWEN Loan Servicing, LLC Mortgage Servicing Litigation, No. 07-0037 (Tex.
M.D.L. Panel March 26, 2007), the Panel addressed factual allegations very similar to the facts
before us now and our opinion in that case is instructive to our analysis here. In OCWEN, the
plaintiffs argued that the cases were highly individualized and not related because each plaintiffs’
5
experience with the defendant in servicing their mortgages “was their own personal nightmare, with
unique facts” and each case involves “a different specific piece of real property” located in different
counties. Id. However, a review of the pleadings and discovery revealed that the claims in each of
cases are “based on standard practices and procedures” followed by a single company in the conduct
of its business. Id. Thus we held that, under those circumstances, each case shared one or more
common questions of fact and that under Rule 13 they were related.
The claims in each of the nine pending cases are based on standard practices and
procedures followed by Ocwen in its business of servicing mortgage loans.
Accordingly, in all nine cases, discovery will be aimed at disclosing the nature of
these common practices and procedures. In addition, similar legal issues will arise
as to whether those standard practices and procedures give rise to liability under the
commonly alleged theories.
Id.
Similarly, as reflected in the plaintiffs’ pleadings and discovery requests, the claims against
Delta all arise from standardized policy language used by Delta and from the same standard
practices and procedures allegedly followed by Delta with respect to each plaintiff’s claims. Thus,
all these cases will focus upon these practices and procedures and the policy language at issue, and
the discovery in all of these cases will reflect that same focus. Under these circumstances, we find
that the four Delta cases share one or more common questions of fact and are “related” under Rule
13 to warrant transfer.
Southeast
Likewise, the twelve cases against Southeast also share common questions of fact regarding
the defendants’ alleged wrongdoing in adjusting the individual insurance claims and the defendants’
alleged contractual basis for denying each plaintiff’s claims. The plaintiffs’ pleadings and discovery
6
requests for these twelve cases demonstrate that the claims asserted against Southeast all arise from
the same policies issued by Southeast and from the same standard practices and procedures allegedly
followed by Southeast with respect to each plaintiff’s claims. Thus, all these cases will be aimed at
disclosing the nature of these practices and procedures and construing the policy language at issue,
and will share common discovery requests and responses to those ends. Accordingly, we find that
these twelve cases are also “related” under Rule 13 to warrant transfer. See In re OCWEN, No. 07-
0037.
The Carriers
In contrast, we agree with Respondents that the six cases made the subject of the Carriers’
motion are not “related” under Rule 13 to support transfer. These cases do not share the same
underlying questions of fact. They do not share common questions of fact regarding the alleged
conduct of each defendant in adjusting the individual insurance claims and the alleged contractual
basis for denying each plaintiff’s claims. Although the Carriers contend that they are all members
of the “Assurant Group,” a group of companies that “sells credit related products; memberships
products and, extended service contracts,” the Carriers have not established that the claims against
them are based on standard practices and procedures common to all four of the Carriers and the
Underwriters in handling the claims, or that the claims arise from the same standardized policy
language. See, e.g., In re OCWEN, No. 07-0037. Similarly, there are no allegations before us that
the Carriers and Underwriters acted pursuant to a common scheme to harm plaintiffs. Thus, despite
identical generalized allegations of wrongdoing, the various petitions presented by Carriers give rise
to different questions of fact based on each plaintiff’s dealings and contractual relationship with the
defendants. Accordingly, we reject the argument that these cases involve one or more common
7
questions of fact among all of the cases within the meaning of Rule 13.
Would the Transfer Further Convenience and Efficiency?
We next review whether the transfer of these cases would serve the goals of Rule 13—in
other words, whether it will (1) serve the convenience of the parties and witnesses and (2) promote
the just and efficient conduct of litigation. See TEX. R. JUD. ADMIN.13.3(a)(2), TEX. GOV’T CODE
§ 74.162 (West 2005). “The movant need not show anyone has already been inconvenienced or that
there are existing problems to be addressed. Instead, we must simply be convinced that transfer to
a pretrial judge would promote Rule 13's goals of convenience and efficiency.” In re Hurricane Rita
Bus Evacuation, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). While the number of parties and
cases is a relevant factor in ruling on a motion to transfer, “the number of pending cases and parties
is not directly determinative of the necessity of a pretrial transfer.” In re Vanderbilt Mortgage &
Fin. Inc., 166 S.W.3d 12, 14 (Tex. M.D.L. Panel 2005).
Delta
We agree that transferring the cases listed in Delta’s motion to a single pretrial court would
further the convenience of both the parties and witnesses in those cases, and would promote the just
and efficient resolution of these cases. As a result of the common questions of fact regarding Delta’s
alleged conduct in adjusting the insurance claims and the contractual basis for the denial of the
claims, the same pool of fact and employee witnesses will likely need to be deposed in each one of
the four cases against Delta. As we have held, “[w]hen Rule 13 voices its concern for the
convenience of parties and witnesses, it has such persons [fact and employee witnesses] in mind.”
In re Hurricane Rita Evacuation Bus Fire, 216 S.W. 3d at 72. Further, as evidenced by the
voluminous written discovery sought thus far by plaintiffs, discovery in these cases will be time
8
consuming and costly to both the parties and witnesses, and both the discovery requests and
responses are likely to be identical in each of the four cases. Coordination of this discovery in a
single pretrial court will greatly reduce the time and expense to both the parties and fact witness,
because, among other things, the consolidated proceedings will prevent the needless time and
expense of quadrupled written and deposition discovery, and consolidation will also ensure that
identical pretrial issues, including discovery disputes and expert issues regarding Delta’s conduct,
are resolved in a consistent manner among the cases. In re Steven E. Looper, Individually, et. al.,
No. 06-1010 (Tex. M.D.L. Panel April 10, 2006).
However, we do not agree that this pretrial judge should necessarily be located in Harris
County, a county in which none of these cases are pending. A pretrial judge will be appointed by
separate order.
Southeast
For the same reasons, we find that the transfer of the cases against Southeast to a single
pretrial court would be convenient to both the parties and witnesses and promote the just and efficient
resolution of these cases. Eight of the twelve cases against Southeast were filed in and involve
property located in Orange County. The remaining four cases were filed in and involve properties
located in Jasper and Hardin Counties–which have a contiguous border with Orange County.
Accordingly, we find that the transfer of these cases to a single court would best serve the
convenience the parties and witnesses alike in this case. A pretrial judge will be appointed by
separate order.
The Carriers
We have previously noted that the Carriers cases are not “related” for purposes of Rule 13.
9
Accordingly, we need not address the issue of whether transfer would be convenient to the parties
and witnesses and promote the just and efficient resolution of the cases listed by the Carriers’ motion.
Further, in light of our conclusion, we need not address other arguments raised by movants regarding
any alleged efficiency and convenience that might be achieved by transfer due to the common
representation by the Mostyn Law Firm of the plaintiffs in every case, nor do we deem such
contention to be relevant in these cases.
Conclusion
For the reasons stated above, we conclude that Delta and Southeast have shown that the cases
listed their motions are “related” within the meaning of Rule 13 and that transferring them to one
pretrial court would serve the convenience of the parties and witnesses and the efficient resolution
of the claims. Accordingly, Delta’s motion is granted in part and denied in part and Southeast’s
motion is granted.
For the reasons stated above, we conclude that the Carriers have not shown that the cases that
are the subject of their motion are “related” within the meaning of Rule 13. Accordingly, the
Carriers’ motion is denied.
_______________________________
George C. Hanks, Jr.
Justice
OPINION DELIVERED: September 5, 2008
10
NOS. 08-0142, 08-0208 & 08-0427
IN RE DELTA LLOYDS INSURANCE COMPANY OF HOUSTON, TEXAS
IN RE HURRICANE RITA HOMEOWNERS’ CLAIMS
IN RE SOUTHEAST SURPLUS UNDERWRITERS GENERAL AGENCY, INC.
ON REVIEW BY THE MULTIDISTRICT LITIGATION PANEL
JUSTICE HANKS delivered the opinion of the Multidistrict Litigation Panel, in which JUSTICE
LANG and JUSTICE STONE joined.
PRESIDING JUDGE PEEPLES filed an opinion concurring in part and dissenting in part, in
which JUSTICE MCCLURE joined.
Before this Panel are three motions to transfer various insurance coverage cases to a single
court for the coordination of pretrial proceedings.1 These cases, arising from the defendants’ denial
of Hurricane Rita property damage claims, are currently pending in Jasper, Jefferson, Hardin and
Orange Counties. The first motion, filed by Delta Lloyd’s Insurance Company of Houston
(“Delta”), seeks to consolidate four cases brought against Delta and its adjusters. The second
motion, filed by Southeast Surplus Underwriters General Agency Inc. (“Southeast”), seeks to
consolidate twelve cases brought against Southeast, as the managing general agent for Farmers and
Ranchers Insurance Company (“Farmers”), and/or Farmers and its adjusters. The third motion, filed
by Standard Insurance Company, American-Bankers Insurance Company, American Security
Insurance Company and Voyager Insurance Company (collectively, “the Carriers”), seeks to
consolidate five cases against the Carriers and their adjusters and one case against Underwriters at
1
Delta and the Carriers have asked this Panel to consolidate their motions to transfer into one cause. Although,
for administrative purposes, we have considered these two motions together, we do not believe that the consolidation
of the motions is warranted and we decline to do so. Accordingly, we examine each of the three motions individually
and on its own merits.
Lloyd’s of London (“Underwriters”) and its adjusters. We grant Delta’s motion in part and deny
it in part. We grant Southeast’s motion. We deny the Carriers’ motion.
Background
For each of the three motions before us, the plaintiffs in the underlying cases own property
covered by insurance policies. All of the plaintiffs are represented by the same law firm, and they
allege that their respective defendants engaged in unfair settlement practices and wrongfully denied
their claims for property damage caused by Hurricane Rita. In each of the petitions, the plaintiffs
allege violations of the Texas Insurance Code, fraud, breach of contract and breach of the duty of
good faith and fair dealing.
The petitions in all of the underlying cases contain nearly identical generalized allegations
of wrongdoing. The discovery requests are nearly identical, and are typical of initial discovery in
insurance coverage disputes—seeking general information regarding each defendant’s justification
for denying the claims, as well as each defendants’ policies and procedures for investigating the
claims, compliance with the requisite insurance code provisions for adjusting the claims and their
communications with the plaintiffs. The discovery requests are voluminous, averaging
approximately 93 requests for production and 23 interrogatories (plus requests for disclosure) per
defendant insurance carrier and 64 requests for production and 23 interrogatories (plus requests for
disclosure) for the remaining defendants.
Mandates of Rule 13
Each of the three motions to transfer asks us to consolidate a particular subset of cases into
an MDL. Rule 13 authorizes this Panel to grant a motion for the transfer of “related” cases from
different trial courts to a single pretrial judge if the transfer will (1) serve the convenience of the
2
parties and witnesses and (2) promote the just and efficient conduct of litigation. See TEX. R. JUD.
ADMIN.13.3(a)(2), TEX. GOV’T CODE § 74.162 (West 2005). Our decision regarding a motion to
transfer is necessarily influenced by our review of the contents of the parties’ pleadings and
discovery in the cases at issue in the motion. Accordingly, for each of the three motions to transfer,
we analyze the case grouping suggested by the defendants under the rubric of Rule 13 and the
factual issues at play in the cases.
Are the Cases Related?
Under Rule 13.2(f), cases are related if they involve “one or more common questions of
fact.” See TEX. R. JUD. ADMIN 13.2(f), TEX. GOV’T CODE §74.162 (West 2005). While the rule
requires common questions of fact, strict identity of issues and parties in the cases is not required
and cases containing case-specific issues such as damages may still be transferred under Rule 13.
See In re Hurricane Bus Evacuation, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). As we have
held, “every case is different. No two cases are alike. A rule 13 transfer of cases does not require
that the cases be congruent or anything close to it.” In re Hurricane Rita Bus Evacuation, 216 S.W.
3d at 72.
The arguments and counter-arguments made for each of the three motions to transfer are
similar. For example, in each of the three motions, the movants argue that the cases they list are
related because they are all insurance coverage disputes arising from property damage sustained
during Hurricane Rita. Accordingly, all three groups of movant defendants contend that a number
of common questions of fact exist and that these common questions of fact mandate the transfer of
3
their cases to a single pretrial court.2
In contrast, the Respondents argue that all of the cases covered by the three motions are
highly individualized and that they do not share common questions of fact. Respondents argue that
each individual plaintiff had different problems with each defendant carrier and adjuster, and the
cases involve separate and distinct pieces of real property located in four different counties.
At the outset, we note that the fact that these insurance coverage disputes may arise from the
same disaster does not mean ipso facto that they are “related” for purposes of Rule 13. Here, in all
three motions to transfer, the occurrence of a single disaster–Hurricane Rita–is a common
undisputed fact rather than a “common question of fact” under Rule 13. See, e.g., In re Personal
Injury Litigation Against Great Lakes Dredge & Dock Company LLC, No. 07-0025 (Tex. M.D.L.
Panel March 7, 2007)(denying motion to transfer where the alleged similarities between the cases
are “not common questions of fact; instead they are undisputed facts”). Movants’ reliance upon our
opinion in In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70 (Tex. M.D.L. Panel 2006) to
support their argument that the occurrence of Hurricane Rita makes all of these cases related under
Rule 13 is misplaced. That case is factually distinguishable from the case at bar.
In In re Hurricane Rita Bus Evacuation, where we found that the cases arising from a single
disaster–a tragic bus fire–were related, there are common questions of fact regarding the occurrence
of the disaster itself. As we noted, because these fact questions are central to the resolution of each
case, “none of the parties seriously denied that the liability issues in each of the cases will be
substantially the same,” and in all of the cases the lawyers would have to examine “the same large
2
Delta and the Carriers specifically request that the cases they list in their motions be consolidated and
transferred to Harris County. Southeast, after initially requesting that its listed cases be transferred to Bexar County,
withdrew its request and now merely asks for a transfer, leaving the choice of appropriate county to our discretion.
4
pool of employees and fact witnesses” and explore the same negligence and causation issues of this
single event. In re Hurricane Rita Evacuation Bus Fire, 216 S.W. 3d at 72; see also In re Cano
Petroleum Inc, et. al,. No. 07-0593 (Tex. M.D.L. Panel January 2, 2008)(granting motion to transfer
cases where common questions of fact regarding a single disaster–a wildfire–exist in seven
lawsuits).
However, in each of the three motions currently presented to us, the pleadings and the
discovery in the underlying cases reveal that the occurrence of Hurricane Rita is not an actual
“question of fact,” nor is any purported question of fact pertaining to Hurricane Rita central to the
resolution of the mostly contractual and statutory claims asserted against the various defendants.
Rather, the underlying factual questions of each case below are the alleged conduct of each of the
particular defendants in adjusting the individual insurance claims and the alleged contractual basis
for denying each plaintiff’s claims. These are the underlying questions of fact that we must examine
to determine whether the cases at issue in each motion are “related” under Rule 13.
Delta
Applying the above analysis, each of the four cases against Delta do share common questions
of fact regarding Delta’s alleged conduct in adjusting the individual insurance claims and the alleged
contractual basis for denying each plaintiff’s claims. Accordingly, we agree with Delta that these
four cases are “related” under Rule 13.
In In re OCWEN Loan Servicing, LLC Mortgage Servicing Litigation, No. 07-0037 (Tex.
M.D.L. Panel March 26, 2007), the Panel addressed factual allegations very similar to the facts
before us now and our opinion in that case is instructive to our analysis here. In OCWEN, the
plaintiffs argued that the cases were highly individualized and not related because each plaintiffs’
5
experience with the defendant in servicing their mortgages “was their own personal nightmare, with
unique facts” and each case involves “a different specific piece of real property” located in different
counties. Id. However, a review of the pleadings and discovery revealed that the claims in each of
cases are “based on standard practices and procedures” followed by a single company in the conduct
of its business. Id. Thus we held that, under those circumstances, each case shared one or more
common questions of fact and that under Rule 13 they were related.
The claims in each of the nine pending cases are based on standard practices and
procedures followed by Ocwen in its business of servicing mortgage loans.
Accordingly, in all nine cases, discovery will be aimed at disclosing the nature of
these common practices and procedures. In addition, similar legal issues will arise
as to whether those standard practices and procedures give rise to liability under the
commonly alleged theories.
Id.
Similarly, as reflected in the plaintiffs’ pleadings and discovery requests, the claims against
Delta all arise from standardized policy language used by Delta and from the same standard
practices and procedures allegedly followed by Delta with respect to each plaintiff’s claims. Thus,
all these cases will focus upon these practices and procedures and the policy language at issue, and
the discovery in all of these cases will reflect that same focus. Under these circumstances, we find
that the four Delta cases share one or more common questions of fact and are “related” under Rule
13 to warrant transfer.
Southeast
Likewise, the twelve cases against Southeast also share common questions of fact regarding
the defendants’ alleged wrongdoing in adjusting the individual insurance claims and the defendants’
alleged contractual basis for denying each plaintiff’s claims. The plaintiffs’ pleadings and discovery
6
requests for these twelve cases demonstrate that the claims asserted against Southeast all arise from
the same policies issued by Southeast and from the same standard practices and procedures allegedly
followed by Southeast with respect to each plaintiff’s claims. Thus, all these cases will be aimed at
disclosing the nature of these practices and procedures and construing the policy language at issue,
and will share common discovery requests and responses to those ends. Accordingly, we find that
these twelve cases are also “related” under Rule 13 to warrant transfer. See In re OCWEN, No. 07-
0037.
The Carriers
In contrast, we agree with Respondents that the six cases made the subject of the Carriers’
motion are not “related” under Rule 13 to support transfer. These cases do not share the same
underlying questions of fact. They do not share common questions of fact regarding the alleged
conduct of each defendant in adjusting the individual insurance claims and the alleged contractual
basis for denying each plaintiff’s claims. Although the Carriers contend that they are all members
of the “Assurant Group,” a group of companies that “sells credit related products; memberships
products and, extended service contracts,” the Carriers have not established that the claims against
them are based on standard practices and procedures common to all four of the Carriers and the
Underwriters in handling the claims, or that the claims arise from the same standardized policy
language. See, e.g., In re OCWEN, No. 07-0037. Similarly, there are no allegations before us that
the Carriers and Underwriters acted pursuant to a common scheme to harm plaintiffs. Thus, despite
identical generalized allegations of wrongdoing, the various petitions presented by Carriers give rise
to different questions of fact based on each plaintiff’s dealings and contractual relationship with the
defendants. Accordingly, we reject the argument that these cases involve one or more common
7
questions of fact among all of the cases within the meaning of Rule 13.
Would the Transfer Further Convenience and Efficiency?
We next review whether the transfer of these cases would serve the goals of Rule 13—in
other words, whether it will (1) serve the convenience of the parties and witnesses and (2) promote
the just and efficient conduct of litigation. See TEX. R. JUD. ADMIN.13.3(a)(2), TEX. GOV’T CODE
§ 74.162 (West 2005). “The movant need not show anyone has already been inconvenienced or that
there are existing problems to be addressed. Instead, we must simply be convinced that transfer to
a pretrial judge would promote Rule 13's goals of convenience and efficiency.” In re Hurricane Rita
Bus Evacuation, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). While the number of parties and
cases is a relevant factor in ruling on a motion to transfer, “the number of pending cases and parties
is not directly determinative of the necessity of a pretrial transfer.” In re Vanderbilt Mortgage &
Fin. Inc., 166 S.W.3d 12, 14 (Tex. M.D.L. Panel 2005).
Delta
We agree that transferring the cases listed in Delta’s motion to a single pretrial court would
further the convenience of both the parties and witnesses in those cases, and would promote the just
and efficient resolution of these cases. As a result of the common questions of fact regarding Delta’s
alleged conduct in adjusting the insurance claims and the contractual basis for the denial of the
claims, the same pool of fact and employee witnesses will likely need to be deposed in each one of
the four cases against Delta. As we have held, “[w]hen Rule 13 voices its concern for the
convenience of parties and witnesses, it has such persons [fact and employee witnesses] in mind.”
In re Hurricane Rita Evacuation Bus Fire, 216 S.W. 3d at 72. Further, as evidenced by the
voluminous written discovery sought thus far by plaintiffs, discovery in these cases will be time
8
consuming and costly to both the parties and witnesses, and both the discovery requests and
responses are likely to be identical in each of the four cases. Coordination of this discovery in a
single pretrial court will greatly reduce the time and expense to both the parties and fact witness,
because, among other things, the consolidated proceedings will prevent the needless time and
expense of quadrupled written and deposition discovery, and consolidation will also ensure that
identical pretrial issues, including discovery disputes and expert issues regarding Delta’s conduct,
are resolved in a consistent manner among the cases. In re Steven E. Looper, Individually, et. al.,
No. 06-1010 (Tex. M.D.L. Panel April 10, 2006).
However, we do not agree that this pretrial judge should necessarily be located in Harris
County, a county in which none of these cases are pending. A pretrial judge will be appointed by
separate order.
Southeast
For the same reasons, we find that the transfer of the cases against Southeast to a single
pretrial court would be convenient to both the parties and witnesses and promote the just and efficient
resolution of these cases. Eight of the twelve cases against Southeast were filed in and involve
property located in Orange County. The remaining four cases were filed in and involve properties
located in Jasper and Hardin Counties–which have a contiguous border with Orange County.
Accordingly, we find that the transfer of these cases to a single court would best serve the
convenience the parties and witnesses alike in this case. A pretrial judge will be appointed by
separate order.
The Carriers
We have previously noted that the Carriers cases are not “related” for purposes of Rule 13.
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Accordingly, we need not address the issue of whether transfer would be convenient to the parties
and witnesses and promote the just and efficient resolution of the cases listed by the Carriers’ motion.
Further, in light of our conclusion, we need not address other arguments raised by movants regarding
any alleged efficiency and convenience that might be achieved by transfer due to the common
representation by the Mostyn Law Firm of the plaintiffs in every case, nor do we deem such
contention to be relevant in these cases.
Conclusion
For the reasons stated above, we conclude that Delta and Southeast have shown that the cases
listed their motions are “related” within the meaning of Rule 13 and that transferring them to one
pretrial court would serve the convenience of the parties and witnesses and the efficient resolution
of the claims. Accordingly, Delta’s motion is granted in part and denied in part and Southeast’s
motion is granted.
For the reasons stated above, we conclude that the Carriers have not shown that the cases that
are the subject of their motion are “related” within the meaning of Rule 13. Accordingly, the
Carriers’ motion is denied.
_______________________________
George C. Hanks, Jr.
Justice
OPINION DELIVERED: September 5, 2008
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