in Re: State Farm Mutual Automobile Insurance Company, Bryan Kenney, Ray Medley and Oscar Garcia ( 2006 )

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed April 27, 2006

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed April 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00161-CV

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IN RE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

BRYAN KENNEY, RAY MEDLEY, AND OSCAR GARCIA, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

  M E M O R A N D U M   O P I N I O N

In this original proceeding, relators seek a writ of mandamus ordering the respondent, the Honorable Lonnie Cox, presiding judge of the 56th Judicial District Court of Galveston County, to set aside his ruling denying relators= motion to abate the real party in interest=s extra-contractual claims until after her breach of contract case has been resolved.  We conditionally grant the writ.

The underlying lawsuit arises from a claim for uninsured motorist insurance benefits.  The real party in interest, Kimberly Curry, filed suit against her insurer, State Farm, claiming breach of contract, breach of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Insurance Code.  Relators filed a motion to sever the breach of contract claim from the other claims, which the trial court denied.  While still disputing liability, relators made a settlement offer to the real party in interest, which she rejected.  Relators then filed an amended motion to sever and abate arguing that once a settlement offer was made, severance and abatement of the extra-contractual claims was required.  The trial court granted relators= motion to sever, but denied the motion to abate.

Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles when there is no other adequate remedy by law.  See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).  A trial court abuses its discretion if Ait reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@ Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).  When alleging that a trial court abused its discretion in its resolution of factual issues, the party must show the trial court could reasonably have reached only one decision. Id. at 918.  As to the determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly.  See Walker, 827 S.W.2d at 840.

In determining whether the writ should issue, we must further determine whether the party has an adequate remedy by appeal.  Id. Mandamus is intended to be an extraordinary remedy, only available in limited circumstances Ainvolving manifest  and urgent necessity and not for grievances that may be addressed by other remedies.@ Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989).

In most circumstances, a decision to grant or deny a motion to abate is within the discretion of the trial court.  Project Eng=g USA Corp. v. Gator Hawk, Inc. 833 S.W.2d 716, 724 (Tex. App.BHouston [1st Dist.] 1992, no writ).  As a general rule, a plea in abatement is an incidental ruling that is not subject to mandamus review.  Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).  However, where a plaintiff has filed a breach of contract claim as well as extra-contractual claims, and a settlement offer has been made, severance and abatement are required.  U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673 (Tex. App.BHouston [1st Dist.] 1993, original proceeding).  It is an abuse of discretion and a violation of plain legal duty to deny a motion to sever and abate an uninsured motorist breach of contract claim from extra-contractual claims.  Id. Further, relators do not have an adequate remedy by appeal because if the extra-contractual claims are tried with the breach of contract claim, the court, as well as the parties, will be put to the expense and the effort of preparing and trying extra-contractual claims that may be disposed of in the resolution of the breach of contract claim. Id. at 675.

Relators are entitled to mandamus relief compelling the respondent to abate the real party in interest=s breach of contract claim from her extra-contractual claims.  We are confident Judge Cox will set aside his ruling denying relators= motion to abate.  Our writ of mandamus will issue only in the event he fails to comply.          

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed April 27, 2006.

Panel consists of Chief Justice Hedges, Justices Yates and Guzman.