in Re Liberty Mutual Group, Inc.

Petition for Writ of Mandamus Denied and Memorandum Opinion filed May 26, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-11-00310-CV

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IN RE LIBERTY MUTUAL GROUP, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

11th District Court

Harris County, Texas

Trial Court Cause No. 2010-57735

M E M O R A N D U M   O P I N I O N

            This proceeding arises from a dispute over the amount of the covered loss under a homeowner’s insurance policy.  On April 8, 2011, relator Liberty Mutual Group, Inc., filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.  In its petition, Liberty Mutual asks this court to compel the respondent, the Honorable Mike Miller, presiding judge of the 11th District Court of Harris County, to abate the underlying proceedings until an appraisal to determine the amount of the covered loss has been completed.  We deny the requested relief.

            After Hurricane Ike, Nick and Sally Mitchell, the real parties in interest, filed a claim with Liberty Mutual under their homeowner’s policy.  When a dispute arose over the amount of the covered loss, Liberty Mutual invoked the appraisal process pursuant to the terms of the Mitchells’ homeowner’s insurance policy.[1] Appraisal was underway when the Mitchells filed suit against Liberty Mutual. Liberty Mutual filed an answer to the petition, and shortly thereafter, it also filed a motion to abate the case until the appraisal process is completed.  The trial court signed an order denying Liberty Mutual’s motion to abate on March 7, 2011, and this proceeding followed. 

            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 it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).

            The Texas Supreme Court has determined that mandamus relief is appropriate to enforce an appraisal clause because denying an appraisal would vitiate the insurer’s right to defend its breach of contract claim.  In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002).  Here, the parties have begun the appraisal process, and Liberty Mutual has not asked this court to enforce the appraisal clause in the Mitchells’ homeowner’s policy. Instead, the only relief sought in this proceeding is that we direct the trial court to vacate its order denying Liberty Mutual’s motion to abate and require the case to be abated until the appraisal has been completed. 

            Recently, the Texas Supreme Court confirmed that mandamus will not lie regarding the grant or denial of a motion to abate.  Specifically addressing a motion to abate for an insurance appraisal, the court held that “[t]he trial court’s failure to grant the motion to abate is not subject to mandamus, and the proceedings need not be abated while the appraisal goes forward.”  In re Universal Underwriters of Texas Ins. Co., No. 10-0238, 2011 WL 1713278, *7 n. 5 (Tex. May 6, 2011).

Accordingly, we deny Liberty Mutual’s petition for writ of mandamus.

                                                                        PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.

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[1] Appraisal clauses, commonly found in homeowners, automobile, and property insurance policies in Texas, provide a means to resolve disputes about the amount of loss for a covered claim.  See State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888 (Tex. 2009).