Suit Must be Prosecuted Diligently

Insured Can’t Sit on a Lawsuit to Punish the Defendant Post 4866 Almost every litigating lawyer has tried to get an appellate court to grant a writ of mandate to overturn an error or abuse by a trial court. Successful writs of mandate are as rare as a snowstorm in the Sahara. Regardless, Allstate Texas Lloyd’s (Allstate) tried by a petition for writ of mandamus, where relators Allstate and James Stabler contend that the trial court abused its discretion by refusing to dismiss the underlying insurance coverage dispute for want of prosecution. In In Re Allstate Texas Lloyd’s And James Stabler, No. 13-24-00395-CV, Court of Appeals of Texas (August 26, 2024) surprised all and granted the writ of mandate. BACKGROUND On July 13, 2017, real parties in interest Julio and Rachel de la Garza filed suit against relators for denying or underpaying their claim for property damages sustained to their home as a result of a 2015 storm. The de la Garzas alleged that Stabler was the adjuster on the claim, and they asserted various causes of action including breach of contract, violations of the insurance code, deceptive trade practices, and bad faith. On August 10, 2017, relators filed their original answer to the de la Garzas’ lawsuit. On May 3, 2019, relators filed a motion to dismiss the case for want of prosecution on grounds that the de la Garzas had not instituted any activity in the case since 2017. Relators alleged that the de la Garzas had not taken any action to lift the abat On June 17, 2019, the trial court held a hearing on relators’ motion to dismiss for want of prosecution. On December 11, 2023, the trial court set the case for hearing on its dismissal docket. On March 22, 2024, relators filed their second motion to dismiss the case for want of prosecution. On April 24, 2024, the parties mediated the case; however, mediation was unsuccessful. On April 25, 2024, the de la Garzas filed a second motion requesting the trial court to retain the case on its docket. On May 1, 2024, the trial court signed an order which granted the de la Garzas’ second motion to retain the case and denied relators’ second motion to dismiss the case for want of prosecution. This original proceeding ensued. MANDAMUS Mandamus is an extraordinary and discretionary remedy. The relator must show that (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. The trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law Mandamus relief is appropriate when a trial court abuses its discretion. Dismissals for Want of Prosecution The Texas Rules of Judicial Administration require district and statutory county courts to ensure, so far as reasonably possible, that civil cases in which a jury has been demanded, other than those arising under the Family Code, are brought to trial or final disposition within eighteen months of the appearance date. ANALYSIS Although the record indicates that the de la Garzas occasionally engaged in brief periods of activity on the case, the record also indicates that there are several extensive periods of inaction. Actions taken after a motion to dismiss is filed, including the obtaining of a trial setting or filing of a jury demand, do not enter into the analysis of whether diligence has been exercised. The de la Garzas’ proffered reasons for the delay do not offer a reasonable explanation or otherwise establish good cause for the delay. Accordingly, the Court of Appeals concluded that they failed to prosecute their lawsuit against relators to a conclusion with reasonable diligence, and the trial court abused its discretion by refusing to grant relators’ second motion to dismiss for want of prosecution. Relators lack an adequate remedy by appeal and the Court of Appeals sustained the sole issue presented in this original proceeding and granted the petition for writ of mandamus and directED the trial court to vacate its May 10, 2024 order denying relators’ second motion to dismiss and to enter an order granting that motion. ZALMA OPINION Many people think that if they sue an insurance company for bad faith the insurance company will open its checkbook and pay off the plaintiff as it demands. That is not true and it wasn’t true with regard to the de la Garzas’ suit against Allstate. Doing nothing much for seven years is not just sloth it is ridiculous and forced an appellate court to do something it does not like to do, grant a petition for mandamus and order the trial court to dismiss the suit. (c) 2024 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to my substack at Go to X @bzalma; Go to the Insurance Claims Library –