Insured Can’t Sit on a Lawsuit to Punish the Defendant
Post 4866
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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 abatement by filing a controverting affidavit regarding their alleged failure to give notice, or by providing the required notice, and had otherwise taken no steps to prosecute the case.
On June 17, 2019, the trial court held a hearing on relators’ motion to dismiss for want of prosecution. Relators assert that, at this hearing, the trial court ordered the de la Garzas to provide relators with the requisite statutory notice by July 1, 2019, and the de la Garzas did so on July 3, 2019.
On December 11, 2023, the trial court set the case for hearing on its dismissal docket; however, no notice of this hearing was provided to the parties. Nevertheless, that same day, the de la Garzas filed a verified motion to retain the case on the 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.
THE RESPONSE
Aside from filing their lawsuit in 2017 and propounding initial discovery, the only action the de la Garzas have taken to prosecute their case has been filing a motion to mediate on January 31, 2020, filing a Motion to Retain on December 11, 2023, and engaging in unsuccessful mediation on April 24, 2024. The de la Garzas provided no excuse – much less a reasonable excuse for delay for any of the time periods this case has been pending.
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 plaintiff has a duty to prosecute its lawsuit to a conclusion with reasonable diligence, and if that duty is not fulfilled, the trial court may dismiss the case for want of prosecution. A delay of an unreasonable duration if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit. This conclusive presumption justifies the dismissal of a suit under the trial court’s inherent power.
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
The de la Garzas filed their original petition against relators on July 13, 2017; thus, their lawsuit has been pending more than seven years. This period far exceeds the eighteen-month time frame for disposition of the case as set forth in the administrative rules.
The de la Garzas assert that the case is set for trial in less than six months and, considering the circumstances, they have been reasonably active pursuing this case.
In July 2017, the de la Garzas filed their original petition, including requests for disclosures, and in September 2017, they responded to relators’ requests for disclosures.
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.
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Policy Limits Demand Accepted Settles Claim
Post 5434
Posted on August 26, 2026 by Barry Zalma
See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute
In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange, The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.
FACTUAL BACKGROUND
Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.
Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...
Policy Limits Demand Accepted Settles Claim
Post 5434
Posted on August 26, 2026 by Barry Zalma
See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute
In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange, The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.
FACTUAL BACKGROUND
Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.
Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...
The Largest Residential Burglary of All Time
Post 5407
Fraud & the Fear of Bad Faith Suits
Posted on July 22, 2026 by Barry Zalma
See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
After ...
Qui Tam Relators are not officers of the United States
Posted on September 4, 2026 by Barry Zalma
Attempt to use Constitution to Stop a Qui Tam False Claims Act Case
Post 5486
FCA’s Qui Tam Provisions do not Violate the Appointments Clause.
In United States Of America, Clarissa Zafirov, ex rel; Dr. v. Florida Medical Associates, LLC, d.b.a. Vipcare, Physician Partners, LLC, Anion Technologies, LLC, Freedom Health, Inc., Optimum Healthcare, Inc., Physician Partners Specialty Services, LLC, et al., No. 24-13581, United States Court of Appeals, Eleventh Circuit (September 1, 2026).
The False Claims Act (“FCA”) allows the Attorney General to bring civil suits against perpetrators of fraud against the government. This case involves another portion of the FCA-the qui tam provisions-which allow people, called relators, who have knowledge about fraud against the government to pursue a case against the perpetrator of the fraud.
Dr. Clarissa Zafirov filed a qui tam action under the False Claims Act on behalf of...
Posted on September 3, 2026 by Barry Zalma
You Only Get One Chance to Sue
Post 5484
In David Cromp v. Johnny Harkrider, Monique Harkrider, and their Marital Community, dba Able Plumbing Plus, No. 61678-5-II, Court of Appeals of Washington, Division 2 (August 25, 2026) David Cromp hired Able Plumbing Plus in 2018 to install plumbing, including two toilets, at his residence. In 2019, both toilets allegedly leaked, causing damage. Insurance claims were submitted through Able’s contractor policy, but the insurer eventually denied the claims.
Cromp sued Able in 2022 for breach of contract based on the allegedly defective toilet installation. During that case, Cromp attempted to add claims related to Able’s conduct during the insurance claim process, including fraud, bad faith, tortious conduct, and bond-related claims, but the superior court denied leave to amend. The 2022 breach-of-contract claim was later dismissed with prejudice on summary judgment as time-barred.
On the same day the 2022 case was dismissed, Cromp filed a ...
Habeas Corpus Petition Granted
Post 5483
Posted on September 2, 2026 by Barry Zalma
Over Staying Visa & Charge of Insurance Fraud Still Entitled to Habeas Relief and a Bond Hearing
In Hernan Guillermo Palomino-Crespo v. Warden, Glades County Detention Center et al., No. 2:26-cv-02322-SPC-NPM, United States District Court, M.D. Florida, Fort Myers Division (August 26, 2026) Hernan Guillermo Palomino-Crespo’s Amended Petition for Writ of Habeas Corpus, the government’s response and Palomino-Crespo’s reply.
FACTUAL BACKGROUND
Palomino-Crespo is a native and citizen of Colombia who lawfully entered the United States on a B-2 non-immigrant visa on February 24, 2017. He resides in Miami, Florida with his wife and two minor children, owns and operates a residential restoration and remodeling business, and files U.S. tax returns.
On June 4, 2026, the State of Florida charged Palomino-Crespo with insurance fraud.
Palomino-Crespo claimeds he did not meet the requirements for mandatory detention under § ...
