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September 04, 2024
Suit Must be Prosecuted Diligently

Insured Can’t Sit on a Lawsuit to Punish the Defendant
Post 4866

Read the full article at https://lnkd.in/d6ej3NUh, shttps://lnkd.in/d6ej3NUh, and at https://zalma.com/blog plus more than 4850 posts.

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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00:12:09
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8 hours ago
Zalma’s Insurance Fraud Letter – September 15, 2024

Zalma’s Insurance Fraud Letter – September 15, 2024
Posted on September 16, 2024 by Barry Zalma
ZIFL Volume 28 Number 18

Read the full article at https://lnkd.in/gtg-zFF2, see the full 18 page pdf at https://lnkd.in/gTy3ziYk, see the full video at https://lnkd.in/gnxQxy4M and at https://lnkd.in/gNcrs22f and at https://zalma.com/blog.

See the full video at and at

Subscribe here: https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkcitKvwMc3HNWiyrn6jw8ERzpnmgU_oNjTrm1U1YGZ7_ay4AZ7_mCLQBKsXokYWFyD_Xo_zMFYUMovVTCgTAs7liC1eR4LsDBrk2zBNDMBPp7Bq0VeAA-SNvk6xgrgl8dNR0BjCMTm_gE7bAycDEHwRXFAoyVjSABkXPPaG2Jb3SEvkeZXRXPDs%3D
The Source for the Insurance Fraud Professional

Zalma’s Insurance Fraud Letter (ZIFL) continues its 28th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to ...

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8 hours ago
Zalma’s Insurance Fraud Letter – September 15, 2024

Zalma’s Insurance Fraud Letter – September 15, 2024
Posted on September 16, 2024 by Barry Zalma
ZIFL Volume 28 Number 18

Read the full article at https://lnkd.in/gtg-zFF2, see the full 18 page pdf at https://lnkd.in/gTy3ziYk, see the full video at https://lnkd.in/gnxQxy4M and at https://lnkd.in/gNcrs22f and at https://zalma.com/blog.

See the full video at and at

Subscribe here: https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkcitKvwMc3HNWiyrn6jw8ERzpnmgU_oNjTrm1U1YGZ7_ay4AZ7_mCLQBKsXokYWFyD_Xo_zMFYUMovVTCgTAs7liC1eR4LsDBrk2zBNDMBPp7Bq0VeAA-SNvk6xgrgl8dNR0BjCMTm_gE7bAycDEHwRXFAoyVjSABkXPPaG2Jb3SEvkeZXRXPDs%3D
The Source for the Insurance Fraud Professional

Zalma’s Insurance Fraud Letter (ZIFL) continues its 28th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to ...

00:08:37
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September 13, 2024
It is Dangerous for Insurance Fraudster to Ignore Court Orders

Court Orders DOJ to Indict Serial Fraudster for Criminal Contempt
Post 4890

Read the full article at https://lnkd.in/gANKyfm5, see the full video at https://lnkd.in/gHJncZe8 and at https://lnkd.in/gXjP5eUQ and at https://zalma.com/blog plus more than 4850 posts.

September 13, 2024

The USDC described Defendant Alberto Marzan as a serial fraudster who has largely managed to dodge accountability for victimizing individuals in the entertainment industry. Plaintiff Michaleen Josephs sued Marzan and his company, Press Media Group (“PMG”), after Marzan fraudulently induced Josephs to issue a series of bogus investments and other payments. When Marzan failed to respond, the Court entered default judgment for Josephs and awarded damages and equitable relief, including a requirement that Marzan divest from his enterprises and provide any future potential investors, employees, or business associates with copies of the Court’s default judgment order and his 2014 guilty plea for insurance fraud.

In Michaleen Josephs v. ...

00:09:10
September 11, 2024

Intentional Acts, Insurance Claims & Exclusions
Insurance Requires a Fortuitous Act

Available only to subscribers to Excellence in Claims Handling at Subscribe to “Excellence in Claims Handling” at https://barryzalma.substack.com/subscribe for only $5 a month or $50 a year.
It includes the following: "In 1978, the California Supreme Court in Clemmer v. Hartford Insurance Co.71 dealt with a shooting that resulted in the death of the victim.

Regardless, it still led to a finding by the Supreme Court of California of a need for defense and indemnity. The court concluded that Hartford had no duties with regard to Dr. Lovelace’s intentional acts in the killing of Dr. Clemmer but was obligated to defend him. If there was a finding of nonintentional conduct in the shooting, however, it would be obligated to defend and its refusal to do so was wrongful."

August 30, 2024

Go to my Interview on the Art of Adjusting Podcast
Barry Zalma, Esq., CFE
Insurance claims expert, consultant at Barry Zalma, Inc. and author/Publisher at ClaimSchool, Inc.
August 30, 2024

Posted on August 30, 2024 by Barry Zalma

See the video at:

In this episode, Chantal Roberts and William Auten welcome Barry Zalma, a seasoned insurance industry professional with over 56 years of experience. The trio discusses the changing role of insurance adjusters, their relationship with policyholders, and the current challenges faced by the industry.

Barry shares his journey from a military investigator to a trainee adjuster and recounts significant cases that shaped his career. Barry focuses on the critical importance of effective and fair claims handling for the profitability of insurance companies and the detrimental impact of poor handling practices. The team also grapple insurance fraud, the adversarial nature of the legal system, and the ...

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July 15, 2024
Present as Real a Free and Imaginary Oral Estimate as Proof of Claim is Fraud

False Swearing & Fraud in Claim Presentation Voids Policy

Read the full article at https://lnkd.in/gXTmBN9m, See the full video at https://lnkd.in/gt8Qd6hB and at https://lnkd.in/gzuf8PWP, and at https://zalma.com/blog.

NEVER LIE TO YOUR INSURER ABOUT THE EXTENT OF DAMAGE

Post 4833

An insurance coverage dispute that arose from a pipe burst in the historic Pittsfield Building in downtown Chicago. On December 17, 2016, two pipes burst on the tenth floor of the Pittsfield Building, causing water damage to the first ten floors. After the loss event, the Pittsfield Entities filed a claim for the damage with their insurer, The Travelers Indemnity Company (“Travelers”) and could not agree on the extent of damage.

In Pittsfield Development LLC, et al. v. The Travelers Indemnity Company, No. 18CV06576, United States District Court, N.D. Illinois (July 3, 2024) the USDC resolved the action and Travelers’ claim of fraud in the claim presentation discovered during discovery in the plaintiffs’ breach of contract suit.

After initial motion ...

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