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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Detail Charging Defendant for Fraud is Sufficient
Post 5242
Read the full article at https://lnkd.in/g_HVw36q, see the video at https://lnkd.in/gpBd-XTg and at https://lnkd.in/gzCnBjgQ and at https://zalma.com/blog plus more than 5200 posts.
Charges that Advises the Defendant of the Crime Cannot be Set Aside
In United States Of America v. Lourdes Navarro, AKA Lulu, No. 25-661, United States Court of Appeals, Ninth Circuit (December 4, 2025) Lourdes Navarro appealed the district court’s denial of her motion to dismiss the indictment and enter final judgment was in error.
FACTUAL BACKGROUND
The indictment alleged that insurers reimburse only for medically necessary services. Navarro performed unnecessary respiratory pathogen panel (RPP) tests on nasal swabs collected from asymptomatic individuals for COVID-19 screening.
Navarro billed over $455 million to insurers for those additional RPP tests that she knew to be medically unnecessary. These allegations constituted a plain, concise, and definite written ...
Louisiana Statute Prevents Enforcement of Contract Term Requiring Arbitration of Disputes
Post 5241
Read the full article at https://www.linkedin.com/pulse/international-convention-requiring-enforcement-award-barry-sttdc, see the video at and at and at https://zalma.com/blog plus more than 5200 posts.
In Town of Vinton v. Indian Harbor Insurance Company, Nos. 24-30035, 24-30748, 24-30749, 24-30750, 24-30751, 24-30756, 24-30757, United States Court of Appeals, Fifth Circuit (December 8, 2025) municipal entities including the Town of Vinton, et al sued domestic insurers after dismissing foreign insurers with prejudice. The insurers sought arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) but the court held Louisiana law — prohibiting arbitration clauses in such policies—controls, as the Convention does not apply absent foreign parties who ...
Refusal to Provide Workers’ Compensation is Expensive
Post 5240
Read the full article at https://lnkd.in/guC9dnqA, see the video at https://lnkd.in/gVxz-qmk and at https://lnkd.in/gUTAnCZw, and at https://zalma.com/blog plus more than 5200 posts.
In Illinois Department of Insurance, Insurance Compliance Department v.USA Water And Fire Restoration, Inc., And Nicholas Pacella, Individually And As Officer, Nos. 23WC021808, 18INC00228, No. 25IWCC0467, the Illinois Department of Insurance (Petitioner) initiated an investigation after the Injured Workers’ Benefit Fund (IWBF) was added to a pending workers’ compensation claim. The claim alleged a work-related injury during employment with the Respondents who failed to maintain workers’ compensation Insurance.
Company Overview:
USA Water & Fire Restoration, Inc. was incorporated on January 17, 2014, and dissolved on June 14, 2019, for failure to file annual reports and pay franchise taxes. It then operated under assumed names including USA Board Up & Glass Co. and USA Plumbing and Sewer. The business ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
