by Rachel Stinson, Trial and Appellate Attorney for the City of Houston
01-19-00391-CV, In Re Colonial County Mutual Insurance Company.
Panel consists of Justices Lloyd, Goodman, and Landau.
Memorandum opinion issued November 5, 2019, conditionally granting writ challenging trial court’s denial of a motion to abate discovery regarding an insured’s Insurance Code and DTPA claims against her insurer because the claims were contingent on the insurer’s alleged failure to pay uninsured/underinsured motorist benefits owed under the policy.
Although an insured’s breach of contract claim is separate and distinct from a claim for bad faith, Insurance Code violations, or DTPA violations, when those claims are based on the insurer’s alleged failed to pay uninsured/ underinsured motorist benefits under a policy, those claims are necessarily contingent on a judgment that (1) the allegedly uninsured/underinsured motorist was negligent and (2) such negligence caused the insured damages. And such claims for bad faith, Insurance Code violations, or DTPA violations are further contingent on a finding that the insurer breached the insurance policy contract. The trial court should have severed and fully abated all of the insured’s extra-contractual bad faith, Insurance Code, and DTPA claims against Colonial, including discovery, until the insured secured both a judgment against the uninsured/underinsured motorist and a finding that Colonial breached the contract.
The court of appeals found Colonial lacked an adequate remedy by appeal where pending discovery requests, including requests for production, interrogatories, and requests for admission were aimed at the extra-contractual claims and such discovery would force Colonial to “engage in discovery and prepare for claims that may be rendered moot and may have not even yet accrued.”
No. 01-18-00464-CV, UT Health Science Center at Houston v. Owens
Panel consists of Justices Lloyd, Landau, and Countiss.
Memorandum Opinion issued August 29, 2019, reversing the denial of UTHSCH’s plea/motion to dismiss and rendering judgment dismissing plaintiff’s claims for lack of jurisdiction.
Plaintiff sued a physician, who subsequently filed a motion to dismiss asserting that he was an employee of UTHSCH at the time he treated the plaintiff, and that Texas Civil Practice and Remedies Code section 101.106(f) requires a governmental employee who is sued for conduct within the course and scope of his employment to be dismissed and his governmental employer substituted in his place. Plaintiff then amended her petition, dropping the physician and adding UTHSCH as a defendant, and alleging it was directly and vicariously liable for the physician-employee’s negligence.
UTHSCH filed a plea to the jurisdiction and moved to dismiss, contending its governmental immunity was not waived because plaintiff failed to provide written notice (and it did not acquire actual notice) within six months of the alleged negligence.
Plaintiff insisted that she had no reason to suspect the physician was an employee of a governmental unit until the day he filed a motion to dismiss under section 101.106(f), and she had amended her petition and served UTHSCH with process, and UTHSCH appeared in the suit, within six months of that motion.
Reversing the trial court’s denial of the plea to the jurisdiction, the court of appeals found the notice period began when the physician-employee treated the plaintiff, not when he filed his motion to dismiss. Because a suit against a governmental employee for acts within the course and scope of his employment is in fact a claim against the employee in his official capacity, the court of appeals concluded plaintiff’s lawsuit was “in reality, a suit against UTHSCH all along.”
Further, even though the physician’s motion was filed five years after the lawsuit began, the court again confirmed that a plea to the jurisdiction may be raised at any time.
Finally, as to plaintiff’s request that she should be allowed again amend her petition to sue both UTHSCH and the physician-employee in his individual capacity, her previous amendment of her petition to drop the physician-employee and add UTHSC as a defendant meant that, under Texas Civil Practice and Remedies Code section 101.106(a), she had filed suit against a governmental unit and made an “irrevocable election” that barred any claims against the physician individually.