In re Nat'l Lloyds Ins. Co. Hail Litig.

• Decision Date: 13 May 2014
• Docket Number: MDL No. 14–0004.
• Citation: 434 S.W.3d 345
• Parties: In re NATIONAL LLOYDS INSURANCE COMPANY HAIL LITIGATION.
• Court: Judicial Panel on Multidistrict Litigation

434 S.W.3d 345

In re NATIONAL LLOYDS INSURANCE COMPANY HAIL LITIGATION.

MDL No. 14–0004.

Texas Judicial Panel on Multidistrict Litigation.

May 13, 2014.

Justice ELIZABETH LANG MIERS delivered the opinion of the MDL panel.

National Lloyds asks that we consolidate twenty-six cases, "and any future related cases that may be filed," into three different pretrial MDL courts. It contends that the cases are related geographically and "allege the same contractual and extra-contractual claims and/or seek the same discovery regarding National Lloyds' ‘general business practice’ and ‘outcome oriented investigations' with regard to handling of property damage claims following a storm." National Lloyds generally refers to the cases as "claims arising from hail and wind storms in close proximity" and describes the various cases and how they "can be grouped into three distinct geographic regions for purposes of relatedness" as follows:

(1) The 17 North Texas cases in Appendix A consist of cases filed in Dallas and Tarrant counties, and contain dates of loss between July 2010 and May 2013;

(2) The 5 Central Texas cases in Appendix B consist of cases filed in McLennan and Bexar counties, and contain dates of loss between October 2009 and October 2012; and

(3) The 4 Southeast Texas cases in Appendix C consist of cases filed in Wharton, Harris and Liberty counties and contain dates of loss between 2011 and April 2013.

The appendices identify the styles of the cases, the courts in which they are pending, and the law firms representing the plaintiffs in each case, but do not explain what the various weather or other events are that underlie the claims in each lawsuit or when they occurred.

Plaintiffs oppose the motion, arguing that the cases are not related, that there is no authority to support the creation of multiple MDLs based on arbitrarily designated "distinct geographic regions involving more than 15 different dates of loss ranging from the years 2009 to 2013," and alleging multiple types of claims. Plaintiffs contend that "[e]ach plaintiffs' case stems not only from different losses, but also from the collective allegations of each individual complaint, which delve into not only National Lloyds' general business practices, but the specifics of each individual claim, individual adjusters' and claim examiners' conduct, National Lloyds' policy provisions and coverages afforded individual insurers, and National Lloyds' application of its policies and procedures in regards to each individual case." They argue that National Lloyds is simply seeking its own MDL which we have already held is not permitted. Plaintiffs contend that our previous opinion disposes of the issues here, characterize this motion as a "second bite at the apple," and contend that the motion should be denied. They also ask for sanctions.

ARE THESE CASES "RELATED"?

Rule 13.3(l ) of the Texas Rules of Judicial Administration provides: "The MDL Panel may order transfer if three members concur in a written order finding that related cases involve one or more common questions of fact, and that transfer to a specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases." Tex.R. Jud. Admin. 13.3(l ), reprinted in Tex. Gov't Code Ann., tit.2, Subtitle F app. (West 2013); see Tex. Gov't Code Ann. § 74.162 (West 2013) ; In re Ad Valorem Tax Litig., 216 S.W.3d 83, 84 (Tex.M.D.L. Panel 2006).

National Lloyds argues that "[t]he cases in appendices A, B and C meet the Panel's definition of relatedness because they consist of one or more weather events occurring in close proximity to one another," seek the same discovery, make the same allegations, and:

The cases within each of these three groups are related to one another because they concern National Lloyds' same general business practice of adjusting claims in that area, and thus implicate the same common questions of fact surrounding the same adjusters and business practices for evaluating and paying for property damage caused by hail and wind storms there.

To support its argument that the cases are related, National Lloyds relies on our opinion in In re National Lloyds Insurance Co. Hurricane Litigation, 422 S.W.3d 926 (Tex.M.D.L. Panel 2013), where we stated:

Cases are related where one or more significant weather events occurring in close proximity form the framework of the litigation, and the litigation involves allegations of similar standard business practices. Individual lawsuits will address wind, wind-driven rain, hail, wind-driven hail, storm surge, rising water, flooding, and/or rainfall. It is in this context that allegations of standard business practices giving rise to contract, statutory, and extra-contractual damages highlight the importance of coordinated management that will serve the convenience and efficiency of the litigants and the lawyers.

Id. at 930.

In that case, National Lloyds added eighty-five cases as tag-along cases to a hurricane MDL pretrial court in Houston. That court remanded all but one of the cases to their original courts. National Lloyds filed a motion for rehearing asking us to consolidate the cases. We denied the motion to consolidate the cases in the Houston hurricane MDL pretrial court, consolidated sixty-three cases in an Hidalgo County hail storm MDL pretrial court, and denied the motion for rehearing as to the twenty-one other cases. Id. at 931–32. In evaluating whether and where to consolidate the cases, we concluded "that MDL treatment is inappropriate when the only common fact issue relates to standardized business practices and extra-contractual claims. To hold otherwise would result in insurer-specific MDL courts to which all cases raising those issues would be transferred. There must be something more." Id. at 930. We determined that the sixty-three hail storm cases we ultimately consolidated with the Hidalgo County hail storm MDL pretrial court were not related to the hurricane cases we had previously consolidated in the Houston hurricane MDL pretrial court. Id. But we determined that they were related to the Hidalgo County hail storm MDL pretrial court because they all involved hail storms in the same area that occurred in 2012, although each lawsuit may address different aspects of those weather events. Id. at 930–31.

The twenty-one remaining cases we discussed in that opinion are also among the twenty-six cases here. As to those twenty-one remaining cases, we said:

We turn now to the remaining 21 cases subject to Judge Miller's remand which are scattered across Texas. National Lloyds informs us that these cases are related to the current National Lloyds MDL litigation: "Their only common fact issue is the way National Lloyds handles claims." We can glean only that the claims arise from a variety of wind storms, hail storms, plumbing leaks, and other assorted incidents occurring at unspecified times. Based upon our holding that claims challenging standard business practices standing alone are insufficient to establish relatedness, we deny the Motion for Rehearing with respect to these cases.

Id. at 931.

National Lloyds acknowledges here, as it did in In re National Lloyds Insurance Co. Hurricane Litigation, that the only common questions of fact are the business practices and claims handling. See id. at 931–32. But we have specifically held that different cases involving unrelated weather events are not "related" solely because they involve allegations of similar business practices. Id. at 931–32.

National Lloyds also states that the cases, as separated into three geographical groups, satisfy our requirement that the cases involve "one or more significant weather events in close proximity." But there do not seem to be any common issues about the weather events other than the claim that losses resulted from various hail and windstorms. The "one or more significant weather events occurring in close proximity" to which we referred in In re National Lloyds Hurricane Litigation were a series of hail storms occurring in Hidalgo County in 2012, which we consolidated in one MDL court, and earlier hurricanes, which we consolidated in another. Id. We have consolidated cases in an MDL pretrial court that involved claims from similar events occurring two years apart, In re Tex. Windstorm Ins. Ass'n Hurricanes Rita and Humberto Litig., 339 S.W.3d 401 (Tex.M.D.L. Panel 2009) (Hurricanes Rita and Humberto), claims from similar events that occurred over a period of two years, In re State Farm Lloyds Hurricane Litig., 387 S.W.3d 130 (Tex.M.D.L. Panel 2013) (changes in claims handling for shingle damage), and over a one year period from the same type of event, In re National Lloyds Ins. Co. Hurricane Litig., 422 S.W.3d 926 (2012 hail storms in Hidalgo County). But we have not consolidated cases arising from a variety of unrelated weather events occurring over a two or three year period.

These cases involve "dates of loss" from hail and windstorms occurring over a period of four years originating in seven different counties. And even within the proposed MDL geographic groups, the "dates of loss" cover a period of three years in two groups and two years in the other group. The hail and wind storms here are not related and there are no issues common to the cases...