In re Dallas National Insurance Company, No. 13-09-00674-CV (Tex. App. 3/17/2010)
| Decision Date | 17 March 2010 |
| Docket Number | No. 13-09-00674-CV.,13-09-00674-CV. |
| Parties | IN RE: DALLAS NATIONAL INSURANCE COMPANY. |
| Court | Texas Court of Appeals |
Before Chief Justice VALDEZ and Justices YAÑEZ and VELA.
Relator, Dallas National Insurance Company ("Dallas National"), filed a petition for writ of mandamus and a motion for temporary relief in which it requested this Court to order the respondent, the Honorable Noe Gonzalez, presiding judge of the 370th District Court of Hidalgo County, to rule on Dallas National's plea to the jurisdiction and motion to dismiss filed on January 3, 2007, in trial court cause number C-886-06-G, styled Vega Roofing, Inc. v. Dallas National Insurance Company, formerly Dallas Fire Insurance Company, and First Mercury Insurance Company. Dallas National asserts that the trial court conducted a hearing on the plea and the motion on March 6, 2007, and that it is entitled to mandamus relief because the respondent has failed to rule on the plea and the motion. We conclude that Dallas National has not met its burden of proving that the trial court clearly abused its discretion in failing to rule on Dallas National's plea and motion; thus, we deny its petition for writ of mandamus and the accompanying motion for temporary relief.
This dispute centers on the existence of insurance coverage for Jose Amparo Alfaro, an employee of Vega Roofing, Inc. ("Vega") who was severely and permanently injured on or about February 23, 2005, during the construction of a residence for Jose E. Garcia. The record reflects that Vega purchased a workers' compensation and employer's liability policy from Dallas National, which was effective from June 20, 2004 to June 20, 2005, and had a $1 million policy limit. Vega was also covered from January 1, 2005 to January 3, 2006, by a commercial general liability policy ("CGL") issued by First Mercury Insurance Company. The CGL policy also had a $1 million personal injury policy limit. Vega alleged that, during the policy period of the Dallas National policy, Alfaro was injured at the Garcia job site and, therefore, Alfaro's injury was covered by the Dallas National policy. Vega subsequently filed a claim with Dallas National, but this claim was denied. Vega alleged that the Alfaro claim was refused because Dallas National denied the existence of a valid and enforceable policy covering Alfaro.
On April 11, 2006, Vega sued Dallas National for breach of contract and for declaratory relief, seeking a judgment that insurance coverage existed for Alfaro under the workers' compensation and employer's liability policy issued by Dallas National. Dallas National filed its original answer and a motion to transfer venue on May 12, 2006. On November 1, 2006, Garcia intervened in the suit, adding J.P. Monday, individually and d/b/a Monday Builders and all other unknown Monday entities as defendants (the "Monday defendants") and alleging various causes of action pertaining to the construction of the residence. Additionally, Garcia asserted that he is a third-party beneficiary on the underlying workers' compensation and employer's liability policy and, thus, sued Dallas National for breach of contract. Alfaro and his wife, Eloisa Verdin Alfaro, also intervened in the suit, alleging that the cause of his injuries was attributable to Vega, the Monday defendants, and possibly Garcia.1
Dallas National filed a plea to the jurisdiction and a motion to dismiss subject to its motion to transfer venue on January 3, 2007. In its plea and motion, Dallas National argued that the trial court lacked subject-matter jurisdiction over the entire case because the Texas Workers' Compensation Commission has exclusive jurisdiction to determine whether, on the date of his injury, Alfaro was covered under the Dallas National policy. The trial court conducted a hearing on Dallas National's plea and motion on March 6, 2007. At the conclusion of the hearing, the trial court took the matter under advisement.
On July 12, 2007, Dallas National sent a follow-up letter and a proposed order granting the plea and motion to the trial court, requesting that the trial court sign the order. On December 17, 2007, Dallas National sent a second letter and proposed order to the trial court, again requesting that the trial court sign the order. Finally, on October 7, 2009, Dallas National sent a third letter and proposed order to the trial court to be signed. Because the trial court has not responded to its requests for a ruling, Dallas National filed this petition for writ of mandamus on December 16, 2009.
Pursuant to this Court's request, real parties-in-interest Vega and Garcia each filed a response to Dallas National's petition. In its response, Vega argues that the trial court has jurisdiction over the underlying dispute because the issue is a breach-of-contract issue, not an issue involving entitlement to workers' compensation benefits. Vega further argues that the trial court had no "ministerial duty" to rule favorably on Dallas National's plea and motion and that the trial court's assertion of jurisdiction does not "create a clear disruption of the orderly processes of government under the facts presented in this case." (Internal quotations omitted.)
In his response, Garcia argues that: (1) because Vega and Garcia's claims against Dallas National are predicated on the absence of coverage, the claims are outside the jurisdiction of the Texas Workers' Compensation Division; (2) Dallas National cannot complain about the trial court's failure to rule because it waited nearly two years between requests for rulings from the trial court; and (3) Dallas National waived any right to complain of the trial court's failure to rule by not objecting. Garcia also asserts that the Alfaros filed a separate non-subscriber lawsuit against Vega and the Monday defendants "in a separate cause and court," and that "Dallas National's claims of court delay are disingenuous because the parties had discussed and allowed the underlying Alfaro liability case to proceed with minimum interference." Dallas National filed a reply responding to most of the arguments made by Vega and Garcia; however, Dallas National did not address the status, nor the existence, of the allegedly related Alfaro non-subscriber lawsuit.
"Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and the relator has no adequate remedy by appeal." In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (citing In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004)). "To show entitlement to mandamus relief, a relator must (1) show that it has no adequate remedy at law to redress the alleged harm and (2) the act sought to be compelled is ministerial and does not involve a discretionary or judicial decision." In re Bramlett, No. 07-09-0113-CV, 2009 Tex. App. LEXIS 5228, at *2 (Tex. App.-Amarillo July 8, 2009, orig. proceeding) (mem. op.) (citing State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)). Furthermore, a relator must also demonstrate entitlement to mandamus relief by showing that "the district court (1) had a legal duty to perform a non-discretionary act, (2) was asked to perform the act, and (3) failed or refused to do so." In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.-Amarillo 2003, orig. proceeding) (citing O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding)); see In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding). Thus, "the party requesting mandamus relief has the burden to provide us with a record sufficient to establish his right to same." Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.-Amarillo 2001, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)); see In re Blakeney, 254 S.W.3d at 661.
Consideration of a motion that is properly filed and before the trial court is a ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992); In re Blakeney, 254 S.W.3d at 661; see also In re Bramlett, 2009 Tex. App. LEXIS 5228, at *3. However, the trial court has a reasonable time within which to perform its ministerial duty. See In re Blakeney, 254 S.W.3d at 661; Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding); see also In re Bramlett, 2009 Tex. App. LEXIS 5228, at *3. A trial court's refusal to rule on a pending motion within a reasonable amount of time constitutes a clear abuse of discretion. See In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.-El Paso 2006, orig. proceeding) (citing In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.-Texarkana 2005, orig. proceeding)).
Whether a reasonable time has lapsed is dependent upon the circumstances of each case. In re Blakeney, 254 S.W.3d at 662. Id. (). In analyzing whether a reasonable period has lapsed, Texas courts have noted the following:
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