Mass. Bay Ins. Co. v. Adkins

• Decision Date: 03 December 2020
• Docket Number: NO. 01-18-01064-CV, NO. 01-18-01071-CV,NO. 01-18-00993-CV,01-18-00993-CV
• Citation: 615 S.W.3d 580
• Parties: MASSACHUSETTS BAY INSURANCE COMPANY, Appellant v. Larry ADKINS, as Personal Representative of the Estate of Newbern Brown Adkins, et al., Appellees Larry Adkins, as Personal Representative of the Estate of Newbern Brown Adkins, et al., Appellants v. AXIS Insurance Company, Great American Insurance Company, St. Paul Protective Insurance Company, Travelers Property Casualty Company of America, and United States Fire Insurance Company, Appellees Dorothy Wilson, as Personal Representative of the Estate of Arlie Richard Able, et al., Appellants v. AXIS Insurance Company, Great American Insurance Company, Massachusetts Bay Insurance Company, St. Paul Protective Insurance Company, Travelers Property Casualty Company of America, and United States Fire Insurance Company, Appellees
• Court: Texas Court of Appeals

615 S.W.3d 580

MASSACHUSETTS BAY INSURANCE COMPANY, Appellant

v.Larry ADKINS, as Personal Representative of the Estate of Newbern Brown Adkins, et al., Appellees

Larry Adkins, as Personal Representative of the Estate of Newbern Brown Adkins, et al., Appellants

v.AXIS Insurance Company, Great American Insurance Company, St. Paul Protective Insurance Company, Travelers Property Casualty Company of America, and United States Fire Insurance Company, Appellees

Dorothy Wilson, as Personal Representative of the Estate of Arlie Richard Able, et al., Appellants

v.AXIS Insurance Company, Great American Insurance Company, Massachusetts Bay Insurance Company, St. Paul Protective Insurance Company, Travelers Property Casualty Company of America, and United States Fire Insurance Company, Appellees

NO. 01-18-00993-CV

NO. 01-18-01064-CV

NO. 01-18-01071-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 3, 2020

Sheila H. Waite, Touchstone, Bernays, Johnson, Beall, Smith & Stollenwerck, L.L.P., Dallas, Texas, for Appellant in 01-18-00993-CV.

Dawn Woelfel Hansen, Natalie E. Rummel, Touchstone, Bernays, Johnson, Beall, Smith & Stollenwerck, L.L.P., Dallas, Texas, for Appellant in 01-18-00993-CV, Appellees in 01-18-01064-CV, 01-18-01071-CV.

Glen W. Morgan, John Werner, Reaud, Morgan & Quinn, LLP, Beaumont, Texas, for Appellants in 01-18-01064-CV, 01-18-01071-CV, Appellees in 01-18-00993-CV.

James L. Ware, Sheehy, Ware & Pappas, P.C., Jessica Z. Barger, Howard L. Close, J. Andrew Love, Brittany R. Greger, Wright, Close & Barger LLP, Houston, Texas, Lawrence L. Germer, Karen R. Bennett, Germer PLLC, Beaumont, Texas, Andrew T. Frankel (Pro Hac Vice), Simpson Thacher & Bartlett LLP, Alison Baker (Pro Hac Vice), James Ruggeri (Pro Hac Vice), Shipman & Goodwin LLP, for Appellees in 01-18-01064-CV, 01-18-01071-CV.

Panel consists of Justices Keyes, Kelly, and Landau.

Evelyn V. Keyes, Justice

These three appeals arise out of two asbestos-related personal injury lawsuits: the Adkins litigation, which was originally filed in 1995 in Jefferson County, Texas, and the Able litigation, originally filed in 1992 in Orange County, Texas. In 2017, both lawsuits were transferred to the 11th District Court of Harris County, which has been designated by the Texas Judicial Panel on Multidistrict Litigation as the court for pretrial matters in asbestos litigation ("the MDL court" or "the pretrial court"). Among other parties, the plaintiffs sued seven insurance companies in both the Adkins litigation and the Able litigation: Massachusetts Bay Insurance Company, Travelers Property Casualty Company, St. Paul Protective Insurance Company, Great American Insurance Company, AXIS Insurance Company, United States Fire Insurance Company, and Nationwide Indemnity (on behalf of Wausau Insurance). All of the insurance companies except for Nationwide filed special appearances.

In the Adkins litigation, the MDL court denied Massachusetts Bay's special appearance and granted the special appearances of the other five insurance companies. The MDL court severed the claims against the other five insurance companies and dismissed those claims.

Two appeals arise out of the Adkins litigation. In appellate cause number 01-18-00993-CV, Massachusetts Bay appeals the MDL court's order denying its special appearance. In three issues, Massachusetts Bay argues that (1) the MDL court erred by concluding that it had waived its special appearance in the Adkins litigation; (2) the MDL court lacked general jurisdiction over it; and (3) the MDL court lacked specific jurisdiction over it.

In appellate cause number 01-18-01064-CV, the Adkins parties challenge the MDL court's orders refusing to remand the case to the original trial court and granting the other insurance companies' special appearances. In three issues, the Adkins parties argue that (1) the MDL court erred by denying the Adkins parties' motions to remand because the litigation had been improperly transferred to the MDL court by an insurance company that was not a party to the litigation; (2) the MDL court erred by denying the Adkins parties' motions to remand because, under Civil Practice and Remedies Code Chapter 90, the litigation was not subject to the MDL rules; and (3) the MDL court lacked subject-matter jurisdiction to rule on the special appearances.

In the Able litigation, the trial court denied the Able parties' motions to remand the case to the original trial court and granted the special appearances of all six insurance companies. In appellate cause number 01-18-01071-CV, the Able parties challenge these orders of the trial court and raise the same issues on appeal that the Adkins parties raise in appellate cause number 01-18-01064-CV.

We affirm.

MDL PROCEEDINGS AND ASBESTOS LITIGATION

Before we address the specific facts of these three cases, we first set out the relevant rules and statutes governing Multidistrict Litigation proceedings generally, statutes governing claims involving asbestos-related injuries, and statutes and rules governing MDL proceedings in asbestos cases specifically.

In 2003, the Texas Legislature created the Judicial Panel on Multidistrict Litigation (JPML). See TEX. GOV'T CODE ANN. §§ 74.161 –.164. Government Code section 74.162 provides:

Subject to Section 74.1625 and notwithstanding any other law, the judicial panel on multidistrict litigation may transfer civil actions involving one or more common questions of fact pending in the same or different constitutional courts, county courts at law, probate courts, or district courts to any district court for consolidated or coordinated pretrial proceedings, including summary judgment or other dispositive motions, but not for trial on the merits. A transfer may be made by the judicial panel on multidistrict litigation on its determination that the transfer will:

(1) be for the convenience of the parties and witnesses; and

(2) promote the just and efficient conduct of the actions.

Id. § 74.162; see id. § 74.1625 (providing that JPML may not transfer most actions brought under the Deceptive Trade Practices Act or action brought under Texas Human Resources Code Chapter 36). The Legislature provided that the JPML "must operate according to rules of practice and procedure" adopted by the Texas Supreme Court and that the rules adopted must, among other things, "allow the panel to transfer related civil actions for consolidated or coordinated pretrial proceedings," "allow transfer of civil actions only on the panel's written finding that transfer is for the convenience of the parties and witnesses and will promote the just and efficient conduct of the actions," and "require the remand of transferred actions to the transferor court for trial on the merits." Id. § 74.163(a). The judge to whom an action is transferred "may preside over the transferred action as if the transferred action were originally filed in the transferor court." Id. § 74.164.

The JPML "may transfer cases to a pretrial court if they are related and transfer will further the goals of convenience, efficiency, and justice." In re Farmers Ins. Co. Wind/Hail Storm Litig. 2 , 506 S.W.3d 803, 805 (Tex. J.P.M.L. 2016). Rule 13 of the Texas Rules of Judicial Administration, also enacted in 2003, governs multidistrict litigation proceedings and "aims to further these goals by (1) eliminating duplicative and repetitive discovery, (2) minimizing conflicting demands on witnesses, (3) preventing inconsistent decisions on common issues, (4) reducing unnecessary travel, and (5) allocating finite judicial resources intelligently." Id. Rule 13 applies to (1) civil actions involving one or more common questions of fact that were filed in a constitutional county court, county court at law, probate court, or district court on or after September 1, 2003, and (2) civil actions filed before September 1, 2003, that involve claims for asbestos-related injuries "to the extent permitted by chapter 90 of the Texas Civil Practice and Remedies Code." TEX. R. JUD. ADMIN. 13.1(b), reprinted in TEX. GOV'T CODE ANN. , tit. 2, subtit. F app; In re Silica Prods. Liab. Litig. , 216 S.W.3d 87, 88 (Tex. J.P.M.L. 2006).

"A party in a case" may file a written motion with the JPMDL seeking transfer of the case and related cases to a pretrial court for consolidated or coordinated pretrial proceedings. TEX. R. JUD. ADMIN. 13.3(a) (providing who may file motion to transfer); TEX. R. JUD. ADMIN. 13.2(e) (defining "pretrial court"). The motion must, among other things, state the common question or questions of fact involved in the case and must contain "a clear and concise explanation of the reasons that transfer would be for the convenience of the parties and witnesses and would promote the just and efficient conduct of the cases." TEX. R. JUD. ADMIN. 13.3(a). The JPML may order transfer of the case and related cases to a pretrial court "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 ); In re Farmers Ins. Co. Wind/Hail Storm Litig. 2 , 506 S.W.3d at 805 ("This MDL Panel may transfer cases to a pretrial court if they are related and transfer will further the goals of convenience, efficiency, and justice."); In re Wellington Ins. Co. Hailstorm Litig. , 427 S.W.3d 581, 582–83 (Tex. J.P.M.L. 2014) ("Relatedness is a threshold question. If cases are not related we lack authority to assign them to an MDL pretrial judge, even if such an assignment would serve the interests of convenience and efficiency.").

Rule 13.5 provides that a case is deemed transferred from the original trial court to the pretrial court when a notice of transfer is filed with both courts. TEX. R. JUD. ADMIN. 13.5(a). After the notice of transfer is filed in the original trial court, "the trial...