Tex. Mut. Ins. Co. as Subrogee of Evaristo Medrano v. OLIVAS
| Citation | 323 S.W.3d 266 |
| Decision Date | 25 August 2010 |
| Docket Number | No. 08-09-00150-CV.,08-09-00150-CV. |
| Parties | TEXAS MUTUAL INSURANCE COMPANY as Subrogee of Evaristo Medrano, Appellant, v. Maurillo Urquidi OLIVAS, Individually and d/b/a Olivas Trucking, Appellee. |
| Court | Court of Appeals of Texas |
OPINION TEXT STARTS HERE
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Jackie M. Kenyon, Austin, TX, Loren R. Smith, Kelly, Smith & Murrah, P.C., Houston, TX, for Appellant.
James M. Rush, Odessa, TX, for Appellee.
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
In four issues, Appellant, Texas Mutual Insurance Company, (Texas Mutual), asserts that the trial court committed error in dismissing this case for want of prosecution, in granting Appellee's motion to dismiss, in denying Texas Mutual's motion to reinstate, and in striking Texas Mutual's petition for intervention. We affirm the judgment of the trial court.
On January 21, 2008, Plaintiff, Evaristo Medrano (Medrano), filed suit against Appellee, Maurillo Urquidi Olivas, individually and doing business as Olivas Trucking (Olivas), for personal injuries arising from a motor vehicle accident that occurred on or about March 28, 2006, while Medrano was allegedly engaged in the course and scope of his duties as an employee of Longhorn Service & Drilling Co. (Longhorn). According to the pleadings, Longhorn carried a policy of worker's compensation insurance issued by Texas Mutual. Texas Mutual was not a named party in Medrano's suit against Olivas.
On October 17, 2008, the trial court issued an order setting the case for trial on March 10, 2009. At 4 p.m. on March 9, 2009, the day before trial, Medrano's attorney, Mr. Israel Guardiola, filed a motion for continuance stating that Medrano had been deported to Mexico, that he had been unable to effectively communicate with Medrano, and that he needed more time to attempt to secure Medrano from Mexico and to file additional medical documentation by affidavit. Mr. Guardiola also filed a motion to withdraw because he would not be able to prepare for trial without the assistance of Medrano.
Olivas responded to the motion for continuance, arguing that the case had been set for trial after settlement negotiations failed and that Olivas, a sole proprietor who earned his living with his truck, was ready for trial, had made business arrangements to attend trial, and was ready to bring the litigation to a close. Olivas also submitted an affidavit in which he specified that he had been relieved to know that the litigation would conclude during the week of March 10, 2009, and stated that, if the trial was continued, he would have to worry about further business interruptions until the trial was rescheduled, would be required to make new arrangements with customers, and would again be required to miss work in order to attend trial.
On March 10, 2009, the date of trial, the trial court conducted a hearing at which it considered Medrano's request for continuance. At the hearing, Mr. Guardiola informed the trial court that: (1) Medrano had been deported “sometime last year;” (2) there had been limited telephonic communications between them; (3) he had not been able to bring Medrano back into the United States; and (4) he did not know if he would be able to bring Medrano back into the country for trial. Mr. Guardiola stated that he would like to attempt to bring Medrano back to the United States because he would not be able to prove his case, specifically as to damages, without Medrano present.
In response, Olivas's counsel, Mr. James Rush, objected to Medrano's motion for continuance, announced that he was ready for trial, and noted that Mr. Olivas had made arrangements to be present for trial since October 2008. Mr. Rush stated that he had filed a motion to dismiss the case due to Medrano's failure to appear for trial.
Responding to Olivas's motion to dismiss, Mr. Guardiola explained that, without a continuance and without Medrano, he could not present a case. The trial court denied Medrano's motion for continuance and, granting Olivas's motion, dismissed the case for want of prosecution without prejudice.
On April 3, 2009, Texas Mutual filed a plea in intervention as a subrogee of Medrano, seeking to assert a right of subrogation to recover from Olivas benefits paid to and on behalf of Medrano. Texas Mutual contended that the intervention was almost essential to effectively protect its interest and would not complicate the case excessively as it arose from the same facts and circumstances as the original suit. Texas Mutual also filed a verified motion to reinstate the case. Citing Texas Mutual Insurance Company v. Ledbetter, 251 S.W.3d 31, 36 (Tex.2008), in both its plea and motion, Texas Mutual asserted that the plea in intervention may be filed after judgment is rendered when the intervenor is a subrogee whose interest was at first adequately represented by someone else but was later abandoned.
Olivas filed both a motion to strike Texas Mutual's plea in intervention and a response to the motion to reinstate the case, noting that the Ledbetter case permitted a subrogee to intervene after judgment or on appeal only if there is neither delay nor prejudice to the existing parties. Olivas asserted that he would suffer substantial delay and prejudice as he had already appeared and was ready for trial on March 10, 2009, and had incurred significant expenses in the form of attorney's fees and videography services secured for the March 10, 2009, trial. 1 Olivas noted that if Texas Mutual's plea and motion were granted, he would again be subject to the process of discovery, and claimed that any additional discovery or new theories of the case that Texas Mutual may wish to pursue would adversely impact Olivas's livelihood as he would again need to set aside time from his business to subject himself to discovery and trial for a second time. Olivas contended that the intervention and reinstatement of the case would not only adversely affect him but would result in lost time to the Court as it evaluated Texas Mutual's theories, would further delay resolution of the case, and argued that Texas Mutual had not offered a remedy for the situation that led to the case being dismissed for want of prosecution, namely, that Medrano was not within the country. Olivas also noted that Texas Mutual had not provided in its motions any of the grounds for reinstatement of a case dismissed under Rule 165a of the Texas Rules of Civil Procedure. Tex.R. Civ. P. 165a.
Texas Mutual responded by providing documentary evidence to show that Mr. Rush was aware of its interest as a subrogee, but did not provide any evidence in support of its assertion that Mr. Guardiola had agreed to represent Texas Mutual's subrogation interest at trial. Rather, Texas Mutual attached letters showing that it had notified Mr. Guardiola as well as Mr. Rush and Olivas's insurance carrier that it was claiming a subrogation lien, was pursuing a subrogation claim or action regarding the accident, and asserting that it had first right to receive reimbursement in the event that Medrano received any money as a result of a settlement or judgment. Texas Mutual also provided an affidavit from its subrogation specialist, Mr. Guerrero, in which he averred: (1) that he had spoken with Olivas's attorney about its subrogation lien, and (2) that he was notified on March 3, 2009, a week before trial was scheduled to commence, that Mr. Guardiola planned to file a motion for continuance as well as a motion to withdraw as Medrano's counsel. Mr. Guerrero stated that he had expected the motion for continuance to be granted.
The trial court held a hearing to consider Texas Mutual's plea in intervention and motion to reinstate. At the hearing, Texas Mutual again asserted that Mr. Guardiola had been representing it at trial and then abandoned the case. Texas Mutual declared to the trial court that it knew how to contact Medrano and would go into Mexico to depose him, and it also asserted that its intervention was timely and involved the same facts as the dismissed case. Then, the following colloquy ensued:
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