Loretta Negrete Soliz v. Jerry Lee Cofer, Thomas Noralez, and Trinity Universal Insurance Company

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00246-CV

Loretta Negrete Soliz, Appellant

v.

Jerry Lee Cofer, Thomas Noralez, and Trinity Universal Insurance Company, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 95-15408, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

Appellant Loretta Soliz appeals the district court's judgment denying her uninsured

motorist coverage. In ten issues, Soliz contends the district court erred by (1) relitigating a liability

issue that had been determined by default judgment, (2) failing to award her attorney's fees, (3)

admitting the testimony of two witnesses, (4) granting a partial summary judgment, and (5)

reconsidering and vacating a prior order of severance and abatement and dismissing one of her

claims. We will affirm the district court's judgment.

BACKGROUND

Soliz sustained injuries when her automobile collided with another automobile driven

by Jerry Lee Cofer, an uninsured motorist. The automobile driven by Cofer was owned by Thomas

Noralez. Soliz's automobile was insured by Trinity Universal Insurance Company ("Trinity"), and

her policy included uninsured motorist coverage. Trinity denied Soliz's personal injury claim,

contending that she was not entitled to benefits under the policy because she was at least fifty percent

responsible for the accident. Soliz brought suit against Cofer, Noralez, and Trinity.

Soliz sued Cofer and Noralez for negligence and Trinity for breach of contract and

extra-contractual violations. Trinity answered by a general denial. Cofer and Noralez failed to

appear or answer after service and return of citation. Soliz obtained separate interlocutory default

judgments against Cofer and Noralez; neither judgment allocated negligence or awarded an amount

of compensatory damages. (1)

In advance of trial, Soliz apparently sought to take the deposition of William Nalle,

Trinity's accident reconstruction expert. Instead, Soliz and Trinity entered into a Rule 11 Agreement

("the agreement") on April 1, 1999, providing that Trinity would not call Nalle to testify at trial in

exchange for Soliz's agreement to stipulate to admission of a diagram prepared by Nalle. The cause

was tried to a jury. On May 3, 1999, the jury found that Soliz suffered $143,440 in damages and

apportioned the liability fifty percent each between Soliz and Cofer. The district court rendered

judgment in favor of Soliz for half of the actual damages; the judgment did not include interest,

attorney's fees, or statutory damages under article 21.55 of the Texas Insurance Code. See Tex. Ins.

Code Ann. art. 21.55, § 6 (West Supp. 2002). Soliz filed a motion for new trial. The district court

initially denied that motion but eventually set aside the judgment and signed an order granting a new

trial.

Before the second trial and in response to an interrogatory, Trinity informed Soliz that

it intended to call Nalle to testify at trial. Contending that the agreement barred his testimony, Soliz

filed a "motion to strike" Nalle. Trinity responded that the parties' earlier agreement applied only

to the original trial, and not to the second one. The district court denied Soliz's motion, and Soliz

took Nalle's deposition in advance of trial. Nevertheless, Soliz filed an amended petition asserting

a breach of contract action against Trinity and its counsel for their refusal to honor the agreement.

The trial court granted a joint motion severing the breach of contract action. The second trial

commenced January 8, 2001. The district court rendered judgment on the jury verdict and dismissed

the contract action with prejudice .

At the second trial, the jury found that as between Soliz and Cofer, Soliz was 100%

negligent in causing the accident. However, the final judgment awarded her damages in the amount

of $88,410.00 against Cofer and Noralez based on the previous default judgments determining their

liability. (2) In the final judgment, the district court ruled that the default judgments against Cofer and

Noralez were not binding on Trinity because Soliz never obtained Trinity's written consent before

filing suit against Cofer and Noralez. The court found that pursuant to the uninsured motorist policy,

"[a]ny judgment for damages arising out of a suit brought without [Trinity's] written consent is not

binding against [Trinity]." Because the jury failed to find Cofer negligent and assessed no damages,

the trial court ordered that Soliz take nothing against Trinity. The district court also found as a

matter of law that there was no breach of the Rule 11 agreement because it applied only to the first

trial. Soliz filed a motion for new trial and, in the alternative, motion for judgment notwithstanding

the verdict (JNOV), both of which were overruled. This appeal followed.

DISCUSSION

Default Judgments

Soliz premises her first four issues on the assertion that the default judgments against

Cofer and Noralez established their liability as a matter of law and therefore it was error to include

questions in the court's charge asking the jury to determine the negligence and percent of negligence

as between Cofer and Soliz. In issue one, she argues that the district court erred in litigating the

issue of liability when the default judgments had already established liability. In issue two, she

contends that the trial court erred in submitting the liability issue to the jury instead of limiting the

trial to damages. In issue three, she complains that the district court erred when it denied her motion

for JNOV. In her fourth issue, she argues that because the final judgment entitled her to recover

damages from Cofer and Noralez, the district court erred in rendering a take nothing judgment

against Trinity.

At the outset, we note that the record reflects that Soliz did not object to the

submission of any of the questions asked of the jury in the court's charge. Normally, "a party who

finds fault with a proposed jury question need only object to the inclusion of the question in the

charge." Jim Howe Homes, Inc. v. Rogers , 818 S.W.2d 901, 902 (Tex. App.--Austin 1991, no writ);

see also Tex. R. App. P. 33.1(a) ("As a prerequisite to presenting a complaint for appellate review,

the record must show that the complaint was made to the trial court by a timely request, objection,

or motion. . . ."); Holland v. Wal-Mart Stores , 1 S.W.3d 91, 94-95 (Tex. 1999) (party waives error

by failing to object to charge or raise any other objection in trial court). Soliz argues that the filing

of her motion for JNOV preserved error. See Sunwest Bank of El Paso v. Basil Smith Eng'g Co. , 939

S.W.2d 671 , 673 n.1 (Tex. App.--El Paso 1997, writ denied). The authority for Soliz's proposition

is limited to a footnote in Sunwest Bank :

ABC/Sunwest filed a motion for judgment notwithstanding the verdict requesting,

among other things, that the trial court disregard the jury's response to the discovery

rule question as immaterial to the causes of action on which the jury found liability.

In that motion, ABC/Sunwest advanced the same argument it makes on appeal. We

find the JNOV sufficient to preserve error on the issues of the trial court's failure to

disregard the immaterial finding.

Id. The Sunwest Bank court cites no authority for this conclusion, and the language of the footnote

is limited to the determination of issues of law. See id. ; see also United Parcel Serv. v.

Tasdemiroglu , 25 S.W.3d 914, 916 (Tex. App.--Houston [14th Dist.] 2000, pet. denied) (noting that

matters of law can be preserved through motion for JNOV). Soliz's motion for JNOV might have

been sufficient to preserve error according to Sunwest Bank if she were complaining as to the legal

sufficiency of the evidence to support the jury's verdict. See, e.g. , Cecil v. Smith , 804 S.W.2d 509,

510-11 (Tex. 1991); Jim Howe Homes, Inc. , 818 S.W.2d at 905 . (3) However, it does not follow that

Soliz's motion for JNOV preserved her complaint of error in the submission of the questions in the

jury charge. Because Soliz did not object to the charge at trial, she cannot raise her complaints on

appeal. Evidence on the questions submitted to the jury was presented by both parties, the charge

was approved without objection, and the parties argued the charge to the jury. In short, the case was

tried on the basis reflected in the charge.

While we are not convinced that Sunwest Bank supports Soliz's contention that she

preserved her complaint by filing a motion for JNOV, one court has held that an appellant preserved

his complaint regarding the submission of an issue to the jury that had been previously resolved in

his favor through an agreed judgment. See Neller v. Kirschke , 922 S.W.2d 182, 187 (Tex.

App.--Houston [1st Dist.] 1995, writ denied). The court reasoned that because the appellant filed

a motion for directed verdict, a motion for JNOV, and a motion for a new trial on the same issue,

he preserved the complaint for appeal. Id. Assuming without deciding that Soliz preserved her

complaint despite failing to object at the time of submission, we will consider the merits of her

complaint.

The disposition of Soliz's first four issues is controlled by a single question: Did the

policy's consent to sue provision protect Trinity from being bound by the liability established by the

default judgments against Cofer and Noralez? We hold that it did. Here, the district court conducted

a trial on Cofer's liability and submitted the issue to the jury after concluding that Trinity was not

bound by the default judgments because Soliz failed to obtain Trinity's written consent to sue Cofer

and Noralez. (4) Soliz did not obtain Trinity's written consent before proceeding against Cofer and

Noralez, but she contends that the specific consent to sue provision at issue has no application to the

present controversy. Although the final judgment entitled Soliz to recover $88,410.00 against Cofer

and Noralez based on the default judgments, at the time the default judgments were rendered they

were interlocutory, and established liability only. The specific wording of the policy provision states

that Trinity is not bound by any judgment "for damages " obtained without its consent. (Emphasis

added). The provision does not address a judgment for liability . Therefore, Soliz contends, the

language of the provision unambiguously proscribes its application to the default judgments against

Cofer and Noralez as they are limited to a determination of liability. In the alternative, she argues

that if the provision is ambiguous, it must be interpreted in her favor. See, e.g ., National Union Fire

Ins. Co. v. Hudson Energy Co. , 811 S.W.2d 552, 555 (Tex. 1991) (holding that ambiguous policy

provisions must be construed strictly against insurer and liberally in favor of insured).

Texas courts have held the identical consent to sue language to be unambiguous and

to include protection from default judgment liability even though the express language of such

provisions refers only to damages. (5) See, e.g. , State Farm Mut. Auto. Ins. Co. v. Azima , 896 S.W.2d

177, 178 (Tex. 1995); Lichte v. Government Employees Ins. Co. , 825 S.W.2d 431, 431 (Tex. 1991);

Whitehead v. State Farm Mut. Auto. Ins. Co. , 952 S.W.2d 79, 83 (Tex. App.--Texarkana 1997),

rev'd on other grounds , 988 S.W.2d 744 (Tex. 1999); Simpson v. GEICO Gen. Ins. Co. , 907 S.W.2d

942, 945 (Tex. App.--Houston [1st Dist.] 1995, no writ).

According to the supreme court, the policy consideration underlying a consent to sue

provision "is to protect the carrier from liability arising from default judgments against an uninsured

motorist or from insubstantial defense of the uninsured motorist." Azima , 896 S.W.2d at 178

(emphasis added); see also Allstate Ins. Co. v. Hunt, 469 S.W.2d 151, 153 (Tex. 1971) (affirming

trial court's decision to prohibit insurer from assisting in the defense of an uninsured motorist where

insurer's participation would create a conflict of interest). In light of prior case law and because the

policy consideration underlying consent to sue provisions is clearly applicable in the present case,

we reject the argument that the language of Trinity's consent to sue provision precludes its

application.

The well established purpose of the consent provision also prevents Soliz from

asserting that Trinity waived its right to consent by entering a general denial. A number of cases

have rejected this waiver argument. (6) See, e.g. , U.S. Fire Ins. Co. v. Millard , 847 S.W.2d 668, 674

(Tex. App.--Houston [14th Dist.] 1993, no writ); Government Employees Ins. Co. v. Lichte , 792

S.W.2d 546, 548 (Tex. App.--El Paso 1990, writ denied); Criterion Ins. Co. v. Brown , 469 S.W.2d

484, 485 (Tex. Civ. App.--Austin 1971, writ ref'd n.r.e.). In Lichte , the court of appeals held that

it was error for the trial court to render summary judgment against the insurance carrier on the basis

that it waived its right to consent to be bound by a default judgment simply because it filed a general

denial. See Lichte , 792 S.W.2d at 547-48 . The court reasoned that while the consent provision

required the insured to obtain the insurer's written consent for any judgment against an uninsured

motorist to be binding, the provision was not a condition precedent to filing suit. Id. at 548 . In that

case, the insurer did not attempt to use the consent provision to defeat coverage under the policy, but

rather sought compliance with the policy's provisions. Id.

In Criterion Insurance Company , this Court enforced a similar consent provision,

stating that the policy prescribed that without the written consent to bring suit against the uninsured

motorist, liability and damage issues would have to be relitigated in the suit against the insurance

carrier. Criterion Ins. Co. , 469 S.W.2d at 485; see also Allstate Ins. Co. v. Hunt , 469 S.W.2d 151,

153 (Tex. 1971). An insured seeking the benefits of his uninsured motorist coverage has several

choices:

(1) Sue his insurance company directly without suing the uninsured motorist;

(2) Obtain the written consent from his insurance carrier and then sue the uninsured

motorist alone; the judgment obtained then would be binding on the insurance

carrier; or

(3) Without the consent of the insurance carrier, proceed against the uninsured

motorist. However, any judgment obtained against the uninsured motorist will

not be binding on the insurance carrier. Liability and damages will have to be

relitigated.

Lichte , 792 S.W.2d at 548 (citing Criterion , 469 S.W.2d at 485 ). Here, Soliz chose the latter option;

she sued Cofer and Noralez without Trinity's written consent. The default judgments against Cofer

and Noralez do not bind Trinity. The fact that Trinity had notice of the suit and filed a general denial

is not dispositive of Soliz's entitlement to uninsured motorist protection. "An insurer's knowledge

that a suit has been filed is not equivalent to 'written consent' and will not bind an insurer to a

judgment obtained in a suit brought against an uninsured motorist." Millard , 847 S.W.2d at 674

(citing Criterion , 469 S.W.2d at 485 ).

The Millard court further held that default judgments do not collaterally estop

relitigation of liability and damages by the insurer in a suit on uninsured motorist coverage:

Collateral estoppel bars relitigation of an issue if (1) the facts sought to be litigated

in the second action were fully and fairly litigated in the prior action; (2) those facts

were essential to the judgment in the first action; and (3) the parties were cast as

adversaries in the first action. For collateral estoppel to be invoked, it is only

necessary that the party against whom the plea of collateral estoppel is asserted be a

party or in privity with a party in the prior litigation. Privity is not established by the

mere fact that persons may happen to be interested in the same question or in proving

the same state of facts. Privity connotes those who are in law so connected with a

party to the judgment as to have such an identity of interest that the party to the

judgment represented the same legal right.

Millard , 847 S.W.2d at 674 (citations omitted). Like the insurer in that case, Trinity should not be

estopped from relitigating the liability determinations in the default judgments because Trinity was

not in privity with Cofer and Noralez. (7) Trinity could exercise no control over the suit, its interests

were not represented by Cofer and Noralez, and it is not their successor in interest. Further, the facts

of a case are not fully and fairly litigated in a default judgment. The district court was obliged to

give effect to the consent to sue provision and thereby protect Trinity from any liability established

by the default judgments. We therefore hold that the district court did not abuse its discretion in

allowing the issue of liability to be litigated despite the default judgments against Cofer and Noralez,

nor did it abuse its discretion in submitting the liability issue to the jury. See Texas Dept. of Human

Servs. v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990). Further, the default judgments were interlocutory

and subject to reconsideration. Finally, they did not determine the percent of Cofer's negligence as

compared to Soliz, and this jury found Soliz to be 100% negligent in causing the accident.

Accordingly, the district court did not err in denying Soliz's motion for JNOV. (8) For all of these

reasons, we overrule appellant's first four issues.

Attorney's Fees

In her fifth issue, Soliz argues that the trial court erred in failing to award her

attorney's fees as prescribed by Chapter 38 of the Texas Civil Practice and Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann. §§ 38.001 -.006 (West 1997). In addition, she argues in her sixth issue

that article 21.55 of the Texas Insurance Code entitles her to the eighteen percent statutory penalty

and attorney's fees because Trinity failed to pay her claim within the statutory period. Tex. Ins. Code

Ann. art. 21.55, § 6 (West Supp. 2002). In light of our disposition of her other points, we overrule

her fifth and sixth issues.

Rule 11 Agreement

In her seventh issue, Soliz contends that the district court erred in allowing the

testimony of Nalle in the face of a Rule 11 agreement by which Trinity had agreed not to call him

at trial. Soliz did not object when Nalle testified at trial; therefore, she did not preserve this issue

for appeal. (9) In any event, we hold that the district court did not err in allowing Nalle to testify at

trial.

Soliz urges that the Rule 11 agreement was valid and enforceable against Trinity in

the course of the second trial. We note that whether Trinity breached the agreement is not the

question presented to us on appeal; we are asked to review the district court's decision to allow Nalle

to testify. The admission or exclusion of evidence is committed to the district court's sound

discretion. Gee v. Liberty Mut. Fire Ins. Co. , 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses

its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any

guiding rules or principles. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42

(Tex. 1985). Here, Soliz failed to show that the district court abused its discretion by allowing Nalle

to testify.

The record reflects that the district court allowed Nalle to testify only after careful

consideration of the agreement. During the hearing on Trinity's pretrial motions, the district court

considered Soliz's contention that the agreement (10) should control in the second trial. The court also

considered its previous granting of a continuance to Soliz in order to depose Nalle and, if necessary,

acquire her own expert. The court concluded:

It's not every Rule 11 Agreement that wouldn't be effective in a second trial. It's

going to depend on the Rule 11 Agreement. But if you get a new trial, I think you

can change your trial strategy. And the Court's allowed you to depose Nalle and

given you extra time to be prepared and to hire your own expert. . . .

The district court allowed Nalle to testify only after a careful analysis of the agreement in its context.

Soliz has not shown that the decision to allow Nalle to testify constituted an abuse of discretion. See

Downer , 701 S.W.2d at 241 ; see also National Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527-28

(Tex. 2000). Accordingly, we overrule Soliz's seventh issue.

Objections to Expert's Qualifications

In her eighth issue, Soliz contends that the district court "erred in failing to exclude

and in failing to grant a new trial in the face of the testimony of Officer Payne and William Nalle,

in that the testimony was inherently unreliable and not founded in reasonable observations or

scientific analysis." Soliz failed to preserve this issue for appeal. If a party does not object to

evidence presented at trial, it waives any error in its admission. Tex. R. App. P. 33.1(a)(1); see also

Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 412 (Tex. 1998) (refusing to entertain claim as

to reliability of scientific evidence because party failed to preserve error by not objecting at trial).

When Payne and Nalle testified, Soliz did not object.

Soliz argues that the issue was preserved for appeal because her brief in support of

her motion to exclude the expert testimony of Payne and Nalle gave the district court an opportunity

to exclude their testimony. Normally a motion to exclude preserves error as a pretrial objection. See

Maritime Overseas , 971 S.W.2d at 409 . However, the record must also reflect that the party urging

the motion obtained a ruling. See Tex. R. App. P. 33.1(a)(2). The record does not reflect a ruling

on Soliz's motion to exclude, and Soliz does not direct us to a place in the record where she obtained

a ruling on her objection. Therefore, her eighth issue is overruled. See Tex. R. App. P. 38.1(h).

Extra-contractual Claims

In her ninth issue, Soliz complains about the district court's disposition of her

extracontractual causes of action in a partial summary judgment. We overrule Soliz's ninth issue

because she fails to provide adequate citations to the record and cites no authority. See Tex. R. App.

P. 38.1(h). Soliz's argument on this issue contains one record reference, which is to the partial

summary judgment itself. This reference is insufficient to preface an argument that a fact question

remains on extracontractual issues. Soliz's ninth issue presents nothing for review, and is therefore

overruled.

Sua Sponte Order to Vacate

In her tenth and final issue, Soliz contends that the trial court erred by vacating, sua

sponte , its previous order of severance and abatement and rendering an oral motion for summary

judgment. In response to Soliz's third amended original petition, which added a breach of contract

claim based on the Rule 11 agreement, Trinity filed a motion to sever and abate that issue. Soliz

joined in the motion, and on December 18, 2000, the district court ordered that action to be "severed,

made the subject of a separate lawsuit, and assigned its own docket number in this Court." In the

final judgment, the court vacated its previous order of severance and abatement and dismissed the

claim with prejudice. On appeal, Soliz argues that this dismissal was outside the scope of the district

court's jurisdiction and violated her right to due process. We disagree.

Soliz argues that because the action based on the agreement had been severed and

abated, the district court had no jurisdiction to dismiss it. We note, however, that Soliz's brief fails

to provide us with a standard of review. She cites Rule 329b of the Rules of Civil Procedure for the

proposition that the severance order became final thirty days after it was signed. See Tex. R. Civ.

P. 329b. However, Rule 329b prescribes the time for filing motions for new trial and motions to

modify, correct, or reform judgments. See id. Soliz cites no rule, and we are unaware of one, that

prohibits a trial court from reconsidering its own order of severance. (11) Further, when the district

court vacated the severance order, Soliz's breach of contract claim and her underlying uninsured

motorist claim were reconsolidated. See Mid-Century Ins. Co. v. Lerner , 901 S.W.2d 749, 753 (Tex.

App.--Houston [14th Dist.] 1995, no writ). Accordingly, the district court had jurisdiction to

dismiss Soliz's breach of contract claim.

Soliz's contention that the district court's dismissal of her breach of contract action

violated her right to due process is also without merit. Having found that the district court did not

abuse its discretion in holding that the agreement did not preclude the testimony of Nalle, we cannot

say that the court acted arbitrarily and in violation of due process. Rather, the court relied on its

previous ruling, made during the hearing on Trinity's pre-trial motions:

I have already ruled in this case that there's no breach of the Rule 11 Agreement. I

heard you-all's arguments, I reviewed the agreement, there's not any breach of that.

It wasn't an agreement that Bill Nalle would never testify if there was a second trial.

It was an agreement that he wouldn't testify in the first trial. And I've already ruled

on that.

Soliz had notice of the pretrial hearing on this issue. The record further reflects that she had the

opportunity to argue the legal merits of her breach of contract action based on the Rule 11 agreement.

The court considered those arguments and ruled that there was no breach. The pretrial hearing was

therefore enough to satisfy due process. See Clanton v. Clark , 639 S.W.2d 929, 931 (Tex. 1982).

The district court was well within its discretion and hardly displayed a "blatant expression of judicial

activism" as alleged by reconsidering and reversing its own order of severance and abatement and

dismissing Soliz's breach of contract action. Soliz's tenth issue is overruled.

CONCLUSION

We overrule all of Soliz's complaints on appeal. We therefore affirm the judgment

of the district court.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: May 2, 2002

Do Not Publish

1. The interlocutory default judgment against Noralez stated that his liability was deemed

admitted; the interlocutory default judgment against Cofer purported to establish his liability "as a

matter of law."

2. In addition, the final judgment awarded Soliz $58,440.10 in pre-judgment interest, post-judgment interest as provided by law, and costs of court.

3. Legal sufficiency complaints can be preserved through the following procedures: (1) a

motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection

to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact

issue, or (5) a motion for new trial. See Aero Energy, Inc. v. Circle C Drilling Co. , 699 S.W.2d 821,

822 (Tex. 1985).

4. According to the final judgment, after Soliz and Trinity announced ready for trial, it

"appeared to the Court that default judgments had previously been rendered against Jerry Lee Cofer

and Thomas Noralez which judgments were ruled by the court to not be binding on Trinity Universal

Insurance Company."

5. While Soliz does not contest the validity of the consent to sue provision, we note that these

provisions are commonplace in uninsured motorist policies, and are in fact mandated by the Texas

Insurance Board. See Tex. Ins. Code Ann. art. 5.06 (West Supp. 2002); Texas Ins. Board, Texas

Auto Manual (1992). The validity of such provisions is well settled. See Allstate Ins. Co. v. H.M.

Hunt , 469 S.W.2d 151 (Tex. 1971); see also Criterion Ins. Co. v. Brown , 469 S.W.2d 484, 485 (Tex.

App.--Austin 1971, writ ref'd n.r.e.).

6. In support of the waiver argument, Soliz relies on two cases that are factually

distinguishable from the present controversy. In Ford v. State Farm Mutual Automobile Insurance

Company , 550 S.W.2d 663, 666-67 (Tex. 1977), the supreme court held that a consent to settlement

provision of an uninsured motorist policy is waived if the insurance carrier unconditionally denies

liability on the claim. The purpose of a consent to settlement provision is to protect the carrier's

subrogation rights against an uninsured motorist or any other person legally responsible for the

insured's injuries. Id. at 665 . The purpose of a consent to sue provision, however, is to protect an

insurer from a judgment that it could not prevent from being entered. See State Farm Mut. Auto. Ins.

Co. V. Azima , 896 S.W.2d 177, 178 (Tex. 1995). In Nationwide Mutual Insurance Company v.

Patterson , 962 S.W.2d 714, 716-17 (Tex. App.--Austin 1998, pet. denied), this Court held that an

insured was entitled to summary judgment on the issue of the insurer's liability for uninsured

motorist coverage. We reasoned that by filing an unconditional denial, the insurer had waived its

right under the policy to receive a duplicate copy of the citation served on the uninsured motorist.

Id. at 716 . That holding is inapplicable here, however, because the North Carolina policy at issue

did not contain a consent to sue provision. Id. at 717 n.5.

7. While Soliz repeatedly insists that the default judgments established liability as a matter

of law, Trinity points out that they were interlocutory and not final before trial. Specifically, Cofer

might have been able to contest his liability at trial since the default judgment did not dispose of the

damages issue. See, e.g. , Houston Health Clubs, Inc. v. First Court of Appeals , 722 S.W.2d 692,

693-94 (Tex. 1986). The default judgments, without a showing of fault, do not legally entitle Soliz

to recover under the uninsured motorist policy.

See Franco v. Allstate Ins. Co. , 505 S.W.2d 789, 792

(Tex. 1974). Further, the default judgments should not preclude Trinity from using legally viable

defenses in litigating the claims asserted against it. See Brazos Valley Cmty. v. Robinson , 900

S.W.2d 843 (Tex. App.--Corpus Christi 1995, writ denied).

8. In her fourth issue, Soliz contends that because she is legally entitled to recover against

Cofer and Noralez by way of the final judgment, Trinity must pay under the terms of the policy. This

argument fails for the obvious reason that the consent provision protects Trinity from being bound

by "[a]ny judgment for damages arising out of a suit brought without our written consent . . . ."

Soliz's damage awards against Cofer and Noralez in the final judgment are specifically based on the

default judgments that are not binding on Trinity; therefore, the damage award in the final judgment

is not relevant to Soliz's coverage under the policy.

9. In her brief, Soliz provides three citations to the record that she contends reflect her

objection to Nalle's testimony on the basis of the Rule 11 agreement. One citation is to Soliz's

motion to strike, which was denied. The second citation is to Soliz's motion in limine filed before

the first trial. That motion preserves no error and could not serve as Soliz's objection to Nalle's

testimony on the basis of the Rule 11 agreement because both parties voluntarily complied with the

agreement during the first trial. Finally, Soliz cites to her brief in support of her motion to exclude,

which again preserves nothing and which objects to Nalle solely on the basis of his qualifications

as an expert.

10. The agreement was a letter drafted by Trinity's counsel and sent to Soliz's counsel before

the first trial, stating:

With regard to your recent request to depose Bill Nalle, it is my intention to

only call Nalle to prove up the diagram that he prepared in connection with this

accident. If you will agree that the large diagram (which I used at the Motion

for Summary Judgment and which you have a copy of) accurately portrays the

scene on the date of the accident, I will not need to call him. It is my

understanding you will agree to this. If that is so, please execute this document

as per Rule 11.

11. Soliz's contention is inconsistent with the general rule that a trial court has inherent

authority to manage its own docket. See Ho v. University of Tex. , 984 S.W.2d 672, 693-94 (Tex.

App.--Amarillo 1998, pet. denied). We regard the power to abate a lawsuit to be "incidental to the

power inherent in every court to control the disposition of the causes on its docket with economy of

time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co. , 299 U.S. 248, 254

(1936); see also Clanton v. Clark , 639 S.W.2d 929, 931 (Tex. 1982). By the same principle, the

district court possessed the power to vacate the severance and abatement and rule on the merits of

the severed action after having heard Soliz's and Trinity's arguments on the merits.