stating generally that “[a] breach of an insurance contract claim is separate and distinct from bad faith, Insurance Code or DTPA causes of action”
How later courts described this case
- stating generally that “[a] breach of an insurance contract claim is separate and distinct from bad faith, Insurance Code or DTPA causes of action”
- holding that a breach of insurance contract claim is separate and distinct from bad faith, Insurance Code, or DTPA claims
- holding that it was an abuse of discretion not to sever the extra-contractual claims from the VIM claim
- holding that ―the facts and circumstances of this case extinguished Judge Millard’s discretion‖
Written by the judges who cited it.
The opinion
O’CONNOR, Justice,
dissenting.
I dissent. I do not believe relief by mandamus is appropriate in this case. United States Fire Insurance Company (the defendant) waited too late to challenge the trial court’s order. A party cannot file a petition for mandamus four weeks before trial to challenge an order of the trial court made two and a half years earlier.
Below is a chronological list of some of the procedural events in this case:
1988
2-5-88 The plaintiffs filed suit against the defendant
10-14-88 The plaintiffs filed suit against Pickersgill, without the defendant’s consent
5-18-88 The defendant filed a motion for separate trial on the uninsured motorist suit from the bad faith, DTP A, and Insurance Code claims (bad faith claims); and asked the court to abate the other causes of action
1989
1-27-89 • The trial court granted the defendant’s motion to sever the uninsured motorist claim from the bad faith claims, and the court abated the severed causes
1990
4-10-90 The plaintiffs obtained a default judgment against Pickersgill in the amount of $469,561.09
6-7-90 The plaintiffs filed a motion to lift the abatement and consolidate the uninsured motorist cause of action with the bad faith claims
8-2-90 The trial court granted the plaintiffs’ motion to consolidate and found there was no need for separate trials because the finding of damages in the Pickersgill suit barred relitigation of the issue of damages 10-2-90 The plaintiffs’ suit is dismissed for want of prosecution 12-10-90 Trial court granted the plaintiffs’ motion to reinstate
1991
3-18-91 The defendant filed a motion abate the bad faith claims until after trial of the uninsured motorist claim
4-9-91 The trial court overruled the defendant’s plea in abatement
1992
4-23-92 The trial court granted the plaintiffs’ motion for sanctions and struck all the defendant’s pleadings
5-19-92 The defendant filed a motion to vacate sanctions
7-30-92 The Fourteenth Court issued the Wilborn 1 case, granting mandamus to another trial court to grant severance in similar situation
8-5-92 The defendant filed a motion to reconsider the sanctions
8-10-92 Hearing on the defendant’s motion to reconsider the sanctions
9-9-92 The defendant filed a petition for mandamus from the sanctions
10-8-92 This Court granted the writ of mandamus, and ordered the trial court to *677 vacate its order striking the defendant’s pleadings
11-18-92 The defendant filed a motion to stay discovery
11-30-92 The defendant filed a motion to sever and abate the bad faith claims from the uninsured claims
1993
1-11-93 The trial court denied the defendant’s motion to sever and abate 1-25-93 The defendant filed a motion for leave to file a mandamus to challenge the refusal to sever
I am persuaded by the plaintiffs’ argument that the defendant’s request for relief from this Court is barred by the doctrine of laches. The defendant filed this petition for mandamus on January 25, 1993, four weeks before trial. The trial court’s order consolidating the cases, dated August 8, 1990, is now almost two and a half years old. I would hold the defendant unreasonably delayed filing this petition.
The appellate courts should not issue a writ of mandamus to one who is guilty of laches. Callahan v. Giles, 137 Tex. 571 , 155 S.W.2d 793, 795 (1941); Shield v. State, 428 S.W.2d 684, 691 (Tex.Civ.App. — Austin 1968, writ ref’d n.r.e.). Even though a writ of mandamus is a common law writ, and not a remedy in equity, it is largely controlled by equitable principles. Callahan, 155 S.W.2d at 795 . The maxim “equity aids the diligent and not those who slumber on their rights” is a fundamental principle of equity. Id. at 795-96.
In Bailey v. Baker, 696 S.W.2d 255, 258 (Tex.App. — Houston [14th Dist.] 1985, orig. proceeding), the Fourteenth Court of Appeals denied the defendant’s motion for leave to file petition for writ of mandamus, because the defendant filed the petition two weeks before trial to challenge an order that was made four months before. The court noted that there was no explanation for the defendant’s delay. The defendant has not offered any reasonable explanation for the two and a half year delay in this case. See Walker v. Packer, 827 S.W.2d 833 , 836 n. 1 (Tex.1992) (the supreme court recognized the issue of laches can bar a petition for mandamus, but did not reach the issue).
I disagree with the majority that the defendant should be excused from having filed this petition for mandamus because of the discovery disputes, the delay in rulings from the trial court, and the sanction order. 2 The issue here is not that the defendant was busy with other matters in the trial court. The issue is that the defendant did not timely file a motion for leave to file a mandamus in this Court to challenge the consolidation order.
I disagree with the majority that the defendant should be excused from having filed this petition for mandamus until the Fourteenth Court issued Wilbom. If the defendant had filed the mandamus timely, a similar decision might have been reached in this case before the Wilbom opinion. I also disagree with the majority that the defendant “diligently pursued its rights pri- or to Wilbom.” The trial court ordered the cases consolidated on August 2, 1990, and Wilbom was issued on July, 30, 1992, one and one half years later.
Even if Wilbom is a correct statement of the law and the uninsured cause of action should be tried separately from the bad faith causes of action, this defendant waited too long to ask for separate trials by petition for writ of mandamus. We should not issue mandamus for the sole reason that we believe the trial court may have committed reversible error.
. State Farm Mut. Automobile Ins. Co. v. Wil-born, 835 S.W.2d 260, 261 (Tex.App. — Houston [14th Dist.] 1992, orig. proceeding).
. In the petition for mandamus the defendant filed to challenge the sanction order, the defendant could have asked also for relief from the order consolidating the cases. I disagree with the majority that the trial court delayed its rulings. On this record, we know there were delays between some motions and rulings; we do not know who should be faulted for those delays.