Opinion
No. 04-07-00878-CV
Delivered and Filed: April 30, 2008.
This proceeding arises out of Cause No. 06-04-11250-ZCV, styled Apolonio Moncada and Maria Moncada v. Travelers Lloyds of Texas Insurance Company, et al., pending in the 293rd Judicial District Court, Zavala County, Texas, the Honorable Cynthia L. Muniz presiding.
Petition for Writ of Mandamus Denied.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
In this mandamus proceeding, relators Travelers Lloyds of Texas Insurance Company, Travelers Property Casualty, the Travelers Lloyds Insurance Company, the Travelers Indemnity Company of America, and Kevin Shelton, claim that the trial court abused its discretion by failing to sever contractual claims and extra-contractual bad faith claims brought against them by homeowners. Almost a year after the homeowners' suit was filed, relators made an offer to settle all claims for $2,000.00. The homeowners rejected the offer. Relators then moved for severance because they were "[c]oncerned about the possibility" that their settlement offer "could be used against [them] at the time of trial." Relators also requested an abatement of the extra-contractual claims. The trial court denied the motion, but ordered bifurcation of any admissible evidence involving the extra-contractual claims that would be prejudicial to the contract claim.
According to the offer, $1,000.00 would be paid to the homeowners, and $1,000.00 would be paid to their attorney.
To support their claim for mandamus relief, relators cite In re Maryland Casualty Ins. Co., 2006 WL 2135052 (Tex.App.-San Antonio 2006, orig. proceeding). In In re Maryland, we concluded that the trial court abused its discretion in denying a motion to sever contractual and extra-contractual claims when a settlement offer had been made. Id. at *2. We further concluded that the insurer had no adequate appellate remedy because: (1) the settlement offer, which normally would not be admitted in defending the contractual claims, would need to be admitted in defending the extra-contractual claims, and (2) the court and the parties would be put to the expense and effort of preparing and trying extra-contractual claims that may be disposed of in the resolution of the breach of contract claim. Id. at *1. As a result, we conditionally granted mandamus relief. Id. at *2.
The present case is distinguishable from In re Maryland. In that case, the trial judge did not attempt to fashion any remedy to the apparent prejudice that would be engendered by proof of a settlement offer during the trial of the contractual claims. Absent such action, we held it was an abuse of discretion to deny the severance. Here, recognizing the potential for prejudice, the trial court ordered the bifurcation of the evidence. The relators do not argue that such action will not ameliorate the prejudice; rather, relying on In re Maryland, they argue severance is the only option available to the trial judge. We disagree. See Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (recognizing circumstances when limiting instructions would ameliorate prejudice); In re Allstate Texas Lloyds, 202 S.W.3d 895, 898 (Tex.App.-Corpus Christi 2006, orig. proceeding [mand. denied]) (denial of severance motion was not an abuse of discretion when bifurcation was ordered to alleviate prejudice). The petition for a writ of mandamus is therefore denied. See Tex. R. App. P. 52.8(a).