Opinion
No. 05-03-01493-CV.
Opinion issued October 30, 2003.
Original Proceeding from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 4-240-02
Writ of Mandamus Granted
Before Justices MORRIS, FITZGERALD, and LANG.
MEMORANDUM OPINION
Real parties in interest sued Allstate for underinsured motorist benefits due to an automobile accident and also alleged a breach of contract claim along with extra-contractual claims for bad faith under the insurance code and deceptive trade practices act. Allstate filed a motion to sever the claims for underinsured motorist benefits from the breach of contract and extra-contractual claims. The trial court denied the motion to abate and sever and a motion to reconsider. Allstate then filed this original proceeding asserting the trial court clearly abused its discretion in denying the motion and that it does not have an adequate remedy at law.
Allstate's petition to this Court and brief filed below assert it made an offer of settlement on the underinsured motorist claim. Real parties in interest do not challenge this factual assertion, so we take its as true. Tex.R.App.P. 38.1(f). We conclude the trial judge abused his discretion in not severing and abating the claims. See Liberty Nat'l Fire Ins. Co., 927 S.W.2d 627, 629 (Tex. 1996) (orig. proceeding); Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (orig. proceeding) (op.on reh'g.). Accordingly, relator's petition for writ of mandamus is conditionally GRANTED. The trial court is ORDERED to VACATE its orders of December 5, 2002 and September 18, 2003 denying Allstate's motion to sever and abate and to enter an order granting Allstate's motion to sever and abate. The Court ORDERS the trial court to file a certified copy of its order in compliance with this order no later then thirty days after the date of this opinion and judgment. Should the trial court fail to comply, the writ will issue.