Motion for Change of Venue in DAVID NGUYEN vs. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY| Trellis.Law

On December 23, 2019 a Motion-Secondary was filed involving a dispute between Nguyen, David, and Progressive County Mutual Insurance Company, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
3/13/2020 3:35 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY

CAUSE NO. DC-19-20391

DAVID NGUYEN § IN THE DISTRICT COURT
Plaintiff, §

§
VS. § 134m JUDICIAL DISTRICT
§
PROGRESSIVE COUNTY MUTUAL §
INSURANCE COMPANY §
Defendant. § DALLAS COUNTY, TEXAS

SUBJECT TO MOTION TO TRANSFER VENUE, DEFENDANT’S REPLY TO
TO DEFENDANT’S MOTION TO TRANSFER VENUE
PLAINTIFF’S OPPOSITION

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY
(“Progressive” and/or “Defendant”), Defendant in the above styled and numbered cause and,

SUBJECT TO ITS MOTION TO TRANSFER VENUE, ﬁles this its Reply t0 Plaintiff’s

Opposition t0 Defendant’s Motion t0 Transfer Venue and in support thereof would respectfully

represent and show unto the Court the following:

1. Defendant Progressive timely ﬁled its Motion t0 Transfer Venue of this case to the

mandatory venue 0f Ellis County. In a suit against an insurance company regarding coverage,

Texas Insurance Code §1952.1 10 provides two mandatory venues:

(1) in the county where the policyholder or beneﬁciary instituted the suit resided at the time

of the accident; or

(2) in the county where the accident involving the uninsured 0r underinsured motorist’s

vehicle occurred.

Tex. Ins. Code §1952.1 10.

Tex. Ins. Code §1952.110 is a mandatory venue provision that supersedes Texas Civil

Practice and Remedies Code §15.032, which is expressly identiﬁed as a permissive venue statute.

SUBJECT TO MOTION TO TRANSFER VENUE, DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION
TO DEFENDANT’S MOTION TO TRANSFER VENUE PAGE 1
See In re Metro. Prop. & Cas. Ins. C0., N0. 12-18-00100-CV, 2018 Tex. App. LEXIS 3920, at

*6—*8 (TeX. App.—Tyler May 31, 2018)

2. During Plaintiff’s deposition taken last Friday 0n March 6, 2020, Plaintiff testiﬁed during

his sworn deposition and it is undisputed that Plaintiff resided in Tarrant County (not Dallas

County) at the time of the alleged accident. Further, it is undisputed that the alleged accident

occurred in Ellis County. Therefore, venue is not proper in Dallas County because it is not a

mandatory venue prescribed by TeX. Ins. Code §1952.110. See TeX. Civ. Prac. & Rem. Code

§15.001(b)(1). Also, a trial court has no discretion t0 transfer venue 0n its own motion, even t0 a

county 0f proper venue. See In re Masonite Corp, 997 S.W.2d 194, 198 (Tex. 1999).

3. “Any response 0r opposing afﬁdavits shall be ﬁled at least 30 davs prior to the hearing 0f

the motion t0 transfer.” Tex. R. CiV. P. 87(1). Here, Plaintiff ﬁled its Response with no supporting

evidence 0n March 12, 2020, only four (4) days before the hearing 0n Defendant’s Motion t0

Transfer Venue set for March 16, 2020. Because Plaintiff has failed t0 carry its burden to present

proof by afﬁdavit or evidence that venue is proper in Dallas County, “the right t0 choose proper

venue passes t0 the defendant,” who has proven that venue is proper in Defendant’s chosen

county ofEllis County. In re Berry GP, Ina, 530 S.W.3d 201, 205 (Tex. App.—Beaum0nt 2016);

see In re Missouri Paciﬁc R. C0., 998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding); see

also Tex. R. CiV. P. 87(2)(b), (3).

Therefore, Defendant requests that this action be transferred t0 District Court in Ellis

County, Texas, Where proper venue lies in this cause.

SUBJECT TO MOTION TO TRANSFER VENUE, DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION
TO DEFENDANT’S MOTION TO TRANSFER VENUE PAGE 2
Respectfully submitted,

WALTERS, BALIDO & CRAIN, L.L.P.

BY: /S/ Randall G. Walters
RANDALL G. WALTERS — 20819480
randy.wa1ters@wbclawﬁrm.com
Service of Documents:
WaltersEDOcsNotiﬁcations®wbclawﬁrm.com
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
2 14/347-8381— FAX
214/347-8380 — DIRECT
214/749-4805 — MAIN
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

This is to certify that on this the 13th day of March, 2020, a true and correct copy of the
above document has been forwarded to all known counsel of record.

/s/Randall G. Walters
RANDALL G. WALTERS

SUBJECT TO MOTION TO TRANSFER VENUE, DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION
T0 DEFENDANT’S MOTION T0 TRANSFER VENUE PAGE 3
Tex. Ins. Code 6 1952.110
This document is current through the 2019 Regular Session, 86th Legislature, and 2019 election results.

Texas Statutes & Codes Annotated by LexisNexis® > Insurance Code > Title 10 Property and
Casualty Insurance (Subts. A I) >
—
Subtitle C Automobile Insurance (Chs. 1951 2000) > —
Chapter 1952 Policy Provisions and Forms forAutomobiIe Insurance (Subchs. A H) > —
Subchapter C Uninsured or Underinsured Motorist Coverage (§§ 1952. 101 1952. 150) —

Sec. 1952.1 1 0. Venue.

Notwithstanding Section 15.032, Civil Practice and Remedies Code, an action against an insurer in relation

to the coverage provided under this subchapter, including an action to enforce that coverage, may be
brought only in the county in which:

(1)the policyholder or beneficiary instituting the action resided at the time of the accident involving the
uninsured or underinsured motor vehicle; or

(2)the accident occurred.

History

Enacted by Acts 2005, 79th Leg., ch. 727 (H.B. 2017), § g, effective April 1, 2007.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2020 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.

End of Document
Tex. Civ. Prac. & Rem. Code 6 15.001

This document is current through the 2019 Regular Session, 86th Legislature, and 2019 election results.

Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title
2 Trial, Judgment, and Appeal (Subts. A —
D) > Subtitle B Trial Matters (Chs. 15 30) > —
Chapter 15 Venue (Subchs. A —
E) > SubchapterA Definitions; General Rules (§§ 15.001 —
15.010)

Sec. 15.001. Definitions.

In this chapter:

(a)“Principa| office” means a principal office of the corporation, unincorporated association, or
partnership in this state in which the decision makers for the organization within this state conduct the
daily affairs of the organization. The mere presence of an agency or representative does not establish a
principal office.

(b)“Proper venue” means:

(1)the venue required by the mandatory provisions of Subchapter B or another statute prescribing
mandatory venue; or

(2)if Subdivision (1) does not apply, the venue provided by this subchapter or Subchapter C.

History

Enacted by Acts 1995, 74th Leg., ch. 138 (S.B. 32), § 1, effective August 28, 1995.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2020 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.

End of Document
RULE 86. MOTION TO TRANSFER VENUE
Time t0 File. An objection t0 improper venue is waived if not made by written motion
ﬁled prior to or concurrently with any other plea, pleading or motion except a special
appearance motion provided for in Rule 120a. A written consent 0f the parties t0 transfer
the case t0 another countymay be ﬁled with the clerk of the court at any time. A motion to
transfervenue because an impartial trial cannot be had in the county where the action is
pending is governed by the provisions 0f Rule 257.

How to File. The motion objecting to improper venue may be contained in a separate
instrument ﬁled concurrently with 0r prior to the ﬁling of the movant's ﬁrst responsive
pleading or the motion may be combined with other obj ections and defenses and included
in the movant's ﬁrst responsive pleading.

Requisites 0f Motion. The motion, and any amendments t0 it, shall state that the action
should be transferred to another speciﬁed county of proper venue because:

(a) The county where the action is pending is not a proper county; or

(b) Mandatory venue 0f the action in another county is prescribed by one or more
speciﬁc statutory provisions Which shall be clearly designated 0r indicated.

The motion and factual basis for the transfer 0f the action and request
shall state the legal
and request transfer of the action t0 a speciﬁc county of mandatory
transfer 0f the action
or proper venue. Veriﬁcation of the motion is not required. The motion may be
accompanied by supporting afﬁdavits as provided in Rule 87.

Response and Reply. Except as provided in paragraph 3(a) of Rule 87, a response to the
motion t0 transfer is not required. Veriﬁcationof a response is not required.

Service. A copy of any instrument ﬁled pursuant t0 Rule 86 shall be served in accordance
with Rule 2 1 a.

RULE 87. DETERMINATION 0F MOTION T0 TRANSFER

Consideration 0f Motion. The determination 0f a motion to transfer venue shall be made
promptly by the court and such determination must be made in a reasonable time prior to
commencement of the trial 0n the merits. The movant has the duty to request a setting on
the motion t0 transfer. Except 0n leave of court each party is entitled to at least 45 days
notice of a hearing 0n the motion to transfer.

Except on leave 0f court, any response or opposing afﬁdavits shall be ﬁled at least 30 days
prior to the hearing of the motion to transfer. The movant is not required to ﬁle a reply to
the response but any reply and any additional afﬁdavits supporting the motion to transfer
must, except 0n leave 0f court, be ﬁled not later than 7 days prior t0 the hearing date.

2. Burden 0f Establishing Venue.

(a) In General. A party Who seeks t0 maintain venue of the action in a particular
county in reliance upon Section 15.001 (General Rule), Sections 15.01 1-15.017
(Mandatory Venue), Sections 15.03 1-15.040 (Permissive Venue), or Sections
15.061 and 15.062 (Multiple Claims), Civil Practice and Remedies Code, has the
burden t0 make proof, as provided in paragraph 3 0f this rule, that venue is

maintainable in the county of suit. A party who seeks t0 transfer venue 0f the action
t0 another speciﬁed county under Section 15.001 (General Rule), Sections 15.01 1-
15.017 (Mandatory Venue), Sections 15.031-15.040 (Permissive Venue), 0r
Sections 15.061 and 15.062 (Multiple Claims), Civil Practice and Remedies Code,
has the burden to make proof, as provided in paragraph 3 of this rule, that venue is

maintainable in the county t0 Which transfer is sought. A party Who seeks t0 transfer
venue of the action t0 another speciﬁed county under Sections 15.01 1-15.017, Civil
Practice and Remedies Code 0n the basis that a mandatory venue provision is
applicable and controlling has the burden t0 make proof, as provided in paragraph
3 of this rule, that venue is maintainable in the county to which transfer is sought

by Virtue of one 0r more mandatory venue exceptions.

(b) Cause 0f Action. It shall not be necessary for a claimant t0 prove the merits of a
cause of action, but the existence 0f a cause of action, When pleaded properly, shall
be taken as established as alleged by the pleadings. When the defendant speciﬁcally
denies the venue allegations, the claimant is required, by prima facie proof as
provided in paragraph 3 0fthis rule, t0 support such pleading that the cause 0f action
taken as established by the pleadings, or a part of such cause of action, accrued in
the county of suit. If a defendant seeks transfer t0 a county Where the cause of action
0r a part thereof accrued, it shall be sufﬁcient for the defendant to plead that if a
cause of action exists, then the cause of action or part thereof accrued in the speciﬁc
county t0 Which transfer is sought, and such allegation shall not constitute an
admission that a cause of action in fact exists. But the defendant shall be required
to support his pleading by prima facie proof as provided in paragraph 3 of this rule,
that, if a cause of action exists, it or a part thereof accrued in the county t0 Which
transfer is sought.

(C) Other Rules. A motion to transfer venue based 0n the written consent of the
parties shall be determined in accordance with Rule 255. A motion to transfer venue
0n the basis that an impartial trial cannot be had in the courts Where the action is

pending shall be determined in accordance With Rules 258 and 259.

3. Proof.

(a) Afﬁdavits and Attachments. A11 venue facts, When properly pleaded, shall be
taken as true unless speciﬁcally denied by the adverse party. When a venue fact is
speciﬁcally denied, the party pleading the venue fact must make prima facie proof
of that venue fact; provided, however, that no party shall ever be required for venue
purposes to support prima facie proof the existence of a cause of action or part
thereof, and at the hearing the pleadings of the parties shall be taken as conclusive
on the issues of existence of a cause of action. Prima facie proof is made When the
venue facts are properly pleaded and an afﬁdavit, and any duly proved attachments
to the afﬁdavit, are ﬁled fully and speciﬁcally setting forth the facts supporting such
pleading. Afﬁdavits shall be made 0n personal knowledge, shall set forth speciﬁc
facts as would be admissible in evidence, and shall show afﬁrmatively that the
afﬁant is competent to testify.

(b) The Hearing. The court shall determine the motion to transfer venue on the basis
of the pleadings, any stipulations made by and between the parties and such
afﬁdavits and attachments as may be ﬁled by the parties in accordance with the
preceding subdivision of this paragraph 3 0r of Rule 88.

proper in the county of suit as provided in subdivision (a) of paragraph 3, then the
cause shall not be transferred but shall be retained in the county 0f suit, unless the
motion to transfer is based 0n the grounds that an impartial trial cannot be had in
the county where the action is pending as provided in Rules 257-259 0r 0n an
established ground 0f mandatory venue. A
ground 0f mandatory venue is
established When the party relying upon a mandatory exception to the general rule
makes prima facie proof as provided in subdivision (a) of paragraph 3 of this rule.

(d) In the event that the parties shall fail to make prima facie proof that the county of
suit or the speciﬁc county to which transfer is sought is a county 0f proper venue,
then the court may direct the parties to make further proof.

N0 Jury. A11 venue challenges shall be determined by the court Without the aid of a jury.

Motion for Rehearing. If venue has been sustained as against a motion t0 transfer, 0r if
an action has been transferred to a proper county in response to a motion to transfer, then
n0 further motions to transfer shall be considered regardless of Whether the movant was a
party to the prior proceedings orwas added as a party subsequent t0 the venue proceedings,
unless the motion to transfer is based on the grounds that an impartial trial cannot be had
under Rules 257-259 or on the ground of mandatory venue, provided that such claim was
not available t0 the other movant 0r movants.

Parties Who added subsequently to an action and are precluded by this Rule from having
are
a motion to transfer considered may raise the propriety of venue on appeal, provided that
the party has timely ﬁled a motion t0 transfer.

There shall be no interlocutory appeals from such determination.

Notes and Comments
No Shepard’s SignaITM
As of: March 13, 2020 7:10 PM Z

In re Metro. Prop. & Cas. Ins. Co.

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018, Opinion Delivered

NO. 12-18-00100-CV

Reporter
2018 Tex. App. LEXIS 3920 *; 2018 WL 2440461

MEMORANDUM OPINION
METROPOLITAN PROPERTY AND CASUALTY
IN RE:
INSURANCE COMPANY, ET AL, RELATORS Metropolitan Property and Casualty Insurance
Company, Metropolitan Casualty Insurance Company,
Metropolitan Direct Property and Casualty Insurance
Company, Metropolitan General Insurance Company,
Notice: PUBLISH Company of Texas, and
Metropolitan Lloyds Insurance
Economy Premier Insurance Company (collectively
"Metropolitan") seek mandamus relief from the trial
court's orders denying its motion to transfer venue and
motion to sever.1 We deny the writ.
Prior History: [*1]APPEALED FROM 4TH DISTRICT
COURT, Rusk County; Judge J. Clay Gossett.
BACKGROUND

In 2013, Patti Wan was involved in an automobile
collision with Fidel Campos's minor son, an uninsured
Counsel: For Relator: SEAN HIGGINS. motorist. [*2] Wan was covered by an insurance policy
issued by Metropolitan that included uninsured motorist
(UM) coverage. Metropolitan paid Wan‘s property
Real Party In Interest: JAMES HOLMES. damage and bodily injury claims, less her $250
deductible on the property claim. Metropolitan obtained
partial Campos and entered into a
subrogation from
repayment agreement with him. Metropolitan
Judges: Panel consisted of Worthen, C.J., Hoyle, J., reimbursed Wan's deductible in April 201 7.
and Neeley, J.
Subsequent to the collision, Wan sued Campos for

personal injuries allegedly sustained in the collision. In

October 2017, she amended her petition to include

Opinion by: JAMES T. WORTHEN

1The Respondent is J. Clay Gossett, Judge of
the Honorable
the 4th Judicial District Rusk County, Texas. The
Court,
Opinion underlying proceeding is trial court cause number 2013-395,
styled Patti Wan, Individually & On Behalf of all Others
Similarly Situated v. Fidel Campos; Metropolitan Property
& Casualty Ins. Co.; Metropolitan Casualty Ins. Co.;

ORIGINAL PROCEEDING Metropolitan Direct Property & Casualty Co.; Metropolitan
General Ins. Co.; Economy Fire & Casualty Co.; Economy
Preferred Ins. Co.; Metropolitan Lloyds Ins. Co. of Texas;
Economy Premier Assurance Co.; and Liberty County
Mutual Ins. Co.
Page 2 of 4
2018 TeX. App. LEXIS 3920, *2

allegations against Metropolitan for breach of contract, In its first issue, Metropolitan contends the trial court
conversion, breach of fiduciary duty, civil conspiracy, abused its discretion when it denied the motion to sever
and declaratoryjudgment. She alleged that Metropolitan Wan's claims against it from her claims against
failed to timely reimburse her deductible, and she Campos. However, Wan filed a motion to lift the stay
sought certification of a class. Metropolitan moved to imposed by this Court, on grounds that she no longer
transfer venue to Dallas County and sever the claims desired to contest the severance? In her response to
against it from the claims against Campos. Following a Metropolitan's petition, Wan withdrew her opposition to
hearing, the trial court denied both motions. This original the motion to sever and agreed to sever her claims
proceeding followed. against Metropolitan from her claims against Campos.

When, as in this case, a controversy no longer exists
AVAILABILITY OF MANDAMUS between the parties, the case becomes moot. Reule v.

RLZ Inv., 41 1 S.W.3d 31, 32 (Tex. App.—Houston [14th
Mandamus is an extraordinary remedy. In re Sw. Bell Dist] 2013, no pet). When a judgment "cannot have a
Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. practical effect on an existing controversy, the case is

proceeding). Mandamus will issue only to correct a clear moot and any opinion issued on the merits in the appeal
abuse of discretion for which the relator has no would constitute an impermissible advisory opinion." Id.
adequate remedy by appeal. [*3] In re Prudential Ins. An opinion is advisory when it neither constitutes
Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. specific relief to a litigant nor affects legal relations. See
proceeding). A trial court has no discretion in Houston Chronicle Publ'q Co. v. Thomas, 196
determining what the law is or applying the law to the S.W.3d 396, 401 (Tex. App.—Houston [1st Dist] 2006,
facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. no get. 2.

19—92) (orig. proceeding). A trial court abuses its

discretion by failing to analyze or apply the law correctly. Accordingly, because Wan has expressly represented to

Id. As the party seeking relief, the relator bears the this Court [*5] that she no longer contests
burden of demonstrating entitlement to mandamus Metropolitan's entitlement to a severance, we conclude
relief. Id. at 837; In re Fitzgerald, 429 S.W.3d 886, 891 that this issuenow moot. See Reule 411 S.W.3d
is at

(Tex. App.—Tvler 2014, oriq. proceedinq.). g. Thus, we need not address it.3 See TEX. R. APP. P.

47.1.
An appellate remedy is adequate when any benefits to
mandamus review are outweighed by the detriments. I_n MOTION TO TRANSFER VENUE
re Prudential, 148 S.W.3d at 136. When the benefits
outweigh the detriments, appellate courts must consider
In second issue, Metropolitan argues that the trial
its

whether the appellate remedy is adequate. Id. This
court abused its discretion in denying the motion to
transfer venue to Dallas County. Metropolitan urges that
determination is not "abstract or formulaic," but rather is
there is no basis for venue in Rusk County once the
a practical and prudential determination. Id. at 136.
claims against it are severed.
Flexibility is the principal virtue of mandamus relief and
rigid rules are "necessarily inconsistent" with that
flexibility. Id. Thus, the supreme court has held that "an
A party may appeal a venue ruling following a trial on
the merits. See Tex. Civ. Prac. & Rem. Code Ann. 5
appellateremedy is not inadequate merely because it

15.064(b1 (West 2017). venue was improper, "it shall
If
may involve more expense or delay" than a writ of
in no event be harmless error and shall be reversible
mandamus, however, the word "merely" must be
error." Id. Consequently, venue determinations
carefully considered. Id. Appeal is not an adequate
mandamus generally are not reviewable by mandamus. In_re
remedy when the denial of relief would
result in an "irreversible and public
waste of judicial
Masonite Corp., 997 S.W2d 194, 197 (Tex. 1999)

resources." Id. at 137. The decision whether there
is an
(orig. proceeding). A party seeking to enforce a
mandatory venue provision is not required to prove the
adequate [*4] remedy on appeal "depends heavily on
lack of an adequate appellate remedy, but is required
the circumstances presented." Id. The decision is not
confined to the private concerns of the parties but can
extend to the impact on the legal system. Id. 2We denied Wan‘s motion to lift the stay.

3We trust that the parties will present Respondent with an
order granting the severance and that Respondent will sign
SEVERANCE Wan's acquiescence
such an order in light of to the severance.
Page 3 of 4
2018 TeX. App. LEXIS 3920, *5

only to show that theabused its discretion. l_n
trial court brought in the county in which the accident occurred or
re Mo. Pac. R.R. 998 S.W.2d 212, 216 (Tex.
Co., the policyholder resided at the time of the accident
ﬂ). However, when the relator does not seek involving the uninsured motor vehicle. Tex. Ins. Code
enforcement of a mandatory venue statute, mandamus Ann. § 1952.110 (West 2009). In this case, it is

generally is not available absent an abuse of discretion undisputed that the accident in question occurred in

by the trial court and an inadequate appellate remedy. Rusk County and that Wan resided in Rusk County at
See id. But mandamus review of permissive venue the time of the accident. In addition, Wan's allegations
determinations is appropriate only in "extraordinary [*6] against Metropolitan concern the manner in which
circumstances." In re Team Rocket, L.P., 256 S.W3d Metropolitan handled the reimbursement of Wan's
257, 262 (Tex. 2008) (orig. proceeding). uninsured motorist property claim. Unlike Section
15.032, Section 1952.110 is a mandatory venue
Metropolitan alleges that venue in Rusk County is See In re Reynolds, 369 S.W3d
provision. 638, 648
improper because its principal place of business is in (Tex.App.—Ty/er 2012, oriq. proceedinq). As a result,
Dallas County. Therefore, according to Metropolitan, Wan's lawsuit against[*8] Metropolitan necessarily
proper venue lies in Dallas County and Wan's claims relates to her uninsured motorist coverage and venue is

against it be transferred because they were
should mandatory in Rusk County. See Tex. Ins. Code Ann. §
improperly joined with her claims against Campos and 1952.110.4 Thus, even assuming the lack of an
no venue facts support venue in Rusk County. Although adequate remedy, Metropolitan cannot show that
Metropolitan does not direct this Court to the specific Respondent abused his discretion by denying the
venue provision on which it relies, we assume motion to transfer venue. Consequently, Metropolitan
Metropolitan relies on Section 15.032 of the Texas Civil fails to meet its burden of establishing both prerequisites
Practice and Remedies Code, which pertains to to mandamus relief regarding Respondent's venue
insurance. Under that section, a suit against an determination. See Fitzqerald, 429 S. W.3d at 891.
insurance company may be brought in the county in
which the company's principal office is located, the
county in which the loss occurred, or the county in which DISPOSITION
the policyholder resided at the time the cause of action
accrued. Tex. Civ. Prac. & Rem. Code Ann. 6 15.032 Having determined that Metropolitan's first issue is moot
(West 2017). The Texas Civil Practice and Remedies and that it failed to establish an entitlement to

Code expressly identifies Section 15.032 as a mandamus relief through its second issue, we denythe
permissive venue statute, thus, Metropolitan relies upon petition for writ of mandamus. We lift our stay of
permissive venue, not mandatory venue. See id.; see proceedings ordered on April 25, 2018.
also Chiriboqa V. State Farm Mut. Auto.
Ins. Co., 96
S.W3d 673, 682 n.5 (Tex. App.—Austin 2003, no pet.) JAMES T. WORTHEN
(noting that Section 15.032 is a permissive venue
Chief Justice
scheme). As a result, absent "extraordinary
circumstances," mandamus review is not appropriate Opinion delivered May 31, 2018.
in [*7] this case. See Masonite, 997 S.W2d at 197;
Team Rocket, 256 S.W3d at 262. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley,
J.

Assuming, without deciding, that this case satisfies the
extraordinary circumstances requirement, Metropolitan (PUBLISH)
is entitled to a writ of mandamus only if it establishes
both prerequisites to mandamus review. See In_re
Fitzqerald, 429 S.W.3d at 891. And the mandamus ORIGINAL PROCEEDING
record does not demonstrate Metropolitan‘s ability to
establish an abuse of discretion.

4
Rather, the record demonstrates that Wan brought forth In its reply brief, Metropolitan argues Section 1952.110 does

sufficient venue facts to support Rusk County
venue in
not apply. We disagree for the reasons stated in the opinion.
However, even assuming Metropolitanis correct, venue is still
with respect to her lawsuit against Metropolitan. Under
proper Rusk County under the permissive venue statute
in
the Texas Insurance Code, an action against an insurer
because Wan resides in Rusk County. See TeX. Civ. Prac. &
in relation to uninsured motorist coverage must be Rem. Code Ann. 15.032.
Page 4 of 4
2018 Tex. App. LEXIS 3920, *8

ON THIS DAY came to be heard the petition for writ of

mandamus filed by Metropolitan Property and Casualty
Insurance Company, et al; who are the relators in

Cause No. 2013-395, pending on the docket of the 4th
JudicialDistrict Court of Rusk County, Texas. Said

petition for writ of mandamus having been filed herein
on April 24, 2018, and the same having [*9] been duly
considered, because it is the opinion of this Court that
writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for
writ of mandamus be, and the same is, hereby denied.

It is further ORDERED that the Relators,
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY, ET AL, pay all costs incurred
by reason of this proceeding.

James T. Worthen, Chief Justice.

End 0f Document
o
As
Cited
March 2020 7:20 PM Z
of: 13,

In re Berry GP, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

September 16, 2016, Submitted; November 3, 2016, Opinion Delivered

NO. 09-1 6-00292-CV

Reporter
530 S.W.3d 201 *; 2016 Tex. App. LEXIS 11913 **; 2016 WL 6518610
[*203] where the suit was ﬁled, t0 Howard County, the
county

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Motion-Secondary: DAVID NGUYEN vs. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY

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