Preview
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
CAUSE NO. C-2184-23-J
ELIZABETH MACDERMOTT § IN THE DISTRICT COURT
§
VS. §
§
VASQUEZ AUTO SALES, LLC, § 430th JUDICIAL DISTRICT
CARLOS SANCHEZ, ALVARO §
TOVAR, AND ALLSTATE §
VEHICLE AND PROPERTY §
INSURANCE COMPANY § HIDALGO COUNTY, TEXAS
DEFENDANT ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY’S MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
incorrectly named Allstate Vehicle and Property Insurance Company, one of the Defendants in the
above-styled and numbered cause, and files this, its Motion to Dismiss requesting dismissal of
Plaintiff’s Petition against it based on the mandatory forum selection clause contained within the
applicable insurance policy and would show the Court the following.
I.
FACTUAL BACKGROUND
Plaintiff Elizabeth MacDermott sued Defendant Allstate seeking uninsured/underinsured
motorist benefits arising out of an automobile accident that occurred on July 20, 2022, in Tangipahoa
Parish, Louisiana. Plaintiff was a passenger in a vehicle driven by Mary Bacon and owned by James
Hill. The vehicle was insured under a policy issued by Allstate First and Casualty Insurance
Company to Eva and James Hill. Elizabeth MacDermott is a resident of the State of Florida. Eva
and James Hill are residents of the State of Florida. The policy under which plaintiff MacDermott
seeks coverage was issued in the State of Florida. Based on the forum selection clause contained in
the automobile policy and settled case law, this Court lacks jurisdiction to hear this lawsuit and it
must be dismissed.
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
II.
EVIDENCE IN SUPPORT OF DISMISSAL
In support of this Motion, Allstate relies upon the pleadings on file herein as well as the
following:
1. Accident report from the State of Louisiana attached as Exhibit A;
2. Certified Copy of Allstate Fire and Casualty Insurance policy issued to Eva and James
Hill attached as Exhibit B.
III.
ARGUMENT AND AUTHORITY
A. Motion to Dismiss Standard
The proper procedural mechanism in Texas State Court for attacking an alleged improper choice
of forum is a motion to dismiss, plea to the jurisdiction, plea in abatement or similar vehicle. See In
re AIU Ins. Co., 148 S.W.3d 109, 111-21 (Tex. 2004). See also Deep Water Slender Wells, Ltd v.
Shell Int’l Expl. & Prod., Inc., 234 S.W.3d 679, 687 (Tex. App. – Houston [14th Dist.] 2008, pet.
denied) (a Motion to Dismiss is the proper procedural mechanism for enforcing a forum selection
clause). The insurance policy under which plaintiff seeks coverage was issued in the State of
Florida, to Florida residents and provides for mandatory jurisdiction in the Courts in the State of
Florida. Accordingly, Defendant Allstate Fire and Casualty Ins. Co., would show that this Court
lacks jurisdiction over this case brought in Texas based on the mandatory forum selection clause in
the applicable insurance policy.
IV.
B. Policy Language
The ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY policy which Plaintiff
seeks uninsured/underinsured motorist benefits was issued in the State of Florida to Florida residents
James Hill and Eva Hill. See Exhibit B. Plaintiff Elizabeth MacDermott is a resident of Lake
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
County, Florida. See Plaintiff’s First Amended Petition. The accident at issue occurred in Louisiana.
See Exhibit A. Hidalgo County, Texas is not the appropriate jurisdiction to hear this case.
The policy dictates where lawsuits concerning coverage and benefits under the policy must
be brought:
Where Lawsuits May Be Brought
Subject to the following two paragraphs, any and all lawsuits in any way related to this policy shall
be brought, heard and decided only in a state or federal court located in Florida. Any and all
lawsuits against persons not parties to this policy but involved in the sale, administration,
performance or alleged breach of this policy or involved in any other way with this policy, shall be
brought, heard and decided only in a state or federal court located in Florida, provided that such
persons are subject to or consent to suit in the courts specified in this paragraph.
If a covered loss to property we insure under this policy, a covered motor vehicle accident, or any
other occurrence for which coverage applies under this policy happens outside Florida, lawsuits
regarding that covered loss to property, covered motor vehicle accident or other covered occurrence
may also be brought in the appropriate court where that covered loss to property, covered motor
vehicle accident or other covered occurrence happened.
See Exhibit 2. The policy requires that plaintiff’s lawsuit against Allstate be brought, heard and
decided in Florida. Accordingly, this Court lacks jurisdiction and the lawsuit must be dismissed and
refiled in an appropriate jurisdiction in the State of Florida.
V.
C. Forum Selection Clauses are Valid and Enforceable
Texas courts follow a strong policy in favor of enforcing forum selection clauses. See e.g., In
re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007); In re Automated Collection Techs., Inc., 156
S.W.3d 557, 557 (Tex. 2004); In re AIU Ins. Co., 148 S.W.3d 109, 111-13 (Tex. 2004). The Texas
Supreme Court addressed enforcement of forum selection clauses for the first time in In re AIU Ins.
Co., adopting United States Supreme Court precedent holding such agreements prima facie valid and
enforceable. 148 S.W.3d at 112 (citing M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1, 9, (1972)
and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595,96 (1991). Enforcement of a forum
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
selection clause is “mandatory” unless the opposing party clearly shows that enforcement would be
unreasonable or unjust, or that the clause is invalid for reasons such as fraud or overreaching.” In re
AutoNation, 228 S.W.3d at 668.
Under Texas law, a contractual forum selection clause is presumed to be valid and enforceable.
In re Laibe Corp. 307 S.W.3d 314, 316-17 (Tex. 2010) Phoenix Network Techs. (Europe Ltd. v. Neon
Sys., Inc. 177 S.W.3d 605, 611 (Tex. App. – Houston [1st Dist.] 2005, no pet) (holding that a forum
selection clause is prima facie valid); Deep Water Slender Wells Ltd. V. Shell Intern. Exploration &
Production, Inc., 234 S.W.3d 679, 692 (Tex. App. – Houston [14th Dist.] 2007, pet. denied). Indeed,
enforcement of a forum selection clause is mandatory unless the party opposing enforcement clearly
shows (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud
or overreaching, (3) enforcement would contravene a strong public policy of the forum where the
suit was brought or (4) the selected forum would be seriously inconvenient for trial”. In re Laibe
Corp. 207 S.W.3d at 316 quoting In re ADM Investor Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010).
The burden of proof is heavy for the party challenging enforcement.” Id.
None of the exceptions apply to this case. Plaintiff cannot show that enforcing the forum
selection clause will be unreasonable, or unjust or seriously inconvenient. Indeed, plaintiff herself
does not even live in Texas. Litigating this matter in her home state pursuant to the policy
requirements is not only reasonable and contractually required but likely more beneficial to the
plaintiff herself. As a result, Plaintiff cannot meet the heavy burden of showing the forum selection
clause should not apply in this case.
VI.
CONCLUSION
The contract under which plaintiff seeks coverage and benefits requires that she litigate her
claims against Allstate in Florida. Allstate Fire and Casualty Insurance Company respectfully
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
requests that the Court enforce the mandatory forum selection clause in accordance with Texas
precedent and dismiss this case for want of jurisdiction.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff’s suit be
dismissed at Plaintiff’s cost, and for such other and further relief to which this Defendant may be
entitled, either at law or in equity.
Respectfully submitted,
ROERIG, OLIVEIRA & FISHER, L.L.P.
10225 North 10th Street
McAllen, Texas 78504
(956) 393-6300
(956) 386-1625 (Fax)
By: /s/ Rosemary Conrad-Sandoval
ROSEMARY CONRAD-SANDOVAL
Texas State Bar No. 04709300
rsandoval@rofllp.com
ATTORNEYS FOR DEFENDANT
Electronically Filed
1/3/2024 2:17 PM
Hidalgo County District Clerks
Reviewed By: Arlene Villarreal
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing instrument has
been forwarded via electronic service, in accordance with the Texas Rules of Civil Procedure, to all
counsel of record as follows:
Robert C. Hilliard
bobh@hilliard-law.com
Rudy Gonzales, Jr.
rudyg@hilliard-law.com
Catherine T. Hilliard
catherine@hilliard-law.com
Jessica J. Pritchett
jpritchett@hilliard-law.com
John C. Duff
jduff@hilliard-law.com
Alexander Hilliard
alex@hilliard-law.com
Hilliard Law
719 S. Shoreline Boulevard
Corpus Christi, Texas 78401
on this 3rd day of January, 2024.
/s/ Rosemary Conrad-Sandoval
ROSEMARY CONRAD-SANDOVAL
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Nikki Pugmire on behalf of Rose Sandoval
Bar No. 04709300
nikkip@rofllp.com
Envelope ID: 83041694
Filing Code Description: Motion (No Fee)
Filing Description: Defendant Allstate Fire and Casualty Insurance
Company's Motion to Dismiss
Status as of 1/3/2024 3:09 PM CST
Associated Case Party: Allstate Vechicle and Property Insurance Company
Name BarNumber Email TimestampSubmitted Status
Rosemary Conrad-Sandoval rsandoval@rofllp.com 1/3/2024 2:17:30 PM SENT
Nikki Pugmire nikkip@rofllp.com 1/3/2024 2:17:30 PM SENT
Associated Case Party: Elizabeth MacDermott
Name BarNumber Email TimestampSubmitted Status
Hilliard Law Service service@hilliard-law.com 1/3/2024 2:17:30 PM SENT
John Duff jduff@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Adam Selvidge adam@selvidgeinjurylaw.com 1/3/2024 2:17:30 PM SENT
Robert Hilliard bobh@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Rudy Gonzalez rudyg@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Catherine Hilliard catherine@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Jessica Pritchett jpritchett@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Alexander Hilliard alex@hilliard-law.com 1/3/2024 2:17:30 PM ERROR
Case Contacts
Name BarNumber Email TimestampSubmitted Status
JOHN CDUFF sdry@hilliard-law.com 1/3/2024 2:17:30 PM SENT
Preview
Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal CAUSE NO. C-2184-23-J ELIZABETH MACDERMOTT § IN THE DISTRICT COURT § VS. § § VASQUEZ AUTO SALES, LLC, § 430th JUDICIAL DISTRICT CARLOS SANCHEZ, ALVARO § TOVAR, AND ALLSTATE § VEHICLE AND PROPERTY § INSURANCE COMPANY § HIDALGO COUNTY, TEXAS DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, incorrectly named Allstate Vehicle and Property Insurance Company, one of the Defendants in the above-styled and numbered cause, and files this, its Motion to Dismiss requesting dismissal of Plaintiff’s Petition against it based on the mandatory forum selection clause contained within the applicable insurance policy and would show the Court the following. I. FACTUAL BACKGROUND Plaintiff Elizabeth MacDermott sued Defendant Allstate seeking uninsured/underinsured motorist benefits arising out of an automobile accident that occurred on July 20, 2022, in Tangipahoa Parish, Louisiana. Plaintiff was a passenger in a vehicle driven by Mary Bacon and owned by James Hill. The vehicle was insured under a policy issued by Allstate First and Casualty Insurance Company to Eva and James Hill. Elizabeth MacDermott is a resident of the State of Florida. Eva and James Hill are residents of the State of Florida. The policy under which plaintiff MacDermott seeks coverage was issued in the State of Florida. Based on the forum selection clause contained in the automobile policy and settled case law, this Court lacks jurisdiction to hear this lawsuit and it must be dismissed. Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal II. EVIDENCE IN SUPPORT OF DISMISSAL In support of this Motion, Allstate relies upon the pleadings on file herein as well as the following: 1. Accident report from the State of Louisiana attached as Exhibit A; 2. Certified Copy of Allstate Fire and Casualty Insurance policy issued to Eva and James Hill attached as Exhibit B. III. ARGUMENT AND AUTHORITY A. Motion to Dismiss Standard The proper procedural mechanism in Texas State Court for attacking an alleged improper choice of forum is a motion to dismiss, plea to the jurisdiction, plea in abatement or similar vehicle. See In re AIU Ins. Co., 148 S.W.3d 109, 111-21 (Tex. 2004). See also Deep Water Slender Wells, Ltd v. Shell Int’l Expl. & Prod., Inc., 234 S.W.3d 679, 687 (Tex. App. – Houston [14th Dist.] 2008, pet. denied) (a Motion to Dismiss is the proper procedural mechanism for enforcing a forum selection clause). The insurance policy under which plaintiff seeks coverage was issued in the State of Florida, to Florida residents and provides for mandatory jurisdiction in the Courts in the State of Florida. Accordingly, Defendant Allstate Fire and Casualty Ins. Co., would show that this Court lacks jurisdiction over this case brought in Texas based on the mandatory forum selection clause in the applicable insurance policy. IV. B. Policy Language The ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY policy which Plaintiff seeks uninsured/underinsured motorist benefits was issued in the State of Florida to Florida residents James Hill and Eva Hill. See Exhibit B. Plaintiff Elizabeth MacDermott is a resident of Lake Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal County, Florida. See Plaintiff’s First Amended Petition. The accident at issue occurred in Louisiana. See Exhibit A. Hidalgo County, Texas is not the appropriate jurisdiction to hear this case. The policy dictates where lawsuits concerning coverage and benefits under the policy must be brought: Where Lawsuits May Be Brought Subject to the following two paragraphs, any and all lawsuits in any way related to this policy shall be brought, heard and decided only in a state or federal court located in Florida. Any and all lawsuits against persons not parties to this policy but involved in the sale, administration, performance or alleged breach of this policy or involved in any other way with this policy, shall be brought, heard and decided only in a state or federal court located in Florida, provided that such persons are subject to or consent to suit in the courts specified in this paragraph. If a covered loss to property we insure under this policy, a covered motor vehicle accident, or any other occurrence for which coverage applies under this policy happens outside Florida, lawsuits regarding that covered loss to property, covered motor vehicle accident or other covered occurrence may also be brought in the appropriate court where that covered loss to property, covered motor vehicle accident or other covered occurrence happened. See Exhibit 2. The policy requires that plaintiff’s lawsuit against Allstate be brought, heard and decided in Florida. Accordingly, this Court lacks jurisdiction and the lawsuit must be dismissed and refiled in an appropriate jurisdiction in the State of Florida. V. C. Forum Selection Clauses are Valid and Enforceable Texas courts follow a strong policy in favor of enforcing forum selection clauses. See e.g., In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007); In re Automated Collection Techs., Inc., 156 S.W.3d 557, 557 (Tex. 2004); In re AIU Ins. Co., 148 S.W.3d 109, 111-13 (Tex. 2004). The Texas Supreme Court addressed enforcement of forum selection clauses for the first time in In re AIU Ins. Co., adopting United States Supreme Court precedent holding such agreements prima facie valid and enforceable. 148 S.W.3d at 112 (citing M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1, 9, (1972) and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595,96 (1991). Enforcement of a forum Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal selection clause is “mandatory” unless the opposing party clearly shows that enforcement would be unreasonable or unjust, or that the clause is invalid for reasons such as fraud or overreaching.” In re AutoNation, 228 S.W.3d at 668. Under Texas law, a contractual forum selection clause is presumed to be valid and enforceable. In re Laibe Corp. 307 S.W.3d 314, 316-17 (Tex. 2010) Phoenix Network Techs. (Europe Ltd. v. Neon Sys., Inc. 177 S.W.3d 605, 611 (Tex. App. – Houston [1st Dist.] 2005, no pet) (holding that a forum selection clause is prima facie valid); Deep Water Slender Wells Ltd. V. Shell Intern. Exploration & Production, Inc., 234 S.W.3d 679, 692 (Tex. App. – Houston [14th Dist.] 2007, pet. denied). Indeed, enforcement of a forum selection clause is mandatory unless the party opposing enforcement clearly shows (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought or (4) the selected forum would be seriously inconvenient for trial”. In re Laibe Corp. 207 S.W.3d at 316 quoting In re ADM Investor Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010). The burden of proof is heavy for the party challenging enforcement.” Id. None of the exceptions apply to this case. Plaintiff cannot show that enforcing the forum selection clause will be unreasonable, or unjust or seriously inconvenient. Indeed, plaintiff herself does not even live in Texas. Litigating this matter in her home state pursuant to the policy requirements is not only reasonable and contractually required but likely more beneficial to the plaintiff herself. As a result, Plaintiff cannot meet the heavy burden of showing the forum selection clause should not apply in this case. VI. CONCLUSION The contract under which plaintiff seeks coverage and benefits requires that she litigate her claims against Allstate in Florida. Allstate Fire and Casualty Insurance Company respectfully Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal requests that the Court enforce the mandatory forum selection clause in accordance with Texas precedent and dismiss this case for want of jurisdiction. WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff’s suit be dismissed at Plaintiff’s cost, and for such other and further relief to which this Defendant may be entitled, either at law or in equity. Respectfully submitted, ROERIG, OLIVEIRA & FISHER, L.L.P. 10225 North 10th Street McAllen, Texas 78504 (956) 393-6300 (956) 386-1625 (Fax) By: /s/ Rosemary Conrad-Sandoval ROSEMARY CONRAD-SANDOVAL Texas State Bar No. 04709300 rsandoval@rofllp.com ATTORNEYS FOR DEFENDANT Electronically Filed 1/3/2024 2:17 PM Hidalgo County District Clerks Reviewed By: Arlene Villarreal CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing instrument has been forwarded via electronic service, in accordance with the Texas Rules of Civil Procedure, to all counsel of record as follows: Robert C. Hilliard bobh@hilliard-law.com Rudy Gonzales, Jr. rudyg@hilliard-law.com Catherine T. Hilliard catherine@hilliard-law.com Jessica J. Pritchett jpritchett@hilliard-law.com John C. Duff jduff@hilliard-law.com Alexander Hilliard alex@hilliard-law.com Hilliard Law 719 S. Shoreline Boulevard Corpus Christi, Texas 78401 on this 3rd day of January, 2024. /s/ Rosemary Conrad-Sandoval ROSEMARY CONRAD-SANDOVAL Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nikki Pugmire on behalf of Rose Sandoval Bar No. 04709300 nikkip@rofllp.com Envelope ID: 83041694 Filing Code Description: Motion (No Fee) Filing Description: Defendant Allstate Fire and Casualty Insurance Company's Motion to Dismiss Status as of 1/3/2024 3:09 PM CST Associated Case Party: Allstate Vechicle and Property Insurance Company Name BarNumber Email TimestampSubmitted Status Rosemary Conrad-Sandoval rsandoval@rofllp.com 1/3/2024 2:17:30 PM SENT Nikki Pugmire nikkip@rofllp.com 1/3/2024 2:17:30 PM SENT Associated Case Party: Elizabeth MacDermott Name BarNumber Email TimestampSubmitted Status Hilliard Law Service service@hilliard-law.com 1/3/2024 2:17:30 PM SENT John Duff jduff@hilliard-law.com 1/3/2024 2:17:30 PM SENT Adam Selvidge adam@selvidgeinjurylaw.com 1/3/2024 2:17:30 PM SENT Robert Hilliard bobh@hilliard-law.com 1/3/2024 2:17:30 PM SENT Rudy Gonzalez rudyg@hilliard-law.com 1/3/2024 2:17:30 PM SENT Catherine Hilliard catherine@hilliard-law.com 1/3/2024 2:17:30 PM SENT Jessica Pritchett jpritchett@hilliard-law.com 1/3/2024 2:17:30 PM SENT Alexander Hilliard alex@hilliard-law.com 1/3/2024 2:17:30 PM ERROR Case Contacts Name BarNumber Email TimestampSubmitted Status JOHN CDUFF sdry@hilliard-law.com 1/3/2024 2:17:30 PM SENT