Motion to Sever UM

CAUSE NO. XXXXXXXXXXX

 

 

XXXXXXXXXXX                                            §                               IN THE COUNTY COURT

                                                                             §

VS.                                                                        §                                                      AT LAW NO

                                                                             §

XXXXXXXXXXX and                                      §

XXXXXXXXXXX                                            §

INSURANCE COMPANY                                 §                               SMITH COUNTY, TEXAS

 

 

 

PLAINTIFF, XXXXXXXXXXX , RESPONSE TO

DEFENDANT, XXXXXXXXXXX ,

MOTION TO SEVER

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

            COMES NOW, Plaintiff, XXXXXXXXXXX, and submits this his Response to Defendant, XXXXXXXXXXX, Motion to Sever, and pursuant thereto would respectfully show the Court as follows:

I.

            This cause arises out of an automobile accident which occurred on or about XXXXXXXXXXX, when Defendant, XXXXXXXXXXX, while in a drunken stupor, slammed his automobile into the rear of the vehicle being operated by Plaintiff, XXXXXXXXXXX, causing Plaintiff serious and grievous injuries.  Plaintiff filed suit against the Defendant tortfeasor, XXXXXXXXXXX, as well as against Plaintiff’s underinsured motorist carrier, XXXXXXXXXXX, for underinsured motorist benefits.  Defendant XXXXXXXXXXX now seeks to sever this lawsuit into two virtually identical lawsuits. The severance of this action into two separate causes would violate numerous rules of justice, convenience, and judicial economy.


 

II.

            Texas Rule of Civil Procedure 51(b) provides that:


“Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action;…”


            The bringing of the tort claim and underinsured motorist claim in the same cause of action falls squarely within the authorization of Rule 51(b).


III.

 

“A trial court properly exercises its discretion in severing claims when:

1)         The controversy involves more than one cause of action;

2)         The severed claim is one that could be asserted independently in a separate lawsuit; and

3)         The severed actions are NOT so interwoven with the other claims that they involve the same facts and issues.”


            Guaranty Federal Savings v. Horseshoe Operating Company, 793 S.W.2d 652, 658 (Tex. 1990)(emphasis added).  The facts and issues are so similar and interwoven in the instant cause as to prohibit severance.


“The controlling reasons for severance are to do justice, avoid prejudice, and further convenience.” Id.  The severance of the instant cause into two causes of actions would work a substantial injustice, create a risk of multiple and inconsistent outcomes, and visit a gross inconvenience upon the innocent victim, XXXXXXXXXXX, in this matter.  If this cause were severed into two separate causes of action it would force Mr XXXXXXXXXXX to litigate this single incident in two separate lawsuits in two separate cities.

            In the case of In Re: Edward Liu, M.D., 290 S.W.3d 515 (Tex.App.—Texarkana 2009, no writ), a passenger injured in an automobile accident brought an action asserting negligence claims against an intoxicated driver, breach of contract claims against two insurers, and a medical malpractice claim against the physician who treated her broken arm.  Dr. Liu sought to sever the medical malpractice claim.  The trial court refused to sever the medical malpractice claim and the Texarkana Court of Appeals held that the trial court did not abuse its discretion by denying the motion to sever the malpractice claim. Id.

            WHEREFORE, PREMISES CONSIDERED, Plaintiff, XXXXXXXXXXX, respectfully prays that Defendant, XXXXXXXXXXX, Motion to Sever be in all things DENIED.

                                                                        RESPECTFULLY SUBMITTED,

 

 

                                                                        ________________________________________

                                                                        Earl Drott

                                                                        State Bar Number 06134750

 

                                                                        Earl Drott Law

                                                                        Bank of America Southeast Center

                                                                        3301 Golden Road, Suite 411

                                                                        Tyler, Texas  75701

                                                                        Phone (903) 531-9300

                                                                        (Fax 903) 531-0221

                                                                        edrott@earldrottlaw.com

                                                                        Attorney for Plaintiff

 

 

CERTIFICATE OF SERVICE

            I hereby certify that a true and correct copy of the foregoing has been forwarded to XXXXXXXXXXX by regular mail, on this the ____ day of ___________________, 20____.

 

 

                                                                        ________________________________________

                                                                        Earl Drott