Texas SC decides not to review Floyd's decision in insurance case

Steve Korris Apr. 11, 2011, 4:16pm


AUSTIN – Texas Supreme Court Justices decided not to review a decision of Jefferson County District Judge Donald Floyd in favor of Texas Mutual Insurance, at least not for now.

On April 8, they abated a petition from Leslie Holmes to reopen a suit Floyd rejected under a statute of limitations.

They directed the clerk to remove the petition from the active docket until further order.

Holmes filed suit in 2003, in a dispute over a worker's compensation claim.

The district court clerk issued a citation, but the Post Office brought it back with the letters IA across it.

Floyd set the suit on a "try or dismiss" docket in 2006, and dismissed it when Holmes didn't announce ready for trial.

Holmes moved to reinstate, arguing he and counsel weren't aware of the docket setting.

Holmes stated he believed Texas Mutual was served in 2003, and he didn't know why Texas Mutual didn't answer.

Floyd reinstated the suit, but again it languished.

In 2009, Holmes amended his petition and served it on Texas Mutual.

The insurer moved for summary judgment, arguing that a statute of limitations barred the suit because Holmes didn't exercise due diligence in serving it.

Holmes opposed the motion, claiming he needed to investigate the meaning of IA.

Texas Mutual claimed it meant insufficient address.

Floyd granted summary judgment, and Holmes appealed.

The Supreme Court transferred the appeal from the Ninth District in Beaumont to the Eighth District in El Paso, where Texas Mutual prevailed in February.

"An unexplained delay in effecting service constitutes a lack of diligence as a matter of law," Justice Guadalupe Rivera wrote.

"We believe that an ordinarily prudent person would check whether the original citation was actually served when the defendant failed to file an answer within a reasonable amount of time," she wrote.

She found no evidence Texas Mutual was ever aware that Holmes sued.

"Rather, their first notice of the suit was five and a half years later when Holmes filed his first amended petition," she wrote.

She wrote that although a party may ordinarily rely on a clerk to perform a duty, ultimate responsibility falls to a plaintiff.

"When the plaintiff learns, or by the exercise of diligence should have learned, that the citation was not issued or served on the defendant, it is still incumbent upon him to ensure that the job gets done," she wrote.

She wrote that "the meaning of IA is irrelevant to whether Holmes exercised due diligence in serving TMCI after the citation was returned."

Chief Justice David Chew and Justice Ann McClure agreed.

Ken Slavin, Jason Hungerford, Shannon Pounds, Sean White, and Mary Barrow Nichols represented Texas Mutual.

Peter F. Doyle Jr. represented Holmes.

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