In Re Certain Underwriters at Lloyd's, London Subscribing Severally to Policy No. THM000938-01 v. the State of Texas

NUMBER 13-25-00088-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE CERTAIN UNDERWRITERS AT LLOYD’S, LONDON
SUBSCRIBING SEVERALLY TO POLICY NO. THM000938-01

ON PETITION FOR WRIT OF MANDAMUS

OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Opinion by Chief Justice Tijerina1

By petition for writ of mandamus, relators Certain Underwriters at Lloyd’s, London

Subscribing Severally to Policy No. THM000938-01 (Underwriters) contend that the trial

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”), id. R.
47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”), id. R. 47.4 (explaining the
differences between opinions and memorandum opinions).
court2 abused its discretion by striking their plea in intervention. In a previous original

proceeding, we determined that the trial court abused its discretion by striking the plea in

intervention because Underwriters were not provided with notice of a hearing on their plea

or an opportunity to be heard. See In re Certain Underwriters at Lloyd’s, London, No. 13-

24-00428-CV, 2024 WL 5087394, at *1 (Tex. App.—Corpus Christi–Edinburg Dec. 11,

2024, orig. proceeding) (mem. op.). The trial court subsequently provided Underwriters

with notice and an opportunity to be heard and thereafter struck their plea in intervention.

We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

Real parties in interest Jesus and Cynthia Santoyo are the named insureds on a

property insurance policy issued by Underwriters. Asserting that their home sustained

extensive damage from a hailstorm, the Santoyos submitted a property damage claim to

Underwriters. The parties were unable to resolve the claim. On March 19, 2024, the

Santoyos’ counsel sent a pre-suit demand letter to Underwriters. On March 27, 2024,

Underwriters “declare[d] an impasse in the amount of loss [in] dispute” and demanded

appraisal pursuant to the terms of their insurance policy. On May 8, 2024, Underwriters

notified the Santoyos that Underwriters elected to assume whatever liability that their

agents might have for any acts and omissions related to the Santoyos’ claim under

§ 542A.006 of the Texas Insurance Code. See TEX. INS. CODE ANN. § 542A.006

(governing an insurer’s election of legal responsibility in an action against its agents).

Shortly thereafter, the Santoyos filed suit against American Claims Management, Inc.

2 This lawsuit arises from trial court cause number CL-24-1987-G in the County Court at Law No.

7 of Hidalgo County, Texas, and the respondent is the Honorable Sergio Valdez. See id. R. 52.2.

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(ACM) and Judah Hale Hays alleging that they failed to properly investigate and adjust

the Santoyos’ property damage claim. The Santoyos asserted causes of action against

them for negligence, violations of the Texas Insurance Code, and violations of the Texas

Deceptive Trade Practices Act. The Santoyos did not name Underwriters as a defendant

in their lawsuit.

On July 8, 2024, Underwriters filed a “Plea in Intervention and Petition to Compel

Appraisal.” Underwriters explained that they issued the insurance policy at issue and they

engaged ACM to assist in the adjustment of the Santoyos’ claim as a third-party

administrator, and that ACM then assigned Hays to serve as an independent field adjuster

for the claim. Underwriters asserted that there was “minimal interior water damage” to the

Santoyos’ property and the covered losses fell below their deductible; however, the

Santoyos disagreed with this assessment of their damages. Underwriters argued that

they were entitled to appraisal under the policy, and that they had elected to accept all

potential liability of their agents, including ACM and Hays, under § 542A.006. See id.

Underwriters thus argued that they should be allowed to intervene in the lawsuit because

they possessed a justiciable interest in the suit and further argued that the trial court

should compel the Santoyos to participate in the appraisal process. On July 15, 2024,

Underwriters filed a separate “Motion to Compel Appraisal and to Abate.” They asserted,

inter alia, that the insurance policy required appraisal as a condition precedent to

coverage and to any legal action.

On August 1, 2024, the Santoyos filed their first amended petition against ACM

and Hays. Their amended petition generally reiterates the claims made in their original

petition but clarifies that the Santoyos “are seeking only tort claims” and “there are no

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breach of contract claims herein alleged or sought.” On August 2, 2024, the Santoyos

further filed a “Motion to Strike [Underwriters’] Plea in Intervention, Response to

[Underwriters’ Motion] to Compel Appraisal[,] and Response to Motion to Compel

Appraisal and Abate.”

On August 5, 2024, the trial court held a hearing on Underwriters’ motion to compel

appraisal and abate. That same day, by separate orders, the trial court struck

Underwriters’ plea in intervention and denied their motion to compel appraisal and

abatement. Underwriters sought mandamus relief on grounds that they were deprived

with notice and an opportunity to be heard, and, as stated previously, we granted relief,

in part. See In re Certain Underwriters at Lloyd’s, London, 2024 WL 5087394, at *1.

Subsequently, in accordance with our instructions, the trial court held a hearing on

the Santoyos’ motion to strike Underwriters’ plea in intervention. On January 22, 2025,

the trial court signed an order denying Underwriters’ plea in intervention. On January 24,

2025, the Santoyos filed a fourth amended petition against ACM and Hays, again alleging

that that they failed to properly investigate and adjust their property damage claim and

reiterating their allegations that they are not seeking any benefits under their insurance

policy.

This original proceeding ensued. Underwriters filed a petition for writ of mandamus

asserting by two issues, which we construe as one, that the trial court abused its

discretion by striking their plea in intervention. In conjunction with their petition for writ of

mandamus, Underwriters also filed a motion to stay the trial court proceedings. The Court

granted Underwriters’ motion to stay, stayed the trial court proceedings, and requested

the real parties in interest to file a response to Underwriters’ petition for writ of mandamus.

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ACM and Hays filed a response joining in Underwriters’ request for mandamus relief, and

the Santoyos filed a response in opposition.

II. STANDARD OF REVIEW

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial

court abused its discretion; and (2) the relator lacks an adequate remedy on appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two

requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding) (per curiam); Walker, 827 S.W.2d at 840.

III. INTERVENTION

“Any party may intervene by filing a pleading, subject to being stricken out by the

court for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60; see Farmers

Grp., Inc. v. Geter, 620 S.W.3d 702, 713 (Tex. 2021). Rule 60 “authorizes a party with a

justiciable interest in a pending suit to intervene in the suit as a matter of right.” Nghiem

v. Sajib, 567 S.W.3d 718, 721 (Tex. 2019) (quoting In re Union Carbide Corp., 273 S.W.3d

152, 154 (Tex. 2008) (orig. proceeding) (per curiam)). Any party opposing the intervention

has the burden to challenge it by filing a motion to strike. Id.; see Mass. Bay Ins. v. Adkins,

615 S.W.3d 580, 602 (Tex. App.—Houston [1st Dist.] 2020, no pet.). If a motion to strike

is filed, the intervenor then has the burden to show that it possesses a justiciable interest

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in the suit. Nghiem, 567 S.W.3d at 721; In re Union Carbide Corp., 273 S.W.3d at 155;

Mass. Bay Ins., 615 S.W.3d at 602.

An intervenor possesses a justiciable interest when it “could have brought the

same action, or any part thereof, in [its] own name, or, if the action had been brought

against [it], [it] would be able to defeat recovery, or some part thereof.” Guar. Fed. Sav.

Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (op. on reh’g); see

Smith v. City of Garland, 523 S.W.3d 234, 241 (Tex. App.—Dallas 2017, no pet.). A

justiciable interest is analogous to an interest that is “essential for a party to maintain or

defend an action.” Williamson v. Howard, 554 S.W.3d 59, 66 (Tex. App.—El Paso 2018,

no pet.) (quoting McCord v. Watts, 777 S.W.2d 809, 811 (Tex. App.—Austin 1989, no

writ)); see J. Fuentes Colleyville, L.P. v. A.S., 501 S.W.3d 239, 243 (Tex. App.—Fort

Worth 2016, no pet.). In broad terms, a party may intervene when its interests will be

affected by the litigation. J. Fuentes Colleyville, L.P., 501 S.W.3d at 243; Law Offices of

Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no

pet.). The intervenor’s interest may be legal or equitable. Guar. Fed. Sav. Bank, 793

S.W.2d at 657; Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982); Williamson, 554

S.W.3d at 66. However, the interest may not be merely contingent or remote. Williamson,

554 S.W.3d at 56; Smith, 523 S.W.3d at 241; Law Offices of Windle Turley, P.C., 109

S.W.3d at 70.

We review the trial court’s ruling on a motion to strike an intervention under an

abuse of discretion standard. Farmers Grp., Inc., 620 S.W.3d at 713; Williamson, 554

S.W.3d at 66; Ins. Co. of State of Pa. v. Neese, 407 S.W.3d 850, 853 (Tex. App.—Dallas

2013, no pet.). In this regard, the trial court’s discretion is “broad” but not unlimited. Guar.

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Fed. Sav. Bank, 793 S.W.2d at 657; see Williamson, 554 S.W.3d at 66. The trial court

must grant a motion to strike if the intervenor fails to establish a justiciable interest in the

lawsuit. In re Union Carbide, 273 S.W.3d at 156; see Williamson, 554 S.W.3d at 66. On

the other hand, it is an abuse of discretion to strike a plea in intervention when: (1) the

intervenor could have brought the same action or a part thereof in its own name or the

intervenor would be able to defeat recovery or a part thereof; (2) allowing the intervention

“will not complicate the case by an excessive multiplication of the issues”; and (3) “the

intervention is almost essential to effectively protect the intervenor’s interest.” Guar. Fed.

Sav. Bank, 793 S.W.2d at 657; see Williamson, 554 S.W.3d at 66; J. Fuentes Colleyville,

L.P., 501 S.W.3d at 243.

Although most interventions involve parties who intervene as plaintiffs, “intervenors

can occupy the position of a defendant where their claims and prayer align them with the

defendant and pit them directly against the plaintiff, even if no parties assert claims

against them.” In re Ford Motor Co., 442 S.W.3d 265, 275 (Tex. 2014) (orig. proceeding).

When “a judgment for the plaintiff may lead to an action against the intervenor or

otherwise seriously prejudice the intervenor, the intervention is necessary to assure a

proper defense against the claim.” Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex.

App.—Corpus Christi–Edinburg 2006, pet. denied); see Evan’s World Travel, Inc. v.

Adams, 978 S.W.2d 225, 234 (Tex. App.—Texarkana 1998, no pet.); see also De La Rosa

v. Avery, No. 12-23-00112-CV, 2023 WL 7178022, at *3 (Tex. App.—Tyler Oct. 31, 2023,

no pet.) (mem. op.). This is true even when the intervenor has not or could not be sued

directly. Jenkins, 187 S.W.3d at 797; Evan’s World Travel, Inc., 978 S.W.2d at 234; see

also De La Rosa, 2023 WL 7178022, at *3.

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IV. DISCUSSION

As stated previously, Underwriters contend that the trial court abused its discretion

by striking their plea in intervention because they have a justiciable interest in the

underlying lawsuit. Underwriters assert that: (1) their rights and duties will be affected by

a judgment against ACM and Hays because Underwriters have accepted any liability that

they may have pursuant to Texas Insurance Code § 542A.006; (2) the Santoyos are

attempting to adjudicate coverage and liability disputes under Underwriters’ insurance

policy yet excluding Underwriters from participating in the lawsuit; (3) Underwriters are

the only ones that can enforce the terms and conditions of the policy and their liability is

affected by any judgment in the underlying case; and (4) Underwriters have invoked their

right under the policy to determine coverage and liability issues through appraisal and the

appraisal process may render some of the Santoyos’ claims moot.

In contrast, the Santoyos assert that they have waived all claims for policy benefits;

thus, Underwriters lack a justiciable interest in the lawsuit because they are free from

liability. The Santoyos argue that ACM and Hays as adjusters are individually liable to the

Santoyos independent of any claims on their insurance policy. The Santoyos thus allege

that Underwriters’ intervention is unnecessary and will only complicate the underlying

lawsuit.

A. Texas Insurance Code § 542A.006

Underwriters assert, in part, that their interests will be affected by a judgment

against ACM and Hays because they accepted any liability that ACM and Hays might

have to the Santoyos under Texas Insurance Code § 542A.006. The Santoyos argue that

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this section does not apply to the facts of this case and does not provide Underwriters

with a justiciable interest herein.

Texas Insurance Code Chapter 542A applies to actions, like the one at hand,

concerning first-party insurance claims arising from damage caused by hail and wind.

See TEX. INS. CODE ANN. §§ 542A.001(2),.002(a); Advanced Indicator & Mfg., Inc. v.

Acadia Ins., 50 F.4th 469, 474 (5th Cir. 2022) (per curiam). Subject to certain limitations

that are not applicable here, this section provides that “an insurer that is a party to the

action may elect to accept whatever liability an agent might have to the claimant for the

agent’s acts or omissions related to the claim by providing written notice to the claimant.”

TEX. INS. CODE ANN. § 542A.006(a); see id. § 542A.006(h) (providing an exception for

insurers who are in receivership). The insurer may not revoke this election, and a court

may not nullify it. Id. § 542A.006(f).

If the insurer makes such an election before the claimant files the action, “no cause

of action exists against the agent related to the claimant’s claim, and, if the claimant files

an action against the agent, the court shall dismiss that action with prejudice.” Id.

§ 542A.006(b). If the insurer makes the election after the claimant files suit, “the court

shall dismiss the action against the agent with prejudice.” Id. § 542A.006(c). An insurer’s

election “is ineffective to obtain the dismissal of an action against an agent if the insurer’s

election is conditioned in a way that will result in the insurer avoiding liability for any claim-

related damage caused to the claimant by the agent’s acts or omission.” Id.

§ 542A.006(e).

In any event, if the insurer makes the election and

the agent is not a party to the action, evidence of the agent’s acts or
omissions may be offered at trial and, if supported by sufficient evidence,
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the trier of fact may be asked to resolve fact issues as if the agent were a
defendant, and a judgment against the insurer must include any liability that
would have been assessed against the agent.

Id. § 542A.006(g). “In an action tried by a jury, an insurer’s election . . . may not be made

known to the jury.” Id. § 542A.006(i). While the case law construing this section is not

voluminous, we agree with the Fifth Circuit which has held that an insurer’s § 542A.006

election “eviscerates any claim against an agent.” Advanced Indicator & Mfg., Inc., 50

F.4th at 474; see Yarco Trading Co. v. United Fire & Cas. Co., 397 F. Supp. 3d 939, 949

(S.D. Tex. 2019) (stating that “the Texas Legislature crafted § 542A.006(c) as a full-stop

defense to claims filed against insurance adjusters in state court”).

Here, the record reflects that Underwriters notified the Santoyos that they elected

to accept the liability of ACM and Hays on May 8, 2024, at 1:09 p.m., and the Santoyos

filed their original petition against ACM and Hays at 1:35 p.m. that same day. The

Santoyos assert that under § 542A.006’s “plain and common meaning,” “both the

insurer and the adjuster must be named parties to the action” for this section to apply,

and thus § 542A.006 does not apply to this case because the Underwriters are not named

parties to the suit. The Santoyos argue that the language of subsection (a), referring to

“an insurer that is a party to the action” mandates that we adopt their construction of the

statute. See TEX. INS. CODE ANN. § 542A.006(a). The Santoyos further assert that any

other reading leads to the absurd result of extinguishing the right to seek relief against an

adjuster, which is a recognized cause of action under Texas law.

We disagree with the Santoyos’ assertions. While subsection (a) of § 542A.006

states that “an insurer that is a party to the action may elect to accept” its agents’ liability,

subsection (b) explicitly allows an insurer to make an election “before a claimant files an

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action,” and, accordingly, § 542A.006 does not apply only to insurers who are named

defendants in a lawsuit. See id. § 542A.006(b). Moreover, contrary to the Santoyos’

contention that this interpretation extinguishes existing causes of action against insurance

agents,3 the election procedure under § 542A.006 instead shifts liability for those causes

of action to the insurer. See generally id. § 542A.006. We review the parties’ claims

regarding the propriety of Underwriters’ intervention accordingly.

B. Analysis

We examine the factual allegations in the parties’ pleadings to determine whether

Underwriters have a justiciable interest in the lawsuit. Williamson, 554 S.W.3d at 66–67;

Smith, 523 S.W.3d at 241; J. Fuentes Colleyville, L.P., 501 S.W.3d at 243. In their fourth

amended petition, the Santoyos allege that ACM and Hays failed to reasonably

investigate their claim, misrepresented material facts regarding insurance coverage and

the scope of loss, committed various violations of the Texas Insurance Code, and violated

the Texas Deceptive Trade Practices Act. The Santoyos alleged, in part, that their “claim

was improperly adjusted, inadequately paid, and wrongfully denied.” The Santoyos

clarified that:

[They] are seeking only tort claims against [Hays and ACM] as no breach of
contract claims are alleged or sought herein, nor are [the Santoyos] seeking
any form of “policy benefits” or asserting entitlement to same in any manner
or way, and affirmative[ly] state herein that any reference to policy
benefits . . . is merely for the purpose of comparison to [Hays’s and ACM’s]
bad faith adjustment of the loss and fraudulent conduct in [the] scope and
adjustment of [the Santoyos’] storm related damage.

3 Adjusters engaged in the business of insurance may be held individually liable. See Liberty Mut.

Ins. v. Garrison Contractors, Inc., 966 S.W.2d 482, 486 (Tex. 1998); Lon Smith & Assocs., Inc. v. Key, 527
S.W.3d 604, 622 (Tex. App.—Fort Worth 2017, pet. denied); see also Gasch v. Hartford Accident & Indem.
Co., 491 F.3d 278, 282 (5th Cir. 2007); Yarco Trading Co., 397 F. Supp. 3d at 944–45.

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The Santoyos thus asserted that the damages that they sought against ACM and Hays

were “independent of any claim for policy benefits.”

Underwriters’ plea in intervention alleged that they adjusted the loss at issue based

on the information provided to them, and they ultimately determined that the Santoyos

sustained only minimal water damage to their property and their estimated losses fell

below their deductible. Underwriters alleged that they had a justiciable interest in the

litigation because: (1) the Santoyos sought to adjudicate liability under their insurance

policy; (2) Underwriters have a contractual right to appraisal, which ACM and Hays cannot

enforce, which is a condition precedent to recovery under the insurance policy;

(3) Underwriters have elected to accept all responsibility that ACM and Hays might have

related to the Santoyos’ claims under § 542A.006, and thus have an interest in defending

the claims against them; and (4) a valid appraisal, once completed, contractually

determines the amount of loss and forecloses certain causes of action, so if the Santoyos

had brought suit against Underwriters, Underwriters would have been able to defeat their

recovery in part or in its entirety through the appraisal process.

Examining the pleadings in the context of the relevant law, we note that a judgment

in favor of the Santoyos would likely lead to an action against Underwriters because

Underwriters have elected to accept whatever liability ACM and Hays have to the

Santoyos. See generally TEX. INS. CODE ANN. § 542A.006(a), (b). Further, had the

Santoyos filed suit against Underwriters directly, Underwriters would have been able to

invoke appraisal, a defense that is unavailable to ACM and Hays and which could

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potentially defeat the Santoyos’ recovery or a part thereof.4 The Santoyos’ claims,

although carefully crafted to avoid any causes of action pertaining to breach of the

insurance policy itself, are factually premised on Underwriters’ insurance policy and

Underwriters’ rejection of the Santoyos’ claim. Based on the foregoing, we conclude that

Underwriters possess a justiciable interest in the litigation. See Guar. Fed. Sav. Bank,

793 S.W.2d at 657; Williamson, 554 S.W.3d at 66; J. Fuentes Colleyville, L.P., 501 S.W.3d

at 243. Jenkins, 187 S.W.3d at 797; Evan’s World Travel, Inc., 978 S.W.2d at 234. And,

we conclude that the intervention is essential to effectively protect Underwriters’ interests.

See Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Williamson, 554 S.W.3d at 66; J. Fuentes

Colleyville, L.P., 501 S.W.3d at 243.

Finally, we examine whether allowing Underwriters to intervene would complicate

the case by causing an excessive multiplication of the issues. See Guar. Fed. Sav. Bank,

793 S.W.2d at 657. In this regard, the Santoyos assert that Underwriters’ attempts to

intervene and compel appraisal “demonstrates that Underwriters has already complicated

and multiplied the issues before the trial court.” However, the Santoyos’ causes of action,

the defenses thereto, and the relevant facts, all surround the alleged damage to the

Santoyos’ property, the cause of that damage, ACM and Hays’s evaluation of the damage,

and Underwriters’ denial of the claim. We cannot consider ACM and Hays’s liability in a

vacuum, and it is, in essence, inextricably interwoven with Underwriters’ insurance policy

and its denial of the Santoyos’ claims. Moreover, because the Santoyos’ suit complains

solely of actions taken by ACM and Hays for which Underwriters has assumed liability,

4 In discussing this issue, we express no opinion in this original proceeding on the merits of
Underwriters’ motion to compel appraisal, but instead focus on the fact that appraisal is foreclosed in its
entirety in the absence of Underwriters’ presence in the lawsuit.

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Underwriters’ intervention will not expand the scope of facts and issues relevant to the

case. Accordingly, we conclude that allowing the intervention will not excessively

complicate the case. See Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Williamson, 554

S.W.3d at 66; J. Fuentes Colleyville, L.P., 501 S.W.3d at 243.

C. Remedy

A trial court’s ruling on a plea in intervention is not subject to appeal; thus,

mandamus relief may be appropriate when the trial court erroneously rules on a motion

to strike. See, e.g., In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 729 (Tex. 2006)

(orig. proceeding); In re Gandy, 649 S.W.3d 921, 928 (Tex. App.—Eastland 2022, orig.

proceeding); see also Hometown Bank, N.A. v. City of Tex. City, No. 14-21-00043-CV,

2022 WL 17491676, at *2 (Tex. App.—Houston [14th Dist.] Dec. 8, 2022, no pet.) (mem.

op.).

We conclude that the trial court abused its discretion by striking Underwriters’ plea

in intervention and that Underwriters lack an adequate remedy by appeal to address this

error. We sustain the sole issue presented in this original proceeding.

V. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

the responses, the additional briefing, and the applicable law, is of the opinion that

Underwriters have met their burden to obtain relief. Accordingly, we lift the stay that we

previously imposed in this case. See TEX. R. APP. P. 52.10. We conditionally grant the

petition for writ of mandamus and direct the trial court to: (1) vacate the January 22, 2025

order denying Underwriters’ plea in intervention; and (2) enter an order denying the

Santoyos’ motion to strike Underwriters’ plea in intervention. Our writ will issue only if the

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trial court fails to comply. We deny Underwriters’ request that we assess costs of court

against the Santoyos.

JAIME TIJERINA
Chief Justice

Delivered and filed on the
11th day of July, 2025.

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