Prudential Property and Casualty Company v. Dow Chevrolet-Olds12/21/1999
Prudential Property and Casualty Company, as subrogee of Braxton Jones and wife, Linda Jones, appeals from a sanction order dismissing with prejudice its subrogation suit against Dow Chevrolet-Olds, Inc. Prudential's insureds, the Joneses, reside in Scottsdale, Arizona, and refused to appear in Texas to have their depositions taken. The district court ordered them to appear in Wood County, Texas, to be deposed and warned Prudential that if the Joneses did not appear, its cause of action would be dismissed. When the Joneses failed to appear as ordered, the court granted Dow's motion to dismiss the case.
Prudential contends that the Joneses should be considered witnesses for the purpose of determining the time and place for depositions, that the trial court may not dismiss an insurance company's subrogation suit for alleged discovery violations by the insureds, and finally, that the trial court abused its discretion in failing to consider a lesser discovery sanction and in dismissing Prudential's suit.
The record shows that Dow serviced the Joneses' automobile in June and July of 1995, and that on August 8, 1995, that vehicle caught fire in the garage of their home, damaging not only the car, but their garage and a portion of their home as well. Prudential was the Joneses' insurance carrier and compensated them for this loss. On February 20, 1997, Prudential filed suit against Dow, claiming that Dow's work on the automobile was the cause of the fire. The suit was filed in Wood County and was brought in the names of the Joneses only. There was no indication from the style or the content of the petition that Prudential was bringing this suit as subrogee of the Joneses. However, after Dow insisted on taking the Joneses' depositions in the county where the suit was brought, Prudential revealed that this action was a subrogation matter and that it was the only real party in interest. Prudential contended that since the Joneses were merely fact witnesses, and since they now live in Arizona, they are not required to give their depositions in Texas. The trial court disagreed and granted Dow's motion to compel the Joneses to appear in Texas to be deposed. The court warned Prudential that if the Joneses did not appear as ordered, the case would be dismissed. The Joneses refused to appear in Texas. Prudential offered to pay Dow's expenses associated with taking the depositions in Arizona, but Dow declined their offer. The trial court then dismissed Prudential's case with prejudice.
In a subrogation action, it is well established that there is only one cause of action for the insured's injuries, and that cause of action belongs to the insured. See Guillot v. Hix, 838 S.W.2d 230, 232 (Tex. 1992) (dealing with subrogation in the context of workers' compensation). However, simply because the claim belongs to the insured does not mean that the insurer must wait for the insured to assert this claim in order for the insurer to recover. See Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (dealing with subrogation in the context of workers' compensation). The insurer can assert its subrogation claim independently of the insured, even though that claim is considered derivative of the insured's claim. See Guillot, 838 S.W.2d at 232, 235. When an insurer asserts this type of claim without the insured, the insurance carrier may sue in its own name or in the insured's name. See Franks, 936 S.W.2d at 960; Camden Fire Ins. Ass'n v. Eckel, 14 S.W.2d 1020, 1021-22 (Tex. Comm'n App. 1929, judgm't adopted); Jaskolski v. Jahn, 410 S.W.2d 858, 859 (Tex. Civ. App.-Waco 1966, no writ); Fort Worth & Denver Ry. Co. v. Ferguson, 261 S.W.2d 874, 880 (Tex. Civ. App.-Fort Worth 1953, writ dism'd).
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