Fort Worth insurance lawyers will tell clients to be very careful when thinking they can trust an insurance adjuster to treat them properly. This is illustrated in the 2000, Court of Appeals [14th Dist.] case styled, Nell Warden v. Supertel Hospitality, Inc, et al.
On May 9, 1997, Warden sued appellees for personal injuries allegedly sustained on May 12, 1995 in an elevator at the Super 8 Motel in College Station, Texas. She did not request issuance of citation until September 25,1997. Supertel and Super 8 were served with citation on September 29, 1997 and Dover was served with citation the following day.
Each defendant filed a Motion for Summary Judgment arguing Warden failed to use due diligence in serving appellees with citation. They were not served until four-and-a-half months after the statute of limitations expired. Warden argued that summary judgment should be denied because the insurance adjuster indicated that service should be delayed to see if Warden’s claim could be settled through negotiations and due to the old age and poor health of appellant.
The testimony about Warden’s poor health and old age and the agreement between the insurance adjuster and Warden’s counsel was presented to the trial court by way of affidavit testimony. The only reason to support Warden’s summary-judgment response was the alleged oral agreement made by John Greer, an adjuster for Dover’s insurance carrier. Greer, in his affidavit testimony, denied ever having any conversations or communications with Warden’s counsel, anyone associated with Warden’s counsel, or with Warden involving service of citation or delay in service of citation.
The parties do not dispute that Warden’s personal injury claims accrued on May 12, 1995, the date of Warden’s alleged injuries. Thus, pursuant to Texas Civil Practices & Remedies Code, Section 16.003, (tort action must be brought within two years of time tort was committed) in order to recover for such claims, Warden was required to “bring suit” no later than May 12, 1997. “Bringing suit” within a limitations period involves both filing a petition within the applicable time period and exercising due diligence in serving the defendant with citation.
Due diligence is that diligence to procure service an ordinarily prudent person would have used under the same or similar circumstances. Texas courts have consistently held that due diligence is lacking as a matter of law where there are unexplained lapses of time between filing of suit, issuance of citation, and service. To obtain summary judgment on the grounds that an action was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service. The existence of diligence is normally a question of fact, but if no excuse is offered for a delay in the service of the citation, or if the lapse of time and the plaintiff’s acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law. Additionally, an offered explanation must involve diligence to seek service of process.
Civil Procedure Rule 11 provides that “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed, and filed with the papers as part of the record, or made in open court and entered of record.” Unless the specific requirements of Rule 11 are met, no agreements between counsel or parties are enforceable. Accordingly, any agreement between the parties whereby Warden delays obtaining service on appellees must meet the requirements of Rule 11. Thus, Warden cannot claim the exercise of “due diligence” by relying on an unenforceable agreement to delay obtaining service on appellees. In fact, Warden’s own evidence demonstrates that no settlement negotiations took place between the filing of the lawsuit and the issuance and service of citations.
Updated: