Titan Indemnity Company, United States Fidelity and Guaranty Company, St. Paul Fire and Marine Insurance Company, and St. Paul Travelers Companies, Inc. v. Old South Insurance Group, Inc.--Appeal from 166th Judicial District Court of Bexar County

DISSENTING OPINION

Nos. 04-05-00826-CV & 04-05-00827-CV

TITAN INDEMNITY COMPANY, United States Fidelity & Guaranty Company,

St. Paul Fire & Marine Insurance Company, and St. Paul Travelers Companies, Inc. ,

Appellants

v.

OLD SOUTH INSURANCE GROUP, INC. and Carroll Hood ,

Appellees

From the 131st Judicial District Court, Bexar County, Texas

Trial Court Nos. 2005-CI-07752 & 2005-CI-07754

Honorable John D. Gabriel, Jr. , Judge Presiding

Opinion by: Catherine Stone , Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: December 27, 2006

While acknowledging that the trial court is to determine a witness's credibility, the majority states that we are required to judge the actions taken by St. Paul from Schwartz's "tunnel vision" mind set. In doing so, the majority necessarily substitutes its judgment for that of the trial court in determining that Schwartz's testimony was credible despite evidence being presented that: (1) Schwartz received the three separate petitions with different styles and cause numbers by three separate e-mails with different subject lines containing each of the plaintiffs' names; (2) Schwartz received a second set of the petitions by e-mail a few days later; (3) HICO and Old South were represented by two different attorneys; and (4) Titan's general counsel and other St. Paul employees recognized that there were three separate lawsuits. Even if this evidence does not directly controvert Schwartz's testimony, it calls his credibility into question. Furthermore, because subjective state of mind can be proven by circumstantial evidence, I question the need for evidence directly controverting Schwartz's testimony. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).

This court has joined countless other courts in defining conscious indifference as follows:

Conscious indifference is generally defined as the failure to take some action that would seem obvious to a reasonable person under similar circumstances.

Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex. App.--San Antonio 2002, pet. denied). I believe the trial court was required to look at the circumstances as a whole, including the entire history of the litigation in Mississippi, to determine what action would seem obvious to a reasonable person. Given those circumstances, I do not believe the trial judge abused his discretion in finding that a reasonable person would have asked, "What happened to the other two plaintiffs who had been awarded millions of dollars by a Mississippi jury?" particularly given the on-going correspondence between the parties regarding the HICO lawsuit and the cost of the Mississippi litigation. Because the majority holds that the trial court abused its discretion in denying St. Paul's motion for new trial, I respectfully dissent.

Alma L. L pez, Chief Justice