Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed February 6, 2013




                                     In The

                    Fourteenth Court of Appeals
                                  ____________

                              NO. 14-12-01135-CV
                                  ____________

            IN RE AMERICAN NATIONAL COUNTY MUTUAL
          INSURANCE COMPANY AND AMERICAN NATIONAL
                LLOYDS INSURANCE COMPANY, Relators


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                            212th District Court
                          Galveston County, Texas
             Trial Court Cause Nos. 11CV0882 and 11CV0882-A

                        MEMORANDUM OPINION

      On December 18, 2012, American National County Mutual Insurance
Company and American National Lloyds Insurance Company (“Relators”) filed a
petition for writ of mandamus. See Tex. Gov't Code Ann. § 22.221. Relators ask
this Court to order The Honorable Susan Criss, Judge of the 212th District Court of
Galveston County, Texas, to set aside her order dated December 5, 2012, entered
in trial court cause number 11CV0882,1 styled Jennifer Avery, Individually and as
Representative of the Estate of Brittiany Yuchnewicz v. Jonathan Hammond, Larry
Hammond, and Terrie Hammond.                      Relators assert the trial court abused its
discretion in denying their plea to the jurisdiction. On January 24, 2013, Relators
filed in this court an emergency motion for stay of the proceedings in the trial
court.       On January 25, 2013, that motion was granted and we ordered the
proceedings of the court below be stayed only as to the claims against Relators. A
response to the petition was requested. As of this date, none has been filed. We
conditionally grant the writ.

          Jennifer Avery filed suit against the Hammonds for two incidents, the
second of which resulted in the death of her daughter, Brittiany Yuchnewicz.
Avery subsequently amended her petition to include a declaratory judgment action
against Relators, the Hammonds’ insurers, to determine their obligation to
indemnify the Hammonds. Relators filed a plea to the jurisdiction alleging the trial
court lacked subject matter jurisdiction. After a hearing, the motion was denied.

          Relators claim Avery lacks standing to initiate a declaratory judgment action
against the defendants’ insurance company because no finding that defendants are
liable to Avery has been made. Relators assert the issues are not “ripe.”
          “A tort claimant has no direct claim against the tortfeasor’s liability insurer
until the insured tortfeasor is adjudged liable to the tort claimant.” Farmers Ins.
Exchange v. Rodriguez, 366 S.W.3d 216, 223 (Tex. App. - Houston [14th Dist.]
2012, pet. filed). Thus, until the Hammonds are adjudged liable to Avery, Avery
has no direct claim against Relators. Although Avery is a third-party beneficiary
of the Hammonds’ insurance policy, she cannot enforce the policy directly against

1
    After the plea to the jurisdiction was denied, the trial court entered an order of severance.

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Relators until it has been established, by final judgment or agreement, that the
Hammonds have a legal obligation to pay damages to her. Id. Because there is
currently no obligation for the Hammonds to pay Avery damages, Avery cannot
demonstrate a reasonable likelihood that her claims against Relators will soon
ripen in the case under review, and these claims must be dismissed for lack of
subject-matter jurisdiction.      See id.     There can be no justiciable controversy
regarding the insurer’s duty to indemnify before a judgment has been rendered
against an insured. Id.2 We therefore find the trial court lacks subject matter
jurisdiction as to Avery’s claims against Relators.
       Subject matter jurisdiction is never presumed and cannot be waived. Tex.
Ass’n of Business v. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). A trial court
has no discretion and must dismiss the case as a ministerial act when it lacks
subject matter jurisdiction. Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426
(Tex.App.—Dallas 1988, orig. proceeding). Mandamus is available where the trial
court’s action is void as a matter of law. Lewis v. Leftwich, 775 S.W.2d 848
(Tex.App.—Dallas 1989, orig. proceeding). We therefore find Relators are
entitled to mandamus relief. See also In re John G. and Marie Stella Kenedy
Memorial Foundation, 315 S.W.3d 519, 522 (Tex. 2010) (mandamus relief was
appropriate in case in which trial court lacked jurisdiction because plaintiff had no
standing).




2
  A declaratory judgment can be sought before liability is determined on the duty to defend.
English v. BGP Intern, Inc. 174 S.W.3d 366, 371-72 (Tex. App. -- Houston [14th Dist.] 2005,
no pet.). However, a declaratory judgment on the duty to indemnify is only justiciable “when the
insurer has no duty to defend and the same reasons that negate the duty to defend likewise
negate any possibility the insurer will ever have a duty to indemnify.” Farmers Texas County
Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997) (emphasis in the original). This case is
not within the exception.

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      Accordingly, we conditionally grant the petition for writ of mandamus
and direct the trial court to set aside her December 5, 2012 order, and enter
an order granting the plea to the jurisdiction and dismissing the case. The writ will
issue only if the trial court fails to act in accordance with this opinion.



                                         PER CURIAM

Panel consists of Justices Frost, Christopher, and Jamison.




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