Crum & Forster Specialty Insurance Co. v. Creekstone Builders, Inc.
489 S.W.3d 473
Tex. App.2015Background
- Crum & Forster (insurer) sued in Texas for a declaratory judgment that two CGL policies did not cover Creekstone entities for a South Carolina construction‑defects claim; the insurer did not name the POA (the South Carolina judgment creditor) in the Texas suit.
- The POA obtained a South Carolina state court judgment against Creekstone SC I for actual and punitive damages; subsequently the POA, Creekstone SC I, and Creekstone Builders sued Crum & Forster in federal court in South Carolina seeking coverage/indemnity.
- Creekstone moved in Texas to dismiss the insurer’s declaratory‑judgment action on two grounds: (1) failure to join the POA, a necessary and indispensable party; and (2) forum non conveniens because South Carolina pending litigation could resolve all related disputes.
- Creekstone supported dismissal with an affidavit from the POA president (South Carolina entity, witnesses and proof located in South Carolina) and filings showing a related federal action pending in South Carolina; Creekstone presented no live evidence at the hearing.
- The Texas trial court granted dismissal both for failure to join a necessary party and on forum non conveniens grounds; Crum & Forster appealed challenging (a) the necessity of joining the POA and (b) the forum non conveniens dismissal.
- The appellate court affirmed on forum non conveniens grounds and declined to reach the necessary‑party issue.
Issues
| Issue | Plaintiff's Argument (Crum & Forster) | Defendant's Argument (Creekstone) | Held |
|---|---|---|---|
| Whether dismissal for forum non conveniens was proper | Dismissal improper because Creekstone presented no live evidence at hearing and private/public factors favor Texas | South Carolina is adequate alternative; most proof, witnesses, judgment, and related suit are in South Carolina making that forum more convenient | Affirmed: trial court did not abuse discretion; sufficient evidence in record supported dismissal |
| Whether POA was a necessary and indispensable party requiring dismissal | POA not necessary; its interests are derivative/privity with Creekstone and a Texas judgment would preclude relitigation | POA as South Carolina judgment creditor has an interest affected by the coverage declaration and cannot be sued in Texas, so dismissal required | Not decided (court affirmed on forum non conveniens and declined to address this issue) |
Key Cases Cited
- Quixtar, Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28 (Tex. 2010) (forum non conveniens standard and deference to trial court)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (U.S. 1981) (forum non conveniens principles)
- Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (U.S. 1947) (public and private interest factors for forum non conveniens)
- Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico, S.A. de C.V., 336 S.W.3d 664 (Tex. App. 2010) (movant’s burden and proof in forum non conveniens analysis)
- Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) (courts may consider written submissions instead of live testimony)
- Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492 (Tex. App. 2006) (trial court needs some evidence in the record to balance forum non conveniens factors)