D & M Marine, Inc. v. Turner, 409 S.W.3d 853

The Turners sued D & M Marine for construction defects; a jury found D & M solely liable and the trial court entered judgment in March 2012. D & M appealed; the court of appeals affirmed liability but reversed attorneys’ fees.
Mid-Continent (D & M’s insurer) defended D & M in the Turners’ suit and later filed a federal declaratory-judgment action seeking a declaration it owed no defense/indemnity to D & M.
D & M ceased operations and had no attachable assets, so the Turners filed a state-court application for a turnover order seeking D & M’s rights in any insurance policies or claims against Mid-Continent.
Mid-Continent obtained a default judgment against D & M in federal court after D & M did not answer; the Turners obtained a state-court turnover order assigning D & M’s rights in insurance policies/claims to the Turners.
The federal court later vacated its default judgment for extraordinary circumstances; Mid-Continent’s declaratory action remains pending. D & M appealed the state turnover order.

Issue	Plaintiff's Argument (Turners)	Defendant's Argument (D & M)	Held
Whether unasserted causes of action against insurer (e.g., bad-faith/failure-to-indemnify) are subject to turnover	Turners: such unasserted claims are property and may be turned over because Turners share D & M’s interest in maximizing recovery to satisfy the judgment	D & M: an unasserted claim against an insurer is not subject to turnover; turnover cannot force assertion of causes of action or overcome privileges	Court: affirmed turnover — unasserted claims against insurer may be turned over here because public-policy/open-courts concerns that block turnover in other cases are absent
Whether turnover could be ordered directly to the Turners rather than to a sheriff/receiver	Turners: sought direct assignment/transfer of D & M’s insurance rights to facilitate execution	D & M: turnover must be executed through a designee (sheriff/constable/receiver); direct turnover to creditor is improper	Court: error in direct-transfer procedure was voidable; D & M failed to preserve complaint about execution method, so issue waived

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) (standard for reviewing turnover orders and scope of turnover remedy)
Associated Ready Mix, Inc. v. Douglas, 843 S.W.2d 758 (Tex. App.—Waco 1992) (turnover may reach causes of action against third parties when creditor shares debtor’s interest in pursuit)
Charles v. Tamez, 878 S.W.2d 201 (Tex. App.—Corpus Christi 1994) (turnover improper to force an insured to assert a claim the insured does not wish to pursue)
Criswell v. Ginsberg & Foreman, 843 S.W.2d 304 (Tex. App.—Dallas 1992) (turnover cannot compel assertion of malpractice claim against an attorney representing public-policy/open-courts concerns)
Ex parte Johnson, 654 S.W.2d 415 (Tex. 1983) (procedural requirements/limits on direct turnover to judgment creditors)
Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011) (voidable trial-court errors must be timely raised or are waived)