In Re Mesa Underwriters Specialty Insurance Company v. the State of Texas
CourtTexas Court of Appeals, 4th District (San Antonio)
Date FiledSeptember 30, 2026
Docket04-26-00508-CV
StatusPublished
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Full Opinion
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-26-00508-CV
IN RE MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, Relator
Original Proceeding 1
Opinion by: Velia J. Meza, Justice
Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice
Delivered and Filed: September 30, 2026
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND
DENIED IN PART
In this original proceeding, relator Mesa Underwriters Specialty Insurance Company
(“MUSIC”) asserts the trial court abused its discretion when it denied MUSIC’s Rule 91a motion
to dismiss. For the following reasons, we conditionally grant MUSIC’s petition in part and direct
the trial court to dismiss the claims asserted against MUSIC. We deny the petition to the extent it
seeks further relief.
1
This proceeding arises out of Cause No. 2025-CI-25407, styled Geofill Material Technologies, LLC d/b/a Geofill
Construction v. Mesa Underwriters Specialty Insurance Company and Elk Roofing Solutions, LLC, pending in the
37th Judicial District Court, Bexar County, Texas, the Honorable Nicole Garza presiding. The order at issue was
signed by the Honorable Marisa Flores, Presiding Judge of the 224th District Court.
04-26-00508-CV
BACKGROUND
Real party in interest Geofill Material Technologies, LLC d/b/a Geofill Construction
(“Geofill”) sued MUSIC and ELK Roofing Solutions, LLC (“ELK”). Geofill alleged in its
petition 2 that Geofill and ELK entered into a construction contract for ELK to install a commercial
roof able to withstand “peak wind gust (3 sec)” of 90 miles per hour. In connection with the
construction contract, Geofill and ELK entered into a master service agreement, which required
ELK to obtain a commercial general liability insurance policy that named Geofill as an additional
named insured under the policy and required the policy be made primary as to other insurance
policies and noncontributory. According to Geofill, shortly after the roof was installed, the roof
sustained substantial wind damage from Hurricane Beryl, allowing water to enter the building and
causing approximately one million dollars’ worth of damage. Geofill asserts that documented
peak wind gust did not exceed 90 miles per hour.
Geofill alleges: “After the roof sustained damage, [Geofill] promptly reported the loss to
[ELK] who refused to make a claim with its carrier, MUSIC.” Moreover, according to Geofill,
ELK refused to replace the damaged roof without additional payment from Geofill. “As a result
of the refusal by [ELK] to file a claim with its carrier, [Geofill] reported the loss to MUSIC as an
additional named insured.”
Attached to Geofill’s petition are policy endorsements for ELK’s insurance policy with
MUSIC. These endorsements modify the policy to make MUSIC’s insurance “primary and
noncontributory” and add as an additional insured person “any person or organization to which
[ELK is] obligated by virtue of a written contract to provide insurance.” Geofill also filed as a
2
The allegations are taken from Geofill’s first amended petition and its supplement to its first amended petition, which
were its live pleadings at the time the trial court determined MUSIC’s first amended Rule 91a motion to dismiss. See
TEX. R. CIV. P. 91a.5, 91a.6.
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supplement to its petition a “Commercial General Liability Coverage Form,” which Geofill asserts
is the relevant insuring agreement with MUSIC.
According to Geofill:
Contrary to the primary and noncontributory endorsement contained in the
[policy], MUSIC wrongfully disclaimed coverage on September 9, 2024, alleging
that there was no coverage for this matter. Despite [Geofill’s] efforts to get
MUSIC to comply with the [policy] and cover the loss, [Geofill] was forced to
report the loss to its own Builder’s Risk Insurance Company, Zurich Insurance[.]
...
. . . As a result of MUSIC’s wrongful denial of coverage, despite the plain
language in the [policy], thereafter Zurich determined the loss totaled
$1,062,241.46 for the [damage] and paid $865,040.44 for the repairs but required
[Geofill] to pay a sizeable deductible of $197,201.02, which [Geofill] paid. In this
respect, the claim has already been adjudicated and/or “settled” with regards to the
liability of [ELK]. As a result of MUSIC failing to pay the claim as required under
the [endorsement], [Geofill] was required to pay the $197,201.02 deductible, to
which [ELK] failed to contribute and/or indemnify GEOFILL and hold it
harmless.
Based on these allegations, Geofill asserted claims against ELK for breach of contract and
warranties, violations of the Texas Deceptive Trade Practices Act (“DTPA”), and negligence.
Geofill also asserted claims against MUSIC for breach of contract, violations of the DTPA,
violations of Chapters 541 and 542 of the Texas Insurance Code, and breach of the duty of good
faith and fair dealing.
MUSIC filed a Rule 91a motion to dismiss all of Geofill’s claims asserted against it. 3
MUSIC requested that the trial court grant the motion and award MUSIC reasonable and necessary
attorney’s fees and costs. The trial court denied MUSIC’s motion by written order. MUSIC then
filed this petition for writ of mandamus.
3
MUSIC filed a Rule 91a motion directed at Geofill’s initial petition and later an amended Rule 91a motion directed
at Geofill’s amended petition. We consider MUSIC’s amended motion, which, like the Geofill’s amended petition
and supplement, was before the trial court when it ruled. See TEX. R. CIV. P. 91a.5.
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STANDARD FOR GRANTING A WRIT OF MANDAMUS
“Mandamus relief is warranted when the trial court clearly abused its discretion and the
relator has no adequate appellate remedy.” In re Coppola, 535 S.W.3d 506, 508 (Tex. 2017) (orig.
proceeding) (per curiam) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding)). “A trial court abuses its discretion if it fails to analyze or apply the law
correctly.” In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam) (citing
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus relief is
appropriate when the trial court abuses its discretion in denying a Rule 91a motion, in order to
spare the parties and the public the time and money spent on fatally flawed proceedings. In re
Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); In re Essex
Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam).
ABUSE OF DISCRETION
1. Rule 91a Standard
Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss a cause of
action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. MUSIC challenges
only whether Geofill’s claims have a basis in law. “A cause of action has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the
claimant to the relief sought.” Id. Under Rule 91a, “[d]ismissal is appropriate if the plaintiffs’
pleading of the cause of action fails to state a legally cognizable claim, conclusively establishes an
affirmative defense, or otherwise shows the plaintiffs are not entitled to the relief sought.” Carden
v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834, 2026 WL 1851869, at *4 (Tex. June 26,
2026). To state legally cognizable claims, a “plaintiff must plead the essential factual allegations
supporting those claims, which must be sufficient to support a judgment if ultimately proven.” In
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re First Reserve Mgmt., L.P., 671 S.W.3d 653, 662 (Tex. 2023) (citation omitted). Additionally,
“[a] cause of action has no basis in law under Rule 91a if it is barred by an established legal rule
and the plaintiff has failed to plead facts demonstrating that the rule does not apply.” Id. at 661.
We determine the legal effect of pleaded facts de novo. Carden, 2026 WL 1851869, at *4. We
also review a trial court’s ruling on a Rule 91a motion de novo. In re Farmers, 621 S.W.3d at 266.
MUSIC contends generally that Geofill’s claims are barred by the Texas no-direct-action
rule, and that Geofill has failed to allege one or more necessary elements of each of its claims
against MUSIC. We begin with the no-direct-action rule, which determines Geofill’s breach of
contract claim and frames our discussion of its remaining claims.
2. The No-Direct-Action Rule
“Texas law prohibits an injured party from directly suing the defendant’s insurer unless
and until ‘it has been established, by judgment or agreement, that the insured has a legal obligation
to pay damages to the injured party.’” In re Ill. Nat’l Ins. Co., 685 S.W.3d 826, 835 (Tex. 2024)
(quoting State Farm Cnty. Mut. Ins. Co. of Tex. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per
curiam)). This “‘no-direct-action rule’ . . . prohibits declaratory-judgment claims as well as claims
for monetary relief.” Id. at 835–36. The public-policy concerns addressed by the rule include “the
conflict of interest that arises when insurers must defend both themselves and their insureds and
the prejudice that results when juries hear evidence of a defendant’s insurance coverage.” Id. at
835 n.5. When the rule applies, a plaintiff lacks standing. See KLLM Transp. Servs. v. Hallmark
Cnty. Mut. Ins. Co., No. 04-16-00066-CV, 2016 WL 4772349, at *2 (Tex. App.—San Antonio
Sept. 14, 2016, no pet.).
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Geofill contends that the no-direct-action rule is inapplicable because Geofill is an
additional insured under MUSIC’s insurance policy, and Geofill “seeks indemnity for liquidated
damages that it has already paid.” According to Geofill:
After MUSIC denied the claim, Geofill was forced to submit the loss to its builders-
risk insurer, Zurich. Zurich determined the loss totaled $1,062,241.46 and paid
$865,040.44 for repairs, while Geofill paid it[s] contractual $197,201.02
deductible. . . . Geofill also had to pay Elk to repair the roof. These amounts were
adjusted or “settled”, but Elk and MUSIC failed to contribute or indemnify Geofill.
MUSIC responds that its policy is a liability policy, which pays only those sums an insured
“becomes legally obligated to pay as damages.” According to MUSIC:
Under Texas’s No Direct Action Rule, no one may sue a liability insurer for those
sums until that obligation has been fixed by judgment or settlement. In re Illinois
Nat’l Ins. Co., 685 S.W.3d 826, 835 (Tex. 2024). Geofill pleaded no such judgment
or settlement. Instead, Geofill approaches this lawsuit, arguing that as an additional
insured, it should have a direct claim, not for indemnity it was adjudicated to owe
to another, but for alleged property damage to its own property. Geofill does this
in the same lawsuit in which it seeks to hold MUSIC’s named insured liable for the
same damages. The No Direct Action Rule bars this attempt to treat the third-party
policy as a first-party one.
We hold, based on Geofill’s allegations and the pleading exhibits, that the no-direct-action
rule applies. See TEX. R. CIV. P. 91a.6. Although Geofill is an additional insured on MUSIC’s
policy, Geofill’s lawsuit concerns its third-party claim under that policy, which arises based on
ELK’s asserted negligence and breach of contract in constructing a roof for Geofill’s building. In
this posture, Geofill, as the injured party, cannot sue ELK’s insurer, MUSIC, “unless and until it
has been established, by judgment or agreement, that [ELK] has a legal obligation to pay damages
to [Geofill].” In re Ill. Nat’l Ins., 685 S.W.3d at 835 (citation omitted).
As the petition alleges and pleading exhibits show, MUSIC’s policy is a commercial
general liability policy. It is a standard liability policy, in which MUSIC assumed the duty to
defend and the duty to indemnify its insureds. See Landmark Am. Ins. Co. v. Eagle Supply & Mfg.
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L.P., 530 S.W.3d 761, 773 (Tex. App.—Eastland 2017, no pet.) (describing similar policy); see
also In re Ill. Nat’l Ins., 685 S.W.3d at 831 (“Liability insurance covers damage the insured does
to others.” (citation omitted)). “As a liability insurance policy, the . . . policy is a ‘third-party’
policy that is designed to insure against a loss to third parties caused by the insured or another
covered person for whom the covered person may be legally responsible.” Landmark, 530 S.W.3d
at 768; see also Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 18 (Tex. 2007)
(“[T]hird-party insurance traditionally refers to liability policies that protect and indemnify an
insured against the claims of unnamed third parties.”).
Geofill alleges that ELK is the person legally responsible for damages resulting from
defective construction of Geofill’s roof. Under these allegations, ELK, the named insured, could
seek liability coverage from MUSIC by filing a third-party claim if ELK were to become legally
obligated to pay damages to Geofill. See Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256
S.W.3d 660, 674 (Tex. 2008); Landmark, 530 S.W.3d at 768. Such a claim would satisfy the
policy’s coverage terms, which require MUSIC to “pay those sums that the insured becomes
legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this
insurance applies.” Geofill, as an injured party, could become a third-party beneficiary of the
insurance policy, but the no-direct-action rule would apply until it was established that the insured,
ELK, had a legal obligation to pay damages. See In re Ill. Nat’l Ins. Co., 685 S.W.3d at 835; Ollis,
768 S.W.2d at 723; Landmark, 530 S.W.3d at 772.
Geofill, however, is attempting to pursue a first-party claim based on its own property
damage, even though MUSIC’s policy is not a first-party insurance policy. “A first-party
insurance policy is typically payable only to the insured or a named beneficiary for losses personal
to the insured. A life, accident, and health policy is an example.” Lamar Homes, 242 S.W.3d at
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17–18. First- and third-party insurance claims are distinguished “based on the claimant’s
relationship to the loss.” Evanston, 256 S.W.3d at 674. “A first-party claim is stated when an
insured seeks recovery for the insured’s own loss, whereas a third-party claim is stated when an
insured seeks coverage for injuries to a third party.” Id. (citation omitted). 4
Geofill argues against application of the no-direct-action rule by asserting that it “is not a
stranger to the policy,” and that its status as an additional insured provides it with standing to sue.
In this context, however, where Geofill sues as a third-party claimant, its status as an additional
insured does not defeat the no-direct-action rule. See Landmark, 530 S.W.3d at 773 (“Eagle’s
status as an additional insured does not change its status as a third-party claimant under the [general
commercial liability] policy with respect to its claims against [the named insured] for property
damage.”); Ohio Cas. Ins. Co. v. Time Warner Entm’t Co., L.P., 244 S.W.3d 885, 889 (Tex.
App.—Dallas 2008, pet. denied) (explaining designation as additional insured does not negate
application of the no-direct-action rule where additional insured sought coverage based on named
insured’s alleged liability); cf. Rumley v. Allstate Indem. Co., 924 S.W.2d 448, 449–50 (Tex.
App.—Beaumont 1996, no writ) (wife could not sue husband’s liability insurer for extra-
contractual damages, even though she was also a named insured, because in the dispute, she
“assumed the posture of a third-party claimant”). 5
4
Presumably Geofill filed a first-party claim with its insurer Zurich. See Evanston, 256 S.W.3d at 674.
5
The Texas Supreme Court has never considered the exact circumstances raised by Geofill’s pleadings, but its
holdings do not contradict ours. In Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 663–
70 (Tex. 2008) an additional insured sued an insurer directly, but the supreme court did not dismiss the claim, or even
discuss the no-direct action rule. Geofill contends that Evanston “supplies a direct and controlling legal path for
Geofill’s contractual claims” because the additional insured, ATOFINA, “brought the insurer[, Evanston,] into the
case before settlement, and the Supreme Court treated the action as an insured’s direct coverage dispute — not as a
prohibited action by a stranger.” Geofill, however, avoids the distinguishing characteristic of that case: ATOFINA
was sued by a third-party; thus, unlike Geofill, ATOFINA is not a third-party claimant. See id. at 671; see also id. at
675 (“This case in which ATOFINA seeks coverage for injuries sustained by a third party presents a classic third-
party claim.”). Geofill also cites ExxonMobil Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 672 S.W.3d 415
(Tex. 2023), which is similarly distinguishable because the additional insured sought liability coverage after being
sued by an injured worker. See id. at 417.
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In short, the no-direct-action rule applies because Geofill proceeds as a third-party claimant
under MUSIC’s policy.
3. Breach of Contract
Because the no-direct-action rule applies, Geofill is prohibited, as an injured party, from
directly suing to enforce MUSIC’s policy, unless and until it has been established, by judgment or
agreement, that ELK has a legal obligation to pay damages to Geofill. See In re Ill. Nat’l Ins., 685
S.W.3d at 835. Geofill’s settlement with its insurer, Zurich, is not an “agreement or a judgment
against” ELK, see Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 265–66 (Tex. 1969), or a
“judgment or agreement, that [ELK] has a legal obligation to pay damages to [Geofill],” see In re
Ill. Nat’l Ins., 685 S.W.3d at 835. Thus, the no-direct-action rule currently bars Geofill’s breach
of contract claim. See In re Ill. Nat’l Ins., 685 S.W.3d at 835; see also Murray, 437 S.W.2d at
265–66 (“Under [a liability] policy a third party’s right of action against the insurer does not arise
until he has secured . . . an agreement or a judgment against the insured.”).
4. Statutory and Common-law Claims
In addition to its contract claim, Geofill asserts a claim for violations of the DTPA, claims
under Chapters 541 and 542 of the Insurance Code, and a claim for breach of the common-law
duty of good faith and fair dealing. See TEX. BUS. & COM. CODE ANN. §§ 17.41–17.63; TEX. INS.
CODE ANN. §§ 541.001–.454, 542.001–.302; Viles v. Sec. Nat. Ins. Co., 788 S.W.2d 566, 567 (Tex.
1990). Geofill argues that, regardless of whether it can enforce MUSIC’s policy as a contractual
matter now, it can pursue alternative theories of recovery that are not barred by the no-direct-action
rule. Assuming without deciding that Geofill’s statutory and common-law claims could survive
the no-direct-action rule when its contract claim cannot, we hold that Geofill has failed to plead
legally cognizable statutory or common-law claims. See Carden, 2026 WL 1851869, at *4; In re
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First Reserve, 671 S.W.3d at 662. Each claim is unavailable to a third-party claimant, such as
Geofill.
Specifically, with the DTPA, only a “consumer” can maintain a cause of action directly
under the statute. See TEX. BUS. & COM. CODE ANN. §§ 17.45(4), 17.50(a); Crown Life Ins. Co.
v. Casteel, 22 S.W.3d 378, 386 (Tex. 2000). A third-party claimant is not a “consumer,” within
the meaning of the statute; therefore, as pled, Geofill has not stated a legally cognizable DTPA
claim. See TEX. BUS. & COM. CODE ANN. § 17.45(4); Transport Ins. Co. v. Faircloth, 898 S.W.2d
269, 273–75 (Tex. 1995) (explaining a third-party claimant under an insurance policy is not a
“consumer” within the meaning of the DTPA). Chapter 541 of the Insurance Code allows for a
private right of action for deceptive trade practices specifically enumerated in the DTPA and for
other unfair settlement practices. See TEX. INS. CODE ANN. § 541.151. However, the Insurance
Code’s tie-in to the DTPA does not remove the DTPA’s requirement that a plaintiff be a
“consumer.” See Crown Life, 22 S.W.3d at 381 (discussing prior version of section 541.151); see
also Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 438 n.103 (Tex.
2023).
With respect to other unfair settlement practices covered by Chapter 541, Geofill’s petition
references section 541.060 as a basis for its Chapter 541 claim. However, section 541.060 likewise
“does not provide a cause of action to a third party asserting . . . claims against an insured covered
under a liability insurance policy.” Id. § 541.060(b); see Reule v. Colony Ins. Co., 407 S.W.3d
402, 413 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“Even if Reule paid premiums for
and was entitled to liability coverage under the [general liability policy], in her current posture as
a third-party claimant, [the insurer] did not owe her duties under sections 541.060 and 542.051
and the duty of good-faith and fair dealing.”).
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Similarly, Geofill cannot maintain a claim under Insurance Code Chapter 542, the prompt-
payment statute, because the statute defines “claim” as “a first-party claim . . . made by an insured
or policyholder under an insurance policy or contract . . . [that] must be paid by the insurer directly
to the insured . . .” TEX. INS. CODE ANN. § 542.051(2). Again, Geofill alleges its claim as a third-
party claimant on MUSIC’s liability policy. See id.; Reule, 407 S.W.3d at 413; see also Lamar
Homes, 242 S.W.3d at 16–18 (explaining “claim,” as defined by section 542.051(2), does not
extend to a claim arising when “an insured seeks coverage for injuries to a third party” (citation
omitted)).
Last, an insurer’s duty of good faith and fair dealing does not extend to third-party
claimants. Transport Ins., 898 S.W.2d at 279–80. Because Geofill has alleged a third-party claim,
it has not stated a viable claim for breach of the common-law duty of good faith and fair dealing.
See id.; see also Reule, 407 S.W.3d at 413; Caserotti v. State Farm Ins. Co., 791 S.W.2d 561, 566
(Tex. App.—Dallas 1990, writ denied) (“We conclude that an insurer does not owe the duty of
good faith and fair dealing to its insured who is asserting a third-party claim against another insured
of the same company.”).
In sum, we hold that Geofill has not asserted any legally cognizable claims against MUSIC
under the DTPA or the Insurance Code and has not stated a viable claim for breach of the common-
law duty of good faith and fair dealing. See Carden, 2026 WL 1851869, at *4; In re First Reserve,
671 S.W.3d at 661–62.
5. Dismissal with Prejudice and Attorney’s Fees
Because Geofill did not allege any legally cognizable claims against MUSIC, the trial court
abused its discretion by denying MUSIC’s Rule 91a motion and by failing to dismiss Geofill’s
claims. See TEX. R. CIV. P. 91a.1; Carden, 2026 WL 1851869, at *4; In re First Reserve, 671
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S.W.3d at 661–62. Accordingly, we direct the trial court to dismiss Geofill’s claims against
MUSIC.
However, we leave the determination of whether dismissal should be with or without
prejudice to the trial court. MUSIC requests in its petition that we direct the trial court to dismiss
Geofill’s claims with prejudice, but MUSIC never requested dismissal with prejudice in its Rule
91a motion. Therefore, the trial court was never presented with the request, which is typically
required before we grant mandamus relief. See In re Coppola, 535 S.W.3d at 510 (“Due to the
extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate
request for action by the respondent, and the respondent’s erroneous refusal to act.”). Additionally,
in its petition, MUSIC provides no substantive analysis as to whether dismissal should be with or
without prejudice, and either is allowed under Rule 91a. See TEX. R. CIV. P. 91a.1; Litka v. Byrkit,
No. 03-25-00292-CV, 2026 WL 1424272, at *3 (Tex. App.—Austin May 21, 2026, no pet.) (mem.
op.) (noting Rule 91a allows for dismissal without prejudice if a defect is potentially curable).
Under these circumstances, we cannot say the trial court abused its discretion by failing to dismiss
with prejudice. See In re Sanders, 153 S.W.3d at 56.
Likewise, the record presents no basis for us to direct the trial court to conduct additional
proceedings on attorney’s fees, in order to correct an abuse of discretion. MUSIC did not request
the trial court to conduct additional proceedings on attorney’s fees; it only requested an award of
attorney’s fees. See In re Coppola, 535 S.W.3d at 510. Moreover, while Rule 91a.7 allows for an
award of attorney’s fees to the prevailing party, the award is discretionary. See TEX. R. CIV. P.
91a.7; Montoya Frazier v. Maxwell, 734 S.W.3d 1, 16 (Tex. App.—Fort Worth 2025, pet. denied).
On this record, MUSIC has not shown an abuse of discretion warranting mandamus relief to direct
the trial court to conduct additional proceedings on attorney’s fees.
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INADEQUATE REMEDY BY APPEAL
“Mandamus relief is appropriate when the trial court abuses its discretion in denying a Rule
91a motion to dismiss.” In re Farmers, 621 S.W.3d at 266. Under similar circumstances, where
a trial court denied a Rule 91a motion to dismiss claims against an insurer based on the no-direct-
action rule, the supreme court determined that “mandamus relief is appropriate to spare the parties
and the public the time and money spent on fatally flawed proceedings.” In re Essex, 450 S.W.3d
at 528. Pursuant to this precedent, we hold MUSIC has established that it lacks an adequate
remedy by appeal.
CONCLUSION
We conclude that the trial court abused its discretion by denying MUSIC’s Rule 91a motion
to dismiss and that MUSIC has an inadequate remedy by appeal. Therefore, we conditionally grant
MUSIC’s petition for writ of mandamus in part and direct the trial court to vacate its order denying
MUSIC’s Rule 91a motion to dismiss and grant the motion to dismiss Geofill’s claims against
MUSIC. We deny MUSIC’s petition to the extent it seeks further relief. MUSIC has not shown
an abuse of discretion regarding the trial court’s failure to dismiss Geofill’s claims with prejudice
and its failure to conduct additional proceedings on attorney’s fees. The writ of mandamus will
issue only if the trial court fails to comply with our opinion and order within fifteen days.
Velia J. Meza, Justice
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