COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
THERESA RUEBBLING, Individually a nd a s Heir o f VICTORIA RANGEL, Deceased, Appellant,

v. FOREMOST COUNTY MUTUAL INSURANCE COMPANY, Appellee. § § § § § § No. 08

- 23

- 00054

- CV

Appeal from
421st Judicial District Court of Caldwell County, Texas (TC# 21

- O

- 421)

DISSENT ING MEMORANDUM OPINION I write separately b ecause I disagree that Foremost properly established standing to bring

an interpleader action . At the time it filed its petition, Foremost ’ s insured ’ s liability under the auto insurance policy remained contested in a wrongful death law suit pending in Travis County

. Thus,
Foremost did not yet qualify as a disinterested stakeholder of the $100,000 of its insured ’ s policy limits

. Moreover, as to those funds, neither Theresa Ruebbling n or Jorge Rangel, as Victoria ’ s heirs , qualified as “ claimants ”

— much l ess “ rival claimants ”

— as no direct

- action rights had yet

ac crued to either of them while the wrongful death action remained in dispute. For these reasons,
I would conclude that Foremost lacked standing to seek interpleader protection and a ttorney ’ s fees at the time when it filed suit

. Thus , I would conclude the Caldwell County district court erred in2

denying Theresa ’ s plea to the jurisdiction as it lacked subject

- matter jurisdiction over Foremost ’ s interpleader action

. 

### S TANDING AND 

### I NTERPLEADER 

### P RACTICE S tanding is a component of subject matter jurisdiction, and a court must have subject matter jurisdiction to entertain a suit. Mosaic Baybrook One, L.P. v. Simien , 674 S.W.3d 234, 250 ( Tex. 2023); State Bar of Texas v. Gomez , 891 S.W .2d 243, 245 ( Tex. 1994) ( “ As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to suit, jurisdiction over the subject matter, jurisdiction to enter the particu lar judgment, and capacity to act as a court. ” ). Along these lines, “ [s]ubject matter jurisdiction requires that the party bringing the suit have standing, that a live controversy exists between the parties, and that the case be justiciable. ” Owens v. Alls tate Ins. Co. , 996 S.W.2d 207, 208 ( Tex. App.

— Dallas 1998, pet. denied) (discussing standing in the context of an interpleader suit). Standing is a threshold requirement

— a constitutional prerequisite

— to maintaining a lawsuit.
Farmers Tex as Cnty. Mut. Ins. Co. v. Beasley , 598 S.W.3d 237, 24

– 41 ( Tex. 2020); see also
Owens , 996 S.W.2d at 208. In its earlie st form, “ an i nterpleader action allow ed a stakeholder to bring the disputed sum or property in to court and have its own liability discharged, leaving the rival claimants to litigate whatever controversy existed

. ” Savs. & Profit Sharing Fund of Sears Employees v. Stubbs , 734 S.W.2d 76, 79 ( Tex. App.

— Austin 1987, no writ .)

. Indeed, “ [t] he remedy was for the protection of the disinterested and inn ocent stakeholder who claimed no interest in the property and who, because of conflicting claims and uncertain position , ” knew not what to do. Id

. (citing Nixon v. Malone , 262, 98 S.W. 380, 385 ( Tex. 1908) ) ( “ each of said companies was a disinterested stakeholder, a dmitting its liability, but not knowing to whom to pay the money,

. . . and asked to3

be allowed to pay the money in its hands,[], into court, and that the diverse claimants be required to interplead among themselves, and that th e court settle their respective rights to said money[.] ” ). Such an innocent stakeholder ordinarily sought interpleader protection as a means to “ ask [] instruction s and protection f rom a court of equity. ” Nixon , 98 S.W. at 385

. But, in doing so, the stakeho lder had to plead and prove four essential elements: “ (1) that he was subject to conflicting claims to the same property; ( 2) that the adverse claims were dependent or derived from a common source; (3) that he claimed no interest in the property; and (4) t hat he was not independently liable to any claimant but rather stood perfectly indifferent between them. ” Stubbs , 734 S.W.2d at 79 (citing 1 R OY W. M C D ONALD , T EXAS C IVIL P RACTICE § 3.38 at 289 (Rev. ed. 1981)). C ourts were instructed to give every reasonable doubt in favor of allowing the interpleader action when applying these requirements

. Id. (citing Nixon , 98 S.W. at 385). Against this common law background, R ule 43 was adopted in 1941 as p art of the initial
pronou ncement of the Texas Rules of Civil Procedure

. See id. In modern times , this rule has been interpreted as requiring a n interpleader petitioner to plead and prove : “ (1) that he is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) that he has not unreasonably delayed filing his action for interpleader; and (3) that he has unconditionally tendered the funds into the court. ” Id .; see also Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 8 50 ( Tex. 2018)

. T he Supreme Court of Texas has instructed that “ interpleader jurisdic ti on is determined at the time the interpleader complaint is filed. ” Rodriguez , 547 S.W.3d at 850. Consequently, the jurisdictional inquiry is limited to the initial inter pleader petition without need to account for subsequent events, such as the later elimination of adverse claims to interpleaded funds. Id . (citing Auto Parts Mfg. MS, Inc. v. King Constr. of Houston, L.L.C. , 782 F.3d 186, 193

– 94 (5 th Cir. 2015)4

(holding th at a properly filed interpleader did not become improper even when the prospect of multiple adverse claims against the interpleaded funds was eliminated). A f ailure to meet any one of the three required elements defeat s a petitioner ’ s standing

— as an innocent stakeholder

— and preclude s relief by means of an interpleader action

. Stubbs , 734 S.W.2d at 79. 

### A NALYSIS
A. Whether Foremost q ualified as a d isinterested s takeholder To begin, Foremost claims the jurisdictional evidence conclusively established it was a n innocent, disinterested stakeholder at the time it sought interpleader protection and attorney ’ s fees. Specifically, it claims it had no pecuniary interest in the $100,000 policy limits

— which it characterizes as “ settlement proceeds ”

— even though it plainly acknowledge d its insured ’ s liability remained contested in the wrongful death lawsuit pending in Travis County

. Although Foremost largely relies on pronouncements in Rodriguez , I would conclude th e case does not support its position. Interpreting i nterpleader requirements, Rodriguez referenced Black ’ s Law Dictionary for the ordinary meaning of the term, “ innocent, disinterested stakeholder. ” Rodriguez , 547 S.W.3d at 852. There, it held that “ innocent ” means “ free from legal fault; ” “ disinterested ” means “ not having a pecuniary interest in the matter at hand; ” and “ stakeholder ” means “ [a] disinterested third party who holds money or property, the right to which is disputed between two or more other parties. ” Id. (citing B LACK ’ S L AW D ICTIONARY (10th ed. 2014)). As a result, “ [u]nder the unambiguous meaning of [the] term ‘ disinterested stakeholder, ’ a party who asserts a claim to the interpleaded funds is not a disinterested stakeholder. ” Id . (citing FinServ. Cas. Corp. v. Transamerica Life Ins.
Co. , 5 23 S.W.3d 129, 141 ( Tex. App.

— Houston [14 th Dist.] 2016, pet

. denied). T he Court thus5

concluded petitioner ’ s position as an alleged tortfeasor prevented it from being a disinterested stakeholder. Id

. Rodriguez explained that an interpleader action is appropriate in situations such as when an insurance company fac es competing claims to benefits or when a bank fac es multiple claims to funds in a bank account

. Nonetheless, it noted, “ [b] ut we find no precedent to support extending the protection of in terpleader

— and the accompanying attorney ’ s fees

— to an alleged tortfeasor/defendant. ” Id. Th e court add ed “ the allowance of attorney ’ s fees for an alleged tortfeasor/defendant attempting to interplead the extent of his liability is adverse to public policy. ” Id. The Court offered as further explanation an argument posited from counsel for one of the claimants:
It ’ s the same thing as if I ’ m driving down the street on the way home today and I hit a car with two people in it and I injure the driver and I injure the passenger. And they turn around to me and they say , “ We ’ re both going to sue you for money. ” I ’ ve only got $1,000. I can ’ t give you more than $1,000. That ’ s all I have, and I have no insurance. Okay. “ Well, ” driver says, “ I want $1,000 ” ; passeng er says , “ I want $1,000. ” I ’ m like, “ conflicting claims. I ’ m going to interplead this to the court. Judge, I ’ m interpleading it. I ’ m an attorney. It costs me $1,000 to do that, so I ’ ll take the $1,000 back. Sorry, guys, you get nothing.
Id. ( cleaned up )

. Relevant here, I agree with the Court ’ s interpretation of innocent, disinterested stakeholder, and I would appl y th e limitation here , although the case is not directly on point

. As j udg ed from the time it filed its interpleader petition, I would hold that Foremost is not

an “ innocent ” or “ disinterested ” stakeholder

. As an insurer of Ericka Ruebbling (who permitted her son Damian to drive her vehicle), Foremost stands in the shoes of an all eged tortfeasor by vi r tue of its contractual liability under Ericka ’ s auto insurance policy. Though Foremost (and the majority) characterize the interpleaded funds as “ settlement proceeds, ” in actuality, those funds remain contested as no liability has yet been adjudicat ed nor a settlement reached with Foremost ’ s6

insured. Contrary to its self

- servi ng, conclusory argument , Foremost ’ s only interest i n the interpleader was in fact pecuniary in nature in that it immediately sought attorney ’ s fees from the policy limits of its insured ’ s liability coverage. Although interpleader relief might be available a t a future time when liability has been determined or resolved, I would conclude that Foremost did
not yet qualify as a disinterested stakeh older when liability remained contested in Travis County.
B. Whether Theresa or Jorge q ualified as policy c laimants
For a second reason , I would hold that Foremost was not entitled to bring its interpleader action when it filed in Caldwell County

. At that poi nt, Theresa and Jorge were not yet entitled to bring direct claims against the funds held by Foremost without s uccessful ly adjudicatin g Ericka ’ s liability in the Travis County suit or otherwise obtaining her consent to settlement. Plainly , on this record, I would conclude that Theresa and Jorge had no direct

- action rights against Foremost despite the existence of a purported release signed by them

. The “ Full and Final Release of Bodily Injury Liability Wrongful Death Claim , ” dated
June 24, 2 021, purported to discharge three parties, Ericka, Damian ’ s estate, and Foremost , from any bodily injury liability wrongful death claim. As consideration, Theresa and Jorge were to receive payment of $100,000, the bodily injury policy limit s Ericka purchas ed from Foremost under her auto insurance policy. In late June and early July 2021, Theresa ’ s attorney, Jorge ’ s attorney, and Foremost ’ s representatives exchanged a number of emails discussing how to pay out the policy proceeds: ultimately, they did not co ncur. On July 21, 2021, Theresa filed suit in Travis County against Ericka, Foremost ’ s insured; Damian ’ s estate; and the driver of the second vehicle involved in the collision. On August 3 , 2021 , despite the ongoing tort litigation in Travis County,
Foremo st filed its petition for interpleader in Caldwell County, where it later requested and was7

awarded approximately twenty percent of the policy proceeds as attorney ’ s fees, all before liability

was yet determined or settled on the part of its insured.
An ex amination of whether Theresa and Jorge had legitimate claims to Foremost ’ s policy proceeds at the time it filed for interpleader requires an analysis of the nature of their claims. In
Texas , injured third

- part ies like Theresa and Jorge, who lost their daughter Victoria allegedly as a result of a car collision, cannot enforce liability directly against an insurer “ until it has been established, by judgment or agreement, that the insured has a legal obligation to pay damages to the injured party. ” State Farm Cnty. Mut. Ins. Co. of Tex as v. Ollis , 768 S.W.2d 722, 723 ( Tex. 1989) (per curiam). Theresa and Jorge had not, as of yet, obtained a judgment against
Foremost. Nor does the purported release indicate by its terms th ey had reached an agr eement as to the insured ’ s liability. As a result, Foremost had no legal obligation to them that could be directly enforced. See id . To that extent, they are no t yet rival claimants to Foremost ’ s funds

. See id. Relevant to the lack of a judgment against Fo remost, Texas is not a direct

- action state,

see id. Penny v. Powell , 347 S.W. 2d 601, 603 ( Tex. 1961), meaning that “ [a] tort claimant has no direct cause of action against the tortfeasor ’ s liability insurer until the insured

- tortfeasor is adjudged liable t o the tort claimant. ” Jones v. CGU Ins. Co. , 78 S.W.3d 626, 629 ( Tex. App.

— Austin 2002, no pet.) (citing Grasso v. Cannon Ball Motor Freight Lines , 81 S.W.2d 482, 486 ( Tex. 1935) ). B ased on this prohibition, I would hold that neither Theresa nor Jorge could pursue a direct claim against Foremost at the time it sought interpleader protection and attorney ’ s fees

. Moreover, Foremost did not establish that Theresa or Jorge had claim s to policy proceeds under the Release language itself. A third

- party tort claimant has no direct action based on an agreement unless the agreement determines the tortfeasor ’ s liability. See Ohio Cas. Ins. Co. v.
Time Warner Ent

. Co., L.P ., 244 S.W.3d 885, 888 ( Tex. App.

— Dallas 2008, pet. denied)

. Here,8

Foremost did not produce an agreement determining such liability as the Release it relies on specifically provides it “ is not an admission of liability by any of the RELEASED PARTIES, by whom liability has been and is still denied. ”
In sum, Foremost ’ s lack of an obligation to pay funds to Theresa and Jorge, under either a judgment or a settlement , mean t that neither of them qualified as claimants at the time Foremost filed suit

. See Owens , 996 S.W.2d at 209. Protected by the direct

- action prohibition, Foremost was
not yet subject to claims by rival claimants. “ Although rule 43 allows an insurance company that was or may become exposed to multiple liability to interplead and join claimants as defendants, ” neither Theresa nor Jorge were yet entitled to a ssert direct claim s against Foremost. See id. (emphasis in original). As in Owens , then, the prerequisites authorizing an interpleader action had not been met and Foremost lacked standing to file its interpleader action. 1 See Ohio Cas. Ins. , 244 S.W.3d at 888 ; Owens , 996 S.W.2d at 208

– 09. 

### C ONCLUSION
I would conclude that Foremost has successfully used an interpleader action not to assert its disinterest in disputed property, but rather to seek an early discharge of liability and attorney ’ s fees , which were paid directly from the $100,000 policy limits it otherwise owe d under the liability
coverage. In my view , this exploitation of the interpleader process by a liability insurer is not supported by Texas law nor does this result honor the intent of the e quitable nature of the action.
An interested party such as an insurer standing in the place of a n alleged tortfeasor is not entitled

1 Public policy also supports this determination , as it prevents “ the conflict of interest that could arise if a third

- party claimant were permitted to sue an insurer before obtaining judgment against the insured. ” Ohio Cas. Ins. , 244 S.W.3d at 888

– 89. Indeed, the Prompt Payment Act of the Texas Insurance Code, to which the majority refers, prevents any obligation to a third

- party claimant like Ruebbling by defining a “ claim ” as one belonging to an insured or policyholder , that is, a “ first party, ” and a “ claimant ” as a person making a first

- party claim. See T EX
. I NS
. C ODE A NN
. § 542.051(3), (4).9

to interpleader protection

. Cf

. Rodriguez , 547 S.W.3d at 852. Further, the a bsen ce of a real controversy between rival clai mants defeats standing and justiciability. See Owens , 996 S.W.2d at 209. Consequently, I would conclude that Foremost lacked standing to bring its interpleader and the trial court lacked subject matter jurisdiction. Because I reach that conclusion, I would further conclude the trial court did not have jurisdiction to render summary judgment on Foremost’s request for relief and it was not entitled to attorney ’ s fees. See Daniels v. Pecan Valley Ranch,
Inc. , 831 S.W.2d 372, 385 ( Tex. App.

— San Antonio 1992, writ denied) (failure to meet the requisites of bringing an interpleader action defeats a petitioner ’ s standing and precludes recovery of attorney ’ s fees in the inter pleader action)

. For all these reasons, I respectfully dissent.

GINA M. PALAFOX, Justice January 2 9 , 2024 Before Palafox and Soto, J J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) , s itting by a ssignment Palafox, J., dissenting