dissenting.
I agree with the majority that the cooperation clause is a condition precedent to coverage under the policy. I also agree with the majority that the cooperation clause does not violate the Texas Motor Vehicle Safety Responsibility Act. However, I disagree with the majority’s conclusion that a telephone call from the insured’s wife to Progressive supports a finding that the “lawyer hired by Progressive was simply not permitted to appear on Alvarado’s behalf in court.” Therefore, I respectfully dissent.
Progressive bore the burden of establishing it was prejudiced by Alvarado’s lack of cooperation. See Struna v. Concord Ins. Serv., 11 S.W.3d 355, 360 (Tex.App.-Houston [1st Disk] 2000, no pet.). The majority’s determination that Progressive established prejudice as a mater of law is premised on the majority’s conclusion that “the attorney hired by Progressive was simply not permitted to appear on Alvarado’s behalf in court.” Nothing in the record supports this conclusion. In her telephone message, Carol Alvarado did not request that the attorney withdraw. She asked only that Progressive deny the claim. Alvarado’s “adaman-cy” that Progressive not pay the claim is not inconsistent with the position taken by most defendants in personal injury lawsuits. Also, Progressive withdrew its representation only a few short days before the scheduled trial date, and there is no evidence in the record that Progressive suffered prejudice, up to that point in time, due to Alvarado’s desire to deny the claim. Because Progressive had withdrawn its representation of Alvarado shortly before the default judgment was rendered, it cannot now, after the fact, point to the default judgment as establishing prejudice.
For these reasons, I would affirm the trial court’s judgment.