Supreme Court of Texas.
OLD REPUBLIC INSURANCE COMPANY, Petitioner,
Lola SCOTT, Respondent.
March 30, 1994.
Rehearing Overruled May 11, 1994.
Attorneys & Firms
*381 Lawrence J. West, Houston, for petitioner.
William A. Badders, Nacogdoches, for respondent.
In its appeal, Old Republic urges that the trial court abused its discretion when it overruled Old Republic’s equitable motion for *382 new trial because the affidavits attached to the motion established all three elements required under Craddock, and therefore reverse and remand to the court of appeals.
Lola Scott, an ARA Food Services employee, filed a claim for medical and disability coverage with Old Republic alleging she suffered an on-the-job injury. Old Republic, ARA’s workers’ compensation carrier, denied the claim and Scott sued for benefits.
On February 1, 1990, the trial court rendered a default judgment against Old Republic for failure to answer. Old Republic filed two motions for new trial, one on March 1 and another on June 8, each alleging that its failure to answer was due to a mistake, and was not intentional or the result of conscious indifference. Old Republic attached affidavits supporting these contentions and the other elements of the Old Republic Ins. Co v. Scott, 846 S.W.2d 832 (Tex.1993).
In one of the affidavits, Cherie Davis, a claims handler assigned to investigate the lost citation, avers that Old Republic transferred claim files pertaining to the ARA facility from one adjustment company, Alexsis, to another, Adjustco, around the time the Scott citation arrived. Davis states “to the best of [her] knowledge,” that Scott’s citation was inadvertently included among the transferred files and misplaced. According to Davis, Old Republic’s failure to answer was due to this mishandling.
The trial court’s decision to overrule a new trial motion is subject to review for abuse of discretion. 862 S.W.2d 639. This ruling directly conflicts with well-established law.
If the factual assertions in the defendant’s affidavits are not controverted, the defendant satisfies his or her burden if the affidavits set forth facts that, if true, negate intent or conscious indifference. Craddock standard. Old Republic satisfied its burden and introduced affidavits which set forth facts establishing that its failure to answer was mistaken or accidental, and not intentional or the result of conscious indifference.
We therefore grant Old Republic’s application and, without hearing argument, a majority of the court reverses the judgment of the court of appeals and remands this cause to the court of appeals for a determination concerning the second and third prongs of Craddock. TEX.R.APP.P. 170.