The panel concluded that the trial court had not abused its discretion when it refused to enforce a forum selection clause requiring litigation arising out of the policy to take place in New York even though the insurer had filed its motion to dismiss within six weeks of the lawsuit, because the insurer failed to obtain a hearing on the motion for some ten months and there was no evidence in the record establishing that the delay was due to court congestion rather than the insurer's lack of diligence and the insured had presented evidence that in the interim, it had conducted discovery based on its understanding that the claims would be resolved in Texas under Texas law and thus, had established that the insurer's delay in seeking a ruling had prejudied the insured.
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