in Re Allstate Fire and Casualty Insurance Company

ACCEPTED

FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/2/2015 4:28:10 PM
CHRISTOPHER PRINE
CLERK
01-15-00003-CV
NO. ___________________

FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS
1/2/2015 4:28:10 PM
AT HOUSTON CHRISTOPHER A. PRINE
Clerk

IN RE ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY

Original Proceeding from 434th Judicial District
Of Fort Bend County, Texas
Trial Court Cause No. 14-DCV-215228

RELATOR ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S
PETITION FOR WRIT OF MANDAMUS

Ronald J. Restrepo
Texas State Bar No. 16791300
rrestrepo@drhrlaw.com
Sarah J. Allen
Texas State Bar No. 24064810
sallen@drhrlaw.com
Alexandra Ledyard
Texas State Bar No. 24087903
aledyard@drhrlaw.com
440 Louisiana Street, Suite 2300
Houston, Texas 77002
DOYLE, RESTREPO, HARVIN & ROBBINS, L.L.P.
(713) 228-5100 (telephone)
(713) 228-6138 (facsimile)
Attorneys for Relator Allstate
Fire and Casualty Insurance
Company

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following is a
complete list of all parties, and the names and addresses of all trial and appellate
counsel:

Relator:

Allstate Fire and Casualty Insurance Company

Trial Counsel for Relator:

John M. Causey
State Bar No.0419100
Hope & Causey
100 I-45 North, Ste. 600
Conroe, Texas 77301
(936) 441-4673 (telephone)
(936) 441-4674 (telecopier)

Appellate Counsel for Relator:

Ronald J. Restrepo
Sarah J. Allen
Alexandra Ledyard
DOYLE, RESTREPO, HARVIN & ROBBINS, L.L.P.
440 Louisiana, Suite 2300
Houston, Texas 77002
(713) 228-5100 (telephone)
(713) 228-6138 (facsimile)

i
Respondents: *

The Honorable Judge James H. Shoemake
Judge of the 434th Judicial District of Fort Bend County, Texas
301 Jackson Street
Richmond, Texas 77469
(281) 633-7653 (telephone)

The Honorable Judge John Hawkins
Associate Judge of the 434th Judicial District of Fort Bend County, Texas
301 Jackson Street
Richmond, Texas 77469
(281) 341-4457 (telephone)

Real Parties in Interest:

Charlene T. Howard and William D. Howard

Trial Counsel for Real Party in Interest:

Mario Martinez
Law Offices of Mario A. Martinez
23123 Cinco Ranch Blvd., # 208
Katy, TX 77494
(281) 665-7924 (telephone)
(281) 665-7929 (telecopier)

*
Relator includes both Judge James H. Shoemake and Judge John Hawkins as Respondents
because both signed the Order at issue in this mandamus proceeding. (See MR 44–45.)

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...........................................................................i

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES...............................................................................................v
STATEMENT OF THE CASE ........................................................................................ vii
STATEMENT OF JURISDICTION ................................................................................. viii
ISSUE PRESENTED.......................................................................................................ix
STATEMENT OF FACTS.................................................................................................1
ARGUMENT .................................................................................................................2

I. Standard of Review ............................................................................... 2
II. Mandamus relief is warranted in this case. ........................................... 2
A. The trial court abused its discretion when it refused to
abate discovery on Plaintiffs’ extra-contractual and bad
faith claims because these claims do not accrue, and
would therefore be moot, unless and until Plaintiffs
first succeed on their breach of contract claim. .......................... 3

1. Because Plaintiffs have not obtained a judgment
establishing the liability and underinsured status
of Mr. Carr, the other driver, Allstate has no
contractual duty to pay UIM benefits. .............................. 3
2. Allowing discovery on Plaintiffs’ extra-
contractual claims before a determination on
Plaintiffs’ breach-of-contract claims is an abuse
of discretion. ..................................................................... 5
B. Allstate has no clear and adequate remedy by appeal
because it will lose substantial rights by being required
to conduct discovery on claims that may be rendered
moot...........................................................................................10

iii
PRAYER .....................................................................................................................11

CERTIFICATES OF COMPLIANCE.................................................................................13

CERTIFICATE OF SERVICE ..........................................................................................14

APPENDIX
October 23, 2014 Order Allowing Discovery on Plaintiffs’
Extra-Contractual Claims ........................................................................Tab A

In re United Fire Lloyds, 327 S.W.3d 250 (Tex. App.—San Antonio
2010, orig. proceeding). .............................................................. Tab B

In re Progressive County Mut. Ins. Co., 439 S.W.3d 422
(Tex. App.—Houston [1st Dist.] 2014, no pet.). ......................... Tab C

In re Allstate County Mut. Ins. Co., No. 01-14-00068-CV,
2014 WL 5285850 (Tex. App.—Houston [1st Dist.]
Oct. 16, 2014, no pet. h.) . ..........................................................Tab D

iv
 INDEX OF AUTHORITIES

Cases Page(s)

Brainard v. Trinity Universal Ins. Co.,
216 S.W.3d 809 (Tex. 2006). ......................................................................3–4

Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,
327 S.W.3d 118 (Tex. 2010). .......................................................................... 4

Henson v. State Farm Bureau Cas. Ins. Co.,
17 S.W.3d 652 (Tex. 2000). ............................................................................ 3

In re Allstate County Mut. Ins. Co.,
No. 01-14-00068-cv, 2014 WL 5285850
(Tex. App.—Houston [1st Dist.] Oct. 16, 2014, no pet. h.) . ............ 4, 9–10, 11

In re Am. Nat’l County Mut. Ins. Co.,
384 S.W.3d 429 (Tex. App.—Austin 2012, orig. proceeding). ....................11

In re Progressive County Mut. Ins. Co.,
439 S.W.3d 422 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ..... 4–7, 9–11

In re Prudential Ins. Co. of Am.,
148 S.W.3d 124 (Tex. 2004) (orig. proceeding). ..................................2–3, 11

In re United Fire Lloyds,
327 S.W.3d 250 (Tex. App.—San Antonio 2010,
orig. proceeding). ................................................................... viii, 2, 7–8, 9, 11

Progressive County Mut. Ins. Co. v. Boyd,
177 S.W.3d 919 (Tex. 2005). .......................................................................... 5

U.S. Fire Ins. Co. v. Millard,
847 S.W.2d 668 (Tex. App.—Houston [1st Dist.] 1993, no writ). ................. 3

Weir v. Twin City Fire Ins. Co.,
622 F. Supp. 2d 483 (S.D. Tex. 2009).........................................................5–6

v
Womack v. Berry,
291 S.W.2d 677 (Tex. 1956). .......................................................................... 7

Statutes Page(s)

TEX. GOV’T CODE § 22.221.................................................................................... viii

Rules Page(s)

TEX. R. APP. P. 52. ................................................................................................. viii

vi
 STATEMENT OF THE CASE

Nature of the This original proceeding arises from a lawsuit filed by
underlying case: Real Parties in Interest Charlene T. Howard and
William D. Howard (“Plaintiffs”) against Relator
Allstate Fire and Casualty Insurance Company
(“Allstate”), among others. (MR 1–14). Plaintiffs seek
the recovery of underinsured motorist benefits under an
automobile policy issued by Allstate to Plaintiffs, as
well as damages for Allstate’s asserted bad faith and
statutory violations related to the handling of Plaintiffs’
claims. (MR 3–6).

Respondents: The Honorable John Hawkins, Associate Judge of the
434th Judicial District of Fort Bend County, Texas, and
The Honorable James Shoemake, Judge of the 434th
Judicial District of Fort Bend County, Texas

Respondents’ actions Plaintiffs filed suit in the underlying case alleging that
from which relief Allstate breached the underinsured motorist provisions
sought: of its policy to Plaintiffs when Allstate denied full
payment of their claim and, in doing so, committed bad
faith and violated various statutory provisions. (MR 7–
10). Allstate moved to sever and abate the bad faith and
extra-contractual claims until the preliminary issue of
coverage is resolved. (MR 22–31). The trial court
granted Allstate’s motion except that it allowed
discovery on Plaintiffs’ extra-contractual claims to
continue. (MR 44–46).

Order at issue: The trial court’s October 23, 2014 order allowing
discovery on Plaintiffs’ extra-contractual and bad faith
claims (MR 44–46; see also App. at Tab A).

vii
 STATEMENT OF JURISDICTION

This Court possesses jurisdiction to grant mandamus relief from the trial

court’s order allowing discovery on Plaintiffs’ bad faith and extra-contractual claims

before the preliminary issue of coverage is resolved because it constitutes a clear

abuse of discretion that impacts Allstate’s right to avoid the cost and expense of

preparing to defend claims that may be rendered moot for which no adequate remedy

exists by ordinary appeal. See TEX. GOV’T CODE § 22.221; TEX. R. APP. P. 52; In re

Progressive County Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.—Houston [1st

Dist.] 2014, no pet.) (holding that insurer had no adequate remedy by appeal where

trial court’s order allowing discovery on extra-contractual claims in an uninsured

motorist lawsuit would cause insurer to “lose substantial rights by being required to

prepare for claims that may be rendered moot and never even accrue”); In re United

Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.—San Antonio 2010, orig. proceeding)

(holding that insurer did not have adequate remedy by appeal where it would “lose

substantial rights by being required to prepare for claims that may be rendered moot

and may have not even yet accrued”).

viii
 ISSUES PRESENTED

1. Whether the trial court’s refusal to abate discovery on Plaintiffs’ bad

faith and extra-contractual claims until the preliminary issue of coverage is resolved

is an abuse of discretion that warrants mandamus relief because Plaintiffs’ extra-

contractual and bad faith claims do not accrue, and would therefore be moot, unless

and until Plaintiffs first succeed on their breach of contract claim.

2. Whether Allstate has an adequate remedy by ordinary appeal where

Allstate will lose substantial rights by being required to conduct discovery on claims

that may be rendered moot.

ix
 STATEMENT OF FACTS

On or about August 11, 2011, Real Parties in Interest Charlene T. Howard and

William D. Howard (“Plaintiffs”) were involved in an automobile accident with

another vehicle driven by James Alexander Carr. 1 As a result of that accident,

Plaintiffs submitted claims to Allstate Fire and Casualty Insurance Company

(“Allstate”) for underinsured motorist (“UIM”) coverage. 2 After evaluating the

claims, Allstate made an offer to settle the Plaintiffs’ claims, 3 however, the Plaintiffs

did not accept. 4

On or about June 5, 2014, Plaintiffs filed suit in the underlying case seeking

a declaration of coverage and the recovery of UIM benefits under an automobile

policy issued by Allstate to Plaintiffs (the “Policy”), as well as damages for

Allstate’s asserted bad faith and statutory violations related to the offering of those

benefits. 5 On August 11, 1014, Allstate filed a motion to sever and abate the

Plaintiffs’ extra-contractual and bad faith claims pending trial on the contractual

claim (the “Motion”).6 Plaintiffs responded to the Motion on October 5, 2014, 7 and

1
MR 3, ¶ 11.
2
Id. at ¶ 14.
3
See MR 22–23, Ex. 1.
4
See id., Ex. 2–3; see also MR 5.
5
MR 1–14.
6
MR 22–31.
7
MR 35–39.

1
the trial court signed an order on October 23, 2014 conditionally granting the Motion

save and except discovery. 8

ARGUMENT

I. Standard of Review

Mandamus will issue to correct a clear abuse of discretion for which the

relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135–36 (Tex. 2004, orig. proceeding). A trial court has no discretion in

determining what the law is or in applying the law to the facts, and a clear failure by

the trial court to analyze or apply the law correctly constitutes an abuse of discretion.

In re United Fire Lloyds, 327 S.W.3d 250, 253 (Tex. App.—San Antonio 2010, orig.

proceeding). Mandamus relief is justified when parties stand to lose substantial

rights. Id. Mandamus relief is also appropriate to “spare private parties and the

public the time and money utterly wasted enduring eventual reversal of improperly

conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.

II. Mandamus relief is warranted in this case.

Mandamus relief is warranted in this case because the record establishes that

(A) the trial court abused its discretion when it refused to abate discovery on

Plaintiffs’ extra-contractual and bad faith claims until the preliminary issue of

8
MR 44–46.

2
coverage is resolved, and (B) Allstate has no clear and adequate remedy at law. See

id. at 135–36.

A. The trial court abused its discretion when it refused to abate
discovery on Plaintiffs’ extra-contractual and bad faith claims
because these claims do not accrue, and would therefore be moot,
unless and until Plaintiffs first succeed on their breach of contract
claim.

1. Because Plaintiffs have not obtained a judgment establishing
the liability and underinsured status of Mr. Carr, the other
driver, Allstate has no contractual duty to pay UIM benefits.

Underinsured motorist claims and bad faith claims are by their very nature

independent, and Texas courts have recognized them as “separate and distinct causes

of action which might each constitute a complete lawsuit within itself.” See U.S.

Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672 (Tex. App.—Houston [1st Dist.] 1993,

orig. proceeding). In the context of underinsured motorist claims, “the [UIM]

insurer is under no contractual duty to pay benefits until the insured obtains a

judgment establishing the liability and underinsured status of the other motorist.”

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006) (citing

Henson v. State Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 653–54 (Tex. 2000)).

In Brainard, the Texas Supreme Court explained the unique nature of a UIM case as

follows:

The UIM contract is unique because, according to its
terms, benefits are conditioned upon the insured’s legal
entitlement to receive damages from a third party. Unlike
many first-party insurance contracts, in which the policy

3
 alone dictates coverage, UIM insurance utilizes tort law to
determine coverage. Consequently, the insurer’s
contractual obligation to pay benefits does not arise until
liability and damages are determined.

Brainard, 216 S.W.3d at 818. As a result, Plaintiffs must succeed on their breach of

contract claim before any extra-contractual claims could even accrue.

To succeed on their breach of contract claim, Plaintiffs must first establish

that UIM coverage for their injuries existed at the time of the accident. See Gilbert

Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex.

2010) (“Initially, the insured has the burden of establishing coverage under the terms

of the policy.”); In re Allstate County Mut. Ins. Co., No. 01-14-00068-CV, 2014 WL

5285850, at *4 (Tex. App.—Houston [1st Dist.] Oct. 16, 2014, no pet. h.) (providing

that in order “[t]o prevail on these [extra-contractual] claims, the [plaintiffs] must

first establish that Allstate is liable under the insurance contract”).

If they meet this initial burden, Plaintiffs must then establish that the other

driver, Mr. Carr, negligently caused the accident and was underinsured. In re

Progressive County Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.—Houston [1st

Dist.] 2014, no pet.). “Neither requesting UIM benefits nor filing suit against the

insurer triggers a contractual duty to pay.” Id. Accordingly, unless and until

Plaintiffs obtain a judgment not only establishing that the Policy provided UIM

coverage, but also establishing the liability and underinsured status of Mr. Carr,

Allstate has no contractual obligation to pay UIM benefits to Plaintiffs.

4
 2. Allowing discovery on Plaintiffs’ extra-contractual claims
before a determination on Plaintiffs’ breach of contract
claims is an abuse of discretion.

Absent proof of a valid contract claim, Allstate should not be required to

provide discovery related to Plaintiffs’ extra-contractual and bad faith claims

because it is irrelevant, overly broad, and prejudicial. See In Progressive, 439

S.W.3d at 427 (finding severance and abatement of extra-contractual claims was

necessary to avoid prejudice because document requests relating to extra-contractual

claim were irrelevant to breach of contract claim and far broader than car accident

claim that must first be resolved). As already stated, in order to prevail on their

extra-contractual and bad faith claims, Plaintiffs must first demonstrate that Allstate

was contractually obligated to pay their UIM claim. See Progressive County Mut.

Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005) (recognizing bad faith claims are

generally negated by a lack of coverage under the insurance policy). Thus, unless

Plaintiffs can establish that Allstate breached the Policy by denying full payment of

Plaintiffs’ UIM claims, Allstate cannot be liable on Plaintiffs’ extra-contractual and

bad faith claims based on that denial, and all the time, effort, money, and judicial

resources spent conducting discovery on those claims will have been for naught. See

Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483, 486 (S.D. Tex. 2009) (Harmon,

J.) (“If there is no contractual duty to pay, [the insurer] cannot be in ‘bad faith,’ under

common law or statute, for not paying. [The insurer] cannot be guilty of not

5
performing a proper investigation of his UIM claim because it is the trial of the UIM

claim, at which it will be determined who was at fault and the amount of damages,

that constitutes the investigation.”). It is for this reason that several courts of appeals,

including recent opinions from this Court, require the severance and abatement of

extra-contractual claims, including discovery on such claims, in UIM coverage cases

like this one.

In a recent opinion, this Court specifically addressed the prejudice involved

in allowing discovery on extra-contractual claims to continue prior to a

determination on an uninsured motorist breach of contract claim. See In re

Progressive County Mut. Ins. Co., 439 S.W.3d 422 (Tex. App.—Houston [1st Dist.]

2014, no pet.); see also App. at Tab C. In Progressive, an insured filed suit for

uninsured motorist benefits under her insurance policy, as well as damages for bad

faith and statutory violations related to the denial of those benefits. Id. at 422. The

insured served the carrier with a number of discovery requests, including all

documents related to lawsuits and claims against the carrier regarding the denial of

uninsured/underinsured motorist claims for over ten years. Id. at 427.

In response to the insurer’s motion to sever the breach of contract claim from

the extra-contractual claims, the trial court judge signed an order abating the motion

to sever, allowing discovery to move forward on all claims, and deferring the other

issues covered by the motion until the pretrial hearing. Id. at 424. In concluding

6
that severance and abatement of the extra-contractual claims was required in order

to avoid prejudice on behalf of the insurer, this Court held that the aforementioned

discovery requests sought documents “irrelevant to the breach-of-contract claim, and

the introduction of Progressive’s claims handling history in unrelated accidents at

the trial of [Plaintiff’s] breach-of-contract claim would be manifestly unjust.” Id. at

427. (citing Womack v. Berry, 291 S.W.2d 677, 682–83 (Tex. 1956)). The Court

went on:

The trial court’s abatement of any decision on severance
until the eve of trial requires the parties to engage in
discovery on the extra-contractual claims and prepare
for a trial on these claims, even though extra-contractual
liability could only accrue if Progressive is found liable
on the contract. Accordingly, the trial court’s decision to
postpone severance, unless writ is granted, will require
Progressive to expend resources answering discovery that
is far broader than the car accident claim that must be
resolved.

Id. at 427 (emphases added). Similarly, the trial court’s order—made the subject of

this mandamus—allowing discovery on Plaintiffs’ extra-contractual claims to go

forward subjects Allstate to irrelevant, overly broad, and prejudicial discovery.

Other recent opinions confirm that the trial court’s refusal to abate discovery

on Plaintiffs’ extra-contractual claims is an abuse of discretion. In In re United Fire

Lloyds, the insured filed suit for UIM benefits under his employer’s insurance policy

as well as damages for bad faith and statutory violations related to the denial of those

benefits. 327 S.W.3d 250, 252 (Tex. App.—San Antonio 2010, orig. proceeding);

7
see also App. at Tab B. After the insurer moved to sever and abate the extra-

contractual and bad faith claims, the insured filed a motion to bifurcate these claims

as an alternative to severance and abatement, arguing, like Plaintiffs argue here,9 that

“a severance would be judicially wasteful” and “prejudice him.” Id. at 253. In

reviewing the trial court’s decision to bifurcate, the San Antonio Court of Appeals

discussed the unique nature of a UIM claim in that a UIM insurer “has no contractual

duty to pay benefits until the insured obtains a judgment establishing the liability

and underinsured status of the other motorist.” Id. at 255. “As a result,” the court

continued, “a determination of [the insured’s] UIM claim may negate his bad faith

claims.” Id. at 256. Thus, the court held, the trial court had abused its discretion

when it refused to sever and abate the insured’s extra-contractual and bad faith

claims because an insurer should not be required to prepare to litigate claims that

could be rendered moot by a determination on the UIM claim:

[W]e are constrained by the clear holding in Brainard, and
hold that [the insurer] is under no contractual duty to pay
UIM benefits until [the insured] establishes the liability
and underinsured status of the other motorist. Therefore,
[the insurer] should not be required to put forth the
effort and expense of conducting discovery, preparing
for trial, and conducting voir dire on bad faith claims that
could be rendered moot by the portion of the trial relating
to UIM benefits. To require such would not do justice,
avoid prejudice, and further convenience. Under these
circumstances, we conclude the trial court abused its

9
See MR 38.

8
 discretion in bifurcating the case instead of severing and
abating the UIM claim from the bad faith claims.

Id. (internal citations omitted) (emphases added).

Similarly, this Court reached the same result in In re Allstate County Mutual

Ins. Co., No. 01-14-00068-CV, 2014 WL 5285850 (Tex. App.—Houston [1st Dist.]

Oct. 16, 2014, no pet. h.); see also App. at Tab D. In that case, the insureds filed

suit for UIM benefits under their insurance policy, as well as damages for bad faith

and statutory violations related to the denial of those benefits. Id. at *2. The insurer

moved to sever and abate the extra-contractual and bad faith claims from the

underlying coverage claim. In reviewing the trial court’s denial of the insurer’s

motion, the Court held that the severance of the settlement claims was mandatory.

Id. at *3. In doing so, the Court explained that the plaintiffs’ settlement claims

would be negated by a determination that they lacked
coverage under the insurance contract, requiring Allstate
to prepare for and litigate the . . . claims, which may have
not yet accrued and may be rendered moot by the breach
of contract claim, would not do justice, avoid prejudice, or
further convenience.

Id. at *5 (citing In re Progressive County Mut. Ins. Co., 439 S.W.3d at 426–28). The

Court went on to provide that “allowing the [insureds] to conduct broad discovery

into Allstate’s claims handling history regarding unrelated accidents and then

allowing the introduction of such information at the trial of the [their] breach of

9
contract claim would be manifestly unjust.” Id. at *5 (citing In re Progressive

County Mut. Ins. Co., 439 S.W.3d at 426–27) (emphasis added).

As in Progressive, Allstate, and United Fire, the trial court’s order denying

abatement of discovery on extra-contractual claims is an abuse of discretion because

it does “not do justice, avoid prejudice, or further convenience.” See In re Allstate

County Mut. Ins. Co., 2014 WL 5285850, at *5. Here, Allstate made an offer of

settlement on Plaintiffs’ claims for UIM benefits, which was not accepted.10 Thus,

consistent with Brainard and its progeny, unless and until Plaintiffs obtain a

judgment establishing UIM coverage, as well as the liability and underinsured status

of Mr. Carr, Allstate has no contractual obligation to pay UIM benefits. Without an

existing obligation to pay, Allstate should not be required to put forth the effort and

expense of conducting discovery on Plaintiffs’ bad faith and extra-contractual claims

because these claims have not yet accrued and could be rendered moot by the failure

of Plaintiffs’ breach of contract claim. Allowing Plaintiffs to conduct discovery on

their bad faith and extra-contractual claims will require Allstate “to expend resources

answering discovery that is far broader than the car accident claim that must be

resolved.” See In re Progressive County Mut. Ins. Co., 439 S.W.3d at 427. Thus,

the trial court’s refusal to abate discovery on these claims was an abuse of discretion

10
See MR 22–23, Ex. 1–3; see also MR 5.

10
warranting mandamus relief. See In re Allstate County Mut. Ins. Co., 2014 WL

5285850, at *5; In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.

B. Allstate has no clear and adequate remedy by appeal because it will
lose substantial rights by being required to conduct discovery on
claims that may be rendered moot.

Allstate has a substantial right not to be required to put forth the expense of

conducting discovery on bad faith and extra-contractual claims that do not accrue,

and would therefore be moot, unless and until Plaintiffs first succeed on their breach

of contract claim. See, e.g., In re Progressive County Mut. Ins. Co., 439 S.W.3d at

428 (citing In re United Fire Lloyds, 327 S.W.3d at 256). If discovery on Plaintiffs’

extra-contractual claims is permitted to advance, Allstate will be required to conduct

discovery “on claims that may have not yet accrued and that could be rendered moot

by . . . the trial relating to breach of contract for underinsured motorist benefits.” See

In re Allstate County Mut. Ins. Co., 2014 WL 5285850, at *6 (citing In re

Progressive, 439 S.W.3d at 427–28); see also In re Am. Nat’l County Mut. Ins. Co.,

384 S.W.3d 429, 439 (Tex. App.—Austin 2012, orig. proceeding) (holding that

insurer did not have adequate remedy by appeal where it would “lose substantial

rights . . . by being required to prepare and try claims that may be rendered moot”).

Accordingly, the Court should conclude that Allstate has no adequate remedy by

appeal, and mandamus relief is warranted. Id. (citing In re Progressive County Mut.

Ins. Co., 439 S.W.3d at 427–28).

11
 PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator Allstate Fire and

Casualty Insurance Company respectfully prays that this Court direct the trial court

to amend its October 23, 2014 order to abate discovery on Plaintiffs’ extra-

contractual and bad faith claims until there has been a full and final resolution of

Plaintiffs’ breach of contract claims. Allstate also prays and for such other and

further relief to which Allstate may be entitled.

Respectfully submitted,

DOYLE, RESTREPO, HARVIN & ROBBINS, L.L.P.

By: ________________________________
Ronald J. Restrepo
Texas State Bar No. 16791300
rrestrepo@drhrlaw.com
Sarah J. Allen
Texas State Bar No. 24064810
sallen@drhrlaw.com
Alexandra Ledyard
Texas State Bar No. 24087903
aledyard@drhrlaw.com

440 Louisiana Street, Suite 2300
Houston, Texas 77002
(713) 228-5100 (telephone)
(713) 228-6138 (facsimile)

Attorneys for Relator Allstate
Fire and Casualty Insurance Company

12
 CERTIFICATION

I hereby certify that I have reviewed Relator Allstate Fire and Casualty
Insurance Company’s Petition for Writ of Mandamus and conclude that every
factual statement in this petition is supported by competent evidence included in the
appendix or record.

____________________________________
Sarah J. Allen

CERTIFICATE OF COMPLIANCE

Relying on the word count function in the word processing software used to
produce this document, I hereby certify that this petition (excluding the caption,
identity of parties and counsel, table of contents, index of authorities, statement of
the case, statement of jurisdiction, statement of issues presented, signature,
certificate of service, certification, certification of compliance, and appendix)
contains 2,815 words. See TEX. R. APP. P. 9.4(i).

____________________________________
Sarah J. Allen

13
 CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e),
I certify that I have served this document and the corresponding mandamus record
by electronic service or certified mail, return receipt requested, on all parties as listed
below on January 2, 2015 as follows:

The Honorable Judge James H. Shoemake
434th Judicial District of Fort Bend County, Texas
301 Jackson Street
Richmond, Texas 77469

The Honorable Judge John Hawkins
434th Judicial District of Fort Bend County, Texas
301 Jackson Street
Richmond, Texas 77469

Mario Martinez
Law Offices of Mario A. Martinez
23123 Cinco Ranch Blvd., # 208
Katy, Texas 77494
Attorney for the Real Parties in Interest
Charlene Howard and William Howard

John M. Causey
Hope & Causey
100 I-45 North, Ste. 600
Conroe, Texas 77301
Trial Counsel for Relator
Allstate Fire and Casualty Insurance Company

____________________________________
Sarah J. Allen

14
TAB A
·' 1'-DCV-215228
OTDN
; Olher Dlspotitlon/Non-Fiml
. 32699'8
FILED
AUG 1 l .2Q1~ ri
I~I I~llllllllHllllll~llll~ NO. 14-0CV-215228
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Cte~ Olllrlct Co'-Jrt. Fer1°'1rnd Ct., TX

CHARLENE T. HOW ARD AND § IN THE DISTRICT COURT OF
WILLIAM D. HOWARD §
§
VS. § FORT BEND COUNTY, TEXAS
§
ALLSTATE FIRE & CASUALTY §
INSURANCE COMPANY AND LISA § 434TH JUDICIAL DISTRICT
GRAVES

ORDER GRANTING DEFENDANTS'
MOTION TO SEVER AND ABATE

On this day came on for consideration Defendants' Motion to Sever and Abate. The Court,

having considered the motion, the prevailing case law, and the response thereto, is of the opinion that

said motion is meritorious. The Court, therefore

ORDERS that all of the Plaintiff.~ · claims for extra-contractual violations, including those of

the Texas Deceptive Trade Practices /\ct, violations of the fnsurance Code, violntions of Chapter 37

& 38 of the Texas Civil Practice and Remedies Code, gross neglect and breach of the duty of good

faith and fair dealing, arc hereby severed from the above captioned lawsuit and shall be re-designated

as CAUSE NO. f'f:pc\J 2J£'.)m~i1 ii¥ Q1 S??B,· IN THE DISTRICT COURT OF FORT ·
BEND COUNTY, TEX A S 434TJ/ JUDICIAL DfTRJCT;
AC~o
is further ORDERED that !he"'following documents shall be placed in CAUSE NO.
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