in Re: AAA Texas County Mutual Insurance Company

ACCEPTED 12-15-00277-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 11/16/2015 5:51:19 PM Pam Estes CLERK Case Number 12-15-___________-CV IN THE TWELFTH DISTRICT COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS at Tyler 11/16/2015 5:51:19 PM PAM ESTES __________________________________________________________________ Clerk In Re AAA Texas County Mutual Insurance Company, Relator. __________________________________________________________________ Original Proceeding from Cause Number 2014-1365-A pending in the 188th Judicial District Court of Gregg County __________________________________________________________________ RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S PETITION FOR WRIT OF MANDAMUS __________________________________________________________________ WALTERS, BALIDO & CRAIN, L.L.P. Gregory R. Ave State Bar Number 01448900 greg.ave@wbclawfirm.com Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Telephone Number (214) 347-8310 Facsimile Number (214) 347-8311 ATTORNEYS FOR RELATOR AAA TEXAS COUNTY MUTUAL November 16, 2015 INSURANCE COMPANY  LIST OF PARTIES AND THEIR 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: 1. Relator: AAA Texas County Mutual Insurance Company 2. Trial Counsel for Relator: Carlos Balido State Bar No.: 01631230 Walters Balido & Crain, L.L.P. Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Telephone: 214-749-4805 Facsimile: 214-760-1670 Email: carlos.balido@wbclawfirm.com 3. Appellate Counsel for Relator: Gregory R. Ave State Bar No.: 01448900 Greg.ave@wbclawfirm.com Jay R. Harris State Bar No.: 00793907 Walters, Balido & Crain, L.L.P. Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231; and i 4. Respondent: The Honorable Judge David Brabham Judge of the 188th Judicial District Court of Gregg County, Texas Gregg County Courthouse 101 East Methvin, Suite 408 Longview, Texas 75601 Telephone (903) 237-2588 Facsimile (903) 236-8603 5. Real Party in Interest: Thomas Jackson 6. Trial Counsel for Real Party in Interest: Justin A. Smith Glenn A. Perry Sloan, Bagley, Hatcher & Perry Law Firm 101 East Whaley Street Longview, Texas 75601 Telephone (903) 757-7000 Facsimile (903) 757-7574 ii  TABLE OF CONTENTS IDENTITY OF PARTIES & COUNSEL .............................................................................i TABLE OF CONTENTS............................................................................................... iii INDEX OF AUTHORITIES ........................................................................................... v STATEMENT OF THE CASE ..................................................................................... viii STATEMENT OF JURISDICTION ................................................................................. ix ISSUES PRESENTED .....................................................................................................x STATEMENT OF FACTS ............................................................................................... 1 ARGUMENT & AUTHORITIES ................................................................................... 21 I. Standard of Review .................................................................................... 21 II. Mandamus Relief Is Warranted In This Case ......................................... 22 A. The Trial Court Abused Its Discretion in Refusing To Abate Discovery on Jackson’s Extra-Contractual Claims Because These Claims Are Not Ripe, Have Not Accrued, and Will Likely Be Rendered Moot, Unless and Until Jackson Has Obtained a Final Adjudication of Tortfeasor Tompkin’s Liability and Damages for which AAA Owes UIM Benefits, But Then Refuses to Pay. .................................................................... 22 1. Because Jackson has not obtained a final judgment establishing the liability of, and damages caused by, Tompkins, AAA has no contractual duty to pay UIM benefits ........................................................................... 22 iii  2. Allowing discovery on Jackson’s extra-contractual claims before a determination on Jackson’s UIM claim is an abuse of discretion. ........................................... 25 B. AAA Has No Clear and Adequate Remedy By Appeal Because It Will Lose Substantial Rights By Being Required To Conduct Discovery on Claims Which Have Not Accrued and May Be Rendered Moot.. .................................................................................. 40 PRAYER ..................................................................................................................... 41 CERTIFICATE OF COMPLIANCE ................................................................................ 43 CERTIFICATE OF SERVICE ........................................................................................ 44 APPENDIX ................................................................................................................. 45 iv  INDEX OF AUTHORITIES Cases In re Allstate County Mut. Ins. Co., 447 S.W.3d 497 (Tex. App.–Houston [1st Dist.] 2014) ................. 24, 38, 39, 40 In re Allstate Indem. Co., 2003 Tex. App. LEXIS 9245 (Tex. App.–Dallas October 30, 2003)............ ix, 39 In re Allstate Ins. Co., 232 S.W.3d 340 (Tex. App.—Tyler 2007) ...................... 30 In re Am. Nat’l County Mut. Ins. Co., 384 S.W.3d 429 (Tex. App.–Austin 2012) ........................................................... 40 Blackstone v. Thalman, 949 S.W.2d 470 (Tex. App.—Houston [14th Dist.] 1997, no writ) .................... 3 Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) ............passim F. A. Richard & Assocs. v. Millard, 856 S.W.2d 765 (Tex. App.–Houston [1st Dist.] 1993) ..................................... 37 Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ........................ 3 Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010) ................................................................................... 24 Legal Sec. Life Ins. Co. v. Ward, 373 S.W.2d 693 (Tex. Civ. App.—Austin 1963, no writ).................................... 3 Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627 (Tex. 1996)........ ix, 32, 33, 38 Mid-Century Ins. Co. v. Lerner, 901 S.W.2d 749 (Tex. App.–Houston [14th Dist.] 1995) ................................... 37 v In re Miller, 202 S.W.3d 922 (Tex. App.--Tyler 2006) ........................................ 32 Northwestern Nat’l Lloyds Ins. Co. v. Caldwell, 862 S.W.2d 44 (Tex. App.–Houston [14th Dist.]1993) ...................................... 37 In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ..............passim Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919 (Tex. 2005)............. 25 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .......................21, 39 In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229 (Tex. App.—El Paso 2012, no pet.) .......................................... 33 State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260 (Tex. App.--Houston [14th Dist.] 1992) ............................33, 37 Texas Farm Bureau Underwriters v. Skeen, 374 S.W.3d 651 (Tex. App.—Tyler 2012, no pet.) .......................................26, 27 Thurmond v. Wieser, 699 S.W.2d 680 (Tex. App—Waco 1985, no writ) ........... 3 In re Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex. App.–Amarillo 2001) .... 32 In re United Fire Lloyds, 327 S.W.3d 250 (Tex. App.–San Antonio 2010) ..................................... ix, 21, 35 U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668 (Tex. App.--Houston [1st Dist.] 1993) ......................... 22-23, 37 Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483 (S.D. Tex. 2009) (Harmon, J.) ............................................ 26 Womack v. Berry, 291 S.W.2d 677 (1956) ............................................................. 34 vi  OTHER AUTHORITIES RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981)............................................. 3 RESTATEMENT (SECOND) OF CONTRACTS § 39(2) ................................................... 3 TEX. GOV’T CODE ANN. § 22.221 ........................................................................... ix Texas Insurance Code §§ 541.060(a)(2)(A), 542.056, 542.057, and 542.058 ..... 7 Texas Rule of Appellate Procedure 52 ............................................................... ix Texas Rule of Appellate Procedure 52.3(a) ..........................................................i Texas Rules of Civil Procedure 194.2(d) and 192.3(a) ..................................... 17 Texas Rules of Evidence 408 ................................................................................ 33 vii  STATEMENT OF THE CASE Nature Of The Underlying Case: This original proceeding arises from a lawsuit filed by Plaintiff and Real Party in Interest Thomas Jackson (“Jackson”) arising from a motor vehicle accident. [MR 6-8.] Jackson brought suit against AAA to recover underinsured motorist (“UIM”) benefits based on a motor vehicle accident involving Jackson and Patricia Tompkins (“Tompkins”) on June 12, 2013. [Id.] In his second amended petition, Jackson continues to seek to recover UIM benefits, two purported breach of contract claims, as well as damages for AAA’s alleged bad faith and statutory violations related to settlement negotiations and an offer of settlement made by AAA to Jackson to resolve his UIM claims (and subsequent lawsuit). [MR 8-14.] Respondent: The Honorable David Brabham, Judge of the 188th Judicial District Court of Gregg County, Texas. Respondent’s Actions from Which Relief Sought: AAA moved to sever and abate Jackson’s breach of contract claims, his bad faith and other extra-contractual claims until the preliminary issue of tort liability and damages are resolved. [MR 66.] The trial court denied in its entirety AAA’s motion to sever and abate and instead, ordered AAA to respond to discovery requests which solely pertain to Jackson’s extra- contractual claims and which do not go to the only issues ripe for determination: (1) the tort liability of Tompkins; (2) the amount of Jackson’s actual damages because of the June 12, 2013 accident; and the underinsured status of Tompkins. [MR 135-37; 138.] Orders at Issue: The trial court’s order of November 6, 2015 denying AAA’s motion to sever and abate [MR 138; see also App. At Tab A] and the November 6, 2015 order compelling AAA to respond to the discovery requests propounded viii by Jackson [MR 135-37; see also App. at Tab B]. STATEMENT OF JURISDICTION This Court possesses jurisdiction to grant mandamus relief from the trial court’s order denying AAA’s request to sever and abate the extra- contractual claims and the trial court’s order compelling AAA to respond to Jackson’s discovery requests pertaining to his bad faith and extra- contractual claims before the threshold issues of Tompkins’ purported negligence is judicially determined, before the amount of Jackson’s actual damages are legally established, and before the underinsured status of Tompkins is judicially resolved because same constitutes a clear abuse of discretion which impacts AAA’s right to protect its claim file and avoid the expense of defending itself against claims which are not ripe, have not accrued, and will likely be rendered moot, and for which no adequate remedy exists by ordinary appeal. See TEX. GOV’T CODE ANN. § 22.221; TEX. R. APP. P. 52.1 1 Liberty National Fire Ins. Co. v. Akin, 927 S.W.2d 627, 628 (Tex. 1996) (sever and abate of extra-contractual claims from UM claim required where settlement offer has been made on the disputed UM claim); In re Allstate Indem. Co., 2003 Tex. App. LEXIS 9245 (Tex. App.–Dallas October 30, 2003, orig. proceeding) (trial court abused its discretion when it failed to both sever and abate plaintiff’s extra-contractual claims in UM case); In re Progressive County Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.–Houston [1st Dist.] 2014, orig. proceeding) (insurer had no adequate remedy by appeal where trial court permitted discovery on extra-contractual claims in UM action because insurer would “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) (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”). ix  ISSUES PRESENTED 1. Whether the trial court’s refusal to sever and abate Jackson’s extra-contractual claims and refusal to abate discovery on Jackson’s extra-contractual claims until the conditions precedent (i.e., the judicial determination as to the liability or fault of Tompkins in causing the accident with Jackson, the amount of his actual damages, and a determination whether Tompkins is underinsured) as to whether to asserting a valid UIM claim are satisfied is an abuse of discretion which warrants mandamus relief because Jackson’s extra-contractual claims are not ripe, have not accrued, and will likely be rendered moot, absent (1) a final adjudication of Tompkins’ liability, (2) Jackson’s actual damages, (3) Tompkins underinsured status, and (4) only then when coupled with a refusal by AAA to pay UIM benefits based on the judicial determinations of (1)- (3), supra. 2. Whether AAA has an adequate remedy by ordinary appeal where AAA will lose substantial rights by being required to conduct discovery on claims which are not ripe, have not accrued, and will likely be rendered moot. x  STATEMENT OF FACTS On or about June 12, 2013, Jackson was involved in an automobile accident with another vehicle driven by Tompkins (the “accident”). [MR 7.] After the accident, Jackson submitted claims to AAA for personal injury protection (“PIP”) benefits which AAA paid (a total of $5,000.00). [MR 1.] Jackson also made a liability claim against Tompkins which her insurer, for whatever reason, offered him $30,000.00 to settle fully and finally any and all claims he had against Tompkins (AAA consented to the settlement). [Id.] Subsequent to the settlement with Tompkins, Jackson asserted a claim under the policy for the full amount of UIM limits - $100,000.00 per person limit. [Id.] On March 31, 2014, AAA received a demand letter from Jackson and a packet of information which provided Jackson’s version of events surrounding the accident and medical documentation. [Id.] On April 28, 2014 AAA offered Jackson $20,000.00 “in an effort to resolve this matter” – the clear connotation is that AAA made an offer to achieve a final settlement of a disputed contract claim (i.e., the UIM claim). [Id.] Importantly, the $20,000.00 offer was to “conclude” Jackson’s UIM claim in its entirety and to “resolve this matter” all hallmarks of a finite offer to 1 settle and not the offer of a partial payment (as Jackson contends). Moreover, four days later on May 2, 2014, Jackson made a counteroffer and, as a matter of law, rejected AAA’s $20,000.00 offer to settle and conclude in its entirety Jackson’s UIM claim. [MR 2.] This is evidenced also by the rejection of the counteroffer proposed by Jackson in AAA’s May, 22, 2014 correspondence, wherein AAA explicitly stated that: Your letter advises [Jackson] vehemently disagrees with [AAA’s] valuation; however, you demand [AAA] tender a check for $20,000.00 UIM. Furthermore, you advise [Jackson] will not sign a release, will negotiate the issued check and have the right to pursue additional amounts for this claim in the future. Unfortunately, [AAA is] unable to comply with your request. Our offer was a compromise to resolve this matter fully and finally in exchange for a release. It (the $20,000.00 offer) remains on the table if your client wishes to accept. If this offer is not being accepted and considered full and final we will continue our handling of this matter per Brainard v. Trinity Universal Ins. Co. case law. [MR 4-5.] As evidenced by the lawsuit, Jackson rejected AAA’s offer of $20,000.00 to fully and finally settle his UIM claim. 2  Yet now, Jackson contends an oral agreement (since no written agreement exists) was made between AAA and Jackson that AAA would pay him the previously offered and rejected $20,000.00 and then litigate whether Jackson was entitled to recover additional UIM benefits. [MR 9.] This contention by Jackson is meritless, inane, and borders on being patently frivolous.2 In fact, as demonstrated supra, nothing could be further from the truth. I. THE UIM LAWSUIT In his second amended petition (i.e., the live pleading), Jackson seeks to recover UIM benefits under Texas personal automobile policy number TPA-016443353 issued by AAA to Jackson (the “policy”), breach of contract 2 “A counteroffer constitutes a rejection, not an acceptance, of the original offer.” Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.—Houston [14th Dist.] 1997, no writ). An offeree’s power of acceptance is terminated by the making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree. Thurmond v. Wieser, 699 S.W.2d 680, 682 (Tex. App—Waco 1985, no writ); see also RESTATEMENT (SECOND) OF CONTRACTS § 39(2). Once it has been terminated by the making of a counteroffer, an offeree’s power to accept the original offer cannot be revived by later accepting the offer. See Legal Sec. Life Ins. Co. v. Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.—Austin 1963, no writ) (holding that the rejection of an offer has the effect of terminating it, and it cannot be revived by later acceptance); see also Figueroa v. Davis, 318 S.W.3d 53, 68-69 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating that, “[u]nder contract principles, once an offer is rejected, it is terminated, and the rejecting party cannot thereafter accept it”); RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981) (offeree’s power of acceptance is terminated by rejection of offer); Id. § 35(2) (1981) (a contract cannot be created by acceptance of an offer after the power of acceptance has been terminated). 3 for not funding his UIM lawsuit by paying him $20,000.00, breach of contract for not capitulating to his demands and pay him the per person $100,000.00 in UIM limits, as well as damages for AAA’s alleged bad faith and statutory violations related to the handling of his claim for UIM benefits. [MR 6-14.] In the underlying lawsuit, Jackson’s core factual allegations exclusively relate to the purported negligent conduct of Tompkins in causing the accident and Jackson’s alleged damages. [MR 7- 8.] Specifically, Jackson alleges: E. FACTS 7. This lawsuit results from a collision that occurred on June 12, 2013, at approximately 8:58 p.m. in Longview, Gregg County, Texas. [Jackson] was operating his vehicle westbound on Pliler Precise Road in a safe, reasonable and lawful manner, when he stopped in obedience to a traffic control device at the intersection of Judson Road and Pliler Precise Road. After stopping, and in obedience to the traffic control device, [Jackson] proceeded to continue traveling westbound into the intersection of Pliler Precise Road and Judson Road. [Tompkins] was traveling northbound on Judson Road when, with complete disregard for the safety and welfare of other persons or property, she disregarded the traffic control device striking the driver’s side of the vehicle being driven by [Jackson] and causing the collision made the basis of this lawsuit. 4  8. When the collision occurred, [Jackson’s] vehicle was covered by a policy of automobile insurance in full force and effect, which is the subject of this lawsuit. The policy of automobile insurance was issued by [AAA] and included uninsured/underinsured motorist coverage as defined under the policy and/or by statute. 9. [Jackson] timely and properly notified [AAA] of the motor vehicle collision that is the subject of this suit. [Jackson] has fully complied with all of the conditions of that insurance policy prior to his filing suit against [AAA]. All conditions precedent have been performed or have occurred. Further, [Jackson] has complied with requests for provision of information to [AAA]. 10. As a result of the collision caused by [Tompkins], [Jackson] sustained damages that exceed the amount of available and collectible liability insurance coverage issued to [Tompkins] and which covered her negligent actions. [AAA] refused to consider [Jackson’s] injuries, medical billing paid or incurred by or on behalf of [Jackson] and failed, and continues to fail, to fully compensate [Jackson] for the injuries caused by [Tompkins], an underinsured motorist, and give [Jackson] the benefit of the bargain of his uninsured/underinsured motorist coverage present in the insurance policy, in violation of Texas law as described herein below. As a result of their acts and/or omissions, and unlawful conduct as described herein below, [AAA] proximately caused [Jackson] injury. This is the sum total of the facts which form the basis for Jackson’s 5 purported breach of contract and extra-contractual claims against AAA. Incredibly and despite the established law in Texas, Jackson asserts the following causes of actions, with the relevant basis, in part, quoted: & BREACH OF CONTRACT [AAA] to date has failed and refused to pay the money due under the policy, despite demand. Specifically, [AAA] has determined that [Jackson’s] [UIM] claim is worth at least $55,000.00, as evidenced by its April 28, 2014, offer to pay $20,000.00 in addition to $5,000.00 previously paid by [AAA] in [PIP] benefits and $30,000.00 previously paid by [Tompkins’s] insurer. However, despite [Jackson’s] demand for payment of this undisputed portion of his underinsured motorist coverage, [AAA] has refused to tender this amount. This failure and refusal to pay constitutes a breach of contract and demonstrates bad faith. & BREACH OF CONTRACT Further, [AAA’s] failure to properly value and fully pay [Jackson’s] damages pursuant to its obligations in the policy at issue likewise constitutes a breach of contract and demonstrate bad faith, notwithstanding the Texas Supreme Court’s holding in Brainard v. Trinity Univ, Ins. Co., 216 S.W.3d 809 (Tex. 2006). 6 & BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING Without adequate explanation or justification, [AAA] breached its duty of good faith and fair dealing by denying and/or delaying payment of benefits to [Jackson] in accordance with its insurance agreement with [Jackson] when it was reasonably clear that it should pay said benefits to [Jackson]. Specifically, before the filing of this suit, [AAA] has determined that [Jackson’s] [UIM] claim is worth at least $55,000.00, as evidenced by its April 28, 2014, offer to pay $20,000.00 in addition to $5,000.00 previously paid by [AAA] in [PIP] benefits and $30,000.00 previously paid by [Tompkins’s] insurer. However, despite [Jackson’s] demand for [AAA’s] payment of $20,000.00 – the undisputed portion of the underinsured motorist coverage – [AAA] has refused and continues to refuse to tender this amount. Accordingly, [AAA] is in violation of Texas Insurance Code, Chapter 541, et seq. Further, [AAA] has engaged in unfair claim settlement practices in violation of Texas Insurance Code §§ 541.060(a)(2)(A), 542.056, 542.057, and 542.058. & VIOLATIONS OF THE DTPA AND THE TEXAS INSURANCE CODE § 541.060(A)(2)(A) Because [AAA] violated Texas Insurance Code § 541.060(a)(2)(A) (failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which its liability has become reasonably clear), [AAA] is deemed to have violated the 7  Texas Deceptive Trade Practices - Consumer Protection Act [and the Texas Insurance Code] ... [MR 8-14.] Jackson goes on to include the cause of action du jour – a declaratory judgment which mirrors his claim for UIM benefits with a claim for attorneys’ fees tacked on, and claims for knowing violations, and treble damages. [MR 10-11.] As is apparent, Jackson intends to offensively use the pre-litigation offer of settlement by AAA as the basis to support his claim for breach of contract, for the supposed breach of the duty of good faith and fair dealing, and for the claimed violation of the DTPA and the Texas Insurance Code. Perhaps even more egregious is that Jackson intends to make the $20,000.00 pre-litigation settlement offer as the centerpiece of his argument to the jury. That is, it is clearly evident that Jackson will contend that the value of his UIM claim, at a minimum, is at least $55,000.00 based on the $20,000.00 settlement offer made by AAA (when combined with the PIP and liability payments). Additionally, Jackson is going to make the settlement offer the focal point by arguing to the jury that it represents (1) an admission by AAA he is entitled to UIM benefits and (2) then to the same jury in the 8 bifurcated trial portion that AAA acted in bad faith in not paying him the per person limit. In fact, Jackson, albeit delusional and incorrect, admits as to such in his response to AAA’s motion to sever and abate when he describes the basis for his two breach of contract claims: There are two breach of contract claims in this suit. The first breach of contract claim arises because this case, unlike those cited by [AAA], involves a carrier who, after an apparent evaluation of coverage and the claim, (1) determined that the insured suffered a covered loss and was entitled to UM/UIM benefits in the sum of $20,000.00 and (2) refused to tender that sum upon [Jackson’s] request. It is [AAA’s] failure to tender that sum, not the amount or adequacy of that sum, that forms the basis for one of [Jackson’s] breach of contract claims and the entire basis for his bad faith claims. See [Jackson’s] Second Am. Pet., pg. 3—5. * * * [MR 131.] (emphasis added). It is impossible for Jackson to satisfy his burden of proof without utilizing, as most likely “Exhibit A,” the settlement offer. As discussed further infra, this Court has held that a trial court must sever and abate all extra-contractual claims under precisely this situation. 9 II. THE MOTION TO SEVER AND ABATE On January 19, 2015, AAA filed its motion to sever and abate Jackson’s extra-contractual claims (which necessarily includes the settlement-breach of contract claim) pending trial on the threshold requirements that Jackson obtain a judicial finding establishing the liability or legal fault of Tompkins in causing the accident, the actual amount of Jackson’s damages, and the underinsured status of Tompkins. [MR 66-72.] On the day before the hearing, Jackson filed his response. [MR 128-34.] The trial court held a hearing on the motion to sever and abate on November 6, 2015 and signed an order the same day denying AAA’s request to sever and abate the extra-contractual claims. [MR 138.] At prior hearing on October 1, 2015 the parties presented to the trial court their arguments as to why discovery as to the extra-contractual claims be stayed (by AAA) and why it should not (by Jackson). Yet, the court did not rule until after the severance and abate hearing where the trial court then entered an order retroactively dating back to October 1, 2015 directing AAA to respond to the extra-contractual discovery requests within 45 days – which became ten days from the date of the hearing. [MR 135-37.] 10  In ordering AAA to respond, the trial court reviewed the following discovery requests which clearly go beyond the scope of the evidence to legally establish (1) whether or to what extent Tompkins was negligent or at fault in causing the accident, (2) the amount Jackson’s actual damages solely because of the June 12, 2013 accident, and (3) whether Tompkins is actually underinsured – and which the trial court ordered AAA to answer by November 16, 2015: Request for Documents: 1. The entire claims file and/or adjuster logs including, but not limited to, photographs, statements, notes, memoranda, tables, computer- generated information and other written documents contained therein, that were generated in connection with the injury to [Jackson] that forms the basis of this lawsuit. * * * 6. All correspondence, memoranda, reports, e- mails, facsimile transmissions, and all other documents evidencing communications regarding the insurance claim(s) or any aspect of said claim(s) that is the subject of this litigation between [AAA] and its (a) adjusters, (b) employees, (c) officers, (d) agents, € representatives, (f) independent adjusters (other than those retained for the purpose of litigation), and/or (g) independent adjusting firms (other than those retained for the purpose of litigation). 11 7. All documents regarding every telephone conversation with or regarding [Jackson]. 8. All documents regarding the amount(s) set aside and/or placed in reserve regarding [Jackson’s] claim for [UIM] coverage benefits herein. * * * 11. If already produced herein, a complete copy of every primary, umbrella, and excess insurance policy or agreement, including all declarations page(s), endorsements, amendments, riders, and attachments in effect when the subject collision occurred and providing coverage to [Jackson] for injuries suffered in the subject collision. * * * 13. All non-waiver agreements, reservation of rights letters, and other documents or communications regarding any contractual obligation owed to you by [Jackson] or condition precedent to recovery with which [Jackson] must comply. 14. All documents relating to any initial determination, temporary determination, tentative determination, or final determination regarding whether [Jackson’s] claim herein is payable or not payable. * * * 18. All documents, records, reports, notations, 12 and/or memoranda regarding [Jackson] from persons and/or entities that compile information regarding bodily injury claims, health insurance claims, liability/property/casualty insurance claims, worker's compensation claims, and other insurance claims, including but not limited to the Insurance Services Office (“ISO”), Southwest Index Bureau, and all similar persons or entities. 19. All peer reviews, audits, medical summaries, memoranda, notes, letters, and other documents relating to or compiled from the medical records that [Jackson] has submitted for payment pursuant to the policy at issue herein and/or injuries that [Jackson] claims were caused by the collision made the basis of this lawsuit. 20. All liability work-ups or reports relating to [Jackson’s] claim for [UIM] coverage benefits. 21. All documents relating to [AAA’s] use, if any, of computer software programs in reviewing, analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and 2014. 22. All documents relating to [AAA’s] use, if any, of computer software programs in reviewing, analyzing, and/or evaluating [Jackson’s] claims of injury in the motor vehicle collision that forms the basis of this lawsuit. 23. All documents containing [AAA’s] policies, procedures, processes, and/or rules used by [AAA] employees to assist in their evaluation of uninsured/underinsured motorist claims. 13 24. All documents containing [AAA’s] policies, procedures, processes, and/or rules used by [AAA] employees to assist in their evaluation of automobile collision bodily injury claims. * * * 26. All reports, memoranda, and other documents related to [AAA’s] evaluation of any claim for benefits made by [Jackson] other than the claim at issue herein. 27. All documents relating to every initial determination, temporary determination, tentative determination, or final determination regarding whether any of [Jackson’s] claims other than that at issue herein was payable or not payable. 28. All documents regarding and/or discussing [AAA’s] refusal to pay the $20,000.00 that you offered on April 28, 2014. 29. All documents reflecting, regarding, and/or discussing premium payments made by [Jackson] for the automobile insurance policy in effect when the collision that is the subject of this lawsuit occurred. 30. All documents necessary to determine the name, address, telephone number, immediate supervisor, and current employer of all of [AAA’s] adjusters, employees, agents, and/or representatives that have reviewed [Jackson’s] claim file from a claims handling or claims review standpoint. 14 31. All documents and/or materials pertaining to any negotiations for settlement or offers of settlement that were compiled or created prior to the time of the filing of this lawsuit. 32. All documents, reports, or investigations relied upon by [AAA] in denying or delaying payment of any benefits to [Jackson] related to the claim that is the subject of this lawsuit. 33. All documents regarding any contract that [AAA has] with any independent adjuster who performed any service on your behalf related to [Jackson] claim herein. 34. All documents described or utilized in responding to [Jackson’s] Interrogatories, Requests for Production, and Requests for Admission. * * * Interrogatories: 3. To the extent not already produced herein, describe each separate file containing records, documents, and/or information relating to [Jackson] and/or [Jackson’s] claims, including in [AAA’s] description for each file, the file’s name, the file number, its descriptive title assigned to it in the ordinary course of your business, each custodian of the file, the file’s contents, and its current location. * * * 5. Identify by name, employer (if different from [AAA], business address, job title, and telephone 15 number of each individual who will be [AAA’s] in- court representative. 6. Identify by name, employer (if different from [AAA], business address, job title, and telephone number and role of each of [AAA’s] employees, agents, representatives, adjusters, independent adjusters, independent adjusting firms, consultants, and any entity or individual acting under any oral or written agreement, who performed any claims work, participated in the evaluation of [Jackson’s] claim, and/or claims services of any type or nature with respect to the insurance claims involved in this litigation. 7. Identify every medical doctor, physician, osteopath, physician’s assistant, and/or nurse who has reviewed medical records of [Jackson] in connection with the claim for [UIM] benefits that are the subject of this lawsuit. 8. Identify each of your employees who played any role in evaluating [Jackson’s] claim, authorized any proposed payment to be made to [Jackson], and/or made decisions regarding any adjuster’s authority to pay or deny [Jackson’s] claim relating to [the UIM] coverage purchased by [Jackson]. 9. lf [AAA has] information that has not already been produced herein regarding any other claims for personal injury of any type that were made or may have been made by [Jackson] or by [Tompkins] since the collision made the basis of this suit, please state all information you have regarding each such claim, specifically including but not limited to: a. The date of the claim; 16 b. The type of the claim; c. The name of the person making the claim; d. The other parties involved in the claim; e. The injuries claimed in the incident made the basis of this claim f. The identity of all medical providers involved in treating any injury claimed in the incident made the basis of the claim g. Each insurer and claim number assigned to the claim; and h. The disposition of the claim. * * * 11. Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a), if [AAA] contends that [AAA is] entitled to a credit or offset against judgment, state for each such credit/offset: a. The dollar amount; b. Each category(ies) of damages to which [AAA] claims the credit/offset applies; and c. How [AAA] arrived at and/or calculated the dollar amount of the credit/offset. * * * 14. lf not already contained in documents produced herein, state all procedures followed and each criteria utilized by [AAA] in its investigation and evaluation of [Jackson’s] claim. 15. List, identify, and describe all documents not already produced herein that support [AAA’s] contention, if any, that: a. [Jackson] failed to meet or perform 17  condition(s) precedent to his bringing this lawsuit; b. [Jackson] failed to comply with a te1m or condition of the insurance agreement that is the subject of this lawsuit; and/or c. [Jackson’s] claim is excluded from [UIM] coverage pursuant to a term or condition of the insurance agreement that is the subject of this lawsuit. 16. State every reason for your denial of [Jackson’s] [UIM] claim in excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in previously paid personal injury protection benefits and $30,000.00 previously paid by [Tompkins’] insurance carrier). 17. If [AAA] used any computer software program to assist in the evaluation of [Jackson’s] claim for [UIM] benefits arising from bodily injury, state for each program: a. The name of the program used; b. The specific data utilized by the program in evaluating [Jackson’s] claims; c. All data fields that the program deems relevant to evaluating injury claims d. The identity of each person who input data regarding [Jackson] into the program; e. The means by which the results of the program’s analysis are presented to the program user and/or claims adjuster(s); f. The identity of each person who received results regarding [Jackson’s] claim; and g. The methods by which results of the program’s analysis are distributed to each end user of the information other than the 18  program user and claims adjuster(s). 18. List all manuals, instructions, directions, and materials providing guidance regarding the use of each computer software program identified in the foregoing interrogatory. 19. State every reason for [AAA’s] refusal to pay the $20,000.00 that [AAA] offered (in addition to $5,000.00 in previously paid personal injury protection benefits and $30,000.00 previously paid by [Tompkins’] insurance carrier) through Fredrick M. Armour, your Claims Service Representative, on April 28, 2014. 20. lf [AAA] contends that [Jackson] is obligated to provide you with a release in exchange for the payment of benefits afforded by the [UIM] coverage contained in the policy at issue herein, identify all policy provisions and other documents on which [AAA] base such contention. * * * Request For Admissions: 14. [Admit or Deny that] [b]ased upon [AAA’s] investigation(s) and/or evaluation(s) of [Jackson’s] [UIM] claim, [AAA has] determined that [Jackson] has sustained damage in excess of the sum of (1) [Jackson’s] $5,000.00 personal injury protection coverage, and (2) [Tompkins’] $30,000.00 limit of liability insurance. * * * 17. [Admit or Deny that] [AAA has] failed to pay 19  any portion of the $20,000.00 that you offered [Jackson] on April 28, 2014. 18. [Admit or Deny that] [Jackson] has complied with all conditions precedent to recovering from the [UIM] coverage contained in [AAA’s] policy number TPA-016443353 [MR 17-65.] Relevant to this petition for writ of mandamus is that the trial court itself deemed request for production of document numbers 1, 6, 8, 14, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33; and 34, interrogatories 3, 6, 8, 14, 16, 17, 18, and 19, and request for admission number 17 as “related to [Jackson’s] extra-contractual claims.” [MR 135-37.] In the response to Jackson’s motion to compel, AAA pointed out specific instances and the reason why the answering of the above discovery requests were prejudicial, went beyond the scope of the trial where Jackson would be required to legally establish the liability of fault of Tompkins, Jackson’s actual damages, and that Tompkins is in fact underinsured, as well as how such requests were inappropriate until such time as Jackson demonstrates he is legally entitled to recover UIM benefits. However, the trial court denied the request to sever and abate, ordered AAA to answer all of the above discovery requests, and indicated the trial court would bifurcate the 20 trial of Jackson’s extra-contractual claims. [MR 135-37; 138.] Due to the relatively short time period to respond to the discovery requests (10 days from the date of the hearing), AAA filed this original proceeding requesting this Court stay the trial court’s order compelling AAA to answer the discovery requests, and to instruct the trial court to both sever and abate Jackson’s extra-contractual claims. ARGUMENT & AUTHORITIES 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, supra, 327 S.W.3d at 253. 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, supra, 148 S.W.3d at 136. 21 II. MANDAMUS RELIEF IS WARRANTED IN THIS CASE Mandamus relief is warranted in this case because the record establishes (a) the trial court abused its discretion when it refused to abate discovery on Jackson’s extra-contractual claims until the preliminary issues of tort liability and damage is resolved, and (b) AAA has no clear and adequate remedy at law. See Id. at 135–36. A. The Trial Court Abused Its Discretion in Refusing To Sever and Abate Jackson’s Extra-Contractual Claims and When It Failed To Abate Discovery on Jackson’s Extra-Contractual Claims Because These Claims Are Not Ripe, Have Not Accrued, and Will Likely Be Rendered Moot, Unless and Until Jackson Has Obtained a Final Adjudication of Tompkins’ Liability, Jackson’s Actual Damages, and the Underinsured Status of Tompkins for which AAA Owes UIM Benefits, But Then Refuses to Pay. 1. Because Jackson has not satisfied the conditions precedent to assert a valid UIM claims and has not obtained a final judgment establishing the liability or fault of Tompkins in causing the accident with Jackson, the amount of his actual damages, and a determination whether Tompkins is underinsured, AAA has no contractual duty to pay UIM benefits. UIM claims and extra-contractual 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 United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672 22 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). In the context of UIM claims, “the 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 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, Jackson must succeed in establishing he is legally entitled to recover UIM benefits under the policy, and then demonstrate AAA refused to subsequently pay him those UIM benefits, before any extra- contractual claims could ever accrue or become ripe for determination. To succeed on his UIM claim, Jackson must first establish that UIM coverage 23 for his 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) (“the insured has the burden of establishing coverage under the terms of the policy.”); In re Allstate County Mut. Ins. Co., 447 S.W.3d 497 (Tex. App.– Houston [1st Dist.] 2014, no pet.) (in order “[t]o prevail on these [extra- contractual] claims, the [plaintiffs] must first establish that Allstate is liable under the insurance contract”). To meet his initial burden, Jackson must first satisfy the conditions precedent to recover on a UIM claim, which requires Jackson obtain a judicial finding establishing the liability or legal fault of Tompkins in causing the accident, the actual amount of Jackson’s damages, and the underinsured status of Tompkins. 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 Jackson obtains a final judgment establishing Tompkins’ liability, Jackson’s actual damages because of the June 12, 2013 accident, that Tompkins is actually underinsured – that is, his actual damages exceed the total limit of liability available to Tompkins – as well as that his actual damages exceed the 24 $5,000.00 in PIP benefits and $30,000.00 in liability limits previously paid to him, AAA has no contractual or legal obligation to pay UIM benefits to Jackson. 2. Allowing discovery on Jackson’s extra-contractual claims before a determination on Jackson’s UIM claim is an abuse of discretion. Absent proof of an actual breach of contract, AAA should not be required to provide discovery related to Jackson’s extra-contractual claims because it is wholly irrelevant, overly broad, and prejudicial. See In Progressive, supra, 439 S.W.3d at 427 (severance and abatement of extra- contractual claims was necessary to avoid prejudice because discovery relating to extra-contractual claims is irrelevant to claim for UM benefits and beyond the underlying tort claim – i.e., far broader than car accident claim that must first be resolved). Again, in order to even potentially have – let alone actually prevail on - - his extra-contractual claims, Jackson must first demonstrate AAA is contractually obligated to pay his UIM claim. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005) (bad faith claims are generally negated by a lack of coverage). Thus, AAA cannot be liable on any extra-contractual claim or even for breach of contract until Jackson 25 establishes that AAA has failed or refused to pay his UIM claim subsequent to Jackson obtaining and presenting to AAA a final adjudication establishing (1) Tompkins’ liability, (2) Jackson’s actual damages because of the June 12, 2013 accident, and (3) that Tompkins is actually underinsured. Prior to this occurring, all the time, effort, money, and judicial resources spent conducting discovery on those claims will have been for naught. 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 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. Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483, 486 (S.D. Tex. 2009). It is for this reason that several courts of appeals, including opinions from this Court, require the severance and abatement of extra-contractual claims (thereby precluding discovery on such claims), in the UIM context when a settlement offer has been made, such as the matter sub judice. For instance, in Texas Farm Bureau Underwriters v. Skeen, 374 S.W.3d 651 (Tex. App.—Tyler 2012, no pet.), this Court, although not a UIM case, under very 26 similar facts held that “all of the facts and circumstances of the case unquestionably require a [severance] to prevent manifest injustice, there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby . . . “ Skeen, 374 S.W.3d at 657 (internal citations omitted). In Skeen, Terry Graham (“Graham”) shot and killed Hiram Joshua Chambers (“Hiram”). Id. at 654. Amanda Chambers, Hiram’s ex-wife, sued Graham as next friend of Hiram’s two children. Id. Graham requested a defense from Farm Bureau, but Farm Bureau denied Graham’s request. Id. Graham paid his attorneys approximately $130,000 to defend him against Chambers’ suit and after its conclusion, brought a breach of contract claim against Farm Bureau seeking reimbursement of the money he paid to his attorneys, and asserting extra-contractual claims for breach of Farm Bureau’s common law and statutory duty of good faith and fair dealing. Id. After dealing with competing motions for summary judgment, the trial court turned to Farm Bureau’s motion to sever and abate. Id. Just as here, Farm Bureau contended that, as it had made an offer of settlement $15,000.00) to Graham, without a severance, it would be prejudiced by 27 evidence of that settlement offer being presented during the breach of contract portion of the trial. Id. Farm Bureau also contended that the extra-contractual claims should be abated until final resolution of Graham’s contractual claim because information which would be privileged from discovery on the contractual claim is not privileged and would be subject to discovery on the extra- contractual claims. Id. Graham responded that the extra-contractual claims need not be severed because the trial court had granted Graham’s motion for partial summary judgment on his contractual claim, meaning that the only remaining issue was the amount of damages to be awarded by the jury on his breach of contract claim. Id. Alternatively, Graham argued that bifurcating the trial would prevent the settlement offer from be admitted during the breach of contract phase of the trial. Id. at 654-55. The trial court denied Farm Bureau’s motion. Id. Farm Bureau filed a petition for writ of mandamus and a motion for emergency relief. Id. at 655. After discussing the availability of a mandamus under the circumstances, this Court looked to whether the trial court abused its discretion when it refused to sever Graham’s extra-contractual claims, finding that: 28  there is no room for the exercise of discretion “[w]hen all of the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby. . . .” Under these circumstances, the refusal to order a severance constitutes a violation of a plain legal duty, even though it is often termed a clear abuse of discretion. Id. at 656 (internal citations omitted). Moreover, this Court noted that it has on previous occasions held that where an insurer has made an offer to settle, the extra-contractual claims must be severed from the contractual claims. Id. at 657. Keeping this proposition in mind, this Court held that as Farm Bureau had made an offer to settle, it would be unfairly prejudiced by the admission of its settlement offer in the trial of the breach of contract claim. Id. Further, this Court went on to hold that the extra-contractual claims must also be abated because: in conducting discovery on the extra-contractual claims in this case, Graham would seek information regarding Farm Bureau’s handling of the underlying claim made the basis of the breach of contract. This information is relevant and discoverable on the extra-contractual claims, but is privileged and protected from discovery when focusing only on the breach of contract claim. Thus, 29  under the facts presented here, we hold that Farm Bureau has also shown that the trial court abused its discretion in denying its motion to abate. Id. at 658 (internal citations omitted). Similarly, this Court in In re Allstate Ins. Co., 232 S.W.3d 340 (Tex. App.—Tyler 2007, orig. proceeding), held that severance and abatement was necessary where an insurer made an offer to settle. Relevant to this matter, the Court likewise held that abatement of the extra-contractual claims was required, explaining that: as in most cases involving severance of contractual and extra-contractual claims, if the extra-contractual claims are not abated, both parties will incur unnecessary discovery expenses if the Nerrens’s breach of contract claim is decided in Allstate’s favor. We have previously held that these factors, standing alone, do not necessarily require abatement. But two additional factors are present here. First, Allstate argues that abatement is necessary to prevent the premature disclosure of privileged information. Specifically, Allstate contends that in conducting discovery on the extra- contractual claims, the Nerrens will seek information regarding Allstate’s handling of claims that is relevant and discoverable on the extra- contractual claims, but is privileged and protected from discovery when focusing only on the breach of contract claim. In re Allstate Ins. Co., 232 S.W.3d at 344 (internal citations omitted). 30  Just as in Skeen and In re Allstate, supra, AAA made an offer of settlement on a disputed contract claim to Jackson. [MR 1; 4-5.] Furthermore, Jackson has made it abundantly clear that he intends to make the offer of settlement by AAA the focal point and key piece of evidence for purposes of proving up his breach of contract claim as described in his response to AAA’s motion to sever and abate [MR 131], and to prove up his purported extra-contractual claims [Id.]. It is also true the concerns which led this Court to require the trial court to sever and abate the extra- contractual claims in the cases discussed above are present here – that is, severance and abatement is necessary as Jackson seeks to discover information regarding AAA’s handling of claims which may be relevant and discoverable on the extra-contractual claims, but is privileged and protected from discovery as to the portion of the trial focusing on Jackson establishing he is legally entitled to recover UIM benefits. [MR 17-65.] Lastly, bifurcation will not prevent Jackson from attempting to offensively use the settlement offer during the trial on his claimed breach of contract cause of action and which is where he must demonstrate all conditions precedent to asserting a valid UIM claim have been legally established. There is simply no way to avoid prejudicing AAA’s rights in the absence of 31 a severance and abatement of the extra-contractual claims and his claim for breach of contract based on the settlement offer. It is also true that the Texas Supreme Court in Akin noted that under Texas jurisprudence a trial court should typically sever and abate extra- contractual claims in the UIM context when a settlement offer on the disputed UIM claim has been made by the insurer. Akin, supra, 927 S.W.2d at 628; see also In re Miller, 202 S.W.3d 922, 925-26 (Tex. App.–Tyler 2006, orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex. App.–Amarillo 2001, orig. proceeding). Under virtually identical circumstances, the El Paso Court of Appeals, citing Akin, described the state of Texas jurisprudence as requiring severance and abatement when an insurer has extended an offer to settle a claim under a contract: A trial court abuses its discretion if it fails to order a severance “[w]hen all of the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion.” Prejudice is not presumed simply because contract claims and extra- contractual claims are joined in the same action; accordingly, severance is not always mandatory. 32  However, when an insurer moves to sever an insured’s extra-contractual claims from a contract claim following its offer to settle the insured’s entire contract claim, the trial court must sever the insured’s extra-contractual claims from the contract claim because evidence of a settlement offer creates prejudice. In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229, 234 (Tex. App.—El Paso 2012, orig. proceeding) (internal citations omitted). The court of appeals explained the reason severance and abatement is required this way: Absent severance, an insurer is presented with a “Catch-22” in that its decision to admit or exclude evidence of a settlement offer jeopardizes the successful defense of the other claim. For instance, in defending against a contract claim, the insurer will insist on exercising its right to exclude evidence of a settlement offer to negate liability. See Akin, 927 S.W.2d at 630; see also TEX. R. EVID. 408. Conversely, in defending against extra-contractual claims, an insurer will insist on exercising its right to admit evidence of a settlement offer to negate liability. Akin, 927 S.W.2d at 630. Thus, by having to defend against these two types of claims simultaneously and before the same jury absent severance, an insurer is prejudiced to such an extent that a fair trial is unlikely. Akin, 927 S.W.2d at 630. Under such a scenario, the trial court has no choice but to sever in order to protect the fairness of the proceedings and the interests of the parties. See State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex.App.--Houston [14th Dist.] 1992, orig. 33  proceeding). Id. at 234. A recent opinion from the Houston Court of Appeals specifically addressed the prejudice involved in allowing discovery on extra- contractual claims to continue prior to a determination on an UM claim. See In re Progressive, supra, 439 S.W.3d 422. There, an insured filed suit for UM benefits, as well as seeking damages for bad faith and statutory violations related to the failure to pay those benefits. Id. 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 UM claims for over ten years. Id. at 427. In response to the insurer’s motion to sever the UM claim from the extra-contractual claims, the trial court judge signed an order allowing discovery to move forward on all claims, and deferring the other issues covered by the motion until the pretrial hearing. Id. at 424. The court of appeals concluded severance and abatement of the extra-contractual claims was required in order to avoid prejudice to the insurer. Id. at 427. (citing Womack v. Berry, 291 S.W.2d 677, 682–83 (Tex. 1956)). The Progressive court went on to state: 34  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 (emphasis added). Similarly, the trial court’s order – made the subject of this mandamus – denying the severance and abatement, ordering bifurcation, and compelling AAA to respond to Jackson’s extra-contractual claims subjects AAA to irrelevant, overly broad, and prejudicial discovery. Other recent opinions confirm the trial court’s refusal to sever and abate the extra-contractual claims and to abate the discovery on Jackson’s 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. United Fire, supra, 327 S.W.3d a 252. 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 35 to severance and abatement, arguing “a severance would be judicially wasteful” and would prejudice the insured. Id. at 253. In reviewing the trial court’s decision to bifurcate (and deny severance and abatement) 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 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 36  convenience. Under these circumstances, we conclude the trial court abused its discretion in bifurcating the case instead of severing and abating the UIM claim from the bad faith claims. Id. (internal citations omitted) (emphasis added). It appears no Texas intermediate court has held severance and abatement is not necessary where the insurer has made an offer to settle. In fact, every court of appeals to address the issue has held that when the insurer has made an offer to settle, a severance and abatement of the underlying tort aspect of the claim is required to avoid undue prejudice to the insurer in its defense of the underlying dispute. Mid-Century Ins. Co. v. Lerner, 901 S.W.2d 749, 752-53 (Tex. App.–Houston [14th Dist.] 1995, orig. proceeding); Northwestern Nat’l Lloyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46- 47 (Tex. App.–Houston [14th Dist.] 1993, orig. proceeding); F. A. Richard & Assocs. v. Millard, 856 S.W.2d 765, 767 (Tex. App.–Houston [1st Dist.] 1993, orig. proceeding); United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673 (Tex. App.–Houston [1st Dist.] 1993, orig. proceeding); State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.–Houston [14th Dist.] 1992, orig. proceeding). The rationale of these cases is that, ordinarily, offers of settlement as to a disputed claim for coverage are 37 inadmissible. Akin, supra, 927 S.W.2d at 629. As in Akin, Allstate, State Farm, Progressive, United Fire, and the other cases cited supra, the trial court’s order denying AAA’s request to sever and abate the extra-contractual claims and to abate discovery as to same is an abuse of discretion because it does “not do justice, avoid prejudice, or further convenience.” In re Allstate, supra, 447 S.W.3d at 502. Here, AAA offered Jackson $20,000.00 in exchange for the settlement and release of a disputed contract claim (i.e., Jackson’s request for UIM benefits), which was not accepted, and which Jackson asserts the failure of AAA to pay same – even though it will not resolve the UIM lawsuit – constitutes a breach of contract and bad faith on the part of AAA. [MR 1; 4-5; 8-10.] It is difficult to imagine an even more objectionable and prejudicial situation to an insurer than the one presently before this Court, which clearly mandates both the severance and abatement of Jackson’s extra-contractual claims. Thus, consistent with Brainard and its progeny, unless and until Jackson obtains a judgment establishing the conditions precedent to assert a valid UIM claim (that is, a judicial finding as to Tompkins’ liability, Jackson’s actual damages, and that Tompkins is actually underinsured), AAA has no contractual obligation to pay UIM benefits. 38  Without an existing contractual obligation to pay, AAA should not be required to put forth the effort and expense of conducting discovery on Jackson’s extra-contractual claims because these claims have not yet accrued and would be rendered moot by Jackson’s failure to prevail as to his liability and damages claims against Tompkins and only then after a subsequent refusal to pay by AAA the judicially established UIM claim (in the event Jackson obtains a final adjudication demonstrating he is legally entitled to recover). Allowing Jackson to conduct discovery on his extra-contractual claims will require AAA “to expend resources answering discovery that is far broader than the car accident claim that must be resolved.” In re Progressive, supra, 439 S.W.3d at 427. Thus, the trial court’s refusal to sever and abate the extra-contractual claims and to abate discovery on these claims was an abuse of discretion warranting mandamus relief. See In re Allstate, supra, 2003 Tex. App. LEXIS 9245 *2; In Allstate , supra, 447 S.W.3d at 502; In re Prudential, supra, 148 S.W.3d at 135–36. 39  B. AAA Has No Clear and Adequate Remedy By Appeal Because It Will Lose Substantial Rights By Being Required To Conduct Discovery on Claims Which Have Not Accrued and May Be Rendered Moot. Once AAA is required to respond to the discovery propounded by Jackson and which go only to his settlement-breach of contract and extra- contractual claims, AAA will be irreparably harmed. Moreover, as Texas jurisprudence has consistently held, AAA has a substantial right not to be required to put forth the expense of conducting discovery on extra- contractual claims which have not accrue, are not ripe, and could be rendered entirely moot, unless and until Jackson first conclusively prevails on her UIM claim and only then after AAA fails to pay those benefits. See, e.g., In re Progressive, supra., 439 S.W.3d at 428 (citing In re United Fire Lloyds, 327 S.W.3d at 256). If discovery on Jackson’s extra-contractual claims is permitted to advance, AAA 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 . . . underinsured motorist benefits.” In re Allstate, supra, 447 S.W.3d at 503 (citing In re Progressive, 439 S.W.3d at 427–28); see also In re American 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 40 being required to prepare and try claims that may be rendered moot”). Accordingly, AAA has no adequate remedy by appeal, and mandamus relief is warranted. Id. PRAYER WHEREFORE, PREMISES CONSIDERED, Relator AAA Texas County Mutual Insurance Company respectfully prays that this Court direct the trial court to withdraw its November 6, 2015 order and instruct the trial court to sever and abate the extra-contractual claims and to abate discovery on Jackson’s severed settlement-breach of contract, extra- contractual, and bad faith claims until there has been a full and final resolution of Jackson’s UIM claim, and to vacate the November 6, 2015 order compelling AAA to respond to the discovery requests associated with or which only pertain to Jackson’s extra-contractual claims. AAA also prays and for such other and further relief to which AAA may be entitled. 41 Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. BY: /s/ Gregory R. Ave GREGORY R. AVE Texas Bar No.: 01448900 greg.ave@wbclawfirm.com JAY R. HARRIS Texas Bar No.: 00793907 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Telephone: 214-347-8310 Facsimile: 214-347-8311 ATTORNEYS FOR RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY 42  CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned certifies that this petition complies with the type-volume limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B). Exclusive of the exempt portions identified by Texas Rule of Appellate Procedure 9.4(i)(1), this petition contains 8,664 words, including footnotes, headings, and quotations. In providing this word-count, the undersigned is relying on the word count generated by the computer program used to prepare the brief. This brief has been prepared in proportionally spaced type, 14-point text, and in Book Antiqua font, using the computer program known as Microsoft Word (2010 version). Acknowledged: November 16, 2015 /s/ Gregory R. Ave GREGORY R. AVE 43  CERTIFICATE OF SERVICE This is to certify that on this the 16th day of November, 2015 a true and correct copy of the above document has been forwarded to all counsel of record in compliance with the Texas Rules of Civil Procedure. The Honorable Judge David Brabham Via hand delivery Judge of the 188th Judicial District Court of Gregg County Gregg County Courthouse 101 East Methvin, Suite 408 Longview, Texas 75601 Justin A. Smith Via E-Serve Glenn A. Perry Sloan, Bagley, Hatcher & Perry Law Firm 101 East Whaley Street Longview, Texas 75601 ATTORNEYS FOR REAL PARTY IN INTEREST THOMAS JACKSON /s/ Gregory R. Ave Gregory R. Ave 44  APPENDIX Item Tab Order Denying AAA’s Motion to Sever and Abate ..........................................A Order Compelling AAA to Respond to Jackson’s Extra-Contractual Discovery Requests ................................................................................................ B Defendant’s Objections and Responses to Plaintiff’s First Request for Production; Defendant’s Objections and Answers to Plaintiff’s First Set of Interrogatories; and Defendant’s Objections and Responses to Plaintiff’s First Request for Admissions ............................................................. C 45 Tab A  FILE O GREGG COUNT',~ TEXA 8 CAUSE NO. 2014-1365-A THOMAS JACKSON § IN THE DISTRICT COURT 0 § vs. § GREGG COUNTY, TEXAS § AAA TEXAS COUNTY MUTUAL § TH INSURANCE COMPANY § 188 JUDICIAL DISTRICT ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT On the io-t-'h day of __N_o_\J_._____, 2015, came to be heard Defendant AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement to Plaintiffs extra-contractual claims and causes of action. The court, after reviewing the arguments of counsel and reviewing the documents on file, is of the opinion that said motion should be DENIED. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra- contractual claims will not be severed from the underlying contract claim and the extra- . contractual cla11n~Jl!e not abated. --r.- /! .. _ ..L .L .. A I J..u. \JZlW'"'ll Ott~" 1D -'- '"{IA.CAA.. fw·I'cJ. -skill be_ (:;,i~co:t~ 1 04 -to "'R.,.,.;~''=- ~o. c?..c..ti-c~c~eu ~D.A...,'5. SIGNED this (I) th day of No Li , 2015. JUDGE PRESIDING ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT· Solo Page # 14872448177325 Tab B  FILED GREGG COUNT'(. TF..XAS NOV 0 6 2015 CAUSE NO. 2014 - 1365 - A -zu -A DEPUn' THOMAS JACKSON § IN THE DISTRICT COURT § vs. § OF GREGG COUNTY, TEXAS § AAA TEXAS COUNTY MUTUAL § INSURANCE COMPANY § 1881h JUDICIAL DISTRICT AGREED ORDER ON PLAINTIFF'S MOTION TO COMPEL After considering Plaintiff, Thomas Jackson's Motion to Compel, the response, any evidence submitted therewith, and arguments of counsel, the Court finds the Motion to be well taken and therefore GRANTS Plaintiff's Motion to Compel. It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to Compel is GRANTED and that all objections asserted by Defendant in its responses to Plaintiff's First Requests for Admission, First Set of Interrogatories, and First Requests for Production are hereby OVERRULED. The Court further FINDS that the following requests are related to the incident underlying the suit, Plaintiff's claims for breach of contract and/or Plaintiff's claims for declaratory judgment: Plaintiff's Request for Admission No. 18; Plaintiff's Interrogatories Nos. I, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, and 20; Plaintiff's Requests for Production Nos. 2, 3, 4, 5, 7, 9, IO, 11, 12, 13, 15, 16, 17, 18, 25, and 29; and Plaintiff's Request for Production No. 34, to the ~ - I extent it pertains to these immediately aforementioned discovery requests. It is, therefore, Page I ORDERED that Defendant shall fully respond to these requests and interrogatories and produce all responsive information and documents within fourteen (14) days of October I, 2015. It is further ORDERED that should any information or material be withheld on the basis of privilege from Defendant's responses to this discovery, Defendant shall produce a privilege log identifying the information withheld, the specific privilege(s) asserted, information sufficient for the Court and Plaintiff to assess the applicable of those privileges, and any and all other information required by Texas Rule of Civil Procedure 193.3 within fourteen (14) days of October I, 2015. The Court further FINDS that that the following requests are related to Plaintiffs extra- contractual claims: Plaintiffs Request for Admission No. 17; Plaintiffs Interrogatories Nos. 3, 6, 8, 14, 16, 17, 18, and 19; Plaintiffs Requests for Production Nos. l, 6, 8, 14, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, and 33; and Plaintiffs Request for Production No. 34, to the extent it pertains to these immediately aforementioned discovery requests. It is, therefore, ORDERED that Defendant shall fully respond to these requests and interrogatories and produce all responsive information and documents within forty-five (45) days of October l, 2015. It is further ORDERED that should any information or material be withheld on the basis of privilege from Defendant's responses to this discovery, Defendant shall produce a privilege log identifying the information withheld, the specific privilege(s) asserted, information sufficient for the Court and Plaintiff to assess the applicable of those privileges, and any and all other information required by Texas Rule of Civil Procedure 193.3 within forty-five (45) days of October I, 2015. Page 2  t-lo-..J. Z:, SIGNED on_!__:..:::_:~----- , 201s. --1\Ml.J~~- JUDGE PRESIDING Page 3 Tab C ....•. '. CAUSE NO. 201"1365-A THOMAS JACKSON, § IN THE DISTRICT COURT OF Plaintiff § § vs. § l 88th JUDICIAL DISTRlCT l I § r AAATEXASCOUNTYMUTUAL § INSURANCE COMP ANY § Defendant. § GREGG COUNTY, TEXAS DEFENDANT'S OBJECTlONS and RESPONSES TO PLAJNTIFF THOMAS JACKSON'S FIRST REQUEST FOR PRODUCTION TO: Thotnas Jackson, Plaintiff, by and tbrougli his attomeys of record, M. Raymond Hatcl:ier and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley j. Street, Longview, Texas 75601. ! COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above numbered and styled cause, and serves its Objections and Responses to the Plaintiffs l'irst Request for Prodiiction, in accordance with the Texas Rn!es of Civil Procednre. Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. State Bar No. 01631230 Meadow Park Tower, Sirite 1500 10440 N01ih Central Expressway, Dallas, TX 75231 I·. I Tel: 214-749-4805 l'ax: 214-760-1670 I carlos.balidolii.!wbclawftrrn.com ' ATTORNEY FOR DEFEND.ANT  CERTIFICATE OE SERVICE This is to certify that a true and correct copy of the foregoing document has been mailed, faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules of Civil Procedure, on December~ 2014. Via First Class U.S. Mail M. RaymondHatcher Alan J. Robertson Sloan, Bagley, Hatcher & Perry Law Film I 01 East Whaley Street Longview, Texas 75601 r: i  ' I The Defendant objects generally to the Definitions and Instructions set forth at 1he beginning of i this written discovery request for the reason that they are overly broad, unduly burdensome, and i harassing. Further, the Defendant objects to these Definitions and Instructions for tbe reason that I' there is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such definitions and instructions. The Defendant also objects to the Definitions and Instructions to the extent that they seek to impose a greater burden and obligation on tbe Defendant than is permissible under the Texas Rules of Civil Procedure, I l l l Without walving or limiting the foregoing general objection, the Defendant specifically i objects to Plaintiff's discovery as follows: r !' "· ~;: OBJECTIONS AND RESPONSES TO PLAINTIFF'S i"• FIRST REQUEST FOR PRODUCTION ( i I 1. The entire claims file and/or adjuster logs including, but not limited to, photographs, I statements, notes, memoranda, tables, computer-generated information and other written i documents contained iherein, that were generated in connection with fue injmy to the II Plaintiff that forms the basis of this lawsuit. II RESPONSE: I I The Defendant objects to this request on the grounds it violates the attomey clie11t, attorney WOl'k product, witness statement and party communication privileges, I Tue Defendant further objects to this Request as being over broad, vague, ambiguous and outside the scope of proper discovery. See Loftin v. Marlin, 776 S.W.2d 145, 148 (Tex. 1· 1989). I The Defendant further objects to this Request as being outside the scope of discovery as it concerns matters that are not relevant to the irurtant litigation nor is the request reasonably calculated to lead to the discove1y of admissible evidence pursuant to the I ! Texas Rules of Civil Procedure. I The Defendant furtl1er objects to this interrogatory in that the Plaintiff bas the burden of proof to evince that relevant to any issue in this cause. In order for the Plaintiff to recover under their DIM claim, they must prove that the purported I underinsnred/uninsured motorist negligently caused the accident that resulted .in tbeir j" purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wel/tsch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied).  . i' The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in tlus cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinily Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Soulhern Fmw Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under I· ihe underlying liability claim remains undetermined. See M01yland Am. Gen. Ins. Co, v, !·· ',. ; Blackmon, 639 S.W.2d455, 457-58 (Tex.1982). f~ Without waiving said objections, Defenda11t refers Plaintiff to photographs produced as ''·· Exhibit 1. I Without waiving said objections, Defendant refers Plaintiff to Police Report, produced as i I1· Exhibit2. I I' 2. All written documentation of any investigation or reconstrnction of the collision (other ; i than those conducted by govemmental/law enforcement entities or retained experts) from which this lawsuit arises. ! I' RESPONSE: I ;. The Defendant objects to this request as it is overly broad, vague and unduly j burdensome. The Defendant further objects to this request on the grounds it violates ihe attorney client, i I attorney work product, witness statement and party communication privileges, t·· I Defendant objects to this Request as being outside the scope of discovery as it concerns rI matters that al'e not relevant to the instant litigation nor is the request rea%nably I. I calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of ! Civil Procedure. u r.: The Defendant further objects to this request to the extent that the documents called for fuerein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, I 7 S.W.3d 652, 653-54 (Tex. 2000). The Defendant fmiher objects as Plaintiff is not entitled to discoveiy of privileged information regarding bad-faith cltrims so long as the insurance company's liability under  - - - - - - - - - - - - - - --, the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). Without waiving said objections, see documents attached. 3. All photographs, motion pictures, video recordings, maps, drawings, charts, diagrams, measurements, surveys, or other documents concerning the events and happenings made the basis of this lawsuit, the vehicles in question, the scene of the collision at issue, or the urea, persons, or objects involved either made at the time of or since the collision at issue. RESPONSE: l The Defendant objects to this request as it is overly broad, vague WJd onduly burdensome. I 1· i The Defendant further objects to this request on the grounds it violates the attorney client, attomey work product, witness statement and party cormnunication privileges. The Defendant further objects to this Request as being outside the scope of discovery as it concerns matters that are not relevant to the instant litigation nor is the request reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issne in this cause, The Plaintiff has yet to obtain judgment establishing the liability and underinsnred/uninsured statns of the other motorist. Brainard v. Trini01 Universal Insurance Company, 216 S.WJd.809 (fex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (fex, 2000). 111e Defendant further objects 8B Plaintiff is not entitled to discovery of privileged information regarding bad-faith claims so long 8B the insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982). Without waiving said objections, see documents attached. 4. All surveillance movies, photographs, videotapes, electronic or digiial images, or other images of Thom8B Jackson or of the collision or scene of the collision in Defendant's or Defendant's agents' or attorneys' possession. RESPONSE: The Defendant refers Plaintiff to attached police report. 5. All incident reports (other than those created by governmental/law enforcement entities or retained experts) and/or witness statements relating to or discussing the collision made the basis of this lawsuit and/or the injuries that Plaintiff claims resulted from said collision. RESPONSE: 1:' i The Defendant objects to this request as it is overly broad, vague and unduly I:: burdensome. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and par(y communication privlleges. The Defendant further objects to this Request as being outside fue scope of discove1y as it concerns matters that are not relevant to the instant litigation nor is the request reasonably calculated to lead to !be discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this request to the extent tl1at the documents called fo:t therein is JJ.ot relevant to any issue in thls cause. The Plaintiff has yet to obtain judgment es!J3.blishing the liability and underinsured/uninsurcd status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Campany, 17 S.W.3d 652, 653-54 (Tex. 2000). 'j.,, The Defendant further objects as Plaintiff is not entitled to discovciy of privileged in:foI111ation regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Ca. v. Blaclanon, 639 S.W.2d 455, 457-58 (Tex. 1982). Without waiving said objections, see documents attached, 6. All correspondence, memoranda, reports, e-mails, fucsimile transmissions, and all other documents evidencing communications regarding the insuraoce claim(s) or any aspect of said claim(s) that is the subject of Ibis litigation between Defendant and its (a) adjusters, I (b) employees, (c) officers, (d) agents,€ representatives,(!) independent adjusters (other than those retained for !be purpose of litigation), and/or (g) independent adjusting firms I (otheI !ban those l'etained for the purpose of litigation). ' ! RESPONSE: The Defendaot objects to this request as it is overly broad, vague and unduly burdensome. --------------~··-, ' I ..... -.·1 ·.T - - - - - - - - - - - - - - ' The Defendant further objects to this req11est on the grounds it violates the attorney client, attorney work product, wit11ess statement and party communication privileges. The Defendmt further objects to this request to the extent that it is outside the scope of discovery a.s it regards matters that are not relevant to the subject matter of this present lawsuit, seeks infmmation which is not relevant to the claims asse11ed by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuari to the Texas Rules of Civil Procedure. The Defendant further objects to this request to the extent that the documents called for ; therein is not relevant to any issue Jn this cause. The Plaintiff has yet to obtain judgment I· establishing the liability and underinsured/uninsured status of the other i motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.Jd.809 (Tex. r 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 Ii, S.W.3d 652, 653-54 (Tex. 2000). I 1. !r: The Defendant furU1er objects as Plaintiff is not entitled to discovery of privileged I I i info1mation regarding bad-faith claims so long as the insurance company's liability under '.~: II (; ::-: the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). IJ II ! Without waiving said objections, see documents attached. i 7. All documents regarding every telephone conversation with or regarding Plaintiff. I RESPONSE: I The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and party conununication privileges. ;: The Defendant further objects to this request to the extent 1hat it is outside the scope of L discovery as it regardJl matters that are not relevant to the subject matter of this present j lawsuit, seeks info:rmation which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendmt :further objects to this request to the extent that the documents called for therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.  ~----~~--------·-, .. I 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged 1. information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blockmon, 639 S.W.2d455, 457-58 (Tex. 1982), Ii 8. All docim1ents regarding the ammmt(s) set aside and/or placed in reserve regarding Plaintiff's claim foruninsured/underinsured motmist coverage benefits herein. I RESPONSE: I : The Defendant objects to this request as it is overly broad, vague and unduly i burdensome. The Defendant further objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not l'<;levant to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discove.ry of admissible evidence pursuant ' to the Texas Rules of Civil Procedure. T11e Defendant further objects to this request to the extent that the documents called for I therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtain judgment establishing the liability and underinSlrred/uoinsured status of the other I motorist. Broinardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17 S. W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovety of privileged information regarding bad-faith clain1s so long as the insurance company's liability under the underlying liability claim remains nndetermined. See M01yland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). The Defendant farther objects to this request on tile gronnds it violates tile attorney client, attorney work product, witness statement and pm1:y co=unication privileges. '' i I 1· i I iI  -----~----------, 9. All non-privileged investigative repmis regarding tl1e collision made the bai;is of this lawsuit including documents, memoranda, photographs, video recordings, movies, statements, reports, drawings, communications, and tangible things attached to such reports or referred to therein. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant forthcr objects to thL5 request to the extent that it is outside the scope of discovery ai; it regards matters that are not relevant to the subject matter of this present lawsuit, seeks infonnation which is not relevant to the claims asserted by the Plaintiff, r and is not reasonably calculated to lead to the discovery of admissible evidence pm·suant to the Texas Rules of Civil Procedure. .. The Defendant forther objects to this rec1uest to the extent that the documents called for ' therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Bra/n(JJ'd v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, .17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant fU.rther objects as Plaintiff is not entitled to discovery of privileged " infonnation regarding bad-faith claims so long as tl1e insurance company's liability under the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). Without waiving said objections, the Defendant refers Plaintiff to documents attached. 10. Complete and legible photocopies or audible recordings of every written or oral statement obtained by yon or on your behalf from any person designated by any party as having knowledge ofrelevant facts pursuant to Texas Rule of Civil Procedure 194.2(e). RESPONSE: Defendant will supplement response. 11. If already produced herein, a complete copy of every primary, umbrella, and excess insurance policy or agreement, including all declaratioru page(s), endorsements, ame11dments, riders, and attachments iI1 effect when the subject collision occurred and providing coverage to Plaintiff for injuries suffered in 1he subject collision. RESPONSE: The Defendant objects to 1his request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present law:mit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the Texas Rules of Civil Procedure. Defendant will supplement response. 12. All written docwuents in Defendant's possession signed by or on behalf of Plaintiff. RESPONSE: None. 13. All non--waiver agreements, reservation of right~ letters, and other documents or comm11nications regardir1g any contrnctual obligation owed to you by Plaintiff or condltion precedent to recove1y wi1h which Plaintiff must comply. RESPONSE: The Defendant objects to this request as it. is overly broad, vague and unduly burderuome. The Defendant :further objects to this request to the extent that it is outside the scope of discove1y as it regards matters that are not relevant to the subject Jnatter of this present lawmit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant ! to the Texas Rules of Civil Procedure. The Defendant further objects to this request to 1he extent that the documerds called for therein is not relevant to any iss1ie in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm .Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged info1mation regarding bad-faith claims so long as the insurance company's liability under  the underlying liability claim remains undetermined. See Marylatui Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457~58 (Tex. 1982). The Defendant further objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and party communication privileges. 14. All documents relating to any initial determination, temporary determination, tentative l.i determination, or final determination regarding whether Plaintiff's claim herein is i' payable or not payable, ; RESPONSE: 111e Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant furtber objects to this request on the gronnds it violates the attorney client, attorney work product, witness statement and party communication plivileges. The Defendant further objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to tbe subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff; and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant furtber objects to this interrogatory in that the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In order for the Plaintiff to recover under their DIM claim, they must prove that the pmported underinsured/uninsnred motorist negligently caused the accident that resulted in their purported dan1ages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Welltsch v. United Servs. Auto. Ass'n, 75 S.W.Jd 53, 57 (Tex.App.-San Antonio 2002, pet denied). II The Defundant further objects to this request to the extent that the documents called for I therein is not relevant to any ill sue in this cause. The Plaintiff has yet to obtain judgment I ~ . establishing the liability and underinsured/tu1insured status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. I .: ' 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Without waiving said objections, please see attacheddoclllllenis.  --------------, .. .; . _.. .. : .' ' 15, All documents and testimony regarding Plaintiff, Patricia Tompkins, or any aspect of the collision made the subject oflhis h1wsuit that Defendant has obtalned through the use of subpoenas and/or depositions on wdtten questions. (Plaintiff will pay a reasonable fee for photocopies ofresponsive documents.) i. RESPONSE: Plaintiff should be in possession of all medical records and other records pe1iaining lo Plaintiff. If and when Defendru1t obtains such records, Defendant will make these records available to the Plaintiff for inspection upon reasonable notice and will furnish copies to any party who requests copies at that party's expense pursuant to TRCP Rule 205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtain these records at the time they are made available to !bis Defendant by the records service. ! 16. To the extent not already produced by either pai:ty herein, all medical and/or billing ,. i' records regarding ThomM Jackson, whether obtained before or since the :filing of this lawsuit (Plfilntiff will pay a reasonable fee for photocopies of responsive documents.) RESPONSE: !. Plaintiff should be in possession of all medical records and other records pertaining to Plaintiff. If and when Defendant obtains such records, Defendant will make these I: records available to the Plaintiff for inspection upon reasonable notice and will furnish copies to any party vvho requests copies at that pru·ty' s expense pursuant to TRCP Rule 205.J(e), Additionally, Plaintiff will be given an equal oppmtunity to obtain these records at tbe time they are made available to this Defendant by the records service. 17, To the extent not already produced by Defendant herein, all documents obtained by or on behalf of Defendant through the nse of an authorization furnished to Defendant by Plaintiff. RESPONSE: Plaintiff should be in possession of all records pertaining to Plaintiff. IT and when Defendant obtains such records, Defendant will make these records available to the Plaintiff for inspection upon reasonable notice and will furnish copies to any pm:ty who requests copies at that party's expense pursuant to TRCP Rule 205.3(e), Additionally, Plaintiff will be given an equal opportunity to obtain these records at the tirne they are made available to this Defendant by fue records service.  . .. ---,,.-~----------~·~--- ··· ... ·: ~ . ··.• .,.·, . 18. All documents, records, repmts, notations, and/or memoranda regarding the Plaintiff from persons and/or entitles that compile information regarding bodily injury claims, health insurance claims, liability/property/casualty insurance claims, worker's co111pensation claims, and other :insurance claims, including but not !imi:ted to the Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or entities. RESPONSE: The Defendant objects to this request as it is av.orly broad, vague and unduly burdensome. The Defendant further objects to this request 011 the gro1inds it violates the attorney client, attorney work produc~ witness statement and party communication privileges. The Defendant further objects to this reqllest to the extent that it is outside the scope of discovery as it regards matters that arc not relevant to the subject matter of this present lawsuit, seeks informati011 which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the Texas Rules of Civil Procedure. Defendant asse1ts its pdvileges relating to computer programs, manuals, and database information to the extent that it constitutes Trade Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7v. Altai, Inc., 918 S.W.2d453, 455 (Tex.1996), RESTATEMENT (213) OF TORTS - 757, comment (b). Plaintiff has the burden of establishing the information reqi1ested herein is necessary for a fuir adjudication of th.is claim which bas not been established to date. Defendant asserts that the benefit that Plaintiff might obtain from this infmmation, if any, doe s not and cannot outweigh harm of disclosure to the defendant. See In re Leviton Mfg. Co. inc., 1 S.W.3d 898, 902 (Tex. App.-Waco 1999, odg. proceeding). 19. All peer reviews, audits, medical summaries, memoranda, notes, letters, and other documents relating to or compiled from the medical records that Plaintiff has submitted for payment pursuant to .the policy at issue herein and/or injuries that Plaintiff claims were caused by the collision made the basis of this lawsuit. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome, The Defendant further objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and party communication privileges.  The Defendant futther objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present i I lawsltlt, seeks information which is not relevant to the claims asse1ted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant I I I I' i to the Texas Rules of Civil Procedure. I,. The Defendant farther objects to this request to the extentthat the doclllllents called for I I' therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment t l r· l· i• establishing the liability and underinsured/m1insured status of the other 1I motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 I 1· S.W.3d 652, 653-54 (Tex. 2000). I I I The Defendant farther objects as Plaintiff is not entitled to discovery of privileged I ,. information regarding bad-faith claims so long as tbe insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). I I 20. All liability work-ups or reports relating to Plaintiff's claim for uninsured/underinsured I I motorist coverage benefits. I RESPONSE; I' i The Defendant objects to thls request as it is overly broad, vague and m1dnly burdensome. The Defendant ftu:fuer objects to this request on the grounds it violates the attorney client, I attomey work product, witness statement and party conununication privileges. The Defendant ftuiher objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of thi~ present lawsuit, seeks infurmation which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant ! to the Texas Rules of Civil Procedure. "!. l ,. The Defendant farther objects to thls request to the extent that the documents called for ! therein 1' not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsm:ed status of the other motorist. Brainardv. Trinity Unrversal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant farther objects as Plaintiff is not entitled to discovery of privileged infonnation regarding bad-faith claims so long as the insurance company's liability under .. :.·... -i ' ; .. I ,·_- ......... "*'"•~·" ••• ,. • ' ! •i < •• ;, the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). 21. All doc1unents relating to your use, if any, of computer software programs in reviewing, analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and 2014. RESPONSE: The Defendant objects to this request on the grounds it violates the attorney client, attorney work produCt, witness statement and party communication privileges. The Defendant further objects to this request as it is overly broad, vague and unduly b11rdensome. The Defendant further objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information wbich is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to lhe discovery of admissible evidence pursuant to lhe Texas Rules of Civil Procedure. i TI1e Defendant asserts its privileges relating to computer programs, manuals, and I database information to the extent that it constitutes Trade SeCiets and oilier proprietary I information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT Q.13) OF TORTS - 757, comment (b). Plaintiff bas the burden of establishing tbe information requested herein is necessary for a fair adjudication of thls claim which has not been established to date. Defendant asserts that the benefit that Plaintiff might obtain from this information, if any, doe s not and cannot outweigh harm of disclosure to the defendant. See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex. App.~Waco 1999, orig. proceeding). The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsuredstatus of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also llenson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). 111e Defendant further objects as Plaintiff is not entitled to discovery of privileged infurmation regarding bad-faith claims so long as tlle insurance company's liability under "• the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).  . i • • :.J I. • ..• ''. ··1 22. All documents relating to your use, if any, of computer software programs in reviewing, a11alyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that forms the basis of this lawsuit RESl'ONSE: The Defendant objects to this request on the gro11Dds it violates the attorney client, attorney work product, witness statement and party colillJlunication privileges, The Defendant further objects to this request as lt is overly broad, vague and unduly burdensome. l11e Defendant further objects to this request to the extent that lt is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks infom1ation which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rliles of Civil Procedure, Defendant asserts its p1ivileges relating to computer progran1S, manuals, and database infonnation to the extent that it constitutes Trade Secrets and other propdetary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex, 1996), RESTATEMENT (213) OF TORTS - 757, comment (b), Plaintiff has the burden of establishing the information requested herein is necessary for a fair adjudication of this claim which has not been established to date. Defendant asse1ts that the benefit that Plaintiff might obtain from this information, if any, doe s not and cannot outweigh harm of disclosure to the defendant. See In re Levi/on Mfg. Co, Inc., 1 S.WJd 898, 902 (Tex. App.-Waco 1999, orig. proceeding). The Defendant further object5 to 1hls request to 1he extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtainjndgment I I· establishlng1he liability and underinsiJredfuninsured status of the other 1. motorist, Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. I ! 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.WJd 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-faith claims so long as 1he insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen Ins. Co. v. ,. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). ! ' _., . · .... ~:-·-- < ! 23, All documents containing your policies, procedures, processes, and/or mles used by your employees to assist in their evaluation of uninsured/underinsured motorist claims. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects 1D this request on the grounds it violates tl1e attorney client, attorney work product, witness statement and party communication privileges. The Defendant further objects to tbis request to the extent tbat it is ontside the scope of discovery as it regards matters tbat are not relevant to the subject matter of 1his present lawsuit, seeks information which is not relevant to 1he claims assetted by tbe Plaintiff, i I. ; and is not reasonably calculated to lead to tlie discovery of admissible evidence pursuant to 1he Texas R11les of Civil Procedure. The Defendant further objects to tbis request to the extent tbat the documents called for therein is not relevant to any issllf) in tbis cause. The Plaintiff has yet to obtainjudg.tllent establishing the liability and underins1n-ed/uninsured status of!he other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex, 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-faith claims so Jong as fue insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am, Gen. Ins. Co, v. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). 24. All dociunents containing your policies, procedures, processes, and/or rnles 1IBed by your employees to assist in their evaluation of antomo bile collision bodily injury claims. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and party comm\!Jlication privileges. The Defendant fiuther objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, . ., ;-:. and is not reasonably calculated to lead to the discovery of admi'lsible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this request to the extent that the documents called for the1·ein is not relevant to auy issue in fuls caru;e. The Plaintiff has yet to obtain judgment establishing the liability and underinstn·ed/uninsurcd status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Iex. 2006). See also Henson 11. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). l TI1e Defendant further objects as Plaintiff is not entitled to discovery of privileged i' info1mationregarding bad-faith claims so long as the insurance company's liability under the underlying liability clalm rcmalns undetermined. See Maryland Am. Gen. Ins, Ca. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). 25. Pursuant to Texas Rule of Evidence 609(f), all documents supporting each criminal I conviction of any person identified by any party herein as having knowledge of relevant facts that you intend to use for impeachment RESPONSE: The Defendant does not have any documents in its possession, custody or control responsive to this request. 26. All reports, memoranda, and other documents related to your evaluation of any claim for be1iefits made by Plaintiff other than the claun at issue herein. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work product, witness statement and party communication privileges. The Defendant further objects to ·this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to fhe subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by fhe Plaintiff, and is not reasonably calculated to lead to fhe discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this request to the extent that the documents called for thereil1 is not relevant to any issue in this cause. The Plaintiff has yet to obtain.judgment establishing the liability and underinsured/uniusured status of the other  I - I .. -.·1 motorist. Brainardv. Trinity Universal lmmrance Company, ;>.16 S.W.3d.809 (Tex, 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). (·. The Defendant further objects as Plaintiff is uot entitled to discovery of privileged '· infonnation regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). 27. All documents relating to every initial determination, temporary detem1ination, tentative determination, or final determination regarding whether any of Plaintiff's claims other than that at issue herein Wa'l payable or notpayable. RESPONSE: l: ! The Defendant objects to this request as it is overly broad, vague and unduly burdensome. TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client, attorney work product, witlless statement and party communication privileges. ,. The Defendant further objects to this request to the extent tbat it is outside the scope of , discovery a'l it regards matters that are not relevant to 1he subject matter of this present lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl; and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to tlris request to the extenttbatthe documents called for therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and uuderirumred/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17 S.W.Jd 652, 653-54 (Tex. 2000). The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged infom1ation regarding bad-faith claimll so long as the insurance company's liability under the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. '· Blackmon, 639 S. W.2d 455, 457-58 (Tex. 1982). Without waiving said objections, please see attached documents.  I I c ' ·1 ,J I . ·: :, 'i: I. I' Ij· 28. All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you offered on April 28, 2014. RESPONSE: The Detenda11t objects to this request as it is overly broad, vague mid Ullduly burdenson1e. The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t, attorney work product, witness statement and party coll1lliunication privileges. The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured statl1s of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex. 2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of discovery as it regards matters that are not relevmit to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. WithoLtl waiving said objections, please see attached documents. 29. All documents reflecting, regarding, and/or discussing premium payments made by Plaintiff fur the automobile insurance policy in effect when the collision that is the r subject of this lawsuit occurred. RESPONSE: i ], Tue Defendant objects to this request as it is overly broad, vague arid unduly ii burdensome. ,.I· I'· The Defendant further objects to thiB request on the grounds it violates the attorney client, "1· :1 attorney work product, witness statement and party communication privileges, 1!I' !! The Defendant further objects to thiB request to the extent that it is outside the scope of !! discovery as it regards matters that are not relevant to the subject matter of 1his present ·'  I ' .. ---.-~------ci-.-c,-ccc-.-~--.-... :er ..,-..,.,,. .-~ ...----~.~...,.,....,..~~----~----~...:::r:·.:-:~c--··--;~-. lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects io this request to the extent that the documents called for therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged info1mation regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982). 30. All documents necessary to determine the name, address, telephone number, ilnmediate SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents, aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or claims review standpoint. RESPONSE: The Defendant objects to this request as it Js overly broad, vague and unduly burdensome. The Defendant further objects to this reqQest on the grounds it violates the attorney client, attorney work product, witness statement and party commllnication privileges. The Defendant further objects to this request to the extent that it is outside the scope. of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant ftuther objects to this request to tlle extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment establishing the liability and uuderinsured/uuinsured status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex. 2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex, 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-faith claiffiB so long as the insurance company's liability under  ···-·.·1 I fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). 31. All documents and/or materials pertaining to any negotiations for settlement or offers of settlement that were compiled or created prior to the time of the filing of this lawsuit. L l L· RESPONSE: I The Defendant objects to this request as it is overly broad, vague and unduly I burdensome. The Defendant further objects to this request an the grounds it violates the attorney client, attorney work product, witness statement and party communication privJleges. lile Defendant further objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff, and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant futther objects to this request to the extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing fue liability and underinsured/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17 S. W.3d 652, 653-54 (Tex. 2000). The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged infonnation regarding bad-faith claims so long as the insurance company's liability under the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). Without waiving said objections, please see attached. I 32. All documents, reports, or investigations relied upon by Defendant in denying or delaying II payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit. RESPONSE: I The Defendant objects io this request as it is overly broad, vague and nnduly burdensome. The Defendant further objects to this request 011 the grounds it violates the attorney client, attorney work product, wit11ess statement and party communication privileges.  -----~---------·-, -· ! . The Defendant furthel' objects to this request to tbe extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursnant to the Texas Rules of Civil Procedure. The Defendant further objects to this intmogatory in that the Plaintiff has the burden of proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to recover under their U1M claim, they must prove that the purported llJlderinsured/uninsured motorist negligently caused the accident that resulted in their purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied). The Defendant furilier objects to this request to !he extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment e&tablishing the liability and underinsured/uninmred status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653~54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982), 33, All documents regarding any contract that you have with any independent adjuster who performed any service on your behalf related to Plaintiff's clairuhetein. RESPONSE: The Defendant objects to this request "" it is overly broad, vague and unduly ~- bmdensotne. The Defendant further objects to this request on the grounds it violates the attorney client, attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges. The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff, and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant to the Texas Rules of Civil Procedure. .·, The Defendant further objects to this rec1uest to the extent thirt the documents called :for therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment establishing the liability and undcrinsured/uninsured status of the other motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17 I S.W.3d 652, 653-54 (Tex. 2000). i The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged information regarding bad-faith claims so long as t11e insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). 34, All documents described or utilized in responding to Plaintiffs Interrogatories, Requests for Production, and Requests for Admission. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work. product, witness statement aud party communication privileges. The Defendant fmiher objects to this request to the extent trurt it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Ci~il Procedure, The Defendant further objects to tbis request to the extent that the doctunents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and tmderinsured/uninsured status of the other i '. motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. ! 2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1 iI. ,. S.W.3d 652, 653-54 (Iex, 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-fhlth clallnB so long as the insurance company's liabilify under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). Withont waiving said objections, please see attached documents. -------------~,-------, -..~--~-. -: :j. -~~.~.:·.··. . CAUSE NO. 201-1365-A THOMAS JACKSON, § JN THE DISTRICT COURT OF Plaintiff § § vs. § 188th JUDICIAL DISTRICT § AAA TEXAS COUNTY MUTUAL § INSURANCE COMPANY § Defendant. § GREGG COUNTY, TEXAS l>EFENDANT'S OB.JECTlONS and ANSWERS TO PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES TO: Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley Street, Longview, Texas 75601. COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of Intenogatories, in accordance with the Texas Rules of Civil Procedure. Respectfully submitted, WALTERS, BALIDO & CRAJN, L.L.P. /k;~ CARLOS A. BALlDO State Bar No. 01631230 Meadow Park Tower, Suite 1500 10440 North Central Expressway, Dalli.s, TX 75231 Tel: 214-749-4805 Fax: 214-760-1670 cm1os.balido!i4wbclaw1irm.com ATTORNEY FORDEFENDANf ----, ---------------·-, I ., ; ·.· \"f<,.. .. ,., ..,,.;.;; ... CERTIFICATE OF SERVICE This is to certify that a true and conect copy of the foregoing document hru; been mailed, faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure, on December~. 2014. Via First Cf(lss U.S. Mail M. Raymond Hatcher Alan J. Robertson Sloan,. Bagley, Hatcher & Peny Law Firm 101 East Whaley Street Longview, Texas 75601 CARLOS A. BALIDO  ' I I ... .-.i !,~-· ;_ .... •.,·,'',·1'. . ··, !~.;E'~J-· . I The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of this written discovery request for the reason that they are overly broad, unduly burdensome, and harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the extent that they seek to impose a greater burden and obligation on the Defendant than is pcrmissible under the Texas Rules of Civil Procedm·e. Without waiving or limiting the foregoing general. objection, the Defendant specifically objects to Plaintiff's discovery as follows: OBJECTIONS AND ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES l. Identify each person answering these interrogatories, supplying information, and/or assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or the responses to Plaintiff's Requests for Production and/or Requests for Admission. ANSWER: The Defendant objects to this interrogatory to the extent that it is outside the scope of discove1y as it concerns matters that are not relevant to the subject matter of this present lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff, and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant to the Texas Rules of Civil Proce,, 653-54 (Tex. 2000). The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged information regarding bad"faith claims so long aB the insurance company's liability under the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982). The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and is an attempt by Plaintiff to impropeily limit Defendant's testimony. Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint Smith, Property Damage Appraisers. 7. Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit. ANSWER: TI1e Defendant objects to this request on the grounds it violates the attorney client, attorney wotlcprodiict, witness statement.and party connnunication privileges. The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this present lawsuit, it seeks information which is not relevant to the claims asse1ied by the Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this interrogatory in that the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to recover under their UIM claim, they must prove that the purported i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001); Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied), The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsmedfuninsured status of the other motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:.  . . . . .... ' ' I ~··-·· b}~··, ~~~;<~. I ..-. 2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7 S.W.3d 652, 653-54 (Tex. 2000). Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged information regarding bad-faith claims so long as the insutance company's liability under the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982). The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and is an. attempt by Plaintiff to impropedy limit Defendant's testimony. Defendimt further objects to fuis Request to fue extent that it seeks infonnation that exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1 provides that a party may request iJ1for:rnation concerning testifying expert witnesses only tlirough a request for disclosure and through deposition. Plaintiff should be in possession of all meilical records and other records pertaining to Plaintiff If and when Defendant obtains such records, Defendant will make these records available to the Plaintiff for inspection up011 reasonable notice and will furnish copies to any party who requests copies at that party's expense pursuant to TRCP Rule 205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records at the time they are made available to this Defendant by the records service. S. Identify each of your employees who played any role in evaluating Plaintiff's claim, authorized any proposed payment to be made to Plaintiff, and/ot made decisions regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff. ANSWER: Defendant objects to this Request as being over broad, vague, ambiguous and outside fue scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989). The Defendant farther objects to this request 011 the grotinds it violates the attorney client, attomey work procluct, witness statement and party communication privileges. The Defendant further objects to tliis interrogatory to the extent that it is outside the scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procec!ure. Defendant farther objects as Plaintiffs are not entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under ,.  -,---- ., the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982). The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In order for the Plaintiff to recover under their DIM claim, they must prove that the purported underinsured/uninsured motorist negligently caused the accident that resulted in their purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied) The Defendant further objects to this request to the extent that the documents called for therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut establishing the liability and underinsured/unins\lred status of the other motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex. 2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance Company and Frederick A1mour, AAA Texas County Mutual Insurance Company. 9. If you have :information that has not already beeu produced herein regarding any other claims for personal iiajury of any type fuat were made or may have bee11 made by the Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please state all information you have regarding each such claim, specifically including but not limited to; a. The date of the claim; b. The type of fue claim; c. The name oft!1e persou making the claim; d. The other parties bivalved in ti1e claim; e. The injuries claimed in the incident made the basis of this claim f. The identity of all medical providers iuvolved in treating an.y injury claimed in the incident made the basis of the claim g. Each llisurer and claim number assigned to 1he claim; and h. 111e disposition of the claim. ANSWER: The Defendaut objects to tbis request as it is overly broad, vague and unduly burdensome. Defendant objects to this Request as being outside the scope of discove1y as it concerns matters that are uot relevaut to the i11Stant litigation nor is the request reasonably  ! I ·...•ii- '~~?.. ' . '.~lrl ~-'5'il:.{,-i.: calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony. Without waiving said objectio·ru;, none. 10. Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber, offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le of Civil Procedure 194.2(e), ANSWER: The Defendant is not aware of any a\ this tirne. 11. Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that you are entitled to a credit or offset against judgment, state for each such credit/offset: a. The dollar amount; b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset. ANSWER: The Dcfeudant objects to this request as it is overly broad, vague and -qnduly burdensome. The Defendant further objects to this iutenogatory as it calls for a narrative response, and is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony. Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's 194.2. 12. State each and every fuctor which yon now contend or will contend at trial caused or contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting physical or medical conditions of the Plaintiff and, for each such factor, state in general the factual basis for your contention. · ANSWER: The Defendant objects to this request as it is overly broad, vague and l\nduly burdensome, I; I , ----------------··-, ! :~- .. ' ;~~k;,~ I Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and is an attempt by Plaintiff to improperly limit Defendanfs testimony. Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance Company does 110t have personal knowledge of how the accident occurred. Defendant refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents produced by any party. 13. If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist benefits arises, describe in gelleral the factual basis for your contention. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdenso1ne. The Defendant :futther objects to this interrogatory as it calls for a narrative response, and is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony. Without waiving said objections, Defendant AAA Texas County Mutual Insmance Company does not have personal knowledge of how the accident occurred. Defendant refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents produced by any party, Further, Defendant makes no contentious at this time. 14. lfnot already contained in documents produced herein, state all ptocedmes followed and each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the groUllds it violates the attorney client, attomey work product, witness statement and paity commU11ication privileges. The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and is an attempt by Plaintiff to impraperly limit Defendant's testimony. Defendant objects to this Request as being outside the scope of discovery as it concerns matters that are not relevant to lbe instant litigation nor is the request reasonably calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of Civil ProcedUl'e. ------------~·-, -------------~ -, ·1 ::;:/·. f .. ! The Defendant further objects to this interrogatory in that the Plaintiff has the burden of proof to evince that relevantto any issue in this cause. In order for the PJainliff to · recover under their DJM claim, they must prove that the purported um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001); Wel/isch v. United Servs. Auto. Ass'n, 75 S. W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied) The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex. 2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v. Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982). 15. List. identify, and describe all documents not already produced herein that suppo1t your contention, if any, that: a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit; b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is the subject otfuis lawsuit; and/or c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant to a term or condition offue insurance agreement that is the subject of this lawsuit. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. 'Tiie Defendant further objects to this request on the gmunds it violates the attorney client, attomey work product, witness statement and party communication privileges. The Defendant further objects to this interrogatory as it calls for a narrative response, and is an attempt by Plaintiff to improperly limit Defendant's testimony. The Defondant ftu·ther objects to this request to fue extent tliat the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment establishing the liability and underinsured/uninsured status of 1he other motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex. ··-, .I 1,;: 2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information regarding bad-faith claims so long as tl1e iasurance company's liability llllder the 1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982). Withollt waiving said objections, Defendant is not making those contentions at this time. 16. State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in previously paid personal injury protection benefits and $30,000.00 previously paid by Patricia Tompkins' insurance cartler). ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burden1mrne. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work produc~ witness statement ai1d party communication privileges. The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony. Defendant further objects to thiB Request as being outside the scope of discovery a' it concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of Civil Procedure. TI1e Defeadant further objects to this request to the extent tl1at fue documents called for therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment establishing the liability aru:l llllderinsured/uninsured status of the otber motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S,W.3d 652, 653-54 (Tex. 2000). Defendant objects a' Plaintiffs are not entitled to discovery of privileged information regarding bad-faifu claims so long as the insurance cnmpany's liability under the lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).  '•.~;-.,, ·""'''•'• •,;:_eft,,.~"·- I .' . ! ··.•1E;..• 17. If you used any computer software program to assist in the evaluation of Plaintiff's claim fo1· tminsure.16 S.W.3d.809 (Tex, 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). (·. The Defendant further objects as Plaintiff is uot entitled to discovery of privileged '· infonnation regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). 27. All documents relating to every initial determination, temporary detem1ination, tentative determination, or final determination regarding whether any of Plaintiff's claims other than that at issue herein Wa'l payable or notpayable. RESPONSE: l: ! The Defendant objects to this request as it is overly broad, vague and unduly burdensome. TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client, attorney work product, witlless statement and party communication privileges. ,. The Defendant further objects to this request to the extent tbat it is outside the scope of , discovery a'l it regards matters that are not relevant to 1he subject matter of this present lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl; and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to tlris request to the extenttbatthe documents called for therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and uuderirumred/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17 S.W.Jd 652, 653-54 (Tex. 2000). The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged infom1ation regarding bad-faith claimll so long as the insurance company's liability under the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. '· Blackmon, 639 S. W.2d 455, 457-58 (Tex. 1982). Without waiving said objections, please see attached documents. MR 33  I I c ' ·1 ,J I . ·: :, 'i: I. I' Ij· 28. All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you offered on April 28, 2014. RESPONSE: The Detenda11t objects to this request as it is overly broad, vague mid Ullduly burdenson1e. The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t, attorney work product, witness statement and party coll1lliunication privileges. The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured statl1s of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex. 2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of discovery as it regards matters that are not relevmit to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. WithoLtl waiving said objections, please see attached documents. 29. All documents reflecting, regarding, and/or discussing premium payments made by Plaintiff fur the automobile insurance policy in effect when the collision that is the r subject of this lawsuit occurred. RESPONSE: i ], Tue Defendant objects to this request as it is overly broad, vague arid unduly ii burdensome. ,.I· I'· The Defendant further objects to thiB request on the grounds it violates the attorney client, "1· :1 attorney work product, witness statement and party communication privileges, 1!I' !! The Defendant further objects to thiB request to the extent that it is outside the scope of !! discovery as it regards matters that are not relevant to the subject matter of 1his present ·' MR 34  I ' .. ---.-~------ci-.-c,-ccc-.-~--.-... :er ..,-..,.,,. .-~ ...----~.~...,.,....,..~~----~----~...:::r:·.:-:~c--··--;~-. lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects io this request to the extent that the documents called for therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged info1mation regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982). 30. All documents necessary to determine the name, address, telephone number, ilnmediate SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents, aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or claims review standpoint. RESPONSE: The Defendant objects to this request as it Js overly broad, vague and unduly burdensome. The Defendant further objects to this reqQest on the grounds it violates the attorney client, attorney work product, witness statement and party commllnication privileges. The Defendant further objects to this request to the extent that it is outside the scope. of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant ftuther objects to this request to tlle extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment establishing the liability and uuderinsured/uuinsured status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex. 2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex, 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-faith claiffiB so long as the insurance company's liability under MR 35  ···-·.·1 I fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). 31. All documents and/or materials pertaining to any negotiations for settlement or offers of settlement that were compiled or created prior to the time of the filing of this lawsuit. L l L· RESPONSE: I The Defendant objects to this request as it is overly broad, vague and unduly I burdensome. The Defendant further objects to this request an the grounds it violates the attorney client, attorney work product, witness statement and party communication privJleges. lile Defendant further objects to this request to the extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff, and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant futther objects to this request to the extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing fue liability and underinsured/uninsured status of the other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17 S. W.3d 652, 653-54 (Tex. 2000). The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged infonnation regarding bad-faith claims so long as the insurance company's liability under the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). Without waiving said objections, please see attached. I 32. All documents, reports, or investigations relied upon by Defendant in denying or delaying II payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit. RESPONSE: I The Defendant objects io this request as it is overly broad, vague and nnduly burdensome. The Defendant further objects to this request 011 the grounds it violates the attorney client, attorney work product, wit11ess statement and party communication privileges. MR 36  -----~---------·-, -· ! . The Defendant furthel' objects to this request to tbe extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursnant to the Texas Rules of Civil Procedure. The Defendant further objects to this intmogatory in that the Plaintiff has the burden of proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to recover under their U1M claim, they must prove that the purported llJlderinsured/uninsured motorist negligently caused the accident that resulted in their purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied). The Defendant furilier objects to this request to !he extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment e&tablishing the liability and underinsured/uninmred status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653~54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982), 33, All documents regarding any contract that you have with any independent adjuster who performed any service on your behalf related to Plaintiff's clairuhetein. RESPONSE: The Defendant objects to this request "" it is overly broad, vague and unduly ~- bmdensotne. The Defendant further objects to this request on the grounds it violates the attorney client, attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges. The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff, and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant to the Texas Rules of Civil Procedure. MR 37 .·, The Defendant further objects to this rec1uest to the extent thirt the documents called :for therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment establishing the liability and undcrinsured/uninsured status of the other motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17 I S.W.3d 652, 653-54 (Tex. 2000). i The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged information regarding bad-faith claims so long as t11e insurance company's liability under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982). 34, All documents described or utilized in responding to Plaintiffs Interrogatories, Requests for Production, and Requests for Admission. RESPONSE: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work. product, witness statement aud party communication privileges. The Defendant fmiher objects to this request to the extent trurt it is outside the scope of discovery as it regards matters that are not relevant to the subject matter of this present lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Ci~il Procedure, The Defendant further objects to tbis request to the extent that the doctunents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and tmderinsured/uninsured status of the other i '. motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. ! 2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1 iI. ,. S.W.3d 652, 653-54 (Iex, 2000). The Defendant further objects as Plaintiff is not entitled to discovery of privileged information regarding bad-fhlth clallnB so long as the insurance company's liabilify under the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). Withont waiving said objections, please see attached documents. MR 38 -------------~,-------, -..~--~-. -: :j. -~~.~.:·.··. . CAUSE NO. 201-1365-A THOMAS JACKSON, § JN THE DISTRICT COURT OF Plaintiff § § vs. § 188th JUDICIAL DISTRICT § AAA TEXAS COUNTY MUTUAL § INSURANCE COMPANY § Defendant. § GREGG COUNTY, TEXAS l>EFENDANT'S OB.JECTlONS and ANSWERS TO PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES TO: Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley Street, Longview, Texas 75601. COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of Intenogatories, in accordance with the Texas Rules of Civil Procedure. Respectfully submitted, WALTERS, BALIDO & CRAJN, L.L.P. /k;~ CARLOS A. BALlDO State Bar No. 01631230 Meadow Park Tower, Suite 1500 10440 North Central Expressway, Dalli.s, TX 75231 Tel: 214-749-4805 Fax: 214-760-1670 cm1os.balido!i4wbclaw1irm.com ATTORNEY FORDEFENDANf MR 39 ----, ---------------·-, I ., ; ·.· \"f<,.. .. ,., ..,,.;.;; ... CERTIFICATE OF SERVICE This is to certify that a true and conect copy of the foregoing document hru; been mailed, faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure, on December~. 2014. Via First Cf(lss U.S. Mail M. Raymond Hatcher Alan J. Robertson Sloan,. Bagley, Hatcher & Peny Law Firm 101 East Whaley Street Longview, Texas 75601 CARLOS A. BALIDO MR 40  ' I I ... .-.i !,~-· ;_ .... •.,·,'',·1'. . ··, !~.;E'~J-· . I The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of this written discovery request for the reason that they are overly broad, unduly burdensome, and harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the extent that they seek to impose a greater burden and obligation on the Defendant than is pcrmissible under the Texas Rules of Civil Procedm·e. Without waiving or limiting the foregoing general. objection, the Defendant specifically objects to Plaintiff's discovery as follows: OBJECTIONS AND ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES l. Identify each person answering these interrogatories, supplying information, and/or assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or the responses to Plaintiff's Requests for Production and/or Requests for Admission. ANSWER: The Defendant objects to this interrogatory to the extent that it is outside the scope of discove1y as it concerns matters that are not relevant to the subject matter of this present lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff, and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant to the Texas Rules of Civil Proce,, 653-54 (Tex. 2000). The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged information regarding bad"faith claims so long aB the insurance company's liability under the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982). The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and is an attempt by Plaintiff to impropeily limit Defendant's testimony. Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint Smith, Property Damage Appraisers. 7. Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit. ANSWER: TI1e Defendant objects to this request on the grounds it violates the attorney client, attorney wotlcprodiict, witness statement.and party connnunication privileges. The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this present lawsuit, it seeks information which is not relevant to the claims asse1ied by the Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant further objects to this interrogatory in that the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to recover under their UIM claim, they must prove that the purported i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001); Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied), The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsmedfuninsured status of the other motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:. MR 45  . . . . .... ' ' I ~··-·· b}~··, ~~~;<~. I ..-. 2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7 S.W.3d 652, 653-54 (Tex. 2000). Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged information regarding bad-faith claims so long as the insutance company's liability under the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982). The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and is an. attempt by Plaintiff to impropedy limit Defendant's testimony. Defendimt further objects to fuis Request to fue extent that it seeks infonnation that exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1 provides that a party may request iJ1for:rnation concerning testifying expert witnesses only tlirough a request for disclosure and through deposition. Plaintiff should be in possession of all meilical records and other records pertaining to Plaintiff If and when Defendant obtains such records, Defendant will make these records available to the Plaintiff for inspection up011 reasonable notice and will furnish copies to any party who requests copies at that party's expense pursuant to TRCP Rule 205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records at the time they are made available to this Defendant by the records service. S. Identify each of your employees who played any role in evaluating Plaintiff's claim, authorized any proposed payment to be made to Plaintiff, and/ot made decisions regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff. ANSWER: Defendant objects to this Request as being over broad, vague, ambiguous and outside fue scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989). The Defendant farther objects to this request 011 the grotinds it violates the attorney client, attomey work procluct, witness statement and party communication privileges. The Defendant further objects to tliis interrogatory to the extent that it is outside the scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procec!ure. Defendant farther objects as Plaintiffs are not entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under ,. MR 46  -,---- ., the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982). The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In order for the Plaintiff to recover under their DIM claim, they must prove that the purported underinsured/uninsured motorist negligently caused the accident that resulted in their purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied) The Defendant further objects to this request to the extent that the documents called for therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut establishing the liability and underinsured/unins\lred status of the other motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex. 2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance Company and Frederick A1mour, AAA Texas County Mutual Insurance Company. 9. If you have :information that has not already beeu produced herein regarding any other claims for personal iiajury of any type fuat were made or may have bee11 made by the Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please state all information you have regarding each such claim, specifically including but not limited to; a. The date of the claim; b. The type of fue claim; c. The name oft!1e persou making the claim; d. The other parties bivalved in ti1e claim; e. The injuries claimed in the incident made the basis of this claim f. The identity of all medical providers iuvolved in treating an.y injury claimed in the incident made the basis of the claim g. Each llisurer and claim number assigned to 1he claim; and h. 111e disposition of the claim. ANSWER: The Defendaut objects to tbis request as it is overly broad, vague and unduly burdensome. Defendant objects to this Request as being outside the scope of discove1y as it concerns matters that are uot relevaut to the i11Stant litigation nor is the request reasonably MR 47  ! I ·...•ii- '~~?.. ' . '.~lrl ~-'5'il:.{,-i.: calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure. The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony. Without waiving said objectio·ru;, none. 10. Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber, offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le of Civil Procedure 194.2(e), ANSWER: The Defendant is not aware of any a\ this tirne. 11. Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that you are entitled to a credit or offset against judgment, state for each such credit/offset: a. The dollar amount; b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset. ANSWER: The Dcfeudant objects to this request as it is overly broad, vague and -qnduly burdensome. The Defendant further objects to this iutenogatory as it calls for a narrative response, and is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony. Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's 194.2. 12. State each and every fuctor which yon now contend or will contend at trial caused or contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting physical or medical conditions of the Plaintiff and, for each such factor, state in general the factual basis for your contention. · ANSWER: The Defendant objects to this request as it is overly broad, vague and l\nduly burdensome, I; MR 48 I , ----------------··-, ! :~- .. ' ;~~k;,~ I Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and is an attempt by Plaintiff to improperly limit Defendanfs testimony. Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance Company does 110t have personal knowledge of how the accident occurred. Defendant refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents produced by any party. 13. If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist benefits arises, describe in gelleral the factual basis for your contention. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdenso1ne. The Defendant :futther objects to this interrogatory as it calls for a narrative response, and is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony. Without waiving said objections, Defendant AAA Texas County Mutual Insmance Company does not have personal knowledge of how the accident occurred. Defendant refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents produced by any party, Further, Defendant makes no contentious at this time. 14. lfnot already contained in documents produced herein, state all ptocedmes followed and each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. The Defendant further objects to this request on the groUllds it violates the attorney client, attomey work product, witness statement and paity commU11ication privileges. The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and is an attempt by Plaintiff to impraperly limit Defendant's testimony. Defendant objects to this Request as being outside the scope of discovery as it concerns matters that are not relevant to lbe instant litigation nor is the request reasonably calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of Civil ProcedUl'e. MR 49 ------------~·-, -------------~ -, ·1 ::;:/·. f .. ! The Defendant further objects to this interrogatory in that the Plaintiff has the burden of proof to evince that relevantto any issue in this cause. In order for the PJainliff to · recover under their DJM claim, they must prove that the purported um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001); Wel/isch v. United Servs. Auto. Ass'n, 75 S. W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied) The Defendant further objects to this request to the extent that the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex. 2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information regarding bad-faith claims so long as the insurance company's liability under the underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v. Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982). 15. List. identify, and describe all documents not already produced herein that suppo1t your contention, if any, that: a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit; b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is the subject otfuis lawsuit; and/or c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant to a term or condition offue insurance agreement that is the subject of this lawsuit. ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burdensome. 'Tiie Defendant further objects to this request on the gmunds it violates the attorney client, attomey work product, witness statement and party communication privileges. The Defendant further objects to this interrogatory as it calls for a narrative response, and is an attempt by Plaintiff to improperly limit Defendant's testimony. The Defondant ftu·ther objects to this request to fue extent tliat the documents called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment establishing the liability and underinsured/uninsured status of 1he other motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex. MR 50 ··-, .I 1,;: 2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information regarding bad-faith claims so long as tl1e iasurance company's liability llllder the 1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982). Withollt waiving said objections, Defendant is not making those contentions at this time. 16. State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in previously paid personal injury protection benefits and $30,000.00 previously paid by Patricia Tompkins' insurance cartler). ANSWER: The Defendant objects to this request as it is overly broad, vague and unduly burden1mrne. The Defendant further objects to this request on the grounds it violates the attorney client, attorney work produc~ witness statement ai1d party communication privileges. The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony. Defendant further objects to thiB Request as being outside the scope of discovery a' it concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of Civil Procedure. TI1e Defeadant further objects to this request to the extent tl1at fue documents called for therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment establishing the liability aru:l llllderinsured/uninsured status of the otber motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 S,W.3d 652, 653-54 (Tex. 2000). Defendant objects a' Plaintiffs are not entitled to discovery of privileged information regarding bad-faifu claims so long as the insurance cnmpany's liability under the lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982). MR 51  '•.~;-.,, ·""'''•'• •,;:_eft,,.~"·- I .' . ! ··.•1E;..• 17. If you used any computer software program to assist in the evaluation of Plaintiff's claim fo1· tminsure1 M·anda1nus of 1nandamus. {;:.""MHtter$ of=>Nature of nets to be C()rn1nanded or enforced Mandamus will !ssue only to correct a clear Since 1nandamus is intended as an extraordinary abuse of discretion for which the relater has no remedy, such interference is justified only when adequate remedy at law. parties stand to Jose their substantial rights. l Cases that cite this hen-~Severf!nce of actions 2 Cases t·l1nt cite- this hendnote Claims are properly severable if: (I) the controversy involves more than one cause of MR 75  ._ _. in re United Fire Lloyds, 327 S.W.3d 250 (2010) ..... ,.. __ ,, ___________ _____ ... ______________._________ ~---·------ .. -------------~----------"-·--·-·-··'--·--·· substantial rights by being required to prepare 1111 lnsurance for claims that might be rendered 111oot and (;..•,;Necessity of1"ort liability might have not even yet accrued. fnsnra1H':C! <-P.·,Underlnsuranct'!: exhausled cover(lge I Cases that cite th.is headnote fnsnrance ·C.,.-ii~I)crcrinination of"for1· Liabilitv: Acrjons and Seulen1cnts ~- An underinsured 1notorist (UIM) insurer is *252 Original Mandamus Proceeding. 1 under no contractual duty to pay benefits until the insured obtains a judgrnent establishing the Attorneys and Law Firms liability and underinsured status of the other Clay E. Coalson, Donnell, Abernethy & Kieschnick, 1notorist; neither requesting UIM. benefits nor Corpus Christi. TX, Jose L. Cia1nez, Donnell, Abernethy filing suit against the insurer triggers a & Kieschnick, Edinburg, TX, for Appellant contractual duty to pay. Ronald A. Ramos, Nadine Nieto, Law Offices of Ronald J Cuses that cite this headnote A. Ramos, P.C., Ada1n Poncio, Poncio Law Offices, P.C., San Antonio, TXi Bryan W. Jones, Texas Mutual Insurance Company, Austin, TX, for Appellee. IUJ Sitting: KAREN ANGELINI, Justice, REBECCA Insurance SIMMONS, Justice, MARIA LYN 13ARNARD, Justice. '-f:l'l~Uninsured or lJnderfnsurcd Motorist ('overage Opinion fnsurnnt'e i'i""'-'Necessity of Tort Lhibility 1 JnsurHfic(~ > ('.lainls rind Sett lenient Practices 0 OPINION For an insured to recover for underinsured motorist (UIM) benefits under an automobile Opinion by: REBECCA SIMMONS, Justice. insurance policy, he 1nust prove not only that the purported underinsured 1notorist negligently On February 8, 2010, relator United Fire Lloyds filed a caused the accident that resulted in the covered petition for writ of1nanda1nus, seeking to compel the trial damages, but also that all applicable policy court to (I) vacate the October 7, 2009 Order Grantino provisions have been satisfied. Plaintiffs Motion for a Bifurcated Trial, (2) vacate th: October 13, 2009 01~der Denying Defendant United Fire Lloyd's Motion to Sever and Abate Plaintiff's Extra-Contractual Claims, and (3) grant United Fire's Motion to Sever and Abate Plaintiffs Extra-Contractual Claims, We conditionally grant mandamus relief, il·i) !Vlandaxnus •0?=~i\.1odif1cntion or vacation ofjudgn1ent or order E1nployerjs automobile insurer, against which BACKGROUND employee had brought claim for underinsured The underlying suit arose from a motor vehicle accident motorist (UIM} benefits as well as bad faith involving Juan Garcia and Ramon Valverde. Garcia filed claims, had no adequate remedy by appeal with suit against United Fire for underinsured motorist respect to trial court's abuse of discretion in ("UIM") benefits under his employer's insurance policy. denying its motion to sever and abate UIM The original petition only alleged a claim for UIM claim ti·om bad faith claims, and, thus) benefits, but subsequently filed petitions added 1nandan1us relief was appropriate, as if extra-contractual (bad faith) claims. The Fomth *253 n1andamus was not granted, insurer stood to lose MR 76  ! I In re United Fire Lloyds, 327 S.W.3d 250 (2010) Amended Petition' alleged the following bad faith claims (orig. proceeding). HA trial court has no 'discretion' in in violation of the Texas Insurance Code: (1) failing to determining what the law is or applying the law to the co1nn1ence an investigation of Garcia's claim and failing facts," and "a clear failure by the trial court to analyze or to request fro1n the c!aiinant all ite1ns. statements, and apply the law correctly will constitute an abuse· of forn1s in order to properly evaluate Garcia)s claim in discretion" *254 Walker, 827 S.W.2d at 840. "To satisfy violation of section 542.055; and (2) engaging in unfair the clear abuse of discretion standard, the relater must settle1nent practices in violation of section 54 I .060:l show 'that the trial court could reasonably have reached only one decision.' '1 liberty N{;t'l Fire ins. Co. v. Akin, United Fire contends it inade a settle1nent offer in the 927 S.W.2cl 627, 630 (Tex.1996) (quoting Walker, 827 a111ount of $I 00,000 during 1nediation. I~owever, no S.W.2d at 840). However, this court will not issue a writ settletnent agree1nent was ever reached. Later, United Fire of 1nandamus if there is a clear and adequate rernedy at filed a n1otion to sever and abate Garcia's UIM claitn law. See J:Valker1 827 S.W.2d at 840. Since 1nandamus is fron1 the bad faith clain1s. As the basis for the 1notion 1 intended as an extraordinary re1nedy 1 such interference is United Fire asserted a severance was necessary because justified only when parties stand to lose their substantial the introduction of the settle1nent ofter1 the policy limits, rights. Id ar 842. and the facts concerning United Fire 1 s handling of the claim, as they relate to the bad faith claims, would prejudice United Fire in the trial of the UlM claim, and would confuse, complicate, and considerably lengthen the lf. Severance or Bifurcation? trial. Garcia then filed a 1notion for a bifurcated trial as an 171 1s1 191 Severance and bifurcation are distinct trial alternative to the severance and abate1nent. As authority procedures. Hall v. City 1!f' Austin, 450 S.W.2d 836, for his 1notion1 Garcia relied on this cou1t 1 s opinion in Jn 837--38 (Tex.1970). A severance divides the lawsuit into re Trovelers Lfr~1.·dv qj' Te.Y. Int C. .o., in which we two or more separate and independent causes. Id. concluded the trial court did not abuse its discretion in However, tbe bifurcation of a trial leaves the lawsuit bifurcating over severing the contractual claims from the intact but enables the cou1t to hear and deterrnine one or bad faith claims. See 273 S.W.3d 368. 373-75 1nore issues without trying all· controverted issues at the (Tcx ..A.pp.-San Antonio 2008, orig. proceeding). Garcia same time. fd. Claims are properly severable if (I) the contended a severance would be judicially wasteful, controversy involves 1nore than one cause of action, (2) wou!d unduly prejudice hhn, and the disposition of the the severed claim is one that would be the proper subject trial on the UlM claim would not eliminate the trial on the of a lawsuit if independently asserted, and (3) the severed bad faith clain1s. In response to the rnotion for a claim is not so interwoven with the remaining action that bifurcated h·ial, United Fire asserted that a UIM claim is they involve the satne facts and issues. 6..,u.ar. red. .\[n1. differe11t fron1 other types of contractual insurance clai1ns Bank v. 1-Jorseshoe ()perating (~o., 793 S.W.2d 652, 658 because there is no contractual duty to pay benefits until (Tex. 1990). "The controlling reasons for a severance are the insured obtains a judg1nent establishing liability and to do justice, avoid prejudice, and further convenience." the underinsured status of the other 1notorist. Therefore 1 Id United Fire claimed no bad faith claiins had yet accrued, 1101 Contractual clailns based on an insurance policy and and the trial on the tJJM claim would control the outcome of the bad faith clai1ns. After a hearing, the trial couit bad faith claims are by their natme independent. Akin, granted Garcia's motion for a bifurcated trial and denied 927 S.W.2d at 629. 1'But, in 111ost circumstances, an United Pire Lloyd's 1notion to sever and abate. This insured 1nay not prevail on a bad faith claim without first petition for writ of 1nandamus ensued. showing that the insurer breached the contract." Id. In Akin, the Texas Supreine Court concluded that a severance 1nay be necessa1y in some bad faith cases. Id. at 630. For instance, when evidence is admissible only with regard to the bad faith claim and would prejudice the ANALYSIS insurer to such an extent that a fair trial on the contract claim would become unlikely. Id. I. Standard Ill of Review Following Akin, numerous intermediate cou1ts of appeals 12 1 lll 141 1-1 161 . Mandamus will issue only to correct a .:i have considered whether it is an abuse of discretion for a clear abuse of discretion for which the relator has no trial court to refuse to order a severance of contractual adequate remedy at law. {n re Prudential In'"!'. Co. q/'Arn., claims from bad faith claims when a settle1nent offer has 148 S.W.3d 124. 135 (J'ex.2004) (orig. proceeding); been made. &e, e.g., Tn re Miller, 202 S.W.3d 922, Walker v. Packer, 827 S.W.2d 833, 839·40 (fex.1992) _______________9_2_5_-~.~Cfe~~.P.::~~~~~!.:.p~.~95?.:~ 01·ig. proceeding (tnan~. ·f,.\-si\~~·:1'/~Jext © '.t::013 Thomson Reuters. l\Jo clain1 to original U,S. Gover11n1eni: VVorks. 4 MR 77  -------------------,--------, In re U ni:e~ ~1~€)-~".Y_d_•,_327 S.W.3d_:250_(2_0_10)____ - - - - - - - - - - - - · · - - ·-·-···-········ ....- ..·-·-----·-·-···-···-·-·-··--·· denied] ); In re Al!sliite Tex. Lloyds, No. determined. 14 05--00762-·CY, 2005 WL 2277134, at * 4 See Brainard, 216 S.W.3d at 818 (citing Flenson v. S. (Te,,App.-Houston [14th Dist] Sept. 2, 2005, orig, F'ann B11reau C'as. fns. (~o., 17 S. W.3d 652. 654 proceeding) (1ne1n. op.); /11 re Allstate !ndem. C'o., (Tex.2000)).'1 Therefore, "the UIM insurer is under no 05--03-01496-··CV, 2003 WL 22456345, at *1 contractual duty to pay benefits until the instn·ed obtains a (Tex.App.-Dallas Oct. 30, 2003, orig. proceeding) (mem. judgment establishing the liability and underinsured status op.); [11 re Jrinir,v Universal Im. Co., 64 S.W.3d 463, 468 of the other motorist.... Neither requesting UIM benefits (Tex.A_pp.-An1arillo 2001: orig. proceeding [1nnnd. nor filing suit against the insurer triggers a contractual de11it'.d] ). Eventually. parties began seeking bifurcation of duty to pay." Id the contractual clai1ns fro1n the bad faith clain1s as an alternative to severance. See Jn re Travelers, 273 S.W.3d 13 1 1 Therefore1 in order for Garcia to recover under his t)t 373~ 0 75: Jn re Allstate Tex. lioyd':i. 202 S.W.3d 89.5, VIM claim, he 1nust prove not only that the purported 901) (Tex.App.-Corpus Christi 2006, orig. proceeding underinsured 1notorist negligently caused the accident that [mane!. denied] ) (concluding plaintiffs failed to meet their resulted in the covered damages, but also that all burden that they would be prejudiced by the bifurcation of applicable policy provisions have been satisfied. See contractual claitns under a homeowner's insurance policy dllstatit !ns. (~o. v. BonJ1er, 5 l S.W'.Jd 289, 291-·92 and bad faith claiins instead of severing and abating the ('fex.2001); ~Velli.<>ch v. l.lniled /:/ervs. Auro. As.s'n. 75 c!ain1s). But we are only aware of a few cases in the S.\.V,3d 53. 57 CI'ex.App.~Snn Anlonio 2002, peL denied) context of a U ! M claiin that have considered whether (holding that because an insurer is not obligated to pay severance and abate1nent is necessary over bifurcation. U!M benefits until the insured becomes legally entitled to /)ee In re ,..fl/stale Prop. and ("as. fns. C'o., No, those benefits, an insurer has the right to withhold 02--07--0014 l··CV. 2007 WL I 574964, nt *I payment of UIM benefits until the insured's legal ('rex.App.-Fort V·/orth Muy 30, 2007) 01ig. proceeding) entitlement is established). As a result, United Fire (mcm. op.) (holding it was an abuse of discretion to contends the trial court abused its discretion in bifurcating bifurcate *255 instead of severing and abating the UIM rather than severing and abating because it is disputed claim from the bad faith claims); In re Allstate County whether there is a covered loss. United Fire argues it M111. Ins. Co .. 209 S.W.3d 742, 746-47 (Tcx.App.-Tyler should not be required to prepare for a trial on bad faith 2006. orig. proceeding) (concluding lt was an abuse of claims when it has no contractual duty to pay the UIM discretion to bifurcate instead of severing the UIM .clai111 claim until Garcia obtains a judgment establishing the fi·om the bad faith clain1s). However, these cases fail to underinsured motodst's liability and underinsured status. discuss the necessity of severance and abatement rather than bifurcation in the context ofa U!M claim. Garcia responds tliat it is not disputed that he has a covered loss and the bad faith claims will not be mooted 1111 11'1 Jn a UIM case, "[t]he UJM insurer is obligated to by a trial on the UIM claim; therefore, this court should pay damages which the insured is 'legally entitled to hold the trial court did not abuse its discretion in recover' from the underinsured 1notorist." Brainard v. 5 bifurcating the trial rather than severing and abating: Trinitv llniversa! Ins. c~o., 216 $.\V.3d 809, 818 Garcia relies *256 primarily on fn re Travelers to support (Tcx.l006J (citing TEX. INS.CODE art. 5.06-1(5)). In his argument. See 273 S.W.Jd at 373-·~75. However, we do Brainard, the Texas Supreme Court expounded on the not find In f'(! Travelers controlling because it was not a uniqueness of a UIM case as follows: UIM case. Id In re Jf•r,n,elers involved a suit filed by homeowners against their homeowners' insurance carrier The UJM contract is unique for breach of contract and bad faith for mishandling their because) according to its tenns, claim. Id. at 370. This court concluded that "[b]ecause the benefits are conditioned upon the trial of the [plaintiffs'] extra,contractual claims Is insured 1 s legal entitlement to unaffected by the outcoine of their contractual clahn 1 a receive da111ages fro1n a third party. single bifurcated trial preceded by unified discovery and Unlike lnany first-pa1ty insurance pretrial proceedings proinotes judicial economy better contracts, in which the policy alone than severance and abate1nent." Id at 374. As a result, dictates coverage, UJM insurance this court determined the trial court did not abuse its uti Hzes tort law to determine discretion in bifurcating the case because 11 [u]nder these coverage. Consequently, the circumstances, the primary justification for abatement of insurer's contractual obligation to the extra-contractual claims-avoiding the effo1t and pay benefits does not arise until expense of conducting discovery on claims that rnay be liability and damages are rendered moot in a previous trial-is non-existent because ·; ..;;-.:f'.Je.-.:t ·'.\~) 2e:·r:;} i'"non1sorr Reuter.:~. No ciain1 to original U.S. Governnrent VVorl •I ei\J, _(.,, SIGNED on _-f"f~_:__ _ _ __ , 2015, -1-w.J!-rvi~ JUDGE PRESIDING I I j:; :,.. r-· i' Page 3 MR 137 ---~------~~-, FILED GREGG COUNT',~ TEXAS NOV 0 6 2015 CAUSE NO. 20 I 4-1365-A THOMAS JACKSON § IN THE DISTRICT COURT 0 § vs. § GREGG COUNTY, TEXAS § AAA TEXAS COUNTY MUTUAL § 1'H INSURANCE COMPANY § 188 JUDICIAL DISTRICT ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE COMP ANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT On the (., --11.-i day of __N_o_\J_._____, 2015, came to be heard Defendant AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement to Plaintiff's extra-contractual claims and causes of action. The court, after reviewing the arguments of counsel and reviewing the documents on file, is of the opinion that said motion should be DENIED. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra- contractual claims will not be severed from the underlying contract claim and the extra- contractual clail_l!~Jl!e lk... ~Ott~~ ~a*; +)"li.J -$till b~ bi~co:k~ not abated. <1.t\ -to "':ft'....;~'"" ~O\ e.c...tt1tt<:-W.= ~<\A.....'5, SIGNED this (a f'h day of No u , 2015. JUDGE PRESIDING ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT- Solo Page #14872448/77325 MR 138