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 ., ; ·.·
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.. ,.,
..,,.;.;; ...
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 , ----------------··-,
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;~~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.
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·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).
'•.~;-.,,
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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
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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'. . ··,
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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
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. '.~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 , ----------------··-,
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;~~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
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·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
in Re: AAA Texas County Mutual Insurance Company
Combined Opinion