in Re: AAA Texas County Mutual Insurance Company

ACCEPTED
12-15-00277-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/2/2015 5:11:54 PM
Pam Estes
CLERK

CASE NO. 12- 15-00277 -CV

IN THE FILED IN
TWELFTH COURT OF APPEALS 12th COURT OF APPEALS
TYLER, TEXAS
at Tyler 12/2/2015 5:11:54 PM
PAM ESTES
Clerk

fn re t'l"l Texas County Mutua| fnsurance Company

Petition for Writ of Mandamus from Cause No. 2014-1365-A
188th District Court, Gregg County, Texas
Honorable David Brabham Presiding

REAL PARTY IN INTEREST THOMAS JACKSON'S RESPONSE
TO RELATOR'S PETITION FOR WRIT OF MANDAMUS

GLENN PtrRRY
Texas Bar No. 15801500
E-mail: sap@sloanfirm.com
JUSTIN A. SMITH
Texas Bar No. 24068415
E-mail: jsmith@sloanfirm.com
Sloan, Bagley, Hatcher & Perry
Law Firm
101 East Whaley Street
P.O. Drawer 2909
Longview, Texas 75606
Telephone: 903- 7 57 -7 OO0
Telecopier: 903-757 -7 57 4

ATTORNEYS FOR REAL PARTY
IN INTEREST THOMAS
JACKSON

December 2,2015
 ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL
1. AAA Texas County Mutual Insurance Company, Relator
Appellate Counsel for Relator Gregory R. Ave
Texas Bar No. 01448900
E -mail: Gre s. ave@wbclawfrrm.com
Jay R. Harris
Texas Bar No. 00793907
Walters, Balido & Crain, LLP
Meadow Park Tower, Suite 1500
I044O North Central Expressway
Dallas, Texas 75231
Telephone: 214-347-8310
Facsimile : 2t4'347'831 1

2. AAA Texas County Mutual Insurance Company, Relator

Trial Counsel for ßelatof Carlos Balido
Texas Bar No.O1631230
E -mail : carlos.balido@wbclawfrrm.com
Walters, Balido & Crain, LLP
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 7523L
Telephone: 214-7 49-4805
Facsimile : 214-7 60- 1670

3. ßespondent
The Honorable Judge David Brabham
Judge of the 188th Judicial District
Court of Gregg County, Texas
Gregg County Courthouse
101 E. Methvin St., Suite 408
Longview, Texas 75601
Telephone: 903-237'2588
Facsimile: 903-236-8603

I
4. Thomas Jackson, Real Party in Interest

Trial Counsel for Mr. Jackson: Glenn A. Perry
Texas Bar No. 15801500
E -mail: gap@sloanfrrm.com
Justin A.
Texas Bar No. 24068415
E -mail: ismith@sloanfi.rm.com
Sloan, Bagley, Hatcher & Perry Law
Firm
101 East Whaley Street
P.O. Drawer 2909
Longview, Texas 75606
Telephon e: 903' 7 57 - 7000
Facsimile : 903'7 57'7 57 4

l1
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL I

TABLE OF CONTENTS tu
INDEX OF AUTHORITIES V

TERMINOLOGY vu
STATEMENT OF THE CASE 1

I.The UIM Lawsuit's Inception and the Genesis of the Subject
Motion to Compel 4

II. The Motion to Sever and Abate ...... T2

STATEMENT REGARDING ORAL ARGUMENT 15

ISSUES PRESENTED 16

II. STANDARD OF REVIEW T7

III. ARGUMENT & AUTHORITY 18

I. Relator's Petition for Writ of Mandamus is Premature and
will likely be Rendered Moot.. ...........18

il. The Standard for Severance and Abatement in First Party
fnsurance Cases Involving Extra-contractual Claims 20

III. Relator Did Not Plead, Allege, Argue, or Provide Evidence
of Any Facts that Would Require Severance and Abatement,
thus the Trial Court Could Not have Abused its Discretion .....24
IV. Bifurcation Protects Relator from Inadmissible Evidence
Being Presented for Determining Third Party Fault and
Underinsured Status 34

lll
 V. The Trial Court Did Not Abuse its Discretion in Denying
Abatement 38

VI. Relator Has Failed to Establish that it has No Clear and
Adequate Remedy by Appeal in Failing to Establish that the
Trial Court Abused its Discretion or in That it Will Lose
Substantial Rights By Being Required to Conduct Discovery on
Jackson's Claims 46

VII. Relator's Requestto Vacate the November 6, 2OI5 Order on
Jackson's Motion to Compel is Improper............ ..........48

V. CONCLUSION & PRAYER .............49

CERTIFICATE OF SERVICE 53

CERTIFICATE OF COMPLIANCE 54

TABLE OF CONTENTS TO REAL PARTY IN INTEREST'S
APPENDIX ...............55

IV
 INDEX OF AUTHORITIES
CASES PAGE(S)

Liberty Nat. Fire fns. Co. v. Akin,927 S.W.2d 627
(Tex. 1966) 17, 18, 20-24, 35

Womack v. 8eruy,291 S.W.2d 677
(Tex. 1956) L7

Allstate fns. Co. v. Ifuntur,865 S.W.2d 189
(Tex.App.-Corpus Christi 1993) 17, 18, 25, 44

Progressive County MuL fns. Co. v. Parks,865 S.W.2d776
(Tex.App-El Paso 1993) T7

fn re Allstate fns. Co., 2005 WL 1114640
(Tex.App.-Texarkana M"y 12, 2OO5) 18, 34

Johnson v. Fourth Court of Appeals,700 S.W.2d 916
(Tex. 19S5) 18, 34

Walker v. Packer,827 S.W.2d 833
(Tex. 7992) 18

fn re Reynolds,369 S.W.3d 638
(Tex.App.-Tyler 2OI2) 25

fn re Trinity Univ. fns. Co.,2003 WL 22839280
(Tex.App.-Tyler Nov. 26,2003, orig. proceeding)........ ..... 25

fn re Allstate Texas Lloyds,202 S.W.3D 895
(Tex.App.-Corpus Christi-Edinburg 2006) 25

fn re Arcababa, 2013 WL 5890109
(Tex.App.-Waco October 31, 2013) 25

V
Texas Farmers fns. Co. v. Cooper,916 S.W.zd 698
(Tex.App.-El Paso 1996) 25 45-46

fn re State Farm Mut. Auto fns. Co., 395 S.W.3d 229
(Tex.App.-El Paso 2012, orig. proceeding) 26, 27,

fn re Reynolds, S.W.3d, 354
(Tex.App.-Houston h4rt'Dist.l 2003) .... 28

fn re Allstate fns. Co.,232 S.W.3d 340
(Tex.App.-Tyler 2OO7) 29,3r-34, 38-39, 42, 47

fn re Farmers Tex. MuL fns. Co., 2OII WL 4916303
(Tex.App.-Amarillo Octob er 17 , 2011) 29, 30

Liberty Nat. Fire fns. Co. v. Akin,927 S.W.2D 627
(Tex. 1996) 35

Accardo v. America First Lloyds fns. Co.,2012WL 1576022
(S.D.Tex. 2013) 40, 4r

I{amburger v. State Arm Mut. Auto fns. Co.,361 F.3D 875
4I

Aleman v. Zenith fns. Co.,343 S.W.3D 817
(Tex.App.-El Paso 2OII, no pet.) 4T

Jordan v. Fourth Court of Appeals, 701S.W.zd 644
(Tex. 19S5) 43

fn re Park Cities Bank,409 S.W.3d 859
(Tex.App.-Tyler 2013) 43

Texas Rules of Civil Procedure

Tex. R. Civ. P. 193.3 43

vl
 TERMINOLOGY

"AAA" or "Relator" Relator/Defendant, AAA Texas County
Mutual Insurance Company
"Jackson" or "ReaI Party Real Party in Interest/Plaintiff,
in Interest" Thomas Jackson
"Judge Brabham" or the Honorable Davis Brabham, 188th
"trial court" Judicial District Court, Gregg County,
Texas

vil
 STATEMENIIT OF THE CASE

It is interesting how an offending party ffiây, through grand

revisionism, portray themselves as the offended. That is exactly

what AAA Texas County Mutual Insurance Company has done in

this case. The truth is that virtually none of arguments made in

Relator's petition were made in the trial court below and not one
piece of evidence was filed with, cited to, or even mentioned in

Relator's motion to sever and abate or in Relator's attendant
arguments to the trial court. In fact, despite the attestations in
Mr. Balidos' affidavit, some of the evidence in the mandamus

record, namely the extrinsic correspondence upon which Relator

relies to characteríze their offer as one for the entire contract,

labeled MR 4 and MR 5, was neverfited with or mentioned in the

trial court at all and makes its first appearance in this case on
appeal. ,See Affidavit of Carlos Balido, pg. 2, see MR 4-MR 5.

Prior to the underlying wreck which caused Thomas Jackson

severe injury, Relator entered into a contract of insurance with

him, they took his premiums, they promised to provide him with

coverage in the event he was injured by an uninsured or
I
underinsured motorist and assumed the attendant duties of

dealing with him in good faith and fair dealing. It is undisputed
that the policy exists and provides coverage for the underlying
wreck. ^9ee
MR 187.

On June 12, 2013, Thomas Jackson was involved in an

automobile wreck. See MR 7-8. The facts of the wreck were not

disputed by Relator in the motion or in their argument on
severance and abatement. See generally MR 139-2L5. On June

12, 201fl Jackson, leaving the church where he works, was headed

west on Pliler Precise Road and came to a stop at the red light

where Pliler Precise Road intersects Judson Road. MR 7; MR 143.

When Jackson's light turned green, he entered the intersection.

MR 7, MR 143. At that same time, Patricia Tompkins was driving

north on Judson Road, disregarded the red light commanding her

to stop, entered the intersection unlawfully, and struck Jackson.

MR 7, MR I43. Jackson was transported from the scene of the

wreck by ambulance to Good Shepherd Medical Center. MR 7, MR

143. To date, Jackson has gathered evidence that he has paid or

2
incurred approximately $47,000.00 in past medical expenses
alone. MR 143.

The information relating to the wreck and Jackson's injuries

was, of course, presented to Ms. Tompkin's insurer. Ms. Tompkin's

insured tendered their policy limits of $30,000.00. MR 8-9. Nor is

there any great mystery as to why Ms. Tompkin's insurer did so,

in light of the fact that Jackson's past medical expenses alone are

approximately $17,000.00 in excess of Ms. Tompkin's policy limits.

Jackson presented his claim to Relator, providing it with the
clear facts of this case and his damages. Presumably, Relator

conducted an investigation and made their own determination of

coverage and entitlement to benefits. Based on that investigation
and determination, Relator offered $20,000.00 in excess of Ms.

Tompkin's policy limits and the PIP benefits that had already

been disbursed. MR 1.

Relator characterizes that offer as unequivocally being an

offer to settle the entirety of Mr. Jackson's contract claim,

including disputed portions of the claim, despite the fact that no

such language appears in the offer. While Jackson disagrees with
J
Relator's characterization, the truth is that for purposes of
Relator's petition these characterizations do not matter one iota.

Relator had the burden of establishing that it was entitled to

severance and abatement below and they did not do so.

Despite the fact that Jackson has contended since the filing

of this suit that the $20,000.00 offer represented an amount that

was undisputedly owed to him, Relator never pled, alleged,

argued, or contested in anyfiling prior to this mandamus that the

offer was for disputed damages and the entirety of the contract.

MR 227-228; MR 62-65; MR 93-726; MR 81-86; MR 66-80;

MR 139-182; MR 183-216. Nor did Relator offer any evidence in

support of its motion to sever and abate, let alone evidence that

Relator claimed to support its position that they had made a

settlement offer on the entirety of the contract. MR 66-80; MR

183-216. The trial court was and is entitled to hold Relator to its

burden and doing so is not an abuse of discretion.

I. The UIM Lawsuit's Inception and the Genesis of the

Subject Motion to Compel

4
 This suit was filed on July 16, 2014. MR 217-223. That suit

alleges breach of contract claims, a declaratory judgment claim,

and extra'contractual claims. Id. On October 17, 2014, Jackson's

counsel served Relator with their First Request for Admissions,

First Request for Production and First Set of Interrogatories. MR

88i See also Pet., Tab C. Thirty days later, Relator requested and

Pastor Jackson granted the first of four extensions for Relator to

respond to written discovery, extending Relator's deadline to

November 17, 2074. MR 24I. Again, on November 25, 2014,

Relator requested and was given a second extension. MR 242-

243. On December 10, 2014, Relator again requested and was

given a third extension. MR 244. On December 17, 2014, Relator

requested, and received, a fourth extension to respond to

discovery. MR 245

When Relator finally responded to discovery, their responses

were abysmal, where almost every request was objected to and

virtually no responsive information was provided. MR 87-MR 90;

MR 15-65i See also Pet., Tab C. On January 16, 2015, Jackson

filed a motion to compel, which he did not set for hearing. MR
5
236-245. In a conference following the production of their
discovery responses, Relator's asked to table the pending issues

and engage in an early mediation, given the clear facts of thrs case

and purportedly to avoid unnecessary litigation expense. MR 145,

I47, 754, 156-157. Jackson agreed and suggested mediators. ,See

rd. None of the mediators were acceptable and Relator requested

additional proposals, which Jackson provided. Id. Two months

after Relator's request for an early mediation in April, Relator

finally agreed to a mediator, with whom Jackson worked to obtain

more than a dozen available dates in June and July of 2OI5, which

were circulated to Relator. MR 156-157. Relator claimed they

rwere not available for any of these dates and requested additional

dates. MR 157. In June, Jackson again circulated more than dozen

available dates for August and September of 2OI5. See id. Relator

chose the very last available date, six months after Relator's
request for an "early mediation." See id.

It became clear to Jackson in late June that Relator's tactics
in this case were likely dilatory in nature. On July 15, 2015,
Jackson sent his motion to compel with a letter to Relator seeking
6
to confer on Relator's discovery responses and requesting a
privilege log. MR 252-260. Following that letter, Jackson's

counsel called Relator's counsel three times in an attempt to meet

and confer on discovery, with no response. MR I57-I58, MR 91.
Jackson's motion to compel was served on Relator on August 7,

2OL5 and was file marked on August 10, 2015. MR 87, MR 92.

Jackson did not, however, set the motion for hearing, in the hope

that filing the motion would prompt Relator to confer on the
disputes. It did not. Finally, on September 10, 2015, after almost

two months of attempting to confer with Relator on discovery,

Jackson set his motion to compel for hearing and served Relator

with notice of the hearing, set for October I, 2015, by both e-filing

and facsimile. MR 26I-264. Even then, however, Relator still

attempted to delay this case by filing a motion to continue
Jackson's hearing on discovery by informing the trial court that
the notice of hearing was not e-filed, even though it is clearly file

marked, and that it did not receive service of the notice via
facsimile, even though the fax confirmation sheet established that

Relator had been served on September 10, 2015. MR 161-162
7
Accordingly, the trial court denied Relator's motion for
continuance and addressed the merits of Relator's objections

Just as it did in the trial court below, Relator attempts to
misrepresent the record here, stating that:

At prior hearr I, 2015 the parties presented
to the trial court their arguments as to why
discovery as to the extra-contractual claims
should be stayed (bv ArlvÐ and why it
should not (by Jackson) . Yet, the court did
not rule [on the motion to compell until
after tlze severance and abate hearing
where the trial court then entered an order
retroactively dating back to October 1, 2OI5
directing AArt to respond to the extra-
contractual discovery requests within 45
days - which became ten days from the date
of the hearing.

SeePet. pg. 10 (emphasis added).

That assertion is blatantly false, as the transcripts to the

October 1 and November 6, 2015 hearings, which Relator chose

not to make part of the record, make perfectly clear. At the
October I, 2015 hearing:

The Court: All right. Thank yoü, Counsel.
What relief are you asking for, Mr. Smith?...
Mr. Smith: The easiest way of doing it is for
the requests and the interrogatories that
deal with the substantive underlying claim,
8
 I would ask that those objections be
overruled and they lRelator] ¡e ordered,
compelled to respond to those within 14
days....

The Court: I'm going to make that ruling.
Okay. Ail right.

Mr. Smith: With respect to the bad faith
claims, perhaps the fairest way of dealing
with that is to overrule the objections and
require a response within 30 days, or maybe
even 45 days. That will give them time to
file their motion to sever and abate. In the
event that it's granted, that discovery would
be pending in the severed claim, and they
won't have to respond to it until the
abatement is removed. In the event that it's
bifurcated, then we already have an order
that compels the production of that
information, and we can kind of keep this
thing rolling.
The Court: III make that ruling....
MR 178-179 (emphasis added); see also MR I4I (th"
chronological index identifying where in the transcript the "court's

ruling" appears).

In addition, Judge Brabham ordered, at the October 1, 2075
hearing, that Relator would produce a privilege log for each

category of discovery within the time frames cited, 14 days for the

9
discovery relating to the underlying wreck and within 45 days for

the discovery relating to the extra-contractual claims. MR 180.

That Relator's alternate reality IS purposefully crafted

cannot be doubted. Relator rwas present at the October 1, 2015

hearing, when Judge Brabham first issued his ruling on the

motion to compel. Jackson submitted his proposed order that is

identical in substance to the agreed order, which the trial court

signed on October 26, 2015, eleven (f f) aays prior to the hearing

on the motion to sever and abate. MR 270-27I. Relator itself

informed the trial court at the hearing on its motion to sever and

abate that the trial court }:rad signed an order on the motion to

compel prior to that hearing. MR 189. Last, and most telling, is

Relator's own acknowledgment of the court's October 1, 2015

ruling when Relator presented its agreed order on the motion to

compel.

The Court: So this is the order consistent
with my prior rulinfl....

[Counsel for Relator]: Yes. Your IIonor.

MR 214 (emphasis added).

10
 While Jackson is not surprised that Relator would
characterize the trial court signing the agreed order at their
request as Judge Brabham's first and only ruling on the motion to

compel, despite Relator's prior acknowledgments and, thus,

knowledge that such a characteñzation is false, the prejudice they

claim from that invented fact simply does not exist.

Relator goes on to inform this Court that "the trial court

reviewed the following discovery requests which clearly go beyond

the scope of the evidence" required to establish Ms. Tompkin's
fault and underinsured status. See Pet. at pg. 11. This also

Relator knows is false. The trial court directed t}:re parties to

review the discovery and determine if there was an agreement
regarding which discovery requests related to Ms. Tompkins' fault

and insurance status and which related to extra-contractual
claims. MR 179-180; MR 212. Jackson and Relator did confer

following the October l, 2Ol5 hearing and the discovery requests
reflected in the Agreed Orderl reflect Jackson's and Relator's

l This is also true of Plaintiffls Proposed Order, filed on October 6,20t5, since by
that time the parties had conferred and reached an agreement regarding the
discovery requests. The only disagreement at that time, and that prompted the filing
11
agreement as to which discovery requests relate to which claims.

MR 2T2.

Almost half of the requests Relator now contends the trial

court reviewed and "clearly go beyond the scope of the evidence to

establish" Ms. Tompkins' fault and underinsured status, listed on

page 12 through 2O of the Petition, are those Relator itself agreed

relate to underlying claim to establish Ms. Tompkin's fault,
underinsured status, and coverage. SeePet., Tab B; MR 168-169,

MR 212.23

II. The Motion to Sever and Abate

It is telling that the entirety of Relator's petition, which it

titles "The Motion to Sever and Abate," does not actually discuss

the motion to sever and abate or the hearing on the motion, save
of the Proposed Order, was whether the trial courÇ in ruling on the motion on
October t,20L5, overruled Relator's objections. See MRZI2; MR270-272.
2 Specifically out of Relator's list of now complained of discovery requests, the
parties agreed that Requests for Production Numbers 7, LI, L3, and 18 and
Interrogatory Numbers 5,7,9, LL, L5, and 20 relate to Ms. Tompkin's fault, fackson's
damages (and, thus, Ms. Tompkins' underinsured status), and coverage. See Pet., Tab
B; MR 270-272. Relator responded to Requests for Admission Number 14 and 18
without objection and, thus, they were not subject to the motion to compel. See id.
3
fackson has no desire to re-litigate the motion to compel or argue that which was
agreed to by the parties. However, by way of example, Request for Production
Number 11, which asks for the discovery of insurance policies which provide
coverage, which is expressly discoverable in every suit under Texas Rule of Civil
Procedure L92.3(Ð. Likewise, Request No. L8, and Interrogatories Nos. 7 and 9 ask
for information that would substantiate any claim of pre-existing injury.
1,2
for making the misrepresentation discussed above that the trial

court "did not rule" on the motion to compel until after denying

severance and abatement. See Pet. pg. I0-2I. The entirety of the

section is devoted to the motion to compel which was filed in
August and ruled on October 1, 2OI5.

Relator's motion to sever and abate filed with the trial court

below comprises seven pages and one exhibit. MR66-MR80. The

one exhibit attached to it is not any "evidence" that Relator urges
this Court to consideri rather, it is a copy of one of the cases cited

in Relator's motion. MR 73-80.

Nowhere in Relator's motion to sever and abate does Relator

argue that the trial court was required to sever and"/or abate the
case because they had made an offer to settle the entire contract

claim in offering $20,000.00, which Jackson contends was

undisputedly owed in UM/UIM coverage at the time it was made.
MR 66-72. Nowhere in Relator's motion does Relator claim they

had, in fact, made any offer to settle the entire contract claim or

that the $20,000.00 offer was not for an undisputed sum. See id.

13
 The $20,000.00 offer which Jackson contends Relator should

have paid upon their determination that it was owed, and which

Relator has attached as MRl, was not filed as evidence with their

motion and is not referenced or cited. MR 66-80. Jackson's

response to that letter demanding that the amount be paid by
Relator, MR2-MR3, was also not filed as evidence with their

motion, nor is it referenced or cited. MR 66-80.
Despite Mr. Balidos' assertion in his sworn affidavit to this
Court that the attached documents which comprise the

mandamus record are "[t]rue and correct copies of the material

documents filed with the trial court," the letter that Relator

contends it sent to Jackson and which it contends evidences that

the $20,000.00 offer was for a disputed sum on the entire contract,

labeled as MR 4-5, was never filed in the trial court at any point
time. See Affidavit of Carlos Balido, pg. 2 (emphasis added); ,See

Affidavit of Justin Smith, pg. 4-5.

t4
 STATEMEI{T REGARDING ORAL ARGUMENT
Jackson asks this Court to grant oral argument in this
matter because full discussion of the case would materially aid in

this Court's decision-making process.

15
 ISSUES PRESENTED

1. Is a UM/UIM carrier entitled to severance and abatement of

an insured's extra-contractual claims when it does not

meet its burden of establishing that the carrier made an

offer to settle the entirety of a disputed contract claim or

other compelling circumstances.

t6
 II. STANDARD OF REVIEW
"Severance of claims under the Texas Rules of Civil

Procedure rest within the sound discretion of the trial court."

Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.

1996). A trial court only abuses its discretion in failing to order a

severance "when 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...." Womack v. Berry,

291 S.W.2d677,683 (Tex. 1956). Prejudice is not presumed simply

because contract claims and extra-contractual claims are joined in

the same action and accordingly, severance is not always
mandatory. See Allstate Ins. Co. v. Ifuntur,865 S.W.2d 189, 193-

194 (Tex.App.-Corpus Christi 1993); see also Progressive County

MuL fns. Co. v. Parks, 865 S.W.2d 776, 778 (Tex.App.-trI Paso

1993). "To satisfy the clear abuse of discretion standard, the

relator must show 'that the trial court could reasonably have

t7
reached only one decision."' See id. Thus, "fflor mandamus relief to

be appropriate, the trial court must have... issueld] a decision

without basis or guiding principle in law." fn re Allstate Ins. Co.,

2005 WL 1714640, at 'kl (Tex.App.-Texarkana May 12, 2005)
(emphasis added) citing to Johnson v. Fourth Court of Appeals,

700 S.W .2d 916, 917 (Tex. 1935).

Further, a writ of mandamus will not issue "absent a clear

abuse of discretion that leaves the aggrieved party no adequate

remedy at law." Liberty Nat. Fire fns. Co. v. Akin, 927 S.W.2d

627, 629 (Tex. 1996). "Mandamus is intended to be an

extraordinary remedy, available only in limited circumstances."

See WaLker v. Packer,827 S.W.2d 833, 840 (Tex. 1992). "The writ

will issue only in situations involving manifest and urgent

necessity and not for grievances that may be addressed by other

remedies." See id.

III. ARGUMENT & AUTHORITY
I Relator's Petition for Writ of Mandamus is Premature

and will likely be Rendered Moot

18
 Before turning to the merits of why Relator's Petition should

be denied, it is important to note that, procedurally, this petition
is premature and will likely be rendered moot. The titular

contentions of Relator's petition are that "AAA has no contractual

duty to pay UIM benefits" and that "[alllowing discovery on

Jackson's extracontractual claims before a determination on

Jackson's UIM claim is an abuse of discretion." SeePet. pg 22 and

25 (emphasis added). These are also the sole contentions that
Relator made below with respect to severance and abatement.

MR187-190.

Jackson has pending now before the trial court his Motion
for Partial Summary Judgment and No Evidence Summary

Judgment which, if granted, will determine Ms. Tompkin's

liability for causing the underlying wreck, the amount of Jackson's

actual liquidated damages, and thus Ms. Tompkin's underinsured

status. ^9ee
Affidavit of Justin Smith, pg. 4

In the event Jackson's Motion for Summary Judgment is
granted, there wiII be a determination of coverage triggering

Relator's obligation to pay under Brainard and mooting Relator's
19
contention that the trial court abused its discretion in permitting

discovery prior to the determination of Ms. Tompkins' liability and

underinsured status. This Court should, therefore, lift the stay on
the underlying proceeding and deny the petition to allow the
motion for summary judgment to be decided. Alternatively, this

Court should lift the stay and withhold rendering its decision until

after the motion for summary judgment is decided. Further,
because that course of action would expedite this proceeding and

that below, in the event that this Court lifts the stay to permit the

trial court to rule on Jackson's motion for summary judgment,

Jackson would agree to a stay of Relator's obligation to produce

discovery regarding Jackson's extra-contractual claims until after
the trial court's ruling on his motion for summary judgment.

II. The Standard for Severance and Abatement in First

Party Insurance Cases Involving Extra-contractual
Claims

The Supreme Court's decision in Liberty National Ftre
fnsurance Company v. Akin is the seminal and controlling case

regarding the severance and abatement of insurance coverage or
20
breach of contract claims from extra-contractual claims. Liberty

Nat. Fire fns. Co. v. Akin,927 S.W .2d 627,629 (Tex. 1996). There

an insured brought breach of contract and bad faith claims
against her homeowner's insurer after a denial of coverage. See id,

at 628. The insurer moved to sever the breach of contract claims
from the bad faith claims, arguing that certain evidence

admissible for bad faith would be inadmissible on the contract

claim. See id. The insurer also sought to abate the bad faith claims

until the contract claim was finally resolved. See id. The trial
court denied the severance and abatement, which the appellate

court affirmed, and the case proceeded to the Supreme Cowrt. See

id.

The Supreme Court stated in Akin that "insurance coverage

claims and bad faith claims are by their nature independent." See

id. at 629. While Relator's assertion that bad faith claims can

never exist absent a preliminary determination that of coverage4

is not accurate, that is generally the case. See id. at 629. Thus, the

insurer in Akin argued exactly what Relator argued here, namely

a SeePet.pg.23
2I
that "the trial court should have required lits insured] to obtain a

favorable finding on her contract claim before proceeding with the

bad faith claim," and that abatement should be ordered "to avoid

the effort and expense of litigating a claim that may be nullified

by a judgment for the insurer on the contract verdíct." See id. T}le

insurer also argued that it was entitled to severance because it
had offered and tendered the undisputed portion of the insured's

damages. See id. at 63O

After re-iterating that severance and abatement are matters

vested in the discretion of the trial court, the Supreme Court held
the trial court did not abuse its discretion in denying the insurer's

motions for severance and abatement. See id. The Supreme Court

noted, however, that:

A severance may nevertheless be necessary
in some bad faith cases.... One example
would be when the insurer has made a
settlement offer on the disputed contract
claim. As we have noted some courts have
concluded that the insurer would be
unfairly prejudiced by having to defend the
contract claim at the same time and before
the same jury that would consider evidence
that the insurer had offered to settle the
entire dispute. While we concur with these
22
 decisions, we hasten to add that evidence of
this sort simply does not exist in this case.
In the absence of a settlement offer on the
entire contract elaim, or other compelling
circumstances, severance is not required.
Id. at 630 (emphasis addeÐ.

Thus, the Supreme Court maintained that "[t]raditionally,

severance has been reserved to the trial court's discretion, where
we leave it today." See id. at 631. Akin is the law in Texas
regarding severance and abatement of first party insurance
contractuaUcoverage claims from extra-contractual claims and the

trial court here was referred to and relied upon Akin in reaching
its decision in this case. MR193-I94.

Under Akin, there is no special rule for bad faith insurance

claims and there is but one sltuation in first party insurance

cases, whether that is homeowner's insurance or UM/UIM

insurance, that clearly requires severance. That is, if the trial

court is presented with euidence that established there rs a

settlement offer on the entire and disputed portion of a contract

claim, severance would be required to avoid undue prejudice. See

id. at 630. If the trial court is not presented with evidence that

23
established there is a settlement offer on the entire contract claim,

then, under Akin "severance is not required" and the trial court

does not abuse its discretion in refusing to order a severance. See

id. Akin was decided in 1996 and this is not new law.

The entirety of Relator's petition, unlike its motion to sever

and abate and arguments below, revolves around
contractuaVcoverage claims being severed from extra-contractual

claims when the insurer has put on evidence that a settlement

offer for the entire contract claim has been made. SeePet. p9.22-
39. Relator, however, misconstrues the evidence, contentions, and

arguments Relator presented to the trial court and, thus,
completely misses the point. Relator did not contend or make any

showing to the trial court that the rule they invoke here was
applicable.

III. Relator Did Not Plead, Allege, Argue, or Provide
Evidence of Ary Facts that Would Require Severance
and Abatement, thus the Trial Court Could Not have

Abused its Discretion

24
 Relator, as the party moving for severance and abatement,

had the burden of establishing in the trial court that severance

and abatement of the extra'contractual claims was required. fn re

Reynolds, 369 S.W.3d 638, 652-653 (Tex.App.-Tyler 2072)

(stating that "party seeking severance has the burden to show how

it will be prejudiced if severance is not granted and to present
evidence to the trial court, in camera if necessary, to support its

position .) citing tu fn re Trinity [-Iniv. fns. Co.,2003 WL 22839280,

at *2 (Tex.App.-Tyler Nov. 26, 2003, orig. proceeding) (mem. op.)

and Allstate v. fns. Co. v. I{unter, 865 S.W.zd 189, I94
(Tex.App.-Corpus Christi 1993, no writ)i see also fn re ALilstate

Texas Lloyds, 202 S.W.3d 895, 900 (Tex.App.-Corpus Christi-

Edinburg 2006) ("Rather, the burden is on the party seeking

severance to show how it will be prejudiced if the claims are tried
together and to present the evidence to the trial court, in camera if
necessary, that forms the basis of its claims. In other words,
relators must still caruy the burden of proof to show that
severance is required.")i see also fn re Arcababa, 2OI3 WL
5890109, at *8 (Tex.App.-Waco October 31, 2013); see also Texas
25
Farmers fns. Co. v. Cooper, 916 S.W.2d 698, 7OI (Tex.App.-EI

Paso 1996) ("It is and remains the movant's burden to show

specifrcally how it will be prejudiced if abatement is not ordered,

and to show concrete euidence of how defending against plaintiffs

contract claim clashes with defending against plaintiffs bad faith

claims.") (emphasis added).

Relator cites this Court to the EI Paso court of appeals

opinion in fn re State Farm Mutua| Auto fnsurance Company as

authority which, in Relator's own words, was decided "under
virtually identical circumstances," as guiding the outcome of this

matter. SeePet., pg. 32-33. Jackson agrees whole-heartedly that

the El Paso court of appeals rightly decided fn re State Farm and

that its opinion should guide this Court's determination of this
matter, just as it did the trial court's determination. MR194-195.

Jackson also agrees that the decision in fn re State Farm is
virtually identical to this case, with one very important
distinctioni the insurer there actually argued and put on evidence

that "conclusively proved" that that they had made an offer on the

entire contract claim in presenting its motion to sever and abate.
26
See In re State Farm Mut. Autu fns. Co., 395 S.W.3d 229, 232
(Tex.App.-El Paso 2012, orig. proceeding).

As here, the plaintiff in State Farm contended that payment

offered was not "an offer to settle the entire contract claim." See

id. at 236. Relying, as it was required to do, on Akin the El Paso

court held that "severance is required when an insurer offers to

settle the entire contract claim...." See id. at 234. Unlike Relator,

however, "State Farm asserted in its motion and reply, and
prouided proof to the trial court in the form of letters and
affidavits from its claims representative, that it was offering to
settle in full each of' the insured's contract claims. See id.
(emphasis added). Thus, "State Farm met its evidentiary burden

by providing the trial court with letters and affidavits from its

claims representative that conclusively proved that State Farm

offered to settle" the entirety of the insured's contract claims "and

the resulting damages therefrom." See id. at 236 (emphasis
addeÐ. Therefore, because the trial court was presented with
conclusive evidence that State Farm had made settlement offers

27
on the entirety of the insured's contractual claims, it abused its

discretion in denying severance, contrary to Akin. See id.

Similarly, in fn ïe Reynolds there was a dispute over
whether the insurer had made an offer to settle the entirety of the

contract claims under Akin, thus mandating the severance of the

insured's contractuaVcoverage and extra-contractual claims. See

fn re Reynoldq 104 S.W.3d 354, 358-360 (Tex.App.-Houston

h4rt Dist.l 2003). There, the court of appeals held that because

the insurer did t:rot " conclusively provel they offered to settle the

entire claim as required by Akin," as opposed to an offer on the

undisputed portion of the claim, the insurer failed to establish

that they \ryere entitled to severance and abatement. See id. at
359-360 (emphasis added).

Here, unlike fn re State -Farm and fn re Reynolds, Relator

did not contend in its motion or any reply that it made an offer to
settle the entire and disputed portions of Jackson's contract claim,

nor did it offer any evidence that it had done so. MR66-MR80.
Similarly, Relator did not claim at the hearing on its motion that

they had made an offer on the entirety and disputed portions of
28
Jackson's contract claim and again offere d no evidence that it
done so. See generally, MR183-2165 While Jackson disagrees

with Relator's characterization of their $20,000.00 offer6, the

characterizations, arguments and so-called evidence Relator were

not presented to the trial court, could not have been considered by

the trial court, and, thus, cannot form the basis for an abuse of

discretion. See fn re ALlstate fns. Co., 232 S.W.3d 340, 342-343

(Tex.App.-Tyler 2007) .

s The only reference Relator made to the $20,000.00 offer at the hearing on their
motion to sever and abate is located at MR I99 of the transcript. In truth, Jackson is
not certain what the argument is attempting to convey because it is nigh on
unintelligible, but it seems to be that, because Relator has no contractual obligation
to pay prior to their being a judicial determination of third party fault and uninsured
status, Relator's failure to tender the $20,000.00 Ís not a breach of contract.
6 Relator claims there is a "clear connotation" that the April 28,2014letter was to
settle a disputed contract claim, but itself is forced to rely on a document that was
not filed in the trial court below as extrinsic evidence that Relator disputed the
value of Mr. fackson's claims. See Pet. pg. 1-3. Relator's reliance on that extrinsic
evidence indicates that even Relator acknowledges that the April 28,2014letter is
not clear. Of course, the trial court could not have relied on that extrinsic evidence,
nor was it asked to rely on any evidence. The April 28,20L4letter also states that
the $20,000.00 sum was arrived at from a "review of the facts" and there are other
extrinsic facts which support fackson's position that Relator did not and could not
have disputed that he was entitled to at least $20,000.00 in damages, such as the
amount of his past medical damages, his future medical damages, the evidence of
other unliquidated damages, the clarity of Ms. Tompkins'fault for causing the wreck.
There also is likely other evidence, which has not yet been produced in discover¡
which evidences Relator's investigation of the claim and their determination that
fackson was covered and entitled to at least $20,000.00 at the time the offer was
made.
29
 This is the situation that was presented to the Amarillo

court of appeals in In re Farmers Texas Mutua| fnsurance
Company. See fn re Farmers Tex. Mut. fns. Co., 2OII WL 4916303

(Tex.App.-Amarillo October 17,2011). Farmers, as Relator did

here, filed to abate all extra-contractual claims until after the
resolution of the UIM claim. See id. at *1. Farmers, also as
Relator did here, did not raise that it had made an offer to settle
the entire contract claim. See id. at *I-2. The trial court denied
Farmers motion. See id. at *1. After the trial court's ruling,
Farmers informed the trial court that it had made "a settlement
offer to conclude [the insured's] entire contract claim" and asked

the trial court to enter an order memorializing its prior ruling for

appeal. See id. at *I-2. The Amarillo court of appeals noted that

"in a mandamus context, for a party to preserve its complaint that

the trial court failed to abate extra-contractual claims, that party

must have brought the issue to the trial court's attention...." See

id. at *I.

Farmers's mandamus petition alleges that
Judge Schildknecht clearly abused her
discretion by failing to abate Henrie's extra-
30
 contractual claims after Farmers made a
settlement offer on Henrie's entire contract
claim. As such, Farmers has failed to
preserve its complaint by failing to seek an
abatement order from the trial court on the
grounds upon which it now seeks
mandamus relief Consequently, we cannot
conclude that the trial court clearly abused
its discretion or that Farmers does not have
an adequate remedy available at law.
Having failed to establish its entitlement to
mandamus relief, we deny Farmers's
petition.
See id. at*2 (emphasis added).

Relator asserts that this Court tn fn re AIIstatu fns. Co.
"held that severance and abatement was necessary where an

insurer made an offer to settle." Pet. pg. 30. That is not the

holding of this Court tn Allstate, although the actual opinion is

instructive. In Allstate the insureds' vehicle was damaged by
"
falling tree and they submitted a claim to their insurer, Allstate.

See fn re AIIstatu fns. Co., 232 S.W.3d 340, 341 (Tex.App.-Tyler

2007). Allstate had the vehicle damage appraised and tendered a

check for $867.34, which represented the undisputed damages less

the deductible. See id. The insureds obtained their own appraisal,

which reflected greater damage, and ultimately brought suit
31
against Allstate . See rd. Allstate filed a motion to sever and abate

extra-contractual claims until the breach of contract \ryas
determined. See id. The trial court denied the motion. See id.

Allstate then made a settlement offer on the entire contract and,

thereafter, filed a motion for reconsideration with the trial court
premised on that settlement offer. See id. The motion was again

denied. See id.

This Court recognized that "[i]n considering whether the
trial court abused its discretion in denying Allstate's motion to
sever and abate, our review is limited to the record as it existed

before the trial court at the time of the decision." See id. at 343

(emphasis added). Citing to the Supreme Court's opinion ín Akin,

this Court also recognized that a "trial court has broad discretion

to sever a lawsuit into separate suits" and is only required to do so

"when there is a settlement offer on the disputed contract claim."

See id. (emphasis added).

While this Court determined that the trial court 'bould have

granted the severance," because the claims did not rely on the

same facts and were not inextricably intertwined, that alone is not
32
sufficient. See id. T}:re question in whether the trial court abused

its discretion was whether it was required to order severance
because it was presented with evidence that Allstate had made an

offer on the entire contract claim. See id.In fact, this Court noted

that "if the settlement offer represented only the undisputed

portion of the contract claim, the trial court's denial of the
severance would not be an abuse of discretion." See id. (emphasis

added). Which is, of course, exactly what Jackson has contended

since day one and which Relator made no apparent attempt to

contradict. MR 66-80; MR 183-MR 216.

There is, quite frankly, no evidence here that "conclusively

proves" that Relator made an offer for the entirety of a disputed

contract claim, as opposed to undisputed damages, and there was

certainly no evidence at all that Relator had presented or asked

the trial court to consider in conjunction with its motion to sever

and abate. Thus, consistent with the Supreme Court's opinion in

Akin, the El Paso court's opinion ín fn re State -Farm, the Houston

court's opinion ín fn re Reynold's, the Amarillo court's opinion in

In re Farmers and this Court's opinion in fn re Allstate, Relator
JJ
did not meet its burden of establishing that the severance and

abatement was mandatory and, clearly, the trial court did not
abuse its discretion by having "issueld] a decision without basis or

guiding principle in law." In re Allstate fns. Co., 2005 WL
7114640, at *I (Tex.App.-Texarkana May 12, 2005) (emphasis

added) citing to Johnson v. Fourth Court of Appeals,700 S.W.2d

916, 917 (Tex. 19S5).

ry. Bifurcation Protects Relator from Inadmissible

Evidence Being Presented for Determining Third Party

Fault and Underinsured Status

Putting aside Relator's new arguments and so-called

evidence regarding settlement under Akin, the only argument
presented to the trial court by Relator regarding severance was

that certain evidence that would be admissible with respect to
Jackson's extra-contractual claims would be inadmissible for

determining whether Ms. Tompkins' was liable and underinsured

MR66-72. That was also a concern raised in fn re Allstate and,

as this Court noted there, even if the trial court could order

severance, its refusal to do so is not an abuse of discretion. See fn
34
re Allstate, 232 S.W.3d at 343. Relator's concern does not mandate

severance here just as it did not mandate it in fn re Allstate.
Akin suggested that a trial court "may address any undue
prejudice by instructing the juty that the evidence proves nothing

with regard to the coverage of the plaintiffs claim, but may be
considered relevant only to the bad faith claim." See Liberty Nat.

Fire fnc. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). Judge

Brabham's order bifurcating the coverage claim from the
remainder of the claims provides far more protection than the

instruction suggested in Akin. In fact, the trial court's order here

complies with even the "inflexible" application rejected by Akin.

See id. at 632 (dissent) (requiring "segregation" of claims in all
first party cases, but maintaining a trial court's discretion to sever

or bifurcate, and prohibit abatement).

Nonetheless, Relator asserts that it will be prejudiced

because Jackson intends to introduce the $20,000.00 offer in the

first trial, during which the jury will determine Ms. Tompkins'
liability and underinsured status. See Pet. pg. 8-9 (... Jackson is
going to make the settlement offer the focal point by arguing to
35
the jury that it represents (f) an admission by AAA he is entitled
to UIM benefits and Q) then to the same jury in the same
bifurcated trial portion that &L\ acted in bad faith in not paying
him the per person policy limit.")(emphasis added).

To be clear, Jackson has always intended and contemplated

that Ms. Tompkins' fault and Jackson actual damages, and thus

his entitlement to UIM benefits is to be tried solely and
exclusively in the first trial. MR194-195. Jackson does not now

nor has he ever expressed an intention to introduce the $20,000.00

sum as evidence in that first trial for any reason. As Jackson

stated at the hearing below, only "after that issue lof third party

fault and underinsured statusl is tried," would there be a
"bifurcated trial on the bad faith claims and the [second] breach of

contract claim that asserts that lfu\rYsl failure to tender the

amount that [it] determined to be owed was a breach of contract

and bad faith." MR195.7 Removing the potential concern of

7 Contrary to Relator's contention, Jackson's bad faith claims are not
premised on the sufficiency or adequacy of the $20,000.00 sum, such that
Jackson will be contending that "AAA acted in bad faith in not paying him
the per person limit." Pet. pg. 9.
36
presenting evidence supporting both of these latter claims, which

arise from the same facts and involve the exact same issues,

during the first stage of the trial is exactly why Jackson proposed

and Judge Brabham ordered the bifurcation of this trial. See id.

Relator did not make any showing below, and does not make any

showing here, how the second breach of contract claim, asserting

that Relator's failure to tender the $20,000.00 offer upon Jackson's

request, and his remaining extra-contractual claims, asserting

that Relator's failure to tender the $20,000.00 which Jackson
contends and believes Relator determined to be owed following its

investigation of the claim, that "the extra-contractual claims are

not so interwoven with the contract action that they involve the

same facts and issues," such that severance of those two claims

would be proper. See MR 69.

Thus, in ordering bifurcation, evidence that is inadmissible

with respect to Jackson's claims to determine coverage remains

inadmissible and there is no prejudice to Relator in how this
matter will be tried.

37
 V. The Trial Court Did Not Abuse its Discretion in
Denying Abatement

A party cannot be entitled to an abatement if it is not
entitled to a severance that would make abatement possible. As

demonstrated above, Relator completely failed to establish its
entitlement to a severance and, thus, is also not entitled to an

abatement. However, even if Relator had established its

entitlement to severance, this Court has specifically rejected a

mandatory rule requiring abatement even where severance would

be required because the trial court was presented with evidence
that the insurer offered to settle the entire contract claim, which

was not the case here. See fn re Allstate fns. Co., 232 S.W.3d 340,

344 (Tex.App-Tyler 2007) ("We recognize that a number of our

sister courts hold that abatement is mandatory when a trial court

orders severance of extracontractual claims from contractual

claims," however, "we have avoided creating a bright line rule

requiring abatement under these circumstances.")

This Court reached this result because "a trial court should

schedule its cases in such a manner as to expeditiously resolve
38
them," and that to promote carrying out this task, the "trial court

is given broad discretion in managing its docket" which "we will

not interfere with the exercise of... absent a showing of clear
abuse." See id. Despite this Court's clear language in Allstate to

the contràyy, Relator cites to that opinion for the proposition that

this Court "held that severance and abatement is necessary where

an insurer made an offer to settle," a claim which is, as discussed

above, not accurate with respect to either severance or abatement.

SeePet. at pg. 30.

While this Court did ultimately find that abatement was

required 1n Allstate, ít rejected the notion that avoiding

potentially unnecessary discovery was sufficient by itself to

establish the necessity for abatement and relied on two additional

factors, the first being the insurer's showing that it would have to
disclose privileged and protected information and, second, the fact

that the insured's did not dispute that, if severance was ordered,

abatement should be granted. See fn re Allstate fns. Co., 232
S.W.3d 340, 344-345 (Tex.App.-Tyler 2007). This latter factor,

39
of course, is conspicuously missing from Relator's block quote of

the opinion in fn re Allstate. See id. at pg. 30 (emphasis added).

Unlike fn re Allstate, none of the factors that led this Court

to hold that abatement was required are present here. As an
initial matter, Relator offered no evidence in the trial court that
the $20,000.00 offer was for the entirety of a disputed contract

claim, thereby establishing the necessity of a severance. See infra

$IandII
Second, an adverse determination on coverage will not

negate the remainder of Jackson's claims and, thus, will not
render discovery of Jackson's extra-contractual claims and second

breach of contract claim unnecessary. As noted above, it is not
universally true that extra-contractual claims require on

determination of coverage. The only case Relator cites for the

proposition is the Southern District of Texas' 20Og opinion in Weir
v. Twin City Fire fns. Co. See Pet., pg. 26. Wief however, rwas

rejected by the none other than the Southern District of Texas in

2013 because it is not the law in Texas or even in the Fifth Circuit
when applying Texas law in UM/UIM bad faith cases. See Accardo
40
v. America First Llotrds fns. Co., 2OI2 WL 1576022, at *4-5
(S.D.Tex. 2013) reþing on Ifamburger v. State Farm Mut. Auto.

fns. Co.,361 F.3d 875,880 (5th Cir. 200¿). The duty of good faith

and fair dealing, which is imposed on all first party insurers in

Texas, does not focus on whether the claim is valid, but whether
the insurer acted reasonablyrn the handling of the claim. Aleman

v. Zenith fns. Co.,343 S.W.3d 817, 822 (Tex.App.-El Paso 2OII,

no pet.) citing to Republic fns. Co. v. Stoker, 903 S.W.zd 338, 340

(Tex. 1995). Thus, there are occasions where the insurer's

investigation reveals such evidence of the motorist's fault and

their own insured's damages where "the judicial determination
that triggers the insurer's obligation to pay is no more than a

mere formality." See id. at *5. "fn such cases, an insurer may act

in bad faith by delaying payment and insisting that the insured
Iitigate liability and damages before paying benefits on a claim."

See Accardo v. America First Lloyds fns. Co., 2O72 WL 1576022,

at *4-5 (S.D.Tex. 2013) reþing on Hamburger v. State Farm
Mut. Auto. fns. Co.,361 F.3d 875,880 (5th Cir. 2004).

4t
 Jackson believes that this is just such a case, as evidenced

by his motion for summary judgment. Further, Jackson's claim

that AAA's failure to tender the $20,000.00 offer amounts to a

breach of contract is independent of any judicial determination of

coverage. While Relator apparently would like to contest the
validity of that claim, arguing their interpretation of the offer and

whether there was a rejection and counter-offer based on

purported evidence that is not even in the record below, the truth

is that this is not an appeal from a motion for summary judgment

where the merits of Jackson's claims are at issue. Jackson's
breach of contract claim is a live claim that is not contingent on a

judicial determination of coverage and discovery of that claim is

not contingent on a judicial determination of coverage.

The first additional factor cited ín fn re AIIstaúe was the
insurer's showing that it would be required to disclose privileged
information if the extra-contractual claims were not abated. See

fn re Alhstate fns. Co.,232 S.W.3d 340, 344-345 (Tex.App.-Tyler

2007). Relator has not, however, been ordered to produce any
privile ged information for any claim.
42
 In fact, Jackson has been attempting to discover what
information Relator even contends is privileged since sending his

request for a privilege log on July 15, 2015. Jackson presumes

Relator's response to this will be that the agreed order did not
compel them to produce a privilege log on the extra-contractual

discovery until after the proceeding below was stayed by this
Court.

That, however, does not excuse or explain their failure to

produce a privilege log within fifteen (fS) of the July 15, 2015

request, as required by Texas Rule of Civil Procedure 193.3, or

prior to the hearing on Jackson's motion to compel almost eighty

(gO) days later where Relator's objections and assertions of
privilege were set for hearing and Relator was obliged to prove the

applicability of its asserted privileges. See Jordan v. Court of

Appeals, 7OI S.W.zd 644, 648-49 (Tex. 1985) ("The burden of

proof to establish the existence of a privilege rests on the one

asserting it.")i see also fn re Park Cities Bank, 409 S.W.3d 859,
868-69 (Tex.App.-Tyler 2013). Nor does it explain why Relator
did not offer any privilege log or any other evidence that supports
43
its claim that some privileged material wiII be disclosed and
thereby cause prejudice in an attempt to meet its burden in
moving for severance and abatement. MR 66-MR80

A party is not permitted to simply refuse to comply with its

obligation to produce a privilege log under Rule 193.3, or its

obligation to establish the applicability of its privileges under the

jurisprudence of the Texas Supreme Court and this judicial

district, or its obligation to meet its burden of proof in establishing

its entitlement to severance and abatement, and then claim in
seeking a mandamus that a trial judge, whose rulings have been

reasoned and fair, has abused his discretion by not finding some

amorphous prejudice which the party has refused at every single

step in the proceeding to identify or substantiate. See Allstate fns.

Co. v. Ifuntur, 865 S.W.2d 189, 794 (Tex.App.-Corpus Christi

1993) (noting that the insurer failed to carry its burden of proof in

requesting abatement where it provided "nothing more than

generalized allegations of prejudice" and "no evidence to the trial
court, in open court or for in camera review, of specific settlement

offers or the nature or contents of the allegedly privileged matters,
44
so that the trial court could determine their prejudicial/beneficial
potential.")

Which brings us to the second of the two additional factors

this Court cited in fn re AIIstaúe, specifically the insured's non-

opposition to abatement, which is conveniently omitted from

consideration when Relator quotes the Allstate opinion in its

petition. It should be clear, based on the above and the transcript

from below, that Jackson is staunchly opposed to abatement in

this case. Since the filing of this suit, Relator has made every
attempt to unnecessarily delay the litigation of this matter and

this Court need only look at the facts and the actual record of
what has been filed, what has been said, and what has been done

in this case to understand exactly what game Relator is playing

here. Abatement is just one more means of delay and if permitted
poses a substantial risk of prejudice to Jackson.

As the El Paso court of appeals wrote in upholding a trial

court's denial of a UM/UIM insurer's request for abatement:

[I]f discovery in the extracontractual case is
stayed until the uninsured motorist claim is
final, years may pass. Witnesses may die or
45
 disappear, files may be lost, and memories
will undoubtedly fade. Rather than
minimizing pretrial efforts, abatement may
require that discovery be conducted twice,
as the carrier may successfully argue it
initially prepared for trial only on [the
insured'sl contractual claim, not his
extracontractual causes. Moreover, it is
possible that the entire lawsuit, contractual
and extracontractual, is subject to
disposition before trial.... [And n]umerous
pretrial rulings may effect both contractual
and extracontractual claims.

See Texas -Farmers Ins. Co. v. Cooper,916 S.W.2d 698,702

(Tex.App.-El Paso 1996).

VI. Relator Has Failed to Establish that it has No Clear
and Adequate Remedy by Appeal tn Failing to
Establish that the Trial Court Abused its Discretion or

in That it Wiil Lose Substantial Rights By Being
Required to Conduct Discovery on Jackson's Claims

As noted above, an "abuse of discretion occurs only when the

trial court's decision was without reference to guiding principles."

See Texas Farmers fns. Co. v. Cooper,916 S.W.2d 698, 702-703

(Tex.App.-Et Paso 1996). It is clear from a review of the record in

this case that the trial court here did not abuse its discretion and
46
relied on the guiding principles cited in the briefing and
arguments below, including the Texas Supreme Court's opinion in

Akin and the El Paso Court of Appeals opinion in fn re State
Farm. The simple matter of it that, despite its protestations,
contentions and the purported evidence offered here, Relator

placed none of it in front of the trial court below and, thus, simply
failed to meet its burden under existing case law.

Relator goes on, however, to claim that it has no adequate
remedy by appeal for one reason onlyi that it will be required to

engage in discovery on Jackson's remaining claims. This is exactly

the same argument Relator espouses with respect to abatement

and which this Court has held is insufficient to establish an abuse

of discretion regarding abatement. See fn re Allstate fns. Co., 232

S.W.3d 340, 343 (Tex.App.-Tyler 2OO7). Since that basis is

insufficient to establish an abuse of discretion, it is also

insufficient to establish an inadequate remedy on appe al. See id.

Jackson incorporates herein by reference Section IV, supra, }rís

arguments as to why Relator's claim that it will be required to
engage in discovery that might be unnecessary does not establish
47
an inadequate remedy by appeal and, thus, establish an

entitlement to mandamus relief.

VII. Relator's Request to Vacate the November 6, 2015
Order on Jackson's Motion to Compel is Improper

The Prayer of Relator's Petition asks this Court 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." See Pet., pg. 4I. Jackson

presumes that the order referenced is the agreed order which
Relator requested the trial court sign, after the trial court signed

Jackson's proposed order, both of which memorialized the trial
court's prior ruling on the motion to compel at the October I,2OI5

hearing.

Jackson cannot find any briefing in the Petition where
Relator has made a showing that the trial court abused its

discretion in its ruling on Jackson's motion to compel and that it is
entitled to the vacation of the agreed order, or the proposed order,

or the trial court's October I, 2015 ruling. Relator did not contest

that it was required to respond to aII of the discovery propounded
48
upon it. MR176-I77. The only question was one of timing.

MR176-177. The trial court's October I,2015 ruling and
subsequent orders are expressly tailored to work in conjunction
with any subsequent severance, abatement or bifurcation. MR
176-MR 177. Relator's attempt to vacate that order, which does
not compel them to respond if severance and abatement were
required, can only be an attempt to force Jackson to re-litigate

discovery disputes that have already been briefed, argued and

decided by the trial court, to cause yet another delay and the

unnecessary expense of time and effort by Jackson's counsel and,

thus, is improper.

V. CONCLUSION & PRAYER
Jackson has, since the inception of this suit, sought to

accommodate Relator. Jackson's efforts are maligned by Relator

here, accusing him of engaging in "procedural machinations," of
being "delusional," and misrepresenting his conduct and his

statements below. See Mtn for Emergency Relief, pg. 4; see Pet.,

pg.9-11.

49
 Far more important, however, is that the trial court provided

Relator with ample opportunities to offer its evidence and meet its

burdens. On October 1, 2015, the trial court did not overrule
Relator's claims of privilege for its failure to comply with Rule

193.3 or offer any evidence to substantiate its claims of privilege,

as it was well within its rights to do. Nor did the trial court order

that Relator respond to extra-contractual discovery prior to being

afforded forty-five (¿S) days to submit its motion for severance and

abatement, along with any and all evidence Relator deemed

material and appropriate to meet its burden. Relator does the trial

court's efforts here grave disservice by claiming that it did not rule
on Jackson's motion to compel until November 6, 2015, and thus

claiming prejudice because the court "retroactively" ruled on the

motion giving them ten days to respond, despite the Relator's own

acknowledgments that its claims are not truei by claiming that
the trial court ordered them to produce discovery that "clearly"

goes beyond the scope of discovery, even though the requests are

those that Relator itself agreed are discoverable in the underlying

claimi and, not least of all, by claiming and implying that the
50
arguments Relator makes here and the evidence it submits are

those which it presented to the trial court below in conjunction
with its motion to sever and abate, when its arguments here are

largely new and not one piece of evidence was offered by Relator to

meet its burden. Relator failed to meet its burden and the
necessary result was and is the denial of its motion to sever and
abate. That the trial court did, as it was entitled to do under the
Texas Supreme Court's opinion rn Liberty Nat. Fire fns. Co. v.

Akin, and its progeny. The trial court, in following that guidance,

did not abuse its discretion.

Therefore, Real Party in Interest Thomas Jackson

respectfully requests that this Court deny Relator's Petition for

Writ of Mandamus, lift the stay on the proceeding below, and for
any and all other relief to which he may be entitled or which the

Court deems proper.

51
 Respectfully submitted,

Sloan, Bagley, Hatcher & Perry Law
Firm
101 East Whaley Street
P.O. Drawer 29Og
Longview, Texas 75606
Telephone: 903-757-7000
Telecopier: 903'7 57 -7 57 4

By /s/ Justin A.
GLENN A. PERRY
Texas Bar No. 15801500
E' mail: gap@sloanfirm.com
JUSTIN A. SMITH
Texas Bar No. 24068415
E - mail: j smith@sloanfirm. com

ATTORNEYS FOR REAL PARTY IN
II{TEREST _ THOI\{AS JACI(SON

52
 CERTIFICATE OF SERVICE
I hereby certify that pursuant to Rule 9.5, Texas Rules of
Appellate Procedure, that a true and correct copy of the foregoing
brief \ryas served upon the following counsel electronically, through
the electronic filing manager, and via certified mail, return receipt
requested, on this the 2"d day of December, 2015:

Gregory R. Ave
Jay R. Harris
W'alters, Balido & Crain, LLP
Meadow Park Tower, Suite 1500
IO440 North Central Expressway
Dallas, Texas 7523L
Appellate Counsel for Relator

Carlos Balido
Walters, Balido & Crain, LLP
Meadow Park Tower, Suite 1500
IO44O North Central Expressway
Dallas, Texas 75231
Trial Counsel for Relator:

The Honorable Judge David Brabham
Judge of the 188th Judicial District
Court of Gregg County, Texas
Gregg County Courthouse
101 E. Methvin St., Suite 408
Longview, Texas 75601

By: /s/ Justin A. Smith
GLENN A. PERRY
Texas Bar No. 15801500
E-mail: gap@sloanfirm.com
JUSTIN A. SMITH
Texas Bar No. 24068415
E' mail: j smith@sloanfirm. com

53
 CERTIFICATE OF COMPLIA}ICE
Pursuant to Texas Rule of Appellate Procedure g.¿(ixg), the
undersigned certified that this petition complies with the type-
volume limitations of Texas Rule of Appellate Procedure
9.4(f)(ù(B). Exclusive of the exempt portions identified by Texas
RuIe of Appellate Procedure 9.4(Ð(1), this response contains 9.647
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, 14-
point text, and in Century font, using the computer program
known as Microsoft Word QOLZ version).

Acknowledged: December 2, 2Ol5

By '- /s/ Justin A. Smith
JUSTIN A. SMITH

54
 TABLE OF CONTENTS TO REAL PARTY IN INTEREST'S
APPENDIX
Description Tab MR No.

Affidavit of Justin Smith 1
Reporter's Record - Transcript of 2 MR139 - MR182
October I, 2OI5 Hearing
Reporter's Record - Transcript of 3 MR 183 - MR 216
November 6, 2075 Hearing
Plaintiffs Original Petition with 4 MR 217 - MR 226
Exhibit A - B
Defendant's Orisinal Answer 5 MR 227 - MR 228
Plaintiffs First Amended Petition 6 MR 229 - MR 235
Plaintiffs Motion to Compel Discovery 7 MR 236 - MR 245
withExhibitsA-D
Notice of Hearing on Plaintiff s Motion 8 MR 246
to Compel
Plaintiffs Response to Defendant's I MR 247 - MR 269
Emergency Motion to Reset Hearing
with Exhibit A 'C
Plaintiffs Proposed Order on Plaintiffs 10 MR 270 - MR 271
Motion to Compel

55
APPENDIX TAB 1
 AFFIDAVIT OF JUSTIN SMITH

STATE OF TEXAS s
s
COUNTY OF GREGG s

Before me, the undersigned notary, on this day personally appeared Justin Smith, the

affrant, a person whose identity is known to me. After I administered an oath to affrant, he

testif,red:

My name is Justin Smith. I am over the age of 18 years of age, of sound mind, and

capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.

I am an attorney licensed to practice law in the State of Texas and admitted to practice in

the Fifth Circuit United States Court of Appeals, the United States District Courts for the

Northern, Eastern and Southern Districts of the State of Texas, and the United States Court of
Federal Claims. I and my firm are the attorneys of record for Thomas Jackson in Cause Number

2014-1365-4, styled Thomas Jaclcpedite this proceeding, t,hat
l7 bifurcaÈion will provide any kind of protection they need
18 from the jury hearing inadmíssible evídence. That would be
L9 evidence that would be Ínadmissíble on a termínation of
20 whether the third party was 1íable and that the actual
21- damages exceeded per policy limíts. whereas, severance and,
22 abatement is going to cause a great deal of delay in this
23 case.
24 Sínce the Court retains the díscretion of
25 whab it wants to do and what it feels ís proper, we feel the
GREI,YIü FREEMA¡ü, TEXAS CSR 81?9
188TH DISTRICT COURT
]-01 E. METIÍVIN, SUITE 408
LONGVIEW, TEXAS 7560L 903 -237.2688

MR I98
 L7

t_ Court should enter ín a bifurcaEion if it feels that some

2 protection is necessary in order to protect the Defendant,'s
3 interesE but also keep this thing movíng along so that we
4 can get it resolved as quickly as possible.
5 THE COART: Thank you, Mr. Smith.
6 Bríef response, Counsel?
7 MS. R.AI¡IE.. Yes, Your Honor. Your Honor,
I this is not a motion to enforce seEtlement. This is not a
9 breach of contract. The insurer, A-?\A Texas, is under no
10 contractual duty to pay a claim brought under a UIM policy
11 until liability ís establÍshed and actual damages are proven
L2 and the tort-feasor status, period. There this is noE a
13 breach of contract c1aim.
L4 Plaintiff keeps bríngíng up the $20,000 offer
15 to settle Ëhis case. This !'ras an of f er Èo settle, plaintif f
L6 would not sign a full and final release of all claims
I7 because they wanted that to be a partíal a partial amount
18 that they only wanEed - - so t.here was no thís is no
t9 breach of contract. This i-s not a Motíon to Enforce
20 Settlement.
2L Your Honor, bifurcaEion is not proper in this
22 case. We're asking the Court to abate because of the
23 discovery that Plaíntiff has already put forth, and may
24 continue to put forth, in terms of the reqr:irements of
25 havíng to answer all the inEerrogatoríes, requests for
GREIJnV FREEIUAìI, TEXAS CSR 8L79
188TH DISTRICT COURT
t_0L E. METIÍVIN, SUITE 408
TJONGVIEW, TEXAS 7550]. 903. 237 .2688

MR I99
 18

1 production, and admíssions that have been presented to the
2 Defendant.
3 Your Honor, we just feel líke, although the
4 law is very clear on the issue, thaÈ werre not vr¡erre just
5 not there yeÈ. Thís is praintiffs first have to prove
6 that t,hey are confounded and have a judicial determinatíon
7 regarding the conditions precedent.
I THE COURT: Do you excuse me. Do you
9 agree that this is within the discretion of the court to
L0 make the decisÍon to sever and to abate?
11 MS. RÄIIVE'.- Not ín this case, your Honor,
L2 because this is not a breach of contract case. And. r
13 belíeve the courts wilr support an ord.er to dírect the court
1-4 to abate and sever the extra-conEractuar claims in this case
15 because there's been no breach of contract. There's only a
16 breach of contract if Èhere's been a judgment presented to
t7 the Defendant after the conditions precedent have been met,
18 and then the Defendant doesn't pay their judgment that's
19 owed less any credíts or offsets Ehat were made.
20 So, f mean, bottom line is if there's a trial
2L in t.his case and praintiffs are t,hey get an award of
22 damages from the jury as to as to the liability
23 established, how much Mr. ,Jackson's damages are, and that
24 the tort-feasor driver, Ms. Autrey (sic). was under she
25 was underinsured, there's going to be a boEtom line number
GREIJYTÙFREEMAN, TEXAS CSR 81?9
].88TH DTSTRICT COI'RT
rO1 E. METIil/IN, SUITE 408
r,oNGVrEW, TEXAS 7560]- 903.237 .2698

MR 2OO
 19

1 of Èhat. From that bottom line number, we,re going to
) subtract ouE the amount thaE Ms. Autrey's (sic) insurance
3 has already paid and any plp payments to offset.. Then
4 there's goíng to be a balance Ehat's owed. AAA Texas has 30
5 days Èo pay any balance that is owed. If they fail to do
5 Ehat within 30 days, that coul-d be a breach of contract.
7 THE COURT: Thank you. Counsel, bríefly
I respond to that last issue, Mr. Smíth.
9 MR. SMITH: Yes, I will. And this kind of
10 overlaps with the Special Exceptions Íssue as welI.
1_ l_ Ms. Raines keeps on saying this is not a breach of contract
I2 case, it's not a breach of contract case. Every síng1e case
13 that she cites in her motion, every single case that's cited.
L4 in our response, talks about contractual c1aíms versus
15 extra-contract,ual claims.
16 And so, you know, she says that and this
L7 was ínitiaIly thaE ít,s not a breach of contract,, Ít's not a
18 declaratory judgment, ít,s just a request for a judícial
19 determination of tiability and underinsured status- r don't
20 know how you do thaÈ without a cause of action. r mean, you
21- have to have somethíng to put t,hese things in, in ord.er to
22 put ít in front of È,he jury and have them fifl out the jury
23 verdict form. rtts not going to be a questionnaire that
24 says, you know, is she liab1e, ís she an underinsured
25 motorist. It's going Èo be in the conEext of is t,here a
GRET,YN FREEMAN, TEXAS CSR 81.79
188TH DTSTRICT COURT
101 E. METIil/IN, SUITE 408
LONGVTEhT, TEXAS 75601 903.237 .2688

MR 2OI
 20

1 breached contract. And the declaratory judgment provides
2 the framework for the remainder of it.
3 So I don't understand -- and I haven,t seen
4 any law thaÈ says that t,hese are not breach of conÈract
5 claims. Every case Èhat I,ve seen, wheEher it's cited in
6 her motion or ours, characterizes Èhís issue as contractual
7 claims versus extra-contracÈual claims.
8 And f will agree that therets some confusion
9 in the law gíven Brainard, given what Brainard saíd. is, you
10 know, you're entitled yourre legalIy entitled to recover.
11 You're legally entítled to recover when you established that
L2 the third party ís liable and that she ís an underinsured
l_3 motorist.
L4 But there's no f ramework in which t,o make
r_5 that judicial determination absent breach of contract and/or
16 declaratory judgment. There's no cause of action that says,
77 you know, are you an underinsured moÈorist status, are you
18 liable for the third party. There has to be something that
t9 you put these thíngs in ín terms of a cause of action.
20 Notrl, the last thÍng that she said r¡ùas on thís
2L contingenE claims, rig}:^iu? You can'È, have a an
22 enÈitlement to recover until you get a judicial
23 determination of the Iíabilit.y of the third parÈ,y and the
24 unínsured status. That's not any different than any other
25 contíngent claim that's broughE togebher. f mean, you think
GRELW FREEMAII, TEXAS CSR 8179
1-88TH DTSTRTCT COURT
1O]- E. METI{VIN, SUITE 408
ITONGVIEW, TEXAS 75601 903.237 .2688

MR 2O2
 2L

1 about negligence and gross negligence. The punitive damages
z question is always contíngent upon a finding of negligence
3 by unanimous verdÍct ín the underlying case.
4 And the case from EI Paso that f was quoti-ng
5 from a moment ago also brought up that íssue about, how
6 there's aII kinds of lawsuits where contingenE and
7 derívative cl-aims are brought together. And the courÈs have
I always dealt with these by either Erying them together,
9 bifurcating or severing and abating them. The fact that you
10 canlt have what you need in order to satÍsfy thís 1egalIy
l-1 entítIed to recover language ís judicial determination,
L2 therefore, bad faith claims are contingent, ís not any
13 dÍfferent than any other contingent claim.
L4 Now, f will say Èhat, there is a dífference
15 because all Ehe cases that we've been talking about, with
t6 the exception of Ehe El Paso Court of Appeals case, where
L7 they put on evidence thaE it was a settlement offer for Èhe
l_8 entire amount of the c1aim, every single one in the IIM/UIM
19 context talks abouÈ the inadequacy of the seEtlement offer.
20 fn .In Re .t'jre L'7oyds, whích is out of San
2t Antonj-o, they had made a settlement offer for g1oo,0O0 for
22 the entire contract claim at a mediation. And then after
23 that settlement offer for Ehe enti-re contract claim was
24 made, Ehey fited a Motion for Severance and Abatement. And
25 that was found to be mandatory.
GREIJII'ÀT FREEMA¡T, TEXÀ,S CSR 8179
188TH DISTRICT COT'RT
101 E. METITVIN, SUITE 408
toNGVIEW, TEXAS 75601 903.237.2688

MR 2O3
 22

1 In MiTLard, you had a bad faiEn case that was
2 premised on the perceÍved deficÍencies ín Ehe settlement
3 offer. And f think it's Malmard (phonetic), it was Ehe
4 inadequacy of the seEtlement offer thaE gave rise to the
5 severance and abaÈement.
6 Every single one of those cases you have the
1 bad faith premised on inadequacy of the settrement, offer,
I not the fact thaE. you had apparently
a determination of
9 coverage, an ínvestigation in coverage, and a determínation
10 that youlre entitred to a certain amount of money and then
11- we just don't pay it because we bry to strong-arm a fult and
T2 final release ouE of you for the undisputed amount.
13 Now, Ms. Raines wants to say that Ehat's a
L4 settrement offer for the entire amount of the contract, buE
15 she has to put on evidence that thaÈ's true because this Ís
16 her Motion for severance and Abatement, and she has to prove
L7 that E.hose elements are met. And Èhere's no evidence here
18 thaE this was a settlement offer for the ent.ire amount of
L9 the claim.
20 THE COURT: All right. Thank you, Counsel.
2L Very good work on both sídes.
22 f'm going to deny the Motion to Sever and
23 deny E,he Motion to Abate. I will bj_furcate the case.
24 Irlhere does thís leave us on Èhese Special
25 Exceptions?
GRELYN FREEMAII, TEXAS CSR 8179
188TH DISTRICT COI]RT
101 E. METT{VTN, SUITE 408
IJONGVIEIV, TEXAS 7560L 903.237 .2688

MR 2O4
 23

1 MR. SMTTH: lr1ith the Special ExceptÍons, Ehis
2 ís the confusion thaÈ u¡e were Ealking abouÈ a second. ago.
3 rÈ's either got to be a breach of conËract claim or a
4 declaratory judgment claim or both. r mean, we have to have
5 a cause of actíon to put thÍs in front of the jury.
6 Ms- Raines says iÈ's not a breach of conEract. we1l, if
7 j-t's not a breach of contracÈ, then we have to have
I something Èo put in front of the jury, cause of action. And.
9 that's why the declaratory judgment craim is pred. in there,
10 because of this confusion that aríses and. because ure have,
11 you know, statements they're saying it's not a breach of
L2 contract craim. we've got to have something as a cause of
13 action Eo bring -- to bring thís in front of the jury. rf
L4 i-t's if it's not one of those two, r have no i-dea what it
15 ís.
16 THE COURT: Ms. Raine?
L7 MS. RÄIIVE.- Your Honor, you can caII ít
L8 whatever you wanÈ to call it. Bottom line is prainËíffs do
19 not get to recover aLtorney fees on this cause of action.
20 They can leave ít they can carl ít a declaratory actíon.
2L They can call it whatever.
22 THE COURT: Is thaE what your Specj_a1
23 Exceptions address or is there other things?
24 MS. RÄÍJVE.- It addresses
25 THE COURT: Let me just say herers where r¡¡e
GREI,YTI FREEIUAN, TEXAS CSR 8179
188TH DISTRICT COURT
101 E. METITVIN, SUITE 408
rroNcvrEhl, TEXAS 75601 903.237 .2688

MR 2O5
 24

1 are, Counsel. I'm going to have Eo briefly recess us
2 because Irve got a case comíng up behind where they're going
3 to call in at 10:55. So f donrt wanÈ Eo get in a bínd here
4 on that.
5 MS. R.4ItrIE: My order to the Court was going
6 to be to granL our -- grant that plaintiff replead this case
7 Eo to Eake out the declaratory judgment and to and our
I claim for attorney's fees- So if I may approach the CourÈ?
9 THE COURT: Mr. Smith, what's your response
10 to that?
11 MR. SùIITH: f 'd like to see some law that
L2 says that you can't recover attorney's fees on a declaratory
13 judgment case ín a IIM/UIM contexE . I haven,t seen law t,hat
L4 says t.hat
15 MS. R.åIÀrE.- Your Honor,I have a Supreme
16 Court case Ehat's going to say that, if Èhis ís not a
L7 declaratory judgment, which it is not, ít is not to
18 esEablish the construction of thís of t,his policy. It's
1_9 not a itrs not asking bhe Court to establish the
20 constructive íssues of this policy- Therefore, iÈ ís noÈ a
2L declaratory judgment, and you cannot collect attorney,s fees
22 on a case that Ís not on an issue that is not declarat,ory
23 judgment. It violates the American rule that the parties
24 are responsíble for theír o\¡ûn att,orney's fees.
25 THE COURT: Mr. Smith, I mean --
GREI,YN FREEIUAÀI, TEXAS CSR 8]-79
188TH DISTRTCÎ COI'RT
101 E. METITVIN, SUITE 408
LONGVIEW, TEXAS 75601 903 .237.2688

MR 206
 25

1 MR. SMITH: I'd like to have an opportunity
2 to review the case law. And r think thís is probably
3 something we can deal wíth at a later date on, you know,
4 more fulI briefíng for the Court after frve had an
5 opportunity to look at exacEty what the issues are and
6 determine if this this is the rure in un/urM context.
7 THE COURT: How much time would you need to
I do that?
9 ¡4R. SMITH: Oh,probably a week to two weeks
10 THE COURT: A1I right.
11 MS- RA.IÀIE.- Your Honor, if f may approach I
L2 can give Ehe Court a copy of thisZ
13 THE COURT: Sure.
L4 MR. SIUIITH: Is thís copy for me, Ms. Raínes?
15 MS. RAT¡TE.. Yes.
16 THE COURT:I wíIl take that, the issue of
I7 the specíal Exceptions under advisement, give Mr. smith two
t_8 weeks to respond. And is there anything erse, counsel, vre
L9 need to do aÈ this hearing?
20 MS. RÄ.ItrIE: Your Honor, if you could sígn an
2L order today denying the Motion to Sever and. Abate.
22 THE COURT: If you have it prepared I wilI.
23 - RÄIJ\IE: Do you have an order?
MS

24 MR. SMITH: I do not have an order, but I'lI
25 present one to Ms. Raines-
GREr,nV FREEMAN, TEXAS CSR 8l_?9
188TH DTSTRTCT COURT
].01 E. METIÍVTN, SUITE 408
r,oNGVrEW, TEXAS 75601 903 -237 .2688

MR 2O7
 26

1 MS. RAIÀIE; I just vrant to make sure I walk
2 out of here wíth a signed copy today.
3 THE COURT: SuTe.
4 MS. RÀ-I¡IE.. If that.'s all right wÍth you?
5 MR. SITIITH: yeah. And we should probably put
6 in here the bifurcation, sínce that is what the Court
7 ordered to do, right?
I THE COURT: I did. y,all want to add that?
9 Y'all want to add that on the one I sign?
10 MS. RAI¡IE'.. Your Honor, standard for Court
11_ that if you sign an order can hre go and get a copy, a

I2 conformed copy of what the Court signed, or do you want us
l_3 to make copies here?
L4 THE COART: Sure. No, w€'11 get you the
15 conformed copy. But do we need to add t,he bifurcation
16 issue? Do y'aII want to work on that language here?
t7 MR. SMITH: yeah, I think thatts fine. That
18 way we've got
19 THE COURT: f tell you what I,m going to do.
20 I'm goíng to recess this hearíng and let y'alI work on that
2I order, because I've got a phone call coming Ín on this next
22 hearing. And I can come back to you if f need to go on the
23 record- ilust give me just a few minutes, okay?
24 IIIR. SMITH: Yes, Your Honor.
25 THE COURT: Okay. frm going to recess this
GRELYN FREEUAN, TEXAS CSR 8179
188TH DISTRTCT COURT
]-01 E. METI{VIN, SUTTE 408
IJONGVIEW, TEXAS 75601 903.237 .2698

MR 2O8
 27

L maE,ter, and thank you very much. We'lI come right back to
2 it íf we need to.
3 MR. SMITH: Thank you, your Honor.
4 MS. R.AIIVE; Thank you, Your Honor.
5 (Recess )

6 THE COURT: All right. Let's go back on the
7 record if we cou1d, Counsel, ín the Jackson matter.
I Have yraII worked on an order that's
9 agreeable in form at least?
10 IzIR. SI{ITH: Yes, Your Honor, f belíeve we
11 have.
L2 Ms. Raines, is that language agreeable to
l_3 you?
L4 MS. RA-IJVE.- Well, Your Honor, I just want to
15 crarify. rs your íntention Èo bifurcate Èhe Ería1 and abate
I6 the extra-contractual claims as well so $re,11 have
L7 because we berieve that we need to have a separate Erial?
18 üIe need to have a separate jury hear the extra-contractual
19 claims. Otherwíse, $rê're picking a jury for t,he underlying
20 UIM claims, but also adding in all the extra-contractual
2L claims, which, agaín, is what we are opposed to. So Irm
22 asking the court, is the court's intention to bifurcate the
23 extra-contractual claims as well as to abaÈe to abate
24 those extra-contractual claíms?
25 And for, Your Honor, we were talkíng
GREI,NV FREEMA¡I, TEXAS CSR 8179
188TH DISTRICT COURT
101- E. METITVIN, SUITE 408
IJONGVIEW, TEXAS 75601 903 -237 .2688

MR 2O9
 28

1 earlier -- f have a case for the Court, Eo revíew. It's a
z ít's In Re Fazmers Texas County Mutual Insurance Company,
3 texas Court of Appeals out of Austin. The case number is
4 03-15-00527.
5 May f approach, Your Honor?
6 THE COURT: SuTe.
7 MS. RÄII\IE.. Your Honor, that case deals with
I that the Court needs to shaIl sever and abate
9 extra-contractual claims from UIM claims. So I just wanted
10 to clarify if that's the Court's ruling was to bifurcate the
1- 1_ case and abate the extra-contracEual claims to a separate
L2 jury.
13 THE COURTT My understanding was a

1-4 bífurcation is just íE's before the same jury.
15 Mr. Smith, is that your understanding?
16 MR. SþIITH: Mine as well, Judge.
T7 THE COURT: I mean. that's what bifurcation
l_8 is. Otherwise, you would abate it, and ít would be before
19 another jury. But is this the case, Mr. Smith, f/ou had --
20 were you aware of this case when you r^rere responding?
2L MR. SMITH: I don't Ehink that and
22 Ms. Raines can correct me if I'm mistaken -- but I don't
23 believe this ís the case that was cited in their motíon. ft
24 may be a case that has been cited by some of Ehe cases that
25 are cited ín their motion.
GREL]TI\I FREEMAÀI, TEXAS CSR 8179
188TH DISTRTCT COURT
101 E. METITVTN, SUTTE 408
r,oNGvrEbI, TE)AS 75601 903 .237 .2688

MR 2IO
 29

1 MS. RÄIJVE.- Your Honor, this case was not
2 cited in our motion, ro.
3 MR. SMITH¡ I don't know how it would -- let
4 me see real quick.
5 THE COURT: Well-, they severed here but
6 denied t.he abatemenÈ; is that what the judge did?
7 Honor. And so it was
MS- RÄ-I¡IE.. Yes, Your
I an appeal wíthin the Court to rule that it should be severed
9 and abated.
10 THE COURT:lrlel1, I think that,s a different
11 situation. Because I'm going to I'm denying the
L2 abatement, and we're going to bifurcate. And so then the
13 íssue would be, we're goíng to proceed with full díscovery
L4 on all issues.
15 So Ehís orderthatrs presented Èo me says
L6 that MotÍon for Severance and plea in Abatement is denied in
I7 íts entirety. Extra-contractual claims will not be severed.
18 Extra-contractual cl-aims are not abated- The Court orders
19 that the trial shaIl be bifurcated as to the plaintiff's
20 extra-contractual claims .
2L I'm prepared to sign this order.
22 Mr. SmiEh, anything further?
23 I4R. SMITH: I don't have anything further at
24 this time, ,Judge.
25 THE C)URT: All right. All right. I'I1 get,
GRELhI FREEMAN, TEXAS CSR 8179
1-88TH DISTRICT COI]RT
101 E. METITVIN, SUITE 408
IJONGVTEW, TEXAS '15601 9 03 .237 -2688

MR 2II
 30

1 each one of you a conformed copy here.
2 (of f - the-record discussion)

3 THE COURT: Counsel, do y'a1l have another
4 issue?
5 MR. SMITH: Yeah,I think we may, your Honor.
6 As you recall- at the 1asÈ hearing that we
7 had, we had had a discussion about we wourd get t,ogether and
I Èalk about whÍch discovery related to which issue.
9 THE COURT: Correct.
10 MR. SMITH: üIe did that, and we reached an
11 agreement as to whj-ch discovery related to which issue. hle
t2 had a dísagreement about -- my recollect.ion of what, the
13 court's order was is that the objections were overruled and
L4 they would respond to discovery. Ms. Raine,s recollection
15 was Èhat bhe Court did not overrule theír objections. And
L6 so r have submiÈted a proposed order with my recollection
L7 overruling the objections.
18 f don't know that we have a signed copy of
19 that, and thatrs what Ms. Raines and I were discussíng.
20 THE COURT: After that hearing, I recall I
2L never got I thought what I was going to get was an agreed
22 order as to form. And f don't thínk I ever got, that. So I
23 sent some orders back on the queue e-file. Maybe each of
24 you had sent a proposed order. f can'È remember now.
25 MR. SMITH: f think f 'm the only one who sent
GRELn\T FREEMAIV, TEXAS CSR 8179
]-88TH DISTRTCT COURT
101 E. METITVTN, SUITE 408
IJONGVIEI^I, TEXAS 75501- 903.237 .Z6BB

Ì{tR 212
 31

1 a proposed order.
2 THE COART: Okay- Did I not sign that?
3 I¡eE, I s see.
4 Let's see, here's a proposed order that I
5 returned. rJet's see if that's the one you sent, Mr. smith.
6 MR. SMITH: Yes, this is Ehe one that I senE,
7 to you.
I THE COURT: Here is one let, me look at
9 thís one. Here's a proposed order that r returned it
10 because r said the lawyers would submit an ord.er urith
L1 signatures as to form, and r never got that. r think ret
L2 me see if r can copy this.
13 MS. R.4.IJVE': Your Honor, we have an agreed
L4 order that Plaintíff's counser prepared that we díscussed.
15 And then r think there was just some miscommunication as to
t6 if it was agreed as to form.
L7 And, Your Honor, w€'re ready at this tíme to
18 present that to you as an agreed order on the motion,
19 Plaintiff's Motion to compel hearing. And it's agreed. by
20 the parties to form.
2L THE COURT: Okay. Ir11 sign that then.
22 MS. RåItrIE; Your Honor, I would just also
23 rike to make clear for bhe record., that is the order that r
24 referenced in my argument here today because ít crarifies
25 the extra-contract,uar discovery questions and responses that
GREL]TI\I FREEMAN, TEXAS CSR 81_?9
188TH DISTRICT COURT
101 E. METITVIN, SUITE 408
r.oNGvIEW, TEXAS 75601_ 903 .237 .2688

MR 2I3
 32

1 have been propounded to Defendant to answer as paït of the
2 extra- contracEual díscovery.
3 THE COURT: Okay. So
4 MS. RAfiüS.. And I apologize, I thought the
5 order had been signed earlier and maybe it's a mistake Èhat
6 f just did not receÍve a copy.
7 THE COART: So thís is the order consístent
I with my prior ruling?
9 MR. SMITH: That's my recollection of it.
10 Apparently, \^re're nor¡¡ agreed t,o form.
11 MS. RÄIÀIE: Yes, Your Honor.
L2 THE COURT:Okay. f 'm going to sign it and
13 I'11 get you a conformed copy, each one of you, on this one
T4 MR. SNIITH: Thank you, Your Honor.
15 THE COURT: Sorry for the
l_6 f apologize. I didn't, know that
MR. SIUIITH:
L7 was sent back. I'm sure ít was, and f just guess f dídn,t
18 see it.
1_9 THE COURT: AIt this e-filing is new to me.
20 I4R. SMTTH: Technology is a blessing and a
21- curse -

22 THE COWT: All right. AnyÈhing further,
23 Counsel, from either side?
24 MR. SMTTH: No, Your Honor.
25 MS. RÄTÂIE; No, Your Honor.
GREr,irt\T FREEMA¡ü, TEXAS CSR 8179
]-88TH DISTRICT COIJRT
1O]- E. METITVIN, SUITE 408
LONGVTEW, TEXAS 75601_ 903 .237 .2688

MR214
 33

1 THE COURT: AtI right. Good luck. Y'aIl
2 have a safe Èrip back.
3 MR. SMITH: Thank you, Your Honor.
4 THE COURT: Okay.
5 (End of proceedings)
6

7

I
9

1_0

11_

L2

13

L4

15

16

77

l_8

19

20

2L

22

23

24

25

GREIJYÀI FREEMAI{, TEXAS CSR 8179
188TH DTSTRTCT COURT
101 E. METTIVTN, SUITE 408
ïJONGVIET¡¡, ÎEXAS 75601, 903.231 .2688

MR 2I5
 34

1 STATE OF TE)GS

2 COI'NTY OF GREGG

3 T, Gre1yn Freeman, Official Court Reporter ín and
4 for the 188th District Court of Gregg, State of Texas,
5 do hereby cerÈify that the above and foregoing contains
6 a t,rue and correct transcrÍption of all portions of
7 evidence and other proceedings requesbed in writing by
8 counsel for the partíes to be included in this volume of
9 the Reporter's Record Ín the above-styled and numbered
1_0 cause, all of which occurred in open court or in
1t_ chambers and were reported by me.
L2 f furEher certífy that this Reporter's Record of the
L3 proceedings truly and correctly reflects the exhibits,
L4 if any, of fered by the respect,ive parties.
15 f further certify that the total cosE for the
L6 preparatíon of thís Reporter's Record ís g204.OO and was
L7 paid by Sloan. Baqlev. Ha tcher 5E Perry Law Firm.
L8 !ìTITNESS MY OFFICIAIJ HA¡üD Ihis The 25Th day of
L9 November , 207-5.

20
/s/ erelyn Freeman
2L Gre1yn Freeman, CSR
Texas CSR 8179
22 official Court Reporter
1-88th DistricL CourE
23 Gregg County, Texas
101 E. MeE,hvín, Suite 408
24 Irongview, Texas 7560L
Telephone: 903-23'7-26e9
25 Expirat,ion: 1,2/3t/201,s
GREL]T\T FREEMAIü, TEXAS CSR 81-79
188TH DISTRTCT COI]RT
1.01 E. METHVTN, SUITE 408
r,oNGvIEW, TEXAS 7560L 903.237 .2688

MR 216
APPENDIX TAB 4
 Electronically Submitted
711612014 l1:11:41 AM
Gregg County District Clerk
By: Debbie Kinney ,deputy

2014-1365-A
CAUSE NO.

THOMAS JACKSON $ IN THE DISTRICT COURT
Plaintiff, $
$
vs. $ GREGG COUNTY, TEXAS
$
AAA TEXAS COUNTY MUTUÀL $
INSURANCE COMPANY $
Defendant $ JUDICIAL DISTRICT

PLAINTIFF''S ORIGINAL PETITION & R.EOUEST F'OR DISCLOSURE

Thomas Jackson, Plaintiff, files this Original Petilion, and in support thereof would

respectfully show the Court as follows:

A. DISCOVERY CONTROL PLAN

l. Discovery is intended to be conducted uncler Level 3 of Tex. R. Civ. P, 190.4.

B. PARTIES

2. Plaintiff, Thomas Jackson, is a resident of Gregg County, Texas. Plaintiff s

Driver's License number is XXXXX037. Plaintiff s Social Security number is XXX-XX-X454.

3. Defendant, AAA Texas County Mutual lnsurance Company, is an entity doing

business in the State of I'exas, This Defendant may be served with due process herein by serving

its registered agent for service, C T Corporation System , l02I Main Street, Suite I 150, Houston,

Texas 77002.

C. JURISDICTION & VENUE

4. The Court has jurisdiction over the controversy because the damages are within

the jurisdictional limits of the court. Plaintiff seeks monetary relief in excess of $ 100,000.00 but

not rnore than $ 200,000.00.

L

MR217
 5, Pursuant to Tex. Ins. Code $ 1952.110, venue is proper in Gregg County as the

county in which the accident occurred.

D. AGENCY/RESPONDEAT SUPERIOR

6. Whenever it is alleged in this petition that Defendant, AAA Texas County Mutual

Insurance Company, did any act, omission or thing, it is meant that Defèndant's employees,

agents, officers, directors, servants, apparent agents, ostensible agents, agents by estoppel and./or

representatives did such act, omission or thing and that at the time such act, omission or thing

was done it was done with the actual or implied knowledge of Defendant, AAA Texas County

Mutual Insurance Company, or was done wíth the full authorization or ratification of Defendant,

AAA Texas County Mutual Insurance Company, or was done in the normal and routine course

and scope of agency or employment of Defendant's employees, agents, officers, ditectors,

sewants, apparent agents or ostensible agents, agents by estoppel and/or representatives.

E. FACTS

7 - Thís lawsuit results from a collision that occurred on June 72, 2013 at

approximately 8:58 p.m. in Longview, Gregg Uounty. 'l'exas. Plaintifl I'homas Jackson, was

operating his vehicle westbound on Pliler Preoise Road in a saf'e, reasonable and lawful manner,

when he stopped in obedienceto a traffic control device at the intersection of Judson Road and

Pliler Precise Road. After stopping, and in obedience to the traffic control device, Plaintiff

proceeded to continue traveling westbound into the intersection of Pliler Precise Road and

Judson Road. Patricia Tompkins was traveling northbound on Judson Road when, with complete

disregard for the saf'ety and welfare of other persons or property, she disregarded the traffic

control device striking the driver's side of the vehicle being driven by Plaintiff, causing the

collision made the basis of this lawsuit.

I

MR 2I8
 8. At the time of the collision, PlaintifTs 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 Defendant and included uninsured/underinsured motorist

coverage as defined under the policy and/or by statute.

9. Plaintiff timely and properly notified Defendant of the motor vehicle collision that

is the subject of this suit. Plaintiff has fully complíed with all of the conditions of that insurance

policy prior to his filing suit against Defendant. All conditions precedent have been performed or

have occurred. Further, Plaintiff has complied with requests for provision of information to the

Defendant,

10. As a result of the collision caused by Patricia 'fompkins, Plaíntiff sustained

damages that exceed the amount of available and collectible liability insurance coverage issued

to Patricia Tompkins and which covered her negligent actions. Defèndant refused to consider

Plaintift's injuries, medical billing paid or incured by or on behalf of Plaintiff and failed, and

continues to fail, to fully compensate Plaintiff for tlie injuries caused by Patricia Tompkins, an

underinsured motorist, and gìve Plaintiff the benefit of the bargain of his uninsuredl/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, Defendant proximately caused Plaintiff injury.

F. BRßACH OF INSURAIïCE CONTRACT

ll. All of the premiums that were due on the AAA Texas County Mutual Insurance

Company policy wíth Thomas Jackson as the named insured, at the time of the wreck, had been

paid and the policy was in full tbrce and effect at the time of the collision. Defendant, AAA

Texas County Mutual lnsurance Company, kept its insured's rnoney and had obligations as

3

MR 2I9
 described in the insurance policy that was in effect at the time of the incident in question,

Defendant to date has failed and refused to pay the money due under the policy, despite denrand,

Specifically, Defendant has determined that Plaintiff s underinsured motorist claim is worth at

least $ 25,000, as evidenced by its offer to pay $ 20,000 in addition to $ 5,000 previously paid as

personal injury protection policy limits (see Exhibit A). I'Iowever, despite Plaintiffls demand for

payment of this undisputed portion of his underinsured motorist coverage (see Exhibit B),

Defendant has refused to tender this amount. This failure and reñrsal to pay constitutes a breach

of contract and demonstrates bad faith. Further, Defendant's failure to properly value and fully

pay Plaintifls damages pursuant to its obligatíons in the policy at issue likewise constitute a

breach of contract and demonstrate bad faith,

G. PETITION FOR DECLARATORY RELIEF

12. Based on the foregoing facts, and pursuant to the policy of insurance in tbrce and

effect between Plaintiff and Defendant AAA Texas County Mutual Insurance Company at the

time of the wreck, Plaintiff seeks a declaratory judgment pursuant to Tex. Civ. Prac. & Rem,

Code Ch. 37 construing the contract of insurance and declaring Plaintiffls rights and obligations

under the contract. Specifically, Plaintiff seeks a finding that Patricia Tompkins is an

underinsured motorist, that PlaintitT is entitled to recover from Defendant Plaintiffls damages

resulting fronr the motor vehicle collision the subject of this suit, that Plaintiffls damages fall

within the coverage afforded Plaintiff under the policy with Defendant, and specifying the

amount of damages, attorney's fees, interest, and court costs that Defbndant is obligated to pay.

13. Defendant AAA Texas County Mutual Insurance Company's conduct is a

proximate and producing cause of damages to Plaintiff. Such damages include, but are not

limited to, unpaid benefìts, medical expenses, physical impairment, lost eamíng capacity, and

4

MR 22O
pain and mental anguish, Such damages have occurred in the past and are likely to continue in

the future.

14. As a result of Def'endant AAA Texas County Mutual lnsurance Company's

conduct, Plaintiff has incurred attomey's fees through trial and appeal.

H. BREACH OF DUTY OF GOOD X'AITH AND FAIR DEALING

15. Without adequate explanation or justification, AAA Texas County Mutual

lnsurance Company, by and through its agents, breached its duty of good faith and fair dealing

by denying or delaying payment of benefrts to Plaintiff in accordance with his insurance

agreenrent when it was reasonably clear that it should do so. As a result, AAA Texas County

Mutual Insurance Company is in violation of Tex. Ins, Code, Chapter 542, et. søq. Further, AAA

Texas County Mutual Insurance Conrpany has engaged in unfair claim settlement practices in

violation of Tex. Ins. Code, $$542,056, 542,057, and 542.058. As a proximate result of these

actions, Plaintiff suffered damages, which are more fully outlined herein below'

T. DAMAGES

16. As a proxirnate result of the collision, Plaintiff, Thomas Jackson, sustained

serious personal injuries, specihoally including neck, back, and head injuries and injuries to his

body generally. Plaintiff believes some of his injuries are perrnanent in nature and have had a

serious effect on his health and well-being. In connection with such injuries Plaintife Thomas

Jackson, has suffered physical pain and mental anguish in the past, is suffering at the present,

and in all reasonable probability will continue to suffer for the rest of his life. Futther, it has been

necessary for Plaintifl Thomas Jackson, to pay or incur reasonable and necessary medical

expenses in the past and in all reasonable probability will incur reasonable and necessary medical

€xpenses for the treatment of his iqjuries in the future. In additíon, he has sustained loss of

5

l,IlR 221
eamings and physical impairment in the past and will in all probability continue to sustain a loss

of eaming capacity and physical impairment in the future. Ptaintiff, Thomas Jackson, sues for the

recovery of past and future medical expenses, past and future physical pain and mental anguish,

past Ioss of earnings, past and future loss of earning capacity, and past and future physical

impairment; all in an amount in excess of the minimum jurisdictional limits of this Court.

Plaintiff is seeking a reasonable amount to be determined by the jury for his injtries.

17. In addition, Plaintiff is entitled to recover attorney's fees pursuant to Tex, Ins.

Code 9542.06 and interest at eighteen percent (18%) pursuant to Tex. fns. Code $542.060.

J. DOCUMENTS TO BE USED

18. Pursuant to Tex. R. Civ. P. 193.7, Plaintiff intends to use all documents

exchanged and produced between the parties including, but not limited to, correspondence and

discovery responses, during the trial of the above-entitled and numbeted cause.

K. REOUEST FOR DISCLOSURE

19. Pursuant to Texas Rule of Civil Procedure 194, you are requested to disclose,

within frfty (50) days of service of this request, the information or material described in Rule

lea.2 (a)-(l).

L. PRAYER

\ryHEREFORE, PREMISES CONSIDERED, Plaintifï request that the Defendant be

cited to appear and answer and that upon hnal hearing hereon Plaintiff recover as follows:

a. Actual damages within the jurisdictional limits of this Court;

b. Prejudgment and post-judgment interest as allowed by law;

c. Declaratory relief as outlined in the petition;

5

v,R222
d. Costs of Court and attorney fees; and
e. All other relief the Court deems appropriate.

Respectfu lly subnritted,

SLOAN, Y & PERRY LAW FIRM

By:
M. Hatcher
State Ba¡ No.24002243
Alan J. Robertson
State Bar No.24067952
Post Office Drawer2909
101 East Whaley Street
Longview, Texas 75606
Telephone : (903) 757-7000
Facsimile : (903) 757-7574
Email : rhatcher@sloanfirrn.com

ATTORNEYS FOR PLAINTIFF

7

rurR 223
ørl2E/2øø2 L7tiL6 4Ë922L6ø25 AAA ÍEXAS CLAIM5 PAGE øLIø1.

A¡AA fsx¿s County Mutual Insurance Gompany
(t I \ O-SàO Hortn State Hlghwal
101
I f rving, Texas 7 5039-2.402
Texas

April2E,2014

M. Ravmond Hatcher, Esq'
Sloan, BagleY, Hetoher & Perry
101 EastWhalcY St'
Longvicw, TX 75601

RE: Insured: Thomas Jackson
Thomas Jackson
Client(e):
Clairr#: 01'1137187
Loss Date: 6t1Aß

Elcar Mr- Hatcher;
ived in our
comPact ed Motorlst
etter You
dmedical
ofYour"
ain to Your client's care'
the
y review the facts and circr¡nstanoes sunounding
We have you have provided' unfortunately' we arÊ
rBfetsnce m"ntàt¡on
unable to
rYour client $20,000'(X) UIM to
¡l tne adverse canier and the
aid'
below so
Plcase oresent our ofier to your client and
contad me at the tolephone number li'sted
.n m"y Oi"arss and concludc this matter'

Clalms Service

6s5s N. State HighwaY 161
lwlng, TX 75039
'ir¡wri'a;óe.222.9208É21837eor469.221'837s

^rtt
NI)

lngurf,ncoptovldedtogutl[IEdAAATðtasmcmblrsbylhêlnterlnsul€nceExchangeofthoAutomoblþGlubendilgañlllateg
Ì,llR 224
 I
I:T
JoftN l). .sÍ.o^N JR. .+ J. nY^N FOrùrLËR
r
LAURIIEN ll, BAGLIIY
SLOAN, BAGLEY AlrtNJ. RODERTSoN
M. NAYMOND II.{'I'CHER HA¡:CHER & PERRY CARSONR. RUNGE
GI,ßNN A. PIìRRY¡+ JUSTTN sMrTrr
'Borrd (.ìcttil¡cú I'cnr¡rd Ltiury liirl llt
I.AVV FIRM ^A.
WILLTAMX, KING
r N¡ri¡rt¡l lJo¿rl ol 1'rìrl i\lvoc*1, LONGVIDW. f TOUSTON

May2,2014

Mr, Frederick Annour Yía Facstmile No,: ß69 221-6025
AAA Texas County Mutual lnsurance Company
6555 N. State Highway 161
Inring, Texas 75039

Re: Ou¡ ClienVYour lnsured: Thomas Jackson
Date of [ncident: hne 12,2013
Claim No.: ottt57387

Dear Mr. Armour:

Thank you for contactíng our offrce rec€lrtly regarding your evaluation of rny client and
yotrr insurcd, Thomas Jackson's, underinsured motorist claim.

In your letter of April28,20l4, you indicate that you are offedng $20,000.00 in addition
to the $5,000.00 PIP benefits proviously paid to Mr. Jackson by AAA for his injuries, as
settlemcnt of his claims (over and above of the $30,000.00 third-party policy limits received by
Mr. Jackson). By offering this arnount, it is clear that AuAú{ has performed iæ evaluation of l\dr.
Jackson's UIM claim and determined that the UIM claim is worth at least $25,000.00
($20,000.00 plus $5,000.00 previously paid PIP bcncfits). As such, thcrc is no rcasor that AAA
should delay payment of this amount that iself acknowledges is due on this first party claim.

This letter is to request that you forward a check in the amount of your evaluation
payable to this firm and your insured, Mr. Jackson. Because yoru insured vehemently disagrces
l\'ith AAA's evaluation of the value of his claim, the payment of this amount is in no way to be
considered "settlement" of Mr. Jackson UIM claim with AAA for the injuries that he sustained in
the subject collisíon.

in writing that you will forward the $20,000.00 payment as requested and
Please confirm
that your insured may negotiate the check without the negotiation being considered any type of
rclease of her rights to seek additional amounts under the policy in the future.

Tharù you for your attention to this matter.

101 Eest \Whaley Srreet, Longview, Texas 7560 t
Phone 9Q3.7 57.7000 I Facsirnile 903.7 57,7574 I www.sloanfi rm.c<¡rn
SrceN, Blolnv, Hnrcnen & PBnny Llw Fn¡r¡
lvlay2,2014
Page2

Yor¡rs
Slon¡, & PBnny LnwFm¡r,r

RI\, HATCHER

MRlVpau
Japkson 1392{101

MR 226
APPENDIX TAB 5
A/ LB/2ØI4 LØ24Ø 2t4-76Ø-167Ø ?!4-?ãØ-t6?ø D 2/3
El€ctron¡cally Submitted
911120144i421o1 pM
cregg County District Clerk
By; Debble Kinney ,deputy

CAUSE NO. 2014-1365-A
B\\ \t{
THO¡vÍAS JACKSON $ fN THE DISTRICT COIIRT OF
$
VS $ GRECG COUNTY, TEXAS
0
fuAÁ TÐLTS COUNTY MUTUAL 6
Ij\TSTIRáNCE COMPANY I 188N IuDIcIAL DTSTRICT

DEFENDANT' S ORIGN{AI, ANS WER

COMES NOW AAA Texas County Mutual Insura:rse Company, Defenda¡rt in the above

styled and nurnbered cause and files íts Oliginal Answcr to the Plaintiffs Original Petition and in

support thereof would rcspcctfirlly represerú and show unto the Court the following:

I.

Defendânt AAA Texas County lVfutual lnsurance Cornpany denies eaoh and every, a]l and

singular, tbe material allegations contain€d in Plaintiffs Original Petition and demands strict

proof thereof-

u.

Defendaut AAA Texas County Mutual Insurance Company demands a hial byjury,

WHEREFORE, PRDMISDS CONSIDIIRED, Defendant AAA Tcxas County Mutual

I¡su¡ance Company prays that upon finalhial andheæing hueof, that ao tecovory be had from

Defendant AAA Texas County Mutual Insurance Company, but that Defendant AAA Texas

Comty Mutual Insruance Company go hence without delay and recover its costs, and for such

other and ñrther relief to which Defendaut AAA Texas County Mutual Insurance Company may

be justty entitled and will ever pray,

DEFBNDANT' S ORIGINAL ANSWER Page 1

MR227
A/ L8/2øL4 LØtAØ 21.4-2Gø-1.6?Ø, ?1,4-?6ø-L6?Ø
t 3/3

Respectfully submitted,

WALTERS, BALIDO & CRAIN, L,L.P

L
CARLOS A. BALIDO
State Bâr No, 01631230
MeadowPark Tower, 15ü Floor
10440 North Central Expressway
Dallas, T)(7523l
TeL:214-749-4805
Fax: 214-760- 1670
oarlo s, bali do @w-b cl¡rwlìrm, co nr

qERInTcATE OF SERVTCE

This ís to certiffttrat a true and correct copy ofthe foregoing document has been mailed,
faxe{ or hand delivercd to parties of ín compliarrce with Rulc 2la of thc Texas Rulee
of Civil Procedure, on 20r4_

M. RaymondHatcher
Alan J. Robenson
Sloa4 Bagle¡ Hatchor &Pwry lawFirm
P, O. Drawer2909
101 East Whaley St¡eet
Longview, TX 75606
lel: 903-757-7000
fax: 903-757-7574
úatpþçr@sloarrfi rm. com

L
CARLOS A. BALIDO
I

DEFÞNDAI.IT'S ORIGINA.L ANSWER
Page2

MR 228
APPENDIX TAB 6
 Electronically Submitted
91312014 8:47:54 AM
Gregg County District Clerk
By; Natalie Goodan ,deputy

CAUSE NO.2014 - 136s -A
THOMAS JACKSON $ IN THE DISTRICT COURT
$
vs, $ oF GREGG COLTNTY, TEXAS
$
AAA TEXAS COUNTY MUTUAL $
INSURANCE COMPANY $ 188fh JUDICIAL DISTRICT

PLAINTIFF'S FIRST AMBNDED PETITION

TO THE HONORABLE COURT:

Plaintiff Thomas Jackson files this, his First Amencled Petition, and in support thereof

respectfully shows the Court the following:

A. DISCOVERY CONTROL PLAN
1. Plaintilï intends that cliscovery will be conducted pursuant to a Level 3 discovery

controlplan. Tex. R, Clv, P. 190.4.

B. PARTIES
2, Plaintiff Thomas Jackson, an individual, is a resident of Gregg County, Texas.

Plaintiff s Texas driver's license number is XXXXX037. Plaintiff s Social Securitv number is

XXX-XX-X454,

3. Defendant AAA Texas County Mutual Insurance Cornpany has generally

appeared herein and is before the Court for all purposes.

C. JURISDICTION AND VENUE

4. The Court has jurisdiction over the controversy because the damages well exceed

the Court's jurisdictional minimum. Plaintiff seeks monetary relief in excess of $100,000.00 but

not exceeding $200,000.00.

5, Pursuant to Texas Insurance Code $ 1952.110, venue is proper in Gregg County.

Texas, which is the county in which the subject wreck occured.

MR 229
 D. AGENCY / RESPONDEA'I SUPEIITOR
6. Whenever it is alleged in this petition that Defendant, AAA Texas County Mutual

Insurance Company, did any act, omission or thing, it is meant that Defendant's employees,

agents, officers, directors, servants, apparent agents, ostensible agents, agents by estoppel and/ot

representatives did such act, omission or thing and that at the titne such act, omission or thíng

was done it was done with the actual or implied knowledge of Detèndant, AAA Texas County

Mutual Insurance Company, or was done with the lull authorizatíon or ratifìcation of Defendant,

AAA Texas County Mutual Insurance Company, or was done in the normal and routine course

and scope of agcncy or employrnent of Defendant's employees, ageuts, officers, directors,

servants, apparent agents or ostensible agents, agents by estoppe[, and/or representatives.

E. FACTS
7. This lawsuit results from a collision that occuned on Jutre 12,2013, at

approximately 8:58 p.m. in Longview, Gregg County, Texas. Plaintiff Thomas Jackson was

operating his vehicle westbound on Pliler Precise Road in a safe, reasonable and lawtil manner)

when he stopped in obedience to a traffic control device at the inter.section of Judson Road and

Pliler Precise Road. After stopping, and in obedience to the traffic control device, Plaintiff

proceeded to continue traveling lvestbound into the intersection of Pliler Precise Road and

Judson Road. Patricia Tompkins was traveling northbound on Judson Road when, with complete

disregald 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 Plaíntiff and causing the

collision made the basis of this lawsuit.

8. When the collision occurred, Plaintiffs vehicle was covered by a policy of

automobile insurance in full force and etI'ect, which ís the subject of this lawsuit. The polícy of

2

MR 23O
automobile insurance was issued by Defendant and included uninsured/underinsured motorist

coverage as defined under the policy and/or by statute.

9. Plaintiff timely and properly notified l)efendant of the motot vehicle collision that

is the subject of this suit. PlaÍntiff has tilly complied with all of the conditions of that insurance

policy prior to his hling suit against Defèndant. All conditions precedent have been performed

or have occuned. Further, PlaintifÏ has complied wíth requests for provision of information to

the Defendant.

10. As a result of the collision caused by Patricia Tompkins, Plaíntiff sustained

damages that exceed the amount of available and collectibte liability insurance coverage issued

to Patricia Tompkins and which covered her negligent actions. Delendant refused to consider

Plaintifï s ir{uries" medical billing paid or incurred by ot on behalf of Plaintiff and failed, and

continues to fail, to fully compensate Plaintiff for the injuries caused by Patricia Tornpkins, an

underinsured motorist, and give Plaintifithe 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 omissíons, and unlawful conduct as described herein

below. Defendant proximately causecl Plaintiff injury,

F.. BREACH OF INSURANCE CONTRACT

I l, All of the premiums that were due on the AAA Texas County Mutual Insurance

Company policy with Thomas Jackson as the named insured had, at the time of the wreck, been

paid and the policy was in full force and effect at the time of the collision. Defendant, AAA

Texas Courrty Mutual Insurance Company, kept its insured's premiums and had obligations as

described in the insurance policy that was in effect at the time of the incident in question,

Defendant to date has failed and refused to pay the money due under the policy, despite demand.

J

MR 23I
 Specifically, Defendant has determined that Plaintiff s underiusured motorist claim is worth at

least $ 25,000, as evidenced by its offer to pay $ 20,000 in addition to $ 5,000 previously paid as

personal injury protection policy limits (see Exhibit A). However, despite Plaintiff's demand for
payment of this undisputed portion of his underinsured motorist coverage (see Exhibit B),

Defendant has refused to tender this amount. This failure and ref'usal to pay constitutes a breach

of contract and demonstrates bad faith. Further, Defendant's f'ailure to properly value and fully

pay Plaintiffs damages pursuant to its obligations in the policy at issue likewise constitutes a

breach of contract and demonstrate bad faith^

G. PETITION FOR DECLARATORY RELIEF

12. Based on the foregoing facts, and pursuant to the policy of insurance in force and

effect between Plaintiff and Defendant AAA Texas County Mutual Insurance Company at the

time of the wreck, Plaintifi seeks a declaratory judgment pursuant to Chapter 37 of the Texas

Civil Practice and Remedies Code construing the contract of insurance ancl declaring Plaintiff s

rights and obligations under the contract. Specitically, Plaintiff seeks finclings that (l) Patricia

Tompkins is an underinsured motorist, (2) that Plaintiff is entitled to recover from Defendant

Plaintiff s damages resulting from the motor vehicle collision the subject of this suit, (3) that

Plaintiffs damages fall within the coverage afl'orded Plaintiff under the policy with Defendant,

and (4) a finding specifying the amount of damages, attomey's fees, interest, and court costs that

Defendant is obligated to pay.

13. Det'endant AAA Texas County Muttnl Insurance Company's conduct is a

proximate and producing cause of damages to Plaintifï, Such damages include, but are not

limited to, unpaid benefìts, medical expenses, physical impainnent, lost earning capacity, and

4

MR232
 pain and mental anguish. Such damages have occurred in the past and are likely to continue in

the future.

14, As a result of Defendant AAA Texas County lVfutual Insurance Company's

concluct, Plaintiff has incurred attorney's fees through trial and appeal.

H. BRE.,\CH OF DUTY OF GOOD FAITH AND FAIR DEALING

15. Without adequate explanation or justification, Delendant AAA Texas County

Mutual Insurance Cornpany, by and through its âgents, breached its duty of good faith and fair

dealing by denying or delaying payment of benefits to Plaintiff in accordance with its insurance

agreement with Plaintiff when it was reasonably clear that it should pay said benefits to Plaintiffl

Accordingly, Det'endant is in violation of 'fexas Insurance Codc, Chapter 542. et seq. Further,

Defendant has engaged in unfair claim settlement practices in violation of Texas Insurance Code

$$ 542,056, 542.057, and 542.058. As a proximate result of these actions, Plaintitt suffèred

damages, which al'e more fully outlined herein bclow.

I. DAMAGES

ló. As a proxirnate result of the collision, Plaintiff Thomas Jackson sustained serious

personal injuries, specifically including neck, back, and head ínjuries and injuries to his body

generally. Plaintiff believes some of his injuries are permanent in nature and have had a serious

etfèct on his health and well-being. [n connection with such injuries, Plaintiff Thomas Jackson

has sufTered physical pain and mental anguish in the past, is suffering at the present, and, in all

reasonable probability, will continue to suffer f-or the rest ol'his lifb. Fuúher, it has been

necessary for Plaintiff, Thomas Jackson, to pay or incur reasonable and nece.ssary medical

expenses in the past and in all reasonable probability will incul reasonable and necessary medical

expenses fbr the treatment ol his ínjuries in the future. In addition, he has sustained physical

5

MR 233
impainnent in the past arrd wilt in all probabilíty continue to sustain physical impairment in the

futurc. Plaintiff Thomas Jackson sues f'or the recovery of past and fluture medical expenses, past

and future physical pain and mental anguish, antl past and future physical impairment; all in an

amount in excess of the minimum jurisdictional limits of this Court. Plaintiff seeks a reasonable

amount to be determined by the jury for his injuries.

17, In addition, Plaintiff is entitled to recover attorney's tèes and interest on the

amount of his claim at eighteen percent (1S%) per year pursuant to Texas Insurance Code $

542,060.

J. DOCUMENTS TO BE USED

18. Pursuant to Texas Rule of Civil Procedure 193.7, Plaintii'f intends to use all

documents exchanged and produced between the parties including but not lirnited to

correspondence and discovery responses during the trial of the above-entitled and numbered

cause,

K. PRAYER FOR RELIEF

PREMISES CONSIDERED, Plaintiff requests that the Defendant be cited to appear and

answer and that, upon tìnal hearing hereon, PlaintitTrecover as t-ollows:

a. Actual damages within the jurisdictional limits of this Court;

b. Prejudgment and post-judgment interest as allowed by law;

c. Declmatory relief as outlined in the petition;

d. Costs of Couft and attorney's fees; and

e. All otlier relief to which Plaintiff may show himselfjustly entitled.

6

MR 234
 Respectfu lly submitted,

SLoAN, Bacuy, H,qrcHeR & Pennv L¡.w Ftnvt

M, RA R
State Bar No,24002243
rhatcher@slo anfirm. com
ALAN J. ROBERTSON
State Bar No,24067952
arobertson@ sloanfirm. com
101 East Whaley Street
Longview, TX 75601
Telephone 903-7 57 -7000
Facsimile 903-7 57 -757 4

ATTORNEYS FOR PLATNTIFF

CERTIFICATE OF SERVICE
e'rd
i hereby certify that on this J_ lay of September,2}74, a true and correct copy of the
ftrregoing document was sent by certitied mail, retum receipt requested, facsimile transmission,
and/or e-mail in accordance with the Texas Rules of Civil Procedure to the following counsel of
record:

Mr. Carlos A, Balido
WALTERS, Balroo & CnR¡w, L.L.P
Meadow Park Tower, l5tl' Floor
10440 North Central Expressway
Dallas, TX 75231

M. RAYM
ALAN J. T'SON

7

MR 235
APPENDIX TAB 7
 Electronically Submitterl
1 l'l 6 /20 1 5 3:02:45 P l\A

Grsgg County Dis(rict Clerk
By: Debbie Kinney ,deputy

CAUSE NO. 2014 - l36s _ A

THOMAS JACKSON $ IN THB DISTRICT COURT
$
vs OF' GREGG COTINTY,
$ Tf,XAS
$
AAA TEXAS COUNTY MUTU.{L
$
INSURANCE COMPANY T88'h JUDICIAL DISTRICT
$

PLAINTIFF'S MOTION TO COI}ÍPEL DISCOVERY

TO TIJE HONORABLE COURT:

Plairrtiff Thotnas .faokson fiIes this, his lVfotion ro Compel Discovery. plainriff
requests

that this CoLu't sign an otcJer compelling Delenclant AAA Texas County
Mutual lnsr¡rance
Cornpany ("AA,A") to fully ans'uvet'/responcl to PlaintitÏ Thomas .fack¡-on's Fírst Request ttr¡

Admissions. First Set of Interrogatories, and First Request lor procluction.
In support thereof,
PlaintitlLespectfully shows the Court the following:

I. TNTRODUCTION

This lawsuit results fì'om a motor vehicle collisior, occurring on or about
June I z, 2013,
in Glegg Courrty, J'exas, The collision occurrecl at the intersection of pliler. precise
Roaci and

Juclson Road in Lortgview. Texas. At that time, Plaintiff Thornas Jackson was the dr.iver of a

vel:ìcle lawfully and safely traveling westbound on Pliler Precise Roacl, Jackson
stoppecl i.
obedicnce to a traffic lighl at the intersection of Juclson Road and pliler precise Road, After

stopping' md in obedience to the tratTc light, Jackson continued traveling
westbouncl into t6c

intersection of' Plì.]er precise Road ancl Judscrn Roa.d. paÍicia lompkins was traveling
nofthbourrd on .Iudson Road when, with complete rlisregarcl for the satbty
ancl welfare of other

persons or properfy, she disregarded the red light, struck the driver's
side of Jackson,s vehícle,

and caused the collisíon made the basís of'this lawsuit.

MR 236
 When the collisiorr occllrted, AAA covered Jtckson with a personal aLrtomobile ínsurance

policy. AAA's policy inclucled underinsruecl rnotorist coverage, .Iackson's injuries and

damages exhausted the limits of Ms. Tompkins's liability insurancc coverage, so Jackson now

seeks to enforce against AAA the itrsurance policy for which both hc anct AAA bargained and for

which Jackson paid premiurns.

A.4A has prevíously ottþred to pay Jackson $20.000.00 of its $100,000.00 unclerinsured

motorist coverage in additíon to the $5,000.00 personrrl injury protection coverage it previously
paid and the $30,000.00 of liabiliry insurance paicl by N4s, Tompkins's insurer Despite

J¿tckson's demand th¿rt ¡\AA pay this t)mount (ancl thc pru'ties continue to Iitigatc the amount(s)

about which they disagree), AÂA let-r.¡ses to pay the $20,000.00 which it has ah.eacly oU'erecl.

Discovery in this malter is governed by a Level 3 discovery control plan. This mattcr has
not yct been set f'or trial.

fl. DBF'TCIENCIES IN DB¡-¡]NDAIíT''S DISCOVERY RESPONSES

No pafty to this lawsuit disputes that the e vent.s listecl below occurred on the

con'esponding dates listed ;

o Octobcl l7r 2014: Jackson's counsel servrs AAA with Jackson's First Request for
Admissions. First Request for Procfuctiou, And Filst Set of intenogatolies.

o Novembcr 11r 20t{; AAA's couusel requests (ancl Jackson's counsel grants) the firstof
fotlt' extcnsions of AAA's deadlìne to respoud to Jackson's written