In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00331-CV
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IN RE TEXAS WINDSTORM INSURANCE ASSOCIATION, BRUSH
COUNTRY CLAIMS, LTD, AND DAVID GUTIERREZ
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Original Proceeding
60th District Court of Jefferson County, Texas
Trial Cause No. B-183,464
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MEMORANDUM OPINION
In this mandamus proceeding, the relators, Texas Windstorm Insurance
Association, Brush Country Claims, LTD, and David Gutierrez, contend that the
trial court abused its discretion by compelling the relators to produce all
photographs and damage estimates on Hurricane Rita claims that they adjusted or
investigated on property located within a one mile radius of the property that is the
subject of the unfair claims settlement suit. We stayed the trial court’s discovery
order and requested a response from the real parties in interest, David James and
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Sue James. The Jameses argue that the documents would likely include a
significant number of homes similar in age and construction to their home and that
it would be reasonable to expect that other houses in the immediate vicinity would
have been subjected to wind and rain of similar intensity for a similar time period,
and the homes would have sustained similar interior water damage. After
reviewing the petition and the response, we conditionally grant mandamus relief.
Discovery requests must not be overbroad. In re Nat’l Lloyds Ins. Co., 449
S.W.3d 486, 488 (Tex. 2014) (orig. proceeding). “‘[O]verbroad requests for
irrelevant information are improper whether they are burdensome or not.’” Id.
(quoting In Re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig.
proceeding)). In National Lloyds, the plaintiff alleged her homeowner’s insurer
undervalued her claims for damage to her Cedar Hill home caused by two storms.
Id. at 487–88. The Texas Supreme Court concluded that the trial court abused its
discretion by compelling production of claims files by the adjusting firms on other
Cedar Hill homes damaged in the same storms. Id. at 489–90. The Court held that
the insurer’s evaluation of other homes that were damaged in the same storms
would provide no relevant information to support the plaintiff’s claims that her
claim had been undervalued. Id. at 489. The Court explained that scouring claims
files for similarly situated claimants was at best an impermissible fishing
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expedition, especially considering the many variables associated with a particular
claim. Id.
In an attempt to distinguish National Lloyds, the Jameses submitted
supplemental affidavits from their experts. Both experts stated that it would be
“beneficial . . . to review historical photographs and estimates of real property
damaged by Hurricane Rita within a one mile radius of the Property[.]” Both of the
Jameses’ experts opined that “[s]uch information, photos, and data would be
reliable, credible and objectively verifiable evidence” for [them] to review in order
to render opinions and conclusions . . . regarding the extent and severity of damage
sustained by the Property[.]”
However, the lack of relevance of the requested discovery is illustrated by
the initial report of one of the Jameses’ experts, Gregory Becker of Becker
Engineering, Ltd. In this report, Becker explained that neighboring structures
would experience different wind speeds:
Downbursts (microbursts) and tornados within the hurricane bands
gust at speeds much higher than the measured wind speeds at any
particular monitoring station. Highly variable winds, such as tornados
and downbursts, are likely responsible for a particular structure being
totally demolished or severely damaged while a neighboring structure
is left intact. Excessive wind damage is sporadic and these high winds
are short lived and unpredictable. Therefore, this phenomenon is often
not measured at monitoring stations nearest the property. Direct
observation is rare, since occupants are either gone or inside. Also,
note that adjacent buildings channel winds between the homes and
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may also accelerate wind velocity. Accordingly, new damage is the
best indicator of this wind force.
National Lloyds recognized that insurance claims are unique due to the
“many variables associated with a particular claim, such as when the claim was
filed, the condition of the property at the time of filing (including the presence of
any preexisting damage), and the type and extent of damage inflicted by the
covered event.” Id. The Jameses argued to the trial court that they were seeking
information regarding wind speed and direction to support their experts’ opinions,
but their experts did not rely on this evidence in their reports so the requested
discovery would, at best, merely bolster their opinion testimony. In other words,
when Relators challenged the reliability of the methodology of Jameses’ experts,
the Jameses requested additional discovery hoping that they could scour claim files
in hopes of finding similarly situated claimants. See id.
The trial court abused its discretion by ordering discovery of irrelevant
information. See id. at 488; Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.
1995) (orig. proceeding); In re GMAC Direct Ins. Co., No. 09-10-00493-CV, 2010
WL 5550672, at *1 (Tex. App.—Beaumont Dec. 30, 2010, orig. proceeding).
Furthermore, an overbroad request for irrelevant information is improper without
regard to whether the request is also burdensome. In re Allstate Cnty. Mut. Ins.
Co., 227 S.W.3d at 670. Because we have sustained Relators’ complaint that the
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trial court abused its discretion by ordering overbroad discovery, we need not
address their additional complaint that the discovery order is unduly burdensome.
We are confident that the trial court will vacate its order compelling
discovery and the writ of mandamus shall issue only if the trial court fails to
comply with this opinion.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on October 6, 2016
Opinion Delivered November 3, 2016
Before Kreger, Horton, and Johnson, JJ.
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