in Re Leslie Hamilton

NUMBER 13-20-00254-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE LESLIE HAMILTON

On Petition for Writ of Mandamus.

MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria1

Relator Leslie Hamilton filed a petition for writ of mandamus and supplemental

petition for writ of mandamus in the above cause seeking to compel the trial court to order

the deposition of a representative of the real party in interest, Allstate Fire and Casualty

Insurance Company (Allstate). 2 We conditionally grant the petition for writ of mandamus

in part and deny it in part.

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so,” but “[w]hen granting relief, the court must hand down an opinion as in any other case”);
id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number 20-1-16079 in the 135th Judicial

District Court of Jackson County, Texas, and the respondent is the Honorable Kemper Stephen
Williams. See TEX. R. APP. P. 52.2.
 I. BACKGROUND

Hamilton filed suit against Allstate in cause number 20-1-16079 in the 135th

Judicial District Court of Jackson County, Texas. In her “Original Petition,” Hamilton

alleged that she sustained injuries as a result of a collision proximately caused by the

negligence of Craig Gabrysch, the driver of another vehicle. Hamilton alleged that the

vehicle Gabrysch was operating was an “underinsured motor vehicle,” that Hamilton was

an insured driver under an Allstate policy held by Linda Rehak, and that she was bringing

the lawsuit to recover benefits pursuant to the Allstate policy regarding

uninsured/underinsured motorist (UM/UIM) coverage. Hamilton alleged breach of

contract and sought declaratory judgment that she was a “covered person under a policy

of insurance” through Allstate at the time of the collision, that there was

“uninsured/underinsured coverage under the policy of insurance issued by [Allstate],” and

that Gabrysch’s “negligen[ce] and/or negligen[ce] per se” was the proximate cause of her

injury. Hamilton settled her claims against Gabrysch.

Hamilton filed a motion to compel the deposition of representatives of Allstate. She

requested that Allstate produce the person or persons who have the most knowledge of

the following areas:

1. Any policy(ies) of insurance issued or underwritten by [Allstate]
applicable to the collision made the subject of this suit;

2. The occurrence or non-occurrence of all condition(s) precedent
under the contract, including, but not limited to, coverage by [Allstate];
collision with the underinsured motorist; injury to [Hamilton]; and
compliance by [Hamilton] with the terms and conditions of her policy(ies);

3. [Hamilton’s] reasonableness and necessity of past and future
medical bills caused by the collision made the subject of this suit;

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4. Any facts supporting [Allstate’s] legal theories and defenses;

5. Any information regarding [Allstate’s] experts;

6. The amount and basis for [Allstate’s] valuation of [Hamilton’s]
damages;

7. The nature and causation of [Hamilton’s] alleged injuries sustained
in the collision made the basis of this suit;

8. The damage sustained by all vehicles involved in the collision at
issue;

9. Whether Craig Allen Gabrys[c]h was an uninsured/underinsured
motorist at the time of the collision;

10. Whether Craig Allen Gabrys[c]h was driving an
uninsured/underinsured vehicle at the time of the collision;

11. [Allstate’s] contention that the accident in question was “unavoidable
and/or that it was solely caused by persons of instrumentalities not under
the control of [Allstate]”;

12. [Allstate’s] contention that it generally denies [Hamilton’s]
allegations;

13. [Allstate’s] contention that all conditions precedent have not been
met by [Hamilton].

14. [Allstate’s] contention that [Hamilton] is not entitled to pre-judgment
interest;

15. [Allstate’s] contention that it is “entitled to a credit or offset for the
policy limits of the policy issued to the third party involved in this accident,
and for any personal injury and medical payments made to [Hamilton]”;

16. [Allstate’s] contention that it did not have “a duty to accept or deny
[Hamilton’s] alleged underinsured motorist claim”;

17. [Allstate’s] contention that “at all times it acted promptly based upon
information known or made available to them, and at no time was [Allstate]
in possession of information by which it could be determined that it was
reasonably clear benefits were due under the applicable provisions of the
policy”;

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 18. [Allstate’s] contention that “[Hamilton’s] injuries and damages, if any,
were not the proximate result, in whole or in part, of the accident made the
basis of this suit”;

19. [Allstate’s] contention that [Hamilton] failed to mitigate her damages;

20. [Allstate’s] contention that “the accident in question was simply an
accident, not the result of anyone’s negligence”;

21. [Allstate’s] contention that not any of the claims of statutory violation
constitutes or qualifies as negligence per se; and

22. [Allstate’s] contention that [Hamilton] is not entitled to attorney’s fees
under the Declaratory Judgment Statute.

Allstate filed a response arguing that the motion to compel should be denied because the

topics in Hamilton’s motion to compel are overbroad and obtainable from some other

source that is more convenient, less burdensome, or less expensive. It contended that

the only remaining issues in the case were liability for the underlying accident and the

amount of Hamilton’s damages

At a hearing on the motion to compel, Allstate represented to the trial court that it

stipulated that the vehicle Hamilton was operating at the time of the collision was insured

for UM/UIM benefits under the policy with Allstate and that the underlying accident was a

covered occurrence. Hamilton denied that she agreed to any stipulation. The record

before this Court contains the settlement agreement which provides that Hamilton settled

her claims regarding this incident with Gabrysch Custom Application LLC, Craig

Gabrysch, and Union Insurance Company. The agreement states that the settlement

agreement “is not to be construed as an admission of liability.”

After the hearing, the trial court denied Hamilton’s motion to compel. This original

proceeding ensued. Hamilton contends that the trial court abused its discretion by

denying her motion to compel and further asserts that she lacks an adequate remedy by

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appeal. This Court requested and received a response to the petition for writ of

mandamus from Allstate which generally reiterated the arguments made previously in its

response to Hamilton’s motion to compel the deposition.

II. MANDAMUS

Mandamus is both an extraordinary remedy and a discretionary one. In re Garza,

544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam). For mandamus to issue,

the relator must show that the trial court abused its discretion and that no adequate

appellate remedy exists to cure the error. In re N. Cypress Med. Ctr. Operating Co., 559

S.W.3d 128, 130 (Tex. 2018) (orig. proceeding); In re Christus Santa Rosa Health Sys.,

492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of

proving both requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016)

(orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.

proceeding). An abuse of discretion occurs when a trial court’s ruling is arbitrary and

unreasonable or is made without regard for guiding legal principles or supporting

evidence. In re Garza, 544 S.W.3d at 840; In re Nationwide Ins. Co. of Am., 494 S.W.3d

708, 712 (Tex. 2016) (orig. proceeding). We determine the adequacy of an appellate

remedy by balancing the benefits of mandamus review against the detriments. In re

H.E.B. Grocery Co., 492 S.W.3d at 304; In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex.

2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

136 (Tex. 2004) (orig. proceeding).

III. DISCOVERY

A party can seek discovery of unprivileged information that is relevant to the

subject matter of the lawsuit, including inadmissible evidence, as long as the request is

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reasonably calculated to lead to the discovery of admissible evidence. TEX. R. CIV.

P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding).

However, the broad scope of discovery is limited by the legitimate interests of the

opposing party in avoiding overly broad requests, harassment, or the disclosure of

privileged information. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig.

proceeding). Discovery may be limited if: (1) it is unreasonably cumulative or duplicative,

or is obtainable from some other source that is more convenient, less burdensome, or

less expensive; or (2) the burden or expense of the proposed discovery outweighs its

likely benefit, taking into account the needs of the case, the amount in controversy, the

parties’ resources, the importance of the issues at stake in the litigation, and the

importance of the proposed discovery in resolving the issues. TEX. R. CIV. P. 192.4.

The rules of civil procedure permit a party to take the deposition of “any person or

entity.” Id. R. 200.1(a); see Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127

(Tex. 1995) (construing the former rules of civil procedure); In re Celadon Trucking

Servs., 281 S.W.3d 93, 97 (Tex. App.—El Paso 2008, orig. proceeding). Generally

speaking, a party to a suit has the right to depose the opposing party. See Mobile Oil

Corp. v. Floyd, 810 S.W.2d 321, 323–24 (Tex. App.—Beaumont 1991, orig.

proceeding); see also In re Perry, No. 13-18-00676-CV, 2019 WL 1723509, at *4 (Tex.

App.—Corpus Christi–Edinburg Apr. 18, 2019, orig. proceeding) (mem. op.); In re Luna,

No. 13-16-00467-CV, 2016 WL 6576879, at *5 (Tex. App.—Corpus Christi–Edinburg Nov.

7, 2016, orig. proceeding) (mem. op.); In re Doe, No. 13-10-000590-CV, 2011 WL

1158765, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 10, 2011, orig. proceeding)

(per curiam) (mem. op.). However, the person noticed for deposition also has the right to

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protection “from undue burden, unnecessary expense, harassment, annoyance, or

invasion of personal, constitutional, or property rights.” TEX. R. CIV. P. 192.6; Crown Cent.

Petroleum Corp., 904 S.W.2d at 127; Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex.

1994).

IV. UM/UIM CASES

UM/UIM coverage provides payment to the insured of all amounts that the insured

is legally entitled to recover as damages from owners or operators of underinsured motor

vehicles because of bodily injury or property damage. See TEX. INS. CODE

ANN. § 1952.105–.108. The insured’s recovery, if any, cannot exceed the limits specified

in the insurance policy and is reduced by the amount recovered or recoverable from the

insurer of the underinsured vehicle. Id.

The UM/UIM insurer is under no contractual duty to pay benefits until the insured

obtains a judgment establishing the liability and the underinsured status of the other

motorist. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006).

Therefore, to recover benefits under a UIM policy, a policy beneficiary must show (1) that

the insured has underinsured motorist coverage, (2) that the underinsured motorist

negligently caused the accident that resulted in the covered damages, (3) the amount of

the insured's damages, and (4) that the underinsured motorist's insurance coverage is

deficient. See id. at 818; State Farm v. Nickerson, 216 S.W.3d 823, 824 (Tex. 2006); In

re Progressive Cty. Mut. Ins. Co., 439 S.W.3d 422, 426-27 (Tex. App.—Houston [1st

Dist.] 2014, orig. proceeding); In re United Fire Lloyds, 327 S.W.3d 250, 255 (Tex. App.—

San Antonio 2010, orig. proceeding). Accordingly, “a claim for [UIM] benefits is not

presented until the trial court signs a judgment” resolving these issues. Brainard, 216

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S.W.3d at 818; see In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d 214, 220 (Tex. App.—

Houston [1st Dist.] 2017, orig. proceeding).

The scope of discovery in UM/UIM cases “differs from other insurance disputes

because, unlike most first-party cases in which the terms of the policy alone dictate the

outcome, uninsured motorist coverage hinges on the liability of the alleged uninsured, at-

fault third-party motorist, under applicable tort law.” In re State Farm Mut. Auto. Ins. Co.,

553 S.W.3d 557, 564–65 (Tex. App.—San Antonio 2018, orig. proceeding) (quoting In

re Allstate Fire & Cas. Ins. Co., No. 12-17-00266-CV, 2017 WL 5167350, at *3 (Tex.

App.—Tyler Nov. 8, 2017, orig. proceeding) (mem. op.)); see In re Liberty Cty. Mut. Ins.

Co., 537 S.W.3d at 220. UM/UIM extra-contractual claims can be rendered moot if the

insured does not obtain a judgment against the uninsured or underinsured motorist. In

re State Farm Mut. Auto. Ins. Co., 553 S.W.3d at 564–65; In re Liberty Cty. Mut. Ins. Co.,

537 S.W.3d at 220–21; see also In re Allstate Fire & Cas. Ins. Co., 2017 WL 5167350, at

*4; In re Perry, 2019 WL 1723509, at *4.

V. ANALYSIS

Hamilton contends that the trial court abused its discretion by denying her motion

to compel and asserts that she lacks an adequate appellate remedy to cure this error.

Hamilton argues that denying the deposition of an insurance company’s corporate

representative in a UM/UIM case is a clear abuse of discretion. In support of her

argument, Hamilton cites In re Luna, 2016 WL 6576879, at *7, and In re Perry, 2019 WL

1723509, at *8. Allstate argues the trial court did not abuse its discretion in denying

Hamilton’s motion to compel because the discovery sought by Hamilton can be obtained

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by another less intrusive, less burdensome process and that the Allstate representative

has no personal knowledge of the topics included in the deposition notice.

This Court has previously addressed this issue, as noted by both parties, in In re

Luna, WL 6576879, at *1–8, and In re Perry, 2019 WL 1723509, at *1–8. In re Perry

discussed this Court’s decision in In re Luna:

[T]his Court conditionally granted mandamus relief directing the trial court
to allow the deposition of the insurer’s representative in a UM case. There,
as in the foregoing cases, a stipulation covered many of the issues in the
case but did not address causation or damages. However, a default
judgment had been entered against the defendant driver. Based on the
pleadings, State Farm was contesting both the cause of the accident and
the amount of damages sustained by the plaintiff. The topics encompassed
by the deposition notice corresponded to the defenses and theories raised
by State Farm or had a direct bearing on liability and damage issues, and
those matters were not encompassed by the stipulation. We concluded that
information pertaining to liability and State Farm’s defenses was relevant
and discoverable absent a showing of privilege or other exemption
authorized by the rules of civil procedure, and thus conditionally granted
mandamus relief and ordered the trial court to withdraw its order quashing
the deposition.

In re Perry, 2019 WL 1723509, at *5 (internal citations omitted). This Court’s ruling in In

re Luna relied in part on our sister court’s ruling in In re Garcia, No. 04-07-00173-CV,

2007 WL 1481897, at *2 (Tex. App.—San Antonio May 23, 2007, orig. proceeding) (per

curiam) (mem. op.). There, the San Antonio Court of Appeals also conditionally granted

mandamus relief and ordered the trial court to allow the deposition of State Farm’s

corporate representative in a case against State Farm for UM/UIM benefits. See id. At 2–

3. In that case, the court concluded that the trial court erred in quashing the deposition in

its entirety because doing so unreasonably restricted the plaintiff’s access to relevant

information regarding State Farm’s multiple defenses and compromised her ability to

present and prove her case. Id. As noted by the San Antonio Court of Appeals, the denial

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of discovery goes to the heart of a party’s case when the party is prevented from

developing essential elements of its claim or defense. See id.; see also Able Supply Co.

v. Moye, 898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding); In re Ten Hagen

Excavating, Inc., 435 S.W.3d 859, 863–64 (Tex. App.—Dallas 2014, orig. proceeding); In

re Perry, 2019 WL 1723509, at *5.

Similarly, in In re Perry, this Court found that the plaintiff had pleaded facts which,

if true, would have established that the other driver was at fault and that State Farm had

refused to pay under the policy, thus alleging a ripe claim. See In re Perry, 2019 WL

1723509, at *5 (citing In re Reynolds, 369 S.W.3d 638, 649 (Tex. App—Tyler 2012, orig.

proceeding) (holding that a claim against a UIM insurer was ripe where the plaintiff alleged

the other motorist was liable and underinsured and the UIM Insurer refused to pay)); ; see

also Alvarado v. Okla. Sur. Co., 281 S.W.3d 38, 40, 42 (Tex. App.—El Paso 2005, no

pet.); State Farm Cty. Mut. Ins. Co. of Tex. v. Diaz–Moore, No. 04-15-00766-CV, 2016

WL 6242842, at *2 (Tex. App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.). In In re

Perry we reasoned that the plaintiff’s claim was ripe and that she had the right to depose

the opposing party in her suit, conditionally granting relief. See In re Perry, 2019 WL

1723509 at *8. In so ruling, this Court limited the scope of the deposition “to matters

relevant to the subject matter of the pending action.” Id.

Allstate argues that this case is more analogous to In re Liberty County Mutual

Insurance Co., 537 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding)

(In re Liberty I), and In re Liberty County Mutual Insurance Co., 557 S.W.3d 851 (Tex.

App.—Houston [14th. Dist.] 2018, orig. proceeding) (In re Liberty II). The First Court of

Appeals concluded that the plaintiff was not entitled to depose the insurer’s claims

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adjuster because the information sought through the deposition was neither relevant to

the plaintiff’s pending claims nor reasonably calculated to lead to the discovery of

admissible evidence. In re Liberty I, 537 S.W.3d at 220. There, the relevant issues were

liability for the car accident, the plaintiff’s UM/UIM status, and the existence and amount

of damages. See id. The court reasoned that Liberty had conceded “that [the plaintiff] was

an insured under the policy and that the underlying accident was a covered occurrence

under the policy’s UIM provisions”; therefore, “the remaining issues [were] those relating

to the underlying accident: (1) [the other driver’s] liability for the car accident, (2) [the other

driver’s] uninsured/underinsured status, and (3) the existence and amount of [the

plaintiff’s] damages.” Id. at 221. The First Court of Appeals then explained that the

deposition topics were irrelevant to the pending issues. See id. The court stated that the

requested discovery may become relevant, but not until the liability of the third party had

been determined. See id. at 222.

The Fourteenth Court of Appeals held it was error to deny a motion to quash the

deposition of an insurer’s corporate representative in a UIM case because the deposition

order was “not limited to the relevant topics of the truck driver's liability and the existence

and amount of Plaintiff’s damages” and “the information sought through the deposition

already has been obtained by Plaintiff or may be obtained from other sources with less

burden and expense.” In re Liberty II, 557 S.W.3d at 856. There, the plaintiff sought a

representative to testify regarding damages, the “facts supporting the legal theories and

defenses” of the insurer, including offset and credit, and the insurer’s live pleadings. See

id. at 854–55. The plaintiff had sued the insurer directly for UIM benefits and brought

causes of action for breach of contract and violations of the Texas Insurance Code, and

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the trial court had severed the plaintiff’s extra-contractual claims. See id. at 854. The

Fourteenth Court of Appeals conditionally granted relief. See id. at 853.

Allstate places emphasis on their argument that a representative of Allstate would

not have personal knowledge of the issues listed in the deposition notice. We addressed

this same situation in In re Luna, wherein State Farm asserted that “its corporate

representative will not have personal knowledge of the facts at issue in this lawsuit.” In re

Luna, 2016 WL 6576879, at *7. However, as we discussed in In re Luna, Texas Rule of

Civil Procedure 192.3 provides that “[a] person has knowledge of relevant facts when the

person has or may have knowledge of any discoverable matter. The person need not

have admissible information or personal knowledge of the facts.” TEX. R. CIV. P. 192.3(c)

(emphasis added); see In re Team Transp., Inc., 996 S.W.2d 256, 259 (Tex. App.—

Houston [14th Dist.] 1999, orig. proceeding). Further, Rule 199.1(a) permits the

deposition “of any person or entity” without any requirement that the proposed deponent

have personal knowledge of the facts. TEX. R. CIV. P. 199.1(a); see also In re Jinsun LLC,

No. 14-15-00568-CV, 2015 WL 5092176, at *4 (Tex. App.—Houston [14th Dist.] Aug. 27,

2015, orig. proceeding) (mem. op.).

Accordingly, we conclude that this case is more like In re Luna or In re Perry than

the cases decided by the Houston Courts of Appeals insofar as Hamilton has settled with

the underinsured motorist and is proceeding directly against the insurer in a case that

does not merely involve extracontractual matters. Compare In re Liberty II, 557 S.W.3d

at 856, and In re Liberty I, 537 S.W.3d at 220, with In re Luna, 2016 WL 6576879, at

*7, and In re Perry, 2019 WL 1723509, at *8. Under these circumstances, we conclude

that the trial court abused its discretion by denying Hamilton’s motion to compel the

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deposition of the opposing party in this lawsuit. See TEX. R. CIV. P. 200.1(a); Crown Cent.

Petroleum Corp., 904 S.W.2d at 127; Mobile Oil Corp., 810 S.W.2d at 323–24; see also

In re Perry, 2019 WL 1723509, at *8;In re Luna, 2016 WL 6576879, at *5; In re Doe, 2011

WL 1158765, at *1; In re Garcia, 2007 WL 1481897, at *2.

However, in so ruling, we conclude that some of the topics requested by Hamilton

include matters that are clearly obtainable from some other source that is more

convenient, less burdensome, or less expensive. See TEX. R. CIV. P. 192.4(a) (providing

that discovery should be limited when “the discovery sought is unreasonably cumulative

or duplicative, or is obtainable from some other source that is more convenient, less

burdensome, or less expensive”). Hamilton requests information, for instance, regarding

the nature of her injuries, something that would be contained in her own medical records.

Allstate is not the appropriate party to be deposed on such a topic. See id.; see also In re

Liberty I, 537 S.W.3d at 222–23; In re Arras, 24 S.W.3d 862, 864 (Tex. App.—El Paso

2000, orig. proceeding); In re Perry, 2019 WL 1723509, at *8.

We have concluded that the trial court abused its discretion in quashing the

deposition in its entirety, but we further conclude that the deposition should be narrowly

focused in scope to matters relevant to Allstate’s defenses in the pending lawsuit.

Accordingly, we sustain in part and overrule in part Hamilton’s first issue. We further

determine that Hamilton lacks an adequate remedy by appeal to cure the trial court’s error

in denying her motion to compel because her ability to present a viable claim or defense

will be impaired by the trial court’s error. See, e.g., Able Supply Co., 898 S.W.2d at 771–

72; In re Hinterlong, 109 S.W.3d at 633; see also In re Perry, 2019 WL 1723509, at *8.

We sustain Hamilton’s second issue.

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 VI. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

Allstate’s response, and the applicable law, is of the opinion that Hamilton has shown

herself entitled to some of the relief sought. Accordingly, we conditionally grant in part

and deny in part, the petition for writ of mandamus. We direct the trial court to (1) withdraw

its June 10, 2020 order denying Hamilton’s motion to compel and (2) grant Hamilton’s

motion to compel the deposition. We are confident that the trial court will limit the

deposition’s scope in accordance with our opinion, and that any further discovery orders

in this case will be tailored to include only matters relevant to this case. The writ of

mandamus shall issue only if the trial court fails to act promptly in accordance with this

opinion.

NORA L. LONGORIA
Justice

Delivered and filed the
10th day of September, 2020.

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